G.R. No. 184355 8.

8.One (1) plastic sachet containing five (5) rounds of live ammos for caliber 5.56
mm
ARNULFO a.k.a. ARNOLD JACABAN, Petitioner,
vs. 9.Six (6) rounds live ammos for caliber 7.62 mm
PEOPLE OF THE PHILIPPINES, Respondent.
10.One (1) pair Upper Handguard for caliber 5.56 mm M16 rifle
DECISION
11.One (1) damage carrying handle for caliber 5.56 rifle.
PERALTA, J.:
without first securing the necessary license/permit issued therefor from any competent
Assailed in this Petition for Review on Certiorari is the Decision1 dated July 30, 2008 of authority.
the Court ofAppeals (CA), Cebu City, which affirmed in toto the decision of the Regional
Trial Court (RTC), Branch 13, Cebu City, finding petitioner guilty of illegal possession of Contrary to law.3
firearms and ammunitions under Presidential Decree (PD) No. 1866, as amended by
Republic Act (RA) 8294. On July 19, 1999, petitioner was arraigned and pleaded not guilty to the charge. 4

An Information was filed with the RTC, Branch 13, Cebu City2 charging petitioner with Trial on the merits ensued.
violation of PD 1866 as amended by RA 8294, to wit:
The facts, as found by the Court of Appeals, are as follows:
That on or about the 16111 day of July 1999, at about 12:45 A.M., in the City of Cebu,
Philippines, and within the jurisdiction of this Honorable Court, the said accused, with
Evidence for the prosecution established that on July 15, 1999, Police Senior Inspector
deliberate intent, did then and there have in his possession and control the following
Ipil H. Dueñas (P/SInsp. Dueñas) of the now defunct Presidential Anti-Organized Crime
articles, to wit:
Task Force (PAOCTF) filed an Application for Search Warrant before Branch 22 of the
RTC, Cebu City, to search the premises of [appellant's] residence at J. Labra St.,
1.One (1) cal. 45 pistol "Llama Gabilondo" with SN515090 Guadalupe, Cebu City and seize the following items.

2.One (1) stainless magazine for caliber 45 pistol loaded with seven (7) rounds of One (1) 7.62 cal M-14 Rifle;
Live ammunitions for caliber .45
Two (2) 5.56 mm M16 Armalite Rifle;
3.Three (3) short magazines for caliber 5.56 mm containing fifty-nine rounds of
live ammos
One (1) 12 gauge Shotgun;
4.Two (2) long magazines for caliber 5.56 mm containing fifty-five (55) rounds of
One (1) .45 cal. Pistol;
live ammos
One (1) .9 mm cal. Pistol
5.One (1) Bandoler for caliber 5.56 mm
A Search Warrant was then immediately issued to the applicant by Judge Pampio A.
6.One (1) bullet [links] for caliber 7.62 mm with twenty-eight (28) rounds of live
Abarintos.
ammos for caliber 7.62 mm
At about 12:45 in the morning of July 16, 1999, the search warrant was implemented by
7.One (1) bullet clips for caliber 30 M1 Garrand Rifle containing eight (8) rounds
P/S Insp. Dueñas as the team leader, SPO2 Eric Mendoza, SPO2 Eric Abellana. PO1
of live ammos
Allan Jalagpas, PO3 Epifania Manila Sarte and other members of the PAOCTF. Before
reaching appellant's house, the policemen invited three (3) barangay tanods from
Guadalupe's Barangay outpost to accompany them to the house of the appellant.
Upon arrival to appellant's house, SPO2 Abellana served the search warrant to appellant
who was just inside the house together with his wife and other ladies. Upon informing
1awp++i1
appellant of the search warrant, he became angry and denied having committed any
illegal activity. P/SInsp. Dueñas assured appellant that he had nothing to worry about if
the PAOCTF would not find anything.
The team proceeded to search the living room in the presence of three tanods and the
appellant himself. The team continued to search the room where SPO2 Abellana found a
calibre .45 placed in the ceiling. Appellant, who was at the living room that time, rushed
to the room and grappled with SPO2 Abellana but failed to get hold of the gun.
After an exhaustive search was done, other firearms and ammunitions were recovered
from the searched premises. An inventory was made at the living room of appellant in the
presence of appellant himself, the barangay tanods and other persons present during the
search. After appellant and the witnesses signed the inventory receipt, the team
proceeded back to their office with appellant and the confiscated items.
Police Officer IV Dionisio V. Sultan, Chief Clerk of the Firearms and Explosives Division
of the Philippine National Police-Visayas (FED PNP-Visayas), testified that he prepared
a certification dated April 29, 2002. Based on their office's master, appellant is not
licensed to possess any kind of firearm or ammunition.
For the defense, they presented witness Felipenerie Jacaban, older sister of the
appellant, who testified as to her presence during the conduct of the search. According to
Felipenerie, at about 12:45 in the morning of July 16, 1999, policemen conducted a raid
in the house of Gabriel Arda (uncle of appellant). The policemen who implemented the
warrant were looking for his brother, herein appellant, so she went to appellant's house
and informed him that a raid was conducted at their uncle's house and policemen were
looking for him. When appellant arrived at his uncle's house, policemen searched around
the house and a pistol was subsequently recovered. Felipenerie claims that the
recovered pistol was allegedly pledged by a policeman to her father. She also testified
that appellant never made any protest and merely observed the proceeding. 5
On July 12, 2005, the RTC rendered its Decision6 convicting petitioner of the crime
charged, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered finding ACCUSED ARNULFO a.k.a.
ARNOLD JACABAN GUILTY of the crime of violation of PD 1866, as amended by RA
8294 and sentences him to a penalty of imprisonment of from SIX (6) YEARS AND ONE
(1) DAY of prision mayor, as minimum to SIX (6) YEARS AND EIGHT (8) MONTHS, as
maximum, plus fine in the amount of P30,000.
With cost against the accused.
SO ORDERED.7
In so ruling, the RTC found that the prosecution had established all the elements of the
crime charged. Petitioner was in possession of the firearm, ammunitions and other items
with intent to possess the same as they were found inside his house; and he had no
license or permit to possess the same from any competent authority. The RTC did not
give credence to petitioner’s claim that he is not the owner of the house but his uncle,
Gabriel Arda, as the latter did not testify at all and was not in the house at the time of the
raid. It was petitioner and his wife who were at the house at 12:45 a.m. of July 16, 1999;
and that petitioner did not protest his arrest.
Petitioner appealed his conviction to the CA. After the respective briefs had been filed,
the case was submitted for decision.
On July 30, 2008, the CA issued its assailed Decision which affirmed in toto the RTC
decision.
The CA agreed with the RTC’s conclusion that the elements of the crime charged were
duly proved by the prosecution. Anent petitioner’s claim of the alleged discrepancy in the
testimony of PO3 Sarte on the time the raid was conducted, the CA found the same to be
minor and did not damage the essential integrity of the prosecution’s evidence in its
material whole; and that such discrepancy was explained by PO3 Sarte in her testimony.
Hence, this petition for review filed by petitioner.
Petitioner argues that the RTC decision finding him guilty of the crime charged is
premised on its erroneous conclusion that he is the owner the house where the
unlicensed firearms and ammunitions were found. He reiterated his claim that there was
discrepancy in the testimony of PO3 Sarte as to the time the raid was conducted.
As a rule, only questions of law may be raised in a petition for review under Rule 45 of
the Rules of Court.8 As such, we are not duty-bound to analyze and weigh all over again
the evidence already considered in the proceedings below. The findings of facts by a trial
court, when affirmed by the Court of Appeals, are binding on the Supreme Court.9 This
rule, however, is not without exceptions. 10 However, petitioner failed to show that his case
falls under any of the exceptions.
Section 1 of PD 1866, as amended by RA 8294, provides:
Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of
Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture
of Firearms or Ammunition. - ….....
The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos
(P30,000.00) shall be imposed if the firearm is classified as high powered firearm which
includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as
caliber .40, .41, .44, 45 and also lesser calibered firearms but considered powerful such
as caliber .357 and caliber .22 center-fire magnum and other firearms with firing
capability of full automatic and by burst of two or three: Provided, however,
That no other crime was committed by the person arrested.
The essential elements in the prosecution for the crime of illegal possession of firearms
and ammunitions are: (1) the existence of subject firearm; and, (2) the fact that the
accused who possessed or owned the same does not have the corresponding license for
it.11 The unvarying rule is that ownership is not an essential element of illegal possession
of firearms and ammunition.12 What the law requires is merely possession, which
includes not only actual physical possession, but also constructive possession or the
subjection of the thing to one’s control and management. 13
Once the prosecution evidence indubitably points to possession without the requisite
authority or license, coupled with animus possidendi or intent to possess on the part of
the accused, conviction for violation of the said law must follow. Animus possidendi is a
state of mind, the presence or determination of which is largely dependent on attendant
events in each case. It may be inferred from the prior or contemporaneous acts of the
accused, as well as the surrounding circumstances.14
Here, the prosecution had proved the essential elements of the crime charged under PD
1866 as amended by RA 8294. The existence of the seized firearm and the ammunitions
was established through the testimony of PO3 Sarte. There was an inventory of the
items seized which was made in the presence of the petitioner and the three barangay
tanods who all voluntarily signed the inventory receipt. PO3 Sarte identified all the seized
items in open court.
It was convincingly proved that petitioner had constructive possession of the gun and the
ammunitions, coupled with the intent to possess the same. Petitioner's act of
immediately rushing from the living room to the room where SPO2 Abellana found a
calibre .45 and grappled with the latter for the possession of the gun proved that the gun
was under his control and management. He also had the animus possidendi or intent to
possess the gun when he tried to wrest it from SPO2 Abellana.
Petitioner's lack of authority to possess the firearm was established by the testimony of
Police Officer IV Dionisio V. Sultan, Chief Clerk of the Firearms and Explosive Division of
the Philippine National Police-Visayas (FED-PNP- Visayas) that petitioner is not licensed
to possess any kind of firearm or ammunition based on the FED-PNP master list.
Anent petitioner's argument that the house where the firearm was found was not owned
by him is not persuasive. We quote with approval what the RTC said in debunking such
issue which was affirmed by the CA, thus:
If the accused is not really the owner of the house where the firearm, ammunitions and
other items were found, he should have protested his arrest. But in the instant case
Felipenieri (sic) Jacaban said that there was no protest at all.
If the accused is not really the owner of the house raided by the police officers, what was
he and his wife doing there at 12:45 in the morning?
The defense asserted that the house of the accused was already demolished when the
road fronting it was widened. But the defense failed to present the tax declaration
covering the said house before it was demolished.
xxx xxx xxx
Gabriel Arda, the alleged owner of the house did not testify. He was allegedly suffering
from hypertension. The defense, however, did not file a motion to take his deposition.
Felipenieri likewise testified that at the time of the raid, the owner of the house was not
present. Her testimony bolsters the fact that Gabriel Arda is not really the owner of the
house where the raid was conducted.15
Even assuming that petitioner is not the owner of the house where the items were
recovered, the ownership of the house is not an essential element of the crime under PD
1866 as amended. While petitioner may not be the owner, he indeed had control of the
house as shown by the following circumstances: (1) When the PAOCTF went to the
house to serve the search warrant, petitioner was very angry and restless and even
denied having committed any illegal act, but he was assured by P/SInsp. Dueñas that he
has nothing to answer if they would not find anything, thus, he consented to the search
being conducted; (2) while the search was ongoing, petitioner merely observed the
conduct of the search and did not make any protest at all; and
(3) petitioner did not call for the alleged owner of the house.
As to the alleged discrepancy in PO3 Sarte's testimony as to the time the search was
conducted, we agree with the CA when it found:
Appellant likewise questions the discrepancies in the testimony of prosecution witness MONTHS and ONE (1) DAY of prision mayor minimum in its medium period, as
PO3 Epifania Sarte. Appellant contends that PO3 Sarte could not even testify correctly maximum, and to pay a fine of P30,000.00.
as to the time the raid was conducted. According to appellant, the established fact on
records shows that it was conducted past midnight of July 16, 1999 while witness PO3 SO ORDERED.
Sarte asserted that it was conducted at 12:45 high noon of said date.

It bears stressing that minor discrepancies might be found in her testimony, but this does
not damage the essential integrity of the evidence in its material whole, nor should it
reflect adversely on the witness' credibility as it erases suspicion that the same was
perjured. Here, prior testimony of PO3 Sarte as to the time of the raid is considered only
a trivial matter which is not even enough to destroy or discredit her credibility. Besides,
she was able to explain her mistake when she previously stated that the search was
conducted at 12:45 noon of July 16, 1999 instead of 12:45 in the morning as she was
hungry when she first testified. The record likewise does not reveal that PO3 Sarte was G.R. No. 182926, June 22, 2015
actuated by ill-motive in so testifying against appellant. Thus, when there is nothing to
indicate that a witness was actuated by improper motives, her positive declarations on ANA LOU B. NAVAJA, Petitioner, v. HON. MANUEL A. DE CASTRO, OR
the witness stand, made under solemn oath, deserve full faith and credence. 16
THE ACTING PRESIDING JUDGE OF MCTC JAGNA-GARCIA-
HERNANDEZ, DKT PHILS., INC., REPRESENTED BY ATTY. EDGAR
The RTC sentenced petitioner to an imprisonment of six (6) years and one (1) day BORJE, Respondents.
of prision mayor, as minimum, to six (6) years and eight (8) months, as maximum, plus
fine in the amount of P30,000.00. The CA upheld the RTC. Under PD 1866, as amended
by RA 8294, the penalty for illegal possession of firearms classified as high powered, like DECISION
cal. 45, is prision mayor minimum and a fine of P30,000.00. Applying Article 64 of the
Revised Penal Code, the maximum period of the imposable penalty cannot PERALTA, J.:
exceed prision mayor minimum in its medium period, there being no mitigating or
aggravating circumstance, i.e., six (6) years, eight (8) months and one (1) day to seven This is a petition for review on certiorari under Rule 45 of the Rules of Court,
(7) years and four (4) months. The minimum period, as provided in the Indeterminate assailing the Decision1 dated August 28, 2007 and the Resolution2 dated May
Sentence Law, shall be within the range of prision correccional in its maximum 7, 2008 rendered by the Court of Appeals (CA) in CA-G.R. SP No. 02353,
period, i.e., four (4) years, two (2) months and one (1) day to six (6) years, the penalty which affirmed the Order dated September 21, 2006 issued by the Regional
next lower in degree to prision mayor minimum.17 Thus, the minimum penalty imposable Trial Court (RTC) of Loay, Bohol, Branch 50, in SP Civil Action No. 0356.
must be modified. Albeit, PD 1866, as amended by RA 8294, is a malum prohibitum and
that the Revised Penal Code is generally not applicable, it has been held that when a The factual antecedents are as follows: ChanRob lesVirtua lawl ibrary

