CESARIO URSUA vs.

COURT OF APPEALS AND PEOPLE OF THE PHILIPPINES

G.R. No. 112170 April 10, 1996
BELLOSILLO, J.:p
This is a petition for review of the decision of the Court of Appeals which affirmed the conviction of petitioner by the
Regional Trial Court of Davao City for violation of Sec. 1 of C.A. No. 142, as amended by R.A. No. 6085, otherwise
known as "An Act to Regulate the Use of Aliases". 1
Petitioner Cesario Ursua was a Community Environment and Natural Resources Officer assigned in Kidapawan,
Cotabato. On 9 May 1989 the Provincial Governor of Cotabato requested the Office of the Ombudsman in Manila to
conduct an investigation on a complaint for bribery, dishonesty, abuse of authority and giving of unwarranted benefits
by petitioner and other officials of the Department of Environment and Natural Resources. The complaint was initiated
by the Sangguniang Panlalawigan of Cotabato through a resolution advising the Governor to report the involvement of
petitioner and others in the illegal cutting of mahogany trees and hauling of illegally-cut logs in the area. 2
On 1 August 1989 Atty. Francis Palmones, counsel for petitioner, wrote the Office of the Ombudsman in Davao City
requesting that he be furnished copy of the complaint against petitioner. Atty. Palmones then asked his client Ursua to
take his letter-request to the Office of the Ombudsman because his law firm's messenger, Oscar Perez, had to attend
to some personal matters. Before proceeding to the Office of the Ombudsman petitioner talked to Oscar Perez and
told him that he was reluctant to personally ask for the document since he was one of the respondents before the
Ombudsman. However, Perez advised him not to worry as he could just sign his (Perez) name if ever he would be
required to acknowledge receipt of the complaint. 3
When petitioner arrived at the Office of the Ombudsman in Davao City he was instructed by the security officer to
register in the visitors' logbook. Instead of writing down his name petitioner wrote the name "Oscar Perez" after which
he was told to proceed to the Administrative Division for the copy of the complaint he needed. He handed the letter of
Atty. Palmones to the Chief of the Administrative Division, Ms. Loida Kahulugan, who then gave him a copy of the
complaint, receipt of which he acknowledged by writing the name "Oscar Perez." 4
Before petitioner could leave the premises he was greeted by an acquaintance, Josefa Amparo, who also worked in
the same office. They conversed for a while then he left. When Loida learned that the person who introduced himself
as "Oscar Perez" was actually petitioner Cesario Ursua, a customer of Josefa Amparo in her gasoline station, Loida
reported the matter to the Deputy Ombudsman who recommended that petitioner be accordingly charged.
On 18 December 1990, after the prosecution had completed the presentation of its evidence, petitioner without leave
of court filed a demurrer to evidence alleging that the failure of the prosecution to prove that his supposed alias was
different from his registered name in the local civil registry was fatal to its cause. Petitioner argued that no document
from the local civil registry was presented to show the registered name of accused which according to him was a
condition sine qua non for the validity of his conviction.
The trial court rejected his contentions and found him guilty of violating Sec. 1 of C.A. No. 142 as amended by R.A.
No. 6085. He was sentenced to suffer a prison term of one (1) year and one (1) day of prision correccional minimum
as minimum, to four (4) years of prision correccional medium as maximum, with all the accessory penalties provided
for by law, and to pay a fine of P4,000.00 plus costs.
Petitioner appealed to the Court of Appeals.
On 31 May 1993 the Court of Appeals affirmed the conviction of petitioner but modified the penalty by imposing an
indeterminate term of one (1) year as minimum to three (3) years as maximum and a fine of P5,000.00.
Petitioner now comes to us for review of his conviction as he reasserts his innocence. He contends that he has not
violated C.A. No. 142 as amended by R.A. No. 6085 as he never used any alias name; neither is "Oscar Perez"
his alias. An alias, according to him, is a term which connotes the habitual use of another name by which a person is
also known. He claims that he has never been known as "Oscar Perez" and that he only used such name on one
occasion and it was with the express consent of Oscar Perez himself. It is his position that an essential requirement
for a conviction under C.A. No. 142 as amended by R.A. No. 6085 has not been complied with when the prosecution
failed to prove that his supposed alias was different from his registered name in the Registry of Births. He further
argues that the Court of Appeals erred in not considering the defense theory that he was charged under the wrong
law.5
Time and again we have decreed that statutes are to be construed in the light of the purposes to be achieved and the
evils sought to be remedied. Thus in construing a statute the reason for its enactment should be kept in mind and the
statute should be construed with reference to the intended scope and purpose. 6 The court may consider the spirit and
reason of the statute, where a literal meaning would lead to absurdity, contradiction, injustice, or would defeat the clear
purpose of the lawmakers.7
For a clear understanding of the purpose of C.A. No. 142 as amended, which was allegedly violated by petitioner, and
the surrounding circumstances under which the law was enacted, the pertinent provisions thereof, its amendments
and related statutes are herein cited. C.A. No. 142, which was approved on 7 November 1936, and before its
amendment by R.A. No. 6085, is entitled An Act to Regulate the Use of Aliases. It provides as follows:
 Sec. 1. Except as a pseudonym for literary purposes, no person shall use any name different from the
one with which he was christened or by which he has been known since his childhood, or such
substitute name as may have been authorized by a competent court. The name shall comprise the
patronymic name and one or two surnames.
Sec. 2. Any person desiring to use an alias or aliases shall apply for authority therefor in proceedings
like those legally provided to obtain judicial authority for a change of name. Separate proceedings
shall be had for each alias, and each new petition shall set forth the original name and
the alias or aliases for the use of which judicial authority has been, obtained, specifying the
proceedings and the date on which such authority was granted. Judicial authorities for the use
of aliases shall be recorded in the proper civil register . . . .
The above law was subsequently amended by R.A. No. 6085, approved on 4 August 1969. As amended, C.A. No. 142
now reads:
Sec. 1. Except as a pseudonym solely for literary, cinema, television, radio or other entertainment
purposes and in athletic events where the use of pseudonym is a normally accepted practice, no
person shall use any name different from the one with which he was registered at birth in the office of
the local civil registry or with which he was baptized for the first time, or in case of all alien, with which
he was registered in the bureau of immigration upon entry; or such substitute name as may have
been authorized by a competent court: Provided, That persons whose births have not been registered
in any local civil registry and who have not been baptized, have one year from the approval of this act
within which to register their names in the civil registry of their residence. The name shall comprise
the patronymic name and one or two surnames.
Sec. 2. Any person desiring to use an alias shall apply for authority therefor in proceedings like those
legally provided to obtain judicial authority for a change of name and no person shall be allowed to
secure such judicial authority for more than one alias. The petition for an alias shall set forth the
person's baptismal and family name and the name recorded in the civil registry, if different, his
immigrant's name, if an alien, and his pseudonym, if he has such names other than his original or real
name, specifying the reason or reasons for the desired alias. The judicial authority for the use of alias,
the Christian name and the alien immigrant's name shall be recorded in the proper local civil registry,
and no person shall use any name or names other than his original or real name unless the same is
or are duly recorded in the proper local civil registry.
The objective and purpose of C.A. No. 142 have their origin and basis in Act No. 3883, An Act to Regulate the Use in
Business Transactions of Names other than True Names, Prescribing the Duties of the Director of the Bureau of
Commerce and Industry in its Enforcement, Providing Penalties for Violations thereof, and for other purposes, which
was approved on 14 November 1931 and amended by Act No. 4147, approved on 28 November 1934. 8 The pertinent
provisions of Act No. 3883 as amended follow —
Sec. 1. It shall be unlawful for any person to use or sign, on any written or printed receipt including
receipt for tax or business or any written or printed contract not verified by a notary public or on any
written or printed evidence of any agreement or business transactions, any name used in connection
with his business other than his true name, or keep conspicuously exhibited in plain view in or at the
place where his business is conducted, if he is engaged in a business, any sign announcing a firm
name or business name or style without first registering such other name, or such firm name, or
business name or style in the Bureau of Commerce together with his true name and that of any other
person having a joint or common interest with him in such contract, agreement, business transaction,
or business . . . .
For a bit of history, the enactment of C.A. No. 142 as amended was made primarily to curb the common practice
among the Chinese of adopting scores of different names and aliases which created tremendous confusion in the field
of trade. Such a practice almost bordered on the crime of using fictitious names which for obvious reasons could not
be successfully maintained against the Chinese who, rightly or wrongly, claimed they possessed a thousand and one
names. C.A. No. 142 thus penalized the act of using an alias name, unless such alias was duly authorized by proper
judicial proceedings and recorded in the civil register.9
In Yu Kheng Chiau v. Republic 10 the Court had occasion to explain the meaning, concept and ill effects of the use of
an alias within the purview of C.A. No. 142 when we ruled —
There can hardly be any doubt that petitioner's use of alias "Kheng Chiau Young" in addition to his
real name "Yu Cheng Chiau" would add to more confusion. That he is known in his business, as
manager of the Robert Reid, Inc., by the former name, is not sufficient reason to allow him its use.
After all, petitioner admitted that he is known to his associates by both names. In fact, the Anselmo
Trinidad, Inc., of which he is a customer, knows him by his real name. Neither would the fact that he
had encountered certain difficulties in his transactions with government offices which required him to
explain why he bore two names, justify the grant of his petition, for petitioner could easily avoid said
difficulties by simply using and sticking only to his real name "Yu Kheng Chiau."
 The fact that petitioner intends to reside permanently in the Philippines, as shown by his having filed a
petition for naturalization in Branch V of the above-mentioned court, argues the more against the
grant of his petition, because if naturalized as a Filipino citizen, there would then be no necessity for
his further using said alias, as it would be contrary to the usual Filipino way and practice of using only
one name in ordinary as well as business transactions. And, as the lower court correctly observed, if
he believes (after he is naturalized) that it would be better for him to write his name following the
Occidental method, "he can easily file a petition for change of name, so that in lieu of the name "Yu
Kheng Chian," he can, abandoning the same, ask for authority to adopt the name Kheng Chiau
Young."
All things considered, we are of the opinion and so hold, that petitioner has not shown satisfactory
proper and reasonable grounds under the aforequoted provisions of Commonwealth Act No. 142 and
the Rules of Court, to warrant the grant of his petition for the use of an alias name.
Clearly therefore an alias is a name or names used by a person or intended to be used by him publicly and habitually
usually in business transactions in addition to his real name by which he is registered at birth or baptized the first time
or substitute name authorized by a competent authority. A man's name is simply the sound or sounds by which he is
commonly designated by his fellows and by which they distinguish him but sometimes a man is known by several
different names and these are known as aliases. 11 Hence, the use of a fictitious name or a different name belonging to
another person in a single instance without any sign or indication that the user intends to be known by this name in
addition to his real name from that day forth does not fall within the prohibition contained in C.A. No. 142 as amended.
This is so in the case at bench.
It is not disputed that petitioner introduced himself in the Office of the Ombudsman as "Oscar Perez," which was the
name of the messenger of his lawyer who should have brought the letter to that office in the first place instead of
petitioner. He did so while merely serving the request of his lawyer to obtain a copy of the complaint in which petitioner
was a respondent. There is no question then that "Oscar Perez" is not an alias name of petitioner. There is no
evidence showing that he had used or was intending to use that name as his second name in addition to his real
name. The use of the name "Oscar Perez" was made by petitioner in an isolated transaction where he was not even
legally required to expose his real identity. For, even if he had identified himself properly at the Office of the
Ombudsman, petitioner would still be able to get a copy of the complaint as a matter of right, and the Office of the
Ombudsman could not refuse him because the complaint was part of public records hence open to inspection and
examination by anyone under the proper circumstances.
While the act of petitioner may be covered by other provisions of law, such does not constitute an offense within the
concept of C.A. No. 142 as amended under which he is prosecuted. The confusion and fraud in business transactions
which the anti-alias law and its related statutes seek to prevent are not present here as the circumstances are peculiar
and distinct from those contemplated by the legislature in enacting C.A. No. 142 as amended. There exists a valid
presumption that undesirable consequences were never intended by a legislative measure and that a construction of
which the statute is fairly susceptible is favored, which will avoid all objectionable, mischievous, indefensible, wrongful,
evil and injurious consequences. 12 Moreover, as C.A. No. 142 is a penal statute, it should be construed strictly against
the State and in favor of the accused. 13 The reason for this principle is the tenderness of the law for the rights of
individuals and the object is to establish a certain rule by conformity to which mankind would be safe, and the
discretion of the court limited. 14 Indeed, our mind cannot rest easy on the proposition that petitioner should be
convicted on a law that does not clearly penalize the act done by him.
WHEREFORE, the questioned decision of the Court of Appeals affirming that of the Regional Trial Court of Davao City
is REVERSED and SET ASIDE and petitioner CESARIO URSUA is ACQUITTED of the crime charged.
SO ORDERED.
PEOPLE vs. JOSEPH EJERCITO ESTRADA and SPECIAL DIVISION OF THE SANDIGANBAYAN
G.R. Nos. 164368-69 April 2, 2009
BRION, J.:
The People of the Philippines (the People) filed this Petition for Review on Certiorari 1 to seek the reversal of the
Sandiganbayan’s Joint Resolution dated July 12, 2004, granting respondent Joseph Ejercito Estrada’s (Estrada)
demurrer to evidence in Crim. Case No. 26565.2
THE FACTS
On April 4, 2001, an Information for plunder (docketed as Crim. Case No. 26558) was filed with the Sandiganbayan
against respondent Estrada, among other accused. A separate Information for illegal use of alias, docketed as Crim.
Case No. 26565, was likewise filed against Estrada. The Amended Information in Crim. Case No. 26565 reads:
That on or about 04 February 2000, or sometime prior or subsequent thereto, in the City of Manila, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, being then President of the Republic of the
Philippines, without having been duly authorized, judicially or administratively, taking advantage of his position and
committing the offense in relation to office, i.e., in order to CONCEAL THE ill-gotten wealth HE ACQUIRED during his
tenure and his true identity as THE President of the Republic of the Philippines, did then and there, willfully, unlawfully
and criminally REPRESENT HIMSELF AS ‘JOSE VELARDE’ IN SEVERAL TRANSACTIONS AND use and employ
the SAID alias "Jose Velarde" which IS neither his registered name at birth nor his baptismal name, in signing
documents with Equitable PCI Bank and/or other corporate entities.
CONTRARY TO LAW.
Crim. Case Nos. 26565 and 26558 were subsequently consolidated for joint trial. Still another Information, this time for
perjury and docketed as Crim. Case No. 26905, was filed with the Sandiganbayan against Estrada. This was later
consolidated, too, with Crim. Cases No. 26558 and 26565.
Estrada was subsequently arrested on the basis of a warrant of arrest that the Sandiganbayan issued.
On January 11, 2005, we ordered the creation of a Special Division in the Sandiganbayan to try, hear, and decide the
charges of plunder and related cases (illegal use of alias and perjury) against respondent Estrada. 3
At the trial, the People presented testimonial and documentary evidence to prove the allegations of the Informations
for plunder, illegal use of alias, and perjury. The People’s evidence for the illegal alias charge, as summarized by the
Sandiganbayan, consisted of:
A. The testimonies of Philippine Commercial and Industrial Bank (PCIB) officers Clarissa G. Ocampo
(Ocampo) and Atty. Manuel Curato (Curato) who commonly declared that on February 4, 2000, Estrada
opened a numbered trust account (Trust Account C-163) with PCIB and signed as "Jose Velarde" in the
account opening documents; both Ocampo and Curato also testified that Aprodicio Lacquian and Fernando
Chua were present on that occasion;
B. (1) The testimony of PCIB-Greenhills Branch Manager Teresa Barcelan, who declared that a certain Baby
Ortaliza (Ortaliza) transacted several times with her; that Ortaliza deposited several checks in PCIB Savings
Account No. 0160-62502-5 under the account name "Jose Velarde" on the following dates (as evidenced by
deposit receipts duly marked in evidence):
a. 20 October 1999 (Exh. "MMMMM")
b. 8 November 1999 (Exh. "LLLLL")
c. 22 November 1999 (Exh. "NNNNN")
d. 24 November 1999 (Exh. "OOOOO")
e. 25 November 1999 (Exh. "PPPPP")
f. 20 December 1999 (Exh. "QQQQQ")
g. 21 December 1999 (Exh. "RRRRR")
h. 29 December 1999 (Exh. "SSSSS")
i. 4 January 2000 (Exh. "TTTTT")
j. 10 May 2000 (Exh. "UUUUU")
k. 6 June 2000 (Exh. "VVVVV")
l. 25 July 2000 (Exh. "WWWWW")
(2) Documents duly identified by witnesses showing that Lucena Ortaliza was employed in the Office of the
Vice President and, later on, in the Office of the President when Estrada occupied these positions and when
deposits were made to the Jose Velarde Savings Account No. 0160-62502-5.
The People filed its Formal Offer of Exhibits in the consolidated cases, which the Sandiganbayan admitted into
evidence in a Resolution dated October 13, 2003.4 The accused separately moved to reconsider the Sandiganbayan
Resolution;5 the People, on the other hand, filed its Consolidated Comment/Opposition to the motions. 6 The
Sandiganbayan denied the motions in its Resolution dated November 17, 2003. 7
After the People rested in all three cases, the defense moved to be allowed to file a demurrer to evidence in these
cases.8 In its Joint Resolution dated March 10, 2004,9 the Sandiganbayan only granted the defense leave to file
demurrers in Crim. Case Nos. 26565 (illegal use of alias) and 26905 (perjury).
Estrada filed separate Demurrers to Evidence for Crim. Case Nos. 26565 and 26905. 10 His demurrer to evidence for
Crim. Case No. 26565 (illegal use of alias) was anchored on the following grounds 11:
1. Of the thirty-five (35) witnesses presented by the prosecution, only two (2) witnesses, Ms. Clarissa Ocampo
and Atty. Manuel Curato, testified that on one occasion (4 February 2000), they saw movant use the name
"Jose Velarde";
2. The use of numbered accounts and the like was legal and was prohibited only in late 2001 as can be
gleaned from Bangko Sentral Circular No. 302, series of 2001, dated 11 October 2001;
3. There is no proof of public and habitual use of alias as the documents offered by the prosecution are
banking documents which, by their nature, are confidential and cannot be revealed without following proper
procedures; and
4. The use of alias is absorbed in plunder.
The People opposed the demurrers through a Consolidated Opposition that presented the following arguments: 12
1. That the use of fictitious names in bank transaction was not expressly prohibited until BSP No. 302 is of no
moment considering that as early as Commonwealth Act No. 142, the use of alias was already prohibited.
Movant is being prosecuted for violation of C.A. No. 142 and not BSP Circular No. 302;
2. Movant’s reliance on Ursua vs. Court of Appeals (256 SCRA 147 [1996]) is misplaced;
3. Assuming arguendo that C.A. No. 142, as amended, requires publication of the alias and the habitual use
thereof, the prosecution has presented more than sufficient evidence in this regard to convict movant for
illegal use of alias; and
4. Contrary to the submission of movant, the instant case of illegal use of alias is not absorbed in plunder.
Estrada replied to the Consolidated Opposition through a Consolidated Reply Opposition.
THE ASSAILED SANDIGANBAYAN’S RULING
The Sandiganbayan issued on July 12, 2004 the Resolution now assailed in this petition. The salient points of the
assailed resolution are:
First – the coverage of Estrada’s indictment. The Sandiganbayan found that the only relevant evidence for the
indictment are those relating to what is described in the Information – i.e., the testimonies and documents on the
opening of Trust Account C-163 on February 4, 2000. The Sandiganbayan reasoned out that the use of the disjunctive
"or" between "on or about 04 February 2000" and "sometime prior or subsequent thereto" means that the act/s
allegedly committed on February 4, 2000 could have actually taken place prior to or subsequent thereto; the use of the
conjunctive was simply the prosecution’s procedural tool to guard against any variance between the date stated in the
Information and that proved during the trial in a situation in which time was not a material ingredient of the offense; it
does not mean and cannot be read as a roving commission that includes acts and/or events separate and distinct
from those that took place on the single date "on or about 04 February 2000 or sometime prior or subsequent thereto."
The Sandiganbayan ruled that the use of the disjunctive "or" prevented it from interpreting the Information any other
way.
Second – the People’s failure to present evidence that proved Estrada’s commission of the offense. The
Sandiganbayan found that the People failed to present evidence that Estrada committed the crime punished under
Commonwealth Act No. 142, as amended by Republic Act (R.A.) No. 6085 (CA 142), as interpreted by the Supreme
Court in Ursua v. Court of Appeals.13 It ruled that there is an illegal use of alias within the context of CA 142 only if the
use of the alias is public and habitual. In Estrada’s case, the Sandiganbayan noted, the application of the principles
was not as simple because of the complications resulting from the nature of the transaction involved – the alias was
used in connection with the opening of a numbered trust account made during the effectivity of R.A. No. 1405, as
amended,14 and prior to the enactment of Republic R.A. No. 9160. 15
Estrada did not publicly use the alias "Jose Velarde":
a. Estrada’s use of the alias "Jose Velarde" in his dealings with Dichavez and Ortaliza after February 4, 2000
is not relevant in light of the conclusion that the acts imputed to Estrada under the Information were the act/s
committed on February 4, 2000 only. Additionally, the phrase, "Estrada did … represent himself as ‘Jose
Velarde’ in several transactions," standing alone, violates Estrada’s right to be informed of the nature and the
cause of the accusation, because it is very general and vague. This phrase is qualified and explained by the
succeeding phrase – "and use and employ the said alias ‘Jose Velarde’" – which "is neither his registered
name at birth nor his baptismal name, in signing documents with Equitable PCI Bank and/or other corporate
entities." Thus, Estrada’s representations before persons other than those mentioned in the Information are
immaterial; Ortaliza and Dichavez do not fall within the "Equitable PCI Bank and/or other corporate entities"
specified in the Information. Estrada’s representations with Ortaliza and Dichavez are not therefore covered
by the indictment.
b. The Sandiganbayan rejected the application of the principle in the law of libel that mere communication to a
third person is publicity; it reasoned out that that the definition of publicity is not limited to the way it is defined
under the law on libel; additionally, the application of the libel law definition is onerous to the accused and is
 precluded by the ruling in Ursua that CA No. 142, as a penal statute, should be construed strictly against the
State and favorably for the accused. It ruled that the definition under the law on libel, even if it applies,
considers a communication to a third person covered by the privileged communication rule to be non-
actionable. Estrada’s use of the alias in front of Ocampo and Curato is one such privileged communication
under R.A. No. 1405, as amended. The Sandiganbayan said:
Movant’s act of signing "Jose Velarde" in bank documents being absolutely confidential, the witnessing thereof
by bank officers who were likewise sworn to secrecy by the same law cannot be considered as ‘public’ as to
fall within the ambit of CA 142 as amended. On account of the absolute confidentiality of the transaction, it
cannot be said that movant intended to be known by this name in addition to his real name. Confidentiality
and secrecy negate publicity. Ursua instructs:
Hence, the use of a fictitious name or a different name belonging to another person in a single instance
without any sign or indication that the user intends to be known by this name in addition to his real name from
that day forth does not fall within the prohibition in C.A. No. 142 as amended.
c. The Sandiganbayan further found that the intention not to be publicly known by the name "Jose Velarde" is
shown by the nature of a numbered account – a perfectly valid banking transaction at the time Trust Account
C-163 was opened. The opening, too, of a numbered trust account, the Sandiganbayan further ruled, did not
impose on Estrada the obligation to disclose his real identity – the obligation R.A. No. 6713 imposes is to file
under oath a statement of assets and liabilities.16 Reading CA No. 142, R.A. No. 1405 and R.A. No. 6713
together, Estrada had the absolute obligation to disclose his assets including the amount of his bank deposits,
but he was under no obligation at all to disclose the other particulars of the bank account (such as the name
he used to open it).
Third – the effect of the enactment of R.A. No. 9160.17 The Sandiganbayan said that the absolute prohibition in R.A.
No. 9160 against the use of anonymous accounts, accounts under fictitious names, and all other similar accounts, is a
legislative acknowledgment that a gaping hole previously existed in our laws that allowed depositors to hide their true
identities. The Sandiganbayan noted that the prohibition was lifted from Bangko Sentral ng Pilipinas (BSP) Circular
No. 251 dated July 7, 2000 – another confirmation that the opening of a numbered trust account was perfectly legal
when it was opened on February 4, 2000.
The Sandiganbayan ruled that the provisions of CA No. 142, as interpreted in Ursua, must necessarily be harmonized
with the provisions of R.A. No.1405 and R.A. No. 9160 under the principle that every statute should be construed in a
way that will harmonize it with existing laws. A reasonable scrutiny, the Sandiganbayan said, of all these laws in
relation to the present case, led it to conclude that the use of an alias within the context of a bank transaction
(specifically, the opening of a numbered account made before bank officers) is protected by the secrecy provisions of
R.A. No. 1405, and is thus outside the coverage of CA No. 142 until the passage into law of R.A. No. 9160.
THE PETITION
The People filed this petition raising the following issues:
1. Whether the court a quo gravely erred and abused its discretion in dismissing Crim. Case No. 26565 and in holding that
the use by respondent Joseph Estrada of his alias "Jose Velarde" was not public despite the presence of Messrs.
Aprodicio Laquian and Fernando Chua on 4 February 2000;
2. Whether the court a quo gravely erred and abused its discretion in dismissing Crim. Case No. 26565 and in holding that
the use by respondent Joseph Estrada of his alias "Jose Velarde" was allowable under banking rules, despite the clear
prohibition under Commonwealth Act No. 142;
3. Whether the court a quo gravely erred and abused its discretion in dismissing Crim. Case No. 26565 and in applying
R.A. No. 1405 as an exception to the illegal use of alias punishable under Commonwealth Act No. 142;
4. Whether the alleged harmonization and application made by the court a quo of R.A. No.1405 and Commonwealth Act
No. 142 were proper;
5. Whether the court a quo gravely erred and abused its discretion in limiting the coverage of the amended Information in
Crim. Case No. 26565 to the use of the alias "Jose Velarde" by respondent Joseph Estrada on February 4, 2000;
6. Whether the court a quo gravely erred and abused its discretion in departing from its earlier final finding on the non-
applicability of Ursua v. Court of Appeals and forcing its application to the instant case.
THE COURT’S RULING
The petition has no merit.
The Law on Illegal Use of Alias and the Ursua Ruling
Sections 1 and 2 of CA No. 142, as amended, read:
Section 1. Except as a pseudonym solely for literary, cinema, television, radio or other entertainment purposes and in
athletic events where the use of pseudonym is a normally accepted practice, no person shall use any name different
from the one with which he was registered at birth in the office of the local civil registry or with which he was baptized
for the first time, or in case of an alien, with which he was registered in the bureau of immigration upon entry; or such
substitute name as may have been authorized by a competent court: Provided, That persons whose births have not
been registered in any local civil registry and who have not been baptized, have one year from the approval of this act
within which to register their names in the civil registry of their residence. The name shall comprise the patronymic
name and one or two surnames.
Section 2. Any person desiring to use an alias shall apply for authority therefor in proceedings like those legally
provided to obtain judicial authority for a change of name and no person shall be allowed to secure such judicial
authority for more than one alias. The petition for an alias shall set forth the person's baptismal and family name and
the name recorded in the civil registry, if different, his immigrant's name, if an alien, and his pseudonym, if he has such
names other than his original or real name, specifying the reason or reasons for the desired alias. The judicial
authority for the use of alias, the Christian name and the alien immigrant's name shall be recorded in the proper local
civil registry, and no person shall use any name or names other than his original or real name unless the same is or
are duly recorded in the proper local civil registry.
How this law is violated has been answered by the Ursua definition of an alias – "a name or names used by a person
or intended to be used by him publicly and habitually usually in business transactions in addition to his real name by
which he is registered at birth or baptized the first time or substitute name authorized by a competent authority." There
must be, in the words of Ursua, a "sign or indication that the user intends to be known by this name (the alias) in
addition to his real name from that day forth … [for the use of alias to] fall within the prohibition contained in C.A. No.
142 as amended."18
Ursua further relates the historical background and rationale that led to the enactment of CA No. 142, as follows:
The enactment of C.A. No. 142 was made primarily to curb the common practice among the Chinese of adopting
scores of different names and aliases which created tremendous confusion in the field of trade. Such a practice almost
bordered on the crime of using fictitious names which for obvious reasons could not be successfully maintained
against the Chinese who, rightly or wrongly, claimed they possessed a thousand and one names. C.A. No. 142 thus
penalized the act of using an alias name, unless such alias was duly authorized by proper judicial proceedings and
recorded in the civil register.19
Following the doctrine of stare decisis,20 we are guided by the Ursua ruling on how the crime punished under CA No.
142 may be committed. Close adherence to this ruling, in other words, is unavoidable in the application of and the
determination of criminal liability under CA No. 142.
Among the many grounds the People invokes to avoid the application of the Ursua ruling proceeds from Estrada’s
position in the government; at the time of the commission of the offense, he was the President of the Republic who is
required by law to disclose his true name. We do not find this argument sufficient to justify a distinction between a man
on the street, on one hand, and the President of the Republic, on the other, for purposes of applying CA No. 142. In
the first place, the law does not make any distinction, expressly or impliedly, that would justify a differential treatment.
CA No. 142 as applied to Estrada, in fact allows him to use his cinema or screen name of Joseph Estrada, which
name he has used even when he was already the President of the Philippines. Even the petitioner has acquiesced to
the use of the screen name of the accused, as shown by the title of the present petition. Additionally, any distinction
we make based on the People’s claim unduly prejudices Estrada; this is proscribed by the Ursua dictum that CA No.
142, as a penal statute, should be construed strictly against the State and in favor of the accused. 21 The mode of
violating CA No. 142 is therefore the same whoever the accused may be.
The People also calls our attention to an earlier Sandiganbayan ruling (Resolution dated February 6, 2002) denying
Estrada’s motion to quash the Information. This earlier Resolution effectively rejected the application of Ursua under
the following tenor:
The use of the term "alias" in the Amended Information in itself serves to bring this case outside the ambit of the ruling
in the case of Ursua v. Court of Appeals (256 SCRA 147 [1996]), on which the accused heavily relies in his motion to
quash. The term "alias" means "otherwise known as" (Webster Third New International Dictionary, 1993 ed., p. 53).
The charge of using an "alias" logically implies that another name has been used publicly and habitually. Otherwise,
he will not be known by such name. In any case, the amended information adverts to "several transactions" and
signing of documents with the Equitable PCI Bank and/or other corporate entities where the above-mentioned alias
was allegedly employed by the accused.
The facts alleged in the information are distinctly different from facts established in the Ursua case where another
name was used by the accused in a single instance without any sign or indication that that [sic] he intended to be
known from that day by this name in addition to his real name. 22
The People argues that the Sandiganbayan gravely abused its discretion in applying Ursua notwithstanding this earlier
final ruling on its non-applicability – a ruling that binds the parties in the present case. The People thus claims that the
Sandiganbayan erred to the point of gravely abusing its discretion when it resurrected the application of Ursua,
resulting in the reversal of its earlier final ruling.
We find no merit in this argument for two reasons. First, the cited Sandiganbayan resolution is a mere interlocutory
order – a ruling denying a motion to quash23 – that cannot be given the attributes of finality and immutability that are
generally accorded to judgments or orders that finally dispose of the whole, of or particular matters in, a case. 24 The
Sandiganbayan resolution is a mere interlocutory order because its effects would only be provisional in character, and
would still require the issuing court to undertake substantial proceedings in order to put the controversy to rest. 25 It is
basic remedial law that an interlocutory order is always under the control of the court and may be modified or
rescinded upon sufficient grounds shown at any time before final judgment. 26 Perez v. Court of Appeals,27 albeit a civil
case, instructively teaches that an interlocutory order carries no res adjudicata effects. Says Perez:
The Decision in CA-G.R. No. 10415 having resolved only an interlocutory matter, the principle of res judicata cannot
be applied in this case. There can be no res judicata where the previous order in question was not an order or
judgment determinative of an issue of fact pending before the court but was only an interlocutory order because it
required the parties to perform certain acts for final adjudication. In this case, the lifting of the restraining order paved
the way for the possession of the fishpond on the part of petitioners and/or their representatives pending the resolution
of the main action for injunction. In other words, the main issue of whether or not private respondent may be
considered a sublessee or a transferee of the lease entitled to possess the fishpond under the circumstances of the
case had yet to be resolved when the restraining order was lifted. 28
Second, in the earlier motion to quash, the Sandiganbayan solely looked at the allegations of the Information to
determine the sufficiency of these allegations and did not consider any evidence aliunde. This is far different from the
present demurrer to evidence where the Sandiganbayan had a fuller view of the prosecution’s case, and was faced
with the issue of whether the prosecution’s evidence was sufficient to prove the allegations of the Information. Under
these differing views, the Sandiganbayan may arrive at a different conclusion on the application of Ursua, the leading
case in the application of CA 142, and the change in ruling is not per se indicative of grave abuse of discretion. That
there is no error of law is strengthened by our consideration of the Sandiganbayan ruling on the application of Ursua.
In an exercise of caution given Ursua’s jurisprudential binding effect, the People also argues in its petition that
Estrada’s case is different from Ursua’s for the following reasons: (1) respondent Estrada used and intended to
continually use the alias "Jose Velarde" in addition to the name "Joseph Estrada"; (2) Estrada’s use of the alias was
not isolated or limited to a single transaction; and (3) the use of the alias "Jose Velarde" was designed to cause and
did cause "confusion and fraud in business transactions" which the anti-alias law and its related statutes seek to
prevent. The People also argues that the evidence it presented more than satisfied the requirements of CA No. 142,
as amended, and Ursua, as it was also shown or established that Estrada’s use of the alias was public.
In light of our above conclusions and based on the parties’ expressed positions, we shall now examine within the
Ursua framework the assailed Sandiganbayan Resolution granting the demurrer to evidence. The prosecution has the
burden of proof to show that the evidence it presented with the Sandiganbayan satisfied the Ursua requirements,
particularly on the matter of publicity and habituality in the use of an alias.
What is the coverage of the indictment?
The People argues that the Sandiganbayan gravely erred and abused its discretion in limiting the coverage of the
amended Information in Crim. Case No. 26565 to Estrada’s use of the alias "Jose Velarde" on February 4, 2000. It
posits that there was a main transaction – one that took place on February 4, 2000 – but there were other transactions
covered by the phrase "prior to or subsequent thereto; the Information specifically referred to "several transactions" …
"with Equitable PCI Bank and/or other corporate entities." To the People, the restrictive finding – that the phrase "prior
to or subsequent thereto" is absorbed by the phrase "on or about 04 February 2000" – drastically amends the
succeeding main allegations on the constitutive criminal acts by removing the plurality of both the transactions
involved and the documents signed with various entities; there is the undeniable essential relationship between the
allegations of the multiplicity of transactions, on one hand, and the additional antecedent of "prior to or subsequent
thereto," on the other. It argues that the Sandiganbayan reduced the phrase "prior to or subsequent thereto" into a
useless appendage, providing Estrada with a convenient and totally unwarranted escape route.
The People further argues that the allegation of time is the least exacting in satisfying the constitutional requirement
that the accused has to be informed of the accusation against him. Section 6 of Rule 110 of the Revised Rules of
Court provides that an allegation of the approximate date of the commission of the offense will suffice, while Section
11 of the same Rule provides that it is not necessary to state in the complaint or information the precise date the
offense was committed except when it is a material ingredient of the crime. This liberality allegedly shaped the time-
tested rule that when the "time" given in the complaint is not of the essence of the offense, the time of the commission
of the offense does not need to be proven as alleged, and that the complaint will be sustained if the proof shows that
the offense was committed at any time within the period of the statute of limitations and before the commencement of
the action (citing People v. Bugayong [299 SCRA 528, 537] that in turn cited US v. Smith [3 Phil. 20, 22]). Since
allegations of date of the commission of an offense are liberally interpreted, the People posits that the Sandiganbayan
gravely abused its discretion in disregarding the additional clause "prior to or subsequent thereto"; under the liberality
principle, the allegations of the acts constitutive of the offense finally determine the sufficiency of the allegations of
time. The People thus claims that no surprise could have taken place that would prevent Estrada from properly
defending himself; the information fully notified him that he was being accused of using the alias Jose Velarde in more
than just one instance.
We see no merit in these arguments.
At its core, the issue is constitutional in nature – the right of Estrada to be informed of the nature and cause of the
accusation against him. Under the provisions of the Rules of Court implementing this constitutional right, a complaint
or information is sufficient if it states the name of the accused; the designation of the offense given by the statute; the
acts or omissions complained of as constituting the offense in the name of the offended party; the approximate date of
the commission of the offense; and the place where the offense was committed. 29 As to the cause of accusation, the
acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be
stated in ordinary and concise language and not necessarily in the language used in the statute, but in terms sufficient
to enable a person of common understanding to know the offense charged and the qualifying and aggravating
circumstances, and for the court to pronounce judgment. 30 The date of the commission of the offense need not be
precisely stated in the complaint or information except when the precise date is a material ingredient of the offense.
The offense may be alleged to have been committed on a date as near as possible to the actual date of its
commission.31
The information must at all times embody the essential elements of the crime charged by setting forth the facts and
circumstances that bear on the culpability and liability of the accused so that he can properly prepare for and
undertake his defense.32 In short, the allegations in the complaint or information, as written, must fully inform or
acquaint the accused – the primary reader of and the party directly affected by the complaint or information – of the
charge/s laid.
The heretofore cited Information states that "… on or about 04 February 2000, or sometime prior or subsequent
thereto, in the City of Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused
[did] … willfully, unlawfully and criminally REPRESENT HIMSELF AS ‘JOSE VELARDE’ IN SEVERAL
TRANSACTIONS AND use and employ the SAID alias "Jose Velarde" which IS neither his registered name at birth
nor his baptismal name, in signing documents with Equitable PCI Bank and/or other corporate entities."
We fully agree with the disputed Sandiganbayan’s reading of the Information, as this was how the accused might have
similarly read and understood the allegations in the Information and, on this basis, prepared his defense. Broken down
into its component parts, the allegation of time in the Information plainly states that (1) ON February 4, 2000; (2) OR
before February 4, 2000; (3) OR sometime prior or subsequent to February 4, 2000, in the City of Manila, Estrada
represented himself as "Jose Velarde" in several transactions in signing documents with Equitable PCI Bank and/or
other corporate entities.
Under this analysis, the several transactions involving the signing of documents with Equitable PCI Bank and/or other
corporate entities all had their reference to February 4, 2000; they were all made on or about or prior or subsequent to
that date, thus plainly implying that all these transactions took place only on February 4, 2000 or on another single
date sometime before or after February 4, 2000. To be sure, the Information could have simply said "on or about
February 4, 2000" to capture all the alternative approximate dates, so that the phrase "sometime prior or subsequent
thereto" would effectively be a surplusage that has no meaning separately from the "on or about" already expressed.
This consequent uselessness of the "prior or subsequent thereto" phrase cannot be denied, but it is a direct and
necessary consequence of the use of the "OR" between the two phrases and the "THERETO" that referred back to
February 4, 2000 in the second phrase. Of course, the reading would have been very different (and would have been
clearly in accord with the People’s present interpretation) had the Information simply used "AND" instead of "OR" to
separate the phrases; the intent to refer to various transactions occurring on various dates and occasions all
proximate to February 4, 2000 could not be disputed. Unfortunately for the People, the imprecision in the use of "OR"
is the reality the case has to live with. To act contrary to this reality would violate Estrada’s right to be informed of the
nature and cause of accusation against him; the multiple transactions on several separate days that the People claims
would result in surprise and denial of an opportunity to prepare for Estrada, who has a right to rely on the single day
mentioned in the Information.
Separately from the constitutional dimension of the allegation of time in the Information, another issue that the
allegation of time and our above conclusion raise relates to what act or acts, constituting a violation of the offense
charged, were actually alleged in the Information.1avvphi1
The conclusion we arrived at necessarily impacts on the People’s case, as it deals a fatal blow on the People’s claim
that Estrada habitually used the Jose Velarde alias. For, to our mind, the repeated use of an alias within a single day
cannot be deemed "habitual," as it does not amount to a customary practice or use. This reason alone dictates the
dismissal of the petition under CA No. 142 and the terms of Ursua.
The issues of publicity, numbered accounts, and
the application of CA No. 142, R.A. No. 1405,
and R.A. No. 9160.
We shall jointly discuss these interrelated issues.
The People claims that even on the assumption that Ocampo and Curato are bank officers sworn to secrecy under the
law, the presence of two other persons who are not bank officers – Aprodicio Laquian and Fernando Chua – when
Estrada’s signed the bank documents as "Jose Velarde" amounted to a "public" use of an alias that violates CA No.
142.
On the issue of numbered accounts, the People argues that to premise the validity of Estrada’s prosecution for
violation of CA No. 142 on a mere banking practice is gravely erroneous, improper, and constitutes grave abuse of
discretion; no banking law provision allowing the use of aliases in the opening of bank accounts existed; at most, it
was allowed by mere convention or industry practice, but not by a statute enacted by the legislature. Additionally, that
Estrada’s prosecution was supposedly based on BSP Circular No. 302 dated October 11, 2001 is wrong and
misleading, as Estrada stands charged with violation of CA No. 142, penalized since 1936, and not with a violation of
a mere BSP Circular. That the use of alias in bank transactions prior to BSP Circular No. 302 is allowed is
inconsequential because as early as CA No. 142, the use of an alias (except for certain purposes which do not include
banking) was already prohibited. Nothing in CA No. 142 exempted the use of aliases in banking transactions, since
the law did not distinguish or limit its application; it was therefore grave error for the Sandiganbayan to have done so.
Lastly on this point, bank regulations being mere issuances cannot amend, modify or prevail over the effective,
subsisting and enforceable provision of CA No. 142.
On the issue of the applicability of R.A. No. 1405 and its relationship with CA No. 142, that since nothing in CA No.
142 excuses the use of an alias, the Sandiganbayan gravely abused its discretion when it ruled that R.A. No. 1405 is
an exception to CA No. 142’s coverage. Harmonization of laws, the People posits, is allowed only if the laws intended
to be harmonized refer to the same subject matter, or are at least related with one another. The three laws which the
Sandiganbayan tried to harmonize are not remotely related to one another; they each deal with a different subject
matter, prohibits a different act, governs a different conduct, and covers a different class of persons, 33 and there was
no need to force their application to one another. Harmonization of laws, the People adds, presupposes the existence
of conflict or incongruence between or among the provisions of various laws, a situation not obtaining in the present
case.
The People posits, too, that R.A. No. 1405 does not apply to trust transactions, such as Trust Account No. C-163, as it
applies only to traditional deposits (simple loans). A trust account, according to the People, may not be considered a
deposit because it does not create the juridical relation of creditor and debtor; trust and deposit operations are treated
separately and are different in legal contemplation; trust operation is separate and distinct from banking and requires a
grant of separate authority, and trust funds are not covered by deposit insurance under the Philippine Deposit
Insurance Corporation law (R.A. No. 3591, as amended).
The People further argues that the Sandiganbayan’s conclusion that the transaction or communication was privileged
in nature was erroneous – a congruent interpretation of CA No. 142 and R.A. No. 1405 shows that a person who signs
in a public or private transaction a name or alias, other than his original name or the alias he is authorized to use, shall
be held liable for violation of CA No. 142, while the bank employees are bound by the confidentiality of bank
transactions except in the circumstances enumerated in R.A. No. 1405. At most, the People argues, the prohibition in
R.A. No. 1405 covers bank employees and officers only, and not Estrada; the law does not prohibit Estrada from
disclosing and making public his use of an alias to other people, including Ocampo and Curato, as he did when he
made a public exhibit and use of the alias before Messrs. Lacquian and Chua.
Finally, the People argues that the Sandiganbayan ruling that the use of an alias before bank officers does not violate
CA No. 142 effectively encourages the commission of wrongdoing and the concealment of ill-gotten wealth under
pseudonyms; it sustains an anomalous and prejudicial policy that uses the law to silence bank officials and employees
from reporting the commission of crimes. The People contends that the law – R.A. No. 1405 – was not intended by the
Legislature to be used as a subterfuge or camouflage for the commission of crimes and cannot be so interpreted; the
law can only be interpreted, understood and applied so that right and justice would prevail.
We see no merit in these arguments.
We agree, albeit for a different reason, with the Sandiganbayan position that the rule in the law of libel – that mere
communication to a third person is publicity – does not apply to violations of CA No. 142. Our close reading of Ursua –
particularly, the requirement that there be intention by the user to be culpable and the historical reasons we cited
above – tells us that the required publicity in the use of alias is more than mere communication to a third person; the
use of the alias, to be considered public, must be made openly, or in an open manner or place, or to cause it to
become generally known. In order to be held liable for a violation of CA No. 142, the user of the alias must have held
himself out as a person who shall publicly be known under that other name. In other words, the intent to publicly use
the alias must be manifest.
To our mind, the presence of Lacquian and Chua when Estrada signed as Jose Velarde and opened Trust Account
No. C-163 does not necessarily indicate his intention to be publicly known henceforth as Jose Velarde. In relation to
Estrada, Lacquian and Chua were not part of the public who had no access to Estrada’s privacy and to the confidential
matters that transpired in Malacañan where he sat as President; Lacquian was the Chief of Staff with whom he shared
matters of the highest and strictest confidence, while Chua was a lawyer-friend bound by his oath of office and ties of
friendship to keep and maintain the privacy and secrecy of his affairs. Thus, Estrada could not be said to have
intended his signing as Jose Velarde to be for public consumption by the fact alone that Lacquian and Chua were also
inside the room at that time. The same holds true for Estrada’s alleged representations with Ortaliza and Dichavez,
assuming the evidence for these representations to be admissible. All of Estrada’s representations to these people
were made in privacy and in secrecy, with no iota of intention of publicity.
The nature, too, of the transaction on which the indictment rests, affords Estrada a reasonable expectation of privacy,
as the alleged criminal act related to the opening of a trust account – a transaction that R.A. No. 1405 considers
absolutely confidential in nature.34 We previously rejected, in Ejercito v. Sandiganbayan, 35 the People’s nitpicking
argument on the alleged dichotomy between bank deposits and trust transactions, when we said:
The contention that trust accounts are not covered by the term "deposits," as used in R.A. 1405, by the mere fact that
they do not entail a creditor-debtor relationship between the trustor and the bank, does not lie. An examination of the
law shows that the term "deposits" used therein is to be understood broadly and not limited only to accounts which
give rise to a creditor-debtor relationship between the depositor and the bank.
The policy behind the law is laid down in Section 1:
SECTION 1. It is hereby declared to be the policy of the Government to give encouragement to the people to deposit
their money in banking institutions and to discourage private hoarding so that the same may be properly utilized
by banks in authorized loans to assist in the economic development of the country. (Underscoring supplied)
If the money deposited under an account may be used by bank for authorized loans to third persons, then such
account, regardless of whether it creates a creditor-debtor relationship between the depositor and the bank, falls
under the category of accounts which the law precisely seeks to protect for the purpose of boosting the economic
development of the country.
Trust Account No. 858 is, without doubt, one such account. The Trust Agreement between petitioner and Urban Bank
provides that the trust account covers "deposit, placement or investment of funds" by Urban Bank for and in behalf of
petitioner. The money deposited under Trust Account No. 858, was, therefore, intended not merely to remain with the
bank but to be invested by it elsewhere. To hold that this type of account is not protected by R.A. 1405 would
encourage private hoarding of funds that could otherwise be invested by bank in other ventures, contrary to the policy
behind the law.
Section 2 of the same law in fact even more clearly shows that the term "deposits" was intended to be understood
broadly:
SECTION 2. All deposits of whatever nature with bank or banking institutions in the Philippines including investments
in bonds issued by the Government of the Philippines, its political subdivisions and its instrumentalities, are hereby
considered as of an absolutely confidential nature and may not be examined, inquired or looked into by any person,
government official, bureau or office, except upon written permission of the depositor, or in cases of impeachment, or
upon order of a competent court in cases of bribery or dereliction of duty of public officials, or in cases where the
money deposited or invested is the subject matter of the litigation. (Emphasis and underscoring supplied)1avvphi1
The phrase "of whatever nature" proscribes any restrictive interpretation of "deposits." Moreover, it is clear from the
immediately quoted provision that, generally, the law applies not only to money which is deposited but also to those
which are invested. This further shows that the law was not intended to apply only to "deposits" in the strict sense of
the word.lawphil.net Otherwise, there would have been no need to add the phrase "or invested.
Clearly, therefore, R.A. 1405 is broad enough to cover Trust Account No. 858. 36
We have consistently ruled that bank deposits under R.A. No. 1405 (the Secrecy of Bank Deposits Law) are statutorily
protected or recognized zones of privacy.37 Given the private nature of Estrada’s act of signing the documents as
"Jose Velarde" related to the opening of the trust account, the People cannot claim that there was already a public use
of alias when Ocampo and Curato witnessed the signing. We need not even consider here the impact of the
obligations imposed by R.A. No.1405 on the bank officers; what is essentially significant is the privacy situation that is
necessarily implied in these kinds of transactions. This statutorily guaranteed privacy and secrecy effectively negate a
conclusion that the transaction was done publicly or with the intent to use the alias publicly.
The enactment of R.A. No.9160, on the other hand, is a significant development only because it clearly manifests that
prior to its enactment, numbered accounts or anonymous accounts were permitted banking transactions, whether they
be allowed by law or by a mere banking regulation. To be sure, an indictment against Estrada using this relatively
recent law cannot be maintained without violating the constitutional prohibition on the enactment and use of ex post
facto laws.38
We hasten to add that this holistic application and interpretation of these various laws is not an attempt to harmonize
these laws. A finding of commission of the offense punished under CA No. 142 must necessarily rest on the evidence
of the requisites for culpability, as amplified in Ursua. The application of R.A. No. 1405 is significant only because
Estrada’s use of the alias was pursuant to a transaction that the law considers private or, at the very least, where the
law guarantees a reasonable expectation of privacy to the parties to the transactions; it is at this point that R.A. No.
1405 tangentially interfaces with an indictment under CA 142. In this light, there is no actual frontal clash between CA
No. 142 and R.A. No. 1405 that requires harmonization. Each operates within its own sphere, but must necessarily be
read together when these spheres interface with one another. Finally, R.A. No. 9160, as a law of recent vintage in
relation to the indictment against Estrada, cannot be a source or an influencing factor in his indictment.
In finding the absence of the requisite publicity, we simply looked at the totality of the circumstances obtaining in
Estrada’s use of the alias "Jose Velarde" vis-à-vis the Ursua requisites. We do not decide here whether Estrada’s use
of an alias when he occupied the highest executive position in the land was valid and legal; we simply determined, as
the Sandiganbayan did, whether he may be made liable for the offense charged based on the evidence the People
presented. As with any other accused, his guilt must be based on the evidence and proof beyond reasonable doubt
that a finding of criminal liability requires. If the People fails to discharge this burden, as they did fail in this case, the
rule of law requires that we so declare. We do so now in this review and accordingly find no reversible error of law in
the assailed Sandiganbayan ruling.
WHEREFORE, premises considered, we DENY the petition for lack of merit.
SO ORDERED.
PEOPLE OF THE PHILIPPINES vs. KUSAIN AMIN y AMPUAN, a.k.a. "Cocoy,"
G.R. No. 215942 January 18, 2017
SERENO, CJ.:
This is an appeal assailing the Decision1 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 01179, which affirmed
the Decision2 of the Regional Trial Court (RTC), Branch 40, Cagayan de Oro City, in Criminal Case No. 2004-010. The
RTC found accused-appellant guilty beyond reasonable doubt of the crime of illegal sale of prohibited drugs under
Section 5, paragraph 1, Article II of Republic Act (R.A.) No. 9165.
Accused-appellant was charged under the following Information:
That on January 2, 2004, at 5:40 p.m. more or less, at Landless, Colrai, Macabalan, Cagayan de Oro City, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused without authority of law, did then and
there wilfully and feloniously have in his possession custody and control one (1) small heated-sealed transparent
plastic sachet of white crystalline substance locally known as shabu with approx. weight of 0.09 gram valued to more
or less P100 and sold it to a poseur-buyer of PNP-CDO for a consideration of P100.00 marked money one (1) pc one
hundred pesos bill with serial number FA246643, well knowing it to be a dangerous drug. Contrary to law. 3
Upon arraignment, accused-appellant, assisted by counsel, pleaded not guilty to the charge. 4 Hence, trial ensued.
On 14 June 2013, the RTC rendered a Decision, 5 the dispositive portion of which is herein quoted:
WHEREFORE, the foregoing considered, the prosecution having established all the elements of the crime of illegal
sale of a dangerous drug, the Court hereby finds the accused, Kusain Amin y Ampuan GUILTY beyond reasonable
doubt of the crime of Violation of Sec. 5, par. 1, Article II of R.A. 9165, and hereby sentences him to suffer the penalty
of LIFE IMPRISONMENT and to pay a fine of ₱500,000.00. The sachet of shabu described in the Information is
ordered confiscated in favor of the Government to be disposed of in accordance with law and regulations. No
pronouncement as to costs.
SO ORDERED.6
In so ruling, the RTC gave credence to the testimonies of the prosecution witnesses: Police Inspector (P/Insp.) Penel
Ramas; and Senior Police Officers (SPOs)2 Ricky Bagas, Jameson Alvior, Jr., and Benjamin Dacara (Ret.). 7The trial
court held that the prosecution had successfully proved the existence of all the essential elements of the crime,
accused-appellant having been "positively identified by the police officers who conducted the buy-bust operation as
the seller of the shabu presented in the case."8 Likewise, the prosecution established that the "sale actually occurred
and that one sachet of shahu was sold for the price of ₱100.00." 9 P/Insp. Ramas testified that he was about 10 to 15
meters away when the confidential informant/poseur-buyer handed the marked money to accused-appellant in
exchange for shahu. 10 After relying on the signal given by the poseur-buyer (i.e. removing his eyeglasses), they
proceeded to frisk accused-appellant and arrest him immediately. They were able to recover the marked money in the
latter’s possession.11
Moreover, the RTC found that the identity of the dangerous drug was sufficiently proven because the prosecution was
able to establish the chain of custody, from the time it was sold by accused-appellant to when it was presented in
court.12 SPO2 Dacara testified that he had personally received the sachet of shabu from their poseur-buyer at the
place of arrest and brought it to their office later. After making the appropriate markings (the letter "A" and his initials)
on the sachet, he turned it over to SPO2 Bagas for delivery to the Philippine National Police (PNP) Crime
Laboratory. 13 SPO2 Alvior then identified the sachet as the same item that he had received on 3 January 2004 from
SPO3 Sagas at the PNP Crime Laboratory Office, and that he later turned over to the examining forensic chemist,
Police Senior Inspector (P/SI) April Garcia Carbajal. 14
In light of the positive testimonies of the prosecution witnesses, the trial court gave scant consideration to the
uncorroborated self-serving allegations of accused-appellant that he had been framed. He was sentenced to suffer the
penalty of life imprisonment and to pay a fine of five hundred thousand pesos (₱500,000) for the crime of illegal sale of
prohibited drugs. 15
Upon intermediate appellate review, the CA rendered a Decision on 16 October 2014, the dispositive portion of which
reads:
WHEREFORE, the appeal is DENIED. The Judgment dated June 14, 2013 of the Regional Trial Court of Misamis
Oriental, 10th Judicial Region, Branch 40 in Criminal Case No. 2004-010 is hereby AFFIRMED in toto.
SO ORDERED. 16
In convicting appellant of the crimes charged, the CA disregarded his position that there was no valid buy-bust
operation, because the arresting team had not coordinated the matter with the Philippine Drug Enforcement Agency
(PDEA). 17 The appellate court maintained that neither R.A. 9165 nor its Implementing Rules and Regulations (IRR)
required PDEA's participation in any buy-bust operation. After all, a buy-bust is "just a form of an injlagrante arrest
sanctioned by Section 5, Rule 113 of the Rules of Court [sic], which police authorities may rightfully resort to in
apprehending violators x x x. A buy-bust operation is not invalidated by mere non-coordination with the PDEA." 18
On accused-appellant's contention that the prosecution's failure to present the poseur-buyer weakened the arresting
team's testimonies, the CA held that the non-presentation of the poseur-buyer is fatal only if there is no other
eyewitness to the illicit transaction, as held in People v. Berdadero. 19 In any case, the testimonies of SPO2 Dacara
and P/Insp. Ramas, who were both within clear seeing distance, "presented a complete picture, providing every detail
of the buy-bust operation."20
Finally, as regards the failure of the police officers to immediately mark the alleged shabu at the crime scene (but only
at the police station), the CA ruled that "failure to strictly comply with Section 21 (1), Article 11 of RA No. 9165 does not
necessarily render an accused's arrest illegal or the items seized or confiscated from him inadmissible." 21 It further
emphasized that "[w]hat is of utmost importance is the preservation of the integrity and the evidentiary value of the
seized items, as these would be utilized in the determination of the guilt or innocence of the accused." 22
We now resolve the appeal.
ISSUE: From the foregoing, the sole issue before us is whether or not the RTC and the CA erred in finding the
testimonial evidence of the prosecution witnesses sufficient to warrant appellant's conviction for the crimes charged.
THE COURT'S RULING: We reverse the appellate court.
While prior coordination with the PDEA is not necessary to make a buy-bust operation valid, 23 we are constrained to
reverse the findings of the CA because the non-presentation of the poseur-buyer is fatal to the cause of the
prosecution. In People v. Andaya, 24 the importance of presenting the poseur-buyer's testimony before the trial court
was underscored by the Court in this wise:
The justification that underlies the legitimacy of the buy-bust operation is that the suspect is arrested in flagranti
delicto, that is, the suspect has just committed, or is in the act of committing, or is attempting to commit the offense in
the presence of the arresting police officer or private person. The arresting police officer or private person is favored in
such instance with the presumption of regularity in the performance of official duty.
Proof of the transaction must be credible and complete. In every criminal prosecution, it is the State, and no other, that
bears the burden of proving the illegal sale of the dangerous drug beyond reasonable doubt. This responsibility
imposed on the State accords with the presumption of innocence in favor of the accused, who has no duty to prove his
innocence until and unless the presumption of innocence in his favor has been overcome by sufficient and competent
evidence.25
In the same case, we emphasized that "[t]here would have been no issue against [the buy-bust operation], except that
none of the members of the buy-bust team had directly witnessed the transaction, if any, between Andaya and the
poseur buyer due to their being positioned at a distance from the poseur buyer and Andaya at the moment of the
supposed transaction."26 It was even noted in that case that the "members of the buy-bust team arrested Andaya on
the basis of the pre-arranged signal from the poseur-buyer." 27
While there is a "need to hide [the poseur-buyers] identit[ies] and preserve their invaluable service to the police," 28this
consideration cannot be applied to this case, because, as in Andaya, the "poseur-buyer and the confidential informant
were one and the same. Without the poseur buyer's testimony, the State did not credibly incriminate [the accused]." 29
The testimonies of prosecution witnesses SPO2 Bagas, SPO2 Alvior, Jr., SPO2 Dacara, and P/Insp. Ramas (who was
10 meters away) cannot be considered as eyewitness accounts of the illegal sale. There was no indication that they
directly saw an illegal drug being sold to the poseur-buyer. In People v. Guzon, 30 we held that "the police officer, who
admitted that he was seven (7) to eight (8) meters away from where the actual transaction took place, could not be
deemed an eyewitness to the crime." 31
At this juncture, We reiterate our point in Andaya:
Secondly, the reliance on the supposed signal to establish the consummation of the transaction between the poseur
buyer and Andaya was unwarranted because the unmitigatedly hearsay character of the signal rendered it entirely
bereft of trustworthiness. The arresting members of the buy-bust team interpreted the signal from the anonymous
poseur buyer as the sign of the consummation of the transaction. Their interpretation, being necessarily subjective
without the testimony of the poseur buyer, unfairly threatened the libe1iy of Andaya. We should not allow that threat to
perpetuate itself. And, lastly, the reliance on the signal would deprive Andaya the right to confront and test the
credibility of the poseur buyer who supposedly gave it. 32
This interpretation is premised on the legal reasoning that "when the inculpatory facts and circumstances are capable
of two (2) or more explanations, one of which is consistent with the innocence of the accused and the other consistent
with his guilt, then the evidence does not fulfill the test of moral ce1iainty and is not sufficient to support a
conviction."33 In light of the pronouncements above, We deem it unnecessary to discuss other issues raised by both
parties.
WHEREFORE, the Court REVERSES and SETS ASIDE the Court of Appeals Decision dated 16 October 2014 in CA-
GR. CR-I-LC. No. 01179 affirming the Decision dated 14 June 2013 issued by the Regional Trial Court, Branch 40,
Cagayan de Oro City, in Criminal Case No. 2004-010; and ACQUITS accused-appellant KUSAIN
AMIN y AMPUAN of the crime charged in Criminal Case No. 2004-010 on the ground of reasonable doubt. The
Director of the Bureau of Corrections is hereby ORDERED to immediately release accused-appellant KUSAIN
AMIN y AMPUAN from custody, unless he is being detained for some other lawful cause.
SO ORDERED.
PEOPLE OF THE PHILIPPINES vs. PABLITO ANDAYA y REANO
G.R. No. 183700 October 13, 2014
BERSAMIN, J.:
The non-presentation of the confidential informant as a witness does not ordinarily weaken the State's case against
the accused. However, if the arresting lawmen arrested the accused based on the pre-arranged signal from the
confidential informant who acted as the poseur buyer, his nonpresentation must be credibly explained and the
transaction established by other ways in order to satisfy the quantum of proof beyond reasonable doubt because the
arresting lawmen did not themselves participate in the buy-bust transaction with the accused.
Antecedents
On February 7, 2003, an information for violation of Section 5 of Republic Act No. 9165 1 (RA 9165) was filed charging
Pablito Andaya y Reano (Andaya). The accusatory portion of the information reads:
That on or about December 16, 2002 at around 9:50 o'clock in the evening at Brgy. San Jose Sico, Batangas City,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law,
did then and there, willfully, unlawfully and feloniously, sell, dispense or deliver, more or less 0.09 gram(s) of
