FIRST DIVISION

[G.R. No. 155076. February 27, 2006.]

LUIS MARCOS P. LAUREL , petitioner, vs. HON. ZEUS C.

ABROGAR, Presiding Judge of the Regional Trial Court,
Makati City, Branch 150, PEOPLE OF THE PHILIPPINES &
PHILIPPINE LONG DISTANCE TELEPHONE COMPANY ,
respondents.

Salonga Hernandez & Mendoza for petitioner.

Angara Abello Concepcion Regala & Cruz for PLDT.
SYLLABUS
Â
1. Â REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; CAN BE
AVAILED OF IF THERE ARE SPECIAL CIRCUMSTANCES CLEARLY
DEMONSTRATING THE INADEQUACY OF AN APPEAL. — On the issue of
whether or not the petition for certiorari instituted by the petitioner in the CA
is proper, the general rule is that a petition for certiorari under Rule 65 of the
Rules of Court, as amended, to nullify an order denying a motion to quash
the Information is inappropriate because the aggrieved party has a remedy
of appeal in the ordinary course of law. Appeal and certiorari are mutually
exclusive of each other. The remedy of the aggrieved party is to continue
with the case in due course and, when an unfavorable judgment is rendered,
assail the order and the decision on appeal. However, if the trial court issues
the order denying the motion to quash, the Amended Information with grave
abuse of discretion amounting to excess or lack of jurisdiction, or if such
order is patently erroneous, or null and void for being contrary to the
Constitution, and the remedy of appeal would not afford adequate and
expeditious relief, the accused may resort to the extraordinary remedy of
certiorari. A special civil action for certiorari is also available where there are
special circumstances clearly demonstrating the inadequacy of an appeal. As
this Court held in Bristol Myers Squibb (Phils.), Inc. v. Viloria: Nonetheless,
the settled rule is that a writ of certiorari may be granted in cases where,
despite availability of appeal after trial, there is at least a prima facie
showing on the face of the petition and its annexes that: (a) the trial court
issued the order with grave abuse of discretion amounting to lack of or in
excess of jurisdiction; (b) appeal would not prove to be a speedy and
adequate remedy; (c) where the order is a patent nullity; (d) the decision in
the present case will arrest future litigations; and (e) for certain
considerations such as public welfare and public policy.
2. Â ID.; CRIMINAL PROCEDURE; PROSECUTION OF OFFENSES;
INFORMATION OR COMPLAINT; MUST STATE EXPLICITLY AND DIRECTLY
EVERY ACT OR OMISSION CONSTITUTING AN OFFENSE. — An information or
complaint must state explicitly and directly every act or omission
constituting an offense and must allege facts establishing conduct that a
penal statute makes criminal; and describes the property which is the
subject of theft to advise the accused with reasonable certainty of the
accusation he is called upon to meet at the trial and to enable him to rely on
the judgment thereunder of a subsequent prosecution for the same offense.
It must show, on its face, that if the alleged facts are true, an offense has
been committed. The rule is rooted on the constitutional right of the accused
to be informed of the nature of the crime or cause of the accusation against
him. He cannot be convicted of an offense even if proven unless it is alleged
or necessarily included in the Information filed against him.
3. Â ID.; ID.; ID.; ID.; SHOULD BE QUASHED IF THE FACTS ALLEGED
THEREIN DO NOT CONSTITUTE AN OFFENSE. — As a general prerequisite, a
motion to quash on the ground that the Information does not constitute the
offense charged, or any offense for that matter, should be resolved on the
basis of said allegations whose truth and veracity are hypothetically
committed; and on additional facts admitted or not denied by the
prosecution. If the facts alleged in the Information do not constitute an
offense, the complaint or information should be quashed by the court.
4. Â CRIMINAL LAW; THEFT; INTERNATIONAL TELEPHONE CALLS,
TELECOMMUNICATION SERVICES AND BUSINESS ARE NOT PERSONAL
PROPERTIES. — On the second issue, we find and so hold that the
international telephone calls placed by the Bay Super Orient Card holders,
the telecommunication services provided by PLDT and its business of
providing said services are not personal properties under Article 308 of the
Revised Penal Code. The construction by the respondents of Article 308 of
the said Code to include, within its coverage, the aforesaid international
telephone calls, telecommunication services and business is contrary to the
letter and intent of the law.
ACETSa

5. Â STATUTORY CONSTRUCTION; INTERPRETATION OF STATUTES;

PENAL LAWS ARE TO BE CONSTRUED STRICTLY. — The rule is that, penal
laws are to be construed strictly. Such rule is founded on the tenderness of
the law for the rights of individuals and on the plain principle that the power
of punishment is vested in Congress, not in the judicial department. It is
Congress, not the Court, which is to define a crime, and ordain its
punishment. Due respect for the prerogative of Congress in defining
crimes/felonies constrains the Court to refrain from a broad interpretation of
penal laws where a "narrow interpretation" is appropriate. The Court must
take heed to language, legislative history and purpose, in order to strictly
determine the wrath and breath of the conduct the law forbids. However,
when the congressional purpose is unclear, the court must apply the rule of
lenity, that is, ambiguity concerning the ambit of criminal statutes should be
resolved in favor of lenity.
6. Â ID.; ID.; PENAL STATUTES MAY NOT BE ENLARGED BY
IMPLICATION. — Penal statutes may not be enlarged by implication or intent
beyond the fair meaning of the language used; and may not be held to
include offenses other than those which are clearly described,
notwithstanding that the Court may think that Congress should have made
them more comprehensive. Words and phrases in a statute are to be
construed according to their common meaning and accepted usage. As Chief
Justice John Marshall declared, "it would be dangerous, indeed, to carry the
principle that a case which is within the reason or mischief of a statute is
within its provision, so far as to punish a crime not enumerated in the
statute because it is of equal atrocity, or of kindred character with those
which are enumerated. When interpreting a criminal statute that does not
explicitly reach the conduct in question, the Court should not base an
expansive reading on inferences from subjective and variable understanding.
7. Â CRIMINAL LAW; THEFT; ELEMENTS. — For one to be guilty of
theft, the accused must have an intent to steal (animus furandi) personal
property, meaning the intent to deprive another of his ownership/lawful
possession of personal property which intent is apart from and concurrently
with the general criminal intent which is an essential element of a felony of
dolo (dolus malus). An information or complaint for simple theft must allege
the following elements: (a) the taking of personal property; (b) the said
property belongs to another; (c) the taking be done with intent to gain; and
(d) the taking be accomplished without the use of violence or intimidation of
person/s or force upon things.
8. Â ID.; ID.; ONLY MOVABLE PROPERTIES WHICH HAVE PHYSICAL
OR MATERIAL EXISTENCE AND SUSCEPTIBLE OF OCCUPATION BY ANOTHER
ARE PROPER OBJECTS THEREOF. — One is apt to conclude that "personal
property" standing alone, covers both tangible and intangible properties and
are subject of theft under the Revised Penal Code. But the words "Personal
property" under the Revised Penal Code must be considered in tandem with
the word "take" in the law. The statutory definition of "taking" and movable
property indicates that, clearly, not all personal properties may be the proper
subjects of theft. The general rule is that, only movable properties which
have physical or material existence and susceptible of occupation by
another are proper objects of theft. As explained by Cuelo Callon: "Cosa
juridicamente es toda sustancia corporal, material, susceptible de ser
aprehendida que tenga un valor cualquiera."
9. Â ID.; ID.; INTANGIBLE PROPERTIES CANNOT BE THE SUBJECT
THEREOF. — According to Cuello Callon, in the context of the Penal Code,
only those movable properties which can be taken and carried from the
place they are found are proper subjects of theft. Intangible properties such
as rights and ideas are not subjects of theft because the same cannot be
"taken" from the place it is found and is occupied or appropriated. . . . Thus,
movable properties under Article 308 of the Revised Penal Code should be
distinguished from the rights or interests to which they relate. A naked right
existing merely in contemplation of law, although it may be very valuable to
the person who is entitled to exercise it, is not the subject of larceny. Such
rights or interests are intangible and cannot be "taken" by another. Thus,
right to produce oil, good will or an interest in business, or the right to
engage in business, credit or franchise are properties. So is the credit line
represented by a credit card. However, they are not proper subjects of theft
or larceny because they are without form or substance, the mere "breath" of
the Congress. On the other hand, goods, wares and merchandise of
businessmen and credit cards issued to them are movable properties with
physical and material existence and may be taken by another; hence, proper
subjects of theft.
10. Â ID.; ID.; CONSUMMATED WHEN THE OFFENDER UNLAWFULLY
ACQUIRES POSSESSION OF PERSONAL PROPERTY EVEN IF FOR A SHORT
TIME. — There is "taking" of personal property, and theft is consummated
when the offender unlawfully acquires possession of personal property even
if for a short time; or if such property is under the dominion and control of
the thief. The taker, at some particular amount, must have obtained
complete and absolute possession and control of the property adverse to the
rights of the owner or the lawful possessor thereof. It is not necessary that
the property be actually carried away out of the physical possession of the
lawful possessor or that he should have made his escape with it. Neither
asportation nor actual manual possession of property is required.
Constructive possession of the thief of the property is enough. The essence
of the element is the taking of a thing out of the possession of the owner
without his privity and consent and without animus revertendi. Taking may
be by the offender's own hands, by his use of innocent persons without any
felonious intent, as well as any mechanical device, such as an access device
or card, or any agency, animate or inanimate, with intent to gain. Intent to
gain includes the unlawful taking of personal property for the purpose of
deriving utility, satisfaction, enjoyment and pleasure.
EScHDA