special law, which is a malum prohibitum, adopts the nomenclature of the penalties in the
Revised Penal Code, the latter law shall apply. 18
The instant case arose from a Complaint-Affidavit3 filed by private respondent
DKT Philippines, Inc., represented by Atty. Edgar Borje, against petitioner
While in 2013, RA 10951 entitled "An Act Providing for a Comprehensive Law on
Ana Lou B. Navaja, alleging that while she was still its Regional Sales
Firearms and Ammunitions and Providing Penalties for Violation Thereof" took effect, the
Manager, she falsified a receipt by making it appear that she incurred meal
same finds no application in this case as the law provides for stiffer penalties which is not
at all favorable to the accused. expenses in the amount of P1,810.00, instead of the actual amount of
P810.00, at Garden Cafe, Jagna, Bohol, and claimed reimbursement for it.
WHEREFORE, in view of all the foregoing, the Decision of the Court of Appeals, dated
July 30, 2008, is AFFIRMED WITH MODIFICATION. Petitioner is sentenced to suffer the Navaja is charged with the crime of falsification of private document before
indeterminate penalty of imprisonment ranging from SIX (6) YEARS of prision the Municipal Circuit Trial Court (MCTC) of Jagna-Garcia-Hernandez, Bohol,
correccional in its maximum period, as minimum, to SIX (6) YEARS, EIGHT (8)
docketed as Criminal Case No. 2904. The accusatory portion of the
Information filed against her reads:chanRoblesvirtualLawli brary
That on or about the 2nd day of October 2003, in the municipality of Jagna,
province of Bohol, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, with intent to prejudice a juridical person,
did then and there willfully, unlawfully and feloniously falsify a commercial
receipt No. 6729 of Garden Cafe, Jagna, Bohol, by making an alteration or
intercalation in the said receipt No. 6729 from EIGHT HUNDRED TEN PESOS
(P810.00) to ONE THOUSAND EIGHT HUNDRED TEN PESOS (P1,810.00) and
thereafter accused used the said receipt to claim reimbursement with DKT
Philippines, Inc. represented by Atty. Edgar Borje and accused as a result of
which received the amount of P1,810.00 to her own benefit; to the damage
and prejudice of the offended party in the amount to be proved during trial.
Acts committed contrary to the provision of Article 172, No. 2, in relation to
Article 171, No. 6 of the Revised Penal Code.
Tagbilaran City, (for Jagna, Bohol) February 10, 2005.4
On August 1, 2005, Navaja filed a Motion to Quash and Defer
Arraignment5 on the ground that none of the essential elements of the crime
of falsification of private document occurred in Jagna, Bohol, hence, the
MCTC had no jurisdiction to take cognizance of the case due to improper
venue.
In the Order dated November 2, 2005, the MCTC denied the motion to quash
and set the case for arraignment, the decretal portion of the Order reads:
chanRoblesvirtualLaw library
WHEREFORE, the motion is DENIED, but considering however that accused
has already submitted themselves to the jurisdiction of the court by filing
cash bond for their respective temporary liberty, set this case for
ARRAIGNMENT on November 22, 2005, at 10:00 o'clock in the morning at the
Session Hall, 10th MCTC, Jagna, Bohol.
The previous Court Order setting these cases for arraignment on November
09, 2005, is hereby set aside.
SO ORDERED.6
Navaja filed a motion for reconsideration of the November 2, 2005 Order, but
the MCTC denied it in a Resolution7 dated January 24, 2006.
Navaja filed a petition for certiorari8 before the RTC, assailing the November
2, 2005 Order and January 24, 2006 Resolution of the MCTC for having been
issued with grave abuse of discretion.
On September 21, 2006, the RTC issued an Order denying the petition
for certiorari for lack of legal basis or merit.9 On Navaja's contention that the
case for falsification of private document against her was filed with the MCTC
which has no jurisdiction due to wrong venue, hence, the RTC ruled: chanRoblesvirtualLawl ibrary
The contention of the petitioner is untenable. As correctly pointed out by the
MCTC, the improper venue was already resolved squarely by the Regional
State Prosecutor when he held that “there are sufficient evidences (sic)
indicating that the falsification took place in Jagna”.
This court notes that in that particular resolution, reference was made to the
sworn statement of Ms. Cherly Lavaro who narrated that after she issued the
receipt to Ms. Navaja, the latter borrowed her pen and in her presence wrote
something on the said receipt. The Regional State Prosecutor then concluded
that Ms. Lavaro's statement “describes an apparent scheme or pattern of
altering receipts right after issuance. The borrowing of the cashier's pen and
the use thereof must have been intended to create an impression that the
receipt was prepared by the cashier herself.”
In the same affidavit, Ms. Lavaro corroborated the affidavit of another
witness, which categorically states that Ms. Navaja was in Jagna when the
questioned receipt was issued.
If the court were to follow the logic of the petition, her claim that her request
for reimbursement was made in Cebu City not in Jagna, Bohol, would likewise
give no showing or indication that the falsification was done in Cebu City. In
other words, the said contention would necessarily result in a “neither here
no there” situation.10
Navaja elevated the case on appeal with the CA.
In the Decision dated August 28, 2007, the CA dismissed Navaja's appeal and
affirmed in toto the September 21, 2006 RTC Order.
Navaja filed a motion for reconsideration but the CA denied it in the
Resolution dated May 7, 2008. Aggrieved, she filed the instant petition for
review on certiorari, raising the following issues:chanRoblesvirtualLawlib rary
I. THE MUNICIPAL TRIAL COURT OF JAGNA, BOHOL[,] DOES NOT HAVE
JURISDICTION OVER THE INSTANT CRIMINAL CASE.
i. Not one of the essential elements of the alleged crime of falsification of a
private document was committed in Jagna, Bohol.
ii. Venue in criminal cases is jurisdictional and cannot be presumed or
established from the alleged acts of the petitioner on a totally different and
unrelated time and occasion.
iii. The strict rules on venue in criminal cases were established for the
protection of the rights of the accused and to prevent undue harassment and
oppression.chanroblesvirtuallawl ibrary
II. HEREIN PETITIONER PROPERLY AVAILED OF THE REMEDY OF FILING A
PETITION FOR CERTIORARI IN QUESTIONING IMPROPER VENUE IN THE
INSTANT CASE.
III. SETTLED LAW AND JURISPRUDENCE CLEARLY PERMITS THE FILING OF A
PETITION FOR CERTIORARI TO QUESTION THE DENIAL OF A MOTION TO
QUASH.11
The petition lacks merit.
On the substantive issue of whether the MCTC of Jagna, Bohol, has
jurisdiction over her case for falsification of a private document, Navaja
argues that not one of the three (3) essential elements 12 of such crime was
shown to have been committed in Jagna, Bohol. She insists that there is no
showing in the Information, or even in the complaint-affidavit and the
annexes thereto that the crime of falsification of a private document was
committed or consummated in Jagna, Bohol. In particular, the allegation in
the complaint-affidavit that the subject receipt was issued by Garden Cafe in
Jagna, Bohol, cannot determine the venue because the place of issuance of
the receipt is not an element of the said crime. It was also impossible for her
to have committed the crime in Jagna, Bohol, because the alleged request for
reimbursement under the Weekly Travel Expense Report for September 29 to
October 4, 2003, was prepared and submitted on October 6, 2003 in Cebu
City, while the subject receipt was issued on October 2, 2003 by Garden Cafe
in Jagna, Bohol. She further insists that at the time of the issuance of the
subject receipt on October 2, 2003, the element of damage was absent,
hence, there is no crime of falsification of private document to speak of. She
explains that any damage that private respondent could have suffered would
only occur when it pays the request for reimbursement in the Travel Expense
Report submitted on October 6, 2003, but not before that date, much less at
time of the issuance of the said receipt.
Navaja's arguments are misplaced.
Venue in criminal cases is an essential element of jurisdiction.13 This principle
was explained by the Court in Foz, Jr. v. People,14 thus: chanRoblesvirtualLawlib rary
It is a fundamental rule that for jurisdiction to be acquired by courts in
criminal cases the offense should have been committed or any one of its
essential ingredients took place within the territorial jurisdiction of the court.
Territorial jurisdiction in criminal cases is the territory where the court has
jurisdiction to take cognizance or to try the offense allegedly committed
therein by the accused. Thus, it cannot take jurisdiction over a person
charged with an offense allegedly committed outside of that limited territory.
Furthermore, the jurisdiction of a court over the criminal case is determined
by the allegations in the complaint or information. And once it is so shown,
the court may validly take cognizance of the case. However, if the evidence
adduced during the trial show that the offense was committed somewhere
else, the court should dismiss the action for want of jurisdiction.15
In determining the venue where the criminal action is to be instituted and the
court which has jurisdiction over it, Section 15(a), Rule 110 of the 2000
Revised Rules of Criminal Procedure provides: chanRoblesvirtualLawlibrary
(a) Subject to existing laws, the criminal action shall be instituted and tried in
the court or municipality or territory where the offense was committed or
where any of its essential ingredients occurred. chanroblesvirtuallaw library
Section 10, Rule 110 of the 2000 Revised Rules of Criminal Procedure
pertinently states:chanRoblesvirtualLawl ibrary
Place of commission of the offense. – The complaint or information is
sufficient if it can be understood from its allegations that the offense was
committed or some of its essential ingredients occurred at some place within
the jurisdiction of the court, unless the particular place where it was
committed constitutes an essential element of the offense charged or is
necessary for its identification. chanroblesvirtuallawli brary
In Union Bank of the Philippines v. People,16 the Court said that both
provisions categorically place the venue and jurisdiction over criminal cases
not only in the court where the offense was committed, but also where any of
its essential ingredients took place. In other words, the venue of action and
of jurisdiction are deemed sufficiently alleged where the Information states
that the offense was committed or some of its essential ingredients occurred
at a place within the territorial jurisdiction of the court.
In cases of falsification of private documents, the venue is the place where
the document is actually falsified, to the prejudice of or with the intent to
prejudice a third person, regardless whether or not the falsified document is
put to the improper or illegal use for which it was intended.17 chanrobleslaw
Contrary to Navaja's argument that the MCTC of Jagna, Bohol, has no
jurisdiction over the case because not one of the essential elements of
falsification of private document was committed within its jurisdiction, the
allegations in the Information and the complaint-affidavit make out a prima
facie case that such crime was committed in Jagna, Bohol. In particular, the
Information clearly alleged that she committed such crime thereat, to wit:
That on or about the 2nd day of October 2003, in the municipality of
Jagna, province of Bohol, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, with intent to prejudice a
juridical person, did then and there willfully, unlawfully and feloniously
falsify a commercial receipt No. 6729 of Garden Cafe, Jagna, Bohol,
by making an alteration or intercalation in the said receipt No. 6729 from
EIGHT HUNDRED TEN PESOS (P810.00) to ONE THOUSAND EIGHT HUNDRED
TEN PESOS (P1,810.00) and thereafter accused used the said receipt to claim
reimbursement with DKT Philippines, Inc. represented by Atty. Edgar Borje
and accused as a result of which received the amount of P1,810.00 to her
own benefit; to the damage and prejudice of the offended party in the
amount to be proved during trial. xxx18
Likewise, the Complaint-Affidavit dated February 18, 2004 alleged that the
she committed the said crime in Jagna, Bohol, viz:
chanRoblesvirtualLawli brary
“4. Among the expenses she reimbursed from DKT is the amount of
Php1,810.00 she supposedly incurred at Garden's Cafe, Jagna
branch. Photocopy of the receipt dated 02 October 2003 she sent to the DKT
office in Metro Manila is hereto attached as Annex “C”.
5. However, upon recent field investigation of Navaja's expenses in Bohol, it
was found that the actual amount she incurred at Garden's (sic) Cafe is only
Php810.00 Photocopy of the duplicate original official receipt (pink copy)
certified true and correct by the cashier of Garden's Cafe, Jagna is hereto
attached as Annex “D”.
6. Evidently, Navaja falsified the receipt in Bohol upon receiving it with
the intent of causing damage to DKT.”19
Guided by the settled rule that the jurisdiction of the court is determined by
the allegations of the complaint or information and not by the result of
proof20, the Court holds that Navaja's case for falsification of private
document falls within the territorial jurisdiction of the MCTC of Jagna, Bohol.
Meanwhile, Navaja's defense that it was impossible for her to have committed
the crime in Jagna, Bohol, cannot be sustained at this point where the
prosecution has yet to present evidence to prove the material allegations of
chanRoblesvirtualLawl ibrary
the charge against her, which include the place where the subject receipt was
falsified. However, given that the defense of lack of jurisdiction due to
improper venue may be raised at any stage of the proceeding, the Court
stresses that if the evidence adduced during the trial would show that the
crime was indeed committed outside its territorial jurisdiction, the MCTC
should dismiss the case based on such ground.
On Navaja's claim that there is no crime of falsification of private document
to speak of because at the time of the issuance of the subject receipt on
October 2, 2003, the element of damage was absent, the Court sustains the
RTC ruling that such damage need not be present, as Article 172 (2)21 of the
Revised Penal Code, as amended, states that mere intent to cause such
damage is sufficient.22
chanrobleslaw
Navaja further contends that the CA's reliance on the findings of the Regional
State Prosecutor as to the sworn statement of a certain Cheryl Labarro23 for
purposes of determining venue was misplaced, as her sworn statement
pertains to an incident in Miravilla Resort in Tagbilaran City, which was
entirely separate and distinct from the facts material to the case. She adds
that the CA's reliance on the said statement in upholding the venue of the
case clearly runs afoul with the provisions of Section 34, Rule 130 of the
Rules of Court.24 She submits that nowhere in the Rules of Court is it allowed
that the actions of the accused on a different occasion maybe used to confer
venue in another case, since venue must be determined solely and
exclusively on the facts obtaining in the instant case and cannot be inferred
or presumed from other collateral allegations.
The Court finds no merit in Navaja's foregoing contentions which boil down to
the factual issue of whether the crime of falsification of private document was
committed in Jagna, Bohol or in Cebu City.
Section 1, Rule 45 of the Rules of Court states that petitions for review
on certiorari "shall raise only questions of law which must be distinctly set
forth." In Pagsibigan v. People, et al.,25 the Court held:
chanRoblesvirtualLawlibra ry
A petition for review under Rule 45 of the Rules of Court should cover only
questions of law. Questions of fact are not reviewable. A question of law
exists when the doubt centers on what the law is on a certain set of facts. A
question of fact exists when the doubt centers on the truth or falsity of the
alleged facts.
There is a question of law if the issue raised is capable of being resolved
without need of reviewing the probative value of the evidence. The issue to
be resolved must be limited to determining what the law is on a certain set of
facts. Once the issue invites a review of the evidence, the question posed is
one of fact.
chanroblesvirtuallaw library
Whether the crime of falsification of private document was committed in
Jagna, Bohol or in Cebu City, is a question of fact. Indeed, in the exercise of
its power of review, the Court is not a trier of facts and, subject to certain
exceptions, it does not normally undertake the re-examination of the
evidence presented by the parties during trial.26 In certain exceptional cases,
however, the Court may be urged to probe and resolve factual issues, viz:
chanRoblesvirtualLawl ibrary
(a) When the findings are grounded entirely on speculation, surmises, or
conjectures;
(b) When the inference made is manifestly mistaken, absurd, or impossible;
(c) When there is grave abuse of discretion;
(d) When the judgment is based on a misapprehension of facts;
(e) When the findings of facts are conflicting;
(f) When in making its findings the CA went beyond the issues of the case, or
its findings are contrary to the admissions of both the appellant and the
appellee;
(g) When the CA’s findings are contrary to those by the trial court;
(h) When the findings are conclusions without citation of specific evidence on
which they are based;
(i) When the facts set forth in the petition, as well as in the petitioner’s main
and reply briefs, are not disputed by the respondent;
(j) When the findings of fact are premised on the supposed absence of
evidence and contradicted by the evidence on record; or
(k) When the CA manifestly overlooked certain relevant facts not disputed by
the parties, which, if properly considered, would justify a different
conclusion.27
Navaja failed to show that any of these circumstances is present.
It also bears emphasis that the factual findings of the appellate court
generally are conclusive, and carry even more weight when said court affirms
the findings of the trial court, absent any showing that the findings are totally
devoid of support in the records, or that they are so glaringly erroneous as to
constitute grave abuse of discretion.28 In this case, the CA, the RTC and the
MCTC all agree that the issue of improper venue was already resolved by the
Regional State Prosecutor when he held that “there are sufficient evidences
(sic) indicating that the falsification took place in Jagna.”29 The Court
perceives no compelling reason to disturb such factual finding.
Anent Navaja's claim that the MCTC simply made reference to the findings of
the Regional State Prosecutor without specifying the factual and legal bases
of its resolution, the Court finds that the RTC had squarely addressed such
issue as follows:chanRoblesvirtualLawl ibrary
This court notes that in that particular resolution, reference was made to the
sworn statement of Ms. Cherly Lavaro who narrated that after she issued the
receipt to Ms. Navaja, the latter borrowed her pen and in her presence wrote
something on the said receipt. The Regional State Prosecutor then concluded
that Ms. Lavaro's statement “describes an apparent scheme or pattern of
altering receipts right after issuance. The borrowing of the cashier's pen and
the use thereof must have been intended to create an impression that the
receipt was prepared by the cashier herself.”
In the same affidavit, Ms. Lavaro corroborated the affidavit of another
witness, which categorically states that Ms. Navaja was in Jagna when the
questioned receipt was issued.
If the court were to follow the logic of the petition, her claim that her request
for reimbursement was made in Cebu City not in Jagna, Bohol, would likewise
give no showing or indication that the falsification was done in Cebu City. In
other words, the said contention would necessarily result in a “neither here
no there” situation.30
On Navaja's argument that the CA's reliance on Labarro's 31 aforesaid
statement in upholding the venue of the case violates Section 34, Rule 130 of
the Rules of Court,32 the Court holds that such evidentiary rule has no
bearing in determining the place where the crime was committed for
purposes of filing a criminal information which merely requires the existence
of probable cause. In Fenequito v. Vergara, Jr.,33 the Court expounded on the
concept of probable cause in this wise: chanRoblesvirtualLaw library
Probable cause, for the purpose of filing a criminal information, has been
defined as such facts as are sufficient to engender a well-founded belief that
a crime has been committed and that respondent is probably guilty thereof.
The term does not mean "actual and positive cause" nor does it import
absolute certainty. It is merely based on opinion and reasonable belief.
Probable cause does not require an inquiry into whether there is
sufficient evidence to procure a conviction. It is enough that it is
believed that the act or omission complained of constitutes the offense
charged.
A finding of probable cause needs only to rest on evidence showing that,
more likely than not, a crime has been committed by the suspects. It need
not be based on clear and convincing evidence of guilt, not on evidence
establishing guilt beyond reasonable doubt, and definitely not on evidence
establishing absolute certainty of guilt. In determining probable cause,
the average man weighs facts and circumstances without resorting to
the calibrations of the rules of evidence of which he has no technical
knowledge. He relies on common sense. What is determined is whether
there is sufficient ground to engender a well-founded belief that a crime has
been committed, and that the accused is probably guilty thereof and should
be held for trial. It does not require an inquiry as to whether there is
sufficient evidence to secure a conviction.34
Also, Navaja insists that the rule on venue should have been construed
liberally in favor her favor as the accused, and strictly against private
respondent, given its purpose of preventing harassment and inconvenience
by compelling the accused to appear in a different court from that of the
province where the crime was committed. Yet, private respondent willfully
chose to prosecute separately the other cases for falsification of private
document against her in different jurisdictions, namely, Cebu City, Bacolod
City, Iloilo City and Tagbilaran, Bohol, to harass and drain her financial
resources, when all these criminal cases, involving minimal amounts of actual
damages,35 should have been filed in one (1) criminal jurisdiction to avoid
multiplicity of actions.
The Court overrules Navaja's assertions, and upholds the RTC's sound ruling
thereon:chanRoblesvirtualLaw library
The petitioner's insistence that all the criminal complaints filed against her
should be filed in one jurisdiction would be a blatant violation of the law on
jurisdiction as one cannot file a criminal case other than where the offense
was allegedly committed.
In short, if it so happens that several offenses are alleged to have been
committed in different venues, then it is just unfortunate that whatever
complaints have to be filed, will have to filed in those different venues. To do
otherwise would be procedurally fatal.36
To stress, in criminal proceedings, improper venue is lack of jurisdiction
because venue in criminal cases is an essential element of
jurisdiction.37 Unlike in a civil case where venue may be waived, this could
not be done in a criminal case because it is an element of jurisdiction. Thus,
one cannot be held to answer for any crime committed by him except in the
jurisdiction where it was committed. Be that as it may, Section 5 (4), Article
VIII of the 1987 Constitution provides that the Court has the power to order
a change of venue or place of trial to avoid a miscarriage of justice.
Consequently, where there are serious and weighty reasons present, which
would prevent the court of original jurisdiction from conducting a fair and
impartial trial, the Court has been mandated to order a change of venue so
as to prevent a miscarriage of justice.38 That private respondent filed several
criminal cases for falsification in different jurisdictions, which unduly forced
Navaja to spend scarce resources to defend herself in faraway places can
hardly be considered as compelling reason which would prevent the MCTC
from conducting a fair and impartial trial.
Besides, it is erroneous for Navaja to argue that the separate filing of the
falsification cases she allegedly committed in different jurisdictions would
result in multiplicity of actions. Such separate filing of cases is only consistent
with the principles that there are as many acts of falsification as there are
documents falsified39 and that the venue of such cases is where the
document was actually falsified40.
The Court now resolves the second and third procedural issues.
On the second issue, Navaja states that she did not commit a grave
procedural error in filing a petition for certiorari from the denial of her motion
to quash. She posits that venue is an element of the jurisdiction of the court
over the subject matter of a criminal proceeding, and that lack of jurisdiction
over the subject matter may be interposed at any stage of the proceeding.
Thus, even if a party fails to file a motion to quash, the accused may still
question the jurisdiction of the court later on, and such objection may be
raised or considered motu propio by the court at any stage of the proceeding
or on appeal.
On the third issue, Navaja asserts that the Supreme Court has allowed the
filing of a petition for certiorari to question the denial of a motion to quash in
cases where grave abuse of discretion was patently committed, or when the
lower court acted without or in excess of its jurisdiction. She claims that not
only did the lower court commit grave abuse of discretion in denying the
motion to quash, but there is likewise the issue of improper venue that need
to be settled with finality and dispatch. In support of her assertion, she cites
a ruling41 that when the court has no jurisdiction at the time of the filing of
the complaint, the court should dismiss the case, instead of ordering its
transfer.
Apropos to the second and third procedural issues is Querijero v. Palmes-
Limitar42 where the Court reiterated the fundamental principle that an order
denying a motion to quash is interlocutory and, therefore, not appealable, nor
can it be the subject of a petition for certiorari, thus:
chanRoblesvirtualLawlib rary
In Zamoranos v. People, this Court emphasized that “a special civil action
for certiorari is not the proper remedy to assail the denial of a motion to
quash an information. The established rule is that, when such an adverse
interlocutory order is rendered, the remedy is not to resort forthwith
to certiorari, but to continue with the case in due course and, when an
unfavorable verdict is handed down, to take an appeal in the manner
authorized by law.”
On a number of occasions, however, Court had sanctioned a writ
of certiorari as an appropriate remedy to assail an interlocutory order in the
following circumstances: chanRoblesvirtualLawlib rary
(1) when the court issued the order without or in excess of jurisdiction or
with grave abuse of discretion;
(2) when the interlocutory order is patently erroneous and the remedy of
appeal would not afford adequate and expeditious relief;
(3) in the interest of a more enlightened and substantial justice;
(4) to promote public welfare and public policy; and
(5) when the cases have attracted nationwide attention, making it essential
to proceed with dispatch in the consideration thereof.43
As can be gleaned from the Court's discussion on the substantive issue of the
case, Navaja failed to prove that any of the said special circumstances
obtains in this case, let alone the grave abuse of discretion she imputed
against the MCTC. Hence, the CA did not err in affirming the RTC ruling that
the MCTC correctly denied her motion to quash.
Finally, the remaining factual issues raised by the parties need not be
discussed further, as they are properly resolved in due course of the
proceedings in the instant case before the MCTC and, when an unfavorable
verdict is handed down, to take an appeal in the manner authorized by law.
WHEREFORE, the instant petition is DENIED. The Court of Appeals Decision
dated August 28, 2007 and the Resolution dated May 7, 2008 in CA G.R. SP
No. 02353 are AFFIRMED.
SO ORDERED. cralawlawlibrary
G.R. No. 195956 March 11, 2015
ABS-CBN CORPORATION, Petitioner,
vs.
FELIPE GOZON, GILBERTO R. DUAVIT, JR., MARISSA L. FLORES, JESSICA A.
SORO, GRACE DELA PENA-REYES, JOHN OLIVER T. MANALASTAS, JOHN DOES
AND JANE DOES, Respondents.
DECISION
LEONEN, J.:
The main issue in this case is whether there is probable cause to charge respondents
with infringement under Republic Act No. 8293, otherwise known as the Intellectual
Property Code. The resolution of this issue requires clarification of the concept of
"copyrightable material" in relation to material that is rebroadcast live as a news story.
We are also asked to rule on whether criminal prosecution for infringement of
copyrightable material, such as live rebroadcast, can be negated by good faith.
ABS-CBN Corporation (ABS-CBN) filed the Petition for Review on Certiorari1 to assail the
November 9, 2010 Decision2 and the March 3, 2011 Resolution3 of the Court of Appeals.
The Court of Appeals reinstated the Department of Justice Resolution dated August 1,
2005 that ordered the withdrawal of the Information finding probable cause for
respondents’ violation of Sections 1774 and 2115 of the Intellectual Property
Code.6 Respondents are officers and employees of GMA Network, Inc. (GMA-7). They
are: Felipe Gozon (Gozon), GMA-7 President; Gilberto R. Duavit, Jr. (Duavit, Jr.),
Executive Vice-President; Marissa L. Flores (Flores), Vice-President for New and Public
Affairs; Jessica A. Soho (Soho), Director for News; Grace Dela Peña-Reyes (Dela Peña-
Reyes), Head of News and Public Affairs; John Oliver Manalastas (Manalastas),
Program Manager; and others.
The controversy arose from GMA-7’s news coverage on the homecoming of Filipino
overseas worker and hostage victim Angelo dela Cruz on July 22, 2004. As summarized
by the Court of Appeals:
Overseas Filipino worker Angelo dela Cruz was kidnapped by Iraqi militants and as a
condition for his release, a demand was made for the withdrawal of Filipino troops in
Iraq. After negotiations, he was released by his captors and was scheduled to return to
the country in the afternoon of 22 July 2004. Occasioned by said homecoming and the
public interest it generated, both . . . GMA Network, Inc. . . . and [petitioner] made their
respective broadcasts and coverage of the live event.7
ABS-CBN "conducted live audio-video coverage of and broadcasted the arrival of Angelo
dela Cruz at the Ninoy Aquino International Airport (NAIA) and the subsequent press
conference."8 ABS-CBN allowed Reuters Television Service (Reuters) to air the footages
it had taken earlier under a special embargo agreement. 9
ABS-CBN alleged that under the special embargo agreement, any of the footages it took
would be for the "use of Reuter’s international subscribers only, and shall be considered
and treated by Reuters under ‘embargo’ against use by other subscribers in the
Philippines. . . . [N]o other Philippine subscriber of Reuters would be allowed to use ABS-
CBN footage without the latter’s consent." 10
GMA-7, to which Gozon, Duavit, Jr., Flores, Soho, Dela Peña-Reyes, and Manalastas
are connected, "assigned and stationed news reporters and technical men at the NAIA
for its live broadcast and non-live news coverage of the arrival of dela Cruz."11 GMA-7
subscribes to both Reuters and Cable News Network (CNN). It received a live video feed
of the coverage of Angelo dela Cruz’s arrival from Reuters.12
GMA-7 immediately carried the live news feed in its program "Flash Report," together
with its live broadcast.13 Allegedly, GMA-7 did not receive any notice or was not aware
that Reuters was airing footages of ABS-CBN.14 GMA-7’s news control room staff saw
neither the "No Access Philippines" notice nor a notice that the video feed was under
embargo in favor of ABS-CBN.15
On August 13, 2004, ABS-CBN filed the Complaint for copyright infringement under
Sections 17716 and 21117 of the Intellectual Property Code.18
On December 3, 2004, Assistant City Prosecutor Dindo Venturanza issued the
Resolution19 finding probable cause to indict Dela Peña-Reyes and
Manalastas.20 Consequently, the Information21 for violation of the Intellectual Property
Code was filed on December 17, 2004. It reads:
That on or about the 22nd of July 2004, in Quezon City, Philippines, the above-named
accused, conspiring together, confederating with and mutually helping each other, being
the Head of News Operations and the Program Manager, respectively, for the News and
Public Affairs Department of GMA Network, Inc., did then and there, willfully, unlawfully
and feloniously use and broadcast the footage of the arrival of Angelo [d]ela Cruz at the
Ninoy Aquino International Airport of which ABS-CBN holds the exclusive ownership and
copyright by then and there using, airing, and broadcasting the said footage in its news
program "FLASH REPORT" without first obtaining the consent or authority of said
copyright owner, to their damage and prejudice.
Contrary to law.22
On January 4, 2005, respondents filed the Petition for Review before the Department of
Justice.23 In the Resolution (Gonzalez Resolution) dated August 1, 2005, Department of
Justice Secretary Raul M. Gonzalez (Secretary Gonzalez) ruled in favor of respondents
and held that good faith may be raised as a defense in the case.24 The dispositive portion
of the Resolution reads:
WHEREFORE, THE PETITION FOR REVIEW FILED BY GMA-7 in I.S. No. 04-10458 is
considered meritorious and is hereby GRANTED. This case is hereby Dismissed, the
resolution of the City Prosecutor of Quezon City is hereby reversed and the same is
ordered to withdraw the information if any and report action taken to this office within ten
(10) days.25 (Emphasis in the original)
Both parties moved for reconsideration of the Gonzalez Resolution. 26
Meanwhile, on January 19, 2005, the trial court granted the Motion to Suspend
Proceedings filed earlier by Dela Peña-Reyes and Manalastas.27 The trial court Order
reads:
Perusing the motion, the court finds that a petition for review was filed with the
Department of Justice on January 5, 2005 as confirmed by the public prosecutor. Under
Section 11 (c), Rule 116 of the Rules of Criminal Procedure, once a petition for review is
filed with the Department of Justice, a suspension of the criminal proceedings may be
allowed by the court.
Accordingly, to allow the Department of Justice the opportunity to act on said petition for
review, let the proceedings on this case be suspended for a period of sixty (60) days
counted from January 5, 2005, the date the petition was filed with the Department of
Justice. The arraignment of the accused on February 1, 2005 is accordingly cancelled.
Let the arraignment be rescheduled to March 8, 2005 at 8:30 a.m. The accused through
counsel are notified in open court.
SO ORDERED.28
On June 29, 2010, Department of Justice Acting Secretary Alberto C. Agra (Secretary
Agra) issued the Resolution (Agra Resolution) that reversed the Gonzalez Resolution
and found probable cause to charge Dela Peña-Reyes and Manalastas for violation of
the Intellectual Property Code.29 Secretary Agra also found probable cause to indict
Gozon, Duavit, Jr., Flores, and Soho for the same violation. 30 He ruled that:
[w]hile good faith may be a defense in copyright infringement, the same is a disputable
presumption that must be proven in a full-blown trial. Disputable presumptions may be
contradicted and overcome by other evidence. Thus, a full-blown trial is the proper venue
where facts, issues and laws are evaluated and considered. The very purpose of trial is
to allow a party to present evidence to overcome the disputable presumptions involved. 31
The dispositive portion of the Agra Resolution provides:
WHEREFORE, premises considered:
(a) The Motion for Reconsideration filed by appellees ABS-CBN Broadcasting
Corporation (ABS-CBN) of our Resolution promulgated on August 1, 2005
(Resolution No. 364, Series of 2005) and the Petition for Review filed by
complainant-appellant ABS-CBN in I.S. No. 04-10458 on April10, 2006, are
GRANTED and the City Prosecutor of Quezon City is hereby ordered to file the
necessary Information for violation of Section 177 and 211 of Republic Act No.
8293 against GMA-7. Felipe L. Gozon, Gilberto R. Duavit, Jr., Marissa L.Flores,
Jessica A. Soho, Grace Dela Pena-Reyes, John Oliver T. Manalastas[.]
....
SO ORDERED.32 (Emphasis in the original)
Respondents assailed the Agra Resolution through the Petition for Certiorari with prayer
for issuance of a temporary restraining order and/or Writ of Preliminary Injunction on
September 2, 2010 before the Court of Appeals. In the Resolution dated September 13,
2010, the Court of Appeals granted the temporary restraining order preventing the
Department of Justice from enforcing the Agra Resolution. 33
On November 9, 2010, the Court of Appeals rendered the Decision granting the Petition
and reversing and setting aside the Agra Resolution. 34 The Court of Appeals held that
Secretary Agra committed errors of jurisdiction in issuing the assailed Resolution.
Resolving the issue of copyright infringement, the Court of Appeals said:
Surely, private respondent has a copyright of its news coverage. Seemingly, for airing
said video feed, petitioner GMA is liable under the provisions of the Intellectual Property
Code, which was enacted purposely to protect copyright owners from infringement.
However, it is an admitted fact that petitioner GMA had only aired a five (5) second
footage of the disputed live video feed that it had received from Reuters and CNN as a
subscriber. Indeed, petitioners had no notice of the right of ownership of private
respondent over the same. Without notice of the "No Access Philippines" restriction of
the live video feed, petitioner cannot be faulted for airing a live video feed from Reuters
and CNN.
Verily, as aptly opined by Secretary Gonzalez in his earlier Resolution, the act of
petitioners in airing the five (5) second footage was undeniably attended by good faith
and it thus serves to exculpate them from criminal liability under the Code. While the
Intellectual Property Code is a special law, and thus generally categorized as malum
prohibitum, it bears to stress that the provisions of the Code itself do not ipso facto
penalize a person or entity for copyright infringement by the mere fact that one had used
a copyrighted work or material.
Certainly so, in the exercise of one’s moral and economic or copyrights, the very
provisions of Part IV of the Intellectual Property Code provide for the scope and
limitations on copyright protection under Section 184 and in fact permit fair use of
copyrighted work under Section 185. With the aforesaid statutory limitations on one’s
economic and copyrights and the allowable instances where the other persons can
legally use a copyrighted work, criminal culpability clearly attaches only when the
infringement had been knowingly and intentionally committed. 35 (Emphasis supplied)
The dispositive portion of the Decision reads:
WHEREFORE, the foregoing considered, the instant petition is hereby GRANTED and
the assailed Resolution dated 29 June 2010 REVERSED and SET ASIDE. Accordingly,
the earlier Resolution dated 1 August 2005, which ordered the withdrawal of the
Information filed, if any, against the petitioners for violation of Sections 177 and 211 of
the Intellectual Property Code, is hereby REINSTATED. No costs.
SO ORDERED.36 (Emphasis in the original)
ABS-CBN’s Motion for Reconsideration was denied.37 It then filed its Petition for Review
before this court assailing the Decision and Resolution of the Court of Appeals. 38
The issues for this court’s consideration are:
First, whether Secretary Agra committed errors of jurisdiction in the Resolution dated
June 29, 2010 and, therefore, whether a petition for certiorari was the proper remedy in
assailing that Resolution;
Second, whether news footage is copyrightable under the law;
Third, whether there was fair use of the broadcast material;
Fourth, whether lack of knowledge that a material is copyrighted is a defense against
copyright infringement;
Fifth, whether good faith is a defense in a criminal prosecution for violation of the
Intellectual Property Code; and
Lastly, whether the Court of Appeals was correct in overturning Secretary Agra’s finding
of probable cause.
I
The trial court granted respondents’ Motion to Suspend Proceedings and deferred
respondents Dela Peña-Reyes and Manalastas’ arraignment for 60 days in view of the
Petition for Review filed before the Department of Justice.
Rule 116, Section 11 (c) of the Rules of Criminal Procedure allows
the suspension of the accused’s arraignment in certain circumstances only:
SEC. 11. Suspension of arraignment.–Upon motion by the proper party, the arraignment
shall be suspended in the following cases:
(a) The accused appears to be suffering from an unsound mental condition which
effectively renders him unable to fully understand the charge against him and to
plead intelligently thereto. In such case, the court shall order his mental
examination and, if necessary, his confinement for such purpose;
(b) There exists a prejudicial question; and
(c) A petition for review of the resolution of the prosecutor is pending at either the
Department of Justice, or the Office of the President; provided, that the period of
suspension shall not exceed sixty (60) days counted from the filing of the petition
with the reviewing office. (12a) (Emphasis supplied)
In Samson v. Daway,39 this court acknowledged the applicability of Rule 116, Section (c)
in a criminal prosecution for infringement under the Intellectual Property Code. However,
this court emphasized the limits of the order of deferment under the Rule:
While the pendency of a petition for review is a ground for suspension of the
arraignment, the . . . provision limits the deferment of the arraignment to a period of 60
days reckoned from the filing of the petition with the reviewing office. It follows, therefore,
that after the expiration of said period, the trial court is bound to arraign the accused or to
deny the motion to defer arraignment.40
We clarify that the suspension of the arraignment should always be within the limits
allowed by law. In Crespo v. Judge Mogul,41 this court outlined the effects of filing an
information before the trial court, which includes initiating a criminal action and giving this
court "authority to hear and determine the case":42
The preliminary investigation conducted by the fiscal for the purpose of determining
whether a prima facie case exists warranting the prosecution of the accused is
terminated upon the filing of the information in the proper court. In turn, as above stated,
the filing of said information sets in motion the criminal action against the accused in
Court. Should the fiscal find it proper to conduct a reinvestigation of the case, at such
stage, the permission of the Court must be secured. After such reinvestigation the finding
and recommendations of the fiscal should be submitted to the Court for appropriate
action. While it is true that the fiscal has the quasi judicial discretion to determine
whether or not a criminal case should be filed in court or not, once the case had already
been brought to Court whatever disposition the fiscal may feel should be proper in the
case thereafter should be addressed for the consideration of the Court, the only
qualification is that the action of the Court must not impair the substantial rights of the
accused or the right of the People to due process of law.
Whether the accused had been arraigned or not and whether it was due to a
reinvestigation by the fiscal or a review by the Secretary of Justice whereby a motion to
dismiss was submitted to the Court, the Court in the exercise of its discretion may grant
the motion or deny it and require that the trial on the merits proceed for the proper
determination of the case.
However, one may ask, if the trial court refuses to grant the motion to dismiss filed by the
fiscal upon the directive of the Secretary of Justice will there not be a vacuum in the
prosecution? A state prosecutor to handle the case cannot possibly be designated by the
Secretary of Justice who does not believe that there is a basis for prosecution nor can
the fiscal be expected to handle the prosecution of the case thereby defying the superior
order of the Secretary of Justice. The answer is simple. The role of the fiscal or
prosecutor as We all know is to see that justice is done and not necessarily to secure the
conviction of the person accused before the Courts. Thus, in spite of his opinion to the
contrary, it is the duty of the fiscal to proceed with the presentation of evidence of the
prosecution to the Court to enable the Court to arrive at its own independent judgment as
to whether the accused should be convicted or acquitted. The fiscal should not shirk from
the responsibility of appearing for the People of the Philippines even under such
circumstances much less should he abandon the prosecution of the case leaving it to the
hands of a private prosecutor for then the entire proceedings will be null and void. The
least that the fiscal should do is to continue to appear for the prosecution although he
may turn over the presentation of the evidence to the private prosecutor but still under
his direction and control.
The rule therefore in this jurisdiction is that once a complaint or information is filed in
Court any disposition of the case as to its dismissal or the conviction or acquittal of the
accused rests in the sound discretion of the Court. Although the fiscal retains the
direction and control of the prosecution of criminal cases even while the case is already
in Court he cannot impose his opinion on the trial court. The Court is the best and sole
judge on what to do with the case before it. The determination of the case is within its
exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal
should be addressed to the Court who has the option to grant or deny the same. It does
not matter if this is done before or after the arraignment of the accused or that the motion
was filed after a reinvestigation or upon instructions of the Secretary of Justice who
reviewed the records of the investigation. 43 (Emphasis supplied, citations omitted)
The doctrine in Crespo was reiterated in Mayor Balindong v. Court of Appeals, 44 where
this court reminded the Department of Justice Secretary to refrain from entertaining
petitions for review when the case is already pending with this court:
[I]n order to avoid a situation where the opinion of the Secretary of Justice who reviewed
the action of the fiscal may be disregarded by the trial court, the Secretary of Justice
should, as far as practicable, refrain from entertaining a petition for review or appeal from
the action of the fiscal, when the complaint or information has already been filed in the
Court. The matter should be left entirely for the determination of the Court.45
The trial court should have proceeded with respondents Dela Peña-Reyes and
Manalastas’ arraignment after the 60-day period from the filing of the Petition for Review
before the Department of Justice on March 8, 2005. It was only on September 13, 2010
that the temporary restraining order was issued by the Court of Appeals. The trial court
erred when it did not act on the criminal case during the interim period. It had full control
and direction of the case. As Judge Mogul reasoned in denying the motion to dismiss in
Crespo, failure to proceed with the arraignment "disregards the requirements of due
process [and] erodes the Court’s independence and integrity."46
II
According to ABS-CBN, the Court of Appeals erred in finding that: a motion for
reconsideration was not necessary before a petition for certiorari could be filed; the
Department of Justice Secretary committed errors of jurisdiction since the Agra
Resolution was issued within its authority and in accordance with settled laws and
jurisprudence; and respondents were not liable for copyright infringement.
In its assailed Decision, the Court of Appeals found that respondents committed a
procedural error when they failed to file a motion for reconsideration before filing the
Petition for Certiorari. However, the Court of Appeals held that a motion for
reconsideration was unnecessary since the Agra Resolution was a patent nullity and it
would have been useless under the circumstances: Given that a reading of the assailed
Resolution and the instant records readily reveals errors of jurisdiction on the part of
respondent Secretary, direct judicial recourse is warranted under the circumstances.
Aside from the fact that said Resolution is a patent nullity having been issued in grave
abuse of discretion amounting to lack or excess of jurisdiction, the filing of a motion for
reconsideration is evidently useless on account of the fact that the issues and arguments
before this Court have already been duly raised and accordingly delved into by
respondent Secretary in his disposition of the petition a quo.47 (Emphasis in the original)
In Elma v. Jacobi,48 this court ruled that a petition for certiorari under Rule 65 of the Rules
of Court is proper when assailing adverse resolutions of the Department of Justice
stemming from the determination of probable cause. 49 However, grave abuse of
discretion must be alleged.50
In Sanrio Company Limited v. Lim,51 this court stressed the prosecutor’s role in
determining probable cause. Judicial review will only lie when it is shown that the
prosecutor acted with grave abuse of discretion amounting to lack or excess of
jurisdiction:
A prosecutor alone determines the sufficiency of evidence that will establish probable
cause justifying the filing of a criminal information against the respondent. By way of
exception, however, judicial review is allowed where respondent has clearly established
that the prosecutor committed grave abuse of discretion. Otherwise stated, such review
is appropriate only when the prosecutor has exercised his discretion in an arbitrary,
capricious, whimsical or despotic manner by reason of passion or personal hostility,
patent and gross enough to amount to an evasion of a positive duty or virtual refusal to
perform a duty enjoined by law.52 (Citations omitted)
Grave abuse of discretion refers to:
such capricious and whimsical exercise of judgment as is equivalent to lack of
jurisdiction. The abuse of discretion must be grave as where the power is exercised in an
arbitrary or despotic manner by reason of passion or personal hostility and must be so
patent and gross as to amount to an evasion of positive duty or to a virtual refusal to
perform the duty enjoined by or to act at all in contemplation of law. 53
Resorting to certiorari requires that there be there be "no appeal, or any plain, speedy,
and adequate remedy in the ordinary course of law[,]" 54 such as a motion for
reconsideration. Generally, "a motion for reconsideration is a condition sine qua non
before a petition for certiorari may lie, its purpose being to grant an opportunity for the
[tribunal or officer] to correct any error attributed to it by a re-examination of the legal and
factual circumstances of the case."55 However, exceptions to the rule exist:
(a) where the order is a patent nullity, as where the Court a quo had no jurisdiction; (b)
where the questions raised in the certiorari proceeding have been duly raised and
passed upon by the lower court, or are the same as those raised and passed upon in the
lower court; (c) where there is an urgent necessity for the resolution of the question and
any further delay would prejudice the interests of the Government or of the petitioner or
the subject matter of the action is perishable; (d) where, under the circumstances, a
motion for reconsideration would be useless; (e) where petitioner was deprived of due
process and there is extreme urgency for relief; (f) where, in a criminal case, relief from
an order of arrest is urgent and the granting of such relief by the trial Court is improbable;
(g) where the proceedings in the lower court are a nullity for lack of due process; (h)
where the proceedings was ex parte or in which the petitioner had no opportunity to
object; and (i) where the issue raised is one purely of law or where public interest is
involved.56 (Emphasis in the original, citations omitted)
As argued by respondents, "[a] second motion for reconsideration would have been
useless and futile since the D[epartment] [of] J[ustice] had already passed upon the
same issues twice."57 Equally pressing under the circumstances was the need to resolve
the matter, as the Information’s filing would lead to respondents’ imminent arrest. 58
Moreover, Department of Justice Department Circular No. 70 dated July 3, 2000, or the
2000 NPS Rules on Appeal, provides that no second motion for reconsideration of the
Department of Justice Secretary’s resolution shall be entertained:
SECTION 13. Motion for reconsideration. The aggrieved party may file a motion for
reconsideration within a non-extendible period of ten (10) days from receipt of the
resolution on appeal, furnishing the adverse party and the Prosecution Office concerned
with copies thereof and submitting proof of such service. No second or further motion for
reconsideration shall be entertained.
The Agra Resolution was the result of respondents’ Motion for Reconsideration assailing
the Gonzalez Resolution. To file a motion for reconsideration of the Agra Resolution
would be superfluous. Respondents were, therefore, correct in filing the Petition for
Certiorari of the Agra Resolution before the Court of Appeals.
III
The Court of Appeals ruled that Secretary Agra committed errors of jurisdiction, which
then required the grant of the writ of certiorari:
So viewed, by ordering the filing of information without proof that probable cause exists
to charge petitioners with a crime, respondent Secretary clearly committed an error of
jurisdiction thus warranting the issuance of the writ of certiorari. Surely, probable cause
cannot be had when the very provisions of the statute exculpates criminal liability in
cases classified as fair use of copyrighted materials. The fact that they admittedly used
the Reuters live video feed is not, as a matter of course, tantamount to copyright
infringement that would justify the filing of an information against the petitioners. 59
Error of jurisdiction must be distinguished from error of judgment:
A line must be drawn between errors of judgment and errors of jurisdiction. An error of
judgment is one which the court may commit in the exercise of its jurisdiction. An error of
jurisdiction renders an order or judgment void or voidable. Errors of jurisdiction are
reviewable on certiorari; errors of judgment, only by appeal. 60
In People v. Hon. Sandiganbayan61:
An error of judgment is one which the court may commit in the exercise of its jurisdiction.
An error of jurisdictionis one where the act complained of was issued by the court without
or in excess of jurisdiction, or with grave abuse of discretion, which is tantamount to lack
or in excess of jurisdiction and which error is correctible only by the extraordinary writ of
certiorari. Certiorari will not be issued to cure errors of the trial court in its appreciation of
the evidence of the parties, or its conclusions anchored on the said findings and its
conclusions of law.62 (Emphasis supplied)
This court has adopted a deferential attitude towards review of the executive’s finding of
probable cause.63 This is based "not only upon the respect for the investigatory and
[prosecutorial] powers granted by the Constitution to the executive department but upon
practicality as well."64 Review of the Department of Justice Secretary’s decision or
resolution will be allowed only when grave abuse of discretion is alleged:
The full discretionary authority to determine probable cause in a preliminary investigation
to ascertain sufficient ground for the filing of information rests with the executive branch.
Hence, judicial review of the resolution of the Secretary of Justice is limited to a
determination whether there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction. Courts cannot substitute the executive branch’s judgment.
....
It is only where the decision of the Justice Secretary is tainted with grave abuse of
discretion amounting to lack or excess of jurisdiction that the Court of Appeals may take
cognizance of the case in a petition for certiorari under Rule 65 of the Revised Rules of
Civil Procedure. The Court of Appeals decision may then be appealed to this Court by
way of a petition for review on certiorari.65 (Emphasis supplied, citations omitted)
In this case, it must be shown that Secretary Agra exceeded his authority when he
reversed the findings of Secretary Gonzalez. This court must determine whether there is
probable cause to file an information for copyright infringement under the Intellectual
Property Code.
IV
Probable cause pertains to "such facts as are sufficient to engender a well-founded belief
that a crime has been committed and that respondent is probably guilty
thereof."66 Preliminary investigation is the inquiry or proceeding to determine whether
there is probable cause.67
In Webb v. De Leon,68 this court ruled that determination of probable cause during
preliminary investigation does not require trial-like evaluation of evidence since existence
of probable cause does not equate to guilt:
It ought to be emphasized that in determining probable cause, the average man weighs
facts and circumstances without resorting to the calibrations of our technical rules of
evidence of which his knowledge is nil. Rather, he relies on the calculus of common
sense of which all reasonable men have an abundance.
....
. . . A finding of probable cause merely binds over the suspect to stand trial. It is not a
pronouncement of guilt.69
In Reyes v. Pearlbank Securities, Inc., 70 finding probable cause is not equivalent to
finding with moral certainty that the accused committed the crime:
A finding of probable cause needs only to rest on evidence showing that more likely than
not a crime has been committed by the suspects. It need not be based on clear and
convincing evidence of guilt, not on evidence establishing guilt beyond reasonable doubt,
and definitely not on evidence establishing absolute certainty of guilt. In determining
probable cause, the average man weighs facts and circumstances without resorting to
the calibrations of the rules of evidence of which he has no technical knowledge. He
relies on common sense.71
During preliminary investigation, a public prosecutor does not adjudicate on the parties’
rights, obligations, or liabilities.72
In the recent case of Estrada v. Office of the Ombudsman, et al.,73 we reiterated Webb on
the determination of probable cause during preliminary investigation and traced the
history of probable cause as borrowed from American jurisprudence:
The purpose in determining probable cause is to make sure that the courts are not
clogged with weak cases that will only be dismissed, as well as to spare a person from
the travails of a needless prosecution.
....
. . . In the United States, from where we borrowed the concept of probable cause, the
prevailing definition of probable cause is this:
In dealing with probable cause, however, as the very name implies, we deal with
probabilities. These are not technical; they are the factual and practical considerations of
everyday life on which reasonable and prudent men, not legal technicians, act. The
standard of proof is accordingly correlative to what must be proved.
"The substance of all the definitions" of probable cause "is a reasonable ground for belief
of guilt." McCarthy v. De Armit, 99 Pa. St. 63, 69, quoted with approval in the Carroll
opinion. 267 U. S. at 161. And this "means less than evidence which would justify
condemnation" or conviction, as Marshall, C. J., said for the Court more than a century
ago in Locke v. United States, 7 Cranch 339, 348. Since Marshall’s time, at any rate, it
has come to mean more than bare suspicion: Probable cause exists where "the facts
and circumstances within their [the officers’] knowledge and of which they had
reasonably trustworthy information [are] sufficient in themselves to warrant a man of
reasonable caution in the belief that" an offense has been or is being committed. Carroll
v. United States, 267 U. S. 132, 162.
These long-prevailing standards seek to safeguard citizens from rash and unreasonable
interferences with privacy and from unfounded charges of crime. They also seek to give
fair leeway for enforcing the law in the community’s protection. Because many situations
which confront officers in the course of executing their duties are more or less
ambiguous, room must be allowed for some mistakes on their part. But the mistakes
must be those of reasonable men, acting on facts leading sensibly to their conclusions of
probability. The rule of probable cause is a practical, non technical conception affording
the best compromise that has been found for accommodating these often opposing
interests. Requiring more would unduly hamper law enforcement. To allow less would be
to leave law-abiding citizens at the mercy of the officers’ whim or caprice.
In the Philippines, there are four instances in the Revised Rules of Criminal Procedure
where probable cause is needed to be established:
(1) In Sections 1 and 3 of Rule 112: By the investigating officer, to determine
whether there is sufficient ground to engender a well-founded belief that a crime
has been committed and the respondent is probably guilty thereof, and should be
held for trial. A preliminary investigation is required before the filing of a
complaint or information for an offense where the penalty prescribed by law is at
least four years, two months and one day without regard to the fine;
(2) In Sections 6 and 9 of Rule 112: By the judge, to determine whether a warrant
of arrest or a commitment order, if the accused has already been arrested, shall
be issued and that there is a necessity of placing the respondent under
immediate custody in order not to frustrate the ends of justice;
(3) In Section 5(b) of Rule 113:By a peace officer or a private person making a
warrantless arrest when an offense has just been committed, and he has
probable cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and
(4) In Section 4 of Rule 126: By the judge, to determine whether a search warrant
shall be issued, and only upon probable cause in connection with one specific
offense to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the things to be seized which
may be anywhere in the Philippines.
In all these instances, the evidence necessary to establish probable cause is based only
on the likelihood, or probability, of guilt. 74
Estrada also highlighted that a "[p]reliminary investigation is not part of the criminal
action. It is merely preparatory and may even be disposed of in certain situations." 75
To determine whether there is probable cause that respondents committed copyright
infringement, a review of the elements of the crime, including the existing facts, is
required.
V
ABS-CBN claims that news footage is subject to copyright and prohibited use of
copyrighted material is punishable under the Intellectual Property Code. It argues that
the new footage is not a "newsworthy event" but "merely an account of the arrival of
Angelo dela Cruz in the Philippines — the latter being the newsworthy event":76
To be clear, it is the event itself or the arrival of Angelo dela Cruz which is not
copyrightable because that is the newsworthy event. However, any footage created from
the event itself, in this case the arrival of Angelo dela Cruz, are intellectual creations
which are copyrightable. Thus, the footage created by ABS-CBN during the arrival of
Angelo dela Cruz, which includes the statements of Dindo Amparo, are copyrightable
and protected by the laws on copyright. 77
On the other hand, respondents argue that ABS-CBN’s news footage of Angelo dela
Cruz’s arrival is not copyrightable or subject to protection:
Certainly, the arrival of Angelo [d]ela Cruz, which aroused public attention and the
consciousness of the Filipino people with regard to their countrymen, OFWs working in
foreign countries and how the Philippine government responds to the issues concerning
them, is "news". There is no ingenuity or inventiveness added in the said news footage.
The video footage of this "news" is not copyrightable by any legal standard as facts of
everyday life depicted in the news and items of press information is part of the public
domain.78 (Emphasis in the original)
The news footage is copyrightable.
The Intellectual Property Code is clear about the rights afforded to authors of various
kinds of work. Under the Code, "works are protected by the sole fact of their creation,
irrespective of their mode or form of expression, as well as of their content, quality and
purpose."79 These include "[a]udiovisual works and cinematographic works and works
produced by a process analogous to cinematography or any process for making
audiovisual recordings."80
Contrary to the old copyright law,81 the Intellectual Property Code does not require
registration of the work to fully recover in an infringement suit. Nevertheless, both
copyright laws provide that copyright for a work is acquired by an intellectual creator from
the moment of creation.82
It is true that under Section 175 of the Intellectual Property Code, "news of the day and
other miscellaneous facts having the character of mere items of press information" are
considered unprotected subject matter.83 However, the Code does not state that
expression of the news of the day, particularly when it underwent a creative process, is
not entitled to protection.
An idea or event must be distinguished from the expression of that idea or event. An idea
has been likened to a ghost in that it "must be spoken to a little before it will explain
itself."84 It is a concept that has eluded exact legal definition. 85 To get a better grasp of the
idea/expression dichotomy, the etymology of the term "idea" is traced:
The word "idea" is derived from a Greek term, meaning "a form, the look or appearance
of a thing as opposed to its reality, from idein, to see." In the Timaeus, Plato saw ideas
as eternal paradigms, independent objects to which the divine demiurge looks as
patterns in forming the world. This was later modified to the religious conception of ideas
as the thoughts of God. "It is not a very long step to extend the term ‘idea’ to cover
patterns, blueprints, or plans in anyone's mind, not only in God’s." The word entered the
French and English vernacular in the 1600s and possessed two meanings. The first was
the Platonic meaning of a perfect exemplar or paradigm. The second, which probably
has its origin with Descartes, is of a mental concept or image or, more broadly, any
object of the mind when it is active. Objects of thought may exist independently. The sun
exists (probably) before and after you think of it. But it is also possible to think of things
that have never existed, such as a unicorn or Pegasus. John Locke defined ideas very
comprehensively, to include: all objects of the mind. Language was a way of translating
the invisible, hidden ideas that make up a person’s thoughts into the external, perceptible
world of articulate sounds and visible written symbols that others can
understand.86 (Citations omitted) There is no one legal definition of "idea" in this
jurisdiction. The term "idea" is mentioned only once in the Intellectual Property Code. 87 In
Joaquin, Jr. v. Drilon,88 a television format (i.e., a dating show format) is not copyrightable
under Section 2 of Presidential Decree No. 49;89 it is a mere concept:
P.D. No. 49, §2, in enumerating what are subject to copyright, refers to finished works
and not to concepts. The copyright does not extend to an idea, procedure, process,
system, method of operation, concept, principle, or discovery, regardless of the form in
which it is described, explained, illustrated, or embodied in such work. Thus, the new
INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES provides:
SEC. 175. Unprotected Subject Matter.—Notwithstanding the provisions of Sections 172
and 173, no protection shall extend, under this law, to any idea, procedure, system,
method or operation, concept, principle, discovery or mere data as such, even if they are
expressed, explained, illustrated or embodied in a work; news of the day and other
miscellaneous facts having the character of mere items of press information; or any
official text of a legislative, administrative or legal nature, as well as any official
translation thereof.
What then is the subject matter of petitioners’ copyright? This Court is of the opinion that
petitioner BJPI’s copyright covers audio-visual recordings of each episode of Rhoda and
Me, as falling within the class of works mentioned in P.D. 49, §2(M),to wit:
Cinematographic works and works produced by a process analogous to cinematography
or any process for making audio-visual recordings;
The copyright does not extend to the general concept or format of its dating game show.
Accordingly, by the very nature of the subject of petitioner BJPI’s copyright, the
investigating prosecutor should have the opportunity to compare the videotapes of the
two shows.
Mere description by words of the general format of the two dating game shows is
insufficient; the presentation of the master videotape in evidence was indispensable to
the determination of the existence of probable cause. As aptly observed by respondent
Secretary of Justice:
A television show includes more than mere words can describe because it involves a
whole spectrum of visuals and effects, video and audio, such that no similarity or
dissimilarity may be found by merely describing the general copyright/format of both
dating game shows.90 (Emphasis supplied, citations omitted)
Ideas can be either abstract or concrete.91 It is the concrete ideas that are generally
referred to as expression:
The words "abstract" and "concrete" arise in many cases dealing with the
idea/expression distinction. The Nichols court, for example, found that the defendant’s
film did not infringe the plaintiff’s play because it was "too generalized an abstraction
from what plaintiff wrote . . . only a part of her ideas." In Eichel v. Marcin, the court said
that authors may exploit facts, experiences, field of thought, and general ideas found in
another’s work, "provided they do not substantially copy a concrete form, in which the
circumstances and ideas have been developed, arranged, and put into shape." Judge
Hand, in National Comics Publications, Inc. v. Fawcett Publications, Inc. said that "no
one infringes, unless he descends so far into what is concrete as to invade. . .
‘expression.’"
These cases seem to be distinguishing "abstract" ideas from "concrete" tangible
embodiments of these abstractions that may be termed expression. However, if the
concrete form of a work means more than the literal expression contained within it, it is
difficult to determine what is meant by "concrete." Webster's New Twentieth Century
Dictionary of the English Language provides several meanings for the word concrete.
These include: "having a material, perceptible existence; of, belonging to, or
characterized by things or events that can be perceived by the senses; real; actual;" and
"referring to a particular; specific, not general or abstract."92
In Pearl & Dean (Phil.), Incorporated v. Shoemart, Incorporated,93 this court, citing the
American case of Baker v. Selden, distinguished copyright from patents and illustrated
how an idea or concept is different from the expression of that idea:
In the oft-cited case of Baker vs. Selden, the United States Supreme Court held that only
the expression of an idea is protected by copyright, not the idea itself. In that case, the
plaintiff held the copyright of a book which expounded on a new accounting system he
had developed. The publication illustrated blank forms of ledgers utilized in such a
system. The defendant reproduced forms similar to those illustrated in the plaintiff’s
copyrighted book. The US Supreme Court ruled that:
"There is no doubt that a work on the subject of book-keeping, though only explanatory
of well known systems, may be the subject of a copyright; but, then, it is claimed only as
a book. x x x But there is a clear distinction between the books, as such, and the art,
which it is, intended to illustrate. The mere statement of the proposition is so evident that
it requires hardly any argument to support it. The same distinction may be predicated of
every other art as well as that of bookkeeping.
A treatise on the composition and use of medicines, be they old or new; on the
construction and use of ploughs or watches or churns; or on the mixture and application
of colors for painting or dyeing; or on the mode of drawing lines to produce the effect of
perspective, would be the subject of copyright; but no one would contend that the
copyright of the treatise would give the exclusive right to the art or manufacture
described therein. The copyright of the book, if not pirated from other works, would be
valid without regard to the novelty or want of novelty of its subject matter. The novelty of
the art or thing described or explained has nothing to do with the validity of the copyright.
To give to the author of the book an exclusive property in the art described therein, when
no examination of its novelty has ever been officially made, would be a surprise and a
fraud upon the public. That is the province of letters patent, not of copyright. The claim to
an invention of discovery of an art or manufacture must be subjected to the examination
of the Patent Office before an exclusive right therein can be obtained; and a patent from
the government can only secure it.
The difference between the two things, letters patent and copyright, may be illustrated by
reference to the subjects just enumerated. Take the case of medicines. Certain mixtures
are found to be of great value in the healing art. If the discoverer writes and publishes a
book on the subject (as regular physicians generally do), he gains no exclusive right to
the manufacture and sale of the medicine; he gives that to the public. If he desires to
acquire such exclusive right, he must obtain a patent for the mixture as a new art,
manufacture or composition of matter. He may copyright his book, if he pleases; but that
only secures to him the exclusive right of printing and publishing his book. So of all other
inventions or discoveries.
The copyright of a book on perspective, no matter how many drawings and illustrations it
may contain, gives no exclusive right to the modes of drawing described, though they
may never have been known or used before. By publishing the book without getting a
patent for the art, the latter is given to the public.
....
Now, whilst no one has a right to print or publish his book, or any material part thereof,
as a book intended to convey instruction in the art, any person may practice and use the
art itself which he has described and illustrated therein. The use of the art is a totally
different thing from a publication of the book explaining it. The copyright of a book on
bookkeeping cannot secure the exclusive right to make, sell and use account books
prepared upon the plan set forth in such book. Whether the art might or might not have
been patented, is a question, which is not before us. It was not patented, and is open
and free to the use of the public. And, of course, in using the art, the ruled lines and
headings of accounts must necessarily be used as incident to it.
The plausibility of the claim put forward by the complainant in this case arises from a
confusion of ideas produced by the peculiar nature of the art described in the books,
which have been made the subject of copyright. In describing the art, the illustrations and
diagrams employed happened to correspond more closely than usual with the actual
work performed by the operator who uses the art. x x x The description of the art in a
book, though entitled to the benefit of copyright, lays no foundation for an exclusive claim
to the art itself. The object of the one is explanation; the object of the other is use. The
former may be secured by copyright. The latter can only be secured, if it can be secured
at all, by letters patent."94 (Emphasis supplied)
News or the event itself is not copyrightable. However, an event can be captured and
presented in a specific medium. As recognized by this court in Joaquin, television
"involves a whole spectrum of visuals and effects, video and audio."95 News coverage in
television involves framing shots, using images, graphics, and sound effects. 96 It involves
creative process and originality. Television news footage is an expression of the news.
In the United States, a line of cases dwelt on the possibility of television newscasts to be
copyrighted.97 Most of these cases focused on private individuals’ sale or resale of tapes
of news broadcasts. Conflicting decisions were rendered by its courts. Noteworthy,
however, is the District Court’s pronouncement in Pacific & Southern Co. v.
Duncan,98 which involves a News Monitoring Service’s videotaping and sale of WXIA-
TV’s news broadcasts:
It is axiomatic that copyright protection does not extend to news "events" or the facts or
ideas which are the subject of news reports. Miller v. Universal City Studios, Inc., 650
F.2d 1365, 1368 (5th Cir. 1981); Wainwright Securities, Inc. v. Wall Street Transcript
Corp., 558 F.2d 91, 95 (2d Cir. 1977), cert. denied, 434 U.S. 1014, 98 S.Ct. 730, 54
L.Ed.2d 759 (1978). But it is equally well-settled that copyright protection does extend to
the reports themselves, as distinguished from the substance of the information contained
in the reports. Wainwright, 558 F.2d at 95; International News Service v. Associated
Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918); see Chicago Record-Herald Co.
v. Tribune Assn., 275 F. 797 (7th Cir.1921); 1 Nimmer on Copyright § 2.11[B] (1983).
Copyright protects the manner of expression of news reports, "the particular form or
collocation of words in which the writer has communicated it." International News
Service, 248 U.S. at 234, 39 S.Ct. at 70. Such protection extends to electronic news
reports as well as written reports. See17 U.S.C. § 102(a) (5), (6), and (7); see also Iowa
State University Research Foundations, Inc. v. American Broadcasting Cos., 621 F.2d
57, 61 (2d Cir. 1980).99 (Emphasis supplied)
The idea/expression dichotomy has long been subject to debate in the field of copyright
law. Abolishing the dichotomy has been proposed, in that non-protectibility of ideas
should be re-examined, if not stricken, from decisions and the law:
If the underlying purpose of the copyright law is the dual one expressed by Lord
Mansfield, the only excuse for the continuance of the idea-expression test as a judicial
standard for determining protectibility would be that it was or could be a truly useful
method of determining the proper balance between the creator’s right to profit from his
work and the public's right that the "progress of the arts not be retarded."
. . . [A]s used in the present-day context[,] the dichotomy has little or no relationship to
the policy which it should effectuate. Indeed, all too often the sweeping language of the
courts regarding the non-protectibility of ideas gives the impression that this is of itself a
policy of the law, instead of merely a clumsy and outdated tool to achieve a much more
basic end.100
The idea/expression dichotomy is a complex matter if one is trying to determine whether
a certain material is a copy of another.101 This dichotomy would be more relevant in
determining, for instance, whether a stage play was an infringement of an author’s book
involving the same characters and setting. In this case, however, respondents admitted
that the material under review — which is the subject of the controversy — is an exact
copy of the original. Respondents did not subject ABS-CBN’s footage to any editing of
their own. The news footage did not undergo any transformation where there is a need to
track elements of the original.
Having established the protectible nature of news footage, we now discuss the
concomitant rights accorded to authors. The authors of a work are granted several rights
in relation to it, including copyright or economic rights:
SECTION 177. Copyright or Economic Rights. — Subject to the provisions of Chapter
VIII, copyright or economic rights shall consist of the exclusive right to carry out,
authorize or prevent the following acts:
177.1. Reproduction of the work or substantial portion of the work;
177.2. Dramatization, translation, adaptation, abridgment, arrangement or other
transformation of the work;
177.3. The first public distribution of the original and each copy of the work by
sale or other forms of transfer of ownership;
177.4. Rental of the original or a copy of an audiovisual or cinematographic work,
a work embodied in a sound recording, a computer program, a compilation of
data and other materials or a musical work in graphic form, irrespective of the
ownership of the original or the copy which is the subject of the rental; (n)
177.5. Public display of the original or a copy of the work;
177.6. Public performance of the work; and
177.7. Other communication to the public of the work.(Sec. 5, P. D. No. 49a)
(Emphasis supplied)
Under Section 211 of the Intellectual Property Code, broadcasting organizations are
granted a more specific set of rights called related or neighboring rights:
SECTION 211. Scope of Right. — Subject to the provisions of Section 212, broadcasting
organizations shall enjoy the exclusive right to carry out, authorize or prevent any of the
following acts:
211.1. The rebroadcasting of their broadcasts;
211.2. The recording in any manner, including the making of films or the use of
video tape, of their broadcasts for the purpose of communication to the public of
television broadcasts of the same; and
 211.3. The use of such records for fresh transmissions or for fresh recording.
(Sec. 52, P.D. No. 49) (Emphasis supplied)
Section 212 of the Code provides:
CHAPTER XV
LIMITATIONS ON PROTECTION
Section 212. Limitations on Rights. - Sections 203, 208 and 209 shall not apply where
the acts referred to in those Sections are related to:
212.1. The use by a natural person exclusively for his own personal purposes;
212.2. Using short excerpts for reporting current events;
212.3. Use solely for the purpose of teaching or for scientific research; and
212.4. Fair use of the broadcast subject to the conditions under Section 185.
(Sec. 44, P.D. No. 49a)
The Code defines what broadcasting is and who broadcasting organizations include:
202.7. "Broadcasting" means the transmission by wireless means for the public
reception of sounds or of images or of representations thereof; such transmission
by satellite is also "broadcasting" where the means for decrypting are provided to
the public by the broadcasting organization or with its consent;
202.8. "Broadcasting organization" shall include a natural person or a juridical
entity duly authorized to engage in broadcasting[.]
Developments in technology, including the process of preserving once ephemeral works
and disseminating them, resulted in the need to provide a new kind of protection as
distinguished from copyright.102 The designation "neighboring rights" was abbreviated
from the phrase "rights neighboring to copyright."103 Neighboring or related rights are of
equal importance with copyright as established in the different conventions covering both
kinds of rights.104
Several treaties deal with neighboring or related rights of copyright. 105 The most
prominent of these is the "International Convention for the Protection of Performers,
Producers of Phonograms and Broadcasting Organizations" (Rome Convention). 106
The Rome Convention protects the rights of broadcasting organizations in relation to
their broadcasts. Article XIII of the Rome Convention enumerates the minimum rights
accorded to broadcasting organizations:
Article 13
Minimum Rights for Broadcasting Organizations
Broadcasting organisations shall enjoy the right to authorize or prohibit:
(a) the rebroadcasting of their broadcasts;
(b) the fixation of their broadcasts;
(c) the reproduction:
(i) of fixations, made without their consent, of their broadcasts;
(ii) of fixations, made in accordance with the provisions of Article 15, of
their broadcasts, if the reproduction is made for purposes different from
those referred to in those provisions;
(d) the communication to the public of their television broadcasts if such
communication is made in places accessible to the public against payment of an
entrance fee; it shall be a matter for the domestic law of the State where
protection of this right is claimed to determine the conditions under which it may
be exercised.
With regard to the neighboring rights of a broadcasting organization in this jurisdiction,
this court has discussed the difference between broadcasting and rebroadcasting:
Section 202.7 of the IP Code defines broadcasting as "the transmission by wireless
means for the public reception of sounds or of images or of representations thereof; such
transmission by satellite is also ‘broadcasting’ where the means for decrypting are
provided to the public by the broadcasting organization or with its consent."
On the other hand, rebroadcasting as defined in Article 3(g) of the International
Convention for the Protection of Performers, Producers of Phonograms and
Broadcasting Organizations, otherwise known as the 1961 Rome Convention, of which
the Republic of the Philippines is a signatory, is "the simultaneous broadcasting by one
broadcasting organization of the broadcast of another broadcasting organization."
 ....
Under the Rome Convention, rebroadcasting is "the simultaneous broadcasting by one
broadcasting organization of the broadcast of another broadcasting organization." The
Working Paper prepared by the Secretariat of the Standing Committee on Copyright and
Related Rights defines broadcasting organizations as "entities that take the financial and
editorial responsibility for the selection and arrangement of, and investment in, the
transmitted content."107 (Emphasis in the original, citations omitted)
Broadcasting organizations are entitled to several rights and to the protection of these
rights under the Intellectual Property Code. Respondents’ argument that the subject
news footage is not copyrightable is erroneous. The Court of Appeals, in its assailed
Decision, correctly recognized the existence of ABS-CBN’s copyright over the news
footage:
Surely, private respondent has a copyright of its news coverage. Seemingly, for airing
said video feed, petitioner GMA is liable under the provisions of the Intellectual Property
Code, which was enacted purposely to protect copyright owners from infringement. 108
News as expressed in a video footage is entitled to copyright protection. Broadcasting
organizations have not only copyright on but also neighboring rights over their
broadcasts. Copyrightability of a work is different from fair use of a work for purposes of
news reporting.
VI
ABS-CBN assails the Court of Appeals’ ruling that the footage shown by GMA-7 falls
under the scope of Section 212.2 and 212.4 of the Intellectual Property Code:
The evidence on record, as well as the discussions above, show that the footage used
by[respondents] could hardlybe characterized as a short excerpt, as it was aired over
one and a half minutes.
Furthermore, the footage used does not fall under the contemplation of Section 212.2 of
the Intellectual Property Code. A plain reading of the provision would reveal that
copyrighted material referred to in Section 212 are short portions of an artist’s
performance under Section 203, or a producer’s sound recordings under Sections 208
and 209. Section 212 does not refer to actual use of video footage of another as its own.
The Angelo dela Cruz footage does not fall under the rule on Section 212.4 of the
Intellectual Property Code on fair use of the broadcast.
....
In determining fair use, several factors are considered, including the nature of the
copyrighted work, and the amount and substantiality of the person used in relation to the
copyrighted work as a whole.
In the business of television news reporting, the nature of the copyrighted work or the
video footages, are such that, footage created, must be a novelty to be a good report.
Thus, when the . . . Angelo dela Cruz footage was used by [respondents], the novelty of
the footage was clearly affected.
Moreover, given that a substantial portion of the Angelo dela Cruz footage was utilized
by GMA-7 for its own, its use can hardly be classified as fair use.
Hence, [respondents] could not be considered as having used the Angelo dela Cruz
[footage] following the provisions on fair use.
It is also worthy to note that the Honorable Court of Appeals seem to contradict itself
when it relied on the provisions of fair use in its assailed rulings considering that it found
that the Angelo dela Cruz footage is not copyrightable, given that the fair use
presupposes an existing copyright. Thus, it is apparent that the findings of the Honorable
Court of Appeals are erroneous and based on wrong assumptions. 109 (Underscoring in
the original)
On the other hand, respondents counter that GMA-7’s use of ABS-CBN’s news footage
falls under fair use as defined in the Intellectual Property Code. Respondents, citing the
Court of Appeals Decision, argue that a strong statutory defense negates any finding of
probable cause under the same statute. 110 The Intellectual Property Code provides that
fair use negates infringement.
Respondents point out that upon seeing ABS-CBN’s reporter Dindo Amparo on the
footage, GMA-7 immediately shut off the broadcast. Only five (5) seconds passed before
the footage was cut. They argue that this shows that GMA-7 had no prior knowledge of
ABS-CBN’s ownership of the footage or was notified of it. They claim that the Angelo
dela Cruz footage is considered a short excerpt of an event’s "news" footage and is
covered by fair use.111
Copyright protection is not absolute.112 The Intellectual Property Code provides the
limitations on copyright:
CHAPTER VIII
LIMITATIONS ON COPYRIGHT
Section 184. Limitations on Copyright. - 184.1. Notwithstanding the provisions of Chapter
V, the following acts shall not constitute infringement of copyright:
 ....
184.2. The provisions of this section shall be interpreted in such a way as to allow the
work to be used in a manner which does not conflict with the normal exploitation of the
work and does not unreasonably prejudice the right holder's legitimate interests.
....
CHAPTER XV
LIMITATIONS ON PROTECTION
Section 212. Limitations on Rights. - Sections 203, 208 and 209 shall not apply where
the acts referred to in those Sections are related to:
....
212.2. Using short excerpts for reporting current events;
....
212.4. Fair use of the broadcast subject to the conditions under Section 185.(Sec. 44,
P.D. No. 49a) (Emphasis supplied)
The determination of what constitutes fair use depends on several factors. Section 185 of
the Intellectual Property Code states:
SECTION 185. Fair Use of a Copyrighted Work. —
185.1. The fair use of a copyrighted work for criticism, comment, news reporting,
teaching including multiple copies for classroom use, scholarship, research, and similar
purposes is not an infringement of copyright. . . . In determining whether the use made of
a work in any particular case is fair use, the factors to be considered shall include:
a. The purpose and character of the use, including whether such use is of a
commercial nature or is for non-profit educational purposes;
b. The nature of the copyrighted work;
c. The amount and substantiality of the portion used in relation to the copyrighted
work as a whole; and
d. The effect of the use upon the potential market for or value of the copyrighted
work. Respondents allege that the news footage was only five (5) seconds long,
thus falling under fair use. ABS-CBN belies this contention and argues that the
footage aired for two (2) minutes and 40 seconds.113 According to the Court of
Appeals, the parties admitted that only five (5) seconds of the news footage was
broadcasted by GMA-7.114
This court defined fair use as "aprivilege to use the copyrighted material in a reasonable
manner without the consent of the copyright owner or as copying the theme or ideas
rather than their expression."115 Fair use is an exception to the copyright owner’s
monopoly of the use of the work to avoid stifling "the very creativity which that law is
designed to foster."116
Determining fair use requires application of the four-factor test. Section 185 of the
Intellectual Property Code lists four (4) factors to determine if there was fair use of a
copyrighted work:
a. The purpose and character of the use, including whether such use is of a
commercial nature or is for non-profit educational purposes;
b. The nature of the copyrighted work;
c. The amount and substantiality of the portion used in relation to the copyrighted
work as a whole; and
d. The effect of the use upon the potential market for or value of the copyrighted
work.
First, the purpose and character of the use of the copyrighted material must fall under
those listed in Section 185, thus: "criticism, comment, news reporting, teaching including
multiple copies for classroom use, scholarship, research, and similar purposes." 117 The
purpose and character requirement is important in view of copyright’s goal to promote
creativity and encourage creation of works. Hence, commercial use of the copyrighted
work can be weighed against fair use.
The "transformative test" is generally used in reviewing the purpose and character of the
usage of the copyrighted work.118 This court must look into whether the copy of the work
adds "new expression, meaning or message" to transform it into something
else.119 "Meta-use" can also occur without necessarily transforming the copyrighted work
used.120
Second, the nature of the copyrighted work is significant in deciding whether its use was
fair. If the nature of the work is more factual than creative, then fair use will be weighed in
favor of the user.
Third, the amount and substantiality of the portion used is important to determine
whether usage falls under fair use. An exact reproduction of a copyrighted work,
compared to a small portion of it, can result in the conclusion that its use is not fair.
There may also be cases where, though the entirety of the copyrighted work is used
without consent, its purpose determines that the usage is still fair. 121 For example, a
parody using a substantial amount of copyrighted work may be permissible as fair use as
opposed to a copy of a work produced purely for economic gain. Lastly, the effect of the
use on the copyrighted work’s market is also weighed for or against the user. If this court
finds that the use had or will have a negative impact on the copyrighted work’s market,
then the use is deemed unfair.
The structure and nature of broadcasting as a business requires assigned values for
each second of broadcast or airtime. In most cases, broadcasting organizations generate
revenue through sale of time or timeslots to advertisers, which, in turn, is based on
market share:122 Once a news broadcast has been transmitted, the broadcast becomes
relatively worthless to the station. In the case of the aerial broadcasters, advertising
sales generate most of the profits derived from news reports. Advertising rates are, in
turn, governed by market share. Market share is determined by the number of people
watching a show at any particular time, relative to total viewers at that time. News is by
nature time-limited, and so re-broadcasts are generally of little worth because they draw
few viewers. Newscasts compete for market share by presenting their news in an
appealing format that will capture a loyal audience. Hence, the primary reason for
copyrighting newscasts by broadcasters would seem to be to prevent competing stations
from rebroadcasting current news from the station with the best coverage of a particular
news item, thus misappropriating a portion of the market share.
Of course, in the real world there are exceptions to this perfect economic view. However,
there are also many caveats with these exceptions. A common exception is that some
stations rebroadcast the news of others. The caveat is that generally, the two stations
are not competing for market share. CNN, for example, often makes news stories
available to local broadcasters. First, the local broadcaster is often not affiliated with a
network (hence its need for more comprehensive programming), confining any possible
competition to a small geographical area. Second, the local broadcaster is not in
competition with CNN. Individuals who do not have cable TV (or a satellite dish with
decoder) cannot receive CNN; therefore there is no competition. . . . Third, CNN sells the
right of rebroadcast to the local stations. Ted Turner, owner of CNN, does not have First
Amendment freedom of access argument foremost on his mind. (Else he would give
everyone free cable TV so everyone could get CNN.) He is in the business for a profit.
Giving away resources does not a profit make. 123 (Emphasis supplied)
The high value afforded to limited time periods is also seen in other media. In social
media site Instagram, users are allowed to post up to only 15 seconds of video.124 In
short-video sharing website Vine,125 users are allowed a shorter period of six (6) seconds
per post. The mobile application 1 Second Everyday takes it further by capturing and
stitching one (1) second of video footage taken daily over a span of a certain period. 126
Whether the alleged five-second footage may be considered fair use is a matter of
defense. We emphasize that the case involves determination of probable cause at the
preliminary investigation stage. Raising the defense of fair use does not automatically
mean that no infringement was committed. The investigating prosecutor has full
discretion to evaluate the facts, allegations, and evidence during preliminary
investigation. Defenses raised during preliminary investigation are subject to further proof
and evaluation before the trial court. Given the insufficiency of available evidence,
determination of whether the Angelo dela Cruz footage is subject to fair use is better left
to the trial court where the proceedings are currently pending. GMA-7’s rebroadcast of
ABS-CBN’s news footage without the latter’s consent is not an issue. The mere act of
rebroadcasting without authority from the owner of the broadcast gives rise to the
probability that a crime was committed under the Intellectual Property Code.
VII
Respondents cannot invoke the defense of good faith to argue that no probable cause
exists.
Respondents argue that copyright infringement is malum in se, in that "[c]opying alone is
not what is being prohibited, but its injurious effect which consists in the lifting from the
copyright owners’ film or materials, that were the result of the latter’s creativity, work and
productions and without authority, reproduced, sold and circulated for commercial use to
the detriment of the latter."127
Infringement under the Intellectual Property Code is malum prohibitum. The Intellectual
Property Code is a special law. Copyright is a statutory creation:
Copyright, in the strict sense of the term, is purely a statutory right. It is a new or
independent right granted by the statute, and not simply a pre-existing right regulated by
the statute. Being a statutory grant, the rights are only such as the statute confers, and
may be obtained and enjoyed only with respect to the subjects and by the persons, and
on terms and conditions specified in the statute. 128
The general rule is that acts punished under a special law are malum prohibitum. 129 "An
act which is declared malum prohibitum, malice or criminal intent is completely
immaterial."130
In contrast, crimes mala in seconcern inherently immoral acts:
Not every criminal act, however, involves moral turpitude. It is for this reason that "as to
what crime involves moral turpitude, is for the Supreme Court to determine". In resolving
the foregoing question, the Court is guided by one of the general rules that crimes mala
in se involve moral turpitude, while crimes mala prohibita do not, the rationale of which
was set forth in "Zari v. Flores," to wit:
It (moral turpitude) implies something immoral in itself, regardless of the fact that it is
punishable by law or not. It must not be merely mala prohibita, but the act itself must be
inherently immoral. The doing of the act itself, and not its prohibition by statute fixes the
moral turpitude. Moral turpitude does not, however, include such acts as are not of
themselves immoral but whose illegality lies in their being positively prohibited.
(Emphasis supplied)
[These] guidelines nonetheless proved short of providing a clear cut solution, for in
International Rice Research Institute v. NLRC, the Court admitted that it cannot always
be ascertained whether moral turpitude does or does not exist by merely classifying a
crime as malum in se or as malum prohibitum. There are crimes which are mala in se
and yet but rarely involve moral turpitude and there are crimes which involve moral
turpitude and are mala prohibita only. In the final analysis, whether or not a crime
involves moral turpitude is ultimately a question of fact and frequently depends on all the
circumstances surrounding the violation of the statue. 131 (Emphasis in the original)
"Implicit in the concept of mala in se is that of mens rea." 132 Mens reais defined as "the
nonphysical element which, combined with the act of the accused, makes up the crime
charged. Most frequently it is the criminal intent, or the guilty mind[.]" 133
Crimes mala in sepre suppose that the person who did the felonious act had criminal
intent to do so, while crimes mala prohibita do not require knowledge or criminal intent:
In the case of mala in se it is necessary, to constitute a punishable offense, for the
person doing the act to have knowledge of the nature of his act and to have a criminal
intent; in the case of mala prohibita, unless such words as "knowingly" and "willfully" are
contained in the statute, neither knowledge nor criminal intent is necessary. In other
words, a person morally quite innocent and with every intention of being a law abiding
citizen becomes a criminal, and liable to criminal penaltes, if he does an act prohibited by
these statutes.134 (Emphasis supplied) Hence, "[i]ntent to commit the crime and intent to
perpetrate the act must be distinguished. A person may not have consciously intended to
commit a crime; but he did intend to commit an act, and that act is, by the very nature of
things, the crime itself[.]"135 When an act is prohibited by a special law, it is considered
injurious to public welfare, and the performance of the prohibited act is the crime itself. 136
Volition, or intent to commit the act, is different from criminal intent. Volition or
voluntariness refers to knowledge of the act being done. On the other hand, criminal
intent — which is different from motive, or the moving power for the commission of the
crime137 — refers to the state of mind beyond voluntariness. It is this intent that is being
punished by crimes mala in se.
Unlike other jurisdictions that require intent for a criminal prosecution of copyright
infringement, the Philippines does not statutorily support good faith as a defense. Other
jurisdictions provide in their intellectual property codes or relevant laws that mens rea,
whether express or implied, is an element of criminal copyright infringement. 138
In Canada, criminal offenses are categorized under three (3) kinds: "the full mens rea
offence, meaning the accused’s actual or subjective state of mind has to be proved; strict
liability offences where no mens rea has to be proved but the accused can avoid liability
if he can prove he took all reasonable steps to avoid the particular event; [and] absolute
liability offences where Parliament has made it clear that guilt follows proof of the
prescribed act only."139 Because of the use of the word "knowingly" in Canada’s Copyright
Act, it has been held that copyright infringement is a full mens rea offense. 140
In the United States, willful intent is required for criminal copyright infringement. 141 Before
the passage of the No Electronic Theft Act, "civil copyright infringements were violations
of criminal copyright laws only if a defendant willfully infringed a copyright ‘for purposes
of commercial advantage or private financial gain.’" 142 However, the No Electronic Theft
Act now allows criminal copyright infringement without the requirement of commercial
gain. The infringing act may or may not be for profit.143
There is a difference, however, between the required liability in civil copyright
infringement and that in criminal copyright infringement in the United States. Civil
copyright infringement does not require culpability and employs a strict liability
regime144 where "lack of intention to infringe is not a defense to an action for
infringement."145
In the Philippines, the Intellectual Property Code, as amended, provides for the
prosecution of criminal actions for the following violations of intellectual property rights:
Repetition of Infringement of Patent (Section 84); Utility Model (Section 108); Industrial
Design (Section 119); Trademark Infringement (Section 155 in relation to Section 170);
Unfair Competition (Section 168 in relation to Section 170); False Designations of Origin,
False Description or Representation (Section 169.1 in relation to Section 170);
infringement of copyright, moral rights, performers’ rights, producers’ rights, and
broadcasting rights (Section 177, 193, 203, 208 and 211 in relation to Section 217); and
other violations of intellectual property rights as may be defined by law.
The Intellectual Property Code requires strict liability for copyright infringement whether
for a civil action or a criminal prosecution; it does not require mens rea or culpa: 146
SECTION 216. Remedies for Infringement. —
216.1. Any person infringing a right protected under this law shall be liable:
a. To an injunction restraining such infringement. The court may also
order the defendant to desist from an infringement, among others, to
prevent the entry into the channels of commerce of imported goods that
involve an infringement, immediately after customs clearance of such
goods.
b. Pay to the copyright proprietor or his assigns or heirs such actual
damages, including legal costs and other expenses, as he may have
incurred due to the infringement as well as the profits the infringer may
have made due to such infringement, and in proving profits the plaintiff
shall be required to prove sales only and the defendant shall be required
to prove every element of cost which he claims, or, in lieu of actual
damages and profits, such damages which to the court shall appear to be
just and shall not be regarded as penalty.
c. Deliver under oath, for impounding during the pendency of the action,
upon such terms and conditions as the court may prescribe, sales
invoices and other documents evidencing sales, all articles and their
packaging alleged to infringe a copyright and implements for making
them.
d. Deliver under oath for destruction without any compensation all
infringing copies or devices, as well as all plates, molds, or other means
for making such infringing copies as the court may order.
e. Such other terms and conditions, including the payment of moral and
exemplary damages, which the court may deem proper, wise and
equitable and the destruction of infringing copies of the work even in the
event of acquittal in a criminal case.
216.2. In an infringement action, the court shall also have the power to order the
seizure and impounding of any article which may serve as evidence in the court
proceedings. (Sec. 28, P.D. No. 49a)
SECTION 217. Criminal Penalties. — 217.1. Any person infringing any right secured by
provisions of Part IV of this Actor aiding or abetting such infringement shall be guilty of a
crime punishable by:
a. Imprisonment of one (1) year to three (3) years plus a fine ranging from
Fifty thousand pesos (₱50,000) to One hundred fifty thousand pesos
(₱150,000) for the first offense.
b. Imprisonment of three (3) years and one (1) day to six (6) years plus a
fine ranging from One hundred fifty thousand pesos (₱150,000) to Five
hundred thousand pesos (₱500,000) for the second offense.
c. Imprisonment of six (6) years and one (1) day to nine (9) years plus a
fine ranging from Five hundred thousand pesos (₱500,000) to One
million five hundred thousand pesos (₱1,500,000) for the third and
subsequent offenses.
d. In all cases, subsidiary imprisonment in cases of insolvency.
217.2. In determining the number of years of imprisonment and the amount of
fine, the court shall consider the value of the infringing materials that the
defendant has produced or manufactured and the damage that the copyright
owner has suffered by reason of the infringement.
217.3. Any person who at the time when copyright subsists in a work has in his
possession an article which he knows, or ought to know, to be an infringing copy
of the work for the purpose of: a. Selling, letting for hire, or by way of trade
offering or exposing for sale, or hire, the article;
b. Distributing the article for purpose of trade, or for any other purpose to
an extent that will prejudice the rights of the copyright owner in the work;
or
c. Trade exhibit of the article in public, shall be guilty of an offense and
shall be liable on conviction to imprisonment and fine as above
mentioned. (Sec. 29, P.D. No. 49a) (Emphasis supplied)
The law is clear. Inasmuch as there is wisdom in prioritizing the flow and exchange of
ideas as opposed to rewarding the creator, it is the plain reading of the law in conjunction
with the actions of the legislature to which we defer. We have continuously "recognized
the power of the legislature . . . to forbid certain acts in a limited class of cases and to
make their commission criminal without regard to the intent of the doer. Such legislative
enactments are based on the experience that repressive measures which depend for
their efficiency upon proof of the dealer’s knowledge or of his intent are of little use and
rarely accomplish their purposes."147
Respondents argue that live broadcast of news requires a different treatment in terms of
good faith, intent, and knowledge to commit infringement. To argue this point, they rely
on the differences of the media used in Habana et al. v. Robles, Columbia Pictures v.
Court of Appeals, and this case:
Petitioner ABS-CBN argues that lack of notice that the Angelo dela Cruz was under
embargo is not a defense in copyright infringement and cites the case of Columbia
Pictures vs. Court of Appeals and Habana et al. vs. Robles(310 SCRA 511). However,
these cases refer to film and literary work where obviously there is "copying" from an
existing material so that the copier knew that he is copying from an existing material not
owned by him. But, how could respondents know that what they are "copying was not
[theirs]" when they were not copying but merely receiving live video feed from Reuters
and CNN which they aired? What they knew and what they aired was the Reuters live
video feed and the CNN feed which GMA-7 is authorized to carry in its news broadcast, it
being a subscriber of these companies[.]
It is apt to stress that the subject of the alleged copyright infringement is not a film or
literary work but live broadcast of news footage. In a film or literary work, the infringer is
confronted face to face with the material he is allegedly copying and therefore knows, or
is presumed to know, that what he is copying is owned by another. Upon the other hand,
in live broadcast, the alleged infringer is not confronted with the fact that the material he
airs or re-broadcasts is owned by another, and therefore, he cannot be charged of
knowledge of ownership of the material by another. This specially obtains in the Angelo
dela Cruz news footage which GMA-7 received from Reuters and CNN. Reuters and
CNN were beaming live videos from the coverage which GMA-7 received as a subscriber
and, in the exercise of its rights as a subscriber, GMA-7 picked up the live video and
simultaneously re-broadcast it. In simultaneously broadcasting the live video footage of
Reuters, GMA-7 did not copy the video footage of petitioner ABS-CBN[.]148 (Emphasis in
the original)
Respondents’ arguments must fail.
Respondents are involved and experienced in the broadcasting business. They knew
that there would be consequences in carrying ABS-CBN’s footage in their broadcast.
That is why GMA-7 allegedly cut the feed from Reuters upon seeing ABS-CBN’s ogo and
reporter. To admit a different treatment for broadcasts would mean abandonment of a
broadcasting organization’s minimum rights, including copyright on the broadcast
material and the right against unauthorized rebroadcast of copyrighted material. The
nature of broadcast technology is precisely why related or neighboring rights were
created and developed. Carving out an exception for live broadcasts would go against
our commitments under relevant international treaties and agreements, which provide for
the same minimum rights.149
Contrary to respondents’ assertion, this court in Habana, 150 reiterating the ruling in
Columbia Pictures,151 ruled that lack of knowledge of infringement is not a valid defense.
Habana and Columbia Pictures may have different factual scenarios from this case, but
their rulings on copyright infringement are analogous. In Habana, petitioners were the
authors and copyright owners of English textbooks and workbooks. The case was
anchored on the protection of literary and artistic creations such as books. In Columbia
Pictures, video tapes of copyrighted films were the subject of the copyright infringement
suit.
In Habana, knowledge of the infringement is presumed when the infringer commits the
prohibited act:
The essence of intellectual piracy should be essayed in conceptual terms in order to
underscore its gravity by an appropriate understanding thereof. Infringement of a
copyright is a trespass on a private domain owned and occupied by the owner of the
copyright, and, therefore, protected by law, and infringement of copyright, or piracy,
which is a synonymous term in this connection, consists in the doing by any person,
without the consent of the owner of the copyright, of anything the sole right to do which is
conferred by statute on the owner of the copyright.
....
A copy of a piracy is an infringement of the original, and it is no defense that the pirate, in
such cases, did not know whether or not he was infringing any copyright; he at least
knew that what he was copying was not his, and he copied at his peril.
....
In cases of infringement, copying alone is not what is prohibited. The copying must
produce an "injurious effect". Here, the injury consists in that respondent Robles lifted
from petitioners’ book materials that were the result of the latter’s research work and
compilation and misrepresented them as her own. She circulated the book DEP for
commercial use and did not acknowledge petitioners as her source. 152 (Emphasis
supplied)
Habana and Columbia Pictures did not require knowledge of the infringement to
constitute a violation of the copyright. One does not need to know that he or she is
copying a work without consent to violate copyright law. Notice of fact of the embargo
from Reuters or CNN is not material to find probable cause that respondents committed
infringement. Knowledge of infringement is only material when the person is charged of
aiding and abetting a copyright infringement under Section 217 of the Intellectual
Property Code.153
We look at the purpose of copyright in relation to criminal prosecutions requiring
willfulness: Most importantly, in defining the contours of what it means to willfully infringe
copyright for purposes of criminal liability, the courts should remember the ultimate aim
of copyright. Copyright is not primarily about providing the strongest possible protection
for copyright owners so that they have the highest possible incentive to create more
works. The control given to copyright owners is only a means to an end: the promotion of
knowledge and learning. Achieving that underlying goal of copyright law also requires
access to copyrighted works and it requires permitting certain kinds of uses of
copyrighted works without the permission of the copyright owner. While a particular
defendant may appear to be deserving of criminal sanctions, the standard for
determining willfulness should be set with reference to the larger goals of copyright
embodied in the Constitution and the history of copyright in this country. 154
In addition, "[t]he essence of intellectual piracy should be essayed in conceptual terms in
order to underscore its gravity by an appropriate understanding thereof. Infringement of a
copyright is a trespass on a private domain owned and occupied by the owner of the
copyright, and, therefore, protected by law, and infringement of copyright, or piracy,
which is a synonymous term in this connection, consists in the doing by any person,
without the consent of the owner of the copyright, of anything the sole right to do which is
conferred by statute on the owner of the copyright." 155
Intellectual property rights, such as copyright and the neighboring right against
rebroadcasting, establish an artificial and limited monopoly to reward creativity. Without
these legally enforceable rights, creators will have extreme difficulty recovering their
costs and capturing the surplus or profit of their works as reflected in their markets. This,
in turn, is based on the theory that the possibility of gain due to creative work creates an
incentive which may improve efficiency or simply enhance consumer welfare or utility.
More creativity redounds to the public good.
These, however, depend on the certainty of enforcement. Creativity, by its very nature, is
vulnerable to the free rider problem. It is easily replicated despite the costs to and efforts
of the original creator. The more useful the creation is in the market, the greater the
propensity that it will be copied. The most creative and inventive individuals are usually
those who are unable to recover on their creations.
Arguments against strict liability presuppose that the Philippines has a social, historical,
and economic climate similar to those of Western jurisdictions. As it stands, there is a
current need to strengthen intellectual property protection.
Thus, unless clearly provided in the law, offenses involving infringement of copyright
protections should be considered malum prohibitum. It is the act of infringement, not the
intent, which causes the damage. To require or assume the need to prove intent defeats
the purpose of intellectual property protection.
Nevertheless, proof beyond reasonable doubt is still the standard for criminal
prosecutions under the Intellectual Property Code.
VIII
Respondents argue that GMA-7’s officers and employees cannot be held liable for
infringement under the Intellectual Property Code since it does not expressly provide
direct liability of the corporate officers. They explain that "(i) a corporation may be
charged and prosecuted for a crime where the penalty is fine or both imprisonment and
fine, and if found guilty, may be fined; or (ii) a corporation may commit a crime but if the
statute prescribes the penalty therefore to be suffered by the corporate officers, directors
or employees or other persons, the latter shall be responsible for the offense." 156
Section 217 of the Intellectual Property Code states that "any person" may be found
guilty of infringement. It also imposes the penalty of both imprisonment and fine:
Section 217. Criminal Penalties. - 217.1. Any person infringing any right secured by
provisions of Part IV of this Act or aiding or abetting such infringement shall be guilty of a
crime punishable by:
(a) Imprisonment of one (1) year to three (3) years plus a fine ranging from Fifty
thousand pesos (₱50,000) to One hundred fifty thousand pesos (₱150,000) for
the first offense.
(b) Imprisonment of three (3) years and one (1) day to six (6) years plus a fine
ranging from One hundred fifty thousand pesos (₱150,000) to Five hundred
thousand pesos (₱500,000) for the second offense.
(c) Imprisonment of six (6) years and one (1) day to nine (9) years plus a fine
ranging from five hundred thousand pesos (₱500,000) to One million five
hundred thousand pesos (₱1,500,000) for the third and subsequent offenses.
(d) In all cases, subsidiary imprisonment in cases of insolvency. (Emphasis
supplied) Corporations have separate and distinct personalities from their officers
or directors.157 This court has ruled that corporate officers and/or agents may be
held individually liable for a crime committed under the Intellectual Property
Code:158
Petitioners, being corporate officers and/or directors, through whose act, default or
omission the corporation commits a crime, may themselves be individually held
answerable for the crime. . . . The existence of the corporate entity does not shield from
prosecution the corporate agent who knowingly and intentionally caused the corporation
to commit a crime. Thus, petitioners cannot hide behind the cloak of the separate
corporate personality of the corporation to escape criminal liability. A corporate officer
cannot protect himself behind a corporation where he is the actual, present and efficient
actor.159
However, the criminal liability of a corporation’s officers or employees stems from their
active participation in the commission of the wrongful act:
The principle applies whether or not the crime requires the consciousness of
wrongdoing. It applies to those corporate agents who themselves commit the crime and
to those, who, by virtue of their managerial positions or other similar relation to the
corporation, could be deemed responsible for its commission, if by virtue of their
relationship to the corporation, they had the power to prevent the act. Moreover, all
parties active in promoting a crime, whether agents or not, are principals. Whether such
officers or employees are benefited by their delictual acts is not a touchstone of their
criminal liability. Benefit is not an operative fact.160 (Emphasis supplied) An accused’s
participation in criminal acts involving violations of intellectual property rights is the
subject of allegation and proof. The showing that the accused did the acts or contributed
in a meaningful way in the commission of the infringements is certainly different from the
argument of lack of intent or good faith. Active participation requires a showing of overt
physical acts or intention to commit such acts. Intent or good faith, on the other hand, are
inferences from acts proven to have been or not been committed.
We find that the Department of Justice committed grave abuse of discretion when it
resolved to file the Information against respondents despite lack of proof of their actual
participation in the alleged crime.
Ordering the inclusion of respondents Gozon, GMA-7 President; Duavit, Jr., Executive
Vice-President; Flores, Vice-President for News and Public Affairs; and Soho, Director
for News, as respondents, Secretary Agra overturned the City Prosecutor’s finding that
only respondents Dela Peña-Reyes and Manalastas are responsible for the crime
charged due to their duties.161 The Agra Resolution reads:
Thus, from the very nature of the offense and the penalty involved, it is necessary that
GMA-7’s directors, officers, employees or other officers thereof responsible for the
offense shall be charged and penalized for violation of the Sections 177 and 211 of
Republic Act No. 8293. In their complaint for libel, respondents Felipe L Gozon, Gilberto
R. Duavit, Jr., Marissa L. Flores, Jessica A.Soho, Grace Dela Pena-Reyes, John Oliver
T. Manalastas felt they were aggrieved because they were "in charge of the
management, operations and production of news and public affairs programs of the
network" (GMA-7). This is clearly an admission on respondents’ part. Of course,
respondents may argue they have no intention to infringe the copyright of ABS-CBN; that
they acted in good faith; and that they did not directly cause the airing of the subject
footage, but again this is preliminary investigation and what is required is simply probable
cause. Besides, these contentions can best be addressed in the course of
trial.162 (Citation omitted)
In contrast, the Office of the City Prosecutor, in the Resolution dated December 3, 2004,
found that respondents Gozon, Duavit, Jr., Flores, and Soho did not have active
participation in the commission of the crime charged:
This Office, however, does not subscribe to the view that respondents Atty. Felipe
Gozon, Gilberto Duavit, Marissa Flores and Jessica Soho should be held liable for the
said offense. Complainant failed to present clear and convincing evidence that the said
respondents conspired with Reyes and Manalastas. No evidence was adduced to prove
that these respondents had an active participation in the actual commission of the
copyright infringement or they exercised their moral ascendancy over Reyes and
Manalastas in airing the said footage. It must be stressed that, conspiracy must be
established by positive and conclusive evidence. It must be shown to exist as clearly and
convincingly as the commission of the offense itself.163 (Emphasis supplied, citations
omitted)
The City Prosecutor found respondents Dela Peña-Reyes and Manalastas liable due to
the nature of their work and responsibilities. He found that:
[t]his Office however finds respondents Grace Dela Peña-Reyes and John Oliver T.
Manalastas liable for copyright infringement penalized under Republic Act No. 8293. It is
undisputed that complainant ABSCBN holds the exclusive ownership and copyright over
the "Angelo [d]ela Cruz news footage". Hence, any airing and re-broadcast of the said
footage without any consent and authority from ABS-CBN will be held as an infringement
and violation of the intellectual property rights of the latter. Respondents Grace Dela
Peña-Reyes as the Head of the News Operation and John Oliver T. Manalastas as the
Program Manager cannot escape liability since the news control room was under their
direct control and supervision. Clearly, they must have been aware that the said footage
coming from Reuters or CNN has a "No Access Philippines" advisory or embargo thus
cannot be re-broadcast. We find no merit to the defense of ignorance interposed by the
respondents. It is simply contrary to human experience and logic that experienced
employees of an established broadcasting network would be remiss in their duty in
ascertaining if the said footage has an embargo.164 (Emphasis supplied)
We agree with the findings as to respondents Dela Peña-Reyes and Manalastas. Both
respondents committed acts that promoted infringement of ABS-CBN’s footage. We note
that embargoes are common occurrences in and between news agencies and/or
broadcast organizations.165 Under its Operations Guide, Reuters has two (2) types of
embargoes: transmission embargo and publication embargo.166 Under ABS-CBN’s
service contract with Reuters, Reuters will embargo any content contributed by ABS-
CBN from other broadcast subscribers within the same geographical location:
4a. Contributed Content
You agree to supply us at our request with news and sports news stories broadcast on
the Client Service of up to three (3) minutes each for use in our Services on a non-
exclusive basis and at a cost of US$300.00 (Three Hundred United States Dollars) per
story. In respect of such items we agree to embargo them against use by other
broadcast subscribers in the Territory and confirm we will observe all other conditions of
usage regarding Contributed Content, as specified in Section 2.5 of the Reuters
Business Principles for Television Services. For the purposes of clarification, any
geographical restriction imposed by you on your use of Contributed Content will not
prevent us or our clients from including such Contributed Content in online transmission
services including the internet. We acknowledge Contributed Content is your copyright
and we will not acquire any intellectual property rights in the Contributed
Content.167 (Emphasis supplied)
Respondents Dela Peña-Reyes and Manalastas merely denied receiving the advisory
sent by Reuters to its clients, including GMA-7. As in the records, the advisory reads:
ADVISORY - - +++LIVE COVER PLANS+++
PHILIPPINES: HOSTAGE RETURN
**ATTENTION ALL CLIENTS**
PLEASE BE ADVISED OF THE FOLLOWING LIVE COVER
PLANNED FOR THURSDAY, JULY 22:
....
SOURCE: ABS-CBN
TV AND WEB RESTRICTIONS: NO ACCESS PHILIPPINES.168
There is probable cause that respondents Dela Peña-Reyes and Manalastas directly
committed copyright infringement of ABS-CBN’s news footage to warrant piercing of the
corporate veil. They are responsible in airing the embargoed Angelo dela Cruz footage.
They could have prevented the act of infringement had they been diligent in their
functions as Head of News Operations and Program Manager.
Secretary Agra, however, committed grave abuse of discretion when he ordered the filing
of the Information against all respondents despite the erroneous piercing of the corporate
veil. Respondents Gozon, Duavit, Jr., Flores, and Soho cannot be held liable for the
criminal liability of the corporation.
Mere membership in the Board or being President per se does not mean knowledge,
approval, and participation in the act alleged as criminal. There must be a showing of