Methamphetamine Hydrochloride (shabu), a dangerous drug, which is a clear violation of the above-cited law.
CONTRARY TO LAW.2
Upon arraignment,3 Andaya pleaded not guilty to the charge. Thereafter, trial on the merits ensued.
The CA summed up the versions of the parties, as follows:4
Five (5) witnesses were presented by the prosecution, namely: SPO4 Delfin Alea, SPO3 Nelio Lopez, SPO2 Danilo
Mercado, SPO4 Protasio Marasigan and Jupri Delantar.
SPO2 Delfin Alea testified that at about 8:00 o'clock in the evening of December 16, 2002, their asset who was
conducting surveillance of Pablito Andaya in Barangay San Jose Sico, Batangas City, arrived at their station. Said
asset reported that he had arranged to buy shabu from Pablito. A team composed of SPO1 Aguila, SPO1 Cabungcal,
Eric de Chavez, PO1 Lindberg Yap, Edwalberto Villar and asset Bagsit was constituted to conduct a buy-bust. Two (2)
pieces of ₱100.00 bills both duly marked "X" were recorded in the police blotter. Alea gave the marked bills to the
asset. Upon reaching the designated place, the team members alighted from their vehicles and occupied different
positions where they could see and observe the asset. The asset knocked on the door of Pablito's house. Pablito
came out. Pablito and the asset talked briefly. The asset gave Pablito the marked money. The asset received
something from appellant. The pre-arranged signal signifying consummation of the transaction was given. The team
members approached Pablito and the asset, introduced themselves as police officers and arrested accused. He was
brought to the police station. The arrival of the team was recorded in the police blotter. The merchandise handed by
accused to the asset was sent to the Regional Crime Laboratory in Camp Vicente Lim, Canlubang, Laguna. The
specimen was positive for methampethamine Hydrochloride (shabu), a dangerous drug.
SPO2 Lopez received the person of the accused, the marked money and the item accused handed to the asset.
Lopez prepared the request for laboratory examination. He also prepared the documents required for filing of the case
with the Public Prosecutor.
SPO2 Danilo Mercado recorded the marked bills in the police blotter before the buy-bust. Upon the team's return, the
marked money and the merchandise from accused were turned over to SPO2 Mercado. He prepared a complaint
sheet. Thereafter, he turned over accused and the evidence to the Police Investigator.
SPo4 Protacio Marasigan received a written request for laboratory examination of the subject merchandise. He
brought the request to the crime laboratory in Laguna.
Jupri Delantar, a Forensic Chemical Officer in Camp Vicente Lim, Laguna, conducted the examination. The
merchandise tested positive for shabu.
Accused-appellant denied the charge. He stated that at about 9: 15 in the evening of December 16, 2002 he was at
home watching TV with his family when police officers arrived. When he opened the door, a police officer poked his
gun at him. Somebody else held a long firearm. Pablito was handcuffed and brought outside. He refused to negotiate
and asked for a warrant. The policemen searched the house, turned over the beddings and uncovered their furniture.
No gun nor shabu was found. Pablito was brought to the police station and detained. After three (3) days he was
released. He received a subpoena from the Public Prosecutor afterwards.
His wife Crisanta, corroborated appellants' testimony. She added having told her husband about the loss of their
cellphone and the money in his wallet. She was asked to produce ₱5,000.00 which she was unable to do. She was
able to raise only ₱2,000.00.
Judgment of the RTC
On February 21, 2006, the Regional Trial Court, Branch 4, in Batangas City (R TC) rendered its judgment convicting
Andaya as charged, and meted him the penalty of life imprisonment, 5 viz:
In the case at bar, the buy-bust operation conducted on the night of December 16, 2002 is supported by the police
blotter wherein not only was the depaiiure and arrival of the operatives have been duly recorded but also the two (2)
pieces of marked one hundred peso bills. The arrest of the accused was made after the police asset had given the
pre-arranged signal outside his house. The marked money was recovered from the very hand of the accused while the
deck of crystalline substances given to the asset upon the latter's handing over to the accused the marked money has
been turned over to the police by the asset. The crystalline substance when examined at the police crime laboratory
was found to contain methamphetamine hydrochloride a dangerous and prohibited drug and weighed 0.09 gram.
These foregoing facts have been clearly testified to by the Prosecution witnesses who are members of the Philippine
Integrated National Police Force stationed at Batangas City. No ill-motive has been imputed to any of these police
officers prior to and at the time the herein accused was arrested on the night of December 16, 2002.
The accused and his wife as a defense denied the sale of shabu that fateful night. There were allegations in their
testimonies that the police demanded money from them. The wife of the accused even testified that she gave P
1,500.00 to the police officer who then eventually released said accused. And early on, she even claimed money and
a cellphone were missing after the accused was arrested in their house.
The testimonies of the accused and his wife are bereft of any corroborating evidence emanating from a disinterested
source. It is no less than self-serving devoid of any credence considering the following circumstances:
1. Scrutinizing the entirety of the testimony of the accused and his wife Crisanta Andaya, there are material
variances gleaned therefrom. The accused himself never testified that he was pushed to a chair and yet
witness Crisanta Andaya said she saw her husband pushed to a chair. Also, the accused said there were two
guns poked at him when he opened the door but his wife said only one was holding a gun while another had a
long firearm on his shoulder.
2. The testimony of the accused was that only ₱500.00 was taken by the police before his release. But the
wife said ₱1,500.00 was given to the police before the accused was released. 3. The accused and his wife
never made any complaint to the proper authorities as regards the alleged loss of money and cellphone when
the accused was arrested on December 16, 2002. Neither was there any complaint filed by them for the
alleged ₱500.00 or Pl1500.00 demanded from and given by them to the police.
4. The accused was a resident of Barangay San Jose Sico, Batangas City since the 1980's why was it that it
was at Rosario, Batangas where the accused was arrested. The Defense gave no evidence to contest the
presumption of guilt based on flight.
5. It is significant to note also that the accused never bothered to ask who was knocking at his door past 9:00
o'clock in the evening. While his family was already lying in bed to sleep he was still watching T.V. These
actuations of the accused tend to support the fact that the police asset had made a deal with the accused for
the sale of shabu and was expecting the asset to come that night.
In the light of all foregoing considerations, the Court is left with no alternative than to find the herein accused criminally
liable for the offense charged in the information.
Wherefore, accused Pablito Andaya y Reano is found GUILTY beyond reasonable doubt of violating Section 5, Article
II of Republic Act No. 9165. He is therefore sentenced to undergo life imprisonment and to pay the costs of this action.
The 0.09 gram of methamphetamine hydrochloride subject of this case is confiscated and directed to be proceeded
against pursuant to law.
The accused may be credited with his preventive imprisonment if he is entitled to any.
SO ORDERED.6
Decision of the CA
In his appeal, Andaya contended:
I.
THE TRIAL COURT GRAVELY ERRED IN NOT FINDING THE ACCUSED-APPELLANT'S SEARCH AND
ARREST AS ILLEGAL.
II.
THE TRIAL COURT GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME
CHARGED DESPITE THE FAIL URE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND
REASONABLE DOUBT.7
On February 11, 2008, the CA promulgated its assailed decision affirming the conviction, 8 viz:
WHEREFORE, in view of the foregoing, the appeal is DISMISSED. The decision of Branch IV, RTC, Fourth Judicial
Region, Batangas City, in Criminal Case No. 12771 is AFFIRMED in toto.
SO ORDERED.9
Issues
Hence, Andaya appeals, insisting that the search of his house and his person and his arrest by the police officers
violated his constitutional right against unreasonable searches and seizures; and that the Prosecution's
nonpresentation of the confidential informant was adverse to the Prosecution, indicating that his guilt was not proved
beyond reasonable doubt.
Ruling
The appeal is meritorious.
To secure the conviction of the accused who is charged with the illegal sale of dangerous drugs as defined and
punished by Section 5, Article II of Republic Act No. 9165 (Comprehensive Drugs Act of 2002), the State must
establish the concurrence of the following elements, namely: (a) that the transaction or sale took place between the
accused and the poseur buyer; and ( b) that the dangerous drugs subject of the transaction or sale is presented in
court as evidence of the corpus delicti.10
We reiterate that a buy-bust operation is a valid and legitimate form of entrapment of the drug pusher. 11 In such
operation, the poseur buyer transacts with the suspect by purchasing a quantity of the dangerous drug and paying the
price agreed upon, and in turn the drug pusher turns over or delivers the dangerous drug subject of their agreement in
exchange for the price or other consideration. Once the transaction is consummated, the drug pusher is arrested, and
can be held to account under the criminal law. The justification that underlies the legitimacy of the buy-bust operation
is that the suspect is arrested in jlagranti delicto, that is, the suspect has just committed, or is in the act of committing,
or is attempting to commit the offense in the presence of the arresting police officer or private person. 12 The arresting
police officer or private person is favored in such instance with the presumption of regularity in the performance of
official duty.
Proof of the transaction must be credible and complete. In every criminal prosecution, it is the State, and no other, that
bears the burden of proving the illegal sale of the dangerous drug beyond reasonable doubt. 13 This responsibility
imposed on the State accords with the presumption of innocence in favor of the accused, who has no duty to prove his
innocence until and unless the presumption of innocence in his favor has been overcome by sufficient and competent
evidence.14
Here, the confidential informant was not a police officer. He was designated to be the poseur buyer himself. It is
notable that the members of the buy-bust team arrested Andaya on the basis of the pre-arranged signal from the
poseur buyer. The pre-arranged signal signified to the members of the buy-bust team that the transaction had been
consummated between the poseur buyer and Andaya. However, the State did not present the confidential
informant/poseur buyer during the trial to describe how exactly the transaction between him and Andaya had taken
place. There would have been no issue against that, except that none of the members of the buy-bust team had
directly witnessed the transaction, if any, between Andaya and the poseur buyer due to their being positioned at a
distance from the poseur buyer and Andaya at the moment of the supposed transaction.
The CA did not find anything wrong or odd in the non-presentation of the poseur buyer as a witness against the
accused. In fact, it justified the non-presentation as follows:
Appellant also questioned the failure of the prosecution to present the informer. The court is aware of the
considerations why confidential informants are usually not presented by the prosecution. There is the need to hide
their identity and preserve their invaluable service to the police. (People v. Khor, 307 SCRA 295 [1999], citing People
v. Gireng, 241 SCRA 11 [1995].) Foremost is the desire to protect them from being objects or targets of revenge by the
criminals they implicate once they become known. (People vs. Ong, G.R. No. 137348, June 21, 2004.)
In People vs Lopez (214 SCRA 323), it was held that there was no need for the prosecution to present the confidential
informer as the poseur buyer himself positively identified the accused as the one who sold to him one deck of
methamphetamine hydrochloride or "shabu." The trial court then properly relied on the testimonies of the police
officers despite the decision of the prosecution not to present the informer. 15
The foregoing justification by the CA was off-tangent and does not help the State's cause any.1âwphi1 It is obvious
that the rulings cited to supp01i the need to conceal the confidential infonnants' identities related to the confidential
informants who gave information against suspected drug dealers. The presentation of the confidential informants as
witnesses for the Prosecution in those instances could be excused because there were poseur buyers who directly
incriminated the accused. In this case, however, it was different, because the poseur buyer and the confidential
informant were one and the same. Without the poseur buyer's testimony, the State did not credibly incriminate
Andaya.
Indeed, Section 5 of Republic Act No. 9165 punishes "any person, who, unless authorized by law, shall sell, trade,
administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any dangerous drug,
including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in
any of such transactions." Under the law, selling was any act "of giving away any dangerous drug and/or controlled
precursor and essential chemical whether for money or any other consideration;" 16 while delivering was any act "of
knowingly passing a dangerous drug to another, personally or otherwise, and by any means, with or without
consideration."17 Given the legal characterizations of the acts constituting the offense charged, the members of the
buy-bust team could not incriminate Andaya by simply declaring that they had seen from their positions the poseur
buyer handing something to Andaya who, in turn, gave something to the poseur buyer. If the transaction was a sale, it
was unwarranted to infer from such testimonies of the members of the buy-bust team that what the poseur buyer
handed over were the marked ₱100.00 bills and that what Andaya gave to the poseur buyer was the shabu
purchased.
Another mark of suspicion attending the evidence of guilt related to the reliance by the members of the buy-bust team
on the pre-arranged signal from the poseur buyer. To start with, the record does not show what the prearranged signal
consisted of. It is fundamental enough to expect the State to be clear and definite about its evidence of guilt,
particularly here where the conviction of Andaya would require him to spend the rest of his natural life behind bars.
Nothing less should be done here. Secondly, the reliance on the supposed signal to establish the consummation of the
transaction between the poseur buyer and Andaya was unwarranted because the unmitigatedly hearsay character of
the signal rendered it entirely bereft of trustworthiness. The arresting members of the buy-bust team interpreted the
signal from the anonymous poseur buyer as the sign of the consummation of the transaction. Their interpretation,
being necessarily subjective without the testimony of the poseur buyer, unfairly threatened the liberty of Andaya. We
should not allow that threat to perpetuate itself. And, lastly, the reliance on the signal would deprive Andaya the right to
confront and test the credibility of the poseur buyer who supposedly gave it.
We should look at the situation of Andaya with utmost caution because of what our judicial experience through the
years has told us about unscrupulous lawmen resorting to stratagems of false incrimination in order to arrest
individuals they target for ulterior reasons. In this case, the arrest did not emanate from probable cause, for the
formless signal from the anonymous poseur buyer did not establish beyond reasonable doubt the elements of illegal
sale of dangerous drugs under Section 5 of Republic Act No. 9165.1âwphi1
In affirming the RTC's conviction of the accused, the CA observed that the defense of frame-up put up by the accused
was discredited by the absence of proof of "any intent on the paii of the police authorities to falsely impute such crime
against the accused, the presumption of regularity in the performance of official duty stands." 18 Such outright rejection
by the lower courts of Andaya's defense of frame-up is not outrightly binding. For sure, the frame-up defense has been
commonly used in prosecutions based on buy-bust operations that have led to the an-est of the suspects. 19 Its use
might be seen as excessive, but the failure of the accused to impute any ill motives to falsely incriminate them should
not deter us from scrutinizing the circumstances of the cases brought to us for review. We should remind ourselves
that we cannot presume that the accused committed the crimes they have been charged with. The State must fully
establish that for us. If the imputation of ill motive to the lawmen is the only means of impeaching them, then that
would be the end of our dutiful vigilance to protect our citizenry from false arrests and wrongful incriminations. We are
aware that there have been in the past many cases of false arrests and wrongful incriminations, and that should
heighten our resolve to strengthen the ramparts of judicial scrutiny.
Nor should we shirk from our responsibility of protecting the liberties of our citizenry just because the lawmen are
shielded by the presumption of the regularity of their performance of duty. The presumed regularity is nothing but a
purely evidentiary tool intended to avoid the impossible and time-consuming task of establishing every detail of the
performance by officials and functionaries of the Government. Conversion by no means defeat the much stronger and
much firmer presumption of innocence in favor of every person whose life, property and liberty comes under the risk of
forfeiture on the strength of a false accusation of committing some crime. 20 The criminal accusation against a person
must be substantiated by proof beyond reasonable doubt. The Court should steadfastly safeguard his right to be
presumed innocent. Although his innocence could be doubted, for his reputation in his community might not be lily-
white or lustrous, he should not fear a conviction for any crime, least of all one as grave as drug pushing, unless the
evidence against him was clear, competent and beyond reasonable doubt. Otherwise, the presumption of innocence
in his favor would be rendered empty.
WHEREFORE, the Court REVERSES and SETS ASIDE the decision promulgated on February 11, 2008; ACQUITS
accused Pablito Andaya y Reano for failure to prove his guilt beyond reasonable doubt; and ORDERS his immediate
release from confinement at the National Penitentiary in Muntinlupa City.
The Court DIRECTS that the Director of the Bureau of Corrections to implement the immediate release of Pablito
Andaya y Reano, unless he is confined for any other lawful cause; and to report his compliance within ten days from
receipt.
SO ORDERED.
PEOPLE OF THE PHILIPPINES vs. GERARDO ENUMERABLE y DE VILLA
G.R. No. 207993 January 21, 2015
CARPIO, J.:
The Case
1
On appeal is the 31 January 2013 Decision of the Court of Appeals in CA-G.R. CR HC No. 04948. The Court of
Appeals affirmed the 15 February 2011 Decision2 of the Regional Trial Court, Branch 12 of Lipa City convicting
appellant Gerardo Enumerable y De Villa for violation of Section 5 of Republic Act No. 9165.
The Facts
The Information dated 27 August 2004 reads:
That on or about the 27th day of May, 2004 at about 11:30 o'clock in the morning at Petron Gasoline Station, located
at B. Morada Ave., Lipa City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused,
without authority of law, did then and there willfully, unlawfully and feloniously sell, deliver, dispose or give away to a
police officer-poseur buyer, 9.88 grams of Methamphetamine Hydrochloride locally known as "shabu", a dangerous
drug, contained in three (3) plastic sachets.
Contrary to Law.3
Appellant pleaded not guilty to the offense charged. 4 Trial ensued.
The prosecution presented two witnesses, namely: Police Officer (PO) 3 Edwalberto Villas and Police Inspector Danilo
Balmes. On the other hand, appellant waived the presentation of any defense evidence.
As found by the trial court,the facts are as follows:
From the evidence adduced by the People, the Court finds that based on the information about a dealin shabu
between the asset of PO3 Edwalberto Villas and a certain Gerry of San Pablo City, a buy-bust operation was
conducted by the elements of the Batangas City Police Station with the assistance of Police Inspector Danilo Balmes
of the CIDG Batangas Province on May 27, 2004 at 11:30 o’clock in the morning at the Petron Gasoline Station along
B. Morada Ave., Lipa City. Using two (2) pieces of marked ₱500.00 bills and boodle money to make the appearance of
about ₱24,000.00, the police asset who posed as a buyer transacted with the alias Gerry upon his arrival atthe gas
station. After the exchange of the marked money and the three (3) plastic sachets of shabu placed in a black plastic
box, alias Gerry was placed under arrest. He was later identified as Gerardo Enumerable y de Villa. The marked
money was recovered from his possession by PO3 Villas who also took custody of the specimen shabu which he
marked EMV 1 to EMV 3. The three (3) sachets of shabu were turned over to the Batangas Provincial Crime
Laboratory, pursuant to the request for laboratory examination of P/Supt. Fausto Manzanilla, Jr., Chief of Police,
Batangas City PNP on May 27, 2004 at 5:25 p.m. However, that Crime laboratory indorsed the request with the
specimens on June 4, 2004 at 2:30 p.m. to the Regional Crime Laboratory in Calamba City.
Police Inspector and Forensic Chemist Donna Villa P. Huelgas found the specimens positive for the presence of
methamphetamine hydrochloride, a dangerous drug, as shown by Chemistry Report No. D-566-04, the authenticity
and genuineness of which were admitted by accused during the pre-trial. 5
Appellant filed a Comment with Motion for Leave to File Demurrer, 6 which motion was denied by the trial court for
appellant’s failure to adduce any reason therefor.7
The trial court found appellant guilty of the offense charged. The dispositive portion of the trial court’s decision reads:
WHEREFORE, the Court finds accused GERARDO ENUMERABLE y DE VILLA guilty beyond reasonable doubt as
principal by direct participation of the crime of drug pushing as defined and penalized under Section 5, Article II of
Republic Act [No.] 9165 otherwise known as the Comprehensive Dangerous Drugs Act of 2002 and hereby impose on
him the penalty of life imprisonment and to pay a fine of ₱500,000.00. The 9.88 grams of shabu are hereby ordered
destroyed pursuant to the provisions of Section 21(4) and (7) of RA 9165.
The period of detention of the accused shall be deducted in his service of sentence.
Let a commitment order be issued for the transfer of custody of the accused from the BJMP Lipa City to the National
Penitentiary, Muntinlupa City.
SO ORDERED.8
Appellant filed a Notice of Appeal.9 The Court of Appeals affirmed the conviction of appellantfor the offense charged.
Hence, this appeal.
The Ruling of the Court of Appeals
In sustaining appellant’s conviction for the offense charged, the Court of Appeals held that the testimony ofPO3 Villas
identifying the three plastic sachets of shabu as the same onesseized from appellant rendered insignificant appellant’s
allegation that PO3 Villas did not immediately put markings on the three sachets of shabu at the place of arrest. The
Court of Appeals further ruled that the failure of the arresting officers to conduct a physical inventory and to take
photographs of the seized items is not fatal as long as the integrity and evidentiary value of the seized items are
properly preserved, as in this case.
According to the Court of Appeals, the prosecution was able to prove the unbroken chain of custody of the prohibited
drug from the time PO3 Villas confiscated the plastic sachets from appellant and marked them at the place of arrest, to
the time PO3 Villas brought the plastic sachets to the police station and turned them over to the investigator on-duty
until the time SPO1 de Castro submitted the marked plastic sachets to the Regional Crime Laboratory Office
Calabarzon for laboratory examination.
The Issue
The issue boils down to whether the prosecution established the identity and integrity of the confiscated illegal drug,
which is the corpus delicti of the offense charged against appellant.
The Ruling of the Court
We grant the appeal.
While appellant waived the presentation of evidence for his defense, he disputes the identity and integrity of the illegal
drug which is the corpus delicti of the offense charged against him. Appellant maintains that the prosecution failed to
prove the unbroken chain of custody of the illegal drug which gravely impairs its identity. Without the identity of the
corpus delicti being sufficiently established, appellantclaims that he should be acquitted.
It is settled that in prosecutions for illegal saleof dangerous drug, not only must the essential elements of the offense
be proved beyond reasonable doubt, but likewise the identity of the prohibited drug. The dangerous drug itself
constitutes the corpus delictiof the offense and the fact of its existence is vital to a judgment of conviction. 10
Necessarily, the prosecution must establish that the substance seized from the accused is the same substance offered
in court as exhibit.1âwphi1 In this regard, the prosecution must sufficiently prove the unbroken chain of custody of the
confiscated illegal drug. In People v. Watamama,11 the Court held:
In all prosecutions for the violation of the Comprehensive Dangerous Drugs Act of 2002, the existence of the
prohibited drug has to be proved. 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. No. 9165 and its implementing rules
and regulations, not perfect adherence, is what is demanded of police officers attending to drugs cases, 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 preserved. x x x. (Emphasis supplied)
In People v. Climaco,12 citing Malillin v. People,13 the Court held:
x x x [T]o establish guilt of the accused beyond reasonable doubt in cases involving dangerous drugs, it is important
that the substance illegally possessed in the first place be the same substance offered in court as exhibit. This chain of
custody requirement ensures that unnecessary doubts are removed concerning the identity of the evidence. When the
identity of the dangerous drug recovered from the accused is not the same dangerous drug presented to the forensic
chemist for review and examination, nor the same dangerous drug presented to the court, the identity of the
dangerous drug is not preserved due to the broken chain of custody. With this, an element in the criminal cases for
illegal sale and illegal possession of dangerous drugs, the corpus delicti, is not proven, and the accused must then be
acquitted based on reasonable doubt. For this reason, [the accused] must be acquitted on the ground of reasonable
doubt due to the broken chain of custody over the dangerous drug allegedly recovered from him.
In this case, there was a glaring gap in the custody of the illegal drug since the prosecution failed to sufficiently
establish who had custody of the illegal drug from the moment it was allegedly transmitted to the Batangas Provincial
Crime Laboratory on 27 May 2004 until it was allegedly delivered to the Regional Crime Laboratory on 4 June 2004.
There was no evidence presented how the confiscated sachets of shabu were stored, preserved or labeled nor who
had custody prior to their delivery to the Regional Crime Laboratory and their subsequent presentation before the trial
court. This is evident from the testimony of PO3 Villas, who stated he had no knowledge on who had custody of the
sachets of shabu from 27 May 2004 until 4 June 2004. PO3 Villas testified thus:
Q But when the accused was arrested on May 27, 2004, records will show that the specimen was submitted to the
crime laboratory on June 4, 2004 which is practically several days after. Am I right?
A It was turned over to the duty investigator.
Q Who brought the specimen to the crime laboratory?
A I don’t know from the duty investigator, sir.
Q So you are not aware who brought the specimen to the crime laboratory?
AYes, sir.
Q But between May 27 and June 4, 2004, who was in custody of the specimen?
A I turned it over to the duty investigator, sir.
Q On what date?
A On May 27 after we turned over the suspect to the investigator, sir.
Q So your statement which says that the accused was released simply because the specimen or the resultof the
examination … would not catch up with the investigation isnot correct because you have not submitted immediately
the specimen to the crime laboratory?
COURT
Q Because it was submitted seven (7) days after the apprehension?
A I was not the one who is concerned with the submission of the specimen to the crime laboratory. We turned it over to
the duty investigator and the duty investigator marked the specimen, Your Honor.
ATTY. GAJITOS
Q But you will agree that the specimen was submitted to the crime laboratory by your investigator only on June 4,
2004 or practically a week after the apprehension?
A I don’t know, sir. It is onlynow that I came to know, sir. 14 (Emphasis supplied)
The prosecution attempted to fill the gap in the chain of custody. However, such effort proved futile. On re-direct
examination, PO3 Villas, who earlier testified that he had no knowledge on who had custody of the illegal drugs prior
and during their delivery to the crime laboratories, merely restated the contents of the 3 June 2004 Memorandum from
the Chief of the Batangas Police addressed to the Regional Chief, corresponding to the questions of the prosecutor. In
other words, PO3 Villas testified on a piece of document he had no participation inthe preparation or execution
thereof. PO3 Villas testified as follows:
CROSS-EXAMINATION OF ATTY. GAJITOS
Q Do you admit there are no significant markings on this black box for possession or identification more particularly
the signature or initial of the arresting officer?
A No, sir.
ATTY. GAJITOS
No further question, Your Honor.
COURT
Re-direct.
PROSECUTOR
Q During your cross-examination, youwere asked regarding the fact as a reply to the question of the defense it was
after 7 days that the specimen was actually brought to the laboratory for examination, your answer that was correct?
A Yes, ma’am.
Q I am showing to you a document, the indorsement which came from the Office of the Chief of Police of Batangas
City dated May 27, 2004, can you please go over the same and tell the Court what is the relevance of that document
regarding the delivery of specimen to the crime laboratory?
A This is the request prepared by our investigator dated May 27 in relation to the arrest of Gerardo Enumerable
wherein the subject were three (3) plastic sachets of shabu, it was delivered to Batangas Provincial Crime Laboratory
on the same date, ma’am.
Q How did you come to know it was delivered on the same date?
A There was a stamp receipt by the Provincial Crime Laboratory office delivered by SPO1 De Castro and received by
PO3 Llarena at Batangas Provincial Crime Laboratory, ma’am.
Q You likewise identified during the direct examination chemistry report coming from Camp Vicente Lim, how would
you reconcile the fact the specimen was delivered to the Provincial Crime Laboratory and the result came from Camp
Vicente Lim?
A It was the Provincial Crime Laboratory of Batangas PPO who made the indorsements from Batangas Provincial
Police Office to the Crime Laboratory, Camp Vicente Lim, ma’am.
Q Do you have proof to show that fact?
A Yes, ma’am.
Q What is that?
A Letter request made by the Batangas Crime Laboratory to the Crime Laboratory, Camp Vicente Lim, ma’am.
Q This is the same request made by the Batangas Provincial Crime Laboratory addressed to Regional Crime
Laboratory, was there a proof to show that the specimen together with the indorsement was actually received by the
Crime Laboratory Camp Vicente Lim.
A Yes, there was a stamp of the Regional Crime Laboratory office delivered by PO3 Vargas and received by PO3
Macabasco of the Regional Crime Laboratory, ma’am.
Q What date?
A It was delivered on June 3 and the specimen was received on June 4, ma’am.
Q Why was it necessary for your officeto deliver the specimen to the Provincial Crime Laboratory, why not directly to
the Crime Laboratory of Camp Vicente Lim?
A During that time there was no chemist who examined the specimen in the Provincial Crime Laboratory so what they
did was they delivered the specimen to the Regional Crime Laboratory, ma’am.
Q My question is, why not deliver it directly to Camp Vicente Lim?
A The PNP during that time did not have any budget, ma’am.
Q How much would it needto deliver the specimen?
A It was cheap, sir. The problemwas that the Provincial Crime Laboratory did not have any chemist, they delivered the
specimen to the Regional Crime Laboratory that is why there are many accused who remained at large, ma’am.
xxxx
Q Who brought the specimen to the PNP Crime Laboratory?
A The officer on duty, Your Honor.
Q From Batangas to Camp Vicente Lim, do you know the officer?
A The person who delivered there, it is stated in the document, Your Honor.
Q Who was in custody of this specimen from Batangas PNP to the Provincial Crime Laboratory? A The officer, Your
Honor.15 (Emphasis supplied)
Clearly, PO3 Villas had no personal knowledge on (1) how the illegal drugs were delivered and who delivered the
drugs from the Batangas Provincial Crime Laboratory to the Regional Crime Laboratory; (2) who received the drugs in
the Regional Crime Laboratory; and (3) who had custody of the drugs from 27 May 2004 to 3 June 2004 until their
presentation before the trial court. The testimony of PO3 Villas merely attests to the existence of the Memorandum
from the Chief of the Batangas Provincial Crime Laboratory to the Regional Crime Laboratory.
While appellant admitted during the pre-trial the authenticity and due execution of the Chemistry Report, prepared by
Police Inspector and Forensic Chemist Donna Villa P. Huelgas, this admission merely affirms the existence of the
specimen and the request for laboratory examination and the results thereof. Appellant's admission does not relate to
the issue of chain of custody. In fact, appellant qualified his admission that the specimens were not taken or bought
from him.16 In People v. Gutierrez, the Court stated:
x x x That the defense stipulated on these matters, viz: that the specimen exists, that a request has been made by the
arresting officers for examination thereof, that a forensic chemist examined it, and that it tested positive for
methylamphetamine hydrochloride has no bearing on the question of chain of custody. These stipulations, which
merely affirm the existence of the specimen, and the request for laboratory examination and the results thereof, were
entered into during pre-trial only in order to dispense with the testimony of the forensic chemist and abbreviate the
proceedings. x x x.17
Since the failure of the prosecution to establish every link in the chain of custody of the illegal drug gravely
compromised its identity and integrity, which illegal drug is the corpus delicti of the offense charged against appellant,
his acquittal is therefore in order.
WHEREFORE, we GRANT the appeal and ACQUIT appellant Gerardo Enumerable y De Villa based on reasonable
doubt and we ORDER his immediate release from detention, unless he is detained for any other lawful cause.
SO ORDERED.
PEOPLE OF THE PHILIPPINES vs. FERNANDO RANCHE HAVANA a.k.a. FERNAMDO RANCHE ABANA
G.R. No. 198450 January 11, 2016
DEL CASTILLO, J.:
"Statutory rules on preserving the chain of custody of confiscated prohibited drugs and related items are designed to
ensure the integrity and reliability of the evidence to be presented against the accused. Their observance is the key to
the successful prosecution of illegal possession or illegal sale of dangerous drugs." 1
At issue in this case is whether appellant Fernando Ranche Havana a.k.a. Fernando Ranche Abana did in fact sell or
deliver to an alleged poseur-buyer some 0.03 gram of the banned substance Methylamphetamine Hydrochloride,
locally known as "shabu" on the late afternoon of November 4, 2005. The appellant insists that he never did. The
prosecution asserts the contrary.
On appeal is the May 31, 2010 Decision2 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 00688, affirming the
February 28, 2007 Decision3 of the Regional Trial Court (RTC) of Cebu City, Branch 58 finding Fernando Havana y
Ranche a.k.a Fernando Abruia y Ranche (appellant) guilty of violating Section 5, Article II of Republic Act No. 9165
(RA 9165) otherwise known as the Comprehensive Dangerous Drugs Act of 2002 and sentencing him to suffer the
penalty of life imprisonment and to pay a fine of P500,000.00.
Factual Antecedents
4
In an Information dated November 18, 2005, the appellant was charged with illegal sale of dangerous drugs
committed as follows:
That on or about the 4th day of November, 2005, at about 6:30 p.m., in the City of Cebu, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, with deliberate intent and without authority of law, did then and
there sell, deliver or give away to a poseur[-]buyer the following:
One (1) heat-sealed transparent plastic packet containing 0.03 gram of white crystalline substance
containing Methylamphetamine Hydrochloride, locally known as "SHABU", a dangerous drug.
CONTRARY TO LAW.5
Appellant put in a negative plea. Trial then followed.
The prosecution’s case is essentially erected upon the testimonies of PO2 Miguel R. Enriquez 6 (PO2 Enriquez), SPO1
Rogelio J. Cañete, Jr. (SPO1 Cañete), and Police Chief Inspector Mutchit G. Salinas (PCI Salinas), all members of the
Philippine National Police (PNP), Police Station 10, Punta Princesa, Cebu City and documentary exhibits pertaining to
the buy-bust operation. The combined testimonies and the documentary exhibits tended to establish these facts:
On the afternoon of November 4, 2005, a civilian informant, one "Droga", went to Police Station 10, Punta Princesa,
Cebu City and reported to the duty officer SPO1 Vicente R. Espenido, Jr. (SPO1 Espenido) that the appellant was
actively engaged in the illegal drug trade at Sitio Mangga, Punta Princesa, Cebu City. SPO1 Espenido immediately
assembled a buy-bust team, with him as the team leader, the civilian asset and with PO2 Enriquez, SPO1 Cañete,
and SPO1 Jasper C. Nuñez (PO2 Nuñez) as back-up. The police team designated the unnamed "civilian informant" as
poseur-buyer and provided him with a P100.00 marked money bill, with its serial number (SN003332) noted in the
police blotter,7 to be used for the purpose of buying shabu from appellant. The buy-bust operation was allegedly
coordinated with the Office of the Philippine Drug Enforcement Agency (PDEA). 8 When the police team reached the
target area, the "civilian informant" went to the house of appellant and called the latter. Hidden from view, some 15
meters away from the house, the back-up operatives, PO2 Enriquez and SPO1 Cañete, saw the civilian informant
talking with the appellant. Not long after, they saw the "civilian informant" handling over the marked P100.00 bill to the
appellant, who in exchange gave to the former a plastic pack containing 0.03 gram white crystalline substance which
these two suspected as shabu. The "civilian informant" then placed a face towel on his left shoulder to signal that the
sale had been consummated. SPO1 Espenido and his two companions rushed towards the "civilian informant" and
the appellant and arrested the latter after apprising him of his constitutional rights. SPO1 Espenido recovered the
P100.00 marked money from the appellant while the plastic pack was given by the "civilian informant" to SPO1
Espenido.
The appellant was taken to the police station for investigation. The P100.00 marked money and the plastic pack
containing the suspected shabu were turned over to SPO2 Nuñez who marked the plastic pack with "FA" the initials of
herein appellant. He then prepared a letter requesting for examination 9 of the item seized from the appellant
addressed to the PNP Crime Laboratory. PCI Salinas, a forensic chemist of the PNP Crime Laboratory of Brgy. Apas,
Cebu City, testified that he conducted a laboratory examination of the recovered specimen 10 that yielded "positive
result for the presence of methylamphetamine hydrochloride, a dangerous drug." 11
The appellant denied that he was a shabu-seller; he also denied that he was arrested in a buy-bust
operation.1âwphi1 He claimed that on that evening of November 4, 2005 he was eating bread when SPO2 Nuñez
barged inside his house, handcuffed him and brought him to the police precinct. He claimed that he was mistaken for
his neighbor "Narding" the real shabu-seller. His daughter, Maria Theresa, corroborated him.
Ruling of the Regional Trial Court
The RTC found appellant guilty as charged and sentenced him to suffer the penalty of life imprisonment and to pay a
fine of P500,000.00.
From this judgment, appellant appealed to the CA.
Ruling of the Court of Appeals
On appeal, the CA upheld the RTC ruling. The appellate court held that the non-submission of the pre-operation report
to the PDEA did not at all render the buy-bust operation irregular. What it held as important is that the police officers
were able to call the PDEA prior to the operation. The CA was convinced that all the elements of the offense charged
were established by the prosecution. The CA held that the integrity and evidentiary value of the confiscated item had
been preserved, despite the fact that the police officers did not strictly adhere to the procedure outlined in Section 21
of RA 9165 which governs the so-called "buy-bust" operations. It held that the police officers regularly performed their
functions. Thus, in its Decision of May 31, 2010, the CA decreed dispositively –
WHEREFORE, premises considered, the Appeal is hereby DISMISSED. The Decision dated February 28, 2007 of the
Regional Trial Court (RTC), Branch 58, Cebu City, in Criminal Case No. CBU-75283, is AFFIRMED.
SO ORDERED.12
Aggrieved, appellant is now before us seeking the reversal of his conviction faulting the courts below for convicting
him of the crime charged. He questions in his Supplemental Brief: (1) the lack of pre-coordination with the PDEA
regarding the buy-bust operation, (2) the non-presentation in court of the unnamed "civilian informant" as poseur-
buyer, (3) the non-compliance by the police officers with the prescribed procedure under Section 21, Article II of RA
9165 and lastly, the dubious chain of custody of the subject shabu.
The Office of the Solicitor General (OSG) prays for the affirmance of the appealed Decision arguing that the essential
elements of the offense charged had been adequately established and that the appellant’s bare denial cannot prevail
over the positive and straightforward testimonies of the police operatives who are presumed to have performed their
duties regularly.
Our Ruling
The appeal is well-taken.
Prefatorily, we stress again that generally, the trial court’s findings of fact, especially when affirmed by the CA, are
entitled to great weight, and will not be disturbed on appeal. 13 Even as this Court must defer to this salutary rule, it
must likewise pay homage to a higher duty which is to dispense real, conscientious and honest-to-goodness justice by
conducting a thorough examination of the entire records of the case based on the settled principle that an appeal in a
criminal case opens the whole case for review on all questions including those not raised by the parties. 14
The appellant contends that the belated submission of the pre-operation report to the PDEA after the buy-bust
operation violates RA 9165; and that the non-presentation of the unnamed "civilian informant" who allegedly brokered
the transaction with him casts serious doubts on the factuality of the buy-bust operation. 15
There is no merit in this contention.
We held in People v. Abedin16 that coordination with the PDEA is not an indispensable requirement before police
authorities may carry out a buy-bust operation; that in fact, even the absence of coordination with the PDEA will not
invalidate a buy-bust operation.17 Neither is the presentation of the informant indispensable to the success in
prosecuting drug-related cases.18 Informers are almost always never presented in court because of the need to
preserve their invaluable service to the police. Unless their testimony is absolutely essential to the conviction of the
accused, their testimony may be dispensed with since their narrations would be merely corroborative to the
testimonies of the buy-bust team.
Adherence to the chain of custody rule not established.
In this ultimate recourse, appellant focuses his principal argument on the alleged failure of the prosecution to establish
a continuous and unbroken chain of custody of the seized illegal drug and the lack of integrity of the evidence in view
of the police officers’ non-compliance with Section 21, Article II of RA 9165.
"In a prosecution for illegal sale of dangerous drugs, the following elements must be duly 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."19 The dangerous drug itself constitutes the very corpus delicti of the offense and the fact of its existence
beyond reasonable doubt plus the fact of its delivery and/or sale are both vital and essential to a judgment of
conviction in a criminal case.20 And more than just the fact of sale, "[o]f prime importance therefore x x x is that the
identity of the dangerous drug be likewise established beyond reasonable doubt. In other words, it must be
established with unwavering exactitude that the dangerous drug presented in court as evidence against the accused is
the same as that seized from him in the first place. The chain of custody requirement performs this function in that in
ensures that unnecessary doubts concerning the identity of the evidence are removed." 21
The Dangerous Drugs Board Regulation No. 1, Series of 2002, defines chain of custody as "duly recorded authorized
movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory
equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping, to
presentation in court for destruction."
As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be
preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It
would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered
in evidence, in such a way that every person who touched the exhibit would describe how and from whom it was
received, where it was and what happened to it while in the witness’ possession, the condition in which it was received
and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the
precautions taken to ensure that there had been no change in the condition of the item and no opportunity for
someone not in the chain to have possession of the same.
While the testimony about a perfect chain is not always the standard because it is almost always impossible to obtain,
an unbroken chain of custody becomes indispensable and essential when the item of real evidence is not distinctive
and is not readily identifiable, or when its condition at the time of testing or trial is critical, or when a witness has failed
to observe its uniqueness. The same standard obtains in case the evidence is susceptible of alteration, tampering,
contamination and even substitution and exchange. In other words, the exhibit’s level of susceptibility to fungibility,
alteration or tampering –without regard to whether the same is advertent or otherwise not – dictates the level of
strictness in the application of the chain or custody rule. 22
Measured by the foregoing yardstick, we find that the prosecution utterly failed to establish convincingly the chain of
custody of the alleged seized plastic pack subject matter hereof. In fact only PO2 Enriquez and SPO1 Cañete testified
in respect to the identity of the alleged evidence. However, from their testimonies, the prosecution was not able to
account for the linkages in the chain while the plastic pack was not or no longer in their respective possession.
While both witnesses testified that after the sale and apprehension of the appellant, the poseur-buyer turned over the
subject pack of shabu to their team leader SPO1 Espenido, there is no record as to what happened after the turn-over.
SPO1 Espenido to whom the specimen was allegedly surrendered by the poseur-buyer was not presented in court to
identify the person to whom it was given thereafter and the condition thereof while it was in his possession and
control. The prosecution did not bother to offer any explanation for his non-presentation as a witness. This is a
significant gap in the chain of custody of the illegal stuff.
The prosecution’s cause is also marred by confusion and uncertainty regarding the possessor of the pack
of shabu when it was brought to the police station. By PO2 Enriquez’s account, it was SPO2 Nuñez who was in
possession of the same – an account which is at loggerheads with the claim of SPO1 Cañete that he was in custody
and possession thereof and that he personally brought the same to the police station. These police officers cannot
seem to agree on a point over which there could hardly be a disagreement. It must be observed that SPO2 Nuñez
who had supposedly taken custody of the substance following PO2 Enriquez’s account was likewise not presented in
court to testify. Worse, the prosecution did not even try to reconcile this inconsistency. Moreover, the prosecution failed
to show how, when and from whom SPO2 Nuñez or SPO1 Cañete received the evidence. There was no evidence on
how they came into possession of the pack of shabu. Again, this is a clear missing link in the chain of custody of the
specimen after it left the hands of SPO1 Espenido.
We also take note that the testimonies of the prosecution witnesses failed to identify the person to whom the specimen
was given at the police station. All that has been said is that the investigator, SPO2 Nuñez, marked the specimen. But
this statement did not necessarily mean that he was the same officer who received the same from either PO2
Enriquez or SPO1 Cañete. In fact, there is a total want of evidence tending to prove that fact. It must be recalled that
SPO2 Nuñez did not take the witness stand to identify the specific marking on the alleged specimen; neither did the
prosecution adduce conclusive proof as to the author of the handwriting affixed therein and admit the same as his own
handwriting.
True, PO2 Enriquez claimed that he personally delivered to the crime laboratory the specimen attached to the letter-
request; nonetheless, he did not categorically testify that the substance presented in court was the very same
substance delivered to the crime laboratory for analysis. In fact, going by the records neither of the two police officers
testified that the substance delivered to the crime laboratory for chemical analysis and later presented in court was the
same substance seized from the appellant.
Nor can the prosecution gain from the testimony of the forensic chemist PCI Salinas. The records show that there is
nothing positive and convincingly clear from the testimony of PCI Salinas. She did not at all categorically and
straightforwardly assert that the alleged chemical substance that was submitted for laboratory examination and
thereafter presented in court was the very same substance allegedly recovered from the appellant. If anything, the
sum and substance of her testimony is that the alleged pack of shabu submitted to her for laboratory examination
showed that it was positive for methamphetylane hydrochloride or shabu. She never testified where the substance
came from. Her testimony was limited only on the result of the examination she conducted and not on the source of
the substance.
"[W]hile the chain of custody should ideally be perfect [and unbroken], in reality it is not, ‘as it is almost always
impossible to obtain an unbroken chain.’"23 As such, what is of utmost importance "is the preservation of the integrity
and the evidentiary value of the seized items as they will be used to determine the guilt or innocence of the
accused."24 In the case at bench, this Court finds it exceedingly difficult to believe that the integrity and evidentiary
value of the drug have been properly preserved by the apprehending officers. The inexplicable failure of the police
officers to testify as to what they did with the alleged drug while in their respective possession resulted in a breach or
break in the chain of custody of the drug. In some cases, 25 the Court declared that the failure of the prosecution to
offer the testimony of key witnesses to establish a sufficiently complete chain of custody of the shabu plus the irregular
manner which plagued the handling of the evidence before the same was offered in court, whittles down the chances
of the government to obtain a successful prosecution in a drug-related case.
Here, apart from the utter failure of the prosecution to establish an unbroken chain of custody, yet another procedural
lapse casts further uncertainty about the identity and integrity of the subject shabu. We refer to the non-compliance by
the buy-bust team with the most rudimentary procedural safeguards relative to the custody and disposition of the
seized item under Section 21(1),26 Article II of RA 9165. Here, the alleged apprehending team after the alleged initial
custody and control of the drug, and after immediately seizing and confiscating the same, never ever made a physical
inventory of the same, nor did it ever photograph the same in the presence of the appellant from whom the alleged
item was confiscated. There was no physical inventory and photograph of the item allegedly seized from appellant.
Neither was there any explanation offered for such failure.
While this Court in certain cases has tempered the mandate of strict compliance with the requisite under Section 21 of
RA 9165, such liberality, as stated in the Implementing Rules and Regulations 27 can be applied only when the
evidentiary value and integrity of the illegal drug are properly preserved as we stressed in People v. Guru.28 In the
case at bar, the evidentiary value and integrity of the alleged illegal drug had been thoroughly compromised. Serious
uncertainty is generated on the identity of the item in view of the broken linkages in the chain of custody. In this light,
the presumption of regularity in the performance of official duty accorded the buy-bust team by the courts below
cannot arise.
WHEREFORE, premises considered, the Decision of the Court of Appeals in CA-G.R CR-HC No. 00688 dated May
31, 2010 is REVERSED and SET ASIDE. Appellant Fernando Ranche Havana a.k.a. Fernando Ranche Abana is
hereby ACQUITTED of the charge, his guilt not having been established beyond reasonable doubt.
The Director of the Bureau of Corrections is hereby ORDERED to immediately RELEASE the accused from custody,
unless he is held for another lawful cause.
SO ORDERED.
PEOPLE OF THE PHILIPPINES vs. SONIA BERNEL NUARIN
G.R. No. 188698 July 22, 2015
BRION, J.:
We decide the appeal filed by appellant Sonia Bemel Nuarin (appellant) from the April 28, 2009 decision 1 of the Court
of Appeals (CA) in CA-G.R. CR-H.C. No. 02886.
The appealed decision affirmed the May 25, 2007 joint decision 2 of the Regional Trial Court (RTC), Branch 80,
Quezon City, finding the appellant guilty beyond reasonable doubt of violation of Section 5, Article II of Republic Act
(R.A.) No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002.
Background Facts
The prosecution charged the appellant with violation of Sections 53 and 11, 4 respectively, of R.A. No. 9165 before the
RTC, docketed as Criminal Case Nos. Q-03-114918 and Q-03-114919. The appellant was duly arraigned; she pleaded
not guilty to the charges laid. The prosecution presented Police Officer 1 (PO1) Roberto Manalo at the trial on the
merits that followed, while the parties stipulated5 the testimony of Forensic Chemist, Police Senior Inspector (P/Sr.
Insp.) Bernardino Banac. The appellant took the witness stand for the defense.
PO1 Manalo testified that on February 2, 2003, members of the District Drug Enforcement Group of the Central Police
District, composed of himself, PO1 Filnar Mutia, PO3 Cleto Montenegro, PO3 Eduardo Datul, and PO3 Rommel
Bautista went to Barangay Old Balara, Quezon City, to conduct a buy-bust operation against the appellant. 6When they
arrived there at around 12:30 p.m., the informant introduced PO1 Manalo to the appellant. PO1 Manalo told the
appellant that he wanted to buy ₱100.00 worth of shabu. The appellant handed a sachet containing white crystalline
substances to PO1 Manalo who, in turn, gave him the marked money. Immediately after, PO1 Manalo made the
prearranged signal to his companions.7 The other members of the entrapment team rushed to the scene and
introduced themselves as policemen; PO1 Mutia searched the appellant and found two other plastic sachets inside
the appellant’s coin purse. Thereafter, the police brought the appellant and the seized items to the police station. 8
The defense presented a different picture of the events. The appellant’s testimony was aptly summarized by the CA as
follows:
On February 2, 2003, at about 12:30 in the afternoon, accused-appellant was at home with her son John Bernel and
friends Jan Ticson and Rebecca Agana. They had just finished eating lunch and accused appellant was, then, washing
the dishes when she heard a knock on the door. At the door were PO3 Cleto Montenegro, PO1 Filnar Mutia and two
others. They were looking for a certain Bogart. When accused-appellant said that she did not know where Bogart was,
the police officers entered the house and searched the premises for about an hour. When the search did not yield
anything incriminatory, the police brought accused-appellant and the other occupants of the house to Camp Karingal
In Quezon City. There, the police extorted ₱40,000.00 in exchange of accused-appellant’s release. When the money
was not produced, accused-appellant was charged by the police officers. 9
In its joint decision10 of May 25, 2007, the RTC found the appellant guilty of the illegal sale of 0.03 gram of shabu
penalized under Section 5, Article II of R.A. No. 9165. The RTC held that the prosecution was able to prove, through
testimonial and documentary evidence, that an illegal sale of drugs took place between the appellant and the poseur-
buyer, PO1 Manalo. It added that the police were presumed to have regularly performed their official duties in the
absence of any evidence to rebut this presumption. The RTC likewise found no merit in the appellant’s defenses of
denial and extortion as she failed to substantiate these. Accordingly, the RTC sentenced the appellant to suffer the
penalty of life imprisonment, and ordered her to pay a ₱500,000.00 fine. The RTC, however, acquitted the appellant of
illegal possession of dangerous drugs in Criminal Case No. Q-03-114919 for insufficiency of evidence.
On appeal, the CA affirmed the RTC decision in toto. The CA held that the prosecution successfully proved all the
elements of illegal sale of shabu under Section 5, Article II of R.A. No. 9165. It further ruled that the integrity and
evidentiary value of the confiscated shabu had been preserved. The CA also disregarded the appellant’s denial in the
light of the positive identification made by PO1 Manalo.
In her brief on appeal, the appellant contends that the trial court gravely erred in convicting her of the crime charged
despite the prosecution’s failure to establish that a buy-bust operation took place. She also maintained that the chain
of custody over the seized shabu had been broken. For the State, the office of the Solicitor General (OSG) counters
that the prosecution was able to establish that the sale of shabu between the appellant and the poseur-buyer was
consummated. It also maintained that the nonpresentation in court of the original marked money, the forensic chemist,
the informant, and the original marked money was not fatal in the prosecution for illegal drugs.
Our Ruling
After due consideration, we resolve to acquit the appellant for the prosecution’s failure to prove her guilt beyond
reasonable doubt.
A successful prosecution for the sale of illegal drugs requires more than the perfunctory presentation of evidence
establishing each element of the crime: the identities of the buyer and seller, the transaction or sale of the illegal drug,
and the existence of the corpus delicti.
In securing or sustaining a conviction under R.A. No. 9165, the intrinsic worth of these pieces of evidence, especially
the identity and integrity of the corpus delicti, must definitely be shown to have been preserved. This requirement
necessarily arises from the illegal drug’s unique characteristic that renders it indistinct, not readily identifiable, and
easily open to tampering, alteration, or substitution either by accident or otherwise.
Thus, to remove any doubt on the identity and integrity of the seized drug, evidence must definitely show that the
illegal drug presented in court is the same illegal drug actually recovered from the accused-appellant. 11 It is in this
respect that the prosecution failed.
The ‘Marking’ Requirement vis-à-vis the Chain of Custody Rule
Dangerous Drugs Board Regulation No. 1, Series of 2002, which implements R.A. No. 9165, defines chain of custody
as "the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of
dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic
laboratory to safekeeping to presentation in court for destruction."
A crucial step in proving chain of custody is the marking of the seized drugs or other related items immediately after
they are seized from the accused. "Marking" means the placing by the apprehending officer or the poseur-buyer of
his/her initials and signature on the items seized. Marking after seizure is the starting point in the custodial link; hence,
it is vital that the seized contraband be immediately marked because succeeding handlers of the specimens will use
the markings as reference. The marking of the evidence serves to separate the marked evidence from the corpus of
all other similar or related evidence from the time they are seized from the accused until they are disposed of at the
end of the criminal proceedings, thus preventing switching, "planting," or contamination of evidence. 12
In the present case, the prosecution’s lone witness, PO1 Manalo, gave conflicting statements as to who marked the
seized sachets. In his direct testimony, he claimed that it was the desk officer who marked the sachets, thus:
PROSECUTOR JOSEPHUS ASIS:
Q: After you were able to arrest the accused and while going travelling (sic) to your office[,] who was holding the drug
that you were able to buy from the accused?
PO1 MANALO:
A: I, Sir.
Q: After the recovered money by PO1 Mutia and after you arrived at the station[,] what did you do?
A: We turned it over to the desk officer and the desk officer put the initial RM.
Q: After the marking[,] what happened next?
A: The investigator prepared a request to the crime laboratory and brought the drug to the crime lab.
Q: Who brought it if you know?
A: I can no longer remember.13
In the latter part of his direct examination, however, PO1 Manalo claimed that he was the one who marked the
sachets. To directly quote from the records:
PROSECUTOR JOSEPHUS ASIS:
Q: Now you mentioned that you were able to purchase drug from the accused. If the drug will be shown to you[,]
would you be able to identify it?
PO1 MANALO:
A: I have my marking there[,] sir.
Q: Will you please go over the same and tell me what is the relation of the said sachet with the substance with the one
you were able to buy (sic)?
Q: This is the same stuff that I bought, this is my marking.
PROS ASIS:
Witness identified the sachet previously marked Exhibit "F-3." May we request that the marking placed by the witness
in the sachet be marked as Exhibit "F-3-B."
xxxx
Q: How sure are you that the sachet that you have just identified is also the sachet that you recovered during the
operation?
A: Nobody held it except me.
Q: How did you identify the sachet?
A: The marking that I made.14 [emphasis supplied]
In his cross-examination, PO1 Manalo again stated that he was the one who marked the confiscated plastic sachets
with "RM."
We point out that succeeding handlers of the specimen will use the initial markings as reference. If at the first instance
or opportunity, there are already doubts on who really placed the markings on the seized sachets (or if the markings
were made in accordance with the required procedure), serious uncertainty hangs over the identification of the seized
shabu that the prosecution introduced into evidence.
In addition, the records do not show that the sachets were marked in the presence of the appellant. In People v.
Sanchez,15 we explained that the "marking" of the seized items to truly ensure that they are the same items that enter
the chain and are eventually the ones offered in evidence should be done (1) in the presence of the apprehended
violator (2) immediately upon confiscation.16 We explained therein that [t]his step initiates the process of protecting
innocent persons from dubious and concocted searches, and of protecting as well the apprehending officers from
harassment suits based on planting of evidence under Section 29and on allegations of robbery or theft.
Significantly, PO1 Manalo and PO1 Mutia did not even mention that they marked the seized plastic sachet in their
Joint Affidavit of Arrest.
In People of the Philippines v. Merlita Palomares y Costuna, 17 the Court acquitted the accused for the prosecution’s
failure to clearly establish the identity of the person who marked the seized drugs; the place where marking was
made; and whether the marking had been made in the accused’s presence.
As to the subsequent links in the chain of custody, PO1 Manalo stated that he handed the seized plastic sachets to the
desk officer at the police station.1âwphi1 Curiously, the identity of this desk officer was never revealed during trial.
This is particularly significant since no reference was ever made as to the person who submitted the seized specimen
to the PNP Crime Laboratory for examination. PO1 Manalo, in fact, testified that he could not remember the person
who brought the seized plastic sachets to the crime laboratory. Notably, the specimen was forwarded to the crime
laboratory only at 10:35 p.m. It was not clear, therefore, who had temporary custody of the seized items when they left
the hands of PO1 Manalo until they were brought to the crime laboratory for qualitative analysis.
The stipulation on the testimony of the forensic chemist does nothing to help fill the gap as regards the custody and
possession of the sachets from the police station to the crime laboratory. To recall, the parties merely stipulated that
P/Sr. Insp. Banac received a request for laboratory examination, together with the specimen to be examined; that he
recorded the receipt of the sachets in the logbook and conducted a physical, chemical, and confirmatory test on the
submitted specimen; that he found them positive for the presence of shabu; and that he put his markings on the
sachet and placed it in an improvised envelope before forwarding it to the evidence custodian. Notably, the RTC held
that P/Sr. Insp. Banac "has no personal knowledge from whom the subject specimen presented before this court was
taken (sic)."18 Simply put, the stipulated testimony of the forensic chemical officer has no bearing on the question of
whether the specimen submitted for chemical analysis and subsequently presented in court were the same as that
seized from the appellant.
The requirements of paragraph 1, Section 21
of Article II of R.A. No. 9165
The required procedure on the seizure and custody of drugs is embodied in Section 21, paragraph 1,Article II of R.A.
No. 9165, which states:
1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom
such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and
the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the
inventory and be given a copy thereof. [emphasis ours]
This is implemented by Section 21(a), Article II of the Implementing Rules and Regulations of R.A. No. 9165, which
reads:
(a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom
such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and
the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the
inventory and be given a copy thereof: Provided, that the physical inventory and photograph shall be conducted at the
place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending
officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that non-compliance with
these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are
properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody
over said items; [emphasis ours]
This procedure, however, was not shown to have been complied with by the members of the buy-bust team, asPO1
Manalo himself admitted that the police did not make an inventory and photograph the seized items either at the place
of seizure or at the police station. In addition, the police did not offer any acceptable reason why they failed to do a
basic requirement like a physical inventory of the seized drugs, considering that there were only three (3) sachets
taken from the appellant.
In the recent case of People of the Philippines v. Rosalinda Casabuena, 19 we acquitted the accused for failure of the
police to make an inventory and to photograph the seized shabu. We explained that strict compliance with the
prescribed procedure is required because of the illegal drug's unique characteristic rendering it indistinct, not readily
identifiable, and easily open to tampering, alteration, or substitution either by accident or otherwise.
No Presumption of Regularity in the Performance of Official Duties
The courts a quo erred in giving weight to the presumption of regularity in performance that a police officer enjoys in
the absence of any taint of irregularity and of ill motive that would induce him to falsify his testimony. The regularity of
the performance of the police officers’ duties leaves much to be desired in this case given the lapses in their handling
of the allegedly confiscated shabu. The totality of all the procedural lapses we previously discussed effectively
produced serious doubts on the integrity and identity of the corpus delicti, especially in the face of allegations of frame
up and extortion. We have previously held that these lapses negate the presumption that official duties have been
regularly performed by the police officers. Any taint of irregularity affects the whole performance and should make the
presumption unavailable.20 We also entertain serious doubts on PO1 Manalo’s claim that they coordinated with the
Philippine Drug Enforcement Agency (PDEA) before the buy-bust operation, as he admitted that there was no pre-
operation report or coordination sheet prepared by the police. Significantly, PO1 Manalo likewise admitted that the
police did not coordinate with the barangay officials of the subject area. To our mind, these circumstances vis-à-vis the
lapses made in the handling and safekeeping of the alleged sachets of shabu puts in doubt the claim of the police that
they had conducted a legitimate buy-bust operation.
In fine, the totality of evidence presented in the instant case does not support the appellant's conviction for violation of
Section 5, Article II, R.A. No. 9165, since the prosecution failed to prove beyond reasonable doubt all the elements of
the offense. We reiterate that the prosecution’s failure to comply with Section 21, Article II of R.A. No. 9165, and with
the chain of custody requirement of this Act, compromised the identity of the item seized, which is the corpus delicti of
the crime charged against appellant. Following the constitutional mandate, when the guilt of the appellant has not
been proven with moral certainty, as in this case, the presumption of innocence prevails and his exoneration should be
granted as a matter of right.21
A final note.
We are mindful of the pernicious effects of drugs in our society; they are lingering maladies that destroy families and
relationships, and engender crimes. The Court is one with all the agencies concerned in pursuing an intensive and
unrelenting campaign against this social dilemma. Regardless of our desire to curb this menace, we cannot disregard
the protection provided by the Constitution, most particularly on the presumption of innocence bestowed on the
appellant. Proof beyond reasonable doubt, or that quantum of proof sufficient to produce moral certainty that would
convince and satisfy the conscience of those who act in judgment, is indispensable to overcome this constitutional
presumption. If the prosecution has not proved, in the first place, all the elements of the crime charged, which in this
case is the corpus delicti, then the appellant deserves no less than an acquittal. 22
WHEREFORE, premises considered, we REVERSE and SET ASIDE the April 28, 2009 decision of the Court of
Appeals in CA-G.R. CR-H.C. No. 02886. Sonia Bemel Nuarin is hereby ACQUITTED for the failure of the prosecution
to prove her guilt beyond reasonable doubt. She is ordered immediately RELEASED from detention unless she is
confined for another lawful cause.
Let a copy of this Decision be furnished the Superintendent, Correctional Institution for Women, Mandaluyong City, for
immediate implementation. The Superintendent of the Correctional Institution for Women is directed to report the
action she has taken to this Court within five (5) days from receipt of this Decision.
SO ORDERED.
PEOPLE OF THE PHILIPPINES vs. MARILOU HILARIO y DIANA and LALINE GUADAYO y ROYO
G.R. No. 210610 January 11, 2018
LEONARDO-DE CASTRO, J.:
This is an appeal filed by accused-appellant Marilou D. Hilario (Hilario) of the Decision 1 dated July 18, 2013 of the
Court of Appeals in CA-G.R. CR-H.C. No. 05244, affirming with modification the Decision 2 dated August 23, 2011 of
the Regional Trial Court (RTC) of Lemery, Batangas, Branch 5 in Criminal (Crim.) Case Nos. 10-2008, 11-2008, and
13-2008. In its assailed Decision, the appellate court found Hilario guilty of illegal sale of dangerous drugs, in violation
of Article II, Section 5 of Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of
2002; but acquitted Hilario and her co-accused Lalaine R. Guadayo (Guadayo) of illegal possession of dangerous
drugs, penalized under Article II, Section 11 of Republic Act No. 9165. The RTC had previously convicted Hilario and
Guadayo of all charges against them.
On January 25, 2008, three Informations were filed before the RTC against Hilario and Guadayo, to wit:

Docket No. Accused Charge

Illegal Sale of Dangerous Drugs

Crim. Case No. 10-2008 Hilario (Article II, Section 5 of R.A. No.
9165)

Illegal Possession of
Crim. Case No. 11-2008 Hilario Dangerous Drugs (Article II,
Section 11 of R.A. No. 9165)

Illegal Possession of
Crim. Case No. 13-2008 Guadayo Dangerous Drugs (Article II,
Section 11 of R.A. No. 9165)

The Information in Crim. Case No. 10-2008 accused Hilario of illegal sale of dangerous drugs, allegedly committed as
follows:
That on or about the 22nd day of January, 2008, at about 11 :00 o'clock in the evening, at Barangay Maguihan,
Municipality of Lemery, Province of Batangas, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, without authority of law, did then and there willfully and unlawfully sell, deliver and give away
one (1) small heat-sealed transparent plastic sachet containing methamphetamine hydrochloride commonly known as
"shabu", weighing 0.04 gram, referred to as specimen A (NBS-1) in Chemistry Report No. BD-012-08, a dangerous
drug.3
Hilario was also charged with illegal possession of dangerous drugs under the Information in Crim. Case No. 11-2008,
thus:
That on or about the 22nd day of January, 2008, at about 11:00 o'clock in the evening, at Barangay Maguihan,
Municipality of Lemery, Province of Batangas, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, without authority of law, did then and there willfully and unlawfully have in her possession,
custody and control one (1) small heat-sealed transparent plastic sachet containing methamphetamine hydrochloride
commonly known as "shabu", weighing 0.03 gram, referred to as specimen B (NBS-2) in Chemistry Report No. BD-
012-08, a dangerous drug.4
The Information in Crim. Case No. 13-2008 was similarly worded to that in Crim. Case No. 11-2008, except that it
incriminated Guadayo for illegal possession of "one (1) small heat-sealed transparent plastic sachet containing
methamphetamine hydrochloride commonly known as 'shabu,' weighing 0.04 gram, a dangerous drug." 5
When arraigned on April 29, 2008, Hilario and Guadayo pleaded not guilty to the charges against them. 6
The prosecution presented a lone witness, Police Officer (PO) 1 Nemesio Brotonel de Sagun (de Sagun) of the
Philippine National Police (PNP), then assigned in Lemery, Batangas. PO1 de Sagun testified that on January 22,
2008, at around 11:00 in the evening, he was with P02 Arnold Magpantay (Magpantay) and POI Melvin Cabungcal
(Cabungcal) in Sitio Bagong Barrio, Barangay (Brgy.) Maguihan, Lemery, Batangas, to conduct surveillance and a
buy-bust operation. POI de Sagun, in civilian clothes, acted as poseur-buyer and was able to buy shabu for ₱500.00
from Hilario. Upon consummation of the sale, POI de Sagun personally arrested Hilario and marked the ₱500.00-bill
he paid Hilario as "NBS-1" and the shabu Hilario sold to him as "NBS-2." After the arrest, POI de Sagun brought
Hilario to the Lemery police station and turned over custody of Hilario to the investigator-on-duty, but PO1 de Sagun
could not recall the name of said investigator. PO1 de Sagun also claimed that he prepared an inventory of the seized
items in the presence of "Ma'm Orlina" and Sims Garcia, representatives from the Department of Justice (DOJ) and
the media, respectively. PO1 de Sagun then brought the seized items to the Batangas Provincial Crime Laboratory
Office for examination, and according to him, the submitted specimen tested positive for shabu. 7
PO1 de Sagun further recounted that during the buy-bust operation, Guadayo ran away, so PO2 Magpantay had to
chase after her. When P02 Magpantay subsequently caught up with Guadayo, he recovered and confiscated from her
another sachet of shabu. PO1 de Sagun, though, admitted that he was not personally present when PO2 Magpantay
seized the sachet of shabu from Guadayo.
During PO1 de Sagun's direct examination, a brown sealed envelope was presented, and when opened, it contained
two heat-sealed transparent sachets of shabu. When questioned as to why there were two sachets of shabu, PO1 De
Sagun maintained that he confiscated only one sachet from Hilario, and suggested that the other sachet was the one
seized by PO2 Magpantay from Guadayo. Between the two sachets of shabu, PO1 de Sagun identified the sachet
marked "NBS-1" as the one which he confiscated from Hilario. 8
When PO1 de Sagun was subjected to cross-examination, he reiterated that he had marked the ₱500.00-bill used in
the buy-bust operation as "NBSI" and the sachet of shabu bought from Hilario as "NBS-2." When pressed further by
the defense counsel on the fact that he identified the sachet of shabu marked as "NBS- I" as the one he seized from
Hilario, PO1 de Sagun confirmed the apparent discrepancies in his testimony. 9
Also in the course of PO1 de Sagun's cross-examination, he attested that he, PO2 Magpantay, and PO1 Cabungcal
went to Brgy. Maguihan on January 22, 2008 based on information gathered from concerned citizens that sale of
dangerous drugs was rampant in the area; they prepared a pre-operation report but he did not have a copy of the
same with him at the trial; they did not know nor did they conduct a surveillance of Hilario and Guadayo prior to
January 22, 2008; and when they went to Brgy. Maguihan, they were not certain of the subject of their buy-bust
operation.
The prosecution additionally submitted as evidence the Magkalakip na Sinumpaang Salaysay dated January 22, 2008
of POI de Sagun and P02 Magpantay; Chemistry Report No. BD-012-08 dated January 23, 2008 issued by Police
Chief Inspector (P/CInsp.) Jupri Caballegan Delantar, Forensic Chemical Officer, of the Batangas Provincial Crime
Laboratory Office, PNP; the sachet of shabu with marking "NBS-1 ;" and photocopy of the P500.00-bill with Serial No.
665579 and marking "NBS-1." Chemistry Report No. BD-012-08 stated that two specimens were seized from
Hilario, i.e., Specimens A (NBSl) and B (NBS-2), weighing 0.04 gram and 0.03 gram, respectively, which both tested
positive for Methamphetamine Hydrochloride, a dangerous drug.
For its part, the defense called Hilario10 and Guadayo11 to the witness stand. Hilario used to live in Tondo, Manila, but
their house was demolished, so she and her family moved to Brgy. Maguihan in Lemery, Batangas in March 2007.
Guadayo lived with and served as a babysitter for Hilario's sister-in-law.
According to the combined narrative of Hilario and Guadayo, on January 22, 2008, at about 10:00 in the evening, they
were both at Hilario's house. Hilario was tending to her sick 12-year-old daughter, and Guadayo was there to help
Hilario with the laundry. A neighbor, Feliciano Anuran (Anuran), had just arrived to borrow a DVD, when three police
officers entered Hilario's house. Among the police officers, Hilario already knew PO1 de Sagun at that time because
the latter frequented their place. The police officers demanded that Hilario show them the money and shabu. Hilario
replied that she did not have any money and shabu. Without presenting any warrant, the police officers, particularly,
PO1 de Sagun, then searched Hilario's house, but found nothing. At this point, Anuran ran out of the house and was
chased by the police officers. When the police officers returned, they invited Hilario and Guadayo to the police station
to answer some of the police officers' questions. When Hilario further inquired as to the reason for the invitation, the
police officers told her to just go with them. The police officers brought Hilario, Guadayo, and even Hilario's sick
daughter to the police station, and after only a short stay at an office in the police station, and without actually being
asked any questions, all three were put in jail. On January 23, 2008, Hilario and Guadayo were subjected to a drug
test, and on January 24, 2008, they were brought to Batangas City for inquest proceedings.
On August 23, 2011, the RTC promulgated its Decision, finding Hilario and Guadayo guilty of all the charges against
them. The RTC highlighted that this was a case of a buy-bust operation and adjudged that the prosecution was able to
prove all the elements of the offenses charged, to wit, the prosecution witness, PO1 de Sagun, testified on how the
buy-bust transaction took place and properly identified the poseur-buyer and seller, plus the illegal drug was presented
as evidence in court. The RTC sentenced Hilario and Guadayo as follows:
WHEREFORE, premises considered, judgment is hereby rendered as follows:
1. In Criminal Case No. 10-2008, accused Marilou Hilario y Diana, is hereby found guilty beyond reasonable doubt for
violating Sec. 5 of Republic Act 9165 and is hereby sentenced to suffer the penalty of life imprisonment and a fine of
Five Hundred Thousand Pesos (₱500,000.00);
2. In Criminal Case No. 11-2008, accused Marilou Hilario y Diana, is hereby found guilty beyond reasonable doubt for
violating Sec. 11 of Republic Act 9165 and is hereby sentenced to suffer the penalty of twelve (12) years and one (1)
day to twenty (20) years of imprisonment;
3. In Criminal Case No. 13-2008, accused Lalaine Guadayo y Royo, is hereby found guilty beyond reasonable doubt
for violating Sec. 11 of Republic Act 9165 and is hereby sentenced to suffer the penalty of twelve (12) years and one
(1) day to twenty (20) years of imprisonment.12
The Motion for Reconsideration of Hilario and Guadayo was denied for lack of merit by the RTC in an Order 13 dated
September 26, 2011. Hilario and Guadayo filed a Notice of Appeal, 14 which the RTC granted in an Order15 dated
October 5, 2011.
The appeal of Hilario and Guadayo before the Court of Appeals was docketed as CA-G.R. CR.-H.C. No. 05244.
In its Decision dated July 18, 2013, the Court of Appeals partially granted the appeal.
The Court of Appeals affirmed the conviction of Hilario for illegal sale of dangerous drugs in Crim. Case No. 10-2008,
finding PO1 de Sagun's testimony on the completed buy-bust operation· credible. It was amply proven by PO1 de
Sagun's testimony that a sale of shabu transpired between Hilario as the ·seller and PO1 de Sagun as the poseur-
buyer. The appellate court also cited the presumption of regularity in PO1 de Sagun's performance of his official
duties; the absence of proof of ill motive on PO1 de Sagun's part to falsely impute a serious crime against Hilario; and
substantial compliance with the procedure on custody of evidence in drug cases since PO1 de Sagun took custody of
the sachet of shabu seized from Hilario and personally delivered the same to the crime laboratory for examination,
wherein it was tested positive for shabu.
The Court of Appeals though, in the same Decision, acquitted Hilario in Crim. Case No. 11-2008 and Guadayo in Crim.
Case No. 13-2008, for the following reasons:
Criminal Case No. 11-2008
On the other hand, this Court disagrees with the trial court in finding accused-appellant Hilario guilty for violation of
Section 11 of R.A. No. 9165.
xxxx
In prosecution 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.
Significantly, in the present case, only one sachet of shabu was confiscated from accused-appellant [Hilario], the one
subject of the sale. No evidence was shown that she was further apprehended in possession of another quantity of
prohibited drugs not covered by or included in the sale. As correctly argued by the plaintiff-appellee, the accused
cannot be convicted for possession of the prohibited drugs she sold because possession of dangerous drugs is
generally inherent in the crime of sale.
In People v. Posada, the Supreme Court ruled that possession of prohibited or dangerous drugs is absorbed in the
sale thereof, citing the case of People v. Lacema x x x.
xxxx
To reiterate, only one (1) shabu sold by accused-appellant, Hilario was established. There was no other evidence that
another shabu was found in her possession, not covered by the sale and probably intended for a different purpose like
another sale or for her own use was proven. Accordingly, she cannot be convicted separately for illegal possession
and for illegal sale because in this particular case possession is absorbed in the act of sale thereof.
Criminal Case No. 13-2008
Anent, accused-appellant, Guadayo, this Court is convinced that the trial court erred in finding the accused guilty for
violation of Section 11 of R.A. No. 9165.
The prosecution was able to establish that appellant Guadayo was in possession of a sachet of shabuas testified to by
PO1 De Sagun who recounted that PO1 Magpantay pursued and arrested Guadayo x x x.
xxxx
Unfortunately, the record is bereft of proof on the chain of custody of the shabu taken from appellant Guadayo. PO1
De Sagun did not state that the sachet of shabu was handed to him by PO1 Magpantay after it was confiscated from
appellant Guadayo. The chain of custody rule requires that the 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. Notably, in this case, the prosecution
failed to put on witness stand PO1 Magpantay who allegedly ran after appellant Guadayo and seized the shabu.
Corollary thereto, there was a break in the chain of custody because no mention was made as to what happened to
the substance from the time it was seized from the appellant [Guadayo], how it got to the laboratory and how it was
kept before being offered in evidence.
More importantly, no shabu allegedly seized from appellant, Guadayo was identified before the trial court.
As aptly held by the Supreme Court in Malillin v. People:
The dangerous drug itself constitutes the very corpus delicti of the offense and the fact of its existence is vital to a
judgment of conviction. Essential therefore in these cases is that the identity of the prohibited drug be established
beyond doubt.
Likewise, the Supreme Court made an enlightening disquisition on this matter in People v. Doria, viz.:
Given the high concern for the due recording of the authorized movements and custody of the seized drugs or
controlled chemicals or plant sources of dangerous drugs or laboratory equipment, the presentation as evidence in
court of the dangerous drugs subject of and recovered during the illegal sale is material in every prosecution for the
illegal sale of dangerous drugs. Without such dangerous drugs being presented as evidence, the State does not
establish the corpus delicti, which, literally translated from Latin, refers to the body of the crime, or the actual
commission by someone of the particular offense charged.
With crucial portions of the chain of custody not clearly accounted for and the alleged shabuconfiscated from appellant
Guadayo not clearly established, reasonable doubt is thus created as to her guilt. Appellant, Guadayo is therefore
entitled to an acquittal for violation of Section 11 of Article II of R.A. No. 9165. 16
Ultimately, the Court of Appeals decreed:
WHEREFORE, premises considered, this Court PARTIALLY GRANTS the instant appeal. The assailed Decision of
RTC of Lemery, Batangas, (Branch 5) dated 23 August 2011 is MODIFIED as follows;
1. Appellant Hilario is hereby ACQUITTED in Criminal Case No. 11-2008 for violation of Section 11 of
RA No. 9165 as being considered absorbed in the commission of Section 5 of RA No. 9165 under
Criminal Case No. 10- 2008; and
2. Appellant Guadayo is hereby ACQUITTED in Criminal Case No. 13-2008 for violation of Section 11
of R.A. No. 9165 on reasonable doubt and is ordered immediately RELEASED from detention, unless
she is confined for any other lawful case.
Other aspects of the Decision are hereby AFFIRMED.
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 (5) days from receipt. 17
Hilario's Notice of Appeal was given due course by the appellate court in a Resolution 18 dated August 13, 2013.
In a Resolution19 dated February 19, 2014, this Court required the parties to file their respective Supplemental Briefs if
they so desire. Both parties manifested that they are no longer filing a Supplemental Brief. 20
In her Brief filed before the Court of Appeals, Hilario argued that the prosecution failed to establish the elements of
illegal sale of dangerous drugs, penalized under Article II, Section 5 of Republic Act No. 9165. Hilario contended that
PO1 de Sagun only made a blanket declaration that as poseur-buyer, he was able to buy shabu from Hilario and his
testimony lacked clear and complete details of the supposed buy-bust operation. Hilario likewise averred that the
identity of the shabu supposedly bought and confiscated from Hilario was not established with certainty by the
prosecution, pointing out that PO1 de Sagun's confusion as to the markings affixed on the seized item was apparent.
Thus, Hilario asserted that serious doubts arose as to whether the sachet of suspected shabu submitted for laboratory
examination were the same as that purportedly bought and confiscated from her.
There is merit in this appeal.
At the outset, the Court establishes that an appeal is a proceeding undertaken to have a decision reconsidered by
bringing it to a higher court authority. The right to appeal is neither a natural right nor is it a component of due process.
It is a mere statutory privilege, and may be exercised only in the manner and in accordance with the provisions of law.
When the Court of Appeals imposed a penalty of reclusion perpetua or life imprisonment, an accused may: (1) file a
notice of appeal under Rule 124, Section 13(c) of the Rules of Court to avail of an appeal as a matter of right before
the Court and open the entire case for review on any question; or (2) file a petition for review on certiorari under Rule
45 to resort to an appeal as a matter of discretion and raise only questions of law. 21
In this case, the Court of Appeals affirmed the RTC judgment finding Hilario guilty of illegal sale of dangerous drugs
and imposing upon her the sentence of reclusion perpetua. Hilario filed a Notice of Appeal with the appellate court in
accordance with Rule 122, Section 3(e), in relation to Rule 124, Section 13(c), of the Rules of Court, which provide:
Rule 122
APPEAL
xxxx
SEC. 3. How appeal taken. –
xxxx
(e) Except as provided in the last paragraph of section 13, Rule 124, all other appeals to the Supreme Court shall be
by petition for review on certiorari under Rule 45.
Rule 124
PROCEDURE IN THE COURT OF APPEALS
xxxx
SEC. 13. Certification or appeal of case to the Supreme Court. - x x x
xxxx
(c) In cases where the Court of Appeals imposes reclusion perpetua, life imprisonment or a lesser penalty, it shall
render and enter judgment. imposing such penalty. The judgment may be appealed to the Supreme Court by notice of
appeal filed with the Court of Appeals.
Therefore, Hilario's appeal opens the entire case for review by the Court on any question, whether or not the
questions were raised by Hilario as accused-appellant and whether they are questions of fact or mixed questions of
fact and law.
Undeniably, Hilario challenges the sufficiency of evidence to support her conviction for illegal sale of dangerous drugs.
The RTC and the Court of Appeals gave total faith and credence to the testimony of PO1 de Sagun, the sole
prosecution witness.
The rule that this Court generally desists from disturbing the conclusions of the trial court on the credibility of
witnesses will not apply where the evidence of record fails to support or substantiate the findings of fact and
conclusions of the lower court; or where the lower court overlooked certain facts of substance and value that, if
considered, would affect the outcome of the case; or where the disputed decision is based on a misapprehension of
facts.22 All of these exceptional circumstances are availing in the present case.
In People v. Ismael, 23 the Court pronounced:
To secure a conviction for illegal sale of dangerous drugs under Section 5, Article II of RA 9165, the prosecution must
establish the following elements: (1) the identity of the buyer and the seller, the object of the sale and its consideration;
and (2) the delivery of the thing sold and the payment therefor. What is important is that the sale transaction of drugs
actually took place and that the object of the transaction is properly presented as evidence in court and is shown to be
the same drugs seized from the accused.
xxxx
In cases of illegal sale and illegal possession of dangerous drugs, the dangerous drug seized from the accused
constitutes the corpus delicti of the offense. Thus, it is of utmost importance that the integrity and identity of the seized
drugs must be shown to have been duly preserved. "The chain of custody rule performs this function as it ensures that
unnecessary doubts concerning the identity of the evidence are removed." (Citations omitted.)
PO1 de Sagun's testimony - consisting of generalizations which lacked material details, riddled with inconsistencies,
and uncorroborated - failed to establish the elements of the offense charged with proof beyond reasonable doubt.
PO1 de Sagun described the alleged buy-bust operation only m general terms, thus:
Q Will you please tell the Honorable Court why did your group arrest accused Marilou Hilario on January 22, 2008 at
about 11 o'clock in the evening?
A Through the buy-bust operation we conducted I was able to buy shabu from her, sir.
Q Alright in other words you pretended yourself to buy shabu. Were you able to buy shabu from the said accused?
A Yes, sir.
Q How much shabu did you buy [from] Marilou Hilario?
A Five hundred (₱500.00) pesos only, sir.
Q After buying shabu from the accused in the amount of five hundred pesos (₱500.00), what happened next?
A We immediately arrested the person, sir.
Q Were you in uniform on that time when you conducted the buybust operation?
A No sir, we were in civilian.
Q So after buying shabu you arrested the accused?
A Yes, sir.
Q Were you alone or together with other police officers in arresting the accused?
A I was with PO1 Cabungcal, sir.
Q Who actually among you arrested accused Marilou Hilario?
A I, sir.24
It's a generic narrative of any buy-bust operation, offering no distinctive detail except for Hilario's name as alleged
seller. PO1 de Sagun failed to describe how he came to know that Hilario was selling shabu; where Hilario was and
what she was doing that time; how he approached her and asked to buy shabu from her; how they came to agree on
the purchase price for the shabu; where Hilario got the sachet of shabu she handed to him; and what his pre-arranged
signal was to show the other police officers that the sale had been consummated and Hilario could already be arrested
- details which police officers who carried out legit buy-bust operations should be able to provide readily and
completely.
When pressed for details during his cross-examination, PO1 de Sagun was unable to give enlightening answers -
Q Prior to the conduct of the buy-bust operation, can you tell us what are the preparations you made?
A We prepared a pre-operation report, ma'am.
Q What is the basis of your pre-operation report?
A Due to the sale of the illegal drugs, ma'am.
Q You mean to tell us because of the alleged information that there was a rampant selling of illegal drugs?
A Yes, ma'am.
Q By the way Mr. witness did you conduct surveillance against Marilou Hilario and Lalaine Guadayo prior to January
22, 2008?
A No, ma'am.
Q By the way, do you know this Marilou Hilario on January 22, 2008 or before that day?
A No, ma'am.
Q How about accused Lalaine Guadayo?
A No, ma'am.
Q So, that was the first time that you saw on January 22, 2008 these Marilou Hilario and Lalaine Guadayo?
A Yes, ma'am.
xxxx
Q Do you have a copy of your pre-operation report?
A I have no copy of the pre-operation report, ma'am. 25
So according to PO1 de Sagun, he and his fellow police officers conducted a buy-bust operation in Brgy. Maguihan
based on information from unnamed source/s that selling of drugs was rampant in the area; they prepared a pre-
operation report which was not produced in court; they went to Brgy. Maguihan without a specific target/subject; they
did not conduct any surveillance prior to the buy-bust operation on January 22, 2008; and they did not know Hilario or
Guadayo prior to the buy-bust operation and the arrest of the two. How then were the police officers able to identify
Hilario or Guadayo, from all the other residents of Brgy. Maguihan, as the ones selling drugs in Brgy. Maguihan and
who would be the subject of their buy-bust operation?
The lack of specific details on the planning and conduct of the buybust operation on January 22, 2008 in Brgy.
Maguihan casts serious doubts that it actually took place and/or that the police officers carried out the same in the
regular performance of their official duties. Relevant herein is the following discourse of the Court on buy-bust
operations in People v. Ong26:
A buy-bust operation is a form of entrapment, which in recent years has been accepted as a valid means of arresting
violators of the Dangerous Drugs Law. It is commonly employed by police officers as an effective way of apprehending
law offenders in the act of committing a crime. 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. Its opposite is instigation or inducement,
wherein the police or its agent lures the accused into committing the offense in order to prosecute him. Instigation is
deemed contrary to public policy and considered an absolutory cause.
To determine whether there was a valid entrapment or whether proper procedures were undertaken in effecting the
buy-bust operation, it is incumbent upon the courts to make sure that the details of the operation are clearly and
adequately laid out through relevant, material and competent evidence. For, the courts could not merely rely on but
must apply with studied restraint the presumption of regularity in the performance of official duty by law enforcement
agents. This presumption should not by itself prevail over the presumption of innocence and the constitutionally
protected rights of the individual. It is the duty of courts to preserve the purity of their own temple from the prostitution
of the criminal law through lawless enforcement. Courts should not allow themselves to be used as instruments of
abuse and injustice lest innocent persons are made to suffer the unusually severe penalties for drug offenses.
In People v. Doria, we stressed the "objective" test in buy-bust operations. We ruled that in such operations, the
prosecution must present a complete picture detailing the transaction, which "must start from the initial contact
between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration until the
consummation of the sale by the delivery of the illegal drug subject of the sale. We emphasized that the manner by
which the initial contact was made, the offer to purchase the drug, the payment of the 'buy-bust' money, and the
delivery of the illegal drug must be the subject of strict scrutiny by courts to insure that law-abiding citizens are not
unlawfully induced to commit an offense."
In the case at bar, the prosecution evidence about the buy-bust operation is incomplete. The confidential informant
who had sole knowledge of how the alleged illegal sale of shabu started and how it was perfected was not presented
as a witness. His testimony was given instead by SPO 1 Gonzales who had no personal knowledge of the same. On
this score, SPOl Gonzales' testimony is hearsay and possesses no probative value unless it can be shown that the
same falls within the exception to the hearsay rule. To impart probative value to these hearsay statements and convict
the appellant solely on this basis would be to render nugatory his constitutional right to confront the witness against
him, in this case the informant, and to examine him for his truthfulness. As the prosecution failed to prove all the
material details of the buy-bust operation, its claim that there was a valid entrapment of the appellants must fail.
(Emphases supplied, citations omitted.)
Furthermore, the prosecution failed to present during the trial the corpus delicti. There were material inconsistencies
between PO1 de Sagun's testimony vis-a-vis the object and documentary evidence submitted by the prosecution itself
which rendered highly questionable whether the dangerous drug presented before the RTC during trial was actually
the same as that seized from Hilario during the buy-bust operation.
During his direct examination, PO1 de Sagun recalled the chain of custody of the items seized from Hilario during the
buy-bust operation, thus:
Q After buying shabu from the accused in the amount of five hundred pesos (₱500.00), what happened next?
A We immediately arrested the person, sir.
xxxx
Q Who actually among you arrested accused Marilou Hilario?
A I, sit.
Q After arresting the accused, what did you do next, if any?
A We placed the markings "NBS-1" to the marked money and in the alleged shabu, "NBS-2", sir.
Q You mean to tell before the Court that immediately after the arrest of the accused you placed markings on the
money used in buying shabu and the shabu itself?
A Yes, sir.
Q In the place where the accused was arrested?
A Yes, sir.
Q Who actually placed the marking in the shabu?
A I, sir.
Q What marking did you place in the money you used in buying shabu?
A "NBS-1 ", sir.
Q What was the denomination of the money you used in buying shabu?
A A five hundred (₱500.00) peso bill, sir.
Q What about in the shabu you obtained ,from the accused in buying the same, what marking did you place?
A "NBS-2", sir.
xxxx
Q You stated earlier, you marked the sachet of shabu you bought from the accused. If the same sachet of shabu will
be shown to you, will you be able to identify or recognize the same?
A Yes, sir.
Q Why will you be able to identify the shabu you bought from the accused during the buy-bust operation?
A Yes, because of the marking, sir.
xxxx
Q What did you do with the shabu you bought from the accused in this case?
A We brought them to the Crime Laboratory, for examination, sir.
Q Do you know what was the result of the laboratory examination of the specimen pertaining to this case?
A It gives positive result, sir.27 (Emphases supplied.)
However, when the public prosecutor opened the brown sealed envelope purportedly containing the dangerous drugs
seized from Hilario, there were two sachets of shabu inside, marked as "NBS-1" and "NBS-2." Upon further
questioning, PO1 de Sagun testified:
FISCAL PEREZ
Q How many sachets of shabu have you taken from the accused aside from the one you bought from the accused?
A Only one, sir.
Q I will ask you, you pretended to buy shabu from the accused as in fact you were able to buy shabu?
A Yes, sir.
Q The shabu you bought you marked in evidence as "NBS"?
A Yes, sir.
xxxx
FISCAL PEREZ
Q Can you please explain why there are two (2) sachets of shabu here?
A I bought only one·(l) sachet, sir.
COURT
Q What about the other one?
A PO1 Magpantay ran after one Lalaine, your Honor.
Q The other sachet of shabu was allegedly taken from one Lalaine?
A Yes, Your Honor.
FISCAL PEREZ
Q That's why a case was filed against that Lalaine?
A Yes, sir.
Q So, you were present, who is the police officer who confiscated the sachet of shabu from Lalaine?
A P02 Magpantay, sir.
Q Were you not present when P02 Magpantay took the shabu from
Lalaine?
A Yes, sir.
COURT
Q Were you present?
A No, Your Honor.
Q You were not certain whether Magpantay is present?
A Yes, sir.
FISCAL PEREZ
Q So, in other words you were not present when Magpantay took
the shabu from Lalaine?
A Yes, sir.
COURT
Q Were you present?
A No, Your Honor.
Q You were not certain whether Magpantay is present?
A Yes, sir.
FISCAL PEREZ
Q So, in other words you were not present when Magpantay took the shabu from Lalaine?
A Yes, sir.
xxxx
Q I am showing you sachets of suspected shabu, will you please tell the Honorable Court which among the two (2)
sachets of shabu you bought from Marilou Hilario?
A The one with marking "NBS-1", sir.
Q Why did you say that "NBS-I is the sachet of shabu you bought from Marilou?
A Because of the marking, sir.
Q What marking is that?
A NBS-1, sir.
COURT
Q What is that NBS stands for?
A Nemesio Brotonel de Sagun, Your Honor.28 (Emphases supplied.)
PO 1 de Sagun himself admitted the discrepancies during his cross-examination:
Q And you likewise stated that you were able to buy shabu from accused Marilou Hilario?
A Yes, ma'am.
Q You likewise stated that marked money was marked as NBS-1?
A Yes, ma'am.
Q And that suspected shabu which you allegedly bought from accused Marilou Hilario was marked as NBS-2?
A Yes, ma' am.
Q But when the Public Prosecutor presented to you the alleged shabu which you allegedly bought from the accused
which you identified because of the marking NBS- 1, right?
A Yes, ma'am.
Q So, there was a discrepancy with your marking because you stated before, the marked money was marked as NBS-
1 and the shabu which you allegedly bought from accused Marilou Hilario was already marked as NBS- I, right?
A Yes, ma'am.29
PO1 de Sagun was insistent that he seized only one sachet of shabu from Hilario; and that he marked the ₱500.00-bill
used in the buy-bust operation as "NBS-1" and the sachet of shabu from Hilario as "NBS-2." Yet, confronted with two
sachets of shabu, marked as "NBS-1" and "NBS- 2," he identified the sachet marked as "NBS-1" as the one he bought
from Hilario.
PO1 de Sagun could not explain how there were two sachets of shabu even though he testified that the items seized
from the buy-bust operation were in his custody the entire time from the arrest of Hilario, until their inventory at the
police station, and finally, until the delivery of the suspected shabu to the crime laboratory for examination. The
prosecution claimed that the other sachet of shabu was the one seized by PO2 Magpantay from Guadayo.
The Court is not persuaded.
First, from the very beginning, the prosecution charged Hilario before the RTC through two separate Informations: (a)
Crim. Case No. 10-2008 for illegal sale of dangerous drugs, which involved a sachet of shabu weighing 0.04 gram,
referred to as "specimen A (NBS-1);" and (b) Crim. Case No. l I- 2008 for illegal possession of dangerous drugs, which
involved a sachet of shabu weighing 0.03 gram, referred to as "specimen B (NBS-2)." However, the prosecution
changed its theory before the Court of Appeals, stating in its Brief for the Appellee that only one sachet of shabu was
confiscated from Hilario and agreeing in the acquittal of Hilario in Crim. Case No. 11-2008 for the reason that she
"cannot be convicted for possession of the prohibited drugs she sold because possession of dangerous drugs is
generally inherent in the crime of sale of illegal drugs. Conviction for both crimes is not feasible." 30 Meanwhile, the
Information in Crim. Case No. 13-2008 for illegal possession of dangerous drugs against Guadayo involved a sachet
of shabu weighing 0.04 gram.
Second, the documentary evidence of the prosecution, particularly, (a) the Inventories 31 of the items seized, dated
January 22, 2008, prepared by PO1 de Sagun and witnessed by Mrs. Loma Orlina and Simplico "Sims" Garcia,
representatives of the DOJ and the media, respectively; (b) the Laboratory Examination Requests 32 dated January 23,
2008 for the specimens seized, prepared by Police Superintendent Gaudencio Del Valle Pucyutan; and (c) Chemistry
Report Nos. BD-O12-08 and BD-OI3-0833 dated January 23, 2008, issued by P/Cinsp. Delantar, all consistently state
that there were two sachets of shabu from Hilario marked as "NBS-I" (weighing 0.04 gram) and "NBS-2" (weighing
0.03 gram) and one sachet of shabu from Guadayo marked as "AAM-1."
Third, PO2 Magpantay did not testify before the RTC. PO1 de Sagun conceded that he was not present when PO2
Magpantay supposedly apprehended Guadayo and seized one sachet of shabu from her possession, so PO1 de
Sagun's testimony on said matters are hearsay.
And finally, the two sachets of shabu presented before the RTC were marked with "NBS," the initials of PO1 de
Sagun.1âwphi1 It makes no sense that the sachet of shabu taken by PO2 Magpantay from Guadayo be marked with
PO1 de Sagun's initials. As the documentary evidence of the prosecution itself showed, the sachet
of shabu supposedly seized from Guadayo was appropriately marked "AAM-1," presumably, PO2 Magpantay's initials.
Hence, it could not be said that one of the two sachets of shabu presented against Hilario during the trial before the
RTC was purportedly seized from Guadayo.
Clearly, the identity and integrity of the sachet of shabu allegedly seized by PO1 de Sagun from Hilario were not
preserved, despite PO1 de Sagun's assertion that he had been in possession of the said sachet from its seizure from
Hilario until its turnover to the crime laboratory. The prosecution failed to establish the identity of the corpus
delicti, much less, the identity of the corpus delicti with moral certainty. When there are doubts on whether the seized
substance was the same substance examined and established to be the prohibited drug, there can be no crime of
illegal possession or illegal sale of a prohibited drug. The prosecution's failure to prove that the specimen allegedly
seized from Hilario was the same one presented in court is fatal to its case. 34
It is fundamental in the Constitution35 and basic in the Rules of Court36 that the accused in a criminal case enjoys the
presumption of innocence until proven guilty. Likewise, it is well-established in jurisprudence that the prosecution
bears the burden to overcome such presumption. If the prosecution fails to discharge this burden, the accused
deserves a judgment of acquittal. On the other hand, if the existence of proof beyond reasonable doubt is established
by the prosecution, the accused gets a guilty verdict. 37 In order to merit conviction, the prosecution must rely on the
strength of its own evidence and not on the weakness of evidence presented by the defense. 38
The evidence for the prosecution were insufficient in material details and fraught with discrepancies and
contradictions. PO1 de Sagun himself, who claimed to have seized, marked, and kept custody of the sachet
of shabu seized from Hilario, could not positively identify which between the two sachets of shabu he was presented
with at the trial, marked as "NBS-I" and "NBS-2," was the one he actually seized from Hilario. Absent proof beyond
reasonable doubt, the Court cannot merely rely on the presumption that PO1 de Sagun regularly performed his official
duties.
As the Court declared in Mallillin v. People,39 the presumption of regularity is merely just that - a mere presumption
disputable by contrary proof and which, when challenged by the evidence, cannot be regarded as binding truth.
Suffice it to say that this presumption cannot preponderate over the presumption of innocence that prevails if not
overthrown by proof beyond reasonable doubt. The lack of conclusive identification of the illegal drugs allegedly
seized from Hilario in this case strongly militates against a finding of guilt.
Also worth reproducing hereunder is the declaration of the Court in People v. Pagaduan40that:
We are not unmindful of the pernicious effects of drugs in our society; they are lingering maladies that destroy families
and relationships, and engender crimes. The Court is one with all the agencies concerned in pursuing an intensive
and unrelenting campaign against this social dilemma. Regardless of how much we want to curb this menace, we
cannot disregard the protection provided by the Constitution, most particularly the presumption of innocence bestowed
on the appellant. Proof beyond reasonable doubt, or that quantum of proof sufficient to produce moral certainty that
would convince and satisfy the conscience of those who act in judgment, is indispensable to overcome this
constitutional presumption. If the prosecution has not proved, in the first place, all the elements of the crime charged,
which in this case is the corpus delicti, then the appellant deserves no less than an acquittal.
WHEREFORE, premises considered, the Decision dated July 18, 2013 of the Court of Appeals in CA-G.R. CR-H.C.
No. 05244 is REVERSED and SET ASIDE. Accused-appellant Marilou D. Hilario is ACQUITTED of the charge of
illegal sale of dangerous drugs, under Article II, Section 5 of Republic Act No. 9165, otherwise known as the
Comprehensive Dangerous Drugs Act of 2002, for failure of the prosecution to prove her guilt beyond reasonable
doubt. She is ORDERED immediately RELEASED from detention unless she is confined for another lawful cause.
Let a copy of this Decision be furnished the Superintendent of the Correctional Institution for Women for immediate
implementation and to report the action she has taken to this Court within five (5) days from receipt of this Decision.
SO ORDERED.
JAIME D. DELA CRUZ vs. PEOPLE OF THE PHILIPPINES
G.R. No. 200748 July 23, 2014
SERENO, CJ:
This is a Petition for Review on Certiorari, filed by petitioner Jaime D. dela Cruz, from the Decision 1 dated 22 June
2011 issued by the Twentieth Division of the Court of Appeals (CA) and Resolution 2 dated 2 February 2012 issued by
the Former Twentieth Division of the CA in CA-G.R. C.R. No. 00670.
THE ANTECEDENT FACTS
Petitioner Jaime D. dela Cruz was charged with violation of Section 15, Article II of Republic Act No. (R.A.) 9165, or
The Comprehensive Dangerous Drugs Act of 2002, by the Graft Investigation and Prosecution Officer of the Office of
the Ombudsman - Visayas, in an Information3 dated 14 February 2006, which reads:
That on or about the 31st day of January 2006, at Cebu City, Philippines, and within the jurisdiction of this Honorable
Court, the abovenamed accused, JAIME D. DE LA CRUZ, a public officer, having been duly appointed and qualified to
such public position as Police Officer 2 of the Philippine National Police (PNP) assigned in the Security Service Group
of the Cebu City Police Office, after having beenarrested by agents of the National Bureau of Investigation (NBI) in an
entrapment operation, was found positive for use of METHAMPHETAMINE HYDROCHLORIDEcommonly known as
"Shabu", the dangerous drug after a confirmatory test conducted on said accused.
CONTRARY TO LAW.
When arraigned, petitioner, assisted by counsel de parte, pleaded not guilty to the charge. The records do not reveal
whether De la Cruz was likewise charged for extortion.
VERSION OF THE PROSECUTION
The evidence of the prosecution reveals that at 8:00 a.m. of 31 January 2006, the agents and special investigators of
the National Bureau of Investigation, Central Visayas Regional Office (NBI-CEVRO) or simply NBI, received a
Complaint from Corazon Absin (Corazon) and Charito Escobido (Charito). The complainants claimed that at 1:00 a.m.
of that same day, Ariel Escobido (Ariel), the live-in partner of Corazon and son of Charito, was picked up by several
unknown male persons believed to be police officers for allegedly selling drugs. An errand boy gave a number to the
complainants, and when the latter gave the number a ring, they were instructed to proceed to the Gorordo Police
Office located along Gorordo Avenue, Cebu City. In the said police office, they met "James" who demanded from them
₱100,000, later lowered to ₱40,000, in exchange for the release of Ariel. After the meeting, the complainants
proceeded to the NBI-CEVRO to file a complaint and narrate the circumstances of the meeting to the authorities.
While at the NBI-CEVRO, Charitoeven received calls supposedly from "James" instructing her to bring the money as
soon as possible.
The special investigators at the NBI-CEVRO verified the text messages received by the complainants.1âwphi1 A team
was immediately formed to implement an entrapment operation, which took place inside a Jollibee branch at the
corner of Gen. Maxilom and Gorordo Avenues, Cebu City. The officers were able to nab Jaime dela Cruz by using a
pre-marked 500 bill dusted with fluorescent powder, which was made part of the amount demanded by "James" and
handed by Corazon. Petitioner was later brought to the forensic laboratory of the NBI-CEVRO where forensic
examination was done by forensic chemist Rommel Paglinawan. Petitioner was required to submit his urine for drug
testing. It later yielded a positive result for presence of dangerous drugs as indicated in the confirmatory test result
labeled as Toxicology (DangerousDrugs) Report No. 2006-TDD-2402 dated 16 February 2006.
VERSION OF THE DEFENSE
The defense presented petitioner as the lone witness. He denied the charges and testified that while eating at the said
Jollibee branch, he was arrested allegedly for extortion by NBI agents. When he was at the NBI Office, he was
required to extract urine for drug examination, but he refused saying he wanted it to be done by the Philippine National
Police (PNP) Crime Laboratory and not by the NBI. His request was, however, denied. He also requested to be
allowed to call his lawyer prior to the taking of his urine sample, to no avail.
THE RULING OF THE RTC
The Regional Trial Court (RTC) Branch 58 of Cebu City, in its Decision 4 dated 6 June 2007, found the accused guilty
beyond reasonable doubt of violating Section 15, Article II of R.A. 9165 and sentenced him to suffer the penalty of
compulsory rehabilitation for a period of not less than six (6) months at the Cebu Center for the Ultimate Rehabilitation
of Drug Dependents located at Salinas, Lahug, Cebu City. 5
Petitioner filed an appeal assigning as error the RTC’s validation of the result of the urine test despite its dubiousness
having been admitted in spite of the lack of legal basis for itsadmission. First, he alleges that the forensic laboratory
examination was conducted despite the fact that he was not assisted by counsel, in clear violation of his constitutional
right. Secondly, he was allegedly held guilty beyond reasonable doubt notwithstanding the lack of sufficient basis to
convict him.
THE RULING OF THE CA
The CA found the appeal devoid of merit and affirmed the ruling of the RTC.
Petitioner filed a timely Motion for Reconsideration. He argued that the CA overlooked prevailing jurisprudence, which
states that drug testing conducted under circumstancessimilar to his would violate a person’s right to privacy. The
appellate court nevertheless denied the motion.
Petitioner thus filed the present Petition for Review on certiorari. He assigns as errors the use of hearsay evidence as
basis for his conviction and the questionable circumstances surrounding his arrest and drug test.
Respondent, through the Office of the Solicitor General, filed its Comment, 6 saying that "petitioner’s arguments cannot
be the subject of a petition for review on certiorariunder Rule 45, as they involve questions of facts which may not be
the subject thereof; after his arraignment, he can no longer contest the validity of his arrest, less so at this stage of the
proceedings; his guilt has been adequately established by direct evidence; and the manner in which the laboratory
examination was conducted was grounded on a valid and existing law.
THE ISSUE
We deem it proper to give due course to this Petition by confronting head-on the issue of whether or not the drug test
conducted upon the petitioner is legal.
OUR RULING
We declare that the drug testconducted upon petitioner is not grounded upon any existing law or jurisprudence.
We gloss over petitioner’s non-compliance with the Resolution 7 ordering him to submit clearly legible duplicate
originals or certified true copies of the assailed Decision and Resolution. Petitioner was charged with use of
dangerous drugs in violation of the law, the pertinent provision of which reads:
Section 15. Use of Dangerous Drugs. – A person apprehended or arrested, who is found to be positive for use of any
dangerous drug, after a confirmatory test, shall be imposed a penalty of a minimum of six (6) months rehabilitation in a
government center for the first offense, subject to the provisions of Article VIII of this Act. If apprehended using any
dangerous drug for the second time, he/she shall suffer the penalty of imprisonment ranging from six (6) years and
one (1) day to twelve (12) years and a fine ranging from Fifty thousand pesos (₱50,000.00) to Two hundred thousand
pesos (₱200,000.00): Provided,That this Section shall not be applicable where the person tested is also found to have
in his/her possession such quantity of any dangerous drug provided for under Section 11 of this Act, in which case the
provisions stated therein shall apply.8
The RTC subsequently convicted petitioner, ruling that the following elements of Section 15 were established: (1) the
accused was arrested; (2) the accused was subjected to drug test; and (3) the confirmatory test shows that he used a
dangerous drug.
Disregarding petitioner’s objection regarding the admissibility of the evidence, the lower court also reasoned that "a
suspect cannot invoke his right to counsel when he is required to extract urine because, while he is already in custody,
he is not compelled to make a statement or testimony against himself. Extracting urine from one’s body is merely a
mechanical act, hence, falling outside the concept of a custodial investigation."
We find the ruling and reasoning of the trial court, as well as the subsequent affirmation by the CA, erroneous on three
counts.
The drug test in Section 15 does not cover persons apprehended or arrested for any unlawful act, but only for unlawful
acts listed under Article II of R.A. 9165.
First, "[a] person apprehended orarrested" cannot literally mean any person apprehended or arrested for any
crime.The phrase must be read in context and understood in consonance with R.A. 9165. Section 15 comprehends
persons arrested or apprehended for unlawful acts listed under Article II of the law.
Hence, a drug test can be made upon persons who are apprehended or arrested for, among others, the
"importation,"9 "sale, trading, administration, dispensation, delivery, distribution and
transportation",10"manufacture"11 and "possession"12 of dangerous drugs and/or controlled precursors and essential
chemicals; possession thereof "during parties, social gatherings or meetings" 13 ; being "employees and visitors of a
den, dive or resort";14 "maintenance of a den, dive or resort";15 "illegal chemical diversion of controlled precursors and
essential chemicals"16 ; "manufacture or delivery"17 or "possession"18 of equipment, instrument, apparatus, and other
paraphernalia for dangerous drugs and/or controlled precursors and essential chemicals; possession of dangerous
drugs "during parties, social gatherings or meetings" 19 ; "unnecessary"20 or "unlawful"21 prescription thereof; "cultivation
or culture of plantsclassified as dangerous drugs or are sources thereof"; 22 and "maintenance and keeping of original
records of transactions on dangerous drugs and/orcontrolled precursors and essential chemicals." 23 To make the
provision applicable to all persons arrested or apprehended for any crime not listed under Article II is tantamount to
unduly expanding its meaning. Note thataccused appellant here was arrested in the alleged act of extortion.
A charge for violation of Section 15 of R.A. 9165 is seen as expressive of the intent of the law to rehabilitate persons
apprehended or arrested for the unlawful acts enumerated above instead of charging and convicting them of other
crimes with heavier penalties. The essence of the provision is more clearly illustrated in People v. Martinez 24 as
follows:
On a final note, this Court takes the opportunity to be instructive on Sec. 11 (Possession of Dangerous Drugs) and
Sec. 15 (Use of Dangerous Drugs) of R.A. No. 9165, withregard to the charges that are filed by law enforcers. This
Court notes the practice of law enforcers of filing charges under Sec. 11 in cases where the presence of dangerous
drugs as basis for possession is only and solely in the form of residue, being subsumed under the last paragraph of
Sec. 11. Although not incorrect, it would be more in keeping withthe intent of the law to file charges under Sec. 15
instead in order to rehabilitate first time offenders of drug use, provided thatthere is a positive confirmatory test result
as required under Sec. 15.The minimum penalty under the last paragraph of Sec. 11 for the possession of residue
isimprisonment of twelve years and one day, while the penalty under Sec. 15 for first time offenders of drug use is a
minimum of six months rehabilitation in a government center. To file charges under Sec. 11 on the basis of residue
alone would frustrate the objective of the law to rehabilitate drug users and provide them with an opportunity to
recover for a second chance at life.
In the case at bench, the presence of dangerous drugs was only in the form of residue on the drug paraphernalia, and
the accused were found positive for use of dangerous drugs. Granting that the arrest was legal, the evidence obtained
admissible, and the chain of custody intact, the law enforcers should have filed charges under Sec. 15, R.A. No. 9165
or for use of dangerous drugs and, if there was no residue at all, they should have been charged under Sec. 14
(Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs During Parties,
Social Gatherings or Meetings). Sec. 14 provides that the maximum penalty under Sec. 12(Possession of Equipment,
Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs) shall be imposed on any person who shall
possess any equipment, instrument, apparatus and other paraphernalia for dangerous drugs. Under Sec. 12, the
maximum penalty is imprisonment of four years and a fine of ₱50,000.00. In fact, under the same section, the
possession of such equipment, apparatus or other paraphernalia is prima facieevidence that the possessor has used
a dangerous drug and shall be presumed to have violated Sec. 15.
In order to effectively fulfill the intent of the law to rehabilitate drug users, this Court thus calls on law enforcers and
prosecutors in dangerous drugs cases to exercise proper discretion in filing charges when the presence of dangerous
drugs isonly and solely in the form of residue and the confirmatory test required under Sec. 15 is positive for use of
dangerous drugs.In such cases, to afford the accused a chance to be rehabilitated, the filing of charges for or involving
possession of dangerous drugs should only be done when another separate quantity of dangerous drugs, other than
mere residue, is found in the possession of the accused as provided for in Sec. 15. (Emphasis supplied)
Furthermore, making the phrase "a person apprehended or arrested" in Section 15 applicable to all persons arrested
or apprehended for unlawful acts, not only under R.A. 9165 but for all other crimes, is tantamount to a mandatory drug
testing of all persons apprehended or arrested for any crime. To overextend the application of thisprovision would run
counter to our pronouncement in Social Justice Society v. Dangerous Drugs Board and Philippine Drug Enforcement
Agency,25 to wit:
x x x [M]andatory drug testing can never be random and suspicionless. The ideas of randomness and being
suspicionless are antithetical to their being made defendants in a criminal complaint. They are not randomly picked;
neither are they beyond suspicion. When persons suspected of committing a crime are charged, they are singled out
and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the
prosecutor’s office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily
consent to the procedure, let alone waive their right to privacy. To impose mandatory drug testing on the accused is a
blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA
6195. Drug testing in this case would violate a person’s right to privacy guaranteed under Sec. 2, Art. III of the
Constitution. Worse still, the accused persons are veritably forced to incriminate themselves. (Emphasis supplied)
The drug test is not covered by allowable non-testimonial compulsion.
We find that petitioner never raisedthe alleged irregularity of his arrest before his arraignment and raises the issue
only now before this tribunal; hence, he is deemed to have waived his right to question the validity of his arrest curing
whatever defect may have attended his arrest.26 However, "a waiver of an illegal warrantless arrest does not mean a
waiver of the inadmissibility of evidence seized during an illegal warrantless arrest." 27
We are aware of the prohibition against testimonial compulsion and the allowable exceptions to such proscription.
Cases where non-testimonial compulsion has been allowed reveal, however, that the pieces of evidence obtained
were all material to the principal cause of the arrest.
The constitutional right of an accused against self-incrimination proscribes the use of physical or moral compulsion to
extort communications from the accused and not the inclusion of his body in evidence when it may be material. Purely
mechanical acts are not included in the prohibition as the accused does not thereby speak his guilt, hence the
assistance and guiding hand ofcounsel is not required. (People vs. Olvis, 238 Phil. 513 [1987]) The essence of the
right against selfincrimination is testimonial compulsion, that is, the giving of evidence against himself through a
testimonial act. (People vs. Casinillo, 213 SCRA 777 [1992]; People vs. Tranca, 235 SCRA 455 [1994]; People vs.
Rondero, 378 Phil. 123 [1999]) Hence,it has been held that a woman charged with adultery may be compelled to
submit to physical examination to determine her pregnancy; (Villaflor vs. Summers, 41 Phil. 62 [1920]) and an
accused may be compelled to submit to physical examination and to have a substance taken from his body for
medical determination as to whether he was suffering from gonorrhea which was contracted by his victim;(U.S. vs. Tan
Teng, 23 Phil. 145 [1912]) to expel morphine from his mouth; (U.S. vs. Ong Siu Hong, 36 Phil. 735 [1917]) to have the
outline of his foot traced todetermine its identity with bloody footprints; (U.S. vs. Salas, 25 Phil. 337 [1913]; U.S. vs.
Zara, 42 Phil. 308 [1921]) and to be photographed or measured, or his garments or shoes removed or replaced, or to
move his body to enable the foregoing things to be done.(People vs. Otadora, 86 Phil. 244 [1950]) 28(Emphasis
supplied)
In the instant case, we fail to see howa urine sample could be material to the charge of extortion.1âwphi1 The RTC
and the CA, therefore, both erred when they held that the extraction of petitioner’s urine for purposes of drug testing
was "merely a mechanical act, hence, falling outside the concept of a custodial investigation."
We note a case where a urine sample was considered as admissible. In Gutang v. People, 29 the petitioner therein and
his companions were arrested in connection with the enforcement of a search warrant in his residence. A PNP-
NARCOM team found and confiscated shabu materials and paraphernalias. The petitioner and his companions in that
case were also asked to give urine samples, which yielded positive results. Later, the petitioner therein was found
guilty of the crime of illegal possession and use of prohibited drugs. Gutang claimed that the latter’s urine sample was
inadmissible in evidence, since it was derived in effect from an uncounselled extrajudicial confession.
In the Gutang et al.case, the Court clarified that "what the Constitution prohibits is the use of physical or moral
compulsion to extort communication from the accused, but not an inclusion of his body in evidence, when it may be
material." The situation in Gutangwas categorized as falling among the exemptions under the freedom from
testimonial compulsion since what was sought tobe examined came from the body of the accused. The Court said:
This was a mechanical act the accused was made to undergo which was not meant to unearth undisclosedfacts but to
ascertain physical attributes determinable by simple observation. In fact, the record shows that petitioner and his co-
accused were not compelled to give samples of their urine but they in fact voluntarily gave the same when they were
requested to undergo a drug test.
Assuming arguendothat the urine samples taken from the petitioner are inadmissible in evidence, we agree with the
trial court that the record is replete with other pieces of credible evidence including the testimonial evidence of the
prosecution which point to the culpability of the petitioner for the crimes charged.
We emphasize that the circumstances in Gutangare clearly different from the circumstances of petitioner in the instant
case.1awp++i1 First, Gutang was arrested in relation to a drug case. Second, he volunteered to give his urine. Third,
there were other pieces of evidence that point to his culpability for the crimes charged. In the present case, though,
petitioner was arrested for extortion; he resisted having his urine sample taken; and finally, his urine sample was the
only available evidencethat was used as basis for his conviction for the use of illegal drugs.
The drug test was a violation of petitioner’s right to privacy and right against self-incrimination.
It is incontrovertible that petitioner refused to have his urine extracted and tested for drugs. He also asked for a lawyer
prior to his urine test. He was adamant in exercising his rights, but all of his efforts proved futile, because he was still
compelled to submit his urine for drug testing under those circumstances.
The pertinent provisions in Article III of the Constitution are clear:
Section 2. The right of the people to be securein 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.
Section 17. No person shall be compelled to be a witness against himself.
In the face of these constitutional guarantees, we cannot condone drug testing of all arrested persons regardless of
the crime or offense for which the arrest is being made.
While we express our commendation of law enforcement agents as they vigorously track down offenders intheir
laudable effort to curb the pervasive and deleterious effects of dangerous drugs on our society, they must, however,
be constantly mindful of the reasonable limits of their authority, because it is not unlikely that in their clear intent to
purge society of its lawless elements, they may be knowingly or unknowingly transgressing the protected rights of its
citizens including even members of its own police force.
WHEREFORE, premises considered, the assailed Decision dated 22 June 2011 issued by the Twentieth Division, and
the Resolution dated 2 February 2012 issued by the former Twentieth Division of the Court of Appeals, in CA-G.R.
C.R. No. 00670 are SET ASIDE. Petitioner is hereby ACQUITTED.
SO ORDERED.
PEOPLE OF THE PHILIPPINES vs. JAVIER MORILLA Y AVELLANO
G.R. No. 189833 February 5, 2014
PEREZ, J.:
Before us is an appeal filed by accused-appellant Javier Morilla y Avellano (Morilla) from the Decision 1 of the Court of
Appeals which affirmed his conviction and that of his co-accused Ronnie Mitra y Tena (Mayor Mitra) by the trial court,
sentencing them2 to suffer the penalty of life imprisonment and to pay a fine of ₱10,000,000.00 each.
The Regional Trial Court Judgment
On 15 October 2001, Morilla, Mayor Mitra, Willie Yang y Yao (Yang) and Ruel Dequilla y Regodan (Dequilla) were
charged in a criminal information as follows:
That on or about October 13, 2001, in Barangay Kiloloran, Municipality of Real, Province of Quezon, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, one of them an incumbent mayor of the
Municipality of Panukulan, Quezon Province, who all belong to an organized/syndicate crime group as they all help
one another, for purposes of gain in the transport of illegal drugs, and in fact, conspiring and confederating together
and mutually aiding and abetting one another, did then and there wilfully, unlawfully, and feloniously transport by
means of two (2) motor vehicles, namely a Starex van bearing plate number RWT-888 with commemorative plate to
read "Mayor" and a municipal ambulance of Panukulan, Quezon Province, methamphetamine hydrochloride, a
regulated drug which is commonly known as shabu, and with an approximate weight of five hundred three point sixty
eight (503.68) kilos, without authority whatsoever. 3
After trial, the Regional Trial Court of Quezon City4 on 1 August 2007 convicted Morilla and his co-accused Mayor
Mitra, then incumbent Mayor of Panukulan, Quezon, of illegal transport 5 of methamphetamine hydrochloride,
commonly known as shabu, with an approximate weight of five hundred three point sixty eight (503.68) kilos.
However, it absolved Dequilla and Yang due to the prosecution’s failure to present sufficient evidence to convict them
of the offense charged. The dispositive of the decision reads:
WHEREFORE, premises considered, judgment is hereby rendered finding accused Ronnie Mitra y Tena and Javier
Morilla y Avellana GUILTY beyond reasonable doubt of the offense charged. Accordingly, both accused are hereby
sentenced to suffer the penalty of life imprisonment and to pay a fine of ₱10,000,000.00 each. Accused Willie Yang y
Yao and Ruel Dequilla y Regodan are hereby ACQUITTED for failure of the prosecution to prove their guilt beyond
reasonable doubt and are ordered immediately released from custody unless held for some other lawful cause.
The methamphetamine hydrochloride ordered retained by the Court as representative sample which is still in the
custody of the PNP Crime Laboratory is ordered turned over to the Philippine Drug Enforcement Agency for proper
disposition.6
The trial court found valid the search conducted by police officers on the vehicles driven by Mayor Mitra and Morilla,
one with control number 888 and the other an ambulance with plate number SFK-372, as the police officers have
already acquired prior knowledge that the said vehicles were suspected to be used for transportation of dangerous
drugs. During the checkpoint in Real, Quezon, the information turned out to be accurate and indeed, the two accused
had in their motor vehicles more than five hundred kilos of methamphetamine hydrochloride. 7
The trial court dismissed the arguments of Mayor Mitra that he was without any knowledge of the contents of the
sacks and that he was merely requested to transport them to Manila on board his Starex van. He explained that he
only accommodated the request of a certain Ben Tan because the latter bought his fishing boat. It likewise dismissed
the defense of ambulance driver Morilla of lack of knowledge of the illegality of the contents. Morilla insisted that he
thought that he was just transporting wooden tiles and electronic spare parts together with Dequilla. The other
passenger of the ambulance, Yang, in his defense, did not bother to inquire about the contents of the vehicle as he
was merely an accommodated passenger of the ambulance.
The court rejected the defenses presented by Morilla and Mayor Mitra as they were caught in flagrante delicto of
transporting dangerous drugs in two vehicles driven by each of them. Absent any convincing circumstance to
corroborate their explanations, the validity of their apprehension was sustained. 8
The ruling of conspiracy between Mayor Mitra and Morilla was based on the testimonies of the four accused
themselves. It was found by the trial court that the two vehicles, the Starex van driven by Mayor Mitra and the
ambulance van driven by Morilla, left Infanta, Quezon en route to Manila. The Starex van which was ahead of the
ambulance was able to pass the checkpoint set up by the police officers. However, the ambulance driven by Morilla
was stopped by police officers. Through the untinted window, one of the police officers noticed several sacks inside
the van. Upon inquiry of the contents, Morilla replied that the sacks contained narra wooden tiles.
Unconvinced, the police officers requested Morilla to open the rear door of the car for further inspection. When it was
opened, the operatives noticed that white crystalline granules were scattered on the floor, prompting them to request
Morilla to open the sacks. At this moment, Morilla told the police officers that he was with Mayor Mitra in an attempt to
persuade them to let him pass.9 His request was rejected by the police officers and upon inspection, the contents of
the sacks turned out to be sacks of methamphetamine hydrochloride. 10 This discovery prompted the operatives to
chase the Starex van of Mayor Mitra. The police officers were able to overtake the van and Mayor Mitra was asked to
stop. They then inquired if the mayor knew Morilla. On plain view, the operatives noticed that his van was also loaded
with sacks like the ones found in the ambulance. Thus, Mayor Mitra was also requested to open the door of the
vehicle for inspection. At this instance, Mayor Mitra offered to settle the matter but the same was rejected. Upon
examination, the contents of the sacks were likewise found to contain sacks of methamphetamine hydrochloride. 11
The two other accused in this case, Dequilla and Yang, were acquitted by the trial court for failure on the part of the
prosecution to establish their guilt beyond reasonable doubt. The court ruled that Dequilla’s and Yang’s mere presence
inside the vehicle as passengers was inadequate to prove that they were also conspirators of Mayor Mitra and
Morilla.12
The Court of Appeals Decision
On 13 July 2009, the appellate court affirmed the ruling of the trial court. It upheld the finding of conspiracy between
Mayor Mitra and Morilla in their common intent to transport several sacks containing methamphetamine hydrochloride
on board their respective vehicles. The singularity of their intent to illegally transport methamphetamine hydrochloride
was readily shown when Morilla agreed to drive the ambulance van from Infanta, Quezon to Manila together with
Mayor Mitra, who drove the lead vehicle, the Starex van. 13
The appellate court likewise dismissed the argument of lack of knowledge of the illegal contents of the sacks. The
claim that the sacks were loaded with wooden tiles was implausible due to the obvious disparity of texture and
volume.14
Court’s Ruling
We affirm the ruling but modify the penalty imposed.
In his supplemental brief, Morilla raised the issues: (1) whether he may be convicted for conspiracy to commit the
offense charged sans allegation of conspiracy in the Information, and (2) whether the prosecution was able to prove
his culpability as alleged in the Information.15
We dismiss his arguments.
Morilla primarily cites the provision on Sec. 1(b), Rule 115 of the Rules on Criminal Procedure 16 to substantiate his
argument that he should have been informed first of the nature and cause of the accusation against him. He pointed
out that the Information itself failed to state the word conspiracy but instead, the statement "the above-named
accused, one of them an incumbent mayor of the Municipality of Panukulan, Quezon Province, who all belong to an
organized/syndicated crime group as they all help one another, did then and there wilfully, unlawfully and feloniously
transport x x x." He argued that conspiracy was only inferred from the words used in the Information. 17
Even assuming that his assertion is correct, the issue of defect in the information, at this point, is deemed to have
been waived due to Morilla’s failure to assert it as a ground in a motion to quash before entering his plea. 18
Further, it must be noted that accused Morilla participated and presented his defenses to contradict the allegation of
conspiracy before the trial and appellate courts. His failure or neglect to assert a right within a reasonable time
warrants a presumption that the party entitled to assert it either has abandoned it or declined to assert it. 19
The finding of conspiracy by both courts is correct.
A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and
decide to commit it.20 To determine conspiracy, there must be a common design to commit a felony. 21
Morilla argues that the mere act of driving the ambulance on the date he was apprehended is not sufficient to prove
that he was part of a syndicated group involved in the illegal transportation of dangerous drugs.
This argument is misplaced.
In conspiracy, it need not be shown that the parties actually came together and agreed in express terms to enter into
and pursue a common design. The assent of the minds may be and, from the secrecy of the crime, usually inferred
from proof of facts and circumstances which, taken together, indicate that they are parts of some complete whole. 22In
this case, the totality of the factual circumstances leads to a conclusion that Morilla conspired with Mayor Mitra in a
common desire to transport the dangerous drugs. Both vehicles loaded with several sacks of dangerous drugs, were
on convoy from Quezon to Manila. Mayor Mitra was able to drive through the checkpoint set up by the police
operatives. When it was Morilla’s turn to pass through the checkpoint, he was requested to open the rear door for a