11. Â ID.; ID.; INTANGIBLE PROPERTIES SUCH AS ELECTRICAL

ENERGY AND GAS ARE PROPER SUBJECTS THEREOF. — We agree with the
contention of the respondents that intangible properties such as electrical
energy and gas are proper subjects of theft. The reason for this is that, as
explained by this Court in United States v. Carlos a n d United States v.
Tambunting, based on decisions of the Supreme Court of Spain and of the
courts in England and the United States of America, gas or electricity are
capable of appropriation by another other than the owner. Gas and electrical
energy may be taken, carried away and appropriated. In People vs. Menagas,
the Illinois State Supreme Court declared that electricity, like gas, may be
seen and felt. Electricity, the same as gas, is a valuable article of
merchandise, bought and sold like other personal property and is capable of
appropriation by another. It is a valuable article of merchandise, bought and
sold like other personal property, susceptible of being severed from a mass
or larger quantity and of being transported from place to place. Electrical
energy may, likewise, be taken and carried away. It is a valuable commodity,
bought and sold like other personal property. It may be transported from
place to place. There is nothing in the nature of gas used for illuminating
purposes which renders it incapable of being feloniously taken and carried
away.
12. Â ID.; ID.; GAS AND ELECTRICAL ENERGY SHOULD NOT BE
EQUATED WITH BUSINESS OR SERVICES PROVIDED BY BUSINESS
ENTREPRENEURS TO THE PUBLIC. — Gas and electrical energy should not be
equated with business or services provided by business entrepreneurs to the
public. Business does not have an exact definition. Business is referred as
that which occupies the time, attention and labor of men for the purpose of
livelihood or profit. It embraces everything that which a person can be
employed. Business may also mean employment, occupation or profession.
Business is also defined as a commercial activity for gain benefit or
advantage. Business, like services, although are properties, are not proper
subjects of theft under the Revised Penal Code because the same cannot be
"taken" or "occupied." If it were otherwise, as claimed by the respondents,
there would be no juridical difference between the taking of the business of
a person or the services provided by him for gain, vis-Ã -vis , the taking of
goods, wares or merchandise, or equipment comprising his business. If it
was its intention to include "business" as personal property under Article 308
of the Revised Penal Code, the Philippine Legislature should have spoken in
language that is clear and definite: that business is personal property under
Article 308 of the Revised Penal Code.
13. Â ID.; ID.; LEGISLATURE COULD NOT HAVE CONTEMPLATED THE
HUMAN VOICE WHICH IS CONVERTED INTO ELECTRONIC IMPULSES OR
ELECTRICAL CURRENT WHICH ARE TRANSMITTED TO THE PARTY WITHIN THE
COVERAGE THEREOF. — In defining theft, under Article 308 of the Revised
Penal Code, as the taking of personal property without the consent of the
owner thereof, the Philippine Legislature could not have contemplated the
human voice which is converted into electronic impulses or electrical current
which are transmitted to the party called through the PSTN of respondent
PLDT and the ISR of Baynet Card Ltd. within its coverage. When the Revised
Penal Code was approved, on December 8, 1930, international telephone
calls and the transmission and routing of electronic voice signals or impulses
emanating from said calls, through the PSTN, IPL and ISR, were still non-
existent. Case law is that, where a legislative history fails to evidence
congressional awareness of the scope of the statute claimed by the
respondents, a narrow interpretation of the law is more consistent with the
usual approach to the construction of the statute. Penal responsibility cannot
be extended beyond the fair scope of the statutory mandate. Respondent
PLDT does not acquire possession, much less, ownership of the voices of the
telephone callers or of the electronic voice signals or current emanating from
said calls. The human voice and the electronic voice signals or current
caused thereby are intangible and not susceptible of possession, occupation
or appropriation by the respondent PLDT or even the petitioner, for that
matter. PLDT merely transmits the electronic voice signals through its
facilities and equipment. Baynet Card Ltd., through its operator, merely
intercepts, reroutes the calls and passes them to its toll center. Indeed, the
parties called receive the telephone calls from Japan.
14. Â ID.; ID.; SERVICE IS GENERALLY NOT CONSIDERED PROPERTY.
— The petitioner is not charged, under the Amended Information, for theft of
telecommunication or telephone services offered by PLDT. Even if he is, the
term "personal property" under Article 308 of the Revised Penal Code cannot
be interpreted beyond its seams so as to include "telecommunication or
telephone services" or computer services for that matter. The word "service"
has a variety of meanings dependent upon the context, or the sense in
which it is used; and, in some instances, it may include a sale. For instance,
the sale of food by restaurants is usually referred to as "service," although
an actual sale is involved. It may also mean the duty or labor to be rendered
by one person to another; performance of labor for the benefit of another. In
the case of PLDT, it is to render local and international telecommunications
services and such other services as authorized by the CPCA issued by the
NTC. Even at common law, neither time nor services may be taken and
occupied or appropriated. A service is generally not considered property and
a theft of service would not, therefore, constitute theft since there can be no
caption or asportation. Neither is the unauthorized use of the equipment and
facilities of PLDT by the petitioner theft under the aforequoted provision of
the Revised Penal Code. If it was the intent of the Philippine Legislature, in
1930, to include services to be the subject of theft, it should have
incorporated the same in Article 308 of the Revised Penal Code. The
Legislature did not. In fact, the Revised Penal Code does not even contain a
definition of services.
15. Â STATUTORY CONSTRUCTION; INTERPRETATION OF STATUTES;
IF TAKING OF TELECOMMUNICATION SERVICES OR THE BUSINESS OF A
PERSON IS TO BE PROSCRIBED, IT MUST BE BY SPECIAL STATUTE OR AN
AMENDMENT OF THE REVISED PENAL CODE. — If taking of
telecommunication services or the business of a person, is to be proscribed,
it must be by special statute or an amendment of the Revised Penal Code.
Several states in the United States, such as New York, New Jersey, California
and Virginia, realized that their criminal statutes did not contain any
provision penalizing the theft of services and passed laws defining and
penalizing theft of telephone and computer services.
16. Â ID.; REPUBLIC ACT NO. 8484 (ACCESS DEVICES REGULATION
ACT OF 1998); CONSPIRACY TO COMMIT ACCESS DEVICES FRAUD IS A
CRIME. — In the Philippines, Congress has not amended the Revised Penal
Code to include theft of services or theft of business as felonies. Instead, it
approved a law, Republic Act No. 8484, otherwise known as the Access
Devices Regulation Act of 1998, on February 11, 1998. Under the law, an
access device means any card, plate, code, account number, electronic
serial number, personal identification number and other telecommunication
services, equipment or instrumentalities-identifier or other means of account
access that can be used to obtain money, goods, services or any other thing
of value or to initiate a transfer of funds other than a transfer originated
solely by paper instrument. Among the prohibited acts enumerated in
Section 9 of the law are the acts of obtaining money or anything of value
through the use of an access device, with intent to defraud or intent to gain
and fleeing thereafter; and of effecting transactions with one or more access
devices issued to another person or persons to receive payment or any other
thing of value. Under Section 11 of the law, conspiracy to commit access
devices fraud is a crime. However, the petitioner is not charged of violation
of R.A. 8484.DEHaTC

17. Â ID.; ID.; PROSECUTION THEREUNDER SHALL BE WITHOUT

PREJUDICE TO ANY LIABILITY FOR VIOLATION OF ANY PROVISIONS OF THE
REVISED PENAL CODE. — Significantly, a prosecution under the law shall be
without prejudice to any liability for violation of any provisions of the Revised
Penal Code inclusive of theft under Rule 308 of the Revised Penal Code and
estafa under Article 315 of the Revised Penal Code. Thus, if an individual
steals a credit card and uses the same to obtain services, he is liable of the
following: theft of the credit card under Article 308 of the Revised Penal
Code; violation of Republic Act No. 8484; and estafa under Article 315 (2) (a)
of the Revised Penal Code with the service provider as the private
complainant. The petitioner is not charged of estafa before the RTC in the
Amended Information.

