2010 CRIMINAL PROCEDURE CASES

Case Title Page

SORIANO, vs. PEOPLE OF THE PHILIPPINES (G.R. No. 162336 - February 1, 2010) 2

PEOPLE OF THE PHILIPPINES vs. VILLAMIN (G.R. No. 175590 - February 9, 2010) 11

SADULAGA vs SANDIGANBAYAN (GR no. 184537 - April 23, 2010) 20

KALALO vs OFFICE OF THE OMBUDSMAN (G.R. No. 158189 - April 23, 2010) 27

BONIFACIO vs. RTC OF MAKATI (G.R. No. 184800 - May 5, 2010) 33

BORLONGAN, JR vs. PEÑA (G.R. No. 14359 - May 5, 2010) 39

PEOPLE OF THE PHILIPPINES vs NOQUE G.R. No. 175319 - January 15, 2010) 51

LEE vs KBC BANK N.V. (G.R. No. 164673 - January 15, 2010)                58

CABRAL vs UY (G.R. No. 174584 - January 20, 2010) 69

TAMARGO vs AWINGAN (G.R. No.  177727 - January 19, 2010) 72

CACAO vs PEOPLE OF THE PHILIPPINES (G.R. No. 180870 - January 22, 2010) 79

PEOPLE OF THE PHILIPPINES vs. MORALES (G.R. No. 172873 - March 19, 2010) 88

PEOPLE OF THE PHILIPPINES vs. HABANA (G.R. No. 188900 - March 5, 2010) 99

ROMUALDEZ vs SANDIGANBAYAN (G.R. No. 161602 - July 13, 2010) 103

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HILARIO P. SORIANO, vs. PEOPLE OF THE PHILIPPINES, BANGKO SENTRAL NG PILIPINAS (BSP), PHILIPPINE DEPOSIT INSURANCE CORPORATION (PDIC), PUBLIC PROSECUTOR ANTONIO C.BUAN, and STATE PROSECUTOR ALBERTO R. FONACIER,

G.R. No. 162336               February 1, 2010

A bank officer violates the DOSRI2 law when he acquires bank funds for his personal benefit, even if such acquisition was facilitated by a fraudulent loan application. Directors, officers, stockholders, and their related interests cannot be allowed to interpose the fraudulent nature of the loan as a defense to escape culpability for their circumvention of Section 83 of Republic Act (RA) No. 337.3

Before us is a Petition for Review on Certiorari4 under Rule 45 of the Rules of Court, assailing the September 26, 2003 Decision5 and the February 5, 2004 Resolution6 of the Court of Appeals (CA) in CA-G.R. SP No. 67657. The challenged Decision disposed as follows:

WHEREFORE, premises considered, the instant petition for certiorari is hereby DENIED.7

Factual Antecedents

Sometime in 2000, the Office of Special Investigation (OSI) of the Bangko Sentral ng Pilipinas (BSP), through its officers,8 transmitted a letter9 dated March 27, 2000 to Jovencito Zuño, Chief State Prosecutor of the Department of Justice (DOJ). The letter attached as annexes five affidavits,10 which would allegedly serve as bases for filing criminal charges for Estafa thru Falsification of Commercial Documents, in relation to Presidential Decree (PD) No. 1689,11 and for Violation of Section 83 of RA 337, as amended by PD 1795,12 against, inter alia, petitioner herein Hilario P. Soriano. These five affidavits, along with other documents, stated that spouses Enrico and Amalia Carlos appeared to have an outstanding loan of P8 million with the Rural Bank of San Miguel (Bulacan), Inc. (RBSM), but had never applied for nor received such loan; that it was petitioner, who was then president of RBSM, who had ordered, facilitated, and received the proceeds of the loan; and that the P8 million loan had never been authorized by RBSM's Board of

Directors and no report thereof had ever been submitted to the Department of Rural Banks, Supervision and Examination Sector of the BSP. The letter of the OSI, which was not subscribed under oath, ended with a request that a preliminary investigation be conducted and the corresponding criminal charges be filed against petitioner at his last known address.

Acting on the letter-request and its annexes, State Prosecutor Albert R. Fonacier proceeded with the preliminary investigation. He issued a subpoena with the witnesses’ affidavits and supporting documents attached, and required petitioner to file his counter-affidavit. In due course, the investigating officer issued a Resolution finding probable cause and correspondingly filed two separate informations against petitioner before the Regional Trial Court (RTC) of Malolos, Bulacan.13

The first Information,14 dated November 14, 2000 and docketed as Criminal Case No. 237-M-2001, was for estafa through falsification of commercial documents, under Article 315, paragraph 1(b), of the Revised Penal Code (RPC), in relation to Article 172 of the RPC and PD 1689. It basically alleged that petitioner and his co-accused, in abuse of the confidence reposed in them as RBSM officers, caused the falsification of a number of loan documents, making it appear that one Enrico Carlos filled up the same, and thereby succeeded in securing a loan and converting the loan proceeds for their personal gain and benefit.15 The information reads:

That in or about the month of April, 1997, and thereafter, in San Miguel, Bulacan, and within the jurisdiction of this Honorable Court, the said accused HILARIO P. SORIANO and ROSALINDA ILAGAN, as principals by direct participation, with unfaithfulness or abuse of confidence and taking advantage of their position as President of the Rural Bank of San Miguel (Bulacan), Inc. and Branch Manager of the Rural Bank of San Miguel – San Miguel Branch [sic], a duly organized banking institution under Philippine Laws, conspiring, confederating and mutually helping one another, did then and there, willfully and feloniously falsify loan documents consisting of undated loan application/information sheet, credit proposal dated April 14, 1997, credit proposal dated April 22, 1997, credit investigation report dated April 15, 1997, promissory note dated April 23, 1997, disclosure statement on loan/credit transaction dated April 23, 1997, and other related documents, by making it appear that one Enrico Carlos filled up the application/information

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sheet and filed the aforementioned loan documents when in truth and in fact Enrico Carlos did not participate in the execution of said loan documents and that by virtue of said falsification and with deceit and intent to cause damage, the accused succeeded in securing a loan in the amount of eight million pesos (PhP8,000,000.00) from the Rural Bank of San Miguel – San Ildefonso branch in the name of Enrico Carlos which amount of PhP8 million representing the loan proceeds the accused thereafter converted the same amount to their own personal gain and benefit, to the damage and prejudice of the Rural Bank of San Miguel – San Ildefonso branch, its creditors, the Bangko Sentral ng Pilipinas, and the Philippine Deposit Insurance Corporation.

CONTRARY TO LAW.16

The other Information17 dated November 10, 2000 and docketed as Criminal Case No. 238-M-2001, was for violation of Section 83 of RA 337, as amended by PD 1795. The said provision refers to the prohibition against the so-called DOSRI loans. The information alleged that, in his capacity as President of RBSM, petitioner indirectly secured an P8 million loan with RBSM, for his personal use and benefit, without the written consent and approval of the bank's Board of Directors, without entering the said transaction in the bank's records, and without transmitting a copy of the transaction to the supervising department of the bank. His ruse was facilitated by placing the loan in the name of an unsuspecting RBSM depositor, one Enrico Carlos.18 The information reads:

That in or about the month of April, 1997, and thereafter, and within the jurisdiction of this Honorable Court, the said accused, in his capacity as President of the Rural Bank of San Miguel (Bulacan), Inc., did then and there, willfully and feloniously indirectly borrow or secure a loan with the Rural Bank of San Miguel – San Ildefonso branch, a domestic rural banking institution created, organized and existing under Philippine laws, amounting to eight million pesos (PhP8,000,000.00), knowing fully well that the same has been done by him without the written consent and approval of the majority of the board of directors of the said bank, and which consent and approval the said accused deliberately failed to obtain and enter the same upon the records of said banking institution and to transmit a copy thereof to the supervising department of the said bank, as required by the General Banking Act, by using the name of one depositor Enrico Carlos of San Miguel, Bulacan, the latter having no knowledge of the said loan, and one in possession of the

said amount of eight million pesos (PhP8,000,000.00), accused converted the same to his own personal use and benefit, in flagrant violation of the said law.

CONTRARY TO LAW.19

Both cases were raffled to Branch 79 of the RTC of Malolos, Bulacan.20

On June 8, 2001, petitioner moved to quash21 these informations on two grounds: that the court had no jurisdiction over the offense charged, and that the facts charged do not constitute an offense.

On the first ground, petitioner argued that the letter transmitted by the BSP to the DOJ constituted the complaint and hence was defective for failure to comply with the mandatory requirements of Section 3(a), Rule 112 of the Rules of Court, such as the statement of address of petitioner and oath and subscription.22 Moreover, petitioner argued that the officers of OSI, who were the signatories to the "letter-complaint," were not authorized by the BSP Governor, much less by the Monetary Board, to file the complaint. According to petitioner, this alleged fatal oversight violated Section 18, pars. (c) and (d) of the New Central Bank Act (RA 7653).

On the second ground, petitioner contended that the commission of estafa under paragraph 1(b) of Article 315 of the RPC is inherently incompatible with the violation of DOSRI law (as set out in Section 8323 of RA 337, as amended by PD 1795),24 hence a person cannot be charged for both offenses. He argued that a violation of DOSRI law requires the offender to obtain a loan from his bank, without complying with procedural, reportorial, or ceiling requirements. On the other hand, estafa under par. 1(b), Article 315 of the RPC requires the offender to misappropriate or convert something that he holds in trust, or on commission, or for administration, or under any other obligation involving the duty to return the same.25

Essentially, the petitioner theorized that the characterization of possession is different in the two offenses. If petitioner acquired the loan as DOSRI, he owned the loaned money and therefore, cannot misappropriate or convert it as contemplated in the offense of estafa. Conversely, if petitioner committed estafa, then he merely held the money in trust for someone else and therefore, did not acquire a loan in violation of DOSRI rules.

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Ruling of the Regional Trial Court

In an Order26 dated August 8, 2001, the trial court denied petitioner's Motion to Quash for lack of merit. The lower court agreed with the prosecution that the assailed OSI letter was not the complaint-affidavit itself; thus, it need not comply with the requirements under the Rules of Court. The trial court held that the affidavits, which were attached to the OSI letter, comprised the complaint-affidavit in the case. Since these affidavits were duly subscribed and sworn to before a notary public, there was adequate compliance with the Rules. The trial court further held that the two offenses were separate and distinct violations, hence the prosecution of one did not pose a bar to the other.27

Petitioner’s Motion for Reconsideration was likewise denied in an Order dated September 5, 2001.28

Aggrieved, petitioner filed a Petition for Certiorari29 with the CA, reiterating his arguments before the trial court.

Ruling of the Court of Appeals

The CA denied the petition on both issues presented by petitioner.

On the first issue, the CA determined that the BSP letter, which petitioner characterized to be a fatally infirm complaint, was not actually a complaint, but a transmittal or cover letter only. This transmittal letter merely contained a summary of the affidavits which were attached to it. It did not contain any averment of personal knowledge of the events and transactions that constitute the elements of the offenses charged. Being a mere transmittal letter, it need not comply with the requirements of Section 3(a) of Rule 112 of the Rules of Court.30

The CA further determined that the five affidavits attached to the transmittal letter should be considered as the complaint-affidavits that charged petitioner with violation of Section 83 of RA 337 and for Estafa thru Falsification of Commercial Documents. These complaint-affidavits complied with the mandatory requirements set out in the Rules of Court – they were subscribed and sworn to before a notary public and subsequently certified by State Prosecutor Fonacier, who personally examined the affiants and was

convinced that the affiants fully understood their sworn statements.31

Anent the second ground, the CA found no merit in petitioner's argument that the violation of the DOSRI law and the commission of estafa thru falsification of commercial documents are inherently inconsistent with each other. It explained that the test in considering a motion to quash on the ground that the facts charged do not constitute an offense, is whether the facts alleged, when hypothetically admitted, constitute the elements of the offense charged. The appellate court held that this test was sufficiently met because the allegations in the assailed informations, when hypothetically admitted, clearly constitute the elements of Estafa thru Falsification of Commercial Documents and Violation of DOSRI law.32

Petitioner’s Motion for Reconsideration33 was likewise denied for lack of merit.

Hence, this petition.

Issues

Restated, petitioner raises the following issues34 for our consideration:

I Whether the complaint complied with the mandatory requirements provided under Section 3(a), Rule 112 of the Rules of Court and Section 18, paragraphs (c) and (d) of RA 7653.

II Whether a loan transaction within the ambit of the DOSRI law (violation of Section 83 of RA 337, as amended) could also be the subject of Estafa under Article 315 (1) (b) of the Revised Penal Code.

III Is a petition for certiorari under Rule 65 the proper remedy against an Order denying a Motion to Quash?

IV Whether petitioner is entitled to a writ of injunction.

Our Ruling

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The petition lacks merit.

First Issue:

Whether the complaint complied with the mandatory requirements provided under Section 3(a), Rule 112 of the Rules of Court and Section 18, paragraphs (c) and (d) of

Republic Act No. 7653

Petitioner moved to withdraw the first issue from the instant petition

On March 5, 2007, the Court noted35 petitioner's Manifestation and Motion for Partial Withdrawal of the Petition36 dated February 7, 2007. In the said motion, petitioner informed the Court of the promulgation of a Decision entitled Soriano v. Hon. Casanova,37 which also involved petitioner and similar BSP letters to the DOJ. According to petitioner, the said Decision allegedly ruled squarely on the nature of the BSP letters and the validity of the sworn affidavits attached thereto. For this reason, petitioner moved for the partial withdrawal of the instant petition insofar as it involved the issue of "whether or not a court can legally acquire jurisdiction over a complaint which failed to comply with the mandatory requirements provided under Section 3(a), Rule 112 of the Rules of Court and Section 18, paragraphs (c) and (d) of RA 7653".38

Given that the case had already been submitted for resolution of the Court when petitioner filed his latest motion, and that all respondents had presented their positions and arguments on the first issue, the Court deems it proper to rule on the same.

In Soriano v. Hon. Casanova, the Court held that the affidavits attached to the BSP transmittal letter complied with the mandatory requirements under the Rules of Court.

To be sure, the BSP letters involved in Soriano v. Hon. Casanova39 are not the same as the BSP letter involved in the instant case. However, the BSP letters in Soriano v. Hon. Casanova and the BSP letter subject of this case are similar in the sense that they are all signed by the OSI officers of the BSP, they were not sworn to by the said officers, they all contained summaries of their attached affidavits, and they all requested the conduct of a preliminary

investigation and the filing of corresponding criminal charges against petitioner Soriano. Thus, the principle of stare decisis dictates that the ruling in Soriano v. Hon. Casanova be applied in the instant case – once a question of law has been examined and decided, it should be deemed settled and closed to further argument.40

We held in Soriano v. Hon. Casanova, after a close scrutiny of the letters transmitted by the BSP to the DOJ, that these were not intended to be the complaint, as envisioned under the Rules. They did not contain averments of personal knowledge of the events and transactions constitutive of any offense. The letters merely transmitted for preliminary investigation the affidavits of people who had personal knowledge of the acts of petitioner. We ruled that these affidavits, not the letters transmitting them, initiated the preliminary investigation. Since these affidavits were subscribed under oath by the witnesses who executed them before a notary public, then there was substantial compliance with Section 3(a), Rule 112 of the Rules of Court.

Anent the contention that there was no authority from the BSP Governor or the Monetary Board to file a criminal case against Soriano, we held that the requirements of Section 18, paragraphs (c) and (d) of RA 7653 did not apply because the BSP did not institute the complaint but merely transmitted the affidavits of the complainants to the DOJ.

We further held that since the offenses for which Soriano was charged were public crimes, authority holds that it can be initiated by "any competent person" with personal knowledge of the acts committed by the offender. Thus, the witnesses who executed the affidavits clearly fell within the purview of "any competent person" who may institute the complaint for a public crime.

The ruling in Soriano v. Hon. Casanova has been adopted and elaborated upon in the recent case of Santos-Concio v. Department of Justice.41 Instead of a transmittal letter from the BSP, the Court in Santos-Concio was faced with an NBI-NCR Report, likewise with affidavits of witnesses as attachments. Ruling on the validity of the witnesses’ sworn affidavits as bases for a preliminary investigation, we held:

The Court is not unaware of the practice of incorporating all allegations in one document denominated as "complaint-affidavit."

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It does not pronounce strict adherence to only one approach, however, for there are cases where the extent of one’s personal knowledge may not cover the entire gamut of details material to the alleged offense. The private offended party or relative of the deceased may not even have witnessed the fatality, in which case the peace officer or law enforcer has to rely chiefly on affidavits of witnesses. The Rules do not in fact preclude the attachment of a referral or transmittal letter similar to that of the NBI-NCR. Thus, in Soriano v. Casanova, the Court held:

A close scrutiny of the letters transmitted by the BSP and PDIC to the DOJ shows that these were not intended to be the complaint envisioned under the Rules. It may be clearly inferred from the tenor of the letters that the officers merely intended to transmit the affidavits of the bank employees to the DOJ. Nowhere in the transmittal letters is there any averment on the part of the BSP and PDIC officers of personal knowledge of the events and transactions constitutive of the criminal violations alleged to have been made by the accused. In fact, the letters clearly stated that what the OSI of the BSP and the LIS of the PDIC did was to respectfully transmit to the DOJ for preliminary investigation the affidavits and personal knowledge of the acts of the petitioner. These affidavits were subscribed under oath by the witnesses who executed them before a notary public. Since the affidavits, not the letters transmitting them, were intended to initiate the preliminary investigation, we hold that Section 3(a), Rule 112 of the Rules of Court was substantially complied with.

Citing the ruling of this Court in Ebarle v. Sucaldito, the Court of Appeals correctly held that a complaint for purposes of preliminary investigation by the fiscal need not be filed by the offended party. The rule has been that, unless the offense subject thereof is one that cannot be prosecuted de oficio, the same may be filed, for preliminary investigation purposes, by any competent person. The crime of estafa is a public crime which can be initiated by "any competent person." The witnesses who executed the affidavits based on their personal knowledge of the acts committed by the petitioner fall within the purview of "any competent person" who may institute the complaint for a public crime. x x x (Emphasis and italics supplied)

A preliminary investigation can thus validly proceed on the basis of an affidavit of any competent person, without the referral document, like the NBI-NCR Report, having been sworn to by the

law enforcer as the nominal complainant. To require otherwise is a needless exercise. The cited case of Oporto, Jr. v. Judge Monserate does not appear to dent this proposition. After all, what is required is to reduce the evidence into affidavits, for while reports and even raw information may justify the initiation of an investigation, the preliminary investigation stage can be held only after sufficient evidence has been gathered and evaluated which may warrant the eventual prosecution of the case in court.42

Following the foregoing rulings in Soriano v. Hon. Casanova and Santos-Concio v. Department of Justice, we hold that the BSP letter, taken together with the affidavits attached thereto, comply with the requirements provided under Section 3(a), Rule 112 of the Rules of Court and Section 18, paragraphs (c) and (d) of RA 7653.

Second Issue:

Whether a loan transaction within the ambit of the DOSRI law (violation of Section 83 of RA 337, as amended) could be the subject of Estafa under Article 315 (1) (b) of the

Revised Penal Code

The second issue was raised by petitioner in the context of his Motion to Quash Information on the ground that the facts charged do not constitute an offense.43 It is settled that in considering a motion to quash on such ground, the test is "whether the facts alleged, if hypothetically admitted, would establish the essential elements of the offense charged as defined by law. The trial court may not consider a situation contrary to that set forth in the criminal complaint or information. Facts that constitute the defense of the petitioner[s] against the charge under the information must be proved by [him] during trial. Such facts or circumstances do not constitute proper grounds for a motion to quash the information on the ground that the material averments do not constitute the offense". 44

We have examined the two informations against petitioner and we find that they contain allegations which, if hypothetically admitted, would establish the essential elements of the crime of DOSRI violation and estafa thru falsification of commercial documents.

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In Criminal Case No. 238-M-2001 for violation of DOSRI rules, the information alleged that petitioner Soriano was the president of RBSM; that he was able to indirectly obtain a loan from RBSM by putting the loan in the name of depositor Enrico Carlos; and that he did this without complying with the requisite board approval, reportorial, and ceiling requirements.

In Criminal Case No. 237-M-2001 for estafa thru falsification of commercial documents, the information alleged that petitioner, by taking advantage of his position as president of RBSM, falsified various loan documents to make it appear that an Enrico Carlos secured a loan of P8 million from RBSM; that petitioner succeeded in obtaining the loan proceeds; that he later converted the loan proceeds to his own personal gain and benefit; and that his action caused damage and prejudice to RBSM, its creditors, the BSP, and the PDIC.

Significantly, this is not the first occasion that we adjudge the sufficiency of similarly worded informations. In Soriano v. People,45 involving the same petitioner in this case (but different transactions), we also reviewed the sufficiency of informations for DOSRI violation and estafa thru falsification of commercial documents, which were almost identical, mutatis mutandis, with the subject informations herein. We held in Soriano v. People that there is no basis for the quashal of the informations as "they contain material allegations charging Soriano with violation of DOSRI rules and estafa thru falsification of commercial documents".

Petitioner raises the theory that he could not possibly be held liable for estafa in concurrence with the charge for DOSRI violation. According to him, the DOSRI charge presupposes that he acquired a loan, which would make the loan proceeds his own money and which he could neither possibly misappropriate nor convert to the prejudice of another, as required by the statutory definition of estafa.46 On the other hand, if petitioner did not acquire any loan, there can be no DOSRI violation to speak of. Thus, petitioner posits that the two offenses cannot co-exist. This theory does not persuade us.

Petitioner’s theory is based on the false premises that the loan was extended to him by the bank in his own name, and that he became the owner of the loan proceeds. Both premises are wrong.

The bank money (amounting to P8 million) which came to the possession of petitioner was money held in trust or administration by him for the bank, in his

fiduciary capacity as the President of said bank.47 It is not accurate to say that petitioner became the owner of the P8 million because it was the proceeds of a loan. That would have been correct if the bank knowingly extended the loan to petitioner himself. But that is not the case here. According to the information for estafa, the loan was supposed to be for another person, a certain "Enrico Carlos"; petitioner, through falsification, made it appear that said "Enrico Carlos" applied for the loan when in fact he ("Enrico Carlos") did not. Through such fraudulent device, petitioner obtained the loan proceeds and converted the same. Under these circumstances, it cannot be said that petitioner became the legal owner of the P8 million. Thus, petitioner remained the bank’s fiduciary with respect to that money, which makes it capable of misappropriation or conversion in his hands.

The next question is whether there can also be, at the same time, a charge for DOSRI violation in such a situation wherein the accused bank officer did not secure a loan in his own name, but was alleged to have used the name of another person in order to indirectly secure a loan from the bank. We answer this in the affirmative. Section 83 of RA 337 reads:

Section 83. No director or officer of any banking institution shall, either directly or indirectly, for himself or as the representative or agent of others, borrow any of the deposits of funds of such bank, nor shall he become a guarantor, indorser, or surety for loans from such bank to others, or in any manner be an obligor for moneys borrowed from the bank or loaned by it, except with the written approval of the majority of the directors of the bank, excluding the director concerned. Any such approval shall be entered upon the records of the corporation and a copy of such entry shall be transmitted forthwith to the Superintendent of Banks. The office of any director or officer of a bank who violates the provisions of this section shall immediately become vacant and the director or officer shall be punished by imprisonment of not less than one year nor more than ten years and by a fine of not less than one thousand nor more than ten thousand pesos. x x x

The prohibition in Section 83 is broad enough to cover various modes of borrowing.[48] It covers loans by a bank director or

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officer (like herein petitioner) which are made either: (1) directly, (2) indirectly, (3) for himself, (4) or as the representative or agent of others. It applies even if the director or officer is a mere guarantor, indorser or surety for someone else's loan or is in any manner an obligor for money borrowed from the bank or loaned by it. The covered transactions are prohibited unless the approval, reportorial and ceiling requirements under Section 83 are complied with. The prohibition is intended to protect the public, especially the depositors,[49] from the overborrowing of bank funds by bank officers, directors, stockholders and related interests, as such overborrowing may lead to bank failures.[50] It has been said that "banking institutions are not created for the benefit of the directors [or officers]. While directors have great powers as directors, they have no special privileges as individuals. They cannot use the assets of the bank for their own benefit except as permitted by law. Stringent restrictions are placed about them so that when acting both for the bank and for one of themselves at the same time, they must keep within certain prescribed lines regarded by the legislature as essential to safety in the banking business".51

A direct borrowing is obviously one that is made in the name of the DOSRI himself or where the DOSRI is a named party, while an indirect borrowing includes one that is made by a third party, but the DOSRI has a stake in the transaction.52 The latter type – indirect borrowing – applies here. The information in Criminal Case 238-M-2001 alleges that petitioner "in his capacity as President of Rural Bank of San Miguel – San Ildefonso branch x x x indirectly borrow[ed] or secure[d] a loan with [RBSM] x x x knowing fully well that the same has been done by him without the written consent and approval of the majority of the board of directors x x x, and which consent and approval the said accused deliberately failed to obtain and enter the same upon the records of said banking institution and to transmit a copy thereof to the supervising department of the said bank x x x by using the name of one depositor Enrico Carlos x x x, the latter having no knowledge of the said loan, and once in possession of the said amount of eight million pesos (P8 million), [petitioner] converted the same to his own personal use and benefit".53

The foregoing information describes the manner of securing the loan as indirect; names petitioner as the benefactor of the indirect loan; and states that the requirements of the law were not complied with. It contains all the required elements54 for a violation

of Section 83, even if petitioner did not secure the loan in his own name.

The broad interpretation of the prohibition in Section 83 is justified by the fact that it even expressly covers loans to third parties where the third parties are aware of the transaction (such as principals represented by the DOSRI), and where the DOSRI’s interest does not appear to be beneficial but even burdensome (such as in cases when the DOSRI acts as a mere guarantor or surety). If the law finds it necessary to protect the bank and the banking system in such situations, it will surely be illogical for it to exclude a case like this where the DOSRI acted for his own benefit, using the name of an unsuspecting person. A contrary interpretation will effectively allow a DOSRI to use dummies to circumvent the requirements of the law.

In sum, the informations filed against petitioner do not negate each other.

Third Issue:

Is a Rule 65 petition for certiorari the proper remedy against an Order denying a Motion to Quash?

This issue may be speedily resolved by adopting our ruling in Soriano v. People,55 where we held:

In fine, the Court has consistently held that a special civil action for certiorari is not the proper remedy to assail the denial of a motion to quash an information. The proper procedure in such a case is for the accused to enter a plea, go to trial without prejudice on his part to present the special defenses he had invoked in his motion to quash and if after trial on the merits, an adverse decision is rendered, to appeal therefrom in the manner authorized by law. Thus, petitioners should not have forthwith filed a special civil action for certiorari with the CA and instead, they should have gone to trial and reiterated the special defenses contained in their motion to quash. There are no special or exceptional circumstances in the present case that would justify immediate resort to a filing of a petition for certiorari. Clearly, the CA did not commit any reversible error, much less, grave abuse of discretion in dismissing the petition.56

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Fourth Issue:

Whether petitioner is entitled to a writ of injunction

The requisites to justify an injunctive relief are: (1) the right of the complainant is clear and unmistakable; (2) the invasion of the right sought to be protected is material and substantial; and (3) there is an urgent and paramount necessity for the writ to prevent serious damage. A clear legal right means one clearly founded in or granted by law or is "enforceable as a matter of law." Absent any clear and unquestioned legal right, the issuance of an injunctive writ would constitute grave abuse of discretion.57 Caution and prudence must, at all times, attend the issuance of an injunctive writ because it effectively disposes of the main case without trial and/or due process.58 In Olalia v. Hizon,59 the Court held as follows:

It has been consistently held that there is no power the exercise of which is more delicate, which requires greater caution, deliberation and sound discretion, or more dangerous in a doubtful case, than the issuance of an injunction. It is the strong arm of equity that should never be extended unless to cases of great injury, where courts of law cannot afford an adequate or commensurate remedy in damages.

Every court should remember that an injunction is a limitation upon the freedom of action of the [complainant] and should not be granted lightly or precipitately. It should be granted only when the court is fully satisfied that the law permits it and the emergency demands it.

Given this Court's findings in the earlier issues of the instant case, we find no compelling reason to grant the injunctive relief sought by petitioner.

WHEREFORE, the petition is DENIED. The assailed September 26, 2003 Decision as well as the February 5, 2004 Resolution of the Court of Appeals in CA-G.R. SP No. 67657 are AFFIRMED. Costs against petitioner.

SO ORDERED.

PEOPLE OF THE PHILIPPINES vs. FERNANDO VILLAMIN Y SAN JOSE ALIAS ANDOYG.R. No. 175590               February 9, 2010

D E C I S I O N

PERALTA, J.:

This is an appeal from the Decision1 dated July 19, 2006 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 00967, affirming the Decision2 dated May 7, 2003 of the Regional Trial Court (RTC) of Malolos, Bulacan, Branch 20, in Criminal Case No. 2332-M-2002, finding accused-appellant Fernando Villamin guilty beyond reasonable doubt of violation of Section 5, Article II of Republic Act (R.A.) 9165.

The facts, as culled from the records, are the following:

Members of the Drug Enforcement Unit (DEU) of San Jose del Monte Police Station received a report from a civilian informant and from the Barangay Captain of Barangay Gumaok, San Jose del Monte, Bulacan sometime during the first week of August 2002, that a certain Fernando Villamin, alias "Andoy," was engaged in the sale of shabu3 in that same place. 4 Thus, a team composed of Senior Police Officer 2 (SPO2) Mario Llarinas, Eduardo Ocampo, a police aide, and a civilian asset, was formed to conduct a test-buy operation of shabu from accused-appellant.5

A civilian asset of the DEU and Police Aide Eduardo Ocampo, on August 15, 2002, went to accused-appellant in order to buy shabu. Accused-appellant informed them that he ran out of stock and asked them to return the following day. When the civilian asset and Eduardo Ocampo returned the next day, accused-appellant informed them that the shabu was not yet available and again suggested that they return the following day.6

On August 17, 2002, a team -- composed of SPO4 Abelardo Taruc; Police Officers 2 (PO2) Mario Llarinas and Nasser Saiyadi; members of the DEU; and four (4) police aides, namely; Eduardo Ocampo, Jude Illana, Glendo Villamor, and Jerson Bausa -- was then formed to conduct a buy-bust operation directed at accused-appellant.7 The designated leader and poseur-buyer was SPO4 Taruc.8 In

9

connection therewith, SPO4 Taruc prepared two P100.00 marked bills before the buy-bust operation.9

The team then proceeded to Barangay Gumaok, San Jose del Monte, Bulacan at around 11:00 o'clock in the morning. SPO4 Taruc and the civilian asset approached the house of accused-appellant, while the rest positioned themselves at strategic locations near the house. The civilian asset introduced SPO4 Taruc to accused-appellant and told the latter that SPO4 Taruc wanted to buy shabu worth P200.00. Accused-appellant responded, saying, "Meron na, meron na."10 Afterwards, accused-appellant entered his house. When accused-appellant opened the door of the house, SPO4 Taruc noticed that there were several people sniffing shabu inside the same house. After a few minutes, accused-appellant came out of his house holding a small packet/plastic sachet. Accused-appelant approached SPO4 Taruc, and the latter handed the former the two P100.00 marked bills. Thereafter, accused-appellant gave the plastic sachet he was holding to SPO4 Taruc.11

SPO4 Taruc, after making sure that the content of the plastic sachet was indeed shabu, held the hands of accused-appellant and placed him under arrest. Accused-appellant was, thereafter, frisked and the marked money, along with six more sachets of shabu, were seized from him. As a signal to the other members of the buy-bust operation team that the transaction was already completed, SPO4 Taruc placed his hand on his head. Hence, the rest of the team hurried to apprehend accused-appellant and the other people inside the house. However, the others scampered to different directions.12 The police officers and their aides were able to apprehend only two women, namely: Alma Frial, accused-appellant's neighbor, and Joselyn Patilano-Cabardo, accused-appellant's live-in partner.13

Also recovered inside the house of accused-appellant were six other sachets of shabu and shabu paraphernalia. Subsequently, accused-appellant, Alma Frial, and Joselyn Patilano-Cabardo, as well as the evidence recovered, were brought to the police headquarters where the members of the buy-bust operation team also prepared their joint affidavits.14

The seven (7) plastic sachets of shabu, including the one bought from accused-appellant during the buy-bust operation, as well as the drug paraphernalia, were referred to the Philippine National Police (PNP) Crime Laboratory.15 Forensic Chemist, PNP Inspector

Nellson Sta. Maria, after conducting a series of tests to determine the contents of the gathered pieces of evidence, came out with the following findings:

SPECIMEN SUBMITTED:

A - One (1) heat-sealed transparent plastic sachet with markings "AT-FV" containing 0.145 gram of white crystalline substance.

x x x

FINDINGS:

Qualitative examination conducted on the above stated specimens gave POSITIVE result to the test for the presence of Methylamphetamine hydrochloride,16 a regulated drug.17

Resultantly, three separate Informations were filed charging accused-appellant, and the others who were caught during the buy-bust operation, with violation of Secs. 5, 6 and 11, Art. II of R.A. 9165, which read, as follows:

Criminal Case No. 2331-M-2002

The undersigned City Prosecutor accuses Fernando Villamin y San Jose alias Andoy of violation of Section 11, Art. II of R.A. 9165, otherwise known as "The Comprehensive Dangerous Drugs Act of 2002," committed as follows:

That on or about the 17th day of August, 2002, in San Jose del Monte City, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without authority of law and legal justification, did then and there willfully, unlawfully and feloniously have in his possession and control six (6) heat-sealed transparent plastic sachets containing Methylamphetamine Hydrochloride having a total weight of 1,042 grams, which is a regulated drug.

