COMES NOW, the accused, by the undersigned counsel ,

pursuant to the leave of court granted to them in open court during the last hearing
of the above-entitled case , most respectfully move the dismissal of the instant
case, by way of demurrer to evidence on the ground that:

THERE WAS NO SUFFICIENT EVIDENCE WHICH WILL

PROVE THE EXISTENCE OF THE CRIME CHARGED; AND IF
THERE WAS SUCH CRIME AS CHARGED EVER EXISTED,
THE PROSECUTOR’S EVIDENCE IS INSUFFICIENT TO PROVE
THE GUILT OF THE ACCUSED BEYOND REASONABLE
DOUBT.

Herein accused was charged for the crime of perjury under Article
__________ of the Revised Penal Code , allegedly committed as follows:

“That on or about September 10, 2009, in the City of Manila, Philippines,

the said accused , did then and there willfully, unlawfully and feloniously make
untruthful statements under oath upon a material matter before a competent
person authorized to administer oath and which the law so requires , to wit: the
said accused executed an (sic) Complaint-Affidavit subscribed and sworn to
before Assistant City Prosecutor Viven Andino, a competent officer authorized to
administer oath by then and there falsely stating therein, among others, as follows:

“xxx. 13.3 Item No. 8 set forth respondent’s malicious and

reckless conclusion that HCPTI discharges and stores coal and
other hazardous cargoes without any environmental safeguards and
the required protective devices when in truth and in fact, all of
HCPTI’s operations are covered by an Environmental Compliance

Page 1 of 6
 Certificate No. 2002-029-215 and are constantly monitored by a
Multi-Partite Monitoring Team pursuant to a Memorandum of
Agreement executed by the DENR-EMB and HCPTI xxx”.

Said accused knowing fully well that the said material allegations or statement
were false and untrue, as the Environmental Compliance Certificate No. 2002-
029-215 covers only the 10-hectare Harbour Centre Port terminal facility and it
does not extend to the area where HCPTI is discharging and storing coal which is
outside the 10 hectare coverage of ECC No. 2002-029-215; and that there is yet
no Memorandum of Agreement that is operational as the Multi-Partite Monitoring
Team had not yet been convened which would monitor , supervise and check on
all of its (HCPTI) operations, thereby making a willful and deliberate assertions
of falsehood on a material matter required by law.”

The prosecution has submitted or presented the following evidence in

support of the crime charged, to wit:

DISCUSSION

On the basis of the facts alleged in the Information, it is incumbent upon the
prosecution to prove the following elements of the crime charged:

a. That the accused made a statement under oath or executed an affidavit

upon a material matter;

Material matter is the main fact which is the subject of the inquiry or
any circumstances which tends to prove that fact, or any fact or
circumstances which tends to corroborate or strengthen the testimony
relative to the subject of inquiry, or which legitimately affects the credit of
any witness who testifies. (U.S. vs. Estraña, 16 Phil. 520)1 (emphasis ours)

1
Page 260, ibid.
Page 2 of 6
 b. That the statement or affidavit was made before a competent officer,
authorized to receive and administer oath;

c. That the statement or affidavit , the respondent made a willful and

deliberate assertion of a falsehood specifically:

“All of HCPTI’s operations are covered by an Environmental

Compliance Certificate No. 2002-029-215 and are constantly
monitored by a Multi-Partite Monitoring Team pursuant to a
Memorandum of Agreement executed by the DENR-EMB and
HCPTI”

since (1) Environmental Compliance Certificate No. 2002-029-215

covers only the 10-hectare Harbour Centre Port terminal facility and it
does not extend to the area where HCPTI is discharging and storing
coal which is outside the 10 hectare coverage of ECC No. 2002-029-
215 (2) there is yet no Memorandum of Agreement that is operational
as the Multi-Partite Monitoring Team had not yet been convened
which would monitor, supervise and check on all of HCPTI
operations.