DECISION

CALLEJO, SR., J :p

Before us is a Petition for Review on Certiorari of the Decision 1 of the

Court of Appeals (CA) in CA-G.R. SP No. 68841 affirming the Order issued by
Judge Zeus C. Abrogar, Regional Trial Court (RTC), Makati City, Branch 150,
which denied the "Motion to Quash (With Motion to Defer Arraignment)" in
Criminal Case No. 99-2425 for theft.
Philippine Long Distance Telephone Company (PLDT) is the holder of a
legislative franchise to render local and international telecommunication
services under Republic Act No. 7082. 2 Under said law, PLDT is authorized
to establish, operate, manage, lease, maintain and purchase
telecommunication systems, including transmitting, receiving and switching
stations, for both domestic and international calls. For this purpose, it has
installed an estimated 1.7 million telephone lines nationwide. PLDT also
offers other services as authorized by Certificates of Public Convenience and
Necessity (CPCN) duly issued by the National Telecommunications
Commission (NTC), and operates and maintains an International Gateway
Facility (IGF). The PLDT network is thus principally composed of the Public
Switch Telephone Network (PSTN), telephone handsets and/or
telecommunications equipment used by its subscribers, the wires and cables
linking said telephone handsets and/or telecommunications equipment,
antenna, the IGF, and other telecommunications equipment which provide
interconnections. 3
PLDT alleges that one of the alternative calling patterns that constitute
network fraud and violate its network integrity is that which is known as
International Simple Resale (ISR). ISR is a method of routing and completing
international long distance calls using International Private Leased Lines
(IPL), cables, antenna or air wave or frequency, which connect directly to the
local or domestic exchange facilities of the terminating country (the country
where the call is destined). The IPL is linked to switching equipment which is
connected to a PLDT telephone line/number. In the process, the calls bypass
the IGF found at the terminating country, or in some instances, even those
from the originating country. 4
 One such alternative calling service is that offered by Baynet Co., Ltd.
(Baynet) which sells "Bay Super Orient Card" phone cards to people who call
their friends and relatives in the Philippines. With said card, one is entitled to
a 27-minute call to the Philippines for about ¥37.03 per minute. After
dialing the ISR access number indicated in the phone card, the ISR operator
requests the subscriber to give the PIN number also indicated in the phone
card. Once the caller's identity (as purchaser of the phone card) is
confirmed, the ISR operator will then provide a Philippine local line to the
requesting caller via the IPL. According to PLDT, calls made through the IPL
never pass the toll center of IGF operators in the Philippines. Using the local
line, the Baynet card user is able to place a call to any point in the
Philippines, provided the local line is National Direct Dial (NDD) capable. 5
PLDT asserts that Baynet conducts its ISR activities by utilizing an IPL
to course its incoming international long distance calls from Japan. The IPL is
linked to switching equipment, which is then connected to PLDT telephone
lines/numbers and equipment, with Baynet as subscriber. Through the use of
the telephone lines and other auxiliary equipment, Baynet is able to connect
an international long distance call from Japan to any part of the Philippines,
and make it appear as a call originating from Metro Manila. Consequently,
the operator of an ISR is able to evade payment of access, termination or
bypass charges and accounting rates, as well as compliance with the
regulatory requirements of the NTC. Thus, the ISR operator offers
international telecommunication services at a lower rate, to the damage and
prejudice of legitimate operators like PLDT. 6
PLDT pointed out that Baynet utilized the following equipment for its
ISR activities: lines, cables, and antennas or equipment or device capable of
transmitting air waves or frequency, such as an IPL and telephone lines and
equipment; computers or any equipment or device capable of accepting
information applying the prescribed process of the information and supplying
the result of this process; modems or any equipment or device that enables
a data terminal equipment such as computers to communicate with other
data terminal equipment via a telephone line; multiplexers or any equipment
or device that enables two or more signals from different sources to pass
through a common cable or transmission line; switching equipment, or
equipment or device capable of connecting telephone lines; and software,
diskettes, tapes or equipment or device used for recording and storing
information. 7
PLDT also discovered that Baynet subscribed to a total of 123 PLDT
telephone lines/numbers. 8 Based on the Traffic Study conducted on the
volume of calls passing through Baynet's ISR network which bypass the IGF
toll center, PLDT incurred an estimated monthly loss of P10,185,325.96. 9
Records at the Securities and Exchange Commission (SEC) also revealed that
Baynet was not authorized to provide international or domestic long distance
telephone service in the country. The following are its officers: Yuji Hijioka, a
Japanese national (chairman of the board of directors); Gina C. Mukaida, a
Filipina (board member and president); Luis Marcos P. Laurel, a Filipino
(board member and corporate secretary); Ricky Chan Pe, a Filipino (board
member and treasurer); and Yasushi Ueshima, also a Japanese national
(board member). HcDaAI

Upon complaint of PLDT against Baynet for network fraud, and on the
strength of two search warrants 10 issued by the RTC of Makati, Branch 147,
National Bureau of Investigation (NBI) agents searched its office at the 7th
Floor, SJG Building, Kalayaan Avenue, Makati City on November 8, 1999.
Atsushi Matsuura, Nobuyoshi Miyake, Edourd D. Lacson and Rolando J.
Villegas were arrested by NBI agents while in the act of manning the
operations of Baynet. Seized in the premises during the search were
numerous equipment and devices used in its ISR activities, such as
multiplexers, modems, computer monitors, CPUs, antenna, assorted
computer peripheral cords and microprocessors, cables/wires, assorted PLDT
statement of accounts, parabolic antennae and voltage regulators.
State Prosecutor Ofelia L. Calo conducted an inquest investigation and
issued a Resolution 11 on January 28, 2000, finding probable cause for theft
under Article 308 of the Revised Penal Code and Presidential Decree No. 401
12 against the respondents therein, including Laurel.

On February 8, 2000, State Prosecutor Calo filed an Information with

the RTC of Makati City charging Matsuura, Miyake, Lacson and Villegas with
theft under Article 308 of the Revised Penal Code. After conducting the
requisite preliminary investigation, the State Prosecutor filed an Amended
Information impleading Laurel (a partner in the law firm of Ingles, Laurel,
Salinas, and, until November 19, 1999, a member of the board of directors
and corporate secretary of Baynet), and the other members of the board of
directors of said corporation, namely, Yuji Hijioka, Yasushi Ueshima,
Mukaida, Lacson and Villegas, as accused for theft under Article 308 of the
Revised Penal Code. The inculpatory portion of the Amended Information
reads:
On or about September 10-19, 1999, or prior thereto, in Makati
City, and within the jurisdiction of this Honorable Court, the accused,
conspiring and confederating together and all of them mutually
helping and aiding one another, with intent to gain and without the
knowledge and consent of the Philippine Long Distance Telephone
(PLDT), did then and there willfully, unlawfully and feloniously take,
steal and use the international long distance calls belonging to PLDT
by conducting International Simple Resale (ISR), which is a method of
routing and completing international long distance calls using lines,
cables, antennae, and/or air wave frequency which connect directly
to the local or domestic exchange facilities of the country where the
call is destined, effectively stealing this business from PLDT while
using its facilities in the estimated amount of P20,370,651.92 to the
damage and prejudice of PLDT, in the said amount.
CONTRARY TO LAW. 13
Accused Laurel filed a "Motion to Quash (with Motion to Defer
Arraignment)" on the ground that the factual allegations in the Amended
Information do not constitute the felony of theft under Article 308 of the
Revised Penal Code. He averred that the Revised Penal Code, or any other
special penal law for that matter, does not prohibit ISR operations. He
claimed that telephone calls with the use of PLDT telephone lines, whether
domestic or international, belong to the persons making the call, not to PLDT.
He argued that the caller merely uses the facilities of PLDT, and what the
latter owns are the telecommunication infrastructures or facilities through
which the call is made. He also asserted that PLDT is compensated for the
caller's use of its facilities by way of rental; for an outgoing overseas call,
PLDT charges the caller per minute, based on the duration of the call. Thus,
no personal property was stolen from PLDT. According to Laurel, the
P20,370,651.92 stated in the Information, if anything, represents the rental
for the use of PLDT facilities, and not the value of anything owned by it.
Finally, he averred that the allegations in the Amended Information are
already subsumed under the Information for violation of Presidential Decree
(P.D.) No. 401 filed and pending in the Metropolitan Trial Court of Makati
City, docketed as Criminal Case No. 276766.
The prosecution, through private complainant PLDT, opposed the
motion, 14 contending that the movant unlawfully took personal property
belonging to it, as follows: 1) intangible telephone services that are being
offered by PLDT and other telecommunication companies, i.e ., the
connection and interconnection to their telephone lines/facilities; 2) the use
of those facilities over a period of time; and 3) the revenues derived in
connection with the rendition of such services and the use of such facilities.
15