Contrary to law.

Criminal Case No. 2332-M-2002

10

The undersigned City Prosecutor accuses Fernando Villamin y San Jose alias Andoy of Violation of Section 5, Art. II of R. A. 9165, otherwise known as "The Comprehensive Dangerous Drugs Act of 2002," committed as follows:

That on or about the 17th day of August, 2002, in San Jose del Monte City, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without authority of law and legal justification, did then and there willfully, unlawfully and feloniously sell, deliver dispatch in transit and transport one (1) heat-sealed transparent plastic sachet containing Methylamphetamine Hydrochloride weighing .145 gram, which is a regulated drug.

Contrary to law.

Criminal Case No. 2333-M-2002

The undersigned City Prosecutor accuses Fernando Villamin y San Jose alias Andoy of Violation of Section 6, Art. II of R. A. 9165, otherwise known as "The Comprehensive Dangerous Drugs Act of 2002," committed as follows:

That on or about the 17th day of August, 2002, San Jose del Monte City, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without authority of law and legal justification, did then and there willfully, unlawfully and feloniously openly maintain his residence located at Brgy. Gumaok East, this City, as drug den where drugs are administered/sold, dispensed and used.

Contrary to law.

On September 4, 2002, accused-appellant pleaded Not Guilty to all the charges against him. Thereafter, trial ensued.

The Prosecution presented the testimonies of Police Officer 3 (PO3) Nasser Saiyadi,18 SPO4 Abelardo Taruc,19 SPO2 Mario Llarina,20 and Police Aide Eduardo Ocampo21 who testified as to the facts earlier narrated.

The defense, on the other hand, presented the testimonies of accused-appellant22 and his live-in partner, Joselyn Patilano-

Cabardo.23 According to accused-appellant, on August 17, 2002, around 7:00 o'clock in the morning, he was having breakfast inside his house at Barangay Gumaok, San Jose del Monte, Bulacan, when three persons entered his house through the kitchen door. Alma Prial, one of the three persons, asked accused-appellant if she and her companions could stay in his house because somebody was chasing them, and said that one of her companions was in trouble. Accused-appellant refused the request of Alma for fear of being implicated in whatever trouble Alma and her two companions were involved. Accused-appellant added that Joselyn Patilano-Cabardo, his live-in partner, overheard the above conversation and told the former not to allow Alma Frial and her companions to stay in their house. Accused-appellant, in turn, told Alma Frial about the sentiments of his live-in partner.

Later on, as narrated by accused-appellant, somebody kicked the kitchen door of his house. Three men entered as the door opened, with one of them saying, "Walang kikilos, dyan ka lang." The two other men immediately proceeded to the room of accused-appellant and Cabardo. Accused-appellant was then asked, "Nasaan na yung mga kasama mo?" To this he replied that nobody else was inside the house except he and his live-in partner. Upon realizing the commotion, accused-appellant's live-in partner shouted, "Wala kayong karapatan na pumasok dito."

Meanwhile, somebody outside the house shouted, "Mayroong tao dito." Thereafter, four persons, one of them Alma Frial, entered accused-appellant's house. One of the men who earlier barged inside the house of accused-appellant said, "Sinungaling ka, ang sabi mo hindi nanggaling dito yang mga taong iyan." Joselyn Patilano-Cabardo tried to help accused-appellant but another man said, "Isa ka pa, maingay ka, kasama ka rin." It was then that SPO4 Taruc ordered, "Dalhin na ninyo iyan." However, Cabardo said, "Bakit ninyo kami dadalhin, wala naman kaming kasalanan?"

In short, accused-appellant denied that he was caught selling shabu, a denial which Joselyn Patilano-Cabardo corroborated.

The RTC found accused-appellant guilty beyond reasonable doubt of violation of Section 5, Article II of R.A. 9165 in Criminal Case No. 2332-M-2002, but acquitted him of the other charges. The dispositive portion of the trial court's decision reads:

11

WHEREFORE, premises considered, judgment is hereby rendered as follows:

(1) In Criminal Case No. 2332-M-2002, the Court finds accused Fernando Villamin y San Jose, guilty beyond reasonable doubt of Violation of Section 5, Article II of R. A. 9165 and hereby sentences him to life imprisonment. He is also ordered to pay a fine of Five Hundred Thousand Pesos (P500,00.00);

(2) In Criminal Cases Nos. 2331-M-2002 and 2333-M-2002, the Court finds that the prosecution failed to prove beyond reasonable doubt the guilt of accused Fernando Villamin y San Jose of the crimes charged and he is therefore acquitted;

(3) For insufficiency of evidence, the Court hereby acquits accused Joselyn Patilano-Cabardo and Alma Frial y Caluntod in Criminal Case No. 2334-M-2002.

The dangerous drugs and drug paraphernalia submitted as evidence in these cases are hereby ordered to be transmitted to the Dangerous Drugs Board (DDB).

SO ORDERED.

Due to the penalty imposed, which is Life Imprisonment, the case was elevated to this Court on appeal. However, per Resolution24 of this Court dated March 28, 2005, the case was transferred to the CA in conformity with the Decision of this Court dated July 7, 2004 in People v. Mateo,25 modifying the pertinent provisions of the Revised Rules of Criminal Procedure, particularly Sections 3 and 10 of Rule 122, Section 13 of Rule 124, Section 3 of Rule 125, and any other rule insofar as it provides for direct appeals from the RTC to this Court in cases where the penalty imposed is death, reclusion perpetua or life imprisonment; as well as the resolution of this Court en banc, dated September 19, 1995, on Internal Rules of the Supreme Court, in cases similarly involving the death penalty, pursuant to this Court's power to promulgate rules of procedure in all courts under Article VIII, Section 5 of the Constitution, and allowing an intermediate review by the CA before such cases are elevated to this Court.

The CA, in its Decision dated July 19, 2006, affirmed the conviction of accused-appellant. The dispositive portion reads as follows:

WHEREFORE, premises considered, the instant appeal is hereby DISMISSED for lack of merit, and the assailed decision is AFFIRMED and UPHELD in toto.

SO ORDERED.

Accused-appellant, in his Brief dated September 20, 2004, ascribes the following errors, to wit:

I

THE COURT A-QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-APPELLANT FOR THE CRIME CHARGED HAS BEEN PROVEN BEYOND REASONABLE DOUBT.

II

THE COURT A-QUO GRAVELY ERRED IN DISREGARDING THE CONSTITUTIONAL RIGHTS OF THE ACCUSED-APPELLANT AGAINST UNREASONABLE SEARCHES AND SEIZURES.

Accused-appellant claims that he was not given the opportunity to know the reason for his arrest, as he was immediately handcuffed by the arresting officers, making it appear that he was caught in flagrante selling shabu, which is in contravention of his rights against unreasonable searches and seizures as embodied under the 1987 Philippine Constitution. He further argues that the presumption of regularity in the performance of official duty cannot prevail over the constitutionally protected rights of an individual.

The Office of the Solicitor General (OSG), in its Brief, states the argument that:

THE PROSECUTION SATISFACTORILY PROVED THE GUILT OF APPELLANT BEYOND REASONABLE DOUBT.

The OSG posits that the crime of drug pushing merely requires the consummation of the sale, whereby the pusher hands over the

12

drugs to the buyer in exchange for money, which the prosecution is able to prove beyond reasonable doubt. It further contends that, accused-appellant's denial cannot prevail over his positive identification as a peddler of shabu. As to the claim of accused-appellant that his arrest and the search made by the police officers were illegal, the OSG points out that during his testimony, when asked if he ever protested his arrest during the time of the arrest itself, accused-appellant admitted that he merely informed the prosecutor about it, but did not file any written complaint or protest against the arresting officers.1avvphi1

The appeal is devoid of any merit.

The elements necessary for the prosecution of the illegal sale of drugs are: (1) the identities of the buyer and the seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment therefor. What is material to the prosecution for the illegal sale of dangerous drugs is the proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti.26

All of the above elements have been proven to be present in this case. The identities of the buyer and the seller, as well as the object and the consideration, were properly and sufficiently proven by the prosecution. As testified to by SPO4 Taruc regarding the buy-bust operation conducted:

Q: Mr. Witness, you stated that you are presently assigned at the San Jose de Monte Police Station, will you please tell before this Honorable Court what particular unit or division were you assigned?

A: At DEU, sir.

Q: Being assigned at the DEU of the San Jose del Monte Police Station, will you please tell before this Honorable Court your specific duties as such?

A: I am the chief of that section, sir.

Q: Being the chief of the said section of the DEU, will you please tell before this Honorable Court your duties as chief of the office?

A: To arrest drug pushers and drug users, sir.

Q: Do you rcall if you have reported for duty on August 17, 2002?

A: Yes, sir.

Q: At what time did you report for duty on said date?

A: At about 9:00 o'clock in the morning, sir.

Q: When you reported for duty, do you recall if there was unusual incident that transpired thereat?

A: When we were instructed to proceed to Gumaok East to conduct buy-bust operation, sir.

Q: Who instructed you to conduct buy-bust operation at Gumaok East, San Jose del Monte City, Bulacan?

A: Our chief of police, sir.

Q: And who is your chief of police Mr. Witness, at that time?

A: P/Sr. Supt. Romeo R. Palisoc, sir.

Q: Who are your companions who were directed by P/Sr. Supt. Palisoc to conduct buy-bust operation at Gumaok East, City of San Jose del Monte?

A: SPO2 Mario Llarinas, PO3 Nasser Saiyadi and the other members of our station, sir.

Q: What did you prepare if any prior to the actual buy-bust operation that took place at Gumaok East, San Jose del Monte City, Bulacan?

A: The vehicle and our buy-bust money, sir.

Q: How much buy-bust money did you prepare?

A: Two hundred pesos (P200.00), sir.

13

Q: Will you please tell this Honorable Court your participation in the actual buy-bust operation?

A: As Poseur buyer, sir.

Q: According to you you were directed by your chief of office to conduct buy-bust operation in Gumaok, and who is the person or the subject of the buy-bust to be conducted by you?

A: Fernando Villamin alias Andoy, sir.

Q: Mr. Witness, I am showing to you two (2) one hundred peso bills which according to you utilized as the buy-bust money, will you please go over the same and tell before this Honorable Court what relation if any these two (2) one hundred peso bills?

A: This is it, sir.

Q: Why do you say that these are the same two (2) one hundred peso bills, what were your identifying mark if any?

A: My initial, sir.

Q: Will you please point your initial which according to you you put there?

A: Here, sir. (witness pointed to the initial AT written on the collar of Manuel Roxas already marked as Exhibits A-1 and B-1).27

From the above testimony, it is clear that the first element has been complied with: the poseur-buyer positively identified the seller of shabu and the money used for the sale of the same. The second and crucial element, which is the proof that a transaction indeed transpired between the buyer and the seller, was categorically testified to by SPO4 Taruc, as follows:

Q: At what time did you actually proceed to Gumaok, San Jose del Monte City, Bulacan to conduct buy-bust operation against Fernando Villamin?

A: We arrived there at around 11:00 a. m., sir.

Q: When you reached the place at 11:00 o'clock in the morning, what transpired next if any?

A: When we arrived there, we saw Andoy and he met us and announced "meron na, meron na," sir.

Q: Mr. Witness let us clarify this matter, how many of you proceeded to the place?

A: Many, sir.

Q: According to you you acted as the poseur buyer, who acted as the back up?

A: Llarinas, Saiyadi and other DEU members, sir.

Q: Who are the DEU members?

A: Jerson Bausa, Eduardo Ocampo, Glendo Villamor and many others, sir.

Q: When you reached the place, being the poseur buyer what did you do?

A: We bought already, sir.

Q: How about your other companions?

A: They were from us, sir.

Q From where you are, how far were back up positioned themselves, if you know?

A: They were on the opposite side of the street and they were hidden, sir.

Q: According to you proceeded to the place, will you please describe the place?

14

A: It is a small house made of wood and hollow blocks, sir.

Q: Who owns the place?

A: Fernando Villamin, sir.

Q: What happened next after you proceeded to the house of Fernando Vilamin?

A: I already bought shabu from him, sir.

Q: Where did the transaction take place?

A: Near his house, sir.

Q: In front of the house?

A: Yes, sir.

Q: Were you alone in buying the shabu?

A: I was with our civilian asset, sir.

Q So it is now very clear that you being the poseur buyer as well as your asset together with Fernando Villamin were alone in the place?

A Yes, sir.

Q: What happened next thereafter?

A: When I said I am going to buy shabu, he readily gave me, sir.

Q: What happened next thereafter?

A: When I said I am going to buy shabu, he readily gave me, sir.

Q: What happened next thereafter?

A: He turned his back and went inside and get the shabu and came back carrying the shabu already, sir.

Q: Mr. Witness let us be specific, you stated he went inside, from where did he went inside?

A: Inside his house, sir.

x x x

Q: What happened next thereafter after Villamin went inside his house?

A: When Villamin entered his house and after we saw the persons using shabu, he went outside and handed the shabu to me, sir.

Q: How about the two hundred (P200.00)?

A: I handed to him, sir.

Q: Which came first, the handing of shabu or the handing of the two hundred (P200.00)?

A: I first handed him the money and he handed to me the shabu, sir.

Q: How many pieces of shabu?

A: Only one (1), sir.

Q: I am showing to you one small plastic sachet and inside is another plastic sachet which states BB OPN and Exhibit A, will you please go over the same and tell before this Honorable Court what relation if any that one small plastic sachet?

A: This is what he handed me, sir. (witness referring to one small plastic sachet placed inside a bigger sachet with marking BB OPN)

x x x

15

Q: After the accused handed to you the shabu which is the subject of the buy-bust, what happened next if any?

A: I held him by his hand and announced to him that I am arresting him for selling shabu, sir.28

As distinctly narrated above by the witness, a transaction indeed took place, which led to the arrest of the accused-appellant in flagrante. The other witnesses, members of the buy-bust operation team, corroborated the above testimony of SPO4 Taruc.

Prosecutions involving illegal drugs depend largely on the credibility of the police officers who conducted the buy-bust operation.29 It is a fundamental rule 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. The reason for this 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. The rule finds an even more stringent application where said findings are sustained by the Court of Appeals.30

Accused-appellant, during his testimony and in his Appellant's Brief, merely denied the charge against him. According to him, he was just having breakfast when the members of the buy-bust team suddenly barged inside the house and arrested him. Against the positive testimonies of the prosecution witnesses, appellant’s plain denial of the offenses charged, unsubstantiated by any credible and convincing evidence, must simply fail.31 Frame-up, like alibi, is generally viewed with caution by this Court, because it is easy to contrive and difficult to disprove. Moreover, it is a common and standard line of defense in prosecutions of violations of the Dangerous Drugs Act.32 For this claim to prosper, the defense must adduce clear and convincing evidence to overcome the presumption that government officials have performed their duties in a regular and proper manner.33 Unfortunately, the accused-appellant miserably failed to present any evidence that the members of the buy-bust operation team did not properly perform their duty, or that the entire operation was coupled with any improper motive.

As an added argument, the accused-appellant questions the legality of his arrest. He claims that he was not given the opportunity to know the reason for his arrest, and that the arresting officers were not armed with any warrant for arrest. This Court, however, finds the said argument to be preposterous. It must be remembered that the accused-appellant was the subject of a buy-bust operation, the main goal of which was to catch him in flagrante selling shabu, and from the evidence for the prosecution, he was arrested while committing a crime -- peddling of illegal drugs, a circumstance where warrantless arrest is justified under Rule 113, Section 5(a) of the Rules of Court, which states that:

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.

x x x

A buy-bust operation is a form of entrapment which in recent years has been accepted as a valid and effective mode of apprehending drug pushers. In a buy-bust operation, the idea to commit a crime originates from the offender, without anybody inducing or prodding him to commit the offense.34 If carried out with due regard for constitutional and legal safeguards, a buy-bust operation deserves judicial sanction.35 Thus, from the very nature of a buy-bust operation, the absence of a warrant does not make the arrest illegal.

WHEREFORE, the appealed decision dated July 19, 2006 of the Court of Appeals in CA-G. R. CR. - H. C. No. 00967, affirming the Decision dated May 7, 2003 of the Regional Trial Court of Malolos, Bulacan, Branch 20 in Criminal Case No. 2332-M-2002, finding accused-appellant, Fernando Villamin y San Jose, guilty beyond reasonable doubt of violation of Section 5, Article II of Republic Act (R.A.) 9165 is hereby AFFIRMED in toto.

SO ORDERED.

Quintin Saludaga and Fiel Genio v Sandiganbayan

16

GR no. 184537April 23, 2010

 MENDOZA, J.:            This is a petition for certiorari, prohibition and mandamus under Rule 65 of the 1997 Rules on Civil Procedure with a prayer for the issuance of a writ of preliminary injunction and temporary restraining order assailing the July 14, 2008 Resolution of the Sandiganbayan in Criminal Case No. SB-08 CRM 0263, denying the Motion for Preliminary Investigation filed by the petitioners who were charged with a violation of Section 3(e) of Republic Act No. 3019, and the denial of their Motion for Reconsideration done in open court on August 13, 2008.           An Information dated September 13, 2000 charging both petitioners with having violated Section 3(e) of Republic Act No. 3019, by causing undue injury to the government, reads: 

The undersigned Graft Investigation Officer of the Office of the Ombudsman-Visayas, accuses QUINTIN B. SALUDAGA and SPO2 FIEL E. GENIO, for VIOLATION OF SECTION 3(e) OF REPUBLIC ACT NO. 3019, AS AMENDED (THE ANTI-GRAFT AND CORRUPT PRACTICES ACT), committed as follows:  

 That in or about the months of November and December, 1997, at the Municipality of Lavezares, Province of Northern Samar, Philippines, and within the jurisdiction of this Honorable Court, above-named accused, public officials, being the Municipal Mayor and PNP Member of Lavezares, Northern Samar in such capacity and committing the offense in relation to office, conniving, confederating and mutually helping with one another, and with the late Limpio Legua, a private individual, with deliberate intent, with evident bad faith and manifest partiality, did then and there willfully, unlawfully and feloniously enter into a Pakyaw Contract for the Construction of Barangay Day Care Centers for Barangays Mac-arthur and Urdaneta, Lavezares, Northern Samar, each in the amount of FORTY-EIGHT THOUSAND FIVE HUNDRED PESOS (P48,500.00), Philippine Currency, or a total amount of NINETY-SEVEN THOUSAND PESOS (P97,000.00), Philippine Currency, without conducting a competitive public bidding, thus depriving the government the chance to obtain the best, if not, the most reasonable price, and thereby awarding said contracts to Olimpio Legua, a non-license contractor and non-accredited NGO, in

violation of Sec. 356 of Republic Act No. 7160 (The Local Government Code) and COA Circular No. 91-368, to the damage and prejudice of the government.

                         CONTRARY TO LAW.  This case was initially raffled to the Third Division of

Sandiganbayan and was docketed as Criminal Case No. 26319. In a Resolution promulgated on June 14, 2002, the Third

Division granted petitioners’ Motion to Quash and dismissed the information “for failure of the prosecution to allege and prove the amount of actual damages caused the government, an essential element of the crime charged.”

 In a Memorandum dated July 1, 2003, the Ombudsman

directed the Office of the Special Prosecutor (OSP) to study the possibility of having the information amended and re-filed with the Sandiganbayan.             Thus, the OSP re-filed the Information dated August 17, 2007, this time, docketed as Criminal Case No. SB-08 CRM 0263, with the Fourth Division of the Sandiganbayan, charging the petitioners for violation of Section 3(e) of R.A. No. 3019, by giving unwarranted benefit to a private person, to the prejudice of the government.           The information, subject of the petition, now reads: The undersigned Prosecutor of the Office of the Special Prosecutor/Office of the Ombudsman, hereby accuses, MAYOR QUINTIN B. SALUDAGA and SPO2 FIEL E. GENIO, for the violation of Section 3(e) of Republic Act 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, committed as follows: That in or about the months of November and December, 1997 at the Municipality of Lavezares, Province of Northern Samar, Philippines, and within the jurisdiction of this Honorable Court, accused QUINTIN B. SALUDAGA, a high ranking public official being then the Mayor of Lavezares, Northern Samar, and committing the crime herein charged while in the discharge of his official administrative function, conspiring and conniving with accused SPO2 FIEL B. GENIO, a member of Lavezares Police Force (PNP) and with the late OLIMPIO LEGUA, a private individual, with deliberate intent, did then and there willfully, unlawfully and criminally give unwarranted  benefit  or  advantage  to  the  late Olimpio   Legua,

17

a  non-license   contractor  and  non- accredited NGO, through evident bad faith and manifest partiality by then and there entering into a Pakyaw Contract with the latter for the Construction of Barangay Day Care Centers for barangays Mac-Arthur and Urdaneta, Lavezares, Northern Samar, in the amount of FORTY EIGHT THOUSAND FIVE HUNDRED PESOS (P48,500.00) each or a total of NINETY SEVEN THOUSAND PESOS (P97,000.00) Philippine Currency, without the benefit of a competitive public bidding to the prejudice of the Government and public interest.

                         CONTRARY TO LAW.

  Petitioners filed a Motion for Preliminary Investigation dated June 4, 2008 which was strongly opposed by the prosecution in its Opposition dated June 18, 2008. 

 Petitioners contend that the failure of the prosecution to

conduct a new preliminary investigation before the filing of the second Information constituted a violation of the law because the latter charged a different offense–that is, violation of Section 3(e) by giving unwarranted benefit to private parties.  Hence, there was a substitution of the first Information.  They argue that assuming that no substitution took place, at the very least, there was a substantial amendment in the new information and that its submission should have been preceded by a new preliminary investigation.  Further, they claim that newly discovered evidence mandates re-examination of the finding of a prima facie cause to file the case.

 On July 14, 2008, the Sandiganbayan Fourth Division issued

the assailed Resolution denying the petitioners’ motion for preliminary investigation.  The graft court found that there is no substituted information or substantial amendment that would warrant the conduct of a new preliminary investigation.  It gave the following ratiocination:

 The re-filed information did not change the

nature of the offense charged, but merely modified the mode by which accused committed the offense.  The substance of such modification is not such as to necessitate the conduct of another preliminary investigation.

 Moreover, no new allegations were made, nor

was the criminal liability of the accused upgraded in

the re-filed information.  Thus, new preliminary investigation is not in order.

             The dispositive portion of the Resolution states:

 Finding the arguments of accused-movants

indefensible, the sufficiency of the information must be sustained.

 WHEREFORE, having established the

sufficiency of the Information, the motion under consideration is hereby DENIED for lack of merit.  Accordingly, the arraignment of both accused shall proceed as scheduled.   

                   Petitioners filed a Motion for Reconsideration dated August 6, 2008, submitting that the two Informations substantially charged different offenses, such that the present information constituted a substitution that should have been preceded by a new preliminary investigation. 

                    On August 13, 2008, in a hearing for the arraignment of

petitioners, the Sandiganbayan denied the Motion in open court.

                    Hence, petitioners interpose the present petition for

certiorari, prohibition and mandamus with prayer for the issuance of a writ of preliminary injunction and temporary restraining order under Rule 65 of the Rules of Court anchored on the following grounds:

          I

 THE HONORABLE SANDIGANBAYAN ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT REFUSED TO ORDER THE PRELIMINARY INVESTIGATION OF THE CASE A QUO, WHEN THE SECOND INFORMATION IN THE INSTANT CASE CONSTITUTED SUBSTITUTED INFORMATION WHOSE SUBMISSION REQUIRED THE CONDUCT OF PRELIMINARY INVESTIGATION.

 II

 

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THE HONORABLE SANDIGANBAYAN ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT REFUSED TO ORDER THE CONDUCT OF A PRELIMINARY INVESTIGATION OF THE CASE A QUO, SINCE THE SECOND INFORMATION THEREIN CONTAINED SUBSTANTIAL AMENDMENTS WHOSE SUBMISSION REQUIRED THE CONDUCT OF PRELIMINARY INVESTIGATION.

III THE HONORABLE SANDIGANBAYAN ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT REFUSED TO ORDER THE PRELIMINARY INVESTIGATION OF THE CASE A QUO, ALTHOUGH THE NEWLY DISCOVERED EVIDENCE MANDATES DUE RE-EXAMINATION OF THE FINDING THAT PRIMA FACIE CAUSE EXISTED TO FILE THE CASE A QUO.   From the arguments raised by petitioners, the core

issue is whether or not the two (2) ways of violating section 3(e) of Republic Act 3019, namely: (a) by causing undue injury to any party, including the Government; or (b) by giving any private party any unwarranted benefit, advantage or preference constitute two distinct and separate offenses that would warrant a new or another preliminary investigation.             In its Comment dated January 12, 2009, respondent People of the Philippines, represented by the Office of the Special Prosecutor, counters that there is no substituted information in contemplation of law and jurisprudence that would require the conduct of another preliminary investigation.  There is no newly-discovered evidence that would lead to a different determination should there be another preliminary investigation conducted.                        

 In their Reply, dated April 24, 2009, petitioners insist that the offenses charged in the first and second Information are not the same, and what transpired was a substitution of Information that required prior conduct of preliminary investigation.  Even assuming there was no substitution, substantial amendments were made in the second

Information, and that its submission should have been preceded by a new preliminary investigation.  

 We find no merit in this petition.

Petitioners were charged with a violation of Section 3(e) of R.A. No. 3019 or the Anti-Graft and Corrupt Practices Act which reads:

Section 3.  Corrupt practices of public officers.- In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

(e)  Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence.  This provision shall apply to officers and employees charged with the grant of licenses or permits or other concessions.

The essential elements of the offense are as follows:          

1.       The accused must be a public officer discharging administrative, judicial or official functions;

 2.      He must have acted with manifest

partiality, evident bad faith or inexcusable negligence; and

  3.      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.

  In a string of decisions, the Court has consistently ruled:

 R.A. 3019, Section 3, paragraph (e), as

amended, provides as one of its elements that the

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public officer should have acted by causing any undue injury to any party, including the Government, or by giving any private party unwarranted benefits, advantage or preference in the discharge of his functions.  The use of the disjunctive term “or” connotes that either act qualifies as a violation of Section 3 paragraph (e), or as aptly held in Santiago, as two (2) different modes of committing the offense.  This does not however indicate that each mode constitutes a distinct offense, but rather, that an accused may be charged under either mode or under both. The afore-stated ruling is consistent with the well-

entrenched principle of statutory construction that “The word or is a disjunctive term signifying disassociation and independence of one thing from the other things enumerated; it should, as a rule, be construed in the sense in which it ordinarily implies, as a disjunctive word.”

  Contrary to the argument of petitioners, there is no

substituted information.  The Information dated August 17, 2007 filed in Criminal Case No. SB-08 CRM 0263 charged the same offense, that is, violation of Section 3(e) of Republic Act No. 3019. Only the mode of commission was modified.  While jurisprudence, the most recent being Talaga, Jr. v. Sandiganbayan, provides that there are two (2) acts or modes of committing the offense, thus: a) by causing any undue injury to any party, including the government; or b) by giving any private party any unwarranted benefit, advantage or preference, it does not mean that each act or mode constitutes a distinct offense.  An accused may be charged under either mode or under both should both modes concur.

 Petitioners’ reliance on the Teehankee v. Madayag, ruling

that, “in substitution of information another preliminary investigation is entailed and that the accused has to plead anew to the new information” is not applicable to the present case because, as already stated, there is no substitution of information there being no change in the nature of the offense charged.

 Consequently, petitioners cannot invoke the principle

enunciated in Villaflor v. Vivar, that failure to conduct a new preliminary investigation is tantamount to a violation of their rights.  While it is true that preliminary investigation is a statutory and substantive right accorded to the accused before trial, the

denial of petitioners’ claim for a new investigation, however, did not deprive them of their right to due process.  An examination of the records of the case discloses that there was a full-blown preliminary investigation wherein both petitioners actively participated.

 Anent the contention of petitioners that the information

contained substantial amendments warranting a new preliminary investigation, the same must likewise fail.                      Petitioners erroneously concluded that giving undue injury, as alleged in the first Information, and conferring unwarranted benefits, alleged in the second Information, are two distinct violations of, or two distinct ways of violating Section 3(e) of Republic Act No. 3019, and that such shift from giving undue injury to conferring unwarranted benefit constituted, at the very least, a substantial amendment.  It should be noted that the Information is founded on the same transaction as the first Information, that of entering into a Pakyaw Contract for the construction of barangay day care centers for barangays Mac-Arthur and Urdaneta, Lavezares, Northern Samar. Thus, the evidentiary requirements for the prosecution and defense remain the same.   

To bolster their claim for a reinvestigation of the offense, petitioners cited the case of Matalam v. Sandiganbayan.  The same is inapplicable to petitioners’ case.  In Matalam, there was indeed a substantial amendment which entitled the accused to another preliminary investigation.  The recital of facts constituting the offense charged therein was definitely altered.  In the original information, the prohibited act allegedly committed by the petitioner was the illegal and unjustifiable refusal to pay the monetary claims of the private complainants, whereas in the amended information, it is the illegal dismissal from the service of the private complainants.  In the case at bar, there is no substantial amendment to speak of.  As discussed previously, the Information in Criminal Case No. 26319 was already dismissed by the Third Division of the Sandiganbayan in view of the petitioners’ Motion to Quash.  As such, there is nothing more to be amended.

 The Court is not unaware of the case of People v. Lacson,

where it was written:           The case may be revived by the State within the time-bar either by the refiling of the Information or by the filing of a new    Information for the same

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offense or an offense necessarily included therein.  There would be no need of a new preliminary investigation.  However, in a case wherein after the provisional dismissal of a criminal case, the original witnesses of the prosecution or some of them may have recanted their testimonies or may have died or may no longer be available and new witnesses for the State have emerged, a new preliminary investigation must be conducted before an Information is refiled or a new Information is filed.  A new preliminary investigation is also required if aside from the original accused, other persons are charged under a new criminal complaint for the same offense or necessarily included therein; or if under a new criminal complaint, the original charge has been upgraded; or if under a new criminal complaint, the criminal liability of the accused is upgraded from that as an accessory to that as a principal.  The accused must be accorded the right to submit counter-affidavits and evidence.             No such circumstance is obtaining in this case, because

there was no modification in the nature of the charged offense.  Consequently, a new preliminary investigation is unnecessary and cannot be demanded by the petitioners.

 Finally, the third assigned error, that newly discovered

evidence mandates due re-examination of the finding of prima facie cause to file the case, deserves scant consideration.  For petitioners, it is necessary that a new investigation be conducted to consider newly discovered evidence, in particular, the Affidavit of COA Auditor Carlos G. Pornelos, author of the audit report.  We are not convinced.