routinary check. Noticing white granules scattered on the floor, the police officers requested Morilla to open the sacks.
If indeed he was not involved in conspiracy with Mayor Mitra, he would not have told the police officers that he was
with the mayor.
His insistence that he was without any knowledge of the contents of the sacks and he just obeyed the instruction of his
immediate superior Mayor Mitra in driving the said vehicle likewise bears no merit.
Here, Morilla and Mayor Mitra were caught in flagrante delicto in the act of transporting the dangerous drugs on board
their vehicles. "Transport" as used under the Dangerous Drugs Act means "to carry or convey from one place to
another."23 It was well established during trial that Morilla was driving the ambulance following the lead of Mayor Mitra,
who was driving a Starex van going to Manila. The very act of transporting methamphetamine hydrochloride is malum
prohibitum since it is punished as an offense under a special law. The fact of transportation of the sacks containing
dangerous drugs need not be accompanied by proof of criminal intent, motive or knowledge. 24
In a similar case of People v. Libnao,25 this Court upheld the conviction for illegal transportation of marijuana of Libnao
and Nunga, who were caught carrying a bag full of marijuana leaves when they were flagged down on board a
passing tricycle at a checkpoint.
However, we modify the penalty imposed by the trial court as affirmed by the Court of Appeals.
Originally, under Section 15 of Republic Act No. 6425, 26 the penalty for illegal transportation of methamphetamine
hydrochloride was imprisonment ranging from six years and one day to twelve years and a fine ranging from six
thousand to twelve thousand pesos. Pursuant to Presidential Decree No. 1683, 27 the penalty was amended to life
imprisonment to death and a fine ranging from twenty to thirty thousand pesos. The penalty was further amended in
Republic Act No. 7659,28 where the penalty was changed to reclusion perpetua to death and a fine ranging from five
hundred thousand pesos to ten million pesos.
From the foregoing, we sustain the imposed penalty of fine of ₱10,000,00.00 to be paid by each of the accused but
amend the penalty to reclusion perpetua following the provisions of Republic Act No. 7659 and the principle of
retroactive application of lighter penalty. Reclusion perpetua entails imprisonment for at least thirty (30) years after
which the convict becomes eligible for pardon. It also carries with it accessory penalties, namely: perpetual special
disqualification, etc. Life imprisonment, on the other hand, does not appear to have any definite extent or duration and
carries no accessory penalties.29
The full particulars are in Ho Wai Pang v. People,30 thus:
As to the penalties imposed by the trial court and as affirmed by the appellate court, we find the same in accord with
law and jurisprudence. It should be recalled that at the time of the commission of the crime on September 6, 1991,
Section 15 of R.A. No. 6425 was already amended by Presidential Decree No. 1683. The decree provided that for
violation of said Section 15, the penalty of life imprisonment to death and a fine ranging from ₱20,000.00 to
₱30,000.00 shall be imposed. Subsequently, however, R.A. No. 7659 further introduced new amendments to Section
15, Article III and Section 20, Article IV of R.A. No. 6425, as amended. Under the new amendments, the penalty
prescribed in Section 15 was changed from "life imprisonment to death and a fine ranging from ₱20,000.00 to
₱30,000.00" to "reclusion perpetua to death and a fine ranging from ₱500,000.00 to ₱10 million." On the other hand,
Section 17 of R.A. No. 7659 amended Section 20, Article IV of R.A. No. 6425 in that the new penalty provided by the
amendatory law shall be applied depending on the quantity of the dangerous drugs involved.
The trial court, in this case, imposed on petitioner the penalty of reclusion perpetua under R.A. No. 7659 rather than
life imprisonment ratiocinating that R.A. No. 7659 could be given retroactive application, it being more favorable to the
petitioner in view of its having a less stricter punishment.1âwphi1
We agree. In People v. Doroja, we held:
"In People v. Martin Simon (G.R. No. 93028, 29 July 1994) this Court ruled (a) that the amendatory law, being more
lenient and favorable to the accused than the original provisions of the Dangerous Drugs Act, should be accorded
retroactive application, x x x."
And, since "reclusion perpetua is a lighter penalty than life imprisonment, and considering the rule that criminal
statutes with a favorable effect to the accused, have, as to him, a retroactive effect," the penalty imposed by the trial
court upon petitioner is proper. Consequently, the Court sustains the penalty of imprisonment, which is reclusion
perpetua, as well as the amount of fine imposed by the trial court upon petitioner, the same being more favorable to
him.31
WHEREFORE, premises considered, the petition is DENIED and the assailed 13 July 2009 Decision of the Court of
Appeals in CA-G.R. CR-H.C. 02967 is AFFIRMED WITH MODIFICATION with respect to the penalty to be imposed as
Reclusion Perpetua instead of Life Imprisonment and payment of fine of ₱10,000,000.00 by each of the accused.
SO ORDERED.
PEOPLE OF THE PHILIPPINES vs. ROLANDO LAYLO y CEPRES
G.R. No. 192235 July 6, 2011
CARPIO, J.:
The Case
Before the Court is an appeal assailing the Decision1 dated 28 January 2010 of the Court of Appeals (CA) in CA-G.R.
CR-H.C. No. 03631. The CA affirmed the Decision2 dated 16 September 2008 of the Regional Trial Court (RTC) of
Binangonan, Rizal, Branch 67, in Criminal Case No. 06-017, convicting appellant Rolando Laylo y Cepres (Laylo) of
violation of Section 26(b), Article II (Attempted Sale of Dangerous Drugs) 3 of Republic Act No. 91654 (RA 9165) or the
Comprehensive Dangerous Drugs Act of 2002.
The Facts
On 21 December 2005, two separate Informations against appellant Laylo and Melitona Ritwal (Ritwal) were filed with
the RTC of Binangonan, Rizal, Branch 67, docketed as Criminal Case Nos. 06-017 and 06-018, respectively. The
information against Laylo states:
Criminal Case No. 06-017
That on or about the 17th day of December, 2005, in the Municipality of Binangonan, Province of Rizal, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law to sell any
dangerous drug, did then and there willfully, unlawfully, and knowingly attempt to sell, deliver, and give away shabu to
PO1 Angelito G. Reyes, 0.04 gram of white crystalline substance contained in two (2) heat-sealed transparent plastic
sachets which were found positive to the test for Methylamphetamine Hydrochloride, also known as shabu, a
dangerous drug, thus commencing the commission of the crime of illegal sale but did not perform all the acts of
execution which would produce such crime by reason of some cause or accident other than the accused’s own
spontaneous desistance, that is, said PO1 Angelito G. Reyes introduced himself as policeman, arrested the accused
and confiscated the two (2) above-mentioned sachets from the latter.
CONTRARY TO LAW.5
Upon arraignment, both accused pleaded not guilty. Joint trial on the merits ensued. However, during the trial, Ritwal
jumped bail and was tried in absentia. Thus, Ritwal was deemed to have waived the presentation of her evidence and
the case was submitted for decision without any evidence on her part.
The prosecution presented two witnesses: Police Officer 1 (PO1) Angelito G. Reyes (PO1 Reyes) and PO1 Gem A.
Pastor (PO1 Pastor), the poseur-buyers in the attempted sale of illegal drugs.
The prosecution summed up its version of the facts: In the afternoon of 17 December 2005, PO1 Reyes and PO1
Pastor, both wearing civilian clothes, were conducting anti-drug surveillance operations at Lozana Street, Calumpang,
Binangonan, Rizal. While the police officers were in front of a sari-sari store at around 5:40 p.m., appellant Laylo and
his live-in partner, Ritwal, approached them and asked, "Gusto mong umiskor ng shabu?" PO1 Reyes replied, "Bakit
mayroon ka ba?" Laylo then brought out two plastic bags containing shabu and told the police officers,
"Dos (₱200.00) ang isa." Upon hearing this, the police officers introduced themselves as cops. PO1 Reyes
immediately arrested Laylo. Ritwal, on the other, tried to get away but PO1 Pastor caught up with her. PO1 Pastor
then frisked Ritwal and found another sachet of shabu in a SIM card case which Ritwal was carrying.
PO1 Reyes and PO1 Pastor marked the three plastic sachets of shabu recovered from Laylo and Ritwal and
forwarded them to the Philippine National Police Crime Laboratory for forensic testing. Forensic Chemist Police
Inspector Yehla C. Manaog conducted the laboratory examination on the specimens submitted and found the
recovered items positive for methylamphetamine hydrochloride or shabu, a dangerous drug.
The police officers charged Laylo for attempted sale of illegal drugs and used the two plastic sachets containing shabu
as basis while Ritwal was charged for possession of illegal drugs using as basis the third sachet containing 0.02
grams of shabu.
The defense, on the other hand, presented different versions of the facts. The witnesses presented were: appellant
Laylo; Laylo’s three neighbors namely Rodrigo Panaon, Jr., Marlon de Leon, and Teresita Marquez.
Laylo testified that while he and his common-law wife, Ritwal, were walking on the street, two men grabbed them. The
two men, who they later identified as PO1 Reyes and PO1 Pastor, dragged them to their house. Once inside, the
police officers placed two plastic sachets in each of their pockets. Afterwards, they were brought to the police station
where, despite protests and claims that the drugs were planted on them, they were arrested and charged.
To corroborate Laylo’s testimony, the defense presented Laylo’s three neighbors. Marlon de Leon (de Leon), also a
close friend of the couple, testified that he was taking care of the Laylo and Ritwal’s child when he heard a commotion.
He saw men, whom de Leon identified as assets, holding the couple and claimed that he saw one of them put
something, which he described as "plastic," in the left side of Laylo’s jacket.
Rodrigo Panaon, Jr. (Panaon) narrated that on 17 December 2005, at around 5:00 or 6:00 p.m., he was on his way
home when he saw Laylo arguing with three men in an alley. He overheard Laylo uttering, "Bakit ba? Bakit ba?" Later,
Panaon saw a commotion taking place at Laylo’s backyard. The three men arrested Laylo while the latter shouted,
"Mga kapitbahay, tulungan ninyo kami, kami’y dinadampot." Then Panaon saw someone place something inside the
jacket of Laylo as he heard Laylo say, "Wala kayong makukuha dito."
Teresita Marquez (Marquez) testified that while she was fetching water from the well on 17 December 2005, at around
5:00 or 6:00 p.m., she heard Laylo’s son shouting, "Amang, Amang." Marquez then saw the child run to his father, who
was with several male companions. Then someone pulled Laylo’s collar and frisked him. Marquez overheard someone
uttering, "Wala po, wala po." Marquez went home after the incident. At around 9:00 in the evening, Ritwal’s daughter
visited her and borrowed money for Laylo and Ritwal’s release. Marquez then accompanied Ritwal’s daughter to the
municipal hall, where a man demanded ₱40,000.00 for the couple’s release.
In its Decision dated 16 September 2008, the RTC found Laylo and Ritwal guilty beyond reasonable doubt of
violations of RA 9165. The RTC gave credence to the testimonies of the police officers, who were presumed to have
performed their duties in a regular manner. The RTC stated that Reyes and Pastor were straightforward and candid in
their testimonies and unshaken by cross-examination. Their testimonies were unflawed by inconsistencies or
contradictions in their material points. The RTC added that the denial of appellant Laylo is weak and self-serving and
his allegation of planting of evidence or frame-up can be easily concocted. Thus, Laylo’s defense cannot be given
credence over the positive and clear testimonies of the prosecution witnesses. The dispositive portion of the decision
states:
We thus find accused Rolando Laylo GUILTY beyond reasonable doubt of violating Section 26(b) of R.A. No. 9165
and sentence him to suffer a penalty of life imprisonment and to pay a fine of ₱500,000.00. We also find accused
Melitona Ritwal GUILTY beyond reasonable doubt of violating Section 11 of R.A. No. 9165 and illegally possessing a
total of 0.02 grams of Methylamphetamine Hydrochloride or shabu and accordingly sentence her to suffer an
indeterminate penalty of 12 years and one day as minimum to 13 years as maximum and to pay a fine of
₱300,000.00.
Let the drug samples in this case be forwarded to the Philippine Drug Enforcement Agency (PDEA) for proper
disposition. Furnish PDEA with a copy of this Decision per OCA Circular No. 70-2007.
SO ORDERED.6
Laylo filed an appeal with the CA. Laylo imputed the following errors on the RTC:
I. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE OFFENSE
CHARGED DESPITE THE PROSECUTION WITNESS’ PATENTLY FABRICATED ACCOUNTS.
II. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE
OFFENSE CHARGED WHEN HIS GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT.
III. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE
APPREHENDING OFFICERS’ FAILURE TO PRESERVE THE INTEGRITY OF THE ALLEGED SEIZED
SHABU.7
The Ruling of the Court of Appeals
In a Decision dated 28 January 2010, the CA affirmed the decision of the RTC. The dispositive portion of the decision
states:
WHEREFORE, premises considered, the appeal is DISMISSED for lack of merit. The challenged decision of the court
a quo is AFFIRMED. Costs against the accused-appellant.
SO ORDERED.8
Hence, this appeal.
The Ruling of the Court
The appeal lacks merit.
The elements necessary for the prosecution of illegal sale of drugs are: (1) the identity of the buyer and seller, the
object, and the consideration; and (2) the delivery of the thing sold and the payment. 9
In the present case, PO1 Reyes narrated in court the circumstances of the illegal sale:
PROS. ARAGONES:
Q: What time did you proceed to that place of surveillance?
A: 5:40 p.m., Ma’am.
Q: And what happened when you and PO1 Gem Pastor went there?
A: When we were making standby at a nearby store there was a man talking with a woman, the man asked me if we
want to have a shot of shabu.
Q: What was your reply?
A: "Bakit, meron ka ba?"
Q: How did that other person react to that question, what did he tell you, if any?
A: "Gusto mong umiskor ng shabu?"
Q: What happened after that?
A: I replied, "Bakit meron ka ba?" then he showed me two small plastic bags containing shabu, Ma’am.
Q: How big is that bag, Mr. Witness?
A: Small, Ma’am.
Q: Can you tell us the size?
A: (Demonstrating) Almost one inch the size of a cigarette, Ma’am.
COURT: It was in a plastic not in foil?
A: Yes, your Honor.
PROS. ARAGONES:
Q: After showing you two plastic bags, what happened?
A: I introduced myself as a police officer then I caught this man and confiscated the two small plastic bag containing
shabu.
Q: How about the lady?
A: My partner caught the woman because she was intending to run away and he got from her right hand Smart SIM
card case containing one small plastic.10
PO1 Pastor corroborated the testimony of PO1 Reyes:
PROS. ARAGONES:
Q: Mr. Witness, while you were conducting surveillance on December 17, 2005, what happened?
A: While we were conducting surveillance at Lozana Street, Calumpang, Binangonan, Rizal, while we were at the
store, two (2) persons approached us, one male and one female, Ma’am.
Q: Who were those persons? Did you come to know the name of those persons?
A: At that time I don’t know the names but when they were brought to the police station I came to know their names,
Ma’am.
Q: What are the names of these two persons?
A: Rolando Laylo and Melitona Ritwal, Ma’am.
Q: At that time they approached you during the time you were conducting surveillance at Lozana Street, what
happened?
A: The male person approached PO1 Reyes and asked if "iiskor", Ma’am.
Q: What was the reply of PO1 Reyes?
A: He answered "Bakit meron ka ba?"
Q: When that answer was given by Reyes, what did that male person do?
A: He produced two (2) small plastic sachets containing allegedly shabu and he said "dos ang isa."
COURT: What do you mean by "dos ang isa"?
A: Php 200.00, Your Honor.
PROS. ARAGONES:
Q: Where were you when that male person produced two (2) small plastic sachets?
A: I was beside PO1 Reyes, Ma’am.
Q: After he showed the plastic sachets containing drugs, what happened next?
A: We introduced ourselves as policemen, Ma’am.
Q: After you introduced yourselves, what happened next?
A: PO1 Reyes arrested the male person while I arrested the female person, Ma’am.
Q: Why did you arrest the woman?
A: At that time, she was about to run I confiscated from her a SIM card case, Ma’am.
COURT: What was the contents of the SIM card case?
A: One (1) piece of alleged shabu, Your Honor.11
From the testimonies given, PO1 Reyes and PO1 Pastor testified that they were the poseur-buyers in the sale. Both
positively identified appellant as the seller of the substance contained in plastic sachets which were found to be
positive for shabu. The same plastic sachets were likewise identified by the prosecution witnesses when presented in
court. Even the consideration of ₱200.00 for each sachet had been made known by appellant to the police officers.
However, the sale was interrupted when the police officers introduced themselves as cops and immediately arrested
appellant and his live-in partner Ritwal. Thus, the sale was not consummated but merely attempted. Thus, appellant
was charged with attempted sale of dangerous drugs. Section 26(b), Article II of RA 9165 provides:
Section 26. Attempt or Conspiracy. – Any attempt or conspiracy to commit the following unlawful acts shall be
penalized by the same penalty prescribed for the commission of the same as provided under this Act:
xxx
(b) Sale, trading, administration, dispensation, delivery, distribution and transportation of any dangerous drug and/or
controlled precursor and essential chemical;
xxx
Here, appellant intended to sell shabu and commenced by overt acts the commission of the intended crime by
showing the substance to PO1 Reyes and PO1 Pastor. 12 The sale was aborted when the police officers identified
themselves and placed appellant and Ritwal under arrest. From the testimonies of the witnesses, the prosecution was
able to establish that there was an attempt to sell shabu. In addition, the plastic sachets were presented in court as
evidence of corpus delicti. Thus, the elements of the crime charged were sufficiently established by evidence.
Appellant claims that he was a victim of a frame up. However, he failed to substantiate his claim. The witnesses
presented by the defense were not able to positively affirm that illegal drugs were planted on appellant by the police
officers when they testified that "they saw someone place something inside appellant’s jacket." In Quinicot v.
People,13 we held that allegations of frame-up and extortion by police officers are common and standard defenses in
most dangerous drugs cases. They are viewed by the Court with disfavor, for such defenses can easily be concocted
and fabricated.
Appellant asserts that it is unbelievable that he would be so foolish and reckless to offer to sell shabu to strangers.
In People v. de Guzman,14 we have ruled that peddlers of illicit drugs have been known, with ever increasing
casualness and recklessness, to offer and sell their wares for the right price to anybody, be they strangers or not.
What matters is not the existing familiarity between the buyer and the seller, or the time and venue of the sale, but the
fact of agreement as well as the act constituting the sale and delivery of the prohibited drugs.
Further, appellant did not attribute any ill-motive on the part of the police officers. The presumption of regularity in the
performance of the police officers’ official duties should prevail over the self-serving denial of appellant. 15
In sum, we see no reason to disturb the findings of the RTC and CA.1avvphi1 Appellant was correctly found to be
guilty beyond reasonable doubt of violating Section 26(b), Article II of RA 9165.
WHEREFORE, we DISMISS the appeal. We AFFIRM the Decision dated 28 January 2010 of the Court of Appeals in
CA-G.R. CR-H.C. No. 03631.
SO ORDERED.
FRANCISCO SALVADOR B. ACEJAS III vs. PEOPLE OF THE PHILIPPINES
G.R. No. 156643 June 27, 2006
x--------------------------------x
VLADIMIR S. HERNANDEZ vs. PEOPLE OF THE PHILIPPINES
G.R. No. 156891 June 27, 2006
PANGANIBAN, CJ:
This Court defers to the Sandiganbayan’s evaluation of the factual issues. Not having heard any cogent reasons to
justify an exception to this rule, the Court adopts the anti-graft court’s findings. In any event, after meticulously
reviewing the records, we find no ground to reverse the Sandiganbayan.
The Case
Before us are consolidated Petitions for Review 1 assailing the March 8, 2002 Decision,2 and the January 33 and 14,
20034 Resolutions of the Sandiganbayan in Criminal Case No. 20194. Francisco SB. Acejas III and Vladimir S.
Hernandez were found guilty beyond reasonable doubt of direct bribery penalized under Article 210 of the Revised
Penal Code.
Vladimir S. Hernandez, Victor D. Conanan, SPO3 Expedito S. Perlas, Francisco SB. Acejas III and Jose P. Victoriano
were charged on February 8, 1994, in an Information that reads thus:
"That on or about January 12, 1994, or sometime prior thereto in the City of Manila, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused VLADIMIR S. HERNANDEZ and VICTOR CONANAN,
being then employed both as Immigration officers of the Bureau of Immigration and Deportation, Intramuros, Manila,
hence are public officers, taking advantage of their official positions and committing the offense in relation to office,
conspiring and confederating with Senior Police Officer 3 EXPEDITO S. PERLAS of the Western Police District
Command, Manila, together with co-accused Atty. FRANCISCO SB. ACEJAS III, of the LUCENARIO, MARGATE,
MOGPO, TIONGCO & ACEJAS LAW OFFICES, and co-accused JOSE P. VICTORIANO, a private individual, did then
and there, willfully, unlawfully and feloniously demand, ask, and/or extort One Million (P1,000,000.00) PESOS from the
spouses BETHEL GRACE PELINGON and Japanese TAKAO AOYAGI and FILOMENO PELINGON, JR., in exchange
for the return of the passport of said Japanese Takao Aoyagi confiscated earlier by co-accused Vladimir S. Hernandez
and out of said demand, the complainants Bethel Grace Pelingon, Takao Aoyagi and Filomeno Pelingon, Jr. produced,
gave and delivered the sum of Twenty Five Thousand (P25,000.00) Pesos in marked money to the above-named
accused at a designated place at the Coffee Shop, Ground Floor, Diamond Hotel, Ermita, Manila, causing damage to
the said complainants in the aforesaid amount of P25,000.00, and to the prejudice of government service." 5
After trial, all the accused -- except Victoriano -- were convicted. The challenged Decision disposed as follows:
"WHEREFORE, premises considered, accused Vladimir S. Hernandez, Victor D. Conanan, Expedito S. Perlas and
Francisco SB. Acejas III are hereby found GUILTY beyond reasonable doubt of the crime of Direct Bribery, and are
sentenced to suffer the indeterminate penalty of four (4) years, nine (9) months and ten (10) days of prision
correccional, as minimum, to seven (7) years and four (4) months of prision mayor, as maximum, and to pay a fine of
three million pesos (P3,000,000.00). Accused Vladimir S. Hernandez and Victor D. Conanan shall also suffer the
penalty of special temporary disqualification. Costs against the accused.
"On ground of reasonable doubt, accused Jose P. Victoriano is hereby ACQUITTED of the crime charged. The surety
bond he posted for his provisional liberty is cancelled. The Hold Departure Order against him embodied in this Court’s
Order dated July 24, 2000 is recalled."6
The first Resolution acquitted Conanan and denied reconsideration of the other accused. The second Resolution
denied Petitioner Acejas’ Motion for New Trial.
Hence, petitioners now seek recourse in this Court. 7
The Facts
The facts8 are narrated by the Sandiganbayan as follows:
"At around 4:00 to 5:00 p.m. of December 17, 1993, accused Bureau of Immigration and Deportation (BID)
Intelligence Agent Vladimir Hernandez, together with a reporter, went to the house of Takao Aoyagi and Bethel Grace
Pelingon-Aoyagi at 27 Pacific Drive, Grand Villa, Sto. Niño, Parañaque, Metro Manila. His purpose was to serve
Mission Order No. 93-04-12 dated December 13, 1993, issued by BID Commissioner Zafiro Respicio against Takao
Aoyagi, a Japanese national. Hernandez told Takao Aoyagi, through his wife, Bethel Grace, that there were complaints
against him in Japan and that he was suspected to be a Yakuza big boss, a drug dependent and an overstaying alien.
"To prove that he had done nothing wrong, Takao Aoyagi showed his passport to Hernandez who issued an
undertaking (Exh. ‘B’) which Aoyagi signed. The undertaking stated that Takao Aoyagi promised to appear in an
investigation at the BID on December 20, 1993, and that as a guarantee for his appearance, he was entrusting his
passport to Hernandez. Hernandez acknowledged receipt of the passport.
"On December 18, 1993, Bethel Grace Aoyagi called accused Expedito ‘Dick’ Perlas 9 and informed him about the
taking of her husband’s passport by Hernandez. Perlas told her he would refer their problem to his brother-in-law, Atty.
Danton Lucenario of the Lucenario, Margate, Mogpo, Tiongco and Acejas III Law Firm. It was at the Sheraton Hotel
that Perlas introduced the Aoyagis to Atty. Lucenario. They discussed the problem and Atty. Lucenario told the Aoyagis
not to appear before the BID on December 20, 1993.
"As advised by Atty. Lucenario, Takao Aoyagi did not appear before the BID. Instead, Atty. Rufino M. Margate of the
Lucenario Law Firm filed with the BID an Entry of Appearance (Exh. ‘6’ – Acejas). Atty. Margate requested for copies
of any complaint-affidavit against Takao Aoyagi and asked what the ground was for the confiscation of x x x Aoyagi’s
passport.
"Hernandez prepared a Progress Report (Exh. ‘5’ – Hernandez) which was submitted to Ponciano M. Ortiz, the Chief
of Operations and Intelligence Division of the BID. Ortiz recommended that Takao Aoyagi, who was reportedly a
Yakuza and a drug dependent, be placed under custodial investigation.
"In the evening of December 22, 1993 at the Diamond Hotel, the Aoyagis met accused Atty. Francisco Acejas III who
was then accompanied by Perlas. Atty. Acejas informed them that it would be he who would handle their case. A
Contract for Legal Services (Exh. ‘D’) dated December 22, 1993 was entered into by Takao Aoyagi and Atty. Acejas,
who represented the Lucenario Law Firm.
"In the morning of December 23, 1993, Perlas and Atty. Acejas accompanied the Aoyagis to the Domestic Airport as
the latter were going to Davao. It was here that Takao Aoyagi paid Atty. Acejas P40,000.00, P25,000 of which is 50%
of the acceptance fee, and the P15,000.00 is for filing/docket fee (Exh. ‘O’). The Aoyagis were able to leave only in the
afternoon as the morning flight was postponed.
"On December 24, 1993, while attending a family reunion, Bethel Grace Pelingon-Aoyagi informed her brother,
Filomeno ‘Jun’ Pelingon, Jr., about her husband’s passport.
"On January 2, 1994, Jun Pelingon talked to BID Commissioner Zafiro Respicio in Davao and told the latter of Takao
Aoyagi’s problem with the BID. Respicio gave Pelingon his calling card and told Pelingon to call him up in his office.
That same day, Jun Pelingon and Mr. and Mrs. Aoyagi flew back to Manila.
"On January 5, 1994, Jun Pelingon, Dick Perlas, Atty. Acejas, Vladimir Hernandez, Vic Conanan and Akira Nemoto
met at the Aristocrat Restaurant in Roxas Boulevard.
"Another meeting was arranged at the Manila Nikko Hotel in Makati on January 8, 1994 with Jun Pelingon, Perlas,
Atty. Acejas and Hernandez attending.
"On January 11, 1994, on account of the alleged demand of P1 million for the return of Takao Aoyagi’s passport, Jun
Pelingon called up Commissioner Respicio. The latter referred him to Atty. Angelica Somera, an NBI Agent detailed at
the BID. It was Atty. Carlos Saunar, also of the NBI, and Atty. Somera who arranged the entrapment operation.
"On January 12, 1994, Vladimir Hernandez returned the passport to Takao Aoyagi at the Coffee Shop of the Diamond
Hotel. The NBI Team headed by Attorneys Saunar and Somera arrested Dick Perlas, Atty. Acejas and Jose Victoriano
after the latter picked up the brown envelope containing marked money representing the amount being allegedly
demanded. Only Perlas, Acejas and Victoriano were brought to the NBI Headquarters." 10
Version of the Prosecution
Testifying for the prosecution were Bethel Grace Pelingon Aoyagi, Filomeno "Jun" Basaca Pelingon, Jr., and Carlos
Romero Saunar.11
The prosecution evidence showed that it was during a meeting on January 5, 1994, when P1 million as consideration
for the passport was demanded. Conanan averred that Aoyagi was a drug trafficker and Yakuza member. The money
was to be used to settle the alleged "problem" and to facilitate the processing of a permanent visa. When Pelingon
negotiated to lower the amount demanded, Conanan stated that there were many of them in the Bureau of
Immigration and Deportation (BID).12
During the second meeting held at Hotel Nikko, Pelingon was informed that the press and government enforcers were
after Aoyagi. Hernandez asked for a partial payment of P300,000, but Pelingon said that the whole amount would be
given at just one time to avoid another meeting.13
After talking to Commissioner Respicio on January 11, 1994, 14 Pelingon called up Dick Perlas to schedule the
exchange.
Regarding the involvement of Petitioner Acejas, the Office of the Solicitor General (OSG) adds the following facts:
"1.2. On 5 January 1994, [Acejas] and Perlas met Pelingon at the Aristocrat Restaurant. [Acejas] informed
Pelingon that he would file a P1 million lawsuit against the BID agents who confiscated the passport of Takao
Aoyagi. [Acejas] showed Pelingon several papers, which allegedly were in connection with the intended
lawsuit. However, when Hernandez and Conanan arrived at the Aristocrat Restaurant, [Acejas] never
mentioned to the BID agents the P1 million lawsuit. [Acejas] just hid the papers he earlier showed to Pelingon
inside his [Acejas’] bag.
 "1.3. [Acejas] was present when Hernandez proposed that Takao Aoyagi pay the amount of P1 million in
exchange for the help he would extend to him (Takao) in securing a permanent visa in the Philippines.
[Acejas], who was Aoyagi’s lawyer, did nothing.
"1.4. On 10 January 1994, [Acejas], Pelingon, Perlas and Hernandez met at the Hotel Nikko. Thereat,
Hernandez informed the group that certain government officials and even the press were after Takao Aoyagi.
Hernandez said that Takao Aoyagi can make a partial payment of P300,000.00. Pelingon however, assured
the group that Takao Aoyagi would pay in full the amount of P1 million so as not to set another meeting date.
[Acejas] kept quiet throughout the negotiations.
xxx xxx xxx
"1.5.a. [Acejas] was present during the entrapment that took place at the Diamond Hotel. Hernandez handed
the passport to [Acejas], who handed it then to Perlas and thereafter to Takao Aoyagi. After Takao Aoyagi went
over his confiscated passport, Bethel Grace handed to Hernandez the envelope 15 containing the supposed P1
million. Hernandez refused and motioned that [Acejas] be the one to receive it. [Acejas] willingly got the
envelope and placed it beside him and Perlas.
x x x before Hernandez handed out Aoyagi’s pass- port, he reminded the group of their earlier agreement of
‘kaliwaan’, i.e., that after the passport is released, the Aoyagis should give the P1 million." 16
Version of the Defense
Vladimir S. Hernandez, Expedito S. Perlas, Francisco SB. Acejas III, Victor D. Conanan and Ponciano M. Ortiz
testified for the defense.17
To the Sandiganbayan’s narration, Hernandez adds:
"6. x x x [Hernandez], an intelligence agent of the Bureau of Immigration and Deportation (BID), went to the house of
Private Respondents Takao and Bethel Grace Aoyagi to enforce and serve a Mission Order issued and assigned to
him by BID Commissioner Zafiro Respicio on December 13, 1993, for the arrest of Takao Aoyagi.
"7. When Bethel Grace showed [Hernandez] her husband’s passport, [Hernandez] found out that the latter’s [authority]
to stay had already been duly extended. He invited private respondents to go with him to the BID office. They
declined, but made a written undertaking to appear at the BID office for investigation on December 20, 1993. As
security for said undertaking, Bethel Grace Aoyagi entrusted to [Hernandez] her husband’s passport, receipt of which
[Hernandez], in return, acknowledge[d] in the same instrument.
"8. On January 19, 1994, [Hernandez] signified that the record of Aoyagi has been cleared and that he can pick up his
passport at the BID office. In connection therewith, [Hernandez] was invited by Perlas to make the return at a
lunchtime meeting to be held at the Diamond Hotel Coffee Shop. Upon arrival thereat, [Hernandez] gave the passport
to Atty. Acejas, Aoyagi’s counsel, and within less than ten minutes, he left the coffee shop." 18
In his Petition, Acejas narrates some more occurrences as follows:
"1. 18th December 1993 – The law firm of Lucenario Margate Mogpo Tiongco & Acejas was engaged by the
spouses Takao Aoyagi and Bethel Grace Pelingon Aoyagi. x x x.
xxx xxx xxx
"3. 22nd December 1993 –
"a) The managing partner of the law firm, Atty. Lucenario, briefed [Acejas] about the facts regarding
the confiscation by agents of the BID of the passport belonging to a Japanese client. x x x.
"b) Thereafter, [Acejas] was tasked by Atty. Lucenario to ‘meet his brother-in-law Mr. Expedito Perlas,
who happened to be a policeman and a friend of Mr. Takao Aoyagi.’ Thus, [Acejas] ‘met Mr. Perlas for
the first time in the afternoon’ of this date.
"c) Also, for the first time, [Acejas] met the clients, spouses Aoyagis, at the Diamond Hotel, where they
were staying. x x x [Acejas] advised them that the law firm decided that the clients ‘can file an action
for Replevin plus Damages for the recovery of the Japanese passport.’
"d) The CONTRACT FOR LEGAL SERVICES was signed between the client and the law firm, thru
[Acejas] as partner thereof. x x x The amount of Fifty Thousand Pesos (Php.50,000.00) was agreed to
be paid by way of ‘Case Retainer’s/Acceptance Fees’, which was supposed to be payable ‘upon (the)
signing (t)hereof’, and the sum of Php.2,000.00 by way of appearance fee. However, the client
proposed to pay half only of the acceptance fee (Php.25,000.00), plus the estimated judicial expenses
for the filing or docket fees (Php.15,000.00). x x x It was then further agreed that the ‘balance of
Php.25,000.00 was supposed to be given upon the successful recovery of the Japanese passport’.
"e) The clients informed [Acejas] that ‘they are supposed to leave for Davao the following day on the
23rd because they will spend their Christmas in Davao City; but they promised that they will be back
on the 26th, which is a Sunday, so that on the 27th, which is a Monday, the complaint against the BID
officers will have to be filed in Court’.
 xxx xxx xxx
"6. 27th December 1993 – ‘(T)he law office received word from Mr. Perlas that the Japanese did not come
back on the 26th (December), x x x so that the case cannot be filed on the 27th instead (it has) to wait for
client’s instruction.’
"7. 4th January 1994 – ‘In the late afternoon, the law firm received a telephone call from Mr. Perlas informing
(it) that the Japanese is already in Manila and he was requesting for an appointment with any of the lawyer of
the law firm on January 5, 1994’.
"8. 5th January 1994 – [Acejas] ‘met for the first time Mr. Filomeno Pelingon Jr.’ including a certain Nimoto
Akira.
x x x.
"b) [Acejas] ‘told Mr. Pelingon Jr. that all the pleadings are ready for filing but, of course, the Japanese
client and the wife should first read the complaint and sign if they want to pursue the filing of the
complaint against the BID agents’.
"c) For the first time, ‘Mr. Pelingon advised against the intended filing of the case’. x x x He ‘instead
suggested that he wants to directly negotiate with the BID agents.’
"d) Thereafter, ‘Mr. Pelingon instructed Mr. Dick Perlas to contact the BID agent who confiscated the
Japanese passport.’ ‘Mr. Perlas and Mr. Pelingon were able to contact the BID agent’.
"e) For the ‘first time [Acejas] saw Mr. Hernandez’, when the latter arrived and also accused Victor
Conanan. In the course of the meeting, a confrontation ensued between [Acejas] and [Hernandez]
concerning the legal basis for the confiscation of the passport. [Acejas] demanded for the return of the
Japanese passport x x x. Mr. Hernandez ‘said that if there are no further derogatory report concerning
the Japanese client, then in a matter of week (from January 5 to 12), he will return the passport’.
"f) [Acejas] ‘gave an ultimatum to Mr. Hernandez that if the Japanese passport will not be returned in
one (1) week’s time, then (the law firm) will pursue the filing of the replevin case plus the damage suit
against him including the other BID agents’.
"g) ‘x x x Mr. Pelingon Jr. for the second time advised against the filing thereof saying that his
Japanese brother-in-law would like to negotiate or in his own words ‘magbibigay naman [i.e. will give
money anyway].’
"9. 8th January 1994 –
"a) Again, ‘Mr. Perlas called the law office and informed x x x that the Japanese client is now in
Manila.’ Petitioner attended the meeting they arranged in ‘(Makati) and meet Dick Perlas, Vladimir
Hernandez and Pelingon Jr. x x x.
"b) x x x according to Pelingon Jr., the Japanese does not want to meet with anybody because
anyway they are willing to pay or negotiate.
"c) [Hernandez was also] present at the meeting and [Acejas] ‘met him for the second time. x x x
[Acejas] said that if [Hernandez] will not be able to return the passport on or before January 12, 1994,
then the law firm will have no choice but to file the case against him x x x. Again, for the third time Mr.
Pelingon warned against the filing of the case because he said that he would directly negotiate with
the BID agents.’
"d) The Makati meeting ended up ‘with the understanding that Mr. Hernandez will have to undertake
the return [of] the Japanese passport on or before January 12, 1994.’
"10. 12th January 1994 –
"a) Mr. Perlas called up the law office informing that the Japanese client was already in Manila and
was requesting for an appointment with the lawyers at lunchtime of January 12 at the Diamond Hotel
where he was billeted.
xxx xxx xxx
"c) x x x x x x x x x
"At this meeting, ‘the Japanese was inquiring on the status of the case and he was wondering why the
Japanese passport is not yet recovered when according to him he has already paid for the attorney
fees. And so, [Acejas] explained to him that the case has to be filed and they still have to sign the
complaint, the Special Power of Attorney and the affidavit relative to the filing of replevin case. But the
Japanese would not fully understand. So, Pelingon Jr. again advised against the filing of the case
saying that since there is no derogatory record of Mr. Aoyagi at the BID office, then the BID agents
should return the Japanese passport.’
xxx xxx xxx
 "e) Thereafter, ‘Pelingon, Jr. and Dick Perlas x x x tried to contact Mr. Hernandez.’ Since, they were
able to contact the latter, ‘we waited until around 2:00 p.m.’. ‘When Mr. Hernandez came, he said that
the Japanese client is cleared at the BID office and so, he can return the Japanese passport and he
gave it to [Acejas]. x x x ‘When [Acejas] received the Japanese passport, (he) checked the
authenticity of the documents and finding that it was in good order, (he) attempted to give it to the
Japanese client.’
"‘Very strangely when [Acejas] tried to hand-over the Japanese passport to the Japanese across the table, the
Japanese was motioning and wanted to get the passport under the table. x x x [Acejas] found it strange. (He) x x x
thought that it was a Japanese custom to receive things like that under the table. But nonetheless, [Acejas] did not
give it under the table and instead passed it on to Mr. Dick Perlas who was seated at (his) right. And so, it was Mr.
Dick Perlas who took the passport from [Acejas] and finally handed it over to Mr. Aoyagi.’ x x x. ‘After that, there was a
little chat between Mr. Hernandez and the client, and Mr. Hernandez did not stay for so long and left.’
"Still, thereafter, ‘(w)hen the Japanese passport was received, Bethel Grace Aoyagi and [Acejas] were talking and she
said since the Japanese passport had been recovered, they are now willing to pay the Php.25,000.00 balance of the
acceptance fee.’
"‘Mrs. Aoyagi was giving [Acejas] a brown envelope but she want[ed] Mr. Hernandez to receive it while Mr. Hernandez
was still around standing. But Mr. Hernandez did not receive it.
"Since, the payment is due to the law firm, [Acejas] received the brown envelope.
xxx xxx xxx
"Not long after, [Acejas] saw his companion, accused Mr. Victoriano, who was ‘signaling something’ as if there was a
sense of urgency. [Acejas] immediately stood up and left hurriedly. When [Acejas] approached Mr. Victoriano, he ‘said
that the car which [Acejas] parked in front of the Diamond Hotel gate, somebody took the car’. [Acejas] ‘went out and
checked and realized that it was valet parking so it was the parking attendant who took the car and transferred the car
to the parking area’. [Acejas] requested ‘Mr. Victoriano to get (the) envelope and the coat’, at the table.
"g) ‘When [Acejas] went out, [Acejas] already looked for the parking attendant to get the car. When the car arrived,
[Acejas] just saw from the doors of the Diamond Hotel Mr. Jose Victoriano and Mr. Dick Perlas coming out already in
handcuffs and collared by the NBI agents." They then ‘were taken to the NBI’, except the accused Vladimir
Hernandez."19
Ruling of the Sandiganbayan
The Sandiganbayan ruled that the elements of direct bribery, 20 as well as conspiracy in the commission of the
crime,21 had been proven. Hernandez and Conanan demanded money; 22 Perlas negotiated and dealt with the
complainants;23 and Acejas accepted the payoff and gave it to Perlas. 24
Victoriano was acquitted on reasonable doubt.25 Although he had picked up the envelope containing the payoff, this
act did not sufficiently show that he had conspired with the other accused. 26
The Sandiganbayan did not give credence to the alleged belief of Acejas that the money was the balance of the law
firm’s legal fees.27 If he had indeed believed that the money was payable to him, he should have kept and retained it.
The court then inferred that he had merely been pretending to protect his client’s rights when he threatened to file a
suit against Hernandez.28
The January 3, 2003 Resolution acquitted Conanan and denied the Motions for Reconsideration of Hernandez, Acejas
and Perlas. According to the Sandiganbayan, Conanan was not shown to be present during the meetings on January
8 and 12, 1994.29 His presence during one of those meetings, on January 5, 1994, did not conclusively show his
participation as a co-conspirator.
The January 14, 2003 Resolution denied Acejas’ Supplemental Motion, which prayed for a new trial.
The Issues
Petitioner Hernandez raises the following issues:
"I. Whether or not respondent court erred in ruling that [Hernandez] was part of the conspiracy to extort money
from private respondents, despite lack of clear and convincing evidence.
"II. Whether or not the Honorable Sandiganbayan gravely abused its discretion when it overlooked the fact
that the legal requisites of the crime are not completely present as to warrant [Hernandez’] complicity in the
crime charged.
"III. Whether or not respondent Sandiganbayan, 5th Division, ruled erroneously when it relied solely on the
naked and uncorroborated testimonies of the late Filomeno ‘Jun’ Pelingon, Jr. in order to declare the existence
of a conspiracy to commit bribery, as well as the guilt of the accused.
"IV. Whether or not [respondent] court’s acquittal of co-accused Victor Conanan and its conviction of
[Hernandez] for the offense as charged effectively belies the existence of a conspiracy.
 "V. Whether or not the respondent Sandiganbayan committed grave abuse of discretion amounting to lack of,
or in excess of jurisdiction when it found [Hernandez] guilty beyond reasonable doubt of the crime of direct
bribery."30
On the other hand, Petitioner Acejas simply enumerates the following points:
"1. The Conspiracy Theory
2. The presence of lawyer-client relationship; duty to client’s cause; lawful performance of duties
3. ‘Instigation’ not ‘entrapment’
4. Credibility of witness and testimony
5. Affidavit of desistance; effect: creates serious doubts as to the liability of the accused
6. Elements of ‘bad faith’
7. Elements of the crime (direct bribery)
8. Non-presentation of complaining victim tantamount to suppression of evidence" 31
In the main, petitioners are challenging the finding of guilt against them. The points they raised are therefore
intertwined and will be discussed jointly.
The Court’s Ruling
The Petitions have no merit.
Main Issue:
Finding of Guilt
The crime of direct bribery exists when a public officer 1)
agrees to perform an act that constitutes a crime in consideration of any offer, promise, gift or present; 2) accepts the
gift in consideration of the execution of an act that does not constitute a crime; or 3) abstains from the performance of
official duties.32
Petitioners were convicted under the second kind of direct bribery, which contained the following elements: 1) the
offender was a public officer, 2) who received the gifts or presents personally or through another, 3) in consideration of
an act that did not constitute a crime, and 4) that act related to the exercise of official duties. 33
Hernandez claims that the prosecution failed to show his involvement in the crime. Allegedly, he was merely
implementing Mission Order No. 93-04-12, which required him to investigate Takao Aoyagi. 34 The passport was
supposed to have been voluntarily given to him as a guarantee to appear at the BID office, but he returned it upon the
instruction of his superior.35
The chain of circumstances, however, contradicts the contention of Hernandez. It was he who had taken the passport
of Takao Aoyagi.36 On various dates,37 he met with Takao and Bethel Grace Aoyagi, and also Pelingon, regarding the
return of the passport. Hernandez then asked for a down payment on the payoff, 38 during which he directed Bethel
Grace to deliver the money to Acejas.39
Bethel Grace Aoyagi’s testimony, which was confirmed by the other witnesses, proceeded as follows:
"PROSECUTOR MONTEMAYOR:
"Q: When Vlademir Hernandez arrived, what happened?
"A: He got the passport from his pocket and passed it on to Atty. Acejas, sir.
"Q: What happened after he gave the passport to Atty. Acejas?
"A: [Acejas] gave the passport to Mr. Expedito Perlas, sir.
"Q: After that, what happened?
"A: Then, [Perlas] gave it to Mr. Aoyagi, sir.
"Q: The passport?
"A: Yes, sir.
"Q: And when Mr. Aoyagi received the passport, what did you do or what did Mr. Aoyagi do?
"A: He checked all the pages and he kept it, sir.
xxxxxxxxx
"Q: What did you do with that money after Mr. Aoyagi received the passport?
"A: Because our agreement is that after giving the passport we would give the money so when Mr. Perlas handed to
my husband the passport, I gave the money placed on my lap to my husband and he passed it to Mr. Hernandez who
refused the same.
"ATTY. ACEJAS:
"Your Honor, please, may I just make a clarification that when the witness referred to the money it pertains to the
brown envelope which allegedly contains the money x x x .
"AJ ESCAREAL:
"Noted.
"PROSECUTOR MONTEMAYOR:
"Q: Did Mr. Hernandez got hold or touched the envelope?
"A: No, sir.
"Q: When he [did] not want to receive the envelope, what did your husband do?
"A: When Mr. Vlademir Hernandez refused to receive the money, he pointed to Atty. Acejas so my husband handed it
to Atty. Acejas who received the same and later on passed it to Mr. Perlas.
"Q: When Mr. Hernandez pointed to Atty. Acejas, did he say anything?
"A: None, sir, he just motioned like this.
"INTERPRETER:
"Witness motioning by [waving] her two (2) hands, left and right.
"PROSECUTOR MONTEMAYOR:
"Q: And at the same time pointed to Atty. Acejas?
"A: Yes, sir.
"Q: And your husband gave the envelope to Atty. Acejas?
"A: Yes, sir.
"Q: And Atty. Acejas, in turn, handed the said envelope to whom?
"A: Expedito Perlas, sir.
"Q: Did Expedito Perlas [receive] that envelope?
"A: Yes, sir.
"Q: After that, what happened?
"A: Mr. Perlas put the money on his side in between him and Atty. Acejas, sir.
"Q: And then, what happened?
"A: After the money was placed where it was, we were surprised, I think, it happened in just seconds[.] Mr. Vlademir
Hernandez immediately left and then all of a sudden somebody came and picked up the envelope, sir." 40
Significantly, Hernandez does not address the lingering questions about why Takao Aoyagi or his representatives had
to negotiate for the retrieval of the passport during the meetings held outside the BID. Ponciano Ortiz, chief of the
Operation and Intelligence Division of the BID, testified that it was not a standard operating procedure to officially
return withheld passports in such locations.41 It can readily be inferred that Hernandez had an ulterior motive for
withholding the passport for some time despite the absence of any legal purpose.
Also, Hernandez cannot claim innocence based on Conanan’s acquittal. 42 While the testimony of Pelingon was the
only evidence linking Conanan to the conspiracy,43 there was an abundance of evidence showing Hernandez’s
involvement.
Acejas, on the other hand, belies his involvement in the conspiracy. He attacks the prosecution’s version that he was
silent during the negotiations for the return of the passport. 44 According to him, he kept giving Hernandez an ultimatum
to return the passport, with threats to file a court case.
Acejas testified that he had wanted to file a case against Hernandez, but was prevented by Spouses Aoyagi. His
supposed preparedness to file a case against Hernandez might have just been a charade and was in fact belied by
Pelingon’s testimony regarding the January 5, 1994 meeting:
"ATTY. VALMONTE:
"Q: Who arrived first at Aristocrat Restaurant, you or Acejas?
"A: Acejas arrived together with Dick Perlas[. T]hey arrived ahead of me, sir.
 xxxxxxxxx
"Q: When the three (3) of you were talking that was the time that Atty. Acejas was showing you documents that he was
going to file [a] P1 million damage suit against Hernandez?
"A: Yes, sir.
"Q: Now, is it not that when Hernandez and Cunanan arrived and you were talking with each other, Atty. Acejas also
threatened, reiterated his threat to Hernandez that he would file [a] P1 million damage suit should Hernandez [fails] to
return the passport?
"A: When the group [was] already there, the P1 million [damage suit] was not [anymore] mentioned, sir." 45
Even assuming that Acejas negotiated for the return of the passport on his client’s behalf, he still failed to justify his
actions during the entrapment operation. The witnesses all testified that he had received the purported payoff. On this
point, we recount the testimony of Bethel Grace Aoyagi:
"Prosecutor Montemayor:
xxxxxxxxx
"Q: When he [did] not want to receive the envelope, what did your husband do?
"A: When Mr. Vlademir Hernandez refused to receive the money, he pointed to Atty. Acejas so my husband handed it
to Atty. Acejas who received the same and later on passed it to Mr. Perlas.
"Q: When Mr. Hernandez pointed to Atty. Acejas, did he say anything?
"A: None, sir, he just motioned like this.
"Interpreter:
"Witness motioning by [waving] her two (2) hands, left and right.
"Prosecutor Montemayor:
"Q: And at the same time pointed to Atty. Acejas?
"A: Yes, sir.
"Q: And your husband gave the envelope to Atty. Acejas?
"A: Yes, sir.
"Q: And Atty. Acejas, in turn, handed the said envelope to whom?
"A: Expedito Perlas, sir.
"x x x x x x x x x
"Q: After that, what happened?
"A: Mr. Perlas put the money on his side in between him and Atty. Acejas, sir.
"Q: And then, what happened?
"WITNESS:
"A: After the money was placed where it was, we were surprised, I think, it happened in just seconds[.] Mr. Vladimir
Hernandez immediately left and then all of a sudden somebody came and picked up the envelope, sir.
"Prosecutor Montemayor:
"Q: Do you know the identity of that somebody who picked up the envelope?
xxxxxxxxx
46
"A: Victoriano, sir."
Acejas failed to justify why he received the payoff money. It would be illogical to sustain his contention that the
envelope represented the balance of his firm’s legal fees. That it was given to Hernandez immediately after the return
of the passport leads to the inescapable conclusion that the money was a consideration for the return. Moreover,
Acejas should have kept the amount if he believed it to be his. The Court agrees with the Sandiganbayan’s
pronouncement on this point:
"x x x. If he believed that the brown envelope contained the balance of the acceptance fee, how come he passed it to
Perlas? His passing the brown envelope to Perlas only proves that the same did not contain the balance of the
acceptance fee; otherwise, he should have kept and retained it. Moreover, the three prosecution witnesses testified
that the brown envelope was being given to Hernandez who refused to accept the same. This further shows that the
brown envelope was not for the balance of the acceptance fee because, if it were, why was it given to Hernandez.
xxxxxxxxx
"Acejas’ defense was further weakened by the fact that his testimony as to why he left immediately after the brown
envelope was given to him was uncorroborated. He should have presented accused Victoriano to corroborate his
testimony since it was the latter who allegedly called him and caused him to leave their table. This, he did not do. The
ineluctable conclusion is that he was, indeed, in cahoots with his co-accused." 47
Lawyer’s Duty
Acejas alleges that the Sandiganbayan failed to appreciate his lawyer-client relationship with the complainants. He
was supposedly only acting in their best interest48 and had the right to be present when the passport was to be
returned.49
True, as a lawyer, it was his duty to represent his clients in dealing with other people. His presence at Diamond Hotel
for the scheduled return of the passport was justified. This fact, however, does not support his innocence
Acejas, however, failed to act for or represent the interests of his clients. He knew of the payoff, but did nothing to
assist or protect their rights, a fact that strongly indicated that he was to get a share. Thus, he received the money
purporting to be the payoff,
even if he was not involved in the entrapment operation. The facts revealed that he was a conspirator.
The Court reminds lawyers to follow legal ethics50 when confronted by public officers who extort money. Lawyers must
decline and report the matter to the authorities.51 If the extortion is directed at the client, they must advise the client not
to perform any illegal act. Moreover, they must report it to the authorities, without having to violate the attorney-client
privilege.52 Naturally, they must not participate in the illegal act. 53
Acejas did not follow these guidelines. Worse, he conspired with the extortionists.
Instigation
Also futile is the contention of petitioners that Pelingon instigated the situation to frame them into accepting the
payoff.54 Instigation is the employment of ways and means to lure persons into the commission of an offense in order
to prosecute them.55 As opposed to entrapment, criminal intent originates in the mind of the instigator. 56
There was no instigation in the present case, because the chain of circumstances showed an extortion attempt. In
other words, the criminal intent originated from petitioners, who had arranged for the payoff.
During the cross-examination of Bethel Grace Aoyagi, pertinent was Associate Justice Escareal clarifying question as
follows:
"AJ ESCAREAL:
"[Q:] Did Mr. Hernandez say anything when he returned the passport to your husband?
"A: He did not say anything except that he instructed [the] group to abide with the agreement that upon handing of the
passport, the money would also be given immediately (‘magkaliwaan’)." 57
Alleged Discrepancies
According to Acejas, Pelingon’s testimonies given in his Complaint-Affidavit, Supplemental-Affidavit, inquest testimony,
testimony in court, and two Affidavits of Desistance were contradictory. 58 He cites these particular portions of
Pelingon’s Affidavit:
"5. That having been enlightened of the case, and conscious that I might be prosecuting innocent men, I have decided
on my own disposition, not to further testify against any of the accused in the Sandiganbayan or in any court or
tribunal, regarding the same cause of action.
"6. That this affidavit of desistance to further prosecute is voluntarily executed, and that no reward, promise,
consideration, influence, force or threat was executed to secure this affidavit." 59
Pelingon testified that he had executed the Affidavit of Desistance because of a threat to his life. 60 He did not prepare
the Affidavit; neither was it explained to him. Allegedly, his true testimony was in the first Complaint-Affidavit that he
had executed.61
By appearing and testifying during the trial, he effectively repudiated his Affidavit of Desistance. An affidavit of
desistance must be ignored when pitted against positive evidence given on the witness stand. 62
Acejas has failed to identify the other material points that were allegedly inconsistent. The Court therefore adopts the
Sandiganbayan’s finding that these were minor details that were not indicative of the lack of credibility of the
prosecution witnesses.63 People v. Eligino64 is in point:
"x x x. While witnesses may differ in their recollections of an incident, it does not necessarily follow from their
disagreement that all of them should be disbelieved as liars and their testimony completely discarded as worthless. As
long as the mass of testimony jibes on material points, the slight clashing statements neither dilute the witnesses’
credibility nor the veracity of their testimony. Thus, inconsistencies and contradictions referring to minor details do not,
in any way, destroy the credibility of witnesses, for indeed, such inconsistencies are but natural and even enhance
credibility as these discrepancies indicate that the responses are honest and unrehearsed." 65
Suppression of Evidence
Acejas further raises the issue of suppression of evidence. Aoyagi, from whom the money was supposedly demanded,
should have been presented by the prosecution as a witness. 66
The discretion on whom to present as prosecution witnesses falls on the People. 67 The freedom to devise a strategy to
convict the accused belongs to the prosecution.68 Necessarily, its decision on which evidence, including which
witnesses, to present cannot be dictated by the accused or even by the trial court. 69 If petitioners believed that Takao
Aoyagi’s testimony was important to their case, they should have presented him as their witness. 70
Finally, Acejas claims that his Comment/Objection to the prosecution’s Formal Offer of Evidence was not resolved by
the Sandiganbayan.71 In that Comment/Objection, he had noted the lateness in the filing of the Formal Offer of
Evidence.
It may readily be assumed that the Sandiganbayan admitted the prosecution’s Formal Offer of Evidence upon the
promulgation of its Decision. In effect, Acejas’ Comment/Objection was deemed immaterial. It could not overrule the
finding of guilt. Further, it showed no prayer that the Sandiganbayan needed to act upon. 72
Finally we reiterate that, as a rule, factual findings of the Sandiganbayan are conclusive upon this Court. 73 We are
convinced that these were clearly based on the evidence adduced in this case.
In sum, we find that the prosecution proved the elements of direct bribery. First, there is no question that the offense
was committed by a public officer. BID Agent Hernandez extorted money from the Aoyagi spouses for the return of the
passport and the promise of assistance in procuring a visa. Petitioner Acejas was his co-conspirator. Second, the
offenders received the money as payoff, which Acejas received for the group and then gave to Perlas. Third, the
money was given in consideration of the return of the passport, an act that did not constitute a crime. Fourth, both the
confiscation and the return of the passport were made in the exercise of official duties.
For taking direct part in the execution of the crime, Hernandez and Acejas are liable as principals. 74 The evidence
shows that the
parties conspired to extort money from Spouses Aoyagi. A conspiracy exists even if all the parties did not commit the
same act, if the participants performed specific acts that indicated unity of purpose in accomplishing a criminal
design.75 The act of one is the act of all.
WHEREFORE, the Petitions are DENIED, and the assailed Decision and Resolutions AFFIRMED. Costs against
petitioners.
SO ORDERED.
JESUS TORRES vs. PEOPLE OF THE PHILIPPINES
G.R. No. 175074 August 31, 2011
PERALTA, J.:
This is a petition for review on certiorari seeking to reverse and set aside the Resolution 1 dated September 6, 2006
and Resolution dated October 17, 20062 of the Court of Appeals (CA) in CA-G.R. CR No. 29694.
The factual and procedural antecedents are as follows:
In an Information3 dated November 15, 1994, petitioner Jesus U. Torres was charged with the crime of Malversation of
Public Funds before the Regional Trial Court (RTC), Branch 42, Virac, Catanduanes, the accusatory portion of which
reads:
That on or about the 27th day of April 1994, or sometime subsequent thereto, in the Municipality of Virac,
Catanduanes, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, a public
officer, being then the Principal of Viga Rural Development High School, Viga, Catanduanes, and as such by reason of
his office and duties is responsible and accountable for public funds entrusted to and received by him, to wit: PNB
Checks (sic) Nos. C-983182-Q for ₱42,033.32; C-983183-Q for ₱95,680.89; C-983184-Q for ₱58,940.33, all dated
April 26, 1994 in the total amount of ONE HUNDRED NINETY-SIX THOUSAND SIX HUNDRED FIFTY-FOUR PESOS
and FIFTY-FOUR CENSTAVOS (₱196,654.54), Philippine Currency, representing salaries, salary differentials,
additional compensation allowance and Personal Emergency Relief Allowance from January to March 1994 of the
employees of the said school, taking advantage of his position and committing the offense in relation to his office,
encashed said checks with the Philippine National Bank, Virac, Catanduanes Branch and once in possession of the
money, did then and there willfully, unlawfully and feloniously and with grave abuse of confidence, misapply,
misappropriate, embezzle and convert to his personal use and benefit the aforementioned amount of money, to the
damage and prejudice of the Government.
Contrary to law.
Upon his arraignment, petitioner pleaded not guilty to the crime charged. Consequently, trial on the merits ensued.
Evidence for the Prosecution
[Petitioner] Jesus Torres y Uchi was the principal of Viga Rural Development High School (VRDHS). On April 26,
1994, he directed Edmundo Lazado, the school’s collection and disbursing officer, to prepare the checks representing
the teachers’ and employees’ salaries, salary differentials, additional compensation allowance (ACA) and personal
emergency relief allowance (PERA) for the months of January to March, 1994. Lazado prepared three (3) checks in
the total amount of ₱196,654.54, all dated April 26, 1994, viz: PNB Check Nos. C-983182-Q for ₱42,033.32; C-
983183-Q for ₱95,680.89; C-983184-Q for ₱58,940.33 (Exhs. "A", "B" and "C"). The [petitioner] and Amador Borre,
Head Teacher III, signed the three (3) checks (TSN, Aug. 30, 2001, pp. 4-8).
Upon the instruction of the [petitioner], Lazado endorsed the checks and handed them to the accused. It was the
custom in the school for Lazado to endorse the checks representing the teachers’ salaries and for the accused to
encash them at PNB, Virac Branch and deliver the cash to Lazado for distribution to the teachers (Id., pp. 12-17).
The following day, April 27, 1994, the accused encashed the three (3) checks at PNB, Virac Branch but he never
returned to the school to deliver the money to Lazado (Id., pp. 8-9). 4
Evidence for the Defense
The [petitioner] admitted that he encashed the subject checks at PNB, Virac Branch in the morning of April 27, 1994
but instead of going back to the school, he proceeded to the airport and availed of the flight to Manila to seek medical
attention for his chest pain. Two (2) days after, around 4:30 o’clock in the morning of April 29, 1994, while he and his
nephew were on the road waiting for a ride, three (3) armed men held them up and took his bag containing his
personal effects and the proceeds of the subject checks. He reported the incident to the police authorities, but he
failed to recover the money (TSN, Nov. 12, 2002, pp. 11-25). 5
On August 31, 2005, after finding that the prosecution has established all the elements of the offense charged, the
RTC rendered a Decision6 convicting petitioner of the crime of Malversation of Public Funds, the decretal portion of
which reads:
WHEREFORE, the Court finds the accused Jesus Torres y Uchi GUILTY beyond reasonable doubt of the crime of
malversation of public funds as defined and penalized under Article 217 of the Revised Penal Code, and hereby
sentences him to suffer the indeterminate penalty of imprisonment ranging from 12 years and 1 day of reclusion
temporal, as minimum, and to 18 years, 8 months and 1 day of reclusion temporal, as maximum; to suffer the penalty
of perpetual special disqualification; and to pay the fine of ₱196,654.54 with subsidiary imprisonment in case of
insolvency.
SO ORDERED.7
On September 8, 2005, petitioner filed his Notice of Appeal, 8 where it was indicated that he was seeking recourse and
appealing the decision of the RTC before the Court of Appeals.
On February 10, 2006, petitioner filed a Manifestation and Motion 9 acknowledging that he filed the appeal before the
wrong tribunal. Petitioner eventually prayed, among other things, that the case be referred to the Sandiganbayan for
appropriate action.
In its Comment10 filed on June 29, 2006, the Office of the Solicitor General prayed that the appeal be dismissed
outright, since transmittal to the proper court, in cases of erroneous modes of appeal, are proscribed.
On September 6, 2006, the CA issued a Resolution dismissing the appeal, the dispositive portion of which reads:
WHEREFORE, pursuant to the provisions of Section 2, Rule 50 of the Rules and Section 4 of SC Circular No. 2-90,
the instant appeal hereby is DISMISSED OUTRIGHT for lack of jurisdiction.
SO ORDERED.11
Petitioner filed a Motion for Reconsideration,12 but was denied in the Resolution13 dated October 17, 2006.
Hence, the petition raising the sole error:
Whether the honorable court of appeals erred in dismissing the petitioner’s appeal outright instead of certifying the
case to the proper court.14
Petitioner maintains that he inadvertently filed the notice of appeal before the Court of Appeals instead of the
Sandiganbayan. Petitioner implores that the Court exercise its sound discretion and prerogative to relax compliance to
sound procedural rules and to decide the case on the merits, considering that from the beginning, he has been candid
and straightforward about the fact that the case was wrongfully filed with the Court of Appeals instead of the
Sandiganbayan.
The petition is without merit.
Paragraph 3, Section 4 (c) of Republic Act No. 8249 (RA 8249), 15 which defined the jurisdiction of the Sandiganbayan,
provides:
The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or orders of the
regional trial courts whether in the exercise of their own original jurisdiction or of their appellate jurisdiction as herein
provided.16
Hence, upon his conviction, petitioner’s remedy should have been an appeal to the Sandiganbayan. There is nothing
in said paragraph which can conceivably justify the filing of petitioner’s appeal before the Court of Appeals instead of
the Sandiganbayan. Clearly, the Court of Appeals is bereft of any jurisdiction to review the judgment petitioner seeks
to appeal.17
It must be emphasized, however, that the designation of the wrong court does not necessarily affect the validity of the
notice of appeal. However, the designation of the proper court should be made within the 15-day period to appeal.
Once made within the said period, the designation of the correct appellate court may be allowed even if the records of
the case are forwarded to the Court of Appeals. Otherwise, Section 2, Rule 50 of the Rules of Court would apply, 18 the
relevant portion of which states:
Sec. 2. Dismissal of improper appeal to the Court of Appeals. – x x x
An appeal erroneously taken to the Court of Appeals shall not be transferred to the appropriate court, but shall be
dismissed outright.19
In the case at bar, petitioner sought correction of the error in filing the appeal way beyond the expiration of the period
to appeal the decision. The RTC promulgated its Decision on August 31, 2005. Petitioner filed his Notice of Appeal on
September 8, 2005. Petitioner tried to correct the error only on February 10, 2006 when he filed his Manifestation and
Motion. Clearly, this is beyond the 15-day period to appeal from the decision of the trial court. Therefore, the CA did
not commit any reversible error when it dismissed petitioner’s appeal for lack of jurisdiction.
Besides, even if we look into the merits of his arguments, the case is doomed to fail. Contrary to petitioner’s argument,
We find that he is an accountable officer within the contemplation of Article 217 20 of the Revised Penal Code, hence, is
untenable.
An accountable public officer, within the purview of Article 217 of the Revised Penal Code, is one who has custody or
control of public funds or property by reason of the duties of his office. 21 The nature of the duties of the public officer or
employee, the fact that as part of his duties he received public money for which he is bound to account and failed to
account for it, is the factor which determines whether or not malversation is committed by the accused public officer or
employee. Hence, a school principal of a public high school, such as petitioner, may be held guilty of malversation if
he or she is entrusted with public funds and misappropriates the same.1avvphi1
Petitioner also posits that he could not be convicted under the allegations in the Information without violating his
constitutional right to be informed of the accusations against him. He maintains that the Information clearly charged
him with intentional malversation and not malversation through negligence, which was the actual nature of
malversation for which he was convicted by the trial court. This too lacks merit.
Malversation may be committed either through a positive act of misappropriation of public funds or property, or
passively through negligence.22 To sustain a charge of malversation, there must either be criminal intent or criminal
negligence, and while the prevailing facts of a case may not show that deceit attended the commission of the offense,
it will not preclude the reception of evidence to prove the existence of negligence because both are equally
punishable under Article 217 of the Revised Penal Code.23
More in point, the felony involves breach of public trust, and whether it is committed through deceit or negligence, the
law makes it punishable and prescribes a uniform penalty therefor. Even when the Information charges willful
malversation, conviction for malversation through negligence may still be adjudged if the evidence ultimately proves
the mode of commission of the offense.24 Explicitly stated –
x x x [E]ven on the putative assumption that the evidence against petitioner yielded a case of malversation by
negligence, but the information was for intentional malversation, under the circumstances of this case, his conviction