active participation, not simply a constructive one.
Under principles of criminal law, the principals of a crime are those "who take a direct
part in the execution of the act; [t]hose who directly force or induce others to commit it;
[or] [t]hose who cooperate in the commission of the offense by another act without which
it would not have been accomplished."169 There is conspiracy "when two or more persons
come to an agreement concerning the commission of a felony and decide to commit it": 170
Conspiracy is not presumed. Like the physical acts constituting the crime itself, the
elements of conspiracy must be proven beyond reasonable doubt. While conspiracy
1âwphi1
need not be established by direct evidence, for it may be inferred from the conduct of the
accused before, during and after the commission of the crime, all taken together,
however, the evidence must be strong enough to show the community of criminal design.
For conspiracy to exist, it is essential that there must be a conscious design to commit an
offense. Conspiracy is the product of intentionality on the part of the cohorts.
It is necessary that a conspirator should have performed some overt act as a direct or
indirect contribution to the execution of the crime committed. The overt act may consist
of active participation in the actual commission of the crime itself, or it may consist of
moral assistance to his co-conspirators by being present at the commission of the crime
or by exerting moral ascendancy over the other co-conspirators[.]171 (Emphasis supplied,
citations omitted)
In sum, the trial court erred in failing to resume the proceedings after the designated
period. The Court of Appeals erred when it held that Secretary Agra committed errors of
jurisdiction despite its own pronouncement that ABS-CBN is the owner of the copyright
on the news footage. News should be differentiated from expression of the news,
particularly when the issue involves rebroadcast of news footage. The Court of Appeals
also erroneously held that good faith, as. well as lack of knowledge of infringement, is a
defense against criminal prosecution for copyright and neighboring rights infringement. In
its current form, the Intellectual Property Code is malum prohibitum and prescribes a
strict liability for copyright infringement. Good faith, lack of knowledge of the copyright, or
lack of intent to infringe is not a defense against copyright infringement. Copyright,
however, is subject to the rules of fair. use and will be judged on a case-to-case basis.
Finding probable cause includes a determination of the defendant's active participation,
particularly when the corporate veil is pierced in cases involving a corporation's criminal
liability.
WHEREFORE, the Petition is partially GRANTED. The Department of Justice Resolution
dated June 29, 2010 ordering the filing of the Information is hereby REINSTATED as to
respondents Grace Dela Pena-Reyes and John Oliver T. Manalastas. Branch 93 of the
Regional Trial Court of Quezon City is directed to continue with the proceedings in
Criminal Case No. Q-04-131533.
SO ORDERED.
G.R. Nos. 212140-41 January 21, 2015
SENATOR JINGGOY EJERCITO ESTRADA, Petitioner,
vs.
OFFICE OF THE OMBUDSMAN, FIELD INVESTIGATION OFFICE, Office of the
Ombudsman, NATIONAL BUREAU OF INVESTIGATION and ATTY. LEVITO D.
BALIGOD, Respondents.
DECISION
CARPIO, J.:
It is a fundamental principle that the accused in a preliminary investigation has no right to
cross-examine the witnesses which the complainant may present. Section 3, Rule 112 of
the Rules of Court expressly provides that the respondent shall only have the right to
submit a counter-affidavit, to examine all other evidence submitted by the complainant
and, where the fiscal sets a hearing to propound clarificatory questions to the parties or
their witnesses, to be afforded an opportunity to be present but without the right to
examine or crossexamine.
- Paderanga v. Drilon1
This case is a Petition for Certiorari2 with prayer for (1) the issuance of a temporary
restraining order and/or Writ of Preliminary Injunction enjoining respondents Office of the
Ombudsman (Ombudsman), Field Investigation Office (FIO) of the Ombudsman,
National Bureau of Investigation (NBI), and Atty. Levito D. Baligod (Atty. Baligod)
(collectively, respondents), from conducting further proceedings in OMB-CC-13-03013
and OMB-C-C-13-0397 until the present Petition has been resolved with finality; and (2)
this Court’s declaration that petitioner Senator Jinggoy Ejercito Estrada (Sen.
Estrada)was denied due process of law, and that the Order of the Ombudsman dated 27
March 2014 and the proceedings in OMB-C-C-13-03013 and OMB-C-C-13-0397
subsequent to and affected by the issuance of the challenged 27 March 2014 Order are
void.
OMB-C-C-13-0313,3 entitled National Bureau of Investigation and Atty. Levito D. Baligod
v. Jose "Jinggoy" P. Ejercito Estrada, et al.,refers to the complaint for Plunder as defined
under Republic Act (RA) No. 7080, while OMB-C-C-13-0397,4 entitled Field Investigation
Office, Office of the Ombudsman v. Jose "Jinggoy" P. Ejercito-Estrada, et al., refers to
the complaint for Plunder as defined underRA No. 7080 and for violation of Section 3(e)
of RA No. 3019 (Anti-Graft and Corrupt Practices Act).
The Facts
On 25 November 2013, the Ombudsman served upon Sen. Estrada a copy of the
complaint in OMB-C-C-13-0313, filed by the NBI and Atty. Baligod, which prayed, among
others, that criminal proceedings for Plunder as defined in RA No. 7080 be conducted
against Sen. Estrada. Sen. Estrada filed his counter-affidavit inOMB-C-C-13-0313 on 9
January 2014.
On 3 December 2013, the Ombudsman served upon Sen. Estrada a copy of the
complaint in OMB-C-C-13-0397, filed by the FIO of the Ombudsman, which prayed,
among others, that criminal proceedings for Plunder, as defined in RA No. 7080, and for
violation of Section 3(e) of RA No. 3019, be conducted against Sen. Estrada. Sen.
Estrada filed his counter affidavit in OMB-C-C-13-0397 on 16 January 2014.
Eighteen of Sen. Estrada’s co-respondents in the two complaints filed their counter-
affidavits between 9 December 2013 and 14 March 2014. 5
On 20 March 2014, Sen. Estrada filed his Request to be Furnished with Copies of
Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other
Filings (Request) in OMB-C-C-13-0313. In his Request, Sen. Estrada asked for copies of
the following documents:
(a) Affidavit of [co-respondent] Ruby Tuason (Tuason);
(b) Affidavit of [co-respondent] Dennis L. Cunanan (Cunanan);
(c) Counter-Affidavit of [co-respondent] Gondelina G. Amata (Amata);
(d) Counter-Affidavit of [co-respondent] Mario L. Relampagos (Relampagos);
 (e) Consolidated Reply of complainant NBI, if one had been filed; and
(f) Affidavits/Counter-Affidavits/Pleadings/Filings filed by all the other
respondents and/or additional witnesses for the Complainants. 6
Sen. Estrada’s request was made "[p]ursuant to the right of a respondent ‘to examine the
evidence submitted by the complainant which he may not have been furnished’ (Section
3[b], Rule 112 of the Rules of Court) and to ‘have access to the evidence on record’
(Section 4[c], Rule II of the Rules of Procedure of the Office of the Ombudsman)." 7
On 27 March 2014, the Ombudsman issued the assailed Order in OMB-C-C-13-0313.
The pertinent portions of the assailed Order read:
This Office finds however finds [sic] that the foregoing provisions [pertaining to Section
3[b], Rule 112 of the Rules of Court and Section 4[c], Rule II of the Rules of Procedure of
the Office of the Ombudsman] do not entitle respondent [Sen. Estrada]to be furnished all
the filings of the respondents.
Rule 112 (3) (a) & (c) of the Rules of Court provides [sic]:
(a) The complaintshall state the address of the respondent and shall be
accompanied by the affidavits of the complainant and his witnesses, as well as
other supporting documents to establish probable cause …
xxx xxx xxx
(c) Within ten (10) days from receipt of the subpoena with the complaint and
supporting affidavits and documents, the respondent shall submit his counter
affidavit and that of his witnesses and other supporting documents relied upon for
his defense. The counter affidavits shall be subscribed and sworn to and certified
as provided in paragraph (a) of this section, with copies thereof furnished by him
to the complainant.
Further to quote the rule in furnishing copies of affidavits to parties under the Rules of
Procedure of the Office of the Ombudsman [Section 4 of Rule II of Administrative Order
No. 07 issued on April 10, 1990]:
a) If the complaint is not under oath or is based only on official reports, the
investigating officer shall require the complainant or supporting witnesses to
execute affidavits to substantiate the complaints.
b) After such affidavits have been secured, the investigating officer shall issue an
order, attaching thereto a copy of the affidavits and other supporting documents,
directing the respondents to submit, within ten (10) days from receipt thereof, his
counter-affidavits and controverting evidence with proof of service thereof on the
complainant. The complainant may file reply affidavits within ten (10) days after
service of the counter-affidavits.
It can be gleaned from these aforecited provisions that this Office is required to furnish
[Sen. Estrada] a copy of the Complaint and its supporting affidavits and documents; and
this Office complied with this requirement when it furnished [Sen. Estrada] with the
foregoing documents attached to the Orders to File Counter-Affidavit dated 19 November
2013 and 25 November 2013.
It is to be noted that there is noprovision under this Office’s Rules of Procedure which
entitles respondent to be furnished all the filings by the other parties, e.g. the
respondents. Ruby Tuason, Dennis Cunanan, Gondelina G. Amata and Mario L.
Relampagos themselves are all respondents in these cases. Under the Rules of Court as
well as the Rules of Procedure of the Office of the Ombudsman, the respondents are
only required to furnish their counter-affidavits and controverting evidence to the
complainant, and not to the other respondents.
To reiterate, the rights of respondent [Sen.] Estrada in the conduct of the preliminary
investigation depend on the rights granted to him by law and these cannot be based on
whatever rights he believes [that] he is entitled to or those that may be derived from the
phrase "due process of law." Thus, this Office cannot grant his motion to be furnished
with copies of all the filings by the other parties. Nevertheless, he should be furnished a
copy of the Reply of complainant NBI as he is entitled thereto under the rules; however,
as of this date, no Reply has been filed by complainant NBI.
WHEREFORE, respondent [Sen.] Estrada’s Request to be Furnished with Copies of
Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other
Filingsis DENIED. He is nevertheless entitled to be furnished a copy of the Reply if
complainant opts to file such pleading. 8 (Emphases in the original)
On 28 March 2014, the Ombudsman issued in OMB-C-C-13-0313 and OMB-C-C-13-
0397 a Joint Resolution9 which found probable cause to indict Sen. Estrada and his co-
respondents with one count of plunder and 11 counts of violation of Section 3(e) of RA
No. 3019. Sen. Estrada filed a Motion for Reconsideration (of the Joint Resolution dated
28 March 2014) dated 7 April 2014. Sen. Estrada prayed for the issuance of a new
resolution dismissing the charges against him. Without filing a Motion for
Reconsideration of the Ombudsman’s 27 March 2014 Order denying his Request, Sen.
Estrada filed the present Petition for Certiorari under Rule 65 and sought to annul and
set aside the 27 March 2014 Order.
 THE ARGUMENTS
Sen. Estrada raised the following grounds in his Petition:
THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED ORDER
DATED 27 MARCH 2014, ACTED WITHOUT OR IN EXCESS OF ITS JURISDICTION
OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION AND VIOLATED SEN. ESTRADA'S CONSTITUTIONAL RIGHT TO
DUE PROCESS OF LAW.10 Sen. Estrada also claimed that under the circumstances, he
has "no appeal or any other plain, speedy, and adequate remedy in the ordinary course
of law, except through this Petition."11 Sen. Estrada applied for the issuance of a
temporary restraining order and/or writ of preliminary injunction to restrain public
respondents from conducting further proceedings in OMB-C-C-13-0313 and OMB-C-C-
13-0397. Finally, Sen. Estrada asked for a judgment declaring that (a) he has been
denied due process of law, and as a consequence thereof, (b) the Order dated 27 March
2014, as well as the proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397
subsequent to and affected bythe issuance of the 27 March 2014 Order, are void.12
On the same date, 7 May 2014, the Ombudsman issued in OMBC-C-13-0313 and OMB-
C-C-13-0397 a Joint Order furnishing Sen. Estrada with the counter-affidavits of Tuason,
Cunanan, Amata, Relampagos, Francisco Figura, Gregoria Buenaventura, and Alexis
Sevidal, and directing him to comment thereon within a non-extendible period of five
days fromreceipt of the order.
On 12 May 2014, Sen. Estrada filed before the Ombudsman a motion to suspend
proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397 because the denial of his
Request to be furnished copies of counter-affidavits of his co-respondents deprived him
of his right to procedural due process, and he has filed the present Petition before
thisCourt. The Ombudsman denied Sen. Estrada’s motion to suspend in an Order dated
15 May 2014. Sen. Estrada filed a motion for reconsideration of the Order dated 15 May
2014 but his motion was denied in an Order dated 3 June 2014.
As of 2 June 2014,the date of filing of the Ombudsman’s Comment to the present
Petition, Sen. Estrada had not filed a comment on the counter-affidavits furnished to him.
On 4 June 2014, the Ombudsman issued a Joint Order in OMB-C-C-13-0313 and OMB-
C-C-13-0397 denying, among other motions filed by the other respondents, Sen.
Estrada’s motion for reconsideration dated 7 April 2014. The pertinent portion of the 4
June 2014 Joint Order stated:
While it is true that Senator Estrada’s request for copies of Tuason, Cunanan, Amata,
Relampagos, Figura, Buenaventura and Sevidal’s affidavits was denied by Order dated
27 March 2014 and before the promulgation of the assailed Joint Resolution, this Office
thereafter reevaluated the request and granted it byOrder dated 7 May 2014 granting his
request. Copies of the requested counter-affidavits were appended to the copy of the
Order dated 7 May 2014 transmitted to Senator Estrada through counsel.
This Office, in fact, held in abeyance the disposition of the motions for reconsideration in
this proceeding in light of its grant to Senator Estrada a period of five days from receipt of
the 7 May 2014 Order to formally respond to the above-named co-respondents’ claims.
In view of the foregoing, this Office fails to see how Senator Estrada was deprived of his
right to procedural due process.13 (Emphasis supplied)
On 2 June 2014, the Ombudsman, the FIO, and the NBI (collectively, public
respondents), through the Officeof the Solicitor General, filed their Comment to the
present Petition. The public respondents argued that:
I. PETITIONER [SEN. ESTRADA] WAS NOTDENIED DUE PROCESS OF LAW.
II. THE PETITION FOR CERTIORARI IS PROCEDURALLY INFIRM.
A. LITIS PENDENTIA EXISTS IN THIS CASE.
B. PETITIONER HAS A PLAIN, SPEEDY AND ADEQUATE REMEDY IN
THE ORDINARY COURSE OF LAW.
III. PETITIONER IS NOTENTITLED TO A WRIT OF PRELIMINARY
INJUNCTION AND/OR TEMPORARY RESTRAINING ORDER.14
On 6 June 2014, Atty. Baligod filed his Comment to the present Petition. Atty. Baligod
stated that Sen. Estrada’s resort to a Petition for Certiorari under Rule 65 is improper.
Sen. Estrada should have either filed a motion for reconsideration of the 27 March 2014
Order or incorporated the alleged irregularity in his motion for reconsideration of the 28
March 2014 Joint Resolution. There was also no violation of Sen. Estrada’s right to due
process because there is no rule which mandates that a respondent such as Sen.
Estrada be furnished with copies of the submissions of his corespondents.
On 16 June 2014, Sen. Estrada filed his Reply to the public respondents’ Comment. Sen.
Estrada insisted that he was denied due process. Although Sen. Estrada received copies
of the counter-affidavits of Cunanan, Amata, Relampagos, Buenaventura, Figura,
Sevidal, as well as one of Tuason’s counter-affidavits, heclaimed that he was not given
the following documents:
a) One other Counter-Affidavit of Ruby Tuason dated 21 February 2014;
 b) Counter-Affidavit of Sofia D. Cruz dated 31 January 2014;
c) Counter-Affidavit of Evelyn Sugcang dated 11 February 2014;
d) Two (2) Counter-Affidavits of Alan A. Javellana dated 06 February 2014;
e) Counter-Affidavit of VictorRoman Cojamco Cacal dated 11 December 2013 (to
the FIO Complaint);
f) Counter-Affidavit of VictorRoman Cojamco Cacal dated 22 January 2014 (to
the NBI Complaint);
g) Two (2) counter-affidavits of Ma. Julie A. VillaralvoJohnson both dated 14
March 2014;
h) Counter-affidavit of Rhodora Bulatad Mendoza dated 06 March 2014;
i) Counter-affidavit of Maria Ninez P. Guañizo dated 28 January 2014;
j) Two (2) counter-affidavits of Marivic V. Jover both dated 09 December 2013;
and
k) Counter-affidavit of Francisco B. Figura dated 08 January 2014. Sen. Estrada
argues that the Petition isnot rendered moot by the subsequent issuance of the 7
May 2014 Joint Order because there is a recurring violation of his right to due
process. Sen. Estrada also insists that there is no forum shopping as the present
Petition arose from an incident in the main proceeding, and that he has no other
plain, speedy, and adequate remedy in the ordinary course of law. Finally, Sen.
Estrada reiterates his application for the issuance of a temporary restraining
order and/or writ of preliminary injunction to restrain public respondents from
conducting further proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397.
This Court’s Ruling
Considering the facts narrated above, the Ombudsman’s denial in its 27 March 2014
Order of Sen. Estrada’s Request did not constitute grave abuse of discretion. Indeed, the
denial did not violate Sen. Estrada’s constitutional right to due process.
First. There is no law or rule which requires the Ombudsman to furnish a respondent with
copies of the counter-affidavits of his co-respondents.
We reproduce below Sections 3 and 4, Rule 112 of the Revised Rules of Criminal
Procedure, as well as Rule II of Administrative Order No. 7, Rules of Procedure of the
Office of the Ombudsman, for ready reference.
From the Revised Rules of Criminal Procedure, Rule 112: Preliminary Investigation
Section 3. Procedure. — The preliminary investigation shall be conducted in the following
manner:
(a) The complaint shall state the address of the respondent and shall be
accompanied by the affidavits of the complainant and his witnesses, as well as
other supporting documents to establish probable cause. They shall be in such
number of copies as there are respondents, plus two (2) copies for the official
file. The affidavits shall be subscribed and sworn to before any prosecutor or
government official authorized to administer oath, or, in their absence or
unavailability, before a notary public, each of who must certify thathe personally
examined the affiants and that he is satisfied that they voluntarily executed and
understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the investigating officer
shall either dismiss it if he finds no ground to continue with the investigation, or
issue a subpoena to the respondent attaching to it a copy of the complaint and its
supporting affidavits and documents. The respondent shall have the right to
examine the evidence submitted by the complainant which he may not have
been furnished and to copy them at his expense. If the evidence is voluminous,
the complainant may be required to specify those which he intends to present
against the respondent, and these shall be made available for examination or
copying by the respondent at his expense.
Objects as evidence need not be furnished a party but shall be made available
for examination, copying, or photographing at the expense of the requesting
party.
(c) Within ten (10) days from receipt of the subpoena with the complaint and
supporting affidavits and documents, the respondent shall submit his counter-
affidavit and that of his witnesses and other supporting documents relied upon for
his defense. The counter-affidavits shall be subscribed and sworn to and certified
as provided in paragraph (a) of this section, with copies thereof furnished by him
to the complainant. The respondent shall not be allowed to file a motion to
dismiss in lieu of a counter-affidavit.
 (d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit
counter-affidavits within the ten (10) day period, the investigating officer shall
resolve the complaint based on the evidence presented by the complainant.
(e) The investigating officer may set a hearing if there are facts and issues to be
clarified from a party ora witness. The parties can be present at the hearing but
without the right to examine or cross-examine. They may, however, submit to the
investigating officer questions which may be asked to the party or witness
concerned.
The hearing shall be held within ten (10) days from submission of the counter-
affidavits and other documents or from the expiration of the period for their
submission. It shall be terminated within five (5) days.
(f) Within ten (10) days after the investigation, the investigating officer shall
determine whether or not there is sufficient ground to hold the respondent for
trial. Section 4. Resolution of investigating prosecutor and its review.— If the
investigating prosecutor finds cause to hold the respondent for trial, he shall
prepare the resolution and information. He shall certify under oath in the
information that he, or as shown by the record, an authorized officer, has
personally examined the complainant and his witnesses; that there is reasonable
ground to believe that a crime has been committed and that the accused is
probably guilty thereof; that the accused was informed of the complaint and of
the evidence submitted against him; and that he was given an opportunity to
submit controverting evidence. Otherwise, he shall recommend the dismissal of
the complaint.
Within five (5) days from his resolution, he shall forward the record of the case to
the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman
orhis deputy in cases of offenses cognizable by the Sandiganbayan in the
exercise of its original jurisdiction. They shall act on the resolution within ten (10)
days from their receipt thereof and shall immediately inform the parties of such
action.
No complaint or information may be filed or dismissed by an investigating prosecutor
without the prior written authority or approval of the provincial or city prosecutor or chief
state prosecutor or the Ombudsman or his deputy.
Where the investigating prosecutor recommends the dismissal of the complaint but his
recommendation is disapproved by the provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy on the ground that a probable cause exists,
the latter may, by himself, file the information against the respondent, or direct any other
assistant prosecutor or state prosecutor to do so without conducting another preliminary
investigation.
If upon petition by a proper party under such rules as the Department of Justice may
prescribe or motu proprio, the Secretary of Justice reverses or modifies the resolution of
the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor
concerned either to file the corresponding information without conducting another
preliminary investigation, or to dismiss or move for dismissal of the complaint or
information with notice to the parties. The same rule shall apply in preliminary
investigations conducted by the officers of the Office of the Ombudsman. From the Rules
of Procedure of the Office of the Ombudsman, Administrative Order No. 7, Rule II:
Procedure in Criminal Cases
Section 1. Grounds. — A criminal complaint may be brought for an offense in violation of
R.A. 3019,as amended, R.A. 1379, as amended, R.A. 6713, Title VII, Chapter II, Section
2 of the Revised Penal Code, and for such other offenses committed by public officers
and employees in relation to office.
Sec. 2. Evaluation. — Upon evaluating the complaint, the investigating officer shall
recommend whether it may be:
a) dismissed outright for want of palpable merit;
b) referred to respondent for comment;
c) indorsed to the proper government office or agency which has jurisdiction over
the case;
d) forwarded to the appropriate office or official for fact-finding investigation;
e) referred for administrative adjudication; or
f) subjected to a preliminary investigation.
Sec. 3. Preliminary investigation; who may conduct.— Preliminary investigation may be
conducted by any of the following:
1) Ombudsman Investigators;
2) Special Prosecuting Officers;
3) Deputized Prosecutors;
 4) Investigating Officials authorized by law to conduct preliminary investigations;
or
5) Lawyers in the government service, so designated by the Ombudsman.
Sec. 4. Procedure. — The preliminary investigation of cases falling under the jurisdiction
of the Sandiganbayan and Regional Trial Courts shall be conducted in the manner
prescribed in Section 3, Rule 112 of the Rules of Court, subject to the following
provisions:
a) If the complaint is not under oath or is based only on official reports, the
investigating officer shall require the complainant or supporting witnesses to
execute affidavits to substantiate the complaints.
b) After such affidavits have been secured, the investigating officer shall issue an
order, attaching thereto a copy of the affidavits and other supporting documents,
directing the respondent to submit, within ten (10) days from receipt thereof, his
counter-affidavits and controverting evidence with proof of service thereof on
thecomplainant. The complainant may file reply affidavits within ten (10) days
after service of the counter-affidavits.
c) If the respondent does not file a counter-affidavit, the investigating officer may
consider the comment filed by him, if any, as his answer to the complaint. In any
event, the respondent shall have access to the evidence on record.
d) No motion to dismiss shall be allowed except for lack of jurisdiction. Neither
may a motion for a bill of particulars be entertained. If respondent desires any
matter in the complainant’s affidavit to be clarified, the particularization thereof
may be done at the time of clarificatory questioning in the manner provided in
paragraph (f) of this section.
e) If the respondent cannot be served with the order mentioned in paragraph 6
hereof, or having been served, does not comply therewith, the complaint shall be
deemed submitted for resolution on the basis of the evidence on record.
f) If, after the filing of the requisite affidavits and their supporting evidences, there
are facts material to the case which the investigating officer may need to be
clarified on, he may conduct a clarificatory hearing during which the parties shall
be afforded the opportunity to be present but without the right to examine or
cross-examine the witness being questioned. Where the appearance of the
parties or witnesses is impracticable, the clarificatory questioning may be
conducted in writing, whereby the questions desired to be asked by the
investigating officer or a party shall be reduced into writing and served on the
witness concerned who shall be required to answer the same in writing and
under oath.
g) Upon the termination of the preliminary investigation, the investigating officer
shall forward the records of the case together with his resolution to the
designated authorities for their appropriate action thereon.
No information may be filed and no complaint may be dismissed without the written
authority or approval of the Ombudsman in cases falling within the jurisdiction of the
Sandiganbayan, or of the proper Deputy Ombudsman in all other cases.
xxxx
Sec. 6. Notice to parties.— The parties shall be served with a copy of the resolution as
finally approved by the Ombudsman or by the proper Deputy Ombudsman.
Sec. 7. Motion for reconsideration.— a) Only one (1) motion for reconsideration or
reinvestigation of anapproved order or resolution shall be allowed, the same to be filed
within fifteen (15) days from notice thereof with the Office of the Ombudsman, or the
proper deputy ombudsman as the case may be.
xxxx
b) The filing of a motion for reconsideration/reinvestigation shall not bar the filing of the
corresponding Information in court on the basis of the finding of probable cause in the
resolution subject of the motion. (Emphasis supplied)
Sen. Estrada claims that the denial of his Request for the counter affidavits of his co-
respondents violates his constitutional right to due process. Sen. Estrada, however, fails
to specify a law or rule which states that it is a compulsory requirement of due process in
a preliminary investigation that the Ombudsman furnish a respondent with the counter-
affidavits of his co-respondents. Neither Section 3(b), Rule 112 of the Revised Rules of
Criminal Procedure nor Section 4(c), Rule II of the Rules of Procedure of the Office of the
Ombudsman supports Sen. Estrada’s claim. What the Rules of Procedure of the Office of
the Ombudsman require is for the Ombudsman to furnish the respondent with a copy of
the complaint and the supporting affidavits and documents at the time the order to submit
the counter-affidavit is issued to the respondent. This is clear from Section 4(b), Rule II of
the Rules of Procedure of the Office of the Ombudsman when it states, "[a]fter such
affidavits [of the complainant and his witnesses] have been secured, the investigating
officer shall issue an order, attaching thereto a copy of the affidavits and other supporting
documents, directing the respondent to submit, within ten (10) days from receipt thereof,
his counter-affidavits x x x." At this point, there is still no counter-affidavit submitted by
any respondent. Clearly, what Section 4(b) refers to are affidavits of the complainant and
his witnesses, not the affidavits of the co-respondents. Obviously, the counter-affidavits
of the co-respondents are not part of the supporting affidavits of the complainant. No
grave abuse of discretion can thus be attributed to the Ombudsman for the issuance of
the 27 March 2014 Order which denied Sen. Estrada’s Request.
Although Section 4(c), Rule II of the Rules of Procedure of the Office of the Ombudsman
provides that a respondent "shall have access to the evidence on record," this provision
should be construed in relation to Section 4(a) and (b) of the same Rule, as well as to the
Rules of Criminal Procedure. First, Section 4(a) states that "theinvestigating officer shall
require the complainant or supporting witnesses to execute affidavits to substantiate the
complaint." The "supporting witnesses" are the witnesses of the complainant, and do not
refer to the co-respondents.
Second, Section 4(b) states that "the investigating officer shall issue an order attaching
thereto a copy of the affidavits and all other supporting documents, directing the
respondent" tosubmit his counter-affidavit. The affidavits referred to in Section 4(b) are
the affidavits mentioned in Section
4(a). Clearly, the affidavits to be furnished to the respondent are the affidavits of the
complainant and his supporting witnesses. The provision in the immediately succeeding
Section 4(c) of the same Rule II that a respondent shall have "access to the evidence on
record" does not stand alone, but should be read in relation to the provisions of Section
4(a and b) of the same Rule II requiring the investigating officer to furnish the respondent
with the "affidavits and other supporting documents" submitted by "the complainant or
supporting witnesses." Thus, a respondent’s "access to evidence on record" in Section
4(c), Rule II of the Ombudsman’s Rules of Procedure refers to the affidavits and
supporting documents of "the complainant or supporting witnesses" in Section 4(a) of the
same Rule II.
Third, Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure provides that
"[t]he respondent shall have the right to examine the evidence submitted by the
complainant which he may not have been furnished and to copy them at his expense." A
respondent’s right to examine refers only to "the evidence submitted by the complainant."
Thus, whether under Rule 112 of the Revised Rules of Criminal Procedure or under Rule
II of the Ombudsman’s Rules of Procedure, there is no requirement whatsoever that the
affidavits executed by the corespondents should be furnished to a respondent. Justice
Velasco’s dissent relies on the ruling in Office of the Ombudsman v. Reyes (Reyes
case),15 an administrative case, in which a different set of rules of procedure and
standards apply. Sen. Estrada’s Petition, in contrast, involves the preliminary
investigation stage in a criminal case. Rule III on the Procedure in Administrative Cases
of the Rules of Procedure of the Office of the Ombudsman applies in the Reyes case,
while Rule II on the Procedure in Criminal Cases of the Rules of Procedure of the Office
of the Ombudsman applies in Sen. Estrada’s Petition. In both cases, the Rules of Court
apply in a suppletory character or by analogy. 16
In the Reyescase, the complainant Acero executed an affidavit against Reyes and
Peñaloza, who were both employees of the Land Transportation Office. Peñaloza
submitted his counter-affidavit, as well as those of his two witnesses. Reyes adopted his
counter-affidavit in another case before the Ombudsman as it involved the same parties
and the same incident. None of the parties appeared during the preliminary conference.
Peñaloza waived his right to a formal investigation and was willing to submit the case for
resolution based on the evidence on record. Peñaloza also submitted a counter-affidavit
of his third witness. The Ombudsman found Reyes guilty of grave misconduct and
dismissed him from the service. On the other hand, Peñaloza was found guilty of simple
misconduct and penalized with suspension from office without pay for six months. This
Court agreed with the Court of Appeals’ finding that Reyes’ right to due process was
indeed violated. This Court remanded the records of the case to the Ombudsman, for
two reasons: (1) Reyes should not have been meted the penalty of dismissal from the
service when the evidence was not substantial, and (2) there was disregard of Reyes’
right to due process because he was not furnished a copy of the counter-affidavits of
Peñaloza and of Peñaloza’s three witnesses. In the Reyes case, failure to furnish a copy
of the counter-affidavits happened in the administrative proceedings on the merits, which
resulted in Reyes’ dismissal from the service. In Sen. Estrada’s Petition, the denial of his
Request happened during the preliminary investigation where the only issue is the
existence of probable cause for the purpose of determining whether an information
should be filed, and does not prevent Sen. Estrada from requesting a copy of the
counter-affidavits of his co-respondents during the pre-trial or even during the trial.
We should remember to consider the differences in adjudicating cases, particularly an
administrative case and a criminal case:
Any lawyer worth his salt knows that quanta of proof and adjective rules vary depending
on whether the cases to which they are meant to apply are criminal, civil or
administrative in character. In criminal actions, proof beyond reasonable doubt is
required for conviction;in civil actions and proceedings, preponderance of evidence, as
support for a judgment; and in administrative cases, substantial evidence, as basis for
adjudication. In criminal and civil actions, application of the Rules of Court is called for,
with more or less strictness. In administrative proceedings, however, the technical rules
of pleadingand procedure, and of evidence, are not strictly adhered to; they generally
apply only suppletorily; indeed, in agrarian disputes application of the Rules of Court is
actually prohibited.17
It should be underscored that the conduct of a preliminary investigation is only for the
determination of probable cause, and "probable cause merely implies probability of guilt
and should be determined in a summary manner. A preliminary investigation is not a part
of the trial and it is only in a trial where an accused can demand the full exercise of his
rights, such as the right to confront and cross-examine his accusers to establish his
innocence."18 Thus, the rights of a respondent in a preliminary investigation are limited to
those granted by procedural law.
A preliminary investigation is defined as an inquiry or proceeding for the purpose of
determining whether there is sufficient ground to engender a well founded belief that a
crime cognizable by the Regional Trial Court has been committed and that the
respondent is probably guilty thereof, and should be held for trial. The quantum of
evidence now required in preliminary investigation is such evidence sufficient to
"engender a well founded belief" as tothe fact of the commission of a crime and the
respondent's probable guilt thereof. A preliminary investigation is not the occasion for the
full and exhaustive display of the parties’ evidence; it is for the presentation of such
evidence only as may engender a well-grounded belief that an offense has been
committed and that the accused is probably guilty thereof. We are in accord with the
state prosecutor’s findings in the case at bar that there exists prima facie evidence of
petitioner’s involvement in the commission of the crime, it being sufficiently supported by
the evidence presented and the facts obtaining therein.
Likewise devoid of cogency is petitioner’s argument that the testimonies of Galarion and
Hanopol are inadmissible as to him since he was not granted the opportunity of cross-
examination.
It is a fundamental principle that the accused in a preliminary investigation has no right to
cross-examine the witnesses which the complainant may present. Section 3, Rule 112 of
the Rules of Court expressly provides that the respondent shall only have the right to
submit a counter-affidavit, to examine all other evidence submitted by the complainant
and, where the fiscal sets a hearing to propound clarificatory questions to the parties or
their witnesses, to be afforded an opportunity to be present but without the right to
examine or cross-examine. Thus, even if petitioner was not given the opportunity to
cross-examine Galarion and Hanopol atthe time they were presented to testify during the
separate trial of the case against Galarion and Roxas, he cannot assert any legal right to
cross-examine them at the preliminary investigation precisely because such right was
never available to him. The admissibility or inadmissibility of said testimonies should be
ventilated before the trial court during the trial proper and not in the preliminary
investigation.
Furthermore, the technical rules on evidence are not binding on the fiscal who has
jurisdiction and control over the conduct of a preliminary investigation. If by its very
nature a preliminary investigation could be waived by the accused, we find no compelling
justification for a strict application of the evidentiary rules. In addition, considering that
under Section 8, Rule 112 of the Rules of Court, the record of the preliminary
investigation does not form part of the record of the case in the Regional Trial Court, then
the testimonies of Galarion and Hanopol may not be admitted by the trial court if not
presented in evidence by the prosecuting fiscal. And, even if the prosecution does
present such testimonies, petitioner can always object thereto and the trial court can rule
on the admissibility thereof; or the petitioner can, during the trial, petition said court to
compel the presentation of Galarion and Hanopol for purposes of cross-
examination.19 (Emphasis supplied)
Furthermore, in citing the Reyes case, Justice Velasco’s dissent overlooked a vital
portion of the Court of Appeals’ reasoning. This Court quoted from the Court of Appeals’
decision: "x x x [A]dmissions made by Peñaloza in his sworn statement are binding only
on him. Res inter alios act a alteri nocere non debet. The rights of a party cannot be
prejudiced by an act, declaration or omission of another." In OMB-C-C-13-0313 and
OMB-C-C-13-0397, the admissions of Sen. Estrada’s co-respondents can in no way
prejudice Sen. Estrada. Even granting Justice Velasco’s argument that the 28 March
2014 Joint Resolution in OMB-C-C-13-0313 and OMB-C-C-13-039720 mentioned the
testimonies of Sen. Estrada’s corespondents like Tuason and Cunanan, their testimonies
were merely corroborative of the testimonies of complainants’ witnesses Benhur Luy,
Marina Sula, and Merlina Suñas and were not mentioned in isolation from the
testimonies of complainants’ witnesses.
Moreover, the sufficiency of the evidence put forward by the Ombudsman against Sen.
Estrada to establish its finding of probable cause in the 28 March 2014 Joint Resolution
in OMB-C-C-13-0313 and OMB-CC-13-0397 was judicially confirmed by the
Sandiganbayan, when it examined the evidence, found probable cause, and issued a
warrant of arrest against Sen. Estrada on 23 June 2014.
We likewise take exception to Justice Brion’s assertion that "the due process standards
that at the very least should be considered in the conduct of a preliminary investigation
are those that this Court first articulated in Ang Tibay v. Court of Industrial Relations [Ang
Tibay]."21 Simply put, the Ang Tibay guidelines for administrative cases do not apply to
preliminary investigations in criminal cases. An application of the Ang Tibay guidelines to
preliminary investigations will have absurd and disastrous consequences.
Ang Tibay enumerated the constitutional requirements of due process, which Ang Tibay
described as the "fundamental and essential requirements of due process in trials and
investigations of an administrative character." 22 These requirements are "fundamental
and essential" because without these, there isno due process as mandated by the
Constitution. These "fundamental and essential requirements" cannot be taken away by
legislation because theyare part of constitutional due process. These "fundamental and
essential requirements" are:
(1) The first of these rights is the right to a hearing, which includes the right of the
party interested or affected to present his own case and submit evidence in
support thereof. x x x.
 (2) Not only must the party be given an opportunity to present his case and
adduce evidence tending to establish the rights which he asserts but the tribunal
must consider the evidence presented. x x x.
(3) "While the duty to deliberatedoes not impose the obligation to decide right, it
does imply a necessity which cannot be disregarded, namely, that of having
something to support its decision. A decision with absolutely nothing to support it
is a nullity, x x x."
(4) Not only must there be some evidence to support a finding or conclusion, but
the evidence must be "substantial." "Substantial evidence is more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." x x x.
(5) The decision must be rendered on the evidence presented at the hearing, or
at least contained in the record and disclosed to the parties affected. x x x.
(6) The Court of Industrial Relations or any of its judges, therefore, must act on
its or his own independent consideration of the law and facts of the controversy,
and not simply accept the views of a subordinate in arriving at a decision. x x x.
(7) The Court of Industrial Relations should, in all controversial questions, render
its decision in sucha manner that the parties to the proceeding can know the
various issues involved, and the reasons for the decisions rendered. The
performance of this duty is inseparable from the authority conferred upon it. 23
The guidelines set forth in Ang Tibay are further clarified in GSIS v. CA 24 (GSIS): "what
Ang Tibay failed to explicitly state was, prescinding from the general principles governing
due process, the requirement of an impartial tribunalwhich, needless to say, dictates that
one called upon to resolve a dispute may not sit as judge and jury simultaneously,
neither may he review his decision on appeal." 25 The GSIS clarification affirms the non
applicability of the Ang Tibay guidelines to preliminary investigations in criminal cases:
The investigating officer, which is the role that the Office of the Ombudsman plays in the
investigation and prosecution of government personnel, will never be the impartial
tribunal required in Ang Tibay, as amplified in GSIS. The purpose of the Office of the
Ombudsman in conducting a preliminary investigation, after conducting its own
factfinding investigation, is to determine probable cause for filing an information, and not
to make a final adjudication of the rights and obligations of the parties under the law,
which is the purpose of the guidelines in Ang Tibay. The investigating officer
investigates, determines probable cause, and prosecutes the criminal case after filing the
corresponding information.
The purpose in determining probable cause is to make sure that the courts are not
clogged with weak cases that will only be dismissed, as well as to spare a person from
the travails of a needless prosecution.26 The Ombudsman and the prosecution service
under the control and supervision of the Secretary of the Department of Justice are
inherently the fact-finder, investigator, hearing officer, judge and jury of the respondent in
preliminary investigations. Obviously, this procedure cannot comply with Ang Tibay, as
amplified in GSIS. However, there is nothing unconstitutional with this procedure
because this is merely an Executive function, a part of the law enforcement process
leading to trial in court where the requirements mandated in Ang Tibay, as amplified in
GSIS, will apply. This has been the procedure under the 1935, 1973 and 1987
Constitutions. To now rule that Ang Tibay, as amplified in GSIS, should apply to
preliminary investigations will mean that all past and present preliminary investigations
are in gross violation of constitutional due process.
Moreover, a person under preliminary investigation, as Sen. Estrada is in the present
case when he filed his Request, is not yet an accused person, and hence cannot
demand the full exercise of the rights of an accused person:
A finding of probable cause needs only to rest on evidence showing that more likely than
not a crime has been committed and was committed by the suspects. Probable cause
need not be based on clear and convincing evidence of guilt, neither on evidence
establishing guilt beyond reasonable doubt and definitely, not on evidence establishing
absolute certainty of guilt. As well put in Brinegar v. United States, while probable cause
demands more than "bare suspicion," it requires "less than evidence which would justify .
. . conviction." A finding of probable cause merely binds over the suspect to stand trial. It
is not a pronouncement of guilt.
Considering the low quantum and quality of evidence needed to support a finding of
probable cause, wealso hold that the DOJ Panel did not gravely abuse its discretion in
refusing to call the NBI witnesses for clarificatory questions. The decision to call
witnesses for clarificatory questions is addressed to the sound discretion of the
investigator and the investigator alone. If the evidence on hand already yields a probable
cause, the investigator need not hold a clarificatory hearing. To repeat, probable cause
merely implies probability of guilt and should be determined in a summary manner.
Preliminary investigation is not a part of trial and it is only in a trial where an accused can
demand the full exercise of his rights, such as the right to confront and cross-examine his
accusers to establish his innocence. In the case at bar, the DOJ Panel correctly
adjudged that enough evidence had been adduced to establish probable cause and
clarificatory hearing was unnecessary.27
Justice J.B.L. Reyes, writing for the Court, emphatically declared in Lozada v.
Hernandez,28 that the "rights conferred upon accused persons to participate in preliminary
investigations concerning themselves depend upon the provisions of law by which such
rights are specifically secured, rather than upon the phrase ‘due process of law’." This
reiterates Justice Jose P. Laurel’s oft-quoted pronouncement in Hashim v. Boncan29 that
"the right to a preliminary investigation is statutory, not constitutional." In short, the rights
of a respondent ina preliminary investigation are merely statutory rights, not
constitutional due process rights. An investigation to determine probable cause for the
filing of an information does not initiate a criminal action so as to trigger into operation
Section 14(2), Article III of the Constitution. 30 It is the filing of a complaint or information in
court that initiates a criminal action.31
The rights to due process in administrative cases as prescribed in Ang Tibay,as amplified
in GSIS, are granted by the Constitution; hence, these rights cannot be taken away by
merelegislation. On the other hand, as repeatedly reiterated by this Court, the right to a
preliminary investigation is merely a statutory right, 32 not part of the "fundamental and
essential requirements" of due process as prescribed in Ang Tibay and amplified in
GSIS. Thus, a preliminary investigation can be taken away by legislation. The
constitutional right of an accused to confront the witnesses against him does not apply in
preliminary investigations; nor will the absence of a preliminary investigation be an
infringement of his right to confront the witnesses against him. 33 A preliminary
investigation may be done away with entirely without infringing the constitutional right of
an accused under the due process clause to a fair trial. 34
The quantum of evidence needed in Ang Tibay, as amplified in GSIS, is greater than the
evidenceneeded in a preliminary investigation to establish probable cause, or to
establish the existence of a prima facie case that would warrant the prosecution of a
case. Ang Tibay refers to "substantial evidence," while the establishment of probable
cause needs "only more than ‘bare suspicion,’ or ‘less than evidence which would justify
. . . conviction’." In the United States, from where we borrowed the concept of probable
cause,35 the prevailing definition of probable cause is this:
In dealing with probable cause, however, as the very name implies, we deal with
probabilities.These are not technical; they are the factual and practical considerations of
everyday life on which reasonable and prudent men, not legal technicians, act. The
standard of proof is accordingly correlative to what must be proved.
"The substance of all the definitions" of probable cause "is a reasonable ground for belief
of guilt." McCarthy v. De Armit, 99 Pa. St. 63, 69, quoted with approval in the Carroll
opinion. 267 U. S. at 161. And this "means less than evidence which would justify
condemnation" or conviction, as Marshall, C. J., said for the Court more than a century
ago in Locke v. United States, 7 Cranch 339, 348. Since Marshall’s time, at any rate, it
has come to mean more than bare suspicion: Probable cause exists where "the facts
and circumstances within their [the officers’] knowledge and of which they had
reasonably trustworthy information [are] sufficient in themselves to warrant a man of
reasonable caution in the belief that" an offense has been or is being committed. Carroll
v. United States, 267 U. S. 132, 162.
These long-prevailing standards seek to safeguard citizens from rash and unreasonable
interferences with privacy and from unfounded charges of crime. They also seek to give
fair leeway for enforcing the law in the community’s protection. Because many situations
which confront officers in the course of executing their duties are more or less
ambiguous, room must be allowed for some mistakes on their part. But the mistakes
must be those of reasonable men, acting on facts leading sensibly to their conclusions of
probability. The rule of probable cause is a practical, non technical conception affording
the best compromise that has been found for accommodating these often opposing
interests. Requiring more would unduly hamper law enforcement. To allow less would be
to leave law-abiding citizens at the mercy of the officers’ whim or caprice.36
In the Philippines, there are four instances in the Revised Rules of Criminal Procedure
where probable cause is needed to be established:
(1) In Sections 1 and 3 of Rule 112: By the investigating officer, to determine
whether there is sufficient ground to engender a well-founded belief that a crime
has been committed and the respondent is probably guilty thereof, and should be
held for trial. A preliminary investigation is required before the filing of a
complaint or information for an offense where the penalty prescribed by law is at
least four years, two months and one day without regard to the fine;
(2) In Sections 6 and 9 of Rule 112: By the judge, to determine whether a warrant
of arrest or a commitment order, if the accused has already been arrested, shall
be issued and that there is a necessity of placing the respondent under
immediate custody in order not to frustrate the ends of justice;
(3) In Section 5(b) of Rule 113: By a peace officer or a private person making a
warrantless arrest when an offense has just been committed, and he has
probable cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and
(4) In Section 4 of Rule 126: By the judge, to determine whether a search warrant
shall be issued, and only upon probable cause in connection with one specific
offense to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the things to be seized which
may be anywhere in the Philippines.
In all these instances, the evidence necessary to establish probable cause is based only
on the likelihood, or probability, of guilt. Justice Brion, in the recent case of Unilever
Philippines, Inc. v. Tan37 (Unilever), stated:
The determination of probable cause needs only to rest on evidence showing that more
likely than not, a crime has been committed and there is enough reason to believe that it
was committed by the accused. It need not be based on clear and convincing evidence
of guilt, neither on evidence establishing absolute certainty of guilt. What is merely
required is "probability of guilt." Its determination, too, does not call for the application of
rules or standards of proof that a judgment of conviction requires after trial on the merits.
Thus, in concluding that there is probable cause, it suffices that it is believed that the act
or omission complained of constitutes the very offense charged.
It is also important to stress that the determination of probable cause does not depend
on the validity or merits of a party’s accusation or defense or on the admissibility or
veracity of testimonies presented. As previously discussed, these matters are better
ventilated during the trial proper of the case. As held in Metropolitan Bank & Trust
Company v. Gonzales:
Probable cause has been defined as the existence of such facts and circumstances as
would excite the belief in a reasonable mind, acting on the facts within the knowledge of
the prosecutor, that the person charged was guilty of the crime for which he was
prosecuted. x x x. The term does not mean "actual or positive cause" nor does it import
absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding of
probable cause does not require an inquiry into whether there is sufficient evidence to
procure a conviction. It is enough that it is believed that the act or omission complained
of constitutes the offense charged. Precisely, there is a trial for the reception of evidence
of the prosecution in support of the charge. (Bold facing and italicization supplied)
Justice Brion’s pronouncement in Unilever that "the determination of probable cause
does not depend on the validity or merits of a party’s accusation or defense or on the
admissibility or veracity of testimonies presented" correctly recognizes the doctrine in the
United States that the determination of probable cause can rest partially, or even entirely,
on hearsay evidence, as long as the person making the hearsay statement is credible. In
United States v. Ventresca,38 the United States Supreme Court held:
While a warrant may issue only upon a finding of "probable cause," this Court has long
held that "the term ‘probable cause’ . . . means less than evidence which would justify
condemnation," Locke v. United States, 7 Cranch 339, 11 U.S. 348, and that a finding of
"probable cause" may rest upon evidence which is not legally competent in a criminal
trial. Draper v. United States, 358 U.S. 307, 358 U.S. 311. As the Court stated in
Brinegar v. United States, 338 U.S. 160, 173, "There is a large difference between the
two things tobe proved (guilt and probable cause), as well as between the tribunals
which determine them, and therefore a like difference in the quanta and modes of proof
required to establish them." Thus, hearsay may be the basis for issuance of the warrant
"so long as there . . . [is] a substantial basis for crediting the hearsay." Jones v. United
States, supra, at 362 U.S. 272. And, in Aguilar, we recognized that "an affidavit may be
based on hearsay information and need not reflect the direct personal observations of
the affiant," so long as the magistrate is "informed of some of the underlying
circumstances" supporting the affiant’s conclusions and his belief that any informant
involved "whose identity need not be disclosed . . ." was "credible" or his information
"reliable." Aguilar v. Texas, supra, at 378 U.S. 114. (Emphasis supplied)
Thus, probable cause can be established with hearsay evidence, as long as there is
substantial basis for crediting the hearsay. Hearsay evidence is admissible in
determining probable cause in a preliminary investigation because such investigation is
merely preliminary, and does not finally adjudicate rights and obligations of parties.
However, in administrative cases, where rights and obligations are finally adjudicated,
what is required is "substantial evidence" which cannot rest entirely or even partially on
hearsay evidence. Substantial basis is not the same as substantial evidence because
substantial evidence excludes hearsay evidence while substantial basis can include
hearsay evidence. To require the application of Ang Tibay, as amplified in GSIS, in
preliminary investigations will change the quantum of evidence required in determining
probable cause from evidence of likelihood or probability of guilt to substantial evidence
of guilt.
It is, moreover, necessary to distinguish between the constitutionally guaranteed rights of
an accused and the right to a preliminary investigation. To treat them the same will lead
toabsurd and disastrous consequences.
All pending criminal cases in all courts throughout the country will have to be remanded
to the preliminary investigation level because none of these will satisfy Ang Tibay, as
amplified in GSIS. Preliminary investigations are conducted by prosecutors, who are the
same officials who will determine probable cause and prosecute the cases in court. The
prosecutor is hardly the impartial tribunal contemplated in Ang Tibay, as amplified in
GSIS. A reinvestigation by an investigating officer outside of the prosecution service will
be necessary if Ang Tibay, as amplified in GSIS, were to be applied. This will require a
new legislation. In the meantime, all pending criminal cases in all courts will have to be
remanded for reinvestigation, to proceed only when a new law is in place. To require Ang
Tibay, as amplified in GSIS, to apply to preliminary investigation will necessarily change
the concept of preliminary investigation as we know it now. Applying the constitutional
due process in Ang Tibay, as amplified in GSIS, to preliminary investigation will
necessarily require the application of the rights of an accused in Section 14(2), Article III
of the 1987 Constitution. This means that the respondent can demand an actual hearing
and the right to cross-examine the witnesses against him, rights which are not afforded
at present toa respondent in a preliminary investigation.
The application of Ang Tibay, as amplified in GSIS, is not limited to those with pending
preliminary investigations but even to those convicted by final judgment and already
serving their sentences. The rule is well-settled that a judicial decision applies
retroactively if it has a beneficial effect on a person convicted by final judgment even if he
is already serving his sentence, provided that he is not a habitual criminal. 39 This Court
retains its control over a case "until the full satisfaction of the final judgment conformably
with established legal processes."40 Applying Ang Tibay, as amplified in GSIS, to
preliminary investigations will result in thousands of prisoners, convicted by final
judgment, being set free from prison.
Second. Sen. Estrada’s present Petition for Certiorari is premature.
Justice Velasco’s dissent prefers thatSen. Estrada not "be subjected to the rigors of a
criminal prosecution incourt" because there is "a pending question regarding the
Ombudsman’s grave abuse of its discretion preceding the finding of a probable cause to
indict him." Restated bluntly, Justice Velasco’s dissent would like this Court to conclude
that the mere filing of the present Petition for Certiorari questioning the Ombudsman’s
denial of Sen. Estrada’s Request should have, by itself, voided all proceedings related to
the present case.
Although it is true that, in its 27 March 2014 Order, the Ombudsman denied Sen.
Estrada’s Request, the Ombudsman subsequently reconsidered its Order. On 7 May
2014, the same date that Sen. Estrada filed the present Petition, the Ombudsman issued
a Joint Order in OMB-C-C-13-0313 and OMB-C-C-13-0397 that furnishedSen. Estrada
with the counter-affidavits of Ruby Tuason, Dennis Cunanan, Gondelina Amata, Mario
Relampagos, Francisco Figura, Gregoria Buenaventura, and AlexisSevidal, and directed
him to comment within a non-extendible period of five days from receipt of said Order.
Sen. Estrada did not file any comment, as noted in the 4 June 2014 Joint Order of the
Ombudsman.
On 4 June 2014, the Ombudsman issued another Joint Order and denied Sen. Estrada’s
Motion for Reconsideration ofits 28 March 2014 Joint Resolution which found probable
cause toindict Sen. Estrada and his corespondents with one count of plunder and 11
counts of violation of Section 3(e), Republic Act No. 3019. In this 4 June 2014 Joint
Order, the Ombudsman stated that "[t]his Office, in fact, held in abeyance the disposition
of motions for reconsideration in this proceeding in light of its grant to Senator Estrada a
period of five days from receipt of the 7 May 2014 Order to formally respond to the
above-named respondents’ claims."
We underscore Sen. Estrada’s procedural omission. Sen. Estrada did not file any
pleading, much less a motion for reconsideration, to the 27 March 2014 Order inOMB-C-
C-13-0313. Sen. Estrada immediately proceeded to file this Petition for Certiorari before
this Court. Sen. Estrada’s resort to a petitionfor certiorari before this Court stands in stark
contrast to his filing of his 7 April 2014 Motion for Reconsideration of the 28 March 2014
Joint Resolution finding probable cause. The present Petition for Certiorari is premature.
A motion for reconsideration allows the public respondent an opportunity to correct its
factual and legal errors. Sen. Estrada, however, failed to present a compelling reason
that the present Petition falls under the exceptions 41 to the general rule that the filing of a
motion for reconsideration is required prior to the filing of a petition for certiorari. This
Court has reiterated in numerous decisions that a motion for reconsideration is
mandatory before the filing of a petition for certiorari.42
Justice Velasco’s dissent faults the majority for their refusal to apply the Reyes case to
the present Petition. Justice Velasco’s dissent insists that "this Court cannot neglect to
emphasize that, despite the variance in the quanta of evidence required, a uniform
observance of the singular concept of due process is indispensable in all proceedings."
As we try to follow Justice Velasco’s insistence, we direct Justice Velasco and those who
join him in his dissent to this Court’s ruling in Ruivivar v. Office of the Ombudsman
(Ruivivar),43 wherein we stated that "[t]he law can no longer help one who had been given
ample opportunity to be heard but who did not take full advantage of the proffered
chance."
The Ruivivar case, like the Reyes44 case, was also an administrative case before the
Ombudsman. The Ombudsman found petitioner Rachel Beatriz Ruivivar administratively
liable for discourtesy in the course of her official functions and imposed on her the
penalty of reprimand. Petitioner filed a motion for reconsideration of the decision on the
ground that she was not furnished copies of the affidavits of the private respondent’s
witnesses. The Ombudsman subsequently ordered that petitioner be furnished with
copies of the counter-affidavits of private respondent’s witnesses, and that petitioner
should "file, within ten (10) days from receipt of this Order, such pleading which she may
deem fit under the circumstances." Petitioner received copies of the affidavits, and
simply filed a manifestation where she maintained that her receipt of the affidavits did not
alter the deprivation of her right to due process or cure the irregularity in the
Ombudsman’s decision to penalize her.
In Ruivivar, petitioner received the affidavits of the private respondent’s witnesses
afterthe Ombudsman rendered a decision against her. We disposed of petitioner’s
deprivation of due process claim in this manner:
The CA Decision dismissed the petition for certiorari on the ground that the petitioner
failed to exhaust all the administrative remedies available to her before the Ombudsman.
This ruling is legallycorrect as exhaustion of administrative remedies is a requisite for the
filing of a petition for certiorari. Other than this legal significance, however, the ruling
necessarily carries the direct and immediate implication that the petitioner has been
granted the opportunity to be heard and has refused to avail of this opportunity; hence,
she cannot claim denial of due process. In the words of the CA ruling itself: "Petitioner
was given the opportunity by public respondent to rebut the affidavits submitted by
private respondent. . . and had a speedy and adequate administrative remedy but she
failed to avail thereof for reasons only known to her."
For a fuller appreciation of our above conclusion, we clarify that although they are
separate and distinct concepts, exhaustion of administrative remedies and due process
embody linked and related principles. The "exhaustion" principle applies when the ruling
court or tribunal is not given the opportunity tore-examine its findings and conclusions
because of an available opportunity that a party seeking recourse against the court or the
tribunal’s ruling omitted to take. Under the concept of "due process," on the other hand, a
violation occurs when a court or tribunal rules against a party without giving him orher the
opportunity to be heard. Thus, the exhaustion principle is based on the perspective of the
ruling court or tribunal, while due process is considered from the point of view of the
litigating party against whom a ruling was made. The commonality they share is in the
same"opportunity" that underlies both. In the context of the present case, the available
opportunity to consider and appreciate the petitioner’s counter-statement offacts was
denied the Ombudsman; hence, the petitioner is barred from seeking recourse at the CA
because the ground she would invoke was not considered at all at the Ombudsman
level. At the same time, the petitioner – who had the same opportunity to rebut the
belatedly-furnished affidavits of the private respondent’s witnesses – was not denied and
cannot now claim denial of due process because she did not take advantage of the
opportunity opened to her at the Ombudsman level.
The records show that the petitioner duly filed a motion for reconsideration on due
process grounds (i.e., for the private respondent’s failure to furnish her copies of the
affidavits of witnesses) and on questions relating to the appreciation of the evidence on
record. The Ombudsman acted on this motion by issuing its Order of January 17, 2003
belatedly furnishing her with copies of the private respondent’s witnesses, together with
the "directive to file, within ten (10) days from receipt of this Order, such pleading which
she may deem fit under the circumstances."
Given this opportunity to act on the belatedly-furnished affidavits, the petitioner simply
chose to file a "Manifestation" where she took the position that "The order of the
Ombudsman dated 17 January 2003 supplying her with the affidavits of the complainant
does not cure the 04 November 2002 order," and on this basis prayed that the
Ombudsman’s decision "be reconsidered and the complaint dismissed for lack of merit."
For her part, the private respondent filed a Comment/Opposition to Motion for
Reconsideration dated 27 January 2003 and prayed for the denial of the petitioner’s
motion.
In the February 12, 2003 Order, the Ombudsman denied the petitioner’s motion for
reconsideration after finding no basis to alter or modify its ruling. Significantly, the
Ombudsman fully discussed in this Order the due process significance of the petitioner’s
failure to adequately respond to the belatedly-furnished affidavits. The Ombudsman said:
"Undoubtedly, the respondent herein has been furnished by this Office with copies of the
affidavits, which she claims she has not received. Furthermore, the respondent has been
given the opportunity to present her side relative thereto, however, she chose not to
submit countervailing evidence orargument. The respondent, therefore (sic), cannot
claim denial of due process for purposes of assailing the Decision issued in the present
case. On this score, the Supreme Court held in the case of People v. Acot, 232 SCRA
406, that "a party cannot feign denial of due process where he had the opportunity to
present his side". This becomes all the more important since, as correctly pointed out by
the complainant, the decision issued in the present case is deemed final and
unappealable pursuant to Section 27 of Republic Act 6770, and Section 7, Rule III of
Administrative Order No. 07. Despite the clear provisions of the law and the rules, the
respondent herein was given the opportunity not normally accorded, to present her side,
but she opted not to do so which is evidently fatal to her cause." [emphasis supplied].
Under these circumstances, we cannot help but recognize that the petitioner’s cause is a
lost one, not only for her failure to exhaust her available administrative remedy, but also
on due process grounds. The law can no longer help one who had been given ample
opportunity to be heard but who did not take full advantage of the proffered chance. 45
Ruivivar applies with even greater force to the present Petition because here the
affidavits of Sen. Estrada’s co-respondents were furnished to him beforethe Ombudsman
rendered her 4 June 2014 Joint Order. In Ruivivar, the affidavits were furnished after the
Ombudsman issued a decision.
Justice Velasco’s dissent cites the cases of Tatad v. Sandiganbayan46 (Tatad) and
Duterte v. Sandiganbayan47 (Duterte) in an attempt to prop up its stand. A careful reading
of these cases, however, would show that they do not stand on all fours with the present
case. In Tatad, this Court ruled that "the inordinate delay in terminating the preliminary
investigation and filing the information [by the Tanodbayan] in the present case is
violative of the constitutionally guaranteed right of the petitioner to due process and to a
speedy disposition of the cases against him." 48 The Tanod bayan took almost three years
to terminate the preliminary investigation, despite Presidential Decree No. 911’s
prescription of a ten-day period for the prosecutor to resolve a case under preliminary
investigation. We ruled similarly in Duterte, where the petitioners were merely asked to
comment and were not asked to file counter-affidavits as isthe proper procedure in a
preliminary investigation. Moreover, in Duterte, the Ombudsman took four years to
terminate its preliminary investigation.
As we follow the reasoning in Justice Velasco’s dissent, it becomes more apparent that
Sen. Estrada’s present Petition for Certiorari is premature for lack of filing of a motion for
reconsideration before the Ombudsman. When the Ombudsman gave Sen. Estrada
copies of the counter-affidavits and even waited for the lapse of the given period for the
filing of his comment, Sen. Estrada failed to avail of the opportunity to be heard due to
his own fault. Thus, Sen. Estrada’s failure cannot in any way be construed as violation of
due process by the Ombudsman, much less of grave abuse of discretion. Sen. Estrada
has not filed any comment, and still chooses not to.
Third. Sen. Estrada’s present Petition for Certiorari constitutes forum shopping and
should be summarily dismissed.
In his verification and certification of non-forum shopping in the present petition filed on 7
May 2014, Sen. Estrada stated:
3.1 I, however, disclose that I have filed a Motion for Reconsideration dated 07 April
2014 in OMB-C-C-13-0313 and OMB-CC-13-0397, raising as sole issuethe finding of
probable cause in the Joint Resolution dated 28 March 2014.
Such Motion for Reconsideration has yet to be resolved by the Office of the
Ombudsman.49 (Emphasis supplied)
Sen. Estrada’s Motion for Reconsideration of the 28 March 2014 Joint Resolution prayed
that the Ombudsman reconsider and issue a new resolution dismissing the charges
against him. However, in this Motion for Reconsideration, Sen. Estrada assailed the
Ombudsman’s 27 March 2014 Joint Order denying his Request, and that such denial is a
violation of his right to due process.
8. It is respectfully submitted that the Ombudsman violated the foregoing rule [Rule 112,
Section 4 of the Rules of Court] and principles. A reading of the Joint Resolution will
reveal that various pieces of evidence which Senator Estrada was not furnished with –
hence, depriving him of the opportunity to controvert the same – were heavily considered
by the Ombudsman in finding probable cause to charge him with Plunder and with
violations of Section 3(e) of R.A. No. 3019.
xxxx
11. Notably, under dated 20 March 2014, Senator Estrada filed a "Request to be
Furnished with Copies of Counter-Affidavits of the Other Respondents, Affidavits of New
Witnesses and Other Filings," pursuant to the right of a respondent "to examine the
evidence submitted by the complainant which he may not have been furnished" (Section
3[b], Rule 112 of the Rules of Court), and to "have access to the evidence on record"
(Section 4[c], Rule II of the Rules of Procedure of the Office of the Ombudsman).
However, notwithstanding the gravity of the offenses leveled against Senator Estrada
and the law’s vigilance in protecting the rights of an accused, the Special Panel of
Investigators, in an Order dated 27 March 2014, unceremoniously denied the request on
the ground that "there is no provision under this Office’s Rules of Procedure which
entitles respondent to be furnished all the filings by the other parties x x x x." (Order
dated 27 March 2013, p. 3)
As such, Senator Estrada was not properly apprised of the evidence offered against him,
which were eventually made the bases of the Ombudsman’s finding of probable cause. 50
The Ombudsman denied Sen. Estrada’s Motion for Reconsideration in its 4 June 2014
Joint Order. Clearly, Sen. Estrada expressly raised in his Motion for Reconsideration with
the Ombudsman the violation of his right to due process, the same issue he is raising in
this petition. In the verification and certification of non-forum shopping attached to his
petition docketed as G.R. Nos. 212761-62 filed on 23 June 2014, Sen. Estrada disclosed
the pendency of the present petition, as well as those before the Sandiganbayan for the
determination of the existence of probable cause. In his petition in G.R. Nos. 212761-62,
Sen. Estrada again mentioned the Ombudsman’s 27 March 2014 Joint Order denying his
Request.
17. Sen. Estrada was shocked not only at the Office of the Ombudsman’s finding of
probable cause, which he maintains is without legal or factual basis, but also thatsuch
finding of probable cause was premised on evidence not disclosed tohim, including those
subject of his Request to be Furnished with Copiesof Counter-Affidavits of the Other
Respondents, Affidavits of New Witnesses and Other Filings dated 20 March 2014.
In particular, the Office of the Ombudsman used as basis for the Joint Resolution the
following documents –
i. Alexis G. Sevidal’s Counter-Affidavits dated 15 January and 24 February 2014;
ii. Dennis L. Cunanan’s Counter-Affidavits both dated 20 February 2014;
iii. Francisco B. Figura’s Counter-Affidavit dated 08 January 2014;
iv. Ruby Tuason’s Counter-Affidavits both dated 21 February 2014;
v. Gregoria G. Buenaventura’s Counter-Affidavit dated 06 March 2014; and
vi. Philippine Daily Inquirer Online Edition news article entitled "Benhur Luy
upstages Napoles in Senate Hearing" by Norman Bordadora and TJ Borgonio,
published on 06 March 2014, none of which were ever furnished Sen. Estrada
prior to the issuance of the challenged Joint Resolution, despite written request.
xxxx
 II
THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED JOINT
RESOLUTION DATED 28 MARCH 2014 AND CHALLENGED JOINT ORDER DATED
04 JUNE 2014, NOT ONLY ACTED WITHOUT OR IN EXCESS OF ITS JURISDICTION
OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION, BUT ALSO VIOLATED SEN. ESTRADA’S CONSTITUTIONAL RIGHT
TO DUE PROCESS OF LAW AND TO EQUAL PROTECTION OF THE LAWS.
xxxx
2.17 x x x x
Notably, in its Joint Order dated 07 May 2014, the Office of the Ombudsman even
arbitrarily limited the filing of Sen. Estrada’s comment to the voluminous documents
comprisingthe documents it furnished Sen. Estrada to a "non-extendible" period offive (5)
days, making it virtually impossible for Sen. Estrada to adequately study the charges
leveled against him and intelligently respond to them. The Joint Order also failed to
disclose the existence of other counter-affidavits and failed to furnish Sen. Estrada
copies of such counter-affidavits.51
Sen. Estrada has not been candid with this Court. His claim that the finding of probable
cause was the "sole issue" he raised before the Ombudsman in his Motion for
Reconsideration dated 7 April 2014 is obviously false.
Moreover, even though Sen. Estrada acknowledged his receipt of the Ombudsman’s 4
June 2014 Joint Order which denied his motion for reconsideration of the 28 March 2014
Joint Resolution, Sen. Estrada did not mention that the 4 June 2014 Joint Order stated
that the Ombudsman "held in abeyance the disposition of the motions for reconsideration
in this proceeding in light of its grant to [Sen. Estrada] a period of five days from receipt
of the 7 May 2014 [Joint] Order to formally respond to the abovenamed co-respondent’s
claims."
Sen. Estrada claims that his rights were violated but he flouts the rules himself.
The rule against forum shopping is not limited tothe fulfillment of the requisites of litis
pendentia.52 To determine whether a party violated the rule against forum shopping, the
most important factor to ask is whether the elements of litis pendentia are present, or
whether a final judgment in one case will amount to res judicatain another. 53 Undergirding
the principle of litis pendentia is the theory that a party isnot allowed to vex another more
than once regarding the same subject matter and for the same cause of action. This
theory is founded on the public policy that the same matter should not be the subject of
controversy in court more than once in order that possible conflicting judgments may be
avoided, for the sake of the stability in the rights and status of persons. 54
x x x [D]espite the fact that what the petitioners filed wasa petition for certiorari, a
recourse that – in the usual course and because of its nature and purpose – is not
covered by the rule on forum shopping. The exception from the forum shopping rule,
however, is true only where a petition for certiorari is properly or regularly invoked in the
usual course; the exception does not apply when the relief sought, through a petition for
certiorari, is still pending with or has as yet to be decided by the respondent court,
tribunal or body exercising judicial or quasi-judicial body, e.g., a motion for
reconsideration of the order assailed via a petition for certiorari under Rule 65, as in the
present case. This conclusion is supported and strengthened by Section 1, Rule 65 of
the Revised Rules of Court which provides that the availability of a remedy in the
ordinary course of law precludes the filing of a petition for certiorari; under this rule, the
petition’s dismissal is the necessary consequence if recourse to Rule 65 is prematurely
taken.
To be sure, the simultaneous remedies the petitioners sought could result in possible
conflicting rulings, or at the very least, to complicated situations, between the RTC and
the Court of Appeals. An extreme possible result is for the appellate court to confirm that
the RTC decision is meritorious, yet the RTC may at the same time reconsider its ruling
and recall its order of dismissal. In this eventuality, the result is the affirmation of the
decision that the court a quo has backtracked on. Other permutations depending on the
rulings of the two courts and the timing of these rulings are possible. In every case, our
justice system suffers as this kind of sharp practice opens the system to the possibility of
manipulation; to uncertainties when conflict of rulings arise; and at least to vexation for
complications other than conflict of rulings. Thus, it matters not that ultimately the Court
of Appeals may completely agree with the RTC; what the rule on forum shopping
addresses are the possibility and the actuality of its harmful effects on our judicial
system.55
Sen. Estrada resorted to simultaneous remedies by filing this Petition alleging violation of
due process by the Ombudsman even as his Motion for Reconsideration raising the very
same issue remained pending with the Ombudsman. This is plain and simple forum
shopping, warranting outright dismissal of this Petition.
SUMMARY
The Ombudsman, in furnishing Sen. Estrada a copy of the complaint and its supporting
affidavits and documents, fully complied with Sections 3 and 4 of Rule 112 of the
Revised Rules of Criminal Procedure, and Section 4, Rule II of the Rules of Procedure of
the Office of the Ombudsman, Administrative Order No. 7. Both the Revised Rules of
Criminal Procedure and the Rules of Procedure of the Office of the Ombudsman require
the investigating officer to furnish the respondent with copies of the affidavits of the
complainant and affidavits of his supporting witnesses. Neither of these Rules require the
investigating officer to furnish the respondent with copies of the affidavits of his co-
respondents. The right of the respondent is only "to examine the evidence submitted by
the complainant," as expressly stated in Section 3(b), Rule 112 of the Revised Rules of
Criminal Procedure. This Court has unequivocally ruled in Paderanga that "Section 3,
Rule 112 of the Revised Rules of Criminal Procedure expressly provides that the
respondent shall only have the right to submit a counter-affidavit, to examine all other
evidence submitted by the complainant and, where the fiscal sets a hearing to propound
clarificatory questions to the parties or their witnesses, to be afforded an opportunity to
be present but without the right to examine or cross-examine." Moreover, Section 4 (a, b
and c) of Rule II of the Ombudsman’s Rule of Procedure, read together, only require the
investigating officer to furnish the respondent with copies of the affidavits of the
complainant and his supporting witnesses. There is no law or rule requiring the
1âwphi1
investigating officer to furnish the respondent with copies of the affidavits of his co-
respondents.
In the 7 May 2014 Joint Order, the Ombudsman went beyond legal duty and even
furnished Sen. Estrada with copies of the counter-affidavits of his co-respondents whom
he specifically named, as well as the counteraffidavits of some of other co-respondents.
In the 4 June 2014 Joint Order, the Ombudsman even held in abeyancethe disposition of
the motions for reconsideration because the Ombudsman granted Sen. Estrada five days
from receipt of the 7 May 2014 Joint Order to formally respond to the claims made by his
co-respondents. The Ombudsman faithfully complied with the existing Rules on
preliminary investigation and even accommodated Sen. Estrada beyond what the Rules
required. Thus, the Ombudsman could not be faulted with grave abuse of discretion.
Since this is a Petition for Certiorari under Rule 65, the Petition fails in the absence of
grave abuse of discretion on the part of the Ombudsman.
The constitutional due process requirements mandated in Ang Tibay, as amplified in
GSIS, are not applicable to preliminary investigations which are creations of statutory law
giving rise to mere statutory rights. A law can abolish preliminary investigations without
running afoul with the constitutional requirements of dueprocess as prescribed in Ang
Tibay, as amplified in GSIS. The present procedures for preliminary investigations do not
comply, and were never intended to comply, with Ang Tibay, as amplified in GSIS.
Preliminary investigations do not adjudicate with finality rights and obligations of parties,
while administrative investigations governed by Ang Tibay, as amplified in GSIS, so
adjudicate. Ang Tibay,as amplified in GSIS, requires substantial evidencefor a decision
against the respondent in the administrative case.In preliminary investigations, only
likelihood or probability of guiltis required. To apply Ang Tibay,as amplified in GSIS,to
preliminary investigations will change the quantum of evidence required to establish
probable cause. The respondent in an administrative case governed by Ang Tibay,as
amplified in GSIS,has the right to an actual hearing and to cross-examine the witnesses
against him. In preliminary investigations, the respondent has no such rights.
Also, in an administrative case governed by Ang Tibay, as amplified in GSIS, the hearing
officer must be impartial and cannot be the fact-finder, investigator, and hearing officer
atthe same time. In preliminary investigations, the same public officer may be the
investigator and hearing officer at the same time, or the fact-finder, investigator and
hearing officer may be under the control and supervisionof the same public officer, like
the Ombudsman or Secretary of Justice. This explains why Ang Tibay, as amplified in
GSIS, does not apply to preliminary investigations. To now declare that the guidelines in
Ang Tibay, as amplified in GSIS, are fundamental and essential requirements in
preliminary investigations will render all past and present preliminary investigations
invalid for violation of constitutional due process. This will mean remanding for
reinvestigation all criminal cases now pending in all courts throughout the country. No
preliminary investigation can proceeduntil a new law designates a public officer, outside
of the prosecution service, to determine probable cause. Moreover, those serving
sentences by final judgment would have to be released from prison because their
conviction violated constitutional due process. Sen. Estrada did not file a Motion for
Reconsideration of the 27 March 2014 Order in OMB-C-C-13-0313 denying his Request,
which is the subject of the present Petition. He should have filed a Motion for R
econsideration, in the same manner that he filed a Motion for Reconsideration of the 15
May 2014 Order denying his motion to suspend proceedings. The unquestioned rule in
this jurisdiction is that certiorari will lie only if there is no appeal or any other plain,
speedy and adequate remedy in the ordinary course of law against the acts of the public
respondent.56 The plain, speedy and adequate remedy expressly provided by law is a
Motion for Reconsideration of the 27 March 2014 Order of the Ombudsman. Sen.
Estrada's failure to file a Motion for Reconsideration renders this Petition premature.
Sen. Estrada also raised in this Petition the same issue he raised in his Motion for
Reconsideration of the 28 March 2014 Joint Resolution of the Ombudsman finding
probable cause. While his Motion for Reconsideration of the 28 March 2014 Joint
Resolution was pending, Sen. Estrada did not wait for the resolution of the Ombudsman
and instead proceeded to file the present Petition for Certiorari. The Ombudsman issued
a Joint Order on 4 June 2014 and specifically addressed the issue that Sen. Estrada is
raising in this Petition. Thus, Sen. Estrada's present Petition for Certiorari is not only
premature, it also constitutes forum shopping. WHEREFORE, we DISMISS the Petition
for Certiorari in G.R. Nos. 212140-41.
SO ORDERED.
 G.R. No. 206866, September 02, 2015
PHILIPPINE DEPOSIT INSURANCE CORPORATION
(PDIC), Petitioner, v. HON. ORLANDO C. CASIMIRO, IN HIS CAPACITY
AS OVERALL DEPUTY OMBUDSMAN, FIDEL C. CU, CARMELITA B. ZATE,
AND MARY LOU S. APELO, Respondents.
DECISION
PERLAS-BERNABE, J.:
Assailed in this petition for certiorari1 are the Resolution2 dated January 24,
2012 and the Order3 dated October 29, 2012 of the Office of the Ombudsman
(Ombudsman) in OMB-C-C-10-0294-G dismissing the criminal complaint
against private respondents Fidel C. Cu (Cu), Carmelita B. Zate (Zate), and
Mary Lou S. Apelo (Apelo; collectively, private respondents) for lack of
probable cause.
The Facts
The instant case arose from a Joint-Affidavit4 dated June 18, 2010 filed by
petitioner Philippine Deposit Insurance Corporation (PDIC), through its duly-
authorized officers, Alexander N. Dojillo and Israel A. Bandoy, charging
private respondents of the crimes of Direct Bribery and Corruption of Public
Officials, defined and penalized under Articles 210 and 212 of the Revised
Penal Code (RPC), respectively, as well as violation of Section 3 (e) of
Republic Act No. (RA) 3019, entitled the Anti-Graft and Corrupt Practices Act.
Specifically, private respondents were being sued in the following capacities:
(a) Cu (together with members of his family) as the 85.99% owner of Bicol
Development Bank, Inc. (BDBI); (b) Zate as Chairman/President of BDBI;
and (c) Apelo as a former employee of the Bangko Sentral ng Pilipinas (BSP)
who acted as the Bank Officer-In-Charge that examined BDBI's books and
records as of September 30, 2001, and as one of the assistants of Bank
Officer-In-Charge Evangeline C. Velasquez in connection with the Reports of
Examination of BDBI's books and records as of August 31, 2000 and October
31, 2002.5
The Joint-Affidavit averred that on December 22, 2008, PDIC, acting as
statutory receiver, took over the affairs of BDBI after the BSP Monetary
Board ordered its closure. As statutory receiver, PDIC purposedly went on to
gather, preserve, and administer its records, assets, and liabilities for the
benefit of its depositors and creditors. In the course of the receivership,
Arsenia T. Gomez (Gomez) - a former Cashier, Service Officer, and Treasurer
of BDBI until its closure - went to the PDIC and submitted an Affidavit6 dated
January 12, 2010 outlining the alleged irregularities committed by private
respondents when BDBI was still in operation.7
According to Gomez, on November 16, 2006, Cu instructed her to take
money from the vault in the amount of P30,000.00 and to deposit the same
to Apelo's bank account in Philippine National Bank - Legazpi City Branch
under Account Number 224-521-5625.8 When Gomez asked for the reason,
Cu replied "Professional Fee natin sa kanya yan" On further orders/directives
from Cu and Zate, additional deposits were made to Apelo's bank account on
two (2) separate dates, specifically April 20, 2007 and October 3, 2007, in
the respective amounts of P60,000.00 and P50,000.00. After the deposits
were made, Gomez was initially instructed to cover the unofficial and
unbooked cash disbursements in favor of Apelo by placing such amounts in
BDBI's books as "Other Cash Items;" and thereafter, to regularize and
remove from BDBI's books such disbursements by including them in the
other accounts of BDBI until they were completely covered.9 To bolster her
allegations, Gomez attached copies of deposit slips and official receipts to
show that such deposits were indeed made to Apelo's bank accounts.10
In this regard, Gomez averred that in the course of her employment with
BDBI, she does not know of any official or legitimate transactions that would
warrant BDBI to disburse the aforesaid amounts in favor of Apelo. However,
speaking from personal experience, Gomez noticed that Cu would always
receive an "advance warning" about a surprise examination on BDBI by BSP.
During such time and until the actual arrival of the BSP examiner, Cu would
instruct BDBI employees on how to cover the possible findings/exceptions of
the BSP examiner on the books of BDBI. In addition, Cu shall deliver cash in
BDBFs vault in order to make it appear that the cash listed in the books
reflect the actual cash in vault; and after such examination, Cu will take the
cash he delivered to BDBFs vault and return it to the source.11
In view of Gomez's revelations, PDIC decided to file the instant criminal
complaint against private respondents.
In his defense, Cu denied having ordered or instructed Gomez to make such
deposits to Apelo's bank account. He pointed to the lack of evidence to prove
that Apelo was aware or made aware of any alleged bank deposits made to
her bank account, thus, negating the charge of Direct Bribery against her and
Corruption of Public Officials against him. For her part, Zate likewise denied
the allegations hurled against her, countering that Gomez's statements
should not be relied upon for being unfounded. Apelo did not file any counter-
affidavit despite the Ombudsman's orders.12
The Ombudsman's Ruling
In a Resolution13 dated January 24, 2012, the Ombudsman dismissed the
criminal complaint for lack of probable cause.14 The Ombudsman found that
while it may be said that certain amounts were indeed deposited to Apelo's
bank account, there is no proof that Apelo subsequently withdrew the same.
In this regard, the Ombudsman opined that unless it can be shown that Apelo
made such withdrawals, it cannot be declared with certainty that she received
monetary consideration from Cu and Zate in exchange for the advance
information relative to impending BSP examinations conducted on BDBI.15
PDIC moved for reconsideration, which was, however, denied in an
Order16 dated October 29, 2012. The Ombudsman found Gomez's affidavit
showing Apelo as the source of the "advance warnings" received by Cu in
connection with the BSP examinations to be inadmissible in evidence for
being hearsay.17 Aggrieved, PDIC filed the instant petition.18
The Issue Before the Court
The primordial issue raised for the Court's resolution is whether or not the
Omibudsman gravely abused its discretion in finding no probable cause to
indict private respondents of the crimes charged.
The Court's Ruling
The petition is meritorious.
At the outset, it must be stressed that the Court has consistently refrained
from interfering with the discretion of the Ombudsman to determine the
existence of probable cause and to decide whether or not an Information
should be filed. Nonetheless, this Court is not precluded from reviewing the
Ombudsman's action when there is a charge of grave abuse of discretion.
Grave abuse of discretion implies a capricious and whimsical exercise of
judgment tantamount to lack of jurisdiction. The Ombudsman's exercise of
power must have been done in an arbitrary or despotic manner which must
be so patent and gross as to amount to an evasion of a positive duty or a
virtual refusal to perform the duty enjoined or to act at all in contemplation of
law.19 The Court's pronouncement in Ciron v. Gutierrez20 is instructive on this
matter, to wit:
x x x this Court's consistent policy has been to maintain non-
interference in the determination of the Ombudsman of the existence
of probable cause, provided there is no grave abuse in the exercise of
such discretion. This observed policy is based not only on respect for
the investigatory and prosecutory powers granted by the Constitution
to the Office of the Ombudsman but upon practicality as
well. Otherwise, the functions of the Court will be seriously hampered by
innumerable petitions assailing the dismissal of investigatory proceedings
conducted by the Office of the Ombudsman with regard to complaints filed
before it, in much the same way that the courts would be extremely
swamped with cases if they could be compelled to review the exercise of
discretion on the part of the fiscals or prosecuting attorneys each time they
decide to file an information in court or dismiss a complaint by a private
complainant.21 (Emphasis and underscoring supplied)
In this regard, it is worthy to note that the conduct of preliminary
investigation proceedings - whether by the Ombudsman or by a public
prosecutor - is geared only to determine whether or not probable cause exists
to hold an accused-respondent for trial for the supposed crime that he
committed. In Fenequito v. Vergara, Jr.,22 the Court defined probable cause
and the parameters in finding the existence thereof in the following manner:
Probable cause, for the purpose of filing a criminal information, has been
defined as such facts as are sufficient to engender a well-founded
belief that a crime has been committed and that respondent is
probably guilty thereof. The term does not mean "actual or positive cause"
nor does it import absolute certainty. It is merely based on opinion and
reasonable belief. Probable cause does not require an inquiry into
whether there is sufficient evidence to procure a conviction. It is
enough that it is believed that the act or omission complained of
constitutes the offense charged.
A finding of probable cause needs only to rest on evidence showing that,
more likely than not, a crime has been committed by the suspects. It need
not be based on clear and convincing evidence of guilt, not on
evidence establishing guilt beyond reasonable doubt, and definitely
not on evidence establishing absolute certainty of guilt. In determining
probable cause, the average man weighs facts and circumstances without
resorting to the calibrations of the rules of evidence of which he has no
technical knowledge. He relies on common sense. What is determined is
whether there is sufficient ground to engender a well-founded belief
that a crime has been committed, and that the accused is probably
guilty thereof and should be held for trial. It does not require an
inquiry as to whether there is sufficient evidence to secure a
conviction.23 (Emphases and underscoring supplied)
Verily, preliminary investigation is merely an inquisitorial mode of discovering
whether or not there is reasonable basis to believe that a crime has been
committed and that the person charged should be held responsible for it.
Being merely based on opinion and belief, a finding of probable cause does
not require an inquiry as to whether there is sufficient evidence to secure a
conviction.24 "[A preliminary investigation] is not the occasion for the full and
exhaustive display of [the prosecution's] evidence. The presence or absence
of the elements of the crime is evidentiary in nature and is a matter of
defense that may be passed upon after a full-blown trial on the
merits."25 Hence, "the validity and merits of a party's defense or accusation,
as well as the admissibility of testimonies and evidence, are better ventilated
during trial proper than at the preliminary investigation level."26
Guided by the foregoing considerations, the Court finds that the Ombudsman
gravely abused its discretion in dismissing the criminal complaint against
private respondents for lack of probable cause, as will be explained
hereunder.
As already stated, Apelo was accused of committing the crime of Direct
Bribery, which has the following elements: (a) that the accused is a public
officer; (b) that he received directly or through another some gift or present,
offer or promise; (c) that such gift, present or promise has been given in
consideration of his commission of some crime, or any act not constituting a
crime, or to refrain from doing something which is his official duty to do; and
(d) that the crime or act relates to the exercise of his functions as a public
officer.27 On the other hand, Cu and Zate were accused of committing the
crime of Corruption of Public Officials, the elements of which are as follows:
(a) that the offender makes offers or promises, or gives gifts or presents to a
public officer; and (b) that the offers or promises are made or the gifts or
presents are given to a public officer under circumstances that will make the
public officer liable for direct bribery or indirect bribery.28 In addition, all
private respondents were charged with violation of Section 3 (e) of RA 3019.
The essential elements of such crime are as follows: (a) that the accused
must be a public officer discharging administrative, judicial, or official
functions (or a private individual acting in conspiracy with such public
officers29); (b) that he acted with manifest partiality, evident bad faith, or
inexcusable negligence; and (c) that his action caused any undue injury to
any party, including the government, or giving any private party unwarranted
benefits, advantage, or preference in the discharge of his functions.30
A review of the records of the case reveals that after BDBFs closure, PDIC
started to perform its functions as statutory receiver, which includes, among
others, the control, management, and administration of BDBI as well as
investigating the causes of BDBI's closure.31 In the course of the receivership,
Gomez — a former Cashier, Service Officer, and Treasurer of BDBI - came
forward and through her affidavit, reported the purported scheme
perpetrated by private respondents that fraudulently concealed BDBFs true
condition as a banking entity. Gomez's affidavit outlines such scheme as
follows: (a) Apelo would provide Cu an "advance warning" of any impending
surprise bank examinations on BDBI by BSP; (b) upon receipt of the
"advance warning," Cu would then make the necessary steps to misrepresent
BDBI's status, such as instructing BDBI employees on how to cover the
possible findings/exceptions of the BSP examiner on the books of BDBI, as
well as infusing cash into BDBI's vault in order to make it appear that the
cash listed in the books reflect the actual cash in vault, and thereafter
returning such cash to the source; (c) in exchange for such "advance
warnings," Cu and/or Zate gave Apelo as "professional fees" the aggregate
amount of P140,000.00 by depositing the same to the latter's bank account;
and (d) to cover up such amounts given to Apelo, Cu and/or Zate, instructed
Gomez to initially cover the unofficial and unbooked cash disbursements in
favor of Apelo by placing such amounts in BDBI's books as "Other Cash
Items," and thereafter, regularize and remove from BDBI's books such
disbursements by including them in the other accounts of BDBI until they
were completely covered. To support such statements, Gomez provided
copies of deposit slips showing that such amount was indeed deposited to
Apelo's bank account. She likewise asserted that in the course of her
employment at BDBI, she does not know of any official or legitimate
transactions that BDBI had with Apelo that would warrant the disbursement
of the aforesaid amount in the latter's favor.
In view of such grave accusations against them, Cu and Zate resorted to
mere denials, while Apelo ignored the complaint by not filing a counter-
affidavit despite due notice, thus, miserably failing to debunk the charges
hurled against them. Indubitably, the foregoing establishes probable cause to
believe that private respondents may have indeed committed such acts
constituting the crimes charged against them. As such, they must defend
themselves in a full-blown trial on the merits.
Finally, it was error on the part of the Ombudsman to simply discredit
Gomez's affidavit as inadmissible in evidence for being hearsay. It is
noteworthy to point out that owing to the initiatory nature of preliminary
investigations, the technical rules of evidence should not be applied in the
course of its proceedings.32 In the recent case of Estrada v.
Ombudsman,33 the Court declared that hearsay evidence is admissible in
determining probable cause in preliminary investigations because such
investigation is merely preliminary, and does not finally adjudicate rights and
obligations of parties. Citing a case decided by the Supreme Court of the
United States, it was held that probable cause can be established with
hearsay evidence, as long as there is substantial basis for crediting the
hearsay, viz.:
Justice Brion's pronouncement in Unilever that "the determination of probable
cause does not depend on the validity or merits of a party's accusation or
defense or on the admissibility or veracity of testimonies presented" correctly
recognizes the doctrine in the United States that the determination of
probable cause can rest partially, or even entirely, on hearsay
evidence, as long as the person making the hearsay statement is
credible. In United States v. Ventresca, the United States Supreme Court
held:
While a warrant may issue only upon a finding of "probable cause," this Court
has long held that "the term 'probable cause' ... means less than evidence
which would justify condemnation," x x x and that a finding of "probable
cause" may rest upon evidence which is not legally competent in a criminal
trial, x x x As the Court stated in Brinegar v. United States x x x, "There is a
large difference between two things to be proved (guilt and probable cause),
as well as between the tribunals which determine them, and therefore a like
difference in the quanta and modes of proof required to establish
them." Thus, hearsay may be the bases for issuance of the warrant
"so long as there ... [is] a substantial basis for crediting the
hearsay." x x x And, in Aguilar, we recognized that "an affidavit may be
based on hearsay information and need not reflect the direct personal
observations of the affiant," so long as the magistrate is "informed of
some of the underlying circumstances" supporting the affiant's
conclusions and his belief that any informant involved "whose
identity need not be disclosed..." was "credible" or his information
"reliable." x x x.
Thus, probable cause can be established with hearsay evidence, as
long as there is substantial basis for crediting the hearsay. Hearsay
evidence is admissible in determining probable cause in a preliminary
investigation because such investigation is merely preliminary, and
does not finally adjudicate rights and obligations of parties. x x
x.34 (Emphases and underscoring supplied)
In this case, assuming arguendo that Gomez's statements, as written in her
affidavit are indeed hearsay, there is nevertheless substantial basis to credit
the same, considering that she was a former Cashier, Service Officer, and
Treasurer of BDBI - a high-ranking officer that may be privy to delicate
transactions such as the purported "under-the-table" deal involving private
respondents. In this regard, it must be emphasized that in determining the
elements of the crime charged for purposes of arriving at a finding of
probable cause, only facts sufficient to support a prima facie case against the
respondents are required, not absolute certainty. Probable cause implies
mere probability of guilt, i.e., a finding based on more than bare suspicion
but less than evidence that would justify a conviction.35 To reiterate, the
validity of the merits of a party's defense or accusations as well as the
admissibility of testimonies and evidences are better ventilated during the
trial stage than in the preliminary stage.36
In sum, the Court is convinced that there is probable cause to indict private
respondents of the crimes charged against them. Hence, the Ombudsman
committed grave abuse of discretion amounting to lack or excess of
jurisdiction when it ordered the dismissal of the criminal complaint against
private respondents.
WHEREFORE, the petition is GRANTED. The Resolution dated January 24,
2012 and the Order dated October 29, 2012 of the Office of the Ombudsman
in OMB-C-C-10-0294-G are hereby REVERSED and SET ASIDE. Accordingly,
the Office of the Ombudsman is DIRECTED to issue the proper resolution in
order to indict private respondents Fidel C. Cu, Carmelita B. Zate, and Mary
Lou S. Apelo in accordance with this Decision.
SO ORDERED.
chanroblesvirtuallawl ibrary
G.R. No. 194159
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT, Petitioner
vs.
MA. MERCEDITAS NAVARRO-GUTIERREZ (as then Ombudsman), DON M. FERRY,
JOSE R. TENGCO, JR., ROLANDO M. ZOSA, CESAR C. ZALAMEA, OFELIA I.
CASTELL, and RAFAEL A. SISON, Public Respondents,
RODOLFO M. CUENCA, MANUEL I. TINIO, and ANTONIO R. ROQUE, Private
Respondent.
DECISION
PERLAS-BERNABE, J.:
Before the Court is a petition for certiorari1 assailing the Resolution2 dated May 30, 2007
and the Order3 dated April 13, 2009 of the Office of the Ombudsman (Ombudsman) in
OMB-C-C-03-0500-I, which dismissed the affidavit-complaint4 of petitioner Presidential
Commission on Good Government (PCGG) charging individual respondents Don M.
Ferry (Ferry), Jose R. Tengco, Jr. (Tengco), Rolando M. Zosa (Zosa), Cesar C. Zalamea
(Zalamea), Ofelia I. Castell (Castell), Rafael A. Sison (Sison), Rodolfo M. Cuenca
(Cuenca), Manuel I. Tinio (Tinio), and Antonio R. Roque (Roque) for allegedly violating
Sections 3 (e) and (g) of Republic Act No. (RA) 3019,5 for lack of probable cause.
The Facts
The instant case arose from an Affidavit-Complaint6 dated July 15, 2003 filed by the
PCGG – through Rene B. Gorospe, the Legal Consultant in-charge of reviewing behest
loan cases – against former officers/directors of the Development Bank of the Philippines
(DBP), namely, Ferry, Tengco, Zosa, Zalamea, Castell, and Sison, as well as former
officers/stockholders of National Galleon Shipping Corporation (Galleon), 7 namely,
Cuenca, Tinio, and Roque charging them of violating Sections 3 (e) and (g) of RA 3019.
In the Affidavit-Complaint, the PCGG alleged that on October 8, 1992, then President
Fidel V. Ramos (President Ramos) issued Administrative Order No. 13, 8 creating the
Presidential Ad Hoc Fact-Finding Committee on Behest Loans (Ad Hoc Committee) in
order to identify various anomalous behest loans entered into by the Philippine
Government in the past. Later on, President Ramos issued Memorandum Order No.
619 on November 9, 1992, laying down the criteria which the Ad Hoc Committee may use
as a frame of reference in determining whether or not a loan is behest in nature.
Thereafter, the Ad Hoc Committee, with the assistance of a Technical Working Group
(TWG) consisting of officers and employees of different government financial institutions
(GFIs), examined and studied documents relative to loan accounts extended by GFIs to
various corporations during the regime of the late President Ferdinand E. Marcos
(President Marcos) - one of which is the loan account granted by the DBP to Galleon. 10
After examining the aforesaid loan account, the TWG found, inter alia, that: (a) on
September 19, 1979, DBP, pursuant to its Board Resolution No. 3002, 11 approved
guarantees in favor of Galleon in the aggregate amount of US$90,280,000.00 for the
purpose of securing foreign currency borrowings from financial institutions related to
Galleon’s acquisition of five (5) brand new and two (2) secondhand vessels; 12 (b) Board
Resolution No. 3002 specifically stated that such accommodation "shall be undertaken at
the behest of the Philippine Government;" 13 (c) as a condition for the grant of the
guarantees, Board Resolution No. 3002 required Galleon to raise its paid up capital to
₱98.963 Million by 1981,14 but Galleon was only able to raise its capital to
₱46,740.755.00;15 (d) despite Galleon’s failure to comply with such condition, DBP still
granted the guarantees; (e) as of June 30, 1981, Galleon’s arrearages had already
amounted to ₱40,684,059.37, while the aggregate DBP obligations of Galleon already
totaled ₱691,058,027.92;16 (f) despite the outstanding debts, DBP still issued Board
Resolution Nos. 400817 and 3001,18 approving further accommodations in Galleon’s favor
in the form of one-year foreign currency loans to refinance the latter’s arrearages, which
amounted to ₱58,101,718.89 as of September 30, 1982; 19 (g) despite Galleon’s
arrearages amounting to ₱128,182,654.38 and obligations accumulating to
₱904,277,536.96, DBP still approved the release of Galleon’s two (2) secondhand
vessels as collaterals resulting in collateral deficiency; 20 and (h) as of March 31, 1984,
Galleon’s total obligations to DBP amounted to ₱2,039,284,390.85, while the value of its
collaterals was only ₱539,000,000.00.21 These findings were then collated in an
Executive Summary22 which was submitted to the Ad Hoc Committee.
Based on the foregoing, the Ad Hoc Committee concluded that the
loans/accommodations obtained by Galleon from DBP possessed positive characteristics
of behest loans, considering that: (a) Galleon was undercapitalized; (b) the loan itself
was undercollateralized; (c) the major stockholders of Galleon were known to be cronies
of President Marcos; and (d) certain documents pertaining to the loan account were
found to bear "marginal notes" of President Marcos himself.23 Resultantly, the PCGG filed
the instant criminal complaint against individual respondents, docketed as OMB-C-C-03-
0500-I.
Except for Roque, Zalamea, Tengco, and Castell, the other individual respondents
impleaded in the affidavit-complaint did not file their respective counter-affidavits despite
due notice.24
In his defense,25 Roque denied being a Marcos crony, and averred that he was only a
minor shareholder of Galleon and that he was in no position to influence the DBP in
extending the subject loan to Galleon.26 For his part,27 Zalamea maintained that he had no
participation or hand in the subject loan transactions as he joined the DBP as Chairman
only in 1982, while the execution of the transactions pertaining to such loan was done in
1979-1981, and that the criminal charges against them are barred by prescription since it
had been more than 20 years before the complaint against them was filed on July 15,
2003.28 Similarly, Tengco also argued29 that the criminal charges against them had
already prescribed. He also contended that his participation in the approval of the subject
loan was at the board level only and was done in the exercise of his sound business
judgment through the collective act of the DBP Board of Directors.30 Finally, Castell
pleaded31 that her role in the handling of the projects and transactions of Galleon involved
only the supervision of employees, but with no approving authority for matters like those
involving the transactions pertaining to the subject loan obtained by Galleon from DBP. 32
The Ombudsman Ruling
In a Resolution33 dated May 30, 2007, the Ombudsman found no probable cause against
private respondents and, accordingly, dismissed the criminal complaint against them. 34 It
found that the pieces of evidence attached to the case records were not sufficient to
establish probable cause against the individual respondents, considering that the
documents presented by the PCGG consisted mostly of executive summaries and
technical reports, which are hearsay, self-serving, and of little probative value.35 In this
relation, the Ombudsman noted that the PCGG failed to present "the documents which
would directly establish the alleged illegal transactions like, the Loan Agreement between
DBP and [Galleon], the approved Board Resolutions by the DBP officers/board of
directors, the participation/voting that transpired at the board meetings wherein the
alleged behest loans were granted."36
Aggrieved, the PCGG moved for reconsideration,37 which was, however, denied in an
Order38 dated April 13, 2009; hence, this petition.39
The Issue Before the Court
The issue raised for the Court’s resolution is whether or not the OMB gravely abused its
discretion in finding no probable cause to indict respondents of violating Sections 3 (e)
and (g) of RA 3019.
The Court’s Ruling
The petition is meritorious.
At the outset, it must be stressed that the Court has consistently refrained from
interfering with the discretion of the Ombudsman to determine the existence of probable
cause and to decide whether or not an Information should be filed. Nonetheless, the
Court is not precluded from reviewing the Ombudsman’s action when there is a charge of
grave abuse of discretion. Grave abuse of discretion implies a capricious and whimsical
exercise of judgment tantamount to lack of jurisdiction. 40 The Ombudsman’s exercise of
power must have been done in an arbitrary or despotic manner which must be so patent
and gross as to amount to an evasion of a positive duty or a virtual refusal to perform the
duty enjoined or to act at all in contemplation of law. 41 The Court’s pronouncement
in Ciron v. Gutierrez42 is instructive on this matter, to wit:
x x x this Court’s consistent policy has been to maintain noninterference in the
determination of the Ombudsman of the existence of probable cause, provided
there is no grave abuse in the exercise of such discretion. This observed policy is
based not only on respect for the investigatory and prosecutory powers granted
by the Constitution to the Office of the Ombudsman but upon practicality as
well. Otherwise, the functions of the Court will be seriously hampered by innumerable
petitions assailing the dismissal of investigatory proceedings conducted by the Office of
the Ombudsman with regard to complaints filed before it, in much the same way that the
courts would be extremely swamped with cases if they could be compelled to review the
exercise of discretion on the part of the fiscals or prosecuting attorneys each time they
decide to file an information in court or dismiss a complaint by a private
complainant.43 (Emphasis and underscoring in the original)
In this regard, it is worthy to note that the conduct of preliminary investigation
proceedings – whether by the Ombudsman or by a public prosecutor – is geared only to
determine whether or not probable cause exists to hold an accused-respondent for trial
for the supposed crime that he committed. In Fenequito v. Vergara, Jr., 44 the Court
defined probable cause
and the parameters in finding the existence thereof in the following manner,
to wit:
Probable cause, for the purpose of filing a criminal information, has been defined
as such facts as are sufficient to engender a wellfounded belief that a crime has
been committed and that respondent is probably guilty thereof. The term does not
mean "actual or positive cause" nor does it import absolute certainty. It is merely based
on opinion and reasonable belief. Probable cause does not require an inquiry
whether there is sufficient evidence to procure a conviction. It is enough that it is
believed that the act or omission complained of constitutes the offense charged.
A finding of probable cause needs only to rest on evidence showing that, more likely than
not, a crime has been committed by the suspects. It need not be based on clear and
convincing evidence of guilt, not on evidence establishing guilt beyond
reasonable doubt, and definitely not on evidence establishing absolute certainty of
guilt. In determining probable cause, the average man weighs facts and circumstances
without resorting to the calibrations of the rules of evidence of which he has no technical
knowledge. He relies on common sense. What is determined is whether there is
sufficient ground to engender a well-founded belief that a crime has been
committed, and that the accused is probably guilty thereof and should be held for
trial. It does not require an inquiry as to whether there is sufficient evidence to
secure a conviction.45 (Emphases and underscoring supplied)
Verily, preliminary investigation is merely an inquisitorial mode of discovering whether or
not there is reasonable basis to believe that a crime has been committed and that the
person charged should be held responsible for it. Being merely based on opinion and
belief, a finding of probable cause does not require an inquiry as to whether there is
sufficient evidence to secure a conviction. 46 "[A preliminary investigation] is not the
occasion for the full and exhaustive display of [the prosecution’s] evidence. The
presence and absence of the elements of the crime is evidentiary in nature and is a
matter of defense that may be passed upon after a full-blown trial on the merits."47 Hence,
"the validity and merits of a party’s defense or accusation, as well as the admissibility of
testimonies and evidence, are better ventilated during trial proper than at the preliminary
investigation level."48
Guided by the foregoing considerations, the Court finds that the Ombudsman gravely
abused its discretion in dismissing the criminal complaint against individual respondents
for lack of probable cause, as will be explained hereunder.
As already stated, individual respondents were accused of violating Section 3 (e) of RA
3019, the elements of which are as follows: (a) that the accused must be a public officer
discharging administrative, judicial, or official functions (or a private individual acting in
conspiracy with such public officers); (b) that he acted with manifest partiality, evident
bad faith, or inexcusable negligence; and (c) that his action caused any undue injury to
any party, including the government, or giving any private party unwarranted benefits,
advantage, or preference in the discharge of his functions. 49 In the same vein, they were
likewise charged with violation of Section 3 (g) of the same law, which has the following
elements: (a) that the accused is a public officer; (b) that he entered into a contract or
transaction on behalf of the government; and (c) that such contract or transaction is
grossly and manifestly disadvantageous to the government. 50 Notably, private individuals
may also be charged with violation of Section 3 (g) of RA 3019 if they conspired with
public officers.51
A review of the records of the case reveals that Galleon made a request for guarantees
from DBP to cover its foreign borrowings for the purpose of acquiring new and
secondhand vessels. In an evaluation memorandum 52 dated August 27, 1979, the DBP
itself already raised various red flags regarding Galleon’s request, such as the following:
(a) its guarantee accommodation request covers 100% of its project cost, which is in
excess of DBP’s normal practice of financing only 80% of such cost; (b) its net profit
margin was experiencing a steady decrease due to high operating costs; (c) its paid-up
capital is only ₱9.95 Million; and (d) aside from its proposal to source the increase in
equity from the expected profits from the operations of the vessels to be acquired,
Galleon has not shown any concrete proof on how it will be funding its equity build-
up.53 Despite the foregoing, DBP still agreed to grant Galleon’s request under certain
conditions (e.g., increase in paid-up capital, placement of adequate collaterals), which
were eventually not complied with. Further, when Galleon’s arrearages and obligations
skyrocketed due to its failure to service its debts, DBP, instead of securing its interest by
demanding immediate payment or the foreclosure of the collaterals, granted Galleon
further accommodations in the form of foreign currency loans and release of certain
collaterals. As a result of the foregoing, among other things, Galleon’s total obligations to
DBP ballooned all the way to ₱2,039,284,390.85, while the collaterals securing such
obligations were only valued at ₱539,000,000.00 as of March 31, 1984. 54 Further,
Galleon’s paid-up capital remained only at ₱46,740,755.00 as of June 30, 1981. 55
In light of the foregoing considerations, the Ad Hoc Committee concluded that the
accommodations extended by DBP to Galleon were in the nature of behest loans, which
then led to the filing of criminal cases against individual respondents, who were high-
ranking officers and/or directors of either Galleon or DBP, as evidenced by the various
documents on record. Specifically, Cuenca, Tinio, and Roque were Galleon stockholders
and were its President, Executive Vice-President and Treasurer, and Corporate
Secretary, respectively.56 On the other hand, the following individual respondents
exercised official functions for the DBP during the time it extended Galleon the aforesaid
accommodations: (a) Ferry as DBP Vice Chairman and Acting Chairman;57 (b) Tengco as
DBP Board Member, Supervising Governor, and Acting Chairman; 58 (c) Zosa as DBP
Supervising Governor and Chairman of the Loan Committee;59 (d) Zalamea as DBP
Chairman;60 (e) Castell as DBP Executive Officer and Manager of the Industrial Projects
Development III;61 and (f) Sison as DBP Board Member and Acting Chairman.62 As may
be gleaned from the documents on record, it appears that each of these high-ranking
officers and/or directors of DBP had a hand in recommending the approval and/or the
actual approval of the series of accommodations that DBP granted in favor of Galleon,
which constituted the behest loans received by the latter during the regime of the late
President Marcos.
In view of the accusations that they were involved in the grant of behest loans, Roque,
Zalamea, Tengco, and Castell merely denied liability by maintaining that they had no
participation in such grant. Suffice it to say that these are matters of defense that are
better ventilated during the trial proper. On the other hand, Ferry, Zosa, Cuenca, Tinio,
and Sison miserably failed to debunk the charges against them by not filing their
respective counter-affidavits despite due notice. Indubitably, the foregoing establishes
probable cause to believe that individual respondents may have indeed committed acts
constituting the crimes charged against them, and as such they must defend themselves
in a full-blown trial on the merits.
Finally, it was error for the Ombudsman to simply discredit the TWG’s findings contained
in the Executive Summary which were adopted by the Ad Hoc Committee for being
hearsay, self-serving, and of little probative value. It is noteworthy to point out that owing
to the initiatory nature of preliminary investigations, the technical rules of evidence
should not be applied in the course of its proceedings.63 In the recent case of Estrada v.
Ombudsman,64 the Court declared that hearsay evidence is admissible in determining
probable cause in preliminary investigations because such investigation is merely
preliminary, and does not finally adjudicate rights and obligations of parties. Citing a case
decided by the Supreme Court of the United States, it was held that probable cause can
be established with hearsay evidence, as long as there is substantial basis for crediting In sum, the Court is convinced that there is probable cause to indict individual
the hearsay, viz.: respondents of violating Sections 3 (e) and (g) of RA 3019. Hence, the Ombudsman
committed grave abuse of discretion amounting to lack or excess of jurisdiction in
Justice Brion’s pronouncement in Unilever that "the determination of probable cause dismissing the criminal complaint against them.
does not depend on the validity or merits of a party’s accusation or defense or on the
admissibility or veracity of testimonies presented" correctly recognizes the doctrine in the WHEREFORE, the petition is GRANTED. The Resolution dated May 30, 2007 and the
United States that the determination of probable cause can rest partially, or even entirely, Order dated April 13, 2009 of the Office of the Ombudsman in OMB-C-C-03-0500-I are
on hearsay evidence, as long as the person making the hearsay statement is credible. In hereby REVERSED and SET ASIDE. Accordingly, the Office of the Ombudsman
United States v. Ventresca, the United States Supreme Court held: is DIRECTED to issue the proper resolution indicting individual respondents Don M.
Ferry, Jose R. Tengco, Jr., Rolando M. Zosa, Cesar C. Zalamea, Ofelia I. Castell, Rafael
While a warrant may issue only upon a finding of "probable cause," this Court has long A. Sison, Rodolfo M. Cuenca, Manuel I. Tinio, and Antonio R. Roque of violating
held that "the term ‘probable cause’ . . . means less than evidence which would justify Sections 3 (e) and (g) of Republic Act No. 3019, in accordance with this Decision.
condemnation," x x x and that a finding of "probable cause" may rest upon evidence
which is not legally competent in a criminal trial. x x x As the Court stated in Brinegar v. SO ORDERED.
United States x x x, "There is a large difference between two things to be proved (guilt
and probable cause), as well as between the tribunals which determine them, and
therefore a like difference in the quanta and modes of proof required to establish
them." Thus, hearsay may be the bases for issuance of the warrant "so long as
there … [is] a substantial basis for crediting the hearsay." x x x And, in Aguilar, we
recognized that "an affidavit may be based on hearsay information and need not
reflect the direct personal observations of the affiant," so long as the magistrate is
"informed of some of the underlying circumstances" supporting the affiant’s G.R. No.182157 August 17, 2015
conclusions and his belief that any informant involved "whose identity need not be
disclosed…" was "credible" or his information "reliable." x x x. ANLUD METAL RECYCLING CORPORATION, as represented by ALFREDO A.
DY, Petitioner,
Thus, probable cause can be established with hearsay evidence, as long as there vs.
is substantial basis for crediting the hearsay. Hearsay evidence is admissible in
1âwphi1