 Under Section 2, Rule 121 of the Rules of Court, the

requisites for newly discovered evidence are: (a) the evidence was discovered after trial (in this case, after investigation); (b) such evidence could not have been discovered and produced at the trial with reasonable diligence; and (c) that it is material, not merely cumulative, corroborative or impeaching, and is of such weight that, if admitted, will probably change the judgment.

 The Pornelos affidavit, which petitioners claim as newly-

discovered, was executed by affiant way back in November 29, 2000, as correctly found by the Sandiganbayan.  Clearly, it cannot

be considered as newly found evidence because it was already in existence prior to the re-filing of the case.  In fact, such sworn affidavit was among the documents considered during the preliminary investigation.  It was the sole annexed document to petitioners’ Supplement to Motion for Reinvestigation, offered to dispute the charge that no public bidding was conducted prior to the execution of the subject project.

  bgMore important is the prosecution’s statement in its

Memorandum that, “after a careful re-evaluation of the documentary evidence available to the prosecution at the time of the filing of the initial Information, and at the time of the re-filing of the Information, the prosecution insists on the finding of probable cause, an exercise within the exclusive province of the Office of the Ombudsman.”   

 Worthy of note is the case of Soriano v. Marcelo, viz:                       Case law has it that the determination of probable cause against those in public office during a preliminary investigation is a function that belongs to the Office of the Ombudsman.  The Ombudsman has the discretion to determine whether a criminal case, given its attendant facts and circumstances, should be filed or not.  It is basically his call.     Without good and compelling reasons, the Court cannot

interfere in the exercise by the Office of the Ombudsman of its investigatory and prosecutory powers.  The only ground upon which it may entertain a review of the Office of the Ombudsman’s action is grave abuse of discretion. 

Grave abuse of discretion is an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law or to act in contemplation of law as when the judgment rendered is not based on law and evidence but on caprice, whim and despotism.

  The special civil action for certiorari under Rule 65 of the

Rules of Court is intended to correct errors of jurisdiction or grave abuse of discretion amounting to lack or excess of jurisdiction.  The writ of certiorari is directed against a tribunal, board or officer exercising judicial or quasi-judicial function that acted without or in excess of its or his jurisdiction or with grave abuse of discretion.  Grave abuse of discretion means such capricious or whimsical exercise of judgment which is equivalent to lack of jurisdiction.  To

21

justify the issuance of the writ of certiorari, the abuse of discretion must be grave, as when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined, or to act at all, in contemplation of law, as to be equivalent to having acted without jurisdiction.

 The case at bench discloses no evident indication that

respondent Sandiganbayan acted with arbitrariness, whim or caprice.  It committed no error in refusing to order the conduct of another preliminary investigation.  As sufficiently explained by the prosecution, a new preliminary investigation is not necessary as there was neither a modification of the nature of the offense charged nor a new allegation.  Such conduct of preliminary investigation anew will only delay the resolution of the case and would be an exercise in futility in as much as there was a complete preliminary investigation actively participated by both petitioners. 

 In view of the foregoing, we hold that the public respondent

committed no grave abuse of discretion in issuing its Resolution of July 14, 2008, denying petitioners’ motion for preliminary investigation in Criminal Case No. SB-08 CRM 0263.

 WHEREFORE, the petition is DENIED.Roberto b. kalalo vs OFFICE OF THE OMBUDSMAN, ERNESTO M. DE CHAVEZ and MARCELO L. AGUSTIN,G.R. No. 158189 April 23, 2010 D E C I S I O N

 PERALTA, J.:

          This is a petition for certiorari under Rule 65 of the Rules of Court seeking to nullify and/or set aside the Resolution dated May 14, 2002 and the Order dated October 8, 2002 of the Office of the Ombudsman.          The antecedent facts are as follows.          Petitioner Roberto Kalalo, an employee of Pablo Borbon Memorial Institute of Technology (PBMIT), now Batangas State

University, filed a Complaint Affidavit with the Office of the Ombudsman against the officials of the same school, namely: Dr. Ernesto M. De Chavez, President; Dr. Virginia M. Baes, Executive Vice-President; Dr. Rolando L. Lontok, Sr., Vice-President for Academic Affairs; Dr. Porfirio C. Ligaya, Vice-President for Extension Campus Operations; Professor Maximo C. Panganiban, Dean and Campus Administrator, Districts 1 and 2; Dr. Amador M. Lualhati, University Secretary; and Marcelo L. Agustin, Researcher, Office of the BSU President.          According to petitioner, the above-named officials committed falsification of public documents and violations of Sections 3 (a) and (e) of Republic Act No. 3019, or the Anti-Graft and Corrupt Practices Act, based on the following incidents:          The 129th General Meeting of the Board of Trustees of the PBMIT/BSU transpired on January 21, 1997.          In March 2001, petitioner, who was then the Board Secretary, claimed that he found in his table, a final print of the Minutes of the above-mentioned General Meeting which was forwarded by respondent Marcelo Agustin upon the order of respondent De Chavez, in order for the petitioner to certify as to its correctness.  The fact that the said copy of the Minutes was given to him after a long period of time and other inconsistencies found in the same document, caused suspicion on the part of the petitioner.  After conducting his own investigation, petitioner questioned the following three (3) resolutions, which, according to him, were inserted by De Chavez:  

         1) Resolution No. 6, s. 1997, which ratified the referendum dated August 4, 1996 approving the adjustment of charges or fees on the following documents issued by the college: 1) Admission and Testing Fee, 2) Transcript of Records, 3) Certification, 4) Honorable Dismissal, 5) Diploma, 6) Fine (late enrollees), 7) Library Card, and 8) second copy of Diploma;          2) Resolution No. 25, which relates to the authorizing of the President of PBMIT/BSU to deposit all the income of the college with government depositary banks in the form of savings, time, money placement and other deposit accounts, and to open a

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PBMIT testing, admission and placement office account;          3) Resolution No. 26, refers to the resolution approving the construction contracts entered into by PBMIT with C.S. Rayos Construction and General Services for the construction of the DOST/FNRI/PBMIT Regional Nutrition and Food Administration and Training Center and the Physical Education and Multi-Purpose Playground. The contract prices for the approved projects were P2,693,642.90 and P968,283.63, respectively.  

         As claimed by petitioner, the authentic minutes had eight (8) pages, while the falsified one had nine (9) pages.  Thus, he concluded that Resolution Nos. 25 and 26 were mere intercalations on the minutes of the annual meeting.           Petitioner also claimed that respondent's deviation from the usual procedure in signing and approving the minutes was highly suspicious.  According to petitioner, the usual procedure was for respondent De Chavez, in his capacity as Vice-Chairman, to sign the minutes only after the same has been attested by petitioner as the Board Secretary.  However, De Chavez submitted a copy of the minutes to petitioner with his signature already affixed thereon.  Thus, petitioner refused to sign the said minutes.          Despite the refusal of petitioner to sign the minutes, Resolution No. 25 was still implemented.           Respondents filed their Joint Counter-Affidavit denying petitioner's allegations and stating that it was ministerial on the part of respondent De Chavez to sign the minutes prepared by petitioner himself in his capacity as Board Secretary.  Petitioner, on the other hand, reiterated and stood by his allegations in his Complainant's Reply to Respondents' Joint Counter-Affidavit dated April 1, 2002.          In its Resolution dated May 14, 2002, the Office of the Deputy Ombudsman for Luzon dismissed the complaint of petitioner stating that: 

A careful evaluation of the case records and the evidence submitted reveals that the charge of falsification against respondents has no leg to stand on.

 What clearly appears on the records was that

complainant had issued certifications as to the correctness of the resolutions in question, namely, Resolution Nos. 6, s. 1997; 25 and 26. Readily, it can be said that said certifications did not only dispute complainant's claim, but casts serious doubt as to the merit of the instant complaint as well.

 It must be pointed out that complainant

assailed the authenticity of the minutes of the 129th

General Assembly meeting of the Board of Trustees of PBMIT and accused herein respondent for allegedly inserting/intercalating therein the aforesaid Resolution Nos. 6, 25 and 26.

 With the foregoing certifications subscribed

by complainant himself confirming the authenticity of the subject resolutions and the contents thereof, we fail to see any grounds for complainant to question the same.

 IN THE LIGHT OF THE FOREGOING, it is

respectfully recommended that the instant complaint be DISMISSED as it is hereby dismissed.

 SO RESOLVED.  

Petitioner filed a Motion for Reconsideration dated August 16, 2002, which was denied by the Ombudsman in an Order dated October 8, 2002 for lack of merit.

Hence, the present petition. Petitioner raises the following arguments: 

IPUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION IN SERIOUSLY MISAPPRECIATING THE FACTS AND ISSUES OF THE INSTANT CASE.

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 II

PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION IN ISSUING THE ASSAILED RESOLUTION AND ORDER WITHOUT FACTUAL AND LEGAL BASES. 

IIIPUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION IN NOT FINDING “PROBABLE CAUSE” AGAINST BOTH PRIVATE RESPONDENTS. 

                  The petition is bereft of merit. 

Petitioner extensively and exhaustively discusses in his petition, the differences between what he claimed to be the falsified Minutes and what he presented as the true and authentic Minutes of the general meeting, and by not subscribing to his own findings, he now comes to this Court alleging that the Office of the Ombudsman gravely abused its discretion which amounted to lack and/or excess of jurisdiction.          A careful reading of his arguments shows that the matters he raised were purely factual.  He claims that the Office of the Ombudsman grievously erred in finding that petitioner had issued certifications as to the correctness of the resolutions in question, namely Resolution Nos. 6, s. 1997; 25 and 26, when, according to petitioner, he positively asserted that the same were signed by mistake or out of sheer inadvertence.  He went on to state that the signature on the questioned Minutes was forged and that the one inadvertently signed was the excerpts, not the Minutes. This line of argument has been repeatedly emphasized along with his own findings of falsification.          In alleging the existence of grave abuse of discretion, it is well to remember Sarigumba v. Sandiganbayan, where this Court ruled that: 

         For grave abuse of discretion to prosper as a ground for certiorari, it must first be demonstrated that the lower court or tribunal has exercised its power in an arbitrary and despotic manner, by

reason of passion or personal hostility, and it must be patent and gross as would amount to an evasion or to a unilateral refusal to perform the duty enjoined or to act in contemplation of law.  Grave abuse of discretion is not enough.  Excess of jurisdiction signifies that the court, board or office, has jurisdiction over the case but has transcended the same or acted without authority.  

         After considering all the issues and arguments raised by the parties, this Court finds no clear showing of manifest error or grave abuse of discretion committed by the Office of the Ombudsman.          As a general rule, courts do not interfere with the discretion of the Ombudsman to determine whether there exists reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof and, thereafter, to file the corresponding information with the appropriate courts. 

This Court has consistently held that the Ombudsman has discretion to determine whether a criminal case, given its facts and circumstances, should be filed or not.  It is basically his call.  He may dismiss the complaint forthwith should he find it to be insufficient in form and substance, or should he find it otherwise, to continue with the inquiry; or he may proceed with the investigation if, in his view, the complaint is in due and proper form and substance.

            In the present case, the Office of the Ombudsman did not find probable cause that would warrant the filing of Information against respondents. Probable cause, for purposes 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 respondents are probably guilty thereof.  The determination of its existence lies within the discretion of the prosecuting officers after conducting a preliminary investigation upon complaint of an offended party.  Probable cause is meant such set of facts and circumstances which would lead a reasonably discreet and prudent man to believe that the offense charged in the Information, or any offense included therein, has been committed by the person sought to be arrested.  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.  A finding of probable cause needs only to rest on evidence

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showing that more likely than not a crime has been committed and that it was committed by the accused.  Probable cause demands more than bare suspicion; it requires less than evidence which would justify conviction.  Unless it is shown that the questioned acts were done in a capricious and whimsical exercise of judgment evidencing a clear case of grave abuse of discretion amounting to lack or excess of jurisdiction, this Court will not interfere in the findings of probable cause determined by the Ombudsman.          

The findings of the Office of the Ombudsman, as contained in its Order dated October 8, 2002, does not, in any way, indicate the absence of any factual or legal bases, as shown in the following: 

         While we do acknowledge that the purpose of a preliminary investigation is to determine the existence of probable cause that which engender a well-founded belief that an offense has been committed and that the accused is probably guilty thereof, we should not, however, lose sight of its other objective. In the case of Duterte v. Sandiganbayan, 289 SCRA 721, it is equally intoned that the rationale for conducting a preliminary investigation is “to secure the innocent against hasty, malicious, oppressive prosecution, and to protect him from an open and public accusation of a crime, from the trouble, expenses and anxiety of a public trial.”  With the questioned minutes bearing the signature of complainant-movant, the evidence at hand tends to tilt in favor of the dismissal of the case.  This is rightfully so as complainant-movant’s signature was never alleged to have been falsified, although he claims to have signed the minutes through inadvertence.             In relation thereto, complainant-movant’s assertion that his signature in the disputed minutes was a case of oversight is hardly impressive.  It should be noted that the minutes of the 129th

Regular Meeting of the then PBMIT Board of Trustees was approved during its 130th Regular Meeting held on November 7, 1997.  As the Board Secretary, complainant-movant could have easily detected the alleged insertions especially so when we consider that Board Resolution Nos. 25 and 26, s. of 1997,

were those last mentioned as having been approved by the Board.  It was quite, therefore, convenient for complainant-movant to blame respondent Marcelo L. Agustin for having signed the questioned minutes when it was his duty as Board Secretary to certify as to the correctness of the minutes.             More telling is the fact that complainant-movant again certified correct the excerpts of the minutes of the 129th Regular Meeting of then PBMIT Board of Trustees pertaining to Resolution No. 6, s. of 1997, approving the adjustment of charges or fees not only to the admission/testing fees but including transcript of records, certification, honorable dismissal, diploma, library card, fine (late enrollees) and second copy of diploma.  Given such situation, we could not believe that complainant-movant signed such excerpts of the minutes through the same inadvertence or oversight.  A single mistake may be acceptable but to commit the same twice is no longer a case of honest mistake.  Corollary thereto, this finding precludes any further discussion that the letter dated August 14, 1996 of respondent Ernesto M. de Chavez to then PBMIT Board of Trustees is conclusive proof that the increase in fees was limited only to the admission/testing fees.  It is not sound practice to depart from the policy of non-

interference in the Ombudsman's exercise of discretion to determine whether or not to file information against an accused. As cited in a long line of cases, this Court has pronounced that it cannot pass upon the sufficiency or insufficiency of evidence to determine the existence of probable cause.  The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman, but upon practicality as well.  If it were otherwise, this Court will be clogged with an innumerable list of cases assailing investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, to determine if there isprobable cause.          Furthermore, it is not amiss to state that the findings of the Ombudsman are essentially factual in nature.  Therefore, when petitioner assailed the findings of the Ombudsman on the guise that the latter committed grave abuse of discretion, questions of

25

fact are inevitably raised.  Clearly, petitioner centered his arguments on the Ombudsman’s appreciation of facts.  It must always be remembered that a petition for certiorari admits only of questions of grave abuse of discretion amounting to lack or excess of jurisdiction and never on questions of fact.           Petitioner raises as an incidental issue in his Memorandum that the Solicitor General cannot act as the counsel of private respondents in the instant criminal case, which is indisputable.  However, petitioner failed to understand that the Office of the Solicitor General represents the public respondent − the Office of the Ombudsman − upon which his petition revolves. The Office of the Ombudsman is an instrumentality of the government and, as mandated by law, the Office of the Solicitor General has the authority to represent the said office. Cooperative Development Authority v. DOLEFIL Agrarian Reform Beneficiaries Cooperative, Inc., et al.  is instructive as to the jurisdiction of the Office of the Solicitor General, which reads: 

The authority of the Office of the Solicitor General to represent the Republic of the Philippines, its agencies and instrumentalities, is embodied under Section 35(1), Chapter 12, Title III, Book IV of the Administrative Code of 1987, which provides that:

SEC. 35.  Powers and Functions.—The Office of the Solicitor General shall represent the Government of the Philippines, its agencies and intrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of lawyers. When authorized by the President or head of the office concerned, it shall also represent government owned or controlled corporations.  The Office of the Solicitor General shall constitute the law office of the Government and, as such, shall discharge duties requiring the services of lawyers.  It shall have the following specific powers and functions:

(1)       Represent the Government in the Supreme Court and the Court of Appeals in all criminal

proceedings; represent the Government and its officers in the Supreme Court, Court of Appeals, and all other courts or tribunals in all civil actions and special proceedings in which the Government or any officer thereof in his official capacity is a party.The import of the above-quoted provision of

the Administrative Code of 1987 is to impose upon the Office of the Solicitor General the duty to appear as counsel for the Government, its agencies and instrumentalities and its officials and agents before the Supreme Court, the Court of Appeals, and all other courts and tribunals in any litigation, proceeding, investigation or matter requiring the services of a lawyer.  Its mandatory character was emphasized by this Court in the case of Gonzales v. Chavez, thus:

It is patent that the intent of the lawmaker was to give the designated official, the Solicitor General, in this case, the unequivocal mandate to appear for the government in legal proceedings.  Spread out in the laws creating the office is the discernible intent which may be gathered from the term “shall”, which is invariably employed, from Act No. 136 (1901) to the more recent Executive Order No. 292 (1987).x x x                                          x x

x                               x x xThe decision of this Court as early as 1910

with respect to the duties of the Attorney-General well applies to the Solicitor General under the facts of the present case.  The Court then declared:

 In this jurisdiction, it is the duty

of the Attorney General “to perform the duties imposed upon him by law” and “he shall prosecute all causes, civil and criminal, to which the Government of the Philippine Islands, or any officer thereof, in his official capacity, is a party” xxx.

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 x x x                                x x

x                             x x x  The Court is firmly convinced that

considering the spirit and the letter of the law, there can be no other logical interpretation of Sec. 35 of the Administrative Code than that it is, indeed, mandatory upon the OSG to “represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of a lawyer.”

                   WHEREFORE, the petition is DISMISSED for lack of merit.  The Resolution dated May 14, 2002 and the Order dated October 8, 2002 of the Office of the Ombudsman are hereby AFFIRMED.           SO ORDERED

WONINA M. BONIFACIO, JOCELYN UPANO, VICENTE ORTUOSTE AND JOVENCIO PERECHE, SR.,  vs. REGIONAL TRIAL COURT OF MAKATI, BRANCH 149, and JESSIE JOHN P. GIMENEZ, G.R. No. 184800 May 5, 2010

D E C I S I O N

CARPIO MORALES, J.:

Via a petition for Certiorari and Prohibition, petitioners Wonina M. Bonifacio, et al. assail the issuances of Branch 149 of the Regional Trial Court (RTC) of Makati (public respondent) Order1 of April 22, 2008 which denied their motion to quash the Amended Information indicting them for libel, and Joint Resolution2 of August 12, 2008 denying reconsideration of the first issuance.

Private respondent Jessie John P. Gimenez3 (Gimenez) filed on October 18, 2005, on behalf of the Yuchengco Family ("in particular," former Ambassador Alfonso Yuchengco and Helen Y. Dee (Helen) and of the Malayan Insurance Co., Inc. (Malayan),4 a criminal complaint,5before the Makati City Prosecutors Office, for thirteen (13) counts of libel under Article 355 in relation to Article 353 of the Revised Penal Code (RPC) against Philip Piccio, Mia Gatmaytan and Ma. Anabella Relova Santos, who are officers of Parents Enabling Parents Coalition, Inc. (PEPCI), John Joseph Gutierrez, Jeselyn Upano, Jose Dizon, Rolanda Pareja, Wonina Bonifacio, Elvira Cruz, Cornelio Zafra, Vicente Ortueste, Victoria Gomez Jacinto, Jurencio Pereche, Ricardo Loyares and Peter Suchianco, who are trustees of PEPCI, Trennie Monsod, a member of PEPCI (collectively, the accused), and a certain John Doe, the administrator of the website www.pepcoalition.com.

PEPCI appears to have been formed by a large group of disgruntled planholders of Pacific Plans, Inc. (PPI) - a wholly owned subsidiary of Great Pacific Life Assurance Corporation, also owned by the

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Yuchengco Group of Companies (YGC) - who had previously purchased traditional pre-need educational plans but were unable to collect thereon or avail of the benefits thereunder after PPI, due to liquidity concerns, filed for corporate rehabilitation with prayer for suspension of payments before the Makati RTC.

Decrying PPIs refusal/inability to honor its obligations under the educational pre-need plans, PEPCI sought to provide a forum by which the planholders could seek redress for their pecuniary loss under their policies by maintaining a website on the internet under the address of www.pepcoalition.com.

Gimenez alleged that PEPCI also owned, controlled and moderated on the internet a blogspot6 under the website addresswww.pacificnoplan.blogspot.com, as well as a yahoo e-group7 at no2pep2010@yahoogroups.com. These websites are easily accessible to the public or by anyone logged on to the internet.

Gimenez further alleged that upon accessing the above-stated websites in Makati on various dates from August 25 to October 2, 2005, he "was appalled to read numerous articles [numbering 13], maliciously and recklessly caused to be published by [the accused] containing highly derogatory statements and false accusations, relentlessly attacking the Yuchengco Family, YGC, and particularly, Malayan."8 He cited an article which was posted/published on www.pepcoalition.com on August 25, 2005 which stated:

Talagang naisahan na naman tayo ng mga Yuchengcos. Nangyari na ang mga kinatatakutan kong pagbagsak ng negotiation because it was done prematurely since we had not file any criminal aspect of our case. What is worse is that Yuchengcos benefited much from the nego. x x x . That is the fact na talagang hindi dapat pagtiwalaan ang mga Yuchengcos.

LETS MOVE TO THE BATTLEFIELD. FILE THE CRIMINAL CASES IN COURT, BSP AND AMLC AND WHEREVER. Pumunta tayong muli sa senado, congreso, RCBC Plaza, and other venues to air our grievances and call for boycott ng YGC. Let us start within ourselves. Alisin natin ang mga investments and deposits natin sa lahat ng YGC and I mean lahat and again convince friends to do the same. Yung mga nanonood lang noon ay dapat makisali na talaga ngayon specially those who joined only after knowing that there was a negotiation for amicable settlements.

FOR SURE MAY TACTICS PA SILANG NAKABASTA SA ATIN. LET US BE READY FOR IT BECAUSE THEY HAD SUCCESSFULLY LULL US AND THE NEXT TIME THEY WILL TRY TO KILL US NA. x x x 9 (emphasis in the original)

By Resolution of May 5, 2006,10 the Makati City Prosecutors Office, finding probable cause to indict the accused, filed thirteen (13) separate Informations11 charging them with libel. The accusatory portion of one Information, docketed as Criminal Case No. 06-876, which was raffled off to public respondent reads:

That on or about the 25th day of August 2005 in Makati City, Metro Manila, Philippines, a place within the jurisdiction of the Honorable Court, the above-named accused, being then the trustees of Parents Enabling Parents Coalition and as such trustees they hold the legal title to the website www.pepcoalition.com which is of general circulation, and publication to the public conspiring, confederating and mutually helping with one another together with John Does, did then and there willfully, unlawfully and feloniously and publicly and maliciously with intention of attacking the honesty, virtue, honor and integrity, character and reputation of complainant Malayan Insurance Co. Inc., Yuchengco Family particularly Ambassador Alfonso Yuchengco and Helen Dee and for further purpose exposing the complainant to public hatred and contempt published an article imputing a vice or defect to the complainant and caused to be composed, posted and published in the said website www.pepcoalition.com and injurious and defamatory article as follows:

Talagang naisahan na naman tayo ng mga Yuchengcos. Nangyari na ang mga kinatatakutan kong pagbagsak ng negotiation. x x x x x x x x x

For sure may tactics pa silang nakabasta sa atin. Let us be ready for it because they had successfully lull us and the next time they will try to kill us na. x x x

A copy of the full text of the foregoing article as published/posted in www.pepcoalition.com is attached as Annex "F" of the complaint.

That the keyword and password to be used in order to post and publish the above defamatory article are known to the accused as trustees holding legal title to the above-cited website and that the

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accused are the ones responsible for the posting and publication of the defamatory articles that the article in question was posted and published with the object of the discrediting and ridiculing the complainant before the public.

CONTRARY TO LAW.12

Several of the accused appealed the Makati City Prosecutors Resolution by a petition for review to the Secretary of Justice who, by Resolution of June 20, 2007,13 reversed the finding of probable cause and accordingly directed the withdrawal of the Informations for libel filed in court. The Justice Secretary opined that the crime of "internet libel" was non-existent, hence, the accused could not be charged with libel under Article 353 of the RPC.14

Petitioners, as co-accused,15 thereupon filed on June 6, 2006, before the public respondent, a Motion to Quash16 the Information in Criminal Case No. 06-876 on the grounds that it failed to vest jurisdiction on the Makati RTC; the acts complained of in the Information are not punishable by law since internet libel is not covered by Article 353 of the RPC; and the Information is fatally defective for failure to designate the offense charged and the acts or omissions complained of as constituting the offense of libel.

Citing Macasaet v. People,17 petitioners maintained that the Information failed to allege a particular place within the trial courts jurisdiction where the subject article was printed and first published or that the offended parties resided in Makati at the time the alleged defamatory material was printed and first published.

By Order of October 3, 2006,18 the public respondent, albeit finding that probable cause existed, quashed the Information, citing Agustin v. Pamintuan.19 It found that the Information lacked any allegations that the offended parties were actually residing in Makati at the time of the commission of the offense as in fact they listed their address in the complaint-affidavit at Yuchengco Tower in Binondo, Manila; or that the alleged libelous article was printed and first published in Makati.

The prosecution moved to reconsider the quashal of the Information,20 insisting that the Information sufficiently conferred jurisdiction on the public respondent. It cited Banal III v. Panganiban21 which held that the Information need not allege

verbatim that the libelous publication was "printed and first published" in the appropriate venue. And it pointed out that Malayan has an office in Makati of which Helen is a resident. Moreover, the prosecution alleged that even assuming that the Information was deficient, it merely needed a formal amendment.

Petitioners opposed the prosecutions motion for reconsideration, contending, inter alia, that since venue is jurisdictional in criminal cases, any defect in an information for libel pertaining to jurisdiction is not a mere matter of form that may be cured by amendment.22

By Order of March 8, 2007,23 the public respondent granted the prosecutions motion for reconsideration and accordingly ordered the public prosecutor to "amend the Information to cure the defect of want of venue."

The prosecution thereupon moved to admit the Amended Information dated March 20, 2007,24 the accusatory portion of which reads:

That on or about the 25th day of August 2005 in Makati City, Metro Manila, Philippines, a place within the jurisdiction of the Honorable Court, the above-named accused, being then the trustees of Parents Enabling Parents Coalition and as such trustees they hold the legal title to the website www.pepcoalition.com which is of general circulation, and publication to the public conspiring, confederating together with John Does, whose true names, identities and present whereabouts are still unknown and all of them mutually helping and aidingone another, did then and there willfully, unlawfully and feloniously and publicly and maliciously with intention of attacking the honesty, virtue, honor and integrity, character and reputation of complainant Malayan Insurance Co. Inc., Yuchengco Family particularly Ambassador Alfonso Yuchengco and Helen Dee and for further purpose exposing the complainant to public hatred and contempt published an article imputing a vice or defect to the complainant and caused to be composed, posted and published in the said websitewww.pepcoalition.com, a website accessible in Makati City, an injurious and defamatory article, which was first published and accessed by the private complainant in Makati City, as follows:

x x x x (emphasis and underscoring in the original; italics supplied)

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Petitioners moved to quash the Amended Information25 which, they alleged, still failed to vest jurisdiction upon the public respondent because it failed to allege that the libelous articles were "printed and first published" by the accused in Makati; and the prosecution erroneously laid the venue of the case in the place where the offended party accessed the internet-published article.

By the assailed Order of April 22, 2008, the public respondent, applying Banal III, found the Amended Information to be sufficient in form.

Petitioners motion for reconsideration26 having been denied by the public respondent by Joint Resolution of August 12, 2008, they filed the present petition for Certiorari and Prohibition faulting the public respondent for:

1. NOT FINDING THAT THE ACTS ALLEGED IN THE INFORMATION ARE NOT PUNISHABLE BY LAW;

2. ADMITTING AN AMENDED INFORMATION WHOSE JURISDICTIONAL ALLEGATIONS CONTINUES TO BE DEFICIENT; and

3. NOT RULING THAT AN AMENDMENT IN THE INFORMATION FOR THE PURPOSE OF CURING JURISDICTIONAL DEFECTS IS ILLEGAL.27

With the filing of Gimenezs Comment28 to the petition, the issues are: (1) whether petitioners violated the rule on hierarchy of courts to thus render the petition dismissible; and (2) whether grave abuse of discretion attended the public respondents admission of the Amended Information.

The established policy of strict observance of the judicial hierarchy of courts,29 as a rule, requires that recourse must first be made to the lower-ranked court exercising concurrent jurisdiction with a higher court.30 A regard for judicial hierarchy clearly indicates that petitions for the issuance of extraordinary writs against first level courts should be filed in the RTC and those against the latter should be filed in the Court of Appeals.31 The rule is not iron-clad, however, as it admits of certain exceptions.

Thus, a strict application of the rule is unnecessary when cases brought before the appellate courts do not involve factual but purely legal questions.32

In the present case, the substantive issue calls for the Courts exercise of its discretionary authority, by way of exception, in order to abbreviate the review process as petitioners raise a pure question of law involving jurisdiction in criminal complaints for libel under Article 360 of the RPC whether the Amended Information is sufficient to sustain a charge for written defamation in light of the requirements under Article 360 of the RPC, as amended by Republic Act (RA) No. 4363, reading:

Art. 360. Persons responsible.Any person who shall publish, exhibit or cause the publication or exhibition of any defamation in writing or by similar means, shall be responsible for the same.

The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper, magazine or serial publication, shall be responsible for the defamations contained therein to the same extent as if he were the author thereof.

The criminal action and civil action for damages in cases of written defamations, as provided for in this chapter shall be filed simultaneously or separately with the Court of First Instance of the province or city where the libelous article is  printed and first published or where any of the offended parties actually resides at the time of the commission of the offense: Provided, however, That where one of the offended parties is a public officer whose office is in the City of Manila at the time of the commission of the offense, the action shall be filed in the Court of First Instance of the City of Manila or of the city or province where the libelous article is printed and first published, and in case such public officer does not hold office in the City of Manila, the action shall be filed in the Court of First Instance of the province or city where he held office at the time of the commission of the offense or where the libelous article is printed and first published and in case one of the offended parties is a private individual, the action shall be filed in the Court of First Instance of the province or city where he actually resides at the time of the commission of the offense or where the libelous matter is printed and first published x x x. (emphasis and underscoring supplied)

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Venue is jurisdictional in criminal actions such that the place where the crime was committed determines not only the venue of the action but constitutes an essential element of jurisdiction.33 This principle acquires even greater import in libel cases, given that Article 360, as amended, specifically provides for the possible venues for the institution of the criminal and civil aspects of such cases.

In Macasaet,34 the Court reiterated its earlier pronouncements in Agbayani v. Sayo35 which laid out the rules on venue in libel cases, viz:

For the guidance, therefore, of both the bench and the bar, this Court finds it appropriate to reiterate our earlier pronouncement in the case of Agbayani, to wit:

In order to obviate controversies as to the venue of the criminal action for written defamation, the complaint or information should contain allegations as to whether, at the time the offense was committed, the offended party was a public officer or a private individual and where he was actually residing at that time. Whenever possible, the place where the written defamation was printed and first published should likewise be alleged. That allegation would be a   sine qua non  if the circumstance as to where the libel was printed and first published is used as the basis of the venue of the action.   (emphasis and underscoring supplied)

It becomes clear that the venue of libel cases where the complainant is a private individual is limited to only either of two places, namely: 1) where the complainant actually resides at the time of the commission of the offense; or 2) where the alleged defamatory article was printed and first published. The Amended Information in the present case opted to lay the venue by availing of the second. Thus, it stated that the offending article "was first published and accessed by the private complainant in Makati City." In other words, it considered the phrase to be equivalent to the requisite allegation of printing and first publication.