under the first mode of misappropriation would still be in order. Malversation is committed either intentionally or by
negligence. The dolo or the culpa present in the offense is only a modality in the perpetration of the felony. Even if the
mode charged differs from mode proved, the same offense of malversation is involved and conviction thereof is
proper. x x x25
WHEREFORE, premises considered, the petition is DENIED. The Resolutions dated September 6, 2006 and October
17, 2006 of the Court of Appeals in CA-G.R. CR No. 29694 are AFFIRMED.
SO ORDERED.
MAJOR JOEL G. CANTOS vs. PEOPLE OF THE PHILIPPINES
G.R. No. 184908 July 3, 2013
VILLARAMA, JR., J.:
Petitioner Major Joel G. Cantos appeals the Decision1 of the Sandiganbayan in Criminal Case No. SB-07-A/R-0008,
which affirmed with modification the judgment2 of the Regional Trial Court (RTC) of Manila, Branch 47, convicting him
of the crime of Malversation of Public Funds under Article 217 of the Revised Penal Code, as amended.
In an Information3 dated February 19, 2003, Major Cantos was charged as follows:
That on or about December 21, 2002 or sometime prior or subsequent thereto, in the City of Manila, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, a public officer, being then the Commanding
Officer of the 22"d Finance Service Center, based in the Presidential Security Group, Malacañang Park, Manila and as
such is accountable for public funds received and/or entrusted to him by reason of his office, acting in relation to his
office and taking advantage of the same, did then and there, willfully, unlawfully and feloniously take, misappropriate
and convert to his personal use and benefit the amount of THREE MILLION TWO HUNDRED SEVENTY THOUSAND
PESOS (₱3,270,000.00), Philippine Currency, from such public funds received by him by reason of his Office to the
damage and prejudice of the Government in the aforestated amount. CONTRARY TO LAW.
Upon motion by the prosecution, the trial court issued an Order 4 granting the amendment of the date of the
commission of the offense from December 21, 2002 to December 21, 2000, the error being merely clerical. When
arraigned, Major Cantos entered a plea of not guilty. 5
At the trial, the prosecution presented as witness Major Eligio T. Balao, Jr. 6 He testified that on December 21, 2000, he
reported for duty as Disbursing Officer at the 22nd Finance Service Unit (FSU), Presidential Security Group (PSG),
Malacañang Park, Manila. At that time, he did not notice any unusual incident in the office. He picked up some Bureau
of Internal Revenue (BIR) forms which he filed with the BIR Office at the Port Area, Manila. He returned to the office at
around 10:00 a.m. At around 12:00 noon, his commanding officer, Major Cantos, called him to his office and informed
him that the money he (Major Cantos) was handling, the Special Duty Allowance for the month of December, and
other Maintenance Operating Expenses in the amount of more or less ₱3 Million was missing from his custody.
Shocked, he asked Major Cantos where he kept the money, to which the latter replied that he placed it in the steel
cabinet inside his room. He then inquired why Major Cantos did not use the safety vault, but Major Cantos did not
reply.7
Major Balao further testified that Major Cantos asked him to get a screwdriver so he went out of the office and got one
from his vehicle. He gave the screwdriver to Major Cantos, who used it to unscrew the safety vault. Then, he left the
office and handed the screwdriver to Sgt. Tumabcao.
After a few minutes, Major Cantos instructed him to go to the house of Major Conrado Mendoza in Taguig to get the
safety vault’s combination number. However, Major Mendoza was not around. When he returned to the office at
around 4:00 p.m., the National Bureau of Investigation (NBI) personnel took his fingerprints. He learned that all the
personnel of the 22nd FSU were subjected to fingerprinting. Thereafter, Col. Espinelli tried to force him to admit that
he took the money, but he maintained that he was not the one who took it. 8
In his defense, Major Cantos testified that on July 2000, he was assigned as the Commanding Officer of the 22nd FSU
of the PSG, Malacañang Park, Manila. His duty was to supervise the disbursement of funds for the PSG personnel
and to perform other finance duties as requested by the PSG Commander, Gen. Rodolfo Diaz. On December 19,
2000, he received a check from Director Aguas in the amount of ₱1,975,000 representing the Special Allowance of
PSG personnel. Accompanied by two personnel, he went to the Land Bank branch just across Pasig River and
encashed the check. He placed the money in a duffel bag and kept it inside the steel cabinet in his office together with
the ₱1,295,000 that was earlier also entrusted to him by Gen. Diaz. Major Cantos added that as far as he knows, he is
the only one with the keys to his office. Although there was a safety vault in his office, he opted to place the money
inside the steel cabinet because he was allegedly previously informed by his predecessor, Major Conrado Mendoza,
that the safety vault was defective. He was also aware that all personnel of the 22nd FSU had unrestricted access to
his office during office hours.9
Major Cantos also narrated that on December 20, 2000, he arrived at the office at around 9:00 a.m. and checked the
steel filing cabinet. He saw that the money was still there. He left the office at around 4:00 p.m. to celebrate with his
wife because it was their wedding anniversary. On the following day, December 21, 2000, he reported for work around
8:30 a.m. and proceeded with his task of signing vouchers and documents. Between 9:00 a.m. to 10:00 a.m., he
inspected the steel cabinet and discovered that the duffel bag which contained the money was missing. He
immediately called then Capt. Balao to his office and asked if the latter saw someone enter the room. Capt. Balao
replied that he noticed a person going inside the room, but advised him not to worry because he is bonded as
Disbursing Officer.10
In a state of panic, Major Cantos asked for Capt. Balao’s help in finding the money. Capt. Balao asked him how the
money was lost and why was it not in the vault, to which he replied that he could not put it there because the vault was
defective. Capt. Balao then suggested that they should make it appear that the money was lost in the safety vault. In
pursuit of this plan, Capt. Balao went out of the office and returned with a pair of pliers and a screwdriver. Upon his
return, Capt. Balao went directly to the vault to unscrew it. At this point, Major Cantos told him not to continue anymore
as he will just inform Gen. Diaz about the missing funds. Major Cantos was able to contact Gen. Diaz through his
mobile phone and was advised to just wait for Col. Espinelli. When Col. Espinelli arrived at the office, Col. Espinelli
conducted an investigation of the incident.11
Lt. Col. Al I. Perreras, Executive Officer of the Judge Advocate General Office (JAGO), likewise conducted an
investigation of the incident. His testimony was however dispensed with as the counsels stipulated that he prepared
the Investigation Report, and that if presented, the same would be admitted by defense counsel. 12 It likewise appears
from the evidence that Police Inspector Jesus S. Bacani of the Philippine National Police (PNP) administered a
polygraph examination on Major Cantos and the result showed that he was telling the truth. 13
On April 27, 2007, the RTC rendered a decision convicting Major Cantos of the crime charged, to wit:
WHEREFORE, in view of the foregoing premises, the Court finds the accused Major Joel G. Cantos GUILTY beyond
reasonable doubt of the crime of Malversation of Public Funds, under paragraph 4 of Article 217 of the Revised Penal
Code, and, there being no mitigating or aggravating circumstance present, hereby sentences him to an indeterminate
penalty of imprisonment for a period of ten (10) years and one (1) day of Prision Mayor, as minimum, to Eighteen (18)
Years, eight (8) months and one (1) day of Reclusion Temporal, as maximum; to reimburse the AFP Finance Service
Center, Presidential Security Group, Armed Forces of the Philippines the amount of Three Million Two Hundred
Seventy Thousand Pesos (₱3,270,000.00); to pay a fine of Three Million Two Hundred Seventy Thousand Pesos
(₱3,270,000.00); to suffer perpetual special disqualification from holding any public office; and to pay the costs.
SO ORDERED.14
In rendering a judgment of conviction, the RTC explained that although there was no direct proof that Major Cantos
appropriated the money for his own benefit, Article 217 of the Revised Penal Code, as amended, provides that the
failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon
demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to
personal uses. The RTC concluded that Major Cantos failed to rebut this presumption.
Aggrieved, Major Cantos appealed to the Sandiganbayan questioning his conviction by the trial court.
On July 31, 2008, the Sandiganbayan promulgated the assailed Decision, the dispositive portion of which reads as
follows:
IN VIEW OF THE FOREGOING, the Decision promulgated on May 3, 2007 in Criminal Case No. 03-212248 of the
Regional Trial Court, National Capital Judicial Region, Branch 47, Manila finding the accused-appellant Major Joel G.
Cantos GUILTY beyond reasonable doubt of the crime of Malversation of Public Funds under Article 217 of the
Revised Penal Code is hereby AFFIRMED, with the modification that instead of being convicted of malversation
through negligence, the Court hereby convicts the accused of malversation through misappropriation. The penalty
imposed by the lower court is also likewise AFFIRMED. SO ORDERED.15
The Sandiganbayan sustained the ruling of the RTC. It held that in the crime of malversation, all that is necessary for
conviction is proof that the accountable officer had received public funds and that he did not have them in his
possession when demand therefor was made. There is even no need of direct evidence of personal misappropriation
as long as there is a shortage in his account and petitioner cannot satisfactorily explain the same. In this case, the
Sandiganbayan found petitioner liable for malversation through misappropriation because he failed to dispute the
presumption against him. The Sandiganbayan noted that petitioner’s claim that the money was taken by robbery or
theft has not been supported by sufficient evidence, and is at most, self-serving.
Contending that the Sandiganbayan Decision erred in affirming his convicting, Major Cantos filed a motion for
reconsideration. In its Resolution16 dated October 6, 2008, however, the Sandiganbayan denied the motion.
Hence, the present petition for review on certiorari. Petitioner assails the Decision of the Sandiganbayan based on the
following grounds:
I. THE HONORABLE SANDIGANBAYAN ERRED IN AFFIRMING PETITIONER'S CONVICTION FOR
MALVERSATION DESPITE ABSENCE OF EVIDENCE SHOWING THAT THE FUNDS WERE CONVERTED TO THE
PERSONAL USE OF PETITIONER.
II. THE HONORABLE SANDIGANBAYAN ERRED IN AFFIRMING PETITIONER'S CONVICTION ON THE BASIS OF
THE MERE PRESUMPTION CREATED BY ARTICLE 217, PARAGRAPH 4, OF THE REVISED PENAL CODE IN
VIEW OF THE ATTENDANT CIRCUMSTANCES IN THE PRESENT CASE.17
Essentially, the basic issue for our resolution is: Did the Sandiganbayan err in finding petitioner guilty beyond
reasonable doubt of the crime of malversation of public funds?
Petitioner argues that mere absence of funds is not sufficient proof of misappropriation which would warrant his
conviction. He stresses that the prosecution has the burden of establishing his guilt beyond reasonable doubt. In this
case, petitioner contends that the prosecution failed to prove that he appropriated, took, or misappropriated, or that he
consented or, through abandonment or negligence, permitted another person to take the public funds.
On the other hand, the People, represented by the Office of the Special Prosecutor (OSP), argues that petitioner, as
an accountable officer, may be convicted of malversation of public funds even if there is no direct evidence of
misappropriation. The OSP asserts that the only evidence required is that there is a shortage in the officer’s account
which he has not been able to explain satisfactorily.
The petition must fail.
The Sandiganbayan did not commit a reversible error in its decision convicting petitioner of malversation of public
funds, which is defined and penalized under Article 217 of the Revised Penal Code, as amended, as follows:
Art. 217. Malversation of public funds or property. – Presumption of malversation. – Any public officer who, by reason
of the duties of his office, is accountable for public funds or property, shall appropriate the same, or shall take or
misappropriate or shall consent, or through abandonment or negligence, shall permit any other person to take such
public funds or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such
funds or property shall suffer:
xxxx
4. The penalty of reclusion temporal in its medium and maximum periods, if the amount involved is more than twelve
thousand pesos but is less than twenty-two thousand pesos. If the amount exceeds the latter, the penalty shall be
reclusion temporal in its maximum period to reclusion perpetua.
In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and a fine
equal to the amount of the funds malversed or equal to the total value of the property embezzled.
The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon
demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to
personal use. (Emphasis and underscoring supplied.)
Thus, the elements of malversation of public funds under Article 217 of the Revised Penal Code are:
1. that the offender is a public officer;
2. that he had the custody or control of funds or property by reason of the duties of his office;
3. that those funds or property were public funds or property for which he was accountable; and
4. that he appropriated, took, misappropriated or consented or, through abandonment or negligence,
permitted another person to take them.18
We note that all the above-mentioned elements are here present. Petitioner was a public officer occupying the position
of Commanding Officer of the 22nd FSU of the AFP Finance Center, PSG. By reason of his position, he was tasked to
supervise the disbursement of the Special Duty Allowances and other Maintenance Operating Funds of the PSG
personnel, which are indubitably public funds for which he was accountable. Petitioner in fact admitted in his testimony
that he had complete control and custody of these funds. As to the element of misappropriation, indeed petitioner
failed to rebut the legal presumption that he had misappropriated the fees to his personal use.
In convicting petitioner, the Sandiganbayan cites the presumption in Article 217 of the Revised Penal Code, as
amended, which states that the failure of a public officer to have duly forthcoming any public funds or property with
which he is chargeable, upon demand by any duly authorized officer, is prima facie evidence that he has put such
missing fund or property to personal uses. The presumption is, of course, rebuttable. Accordingly, if petitioner is able
to present adequate evidence that can nullify any likelihood that he put the funds or property to personal use, then that
presumption would be at an end and the prima facie case is effectively negated.
In this case, however, petitioner failed to overcome this prima facie evidence of guilt.1âwphi1 He failed to explain the
missing funds in his account and to restitute the amount upon demand. His claim that the money was taken by
robbery or theft is self-serving and has not been supported by evidence. In fact, petitioner even tried to unscrew the
safety vault to make it appear that the money was forcibly taken. Moreover, petitioner’s explanation that there is a
possibility that the money was taken by another is belied by the fact that there was no sign that the steel cabinet was
forcibly opened. We also take note of the fact that it was only petitioner who had the keys to the steel cabinet. 19Thus,
the explanation set forth by petitioner is unsatisfactory and does not overcome the presumption that he has put the
missing funds to personal use.
Malversation is committed either intentionally or by negligence. The dolo or the culpa present in the offense is only a
modality in the perpetration of the felony. Even if the mode charged differs from the mode proved, the same offense of
malversation is involved and conviction thereof is proper.20 All that is necessary for conviction is sufficient proof that
the accountable officer had received public funds, that he did not have them in his possession when demand therefor
was made, and that he could not satisfactorily explain his failure to do so. Direct evidence of personal
misappropriation by the accused is hardly necessary as long as the accused cannot explain satisfactorily the shortage
in his accounts.21 To our mind, the evidence in this case is thoroughly inconsistent with petitioner's claim of innocence.
Thus, we sustain the Sandiganbayan's finding that petitioner's guilt has been proven beyond reasonable doubt.
WHEREFORE, the petition is DENIED. The Decision dated July 31, 2008 of the Sandiganbayan in Criminal Case No.
SB-07-A/R-0008 convicting Major Joel G. Cantos of the crime of Malversation of Public Funds is AFFIRMED and
UPHELD.
With costs against the petitioner. SO ORDERED.
ARNOLD JAMES M. YSIDORO vs. PEOPLE OF THE PHILIPPINES
G.R. No. 192330 November 14, 2012
ABAD, J.:
This case is about a municipal mayor charged with illegal diversion of food intended for those suffering from
malnutrition to the beneficiaries of reconsideration projects affecting the homes of victims of calamities.
The Facts and the Case
The Office of the Ombudsman for the Visayas accused Arnold James M. Ysidoro before the Sandiganbayan in
Criminal Case 28228 of violation of illegal use of public propertry (technical malversation) under Article 220 of the
Revised Penal Code.1
The facts show that the Municipal Social Welfare and Development Office (MSWDO) of Leyte, Leyte, operated a Core
Shelter Assistance Program (CSAP) that provided construction materials to indigent calamity victims with which to
rebuild their homes. The beneficiaries provided the labor needed for construction.
On June 15, 2001 when construction for calamity victims in Sitio Luy-a, Barangay Tinugtogan, was 70% done, the
beneficiaries stopped reporting for work for the reason that they had to find food for their families. This worried Lolita
Garcia (Garcia), the CSAP Officer-in-Charge, for such construction stoppage could result in the loss of construction
materials particularly the cement. Thus, she sought the help of Cristina Polinio (Polinio), an officer of the MSWDO in
charge of the municipality’s Supplemental Feeding Program (SFP) that rationed food to malnourished children. Polinio
told Garcia that the SFP still had sacks of rice and boxes of sardines in its storeroom. And since she had already
distributed food to the mother volunteers, what remained could be given to the CSAP beneficiaries.
Garcia and Polinio went to petitioner Arnold James M. Ysidoro, the Leyte Municipal Mayor, to seek his approval. After
explaining the situation to him, Ysidoro approved the release and signed the withdrawal slip for four sacks of rice and
two boxes of sardines worth P3,396.00 to CSAP.2 Mayor Ysidoro instructed Garcia and Polinio, however, to consult the
accounting department regarding the matter. On being consulted, Eldelissa Elises, the supervising clerk of the
Municipal Accountant’s Office, signed the withdrawal slip based on her view that it was an emergency situation
justifying the release of the goods. Subsequently, CSAP delivered those goods to its beneficiaries. Afterwards, Garcia
reported the matter to the MSWDO and to the municipal auditor as per auditing rules.
On August 27, 2001 Alfredo Doller, former member of the Sangguniang Bayan of Leyte, filed the present complaint
against Ysidoro. Nierna Doller, Alfredo's wife and former MSWDO head, testified that the subject SFP goods were
intended for its target beneficiaries, Leyte’s malnourished children. She also pointed out that the Supplemental
Feeding Implementation Guidelines for Local Government Units governed the distribution of SFP goods. 3 Thus,
Ysidoro committed technical malversation when he approved the distribution of SFP goods to the CSAP beneficiaries.
In his defense, Ysidoro claims that the diversion of the subject goods to a project also meant for the poor of the
municipality was valid since they came from the savings of the SFP and the Calamity Fund. Ysidoro also claims good
faith, believing that the municipality’s poor CSAP beneficiaries were also in urgent need of food. Furthermore, Ysidoro
pointed out that the COA Municipal Auditor conducted a comprehensive audit of their municipality in 2001 and found
nothing irregular in its transactions.
On February 8, 2010 the Sandiganbayan found Ysidoro guilty beyond reasonable doubt of technical malversation. But,
since his action caused no damage or embarrassment to public service, it only fined him P1,698.00 or 50% of the sum
misapplied. The Sandiganbayan held that Ysidoro applied public property to a pubic purpose other than that for which
it has been appropriated by law or ordinance. On May 12, 2010 the Sandiganbayan denied Ysidoro’s motion for
reconsideration. On June 8, 2010 Ysidoro appealed the Sandiganbayan Decision to this Court.
The Questions Presented
In essence, Ysidoro questions the Sandiganbayan’s finding that he committed technical malversation. He particularly
raises the following questions:
1. Whether or not he approved the diversion of the subject goods to a public purpose different from their
originally intended purpose;
2. Whether or not the goods he approved for diversion were in the nature of savings that could be used to
augment the other authorized expenditures of the municipality;
3. Whether or not his failure to present the municipal auditor can be taken against him; and
4. Whether or not good faith is a valid defense for technical malversation.
The Court’s Rulings
One. The crime of technical malversation as penalized under Article 220 of the Revised Penal Code 4 has three
elements: a) that the offender is an accountable public officer; b) that he applies public funds or property under his
administration to some public use; and c) that the public use for which such funds or property were applied is different
from the purpose for which they were originally appropriated by law or ordinance. 5 Ysidoro claims that he could not be
held liable for the offense under its third element because the four sacks of rice and two boxes of sardines he gave the
CSAP beneficiaries were not appropriated by law or ordinance for a specific purpose.
But the evidence shows that on November 8, 2000 the Sangguniang Bayan of Leyte enacted Resolution 00-133
appropriating the annual general fund for 2001.6 This appropriation was based on the executive budget 7 which
allocated P100,000.00 for the SFP and P113,957.64 for the Comprehensive and Integrated Delivery of Social
Services8 which covers the CSAP housing projects.9 The creation of the two items shows the Sanggunian’s intention to
appropriate separate funds for SFP and the CSAP in the annual budget.
Since the municipality bought the subject goods using SFP funds, then those goods should be used for SFP’s needs,
observing the rules prescribed for identifying the qualified beneficiaries of its feeding programs. The target clientele of
the SFP according to its manual10 are: 1) the moderately and severely underweight pre-school children aged 36
months to 72 months; and 2) the families of six members whose total monthly income is P3,675.00 and below. 11 This
rule provides assurance that the SFP would cater only to the malnourished among its people who are in urgent need
of the government’s limited resources.
Ysidoro disregarded the guidelines when he approved the distribution of the goods to those providing free labor for the
rebuilding of their own homes. This is technical malversation. If Ysidoro could not legally distribute the construction
materials appropriated for the CSAP housing beneficiaries to the SFP malnourished clients neither could he distribute
the food intended for the latter to CSAP beneficiaries.
Two. Ysidoro claims that the subject goods already constituted savings of the SFP and that, therefore, the same could
already be diverted to the CSAP beneficiaries. He relies on Abdulla v. People 12 which states that funds classified as
savings are not considered appropriated by law or ordinance and can be used for other public purposes. The Court
cannot accept Ysidoro’s argument.
The subject goods could not be regarded as savings. The SFP is a continuing program that ran throughout the year.
Consequently, no one could say in mid-June 2001 that SFP had already finished its project, leaving funds or goods
that it no longer needed. The fact that Polinio had already distributed the food items needed by the SFP beneficiaries
for the second quarter of 2001 does not mean that the remaining food items in its storeroom constituted unneeded
savings. Since the requirements of hungry mouths are hard to predict to the last sack of rice or can of sardines, the
view that the subject goods were no longer needed for the remainder of the year was quite premature.
In any case, the Local Government Code provides that an ordinance has to be enacted to validly apply funds, already
appropriated for a determined public purpose, to some other purpose. Thus:
SEC. 336. Use of Appropriated Funds and Savings. – Funds shall be available exclusively for the specific purpose for
which they have been appropriated. No ordinance shall be passed authorizing any transfer of appropriations from one
item to another. However, the local chief executive or the presiding officer of the sanggunian concerned may, by
ordinance, be authorized to augment any item in the approved annual budget for their respective offices from savings
in other items within the same expense class of their respective appropriations.
The power of the purse is vested in the local legislative body. By requiring an ordinance, the law gives the Sanggunian
the power to determine whether savings have accrued and to authorize the augmentation of other items on the budget
with those savings.
Three. Ysidoro claims that, since the municipal auditor found nothing irregular in the diversion of the subject goods,
such finding should be respected. The SB ruled, however, that since Ysidoro failed to present the municipal auditor at
the trial, the presumption is that his testimony would have been adverse if produced. Ysidoro argues that this goes
against the rule on the presumption of innocence and the presumption of regularity in the performance of official
functions.
Ysidoro may be right in that there is no basis for assuming that had the municipal auditor testified, his testimony would
have been adverse to the mayor. The municipal auditor’s view regarding the transaction is not conclusive to the case
and will not necessarily negate the mayor’s liability if it happened to be favorable to him. The Court will not, therefore,
be drawn into speculations regarding what the municipal auditor would have said had he appeared and testified.
Four. Ysidoro insists that he acted in good faith since, first, the idea of using the SFP goods for the CSAP beneficiaries
came, not from him, but from Garcia and Polinio; and, second, he consulted the accounting department if the goods
could be distributed to those beneficiaries. Having no criminal intent, he argues that he cannot be convicted of the
crime.1âwphi1
But criminal intent is not an element of technical malversation. The law punishes the act of diverting public property
earmarked by law or ordinance for a particular public purpose to another public purpose. The offense is mala
prohibita, meaning that the prohibited act is not inherently immoral but becomes a criminal offense because positive
law forbids its commission based on considerations of public policy, order, and convenience. 13 It is the commission of
an act as defined by the law, and not the character or effect thereof, that determines whether or not the provision has
been violated. Hence, malice or criminal intent is completely irrelevant. 14
Dura lex sed lex. Ysidoro’s act, no matter how noble or miniscule the amount diverted, constitutes the crime of
technical malversation. The law and this Court, however, recognize that his offense is not grave, warranting a mere
fine.
WHEREFORE, this Court AFFIRMS in its entirely the assailed Decision of the Sandiganbayan in Criminal Case 28228
dated February 8, 2010. SO ORDERED.
ALOYSIUS DAIT LUMAUIG vs. PEOPLE OF THE PHILIPPINES
G.R. No.166680 July 7, 2014
DEL CASTILLO, J.:
A prior notice or demand for liquidation of cash advances is not a condition sine qua non before an accountable public
officer may be held liable under Article 2181 of the Revised Penal Code.
Before us is a Petition for Review on Certiorari filed under Rule 45 of the Rules of Court of the September 10, 2004
Decision2 of the Sandiganbayan in Criminal Case No. 26528 and its January 11, 2005 Resolution 3 denying
reconsideration thereof.
The Information4 dated January 25, 2001 under which petitioner Aloysius Dait Lumauig (petitioner) was tried and
convicted has this accusatory portion:
That in or about August 1994 or immediately prior or subsequent thereto, in Alfonso Lista, Ifugao and within the
jurisdiction of this Honorable Court, the above-named accused then Municipal Mayorof Alfonso Lista, Ifugao, and as
such accountable public officer, and responsible for the amount of ₱101,736.00 which the accused received by way of
cashadvance for payment of the insurance coverage of the twelve (12) motorcycle[s] purchased by the Municipality,
and, hence with the corresponding duty under the law to account for the same, did then and there, willfully and
feloniously fail to liquidate and account for the same to the damage and prejudice of the Government. 5
The facts are matters of recordor otherwise undisputed.
Sometime in January 1998, Commission on Audit (COA) Auditor Florence L. Paguirigan examined the year-end
reports involving the municipal officials of Alfonso Lista, Ifugao. During the courseof her examination of the records
and related documents of the municipality, she came across a disbursement voucher 6 for ₱101,736.00 prepared for
petitioner, a former mayor of the municipality, as cash advance for the payment of freight and other cargo charges for
12 units of motorcycles supposed to be donated to the municipality. The amount was covered by Land Bank Check
No. 118942007 dated August 29, 1994 wherein the payee is petitioner. Her further investigation of the accounting
records revealed that no payment intended for the charge was made to Royal Cargo Agencies for the month of August
1994. Thus, she issued a certification8 to this effect on November 29, 2001. She likewise claimed that she prepared
two letters to inform the petitioner of his unliquidated cash advance but the same were not sent to him because she
could not get his exact address despite efforts exerted. She averred that on June 4, 2001, petitioner paid the subject
cash advance before the treasurer of the municipality, for which reason, incumbent Mayor Glenn D. Prudenciano
executed an Affidavit of Desistance.9
Petitioner admitted having obtained the cash advance of ₱101,736.00 during his incumbency as municipal mayor of
Alfonso Lista, Ifugao.10 This amount was intended for the payment of freight and insurance coverage of 12 units of
motorcycles to bedonated to the municipality by the City of Manila. However, instead of motorcycles, he was able to
secure two buses and five patrol cars. He claimed that it never came to his mind to settle or liquidate the amount
advanced since the vehicles were already turned over to the municipality. He alleged that he was neither informed nor
did he receive any demand from COA to liquidate his cash advances. It was only in 2001 while he was claiming for
separation pay when he came to know that he still has an unliquidated cash advance. And so as not toprolong the
issue, he paidthe amount of ₱101,736.00 to the municipal treasurer on June 4, 2001.
From the same facts stemmed an Information for violation of Section 3 of Republic Act (RA) No. 3019 11 docketed as
CriminalCase No. 26527 against petitioner for having allegedly utilized the cash advance for a purpose other than for
which it was obtained.
On September 10, 2004, after a joint trial, the Sandiganbayanrendered a consolidated Decision 12 disposing thusly:
WHEREFORE, premises consideredthe Court rules as follows:
1. In Criminal Case No. 26527, accused ALOYSIUS DAIT LUMAUIG is hereby ACQUITTED. No civil liability
shall be imposed there being no basis for its award. The cash bondposted for his provisional liberty is ordered
returned to him, subject to the usual accounting and auditing procedure; and
2. In Criminal Case No. 26528, accused ALOYSIUS DAIT LUMAUIG is hereby CONVICTED of the felony of
Failure of Accountable Officer to Render Accounts under Article 218 of the Revised Penal Code. He is hereby
sentenced to a straight penalty of six months and one (1) day and a fine of Php1,000.00.
SO ORDERED.13
On January 11, 2005, the Sandiganbayanpromulgated its Resolution 14 denying petitioner’s UrgentMotion for
Reconsideration.15
Hence, this Petition.
After a thorough review of the records of the case and a judicious consideration of the arguments of the petitioner, the
Court does not find sufficient basis to reverse the judgment of conviction. From the prevailing facts, we entertain no
doubt on the guilt of petitioner.
The acquittal of petitioner in the anti-
graft case is not a bar to his conviction
for failure to render an account in the
present case.
Petitioner stakes the present Petition on the assertion that since the cases for which he was indicted involve the same
subject cash advance in the amount of ₱101,736.00, his exoneration in the anti-graft case should likewise exculpate
him from further liability in the present case.
We are not persuaded.
It is undisputed that the two charges stemmed from the same incident. "However, [we have] consistently held thatthe
same act may give rise to two or more separate and distinct charges." 16 Further, because there is a variance between
the elements of the two offenses charged, petitioner cannot safely assume that his innocence in one case will extend
to the other case even if both cases hinge on the same set of evidence.
To hold a person criminally liable under Section 3(e)of RA 3019, the following elements must be present:
(1) That the accused is a public officer or a private person charged in conspiracy with the former;
(2) That said public officer commitsthe prohibited acts during the performance of his or her official duties or in
relation to his or her public positions;
(3) That he or she causes undue injury toany party, whether the government or a private party;
(4) That such injury is caused by giving unwarranted benefits, advantage or preference to such parties; and
(5) That the public officer has acted withmanifest partiality, evident bad faith or gross inexcusable
negligence.17
On the other hand, the elements of the felony punishable under Article 218 of the Revised Penal Code are:
(1) That the offender is a public officer whether in the service or separated therefrom;
(2) That he must be an accountable officer for public funds or property;
(3) That he is required by law or regulation to render accounts to the COA or to a provincial auditor; and,
(4) That he fails to do so for a period oftwo months after such account should be rendered. 18
The glaring differences between the elements of these two offenses necessarily imply that the requisite evidence to
establish the guilt or innocence of the accused would certainly differ in each case. Hence, petitioner’s acquittal in the
anti-graft case provides no refuge for him inthe present case given the differences between the elements ofthe two
offenses.
Prior demand to liquidate is not a
requisite for conviction under Article
218 of the Revised Penal Code.
The central aspect of petitioner’s next argument is that he was not reminded of his unliquidated cash advances. The
Office of the Special Prosecutor countered that Article 218 does not require the COA orthe provincial auditor to first
make a demand before the public officer should render an account. It is sufficient that there is a law or regulation
requiring him to render an account. The question has been settled in Manlangit v. Sandiganbayan 19 where we ruled
that prior demand to liquidate is not necessary to hold an accountable officer liable for violation of Article 218 of the
Revised Penal Code:
x x x [W]e are asked to resolve whether demand is necessary for a conviction of a violation of Article 218 of the
Revised Penal Code.
Citing United States v. Saberon, petitioner contends that Article 218 punishes the refusal of a public employee to
render an account of funds in his charge when duly required by a competent officer. He argues that he cannot be
convicted of the crime unless the prosecution has proven that there was a demand for him to render an account.
Petitioner asserts that COA Circular No. 90-331 provides that the public officer shall be criminally liable for failure to
settle his accounts after demand had been made. Moreover, petitioner asserts that the case had become moot and
academic since he already submitted his liquidation report.
For the People, the Office of the Special Prosecutor (OSP) counters that demand is not an element of the offense and
that it is sufficient that there is a law or regulation requiring the public officer to render an account. The OSP insists
that Executive Order No. 292, Presidential Decree No. 1445, the COA Laws and Regulations, and even the
Constitution mandate that public officers render an account of funds in their charge. It maintains that the instant case
differs from Saberonwhich involved a violation of Act No. 1740 where prior demand was required. In this case
involving a violation of Article 218, prior demand is not required. Moreover, the OSP points out that petitioner even
admitted his failure to liquidate the funds within the prescribed period, hence, he should be convicted of the crime.
We shall now resolve the issue at hand.
Article 218 consists ofthe following elements:
1. that the offender is a public officer, whether in the service or separated therefrom;
2. that he must be an accountable officer for public funds or property;
3. that he is required by law or regulation to render accounts to the Commission on Audit, or to a provincial
auditor; and
 4. that he fails to do so for a period of two months after such accounts should be rendered. Nowhere in the
provision does it require that there first be a demand before an accountable officer is held liable for a violation
of the crime. The law is very clear. Where none is provided, the court may not introduce exceptions or
conditions, neither may it engraft into the law qualifications not contemplated. Where the law is clear and
unambiguous, it must be taken to mean exactly what it says and the court has no choice but to see to it that its
mandate is obeyed. There is no room for interpretation, but only application.
Petitioner’s reliance on Saberonis misplaced. As correctly pointed out by the OSP, Saberoninvolved a violation of Act
No. 1740 whereas the present case involves a violation of Article 218 of the Revised Penal Code. Article 218 merely
provides that the public officer berequired by law and regulation to render account. Statutory construction tells us that
in the revision or codification of laws, all parts and provisions of the old laws that are omitted in the revised statute or
code are deemed repealed, unless the statute or code provides otherwise. 20
Petitioner is liable for violation of Article 218 of the Revised Penal Code.
Section 5 of COA Circular No. 90-331, the circular in force at the time petitioner availed of the subject cash advance,
pertinently provides:
5. LIQUIDATION OFCASH ADVANCES
5.1 The AO (Accountable Officer) shall liquidate his cash advance as follows:
xxxx
5.1.2 Petty Operating Expenses and Field Operating Expenses - within 20 days after the end of the year; subject to
replenishment during the year.
Since petitioner received the subject cash advance sometime in 1994, he was, thus, required to liquidate the same on
or before January 20, 1995. Further, to avoid liability under Article 218, he should have liquidated the cash advance
within two months from the time it was due, or on or before March 20, 1995. In the case at bar, petitioner liquidated the
subject cash advance only on June 4, 2001. Hence, as correctly found by the Sandiganbayan,petitioner was liable for
violation of Article 218 because it took him over six years before settling his accounts.
The penalty imposed on petitioner should be modified.
Petitioner argues that assuming that he is liable for violation of Article 218, he should be meted a lesser penalty
considering that (1) he subsequently liquidated the subject cash advance when he later discovered and was
confronted with his delinquency, and (2) the COA did not immediately inform him of his unliquidated cash advance.
On this point, we partially agree with petitioner.
In sentencing petitioner to a straight penalty of six months and one day of prisión correccionaland a fine of ₱1,000.00,
the Sandiganbayan correctly considered the mitigating circumstance of voluntary surrender, as borne by the
records,21 in favor of petitioner.However, it failed toconsider the mitigating circumstance of return or full restitution of
the funds that were previously unliquidated.
In malversation of public funds, the payment, indemnification, or reimbursement of the funds misappropriated may be
considered a mitigating circumstance being analogousto voluntary surrender. 22 Although this case does not involve
malversation ofpublic funds under Article 217 of the Revised Penal Code but rather failure to render an account under
Article 218 (i.e., the succeeding Article found in the same Chapter), the same reasoning may be applied to the return
or full restitution ofthe funds that were previously unliquidated in considering the same as a mitigating circumstance in
favor of petitioner.
The prescribed penalty for violation of Article 218 is prisión correccionalin its minimum period or six months and one
day to two years and four months, or by a fine ranging from 200to 6,000 pesos, orboth. Considering that there are two
mitigating circumstances and there are no aggravating circumstances, under Article 64 (5) 23 of the Revised Penal
Code, the imposable penalty is the penalty next lower to the prescribed penalty which, in this case, is arresto mayorin
its maximum period or four months and one day to six months.1âwphi1
The Indeterminate Sentence Law, under Section 2,24 is not applicable to, among others, cases where the maximum
term of imprisonment does not exceed one year. In determining "whether an indeterminate sentence and not a straight
penalty is proper, what is considered is the penalty actually imposed by the trial court, after considering the attendant
circumstances, and not the imposable penalty." 25 In the case at bar, since the maximum of the imposable penalty is six
months, then the possible maximum term that can be actually imposed is surely less than one year. Hence, the
Indeterminate Sentence Law is notapplicable to the present case. As a result, and in view of the attendant
circumstances in this case, we deem it proper to impose a straight penalty of four months and one day of arresto
mayorand delete the imposition of fine.
WHEREFORE, the Petition is GRANTED IN PART. The Decision of the Sandiganbayanin Criminal Case No. 26528
dated September 10, 2004 convicting petitioner of the felony of Failure of Accountable Officer to Render Accounts
under Article 218 of the Revised Penal Code is AFFIRMEDwith the following MODIFICATIONS:
1. Petitioner is sentenced to a straight penalty of four months and one day of arresto mayor, and 2. The imposition of
finein the amount of ₱1,000.00 is deleted. SO ORDERED.
HENRY GO vs. 5th DIVISION, SANDIGANBAYAN and OFFICE OF THE SPECIAL PROSECUTOR, OFFICE OF THE
OMBUDSMAN
G.R. No. 172602 April 13, 2007
CALLEJO, SR., J.:
Before the Court is the petition for certiorari under Rules 65 of the Rules of Court filed by Henry T. Go seeking to nullify
the Resolution dated December 6, 2005 of the Sandiganbayan in Criminal Case No. 28092, entitled People of the
Philippines vs. Vicente C. Rivera, Jr. and Henry T. Go, which denied his motion to quash. Likewise sought to be
nullified is the Sandiganbayan Resolution of March 24, 2006 denying petitioner Go’s motion for reconsideration.
The factual and procedural antecedents of the case are as follows:
On May 5, 2003, this Court rendered the Decision in Agan, Jr. v. Philippine International Air Terminals Co., Inc.
(PIATCO),1 declaring as null and void the 1997 Concession Agreement, the Amended and Restated Concession
Agreement (ARCA), and the Supplemental Contracts entered into between the Government, through the Department
of Transportation and Communications (DOTC) and the Manila International Airport Authority (MIAA), and PIATCO.
By the aforementioned contracts (collectively known as the PIATCO contracts), the Government awarded in favor of
PIATCO the project for the development of the Ninoy Aquino International Airport Passenger Terminal III (NAIA IPT III)
under a build-operate-and-transfer (BOT) scheme pursuant to Republic Act (RA) No. 6957 as amended by RA 7718
(BOT Law).2
The Court ruled that Paircargo Consortium, PIATCO’s predecessor-in-interest, was not a qualified bidder as it failed to
meet the financial capability requirement under the BOT Law. Moreover, the PIATCO contracts were declared null and
void for being contrary to public policy. The penultimate paragraph of the Court’s Decision states thus:
CONCLUSION
In sum, this Court rules that in view of the absence of the requisite financial capacity of the Paircargo Consortium,
predecessor of respondent PIATCO, the award by the PBAC of the contract for the construction, operation and
maintenance of the NAIA IPT III is null and void. Further, considering that the 1997 Concession Agreement contains
material and substantial amendments, which amendments had the effect of converting the 1997 Concession
Agreement into an entirely different agreement from the contract bidded upon, the 1997 Concession Agreement is
similarly null and void for being contrary to public policy. The provisions under Section 4.04(b) and (c) in relation to
Section 1.06 of the 1997 Concession Agreement and Section 4.04(c) in relation to Section 1.06 of the ARCA, which
constitute a direct government guarantee expressly prohibited by, among others, the BOT Law and its Implementing
Rules and Regulations are also null and void. The Supplements, being accessory contracts to the ARCA, are likewise
null and void.3
Subsequently, an affidavit-complaint, later amended, was filed with the Office of the Ombudsman by Ma. Cecilia L.
Pesayco, Corporate Secretary of Asia’s Emerging Dragon Corporation (AEDC), charging several persons in
connection with the NAIA IPT III project. The AEDC was the original proponent thereof which, however, lost to PIATCO
when it failed to match the latter’s bid price.
After conducting a preliminary investigation thereon, the Office of the Ombudsman filed with the Sandiganbayan the
Information dated January 13, 2005 charging Vicente C. Rivera, as then DOTC Secretary, and petitioner Go, as
Chairman and President of PIATCO, with violation of Section 3(g) 4 of RA 3019, also known as the Anti-Graft and
Corrupt Practices Act. The case was docketed as Criminal Case No. 28092, entitled People of the Philippines vs.
Vicente C. Rivera, Jr. and Henry T. Go. The Information reads:
I N F O R MATI O N
The undersigned Graft Investigation and Prosecution Officer II, Office of the Deputy Ombudsman for Luzon, accuses
VICENTE C. RIVERA, JR. and HENRY T. GO with Violation of Sec. 3 (g), R.A. No. 3019 committed as follows:
On or about November 26, 1998, or sometime prior or subsequent thereto, in Quezon City, Philippines and within the
jurisdiction of this Honorable Court, the accused VICENTE C. RIVERA, JR., Secretary of the Department of
Transportation and Communications (DOTC), committing the offense in relation to his office and taking advantage of
the same, in conspiracy with accused HENRY T. GO, Chairman and President of the Philippine International Air
Terminals, Co., Inc. (PIATCO), did then and there, willfully, unlawfully and feloniously enter into an Amended and
Restated Concession Agreement (ARCA), after the project for the construction of the Ninoy Aquino International
Passenger Terminal III (NAIA IPT III) was awarded to Paircargo Consortium/PIATCO, which ARCA substantially
amended the draft Concession Agreement covering the construction of the NAIA IPT III under Republic Act 6957 as
amended by Republic Act 7718 (BOT Law) providing that the government shall assume the liabilities of PIATCO in the
event of the latter’s default specifically Article IV, Section 4.04 (c) in relation to Article I, Section 1.06 of the ARCA
which term is more beneficial to PIATCO and in violation of the BOT law, and manifestly and grossly disadvantageous
to the government of the Republic of the Philippines.
CONTRARY TO LAW.5
On February 11, 2005, petitioner Go posted a cash bond for his provisional liberty.
On February 15, 2005, the Sandiganbayan issued a Hold Departure Order against Rivera and petitioner Go.
On March 28, 2005, petitioner Go was arraigned and entered a plea of "not guilty."
On May 26, 2005, Rivera filed a Motion for Judicial Determination (or Re-Determination) of Probable Cause and
Motion to Dismiss. The Sandiganbayan gave petitioner Go a period of ten (10) days within which to file a comment
thereon.
On June 20, 2005, petitioner Go filed his Comment with Motion to Quash. Adopting the view advanced by Rivera,
petitioner Go harped on the alleged "missing documents," including Pesayco’s amended affidavit-complaint and those
others that were mentioned in the resolution of the Office of the Deputy Ombudsman finding probable cause against
Rivera and petitioner Go, but which were not allegedly in the records. Petitioner Go maintained that apart from the
bare allegations contained in Pesayco’s affidavit-complaint, there was no supporting evidence for the finding of the
existence of probable cause against him and Rivera. Petitioner Go further alleged that he could not be charged under
Section 3(g) of RA 3019 because he is not a public officer and neither is he capacitated to enter into a contract or
transaction on behalf of the government. At least one of the important elements of the crime under Section 3(g) of RA
3019 is not allegedly present in his case.
On June 21, 2005, petitioner Go filed a Manifestation with Motion to Substitute the Comment with Motion to Quash,
which the prosecution, through the Office of the Ombudsman, opposed.
On December 6, 2005, the Sandiganbayan issued the assailed Resolution denying Rivera’s Motion for Judicial
Determination (Re-Determination) of Probable Cause and Motion to Dismiss and petitioner Go’s Motion to Quash.
The Sandiganbayan ruled that, contrary to the prosecution’s submission, it could still entertain petitioner Go’s Motion
to Quash even after his arraignment considering that it was based on the ground that the facts charged do not
constitute an offense. Nonetheless, the Sandiganbayan denied petitioner Go’s Motion to Quash holding that, contrary
to his claim, the allegations in the Information actually make out the offense charged. More particularly, the allegations
that accused Rivera, as DOTC Secretary, in conspiracy with petitioner Go, entered into the ARCA with petitioner
Go/PIATCO, which agreement was manifestly and grossly disadvantageous to the government, are constitutive of the
elements of the offense charged as defined under Section 3(g) of RA 3019.
The Sandiganbayan explained that petitioner Go’s contentions that he is not a public officer, he did not conspire with
Rivera in the execution of the ARCA and, in any case, the said agreement cannot be said to be manifestly and grossly
disadvantageous to the government, could not be properly considered for the purpose of quashing the Information on
the ground relied upon by him. According to the Sandiganbayan, these matters raised by petitioner Go have to be
proved during trial.
The decretal portion of the assailed Sandiganbayan Resolution reads:
WHEREFORE, in light of the foregoing, the "Motion for Determination (Re-Determination) of Probable Cause and
Motion to Dismiss" and the "Motion to Quash," filed by accused Vicente C. Rivera, Jr. and Henry T. Go, respectively,
are hereby DENIED.
SO ORDERED.6
Petitioner Go filed a motion for reconsideration thereof but it was denied by the Sandiganbayan in the Resolution
dated March 24, 2006.
Petitioner Go now seeks recourse to the Court and, in support of his petitioner, alleges that:
A. The Honorable Sandiganbayan committed grave abuse of discretion amounting to lack or excess of jurisdiction in
not ruling that Section 3(g) does not embrace a private person within its proviso.
B. The Honorable Sandiganbayan committed grave abuse of discretion amounting to lack or excess of jurisdiction in
not ruling that there is no probable cause to hold petitioner for trial. 7
Petitioner Go contends that Section 3(g) of RA 3019, by its text, cannot be extended or even enlarged by implication
or intendment to bring within its limited scope private persons. The said provision of law allegedly punishes only public
officers as it penalizes the act of "entering, on behalf of the government, into any contract or transaction manifestly
and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby." As a private
person, he could not allegedly enter into a contract "on behalf of the government," there being no showing of any
agency relations or special authority for him to act for and on behalf of the government.
Citing several cases,8 petitioner Go enumerates the following elements of Section 3(g) of RA 3019:
(1) that the accused is a public officer;
(2) that he entered into a contract or transaction on behalf of the government; and
(3) that such contract or transaction is grossly and manifestly disadvantageous to the government.
He also cites Marcos v. Sandiganbayan9 where the Court acquitted then First Lady Imelda R. Marcos of the charge of
violation of Section 3(g) of RA 3019 as it found that she did not sign the subject Lease Agreement, entered into
between the Light Railway Transit Authority (LRTA) and Philippine General Hospital Foundation, Inc. (PGHFI), as a
public officer, but in her capacity as Chairman of the PGHFI, a private entity. As such, the Court held that the first
element of the offense charged, i.e., that the accused is a public officer, was wanting.
Petitioner Go claims that, in the same manner, the first element of the offense charged against him is absent because
he is not a public officer who is authorized by law to bind the government through the act of "entering into a contract."
He also points out that, similar to his case, in Marcos, the Information also alleged that the former First Lady conspired
with a public officer, then Minister Jose P. Dans of the Ministry of Transportation and Communications, in entering into
a contract. Nonetheless, the Court therein dismissed the allegation of conspiracy.
Petitioner Go maintains that by any of its definition, 10 he cannot be considered a "public officer." Further, only a public
officer can enter into a
contract in representation of the government. He stresses that the first element of the offense, i.e., that the accused is
a public officer, is an essential ingredient of the crime under Section 3(g) of RA 3019. He likens it to the crime of
parricide where the essential element is the relationship of the offender to the victim and, citing a criminal law book
author, a stranger who cooperates in the execution of the offense is not allegedly guilty of this crime. The stranger is
allegedly either liable for homicide or murder but never by "conspiracy to commit parricide." 11
By parity of reasoning, according to petitioner Go, the first essential element of the crime penalized under Section 3(g)
of RA 3019 is that the offender must be a public officer. Since he is not a public officer, one of the essential elements
of the offense is lacking; hence, there is no other recourse but to quash the Information.
Section 9 of RA 3019 was also cited which reads:
SEC. 9. Penalties for violation. –
(a) Any public officer or private person committing any of the unlawful acts or omissions enumerated in Sections 3, 4,
5, and 6 of this Act shall be punished with imprisonment for not less than six years and one month or fifteen years,
perpetual disqualification from public office, and confiscation or forfeiture in favor of the Government of any prohibited
interest and unexplained wealth manifestly out of proportion to his salary and other lawful income.
xxx
Petitioner Go posits that had it been the intention of the lawmakers to penalize private persons who supposedly
"conspired" with public officers in violation of Sections 3, 4, 5 and 6 of RA 3019, it could have easily used the
conjunctive "and," not "or," between the terms "public officer" and "private person" in Section 9 thereof.
Petitioner Go takes exception to the Sandiganbayan’s pronouncement that even as a private individual he is not
excluded from the coverage of Section 3(g) of RA 3019 because he is not being accused singly but as someone who
conspired with a public officer in violating the said law. According to petitioner Go, this proposition applies only to
Section 3(e)12 of RA 3019, the elements of which include that "the accused are public officers or private persons
charged in conspiracy with them."13 He stresses that, unlike Section 3(e) of RA 3019, Section 3(g) thereof penalizes
only public officers as the operative phrase in the latter provision is "on behalf of the government."
Petitioner Go vigorously asserts that there is no basis for the finding of probable cause against him for violation of
Section 3(g) of RA 3019. In particular, he insists that the allegation of conspiracy between Rivera and himself is not
supported by any evidence. He makes an issue out of those documents that were mentioned in the resolution of the
Deputy Ombudsman finding probable cause against him but were not in the records of the Sandiganbayan. His mere
signing of the ARCA does not allegedly establish culpability for violation of RA 3019. Further, he faults the
Sandiganbayan for invoking the doctrine of non-interference by the courts in the determination by the Ombudsman of
the existence of probable cause. It is petitioner Go’s view that the Sandiganbayan should have ordered the quashal of
the Information for palpable want of probable cause coupled with the absence of material documents.
The petition is bereft of merit.
For clarity, Section 3(g) of RA 3019 is quoted below anew:
SEC. 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:
xxx
(g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to
the same, whether or not the public officer profited or will profit thereby.
As earlier mentioned, the elements of this offense are as follows:
(1) that the accused is a public officer;
(2) that he entered into a contract or transaction on behalf of the government; and
(3) that such contract or transaction is grossly and manifestly disadvantageous to the government. 14
Contrary to the contention of petitioner Go, however, the fact that he is not a public officer does not necessarily take
him out of the ambit of Section 3(g) of RA 3019. Petitioner Go’s simplistic syllogism, i.e., he is not a public officer ergo
he cannot be charged with violation of Section 3(g) of RA 3019, goes against the letter and spirit of the avowed policy
of RA 3019 as embodied in Section 1 thereof:
SEC. 1. Statement of policy. - It is the policy of the Philippine Government, in line with the principle that a public office
is a public trust, to repress certain acts of public officers and private persons alike which constitute graft or corrupt
practices or which may lead thereto.
As early as in 1970, through the erudite Justice J.B.L. Reyes in Luciano v. Estrella, 15 the Court had ascertained the
scope of Section 3(g) of RA 3019 as applying to both public officers and private persons:
x x x [T]he act treated thereunder [referring to Section 3(g) of RA 3019] partakes the nature of malum prohibitum; it is
the commission of that act as defined by law, not the character or effect thereof, that determines whether or not the
provision has been violated. And this construction would be in consonance with the announced purpose for which
Republic Act 3019 was enacted, which is the repression of certain acts of public officers and private persons
constituting graft or corrupt practices act or which may lead thereto. 16
Like in the present case, the Information in the said case charged both public officers and private persons with
violation of Section 3(g) of RA 3019.
Section 9 of RA 3019 buttresses the conclusion that the anti-graft law’s application extends to both public officers and
private persons. The said provision, quoted earlier, provides in part that:
SEC. 9. (a) Any public officer or private person committing any of the unlawful acts or omissions enumerated in
Sections 3, 4, 5 and 6 of this Act shall be punished with imprisonment for not less than six years and one month nor
more than fifteen years, perpetual disqualification from public office, and confiscation or forfeiture in favor of the
Government of any prohibited interest and unexplained wealth manifestly out of proportion to his salary and other
lawful income.
xxx
The fact that one of the elements of Section 3(g) of RA 3019 is "that the accused is a public officer" does not
necessarily preclude its application to private persons who, like petitioner Go, are being charged with conspiring with
public officers in the commission of the offense thereunder.
The case of Singian, Jr. v. Sandiganbayan17 is instructive. In the said case, Gregorio Singian, Jr., a private person who
was then Executive Vice-President of Integrated Shoe, Inc. (ISI), together with some officers of the Philippine National
Bank (PNB), was charged with violation of Section 3(e) and (g) of RA 3019 in connection with the loan
accommodations that the said bank extended to ISI which were characterized as behest loans.
A total of eighteen Informations were filed against Singian and his co-accused by the Office of the Ombudsman before
the Sandiganbayan corresponding to the nine loan accommodations granted to ISI. Each loan was subject of two
Informations alleging violations of both Section 3(e) and (g), respectively. In other words, nine Informations charged
Singian and his co-accused with violation of Section 3(e) of RA 3019 and the other nine charged them with violation of
paragraph (g) of the same provision.
Singian filed with the Sandiganbayan a motion for re-determination of existence of probable cause but the same was
dismissed. He then filed with the Court a petition for certiorari but it was likewise dismissed as the Court held that the
Ombudsman and the Sandiganbayan had not committed grave abuse of discretion when they respectively found
probable cause against Singian for violations of both paragraphs (e) and (g) of Section 3 of RA 3019.
Singian thus illustrates that private persons, like petitioner Go, when conspiring with public officers, may be indicted
and, if found guilty, held liable for violation of Section 3(g) of RA 3019. Another case, Domingo v.
Sandiganbayan,18may likewise be applied to this case by analogy.
In the said case, Diosdado Garcia, proprietor of D.T. Garcia Construction Supply, together with Jaime Domingo, then
municipal mayor of San Manuel, Isabela, was charged with Section 3(h) of RA 3019 as it appeared that he was used
by Domingo as a dummy to cover up his business transaction with the municipality. Section 3(h) of the anti-graft law
reads:
SEC.3. Corrupt practices of public officers. – x x x
(h) Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection
with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any
law from having an interest.
The elements of this offense are: (1) that the accused is a public officer; (2) he has a direct or indirect financial or
pecuniary interest in any business, contract, or transaction; (3) he either: (a) intervenes or takes part in his official
capacity in connection with such interest, or (b) is prohibited from having such interest by the Constitution or by law. 19
Despite the first element mentioned above, the Court affirmed the conviction of Garcia, a private individual, as well as
that of Domingo, who was then a municipal mayor, for violation of Section 3(h) of RA 3019. In so holding, the Court
established that Domingo and Garcia acted in conspiracy with one another in the commission of the offense. Domingo
thus also serves to debunk petitioner Go’s theory that where an offense has as one of its elements that the accused is
a public officer, it necessarily excludes private persons from the scope of such offense.
The precept that could be drawn from Luciano, Singian and Domingo, and which is applicable to the present case, is
that private persons, when acting in conspiracy with public officers, may be indicted and, if found guilty, held liable for
the pertinent offenses under Section 3 of RA 3019, including (g) and (h) thereof. This is in consonance with the
avowed policy of the anti-graft law to repress certain acts of public officers and private persons alike constituting graft
or corrupt practices act or which may lead thereto.
Reliance by petitioner Go on Marcos v. Sandiganbayan 20 is not quite appropriate. To recall, upon her motion for
reconsideration, the Court therein acquitted former First Lady Imelda Marcos of the charge of violation of Section 3(g)
of RA 3019 in its Resolution dated October 6, 1998. Her acquittal was based on the finding that she signed the subject
lease agreement as a private person, not as a public officer. As such, the first element, i.e., that the accused is a
public officer was wanting.
Petitioner Go, however, failed to put the Court’s ruling in Marcos in its proper factual backdrop. The acquittal of the
former First Lady should be taken in the context of the Court’s Decision dated January 29, 1998, in Dans, Jr. v.
People,21 which the former First Lady sought to reconsider and, finding merit in her motion, gave rise to the Court’s
Resolution in Marcos. In Dans, the Information filed against the former First Lady and Jose P. Dans, Jr., then Minister
of Transportation and Communications, for violation of Section 3(g) of RA 3019, alleged that they were both public
officers and, conspiring with each other, entered into the subject lease agreement covering the LRTA property with the
PGHFI, a private entity, under terms and conditions manifestly and grossly disadvantageous to the government.
The Court in its original decision affirmed the former First Lady’s conviction for violation of Section 3(g) of RA 3019 but
acquitted her co-accused, Dans, Jr., of the said offense. As stated earlier, upon the former First Lady’s motion for
reconsideration, the Court reversed her conviction in its Resolution in Marcos.
It can be gleaned from the entire context of Marcos and Dans that the reversal of the former First Lady’s conviction
was based on the fact that it was later held that she signed the subject lease agreement as a private person, not a
public officer. However, this acquittal should also be taken in conjunction with the fact that the public officer with whom
she had supposedly conspired, her co-accused Dans, had earlier been acquitted. In other words, the element that the
accused is a public officer, was totally wanting in the former First Lady’s case because Dans, the public officer with
whom she had allegedly conspired in committing Section 3(g) of RA 3019, had already been acquitted. Obviously, the
former First Lady could not be convicted, on her own as a private person, of the said offense.
In contrast, petitioner Go cannot rightfully assert the total absence of the first element in his case because he is not
being charged alone but in conspiracy with Rivera, undoubtedly a public officer by virtue of his then being the DOTC
Secretary. The case against both of them is still pending before the Sandiganbayan. The facts attendant in petitioner
Go’s case are, therefore, not exactly on all fours as those of the former First Lady’s case as to warrant the application
of the Marcos ruling in his case.
Anent the allegation of conspiracy, it is posited by the dissenting opinion that the Information is infirm as far as
petitioner Go is concerned because it failed to mention with specificity his participation in the planning and preparation
of the alleged conspiracy. It opines that "aside from the sweeping allegation of conspiracy, the Information failed to
mention any act as to how petitioner had taken part in the planning and preparation of the alleged conspiracy. Mere
allegation of conspiracy in the Information does not necessarily mean that the criminal acts recited therein also pertain
to petitioner." While it concedes that the Sandiganbayan may exercise jurisdiction over private individuals, it submits
that it may do so only "upon Information alleging with specificity the precise violations of the private individual." By way
of conclusion, the dissenting opinion cites Sistoza v. Desierto 22 where the Court stated that a signature appearing on a
document is not enough to sustain a finding of conspiracy among officials and employees charged with defrauding the
government.
These asseverations, however, are unpersuasive. It is well established that 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.23 In the same manner, the absence (or presence) of any conspiracy among the accused is evidentiary in nature
and is a matter of defense, the truth of which can be best passed upon after a full-blown trial on the merits. 24
Following these truisms, the specific acts of petitioner Go in the alleged conspiracy with Rivera in violating Section
3(g) of RA 3019 as well as the details on how petitioner Go had taken part in the planning and preparation of the
alleged conspiracy need not be set forth in the Information as these are evidentiary matters and, as such, are to be
shown and proved during the trial on the merits. Indeed, it bears stressing that "[t]o establish conspiracy, direct proof
of an agreement concerning the commission of a felony and the decision to commit it is not necessary. It may be
inferred from the acts of the accused before, during or after the commission of the crime which, when taken together,
would be enough to reveal a community of criminal design, as the proof of conspiracy is frequently made by evidence
of a chain of circumstances. Once established, all the conspirators are criminally liable as co-principals regardless of
the degree of participation of each of them, for in contemplation of the law the act of one is the act of all." 25
In this connection, for purposes of the Information, it is sufficient that the requirements of Section 8, Rule 110 of the
Rules of Court are complied with:
SEC. 8. Designation of the offense. – The complaint or information shall state the designation of the offense given by
the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating
circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the
statute punishing it.
An accused, like petitioner Go, may file a motion to quash the Information under Section 3(a) of Rule 117 on the
grounds that the facts charged do not constitute an offense. In such a case, the fundamental test in determining the
sufficiency of the material averments of an Information is whether or not the facts alleged therein, which are
hypothetically admitted, would establish the essential elements of the crime defined by law. Evidence aliunde or
matters extrinsic of the Information are not to be considered. 26
As correctly outlined by the Office of the Ombudsman, the facts alleged in the Information, if admitted hypothetically,
establish all the elements of Section 3(g) of RA 3019 vis-à-vis petitioner Go:
ELEMENTS ALLEGATIONS