JOAQUIN ANG, Respondent.

determining probable cause in a preliminary investigation because such
investigation is merely preliminary, and does not finally adjudicate rights and DECISION
obligations of parties. x x x.65 (Emphases and underscoring supplied)
SERENO, CJ:
In this case, assuming arguendo that the factual findings contained in the Executive
Summary prepared by the TWG from which the Ad Hoc Committee based its conclusions
We resolve the Petition for Review 1 filed by petitioner Anlud Metal Recycling
are indeed hearsay, self-serving, and of little probative value, there is nevertheless
substantial basis to credit the same, as such factual findings appear to be based on Corporation, which assails the Decision and Resolution of the Court of Appeals (CA) in
official documents prepared by DBP itself in connection with the behest loans it allegedly CA-G.R. SP No. 97124. 2 The CA affirmed the Decision and Order of the Regional Trial
Court (RTC) in Criminal Case No. 12691-2004-C 3 dismissing the charge of estate
extended in favor of Galleon. In this regard, it must be emphasized that in determining
the elements of the crime charged for purposes of arriving at a finding of probable cause, against respondent Joaquin Ang; 4
only facts sufficient to support a prima facie case against the respondents are required,
not absolute certainty. Probable cause implies mere probability of guilt, i.e., a finding The antecedent facts are as follows:
based on more than bare suspicion, but less than evidence that would justify a
conviction.66 To reiterate, the validity of the merits of a party's defense or accusations and San Miguel Packaging Products-Metal Closures Lithography Plant (SMC-MCLP)
the admissibility of testimonies and evidences are better ventilated during the trial stage allegedly awarded petitioner an exclusive contract to purchase its aluminum-and tin-
than in the preliminary stage.67 based scrap materials from 20 March 2003 to 31 January 2004. However, on 23 January
2004, the President of Anlud Metal Recycling Corporation Found that SMC-MCLP’s
employee Conrado Alday had allowed Nenita B. Dela Cruz to load
scrap materials in two trucks! owned by respondent Ang, which were then operated by
his truck drivers Edjanel Jose Paniergo and Renato Bagauana.
Based on the narration of petitioner, Dela Cruz pretended to be an agent of Anlud Metal
Recycling Corporation when she arranged for the transport of the scrap materials. She
had allegedly coordinated the hauling with Alday, who was then working for SMC-MCLP.
Alday purportedly allowed the trucks driven by Paniergo and Bagaua to enter the plant
and load the scrap materials in the cargoes based on a false representation that the
transaction was authorized by petitioner. Fortunately, the two trucks was not able to
leave the premises of SMC-MCLP.
Petitioner lodged a Complaint for attempted estafa through falsification of
commercial/private document against Alday, Dela Cruz, Paniergo, Bagaua, and
respondent Ang. Subsequently, the Investigating Prosecutor caused the filing with the
RTC of an Information for estafa under Article 315, paragraph 2( a) of the Revised Penal
Code, which reads as follows: 5
That on or about January 23, 2004 at Brgy. Canlubang, in the City of Calamba and within
the jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating and mutually helping one another, with intent to defraud by means of
fraudulent acts executed prior to or simultaneously with the commission of the fraud, did
then there unlawfully, willfully and feloniously pretend to possess business or imaginary
transactions by claiming that he has the authority from complainant Anlud Metal
Recycling Corporation to withdraw from San Miguel Corp - Metal Closure Lithography
Plant (SMC MCLP), when in truth and in fact they were not and as a consequence, they
were able to withdraw thirty (30) metric tons of Aluminum Scraps from the said SMC-
MCLP estimated at more than ₱500,000 using the name of Anlud Metal Recycling
Corporation (ANLUD), which was charged to the latter's account, to its damage and
prejudice in the amount of PS00,000.
CONTRARY TO LAW.
The RTC issued a Warrant of Arrest 6 on 26 October 2004 against Ang and his co-
accused. Thereafter, respondent filed a Petition for Reinvestigation and a Motion for
Preliminary Investigation before the City Prosecutor's Office. He also filed with the RTC
an Urgent Motion to Suspend Proceedings Pending Reinvestigation and to Recall Order
of Arrest Against Accused Movant Joaquin Ang. 7
In its Order dated 20 January 2005, 8 the RTC denied the motion filed by Ang. It ruled
that his allegations were not supported by evidence; and that based on the facts of the
case, there was a reasonable ground to engender a well-founded belief that he had
committed estafa.
In contrast, on 3 February 2005, the City Prosecutor's Office issued its Resolution on
Reconsideration 9 absolving respondent from the offense charged. It discussed that
although he owned the trucks that carried the scrap materials, the theory of conspiracy
had no foundation absent any proof that he had performed any overt act of estafa. It also
highlighted the fact that he was not present at the time of the incident. As a result, the
City Prosecutor's Office filed an Amended Information, 10 which no longer included him as
an accused.
Petitioner bewailed the dropping of respondent from the charge. Thus, it filed with the
Department of Justice (DOJ) a Petition for Review, which the latter granted. 11 According
to the DOJ, respondent could not be considered innocent of estafa, since (1) his denial
was self-serving; (2) he owned the trucks used in loading the scrap materials; (3) he
failed to adduce exculpatory evidence showing that it was Dela Cruz who had
commanded the use of his trucks; ( 4) the drivers of the trucks were respondent's own;
and (5) it can be inferred from the action of the truck drivers that they received
instructions from him. Respondent filed a Motion for Reconsideration, but to no
avail. 12 Thus, a Second Amended Information 13 was filed with the RTC, which already
named Ang as one of the accused. On 16 June 2006, respondent sought judicial relief by
filing an Omnibus Motion to Determine Probable Cause and to Defer Issuance of
Warrant of Arrest Until Determination of Probable Cause Is Completed (Omnibus
Motion). 14 Petitioner filed its Comment/Opposition 15 thereto on 7 July 2006. ·
This time around, the court took a different stance. In its Decision dated 18 September
2006, the RTC dismissed the case against respondent for want of probable cause. It
explained that mere ownership of the trucks did not make respondent a co-conspirator
for estafa. For conspiracy to be appreciated against Ang, the trial court required proof
showing that he knew of the crime, consented to its commission, or performed any of its
elements.
Petitioner filed a Motion for Reconsideration 16 and a Motion for Inhibition, 17 but both were
denied through the RTC Order dated 3 October 2006. 18 The court reiterated in its ruling
that "in the resolution of the judicial determination of probable cause, the court is not
bound and cannot be bound by the findings of the Secretary of Justice in the existence of
probable cause and hold the accused for trial." 19
Unrelenting, petitioner questioned the dismissal of Ang's criminal case before the CA. In
its Decision dated 4 December 2007, and subsequent Resolution dated 13 March 2008,
the CA gave due course to the Petition for Certiorari 20 notwithstanding that Anlud Metal
Recycling Corporation had appealed without the participation of the Office of the Solicitor
General (OSG), which was supposed to act on behalf of the People of the Philippines.
However, the petition failed on the merits. Petitioner had argued before the CA that the
RTC should not have entertained respondent's Omnibus Motion, because its Notice of
Hearing was addressed only to the public prosecutor and not to petitioner. The CA
rejected this argument and ruled that the "absence of a notice to a private prosecutor
although the public prosecutor has been notified is a matter that is for a trial judge to
consider in his sound discretion." 21
Petitioner also failed to dispute the RTC's ruling to exclude Ang as an accused in the
crime of estafa. According to the CA, since the trial court had conducted an independent
evaluation, the fact alone that the latter reversed its earlier finding of probable cause did
not amount to grave abuse of discretion; and any error of the RTC was an error of
judgment not correctible by certiorari.
Aggrieved, petitioner filed the instant petition before this Court and raised the following
contentions: (1) the RTC had no jurisdiction to determine probable cause; (2) it abused
its discretion when it entertained respondent's Omnibus Motion for determination of
probable cause despite a defective Notice of Hearing; and (3) it erred in dismissing the
charge of estafa against Ang. In turn, respondent filed a Comment, 22 which included the
issue of petitioner's standing to file this appeal without the participation of the OSG.
Petitioner submitted its Reply 23 to refute the allegations of respondent.
RULING OF THE COURT
Petitioner has no personality to appeal the dismissal of the criminal case for estafa
before this Court. Before the Court proceeds with the substantive issues in this case, the
procedural issue of petitioner's personality to appeal the dismissal of the criminal case
merits preliminary attention.
Petitioner argues that since the CA has already ruled upon this issue, without respondent
filing a partial appeal, then the latter has already lost its right to question the standing of
Anlud ·Metal Recycling Corporation. This argument is unmeritorious. In the past, the
Court has motu propre ascertained the standing of a private offended party to appeal the
dismissal of a criminal case.24
In any event, respondent cannot be considered to have waived its argument regarding
the personality of petitioner to file the instant appeal. In his Comment, respondent cites
Republic v. Partisala 25 and asserts that petitioner has no right to appeal the dismissal of
the criminal case absent the participation of the OSG. In its Reply, petitioner responds by
quoting the ruling of the CA, viz: 26
As argued by petitioner, citing the case of Perez v. Hagonoy Rural Bank, Inc., the
petitioner, as private complainant, has legal personality to impugn the dismissal of the
criminal case against the private respondent under Rule 65. As private offended party,
the petitioner has an interest in the civil aspect of the case; thus, it may file a special civil
action for certiorari and prosecute the same in its own name without making the People
of the Philippines a party. While it is only the Solicitor General who may bring or defend
actions in behalf of the Republic of the Philippines, or represent the People or State in
criminal proceedings pending in the Supreme Court and the Court of Appeals, the private
offended party retains the right to bring a special civil action for certiorari in his own name
in criminal proceedings before the courts of law.
Notably, both positions taken by the parties are supported by jurisprudence. It is then
proper for this Court to clarify the standing of a private offended party - in this case,
petitioner - to appeal the dismissal of the criminal case against the accused, who in this
case is respondent.
The real party in interest in a criminal case is the People of the Philippines. Hence, if the
criminal case is dismissed by the trial court, the criminal aspect of the case must be
instituted by the Solicitor General on behalf of the State. 27
As a qualification, however, this Court recognizes that the private offended party has an
interest in the civil aspect of the case. 28 Logically, the capability of the private
complainant to question the dismissal of the criminal proceedings is limited only to
questions relating to the civil aspect of the case. 29 It should ideally be along this thin
framework that we may entertain questions regarding the dismissals of criminal cases
instituted by private offended parties. Enlarging this scope may result in wanton
disregard of the OSG's personality, as well as the clogging of our dockets, which this
Court is keen to avoid. Therefore, the litmus test in ascertaining the personality of herein
petitioner lies in whether or not the substance of the certiorari action it instituted in the
CA referred to the civil aspect of the case. 30
Here in this Rule 45 petition, petitioner argues that the RTC erred when it concluded that
"there is no evidence of conspiracy against private respondent Ang." Petitioner goes on
to enumerate circumstances that collectively amount to a finding that based on probable
cause, respondent conspired with the accused in defrauding Anlud Metal Recycling
Corporation.: 31
Clearly, petitioner mainly disputes the RTC's finding of want of probable cause to indict
Ang as an accused for estafa. This dispute refers, though, to the criminal, and not the
civil, aspect of the case. In Jimenez v. Sorongon 32 we similarly ruled:
In this case, the petitioner has no legal personality to assail the dismissal of the criminal
case since the main issue raised by the petitioner involved the criminal aspect of the
case, i.e., the existence of probable cause. The petitioner did not appeal to protect his
alleged pecuniary interest as an offended party of the crime, but to cause the
reinstatement of the criminal action against the respondents. This involves the right to
prosecute which pertains exclusively to the People, as represented by the OSG.
(Emphasis supplied)
Given that nowhere in the pleadings did petitioner even briefly discuss the civil liability of
respondent, this Court holds that Anlud Metal Recycling Corporation lacks the requisite
legal standing to appeal the discharge of respondent Ang from the Information for estafa.
On this ground alone, the petition already fails. 33
Nonetheless, this Court has already acknowledged the interest of substantial justice,
grave error committed by the judge, and lack of due process as veritable grounds to
allow appeals to prosper despite the non participation of the OSG. 34 But as will be
discussed below, petitioner has failed to demonstrate that the petition falls under any of
these exceptions.
The RTC may conduct a judicial determination of probable cause.
Petitioner explains that there are two determinations of probable cause: the first is for the
purpose of filing a criminal information in the court, and the second is for the issuance of
a warrant of arrest. Petitioner submits that since the first kind is executive in nature, then
the RTC had absolutely no jurisdiction to determine the existence of probable cause to
hold respondent as an accused in the crime of estafa.
Hence, for petitioner, the RTC grievously erred when it gave due course to the Omnibus
Motion of respondent, which questioned the determination of probable cause by the
prosecutor. Respondent counters this argument by alleging that the RTC may resolve
issues brought before it pursuant to the power of the court to administer justice.
Petitioner's interpretation of the rules on the determination of probable cause is
inaccurate. Although courts must respect the executive determination of probable
cause, 35 the trial courts may still independently determine probable cause. They are not
irrevocably bound to the determination of probable cause by the prosecutor and the
DOJ. 36
The trial court actually has the following options upon the filing of a criminal information: (
1) immediately dismiss the case if the evidence on record clearly fails to establish
probable cause; (2) issue a warrant of arrest if it finds probable cause; and (3) order the
prosecutor to present additional evidence within five days from notice in case of doubt as
to the existence of probable cause. 37 These options are provided in Rule 112, Section 6
(a) of the Rules of Court, which reads:
SECTION 6. When warrant of arrest may issue.-" (a) By the Regional Trial Court. -"
Within ten ( 10) days from the filing of the complaint or information, the judge shall
personally evaluate the resolution of the prosecutor and its supporting evidence. He may
immediately dismiss the case if the evidence on record clearly fails to establish probable
cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment
order if the accused has already been arrested pursuant to a warrant issued by the judge
who conducted the preliminary investigation or when the complaint or information was
filed pursuant to Section 7 of this Rule. In case of doubt on the existence of probable
cause, the judge may order the prosecutor to present additional evidence within five (5)
days from notice and the issue must be resolved by the court within thirty (30) days from
the filing of the complaint of information. (Emphasis supplied)
Indeed, the RTC is allowed to dismiss the charge of estafa against Ang notwithstanding
the executive determination of probable cause by the prosecutor. If we were to construe
otherwise, we would be contradicting the basic principle that "once an information is filed
in RTC, any disposition of the case rests already in the sound discretion of the court." 38
Rule 15, Section 5 of the Rules of Court was substantially complied with.
Citing Rule 15, Section 5 of the Rules of Court, petitioner regards the Notice of Hearing
appended to respondent's Omnibus Motion as defective. This is because the notice was
addressed only to the public prosecutor and the clerk of court, and not to the private
offended party - petitioner herein. 39
By having a defective Notice of Hearing, petitioner concludes that the Omnibus Motion
was a mere scrap of paper, which the RTC should have instantly disregarded. Thus,
when the RTC, as affirmed by the CA, gave due course to the motion, petitioner believes
that its right to due process was oppressed.
Petitioner correctly argues that a notice of hearing must be addressed to all the parties
concerned; 40 and that failure to comply with this directive results in a motion that should
be treated as a mere scrap of paper. 41 However, this general requirement of a valid
notice of hearing is one of those procedural rules that admit of various exceptions. 42
In Jehan Shipping Corporation v. National Food Authority, 43 the Court considered the
defect in the notice of hearing as cured, since the adverse party had the opportunity to
be heard and had filed pleadings in opposition to the motion. In particular, the adverse
party was able to argue the procedural defects and even ventilate substantial arguments.
This same application has already been echoed in our past decisions. 44 In those cases,
the Court observes that the real purpose behind the requirement of notice of hearing is to
afford the adverse parties a chance to be heard before a motion is resolved by the
court. 45 The test is the presence of the opportunity to be heard, as well as to have time to
study the motion and meaningfully oppose or controvert the grounds upon which it is
based. 46 Considering the circumstances of the present case, . we believe that procedural
due process has substantially been complied with.
Petitioner filed a Comment/Opposition on 7 July 2006 specifically to oppose the
supposedly defective Omnibus Motion filed by respondent on 16 June 2006. In that
pleading, petitioner raised the incompleteness of the Notice of Hearing and likewise
argued about the substantive merits - that probable cause existed to indict Ang as an
accused. Thereafter, the RTC scheduled the hearing for the judicial determination of
probable cause on 16 August 2006, but the hearing was later rescheduled on 30 August
2006. 47 Only after these proceedings had transpired did the trial court issue its assailed
Decision on 18 September 2006 finding a want of probable cause to hold Ang for trial for
the crime of estafa. Thereafter, petitioner filed a Motion for Reconsideration on 2 October
2006, which the RTC denied in its Order dated 3 October 2006.
Based on the sequence of events mentioned above, it is clear that petitioner was given
an opportunity to be heard. It advanced its opposition to the Omnibus Motion when it filed
its Comment/Opposition on 7 July 2006 and later on in its Motion for Reconsideration
dated 2 October 2006. From these facts, we conclude that Rule 15, Section 5 of the
Rules of Court on notice of hearing was substantially complied with. Consequently, this
Court cannot agree with petitioner that the latter's right to due process has been denied.
In any event, petitioner cannot anchor the reversal of the finding of want of probable
cause on the mere pretext that the Omnibus Motion filed by respondent was just a scrap
of paper as it contained a defective Notice of Hearing. The judicial determination of
probable cause may proceed even if the accused does not file a pertinent motion. As
adverted to earlier, the RTC may immediately dismiss the case if the evidence on record
clearly fails to establish probable cause. 48
The RTC did not exceed its jurisdiction when it dismissed the charge of estafa against
respondent for want of probable cause.
In the main, petitioner questions the ruling of the CA, which dismissed its Petition for
Certiorari. The CA held that the RTC did not commit an error of jurisdiction when the
latter ruled that the prosecution failed to establish probable cause against respondent.
Ordinarily, the detennination of probable cause is not lodged with this Court. 49 We
emphasize that the viewpoint we follow must conform to the nature of reviewing a CA
decision, which was rendered under Rule 65 of the Rules of Court.
In Hao v. People, [[50] ] we explained that in this situation, the Court is confronted with
the question of whether the CA correctly determined the presence or absence of grave
abuse of discretion on the part of the trial court, and not on the basis of whether the
latter's assessment of the incidents before it was strictly legally correct. To recall, grave
abuse of discretion exists when there is an arbitrary or despotic exercise of power due to
passion, prejudice or personal hostility; or a whimsical, arbitrary or capricious exercise of
power that amounts to an evasion of or a refusal to perform a positive duty enjoined by
law or to act at all in contemplation of law. 51
In this case, the CA no longer dealt with the particular exhibits relied upon by the RTC to
conclude the absence of probable cause to indict Ang as an accused in the case for
estafa. In its rulings, the RTC reasoned as follows: 52
The fact that the accused is the owner of the truck that carried the objects of the crime
cannot make him a co-conspirator in the execution of the crime of estafa. An affirmation
of this supposition (sic) open a floodgate for charges against people, whose only fault
was being owners of vehicle used in the commission of the crime.
xxxx
Upon review and examination of the prosecution evidence in the judicial determination of
probable cause, there is total absence of any prosecution evidence in their documents
(Annexes "A-1" to "A-9") and witnesses' affidavits (Exhibits "A" & "B") where this Court
can logically surmised nor inferred (sic) from any of the proven acts of any of the other
accused that Accused Joaquin Ang was in conspiracy with the other accused in their
common criminal unity and intent to defraud Anlud.
There was nothing from these documents and affidavits that Accused Joaquin Ang
committed, executed or implied any act leading to a conclusion that he knew the
commission of the crime or performed any of the elements of the offense to establish that
he acted in unison with the other accused. There was no proof that he benefited from the
effects of the crime. There was no proof that he gave his consent to the commission of
the alleged crime.
In view of this (sic) findings, this Court agrees with the observation of the Office of the
City Prosecutor of Calamba City in their Resolution on Reconsideration dated 22
September 2004 that absolved Accused Joaquin Ang. To quote their logic and ratio:
The bone of movant's contention dwells on the theory of conspiracy which was the basis
of his inclusion as one of the accused. Indubitably, accused Renato Bagaua and Edjanel
Jose were the assigned drivers of his trucks with plate number UUG 787 and TJL 632
that were chanced upon by the complainant loading scrap materials inside the premises
of San Miguel Corporation-Metal Closure Lithography Plant (SMC-MCLP) sometime in
January 23, 2004. A careful perusal of the evidence adduced by the parties will clearly
show that moving was not around at the premises of SMC MCLP during the time that the
other respondents were loading scrap materials on his truck Neither that he executed
any act leading to a conclusion that he has knowledge thereof or performed any of the
elements of the offense charged to show that he acted in unison with the accused. There
is also no proof that he benefited, in any manner, from the effects of the crime or gave
his consent to the commission thereof.
Based on the explanation of the RTC, this Court holds that the CA was correct in not
finding grave abuse of discretion on the part of the trial court. In referring to the extant
1âwphi1
facts, the arguments of the parties, as well as logic and law, the RTC did not whimsically,
arbitrarily, or capriciously ascertain the absence of probable cause.
Probable cause, albeit requiring less evidence than that which would justify a conviction,
nevertheless implies the probability of guilt and requires more than bare
suspicion. 53 Given that Ang was implicated in the conspiracy, the trial court correctly
looked into whether respondent performed any overt act as direct or indirect contribution
to the execution of the crime planned to be committed. 54
As held by the RTC, apart from owning the trucks, no other link has been established by
the prosecution to hold respondent as a conspirator in the hauling of the scrap materials.
Even in the instant petition,55 petitioner harps only on Ang being engaged in scrap
trading, owning the trucks, and employing the accused as his truck drivers. Without
more, none of these depicts any overt act of respondent connected to the
accomplishment of estafa.
Petitioner relies on the Memorandum submitted by Ang before the Office of the
Provincial Prosecutor of Calamba, Laguna, on 25 September 2004 to argue that
respondent admitted his complicity in the transaction. He purportedly admitted to the
crime when he pleaded: 56
Worse, Alfredo (petitioner's representative) went beyond the bounds of fairness and
good faith by maliciously and recklessly accusing the poor truck drivers Edjanel and
Renato of the crime when all they did was to drive the truck for their employer who had
negotiated with San Miguel for the purchase of the scrap material.
This issue was already raised by petitioner in the proceedings below. Unfortunately,
neither the RTC nor the CA discussed this matter.
Based on our own appreciation then, we find that nowhere in the above-quoted passage
is it indicated that respondent specifically made a factual admission that he had
instructed his drivers to go to the plant, misrepresent that they were from Anlud Metal
Recycling Corporation, and coordinate the hauling of the scrap materials with Alday and
Dela Cruz. An admission must be clear; and in this instance, it must take into account the
unwavering position of Ang that he did not conspire with any of the accused in their
alleged scheme to haul scrap materials with the use of his trucks. 57
All told, we are not inclined to disturb the conclusions of the RTC, as these are based on
the evidence on record. Neither are we in disagreement with the CA, which remarked
that the dismissal of the criminal action against Ang is "not fatal to the cause of the public
prosecution because such quashal appears to have been issued at the initial stage of the
criminal trial process." 58 Considering the foregoing, we rule to sustain the judgments of
the courts a quo.
WHEREFORE, the Petition for Review filed by Anlud Metal Recycling Corporation is
DENIED. The Court of Appeals Decision dated 4 December 2007 and subsequent
Resolution dated 13 March 2008 in CA G.R. SP. No. 97124, affirming the Regional Trial
Court Decision dated 18 September 2006 and Order dated 3 October 2006 in Criminal
Case No. 12691-04-C are AFFIRMED.
SO ORDERED.
G.R. No. 205800 September 10, 2014
MICROSOFT CORPORATION and ADOBE SYSTEMS INCORPORATED, Petitioners,
vs.
SAMIR FARAJALLAH, VIRGILIO D.C. HERCE, RACHEL P. FOLLOSCO, JESUSITO
G. MORALLOS, and MA. GERALDINE S. GARCIA (directors and officers of NEW
FIELDS (ASIA PACIFIC), INC.), Respondents.
DECISION
CARPIO, Acting C.J.:
The Case
Before this Court is a petition for review on certiorari under Rule 45 of the Rules of Court
which seeks to reverse and set aside the Decision1 of the Court of Appeals (CA) dated 28
June 2012 in CA-G.R. SP No. 116771 and the Resolution2 of the CA dated 30 January
2013. The Decision and Resolution sustained the orders of the Regional Trial Court of
Manila, Branch 21 (RTC) quashing Search Warrant Nos. 10-15912 and 10-15913.
The Facts
Microsoft Corporation and Adobe Systems Incorporated (petitioners) are corporations
organized and existing under the laws of the United States. Microsoft Corporation is the
owner of all rights including copyright relating to all versions and editions of Microsoft
software3 and the corresponding user’s manuals, and the registeredowner of the
"Microsoft" "MS DOS" trademarks in the Philippines. Adobe Systems Incorporatedis the Installed Software Product I.D./Serial
owner of all rights including copyright relating to all versions and editions of Adobe Number
Software.4
Microsoft Windows XP Pro V2002 55274-640-1582543-
S₱2 23442
Samir Farajallah, Virgilio D.C. Herce, Rachel P. Follosco, Jesusito G. Morallos and Ma.
Geraldine S. Garcia (respondents) are the directors and officers of New Fields (Asia Microsoft Office Word 2007 89388-707-0358973-
Pacific), Inc., a domestic corporation with principal office at Unit 1603, East Tower, Enterprise 65709
PhilippineStock Exchange Center, Exchange Road, Ortigas Center, Pasig City.
Edition 2007
Petitioners claim that in September 2009, they were informed that New Fields was Adobe Acrobat 8 Pro (1) 1118-1061-0904-4874-
unlawfully reproducing and using unlicensed versions of their software. Orion Support, 2027
Inc.(OSI) was engaged by petitioners to assist in the verification of this information. Two
OSI Market Researchers, Norma L. Serrano (Serrano) and Michael A. Moradoz
(Moradoz) were assigned to confirm the informant's tip. Serrano and Moradoz were
trained to detect unauthorized copies of Adobe and Microsoft software.5
Padilla was trained to distinguish original from counterfeit software, 7 and he saw the
On 17 March 2010, counsel for petitioners filed a letter-complaint with the Chief of the screens of the computers used by the OSI staff, including the product I.D. Nos. of the
Philippine National Police Criminal Investigation and Detection Group. The case was installed software.
assigned to Police Senior Inspector Ernesto V. Padilla (Padilla). 6
In their Joint Affidavit, Serrano and Moradoz stated that:
On 26 March 2010, Padilla, Serrano, and Moradoz went to the office of respondents.
Using a legitimate business pretext, they were able to use two computers owned by New There are at least two (2) computers using common product identification and/or serial
Fields and obtained the following information regarding the installed Microsoft and Adobe numbers of MICROSOFT and ADOBE software. This is one indication that the software
software: being used is unlicensed or was illegally reproduced or copied. Based on the training we
attended, all ADOBE and MICROSOFTsoftware should only be installed in one
First computer computer, unless they avail of an Open Licese Agreement from the software developer,
which is not the case in NEW FIELDS. In this case, the first three sets of numbers of the
Product I.D. Nos. of the MICROSOFT Windows XP Pro operating System software
Installed Software Product I.D./Serial program installed in the two (2) computerunits we used, i.e., "55274-640-1582543-
Number xxxxx", were the same. We also observed that the first three sets of numbers of the
Microsoft Windows XP Pro V2002 55274-640-1582543- Product I.D Nos. of the MICROSOFT Office 2007 (Word) software in the two (2)
S₱2 23775 computers we used, i.e., "89388-707-0358973-xxxxx", were also the same. Ostensibly,
this means that NEW FIELDS only used one (1) installer of the MICROSOFT Windows
Microsoft Office Word 2007 89388-707-0358973-
XP operating system software and one (1) installer of the MICROSOFT Office software
Enterprise 65509
program on two (2) computers. Based on our training, if the first three sets of numbers of
the Product I.D. Nos. of the MICROSOFT software installed are the same, it signifies that
Edition 2007 it came from one installer. It does not matter [if] the last 5 digits of the Product I.D. Nos.
Adobe Acrobat 8 Pro (1) 1118-1061-0904-4874- are different because this is computer-generated and therefore varies with every
2027 installation. Apart from the MICROSOFT software, the serial numbers of the ADOBE
software installed in the computer units we used were also the same, signifying that
NEW FIELDS only used one (1) installer of the ADOBE software program on two (2)
computers.8 (Emphasis supplied)
Second computer
They also observed that New Fields had 90 computers in their office with Microsoft
software, none of which had the Certificate of Authenticity issued by Microsoft.
After being informed of the resultsof the investigation, petitioners then issued
certifications that they have not authorized New Fields to "copy, print, reproduce and/or
publish unauthorized copies of Microsoft and Adobe software products."9
An application for search warrants was filed by Padilla on 20 May 2010, before Judge
Amor Reyes in her capacity as Executive Judge of the RTC. Search Warrant Nos. 10-
15912 and 10-15913 were issued on the same date.10
The warrants were served on respondents on 24 May 2010. New Fields employees
witnessed the search conducted by the authorities. Several items were seized, including
17 CD installers and 83 computers containing unauthorized copies of Microsoft and/or
Adobe software.
On 6 June 2010, New Fields filed a motion seeking to quash one of the two warrants
served (Search Warrant No. 10-15912).11 The motion was received by petitioners on 10
June 2010 and was set for hearing on 11 June 2010. During the hearing on the motion,
petitioners were allowed by the RTC to file their Comment/Opposition on or before 21
June 2010.12
In their Comment/Opposition dated 21 June 2010, 13 petitioners alleged that:
The Motion [to Quash] failed to comply with the mandatory 3-day notice rule under the
Rules of Court. Hence it is nothing but a worthless piece of paper.
xxxx
In this case, the Motion of Respondents was scheduled for hearing on 11 June 2010.
However, Respondents only furnished [petitioners] a copy of the Motion on 10 June
2010, or just1 day before the scheduled hearing, which was in clear violation of the 3-day
notice rule.14
On 29 June 2010, the RTC issued an Order quashing both warrants and directing that
"allthe items seized from the respondents be returned x x x." 15 According to the RTC,
petitionersshould have identified which specific computer had the pirated software. 16 The
RTC added that no criminal charge has been filed yet, despite the fact that the seized
items have been in petitioners’ possession for several weeks since the warrants were
issued. Lastly, the RTC dismissed the petitioners’ contention that the threeday notice rule
was not complied withbecause petitioners were already notified of the motion
personally.17
On 8 July 2010, petitioners receiveda copy of the Order, and Deputy Sheriff Edgardo
Reyes of the RTC alsoeffected the return of the seized items, in compliance with the
RTC’s Order.18 Petitioners filed an Urgent Manifestation and Motion for the Issuance of a
Status Quo Order on 8 July 2010 wherein they alleged that: (1) they intend to file a
Motion for Reconsideration of the Order; and (2) the Order was not immediately
executory.19 Respondents received a copy of the motion the day it was filed.
On 9 July 2010, respondents moved to expunge petitioners’ motion for reconsideration,
saying that petitioners failed to comply with the threeday notice rule. 20 The hearing on the
motion was set on 13 July 2010. A copy of the motion was received by petitioners on 20
July 2010.21
On 15 July 2010, petitioners filed a motion for reconsideration of the
Order.22 Respondents filed their Comment/Opposition23 to the motion, which was received
by petitioners on 12 August 2010.24
The RTC denied petitioners’ motion for reconsideration in its Order dated 27 August
2010.25 Petitioners filed a petition for certiorari26 under Rule 65 on 8 November 2010
before the Court of Appeals. Petitioners alleged that the RTC committed grave abuse of
discretion in granting the Motion to Quash despite: (1) respondents’ failure to comply with
the three-day notice requirement; and (2) the existence of probable cause, and personal
knowledge of the warrant applicant.
The Ruling of the CA
The CA denied the petition for certiorari. The appellate court held that:
In the instant case, when the court a quoordered petitioners to submit their comment on
the motion toquash, it was, in effect, giving petitioners their day in court. Thus, while the
[three]-day notice rule was not strictly observed, its purpose was still satisfied when
respondent judge did not immediately rule on the motion giving petitioners x x x the
opportunity to study and oppose the arguments stated in the motion. 27
Hence, this petition.
The Issue
The instant petition raisedonly one issue, to wit:
The Honorable Court of Appeals erred in ruling that Judge Amor Reyes of Branch 21,
Regional Trial Court of Manila did not commit grave abuse of discretion amounting to
lack or excess of jurisdiction in issuing its Orders dated 29 June2010 and 27 August
2010, quashing Search Warrant Nos. 10-[1]5912 and 10-[1]5913 and directing the
immediate release of the items seized pursuant to the said warrants, despite the
pendency of appellate proceedings.28
The Ruling of the Court
We rule that strict compliance with the three-day notice rule may be relaxed in this case.
However, we sustain petitioners’ contention that there was probable cause for issuance
of a warrant, and the RTC and CA should have upheld the validity of both warrants.
Compliance with the three-day notice rule
In Anama v. Court of Appeals,29 we ruled that the three-day notice rule is not absolute.
The purpose of the ruleis to safeguard the adverse party’s right to due process. Thus, if
the adverse party was given a reasonable opportunity to study the motion and oppose it,
then strict compliance with the three-day notice rule may be dispensed with.
As correctly pointed out by the CA:
In the instant case, when the court a quoordered petitioners to submit their comment on
the motion toquash, it was, in effect, giving petitioners their day in court. Thus, while the
[three]-day notice rule was not strictly observed, its purpose was still satisfied when
respondent judge did not immediately rule on the motion giving petitioners x x x the
opportunity to study and oppose the arguments stated in the motion.30
Existence of probable cause
Under Section 1 of Rule 45 of the Rules of Court, petitions for review by certiorari "shall
raise only questions of law." A question of fact exists when there is a doubt as to the
truth of certain facts, and it can only be resolved through a reexamination of the body of
evidence.31
In Microsoft Corporation v. Maxicorp, Inc.,32 we ruled that the existence of probable cause
is a question of fact.33 In the same case, we also stated that:
Probable cause is dependent largely on the opinion and findings of the judge who
conducted the examination and who had the opportunity to question the applicant and
his witnesses. For this reason, the findings of the judge deserve great weight. The
reviewing court should overturn such findings only upon proof that the judge disregarded
the facts before him or ignored the clear dictates of reason. 34
This Court is not a trier of facts. As a general rule, we defer to the lower courts’
appreciation and evaluation of evidence. 35 This general rule, however, is not absolute.
We will review the factual findings of the CA in any of the following instances:
(1) when the factual findings of the Court of Appeals and the trial court are
contradictory;
(2) when the conclusion is a finding grounded entirely on speculation, surmises,
or conjectures; (3) when the inference made by the Court of Appeals from its
findings of fact is manifestly mistaken, absurd, or impossible;
(4) when there is a grave abuse of discretion in the appreciation of facts;
(5) when the Appellate Court, in making its findings, went beyond the issues of
the case and such findings are contrary to the admissions of both appellant and
appellee;
(6) when the judgment of the Court of Appeals is premised on a misapprehension
of facts;
(7) when the Court of Appeals failed to notice certain relevant facts which, if
properly considered, would justify a different conclusion;
(8) when the findings of fact are themselves conflicting;
(9) when the findings of fact are conclusions without citation of the specific
evidence on which they are based; and
(10) when the findings of fact of the Court of Appeals are premised on the
absence of evidence but such findings are contradicted by the evidence on
record.36
In this case, we find reason to overturn the rulings of the RTC and CA, since there was
grave abuse of discretion in the appreciation of facts. The CA sustained the quashal of
the warrant because the witnesses had "no personal knowledge of the facts upon which
the issuance of the warrants may be justified," 37 and the applicants and the witnesses
merely relied on the screen shots acquired from the confidential informant. 38
We disagree with the conclusions of the CA. The assailed CA Decision itself stated:
Initial hearsay information or tips from confidential informants could very well serve as
basis for the issuance of a search warrant, if followed up personally by the recipient and
validated.39 Looking at the records, it is clear that Padilla and his companions were able
to personally verify the tipof their informant. In his Affidavit submitted to Judge Amor
Reyes prior to the issuance of the warrant, Padilla stated that:
At the time that I was inside the office premises of the NEW FIELDS, I saw the Product
Keys or Product Identification Numbers of the ADOBE and MICROSOFT computer
software programs installed in some of the computer units. Ms. Serrano and Mr.
Moradoz were able to pull up these data since they were allowed to use some of the
computers of the target companies in line with the pretext that we used to gain entry into
NEW FIELDS. I actively read and attentively observed the information reflected from the
monitor display unit of the computers that Ms. Serrano and Mr. Moradoz were able to
use. x x x.40
As mentioned earlier, Padilla has been trained to distinguish illegally reproduced Adobe
and Microsoft software. Thus, in his Affidavit, he stated that:
xxxx
6. I suspect that the ADOBE and MICROSOFT computer software programs that are
being used in the premises of NEW FIELDS are unauthorized, illegal or unlicensed
copies because of the following reasons:
6.1. At least two (2) computer units are using a common Product Identification Number of
MICROSOFT and ADOBE software. This is one indication that the software being used
1âwphi1
is unlicensed or was illegally reproduced or copied. All ADOBE and MICROSOFT
computer software programs should only be used in one computer unit, unless they avail
of an Open License Agreement from the computer software developer, which [was not
obtained by] NEW FIELDS. x x x.41
The evidence on record clearly shows that the applicant and witnesses were able to
verify the information obtained from their confidential source. The evidence likewise
shows that there was probable cause for the issuance of a search warrant. Thus, the
requirement of personal knowledge of the applicant and witnesses was clearly satisfied
in this case.
WHEREFORE, the petition is GRANTED. The Decision dated 28 June 2012 and the
Resolution dated 30 January 2013 of the Court of Appeals, uph0lding the 29 June 2010
and 27 August 2010 Orders of the Regional Trial Court, are hereby REVERSED and
SET ASIDE. Search Warrant Nos. 10-15912 and 10-15913 are declared valid.
SO ORDERED.
G.R. No. 176033
FELILIBETH AGUINALDO and BENJAMIN PEREZ, Petitioners,
vs.
REYNALDO P. VENTUS and JOJO B. JOSON, Respondents.
DECISION
PERALTA, J.:
Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of
Court, seeking to nullify and set aside the Decision1 dated August 11, 2006 of the Court
of Appeals (CA) and its December 4, 2006 Resolution2 in CA-G.R. SP No. 92094. The
CA dismissed for lack of merit the Petition for Certiorari under Rule 65 filed by petitioners
Felilibeth Aguinaldo and Benjamin Perez, praying for the following reliefs: (1) the
issuance of a Writ of Preliminary Injunction and/or Temporary Restraining Order to enjoin
the public respondent Judge Felixberto T. Olalia from implementing the Orders dated
May 16, 2005 and August 23, 2005; (2) the issuance of a Writ of Certiorari to annul the
said Orders, and (3) the dismissal of the estafa case against them for having been
prematurely filed and for lack of cause of action.
The procedural antecedents are as follows:
On December 2, 2002, private respondents Reynaldo P. Ventus and Jojo B. Joson filed
a Complaint-Affidavit3 for estafa against petitioners Aguinaldo and Perez before the
Office of the City Prosecutor (OCP) of Manila. Claiming to be business partners in
financing casino players, private respondents alleged that sometime in March and April
2002, petitioners connived in convincing them to part with their Two Hundred Sixty
Thousand (P260,000.00) Pesos in consideration of a pledge of two motor vehicles which
the latter had misrepresented to be owned by Aguinaldo, but turned out to be owned by
one Levita De Castro, manager/operator of LEDC Rent-A-Car.
On January 15, 2003, Perez filed his Counter-Affidavit,4 denying the accusation against
him, and claiming that his only participation in the transaction between private
respondents and Aguinaldo was limited to having initially introduced them to each other.
On January 22, 2003, private respondents filed their Reply-Affidavit,5 asserting that Perez
was the one who showed them photocopies of the registration paper of the motor
vehicles in the name of Aguinaldo, as well as the one who personally took them out from
the rent-a-car company.
On January 29, 2003, Perez filed his Rejoinder-Affidavit,6 stating that neither original nor
photocopies of the registration was required by private respondents to be submitted to
them because from the very start, they were informed by Aguinaldo that she merely
leased the vehicles from LEDC Rent-a-Car.
On February 25, 2003, Assistant City Prosecutor (ACP) Renato F. Gonzaga issued a
Resolution7 recommending both petitioners to be indicted in court for estafa under Article
315, paragraph (2) of the Revised Penal Code (RPC). He also noted that Aguinaldo
failed to appear and to submit any controverting evidence despite the subpoena.
On July 16, 2003, an Information8 (I.S. No. 02L-51569) charging petitioners with the
crime of estafa under Article 315, paragraph 2 (a) of the RPC was filed with the Regional
Trial Court of Manila. Docketed as Criminal Case No. 03-216182, entitled "People of the
Philippines v. Felilibeth Aguinaldo and Benjamin Perez," the case was raffled to the
public respondent.
On July 31, 2003, Perez was arrested, so he filed an Urgent Motion for Reduction of Bail
to be Posted in Cash, which the public respondent granted in an Order of even date. 9
On the same day, petitioners filed through counsel a Very Urgent Motion to Recall or
Quash Warrants of Arrest,10 alleging that the Resolution dated February 25, 2003 has not
yet attained finality, and that they intended to file a motion for reconsideration.
On August 4, 2003, petitioners jointly filed with the OCP of Manila their "Motion for
Reconsideration and Motion for the Withdrawal of the Information Prematurely Filed With
the Regional Trial Court, Branch 8, City of Manila." 11 Citing the Counter-Affidavit and
Rejoinder-Affidavit of Perez, Aguinaldo asserted, among others, that no deceit or false
pretenses was committed because private respondents were fully aware that she does
not own the pledged motor vehicles.
On August 6, 2003, the public respondent issued an Order 12 granting the motion for
withdrawal of information, and directing the recall of the arrest warrant only insofar as
Aguinaldo was concerned, pending resolution of her motion for reconsideration with the
OCP.
On August 9, 2003, petitioners filed an Urgent Motion for Cancellation of Arraignment,
pending resolution of their motion for reconsideration filed with the OCP of Manila. Upon
the prosecution's motion,13 the public respondent ordered the proceedings to be deferred
until the resolution of petitioners' motion for reconsideration. 14
On December 23, 2003, the public respondent ordered the case archived pending
resolution of petitioners' motion for reconsideration with the OCP of Manila. 15
On January 16, 2004, the OCP of Manila, through ACP Antonio M. Israel, filed a Motion
to Set Case for Trial,16 considering that petitioners' motions for reconsideration and for
withdrawal of the information have already been denied for lack of merit.
On February 27, 2004, petitioners filed with the Department of Justice (DOJ) a petition
for review17 in I.S. No. 02L-51569 for estafa, entitled "Benjamin Perez and Felilibeth
Aguinaldo v. Reynaldo P. Ventus and Jojo B. Joson."
Acting on the prosecution's recommendation for the denial of petitioners' motions for
reconsideration and withdrawal of the information, and its motion to set the case for trial,
the public respondent issued an Order18 dated March 15, 2004 directing the issuance of a
warrant of arrest against Aguinaldo and the setting of the case for arraignment.
On March 26, 2004, petitioners filed an Urgent Motion to Cancel Arraignment and
Suspend Further Proceedings,19 until their petition for review before the DOJ is resolved
with finality. Petitioners reiterated the same prayer in their Urgent Motion for
Reconsideration20 of the Order dated March 15, 2004.
On April 16, 2004, the public respondent granted petitioners' urgent motion to cancel
arraignment and suspend proceedings, and motion for reconsideration. 21
On June 23, 2004, Levita De Castro, through the Law Firm of Lapeña and Associates,
filed a Motion to Reinstate Case and to Issue Warrant of Arrest. 22 De Castro alleged that
she was the private complainant in the estafa case that had been ordered archived.
Petitioners filed an Opposition with Motion to Expunge, 23 alleging that De Castro is not a
party to the said case, which is in active file, awaiting the resolution of their petition for
review before the DOJ.
On October 15, 2004, De Castro filed a Manifestation24 informing the public respondent
that the DOJ had already promulgated a Resolution dated September 6, 2004 denying
petitioners' petition for review in I.S. No. 02G- 29349 & 02G-28820 for estafa, entitled
"Levita De Castro v. Felilibeth Aguinaldo."25
On May 16, 2005, the public respondent issued an Order granting the Motion to
Reinstate Case and to Issue Warrant of Arrest, thus:
Pending with this Court are (1) Motion to Reinstate Case and to Issue Warrant of Arrest
against accused Aguinaldo filed by private prosecutor with conformity of the public
prosecutor. x x x
It appears from the records that:
 (1)the warrant of arrest issued against accused Aguinaldo was recalled pending
resolution of the Petition for Review filed with the DOJ; x x x
(2)the Petition for Review was subsequently dismissed
xxx
(3)accused Aguinaldo has not yet posted bail bond.
In view of the foregoing, (the) Motion to Reinstate Case and to Issue Warrant of Arrest is
GRANTED. Let this case be REINSTATED and let warrant of arrest be issued against
accused Aguinaldo.
xxxx
SO ORDERED.26
On May 30, 2005, petitioners filed a Motion for Reconsideration with Motion to Quash
Warrant of Arrest.27
On August 23, 2005, the public respondent issued an Order denying petitioners' Motion
for Reconsideration with Motion to Quash Warrant of Arrest, and setting petitioners'
arraignment, as the Revised Rules on Criminal Procedure (or Rules of Court) allows only
a 60-day period of suspension of arraignment. Citing Crespo v. Mogul, 28 he also ruled
that the issuance of the warrant of arrest is best left to the discretion of the trial court. He
also noted that records do not show that the DOJ has resolved the petition for review,
although photocopies were presented by De Castro.
Aggrieved, petitioners filed with the CA a Petition for Certiorari under Rule 65 of the
Rules of Court, attributing grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the public respondent in issuing the Orders dated May 16, 2005
and August 23, 2005. On August 11, 2006, the CA dismissed the petition for lack of
merit. Petitioners filed a motion for reconsideration, but the CA denied it in a
Resolution29 dated December 4, 2006. Hence, this instant petition for review on certiorari.
Petitioners raise the following issues:
I.
THE HONORABLE COURT OF APPEALS FAILED TO APPRECIATE THAT THE
MOTION TO REINSTATE THE CASE AND ISSUE A WARRANT OF ARREST WAS
FILED BY ONE LEVITA DE CASTRO WHO IS NOT A PARTY TO CRIMINAL CASE NO.
03-21[6]182.
II.
A PROCEDURAL TECHINICALITY THAT THE SUSPENSION ALLOWED FOR
ARRAIGNMENT IS ALREADY BEYOND THE 60- DAY PERIOD MAY BE RELAXED IN
THE INTEREST OF AN ORDERLY AND SPEEDY ADMINISTRATION OF JUSTICE.
III.
THE PRELIMINARY INVESTIGATION ON THE I.S. NO. 02L-51569 (CRIMINAL CASE
NO. 03-21[6]182) BY THE OFFICE OF THE CITY PROSECUTOR OF MANILA HAS
NOT YET BEEN COMPLETED.30
On the first issue, petitioners argue that the public respondent erred in issuing the Order
dated May 16, 2005 reinstating the case and issuing an arrest warrant against
Aguinaldo. They point out that the Motion to Reinstate the Case and to Issue a Warrant
of Arrest against Aguinaldo was filed by De Castro who is not a party in Criminal Case
No. 03-216182, entitled "People of the Philippines v. Felilibeth Aguinaldo and Benjamin
Perez," instead of private complainants Reynaldo P. Ventus and Jojo B. Joson. They
also assert that said motion was erroneously granted based on the purported denial of
their petition for review by the DOJ, despite a Certification showing that their actual
petition in I.S. Number 02L-51569, entitled "Reynaldo Ventus, et al. v. Felilibeth
Aguinaldo," has not yet been resolved and is still pending with the DOJ.
On the second issue, petitioners argue that the provision of Section 11, Rule 116 of the
Rules of Court limiting the suspension for arraignment to only sixty (60) days is merely
directory; thus, it cannot deprive petitioners of their procedural right to due process, as
their petition for review has not yet been resolved by the DOJ.
On the third issue, petitioners take exception that even before they could receive a copy
of the DOJ resolution denying their petition for review, and thus move for its
reconsideration, the Information in Criminal Case No. 03-216182 had already been filed
with the RTC on July 16, 2003. They contend that such precipitate filing of the
Information and issuance of a warrant of arrest put petitioners at the risk of incarceration
without the preliminary investigation having been completed because they were not
afforded their right to file a motion for reconsideration of the DOJ resolution. In support of
their contention, they raise the following arguments: that the right to preliminary
investigation is a substantive, not merely a procedural right; that an Information filed
without affording the respondent his right to file a motion for reconsideration of an
adverse resolution, is fatally premature; and, that a denial of a complete preliminary
investigation deprives the accused of the full measure of his right to due process and
infringes on his constitutional right to liberty.
The petition is denied for lack of merit.
On the first issue, petitioners are correct in pointing out that the Motion to Reinstate the
Case and Issue a Warrant of Arrest31 was filed by one Levita De Castro who is not a
party to Criminal Case No. 03-216182. Records show that De Castro is not even a
private complainant, but a mere witness for being the owner of the vehicles allegedly
used by petitioners in defrauding and convincing private respondents to part with their
P260,000.00. Thus, the public respondent should have granted petitioners' motion to
expunge, and treated De Castro's motion as a mere scrap of paper with no legal effect,
as it was filed by one who is not a party to that case.
Petitioners are also correct in noting that De Castro's motion was granted based on the
purported dismissal of their petition for review with the DOJ. In reinstating the case and
issuing the arrest warrant against Aguinaldo, the public respondent erroneously relied on
the DOJ Resolution dated September 6, 2004 dismissing the petition for review in a
different case, i.e., I.S. No. 02G-29349 & 02G-28820, entitled "Levita De Castro v.
Felilibeth Aguinaldo, for two (2) counts of estafa." As correctly noted by petitioners,
however, their petition for review with the DOJ is still pending resolution. In particular,
Assistant Chief State Prosecutor Miguel F. Guido, Jr. certified that based on available
records of the Office of the Chief State Prosecutor, their petition for review filed in I.S.
Number 02L-51569, entitled "Reynaldo Ventus, et al. v. Felilibeth Aguinaldo" for estafa,
is still pending resolution as of May 27, 2005.32 It bears stressing that their petition
stemmed from Criminal Case No. 03-216812, entitled "People of the Philippines v.
Felilibeth Aguinaldo and Benjamin Perez" wherein the public respondent issued the
interlocutory orders assailed before the CA, and now before the Court.
On the second issue, the Court disagrees with petitioners' contention that the provision
of Section 11 (c),33 Rule 116 of the Rules of Court limiting the suspension for arraignment
to only sixty (60) days is merely directory; thus, the estafa case against them cannot
proceed until the DOJ resolves their petition for review with finality.
In Samson v. Judge Daway,34 the Court explained that while the pendency of a petition
for review is a ground for suspension of the arraignment, the aforecited provision limits
the deferment of the arraignment to a period of 60 days reckoned from the filing of the
petition with the reviewing office. It follows, therefore, that after the expiration of said
period, the trial court is bound to arraign the accused or to deny the motion to defer
arraignment.35
In Diño v. Olivarez,36 the Court held that it did not sanction an indefinite suspension of the
proceedings in the trial court. Its reliance on the reviewing authority, the Justice
Secretary, to decide the appeal at the soonest possible time was anchored on the rule
provided under Department Memorandum Order No. 12, dated 3 July 2000, which
mandates that the period for the disposition of appeals or petitions for review shall be
seventy- five (75) days.37
In Heirs of Feraren v. Court of Appeals, 38 the Court ruled that in a long line of decisions, it
has repeatedly held that while rules of procedure are liberally construed, the provisions
on reglementary periods are strictly applied, indispensable as they are to the prevention
of needless delays, and are necessary to the orderly and speedy discharge of judicial
business. After all, rules of procedure do not exist for the convenience of the litigants,
and they are not to be trifled with lightly or overlooked by the mere expedience of
invoking "substantial justice." Relaxation or suspension of procedural rules, or the
exemption of a case from their operation, is warranted only by compelling reasons or
when the purpose of justice requires it.39
Consistent with the foregoing jurisprudence, and there being no such reasons shown to
warrant relaxation of procedural rules in this case, the CA correctly ruled, thus:
In the case at bar, the petitioners' petition for review was filed with the Secretary of
Justice on February 27, 2004. As early as April 16, 2004, upon the petitioners' motion,
the arraignment of the petitioners herein was ordered deferred by the public respondent.
We believe that the period of one year and one month from April 16, 2004 to May 16,
2005 when the public respondent ordered the issuance of a warrant for the arrest of
petitioner Aguinaldo, was more than ample time to give the petitioners the opportunity to
obtain a resolution of their petition for review from the DOJ. The petitioners though
submitted a Certification from the DOJ dated May 30, 2005 stating that their petition for
review is pending resolution by the Department as of May 27, 2005. However, such
delay in the resolution does not extend the period of 60 days prescribed under the afore-
quoted Section 11(c), Rule 116 of the Revised Rules on Criminal Procedure. Besides,
the petitioners may be faulted for the delay in the resolution of their petition. According to
their counsel, she received the letter dated April 15, 2004 from the DOJ requiring her to
submit the pertinent pleadings relative to petitioners' petition for review; admittedly,
however, the same was complied with only on October 15, 2004. We therefore find that
the trial court did not commit grave abuse of discretion in issuing the assailed orders. 40
On the third issue, the Court is likewise unconvinced by petitioners' argument that the
precipitate filing of the Information and the issuance of a warrant of arrest put petitioners
at the risk of incarceration without the preliminary investigation having been completed
because they were not afforded their right to file a motion for reconsideration of the DOJ
resolution.
While they are correct in stating that the right to preliminary investigation is a substantive,
not merely a procedural right, petitioners are wrong in arguing that the Information filed,
without affording the respondent his right to file a motion for reconsideration of an
adverse DOJ resolution, is fatally premature. In support of their argument, petitioners cite
Sales v. Sandiganbayan41 wherein it was held that since filing of a motion for
reconsideration is an integral part of the preliminary investigation proper, an Information
filed without first affording the accused his right to a motion for reconsideration, is
tantamount to a denial of the right itself to a preliminary investigation.
The Court finds petitioners' reliance on Sales42 as misplaced. A closer look into said case
would reveal that the accused therein was denied his right to move for a reconsideration
or a reinvestigation of an adverse resolution in a preliminary investigation under the
Rules of Procedure of the Ombudsman before the filing of an Information. In contrast,
petitioners in this case were afforded their right to move for reconsideration of the
adverse resolution in a preliminary investigation when they filed their "Motion for
Reconsideration and Motion for the Withdrawal of Information Prematurely Filed with the
Regional Trial Court, Branch 8, City of Manila," 43 pursuant to Section 3 of the 2000
National Prosecution Service (NPS Rule on Appeal) 44 and Section 56 of the Manual for
Prosecutors45 .
With the Information for estafa against petitioners having been filed on July 16, 2003, the
public respondent cannot be faulted with grave abuse of discretion in issuing the August
23, 2005 Order denying their motion to quash warrant of arrest, and setting their
arraignment, pending the final resolution of their petition for review by the DOJ. The
Court believes that the period of almost one (1) year and seven (7) months from the time
petitioners filed their petition for review with the DOJ on February 27, 2004 to September
14, 200546 when the trial court finally set their arraignment, was more than ample time to
give petitioners the opportunity to obtain a resolution of their petition. In fact, the public
respondent had been very liberal with petitioners in applying Section 11 (c), Rule 116 of
the Rules of Court which limits the suspension of arraignment to a 60-day period from
the filing of such petition. Indeed, with more than eleven (11) years having elapsed from
the filing of the petition for review and petitioners have yet to be arraigned, it is now high
time for the continuation of the trial on the merits in the criminal case below, as the 60-
day period counted from the filing of the petition for review with the DOJ had long lapsed.
On whether petitioners were accorded their right to a complete preliminary investigation
as part of their right to due process, the Court rules in the affirmative. Having submitted
his Counter-Affidavit and Rejoinder- Affidavit to the OCP of Manila before the filing of
Information for estafa, Perez cannot be heard to decry that his right to preliminary
investigation was not completed. For her part, while Aguinaldo was not personally
informed of any notice of preliminary investigation prior to the filing of the Information,
she was nonetheless given opportunity to be heard during such investigation. In
petitioners' motion for reconsideration47 of the February 25, 2003 Resolution of ACP
Gonzaga, Aguinaldo relied mostly on the Counter- Affidavit and Rejoinder-Affidavit of
Perez to assail the recommendation of the prosecutor to indict her for estafa. Since the
filing of such motion for reconsideration was held to be consistent with the principle of
due process and allowed under Section 56 of the Manual for Prosecutors, 48 she cannot
complain denial of her right to preliminary investigation.
Both petitioners cannot, therefore, claim denial of their right to a complete preliminary
investigation as part of their right to due process. After all, "[d]ue process simply
demands an opportunity to be heard. Due process is satisfied when the parties are
afforded a fair and reasonable opportunity to explain their respective sides of the
controversy. Where an opportunity to be heard either through oral arguments or through
pleadings is accorded, there is no denial of procedural due process."49
In fine, the Court holds that public respondent erred in issuing the May 16, 2005 Order
granting the Motion to Reinstate Case and to Issue Warrant of Arrest, as it was filed by
one who is not a party to the case, and it was based on the DOJ's dismissal of a petition
for review in a different case. Nevertheless, the Court upholds the CA ruling that the
public respondent committed no grave abuse of discretion when he issued the August
23, 2005 Order denying petitioners' motion to quash warrant of arrest, and setting their
arraignment, despite the pendency of their petition for review with the DOJ. For one, the
public respondent had been very liberal in applying Section 11 (c), Rule 116 of the Rules
of Court which allows suspension of arraignment for a period of 60 days only. For
another, records show that petitioners were given opportunity to be heard during the
preliminary investigation of their estafa case.
Considering that this case had been held in abeyance long enough without petitioners
having been arraigned, the Court directs the remand of this case to the trial court for trial
on the merits with strict observance of Circular No. 38-98 dated August 11, 1998, or the
"Implementing the Provisions of Republic Act No. 8493, entitled 'An Act to Ensure a
Speedy Trial of All Criminal Cases Before the Sandiganbayan, Regional Trial Court,
Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court and
Municipal Circuit Trial Court, Appropriating Funds Therefor, and for Other Purposes.'" In
this regard, suffice it to state that petitioners cannot invoke violation of their right to
speedy trial because Section 9 (3) of Circular No. 38-98 excludes in computing the time
within which trial must commence the delay resulting from extraordinary remedies
against interlocutory orders, such as their petitions before the CA and the Court.
Finally, in order to avoid delay in the proceedings, judges are reminded that the
pendency of a motion for reconsideration, motion for reinvestigation, or petition for review
is not a cause for the quashal of a warrant of arrest previously issued because the
quashal of a warrant of arrest may only take place upon the finding that no probable
cause exists. Moreover, judges should take note of the following:
1.If there is a pending motion for reconsideration or motion for reinvestigation of the
resolution of the public prosecutor, the court may suspend the proceedings upon motion
by the parties. However, the court should set the arraignment of the accused and direct
the public prosecutor to submit the resolution disposing of the motion on or before the
period fixed by the court, which in no instance could be more than the period fixed by the
court counted from the granting of the motion to suspend arraignment, otherwise the
court will proceed with the arraignment as scheduled and without further delay.
2.If there is a pending petition for review before the DOJ, the court may suspend the
proceedings upon motion by the parties. However, the court should set the arraignment
of the accused and direct the DOJ to submit the resolution disposing of the petition on or
before the period fixed by the Rules which, in no instance, could be more than sixty (60)
days from the filing of the Petition for Review before the DOJ, otherwise, the court will
proceed with the arraignment as scheduled and without further delay.
WHEREFORE, premises considered, the petition is DENIED. The Decision dated August
11, 2006 of the Court of Appeals and its Resolution dated December 4, 2006 in CA-G.R.
SP No. 92094, are AFFIRMED. Considering that the proceedings in this criminal case
had been held in abeyance long enough, let the records of this case be remanded to the
trial court which is hereby DIRECTED to try the case on the merits with dispatch in
accordance with the Court's Circular No. 38-98 dated August 11, 1998.
SO ORDERED.
G.R. No. 189669 February 16, 2015
PILIPINAS SHELL PETROLEUM CORPORATION and PETRON
CORPORATION, Petitioners,
vs.
ROMARS INTERNATIONAL GASES CORPORATION, Respondent.
DECISION
PERALTA, J.:
This deals with the Petition for Review on Certiorari under Rule 45 of the Rules of Court
praying that the Decision1 of the Court of Appeals (CA), dated March 13, 2009, and the
Resolution2 dated September 14, 2009, denying petitioner's motion for reconsideration
thereof, be reversed and set aside.
The antecedent facts are:
Petitioners received information that respondent was selling, offering for sale, or
distributing liquefied petroleum gas (LPG) by illegally refilling the steel cylinders
manufactured byand bearing the duly registered trademark and device of respondent
Petron. Petron then obtained the services of a paralegal investigation team who sent
their people to investigate. The investigators went to respondent's premises located in
San Juan, Baao, Camarines Sur, bringing along four empty cylinders of Shellane, Gasul,
Total and Superkalan and asked that the same be refilled. Respondent's employees then
refilled said empty cylinders at respondent's refilling station. The refilled cylinders were
brought to the Marketing Coordinator of Petron Gasul who verified that respondent was
not authorized to distribute and/or sell, or otherwise deal with Petron LPG products,
and/or use or imitate any Petron trademarks. Petitioners then requested the National
Bureau of Investigation (NBI) to investigate said activities of respondent for the purpose
of apprehending and prosecuting establishments conducting illegal refilling, distribution
and/or sale of LPG products using the same containers of Petron and Shell, which acts
constitute a violation of Section 168,3 in relation to Section 1704 of Republic Act (R.A.)
No. 8293, otherwise known as the Intellectual Property Code of the Philippines, and/or
Section 25 of R.A. No. 623, otherwise known as An Act To Regulate the Use of Duly
Stamped or Marked Bottles, Boxes, Casks, Kegs, Barrels and Other Similar Containers.
The NBI proceeded with their investigation and reportedly found commercial quantities of
Petron Gasul and Shellane cylinders stockpiled at respondent's warehouse. They also
witnessed trucks coming from respondent's refilling facility loaded with Gasul, Shellane
and Marsflame cylinders, which then deposit said cylinders in different places, one of
them a store called "Edrich Enterprises" located at 272 National Highway, San Nicolas,
Iriga City. The investigators then bought Shellane and Gasul cylinders from Edrich
Enterprises, for which they were issued an official receipt.
Thus, the NBI, in behalf of Petron and Shell, filed with the Regional Trial Court of Naga
City (RTC-Naga), two separate Applications for Search Warrant for Violation of Section
155.1,6 in relation to Section 1707 of R.A. No. 8293 against respondent and/or its
occupants. On October 23, 2002, the RTC-Naga City issued an Order granting said
Applications and Search Warrant Nos. 2002-27 and 2002-28 were issued. On the same
day, the NBI served the warrants at the respondent's premises in an orderly and
peaceful manner, and articles or items described in the warrants were seized.
On November 4, 2002, respondent filed a Motion to Quash Search Warrant Nos. 2002-
27 and 2002-28, where the only grounds cited were: (a) there was no probable cause;
(b) there had been a lapse of four weeks from the date of the test-buy to the date of the
search and seizure operations; (c) most of the cylinders seized were not owned by
respondent but by a third person; and (d) Edrich Enterprises is an authorized outlet of
Gasul and Marsflame. In an Order dated February 21, 2003, the RTC-Naga denied the
Motion to Quash.
However, on March 27,2003, respondent's new counsel filed an Appearance with Motion
for Reconsideration. It was only in said motion where respondent raised for the first time,
the issue of the impropriety of filing the Application for Search Warrant at the RTC-Naga
City when the alleged crime was committed in a place within the territorial jurisdiction of
the RTC-Iriga City. Respondent pointed out that the application filed with the RTC-Naga
failed to state any compelling reason to justify the filing of the same in a court which does
not have territorial jurisdiction over the place of the commission of the crime, as required
by Section 2 (b), Rule 126 of the Revised Rules of Criminal Procedure. Petitioner
opposed the Motion for Reconsideration, arguing that it was already too late for
respondent to raise the issue regarding the venue of the filing of the application for
search warrant, as this would be in violation of the Omnibus Motion Rule.
In an Order dated July 28, 2003,the RTC-Naga issued an Order granting respondent's
Motion for Reconsideration, thereby quashing Search Warrant Nos. 2002-27 and 2002-
28.
Petitioner then appealed to the CA, but the appellate court, in its Decision dated March
13,2009, affirmed the RTC Order quashing the search warrants. Petitioner's motion for
reconsideration of the CA Decision was denied per Resolution dated September 14,
2009.
Elevating the matter to this Court via a petition for review on certiorari, petitioner presents
herein the following issues:
A.
THE COURT OF APPEALS GRAVELY ERRED IN RULING THAT VENUE IN AN
APPLICATION FOR SEARCH WARRANT IS JURISDICTIONAL. THIS IS BECAUSE A
SEARCH WARRANT CASE IS NOT A CRIMINAL CASE.
B.
THE COURT OF APPEALS GRAVELY ERRED IN RULING THAT RESPONDENT'S
MOTION TO QUASHIS NOT SUBJECT TO THE OMNIBUS MOTION RULE AND
THATTHE ISSUE OF LACK OF JURISDICTION MAY NOT BE WAIVED AND MAY
EVEN BE RAISED FOR THE FIRST TIME ON APPEAL.8
Petitioner's arguments deserve closer examination.
Section 2, Rule 126 of the Revised Rules of Criminal Procedure provides thus:
SEC. 2. Court where applications for search warrant shall be filed. - An application for
search warrant shall be filed with the following:
(a) Any court within whose territorial jurisdiction a crime was committed.
(b) For compelling reasons stated in the application, any court within the judicial
region where the crime was committed if the place of the commission of the
crime is known, or any court within the judicial region where the warrant shall be
enforced.
However, if the criminal action has already been filed, the application shall only be made
in the court where the criminal action is pending. (Emphasis supplied)
The above provision is clear enough. Under paragraph (b) thereof, the application for
search warrant in this case should have stated compelling reasons why the same was
being filed with the RTC-Naga instead of the RTC-Iriga City, considering that it is the
latter court that has territorial jurisdiction over the place where the alleged crime was
committed and also the place where the search warrant was enforced. The wordings of
the provision is of a mandatory nature, requiring a statement of compelling reasons if the
application is filed in a court which does not have territorial jurisdiction over the place of
commission of the crime. Since Section 2, Article III of the 1987 Constitution guarantees
the right of persons to be free from unreasonable searches and seizures, and search
warrants constitute a limitation on this right, then Section 2, Rule 126 of the Revised
Rules of Criminal Procedure should be construed strictly against state authorities who
would be enforcing the search warrants. On this point, then, petitioner's application for a
search warrant was indeed insufficient for failing to comply with the requirement to state
therein the compelling reasons why they had to file the application in a court that did not
have territorial jurisdiction over the place where the alleged crime was committed.
Notwithstanding said failure to state the compelling reasons in the application, the more
pressing question that would determine the outcome of the case is, did the RTC-Naga
act properly in taking into consideration the issue of said defect in resolving respondent's
motion for reconsideration where the issue was raised for the very first time? The record
bears out that, indeed, respondent failed to include said issue at the first instance in its
motion to quash. Does the omnibus motion rule cover a motion to quash search
warrants?
The omnibus motion rule embodied in Section 8, Rule 15, in relation to Section 1, Rule 9,
demands that all available objections be included in a party's motion, otherwise, said
objections shall be deemed waived; and, the only grounds the court could take
cognizance of, even if not pleaded in said motion are: (a) lack of jurisdiction over the
subject matter; (b) existence of another action pending between the same parties for the
same cause; and (c) bar by prior judgment or by statute of limitations. 9 It should be
stressed here that the Court has ruled in a number of cases that the omnibus motion rule
is applicable to motions to quash search warrants.10 Furthermore, the Court distinctly
stated in Abuan v. People,11 that "the motion to quash the search warrant which the
accused may file shall be governed by the omnibus motion rule, provided, however, that
objections not available, existent or known during the proceedings for the quashal of the
warrant may be raised in the hearing of the motion to suppress x x x." 12
In accordance with the omnibus motion rule, therefore, the trial court could only take
cognizance of an issue that was not raised in the motion to quash if, (1) said issue was
not available or existent when they filed the motion to quash the search warrant; or (2)
the issue was one involving jurisdiction over the subject matter. Obviously, the issue of
the defect in the application was available and existent at the time of filing of the motion
to quash. What remains to be answered then is, if the newly raised issue of the defect in
the application is an issue of jurisdiction.
In resolving whether the issue raised for the first time in respondent's motion for
reconsideration was an issue of jurisdiction, the CA rationcinated, thus:
It is jurisprudentially settled that the concept of venue of actions in criminal cases, unlike
in civil cases, is jurisdictional. The place where the crime was committed determines not
only the venue of the action but is an essential element of jurisdiction. It is a fundamental
rule that for jurisdiction to be acquired by courts in criminal cases, the offense should
have been committed or any one of its essential ingredients should have taken place
within the territorial jurisdiction of the court. Territorial jurisdiction in criminal cases is the
territory where the court has jurisdiction to take cognizance or to try the offense allegedly
committed therein by the accused. Thus, it cannot take jurisdiction over a person
charged with an offense allegedly committed outside of that limited territory. 13
Unfortunately, the foregoing reasoning of the CA, is inceptionally flawed, because as
pronounced by the Court in Malaloan v. Court of Appeals, 14 and reiterated in the more
recent Worldwide Web Corporation v. People of the Philippines, 15 to wit:
x x x as we held in Malaloan v. Court of Appeals, an application for a search warrant is a
"special criminal process," rather than a criminal action:
The basic flaw in this reasoning is in erroneously equating the application for and the
obtention of a search warrant with the institution and prosecution of a criminal action in a
trial court. It would thus categorize what is only a special criminal process, the power to
issue which is inherent in all courts, as equivalent to a criminal action, jurisdiction over
which is reposed in specific courts of indicated competence. It ignores the fact that the
requisites, procedure and purpose for the issuance of a search warrant are completely
different from those for the institution of a criminal action.
For, indeed, a warrant, such as a warrant of arrest or a search warrant, merely
constitutes process. A search warrant is defined in our jurisdiction as an order in writing
1âwphi1
issued in the name of the People of the Philippines signed by a judge and directed to a
peace officer, commanding him to search for personal property and bring it before the
court. A search warrant is in the nature of a criminal process akin to a writ of discovery. It
is a special and peculiar remedy, drastic in its nature, and made necessary because of a
public necessity.
In American jurisdictions, from which we have taken our jural concept and provisions on
search warrants, such warrant is definitively considered merely as a process, generally
issued by a court in the exercise of its ancillary jurisdiction, and not a criminal action to
be entertained by a court pursuant to its original jurisdiction. x x x. (Emphasis supplied)
Clearly then, an application for a search warrant is not a criminal action. x x
x16 (Emphasis supplied)
The foregoing explanation shows why the CA arrived at the wrong conclusion. It gravely
erred in equating the proceedings for applications for search warrants with criminal
actions themselves. As elucidated by the Court, proceedings for said applications are not
criminal in nature and, thus, the rule that venue is jurisdictional does not apply thereto.
Evidently, the issue of whether the application should have been filed in RTC-Iriga City or
RTC-Naga, is not one involving jurisdiction because, as stated in the afore-quoted case,
the power to issue a special criminal process is inherent in all courts.
Inferring from the foregoing, the Court deems it improper for the RTC-Naga to have even
taken into consideration an issue which respondent failed to raise in its motion to quash,
as it did not involve a question of jurisdiction over the subject matter. It is quite clear that
the RTC-Naga had jurisdiction to issue criminal processes such as a search warrant.
Moreover, the Court must again emphasize its previous admonition in Spouses
Anunciacion v. Bocanegra,17 that:
We likewise cannot approve the trial court's act of entertaining supplemental motions x x
x which raise grounds that are already deemed waived. To do so would encourage
lawyers and litigants to file piecemeal objections to a complaint in order to delay or
frustrate the prosecution of the plaintiffs cause of action. 18
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals, dated
March 13, 2009, and the Resolution dated September 14, 2009 in CA-G.R. CV No.
80643 are REVERSED. The Order dated February 21, 2003 issued by the Regional Trial
Court of Naga, Camarines Sur, Branch 24, denying respondent's motion to quash, is
REINSTATED.
SO ORDERED.
G.R. No. 177600
MAYOR ANWAR BERUA BALINDONG, LT. COL. JALANDONI COTA, MAYOR
AMER ODEN BALINDONG, and ALI BALINDONG, Petitioners
vs.
COURT OF APPEALS, STATE PROSECUTOR LEAH ARMAMENTO, OFFICE OF
THE SOLICITOR GENERAL and ZENAIDA LIMBONA, Respondents
x-----------------------x
ZENAIDA M. LIMBONA, Petitioner,
vs.
HON. JUDGE ALEXANDERS. BALUT OF THE REGIONAL TRIAL COURT OF
QUEZON CITY, BRANCH 76, Respondent.
DECISION
BERSAMIN, J.:
The issuance by the trial court of the warrant of arrest upon filing of the information and
supporting papers implies the determination of probable cause for the offense charged. It
is then superfluous for the accused to seek the judicial determination of probable cause
on the pretext that the trial court should still act and proceed independently of the
executive determination of probable cause to charge the proper offense.
The Case
Before us are the consolidated cases of G.R. No. 177600 and G.R. No. 178684. G.R.
No. 177600 involves the appeal by petition for review on certiorari of Mayor Anwar Berua
Balindong, Lt. Col. Jalandoni Cota, Mayor Amer Oden Balindong, and Ali Balindong
(Balindong, et al.) to assail the Decision promulgated on April 24, 2007 by the Court of
Appeals (CA) in CA-G.R. SP No. 97121.1 G.R. No. 178684 relates to the Petition (To
Show Cause Why Respondent Should Not Be Held in Contempt of Court) 2 brought by
Zenaida M. Limbona (Limbona), the private complainant in the criminal cases instituted
against Balindong, et al., charging Presiding Judge Alexander S. Balut of the Regional
Trial Court (RTC), Branch 76, in Quezon City with contempt of court for issuing the order
dated July 16, 2007 suspending the proceedings in the criminal cases involving
Balindong, et al. out of judicial courtesy. 3
Antecedents
The CA’s decision being assailed in CA-G.R. SP No. 97121 rendered the following
factual antecedents, to wit:
The long-drawn controversy now raised in the instant petition was instigated by a
shooting incident that took place in Poblacion, Malabang, Lanao del Sur on May 11,
1998 that resulted in the death of Dante Limbona and Ante Maguindanao, and the
serious wounding of Azis Panda and Kiri Hadji Salik. In the course of the preliminary
investigation the investigating prosecutor found probable cause to charge private
respondents Lt. Col. Jalandoni D. Cota, Anwar Berua Balindong, PO1 Kennedy
Balindong, Amer Oden Balindong and Ali Sarip Balindong with Double Murder with
Multiple Frustrated Murder. The Information was thereupon filed before the Regional
Trial Court of Malabang, Lanao del Sur, Branch 12. However, after reinvestigation
ordered by the trial court, the Office of the Provincial Prosecutor downgraded the
charges against private respondents Lt. Col. Jalandoni D. Cota, Anwar Berua
Balindong and Kennedy Balindong and dropped the charges against Amer Oden
Balindong and Ali Balindong. Private complainant Zenaida Limbona, the widow of the
victim Dante Limbona, filed a petition for review questioning the Provincial Prosecutor’s
28 August 1998 Resolution before the Department of Justice (DOJ). In a 4 August 1999
Resolution, then Secretary Serafin Cuevas modified the assailed resolution and directed
the Provincial Prosecutor to file instead "two (2) informations for frustrated murder with
attempted murder, two (2) informations for frustrated murder and an information for
attempted murder" against private respondents. Subsequently, in a 1 December 1999
Resolution, Secretary Cuevas denied private respondents’ Motion for Reconsideration in
this wise:
"The matters raised in the instant motion for reconsideration have been taken into
consideration in arriving at our resolution, hence, we find no cogent reason to reconsider
the same.
In view, however, of the Supplemental Manifestation filed by Prosecutor Ringcar B.
Pinote on October 19, 1999, the dispositive portion of our resolution dated August 4,
1999 is hereby modified to read as follows:
x x x ‘WHEREFORE, your resolution is hereby modified. You are directed to file two (2)
informations for murder with attempted murder, two (2) informations for frustrated murder
and an information for attempted murder against respondents Datu Anwar Berua
Balindong, Lt. Col. Jalandoni Cota, PO1 Kennedy Macaborod Balindong, Datu Amer-
Oden Sarip Balindong and Datu Ali Sarip Balindong. Report your compliance within ten
(10) days from receipt hereof.’ x x x"
The corresponding Amended Informations were accordingly filed before the Regional
Trial Court of Maguindanao, Cotabato City and docketed as Criminal Case Nos. 2503,
2573, 2574, 2575 and 2576. Private respondents, in the meantime, filed a second Motion
for Reconsideration, which the succeeding DOJ Secretary Artemio G. Tuquero in a 16
March 2000 Resolution denied "with finality and with warning that no further pleadings
will be entertained". Undeterred by the tenor of the denial of their second motion for
reconsideration, they filed a Third Motion for Reconsideration that was eventually
granted by the new DOJ Secretary Hernando B. Perez in a 12 March 2001 Resolution.
Private complainants sought reconsideration thereof but the same was subsequently
denied in a 24 July 2001 Resolution, prompting them to bring the matter before the Court
of Appeals in a petition for certiorari docketed as C.A. G.R. SP No. 66858. In a 22 May
2003 Decision, the Court of Appeals set aside the assailed issuances of DOJ Secretary
Perez and reinstated the 4 August 1999, 1 December 1999 and 16 March 2000 DOJ
Resolutions, in due time denying private respondents’ Motion for Reconsideration in a 23
September 2003 Resolution.
Later, Criminal Case Nos. 2503 and 2573 were re-raffled to the Regional Trial Court
(RTC) of Quezon City, Branch 219 and re-docketed as Criminal Case Nos. Q-01-
998992-93 [sic], Q-01-100542-43 and Q-01- 100594. Then, pursuant to the 22 May 2003
Decision of the Court of Appeals, the RTC-Branch 219 issued a resolution finding
probable cause to charge private respondents for Murder with Attempted Murder in
Criminal Case No. Q-01-998992-93 [sic], Frustrated Murder in Criminal Case No. Q-01-
100542-43, and Attempted Murder in Criminal Case No. Q-01-100594. The warrants of
arrest were accordingly issued against private respondents, who, undaunted, went up to
the Supreme Court to question the Decision of the Court of Appeals by way of a petition
for review on certiorari, docketed as G.R. No. 159962. Soon after, the Supreme Court
promulgated therein its 16 December 2004 Decision, the dispositive portion of which
states:
"WHEREFORE, the petition is DENIED and the Decision of the Court of Appeals dated
22 May 2003 which annulled the DOJ Resolution dated March 12, 2001 and reinstated
its Resolutions issued on 04 August 1999, 01 December 1999 and 16 March 2000 is
AFFIRMED. The Temporary Restraining Order issued on 18 February 2004 by this Court
is hereby LIFTED, and the Regional Trial Court of Quezon City, Branch 219, is
ORDERED to implement its Resolution dated 03 December 2003 relative to the issuance
of warrants of arrest against all the accused. The said court is directed to submit a report
thereon within ten (10) days from receipt hereof."
Private respondents filed a Motion for Reconsideration but the same was denied with
finality as the Supreme Court declared in its 6 June 2005 Resolutionthat "there is no
longer any obstacle to the implementation of the existing warrants of arrest". Despite the
categorical pronouncement, however, private respondents adamantly filed another
motion purportedly for clarification of the 16 December 2004 Decision but which was in
fact an attempt to have the High Court order a redetermination by the trial court of the
appropriate crime with which to charge private respondents. In the 14 August 2005
Resolution, the Supreme Court ruled thus:
"The Court Resolves to (a) EXPUNGE from the records of this case petitioners’ urgent
motion for clarification dated June 25, 2005, xxx; and (b) ADMONISH petitioners and
their counsel to pay heed to the directives of this Court and against misrepresenting the
import of its rulings and to desist from any further unauthorized pleadings UNDER PAIN
OF CONTEMPT."
The 16 December 2006 Decision of the Supreme Court became final and executory on
July 5, 2005. Subsequently, due to the inhibition of the presiding judge of the RTC-
Branch 219 the criminal cases were raffled to RTC-Branch 100, whose presiding judge
was expressly ordered by the Supreme Court to enforce the warrants of arrest against
private respondents with utmost dispatch in a 12 December 2005 Resolution. After
issuing the Order relative to the enforcement of the warrants of arrest against private
respondents, however, the presiding judge of the RTC-Branch 100 inhibited herself as
well from hearing the criminal cases and the same were re-raffled anew to the RTC-
Branch 83, presided by respondent Judge Ralph S. Lee.
Private respondents then filed before RTC-Branch 83 a Motion to Re-Determine the
Existence or Non-Existence of Probable Cause Which May Even Warrant Dismissal –
Even of the Appropriate Charges of Homicide, Frustrated and Attempted Homicides.
Private complainants, on the other hand, moved for respondent Judge Lee’s inhibition
when the latter failed to act upon a motion for the issuance of Alias Warrants of Arrest.
However, prior to voluntarily inhibiting himself from the subject criminal cases,
respondent Judge Lee issued the assailed 12 May 2006 Order granting private
respondents’ motion for redetermination of probable cause and consequently ordering
the downgrading of the crimes charged. The cases were then re-raffled to RTC-Branch
77, presided by respondent Judge Vivencio S. Baclig, who then issued the second
assailed 18 October 2006 Order denying a Motion for Reconsideration of the 12 May
2006 Order issued by respondent Judge Lee and setting the arraignment on November
3, 2006. Private complainants filed a motion for the voluntary inhibition of respondent
Judge Baclig, who later denied said motion and re-set the arraignment on December 11,
2006 in the 22 November 2006 Order.4
Aggrieved by the orders issued on May 12, 2006 and October 18, 2006, respectively, by
Judge Ralph S. Lee and Judge Vivencio S. Baclig, the State, through the Office of
Solicitor General, commenced a special civil action for certiorari in the CA (CA-G.R. SP
No. 97121), alleging that:
RESPONDENT JUDGES COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE ASSAILED
MAY 12, 2006 AND OCTOBER 18, 2006 ORDERS.5
On November 20, 2006, the Court promulgated its Decision in G.R. No. 173290
adjudging Judge Lee and Balindong, et al. guilty of indirect contempt, 6 viz.:
In the present case, private respondents are guilty of indirect contempt for filing the
following:
(1) Urgent Motion for Clarification of the dispositive portion of the December 16, 2004
Decision in G.R. No. 159962;
(2) Motion for Determination of Probable Cause and/or Motion to Dismiss the Case and
to Quash Warrant of Arrest (with prayer for suspension of the enforcement of warrant of
arrest pending hearing) filed on September 1, 2005 before Branch 100 of the RTC of
Quezon City presided by Judge Christine Jacob;
(3) Motion for Reconsideration of Judge Jacob’s January 4, 2006 Order denying their
motion dated September 1, 2005 filed on January 24, 2006;
(4) Motion to Re-Determine the Existence or Non-Existence of Probable Cause Which
May Even Warrant Dismissal – Even of the Appropriate Charges of Homicide, Frustrated
and Attempted Homicide filed before Branch 83 on February 21, 2006.
The December 16, 2004 Decision of the Court in G.R. No. 159962 clearly sustained the
filing of two Informations for Murder with Attempted Murder, two Informations for
Frustrated Murder and an Information for Attempted Murder against private respondents.
The Court even directed the implementation of the arrest warrants against them. This,
notwithstanding, private respondents filed a motion for determination of probable cause
and/or dismissal of the case against them. Worse, this was done after being admonished
by the Court to pay heed to its directives under pain of contempt.
With the finality of this Court’s Decision, all issues relative to the determination of the
proper offenses with which to charge private respondents had been laid to rest. In
continuing to file pleadings and motions purportedly seeking for the clarification of the
proper charges against them, respondents merely rehashed their tired arguments and
unavailing assertions. They did not only succeed in delaying the conduct of the trial of
the aforesaid cases but also willfully and deliberately flouted this Court’s directives with
their stubborn refusal to abide by our pronouncement and their incessant nit-picking of
issues already resolved with finality.
In granting respondents’ motions for reconsideration and redetermination of probable
cause, and consequently down-grading the charges against respondents in his Order
dated May 12, 2006, Judge Lee contravened this Court’s directive in G.R. No. 159962
and in the subject Resolutions. He impudently substituted his own judgment for that of
this Court. Had he thoroughly reviewed the records of the case, it would have been
impossible for him to misread the import of said Decisions and Resolutions. 7
Thereafter, Judge Lee inhibited from the criminal cases, which were re-assigned to
Branch 91 the RTC, presided by Judge Lita Tolentino-Genilo, who, on May 24, 2007,
issued an order: (a) reinstating the charges against Balindong, et al. for two counts of
murder with attempted murder, two counts of frustrated murder, and one count of
attempted murder to conform with the decision promulgated in G.R. No. 159962; (b)
issuing alias warrants of arrest against them; and (c) inhibiting herself from further
hearing the cases.8 Subsequently, the criminal cases were re-raffled to Branch 76, whose
Presiding Judge was respondent Judge Alexander S. Balut.
Aggrieved by the dispositions of Judge Tolentino-Genilo, Balindong, et al. filed their
Motion for Reconsideration and/or Recall Suspend Order of Arrest.9 As the new trial
judge, however, Judge Balut opted to defer action to await the Court’s ruling in G.R. No.
177600.10 He further suspended the enforcement of the alias warrants issued for the
arrest of Balindong, et al.11 Hence, Limbona commenced G.R. No.178684.
On April 24, 2007, the CA promulgated its ruling in CA-G.R. SP No. 97121,12 disposing:
WHEREFORE, premises considered, the petition is hereby GRANTED. The 12 May
2006 Order of the Regional Trial Court of Quezon City, Branch 83, as well as, the 18
October 2006 Order of the Regional Trial Court of Quezon City, Branch 77
are REVERSED and SET ASIDE.
SO ORDERED.13
The CA declared the assailed orders of Judge Lee and Judge Baclig to be in clear
defiance of the Court’s decision in G.R. No. 159962. 14 It pronounced that Judge Lee
erred in opining that the Court had only sustained in G.R. No. 159962 the executive
determination of probable cause by the DOJ, and had not touched on what appropriate
crimes should have been charged against Balindong, et al.; 15 and that Judge Baclig
similarly erred in holding that the Court "did not prohibit the trial judge from determining
the appropriate crime to be filed against the accused [once] the cases were brought to
his sala."16 It pointed out that:
There are no two ways to construe the 16 December 2004 Decision of the Supreme
Court relative the appropriate charges to be filed against private respondents. In
upholding the Court of Appeals’ ruling that the DOJ should not have entertained a third
motion for reconsideration, the Supreme Court did not merely touch upon a procedural
infirmity but ruled further on private respondents’ material objections to the propriety of
the murder charge against them, x x x
xxxx
To reiterate the rule, determination of qualifying circumstances is a matter of evidence.
Thus, as pointed out by petitioner, by arbitrarily downgrading the original charge from
murder, frustrated murder and attempted murder to homicide, frustrated homicide and
attempted homicide, respondent Judge Lee effectively denied the prosecution the
opportunity to prove the attendance of qualifying circumstances in a fullblown trial. 17
The CA took note of the ruling of the Court in G.R. No. 173290, which said in part:
Finally, whatever other grounds for opposition raised by private respondents in their
Comment to the Petition and Rejoinder to Petitioner’s Reply, the resolution of this case
has been simplified by the promulgation of the Supreme Court 20 November 2006
Decision in the petition for indirect contempt filed against private respondents. In granting
private respondents’ motion for reconsideration and re-determination of probable cause,
and consequently downgrading the charges, the Supreme Court found respondent Judge
Lee guilty of indirect contempt for having clearly contravened the Court’s directive in G.R.
No. 159962 and impudently substituting his own judgment for that of the Court. It further
found private respondents’ persistent attempts to raise issues long settled by a final and
executory judgment a contumacious defiance of the Court’s authority. x x x
xxxx
Accordingly, private respondents have been penalized for their contumacious acts and
the issue concerning the proper crimes with which they should be charged has been laid
to rest.18
Balindong, et al. have appealed the CA’s decision in CA-G.R. SP No. 97121 (G.R. No.
177600).
Issues
In G.R. No. 177600, Balindong, et al. submit the following issue:
WHETHER OR NOT AFTER THE EXHAUSTION OF PRELIMINARY INVESTIGATION
WHICH REACHED THE DEPARTMENT OF JUSTICE BY WAY OF PETITION FOR
REVIEW, TO THE COURT OF APPEALS AND ULTIMATELY TO THIS HONORABLE
COURT (IN G.R. NO. 159962), AND AFTER THE PROSECUTION’S STAND
SUSTAINING THE ORIGINAL INFORMATIONS FOR MURDER, FRUSTRATED AND
ATTEMPTED HAD BEEN MADE FINAL AND EXECUTORY, THE RTC – COURT (A
COURT OF GENERAL JURISDICTION) AND/OR YOUR PETITIONERS ACCUSED,
ARE PRECLUDED/ PROHIBITED FROM INVOKING SECTION 14, RULE 110 OR
SECTION 19, RULE 119 OF THE 2000 REVISED RULES ON CRIMINAL PROCEDURE
ESPECIALLY SINCE IT WAS MADE FOR THE FIRST TIME AFTER YOUR
PETITIONERS’ EXECUTIVE REMEDY FROM THE PRELIMINARY INVESTIGATION
TO A PETITION FORE REVIEW (BEFORE THE DOJ), THE APPELLATE COURT AND
THIS HONORABLE COURT WAS EXHAUSTED AND NOTHING MORE.19
In G.R. No.178684, Limbona raises as the sole ground for her petition to cite in contempt
of court Judge Balut and Balindong, et al. that:
Petitioner respectfully submits the foregoing acts of Respondent in willfully disobeying
the decision and resolutions issued by the Hon. Supreme Court in G.R. No. 159962 and
G.R.173290 (sic), which tend to impede upon or obstruct the administration of justice,
constitutes an indirect contempt which ought to be punished. 20
Rulings of the Court
G.R. No. 177600
The petition for review on certiorari in G.R. No. 177600 is denied for being bereft of merit.
Despite conceding that the Decision promulgated in G.R. No. 159962 had long become
final and executory,21 Balindong, et al. insist that they were not precluded from still
seeking from the RTC as the trial court the judicial determination of probable cause
against them because all that the Court had upheld in G.R. No. 159962 was only the
executive determination of probable cause. They argue that the Court did not thereby
prevent their resort to available judicial remedies, like filing the proper motions for the
judicial determination of probable cause in the trial court, 22 anchoring their argument on
Section 14, Rule 110, in relation to Section 19, Rule 119, both of the Rules of Court The
insistence of Balindong, et al. is legally unwarranted.
To recall, G.R. No. 159962 was an appeal by Balindong, et al. to review the judgment the
CA had promulgated on May 22, 2003: (a) granting the petition for certiorari of Limbona;
(b) setting aside DOJ Resolution issued on March 12, 2001 by then Secretary of Justice
Hernando Perez favorably acting on the third motion for reconsideration of Balindong, et
al. relative to the proper offenses to be charged against them despite the denial with
finality of their first and second motions for reconsideration; and (c) reinstating the DOJ
Resolutions dated August 4, 1999, December 1, 1999 and March 16, 2000 issued by the
predecessors of Secretary Perez.23 It is noted that in his assailed Resolution of March 12,
2001, Secretary of Justice Perez had dropped Amer Oden Balindong and Ali S.
Balindong from the informations, and had directed the Office of the Provincial Prosecutor
of Lanao del Sur "to cause the filing of the amended information for double homicide with
multiple frustrated homicide against Mayor Anwar Berua Balindong, Lt. Col. Jalandoni
Cota and PO1 Kennedy Balindong."24
In granting the petition for certiorari of Limbona, the CA declared that Secretary of
Justice Perez had committed grave abuse of discretion amounting to lack or excess of
jurisdiction, firstly, by totally disregarding the clear provision of Section 13 of DOJ
Circular No. 70 (governing appeals) prohibiting second or further motions for
reconsideration; and, secondly, by acting on and granting the third motion for
reconsideration despite the grounds relied upon by Balindong, et al. being previously
raised in the first and second motions for reconsideration and being already fully passed
upon by his predecessors in office in the guise of serving the interest of justice and as an
exception to Section 13 of DOJ Circular No. 70.
The Court disposed in G.R. No. 159962 as follows:
WHEREFORE, the petition is DENIED and the Decision of the Court of Appeals dated 22
May 2003 which annulled the DOJ Resolution dated 12 March 2001 and reinstated its
Resolutions issued on 04 August 1999, 01 December 1999 and 16 March 2000 is
AFFIRMED. The Temporary Restraining Order issued on 18 February 2004 by this Court
is hereby LIFTED, and the Regional Trial Court of Quezon City, Branch 219, is
ORDERED to implement its Resolution dated 03 December 2003 relative to the issuance
of warrants of arrest against all the accused. The said Court is directed to submit a report
thereon within ten (10) days from receipt hereof.
Let a copy of this Decision be furnished the Department of Justice for its information and
appropriate action.
SO ORDERED.25
The language and meaning of the Decision promulgated in G.R. No. 159962, that the
proper criminal charges against Balindong, et al. were two counts of murder with
attempted murder, two counts of frustrated murder, and one count of attempted
murder, were clear and forthright enough to require elaboration. Accordingly, the Court,
by thereby ordering the RTC "to implement its Resolution dated 03 December 2003
relative to the issuance of warrants of arrest against all the accused," did not need to
dwell specifically on the judicial determination of probable cause independently of the
executive determination. We should remind that the trial judge, by issuing the warrants of
arrest, already found the existence of probable cause against Balindong, et al. Indeed,
the act of issuing the warrant of arrest upon filing of the information and supporting
papers implied that the judge has determined the existence of probable cause for the
offenses charged. It is then superfluous for the accused to seek the judicial determination
of probable cause on the pretext that the trial court should still act and proceed
independently of the executive determination of probable cause to charge the proper
offense. Rule 112 of the Rules of Court relevantly provides:
Sec. 6. When warrant of arrest may issue. — (a) By the Regional Trial Court. — Within
ten (10) days from the filing of the complaint or information, the judge shall personally
evaluate the resolution of the prosecutor and its supporting evidence. He may
immediately dismiss the case if the evidence on record clearly fails to establish probable
cause. If he finds probable cause, he shall issue a warrant of arrest, or a
commitment order if the accused has already been arrested pursuant to a warrant issued
by the judge who conducted the preliminary investigation when the complaint or
information was filed pursuant to section 7 of this Rule. In case of doubt on the existence
of probable cause, the judge may order the prosecutor to present additional evidence
within five (5) days from notice and the issue must be resolved by the court within thirty
(30) days from the filing of the complaint or information. (bold emphasis supplied)
xxxx
Moreover, Balindong, et al. could not reasonably support their position that they could
still have the trial court determine the existence of probable cause in their criminal cases
independently of the executive determination of probable cause by the DOJ by relying on
Section 14, Rule 110, in relation to Section 19, Rule 119, both of the Rules of Court.
Section 14 of Rule 110 states:
Section 14. Amendment or substitution. — A complaint or information may be amended,
in form or in substance, without leave of court, at any time before the accused enters his
plea. After the plea and during the trial, a formal amendment may only be made with
leave of court and when it can be done without causing prejudice to the rights of the
accused.
However, any amendment before plea, which downgrades the nature of the offense
charged in or excludes any accused from the complaint or information, can be made only
upon motion by the prosecutor, with notice to the offended party and with leave of court.
The court shall state its reasons in resolving the motion and copies of its order shall be
furnished all parties, especially the offended party. (n)
If it appears at any time before judgment that a mistake has been made in charging
the proper offense, the court shall dismiss the original complaint or information upon
the filing of a new one charging the proper offense in accordance with section 19, Rule
119, provided the accused would not be placed in double jeopardy. The court may
require the witnesses to give bail for their appearance at the trial. (14a) (bold emphasis
supplied)
Ostensibly, Section 14, supra, applies only to a situation in which there has been a
mistake on the part of public prosecutor in charging the proper offense.
It becomes logical to ask: Did the public prosecutor make a mistake in charging the
proper offenses against Balindong, et al.?
The answer is no.
There was no mistake in charging the proper offenses. Balindong, et al. fully exhausted
1âwphi1
the procedure to determine the proper offenses to be charged against them by going all
the way up to the Secretary of Justice. Their quest was ultimately settled with finality by
the Secretary of Justice denying their second motion for reconsideration and declaring
that such offenses were two counts of murder with attempted murder, two counts of
frustrated murder, and one count of attempted murder. They thereafter attempted to
undo such final determination by filing a third motion for reconsideration in the DOJ, and
they initially succeeded because Secretary Perez directed the Office of the Provincial
Prosecutor of Lanao del Sur "to cause the filing of the amended information for double
homicide with multiple frustrated homicide against Mayor Anwar Berua Balindong, Lt.
Col. Jalandoni Cota and PO1 Kennedy Balindong," and dropped Amer Oden Balindong
and Ali S. Balindong from the informations. But their success was overturned by the CA,
whose nullification of Secretary Perez’s favorable action on their third motion for
reconsideration was affirmed in G.R. No. 159962. Thus, this Court even issued its
judicial imprimatur on the probable cause for two counts of murder with attempted
murder, two counts of frustrated murder, and one count of attempted murder. For
Balindong, et al. to rely on Section 14, supra, as basis for the RTC to still reach a
determination of probable cause different from those sanctioned in G.R. No. 159962
would be untenable.
G.R. No. 178684
We next deal with the contempt charge of Limbona against Judge Balut who, by his
order of July 16, 2007, deferred action on the Motion for Reconsideration and/or Recall
Suspend Order of Arrest of Balindong, et al., and suspended the enforcement of the alias
warrants of arrest.26
Limbona claims that Judge Balut’s actions constituted a disobedience to the decisions of
the Court in G.R. No. 159962 and G.R. No. 173290 because the suspension of the
enforcement of the alias warrants of arrest "has a predilection to put the dignity of the
[Court] in disrepute, obstruct the administration of justice, or interfere with the disposition
or (sic) the court’s business in the performance of its function in an orderly
manner."27 She also points out that the "order to suspend the enforcement of the said
warrants has the same effect of a temporary restraining order,"28 which, in effect, "pre-
empted the [Court’s] resolution of the prayer for the issuance of the temporary restraining
order/injunction."29
Let us also look at Judge Balut’s order of July 16, 2007, in which he stated as follows:
Without necessarily addressing the merit of the motion, that is, whether or not the alias
warrants of arrest issued against the accused should be recalled or set aside, and to
avert any conflicting determinations on the matter at hand, the Court deems it but
prudent to defer any action hereto considering that the accused’s petition for review in
G.R. No. 177600 assailing the Court of Appeals’ judgment in CA-G.R. SP No. 97121,
which precipitated the issuance of the order of arrest sought to be reconsidered/recalled
by herein accused, is still pending before the Honorable Supreme Court for final
determination.
In the meantime, while awaiting resolution of the said petition for review in G.R. No.
177600, the enforcement of the alias warrants of arrest, dated May 25, 2007, issued
against the accused is hereby suspended. 30
Judge Balut has justified his actions by invoking judicial courtesy and asserting his
judicial discretion on the matters in question, to wit:
As a backgrounder, five (5) consolidated criminal cases were filed charging the accused
Mayor Anwar Berua Balindong et al. with murder with attempted murder, frustrated
murder and attempted murder. Thereafter, a legal battle ensued concerned mainly on
what is the appropriate crime with which to charge the accused. After several years of
legal haggling, flip-flopping of charges and the inhibition of five (5) trial judges, these
cases finally landed in the undersigned’s sala with a pending incident: the accused’s
MOTION FOR RECONSIDERATION AND/OR RECALL SUSPEND ORDER OF
ARREST. Conscientious of his duty to dispose of pending incidents with dispatch, the
undersigned, fully aware that any resolution of the said incident would spark controversy,
which would necessarily entail another series of legal maneuverings resulting in the
further delay of the disposition of these cases, resolved to withhold action thereon and
deemed it best to observe judicial courtesy and await this Honorable Court’s
determination of the accused’s petition for review in G.R. No. 177600.
No less than the imperative of judicial courtesy impelled the undersigned Presiding
Judge to issue the order dated July 16, 2007. A PETITION FOR REVIEW assailing the
1âwphi1
Court of Appeals’ Decision reversing and setting aside the May 12, 2006 Order of the
Regional Trial Court of Quezon City (Branch 83), as well as the October 18, 2006 Order
of the Regional Trial Court of Quezon City (Branch 77) is pending before this Honorable
Court. It is to be recalled that in the May 12, 2006 Order, Judge Ralph S. Lee
downgraded the offenses charged in the informations from Murder with Attempted
Murder, Frustrated Murder and Attempted Murder, to Double Homicide with Attempted
Homicide, Multiple Frustrated Homicide and Attempted Homicide, respectively. In the
October 18, 2006 Order, Judge Vivencio S. Baclig denied the prosecution’s MOTION
FOR RECONSIDERATION thereof. In ordering the suspension of the enforcement of the
alias warrants of arrest dated May 25, 2007, the undersigned, not unmindful of the
Decision dated December 16, 2004 in G.R. No. 159962, the two Resolutions dated June
6, 2005 and December 12, 2005, and the Decision dated November 20, 2006 in G.R. No.
173290, merely exercised his judicial discretion. He most respectfully submits that the
issuance of the Order downgrading the offenses is a supervening fact which now divides
the procedural antecedents of the case, i.e, "prior to the order dated May 12, 2006" and
"after said order". Prior to the order, this Honorable Court in ordering the Regional Trial
Court of Quezon City (Branch 219) to implement its Resolution dated December 3, 2003
relative to the issuance of warrants of arrest against all the accused, resolved that there
is no longer any obstacle to the implementation of the existing warrants of arrest, and
ordered Judge Marie Christine A. Jacob (Presiding Judge of the Regional Trial Court of
Quezon City, Branch 100) to enforce the warrants of arrest against the petitioners on
December 3, 2004 with utmost dispatch. In this stage, there could certainly be no
question or issue as to the enforcement of the warrants of arrest. The Court indeed
spoke with finality. However, "after the Order," where the undersigned is, another issue
evolved, which issue is still pending final determination by the Honorable Court. The
foundation for this Honorable Court’s issuances, "before the order" could not be said to
be the same judicial foundation now, "after the order," as to hold the undersigned for
contempt in suspending the enforcement of the warrants of arrest. The legal milieu has
changed. x x x31
It is clear that Judge Balut did not thereby disobey the decisions of the Court in G.R. No.
159962 and G.R. No. 173290. To start with, there was no indication in his Order that bad
faith had moved him to suspend the implementation of the warrants of arrest against
Balindong, et al., or that he had thereby acted with a willful and deliberate intent to
disobey or to ignore the Court’s bidding, or to cause injustice to any of the parties. In the
absence of the clear showing of bad faith on his part, his being prudent could only be an
error of judgment, for which he could not be held to account. Secondly, the history of the
criminal cases, from the transfer of venue at the behest of Secretary Tuquero from
Cagayan de Oro to Quezon City; to the successive inhibitions of several RTC Judges; to
the succession of petitions for certiorari bearing on the handling of the criminal cases
brought to the higher courts, including this Court, 32 must have probably persuaded Judge
Balut to tread the path of prudence and caution. Indeed, he expressed in his Order of
July 16, 2007 the desire "to avert any conflicting determinations" pending the
promulgation of the Court’s Decision in G.R. No. 177600. And, thirdly, his actuations
were entirely different from those of Judge Lee’s, who downgraded the offenses from two
counts of murder with attempted murder, two counts of frustrated murder, and one count
of attempted murder to double homicide with multiple frustrated homicide, and ordered
the issuance of the warrants of arrest for such downgraded offenses. Judge Lee thereby
directly contradicted the ruling in G.R. No. 159962.
Contempt of court is defined in jurisprudence in this manner:
Contempt of court is defined as a disobedience to the Court by acting in opposition to its
authority, justice and dignity. It signifies not only a willful disregard or disobedience of the
courts orders, but such conduct which tends to bring the authority of the court and the
administration of law into disrepute or in some manner to impede the due administration
of justice. Contempt of court is a defiance of the authority, justice or dignity of the court;
such conduct as tends to bring the authority and administration of the law into disrespect
or to interfere with or prejudice parties litigant or their witnesses during litigation. 33
The contempt power of the courts has been discussed in Sison v. Caoibes, Jr., to wit:34
Thus, the power to declare a person in contempt of court and in dealing with him
accordingly is an inherent power lodged in courts of justice, to be used as a means to
protect and preserve the dignity of the court, the solemnity of the proceedings therein,
and the administration of justice from callous misbehavior, offensive personalities, and
contumacious refusal to comply with court orders. Indeed, the power of contempt is
power assumed by a court or judge to coerce cooperation and punish disobedience,
disrespect or interference with the courts orderly process by exacting summary
punishment. The contempt power was given to the courts in trust for the public, by
tradition and necessity, in as much as respect for the courts, which are ordained to
administer the laws which are necessary to the good order of society, is as necessary as
respect for the laws themselves.35
Verily, the power of the courts to punish for contempt is to be exercised cautiously,
sparingly, and judiciously.36 Self-restraint in wielding contempt powers should be the rule
unless the act complained of is clearly contumacious. An act, to be contumacious, must
manifest willfulness, bad faith, or deliberate intent to cause injustice. 37
WHEREFORE, the Court DENIES the petition for review on certiorari in G.R. No.
177600; DISMISSES the petition for contempt in G.R. No.
178684; AFFIRMS theDecision promulgated on April 24, 2007 by the Court of Appeals in
CA-G.R. SP No. 97121; and ORDERS the petitioners in G.R. No. 177600 to pay the
costs of suit.
The Regional Trial Court, Branch 76, in Quezon City is DIRECTED to forthwith resume
the proceedings in Criminal Case No. Q-01-99892, Criminal Case No. Q-01-99893,
Criminal Case No. Q-01-100542, Criminal Case No. Q-01-100543 and Criminal Case
No. Q-01-100594; and to report its compliance with this decision within 30 days from
notice.
SO ORDERED.
G.R. No. 199087, November 11, 2015
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JERRY PUNZALAN
AND PATRICIA PUNZALAN, Accused-Appellants.
DECISION
 VILLARAMA, JR., J.:
Accused-appellants Jerry Punzalan and Patricia Punzalan seek the reversal of
the Decision1 of the Court of Appeals (CA) dated October 28, 2011 in CA-G.R.
CR HC No. 04557 which affirmed the Joint Decision2 dated March 29, 2010
and the Order3 dated June 21, 2010 of the Regional Trial Court (RTC) of
Pasay City, Branch 116 in Crim. Case No. R-PSY-09-01162-CR convicting
them of violation of Section 11, Article II of the Comprehensive Dangerous
Drugs Act of 2002 (R.A. No. 9165).
Accused-appellants were charged under the Information4 docketed as Crim.
Case No. R-Y-09-01162-CR for violation of Section 11, Article II of R.A. No.
9165, which reads as follows:chanRoblesvirtualLawlibrary
That on or about the 03rd day of November 2009, in Pasay City, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, without authority of law did then and there willfully,
unlawfully and feloniously have in their possession, custody and control 40.78
grams of Methamphetamine Hydrochloride, (shabu) a dangerous drug.
CONTRARY TO LAW.
cralawlawli brary
Upon arraignment, accused-appellants pleaded not guilty to the charge.
During the trial, the prosecution presented Intelligence Officer 1 Aldwin
Pagaragan (IO1 Pagaragan), Special Investigator 2 Juancho Esteban (SI2
Esteban), Barangay Chairman Reynaldo Flores and Barangay Kagawad Larry
Fabella as witnesses.
The prosecution established that on November 3, 2009, at around 4:30 in the
morning, Intelligence Agent 1 Liwanag Sandaan (IA1 Sandaan) and her team
implemented a search warrant5 issued on October 28, 2009 by then Manila
RTC Judge Eduardo B. Peralta, Jr. to (i) make an immediate search of the
premises/house of accused-appellants Jerry and Patricia Punzalan, Vima
Punzalan, Jaime Punzalan, Arlene Punzalan-Razon and Felix Razon who are
all residents of 704 Apelo Cruz Compound, Barangay 175, Malibay, Pasay
City; and (ii) to seize and take possession of an undetermined quantity of
assorted dangerous drugs, including the proceeds or fruits and bring said
property to the court.
Since there are three houses or structures inside the compound believed to
be occupied by the accused-appellants, a sketch6 of the compound describing
the house to be searched was prepared and attached to the search warrant.
The Philippine Drug Enforcement Agency (PDEA) Team tasked to conduct the
search was composed of IA1 Sandaan as team leader, SI2 Esteban and IO2
Jessica Alvarado (IO2 Alvarado) as arresting officers and IO1 Pagaragan as
seizing officer.7 IO1 Pagaragan made lateral coordination with the Southern
Police District, Tactical Operations Unit, as evidenced by the Pre-Operation
Report8 dated November 3, 2009 and Authority to Operate9.
Before proceeding to the target area, they passed by the barangay hall to
coordinate with Barangay Chairman Reynaldo Flores, Kagawad Larry Fabella
and Kagawad Edwin Razon. The team likewise brought with them a media
representative affiliated with "Sunshine Radio" to cover the operation. From
the barangay hall, they walked toward the target place using as a guide the
sketch they prepared.
When they were already outside the house of Jerry and Patricia Punzalan,
which is a three-storey structure, IA1 Sandaan knocked on the door. A
woman, later identified as accused-appellant Patricia Punzalan, slightly
opened the door. When they introduced themselves as PDEA agents and
informed the occupant that they have a search warrant, Patricia immediately
tried to close the door but was not successful since the PDEA agents pushed
the door open. The team was able to enter the house of Jerry and Patricia
Punzalan who were both surprised when found inside the house. IO1
Pagaragan showed and read the search warrant infront of accused-
appellants.
Inside the house, the team immediately saw plastic sachets placed on top of
the table. 101 Pagaragan was able to seize nine (9) heat-sealed plastic
sachets, two (2) square-shaped transparent plastic containers and a small
round plastic container. All three (3) plastic containers contained smaller
heat-sealed plastic sachets of white crystalline substance of
suspected shabu. There were also other paraphernalia, guns, money and a
digital weighing scale. Accordingly, SI2 Esteban and IO2 Alvarado effected
the arrest of accused-appellants Jerry and Patricia Punzalan after informing
them of their constitutional rights. 101 Pagaragan immediately marked the
seized items by placing the marking "ADP". After searching and marking the
evidence found on the first floor, the team, together with the barangay
officials and accused-appellants, proceeded to, and conducted the search on
the second and third floors but found nothing. They went downstairs where
they conducted the inventory of recovered items. 101 Pagaragan prepared
the Receipt/Inventory of Property Seized10 and a Certification of Orderly
Search11 which were later signed by the barangay officials.
After their arrest, accused-appellants Jerry and Patricia Punzalan were
brought to the PDEA Office in Quezon City for investigation. IO1 Pagaragan
presented the seized evidence to Atty. Benjamin Gaspe, who prepared the
Booking Sheet and Arrest Report,12 Request for Drug Test/Physical and
Medical Examination. They likewise caused the preparation of their respective
affidavits. Photographs were also taken during the actual search and
inventory. Laboratory examination of the seized pieces of drug evidence gave
positive results for the presence of methamphetamine hydrochloride,
otherwise known as shabu, a dangerous drug.13
Thereafter, the accused-appellants were charged with violation of Section 11,
Article II of R.A. No. 9165 for illegal possession of 40.78 grams of
methamphetamine hydrochloride otherwise known as shabu, a dangerous
drug.
In denying the charge, accused-appellant Jerry Punzalan testified that at
around 5:45 in the morning of November 3, 2009, he was at his store located
at 704, A-44 Apelo Cruz Street, Pasay City. Their house and store are two
separate structures which are 70 meters apart. Patricia was inside the store
fixing the grains. Jerry was about to open the store when he saw men
running toward their main house, carrying a tank with hose attached to it.
Jerry followed them and saw the men applying acetylene on their steel gate.
Jerry shouted at them but the men poked their guns at him and when he
answered in the affirmative after being asked if he is Jerry, they placed him
in metal handcuffs, held him at the back of his shirt and brought him to his
garage, about 30 meters from their house. He was later made to board a
van, which is about five meters away from the garage. Inside the van, his
wife Patricia was already there with her hands bound in plastic. They stayed
there for more or less three hours. Then, Barangay Chairman Reynaldo Flores
arrived. They were brought by the PDEA agents to their main house. Upon
reaching the house, accused-appellants noticed that their belongings were
already scattered. Inside their house, there were two kagawads, two female
and two male PDEA agents, whom they later identified as IO1 Pagaragan, IA1
Sandaan, SI2 Esteban and IO2 Alvarado, Kagawad Larry Fabella and
Kagawad Edwin Razon. Their pieces of jewelry, cash amounting to P985,000
or almost a million pesos, 3,711 US dollars, 3,100 Holland, Euro, Malaysian
Ringgit, things belonging to their children like PSP, gameboy, video camera,
14 units of cellphone, licensed gun, and three kilos of gold were likewise
missing. Jerry testified that he kept a huge amount of cash in the house
because he is engaged in "5-6" money-lending business. He also sells rice
from Bulacan.
From the van, the PDEA agents made them go up to the 4th floor. He heard
his children crying inside the room of his eldest child at the third floor.
Accused-appellants explained that they sleep in the store because they close
late at night and wake up very early. Their things were already scattered but
no search was conducted upstairs. They were led down, brought out of the
house and boarded the van. They were later brought to the PDEA office in
Quezon City.
The defense also presented as witness accused-appellants' daughter, Jennifer
Punzalan, to corroborate their claim. She testified that on November 3, 2009,
between 5:45 and 6:00 o'clock in the morning, she was inside her room,
together with her younger siblings. Her parents were at the store. The last
time she saw her parents was on the night of November 2, 2009. In the
morning of the following day, there were people searching their house. She
was inside the room together with her siblings when somebody entered and
searched the room. They just covered themselves with a blanket. She left the
room at noontime when the persons who entered the room and her parents
were no longer inside the house. They left the house only when Kagawad
Edwin Razon fetched them.
Another witness presented by the defense is Kagawad Edwin Razon who
testified that when he arrived at the house of accused-appellants, after he
was summoned by Barangay Chairman Reynaldo Flores for the purpose of
conducting a search in the house of the Punzalans, the door was open, there
was a .45 pistol on top of the table, an agent of PDEA was marking the
exhibits which seem to be shabu, and the cabinets were already opened.
There were four PDEA agents when he reached the house. He also noticed a
reporter and a photographer. He sat for a while and then accused-appellants
were brought inside the house, who came from the van. Later, he signed a
document containing the list of evidence spread on the table. He said that
they did not conduct any search because they just made a house tour up to
the third floor.
Lastly, accused-appellant Patricia Punzalan testified that on November 3,
2009, between 5:45 and 6:00 o'clock in the morning, she was inside the
store located at 704-A44 Apelo Cruz Street, Pasay City. Their house is 50
meters away from the store. Then, she noticed that there were many gun-
carrying men, so her husband, Jerry, followed them. She went out to check
what is going on. Two armed men then approached her and asked for her
name. After she gave her name, Pat, they tied her hands with plastic. Then a
van passed by and she was asked to board the van. After the van had run a
few meters, it was parked for more or less three hours. Thereafter, the driver
alighted and then the door was opened. She saw her husband who was
already in handcuffs and was made to board the van. They also saw
Barangay Chairman Reynaldo Flores. They were made to alight from the van
and were brought inside the house. The door was already open and some
PDEA agents, Kagawad Edwin Razon, Kagawad Larry Fabella and a reporter
were there. One lady was sitting and another woman was standing. The
reporter was sitting. The male PDEA agent was marking some plastic sachets,
which they claimed to be shabu. They stayed inside the house for more or
less one hour during which photographs were taken by the PDEA agents. She
further said that while she was in her store, her four children were inside
their house. PDEA agents brought them out and they were made to board the
van.
In a Joint Decision14 dated March 29, 2010, the trial court convicted accused-
appellants for violation of Section 11, Article II, R.A. No. 9165 and sentenced
them to suffer a penalty of imprisonment of twelve (12) years and one (1)
day, as minimum, to fourteen (14) years, as maximum, and to pay a fine of
P300,000.00.
The trial court held that the issuance of a search warrant against the
premises of different persons named therein is valid as there is no
requirement that only one search warrant for one premise to be searched is
necessary for its validity. Also, the address of the accused-appellants Jerry
and Patricia Punzalan was clearly and adequately described. A sketch that
specifically identifies the places to be searched was attached to the records
and such description of the place was unquestionably accurate that the PDEA
agents were led to, and were able to successfully conduct their operation in
the premises described in the search warrant.
The trial court also ruled that the implementation of the search warrant
sufficiently complied with the requirements of the law. Despite accused-
appellants' assertion that they were arrested outside their house and were
made to board a van parked along the street beside the river and were not
allowed by the PDEA agents to witness the search conducted inside the
house, the trial court was convinced that accused-appellants Jerry and
Patricia Punzalan were in fact inside their house and were physically present
during the conduct of the search.
The trial court gave weight to the prosecution's version and found no reason
to doubt the credibility of IO1 Pagaragan, whose testimony was sufficiently
corroborated by SI2 Esteban. The court found no showing of any improper or
ill motive on the part of both PDEA agents to testify against the accused-
appellants and neither was there evidence that the two PDEA agents were not
properly performing their official duties and functions at that time. On the
other hand, the defense merely offered alibi and bare denials which cannot
overcome the presumption of regularity of performance of functions accorded
to 101 Pagaragan's and SI2 Esteban's detailed declarations under oath.
In its findings, the trial court observed that there were actually two phases of
the search done in the Punzalan house. The first or initial search was done at
the ground floor of the house, immediately after the PDEA agents gained
entry and was beyond doubt made in the presence of both accused. This is
where the bulk of illegal drugs were found, confiscated and consequently
marked. The trial court further stated that it is of no moment that the
barangay officials were not able to witness the said initial search and their
failure to arrive on time to witness the first or initial search at the ground
floor of the Punzalan house, or even their total absence thereat, will not
render the subject search invalid and unlawful inasmuch as their presence is
not required. The trial court held that the prosecution successfully and
sufficiently established that the two accused were present during the initial
search, thus, satisfying the requirement of a lawful and valid search.
The second phase of the search was conducted at the upper floors of the
house after the markings on the 293 sachets of confiscated specimens were
completed by 101 Pagaragan. This was witnessed and participated in by the
barangay officials. Finally, after the search of the entire house was concluded,
it is not disputed that an inventory of all the items seized was conducted by
101 Pagaragan in compliance with the provisions of Section 21, Article II of
R.A. No. 9165. In fact, it was admitted by the barangay officials that they
were requested to wait for the DOJ representative, to which they willingly
acceded.
Accused-appellants filed a motion for reconsideration but it was denied in the
Order15 dated June 21, 2010. The trial court modified the Joint Decision by
increasing the penalty to life imprisonment and the fine to P400,000.00.
On appeal, the CA affirmed the conviction of accused-appellants. The CA held
that there was a valid search and seizure conducted and the seized items are
admissible in evidence. The prosecution was able to prove all the elements of
illegal possession of dangerous drugs: (1) the accused is in possession of an
item or object which is identified to be a prohibited drug; (2) such possession
is not authorized by law; and (3) the accused freely and consciously
possessed the said drug.
The pertinent portion of the CA Decision states:
Given the foregoing, We do not find any error committed by the trial court in
convicting accused-appellants for Violation of Section 11, Article II of RA
9165. From the evidence adduced, their guilt to the crime charged have been
proved beyond reasonable doubt. Since the seized shabu weighs 40.78
grams, the modified penalty of life imprisonment and fine of P400,000.00 is
maintained pursuant to Section 11, Article II of RA 9165.
WHEREFORE, premises considered, the instant appeal is DENIED. The
assailed Joint Decision dated March 29, 2010 and the Order dated June 21,
2010 of the Regional Trial Court, Branch 116, Pasay City are
here AFFIRMED.
SO ORDERED.16 ChanRoblesVirt ualawl ibrary
cralawlawli brary
Hence, this appeal. Accused-appellants set forth the following errors allegedly
committed by the CA:
chanRoblesvirtualLaw library
1. That the SEARCH WARRANT NO. 09-14814 issued by JUDGE
ED[U]ARDO PERALTA, Jr., of Branch 17-RTC Manila, was in fact
illegally procured and unlawfully implemented.
2. The Prosecution miserably failed to establish the guilt of
accused- appellants for alleged possession of illegal drugs as
the requirement demanded by Chain-in-Custody [chain of
custody] Rule were never met.
3. The Prosecution failed to establish the guilt of the accused-
appellants beyond reasonable doubt.17
cralawlawli brary
In assailing the validity of the search warrant, accused-appellants claim that
the PDEA agents who applied for a search warrant failed to comply with the
requirements for the procurement of a search warrant particularly the
approval of the PDEA Director General. Accused-appellants also contended
that the court which issued the search warrant, the RTC of Manila, Branch 17,
had no authority to issue the search warrant since the place where the search
chanRoblesvirtualLawlib rary
is supposed to be conducted is outside its territorial jurisdiction.
We are not persuaded. A.M. No. 03-8-02-SC, entitled "Guidelines on the
Selection and Appointment of Executive Judges and Defining their Powers,
Prerogatives and Duties" as approved by the Court in its Resolution of
January 27, 2004, as amended, provides: chanRoblesvirtualLawlib rary
SEC. 12. Issuance of search warrants in special criminal cases by the
Regional Trial Courts of Manila and Quezon City. - The Executive Judges and,
whenever they are on official leave of absence or are not physically present in
the station, the Vice-Executive Judges of the RTCs of Manila and Quezon City
shall have authority to act on applications filed by the National Bureau of
Investigation (NBI), the Philippine National Police (PNP) and the Anti-Crime
Task Force (ACTAF), for search warrants involving heinous crimes, illegal
gambling, illegal possession of firearms and ammunitions as well as violations
of the Comprehensive Dangerous Drugs Act of 2002, the Intellectual Property
Code, the Anti-Money Laundering Act of 2001, the Tariff and Customs Code,
as amended, and other relevant laws that may hereafter be enacted by
Congress, and included herein by the Supreme Court.
The applications shall be endorsed by the heads of such agencies or their
respective duly authorized officials and shall particularly describe therein the
places to be searched and/or the property or things to be seized as
prescribed in the Rules of Court. The Executive Judges and Vice-Executive
Judges concerned shall issue the warrants, if justified, which may be served
outside the territorial jurisdiction of the said courts.
x x x x18
cralawlawlibrary
In the instant case, aside from their bare allegation, accused-appellants failed
to show that the application for search warrant of the subject premises was
not approved by the PDEA Regional Director or his authorized representative.
On the contrary, the search warrant issued by the RTC of Manila, Branch 17
satisfactorily complies with the requirements for the issuance thereof as
determined by the issuing court, thus:
chanRoblesvirt ualLawl ibrary
Pursuant to Section 2, Article 3 of the 1987 Constitution, Sections 2 to 5,
Rule 126 of the 2000 Rules on Criminal Procedure, modified by Section 12 of
Supreme Court En Bane Resolution in A.M. No. 03-08-02-SC dated January
27, 2004, and Certification dated October 28, 2009, it appearing to the
satisfaction of the undersigned after personally examining under oath Agent
Liwanag B. Sandaan and Agent Derween Reed both of Philippine Drug
Enforcement Agency Metro Manila Regional Office, that there is probable
cause, there are good and sufficient reasons, to believe that undetermined
quantity of assorted dangerous drugs, particularly shabu, including the
proceeds or fruits and those used or intended to be used by the respondents
as a means of committing the offense, you are hereby commanded to make
an immediate search at any time in the day or night of the premises above
described and forthwith seize and take possession of the undetermined
quantity of assorted dangerous drugs including the proceeds 01 fruits and
bring said property to the undersigned to be dealt with as the law directs. 19 cralawlawlib rary
Moreover, we find no merit in accused-appellants' claim that the RTC of
Manila, Branch 17, had no authority to issue the assailed search warrant
since the place to be searched is outside its territorial jurisdiction. As
aforecited, Section 12, Chapter V of A.M. No. 03-8-02-SC clearly authorizes
the Executive Judges and the Vice-Executive Judges of the RTC of Manila and
Quezon City to issue search warrants to be served in places outside their
territorial jurisdiction in special criminal cases such as those involving heinous
crimes, illegal gambling, illegal possession of firearms and ammunitions as
well as violations of the Comprehensive Dangerous Drugs Act of 2002, as in
this case, for as long as the parameters under the said section have been
complied with.
In the issuance of a search warrant, probable cause requires such facts and
circumstances that would lead a reasonably prudent man to believe that an
offense has been committed and the objects sought in connection with that
offense are in the place to be searched. There is no exact test for the
determination of probable cause in the issuance of search warrants. It is a
matter wholly dependent on the finding of trial judges in the process of
exercising their judicial function. When a finding of probable cause for the
issuance of a search warrant is made by a trial judge, the finding is accorded
respect by reviewing courts.20
Accused-appellants insist that they were not inside their house and were
inside the closed van when their house was searched. They allege that upon
forcibly breaking into their house through the use of an acetylene torch, the
members of the raiding party handcuffed them, dragged them outside and
held them for three hours inside a van while conducting the' search of the
premises. They thus argue that the shabu seized by the PDEA agents were
inadmissible in evidence.
We affirm the conviction of accused-appellants.
It is a fundamental rule that findings of the trial court which are factual in
nature and which involve the credibility of witnesses are accorded with
respect, more so, when no glaring errors, gross misapprehension of facts,
and speculative, arbitrary, and unsupportive conclusions can be gathered
from such findings.21 The reason behind this rule is that the trial court is in a
better position to decide the credibility of witnesses having heard their
testimonies and observed their deportment and manner of testifying during
the trial. This rule finds an even more stringent application where the trial
court's findings are sustained by the CA.22
After carefully reviewing the records of the case, we find no cogent reason to
overturn the findings of both the lower courts, which were adequately
supported by the evidence on record. It cannot be overemphasized that in
cases involving violations of the Dangerous Drugs Act, credence should be
given to the narration of the incident by the prosecution witnesses especially
when they are police officers who are presumed to have performed their
duties in a regular manner, unless there is evidence to the contrary.23
In the instant case, like the trial and the appellate courts, we are not
persuaded by accused-appellants' claim that they were not inside their house
but were inside a closed van when their house was searched. In weighing the
testimonies of the prosecution witnesses vis-a-vis that of the defense, we find
that the former is more worthy of credit. Both IO1 Pagaragan and SI2
Esteban clearly narrated how the search on the house of accused-appellants
was conducted. As aptly noted by the trial court and concurred in by the
appellate court, there were actually two phases of the search done in the
house of accused-appellants. The first or initial search was done at the
ground floor of the house, immediately after the PDEA agents gained entry.
101 Sandaan knocked on the house and a woman, later identified as Patricia
Punzalan slightly opened the door and when they introduced themselves as
PDEA agents and informed the occupant that they have a search warrant,
Patricia immediately tried to close the door but was prevented by the PDEA
agents from closing it and they were able to enter the premises. IO1
Pagaragan showed and read the search warrant in front of the accused-
appellants and the agents searched the house and immediately found several
heat-sealed transparent sachets of white crystalline substance of
suspected shabu. Immediately, the seized items were marked "ADP" in the
presence of accused-appellants and media practitioner Jimmy Mendoza. It
has been sufficiently shown by the prosecution that accused-appellants were
present when their house was searched. The pictures taken during the
marking and inventory and showing the accused-appellants in their house are
clear proof that they were present when their house was searched and the
illegal drugs found were seized. It was only after the marking of the drugs
and while the PDEA agents waited for the barangay officials to arrive that
accused-appellants were made to board the van. This explains the testimony
of Kagawad Edwin Razon that accused-appellants were not inside their house
when he arrived. After the barangay officials arrived, accused-appellants
were brought back to the house for the continuation of the search of the
upper floors but they found no additional contrabands. They then went back
to the ground floor to conduct inventory of the seized items.
The testimonies of the police officers who caught accused-appellants
in flagrante delicto in possession of illegal drugs during the conduct of a valid
search are usually credited with more weight and credence, in the absence of
evidence that they have been inspired by an improper or ill motive. Here,
there is no proof of any ill motive or odious intent on the part of the police
officers to impute such a serious crime to accused-appellants.
On the other hand, accused-appellants hammer on the supposed
inconsistencies in the testimonies of the witnesses such as whether barangay
officials were present at the time of the conduct of the search. The latter was
sufficiently explained by the prosecution while the other inconsistencies
pertain to minor details and are so inconsequential that they do not affect the
credibility of the witnesses nor detract from the established fact of illegal
possession of dangerous drugs.
We have previously held that discrepancies and inconsistencies in the
testimonies of witnesses referring to minor details, and not in actuality
touching upon the central fact of the crime, do not impair their credibility.
Testimonies of witnesses need only corroborate each other on important and
relevant details concerning the principal occurrence. In fact, such minor
inconsistencies may even serve to strengthen the witnesses' credibility as
they negate any suspicion that the testimonies have been rehearsed.24
Notably, Section 8, Rule 126 of the Revised Rules of Criminal
Procedure provides: chanRoblesvirtualLawlib rary
SEC. 8. Search of house, room, or premises to be made in presence of two
witnesses. - No search of a house, room, or any other premises shall be
made except in the presence of the lawful occupant thereof or any member of
his family or in the absence of the latter, two witnesses of sufficient age and
discretion residing in the same locality. cralawlawl ibrary
As correctly ruled by the CA, even if the barangay officials were not present
during the initial search, the search was witnessed by accused-appellants
themselves, hence, the search was valid since the rule that "two witnesses of
sufficient age and discretion residing in the same locality" must be present
applies only in the absence of either the lawful occupant of the premises or
any member of his family.
To successfully prosecute a case of illegal possession of dangerous drugs, the
following elements must be established: (1) the accused is in possession of
an item or object which is identified to be a prohibited drug; (2) such
possession is not authorized by law; and (3) the accused freely and
consciously possessed the said drug.25 In the case at bench, the prosecution
was able to establish with moral certainty the guilt of the accused-appellants
for the crime of illegal possession of dangerous drugs. Accused-appellants
were caught in actual possession of the prohibited drugs during a valid search
of their house. It bears stressing that aside from assailing the validity of the
search, accused-appellants did not deny ownership of the illegal drugs seized.
They have not proffered any valid defense in the offense charged for violation
of the Comprehensive Dangerous Drugs Act of 2002.
As to accused-appellants' assertion that the chain of custody rule has not
been complied with when no inventory or acknowledgment receipt signed by
Atty. Gaspe was submitted in evidence and that no evidence was shown as to
the condition of the specimen upon its presentation to Atty. Gaspe, who was
not presented in court to explain the discrepancy, we are also not persuaded.
This Court has time and again adopted the chain of custody rule, a method of
authenticating evidence which requires that the admission of an exhibit be
preceded by evidence sufficient to support a finding that the matter in
question is what the proponent claims it to be. This would include testimony
about every link in the chain, from the moment the item was picked up to the
time it is offered in evidence, in such a way that every person who touched
the exhibit would describe how and from whom it was received, where it was
and what happened to it while in the witness' possession, the condition in
which it was received and the condition in which it was delivered to the next
link in the chain. These witnesses would then describe the precautions taken
to ensure that there had been no change in the condition of the item and no
opportunity for someone not in the chain to have possession of the same.26
The Implementing Rules and Regulations of R.A. No. 9165 on the handling
and disposition of seized dangerous drugs provides as follows: chanRoblesvirtualLawl ibrary
SEC. 21. Custody and Disposition of Confiscated, Seized and/or Surrendered
Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors
and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory
Equipment. - The PDEA shall take charge and have custody of all dangerous
drugs, plant sources of dangerous drugs, controlled precursors and essential
chemicals, as well as instruments/paraphernalia and/or laboratory equipment
so confiscated, seized and/or surrendered, for proper disposition in the
following manner: chanRoblesvirtualLawli brary
(a) The apprehending officer/team having initial custody and control of the
drugs shall, immediately after seizure and confiscation, physically inventory
and photograph the same in the presence of the accused or the person/s
from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the
Department of Justice (DOJ), and any elected public official who shall be
required to sign the copies of the inventory and be given a copy thereof;
Provided, that the physical inventory and photograph shall be conducted at
the place where the search warrant is served; or at the nearest police station
or at the nearest office of the apprehending officer/team, whichever is
practicable, in case of warrantless seizures; Provided, further, that non-
compliance with these requirements under justifiable grounds, as long as the
integrity and the evidentiary value of the seized items are properly preserved
by the apprehending officer/team, shall not render void and invalid such
seizures of and custody over said items[.] cralawlawlibrary
It is essential for the prosecution to prove that the prohibited drug
confiscated or recovered from the suspect is the very same substance offered
in court as exhibit. Its identity must be established with unwavering
exactitude for it to lead to a finding of guilt.27 In this case, the chain of
custody of the seized illegal drugs was duly established from the time the
heat-sealed plastic sachets were seized and marked by 101 Pagaragan to its
subsequent turnover to Atty. Gaspe of the PDEA Office in Quezon City. 101
Pagaragan was also the one who personally delivered and submitted the
specimens composed of 293 sachets of shabu to the PNP Crime Laboratory
for laboratory examination. The specimens were kept in custody until they
were presented as evidence before the trial court and positively identified by
IO1 Pagaragan as the very same specimens he marked during the inventory.
The fact that the Receipt/Inventory of Property Seized was not signed by
Atty. Gaspe does not undermine the integrity and evidentiary value of the
illegal drugs seized from accused-appellants. The failure to strictly comply
with the prescribed procedures in the inventory of seized drugs does not
render an arrest of the accused illegal or the items seized/confiscated from
him inadmissible.28 What is of utmost importance is the preservation of the
integrity and the evidentiary value of the seized items, as the same would be
utilized in the determination of the guilt or innocence of the accused.29
With regard to the handling of the seized drugs, there are no conflicting
testimonies or glaring inconsistencies that would cast doubt on the integrity
thereof as evidence presented and scrutinized in court. It is therefore safe to
conclude that, to the unprejudiced mind, the testimonies show without a
doubt that the evidence seized from the accused-appellants at the time of the
search was the same one tested, introduced and testified to in court. In other
words, there is no question as to the integrity of the evidence against
accused-appellants.
In fine, we find no error on the part of the CA in affirming the trial court's
conviction of accused-appellants of illegal possession of dangerous drugs. The
prosecution has proven beyond reasonable doubt the guilt of accused-
appellants Jerry Punzalan and Patricia Punzalan of the crime charged. We
likewise find proper the modification by the trial court of the penalty imposed
to life imprisonment and a fine of P400,000.00
WHEREFORE, premises considered, the instant appeal is DISMISSED. The
Decision dated October 28, 2011 of the Court of Appeals in CA-G.R. CR HC
No. 04557 is hereby AFFIRMED.
With costs against the accused-appellants.
SO ORDERED. chanroblesvirtuallawl ibrary
G.R. No. 196052
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
JOCELYN POSADA y SONTILLANO and FRANCISCO POSADA y
URBANO, Appellants.
 DECISION
BRION, J.:
We resolve the appeal of accused-appellants Jocelyn Posada y Sontillano (Jocelyn) and
Francisco Posada y Urbano (Francisco) assailing the September 30, 2010 Decision1 of
the Court of Appeals (CA), docketed as CA-G.R. CR.-H.C. No. 03768. The CA Decision
affirmed with modification the January 13, 2009 Judgment 2 of the Regional Trial Court
(RTC), Branch 43, Virac, Catanduanes, finding accused-appellants guilty beyond
reasonable doubt of violating Section 11, Article II of Republic Act No. 9165, otherwise
known as the Comprehensive Dangerous Drugs Act of 2002.
The Case
In its January 13, 2009 Judgment, the RTC found accused-appellant Jocelyn guilty of
illegal possession of 2.2825 grams and accused-appellant Francisco guilty of illegal
possession of 24.2313 grams of methamphetamine hydrochloride, also known as shabu.
The RTC held, among others, that the prosecution was able to prove all the elements of
illegal possession of dangerous drugs. It found the search warrant, which led to the
immediate arrest of accused-appellants, valid and the chain of custody of the seized
items preserved. Accordingly, the RTC sentenced accused-appellant Jocelyn to suffer
the indeterminate penalty of ten (10) years and one (1) day, as minimum, to fourteen (14)
years, as maximum; and sentenced accusedappellant Francisco to suffer life
imprisonment. It also ordered them to pay fines of Three Hundred Thousand
(P300,000.00) Pesos and Four Hundred Thousand (P400,000.00) Pesos, respectively.
On appeal, the CA affirmed the RTC decision with the modification that accused-
appellant Jocelyn is sentenced to suffer the indeterminate penalty of twelve (12) years
and one (1) day, as minimum, to fourteen (14) years, as maximum. The CA added that
any question on the validity of the search warrant was closed in a September 21, 2006
Resolution,3 in which the RTC denied accused-appellants’ Motion to Quash Search
Warrant. The CA further ruled that the certification signed by accused-appellant Jocelyn
was not a confession but an acknowledgment of the fact that the police had conducted a
search of their premises by virtue of the search warrant; that the search was conducted
in an orderly manner; and that the search was conducted in her presence and in the
presence of Kagawad Jena Arcilla (Kag. Arcilla).
On October 27, 2010, the accused-appellants filed their notice of appeal following the
September 30, 2010 Decision on the ground that it was contrary to facts, law, and
applicable jurisprudence.
Our Ruling
We affirm the accused-appellants’ conviction.
The search warrant was valid.
The Office of the Solicitor General correctly argued that any question as to the validity of
the search warrant was closed by the September 21, 2006 Resolution of the RTC, which
the accused-appellants opted not to question further. As mentioned by the CA, the
judicial finding of probable cause in issuing a search warrant should not be doubted
when the judge personally examines the applicant and/or witnesses and there is no basis
to doubt his reliability and competence in evaluating the evidence before him. 4With
regard to the designation of the place to be searched, the RTC sufficiently justified that
the search warrant particularly described the place to be searched: a sketch showing the
location of the house to be searched was attached to the application and the search
warrant pointed to only one house in the area. 5
A long-standing rule is that a description of the place to be searched is sufficient if the
officer with the warrant can, with reasonable effort, ascertain and identify the place
intended and distinguish it from other places in the community. Any designation or
description known to the locality that points out the place to the exclusion of all others,
and on inquiry leads the officers unerringly to it, satisfies the constitutional
requirement.6 Taking from American Jurisprudence, "[t]he determining factor as to
whether a search warrant describes the premises to be searched with sufficient
particularity is not whether the description is sufficient to enable the officer to locate and
identify the premises with reasonable effort." 7
The elements of illegal possession of dangerous drugs were established.
For the successful prosecution of illegal possession of dangerous drugs the following
essential elements must be established: (a) the accused is in possession of an item or
object that is identified to be a prohibited or dangerous drug; (b) such possession is not
authorized by law; and (c) the accused freely and consciously possesses the said
drug.8 he prosecution was able to establish the presence of all the required elements for
violation of Section 11, Article II of Republic Act No. 9165.
The presented evidence showed that early in the morning of April 8, 2006, police officers
went to the house of the accused-appellants in Virac, Catanduanes, to implement a
search warrant. After the search warrant was read, accused-appellant Francisco argued
with the police officers though later insisted that he be allowed to have breakfast before
anything else. While PO1 Jigger Tacorda (PO1 Tacorda) and Kagawad Eva Sarmiento
(Kag. Sarmiento) were escorting him to the nearby eatery, they saw him throw something
on the pavement. PO1 Tacorda immediately accosted and reprimanded accused-
appellant Francisco while Kag. Sarmiento picked up the plastic sachets containing a
white crystalline substance. A total of thirtyseven (37) sachets were recovered from the
pavement which were photographed by PO3 Raul Santos (PO3 Santos), and then were
turned over to the crime laboratory for inventory, documentation, and examination. The
results of the examination of the contents of the thirty-seven (37) plastic sachets done in
the crime laboratory showed that these contained shabu.
Thereafter, Kag. Arcilla and accused-appellant Jocelyn accompanied P/Supt. Samuel
Villamer, PO1 Julius Jacinto (PO1 Jacinto), PO1 Arlan Sevilla (PO1 Sevilla), and PO1
Tacorda to the place designated in the search warrant. While searching the kitchen, PO1
Jacinto came upon a plastic bag of charcoal near the stove. He examined its contents
and found a matchbox hidden between the pieces of charcoal. Inside the matchbox were
five (5) heat-sealed plastic transparent sachets containing a white crystalline substance.
PO3 Santos photographed the plastic sachets and then turned these over for inventory
and documentation. Upon examination of the contents of the five (5) plastic sachets in
the crime laboratory, the forensic chemist found that they likewise contained shabu.
When accused-appellant Jocelyn was asked during trial about the picture showing the
location of the charcoal stove, she categorically declared that it was "charcoal and the
place where I place the charcoal."9 Thus, the RTC correctly appreciated the admission
that she had control over this item.10
From these established facts, it is clear that accused-appellants knowingly possessed
shabu – a prohibited drug – without legal authority to do so in violation of Section 11,
Article II of Republic Act No. 9165.
We rely on the RTC’s assessment of the credibility of the prosecution witnesses, absent
any showing that certain facts of weight and substance bearing on the elements of the
crime have been overlooked. We particularly note that the accused-appellants even
testified that they did not know any reason or ill motive on the part of the police officers to
charge and prosecute them for illegal possession of dangerous drugs. In addition, the
police officers are presumed to have regularly performed their official duties, absent
contrary convincing evidence.
The Chain of Custody was preserved.
After a careful reading of the records, we also find that the chain of custody over the
forty-two (42) plastic sachets of shabu was not broken. Based on the records, PO1
1âwphi1
Jacinto narrated how he found the five (5) heatsealed transparent plastic sachets and
how he turned over said items to PO1 Sevilla after they were photographed by PO3
Santos. Kag. Arcilla, who was present during the search, corroborated his testimony. The
RTC found that PO1 Jacinto properly placed all five (5) plastic sachets in a transparent
plastic bag which was sealed with masking tape and duly signed by him. As for the thirty-
seven (37) plastic sachets, PO1 Sevilla testified that Kag. Sarmiento saw Francisco
throw the plastic sachets on the pavement; and that Kag. Sarmiento and he picked up
said plastic sachets. The RTC found that all thirty-seven (37) plastic sachets were placed
in a transparent plastic bag which was sealed with masking tape duly signed by Kag.
Sarmiento. Finally, PSI Josephine Macura Clemen (PSI Clemen) narrated that the
fortytwo (42) heat-sealed plastic sachets containing white crystalline substances were
turned over to the crime laboratory for qualitative examination; that said confiscated
items were thereafter found positive for shabu, and were identified by PSI Clemen
herself before the RTC.
It is settled that the failure to strictly follow the directives of Section 21, Article II of RA
Republic Act No. 9165 is not fatal and will not necessarily render the items confiscated
inadmissible. What is important is that the integrity and the evidentiary value of the
seized items are preserved. The succession of events in this case show that the items
seized were the same items tested and subsequently identified and testified to in court.
We thus hold that the integrity and evidentiary value of the drugs seized from the
accused-appellants were duly proven not to have been compromised.
Signing the Certification of Orderly Search was not an extrajudicial confession.
Finally, as the CA correctly pointed out, when accused-appellant Jocelyn signed the
Certificate of Orderly Search, she did not confess her guilt to the crime charged. She
merely admitted to the fact that a lawful search was conducted while she was in the
same premises.
The CA imposed the correct penalty.
We sustain the penalty imposed by the CA as it is in accordance with the penalty
prescribed under Section 11, Article II of RA No. 9165, in relation to Section 1 of RA No.
4103, as amended, otherwise known as the Indeterminate Sentence Law.
WHEREFORE, the September 30, 2010 Decision of the Court of Appeals in CA-G.R.
CR.-H.C. No. 03768 is AFFIRMED.
SO ORDERED.
G.R. No. 212635
THE PEOPLE OF PHILIPPINES, Plaintiff-Appellee,
vs.
CHARLIE SORINy TAGAYLO, Accused-Appellant.
 DECISION
PERLAS-BERNABE, J.:
Before the Court is an ordinary appeal1 filed by accused-appellant Charlie Sorin y
Tagaylo (Sorin) assailing the Decision2 dated February 27, 2014 of the Court of Appeals
(CA) in CA-G.R. CR-HC No. 00953-MIN, which affirmed in toto the
Judgment3 promulgated on August 3, 2011 of the Regional Trial Court of Misamis
Oriental, Branch 25 (RTC) in Criminal Case No. 2005-694, finding Sorin guilty beyond
reasonable doubt of violating Section 5, Article II4 of Republic Act No. (RA) 9165,
otherwise known as the "Comprehensive Dangerous Drugs Act of 2002."
The Facts
In an Information dated November 7, 2005, Sorin was charged before the RTC for
5 during the buy-bust operation for the presence of illegal drugs; (b) Sorin’s hands and the
violating Sections 5 and 15,6 Article II of RA 9165, viz.:
The undersigned assistant provincial prosecutor hereby accuses CHARLIE SORIN y
TAGAYLO for the crime of VIOLATION OF SEC. 5 & 15 OF ARTICLE II of R.A. NO.
9165, committed as follows:
That on or about 8:20 in the evening of November 2, 2005 at Amoros, El Salvador,
Misamis Oriental, Philippines and within the jurisdiction of this Honorable Court, the
above named accused , without authority of the law, did then and there willfully,
unlawfully and feloniously sell two (2) sachets containing white crystalline substance
positive to [sic] the presence of METHAMPHETAMINE HYDROCHLORIDE (SHABU), a
dangerous drug, with a combined weight of 0.12 gram to a poseur-buyer for Four
Hundred Pesos (PHP400.00) in violation of Section 5, Article II of Republic Act 9165.
Contrary to law.
According to the prosecution, on November 2, 2005, 7 the Philippine National Police
(PNP) intelligence section chief of El Salvador, Misamis Oriental received a report that
Sorin was selling illegal drugs at his residence in Barangay Amoros, El Salvador,
Misamis Oriental. Prior to this date, or on October 25, 2005, a test-buy was conducted by
the PNP where Sorin sold illegal drugs to a civilian asset. As a result, Police Chief
Inspector Rolindo Soguillon (PCI Soguillon) formed a buy-bust team composed of PO2
Edgardo Dador (PO2 Dador) and PO1 Sonny Adams Cambangay (PO1 Cambangay), as
poseur-buyers, and PO3 Edilberto Estrada, SPO1 Graciano Mugot, Jr. (SPO1
Mugot),8 SPO1 Samuel Madjos, and SPO2 Elias Villarte, as back-up team. The poseur-
buyers were provided with four (4) one hundred peso bills as marked money. 9
At around 7:30 in the evening, the buy-bust team proceeded to the target area. PO2
Dador and PO1 Cambangay approached Sorin’s residence, knocked on the door, and
were eventually let in. They asked if they could buy shabu, and Sorin responded that
each sachet costs 200.00. PO2 Dador offered to purchase two (2) sachets. After
examining said sachets, each containing white crystalline substance, PO2 Dador gave
Sorin the 400.00 marked money. PO2 Dador then tapped Sorin on the shoulder, brought
him outside the house where he and the rest of the buy-bust team introduced themselves
as police officers, and arrested Sorin. The latter was then brought to the police station. 10
At the police station, PO2 Dador turned over the seized items and the marked money to
SPO1 Mugot, who marked the same, prepared the inventory and request for laboratory
examination, and sent the seized items to the PNP Crime Laboratory. 11
The PNP Crime Laboratory tested the following items: (a) the sachets seized from Sorin
marked money used to purchase the aforementioned illegal drugs for ultraviolet
fluorescent powder; and (c) Sorin’s urine for the presence of illegal drugs. The seized
sachets tested positive for shabu,12 while Sorin’s hands and the marked money used
contained traces of ultraviolet fluorescent powder. 13 Also, Sorin’s urine tested positive for
the presence of shabu.14
For his part, Sorin claimed that the sachets of shabu were planted by the police officers,
and that no buy-bust operation occurred on November 2, 2005. Sorin maintained that on
the alleged date of the buy-bust operation, while he was resting at his residence with his
wife and three (3) children, he heard someone calling from outside but ignored it.
Afterwards, PO2 Dador and PO1 Cambangay barged in by forcibly opening the door to
his house, handcuffed him, and then searched his house without a warrant. Thereafter,
he was brought to the police station where he was photographed with
the shabu supposedly seized from his residence. He was also compelled to sign a
document which turned out to be a waiver consenting to the test on his urine for traces of
drugs. Sorin further stated that PCI Soguillon promised to release him after taking his
picture, but he was brought instead to the Provincial Prosecutor’s Office where he was
charged of selling shabu.15
During trial, the defense presented the testimonies of Rhiza Jane A. Lopez (Lopez) and
Enriquita De Paira (De Paira) to corroborate Sorin’s assertions. Lopez testified that she
(upon the request of Sorin’s wife and with the use of her mobile phone) photographed
the door of Sorin’s residence, which she claimed was destroyed. In a similar light, De
Paira testified that on the evening of November 2, 2005, she passed by Sorin’s residence
and saw two (2) persons kicking the door of the latter’s house and after destroying the
same, gained entry therein. She then heard Sorin’s wife and children scream. After
several minutes, the two (2) persons with Sorin left and boarded a van. 16
 The RTC Ruling
In a Judgment17 promulgated on August 3, 2011, the RTC found Sorin guilty beyond
reasonable doubt of violating Section 5, Article II of RA 9165 and accordingly, sentenced
him to Life Imprisonment and ordered him to pay a fine in the amount of 500,000.00. 18
In convicting Sorin, the RTC gave credence to the straightforward and categorical
testimonies of the police officers that a buy-bust operation took place where the seized
items and the marked money were recovered and marked, and that when the seized
sachets were transmitted to the PNP Crime Laboratory, the same tested positive
for methamphetamine hydrochloride. Moreover, Sorin’s hands and the marked money
similarly tested positive for ultraviolet fluorescent powder. The RTC also declared that
the prosecution was able to account for every link in the chain of custody of the seized
items. Conversely, it gave no weight to the testimony of Sorin, who merely denied the
existence of the buy-bust operation, and those of his two (2) witnesses which did not
refute its occurrence.19
However, the RTC declared the results of the laboratory examination of Sorin’s urine
inadmissible as evidence, considering that his consent to the examination was obtained
without the assistance of counsel. Consequently, Sorin was acquitted of the charge of
violating Section 15, Article II of RA 9165.20
Aggrieved, Sorin appealed21 his conviction before the CA.
The CA Ruling
In a Decision22 dated February 27, 2014, the CA affirmed Sorin’s conviction in toto.23
It agreed with the RTC’s finding that a valid buy-bust operation, resulting in the seizure of
two (2) sachets containing shabu, had occurred, and that, notwithstanding the police
officers’ lapses in complying with the procedure enshrined in Section 21, Article II of RA
9165, the identity and integrity of the corpus delicti, or the seized drug itself, were
nevertheless preserved. Finally, the CA opined that Sorin failed to rebut by clear and
convincing evidence the presumption of regularity in the performance of official duties
enjoyed by the police officers involved in the buy-bust operation.24 Thus, Sorin’s
conviction was sustained.
Undaunted, Sorin filed the instant appeal. 25
The Issue Before the Court
The issue for the Court’s resolution is whether or not Sorin’s conviction for violation of
Section 5, Article II of RA 9165 should be upheld.
The Court’s Ruling
The appeal is meritorious.
In order to convict an accused charged with violating Section 5, Article II of RA 9165, the
prosecution must be able to prove beyond reasonable doubt: (a) the identity of the buyer
and the seller, the object and the consideration; and (b) the delivery of the thing sold and
the payment.26
Accordingly, it is of paramount importance for the prosecution to establish that the
transaction actually took place, and to present the corpus delicti, i.e., the seized drug/s,
before the court.27
Similarly, it must be shown that the integrity and evidentiary value of such seized items
have been preserved. In other words, the dangerous drug presented in court as evidence
against an accused must be the same as that seized from him. The chain of custody
requirement ensures that unnecessary doubts concerning the identity of the evidence are
removed.28 In People v. Viterbo,29 citing People v. Cervantes,30 the Court had occasion to
elaborate on the requirement’s rationale:
In every prosecution for illegal sale of dangerous drugs under Section 5, Article II of RA
9165, the following elements must concur: (a) the identities of the buyer and seller,
object, and consideration; and (b) the delivery of the thing sold and the payment for it. As
the dangerous drug itself forms an integral and key part of the corpus delicti of the
crime, it is therefore essential that the identity of the prohibited drug be
established beyond reasonable doubt. Thus, the prosecution must be able to
account for each link in the chain of custody over the dangerous drug, from the
moment it was seized from the accused up to the time it was presented in court as
proof of the corpus delicti. Elucidating on the custodial chain process, the Court, in the
case of People v. Cervantes, held:
As a mode of authenticating evidence, the chain of custody rule requires that the
admission of an exhibit be preceded by evidence sufficient to support a finding that the
matter in question is what the proponent claims it to be. In context, this would ideally
include testimony about every link in the chain, from the seizure of the prohibited drug up
to the time it is offered into evidence, in such a way that everyone who touched the
exhibit would describe how and from whom it was received, where it was and what
happened to it while in the witness’ possession, the condition in which it was received,
and the condition in
which it was delivered to the next link in the chain. x x x.
The chain of custody requirement "ensures that unnecessary doubts respecting the
identity of the evidence are minimized if not altogether removed."31 (Emphases and
underscoring supplied)
As to its procedural mechanics, Section 21, 32 Article II of RA 9165 requires that: (a) the
apprehending team that has initial custody over the seized drugs immediately conduct an
inventory and take photographs of the same in the presence of the accused or the
person from whom such items were seized, or the accused’s or the person’s
representative or counsel, a representative from the media, the Department of Justice,
and any elected public official who shall then sign the copies of the inventory; and (b) the
seized drugs be turned over to the PNP Crime Laboratory within 24 hours from its
confiscation for examination purposes.
Note that while the "chain of custody rule" demands utmost compliance from the
aforesaid officers, Section 21 of the Implementing Rules and Regulations (IRR) of RA
916533 as well as jurisprudence, nevertheless provides that non-compliance with the
requirements of this rule will not automatically render the seizure and custody of the
items void and invalid, so long as: (a) there is a justifiable ground for such non-
compliance; and (b) the evidentiary value of the seized items are properly
preserved. Hence, any deviation from the prescribed procedure must be justified, but, at
all times, should not affect the integrity and evidentiary value of the confiscated items.34
In this case, the Court finds that the prosecution failed to establish the identity of the
substance allegedly confiscated from Sorin due to unjustified gaps in the chain of
custody, thus warranting his acquittal.
Records bear out that PO2 Dador, i.e., the apprehending officer who seized the sachets
from Sorin during the buy-bust operation conducted on November 2, 2005, failed to mark
the same and, instead, turned them over unmarked to SPO1 Mugot35 who was the one
who conducted the marking; prepared the request for laboratory examination of the
seized sachets, Sorin’s urine, and the marked money; delivered the said request,
together with the seized sachets and marked money, to the PNP Crime Laboratory; and
later received the examination results.36 PO2 Dador had, in fact, admitted that the
sachets he seized from Sorin were not even marked in his presence. As his cross-
examination reveals:
Atty. Alvyn R. Lopena (Atty. Lopena): It was also in the course of that investigation by
[SPO1 Mugot] that the markings on the exhibit were made, right?
PO2 Dador: After the investigation, Sir.
Q: It was only [SPO1 Mugot] who made the markings of those two (2) sachets of shabu?
A: Yes, Sir.
Q: Because after the investigation you already left to the office [sic]?
A: Yes, Sir.
Q: [PO2 Dador], you have no personal knowledge as to the markings made by
[SPO1 Mugot] because you were not there when the markings were made?
A: Yes, Sir.
xxxx
Q: In other words [PO2 Dador], from the time you turned over the two (2) sachets
of shabu, of alleged shabu that you confiscated from the possession of [Sorin]
and those four (4) P100.00 bills to [SPO1 Mugot], you have no idea anymore as to
the where about [sic], as to the custody of those pieces of evidence, thereafter?
A:Yes, Sir.
xx x x37 (Emphases and underscoring supplied)
Further, during his re-cross examination, PO2 Dador reiterated that he did not place any
markings on the sachets of shabu or the marked money, to wit:
Atty. Lopena: [PO2 Dador], you said that you turned over the two (2) sachets
of shabu that you confiscated from the possession of [Sorin] [to SPO1 Mugot], before
you turned over [the sachets of shabu], did you place any identifying markings on the
sachet?
PO2 Dador: I did not place any [markings], Sir.
x x x x38
For his part, SPO1 Mugot testified that he accompanied the back-up members of the
team while PO2 Dador and PO1 Cambangay transacted with Sorin. He stayed 200
meters away from Sorin’s residence, and later saw the poseur-buyers return with Sorin in
tow.39 At the police station, PO2 Dador handed to him the two (2) sachets of shabu and
the marked money used during the transaction. 40 SPO1 Mugot stated that he did not
mark the sachets seized from Sorin. He marked, instead, the "transparent plastic
cellophane" wherein he placed the seized sachets to wit:
Pros. Azis: You also mentioned about the [sic] 2 sachets of shabu which [PO2 Dador]
handed to you. Are these the same 2 sachets of shabu which [PO2 Dador] handed to
you?
SPO1 Mugot: Yes, Ma’am, but I placed that in a transparent plastic cellophane with
marking Exhibit "A".
Q: Are you referring to this transparent plastic cellophane?
A: Yes, Ma’am.
Q: Were you the one who made the marking on this transparent plastic
cellophane?
A:Yes, Ma’am.41
xx x x
Atty. Lopena: So you placed the marking on the sachets itself?
SPO1 Mugot: No, it was placed in the cellophane where the sachets were
placed.42 (Emphases and underscoring supplied)
The Court cannot over-emphasize the significance of marking in illegal drugs cases. The
marking of the evidence serves to separate the marked evidence from the corpus of all
other similar or related evidence from the time they are seized from the accused until
they are disposed of at the end of the criminal proceedings, thus, preventing switching,
planting, or contamination of evidence. 43 Hence, in People v. Sabdula,44 the Court
acquitted the accused on the ground of failure to mark the plastic sachets confiscated
during the buy-bust operation, to wit:
How the apprehending team could have omitted such a basic and vital procedure in the
initial handling of the seized drugs truly baffles and alarms us. We point out that
succeeding handlers of the specimen would use the markings as reference. If at the first
or earliest reasonably available opportunity, the apprehending team did not mark the
seized items, then there was nothing to identify it later on as it passed from hand to
hand. Due to the procedural lapse in the first link of the chain of custody, serious
uncertainty hangs over the identification of the shabu that the prosecution introduced into
evidence.
We are not unaware that the seized plastic sachet already bore the markings "BC 02-01-
04" when it was examined by Forensic Chemist Jabonillo. In the absence, however, of
1avvphi1
specifics on how, when and where this marking was done and who witnessed the
marking procedure, we cannot accept this marking as compliance with the required chain
of custody requirement. There was also no stipulation between the parties regarding the
circumstances surrounding this marking. We note in this regard that it is not enough that
the seized drug be marked; the marking must likewise be made in the presence of the
apprehended violator. As earlier stated, the police did not at any time ever hint that they
marked the seized drug.45
In this case, SPO1 Mugot admitted that he did not mark the plastic sachets which
contained the seized drugs, but instead placed the marking on the "transparent plastic
cellophane" wherein he placed the seized sachets. To the Court’s mind, the act of
marking only the cellophane and not the individual plastic sachets renders the corpus
delicti highly susceptible to tampering, switching, planting, and contamination of the
evidence – the very acts which the requirement of marking seeks to prevent. As the
cellophane passed hands, it can now no longer be determined with certainty that its
contents have remained intact, especially considering the dearth of testimony from SPO1
Mugot that the cellophane was tightly sealed or, at the very least, secured.
With these lapses unveiled from the foregoing testimonies, the Court is unconvinced that
the chain of custody rule had been substantially complied with. Not only did the
apprehending officer who had initial custody over the seized drugs, i.e., PO2 Dador, fail
to mark the same or even witness its alleged marking, but also the officer to which the
marking of the seized items was attributed to, i.e., SPO1 Mugot, himself disclaimed that
he had done such marking and admitted that he only marked a transparent plastic
cellophane container, and not the individual sachets PO2 Dador had turned-over to him
containing the seized drugs themselves. Thus, there is no gainsaying that the integrity
and evidentiary value of the corpus delicti had been compromised.
It is well-settled that in criminal prosecutions involving illegal drugs, the presentation of
the drugs which constitute the corpus delicti of the crime calls for the necessity of proving
with moral certainty that they are the same seized items. 46 The lack of conclusive
identification of the illegal drugs allegedly seized from the accused strongly militates
against a finding of guilt,47 as in this case. Therefore, as reasonable doubt persists on the
identity of the drugs allegedly seized from the accused, the latter’s acquittal should come
as a matter of course.
WHEREFORE, the appeal is GRANTED. The Decision dated February 27, 2014 of the
Court of Appeals in CA-G.R. CR-HC No. 00953- MIN is hereby REVERSED and SET
ASIDE. Accordingly, accused-appellant Charlie Sorin y Tagaylo is ACQUITTED of the
crime of violation of Section 5, Article II of Republic Act No. 9165. The Director of the
Bureau of Corrections is ordered to cause his immediate release, unless he is being
lawfully held for any other reason.
SO ORDERED.
G.R. No.192284
ALEX TIONCO y ORTEGA, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
RESOLUTION
DEL CASTILLO, J.:
Assailed in this Petition for Review on Certiorari under Rule 45 of the Rules of Court is
the January 21, 2010 Decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 31924,
which affirmed the August 29, 2008 Amended Decision2 of the Regional Trial Court
(RTC), Manila, Branch 11 in Criminal Case No. 02- 205012 finding petitioner Alex
Tionco3 y Ortega (petitioner) guilty beyond reasonable doubt of violation of Section 11(3),
Article II of Republic Act No. 9165 (R.A. 9165) or The Comprehensive Dangerous Drugs
Act of 2002. Also questioned is the CA's May 13, 2010 Resolution4 denying the motion
for reconsideration thereto.
Factual Antecedents
In an Amended Information5 dated September 4, 2002, petitioner was charged with
violation of Section 11(3), Article II of R.A. 9165, the pertinent portions of which read:
That on or about July 24, 2002, in the City of Manila, Philippines, the said accused,
without being authorized by law to possess any dangerous drug, did then and there
willfully, unlawfully and knowingly have in his possession and under his custody and
control white crystalline substance known as shabu placed in one (1) heat-sealed
transparent plastic sachet weighing ZERO AND POINT ZERO FOUR SEVEN (0.047)
GRAM, containing methylamphetamine hydrochloride, a dangerous drug, without the
corresponding license or prescription thereof.
Contrary to law.6
Petitioner entered a plea of not guilty to the charge upon his arraignment on December
9, 2002.
During the pre-trial, the prosecution dispensed with the testimony of Forensic Chemist
P/Insp. Judycel Macapagal (P/Insp. Macapagal) of the Western Police District (WPD)
Crime Laboratory after the defense admitted that the drug specimen, together with the
letter-request for laboratory examination, were personally delivered by PO1 Elymar
Garcia (PO1 Garcia) to P/Insp. Macapagal and that the said specimen weighing 0.047
gram tested positive for shabu per her Chemistry Report.7 Likewise dispensed with after
a stipulation during the trial was the testimony of the case investigator, PO1 Garcia.
Version of the Prosecution
At around 3:45 in the afternoon of July 24, 2002, PO1 Joel G. Sta. Maria (PO1 Sta.
Maria) and PO1 Fernando Reyes were conducting an anti-criminality patrol in Parola
Compound, Tondo, Manila. From a distance of about three meters, they saw petitioner
holding and examining a plastic sachet with white crystalline substance believed to be
shabu. They approached petitioner and after ascertaining the contents of the plastic
sachet, confiscated the same. Petitioner was arrested, told of his alleged violation, and
apprised of his constitutional rights. Thereupon, petitioner and the confiscated plastic
sachet were brought to the police station where the seized item was marked by PO1 Sta.
Maria with petitioner’s initials "ATO" before turning it over to PO1 Garcia for investigation
and disposition. PO1 Garcia prepared a letter request for the examination of the
substance found inside the plastic sachet by the WPD Crime Laboratory. Together with
PO1 Sta. Maria, PO1 Garcia then brought the seized item to the crime laboratory, which
after examination by P/Insp. Macapagal, was found to be positive for methamphetamine
hydrochloride or shabu.
Version of the Defense
Petitioner denied the charges against him. He recounted that in the morning of July 24,
2002, he was sitting in front of his uncle’s house when policemen approached and
arrested him. When he asked them why he was being arrested, he was merely told to
follow their instructions. He was brought to Police Station 2 where he was frisked but
nothing illegal was found on him. He was detained after being informed that he violated
the law pertaining to drugs. PO1 Sta. Maria demanded P6,000.00 from him in exchange
for his release but no money was forthcoming.
Ruling of the Regional Trial Court
The RTC, in its Amended Decision8 of August 29, 2008, convicted petitioner, viz:
WHEREFORE, the foregoing premises considered, the Court in Criminal Case No. 02-
205012, finds accused Alex Tionco y Ortega GUILTY beyond reasonable doubt of the
crime of violation of Section 11(3), Art. II of R.A. 9165, and sentences him to
imprisonment of twelve (12) years and one (1) day to fifteen (15) years and to pay a fine
of P300,000.00.
SO ORDERED.9
Ruling of the Court of Appeals
On appeal, the CA found the elements of illegal possession of dangerous drug present in
the case. Moreover, it accorded the police officers the presumption of regularity in the
performance of their duties since they were not impelled by improper motive in imputing
the crime against petitioner. The CA also upheld the integrity and evidentiary value of the
confiscated item after observing that its chain of custody was duly established. On the
other hand, it did not give merit to petitioner’s assertion that it was highly improbable for
him to openly display the sachet of shabu in broad daylight and for the police officers to
see the same at a distance of three meters. This is in light of PO1 Sta. Maria’s positive
identification of petitioner as the person who unlawfully possessed the illegal drug. Anent
the alleged inconsistency in the testimony of the said police officer with respect to
petitioner’s position at the time he was arrested, i.e., whether he was facing his
companion or leaning on the wall, the CA ratiocinated that the same is a peripheral
matter which is inconsequential to the determination of petitioner’s guilt. Thus, the
dispositive portion of the CA’s January 21, 2010 Decision: 10
WHEREFORE, the Amended Decision dated August 29, 2008 of the trial court is
affirmed.
SO ORDERED.11
Petitioner filed a Motion for Reconsideration, 12 which was denied in a Resolution13 dated
May 13, 2010.
Hence, this Petition for Review on Certiorari.
Issues
I.
WHETHER THE COURT OF APPEALS GRAVELY ERRED IN GIVING FULL WEIGHT
AND CREDENCE TO THE PROSECUTION’S EVIDENCE [NOTWITHSTANDING] THE
APPREHENDING TEAM’S FAILURE TO PROVE THE INTEGRITY AND IDENTITY OF
THE ALLEGED CONFISCATED SHABU.
II.
WHETHER THE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE
PETITIONER’S CONVICTION DESPITE THE PREVAILING IRREGULARITIES IN THE
APPREHENDING OFFICERS’ PERFORMANCE OF THEIR OFFICIAL DUTIES.14
The Court’s Ruling
The Petition is not impressed with merit.
The well-established rule is "that findings of the trial courts which are factual in nature
and which involve credibility are accorded respect when no glaring errors; gross
misapprehension of facts; or speculative, arbitrary and unsupported conclusions can be
gathered from such findings."15 "[T]he determination by the trial court of the credibility of
witnesses, when affirmed by the appellate court, is accorded full weight and credit as
well as great respect, if not conclusive effect."16 Here, there is no compelling reason to
deviate from the findings of both the trial and appellate courts as explained hereunder.
"For illegal possession of regulated or prohibited drugs, the prosecution must establish
the following elements: (1) the accused is in possession of an item or object, which is
identified to be a prohibited drug; (2) such possession is not authorized by law; and (3)
the accused freely and consciously possessed the drug." 17 As correctly found by the CA,
the prosecution was able to establish through testimonial, documentary and object
evidence the aforesaid elements. The circumstances on how petitioner was seen holding
and examining a piece of plastic sachet containing white crystalline substance, how the
same was confiscated from him by the police officers, and his eventual arrest were aptly
narrated by PO1 Sta. Maria in a direct and consistent manner. In open court, the same
witness positively identified petitioner as the person holding the plastic sachet.18 He also
identified the plastic sachet marked "ATO" as the same item confiscated from
petitioner.19 There is nothing on record to show that petitioner was legally authorized to
possess the same. And having been caught in flagrante delicto, there is prima facie
evidence that petitioner freely and consciously possessed the drug,20 which he failed to
rebut. Indeed, all the elements of the offense charged are obtaining in this case.
The Court finds unpersuasive petitioner’s contention that it is highly improbable and
contrary to human experience that he would hold and examine the subject plastic sachet
with people around and in broad daylight. It has been observed in many cases that drug
pushers sell their prohibited articles to any prospective customer, be he a stranger or not,
in private as well as in public places, even during daytime. Undeniably, drug pushers
have become increasingly daring, dangerous and, worse, openly defiant of the law.
Hence, what matters is not the time or place where the violation was committed but the
acts constituting the violation of the dangerous drug law. 21
Further, the alleged inconsistency in PO1 Sta. Maria’s testimony pertaining to petitioner’s
actual position when he was said to be seen holding the sachet of shabu is too trivial and
irrelevant to the elements of the crime. This Court has ruled that "inconsistencies in the
testimonies of witnesses which refer to minor and insignificant details cannot destroy
their credibility. Such minor inconsistencies even guarantee truthfulness and candor." 22
With respect to the seized illegal substance, the presentation of the drug itself constitutes
the corpus delicti of the offense and its existence is indispensable to a judgment of
conviction. It behooves upon the prosecution to establish beyond reasonable doubt the
identity of the narcotic substance. It must be shown that the item subject of the offense is
the same substance offered in court as exhibit. 23 The chain of custody requirements
provided for in Section 21, Article II of R.A. 9165 performs this function as it ensures the
preservation of the integrity and evidentiary value of the item so that unnecessary doubts
concerning the identity of the evidence are removed. 24
In this case, petitioner attempts to raise doubts on the identity of the item confiscated
from him. He asserts that there was failure on the part of the police officers to preserve
the integrity and evidentiary value of the seized item as no physical inventory thereof was
conducted, or photograph of it taken, immediately upon seizure, in violation of the
procedures provided by law.
Petitioner’s assertions are untenable. It is significant to note that the defense did not
question the admissibility of the seized item as evidence during trial. In no instance did
he intimate before the trial court that there were lapses in the handling and safekeeping
of the item that might affect its admissibility, integrity and evidentiary value. It was only
during the appeal to the CA that he questioned the same. Settled is the rule that no
1âwphi1
cavil that the chain of custody of the seized item was shown to not have been broken,
and, hence, its integrity and evidentiary value properly preserved.
Finally, the CA correctly rejected petitioner's defenses of denial and extortion for being
self-serving and uncorroborated by strong and convincing evidence. Such line of defense
must fail in light of the positive testimony of the prosecution witness identifying petitioner
as the unlawful possessor of the subject shabu.
All told, the Court sustains petitioner's conviction for violation of Section 11, Article II of
R.A. 9165. There being no aggravating or mitigating circumstance, the Court likewise
affirms the penalty imposed upon him which is an indeterminate sentence of twelve (12)
years and one '(1)day to fifteen (15) years and a fine of P300,000.00, the same being
within the range of the penalty provided under Sec. 11(3), 28 Article II of R.A. 9165.
WHEREFORE, the Petition for Review on Certiorari is DENIED. The assailed January
21, 2010 Decision and May 13, 2010 Resolution of the Court of Appeals in CA-G.R. CR
No. 31924 are AFFIRMED.
SO ORDERED.