The insufficiency of the allegations in the Amended Information to vest jurisdiction in Makati becomes pronounced upon an examination of the rationale for the amendment to Article 360 by RA No. 4363. Chavez v. Court of Appeals36 explained the nature of these changes:

Agbayani supplies a comprehensive restatement of the rules of venue in actions for criminal libel, following the amendment by Rep. Act No. 4363 of the Revised Penal Code:

"Article 360 in its original form provided that the venue of the criminal and civil actions for written defamations is the province wherein the libel was published, displayed or exhibited, regardless of the place where the same was written, printed or composed. Article 360 originally did not specify the public officers and the courts that may conduct the preliminary investigation of complaints for libel.

Before article 360 was amended, the rule was that a criminal action for libel may be instituted in any jurisdiction where the libelous article was published or circulated, irrespective of where it was written or printed (People v. Borja, 43 Phil. 618). Under that rule, the criminal action is transitory and the injured party has a choice of venue.

Experience had shown that under that old rule the offended party could harass the accused in a libel case by laying the venue of the criminal action in a remote or distant place.

Thus, in connection with an article published in the Daily Mirror and the Philippine Free Press, Pio Pedrosa, Manuel V. Villareal and Joaquin Roces were charged with libel in the justice of the peace court of San Fabian, Pangasinan (Amansec v. De Guzman, 93 Phil. 933).

To forestall such harassment, Republic Act No. 4363 was enacted. It lays down specific rules as to the venue of the criminal action so as to prevent the offended party in written defamation cases from inconveniencing the accused by means of out-of-town libel suits, meaning complaints filed in remote municipal courts (Explanatory Note for the bill which became Republic Act No. 4363, Congressional Record of May 20, 1965, pp. 424-5; Time, Inc. v. Reyes, L-28882, May 31, 1971, 39 SCRA 303, 311).

x x x x (emphasis and underscoring supplied)

Clearly, the evil sought to be prevented by the amendment to Article 360 was the indiscriminate or arbitrary laying of the venue in libel cases in distant, isolated or far-flung areas, meant to

31

accomplish nothing more than harass or intimidate an accused. The disparity or unevenness of the situation becomes even more acute where the offended party is a person of sufficient means or possesses influence, and is motivated by spite or the need for revenge.

If the circumstances as to where the libel was printed and first published are used by the offended party as basis for the venue in the criminal action, the Information must allege with particularity where the defamatory article was printed and first published, as evidenced or supported by, for instance, the address of their editorial or business offices in the case of newspapers, magazines or serial publications. This pre-condition becomes necessary in order to forestall any inclination to harass.

The same measure cannot be reasonably expected when it pertains to defamatory material appearing on a website on the internet as there would be no way of determining the situs of its printing and first publication. To credit Gimenezs premise of equating his first access to the defamatory article on petitioners website in Makati with "printing and first publication" would spawn the very ills that the amendment to Article 360 of the RPC sought to discourage and prevent. It hardly requires much imagination to see the chaos that would ensue in situations where the websites author or writer, a blogger or anyone who posts messages therein could be sued for libel anywhere in the Philippines that the private complainant may have allegedly accessed the offending website.

For the Court to hold that the Amended Information sufficiently vested jurisdiction in the courts of Makati simply because the defamatory article was accessed therein would open the floodgates to the libel suit being filed in all other locations where the pepcoalition website is likewise accessed or capable of being accessed.

Respecting the contention that the venue requirements imposed by Article 360, as amended, are unduly oppressive, the Courts pronouncements in Chavez37 are instructive:

For us to grant the present petition, it would be necessary to abandon the Agbayani rule providing that a private person must file the complaint for libel either in the place of printing and first publication, or at the complainants place of residence. We would also have to abandon the subsequent cases that reiterate this rule

in Agbayani, such as Soriano, Agustin, and Macasaet. There is no convincing reason to resort to such a radical action. These limitations imposed on libel actions filed by private persons are hardly onerous, especially as they still allow such persons to file the civil or criminal complaint in their respective places of residence, in which situation there is no need to embark on a quest to determine with precision where the libelous matter was printed and first published.

(Emphasis and underscoring supplied.)

IN FINE, the public respondent committed grave abuse of discretion in denying petitioners motion to quash the Amended Information.

WHEREFORE, the petition is GRANTED. The assailed Order of April 22, 2008 and the Joint Resolution of August 12, 2008 are hereby SET ASIDE. The Regional Trial Court of Makati City, Br. 149 is hereby DIRECTED TO QUASH the Amended Information in Criminal Case No. 06-876 and DISMISS the case.

SO ORDERED.

TEODORO C. BORLONGAN, JR., CORAZON M. BEJASA, ARTURO E. MANUEL, JR., ERIC L. LEE, P. SIERVO H. DIZON, BENJAMIN DE LEON, DELFIN C. GONZALES, JR., and BEN YU LIM, JR., 

vs. 

MAGDALENO M. PEÑA and HON. MANUEL Q. LIMSIACO, JR., as Judge Designate of the Municipal Trial Court in Cities, Bago City

G.R. No. 14359

May 5, 2010

32

D E C I S I O N

PEREZ, J.:

The pivotal issue in this case is whether or not the Court of Appeals, in its Decision1 dated 20 June 2000 in CA-G.R. SP No. 49666, is correct when it dismissed the petition for certiorari filed by petitioners Teodoro C. Borlongan, Jr., Corazon M. Bejasa, Arturo E. Manuel, Jr., Benjamin de Leon, P. Siervo H. Dizon, Delfin C. Gonzales, Jr., Eric L. Lee and Ben Yu Lim, Jr., and ruled that the Municipal Trial Court in Cities (MTCC), Bago City, did not gravely abuse its discretion in denying the motion for reinvestigation and recall of the warrants of arrest in Criminal Case Nos. 6683, 6684, 6685, and 6686.

The factual antecedents of the case are as follows:

Respondent Atty. Magdaleno M. Peña (Atty. Peña) instituted a civil case for recovery of agents compensation and expenses, damages, and attorneys fees2 against Urban Bank and herein petitioners, before the Regional Trial Court (RTC) of Negros Occidental, Bago City. The case was raffled to Branch 62 and was docketed as Civil Case No. 754. Atty. Peña anchored his claim for compensation on the Contract of Agency3 allegedly entered into with the petitioners, wherein the former undertook to perform such acts necessary to prevent any intruder and squatter from unlawfully occupying Urban Banks property located along Roxas Boulevard, Pasay City. Petitioners filed a Motion to Dismiss4 arguing that they never appointed the respondent as agent or counsel. Attached to the motion were the following documents: 1) a Letter5 dated 19 December 1994 signed by Herman Ponce and Julie Abad on behalf of Isabela Sugar Company, Inc. (ISCI), the original owner of the subject property; 2) an unsigned Letter6 dated 7 December 1994 addressed to Corazon Bejasa from Marilyn G. Ong; 3) a Letter7 dated 9 December 1994 addressed to Teodoro Borlongan, Jr. and signed by Marilyn G. Ong; and 4) a Memorandum8 dated 20 November 1994 from Enrique Montilla III. Said documents were presented in an attempt to show that the respondent was appointed as agent by ISCI and not by Urban Bank or by the petitioners.

In view of the introduction of the above-mentioned documents, Atty. Peña filed his Complaint-Affidavit9 with the Office of the City Prosecutor, Bago City.10 He claimed that said documents were

falsified because the alleged signatories did not actually affix their signatures, and the signatories were neither stockholders nor officers and employees of ISCI.11 Worse, petitioners introduced said documents as evidence before the RTC knowing that they were falsified.

In a Resolution12 dated 24 September 1998, the City Prosecutor found probable cause for the indictment of petitioners for four (4) counts of the crime of Introducing Falsified Documents, penalized by the second paragraph of Article 172 of the Revised Penal Code. The City Prosecutor concluded that the documents were falsified because the alleged signatories untruthfully stated that ISCI was the principal of the respondent; that petitioners knew that the documents were falsified considering that the signatories were mere dummies; and that the documents formed part of the record of Civil Case No. 754 where they were used by petitioners as evidence in support of their motion to dismiss, and then adopted in their answer and in their Pre-Trial Brief.13 Subsequently, the corresponding Informations14 were filed with the MTCC, Bago City. The cases were docketed as Criminal Case Nos. 6683, 6684, 6685, and 6686. Thereafter, Judge Primitivo Blanca issued the warrants15 for the arrest of the petitioners.

On 1 October 1998, petitioners filed an Omnibus Motion to Quash, Recall Warrants of Arrest and/or For Reinvestigation.16 Petitioners insisted that they were denied due process because of the non-observance of the proper procedure on preliminary investigation prescribed in the Rules of Court. Specifically, they claimed that they were not afforded the right to submit their counter-affidavit. Then they argued that since no such counter-affidavit and supporting documents were submitted by the petitioners, the trial judge merely relied on the complaint-affidavit and attachments of the respondent in issuing the warrants of arrest, also in contravention with the Rules of Court. Petitioners further prayed that the information be quashed for lack of probable cause. Moreover, one of the accused, i.e., Ben Lim, Jr., is not even a director of Urban Bank, contrary to what complainant stated. Lastly, petitioners posited that the criminal cases should have been suspended on the ground that the issue being threshed out in the civil case is a prejudicial question.

In an Order17 dated 13 November 1998, the MTCC denied the omnibus motion primarily on the ground that preliminary investigation was not available in the instant case which fell within

33

the jurisdiction of the first-level court. The court, likewise, upheld the validity of the warrant of arrest, saying that it was issued in accordance with the Rules of Court. Besides, the court added, petitioners could no longer question the validity of the warrant since they already posted bail. The court also believed that the issue involved in the civil case was not a prejudicial question, and, thus, denied the prayer for suspension of the criminal proceedings. Lastly, the court was convinced that the Informations contained all the facts necessary to constitute an offense.

Petitioners immediately instituted a special civil action for Certiorari and Prohibition with Prayer for Writ of Preliminary Injunction and Temporary Restraining Order (TRO) before the Court of Appeals, ascribing grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the MTCC in issuing and not recalling the warrants of arrest, reiterating the arguments in their omnibus motion.18 They, likewise, questioned the courts conclusion that by posting bail, petitioners already waived their right to assail the validity of the warrants of arrest.

On 20 June 2000, the Court of Appeals dismissed the petition.19 Thus, petitioners filed the instant petition for review on certiorari under Rule 45 of the Rules of Court, raising the following issues:

A.

Where the offense charged in a criminal complaint is not cognizable by the Regional Trial Court and not covered by the Rule on Summary Procedure, is the finding of probable cause required for the filing of an Information in court?

If the allegations in the complaint-affidavit do not establish probable cause, should not the investigating prosecutor dismiss the complaint, or at the very least, require the respondent to submit his counter-affidavit?

B.

Can a complaint-affidavit containing matters which are not within the personal knowledge of the complainant be sufficient basis for the finding of probable cause?

C.

Where there is offense charged in a criminal complaint is not cognizable by the Regional Trial Court and not covered by the Rule on Summary Procedure, and the record of the preliminary investigation does not show the existence of probable cause, should not the judge refuse to issue a warrant of arrest and dismiss the criminal case, or at the very least, require the accused to submit his counter-affidavit in order to aid the judge in determining the existence of probable cause?

D.

Can a criminal prosecution be restrained?

E.

Can this Honorable Court itself determine the existence of probable cause?20

On the other hand, respondent contends that the issues raised by the petitioners had already become moot and academic when the latter posted bail and were already arraigned.

On 2 August 2000, this Court issued a TRO21 enjoining the judge of the MTCC from proceeding in any manner with Criminal Case Nos. 6683 to 6686, effective during the entire period that the case is pending before, or until further orders of, this Court.

We will first discuss the issue of mootness.

The issues raised by the petitioners have not been mooted by the fact that they had posted bail and were already arraigned.

It appears from the records that upon the issuance of the warrant of arrest, petitioners immediately posted bail as they wanted to avoid embarrassment, being then the officers of Urban Bank. On the scheduled date for the arraignment, despite the petitioners refusal to enter a plea, the court a quo entered a plea of "Not Guilty" for them.

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The erstwhile ruling of this Court was that posting of bail constitutes a waiver of any irregularity in the issuance of a warrant of arrest, that has already been superseded by Section 26, Rule 114 of the Revised Rule of Criminal Procedure. The principle that the accused is precluded from questioning the legality of the arrest after arraignment is true only if he voluntarily enters his plea and participates during trial, without previously invoking his objections thereto.22

As held in Okabe v. Hon. Gutierrez:23

It bears stressing that Section 26, Rule 114 of the Revised Rules on Criminal Procedure is a new one, intended to modify previous rulings of this Court that an application for bail or the admission to bail by the accused shall be considered as a waiver of his right to assail the warrant issued for his arrest on the legalities or irregularities thereon. The new rule has reverted to the ruling of this Court in People v. Red. The new rule is curative in nature because precisely, it was designed to supply defects and curb evils in procedural rules. Hence, the rules governing curative statutes are applicable. Curative statutes are by their essence retroactive in application. Besides, procedural rules as a general rule operate retroactively, even without express provisions to that effect, to cases pending at the time of their effectivity, in other words to actions yet undetermined at the time of their effectivity. Before the appellate court rendered its decision on January 31, 2001, the Revised Rules on Criminal Procedure was already in effect. It behoved the appellate court to have applied the same in resolving the petitioners petition for certiorari and her motion for partial reconsideration.

Moreover, considering the conduct of the petitioner after posting her personal bail bond, it cannot be argued that she waived her right to question the finding of probable cause and to assail the warrant of arrest issued against her by the respondent judge. There must be clear and convincing proof that the petitioner had an actual intention to relinquish her right to question the existence of probable cause. When the only proof of intention rests on what a party does, his act should be so manifestly consistent with, and indicative of, an intent to voluntarily and unequivocally relinquish the particular right that no other explanation of his conduct is possible. x x x.

Herein petitioners filed the Omnibus Motion to Quash, Recall Warrants of Arrest and/or For Reinvestigation on the same day that they posted bail. Their bail bonds likewise expressly contained a stipulation that they were not waiving their right to question the validity of their arrest.24 On the date of their arraignment, petitioners refused to enter their plea due to the fact that the issue on the legality of their arrest is still pending with the Court. Thus, when the court a quo entered a plea of not guilty for them, there was no valid waiver of their right to preclude them from raising the same with the Court of Appeals or this Court. The posting of bail bond was a matter of imperative necessity to avert their incarceration; it should not be deemed as a waiver of their right to assail their arrest. The ruling to which we have returned in People v. Red25 stated:

x x x The present defendants were arrested towards the end of January, 1929, on the Island and Province of Marinduque by order of the judge of the Court of First Instance of Lucena, Tayabas, at a time when there were no court sessions being held in Marinduque. In view of these circumstances and the number of the accused, it may properly be held that the furnishing of the bond was prompted by the sheer necessity of not remaining in detention, and in no way implied their waiver of any right, such as the summary examination of the case before their detention. That they had no intention of waiving this right is clear from their motion of January 23, 1929, the same day on which they furnished a bond, and the fact that they renewed this petition on February 23, 1929, praying for the stay of their arrest for lack of the summary examination; the first motion being denied by the court on January 24, 1929 (G.R. No. 33708, page 8), and the second remaining undecided, but with an order to have it presented in Boac, Marinduque.

Therefore, the defendants herein cannot be said to have waived the right granted to them by section 13, General Order No. 58, as amended by Act No. 3042.

The rest of the issues raised by the petitioners may be grouped into two, which are: (1) the procedural aspect, i.e., whether the prosecution and the court a quo properly observed the required procedure in the instant case, and, (2) the substantive aspect, which is whether there was probable cause to pursue the criminal cases to trial.

The procedural aspect:

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Petitioners contend that they were denied due process as they were unable to submit their counter-affidavits and were not accorded the right to a preliminary investigation. Considering that the complaint of Atty. Peña was filed in September 1998, the rule then applicable was the 1985 Rules of Criminal Procedure.

The provisions of the 1985 Rules of Criminal Procedure relevant to the issue are Sections 1, 3(a) and 9(a) of Rule 112, to wit:

Section 1. Definition. Preliminary investigation is 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.

Sec. 3. Procedure. Except as provided for in Section 7 hereof, no complaint or information for an offense cognizable by the Regional Trial Court shall be filed without a preliminary investigation having been first conducted in the following manner:

(a) The complaint shall state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents, in such number of copies as there are respondents, plus two (2) copies for the official file. The said affidavits shall be sworn to before any fiscal, state prosecutor or government official authorized to administer oath, or, in their absence or unavailability, a notary public, who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.

Sec. 9. Cases not falling under the original jurisdiction of the Regional Trial Courts nor covered by the Rule on Summary Procedure.

(a) Where filed with the fiscal. If the complaint is filed directly with the fiscal or state prosecutor, the procedure outlined in Section 3(a) of this Rule shall be observed. The fiscal shall take appropriate action based on the affidavits and other supporting documents submitted by the complainant. (underscoring supplied)

The crime to which petitioners were charged was defined and penalized under second paragraph of Article 172 in relation to Article 171 of the Revised Penal Code.

Art. 172. Falsification by private individual and use of falsified documents. The penalty of prision correccional in its medium and maximum periods and a fine of not more than P5,000 pesos shall be imposed upon:

1. Any private individual who shall commit any of the falsifications enumerated in the next preceding article in any public or official document or letter of exchange or any other kind of commercial document; and

2. Any person who, to the damage of a third party, or with the intent to cause such damage, shall in any private document commit any of the acts of falsification enumerated in the next preceding article.

Any person who shall knowingly introduce in evidence in any judicial proceeding or to the damage of another or who, with the intent to cause such damage, shall use any of the false documents embraced in the next preceding article or in any of the foregoing subdivisions of this article, shall be punished by the penalty next lower in degree.

Prision correccional in its medium and maximum periods translates to imprisonment of 2 years, 4 months and 1 day.26 The next lower in degree to prision correccional is arresto mayor in its maximum period to prision correccional in its minimum period which translates to 4 months and 1 day to 2 years and 4 months27 of imprisonment. Since the crime committed is not covered by the Rules of Summary Procedure,28 the case falls within the exclusive jurisdiction of the first level courts but applying the ordinary rules. In such instance, preliminary investigation as defined in Section 1, Rule 112 of the 1985 Rules of Criminal Procedure is not applicable since such section covers only crimes cognizable by the RTC. That which is stated in Section 9(a) is the applicable rule.

Under this Rule, while probable cause should first be determined before an information may be filed in court, the prosecutor is not mandated to require the respondent to submit his counter-affidavits to oppose the complaint. In the determination of probable

36

cause, the prosecutor may solely rely on the complaint, affidavits and other supporting documents submitted by the complainant. If he does not find probable cause, the prosecutor may dismiss outright the complaint or if he finds probable cause or sufficient reason to proceed with the case, he shall issue a resolution and file the corresponding information.

The complaint of respondent, verbatim, is as follows:

COMPLAINT AFFIDAVIT

I, MAGDALENO M. PEÑA, Filipino, of legal age, with address at Brgy. Ubay, Pulupandan, Negros Occidental, after having been sworn in accordance with law hereby depose and state:

1. I am the Plaintiff in Civil Case No. 754 pending with the Regional Trial Court of Bago City entitled "Atty. Magdaleno M. Peña v. Urban Bank, et al" Impleaded therein as defendants of the board of the bank, namely, Teodoro Borlongan, Delfin Gonzales, Jr., Benjamin De Leon, P. Siervo Dizon, Eric Lee, Ben Lim Jr., Corazon Bejasa and Arturo Manuel.(underlining ours)

2. I filed the said case to collect my fees as agent of Urban Bank, Inc.(hereinafter referred to as the "bank") in ridding a certain parcel of land in Pasay City of squatters and intruders. A certified true copy of the Complaint in the said case is hereto attached as Annex "A".

3. In the Motion to Dismiss dated 12 March 1996 (a certified true copy of which is attached as Annex "B"), Answer dated 28 October 1996 (Annex "C"), and Pre-Trial Brief dated 28 January 1997 (Annex "D") filed by the bank and the respondent members of the board, the said respondents used as evidence the following documents:

a. Letter dated 19 December 1994 supposedly signed by a certain Herman Ponce and Julie Abad for Isabela Sugar Company (ISC) (a copy of which is attached as Annex "E"), which states:

December 19, 1994Urban BankUrban Avenue, MakatiMetro Manila

Gentlemen:

This has reference to your property located among Roxas Boulevard, Pasay City which you purchased from Isabela Sugar Company under a Deed of Absolute Sale executed on December 1, 1994.

In line with our warranties as the Seller of the said property and our undertaking to deliver to you the full and actual possession and control of said property, free from tenants, occupants or squatters and from any obstruction or impediment to the free use and occupancy of the property and to prevent the former tenants or occupants from entering or returning to the premises. In view of the transfer of ownership of the property to Urban Bank, it may be necessary for Urban Bank to appoint Atty. Peña likewise as its authorized representative for purposes of holding/maintaining continued possession of the said property and to represent Urban Bank in any court action that may be instituted for the abovementioned purposes.

It is understood that any attorneys fees, cost of litigation and any other charges or expenses that may be incurred relative to the exercise by Atty. Peña of his abovementioned duties shall be for the account of Isabela Sugar Company and any loss or damage that may be incurred to third parties shall be answerable by Isabela Sugar Company.

Very truly yours,

Isabela Sugar Company

By:

HERMAN PONCEJULIE ABAD

b. Memorandum dated 7 December 1994 supposedly executed by a certain Marilyn Ong on behalf of ISC, a copy of which is hereto attached as annex "F", which states:

December 7, 1994

To: ATTY. CORA BEJASA

37

From: MARILYN G. ONG

RE: ISABELA SUGAR CO., INC.

Atty. Magdaleno M. Peña, who has been assigned by Isabela Sugar Company inc. to take charge of inspecting the tenants would like to request an authority similar to this from the Bank to new owners. Can you please issue something like this today as he (unreadable) this.

b. Letter dated 9 December 1994 supposedly executed by the same Marilyn Ong, a copy of which is hereto attached as Annex "G", which states:

December 9, 1994

Atty. Ted BorlonganURBAN BANK OF THE PHILIPPINESMAKATI, METRO MANILA

Attention: Mr. Ted Borlongan

Dear Mr. Borlongan

I would like to request for an authority from Urban Bank per attached immediately as the tenants are questioning authority of the people who are helping us to take possession of the property.

Marilyn Ong

c. Memorandum dated 20 November 1994, copy of which is attached as annex "H", which states:

MEMORANDUM

To: Atty. Magadaleno M. PeñaDirector

From: Enrique C. Montilla IIIPresident

Date: 20 November 1994

You are hereby directed to recover and take possession of the property of the corporation situated at Roxas Boulevard covered by TCT No. 5382 of the Registry of Deeds for Pasay City, immediately upon the expiration of the contract of lease over the said property on 29 November 1994. For this purpose, you are authorized to engage the services of security guards to protect the property against intruders. You may also engage the services of a lawyer in case there is a need to go to court to protect the said property of the corporation. In addition, you may take whatever steps or measures are necessary to ensure our continued possession of the property.

ENRIQUE C. MONTILLA IIIPresident

4. The respondent member of the board of the bank used and introduced the aforestated documents as evidence in the civil case knowing that the same are falsified. They used thae said documents to justify their refusal to pay my agents fees, to my damage and prejudice.

5. The 19 December 1994 letter (Annex E") is a falsified document, in that the person who supposedly executed the letter on behalf of ISC, a certain Herman Ponce and Julie Abad did not actually affix their signatures on the document. The execution of the letter was merely simulated by making it appear that Ponce and Abad executed the letter on behalf of ISC when they did not in fact do so.

6. No persons by the name of Herman Ponce and Julie Abad were ever stockholders, officers, employees or representatives of ISC. In the letter, Herman Ponce was represented to be the President of ISC and Julie Abad, the Corporate Secretary. However, as of 19 December 1994, the real President of plaintiff was Enrique Montilla, III and Cristina Montilla was the Corporate Secretary. A copy of the Minutes of the Regular Meeting of ISC for the year 1994, during which Montilla, et al. Were elected is hereto attached as Annex "I". On the otherhand, a list of the stockholders of ISC on or about the time of the transaction is attached as Annex "J".

7. The same holds true with respect to the Memorandum dated 7 December 1994 and athe letter dated 9 December 1994 allegedly written by a ceratin Marilyn Ong. Nobody by the said name was ever a stockholder of ISC.

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8. Lastly, with respect to the supposed Memorandum issued by Enrique Montilla, III his signature thereon was merely forged by respondents. Enrique Montilla III, did not affix his signature on any such document.

9. I am executing this affidavit for the purpose of charging Teodoro C. Borlongan, Corazon M. Bejasa and Arturo E. Manuel, Delfin C. Gonzales Jr., Benjamin L. De Leon, P. Siervo H. Dizon and Eric Lee, with the crime of use of falsified documents under Artilce 172, paragraph 2, of the Revised Penal Code.(underlining ours)

10. I am likewise executing this affidavit for whatever legal purpose it may serve.

FURTHER AFFIANT SAYETH NAUGHT.

Sgd. MAGDALENO M. PEÑA

It is evident that in the affidavit-complaint, specifically in paragraph 1, respondent merely introduced and identified "the board of the bank, namely, Teodoro Borlongan, Jr., Delfin Gonzales, Jr., Benjamin De Leon, P. Siervo Dizon, Eric Lee, Ben Lim, Jr., Corazon Bejasa and Arturo Manuel, Sr." However, in the accusatory portion of the complaint which is paragraph number 9, Mr. Ben Lim, Jr. was not included among those charged with the crime of use of falsified documents under Article 172, paragraph 2, of the Revised Penal Code. The omission indicates that respondent did not intend to criminally implicate Mr. Ben Lim, Jr., even as he was acknowledged to be a member of the board. And there was no explanation in the Resolution and Information by the City Prosecutor why Mr. Ben Lim, Jr. was included. Moreover, as can be gleaned from the body of the complaint and the specific averments therein, Mr. Ben Lim, Jr. was never mentioned.

The City Prosecutor should have cautiously reviewed the complaint to determine whether there were inconsistencies which ought to have been brought to the attention of the respondent or, on his own, considered for due evaluation. It is a big mistake to bring a man to trial for a crime he did not commit.

Prosecutors are endowed with ample powers in order that they may properly fulfill their assigned role in the administration of justice. It should be realized, however, that when a man is hailed to court on

a criminal charge, it brings in its wake problems not only for the accused but for his family as well. Therefore, it behooves a prosecutor to weigh the evidence carefully and to deliberate thereon to determine the existence of a prima facie case before filing the information in court. Anything less would be a dereliction of duty.29

Atty. Peña, in his Second Manifestation30 dated 16 June 1999, averred that petitioners, including Mr. Ben Lim, Jr., were already estopped from raising the fact that Mr. Ben Lim, Jr. was not a member of the board of directors of Urban Bank, as the latter participated and appeared through counsel in Civil Case No. 754 without raising any opposition. However, this does not detract from the fact that the City Prosecutor, as previously discussed, did not carefully scrutinize the complaint of Atty. Peña, which did not charge Mr. Ben Lim, Jr. of any crime.

What tainted the procedure further was that the Judge issued a warrant for the arrest of the petitioners, including, Mr. Ben Lim, Jr. despite the filing of the Omnibus Motion to Quash, Recall Warrants of Arrest and/or For Reinvestigation raising among others the issue that Mr. Ben Lim, Jr., was not even a member of the board of directors. With the filing of the motion, the judge is put on alert that an innocent person may have been included in the complaint. In the Order31 dated 13 November 1998, in denying the motion to quash, Judge Primitivo Blanca ruled that:

Courts in resolving a motion to quash cannot consider facts contrary to those alleged in the information or which do not appear on the face of the information because said motion is hypothethical admission of the facts alleged in the information x x x. (citations omitted.)

We cannot accept as mere oversight the mistake of respondent judge since it was at the expense of liberty. This cannot be condoned.

In the issuance of a warrant of arrest, the mandate of the Constitution is for the judge to personally determine the existence of probable cause:

Section 2, Article III of the Constitution provides:

39

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.

Corollary thereto, Section 9(b) of the 1985 Rules of Criminal Procedure provides:

Sec. 9. Cases not falling under the original jurisdiction of the Regional Trial Courts nor covered by the Rule on Summary Procedure.

(a) x x x.

(b) Where filed directly with the Municipal Trial Court. If the complaint or information is filed directly with the Municipal Trial Court, the procedure provided for in Section 3(a) of this Rule shall likewise be observed. If the judge finds no sufficient ground to hold the respondent for trial, he shall dismiss the complaint or information. Otherwise, he shall issue a warrant of arrest after personally examining in writing and under oath the complainant and his witnesses in the form of searching questions and answers.

Enshrined in our Constitution is the rule that "[n]o x x x 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 x x x the persons x x x to be seized."32 Interpreting the words "personal determination," we said in Soliven v. Makasiar33 that it does not thereby mean that judges are obliged to conduct the personal examination of the complainant and his witnesses themselves. To require thus would be to unduly laden them with preliminary examinations and investigations of criminal complaints instead of concentrating on hearing and deciding cases filed before them. Rather, what is emphasized merely is the exclusive and personal responsibility of the issuing judge to satisfy himself as to the existence of probable cause. To this end, he may: (a) personally evaluate the report and the supporting documents submitted by the prosecutor regarding the existence of probable cause and, on the basis thereof, issue a

warrant of arrest; or (b) if on the basis thereof he finds no probable cause, disregard the prosecutor's report and require the submission of supporting affidavits of witnesses to aid him in determining its existence. What he is never allowed to do is to follow blindly the prosecutor's bare certification as to the existence of probable cause. Much more is required by the constitutional provision. Judges have to go over the report, the affidavits, the transcript of stenographic notes if any, and other documents supporting the prosecutor's certification. Although the extent of the judge's personal examination depends on the circumstances of each case, to be sure, he cannot just rely on the bare certification alone but must go beyond it. This is because the warrant of arrest issues not on the strength of the certification standing alone but because of the records which sustain it.34 He should even call for the complainant and the witnesses to answer the court's probing questions when the circumstances warrant.35

An arrest without a probable cause is an unreasonable seizure of a person, and violates the privacy of persons which ought not to be intruded by the State.36

Measured against the constitutional mandate and established rulings, there was here a clear abdication of the judicial function and a clear indication that the judge blindly followed the certification of a city prosecutor as to the existence of probable cause for the issuance of a warrant of arrest with respect to all of the petitioners. The careless inclusion of Mr. Ben Lim, Jr., in the warrant of arrest gives flesh to the bone of contention of petitioners that the instant case is a matter of persecution rather than prosecution.37 On this ground, this Court may enjoin the criminal cases against petitioners. As a general rule, criminal prosecutions cannot be enjoined. However, there are recognized exceptions which, as summarized in Brocka v. Enrile,38 are:

a. To afford adequate protection to the constitutional rights of the accused;39

b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions;40

c. When there is a prejudicial question which is sub judice;41

40

d. When the acts of the officer are without or in excess of authority;42

e. Where the prosecution is under an invalid law, ordinance or regulation;43

f. When double jeopardy is clearly apparent;44

g. Where the court had no jurisdiction over the offense;45

h. Where it is a case of persecution rather than prosecution;46

i. Where the charges are manifestly false and motivated by the lust for vengeance;47 and

j. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied.48

The substantive aspect:

Petitioners were charged with violation of par. 2, Article 172 of the Revised Penal Code or Introduction of Falsified Document in a

judicial proceeding. The elements of the offense are as follows:

1. That the offender knew that a document was falsified by another person.

2. That the false document is embraced in Article 171 or in any subdivisions Nos. 1 or 2 of Article 172.

3. That he introduced said document in evidence in any judicial proceeding.49

The falsity of the document and the defendants knowledge of its falsity are essential elements of the offense. The Office of the City Prosecutor filed the Informations against the petitioners on the basis of the Complaint-Affidavit of respondent Atty. Peña, attached to which were the documents contained in the Motion to Dismiss filed by the petitioners in Civil Case No. 754. Also included as attachments to the complaint were the Answers, Pre-Trial Brief, the

alleged falsified documents, copy of the regular meetings of ISCI during the election of the Board of Directors and the list of ISCI Stockholders.50 Based on these documents and the complaint-affidavit of Atty. Peña, the City Prosecutor concluded that probable cause for the prosecution of the charges existed. On the strength of the same documents, the trial court issued the warrants of arrest.