1. The offender is a public [T]he accused VICENTE C. RIVERA, JR., Secretary of Department of
officer Transportation and Communications (DOTC), committing the offense in relation
to his office and taking advantage of the same, in conspiracy with accused
HENRY T. GO, Chairman and President of Philippine International Air
Terminals, Co., xxx"

2. He entered into a contract "[T]he accused VICENTE C. RIVERA, JR., xxx in conspiracy with accused
or transaction in behalf of the HENRY T. GO xxx did then and there, willfully & unlawfully and feloniously
government entered into an Amended and Restated Concession Agreement (ARCA), after
the project for the construction of the Ninoy Aquino International Airport
International Passenger Terminal III (NAIA IPT III) was awarded to Paircargo
Consortium/PIATCO x x x

3. The contract or transaction "xxx which ARCA substantially amended the draft Concession Agreement
is grossly and manifestly covering the construction of the NAIA IPT III under Republic Act 6957, as
disadvantageous to the amended by Republic Act 7718 (BOT Law) providing that the government shall
government assume the liabilities of PIATCO in the event of the latter’s default specifically
Article IV, Section 4.04 (c) in relation to Article I, Section 1.06 of the ARCA
which terms are more beneficial to PIATCO and in violation of the BOT Law and
manifestly grossly disadvantageous to the government of the Republic of the
Philippines."27

Finally, in the assailed Resolution dated March 24, 2006, the Sandiganbayan ratiocinated thus:
The rule is that the determination of probable cause during the preliminary investigation is a function that belongs to
the public prosecutor, the Office of the Ombudsman in this case. Such official is vested with authority to determine
whether or not a criminal case must be filed in court and the concomitant function of determining as well the persons
to be prosecuted. Also, it must not be lost sight of that the correctness of the exercise of such function is a matter that
the trial court itself does not and may not be compelled to pass upon, consistent with the policy of non-interference by
the courts in the determination by the Ombudsman of the existence of probable cause.
Accordingly, upon the foregoing premises, we believe and so hold that any and all questions relating to the finding of
probable cause by the Office of the Ombudsman should be addressed to the said office itself, then to the Court of
Appeals and, ultimately, to the Supreme Court.
On the matter of the judicial determination of probable cause, we stand by our finding that the same exists in this
case, the said finding we arrived at upon a personal determination thereof which we did for the purpose of and before
the issuance of the warrant of arrest.1awphi1.nét While it may indeed be true that the documents mentioned by
accused-movant as being absent in the records are missing, we nevertheless had for our perusal other documents
assiduously listed down by accused Rivera in his motion, including the information, which we found to constitute
sufficient basis for our determination of the existence of probable cause. It must be emphasized that such
determination is separate and distinct from that made by the Office of the Ombudsman and which we did
independently therefrom.28
The determination of probable cause during a preliminary investigation is a function of the government prosecutor,
which in this case is the Ombudsman. As a rule, courts do not interfere in the Ombudsman’s exercise of discretion in
determining probable cause, unless there are compelling reasons. 29 Mindful of this salutary rule, the Sandiganbayan
nonetheless made its own determination on the basis of the records that were before it. It concluded that there was
sufficient evidence in the records for the finding of the existence of probable cause against petitioner Go.
Grave abuse of discretion implies a capricious and whimsical exercise of judgment tantamount to lack or excess of
jurisdiction. The exercise of power must have been done in an arbitrary or a despotic manner by reason of passion or
personal hostility. It must have been so patent and gross as to amount to an evasion of positive duty or a virtual
refusal to perform the duty enjoined or to act at all in contemplation of law. 30 Clearly, in the light of the foregoing
disquisition, grave abuse of discretion cannot be imputed on the Sandiganbayan when it held that there exists
probable cause against petitioner Go.
ACCORDINGLY, the petition is DISMISSED for lack of merit. The assailed Resolutions dated December 6, 2005 and
March 24, 2006 of the Sandiganbayan in Criminal Case No. 28092 are AFFIRMED in toto. SO ORDERED.
PEOPLE OF THE PHILIPPINES vs. HENRY T. GO
G.R. No. 168539 March 25, 2014
PERALTA, J.:
Before the Court is a petition for review on certiorari assailing the Resolution 1 of the Third Division2 of the
Sandiganbayan (SB) dated June 2, 2005 which quashed the Information filed against herein respondent for alleged
violation of Section 3 (g) of Republic Act No. 3019 (R.A. 3019), otherwise known as the Anti-Graft and Corrupt
Practices Act.
The Information filed against respondent is an offshoot of this Court's Decision 3 in Agan, Jr. v. Philippine International
Air Terminals Co., Inc. which nullified the various contracts awarded by the Government, through the Department of
Transportation and Communications (DOTC), to Philippine Air Terminals, Co., Inc. (PIATCO) for the construction,
operation and maintenance of the Ninoy Aquino International Airport International Passenger Terminal III (NAIA IPT
III). Subsequent to the above Decision, a certain Ma. Cecilia L. Pesayco filed a complaint with the Office of the
Ombudsman against several individuals for alleged violation of R.A. 3019. Among those charged was herein
respondent, who was then the Chairman and President of PIATCO, for having supposedly conspired with then DOTC
Secretary Arturo Enrile (Secretary Enrile) in entering into a contract which is grossly and manifestly disadvantageous
to the government.
On September 16, 2004, the Office of the Deputy Ombudsman for Luzon found probable cause to indict, among
others, herein respondent for violation of Section 3(g) of R.A. 3019. While there was likewise a finding of probable
cause against Secretary Enrile, he was no longer indicted because he died prior to the issuance of the resolution
finding probable cause.
Thus, in an Information dated January 13, 2005, respondent was charged before the SB as follows:
On or about July 12, 1997, or sometime prior or subsequent thereto, in Pasay City, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the late ARTURO ENRILE, then Secretary of the Department of
Transportation and Communications (DOTC), committing the offense in relation to his office and taking advantage of
the same, in conspiracy with accused, HENRY T. GO, Chairman and President of the Philippine International Air
Terminals, Co., Inc. (PIATCO), did then and there, willfully, unlawfully and criminally enter into a Concession
Agreement, after the project for the construction of the Ninoy Aquino International Airport International Passenger
Terminal III (NAIA IPT III) was awarded to Paircargo Consortium/PIATCO, which Concession Agreement substantially
amended the draft Concession Agreement covering the construction of the NAIA IPT III under Republic Act 6957, as
amended by Republic Act 7718 (BOT law), specifically the provision on Public Utility Revenues, as well as the
assumption by the government of the liabilities of PIATCO in the event of the latter's default under Article IV, Section
4.04 (b) and (c) in relation to Article 1.06 of the Concession Agreement, which terms are more beneficial to PIATCO
while manifestly and grossly disadvantageous to the government of the Republic of the Philippines. 4
The case was docketed as Criminal Case No. 28090.
On March 10, 2005, the SB issued an Order, to wit:
The prosecution is given a period of ten (10) days from today within which to show cause why this case should not be
dismissed for lack of jurisdiction over the person of the accused considering that the accused is a private person and
the public official Arturo Enrile, his alleged co-conspirator, is already deceased, and not an accused in this case. 5
The prosecution complied with the above Order contending that the SB has already acquired jurisdiction over the
person of respondent by reason of his voluntary appearance, when he filed a motion for consolidation and when he
posted bail. The prosecution also argued that the SB has exclusive jurisdiction over respondent's case, even if he is a
private person, because he was alleged to have conspired with a public officer. 6
On April 28, 2005, respondent filed a Motion to Quash 7 the Information filed against him on the ground that the
operative facts adduced therein do not constitute an offense under Section 3(g) of R.A. 3019. Respondent, citing the
show cause order of the SB, also contended that, independently of the deceased Secretary Enrile, the public officer
with whom he was alleged to have conspired, respondent, who is not a public officer nor was capacitated by any
official authority as a government agent, may not be prosecuted for violation of Section 3(g) of R.A. 3019.
The prosecution filed its Opposition.8
On June 2, 2005, the SB issued its assailed Resolution, pertinent portions of which read thus:
Acting on the Motion to Quash filed by accused Henry T. Go dated April 22, 2005, and it appearing that Henry T. Go,
the lone accused in this case is a private person and his alleged co-conspirator-public official was already deceased
long before this case was filed in court, for lack of jurisdiction over the person of the accused, the Court grants the
Motion to Quash and the Information filed in this case is hereby ordered quashed and dismissed. 9
Hence, the instant petition raising the following issues, to wit:
I
WHETHER OR NOT THE COURT A QUO GRAVELY ERRED AND DECIDED A QUESTION OF SUBSTANCE IN A
MANNER NOT IN ACCORD WITH LAW OR APPLICABLE JURISPRUDENCE IN GRANTING THE DEMURRER TO
EVIDENCE AND IN DISMISSING CRIMINAL CASE NO. 28090 ON THE GROUND THAT IT HAS NO JURISDICTION
OVER THE PERSON OF RESPONDENT GO.
II
WHETHER OR NOT THE COURT A QUO GRAVELY ERRED AND DECIDED A QUESTION OF SUBSTANCE IN A
MANNER NOT IN ACCORD WITH LAW OR APPLICABLE JURISPRUDENCE, IN RULING THAT IT HAS NO
JURISDICTION OVER THE PERSON OF RESPONDENT GO DESPITE THE IRREFUTABLE FACT THAT HE HAS
ALREADY POSTED BAIL FOR HIS PROVISIONAL LIBERTY
III
WHETHER OR NOT THE COURT A QUO GRAVELY ERRED WHEN, IN COMPLETE DISREGARD OF THE EQUAL
PROTECTION CLAUSE OF THE CONSTITUTION, IT QUASHED THE INFORMATION AND DISMISSED CRIMINAL
CASE NO. 2809010
The Court finds the petition meritorious.
Section 3 (g) of R.A. 3019 provides:
Sec. 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:
xxxx
(g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to
the same, whether or not the public officer profited or will profit thereby.
The elements of the above provision are:
(1) that the accused is a public officer;
(2) that he entered into a contract or transaction on behalf of the government; and
(3) that such contract or transaction is grossly and manifestly disadvantageous to the government. 11
At the outset, it bears to reiterate the settled rule that private persons, when acting in conspiracy with public officers,
may be indicted and, if found guilty, held liable for the pertinent offenses under Section 3 of R.A. 3019, in consonance
with the avowed policy of the anti-graft law to repress certain acts of public officers and private persons alike
constituting graft or corrupt practices act or which may lead thereto. 12 This is the controlling doctrine as enunciated by
this Court in previous cases, among which is a case involving herein private respondent. 13
The only question that needs to be settled in the present petition is whether herein respondent, a private person, may
be indicted for conspiracy in violating Section 3(g) of R.A. 3019 even if the public officer, with whom he was alleged to
have conspired, has died prior to the filing of the Information.
Respondent contends that by reason of the death of Secretary Enrile, there is no public officer who was charged in the
Information and, as such, prosecution against respondent may not prosper.
The Court is not persuaded.
It is true that by reason of Secretary Enrile's death, there is no longer any public officer with whom respondent can be
charged for violation of R.A. 3019. It does not mean, however, that the allegation of conspiracy between them can no
longer be proved or that their alleged conspiracy is already expunged. The only thing extinguished by the death of
Secretary Enrile is his criminal liability. His death did not extinguish the crime nor did it remove the basis of the charge
of conspiracy between him and private respondent. Stated differently, the death of Secretary Enrile does not mean
that there was no public officer who allegedly violated Section 3 (g) of R.A. 3019. In fact, the Office of the Deputy
Ombudsman for Luzon found probable cause to indict Secretary Enrile for infringement of Sections 3 (e) and (g) of
R.A. 3019.14 Were it not for his death, he should have been charged.
The requirement before a private person may be indicted for violation of Section 3(g) of R.A. 3019, among others, is
that such private person must be alleged to have acted in conspiracy with a public officer. The law, however, does not
require that such person must, in all instances, be indicted together with the public officer. If circumstances exist where
the public officer may no longer be charged in court, as in the present case where the public officer has already died,
the private person may be indicted alone.
Indeed, it is not necessary to join all alleged co-conspirators in an indictment for conspiracy. 15 If two or more persons
enter into a conspiracy, any act done by any of them pursuant to the agreement is, in contemplation of law, the act of
each of them and they are jointly responsible therefor. 16 This means that everything said, written or done by any of the
conspirators in execution or furtherance of the common purpose is deemed to have been said, done, or written by
each of them and it makes no difference whether the actual actor is alive or dead, sane or insane at the time of
trial.17 The death of one of two or more conspirators does not prevent the conviction of the survivor or
survivors.18 Thus, this Court held that:
x x x [a] conspiracy is in its nature a joint offense. One person cannot conspire alone. The crime depends upon the
joint act or intent of two or more persons. Yet, it does not follow that one person cannot be convicted of conspiracy. So
long as the acquittal or death of a co-conspirator does not remove the bases of a charge for conspiracy, one
defendant may be found guilty of the offense.19
The Court agrees with petitioner's contention that, as alleged in the Information filed against respondent, which is
deemed hypothetically admitted in the latter's Motion to Quash, he (respondent) conspired with Secretary Enrile in
violating Section 3 (g) of R.A. 3019 and that in conspiracy, the act of one is the act of all. Hence, the criminal liability
incurred by a co-conspirator is also incurred by the other co-conspirators.
Moreover, the Court agrees with petitioner that the avowed policy of the State and the legislative intent to repress
"acts of public officers and private persons alike, which constitute graft or corrupt practices," 20 would be frustrated if
the death of a public officer would bar the prosecution of a private person who conspired with such public officer in
violating the Anti-Graft Law.
In this regard, this Court's disquisition in the early case of People v. Peralta 21 as to the nature of and the principles
governing conspiracy, as construed under Philippine jurisdiction, is instructive, to wit:
x x x A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony
and decide to commit it. Generally, conspiracy is not a crime except when the law specifically provides a penalty
therefor as in treason, rebellion and sedition. The crime of conspiracy known to the common law is not an indictable
offense in the Philippines. An agreement to commit a crime is a reprehensible act from the view-point of morality, but
as long as the conspirators do not perform overt acts in furtherance of their malevolent design, the sovereignty of the
State is not outraged and the tranquility of the public remains undisturbed.
However, when in resolute execution of a common scheme, a felony is committed by two or more malefactors, the
existence of a conspiracy assumes pivotal importance in the determination of the liability of the perpetrators. In
stressing the significance of conspiracy in criminal law, this Court in U.S. vs. Infante and Barreto opined that
While it is true that the penalties cannot be imposed for the mere act of conspiring to commit a crime unless the
statute specifically prescribes a penalty therefor, nevertheless the existence of a conspiracy to commit a crime is in
many cases a fact of vital importance, when considered together with the other evidence of record, in establishing the
existence, of the consummated crime and its commission by the conspirators.
Once an express or implied conspiracy is proved, all of the conspirators are liable as co-principals regardless of the
extent and character of their respective active participation in the commission of the crime or crimes perpetrated in
furtherance of the conspiracy because in contemplation of law the act of one is the act of all. The foregoing rule is
anchored on the sound principle that "when two or more persons unite to accomplish a criminal object, whether
through the physical volition of one, or all, proceeding severally or collectively, each individual whose evil will actively
contributes to the wrong-doing is in law responsible for the whole, the same as though performed by himself alone."
Although it is axiomatic that no one is liable for acts other than his own, "when two or more persons agree or conspire
to commit a crime, each is responsible for all the acts of the others, done in furtherance of the agreement or
conspiracy." The imposition of collective liability upon the conspirators is clearly explained in one case where this
Court held that x x x it is impossible to graduate the separate liability of each (conspirator) without taking into
consideration the close and inseparable relation of each of them with the criminal act, for the commission of which
they all acted by common agreement x x x. The crime must therefore in view of the solidarity of the act and intent
which existed between the x x x accused, be regarded as the act of the band or party created by them, and they are
all equally responsible x x x
Verily, the moment it is established that the malefactors conspired and confederated in the commission of the felony
proved, collective liability of the accused conspirators attaches by reason of the conspiracy, and the court shall not
speculate nor even investigate as to the actual degree of participation of each of the perpetrators present at the scene
of the crime. Of course, as to any conspirator who was remote from the situs of aggression, he could be drawn within
the enveloping ambit of the conspiracy if it be proved that through his moral ascendancy over the rest of the
conspirators the latter were moved or impelled to carry out the conspiracy.
In fine, the convergence of the wills of the conspirators in the scheming and execution of the crime amply justifies the
imputation to all of them the act of any one of them. It is in this light that conspiracy is generally viewed not as a
separate indictable offense, but a rule for collectivizing criminal liability.
xxxx
x x x A time-honored rule in the corpus of our jurisprudence is that once conspiracy is proved, all of the conspirators
who acted in furtherance of the common design are liable as co-principals. This rule of collective criminal liability
emanates from the ensnaring nature of conspiracy. The concerted action of the conspirators in consummating their
common purpose is a patent display of their evil partnership, and for the consequences of such criminal enterprise
they must be held solidarily liable.22
This is not to say, however, that private respondent should be found guilty of conspiring with Secretary Enrile. It is
settled that the absence or presence of conspiracy is factual in nature and involves evidentiary matters. 23 Hence, the
allegation of conspiracy against respondent is better left ventilated before the trial court during trial, where respondent
can adduce evidence to prove or disprove its presence.
Respondent claims in his Manifestation and Motion24 as well as in his Urgent Motion to Resolve25 that in a different
case, he was likewise indicted before the SB for conspiracy with the late Secretary Enrile in violating the same Section
3 (g) of R.A. 3019 by allegedly entering into another agreement (Side Agreement) which is separate from the
Concession Agreement subject of the present case. The case was docketed as Criminal Case No. 28091. Here, the
SB, through a Resolution, granted respondent's motion to quash the Information on the ground that the SB has no
jurisdiction over the person of respondent. The prosecution questioned the said SB Resolution before this Court via a
petition for review on certiorari. The petition was docketed as G.R. No. 168919. In a minute resolution dated August
31, 2005, this Court denied the petition finding no reversible error on the part of the SB. This Resolution became final
and executory on January 11, 2006. Respondent now argues that this Court's resolution in G.R. No. 168919 should be
applied in the instant case.
The Court does not agree. Respondent should be reminded that prior to this Court's ruling in G.R. No. 168919, he
already posted bail for his provisional liberty. In fact, he even filed a Motion for Consolidation 26 in Criminal Case No.
28091. The Court agrees with petitioner's contention that private respondent's act of posting bail and filing his Motion
for Consolidation vests the SB with jurisdiction over his person. The rule is well settled that the act of an accused in
posting bail or in filing motions seeking affirmative relief is tantamount to submission of his person to the jurisdiction of
the court.27
Thus, it has been held that:
When a defendant in a criminal case is brought before a competent court by virtue of a warrant of arrest or otherwise,
in order to avoid the submission of his body to the jurisdiction of the court he must raise the question of the court’s
jurisdiction over his person at the very earliest opportunity. If he gives bail, demurs to the complaint or files any dilatory
plea or pleads to the merits, he thereby gives the court jurisdiction over his person. (State ex rel. John Brown vs.
Fitzgerald, 51 Minn., 534)
xxxx
As ruled in La Naval Drug vs. CA [236 SCRA 78, 86]:
"[L]ack of jurisdiction over the person of the defendant may be waived either expressly or impliedly. When a defendant
voluntarily appears, he is deemed to have submitted himself to the jurisdiction of the court. If he so wishes not to
waive this defense, he must do so seasonably by motion for the purpose of objecting to the jurisdiction of the court;
otherwise, he shall be deemed to have submitted himself to that jurisdiction."
Moreover, "[w]here the appearance is by motion for the purpose of objecting to the jurisdiction of the court over the
person, it must be for the sole and separate purpose of objecting to said jurisdiction. If the appearance is for any other
purpose, the defendant is deemed to have submitted himself to the jurisdiction of the court. Such an appearance gives
the court jurisdiction over the person."
Verily, petitioner’s participation in the proceedings before the Sandiganbayan was not confined to his opposition to the
issuance of a warrant of arrest but also covered other matters which called for respondent court’s exercise of its
jurisdiction. Petitioner may not be heard now to deny said court’s jurisdiction over him. x x x. 28
In the instant case, respondent did not make any special appearance to question the jurisdiction of the SB over his
person prior to his posting of bail and filing his Motion for Consolidation. In fact, his Motion to Quash the Information in
Criminal Case No. 28090 only came after the SB issued an Order requiring the prosecution to show cause why the
case should not be dismissed for lack of jurisdiction over his person.
As a recapitulation, it would not be amiss to point out that the instant case involves a contract entered into by public
officers representing the government. More importantly, the SB is a special criminal court which has exclusive original
jurisdiction in all cases involving violations of R.A. 3019 committed by certain public officers, as enumerated in P.D.
1606 as amended by R.A. 8249. This includes private individuals who are charged as co-principals, accomplices or
accessories with the said public officers. In the instant case, respondent is being charged for violation of Section 3(g)
of R.A. 3019, in conspiracy with then Secretary Enrile. Ideally, under the law, both respondent and Secretary Enrile
should have been charged before and tried jointly by the Sandiganbayan. However, by reason of the death of the
latter, this can no longer be done. Nonetheless, for reasons already discussed, it does not follow that the SB is already
divested of its jurisdiction over the person of and the case involving herein respondent. To rule otherwise would mean
that the power of a court to decide a case would no longer be based on the law defining its jurisdiction but on other
factors, such as the death of one of the alleged offenders.
Lastly, the issues raised in the present petition involve matters which are mere incidents in the main case and the
main case has already been pending for over nine (9) years. Thus, a referral of the case to the Regional Trial Court
would further delay the resolution of the main case and it would, by no means, promote respondent's right to a speedy
trial and a speedy disposition of his case.
WHEREFORE, the petition is GRANTED. The Resolution of the Sandiganbayan dated June 2, 2005, granting
respondent's Motion to Quash, is hereby REVERSED and SET ASIDE. The Sandiganbayan is forthwith DIRECTED to
proceed with deliberate dispatch in the disposition of Criminal Case No. 28090.
SO ORDERED.
CAROLINA R. JAVIER vs. FIRST DIVISION OF THE SANDIGANBAYAN and the PEOPLE OF THE PHILIPPINES
G.R. Nos. 147026-27 September 11, 2009
DEL CASTILLO, J.:
Before the Court is a petition for certiorari1 under Rule 65 of the Rules of Court filed by petitioner Carolina R. Javier in
Criminal Case Nos. 25867 and 25898, entitled "People of the Philippines, Plaintiff versus Carolina R. Javier,
Accused," seeking to nullify respondent Sandiganbayan's: (1) Order2 dated November 14, 2000 in Criminal Case No.
25867, which denied her Motion to Quash Information; (2) Resolution 3 dated January 17, 2001 in Criminal Case No.
25898, which denied her Motion for Reconsideration and Motion to Quash Information; and (3) Order 4 dated February
12, 2001, declaring that a motion for reconsideration in Criminal Case No. 25898 would be superfluous as the issues
are fairly simple and straightforward.
The factual antecedents follow.
On June 7, 1995, Republic Act (R.A.) No. 8047,5 or otherwise known as the "Book Publishing Industry Development
Act", was enacted into law. Foremost in its policy is the State's goal in promoting the continuing development of the
book publishing industry, through the active participation of the private sector, to ensure an adequate supply of
affordable, quality-produced books for the domestic and export market.
To achieve this purpose, the law provided for the creation of the National Book Development Board (NBDB or the
Governing Board, for brevity), which shall be under the administration and supervision of the Office of the President.
The Governing Board shall be composed of eleven (11) members who shall be appointed by the President of the
Philippines, five (5) of whom shall come from the government, while the remaining six (6) shall be chosen from the
nominees of organizations of private book publishers, printers, writers, book industry related activities, students and
the private education sector.
On February 26, 1996, petitioner was appointed to the Governing Board as a private sector representative for a term
of one (1) year.6 During that time, she was also the President of the Book Suppliers Association of the Philippines
(BSAP). She was on a hold-over capacity in the following year. On September 14, 1998, she was again appointed to
the same position and for the same period of one (1) year. 7 Part of her functions as a member of the Governing Board
is to attend book fairs to establish linkages with international book publishing bodies. On September 29, 1997, she
was issued by the Office of the President a travel authority to attend the Madrid International Book Fair in Spain on
October 8-12, 1997.8 Based on her itinerary of travel,9 she was paid ₱139,199.0010 as her travelling expenses.
Unfortunately, petitioner was not able to attend the scheduled international book fair.
On February 16, 1998, Resident Auditor Rosario T. Martin advised petitioner to immediately return/refund her cash
advance considering that her trip was canceled.11 Petitioner, however, failed to do so. On July 6, 1998, she was issued
a Summary of Disallowances12 from which the balance for settlement amounted to ₱220,349.00. Despite said notice,
no action was forthcoming from the petitioner.
On September 23, 1999, Dr. Nellie R. Apolonio, then the Executive Director of the NBDB, filed with the Ombudsman a
complaint against petitioner for malversation of public funds and properties. She averred that despite the cancellation
of the foreign trip, petitioner failed to liquidate or return to the NBDB her cash advance within sixty (60) days from date
of arrival, or in this case from the date of cancellation of the trip, in accordance with government accounting and
auditing rules and regulations. Dr. Apolonio further charged petitioner with violation of Republic Act (R.A.) No.
671313 for failure to file her Statement of Assets and Liabilities.
The Ombudsman found probable cause to indict petitioner for violation of Section 3(e) of R.A. No. 3019, 14 as
amended, and recommended the filing of the corresponding information. 15 It, however, dismissed for insufficiency of
evidence, the charge for violation of R.A. No. 6713.
In an Information dated February 18, 2000, petitioner was charged with violation of Section 3(e) of R.A. No. 3019
before the Sandiganbayan, to wit:
That on or about October 8, 1997, or for sometime prior or subsequent thereto, in the City of Quezon, Philippines and
within the jurisdiction of this Honorable Court, the aforenamed accused, a public officer, being then a member of the
governing Board of the National Book Development Board (NBDB), while in the performance of her official and
administrative functions, and acting with evident bad faith or gross inexcusable negligence, did then and there willfully,
unlawfully and criminally, without any justifiable cause, and despite due demand by the Resident Auditor and the
Executive Director of NBDB, fail and refuse to return and/or liquidate her cash advances intended for official travel
abroad which did not materialize, in the total amount of ₱139,199.00 as of September 23, 1999, as required under EO
No. 248 and Sec. 5 of COA Circular No. 97-002 thereby causing damage and undue injury to the Government.
CONTRARY TO LAW.16
The case was docketed as Criminal Case No. 25867 and raffled to the First Division.
Meanwhile, the Commission on Audit charged petitioner with Malversation of Public Funds, as defined and penalized
under Article 217 of the Revised Penal Code, for not liquidating the cash advance granted to her in connection with
her supposed trip to Spain. During the conduct of the preliminary investigation, petitioner was required to submit her
counter-affidavit but she failed to do so. The Ombudsman found probable cause to indict petitioner for the crime
charged and recommended the filing of the corresponding information against her. 17
Thus, an Information dated February 29, 2000 was filed before the Sandiganbayan, which was docketed as Criminal
Case No. 25898, and raffled to the Third Division, the accusatory portion of which reads:
That on or about and during the period from October 8, 1997 to February 16, 1999, or for sometime prior or
subsequent thereto, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, a high ranking officer, being a member of the Governing Board of the National Book Development Board and
as such, is accountable for the public funds she received as cash advance in connection with her trip to Spain from
October 8-12, 1997, per LBP Check No. 10188 in the amount of ₱139,199.00, which trip did not materialize, did then
and there willfully, unlawfully and feloniously take, malverse, misappropriate, embezzle and convert to her own
personal use and benefit the aforementioned amount of ₱139,199.00, Philippine currency, to the damage and
prejudice of the government in the aforesaid amount.
CONTRARY TO LAW.18
During her arraignment in Criminal Case No. 25867, petitioner pleaded not guilty. Thereafter, petitioner delivered to
the First Division the money subject of the criminal cases, which amount was deposited in a special trust account
during the pendency of the criminal cases.
Meanwhile, the Third Division set a clarificatory hearing in Criminal Case No. 25898 on May 16, 2000 in order to
determine jurisdictional issues. On June 3, 2000, petitioner filed with the same Division a Motion for Consolidation 19of
Criminal Case No. 25898 with Criminal Case No. 25867, pending before the First Division. On July 6, 2000, the
People filed an Urgent Ex-Parte Motion to Admit Amended Information 20 in Criminal Case No. 25898, which was
granted. Accordingly, the Amended Information dated June 28, 2000 reads as follows:
That on or about and during the period from October 8, 1997 to February 16, 1999, or for sometime prior or
subsequent thereto, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, a high ranking officer, being a member of the Governing Board of the National Book Development
Board equated to Board Member II with a salary grade 28 and as such, is accountable for the public funds she
received as case advance in connection with her trip to Spain from October 8-12, 1997, per LBP Check No. 10188 in
the amount of ₱139,199.00, which trip did not materialize, did then and there willfully, unlawfully and feloniously take,
malverse, misappropriate, embezzle and convert to her own personal use and benefit the aforementioned amount of
₱139,199.00, Philippine currency, to the damage and prejudice of the government in the aforesaid amount.
CONTRARY TO LAW.21
In its Resolution dated October 5, 2000, the Third Division ordered the consolidation of Criminal Case No. 25898 with
Criminal Case No. 25867. 22
On October 10, 2000, petitioner filed a Motion to Quash Information, 23 averring that the Sandiganbayan has no
jurisdiction to hear Criminal Case No. 25867 as the information did not allege that she is a public official who is
classified as Grade "27" or higher. Neither did the information charge her as a co-principal, accomplice or accessory to
a public officer committing an offense under the Sandiganbayan's jurisdiction. She also averred that she is not a public
officer or employee and that she belongs to the Governing Board only as a private sector representative under R.A.
No. 8047, hence, she may not be charged under R.A. No. 3019 before the Sandiganbayan or under any statute which
covers public officials. Moreover, she claimed that she does not perform public functions and is without any
administrative or political power to speak of – that she is serving the private book publishing industry by advancing
their interest as participant in the government's book development policy.
In an Order24 dated November 14, 2000, the First Division 25 denied the motion to quash with the following disquisition:
The fact that the accused does not receive any compensation in terms of salaries and allowances, if that indeed be
the case, is not the sole qualification for being in the government service or a public official. The National Book
Development Board is a statutory government agency and the persons who participated therein even if they are from
the private sector, are public officers to the extent that they are performing their duty therein as such.
Insofar as the accusation is concerned herein, it would appear that monies were advanced to the accused in her
capacity as Director of the National Book Development Board for purposes of official travel. While indeed under
ordinary circumstances a member of the board remains a private individual, still when that individual is performing her
functions as a member of the board or when that person receives benefits or when the person is supposed to travel
abroad and is given government money to effect that travel, to that extent the private sector representative is a public
official performing public functions; if only for that reason, and not even considering situation of her being in
possession of public funds even as a private individual for which she would also covered by provisions of the Revised
Penal Code, she is properly charged before this Court.
On November 15, 2000, the First Division accepted the consolidation of the criminal cases against petitioner and
scheduled her arraignment on November 17, 2000, for Criminal Case No. 25898. On said date, petitioner manifested
that she is not prepared to accept the propriety of the accusation since it refers to the same subject matter as that
covered in Criminal Case No. 25867 for which the Sandiganbayan gave her time to file a motion to quash. On
November 22, 2000, petitioner filed a Motion to Quash the Information 26 in Criminal Case No. 25898, by invoking her
right against double jeopardy. However, her motion was denied in open court. She then filed a motion for
reconsideration.
On January 17, 2001, the Sandiganbayan issued a Resolution 27 denying petitioner’s motion with the following
disquisition:
The accused is under the jurisdiction of this Court because Sec. 4 (g) of P.D. 1606 as amended so provides, thus:
Sec. 4. Jurisdiction. – The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving:
xxxx
(g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities
or educational institutions or foundations;
xxxx
The offense is office-related because the money for her travel abroad was given to her because of her Directorship in
the National Book Development Board.
Furthermore, there are also allegations to hold the accused liable under Article 222 of the Revised Penal Code which
reads:
Art. 222. Officers included in the preceding provisions. – The provisions of this chapter shall apply to private
individuals who, in any capacity whatever, have charge of any insular, provincial or municipal funds, revenues, or
property and to any administrator or depository of funds or property attached , seized or deposited by public authority,
even if such property belongs to a private individual.
Likewise, the Motion to Quash the Information in Criminal Case No. 25898 on the ground of litis pendencia is denied
since in this instance, these two Informations speak of offenses under different statutes, i.e., R.A. No. 3019 and the
Revised Penal Code, neither of which precludes prosecution of the other.
Petitioner hinges the present petition on the ground that the Sandiganbayan has committed grave abuse of discretion
amounting to lack of jurisdiction for not quashing the two informations charging her with violation of the Anti-Graft Law
and the Revised Penal Code on malversation of public funds. She advanced the following arguments in support of her
petition, to wit: first, she is not a public officer, and second, she was being charged under two (2) informations, which is
in violation of her right against double jeopardy.
A motion to quash an Information is the mode by which an accused assails the validity of a criminal complaint or
Information filed against him for insufficiency on its face in point of law, or for defects which are apparent in the face of
the Information.28
Well-established is the rule that when a motion to quash in a criminal case is denied, the remedy is not a petition for
certiorari, but for petitioners to go to trial, without prejudice to reiterating the special defenses invoked in their motion
to quash. Remedial measures as regards interlocutory orders, such as a motion to quash, are frowned upon and often
dismissed. The evident reason for this rule is to avoid multiplicity of appeals in a single action. 29
The above general rule, however admits of several exceptions, one of which is when the court, in denying the motion
to dismiss or motion to quash, acts without or in excess of jurisdiction or with grave abuse of discretion, then certiorari
or prohibition lies. The reason is that it would be unfair to require the defendant or accused to undergo the ordeal and
expense of a trial if the court has no jurisdiction over the subject matter or offense, or is not the court of proper venue,
or if the denial of the motion to dismiss or motion to quash is made with grave abuse of discretion or a whimsical and
capricious exercise of judgment. In such cases, the ordinary remedy of appeal cannot be plain and adequate. 30
To substantiate her claim, petitioner maintained that she is not a public officer and only a private sector representative,
stressing that her only function among the eleven (11) basic purposes and objectives provided for in Section 4, R.A.
No. 8047, is to obtain priority status for the book publishing industry. At the time of her appointment to the NDBD
Board, she was the President of the BSAP, a book publishers association. As such, she could not be held liable for the
crimes imputed against her, and in turn, she is outside the jurisdiction of the Sandiganbayan.
The NBDB is the government agency mandated to develop and support the Philippine book publishing industry. It is a
statutory government agency created by R.A. No. 8047, which was enacted into law to ensure the full development of
the book publishing industry as well as for the creation of organization structures to implement the said policy. To
achieve this end, the Governing Board of the NBDB was created to supervise the implementation. The Governing
Board was vested with powers and functions, to wit:
a) assume responsibility for carrying out and implementing the policies, purposes and objectives provided for in this Act;
b) formulate plans and programs as well as operational policies and guidelines for undertaking activities relative to promoting
book development, production and distribution as well as an incentive scheme for individual authors and writers;
c) formulate policies, guidelines and mechanisms to ensure that editors, compilers and especially authors are paid justly and
promptly royalties due them for reproduction of their works in any form and number and for whatever purpose;
d) conduct or contract research on the book publishing industry including monitoring, compiling and providing data and
information of book production;
 e) provide a forum for interaction among private publishers, and, for the purpose, establish and maintain liaison will all the
segments of the book publishing industry;
f) ask the appropriate government authority to ensure effective implementation of the National Book Development Plan;
g) promulgate rules and regulations for the implementation of this Act in consultation with other agencies concerned, except
for Section 9 hereof on incentives for book development, which shall be the concern of appropriate agencies involved;
h) approve, with the concurrence of the Department of Budget and Management (DBM), the annual and supplemental
budgets submitted to it by the Executive director;
i) own, lease, mortgage, encumber or otherwise real and personal property for the attainment of its purposes and objectives;
j) enter into any obligation or contract essential to the proper administration of its affairs, the conduct of its operations or the
accomplishment of its purposes and objectives;
k) receive donations, grants, legacies, devices and similar acquisitions which shall form a trust fund of the Board to
accomplish its development plans on book publishing;
l) import books or raw materials used in book publishing which are exempt from all taxes, customs duties and other charges
in behalf of persons and enterprises engaged in book publishing and its related activities duly registered with the board;
m) promulgate rules and regulations governing the matter in which the general affairs of the Board are to be exercised and
amend, repeal, and modify such rules and regulations whenever necessary;
n) recommend to the President of the Philippines nominees for the positions of the Executive Officer and Deputy Executive
Officer of the Board;
o) adopt rules and procedures and fix the time and place for holding meetings: Provided, That at least one (1) regular
meeting shall be held monthly;
p) conduct studies, seminars, workshops, lectures, conferences, exhibits, and other related activities on book development
such as indigenous authorship, intellectual property rights, use of alternative materials for printing, distribution and others;
and
q) exercise such other powers and perform such other duties as may be required by the law.31
A perusal of the above powers and functions leads us to conclude that they partake of the nature of public functions.
A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed
by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the
sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so
invested is a public officer.32
Notwithstanding that petitioner came from the private sector to sit as a member of the NBDB, the law invested her with
some portion of the sovereign functions of the government, so that the purpose of the government is achieved. In this
case, the government aimed to enhance the book publishing industry as it has a significant role in the national
development. Hence, the fact that she was appointed from the public sector and not from the other branches or
agencies of the government does not take her position outside the meaning of a public office. She was appointed to
the Governing Board in order to see to it that the purposes for which the law was enacted are achieved. The
Governing Board acts collectively and carries out its mandate as one body. The purpose of the law for appointing
members from the private sector is to ensure that they are also properly represented in the implementation of
government objectives to cultivate the book publishing industry.
Moreover, the Court is not unmindful of the definition of a public officer pursuant to the Anti-Graft Law, which provides
that a public officer includes elective and appointive officials and employees, permanent or temporary, whether in the
classified or unclassified or exempt service receiving compensation, even nominal, from the government. 33
Thus, pursuant to the Anti-Graft Law, one is a public officer if one has been elected or appointed to a public office.
Petitioner was appointed by the President to the Governing Board of the NDBD. Though her term is only for a year
that does not make her private person exercising a public function. The fact that she is not receiving a monthly salary
is also of no moment. Section 7, R.A. No. 8047 provides that members of the Governing Board shall receive per diem
and such allowances as may be authorized for every meeting actually attended and subject to pertinent laws, rules
and regulations. Also, under the Anti-Graft Law, the nature of one's appointment, and whether the compensation one
receives from the government is only nominal, is immaterial because the person so elected or appointed is still
considered a public officer.
On the other hand, the Revised Penal Code defines a public officer as any person who, by direct provision of the law,
popular election, popular election or appointment by competent authority, shall take part in the performance of public
functions in the Government of the Philippine Islands, or shall perform in said Government or in any of its branches
public duties as an employee, agent, or subordinate official, of any rank or classes, shall be deemed to be a public
officer.34
Where, as in this case, petitioner performs public functions in pursuance of the objectives of R.A. No. 8047, verily, she
is a public officer who takes part in the performance of public functions in the government whether as an employee,
agent, subordinate official, of any rank or classes. In fact, during her tenure, petitioner took part in the drafting and
promulgation of several rules and regulations implementing R.A. No. 8047. She was supposed to represent the
country in the canceled book fair in Spain.
In fine, We hold that petitioner is a public officer. The next question for the Court to resolve is whether, as a public
officer, petitioner is within the jurisdiction of the Sandiganbayan.
Presently,35 the Sandiganbayan has jurisdiction over the following:
Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving:
A. Violations of Republic Act No. 3019, as amended, other known as the Anti-Graft and Corrupt Practices Act,
Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of
the accused are officials occupying the following positions in the government, whether in a permanent, acting or
interim capacity, at the time of the commission of the offense:
(1) Officials of the executive branch occupying the positions of regional director and higher, otherwise
classified as Grade "27" and higher, of the Compensation and Position Classification Act of 989 (Republic Act
No. 6758), specifically including:
xxxx
(2) Members of Congress and officials thereof classified as Grade "Grade '27'" and up under the
Compensation and Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the provisions of the Constitution;
(4) Chairmen and members of Constitutional Commission, without prejudice to the provisions of the
Constitution; and
(5) All other national and local officials classified as Grade "Grade '27'" and higher under the Compensation
and Position Classification Act of 1989.
xxxx
Notably, the Director of Organization, Position Classification and Compensation Bureau, of the Department of Budget
and management provided the following information regarding the compensation and position classification and/or
rank equivalence of the member of the Governing Board of the NBDB, thus:
Per FY 1999 Personal Services Itemization, the Governing Board of NDBD is composed of one (1) Chairman (ex-
officio), one (1) Vice-Chairman (ex-officio), and nine (9) Members, four (4) of whom are ex-officio and the remaining
five (5) members represent the private sector. The said five members of the Board do not receive any salary and as
such their position are not classified and are not assigned any salary grade.
For purposes however of determining the rank equivalence of said positions, notwithstanding that they do not have
any salary grade assignment, the same may be equated to Board Member II, SG-28. 36
Thus, based on the Amended Information in Criminal Case No. 25898, petitioner belongs to the employees classified
as SG-28, included in the phrase "all other national and local officials classified as ‘Grade 27' and higher under the
Compensation and Position Classification Act of 1989."
Anent the issue of double jeopardy, We can not likewise give in to the contentions advanced by petitioner. She argued
that her right against double jeopardy was violated when the Sandiganbayan denied her motion to quash the two
informations filed against her.1avvphi1
We believe otherwise. Records show that the Informations in Criminal Case Nos. 25867 and 25898 refer to offenses
penalized by different statues, R.A. No. 3019 and RPC, respectively. It is elementary that for double jeopardy to
attach, the case against the accused must have been dismissed or otherwise terminated without his express consent
by a court of competent jurisdiction, upon valid information sufficient in form and substance and the accused pleaded
to the charge.37 In the instant case, petitioner pleaded not guilty to the Information for violation of the Anti-Graft Law.
She was not yet arraigned in the criminal case for malversation of public funds because she had filed a motion to
quash the latter information. Double jeopardy could not, therefore, attach considering that the two cases remain
pending before the Sandiganbayan and that herein petitioner had pleaded to only one in the criminal cases against
her.
It is well settled that for a claim of double jeopardy to prosper, the following requisites must concur: (1) there is a
complaint or information or other formal charge sufficient in form and substance to sustain a conviction; (2) the same
is filed before a court of competent jurisdiction; (3) there is a valid arraignment or plea to the charges; and (4) the
accused is convicted or acquitted or the case is otherwise dismissed or terminated without his express consent. 38The
third and fourth requisites are not present in the case at bar.
In view of the foregoing, We hold that the present petition does not fall under the exceptions wherein the remedy of
certiorari may be resorted to after the denial of one's motion to quash the information. And even assuming that
petitioner may avail of such remedy, We still hold that the Sandiganbayan did not commit grave abuse of discretion
amounting to lack of or in excess of jurisdiction.
WHEREFORE, the Petition is DISMISSED. The questioned Resolutions and Order of the Sandiganbayan
are AFFIRMED. Costs against petitioner.
SO ORDERED.
RUPERTO A. AMBIL, JR. vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES
G.R. No. 175457 July 6, 2011
x - - - - - - - - - - - - - - - - - - - - - - -x
ALEXANDRINO R. APELADO, SR. vs. PEOPLE OF THE PHILIPPINES
G.R. No. 175482
VILLARAMA, JR., J.:
Before us are two consolidated petitions for review on certiorari filed by petitioner Ruperto A. Ambil, Jr. 1 and petitioner
Alexandrino R. Apelado Sr.2 assailing the Decision3 promulgated on September 16, 2005 and Resolution 4dated
November 8, 2006 of the Sandiganbayan in Criminal Case No. 25892.
The present controversy arose from a letter5 of Atty. David B. Loste, President of the Eastern Samar Chapter of the
Integrated Bar of the Philippines (IBP), to the Office of the Ombudsman, praying for an investigation into the alleged
transfer of then Mayor Francisco Adalim, an accused in Criminal Case No. 10963 for murder, from the provincial jail of
Eastern Samar to the residence of petitioner, then Governor Ruperto A. Ambil, Jr. In a Report 6 dated January 4, 1999,
the National Bureau of Investigation (NBI) recommended the filing of criminal charges against petitioner Ambil, Jr. for
violation of Section 3(e)7 of Republic Act (R.A.) No. 3019, otherwise known as the Anti-Graft and Corrupt Practices
Act, as amended. On September 22, 1999, the new President of the IBP, Eastern Samar Chapter, informed the
Ombudsman that the IBP is no longer interested in pursuing the case against petitioners. Thus, he recommended the
dismissal of the complaint against petitioners.8
Nonetheless, in an Information9 dated January 31, 2000, petitioners Ambil, Jr. and Alexandrino R. Apelado, Sr. were
charged with violation of Section 3(e) of R.A. No. 3019, together with SPO3 Felipe A. Balano. Upon reinvestigation,
the Office of the Ombudsman issued a Memorandum 10 dated August 4, 2000, recommending the dismissal of the
complaint as regards Balano and the amendment of the Information to include the charge of Delivering Prisoners from
Jail under Article 15611 of the Revised Penal Code, as amended, (RPC) against the remaining accused. The Amended
Information12 reads:
That on or about the 6th day of September 1998, and for sometime prior [or] subsequent thereto, [in] the Municipality
of Borongan, Province of Eastern Samar, Philippines, and within the jurisdiction of this Honorable Court, [the] above-
named accused, Ruperto A. Ambil, Jr.[,] being then the Provincial Governor of Eastern Samar, and Alexandrino R.
Apelado, being then the Provincial Warden of Eastern Samar, both having been public officers, duly elected,
appointed and qualified as such, committing the offense in relation to office, conniving and confederating together and
mutually helping x x x each other, with deliberate intent, manifest partiality and evident bad faith, did then and there
wilfully, unlawfully and criminally order and cause the release from the Provincial Jail of detention prisoner Mayor
Francisco Adalim, accused in Criminal Case No. 10963, for Murder, by virtue of a warrant of Arrest issued by
Honorable Arnulfo P. Bugtas, Presiding Judge, RTC-Branch 2, Borongan, Eastern Samar, and thereafter placed said
detention prisoner (Mayor Francisco Adalim) under accused RUPERTO A. AMBIL, JR.’s custody, by allowing said
Mayor Adalim to stay at accused Ambil’s residence for a period of Eighty-Five (85) days, more or less which act was
done without any court order, thus accused in the performance of official functions had given unwarranted benefits and
advantage to detainee Mayor Francisco Adalim to the prejudice of the government.
CONTRARY TO LAW.
BAIL BOND RECOMMENDED: P30,000.00 each.13
On arraignment, petitioners pleaded not guilty and posted bail.
At the pre-trial, petitioners admitted the allegations in the Information. They reason, however, that Adalim’s transfer
was justified considering the imminent threats upon his person and the dangers posed by his detention at the
provincial jail. According to petitioners, Adalim’s sister, Atty. Juliana A. Adalim-White, had sent numerous prisoners to
the same jail where Mayor Adalim was to be held.
Consequently, the prosecution no longer offered testimonial evidence and rested its case after the admission of its
documentary exhibits. Petitioners filed a Motion for Leave to File Demurrer to Evidence with Reservation to Present
Evidence in Case of Denial14 but the same was denied.
At the trial, petitioners presented three witnesses: petitioner Ambil, Jr., Atty. Juliana A. Adalim-White and Mayor
Francisco C. Adalim.
Petitioner Ambil, Jr. testified that he was the Governor of Eastern Samar from 1998 to 2001. According to him, it was
upon the advice of Adalim’s lawyers that he directed the transfer of Adalim’s detention to his home. He cites poor
security in the provincial jail as the primary reason for taking personal custody of Adalim considering that the latter
would be in the company of inmates who were put away by his sister and guards identified with his political
opponents.15
For her part, Atty. White stated that she is the District Public Attorney of Eastern Samar and the sister of Mayor Adalim.
She recounted how Mayor Adalim was arrested while they were attending a wedding in Sulat, Eastern Samar, on
September 6, 1998. According to Atty. White, she sought the alternative custody of Gov. Ambil, Jr. after Provincial
Warden and herein petitioner Apelado, Sr. failed to guarantee the mayor’s safety. 16
Meanwhile, Francisco Adalim introduced himself as the Mayor of Taft, Eastern Samar. He confirmed his arrest on
September 6, 1998 in connection with a murder case filed against him in the Regional Trial Court (RTC) of Borongan,
Eastern Samar. Adalim confirmed Atty. White’s account that he spotted inmates who served as bodyguards for, or who
are associated with, his political rivals at the provincial jail. He also noticed a prisoner, Roman Akyatan, gesture to him
with a raised clenched fist. Sensing danger, he called on his sister for help. Adalim admitted staying at Ambil, Jr.’s
residence for almost three months before he posted bail after the charge against him was downgraded to homicide. 17
Petitioner Apelado, Sr. testified that he was the Provincial Jail Warden of Eastern Samar. He recalls that on September
6, 1998, SPO3 Felipe Balano fetched him at home to assist in the arrest of Mayor Adalim. Allegedly, Atty. White was
contesting the legality of Mayor Adalim’s arrest and arguing with the jail guards against booking him for detention. At
the provincial jail, petitioner was confronted by Atty. White who informed him that he was under the governor, in the
latter’s capacity as a provincial jailer. Petitioner claims that it is for this reason that he submitted to the governor’s
order to relinquish custody of Adalim.18
Further, petitioner Apelado, Sr. described the physical condition of the jail to be dilapidated and undermanned.
According to him, only two guards were incharge of looking after 50 inmates. There were two cells in the jail, each
housing 25 inmates, while an isolation cell of 10 square meters was unserviceable at the time. Also, there were
several nipa huts within the perimeter for use during conjugal visits. 19
On September 16, 2005, the Sandiganbayan, First Division, promulgated the assailed Decision 20 finding petitioners
guilty of violating Section 3(e) of R.A. No. 3019. The court ruled that in moving Adalim to a private residence,
petitioners have conspired to accord him unwarranted benefits in the form of more comfortable quarters with access to
television and other privileges that other detainees do not enjoy. It stressed that under the Rules, no person under
detention by legal process shall be released or transferred except upon order of the court or when he is admitted to
bail.21
The Sandiganbayan brushed aside petitioners’ defense that Adalim’s transfer was made to ensure his safety. It
observed that petitioner Ambil, Jr. did not personally verify any actual threat on Adalim’s life but relied simply on the
advice of Adalim’s lawyers. The Sandiganbayan also pointed out the availability of an isolation cell and nipa huts
within the 10-meter-high perimeter fence of the jail which could have been used to separate Adalim from other
prisoners. Finally, it cited petitioner Ambil, Jr.’s failure to turn over Adalim despite advice from Assistant Secretary
Jesus Ingeniero of the Department of Interior and Local Government.
Consequently, the Sandiganbayan sentenced petitioner Ambil, Jr. to an indeterminate penalty of imprisonment for nine
(9) years, eight (8) months and one (1) day to twelve (12) years and four (4) months. In favor of petitioner Apelado,
Sr., the court appreciated the incomplete justifying circumstance of obedience to a superior order and sentenced him
to imprisonment for six (6) years and one (1) month to nine (9) years and eight (8) months.
Hence, the present petitions.
Petitioner Ambil, Jr. advances the following issues for our consideration:
I
WHETHER OR NOT SECTION 3(e) REPUBLIC ACT NO. 3019, AS AMENDED, APPLIES TO PETITIONER’S
CASE BEFORE THE SANDIGANBAYAN.
II
WHETHER OR NOT A PUBLIC OFFICER SUCH AS PETITIONER IS A PRIVATE PARTY FOR PURPOSES
OF SECTION 3(e), REPUBLIC ACT NO. 3019, AS AMENDED.
III
WHETHER OR NOT PETITIONER ACTED WITH DELIBERATE INTENT, MANIFEST PARTIALITY, EVIDENT
BAD FAITH OR GROSS INEXCUSABLE NEGLIGENCE IN THE CONTEXT OF SAID SECTION 3(e).
IV
WHETHER OR NOT PETITIONER AS PROVINCIAL GOVERNOR AND JAILER UNDER SECTIONS 1730
AND 1733, ARTICLE III, CHAPTER 45 OF THE ADMINISTRATIVE CODE OF 1917 AND SECTION 61,
CHAPTER V, REPUBLIC ACT 6975 HAS THE AUTHORITY TO TAKE CUSTODY OF A DETENTION
PRISONER.
V
WHETHER OR NOT PETITIONER IS ENTITLED TO THE JUSTIFYING CIRCUMSTANCE OF FULFILLMENT
OF A DUTY OR THE LAWFUL EXERCISE OF A RIGHT OR OFFICE.
VI
WHETHER OR NOT PETITIONER SHOULD HAVE BEEN ACQUITTED BECAUSE THE PROSECUTION
EVIDENCE DID NOT ESTABLISH HIS GUILT BEYOND REASONABLE DOUBT. 22
For his part, petitioner Apelado, Sr. imputes the following errors on the Sandiganbayan:
 I
THERE WAS MISAPPREHENSION OF FACTS AND/OR MISAPPLICATION OF THE LAW AND
JURISPRUDENCE IN CONVICTING ACCUSED APELADO, EITHER AS PRINCIPAL OR IN CONSPIRACY
WITH HIS CO-ACCUSED AMBIL.
II
IN THE ABSENCE OF COMPETENT PROOF BEYOND REASONABLE DOUBT OF CONSPIRACY
BETWEEN ACCUSED AMBIL AND HEREIN PETITIONER, THE LATTER SHOULD BE ACCORDED FULL
CREDIT FOR THE JUSTIFYING CIRCUMSTANCE UNDER PARAGRAPH 6, ARTICLE 11 OF THE REVISED
PENAL CODE.
III
THE COURT A QUO’S BASIS IN CONVICTING BOTH ACCUSED AMBIL AND HEREIN PETITIONER OF
HAVING GIVEN MAYOR ADALIM "UNWARRANTED BENEFITS AND ADVANTAGE TO THE PREJUDICE x x
x OF THE GOVERNMENT IS, AT THE MOST, SPECULATIVE.23
The issues raised by petitioner Ambil, Jr. can be summed up into three: (1) Whether he is guilty beyond reasonable
doubt of violating Section 3(e), R.A. No. 3019; (2) Whether a provincial governor has authority to take personal
custody of a detention prisoner; and (3) Whether he is entitled to the justifying circumstance of fulfillment of duty under
Article 11(5)24 of the RPC.
Meanwhile, petitioner Apelado, Sr.’s assignment of errors can be condensed into two: (1) Whether he is guilty beyond
reasonable doubt of violating Section 3(e), R.A. No. 3019; and (2) Whether he is entitled to the justifying circumstance
of obedience to an order issued by a superior for some lawful purpose under Article 11(6) 25 of the RPC.
Fundamentally, petitioner Ambil, Jr. argues that Section 3(e), R.A. No. 3019 does not apply to his case because the
provision contemplates only transactions of a pecuniary nature. Since the law punishes a public officer who extends
unwarranted benefits to a private person, petitioner avers that he cannot be held liable for extending a favor to Mayor
Adalim, a public officer. Further, he claims good faith in taking custody of the mayor pursuant to his duty as a
"Provincial Jailer" under the Administrative Code of 1917. Considering this, petitioner believes himself entitled to the
justifying circumstance of fulfillment of duty or lawful exercise of duty.
Petitioner Apelado, Sr., on the other hand, denies allegations of conspiracy between him and petitioner Ambil, Jr.
Petitioner Apelado, Sr. defends that he was merely following the orders of a superior when he transferred the
detention of Adalim. As well, he invokes immunity from criminal liability.
For the State, the Office of the Special Prosecutor (OSP) points out the absence of jurisprudence that restricts the
application of Section 3(e), R.A. No. 3019 to transactions of a pecuniary nature. The OSP explains that it is enough to
show that in performing their functions, petitioners have accorded undue preference to Adalim for liability to attach
under the provision. Further, the OSP maintains that Adalim is deemed a private party for purposes of applying
Section 3(e), R.A. No. 3019 because the unwarranted benefit redounded, not to his person as a mayor, but to his
person as a detention prisoner accused of murder. It suggests further that petitioners were motivated by bad faith as
evidenced by their refusal to turn over Adalim despite instruction from Asst. Sec. Ingeniero. The OSP also reiterates
petitioners’ lack of authority to take custody of a detention prisoner without a court order. Hence, it concludes that
petitioners are not entitled to the benefit of any justifying circumstance.
After a careful review of this case, the Court finds the present petitions bereft of merit.
Petitioners were charged with violation of Section 3(e) of R.A. No. 3019 or the Anti-Graft and Corrupt Practices
Actwhich provides:
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:
xxxx
(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 of
offices or government corporations charged with the grant of licenses or permits or other concessions.
In order to hold a person liable under this provision, the following elements must concur: (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 gross inexcusable negligence; and (3) his action caused any undue injury to any party, including
the government, or gave any private party unwarranted benefits, advantage or preference in the discharge of his
functions.26
As to the first element, there is no question that petitioners are public officers discharging official functions and that
jurisdiction over them lay with the Sandiganbayan. Jurisdiction of the Sandiganbayan over public officers charged with
violation of the Anti-Graft Law is provided under Section 4 of Presidential Decree No. 1606, 27 as amended by R.A. No.
8249.28 The pertinent portions of Section 4, P.D. No. 1606, as amended, read as follows:
SEC. 4. Jurisdiction.—The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act,
Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of
the accused are officials occupying the following positions in the government, whether in a permanent, acting or
interim capacity, at the time of the commission of the offense:
(1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as
Grade ‘27’ and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No.
6758), specifically including:
(a) Provincial governors, vice-governors, members of the sangguniang panlalawigan and provincial treasurers,
assessors, engineers and other provincial department heads[;]
xxxx
In cases where none of the accused are occupying positions corresponding to Salary Grade ‘27’ or higher, as
prescribed in the said Republic Act No. 6758, or military and PNP officers mentioned above, exclusive original
jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and
municipal circuit trial court, as the case may be, pursuant to their respective jurisdiction as provided in Batas
Pambansa Blg. 129, as amended.
xxxx
Thus, the jurisdiction of the Sandiganbayan over petitioner Ambil, Jr. is beyond question. The same is true as regards
petitioner Apelado, Sr. As to him, a Certification 29 from the Provincial Government Department Head of the HRMO
shows that his position as Provincial Warden is classified as Salary Grade 22. Nonetheless, it is only when none of the
accused are occupying positions corresponding to salary grade ‘27’ or higher shall exclusive jurisdiction be vested in
the lower courts. Here, petitioner Apelado, Sr. was charged as a co-principal with Governor Ambil, Jr., over whose
position the Sandiganbayan has jurisdiction. Accordingly, he was correctly tried jointly with said public officer in the
proper court which had exclusive original jurisdiction over them – the Sandiganbayan.
The second element, for its part, describes the three ways by which a violation of Section 3(e) of R.A. No. 3019 may
be committed, that is, through manifest partiality, evident bad faith or gross inexcusable negligence.
In Sison v. People,30 we defined "partiality," "bad faith" and "gross negligence" as follows:
"Partiality" is synonymous with "bias" which "excites a disposition to see and report matters as they are wished for
rather than as they are." "Bad faith does not simply connote bad judgment or negligence; it imputes a dishonest
purpose or some moral obliquity and conscious doing of a wrong; a breach of sworn duty through some motive or
intent or ill will; it partakes of the nature of fraud." "Gross negligence has been so defined as negligence characterized
by the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but
wilfully and intentionally with a conscious indifference to consequences in so far as other persons may be affected. It
is the omission of that care which even inattentive and thoughtless men never fail to take on their own property." x x
x31
In this case, we find that petitioners displayed manifest partiality and evident bad faith in transferring the detention of
Mayor Adalim to petitioner Ambil, Jr.’s house. There is no merit to petitioner Ambil, Jr.’s contention that he is
authorized to transfer the detention of prisoners by virtue of his power as the "Provincial Jailer" of Eastern Samar.
Section 28 of the Local Government Code draws the extent of the power of local chief executives over the units of the
Philippine National Police within their jurisdiction:
SEC. 28. Powers of Local Chief Executives over the Units of the Philippine National Police.—The extent of operational
supervision and control of local chief executives over the police force, fire protection unit, and jail management
personnel assigned in their respective jurisdictions shall be governed by the provisions of Republic Act Numbered
Sixty-nine hundred seventy-five (R.A. No. 6975), otherwise known as "The Department of the Interior and Local
Government Act of 1990," and the rules and regulations issued pursuant thereto.
In particular, Section 61, Chapter 5 of R.A. No. 6975 32 on the Bureau of Jail Management and Penology provides:
Sec. 61. Powers and Functions. - The Jail Bureau shall exercise supervision and control over all city and municipal
jails. The provincial jails shall be supervised and controlled by the provincial government within its jurisdiction,
whose expenses shall be subsidized by the National Government for not more than three (3) years after the effectivity
of this Act.
The power of control is the power of an officer to alter or modify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former for that of the latter. 33 An officer in control lays
down the rules in the doing of an act. If they are not followed, he may, in his discretion, order the act undone or re-
done by his subordinate or he may even decide to do it himself. 34
On the other hand, the power of supervision means "overseeing or the authority of an officer to see to it that the
subordinate officers perform their duties."35 If the subordinate officers fail or neglect to fulfill their duties, the official
may take such action or step as prescribed by law to make them perform their duties. Essentially, the power of
supervision means no more than the power of ensuring that laws are faithfully executed, or that subordinate officers
act within the law.36 The supervisor or superintendent merely sees to it that the rules are followed, but he does not lay
down the rules, nor does he have discretion to modify or replace them. 37
Significantly, it is the provincial government and not the governor alone which has authority to exercise control and
supervision over provincial jails. In any case, neither of said powers authorizes the doing of acts beyond the
parameters set by law. On the contrary, subordinates must be enjoined to act within the bounds of law. In the event
that the subordinate performs an act ultra vires, rules may be laid down on how the act should be done, but always in
conformity with the law.
In a desperate attempt to stretch the scope of his powers, petitioner Ambil, Jr. cites Section 1731, Article III of
the Administrative Code of 1917 on Provincial jails in support. Section 1731 provides:
SEC. 1731. Provincial governor as keeper of jail.—The governor of the province shall be charged with the
keeping of the provincial jail, and it shall be his duty to administer the same in accordance with law and the
regulations prescribed for the government of provincial prisons. The immediate custody and supervision of the
jail may be committed to the care of a jailer to be appointed by the provincial governor. The position of jailer shall be
regarded as within the unclassified civil service but may be filled in the manner in which classified positions are filled,
and if so filled, the appointee shall be entitled to all the benefits and privileges of classified employees, except that he
shall hold office only during the term of office of the appointing governor and until a successor in the office of the jailer
is appointed and qualified, unless sooner separated. The provincial governor shall, under the direction of the
provincial board and at the expense of the province, supply proper food and clothing for the prisoners; though
the provincial board may, in its discretion, let the contract for the feeding of the prisoners to some other person.
(Emphasis supplied.)
This provision survived the advent of the Administrative Code of 1987. But again, nowhere did said provision
designate the provincial governor as the "provincial jailer," or even slightly suggest that he is empowered to take
personal custody of prisoners. What is clear from the cited provision is that the provincial governor’s duty as a jail
keeper is confined to the administration of the jail and the procurement of food and clothing for the prisoners. After all,
administrative acts pertain only to those acts which are necessary to be done to carry out legislative policies and
purposes already declared by the legislative body or such as are devolved upon it 38 by the Constitution. Therefore, in
the exercise of his administrative powers, the governor can only enforce the law but not supplant it.
Besides, the only reference to a transfer of prisoners in said article is found in Section 1737 39 under which prisoners
may be turned over to the jail of the neighboring province in case the provincial jail be insecure or insufficient to
accommodate all provincial prisoners. However, this provision has been superseded by Section 3, Rule 114 of
the Revised Rules of Criminal Procedure, as amended. Section 3, Rule 114 provides:
SEC. 3. No release or transfer except on court order or bail.-No person under detention by legal process shall be
released or transferred except upon order of the court or when he is admitted to bail.
Indubitably, the power to order the release or transfer of a person under detention by legal process is vested in the
court, not in the provincial government, much less the governor. This was amply clarified by Asst. Sec. Ingeniero in his
communication40 dated October 6, 1998 addressed to petitioner Ambil, Jr. Asst. Sec. Ingeniero wrote:
06 October 1996
GOVERNOR RUPERTO AMBIL
Provincial Capitol
Borongan, Eastern Samar
Dear Sir:
This has reference to the letter of Atty. Edwin B. Docena, and the reports earlier received by this Department, relative
to your alleged action in taking into custody Mayor Francisco "Aising" Adalim of Taft, that province, who has been
previously arrested by virtue by a warrant of arrest issued in Criminal Case No. 10963.
If the report is true, it appears that your actuation is not in accord with the provision of Section 3, Rule 113 of the Rules
of Court, which mandates that an arrested person be delivered to the nearest police station or jail.
Moreover, invoking Section 61 of RA 6975 as legal basis in taking custody of the accused municipal mayor is
misplaced. Said section merely speaks of the power of supervision vested unto the provincial governor over provincial
jails. It does not, definitely, include the power to take in custody any person in detention.
In view of the foregoing, you are hereby enjoined to conduct yourself within the bounds of law and to immediately
deliver Mayor Adalim to the provincial jail in order to avoid legal complications.
Please be guided accordingly.
Very truly yours,
(SGD.)
JESUS I. INGENIERO
Assistant Secretary
Still, petitioner Ambil, Jr. insisted on his supposed authority as a "provincial jailer." Said petitioner’s usurpation of the
court's authority, not to mention his open and willful defiance to official advice in order to accommodate a former
political party mate,41 betray his unmistakable bias and the evident bad faith that attended his actions.
Likewise amply established beyond reasonable doubt is the third element of the crime. As mentioned above, in order
to hold a person liable for violation of Section 3(e), R.A. No. 3019, it is required that the act constituting the offense
consist of either (1) causing undue injury to any party, including the government, or (2) giving any private party any
unwarranted benefits, advantage or preference in the discharge by the accused of his official, administrative or judicial
functions.
In the case at hand, the Information specifically accused petitioners of giving unwarranted benefits and advantage to
Mayor Adalim, a public officer charged with murder, by causing his release from prison and detaining him instead at
the house of petitioner Ambil, Jr. Petitioner Ambil, Jr. negates the applicability of Section 3(e), R.A. No. 3019 in this
case on two points. First, Section 3(e) is not applicable to him allegedly because the last sentence thereof provides
that the "provision shall apply to officers and employees of offices or government corporations charged with the grant
of licenses, permits or other concessions" and he is not such government officer or employee. Second, the purported
unwarranted benefit was accorded not to a private party but to a public officer.
However, as regards his first contention, it appears that petitioner Ambil, Jr. has obviously lost sight, if he is not
altogether unaware, of our ruling in Mejorada v. Sandiganbayan42 where we held that a prosecution for violation of
Section 3(e) of the Anti-Graft Law will lie regardless of whether or not the accused public officer is "charged with the
grant of licenses or permits or other concessions." Following is an excerpt of what we said in Mejorada,
Section 3 cited above enumerates in eleven subsections the corrupt practices of any public officers (sic) declared
unlawful. Its reference to "any public officer" is without distinction or qualification and it specifies the acts declared
unlawful. We agree with the view adopted by the Solicitor General that the last sentence of paragraph [Section 3] (e) is
intended to make clear the inclusion of officers and employees of officers (sic) or government corporations which,
under the ordinary concept of "public officers" may not come within the term. It is a strained construction of the
provision to read it as applying exclusively to public officers charged with the duty of granting licenses or permits or
other concessions.43 (Italics supplied.)
In the more recent case of Cruz v. Sandiganbayan,44 we affirmed that a prosecution for violation of said provision will
lie regardless of whether the accused public officer is charged with the grant of licenses or permits or other
concessions.45
Meanwhile, regarding petitioner Ambil, Jr.’s second contention, Section 2(b) of R.A. No. 3019 defines a "public officer"
to include elective and appointive officials and employees, permanent or temporary, whether in the classified or
unclassified or exemption service receiving compensation, even nominal from the government. Evidently, Mayor
Adalim is one. But considering that Section 3(e) of R.A. No. 3019 punishes the giving by a public officer of
unwarranted benefits to a private party, does the fact that Mayor Adalim was the recipient of such benefits take
petitioners’ case beyond the ambit of said law?
We believe not.
In drafting the Anti-Graft Law, the lawmakers opted to use "private party" rather than "private person" to describe the
recipient of the unwarranted benefits, advantage or preference for a reason. The term "party" is a technical word
having a precise meaning in legal parlance46 as distinguished from "person" which, in general usage, refers to a
human being.47 Thus, a private person simply pertains to one who is not a public officer. While a private party is more
comprehensive in scope to mean either a private person or a public officer acting in a private capacity to protect his
personal interest.
In the present case, when petitioners transferred Mayor Adalim from the provincial jail and detained him at petitioner
Ambil, Jr.’s residence, they accorded such privilege to Adalim, not in his official capacity as a mayor, but as a detainee
charged with murder. Thus, for purposes of applying the provisions of Section 3(e), R.A. No. 3019, Adalim was a
private party.
Moreover, in order to be found guilty under the second mode, it suffices that the accused has given unjustified favor or
benefit to another in the exercise of his official, administrative or judicial functions. 48 The word "unwarranted" means
lacking adequate or official support; unjustified; unauthorized or without justification or adequate reason. "Advantage"
means a more favorable or improved position or condition; benefit, profit or gain of any kind; benefit from some course
of action. "Preference" signifies priority or higher evaluation or desirability; choice or estimation above another. 49
Without a court order, petitioners transferred Adalim and detained him in a place other than the provincial jail. The
latter was housed in much more comfortable quarters, provided better nourishment, was free to move about the house
and watch television. Petitioners readily extended these benefits to Adalim on the mere representation of his lawyers
that the mayor’s life would be put in danger inside the provincial jail.
As the Sandiganbayan ruled, however, petitioners were unable to establish the existence of any risk on Adalim’s
safety. To be sure, the latter would not be alone in having unfriendly company in lockup. Yet, even if we treat Akyatan’s
gesture of raising a closed fist at Adalim as a threat of aggression, the same would still not constitute a special and
compelling reason to warrant Adalim’s detention outside the provincial jail. For one, there were nipa huts within the
perimeter fence of the jail which could have been used to separate Adalim from the rest of the prisoners while the
isolation cell was undergoing repair. Anyhow, such repair could not have exceeded the 85 days that Adalim stayed in
petitioner Ambil, Jr.’s house. More importantly, even if Adalim could have proven the presence of an imminent peril on
his person to petitioners, a court order was still indispensable for his transfer.
The foregoing, indeed, negates the application of the justifying circumstances claimed by petitioners.
Specifically, petitioner Ambil, Jr. invokes the justifying circumstance of fulfillment of duty or lawful exercise of right or
office. Under paragraph 5, Article 11 of the RPC, any person who acts in the fulfillment of a duty or in the lawful
exercise of a right or office does not incur any criminal liability. In order for this justifying circumstance to apply, two
requisites must be satisfied: (1) the accused acted in the performance of a duty or in the lawful exercise of a right or
office; and (2) the injury caused or the offense committed be the necessary consequence of the due performance of
duty or the lawful exercise of such right or office.50 Both requisites are lacking in petitioner Ambil, Jr.’s case.
As we have earlier determined, petitioner Ambil, Jr. exceeded his authority when he ordered the transfer and detention
of Adalim at his house. Needless to state, the resulting violation of the Anti-Graft Law did not proceed from the due
performance of his duty or lawful exercise of his office.
In like manner, petitioner Apelado, Sr. invokes the justifying circumstance of obedience to an order issued for some
lawful purpose. Under paragraph 6, Article 11 of the RPC, any person who acts in obedience to an order issued by a
superior for some lawful purpose does not incur any criminal liability. For this justifying circumstance to apply, the
following requisites must be present: (1) an order has been issued by a superior; (2) such order must be for some
lawful purpose; and (3) the means used by the subordinate to carry out said order is lawful. 51 Only the first requisite is
present in this case.
While the order for Adalim’s transfer emanated from petitioner Ambil, Jr., who was then Governor, neither said order
nor the means employed by petitioner Apelado, Sr. to carry it out was lawful. In his capacity as the Provincial Jail
Warden of Eastern Samar, petitioner Apelado, Sr. fetched Mayor Adalim at the provincial jail and, unarmed with a court
order, transported him to the house of petitioner Ambil, Jr. This makes him liable as a principal by direct participation
under Article 17(1)52 of the RPC.
An accepted badge of conspiracy is when the accused by their acts aimed at the same object, one performing one
part of and another performing another so as to complete it with a view to the attainment of the same object, and their
acts although apparently independent were in fact concerted and cooperative, indicating closeness of personal
association, concerted action and concurrence of sentiments. 53
Conspiracy was sufficiently demonstrated by petitioner Apelado, Sr.’s willful cooperation in executing petitioner Ambil,
Jr.’s order to move Adalim from jail, despite the absence of a court order. Petitioner Apelado, Sr., a law graduate,
cannot hide behind the cloak of ignorance of the law. The Rule requiring a court order to transfer a person under
detention by legal process is elementary. Truth be told, even petitioner governor who is unschooled in the intricacies of
the law expressed reservations on his power to transfer Adalim. All said, the concerted acts of petitioners Ambil, Jr.
and Apelado, Sr. resulting in the violation charged, makes them equally responsible as conspirators.
As regards the penalty imposed upon petitioners, Section 9(a) of R.A. No. 3019 punishes a public officer or a private
person who violates Section 3 of R.A. No. 3019 with imprisonment for not less than six (6) years and one (1) month to
not more than fifteen (15) years and perpetual disqualification from public office. Under Section 1 of the Indeterminate
Sentence Law or Act No. 4103, as amended by Act No. 4225, if the offense is punished by a special law, the court
shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum
fixed by said law and the minimum shall not be less than the minimum term prescribed by the same.1avvphi1
Thus, the penalty imposed by the Sandiganbayan upon petitioner Ambil, Jr. of imprisonment for nine (9) years, eight
(8) months and one (1) day to twelve (12) years and four (4) months is in accord with law. As a co-principal without the
benefit of an incomplete justifying circumstance to his credit, petitioner Apelado, Sr. shall suffer the same penalty.
WHEREFORE, the consolidated petitions are DENIED. The Decision of the Sandiganbayan in Criminal Case No.
25892 is AFFIRMED WITH MODIFICATION. We find petitioners Ruperto A. Ambil, Jr. and Alexandrino R. Apelado, Sr.
guilty beyond reasonable doubt of violating Section 3(e), R.A. No. 3019. Petitioner Alexandrino R. Apelado, Sr. is,
likewise, sentenced to an indeterminate penalty of imprisonment for nine (9) years, eight (8) months and one (1) day
to twelve (12) years and four (4) months.
With costs against the petitioners.
SO ORDERED.