question will be entertained on appeal unless it had been raised in the court below as
G.R. No. 207988
enunciated in People v. Sta. Maria25 and reiterated in subsequent cases.26
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
Besides, while there was indeed no physical inventory conducted and no photograph of
vs.
the seized item was taken, the Court has already ruled in several cases that the failure of
BRIAN MERCADO y SARMIENTO, Accused-Appellant.
the arresting officers to strictly comply with the law is not fatal and will not render an
accused’s arrest illegal or the items seized/confiscated from him inadmissible. "What is of
utmost importance is the preservation of the integrity and the evidentiary value of the DECISION
seized items, as the same would be utilized in the determination of the guilt or innocence
of the accused."27 Here, after petitioner was arrested and the suspected shabu was PEREZ, J.:
confiscated from him by PO1 Sta. Maria, the latter immediately brought the item to the
police station where he marked the plastic sachet with petitioner’s initials "ATO," and Before this Court is an appeal from the Decision1 of the Court of Appeals (CA) in CA-G.R.
turned it over to the investigator PO1 Garcia. The latter, together with PO1 Sta. Maria, CR HC No. 04942 affirming the Decision2 in Criminal Case Nos. C-77992 and C-77993
then forwarded the said plastic sachet marked with "ATO" ·and the letter request for rendered by the Regional Trial Court (RTC), Branch 120 of Caloocan City. The RTC
laboratory examination to the WPD Crime Laboratory. Forensic Chemist P/Insp. Decision found accused-appellant Brian Mercado y Sarmiento (accused-appellant) guilty
Macapagal personally received the same from PO1 Garcia and after conducting beyond reasonable doubt for violation of Sections 5 and 11, Article II of Republic Act No.
qualitative examination on the contents thereof, found the same to be positive for 9165 (R.A. No. 9165), otherwise known as the "Comprehensive Dangerous Drugs Act of
methamphetamine hydrochloride or shabu. When the prosecution presented as evidence 2002."
in court the plastic sachet marked with "ATO," PO 1 Sta. Maria in no uncertain terms
positively identified it as the one he confiscated from petitioner. It is therefore beyond
 The Facts
The accused-appellant was charged of violation of Sections 5 and 11, Article II of R.A.
No. 9165, in two (2) Informations, both dated 31 July 2007, which respectively read as
follows:
Crim. Case No. 77992 (For violation of Section 5, R.A. No. 9165)
That on or about the 27th day of July, 2007 in Caloocan City, Metro Manila and within the
jurisdiction of this Honorable Court, the above-named accused, without authority of law,
did then and there willfully, unlawfully and feloniously sell and deliver to PO3 RAMON
GALVEZ, who posed, as buyer, a plastic sachet containing METHYLAMPHETAMINE
HYDROCHLORIDE (Shabu) weighing 0.02 gram, a dangerous drug, without
corresponding license or prescription therefore, knowing the same to be such.3
Crim. Case No. 77993 (For violation of Section 11, R.A. No. 9165)
That on or about the 27th day of July, 2007 in Caloocan City, Metro Manila and within the
jurisdiction of this Honorable Court, the above-named accused, without being authorized
by law, did then and there willfully, unlawfully and feloniously have in his possession,
custody and control Two (2) sachets containing METHYLAMPHETAMINE
HYDROCHLORIDE (Shabu) weighing 0.02 gram & 0.02 gram, respectively, when
subjected for laboratory examination gave positive result to the tests of
Methylamphetamine Hydrochloride, a dangerous drug. 4
Upon arraignment, the accused-appellant pleaded not guilty to said charges.5 Trial
thereafter proceeded.
Based on the evidence presented and on the stipulations and admitted facts entered into
by the parties, the summary of factual findings is stated as follows:
The Version of the Prosecution
[A]t around 10:00 a.m. on July 27, 2007, acting on a tip from a confidential informant that
accused-appellant was selling shabu, the Station Anti-Illegal Drugs Special Operation
Unit (SAID-SOU) of the Philippine National Police (PNP) organized a buy-bust operation
[with] SPO2 Wilfredo Quillan as team leader, PO3 [Ramon] Galvez as poseur- buyer,
and SPO1 [Fernando] Moran, PO2 Eugene Amaro, PO2 Celso Santos and PO3 Jose
Martirez as members. After SPO2 Quillan briefed the buy-bust team, a pre-operation
report was prepared. PO3 Galvez was provided with two (2) one hundred-peso bills
which he marked on the right portion with his initials "RG". Then, the team and the
informant boarded a passenger jeepney and proceeded to Phase 3-D, Camarin,
Caloocan City. When the informant pointed to accused-appellant, PO3 Galvez
approached him and said, "[p]’re, pa-iskor naman", offering to buy P200.00 worth of
shabu. He then handed the buy-bust money and accused-appellant brought out from his
pocket three (3) pieces of plastic sachets, chose one (1) sachet and gave it to PO3
Galvez. As the sale was already consummated, PO3 Galvez introduced himself as a
police officer, arrested accused-appellant, and gave the pre-arranged signal to his
companions by scratching his nape. When SPO1 Moran rushed in, PO3 Galvez marked
the plastic sachet with "BMS/RG" and told SPO1 Moran about the remaining two (2)
plastic sachets in accused-appellant’s pocket. SPO1 Moran then frisked him and
confiscated the items which he marked as "BMS/FM-1" and "BMS/FM-2". Thereafter,
they brought accused- appellant and the confiscated items to the SAID-SOU office in
Samson Road, Caloocan City, and turned them over to the investigator, PO2 [Randulfo]
Hipolito, who prepared the corresponding evidence acknowledgment receipt and request
for laboratory examination.
Qualitative examination conducted on the confiscated three (3) heat-sealed transparent
plastic sachets containing white crystalline substance, each weighing 0.02 gram, yielded
positive for methylampethamine hydrochloride or shabu, a dangerous drug. 6
The Version of the Defense
On July 26, 2007, at around 9:30 to 10:00 in the evening, accused- appellant returned
the jeepney he was driving to the garage of Phase 3-B, Camarin, Caloocan City. He was
walking home when a jeepney with police officers on board suddenly stopped in front of
him. PO3 Galvez asked accused-appellant where he came from. He answered that he
just came from driving his jeepney showing the police officers his driver’s license.
Accused-appellant was then forced to ride in the jeepney where he saw eight (8) persons
in handcuffs. He was brought to the police station and was told to produce ten thousand
pesos (P10,000.00) in exchange for his liberty, otherwise, a case would be filed against
him. Unable to produce the money, accused-appellant faced the present charges.7
The Ruling of the RTC
After trial on the merits, the RTC rendered a Decision8 finding the accused-appellant
guilty beyond reasonable doubt of violation of Sections 5 and 11, Article II of R.A. No.
9165. The dispositive portion of which is hereunder quoted, to wit:
Premises considered, this court finds and so holds that:
(1) The accused Brian Mercado y Sarmiento GUILTY beyond reasonable doubt
for violation of Sections 5 and 11, Article II of Republic Act No. 9165, otherwise
known as the Comprehensive Dangerous Drugs Act of 2002 and imposes upon
him the following:
 (a)In Crim. Case No. C-77992, the penalty of Life Imprisonment and a
fine of Five Hundred Thousand Pesos (P500,000.00); and
(b)In Crim. Case No. C-77993, the penalty of Imprisonment of twelve (12)
years and one (1) day to Fourteen (14) years and a fine of Three
Hundred Thousand Pesos (P300,000.00). 1âwphi1
The drugs subject matter of these cases are hereby confiscated and forfeited in favor of
the government to be dealt with in accordance with law. 9
The trial court concluded that the evidence presented by the prosecution sufficiently
satisfied the quantum required for accused- appellant’s conviction. It declared that the
fact of sale was sufficiently established upon showing the complete detailed manner of
negotiation of said sale, exchange of consideration, and handing of the subject of the
sale. The court a quo ruled that, as long as the police officer went through the operation
as a buyer and his offer was accepted by the accused-appellant, and the dangerous
drugs delivered to the former, the crime is considered consummated by the delivery of
goods.10 Likewise, the testimonies of the police officers who participated in the buy-bust
operation appear credible and reliable since absence of any showing of ill-motive on their
part to concoct trumped charges, they enjoy the presumption of regularity in the
performance of their duties.11 On the other hand, the denial of the accused- appellant and
his mere allegation of extortion were found to be unsubstantiated by any convincing and
credible evidence. Hence, being considered as negative, weak, and self-serving
evidence, accused-appellant’s bare denial cannot prevail over the positive testimony of
the prosecution’s witnesses and the physical evidence which supported said judgment of
conviction.12
The Ruling of the CA
On intermediate appellate review, the CA affirmed the RTC’s Decision in convicting the
accused-appellant. It ruled that failure to comply with Section 21 of R.A. No. 9165 will not
render the arrest of the accused illegal, nor will it result to the inadmissibility in evidence
against the accused of the illegal drugs seized in the course of the entrapment operation.
What is of utmost relevance is the preservation of the integrity and maintenance of the
evidentiary value of the confiscated illegal drugs, for in the end, the same shall
necessarily be the thrust that shall determine the guilt or innocence of the accused. The
prosecution therefore must simply show that the seized item recovered from appellant
was the same item presented in court and found to be an illegal/prohibited drug. These
were all established and proven beyond reasonable doubt in the instant
case.13 Accordingly, the prosecution was able to sufficiently bear out the statutory
elements of the crime of illegal sale and illegal possession of such drugs committed by
accused-appellant. The disposal on appeal reads:
It is well-settled that objection to the admissibility of evidence cannot be raised for the
first time on appeal; when a party desire the court to reject the evidence offered, he must
so state in the form of objection. Thus, as the trial was already concluded, [w]e can no
longer turn back to find out the justifiable grounds for the omission of the legal requisites.
In any case, the procedural lapse did not render accused- appellant’s arrest illegal or the
evidence adduced inadmissible. If there is non-compliance with Section 21, the issue is
not of admissibility, but of weight – evidentiary merit or probative value – to be given the
evidence. After a scrutiny of the records, [w]e find the evidence adduced more than
sufficient to prove the charges against accused-appellant. Therefore, considering that no
circumstance exists to put the trial court’s findings in error, [w]e apply the time-honored
precept that findings of the trial courts which are factual in nature and which involve
credibility are accorded respect when no glaring errors, gross misapprehension of facts
and speculative, arbitrary and unsupported conclusions can be gathered from such
findings.
FOR THESE REASONS, [w]e DENY the appeal and AFFIRM the assailed February 23,
2011 Decision of the Caloocan City Regional Trial Court, Branch 120. 14
Moreover, the appellate court emphasized that, during trial, accused- appellant neither
suggested that there were lapses in the safekeeping of the suspected drugs that could
affect their integrity and evidentiary value nor objected to their admissibility. Accused-
appellant was then precluded from raising such issue which must be timely raised during
trial.15
Upon elevation of this case before this Court, the Office of the Solicitor General
manifested that it will no longer file its supplemental brief and, instead, will adopt all the
arguments in its brief filed before the CA. 16 On the other hand, accused-appellant raised
the issue that the court a quo gravely erred in convicting him notwithstanding the police
operatives’ patent non-compliance with the strict and mandatory requirements of R.A.
No. 9165.
The Issue
Whether or not the RTC and the CA erred in finding that the evidence of the prosecution
was sufficient to convict the accused of the alleged sale and possession of
methamphetamine hydrochloride or shabu, in violation of Sections 5 and 11,
respectively, of R.A. No. 9165.
Our Ruling
We sustain the judgment of conviction.
The Court finds no valid reason to depart from the time-honored doctrine that where the
issue is one of credibility of witnesses, and in this case their testimonies as well, the
findings of the trial court are not to be disturbed unless the consideration of certain facts
of substance and value, which have been plainly overlooked, might affect the result of
the case.17
Upon perusal of the records of the case, we see no reason to reverse or modify the
findings of the RTC on the credibility of the testimony of prosecution’s witnesses, more
so in the present case, in which its findings were affirmed by the CA. It is worthy to
mention that, in addition to the legal presumption of regularity in the performance of their
official duty, the court a quo was in the best position to weigh the evidence presented
during trial and ascertain the credibility of the police officers who testified as to the
conduct of the buy-bust operation and in preserving the integrity of the seized illegal
drug.
This Court has consistently ruled that for the successful prosecution of offenses involving
the illegal sale of drugs under Section 5, Article II of R.A. No. 9165, the following
elements must be proven: (1) the identity of the buyer and seller, the object and
consideration; and (2) the delivery of the thing sold and the payment therefor. 18 In other
words, there is a need to establish beyond reasonable doubt that the accused actually
sold and delivered a prohibited drug to another, and that the former indeed knew that
what he had sold and delivered to the latter was a prohibited drug. 19 To reiterate, what is
material to the prosecution for illegal sale of dangerous drugs is the proof that the
transaction or sale actually took place, plus the presentation in court of corpus delicti as
evidence.20 On the other hand, we have adhered to the time-honored principle that for
illegal possession of regulated or prohibited drugs under Section 11 of the same law, the
prosecution must establish the following elements: (1) the accused is in possession of an
item or object, which is identified to be a prohibited or regulated drug; (2) such
possession is not authorized by law; and (3) the accused freely and consciously
possessed the drug.21
Undoubtedly, the prosecution had indeed established that there was a buy-bust
operation22 showing that accused-appellant sold and delivered the shabu for value to
PO3 Ramon Galvez (PO3 Galvez), the poseur-buyer. PO3 Galvez himself testified that
there was an actual exchange of the marked-money and the prohibited drug. Likewise,
accused-appellant was fully aware that what he was selling was illegal and prohibited
considering that when PO3 Galvez told him, "pre, pa-iskor naman," the former
immediately answered, "magkano?," then when the poseur-buyer replied, "dos lang," it
resulted to the production of three (3) pieces of plastic sachets from accused-appellant’s
pocket. Thereafter, the corpus delicti or the subject drug was seized, marked, and
subsequently identified as a prohibited drug. Note that there was nothing in the records
showing that he had authority to possess them. Jurisprudence had pronounced
repeatedly that mere possession of a prohibited drug constitutes prima facie evidence of
knowledge or animus possidendi sufficient to convict an accused in the absence of any
satisfactory explanation.23 Above all, accused-appellant likewise failed to present contrary
evidence to rebut his possession of the shabu. Taken collectively, the illegal sale and
illegal possession of dangerous drugs by accused-appellant were indeed established
beyond reasonable doubt.
By way of emphasis, in cases involving violations of Dangerous Drugs Act, credence
should be given to the narration of the incident by the prosecution witnesses especially
when they are police officers who are presumed to have performed their duties in a
regular manner, unless there is evidence to the contrary. 24 In this regard, the defense
failed to show any ill motive or odious intent on the part of the police operatives to impute
such a serious crime that would put in jeopardy the life and liberty of an innocent person,
such as in the case of accused-appellant. As a matter of fact, aside from accused-
appellant’s mere denial and alleged extortion against him, no evidence was ever
presented to prove the truthfulness of the same. Incidentally, if these were simply
trumped-up charges against him, it remains a question why no administrative charges
were brought against the police officers. Moreover, in weighing the testimonies of the
prosecution’s witnesses vis-à-vis that of the defense, it is a well-settled rule that in the
absence of palpable error or grave abuse of discretion on the part of the trial judge, the
trial court’s evaluation of the credibility of witnesses will not be disturbed on appeal. 25
To reiterate, in the absence of any showing that substantial or relevant facts bearing on
the elements of the crime have been misapplied or overlooked, this Court can only
accord full credence to such factual assessment of the trial court which had the distinct
advantage of observing the demeanor and conduct of the witnesses during the trial.
Absent any proof of motive to falsely charge an accused of such a grave offense, the
presumption of regularity in the performance of official duty and the findings of the trial
court with respect to the credibility of witnesses shall prevail over his/her bare
allegation.26
Furthermore, this Court has time and again adopted the chain of custody rule, 27 a method
of authenticating evidence which requires that the admission of an exhibit be preceded
by evidence sufficient to support a finding that the matter in question is what the
proponent claims it to be. This would include testimony about every link in the chain,
from the moment the item was picked up to the time it is offered in evidence, in such a
way that every person who touched the exhibit would describe how and from whom it
was received, where it was and what happened to it while in the witness’ possession, the
condition in which it was received and the condition in which it was delivered to the next
link in the chain. These witnesses would then describe the precautions taken to ensure
that there had been no change in the condition of the item and no opportunity for
someone not in the chain to have possession of the same.28
It is essential for the prosecution to prove that the prohibited drug confiscated or
recovered from the suspect is the very same substance offered in court as exhibit. Its
identity must be established with unwavering exactitude for it to lead to a finding of guilt. 29
Alongside these rulings are our pronouncements, just as consistent, that failure to strictly
comply with the prescribed procedures in the inventory of seized drugs does not render
an arrest of the accused illegal or the items seized/confiscated from him inadmissible.
What is essential is "the preservation of the integrity and the evidentiary value of the
seized items, as the same would be utilized in the determination of the guilt or innocence
of the accused."30 Thus:
From the point of view of jurisprudence, we are not beating any new path by holding that
the failure to undertake the required photography and immediate marking of seized items
may be excused by the unique circumstances of a case. In People v. Resurreccion, we
already stated that "marking upon immediate confiscation" does not exclude the
possibility that marking can be at the police station or office of the apprehending team. In
the cases of People v. Rusiana, People v. Hernandez, and People v. Gum-Oyen, the
apprehending team marked the confiscated items at the police station and not at the
place of seizure. Nevertheless, we sustained the conviction because the evidence
showed that the integrity and evidentiary value of the items seized had been preserved.
To reiterate what we have held in past cases, we are not always looking for the strict
step-by-step adherence to the procedural requirements; what is important is to ensure
the preservation of the integrity and the evidentiary value of the seized items, as these
would determine the guilt or innocence of the accused. We succinctly explained this in
People v. Del Monte when we held:
We would like to add that non-compliance with Section 21 of said law, particularly the
making of the inventory and the photographing of the drugs confiscated and/or seized,
will not render the drugs inadmissible in evidence. Under Section 3 of Rule 128 of the
Rules of Court, evidence is admissible when it is relevant to the issue and is not
excluded by the law or these rules. For evidence to be inadmissible, there should be a
law or rule which forbids its reception. If there is no such law or rule, the evidence must
be admitted subject only to the evidentiary weight that will [be] accorded it by the courts.
xxx
We do not find any provision or statement in said law or in any rule that will bring about
the non- admissibility of the confiscated and/or seized drugs due to non-compliance with
Section 21 of Republic Act No. 9165. The issue therefore, if there is non-compliance with
said section, is not of admissibility, but of weight
— evidentiary merit or probative value — to be given the evidence. The weight to be
given by the courts on said evidence depends on the circumstances obtaining in each
case.31 (Emphases supplied and citations omitted)
From the testimonies of the police officers in the case at bench, the prosecution
established that they had custody of the drug seized from the accused from the moment
he was arrested, during the time he was transported to the police station, and up to the
time the drug was submitted to the crime laboratory for examination. The same
witnesses also identified the seized drug with certainty when this was presented in court.
With regard to the handling of the seized drugs, there are no conflicting testimonies or
glaring inconsistencies that would cast doubt on the integrity thereof as evidence
presented and scrutinized in court. It is therefore safe to conclude that, to the
unprejudiced mind, the testimonies show without a doubt that the evidence seized from
the accused-appellant at the time of the buy-bust operation was the same one tested,
introduced, and testified to in court. This fact was further bolstered by the stipulations
entered into between the parties as to the testimony of Forensic Chemical Officer of the
Northern Police District Crime Laboratory Office, Caloocan City, Police Chief Inspector
Albert S. Arturo.32 In other words, there is no question as to the integrity of the evidence
against accused-appellant.
Accordingly, we hereby affirm the position taken by the CA when it expounded on the
matter:
It is well-settled that objection to the admissibility of evidence cannot be raised for the
first time on appeal; when a party desires the court to reject the evidence offered, he
must so state in the form of objection. Thus, as the trial was already concluded, [w]e can
no longer turn back to find out the justifiable grounds for the omission of the legal
requisites.
In any case, the procedural lapse did not render accused- appellant’s arrest illegal or the
evidence adduced inadmissible. If there is non-compliance with Section 21, the issue is
not of admissibility, but of weight – evidentiary merit or probative value – to be given the
evidence. After scrutiny of the records, [w]e find the evidence adduced more than
sufficient to prove the charges against accused-appellant. Therefore, considering that no
circumstance exists to put the trial court’s findings in error, [w]e apply the time-honored
precept that findings of the trial courts which are factual in nature and which involve
credibility are accorded respect when no glaring errors, gross misapprehensions of facts
and speculative, arbitrary and unsupported conclusions can be gathered from such
findings.33
Again, although this Court finds that the police officers did not strictly comply with the
requirements of Section 21, Article II of R.A. No. 9165, such noncompliance did not
affect the evidentiary weight of the drug seized from the accused-appellant, because the
chain of custody of the evidence was shown to be unbroken under the circumstances of
the case. As correctly found by the appellate court:
The following links must be established in the chain of custody in a buy-bust operation:
first, the seizure and marking, if practicable, of the illegal drug recovered from the
accused by the apprehending officer; second, the turnover of the illegal drug seized by
the apprehending officer to the investigating officer; third, the turnover by the
investigating officer of the illegal drug to the forensic chemist for laboratory examination;
and fourth, the turnover and submission of the marked illegal drug seized from the
forensic chemist to the court. A circumspect study of the evidence movements reveal the
integrity and the evidentiary value of the suspected drugs were safeguarded. PO3
Galvez and SPO1 Moran testified that they marked the suspected drugs with "BMS/RG",
"BMS/FM-1" and "BMS/FM-2" in the presence of accused-appellant immediately upon
confiscation. Then, they brought accused-appellant and the confiscated items to their
office, entrusting custody to investigator PO2 Hipolito. Contrary to accused-appellant’s
claim, there is no hiatus in the third and fourth link in the chain of custody. The defense
admitted that, upon receipt of the items, PO2 Hipolito prepared the corresponding
evidence acknowledgment receipt and request for laboratory examination. The request
for laboratory examination, which the prosecution offered as part of its documentary
evidence, bears a stamp stating PO2 Hipolito was the one who delivered the marked
confiscated items to PNP Crime Laboratory, with forensic chemist PSI Arturo as the
receiving officer. PSI Arturo then conducted the examination which yielded positive for
methylamphetamine hydrochloride or shabu. When the prosecution presented the
marked plastic sachets in court, PO3 Galvez and SPO1 Moran positively identified them
as those recovered from accused- appellant in the buy-bust operation. Considering that
every link was adequately established by the prosecution, the chain of custody was
unbroken.34
In fine, considering the pieces of evidence presented by the prosecution, the denial and
allegation of extortion of the accused-appellant fails. Courts generally view the defense
of denial with disfavor due to the facility with which an accused can concoct it to suit his
or her defense. As evidence that is both negative and self-serving, this defense cannot
attain more credibility than the testimonies of the prosecution witnesses who testify
clearly, providing thereby positive evidence on the various aspects of the crime
committed.35 Consequently, we find no cogent reason to disturb the decisions of the RTC
and the CA. Accused-appellant Bryan Mercado y Sarmiento is guilty beyond reasonable
doubt of violation of Sections 5 and 11, Article II of R.A. No. 9165.
WHEREFORE, the appeal is DENIED. The CA Decision in CA- G.R. CR HC No. 04942
dated 26 September 2012, is AFFIRMED in all respects.
SO ORDERED.
G.R. No. 189296
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
RECTO ANGNGAO y MAKAY and ROBERT CARLIN y PECDASEN, Accused,
RECTO ANGNGAO y MAKAY, Accused-Appellant.
DECISION
BERSAMIN, J.:
The State bears the burden of establishing the chain of custody of the dangerous drugs
confiscated during a buy-bust operation. The evidence of the chain of custody must meet
the test of proof beyond reasonable doubt.
The Case
In its decision promulgated on November 28, 2008, 1 the Court of Appeals (CA) affirmed
the conviction of Recto Angngao y Makay aka Amboy under the judgment rendered on
December 14, 2006 by the Regional Trial Court, Branch 61 (RTC), in Baguio City for the
illegal sale of 250 grams of marijuana resin or hashish (Criminal Case Nos. 22317-R),
and for the illegal possession of 500 milliliters of hashish oil (Criminal Case Nos. 22318-
R), and sentencing him in each case to life imprisonment and to pay a fine of
P500,000.00.2
Hence, this appeal.
Antecedents
According to the CA, the established antecedent facts are as follows:
On 23 November 2003, SPO4 Marquez Madlon, member of the Philippine Drug
Enforcement Agency in the Cordillera Autonomous Region (PDEA-CAR), received a call
on his cellular phone from a caller who identified himself as Amboy. Amboy, who turned
out to be appellant Recto Angngao y Makay, was asking for the whereabouts of a certain
Jun Buguias, from whom he allegedly got SPO4 Madlon’s number. Recalling that
Buguias was one of those arrested by the PDEA-CAR for selling marijuana hashish,
SPO4 Madlon took interest in the caller and made up a story by telling him that he was
also waiting for Buguias to deliver to him his order of marijuana hashish. Believing SPO4
Madlon’s story, appellant disclosed that he had marijuana resin which was supposed to
be delivered to Buguias. Appellant likewise proposed that SPO4 Madlon should deal with
him directly since Buguias is (sic) nowhere to be found. Appellant offered SPO4 Madlon
to sell two hundred fifty (250) grams of marijuana resin for Fifty Thousand Pesos
(P50,000.00) and one (1) liter of marijuana hashish oil for One Hundred Fifty Thousand
Pesos (P150,000.00). He agreed to deliver them to SPO4 Madlon on the same day,
between 7:30 and 8:30 in the evening at the Petron Gasoline Station in Baguio General
Hospital along Marcos Highway.
Forthwith, SPO4 Madlon reported his conversation with appellant to his superior, Police
Supt. Danilo Flordeliza, Regional Director of PDEA-CAR.
Acting on SPO4 Madlon’s report, P/Supt Flordeliza conducted a briefing for a buy-bust
operation. A buy-bust team was thereafter formed with Police Senior Inspector Edgar
Apalla as the team leader, SPO4 Arthur Lucas as the back-up guard, SPO2 Cabili
Agbayani as the seizing officer, Police Officer Akia as the arresting officer and SPO4
Madlon as the poseur buyer. The group brought with them the buy-bust money
consisting of ten (10) Five Hundred (P500.00) peso bills, amounting to Five thousand
Pesos (P5,000.00), mixed with one (1) bundle of boodle money.
Around 7:15 in the evening, SPO4 Madlon proceeded to the target area on board a
rented Tamaraw FX Taxi, while the rest of the police operatives used another vehicle.
Upon arriving at the Petron Gasoline Station, SPO4 Madlon called up appellant and
informed him that he was already at the area waiting for him.
After waiting for a while, SPO4 Madlon noticed a tamaraw FX Taxi at the vicinity of the
gasoline station. A man with a backpack alighted from the vehicle. He was with another
man and he seemed to be looking for somebody. To make sure that it was appellant,
SPO4 Madlon dialed appellant’s cellphone number. The man, who turned out to be
appellant, answered the call. SPO4 Madlon therefore instructed him to meet him at the
Pancake House located within the vicinity of the Petron gasoline Station.
SPO4 Madlon sat and waited outside the Pancake House. Thereafter, appellant arrived
and introduced his companion, who was later identified as appellant’s co-accused Robert
Carlin y Pecdasen. Carlin sat beside SPO4 Madlon while appellant took a seat opposite
SPO4 Madlon. SPO4 Madlon then inquired about their transaction and asked appellant if
he could get a discount on the price of the marijuana resin. Appellant refused. SPO4
Madlon then told appellant that he wanted to inspect the marijuana resin and check if it
was of good quality. Appellant was at first hesitant but later on prevailed upon to bring
out a brick of marijuana resin from his backpack. He showed it to SPO4 Madlon, who
after confirming that it was indeed marijuana resin, took out the buy-bust money and
gave it to Carlin. Carlin, who, all the while was merely observing the transaction, handed
over the money to appellant. Thereafter, SPO4 Madlon stood up, as a pre-arranged
signal to the police operatives that the transaction had been completed.
The back-up police officers, who were strategically positioned from a seeing distance,
rushed to the aid of SPO4 Madlon and arrested appellant and Carlin. Upon frisking
appellant, the police operatives recovered from him the buy-bust money and a bottle of
dark-green viscous liquid suspected to be marjuana hashish oil. The confiscated items
were marked with the initials "MKM" representing the initials of SPO4 Marquez Kilit
Madlon, "CJA" for SPO2 Cabili Julian Agbayani, "AAL" for SPO4 Arthur Apil Lucas and
"DEA" for Police Officer Daniel Esteban Akia. 3
The confiscated substances, when brought to the Benguet Provincial Crime Laboratory
Office in Baguio City for processing and identification, tested positive for marijuana, a
dangerous drug. The brick of marijuana resin weighed 251.02 grams, while the bottle
containing the dark green glutinous substance contained 450 milliliters of marijuana
hashish oil.4
The Office of the City Prosecutor of Baguio City filed in the RTC two informations against
Angngao and Robert Carlin y Pecdasen, charging them with the illegal sale of marijuana
resin and illegal possession of marijuana hashish oil in violation of Republic Act No. 9165
(Comprehensive Dangerous Drugs Act of 2002).
During the trial, Angngao denied the accusations, clarifying that he had been working as
a construction worker in Quirino Hill, Baguio City at the time, and that on the day of the
arrest, was visiting his cousin who had been confined at the Baguio City General
Hospital; and that he was then suddenly accosted and arrested by police officers in the
Pancake House near the hospital where he was having a snack.5
For his part, Carlin, also denying the charges, insisted that he did not know Angngao;
that he was only accompanying a town mate who visited a friend confined at the Baguio
City General Hospital; that after coming from the hospital, he and his friend had gone to
the Pancake House to eat when a commotion occurred inside the restaurant caused by
police officers arresting a customer, who turned out to be Angngao; and that the
policemen then turned to him and arrested him allegedly for being the cohort of
Angngao.6
Judgment of the RTC
On December 14, 2006,7 the RTC convicted Angngao but acquitted Carlin, viz.:
WHEREFORE, judgment is rendered in Criminal Case No. 22317-R finding the accused
Recto Angngao y Makay GUILTY beyond reasonable doubt and he is hereby sentenced
to suffer Life Imprisonment and to pay a fine of P500,000.00 and the costs, and Criminal
Case No. 22318-R finding the accused Recto Angngao y Makay likewise GUILTY
beyond reasonable doubt and he is hereby sentenced to suffer Life Imprisonment and to
pay a fine of P500,000.00 and the costs.
The accused Roberty (sic) Carlin is ACQUITTED on grounds of reasonable doubt and is
ORDERED RELEASED from custody unless otherwise being held lawfully for some
other offense requiring continued detention.
SO ORDERED.8
Decision of the CA
On November 28, 2008,9 the CA promulgated its assailed judgment affirming the
conviction of Angngao handed down by the RTC, to wit:
WHEREFORE, the Decision of the Regional Trial Court of Baguio City, Branch 61, dated
14 December 2006, in Criminal Cases Nos. 22317-R and 22318-R, is AFFIRMED.
SO ORDERED.
Issues
In this appeal, Angngao claims that the CA: 10
I dangerous drugs that constitute the corpus delicti would render the conviction
x x x GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND
REASONABLE DOUBT OF THE CRIMES CHARGED.
II
x x x GRAVELY ERRED IN CONVICTING THE ACCUSED- APPELLANT DESPITE THE
PROSECUTIONS’S FAILURE TO ESTABLISH THE CHAIN OF CUSTODY OF THE
ALLEGED CONFISCATED DRUGS.
In the appellee’s brief filed in the CA, which the Office of the Solicitor General (OSG)
adopted in this appeal, the State seeks the affirmance of the decision of the CA by
insisting that the police officers who comprised the entrapment team were entitled to the
presumption of the regularity of the performance of their official duty.
Ruling of the Court
The appeal is meritorious.
To ensure a conviction for the illegal sale of dangerous drugs, the following elements
constituting the crime must be present, namely: (a) the identities of the buyer and seller,
the object of the sale, and the consideration; and (b) the delivery of the thing sold and the
payment for the thing. Such prosecution for the sale of illegal drugs requires more than
the hasty presentation of evidence to prove each element of the crime. The presentation
of the drugs as evidence in court is indispensable in every prosecution for the illegal sale
of dangerous drugs because the drugs are the corpus delicti of the crime. 11 As such, the
State should establish beyond doubt the identity of the dangerous drugs by showing that
the dangerous drugs offered in court as evidence were the same substances bought
during the buy-bust operation.12 This requirement is complied with by ensuring that the
custody of the seized drugs from the time of confiscation until presentation in court is
safeguarded under what is referred to as the chain of custody by Republic Act No. 9165,
whose objective is to remove unnecessary doubts concerning the identity of the
evidence.13
Should the State not definitively establish that the dangerous drugs presented in court
were the very same substances actually recovered from the accused, the criminal
prosecution for drug pushing should fail because the guilt of the accused was not
established beyond reasonable doubt.14 According to People v. Catalan,15 the Prosecution
does not comply with the indispensable requirement of proving the violation of Section 5
of Republic Act No. 9165 if the dangerous drugs are missing, or if there are substantial
gaps in the chain of custody of the seized dangerous drugs that raise doubts about the
authenticity of the evidence presented in court. Indeed, the non- presentation of the
unfounded.
As the means for the establishment of the chain of custody, Section 21
(1)of R.A. No. 9165 provides thus:
(1)The apprehending team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph the
same in the presence of the accused or the person/s from whom such items were
confiscated and/or seized, or his/her representative or counsel, a representative from the
media and the Department of Justice (DOJ), and any elected public official who shall be
required to sign the copies of the inventory and be given a copy thereof.
Complementing Section 21 (1) of R.A. No. 9165 is the following guideline under the
Implementing Rules and Regulations (IRR) of R.A. No. 9165, to wit:
(a) The apprehending officer/team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph the
same in the presence of the accused or the person/s from whom such items were
confiscated and/or seized, or his/her representative or counsel, a representative from the
media and the Department of Justice (DOJ), and any elected public official who shall be
required to sign the copies of the inventory and be given a copy thereof: Provided, that
the physical inventory and photograph shall be conducted at the place where the search
warrant is served; or at the nearest police station or at the nearest office of the
apprehending officer/team, whichever is practicable, in case of warrantless seizures;
Provided, further, that non-compliance with these requirements under justifiable grounds,
as long as the integrity and the evidentiary value of the seized items are properly
preserved by the apprehending officer/team, shall not render void and invalid such
seizures of and custody over said items;
The manner and timing of the marking of the seized drugs or related items in accordance
with the foregoing statutory rules are crucial in proving the chain of custody. The marking
by the arresting officer of the drugs, being the starting point in the custodial link, should
be made immediately upon the seizure, or, if that is not possible, as close to the time and
place of the seizure as practicable under the obtaining circumstances. This immediate
marking is essential because the succeeding handlers of the drugs would use the
markings as their reference to the seizure, and because it further serves to segregate the
marked seized drugs from all other evidence from the time and point of seizure until the
drugs are disposed of at the end of the criminal proceedings. The deliberate taking of
these identifying steps is statutorily aimed at obviating switching, "planting" or
contamination of the evidence.16 Verily, the preservation of the chain of custody vis-à-vis
the drugs ensures the integrity of the evidence incriminating the accused, and fulfills the
element of relevancy as a requisite for the admissibility of the evidence.
The Court accepts that "while the chain of custody should ideally be perfect, in reality it is
not, ‘as it is almost always impossible to obtain an unbroken chain.’" 17 This limitation on
the chain of custody is well recognized in Section 21 of R.A. No. 9165’s IRR, which
states that non- compliance with the rules’ requirements under justifiable grounds shall
not render void and invalid such seizures of and custody over said items as long as the
integrity and evidentiary value of the seized items are properly preserved by the
apprehending officer/team. In resolving drug-related offenses, therefore, the courts
should deem to be essential "the preservation of the integrity and the evidentiary value of
the seized items, as the same would be utilized in the determination of the guilt or
innocence of the accused."18
The conviction would have been watertight. SPO4 Madlon, who acted as the poseur-
buyer in the buy-bust operation, succeeded in purchasing from the appellant the brick of
marijuana resin weighing 251.02 grams, more or less, for a total consideration of
P50,000.00. The payment was received by the appellant through Carlin. The ensuing
physical search conducted on the appellant further yielded the marijuana hash oil. The
elements constituting the crime of illegal sale of dangerous drugs were seemingly
established.
However, the conviction must have to be undone. The integrity of the evidence
presented – the corpus delicti no less – became suspicious by the mysterious silence of
the record on what transpired after the transaction. On its part, the RTC, after reliving the
buy-bust operation, uncharacteristically jumped to the conclusion that the accused was
guilty as charged by declaring that "the prosecution was able to establish these elements
[of illegal sale of dangerous drugs] beyond moral certainty," 19 and that the accused "was
validly searched by the police officers after his lawful arrest and same yielded
approximately one-half liter of the potent dangerous drug hash oil or resin." 20 In the same
breath, the RTC rejected the accused’s denial and alibi as inherently weak defenses. 21 In
turn, the CA devoted little, if any, discussion on the chain of custody vis-à-vis the seized
drugs.
Such treatment by the two lower courts of a matter as essential to the conviction as the
chain of custody is not surprising. An examination of the record indicates that no
1âwphi1
testimony on the links in the chain of custody from the time the drugs were confiscated
up to the time they were offered as evidence in court was given by the arresting lawmen
and the others who could have handled the drugs. This omission deprived the lower
courts of the means of knowing the details as to every person who touched the drugs, as
to how and from whom the drugs were received, as to where the drugs were at any given
point in that interval, and as to what happened to the drugs while in the possession of
each handler, including the relative condition in which the drugs were received and the
state in which they were delivered to the next links in the chain. It is quite notable that the
officers who served as the only witnesses to the buy-bust operation neither described the
precautions taken to ensure that there had been no change in the condition of the drugs
nor specified that there was no opportunity for any person not in the chain to have
possession of the drugs.
To be more specific, the assailed decisions of both the RTC and the CA do not show that
the arresting lawmen had marked the seized drugs immediately upon confiscation at the
site of the arrest, or even later on in the police station. In fact, the RTC did not advert to
any markings at all. Although the CA noted that the drugs were marked with the initials of
the apprehending police officers, the circumstances attendant to such markings, like
when and where the markings were done, were not sufficiently revealed. In particular,
SPO4 Madlon, SPO4 Lucas and SPO2 Agbayani did not indicate whether the seized
items had been marked right away following the confiscation, or later on in the police
station, as the following excerpts of their testimonies show:
PROSECUTOR [CATRAL]
Q:As far as Amboy is concerned, what items were retrieved
from him? [SPO4 MADLON]
A:The marijuana hashish together with 1 liter marijuana hash oil, sir.
 xxxx A:Arthur E. Lucas, Sir.

Q:So after you have already effected the arrest and the search was made in the persons Q:How about DEA?
of the accused, what happen (sic) next?
A:Daniel E. Akia, Sir.
A:We prepared for physical examination request, for chemical analysis of the confiscated
dangerous drugs from the suspect, request for drug test, the inventory of the evidences Q:How about this entry?
(sic) confiscated on the suspect and our Affidavit of Arrest, sir.22
A:That is during the arrest of the suspect, Sir. 24
xxxx
xxxx
Q:Actually who among you conducted the search in the person of the 2 accused?
Other than the response of SPO2 Agbayani to the question pertaining to the date
[SPO4 LUCAS] appearing on the markings, nothing shows how such markings were obtained and the
circumstances surrounding that important link in the chain. The members of the buy-bust
A:SPO2 Agbayani, sir. x x x team did not even mention in the Joint Affidavit of Arrest or in the Affidavit of Poseur-
Buyer that they had marked the drugs.
Q:And after that what happen (sic) next?
The Prosecution cannot avoid confronting the issue of the broken chain of custody by
A:We proceeded in our office, sir. embellishing its case with the presumption of regularity. This presumption, which is not
conclusive, vanishes upon the slightest hint or taint of irregularity. 25 It stands only when
Q:And at your office what happen (sic)? nothing suggests that the law enforcers involved deviated from the standard conduct of
official duty as provided for in the law. But where, like here, the official act in question is
irregular on its face, the presumption does not arise as a matter of course. 26 As such, the
A:For documentation that’s the time we were able to identify the suspect as Recto
non-conformity with the requirements for preserving the chain of custody on the part of
Angngao and Robert Carlin, sir.23
the arresting lawmen closed the door to the application of the presumption of regularity.
xxxx
There were other indicia of non-conformity with the requirements. It is beyond dispute,
for one, that no photograph was taken of the recovered items for documentation
Q: There are markings here, CJA, what does that represent? [SPO2 AGBAYANI] purposes. It was also not shown why, despite the requirement of the law itself, no
representative from the media, from the Department of Justice, or any elective official
A:My initials, Sir. was present to serve as a witness during the arrest. The Prosecution’s testimonial
evidence is actually bereft of the showing of the efforts undertaken by the law enforcers
Q:Who placed that? to see to the presence of any of such representatives during the operation against the
appellant from his apprehension until the seizure of the drugs.
A:I was the one, Sir.
It is true that Section 21 of the IRR of R.A. No. 9165 only requires a substantial
Q:How about this MKM? compliance with the requirements of markings and photographing instead of an absolute
or literal compliance. Hence, an accused can still be held guilty provided that a justifiable
A:Marquez K. Madlon, Sir. ground for excusing the non-compliance with the requirements has been satisfactorily
established by the Prosecution.27
Q:How about AEL?
Such justifiable ground is wanting here. SPO4 Madlon and the rest of the buy-bust team
tendered no explanation for the non-compliance. They were required to render sufficient
reasons for their non-compliance during the trial; otherwise, the persons they charged
would be acquitted on the ground of reasonable doubt. 28 Yet, they even seemed unaware
that such requirements existed at all. We are aghast at their dismissive treatment of the
requirements.
There is no question that the State had the responsibility to explain the lapses in the
procedures taken to preserve the chain of custody of the dangerous drugs. Without the
explanation by the State, the evidence of the corpus delicti became unreliable, and the
acquittal of the accused should follow on the ground that his guilt had not been shown
beyond reasonable doubt.29 Absent the justification by the arresting lawmen for their non-
compliance with the requirement of an intact chain of custody, the trial court and the CA
did not fairly convict the appellant in whose favor the safeguards have been erected by
the law. As the Court well stated in People v. Relato: 30
Statutory rules on preserving the chain of custody of confiscated prohibited drugs and
related items are designed to ensure the integrity and reliability of the evidence to be
presented against the accused. Their observance is the key to the successful
prosecution of illegal possession or illegal sale of prohibited drugs.
Consequently, we reverse the conviction of the appellant for possession of or for the sale
of illegal drugs under R.A. No. 9165 for failure to prove his guilt beyond reasonable
doubt.
WHEREFORE, the Court REVERSES and SETS ASIDE the November 28, 2008
decision of the Court of Appeals affirming the conviction of Recto Angngao y Makay by
the Regional Trial Court, Branch 61, in Baguio City for the illegal sale of 250 grams of
marijuana resin or hashish (Criminal Case Nos. 22317-R), and for the illegal possession
of 500 milliliters of hashish oil (Criminal Case Nos. 22318-R); and ACQUITS him of the
offenses charged based on reasonable doubt.
The Director of the Bureau of Prisons is ORDERED to IMMEDIATELY RELEASE Recto
Angngao y Makay from custody upon receipt hereof, unless he is being held for some
other lawful cause.
SO ORDERED.
G.R. No. 199042 November 17, 2014
DANILO VILLANUEVA y ALCARAZ, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
SERENO, CJ:
We resolve the Petition1 filed by Danilo Villanueva y Alcaraz from the Decision2 dated 4
May 2011 and Resolution3 dated 18 October 2011 issued by the Fourteenth Division of
the Court of Appeals (CA) in CA-G.R. C.R. No. 32582.
THE ANTECEDENT FACTS
Petitioner Danilo Villanueva was charged with violation of Section 11, Article II of
Republic Act (R.A.) No. 9165 or The Comprehensive Dangerous Drugs Act of 2002. The
Information4 reads:
That on or about the 15th day of June 2004 in Caloocan City, Metro Manila, and within
the jurisdiction of this Honorable Court, the above named accused, without being
authorized by law, did then and there, willfully, unlawfully and feloniously have in his
possession, custody and control METHAMPHETAMINE HYDROCHLORIDE (Shabu)
weighing 0.63 gram knowing the same to [be a] dangerous drug under the provisions of
the above-cited law.
CONTRARY TO LAW.
On 15 July 2004, the accused, duly assisted by counsel de oficio, pleaded not guilty to
the offense charged.5
PROSECUTION’S VERSION
Four witnesses testified for the prosecution: (1) Police Senior Inspector (PSI) Albert
Arturo, (2) Police Officer (PO) 3 Jonathan Coralde, (3) PO2 Reynante Mananghaya, and
(4) Senior Police Officer 1 (SPO1) Antonio Asiones. 6 Their testimonies reveal that a
Complaint was filed by Brian Resco against Danilo Villanueva for allegedly shooting the
former along C-3 Road, Navotas City. After recording the incident in the police blotter,
PO3 Jonathan Coralde, SPO3 Enrique de Jesus, SPO2 Henry Martin and SPO1
Anthony Asiones, together with Resco, proceeded to the house of Villanueva. They
informed Villanueva about the Complaint lodged against him. They invited him to the
police station. There, he was subjected to a body search and, in the process, a plastic
sachet of shabu was recovered from the left pocket of his pants. PO3 Coralde marked
the sachet with the initial "DAV 06-15-04", and PO2 Reynante Mananghaya brought it to
the National Police District Scene of the Crime Operatives (NPD-SOCO) for
examination.7 DEFENSE’S VERSION
The accused testified that at the time of the incident, he was at home watching TV when
PO3 Coralde, along with three others, invited him to go with them to the police station.
Informed that he had been identified as responsible for shooting Resco, the accused was
then frisked and detained at the police station. 8
RULING OF THE RTC
The Regional Trial Court (RTC) Branch 127 of Caloocan City, in its Decision9 dated 6
April 2009, convicted petitioner of the offense charged. The dispositive portion of the
Decision reads:
WHEREFORE, premises considered, judgment is hereby rendered declaring accused
DANILO VILLANUEVA y ALCARAZ, GUILTY BEYOND REASONABLE DOUBT of the
offense of Violation of Section 11, Article II,R.A. 9165. Henceforth, this Court hereby
sentences him to suffer an imprisonment of twelve (12) years and one (1) day as the
minimum to seventeen (17) years and eight (8) months as the maximum and to pay the
fine of Three Hundred Thousand Pesos (₱300,000.00).
The drugs subject matter of this case is ordered confiscated and forfeited in favor of the
government to be dealt with in accordance with the law.
SO ORDERED.10
The CA reviewed the appeal, which hinged on one issue, viz:
THE COURT A QUOGRAVELY ERRED IN NOT FINDING AS ILLEGAL THE
ACCUSED-APPELLANT’S WARRANTLESS ARREST AND SEARCH.11
RULING OF THE CA
On 4 May 2011, the CA affirmed the ruling of the lower court:
WHEREFORE, the appealed Decision dated April 6, 2009 of the Regional Trial Court,
Branch 127, Caloocan City in Criminal Case No. 70854 finding the accused-appellant
guilty beyond reasonable doubt is hereby AFFIRMED.
SO ORDERED.12
On 27 May 2011, petitioner filed a Motion for Reconsideration, 13 which the CA denied in a
Resolution14 dated 18 October 2011.
Hence, the instant Petition, which revolves around the following lone issue:
WHETHER THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE
PETITIONER’S CONVICTION FOR VIOLATION OF SECTION 11 OF REPUBLIC ACT
NO. 9165 DESPITE THE ILLEGALITY OF THE ARREST AND THE LAPSES ON THE
PART OF THE POLICE OFFICERS IN THE HANDLING OF THE CONFISCATED
DRUG.15
Petitioner claims that his arrest does not fall within the purview of valid warrantless
arrests, since it took place on the day of the alleged shooting incident. Hence, to "invite"
him to the precinct without any warrant of arrest was illegal. The evidence obtained is,
consequently, inadmissible. The Office of the Solicitor General filed its Comment 16 stating
that the shabu confiscated from petitioner was admissible in evidence against him; that
the search conducted on him was valid; and that he cannot raise the issue regarding the
apprehending officers’ non-compliance with Section 21, Article II of R.A. 9165 for the first
time on appeal.
OUR RULING
We find the instant appeal meritorious.
Accused-appellant is estopped from questioning the legality of his arrest.
Accused-appellant was arrested without a warrant. Section 5, Rule 113 of the Revised
Rules of Criminal Procedure, lays down the basic rules on lawful warrantless arrests
either by a peace officer or a private person, as follows:
Sec. 5. Arrest without warrant; when lawful. – A peace officer or a private person may,
without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts or circumstances that the person
to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily
 confined while his case is pending, or has escaped while being transferred from
one confinement to another.
The circumstances that transpired between accused-appellant and the arresting officer
show none of the above that would make the warrantless arrest lawful. Nevertheless,
records reveal that accused-appellant never objected to the irregularity of his arrest
before his arraignment. He pleaded not guilty upon arraignment. He actively participated
in the trial of the case. Thus, he is considered as one who had properly and voluntarily
submitted himself to the jurisdiction of the trial court and waived his right to question the
validity of his arrest.17
The warrantless search conducted is not among those allowed by law.
A waiver of an illegal arrest, however, is not a waiver of an illegal search. 18 Records have
established that both the arrest and the search were made without a warrant. While the
accused has already waived his right to contest the legality of his arrest, he is not
deemed to have equally waived his right to contest the legality of the search.
Jurisprudence is replete with pronouncements on when a warrantless search can be
conducted. These searches include: (1) search of a moving vehicle; (2) seizure in plain
1âwphi1
view; (3) customs search; (4) waiver or consented search; (5) stop-and-frisk situation; (6)
search incidental to a lawful arrest and (7) exigent and emergency circumstance. 19
The search made was not among the enumerated instances. Certainly, it was not of a
moving vehicle, a customs search, or a search incidental to a lawful arrest. There could
not have been a seizure in plain view as the seized item was allegedly found inside the
left pocket of accused-appellant’s pants. Neither was it a stop-and-frisk situation. While
thistype may seemingly fall under the consented search exception, we reiterate that
"[c]onsent to a search is not to be lightly inferred, but shown by clear and convincing
evidence."20
Consent must also be voluntary inorder to validate an otherwise illegal search; that is,
the consent mustbe unequivocal, specific, intelligently given, and uncontaminated by any
duress or coercion.21 In this case, petitioner was merely "ordered" to take out the
contents of his pocket. The testimony of the police officer on the matter is clear:
Q: And what did you do when you frisked a small plastic sachet?
A: When I felt something inside his pocket, I ordered him to bring out the thing which I
felt.
Q. : And what did Danilo Villanueva do when you instructed him to bring out the contents
of his pocket?
A: He took out the contents of his pocket and I saw the plastic containing shabu. 22
The evidence obtained is not admissible.
Having been obtained through an unlawful search, the seized item is thus inadmissible in
evidence against accused-appellant. Obviously, this is an instance of seizure of the "fruit
of the poisonous tree." Hence, the confiscated item is inadmissible in evidence
consonant with Article III, Section 3(2) of the 1987 Constitution: "Any evidence obtained
in violation of this or the preceding section shall be inadmissible for any purpose in any
proceeding."23 Without the seized item, therefore, the conviction of accused appellant
cannot be sustained. This being the case, we see no more reason to discuss the alleged
lapses of the officers in the handling of the confiscated drug.
As a final word, we reiterate that "[ w ]hile this Court appreciates and encourages the
efforts of law enforcers to uphold the law and to preserve the peace and security of
society, we nevertheless admonish them to act with · deliberate care and within the
parameters set by the Constitution and the law. Truly, the end never justifies the
means."24
WHEREFORE, premises considered, the assailed Decision dated 4 May 2011 and
Resolution dated 18 October 2011 issued by the Fourteenth Division of the Court of
Appeals in CA-G.R. C.R. No. 32582 are SET ASIDE. Petitioner is hereby ACQUITTED.
SO ORDERED.
G.R. No. 188794
HONESTO OGA YON y DIAZ, Petitioner,
vs.
PEOPLE OF THE PIDLIPPINES, Respondent.
DECISION
BRION, J.:
We resolve the petition for review on certiorari1 assailing the Decision2 dated March 31,
2009, and the Resolution3 dated July 10, 2009, of the Court of Appeals (CA) in CA-G.R.
CR No. 31154. The appealed decision affirmed the joint judgment4 dated September 5,
2007, of the Regional Trial Court (RTC), Branch 12, Ligao City, Albay, which convicted
petitioner Honesto Ogayon of violating Sections 11 and 12, Article II of Republic Act No.
9165.5
The Antecedent Facts
On December 1, 2003, two Informations were filed against Ogayon for the crimes
allegedly committed as follows:
I. Criminal Case No. 4738:
That at about 5:20 o’clock (sic) in the morning of October 2, 2003 at Barangay Iraya,
Municipality of Guinobatan, Province of Albay, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused did then and there willfully, unlawfully
and feloniously have in his possession, custody and control four (4) pcs. of small
aluminum foil, four (4) pcs. Of disposable lighter in different colors, one (1) blade
trademark "Dorco," and one (1) roll aluminum foil, instruments used or intended to be
used for smoking or consuming shabu, without authority of law, to the damage and
prejudice of the public interest and welfare. 6
II. Criminal Case No. 4739:
That at about 5:20 o’clock (sic) in the morning of October 2, 2003 at Barangay Iraya,
Municipality of Guinobatan, Province of Albay, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, with deliberate intent to violate the law,
and without authority of law, did then and there willfully, unlawfully and feloniously have
in his possession, custody and control two (2) heat-sealed transparent plastic sachets
containing 0.040 gram of methamphetamine hydrochloride (shabu), with full knowledge
that in his possession and control is a dangerous drug, to the damage and prejudice of
the public interest and welfare.7
During his arraignment in Criminal Case Nos. 4738 and 4739 on January 21, 2004, and
March 17, 2004, respectively, Ogayon denied both charges and pleaded "not guilty." The
joint pre-trial held on May 5, 2004 yielded only one factual admission on the identity of
the accused.8 A joint trial on the merits ensued.
The Prosecution Version
On October 2, 2003, at around 5:20 a.m., Police Chief Inspector Elmer Ferrera, together
with the other members of the Albay Provincial Police Office, proceeded to Ogayon’s
house in Barangay Iraya, Guinobatan, Albay, to enforce Search Warrant No. AEK 29-
2003.9The warrant was for the seizure of shabu and drug paraphernalia allegedly kept
and concealed in the premises of Ogayon’s house. Barangay Tanod Jose Lagana
(Tanod Lagana) and Kagawad Lauro Tampocao assisted the police team in conducting
the search.10
Upon reaching Ogayon’s house, the police team noticed several persons inside a nipa
hut located nearby. Suspecting that a pot session was about to be held, the police team
restrained two of the five persons and immediately proceeded to Ogayon’s house. After
introducing themselves as police officers, Senior Police Officer Herminigildo Caritos
(SPO4 Caritos) informed Ogayon that they had a warrant to search his place. SPO4
Caritos handed a copy of the warrant to Ogayon, who allowed the police team to conduct
the search.11
Led by SPO4 Caritos, some members of the police team went to the comfort room
located about five meters away from Ogayon’s house. When they searched the area,
they found an object (wrapped in a piece of paper with blue prints) that fell from the
wooden braces of the roof. Upon SPO4 Caritos’ inspection, the paper contained two (2)
small, heat-sealed transparent plastic sachets that the police team suspected to contain
shabu.
The search of the comfort room also uncovered four (4) disposable lighters, one (1) knife
measuring six inches long, used aluminum foil, one (1) roll of aluminum foil, and a
"Dorco" blade.12 SPO4 Caritos then placed his initials on the two (2) plastic sachets
before joining the rest of the police officers who were conducting a search in Ogayon’s
house. The police officers who searched Ogayon’s house found live ammunition for an
M-16 rifle.
After conducting the search, the police team prepared a Receipt of Property
Seized.13 The receipt was signed by the seizing officers, representatives from the
Department of Justice and the media, and two (2) barangay officials who were present
during the entire operation.14
The police team thereafter arrested Ogayon and the two (2) other persons who had
earlier been restrained, and brought them to Camp Simeon Ola for booking. The seized
items were likewise brought to the camp for laboratory examination. In his Chemistry
Report,15 Police Superintendent Lorlie Arroyo (forensic chemist of the Philippine National
Police Regional Crime Laboratory) reported that the two (2) plastic sachets seized from
Ogayon’s place tested positive for the presence of methamphetamine hydrochloride or
shabu.16
The Defense Version
The defense presented a different version of the events.
Testifying for himself, Ogayon disavowed any knowledge of the prohibited drugs and
claimed that he saw the seized items for the first time only when they were being
inventoried. His statements were corroborated by the testimony of his wife, Zenaida
Ogayon.
Ogayon asserted that prior to the search, he was asleep in his house. His wife Zenaida
woke him up because several policemen and barangay officials came to his house. He
claimed that the police team did not present any search warrant before conducting the
search, and it was only during trial that he saw a copy of the warrant.
He recounted that the police officers, splitting into two groups, conducted a simultaneous
search of his house and the comfort room located nearby. He noticed that SPO4 Caritos,
who was part of the group that searched the comfort room, came out and went to the
Barangay Hall. Shortly after, SPO4 Caritos returned, accompanied by Tanod Lagana.
SPO4 Caritos again went inside the comfort room, leaving Tanod Lagana waiting
outside. SPO4 Caritos thereafter came out from the comfort room and ran towards
Ogayon’s house while shouting "positive, positive."17
The RTC Ruling
On September 5, 2007, the RTC rendered a joint judgment convicting Ogayon of the two
criminal charges against him. Relying on the presumption of regularity, the RTC rejected
Ogayon’s frame-up defense. The dispositive portion of the joint judgment reads:
WHEREFORE, under the above considerations, judgment is hereby rendered as follows:
a. In Criminal Case No. 4738, accused, Honesto Ogayon y Diaz is found GUILTY
beyond reasonable doubt of Violation of Section 12, Art. II, Republic Act No.
9165, known as the "Comprehensive Dangerous Drugs Act of 2002," for his
unlawful possession of drug paraphernalia, namely: four (4) pcs. small aluminum
foil, one (1) roll aluminum foil, four (4) pcs. disposable lighters, and one (1) pc.
blade; thereby sentencing him to suffer the indeterminate penalty of
imprisonment of six (6) months and one (1) day to two (2) years and to pay a
FINE of ten thousand pesos (P10,000.00);
b. In Criminal Case No. 4739, accused, Honesto Ogayon y Diaz is found GUILTY
beyond reasonable doubt of Violation of Section 11, Art. II, Republic Act No.
9165, known as the "Comprehensive Dangerous Drugs Act of 2002," for his
unlawful possession of two (2) pcs. Small heat-sealed plastic sachets containing
methamphetamine hydrochloride or "shabu," with total net weight of 0.0400
gram; thereby, sentencing him to suffer the indeterminate penalty of
imprisonment of twelve (12) years and one (1) day to fourteen (14) years and to
pay a FINE of three hundred thousand pesos (P300,000.00). 18
Ogayon appealed to the CA. This time, he questioned the validity of the search warrant,
claiming it was improperly issued. He argued that the search warrant was defective for
lack of transcript showing that the issuing judge conducted an examination of the
applicant for search warrant and his witnesses.
The CA Ruling
In accordance with Section 5, Rule 126 of the Rules of Court, a judge must examine
under oath and in writing an applicant for search warrant and his witnesses. Although the
CA found no evidence in the records showing compliance with this requirement, it
nevertheless upheld the search warrant’s validity due to Ogayon’s failure to make a
timely objection against the warrant during the trial.
That Ogayon objected to the prosecution’s formal offer of exhibits, which included the
search warrant, was not sufficient for the CA. Ogayon merely claimed that the chemistry
report was not executed under oath, the items were not illegal per se, and that he did not
sign the Receipt of Property Seized since he was not present when the seized items
were confiscated. The CA noted that the objections were not based on constitutional
grounds, and for this reason, concluded that Ogayon is deemed to have waived the right
to question the legality of the search warrant. 19
Based on the search warrant’s validity, the CA affirmed Ogayon’s conviction for
possession of drugs and drug paraphernalia. Although the comfort room was located
outside Ogayon’s house, the CA declared that he exercised exclusive control over it and
should rightly be held responsible for the prohibited drugs and paraphernalia found there.
As with the RTC, the CA relied on the presumption of regularity of the police team’s
operation and found Ogayon’s claim of frame-up to be unsupported. The CA thus ruled
that the prosecution proved beyond reasonable doubt that Ogayon was liable for the
crimes charged.
The Issues
In the present petition, Ogayon raises the following assignment of errors:
I.
The CA erred in finding that Ogayon had waived his right to question the legality of the
search warrant.
II.
Even granting without admitting that Ogayon had already waived his right to question the
legality of the search warrant, the search conducted was still highly irregular, thereby
rendering the seized articles as inadmissible in evidence.
Ogayon primarily argues that there was a violation of his constitutional right to be secure
in his person, house, papers, and effects against unreasonable searches and seizures.
He denies waiving the right through his supposed failure to assail the search warrant’s
validity during the trial. On the contrary, he claims to have objected to the prosecution’s
formal offer of the search warrant.
Even assuming that he questioned the search warrant’s validity only during appeal,
Ogayon contends that this should not be interpreted as a waiver of his right. Since an
appeal in a criminal case throws the whole case open for review, any objection made on
appeal, though not raised before the trial court, should still be considered.
Ogayon next argues that the search conducted by the police team on his premises,
pursuant to an already defective search warrant, was highly irregular. He and his spouse
were in their house when SPO4 Caritos allegedly discovered the shabu in the comfort
room located outside their house, so they were not able to witness the search. Moreover,
he claimed that there were other persons near the premises of his house (and the
comfort room) when the search was conducted. Hence, it could not indubitably be
concluded that the seized items were under his actual and effective control and
possession.
The Court’s Ruling
The right against unreasonable searches and seizures is one of the fundamental
constitutional rights. Section 2, Article III of the Constitution, reads:
Section 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized.
[emphasis ours]
This right has been included in our Constitution since 1899 through the Malolos
Constitution20 and has been incorporated in the various organic laws governing the
Philippines during the American colonization, 21 the 1935 Constitution,22 and the 1973
Constitution.23
The protection afforded by the right is reinforced by its recognition as a fundamental
human right under the International Covenant on Civil and Political Rights and the
Universal Declaration of Human Rights,24 to both of which the Philippines is a
signatory.25 Both the Covenant and the Declaration recognize a person’s right against
arbitrary or unlawful interference with one’s privacy and property. 26
Given the significance of this right, the courts must be vigilant in preventing its stealthy
encroachment or gradual depreciation and ensure that the safeguards put in place for its
protection are observed.
Under Section 2, Article III of the Constitution, the existence of probable cause for the
issuance of a warrant is central to the right, and its existence largely depends on the
finding of the judge conducting the examination. 27 To substantiate a finding of probable
cause, the Rules of Court specifically require that –
Rule 126, Sec. 5. Examination of complainant; record. – The judge must, before issuing
the warrant, personally examine in the form of searching questions and answers, in
writing and under oath, the complainant and the witnesses he may produce on facts
personally known to them and attach to the record their sworn statem gether with the
affidavits submitted. [emphasis ours]
Ogayon’s appeal of his conviction essentially rests on his claim that the search warrant
was defective because "there was no transcript of stenographic notes of the proceedings
in which the issuing judge had allegedly propounded the required searching questions
and answers in order to determine the existence of probable cause." 28 We find that the
failure to attach to the records the depositions of the complainant and his witnesses
and/or the transcript of the judge’s examination, though contrary to the Rules, does not
by itself nullify the warrant. The requirement to attach is merely a procedural rule and not
a component of the right. Rules of procedure or statutory requirements, however salutary
they may be, cannot provide new constitutional requirements. 29
Instead, what the Constitution requires is for the judge to conduct an "examination under
oath or affirmation of the complainant and the witnesses he may produce," after which he
determines the existence of probable cause for the issuance of the warrant. The
examination requirement was originally a procedural rule found in Section 98 of General
Order No. 58,30 but was elevated as part of the guarantee of the right under the 1935
Constitution.31 The intent was to ensure that a warrant is issued not merely on the basis
of the affidavits of the complainant and his witnesses, but only after examination by the
judge of the complainant and his witnesses. As the same examination requirement was
adopted in the present Constitution, we declared that affidavits of the complainant and
his witnesses are insufficient to establish the factual basis for probable cause. 32 Personal
examination by the judge of the applicant and his witnesses is indispensable, and the
examination should be probing and exhaustive, notmerely routinary or a rehash of the
affidavits.33
The Solicitor General argues that the lack of depositions and transcript does not
necessarily indicate that no examination was made by the judge who issued the warrant
in compliance with the constitutional requirement.
True, since in People v. Tee,34 we declared that –
[T]he purpose of the Rules in requiring depositions to be taken is to satisfy the examining
magistrate as to the existence of probable cause. The Bill of Rights does not make it an
1âwphi1
imperative necessity that depositions be attached to the records of an application for a
search warrant. Hence, said omission is not necessarily fatal, for as long as there is
evidence on the record showing what testimony was presented. 35
Ideally, compliance with the examination requirement is shown by the depositions and
the transcript. In their absence, however, a warrant may still be upheld if there is
evidence in the records that the requisite examination was made and probable cause
was based thereon. There must be, in the records, particular facts and circumstances
that were considered by the judge as sufficient to make an independent evaluation of the
existence of probable cause to justify the issuance of the search warrant. 36
The Solicitor General claims that, notwithstanding the absence of depositions and
transcripts, the records indicate an examination was conducted. In fact, a statement in
the search warrant itself attests to this:
Search Warrant
xxxx
GREETINGS:
It appearing to the satisfaction of the undersigned after examination under oath of the
applicant and his witnesses that there is probable cause to believe that respondent,
without authority of law, has under his possession and control the following articles to wit:
---Methamphetamine Hydrochloride "Shabu" and paraphernalia which are kept and
concealed in the premises of his house particularly in the kitchen and in the CR outside
his house both encircled with a red ballpen, as described in the sketch attached to the
Application for Search Warrant, located at Bgy. Iraya, Guinobatan, Albay. 37 (emphasis
and underscore ours)
Generally, a judge’s determination of probable cause for the issuance of a search
warrant is accorded great deference by a reviewing court, so long as there was
substantial basis for that determination. 38 "Substantial basis means that the questions of
the examining judge brought out such facts and circumstances as would lead a
reasonably discreet and prudent man to believe that an offense has been committed,
and the objects in connection with the offense sought to be seized are in the place
sought to be searched."39
Apart from the statement in the search warrant itself, we find nothing in the
records of this case indicating that the issuing judge personally and thoroughly
examined the applicant and his witnesses. The absence of depositions and
transcripts of the examination was already admitted; the application for the search
warrant and the affidavits, although acknowledged by Ogayon himself, 40 could not be
found in the records. Unlike in Tee, where the testimony given during trial revealed that
an extensive examination of the applicant’s witness was made by the judge issuing the
warrant, the testimonies given during Ogayon’s trial made no reference to the application
for the search warrant. SPO4 Caritos testified that he was among those who conducted
the surveillance before the application for a search warrant was made. However, he was
not the one who applied for the warrant; in fact, he testified that he did not know who
applied for it.41
The records, therefore, bear no evidence from which we can infer that the requisite
examination was made, and from which the factual basis for probable cause to
issue the search warrant was derived. A search warrant must conform strictly to the
constitutional requirements for its issuance; otherwise, it is void. Based on the lack of
substantial evidence that the search warrant was issued after the requisite examination
of the complainant and his witnesses was made, the Court declares Search Warrant No.
AEK 29-2003 a nullity.
The nullity of the search warrant prevents the Court from considering Ogayon’s belated
objections thereto.
The CA declared that Ogayon had waived the protection of his right against
unreasonable searches and seizures due to his failure to make a timely objection against
the search warrant’s validity before the trial court. It based its ruling on the procedural
rule that any objections to the legality of the search warrant should be made during the
trial of the case. Section 14, Rule 126 of the Rules of Court provides the manner to
quash a search warrant or to suppress evidence obtained thereby:
Section 14. Motion to quash a search warrant or to suppress evidence; where to file. —
A motion to quash a search warrant and/or to suppress evidence obtained thereby may
be filed in and acted upon only by the court where the action has been instituted. If no
criminal action has been instituted, the motion may be filed in and resolved by the court
that issued the search warrant. However, if such court failed to resolve the motion and a
criminal case is subsequently filed in another court, the motion shall be resolved by the
latter court. [emphasis ours]
We find the CA’s casual treatment of a fundamental right distressing. It prioritized
compliance with a procedural rule over compliance with the safeguards for a
constitutional right. Procedural rules can neither diminish nor modify substantial
rights;42 their non-compliance should therefore not serve to validate a warrant that was
issued in disregard of the constitutional requirements. As mentioned, the existence of
probable cause determined after examination by the judge of the complainant and his
witnesses is central to the guarantee of Section 2, Article III of the Constitution. The ends
of justice are better served if the supremacy of the constitutional right against
unreasonable searches and seizures is preserved over technical rules of procedure.
Moreover, the courts should indulge every reasonable presumption against waiver of
fundamental constitutional rights; we should not presume acquiescence in the loss of
fundamental rights.43 In People v. Decierdo,44 the Court declared that "[w]henever a
protection given by the Constitution is waived by the person entitled to that protection,
the presumption is always against the waiver." The relinquishment of a constitutional
right has to be laid out convincingly.
In this case, the only evidence that Ogayon waived his constitutional right was his failure
to make a timely motion during the trial to quash the warrant and to suppress the
presentation of the seized items as evidence. This failure alone, to our mind, is not a
sufficient indication that Ogayon clearly, categorically, knowingly, and intelligently made
a waiver.45 He cannot reasonably be expected to know the warrant’s defect for lack of
data in the records suggesting that defect existed. It would thus be unfair to construe
Ogayon’s failure to object as a waiver of his constitutional right. In People v.
Bodoso,46 the Court noted that "[i]n criminal cases where life, liberty and property are all
at stake… The standard of waiver requires that it ‘not only must be voluntary, but must
be knowing, intelligent, and done with sufficient awareness of the relevant circumstances
and likely consequences.’"
At this point, we note the purpose for the enactment of Section 14, Rule 126 of the Rules
of Court – a relatively new provision incorporated in A.M. No. 00-5-03-SC or the Revised
Rules of Criminal Procedure (effective December 1, 2000). The provision was derived
from the policy guidelines laid down by the Court in Malaloan v. Court of Appeals 47 to
resolve the main issue of where motions to quash search warrants should be filed. In
other words, the provision was "intended to resolve what is perceived as conflicting
decisions on where to file a motion to quash a search warrant or to suppress evidence
seized by virtue thereof…."48 It was certainly not intended to preclude belated objections
against the search warrant’s validity, especially if the grounds therefor are not
immediately apparent. Thus, Malaloan instructs that "all grounds and objections then
available, existent or known shall be raised in the original or subsequent proceedings for
the quashal of the warrant, otherwise they shall be deemed waived," and that "a motion
to quash shall consequently be governed by the omnibus motion rule, provided,
however, that objections not available, existent or known during the proceedings for the
quashal of the warrant may be raised in the hearing of the motion to suppress."
A closer reading of the cases where the Court supposedly brushed aside belated
objections would reveal that the objections were disregarded because they had been
cured or addressed based on the records.
In Demaisip v. Court of Appeals,49 the accused asserted that the search warrant was
never produced in court, thus suggesting its absence. The Court, however, noted that
"there were supposed testimonies of its existence."
In People v. Tee,50 the accused claimed that the issuing judge failed to exhaustively
examine the complainant and his witnesses, and that the complainant’s witness (a
National Bureau of Intelligence operative) had no personal knowledge of the facts
comprising probable cause, but the Court brushed these claims aside. It found that the
witness’ knowledge of the facts supporting probable case was not based on hearsay as
he himself assisted the accused in handling the contraband, and that the issuing judge
extensively questioned this witness. In People v. Torres, 51 the accused assailed the
validity of the search conducted pursuant to a search warrant as it was supposedly made
without the presence of at least two witnesses, but the Court found otherwise, citing the
testimonies taken during the trial contradicting this claim. A similar objection was made
by the accused in People v. Nuñez,52 but the Court noted the testimony of the officer
conducting the search who stated that it was made in the presence of the accused
himself and two barangay officials.
The rulings in Malaloan v. Court of Appeals,53 People v. Court of Appeals,54 and People v.
Correa55 are without significance to the present case. As mentioned, Malaloan v. Court of
Appeals involved the question of where motions to quash search warrants should be
filed, and the guidelines set therein was applied in People v. Court of Appeals. People v.
Correa, on the other hand, involved a warrantless search of a moving vehicle.
We reiterate that the requirement to raise objections against search warrants during trial
is a procedural rule established by jurisprudence. Compliance or noncompliance with this
requirement cannot in any way diminish the constitutional guarantee that a search
warrant should be issued upon a finding of probable cause. Ogayon’s failure to make a
1âwphi1
timely objection cannot serve to cure the inherent defect of the warrant. To uphold the
validity of the void warrant would be to disregard one of the most fundamental rights
guaranteed in our Constitution.
In the light of the nullity of Search Warrant No. AEK 29-2003, the search conducted on
its authority is likewise null and void. Under the Constitution, any evidence obtained in
violation of a person’s right against unreasonable searches and seizures shall be
inadmissible for any purpose in any proceeding. 56 With the inadmissibility of the drugs
seized from Ogayon' s home, there is no more evidence to support his conviction. Thus,
we see no reason to further discuss the other issues raised in this petition.
WHEREFORE, under these premises, the Decision dated March 31, 2009, and the
Resolution dated July 10, 2009, of the Court of Appeals in CA-G.R. CR No. 31154 are
REVERSED and SET ASIDE. Accordingly, the judgment of conviction, as stated in the
joint judgment dated September 5, 2007, of the Regional Trial Court, Branch 12, Lig ity,
Albay, in Criminal Case Nos. 4738 and 4739, is REVERSED and SET ASIDE, and
petitioner HONESTO OGA YON y DIAZ is ACQUITTED of the criminal charges against
him for violation of Republic Act No. 9165.
SO ORDERED.
G.R. No. 210616, November 25, 2015
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. EDDIE SALIBAD Y
DILO, Accused-Appellant.
DECISION
VILLARAMA, JR., J.:
On appeal is the Decision1 dated June 25, 2013 of the Court of Appeals (CA)
in CA-G.R. CR HC No. 05247 convicting accused-appellant Eddie Salibad y
Dilo of the crime of murder.
We state the antecedents based on the findings of the lower courts hereunder
quoted: chanRoblesvirtualLawli brary
Appellant was indicted for Murder in an Amended Information 2 dated October
3, 2008, the accusatory portion of which reads:
"That on or about the 1st day of June 2008, at Lepanto, Municipality of
Mankayan, Province of Benguet, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, with treachery and evident
premeditation and with deliberate intent to kill, using an unlicensed caliber
.45 firearm, did then and there willfully, unlawfully and feloniously shoot one
RAYMUNDO DACUYAN Y CABANNAG thereby inflicting a gunshot wound on his
abdomen that caused his death, to the damage and prejudice of the heirs of
RAYMUNDO DACUYAN Y CABANNAG.
That in the commission of the crime, the qualifying aggravating circumstance
of use of unlicensed firearm is present. The qualifying circumstance of
treachery is also present because the attack was so sudden and without any
provocation on the part of the victim thereby making him totally defenseless
and ensuring no risk on the part of the accused.
CONTRARY TO LAW."
During the arraignment on October 7, 2008, appellant pleaded "not guilty" to
the crime charged. Pre-trial conference was terminated on January 13, 2009.
Thereafter, trial on the merits ensued.
The evidence for the prosecution as summarized in the People's Brief are
hereby adopted as follows:
"On June 1, 2008, at about 2:00 in the afternoon, Manuel Binwag (Manuel)
and Diego Aclibon (Diego) went to the 1030 level of the mine site of Lepanto
Mining Company at Paco, Mankayan, Benguet and asked permission from
Raymundo Dacuyan (Raymundo), the security guard of the place, to allow
them to dig scrap iron near the river. Raymundo allowed them to dig but only
until 3:00 in the afternoon. They collected scrap iron until Raymundo ordered
them to stop at about 3:30 in the afternoon. After talking to them, Raymundo
turned around to go back to his post. At that moment, appellant Eddie
Salibad [accused-appellant] suddenly appeared in front of Raymundo and
instantaneously shot him hitting him in the middle right portion of his
abdomen. Raymundo was able to prevent a second shot from being fired at
him but fell to the ground in that instant. The second shot hit the wall.
Manuel and Diego ran away after they saw Raymundo fall down. While
running, they heard another gunshot. Manuel and Diego were only about
thirty (30) feet3 x x x from where the shooting incident occurred.
Acting on a text message forwarded by the Chief of Police of Mankayan Police
Station that a man with a gun was running down the UCCP Compound,
Aurora St., Mankayan, Benguet, two (2) teams were immediately formed and
dispatched by SPO3 Oliver Paleng (SPO3 Paleng) in response to the said
report. Before the teams could leave the police station, a certain Myrick
Campos (Myrick) arrived and informed them that his brother-in-law stole his
gun from him. Together with Myrick, the team of PO1 Robert Velasco (PO1
Velasco) reached San Roque, Paco, Mankayan, Benguet at about 4:00 in the
afternoon and waited for the person described in the message. At about
4:45, the team saw a person with an object bulging on his waist walking
towards them. The said person - who turned out to be [accused appellant] -
was identified by Myrick as his brother-in-law who took his gun. The police
officers then frisked appellant and found the gun on his waist, with two (2)
live ammunitions in the magazine and one (1) empty shell in his pants
pocket. [Accused-appellant] was brought to the police station and the
confiscated gun, ammunitions and empty shells were marked and brought to
the crime laboratory for examination. It was subsequently confirmed that
[accused-appellant] was not a licensed or registered firearm holder.
Meanwhile, the lifeless body of Raymundo was brought to the Lepanto Chapel
where an autopsy was conducted on June 3, 2008 by Dr. Jaime Rodrigo Leal
(Dr. Leal) of the PNP Crime Laboratory upon the request of the Mankayan
Police Station. Dr. Leal found that Raymundo sustained one gunshot [wound]
at the right upper quadrant of the abdomen; that the bullet penetrated the
abdomen but did not make an exit; and that the bullet was recovered at the
level of the tenth thoracic vertebra. It was concluded that the cause of
Raymundo's death was bleeding secondary to the gunshot injury."
Appellant presented a different version of the events, to wit: chanRoblesvirtualLawl ibrary
"On June 1, 2008, Eddie Salibad was at a drinking place known as
'Uwaynasdi' with his cousin and brother. They spent most of the day imbibing
bottles of 4x4 and 2x2 from nine o'clock in the morning (9:00 am) until two
o'clock in the afternoon (2:00 p.m.); the hour when the curfew or ban
against drinking alcohol takes effect. Salibad and his companions left the
drinking place to go to the Plaza but along the way, three (3) men blocked
the path of his younger brother. In an attempt to diffuse the situation and
prevent the possible mauling of his brother, Salibad tried to pacify the men
only to receive some punches and be mauled himself. He suffered a black eye
from the encounter. He went to the Municipal Hall to report the incident but
instead of being assisted by the police, he was again boxed and physically
maltreated by a police officer. So, he went to his camp in Mankayan where he
took his gun intent on protecting himself as he walked his way home to
Cabiten.
He ha[d] not gone far when someone came and chased him. Fearing for his
life, he fled. He intended to go to Aurora but did not know the way so he took
the route going down to the river and followed the river's flow. It Was this
path that lead him to the compound of Lepanto where the security guard,
Raymundo Dacuyan, stood sentry at the portal of 1030 Level. Salibad sought
permission from the guard that he be allowed to enter the compound but the
latter forbade him. Determined to go home via San Roque, he went about his
way passing through the portal and approaching the guard. The latter
grabbed his hand in an attempt to get his gun that was, at that time, tucked
on his back right underneath his white shirt. To prevent losing his only source
of protection, Salibad turned his back away and face[d] the guard. He held on
to the gun but the guard stopped his move by clasping his hand that was
holding the firearm. They began to grapple and fight for the possession of the
weapon. At this point, their brawl caused the gun to get cocked and when
Salibad inadvertently pulled the trigger, the gun went off. The first shot did
not hit anyone. They continued to fight and for the second time, the gun was
cocked, the trigger pulled and a second shot was fired.
Somehow, the guard was able to press the release button and [the] gun's
magazine fell on the ground. But the fighting ensued and for the third time,
the gun went off. By this time, Salibad's fear was overwhelming and so at the
first chance of escape, he took the gun and ran towards what he perceived as
the way home. At San Roque, by the waiting shed, he was approached by
several men who introduced themselves as police officers. He was frisked and
his gun was confiscated together with the empty shell found in his pocket and
the magazine with three (3) bullets. They took him up a mountain and in the
woods, they mauled him until he lost consciousness. When he woke up, he
was a[t] the police station.
The accused admitted that he did not have a license to carry or to possess a
firearm. He, however, denied having shot the deceased guard and of seeing
and knowing any of the witnesses who positively identified him, namely[:]
Manuel Binwag and Diego Aclibon. When [asked] why he did not report the
incident to any authorities, the accused expressed his fear of the policemen
who boxed him and threatened to silence him."
After trial on the merits, the trial court rendered a Judgment 4 dated May 18,
2011, the dispositive portion of which reads:
"WHEREFORE, the court finds the Accused, guilty beyond reasonable doubt
of the crime of murder. He is hereby sentenced to suffer Reclusion Perpetua.
On the civil aspect of the case, the Accused is hereby ordered to pay the
Heirs of the victim Raymundo Dacuyan, represented by his widow, Tomasa
Dacuyan, the amount of One Hundred [Thousand] (P100,000.00) Pesos, as
actual damages and One Hundred Thousand (P100,000.00) Pesos, as moral
damages.
 SO ORDERED.10 ChanRob lesVirtua lawl ibrary

SO ORDERED."
cralawlawli brary

Upon appellant's motion, the trial court rendered the assailed Amended Hence, this appeal.
Judgment dated June 16, 2011 x x x.5 cralawlawlib rary

The issues raised for the consideration of the Court are:

The dispositive portion of the RTC Amended Judgment6 reads: chanRoblesvirtualLawlib rary

1. Whether the testimony of prosecution witnesses Manuel and

WHEREFORE, the Court finds the Accused, guilty beyond reasonable doubt Diego that accused-appellant killed the victim, employing
of the crime of Murder. He is hereby sentenced to suffer Reclusion Perpetua. treachery, was sufficient for a conviction of murder.

On the civil aspect of the case, the Accused is hereby ordered to pay the 2. Whether there is a need to present the firearm itself for the
Heirs of the victim Raymundo Dacuyan, represented by his widow, Tomasa appreciation of the special aggravating circumstance of the use
Dacuyan, the amount of One Hundred Sixty[-]Two Thousand Five Hundred of an unlicensed firearm; and
Sixty[-]Four (P162.564.001 Pesos, as actual damages and One Hundred
Thousand (P100,000.00) Pesos, as moral damages. 3. Whether the amounts of civil indemnity and damages awarded
were proper.
SO ORDERED.7
cralawlawli brary
ChanRoblesVirtua lawl ibrary
cralawlawli brary

Accused-appellant filed an appeal before the CA which affirmed the RTC
Decision convicting accused-appellant and giving credence to the testimonies
of Manuel Bin wag (Manuel) and Diego Aclibon (Diego) who saw the killing of
Raymundo. The CA pointed out that accused-appellant was validly arrested
without a warrant and that the search incidental thereto was lawful. More,
the CA ruled that accused-appellant could not question his arrest at that point
as failure to question the validity of an arrest before entering a plea
constitutes a waiver thereof. The CA lowered the moral damages awarded
from P100,000.008 to P50,000.00 and awarded temperate damages in the
amount of P25,000.00 in lieu of actual damages for failure of the prosecution
to present receipts as proof of actual damages. The CA also awarded the
additional amounts of P75,000.00 as civil indemnity and P30,000.00 as
exemplary damages. The fallo of the CA Decision reads: chanRoblesvirtualLawlibrary
We affirm accused-appellant's conviction.
Accused-appellant is guilty of murder.
The elements of murder are: (1) a person was killed; (2) the accused killed
him; (3) the killing was with the attendance of any of the qualifying
circumstances mentioned in Article 248 of the Revised Penal Code, as
amended; (4) the killing neither constitutes parricide or infanticide.11
In this case, Raymundo was killed and it was established by the prosecution,
through the testimony of eyewitnesses Manuel and Diego and that accused-
appellant killed Raymundo with a gunshot to the abdomen. Manuel narrated
the incident as follows: chanRoblesvirtualLaw library

WHEREFORE, premises considered, the instant appeal is DENIED. The PROS. COPAS:
assailed Amended Judgment dated June 16, 2011 in Criminal Case No. 555-
CR-08 is hereby AFFIRMED with MODIFICATION. Appellant Eddie Salibad Q: What was Raymundo Dacuyan doing when you saw Eddie Salibad [arrive]?
y Dilo is hereby ordered to indemnify the heirs of Raymundo Dacuyan y
Cabannag the amounts of (a) P75,000.00 as civil indemnity; (b) P50,000.00 [MANUEL BINWAG]
as moral damages; (c) P30,000.00 as exemplary damages; and (d) A: Sir, he was talking to us to leave because we go beyond the time he said. [He
P25,000.00, as actual damages,9 all with interest at the legal rate of six was asking us to leave as we went beyond the time he allowed us to collect
percent (6%) per annum from the finality of this Decision until fully paid.
scrap iron.]
xx A: Yes, Sir.
xx
Q: While he was telling [you that], what happen[ed] next[,] if any?
xx
A: After saying that he was about to turn around to enter or proceed but then he xx
was facing already the suspect, sir.
Q: How long did it take Eddie Salibad to shoot Raymundo Dacuyan from the
Q: And when he was about to turn around and found that the suspect was infront time you [noticed him]?
of him, what [happened]?
A: He just went there and shot him, Sir.
A: Sir, the suspect shot him.
xx
Q: Were you able to see if he was hit? xx
A: Yes, sir. Q: Would you know what part of his body was hit[,] if any?
Q: What part of his body was hit? xx
xx
A: Here, sir. (Witness pointed to his middle right of the abdomen). 12
A: Here, Sir. (Witness pointed to his right portion of the abdomen.) 13
[TSN, March 24, 2009] cralawlawli brary

PROS. COPAS:
We find that the eyewitnesses described the killing of Raymundo in sufficient
Q: Mr. [W]itness, do you recall where [you were] on the first day of June 2008, detail describing how the victim was fatally shot, what part of the body was
particularly at about 3:00 o'clock in the afternoon? shot, when he was shot, the type of weapon that was used in the crime and
the identity of the shooter.14 We note that the eyewitnesses' narration of
[DIEGO ACLIBON] Raymundo's murder is consistent with the medical findings15 indicating the
A: We were in Mines 1030 level, Sir. location of the fatal wound. The testimonies of Manuel and Diego are also
consistent with one another which is an indication that they indeed witnessed
xx the incident. More, we find the testimony of the witnesses credible in view of
xx the finding of the RTC and CA that the eyewitnesses were disinterested
witnesses who have no ill motive in testifying against accused-appellant.16
Q: While in [the] same place, do you recall any unusual event that happen[ed]?
Accused-appellant questions his conviction on the ground that witnesses
A: There was shooting, Sir.
Manuel and Diego were 30 feet away,17 gathering scrap iron, in a place below
Q: Who shot who? the scene of the crime.

A: Mr. Eddie Salibad, Sir. We are not persuaded by accused-appellant's claim. The eyewitnesses'
statements were correctly given credence by the lower courts. Indeed, the
Q: [Who] did Mr. Salibad [shoot]?
test of credibility is not based solely on proximity. The Court has affirmed
A: Sir, Raymundo Dacuyan. convictions based on the testimony of witnesses who identified assailants
from a distance of 31 feet18 and even from a distance of 50 meters away,
Q: And were you able to see the actual shooting? while witnesses were gathering coconuts, with tall and short shrubs between
the witnesses and the place where the felony occurred.19 It is settled that the
Court gives the highest respect to the RTC's evaluation of the testimony of
the witnesses, considering its unique position in directly observing the
demeanor of a witness on the stand. The rule is even more stringently
applied if the CA concurred with the RTC.20 We find no reason to rule
otherwise in this case.
As for the qualifying circumstance of treachery, paragraph 16 of Article 14 of
the Revised Penal Code defines treachery as the direct employment of
means, methods, or forms in the execution of the crime against persons
which tend directly and specially to insure its execution, without risk to the
offender arising from the defense which the offended party might make.21
The RTC and CA correctly ruled that the eyewitnesses were able to establish
treachery on the basis of Manuel and Diego's testimony that accused-
appellant shot the victim immediately after arriving as the latter turned
around after talking to the witnesses.22 The Court has ruled that the essence
of treachery is the sudden and unexpected attack, without the slightest
provocation on the part of the person attacked.23 In People v. Perez,24 it was
explained that a frontal attack, such as the shooting in this case, does not
necessarily rule out treachery. The qualifying circumstance may still be
appreciated if the attack was so sudden and so unexpected that the deceased
had no time to prepare for his or her defense. The sudden appearance of
accused-appellant while Raymundo was preoccupied talking to Manuel and
Diego and the use of a firearm resulted in a situation where the attack caught
the victim by surprise depriving him of the chance to put up any defense
before the fatal shot was fired. While he was able to parry a second shot, the
first shot fired by appellant has already inflicted a fatal wound in the victim's
body. Thus, treachery was correctly appreciated in this case.
Accused-appellant's conviction for
murder attended by the special aggravating
circumstance of the use of an unlicensed
firearm was proved by evidence independent
of the unlicensed firearm itself.
Accused-appellant25 himself agrees that an accused is estopped from
assailing the legality of his arrest if he fails to raise such defense before
arraignment.26 Accused-appellant stresses, however, that a waiver of an
illegal warrantless arrest does not carry with it a waiver of inadmissibility of
evidence seized during the illegal warrantless arrest.27 Accused-appellant
asserts that the lower courts erred in admitting the unlicensed firearm as
evidence because the warrantless search was illegal. The prosecution, on the
other hand, argues that accused-appellant was lawfully arrested on the basis
of a text message forwarded by the Chief of Police about a man holding a
gun28 running down the UCCP Compound and the identification of the
accused-appellant by Myrick as the man who stole his gun. Consequently, the
search which yielded the gun was lawful. The prosecution added that even
assuming that the gun found in the possession of accused-appellant is found
to be inadmissible, accused-appellant may still be convicted of murder
aggravated by the use of an unlicensed firearm, as the felony was proved by
evidence independent of the firearm itself.
We find the issue of the firearm's admissibility inconsequential as the use of
the unlicensed firearm in committing the crime, and even the crime itself,
were proved by evidence independent of the firearm seized from accused-
appellant.
The Court has clarified that there is no need to present the firearm itself to
prove the existence of an unlicensed firearm. People v. Narvasa29 is
instructive on this matter, viz.:
chanRoblesvirtualLawli brary
x x x In People v. Lualhati, this Court merely stated that the existence of the
firearm must be established; it did not rule that the firearm itself had to be
presented as evidence. Thus, in People v. Orehuela, the Court held that the
existence of the firearm can be established by testimony, even without the
presentation of the said firearm, x x x
cralawlawli brary
The Court has used these guidelines not only for the crime of illegal
possession of an unlicensed firearm itself but also in the appreciation of the
special aggravating circumstance of using an unlicensed firearm30 in the
commission of a crime.31
In this case, we find the testimony of Manuel and Diego as to the existence of
the firearm and its use in the crime of murder coupled with the
Certification32 from the Philippine National Police Firearms and Explosives
Division to the effect that accused-appellant was not a licensed firearm holder
of any kind and caliber sufficient to consider the special aggravating
circumstance of use of an unlicensed firearm. Consequently, the CA and RTC
correctly imposed the maximum penalty of reclusion perpetua for the crime
of murder aggravated by the use of an unlicensed firearm.
Damages awarded must be modified.

We deem it proper to increase the award of civil indemnity from P75,000.00
to PI 00,000.00; moral damages from P50,000.00 to P100,000.00; and
exemplary damages from P30,000.00 to P100,000 in line with People v.
Gambao33 This increased award of damages has been applied by the Court to
a similar case34 where the use of an unlicensed firearm was considered a
special aggravating circumstance in the crime of murder which would have
warranted the imposition of the death penalty if not for the provisions of
Republic Act No. 9346.35
As to the actual damages claimed by the heirs of the victim, the Court has
held that only expenses supported by receipts and which appear to have
been actually expended in connection with the death of the victims may be
allowed.36 Unfortunately, in this case, the heirs of the victim were not able to
substantiate their claims through receipts. Nevertheless, it is proper to award
temperate damages37 in lieu of actual damages since the heirs of the victim
suffered a loss but could not produce documentary evidence to support their
claims. In line with prevailing jurisprudence involving convictions for
murder,38 the Court affirms the CA's award of P25,000.00 as temperate
damages39 in favor of the heirs of the victim.
WHEREFORE, in light of all the foregoing, the appeal is hereby DISMISSED.
The Decision dated June 25, 2013 of the Court of Appeals in CA-G.R. CR IIC
No. 05247 convicting accused-appellant Eddie Salibad y Dilo of murder
is AFFIRMED with MODIFICATION. Accused-appellant is sentenced
to reclusion perpetua without eligibility for parole40 and ordered to pay the
heirs of Raymundo Dacuyan P100,000.00 as civil indemnity; PI00,000.00 as
moral damages; P100,000.00 as exemplary damages; and P25,000.00 as
temperate damages in lieu of actual damages, with interest of six percent
(6%) per annum on all damages awarded from the finality of this Decision
until fully paid.
With costs against accused-appellant.
SO ORDERED. chanroblesvirtuallawl ib
G.R. No. 189272 January 21, 2015
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
CHI CHAN LIU a.k.a. CHAN QUE and HUI LAO CHUNG a.k.a. LEOFE
SENGLAO, Appellants.
DECISION
PERALTA, J.:
For this Court's consideration is the Decision1 dated January 9, 2009 and
Resolution2 dated April 24, 2009 of the Court of Appeals (CA) in CAG. R. CR HC No.
00657 affirming the Decision3 dated June 21, 2004 of the Regional Trial Court (RTC),
Branch 44, Mamburao, Occidental Mindoro, in Criminal Case No. Z-1058, finding
appellants guilty beyond reasonable doubt of violating Section 14, Article III, in relation to
Section 21 (a), Article IV of Republic Act (RA) No. 6425, otherwise known as the
Dangerous Drugs Act of 1972, as amended by RA No. 7659.
The facts, as culled from the records, are the following:
At 10:00 a.m. of December 3, 1998, SPO2 Lazaro Paglicawan and SPO3 Isagani Yuzon,
the officers-on-duty at the Philippine National Police (PNP) Station, Looc, Occidental
Mindoro, received a radio message from the Barangay Captain of Ambil Island, Looc,
Maximo Torreliza, that a suspicious looking boat was seen somewhere within the vicinity
of said island.4 Immediately thereafter, the police officers headed towards the specified
location wherein they spotted two (2) boats anchored side by side, one of which
resembled a fishing boat and the other, a speed boat. They noticed one (1) person on
board the fishing boat and two (2) on board the speed boat who were transferring cargo
fromthe former to the latter. As they moved closer to the area, the fishing boat hurriedly
sped away. Due to the strong waves, the police officers were prevented from chasing the
same and instead, went towards the speed boat, which seemed to be experiencing
engine trouble. On board the speed boat, the officers found the appellants Chi Chan Liu
a.k.a. ChanQue and Hui Lao Chung a.k.a. Leofe Senglao with several transparent plastic
bags containing a white, crystalline substance they instantly suspected to be the
regulated drug, methamphetamine hydrochloride, otherwise known as "shabu." They
requested the appellants to show their identification papers but appellants failed to do
so.5 Thus, the police officers directed appellants to transfer to their service boat and
thereafter towed appellants’ speed boat to the shore behind the Municipal Hall of Looc,
Occidental Mindoro. On their way, the police officers testified that appellant Chi Chan Liu
repeatedly offered them "big, big amount of money" which they ignored.6
Upon reaching the shore, the police officers led the appellants, together with the bags
containing the crystalline substance, to the police station. In the presence of the
appellants and Municipal Mayor Felesteo Telebrico, they conducted an inventory of the
plastic bags which were forty five (45) in number, weighing about a kilo each. 7 Again,
SPO3 Yuson requested proper documentation from the appellants as to their identities
as well as to the purpose of their entry in the Philippine territory. 8 However, the appellants
did not answer any of SPO3 Yuson’s questions. 9 Immediately thereafter, SPO3 Yuson
reported the incident to their superiors, PNP Provincial Command in San Jose,
Occidental Mindoro and PNP Regional Command IV in Camp Vicente Lim, Calamba,
Laguna. The PNP Regional Director General Reynaldo Acop advised them to await his
arrival the following day.10
On December 4, 1998, General Acop arrived together with Colonel Damian on a
helicopter. They talked with Mayor Telebrico and the arresting officers and then brought
the appellants with the suspected illegal drugs to Camp Vicente Lim, Calamba, Laguna,
for further investigation.11 There, the appellants and the suspected prohibited drugs were
turned over to Police Inspector Julieto B. Culili, of the Intelligence and Investigation
Division, PNP, Regional Office IV, who attempted to communicate with the appellants
using "broken" English. According to Inspector Culili, appellant Chi Chan Liu only kept
saying the phrase "call China, big money," giving him a certain cellular phone
number.12 He allowed appellants to call said number in which they spoke with someone
using their native language, which he could not understand. 13 Because of this difficulty,
Inspector Culili sought the assistance of Inspector Carlito Dimalanta in finding an
interpreter who knew either Fookien or Cantonese.
On December 5, 1998, the interpreter arrived. With the assistance of said interpreter,
Inspector Culili informed and explained to the appellants their rights under Philippine
laws inclusive of the right to remain silent, the right to counsel, as well as the right tobe
informed of the charges against them, and the consequences thereof. 14 Inspector Culili
also requested the interpreter to ask the appellants whether they wanted to avail of said
constitutional rights. However, appellants only kept repeating the phrase "big money, call
China." Apart from their names, aliases and personal circumstances, the appellants did
notdivulge any other information.15 Inspector Culili, with the assistance of the arresting
officers, then prepared the Booking Sheet and Arrest Report of the appellants, requested
for their physical and medical examination, as well as the laboratory examination of the
white, crystalline substance inthe bags seized from them.16 He also assisted the arresting
officers in the preparation of their affidavits.17 According to Inspector Culili, moreover,he
was able to confirm that the appellants are Chinese nationals from Guandong, China,
based on an earlier intelligence report that foreign nationals on board extraordinary types
of vessels were seen along the sealine of Lubang Island in Cavite, and Quezon
Province.18
Thereafter, Police Inspector Mary Jean Geronimo, PNP Chief Forensic Chemist/Physical
Examiner assigned at the PNP Regional Crime Laboratory Service Office, Camp Vicente
Lim, Laguna conducted an examination of the white, crystalline substance in the forty-
five (45) bags seized from the appellants.19 After performing three (3) tests thereon, she
positively confirmed in her Chemistry Report that the same is, indeed, methamphetamine
hydrochloride, otherwise known as "shabu." 20
On December 8, 1998, the Office of the Provincial Prosecutor of Occidental Mindoro filed
an Information21 with the RTC of Mamburao, Occidental Mindoro, against appellants for
violation of Section 14, Article III, in relation to Section 21 (a), Article IV of RA No. 6425
as amended by RA No. 7659, committed as follows:
That on or about 1:00 o’clock in the afternoon of December 3, 1998 at the coast of Brgy.
Tambo, Ambil Island in the Municipality of Looc Province of Occidental Mindoro,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused
being then the persons not authorized by law conspiring and mutually helping one
another, did then and there wilfully, unlawfully, feloniously import and bring through the
use of sea vessel into the above-mentioned place, Methamphetamine Hydrochloride
known as Shabu contained in forty-five (45) heat-sealed transparent plastic bags having
a total weight of 46,600 grams (46.60 kilograms) placed inside another forty-five(45)
separate self-seling (sic) transparent plastic bags which is prohibited by law, to the
damage and prejudice of public interest.
Appellants pleaded not guilty to the charges against them. Thereafter, trial on the merits
ensued, where the facts earlier stated were testified to by the witnesses for the
prosecution, specifically: SPO2 Paglicawan, SPO3 Yuson, Police Inspector Culili, and
Police Inspector Geronimo.
The testimonies of the witnesses for the defense, namely: Jesus Astorga and Fernando
Oliva, both residents of Ambil Island, Leopoldo S. J. Lozada, a former Supervising Crime
Photographer of the PNP, and Godofredo de la Fuente Robles, a Member of the Looc
Municipal Council, essentially maintain that the subject crystalline substance was merely
recovered by the apprehending police officers from the house of Barangay Captain
Maximo Torreliza and not actually from the speed boat the appellants were on. 22
The trial court found appellants guilty beyond reasonable doubt in its Decision dated
June 21, 2004, the dispositive portion of which reads:
WHEREFORE, finding both accused CHI CHAN LIU @ "CHAN QUE" AND HIU LAO
CHUNG @ "LEOFE SENG LAO" GUILTY BEYOND REASONABLE DOUBT OF
VIOLATING Section 14, Article III, in relation to Section 21 (a), Article IV as amended by
R. A. 7659 known as the Dangerous Drugs Act of 1972, as amended, the Court hereby
sentences each of them to suffer the penalty of IMPRISONMENT OF RECLUSION
PERPETUA and to each pay the FINE of One Million (Php1,000,000.00) Pesos
Philippine Currency, with cost de officio.
SO ORDERED.23
On appeal, the CA affirmed in toto the Decision of the RTC in its Decision dated January
9, 2009. On April 24, 2009, it further denied the appellants’ Motion for Reconsideration in
its Resolution finding no cogent reason to make any revision, amendment, or reversal of
its assailed Decision. Hence, the present appeal raising the following issues:
I.
WHETHER OR NOT ALL THE ELEMENTS OF THE CRIME OF IMPORTATION OF
REGULATED DRUGS PUNISHABLE UNDER SECTION 14, ARTCILE III, IN RELATION
TO SECTION 21 (A), ARTICLE IV OF REPUBLIC ACT 6425, AS AMENDED BY
REPUBLIC ACT 7659, ARE PRESENT IN THIS CASE.
II.
WHETHER OR NOT THE CORPUS DELICTI OF THE CRIME CHARGED HAS BEEN
ESTABLISHED BEYOND REASONABLE DOUBT.
III.
WHETHER OR NOT THE PRESUMPTION OF REGULARITY IN THE PERFORMANCE
OF OFFICIAL DUTIES CAN PREVAIL OVER THE GUARANTEES ENSHRINED AND
KEPT SACRED BY THE PHILIPPINE CONSTITUTION IN THIS CASE.
IV.
WHETHER OR NOT THE ARRAIGNMENT OF ACCUSEDAPPELLANTS IS VALID.
V.
WHETHER OR NOT THE GUILT OF ACCUSED-APPELLANTS WAS PROVEN
BEYOND REASONABLE DOUBT.24
Appellants maintain that there is no importation of regulated drugs in the instant case
since the elements of the crime of importation, namely: (1) the importation or bringing
into the Philippines of any regulated or prohibited drug; and (2) the importation or
bringing into the Philippines of said drugs was without authority of law, were not
established herein. Appellants assert that unless there is proof that a ship on which
illegal drugs came from a foreign country, the offense does not fall within the ambit of
illegal importation of said drugs. Thus, considering the prosecution’s failure to prove the
place of origin of the boat on which appellants were apprehended, appellants cannot be
convicted of the crime charged herein.
Appellants also claim that the prosecution failed to substantiate beyond reasonable
doubt the corpus delicti of the crime charged for the chain of custody of the illegal drugs
subject of this case was not sufficiently established. In addition, they emphasize the
irregularities attendant in their arrest and seizure of the illegal drugs in violation of their
constitutionally protected rights. Appellants further call attention to the invalidity of their
arraignment for they were not represented by a counsel of their choice.
This Court finds merit on appellants’ first argument.
The information filed by the prosecutor against appellants charged appellants with
violation of Section 14, Article III, in relation to Section 21 (a), Article IV of RA No. 6425,
otherwise known as the Dangerous Drugs Act of 1972, as amended by RA No. 7659,
which provide:
ARTICLE III
Regulated Drugs
Section 14. Importation of Regulated Drugs. The penalty of imprisonment ranging from
six years and one day to twelve years and a fine ranging from six thousand to twelve
thousand pesos shall be imposed upon any person who, unless authorized by law, shall
import or bring any regulated drug into the Philippines.
xxxx
ARTICLE IV
Provisions of Common Application to Offenses Penalized
under Articles II and III
xxxx
Section 21. Attempt and Conspiracy. The same penalty prescribed by this Act for the
commission of the offense shall be imposed in case of any attempt or conspiracy to
commit the same in the following cases:
a) importation of dangerous drugs;
On the basis of the foregoing provisions, the crime of importation of regulated drugs is
committed by importing or bringing any regulated drug into the Philippines without being
authorized by law. According to appellants, if it is not proven that the regulated drugs are
brought into the Philippines from a foreign origin, there is no importation. In support of
this, they cite our ruling in United States v. Jose,25 wherein We said that:
There can be no question that, unless a ship on which opium is alleged to have been
illegally imported comes from a foreign country, there is no importation. If the ship came
to Olongapo from Zamboanga, for example, the charge that opium was illegally imported
on her into the port of Olongapo, i.e., into the Philippine Islands, could not be sustained
no matter how much opium she had on board or how much was discharged. In order to
establish the crime of importation as defined by the Opium Law, it must be shown that
the vessel from which the opium is landed or on which it arrived in Philippine waters
came from a foreign port. Section 4 of Act No. 2381 provides that:
Any person who shall unlawfully import or bring any prohibited drug into the Philippine
Islands, or assist in so doing, shall be punished . . . .
It is clear that a breach of this provision involves the bringing of opium into the Philippine
Islands from a foreign country. Indeed, it is a prime essential of the crime defined by that
section. Without it, no crime under that section can be established. 26
Moreover, the Black’s Law Dictionary defines importation as "the act of bringing goods
and merchandise intoa country from a foreign country." 27 As used in our tariff and
customs laws, imported articles, those which are brought into the Philippines from any
foreign country, are subject to duty upon each importation. 28 Similarly, in a statute
controlling the entry of toxic substances and hazardous and nuclear wastes, importation
was construed as the entry of products or substances into the Philippines through the
seaports or airports of entry.29 Importation then, necessarily connotes the introduction of
something into a certain territory coming from an external source. Logically, if the article
merely came from the same territory, there cannot be any importation of the same.
The CA, in finding that there was importation in the present case, stated:
The prosecution was able to prove beyond reasonable doubt that appellants were,
indeed, guilty of importing regulated drugs into the country in violation of aforesaid law.
Appellants were caught by police authorities in flagrante delictoon board a speedboat
carrying forty-five (45) plastic bags of shabu. The drugsseized were properly presented
and identified in court. Appellants’ admission that they were Chinese nationals and their
penchant for making reference during custodial investigation to China where they could
obtain money to bribe the police officers lead this Court to no other reasonable
conclusion but that China is the country of origin of the confiscated drugs. All elements of
the crime of illegal importation of regulated drugs being present in this case, conviction
thereof is in order.30
We disagree. The mere fact that the appellants were Chinese nationals as well as their
penchant for making reference to China where they could obtain money to bribe the
apprehending officers does not necessarily mean that the confiscated drugs necessarily
came from China. The records only bear the fact that the speedboat on which the
appellants were apprehended was docked on the coast of Ambil Island in the
Municipality of Looc, Occidental Mindoro. But it could have easily come from some other
locality within the country, and not necessarily from China or any foreign port, as held by
the CA. This Court notes that for a vessel which resembles a speed boat, it is rather
difficult to suppose how appellants made their way to the shores of Occidental Mindoro
from China. Moreover, an earlier intelligence report that foreign nationals on board
extraordinary types of vessels were seen along the sealine of Lubang Island in Cavite,
and Quezon Province, does not sufficiently prove the allegation that appellants herein
were, in fact, importing illegal drugs in the country from an external source. This,
notwithstanding, had the prosecution presented more concrete evidence to convince this
Court that the prohibited drugs, indeed, came from a source outside of the Philippines,
the importation contention could have been sustained. Appellants’ exoneration from
illegal importation of regulated drugs under Section 14, Article III of RA No. 6425 does
not, however, free them from all criminal liability for their possession of the same is
clearly evident.
At the outset, appellants may argue that as We have ruled in United States v.
Jose,31 possession is not necessarily included in the charge of importation and thus, they
cannot be held liable thereof, to wit:
Counsel for neither of the parties to this action have discussed the question whether, in
case the charge of illegal importation fails, the accused may still be convicted, under the
information, of the crime of illegal possession of opium. We, therefore, have not had the
aid of discussion of this proposition; but, believing that it is a question which might fairly
be raised in the event of an acquittal on the charge of illegal importation, we have taken it
up and decided it. Section 29 of the Code of Criminal Procedure provides that:
The court may find the defendant guilty of any offense, or of any frustrated or attempted
offense, the commission of which is necessarily included inthe charge in the complaint or
information.
As will be seen from this provision, to convict of an offense included in the charge in the
information it is not sufficient that the crime maybe included, but it must necessarily be
included. While, the case before us, the possession of the opium by the appellants was
proved beyond question and they might have been convicted of that offense if they have
been charged therewith, nevertheless, such possession was not an essential element of
the crime of illegal importation and was not necessarily included therein. The importation
was complete, to say the least, when the ship carrying it anchored in Subic Bay. It was
not necessary that the opium be discharged or that it be taken from the ship. It was
sufficient that the opium was brought into the waters of the Philippine Islands on a boat
destined for a Philippine port and which subsequently anchored in a port of the Philippine
Islands with intent to discharge its cargo. That being the case it is clear that possession,
either actual or constructive, is not a necessary element of the crime of illegal importation
nor is it necessarily included therein. Therefore, in acquitting the appellants of the charge
of illegal importation, we cannot legally convict them of the crime of illegal possession.32
However, in our more recent ruling in People v. Elkanish, 33 this Court held that
possession is inherent in importation. In that case, the accused, who was suspected of
being the owner of sixty-five (65) large boxes of blasting caps found aboard a ship of
American registry docked inside Philippine territory, was charged with illegal importation
of the articles under Section 2702 of the Revised Administrative Code and illegal
possession of the same articles under Section 1 of Act No. 3023, in two (2) separate
informations. Ruling that double jeopardy exists in view of the fact that possession is
necessarily included in importation, this Court affirmed the dismissal of the information
on illegal importation, in the following wise:
Section 9 of Rule 113 of the Rules of Court reads:
When a defendant shall have been convicted or acquitted, or the case against him
dismissed or otherwise terminated without the express consent of the defendant, by a
court of competent jurisdiction, upon a valid complaint or information or other formal
charge sufficient in form and substance to sustain a conviction, and after the defendant
had pleaded to the charge, the conviction or acquittal of the defendant or the dismissal of
the case shall be a bar to another prosecution for the offense charged, or for any attempt
to commit the same or frustration thereof, or for any offense which necessarily includes
or is necessarily included in the offense charged in the former complaint or information.
With reference to the importation and possession of blasting caps, it seems plain beyond
argument that the latter is inherent in the former so as to make them juridically identical.
There can hardly be importation without possession. When one brings something or
causes something to be brought into the country, he necessarily has the possession of it.
The possession ensuing from the importation may not be actual, but legal, or
constructive, but whatever its character, the importer, in our opinion, is a possessor in
the juristic sense and he is liable to criminal prosecution.If he parts with the ownership of
interest in the article before it reaches Philippine territory, he is neither an importer nor a
possessor within the legal meaning of the term, and he is not subject to prosecution for
either offense under the Philippine Laws. The owner of the merchandise at the time it
enters Philippine water is its importer and possessor. He who puts merchandise on
board a vessel and alienates the title thereto while it is in transit does not incur criminal
liability. Possession on ownership of a prohibited article on a foreign vessel on the high
seas outside the jurisdiction of the Philippines does not constitute a crime triable by the
courts of this country. (U.S. vs. Look Chaw, 18 Phil., 573).34
As We have explained in our more recent ruling above, there is double jeopardy therein
since the offense charged in the information on possession is necessarily included in the
information on importation in view of the fact that the former is inherent in the latter.
Thus, this Court sustained the dismissal of one of the two informations which charged
the accused with importation to avoid the implications of double jeopardy for possession
is necessarily included in the charge of importation.
Applying the aforequoted ruling, this Court finds that while appellants cannot be held
liable for the offense of illegal importation charged in the information, their criminal
liability for illegal possession, if proven beyond reasonable doubt, may nevertheless be
sustained. As previously mentioned, the crime of importation of regulateddrugs is
committed by importing or bringing any regulated drug into the Philippines without being
authorized by law. Indeed, when one brings something or causes something to be
brought into the country, he necessarily has possession of the same. Necessarily,
therefore, importation can never beproven without first establishing possession, affirming
the fact that possession is a condition sine qua nonfor it would rather be unjust to convict
one of illegal importation of regulated drugs when he is not proven to be in possession
thereof.
At this point, this Court notes that charging appellants with illegal possession when the
information filed against them charges the crime of importation does not violate their
constitutional right to be informed of the nature and cause of the accusation brought
against them. The rule is that when there is a variance between the offense charged in
the complaint or information, and that proved or established by the evidence, and the
offense as charged necessarily includes the offense proved, the accused shall be
convicted of the offense proved included in that which is charged. 35 An offense charged
necessarily includes thatwhich is proved, when some of the essential elements or
ingredients of the former, as this is alleged in the complaint or information, constitute the
latter.36
Indeed, We have had several occasions in the past wherein an accused, charged with
the illegal sale of dangerous drugs, was convicted of illegal possession thereof. In those
cases, this Court upheld the prevailing doctrine that the illegal sale of dangerous drugs
absorbs the illegal possession thereof except if the seller was also apprehended in the
illegal possession of another quantity of dangerous drugs not covered by or not included
in the illegal sale, and the other quantity of dangerous drugs was probably intended for
some future dealings or use by the accused. 37 Illegal possession of dangerous drugs is
therefore an element of and is necessarily included in illegal sale. Hence, convicting the
accused with the former does not violate his right to be informed of the accusation
against him for it is an element of the latter.
In a similar manner, considering that illegal possession is likewise an element of and is
necessarily included in illegal importation of dangerous drugs, convicting appellants of
the former, if duly established beyond reasonable doubt, does not amount to a violation
of their right to be informed of the nature and cause of accusation against them. Indeed,
where an accused is charged witha specific crime, he is duly informed not only of such
specific crime but also of lesser crimes or offenses included therein. 38
Thus, in view of the fact that illegal possession is an element of and is necessarily
included in the illegal importation of regulated drugs, this Court shall determine
appellants’ culpability under Section 16,39 Article III of RA No. 6425.
The elements of illegal possession of regulated drugs are as follows: (a) the accused is
in possession of an item or object which is identified to be a regulated drug; (b) such
possession isnot authorized by law; and (c) the accused freely and consciously
possessed the regulated drug.40
The evidence on record clearly established that appellants were in possession of the
bags containing the regulated drugs without the requisite authority. As mentioned
previously, on the date of appellants’ arrest, the apprehending officers were conducting a
surveillance of the coast of Ambil Island in the Municipality of Looc, Occidental Mindoro,
upon being informed by the Municipality’s Barangay Captain that a suspicious-looking
boat was within the vicinity. Not long after, they spotted two (2) boats anchored side by
side, the persons on which were transferring cargo from one to the other. Interestingly,
as they moved closer to the area, one of the boats hurriedly sped away. Upon reaching
the other boat, the police officers found the appellants with several transparent plastic
bags containing what appeared to be shabu which were plainly exposed to the view of
the officers. Clearly, appellants were found to be in possession of the subject regulated
drugs.
Moreover, this Court is not legallyprepared to accept the version of the appellants that
they had nothing todo with the incident and that they were being framed up as the drugs
seized from them were merely planted by the apprehending officers. At the outset, this
Court observes that appellants did not provide any explanation as tohow the
apprehending officers were actually able to plant forty-five (45) bags of regulated drugs
weighing about one (1) kilo each in the speed boat of appellants in the middle of the
ocean without their knowledge. Also, as the trial court noted, they did not even give any
explanation as to the purpose of their presence in the coast of Ambil, Looc, Occidental
Mindoro. More importantly, aside from saying that the confiscated bags of regulated
drugs were merely implanted in their speed boat, they did not provide the court with
sufficient evidence to substantiate their claim. In the words of the lower court:
Moreover, the story of defense witnesses Jesus Astorga, Fernando Oliva, and
Godofredo Robles that the subject shabu were taken only by the police authority from the
house of Barangay Captain Maximo Torreliza taxes only one’s credulity. Their
testimonies appear to be merely a product of an [afterthought]. They have not executed
any prior affidavit on the matters concerning their testimonies unlike the prosecution
witnesses SPO3 Yuson and SPO2 Paglicawan who executed their joint affidavit almost
immediately after their arrest. It is so apparent from the testimonies of these three (3)
above-named defense witnesses that they [did not] know anything about the case. What
is even worse is that Atty. Evasco, the former counsel of the accused, procured the
testimonies of Jesus Astorga, Fernando Oliva, and Godofredo Reyes. Clear enough their
intent or motivation is not for the truth to come out but for the monetary consideration in
exchange of their testimony.41
This Court has consistently noted that denial or frame up is a standard defense ploy in
most prosecutions for violations of the Dangerous Drugs Law. This defense has been
invariably viewed with disfavor for it can easily be concocted. In order to prosper, the
defense of denial and frame-up must be proved with strong and convincing
evidence.42 Without proof of any intent on the part of the police officers to falsely impute
to appellants the commission of a crime, the presumption of regularity in the performance
of official duty and the principle that the findings of the trial court on the credibility of
witnesses are entitled to great respect, deserve to prevail over the bare denials and self-
serving claims of frame up by appellants. 43
Going now to appellants’ arguments that their criminal liability is negated by certain
irregularities in the proceedings of this case. First and foremost, appellants allegea
violation of their constitutional rights against unreasonable searches and seizures. Due
to the absence of probable cause, their warrantless arrest and consequent search and
seizure on their persons and possession is unjustified and hence, the confiscated bags
of regulated drugs therefrom are inadmissible against them.
Section 2, Article III of the Philippine Constitution provides:
Section 2. The right of the people to be secure intheir persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to besearched and the persons or things to be seized.
A settled exception, however, to the above guaranteed right is an arrest made during the
commission of a crime, which does not require a previously issued warrant, under
Section 5(a), Rule 113 of the Revised Rules on Criminal Procedure, to wit:
Sec. 5. Arrest without warrant; when lawful. – A peace officer of a private person may,
without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
This Court has ruled that for anarrest to fall under the above exception, two (2) elements
must be present: (1) the person to be arrested must execute an overt act indicating that
he has just committed, is actually committing, or is attempting to commit a crime; and (2)
such overt act is done in the presence or within the view of the arresting officer. 44
In this case, appellants were actually committing a crime and were caught by the
apprehending officers in flagrante delicto. As previously stated, the records reveal that on
the date of their arrest, the apprehending officers, while acting upon a report from the
Barangay Captain, spotted appellants transferring cargo from one boat to another.
However, one of the boats hastily sped away when they drew closer to the appellants,
naturally arousing the suspicion of the officers. Soon after, the police officers found them
with the illegal drugs plainly exposed to the view of the officers. When they requested
appellants to show proper documentation as to their identity as well as their purpose for
being there, appellants refused to show them anything much less respond to any of their
questions. In fact, when the officers were transporting appellants and the illegal drugs to
the shore, the appellant Chi Chan Liu even repeatedly offered the arresting officers "big,
big amount of money." Hence, the circumstances prior to and surrounding the arrest of
appellants clearly show that they were arrested when they were actually committing a
crime within the view of the arresting officers, who had reasonable ground to believe that
a crime was being committed.
In addition, this Court does not find the consequent warrantless search and seizure
conducted on appellants unreasonable in view of the fact that the bags containing the
regulated drugs were in plain view of the arresting officers, one of the judicially
recognized exceptions to the requirement of obtaining a search warrant.
Under the plain view doctrine, objects falling in the "plain view" of an officer, who has a
right to be in the position to have that view, are subject to seizure and may be presented
as evidence.45 It applies when the following requisites concur: (a) the law enforcement
officer in search of the evidence has a prior justification for an intrusion or is in a position
from which he can view a particular area; (b) the discovery of the evidence in plain view
is inadvertent; and (c) it is immediately apparent to the officer that the item he observes
may be evidence of a crime, contraband, or otherwise subject to seizure. The law
enforcement officer must lawfully make an initial intrusion or properly be in a position
from which he can particularly view the area. In the course of such lawful intrusion, he
came inadvertently across a piece of evidence incriminating the accused. The object
must be open to eye and hand, and its discovery inadvertent. 46
In the case at hand, the apprehending officers were performing their duty of ascertaining
whether a criminal activity was indeed happening at the time and place reported by the
Barangay Captain. In broad daylight, appellants were seen in the act of transferring bags
of illegal drugs from one boat to another and thereafter caught in possession of the
same, which became inadvertently and immediately apparent from the point of view of
the arresting officers. It is undeniably clear, therefore, that the seizure of illegal drugs
conducted by the officers falls within the purview of the "plain view" doctrine.
Consequently, the confiscated drugs are admissible as evidence against appellants.
As to appellants’ assignment of failure on the part of the prosecution to substantiate
beyond reasonable doubt the corpus delictiof the crime charged for the chain of custody
of the illegal drugs was not sufficiently established, the same cannot be sustained as a
review of the records of the case provides otherwise. From the time of appellants’ arrest,
the seized bags of regulated drugs were properly marked and photographed. Proper
inventory was also conducted in the presence of the appellants and Mayor Telebrico,
who signed a receipt evidencing that the confiscated drugs were turned over to the PNP
Regional Headquarters.47 There, the evidence was sent to the Regional Crime Laboratory
Service Office for an examination which yielded positive results. The laboratory report,
photographs, and receipts were all made part of the records of this case. In fact, the
bags containing the crystalline substance were presented before the trial court during the
hearing held on October 12, 1999 which was identified by SPO3 Yuson, the officer who
confiscated the same. Evidently, an unbroken chain of custody of the confiscated drugs
was established by the prosecution.
Appellants also assail the legality of their detention for being formally charged in an
Information on December 8, 1998 or five (5) days after their arrest on December 3, 1998,
beyond the thirty-six (36)-hour period in Article 12548 of the Revised Penal Code. But
while the law subjects such public officers who detain persons beyond the legal period to
criminal liability, it must be remembered that the proceeding taken against the detained
persons for the act they committed remains unaffected, for the two acts are distinct and
separate.49 This Court is nevertheless mindful of the difficult circumstances faced by the
police officersin this case, such as the language barrier, the unresponsiveness of the
appellants, the fact that one of the days fell on a Sunday, as well as the disparity in the
distances between the different offices. But even assuming that the police officers
intentionally delayed the filing of the Information, appellants should havetaken steps to
report or file charges against the officers. Unfortunately, they cannot now rely on
administrative short comings ofpolice officers to get a judgment of acquittal for these do
not diminish the fact that illegal drugs were found in appellants’ possession.50
Anent appellants’ claim that their constitutional rights were further violated for during
custodial investigation, they did not have counsel of their choice nor were they provided
with one, this deserves scant consideration since the same is relevant and material only
when an extrajudicial admission or confession extracted from an accused becomes the
basis of his conviction.51 In this case, neither one of the appellants executed an
admission or confession. In fact, as the records clearly show, appellants barely even
spoke and merely kept repeating the phrase "call China, big money." The trial court
convicted them not on the basis of anything they said during custodial investigation but
on other convincing evidence such as the testimonies of the prosecution witnesses.
Verily, there was no violation of appellants’ constitutional right to counsel during custodial
investigation.
In this relation, appellants further criticize the legality of the proceedings in saying that
during their arraignment, they were not represented by a counsel of their choice but were
merely represented by a court-appointed government lawyer. Appellants assert that the
trial court likewise appointed a special interpreter, who merely understood a little Chinese
language. As such, considering the absence of any assurance that the interpreter was
able to explain to appellants the charges against them in the language they understood,
appellants therefore did not validly enter their plea.
The facts borne by the records of the case, however, militate against the contention of
the appellants. This Court does not find a violation of appellants’ right to counsel for
1âwphi1
evenin their own narration of facts, appellants stated that when they appeared without
counsel when the case was called for arraignment on January19, 1999, the trial court
gave appellants time to secure the services of counsel of their choice. It was only when
appellants again appeared without counsel on February 23, 1999 that the court
appointed a counsel from the Public Attorney’s Office. 52 It is clear, therefore, that
appellants had ample opportunity to secure the services of a counsel of their own choice.
They cannot now assign error in the proceedings conducted by the trial court for the fact
remains that they were appointed with counsel in full compliance with the law.
In much the same way, appellants had every opportunity to secure the services of a
Chinese interpreter with such competence at par with their standards. As pointed out by
the CA, the trial court gave appellants the authorization to seek, through their counsel,
the Chinese Embassy’s assistance for purposes of procuring a Chinese
interpreter.53 Appellants were even given time, through several postponements,to
properly secure the services of one. If appellants were unsatisfied with the competence
of the court-appointed interpreter, it should have taken the opportunities given by the trial
court. In this relation, the trial court’s observations are worth mentioning, to wit:
Another factor that militates against the accused is their failure to testify on their own
behalf, the defense is trying to justify for want of Chinese interpreter. The instant case
has been filed in Court since December 8, 1998 or six years more or less until now. It is
highly unbelievable that for such period oftime that this case has been pending in court,
accused could not still secure the services of a Chinese interpreter when as borne out by
the records, they were able to secure the services of several lawyers one after the other.
The accused on two (2) occasions have even submitted written requests in English
(Exhibit "N" and Exhibit "O")which were granted by the Court allowing them to call their
relatives but still they failed to secure the services of an interpreter. To the mind of the
Court, accused can also understand English as proven by their letters. x x x 54
Indeed, this Court accords the highest degree of respect to the findings of the lower court
as to appellants’ guilt of the offense charged against them, especially when such findings
are adequately supported by documentary as well as testimonial evidence. It is a settled
policy of this Court, founded on reason and experience, to sustain the findings of fact of
the trial court in criminal cases, on the rational assumption that it is in a better position to
assess the evidence before it, having had the opportunity to make an honest
determination of the witnesses’ deportment during the trial. 55
Moreover, in view of the well-entrenched rule that the findings of facts of the trial court,
as affirmed by the appellate court, are conclusive on this Court, absent any evidence that
both courts ignored, misconstrued, or misinterpreted cogent facts and circumstances of
substance which, if considered, would warrant a modification or reversal of the outcome
of the case, this Court finds no cogent reason to deviate from the above findings. 56 It is
clear, therefore, that based on the findings of the courts below, appellants were, in fact,
in possession of regulated drugs without the requisite authority.
As to the penalty imposed on appellants, Sections 16 and 17 of RA No. 7659, amending
RA No. 6425, otherwise known as the Dangerous Drugs Act of 1972, provide:
Sec. 16. Section 16 of Article III of Republic Act No. 6425, as amended, known as the
Dangerous DrugsAct of 1972, is amended to read as follows:
Section 16. Possession or Use of Regulated Drugs. - The penalty of reclusion perpetuato
death and a fine ranging from five hundred thousand pesos to ten million pesos shall be
imposed upon any person who shall possess or use any regulated drug without the
corresponding license or prescription, subject to the provisions of Section 20 hereof.
xxxx
Section 17. Section 20, Article IV of Republic Act No. 6425, as amended, known as the
Dangerous Drugs Act of 1972, is hereby amended to read as follows:
Sec. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or
Instruments of the Crime. -The penalties for offenses under Section 3, 4, 7, 8 and 9 of
Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act shall be applied if the
dangerous drugs involved is in any of the following quantities:
xxxx
3. 200 grams or more of shabu or methylamphetamine hydrochloride;
From the foregoing, considering that appellants were found to have possessed forty-five
(45) kilograms of methylamphetamine hydrochloride, which is more than the two hundred
(200) grams stipulated above, the imposable penalty is reclusion perpetua, in
accordance with R.A. No. 9346, otherwise known as "An Act Prohibiting the Imposition of
Death Penalty in the Philippines." As regards the fine, We find that the amount of One
Million Pesos (₱1,000,000.00) for each appellant imposed by the RTC is proper, in view
of the quantity seized from them. WHEREFORE, premises considered, the instant
appeal is DENIED. The Decision dated January 9, 2009 and Resolution dated April 24,
2009 of the Court of Appeals in CA-G.R. CR HC No. 00657 are AFFIRMED with
MODIFICATION that appellants herein are found GUILTY of the crime of illegal
possession of regulated drugs.
SO ORDERED.
G.R. No. 205926 July 22, 2015
ALVIN COMERCIANTE y GONZALES, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari1 are the Decision 2 dated October 20, 2011
and the Resolution 3dated February 19, 2013 of the Court of Appeals (CA) in CA-G.R.
CR No. 32813, which affirmed in toto the Judgment 4 dated July 28, 2009 of the Regional
Trial Court of Mandaluyong City, Branch 213 (RTC) in Crim. Case No. MC-03-7242-D
convicting petitioner Alvin Comerciante y Gonzales (Comerciante) of the crime of illegal
Possession of Dangerous Drugs defined and penalized under Section 11, Article II of
Republic Act No. (RA) 9165, 5 otherwise known as the Comprehensive Dangerous Drugs
Act of 2002.
The Facts
On July 31, 2003, an Information was filed before the RTC charging Comerciante of
violation of Section 11, Article II of RA 9165, to wit:
That on or about the 30th day of July 2003, in the City of Mandaluyong, Philippines, a
place within the jurisdiction of this Honorable Court, the above-named accused, not
having been lawfully authorized to possess any dangerous drugs, did then and there
willfully, unlawfully and feloniously and knowingly have in his possession, custody and
control Two (2) heat-sealed transparent plastic sachet (sic) each containing 0.15 gram
(sic) and 0.28 gram (sic) of white crystalline substance with a total of 0.43 grams which
was found positive to the test for Methamphetamine Hydrochloride commonly known as
"shabu", a dangerous drug.
CONTRARY TO LA W. 6
According to the prosecution, at around 10 o'clock in the evening of July 30, 2003, Agent
Eduardo Radan (Agent Radan) of the NARCOTICS group and P03 Bienvy Calag II (P03
Calag) were aboard a motorcycle, patrolling the area while on their way to visit a friend at
Private Road, Barangay Hulo, Mandaluyong City. Cruising at a speed of 30 kilometers
per hour along Private Road, they spotted, at a distance of about 10 meters, two (2) men
- later identified as Comerciante and a certain Erick Dasilla 7 (Dasilla) - standing and
showing "improper and unpleasant movements," with one of them handing plastic
sachets to the other. Thinking that the sachets may contain shabu, they immediately
stopped and approached Comerciante and Dasilla At a distance of around five (5)
meters, P03 Calag introduced himself as a police officer, arrested Comerciante and
Dasilla, and confiscated two (2) plastic sachets containing white crystalline substance
from them. A laboratory examination later confirmed that said sachets contained
methamphetamine hydrochloride or shabu. 8
After the prosecution rested its case, Dasilla filed a demurrer to evidence, which was
granted by the RTC, thus his acquittal. However, due to Comerciante's failure to file his
own demurrer to evidence, the RTC considered his right to do so waived and ordered
him to present his evidence.9
In his defense, Comerciante averred that P03 Calag was looking for a certain "Barok",
who was a notorious drug pusher in the area, when suddenly, he and Dasilla, who were
just standing in front of a jeepney along Private Road, were arrested and taken to a
police station. There, the police officers claimed to have confiscated illegal drugs from
them and were asked money in exchange for their release. When they failed to accede
to the demand, they were brought to another police station to undergo inquest
proceedings, and thereafter, were charged with illegal possession of dangerous drugs. 10
The RTC Ruling
In. a Judgment 11 dated July 28, 2009, the RTC found Comerciante guilty beyond
reasonable doubt of violation of Section 11, Article II of RA 9165, and accordingly,
sentenced him to suffer the penalty of imprisonment for twelve (12) years and one (1)
day to twenty (20) years, and ordered him to pay a fine in the amount of ₱300,000.00. 12
The R TC found that P03 Calag conducted a valid warrantless arrest on Comerciante,
which yielded two (2) plastic sachets containing shabu. In this relation, the R TC opined
that there was probable cause to justify the warrantless arrest, considering that P03
Calag saw, in plain view, that Comerciante was carrying the said sachets when he
decided to approach and apprehend the latter. Further, the RTC found that absent any
proof of intent that P03 Calag was impelled by any malicious motive, he must be
presumed to have properly performed his duty when he arrested Comerciante. 13
Aggrieved, Comerciante appealed to the CA.
The CA Ruling
In a Decision 14 dated October 20, 2011 the CA affirmed Comerciante's conviction. It held
that P03 Calag had probable cause to effect the warrantless arrest of Comerciante, given
that the latter was committing a crime in flagrante delicto; and that he personally saw the
latter exchanging plastic sachets with Dasilla. According to the CA, this was enough to
draw a reasonable suspicion that those sachets might be shabu, and thus, P03 Calag
had every reason to inquire on the matter right then and there. 15
Dissatisfied, Comerciante moved for reconsideration 16 which was, however, denied in a
Resolution 17 dated February 19, 2013. Hence, this petition. 18
The Issue before the Court
The core issue for the Court's resolution is whether or not the CA correctly affirmed
Comerciante's conviction for violation of Section 11, Article II of RA 9165.
In his petition, Comerciante essentially contends that P03 Carag did not effect a valid
warrantless arrest on him. Consequently, the evidence gathered as a result of such
illegal warrantless arrest, i.e., the plastic sachets containing shabu should be rendered
inadmissible, necessarily resulting in his acquittal. 19
On the other hand, the Office of the Solicitor General, on behalf of respondent People of
the Philippines, maintains that Comerciante's warrantless arrest was validly made
pursuant to the "stop and frisk" rule, especially considering that he was caught in
flagrante delicto in possession of illegal drugs. 20
The Court's Ruling
The petition is meritorious.
Section 2, Article III 21 of the Constitution mandates that a search and seizure must be
carried out through or on the strength of a judicial warrant predicated upon the existence
of probable cause; in the absence of such warrant, such search and seizure becomes,
as a general rule, "unreasonable" within the meaning of said constitutional provision. To
protect people from unreasonable searches and seizures, Section 3 (2), Article III 22 of
the Constitution provides an exclusionary rule which instructs that evidence obtained and
confiscated on the occasion of such unreasonable searches and seizures are deemed
tainted and should be excluded for being the proverbial fruit of a poisonous tree. In other
words, evidence obtained from unreasonable searches and seizures shall be
inadmissible in evidence for any purpose in any proceeding. 23
The exclusionary rule is not, however, an absolute and rigid proscription. One of the
recognized exceptions established by jurisprudence is a search incident to a lawful
arrest. 24 In this instance, the law requires that there first be a lawful arrest before a
search can be made - the process cannot be reversed. 25 Section 5, Rule 113 of the
Revised Rules on Criminal Procedure lays down the rules on lawful warrantless arrests,
as follows:
SEC.5. Arrest without warrant; when lawful. - A peace officer or a private person may,
without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts or circumstances that the person
to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily
confined while his case is pending, or has escaped while being transferred from
one confinement to another.
In cases falling under paragraphs (a) and (b) above, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail and shall be
proceeded against in accordance with Section 7 of Rule 112.
The aforementioned provision provides three (3) instances when a warrantless arrest
may be lawfully effected: (a) arrest of a suspect in flagrante delicto; (b) arrest of a
suspect where, based on personal knowledge of the arresting officer, there is probable
cause that said suspect was the perpetrator of a crime which had just been committed; (
c) arrest of a prisoner who has escaped from custody serving final judgment or
temporarily confined during the pendency of his case or has escaped while being
transferred from one confinement to another. 26
For a warrantless arrest under Section 5 (a) to operate, two (2) elements must concur, xxxx
namely: (a) the person to be arrested must execute an overt act indicating that he has
just committed, is actually committing, or is attempting to commit a crime; and ( b) such Q: Now how far were you when you saw this incident from these two male persons you
overt act is done in the presence or within the view of the arresting officer. 27 On the other already identified?
hand, Section 5 (b) requires for its application that at the time of the arrest, an offense
had in fact just been committed and the arresting officer had personal knowledge of facts A: About ten (10) meters away ma'am.
indicating that the accused had committed it. 28
Q: What were their positions in relation to you when you saw them in that particular act?
In both instances, the officer's personal knowledge of the fact of the commission of an
offense is absolutely required. Under Section 5 (a), the officer himself witnesses the
A: They were quite facing me then.
crime; while in Section (b), he knows for a fact that a crime has just been committed. 29
0: What was the speed of your motorcycle when you were traversing this Private Road,
A judicious review of the factual milieu of the instant case reveals that there could have
Hulo, Mandaluyong City?
been no lawful warrantless arrest made on Comerciante. P03 Calag himself admitted
that he was aboard a motorcycle cruising at a speed of around 30 kilometers per hour
when he saw Comerciante and Dasilla standing around and showing "improper and A: About thirty (30) kilometers per hour, ma'am.
unpleasant movements," with one of them handing plastic sachets to the other. On the
basis of the foregoing, he decided to effect an arrest. P03 Calag's testimony on direct Q: And who was driving the motorcycle?
examination is revelatory:
A: Eduardo Radan, ma'am.
Pros. Silao:
Q: When you spotted them as if handing something to each other, what did you do?
Q: Now on July 30, 2003 around 10:00 o'clock in the evening, kindly tell the court where
were you? A: We stopped ma'am.