This Court, however, cannot find these documents sufficient to support the existence of probable cause.

Probable cause is such set of facts and circumstances as would lead a reasonably discreet and prudent man to believe that the offense charged in the Information or any offense included therein has been committed by the person sought to be arrested. In determining probable cause, the average man weighs the facts and circumstances without restoring to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense. A finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has been committed and that it was committed by the accused. Probable cause demands more than suspicion; it requires less than evidence that would justify conviction.51

As enunciated in Baltazar v. People,52 the task of the presiding judge when the Information is filed with the court is first and foremost to determine the existence or non-existence of probable cause for the arrest of the accused.

The purpose of the mandate of the judge to first determine probable cause for the arrest of the accused is to insulate from the very start those falsely charged with crimes from the tribulations, expenses and anxiety of a public trial.53

We do not see how it can be concluded that the documents mentioned by respondent in his complaint-affidavit were falsified. In his complaint, Atty. Peña stated that Herman Ponce, Julie Abad and Marilyn Ong, the alleged signatories of the questioned letters, did not actually affix their signatures therein; and that they were not actually officers or stockholders of ISCI.54 He further claimed that Enrique Montillas signature appearing in another memorandum addressed to respondent was forged.55 These averments are mere assertions which are insufficient to warrant the filing of the complaint or worse the issuance of warrants of arrest. These averments cannot be considered as proceeding from the

41

personal knowledge of herein respondent who failed to, basically, allege that he was present at the time of the execution of the documents. Neither was there any mention in the complaint-affidavit that herein respondent was familiar with the signatures of the mentioned signatories to be able to conclude that they were forged. What Atty. Peña actually stated were but sweeping assertions that the signatories are mere dummies of ISCI and that they are not in fact officers, stockholders or representatives of the corporation. Again, there is no indication that the assertion was based on the personal knowledge of the affiant.

The reason for the requirement that affidavits must be based on personal knowledge is to guard against hearsay evidence. A witness, therefore, may not testify as what he merely learned from others either because he was told or read or heard the same. Such testimony is considered hearsay and may not be received as proof of the truth of what he has learned.56 Hearsay is not limited to oral testimony or statements; the general rule that excludes hearsay as evidence applies to written, as well as oral statements.57

The requirement of personal knowledge should have been strictly applied considering that herein petitioners were not given the opportunity to rebut the complainants allegation through counter-affidavits.

Quite noticeable is the fact that in the letter dated 19 December 1994 of Herman Ponce and Julie Abad, neither of the two made the representation that they were the president or secretary of ISCI. It was only Atty. Peña who asserted that the two made such representation. He alleged that Marilyn Ong was never a stockholder of ISCI but he did not present the stock and transfer book of ISCI. And, there was neither allegation nor proof that Marilyn Ong was not connected to ISCI in any other way. Moreover, even if Marilyn Ong was not a stockholder of ISCI, such would not prove that the documents she signed were falsified.

The Court may not be compelled to pass upon the correctness of the exercise of the public prosecutors function without any showing of grave abuse of discretion or manifest error in his findings.58 Considering, however, that the prosecution and the court a quo committed manifest errors in their findings of probable cause, this Court therefore annuls their findings.

Our pronouncement in Jimenez v. Jimenez59 as reiterated in Baltazar v. People is apropos:

It is x x x imperative upon the fiscal or the judge as the case may be, to relieve the accused from the pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused. Although there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear dictates of reasons. The judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold. It bears repeating that the judiciary lives up to its mission by visualizing and not denigrating constitutional rights. So it has been before. It should continue to be so.

On the foregoing discussion, we find that the Court of Appeals erred in affirming the findings of the prosecutor as well as the court a quo as to the existence of probable cause. The criminal complaint against the petitioners should be dismissed.

WHEREFORE, the petition is hereby GRANTED. The Decision of the Court of Appeals dated 20 June 2000, in CA-G.R. SP No. 49666, isREVERSED and SET ASIDE. The Temporary Restraining Order dated 2 August 2000 is hereby made permanent. Accordingly, the Municipal Trial Court in Cities, Negros Occidental, Bago City, is hereby DIRECTED to DISMISS Criminal Case Nos. 6683, 6684, 6685 and 6686.

SO ORDERED.

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PEOPLE OF THE PHILIPPINES,

vsJOSELITO NOQUE y GOMEZ,  G.R. No. 175319January 15, 2010

D E C I S I O N DEL CASTILLO, J.: 

            The illicit trade and use of dangerous drugs destroys the moral

fiber of society. It has eroded and disrupted family life, increased the

transmission of sexually related diseases, resulted in permanent and

fatal damage to the physical and mental health, and wasted dreams,

opportunities and hopes for a better future. As an ardent sentinel of the

people’s rights and welfare, this Court shall not hesitate to dispense

justice on people who engage in such an activity.[1]  The commitment to

this end is exemplified in this appeal. 

 

The Charges

 

            The appeal stems from two Informations filed before the

Regional Trial Court (RTC) of Manila, which were subsequently docketed

as Criminal Case Nos. 01-189458 and 01-189459, and raffled to Branch

35 of said court.  The Information in Criminal Case No. 01-189458

charging appellant Joselito Noque y Gomez with violation of Section 15,

Article III in relation to Section 21 (e), (f), (m), (o), Article 1 of Republic Act

(RA) No. 6425, as amended by Presidential Decree (PD) No. 1683 and as

further amended by RA 7659 reads: 

            That on or about January 30, 2001, in the City of Manila, Philippines, the said accused, not having been authorized by law to sell, dispense, deliver, transport or distribute any regulated drug, did then and there willfully, unlawfully and knowingly sell or offer for sale, dispense,

43

deliver, transport or distribute 2.779 (two point seven seven nine grams) and 2.729 (two point seven two nine grams) of white crystalline substance known as ‘shabu’ containing methamphetamine hydrochloride, which is a regulated drug.                 Contrary to law.[2]

           

            On the other hand, the Information in Criminal Case No. 01-

189459 contains the following accusatory allegations for violation of

Section 16, Article III in relation to Section 2 (e-2) Article I of RA 6425 as

amended by Batas Pambansa (BP) Bilang 179 and as further amended

by RA 7659: 

            That on or about January 30, 2001, in the City of Manila, Philippines, the said accused without being authorized by law to possess or use any regulated drug, did then and there willfully, unlawfully and knowingly have in his possession and under his custody and control (six seven nine point two one five grams) 679.215 grams of white crystalline substance known as ‘shabu’ containing methamphetamine hydrochloride, a regulated drug, without the corresponding license or prescription thereof.                 Contrary to law.[3]

 

            During his arraignment on July 23, 2001, appellant pleaded not

guilty to both charges.  Pre-trial conference was conducted and upon its

termination a joint trial ensued.

 

Version of the Prosecution

 

            At 9 o’clock in the evening of January 30, 2001, a confidential

informant of

Senior Police Officer 4 (SPO4) Norberto Murillo, went to Police Station No.

4 of the Western Police District (WPD) to tip off on the drug trafficking

activities of the appellant in Malate, Manila.  SP04 Murillo immediately

directed Police Officers (POs) Christian Balais (Balais) and Dionisio Borca

(Borca) to conduct surveillance in the area mentioned by the

informant.  The surveillance confirmed appellant’s illegal operations

being conducted at No. 630 San Andres Street,

Malate, Manila.  Thereafter, SP04 Murillo formed and led a buy-bust

team with POs Balais, Borca, Ramon Pablo, Roberto Godoy, Edgardo

Book, Bernard Mino, Rodante Bollotano, and Melchor Barolo as

members.  PO1 Balais was designated as poseur-buyer and was

provided with 10 pieces of 100 peso bills as buy-bust money.

 

            The buy-bust team, together with the informant, proceeded to

the aforementioned address and upon arrival thereat, positioned

themselves outside the appellant’s house.  PO1 Balais and the informant

thereafter called out the appellant, who welcomed the two and brought

them to his bedroom.  The informant asked the appellant if he

had P1,000.00 worth of methamphetamine hydrochloride or “shabu”

then pointed to PO1 Balais as the actual buyer.  When PO1 Balais

handed the marked money to the appellant, the latter brought out from

under a table a “pranela” bag from which he took two plastic sachets

containing white crystalline granules suspected to be shabu.   The

informant slipped out of the house as the pre-arranged signal to the buy-

bust team that the sale had been consummated.

 

            After seeing the informant leave, the team entered appellant’s

house.  SPO4 Murillo frisked the appellant and recovered the buy-bust

44

money. He also confiscated the “pranela” bag that contained a large

quantity of crystalline granules suspected to be shabu.  The two persons

who were in a “pot session” with the appellant at the time of the raid

were likewise arrested and brought to the WPD Station No. 9 for

investigation.

 

            The seized articles were taken to the police station and

submitted to the crime laboratory for examination to determine the

chemical composition of the crystalline substance.  Police Inspector

(P/Insp.) and Forensic Chemical Officer Miladenia Tapan examined one

self-sealing transparent plastic bag with markings “JNG” containing

679.215 grams of white crystalline granules; and two heat-sealed

transparent plastic sachets each containing white crystalline substance,

pre-marked “JNG-1” weighing 2.779 grams and “JNG-2”weighing 2.729

grams.  The qualitative examinations yielded positive results for

ephedrine, a regulated drug. 

           

Version of the Defense

 

            The appellant gave a different version of the events that

transpired.  He testified that he was in his house in the evening

of January 23, 2001 when six policemen led by SPO4 Murillo entered and

arrested an unidentified occupant of the room next to his. The arresting

team returned after 30 minutes and apprehended another

person.  When they came back the third time, they took him with them

to WPD Station No. 9 where his wallet, belt and shoes were taken.  While

under detention, SPO4 Murillo ordered him to admit selling illegal

substances but he refused.  He was released on January 26, 2001 only to

be rearrested at around 9 o’clock in the evening on January 30,

2001 when SPO4 Murillo and his team returned to his house and took

him at gunpoint to the police station where he was detained for 24

hours.  Police officers presented him later to Mayor Lito Atienza and

General Avelino Razon for a press conference.

 

Ruling of the Regional Trial Court

 

            In its Decision[4] dated February 28, 2003, the trial court

convicted the appellant of both charges.  It declared that the evidence

adduced by the prosecution established with moral certainty his guilt for

committing the crimes in the manner narrated in the Informations.  The

testimonies of police officers that they caught appellant in flagrante

delicto of selling and possessing a dangerous drug are clear and positive

evidence that deserve more evidentiary weight than appellant’s

defenses of denial and frame-up, which are mere negative and self-

serving assertions unsubstantiated by clear and convincing

evidence.  The trial court also ruled that it cannot deviate from the

presumption of regularity in the performance of duty on the part of the

police officers since no ill motives were ascribed to them that would

entice them to testify falsely against the appellant.       

 

            The trial court also held that while the Informations alleged

methamphetamine hydrochloride as the drug seized from the appellant,

the drug actually confiscated which was ephedrine, is a precursor of

methamphetamine, i.e., methamphetamine is an element of, and is

present in ephedrine.  Ephedrine is the raw material while

methamphetamine is its refined product.  Both drugs have the same

45

chemical formula except for the presence of a single atom of oxygen

which when removed by means of chemical reaction changes ephedrine

to methamphetamine. Thus, the trial court ruled that the appellant can

be convicted of the offenses charged, which are included in the crimes

proved.  The trial court further held that under Section 4, Rule 120 of the

Rules of Court, a variance in the offense charged in the complaint or

information and that proved shall result in the conviction for the offense

charged which is included in the offense proved.

 

            In determining the quantity of methamphetamine hydrochloride

upon which the proper imposable penalty on the appellant must be

based, the trial court gave credence to the testimony of prosecution

witness, P/Insp. Tapan that a gram of ephedrine would produce ½ gram

of methamphetamine when refined.[5]

 

            Conformably, the methamphetamine contents of 5.508

grams[6] of ephedrine in Criminal Case No. 01-189458 would be 2.754

grams.  Moreover, the methamphetamine contents of 679.215 grams of

ephedrine in Criminal Case No. 01-189459 would be 339.6075 grams. 

             

The dispositive portion of the Decision of the trial court reads:  

WHEREFORE, judgment is rendered: In Criminal Case No. 01-189458, pronouncing

accused JOSELITO NOQUE y GOMEZ guilty beyond reasonable doubt of selling a net quantity of 2.754 grams of methamphetamine  hydrochloride without authority of law, penalized under Section 15 in relation to Section 20 of Republic Act No. 6425, as amended, and sentencing the said accused to the indeterminate penalty ranging from four (4) years and two (2) months of prision

correccional, as minimum, to six (6) years and one (1) day of prision mayor, as maximum, and to pay the costs.

 In Criminal Case No. 01-189459, pronouncing the

same accused JOSELITO NOQUE y GOMEZ guilty beyond reasonable doubt of possession of a net quantity of 339.6075 grams of methamphetamine hydrochloride without license or prescription, penalized under Section 16 in relation to Section 20 of Republic Act No. 6425, as amended, and sentencing the said accused to the penalty of reclusion perpetua and to pay a fine of P5,000,000.00, plus the costs.

 In the service of his sentences, the full time

during which the accused had been under preventive imprisonment should be credited in his favor provided that he had agreed voluntarily in writing to abide with the same disciplinary rules imposed on convicted prisoner.  Otherwise, he should be credited with four-fifths (4/5) only of the time he had been under preventive imprisonment.

 Exhibits “B” and “C” are ordered confiscated and

forfeited in favor of the government.  Within ten (10) days following the promulgation of this judgment, the Branch Clerk of this Court, is ordered to turn over, under proper receipt, the regulated drug involved in these cases to the Philippine Drug Enforcement Agency (PDEA) for proper disposal.

 SO ORDERED.[7]

              Ruling of the Court of Appeals  

The CA affirmed the trial court’s judgment.  It held that the

designations in the Informations are for violations of Sections 15 and 16

of RA 6425 that define and penalize the crimes of illegal sale and illegal

possession of regulated drugs.  While the allegations in the Informations

refer to unauthorized sale and possession of “shabu” or

46

methamphetamine hydrochloride, and not of ephedrine, the allegations

are however immediately followed by the qualifying phrase “which is a

regulated drug.”  Stated differently, the CA held that the designations

and allegations in the informations are for the crimes of illegal sale and

illegal possession of regulated drugs.  There being no dispute that

ephedrine is a regulated drug, pursuant to Board Resolution No. 2, Series

of 1988, issued by the Dangerous Drugs Board on March 17, 1988, the

CA ruled that the appellant is deemed to have been sufficiently informed

of the nature of the crime with which he is accused. The fact that the

chemical structures of ephedrine and methamphetamine are the same

except for the presence of an atom of oxygen in the former strengthens

this ruling.[8]

                       

However, the CA modified the penalty imposed by the trial court

in Criminal Case No. 01-189458.  It held that in the absence of any

mitigating or aggravating circumstances in this case, the penalty should

be imposed in its medium period, ranging from six months of arresto

mayor, as minimum, to two years, four months and one day of prision

correccional, as maximum.  Thus, the dispositive portion of the Decision

of the CA reads: 

            WHEREFORE, premises considered, the February 28, 2003 Decision of the Regional Trial Court of Manila, Branch 35, is hereby AFFIRMED with the MODIFICATION that in Criminal Case No. 01-189458, accused-appellant is hereby sentenced to suffer the indeterminate penalty of six (6) months of arresto mayor, as minimum, to two (2) years, four (4) months and one (1) day of prision correccional, as maximum.                 SO ORDERED.[9]

 

Our Ruling

 

            The appeal is bereft of merit.

 The prosecution’s evidence satisfactorily proved that appellant is guilty of illegal sale of a dangerous drug.  

            The prosecution successfully proved that appellant violated

Section 15, Article III of RA 6425.  The prosecution’s evidence established

the concurrence of the elements of an illegal sale of a dangerous drug, to

wit: (1) the identity of the buyer and seller, object, and consideration; and

(2) the delivery of the thing sold and the payment therefor.[10]  

 

            In the instant case, the police officers conducted a buy-bust

operation after receiving confirmed surveillance reports that the

appellant was engaged in the illicit sale of dangerous drugs at No. 630

San Andres Street, Malate, Manila.   PO1 Balais, the designated poseur-

buyer of the buy-bust team, personally identified the appellant as the

person who volunteered to sell to him P1,000.00 worth of white

crystalline substance alleged to be shabu.  The police officer received

this illegal merchandise after giving the appellant the marked money as

payment.  Undoubtedly, the appellant is guilty of selling a dangerous

drug.

 The prosecution’s evidence satisfactorily

47

proved that appellant illegally possessed a dangerous drug.  

            The prosecution was also successful in proving that appellant

violated Section 16, Article III of RA 6425.  It adduced evidence that

established the presence of the elements of illegal possession of a

dangerous drug.  It showed that (1) the appellant was in possession of an

item or an object identified to be a prohibited or regulated drug, (2) such

possession is not authorized by law, and (3) the appellant was freely and

consciously aware of being in possession of the drug.[11]

 

            The police buy-bust team apprehended the appellant for the sale

of a white crystalline substance then proceeded to search the

premises.   They found a large quantity of the same substance inside the

bag that contained the two sachets of the regulated drug sold to PO1

Balais.  Appellant did not offer any explanation why he is in custody of

the said substance.  Neither did the appellant present any authorization

to possess the same.  “Mere possession of a regulated drug per

seconstitutes prima facie evidence of knowledge or animus

possidendi sufficient to convict an accused absent a satisfactory

explanation of such possession – the onus probandi is shifted to the

accused, to explain the absence of knowledge or animus

possidendi.”[12]   With the burden of evidence shifted to the appellant, it

was his duty to explain his innocence on the regulated drug seized from

his person.  However, as already mentioned, he did not offer any excuse

or explanation regarding his possession thereof.

 

There is no evidence showing that the police officers are actuated by ill motives.  

            Likewise to be considered against the appellant is his failure to

present evidence imputing evil motive on the part of the police officers

who participated in the entrapment operation to testify falsely against

him.  “Where there is no evidence that the principal witness of the

prosecution was actuated by ill or devious motive, the testimony is

entitled to full faith and credit.”[13]

 Appellant’s right to be informed of the nature and cause of the accusations was not violated.  

            The only issue raised by the appellant in this petition is that his

conviction for the sale and possession of shabu, despite the fact that

what was established and proven was the sale and possession of

ephedrine, violated his constitutional right to be informed of the nature

and cause of the accusations against him since the charges in the

Informations are for selling and possessing methamphetamine

hydrochloride.

 

We agree with the findings of the CA and the trial court, as well

as the testimony of the forensic chemical officer, that the drug known as

ephedrine has a central nervous stimulating effect similar to that of

methamphetamine.  In fact, ephedrine is an important precursor used in

48

the clandestine synthesis of methamphetamine, which in crystallized

form is methamphetamine hydrochloride. 

 

Thus, on March 17, 1988, pursuant to Section 20(8) of RA 6425,

as amended, the Dangerous Drugs Board in its Board Regulation No. 2,

S. 1988, classified as regulated drug all raw materials of ephedrine, as

well as preparations containing the said drug.  The chemical formula of

ephedrine is C10 H15 NO, whereas that of methamphetamine is C10 H15

N.  The only difference between ephedrine and methamphetamine is the

presence of a single atom of oxygen in the former.  The removal of the

oxygen in ephedrine will produce methamphetamine.  With ephedrine

containing fifty percent (50%) of methamphetamine hydrochloride if the

oxygen content in the former is removed, the nearly 680 grams of

ephedrine seized from the appellant contains about 340 grams of

methamphetamine hydrochloride.

                       

Moreover, as correctly observed by CA, the offenses designated

in the Informations are for violations of Sections 15 and 16 of RA 6425,

which define and penalize the crimes of illegal sale and possession of

regulated drugs.  The allegations in the Informations for the

unauthorized sale and possession of “shabu” or methamphetamine

hydrochloride are immediately followed by the qualifying phrase “which

is a regulated drug”.  Thus, it is clear that the designations and

allegations in the Informations are for the crimes of illegal sale and illegal

possession of regulated drugs.  Ephedrine has been classified as a

regulated drug by the Dangerous Drugs Board in Board Resolution No. 2,

Series of 1988. 

 

            The CA correctly ruled that Sections 4 and 5, Rule 120 of the

Rules of Court,[14] can be applied by analogy in convicting the appellant of

the offenses charged, which are included in the crimes proved.  Under

these provisions, an offense charged is necessarily included in the

offense proved when the essential ingredients of the former constitute or

form part of those constituting the latter.  At any rate, a minor variance

between the information and the evidence does not alter the nature of

the offense, nor does it determine or qualify the crime or penalty, so that

even if a discrepancy exists, this cannot be pleaded as a ground for

acquittal.[15]   In other words, his right to be informed of the charges

against him has not been violated because where an accused is charged

with a specific crime, he is duly informed not only of such specific crime

but also of lesser crimes or offenses included therein.[16]

 The Penalties

 

          In Criminal Case No. 01-189458, appellant is found guilty of

violation of Section 15, Article III of RA 6425, as amended.  We

explained in Peoplev. Isnani[17] that: 

Under Section 15, Article III in relation to the second paragraph of Sections 20 and 21 of Article IV of Republic Act No. 6425, as amended by Section 17 of R.A. No. 7659, the imposable penalty of illegal sale of a regulated drug (shabu), less than 200 grams, as in this case, is prision correccional to reclusion perpetua.  Based on the quantity of the regulated drug subject of the offense, the imposable penalty shall be as follows:

           QUANTITY                                     IMPOSABLE PENALTY Less than one (1) gram      to 49.25 grams                                                 prision correccional

49

          49.26 grams to 98.50 grams                          prision mayor      98.51 grams to 147.75 grams                      reclusion temporal       147.76 grams to 199 grams                       reclusion perpetua

 The quantity of shabu involved is 0.060

grams.  Pursuant to the second paragraph of Sections 20 and 21 of Article IV of R.A. No. 6425, as amended by Section 17 of R.A. No. 7659 (for unauthorized sale of less than 200 grams of shabu) and considering our ruling in the above case, the imposable penalty is prision correccional.

 Applying the Indeterminate Sentence Law, and

there being no aggravating or mitigating circumstance that attended the commission of the crime, the maximum period is prision correccional in its medium period which has a duration of 2 years, 4 months and 1 day to 4 years and 2 months.  The minimum period is within the range of the penalty next lower in degree which is arresto mayor, the duration of which is 1 month and 1 day to 6 months.  Hence, appellant should be sentenced to 6 months of arresto mayor, as minimum, to 2 years, 4 months and 1 days of prision correctional in its medium period, as maximum.

 

In Criminal Case No. 01-189458, the quantity of the prohibited

drug seized from appellant is 2.754 grams.  Accordingly, the Court of

Appeals correctly modified the penalty imposed by the trial court to six

months of arresto mayor, as minimum, to two years,  four months and

one day of prision correccional, as maximum.

 

As regards Criminal Case No. 01-189459, Section 16, Article III of

RA 6425, as amended, provides for the penalty of reclusion perpetua to

death and a fine ranging from P500,000.00 to P10 million upon any

person who shall possess or use any regulated drug without the

corresponding license or prescription.  Section 20 of RA 6425, as

amended, further provides that the penalty imposed for the offense

under Section 16, Article III shall be applied if the dangerous drug

involved is 200 grams or more of shabu.  In this case, the appellant was

found in illegal possession of 339.6075 grams of prohibited

drug.  Therefore, both the trial court and the Court of Appeals correctly

imposed the penalty of reclusion perpetua and a fine of P500,000.00 to

appellant.

 

WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR-

H.C. No. 00684 is AFFIRMED.

 

SO ORDERED.   

50

SAMUEL U. LEE and MAYBELLE LEE LIMvsKBC BANK N.V.,                                       G.R. No. 164673January 15, 2010               

D E C I S I O N 

CARPIO, J.:

The Case

 

         This is a petition[1] for review on certiorari under Rule 45 of

the Rules of Court.  The petition challenges the 10 February 2004

Decision[2] and 27 July 2004 Resolution[3] of the Court of Appeals in

CA-G.R. SP No. 78004.  The Court of Appeals set aside the 26 March

2003 Order[4] of the Regional Trial Court (RTC), National Capital

Judicial Region, Branch 58, Makati City, in Criminal Case Nos. 02-

344-45.

The Facts

 

                  Midas Diversified Export Corporation (MDEC) obtained a

$1,400,000 loan from KBC Bank N.V. (KBC Bank).     KBC Bank is a

Belgian   corporation licensed to do business in the Philippines.     On

12 August 1997, Samuel U. Lee (Lee), assistant treasurer and

director of MDEC, executed a promissory note in favor of KBC Bank

and a deed of assignment transferring all of MDEC’s rights over

Confirmed Purchase Order No. MTC-548 to KBC Bank.     Confirmed

Purchase Order No. MTC-548 was allegedly dated 15 July 1997,

issued by Otto Versand, a company based in Germany, and

covered a shipment of girl’s basic denim jeans amounting to

$1,863,050.

          MDEC obtained another loan, amounting to $65,000, from KBC Bank.  On 14 November 1997, Maybelle L. Lim (Lim), treasurer and assistant secretary of MDEC, executed a promissory note in favor of KBC Bank and a deed of assignment transferring all of MDEC’s rights over Confirmed Purchase Order No. WC-128 to KBC Bank.  Confirmed Purchase Order No. WC-128 was allegedly dated 1 October 1997, issued by Otto Versand, and covered a shipment of boy’s bermuda jeans amounting to $841,500.          On 23 December 1997, Lim renewed the 12 August 1997 promissory note and issued a notice of renewal and drawdown certificate to KBC Bank.  On 29 December 1997, Lim executed an amended deed of assignment transferring all of MDEC’s rights over Confirmed Purchase Order No. MTC-548 to KBC Bank.

51

             MDEC was considered in default in paying the $65,000 loan on 30 January 1998.  Under a facility agreement between KBC Bank and MDEC, any default in payment of any obligation under the agreement would render MDEC in default with regard to the $65,000 loan — MDEC defaulted in paying two other obligations under the agreement.  MDEC also failed to pay the $1,400,000 loan when it became due on 9 February 1998.          On 17 March 1998, KBC Bank sent a letter to Otto Versand verifying the validity of Confirmed Purchase Order Nos. MTC-548 and WC-128.  On 19 March 1998, Otto Versand sent a facsimile message to KBC Bank stating that (1) it did not issue the purchase orders, (2) it did not order or receive the items covered by the purchase orders, and (3) it would not pay MDEC any amount.          In a complaint-affidavit[5] dated 21 April 1998, Liza M. Pajarillo, manager of the corporate division of KBC Bank, charged Lee and Lim of estafa.  In his Resolution[6] dated 27 November 2001, State Prosecutor Josefino A. Subia (State Prosecutor Subia) found the existence of probable cause and recommended that two counts of estafa be filed against Lee and Lim.  State Prosecutor Subia stated that:

          After a careful evaluation of the evidence presented by the Bank, as well as of the respondents, we find the existence of a probable cause to indict respondents Samuel Lee and Maybelle Lee Lim.         It is an established fact that the confirmed purchase order nos. MTC-548 and WC-128 presented with the Bank by the Midas thru respondents Samuel Lee and Maybelle Lee Lim were false and spurious, having been unequivocably repudiated and/or disowned by Otto Versand, Germany, the foreign buyer who allegedly issued the same, as evidenced by a telefax message sent to the Bank by Otto Versand.  Evidently, respondent Samuel Lee signed the following documents, to wit: the  “conforme” portion of the US$2.0 million short-term trade facility,

the promissory note and the corresponding deed of assignment both dated August 12, 1997, covering the confirmed purchase order no[.] MTC-548, while respondent Maybelle Lee Lim signed in the promissory note and the corresponding deed of assignment both dated Nov. 14, 1997, the renewed promissory note and the notice of renewal and drawdown certificate both dated Dec. 23, 1997.  Respondents Samuel Lee and Maybelle Lee Lim, thus cannot escape indictment, aside from signing those relevant loan documents, as they also clearly helped one another in fraudulently representing to the Bank that indeed said confirmed two (2) purchased [sic] orders does [sic] exists [sic] and that Midas have [sic] their [sic] rights, titles and interests thereto.  With their fraudulent representation, they were able to entice or induce the Bank to extend [to] them the loan of USD$1.4 million and USD$ 65,000 under the short-term trade facility previously granted to them.[7]   

 

         Accordingly, two informations for estafa against Lee and Lim

were filed with the RTC.  After finding probable cause, Judge

Winlove M. Dumayas (Judge Dumayas) of the RTC issued warrants

of arrest against Lee and Lim.           Lee and Lim filed a petition[8] for review dated 26 April 2002 with the Department of Justice.  Lee and Lim challenged State Prosecutor Subia’s 27 November 2001 Resolution and 17 April 2002 Order denying their motion for reconsideration.  They claimed that:

 I.  THE RESOLUTIONS OF 27 NOVEMBER 2001

AND 17  APRIL 2002 MERELY RELIED ON HEARSAY EVIDENCE WHICH CANNOT BE THE BASIS FOR A FINDING OF A PROBABLE CAUSE.

 II. THE ASSAILED RESOLUTIONS WERE ISSUED

BASED ONLY ON THE UNCORROBORATED ALLEGATIONS OF PAJARILLO THAT LEE AND

52

LIM MADE FRAUDULENT REPRESENTATIONS TO [KBC BANK].

 III.   THE ASSAILED RESOLUTIONS ERRED IN

HOLDING LEE AND LIM TO BE CRIMINALLY LIABLE DESPITE THE TWO LOANS CREATING MERELY CIVIL LIABILITY ON THE PART OF MIDAS.[9]

  

         In his Resolution[10] dated 12 July 2002, Secretary Hernando B.

Perez (Secretary Perez) directed the withdrawal of the informations

filed against Lee and Lim.  Secretary Perez held that the facsimile

message constituted hearsay evidence:

          The twin charges of estafa are primarily anchored on respondents’ alleged fraudulent representations to [KBC Bank] that the two purchase orders were fake or sham.  To prove this point, Ms. Pajarillo of [KBC Bank] claims that she received a fax message from a representative of Otto Versand, stating that the latter company did not issue the purchase orders mentioned.  There was no sworn statement from a responsible officer of Otto Versand presented to attest to the allegation that the subject purchase orders were fake.  Since Ms. Pajarillo did not have personal knowledge of the fact that the subject purchase orders were in fact fake, her testimony cannot be the basis for finding probable cause against respondents.  Ms. Pajarillo can testify only to those facts that she knew of her personal knowledge.  Admittedly, she derived knowledge of the supposed spurious character of the purchase orders from a mere fax copy of a message that [KBC Bank] received from a certain representative of Otto Versand in Germany, someone who she did not even know personally.  Unfortunately, this fax copy is hearsay evidence and therefore, inadmissible to prove the truth of what it contains (Pastor vs. Gaspar, 2 Phil 592).[11]  (Emphasis supplied)

 

         KBC Bank filed a motion[12] for reconsideration dated 2 August

2002 with the Department of Justice.          Lee and Lim had not been arraigned.  In a motion[13] dated 18 October 2002 and filed with the RTC, Assistant City Prosecutor Nora C. Sibucao (Assistant City Prosecutor Sibucao) prayed for the withdrawal of the informations filed against Lee and Lim.  Assistant City Prosecutor Sibucao stated that:

          The Prosecution, through the undersigned Trial Prosecutor, unto the Honorable Court, most respectfully moves and prays for the withdrawal of Information filed in the above-entitled cases in view of the resolution of the Department of Justice promulgated on July 12, 2002 reversing the resolution of the City Prosecutor of Makati City.[14]

 The RTC’s Ruling

          In his one-page Order[15] dated 26 March 2003, Judge Dumayas granted Assistant City Prosecutor Sibucao’s motion to withdraw the informations against Lee and Lim.  Judge Dumayas held that:

          This Court, after an in-depth scrutiny of the arguments raised by the prosecution and private complainant, finds the contentions of the prosecution to be sufficient and meritorious. 