The prosecution asserted that the use of PLDT's intangible telephone

services/facilities allows electronic voice signals to pass through the same,
and ultimately to the called party's number. It averred that such
service/facility is akin to electricity which, although an intangible property,
may, nevertheless, be appropriated and be the subject of theft. Such service
over a period of time for a consideration is the business that PLDT provides
to its customers, which enables the latter to send various messages to
installed recipients. The service rendered by PLDT is akin to merchandise
which has specific value, and therefore, capable of appropriation by another,
as in this case, through the ISR operations conducted by the movant and his
co-accused. TCAHES

The prosecution further alleged that "international business calls and

revenues constitute personal property envisaged in Article 308 of the
Revised Penal Code." Moreover, the intangible telephone services/facilities
belong to PLDT and not to the movant and the other accused, because they
have no telephone services and facilities of their own duly authorized by the
NTC; thus, the taking by the movant and his co-accused of PLDT services
was with intent to gain and without the latter's consent.
The prosecution pointed out that the accused, as well as the movant,
were paid in exchange for their illegal appropriation and use of PLDT's
telephone services and facilities; on the other hand, the accused did not pay
a single centavo for their illegal ISR operations. Thus, the acts of the accused
were akin to the use of a "jumper" by a consumer to deflect the current from
the house electric meter, thereby enabling one to steal electricity. The
prosecution emphasized that its position is fortified by the Resolutions of the
Department of Justice in PLDT v. Tiongson, et al. (I.S. No. 97-0925) and in
PAOCTF-PLDT v. Elton John Tuason, et al . (I.S. No. 2000-370) which were
issued on August 14, 2000 finding probable cause for theft against the
respondents therein.
On September 14, 2001, the RTC issued an Order 16 denying the
Motion to Quash the Amended Information. The court declared that,
although there is no law that expressly prohibits the use of ISR, the facts
alleged in the Amended Information "will show how the alleged crime was
committed by conducting ISR," to the damage and prejudice of PLDT.
Laurel filed a Motion for Reconsideration 17 of the Order, alleging that
international long distance calls are not personal property, and are not
capable of appropriation. He maintained that business or revenue is not
considered personal property, and that the prosecution failed to adduce
proof of its existence and the subsequent loss of personal property
belonging to another. Citing the ruling of the Court in United States v. De
Guzman, 18 Laurel averred that the case is not one with telephone calls
which originate with a particular caller and terminates with the called party.
He insisted that telephone calls are considered privileged communications
under the Constitution and cannot be considered as "the property of PLDT."
He further argued that there is no kinship between telephone calls and
electricity or gas, as the latter are forms of energy which are generated and
consumable, and may be considered as personal property because of such
characteristic. On the other hand, the movant argued, the telephone
business is not a form of energy but is an activity.
In its Order 19 dated December 11, 2001, the RTC denied the movant's
Motion for Reconsideration. This time, it ruled that what was stolen from
PLDT was its "business" because, as alleged in the Amended Information,
the international long distance calls made through the facilities of PLDT
formed part of its business. The RTC noted that the movant was charged
with stealing the business of PLDT. To support its ruling, it cited Strochecker
v. Ramirez , 20 where the Court ruled that interest in business is personal
property capable of appropriation. It further declared that, through their ISR
operations, the movant and his co-accused deprived PLDT of fees for
international long distance calls, and that the ISR used by the movant and
his co-accused was no different from the "jumper" used for stealing
electricity.
Laurel then filed a Petition for Certiorari with the CA, assailing the
Order of the RTC. He alleged that the respondent judge gravely abused his
discretion in denying his Motion to Quash the Amended Information. 21 As
gleaned from the material averments of the amended information, he was
charged with stealing the international long distance calls belonging to PLDT,
not its business. Moreover, the RTC failed to distinguish between the
business of PLDT (providing services for international long distance calls)
and the revenues derived therefrom. He opined that a "business" or its
revenues cannot be considered as personal property under Article 308 of the
Revised Penal Code, since a "business" is "(1) a commercial or mercantile
activity customarily engaged in as a means of livelihood and typically
involving some independence of judgment and power of decision; (2) a
commercial or industrial enterprise; and (3) refers to transactions, dealings
or intercourse of any nature." On the other hand, the term "revenue" is
defined as "the income that comes back from an investment (as in real or
personal property); the annual or periodical rents, profits, interests, or issues
of any species of real or personal property." 22
Laurel further posited that an electric company's business is the
production and distribution of electricity; a gas company's business is the
production and/or distribution of gas (as fuel); while a water company's
business is the production and distribution of potable water. He argued that
the "business" in all these cases is the commercial activity, while the goods
and merchandise are the products of such activity. Thus, in prosecutions for
theft of certain forms of energy, it is the electricity or gas which is alleged to
be stolen and not the "business" of providing electricity or gas. However,
since a telephone company does not produce any energy, goods or
merchandise and merely renders a service or, in the words of PLDT, "the
connection and interconnection to their telephone lines/facilities," such
service cannot be the subject of theft as defined in Article 308 of the Revised
Penal Code. 23
He further declared that to categorize "business" as personal property
under Article 308 of the Revised Penal Code would lead to absurd
consequences; in prosecutions for theft of gas, electricity or water, it would
then be permissible to allege in the Information that it is the gas business,
the electric business or the water business which has been stolen, and no
longer the merchandise produced by such enterprise. 24
Laurel further cited the Resolution of the Secretary of Justice in Piltel v.
Mendoza, 25 where it was ruled that the Revised Penal Code, legislated as it
was before present technological advances were even conceived, is not
adequate to address the novel means of "stealing" airwaves or airtime. In
said resolution, it was noted that the inadequacy prompted the filing of
Senate Bill 2379 (sic) entitled "The Anti-Telecommunications Fraud of 1997"
to deter cloning of cellular phones and other forms of communications fraud.
The said bill "aims to protect in number (ESN) (sic) or Capcode, mobile
identification number (MIN), electronic-international mobile equipment
identity (EMEI/IMEI), or subscriber identity module" and "any attempt to
duplicate the data on another cellular phone without the consent of a public
telecommunications entity would be punishable by law." 26 Thus, Laurel
concluded, "there is no crime if there is no law punishing the crime." THADEI

On August 30, 2002, the CA rendered judgment dismissing the petition.