A: We were then conducting our patrol on a motorbike ma' am. Q: And how far were you from them when you stopped, more or less?

xxxx A: We passed by them for a short distance before we stopped ma'am.

Q: And who were with you while you were patrolling? Q: And after you passed by them and you said you stopped, what was the reaction of
these two male persons?
A: Eduardo Radan, Ma' am.
A: They were surprised, ma'am.
Q: And who is this Eduardo Radan?
xxxx
A: He is an agent of the Narcotics Group, ma'am.
Q: And what was their reaction when you said you introduced yourself as police officer?
Q: While you were along Private Road, Hulo, Mandaluyong City, what unusual incident
that happened if any? A: They were surprised.

A: We spotted somebody who was then as if handing a plastic sachet to someone. Q: When you say "nabigla" what was their reaction that made you say that they were
surprised?
A: They were stunned.
Q: After they were stunned, what did you do next, police officer?
A: I arrested them, ma' am. I invited them.
Q: What did you say to them? How did you invite them? In short, napakasimple Lang ng
tanong ko sa yo eh. Did you say anything?
Court:
Mr. Witness, stop making unnecessary movements, just listens.
Pros. Silao: Are you fit to testify? May sakit ka ba o wala? Witness: Wala po.
Pros. Silao: Eh, bakit di ka makapagsalita?
Court: You keep touching your eyes. Just relax. Answer the question, ano sinabi mo sa
kanila?
Pros. Silao: Are you fit to testify? Wala ka bang sakit?
Witness: Wala po.
xxxx
Q: From what portion of his body, I am referring to Alvin Comerciante did you recover the
plastic sachet?
A: From his hand ma'am.
Q: Left or right hand?
Pros. Silao: You cannot recall? Hindi mo matandaan. Sabihin mo Kung Hindi mo
matandaan, no problem. Kaliwa, kanan or you cannot recall? 30
(Emphases and underscoring supplied)
On the basis of such testimony, the Court finds it highly implausible that P03 Calag, even
assuming that he has perfect vision, would be able to identify with reasonable accuracy -
especially from a distance of around 10 meters, and while aboard a motorcycle cruising
at a speed of 30 kilometers per hour - miniscule amounts of white crystalline substance
inside two (2) very small plastic sachets held by Comerciante. The Court also notes that
no other overt act could be properly attributed to Comerciante as to rouse suspicion in
the mind of P03 Calag that the former had just committed, was committing, or was about
to commit a crime. Verily, the acts of standing around with a companion and handing
over something to the latter cannot in any way be considered criminal acts. In fact, even
if Comerciante and his companion were showing "improper and unpleasant movements"
as put by P03 Calag, the same would not have been sufficient in order to effect a lawful
warrantless arrest under Section 5 (a), Rule 113 of the Revised Rules on Criminal
Procedure. 31 That his reasonable suspicion bolstered by (a) the fact that he had seen his
fellow officers arrest persons in possession of shabu; and (b) his trainings and seminars
on illegal drugs when he was still assigned in the province are insufficient to create a
conclusion that what he purportedly saw in Comerciante was indeed shabu. 32
Neither has the prosecution established that the rigorous conditions set forth in Section 5
(b), Rule 113, have been complied with, i.e., that an offense had in fact just been
committed and the arresting officer had personal knowledge of facts indicating that the
accused had committed it. As already discussed, the factual backdrop of the instant case
failed to show that P03 Calag had personal knowledge that a crime had been
indisputably committed by Comerciante. Verily, it is not enough that the arresting officer
had reasonable ground to believe that the accused had just committed a crime; a crime
must, in fact, have been committed first, which does not obtain in this case. 33
In this relation, the Court finds respondent's assertion that there was a valid "stop and
frisk" search made on Comerciante untenable. In People v. Cogaed, 34 the Court had an
opportunity to exhaustively explain "stop and frisk" searches:
"Stop and frisk" searches (sometimes referred to as Terry searches) are necessary for
law enforcement. That is, law enforcers should be given the legal arsenal to prevent the
1a\^/phi1
commission of offenses. However, this should be balanced with the need to protect the
privacy of citizens in accordance with Article III, Section 2 of the Constitution.
The balance lies in the concept of "suspiciousness" present where the police officer finds
himself or herself in. This may be undoubtedly based on the experience of the police
officer. Experienced police officers have personal experience dealing with criminals and
criminal behavior. Hence, they should have the ability to discern - based on facts that
they themselves observe - whether an individual is acting in a suspicious manner.
Clearly, a basic criterion would be that the police officer, with his or her personal
knowledge, must observe the facts leading to the suspicion of an illicit act.
xxxx
Normally, "stop and frisk" searches do not give the law enforcer an opportunity to confer
with a judge to determine probable cause. In Posadas v. Court of Appeals, one of the
earliest cases adopting the "stop and frisk" doctrine in Philippine jurisprudence, this court
approximated the suspicious circumstances as probable cause:
The probable cause is that when the petitioner acted suspiciously and attempted to flee
with the buri bag there was a probable cause that he was concealing something illegal in
the bag and it was the right and duty of the police officers to inspect the same.
WHEREFORE, the petition is GRANTED. Accordingly, 'the Decision dated October 20,
2011 and the Resolution dated February 19, 2013 of the Court of Appeals in CA-G.R. CR
No. 32813 are hereby REVERSED and SET ASIDE. Accordingly, petitioner Alvin
Comerciante y Gonzales is hereby ACQUITTED of the crime of violating Section 11,
Article II of Republic Act No. 9165. The Director of the Bureau of Corrections is ordered
to cause his immediate release, unless he is being lawfully held for any other reason.

For warrantless searches, probable cause was defined as "a reasonable ground of SO ORDERED.
suspicion supported by circumstances sufficiently strong in themselves to warrant a
cautious man to believe that the person accused is guilty of the offense with which he is
charged.

Malacat v. Court of Appeals clarifies the requirement further. It does not have to be
probable cause, but it cannot be mere suspicion. It has to be a genuine reason to serve G.R. No. 199042 November 17, 2014
the purposes of the "stop and frisk" exception:
DANILO VILLANUEVA y ALCARAZ, Petitioner,
Other notable points of Terry are that while probable cause is not required to conduct a vs.
"stop and frisk," it nevertheless holds that mere suspicion or a hunch will not validate a PEOPLE OF THE PHILIPPINES, Respondent.
"stop and frisk." A genuine reason must exist, in light of the police officer's experience
and surrounding conditions, to warrant the belief that the person detained has weapons DECISION
concealed about him.
SERENO, CJ:
In his dissent for Esquillo v. People, Justice Bersamin reminds us that police officers
must not rely on a single suspicious circumstance. There should be "presence of more We resolve the Petition1 filed by Danilo Villanueva y Alcaraz from the Decision2 dated 4
than one seemingly innocent activity, which, taken together, warranted a reasonable May 2011 and Resolution3 dated 18 October 2011 issued by the Fourteenth Division of
inference of criminal activity." The Constitution prohibits "umeasonable searches and the Court of Appeals (CA) in CA-G.R. C.R. No. 32582.
seizures." Certainly, reliance on only one suspicious circumstance or none at all will not
result in a reasonable search. [35]] (Emphases and underscoring supplied)
THE ANTECEDENT FACTS
In this case, the Court reiterates that Comerciante' s acts of standing around with a
Petitioner Danilo Villanueva was charged with violation of Section 11, Article II of
companion and handing over something to the latter do not constitute criminal
Republic Act (R.A.) No. 9165 or The Comprehensive Dangerous Drugs Act of 2002. The
acts. These circumstances are not enough to create a reasonable inference of criminal
Information4 reads:
1âwphi1

activity which would constitute a "genuine reason" for P03 Calag to conduct a "stop and
frisk" search on the former. In this light, the "stop and frisk" search made on Comerciante
should be deemed unlawful. That on or about the 15th day of June 2004 in Caloocan City, Metro Manila, and within
the jurisdiction of this Honorable Court, the above named accused, without being
authorized by law, did then and there, willfully, unlawfully and feloniously have in his
In sum, there was neither a valid warrantless arrest nor a valid "stop and frisk" search
possession, custody and control METHAMPHETAMINE HYDROCHLORIDE (Shabu)
made on Comerciante. As such, the shabu purportedly seized from him is rendered
weighing 0.63 gram knowing the same to [be a] dangerous drug under the provisions of
inadmissible in evidence for being the proverbial fruit of the poisonous tree. Since the
the above-cited law.
confiscated shabu is the very corpus delicti of the crime charged, Comerciante must
necessarily be acquitted and exonerated from all criminal liability.
CONTRARY TO LAW.
On 15 July 2004, the accused, duly assisted by counsel de oficio, pleaded not guilty to
the offense charged.5
PROSECUTION’S VERSION
Four witnesses testified for the prosecution: (1) Police Senior Inspector (PSI) Albert
Arturo, (2) Police Officer (PO) 3 Jonathan Coralde, (3) PO2 Reynante Mananghaya, and
(4) Senior Police Officer 1 (SPO1) Antonio Asiones.6 Their testimonies reveal that a
Complaint was filed by Brian Resco against Danilo Villanueva for allegedly shooting the
former along C-3 Road, Navotas City. After recording the incident in the police blotter,
PO3 Jonathan Coralde, SPO3 Enrique de Jesus, SPO2 Henry Martin and SPO1
Anthony Asiones, together with Resco, proceeded to the house of Villanueva. They
informed Villanueva about the Complaint lodged against him. They invited him to the
police station. There, he was subjected to a body search and, in the process, a plastic
sachet of shabu was recovered from the left pocket of his pants. PO3 Coralde marked
the sachet with the initial "DAV 06-15-04", and PO2 Reynante Mananghaya brought it to
the National Police District Scene of the Crime Operatives (NPD-SOCO) for
examination.7 DEFENSE’S VERSION
The accused testified that at the time of the incident, he was at home watching TV when
PO3 Coralde, along with three others, invited him to go with them to the police station.
Informed that he had been identified as responsible for shooting Resco, the accused was
then frisked and detained at the police station. 8
RULING OF THE RTC
The Regional Trial Court (RTC) Branch 127 of Caloocan City, in its Decision9 dated 6
April 2009, convicted petitioner of the offense charged. The dispositive portion of the
Decision reads:
WHEREFORE, premises considered, judgment is hereby rendered declaring accused
DANILO VILLANUEVA y ALCARAZ, GUILTY BEYOND REASONABLE DOUBT of the
offense of Violation of Section 11, Article II,R.A. 9165. Henceforth, this Court hereby
sentences him to suffer an imprisonment of twelve (12) years and one (1) day as the
minimum to seventeen (17) years and eight (8) months as the maximum and to pay the
fine of Three Hundred Thousand Pesos (₱300,000.00).
The drugs subject matter of this case is ordered confiscated and forfeited in favor of the
government to be dealt with in accordance with the law.
SO ORDERED.10
The CA reviewed the appeal, which hinged on one issue, viz:
THE COURT A QUOGRAVELY ERRED IN NOT FINDING AS ILLEGAL THE
ACCUSED-APPELLANT’S WARRANTLESS ARREST AND SEARCH.11
RULING OF THE CA
On 4 May 2011, the CA affirmed the ruling of the lower court:
WHEREFORE, the appealed Decision dated April 6, 2009 of the Regional Trial Court,
Branch 127, Caloocan City in Criminal Case No. 70854 finding the accused-appellant
guilty beyond reasonable doubt is hereby AFFIRMED.
SO ORDERED.12
On 27 May 2011, petitioner filed a Motion for Reconsideration, 13 which the CA denied in a
Resolution14 dated 18 October 2011.
Hence, the instant Petition, which revolves around the following lone issue:
WHETHER THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE
PETITIONER’S CONVICTION FOR VIOLATION OF SECTION 11 OF REPUBLIC ACT
NO. 9165 DESPITE THE ILLEGALITY OF THE ARREST AND THE LAPSES ON THE
PART OF THE POLICE OFFICERS IN THE HANDLING OF THE CONFISCATED
DRUG.15
Petitioner claims that his arrest does not fall within the purview of valid warrantless
arrests, since it took place on the day of the alleged shooting incident. Hence, to "invite"
him to the precinct without any warrant of arrest was illegal. The evidence obtained is,
consequently, inadmissible. The Office of the Solicitor General filed its Comment 16 stating
that the shabu confiscated from petitioner was admissible in evidence against him; that
the search conducted on him was valid; and that he cannot raise the issue regarding the
apprehending officers’ non-compliance with Section 21, Article II of R.A. 9165 for the first
time on appeal.
OUR RULING
We find the instant appeal meritorious.
Accused-appellant is estopped from questioning the legality of his arrest.
Accused-appellant was arrested without a warrant. Section 5, Rule 113 of the Revised
Rules of Criminal Procedure, lays down the basic rules on lawful warrantless arrests
either by a peace officer or a private person, as follows:
Sec. 5. Arrest without warrant; when lawful. – A peace officer or a private person may,
without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts or circumstances that the person
to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily
confined while his case is pending, or has escaped while being transferred from
one confinement to another.
The circumstances that transpired between accused-appellant and the arresting officer
show none of the above that would make the warrantless arrest lawful. Nevertheless,
records reveal that accused-appellant never objected to the irregularity of his arrest
before his arraignment. He pleaded not guilty upon arraignment. He actively participated
in the trial of the case. Thus, he is considered as one who had properly and voluntarily
submitted himself to the jurisdiction of the trial court and waived his right to question the
validity of his arrest.17
The warrantless search conducted is not among those allowed by law.
A waiver of an illegal arrest, however, is not a waiver of an illegal search.18 Records have
established that both the arrest and the search were made without a warrant. While the
accused has already waived his right to contest the legality of his arrest, he is not
deemed to have equally waived his right to contest the legality of the search.
Jurisprudence is replete with pronouncements on when a warrantless search can be
conducted. These searches include: (1) search of a moving vehicle; (2) seizure in plain
1âwphi1
view; (3) customs search; (4) waiver or consented search; (5) stop-and-frisk situation; (6)
search incidental to a lawful arrest and (7) exigent and emergency circumstance. 19
The search made was not among the enumerated instances. Certainly, it was not of a
moving vehicle, a customs search, or a search incidental to a lawful arrest. There could
not have been a seizure in plain view as the seized item was allegedly found inside the
left pocket of accused-appellant’s pants. Neither was it a stop-and-frisk situation. While
thistype may seemingly fall under the consented search exception, we reiterate that
"[c]onsent to a search is not to be lightly inferred, but shown by clear and convincing
evidence."20
Consent must also be voluntary inorder to validate an otherwise illegal search; that is,
the consent mustbe unequivocal, specific, intelligently given, and uncontaminated by any
duress or coercion.21 In this case, petitioner was merely "ordered" to take out the
contents of his pocket. The testimony of the police officer on the matter is clear:
Q: And what did you do when you frisked a small plastic sachet?
A: When I felt something inside his pocket, I ordered him to bring out the thing which I
felt.
Q. : And what did Danilo Villanueva do when you instructed him to bring out the contents
of his pocket?
A: He took out the contents of his pocket and I saw the plastic containing shabu. 22
The evidence obtained is not admissible.
Having been obtained through an unlawful search, the seized item is thus inadmissible in
evidence against accused-appellant. Obviously, this is an instance of seizure of the "fruit
of the poisonous tree." Hence, the confiscated item is inadmissible in evidence
consonant with Article III, Section 3(2) of the 1987 Constitution: "Any evidence obtained
in violation of this or the preceding section shall be inadmissible for any purpose in any
proceeding."23 Without the seized item, therefore, the conviction of accused appellant
cannot be sustained. This being the case, we see no more reason to discuss the alleged
lapses of the officers in the handling of the confiscated drug.
As a final word, we reiterate that "[ w ]hile this Court appreciates and encourages the
efforts of law enforcers to uphold the law and to preserve the peace and security of
society, we nevertheless admonish them to act with · deliberate care and within the
parameters set by the Constitution and the law. Truly, the end never justifies the
means."24
WHEREFORE, premises considered, the assailed Decision dated 4 May 2011 and
Resolution dated 18 October 2011 issued by the Fourteenth Division of the Court of
Appeals in CA-G.R. C.R. No. 32582 are SET ASIDE. Petitioner is hereby ACQUITTED.
SO ORDERED.
G.R. No. 209137 July 1, 2015 (1) one calculator Php1,500.00

EDUARDO CELEDONIO, Petitioner, (1) one discman Sony Php3,000.00

vs.
PEOPLE OF THE PHILIPPINES, Respondent. (2) two pcs. 100.00 US dollar bills

DECISION (22) twenty two pcs. Php500.00 bills

MENDOZA, J.: (2) two necklace 18K worth Php30,000.00

This petition for review on certiorari under Rule 45 of the Rules of Court filed by Eduardo (2) two bracelet worth Php11,500.00
Celedonio (Celedonio) assails the April 8, 2013 Decision1 and the September 17, 2013
Resolution2 of the Court of Appeals (CA), in CA-G.R. CR No. 34472, affirming the August (2) two gold ring worth Php8,000.00
18, 2011 Decision3 of the Regional Trial Court, Branch 73, Malabon City (RTC), in
Criminal Case No. 35668-MN.
(1) one wedding ring worth 14K worth Php1,500.00
The Information,4 dated April 25, 2007, charged Celedonio with the crime of Robbery with
(1) one wrist watch swiss military worth Php10,000.00
Force Upon Things, the accusatory portion of which reads:
(1) one cellphone NOKIA 8250 worth Php3,000.00
That on or about the 22nd day of April 2007, in the Municipality of Navotas, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, with intent to gain and by means of force upon things, and without the consent (3) three pairs of earrings worth Php15,000.00
of the owner, did then and there, wilfully, unlawfully and feloniously enter the house of
the herein complainant by destroying the backdoor of said house, and once inside, take, (3) three pcs. of 100.00 US dollars worth Php15,000.00
rob and carry away the following:
(60) sixty pcs. of Php50.00 bills worth Php3,000.00
(1) one gold bracelet 24K Php8,000.00
(100) one hundred pcs. of Php20.00 bills worth Php2,000.00
(3) necklace (1) one 24K and (2) two 18K Php42,000.00
(15) fifteen pcs. of Php100.00 bills worth Php1,500.00 owned and belonging to
(2) two digicam Sony player Php22,000.00 CARMENCITA DE GUZMAN y SERRANO, to the damage and prejudice of the
herein complainant, in the aforementioned amount of Php223,000.00.
(1) one DVD portable Php5,000.00
Contrary to law.5
(1) one wrist watch Tagheur Php30,000.00
Version of the Prosecution
(1) one sun glass Guess Php5,000.00
The evidence for the prosecution shows that on the evening of April 21, 2007, a certain
(1) one camera Canon Php2,500.00 Adriano Marquez (Marquez)witnessed the robbery perpetrated in the house of
Carmencita De Guzman (De Guzman)while she was away to attend to the wake of her
deceased husband. No one was left in the house. Marquez, whose house was opposite
(1) one Gameboy advance Php5,000.00
the house of De Guzman and Celedonio, which were adjacent to each other, identified
Celedonio as the culprit. Upon learning of the incident, De Guzman reported it to the
police and requested that Celedonio be investigated for possibly having committed the
crime, based on the account of Marquez.
Later, a follow-up operation was conducted by PO1 Rommel Roque (PO1 Roque)and
SPO2 Adrian Sugui (SPO2 Sugui), accompanied by Marquez. They proceeded to Raja
Humabon St., Navotas, to survey the area for the possible identification and
apprehension of the suspect. On their way, Marquez pointed to a man on a motorcycle
and said, "Sir, siya po si Eduardo Celedonio." The police immediately flagged down
Celedonio. PO1 Roque asked him if he was Eduardo Celedonio, but he did not reply and
just bowed his head.
SPO2 Sugui informed Celedonio of a complaint for robbery against him. Celedonio still
remained silent and just bowed his head. SPO2 Sugui asked him, "Where [were] the
stolen items?" Celedonio then alighted from his motorcycle and opened its compartment
where PO1 Roque saw some of the stolen items, as per report of the incident, such as
the portable DVD player and a wristwatch, among others.6
PO1 Roque asked Celedonio if the same were stolen, to which the latter answered, "Iyan
po."7 Thus, Celedonio was arrested and was informed of his constitutional rights. More
itemswere seized from Celedonio at the police station.
Version of the Accused
After the prosecution rested its case, Celedonio filed his Demurrer to Evidence (with
leave of court) citing as his ground the alleged illegality of his arrest and the illegal
search on his motorcycle. The RTC denied the demurrer, stating that the question of the
legality of Celedonio’s arrest had been mooted by his arraignment and his active
participation in the trial of the case. It considered the seizure of the stolen items as legal
not only because of Celedonio’s apparent consent to it, but also because the subject
items were in a moving vehicle.8
In his defense, Celedonio claimed that he was at home with his wife, sleeping, at the
time of the incident. His wife corroborated his statement.
In its Decision, dated August 18,2011, the RTC found Celedonio guilty beyond
reasonable doubt of the crime of Robbery with Force Upon Things. The dispositive
portion of the RTC decision9 reads:
WHEREFORE, finding the accused EDUARDO CELEDONIO y MONIS GUILTY beyond
reasonable doubt for the offense of Robbery with Force Upon Things as defined and
penalized under Article 299 (a)2 of the Revised Penal Code, he is therefore sentenced to
an indeterminate penalty of 4 years and 2 months of prision correccional as minimum to
8 years and 1 day of prision mayor as maximum. He is also ordered to pay private
complainant the amount of Php105,000.00 which is the worth of what has not been
recovered from the loss she suffered by reason of the robbery.
SO ORDERED.10
The trial court was convinced that the prosecution clearly established that: 1) a robbery
had been committed; 2) it was committed recently; 3) several of the stolen items
including cash were found in Celedonio’s possession; and 4) Celedonio had no valid
explanation for his possession of the stolen goods.11
Insisting on his innocence, Celedonio appealed to the Court of Appeals (CA), arguing
that the RTC erred: 1) in convicting him of the crime despite the insufficiency of the
circumstantial evidence; 2) in not finding that the search was illegal, rendering the
articles recovered inadmissible; and 3) in not finding that the prosecution witness
Marquez was ill-motivated in testifying against him.12
The CA, however, affirmed the RTC in toto. It found that the totality of circumstances
warranted the finding that Celedonio was solely and directly responsible for the crime. 13
In addition, the CA brushed aside Celedonio’s argument that he was illegally arrested
and that the items seized should be excluded as evidence. It stressed that Celedonio
was not arrested when he voluntarily opened the compartment of his motorcycle. He was
only brought to the police for investigation after some of the stolen items were found in
his motorcycle compartment.14 Further, Celedonio’s failure to raise the issue before his
arraignment constituted a waiver on his part to question the legality of his arrest. 15
Celedonio moved for reconsideration, but his motion was denied.
Hence, the present petition.
ISSUES
I
WHETHER THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
AFFIRMING THE TRIAL COURT’S RULING THAT THE PETITIONER’S GUILT WAS
PROVEN BASED ON CIRCUMSTANTIAL EVIDENCE.
II
WHETHER THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN NOT
FINDING THAT THE SEARCH CONDUCTED ON THE PETITIONER WAS ILLEGAL,
RENDERING THE ARTICLES RECOVERED INADMISSIBLE.
III
WHETHER THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN NOT
FINDING THAT THE PROSECUTION WITNESS ADRIANO MARQUEZ WAS ILL-
MOTIVATED IN TESTIFYING AGAINST THE PETITIONER.
The petition lacks merit.
Jurisprudence tells us that direct evidence of the crime is not the only matrix from which
a trial court may draw its conclusion and finding of guilt. The rules on evidence allow a
trial court to rely on circumstantial evidence to support its conclusion of guilt. The lack of
direct evidence does not ipso facto bar the finding of guilt against the appellant. As long
as the prosecution establishes the accused-appellant’s participation in the crime through
credible and sufficient circumstantial evidence that leads to the inescapable conclusion
that he committed the imputed crime, the latter should be convicted. 16
Circumstantial evidence is sufficient for conviction if: 1) there is more than one
circumstance; 2) the facts from which the inferences are derived are proven; and 3) the
combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt.17
In this case, the prosecution sufficiently laid down the circumstances that, when taken
together, constituted an unbroken chain that led to a reasonable conclusion that
Celedonio was the perpetrator. The CA opined that:
xxx As correctly pointed out by the trial court, these circumstances are: accused was a
next door neighbor of private complainant; he was seen by another neighbor going over
the concrete fence separating their houses and ransacking a room in complainant’s
house; during the time, no one was inside complainant’s house as all of them were at the
wake of private complainant’s recently demised husband; two (2) days after, most of the
items discovered to have been stolen that night were found in the compartment of the
accused’s motorcycle which he was riding on when accosted by the police; the items
recovered from him were identified by the complainant as her stolen property; during the
trial accused denied that the stolen items were found in his possession and claimed that
they were "planted" by the police investigators to frame him up of the robbery. In short,
the accused could not explain his possession of the recently stolen items found in his
sole possession.
xxxx
We find the conviction of accused-appellant based on circumstantial evidence factually
and legally tenable, as the facts from which the aforementioned circumstances arose
have been proved through the positive testimony of Adriano Marquez, PO1 Rommel
Roque and Carmencita de Guzman.18
The defense does not refute the existence of the commission of robbery. In fact,
Celedionio himself acknowledged that the prosecution’s circumstantial evidence,
although weak, ambiguous and inconclusive, established that 1) a robbery had been
committed; 2) it was committed recently; 3) several of the stolen items including cash
were found in his possession; and 4) he had no valid explanation for his possession of
the stolen goods.19 Celedonio, however, still insisted that he cannot be convicted of the
crime of robbery because 1) he was not caught in exclusive possession of the stolen
items; 2) the search conducted on him was illegal thereby rendering the seized articles
inadmissible; and 3) the witness Marquez was ill-motivated in testifying against him.
These arguments, however, do not hold water.
First, Celedonio was, in fact, caught in exclusive possession of some of the stolen items
when the police officers flagged down his motorcycle during their follow-up operation. He
failed to give a reasonable explanation as to his possession of the said items. Section
3(j), Rule 131 of the Revised Rules of Court provides that a person found in possession
of a thing taken in the doing of a recent wrongful act is the taker and the doer of the
whole act; otherwise, that thing which a person possesses, or exercises acts of
ownership over, is owned by him.
Celedonio never claimed ownership of the subject items. When the alleged stolen items
were found in his motorcycle compartment which he had control over, the disputable
presumption of being the taker of the stolen items arose. He could have overcome the
presumption, but he failed to give a justifiable and logical explanation. Thus, the only
plausible scenario that could be inferred therefrom was that he took the items.
Second, no illegal search was made upon Celedonio. When the police officers asked
where the stolen items were, they merely made a general inquiry, and not a search, as
part of their follow-up operation. Records did not show that the police officers even had
the slightest hint that the stolen items were in Celedonio’s motorcycle compartment.
Neither was there any showing that the police officers frisked Celedonio or rummaged
over his motorcycle. There was no showing either of any force or intimidation on the part
of the police officers when they made the inquiry. Celedonio himself voluntarily opened
his motorcycle compartment. Worse, when he was asked if the items were the stolen
ones, he actually confirmed it.20 The police officers, therefore, were left without any
recourse but to take him into custody for further investigation. At that instance, the police
officers had probable cause that he could be the culprit of the robbery. He did not have
any explanation as to how he got hold of the items. Moreover, taking into consideration
that the stolen items were in a moving vehicle, the police had to immediately act on it.
Third, contrary to Celedonio’s argument, Marquez was a credible witness. Jurisprudence
also tells us that where there is no evidence that the witnesses of the prosecution were
actuated by ill motive, it is presumed that they were not so actuated and their testimony
is entitled to full faith and credit. 21
In this case, if only to discredit Marquez, Celedonio claimed that they once had a fight
over a water meter. As correctly observed by the CA, however, such allegation was too
insignificant that it could not destroy whatever credibility Marquez possessed as a
witness. The CA, thus, posited:
xxx It is true that under the Rules of Court, a witness may be impeached by evidence
that his general reputation for truth, honesty or integrity is bad. However, a witness
1âwphi1
cannot be impeached by evidence of particular wrongful acts, unless there is a showing
of previous conviction by final judgment such that not even the existence of pending
information maybe shown to impeach him.
More so, in this case, wherein no information was filed against the witness, but only the
mere say so of the accused on Marquez' alleged involvement in a quarrel with him over a
water meter. Furthermore, no testimony was presented to show that the reputation of
Marquez for truth, honesty or integrity is bad; no evil motive has been established
against prosecution witness Marquez that might prompt him to testify falsely against
accused-appellant Celedonio.22
Alibi and denial were the only defenses of Celedonio. Unless he can strongly support his
claims that the items were "planted" and that it was physically impossible for him to be in
De Guzman's house other than the mere averment that he was asleep at the time, his
defenses cannot prevail over the strong circumstantial evidence. 23
Having established the sufficiency of the prosecution's evidence, the CA did not commit
any reversible error in upholding the RTC. In the absence of any indication that the R TC
and the CA overlooked facts or circumstances that would result in a different ruling in this
case, the Court will not disturb their factual findings.24
WHEREFORE, the petition is DENIED.
SO ORDERED.
G.R. No. 202692 November 12, 2014
EDMUND SYDECO y SIONZON, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
VELASCO, JR., J.:
Assailed and sought to be set aside in this petition for review under Rule 45 are the
December 28, 2011 Decision1 and July 18, 2012 Resolution2 of the Court of Appeals (CA)
in CA-G.R. CR No. 33567. The assailed issuances affirmed the decision3 of the Regional
Trial Court (RTC) of Manila, Branch 12, in Criminal Case Nos. 09-270107-08 which, in
turn, affirmed that of the Metropolitan Trial Court (MeTC) in Manila adjudging petitioner
Edmund Sydeco (Sydeco) guilty of drunk driving and resisting arrest.4
The factual backdrop:
On July 20, 2006, separate Informations, one for Violation of Section 56(f) of Republic
Act No. (RA) 41365 and another, for Violation of Article 151 of the Revised Penal Code
(RPC)6 were filed against petitioner Sydeco with the MeTC in Manila and eventually
raffled to Branch 14 of that court. The accusatory portions of the interrelated
informations, docketed as Crim. Case No. 052527-CN for the first offense and Crim.
Case No. 052528-CN for the second, respectively read:
1. Crim. Case No. 052527-CN
That on or about June 11, 2006, in the City of Manila, Philippines, the said accused,
being then the driver and owner of a car, did then and there willfully and unlawfully, drive,
manage and operate the same along Roxas Blvd. cor. Quirino Avenue, Malate, in said
city, while under the influence of liquor, in violation of Section 56(f) of Republic Act 4136.
Contrary to law.
2. Crim. Case No. 052528-CN
That on or about June 11, 2006, in the City of Manila, Philippines, the said accused, did
then and there willfully and unlawfully resist and disobey P/INSP Manuel Aguilar, SPO2
Virgilio Paulino, SPO4 Efren Bodino and PO3 Benedict Cruz III, bonafide member of the
Philippine National Police, Malate Police Station-9, duly qualified and appointed, and
while in the actual performance of their official duties as such police officers, by then and
there resisting, shoving and pushing, the hands of said officers while the latter was
placing him under arrest for violation of Article 151 of the Revised Penal Code.
Contrary to law.
By Order of September 19, 2006, the MeTC classified the cases as falling under, thus to
be governed by, the Rule on Summary Procedure.
When arraigned, petitioner, as accused, pleaded "Not Guilty" to both charges.
During the trial of the two consolidated cases, the prosecution presented in evidence the
oral testimonies of SPO4 Efren Bodino (Bodino), 7 PO2 Emanuelle Parungao8 and Ms.
Laura Delos Santos,9 plus the documents each identified while in the witness box, among
which was Exh. "A", with sub-markings, the Joint Affidavit of Arrest 10 executed by SPO2
Bodino and two other police officers. The defense’s witnesses, on the other hand,
consisted of Sydeco himself, his wife, Mildred, and Joenilo Pano.
The prosecution’s version of the incident, as summarized in and/or as may be deduced
from, the CA decision now on appeal is as follows:
On or about June 11, 2006, P/Insp. Manuel Aguilar (Aguilar), SPO4 Bodino, PO3
Benedict Cruz III and another officer were manning a checkpoint established along
Roxas Boulevard corner Quirino Ave., Malate, Manila when, from about twenty (20)
meters away, they spotted a swerving red Ford Ranger pick up with plate number XAE-
988. Petitioner was behind the wheel. The team members, all inuniform, flagged the
vehicle down and asked the petitioner to alightfrom the vehicle so he could take a rest at
the police station situated nearby,before he resumes driving. 11 Petitioner, who the
policemen claimed was smelling of liquor, denied being drunk and insisted he could
manage to drive. Then in a raised voice, petitioner started talking rudely to the policemen
and in fact yelled at P/Insp. Aguilar blurting: "P…g ina mo, bakit mo ako hinuhuli." Atthat
remark, P/Insp. Aguilar, who earlier pointed out to petitioner that his team had seen him
swerving and driving under the influence of liquor, proceeded to arrestpetitioner who put
up resistance. Despite petitioner’s efforts to parry the hold on him, the police eventually
succeeded in subduing him who was then brought to the Ospital ng Maynila where he
was examined and found to be positive of alcoholic breath per the Medical Certificate
issuedby that hospital, marked as Exh. "F". Petitioner was then turned over to the Malate
Police Station for disposition.12 Petitioner, on the other hand, claimed tobe a victim in the
incident in question, adding in this regard that he has in fact filed criminal charges for
physical injuries, robbery and arbitrary detention against P/Insp. Aguilar et al. In his
Counter-Affidavit13 and his Complaint-Affidavit14 appended thereto, petitioner averred that,
in the early morning of June 12, 2006, he together with Joenilo Pano and Josie
Villanueva, cook and waitress, respectively, in his restaurant located along Macapagal
Ave., Pasay City, were on the way home from on board his pick-up when signaled to
stop by police officers at the area immediately referred to above. Their flashlights trained
on the inside of the vehicle and its occupants, the policemen then asked the petitioner to
open the vehicle’s door and alight for a body and vehicle search, a directive he refused
to heed owing to a previous extortion experience. Instead, he opened the vehicle
window, uttering, "plain view lang boss, plain view lang." Obviously irked by this remark,
one of the policemen, P/Insp. Aguilar, as it turnedout, then told the petitioner that he was
drunk, pointing to three cases of empty beer bottles in the trunk of the vehicle.
Petitioner’s explanation about being sober and that the empty bottles adverted to came
from his restaurant was ignored as P/Insp. Aguilar suddenly boxed him (petitioner) on the
mouth and poked a gun at his head, at the same time blurting, "P…g ina mo gusto mo
tapusin na kita dito marami ka pang sinasabi." The officers then pulled the petitioner out
of the driver’s seat and pushed him into the police mobile car, whereupon he, petitioner,
asked his companions to call up his wife. The policemen then brought petitioner to the
Ospital ng Maynila where they succeeded in securing a medical certificate under the
signature of one Dr. Harvey Balucating depicting petitioner as positive of alcoholic
breath, although he refused to be examined and no alcohol breath examination was
conducted. He was thereafter detained from 3:00 a.m.of June 12, 2006 and released in
the afternoon of June 13, 2006. Before his release, however, he was allowed to undergo
actual medical examination where the resulting medical certificate indicated that he has
sustained physical injuries but negative for alcohol breath. Ten days later, petitioner filed
his Complaint-Affidavit against Dr. Balucating, P/Insp. Aguilar and the other police
officers.
Petitioner also stated in his counter-affidavit that, under Sec. 29 of R.A. 4136, or the
Land Transportation and Traffic Code, the procedure for dealing with a traffic violation is
not to place the erring driver under arrest, but to confiscate his driver’s license.
On June 26, 2009, the MeTC rendered judgment finding petitioner guilty as charged,
disposing as follows:
WHEREFORE, premises considered, the prosecution having established the guilt of the
accused beyond reasonable doubt, his conviction of the offenses charges is hereby
pronounced. Accordingly, he is sentenced to:
1. Pay a fine of two hundred fifty pesos (₱250.00) for Criminal Case No. 052527-
CN; and
2. Suffer imprisonment of straight penalty of three (3) months and pay a fine of
two hundred fifty pesos (₱250.00) for Criminal Case No. 052528-CN.
For lack of basis, no civil liability is adjudged.
The Branch Clerk of Court is directed to certify to the Land Transportation Office the
result of this case, stating further the data required under Section 58 15 of Republic Act
4136.
Therefrom, petitioner appealed to the RTC on the main submissions that the MeTC erred
in: 1) according credit to the medical certificate issued by Dr. Balucating, although the
records custodian of Ospital ng Maynila was presented to testify thereon instead of the
issuing physician, and 2) upholding the veracity of the joint affidavit of arrest of P/INSP
Manuel Aguilar, SPO4 Efren Bodino, and PO3 Benedict Cruz III, considering that only
SPO4 Bodino appeared in court to testify.
By Decision16 dated February 22, 2010, the RTC affirmed the conviction of the petitioner,
addressing the first issue thus raised in the appeal in the following wise: Dr. Balucating’s
failure to testify relative to petitioner’s alcoholic breath, as indicatedin the medical
certificate, is not fatal as such testimony would only serve to corroborate the testimony
on the matter of SPO4 Bodino, noting thatunder the Rules of Court,17 observations of the
police officers regarding the petitioner’s behavior would suffice to support the conclusion
of the latter’s drunken state on the day he was apprehended.18
Apropos the second issue, the RTC pointed out that the prosecution has the discretion
as to how many witnesses it needs to present before the trial court, the positive
testimony of a single credible witness as to the guilt of the accused being reasonable
enough to warrant a conviction. The RTC cited established jurisprudence 19 enunciating
the rule that preponderance is not necessarily with the greatest number as "[W]itnesses
are to be weighed, not numbered." Following the denial by the RTC of his motion for
reconsideration, petitioner went to the CA on a petition for review, the recourse docketed
as CA-G.R. CR No. 33567. By a Decision dated December 28, 2011, as would be
reiterated in a Resolution of July 18, 2012, the appellatecourt affirmed that of the RTC,
thus:
WHEREFORE, the petition is DENIED. The assailed Decision dated February 22, 2010
of the RTC, Manila, Branch 12, is AFFIRMED.
SO ORDERED.
Hence, this petition on the following stated issues:
I. The CA erred in upholding the presumption of regularity in the performance of
duties by the police officers; and
II. The CA erred in giving weight to the Medical Certificate issued by Dr. Harvey
Balucating, in the absence of his testimony before the Court.
The petition is meritorious.
Prefatory, the rule according great weight, even finality at times, to the trial court’s
findings of fact does hold sway when, as here, it appears in the record that facts and
circumstancesof weight and substance have been overlooked, misapprehended or
misapplied in a case under appeal.20 Corollary, it is basic that an appeal in criminal
prosecutions throws the whole case wide open for review, inclusive of the matter of
credibility and appreciation of evidence.21` Peace officers and traffic enforcers,like other
public officials and employees are bound to discharge their duties with prudence, caution
and attention, which careful men usually exercise in the management of their own
affairs.22
In the case at bar, the men manning the checkpoint in the subject area and during the
period material appearednot to have performed their duties as required by law, or at least
fell short of the norm expected of peace officers. They spotted the petitioner’s purported
swerving vehicle. They then signaled him to stop which he obeyed. But they did not
demand the presentation of the driver’s license orissue any ticket or similar citation paper
for traffic violation as required under the particular premises by Sec. 29 of RA 4136,
which specifically provides:
SECTION 29. Confiscation of Driver’s License. – Law enforcement and peace officers of
other agencies duly deputized by the Director shall, in apprehending a driver for any
violation of this Act or any regulations issued pursuant thereto, or of local traffic rules and
regulations x x x confiscate the license ofthe driver concerned and issue a receipt
prescribed and issuedby the Bureau therefor which shall authorize the driver to operate a
motor vehicle for a period not exceeding seventy-two hours from the time and date of
issue of said receipt. The period so fixed in the receipt shall not be extended, and shall
become invalid thereafter.x x x (Emphasis added.) Instead of requiring the vehicle’s
occupants to answer one or two routinary questions out of respectto what the Court has,
in Abenes v. Court of Appeals,23 adverted to as the motorists’ right of "free passage
without [intrusive] interruption," P/Insp. Aguilar, et al. engaged petitioner in what appears
to be an unnecessary conversation and when utterances were made doubtless not to
their liking, they ordered the latter to step out of the vehicle, concluding after seeing three
(3) empty cases of beer at the trunk of the vehicle that petitioner was driving under the
influence of alcohol. Then petitioner went on with his "plain view search" line. The remark
apparently pissed the police officers off no end as one of them immediately lashed at
petitioner and his companions as "mga lasing" (drunk) and to get out of the vehicle, an
incongruous response to an otherwise reasonable plea. Defense witness, Joenilo Pano,
graphically described this particular event in his sinumpaang salaysay, as follows:
x x x matapos kami huminto ay naglapitan sa amin ang mga pulis, nag flash light sa loob
ng sasakyan at sa aming mga mukha.
x x x isang pulis ang nag-utos sa aminna kami ay magsi-baba at buksan ang pintuan ng
nasabing sasakyan.
x x x dahil doon sinabi ni Kuya sa mga pulis, na hindi pwede iyon at pinigilan niya ako at
ang aking kasama kong waitress na bumaba.
x x x iginiit ni Kuya sa mga pulisang salitang "PLAIN VIEW LANG BOSS, PLAIN VIEW
LANG" pero iyon ayhindi nila pinansin. Sa halip as isang pulis ang nagsabi na "MGA
LASING KAYO HETO MAY CASE PA KAYO NG BEER".
x x x habang nagpapaliwanag si Kuya, isang pulis ang biglang kumuha ng susi ng
sasakyan habang ang isang pulis ang biglang sumuntok sa bibig ni Kuya, nagbunot ng
baril at tinutukan sa ulo si Kuya.
x x x dahil doon ay nagmakaawa ako na wag barilin si Kuya subalit ako rin ay tinutukan
ng baril. x x x na matapos suntukin si Kuya aypinagtulungan siya ng mga pulis na ilabas
sa sasakyan at nang mailabas siyaay pinagtulakan siya ng mga pulis sa gilid ng kalsada
habang hawak ang kanilang baril.24
Pano’s above account ironicallyfinds in a way collaboration from the arresting officers
themselves who admitted that they originally had no intention to search the vehicle in
question nor subject its occupants to a body search. The officers wrote in their
aforementioned joint affidavit:
xxxx
That we arrested the suspect, Edmund Sydeco y Siozon x x x for violation of RA 4136
(Driving under the influence of liquor), and violation of Article 151 of the RPC (Resisting
Arrest) x x x committed on or about 3:30A.M., June 11, 2006 along x x x Malate, Manila.
x x x He began to raise his voice and converse with us rudely without considering that we
are in uniform, on duty and performing our job. P/INSP Manuel Aguilar pointed out that
we saw him swerving and driving under the influence of liquor that was why we are
inviting him to our police station in which our intention was to make him rest for a
moment before he continue to drive. x x x (Emphasis added.)
In fine, at the time of his apprehension, or when he was signaled to stop, to be precise,
petitioner has not committed any crime or suspected of having committed one.
"Swerving," as ordinarily understood,refers to a movement wherein a vehicle shifts from
a lane to another or to turn aside from a direct course of action or movement. 25 The act
may become punishable when there is a sign indicating that swerving is prohibited or
where swerving partakes the nature ofreckless driving, a concept defined under RA
4136, as:
SECTION 48. Reckless Driving. – Noperson shall operate a motor vehicle on any
highway recklessly or without reasonable caution considering the width, traffic, grades,
crossing, curvatures, visibility and other conditions of the highway and the conditions of
the atmosphere and weather, or so as to endanger the property or the safetyor rights of
any person or so as to cause excessive or unreasonable damage to the highway.
Swerving is not necessarily indicative of imprudent behavior let alone constitutive of
reckless driving. To constitute the offense of reckless driving, the act must be something
more than a mere negligence in the operation of a motor vehicle, and a willful and
wantondisregard of the consequences is required.26 Nothing in the records indicate that
the area was a "no swerving or overtaking zone." Moreover, the swerving incident, if this
be the case, occurred at around 3:00 a.m. when the streets are usually clear of moving
vehicles and human traffic, and the danger to life, limb and property to third persons is
minimal. When the police officers stopped the petitioner’s car, they did not issue any
ticket for swerving as required under Section 29 of RA 4136. Instead, they inspected the
vehicle, ordered the petitioner and his companions to step down of their pick up and
concluded that the petitioner was then drunk mainly because of the cases of beer found
at the trunk of the vehicle. On re-direct examination, SPO4 Bodino testified:
Q: On that particular date, time and place … what exactly prompted you to arrest the
accused (sic) the charged in for Viol. of Section 56(f) of R.A. 4136?
A: Noong mag check-up kami, naamoynamin na amoy alak siya at yung sasakyan ay
hindi maganda ang takbo.
Q: Now you stated in your affidavit of arrest Mr. Witness that you spotted the vehicle of
the accused swerving, is that correct?
A: Yes, sir.
Q. Is that also the reason why you apprehended him?
A: Yes, sir.
Q: And what happened after Mr. Witness, when you approached the vehicle of the
accused?
A: The accused was in a loud voice. He was asking, "Bakit daw siya pinahihinto?"
xxxx
Q: How do you describe the resistance Mr. Witness?
A: He refused to ride with usgoing to the hospital, Your Honor.
x x x x27
Going over the records, it is fairly clear that what triggered the confrontational stand-off
testified, but only to attest that the hospital has a record of the certificate. The trial court,
in its decision, merely stated:
At the outset, the records of the case show that the same were not testified upon by the
doctor who issued it. Instead, the Records Custodian of the Ospital ng Maynila was
1âwphi1