            Accordingly, the Motion to Withdraw Information filed by the Prosecution is hereby granted and the two (2) informations for the crime of Estafa penalized under par. 2 (a) of the Revised Penal Code are hereby withdrawn from the docket of this court.[16]

 

         KBC Bank filed with the Court a petition[17] for review on

certiorari under Rule 45 of the Rules of Court.  KBC Bank claimed

that:

53

 I.

 The court a quo committed reversible error in issuing the questioned Order without specifying its legal basis.

 II.

 The court a quo committed reversible error in prematurely acting upon the Makati Prosecutor’s Motion to Withdraw of Information.

 III.

 The court a quo committed reversible error in finding that no probable cause exists to hold respondents for trial for estafa under Article 315, par. 2(a) and in granting the Makati Prosecutor’s Motion to Withdraw Information.[18]

 

 

         In a Resolution[19] dated 23 June 2003, the Court referred the

petition to the Court of Appeals pursuant to Section 6,[20] Rule 56 of

the Rules of Court.  In his Resolution[21] dated 19 November 2003,

Secretary Simeon A. Datumanong denied KBC Bank’s 2 August

2002 motion for reconsideration. 

 

The Court of Appeals’ Ruling

          In its 10 February 2004 Decision, the Court of Appeals set aside Judge Dumayas’ 26 March 2003 Order.  The Court of Appeals held that:

          It has long been established that the filing of a complaint or information in Court initiates a criminal

action.  The Court thereby acquires jurisdiction over the case, which is the authority to hear and determine the case.  When after the filing of the complaint or information, a warrant for the arrest of the accused is issued by the trial court and the accused either voluntarily submitted himself to the Court or was duly arrested, the Court thereby acquired jurisdiction over the person of the accused. 

            x x x x             The trial judge practically concurred with the findings of the Secretary of Justice that the “fax copy is hearsay evidence and therefore, inadmissible to prove the truth that it contains”, contrary to the well-reasoned findings of the investigating prosecutor.  It is emphasized that 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.             The issue of admissibility or inadmissibility of evidence is a matter of defense that is best ventilated in a full-blown trial; preliminary investigation is not the occasion for the exhaustive display of presentation of evidence.[22]

         Hence, the present petition.

 

The Issues

 

         In their petition, Lee and Lim raised as issues that:

 I

             THE COURT EXCEEDED ITS AUTHORITY IN PASSING UPON THE ISSUE OF WHETHER OR NOT THERE WAS PRIMA FACIE EVIDENCE OF ESTAFA AGAINST THE PETITIONERS, AN ISSUE THAT WAS PENDING BEFORE THE SECRETARY OF JUSTICE

             x x x x

54

  

II 

            QUESTION IS NOT ONE OF ADMISSIBILITY OF EVIDENCE BUT THE NEED IN PRELIMINARY INVESTIGATION FOR EVIDENCE OF VALUE TO ESTABLISH PROBABLE CAUSE

             x x x x 

III 

            RESPONDENT COURT DID NOT PREMATURELY ALLOW THE WITHDRAWAL OF THE INFORMATIONS

             x x x x 

IV 

                      THE TRIAL COURT DID NOT ABDICATE ITS DUTY TO DETERMINE THE SUFFICIENCY OF THE PROSECUTION’S REASON FOR WITHDRAWING THE INFORMATIONS. [23]

 

The Court’s Ruling

 

         The petition is unmeritorious.          Lee and Lim claim that the Court of Appeals erred when it reviewed the findings of Secretary Perez.  They stated that:

 [T]he Court of Appeals cannot indirectly review the findings of the Secretary under the pretext of correcting the actuation of the trial court.    x x x

 [T]he only ruling before the Court of Appeals is the ruling of the trial court x x x.             But the Court of Appeals ignored the fact that the case before it is not one for the review of the final order of the Secretary

of Justice, acting as a quasi-judicial officer, which is governed by Rule 43 of the Rules of Court.  The actual case filed with it was rather a petition for review on certiorari of the dismissal order of the trial court under Rule 45.[24]

 

 

         The Court is not impressed.  The Court of Appeals reviewed

Judge Dumayas’ 26 March 2003 Order, not Secretary Perez’s 12

July 2002 Resolution.  The Court of Appeals held that Judge

Dumayas erred when he failed to make his own evaluation and

merely relied on Secretary Perez’s recommendation that there was

no probable cause.  The Court of Appeals stated that:

            In a more recent case, the Supreme Court ruled that:

             “A judge acts with grave abuse of discretion when he grants a prosecutor’s motion to dismiss the criminal charges against an accused on the basis solely of the recommendation of the Secretary of Justice — his reliance on the prosecutor’s averment that the Secretary of Justice had recommended the dismissal of the case against the petitioner is an abdication of the trial court’s duty and jurisdiction to determine a prima facie case in blatant violation of the Court’s pronouncement in Crespo vs. Mogul.”

             When the trial judge issued its Order of February 14, 2002 directing the issuance of warrants of arrest against the respondents, he clearly found probable cause to sustain the filing of criminal complaints against the latter.  The issuance of a warrant of arrest is not a ministerial function of the court — it calls for the

55

exercise of judicial discretion on the part of the issuing magistrate.                    If the trial court judge finds it appropriate to dismiss the Informations, the same should be based upon his own personal individual conviction that there is no case against the accused/respondents.  To rely solely on the recommendation of the Secretary of Justice, to say the least, is an abdication of the judge[’]s duty and jurisdiction to determine a prima facie case.  What was imperatively required was the trial judge’s own assessment of just evidence, it not being sufficient for the valid and proper exercise of judicial discretion merely to accept the prosecution’s word for its supposed insufficiency.[25]

 

         Lee and Lim claim that the Court of Appeals erred when it

ruled that the admissibility of the facsimile message is a matter

best ventilated in a full-blown trial. They stated that:

          At any rate, the Court of Appeals also said in its decision that the issue of admissibility of evidence assailed as hearsay is a matter of defense to be ventilated in a full blown trial.  It held that preliminary investigation is not the occasion for exhaustive display of evidence and the issue of admissibility or inadmissibility of evidence is a matter of defense to be ventilated at the trial. 

            But the Secretary of Justice’s rejection of the “fax copy” of Otto Versand’s letter as hearsay evidence merely affirmed petitioners’ right to due process in a preliminary investigation.  x x x             x x x x Ms. Pajarillo authenticated it by stating under oath that she received it.  The cause for its rejection is the fact that its contents are purely hearsay since Ms. Pajarillo who testified about them had no personal knowledge of the fact that the purchase orders were false.  The author of the fax message did not swear under oath to

the truth of the statement in the document contrary to what section 3 (e) of Rule 112 mandates.             The Office of the Solicitor General agreed with the petitioners.  In the comment dated October 28, 2003 that it filed with the Court of Appeals, it said:                         x x x x 

           20. In this case, the Secretary of Justice’s realistic judicial appraisal of the merits of petitioner’s complaint-affidavit show that its evidence of estafa is insufficient for lack of proof of the requisite element of deceit.  So much so that if the case were tried, the trial court would be bound to order an acquittal.[26] 

          The Court is not impressed.  Whether the facsimile message is admissible in evidence and whether the element of deceit in the crime of estafa is present are matters best ventilated in a full-blown trial, not in the preliminary investigation.  In Andres v. Justice Secretary Cuevas,[27] the Court held that:

 [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.

             In fine, 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.[28]  (Emphasis supplied)

 

         Lee and Lim claim that the Court of Appeals erred when it

ruled that Judge Dumayas failed to make his own evaluation and

56

merely relied on Secretary Perez’s recommendation that there was

no probable cause.  They stated that:

          Contrary to the Court of Appeals[’] ruling, the trial court made an effort to evaluate the merit of the prosecution’s motion to withdraw the informations.  It evaluated the merits of both the prosecution’s motion and respondent bank’s opposition to the motion.  x x x 

            Clearly, it cannot be said that the trial court abandoned its responsibility of making an independent assessment of the sufficiency of the prosecution motion [sic].  Indeed, it scrutinized the arguments of respondent bank just as it did the arguments of the prosecution in order to determine for itself whether or not the withdrawal of the informations was warranted.[29]

 

         The Court is not impressed.  Judge Dumayas failed to make

his own evaluation in granting the motion to withdraw the

informations.  Judge Dumayas’ 26 March 2003 Order states in full:

             This Court, after an in-depth scrutiny of the arguments raised by the prosecution and private complainant, finds the contentions of the prosecution to be sufficient and meritorious.

             Accordingly, the Motion to Withdraw Information filed by the Prosecution is hereby granted and the two (2) informations for the crime of Estafa penalized under par. 2 (a) of the Revised Penal Code are hereby withdrawn from the docket of this court.

 

         In Co v. Lim,[30] the Court held that:

          Once a case is filed with the court, any disposition of it rests on the sound discretion of the court.  The trial court is not bound to adopt the resolution of the Secretary of Justice, since it is

mandated to independently evaluate or assess the merits of the case.  Reliance on the resolution of the Secretary of Justice alone would be an abdication of its duty and jurisdiction to determine a prima facie case.  The trial court may make an independent assessment of the merits of the case based on the affidavits and counter-affidavits, documents, or evidence appended to the Information; the records of the public prosecutor, which the court may order the latter to produce before the court; or any evidence already adduced before the court by the accused at the time the motion is filed by the public prosecutor.             X X X X  [T]HE TRIAL JUDGE DID NOT POSITIVELY STATE THAT THE EVIDENCE PRESENTED AGAINST THE RESPONDENTS WASINSUFFICIENT FOR A PRIMA FACIE CASE, NOR DID THE AFOREQUOTED ORDER INCLUDE A DISCUSSION OF THE MERITS OF THE CASE BASED ON AN EVALUATION OR ASSESSMENT OF THE EVIDENCE ON RECORD.  IN OTHER WORDS, THE DISMISSAL OF THE CASE WAS BASED UPON CONSIDERATIONS OTHER THAN THE JUDGE’S OWN PERSONAL INDIVIDUAL CONVICTION THAT THERE WAS NO CASE AGAINST THE RESPONDENTS.  THUS, THE TRIAL JUDGE IMPROPERLY RELINQUISHED THE DISCRETION THAT HE WAS BOUND TO EXERCISE, AND THE ORDERS DATED 11 FEBRUARY 2004 AND 29 JUNE 2004 ARE INVALID FOR HAVING BEEN ISSUED IN GRAVE ABUSE OF DISCRETION.  (EMPHASIS SUPPLIED)

 

         IN BALTAZAR V. CHUA,[31] THE COURT HELD THAT:

          CONSIDERING THAT THE TRIAL COURT HAS THE POWER AND DUTY TO LOOK INTO THE PROPRIETY OF THE PROSECUTION’S MOTION TO DISMISS, WITH MUCH MORE REASON IS IT FOR THE TRIAL COURT TO EVALUATE AND TO MAKE ITS OWN APPRECIATION AND CONCLUSION, WHETHER THE MODIFICATION OF THE CHARGES AND THE DROPPING OF ONE OF THE

57

ACCUSED IN THE INFORMATION, AS RECOMMENDED BY THE JUSTICE SECRETARY, IS SUBSTANTIATED BY EVIDENCE.  THIS SHOULD BE THE STATE OF AFFAIRS, SINCE THE DISPOSITION OF THE CASE — SUCH AS ITS CONTINUATION OR DISMISSAL OR EXCLUSION OF AN ACCUSED — IS REPOSED IN THE SOUND DISCRETION OF THE TRIAL COURT.          IN THE CASE UNDER CONSIDERATION, THE CITY PROSECUTOR INDICTED JAIME AND JOVITO FOR THE CRIMES OF MURDER AND FRUSTRATED MURDER.  HOWEVER, UPON REVIEW, THE SECRETARY OF JUSTICE DOWNGRADED THE CHARGES TO HOMICIDE AND FRUSTRATED HOMICIDE.  THE SECRETARY ALSO DROPPED JAIME FROM THE CHARGES.  THIS RESOLUTION PROMPTED THE CITY PROSECUTOR TO FILE A MANIFESTATION AND MOTION FOR THE WITHDRAWAL OF THE INFORMATIONS FOR MURDER AND FRUSTRATED MURDER AND FOR THE ADMISSION OF NEW INFORMATIONS FOR HOMICIDE AND FRUSTRATED HOMICIDE AGAINST JOVITO ONLY, WHICH WAS GRANTED BY JUDGE CRUZ IN HIS ORDER DATED 18 NOVEMBER 1997.  JUDGE CRUZ, HOWEVER, FAILED TO MAKE AN INDEPENDENT ASSESSMENT OF THE MERITS OF THE CASES AND THE EVIDENCE ON RECORD OR IN THE POSSESSION OF THE PUBLIC PROSECUTOR.  IN GRANTING THE MOTION OF THE PUBLIC PROSECUTOR TO WITHDRAW THE INFORMATIONS, THE TRIAL COURT NEVER MADE ANY ASSESSMENT WHETHER THE CONCLUSIONS ARRIVED AT BY THE SECRETARY OF JUSTICE WAS SUPPORTED BY EVIDENCE.  IT DID NOT EVEN TAKE A LOOK AT THE BASES ON WHICH THE JUSTICE SECRETARY DOWNGRADED THE CHARGES AGAINST JOVITO AND EXCLUDED JAIME THEREFROM.[32]  (EMPHASIS SUPPLIED)

 

         IN ARK TRAVEL EXPRESS V. THE PRESIDING JUDGE OF

MAKATI,[33] THE COURT HELD THAT:

 

            IT IS SETTLED THAT WHEN CONFRONTED WITH A MOTION TO WITHDRAW AN INFORMATION ON THE GROUND OF LACK OF PROBABLE CAUSE BASED ON A RESOLUTION OF THE SECRETARY OF THE DEPARTMENT OF JUSTICE, THE BOUNDEN DUTY OF THE TRIAL COURT IS TO MAKE AN INDEPENDENT ASSESSMENT OF THE MERITS OF SUCH MOTION.  HAVING ACQUIRED JURISDICTION OVER THE CASE, THE TRIAL COURT IS NOT BOUND BY SUCH RESOLUTION BUT IS REQUIRED TO EVALUATE IT BEFORE PROCEEDING FURTHER WITH THE TRIAL AND SHOULD EMBODY SUCH ASSESSMENT IN THE ORDER DISPOSING THE MOTION.             THE SUBJECT MTC ORDERS DO NOT SHOW THAT THE MTC MADE AN INDEPENDENT ASSESSMENT OF THE MERITS OF THE MOTION TO WITHDRAW INFORMATIONS.  X X X            THE MTC SHOULD HAVE MADE AN INDEPENDENT EVALUATION AND EMBODIED ITS ASSESSMENT IN AT LEAST ONE OF ITS ASSAILED ORDERS.[34]  (EMPHASIS SUPPLIED)

      

         IN LEDESMA V. COURT OF APPEALS,[35] THE COURT HELD

THAT:

 ONCE A COMPLAINT OR INFORMATION IS FILED IN COURT, ANY DISPOSITION OF THE CASE SUCH AS ITS DISMISSAL OR ITS CONTINUATION RESTS ON THE SOUND DISCRETION OF THE COURT.  TRIAL JUDGES ARE THUS REQUIRED TO MAKE THEIR OWN ASSESSMENT OF WHETHER THE SECRETARY OF JUSTICE COMMITTED GRAVE ABUSE OF DISCRETION IN GRANTING OR DENYING THE APPEAL, SEPARATELY AND INDEPENDENTLY OF THE PROSECUTION’S OR THE SECRETARY’S EVALUATION THAT SUCH EVIDENCE IS INSUFFICIENT OR THAT NO PROBABLE CAUSE TO HOLD THE ACCUSED FOR TRIAL EXISTS.  THEY SHOULD EMBODY SUCH ASSESSMENT IN THEIR WRITTEN ORDER DISPOSING OF THE MOTION.

58

             X X X X THE TRIAL COURT’S ORDER IS INCONSISTENT WITH OUR REPETITIVE CALLS FOR AN INDEPENDENT AND COMPETENT ASSESSMENT OF THE ISSUE(S) PRESENTED IN THE MOTION TO DISMISS.  THE TRIAL JUDGE WAS TASKED TO EVALUATE THE SECRETARY’S RECOMMENDATION FINDING THE ABSENCE OF PROBABLE CAUSE TO HOLD PETITIONER CRIMINALLY LIABLE FOR LIBEL.  HE FAILED TO DO SO.  HE MERELY RULED TO PROCEED WITH THE TRIAL WITHOUT STATING HIS REASONS FOR DISREGARDING THE SECRETARY’S RECOMMENDATION.[36]  (EMPHASIS SUPPLIED)

 

         IN THE PRESENT CASE, JUDGE DUMAYAS, IN HIS 26 MARCH

2003 ORDER, DID NOT (1) POSITIVELY STATE THAT THE EVIDENCE

AGAINST LEE AND LIM IS INSUFFICIENT, (2) INCLUDE A DISCUSSION

OF THE MERITS OF THE CASE, (3) ASSESS WHETHER SECRETARY

PEREZ’S CONCLUSION IS SUPPORTED BY EVIDENCE, (4) LOOK AT

THE BASIS OF SECRETARY PEREZ’S RECOMMENDATION, (5)

EMBODY HIS ASSESSMENT IN THE ORDER, AND (6) STATE HIS

REASONS FOR GRANTING THE MOTION TO WITHDRAW THE

INFORMATIONS.          JUDGE DUMAYAS’ FAILURE TO MAKE HIS OWN EVALUATION OF THE MERITS OF THE CASE VIOLATES KBC BANK’S RIGHT TO DUE PROCESS AND CONSTITUTES GRAVE ABUSE OF DISCRETION.  JUDGE DUMAYAS’ 26 MARCH 2003 ORDER GRANTING THE MOTION TO WITHDRAW THE INFORMATIONS IS VOID.[37]

           WHEREFORE, THE PETITION IS DENIED.  THE COURT AFFIRMS THE 10 FEBRUARY 2004 DECISION AND 27 JULY 2004 RESOLUTION OF THE COURT OF APPEALS IN CA-G.R. SP NO. 78004.  THE CASE IS REMANDED TO THE REGIONAL TRIAL COURT, NATIONAL CAPITAL JUDICIAL REGION, BRANCH 58, MAKATI CITY

FOR EVALUATION ON WHETHER PROBABLE CAUSE EXISTS TO HOLD THE ACCUSED FOR TRIAL.          SO ORDERED.

 

VICTORIA P. CABRALVsJACINTO UY, MICHAEL UY, MARILYN O. UY, RICHARD O. UY, REY IGNACIO DIAZ, JOSE PO and JUANITO MALTOG.R. No. 174584January 20, 2010

DECISION ABAD, J.:  

          This case is about the power of courts to hear criminal

violations of the law that protects subdivision buyers against

developers selling lots before they are issued licenses to sell and

the effect of the subsequent issuance of such licenses to sales that

land developers make before the issuance of their licenses.

 

59

The Facts and the Case

 

          Respondent Jacinto Uy (Uy) is the chairman of Moldex Realty,

Inc. (Moldex); the other respondents are its officers and

directors.  Uy entered into a joint venture agreement with Quintin

Bernardo for the inclusion into Moldex’s residential subdivision

project in Bulacan of two parcels of land, totaling 20,954 square

meters, that Bernardo held under two emancipation patents.[1] 

 

On June 21, 2001 Moldex applied for a license to sell

subdivision lots in the project mentioned with the Housing and Land

Use Regulatory Board (HLURB)[2] but the latter denied the

application for failure to comply with the requirements.[3]

 

          On July 2, 2002 petitioner Victoria P. Cabral filed a criminal

complaint[4] against respondents Uy, et al. for violation of Section 5

of Presidential Decree (P.D.) 957, alleging that she was the

registered owner of the lots subject of Bernardo’s emancipation

patents.  She said that prior to the transaction between Bernardo

and respondent Uy, the latter offered to acquire the lots from her

but she refused because of the pending case for cancellation of the

patents that she filed against Bernardo with the Department of

Agrarian Reform Adjudication Board.

                                                                                                           

                                                                                                

          On April 28, 2003 the public prosecutor’s office filed a

criminal information before the Regional Trial Court of Quezon

City[5] in Criminal Case Q-03-116823 against respondent Uy and the

other Moldex officers, namely, respondents Michael Uy, Marilyn O.

Uy, Richard O. Uy, Rey Ignacio Diaz, Jose Po, and Juanito Malto for

selling subdivision lots to a certain Josefa C. Yanga without a

license from the HLURB.[6] 

 

          Subsequently, however, or on September 17, 2003 the

HLURB issued Moldex the license to sell that it needed.[7] 

 

Respondents Uy, et al. filed a motion to quash the

information and motion for judicial determination of probable

cause[8] claiming that the office of the prosecutor and the trial court

had no jurisdiction over violations of P.D. 957, such jurisdiction

being with the HLURB alone and, granting that they could take

cognizance of the case, respondents Uy, et al. could not be held

criminally liable because the HLURB subsequently issued them a

license to sell.[9] 

 

          On May 20, 2004 the trial court denied the motions of

respondents Uy, et al.[10]  On June 15, 2005 it also denied their

motion for reconsideration,[11]prompting them to appeal to the

Court of Appeals (CA) in CA-G.R. SP 90468, which court granted

their prayer for the issuance of a temporary restraining order.

[12]  On June 2, 2006 the latter court rendered a decision,

60

[13] upholding the trial court’s jurisdiction over the subject case but

ordaining its dismissal, given that the subsequent issuance of a

license to sell extinguished respondents Uy, et al.’s criminal

liability.  Petitioner Cabral filed a motion for reconsideration but the

appeals court denied[14] it, hence, this petition.

 

Required to comment on the petition, the Office of the

Solicitor General joined the petitioner in asking this Court to

reverse the CA’s decision. 

The Issues Presented 

          The issues presented in this case[15] are:

 1.       Whether or not the office of the public

prosecutor and the trial court have jurisdiction over criminal actions for violation of P.D. 957; and

 2.       Whether or not HLURB’s subsequent

issuance to Moldex of a license to sell extinguished respondents Uy, et al.’s criminal liability for selling subdivision lots prior to the issuance of such license. 

 

The Court’s Rulings

 

          First.  Conformably with what this Court ruled in Sia v.

People,[16] the CA correctly upheld the public prosecutor’s authority

to file the criminal information for violation of P.D. 957 and the trial

court’s power to hear and adjudicate the action, the penalty being

a P20,000.00 fine and imprisonment of not exceeding 10 years or

both such fine and imprisonment.  This penalty brings the offense

within the jurisdiction of that court. 

 

          Second.  P.D. 957 has been enacted to regulate for the public

good the sale of subdivision lots and condominiums.  Its Section 5

prohibits such sale without the prior issuance of an HLURB

license[17] and punishes those who engage in such selling.[18]  The

crime is regarded as malum prohibitum since P.D. 957 is a special

law designed to protect the welfare of society and ensure the

carrying on of the purposes of civil life.[19]  It is the commission of

that act as defined by law, not its character or effect that

determines whether or not its provision has been violated.  Malice

or criminal intent is immaterial in such crime.[20]  In crimes that

aremala prohibita, the forbidden acts might not be inherently

immoral.  Still they are punished because the law says they are

forbidden.  With these crimes, the sole issue is whether the law has

been violated.[21] 

 

Since the Information in this case sufficiently alleged that

Moldex sold a subdivision lot when it did not yet have a license to

do so, the crime was done. Assuming the allegations to be true, the

subsequent issuance of the license and the invocation of good faith

cannot reach back to erase the offense and extinguish respondents

Uy, et al.’s criminal liability. 

61

 

In ruling that respondents’ criminal liability has been

extinguished, the CA relied on Co Chien v. Sta. Lucia Realty and

Development, Inc.[22]  But CoChien is a case for refund of down

payment and nullification of the contract of sale between the buyer

and the developer whose license was issued only after the

execution of the contract.  This Court refused to void the

transaction in the case because the absence of the license was not

in itself sufficient to invalidate the contract.  And while there was

no fraud on the part of the developer, the HLURB directed it to pay

an administrative fine of P20,000.00 for selling the lot without the

necessary license.  This only shows that the subsequent issuance of

a license, as in this case, will not extinguish the liability of the

developer for violation of Section 5 of P.D. 957.

 

WHEREFORE, the Court GRANTS the petition

and REVERSES and SETS ASIDE the June 2, 2006 Decision and the

August 22, 2006 Resolution of the Court of Appeals in CA-G.R. SP

90468.  The Court REINSTATES the May 20, 2004 Order of the

Regional Trial Court of Quezon City in Criminal Case Q-03-116823,

which denied respondents’ omnibus motion to quash and motion

for judicial determination of probable cause.

 

SO ORDERED. 

HAROLD V. TAMARGO vsROMULO AWINGAN, LLOYD ANTIPORDA and LICERIO ANTIPORDA, JR.,G.R. No.  177727January 19, 2010

62

D E C I S I O NCORONA, J.: 

 

          This is a petition for review on certiorari[1] of the November

10, 2006 decision[2] and May 18, 2007 resolution[3] of the Court of

Appeals (CA) in CA-G.R. SP No. 93610.                  

          Atty. Franklin V. Tamargo and his eight-year-old daughter,

Gail Franzielle, were shot and killed at around 5:15 p.m. of August

15, 2003 along Nueva Street corner Escolta Street, Binondo,

Manila. The police had no leads on the perpetrators of the crime

until a certain Reynaldo Geron surfaced and executed an affidavit

dated September 12, 2003.  He stated that a certain Lucio Columna

told him during a drinking spree that Atty. Tamargo was ordered

killed by respondent Lloyd Antiporda and that he (Columna) was

one of those who killed Atty. Tamargo. He added that he told the

Tamargo family what he knew and that the sketch of the suspect

closely resembled Columna.[4]

         

          After conducting a preliminary investigation and on the

strength of Geron’s affidavit, the investigating prosecutor[5] issued

a resolution dated December 5, 2003 finding probable cause

against Columna and three John Does.[6]  On February 2, 2004, the

corresponding Informations for murder were filed against them in

the Regional Trial Court (RTC) of Manila, one assigned to Branch 27

for the death of Atty. Franklin Tamargo, and the other to Branch 29

for the death of the minor Gail Franzielle.[7]  Columna was arrested

in the province of Cagayan on February 17, 2004 and brought to

Manila for detention and trial.[8]

 

On March 8, 2004, Columna (whose real name was Manuel,

Jr.) executed an affidavit wherein he admitted his participation as

“look out” during the shooting and implicated respondent Romulo

Awingan (alias “Mumoy”) as the gunman and one Richard Mecate.

He also tagged as masterminds respondent Licerio Antiporda, Jr.

and his son, respondent Lloyd Antiporda.[9] The former was the ex-

mayor and the latter the mayor of Buguey, Cagayan at that

time.  When the killing took place, Licerio Antiporda was in

detention for a kidnapping case in which Atty. Tamargo was acting

as private prosecutor.  

63

Pursuant to this affidavit, petitioner Harold V. Tamargo

(brother of Atty. Tamargo) filed a complaint against those

implicated by Columna in the Office of the City Prosecutor of

Manila.[10]

On April 19, 2004, Columna affirmed his affidavit before the

investigating prosecutor[11] who subjected him to clarificatory

questions.[12]

Respondents denied any involvement in the killings.  They

alleged that Licerio was a candidate for mayor in Buguey, Cagayan

during the May 2004 elections and that the case was instituted by

his political opponents in order to derail his candidacy. The

Antipordas admitted that Atty. Tamargo was their political rival for

the mayoralty post of Buguey.  Atty. Tamargo had been defeated

twice by Lloyd and once by Licerio.  Before the killing, Atty.

Tamargo filed an election case against Lloyd and a kidnapping case

in the Sandiganbayan against Licerio.  However, they claimed that

both cases were dismissed as Lloyd emerged as the winner in the

elections and Licerio was acquitted by the Sandiganbayan.[13]

 

During the preliminary investigation, respondent Licerio

presented Columna’s unsolicited handwritten letter dated May 3,

2004 to respondent Lloyd, sent from Columna’s jail cell in

Manila.  In the letter, Columna disowned the contents of his March

8, 2004 affidavit and narrated how he had been tortured until he

signed the extrajudicial confession. He stated that those he

implicated had no participation in the killings.[14] Respondent Licerio

also submitted an affidavit of Columna dated May 25, 2004 wherein

the latter essentially repeated the statements in his handwritten

letter. 

Due to the submission of Columna’s letter and affidavit, the

investigating prosecutor set a clarificatory hearing, to enable

Columna to clarify his contradictory affidavits and his unsolicited

letter.  During the hearing held on October 22, 2004, Columna

categorically admitted the authorship and voluntariness of the

unsolicited letter. He affirmed the May 25, 2004 affidavit and

denied that any violence had been employed to obtain or extract

the affidavit from him.[15]

64

Thus, on November 10, 2004, the investigating prosecutor

recommended the dismissal of the charges. This was approved by

the city prosecutor.  

Meanwhile, in another handwritten letter addressed to City

Prosecutor Ramon Garcia dated October 29, 2004, Columna said

that he was only forced to withdraw all his statements against

respondents during the October 22, 2004 clarificatory hearing

because of the threats to his life inside the jail. He requested that

he be transferred to another detention center.[16]

Aggrieved by the dismissal of the charges, petitioner filed

an appeal to the Department of Justice (DOJ).[17]  On May 30, 2005,

the DOJ, through then Secretary Raul M. Gonzalez, reversed the

dismissal and ordered the filing of the Informations for murder.

[18]  He opined that the March 8, 2004 extrajudicial confession was

not effectively impeached by the subsequent recantation and that

there was enough evidence to prove the probable guilt of

respondents.[19] Accordingly, the Informations were filed and the

cases were consolidated and assigned to the RTC of Manila, Branch

29.[20]  

However, on August 12, 2005, Secretary Gonzales granted

the Antipordas’ motion for reconsideration (MR) and directed the

withdrawal of the Informations.[21]  This time, he declared that the

extrajudicial confession of Columna was inadmissible against

respondents and that, even if it was admissible, it was not

corroborated by other evidence.[22]  As a result, on August 22, 2005,

the trial prosecutor filed a motion to withdraw the Informations.  On

October 4, 2005, Secretary Gonzalez denied petitioner’s MR. 

The RTC, through Judge Cielito Mindaro-Grulla, granted the

motion to withdraw the Informations in an order dated October 26,

2005.[23]  Petitioner filed an MR but the judge voluntarily inhibited

herself without resolving the same.  The cases were re-raffled to

Branch 19, presided by Judge Zenaida R. Daguna. Judge Daguna

granted the MR of petitioner in a resolution dated December 9,

2005.  She ruled that, based on Columna’s March 8, 2004 affidavit

which he affirmed before the investigating prosecutor, there was

probable cause to hold the accused for trial.  She denied the MR of

the Antipordas in an order dated February 6, 2006. 

65

Consequently, respondent Awingan filed a special civil

action for certiorari and prohibition in the CA docketed as CA-G.R.

SP No. 93610.  The Antipordas separately filed another certiorari

case docketed as CA-G.R. SP No. 94188.    

In a decision dated November 10, 2006 in CA-G.R. SP No.

93610, the CA ruled that the RTC judge gravely abused her

discretion because she arbitrarily left out of her assessment and

evaluation the substantial matters that the DOJ Secretary had fully

taken into account in concluding that there was no probable cause

against all the accused.  It also held that Columna’s extrajudicial

confession was not admissible against the respondents because,

aside from the recanted confession, there was no other piece of

evidence presented to establish the existence of the

conspiracy.  Additionally, the confession was made only after

Columna was arrested and not while the conspirators were

engaged in carrying out the conspiracy. 

After this decision was promulgated, CA-G.R. SP No. 93610

was consolidated with CA-G.R. SP No. 94188.  The CA denied

reconsideration in a resolution dated May 18, 2007.  In a decision

dated August 24, 2007, the CA likewise granted the petition for

certiorari of respondents Antiporda.[24]

 

          Petitioner filed this petition assailing the decision in CA-G.R.