VENANCIO R. NAVA vs. Honorable Justices RODOLFO PALATTAO, GREGORY ONG, and MA. CRISTINA
CORTEZ-ESTRADA as Members of the Sandiganbayan’s 4th Division, and the PEOPLE OF THE PHILIPPINES.
G.R. No. 160211 August 28, 2006
PANGANIBAN, CJ:
A meticulous review of the records and the evidence establishes the guilt of the accused beyond reasonable doubt.
Clearly, the prosecution was able to prove all the elements of the crime charged. Hence, the conviction of petitioner is
inevitable.
The Case
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court, assailing the June 2, 2003 Decision 2 and
1

September 29, 2003 Resolution of the Sandiganbayan in Criminal Case No. 23627. The dispositive portion of the
challenged Decision reads:
"WHEREFORE, premises considered, judgment is hereby rendered convicting accused VENANCIO NAVA Y
RODRIGUEZ of the crime of violation of the Anti-Graft and Corrupt Practices Act particularly Section 3(g) thereof, or
entering on behalf of government in any contract or transaction manifestly and grossly disadvantageous to the same
whether or not the pubic officer profited or will profit thereby. In the absence of any aggravating or mitigating
circumstances, applying the Indeterminate Sentence Law, accused is hereby sentenced to suffer the penalty of
imprisonment of six (6) years, and one (1) day as minimum to twelve (12) years and one (1) day as maximum and to
suffer perpetual disqualification from public office. Accused Nava is further ordered to pay the government the amount
of P380,013.60 which it suffered by way of damages because of the unlawful act or omission committed by the herein
accused Venancio Nava.
"From the narration of facts, there hardly appears any circumstance that would suggest the existence of conspiracy
among the other accused in the commission of the crime.
"Thus in the absence of conspiracy in the commission of the crime complained of and as the herein other accused
only acted upon the orders of accused Venancio Nava, in the absence of any criminal intent on their part to violate the
law, the acts of the remaining accused are not considered corrupt practices committed in the performance of their
duties as public officers and consequently, accused AJATIL JAIRAL Y PONGCA, ROSALINDA MERKA Y GUANZON
& JOSEPH VENTURA Y ABAD are hereby considered innocent of the crime charged and are hereby acquitted." 3
The assailed Resolution dated September 29, 2003, denied reconsideration.
The Facts
The Sandiganbayan narrated the facts of this case as follows:
"The complaint involving the herein accused was initiated by the COA, Region XI, Davao City, which resulted from an
audit conducted by a team which was created by the COA Regional Office per COA Regional Assignment Order No.
91-74 dated January 8, 1991. The objective of the team [was] to conduct an audit of the 9.36 million allotment which
was released in 1990 by the DECS, Region XI to its Division Offices.
"In the Audit Report, the amount of P603,265.00 was shown to have been released to the DECS Division of Davao del
Sur for distribution to the newly nationalized high schools located within the region. Through the initiative of accused
Venancio Nava, a meeting was called among his seven (7) schools division superintendents whom he persuaded to
use the money or allotment for the purchase of Science Laboratory Tools and Devices (SLTD). In other words, instead
of referring the allotment to the one hundred fifty-five (155) heads of the nationalized high schools for the improvement
of their facilities, accused Nava succeeded in persuading his seven (7) schools division superintendents to use the
allotment for the purchase of science education facilities for the calendar year 1990.
"In the purchase of the school materials, the law provides that the same shall be done through a public bidding
pursuant to Circular No. 85-55, series of 1985. But in the instant case, evidence shows that accused Nava persuaded
his seven (7) schools division superintendents to ignore the circular as allegedly time was of the essence in making
the purchases and if not done before the calendar year 1990, the funds allotted will revert back to the general fund.
"In the hurried purchase of SLTD’s, the provision on the conduct of a public bidding was not followed. Instead the
purchase was done through negotiation. Evidence shows that the items were purchased from Joven’s Trading, a
business establishment with principal address at Tayug, Pangasinan; D’[I]mplacable Enterprise with principal business
address at 115 West Capitol Drive, Pasig, Metro Manila and from Evelyn Miranda of 1242 Oroqueta Street, Sta. Cruz,
Manila. As disclosed by the audit report, the prices of the [SLTDs] as purchased from the above-named sellers
exceeded the prevailing market price ranging from 56% to 1,175% based on the mathematical computation done by
the COA audit team. The report concluded that the government lost P380,013.60. That the injury to the government as
quantified was the result of the non-observance by the accused of the COA rules on public bidding and DECS Order
No. 100 suspending the purchases of [SLTDs]." 4
The Commission on Audit (COA) Report recommended the filing of criminal and administrative charges against the
persons liable, including petitioner, before the Office of the Ombudsman-Mindanao.
Petitioner was subsequently charged in an Information 5 filed on April 8, 1997, worded as follows:
"That on or about the period between November to December 1990, and for sometime prior or subsequent thereto, in
Digos, Davao Del Sur and/or Davao City, Philippines and within the jurisdiction of this Honorable Court, the accused
Venancio R. Nava (DECS-Region XI Director) and Ajatil Jairal (Division Superintendent, DECS, Davao del Sur), both
high[-]ranking officials and Rosalinda Merka, and Teodora Indin (Administrative Officer and Assistant Division
Superintendent, respectively of DECS-Division of Davao Del Sur), all low ranking officials, while in the discharge of
their respective official functions, committing the offense in relation to their office and with grave abuse [of] authority,
conniving and confederating with one another, did then and there willfully, unlawfully and feloniously enter, on behalf of
the government, into transactions with D’Implacable Enterprise and Joven’s Trading, respectively, represented by
accused Antonio S. Tan and Evelyn Miranda and Joseph Ventura for the purchase of Science Laboratory Tools and
Devices (SLTD) intended for use by the public high schools in the area amounting to [P603,265.00], Philippine
currency, without the requisite public bidding and in violation of DECS Order No. 100, Series of 1990, which
transaction involved an overprice in the amount of P380,013.60 and thus, is manifestly and grossly disadvantageous
to the government." 6
Special Prosecution Officer II Evelyn T. Lucero-Agcaoili recommended the dismissal of the foregoing Information on
the ground, among others, that there was no probable cause. She argued that only estimates were made to show the
discrepancy of prices instead of a comparative listing on an item to item basis. 7 The recommendation was
disapproved, however, by then Ombudsman Aniano A. Desierto.
Ruling of the Sandiganbayan
8
After due trial, only petitioner was convicted, while all the other accused were acquitted.
Petitioner was found guilty of violating Section 3(g) of the Anti-Graft and Corrupt Practices Act, or entering on behalf of
the government any contract or transaction manifestly and grossly disadvantageous to the latter, whether or not the
public officer profited or would profit thereby.
The Sandiganbayan (SBN) said that, in the purchase of the Science Laboratory Tools and Devices (SLTDs), petitioner
had not conducted a public bidding in accordance with COA Circular No. 85-55A. As a result, the prices of the SLTDs,
as purchased, exceeded the prevailing market price from 56 percent to 1,175 percent, based on the mathematical
computations of the COA team. 9 In his defense, petitioner had argued that the said COA Circular was merely
directory, not mandatory. Further, the purchases in question had been done in the interest of public service. 10
The Sandiganbayan did not give credence to the foregoing defenses raised by petitioner. On the contrary, it found the
evidence adduced by petitioner’s co-accused, Superintendent Ajatil Jairal, to be "enlightening," manifesting an
intricate web of deceit spun by petitioner and involving all the other superintendents in the process. 11
The graft court did not accept the claim of petitioner that he signed the checks only after the other signatories had
already signed them. The evidence showed that blank Philippine National Bank (PNB) checks had been received by
Nila E. Chavez, a clerk in the regional office, for petitioner’s signature. The
Sandiganbayan opined that the evidence amply supported Jairal’s testimony that the questioned transactions had
emanated from the regional office, as in fact, all the documents pertinent to the transaction had already been prepared
and signed by petitioner when the meeting with the superintendents was called sometime in August 1990. 12
In that meeting, the superintendents were given prepared documents like the Purchase Orders and vouchers, together
with the justification. 13 This circumstance prompted Jairal to conduct his own canvass. The Sandiganbayan held that
this act was suggestive of the good faith of Jairal, thereby negating any claim of conspiracy with the other co-accused
and, in particular, petitioner.
In its assailed Resolution, the SBN denied petitioner’s Motion for Reconsideration. It held that the series of acts
culminating in the questioned transactions constituted violations of Department of Education, Culture and Sports
(DECS) Order No. 100; and COA Circular No. 85-55A. Those acts, ruled the SBN, sufficiently established that the
contract or transaction entered into was manifestly or grossly disadvantageous to the government.
Hence, this Petition. 14
The Issues
Petitioner raises the following issues for our consideration:
"I. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction
in upholding the findings of the Special Audit Team that irregularly conducted the audit beyond the authorized period
and which team falsified the Special Audit Report.
"II. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction
in upholding the findings in the special audit report where the Special Audit Team egregiously failed to comply with the
minimum standards set by the Supreme Court and adopted by the Commission on Audit in violation of petitioner’s
right to due process, and which report suppressed evidence favorable to the petitioner.
"III. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of
jurisdiction in upholding the findings in the Special Audit Report considering that none of the allegedly overpriced items
were canvassed or purchased by the Special Audit Team such that there is no competent evidence from which to
determine that there was an overprice and that the transaction was manifestly and grossly disadvantageous to the
government.
"IV. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of
jurisdiction in finding that there was an overprice where none of the prices of the questioned items exceeded the
amount set by the Department of Budget and Management.
"V. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction
in selectively considering the findings in the decision in Administrative Case No. XI-91-088 and failing to consider the
findings thereon that petitioner was justified in undertaking a negotiated purchase and that there was no overpricing.
"VI. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of
jurisdiction in selectively considering the findings of XI-91-088 and failing to consider the findings thereon that
petitioner was justified in undertaking a negotiated purchase, there was no overpricing, and that the purchases did not
violate DECS Order No. 100.
"VII. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of
jurisdiction in failing to absolve the petitioner where conspiracy was not proven and the suppliers who benefited from
the alleged overpricing were acquitted.
"VIII. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of
jurisdiction in admitting in evidence and giving probative value to Exhibit ‘8’ the existence and contents of which are
fictitious.
"IX. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of
jurisdiction in giving credence to the self-serving and perjurious testimony of co-accused Ajatil Jairal that the
questioned transactions emanated from the regional office [in spite] of the documentary evidence and the testimony of
the accused supplier which prove that the transaction emanated from the division office of Digos headed by co-
accused Ajatil Jairal.
"X. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction
in finding that the petitioner entered into a transaction that was manifestly and grossly disadvantageous to the
government where the evidence clearly established that the questioned transactions were entered into by the division
office of Digos through co-accused Ajatil Jairal.
"XI. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of
jurisdiction in convicting the petitioner in the absence of proof beyond reasonable doubt." 15
All these issues basically refer to the question of whether the Sandiganbayan committed reversible errors (not grave
abuse of discretion) in finding petitioner guilty beyond reasonable doubt of violation of Section 3(g), Republic Act No.
3019.
The Court’s Ruling
The Petition has no merit.
Procedural Issue:
Propriety of Certiorari
At the outset, it must be stressed that to contest the Sandiganbayan’s Decision and Resolution on June 2, 2003 and
September 29, 2003, respectively, petitioner should have filed a petition for review on certiorari under Rule 45, not the
present Petition for Certiorari under Rule 65. Section 7 of Presidential Decree No. 1606, 16 as amended by Republic
Act No. 8249, 17 provides that "[d]ecisions and final orders of the Sandiganbayan shall be appealable to the Supreme
Court by petition for review on certiorari raising pure questions of law in accordance with Rule 45 of the Rules of
Court." Section 1 of Rule 45 of the Rules of Court likewise provides that "[a] party desiring to appeal by certiorari from
a judgment or final order or resolution of the x x x Sandiganbayan x x x whenever authorized by law, may file with the
Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be
distinctly set forth."
Basic is the principle that when Rule 45 is available, recourse under Rule 65 cannot be allowed either as an add-on or
as a substitute for appeal. 18 The special civil action for certiorari is not and cannot be a substitute for an appeal, when
the latter remedy is available. 19
This Court has consistently ruled that a petition for certiorari under Rule 65 lies only when there is no appeal or any
other plain, speedy and adequate remedy in the ordinary course of law. 20 A remedy is considered plain, speedy and
adequate if it will promptly relieve the petitioner from the injurious effects of the judgment and the acts of the lower
court or agency or as in this case, the Sandiganbayan. 21 Since the assailed Decision and Resolution were
dispositions on the merits, and the Sandiganbayan had no remaining issue to resolve, an appeal would have been the
plain, speedy and adequate remedy for petitioner.
To be sure, the remedies of appeal and certiorari are mutually exclusive and not alternative or successive. 22 For this
procedural lapse, the Petition should have been dismissed outright.
Nonetheless, inasmuch as it was filed within the 15-day period provided under Rule 45, the Court treated it as a
petition for review (not certiorari) under Rule 45 in order to accord substantial justice to the parties. Thus, it was given
due course and the Court required the parties to file their Memoranda.
Main Issue:
 Sufficiency of Evidence
Petitioner argues that the Sandiganbayan erred in convicting him, because the pieces of evidence to support the
charges were not convincing. Specifically, he submits the following detailed argumentation:
"1. the Special Audit Report was fraudulent, incomplete, irregular, inaccurate, illicit and suppressed evidence in favor
of the Petitioner;
"2. there was no competent evidence to determine the overprice as none of the samples secured by the audit team
from the Division of Davao del Sur were canvassed or purchased by the audit team;
"3. the allegedly overpriced items did not exceed the amount set by the Department of Budget and Management;
"4. the decision in an administrative investigation were selectively lifted out of context;
"5. the administrative findings that Petitioner was justified in undertaking a negotiated purchase, that there was no
overpricing, and that the purchases did not violate DECS Order No. 100 were disregarded;
"6. Exhibit ‘8’, the contents of which are fictitious, was admitted in evidence and given probative value;
"7. The suppliers who benefited from the transactions were acquitted, along with the other accused who directly
participated in the questioned transactions; and
"8. The self-serving and perjury-ridden statements of co-accused Jairal were given credence despite documentary and
testimonial evidence to the contrary." 23
Petitioner further avers that the findings of fact in the Decision dated October 21, 1996 in DECS Administrative Case
No. XI-91-088 24 denied any overpricing and justified the negotiated purchases in lieu of a public bidding. 25 Since
there was no overpricing and since he was justified in undertaking the negotiated purchase, petitioner submits that he
cannot be convicted of violating Section 3(g) of Republic Act No. 3019.
Validity of Audit
The principal evidence presented during trial was the COA Special Audit Report (COA Report). The COA is the agency
specifically given the power, authority and duty to examine, audit and settle all accounts pertaining to the revenue and
receipts of, and expenditures or uses of fund and property owned by or pertaining to the government. 26 It has the
exclusive authority to define the scope of its audit and examination and to establish the required techniques and
methods. 27
Thus, COA’s findings are accorded not only respect but also finality, when they are not tainted with grave abuse of
discretion. 28 Only upon a clear showing of grave abuse of discretion may the courts set aside decisions of government
agencies entrusted with the regulation of activities coming under their special technical knowledge and training. 29 In
this case, the SBN correctly accorded credence to the COA Report. As will be shown later, the Report can withstand
legal scrutiny.
Initially, petitioner faults the audit team for conducting the investigation beyond the twenty-one day period stated in the
COA Regional Office Assignment Order No. 91-174 dated January 8, 1991. But this delay by itself did not destroy the
credibility of the Report. Neither was it sufficient to constitute fraud or indicate bad faith on the part of the audit team.
Indeed, in the conduct of an audit, the length of time the actual examination occurs is dependent upon the documents
involved. If the documents are voluminous, then it necessarily follows that more time would be needed. 30 What is
important is that the findings of the audit should be sufficiently supported by evidence.
Petitioner also imputes fraud to the audit team for making "it appear that the items released by the Division Office of
Davao Del Sur on 21 February 1991 were compared with and became the basis for the purchase of exactly the same
items on 20 February 1991." 31
The discrepancy regarding the date when the samples were taken and the date of the purchase of the same items for
comparison was not very material. The discrepancy per se did not constitute fraud in the absence of ill motive. We
agree with respondents in their claim of clerical inadvertence. We accept their explanation that the wrong date was
written by the supplier concerned when the items were bought for comparison. Anyway, the logical sequence of events
was clearly indicated in the COA Report:
"1.5.1. Obtained samples of each laboratory tools and devices purchased by the Division of Davao del Sur,
Memorandum Receipts covering all the samples were issued by the agency to the audit team and are marked as
Exhibits 1.2 and 3 of this Report."
"1.5.2. Bought and presented these samples to reputable business establishments in Davao City like Mercury Drug
Store, Berovan Marketing Incorporated and [A]llied Medical Equipment and Supply Corporation (AMESCO) where
these items are also available, for price verification.
"1.5.3. Available items which were exactly the same as the samples presented were purchased from AMESCO and
Berovan Marketing Incorporated, the business establishments which quoted the lowest prices. Official receipts were
issued by the AMESCO and Berovan Marketing Incorporated which are hereto marked as Exhibits 4,5,6 and 7
respectively." 32
33
The COA team then tabulated the results as follows:
 Recanvassed
% of Total
Purchased Price + 10% Over- Quantity Amount of
Item Unit Cost Allow. Difference pricing Purchased Overpricing
Flask Brush made
of Nylon P112.20 P8.80 P103.40 1,175% 400 P41,360.00
Test Tube Glass
Pyrex (18x50 mm) 22.36 14.30 8.06 56% 350 2,821.00
Graduated Cylinder
Pyrex (100ml) 713.00 159.50 553.50 347% 324 179,334.00
Glass Spirit Burner
(alcohol lamp) 163.50 38.50 125.00 325% 144 18,000.00
Spring Balance
(12.5kg)Germany 551.00 93.50 457.50 489% 102 46,665.00
Iron Wire Gauge 16.20 9.90 6.30 64% 47 296.10
Bunsen Burner 701.00 90.75 610.25 672% 150 91,537.50
Total P380,013.60
What is glaring is the discrepancy in prices. The tabulated figures are supported by Exhibits "E-1," "E-2," "E-3," and
"E-4," the Official Receipts evidencing the equipment purchased by the audit team for purposes of comparison with
those procured by petitioner. 34 The authenticity of these Exhibits is not disputed by petitioner. As the SBN stated in its
Decision, the fact of overpricing -- as reflected in the aforementioned exhibits -- was testified to or identified by Laura
S. Soriano, team leader of the audit team. 35 It is hornbook doctrine that the findings of the trial court are accorded
great weight, since it was able to observe the demeanor of witnesses firsthand and up close. 36 In the absence of
contrary evidence, these findings are conclusive on this Court.
It was therefore incumbent on petitioner to prove that the audit team or any of its members thereof was so motivated
by ill feelings against him that it came up with a fraudulent report. Since he was not able to show any evidence to this
end, his contention as to the irregularity of the audit due to the discrepancy of the dates involved must necessarily fail.
An audit is conducted to determine whether the amounts allotted for certain expenditures were spent wisely, in
keeping with official guidelines and regulations. It is not a witch hunt to terrorize accountable public officials. The
presumption is always that official duty has been regularly performed 37 -- both on the part of those involved with the
expense allotment being audited and on the part of the audit team -- unless there is evidence to the contrary.
Due Process
Petitioner likewise invokes Arriola v. Commission on Audit 38 to support his claim that his right to due process was
violated. In that case, this Court ruled that the disallowance made by the COA was not sufficiently supported by
evidence, as it was based on undocumented claims. Moreover, in Arriola, the documents that were used as basis of
the COA Decision were not shown to petitioners, despite their repeated demands to see them. They were denied
access to the actual canvass sheets or price quotations from accredited suppliers.
As the present petitioner pointed out in his Memorandum, the foregoing jurisprudence became the basis for the COA
to issue Memorandum Order No. 97-012 dated March 31, 1997, which states:
"3.2 To firm up the findings to a reliable degree of certainty, initial findings of overpricing based on market price
indicators mentioned in pa. 2.1 above have to be supported with canvass sheet and/or price quotations indicating:
a) the identities of the suppliers or sellers;
b) the availability of stock sufficient in quantity to meet the requirements of the procuring agency;
c) the specifications of the items which should match those involved in the finding of overpricing;
d) the purchase/contract terms and conditions which should be the same as those of the questioned transaction"
Petitioner’s reliance on Arriola is misplaced. First, that Decision, more so, the COA Memorandum Order that was
issued pursuant to the former, was promulgated after the period when the audit in the present case was conducted.
Neither Arriola nor the COA Memorandum Order can be given any retroactive effect.
Second and more important, the circumstances in Arriola are different from those in the present case. In the earlier
case, the COA merely referred to a cost comparison made by the engineer of COA-Technical Services Office (TSO),
based on unit costs furnished by the Price Monitoring Division of the COA-TSO. The COA even refused to show the
canvass sheets to the petitioners, explaining that the source document was confidential.
In the present case, the audit team examined several documents before they arrived at their conclusion that the
subject transactions were grossly disadvantageous to the government. These documents were included in the Formal
Offer of Evidence submitted to the Sandiganbayan. 39 Petitioner was likewise presented an opportunity to controvert
the findings of the audit team during the exit conference held at the end of the audit, but he failed to do so. 40
Further, the fact that only three canvass sheets/price quotations were presented by the audit team does not bolster
petitioner’s claim that his right to due process was violated. To be sure, there is no rule stating that all price canvass
sheets must be presented. It is enough that those that are made the basis of comparison be submitted for scrutiny to
the parties being audited. Indubitably, these documents were properly submitted and testified to by the principal
prosecution witness, Laura Soriano. Moreover, petitioner had ample opportunity to controvert them.
Public Bidding
Petitioner oscillates between denying that he was responsible for the procurement of the questioned SLTDs, on the
one hand; and, on the other, stating that the negotiated purchase was justifiable under the circumstances.
On his disavowal of responsibility for the questioned procurement, he claims that the transactions emanated from the
Division Office of Digos headed by Jairal. 41 However, in the administrative case 42 filed against petitioner before the
DECS, it was established that he "gave the go signal" 43 that prompted the division superintendents to procure the
SLTDs through negotiated purchase. This fact is not disputed by petitioner, who quotes the same DECS Decision in
stating that his "acts were justifiable under the circumstances then obtaining at that time and for reasons of efficient
and prompt distribution of the SLTDs to the high schools." 44
In justifying the negotiated purchase without public bidding, petitioner claims that "any delay in the enrichment of the
minds of the public high school students of Davao del Sur is detrimental and antithetical to public service." 45Although
this reasoning is quite laudable, there was nothing presented to substantiate it.
Executive Order No. 301 states the general rule that no contract for public services or for furnishing supplies,
materials and equipment to the government or any of its branches, agencies or instrumentalities may be renewed or
entered into without public bidding. The rule however, is not without exceptions. Specifically, negotiated contracts may
be entered into under any of the following circumstances:
"a. Whenever the supplies are urgently needed to meet an emergency which may involve the loss of, or danger to, life
and/or property;
"b. Whenever the supplies are to be used in connection with a project or activity which cannot be delayed without
causing detriment to the public service;
"c. Whenever the materials are sold by an exclusive distributor or manufacturer who does not have subdealers selling
at lower prices and for which no suitable substitute can be obtained elsewhere at more advantageous terms to the
government;
"d. Whenever the supplies under procurement have been unsuccessfully placed on bid for at least two consecutive
times, either due to lack of bidders or the offers received in each instance were exorbitant or non-conforming to
specifications;
"e. In cases where it is apparent that the requisition of the needed supplies through negotiated purchase is most
advantageous to the government to be determined by the Department Head concerned;
46
"f. Whenever the purchase is made from an agency of the government."
National Center for Mental Health v. Commission on Audit 47 upheld the validity of the negotiated contracts for the
renovation and the improvement of the National Center for Mental Health. In that case, petitioners were able to show
that the long overdue need to renovate the Center "made it compelling to fast track what had been felt to be essential
in providing due and proper treatment and care for the center’s patients." 48
This justification was likewise accepted in Baylon v. Ombudsman 49 in which we recognized that the purchases were
made in response to an emergency brought about by the shortage in the blood supply available to the public. The
shortage was a matter recognized and addressed by then Secretary of Health Juan M. Flavier, who attested that "he
directed the NKTI [National Kidney and Transplant Institute] to do something about the situation and immediately fast-
track the implementation of the Voluntary Blood Donation Program of the government in order to prevent further
deaths owing to the lack of blood." 50
Unfortunately for petitioner, there was no showing of any immediate and compelling justification for dispensing with the
requirement of public bidding. We cannot accept his unsubstantiated reasoning that a public bidding would
unnecessarily delay the purchase of the SLTDs. Not only would he have to prove that indeed there would be a delay
but, more important, he would have to show how a public bidding would be detrimental and antithetical to public
service.
As the COA Report aptly states, the law on public bidding is not an empty formality. It aims to secure the lowest
possible price and obtain the best bargain for the government. It is based on the principle that under ordinary
circumstances, fair competition in the market tends to lower prices and eliminate favoritism. 51
In this case, the DECS Division Office of Davao del Sur failed to conduct public bidding on the subject transactions.
The procurement of laboratory tools and devices was consummated with only the following documents to compensate
for the absence of a public bidding:
"1.13.a Price lists furnished by the Supply Coordination Office
1.13.b. Price lists furnished by the Procurement Services of the Department of Budget and Management
52
1.13.c. Price lists of Esteem Enterprises"
The COA Report states that the Division Office merely relied on the above documents as basis for concluding that the
prices offered by D’Implacable Enterprises and Joven’s Trading were reasonable. But as found by the COA, reliance
on the foregoing supporting documents was completely without merit on the following grounds:
"a. The Supply Coordination Office was already dissolved or abolished at the time when the transactions were
consummated, thus, it is illogical for the management to consider the price lists furnished by the Supply Coordination
Office.
"b. The indorsement letter made by the Procurement Services of the Department of Budget and Management
containing the price lists specifically mentions Griffin and George brands, made in England. However, the
management did not procure these brands of [SLTDs].
"c. The price lists furnished by the Esteem Enterprises does not deserve the scantest consideration, since there is no
law or regulation specifically mentioning that the price lists of the Esteem Enterprises will be used as basis for buying
[SLTDs]." 53
Granting arguendo that petitioner did not have a hand in the procurement and that the transactions emanated from the
Division Office of Davao del Sur, we still find him liable as the final approving authority. In fact, Exhibit "B-2" --
Purchase Order No. 90-024, amounting to P231,012 and dated December 17, 1990 -- was recommended by Jairal
and approved by petitioner. 54 This exhibit was part of the evidence adduced in the Sandiganbayan to prove that the
purchase of the SLTDs was consummated and duly paid by the DECS without any proof of public bidding.
Although this Court has previously ruled 55 that all heads of offices have to rely to a reasonable extent on their
subordinates and on the good faith of those who prepare bids, purchase supplies or enter into negotiations, it is not
unreasonable to expect petitioner to exercise the necessary diligence in making sure at the very least, that the proper
formalities in the questioned transaction were observed -- that a public bidding was conducted. This step does not
entail delving into intricate details of product quality, complete delivery or fair and accurate pricing.
Unlike other minute requirements in government procurement, compliance or non-compliance with the rules on public
bidding is readily apparent; and the approving authority can easily call the attention of the subordinates concerned. To
rule otherwise would be to render meaningless the accountability of high-ranking public officials and to reduce their
approving authority to nothing more than a mere rubber stamp. The process of approval is not a ministerial duty of
approving authorities to sign every document that comes across their desks, and then point
to their subordinates as the parties responsible if something goes awry.
Suspension of Purchases
Obviously working against petitioner is DECS Order No. 100 dated September 3, 1990 which states thus:
"In view of the Government’s call for economy measures coupled with the deficiency in allotments intended for the
payment of salary standardization, retirement benefits, bonus and other priority items, the procurement of reference
and supplementary materials, tools and devices equipment, furniture, including land acquisition and land improvement
shall be suspended for CY 1990. However, the following items shall be exempted from the said suspension:
a) textbooks published by the Instructional Materials Corporation and its commercial edition;
b) elementary school desks and tablet arm chairs[.]"
As the COA Report succinctly states, the Administrative Order is explicit in its provisions that tools and devices were
among the items whose procurement was suspended by the DECS for the year 1990.
Petitioner claims that in the administrative case against him, there was no mention of a violation of DECS Order No.
100. 56 He alleges that the purchases of SLTDs by the division superintendents were entered into and perfected on
July 1, 1990; that is, more than two (2) months before the issuance of DECS Order No. 100. He also alleged that the
Sub-Allotment Advice (SAA) to the DECS Regional Office No. XI in the amount of P9.36M -- out of which P603,265.00
was used for the procurement of the questioned SLTDs -- had been released by the DECS Central Office in August
1990, a month before the issuance of DECS Order No. 100.
The Court notes that these arguments are mere assertions bereft of any proof. There was no evidence presented to
prove that the SAA was issued prior to the effectivity of DECS Order No. 100. On the other hand, the COA Report
states that the DECS Division of Davao del Sur received the following Letters of Advice of Allotments (LAA): 57
"LAA NO. AMOUNT DATE OF LAA
DO CO471-774-90 P141,956.00 October 24, 1990
DO-CO471-797-90 P161,309.00 November 16, 1990
DO-CO471-1007-90 P300,000.00 December 14, 1990"
 58
The foregoing LAAs were attached as annexes to the COA Report and were presented during trial in the
Sandiganbayan. 59
Also, Schools Division Superintendent Jairal had sent a letter to petitioner, requesting favorable consideration of a
forthcoming release of funding for the different barangay and municipal high schools. The letter was dated October 16,
1990, 60 and was made well within the effectivity of the DECS Order. In that letter, Jairal mentioned the receipt by his
office of DECS Order No. 100, albeit wrongly interpreting it as suspending only the purchases of reference books,
supplementary readers, and so on, but allegedly silent on the purchase of laboratory supplies and materials. 61
Finally, the SLTDs were purchased within the covered period of DECS Order No. 100, as evidenced by the following
relevant
documents adduced by the COA audit team, among others:
1) Disbursement Voucher dated November 27, 1990 for the payment of various laboratory supplies and materials by
DECS, Davao del Sur in the amount of P303,29.40 62
63
2) Official Receipt No. 455 dated January 7, 1991 amounting to P68,424.00 issued by Joven’s Trading
64
3) Report of Inspection dated November 26, 1990 signed by Jacinta Villareal and Felicisimo Canoy
4) Sales Invoice No. 044 dated November 26, 1990 issued by Joven’s Trading in favor of DECS amounting
to P303,259.40 65
66
5) Certificate of Acceptance dated November 27, 1990 signed by Felicismo Canoy
6) Purchase Order No. 90-021 in favor of Joven’s Trading dated November 26, 1990 recommended for approval by
Ajatil Jairal 67
7) Official Receipt No. 92356 dated January 7, 1991 issued by D’Implacable Enterprises amounting to P231,012.0068
8) Purchase Order No. 90-024 dated December 17, 1990 recommended for approval by Ajatil Jairal and approved
Director Venancio Nava amounting to P231,012.00." 69
The confluence of the foregoing circumstances indubitably establishes that petitioner indeed wantonly disregarded
regulations. Additionally, DECS Order No. 100 negates his claim that the negotiated transaction -- done instead of a
public bidding -- was justified. If that Order suspended the acquisition of tools and devices, then there was all the more
reason for making purchases by public bidding. Since the buying of tools and devices was specifically suspended,
petitioner cannot argue that the purchases were done in the interest of public service.
Proof of Guilt
To sustain a conviction under Section 3(g) of Republic Act No. 3019, it must be clearly proven that 1) the accused is a
public officer; 2) the public officer entered into a contract or transaction on behalf of the government; and 3) the
contract or transaction was grossly and manifestly disadvantageous to the government. 70
From the foregoing, it is clear that the Sandiganbayan did not err in ruling that the evidence presented warranted a
verdict of conviction. Petitioner is a public officer, who approved the transactions on behalf of the government, which
thereby suffered a substantial loss. The discrepancy between the prices of the SLTDs purchased by the DECS and
the samples purchased by the COA audit team clearly established such undue injury. Indeed, the discrepancy was
grossly and manifestly disadvantageous to the government.
We must emphasize however, that the lack of a public bidding and the violation of an administrative order do not by
themselves satisfy the third element of Republic Act No. 3019, Section 3(g); namely, that the contract or transaction
entered into was manifestly and grossly disadvantageous to the government, as seems to be stated in the Resolution
of the Sandiganbayan denying the Motion for Reconsideration. 71 Lack of public bidding alone does not result in a
manifest and gross disadvantage. Indeed, the absence of a public bidding may mean that the government was not
able to secure the lowest bargain in its favor and may open the door to graft and corruption. Nevertheless, the law
requires that the disadvantage must be manifest and gross. Penal laws are strictly construed against the
government. 72
If the accused is to be sent to jail, it must be because there is solid evidence to pin that person down, not because of
the omission of a procedural matter alone. Indeed, all the elements of a violation of Section 3(g) of Republic Act No.
3019 should be established to prove the culpability of the accused. In this case, there is a clear showing that all the
elements of the offense are present. Thus, there can be no other conclusion other than conviction.
We note, however, that petitioner was sentenced to suffer the penalty of six (6) years and one (1) day as minimum to
twelve (12) years and one (1) day as maximum. Under Section 9 of Republic Act 3019, petitioner should be punished
with imprisonment of not less than six (6) years and one (1) month nor more than fifteen years. Thus, we adjust the
minimum penalty imposed on petitioner in accordance with the law.
WHEREFORE, the Petition is DENIED. The assailed Decision and Resolution are AFFIRMED, with the
MODIFICATION that the minimum sentence imposed shall be six (6) years and one (1) month, not six (6) years and
one (1) day. Costs against petitioner.
SO ORDERED.
G.R. Nos. 181999 & 182001-04 September 2, 2009
OFELIA C. CAUNAN vs. PEOPLE OF THE PHILIPPINES and SANDIGANBAYAN
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. Nos. 182020-24
JOEY P. MARQUEZ vs. SANDIGANBAYAN -4th DIVISION and PEOPLE OF THE PHILIPPINES
NACHURA, J.:
At bar are consolidated petitions for review on certiorari under Rule 45 of the Rules of Court which assail the
Decision1 dated August 30, 2007 and Resolution2 dated March 10, 2008 of the Sandiganbayan in Criminal Case Nos.
27944, 27946, 27952, 27953, & 27954, finding petitioners Joey P. Marquez (Marquez) and Ofelia C. Caunan (Caunan)
guilty of violation of Section 3(g) of Republic Act (R.A.) No. 3019, otherwise known as the Anti-Graft and Corrupt
Practices Act.
Marquez and Caunan, along with four (4) other local government officials of Parañaque City 3 and private individual
Antonio Razo (Razo), were charged under five (5) Informations, to wit:
The Information in Criminal Case No. 27944 states:
That on January 11, 1996 or thereabout, in Parañaque City, Philippines, and within the jurisdiction of this Honorable
Court, accused Public Officers JOEY P. MARQUEZ, a high ranking public official, being the City Mayor of Parañaque
City and Chairman, Committee on Awards, together with the members of the aforesaid Committee, namely:
SILVESTRE DE LEON, being then the City Treasurer, MARILOU TANAEL, the City Accountant (SG 26),
FLOCERFIDA M. BABIDA, the City Budget Officer (SG 26), OFELIA C. CAUNAN, the OIC General Services Office
(SG 26) and AILYN ROMEA, the Head Staff, Office of the Mayor (SG 26), acting as such and committing the offense
in relation to their official duties and taking advantage of their official positions, conspiring, confederating and mutually
helping one another and with the accused private individual ANTONIO RAZO, the owner and proprietor of ZARO
Trading, a business entity registered with the Bureau of Domestic Trade and Industry, with evident bad faith and
manifest partiality (or at the very least, with gross inexcusable negligence), did then and there willfully, unlawfully and
criminally enter into manifestly and grossly disadvantageous transactions, through personal canvass, with said ZARO
Trading, for the purchase of 5,998 pieces of "walis ting-ting" at ₱25 per piece as per Disbursement Voucher No. 101-
96-12-8629 in the total amount of ONE HUNDRED FORTY-NINE THOUSAND NINE HUNDRED FIFTY PESOS
(₱149,950.00), without complying with the Commission on Audit (COA) Rules and Regulations and other requirements
on Procurement and Public Bidding, and which transactions were clearly grossly overpriced as the actual cost per
piece of the "walis ting-ting" was only ₱11.00 as found by the Commission on Audit (COA) in its Decision No. 2003-
079 dated May 13, 2003 with a difference, therefore, of ₱14.00 per piece or a total overpriced amount of EIGHTY
THREE THOUSAND NINE HUNDRED SEVENTY TWO PESOS (₱83,972.00), thus, causing damage and prejudice to
the government in the aforesaid sum.
The Information in Criminal Case No. 27946 states:
That on June 30, 1997 or thereabout, in Parañaque City, Philippines and within the jurisdiction of this Honorable Court,
accused Public Officers JOEY P. MARQUEZ, a high ranking public official, being the City Mayor of Parañaque City
and Chairman, Committee on Awards, together with members of the aforesaid committee, namely: SILVESTRE DE
LEON, being then the City Treasurer, MARILOU TANAEL, the City Accountant (SG 26), FLOCERFIDA M. BABIDA,
the City Budget officer (SG 26), OFELIA C. CAUNAN, the OIC General Services Office (SG 26) and AILYN ROMEA,
the Head Staff, Office of the Mayor (SG 26), acting as such and committing the offense in relation to their official duties
and taking advantage of their official positions, conspiring, confederating and mutually helping one another and with
accused private individual ANTONIO RAZO, the owner and proprietor of ZAR[O] Trading, a business entity registered
with the Bureau of Domestic Trade and Industry, with evident bad faith and manifest partiality (or at the very least, with
gross inexcusable negligence), did then and there willfully, unlawfully and criminally enter into manifestly and grossly
disadvantageous transactions, through personal canvass, with ZAR[O] Trading for the purchase of 23,334 pieces of
"walis ting-ting" at ₱15.00 per piece as per Disbursement Voucher No. 101-98-02-447 in the total amount of THREE
HUNDRED FIFTY THOUSAND TEN PESOS (₱350,010.00), without complying with the Commission on Audit (COA)
Rules and Regulations and other requirements on Procurement and Public Bidding, and which transactions were
clearly grossly overpriced as the actual cost per piece of the "walis ting-ting" was only ₱11.00 as found by the
Commission on Audit (COA) in its Decision No. 2003-079 dated May 13, 2003 with a difference, therefore, of ₱4.00
per piece or a total overpriced amount of NINETY THREE THOUSAND THREE HUNDRED THIRTY SIX PESOS
(₱93,336.00), thus causing damage and prejudice to the government in the aforesaid sum.
The Information in Criminal Case No. 27952 states:
That [in] September 1997, or thereabout, in Parañaque City, Philippines and within the jurisdiction of this Honorable
Court, accused Public Officers JOEY P. MARQUEZ, a high ranking public official, being the City Mayor of Parañaque
City and Chairman, Committee on Awards, together with members of the aforesaid committee, namely: SILVESTRE
DE LEON, being then the City Treasurer, MARILOU TANAEL, the City Accountant (SG 26), FLOCERFIDA M.
BABIDA, the City Budget officer (SG 26), OFELIA C. CAUNAN, the OIC General Services Office (SG 26) and AILYN
ROMEA, the Head Staff, Office of the Mayor (SG 26), acting as such and committing the offense in relation to their
official duties and taking advantage of their official positions, conspiring, confederating and mutually helping one
another and with accused private individual ANTONIO RAZO, the owner and proprietor of ZAR[O] Trading, a business
entity registered with the Bureau of Domestic Trade and Industry, with evident bad faith and manifest partiality (or at
the very least, with gross inexcusable negligence), did then and there willfully, unlawfully and criminally enter into
manifestly and grossly disadvantageous transactions, through personal canvass, with ZAR[O] Trading for the
purchase of 8,000 pieces of "walis ting-ting" at ₱15.00 per piece as per Disbursement Voucher No. 101-98-02-561 in
the total amount of ONE HUNDRED TWENTY THOUSAND PESOS (₱120,000.00), without complying with the
Commission on Audit (COA) Rules and Regulations and other requirements on Procurement and Public Bidding, and
which transactions were clearly grossly overpriced as the actual cost per piece of the "walis ting-ting" was only ₱11.00
as found by the Commission on Audit (COA) in its Decision No. 2003-079 dated May 13, 2003 with a difference,
therefore, of ₱4.00 per piece or a total overpriced amount of THIRTY TWO THOUSAND PESOS (₱32,000.00), thus
causing damage and prejudice to the government in the aforesaid sum.
The Information in Criminal Case No. 27953 states:
That during the period from February 11, 1997 to February 20, 1997, or thereabout, in Parañaque City, Philippines and
within the jurisdiction of this Honorable Court, accused Public Officers JOEY P. MARQUEZ, a high ranking public
official, being the City Mayor of Parañaque City and Chairman, Committee on Awards, together with members of the
aforesaid committee, namely: SILVESTRE DE LEON, being then the City Treasurer, MARILOU TANAEL, the City
Accountant (SG 26), FLOCERFIDA M. BABIDA, the City Budget officer (SG 26), OFELIA C. CAUNAN, the OIC
General Services office (SG 26) and AILYN ROMEA, the Head Staff, Office of the Mayor (SG 26), acting as such and
committing the offense in relation to their official duties and taking advance of their official positions, conspiring,
confederating and mutually helping one another and with accused private individual ANTONIO RAZO, the owner and
proprietor of ZAR[O] Trading, a business entity registered with the Bureau of Domestic Trade and Industry, with
evident bad faith and manifest partiality (or at the very least, with gross inexcusable negligence), did then and there
willfully, unlawfully and criminally enter into manifestly and grossly disadvantageous transactions, through personal
canvass, with ZAR[O] Trading for the purchase of 10,100 pieces of "wa lis
ting-ting" on several occasions
at ₱25.00 per piece without complying with the Commission on Audit (COA) Rules
and Regulations and other requirements on procurement and Public Bidding and
which purchases are hereunder enumerated as follows:
Date of Transaction Voucher No. Amount Quantity

February 20, 1997 101-97-04-1755 ₱ 3,000.00 120 pcs.

February 12, 1997 101-97-04-1756 ₱100,000.00 4,000 pcs.

February 11, 1997 101-97-04-1759 ₱149,500.00 5,980 pcs.

in the total amount of TWO HUNDRED FIFTY TWO THOUSAND PESOS (₱252,000.00), and which transactions were
clearly overpriced as the actual cost per piece of the "walis ting-ting" was only P11.00 as found by the Commission on
Audit (COA) in its Decision No. 2003-079 dated May 13, 2003 with a difference, therefore, of ₱14.00 per piece or a
total overpriced amount of ONE HUNDRED FORTY ONE THOUSAND FOUR HUNDRED PESOS (₱141,400.00),
thus, causing damage and prejudice to the government in the aforesaid sum.
The Information in Criminal Case No. 27954 states:
That during the period from October 15, 1996 to October 18, 1996 or thereabout, in Parañaque City, Philippines and
within the jurisdiction of this Honorable Court, accused Public Officers JOEY P. MARQUEZ, a high ranking public
official, being the City Mayor of Parañaque City and Chairman, Committee on Awards, together with members of the
aforesaid committee, namely: SILVESTRE DE LEON, being then the City Treasurer, MARILOU TANAEL, the City
Accountant (SG 26), FLOCERFIDA M. BABIDA, the City Budget officer (SG 26), OFELIA C. CAUNAN, the OIC
General Services Office (SG 26) and AILYN ROMEA, the Head Staff, Office of the Mayor (SG 26), acting as such and
committing the offense in relation to their official duties and taking advantage of their official positions, conspiring,
confederating and mutually helping one another and with accused private individual ANTONIO RAZO, the owner and
proprietor of ZAR[O] Trading, a business entity registered with the Bureau of Domestic Trade and Industry, with
evident bad faith and manifest partiality (or at the very least, with gross inexcusable negligence), did then and there
willfully, unlawfully and criminally enter into manifestly and grossly disadvantageous transactions, through personal
canvass, with ZAR[O] Trading for the purchase of 8,000 pieces of "walis ting-ting" on several occasions at ₱25.00 per
piece without complying with the Commission on Audit (COA) Rules and Regulations and other requirements on
procurement and Public Bidding and which purchases are hereunder enumerated a s follows:
Date of Transaction Voucher Number Amount Quantity

October 15, 1996 101-96-11-7604 ₱ 100,000.00 4,000 pcs.