between the police team, on one hand, and petitioner on the other, was the latter’s presented by the Prosecution to testify on the said documents.
refusal to get off of the vehicle for a body and vehicle search juxtaposed by his insistence
on a plain view search only. Petitioner’s twin gestures cannot plausibly be considered as However, although the doctor who examined the accused was unable to testify to affirm
resisting a lawful order.28 He may have sounded boorish or spoken crudely at that time, the contents of the Medical Certificate he issued (re: that he was found to have an
but none of this would make him a criminal. It remains to stress that the petitioner has alcoholic breath), this court finds that the observation of herein private complainants as
not, when flagged down, committed a crime or performed an overt act warranting a to the accused’s behavior and condition after the incident was sufficient.
reasonable inference of criminal activity. He did not try to avoid the road block
established. He came to a full stop when so required to stop. The two key elements of Under Section 50 of Rule 130 of the Revised Rules of evidence:
resistance and serious disobedience punished under Art. 151 of the RPC are: (1) That a
person in authority or his agent is engaged in the performance of official duty or gives a The opinion of a witness for which proper basis is given, may be received in evidence
lawful order to the offender; and (2) That the offender resists or seriously disobeys such regarding x x x x
person or his agent.29
The witness may also testify on his impressions of the emotion, behavior, condition or
There can be no quibble that P/Insp. Aguilar and his apprehending team are persons in appearance of a person Under Section 15 of the Revised Rules on Summary Procedure,
authority or agents of a person in authority manning a legal checkpoint. But surely "at the trial, the affidavits submitted by the parties shall constitute the direct testimonies
petitioner’s act of exercising one’s right against unreasonable searches 30 to be conducted of the witnesses who executed the same."32
in the middle of the night cannot, in context, be equated to disobedience let alone
resisting a lawful order in contemplation of Art. 151 of the RPC. As has often been said,
In sum, the MeTC, as echoed by RTC and CA later, did not rely on the medical certificate
albeit expressed differently and under dissimilar circumstances, the vitality of democracy
Dr. Balucating issued on June 12, 2006 as to petitioner’s intoxicated state, as the former
lies not in the rights it guarantees, but in the courage of the people to assert and use
was not able to testify as to its contents, but on the testimony of SPO4Bodino, on the
them whenever they are ignored or worse infringed. 31 Moreover, there is, to stress,
assumption that he and his fellow police officers were acting in the regular performance
nothing in RA 4136 that authorized the checkpoint-manning policemen to order petitioner
of their duties. It cannot be emphasized enough that smelling of liquor/alcohol and be
and his companions to get out of the vehicle for a vehicle and body search. And it bears
under the influence of liquor are differing concepts. Corollarily, it is difficult to determine
to emphasize that there was no reasonable suspicion of the occurrence of a crime that
with legally acceptable certainty whether a person is drunk in contemplation of Sec. 56(f)
would allow what jurisprudence refers to as a "stop and frisk" action. As SPO4 Bodino no
of RA 4136 penalizing the act of driving under the influence of alcohol. The legal situation
less testified, the only reason why they asked petitioner to get out of the vehicle was not
has of course changed with the approval in May 2013 of the Anti-Drunk and Drugged
because he has committed a crime, but because of their intention toinvite him to Station
Driving Act of 2013 (RA 10586) which also penalizes driving under the influence of
9 so he could rest before he resumes driving. But instead of a tactful invitation, the
alcohol (DUIA),33 a term defined under its Sec. 3(e) as the "act of operating a motor
apprehending officers, in an act indicative of overstepping of their duties, dragged the
vehicle while the driver’s blood alcohol concentration level has, after being subjected to a
petitioner out of the vehicle and, in the process of subduing him, pointed a gun and
breath analyzer test reached the level of intoxication as established jointly by the [DOH],
punched him on the face. None of the police officers, to note, categorically denied the
the NAPOLCOM] and the [DOTC]. And under Sec. 3(g) of the IRR of RA 10586, a driver
petitioner’s allegation aboutbeing physically hurt before being brought to the Ospital ng
of a private motor vehicle with gross vehicle weight not exceeding 4,500 kilograms who
Maynila to be tested for intoxication. What the policemen claimed was that it took the
has BAC [blood alcohol concentration] of 0.05% or higher shall be conclusive proof that
three (3) of them to subdue the fifty-five year old petitioner. Both actions were done in
said driver isdriving under the influence of alcohol. Viewed from the prism of RA 10586,
excess of their authority granted under RA 4136. They relied on the medical certificate
petitioner cannot plausibly be convicted of driving under the influence of alcohol for this
issued by Dr. Balucating attesting that petitioner showed no physical injuries. The
obvious reason: he had not been tested beyond reasonable doubt, let alone conclusively,
medical certificate was in fact challenged not only because the petitioner insisted at
for reaching during the period material the threshold level of intoxication set under the
every turn that he was not examined, but also because Dr. Balucating failed to testify as
law for DUIA, i.e., a BAC of 0.05% or over. Under Art. 22 of the RPC, 34 penal laws shall
to its content. Ms. Delos Santos, the medical record custodian ofthe Ospital ng Maynila,
be given retroactive insofar asthey are favorable to the accused. Section 19 of RA 10586
expressly modified Sec. 56(f) of RA 4136. Verily, even by force of Art. 22 ofthe RPC in
relation to Sec. 3(e) of RA 10586 alone, petitioner could very well be acquitted for the
charge of driving under the influence of alcohol, even if the supposed inculpatory act
occurred in 2006.
Parenthetically, the Office of the City Prosecutor of Manila, per its Resolution35 of
November 21, 2006 found, on the strength of another physical examination from the
same Ospital ng Maynila conducted by Dr. Devega on the petitioner on the same
day,June 12, but later hour, probable cause for slight physical injuries against P/Insp.
Aguilar et al. That finding to be sure tends to indicate that the police indeed man handled
the petitioner and belied, or at least cancelled out, the purported Dr. Balucating’s finding
as to petitioner’s true state.
The Court must underscore at this juncture that the petitioner, after the unfortunate
incident, lost no time incommencing the appropriate criminal charges against the police
officers and Dr. Balucating, whomhe accused of issuing Exh. "F" even without examining
him. The element of immediacy in the filing lends credence to petitioner’s profession of
innocence, particularly of the charge of disobeying lawful order or resisting arrest.
Certainly not to be overlooked is the fact that petitioner,in so filing his complaint, could
not have possibly been inspired by improper motive, the police officers being complete
strangers to him and vice versa. Withal, unless he had a legitimate grievance, it is
difficult to accept the notion that petitioner would expose himself to harm’s way by filing a
harassment criminal suit against policemen.
Conviction must come only after it survives the test of reason. 36 It is thus required that
every circumstance favoring one’s innocence be duly taken into account. 37 Given the
deviation of the police officers from the standard and usual procedure in dealing with
traffic violation by perceived drivers under the influence of alcoholand executing an
arrest, the blind reliance and simplistic invocation by the trial court and the CA on the
presumption of regularity in the conduct of police duty is clearly misplaced. As stressed
in People v. Ambrosio,38 the presumption of regularity is merely just that, a presumption
disputable by contrary proof and which when challenged by the evidence cannot be
regarded as binding truth. And to be sure, this presumption alone cannot preponderate
over the presumption of innocence that prevails if not overcome by proof that obliterates
all doubts as to the offender’s culpability. In the present case, the absence of conclusive
proof being under the influence of liquor while driving coupled with the forceful manner
the police yanked petitioner out of his vehicle argues against or at least cast doubt on the
finding of guilt for drunken driving and resisting arrest.
In case of doubt as to the moral certainty of culpability, the balance tips in favor of
innocence or at least infavor of the milderform of criminal liability. This is as it should be.
For, it is basic, almost elementary, that the burden of proving the guiltof an accused lies
on the prosecution which must rely on the strength of its evidence and noton the
weakness of the defense.
WHEREFORE, in light of all the foregoing, the appealed Decision and Resolution of the
Court of Appeals in CA-G.R. CR No. 33567 are hereby REVERSED and SET ASI:OE.
Petitioner is hereby acquitted of the crimes charged in Criminal Case No. 052527-CN
and Criminal Case No. 052528-CN.
No pronouncement as to costs.
G.R. No.198024
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
RAFAEL CUNANAN y DAVID alias "PAENG PUTOL", Accused-Appellant.
RESOLUTION
DEL CASTILLO, J.:
On appeal is the January 27, 2011 Decision1 of the Court of Appeals (CA) in CA-G.R.
CR-H.C. No. 04062, which affirmed the July 1, 2009 Decision2 of the Regional Trial Court
(RTC) of Pasig City, Branch 164 in Criminal Case No. 15143-D finding appellant Rafael
Cunanan y David alias "Paeng Putol" (appellant) guilty beyond reasonable doubt of
violation of Section 5, Article II of Republic Act (RA) No. 9165 or the Comprehensive
Dangerous Drugs Act of2002 and sentencing him to suffer the penalty of life
imprisonment and to pay a fine of P500,000.00 and the costs.
Antecedent Facts
On October 19, 2006, an Information3 was filed charging appellant with the crime of
illegal sale of dangerous drugs, the accusatory portion of which reads:
On or about October 14, 2006, in Pasig City, and within the jurisdiction of this Honorable
Court, the accused, not being lawfully authorized by law, did then and there willfully,
unlawfully and feloniously sell, deliver and give away to PO1 Dario Gunda, Jr., a police
poseur-buyer, one (1) heat-sealed transparent plastic sachet containing two centigrams
(0.02gram), of white crystalline substance, which was found positive to the test for
methamphetamine hydrochloride, a dangerous drug, in violation of the said law.
Contrary to law.4
Appellant pleaded not guilty upon his arraignment on April 30, 2007. Trial on the merits
immediately followed. In the course thereof, the testimony of prosecution witness P/Sr.
Insp. Lourdeliza G. Cejes (PSI Cejes), the Forensic Chemist of the Eastern Police
District (EPD) Crime Laboratory Office, was dispensed with after the prosecution and the
defense stipulated on the following:
1.That in relation to the arrest of appellant, a request for laboratory examination
was made on October 14, 2006 by P/Sr. Insp. Bernouli D. Abalos (PSI Abalos) of
the EPD Anti-Illegal Drugs Special Operation Task Force to the Chief of the EPD
Crime Laboratory Service;
2.That attached to the request is one heat-sealed transparent plastic sachet
containing an undetermined amount of white crystalline substance suspected to
be shabu with markings Exh-A RCD/DG dated October 13, 2006, but not as to
the source of the specimen;
3.That the request together with the specimen were delivered by PO2 Michael
Familara (PO2 Familara), recorded by PO1 Menese and received by PSI Cejes;
4.That a qualitative examination on the specimen was conducted by PSI Cejes
which gave positive result for the presence of methamphetamine hydrochloride, a
dangerous drug, as shown in Physical Sciences Report No. D-452-2006E; and
5.The regularity and due execution of the Physical Sciences Report.5
Version of the Prosecution
The prosecution’s version of the event as derived from the combined testimonies of PO1
Dario Gunda, Jr. (PO1 Gunda) and PO2 Familara is summarized as follows:
At about 6:00 p.m. on October 13, 2006, a confidential informant (CI) went to the EPD-
District Intelligence Investigation Division (EPD-DIID) Headquarters of Pasig City and
informed PSI Abalos that a certain "Paeng Putol," later identified as the appellant, was
engaged in selling illegal drugs in Purok 4, Barangay Pineda, Pasig City. Acting on the
information, PSI Abalos organized a buy-bust team composed of himself, PO1 Gunda,
PO1 Daniel Robiene, PO2 Familara, SPO1 Jessie Bautista, and PO1 Ambrosio Gam,
among others, to entrap appellant. PO1 Gunda was designated as the poseur-buyer and
was thus given two 100-peso bills6 which he marked with his initials "DG," while the rest
of the team would act as back-ups. After a short briefing, PSI Abalos prepared a Pre-
Operation Report/Coordination Sheet7 and coordinated the buy-bust operation with the
Pasig City Police Station and the Philippine Drug Enforcement Agency (PDEA).
Thereafter, the team proceeded to and arrived at the target area at 9:20 p.m. PO1
Gunda and the CI walked towards a store along an alley while the others strategically
positioned themselves some five to seven meters away. The CI saw a man wearing
gloves standing beside the store and informed PO1 Gunda that the man was the
appellant. Together, they approached appellant who is familiar to the CI. PO1 Gunda
was introduced to appellant as a drug user who wanted to buy shabu worth P200.00.
After receiving the marked money from PO1 Gunda, appellant entered a narrow alley
and came back with a small plastic sachet containing white crystalline substance which
he handed to PO1 Gunda. Thereupon, PO1 Gunda gave the pre-arranged signal to
inform the buy-bust team of the consummated transaction and arrested appellant. When
asked to empty his pocket, recovered from appellant were the two marked 100-peso bills
used as buy- bust money. Appellant was then informed of his constitutional rights and
the nature of the accusation against him and brought to the EPD Headquarters. PO1
Gunda stapled the marked money on a bond paper and wrote thereon "recovered pre-
marked buy-bust money dated October 13, 2006." He also marked the plastic sachet
with "Exh-A RCD/DG 10/13/06." The said items were likewise brought to the EPD
Headquarters and turned over to PO2 Familara for further investigation. Later, the seized
substance were inventoried and photographed. After this, PO1 Gunda and PO2 Familara
brought appellant, together with a request for his drug testing, 8 and the seized substance,
as well as a request for its laboratory examination, 9 to the EPD Crime Laboratory. The
substance with the corresponding marking "Exh-A RCD/DG 10/13/06" on its plastic
sachet was received by PSI Cejes in the morning of October 14, 2006. Per Physical
Sciences Report No. D-452-2006E issued by PSI Cejes,10 the substance weighing 0.02
gram was found positive for methamphetamine hydrochloride or shabu, a dangerous
drug.
Version of the Defense
Appellant denied the charge and interposed the defenses of denial and frame-
up/extortion. He alleged that after eating dinner on October 13, 2006, he was watching a
bingo game when three men arrived and held him by both hands. They introduced
themselves as policemen and told him that they have a warrant for his arrest. They then
handcuffed and frisked him and took away his wallet and cellphone. The men brought
him to a police station where PO2 Familara threatened to file a case against him unless
he gives the police P50,000.00 as settlement. He failed to give the said amount.
Another witness for the defense, Genedina Guevarra Ignacio, testified that she was
outside her house between 7:00 p.m. and 8:00 p.m. of October 13, 2006 when she
noticed three men passed by her in haste. The men approached appellant who was then
watching a bingo game across the street and suddenly handcuffed him. She heard
appellant asking the reason for his arrest. She did not know what happened next since
she already went inside her house.
Ruling of the Regional Trial Court
In its July 1, 2009 Decision,11 the trial court adjudged appellant guilty of the crime
charged, thus:
WHEREFORE, the Court finds accused Rafael Cunanan y David alias "Paeng Putol"
GUILTY beyond reasonable doubt of violation of Section 5, Article II of R.A. 9165 and
hereby imposes upon him the penalty of life imprisonment and a fine of Five Hundred
Thousand Pesos (Php500,000.00) with the accessory penalties provided for under
Section 35 of said R.A. 9165.
The plastic sachet containing shabu (Exhibit "I") is hereby ordered confiscated in favor of
the government and turned over to the Philippine Drug Enforcement Agency for
destruction.
With costs against the accused.
SO ORDERED.12
Ruling of the Court of Appeals
On appeal, the CA affirmed appellant’s conviction in its January 27, 2011 Decision, 13 viz:
WHEREFORE, there being no reversible error committed by the trial court, the appeal is
DISMISSED. The assailed Decision dated July 1, 2009 of the RTC, Branch 164, Pasig
City, in Criminal Case No. 15143-D, is AFFIRMED.
SO ORDERED.14
Hence, this appeal where appellant points out that: (1) there was no in flagrante delicto
arrest as he was not committing any crime at the time he was apprehended but was
merely watching a bingo game; (2) it was inconceivable for him to openly sell illegal
drugs as PO1 Gunda himself testified that at the time of the alleged sale transaction
there were many people around the target area; (3) the apprehending officers failed to
comply with the guidelines on the proper custody of the seized dangerous drug,
specifically with respect to its inventory and taking of photograph, and this casts doubt on
whether the plastic sachet with white crystalline substance identified in court was the
same item allegedly seized and confiscated from him; and (4) the testimonies of PO1
Gunda and PO2 Familara as to who was in possession of the seized item from the target
area up to the police station were conflicting.
Our Ruling
The appeal is without merit.
Appellant was lawfully arrested after he was caught in flagrante delicto selling an illegal
drug in a buy-bust operation; contrary to his contention, it was not inconceivable that he
would openly sell an illegal drug in public.
Appellant assails the legality of his arrest contending that he was not caught in flagrante
delicto. Appellant’s contention fails to convince. The testimony of PO1 Gunda who acted
as the poseur-buyer in the buy-bust operation clearly recounts how the sale transaction
between him and appellant transpired, viz:
Q- After you were introduced by this confidential informant to Paeng Putol that you are
user of illegal drugs, what was the reaction of the target person, this Paeng Putol?
A- The confidential [informant] asked him, "Paeng, halagang dos, meron ka ba[?],
kukuha kami.
Q- What was the reply of this alias Paeng Putol?
A- Akina iyong pera, sabi niya.
Q- What did you do?
A- I gave to him the two pieces of one[-]hundred peso bill[s].
Q- What happened?
A- Sinabi niya na antayin ninyo ako diyan. Pumasok siya sa eskinita, hindi kalayuan,
mga two to three meters.
Q- What did he do?
A- He returned and gave me one plastic sachet containing suspected shabu.
Q- After he handed to you that plastic sachet, what did you do next?
A- Nag pre-arranged signal ako para tulungan ako sa paghuli kay alias Paeng Putol.
 xxxx
Q- What happened?
A- Hinawakan ko siya. Tapos pinakuha ko kung ano iyong laman ng bulsa niya. Ayun na
recover ko sa kanyang possession iyong dalawang daan. 15
It is crystal clear from the foregoing that a sale transaction took place between appellant
and PO1 Gunda. That the said transaction involved the illegal sale of dangerous drug
was sufficiently shown by the prosecution through its establishment of the following
elements of the offense: "(1) the identity of the buyer and the seller, object and
consideration; and (2) the delivery of the thing sold and the payment
therefor."16 Undoubtedly, appellant was lawfully arrested after he was caught in flagrante
delicto selling shabu in a buy-bust operation.
In any event, jurisprudence is settled that "any irregularity attending the arrest of an
accused should be timely raised in a motion to quash the Information at any time before
arraignment, failing [in] which, he is deemed to have waived" 17 his right to question the
regularity of his arrest. As the records show, except during the inquest proceedings
before the prosecutor’s office, appellant never objected to the regularity of his arrest
before his arraignment. In fact, he even actively participated in the trial of the case. With
these lapses, he is estopped from raising any question regarding the same. 18
Also not persuasive is appellant’s argument that it is inconceivable that he would openly
sell an illegal drug in a place where there were many people. The Court has already
stated that drug pushers now sell their prohibited articles to any prospective customer,
be he a stranger or not, in private as well as in public places, and even in daytime. 19
The identity and evidentiary value of the seized item have been preserved.
Appellant assails the proof of the corpus delicti by pointing out the arresting officers’ non
compliance with the procedure on the proper custody and disposition of the seized item
under Section 21 of RA 9165 and its Implementing Rules and Regulations, particularly
with respect to the inventory and taking of photograph of the seized item. He contends
that while PO1 Gunda testified that an inventory of the seized item was made and a
photograph thereof was taken, such inventory and photograph were not offered as
evidence.
Appellant’s contention is untenable. "This Court has consistently ruled that non-
compliance with the requirements of Section 21 of [RA] 9165 will not necessarily render
the [item] seized or confiscated in a buy-bust operation inadmissible. Strict compliance
with the letter of Section 21 is not required if there is a clear showing that the integrity
and evidentiary value of the seized [item] have been preserved, i.e., the [item] being
offered in court as [exhibit is], without a specter of doubt, the very same [one] recovered
in the buy-bust operation."20 Thus, the primordial concern is the preservation of the
integrity and evidentiary value of the seized items as the same would be utilized in the
determination of the guilt or innocence of the accused. 21
Here, the records reveal that after the consummation of the sale and the consequent
arrest of appellant, the plastic sachet sold by appellant was marked with "Exh-A
RCD/DG/10/13/06"22 by PO1 Gunda at the place where it was confiscated. Thereafter,
appellant and the seized drug were brought to the police station. And as stipulated by the
parties, a request for laboratory examination of a plastic sachet containing white
crystalline substance with marking "Exh-A RCD/DG/10/13/06" was prepared; the said
request and specimen were delivered by PO2 Familara and PO1 Menese to EPD Crime
Laboratory and received by PSI Cejes; and, a qualitative examination of the specimen by
PSI Cejes revealed that the same is positive for metamphetamine hydrochloride or
shabu, a dangerous drug. During trial, the marked plastic sachet was presented and
identified by PO1 Gunda as the same item sold to him by appellant.
From this sequence of events, the prosecution was able to show an unbroken link in the
chain of custody of the subject item which is the proof of the corpus delicti. Its integrity
and evidentiary value were shown not to have been compromised notwithstanding the
fact that the inventory and photograph thereof which PO1 Gunda claimed to have been
made were not offered in evidence. Besides, "[t]he integrity of the evidence is presumed
to have been preserved unless there is a showing of bad faith, ill will or proof that the
evidence has been tampered with."23 In this case, the defense failed to prove ill motive on
the part of the apprehending officers that would have impelled them to fabricate a serious
crime against appellant. Also, the alleged inconsistency in the testimonies of PO1 Gunda
and PO2 Familara as to who was in possession of the item from the police station to the
EPD crime laboratory did not create any doubt that what was submitted for laboratory
examination and later presented in court as evidence was the same drug actually sold by
the appellant.
Appellant’s defenses of denial and
frame-up/extortion must fail.
Appellant’s defenses of denial and frame-up/extortion must fail in light of the positive
testimony of PO1 Gunda, the poseur-buyer, that appellant sold to him the illegal drug.
Moreover, it was not shown that appellant filed any criminal or administrative charges
against the apprehending officers, thus clearly belying his claim of frame-up/extortion
against them.
All told, appellant’s violation of Section 5, Article II of RA 9165 was duly established
beyond reasonable doubt by the prosecution. Hence, the Court affirms his conviction.
1âwphi1
 Penalty
Under RA 9165, the unauthorized sale of shabu, regardless of its quantity and purity,
carries with it the penalty of life imprisonment to death and a fine ranging from
P500,000.00 to P10 million. Here, the penalty of life imprisonment and a fine of
P500,000.00 imposed upon appellant by the RTC and affirmed by the CA are in order. It
must be added, however, that appellant shall not be eligible for parole. 24
WHEREFORE, the January 27, 2011 Decision of the Court of Appeals in CA-G.R. CR-
H.C. No. 04062, which affirmed the July 1, 2009 Decision of the Regional Trial Court of
Pasig City, Branch 164 in Criminal Case No. 15143-D finding appellant Rafael Cunanan
y David guilty beyond reasonable doubt of violation of Section 5, Article II of Republic Act
No. 9165 and sentencing him to suffer the penalty of life imprisonment and to pay a fine
of P500,000.00, is AFFIRMED with the modification that appellant shall not be eligible for
parole.
SO ORDERED.
G.R. No. 182534
ONGCOMA HADJI HOMAR, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BRION, J.:
Before the Court is a petition for review on certiorari filed by Ongcoma Hadji Romar
(petitioner) seeking the reversal of the Decision1 of the Court of Appeals (CA) dated
January 10, 2008, and its Resolution dated April 11, 2008 in CA-G.R. CR No. 29364.
These assailed CA rulings affirmed the decision of the Regional Trial Court (RTC) of
Parafiaque City, Branch 259 in Criminal Case No. 02-0986 which convicted the petitioner
for violation of Republic Act (RA) No. 9165 entitled "An Act Instituting the Comprehensive
Dangerous Drugs Act of 2002."
The Factual Antecedents
The petitioner was charged for violation of Section 11, Article II2 of RA 9165. The
Information states that on or about August 20, 2002, the petitioner was found to possess
one heat-sealed transparent plastic sachet containing 0.03 grams of methylamphetamine
hydrochloride, otherwise known as shabu. The petitioner pleaded not guilty during
arraignment.3
PO1 Eric Tan (Tan) was the lone witness for the prosecution. As stated in the RTC
decision, he testified that on August 20, 2002, at around 8:50 in the evening, their Chief,
P/Chief Supt. Alfredo C. Valdez, ordered him and civilian agent (C/A) Ronald Tangcoy
(Tangcoy) to go to the South Wing, Roxas Boulevard. While proceeding to the area
onboard a mobile hunter, they saw the petitioner crossing a "No Jaywalking" portion of
Roxas Boulevard. They immediately accosted him and told him to cross at the pedestrian
crossing area.
The petitioner picked up something from the ground, prompting Tangcoy to frisk him
resulting in the recovery of a knife. Thereafter, Tangcoy conducted a thorough search on
the petitioner’s body and found and confiscated a plastic sachet containing what he
suspected as shabu. Tangcoy and Tan executed a sinumpaang salaysay on the
incident.4
The petitioner was the sole witness for the defense.5 He testified that on August 20,
2002, he was going home at around 6:30 p.m. after selling imitation sunglasses and
other accessories at the BERMA Shopping Center.
After crossing the overpass, a policeman and a civilian stopped and frisked him despite
his refusal. They poked a gun at him, accused him of being a holdupper, and forced him
to go with them. They also confiscated the kitchen knife, which he carried to cut cords.
He was likewise investigated for alleged possession of shabu and detained for one day.
He was criminally charged before the Metropolitan Trial Court of Parañaque City, Branch
77 for the possession of the kitchen knife but he was eventually acquitted.6
The RTC’s Ruling
The RTC convicted the petitioner. It ruled that PO1 Tan and C/A Tangcoy were
presumed to have performed their duties regularly in arresting and conducting a search
on the petitioner. The RTC also noted that PO1 Eric Tan was straightforward in giving his
testimony and he did not show any ill motive in arresting the petitioner. 7
The RTC also did not believe the petitioner’s defense of denial and ruled that it is a
common and standard defense ploy in most prosecutions in dangerous drugs cases.
This defense is weak especially when it is not substantiated by clear and convincing
evidence as in this case.8
The petitioner filed an appeal with the CA.
The CA’s ruling
The CA dismissed the petition and affirmed the RTC’s findings.
According to the CA, Section 5, paragraph (a) of Rule 113 of the Revised Rules of
Criminal Procedure enumerates the circumstances when a warrantless arrest is legal,
valid, and proper. One of these is when the person to be arrested has committed, is
actually committing, or is attempting to commit an offense in the presence of a peace
officer or a private person. In the present case, the petitioner committed jaywalking in the
presence of PO1 Tan and C/A Tangcoy; hence, his warrantless arrest for jaywalking was
lawful.9
Consequently, the subsequent frisking and search done on the petitioner’s body which
produced the knife and the shabu were incident to a lawful arrest allowed under Section
13, Rule 126 of the Revised Rules of Criminal Procedure. 10
The CA likewise ruled that PO1 Tan11 clearly showed that the petitioner was caught in
flagrante delicto in possession of shabu. 12
The petitioner filed a motion for reconsideration which was denied by the CA. 13 Hence,
this appeal.
The Petitioner’s Position
The petitioner argues that the CA erred in affirming his conviction on the following
grounds:
First, the shabu, which was allegedly recovered from the petitioner, is inadmissible as
evidence because it was obtained as a result of his unlawful arrest and in violation of his
right against unreasonable search and seizure.
The petitioner has not committed, was not committing and was not attempting to commit
any crime at the time of his arrest. In fact, no report or criminal charge was filed against
him for the alleged jaywalking.14
Second, assuming for the sake of argument that there was a valid arrest, Section 13,
Rule 126 of the Revised Rules of Criminal Procedure permits a search that is directed
only upon dangerous weapons or "anything which may have been used or constitute
proof in the commission of an offense without a warrant." In the present case, the
offense, for which the petitioner was allegedly caught in flagrante delicto, is jaywalking.
The alleged confiscated drug has nothing to do with the offense of jaywalking. 15
Finally, the non-presentation of Tangcoy, who allegedly recovered the shabu from the
petitioner, renders the prosecution’s evidence weak and uncorroborated. Consequently,
the sole testimony of Tan cannot sustain the petitioner’s conviction beyond reasonable
doubt.
The Respondent’s Position
In his Comment, the respondent argues that the guilt of the petitioner was conclusively
established beyond reasonable doubt.16 He reiterates that the warrantless frisking and
search on the petitioner’s body was an incident to a lawful warrantless arrest for
jaywalking.17 The non-filing of a criminal charge of jaywalking against the petitioner does
not render his arrest invalid.18
The respondent also assails the petitioner’s defense that the shabu is inadmissible as
evidence. According to the respondent, the petitioner can no longer question his arrest
after voluntarily submitting himself to the jurisdiction of the trial court when he entered his
plea of not guilty and when he testified in court. 19
The Court’s Ruling
We find the petition meritorious.
The prosecution failed to prove that a lawful warrantless arrest preceded the search
conducted on the petitioner’s body.
The Constitution guarantees the right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and seizures. Any evidence
obtained in violation of these rights shall be inadmissible for any purpose in any
proceeding. While the power to search and seize may at times be necessary to the
public welfare, the exercise of this power and the implementation of the law should not
violate the constitutional rights of the citizens.20
To determine the admissibility of the seized drugs in evidence, it is indispensable to
ascertain whether or not the search which yielded the alleged contraband was
lawful.21 There must be a valid warrantless search and seizure pursuant to an equally
valid warrantless arrest, which must precede the search. For this purpose, the law
requires that there be first a lawful arrest before a search can be made — the process
cannot be reversed.22
Section 5, Rule 11323 of the Revised Rules of Criminal Procedure provides the only
occasions when a person may be lawfully arrested without a warrant. In the present
case, the respondent alleged that the petitioner’s warrantless arrest was due to his
commission of jaywalking in flagrante delicto and in the presence of Tan and Tangcoy.
To constitute a valid in flagrante delicto arrest, two requisites must concur: (1) the person
to be arrested must execute an overt act indicating that he has just committed, is actually
committing, or is attempting to commit a crime; and (2) such overt act is done in the
presence of or within the view of the arresting officer.24
The prosecution has the burden to prove the legality of the warrantless arrest from which
the corpus delicti of the crime - shabu- was obtained. For, without a valid warrantless
arrest, the alleged confiscation of the shabu resulting from a warrantless search on the
petitioner’s body is surely a violation of his constitutional right against unlawful search
and seizure. As a consequence, the alleged shabu shall be inadmissible as evidence
against him.
On this point, we find that aside from the bare testimony of Tan as quoted by the CA in
its decision, the prosecution did not proffer any other proof to establish that the
requirements for a valid in flagrante delicto arrest were complied with. Particularly, the
prosecution failed to prove that the petitioner was committing a crime.
The respondent failed to specifically identify the area where the petitioner allegedly
crossed. Thus, Tan merely stated that the petitioner "crossed the street of Roxas
Boulevard, in a place not designated for crossing." Aside from this conclusion, the
respondent failed to prove that the portion of Roxas Boulevard where the petitioner
crossed was indeed a "no jaywalking" area. The petitioner was also not charged of
jaywalking. These are pieces of evidence that could have supported the conclusion that
indeed the petitioner was committing a crime of jaywalking and therefore, the subsequent
arrest and search on his person was valid. Unfortunately, the prosecution failed to prove
this in the present case.
We clarify, however, that the filing of a criminal charge is not a condition precedent to
prove a valid warrantless arrest. Even if there is a criminal charge against an accused,
the prosecution is not relieved from its burden to prove that there was indeed a valid
warrantless arrest preceding the warrantless search that produced the corpus delicti of
the crime.
Neither can the presumption of regularity in the performance of official duty save the
prosecution’s lack of evidence to prove the warrantless arrest and search. This
presumption cannot overcome the presumption of innocence or constitute proof of guilt
beyond reasonable doubt. Among the constitutional rights enjoyed by an accused, the
most primordial yet often disregarded is the presumption of innocence. This elementary
principle accords every accused the right to be presumed innocent until the contrary is
proven beyond reasonable doubt; and the burden of proving the guilt of the accused
rests upon the prosecution.25
It may not be amiss to point out also the contrary observation of the Court as regards the
findings of the RTC when it held, rather hastily, that in the process of accosting the
petitioner for jaywalking, Tangcoy recovered from his possession a knife and a small
plastic sachet containing shabu.26 The testimony of Tan, as quoted in the CA decision,
and the findings of the RTC, cast doubt on whether Tan and Tangcoy intended to arrest
the petitioner for jaywalking.
Arrest is the taking of a person into custody in order that he or she may be bound to
answer for the commission of an offense. It is effected by an actual restraint of the
person to be arrested or by that person’s voluntary submission to the custody of the one
making the arrest. Neither the application of actual force, manual touching of the body, or
physical restraint, nor a formal declaration of arrest, is required. It is enough that there be
an intention on the part of one of the parties to arrest the other, and that there be an
intent on the part of the other to submit, under the belief and impression that submission
is necessary.27
The pertinent testimony28 of Tan, as quoted by the CA, is as follows:
Q: What happened after you obeyed the order of your immediate superior?
A: At 8:50 in the evening of August 20, 2002, we saw a male person crossed the street of
Roxas Boulevard, in a place not designated for crossing.
Q: What did you do when you saw this person crossed the street of Roxas Boulevard, in
a place not designated for crossing?
A: We accosted him.
Q: How did you accost that person?
A: We accosted him and pointed to him the right place for crossing. Pero napansin namin
siya na parang may kinukuha, so he was frisked by Ronald Tangcoy and a knife was
recovered from his possession.
Q: After a knife was recovered by your companions (sic) from that person who allegedly
crossed the wrong side of the street, what happened after that?
A: After recovering the knife, nakaalalay lang ako and he was frisked again by Tangcoy
and a plastic sachet was recovered from his possession.
Q: Did you know the contents of that plastic sachet which your companion recovered
from that person who crossed the wrong side of the street?
A: Yes, sir.
Q: What about the contents?
A: Suspected shabu or methylamphetamine hydrochloride.
Q: After the drug was recovered from the possession of that man, what did you do?
A: We brought him to our precinct and informed him of his constitutional rights and
brought him to the Parañaque Community Hospital and the suspected shabu or
methylamphetamine was brought to the PNP Crime Lab at Fort Bonifacio.
Q: Did you come to know the name of that person whom you arrested in the morning of
August 20, 2002?
A: Yes, sir.
Q: What is his name?
A: Ongcoma Hadji Omar, sir.
Q: Is he the same Ongcoma Hadji Omar y Para, the accused in this case?
A: Yes, sir."
[emphasis and underscoring supplied]
Clearly, no arrest preceded the search on the person of the petitioner. When Tan and
Tangcoy allegedly saw the petitioner jaywalking, they did not arrest him but accosted him
and pointed to him the right place for crossing. In fact, according to the RTC, Tan and
Tangcoy "immediately accosted him and told him to cross [at] the designated area." 29
Tan and Tangcoy did not intend to bring the petitioner under custody or to restrain his
liberty. This lack of intent to arrest him was bolstered by the fact that there was no
criminal charge that was filed against the petitioner for crossing a "no jaywalking" area.
From Tan’s testimony, the intent to arrest the petitioner only came after they allegedly
confiscated the shabu from the petitioner, for which they informed him of his
constitutional rights and brought him to the police station.
The indispensability of the intent to arrest an accused in a warrantless search incident to
a lawful arrest was emphasized in Luz vs. People of the Philippines. 30 The Court held that
the shabu confiscated from the accused in that case was inadmissible as evidence when
the police officer who flagged him for traffic violation had no intent to arrest him.
According to the Court, due to the lack of intent to arrest, the subsequent search was
unlawful.
This is notwithstanding the fact that the accused, being caught in flagrante delicto for
violating an ordinance, could have been therefore lawfully stopped or arrested by the
apprehending officers.
In the light of the discussion above, the respondent’s argument that there was a lawful
search incident to a lawful warrantless arrest for jaywalking appears to be an
afterthought in order to justify a warrantless search conducted on the person of the
petitioner. In fact, the illegality of the search for the shabu is further highlighted when it
1avvphi1
was not recoveredimmediately after the alleged lawful arrest, if there was any, but only
after the initial search resulted in the recovery of the knife. Thereafter, according to Tan,
Tangcoy conducted another search on the person of the petitioner resulting in the
alleged confiscation of the shabu. Clearly, the petitioner's right to be secure in his person
was callously brushed aside twice by the arresting police officers. 31
The waiver of an illegal warrantless arrest does not also mean a waiver of the
inadmissibility of evidence seized during an illegal warrantless arrest.
We agree with the respondent that the petitioner did not timely object to the irregularity of
his arrest before his arraignment as required by the Rules. In addition, he actively
1âwphi1
participated in the trial of the case. As a result, the petitioner is deemed to have
submitted to the jurisdiction of the trial court, thereby curing any defect in his arrest.
However, this waiver to question an illegal arrest only affects the jurisdiction of the court
over his person. It is well-settled that a waiver of an illegal, warrantless arrest does not
carry with it a waiver of the inadmissibility of evidence seized during an illegal
warrantless arrest.32
Since the shabu was seized during an illegal arrest, its inadmissibility as evidence
precludes conviction and justifies the acquittal of the petitioner.
WHEREFORE, we GRANT the petition and REVERSE and SET ASIDE the Decision of
the Court of Appeals dated January 10, 2008, and its Resolution dated April 11, 2008 in
CA-G.R. CR No. 29364. Petitioner ONGCOMA HADJI HOMAR is ACQUITTED and
ordered immediately RELEASED from detention, unless he is confined for any other
lawful cause.
SO ORDERED.
G.R. No. 188794
HONESTO OGA YON y DIAZ, Petitioner,
vs.
PEOPLE OF THE PIDLIPPINES, Respondent.
DECISION
BRION, J.:
We resolve the petition for review on certiorari1 assailing the Decision2 dated March 31,
2009, and the Resolution3 dated July 10, 2009, of the Court of Appeals (CA) in CA-G.R.
CR No. 31154. The appealed decision affirmed the joint judgment4 dated September 5,
2007, of the Regional Trial Court (RTC), Branch 12, Ligao City, Albay, which convicted
petitioner Honesto Ogayon of violating Sections 11 and 12, Article II of Republic Act No.
9165.5
The Antecedent Facts
On December 1, 2003, two Informations were filed against Ogayon for the crimes
allegedly committed as follows:
I. Criminal Case No. 4738:
That at about 5:20 o’clock (sic) in the morning of October 2, 2003 at Barangay Iraya,
Municipality of Guinobatan, Province of Albay, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused did then and there willfully, unlawfully
and feloniously have in his possession, custody and control four (4) pcs. of small
aluminum foil, four (4) pcs. Of disposable lighter in different colors, one (1) blade
trademark "Dorco," and one (1) roll aluminum foil, instruments used or intended to be
used for smoking or consuming shabu, without authority of law, to the damage and
prejudice of the public interest and welfare. 6
II. Criminal Case No. 4739:
That at about 5:20 o’clock (sic) in the morning of October 2, 2003 at Barangay Iraya,
Municipality of Guinobatan, Province of Albay, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, with deliberate intent to violate the law,
and without authority of law, did then and there willfully, unlawfully and feloniously have
in his possession, custody and control two (2) heat-sealed transparent plastic sachets
containing 0.040 gram of methamphetamine hydrochloride (shabu), with full knowledge
that in his possession and control is a dangerous drug, to the damage and prejudice of
the public interest and welfare.7
During his arraignment in Criminal Case Nos. 4738 and 4739 on January 21, 2004, and
March 17, 2004, respectively, Ogayon denied both charges and pleaded "not guilty." The
joint pre-trial held on May 5, 2004 yielded only one factual admission on the identity of
the accused.8 A joint trial on the merits ensued.
The Prosecution Version
On October 2, 2003, at around 5:20 a.m., Police Chief Inspector Elmer Ferrera, together
with the other members of the Albay Provincial Police Office, proceeded to Ogayon’s
house in Barangay Iraya, Guinobatan, Albay, to enforce Search Warrant No. AEK 29-
2003.9The warrant was for the seizure of shabu and drug paraphernalia allegedly kept
and concealed in the premises of Ogayon’s house. Barangay Tanod Jose Lagana
(Tanod Lagana) and Kagawad Lauro Tampocao assisted the police team in conducting
the search.10
Upon reaching Ogayon’s house, the police team noticed several persons inside a nipa
hut located nearby. Suspecting that a pot session was about to be held, the police team
restrained two of the five persons and immediately proceeded to Ogayon’s house. After
introducing themselves as police officers, Senior Police Officer Herminigildo Caritos
(SPO4 Caritos) informed Ogayon that they had a warrant to search his place. SPO4
Caritos handed a copy of the warrant to Ogayon, who allowed the police team to conduct
the search.11
Led by SPO4 Caritos, some members of the police team went to the comfort room
located about five meters away from Ogayon’s house. When they searched the area,
they found an object (wrapped in a piece of paper with blue prints) that fell from the
wooden braces of the roof. Upon SPO4 Caritos’ inspection, the paper contained two (2)
small, heat-sealed transparent plastic sachets that the police team suspected to contain
shabu.
The search of the comfort room also uncovered four (4) disposable lighters, one (1) knife
measuring six inches long, used aluminum foil, one (1) roll of aluminum foil, and a
"Dorco" blade.12 SPO4 Caritos then placed his initials on the two (2) plastic sachets
before joining the rest of the police officers who were conducting a search in Ogayon’s
house. The police officers who searched Ogayon’s house found live ammunition for an
M-16 rifle.
After conducting the search, the police team prepared a Receipt of Property
Seized.13 The receipt was signed by the seizing officers, representatives from the
Department of Justice and the media, and two (2) barangay officials who were present
during the entire operation.14
The police team thereafter arrested Ogayon and the two (2) other persons who had
earlier been restrained, and brought them to Camp Simeon Ola for booking. The seized
items were likewise brought to the camp for laboratory examination. In his Chemistry
Report,15 Police Superintendent Lorlie Arroyo (forensic chemist of the Philippine National
Police Regional Crime Laboratory) reported that the two (2) plastic sachets seized from
Ogayon’s place tested positive for the presence of methamphetamine hydrochloride or
shabu.16
The Defense Version
The defense presented a different version of the events.
Testifying for himself, Ogayon disavowed any knowledge of the prohibited drugs and
claimed that he saw the seized items for the first time only when they were being
inventoried. His statements were corroborated by the testimony of his wife, Zenaida
Ogayon.
Ogayon asserted that prior to the search, he was asleep in his house. His wife Zenaida
woke him up because several policemen and barangay officials came to his house. He
claimed that the police team did not present any search warrant before conducting the
search, and it was only during trial that he saw a copy of the warrant.
He recounted that the police officers, splitting into two groups, conducted a simultaneous
search of his house and the comfort room located nearby. He noticed that SPO4 Caritos,
who was part of the group that searched the comfort room, came out and went to the
Barangay Hall. Shortly after, SPO4 Caritos returned, accompanied by Tanod Lagana.
SPO4 Caritos again went inside the comfort room, leaving Tanod Lagana waiting
outside. SPO4 Caritos thereafter came out from the comfort room and ran towards
Ogayon’s house while shouting "positive, positive."17
The RTC Ruling
On September 5, 2007, the RTC rendered a joint judgment convicting Ogayon of the two
criminal charges against him. Relying on the presumption of regularity, the RTC rejected
Ogayon’s frame-up defense. The dispositive portion of the joint judgment reads:
WHEREFORE, under the above considerations, judgment is hereby rendered as follows:
a. In Criminal Case No. 4738, accused, Honesto Ogayon y Diaz is found GUILTY
beyond reasonable doubt of Violation of Section 12, Art. II, Republic Act No.
9165, known as the "Comprehensive Dangerous Drugs Act of 2002," for his
unlawful possession of drug paraphernalia, namely: four (4) pcs. small aluminum
foil, one (1) roll aluminum foil, four (4) pcs. disposable lighters, and one (1) pc.
blade; thereby sentencing him to suffer the indeterminate penalty of
imprisonment of six (6) months and one (1) day to two (2) years and to pay a
FINE of ten thousand pesos (P10,000.00);
b. In Criminal Case No. 4739, accused, Honesto Ogayon y Diaz is found GUILTY
beyond reasonable doubt of Violation of Section 11, Art. II, Republic Act No.
9165, known as the "Comprehensive Dangerous Drugs Act of 2002," for his
unlawful possession of two (2) pcs. Small heat-sealed plastic sachets containing
methamphetamine hydrochloride or "shabu," with total net weight of 0.0400
gram; thereby, sentencing him to suffer the indeterminate penalty of
imprisonment of twelve (12) years and one (1) day to fourteen (14) years and to
pay a FINE of three hundred thousand pesos (P300,000.00). 18
Ogayon appealed to the CA. This time, he questioned the validity of the search warrant,
claiming it was improperly issued. He argued that the search warrant was defective for
lack of transcript showing that the issuing judge conducted an examination of the
applicant for search warrant and his witnesses.
The CA Ruling
In accordance with Section 5, Rule 126 of the Rules of Court, a judge must examine
under oath and in writing an applicant for search warrant and his witnesses. Although the
CA found no evidence in the records showing compliance with this requirement, it
nevertheless upheld the search warrant’s validity due to Ogayon’s failure to make a
timely objection against the warrant during the trial.
That Ogayon objected to the prosecution’s formal offer of exhibits, which included the
search warrant, was not sufficient for the CA. Ogayon merely claimed that the chemistry
report was not executed under oath, the items were not illegal per se, and that he did not
sign the Receipt of Property Seized since he was not present when the seized items
were confiscated. The CA noted that the objections were not based on constitutional
grounds, and for this reason, concluded that Ogayon is deemed to have waived the right
to question the legality of the search warrant. 19
Based on the search warrant’s validity, the CA affirmed Ogayon’s conviction for
possession of drugs and drug paraphernalia. Although the comfort room was located
outside Ogayon’s house, the CA declared that he exercised exclusive control over it and
should rightly be held responsible for the prohibited drugs and paraphernalia found there.
As with the RTC, the CA relied on the presumption of regularity of the police team’s
operation and found Ogayon’s claim of frame-up to be unsupported. The CA thus ruled
that the prosecution proved beyond reasonable doubt that Ogayon was liable for the
crimes charged.
The Issues
In the present petition, Ogayon raises the following assignment of errors:
I.
The CA erred in finding that Ogayon had waived his right to question the legality of the
search warrant.
II.
Even granting without admitting that Ogayon had already waived his right to question the
legality of the search warrant, the search conducted was still highly irregular, thereby
rendering the seized articles as inadmissible in evidence.
Ogayon primarily argues that there was a violation of his constitutional right to be secure
in his person, house, papers, and effects against unreasonable searches and seizures.
He denies waiving the right through his supposed failure to assail the search warrant’s
validity during the trial. On the contrary, he claims to have objected to the prosecution’s
formal offer of the search warrant.
Even assuming that he questioned the search warrant’s validity only during appeal,
Ogayon contends that this should not be interpreted as a waiver of his right. Since an
appeal in a criminal case throws the whole case open for review, any objection made on
appeal, though not raised before the trial court, should still be considered.
Ogayon next argues that the search conducted by the police team on his premises,
pursuant to an already defective search warrant, was highly irregular. He and his spouse
were in their house when SPO4 Caritos allegedly discovered the shabu in the comfort
room located outside their house, so they were not able to witness the search. Moreover,
he claimed that there were other persons near the premises of his house (and the
comfort room) when the search was conducted. Hence, it could not indubitably be
concluded that the seized items were under his actual and effective control and
possession.
The Court’s Ruling
The right against unreasonable searches and seizures is one of the fundamental
constitutional rights. Section 2, Article III of the Constitution, reads:
Section 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized.
[emphasis ours]
This right has been included in our Constitution since 1899 through the Malolos
Constitution20 and has been incorporated in the various organic laws governing the
Philippines during the American colonization, 21 the 1935 Constitution,22 and the 1973
Constitution.23
The protection afforded by the right is reinforced by its recognition as a fundamental
human right under the International Covenant on Civil and Political Rights and the
Universal Declaration of Human Rights,24 to both of which the Philippines is a
signatory.25 Both the Covenant and the Declaration recognize a person’s right against
arbitrary or unlawful interference with one’s privacy and property. 26
Given the significance of this right, the courts must be vigilant in preventing its stealthy
encroachment or gradual depreciation and ensure that the safeguards put in place for its
protection are observed.
Under Section 2, Article III of the Constitution, the existence of probable cause for the
issuance of a warrant is central to the right, and its existence largely depends on the
finding of the judge conducting the examination. 27 To substantiate a finding of probable
cause, the Rules of Court specifically require that –
Rule 126, Sec. 5. Examination of complainant; record. – The judge must, before issuing
the warrant, personally examine in the form of searching questions and answers, in
writing and under oath, the complainant and the witnesses he may produce on facts
personally known to them and attach to the record their sworn statem gether with the
affidavits submitted. [emphasis ours]
Ogayon’s appeal of his conviction essentially rests on his claim that the search warrant
was defective because "there was no transcript of stenographic notes of the proceedings
in which the issuing judge had allegedly propounded the required searching questions
and answers in order to determine the existence of probable cause." 28 We find that the
failure to attach to the records the depositions of the complainant and his witnesses
and/or the transcript of the judge’s examination, though contrary to the Rules, does not
by itself nullify the warrant. The requirement to attach is merely a procedural rule and not
a component of the right. Rules of procedure or statutory requirements, however salutary
they may be, cannot provide new constitutional requirements. 29
Instead, what the Constitution requires is for the judge to conduct an "examination under
oath or affirmation of the complainant and the witnesses he may produce," after which he
determines the existence of probable cause for the issuance of the warrant. The
examination requirement was originally a procedural rule found in Section 98 of General
Order No. 58,30 but was elevated as part of the guarantee of the right under the 1935
Constitution.31 The intent was to ensure that a warrant is issued not merely on the basis
of the affidavits of the complainant and his witnesses, but only after examination by the
judge of the complainant and his witnesses. As the same examination requirement was
adopted in the present Constitution, we declared that affidavits of the complainant and
his witnesses are insufficient to establish the factual basis for probable cause. 32 Personal
examination by the judge of the applicant and his witnesses is indispensable, and the
examination should be probing and exhaustive, notmerely routinary or a rehash of the
affidavits.33
The Solicitor General argues that the lack of depositions and transcript does not
necessarily indicate that no examination was made by the judge who issued the warrant
in compliance with the constitutional requirement.
True, since in People v. Tee,34 we declared that –
[T]he purpose of the Rules in requiring depositions to be taken is to satisfy the examining
magistrate as to the existence of probable cause. The Bill of Rights does not make it an
1âwphi1
imperative necessity that depositions be attached to the records of an application for a
search warrant. Hence, said omission is not necessarily fatal, for as long as there is
evidence on the record showing what testimony was presented. 35
Ideally, compliance with the examination requirement is shown by the depositions and
the transcript. In their absence, however, a warrant may still be upheld if there is
evidence in the records that the requisite examination was made and probable cause
was based thereon. There must be, in the records, particular facts and circumstances
that were considered by the judge as sufficient to make an independent evaluation of the
existence of probable cause to justify the issuance of the search warrant. 36
The Solicitor General claims that, notwithstanding the absence of depositions and
transcripts, the records indicate an examination was conducted. In fact, a statement in
the search warrant itself attests to this:
Search Warrant
xxxx
GREETINGS:
It appearing to the satisfaction of the undersigned after examination under oath of the
applicant and his witnesses that there is probable cause to believe that respondent,
without authority of law, has under his possession and control the following articles to wit:
---Methamphetamine Hydrochloride "Shabu" and paraphernalia which are kept and
concealed in the premises of his house particularly in the kitchen and in the CR outside
his house both encircled with a red ballpen, as described in the sketch attached to the
Application for Search Warrant, located at Bgy. Iraya, Guinobatan, Albay. 37 (emphasis
and underscore ours)
Generally, a judge’s determination of probable cause for the issuance of a search
warrant is accorded great deference by a reviewing court, so long as there was
substantial basis for that determination. 38 "Substantial basis means that the questions of
the examining judge brought out such facts and circumstances as would lead a
reasonably discreet and prudent man to believe that an offense has been committed,
and the objects in connection with the offense sought to be seized are in the place
sought to be searched."39
Apart from the statement in the search warrant itself, we find nothing in the
records of this case indicating that the issuing judge personally and thoroughly
examined the applicant and his witnesses. The absence of depositions and
transcripts of the examination was already admitted; the application for the search
warrant and the affidavits, although acknowledged by Ogayon himself, 40 could not be
found in the records. Unlike in Tee, where the testimony given during trial revealed that
an extensive examination of the applicant’s witness was made by the judge issuing the
warrant, the testimonies given during Ogayon’s trial made no reference to the application
for the search warrant. SPO4 Caritos testified that he was among those who conducted
the surveillance before the application for a search warrant was made. However, he was
not the one who applied for the warrant; in fact, he testified that he did not know who
applied for it.41
The records, therefore, bear no evidence from which we can infer that the requisite
examination was made, and from which the factual basis for probable cause to
issue the search warrant was derived. A search warrant must conform strictly to the
constitutional requirements for its issuance; otherwise, it is void. Based on the lack of
substantial evidence that the search warrant was issued after the requisite examination
of the complainant and his witnesses was made, the Court declares Search Warrant No.
AEK 29-2003 a nullity.
The nullity of the search warrant prevents the Court from considering Ogayon’s belated
objections thereto.
The CA declared that Ogayon had waived the protection of his right against
unreasonable searches and seizures due to his failure to make a timely objection against
the search warrant’s validity before the trial court. It based its ruling on the procedural
rule that any objections to the legality of the search warrant should be made during the
trial of the case. Section 14, Rule 126 of the Rules of Court provides the manner to
quash a search warrant or to suppress evidence obtained thereby:
Section 14. Motion to quash a search warrant or to suppress evidence; where to file. —
A motion to quash a search warrant and/or to suppress evidence obtained thereby may
be filed in and acted upon only by the court where the action has been instituted. If no
criminal action has been instituted, the motion may be filed in and resolved by the court
that issued the search warrant. However, if such court failed to resolve the motion and a
criminal case is subsequently filed in another court, the motion shall be resolved by the
latter court. [emphasis ours]
We find the CA’s casual treatment of a fundamental right distressing. It prioritized
compliance with a procedural rule over compliance with the safeguards for a
constitutional right. Procedural rules can neither diminish nor modify substantial
rights;42 their non-compliance should therefore not serve to validate a warrant that was
issued in disregard of the constitutional requirements. As mentioned, the existence of
probable cause determined after examination by the judge of the complainant and his
witnesses is central to the guarantee of Section 2, Article III of the Constitution. The ends
of justice are better served if the supremacy of the constitutional right against
unreasonable searches and seizures is preserved over technical rules of procedure.
Moreover, the courts should indulge every reasonable presumption against waiver of
fundamental constitutional rights; we should not presume acquiescence in the loss of
fundamental rights.43 In People v. Decierdo,44 the Court declared that "[w]henever a
protection given by the Constitution is waived by the person entitled to that protection,
the presumption is always against the waiver." The relinquishment of a constitutional
right has to be laid out convincingly.
In this case, the only evidence that Ogayon waived his constitutional right was his failure
to make a timely motion during the trial to quash the warrant and to suppress the
presentation of the seized items as evidence. This failure alone, to our mind, is not a
sufficient indication that Ogayon clearly, categorically, knowingly, and intelligently made
a waiver.45 He cannot reasonably be expected to know the warrant’s defect for lack of
data in the records suggesting that defect existed. It would thus be unfair to construe
Ogayon’s failure to object as a waiver of his constitutional right. In People v.
Bodoso,46 the Court noted that "[i]n criminal cases where life, liberty and property are all
at stake… The standard of waiver requires that it ‘not only must be voluntary, but must
be knowing, intelligent, and done with sufficient awareness of the relevant circumstances
and likely consequences.’"
At this point, we note the purpose for the enactment of Section 14, Rule 126 of the Rules
of Court – a relatively new provision incorporated in A.M. No. 00-5-03-SC or the Revised
Rules of Criminal Procedure (effective December 1, 2000). The provision was derived
from the policy guidelines laid down by the Court in Malaloan v. Court of Appeals 47 to
resolve the main issue of where motions to quash search warrants should be filed. In
other words, the provision was "intended to resolve what is perceived as conflicting
decisions on where to file a motion to quash a search warrant or to suppress evidence
seized by virtue thereof…."48 It was certainly not intended to preclude belated objections
against the search warrant’s validity, especially if the grounds therefor are not
immediately apparent. Thus, Malaloan instructs that "all grounds and objections then
available, existent or known shall be raised in the original or subsequent proceedings for
the quashal of the warrant, otherwise they shall be deemed waived," and that "a motion
to quash shall consequently be governed by the omnibus motion rule, provided,
however, that objections not available, existent or known during the proceedings for the
quashal of the warrant may be raised in the hearing of the motion to suppress."
A closer reading of the cases where the Court supposedly brushed aside belated
objections would reveal that the objections were disregarded because they had been
cured or addressed based on the records.
In Demaisip v. Court of Appeals,49 the accused asserted that the search warrant was
never produced in court, thus suggesting its absence. The Court, however, noted that
"there were supposed testimonies of its existence."
In People v. Tee,50 the accused claimed that the issuing judge failed to exhaustively
examine the complainant and his witnesses, and that the complainant’s witness (a
National Bureau of Intelligence operative) had no personal knowledge of the facts
comprising probable cause, but the Court brushed these claims aside. It found that the
witness’ knowledge of the facts supporting probable case was not based on hearsay as
he himself assisted the accused in handling the contraband, and that the issuing judge
extensively questioned this witness. In People v. Torres, 51 the accused assailed the
validity of the search conducted pursuant to a search warrant as it was supposedly made
without the presence of at least two witnesses, but the Court found otherwise, citing the
testimonies taken during the trial contradicting this claim. A similar objection was made
by the accused in People v. Nuñez,52 but the Court noted the testimony of the officer
conducting the search who stated that it was made in the presence of the accused
himself and two barangay officials.
The rulings in Malaloan v. Court of Appeals,53 People v. Court of Appeals,54 and People v.
Correa55 are without significance to the present case. As mentioned, Malaloan v. Court of
Appeals involved the question of where motions to quash search warrants should be
filed, and the guidelines set therein was applied in People v. Court of Appeals. People v.
Correa, on the other hand, involved a warrantless search of a moving vehicle.
We reiterate that the requirement to raise objections against search warrants during trial
is a procedural rule established by jurisprudence. Compliance or noncompliance with this
requirement cannot in any way diminish the constitutional guarantee that a search
warrant should be issued upon a finding of probable cause. Ogayon’s failure to make a
1âwphi1
timely objection cannot serve to cure the inherent defect of the warrant. To uphold the
validity of the void warrant would be to disregard one of the most fundamental rights
guaranteed in our Constitution.
In the light of the nullity of Search Warrant No. AEK 29-2003, the search conducted on
its authority is likewise null and void. Under the Constitution, any evidence obtained in
violation of a person’s right against unreasonable searches and seizures shall be
inadmissible for any purpose in any proceeding. 56 With the inadmissibility of the drugs
seized from Ogayon' s home, there is no more evidence to support his conviction. Thus,
we see no reason to further discuss the other issues raised in this petition.
WHEREFORE, under these premises, the Decision dated March 31, 2009, and the
Resolution dated July 10, 2009, of the Court of Appeals in CA-G.R. CR No. 31154 are
REVERSED and SET ASIDE. Accordingly, the judgment of conviction, as stated in the
joint judgment dated September 5, 2007, of the Regional Trial Court, Branch 12, Lig ity,
Albay, in Criminal Case Nos. 4738 and 4739, is REVERSED and SET ASIDE, and
petitioner HONESTO OGA YON y DIAZ is ACQUITTED of the criminal charges against
him for violation of Republic Act No. 9165.
SO ORDERED.
G.R. No. 202666 September 29, 2014
RHONDA AVE S. VIVARES and SPS. MARGARITA and DAVID SUZARA, Petitioners,
vs.
ST. THERESA'S COLLEGE, MYLENE RHEZA T. ESCUDERO, and JOHN
DOES, Respondents.
DECISION
VELASCO, JR., J.:
The individual's desire for privacy is never absolute, since participation in society is an
equally powerful desire. Thus each individual is continually engaged in a personal
adjustment process in which he balances the desire for privacy with the desire for
disclosure and communication of himself to others, in light of the environmental
conditions and social norms set by the society in which he lives.
- Alan Westin, Privacy and Freedom (1967)
The Case
Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, in
relation to Section 19 of A.M. No. 08-1-16-SC,1 otherwise known as the "Rule on the Writ
of Habeas Data." Petitioners herein assail the July 27, 2012 Decision2 of the Regional
Trial Court, Branch 14 in Cebu City (RTC) in SP. Proc. No. 19251-CEB, which dismissed
their habeas data petition.
The Facts
Nenita Julia V. Daluz (Julia) and Julienne Vida Suzara (Julienne), both minors, were,
during the period material, graduating high school students at St. Theresa's College
(STC), Cebu City. Sometime in January 2012, while changing into their swimsuits for a
beach party they were about to attend, Julia and Julienne, along with several others, took
digital pictures of themselves clad only in their undergarments. These pictures were then
uploaded by Angela Lindsay Tan (Angela) on her Facebook 3 profile.
Back at the school, Mylene Rheza T. Escudero (Escudero), a computer teacher at STC’s
high school department, learned from her students that some seniors at STC posted
pictures online, depicting themselves from the waist up, dressed only in brassieres.
Escudero then asked her students if they knew who the girls in the photos are. In turn,
they readily identified Julia, Julienne, and Chloe Lourdes Taboada (Chloe), among
others.
Using STC’s computers, Escudero’s students logged in to their respective personal
Facebook accounts and showed her photos of the identified students, which include: (a)
Julia and Julienne drinking hard liquor and smoking cigarettes inside a bar; and (b) Julia
and Julienne along the streets of Cebu wearing articles of clothing that show virtually the
entirety of their black brassieres. What is more, Escudero’s students claimed that there
were times when access to or the availability of the identified students’ photos was not
confined to the girls’ Facebook friends, 4 but were, in fact, viewable by any Facebook
user.5
Upon discovery, Escudero reported the matter and, through one of her student’s
Facebook page, showed the photosto Kristine Rose Tigol (Tigol), STC’s Discipline-in-
Charge, for appropriate action. Thereafter, following an investigation, STC found the
identified students to have deported themselves in a manner proscribed by the school’s
Student Handbook, to wit:
1. Possession of alcoholic drinks outside the school campus;
2. Engaging in immoral, indecent, obscene or lewd acts;
3. Smoking and drinking alcoholicbeverages in public places;
4. Apparel that exposes the underwear;
5. Clothing that advocates unhealthy behaviour; depicts obscenity; contains
sexually suggestive messages, language or symbols; and 6. Posing and
uploading pictures on the Internet that entail ample body exposure.
On March 1, 2012, Julia, Julienne, Angela, and the other students in the pictures in
question, reported, as required, to the office of Sr. Celeste Ma. Purisima Pe (Sr.
Purisima), STC’s high school principal and ICM6 Directress. They claimed that during the
meeting, they were castigated and verbally abused by the STC officials present in the
conference, including Assistant Principal Mussolini S. Yap (Yap), Roswinda Jumiller, and
Tigol. What is more, Sr. Purisima informed their parents the following day that, as part of
their penalty, they are barred from joining the commencement exercises scheduled on
March 30, 2012.
A week before graduation, or on March 23, 2012, Angela’s mother, Dr. Armenia M. Tan
(Tan), filed a Petition for Injunction and Damages before the RTC of Cebu City against
STC, et al., docketed as Civil Case No. CEB-38594.7 In it, Tan prayed that defendants
therein be enjoined from implementing the sanction that precluded Angela from joining
the commencement exercises.
On March 25, 2012,petitioner Rhonda Ave Vivares (Vivares), the mother of Julia, joined
the fray as an intervenor. On March 28, 2012, defendants inCivil Case No. CEB-38594
filed their memorandum, containing printed copies of the photographs in issue as
annexes. That same day, the RTC issued a temporary restraining order (TRO) allowing
the students to attend the graduation ceremony, to which STC filed a motion for
reconsideration.
Despite the issuance of the TRO,STC, nevertheless, barred the sanctioned students
from participating in the graduation rites, arguing that, on the date of the commencement
exercises, its adverted motion for reconsideration on the issuance ofthe TRO remained
unresolved.
Thereafter, petitioners filed before the RTC a Petition for the Issuance of a Writ of
Habeas Data, docketed as SP. Proc. No. 19251-CEB8 on the basis of the following
considerations:
1. The photos of their children in their undergarments (e.g., bra) were taken for
posterity before they changed into their swimsuits on the occasion of a birthday
beach party;
2. The privacy setting of their children’s Facebook accounts was set at "Friends
Only." They, thus, have a reasonable expectation of privacy which must be
respected.
3. Respondents, being involved in the field of education, knew or ought to have
known of laws that safeguard the right to privacy. Corollarily, respondents knew
or ought to have known that the girls, whose privacy has been invaded, are the
victims in this case, and not the offenders. Worse, after viewing the photos, the
minors were called "immoral" and were punished outright;
4. The photos accessed belong to the girls and, thus, cannot be used and
reproduced without their consent. Escudero, however, violated their rights by
saving digital copies of the photos and by subsequently showing them to STC’s
officials. Thus, the Facebook accounts of petitioners’ children were intruded
upon;
5. The intrusion into the Facebook accounts, as well as the copying of
information, data, and digital images happened at STC’s Computer Laboratory;
and
6. All the data and digital images that were extracted were boldly broadcasted by
respondents through their memorandum submitted to the RTC in connection with
Civil Case No. CEB-38594. To petitioners, the interplay of the foregoing
 constitutes an invasion of their children’s privacy and, thus, prayed that: (a) a writ
of habeas databe issued; (b) respondents be ordered to surrender and deposit
with the court all soft and printed copies of the subjectdata before or at the
preliminary hearing; and (c) after trial, judgment be rendered declaring all
information, data, and digital images accessed, saved or stored, reproduced,
spread and used, to have been illegally obtained inviolation of the children’s right
to privacy.
Finding the petition sufficient in form and substance, the RTC, through an Order dated
July 5, 2012, issued the writ of habeas data. Through the same Order, herein
respondents were directed to file their verified written return, together with the supporting
affidavits, within five (5) working days from service of the writ.
In time, respondents complied with the RTC’s directive and filed their verified written
return, laying down the following grounds for the denial of the petition, viz: (a) petitioners
are not the proper parties to file the petition; (b) petitioners are engaging in forum
shopping; (c) the instant case is not one where a writ of habeas data may issue;and (d)
there can be no violation of their right to privacy as there is no reasonable expectation of
privacy on Facebook.
Ruling of the Regional Trial Court
On July 27, 2012, the RTC rendered a Decision dismissing the petition for habeas data.
The dispositive portion of the Decision pertinently states:
WHEREFORE, in view of the foregoing premises, the Petition is hereby DISMISSED.
The parties and media must observe the aforestated confidentiality.
xxxx
SO ORDERED.9
To the trial court, petitioners failed to prove the existence of an actual or threatened
violation of the minors’ right to privacy, one of the preconditions for the issuance of the
writ of habeas data. Moreover, the court a quoheld that the photos, having been
uploaded on Facebook without restrictions as to who may view them, lost their privacy in
some way. Besides, the RTC noted, STC gathered the photographs through legal means
and for a legal purpose, that is, the implementation of the school’s policies and rules on
discipline.
Not satisfied with the outcome, petitioners now come before this Court pursuant to
Section 19 of the Rule on Habeas Data. 10
The Issues
The main issue to be threshed out inthis case is whether or not a writ of habeas
datashould be issued given the factual milieu. Crucial in resolving the controversy,
however, is the pivotal point of whether or not there was indeed an actual or threatened
violation of the right to privacy in the life, liberty, or security of the minors involved in this
case.
Our Ruling
We find no merit in the petition.
Procedural issues concerning the availability of the Writ of Habeas Data
The writ of habeas datais a remedy available to any person whose right to privacy in life,
liberty or security is violated or threatened by an unlawful act or omission of a public
official or employee, or of a private individual or entity engaged in the gathering,
collecting or storing of data or information regarding the person, family, home and
correspondence of the aggrieved party.11 It is an independent and summary remedy
designed to protect the image, privacy, honor, information, and freedom of information of
an individual, and to provide a forum to enforce one’s right to the truth and to
informational privacy. It seeks to protect a person’s right to control information regarding
oneself, particularly in instances in which such information is being collected through
unlawful means in order to achieve unlawful ends. 12
In developing the writ of habeas data, the Court aimed to protect an individual’s right to
informational privacy, among others. A comparative law scholar has, in fact, defined
habeas dataas "a procedure designed to safeguard individual freedom from abuse in the
information age."13 The writ, however, will not issue on the basis merely of an alleged
unauthorized access to information about a person.Availment of the writ requires the
existence of a nexus between the right to privacy on the one hand, and the right to life,
liberty or security on the other.14 Thus, the existence of a person’s right to informational
privacy and a showing, at least by substantial evidence, of an actual or threatened
violation of the right to privacy in life, liberty or security of the victim are indispensable
before the privilege of the writ may be extended. 15
Without an actionable entitlement in the first place to the right to informational privacy, a
habeas datapetition will not prosper. Viewed from the perspective of the case at bar,this
requisite begs this question: given the nature of an online social network (OSN)––(1) that
it facilitates and promotes real-time interaction among millions, if not billions, of users,
sans the spatial barriers,16 bridging the gap created by physical space; and (2) that any
information uploaded in OSNs leavesan indelible trace in the provider’s databases, which
are outside the control of the end-users––is there a right to informational privacy in OSN
activities of its users? Before addressing this point, We must first resolve the procedural
issues in this case.
a. The writ of habeas data is not only confined to cases of extralegal killings and
enforced disappearances
Contrary to respondents’ submission, the Writ of Habeas Datawas not enacted solely for
the purpose of complementing the Writ of Amparoin cases of extralegal killings and
enforced disappearances.
Section 2 of the Rule on the Writ of Habeas Data provides:
Sec. 2. Who May File. – Any aggrieved party may file a petition for the writ of habeas
data. However, in cases of extralegal killings and enforced disappearances, the petition
may be filed by:
(a) Any member of the immediate family of the aggrieved party, namely: the
spouse, children and parents; or
(b) Any ascendant, descendant or collateral relative of the aggrieved party within
the fourth civil degreeof consanguinity or affinity, in default of those mentioned in
the preceding paragraph. (emphasis supplied)
Had the framers of the Rule intended to narrow the operation of the writ only to cases of
extralegal killings or enforced disappearances, the above underscored portion of Section
2, reflecting a variance of habeas data situations, would not have been made.
Habeas data, to stress, was designed "to safeguard individual freedom from abuse in the
information age."17 As such, it is erroneous to limit its applicability to extralegal killings
and enforced disappearances only. In fact, the annotations to the Rule preparedby the
Committee on the Revision of the Rules of Court, after explaining that the Writ of Habeas
Data complements the Writ of Amparo, pointed out that:
The writ of habeas data, however, can be availed of as an independent remedy to
enforce one’s right to privacy, more specifically the right to informational privacy. The
remedies against the violation of such right can include the updating, rectification,
suppression or destruction of the database or information or files in possession or in
control of respondents.18 (emphasis Ours) Clearly then, the privilege of the Writ of
Habeas Datamay also be availed of in cases outside of extralegal killings and enforced
disappearances.
b. Meaning of "engaged" in the gathering, collecting or storing of data or information
Respondents’ contention that the habeas data writ may not issue against STC, it not
being an entity engaged in the gathering, collecting or storing of data or information
regarding the person, family, home and correspondence of the aggrieved party, while
valid to a point, is, nonetheless, erroneous.
To be sure, nothing in the Rule would suggest that the habeas data protection shall be
available only against abuses of a person or entity engaged in the businessof gathering,
storing, and collecting of data. As provided under Section 1 of the Rule:
Section 1. Habeas Data. – The writ of habeas datais a remedy available to any person
whose right to privacy in life, liberty or security is violated or threatened by an unlawful
act or omission of a public official or employee, or of a private individual or entity
engaged in the gathering, collecting or storing of data or information regarding the
person, family, home and correspondence of the aggrieved party. (emphasis Ours)
The provision, when taken in its proper context, as a whole, irresistibly conveys the idea
that habeas data is a protection against unlawful acts or omissions of public officials and
of private individuals or entities engaged in gathering, collecting, or storing data about
the aggrieved party and his or her correspondences, or about his or her family. Such
individual or entity need not be in the business of collecting or storing data.
To "engage" in something is different from undertaking a business endeavour. To
"engage" means "to do or take part in something." 19 It does not necessarily mean that the
activity must be done in pursuit of a business. What matters is that the person or entity
must be gathering, collecting or storing said data or information about the aggrieved
party or his or her family. Whether such undertaking carries the element of regularity, as
when one pursues a business, and is in the nature of a personal endeavour, for any
other reason or even for no reason at all, is immaterial and such will not prevent the writ
from getting to said person or entity.
To agree with respondents’ above argument, would mean unduly limiting the reach of the
writ to a very small group, i.e., private persons and entities whose business is data
gathering and storage, and in the process decreasing the effectiveness of the writ asan
instrument designed to protect a right which is easily violated in view of rapid
advancements in the information and communications technology––a right which a great
majority of the users of technology themselves are not capable of protecting.
Having resolved the procedural aspect of the case, We now proceed to the core of the
controversy.
The right to informational privacy on Facebook
a. The Right to Informational Privacy
The concept of privacyhas, through time, greatly evolved, with technological
advancements having an influential part therein. This evolution was briefly recounted in
former Chief Justice Reynato S. Puno’s speech, The Common Right to Privacy, 20 where
he explained the three strands of the right to privacy, viz: (1) locational or situational
privacy;21 (2) informational privacy; and (3) decisional privacy. 22 Of the three, what is
relevant to the case at bar is the right to informational privacy––usually defined as the
right of individuals to control information about themselves.23
With the availability of numerous avenues for information gathering and data sharing
nowadays, not to mention each system’s inherent vulnerability to attacks and intrusions,
there is more reason that every individual’s right to control said flow of information should
be protected and that each individual should have at least a reasonable expectation of
privacy in cyberspace. Several commentators regarding privacy and social networking
sites, however, all agree that given the millions of OSN users, "[i]n this [Social
Networking] environment, privacy is no longer grounded in reasonable expectations, but
rather in some theoretical protocol better known as wishful thinking." 24
It is due to this notion that the Court saw the pressing need to provide for judicial
remedies that would allow a summary hearing of the unlawful use of data or information
and to remedy possible violations of the right to privacy. 25 In the same vein, the South
African High Court, in its Decision in the landmark case, H v. W,26 promulgated on
January30, 2013, recognized that "[t]he law has to take into account the changing
realities not only technologically but also socially or else it will lose credibility in the eyes
of the people. x x x It is imperative that the courts respond appropriately to changing
times, acting cautiously and with wisdom." Consistent with this, the Court, by developing
what may be viewed as the Philippine model of the writ of habeas data, in effect,
recognized that, generally speaking, having an expectation of informational privacy is not
necessarily incompatible with engaging in cyberspace activities, including those that
occur in OSNs.
The question now though is up to whatextent is the right to privacy protected in OSNs?
Bear in mind that informational privacy involves personal information. At the same time,
the very purpose of OSNs is socializing––sharing a myriad of information,27 some of
which would have otherwise remained personal.
b. Facebook’s Privacy Tools: a response to the clamor for privacy in OSN activities
Briefly, the purpose of an OSN is precisely to give users the ability to interact and to stay
connected to other members of the same or different social media platform through the
sharing of statuses, photos, videos, among others, depending on the services provided
by the site. It is akin to having a room filled with millions of personal bulletin boards or
"walls," the contents of which are under the control of each and every user. In his or her
bulletin board, a user/owner can post anything––from text, to pictures, to music and
videos––access to which would depend on whether he or she allows one, some or all of
the other users to see his or her posts. Since gaining popularity, the OSN phenomenon
has paved the way to the creation of various social networking sites, includingthe one
involved in the case at bar, www.facebook.com (Facebook), which, according to its
developers, people use "to stay connected with friends and family, to discover what’s
going on in the world, and to share and express what matters to them." 28
Facebook connections are established through the process of "friending" another user.
By sending a "friend request," the user invites another to connect their accounts so that
they can view any and all "Public" and "Friends Only" posts of the other.Once the
request is accepted, the link is established and both users are permitted to view the other
user’s "Public" or "Friends Only" posts, among others. "Friending," therefore, allows the
user to form or maintain one-to-one relationships with other users, whereby the user
gives his or her "Facebook friend" access to his or her profile and shares certain
information to the latter.29
To address concerns about privacy,30 but without defeating its purpose, Facebook was
armed with different privacy tools designed to regulate the accessibility of a user’s
profile31 as well as information uploaded by the user. In H v. W,32 the South Gauteng High
Court recognized this ability of the users to "customize their privacy settings," but did so
with this caveat: "Facebook states in its policies that, although it makes every effort to
protect a user’s information, these privacy settings are not foolproof."33
For instance, a Facebook user canregulate the visibility and accessibility of digital
images(photos), posted on his or her personal bulletin or "wall," except for the
user’sprofile picture and ID, by selecting his or her desired privacy setting:
(a) Public - the default setting; every Facebook user can view the photo;
(b) Friends of Friends - only the user’s Facebook friends and their friends can
view the photo;
(b) Friends - only the user’s Facebook friends can view the photo;
(c) Custom - the photo is made visible only to particular friends and/or networks
of the Facebook user; and
(d) Only Me - the digital image can be viewed only by the user.
The foregoing are privacy tools, available to Facebook users, designed to set up barriers
to broaden or limit the visibility of his or her specific profile content, statuses, and photos,
among others, from another user’s point of view. In other words, Facebook extends its
users an avenue to make the availability of their Facebook activities reflect their choice
as to "when and to what extent to disclose facts about [themselves] – and to put others in
the position of receiving such confidences." 34 Ideally, the selected setting will be based on
one’s desire to interact with others, coupled with the opposing need to withhold certain
information as well as to regulate the spreading of his or her personal information.
Needless to say, as the privacy setting becomes more limiting, fewer Facebook users
can view that user’s particular post.
STC did not violate petitioners’ daughters’ right to privacy
Without these privacy settings, respondents’ contention that there is no reasonable
expectation of privacy in Facebook would, in context, be correct. However, such is not
the case. It is through the availability of said privacy tools that many OSN users are said
to have a subjective expectation that only those to whomthey grant access to their profile
will view the information they post or upload thereto. 35
This, however, does not mean thatany Facebook user automatically has a protected
expectation of privacy inall of his or her Facebook activities.
Before one can have an expectation of privacy in his or her OSN activity, it is first
necessary that said user, in this case the children of petitioners,manifest the intention to
keepcertain posts private, through the employment of measures to prevent access
thereto or to limit its visibility.36 And this intention can materialize in cyberspace through
the utilization of the OSN’s privacy tools. In other words, utilization of these privacy tools
is the manifestation,in cyber world, of the user’s invocation of his or her right to
informational privacy.37
Therefore, a Facebook user who opts to make use of a privacy tool to grant or deny
access to his or her post orprofile detail should not be denied the informational privacy
right which necessarily accompanies said choice. 38 Otherwise, using these privacy tools
would be a feckless exercise, such that if, for instance, a user uploads a photo or any
personal information to his or her Facebook page and sets its privacy level at "Only Me"
or a custom list so that only the user or a chosen few can view it, said photo would still
be deemed public by the courts as if the user never chose to limit the photo’s visibility
and accessibility. Such position, if adopted, will not only strip these privacy tools of their
function but it would also disregard the very intention of the user to keep said photo or
information within the confines of his or her private space.
We must now determine the extent that the images in question were visible to other
Facebook users and whether the disclosure was confidential in nature. In other words,
did the minors limit the disclosure of the photos such that the images were kept within
their zones of privacy? This determination is necessary in resolving the issue of whether
the minors carved out a zone of privacy when the photos were uploaded to Facebook so
that the images will be protected against unauthorized access and disclosure.
Petitioners, in support of their thesis about their children’s privacy right being violated,
insist that Escudero intruded upon their children’s Facebook accounts, downloaded
copies ofthe pictures and showed said photos to Tigol. To them, this was a breach of the
minors’ privacy since their Facebook accounts, allegedly, were under "very private" or
"Only Friends" setting safeguarded with a password. 39 Ultimately, they posit that their
children’s disclosure was only limited since their profiles were not open to public viewing.
Therefore, according to them, people who are not their Facebook friends, including
respondents, are barred from accessing said post without their knowledge and consent.
Aspetitioner’s children testified, it was Angelawho uploaded the subjectphotos which
were only viewable by the five of them,40 although who these five are do not appear on
the records.
Escudero, on the other hand, stated in her affidavit 41 that "my students showed me some
pictures of girls cladin brassieres. This student [sic] of mine informed me that these are
senior high school [students] of STC, who are their friends in [F]acebook. x x x They then
said [that] there are still many other photos posted on the Facebook accounts of these
girls. At the computer lab, these students then logged into their Facebook account [sic],
and accessed from there the various photographs x x x. They even told me that there
had been times when these photos were ‘public’ i.e., not confined to their friends in
Facebook."
In this regard, We cannot give muchweight to the minors’ testimonies for one key reason:
failure to question the students’ act of showing the photos to Tigol disproves their
allegation that the photos were viewable only by the five of them. Without any evidence
to corroborate their statement that the images were visible only to the five of them, and
without their challenging Escudero’s claim that the other students were able to view the
photos, their statements are, at best, self-serving, thus deserving scant consideration. 42
It is well to note that not one of petitioners disputed Escudero’s sworn account that her
students, who are the minors’ Facebook "friends," showed her the photos using their own
Facebook accounts. This only goes to show that no special means to be able to viewthe
allegedly private posts were ever resorted to by Escudero’s students, 43 and that it is
reasonable to assume, therefore, that the photos were, in reality, viewable either by (1)
their Facebook friends, or (2) by the public at large.
Considering that the default setting for Facebook posts is"Public," it can be surmised that
the photographs in question were viewable to everyone on Facebook, absent any proof
that petitioners’ children positively limited the disclosure of the photograph. If suchwere
the case, they cannot invoke the protection attached to the right to informational privacy.
The ensuing pronouncement in US v. Gines-Perez44 is most instructive:
[A] person who places a photograph on the Internet precisely intends to forsake and
renounce all privacy rights to such imagery, particularly under circumstances suchas
here, where the Defendant did not employ protective measures or devices that would
have controlled access to the Web page or the photograph itself. 45
Also, United States v. Maxwell46 held that "[t]he more open the method of transmission is,
the less privacy one can reasonably expect. Messages sent to the public at large inthe
chat room or e-mail that is forwarded from correspondent to correspondent loses any
semblance of privacy."
That the photos are viewable by "friends only" does not necessarily bolster the
petitioners’ contention. In this regard, the cyber community is agreed that the digital
images under this setting still remain to be outside the confines of the zones of privacy in
view of the following:
(1) Facebook "allows the world to be more open and connected by giving its
users the tools to interact and share in any conceivable way;" 47
(2) A good number of Facebook users "befriend" other users who are total
strangers;48
(3) The sheer number of "Friends" one user has, usually by the hundreds; and
(4) A user’s Facebook friend can "share"49 the former’s post, or "tag"50 others who
are not Facebook friends with the former, despite its being visible only tohis or
her own Facebook friends.
It is well to emphasize at this point that setting a post’s or profile detail’s privacy to
"Friends" is no assurance that it can no longer be viewed by another user who is not
Facebook friends with the source of the content. The user’s own Facebook friend can
share said content or tag his or her own Facebook friend thereto, regardless of whether
the user tagged by the latter is Facebook friends or not with the former. Also, when the
post is shared or when a person is tagged, the respective Facebook friends of the person
who shared the post or who was tagged can view the post, the privacy setting of which
was set at "Friends."
To illustrate, suppose A has 100 Facebook friends and B has 200. A and B are not
Facebook friends. If C, A’s Facebook friend, tags B in A’s post, which is set at "Friends,"
the initial audience of 100 (A’s own Facebook friends) is dramatically increased to 300
(A’s 100 friends plus B’s 200 friends or the public, depending upon B’s privacy setting).
As a result, the audience who can view the post is effectively expanded––and to a very
large extent.
This, along with its other features and uses, is confirmation of Facebook’s proclivity
towards user interaction and socialization rather than seclusion or privacy, as it
encourages broadcasting of individual user posts. In fact, it has been said that OSNs
have facilitated their users’ self-tribute, thereby resulting into the "democratization of
fame."51 Thus, it is suggested, that a profile, or even a post, with visibility set at "Friends
Only" cannot easily, more so automatically, be said to be "very private," contrary to
petitioners’ argument.
As applied, even assuming that the photos in issue are visible only to the sanctioned
students’ Facebook friends, respondent STC can hardly be taken to task for the
perceived privacy invasion since it was the minors’ Facebook friends who showed the
pictures to Tigol. Respondents were mere recipients of what were posted. They did not
resort to any unlawful means of gathering the information as it was voluntarily given to
them by persons who had legitimate access to the said posts. Clearly, the fault, if any,
lies with the friends of the minors. Curiously enough, however, neither the minors nor
their parents imputed any violation of privacy against the students who showed the
images to Escudero.
Furthermore, petitioners failed to prove their contention that respondents reproduced and
broadcasted the photographs. In fact, what petitioners attributed to respondents as an
act of offensive disclosure was no more than the actuality that respondents appended
said photographs in their memorandum submitted to the trial court in connection with
Civil Case No. CEB-38594.52 These are not tantamount to a violation of the minor’s
informational privacy rights, contrary to petitioners’ assertion.
In sum, there can be no quibbling that the images in question, or to be more precise, the
photos of minor students scantily clad, are personal in nature, likely to affect, if
indiscriminately circulated, the reputation of the minors enrolled in a conservative
institution. However, the records are bereft of any evidence, other than bare assertions
that they utilized Facebook’s privacy settings to make the photos visible only to them or
to a select few. Without proof that they placed the photographs subject of this case within
the ambit of their protected zone of privacy, they cannot now insist that they have an
expectation of privacy with respect to the photographs in question.
Had it been proved that the access tothe pictures posted were limited to the original
uploader, through the "Me Only" privacy setting, or that the user’s contact list has been
screened to limit access to a select few, through the "Custom" setting, the result may
have been different, for in such instances, the intention to limit access to the particular
post, instead of being broadcasted to the public at large or all the user’s friends en
masse, becomes more manifest and palpable.
On Cyber Responsibility
It has been said that "the best filter is the one between your children’s ears." 53 This
means that self-regulation on the part of OSN users and internet consumers ingeneral is
the best means of avoiding privacy rights violations. 54 As a cyberspace
communitymember, one has to be proactive in protecting his or her own privacy. 55 It is in
this regard that many OSN users, especially minors, fail.Responsible social networking
or observance of the "netiquettes"56 on the part of teenagers has been the concern of
many due to the widespreadnotion that teenagers can sometimes go too far since they
generally lack the people skills or general wisdom to conduct themselves sensibly in a
public forum.57
Respondent STC is clearly aware of this and incorporating lessons on good cyber
citizenship in its curriculum to educate its students on proper online conduct may be
mosttimely. Too, it is not only STC but a number of schools and organizations have
already deemed it important to include digital literacy and good cyber citizenshipin their
respective programs and curricula in view of the risks that the children are exposed to
every time they participate in online activities.58 Furthermore, considering the complexity
of the cyber world and its pervasiveness,as well as the dangers that these children are
wittingly or unwittingly exposed to in view of their unsupervised activities in cyberspace,
the participation of the parents in disciplining and educating their children about being a
good digital citizen is encouraged by these institutions and organizations. In fact, it is
believed that "to limit such risks, there’s no substitute for parental involvement and
supervision."59
As such, STC cannot be faulted for being steadfast in its duty of teaching its students to
beresponsible in their dealings and activities in cyberspace, particularly in OSNs, whenit
enforced the disciplinary actions specified in the Student Handbook, absenta showing
that, in the process, it violated the students’ rights.
OSN users should be aware of the risks that they expose themselves to whenever they
engage incyberspace activities. Accordingly, they should be cautious enough to control
1âwphi1
their privacy and to exercise sound discretion regarding how much information about
themselves they are willing to give up. Internet consumers ought to be aware that, by
entering or uploading any kind of data or information online, they are automatically and
inevitably making it permanently available online, the perpetuation of which is outside the
ambit of their control. Furthermore, and more importantly, information, otherwise private,
voluntarily surrendered by them can be opened, read, or copied by third parties who may
or may not be allowed access to such.
It is, thus, incumbent upon internet users to exercise due diligence in their online
dealings and activities and must not be negligent in protecting their rights. Equity serves
the vigilant. Demanding relief from the courts, as here, requires that claimants
themselves take utmost care in safeguarding a right which they allege to have been
violated. These are indispensable. We cannot afford protection to persons if they
themselves did nothing to place the matter within the confines of their private zone. OSN
users must be mindful enough to learn the use of privacy tools, to use them if they desire
to keep the information private, and to keep track of changes in the available privacy
settings, such as those of Facebook, especially because Facebook is notorious for
changing these settings and the site's layout often.
In finding that respondent STC and its officials did not violate the minors' privacy rights,
We find no cogent reason to disturb the findings and case disposition of the court a quo.
In light of the foregoing, the Court need not belabor the other assigned errors.
WHEREFORE, premises considered, the petition is hereby DENIED. The Decision dated
July 27, 2012 of the Regional Trial Court, Branch 14 in Cebu City in SP. Proc. No.
19251-CEB is hereby AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
G.R. No. 193636 July 24, 2012
MARYNETTE R. GAMBOA, Petitioner,
vs.
P/SSUPT. MARLOU C. CHAN, in his capacity as the PNP-Provincial Director of
Ilocos Norte, and P/SUPT. WILLIAM 0. FANG, in his capacity as Chief, Intelligence
Division, PNP Provincial Office, Ilocos Norte, Respondents.
DECISION
SERENO, J.:
Before this Court is an Appeal by Certiorari (Under Rule 45 of the Rules of Court) filed
pursuant to Rule 191 of the Rule on the Writ of Habeas Data,2 seeking a review of the 9
September 2010 Decision in Special Proc. No. 14979 of the Regional Trial Court, First
Judicial Region, Laoag City, Branch 13 (RTC Br. 13).3 The questioned Decision denied
petitioner the privilege of the writ of habeas data.4
At the time the present Petition was filed, petitioner Marynette R. Gamboa (Gamboa)
was the Mayor of Dingras, Ilocos Norte.5 Meanwhile, respondent Police Senior
Superintendent (P/SSUPT.) Marlou C. Chan was the Officer-in-Charge, and respondent
Police Superintendent (P/SUPT.) William O. Fang was the Chief of the Provincial
Investigation and Detective Management Branch, both of the Ilocos Norte Police
Provincial Office.6
On 8 December 2009, former President Gloria Macapagal-Arroyo issued Administrative
Order No. 275 (A.O. 275), "Creating an Independent Commission to Address the Alleged
Existence of Private Armies in the Country." 7 The body, which was later on referred to as
the Zeñarosa Commission,8 was formed to investigate the existence of private army
groups (PAGs) in the country with a view to eliminating them before the 10 May 2010
elections and dismantling them permanently in the future. 9 Upon the conclusion of its
investigation, the Zeñarosa Commission released and submitted to the Office of the
President a confidential report entitled "A Journey Towards H.O.P.E.: The Independent
Commission Against Private Armies’ Report to the President" (the Report). 10
Gamboa alleged that the Philippine National Police in Ilocos Norte (PNP–Ilocos Norte)
conducted a series of surveillance operations against her and her aides, 11 and classified
her as someone who keeps a PAG.12 Purportedly without the benefit of data verification,
PNP–Ilocos Norte forwarded the information gathered on her to the Zeñarosa
Commission,13 thereby causing her inclusion in the Report’s enumeration of individuals
maintaining PAGs.14 More specifically, she pointed out the following items reflected
therein:
(a) The Report cited the PNP as its source for the portion regarding the status of
PAGs in the Philippines.15
(b) The Report stated that "x x x the PNP organized one dedicated Special Task
Group (STG) for each private armed group (PAG) to monitor and counteract their
activities."16
(c) Attached as Appendix "F" of the Report is a tabulation generated by the PNP
and captioned as "Status of PAGs Monitoring by STGs as of April 19, 2010,"
which classifies PAGs in the country according to region, indicates their identity,
and lists the prominent personalities with whom these groups are
associated.17 The first entry in the table names a PAG, known as the Gamboa
Group, linked to herein petitioner Gamboa.18
(d) Statistics on the status of PAGs were based on data from the PNP, to wit:
The resolutions were the subject of a national press conference held in
Malacañang on March 24, 2010 at which time, the Commission was also asked
to comment on the PNP report that out of one hundred seventeen (117) partisan
armed groups validated, twenty-four (24) had been dismantled with sixty-seven
(67) members apprehended and more than eighty-six (86) firearms confiscated.
Commissioner Herman Basbaño qualified that said statistics were based on PNP
data but that the more significant fact from his report is that the PNP has been
vigilant in monitoring the activities of these armed groups and this vigilance is
largely due to the existence of the Commission which has continued
communicating with the Armed Forces of the Philippines (AFP) and PNP
personnel in the field to constantly provide data on the activities of the PAGs.
Commissioner Basbaño stressed that the Commission’s efforts have preempted
the formation of the PAGs because now everyone is aware that there is a body
monitoring the PAGs movement through the PNP. Commissioner Lieutenant
General Edilberto Pardo Adan also clarified that the PAGs are being destabilized
so that their ability to threaten and sow fear during the election has been
considerably weakened.19
(e) The Report briefly touched upon the validation system of the PNP:
Also, in order to provide the Commission with accurate data which is truly reflective of
the situation in the field, the PNP complied with the Commission’s recommendation that
they revise their validation system to include those PAGs previously listed as dormant. In
the most recent briefing provided by the PNP on April 26, 2010, there are one hundred
seven (107) existing PAGs. Of these groups, the PNP reported that seven (7) PAGs
have been reorganized.20
On 6 and 7 July 2010, ABS-CBN broadcasted on its evening news program the portion
of the Report naming Gamboa as one of the politicians alleged to be maintaining a
PAG.21 Gamboa averred that her association with a PAG also appeared on print
media.22 Thus, she was publicly tagged as someone who maintains a PAG on the basis of
the unverified information that the PNP-Ilocos Norte gathered and forwarded to the
Zeñarosa Commission.23 As a result, she claimed that her malicious or reckless inclusion
in the enumeration of personalities maintaining a PAG as published in the Report also
made her, as well as her supporters and other people identified with her, susceptible to
harassment and police surveillance operations. 24
Contending that her right to privacy was violated and her reputation maligned and
destroyed, Gamboa filed a Petition dated 9 July 2010 for the issuance of a writ of habeas
data against respondents in their capacities as officials of the PNP-Ilocos Norte.25 In her
Petition, she prayed for the following reliefs: (a) destruction of the unverified reports from
the PNP-Ilocos Norte database; (b) withdrawal of all information forwarded to higher PNP
officials; (c) rectification of the damage done to her honor; (d) ordering respondents to
refrain from forwarding unverified reports against her; and (e) restraining respondents
from making baseless reports.26
The case was docketed as Special Proc. No. 14979 and was raffled to RTC Br. 13,
which issued the corresponding writ on 14 July 2010 after finding the Petition meritorious
on its face.27 Thus, the trial court (a) instructed respondents to submit all information and
reports forwarded to and used by the Zeñarosa Commission as basis to include her in
the list of persons maintaining PAGs; (b) directed respondents, and any person acting on
their behalf, to cease and desist from forwarding to the Zeñarosa Commission, or to any
other government entity, information that they may have gathered against her without the
approval of the court; (c) ordered respondents to make a written return of the writ
together with supporting affidavits; and (d) scheduled the summary hearing of the case
on 23 July 2010.28
In their Return of the Writ, respondents alleged that they had acted within the bounds of
their mandate in conducting the investigation and surveillance of Gamboa. 29 The
information stored in their database supposedly pertained to two criminal cases in which
she was implicated, namely: (a) a Complaint for murder and frustrated murder docketed
as NPS DOC No. 1-04-INQ-091-00077, and (b) a Complaint for murder, frustrated
murder and direct assault upon a person in authority, as well as indirect assault and
multiple attempted murder, docketed as NPS DOCKET No. 1-04-INV-10-A-00009.30
Respondents likewise asserted that the Petition was incomplete for failing to comply with
the following requisites under the Rule on the Writ of Habeas Data: (a) the manner in
which the right to privacy was violated or threatened with violation and how it affected the
right to life, liberty or security of Gamboa; (b) the actions and recourses she took to
secure the data or information; and (c) the location of the files, registers or databases,
the government office, and the person in charge, in possession or in control of the data
or information.31 They also contended that the Petition for Writ of Habeas Data, being
limited to cases of extrajudicial killings and enforced disappearances, was not the proper
remedy to address the alleged besmirching of the reputation of Gamboa. 32
RTC Br. 13, in its assailed Decision dated 9 September 2010, dismissed the
Petition.33 The trial court categorically ruled that the inclusion of Gamboa in the list of
persons maintaining PAGs, as published in the Report, constituted a violation of her right
to privacy, to wit:
In this light, it cannot also be disputed that by her inclusion in the list of persons
maintaining PAGs, Gamboa’s right to privacy indubitably has been violated. The violation
understandably affects her life, liberty and security enormously. The untold misery that
comes with the tag of having a PAG could even be insurmountable. As she essentially
alleged in her petition, she fears for her security that at any time of the day the unlimited
powers of respondents may likely be exercised to further malign and destroy her
reputation and to transgress her right to life.
By her inclusion in the list of persons maintaining PAGs, it is likewise undisputed that
there was certainly intrusion into Gamboa’s activities. It cannot be denied that
information was gathered as basis therefor. After all, under Administrative Order No. 275,
the Zeñarosa Commission was tasked to investigate the existence of private armies in
the country, with all the powers of an investigative body under Section 37, Chapter 9,
Book I of the Administrative Code of 1987.
xxx xxx xxx
By her inclusion in the list of persons maintaining PAGs, Gamboa alleged as she
accused respondents, who are public officials, of having gathered and provided
information that made the Zeñarosa Commission to include her in the list. Obviously, it
was this gathering and forwarding of information supposedly by respondents that
petitioner barks at as unlawful. x x x.34
Despite the foregoing findings, RTC Br. 13 nevertheless dismissed the Petition on the
ground that Gamboa failed to prove through substantial evidence that the subject
information originated from respondents, and that they forwarded this database to the
Zeñarosa Commission without the benefit of prior verification. 35 The trial court also ruled
that even before respondents assumed their official positions, information on her may
have already been acquired.36 Finally, it held that the Zeñarosa Commission, as the body
tasked to gather information on PAGs and authorized to disclose information on her,
should have been impleaded as a necessary if not a compulsory party to the Petition.37
Gamboa then filed the instant Appeal by Certiorari dated 24 September 2010, 38 raising
the following assignment of errors:
1. The trial court erred in ruling that the Zeñarosa Commission be impleaded as
either a necessary or indispensable party;
2. The trial court erred in declaring that Gamboa failed to present sufficient proof
to link respondents as the informant to [sic] the Zeñarosa Commission;
3. The trial court failed to satisfy the spirit of Habeas Data;
4. The trial court erred in pronouncing that the reliance of the Zeñarosa
Commission to [sic] the PNP as alleged by Gamboa is an assumption;
5. The trial court erred in making a point that respondents are distinct to PNP as
an agency.39
On the other hand, respondents maintain the following arguments: (a) Gamboa failed to
present substantial evidence to show that her right to privacy in life, liberty or security
was violated, and (b) the trial court correctly dismissed the Petition on the ground that
she had failed to present sufficient proof showing that respondents were the source of
the report naming her as one who maintains a PAG. 40
Meanwhile, Gamboa argues that although A.O. 275 was a lawful order, fulfilling the
mandate to dismantle PAGs in the country should be done in accordance with due
process, such that the gathering and forwarding of unverified information on her must be
considered unlawful.41 She also reiterates that she was able to present sufficient evidence
showing that the subject information originated from respondents. 42
In determining whether Gamboa should be granted the privilege of the writ of habeas
data, this Court is called upon to, first, unpack the concept of the right to privacy; second,
explain the writ of habeas data as an extraordinary remedy that seeks to protect the right
to informational privacy; and finally, contextualize the right to privacy vis-à-vis the state
interest involved in the case at bar.
The Right to Privacy
The right to privacy, as an inherent concept of liberty, has long been recognized as a
constitutional right. This Court, in Morfe v. Mutuc, 43 thus enunciated:
The due process question touching on an alleged deprivation of liberty as thus resolved
goes a long way in disposing of the objections raised by plaintiff that the provision on the
periodical submission of a sworn statement of assets and liabilities is violative of the
constitutional right to privacy. There is much to be said for this view of Justice Douglas:
"Liberty in the constitutional sense must mean more than freedom from unlawful
governmental restraint; it must include privacy as well, if it is to be a repository of
freedom. The right to be let alone is indeed the beginning of all freedom." As a matter of
fact, this right to be let alone is, to quote from Mr. Justice Brandeis "the most
comprehensive of rights and the right most valued by civilized men."
The concept of liberty would be emasculated if it does not likewise compel respect for his
personality as a unique individual whose claim to privacy and interference demands
respect. xxx.
xxx xxx xxx
x x x In the leading case of Griswold v. Connecticut, Justice Douglas, speaking for five
members of the Court, stated: "Various guarantees create zones of privacy. The right of
association contained in the penumbra of the First Amendment is one, as we have seen.
The Third Amendment in its prohibition against the quartering of soldiers ‘in any house’ in
time of peace without the consent of the owner is another facet of that privacy. The
Fourth Amendment explicitly affirms the ‘right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.’ The Fifth
Amendment in its Self-Incrimination Clause enables the citizen to create a zone of
privacy which government may not force him to surrender to his detriment. The Ninth
Amendment provides: ‘The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people." After referring to various
American Supreme Court decisions, Justice Douglas continued: "These cases bear
witness that the right of privacy which presses for recognition is a legitimate one."
xxx xxx xxx
So it is likewise in our jurisdiction. The right to privacy as such is accorded recognition
independently of its identification with liberty; in itself, it is fully deserving of constitutional
protection. The language of Prof. Emerson is particularly apt: "The concept of limited
government has always included the idea that governmental powers stop short of certain
intrusions into the personal life of the citizen. This is indeed one of the basic distinctions
between absolute and limited government. Ultimate and pervasive control of the
individual, in all aspects of his life, is the hallmark of the absolute state. In contrast, a
system of limited government, safeguards a private sector, which belongs to the
individual, firmly distinguishing it from the public sector, which the state can control.
Protection of this private sector — protection, in other words, of the dignity and integrity
of the individual — has become increasingly important as modern society has developed.
All the forces of a technological age — industrialization, urbanization, and organization
— operate to narrow the area of privacy and facilitate intrusion into it. In modern terms,
the capacity to maintain and support this enclave of private life marks the difference
between a democratic and a totalitarian society." 44 (Emphases supplied)
In Ople v. Torres,45 this Court traced the constitutional and statutory bases of the right to
privacy in Philippine jurisdiction, to wit:
Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized
and enshrined in several provisions of our Constitution. It is expressly recognized in
section 3 (1) of the Bill of Rights:
Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except
upon lawful order of the court, or when public safety or order requires otherwise as
prescribed by law.
Other facets of the right to privacy are protected in various provisions of the Bill of Rights,
viz:
Sec. 1. No person shall be deprived of life, liberty, or property without due process of
law, nor shall any person be denied the equal protection of the laws.
Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.
xxx xxx xxx
Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law
shall not be impaired except upon lawful order of the court. Neither shall the right to
travel be impaired except in the interest of national security, public safety, or public
health as may be provided by law.
xxx xxx xxx
Sec. 8. The right of the people, including those employed in the public and private
sectors, to form unions, associations, or societies for purposes not contrary to law shall
not be abridged.
Sec. 17. No person shall be compelled to be a witness against himself.
Zones of privacy are likewise recognized and protected in our laws. The Civil Code
provides that "every person shall respect the dignity, personality, privacy and peace of
mind of his neighbors and other persons" and punishes as actionable torts several acts
by a person of meddling and prying into the privacy of another. It also holds a public
officer or employee or any private individual liable for damages for any violation of the
rights and liberties of another person, and recognizes the privacy of letters and other
private communications. The Revised Penal Code makes a crime the violation of secrets
by an officer, the revelation of trade and industrial secrets, and trespass to dwelling.
Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law, the
Secrecy of Bank Deposits Act and the Intellectual Property Code. The Rules of Court on
privileged communication likewise recognize the privacy of certain information.
Unlike the dissenters, we prescind from the premise that the right to privacy is a
fundamental right guaranteed by the Constitution, hence, it is the burden of government
to show that A.O. No. 308 is justified by some compelling state interest and that it is
narrowly drawn. x x x.46 (Emphases supplied)
Clearly, the right to privacy is considered a fundamental right that must be protected from
intrusion or constraint. However, in Standard Chartered Bank v. Senate Committee on
Banks,47 this Court underscored that the right to privacy is not absolute, viz:
With respect to the right of privacy which petitioners claim respondent has violated,
suffice it to state that privacy is not an absolute right. While it is true that Section 21,
Article VI of the Constitution, guarantees respect for the rights of persons affected by the
legislative investigation, not every invocation of the right to privacy should be allowed to
thwart a legitimate congressional inquiry. In Sabio v. Gordon, we have held that the right
of the people to access information on matters of public concern generally prevails over
the right to privacy of ordinary financial transactions. In that case, we declared that the
right to privacy is not absolute where there is an overriding compelling state interest.
Employing the rational basis relationship test, as laid down in Morfe v. Mutuc, there is no
infringement of the individual’s right to privacy as the requirement to disclosure
information is for a valid purpose, in this case, to ensure that the government agencies
involved in regulating banking transactions adequately protect the public who invest in
foreign securities. Suffice it to state that this purpose constitutes a reason compelling
enough to proceed with the assailed legislative investigation. 48
Therefore, when the right to privacy finds tension with a competing state objective, the
courts are required to weigh both notions. In these cases, although considered a
fundamental right, the right to privacy may nevertheless succumb to an opposing or
overriding state interest deemed legitimate and compelling.
The Writ of Habeas Data
The writ of habeas data is an independent and summary remedy designed to protect the
image, privacy, honor, information, and freedom of information of an individual, and to
provide a forum to enforce one’s right to the truth and to informational privacy. 49 It seeks
to protect a person’s right to control information regarding oneself, particularly in
instances in which such information is being collected through unlawful means in order to
achieve unlawful ends.50 It must be emphasized that in order for the privilege of the writ to
be granted, there must exist a nexus between the right to privacy on the one hand, and
the right to life, liberty or security on the other. Section 1 of the Rule on the Writ of
Habeas Data reads:
Habeas data. – The writ of habeas data is a remedy available to any person whose right
to privacy in life, liberty or security is violated or threatened by an unlawful act or
omission of a public official or employee, or of a private individual or entity engaged in
the gathering, collecting or storing of data information regarding the person, family, home
and correspondence of the aggrieved party.
The notion of informational privacy is still developing in Philippine law and jurisprudence.
Considering that even the Latin American habeas data, on which our own Rule on the
Writ of Habeas Data is rooted, finds its origins from the European tradition of data
protection,51 this Court can be guided by cases on the protection of personal data decided
by the European Court of Human Rights (ECHR). Of particular note is Leander v.
Sweden,52 in which the ECHR balanced the right of citizens to be free from interference in
their private affairs with the right of the state to protect its national security. In this case,
Torsten Leander (Leander), a Swedish citizen, worked as a temporary replacement
museum technician at the Naval Museum, which was adjacent to a restricted military
security zone.53 He was refused employment when the requisite personnel control
resulted in an unfavorable outcome on the basis of information in the secret police
register, which was kept in accordance with the Personnel Control Ordinance and to
which he was prevented access.54 He claimed, among others, that this procedure of
security control violated Article 8 of the European Convention of Human Rights 55 on the
right to privacy, as nothing in his personal or political background would warrant his
classification in the register as a security risk.56
The ECHR ruled that the storage in the secret police register of information relating to
the private life of Leander, coupled with the refusal to allow him the opportunity to refute
the same, amounted to an interference in his right to respect for private life. 57 However,
the ECHR held that the interference was justified on the following grounds: (a) the
personnel control system had a legitimate aim, which was the protection of national
security,58 and (b) the Personnel Control Ordinance gave the citizens adequate indication
as to the scope and the manner of exercising discretion in the collection, recording and
release of information by the authorities. 59 The following statements of the ECHR must be
emphasized:
58. The notion of necessity implies that the interference corresponds to a
pressing social need and, in particular, that it is proportionate to the legitimate
aim pursued (see, inter alia, the Gillow judgment of 24 November 1986, Series A
no. 109, p. 22, § 55).
59. However, the Court recognises that the national authorities enjoy a margin of
appreciation, the scope of which will depend not only on the nature of the
legitimate aim pursued but also on the particular nature of the interference
involved. In the instant case, the interest of the respondent State in protecting its
national security must be balanced against the seriousness of the interference
with the applicant’s right to respect for his private life.
There can be no doubt as to the necessity, for the purpose of protecting national
security, for the Contracting States to have laws granting the competent domestic
authorities power, firstly, to collect and store in registers not accessible to the public
information on persons and, secondly, to use this information when assessing the
suitability of candidates for employment in posts of importance for national security.
Admittedly, the contested interference adversely affected Mr. Leander’s legitimate
interests through the consequences it had on his possibilities of access to certain
sensitive posts within the public service. On the other hand, the right of access to public
service is not as such enshrined in the Convention (see, inter alia, the Kosiek judgment
of 28 August 1986, Series A no. 105, p. 20, §§ 34-35), and, apart from those
consequences, the interference did not constitute an obstacle to his leading a private life
of his own choosing.
In these circumstances, the Court accepts that the margin of appreciation available to the
respondent State in assessing the pressing social need in the present case, and in
particular in choosing the means for achieving the legitimate aim of protecting national
security, was a wide one.
xxx xxx xxx
66. The fact that the information released to the military authorities was not
communicated to Mr. Leander cannot by itself warrant the conclusion that the
interference was not "necessary in a democratic society in the interests of national
security", as it is the very absence of such communication which, at least partly, ensures
the efficacy of the personnel control procedure (see, mutatis mutandis, the above-
mentioned Klass and Others judgment, Series A no. 28, p. 27, § 58).
The Court notes, however, that various authorities consulted before the issue of the
Ordinance of 1969, including the Chancellor of Justice and the Parliamentary
Ombudsman, considered it desirable that the rule of communication to the person
concerned, as contained in section 13 of the Ordinance, should be effectively applied in
so far as it did not jeopardise the purpose of the control (see paragraph 31 above).
67. The Court, like the Commission, thus reaches the conclusion that the safeguards
contained in the Swedish personnel control system meet the requirements of paragraph
2 of Article 8 (art. 8-2). Having regard to the wide margin of appreciation available to it,
the respondent State was entitled to consider that in the present case the interests of
national security prevailed over the individual interests of the applicant (see paragraph
59 above). The interference to which Mr. Leander was subjected cannot therefore be
said to have been disproportionate to the legitimate aim pursued. (Emphases supplied)
Leander illustrates how the right to informational privacy, as a specific component of the
right to privacy, may yield to an overriding legitimate state interest. In similar fashion, the
determination of whether the privilege of the writ of habeas data, being an extraordinary
remedy, may be granted in this case entails a delicate balancing of the alleged intrusion
upon the private life of Gamboa and the relevant state interest involved.
The collection and forwarding of information by the PNP vis-à-vis the interest of the state
to dismantle private armies.
The Constitution explicitly mandates the dismantling of private armies and other armed
groups not recognized by the duly constituted authority. 60 It also provides for the
establishment of one police force that is national in scope and civilian in character, and is
controlled and administered by a national police commission. 61
Taking into account these constitutional fiats, it is clear that the issuance of A.O. 275
articulates a legitimate state aim, which is to investigate the existence of PAGs with the
ultimate objective of dismantling them permanently.
To enable the Zeñarosa Commission to achieve its goals, A.O. 275 clothed it with the
powers of an investigative body, including the power to summon witnesses, administer
oaths, take testimony or evidence relevant to the investigation and use compulsory
processes to produce documents, books, and records.62 A.O. 275 likewise authorized the
Zeñarosa Commission to deputize the Armed Forces of the Philippines, the National
Bureau of Investigation, the Department of Justice, the PNP, and any other law
enforcement agency to assist the commission in the performance of its functions. 63
Meanwhile, the PNP, as the national police force, is empowered by law to (a) enforce all
laws and ordinances relative to the protection of lives and properties; (b) maintain peace
and order and take all necessary steps to ensure public safety; and (c) investigate and
prevent crimes.64
Pursuant to the state interest of dismantling PAGs, as well as the foregoing powers and
functions accorded to the Zeñarosa Commission and the PNP, the latter collected
information on individuals suspected of maintaining PAGs, monitored them and
counteracted their activities.65 One of those individuals is herein petitioner Gamboa.
This Court holds that Gamboa was able to sufficiently establish that the data contained in
the Report listing her as a PAG coddler came from the PNP. Contrary to the ruling of the
trial court, however, the forwarding of information by the PNP to the Zeñarosa
Commission was not an unlawful act that violated or threatened her right to privacy in
life, liberty or security.
The PNP was rationally expected to forward and share intelligence regarding PAGs with
the body specifically created for the purpose of investigating the existence of these
notorious groups. Moreover, the Zeñarosa Commission was explicitly authorized to
deputize the police force in the fulfillment of the former’s mandate, and thus had the
power to request assistance from the latter.
Following the pronouncements of the ECHR in Leander, the fact that the PNP released
information to the Zeñarosa Commission without prior communication to Gamboa and
without affording her the opportunity to refute the same cannot be interpreted as a
violation or threat to her right to privacy since that act is an inherent and crucial
component of intelligence-gathering and investigation. Additionally, Gamboa herself
1âwphi1
admitted that the PNP had a validation system, which was used to update information on
individuals associated with PAGs and to ensure that the data mirrored the situation on
the field.66 Thus, safeguards were put in place to make sure that the information collected
maintained its integrity and accuracy.
Pending the enactment of legislation on data protection, this Court declines to make any
further determination as to the propriety of sharing information during specific stages of
intelligence gathering. To do otherwise would supplant the discretion of investigative
bodies in the accomplishment of their functions, resulting in an undue encroachment on
their competence.
However, to accord the right to privacy with the kind of protection established in existing
law and jurisprudence, this Court nonetheless deems it necessary to caution these
investigating entities that information-sharing must observe strict confidentiality.
Intelligence gathered must be released exclusively to the authorities empowered to
receive the relevant information. After all, inherent to the right to privacy is the freedom
from "unwarranted exploitation of one’s person or from intrusion into one’s private
activities in such a way as to cause humiliation to a person’s ordinary sensibilities." 67
In this case, respondents admitted the existence of the Report, but emphasized its
confidential nature. That it was leaked to third parties and the media was regrettable,
1âwphi1
even warranting reproach. But it must be stressed that Gamboa failed to establish that
respondents were responsible for this unintended disclosure. In any event, there are
other reliefs available to her to address the purported damage to her reputation, making
a resort to the extraordinary remedy of the writ of habeas data unnecessary and
improper.
Finally, this Court rules that Gamboa was unable to prove through substantial evidence
that her inclusion in the list of individuals maintaining PAGs made her and her supporters
susceptible to harassment and to increased police surveillance. In this regard,
respondents sufficiently explained that the investigations conducted against her were in
relation to the criminal cases in which she was implicated. As public officials, they enjoy
the presumption of regularity, which she failed to overcome.
It is clear from the foregoing discussion that the state interest of dismantling PAGs far
outweighs the alleged intrusion on the private life of Gamboa, especially when the
collection and forwarding by the PNP of information against her was pursuant to a lawful
mandate. Therefore, the privilege of the writ of habeas data must be denied.
WHEREFORE, the instant petition for review is DENIED. The assailed Decision in
Special Proc. No. 14979 dated 9 September 2010 of the Regional Trial Court, Laoag
City, Br. 13, insofar as it denies Gamboa the privilege of the writ of habeas data, is
AFFIRMED.
SO ORDERED.
G.R. No. 181881 October 18, 2011
BRICCIO "Ricky" A. POLLO, Petitioner,
vs.
CHAIRPERSON KARINA CONSTANTINO-DAVID, DIRECTOR IV RACQUEL DE
GUZMAN BUENSALIDA, DIRECTOR IV LYDIA A. CASTILLO, DIRECTOR III
ENGELBERT ANTHONY D. UNITE AND THE CIVIL SERVICE
COMMISSION, Respondents.
DECISION
VILLARAMA, JR., J.:
This case involves a search of office computer assigned to a government employee who
was charged administratively and eventually dismissed from the service. The employee’s
personal files stored in the computer were used by the government employer as
evidence of misconduct.
Before us is a petition for review on certiorari under Rule 45 which seeks to reverse and
set aside the Decision1 dated October 11, 2007 and Resolution2 dated February 29, 2008
of the Court of Appeals (CA). The CA dismissed the petition for certiorari (CA-G.R. SP
No. 98224) filed by petitioner Briccio "Ricky" A. Pollo to nullify the proceedings
conducted by the Civil Service Commission (CSC) which found him guilty of dishonesty,
grave misconduct, conduct prejudicial to the best interest of the service, and violation of
Republic Act (R.A.) No. 6713 and penalized him with dismissal.
The factual antecedents:
Petitioner is a former Supervising Personnel Specialist of the CSC Regional Office No. IV
and also the Officer-in-Charge of the Public Assistance and Liaison Division (PALD)
under the "Mamamayan Muna Hindi Mamaya Na" program of the CSC.
On January 3, 2007 at around 2:30 p.m., an unsigned letter-complaint addressed to
respondent CSC Chairperson Karina Constantino-David which was marked
"Confidential" and sent through a courier service (LBC) from a certain "Alan San
Pascual" of Bagong Silang, Caloocan City, was received by the Integrated Records
Management Office (IRMO) at the CSC Central Office. Following office practice in which
documents marked "Confidential" are left unopened and instead sent to the addressee,
the aforesaid letter was given directly to Chairperson David.
The letter-complaint reads:
The Chairwoman
Civil Service Commission
Batasan Hills, Quezon City
Dear Madam Chairwoman,
Belated Merry Christmas and Advance Happy New Year!
As a concerned citizen of my beloved country, I would like to ask from you personally if it
is just alright for an employee of your agency to be a lawyer of an accused gov’t
employee having a pending case in the csc. I honestly think this is a violation of law and
unfair to others and your office.
I have known that a person have been lawyered by one of your attorny in the region 4
office. He is the chief of the Mamamayan muna hindi mamaya na division. He have been
helping many who have pending cases in the Csc. The justice in our govt system will not
be served if this will continue. Please investigate this anomaly because our perception of
your clean and good office is being tainted.
Concerned Govt employee3
Chairperson David immediately formed a team of four personnel with background in
information technology (IT), and issued a memo directing them to conduct an
investigation and specifically "to back up all the files in the computers found in the
Mamamayan Muna (PALD) and Legal divisions."4 After some briefing, the team
proceeded at once to the CSC-ROIV office at Panay Avenue, Quezon City. Upon their
arrival thereat around 5:30 p.m., the team informed the officials of the CSC-ROIV,
respondents Director IV Lydia Castillo (Director Castillo) and Director III Engelbert Unite
(Director Unite) of Chairperson David’s directive.
The backing-up of all files in the hard disk of computers at the PALD and Legal Services
Division (LSD) was witnessed by several employees, together with Directors Castillo and
Unite who closely monitored said activity. At around 6:00 p.m., Director Unite sent text
messages to petitioner and the head of LSD, who were both out of the office at the time,
informing them of the ongoing copying of computer files in their divisions upon orders of
the CSC Chair. The text messages received by petitioner read:
"Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs of PALD and
LSD per instruction of the Chairman. If you can make it here now it would be
better."
"All PCs Of PALD and LSD are being backed up per memo of the chair."
 "CO IT people arrived just now for this purpose. We were not also informed about
this.
"We can’t do anything about … it … it’s a directive from chair."
"Memo of the chair was referring to an anonymous complaint"; "ill send a copy of
the memo via mms"5
Petitioner replied also thru text message that he was leaving the matter to Director Unite
and that he will just get a lawyer. Another text message received by petitioner from PALD
staff also reported the presence of the team from CSC main office: "Sir may mga taga
C.O. daw sa kuarto natin."6 At around 10:00 p.m. of the same day, the investigating team
finished their task. The next day, all the computers in the PALD were sealed and secured
for the purpose of preserving all the files stored therein. Several diskettes containing the
back-up files sourced from the hard disk of PALD and LSD computers were turned over
to Chairperson David. The contents of the diskettes were examined by the CSC’s Office
for Legal Affairs (OLA). It was found that most of the files in the 17 diskettes containing
files copied from the computer assigned to and being used by the petitioner, numbering
about 40 to 42 documents, were draft pleadings or letters 7 in connection with
administrative cases in the CSC and other tribunals. On the basis of this finding,
Chairperson David issued the Show-Cause Order8 dated January 11, 2007, requiring the
petitioner, who had gone on extended leave, to submit his explanation or counter-
affidavit within five days from notice.
Evaluating the subject documents obtained from petitioner’s personal files, Chairperson
David made the following observations:
Most of the foregoing files are drafts of legal pleadings or documents that are related to
or connected with administrative cases that may broadly be lumped as pending either in
the CSCRO No. IV, the CSC-NCR, the CSC-Central Office or other tribunals. It is also of
note that most of these draft pleadings are for and on behalves of parties, who are facing
charges as respondents in administrative cases. This gives rise to the inference that the
one who prepared them was knowingly, deliberately and willfully aiding and advancing
interests adverse and inimical to the interest of the CSC as the central personnel agency
of the government tasked to discipline misfeasance and malfeasance in the government
service. The number of pleadings so prepared further demonstrates that such person is
not merely engaged in an isolated practice but pursues it with seeming regularity. It
would also be the height of naivete or credulity, and certainly against common human
experience, to believe that the person concerned had engaged in this customary practice
without any consideration, and in fact, one of the retrieved files (item 13 above) appears
to insinuate the collection of fees. That these draft pleadings were obtained from the
computer assigned to Pollo invariably raises the presumption that he was the one
responsible or had a hand in their drafting or preparation since the computer of origin
was within his direct control and disposition. 9
Petitioner filed his Comment, denying that he is the person referred to in the anonymous
letter-complaint which had no attachments to it, because he is not a lawyer and neither is
he "lawyering" for people with cases in the CSC. He accused CSC officials of conducting
a "fishing expedition" when they unlawfully copied and printed personal files in his
computer, and subsequently asking him to submit his comment which violated his right
against self-incrimination. He asserted that he had protested the unlawful taking of his
computer done while he was on leave, citing the letter dated January 8, 2007 in which he
informed Director Castillo that the files in his computer were his personal files and those
of his sister, relatives, friends and some associates and that he is not authorizing their
sealing, copying, duplicating and printing as these would violate his constitutional right to
privacy and protection against self-incrimination and warrantless search and seizure. He
pointed out that though government property, the temporary use and ownership of the
computer issued under a Memorandum of Receipt (MR) is ceded to the employee who
may exercise all attributes of ownership, including its use for personal purposes. As to
the anonymous letter, petitioner argued that it is not actionable as it failed to comply with
the requirements of a formal complaint under the Uniform Rules on Administrative Cases
in the Civil Service (URACC). In view of the illegal search, the files/documents copied
from his computer without his consent is thus inadmissible as evidence, being "fruits of a
poisonous tree."10
On February 26, 2007, the CSC issued Resolution No. 07038211 finding prima facie case
against the petitioner and charging him with Dishonesty, Grave Misconduct, Conduct
Prejudicial to the Best Interest of the Service and Violation of R.A. No. 6713 (Code of
Conduct and Ethical Standards for Public Officials and Employees). Petitioner was
directed to submit his answer under oath within five days from notice and indicate
whether he elects a formal investigation. Since the charges fall under Section 19 of the
URACC, petitioner was likewise placed under 90 days preventive suspension effective
immediately upon receipt of the resolution. Petitioner received a copy of Resolution No.
070382 on March 1, 2007.
Petitioner filed an Omnibus Motion (For Reconsideration, to Dismiss and/or to Defer)
assailing the formal charge as without basis having proceeded from an illegal search
which is beyond the authority of the CSC Chairman, such power pertaining solely to the
court. Petitioner reiterated that he never aided any people with pending cases at the
CSC and alleged that those files found in his computer were prepared not by him but by
certain persons whom he permitted, at one time or another, to make use of his computer
out of close association or friendship. Attached to the motion were the affidavit of Atty.
Ponciano R. Solosa who entrusted his own files to be kept at petitioner’s CPU and Atty.
Eric N. Estrellado, the latter being Atty. Solosa’s client who attested that petitioner had
nothing to do with the pleadings or bill for legal fees because in truth he owed legal fees
to Atty. Solosa and not to petitioner. Petitioner contended that the case should be
deferred in view of the prejudicial question raised in the criminal complaint he filed before
the Ombudsman against Director Buensalida, whom petitioner believes had instigated
this administrative case. He also prayed for the lifting of the preventive suspension
imposed on him. In its Resolution No. 07051912 dated March 19, 2007, the CSC denied
the omnibus motion. The CSC resolved to treat the said motion as petitioner’s answer.
On March 14, 2007, petitioner filed an Urgent Petition under Rule 65 of the Rules of
13
Court, docketed as CA-G.R. SP No. 98224, assailing both the January 11, 2007 Show-
Cause Order and Resolution No. 070382 dated February 26, 2007 as having been
issued with grave abuse of discretion amounting to excess or total absence of
jurisdiction. Prior to this, however, petitioner lodged an administrative/criminal complaint
against respondents Directors Racquel D.G. Buensalida (Chief of Staff, Office of the
CSC Chairman) and Lydia A. Castillo (CSC-RO IV) before the Office of the Ombudsman,
and a separate complaint for disbarment against Director Buensalida. 14
On April 17, 2007, petitioner received a notice of hearing from the CSC setting the formal
investigation of the case on April 30, 2007. On April 25, 2007, he filed in the CA an
Urgent Motion for the issuance of TRO and preliminary injunction. 15 Since he failed to
attend the pre-hearing conference scheduled on April 30, 2007, the CSC reset the same
to May 17, 2007 with warning that the failure of petitioner and/or his counsel to appear in
the said pre-hearing conference shall entitle the prosecution to proceed with the formal
investigation ex-parte.16 Petitioner moved to defer or to reset the pre-hearing conference,
claiming that the investigation proceedings should be held in abeyance pending the
resolution of his petition by the CA. The CSC denied his request and again scheduled
the pre-hearing conference on May 18, 2007 with similar warning on the consequences
of petitioner and/or his counsel’s non-appearance.17 This prompted petitioner to file
another motion in the CA, to cite the respondents, including the hearing officer, in indirect
contempt.18
On June 12, 2007, the CSC issued Resolution No. 07113419 denying petitioner’s motion
to set aside the denial of his motion to defer the proceedings and to inhibit the
designated hearing officer, Atty. Bernard G. Jimenez. The hearing officer was directed to
proceed with the investigation proper with dispatch.
In view of the absence of petitioner and his counsel, and upon the motion of the
prosecution, petitioner was deemed to have waived his right to the formal investigation
which then proceeded ex parte.
On July 24, 2007, the CSC issued Resolution No. 071420,20 the dispositive part of which
reads:
WHEREFORE, foregoing premises considered, the Commission hereby finds Briccio A.
Pollo, a.k.a. Ricky A. Pollo GUILTY of Dishonesty, Grave Misconduct, Conduct
Prejudicial to the Best Interest of the Service and Violation of Republic Act 6713. He is
meted the penalty of DISMISSAL FROM THE SERVICE with all its accessory penalties,
namely, disqualification to hold public office, forfeiture of retirement benefits, cancellation
of civil service eligibilities and bar from taking future civil service examinations. 21
On the paramount issue of the legality of the search conducted on petitioner’s computer,
the CSC noted the dearth of jurisprudence relevant to the factual milieu of this case
where the government as employer invades the private files of an employee stored in the
computer assigned to him for his official use, in the course of initial investigation of
possible misconduct committed by said employee and without the latter’s consent or
participation. The CSC thus turned to relevant rulings of the United States Supreme
Court, and cited the leading case of O’Connor v. Ortega22 as authority for the view that
government agencies, in their capacity as employers, rather than law enforcers, could
validly conduct search and seizure in the governmental workplace without meeting the
"probable cause" or warrant requirement for search and seizure. Another ruling cited by
the CSC is the more recent case of United States v. Mark L. Simons 23 which declared
that the federal agency’s computer use policy foreclosed any inference of reasonable
expectation of privacy on the part of its employees. Though the Court therein recognized
that such policy did not, at the same time, erode the respondent’s legitimate expectation
of privacy in the office in which the computer was installed, still, the warrantless search of
the employee’s office was upheld as valid because a government employer is entitled to
conduct a warrantless search pursuant to an investigation of work-related misconduct
provided the search is reasonable in its inception and scope.
With the foregoing American jurisprudence as benchmark, the CSC held that petitioner
has no reasonable expectation of privacy with regard to the computer he was using in
the regional office in view of the CSC computer use policy which unequivocally declared
that a CSC employee cannot assert any privacy right to a computer assigned to him.
Even assuming that there was no such administrative policy, the CSC was of the view
that the search of petitioner’s computer successfully passed the test of reasonableness
for warrantless searches in the workplace as enunciated in the aforecited authorities.
The CSC stressed that it pursued the search in its capacity as government employer and
that it was undertaken in connection with an investigation involving work-related
misconduct, which exempts it from the warrant requirement under the Constitution. With
the matter of admissibility of the evidence having been resolved, the CSC then ruled that
the totality of evidence adequately supports the charges of grave misconduct,
dishonesty, conduct prejudicial to the best interest of the service and violation of R.A. No.
6713 against the petitioner. These grave infractions justified petitioner’s dismissal from
the service with all its accessory penalties.
In his Memorandum24 filed in the CA, petitioner moved to incorporate the above
resolution dismissing him from the service in his main petition, in lieu of the filing of an
appeal via a Rule 43 petition. In a subsequent motion, he likewise prayed for the
inclusion of Resolution No. 07180025 which denied his motion for reconsideration.
By Decision dated October 11, 2007, the CA dismissed the petition for certiorari after
finding no grave abuse of discretion committed by respondents CSC officials. The CA
held that: (1) petitioner was not charged on the basis of the anonymous letter but from
the initiative of the CSC after a fact-finding investigation was conducted and the results
thereof yielded a prima facie case against him; (2) it could not be said that in ordering the
back-up of files in petitioner’s computer and later confiscating the same, Chairperson
David had encroached on the authority of a judge in view of the CSC computer policy
declaring the computers as government property and that employee-users thereof have
no reasonable expectation of privacy in anything they create, store, send, or receive on
the computer system; and (3) there is nothing contemptuous in CSC’s act of proceeding
with the formal investigation as there was no restraining order or injunction issued by the
CA.
His motion for reconsideration having been denied by the CA, petitioner brought this
appeal arguing that –
I
THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED AND
COMMITTED SERIOUS IRREGULARITY AND BLATANT ERRORS IN LAW
AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT
ANONYMOUS COMPLAINT IS ACTIONABLE UNDER E.O. 292 WHEN IN
TRUTH AND IN FACT THE CONTRARY IS EXPLICITLY PROVIDED UNDER
2nd PARAGRAPH OF SECTION 8 OF CSC RESOLUTION NO. 99-1936,
WHICH IS AN [AMENDMENT] TO THE ORIGINAL RULES PER CSC
RESOLUTION NO. 94-0521;
II
THE HONORABLE COURT GRIEVOUSLY ERRED AND COMMITTED
PALPABLE ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF
DISCRETION WHEN IT RULED THAT PETITIONER CANNOT INVOKE HIS
RIGHT TO PRIVACY, TO UNREASONABLE SEARCH AND SEIZURE,
AGAINST SELF-INCRIMINATION, BY VIRTUE OF OFFICE MEMORANDUM
NO. 10 S. 2002, A MERE INTERNAL MEMORANDUM SIGNED SOLELY AND
EXCLUSIVELY BY RESPONDENT DAVID AND NOT BY THE COLLEGIAL
COMMISSION CONSIDERING THAT POLICY MATTERS INVOLVING
SUB[S]TANTIAL RIGHTS CANNOT BE COVERED BY AN OFFICE
MEMORANDUM WHICH IS LIMITED TO PROCEDURAL AND ROUTINARY
INSTRUCTION;
III
THE HONORABLE COURT GRAVELY ERRED AND COMMITTED GRAVE
ABUSE OF DISCRETION WHEN IT RULED THAT MEMO SEARCH DATED
JANUARY 3, 2007 AND THE TAKING OF DOCUMENTS IN THE EVENING
THEREOF FROM 7:00 TO 10:00 P.M. IS NOT GRAVE ABUSE OF
DISCRETION LIMITING THE DEFINITION [OF] GRAVE ABUSE OF
DISCRETION TO ONE INVOLVING AND TAINTED WITH PERSONAL
HOSTILITY. IT LIKEWISE ERRED IN HOLDING THAT DATA STORED IN THE
GOVERNMENT COMPUTERS ARE GOVERNMENT PROPERTIES
INCLUDING THE PERSONAL FILES WHEN THE CONTRARY IS PROVIDED
UNDER SECTION 14 OF OM. 10 s. 2002. AND GRIEVOUSLY ERRED STILL
WHEN IT RULED THAT RESPONDENT DAVID BY VIRTUE OF O.M. 10 DID
NOT ENCROACH ON THE DUTIES AND FUNCTIONS OF A JUDGE
PURSUANT TO ARTICLE III, SECTION 2 OF THE 1987 PHILIPPINE
CONSTITUTION;
IV
THE HONORABLE COURT ERRED WHEN IT FAILED TO CONSIDER ALL
OTHER NEW ARGUMENTS, ADDITIONAL EVIDENCE HEREUNTO
SUBMITTED AS WELL AS ITS FAILURE TO EVALUATE AND TAKE ACTION
ON THE 2 MOTIONS TO ADMIT AND INCORPORATE CSC RESOLUTION
NOS. 07-1420 DATED JULY 24, 2007 AND CSC RESOLUTION 07-1800
DATED SEPTEMBER 10, 2007. IT DID NOT RULE LIKEWISE ON THE FOUR
URGENT MOTION TO RESOLVE ANCILLARY PRAYER FOR TRO.26
Squarely raised by the petitioner is the legality of the search conducted on his office
computer and the copying of his personal files without his knowledge and consent,
alleged as a transgression on his constitutional right to privacy.
The right to privacy has been accorded recognition in this jurisdiction as a facet of the
right protected by the guarantee against unreasonable search and seizure under Section
2, Article III of the 1987 Constitution, 27 which provides:
Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.
The constitutional guarantee is not a prohibition of all searches and seizures but only of
"unreasonable" searches and seizures. 28 But to fully understand this concept and
application for the purpose of resolving the issue at hand, it is essential that we examine
the doctrine in the light of pronouncements in another jurisdiction. As the Court declared
in People v. Marti29 :
Our present constitutional provision on the guarantee against unreasonable search and
seizure had its origin in the 1935 Charter which, worded as follows:
"The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures shall not be violated, and no warrants shall issue
but upon probable cause, to be determined by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched, and the persons or things to be seized." (Sec. 1[3],
Article III)
was in turn derived almost verbatim from the Fourth Amendment to the United States
Constitution. As such, the Court may turn to the pronouncements of the United States
Federal Supreme Court and State Appellate Courts which are considered doctrinal in this
jurisdiction.30
In the 1967 case of Katz v. United States,31 the US Supreme Court held that the act of
FBI agents in electronically recording a conversation made by petitioner in an enclosed
public telephone booth violated his right to privacy and constituted a "search and
seizure". Because the petitioner had a reasonable expectation of privacy in using the
enclosed booth to make a personal telephone call, the protection of the Fourth
Amendment extends to such area. In the concurring opinion of Mr. Justice Harlan, it was
further noted that the existence of privacy right under prior decisions involved a two-fold
requirement: first, that a person has exhibited an actual (subjective) expectation of
privacy; and second, that the expectation be one that society is prepared to recognize as
reasonable (objective).32
In Mancusi v. DeForte33 which addressed the reasonable expectations of private
employees in the workplace, the US Supreme Court held that a union employee had
Fourth Amendment rights with regard to an office at union headquarters that he shared
with other union officials, even as the latter or their guests could enter the office. The
Court thus "recognized that employees may have a reasonable expectation of privacy
against intrusions by police."
That the Fourth Amendment equally applies to a government workplace was addressed
in the 1987 case of O’Connor v. Ortega34 where a physician, Dr. Magno Ortega, who was
employed by a state hospital, claimed a violation of his Fourth Amendment rights when
hospital officials investigating charges of mismanagement of the psychiatric residency
program, sexual harassment of female hospital employees and other irregularities
involving his private patients under the state medical aid program, searched his office
and seized personal items from his desk and filing cabinets. In that case, the Court
categorically declared that "[i]ndividuals do not lose Fourth Amendment rights merely
because they work for the government instead of a private employer."35 A plurality of four
Justices concurred that the correct analysis has two steps: first, because "some
government offices may be so open to fellow employees or the public that no expectation
of privacy is reasonable", a court must consider "[t]he operational realities of the
workplace" in order to determine whether an employee’s Fourth Amendment rights are
implicated; and next, where an employee has a legitimate privacy expectation, an
employer’s intrusion on that expectation "for noninvestigatory, work-related purposes, as
well as for investigations of work-related misconduct, should be judged by the standard
of reasonableness under all the circumstances."36
On the matter of government employees’ reasonable expectations of privacy in their
workplace, O’Connor teaches:
x x x Public employees’ expectations of privacy in their offices, desks, and file cabinets,
like similar expectations of employees in the private sector, may be reduced by virtue of
actual office practices and procedures, or by legitimate regulation. x x x The employee’s
expectation of privacy must be assessed in the context of the employment relation. An
office is seldom a private enclave free from entry by supervisors, other employees, and
business and personal invitees. Instead, in many cases offices are continually entered by
fellow employees and other visitors during the workday for conferences, consultations,
and other work-related visits. Simply put, it is the nature of government offices that others
– such as fellow employees, supervisors, consensual visitors, and the general public –
may have frequent access to an individual’s office. We agree with JUSTICE SCALIA that
"[c]onstitutional protection against unreasonable searches by the government does not
disappear merely because the government has the right to make reasonable intrusions in
its capacity as employer," x x x but some government offices may be so open to
fellow employees or the public that no expectation of privacy is reasonable. x x
x Given the great variety of work environments in the public sector, the question of
whether an employee has a reasonable expectation of privacy must be addressed
on a case-by-case basis.37 (Citations omitted; emphasis supplied.)
On the basis of the established rule in previous cases, the US Supreme Court declared
that Dr. Ortega’s Fourth Amendment rights are implicated only if the conduct of the
hospital officials infringed "an expectation of privacy that society is prepared to consider
as reasonable." Given the undisputed evidence that respondent Dr. Ortega did not share
his desk or file cabinets with any other employees, kept personal correspondence and
other private items in his own office while those work-related files (on physicians in
residency training) were stored outside his office, and there being no evidence that the
hospital had established any reasonable regulation or policy discouraging employees
from storing personal papers and effects in their desks or file cabinets (although the
absence of such a policy does not create any expectation of privacy where it would not
otherwise exist), the Court concluded that Dr. Ortega has a reasonable expectation of
privacy at least in his desk and file cabinets.38
Proceeding to the next inquiry as to whether the search conducted by hospital officials
was reasonable, the O’Connor plurality decision discussed the following principles:
Having determined that Dr. Ortega had a reasonable expectation of privacy in his office,
the Court of Appeals simply concluded without discussion that the "search…was not a
reasonable search under the fourth amendment." x x x "[t]o hold that the Fourth
Amendment applies to searches conducted by [public employers] is only to begin the
inquiry into the standards governing such searches…[W]hat is reasonable depends on
the context within which a search takes place. x x x Thus, we must determine the
appropriate standard of reasonableness applicable to the search. A determination of the
standard of reasonableness applicable to a particular class of searches requires
"balanc[ing] the nature and quality of the intrusion on the individual’s Fourth Amendment
interests against the importance of the governmental interests alleged to justify the
intrusion." x x x In the case of searches conducted by a public employer, we must
balance the invasion of the employees’ legitimate expectations of privacy against
the government’s need for supervision, control, and the efficient operation of the
workplace.
xxxx
In our view, requiring an employer to obtain a warrant whenever the employer wished to
enter an employee’s office, desk, or file cabinets for a work-related purpose would
seriously disrupt the routine conduct of business and would be unduly burdensome.
Imposing unwieldy warrant procedures in such cases upon supervisors, who would
otherwise have no reason to be familiar with such procedures, is simply unreasonable. In
contrast to other circumstances in which we have required warrants, supervisors in
offices such as at the Hospital are hardly in the business of investigating the violation of
criminal laws. Rather, work-related searches are merely incident to the primary business
of the agency. Under these circumstances, the imposition of a warrant requirement
would conflict with the "common-sense realization that government offices could not
function if every employment decision became a constitutional matter." x x x
xxxx
The governmental interest justifying work-related intrusions by public employers is the
efficient and proper operation of the workplace. Government agencies provide myriad
services to the public, and the work of these agencies would suffer if employers were
required to have probable cause before they entered an employee’s desk for the purpose
of finding a file or piece of office correspondence. Indeed, it is difficult to give the concept
of probable cause, rooted as it is in the criminal investigatory context, much meaning
when the purpose of a search is to retrieve a file for work-related reasons. Similarly, the
concept of probable cause has little meaning for a routine inventory conducted by public
employers for the purpose of securing state property. x x x To ensure the efficient and
proper operation of the agency, therefore, public employers must be given wide latitude
to enter employee offices for work-related, noninvestigatory reasons.
We come to a similar conclusion for searches conducted pursuant to an investigation of
work-related employee misconduct. Even when employers conduct an investigation, they
have an interest substantially different from "the normal need for law enforcement." x x x
Public employers have an interest in ensuring that their agencies operate in an effective
and efficient manner, and the work of these agencies inevitably suffers from the
inefficiency, incompetence, mismanagement, or other work-related misfeasance of its
employees. Indeed, in many cases, public employees are entrusted with tremendous
responsibility, and the consequences of their misconduct or incompetence to both the
agency and the public interest can be severe. In contrast to law enforcement officials,
therefore, public employers are not enforcers of the criminal law; instead, public
employers have a direct and overriding interest in ensuring that the work of the agency is
conducted in a proper and efficient manner. In our view, therefore, a probable cause
requirement for searches of the type at issue here would impose intolerable
burdens on public employers. The delay in correcting the employee misconduct
caused by the need for probable cause rather than reasonable suspicion will be
translated into tangible and often irreparable damage to the agency’s work, and
ultimately to the public interest. x x x
xxxx
In sum, we conclude that the "special needs, beyond the normal need for law
enforcement make the…probable-cause requirement impracticable," x x x for
legitimate, work-related noninvestigatory intrusions as well as investigations of
work-related misconduct. A standard of reasonableness will neither unduly burden the
efforts of government employers to ensure the efficient and proper operation of the
workplace, nor authorize arbitrary intrusions upon the privacy of public employees. We
hold, therefore, that public employer intrusions on the constitutionally protected
privacy interests of government employees for noninvestigatory, work-related
purposes, as well as for investigations of work-related misconduct, should be
judged by the standard of reasonableness under all the circumstances. Under this
reasonableness standard, both the inception and the scope of the intrusion must be
reasonable:
"Determining the reasonableness of any search involves a twofold inquiry: first, one must
consider ‘whether the…action was justified at its inception,’ x x x ; second, one must
determine whether the search as actually conducted ‘was reasonably related in scope to
the circumstances which justified the interference in the first place,’" x x x
Ordinarily, a search of an employee’s office by a supervisor will be "justified at its
inception" when there are reasonable grounds for suspecting that the search will
turn up evidence that the employee is guilty of work-related misconduct, or that
the search is necessary for a noninvestigatory work-related purpose such as to
retrieve a needed file. x x x The search will be permissible in its scope when "the
measures adopted are reasonably related to the objectives of the search and not
excessively intrusive in light of …the nature of the [misconduct]." x x x39 (Citations
omitted; emphasis supplied.)
Since the District Court granted summary judgment without a hearing on the factual
dispute as to the character of the search and neither was there any finding made as to
the scope of the search that was undertaken, the case was remanded to said court for
the determination of the justification for the search and seizure, and evaluation of the
reasonableness of both the inception of the search and its scope.
In O’Connor the Court recognized that "special needs" authorize warrantless searches
involving public employees for work-related reasons. The Court thus laid down a
balancing test under which government interests are weighed against the employee’s
reasonable expectation of privacy. This reasonableness test implicates neither probable
cause nor the warrant requirement, which are related to law enforcement. 40
O’Connor was applied in subsequent cases raising issues on employees’ privacy rights
in the workplace. One of these cases involved a government employer’s search of an
office computer, United States v. Mark L. Simons41 where the defendant Simons, an
employee of a division of the Central Intelligence Agency (CIA), was convicted of
receiving and possessing materials containing child pornography. Simons was provided
with an office which he did not share with anyone, and a computer with Internet access.
The agency had instituted a policy on computer use stating that employees were to use
the Internet for official government business only and that accessing unlawful material
was specifically prohibited. The policy also stated that users shall understand that the
agency will periodically audit, inspect, and/or monitor the user’s Internet access as
deemed appropriate. CIA agents instructed its contractor for the management of the
agency’s computer network, upon initial discovery of prohibited internet activity
originating from Simons’ computer, to conduct a remote monitoring and examination of
Simons’ computer. After confirming that Simons had indeed downloaded pictures that
were pornographic in nature, all the files on the hard drive of Simon’s computer were
copied from a remote work station. Days later, the contractor’s representative finally
entered Simon’s office, removed the original hard drive on Simon’s computer, replaced it
with a copy, and gave the original to the agency security officer. Thereafter, the agency
secured warrants and searched Simons’ office in the evening when Simons was not
around. The search team copied the contents of Simons’ computer; computer diskettes
found in Simons’ desk drawer; computer files stored on the zip drive or on zip drive
diskettes; videotapes; and various documents, including personal correspondence. At his
trial, Simons moved to suppress these evidence, arguing that the searches of his office
and computer violated his Fourth Amendment rights. After a hearing, the district court
denied the motion and Simons was found guilty as charged.
Simons appealed his convictions. The US Supreme Court ruled that the searches of
Simons’ computer and office did not violate his Fourth Amendment rights and the first
search warrant was valid. It held that the search remains valid under the O’Connor
exception to the warrant requirement because evidence of the crime was discovered in
the course of an otherwise proper administrative inspection. Simons’ violation of the
agency’s Internet policy happened also to be a violation of criminal law; this does not
mean that said employer lost the capacity and interests of an employer. The warrantless
entry into Simons’ office was reasonable under the Fourth Amendment standard
announced in O’Connor because at the inception of the search, the employer had
"reasonable grounds for suspecting" that the hard drive would yield evidence of
misconduct, as the employer was already aware that Simons had misused his Internet
access to download over a thousand pornographic images. The retrieval of the hard
drive was reasonably related to the objective of the search, and the search was not
excessively intrusive. Thus, while Simons had a reasonable expectation of privacy in his
office, he did not have such legitimate expectation of privacy with regard to the files in his
computer.
x x x To establish a violation of his rights under the Fourth Amendment, Simons must
first prove that he had a legitimate expectation of privacy in the place searched or the
item seized. x x x And, in order to prove a legitimate expectation of privacy, Simons must
show that his subjective expectation of privacy is one that society is prepared to accept
as objectively reasonable. x x x
xxxx
x x x We conclude that the remote searches of Simons’ computer did not violate his
Fourth Amendment rights because, in light of the Internet policy, Simons lacked a
legitimate expectation of privacy in the files downloaded from the Internet. Additionally,
we conclude that Simons’ Fourth Amendment rights were not violated by FBIS’ retrieval
of Simons’ hard drive from his office.
Simons did not have a legitimate expectation of privacy with regard to the record
or fruits of his Internet use in light of the FBIS Internet policy. The policy clearly
stated that FBIS would "audit, inspect, and/or monitor" employees’ use of the
Internet, including all file transfers, all websites visited, and all e-mail messages,
"as deemed appropriate." x x x This policy placed employees on notice that they could
not reasonably expect that their Internet activity would be private. Therefore, regardless
of whether Simons subjectively believed that the files he transferred from the Internet
were private, such a belief was not objectively reasonable after FBIS notified him that it
would be overseeing his Internet use. x x x Accordingly, FBIS’ actions in remotely
searching and seizing the computer files Simons downloaded from the Internet did not
violate the Fourth Amendment.
xxxx
The burden is on Simons to prove that he had a legitimate expectation of privacy
in his office. x x x Here, Simons has shown that he had an office that he did not share.
As noted above, the operational realities of Simons’ workplace may have diminished his
legitimate privacy expectations. However, there is no evidence in the record of any
workplace practices, procedures, or regulations that had such an effect. We therefore
conclude that, on this record, Simons possessed a legitimate expectation of privacy
in his office.
xxxx
In the final analysis, this case involves an employee’s supervisor entering the employee’s
government office and retrieving a piece of government equipment in which the
employee had absolutely no expectation of privacy – equipment that the employer knew
contained evidence of crimes committed by the employee in the employee’s office. This
situation may be contrasted with one in which the criminal acts of a government
employee were unrelated to his employment. Here, there was a conjunction of the
conduct that violated the employer’s policy and the conduct that violated the criminal law.
We consider that FBIS’ intrusion into Simons’ office to retrieve the hard drive is one in
which a reasonable employer might engage. x x x42 (Citations omitted; emphasis
supplied.)
This Court, in Social Justice Society (SJS) v. Dangerous Drugs Board43 which involved
the constitutionality of a provision in R.A. No. 9165 requiring mandatory drug testing of
candidates for public office, students of secondary and tertiary schools, officers and
employees of public and private offices, and persons charged before the prosecutor’s
office with certain offenses, have also recognized the fact that there may be such
legitimate intrusion of privacy in the workplace.
The first factor to consider in the matter of reasonableness is the nature of the privacy
interest upon which the drug testing, which effects a search within the meaning of Sec. 2,
Art. III of the Constitution, intrudes. In this case, the office or workplace serves as the
backdrop for the analysis of the privacy expectation of the employees and the
reasonableness of drug testing requirement. The employees’ privacy interest in an office
is to a large extent circumscribed by the company’s work policies, the collective
bargaining agreement, if any, entered into by management and the bargaining unit, and
the inherent right of the employer to maintain discipline and efficiency in the workplace.
Their privacy expectation in a regulated office environment is, in fine, reduced; and a
degree of impingement upon such privacy has been upheld. (Emphasis supplied.)
Applying the analysis and principles announced in O’Connor and Simons to the case at
bar, we now address the following questions: (1) Did petitioner have a reasonable
expectation of privacy in his office and computer files?; and (2) Was the search
authorized by the CSC Chair, the copying of the contents of the hard drive on petitioner’s
computer reasonable in its inception and scope?
In this inquiry, the relevant surrounding circumstances to consider include "(1) the
employee’s relationship to the item seized; (2) whether the item was in the immediate
control of the employee when it was seized; and (3) whether the employee took actions
to maintain his privacy in the item." These factors are relevant to both the subjective and
objective prongs of the reasonableness inquiry, and we consider the two questions
together.44 Thus, where the employee used a password on his computer, did not share
his office with co-workers and kept the same locked, he had a legitimate expectation of
privacy and any search of that space and items located therein must comply with the
Fourth Amendment.45
We answer the first in the negative. Petitioner failed to prove that he had an actual
(subjective) expectation of privacy either in his office or government-issued computer
which contained his personal files. Petitioner did not allege that he had a separate
enclosed office which he did not share with anyone, or that his office was always locked
and not open to other employees or visitors. Neither did he allege that he used
passwords or adopted any means to prevent other employees from accessing his
computer files. On the contrary, he submits that being in the public assistance office of
the CSC-ROIV, he normally would have visitors in his office like friends, associates and
even unknown people, whom he even allowed to use his computer which to him seemed
a trivial request. He described his office as "full of people, his friends, unknown people"
and that in the past 22 years he had been discharging his functions at the PALD, he is
"personally assisting incoming clients, receiving documents, drafting cases on appeals,
in charge of accomplishment report, Mamamayan Muna Program, Public Sector
Unionism, Correction of name, accreditation of service, and hardly had anytime for
himself alone, that in fact he stays in the office as a paying customer." 46 Under this
scenario, it can hardly be deduced that petitioner had such expectation of privacy that
society would recognize as reasonable.
Moreover, even assuming arguendo, in the absence of allegation or proof of the
aforementioned factual circumstances, that petitioner had at least a subjective
expectation of privacy in his computer as he claims, such is negated by the presence of
policy regulating the use of office computers, as in Simons.
Office Memorandum No. 10, S. 2002 "Computer Use Policy (CUP)" explicitly provides:
POLICY
1. The Computer Resources are the property of the Civil Service Commission
and may be used only for legitimate business purposes.
2. Users shall be permitted access to Computer Resources to assist them in the
performance of their respective jobs.
3. Use of the Computer Resources is a privilege that may be revoked at any
given time.
xxxx
No Expectation of Privacy
4. No expectation of privacy. Users except the Members of the Commission shall
not have an expectation of privacy in anything they create, store, send, or receive
on the computer system.
The Head of the Office for Recruitment, Examination and Placement shall select
and assign Users to handle the confidential examination data and processes.
5. Waiver of privacy rights. Users expressly waive any right to privacy in anything
they create, store, send, or receive on the computer through the Internet or any
other computer network. Users understand that the CSC may use human or
automated means to monitor the use of its Computer Resources.
6. Non-exclusivity of Computer Resources. A computer resource is not a
personal property or for the exclusive use of a User to whom a memorandum of
receipt (MR) has been issued. It can be shared or operated by other
users. However, he is accountable therefor and must insure its care and
maintenance.
xxxx
Passwords
12. Responsibility for passwords. Users shall be responsible for safeguarding
their passwords for access to the computer system. Individual passwords shall
not be printed, stored online, or given to others. Users shall be responsible for all
transactions made using their passwords. No User may access the computer
system with another User’s password or account.
13. Passwords do not imply privacy. Use of passwords to gain access to the
computer system or to encode particular files or messages does not imply that
Users have an expectation of privacy in the material they create or receive on the
computer system. The Civil Service Commission has global passwords that
permit access to all materials stored on its networked computer system
regardless of whether those materials have been encoded with a particular
User’s password. Only members of the Commission shall authorize the
application of the said global passwords.
x x x x47 (Emphasis supplied.)
The CSC in this case had implemented a policy that put its employees on notice that
they have no expectation of privacy in anything they create, store, send or receive on
the office computers, and that the CSC may monitor the use of the computer resources
using both automated or human means. This implies that on-the-spot inspections may be
done to ensure that the computer resources were used only for such legitimate business
purposes.
One of the factors stated in O’Connor which are relevant in determining whether an
employee’s expectation of privacy in the workplace is reasonable is the existence of a
workplace privacy policy.48 In one case, the US Court of Appeals Eighth Circuit held that
a state university employee has not shown that he had a reasonable expectation of
privacy in his computer files where the university’s computer policy, the computer user is
informed not to expect privacy if the university has a legitimate reason to conduct a
search. The user is specifically told that computer files, including e-mail, can be searched
when the university is responding to a discovery request in the course of litigation.
Petitioner employee thus cannot claim a violation of Fourth Amendment rights when
university officials conducted a warrantless search of his computer for work-related
materials.49
As to the second point of inquiry on the reasonableness of the search conducted on
petitioner’s computer, we answer in the affirmative.
The search of petitioner’s computer files was conducted in connection with investigation
of work-related misconduct prompted by an anonymous letter-complaint addressed to
Chairperson David regarding anomalies in the CSC-ROIV where the head of the
Mamamayan Muna Hindi Mamaya Na division is supposedly "lawyering" for individuals
with pending cases in the CSC. Chairperson David stated in her sworn affidavit:
8. That prior to this, as early as 2006, the undersigned has received several text
messages from unknown sources adverting to certain anomalies in Civil Service
Commission Regional Office IV (CSCRO IV) such as, staff working in another
government agency, "selling" cases and aiding parties with pending cases, all done
during office hours and involved the use of government properties;
9. That said text messages were not investigated for lack of any verifiable leads and
details sufficient to warrant an investigation;
10. That the anonymous letter provided the lead and details as it pinpointed the persons
and divisions involved in the alleged irregularities happening in CSCRO IV;
11. That in view of the seriousness of the allegations of irregularities happening in
CSCRO IV and its effect on the integrity of the Commission, I decided to form a team of
Central Office staff to back up the files in the computers of the Public Assistance and
Liaison Division (PALD) and Legal Division;
x x x x50
A search by a government employer of an employee’s office is justified at inception when
there are reasonable grounds for suspecting that it will turn up evidence that the
employee is guilty of work-related misconduct.51 Thus, in the 2004 case decided by the
US Court of Appeals Eighth Circuit, it was held that where a government agency’s
computer use policy prohibited electronic messages with pornographic content and in
addition expressly provided that employees do not have any personal privacy rights
regarding their use of the agency information systems and technology, the government
employee had no legitimate expectation of privacy as to the use and contents of his
office computer, and therefore evidence found during warrantless search of the computer
was admissible in prosecution for child pornography. In that case, the defendant
employee’s computer hard drive was first remotely examined by a computer information
technician after his supervisor received complaints that he was inaccessible and had
copied and distributed non-work-related e-mail messages throughout the office. When
the supervisor confirmed that defendant had used his computer to access the prohibited
websites, in contravention of the express policy of the agency, his computer tower and
floppy disks were taken and examined. A formal administrative investigation ensued and
later search warrants were secured by the police department. The initial remote search
of the hard drive of petitioner’s computer, as well as the subsequent warrantless
searches was held as valid under the O’Connor ruling that a public employer can
investigate work-related misconduct so long as any search is justified at inception and is
reasonably related in scope to the circumstances that justified it in the first place. 52
Under the facts obtaining, the search conducted on petitioner’s computer was justified at
its inception and scope. We quote with approval the CSC’s discussion on the
reasonableness of its actions, consistent as it were with the guidelines established by
O’Connor:
Even conceding for a moment that there is no such administrative policy, there is no
doubt in the mind of the Commission that the search of Pollo’s computer has
successfully passed the test of reasonableness for warrantless searches in the
workplace as enunciated in the above-discussed American authorities. It bears
emphasis that the Commission pursued the search in its capacity as a government
employer and that it was undertaken in connection with an investigation involving
a work-related misconduct, one of the circumstances exempted from the warrant
requirement. At the inception of the search, a complaint was received recounting that a
certain division chief in the CSCRO No. IV was "lawyering" for parties having pending
cases with the said regional office or in the Commission. The nature of the imputation
was serious, as it was grievously disturbing. If, indeed, a CSC employee was found
to be furtively engaged in the practice of "lawyering" for parties with pending cases
before the Commission would be a highly repugnant scenario, then such a case would
have shattering repercussions. It would undeniably cast clouds of doubt upon the
institutional integrity of the Commission as a quasi-judicial agency, and in the process,
render it less effective in fulfilling its mandate as an impartial and objective dispenser of
administrative justice. It is settled that a court or an administrative tribunal must not only
be actually impartial but must be seen to be so, otherwise the general public would not
have any trust and confidence in it.
Considering the damaging nature of the accusation, the Commission had to act
fast, if only to arrest or limit any possible adverse consequence or fall-out. Thus, on the
same date that the complaint was received, a search was forthwith conducted involving
the computer resources in the concerned regional office. That it was the computers
that were subjected to the search was justified since these furnished the easiest
means for an employee to encode and store documents. Indeed, the computers
would be a likely starting point in ferreting out incriminating evidence.
Concomitantly, the ephemeral nature of computer files, that is, they could easily
be destroyed at a click of a button, necessitated drastic and immediate
action. Pointedly, to impose the need to comply with the probable cause requirement
would invariably defeat the purpose of the wok-related investigation.
Worthy to mention, too, is the fact that the Commission effected the warrantless search
in an open and transparent manner. Officials and some employees of the regional office,
who happened to be in the vicinity, were on hand to observe the process until its
completion. In addition, the respondent himself was duly notified, through text
messaging, of the search and the concomitant retrieval of files from his computer.
All in all, the Commission is convinced that the warrantless search done on computer
assigned to Pollo was not, in any way, vitiated with unconstitutionality. It was a
reasonable exercise of the managerial prerogative of the Commission as an employer
aimed at ensuring its operational effectiveness and efficiency by going after the work-
related misfeasance of its employees. Consequently, the evidence derived from the
questioned search are deemed admissible.53
Petitioner’s claim of violation of his constitutional right to privacy must necessarily fail.
His other argument invoking the privacy of communication and correspondence under
Section 3(1), Article III of the 1987 Constitution is also untenable considering the
recognition accorded to certain legitimate intrusions into the privacy of employees in the
government workplace under the aforecited authorities. We likewise find no merit in his
contention that O’Connor and Simons are not relevant because the present case does
not involve a criminal offense like child pornography. As already mentioned, the search
of petitioner’s computer was justified there being reasonable ground for suspecting that
the files stored therein would yield incriminating evidence relevant to the investigation
being conducted by CSC as government employer of such misconduct subject of the
anonymous complaint. This situation clearly falls under the exception to the warrantless
requirement in administrative searches defined in O’Connor.
The Court is not unaware of our decision in Anonymous Letter-Complaint against Atty.
Miguel Morales, Clerk of Court, Metropolitan Trial Court of Manila54 involving a branch
clerk (Atty. Morales) who was investigated on the basis of an anonymous letter alleging
that he was consuming his working hours filing and attending to personal cases, using
office supplies, equipment and utilities. The OCA conducted a spot investigation aided by
NBI agents. The team was able to access Atty. Morales’ personal computer and print two
documents stored in its hard drive, which turned out to be two pleadings, one filed in the
CA and another in the RTC of Manila, both in the name of another lawyer. Atty. Morales’
computer was seized and taken in custody of the OCA but was later ordered released on
his motion, but with order to the MISO to first retrieve the files stored therein. The OCA
disagreed with the report of the Investigating Judge that there was no evidence to
support the charge against Atty. Morales as no one from the OCC personnel who were
interviewed would give a categorical and positive statement affirming the charges against
Atty. Morales, along with other court personnel also charged in the same case. The OCA
recommended that Atty. Morales should be found guilty of gross misconduct. The Court
En Banc held that while Atty. Morales may have fallen short of the exacting standards
required of every court employee, the Court cannot use the evidence obtained from his
personal computer against him for it violated his constitutional right against unreasonable
searches and seizures. The Court found no evidence to support the claim of OCA that
they were able to obtain the subject pleadings with the consent of Atty. Morales, as in
fact the latter immediately filed an administrative case against the persons who
conducted the spot investigation, questioning the validity of the investigation and
specifically invoking his constitutional right against unreasonable search and seizure.
And as there is no other evidence, apart from the pleadings, retrieved from the unduly
confiscated personal computer of Atty. Morales, to hold him administratively liable, the
Court had no choice but to dismiss the charges against him for insufficiency of evidence.
The above case is to be distinguished from the case at bar because, unlike the former
which involved a personal computer of a court employee, the computer from which the
personal files of herein petitioner were retrieved is a government-issued computer, hence
government property the use of which the CSC has absolute right to regulate and
monitor. Such relationship of the petitioner with the item seized (office computer) and
other relevant factors and circumstances under American Fourth Amendment
jurisprudence, notably the existence of CSC MO 10, S. 2007 on Computer Use Policy,
failed to establish that petitioner had a reasonable expectation of privacy in the office
computer assigned to him.
Having determined that the personal files copied from the office computer of petitioner
are admissible in the administrative case against him, we now proceed to the issue of
whether the CSC was correct in finding the petitioner guilty of the charges and
dismissing him from the service.
Well-settled is the rule that the findings of fact of quasi-judicial agencies, like the CSC,
are accorded not only respect but even finality if such findings are supported by
substantial evidence. Substantial evidence is such amount of relevant evidence which a
reasonable mind might accept as adequate to support a conclusion, even if other equally
reasonable minds might conceivably opine otherwise.55
The CSC based its findings on evidence consisting of a substantial number of drafts of
legal pleadings and documents stored in his office computer, as well as the sworn
affidavits and testimonies of the witnesses it presented during the formal investigation.
According to the CSC, these documents were confirmed to be similar or exactly the
same content-wise with those on the case records of some cases pending either with
CSCRO No. IV, CSC-NCR or the Commission Proper. There were also substantially
similar copies of those pleadings filed with the CA and duly furnished the Commission.
Further, the CSC found the explanation given by petitioner, to the effect that those files
retrieved from his computer hard drive actually belonged to his lawyer friends Estrellado
and Solosa whom he allowed the use of his computer for drafting their pleadings in the
cases they handle, as implausible and doubtful under the circumstances. We hold that
the CSC’s factual finding regarding the authorship of the subject pleadings and misuse of
the office computer is well-supported by the evidence on record, thus:
It is also striking to note that some of these documents were in the nature of pleadings
responding to the orders, decisions or resolutions of these offices or directly in opposition
to them such as a petition for certiorari or a motion for reconsideration of CSC
Resolution. This indicates that the author thereof knowingly and willingly participated in
the promotion or advancement of the interests of parties contrary or antagonistic to the
Commission. Worse, the appearance in one of the retrieved documents the phrase, "Eric
N. Estr[e]llado, Epal kulang ang bayad mo," lends plausibility to an inference that the
preparation or drafting of the legal pleadings was pursued with less than a laudable
motivation. Whoever was responsible for these documents was simply doing the same
for the money – a "legal mercenary" selling or purveying his expertise to the highest
bidder, so to speak.
Inevitably, the fact that these documents were retrieved from the computer of Pollo
raises the presumption that he was the author thereof. This is because he had a control
of the said computer. More significantly, one of the witnesses, Margarita Reyes,
categorically testified seeing a written copy of one of the pleadings found in the case
records lying on the table of the respondent. This was the Petition for Review in the case
of Estrellado addressed to the Court of Appeals. The said circumstances indubitably
demonstrate that Pollo was secretly undermining the interest of the Commission, his very
own employer.
To deflect any culpability, Pollo would, however, want the Commission to believe that the
documents were the personal files of some of his friends, including one Attorney
Ponciano Solosa, who incidentally served as his counsel of record during the formal
investigation of this case. In fact, Atty. Solosa himself executed a sworn affidavit to this
effect. Unfortunately, this contention of the respondent was directly rebutted by the
prosecution witness, Reyes, who testified that during her entire stay in the PALD, she
never saw Atty. Solosa using the computer assigned to the respondent. Reyes more
particularly stated that she worked in close proximity with Pollo and would have known if
Atty. Solosa, whom she personally knows, was using the computer in question. Further,
Atty. Solosa himself was never presented during the formal investigation to confirm his
sworn statement such that the same constitutes self-serving evidence unworthy of weight
and credence. The same is true with the other supporting affidavits, which Pollo
submitted.
At any rate, even admitting for a moment the said contention of the respondent, it
evinces the fact that he was unlawfully authorizing private persons to use the computer
assigned to him for official purpose, not only once but several times gauging by the
number of pleadings, for ends not in conformity with the interests of the Commission. He
was, in effect, acting as a principal by indispensable cooperation…Or at the very least,
he should be responsible for serious misconduct for repeatedly allowing CSC resources,
that is, the computer and the electricity, to be utilized for purposes other than what they
were officially intended.
Further, the Commission cannot lend credence to the posturing of the appellant that the
line appearing in one of the documents, "Eric N. Estrellado, Epal kulang ang bayad mo,"
was a private joke between the person alluded to therein, Eric N. Estrellado, and his
counsel, Atty. Solosa, and not indicative of anything more sinister. The same is too
preposterous to be believed. Why would such a statement appear in a legal pleading
stored in the computer assigned to the respondent, unless he had something to do with
it?56
Petitioner assails the CA in not ruling that the CSC should not have entertained an
anonymous complaint since Section 8 of CSC Resolution No. 99-1936 (URACC)
requires a verified complaint:
Rule II – Disciplinary Cases
SEC. 8. Complaint. - A complaint against a civil service official or employee shall not be
given due course unless it is in writing and subscribed and sworn to by the complainant.
However, in cases initiated by the proper disciplining authority, the complaint need
not be under oath.
No anonymous complaint shall be entertained unless there is obvious truth or merit to
the allegation therein or supported by documentary or direct evidence, in which case
the person complained of may be required to comment.
xxxx
We need not belabor this point raised by petitioner. The administrative complaint is
deemed to have been initiated by the CSC itself when Chairperson David, after a spot
inspection and search of the files stored in the hard drive of computers in the two
divisions adverted to in the anonymous letter -- as part of the disciplining authority’s own
fact-finding investigation and information-gathering -- found a prima facie case against
the petitioner who was then directed to file his comment. As this Court held in Civil
Service Commission v. Court of Appeals 57 --
Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of E.O. No. 292 and Section
8, Rule II of Uniform Rules on Administrative Cases in the Civil Service, a complaint may
be initiated against a civil service officer or employee by the appropriate disciplining
authority, even without being subscribed and sworn to. Considering that the CSC, as the
disciplining authority for Dumlao, filed the complaint, jurisdiction over Dumlao was validly
acquired. (Emphasis supplied.)
As to petitioner’s challenge on the validity of CSC OM 10, S. 2002 (CUP), the same
deserves scant consideration. The alleged infirmity due to the said memorandum order
having been issued solely by the CSC Chair and not the Commission as a collegial body,
upon which the dissent of Commissioner Buenaflor is partly anchored, was already
explained by Chairperson David in her Reply to the Addendum to Commissioner
Buenaflor’s previous memo expressing his dissent to the actions and disposition of the
Commission in this case. According to Chairperson David, said memorandum order was
in fact exhaustively discussed, provision by provision in the January 23, 2002
Commission Meeting, attended by her and former Commissioners Erestain, Jr. and
Valmores. Hence, the Commission En Banc at the time saw no need to issue a
Resolution for the purpose and further because the CUP being for internal use of the
Commission, the practice had been to issue a memorandum order. 58 Moreover, being an
administrative rule that is merely internal in nature, or which regulates only the personnel
of the CSC and not the public, the CUP need not be published prior to its effectivity. 59
In fine, no error or grave abuse of discretion was committed by the CA in affirming the
CSC’s ruling that petitioner is guilty of grave misconduct, dishonesty, conduct prejudicial
to the best interest of the service, and violation of R.A. No. 6713. The gravity of these
offenses justified the imposition on petitioner of the ultimate penalty of dismissal with all
its accessory penalties, pursuant to existing rules and regulations.
WHEREFORE, the petition for review on certiorari is DENIED. The Decision dated
October 11, 2007 and Resolution dated February 29, 2008 of the Court of Appeals in CA-
G.R. SP No. 98224 are AFFIRMED.
With costs against the petitioner.
SO ORDERED.
G.R. No. 110662 August 4, 1994
TERESITA SALCEDO-ORTANEZ, petitioner,
vs.
COURT OF APPEALS, HON. ROMEO F. ZAMORA, Presiding Judge, Br. 94,
Regional Trial Court of Quezon City and RAFAEL S. ORTANEZ, respondents.
Oscar A. Inocentes & Associates Law Office for petitioner.
Efren A. Santos for private respondent.
PADILLA, J.:
This is a petition for review under Rule 45 of the Rules of Court which seeks to reverse
the decision * of respondent Court of Appeals in CA-G. R. SP No. 28545 entitled "Teresita Salcedo-Ortanez versus
Hon. Romeo F. Zamora, Presiding Judge, Br. 94, Regional Trial Court of Quezon City and Rafael S. Ortanez".
The relevant facts of the case are as follows:
On 2 May 1990, private respondent Rafael S. Ortanez filed with the Regional Trial Court
of Quezon City a complaint for annulment of marriage with damages against petitioner
Teresita Salcedo-Ortanez, on grounds of lack of marriage license and/or psychological
incapacity of the petitioner. The complaint was docketed as Civil Case No. Q-90-5360
and raffled to Branch 94, RTC of Quezon City presided over by respondent Judge
Romeo F. Zamora.
Private respondent, after presenting his evidence, orally formally offered in evidence
Exhibits "A" to "M".
Among the exhibits offered by private respondent were three (3) cassette tapes of
alleged telephone conversations between petitioner and unidentified persons.
Petitioner submitted her Objection/Comment to private respondent's oral offer of
evidence on 9 June 1992; on the same day, the trial court admitted all of private
respondent's offered evidence.
A motion for reconsideration from petitioner was denied on 23 June 1992.
A petition for certiorari was then filed by petitioner in the Court of Appeals assailing the
admission in evidence of the aforementioned cassette tapes.
On 10 June 1993, the Court of Appeals rendered judgment which is the subject of the
present petition, which in part reads:
It is much too obvious that the petition will have to fail, for two basic
reasons:
(1) Tape recordings are not inadmissible per se. They and any other
variant thereof can be admitted in evidence for certain purposes,
depending on how they are presented and offered and on how the trial
judge utilizes them in the interest of truth and fairness and the even
handed administration of justice.
(2) A petition for certiorari is notoriously inappropriate to rectify a
supposed error in admitting evidence adduced during trial. The ruling on
admissibility is interlocutory; neither does it impinge on jurisdiction. If it is
erroneous, the ruling should be questioned in the appeal from the
judgment on the merits and not through the special civil action
of certiorari. The error, assuming gratuitously that it exists, cannot be
anymore than an error of law, properly correctible by appeal and not
by certiorari. Otherwise, we will have the sorry spectacle of a case being
subject of a counterproductive "ping-pong" to and from the appellate
court as often as a trial court is perceived to have made an error in any of
its rulings with respect to evidentiary matters in the course of trial. This
we cannot sanction.
WHEREFORE, the petition for certiorari being devoid of merit, is hereby
DISMISSED. 1
From this adverse judgment, petitioner filed the present petition for review, stating:
Grounds for Allowance of the Petition
10. The decision of respondent [Court of Appeals] has no basis in law nor
previous decision of the Supreme Court.
10.1 In affirming the questioned order of respondent
judge, the Court of Appeals has decided a question of
substance not theretofore determined by the Supreme
Court as the question of admissibility in evidence of tape
recordings has not, thus far, been addressed and decided
squarely by the Supreme Court.
11. In affirming the questioned order of respondent judge, the Court of
Appeals has likewise rendered a decision in a way not in accord with law
and with applicable decisions of the Supreme Court.
11.1 Although the questioned order is interlocutory in
nature, the same can still be [the] subject of a petition
for certiorari. 2
The main issue to be resolved is whether or not the remedy of certiorari under Rule 65 of
the Rules of Court was properly availed of by the petitioner in the Court of Appeals.
The extraordinary writ of certiorari is generally not available to challenge an interlocutory
order of a trial court. The proper remedy in such cases is an ordinary appeal from an
adverse judgment, incorporating in said appeal the grounds for assailing the interlocutory
order.
However, where the assailed interlocutory order is patently erroneous and the remedy of
appeal would not afford adequate and expeditious relief, the Court may
allow certiorari as a mode of redress. 3
In the present case, the trial court issued the assailed order admitting all of the evidence
offered by private respondent, including tape recordings of telephone conversations of
petitioner with unidentified persons. These tape recordings were made and obtained
when private respondent allowed his friends from the military to wire tap his home
telephone. 4
Rep. Act No. 4200 entitled "An Act to Prohibit and Penalize Wire Tapping and Other
Related Violations of the Privacy of Communication, and for other purposes" expressly
makes such tape recordings inadmissible in evidence. The relevant provisions of Rep.
Act No. 4200 are as follows:
Sec. 1. It shall be unlawful for any person, not being authorized
by all the parties to any private communication or spoken word, to
tap any wire or cable, or by using any other device or
arrangement, to secretly overhear, intercept, or record such
communication or spoken word by using a device commonly
known as a dictaphone or dictagraph or detectaphone or walkie-
talkie or tape-recorder, or however otherwise described. . . .
Sec. 4. Any communication or spoken word, or the existence,
contents, substance, purport, or meaning of the same or any part
thereof, or any information therein contained, obtained or secured
by any person in violation of the preceding sections of this Act
shall not be admissible in evidence in any judicial, quasi-judicial,
legislative or administrative hearing or investigation.
Clearly, respondents trial court and Court of Appeals failed to consider the afore-quoted
provisions of the law in admitting in evidence the cassette tapes in question. Absent a
clear showing that both parties to the telephone conversations allowed the recording of
the same, the inadmissibility of the subject tapes is mandatory under Rep. Act No. 4200.
Additionally, it should be mentioned that the above-mentioned Republic Act in Section 2
thereof imposes a penalty of imprisonment of not less than six (6) months and up to six
(6) years for violation of said Act. 5
We need not address the other arguments raised by the parties, involving the
applicability of American jurisprudence, having arrived at the conclusion that the subject
cassette tapes are inadmissible in evidence under Philippine law.
WHEREFORE, the decision of the Court of Appeals in CA-G. R. SP No. 28545 is hereby
SET ASIDE. The subject cassette tapes are declared inadmissible in evidence.
SO ORDERED.
G.R. No. 93833 September 28, 1995
SOCORRO D. RAMIREZ, petitioner,
vs.
HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, respondents.
KAPUNAN, J.:
A civil case damages was filed by petitioner Socorro D. Ramirez in the Regional Trial
Court of Quezon City alleging that the private respondent, Ester S. Garcia, in a
confrontation in the latter's office, allegedly vexed, insulted and humiliated her in a
"hostile and furious mood" and in a manner offensive to petitioner's dignity and
personality," contrary to morals, good customs and public policy." 1
In support of her claim, petitioner produced a verbatim transcript of the event and sought
moral damages, attorney's fees and other expenses of litigation in the amount of
P610,000.00, in addition to costs, interests and other reliefs awardable at the trial court's
discretion. The transcript on which the civil case was based was culled from a tape
recording of the confrontation made by petitioner. 2 The transcript reads as follows:
Plaintiff Soccoro D. Ramirez (Chuchi) — Good Afternoon
M'am.
Defendant Ester S. Garcia (ESG) — Ano ba ang nangyari
sa 'yo, nakalimot ka na kung paano ka napunta rito, porke
member ka na, magsumbong ka kung ano ang gagawin
ko sa 'yo.
CHUCHI — Kasi, naka duty ako noon.
ESG — Tapos iniwan no. (Sic)
CHUCHI — Hindi m'am, pero ilan beses na nila akong
binalikan, sabing ganoon —
ESG — Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic)
mag explain ka, kasi hanggang 10:00 p.m., kinabukasan
hindi ka na pumasok. Ngayon ako ang babalik sa 'yo,
nag-aaply ka sa States, nag-aaply ka sa review mo, kung
kakailanganin ang certification mo, kalimutan mo na kasi
hindi ka sa akin makakahingi.
CHUCHI — Hindi M'am. Kasi ang ano ko talaga noon i-
cocontinue ko up to 10:00 p.m.
ESG — Bastos ka, nakalimutan mo na kung paano ka
pumasok dito sa hotel. Magsumbong ka sa Union kung
gusto mo. Nakalimutan mo na kung paano ka nakapasok
dito "Do you think that on your own makakapasok ka kung
hindi ako. Panunumbyoyan na kita (Sinusumbatan na
kita).
CHUCHI — Itutuloy ko na M'am sana ang duty ko.
ESG — Kaso ilang beses na akong binabalikan doon ng
mga no (sic) ko.
ESG — Nakalimutan mo na ba kung paano ka pumasok
sa hotel, kung on your own merit alam ko naman kung
gaano ka "ka bobo" mo. Marami ang nag-aaply alam
kong hindi ka papasa.
CHUCHI — Kumuha kami ng exam noon.
ESG — Oo, pero hindi ka papasa.
CHUCHI — Eh, bakit ako ang nakuha ni Dr. Tamayo
ESG — Kukunin ka kasi ako.
CHUCHI — Eh, di sana —
ESG — Huwag mong ipagmalaki na may utak ka
kasi wala kang utak. Akala mo ba makukuha ka dito kung
hindi ako.
CHUCHI — Mag-eexplain ako.
ESG — Huwag na, hindi ako mag-papa-explain sa 'yo,
makaalala ka kung paano ka puma-rito. "Putang-ina"
sasabi-sabihin mo kamag-anak ng nanay at tatay mo ang
mga magulang ko.
 ESG — Wala na akong pakialam, dahil nandito ka sa
loob, nasa labas ka puwede ka ng hindi pumasok, okey
yan nasaloob ka umalis ka doon.
CHUCHI — Kasi M'am, binbalikan ako ng mga taga
Union.
ESG — Nandiyan na rin ako, pero huwag mong kalimutan
na hindi ka makakapasok kung hindi ako. Kung hindi mo
kinikilala yan okey lang sa akin, dahil tapos ka na.
CHUCHI — Ina-ano ko m'am na utang na loob.
ESG — Huwag na lang, hindi mo utang na loob, kasi
kung baga sa no, nilapastangan mo ako.
CHUCHI — Paano kita nilapastanganan?
ESG — Mabuti pa lumabas ka na. Hindi na ako
makikipagusap sa 'yo. Lumabas ka na. Magsumbong ka.3
As a result of petitioner's recording of the event and alleging that the said act of secretly
taping the confrontation was illegal, private respondent filed a criminal case before the
Regional Trial Court of Pasay City for violation of Republic Act 4200, entitled "An Act to
prohibit and penalize wire tapping and other related violations of private communication,
and other purposes." An information charging petitioner of violation of the said Act, dated
October 6, 1988 is quoted herewith:
INFORMATION
The Undersigned Assistant City Fiscal Accusses Socorro D. Ramirez of
Violation of Republic Act No. 4200, committed as follows:
That on or about the 22nd day of February, 1988, in
Pasay City Metro Manila, Philippines, and within the
jurisdiction of this honorable court, the above-named
accused, Socorro D. Ramirez not being authorized by
Ester S. Garcia to record the latter's conversation with
said accused, did then and there willfully, unlawfully and
feloniously, with the use of a tape recorder secretly record
the said conversation and thereafter communicate in
writing the contents of the said recording to other person.
Contrary to law.
Pasay City, Metro Manila, September 16, 1988.
MARIANO
M.
CUNETA
Asst. City
Fiscal
Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash the Information on
the ground that the facts charged do not constitute an offense, particularly a violation of
R.A. 4200. In an order May 3, 1989, the trial court granted the Motion to Quash, agreeing
with petitioner that 1) the facts charged do not constitute an offense under R.A. 4200;
and that 2) the violation punished by R.A. 4200 refers to a the taping of a communication
by a person other than a participant to the communication.4
From the trial court's Order, the private respondent filed a Petition for Review
on Certiorari with this Court, which forthwith referred the case to the Court of Appeals in
a Resolution (by the First Division) of June 19, 1989.
On February 9, 1990, respondent Court of Appeals promulgated its assailed Decision
declaring the trial court's order of May 3, 1989 null and void, and holding that:
[T]he allegations sufficiently constitute an offense punishable under
Section 1 of R.A. 4200. In thus quashing the information based on the
ground that the facts alleged do not constitute an offense, the respondent
judge acted in grave abuse of discretion correctible by certiorari.5
Consequently, on February 21, 1990, petitioner filed a Motion for Reconsideration which
respondent Court of Appeals denied in its Resolution6 dated June 19, 1990. Hence, the
instant petition.
Petitioner vigorously argues, as her "main and principal issue" 7 that the applicable
provision of Republic Act 4200 does not apply to the taping of a private conversation by
one of the parties to the conversation. She contends that the provision merely refers to
the unauthorized taping of a private conversation by a party other than those involved in
the communication.8 In relation to this, petitioner avers that the substance or content of
the conversation must be alleged in the Information, otherwise the facts charged would
not constitute a violation of R.A. 4200. 9 Finally, petitioner agues that R.A. 4200 penalizes
the taping of a "private communication," not a "private conversation" and that
consequently, her act of secretly taping her conversation with private respondent was not
illegal under the said act. 10
We disagree.
First, legislative intent is determined principally from the language of a statute. Where the
language of a statute is clear and unambiguous, the law is applied according to its
express terms, and interpretation would be resorted to only where a literal interpretation
would be either impossible 11 or absurb or would lead to an injustice. 12
Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized Wire Tapping and
Other Related Violations of Private Communication and Other Purposes," provides:
Sec. 1. It shall be unlawfull for any person, not being authorized by all the
parties to any private communication or spoken word, to tap any wire or
cable, or by using any other device or arrangement, to secretly overhear,
intercept, or record such communication or spoken word by using a
device commonly known as a dictaphone or dictagraph or detectaphone
or walkie-talkie or tape recorder, or however otherwise described.
The aforestated provision clearly and unequivocally makes it illegal for any person, not
authorized by all the parties to any private communication to secretly record such
communication by means of a tape recorder. The law makes no distinction as to whether
the party sought to be penalized by the statute ought to be a party other than or different
from those involved in the private communication. The statute's intent to penalize all
persons unauthorized to make such recording is underscored by the use of the qualifier
"any". Consequently, as respondent Court of Appeals correctly concluded, "even a
(person) privy to a communication who records his private conversation with another
without the knowledge of the latter (will) qualify as a violator" 13 under this provision of
R.A. 4200.
A perusal of the Senate Congressional Records, moreover, supports the respondent
court's conclusion that in enacting R.A. 4200 our lawmakers indeed contemplated to
make illegal, unauthorized tape recording of private conversations or communications
taken either by the parties themselves or by third persons. Thus:
xxx xxx xxx
Senator Tañada: That qualified only "overhear".
Senator Padilla: So that when it is intercepted or recorded, the element of
secrecy would not appear to be material. Now, suppose, Your Honor, the
recording is not made by all the parties but by some parties and involved
not criminal cases that would be mentioned under section 3 but would
cover, for example civil cases or special proceedings whereby a
recording is made not necessarily by all the parties but perhaps by some
in an effort to show the intent of the parties because the actuation of the
parties prior, simultaneous even subsequent to the contract or the act
may be indicative of their intention. Suppose there is such a recording,
would you say, Your Honor, that the intention is to cover it within the
purview of this bill or outside?
Senator Tañada: That is covered by the purview of this bill, Your Honor.
Senator Padilla: Even if the record should be used not in the prosecution
of offense but as evidence to be used in Civil Cases or special
proceedings?
Senator Tañada: That is right. This is a complete ban on tape recorded
conversations taken without the authorization of all the parties.
Senator Padilla: Now, would that be reasonable, your Honor?
Senator Tañada: I believe it is reasonable because it is not sporting to
record the observation of one without his knowing it and then using it
against him. It is not fair, it is not sportsmanlike. If the purpose; Your
honor, is to record the intention of the parties. I believe that all the parties
should know that the observations are being recorded.
Senator Padilla: This might reduce the utility of recorders.
Senator Tañada: Well no. For example, I was to say that in meetings of
the board of directors where a tape recording is taken, there is no
objection to this if all the parties know. It is but fair that the people whose
remarks and observations are being made should know that the
observations are being recorded.
Senator Padilla: Now, I can understand.
Senator Tañada: That is why when we take statements of persons, we
say: "Please be informed that whatever you say here may be used
against you." That is fairness and that is what we demand. Now, in spite
of that warning, he makes damaging statements against his own interest,
well, he cannot complain any more. But if you are going to take a
recording of the observations and remarks of a person without him
knowing that it is being taped or recorded, without him knowing that what
is being recorded may be used against him, I think it is unfair.
xxx xxx xxx
 (Congression Record, Vol. III, No. 31, p. 584, March 12, 1964)
Senator Diokno: Do you understand, Mr. Senator, that under Section 1 of
the bill as now worded, if a party secretly records a public speech, he
would be penalized under Section 1? Because the speech is public, but
the recording is done secretly.
Senator Tañada: Well, that particular aspect is not contemplated by the
bill. It is the communication between one person and another person —
not between a speaker and a public.
xxx xxx xxx
(Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964)
xxx xxx xxx
The unambiguity of the express words of the provision, taken together with the above-
quoted deliberations from the Congressional Record, therefore plainly supports the view
held by the respondent court that the provision seeks to penalize even those privy to the
private communications. Where the law makes no distinctions, one does not distinguish.
Second, the nature of the conversations is immaterial to a violation of the statute. The
substance of the same need not be specifically alleged in the information. What R.A.
4200 penalizes are the acts of secretly overhearing, intercepting or recording private
communications by means of the devices enumerated therein. The mere allegation that
an individual made a secret recording of a private communication by means of a tape
recorder would suffice to constitute an offense under Section 1 of R.A. 4200. As the
Solicitor General pointed out in his COMMENT before the respondent court: "Nowhere
(in the said law) is it required that before one can be regarded as a violator, the nature of
the conversation, as well as its communication to a third person should be professed." 14
Finally, petitioner's contention that the phrase "private communication" in Section 1 of
R.A. 4200 does not include "private conversations" narrows the ordinary meaning of the
word "communication" to a point of absurdity. The word communicate comes from the
latin word communicare, meaning "to share or to impart." In its ordinary signification,
communication connotes the act of sharing or imparting signification, communication
connotes the act of sharing or imparting, as in a conversation, 15 or signifies the "process
by which meanings or thoughts are shared between individuals through a common
system of symbols (as language signs or gestures)" 16 These definitions are broad
enough to include verbal or non-verbal, written or expressive communications of
"meanings or thoughts" which are likely to include the emotionally-charged exchange, on
February 22, 1988, between petitioner and private respondent, in the privacy of the
latter's office. Any doubts about the legislative body's meaning of the phrase "private
communication" are, furthermore, put to rest by the fact that the terms "conversation" and
"communication" were interchangeably used by Senator Tañada in his Explanatory Note
to the bill quoted below:
It has been said that innocent people have nothing to fear from
their conversations being overheard. But this statement ignores the usual
nature of conversations as well the undeniable fact that most, if not all,
civilized people have some aspects of their lives they do not wish to
expose. Free conversations are often characterized by exaggerations,
obscenity, agreeable falsehoods, and the expression of anti-social
desires of views not intended to be taken seriously. The right to
the privacy of communication, among others, has expressly been
assured by our Constitution. Needless to state here, the framers of our
Constitution must have recognized the nature of conversations between
individuals and the significance of man's spiritual nature, of his feelings
and of his intellect. They must have known that part of the pleasures and
satisfactions of life are to be found in the unaudited, and free exchange
of communication between individuals — free from every unjustifiable
intrusion by whatever means.17
In Gaanan vs. Intermediate Appellate Court, 18 a case which dealt with the issue of
telephone wiretapping, we held that the use of a telephone extension for the purpose of
overhearing a private conversation without authorization did not violate R.A. 4200
because a telephone extension devise was neither among those "device(s) or
arrangement(s)" enumerated therein, 19 following the principle that "penal statutes must
be construed strictly in favor of the accused." 20 The instant case turns on a different note,
because the applicable facts and circumstances pointing to a violation of R.A. 4200
suffer from no ambiguity, and the statute itself explicitly mentions the unauthorized
"recording" of private communications with the use of tape-recorders as among the acts
punishable.
WHEREFORE, because the law, as applied to the case at bench is clear and
unambiguous and leaves us with no discretion, the instant petition is hereby DENIED.
The decision appealed from is AFFIRMED. Costs against petitioner.
SO ORDERED.
G.R. No. 74930 February 13, 1989 Hon. Feliciano Belmonte
GSIS General Manager
RICARDO VALMONTE, OSWALDO CARBONELL, DOY DEL CASTILLO, ROLANDO Arroceros, Manila
BARTOLOME, LEO OBLIGAR, JUN GUTIERREZ, REYNALDO BAGATSING, JUN
"NINOY" ALBA, PERCY LAPID, ROMMEL CORRO and ROLANDO Sir:
FADUL, petitioners,
vs. As a lawyer, member of the media and plain citizen of our Republic, I am
FELICIANO BELMONTE, JR., respondent. requesting that I be furnished with the list of names of the opposition
members of (the) Batasang Pambansa who were able to secure a clean
Ricardo C. Valmonte for and in his own behalf and his co-petitioners. loan of P2 million each on guarranty (sic) of Mrs. Imelda Marcos. We
understand that OIC Mel Lopez of Manila was one of those aforesaid
The Solicitor General for respondent. MPs. Likewise, may we be furnished with the certified true copies of the
documents evidencing their loan. Expenses in connection herewith shall
be borne by us.