SP No. 93610.  Later on, he filed an amended petition impleading

respondents Antiporda and likewise assailing the CA decision in CA-

G.R. SP No. 94188.  The Court treated this as a supplemental

petition. 

          The main issue for our resolution is whether or not the CA

erred in finding that Judge Daguna had committed grave abuse of

discretion in denying the withdrawal of the Informations for murder

against respondents. 

Petitioner argues that, based on the independent

assessment of Judge Daguna, there was probable cause based on

the earlier affidavit of Columna.  She considered all the pieces of

evidence but did not give credit to Columna’s recantation. 

66

Respondents counter that Judge Daguna committed grave

abuse of discretion by limiting her evaluation and assessment only

to evidence that supported probable cause while completely

disregarding contradicting evidence.  They also contend that

Columna’s extrajudicial confession was inadmissible against

respondents because of the rule on res inter alios acta. 

We find no merit in the petition. 

It is settled that, when confronted with a motion to withdraw

an Information (on the ground of lack of probable cause to hold the

accused for trial based on a resolution of the DOJ Secretary), the

trial court has the duty to make an independent assessment of the

merits of the motion.[25]  It may either agree or disagree with the

recommendation of the Secretary.  Reliance alone on the resolution

of the Secretary would be an abdication of the trial court’s duty and

jurisdiction to determine a prima facie case.[26]  The court must

itself be convinced that there is indeed no sufficient evidence

against the accused.[27]

 

We agree with the CA that Judge Daguna limited herself only

to the following:  (1) Columna’s affidavit dated March 8, 2004

wherein he implicated the respondents in the murders; (2) his

affirmation of this affidavit during the April 19, 2004 clarificatory

hearing; (3) his letter dated October 29, 2004 and (4) the May 30,

2005 DOJ resolution upholding the prosecutor’s recommendation to

file the murder charges.[28]

 

She completely ignored other relevant pieces of evidence

such as: (1) Columna’s May 3, 2004 letter to respondent Lloyd

Antiporda narrating the torture he suffered to force him to admit

his participation in the crimes and to implicate the respondents; (2)

his May 25, 2004 affidavit where he stated that neither he nor the

respondents had any involvement in the murders and (3) his

testimony during the October 22, 2004 clarificatory hearing

wherein he categorically affirmed his May 3, 2004 letter and May

25, 2004 affidavit. 

We declared in Jimenez v. Jimenez[29] that [although] there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions

67

obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear dictates of reason. The judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold.[30]  (Emphasis supplied)

 

Had Judge Daguna reviewed the entire records of the

investigation, she would have seen that, aside from the pieces of

evidence she relied on, there were others which cast doubt on

them.  We quote with approval the reflections of the CA on this

point: The selectivity of respondent RTC Judge for

purposes of resolving the motion to withdraw the informations effectively sidetracked the guidelines for an independent assessment and evaluation of the merits of the case.  Respondent RTC Judge thus impaired the substantial rights of the accused.  Instead, she should have made a circumspect evaluation by looking at everything made available to her at that point of the cases.  No less than that was expected and required of her as a judicial officer.  According to Santos v. Orda, Jr., the trial judge may make an independent assessment of the merits of the case based on the affidavits and counter-affidavits, documents, or evidence appended to the Information; the records of the public prosecutor which the court may order the latter to produce before the court; or any evidence already adduced before the court by the accused at the time the motion is filed by the public prosecutor.[31]

  

Moreover, Judge Daguna failed to consider that Columna’s

extrajudicial confession in his March 8, 2004 affidavit was not

admissible as evidence against respondents in view of the rule

on res inter alios acta.         

Res inter alios acta alteri nocere non debet.  The rule on res

inter alios acta provides that the rights of a party cannot be

prejudiced by an act, declaration, or omission of another.

[32]  Consequently, an extrajudicial confession is binding only on the

confessant, is not admissible against his or her co-accused [33] and is

considered as hearsay against them.[34]  The reason for this rule is

that: on a principle of good faith and mutual convenience, a man’s own acts are binding upon himself, and are evidence against him.  So are his conduct and declarations. Yet it would not only be rightly inconvenient, but also manifestly unjust, that a man should be bound by the acts of mere unauthorized strangers; and if a party ought not to be bound by the acts of strangers, neither ought their acts or conduct be used as evidence against him.[35]

68

An exception to the res inter alios acta rule is an admission

made by a conspirator under Section 30, Rule 130 of the Rules of

Court: 

Admission by conspirator. — The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration.

 

This rule prescribes that the act or declaration of the

conspirator relating to the conspiracy and during its existence may

be given in evidence against co-conspirators provided that the

conspiracy is shown by independent evidence aside from the

extrajudicial confession.[36] Thus, in order that the admission of a

conspirator may be received against his or her co-conspirators, it is

necessary that (a) the conspiracy be first proved by evidence other

than the admission itself (b) the admission relates to the common

object and (c) it has been made while the declarant was engaged in

carrying out the conspiracy.[37]  Otherwise, it cannot be used

against the alleged co-conspirators without violating their

constitutional right to be confronted with the witnesses against

them and to cross-examine them.[38]  

Here, aside from the extrajudicial confession, which was

later on recanted, no other piece of evidence was presented to

prove the alleged conspiracy.  There was no other prosecution

evidence, direct or circumstantial, which the extrajudicial

confession could corroborate. Therefore, the recanted confession of

Columna, which was the sole evidence against respondents, had no

probative value and was inadmissible as evidence against them. 

            Considering the paucity and inadmissibility of the evidence

presented against the respondents, it would be unfair to hold them

for trial.   Once it is ascertained that no probable cause exists to

form a sufficient belief as to the guilt of the accused, they should

be relieved from the pain of going through a full blown court case.

[39]  When, at the outset, the evidence offered during the

preliminary investigation is nothing more than an uncorroborated

extrajudicial confession of an alleged conspirator, the criminal

complaint should not prosper so that the system would be spared

69

from the unnecessary expense of such useless and expensive

litigation.[40]  The rule is all the more significant here since

respondent Licerio Antiporda remains in detention for the murder

charges pursuant to the warrant of arrest issued by Judge Daguna.

[41]

 

Indeed, at that stage of the proceedings, the duty of Judge

Daguna was only to satisfy herself whether there was probable

cause or sufficient ground to hold respondents for trial as co-

conspirators.  Given that she had no sufficient basis for a finding of

probable cause against respondents, her orders denying the

withdrawal of the Informations for murder against them were

issued with grave abuse of discretion.  

Hence, we hold that the CA committed no reversible error in

granting the petitions for certiorari of respondents. 

WHEREFORE, the petition is hereby DENIED. 

No pronouncement as to costs. 

SO ORDERED.

JULIUS CACAO y PRIETOvsPEOPLE OF THE PHILIPPINESG.R. No. 180870January 22, 2010 

D E C I S I O N 

DEL CASTILLO, J.:

70

            In order to safeguard its citizenry from the harmful effects of

dangerous drugs on their physical and mental well-being, the State

pursued an intensive and unrelenting campaign against the trafficking

and use of dangerous drugs and other similar substances.[1]  However, in

our desire to totally eradicate this social ill, we must adhere to the

constitutional pronouncement that in all criminal prosecutions, the

accused shall be presumed innocent until the contrary is proved.[2]  This

case illustrates once more our faithful adherence to said constitutional

requirement.

 Factual Antecedents             For  review is  the Decision[3] of  the Court of Appeals (CA)  in CA-G.R. CR

No. 29985 dated July 27, 2007 affirming in toto the Decision[4] of the

Regional Trial Court (RTC) of Laoag City, Branch 13 in Criminal Case No.

11489-13 dated November 25, 2005 finding herein petitioner Julius

Cacao y Prieto (Cacao) guilty beyond reasonable doubt of violating

Section 11, Article II of Republic Act (RA) No. 9165 (The Comprehensive

Dangerous Drugs Act of 2002) and sentencing him to suffer the penalty

of imprisonment ranging from 12 years and one day to 15 years and

ordering him to pay a fine of P400,000.00.  Also assailed is the

Resolution[5] of the CA dated December 11, 2007 denying the motion for

reconsideration.

 

            On October 15, 2004, two separate informations were filed

against Joseph Canlas y Naguit[6] and Cacao[7] indicting them for violation

of Section 11, Article II of RA 9165 before the RTC of Laoag City.  Insofar

as pertinent to this petition, we shall quote the information only against

Cacao in Criminal Case No. 11489-13 which reads:           

            That on or about the 14th day of October, 2004, at Laoag City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously [sic] have in his possession, control and custody 1 plastic sachet of methamphetamine hydrochloride or shabu containing a total of 1.6 grams including plastic sachets [sic] without any license or authority, in violation of the aforesaid law.                               CONTRARY TO LAW.[8]

            When arraigned on November 30, 2004, Cacao pleaded not

guilty.[9]  Thereafter trial on the merits followed.

           The inculpatory facts, as unveiled by the prosecution in its

evidence given during the trial, were briefly synthesized by the Office of

the Solicitor General,viz:                On October 14, 2004, at around 7:45 in the evening, Police Officer 3 (PO3) Celso Pang-ag of the Intelligence and Operation Section of the Laoag City Police Station received a telephone call from an informant about a drug session being held inside Room 5 of the Starlight Hotel located at Barangay 5, Ablan Avenue, Laoag City.                 Acting on the information, PO3 Pang-ag, together with PO2 Jonel Mangapit, went immediately to the Starlight Hotel to determine the veracity of the report.  Upon arrival at the target area, PO3 Pang-ag and PO2 Mangapit approached the lady clerk manning the information counter of Starlight Hotel and inquired about the alleged drug session at Room 5 of the hotel.                 The lady clerk informed PO3 Pang-ag and PO2 Mangapit that the roomboy of the hotel was about to deliver a softdrink to Room 5 and they could follow him if they [so wish].  Thus, PO3 Pang-ag and PO2 Mangapit

71

followed the roomboy to Room 5.  Upon arrival, the roomboy knocked at the door and a woman, later identified as Mylene, opened the door wide enough to enable the police officers to look inside.                 PO3 Pang-ag and PO2 Mangapit saw petitioner seated on top of the bed sniffing “shabu” while Joseph Canlas was on the floor assisting petitioner sniffing “shabu”.  At this juncture, PO3 Pang-ag and PO2 Mangapit arrested petitioner and Joseph and confiscated from them the drug paraphernalia, glass tooter, scissors, lighters and plastic sachets.                 PO2 Mangapit frisked petitioner and recovered from him one plastic sachet containing “shabu”.                 After informing petitioner and Joseph of their constitutional rights, PO3 Pang-ag and PO2 Mangapit brought them to the Laoag City Police Station and turned them over to the police officer on duty while the confiscated items were turned over to SPO3 Loreto Ancheta.                 The Philippine National Police (PNP) laboratory conducted an examination on the specimen recovered from appellant and his companion which tested positive for “shabu”.[10]

 

            Cacao professed his innocence and presented his defense in this

wise: 

                In the afternoon of 14 October 2004, petitioner was waiting for a ride going home along the National Road at the rotunda of San Nicolas, Ilocos Norte.  Joseph Canlas [who was on his way to] Laoag City aboard his motorcycle x x x pulled over and asked the petitioner if the latter could spare a moment to estimate a work he wanted to be done in his house.  Admittedly, the petitioner is a contractor.  Petitioner agreed and they both boarded Canlas’ motorcycle for Laoag City. 

                While in Laoag City, petitioner and Canlas stopped at the public market for the latter to collect [loan payment] as he is also a money lender.  Petitioner stayed [by] Canlas’ motorcycle.  When Canlas returned, it was then that they decided to have “chicks” (or womanize).  They then proceeded to Starlight Hotel located along Ablan Ave., Laoag City on board Canlas’ motorcycle.                 x x x at the Starlight Hotel, petitioner asked for a room and [was given] Room 5 x x x.  Thereafter, Canlas stayed inside Room 5 while petitioner went out to the hotel’s counter to wait for the woman they [had] contacted.  Present at the counter at the time was the lady cashier [named] Cherry Corpuz.                 In about thirty (30) minutes, a tricycle-for-hire arrived with a man and a woman on board as passengers.  The tricycle went inside the hotel and stopped right in front of the counter where the petitioner and the lady cashier were.  After alighting from the tricycle, the woman companion inquired where Room 5 is [and was directed] by the lady cashier.  The woman [who] alighted from the tricycle in the company of another male person was later on identified to be Mylene Daquioag.  Thereafter, Mylene Daquioag proceeded to Room 5 while the male companion stayed behind with the petitioner at the hotel’s counter.  When petitioner could not wait [any] longer because there was only one woman who arrived, he x x x asked the male companion of Mylene Daquioag if another woman is coming.  The male companion answered in the negative.  A couple of minutes [later], petitioner followed to Room 5 so he could [sic] go home instead because it was then getting late.                 Upon entering the room, petitioner saw Mylene Daquioag and Canlas seated at the table inside the room.  He also saw Mylene Daquioag offer something contained in plastic x x x to Canlas.  The latter refused as he said it is a woman that he was asking [for].                 Barely a moment after entering Room 5, the two then heard a knock on the door from the outside.  Mylene Daquiaog immediately stood up and told

72

the petitioner and Canlas that “they are (her) companions”.                 As soon as the door was unlocked by Mylene Daquioag, several policemen barged inside the room with their guns drawn out. Petitioner was shoved to the bed by one of the police.  He was later bodily searched but nothing was found from [sic] him except his wallet containing cash of about P 7,000.00.  The wallet was later turned over to the petitioner’s wife at the Police Station of Laoag, City. The P7,000.00 was never seen again.                 As petitioner was made to sit at [sic] the bed, one of the police officers pointed to a plastic sachet on the floor.  It was about two (2) meters away from him and about a meter from the police pointing [to] it.  The same police then explained that the plastic sachet belongs to the petitioner.  Immediately, petitioner cried foul on the assertion.                 Due to the suddenness of events, the petitioner was not as much as able to notice what the other police did to Canlas.                 Without much ado, the petitioner and Canlas were apprehended, handcuffed and brought to the Laoag City Police Station.  Charges were later on filed against them.[11]  

Ruling of the Regional Trial Court

                On November 25, 2005, the trial court rendered its judgment

finding Cacao guilty of the offense charged and sentenced him

accordingly, viz: 

            WHEREFORE x x x                 The accused Julius Cacao is likewise found GUILTY beyond reasonable doubt as charged of illegal possession of methamphetamine hydrochloride weighing 1.3987 grams in Criminal Case No. 11489 and is

therefore sentenced to suffer the indeterminate penalty of imprisonment from TWELVE (12) YEARS and ONE (1) DAY to FIFTEEN (15) YEARS and to pay the fine of Four hundred thousand (P400,000.00) pesos, Philippine Currency.                   The sachets of shabu confiscated from the accused are all confiscated in favor of the Government, the same to be disposed as the law prescribes.  Cost de oficio.                 SO ORDERED.[12]

  Ruling of the Court of Appeals  

            Aggrieved by the Decision of the trial court, Cacao interposed an

appeal to the CA.  On July 27, 2007, the appellate court rendered

judgment affirming Cacao’s conviction.  It held that the circumstances

obtaining in this case validly cloaked the arresting officers with the

authority to search and seize any contraband or prohibited material

which may be used as proof of the offense of which Cacao is charged.  It

also ruled that there is no proof that the police officers compelled Cacao

to admit a crime.  As to the alleged contradictory statements, the

appellate court ruled that they refer only to minor details which are not

sufficient to overthrow the probative value accorded them by the trial

court.

            Petitioner moved for reconsideration[13] but the motion was

denied by the appellate court in its Resolution[14] dated on December 11,

2007.

Issues

 

73

            In this petition, Cacao ascribes to the trial court the following

errors: 

I.                                        The lower court gravely erred in ruling that the guilt of the accused was proven beyond reasonable doubt considering the myriad material inconsistencies, discrepancies, and incredible statements in the prosecution evidence.[15]

 II.                                   The lower court gravely erred in

failing to lend credence to the critical testimony of Benedict Villanueva.[16]

 III.                              The lower court erred in not

finding that the crucial first link in the chain of custody of the specimen subjected for examination was not proven.[17]

 IV.                             The lower court gravely erred in

declaring that the defense of frame-up cannot be given weight.[18]

 V.                                  The lower court gravely erred in

relying on the weakness of the defense.[19]

 VI.                             The lower court gravely erred in

failing to find that the presumption of innocence of the petitioner stands unrebutted, hence, his conviction is erroneous.[20]

 

Our Ruling

            We find merit in the petition.

            As a general rule, factual findings and conclusions of the trial

court and the CA are entitled to great weight and respect and will not be

disturbed on appeal. However, if there is any indication that the trial

court overlooked certain facts or circumstances which would

substantially affect the disposition of the case,[21] we will not hesitate to

review the same.  In this case, we find it imperative to review the factual

findings of the trial court because of certain inconsistencies in the

testimonies of the prosecution witnesses on material points.

            Jurisprudence holds that in prosecution of cases involving illegal

possession of prohibited drugs, the prosecution must establish with

moral certainty the elemental act of possession of a prohibited substance

coupled with the fact that such possession is not authorized by

law.  Essential, however, in a drug-related case is that the identity of the

dangerous drug be established beyond reasonable doubt.[22]  Since the

dangerous drug constitutes the corpus delicti of the offense and the fact

of its existence is vital to a judgment of conviction,[23] it behooves upon

the prosecution to establish and prove with certainty that the dangerous

drug presented in court as evidence against the accused is the same

item recovered from his possession.

 

            We have scrutinized in detail the testimonies of the prosecution

witnesses and found not only glaring inconsistencies on material points

but more importantly a failure to identify indubitably the prohibited drug

allegedly confiscated from Cacao.

 The testimonies of the prosecution’s principal witnesses are inconsistent as to who delivered the prohibited drug to the evidence custodian.

74

  

            PO3 Celso Pang-ag (Pang-ag) and PO2 Jonel Mangapit (Mangapit)

both testified that it was the latter who brought the item confiscated

from petitioner to the evidence custodian, SPO3 Loreto Ancheta

(Ancheta). Thus: Q:           What about the two plastic sachets you

confiscated from the possession of the accused Joseph and the one plastic sachet which Jonel Mangapit confiscated from the possession of Julius Cacao as well as the drug paraphernalia you mentioned, what did you do with them?

A:           We turned over the confiscated drug paraphernalia and the one I confiscated to the evidence custodian, SP03 Loreto Ancheta and the one confiscated by P02 Mangapit was also turned over by him to the evidence custodian, sir.

Q:           Who was the evidence custodian whom you and Jonel Mangapit turned over the items you said?

A:           SPO3 Loreto Ancheta, Sir.[24]                          

 

            Mangapit corroborated Pang-ag’s testimony that it was he who

delivered to Ancheta the item he seized from Cacao. Thus: Q:           How about the one big plastic sachet you were

able to seize from the right front pocket of accused Cacao, what did you do?

A:           I turned it over to the evidence custodian, Sir. Q:           Who was that evidence custodian to whom you

turned over that plastic sachet?A:           SP02 Loreto Ancheta, Sir.[25]

 

            The foregoing assertions are totally at odds with the testimony of

Ancheta, the evidence custodian.  The latter denied that it was Mangapit

who delivered the item allegedly recovered from Cacao.  Instead, he

repeatedly and categorically declared that it was SP03 Balolong

(Balolong) from whom he received the plastic sachet of shabu. 

Q:           Who delivered to you the specimen allegedly confiscated from the possession of Cacao?

A:           SP03 Balolong, Sir.[26]

 

During his cross-examination, Ancheta confirmed his declaration

that it was Balolong and definitely not Mangapit who handed to him the

plastic sachet ofshabu.  Ancheta testified thus: Q:           You said that it was officer Balolong who

handed to you the plastic sachet of shabu which was allegedly taken from the possession of accused Julius Cacao, did I hear you right?

A:           Julius Cacao, yes sir. Q:           It was not officer Mangapit who handed to you

the plastic sachet of shabu?A:           Balolong, sir. Q:           It was not Mangapit?A:           No sir.[27]

            When confronted with the afore-quoted testimony of Ancheta,

Mangapit cannot explain the variance.  He just gave a sweeping answer

“I do not know”.[28]

 

            We cannot understand why the courts below did not doubt or

suspect the patently inconsistent and contradictory testimonies of the

principal witnesses of the prosecution.  Contrary to the findings of the

appellate court, we are of the considered view that this contradiction is

not so inconsequential or minor but a discrepancy touching on

75

substantial and significant matter which could well affect the credibility of

the witnesses.

 The prosecution failed to satisfactorily establish that the item presented in court was the same item confiscated from Cacao.  

            The patent inconsistency between the testimonies of Mangapit

and Pang-ag, on one hand, and the testimony of Ancheta on the other

hand, necessarily leads us to doubt that the plastic sachet

of shabu identified in court is the same item that was allegedly seized

and confiscated from petitioner.  If the version of Mangapit is to be

believed, then the most lamentable aspect pertains to his failure to

identify the seized item with certainty.  For sure Mangapit, who is the

most competent person to make the proper identification being the

officer who confiscated the item from Cacao, never actually identified the

same: 

Q:           If shown to you again that one big plastic sachet where you put markings would you be able to recognize and identify the same?

A:           Yes, sir. Q:           Giving to you an already opened brown

envelope with several contents, will you please sort out [the] contents and bring out that big plastic sachet you claimed you confiscated from the custody of accused Cacao?

A:           (Witness sorting out the contents of the plastic bag containing several items). (Witness examining the plastic sachet mounted on the bond paper marked as Exhibit B-1).

 Q:           Are the markings you claimed which were

placed in the plastic sachet still visible and readable?

A:           Yes, sir. Q:           Will you please read for record purposes the

markings?A:           Initial JPC and my signature, sir.                (Witness pointing to the initials and signature

written on a darker masking tape on the plastic sachet).[29]

 

            Verily, there was no actual and effective identification of the

subject specimen.  After sorting out the contents of the plastic bag,

witness Mangapit merely pointed to the initial and signature written on a

masking tape attached to the plastic sachet.  At no instance did he make

a categorical and accurate declaration that the sachet contained

the shabu allegedly confiscated from Cacao.

 

            The only other person who could have identified the subject drug

is Pang-ag.  However, we cannot lend credence to his supposed

identification, the same not being also positive, certain and

unequivocal.  Besides, there is no showing that this witness actually saw

the shabu at the time it was allegedly seized from petitioner.  In fact,

Pang-ag is even incompetent to make the identification since from all

indications, he has never been in possession of it.

 

76

            Be that as it may, any identification made by these witnesses on

the item allegedly seized from petitioner is rendered meaningless and

bereft of probative value in view of the categorical denial of the evidence

custodian that he received the same from Mangapit.  It is now clearly

evident from the records that the sachet of shabu which the evidence

custodian received, marked and submitted for examination and later

presented in court is not the same sachet of shabu which Mangapit

claimed to have confiscated from petitioner and subsequently

transmitted to the evidence custodian.

 

            Moreover, considering the testimony of Ancheta, it was Balolong

who forwarded the seized item.  It is quite strange that Ancheta would

point to Balolong as the sender of the seized items if he had no basis in

saying so.  However, our own scrutiny of the records failed to show the

role of Balolong in the operation since admittedly, the only lawmen who

participated therein were Mangapit and Pang-ag.  In fact, as testified to

by Mangapit, Balolong proceeded to the hotel after the operation.

[30]  How then was Balolong able to get hold of the confiscated substance

when he was neither a party to nor present during the operation?  Who

entrusted the substance to him assuming that somebody requested him

to submit it for safekeeping?  These are only some of the lingering

questions which must be answered convincingly and satisfactorily so as

to ensure that there had been no substitution, contamination or

tampering with the sachet of shabu allegedly taken from petitioner.  It

must be noted that Balolong was never presented to testify in this

case.  Thus, there is no evidence to prove that what was turned over to

the evidence custodian by Balolong and later presented in court was the

same substance recovered from petitioner.  The failure to establish the

chain of custody is fatal to the prosecution’s case.  There can be no

crime of illegal possession of a prohibited drug when nagging doubts

persist on whether the item confiscated was the same specimen

examined and established to be the prohibited drug.[31]  In People v.

Casimiro,[32] citing People v. Mapa,[33] we acquitted the accused for failure

of the prosecution to establish the identity of the prohibited drug which

constitutes the corpus delicti.  Equally true in Zarraga v. People,[34] we

also acquitted the accused in view of the prosecution’s failure to

indubitably show the identity of the shabu. 

 

            At this juncture, it must be stressed that the “corpus delicti in

dangerous drugs cases constitutes the drug itself.  This means that proof

beyond reasonable doubt of the identity of the prohibited drug is

essential”.[35]

 

            Likewise, our ruling in People v. Gutierrez[36] on chain of custody

rule is instructive.  Thus: 

                As a mode of authenticating evidence, the chain of custody rule requires the presentation of the seized prohibited drugs as 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 ideally cover the testimony about every link in the chain, from seizure of the prohibited drug up to the time it is offered in evidence, in such a way that everyone who touched the exhibit would describe how and from whom it was received, to include, as much as possible, a

77

description of the condition in which it was delivered to the next in the chain.

 

            Finally, petitioner’s defenses of denial and frame-up are

concededly inherently weak and commonly used in drug-related

cases.  However, it must be stressed that conviction of the accused must

rest not on the weakness of the defense but on the strength of the

evidence of the prosecution.

 

            Based on the foregoing, we are of the considered view that the

quantum of evidence needed to convict, that is proof beyond reasonable

doubt, has not been adequately established by the prosecution.  While

as a rule we desist from disturbing the findings and conclusions of the

trial court especially with respect to the credibility of witnesses, we must

bow to the superior and immutable rule that the guilt of the accused

must be proved beyond reasonable doubt because the law presumes

that the accused is innocent unless and until proven

otherwise.  Presumption of regularity in the performance of official duty

cannot by itself override the constitutional right of the accused to be

presumed innocent unless overcome by strong, clear and compelling

evidence.

 

            WHEREFORE, the petition is GRANTED.  The assailed Decision of

the Court of Appeals in CA-G.R. CR No. 29985 dated July 27, 2007

affirming in toto the Decision of the Regional Trial Court of Laoag City,

Branch 13, in Criminal Case No. 11489-13, and its Resolution dated

December 11, 2007 denying the motion for reconsideration,

are REVERSED and SET ASIDE.  Petitioner Julius Cacao y Prieto

is ACQUITTED on ground of reasonable doubt. 

            SO ORDERED.

PEOPLE OF THE PHILIPPINESvs.ROLDAN MORALES y MIDARASAG.R. No. 172873               March 19, 2010

D E C I S I O N

DEL CASTILLO, J.:

The requirement of proof beyond a reasonable doubt has this vital role in our criminal procedure for cogent reasons. The accused during a criminal prosecution has at stake interest of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction. Accordingly, a society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt.1 Due process commands that no man shall lose his liberty unless the Government has borne the burden of convincing the factfinder of his guilt. To this end, the reasonable-doubt standard is indispensable, for it ‘impresses on the trier of fact the necessity of reaching certitude of the facts in issue.2

Moreover, use of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of criminal law. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves

78

people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs has confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty.3

Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.4

On appeal is the Decision5 of the Court of Appeals (CA) promulgated on April 24, 2006 affirming in toto the Decision6 of the Regional Trial Court (RTC) of Quezon City, Branch 103 finding appellant Roldan Morales y Midarasa guilty of the crimes of possession and sale of dangerous drugs.

Factual Antecedents

Appellant was charged in two separate Informations before the RTC with possession and sale of methylamphetamine hydrochloride (shabu), to wit:

Criminal Case No. Q-03-114256

That on or about the 2nd day of January, 2003 in Quezon City, Philippines, the said accused not being authorized by law to possess or use any dangerous drug, did then and there, willfully, unlawfully and knowingly have in her/his/their possession and control, zero point zero three (0.03) grams of methylamphetamine hydrochloride, a dangerous drug.

CONTRARY TO LAW.7

Criminal Case No. Q-03-114257

That on or about the 2nd day of January, 2003, in Quezon City, Philippines, the said accused, not being authorized by law to sell, dispense, deliver, transport or distribute any dangerous drug, did, then and there, willfully and unlawfully sell, dispense, deliver, transport, distribute or act as broker in the said transaction, zero

point zero three (0.03) gram of methylamphetamine hydrochloride, a dangerous drug.

CONTRARY TO LAW.8

Upon arraignment, appellant, assisted by counsel, pleaded not guilty to both charges read in Filipino, a language known and understood by him.9 On motion of the City Prosecutor, the cases were consolidated for joint trial.10Trial on the merits ensued thereafter.

The testimonies of PO1 Eduardo Roy (PO1 Roy) and PO3 Armando Rivera (PO3 Rivera) were presented by the prosecution:

PO1 Roy testified that on January 2, 2003, at about 2:00 p.m., he was on duty at Police Station 9 where he made a pre-operation report on the buy-bust operation to be conducted on the herein appellant that same afternoon.11He then proceeded to Brgy. San Vicente, Quezon City with PO3 Rivera for the operation.12 At a point near Jollibee, they met the informant who, upon seeing the subject appellant, went with him to meet PO1 Roy.13 After being introduced to the appellant as a buyer of "piso" worth of "shabu", appellant immediately produced a sachet containing the alleged drug. When appellant received the marked money amounting to P100.00,14 PO1 Roy raised his left hand, at which point his back-up officer, PO3 Rivera appeared and immediately arrested the appellant.15 The appellant was immediately brought to the Police Station for investigation, while the two sachets of "shabu" and aluminum foil discovered on the said appellant were brought to the Crime Laboratory for examination.16

PO3 Rivera testified that he was the back-up officer of PO1 Roy, the poseur-buyer in the buy-bust operation conducted against the appellant in the afternoon of January 2, 2003.17 In preparation for the said operation, he conducted a short briefing and recorded the particulars of the operation they were about to carry out: the place of the operation which is at the parking lot of Jollibee Philcoa; the identification of the suspect as the appellant; and the preparation of the buy-bust money to be used.18 With respect to the buy-bust money, he prepared oneP50.00 bill, two P20.00 bills and one P10.00 bill, by making the appropriate marking on the top portion of each bill and recording their respective serial numbers.19 Later that afternoon, police officers proceeded to the meeting place. PO3 Rivera positioned himself in a parked

79

vehicle20 about 20 meters from the situs of the transaction.21 He thus had a clear view of the appellant with the informant and PO1 Roy.22 Shortly thereafter, he saw PO1 Roy make the pre-arranged signal at which point he approached the appellant to arrest him.23 He recovered the marked money from the appellant and proceeded to frisk the latter.24 Upon conducting the body search, he found another sachet which he suspected to be "shabu" and two aluminum foils. Appellant was brought to the Police Station for detention, while the items seized from him were brought to the Crime Laboratory for examination.25 The two sachets tested positive for Methylamphetamine Hydrochloride (shabu) while the aluminum foil sheets tested negative of the aforementioned substance.26

Both PO1 Roy and PO3 Rivera identified a Joint Affidavit dated January 3, 2003 during their respective testimonies, which they acknowledged to have executed subsequent to the buy-bust operation.27

The defense presented the testimonies of Joaquin Artemio Marfori, Arsenia Morales and the appellant:

Appellant denied the charges against him.28 He testified that he is a resident of Dolores, Quezon where he worked in a fertilizer store.29 He was in Manila at that time to bring money for his parents who live at Cruz na Ligas.30 As his mother did not give him enough money for his fare back to Quezon, he sidelined as a parking attendant at Philcoa in order to earn the balance of his bus fare.31 However, sometime that afternoon, two male persons in civilian clothes suddenly approached him and his co-attendant, identified themselves as policemen and poked their guns at them.32 The said policemen handcuffed them and proceeded to frisk them.33 He averred that nothing was found on him and yet the policemen still brought him to the police station.34 He denied the allegation made against him that he sold, much less possessed, the "shabu" subject of this action.35 He further testified that in the tricycle on the way to the police station, PO1 Roy took out a plastic of "shabu" from his (PO1 Roy’s) pocket and once at the station, the said policeman showed it to the desk officer and claimed that the plastic sachet was found on the appellant.36

He likewise denied having received the buy-bust money and claimed that the P50.00 bill and the two P20.00 bills, totaling P90.00, were given to him by his mother for his bus fare to

Quezon.37 He disclaimed any knowledge of theP10.00 bill.38 He further testified that he personally knew PO3 Rivera prior to the arrest, since his first cousin and PO3 Rivera had a quarrel which he had no involvement whatsoever.39 He noted the fact that it was PO3 Rivera who arrested him.40

Witness Joaquin Artemio Marfori testified that he is the employer of the appellant in his agricultural and poultry supply store in Babayan, Calamba, Laguna.41 He further stated that he allowed the appellant to go on vacation on December 12, 2003 to celebrate the New Year with his family in Manila.42 However, the appellant failed to report back for work at the start of the New Year.43

Finally, witness Arsenia Morales (Arsenia) corroborated the testimony of her son that she gave him P90.00, consisting of one P50.00 bill and two P20.00 bills as bus fare back to Laguna where he worked.44 Thinking that her son was already on his way home, she was surprised to receive a call from her daughter informing her that her son, the appellant, was arrested for possession and sale of "shabu".45

Ruling of the Regional Trial Court

On April 29, 2004, the trial court rendered a Decision finding the appellant guilty beyond reasonable doubt of illegal possession and illegal sale of dangerous drugs. The dispositive portion of the said Decision reads:

WHEREFORE, in view of the foregoing disquisition, judgment is hereby rendered finding the accused ROLDAN MORALES y Midarasa, GUILTY beyond reasonable doubt in Criminal Case No. Q-03-114257 for violation of Section 5, Article II, R.A. [No.] 9165 for drug pushing [of] zero point zero three (0.03) gram of white crystalline substance containing Methylamphetamine hydrochloride and is hereby sentenced to suffer Life Imprisonment and to pay a fine of Five Hundred Thousand (P500,000.00) pesos.