27 The appellate court ruled that a petition for certiorari under Rule 65 of the
Rules of Court was not the proper remedy of the petitioner. On the merits of
the petition, it held that while business is generally an activity which is
abstract and intangible in form, it is nevertheless considered "property"
under Article 308 of the Revised Penal Code. The CA opined that PLDT's
business of providing international calls is personal property which may be
the object of theft, and cited United States v. Carlos 28 to support such
conclusion. The tribunal also cited Strochecker v. Ramirez , 29 where this
Court ruled that one-half interest in a day's business is personal property
under Section 2 of Act No. 3952, otherwise known as the Bulk Sales Law.
The appellate court held that the operations of the ISR are not subsumed in
the charge for violation of P.D. No. 401.
Laurel, now the petitioner, assails the decision of the CA, contending
that —
THE COURT OF APPEALS ERRED IN RULING THAT THE
PERSONAL PROPERTY ALLEGEDLY STOLEN PER THE INFORMATION IS
NOT THE "INTERNATIONAL LONG DISTANCE CALLS" BUT THE
"BUSINESS OF PLDT."
THE COURT OF APPEALS ERRED IN RULING THAT THE TERM
"BUSINESS" IS PERSONAL PROPERTY WITHIN THE MEANING OF ART.
308 OF THE REVISED PENAL CODE. 30
Petitioner avers that the petition for a writ of certiorari may be filed to
nullify an interlocutory order of the trial court which was issued with grave
abuse of discretion amounting to excess or lack of jurisdiction. In support of
his petition before the Court, he reiterates the arguments in his pleadings
filed before the CA. He further claims that while the right to carry on a
business or an interest or participation in business is considered property
under the New Civil Code, the term "business," however, is not. He asserts
that the Philippine Legislature, which approved the Revised Penal Code way
back in January 1, 1932, could not have contemplated to include
international long distance calls and "business" as personal property under
Article 308 thereof.
In its comment on the petition, the Office of the Solicitor General (OSG)
maintains that the amended information clearly states all the essential
elements of the crime of theft. Petitioner's interpretation as to whether an
"international long distance call" is personal property under the law is
inconsequential, as a reading of the amended information readily reveals
that specific acts and circumstances were alleged charging Baynet, through
its officers, including petitioner, of feloniously taking, stealing and illegally
using international long distance calls belonging to respondent PLDT by
conducting ISR operations, thus, "routing and completing international long
distance calls using lines, cables, antenna and/or airwave frequency which
connect directly to the local or domestic exchange facilities of the country
where the call is destined." The OSG maintains that the international long
distance calls alleged in the amended information should be construed to
mean "business" of PLDT, which, while abstract and intangible in form, is
personal property susceptible of appropriation. 31 The OSG avers that what
was stolen by petitioner and his co-accused is the business of PLDT providing
international long distance calls which, though intangible, is personal
property of the PLDT. 32
For its part, respondent PLDT asserts that personal property under
Article 308 of the Revised Penal Code comprehends intangible property such
as electricity and gas which are valuable articles for merchandise, brought
and sold like other personal property, and are capable of appropriation. It
insists that the business of international calls and revenues constitute
personal property because the same are valuable articles of merchandise.
The respondent reiterates that international calls involve (a) the intangible
telephone services that are being offered by it, that is, the connection and
interconnection to the telephone network, lines or facilities; (b) the use of its
telephone network, lines or facilities over a period of time; and (c) the
income derived in connection therewith. 33
PLDT further posits that business revenues or the income derived in
connection with the rendition of such services and the use of its telephone
network, lines or facilities are personal properties under Article 308 of the
Revised Penal Code; so is the use of said telephone services/telephone
network, lines or facilities which allow electronic voice signals to pass
through the same and ultimately to the called party's number. It is akin to
electricity which, though intangible property, may nevertheless be
appropriated and can be the object of theft. The use of respondent PLDT's
telephone network, lines, or facilities over a period of time for consideration
is the business that it provides to its customers, which enables the latter to
send various messages to intended recipients. Such use over a period of
time is akin to merchandise which has value and, therefore, can be
appropriated by another. According to respondent PLDT, this is what actually
happened when petitioner Laurel and the other accused below conducted
illegal ISR operations. 34
The petition is meritorious.
The issues for resolution are as follows: (a) whether or not the petition
for certiorari is the proper remedy of the petitioner in the Court of Appeals;
(b) whether or not international telephone calls using Bay Super Orient Cards
through the telecommunication services provided by PLDT for such calls, or,
in short, PLDT's business of providing said telecommunication services, are
proper subjects of theft under Article 308 of the Revised Penal Code; and (c)
whether or not the trial court committed grave abuse of discretion
amounting to excess or lack of jurisdiction in denying the motion of the
petitioner to quash the amended information. IaHAcT

On the issue of whether or not the petition for certiorari instituted by

the petitioner in the CA is proper, the general rule is that a petition for
certiorari under Rule 65 of the Rules of Court, as amended, to nullify an
order denying a motion to quash the Information is inappropriate because
the aggrieved party has a remedy of appeal in the ordinary course of law.
Appeal and certiorari are mutually exclusive of each other. The remedy of
the aggrieved party is to continue with the case in due course and, when an
unfavorable judgment is rendered, assail the order and the decision on
appeal. However, if the trial court issues the order denying the motion to
quash the Amended Information with grave abuse of discretion amounting to
excess or lack of jurisdiction, or if such order is patently erroneous, or null
and void for being contrary to the Constitution, and the remedy of appeal
would not afford adequate and expeditious relief, the accused may resort to
the extraordinary remedy of certiorari. 35 A special civil action for certiorari
is also available where there are special circumstances clearly
demonstrating the inadequacy of an appeal. As this Court held in Bristol
Myers Squibb (Phils.), Inc. v. Viloria: 36
Nonetheless, the settled rule is that a writ of certiorari may be
granted in cases where, despite availability of appeal after trial, there
is at least a prima facie showing on the face of the petition and its
annexes that: (a) the trial court issued the order with grave abuse of
discretion amounting to lack of or in excess of jurisdiction; (b) appeal
would not prove to be a speedy and adequate remedy; (c) where the
order is a patent nullity; (d) the decision in the present case will
arrest future litigations; and (e) for certain considerations such as
public welfare and public policy. 37
In his petition for certiorari in the CA, petitioner averred that the trial
court committed grave abuse of its discretion amounting to excess or lack of
jurisdiction when it denied his motion to quash the Amended Information
despite his claim that the material allegations in the Amended Information
do not charge theft under Article 308 of the Revised Penal Code, or any
offense for that matter. By so doing, the trial court deprived him of his
constitutional right to be informed of the nature of the charge against him.
He further averred that the order of the trial court is contrary to the
constitution and is, thus, null and void. He insists that he should not be
compelled to undergo the rigors and tribulations of a protracted trial and
incur expenses to defend himself against a non-existent charge.
Petitioner is correct.
An information or complaint must state explicitly and directly every act
or omission constituting an offense 38 and must allege facts establishing
conduct that a penal statute makes criminal; 39 and describes the property
which is the subject of theft to advise the accused with reasonable certainty
of the accusation he is called upon to meet at the trial and to enable him to
rely on the judgment thereunder of a subsequent prosecution for the same
offense. 40 It must show, on its face, that if the alleged facts are true, an
offense has been committed. The rule is rooted on the constitutional right of
the accused to be informed of the nature of the crime or cause of the
accusation against him. He cannot be convicted of an offense even if proven
unless it is alleged or necessarily included in the Information filed against
him.
As a general prerequisite, a motion to quash on the ground that the
Information does not constitute the offense charged, or any offense for that
matter, should be resolved on the basis of said allegations whose truth and
veracity are hypothetically committed; 41 and on additional facts admitted or
not denied by the prosecution. 42 If the facts alleged in the Information do
not constitute an offense, the complaint or information should be quashed
by the court. 43
We have reviewed the Amended Information and find that, as
mentioned by the petitioner, it does not contain material allegations
charging the petitioner of theft of personal property under Article 308 of the
Revised Penal Code. It, thus, behooved the trial court to quash the Amended
Information. The Order of the trial court denying the motion of the petitioner
to quash the Amended Information is a patent nullity.
On the second issue, we find and so hold that the international
telephone calls placed by Bay Super Orient Card holders, the
telecommunication services provided by PLDT and its business of providing
said services are not personal properties under Article 308 of the Revised
Penal Code. The construction by the respondents of Article 308 of the said
Code to include, within its coverage, the aforesaid international telephone
calls, telecommunication services and business is contrary to the letter and
intent of the law.
SDHITE

