G.R. No.

155076 February 27, 2006

LUIS MARCOS P. LAUREL, Petitioner, vs. HON. ZEUS C. ABROGAR, Presiding Judge
of the Regional Trial Court, Makati City, Branch 150, PEOPLE OF THE PHILIPPINES&
PHILIPPINE LONG DISTANCE TELEPHONE COMPANY, Respondents.

DOCTRINE: The general rule is that, only movable properties which have physical or material
existence and susceptible of occupation by another are proper objects of theft. Only those
movable properties which can be taken and carried from the place they are found are proper
subjects of theft.
FACTS:
Baynet Co., Ltd. Is being sued for network fraud. Laurel is the board member and corporate
secretary of Baynet. 2 other filipinos and two japanese composed the board. (Baynet) sells "Bay
Super Orient Card" which uses analternative calling patterns called International Simple Resale
(ISR). ISR is a method of routing and completing international long distance calls using
International Private Leased Lines (IPL), cables, antenna or air wave or frequency, which
connect directly to the local or domestic exchange facilities of the terminating country (the
country where the call is destined). The operator of an ISR is able to evade payment of access,
termination or bypass charges and accounting rates, as well as compliance with the regulatory
requirements of the NTC. Thus, the ISR operator offers international telecommunication services
at a lower rate, to the damage and prejudice of legitimate operators like PLDT.
Search warrants were issued against Baynet through PLDT's complaint. The search was followed
by an inquest investigation. The prosecutor found probable cause for THEFT and filed
Information. After preliminary investigation the information was amended to include Laurel and
the other members of the board for THEFT using ISR.
Accused Laurel filed a "Motion to Quash (with Motion to Defer Arraignment)" on the grounds
that RPC does not punish use of ISR, The telephone calls belong to the person calling not to
PLDT, and that no personal property was stolen from PLDT. There is no crime when there is no
law punishing the crime.
ISSUE:
Whether or not international telephone calls using Bay Super Orient Cards through the
telecommunication services provided by PLDT for such calls, or, in short, PLDT’s business of
providing said telecommunication services, are proper subjects of theft under Article 308 of the
Revised Penal Code.

RULING:
The Court found and so hold that the international telephone calls placed by Bay Super Orient
Card holders, the telecommunication services provided by PLDT and its business of providing
said services are not personal properties under Article 308 of the Revised Penal Code. The
construction by the respondents of Article 308 of the said Code to include, within its coverage,
the aforesaid international telephone calls, telecommunication services and business is contrary
to the letter and intent of the law.
Article 308 of the Revised Penal Code defines theft as follows:
Art. 308. Who are liable for theft.– Theft is committed by any person who, with intent to gain but
without violence, against or intimidation of persons nor force upon things, shall take personal
property of another without the latter’s consent.
An information or complaint for simple theft must allege the following elements: (a) the taking
of personal property; (b) the said property belongs to another; (c) the taking be done with intent
to gain; and (d) the taking be accomplished without the use of violence or intimidation of
person/s or force upon things.
One is apt to conclude that "personal property" standing alone, covers both tangible and
intangible properties and are subject of theft under the Revised Penal Code. But the words
"Personal property" under the Revised Penal Code must be considered in tandem with the word
"take" in the law. The statutory definition of "taking" and movable property indicates that,
clearly, not all personal properties may be the proper subjects of theft. The general rule is that,
only movable properties which have physical or material existence and susceptible of occupation
by another are proper objects of theft
Thus, movable properties under Article 308 of the Revised Penal Code should be distinguished
from the rights or interests to which they relate. A naked right existing merely in contemplation
of law, although it may be very valuable to the person who is entitled to exercise it, is not the
subject of theft or larceny. Such rights or interests are intangible and cannot be "taken" by
another. Thus, right to produce oil, good will or an interest in business, or the right to engage in
business, credit or franchise are properties. So is the credit line represented by a credit card.
However, they are not proper subjects of theft or larceny because they are without form or
substance, the mere "breath" of the Congress. On the other hand, goods, wares and merchandise
of businessmen and credit cards issued to them are movable properties with physical and
material existence and may be taken by another; hence, proper subjects of theft.
There is "taking" of personal property, and theft is consummated when the offender unlawfully
acquires possession of personal property even if for a short time; or if such property is under the
dominion and control of the thief. The taker, at some particular amount, must have obtained
complete and absolute possession and control of the property adverse to the rights of the owner
or the lawful possessor thereof. It is not necessary that the property be actually carried away out
of the physical possession of the lawful possessor or that he should have made his escape with
it. Neither asportation nor actual manual possession of property is required. Constructive
possession of the thief of the property is enough.
Respondent PLDT does not acquire possession, much less, ownership of the voices of the
telephone callers or of the electronic voice signals or current emanating from said calls. The
human voice and the electronic voice signals or current caused thereby are intangible and not
susceptible of possession, occupation or appropriation by the respondent PLDT or even the
petitioner, for that matter. PLDT merely transmits the electronic voice signals through its
facilities and equipment. Baynet Card Ltd., through its operator, merely intercepts, reroutes the
calls and passes them to its toll center. Indeed, the parties called receive the telephone calls from
Japan.
In this modern age of technology, telecommunications systems have become so tightly merged
with computer systems that it is difficult to know where one starts and the other finishes. The
telephone set is highly computerized and allows computers to communicate across long
distances. The instrumentality at issue in this case is not merely a telephone but a telephone
inexplicably linked to a computerized communications system with the use of Baynet Cards sold
by the Baynet Card Ltd. The corporation uses computers, modems and software, among others,
for its ISR.
Therefore, the petition was GRANTED. The assailed Orders of the Regional Trial Court and the
Decision of the Court of Appeals are REVERSED and SET ASIDE. The Regional Trial Court is
directed to issue an order granting the motion of the petitioner to quash the Amended
Information.