The Court likewise finds the accused ROLDAN MORALES y Midarasa GUILTY beyond reasonable doubt in Criminal Case No. Q-03-114256 for violation of Section 11, Article II, R.A. [No.] 9165 for drug possession x x x of zero point zero three (0.03) gram of white crystalline substance containing Methylamphetamine hydrochloride and is hereby sentenced to suffer an imprisonment term of Twelve

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(12) Years and One (1) Month to Thirteen (13) Years and to pay a fine of Three Hundred Fifty Thousand (P350,000.00) Pesos.

The sachets of shabu subject of these cases are ordered transmitted to the PDEA thru Dangerous Drugs Board for proper disposition after this decision becomes final.

SO ORDERED.46

The trial court held that the prosecution witnesses positively identified the appellant as the person who possessed and sold to the poseur-buyer the "shabu" subject of this case, during the buy-bust operation conducted in the afternoon of January 2, 2003.47 The trial court found that from the evidence presented, the prosecution was able to sufficiently establish the following: (1) the fact of the buy-bust operation conducted in the afternoon of January 2, 2003 at the parking lot of Jollibee Philcoa which led to the arrest of the appellant; and (2) the corpus delicti, through the presentation in court of the two sachets of white substance which was confirmed by the Chemistry Report to be methylamphetamine hydrochloride ("shabu"), found in the possession of and sold by the appellant.48

Ruling of the Court of Appeals

The CA affirmed the Decision of the trial court in toto. It found that contrary to the allegations of the appellant, there was no instigation that took place.49 Rather, a buy-bust operation was employed by the police officers to apprehend the appellant while in the act of unlawfully selling drugs.50 The appellate court further held that what is material in a prosecution for illegal sale of prohibited drugs is the proof that the transaction or sale actually took place, coupled with the presentation in court of the corpus delicti.51 Stripped of non-essentials, the CA summarized the antecedent facts of the case as follows:

PO1 Eduardo Roy prepared a pre-arranged report on the buy-bust operation to be conducted against appellant at Barangay San Vicente, Quezon City upon an informant’s tip that appellant was selling "shabu" in the said area. On the other hand, PO3 Armando Ragundiaz Rivera recorded the briefing, summary, identification of appellant and the buy-bust money to be used in the operation consisting of one (1) fifty peso bill, two (2) twenty peso bill[s] and one (1) ten peso bill. PO1 Roy who acted as the poseur-buyer and

PO3 Rivera as his back-up proceeded to University Avenue corner Commonwealth Avenue, Barangay San Vicente, Quezon City together with the informant.

PO1 Roy and the informant met appellant at the parking lot of Jollibee restaurant while PO3 Rivera positioned himself at the side of a parked car where he can easily have a clear view of the three. After PO1 Roy was introduced by the informant to the appellant as a buyer of "shabu", the latter immediately produced a sachet containing the said prohibited drugs and handed the same to him. PO1 Roy raised his left hand as the pre-arranged signal that the transaction was consummated. Thereafter, PO3 Rivera went to the area, introduced himself as a police officer and frisked appellant from whom he recovered the marked money and a matchbox, where the suspected "shabu" was placed, and two (2) aluminum foils. They informed appellant of his constitutional rights and brought him to the police station while the two (2) small transparent heat sealed sachets containing the suspected prohibited drugs and paraphernalia were turned over to the crime laboratory for examination, and which [was] later, found to be positive for methylamphetamine hydrochloride (commonly known as "shabu").52

Thence, the CA rendered judgment to wit:

WHEREFORE, premises considered, the assailed decision of the Regional Trial Court of Quezon City, Branch 103 dated April 29, 2004 is hereby AFFIRMED IN TOTO.

SO ORDERED.53

Appellant elevated the case to this Court via Notice of Appeal.54 In our Resolution dated July 12, 2006, we resolved to accept the case and required the parties to submit their respective supplemental briefs simultaneously, if they so desire, within 30 days from notice.55 Both parties adopted their respective appellant’s and appellee’s briefs, instead of filing supplemental briefs.56

Our Ruling

Appellant claims that he should not be convicted of the offenses charged since his guilt has not been proven by the prosecution beyond reasonable doubt.57 In support of his contention, appellant

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alleges that the arresting officers did not even place the proper markings on the alleged shabu and paraphernalia at the time and place of the alleged buy-bust operation.58 Appellant hence posits that this created serious doubt as to the items and actual quantity of shabu recovered, if at all.59

The Office of the Solicitor General, on the other hand, insists that the direct testimony of the two arresting officers sufficiently established the elements of illegal sale and possession of shabu.60

At the outset, we draw attention to the unique nature of an appeal in a criminal case: the appeal throws the whole case open for review and it is the duty of the appellate court to correct, cite and appreciate errors in the appealed judgment whether they are assigned or unassigned.61 On the basis of such review, we find the present appeal meritorious.

Prevailing jurisprudence uniformly hold that the trial court’s findings of fact, especially when affirmed by the CA, are, as a general rule, entitled to great weight and will not be disturbed on appeal.62 However, this rule admits of exceptions and does not apply where facts of weight and substance with direct and material bearing on the final outcome of the case have been overlooked, misapprehended or misapplied.63 After due consideration of the records of this case, evidence presented and relevant law and jurisprudence, we hold that this case falls under the exception.

In actions involving the illegal sale of dangerous drugs, the following elements must first be established: (1) proof that the transaction or sale took place and (2) the presentation in court of the corpus delicti or the illicit drug as evidence.64

On the other hand, in prosecutions for illegal possession of a dangerous drug, it must be shown that (1) the accused was in possession of an item or an object identified to be a prohibited or regulated drug, (2) such possession is not authorized by law, and (3) the accused was freely and consciously aware of being in possession of the drug.65 Similarly, in this case, the evidence of the corpus delicti must be established beyond reasonable doubt.66

With respect to corpus delicti, Section 21 of Republic Act (RA) No. 9165 provides:

Section 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 or 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:

(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 persons/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; x x x (Emphasis supplied)

In People v. Partoza,67 we held that the identity of the corpus delicti was not proven beyond reasonable doubt. In the said case, the apprehending policeman did not mark the seized drugs after he arrested the appellant in the latter’s presence. Neither did he make an inventory and take a photograph of the confiscated items in the presence of the appellant. There was no representative from the media and the Department of Justice, or any elected public official who participated in the operation and who were supposed to sign an inventory of seized items and be given copies thereof. Hence, we held in the afore-cited case that there was no compliance with the statutory safeguards. In addition, while the apprehending policeman admitted to have in his possession the shabufrom the time the appellant was apprehended at the crime scene to the police station, records are bereft of proof on how the seized items were handled from the time they left the hands of the said police officer.

We declared in People v. Orteza,68 that the failure to comply with Paragraph 1, Section 21, Article II of RA 9165 implied a concomitant failure on the part of the prosecution to establish the identity of the corpus delicti:

In People v. Laxa, where the buy-bust team failed to mark the confiscated marijuana immediately after the apprehension of the accused, the Court held that the deviation from the standard

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procedure in anti-narcotics operations produced doubts as to the origins of the marijuana. Consequently, the Court concluded that the prosecution failed to establish the identity of the corpus delicti.

The Court made a similar ruling in People v. Kimura, where the Narcom operatives failed to place markings on the seized marijuana at the time the accused was arrested and to observe the procedure and take custody of the drug.

More recently, in Zarraga v. People, the Court held that the material inconsistencies with regard to when and where the markings on the shabu were made and the lack of inventory on the seized drugs created reasonable doubt as to the identity of the corpus delicti. The Court thus acquitted the accused due to the prosecution's failure to indubitably show the identity of the shabu.

Likewise, in People v. Obmiranis,69 we acquitted the appellant due to flaws in the conduct of the post-seizure custody of the dangerous drug allegedly recovered from the appellant, together with the failure of the key persons who handled the same to testify on the whereabouts of the exhibit before it was offered in evidence in court.

In the instant case, it is indisputable that the procedures for the custody and disposition of confiscated dangerous drugs, as mandated in Section 21 of RA 9165, were not observed. The records utterly failed to show that the buy-bust team complied with these procedures despite their mandatory nature as indicated by the use of "shall" in the directives of the law. The procedural lapse is plainly evident from the testimonies of the two police officers presented by the prosecution, namely: PO1 Roy and PO3 Rivera.

PO1 Roy, in his testimony, failed to concretely identify the items seized from the appellant. Moreover, he confirmed that they did not make a list of the items seized. The patent lack of adherence to the procedural mandate of RA 9165 is manifest in his testimony, to wit:

Fiscal Jurado

x x x You mentioned that you gave the pre-arranged signal, what is that?

Witness

A- Raising my left hand.

Q- And what happened next?

A- My back up PO3 Rivera came.

Q- What [did] your back up do when you raised your hand?

A- He arrested Morales.

Q- What were you doing when he arrested Morales?

A- I put the informant away from the scene.

Q- And what happened next after that?

A- We brought him to the police station.

Q- How about the shabu, what did you do with it?

A- We brought it to the crime lab.

Q- How did you send it to crime lab?

A- Shabu and paraphernalia recovered by my companion from the suspect.

Q- How many items were sent to the crime lab?

A- 2 shabu and paraphernalia.

Q- What are the paraphernalia?

A- Foil, sir.

Q- How many foil?

A- I cannot recall.

Q- What happened to the accused in the police station?

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A- He was investigated.

Q- Do you know the accused?

A- Yes, sir.

Q- What is his name?

A- Roldan Morales.

x x x x

Fiscal Jurado

Q- If the said sachet and paraphernalia will be shown to you, how would you be able to identify the said items?

Witness

A- I could not recall "pare-pareho yung shabu"

Atty. Mosing

I will object because that would be leading on the part of the prosecution because he could not identify on what shabu.

Court

That question is overruled.

Fiscal Jurado

I am showing to you an item, would you be able to identify?

Court

Fiscal showing several shabu.

WITNESS

A- This one.

Fiscal Jurado

Q- There is another plastic sachet?

Witness

A- Recovered.

Q- How about these two?

A- I was not the one who confiscated that.

Q- What happened to the said item submitted to the crime lab?

A- Positive, sir.

x x x x

Fiscal Jurado

x x x x

Q- How about the specimen forwarded to the crime lab?

Witness

A- My companion brought that.

Q- What was your participation in the case?

A- Poseur buyer.

x x x x

Atty. Mosing

x x x x

Q- After the arrest you brought the suspect and the items to the station?

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A- Yes, sir.

Q- Did you not make a list of items you have confiscated in this case?

A- No, we turned it over to the investigator.

Q- You have presented the buy bust money a while ago, was that buy bust money suppose to be turned over to the investigator?

A- No, inquest. Upon request, I was the one who received it.70 (Emphasis supplied)

The testimony of the other arresting officer, PO3 Rivera further confirms the failure of the buy-bust team to observe the procedure mandated under Section 21 of RA 9165:

Court

Q- Where did you position yourself?

Witness

A- Parked vehicle.

Fiscal Jurado

Q- What did you notice?

Witness

A- The confidential informant introduced our poseur buyer to the suspect and after a few conversation I waited and I saw the pre-arranged signal. And when he raised his left hand that is the signal that the transaction is consummated.

Q- After he made that signal, what did you do?

A- I rushed to the area and arrest[ed] the suspect.

Q- Who was the person you took x x x custody [of]?

A- Roldan Morales

Q- And what did you do with him?

A- Because he ha[d] a marked money I got hold of it and arrest[ed] him.

Q- And what did you do with him?

A- I frisked him.

Q- And what was the result of your frisking?

A- A box of match which I was able to recover [containing] another suspected shabu.

Q- Where did you find that on his body?

A- Front [pocket of] pants.

Q- How about the match?

A- The same.

Q- What else did you find?

A- Aluminum foil.

Q- And after you recovered that evidence, what did you do with the accused?

A- We informed him of his constitutional rights and brought him to the station.

Q- How about the items you recovered?

A- Delivered it to the crime lab for examination.

Q- What else did you deliver [to] the crime lab?

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A- Request, sir.71 (Emphasis supplied)

Other than PO1 Roy and PO3 Rivera, the prosecution did not present any other witnesses. Hence, the investigator, referred to by PO1 Roy in his testimony as the one who took delivery of the seized items, was not identified nor was he presented in court. More importantly, the testifying police officers did not state that they marked the seized drugs immediately after they arrested the appellant and in the latter’s presence. Neither did they make an inventory and take a photograph of the confiscated items in the presence of the appellant. There was likewise no mention of any representative from the media and the Department of Justice, or any elected public official who participated in the operation and who were supposed to sign an inventory of seized items and be given copies thereof. None of these statutory safeguards were observed.

Even PO1 Roy, the poseur-buyer, was not certain as to the identity of the confiscated shabu, to wit:

Fiscal Jurado:

Q- If the said sachet and paraphernalia will be shown to you, how would you be able to identify the said items?

Witness

A- I could not recall "pare-pareho yung shabu".72

The procedural lapses in the handling and identification of the seized items

collectively raise doubts as to whether the items presented in court were the exact same items that were confiscated from appellant when he was apprehended.

While this Court recognizes that non-compliance by the buy-bust team with Section 21 of RA 9165 is not fatal as long as there is a justifiable ground therefor, for and as long as the integrity and the evidentiary value of the siezed items are properly preserved by the apprehending team,73 these conditions were not met in the case at bar. No explanation was offered by the testifying police officers for

their failure to observe the rule. In this respect, we cannot fault the apprehending policemen either, as PO1 Roy admitted that he was not a PDEA operative74 and the other witness, PO3 Rivera, testified that he was not aware of the procedure involved in the conduct of anti-drug operations by the PNP.75 In fine, there is serious doubt whether the drug presented in court was the same drug recovered from the appellant. Consequently, the prosecution failed to prove beyond reasonable doubt the identity of the corpus delicti.1avvphi1

Furthermore, the evidence presented by the prosecution failed to reveal the identity of the person who had custody and safekeeping of the drugs after its examination and pending presentation in court. Thus, the prosecution likewise failed to establish the chain of custody which is fatal to its cause.1avvphi1

In fine, the identity of the corpus delicti in this case was not proven beyond reasonable doubt. There was likewise a break in the chain of custody which proves fatal to the prosecution’s case. Thus, since the prosecution has failed to establish the element of corpus delicti with the prescribed degree of proof required for successful prosecution of both possession and sale of prohibited drugs, we resolve to ACQUIT Roldan Morales y Midarasa.

WHEREFORE, in view of the foregoing, the Decision of the Court of Appeals dated April 24, 2006 in CA-G.R. CR-H.C. No. 00037 affirming the judgment of conviction of the Regional Trial Court of Quezon City, Branch 103 dated April 29, 2004 is hereby REVERSED and SET ASIDE. Appellant Roldan Morales y Midarasa is ACQUITTED based on reasonable doubt, and is ordered to be immediately RELEASED from detention, unless he is confined for any other lawful cause.

The Director of the Bureau of Corrections is DIRECTED to IMPLEMENT this Decision and to report to this Court the action taken hereon within five days from receipt.

SO ORDERED.

PEOPLE OF THE PHILIPPINESvs.FERNANDO HABANA y ORANTEG.R. No. 188900              

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March 5, 2010

D E C I S I O N

ABAD, J.:

This case is about whether the forensic examiner and the police investigator are indispensable witnesses in a drugs case to establish the chain of custody over the substance seized from the accused.

The Facts and the Case

On July 21, 2003 the public prosecutor of Caloocan City filed two separate informations1 against the accused Fernando Habana before the Regional Trial Court (RTC) of that city in Criminal Cases C-68627 and C-68628 for violations of Sections 5 and 11, Article II of Republic Act (R.A.) 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002.

At the trial, the prosecution presented PO1 Fortunato Paras2 and PO2 Amadeo Tayag.3 On the other hand, the defense called to the witness stand the accused Habana and one Amelia Sevilla.4

The prosecution evidence shows that in the morning of July 17, 2003, members of the Anti-Illegal Drug Task Force Unit of the Caloocan City Police Station met with an informant at Chowking Restaurant in Sangandaan, Caloocan City. The informant told them that a certain Loloy, later on identified as the accused Habana, was selling shabu on Salmon Street.5 Acting on this, the group proceeded to the place and staked it out.6

After locating accused Habana, PO3 Rizalino Rangel held a short briefing with his unit. They decided to undertake a buy-bust operation with PO1 Paras as poseur-buyer. Rangel told Paras to scratch his head by way of signal after he had made a purchase of drugs and handed over two pieces of fifty-peso bills that made up the buy-bust money.7 Paras placed his initials "FP" on the money.8

Accompanied by the informant, Paras approached accused Habana who asked them how much they wanted to buy. Paras handed over the money to Habana who pocketed it. In turn, the latter handed over to Paras one plastic sachet that contained what appeared to

be shabu. After PO1 Paras got the plastic sachet, he executed the pre-arranged signal, introduced himself as a policeman, and arrested Habana.9

Tayag rushed to the scene and helped Paras collar Habana. Tayag searched Habana’s body and this yielded two more plastic sachets containing what appeared to be shabu and the marked bills.10 The arresting officers handed over custody of his person and the items seized from him to PO3 Fernando Moran, the investigator on duty, who placed his marking on them and submitted the same to the Philippine National Police (PNP) Crime Laboratory for forensic examination.

Forensic Chemist Police Inspector Erickson Calabocal submitted Physical Science Report D-848-03, which revealed that the white crystalline substance contained in the plastic sachets tested positive for Methamphetamine Hydrochloride, otherwise known as "shabu."11

At the pre-trial,12 the parties stipulated: 1) that the assigned forensic chemist got the police request for laboratory examination of the specimen involved and, upon examination, found it positive for methamphetamine hydrochloride13 and 2) that PO3 Fernando Moran was the investigating officer assigned to the case to whom the arresting officers turned over the accused as well as the three plastic sachets and that it was he who prepared the referral slip,14 sworn affidavit of the arresting officers,15 and the request for laboratory examination16 of the specimen subject of this case.17

Accused Habana presented a different version. According to him, on the afternoon of July 17, 2003 he was on his way home when five to seven men in civilian clothes blocked his way. He asked what the matter was and they replied that they had to search him. He resisted because he was not doing anything illegal. Still, the men frisked him and took five hundred pesos from his pocket. They then brought him to the police station where he was detained. When his wife and sister came, the police officers told them to produce P20,000.00 for his freedom. When they failed to give the amount, they charged him with illegal possession and sale of shabu.18

Amelia Sevilla testified that on the date of the incident, at around 6:00 p.m., she was about to close her store when she saw two men suddenly approach and frisk accused Habana who was just

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standing near her store. Habana raised his hands and said, "Bakit ano po ang kasalanan ko bakit ninyo ako kinakapkapan?" After the men frisked him, they got the coins in his short pants pocket and then left with him. On the following day, Sevilla heard from her neighbors that the police had arrested Habana.

On January 21, 2008, the trial court found Habana guilty of both charges and sentenced him to a penalty of life imprisonment plus a fine of P500,000.00 in Criminal Case C-68627 and imprisonment for 12 years and 1 day to 14 years and a fine of P300,000.00 in Criminal Case C-68628.

Since one of the penalties imposed was life imprisonment, the case was elevated to the Court of Appeals (CA) for review and disposition pursuant to the ruling in People v. Mateo.19 Upon review, the CA rendered a Decision20 on June 17, 2009, affirming in full the decision of the trial court. The case is on appeal to this Court.

The Issues Presented

Two issues are presented:

1. Whether or not the prosecution’s failure to present the forensic chemist and the police investigator assigned to the case is fatal to its case against accused Habana; and

2. Whether or not the prosecution failed to establish the integrity of the seized substance taken from Habana along the chain of custody.

The Rulings of the Court

One. Habana points out that the prosecution’s failure to present at the trial the informant, the investigating officer, and the forensic chemist militates against the trustworthiness of the prosecution’s evidence.

But no rule requires the prosecution to present as witness in a drugs case every person who had something to do with the arrest of the accused and the seizure of prohibited drugs from him. The discretion on which witness to present in every case belongs to the prosecutor.21

The non-presentation of the informant cannot prejudice the prosecution’s theory of the case. His testimony would merely be corroborative since police officers Paras and Tayag who witnessed everything already testified. Besides, as a rule, it is rarely that the prosecutor would present the informant because of the need to hide his identity and preserve his invaluable service to the police.22

The prosecution did not deliberately omit the presentation of the forensic chemist who examined the seized substance or the investigating officer who was assigned to the case. As the trial court said in its decision, the prosecution wanted to present both as witnesses but the parties chose instead to stipulate on the substance of their testimonies.23

Accused Habana also insists that the RTC should not have admitted the laboratory report in evidence for failure of the forensic chemist to testify. But, as the Office of the Solicitor General correctly pointed out, the parties agreed at the pre-trial to dispense with such testimony and just stipulate that the police submitted the drug specimens involved in the case to the crime laboratory for analysis; that forensic chemist Calabocal examined it; that the result was positive for methamphetamine hydrochloride; and that this fact was as stated in Calabocal’s report. It is too late for Habana to now impugn the veracity of such report.

Two. Accused Habana points out that, since the police officers involved failed to adhere strictly to the requirements of Section 21(1) of R.A. 9165, the evidence of the seized shabu cannot be admitted against him.

In all prosecutions for the violation of The Dangerous Drugs Act, the existence of the prohibited drug has to be proved.24 The chain of custody rule requires that testimony be presented about every link in the chain, from the moment the item was seized up to the time it is offered in evidence. To this end, the prosecution must ensure that the substance presented in court is the same substance seized from the accused.

While this Court recognizes substantial adherence to the requirements of R.A. 9165 and its implementing rules and regulations, not perfect adherence, is what is demanded of police officers attending to drugs cases,25 still, such officers must present justifiable reason for their imperfect conduct and show that the integrity and evidentiary value of the seized items had been

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preserved. Here, however, they failed to meet these conditions. The police officers offered no explanation for their failure to observe the chain of custody rule.

The prosecution failed to show how the seized items changed hands, from when the police officers seized them from Habana to the time they were presented in court as evidence. PO1 Paras said that he turned over the sachets of shabu to the investigator on duty. But the prosecution did not adduce evidence on what the investigator on duty did with the seized articles, how these got to the laboratory technician, and how they were kept before being adduced in evidence at the trial.1avvphi1

Usually, the police officer who seizes the suspected substance turns it over to a supervising officer, who would then send it by courier to the police crime laboratory for testing. Since it is unavoidable that possession of the substance changes hand a number of times, it is imperative for the officer who seized the substance from the suspect to place his marking on its plastic container and seal the same, preferably with adhesive tape that cannot be removed without leaving a tear on the plastic container. At the trial, the officer can then identify the seized substance and the procedure he observed to preserve its integrity until it reaches the crime laboratory.

If the substance is not in a plastic container, the officer should put it in one and seal the same. In this way the substance would assuredly reach the laboratory in the same condition it was seized from the accused. Further, after the laboratory technician tests and verifies the nature of the substance in the container, he should put his own mark on the plastic container and seal it again with a new seal since the police officer’s seal has been broken. At the trial, the technician can then describe the sealed condition of the plastic container when it was handed to him and testify on the procedure he took afterwards to preserve its integrity.

If the sealing of the seized substance has not been made, the prosecution would have to present every police officer, messenger, laboratory technician, and storage personnel, the entire chain of custody, no matter how briefly one’s possession has been. Each of them has to testify that the substance, although unsealed, has not been tampered with or substituted while in his care.

Since the failure in this case to comply with the procedure in the custody of seized drugs compromised the identity and integrity of the items seized, which is the corpus delicti of each of the crimes charged against Habana, his acquittal is in order.

WHEREFORE, the Court GRANTS the petition, REVERSES and SETS ASIDE the decision of the Court of Appeals in CA-G.R. CR-H.C. 03165 dated June 17, 2009 as well as the decision of the Regional Trial Court of Caloocan City, Branch 120, in Criminal Cases C-68627 and C-68628, and ACQUITS the accused-appellant Fernando Habana y Orante on the ground of reasonable doubt.

Let a copy of this Decision be furnished the Director, Bureau of Corrections, Muntinlupa City for immediate implementation. The Director of the Bureau of Corrections is DIRECTED to report the action he has taken to this Court within five days from receipt of this Decision.

SO ORDERED.

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ALFREDO T. ROMUALDEZvsTHE HONORABLE SANDIGANBAYAN (THIRD DIVISION) and THE REPUBLIC OF THE PHILIPPINES,G.R. No. 161602July 13, 2010

DECISION

ABAD, J.:

This case is about the Ombudsman’s authority to conduct

preliminary investigation in a forfeiture case where the petitioner

allegedly amassed ill-gotten wealth before February 25, 1986.

The Facts and the Case

On March 6, 1996 respondent Republic of the Philippines

(Republic) filed an action for the forfeiture of alleged unlawfully

acquired property with the Sandiganbayan in Civil Case 0167

against petitioner Alfredo T. Romualdez and his wife Agnes Sison

Romualdez as well as against Romson Realty, Inc., R & S Transport,

Inc., Fidelity Management, Inc., and Dio Island Resort, Inc.

(collectively, the Romualdezes) pursuant to Republic Act (R.A.)

1379.1[1]

On January 16, 2000 the Romualdezes filed a motion to

dismiss the action on grounds of a) violation of their right to a

speedy disposition of their case; b) lack of jurisdiction of the

Sandiganbayan over the action; c) prematurity; d) prescription; and

e) litis pendentia. On September 11, 2002 the Sandiganbayan

denied the motion. It also denied on March 10, 2003 their

subsequent motion for reconsideration.

On March 31, 2003 the Romualdezes next filed a motion for

preliminary investigation and to suspend proceedings.2[2] They

claim that since Civil Case 0167 was a forfeiture proceeding filed

under R.A. 1379, the Ombudsman should have first conducted a

“previous inquiry similar to preliminary investigations in criminal

cases” before the filing of the case pursuant to Section 2 of the

law.3[3]

In its Comment4[4] on the motion, the Republic pointed out

that the Office of the Ombudsman in fact conducted such a

preliminary investigation in 1991 in OMB-0-91-08205[5] and issued

on January 22, 1992 a resolution, recommending the endorsement

of the matter to the Office of the Solicitor General (OSG) for the

filing of the forfeiture case.

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On August 13, 2003 the Sandiganbayan issued a resolution,6

[6] denying the Romualdezes’ March 31, 2003 motion. It also denied

by resolution on December 3, 2003 their subsequent motion for

reconsideration.7[7] Thus, the Romualdezes filed the present

petition for certiorari and prohibition, seeking to annul the

Sandiganbayan’s rulings and prevent it from further proceeding

with Civil Case 0167 until another preliminary investigation is

conducted in their case.

The Question Presented

The sole question presented in this case is whether or not

the preliminary investigation that the Ombudsman conducted in

OMB-0-91-0820 in 1991 satisfied the requirement of the law in

forfeiture cases.

The Ruling of the Court

The Romualdezes point out that the Office of the

Ombudsman should not have conducted an investigation of their

case, since its authority to investigate ill-gotten or unexplained

wealth cases pertained only to wealth amassed after February 25,

1986 and not before that date.8[8] Since the Romualdezes acquired

the allegedly ill-gotten wealth involved in their case as early as

1970, then the Ombudsman had no authority to conduct the

investigation that it did in OMB-0-91-0820. In the absence of a

prior valid preliminary investigation, the forfeiture proceedings in

Civil Case 0167 cannot continue.

In addition, the Romualdezes insist that it was improper for

the Ombudsman to have conducted its investigation in their

absence. The spouses Alfredo and Agnes Romualdez were in the

United States when that investigation took place. They were thus

denied their right to be heard in that investigation.

But, as the Sandiganbayan correctly pointed out, quoting

Republic v. Sandiganbayan,9[9] the Ombudsman has under its

general investigatory powers the authority to investigate forfeiture

cases where the alleged ill-gotten wealth had been amassed before

February 25, 1986. Thus:

Nonetheless, while we do not discount the authority of the Ombudsman, we believe and so hold that the exercise of his correlative powers to both investigate and initiate the proper action for the recovery of ill-gotten and/or unexplained wealth is restricted only to cases for the recovery of ill-gotten and/or unexplained wealth which were amassed after February 25, 1986. Prior to said date, the Ombudsman is without authority to initiate such forfeiture proceedings. We, however, uphold his authority to investigate cases for the forfeiture or recovery of such ill-gotten and/or unexplained wealth amassed even before the aforementioned date, pursuant to his general investigatory power under Section 15(1) of Republic Act No. 6770.10[10]

(Emphasis supplied)

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And, although it was the Ombudsman who conducted the

preliminary investigation, it was the OSG that instituted the action

in Civil Case 0167 in line with the Court’s ruling in the above-cited

Republic and other cases that followed.

The Court cannot also subscribe to the Romualdezes’ claim

that they are entitled to a new preliminary investigation since they

had no opportunity to take part in the one held in 1991, in OMB-0-

91-0820. They admit that the subpoena for that investigation had

been sent to their last known residence at the time it was

conducted.11[11] The Republic categorically insists that the

appropriate subpoena had been served on the Romualdezes.12[12]

Actually, the lament of the spouses was that they left the

Philippines because of danger to their lives after the EDSA

revolution of February 1986 and so could not take part in the

proceedings against them. While it is true that the Court

characterized the departure of the Romualdezes as forced upon

them by the uncertainty of the situation in 1986, it also said that

such was the case only until things shall have stabilized.13[13] The

Court will take judicial notice of the fact that the people’s

ratification of the 1987 Constitution on February 2, 1987 signaled

the return to normalcy of the political situation in the Philippines.

Consequently, the Romualdezes had no valid excuse for not

responding to the subpoena served on them at their last known

address in 1991, which they do not deny having received.

The Ombudsman could not be faulted for proceeding with

the investigation of the Romualdezes’ cases when they did not

show up despite notice being sent to them at their last known

residence. As the Court held in a case:

The New Rules on Criminal Procedure “does not require as a condition sine qua non to the validity of the proceedings [in the preliminary investigation] the presence of the accused for as long as efforts to reach him were made, and an opportunity to controvert the evidence of the complainant is accorded him. The obvious purpose of the rule is to block attempts of unscrupulous respondents to thwart the prosecution of offenses by hiding themselves or by employing dilatory tactics.”14[14]

In sum, no reason exists for suspending or interrupting the

conduct of the forfeiture proceedings before the Sandiganbayan.

WHEREFORE, the Court DISMISSES the petition for lack of

merit.

SO ORDERED

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