The rule is that, penal laws are to be construed strictly. Such rule is
founded on the tenderness of the law for the rights of individuals and on the
plain principle that the power of punishment is vested in Congress, not in the
judicial department. It is Congress, not the Court, which is to define a crime,
and ordain its punishment. 44 Due respect for the prerogative of Congress in
defining crimes/felonies constrains the Court to refrain from a broad
interpretation of penal laws where a "narrow interpretation" is appropriate.
The Court must take heed to language, legislative history and purpose, in
order to strictly determine the wrath and breath of the conduct the law
forbids. 45 However, when the congressional purpose is unclear, the court
must apply the rule of lenity, that is, ambiguity concerning the ambit of
criminal statutes should be resolved in favor of lenity. 46
Penal statutes may not be enlarged by implication or intent beyond the
fair meaning of the language used; and may not be held to include offenses
other than those which are clearly described, notwithstanding that the Court
may think that Congress should have made them more comprehensive. 47
Words and phrases in a statute are to be construed according to their
common meaning and accepted usage.
As Chief Justice John Marshall declared, "it would be dangerous, indeed,
to carry the principle that a case which is within reason or mischief of a
statute is within its provision, so far as to punish a crime not enumerated in
the statute because it is of equal atrocity, or of kindred character with those
which are enumerated. 48 When interpreting a criminal statute that does not
explicitly reach the conduct in question, the Court should not base an
expansive reading on inferences from subjective and variable understanding.
49

Article 308 of the Revised Penal Code defines theft as follows:

Art. 308. Â Who are liable for theft. — Theft is committed by
any person who, with intent to gain but without violence, against or
intimidation of persons nor force upon things, shall take personal
property of another without the latter's consent.
The provision was taken from Article 530 of the Spanish Penal Code
which reads:
1.  Los que con ánimo de lucrarse, y sin violencia o
intimidación en las personas ni fuerza en las cosas, toman las cosas
muebles ajenas sin la voluntad de su dueño. 50
 For one to be guilty of theft, the accused must have an intent to steal
(animus furandi) personal property, meaning the intent to deprive another of
his ownership/lawful possession of personal property which intent is apart
from and concurrently with the general criminal intent which is an essential
element of a felony of dolo (dolus malus).
An information or complaint for simple theft must allege the following
elements: (a) the taking of personal property; (b) the said property belongs
to another; (c) the taking be done with intent to gain; and (d) the taking be
accomplished without the use of violence or intimidation of person/s or force
upon things. 51
One is apt to conclude that "personal property" standing alone, covers
both tangible and intangible properties and are subject of theft under the
Revised Penal Code. But the words "Personal property" under the Revised
Penal Code must be considered in tandem with the word "take" in the law.
The statutory definition of "taking" and movable property indicates that,
clearly, not all personal properties may be the proper subjects of theft. The
general rule is that, only movable properties which have physical or material
existence and susceptible of occupation by another are proper objects of
theft. 52 As explained by Cuelo Callon: "Cosa juridicamente es toda sustancia
corporal, material, susceptible de ser aprehendida que tenga un valor
cualquiera." 53
According to Cuello Callon, in the context of the Penal Code, only those
movable properties which can be taken and carried from the place they are
found are proper subjects of theft. Intangible properties such as rights and
ideas are not subject of theft because the same cannot be "taken" from the
place it is found and is occupied or appropriated. IHcSCA

Solamente las cosas muebles y corporales pueden ser objeto de

hurto. La sustracción de cosas inmuebles y la cosas incorporales (v.
gr., los derechos, las ideas) no puede integrar este delito, pues no es
posible asirlas, tomarlas, para conseguir su apropiación. El Codigo
emplea la expresión "cosas mueble" en el sentido de cosa que es
susceptible de ser llevada del lugar donde se encuentra, como
dinero, joyas, ropas, etcétera, asi que su concepto no coincide por
completo con el formulado por el Codigo civil (arts. 335 y 336). 54
Thus, movable properties under Article 308 of the Revised Penal Code
should be distinguished from the rights or interests to which they relate. A
naked right existing merely in contemplation of law, although it may be very
valuable to the person who is entitled to exercise it, is not the subject of
theft or larceny. 55 Such rights or interests are intangible and cannot be
"taken" by another. Thus, right to produce oil, good will or an interest in
business, or the right to engage in business, credit or franchise are
properties. So is the credit line represented by a credit card. However, they
are not proper subjects of theft or larceny because they are without form or
substance, the mere "breath" of the Congress. On the other hand, goods,
wares and merchandise of businessmen and credit cards issued to them are
movable properties with physical and material existence and may be taken
by another; hence, proper subjects of theft.
 There is "taking" of personal property, and theft is consummated when
the offender unlawfully acquires possession of personal property even if for a
short time; or if such property is under the dominion and control of the thief.
The taker, at some particular amount, must have obtained complete and
absolute possession and control of the property adverse to the rights of the
owner or the lawful possessor thereof. 56 It is not necessary that the property
be actually carried away out of the physical possession of the lawful
possessor or that he should have made his escape with it. 57 Neither
asportation nor actual manual possession of property is required.
Constructive possession of the thief of the property is enough. 58
The essence of the element is the taking of a thing out of the
possession of the owner without his privity and consent and without animus
revertendi. 59
Taking may be by the offender's own hands, by his use of innocent
persons without any felonious intent, as well as any mechanical device, such
as an access device or card, or any agency, animate or inanimate, with
intent to gain. Intent to gain includes the unlawful taking of personal
property for the purpose of deriving utility, satisfaction, enjoyment and
pleasure. 60
We agree with the contention of the respondents that intangible
properties such as electrical energy and gas are proper subjects of theft. The
reason for this is that, as explained by this Court in United States v. Carlos 61
a n d United States v. Tambunting , 62 based on decisions of the Supreme
Court of Spain and of the courts in England and the United States of America,
gas or electricity are capable of appropriation by another other than the
owner. Gas and electrical energy may be taken, carried away and
appropriated. In People v. Menagas, 63 the Illinois State Supreme Court
declared that electricity, like gas, may be seen and felt. Electricity, the same
as gas, is a valuable article of merchandise, bought and sold like other
personal property and is capable of appropriation by another. It is a
valuable article of merchandise, bought and sold like other personal
property, susceptible of being severed from a mass or larger quantity
and of being transported from place to place. Electrical energy may,
likewise, be taken and carried away. It is a valuable commodity, bought and
sold like other personal property. It may be transported from place to
place. There is nothing in the nature of gas used for illuminating purposes
which renders it incapable of being feloniously taken and carried away. AaECSH

In People ex rel Brush Electric Illuminating Co. v. Wemple , 64 the Court

of Appeals of New York held that electric energy is manufactured and sold in
determinate quantities at a fixed price, precisely as are coal, kerosene oil,
and gas. It may be conveyed to the premises of the consumer, stored in cells
of different capacity known as an accumulator; or it may be sent through a
wire, just as gas or oil may be transported either in a close tank or forced
through a pipe. Having reached the premises of the consumer, it may be
used in any way he may desire, being, like illuminating gas, capable of being
transformed either into heat, light, or power, at the option of the purchaser.
I n Woods v. People , 65 the Supreme Court of Illinois declared that there is
nothing in the nature of gas used for illuminating purposes which renders it
incapable of being feloniously taken and carried away. It is a valuable
article of merchandise, bought and sold like other personal
property, susceptible of being severed from a mass or larger
quantity and of being transported from place to place.
Gas and electrical energy should not be equated with business or
services provided by business entrepreneurs to the public. Business does not
have an exact definition. Business is referred as that which occupies the
time, attention and labor of men for the purpose of livelihood or profit. It
embraces everything that which a person can be employed. 66 Business may
also mean employment, occupation or profession. Business is also defined as
a commercial activity for gain benefit or advantage. 67 Business, like
services in business, although are properties, are not proper subjects of theft
under the Revised Penal Code because the same cannot be "taken" or
"occupied." If it were otherwise, as claimed by the respondents, there would
be no juridical difference between the taking of the business of a person or
the services provided by him for gain, vis-Ã -vis , the taking of goods, wares
or merchandise, or equipment comprising his business. 68 If it was its
intention to include "business" as personal property under Article 308 of the
Revised Penal Code, the Philippine Legislature should have spoken in
language that is clear and definite: that business is personal property under
Article 308 of the Revised Penal Code. 69
We agree with the contention of the petitioner that, as gleaned from
the material averments of the Amended Information, he is charged of
"stealing the international long distance calls belonging to PLDT" and the use
thereof, through the ISR. Contrary to the claims of the OSG and respondent
PLDT, the petitioner is not charged of stealing P20,370,651.95 from said
respondent. Said amount of P20,370,651.95 alleged in the Amended
Information is the aggregate amount of access, transmission or termination
charges which the PLDT expected from the international long distance calls
of the callers with the use of Baynet Super Orient Cards sold by Baynet Co.
Ltd.
In defining theft, under Article 308 of the Revised Penal Code, as the
taking of personal property without the consent of the owner thereof, the
Philippine legislature could not have contemplated the human voice which is
converted into electronic impulses or electrical current which are transmitted
to the party called through the PSTN of respondent PLDT and the ISR of
Baynet Card Ltd. within its coverage. When the Revised Penal Code was
approved, on December 8, 1930, international telephone calls and the
transmission and routing of electronic voice signals or impulses emanating
from said calls, through the PSTN, IPL and ISR, were still non-existent. Case
law is that, where a legislative history fails to evidence congressional
awareness of the scope of the statute claimed by the respondents, a narrow
interpretation of the law is more consistent with the usual approach to the
construction of the statute. Penal responsibility cannot be extended beyond
the fair scope of the statutory mandate. 70
Respondent PLDT does not acquire possession, much less, ownership
of the voices of the telephone callers or of the electronic voice signals or
current emanating from said calls. The human voice and the electronic voice
signals or current caused thereby are intangible and not susceptible of
possession, occupation or appropriation by the respondent PLDT or even the
petitioner, for that matter. PLDT merely transmits the electronic voice
signals through its facilities and equipment. Baynet Card Ltd., through its
operator, merely intercepts, reroutes the calls and passes them to its toll
center. Indeed, the parties called receive the telephone calls from Japan.
In this modern age of technology, telecommunications systems have
become so tightly merged with computer systems that it is difficult to know
where one starts and the other finishes. The telephone set is highly
computerized and allows computers to communicate across long distances.
71 The instrumentality at issue in this case is not merely a telephone but a