 October 18, 1996 101-96-11-7605 ₱ 100,000.00 4,000 pcs.

in the total amount of TWO HUNDRED THOUSAND PESOS (₱200,000.00), and which transactions were clearly
grossly overpriced as the actual cost per piece of the "walis ting-ting" was only ₱11.00 as found by the Commission on
Audit (COA) in its Decision No. 2003-079 dated May 13, 2003 with a difference, therefore, of ₱14.00 per piece or a
total overpriced amount of ONE HUNDRED TWELVE THOUSAND PESOS (₱112,000.00), thus, causing damage and
prejudice to the government in the aforesaid sum.4
The five (5) Informations were filed based on the findings of the Commission on Audit (COA) Special Audit Team that
there was overpricing in certain purchase transactions of Parañaque City. In March 1999, a Special Audit Team
composed of Fatima Bermudez (Bermudez), Carolina Supsup, Gerry Estrada, and Yolando Atienza, by virtue of Local
Government Audit Office Assignment Order No. 99-002, audited selected transactions of Parañaque City for the
calendar years 1996 to 1998, including the walis tingting purchases.
In connection with the walis tingting purchases audit, the audit team gathered the following evidence:
1. Documents furnished by the Office of the City Mayor of Parañaque City upon request of the audit team;
2. Sample walis tingting with handle likewise submitted by the Office of the City Mayor of Parañaque City;
3. Samples of walis tingting without handle actually utilized by the street sweepers upon ocular inspection of
the audit team;
4. Survey forms accomplished by the street sweepers containing questions on the walis tingting;
5. Evaluation by the Technical Services Department5 of the reasonableness of the walis tingting procurement
compared to current prices thereof;
6. A separate canvass by the audit team on the prices of the walis tingting, including purchases thereof at
various merchandising stores;6 and
7. Documents on the conduct and process of procurement of walis tingting by the neighboring city of Las
Piñas.
Parenthetically, to ascertain the prevailing price of walis tingting for the years 1996 to 1998, the audit team made a
canvass of the purchase prices of the different merchandise dealers of Parañaque City. All, however, were reluctant to
provide the team with signed quotations of purchase prices for walis tingting. In addition, the audit team attempted to
purchase walis tingting from the named suppliers of Parañaque City. Curiously, when the audit team went to the listed
addresses of the suppliers, these were occupied by other business establishments. Thereafter, the audit team located,
and purchased from, a lone supplier that sold walis tingting.
As previously adverted to, the audit team made a report which contained the following findings:
1. The purchase of walis tingting was undertaken without public bidding;
2. The purchase of walis tingting was divided into several purchase orders and requests to evade the
requirement of public bidding and instead avail of personal canvass as a mode of procurement;
3. The purchase of walis tingting through personal canvass was attended with irregularities; and
4. There was glaring overpricing in the purchase transactions.
Consequently, the COA issued Notices of Disallowance Nos. 01-001-101 (96) to 01-006-101 (96), 01-001-101 (97) to
01-011-101 (97), and 01-001-101 (98) to 01-004-101 (98) covering the overpriced amount of ₱1,302,878.00 for the
purchases of 142,612 walis tingting, with or without handle, by Parañaque City in the years 1996-1998. 7
Objecting to the disallowances, petitioners Marquez and Caunan, along with the other concerned local government
officials of Parañaque City, filed a request for reconsideration with the audit team which the latter subsequently denied
in a letter to petitioner Marquez.
Aggrieved, petitioners and the other accused appealed to the COA which eventually denied the appeal. Surprisingly,
on motion for reconsideration, the COA excluded petitioner Marquez from liability for the disallowances based on our
rulings in Arias v. Sandiganbayan8 and Magsuci v. Sandiganbayan.9
On the other litigation front, the criminal aspect subject of this appeal, the Ombudsman found probable cause to indict
petitioners and the other local government officials of Parañaque City for violation of Section 3(g) of R.A. No. 3019.
Consequently, the five (5) Informations against petitioners, et al. were filed before the Sandiganbayan.
After trial and a flurry of pleadings, the Sandiganbayan rendered judgment finding petitioners Caunan and Marquez,
along with Silvestre de Leon and Marilou Tanael, guilty of violating Section 3(g) of R.A. No. 3019. As for accused
Flocerfida Babida, Ailyn Romea and private individual Razo, the Sandiganbayan acquitted them for lack of sufficient
evidence to hold them guilty beyond reasonable doubt of the offenses charged. The Sandiganbayan ruled as follows:
 1. The prosecution evidence, specifically the testimony of Bermudez and the Special Audit Team’s report, did
not constitute hearsay evidence, considering that all the prosecution witnesses testified on matters within their
personal knowledge;
2. The defense failed to question, and timely object to, the admissibility of documentary evidence, such as the
Las Piñas City documents and the Department of Budget and Management (DBM) price listing downloaded
from the Internet, which were certified true copies and not the originals of the respective documents;
3. The Bids and Awards Committee was not properly constituted; the accused did not abide by the prohibition
against splitting of orders; and Parañaque City had not been afforded the best possible advantage for the
most objective price in the purchase of walis tingting for failure to observe the required public bidding;
4. The contracts for procurement of walis tingting in Parañaque City for the years 1996-1998 were awarded to
pre-selected suppliers; and
5. On the whole, the transactions undertaken were manifestly and grossly disadvantageous to the
government.
Expectedly, the remaining accused, Caunan, Marquez and Tanael, moved for reconsideration of the Sandiganbayan
decision. Caunan and Tanael, represented by the same counsel, collectively filed a Motion for Reconsideration (with
Written Notice of Death of Accused Silvestre S. de Leon). Marquez filed several motions, 10 including a separate Motion
for Reconsideration.
All the motions filed by Marquez, as well as Caunan’s motion, were denied by the Sandiganbayan. However, with
respect to Tanael, the Sandiganbayan found reason to reconsider her conviction.
Hence, these separate appeals by petitioners Marquez and Caunan.
Petitioner Caunan posits the following issues:
1. [whether] the prosecution’s proof of overpricing [is] hearsay.
2. [whether the] respondent sandiganbayan [erred] in admitting witness fatima v. Bermudez’ testimony despite the fact
that its sources are themselves admittedly and patently hearsay.
3. [whether the] respondent sandiganbayan gravely [erred] in applying an exception to the hearsay rule[.] Under this
exception, "public documents consisting of entries in public records, etc.," x x x are prima facie evidence of the facts
stated therein.
4. Consequently, [whether] respondent sandiganbayan gravely erred in not acquitting [caunan]. 11
For his part, petitioner Marquez raises the following:
1. Whether [marquez] must be acquitted from the subject criminal cases based on the doctrines laid down in the arias
and magsuci cases earlier decided by this honorable court and the pertinent provisions of the local government code
and other existing regulations[;]
2. Whether [marquez] must be acquitted from the subject criminal cases since he was already excluded from liability
by the commission on audit[;]
3. Whether the acquittal of co-accused 1) supplier antonio razo who was the other party to, and received the total
amount of, the questioned contracts or transactions, 2) city accountant marilou tanael who pre-audited the claims and
signed the vouchers, 3) city budget officer flocerfida m. Babida, and 4) head of staff ailyn romea casts a big cloud of
doubt on the finding of [marquez’s] guilt by the sandiganbayan – fourth division[;]
4. Whether [marquez] can be convicted on plain hearsay, if not dubious evidence of overpricing or on mere
circumstantial evidence that do not amount to proof of guilt beyond reasonable doubt in the subject criminal cases[;]
5. Whether the alleged overpricing which was the basis for claiming that the contracts or transactions entered into by
[marquez] in behalf of parañaque city were manifestly and grossly disadvantageous to the government was
ascertained or determined with reasonable certainty in accordance with the requirements or procedures prescribed
under coa memorandum no. 97-012 dated march 31, 1997[;]
6. Whether the quantum of prosecution evidence has overcome the constitutional presumption of innocence which
[marquez] enjoys in the subject criminal cases[;]
7. Whether the right of [marquez] to due process was violated when the chairman (justice gregory ong) of the
sandiganbayan – fourth division refused to inhibit despite serious conflict of interest[;]
8. Whether [marquez] is entitled to the reopening of the subject criminal cases[;]
9. Whether the right of [marquez] to be informed of the nature of the accusation against him was violated when
instead of only one offense, several information had been filed in the trial court on the theory of overpricing in the
procurement of broomsticks (walis tingting) by way of splitting contracts or purchase orders[; and]
10. Whether [marquez] is entitled to new trial since his right to an impartial trial was violated in the subject criminal
cases when the chairman (justice gregory ong) refused to inhibit despite the existence of serious conflict of interest
raised by the former before the judgment became final. 12
In a Resolution dated February 23, 2009, we directed the consolidation of these cases. Thus, we impale petitioners’
issues for our resolution:
1. First and foremost, whether the Sandiganbayan erred in finding petitioners guilty of violation of Section 3(g)
of R.A. No. 3019.
 2. Whether the testimony of Bermudez and the report of the Special Audit Team constitute hearsay and are,
therefore, inadmissible in evidence against petitioners.
3. Whether petitioner Marquez should be excluded from liability based on our rulings in Arias v.
Sandiganbayan13 and Magsuci v. Sandiganbayan.14
Both petitioners insist that the fact of overpricing, upon which the charge against them of graft and corruption is based,
had not been established by the quantum of evidence required in criminal cases, i.e., proof beyond reasonable
doubt.15 Petitioners maintain that the evidence of overpricing, consisting of the report of the Special Audit Team and
the testimony thereon of Bermudez, constitutes hearsay and, as such, is inadmissible against them. In addition,
petitioner Marquez points out that the finding of overpricing was not shown to a reliable degree of certainty as required
by COA Memorandum No. 97-012 dated March 31, 1997. 16 In all, petitioners asseverate that, as the overpricing was
not sufficiently established, necessarily, the last criminal element of Section 3(g) of R.A. No. 3019 — a contract or
transaction grossly and manifestly disadvantageous to the government — was not proven.lavvphil
Section 3(g) of R.A. No. 3019 provides:
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:
xxxx
(g) Entering on behalf of the Government, into any contract or transaction, manifestly and grossly disadvantageous to
the same, whether or not the public officer profited or will profit thereby.
For a charge under Section 3(g) to prosper, the following elements must be present: (1) that the accused is a public
officer; (2) that he entered into a contract or transaction on behalf of the government; and (3) that such contract or
transaction is grossly and manifestly disadvantageous to the government. 17
The presence of the first two elements of the crime is not disputed. Hence, the threshold question we should resolve is
whether the walis tingting purchase contracts were grossly and manifestly injurious or disadvantageous to the
government.
We agree with petitioners that the fact of overpricing is embedded in the third criminal element of Section 3 (g) of R.A.
No. 3019. Given the factual milieu of this case, the subject contracts would be grossly and manifestly
disadvantageous to the government if characterized by an overpriced procurement. However, the gross and manifest
disadvantage to the government was not sufficiently shown because the conclusion of overpricing was erroneous
since it was not also adequately proven. Thus, we grant the petitions.
In criminal cases, to justify a conviction, the culpability of an accused must be established by proof beyond a
reasonable doubt.18 The burden of proof is on the prosecution, as the accused enjoys a constitutionally enshrined
disputable presumption of innocence.19 The court, in ascertaining the guilt of an accused, must, after having
marshaled the facts and circumstances, reach a moral certainty as to the accused’s guilt. Moral certainty is that
degree of proof which produces conviction in an unprejudiced mind. 20 Otherwise, where there is reasonable doubt, the
accused must be acquitted.
In finding that the walis tingting purchase contracts were grossly and manifestly disadvantageous to the government,
the Sandiganbayan relied on the COA’s finding of overpricing which was, in turn, based on the special audit team’s
report. The audit team’s conclusion on the standard price of a walis tingting was pegged on the basis of the following
documentary and object evidence: (1) samples of walis tingting without handle actually used by the street sweepers;
(2) survey forms on the walis tingting accomplished by the street sweepers; (3) invoices from six merchandising stores
where the audit team purchased walis tingting; (4) price listing of the DBM Procurement Service; and (5) documents
relative to the walis tingting purchases of Las Piñas City. These documents were then compared with the documents
furnished by petitioners and the other accused relative to Parañaque City’s walis tingting transactions.
Notably, however, and this the petitioners have consistently pointed out, the evidence of the prosecution did not
include a signed price quotation from the walis tingting suppliers of Parañaque City. In fact, even the walis tingting
furnished the audit team by petitioners and the other accused was different from the walis tingting actually utilized by
the Parañaque City street sweepers at the time of ocular inspection by the audit team. At the barest minimum, the
evidence presented by the prosecution, in order to substantiate the allegation of overpricing, should have been
identical to the walis tingting purchased in 1996-1998. Only then could it be concluded that the walis tingting
purchases were disadvantageous to the government because only then could a determination have been made to
show that the disadvantage was so manifest and gross as to make a public official liable under Section 3(g) of R.A.
No. 3019.
On the issue of hearsay, the Sandiganbayan hastily shot down petitioners’ arguments thereon, in this wise:
We find no application of the hearsay rule here. In fact, all the witnesses in this case testified on matters within their
personal knowledge. The prosecution’s principal witness, Ms. Bermudez, was a State Auditor and the Assistant
Division Chief of the Local Government Audit Office who was tasked to head a special audit team to audit selected
transactions of Parañaque City. The report which she identified and testified on [was] made by [the] Special Audit
Team she herself headed. The disbursement vouchers, purchase orders, purchase requests and other documents
constituting the supporting papers of the team’s report were public documents requested from the City Auditor of
Parañaque and from the accused Mayor Marquez. Such documents were submitted to the Special Audit Team for the
specific purpose of reviewing them. The documents were not executed by Ms. Bermudez or by any member of the
Special Audit Team for the obvious reason that, as auditors, they are only reviewing acts of others. The Special Audit
Team’s official task was to review the documents of the walis tingting transactions. In the process of [the] review, they
found many irregularities in the documentations —violations of the Local Government Code and pertinent COA rules
and regulations. They found that the transactions were grossly overpriced. The findings of the team were consolidated
in a report. The same report was the basis of Ms. Bermudez’s testimony. x x x. 21
The reasoning of the Sandiganbayan is specious and off tangent. The audit team reached a conclusion of gross
overpricing based on documents which, at best, would merely indicate the present market price of walis tingting of a
different specification, purchased from a non-supplier of Parañaque City, and the price of walis tingting purchases in
Las Piñas City. Effectively, the prosecution was unable to demonstrate the requisite burden of proof, i.e., proof beyond
reasonable doubt, in order to overcome the presumption of innocence in favor of petitioners.
As pointed out by petitioner Caunan, not all of the contents of the audit team’s report constituted hearsay. Indeed, as
declared by the Sandiganbayan, Bermudez could very well testify thereon since the conclusions reached therein were
made by her and her team. However, these conclusions were based on incompetent evidence. Most obvious would be
the market price of walis tingting in Las Piñas City which was used as proof of overpricing in Parañaque City. The
prosecution should have presented evidence of the actual price of the particular walis tingting purchased by
petitioners and the other accused at the time of the audited transaction or, at the least, an approximation thereof.
Failing in these, there is no basis to declare that there was a glaring overprice resulting in gross and manifest
disadvantage to the government.
We are not unmindful of the fact that petitioners failed to conduct the requisite public bidding for the questioned
procurements. However, the lack of public bidding alone does not automatically equate to a manifest and gross
disadvantage to the government. As we had occasion to declare in Nava v. Sandiganbayan, 22 the absence of a public
bidding may mean that the government was not able to secure the lowest bargain in its favor and may open the door
to graft and corruption. However, this does not satisfy the third element of the offense charged, because the law
requires that the disadvantage must be manifest and gross. After all, penal laws are strictly construed against the
government.
With the foregoing disquisition, we find no necessity to rule on the applicability of our rulings in Arias and Magsuci to
petitioner Marquez. Nonetheless, we wish to reiterate herein the doctrines laid down in those cases. We call specific
attention to the sweeping conclusion made by the Sandiganbayan that a conspiracy existed among petitioners and the
other accused, most of whom were acquitted, particularly private individual Razo, the proprietor of Zaro Trading.
Our ruling in Magsuci, citing our holding in Arias, should be instructive, viz.:
The Sandiganbayan predicated its conviction of [Magsuci] on its finding of conspiracy among Magsuci, Ancla and now
deceased Enriquez.
There is conspiracy "when two or more persons come to an agreement concerning the commission of a felony and
decide to commit it." Conspiracy is not presumed. Like the physical acts constituting the crime itself, the elements of
conspiracy must be proven beyond reasonable doubt. While conspiracy need not be established by direct evidence,
for it may be inferred from the conduct of the accused before, during and after the commission of the crime, all taken
together, however, the evidence therefore must reasonably be strong enough to show a community of criminal design.
xxxx
Fairly evident, however, is the fact that the actions taken by Magsuci involved the very functions he had to discharge
in the performance of his official duties. There has been no intimation at all that he had foreknowledge of any
irregularity committed by either or both Engr. Enriquez and Ancla. Petitioner might have indeed been lax and
administratively remiss in placing too much reliance on the official reports submitted by his subordinate (Engineer
Enriquez), but for conspiracy to exist, it is essential that there must be a conscious design to commit an offense.
Conspiracy is not the product of negligence but of intentionality on the part of cohorts.
In Arias v. Sandiganbayan, this Court, aware of the dire consequences that a different rule could bring, has aptly
concluded:
"We would be setting a bad precedent if a head of office plagued by all too common problems—dishonest or negligent
subordinates, overwork, multiple assignments or positions, or plain incompetence—is suddenly swept into a
conspiracy conviction simply because he did not personally examine every single detail, painstakingly trace every step
from inception, and investigate the motives of every person involved in a transaction before affixing his signature as
the final approving authority. "x x x x
"x x x. All heads of offices have to rely to a reasonable extent on their subordinates and on the good faith of those who
prepare bids, purchase supplies, or enter into negotiations. x x x. There has to be some added reason why he should
examine each voucher in such detail. Any executive head of even small government agencies or commissions can
attest to the volume of papers that must be signed. There are hundreds of documents, letters, memoranda, vouchers,
and supporting papers that routinely pass through his hands. The number in bigger offices or department is even more
appalling."23
WHEREFORE, premises considered, the Decision dated August 30, 2007 and Resolution dated March 10, 2008 of
the Sandiganbayan in Criminal Case Nos. 27944, 27946, 27952, 27953, & 27954 are REVERSED and SET ASIDE.
Petitioners Joey P. Marquez in G.R. Nos. 182020-24 and Ofelia C. Caunan in G.R. Nos. 181999 and 182001-04 are
ACQUITTED of the charges against them. Costs de oficio. SO ORDERED.
LILIA B. ORGANO vs. SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES
G.R. No. 133535 September 9, 1999
PARDO, J.:
The case before the Court is a special civil action for certiorari with preliminary injunction or temporary restraining
order assailing the resolutions of the Sandiganbayan, Fourth Division, 1 that denied petitioner's motion to quash the
information in the case below, for lack of merit.
We grant the petition.
The facts are as follows:
On August 15, 1997, Special Prosecution Officer Jose T. de Jesus, Jr., filed with the Sandiganbayan an Information
against petitioner, together with others, for the crime of "plunder" or violation of R.A. No. 7080, as amended by R.A.
No. 7659. 2
The Information reads as follows:
That on or about 05 November 1996, or sometime prior or subsequent thereto, in Quezon City,
Philippines and within the jurisdiction of this Honorable Court, accused Dominga S. Manalili, Teopisto
A. Sapitula, Jose dP. Marcelo, Lilia B. Organo, being then public officers and taking advantage of their
official positions as employees of the Bureau of Internal Revenue, Region 7, Quezon City, and Gil R.
Erencio, Reynaldo S. Enriquez and Luis S. Se, Jr., conspiring, confabulating and confederating with
one another, did then and there wilfully, unlawfully and criminally amass and acquire funds belonging
to the National Government by opening an unauthorized bank account with the Landbank of the
Philippines, West Triangle Branch, Diliman, Quezon City, for and in behalf of the Bureau of Internal
Revenue and deposit therein money belonging to the government of the Philippines, consisting of
revenue tax payments, then withdraw therefrom the total sum of Pesos: One Hundred Ninety Three
Million Five Hundred Sixty Five Thousand Seventy Nine & 64/100 (P193,565,079.64) Philippine
Currency, between November, 1996 to February, 1997, without proper authority, through checks made
payable to themselves and/or the sole proprietorship firms of the above named private persons,
thereby succeeding in misappropriating, converting, misusing and/or malversing said public finds
tantamount to a raid on the public treasury, to their own personal gains, advantages and benefits, to
the damage and prejudice of the government in the aforestated amount. 3
On August 20, 1997, petitioner filed with the Sandiganbayan a motion to quash information for lack of jurisdiction,
contending that the Sandiganbayan no longer had jurisdiction over the case under R.A. 8249, approved on February
5, 1997.
On September 29, 1997, without first resolving petitioner's motion to quash information, the Sandiganbayan issued a
warrant of arrest against all the accused in the case.
On November 28, 1997, the Sandiganbayan issued a resolution denying petitioner's motion to quash the information
for lack of merit.
On December 9, 1997, petitioner filed with the Sandiganbayan a motion for reconsideration, reiterating the ground of
lack of jurisdiction over the case pursuant to Republic Act No. 8249, approved on February 5, 1997.
On April 28, 1998, after one hundred forty (140) days from its filing, the Sandiganbayan issued a resolution denying
petitioner's motion for reconsideration ruling that she should first surrender to the court before she may file any further
pleading with the court.
Hence, this petition.
On June 23, 1998, the Court resolved to require the respondents to comment on the petition, not to file a motion to
dismiss, within ten (10) days from notice. 4
On September 14, 1998, the Office of the Special Prosecutor, representing the People of the Philippines, filed its
comment. 5
6
On January 4, 1999, the Solicitor General filed his comment.
We give due course to the petition.
At issue is whether the Sandiganbayan at the time of the filing of the information on August 15, 1997 had jurisdiction
over the case, in view of the enactment on February 5, 1997 of Republic Act No. 8249, vesting in the Sandiganbayan
jurisdiction over offenses and felonies whether simple or complexed with other crimes committed by public officers and
employees mentioned in subsection (a) of Section 4 in relation to their office where the accused holds a position with
salary grade "27" and higher under the Compensation and Position Classification Act of 1989.
Petitioner contends that since none of the accused holds a position with Salary Grade "27" and higher, jurisdiction
over the case falls with the Regional Trial Court. 7 On the other hand, respondent Sandiganbayan's position is that
Republic Act No. 7080 which defines and penalizes the crime of "plunder" vests in the Sandiganbayan jurisdiction
thereof, and since it is a special law, it constitutes an exception to the general law, Republic Act No. 8249. 8
Republic Act No. 7080, Section 3 provides:
Until otherwise provided by law, all pro-sections under this Act shall be within the original jurisdiction
of the Sandiganbayan.
This law was enacted on September 23, 1991, and was effective on October 7, 1991.
On February 5, 1997, Republic Act No. 8249 was approved, further defining the jurisdiction of the Sandiganbayan.
Sec. 4 of the law provides:
Sec. 4. Jurisdiction. — The Sandiganbayan shall exercise exclusive original jurisdiction in all cases
involving:
xxx xxx xxx
b. Other offenses or felonies whether simple or complexed with other crimes committed by the public
officials and employees mentioned in sub-section a of this section in relation to their office.
xxx xxx xxx
In cases where none of the accused are occupying positions corresponding to Salary Grade "27" or
higher, as prescribed in the said Republic Act No. 6758, or military and PNP officers mentioned
above, exclusive original jurisdiction thereof shall be vested in the proper regional trial court,
metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be,
pursuant to their respective jurisdictions as provided in Batas Pambansa Blg. 129, as amended. 9
This latest enactment collated the provisions on the exclusive jurisdiction of the Sandiganbayan. It is a special law
enacted to declog the Sandiganbayan of "small fry" cases. In an unusual manner, the original jurisdiction of the
Sandiganbayan as a trial court was made to depend not on the penalty imposed by law on the crimes and offenses
within its jurisdiction but on the rank and salary grade of accused government officials and employees.
However, the crime of "plunder" defined in Republic Act No. 7080, as amended by Republic Act No. 7659, was
provisionally placed within the jurisdiction of the Sandiganbayan "until otherwise provided by law." 10 Republic Act No.
8429, enacted on February 5, 1997 is the special law that provided for the jurisdiction of the Sandiganbayan
"otherwise" than that prescribed in Republic Act No. 7080.
Consequently, we rule that the Sandiganbayan has no jurisdiction over the crime of plunder unless committed by
public officials and employees occupying the positions with Salary Grade "27" or higher, under the Compensation and
Position Classification Act of 1989 (Republic Act No. 6758) in relation to their office.
In ruling in favor of its jurisdiction, even though none of the accused occupied positions with Salary Grade "27" or
higher under the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), the Sandiganbayan
incurred in serious error of jurisdiction, entitling petitioner to the relief prayed for.
WHEREFORE, the Court hereby GRANTS the petition, for certiorari and ANNULS the resolutions of the
Sandiganbayan, dated November 20, 1997, and April 28, 1998, in Criminal Case No. 24100.
The Court orders the Sandiganbayan to forthwith refer the case to the court of proper jurisdiction.
No costs.
SO ORDERED.
JOSE "JINGGOY" E. ESTRADA vs. SANDIGANBAYAN (THIRD DIVISION), PEOPLE OF THE PHILIPPINES and
OFFICE OF THE OMBUDSMAN
G.R. No. 148965 February 26, 2002
PUNO, J.:
A law may not be constitutionally infirm but its application to a particular party may be unconstitutional. This is the
submission of the petitioner who invokes the equal protection clause of the Constitution in his bid to be excluded from
the charge of plunder filed against him by the respondent Ombudsman.
The antecedent facts are as follows:
In November 2000, as an offshoot of the impeachment proceedings against Joseph Ejercito Estrada, then President of
the Republic of the Philippines, five criminal complaints against the former President and members of his family, his
associates, friends and conspirators were filed with the respondent Office of the Ombudsman.
On April 4, 2001, the respondent Ombudsman issued a Joint Resolution 1 finding probable cause warranting the filing
with the Sandiganbayan of several criminal Informations against the former President and the other respondents
therein. One of the Informations was for the crime of plunder under Republic Act No. 7080 and among the
respondents was herein petitioner Jose "Jinggoy" Estrada, then mayor of San Juan, Metro Manila.
The Information was amended and filed on April 18, 2001. Docketed as Criminal Case No. 26558, the case was
assigned to respondent Third Division of the Sandiganbayan. The arraignment of the accused was set on July 10,
2001 and no bail for petitioner’s provisional liberty was fixed.
On April 24, 2001, petitioner filed a "Motion to Quash or Suspend" the Amended Information on the ground that the
Anti-Plunder Law, R.A. No. 7080, is unconstitutional and that it charged more than one offense. Respondent
Ombudsman opposed the motion.
On April 25, 2001, the respondent court issued a warrant of arrest for petitioner and his co-accused. On its basis,
petitioner and his co-accused were placed in custody of the law.
On April 30, 2001, petitioner filed a "Very Urgent Omnibus Motion" 2 alleging that: (1) no probable cause exists to put
him on trial and hold him liable for plunder, it appearing that he was only allegedly involved in illegal gambling and not
in a "series or combination of overt or criminal acts" as required in R.A. No. 7080; and (2) he is entitled to bail as a
matter of right. Petitioner prayed that he be excluded from the Amended Information and be discharged from custody.
In the alternative, petitioner also prayed that he be allowed to post bail in an amount to be fixed by respondent court. 3
On June 28, 2001, petitioner filed a "Motion to Resolve Mayor Jose ‘Jinggoy’ Estrada’s Motion To Fix Bail On Grounds
That An Outgoing Mayor Loses Clout An Incumbent Has And That On Its Face, the Facts Charged In The Information
Do Not Make Out A Non-Bailable Offense As To Him."4
On July 3, 2001, petitioner filed a "Motion to Strike Out So-Called ‘Entry of Appearance,’ To Direct Ombudsman To
Explain Why He Attributes Impropriety To The Defense And To Resolve Pending Incidents." 5
On July 9, 2001, respondent Sandiganbayan issued a Resolution denying petitioner’s "Motion to Quash and Suspend"
and "Very Urgent Omnibus Motion."6 Petitioner’s alternative prayer to post bail was set for hearing after arraignment of
all accused. The court held:
"WHEREFORE, in view of the foregoing, the Court hereby DENIES for lack of merit the following: (1) MOTION TO
QUASH AND SUSPEND dated April 24, 2001 filed by accused Jose ‘Jinggoy’ Estrada; (2) MOTION TO QUASH dated
June 7, 2001 filed by accused Joseph Ejercito Estrada; and (3) MOTION TO QUASH (Re: Amended Information dated
18 April 2001) dated June 26, 2001 filed by accused Edward S. Serapio.
Considering the denial of the MOTION TO QUASH AND SUSPEND of accused Jose ‘Jinggoy’ Estrada, his VERY
URGENT OMNIBUS MOTION, praying that he be: (1) dropped from the information for plunder for want of probable
cause and (2) discharged from custody immediately which is based on the same grounds mentioned in this MOTION
TO QUASH AND SUSPEND is hereby DENIED. Let his alternative prayer in said OMNIBUS MOTION that he be
allowed to post bail be SET for hearing together with the petition for bail of accused Edward S. Serapio scheduled for
July 10, 2001, at 2:00 o’clock in the afternoon after the arraignment of all the accused." 7
The following day, July 10, 2001, petitioner moved for reconsideration of the Resolution. Respondent court denied the
motion and proceeded to arraign petitioner. Petitioner refused to make his plea prompting respondent court to enter a
plea of "not guilty" for him.8
Hence, this petition. Petitioner claims that respondent Sandiganbayan acted without or in excess of jurisdiction or with
grave abuse of discretion amounting to lack of jurisdiction in:
 "1) not declaring that R.A. No. 7080 is unconstitutional on its face and, as applied to petitioner, and denying
him the equal protection of the laws;
2) not holding that the Plunder Law does not provide complete and sufficient standards;
3) sustaining the charge against petitioner for alleged offenses, and with alleged conspirators, with which and
with whom he is not even remotely connected - contrary to the dictum that criminal liability is personal, not
vicarious - results in the denial of substantive due process;
4) not fixing bail for petitioner for alleged involvement in jueteng in one count of the information which amounts
to cruel and unusual punishment totally in defiance of the principle of proportionality." 9
We shall resolve the arguments of petitioner in seriatim.
I.
Petitioner contends that R.A. No. 7080 is unconstitutional on its face and as applied to him and denies him the equal
protection of the laws.10
The contention deserves our scant attention. The constitutionality of R.A. No. 7080, the Anti-Plunder Law, has been
settled in the case of Estrada v. Sandiganbayan.11 We take off from the Amended Information which charged
petitioner, together with former President Joseph E. Estrada, Atty. Edward Serapio, Charlie "Atong" Ang, Yolanda T.
Ricaforte and others, with the crime of plunder as follows:
"AMENDED INFORMATION
The undersigned Ombudsman Prosecutor and OIC-Director, EPIB Office of the Ombudsman, hereby accuses
former PRESIDENT OF THE PHILIPPINES, Joseph Ejercito Estrada a.k.a. "ASIONG SALONGA" AND a.k.a
"JOSE VELARDE", together with Jose ‘Jinggoy’ Estrada, Charlie ‘Atong’ Ang, Edward Serapio, Yolanda T.
Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a.
Delia Rajas, and John DOES & Jane Does, of the crime of Plunder, defined and penalized under R.A. No. 7080,
as amended by Sec. 12 of R.A. No. 7659, committed as follows:
That during the period from June, 1998 to January, 2001, in the Philippines, and within the jurisdiction of this
Honorable Court, accused Joseph Ejercito Estrada, THEN A PUBLIC OFFICER, BEING THEN THE PRESIDENT
OF THE REPUBLIC OF THE PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACYwith his co-
accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS
ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS
OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION, OR INFLUENCE, did then and there wilfully,
unlawfully and criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten
wealth in the aggregate amount OR TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT
HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN
CENTAVOS [P4,097,804,173.17], more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES
AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE
PHILIPPINES, through ANY OR A combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES
OR MEANS, described as follows:
(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE
AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR
LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR
ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connivance with co-accused CHARLIE
‘ATONG’ ANG, Jose ‘Jinggoy’ Estrada, Yolanda T. Ricaforte, Edward Serapio, AN (sic) JOHN DOES
AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;
(b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR
INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit, public funds in the amount of ONE
HUNDRED THIRTY MILLION PESOS [P130,000,000.00], more or less, representing a portion of
the TWO HUNDRED MILLION PESOS [P200,000,000] tobacco excise tax share allocated for the
Province of Ilocor Sur under R.A. No. 7171, BY HIMSELF AND/OR in CONNIVANCE with co-accused
Charlie ‘Atong’ Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy,
and Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES AND JANE DOES;
(c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND BENEFIT, the Government
Service Insurance System (GSIS) TO PURCHASE 351,878,000 SHARES OF STOCK MORE OR LESS,
and the Social Security System (SSS), 329,855,000 SHARES OF STOCK MORE OR LESS, OF THE
BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION ONE HUNDRED TWO
MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY
CENTAVOS [P1,102,965,607.50] AND MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX
HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS [P744,612,450.00],
RESPECTIVELY, OR A TOTAL OF MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN
MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS
[P1,847,578,057.50]; AND BY COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF
AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE DOES, COMMISSIONS OR PERCENTAGES BY
 REASON OF SAID PURCHASES OF SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY
NINE MILLION SEVEN HUNDRED THOUSAND PESOS [P189,700,000.00], MORE OR LESS, FROM THE
BELLE CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK
UNDER THE ACCOUNT NAME "JOSE VELARDE";
(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES,
KICKBACKS, OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND
JANE DOES, in the amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE
MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND
SEVENTEEN CENTAVOS [P3,233,104,173.17] AND DEPOSITING THE SAME UNDER HIS ACCOUNT
NAME "JOSE VELARDE" AT THE EQUITABLE-PCI BANK.
CONTRARY TO LAW.
Manila for Quezon City, Philippines, 18 April 2001" 12
Petitioner’s contention that R.A. No. 7080 is unconstitutional as applied to him is principally perched on the premise
that the Amended Information charged him with only one act or one offense which cannot constitute plunder. He then
assails the denial of his right to bail.
Petitioner’s premise is patently false. A careful examination of the Amended Information will show that it is divided into
three (3) parts: (1) the first paragraph charges former President Joseph E. Estrada with the crime of plunder together
with petitioner Jose "Jinggoy" Estrada, Charlie "Atong" Ang, Edward Serapio, Yolanda Ricaforte and others; (2) the
second paragraph spells out in general terms how the accused conspired in committing the crime of plunder; and (3)
the following four sub-paragraphs (a) to (d) describe in detail the predicate acts constitutive of the crime of plunder
pursuant to items (1) to (6) of R.A. No. 7080, and state the names of the accused who committed each act.
Pertinent to the case at bar is the predicate act alleged in sub-paragraph (a) of the Amended Informationwhich
is of "receiving or collecting, directly or indirectly, on several instances, money in the aggregate amount of
₱545,000,000.00 for illegal gambling in the form of gift, share, percentage, kickback or any form of pecuniary benefit x
x x." In this sub-paragraph (a), petitioner, in conspiracy with former President Estrada, is charged with the act of
receiving or collecting money from illegal gambling amounting to ₱545 million. Contrary to petitioner’s posture, the
allegation is that he received or collected money from illegal gambling "on several instances." The phrase "on
several instances" means the petitioner committed the predicate act in series. To insist that the Amended
Information charged the petitioner with the commission of only one act or offense despite the phrase "several
instances" is to indulge in a twisted, nay, "pretzel" interpretation.
It matters little that sub-paragraph (a) did not utilize the exact words "combination" or "series" as they appear in R.A.
No. 7080. For in Estrada v. Sandiganbayan,13 we held that where these two terms are to be taken in their popular,
not technical, meaning, the word "series" is synonymous with the clause "on several instances." "Series" refers to a
repetition of the same predicate act in any of the items in Section 1 (d) of the law. The word "combination"
contemplates the commission of at least any two different predicate acts in any of said items. Plainly, sub-paragraph
(a) of the Amended Information charges petitioner with plunder committed by a series of the same predicate
act under Section 1 (d) (2) of the law.
Similarly misleading is petitioner’s stand that in the Ombudsman Resolution of April 4, 2001 finding probable cause to
charge him with plunder together with the other accused, he was alleged to have received only the sum of P2 million,
which amount is way below the minimum of P50 million required under R.A. No. 7080. The submission is not borne
out by the April 4, 2001 Resolution of the Ombudsman, recommending the filing of charges against petitioner and his
co-accused, which in pertinent part reads:
"x x x xxx xxx
Respondent Jose ‘Jinggoy’ Estrada, the present Mayor of San Juan, Metro Manila, appears to have also surreptitious
collection of protection money from jueteng operations in Bulacan. This is gleaned from the statements of Gov.
Singson himself and the fact that Mayor Estrada, on at least two occasions, turned over to a certain Emma Lim, an
emissary of the respondent governor, jueteng haul totalling P2 million, i.e., P1 million in January, 2000 and another P1
million in February, 2000. An alleged "listahan" of jueteng recipients listed him as one "Jingle Bell," as affirmed by
Singson [TSN 8 & Dec. 2000 SICt/17 Oct. 2000 SBRC/SCI]." 14
Hence, contrary to the representations of the petitioner, the Ombudsman made the finding that P2 million was
delivered to petitioner as "jueteng haul" on "at least two occasions." The P2 million is, therefore, not the entire
sum with which petitioner is specifically charged. This is further confirmed by the conclusion of the Ombudsman that:
"x x x xxx xxx
It is clear that Joseph Ejercito Estrada, in confabulation with Jose ‘Jinggoy’ Estrada, Atty. Edward Serapio and Yolanda
Ricaforte, demanded and received, as bribe money, the aggregate sum of P545 million from jueteng collections of the
operators thereof, channeled thru Gov. Luis ‘Chavit’ Singson, in exchange for protection from arrest or interference by
law enforcers; x x x."15
To be sure, it is too late in the day for the petitioner to argue that the Ombudsman failed to establish any probable
cause against him for plunder. The respondent Sandiganbayan itself has found probable cause against the petitioner
for which reason it issued a warrant of arrest against him. Petitioner then underwent arraignment and is now on trial.
The time to assail the finding of probable cause by the Ombudsman has long passed. The issue cannot be
resurrected in this petition.
II.
Next, petitioner contends that "the plunder law does not provide sufficient and complete standards to guide the courts
in dealing with accused alleged to have contributed to the offense." 16 Thus, he posits the following questions:
"For example, in an Information for plunder which cites at least ten criminal acts, what penalty do we impose on one
who is clearly involved in only one such criminal act? Is it reclusion perpetua? Or should it be a lesser penalty? What if
another accused is shown to have participated in three of the ten specifications, what would be the penalty imposable,
compared to one who may have been involved in five or seven of the specifications? The law does not provide the
standard or specify the penalties and the courts are left to guess. In other words, the courts are called to say what the
law is rather than to apply what the lawmaker is supposed to have intended." 17
Petitioner raises these hypothetical questions for he labors hard under the impression that: (1) he is charged with only
one act or offense and (2) he has not conspired with the other accused named in sub-paragraphs (b) to (d) of the
Amended Information, ergo, the penalty imposable on him ought to be different from reclusion perpetua to death. R.A.
No. 7080, he bewails, is cloudy on the imposable penalty on an accused similarly situated as he is. Petitioner,
however, overlooks that the second paragraph of the Amended Information charges him to have conspired with former
President Estrada in committing the crime of plunder. His alleged participation consists in the commission of the
predicate acts specified in sub-paragraph (a) of the Amended Information. If these allegations are proven, the penalty
of petitioner cannot be unclear. It will be no different from that of the former President for in conspiracy, the act of one
is the act of the other. The imposable penalty is provided in Section 2 of R.A. No. 7080, viz:
"Section 2. Any public officer who, by himself or in connivance with the members of his family, relatives by affinity or
consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten
wealth through a combination or series of overt or criminal acts as described in Section 1(d) hereof in the aggregate
amount or total value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall
be punished by reclusion perpetua to death. Any person who participated with the said public officer in the
commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the
imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as
provided by the Revised Penal Code, shall be considered by the court."
III.
Petitioner also faults the respondent Sandiganbayan for "sustaining the charge against petitioner for alleged offenses
and with alleged conspirators, with which and with whom he is not even remotely connected – contrary to the dictum
that criminal liability is personal, not vicarious – results in the denial of substantive due process." 18
The Solicitor General argues, on the other hand, that petitioner is charged not only with the predicate act in sub-
paragraph (a) but also with the other predicate acts in sub-paragraphs (b), (c) & (d) because he is indicted as a
principal and as co-conspirator of the former President. This is purportedly clear from the first and second paragraphs
of the Amended Information.19
For better focus, there is a need to examine again the allegations of the Amended Information vis-à-vis the provisions
of R.A. No. 7080.
The Amended Information, in its first two paragraphs, charges petitioner and his other co-accused with the crime of
plunder. The first paragraph names all the accused, while the second paragraph describes in general how plunder was
committed and lays down most of the elements of the crime itself. Sub-paragraphs (a) to (d) describe in detail the
predicate acts that constitute the crime and name in particular the co-conspirators of former President
Estrada in each predicate act. The predicate acts alleged in the said four sub-paragraphs correspond to the
items enumerated in Section 1 (d) of R.A. No. 7080. Sub-paragraph (a) alleged the predicate act of receiving, on
several instances, money from illegal gambling, in consideration of toleration or protection of illegal gambling, and
expressly names petitioner as one of those who conspired with former President Estrada in committing the offense.
This predicate act corresponds with the offense described in item [2] of the enumeration in Section 1 (d) of R.A. No.
7080. Sub-paragraph (b) alleged the predicate act of diverting, receiving or misappropriating a portion of the tobacco
excise tax share allocated for the province of Ilocos Sur, which act is the offense described in item [1] in the
enumeration in Section 1 (d) of the law. This sub-paragraph does not mention petitioner but instead names other
conspirators of the former President. Sub-paragraph (c) alleged two predicate acts - that of ordering the Government
Service Insurance System (GSIS) and the Social Security System (SSS) to purchase shares of stock of Belle
Corporation, and collecting or receiving commissions from such purchase from the Belle Corporation which became
part of the deposit in the "Jose Velarde" account at the Equitable-PCI Bank. These two predicate acts fall under items
[2] and [3] in the enumeration of R.A. No. 7080, and was allegedly committed by the former President in connivance
with John Does and Jane Does. Finally, sub-paragraph (d) alleged the predicate act that the former President unjustly
enriched himself from commissions, gifts, kickbacks, in connivance with John Does and Jane Does, and deposited the
same under his account name "Jose Velarde" at the Equitable-PCI Bank. This act corresponds to the offense under
item [6] in the enumeration of Section 1 (d) of R.A. No. 7080.
From the foregoing allegations of the Amended Information, it is clear that all the accused named in sub-paragraphs
(a) to (d), thru their individual acts, conspired with former President Estrada to enable the latter to amass,
accumulate or acquire ill-gotten wealth in the aggregate amount of P4,097,804,173.17. As the Amended Informationis
worded, however, it is not certain whether the accused in sub-paragraphs (a) to (d) conspired with each otherto
enable the former President to amass the subject ill-gotten wealth. In light of this lack of clarity, petitioner cannot be
penalized for the conspiracy entered into by the other accused with the former President as related in the second
paragraph of the Amended Information in relation to its sub-paragraphs (b) to (d). We hold that petitioner can be held
accountable only for the predicate acts he allegedly committed as related in sub-paragraph (a) of the Amended
Information which were allegedly done in conspiracy with the former President whose design was to amass ill-gotten
wealth amounting to more than P4 billion.
We hasten to add, however, that the respondent Ombudsman cannot be faulted for including the predicate
acts alleged in sub-paragraphs (a) to (d) of the Amended Information in one, and not in four, separate
Informations. A study of the history of R.A. No. 7080 will show that the law was crafted to avoid the mischief and folly
of filing multiple informations. The Anti-Plunder Law was enacted in the aftermath of the Marcos regime where
charges of ill-gotten wealth were filed against former President Marcos and his alleged cronies. Government
prosecutors found no appropriate law to deal with the multitude and magnitude of the acts allegedly
committed by the former President to acquire illegal wealth. 20 They also found that under the then existing laws
such as the Anti-Graft and Corrupt Practices Act, the Revised Penal Code and other special laws, the acts involved
different transactions, different time and different personalities. Every transaction constituted a separate crime and
required a separate case and the over-all conspiracy had to be broken down into several criminal and graft
charges. The preparation of multiple Informations was a legal nightmare but eventually, thirty-nine (39) separate and
independent cases were filed against practically the same accused before the Sandiganbayan. 21 R.A. No. 7080 or the
Anti-Plunder Law22 was enacted precisely to address this procedural problem. This is pellucid in the Explanatory Note
to Senate Bill No. 733, viz:
"Plunder, a term chosen from other equally apt terminologies like kleptocracy and economic treason, punishes the use
of high office for personal enrichment, committed thru a series of acts done not in the public eye but in stealth and
secrecy over a period of time, that may involve so many persons, here and abroad, and which touch so many states
and territorial units. The acts and/or omissions sought to be penalized do not involve simple cases of
malversation of public funds, bribery, extortion, theft and graft but constitute plunder of an entire nation
resulting in material damage to the national economy. The above-described crime does not yet exist in Philippine
statute books. Thus, the need to come up with a legislation as a safeguard against the possible recurrence of the
depravities of the previous regime and as a deterrent to those with similar inclination to succumb to the corrupting
influence of power."
There is no denying the fact that the "plunder of an entire nation resulting in material damage to the national economy"
is made up of a complex and manifold network of crimes. In the crime of plunder, therefore, different parties may
be united by a common purpose. In the case at bar, the different accused and their different criminal acts have a
commonality—to help the former President amass, accumulate or acquire ill-gotten wealth. Sub-paragraphs (a) to (d)
in the Amended Information alleged the different participation of each accused in the conspiracy. The gravamen of
the conspiracy charge, therefore, is not that each accused agreed to receive protection money from illegal
gambling, that each misappropriated a portion of the tobacco excise tax, that each accused ordered the GSIS and
SSS to purchase shares of Belle Corporation and receive commissions from such sale, nor that each unjustly
enriched himself from commissions, gifts and kickbacks; rather, it is that each of them, by their individual acts,
agreed to participate, directly or indirectly, in the amassing, accumulation and acquisition of ill-gotten wealth
of and/or for former President Estrada.
In the American jurisdiction, the presence of several accused in multiple conspiracies commonly involves two
structures: (1) the so-called "wheel" or "circle" conspiracy, in which there is a single person or group (the "hub")
dealing individually with two or more other persons or groups (the "spokes"); and (2) the "chain" conspiracy, usually
involving the distribution of narcotics or other contraband, in which there is successive communication and
cooperation in much the same way as with legitimate business operations between manufacturer and wholesaler, then
wholesaler and retailer, and then retailer and consumer. 23
From a reading of the Amended Information, the case at bar appears similar to a "wheel" conspiracy. The hub is
former President Estrada while the spokes are all the accused, and the rim that encloses the spokes is the common
goal in the overall conspiracy, i.e., the amassing, accumulation and acquisition of ill-gotten wealth.
IV.
Some of our distinguished colleagues would dismiss the charge against the petitioner on the ground that the allegation
of conspiracy in the Amended Information is too general. The fear is even expressed that it could serve as a net to
ensnare the innocent. Their dissents appear to be inspired by American law and jurisprudence.
We should not confuse our law on conspiracy with conspiracy in American criminal law and in common law.
Under Philippine law, conspiracy should be understood on two levels. As a general rule, conspiracy is not a
crime in our jurisdiction. It is punished as a crime only when the law fixes a penalty for its commission such
as in conspiracy to commit treason, rebellion and sedition. In contrast, under American criminal law, the
agreement or conspiracy itself is the gravamen of the offense. 24 The essence of conspiracy is the combination of
two or more persons, by concerted action, to accomplish a criminal or unlawful purpose, or some purpose not in itself
criminal or unlawful, by criminal or unlawful means.25 Its elements are: agreement to accomplish an illegal objective,
coupled with one or more overt acts in furtherance of the illegal purpose; and requisite intent necessary to commit the
underlying substantive offense.26
A study of the United States Code ought to be instructive. It principally punishes two (2) crimes of
conspiracy27 – conspiracy to commit any offense or to defraud the United States, and conspiracy to impede or injure
officer. Conspiracy to commit offense or to defraud the United States is penalized under 18 U.S.C. Sec. 371,28as
follows:
"Sec. 371. Conspiracy to commit offense or to defraud the United States. If two or more persons conspire either to
commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or
for any purpose, and one or more of such persons to any act to effect the object of the conspiracy, each shall be fined
not more than $10,000 or imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the
punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor."
Conspiracy to impede or injure officer is penalized under 18 U.S.C. Sec. 372, viz:
"Sec. 372. Conspiracy to impede or injure officer. If two or more persons in any State, Territory, Possession, or District
conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust or place of
confidence under the United States, or from discharging any duties thereof, or to induce by like means any officer of
the United States to leave the place, where his duties as an officer are required to be performed, or to injure him in his
person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful
discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his
official duties, each of such persons shall be fined not more than $5,000 or imprisoned not more than six years, or
both."
Section 371 of 18 U.S.C. punishes two acts: (1) conspiracy to commit any offense against the United States; and (2)
conspiracy to defraud the United States or any agency thereof. The conspiracy to "commit any offense against the
United States" refers to an act made a crime by federal laws. 29 It refers to an act punished by statute.30Undoubtedly,
Section 371 runs the whole gamut of U.S. Federal laws, whether criminal or regulatory. 31 These laws cover
criminal offenses such as perjury, white slave traffic, racketeering, gambling, arson, murder, theft, bank robbery, etc.
and also include customs violations, counterfeiting of currency, copyright violations, mail fraud, lotteries, violations of
antitrust laws and laws governing interstate commerce and other areas of federal regulation. 32Section 371 penalizes
the conspiracy to commit any of these substantive offenses. The offense of conspiracy is generally separate
and distinct from the substantive offense,33 hence, the court rulings that acquittal on the substantive count does not
foreclose prosecution and conviction for related conspiracy. 34
The conspiracy to "defraud the government" refers primarily to cheating the United States out of property or money. It
also covers interference with or obstruction of its lawful governmental functions by deceit, craft or trickery, or at least
by means that are dishonest.35 It comprehends defrauding the United States in any manner whatever, whether the
fraud be declared criminal or not.36
The basic difference in the concept of conspiracy notwithstanding, a study of the American case law
on howconspiracy should be alleged will reveal that it is not necessary for the indictment to include particularities
of time, place, circumstances or causes, in stating the manner and means of effecting the object of the
conspiracy. Such specificity of detail falls within the scope of a bill of particulars. 37 An indictment for conspiracy is
sufficient where it alleges: (1) the agreement; (2) the offense-object toward which the agreement was directed; and
(3) the overt acts performed in furtherance of the agreement. 38 To allege that the defendants conspired is, at least, to
state that they agreed to do the matters which are set forth as the substance of their conspiracy. To allege a
conspiracy is to allege an agreement.39 The gist of the crime of conspiracy is unlawful agreement, and where
conspiracy is charged, it is not necessary to set out the criminal object with as great a certainty as is required
in cases where such object is charged as a substantive offense. 40
In sum, therefore, there is hardly a substantial difference on how Philippine courts and American courts deal
with cases challenging Informations alleging conspiracy on the ground that they lack particularities of time,
place, circumstances or causes. In our jurisdiction, as aforestated, conspiracy can be alleged in the
Information as a mode of committing a crime or it may be alleged as constitutive of the crime itself. When
conspiracy is alleged as a crime in itself, the sufficiency of the allegations in the Information charging the
offense is governed by Section 6, Rule 110 of the Revised Rules of Criminal Procedure. It requires that the
information for this crime must contain the following averments:
"Sec. 6. Sufficiency of complaint or information.- A complaint or information is sufficient if it states the name of the
accused, the designation of the offense given by the statute; the acts or omissions complained of as constituting
the offense; the name of the offended party; the approximate date of the commission of the offense; and the place
where the offense was committed.
When the offense was committed by more than one person, all of them shall be included in the complaint or
information."
The complaint or information to be sufficient must state the name of the accused, designate the offense given by
statute, state the acts or omissions constituting the offense, the name of the offended party, the approximate date
of the commission of the offense and the place where the offense was committed.
Our rulings have long settled the issue on how the acts or omissions constituting the offense should be made in order
to meet the standard of sufficiency. Thus, the offense must be designated by its name given by statute or by reference
to the section or subsection of the statute punishing it. 41 The information must also state the acts or omissions
constituting the offense, and specify its qualifying and aggravating circumstances. 42 The acts or omissions complained
of must be alleged in such form as is sufficient to enable a person of common understanding to know what offense is
intended to be charged, and enable the court to pronounce proper judgment. 43 No information for a crime will be
sufficient if it does not accurately and clearly allege the elements of the crime charged. 44 Every element of the offense
must be stated in the information.45 What facts and circumstances are necessary to be included therein must be
determined by reference to the definitions and essentials of the specified crimes. 46 The requirement of alleging the
elements of a crime in the information is to inform the accused of the nature of the accusation against him so as to
enable him to suitably prepare his defense. The presumption is that the accused has no independent knowledge of the
facts that constitute the offense.47
To reiterate, when conspiracy is charged as a crime, the act of conspiring and all the elements of said crime
must be set forth in the complaint or information. For example, the crime of "conspiracy to commit treason" is
committed when, in time of war, two or more persons come to an agreement to levy war against the Government or to
adhere to the enemies and to give them aid or comfort, and decide to commit it. 48 The elements of this crime are: (1)
that the offender owes allegiance to the Government of the Philippines; (2) that there is a war in which the Philippines
is involved; (3) that the offender and other person or persons come to an agreement to: (a) levy war against the
government, or (b) adhere to the enemies, to give them aid and comfort; and (4) that the offender and other person or
persons decide to carry out the agreement. These elements must be alleged in the information.
The requirements on sufficiency of allegations are different when conspiracy is not charged as a crime in
itself but only as the mode of committing the crime as in the case at bar. There is less necessity of reciting its
particularities in the Information because conspiracy is not the gravamen of the offense charged. The conspiracy
is significant only because it changes the criminal liability of all the accused in the conspiracy and makes them
answerable as co-principals regardless of the degree of their participation in the crime. 49 The liability of the
conspirators is collective and each participant will be equally responsible for the acts of others, 50 for the act of one is
the act of all.51 In People v. Quitlong,52 we ruled on how conspiracy as the mode of committing the offense should
be alleged in the Information, viz:
"x x x. In embodying the essential elements of the crime charged, the information must set forth the facts and
circumstances that have a bearing on the culpability and liability of the accused so that the accused can properly
prepare for and undertake his defense. One such fact or circumstance in a complaint against two or more accused
persons is that of conspiracy. Quite unlike the omission of an ordinary recital of fact which, if not excepted from or
objected to during trial, may be corrected or supplied by competent proof, an allegation, however, of conspiracy, or
one that would impute criminal liability to an accused for the act of another or others, is indispensable in
order to hold such person, regardless of the nature and extent of his own participation, equally guilty with the
other or others in the commission of the crime. Where conspiracy exists and can rightly be appreciated, the
individual acts done to perpetrate the felony becomes of secondary importance, the act of one being imputable to all
the others (People v. Ilano, 313 SCRA 442). Verily, an accused must know from the information whether he faces a
criminal responsibility not only for his acts but also for the acts of his co-accused as well.
A conspiracy indictment need not, of course, aver all the components of conspiracy or allege all the details
thereof, like the part that each of the parties therein have performed, the evidence proving the common
design or the facts connecting all the accused with one another in the web of the conspiracy. Neither is it
necessary to describe conspiracy with the same degree of particularity required in describing a substantive
offense. It is enough that the indictment contains a statement of facts relied upon to be constitutive of the
offense in ordinary and concise language, with as much certainty as the nature of the case will admit, in a
manner that can enable a person of common understanding to know what is intended, and with such
precision that the accused may plead his acquittal or conviction to a subsequent indictment based on the
same facts. It is said, generally, that an indictment may be held sufficient "if it follows the words of the statute and
reasonably informs the accused of the character of the offense he is charged with conspiring to commit, or, following
the language of the statute, contains a sufficient statement of an overt act to effect the object of the conspiracy, or
alleges both the conspiracy and the contemplated crime in the language of the respective statutes defining them (15A
C.J.S. 842-844).
xxx xxx xxx
x x x. Conspiracy arises when two or more persons come to an agreement concerning the commission of a felony and
decide to commit it. Conspiracy comes to life at the very instant the plotters agree, expressly or impliedly, to commit
the felony and forthwith to actually pursue it. Verily, the information must state that the accused have
confederated to commit the crime or that there has been a community of design, a unity of purpose or an
agreement to commit the felony among the accused. Such an allegation, in the absence of the usual usage of
the words "conspired" or "confederated" or the phrase "acting in conspiracy," must aptly appear in the
information in the form of definitive acts constituting conspiracy. In fine, the agreement to commit the crime,
the unity of purpose or the community of design among the accused must be conveyed such as either by the
use of the term "conspire" or its derivatives and synonyms or by allegations of basic facts constituting the
conspiracy. Conspiracy must be alleged, not just inferred, in the information on which basis an accused can
aptly enter his plea, a matter that is not to be confused with or likened to the adequacy of evidence that may
be required to prove it. In establishing conspiracy when properly alleged, the evidence to support it need not
necessarily be shown by direct proof but may be inferred from shown acts and conduct of the accused.
xxx xxx x x x."
Again, following the stream of our own jurisprudence, it is enough to allege conspiracy as a mode in the
commission of an offense in either of the following manner: (1) by use of the word "conspire," or its derivatives or
synonyms, such as confederate, connive, collude, etc; 53 or (2) by allegations of basic facts constituting the conspiracy
in a manner that a person of common understanding would know what is intended, and with such precision as would
enable the accused to competently enter a plea to a subsequent indictment based on the same facts. 54
The allegation of conspiracy in the information must not be confused with the adequacy of evidence that may
be required to prove it. A conspiracy is proved by evidence of actual cooperation; of acts indicative of an agreement,
a common purpose or design, a concerted action or concurrence of sentiments to commit the felony and actually
pursue it.55 A statement of this evidence is not necessary in the information.
In the case at bar, the second paragraph of the Amended Information alleged in general terms how the
accused committed the crime of plunder. It used the words "in connivance/conspiracy with his co-accused."
Following the ruling in Quitlong, these words are sufficient to allege the conspiracy of the accused with the former
President in committing the crime of plunder.
V.
We now come to petitioner’s plea for bail. On August 14, 2002, during the pendency of the instant petition before this
Court, petitioner filed with respondent Sandiganbayan an "Urgent Second Motion for Bail for Medical Reasons."
Petitioner prayed that he be allowed to post bail due to his serious medical condition which is life-threatening to him if
he goes back to his place of detention.1âwphi1 The motion was opposed by respondent Ombudsman to which
petitioner replied.
For three days, i.e., on September 4, 20 and 27, 2001, respondent Sandiganbayan conducted hearings on the motion
for bail. Dr. Roberto V. Anastacio, a cardiologist of the Makati Medical Center, testified as sole witness for petitioner.
On December 18, 2001, petitioner filed with the Supreme Court an "Urgent Motion for Early/Immediate Resolution of
Jose ‘Jinggoy’ Estrada’s Petition for Bail on Medical/Humanitarian Considerations." Petitioner reiterated the motion for
bail he earlier filed with respondent Sandiganbayan.56
On the same day, we issued a Resolution referring the motion to respondent Sandiganbayan for resolution and
requiring said court to make a report, not later than 8:30 in the morning of December 21, 2001.
On December 21, 2001, respondent court submitted its Report. Attached to the Report was its Resolution dated
December 20, 2001 denying petitioner’s motion for bail for "lack of factual basis." 57 Basing its finding on the earlier
testimony of Dr. Anastacio, the Sandiganbayan found that petitioner "failed to submit sufficient evidence to convince
the court that the medical condition of the accused requires that he be confined at home and for that purpose that he
be allowed to post bail."58
The crime of plunder is punished by R.A. No. 7080, as amended by Section 12 of R.A. No. 7659, with the penalty
of reclusion perpetua to death. Under our Rules, offenses punishable by death, reclusion perpetua or life
imprisonment are non-bailable when the evidence of guilt is strong, to wit:
"Sec. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. – No person
charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted
to bail when evidence of guilt is strong, regardless of the stage of the criminal prosecution." 59
Section 7, Rule 114 of the Revised Rules of Criminal Procedure is based on Section 13, Article III of the 1987
Constitution which reads:
"Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is
strong, shall, before conviction be bailable by sufficient sureties, or be released on recognizance as may be provided
by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended.
Excessive bail shall not be required."
The constitutional mandate makes the grant or denial of bail in capital offenses hinge on the issue of whether or not
the evidence of guilt of the accused is strong. This requires that the trial court conduct bail hearings wherein both
the prosecution and the defense are afforded sufficient opportunity to present their respective evidence. The burden of
proof lies with the prosecution to show strong evidence of guilt. 60
This Court is not in a position to grant bail to the petitioner as the matter requires evidentiary hearing that should be
conducted by the Sandiganbayan. The hearings on which respondent court based its Resolution of December 20,
2001 involved the reception of medical evidence only and which evidence was given in September 2001, five months
ago. The records do not show that evidence on petitioner’s guilt was presented before the lower court.
Upon proper motion of the petitioner, respondent Sandiganbayan should conduct hearings to determine if the
evidence of petitioner’s guilt is strong as to warrant the granting of bail to petitioner.
IN VIEW WHEREOF, the petition is dismissed for failure to show that the respondent Sandiganbayan acted without or
in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction.
SO ORDERED.