Justin Francis Bionat

JD-1E
Special Penal Laws - Final Examination

1. Jerry was arrested on a buy-bust operation led by the Philippine Drug Enforcement
Agency for sale of Shabu. During the trial, the prosecution presented the following
witnesses: the arresting officer, who arrested Jerry, marked the three sachets of shabu
with his initials in black marker and also the buy-bust money with his initials also in
black marker; the investigating officer who signed off on the sachets for sending to
the PDEA Crime Laboratory; the Barangay Kagawad who witnessed the marking of
the money and drugs at the police station; the videographer from a locally accredited
radio station who filmed the marking in front of the accused; and the Crime
Laboratory technician who testified that the samples sent to him were tested to be
positive as shabu. During cross examination, the Defense was able to solicit from the
witnesses that Jerry was never subjected to a drug test, whether blood or urinalysis,
and that the PDEA technician got a sample from the sachets with the initials of the
arresting officer in blue. The defense did not present any witnesses on behalf of Jerry.
The case was submitted for decision. As the judge handling this case, how would your
rule? Justify your ruling. (15)

Answer:

I would rule in favor of the defense and dismiss the case on the grounds of
insufficiency of evidence, demurrer to evidence. As the facts of the case are presented herein,
due process needs to be upheld. While true is the fact that Section 38 of R.A. 9165 requires
drug testing for those arrested with the possession of illegal substances, we can conclude,
however, in this case that the evidence is inconclusive. The evidence is inconclusive because
the initials of the arresting officer in the confiscated sachets are of a different ink color, from
black to blue. The quantum of evidence is proof beyond reasonable doubt.

While the arrest happened during a buy-bust operation showing possession of the
sachets containing alleged Shabu, the evidence presented in court is different. While there is
an established protocol in the inquiry, arrest, testing, and presentation of evidence in trial, the
fact that the evidence presented cannot be ascertained, the case should be dismissed.

2. Sarah issued three (3) postdated checks with different dates to accommodate and to
guarantee the obligations of Lisa in favor of another creditor. When the checks issued
by Sarah were presented for payment, the same was dishonored for the reason
“Drawn Against Insufficient Funds”. The creditor directly filed the case before the
Municipal Trial Court and she was then convicted of three counts of violation of B.P. 22.
Sarah filed a motion for reconsideration but was denied by the Court. Sarah wants to
file an appeal. What are your arguments in your memorandum of appeal for the
appellate court to overturn Sarah’s conviction based on these facts presented? (15)

Answer:
 The arguments which I would present in my memorandum of appeal would cite Chua
vs. People wherein my arguments are the following:

First, that there is no presumption of knowledge of the insufficiency of funds on the

part of Sarah who issued the three (3) postdated checks to the petitioner of the case. When
she issued the said checks, she might not have been aware that the account does not have
sufficient funds.

Second, there is also the lack of the receipt of notice of dishonor on the part of the
bank. The bank upon receiving the check which cannot be honored for reason of
insufficiency of funds must send a written notice, stamped and signed by bank, to the issuer
or drawer of the check, Sarah.

Third, once the receipt of notice has been sent by the receiving bank to respondent
Sarah, she would then have a grace period of five (5) days for payment to fix the insufficiency
of the funds in the account. As there was no receipt of notice, we cannot ascertain when the
petitioner tried to encash the check and if the five (5) day grace period was respected for
Sarah to pay the insufficiency of funds.

Fourth and finally, because of the above-mentioned reasons we cannot ascertain the
clear criminal intent on the part of Sarah to defraud the accreditor and to commit the
criminal act in violation of B.P. 22.

3. Daryl is a taxi driver, who drives the car of Jan within the boundary system of Iloilo City.
On his day off, Daryl decided to take the taxi from the garage of Jan in order to make
extra money. He did this without informing Jan. When Jan went to inspect his
inventory of taxi cars, he noticed that one of his cars was missing and immediately
informed the police of the missing car with license plates and description. The police
officer that was taking down the information for the blotter remembered seeing the
car described a few blocks away near a restaurant where he had lunch. The police
officer called the surveilling team to go to the same restaurant to verify his
assumptions. The surveilling team found the taxi that Jan described and with Daryl in
the car. The police officers promptly arrested Jan and charged him with qualified theft
with the facts narrated in the Information. Upon conclusion of the trial, the trial court
found Jan guilty of car napping instead of qualified theft. Daryl’s lawyer filed a motion
for reconsideration to acquit Daryl due to the violation of his client’s right to be
informed of the charges brought upon him. Is the contention of the defense counsel
tenable? Why or why not? (15)

Answer:

Yes, the contention of the defense counsel is tenable. In upholding the due process
guarantees of the 1987 Philippine Constitution, an accused must be informed of the nature
and cause of the accusations against him and the crimes charged.