telephone inexplicably linked to a computerized communications system

with the use of Baynet Cards sold by the Baynet Card Ltd. The corporation
uses computers, modems and software, among others, for its ISR. 72
The conduct complained of by respondent PLDT is reminiscent of
"phreaking" (a slang term for the action of making a telephone system to do
something that it normally should not allow by "making the phone company
bend over and grab its ankles"). A "phreaker" is one who engages in the act
of manipulating phones and illegally markets telephone services. 73 Unless
the phone company replaces all its hardware, phreaking would be impossible
to stop. The phone companies in North America were impelled to replace all
their hardware and adopted full digital switching system known as the
Common Channel Inter Office Signaling. Phreaking occurred only during the
1960's and 1970's, decades after the Revised Penal Code took effect. aHTEIA

The petitioner is not charged, under the Amended Information, for theft
of telecommunication or telephone services offered by PLDT. Even if he is,
the term "personal property" under Article 308 of the Revised Penal Code
cannot be interpreted beyond its seams so as to include "telecommunication
or telephone services" or computer services for that matter. The word
"service" has a variety of meanings dependent upon the context, or the
sense in which it is used; and, in some instances, it may include a sale. For
instance, the sale of food by restaurants is usually referred to as "service,"
although an actual sale is involved. 74 It may also mean the duty or labor to
be rendered by one person to another; performance of labor for the benefit
of another. 75 In the case of PLDT, it is to render local and international
telecommunications services and such other services as authorized by the
CPCA issued by the NTC. Even at common law, neither time nor services may
be taken and occupied or appropriated. 76 A service is generally not
considered property and a theft of service would not, therefore, constitute
theft since there can be no caption or asportation. 77 Neither is the
unauthorized use of the equipment and facilities of PLDT by the petitioner
theft under the aforequoted provision of the Revised Penal Code. 78
If it was the intent of the Philippine Legislature, in 1930, to include
services to be the subject of theft, it should have incorporated the same in
Article 308 of the Revised Penal Code. The Legislature did not. In fact, the
Revised Penal Code does not even contain a definition of services.
If taking of telecommunication services or the business of a person, is
to be proscribed, it must be by special statute 79 or an amendment of the
Revised Penal Code. Several states in the United States, such as New York,
New Jersey, California and Virginia, realized that their criminal statutes did
not contain any provisions penalizing the theft of services and passed laws
defining and penalizing theft of telephone and computer services. The
Pennsylvania Criminal Statute now penalizes theft of services, thus:
(a) Â Acquisition of services. —
(1) Â A person is guilty of theft if he intentionally obtains
services for himself or for another which he knows are available only
for compensation, by deception or threat, by altering or tampering
with the public utility meter or measuring device by which such
services are delivered or by causing or permitting such altering or
tampering, by making or maintaining any unauthorized connection,
whether physically, electrically or inductively, to a distribution or
transmission line, by attaching or maintaining the attachment of any
unauthorized device to any cable, wire or other component of an
electric, telephone or cable television system or to a television
receiving set connected to a cable television system, by making or
maintaining any unauthorized modification or alteration to any device
installed by a cable television system, or by false token or other trick
or artifice to avoid payment for the service.
In the State of Illinois in the United States of America, theft of labor or
services or use of property is penalized:
(a) Â A person commits theft when he obtains the temporary
use of property, labor or services of another which are available only
for hire, by means of threat or deception or knowing that such use is
without the consent of the person providing the property, labor or
services.
In 1980, the drafters of the Model Penal Code in the United States of
America arrived at the conclusion that labor and services, including
professional services, have not been included within the traditional scope of
the term "property" in ordinary theft statutes. Hence, they decided to
incorporate in the Code Section 223.7, which defines and penalizes theft of
services, thus:
(1) Â A person is guilty of theft if he purposely obtains
services which he knows are available only for compensation, by
deception or threat, or by false token or other means to avoid
payment for the service. "Services" include labor, professional
service, transportation, telephone or other public service,
accommodation in hotels, restaurants or elsewhere, admission to
exhibitions, use of vehicles or other movable property. Where
compensation for service is ordinarily paid immediately upon the
rendering of such service, as in the case of hotels and restaurants,
refusal to pay or absconding without payment or offer to pay gives
rise to a presumption that the service was obtained by deception as
to intention to pay; (2) A person commits theft if, having control over
the disposition of services of others, to which he is not entitled, he
 knowingly diverts such services to his own benefit or to the benefit of
another not entitled thereto.
Interestingly, after the State Supreme Court of Virginia promulgated its
decision in Lund v. Commonwealth, 80 declaring that neither time nor
services may be taken and carried away and are not proper subjects of
larceny, the General Assembly of Virginia enacted Code No. 18-2-98 which
reads:
Computer time or services or data processing services or
information or data stored in connection therewith is hereby defined
to be property which may be the subject of larceny under § § 18.2-
95 or 18.2-96, or embezzlement under § 18.2-111, or false pretenses
under § 18.2-178. TAIEcS

In the State of Alabama, Section 13A-8-10(a)(1) of the Penal Code of

Alabama of 1975 penalizes theft of services:
"A person commits the crime of theft of services if: (a) He
intentionally obtains services known by him to be available only for
compensation by deception, threat, false token or other means to
avoid payment for the services . . . "
In the Philippines, Congress has not amended the Revised Penal Code
to include theft of services or theft of business as felonies. Instead, it
approved a law, Republic Act No. 8484, otherwise known as the Access
Devices Regulation Act of 1998, on February 11, 1998. Under the law, an
access device means any card, plate, code, account number, electronic
serial number, personal identification number and other
telecommunication services, equipment or instrumentalities-identifier or
other means of account access that can be used to obtain money, goods,
services or any other thing of value or to initiate a transfer of funds other
than a transfer originated solely by paper instrument. Among the prohibited
acts enumerated in Section 9 of the law are the acts of obtaining money or
anything of value through the use of an access device, with intent to defraud
or intent to gain and fleeing thereafter; and of effecting transactions with
one or more access devices issued to another person or persons to receive
payment or any other thing of value. Under Section 11 of the law, conspiracy
to commit access devices fraud is a crime. However, the petitioner is not
charged of violation of R.A. 8484.
Significantly, a prosecution under the law shall be without prejudice to
any liability for violation of any provisions of the Revised Penal Code
inclusive of theft under Rule 308 of the Revised Penal Code and estafa under
Article 315 of the Revised Penal Code. Thus, if an individual steals a credit
card and uses the same to obtain services, he is liable of the following: theft
of the credit card under Article 308 of the Revised Penal Code; violation of
Republic Act No. 8484; and estafa under Article 315(2)(a) of the Revised
Penal Code with the service provider as the private complainant. The
petitioner is not charged of estafa before the RTC in the Amended
Information.
Section 33 of Republic Act No. 8792, Electronic Commerce Act of 2000
provides:
 Sec. 33. Â Penalties. — The following Acts shall be penalized
by fine and/or imprisonment, as follows:
a) Â Hacking or cracking which refers to unauthorized access
into or interference in a computer system/server or information and
communication system; or any access in order to corrupt, alter, steal,
or destroy using a computer or other similar information and
communication devices, without the knowledge and consent of the
owner of the computer or information and communications system,
including the introduction of computer viruses and the like, resulting
on the corruption, destruction, alteration, theft or loss of electronic
data messages or electronic documents shall be punished by a
minimum fine of One hundred thousand pesos (P100,000.00) and a
maximum commensurate to the damage incurred and a mandatory
imprisonment of six (6) months to three (3) years.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The
assailed Orders of the Regional Trial Court and the Decision of the Court of
Appeals are REVERSED and SET ASIDE. The Regional Trial Court is directed
to issue an order granting the motion of the petitioner to quash the
Amended Information.
SO ORDERED.
Ynares-Santiago and Austria-Martinez, JJ., concur.
Panganiban, C.J., took no part. Former counsel of a party.
Chico-Nazario, J., is on leave.
Â
Footnotes

1. Â Penned by Associate Justice Bienvenido L. Reyes, with Associate Justices

Roberto A. Barrios and Edgardo F. Sundiam, concurring.