CORTES, J.:
Petitioners in this special civil action for mandamus with preliminary injunction invoke
their right to information and pray that respondent be directed:
If we could not secure the above documents could we have access to
them?
We are premising the above request on the following provision of the
Freedom Constitution of the present regime.

The right of the people to information on matters of public

concern shall be recognized. Access to official records,
(a) to furnish petitioners the list of the names of the
and to documents and papers pertaining to official acts,
Batasang Pambansa members belonging to the UNIDO
transactions or decisions, shall be afforded the citizen
and PDP-Laban who were able to secure clean loans
subject to such limitation as may be provided by law. (Art.
immediately before the February 7 election thru the
IV, Sec. 6).
intercession/marginal note of the then First Lady Imelda
Marcos; and/or
We trust that within five (5) days from receipt hereof we will receive your
favorable response on the matter.
(b) to furnish petitioners with certified true copies of the
documents evidencing their respective loans; and/or

(c) to allow petitioners access to the public records for the

subject information. (Petition, pp. 4-5; paragraphing
supplied.]

The controversy arose when petitioner Valmonte wrote respondent Belmonte the
following letter:

June 4, 1986
 requesting ar list of the opposition members of Batasang Pambansa who
were able tos secure a clean loan of P2 million each on guaranty of Mrs.
Imelda Marcos.
,

( My opinion in this regard is that a confidential relationship exists between

S the GSIS and all those who borrow from it, whoever they may be; that the
g GSIS has a duty to its customers to preserve this confidentiality; and that
d it would not be proper for the GSIS to breach this confidentiality unless so
. ordered by the courts.
)
R As a violation of this confidentiality may mar the image of the GSIS as a
I reputable financial institution, I regret very much that at this time we
C cannot respond positively to your request.
A
R Very truly yours,
D
O
(Sgd.) MEYNARDO A. TIRO
C
Deputy General Counsel
.
[Rollo, p. 40.]
V
A
On June 20,L1986, apparently not having yet received the reply of the Government
Service andMInsurance System (GSIS) Deputy General Counsel, petitioner Valmonte
wrote respondent
O another letter, saying that for failure to receive a reply, "(W)e are now
considering Nourselves free to do whatever action necessary within the premises to
pursue our desired
T objective in pursuance of public interest." [Rollo, p. 8.]
E
On June 26, 1986, Valmonte, joined by the other petitioners, filed the instant suit.
[Rollo, p. 7.]
On July 19, 1986, the Daily Express carried a news item reporting that 137 former
To the aforesaid letter, the Deputy General Counsel of the GSIS replied: members of the defunct interim and regular Batasang Pambansa, including ten (10)
opposition members, were granted housing loans by the GSIS [Rollo, p. 41.]
June 17, 1986
Separate comments were filed by respondent Belmonte and the Solicitor General. After
petitioners filed a consolidated reply, the petition was given due course and the parties
Atty. Ricardo C. Valmonte
were required to file their memoranda. The parties having complied, the case was
108 E. Benin Street
deemed submitted for decision.
Caloocan City
In his comment respondent raises procedural objections to the issuance of a writ of
Dear Compañero:
mandamus, among which is that petitioners have failed to exhaust administrative
remedies.
Possibly because he must have thought that it contained serious legal
implications, President & General Manager Feliciano Belmonte, Jr.
Respondent claims that actions of the GSIS General Manager are reviewable by the
referred to me for study and reply your letter to him of June 4, 1986
Board of Trustees of the GSIS. Petitioners, however, did not seek relief from the GSIS
Board of Trustees. It is therefore asserted that since administrative remedies were not
exhausted, then petitioners have no cause of action.
To this objection, petitioners claim that they have raised a purely legal
issue, viz., whether or not they are entitled to the documents sought, by virtue of their
constitutional right to information. Hence, it is argued that this case falls under one of the
exceptions to the principle of exhaustion of administrative remedies.
Among the settled principles in administrative law is that before a party can be allowed to
resort to the courts, he is expected to have exhausted all means of administrative
redress available under the law. The courts for reasons of law, comity and convenience
will not entertain a case unless the available administrative remedies have been resorted
to and the appropriate authorities have been given opportunity to act and correct the
errors committed in the administrative forum. However, the principle of exhaustion of
administrative remedies is subject to settled exceptions, among which is when only a
question of law is involved [Pascual v. Provincial Board, 106 Phil. 466 (1959); Aguilar v.
Valencia, et al., G.R. No. L-30396, July 30, 1971, 40 SCRA 210; Malabanan v. Ramento,
G.R. No. L-2270, May 21, 1984, 129 SCRA 359.] The issue raised by petitioners, which
requires the interpretation of the scope of the constitutional right to information, is one
which can be passed upon by the regular courts more competently than the GSIS or its
Board of Trustees, involving as it does a purely legal question. Thus, the exception of
this case from the application of the general rule on exhaustion of administrative
remedies is warranted. Having disposed of this procedural issue, We now address
ourselves to the issue of whether or not mandamus hes to compel respondent to perform
the acts sought by petitioners to be done, in pursuance of their right to information.
We shall deal first with the second and third alternative acts sought to be done, both of
which involve the issue of whether or not petitioners are entitled to access to the
documents evidencing loans granted by the GSIS.
This is not the first time that the Court is confronted with a controversy directly involving
the constitutional right to information. In Tañada v. Tuvera, G.R. No. 63915, April
24,1985, 136 SCRA 27 and in the recent case of Legaspi v. Civil Service
Commission, G.R. No. 72119, May 29, 1987,150 SCRA 530, the Court upheld the
people's constitutional right to be informed of matters of public interest and ordered the
government agencies concerned to act as prayed for by the petitioners.
The pertinent provision under the 1987 Constitution is Art. 111, Sec. 7 which states:
The right of the people to information on matters of public concern shall
be recognized. Access to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis for policy development, shall be
afforded the citizen, subject to such limitations as may be provided by
law.
The right of access to information was also recognized in the 1973 Constitution, Art. IV
Sec. 6 of which provided:
The right of the people to information on 'matters of public concern shall
be recognized. Access to official records, and to documents and papers
pertaining to official acts, transactions, or decisions, shall be afforded the
citizen subject to such limitations as may be provided by law.
An informed citizenry with access to the diverse currents in political, moral and artistic
thought and data relative to them, and the free exchange of ideas and discussion of
issues thereon, is vital to the democratic government envisioned under our Constitution.
The cornerstone of this republican system of government is delegation of power by the
people to the State. In this system, governmental agencies and institutions operate within
the limits of the authority conferred by the people. Denied access to information on the
inner workings of government, the citizenry can become prey to the whims and caprices
of those to whom the power had been delegated. The postulate of public office as a
public trust, institutionalized in the Constitution (in Art. XI, Sec. 1) to protect the people
from abuse of governmental power, would certainly be were empty words if access to
such information of public concern is denied, except under limitations prescribed by
implementing legislation adopted pursuant to the Constitution.
Petitioners are practitioners in media. As such, they have both the right to gather and the
obligation to check the accuracy of information the disseminate. For them, the freedom of
the press and of speech is not only critical, but vital to the exercise of their professions.
The right of access to information ensures that these freedoms are not rendered
nugatory by the government's monopolizing pertinent information. For an essential
element of these freedoms is to keep open a continuing dialogue or process of
communication between the government and the people. It is in the interest of the State
that the channels for free political discussion be maintained to the end that the
government may perceive and be responsive to the people's will. Yet, this open dialogue
can be effective only to the extent that the citizenry is informed and thus able to
formulate its will intelligently. Only when the participants in the discussion are aware of
the issues and have access to information relating thereto can such bear fruit.
The right to information is an essential premise of a meaningful right to speech and
expression. But this is not to say that the right to information is merely an adjunct of and
therefore restricted in application by the exercise of the freedoms of speech and of the
press. Far from it. The right to information goes hand-in-hand with the constitutional
policies of full public disclosure * and honesty in the public service. ** It is meant to enhance the widening role of
the citizenry in governmental decision-making as well as in checking abuse in government.
Yet, like all the constitutional guarantees, the right to information is not absolute. As
stated in Legaspi, the people's right to information is limited to "matters of public
concern," and is further "subject to such limitations as may be provided by law." Similarly,
the State's policy of full disclosure is limited to "transactions involving public interest,"
and is "subject to reasonable conditions prescribed by law."
Hence, before mandamus may issue, it must be clear that the information sought is of
"public interest" or "public concern," and is not exempted by law from the operation of the
constitutional guarantee [Legazpi v. Civil Service Commission, supra, at p. 542.]
The Court has always grappled with the meanings of the terms "public interest" and
"public concern". As observed in Legazpi:
In determining whether or not a particular information is of public concern
there is no rigid test which can be applied. "Public concern" like "public
interest" is a term that eludes exact definition. Both terms embrace a
broad spectrum of subjects which the public may want to know, either
because these directly affect their lives, or simply because such matters
naturally arouse the interest of an ordinary citezen. In the final analysis, it
is for the courts to determine on a case by case basis whether the matter
at issue is of interest or importance, as it relates to or affects the public.
[Ibid. at p. 541]
In the Tañada case the public concern deemed covered by the constitutional right to
information was the need for adequate notice to the public of the various laws which are
to regulate the actions and conduct of citezens. In Legaspi, it was the "legitimate concern
of citezensof ensure that government positions requiring civil service eligibility are
occupied only by persons who are eligibles" [Supra at p. 539.]
The information sought by petitioners in this case is the truth of reports that certain
Members of the Batasang Pambansa belonging to the opposition were able to secure
"clean" loans from the GSIS immediately before the February 7, 1986 election through
the intercession of th eformer First Lady, Mrs. Imelda Marcos.
The GSIS is a trustee of contributions from the government and its employees and the
administrator of various insurance programs for the benefit of the latter. Undeniably, its
funds assume a public character. More particularly, Secs. 5(b) and 46 of P.D. 1146, as
amended (the Revised Government Service Insurance Act of 1977), provide for annual
appropriations to pay the contributions, premiums, interest and other amounts payable to
GSIS by the government, as employer, as well as the obligations which the Republic of
the Philippines assumes or guarantees to pay. Considering the nature of its funds, the
GSIS is expected to manage its resources with utmost prudence and in strict compliance
with the pertinent laws or rules and regulations. Thus, one of the reasons that prompted
the revision of the old GSIS law (C.A. No. 186, as amended) was the necessity "to
preserve at all times the actuarial solvency of the funds administered by the System"
[Second Whereas Clause, P.D. No. 1146.] Consequently, as respondent himself admits,
the GSIS "is not supposed to grant 'clean loans.'" [Comment, p. 8.] It is therefore the
legitimate concern of the public to ensure that these funds are managed properly with the
end in view of maximizing the benefits that accrue to the insured government employees.
Moreover, the supposed borrowers were Members of the defunct Batasang Pambansa
who themselves appropriated funds for the GSIS and were therefore expected to be the
first to see to it that the GSIS performed its tasks with the greatest degree of fidelity and
that an its transactions were above board.
In sum, the public nature of the loanable funds of the GSIS and the public office held by
the alleged borrowers make the information sought clearly a matter of public interest and
concern.
A second requisite must be met before the right to information may be enforced through
mandamus proceedings, viz., that the information sought must not be among those
excluded by law.
Respondent maintains that a confidential relationship exists between the GSIS and its
borrowers. It is argued that a policy of confidentiality restricts the indiscriminate
dissemination of information.
Yet, respondent has failed to cite any law granting the GSIS the privilege of
confidentiality as regards the documents subject of this petition. His position is
apparently based merely on considerations of policy. The judiciary does not settle policy
issues. The Court can only declare what the law is, and not what the law should be.
Under our system of government, policy issues are within the domain of the political
branches of the government, and of the people themselves as the repository of all State
power.
Respondent however contends that in view of the right to privacy which is equally
protected by the Constitution and by existing laws, the documents evidencing loan
transactions of the GSIS must be deemed outside the ambit of the right to information.
There can be no doubt that right to privacy is constitutionally protected. In the landmark
case of Morfe v. Mutuc [130 Phil. 415 (1968), 22 SCRA 424], this Court, speaking
through then Mr. Justice Fernando, stated:
... The right to privacy as such is accorded recognition independently of
its identification with liberty; in itself, it is fully deserving of constitutional
protection. The language of Prof. Emerson is particularly apt: "The
concept of limited government has always included the idea that
 governmental powers stop short of certain intrusions into the personal life information on matters of public concern which guarantees "(a)ccess to official records,
of the citizen. This is indeed one of the basic distinctions between and to documents, and papers pertaining to official acts, transactions, or decisions" only.
absolute and limited government. UItimate and pervasive control of the
individual, in all aspects of his life, is the hallmark of the absolute. state, It is argued that the records of the GSIS, a government corporation performing
In contrast, a system of limited government safeguards a private sector, proprietary functions, are outside the coverage of the people's right of access
which belongs to the individual, firmly distinguishing it from the public to official records.
sector, which the state can control. Protection of this private sector —
protection, in other words, of the dignity and integrity of the individual — It is further contended that since the loan function of the GSIS is merely incidental to its
has become increasingly important as modem society has developed. All insurance function, then its loan transactions are not covered by the constitutional policy
the forces of technological age — industrialization, urbanization, and of full public disclosure and the right to information which is applicable only to "official"
organization — operate to narrow the area of privacy and facilitate transactions.
intrusion into it. In modern terms, the capacity to maintain and support
this enclave of private life marks the difference between a democratic
First of all, the "constituent — ministrant" dichotomy characterizing government function
and a totalitarian society." [at pp. 444-445.]
has long been repudiated. In ACCFA v. Confederation of Unions and Government
Corporations and Offices (G.R. Nos. L-21484 and L-23605, November 29, 1969, 30
When the information requested from the government intrudes into the privacy of a SCRA 6441, the Court said that the government, whether carrying out its sovereign
citizen, a potential conflict between the rights to information and to privacy may arise. attributes or running some business, discharges the same function of service to the
However, the competing interests of these rights need not be resolved in this case. people.
Apparent from the above-quoted statement of the Court in Morfe is that the right to
privacy belongs to the individual in his private capacity, and not to public and
Consequently, that the GSIS, in granting the loans, was exercising a proprietary function
governmental agencies like the GSIS. Moreover, the right cannot be invoked by juridical
would not justify the exclusion of the transactions from the coverage and scope of the
entities like the GSIS. As held in the case of Vassar College v. Loose Wills Biscuit
right to information.
Co. [197 F. 982 (1912)], a corporation has no right of privacy in its name since the entire
basis of the right to privacy is an injury to the feelings and sensibilities of the party and a
corporation would have no such ground for relief. Moreover, the intent of the members of the Constitutional Commission of 1986, to
include government-owned and controlled corporations and transactions entered into by
them within the coverage of the State policy of fun public disclosure is manifest from the
Neither can the GSIS through its General Manager, the respondent, invoke the right to
records of the proceedings:
privacy of its borrowers. The right is purely personal in nature [Cf. Atkinson v. John
Doherty & Co., 121 Mich 372, 80 N.W. 285, 46 L.RA. 219 (1899); Schuyler v. Curtis, 147
N.Y. 434, 42 N.E. 22, 31 L.R.A. 286 (1895)), and hence may be invoked only by the xxx xxx xxx
person whose privacy is claimed to be violated.
THE PRESIDING OFFICER (Mr. Colayco).
It may be observed, however, that in the instant case, the concerned borrowers
themselves may not succeed if they choose to invoke their right to privacy, considering Commissioner Suarez is recognized.
the public offices they were holding at the time the loans were alleged to have been
granted. It cannot be denied that because of the interest they generate and their MR. SUAREZ. Thank you. May I ask the Gentleman a few question?
newsworthiness, public figures, most especially those holding responsible positions in
government, enjoy a more limited right to privacy as compared to ordinary individuals, MR. OPLE. Very gladly.
their actions being subject to closer public scrutiny [Cf. Ayer Productions Pty. Ltd. v.
Capulong, G.R. Nos. 82380 and 82398, April 29, 1988; See also Cohen v. Marx, 211 P. MR. SUAREZ. Thank you.
2d 321 (1949).]
When we declare a "policy of full public disclosure of all
Respondent next asserts that the documents evidencing the loan transactions of the its transactions" — referring to the transactions of the
GSIS are private in nature and hence, are not covered by the Constitutional right to
 State — and when we say the "State" which I suppose In fine, petitioners are entitled to access to the documents evidencing loans granted by
would include all of the various agencies, departments, the GSIS, subject to reasonable regulations that the latter may promulgate relating to the
ministries and instrumentalities of the government.... manner and hours of examination, to the end that damage to or loss of the records may
be avoided, that undue interference with the duties of the custodian of the records may
MR. OPLE. Yes, and individual public officers, Mr. Presiding Officer. be prevented and that the right of other persons entitled to inspect the records may be
insured [Legaspi v. Civil Service Commission, supra at p. 538, quoting Subido v. Ozaeta,
MR. SUAREZ. Including government-owned and controlled corporations. 80 Phil. 383, 387.] The petition, as to the second and third alternative acts sought to be
done by petitioners, is meritorious.
MR. OPLE. That is correct, Mr. Presiding Officer.
However, the same cannot be said with regard to the first act sought by petitioners, i.e.,
"to furnish petitioners the list of the names of the Batasang Pambansa members
MR. SUAREZ. And when we say
belonging to the UNIDO and PDP-Laban who were able to secure clean loans
"transactions" which should be
immediately before the February 7 election thru the intercession/marginal note of the
distinguished from contracts, agreements,
then First Lady Imelda Marcos."
or treaties or whatever, does the
Gentleman refer to the steps leading to
the consummation of the contract, or does Although citizens are afforded the right to information and, pursuant thereto, are entitled
he refer to the contract itself? to "access to official records," the Constitution does not accord them a right to compel
custodians of official records to prepare lists, abstracts, summaries and the like in their
desire to acquire information on matters of public concern.
MR. OPLE. The "transactions" used here I
suppose is generic and, therefore, it can
cover both steps leading to a contract, and It must be stressed that it is essential for a writ of mandamus to issue that the applicant
already a consummated contract, Mr. has a well-defined, clear and certain legal right to the thing demanded and that it is the
Presiding Officer. imperative duty of defendant to perform the act required. The corresponding duty of the
respondent to perform the required act must be clear and specific [Lemi v. Valencia, G.R.
No. L-20768, November 29,1968,126 SCRA 203; Ocampo v. Subido, G.R. No. L-28344,
MR. SUAREZ. This contemplates
August 27, 1976, 72 SCRA 443.] The request of the petitioners fails to meet this
inclusion of negotiations leading to the
standard, there being no duty on the part of respondent to prepare the list requested.
consummation of the transaction.
WHEREFORE, the instant petition is hereby granted and respondent General Manager
MR. OPLE. Yes, subject only to
of the Government Service Insurance System is ORDERED to allow petitioners access
reasonable safeguards on the national
to documents and records evidencing loans granted to Members of the former Batasang
interest.
Pambansa, as petitioners may specify, subject to reasonable regulations as to the time
and manner of inspection, not incompatible with this decision, as the GSIS may deem
MR. SUAREZ. Thank you. [V Record of necessary.
the Constitutional Commission 24-25.]
(Emphasis supplied.)
SO ORDERED.
Considering the intent of the framers of the Constitution which, though not binding upon
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco,
the Court, are nevertheless persuasive, and considering further that government-owned
Padilla, Bidin, Sarmiento, Griño-Aquino, Medialdea and Regalado, JJ., concur.
and controlled corporations, whether performing proprietary or governmental functions
are accountable to the people, the Court is convinced that transactions entered into by
the GSIS, a government-controlled corporation created by special legislation are within
the ambit of the people's right to be informed pursuant to the constitutional policy of
transparency in government dealings.
Separate Opinions
CRUZ, J., concurring:
Instead of merely affixing my signature to signify my concurrence, I write this separate
opinion simply to say I have nothing to add to Justice Irene R. Cortes' exceptionally
eloquent celebration of the right to information on matters of public concern.
Separate Opinions
CRUZ, J., concurring:
Instead of merely affixing my signature to signify my concurrence, I write this separate
opinion simply to say I have nothing to add to Justice Irene R. Cortes' exceptionally
eloquent celebration of the right to information on matters of public concern.
G.R. No. 160792 August 25, 2005
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF CAPT. GARY
ALEJANO, PN (MARINES) CAPT. NICANOR FAELDON, PN (MARINES) CAPT.
GERARDO GAMBALA, PA LT. SG JAMES LAYUG, PN CAPT. MILO
MAESTRECAMPO, PA LT. SG ANTONIO TRILLANES IV, PN HOMOBONO ADAZA,
and ROBERTO RAFAEL (ROEL) PULIDO, Petitioners,
vs.
GEN. PEDRO CABUAY, GEN. NARCISO ABAYA, SEC. ANGELO REYES, and SEC.
ROILO GOLEZ, Respondents.
DECISION
CARPIO, J.:
The Case
This petition for review1 seeks to nullify the Decision2 of the Court of Appeals dated 17
September 2003 and Resolution dated 13 November 2003 in CA-G.R. SP No. 78545.
The Court of Appeals’ Decision and Resolution dismissed the petition for habeas
corpus filed by lawyers Homobono Adaza and Roberto Rafael Pulido ("petitioners") on
behalf of their detained clients Capt. Gary Alejano (PN-Marines), Capt. Nicanor Faeldon
(PN-Marines), Capt. Gerardo Gambala (PA), Lt. SG James Layug (PN), Capt. Milo
Maestrecampo (PA), and Lt. SG Antonio Trillanes IV (PN) ("detainees").
Petitioners named as respondent Gen. Pedro Cabuay ("Gen. Cabuay"), Chief of the
Intelligence Service of the Armed Forces of the Philippines ("ISAFP"), who has custody
of the detainees. Petitioners impleaded Gen. Narciso Abaya ("Gen. Abaya"), Sec. Angelo
Reyes and Roilo Golez, who are respectively the Chief of Staff of the Armed Forces of
the Philippines ("AFP"), Secretary of National Defense and National Security Adviser,
because they have command responsibility over Gen. Cabuay.
Antecedent Facts
Early morning of 27 July 2003, some 321 armed soldiers, led by the now detained junior
officers, entered and took control of the Oakwood Premier Luxury Apartments
("Oakwood"), an upscale apartment complex, located in the business district of Makati
City. The soldiers disarmed the security officers of Oakwood and planted explosive
devices in its immediate surroundings. The junior officers publicly renounced their
support for the administration and called for the resignation of President Gloria
Macapagal-Arroyo and several cabinet members.
Around 7:00 p.m. of the same date, the soldiers voluntarily surrendered to the authorities
after several negotiations with government emissaries. The soldiers later defused the
explosive devices they had earlier planted. The soldiers then returned to their barracks.
On 31 July 2003, Gen. Abaya, as the Chief of Staff of the AFP, issued a directive to all
the Major Service Commanders to turn over custody of ten junior officers to the ISAFP
Detention Center. The transfer took place while military and civilian authorities were
investigating the soldiers’ involvement in the Oakwood incident.
On 1 August 2003, government prosecutors filed an Information for coup d’etat with the
Regional Trial Court of Makati City, Branch 61, against the soldiers involved in the 27
July 2003 Oakwood incident. The government prosecutors accused the soldiers of coup
d’etat as defined and penalized under Article 134-A of the Revised Penal Code of the
Philippines, as amended. The case was docketed as Criminal Case No. 03-2784. The
trial court later issued the Commitment Orders giving custody of junior officers Lt. SG
Antonio Trillanes IV ("Trillanes") and Capt. Gerardo Gambala to the Commanding
Officers of ISAFP.
On 2 August 2003, Gen. Abaya issued a directive to all Major Service Commanders to
take into custody the military personnel under their command who took part in the
Oakwood incident except the detained junior officers who were to remain under the
custody of ISAFP.
On 11 August 2003, petitioners filed a petition for habeas corpus with the Supreme
Court. On 12 August 2003, the Court issued a Resolution, which resolved to:
(a) ISSUE the WRIT OF HABEAS CORPUS; (b) require respondents to make
a RETURN of the writ on Monday, 18 August 2003, at 10:00 a.m. before the Court of
Appeals; (c) refer the case to the Court of Appeals for RAFFLE among the Justices
thereof for hearing, further proceedings and decision thereon, after which
a REPORT shall be made to this Court within ten (10) days from promulgation of the
decision.3
Thus, the Court issued a Writ of Habeas Corpus dated 12 August 2003 directing
respondents to make a return of the writ and to appear and produce the persons of the
detainees before the Court of Appeals on the scheduled date for hearing and further
proceedings.
On the same date, the detainees and their other co-accused filed with the Regional Trial
Court of Makati City a Motion for Preliminary Investigation, which the trial court granted.
On 18 August 2003, pursuant to the directives of the Court, respondents submitted their
Return of the Writ and Answer to the petition and produced the detainees before the
Court of Appeals during the scheduled hearing. After the parties filed their memoranda
on 28 August 2003, the appellate court considered the petition submitted for decision.
On 17 September 2003, the Court of Appeals rendered its decision dismissing the
petition. Nonetheless, the appellate court ordered Gen. Cabuay, who was in charge of
implementing the regulations in the ISAFP Detention Center, to uphold faithfully the
rights of the detainees in accordance with Standing Operations Procedure No. 0263-04.
The appellate court directed Gen. Cabuay to adhere to his commitment made in court
regarding visiting hours and the detainees’ right to exercise for two hours a day.
The Ruling of the Court of Appeals
The Court of Appeals found the petition bereft of merit. The appellate court pointed out
that the detainees are already charged of coup d’etat before the Regional Trial Court of
Makati. Habeas corpus is unavailing in this case as the detainees’ confinement is under
a valid indictment, the legality of which the detainees and petitioners do not even
question.
The Court of Appeals recognized that habeas corpus may also be the appropriate
remedy to assail the legality of detention if there is a deprivation of a constitutional right.
However, the appellate court held that the constitutional rights alleged to have been
violated in this case do not directly affect the detainees’ liberty. The appellate court ruled
that the regulation of the detainees’ right to confer with their counsels is reasonable
under the circumstances.
The appellate court declared that while the opening and reading of Trillanes’ letter is an
abhorrent violation of his right to privacy of communication, this does not justify the
issuance of a writ of habeas corpus. The violation does not amount to illegal restraint,
which is the proper subject of habeas corpus proceedings.
The Court of Appeals thus dismissed the petition and ordered Gen. Cabuay to fulfill the
promise he made in open court to uphold the visiting hours and the right of the detainees
to exercise for two hours a day. The dispositive portion of the appellate court’s decision
reads:
WHEREFORE, the foregoing considered, the instant petition is hereby DISMISSED.
Respondent Cabuay is hereby ORDERED to faithfully adhere to his commitment to
uphold the constitutional rights of the detainees in accordance with the Standing
Operations Procedure No. 0263-04 regarding visiting hours and the right of the detainees
to exercise for two (2) hours a day.
SO ORDERED.4
 The Issues
Petitioners raise the following issues for resolution:
A. THE COURT OF APPEALS ERRED IN REVIEWING AND REVERSING A DECISION
OF THE SUPREME COURT;
B. THE COURT OF APPEALS ERRED IN NOT ACKNOWLEDGING THE
APPROPRIATENESS OF THE REMEDY PETITIONERS SEEK; and
C. THE COURT OF APPEALS ERRED IN ASSERTING THE LEGALITY OF THE
CONDITIONS OF THE DETAINED JUNIOR OFFICERS’ DETENTION.5
The Ruling of the Court
The petition lacks merit.
Petitioners claim that the Court’s 12 August 2003 Order granted the petition and the
Court remanded the case to the Court of Appeals only for a factual hearing. Petitioners
thus argue that the Court’s Order had already foreclosed any question on the propriety
and merits of their petition.
Petitioners’ claim is baseless. A plain reading of the 12 August 2003 Order shows that
the Court referred to the Court of Appeals the duty to inquire into the cause of the junior
officers’ detention. Had the Court ruled for the detainees’ release, the Court would not
have referred the hearing of the petition to the Court of Appeals. The Court would have
forthwith released the detainees had the Court upheld petitioners’ cause.
In a habeas corpus petition, the order to present an individual before the court is a
preliminary step in the hearing of the petition. 6 The respondent must produce the person
and explain the cause of his detention. 7 However, this order is not a ruling on the
propriety of the remedy or on the substantive matters covered by the remedy. Thus, the
Court’s order to the Court of Appeals to conduct a factual hearing was not an affirmation
of the propriety of the remedy of habeas corpus.
For obvious reasons, the duty to hear the petition for habeas corpus necessarily includes
the determination of the propriety of the remedy. If a court finds the alleged cause of the
detention unlawful, then it should issue the writ and release the detainees. In the present
case, after hearing the case, the Court of Appeals found that habeas corpus is
inapplicable. After actively participating in the hearing before the Court of Appeals,
petitioners are estopped from claiming that the appellate court had no jurisdiction to
inquire into the merits of their petition.
The Court of Appeals correctly ruled that the remedy of habeas corpus is not the proper
remedy to address the detainees’ complaint against the regulations and conditions in the
ISAFP Detention Center. The remedy of habeas corpus has one objective: to inquire into
the cause of detention of a person.8 The purpose of the writ is to determine whether a
person is being illegally deprived of his liberty. 9 If the inquiry reveals that the detention is
illegal, the court orders the release of the person. If, however, the detention is proven
lawful, then the habeas corpus proceedings terminate. The use of habeas corpus is thus
very limited. It is not a writ of error.10 Neither can it substitute for an appeal. 11
Nonetheless, case law has expanded the writ’s application to circumstances where there
is deprivation of a person’s constitutional rights. The writ is available where a person
continues to be unlawfully denied of one or more of his constitutional freedoms, where
there is denial of due process, where the restraints are not merely involuntary but are
also unnecessary, and where a deprivation of freedom originally valid has later become
arbitrary.12
However, a mere allegation of a violation of one’s constitutional right is not sufficient. The
courts will extend the scope of the writ only if any of the following circumstances is
present: (a) there is a deprivation of a constitutional right resulting in the unlawful
restraint of a person; (b) the court had no jurisdiction to impose the sentence; or (c) an
excessive penalty is imposed and such sentence is void as to the excess. 13 Whatever
situation the petitioner invokes, the threshold remains high. The violation of constitutional
right must be sufficient to void the entire proceedings.14
Petitioners admit that they do not question the legality of the detention of the detainees.
Neither do they dispute the lawful indictment of the detainees for criminal and military
offenses. What petitioners bewail is the regulation adopted by Gen. Cabuay in the ISAFP
Detention Center preventing petitioners as lawyers from seeing the detainees – their
clients – any time of the day or night. The regulation allegedly curtails the detainees’ right
to counsel and violates Republic Act No. 7438 ("RA 7438").15 Petitioners claim that the
regulated visits made it difficult for them to prepare for the important hearings before the
Senate and the Feliciano Commission.
Petitioners also point out that the officials of the ISAFP Detention Center violated the
detainees’ right to privacy of communication when the ISAFP officials opened and read
the personal letters of Trillanes and Capt. Milo Maestrecampo ("Maestrecampo").
Petitioners further claim that the ISAFP officials violated the detainees’ right against cruel
and unusual punishment when the ISAFP officials prevented the detainees from having
contact with their visitors. Moreover, the ISAFP officials boarded up with iron bars and
plywood slabs the iron grills of the detention cells, limiting the already poor light and
ventilation in the detainees’ cells.
Pre-trial detainees do not forfeit their constitutional rights upon confinement.16 However,
the fact that the detainees are confined makes their rights more limited than those of the
public.17 RA 7438, which specifies the rights of detainees and the duties of detention
officers, expressly recognizes the power of the detention officer to adopt and implement
reasonable measures to secure the safety of the detainee and prevent his escape.
Section 4(b) of RA 7438 provides:
Section 4. Penalty Clause. – a) x x x
b) Any person who obstructs, prevents or prohibits any lawyer, any member of the
immediate family of a person arrested, detained or under custodial investigation, or any
medical doctor or priest or religious minister or by his counsel, from visiting and
conferring privately chosen by him or by any member of his immediate family with him, or
from examining and treating him, or from ministering to his spiritual needs, at any hour
of the day or, in urgent cases, of the night shall suffer the penalty of imprisonment of
not less than four (4) years nor more than six (6) years, and a fine of four thousand
pesos (₱4,000.00).
The provisions of the above Section notwithstanding, any security officer with custodial
responsibility over any detainee or prisoner may undertake such reasonable measures
as may be necessary to secure his safety and prevent his escape. (Emphasis
supplied)
True, Section 4(b) of RA 7438 makes it an offense to prohibit a lawyer from visiting a
detainee client "at any hour of the day or, in urgent cases, of the night." However, the last
paragraph of the same Section 4(b) makes the express qualification that
"notwithstanding" the provisions of Section 4(b), the detention officer has the power to
undertake such reasonable measures as may be necessary to secure the safety of the
detainee and prevent his escape.
The last paragraph of Section 4(b) of RA 7438 prescribes a clear standard. The
regulations governing a detainee’s confinement must be "reasonable measures x x x to
secure his safety and prevent his escape." Thus, the regulations must be reasonably
connected to the government’s objective of securing the safety and preventing the
escape of the detainee. The law grants the detention officer the authority to "undertake
such reasonable measures" or regulations.
Petitioners contend that there was an actual prohibition of the detainees’ right to effective
representation when petitioners’ visits were limited by the schedule of visiting hours.
Petitioners assert that the violation of the detainees’ rights entitle them to be released
from detention.
Petitioners’ contention does not persuade us. The schedule of visiting hours does not
render void the detainees’ indictment for criminal and military offenses to warrant the
detainees’ release from detention. The ISAFP officials did not deny, but merely
regulated, the detainees’ right to counsel. The purpose of the regulation is not to render
ineffective the right to counsel, but to secure the safety and security of all detainees.
American cases are instructive on the standards to determine whether regulations on
pre-trial confinement are permissible.
In Bell v. Wolfish,18 the United States (U.S.) Supreme Court held that regulations must
be reasonably related to maintaining security and must not be excessive in achieving
that purpose. Courts will strike down a restriction that is arbitrary and
purposeless.19 However, Bell v. Wolfish expressly discouraged courts from skeptically
questioning challenged restrictions in detention and prison facilities. 20 The U.S. Supreme
Court commanded the courts to afford administrators "wide-ranging deference" in
implementing policies to maintain institutional security. 21
In our jurisdiction, the last paragraph of Section 4(b) of RA 7438 provides the standard to
make regulations in detention centers allowable: "such reasonable measures as may
be necessary to secure the detainee’s safety and prevent his escape." In the
present case, the visiting hours accorded to the lawyers of the detainees are reasonably
connected to the legitimate purpose of securing the safety and preventing the escape of
all detainees.
While petitioners may not visit the detainees any time they want, the fact that the
detainees still have face-to-face meetings with their lawyers on a daily basis clearly
shows that there is no impairment of detainees’ right to counsel. Petitioners as counsels
could visit their clients between 8:00 a.m. and 5:00 p.m. with a lunch break at 12:00 p.m.
The visiting hours are regular business hours, the same hours when lawyers normally
entertain clients in their law offices. Clearly, the visiting hours pass the standard of
reasonableness. Moreover, in urgent cases, petitioners could always seek permission
from the ISAFP officials to confer with their clients beyond the visiting hours.
The scheduled visiting hours provide reasonable access to the detainees, giving
petitioners sufficient time to confer with the detainees. The detainees’ right to counsel is
not undermined by the scheduled visits. Even in the hearings before the Senate and the
Feliciano Commission,22 petitioners were given time to confer with the detainees, a fact
that petitioners themselves admit.23 Thus, at no point were the detainees denied their right
to counsel.
Petitioners further argue that the bars separating the detainees from their visitors and the
boarding of the iron grills in their cells with plywood amount to unusual and excessive
punishment. This argument fails to impress us. Bell v. Wolfish pointed out that while a
detainee may not be punished prior to an adjudication of guilt in accordance with due
process of law, detention inevitably interferes with a detainee’s desire to live
comfortably.24 The fact that the restrictions inherent in detention intrude into the
detainees’ desire to live comfortably does not convert those restrictions into
punishment.25 It is when the restrictions are arbitrary and purposeless that courts will infer
intent to punish.26 Courts will also infer intent to punish even if the restriction seems to be
related rationally to the alternative purpose if the restriction appears excessive in relation
to that purpose.27 Jail officials are thus not required to use the least restrictive security
measure.28 They must only refrain from implementing a restriction that appears excessive
to the purpose it serves.29
We quote Bell v. Wolfish:
One further point requires discussion. The petitioners assert, and respondents concede,
that the "essential objective of pretrial confinement is to insure the detainees’ presence
at trial." While this interest undoubtedly justifies the original decision to confine an
individual in some manner, we do not accept respondents’ argument that the
Government’s interest in ensuring a detainee’s presence at trial is the only objective that
may justify restraints and conditions once the decision is lawfully made to confine a
person. "If the government could confine or otherwise infringe the liberty of detainees
only to the extent necessary to ensure their presence at trial, house arrest would in the
end be the only constitutionally justified form of detention." The Government also has
legitimate interests that stem from its need to manage the facility in which the individual
is detained. These legitimate operational concerns may require administrative measures
that go beyond those that are, strictly speaking, necessary to ensure that the detainee
shows up at trial. For example, the Government must be able to take steps to maintain
security and order at the institution and make certain no weapons or illicit drugs reach
detainees. Restraints that are reasonably related to the institution’s interest in
maintaining jail security do not, without more, constitute unconstitutional punishment,
even if they are discomforting and are restrictions that the detainee would not have
experienced had he been released while awaiting trial. We need not here attempt to
detail the precise extent of the legitimate governmental interests that may justify
conditions or restrictions of pretrial detention. It is enough simply to recognize that in
addition to ensuring the detainees’ presence at trial, the effective management of the
detention facility once the individual is confined is a valid objective that may justify
imposition of conditions and restrictions of pretrial detention and dispel any inference that
such restrictions are intended as punishment. 30
An action constitutes a punishment when (1) that action causes the inmate to suffer
some harm or "disability," and (2) the purpose of the action is to punish the
inmate.31 Punishment also requires that the harm or disability be significantly greater than,
or be independent of, the inherent discomforts of confinement. 32
Block v. Rutherford,33 which reiterated Bell v. Wolfish, upheld the blanket restriction on
contact visits as this practice was reasonably related to maintaining security. The safety
of innocent individuals will be jeopardized if they are exposed to detainees who while not
yet convicted are awaiting trial for serious, violent offenses and may have prior criminal
conviction.34 Contact visits make it possible for the detainees to hold visitors and jail staff
hostage to effect escapes.35 Contact visits also leave the jail vulnerable to visitors
smuggling in weapons, drugs, and other contraband. 36 The restriction on contact visits
was imposed even on low-risk detainees as they could also potentially be enlisted to help
obtain contraband and weapons.37 The security consideration in the imposition of blanket
restriction on contact visits was ruled to outweigh the sentiments of the detainees.38
Block v. Rutherford held that the prohibition of contact visits bore a rational connection
to the legitimate goal of internal security. 39 This case reaffirmed the "hands-off" doctrine
enunciated in Bell v. Wolfish, a form of judicial self-restraint, based on the premise that
courts should decline jurisdiction over prison matters in deference to administrative
expertise.40
In the present case, we cannot infer punishment from the separation of the detainees
from their visitors by iron bars, which is merely a limitation on contact visits. The iron bars
separating the detainees from their visitors prevent direct physical contact but still allow
the detainees to have visual, verbal, non-verbal and limited physical contact with their
visitors. The arrangement is not unduly restrictive. In fact, it is not even a strict non-
contact visitation regulation like in Block v. Rutherford. The limitation on the detainees’
physical contacts with visitors is a reasonable, non-punitive response to valid security
concerns.
The boarding of the iron grills is for the furtherance of security within the ISAFP
Detention Center. This measure intends to fortify the individual cells and to prevent the
detainees from passing on contraband and weapons from one cell to another. The
boarded grills ensure security and prevent disorder and crime within the facility. The
diminished illumination and ventilation are but discomforts inherent in the fact of
detention, and do not constitute punishments on the detainees.
We accord respect to the finding of the Court of Appeals that the conditions in the ISAFP
Detention Center are not inhuman, degrading and cruel. Each detainee, except for Capt.
Nicanor Faeldon and Capt. Gerardo Gambala, is confined in separate cells, unlike
ordinary cramped detention cells. The detainees are treated well and given regular
meals. The Court of Appeals noted that the cells are relatively clean and livable
compared to the conditions now prevailing in the city and provincial jails, which are
congested with detainees. The Court of Appeals found the assailed measures to be
reasonable considering that the ISAFP Detention Center is a high-risk detention facility.
Apart from the soldiers, a suspected New People’s Army ("NPA") member and two
suspected Abu Sayyaf members are detained in the ISAFP Detention Center.
We now pass upon petitioners’ argument that the officials of the ISAFP Detention Center
violated the detainees’ right to privacy when the ISAFP officials opened and read the
letters handed by detainees Trillanes and Maestrecampo to one of the petitioners for
mailing. Petitioners point out that the letters were not in a sealed envelope but simply
folded because there were no envelopes in the ISAFP Detention Center. Petitioners
contend that the Constitution prohibits the infringement of a citizen’s privacy rights unless
authorized by law. The Solicitor General does not deny that the ISAFP officials opened
the letters.
Courts in the U.S. have generally permitted prison officials to open and read all incoming
and outgoing mail of convicted prisoners to prevent the smuggling of contraband into the
prison facility and to avert coordinated escapes. 41 Even in the absence of statutes
specifically allowing prison authorities from opening and inspecting mail, such practice
was upheld based on the principle of "civil deaths."42 Inmates were deemed to have no
right to correspond confidentially with anyone. The only restriction placed upon prison
authorities was that the right of inspection should not be used to delay unreasonably the
communications between the inmate and his lawyer. 43
Eventually, the inmates’ outgoing mail to licensed attorneys, courts, and court officials
received respect.44 The confidential correspondences could not be censored. 45 The
infringement of such privileged communication was held to be a violation of the inmates’
First Amendment rights.46 A prisoner has a right to consult with his attorney in absolute
privacy, which right is not abrogated by the legitimate interests of prison authorities in the
administration of the institution.47 Moreover, the risk is small that attorneys will conspire in
plots that threaten prison security.48
American jurisprudence initially made a distinction between the privacy rights enjoyed by
convicted inmates and pre-trial detainees. The case of Palmigiano v.
Travisono49 recognized that pre-trial detainees, unlike convicted prisoners, enjoy a
limited right of privacy in communication. Censorship of pre-trial detainees’ mail
addressed to public officials, courts and counsel was held impermissible. While incoming
mail may be inspected for contraband and read in certain instances, outgoing mail of pre-
trial detainees could not be inspected or read at all.
In the subsequent case of Wolff v. McDonnell,50 involving convicted prisoners, the U.S.
Supreme Court held that prison officials could open in the presence of the inmates
incoming mail from attorneys to inmates. However, prison officials could not read such
mail from attorneys. Explained the U.S. Supreme Court:
The issue of the extent to which prison authorities can open and inspect incoming mail
from attorneys to inmates, has been considerably narrowed in the course of this
litigation. The prison regulation under challenge provided that ‘(a)ll incoming and
outgoing mail will be read and inspected,’ and no exception was made for attorney-
prisoner mail. x x x
Petitioners now concede that they cannot open and read mail from attorneys to inmates,
but contend that they may open all letters from attorneys as long as it is done in the
presence of the prisoners. The narrow issue thus presented is whether letters
determined or found to be from attorneys may be opened by prison authorities in the
presence of the inmate or whether such mail must be delivered unopened if normal
detection techniques fail to indicate contraband.
xxx
x x x If prison officials had to check in each case whether a communication was from an
attorney before opening it for inspection, a near impossible task of administration would
be imposed. We think it entirely appropriate that the State require any such
communications to be specially marked as originating from an attorney, with his name
and address being given, if they are to receive special treatment. It would also certainly
be permissible that prison authorities require that a lawyer desiring to correspond with a
prisoner, first identify himself and his client to the prison officials, to assure that the
letters marked privileged are actually from members of the bar. As to the ability to open
the mail in the presence of inmates, this could in no way constitute censorship, since the
mail would not be read. Neither could it chill such communications, since the inmate’s
presence insures that prison officials will not read the mail. The possibility that
contraband will be enclosed in letters, even those from apparent attorneys, surely
warrants prison officials’ opening the letters. We disagree with the Court of Appeals that
this should only be done in ‘appropriate circumstances.’ Since a flexible test, besides
being unworkable, serves no arguable purpose in protecting any of the possible
constitutional rights enumerated by respondent, we think that petitioners, by acceding to
a rule whereby the inmate is present when mail from attorneys is inspected, have done
all, and perhaps even more, than the Constitution requires. 51
In Hudson v. Palmer,52 the U.S. Supreme Court ruled that an inmate has no reasonable
expectation of privacy inside his cell. The U.S. Supreme Court explained that prisoners
necessarily lose many protections of the Constitution, thus:
However, while persons imprisoned for crime enjoy many protections of the Constitution,
it is also clear that imprisonment carries with it the circumscription or loss of many
significant rights. These constraints on inmates, and in some cases the complete
withdrawal of certain rights, are "justified by the considerations underlying our penal
system." The curtailment of certain rights is necessary, as a practical matter, to
accommodate a myriad of "institutional needs and objectives" of prison facilities, chief
among which is internal security. Of course, these restrictions or retractions also serve,
incidentally, as reminders that, under our system of justice, deterrence and retribution
are factors in addition to correction.53
The later case of State v. Dunn,54 citing Hudson v. Palmer, abandoned Palmigiano v.
Travisono and made no distinction as to the detainees’ limited right to privacy. State v.
Dunn noted the considerable jurisprudence in the United States holding that inmate mail
may be censored for the furtherance of a substantial government interest such as
security or discipline. State v. Dunn declared that if complete censorship is permissible,
then the lesser act of opening the mail and reading it is also permissible. We quote State
v. Dunn:
[A] right of privacy in traditional Fourth Amendment terms is fundamentally incompatible
with the close and continual surveillance of inmates and their cells required to ensure
institutional security and internal order. We are satisfied that society would insist that the
prisoner’s expectation of privacy always yield to what must be considered a paramount
interest in institutional security. We believe that it is accepted by our society that "[l]oss of
freedom of choice and privacy are inherent incidents of confinement."
The distinction between the limited privacy rights of a pre-trial detainee and a convicted
inmate has been blurred as courts in the U.S. ruled that pre-trial detainees might
occasionally pose an even greater security risk than convicted inmates. Bell v.
Wolfish reasoned that those who are detained prior to trial may in many cases be
individuals who are charged with serious crimes or who have prior records and may
therefore pose a greater risk of escape than convicted inmates. 55 Valencia v.
Wiggins56 further held that "it is impractical to draw a line between convicted prisoners
and pre-trial detainees for the purpose of maintaining jail security."
American cases recognize that the unmonitored use of pre-trial detainees’ non-privileged
mail poses a genuine threat to jail security. 57 Hence, when a detainee places his letter in
an envelope for non-privileged mail, the detainee knowingly exposes his letter to possible
inspection by jail officials.58 A pre-trial detainee has no reasonable expectation of privacy
for his incoming mail.59 However, incoming mail from lawyers of inmates enjoys limited
protection such that prison officials can open and inspect the mail for contraband but
could not read the contents without violating the inmates’ right to correspond with his
lawyer.60 The inspection of privileged mail is limited to physical contraband and not to
verbal contraband.61
Thus, we do not agree with the Court of Appeals that the opening and reading of the
detainees’ letters in the present case violated the detainees’ right to privacy of
communication. The letters were not in a sealed envelope. The inspection of the folded
letters is a valid measure as it serves the same purpose as the opening of sealed letters
for the inspection of contraband.
The letters alleged to have been read by the ISAFP authorities were not confidential
letters between the detainees and their lawyers. The petitioner who received the letters
from detainees Trillanes and Maestrecampo was merely acting as the detainees’
personal courier and not as their counsel when he received the letters for mailing. In the
present case, since the letters were not confidential communication between the
detainees and their lawyers, the officials of the ISAFP Detention Center could read
the letters. If the letters are marked confidential communication between the detainees
and their lawyers, the detention officials should not read the letters but only open the
envelopes for inspection in the presence of the detainees.
That a law is required before an executive officer could intrude on a citizen’s privacy
rights62 is a guarantee that is available only to the public at large but not to persons who
are detained or imprisoned. The right to privacy of those detained is subject to Section 4
of RA 7438, as well as to the limitations inherent in lawful detention or imprisonment. By
the very fact of their detention, pre-trial detainees and convicted prisoners have a
diminished expectation of privacy rights.
In assessing the regulations imposed in detention and prison facilities that are alleged to
infringe on the constitutional rights of the detainees and convicted prisoners, U.S. courts
"balance the guarantees of the Constitution with the legitimate concerns of prison
administrators."63 The deferential review of such regulations stems from the principle that:
[s]ubjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny
analysis would seriously hamper their ability to anticipate security problems and to adopt
innovative solutions to the intractable problems of prison administration. 64
The detainees in the present case are junior officers accused of leading 300 soldiers in
committing coup d’etat, a crime punishable with reclusion perpetua.65 The junior officers
are not ordinary detainees but visible leaders of the Oakwood incident involving an
armed takeover of a civilian building in the heart of the financial district of the country. As
members of the military armed forces, the detainees are subject to the Articles of War. 66
Moreover, the junior officers are detained with other high-risk persons from the Abu
Sayyaf and the NPA. Thus, we must give the military custodian a wider range of
deference in implementing the regulations in the ISAFP Detention Center. The military
custodian is in a better position to know the security risks involved in detaining the junior
officers, together with the suspected Abu Sayyaf and NPA members. Since the
appropriate regulations depend largely on the security risks involved, we should defer to
the regulations adopted by the military custodian in the absence of patent arbitrariness.
The ruling in this case, however, does not foreclose the right of detainees and convicted
prisoners from petitioning the courts for the redress of grievances. Regulations and
conditions in detention and prison facilities that violate the Constitutional rights of the
detainees and prisoners will be reviewed by the courts on a case-by-case basis. The G.R. No. 179736, June 26, 2013
courts could afford injunctive relief or damages to the detainees and prisoners subjected
to arbitrary and inhumane conditions. However, habeas corpus is not the proper mode to SPOUSES BILL AND VICTORIA HING, Petitioners, v. ALEXANDER
question conditions of confinement. 67 The writ of habeas corpus will only lie if what is CHOACHUY, SR. AND ALLAN CHOACHUY, Respondents.
challenged is the fact or duration of confinement.68
DECISION
WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of the Court of
Appeals in CA-G.R. SP No. 78545.
DEL CASTILLO, J.:
No pronouncement as to costs.
“The concept of liberty would be emasculated if it does not likewise compel
respect for [one’s] personality as a unique individual whose claim to privacy
SO ORDERED.
and [non]-interference demands respect.”1

This Petition for Review on Certiorari2 under Rule 45 of the Rules of Court
assails the July 10, 2007 Decision3 and the September 11, 2007
Resolution4 of the Court of Appeals (CA) in CA-G.R. CEB-SP No. 01473.

Factual Antecedents

On August 23, 2005, petitioner-spouses Bill and Victoria Hing filed with the
Regional Trial Court (RTC) of Mandaue City a Complaint5 for Injunction and
Damages with prayer for issuance of a Writ of Preliminary Mandatory
Injunction/Temporary Restraining Order (TRO), docketed as Civil Case MAN-
5223 and raffled to Branch 28, against respondents Alexander Choachuy, Sr.
and Allan Choachuy.

Petitioners alleged that they are the registered owners of a parcel of land (Lot
1900-B) covered by Transfer Certificate of Title (TCT) No. 42817 situated in
Barangay Basak, City of Mandaue, Cebu;6 that respondents are the owners of
Aldo Development & Resources, Inc. (Aldo) located at Lots 1901 and 1900-C,
adjacent to the property of petitioners;7 that respondents constructed an
auto-repair shop building (Aldo Goodyear Servitec) on Lot 1900-C; that in
April 2005, Aldo filed a case against petitioners for Injunction and Damages
with Writ of Preliminary Injunction/TRO, docketed as Civil Case No. MAN-
5125;8 that in that case, Aldo claimed that petitioners were constructing a
fence without a valid permit and that the said construction would destroy the
wall of its building, which is adjacent to petitioners’ property; 9 that the court,
in that case, denied Aldo’s application for preliminary injunction for failure to
substantiate its allegations;10 that, in order to get evidence to support the
said case, respondents on June 13, 2005 illegally set-up and installed on the
building of Aldo Goodyear Servitec two video surveillance cameras facing
petitioners’ property;11 that respondents, through their employees and
without the consent of petitioners, also took pictures of petitioners’ on-going
construction;12 and that the acts of respondents violate petitioners’ right to
privacy.13 Thus, petitioners prayed that respondents be ordered to remove
the video surveillance cameras and enjoined from conducting illegal
surveillance.14
In their Answer with Counterclaim,15 respondents claimed that they did not
install the video surveillance cameras,16 nor did they order their employees to
take pictures of petitioners’ construction.17 They also clarified that they are
not the owners of Aldo but are mere stockholders.18
Ruling of the Regional Trial Court
On October 18, 2005, the RTC issued an Order19 granting the application
for a TRO. The dispositive portion of the said Order reads:
WHEREFORE, the application for a [T]emporary [R]estraining [O]rder or a
[W]rit of [P]reliminary [I]njunction is granted. Upon the filing and approval
of a bond by [petitioners], which the Court sets at P50,000.00, let a [W]rit of
[P]reliminary [I]njunction issue against the [respondents] Alexander
Choachuy, Sr. and Allan Choachuy. They are hereby directed to immediately
remove the revolving camera that they installed at the left side of their
building overlooking the side of [petitioners’] lot and to transfer and operate
it elsewhere at the back where [petitioners’] property can no longer be
viewed within a distance of about 2-3 meters from the left corner of Aldo
Servitec, facing the road.
IT IS SO ORDERED.20
21
Respondents moved for a reconsideration but the RTC denied the same in
its Order22 dated February 6, 2006.23 Thus: cralavvonlinelawlib rary
WHEREFORE, the Motion for Reconsideration is hereby DENIED for lack of
merit. Issue a [W]rit of [P]reliminary [I]njunction in consonance with the
Order dated 18 October 2005.
IT IS SO ORDERED. 24
nadcralavvonlinelawl ibrary
Aggrieved, respondents filed with the CA a Petition for Certiorari25 under Rule
65 of the Rules of Court with application for a TRO and/or Writ of Preliminary
Injunction.
Ruling of the Court of Appeals
On July 10, 2007, the CA issued its Decision26 granting the Petition
for Certiorari. The CA ruled that the Writ of Preliminary Injunction was issued
with grave abuse of discretion because petitioners failed to show a clear and
unmistakable right to an injunctive writ.27 The CA explained that the right to
privacy of residence under Article 26(1) of the Civil Code was not violated
since the property subject of the controversy is not used as a
residence.28 The CA also said that since respondents are not the owners of
the building, they could not have installed video surveillance
cameras.29 They are mere stockholders of Aldo, which has a separate
juridical personality.30 Thus, they are not the proper
parties.31 The fallo reads: cralavvonlinelawl ibrary
cralavvonlinelawli brary
WHEREFORE, in view of the foregoing premises, judgment is hereby
rendered by us GRANTING the petition filed in this case. The assailed orders
dated October 18, 2005 and February 6, 2006 issued by the respondent
judge are hereby ANNULLED and SET ASIDE.
SO ORDERED.32 nadcralavvonline lawl ibrary
Issues
Hence, this recourse by petitioners arguing that:
cralavvonlinelaw library
I.
THE X X X [CA] COMMITTED A REVERSIBLE ERROR WHEN IT ANNULLED AND
SET ASIDE THE ORDERS OF THE [RTC] DATED 18 OCTOBER 2005 AND 6
FEBRUARY 2006 HOLDING THAT THEY WERE ISSUED WITH GRAVE ABUSE OF
DISCRETION.
II.
THE X X X [CA] COMMITTED A REVERSIBLE ERROR WHEN IT RULED THAT
PETITIONER SPOUSES HING ARE NOT ENTITLED TO THE WRIT OF
PRELIMINARY INJUNCTION ON THE GROUND THAT THERE IS NO VIOLATION
OF THEIR CONSTITUTIONAL AND CIVIL RIGHT TO PRIVACY DESPITE THE
FACTUAL FINDINGS [OF] THE RTC, WHICH RESPONDENTS CHOACHUY
FAILED TO REFUTE, THAT THE ILLEGALLY INSTALLED SURVEILLANCE
CAMERAS OF RESPONDENTS CHOACH[U]Y WOULD CAPTURE THE PRIVATE
ACTIVITIES OF PETITIONER SPOUSES HING, THEIR CHILDREN AND
EMPLOYEES.
III.
THE X X X [CA] COMMITTED A REVERSIBLE ERROR WHEN IT RULED THAT
SINCE THE OWNER OF THE BUILDING IS ALDO DEVELOPMENT AND
RESOURCES, INC. THEN TO SUE RESPONDENTS CHOACHUY CONSTITUTE[S]
A PURPORTEDLY UNWARRANTED PIERCING OF THE CORPORATE VEIL.
IV.
THE X X X [CA] COMMITTED A REVERSIBLE ERROR WHEN IT IGNORED THE
SERIOUS FORMAL DEFICIENCIES OF BOTH THE PETITION AND THE MOTION
FOR RECONSIDERATION DATED 15 MARCH 2006 OF RESPONDENT[S]
CHOACH[U]Y AND GAVE X X X THEM DUE COURSE AND CONSIDERATION.33
Essentially, the issues boil down to (1) whether there is a violation of
petitioners’ right to privacy, and (2) whether respondents are the proper
parties to this suit.
Petitioners’ Arguments
Petitioners insist that they are entitled to the issuance of a Writ of Preliminary
Injunction because respondents’ installation of a stationary camera directly
facing petitioners’ property and a revolving camera covering a significant
portion of the same property constitutes a violation of petitioners’ right to
privacy.34 Petitioners cite Article 26(1) of the Civil Code, which enjoins
persons from prying into the private lives of others.35 Although the said
provision pertains to the privacy of another’s residence, petitioners opine that
it includes business offices, citing Professor Arturo M. Tolentino.36 Thus, even
assuming arguendo that petitioners’ property is used for business, it is still
covered by the said provision.37
As to whether respondents are the proper parties to implead in this case,
petitioners claim that respondents and Aldo are one and the same, and that
respondents only want to hide behind Aldo’s corporate fiction.38 They point
out that if respondents are not the real owners of the building, where the
video surveillance cameras were installed, then they had no business
consenting to the ocular inspection conducted by the court.39
Respondents’ Arguments
Respondents, on the other hand, echo the ruling of the CA that petitioners
cannot invoke their right to privacy since the property involved is not used as
a residence.40 Respondents maintain that they had nothing to do with the
installation of the video surveillance cameras as these were installed by Aldo,
the registered owner of the building,41 as additional security for its
building. 42 Hence, they were wrongfully impleaded in this case.43
Our Ruling
The Petition is meritorious.
The right to privacy is the right to be let alone.
The right to privacy is enshrined in our Constitution 44 and in our laws. It is
defined as “the right to be free from unwarranted exploitation of one’s person
or from intrusion into one’s private activities in such a way as to cause
humiliation to a person’s ordinary sensibilities.”45 It is the right of an
individual “to be free from unwarranted publicity, or to live without
unwarranted interference by the public in matters in which the public is not
necessarily concerned.”46 Simply put, the right to privacy is “the right to be
let alone.”47
The Bill of Rights guarantees the people’s right to privacy and protects them
against the State’s abuse of power. In this regard, the State recognizes the
right of the people to be secure in their houses. No one, not even the State,
except “in case of overriding social need and then only under the stringent
procedural safeguards,” can disturb them in the privacy of their homes.48
The right to privacy under Article 26(1)
of the Civil Code covers business offices
where the public are excluded therefrom
and only certain individuals are allowed
to enter.
Article 26(1) of the Civil Code, on the other hand, protects an individual’s
right to privacy and provides a legal remedy against abuses that may be
committed against him by other individuals. It states: cralavvonlinelawl ibrary
Art. 26. Every person shall respect the dignity, personality, privacy and
peace of mind of his neighbors and other persons. The following and similar
acts, though they may not constitute a criminal offense, shall produce a
cause of action for damages, prevention and other relief:
(1) Prying into the privacy of another’s residence; chanroblesvirtualawlibrary
xxxx
This provision recognizes that a man’s house is his castle, where his right to
privacy cannot be denied or even restricted by others. It includes “any act of
intrusion into, peeping or peering inquisitively into the residence of another
without the consent of the latter.”49 The phrase “prying into the privacy of
another’s residence,” however, does not mean that only the residence is
entitled to privacy. As elucidated by Civil law expert Arturo M. Tolentino:
Our Code specifically mentions “prying into the privacy of another’s
residence.” This does not mean, however, that only the residence is entitled
to privacy, because the law covers also “similar acts.” A business office is
entitled to the same privacy when the public is excluded therefrom
and only such individuals as are allowed to enter may come in. x x
x50 (Emphasis supplied)
Thus, an individual’s right to privacy under Article 26(1) of the Civil Code
should not be confined to his house or residence as it may extend to places
where he has the right to exclude the public or deny them access. The
phrase “prying into the privacy of another’s residence,” therefore, covers
places, locations, or even situations which an individual considers as
private. And as long as his right is recognized by society, other individuals
may not infringe on his right to privacy. The CA, therefore, erred in limiting
the application of Article 26(1) of the Civil Code only to residences.
The “reasonable expectation of privacy”
test is used to determine whether there
is a violation of the right to privacy.
In ascertaining whether there is a violation of the right to privacy, courts use
the “reasonable expectation of privacy” test. This test determines whether a
person has a reasonable expectation of privacy and whether the expectation
has been violated.51 In Ople v. Torres,52 we enunciated that “the
reasonableness of a person’s expectation of privacy depends on a two-part
test: (1) whether, by his conduct, the individual has exhibited an expectation
of privacy; and (2) this expectation is one that society recognizes as
reasonable.” Customs, community norms, and practices may, therefore, limit
cralavvonlinelawl ibrary or extend an individual’s “reasonable expectation of privacy.”53 Hence, the
reasonableness of a person’s expectation of privacy must be determined on a
case-to-case basis since it depends on the factual circumstances surrounding
the case.54
In this day and age, video surveillance cameras are installed practically
everywhere for the protection and safety of everyone. The installation of
these cameras, however, should not cover places where there is reasonable
expectation of privacy, unless the consent of the individual, whose right to
privacy would be affected, was obtained. Nor should these cameras be used
to pry into the privacy of another’s residence or business office as it would be
no different from eavesdropping, which is a crime under Republic Act No.
4200 or the Anti-Wiretapping Law.
cralavvonlinelaw libra ry
In this case, the RTC, in granting the application for Preliminary Injunction,
ruled that:cralavvonlinelawl ibrary
After careful consideration, there is basis to grant the application for a
temporary restraining order. The operation by [respondents] of a revolving
camera, even if it were mounted on their building, violated the right of
privacy of [petitioners], who are the owners of the adjacent lot. The camera
does not only focus on [respondents’] property or the roof of the factory at
the back (Aldo Development and Resources, Inc.) but it actually spans
through a good portion of [the] land of [petitioners].
Based on the ocular inspection, the Court understands why [petitioner] Hing
was so unyielding in asserting that the revolving camera was set up
deliberately to monitor the on[-]going construction in his property. The
monitor showed only a portion of the roof of the factory of [Aldo]. If the
purpose of [respondents] in setting up a camera at the back is to secure the
building and factory premises, then the camera should revolve only towards
their properties at the back. [Respondents’] camera cannot be made to
extend the view to [petitioners’] lot. To allow the [respondents] to do that
over the objection of the [petitioners] would violate the right of [petitioners]
as property owners. “The owner of a thing cannot make use thereof in such
a manner as to injure the rights of a third person.”55
The RTC, thus, considered that petitioners have a “reasonable expectation of
privacy” in their property, whether they use it as a business office or as a
residence and that the installation of video surveillance cameras directly
facing petitioners’ property or covering a significant portion thereof, without
their consent, is a clear violation of their right to privacy. As we see then,
the issuance of a preliminary injunction was justified. We need not belabor
that the issuance of a preliminary injunction is discretionary on the part of
the court taking cognizance of the case and should not be interfered with,
unless there is grave abuse of discretion committed by the court.56 Here,
there is no indication of any grave abuse of discretion. Hence, the CA erred
in finding that petitioners are not entitled to an injunctive writ.
This brings us to the next question: whether respondents are the proper
parties to this suit.
A real party defendant is one who has a
correlative legal obligation to redress
a wrong done to the plaintiff by reason
of the defendant's act or omission which
had violated the legal right of the former.
Section 2, Rule 3 of the Rules of Court provides: cralavvonlinelawli brary
SEC. 2. Parties-in-interest. — A real party-in-interest is the party who stands
to be benefited or injured by the judgment in the suit, or the party entitled to
the avails of the suit. Unless otherwise authorized by law or these Rules,
every action must be prosecuted or defended in the name of the real party-
in-interest.
A real party defendant is “one who has a correlative legal obligation to
redress a wrong done to the plaintiff by reason of the defendant’s act or
omission which had violated the legal right of the former.”57
In ruling that respondents are not the proper parties, the CA reasoned that
since they do not own the building, they could not have installed the video
surveillance cameras.58 Such reasoning, however, is erroneous. The fact
that respondents are not the registered owners of the building does not
automatically mean that they did not cause the installation of the video
surveillance cameras.
In their Complaint, petitioners claimed that respondents installed the video
surveillance cameras in order to fish for evidence, which could be used
against petitioners in another case.59 During the hearing of the application
for Preliminary Injunction, petitioner Bill testified that when respondents
installed the video surveillance cameras, he immediately broached his
concerns but they did not seem to care,60 and thus, he reported the matter to
the barangay for mediation, and eventually, filed a Complaint against
respondents before the RTC.61 He also admitted that as early as 1998 there
has already been a dispute between his family and the Choachuy family
concerning the boundaries of their respective properties.62 With these factual
circumstances in mind, we believe that respondents are the proper parties to
be impleaded.
Moreover, although Aldo has a juridical personality separate and distinct from
its stockholders, records show that it is a family-owned corporation managed
by the Choachuy family.63
Also quite telling is the fact that respondents, notwithstanding their claim
that they are not owners of the building, allowed the court to enter the
compound of Aldo and conduct an ocular inspection. The counsel for
respondents even toured Judge Marilyn Lagura-Yap inside the building and
answered all her questions regarding the set-up and installation of the video
surveillance cameras.64 And when respondents moved for reconsideration of
the Order dated October 18, 2005 of the RTC, one of the arguments they
raised is that Aldo would suffer damages if the video surveillance cameras are
removed and transferred.65 Noticeably, in these instances, the personalities
of respondents and Aldo seem to merge.
All these taken together lead us to the inevitable conclusion that respondents
are merely using the corporate fiction of Aldo as a shield to protect
themselves from this suit. In view of the foregoing, we find that respondents
are the proper parties to this suit.
WHEREFORE, the Petition is hereby GRANTED. The Decision dated July 10,
2007 and the Resolution dated September 11, 2007 of the Court of Appeals
in CA-G.R. CEB-SP No. 01473 are hereby REVERSED and SET ASIDE. The
Orders dated October 18, 2005 and February 6, 200[6] of Branch 28 of the
Regional Trial Court of Mandaue City in Civil Case No. MAN-5223 are
hereby REINSTATED and AFFIRMED.
SO ORDERED.