d. That the sworn statement or affidavit containing the falsity is required

by law (People vs. Bautista , C.A., 40 O.G. 2491)2

Without proving all of the aforesaid facts and/or the elements of the crime
charged, beyond reasonable doubt, on the basis of the strength of the prosecution’s
evidence , it is humbly submitted that the accused is entitled to an acquittal or
dismissal of the present Information filed against them. This is in consonance with
the rulings of our Honorable Supreme Court that:

“Accepted is the jurisprudence that the prosecution, in proving its case

against the accused, should rely upon the strength of its own evidence and
not on the weakness of the defense.” (People vs. Hora , 153 SCRA 21)

2
Page 259 The Revised Penal Code Criminal law Book II by Justice Luis B.Reyes Fifteenth Edition Revised 2001
Page 3 of 6
 “In a criminal case, the defendant is entitled to an acquittal , unless his
guilt is shown beyond reasonable doubt.) (People vs. Bacquiren, L-20153,
June 29, 1967)”.

With regard to the third element as cited, it is humbly submitted that the
prosecution has failed to prove that the accused made a willful and deliberate
assertion of a falsehood when the accused stated “All of HCPTI’s operations are
covered by an Environmental Compliance Certificate No. 2002-029-215”
considering the following:.

a. The prosecution failed to present the very existence of Environmental

Compliance Certificate No. 2002-029-215.

As clearly stated by the private complainant AILEEN ONGKAUKO, to wit:

“xxx
ATTY. FUENTES

Witness

Xxx”

b. The prosecution failed to prove that indeed “coal” was discharged and
stored outside the 10 hectare coverage of ECC No. 2002-029-215.

There was no samples from the alleged mound of coals were

recovered and tested to show and prove that indeed the same was coal.

Neither an expert witness testified to the effect that indeed the mounds
stored and discharged were coals indeed.

Page 4 of 6
 The only person who testified alleging mounds of “coals” were the
AILEEN ONGKAUKO and the Barangay Tanod Iradiel who were never
qualified as expert witnesses.

In view thereof, the said prosecution’s witness are incompetent or not

credible witnesses, they having neither personal knowledge nor the required
expertise to conclude that the mounds stored and discharged were “coal”
indeed. With this, the rule is explicit that:

“Sec. 36. Testimony generally confined to personal

knowledge ; hear say excluded- A witness can testify only to those
facts which he knows of his personal knowledge ; that is, which are
derived from his own perception , except as otherwise provided in
these rules.” (Section 36, Rule 130 of the Rules of Court).

c.

With regard to ____ element as cited, it is humbly submitted that the

prosecution has failed to prove that the accused had

The burden of proof in proving the guilt of the accused beyond reasonable
doubt lies on the prosecution. Any scintilla of doubt should , therefore, be resolved
in favor of the accused.

On the basis of the aforestated prosecution’s evidence, accused

humbly submit that the prosecution failed to prove the existence of the crime
charged , and if there was such crime as charged ever existed, the

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prosecution’s evidence is insufficient to prove the guilt of the accused
beyond reasonable doubt, thus, it is humbly submitted that the dismissal of
the present information is but proper and imperative.

PRAYER

WHEREFORE, it is most respectfully prayed of this case be

dismissed and/or the accused be acquitted of the crime charged.

Such other relief and remedies as may be deemed just and equitable
under the premises are likewise prayed for.

City of Manila. November 30, 2012

ERIC P. FUENTES & ASSOCIATES

LAW OFFICES
1458 Laon Laan cor. Navarra St., Sampaloc
Manila
TELFAX No.7430916 TEL No. 3483360

ERIC P. FUENTES
Roll of Attorney’s No. 51826
IBP No.836943/ Ortigas, Pasig City/ 11.19.10(CY
’11-‘12)
IBP No.904463/ Ortigas, Pasig City/ 10.25.12 (CY
’13-‘14)
PTR No. 0343049/City of Manila/ 01.04.12
MCLE III Compliance No. 0012523/ 04.15.10

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