In the case presented, daryl was charged initially of the crime of qualified theft but
was later on found guilty of carnapping during the finality of the trial. The court committed
grave abuse of discretion by violating due process and convicting him of a crime not initially
charged against him.

The motion for reconsideration in acquitting Daryl is tenable because it violates the
constitutional guarantees of due process.

4. Ricardo was arrested on the charges of possessing and distributing child pornography
by means of social media. The pornographic material was housed in his personal
computer, which was subject to the search warrant signed by a judge. He was
charged with the violation of Republic Act 9775 (Anti-Child Pornography Act) with
Republic Act 10175 (Cybercrime Prevention Act). Ricardo contends that there is
duplicity of charges in the information and that he is also in danger of double
jeopardy and filed a motion to quash the information. Is Ricardo correct? Explain in
full (15)

Answer:

Yes, as explained in Disini vs. Secretary of Justice, the supreme courts would grant a
motion to quash on the grounds that Ricardo cannot be charged with both R.A. 9775 and
R.A. 10175, as this is double jeopardy. Going back to the case of Disini vs. Secretary of Justice,
several laws with their sections and provisions were assailed on their validity as they were
deemed to be similar.

5. Charles buys and sells used garments and accessories, also known as “ukay-ukay”. His
business does not have a license nor does he engage such business in a brick and
mortar store, but rather on the streets with tables near the public market. The police
raided his tables and charged him with “fencing”.
● The investigating public prosecutor in his resolution recommended the filing
of the information for “fencing” since there was enough probable cause that
Charles may have committed such crime based on the facts presented. Is the
resolution correct? (10)
● Is the “presumption of fencing” in direct contradiction to the fundamental
principal of the “presumption of innocence” of the accused? Why or why not?
(10)

Answer:

(a) No. The resolution is not correct section 2 of P.D. 1612 defines fencing as any act of a
person who, with the intent to gain, purchases or acquires items derived from a crime
of robbery or theft. The selling of garments and accessories in an “ukay-ukay” is not an
act of fencing as contemplated in the law. IHe may be charged with a different crime.
(b) No. The presumption of fencing is different from the presumption of innocence. Sec. 5
of P.D. 1612 states that mere possession of items obtained during a crime of robbery or
theft is evidence for the crime of fencing. Additionally presumption of fencing, as
discussed in People vs. Batuampo, states that actual knowledge of the person who
acquires the goods is necessary to be convicted as an accomplice to the crime of
fencing. In presumption of innocence, any person accused in a criminal case enjoys
 the presumption of innocence. This is one of the rights of the accused.

6. Nikko’s father owned a small firearm before passing away. Nikko is already an owner
of other small firearms registered in his name with a permit to carry outside his
residence alongside his license own and possess firearms. One fine day, Nikko instead
brought with him the firearm previously owned by his father. Nikko was involved in an
altercation with a neighbor where the police was called. The police frisked both him
and his neighbor and they found the firearm in Nikko’s possession. Nikko was
subsequently charged with violation of RA 10591 for illegal possession of a loose
firearm. Nikko

contends he did not violate nor intended to violate any law. Based on the facts presented, as
the judge would you convict or acquit Nikko? (10)

Answer:

Yes. As the judge I would convict Nikko on the grounds that he is caught possessing a
firearm that is not legally registered. Under R.A. 10591, a loose firearm is defined as any
unregistered firearm. The fact that he owns other firearms which are legally registered is
immaterial to this case as the one he has in possession during arrest is not registered. He was
also legally searched as a “stop and frisk” is a valid search without a court ordered search
warrant and the search was done in connection with a valid arrest.

7. Pedro killed Petra using a loose firearm. Pedro was charged with separate charges of
possession of a loose firearm and murder with use of a loose firearm. The prosecution
contends that Pedro violated a special law and a general law, thus he may be charged and
convicted of both. Pedro hired you as his defense lawyer. What is your contention? Justify
fully. (10)

Answer:

If I were the defense lawyer of Pedro, I would contend to the fact that he is being
charged with both crimes.

Under Sec. 29 of R.A. 10591, applying the single crime doctrine, Pedro cannot be
charged of the crimes of illegal possession of firearms and murder. Similar to the case of
People vs. Bergante, the accused must only be charged with the crime with the higher
penalty and a single crime.

Pedro must therefore be convicted of murder.