2. Â AN ACT FURTHER AMENDING ACT NO. 3436, AS AMENDED, ". . .

CONSOLIDATING THE TERMS AND CONDITIONS OF THE FRANCHISE GRANTED
TO [PLDT], AND EXTENDING THE SAID FRANCHISE BY TWENTY-FIVE (25)
YEARS FROM THE EXPIRATION THEREOF . . . ."

3. Â Rollo , pp. 129-130.

4. Â Id. at 131.

5. Â Id. at 131, 137.

6. Â Id.

7. Â Id. at 138.

8. Â Id. at 134.

9. Â Id. at 140.

10. Â Id. at 142-146.

11. Â Rollo , pp. 243-246.

12. Â NOW, THEREFORE, I FERDINAND E. MARCOS, President of the Philippines,

by virtue of the powers vested in me by the Constitution a Commander-in-
Chief of all the Armed Forces of the Philippines, and pursuant to Proclamation
No. 1081 dated September 21, 1972, and General Order No. 1 dated
September 22, 1972, as amended, do hereby order and decree that any
person who installs any water, electrical or telephone connection without
previous authority from the Metropolitan Waterworks and Sewerage System,
the Manila Electric Company or the Philippine Long Distance Telephone
Company, as the case may be; tampers and/or uses tampered water or
electrical meters or jumpers or other devices whereby water or electricity is
stolen; steals or pilfers water and/or electric meters or water, electric and/or
telephone wires; knowingly possesses stolen or pilfered water and/or
electrical meters as well as stolen or pilfered water, electrical and/or
telephone wires, shall, upon conviction, be punished by prision correccional
in its minimum period or a fine ranging from two thousand to six thousand
pesos, or both. If the violation is committed with the connivance or
permission of an employee or officer of the Metropolitan Waterworks and
Sewerage System, or the Manila Electric Company, or the Philippine Long
Distance Telephone Company, such employee or officer shall, upon
conviction, be punished by a penalty one degree lower than prision
correccional in its minimum period and forthwith be dismissed and
perpetually disqualified from employment in any public or private utility or
service company.

13. Â Rollo , pp. 57-58. (Underscoring supplied)

14. Â Id. at 67-76.

15. Â Id. at 69. (Emphasis supplied)

16. Â Id. at 77-80.

17. Â Id. at 81-86.

18. Â 31 Phil. 494 (1915).

19. Â Rollo , pp. 87-94.

20. Â 44 Phil. 933, 935 (1922).

21. Â CA rollo, p. 6.

22. Â Id. at 9-11.

23. Â Id.

24. Â Id.

25. Â Resolution No. 149, Series of 1999 dated April 16, 1999 (I.S. No. 96-3884),
rollo, pp. 95-97.

26. Â Id.

27. Â Id. at 32-47.

28. Â 21 Phil. 553 (1911).

29. Â Supra note 20, at 935.

30. Â Rollo , pp. 18-19.

31. Â Id. at 689.

32. Â Id. at 691.

33. Â Id. at 669-670.

34. Â Rollo , p. 670.

35. Â Madarang v. Court of Appeals, G.R. No. 143044, July 14, 2005, 463 SCRA
318, 327 (2005).

36. Â G.R. No. 148156, September 27, 2004, 439 SCRA 202 (2000).

37. Â Id. at 211.

38. Â Section 9, Rule 110 of the Revised Rules of Criminal Procedure.

39. Â People v. Weg , 450 N.Y.S.2d 957 (1982).

40. Â Clines v. Commonwealth, 298 S.W. 1107 (1927).

41. Â Santiago v. Garchitorena , G.R. No. 109266, December 2, 1993, 228 SCRA
214.

42. Â Garcia v. Court of Appeals, 334 Phil. 621, 634 (1997); People v. Navarro ,
75 Phil. 516, 518 (1945).

43. Â Section 3(a), Rule 117 of the 2000 Rules of Criminal Procedure.

44. Â United States v. Wiltberger , 18 U.S. 76 (1820).

45. Â Dowling v. United States , 473 U.S. 207 (1985).

46. Â Liparota v. United States , 105 S. Ct. 2084 (1985).

47. Â Kelley v. State , 119 N.E.2d 322 (1954); State v. McGraw, 480 N.E.2d 552
(1985).

48. Â United States v. Wiltberger, supra note 44.

49. Â Dowling v. United States, supra note 45.

50. Â Viada, CODIGO PENAL REFORMADO DE 1870, CONCORDADO Y

COMENTADO, 219. The felony has the following elements:

1) Apoderamiento de una cosa mueble; (2) Que la cosa mueble sea ajena;
(3) Que el apoderamiento se verifique con intención de lucro; (4) Que se
tome la cosa sin la voluntad de su dueño; (5) Que se realice el
apoderamiento de la cosa sin violencia intimidación en las personas ni
fuerza en las cosas (Viada, 220-221).
51. Â People v. Sison , 379 Phil. 363, 384 (2000); People v. Bustinera , G.R. No.
148233, June 8, 2004, 431 SCRA 284, 291.

52. Â Cuello Callon, Derecho Penal, Tomo II, p. 724.

53. Â Id.

54. Â See note 52, p. 725. (Underscoring supplied)

55. Â 36 C.J.S. 737.

56. Â People v. Ashworth, 222 N.Y.S. 24 (1927).

57. Â People v. Salvilla , G.R. No. 86163, April 26, 1990, 184 SCRA 671, 677
(1990).

58. Â Harris v. State, 14 S.W. 390 (1890).

59. Â Woods v. People , 78 N.E. 607 (1906).

60. Â Villacorta v. Insurance Commission, G.R. No. 54171, October 28, 1980,
100 SCRA 467.

61. Â Supra note 28.

62. Â 41 Phil. 364 (1921).

63. Â 11 N.E.2d 403 (1937).

64. Â 29 N.E. 808 (1892). (Emphasis supplied)

65. Â Supra note 59 (Emphasis supplied).

66. Â Doggett v. Burnet , 65 F.2d 191 (1933).

67. Â Black's Law Dictionary, 5th ed., p. 179; Union League Club v. Johnson, 108
P.2d 487, 490 (1940).

68. Â United States v. McCraken , 19 C.M.R. 876 (1955).

69. Â People v. Tansey, 593 N.Y.S. 2d 426 (1992).

70. Â People v. Case , 42 N.Y.S. 2d 101.

71. Â Commonwealth v. Gerulis , 616 A.2d 686 (1992).

72. Â Rollo , p. 138.

73. Â Commonwealth v. Gerulis, supra note 71.

74. Â Central Power and Light Co. v. State, 165 S.W. 2d 920 (1942).

75. Â Black's Law Dictionary, p. 1227.

76. Â Lund v. Commonwealth, 232 S.E.2d 745 (1977); 50 Am. Jur. 2d Larceny, p.
83.
77. Â Imbau, Thomson, Moenssens, Criminal Law, Second Edition, p. 6247, 2
Wharton Criminal Law, Prodded, § 604:369.

78. Â Id. at 746; Commonwealth v. Rivera , 583 N.E.2d 867 (1991).

79. Â People v. Tansey, supra note 69.

80. Â See note 76.