G.R. No.

170281

January 18, 2008

REPUBLIC OF THE PHILIPPINES, represented by the ANTI-MONEY LAUNDERING COUNCIL, petitioner, vs. GLASGOW CREDIT AND COLLECTION SERVICES, INC. and CITYSTATE SAVINGS BANK, INC., respondents. DECISION CORONA, J.: This is a petition for review1 of the order2 dated October 27, 2005 of the Regional Trial Court (RTC) of Manila, Branch 47, 3 dismissing the complaint for forfeiture filed by the Republic of the Philippines, represented by the Anti-Money Laundering Council (AMLC) against respondents Glasgow Credit and Collection Services, Inc. (Glasgow) and Citystate Savings Bank, Inc. (CSBI). On July 18, 2003, the Republic filed a complaint in the RTC Manila for civil forfeiture of assets (with urgent plea for issuance of temporary restraining order [TRO] and/or writ of preliminary injunction) against the bank deposits in account number CA-005-10-000121-5 maintained by Glasgow in CSBI. The case, filed pursuant to RA 9160 (the Anti-Money Laundering Act of 2001), as amended, was docketed as Civil Case No. 03-107319. Acting on the Republics urgent plea for the issuance of a TRO, the executive judge4 of RTC Manila issued a 72-hour TRO dated July 21, 2003. The case was thereafter raffled to Branch 47 and the hearing on the application for issuance of a writ of preliminary injunction was set on August 4, 2003. After hearing, the trial court (through then Presiding Judge Marivic T. Balisi-Umali) issued an order granting the issuance of a writ of preliminary injunction. The injunctive writ was issued on August 8, 2003. Meanwhile, summons to Glasgow was returned "unserved" as it could no longer be found at its last known address. On October 8, 2003, the Republic filed a verified omnibus motion for (a) issuance of alias summons and (b) leave of court to serve summons by publication. In an order dated October 15, 2003, the trial court directed the issuance of alias summons. However, no mention was made of the motion for leave of court to serve summons by publication.

In an order dated January 30, 2004, the trial court archived the case allegedly for failure of the Republic to serve the alias summons. The Republic filed an ex parte omnibus motion to (a) reinstate the case and (b) resolve its pending motion for leave of court to serve summons by publication. In an order dated May 31, 2004, the trial court ordered the reinstatement of the case and directed the Republic to serve the alias summons on Glasgow and CSBI within 15 days. However, it did not resolve the Republics motion for leave of court to serve summons by publication declaring: Until and unless a return is made on the alias summons, any action on [the Republics] motion for leave of court to serve summons by publication would be untenable if not premature. On July 12, 2004, the Republic (through the Office of the Solicitor General [OSG]) received a copy of the sheriffs return dated June 30, 2004 stating that the alias summons was returned "unserved" as Glasgow was no longer holding office at the given address since July 2002 and left no forwarding address. Meanwhile, the Republics motion for leave of court to serve summons by publication remained unresolved. Thus, on August 11, 2005, the Republic filed a manifestation and ex parte motion to resolve its motion for leave of court to serve summons by publication. On August 12, 2005, the OSG received a copy of Glasgows "Motion to Dismiss (By Way of Special Appearance)" dated August 11, 2005. It alleged that (1) the court had no jurisdiction over its person as summons had not yet been served on it; (2) the complaint was premature and stated no cause of action as there was still no conviction for estafa or other criminal violations implicating Glasgow and (3) there was failure to prosecute on the part of the Republic. The Republic opposed Glasgows motion to dismiss. It contended that its suit was an action quasi in rem where jurisdiction over the person of the defendant was not a prerequisite to confer jurisdiction on the court. It asserted that prior conviction for unlawful activity was not a precondition to the filing of a civil forfeiture case and that its complaint alleged ultimate facts sufficient to establish a cause of action. It denied that it failed to prosecute the case. On October 27, 2005, the trial court issued the assailed order. It dismissed the case on the following grounds: (1) improper venue as it should have been filed in the RTC of Pasig where CSBI, the depository bank of the account sought to be

forfeited, was located; (2) insufficiency of the complaint in form and substance and (3) failure to prosecute. It lifted the writ of preliminary injunction and directed CSBI to release to Glasgow or its authorized representative the funds in CA-00510-000121-5. Raising questions of law, the Republic filed this petition. On November 23, 2005, this Court issued a TRO restraining Glasgow and CSBI, their agents, representatives and/or persons acting upon their orders from implementing the assailed October 27, 2005 order. It restrained Glasgow from removing, dissipating or disposing of the funds in account no. CA-005-10-000121-5 and CSBI from allowing any transaction on the said account. The petition essentially presents the following issue: whether the complaint for civil forfeiture was correctly dismissed on grounds of improper venue, insufficiency in form and substance and failure to prosecute. The Court agrees with the Republic. The Complaint In The Proper Venue Was Filed

In its assailed order, the trial court cited the grounds raised by Glasgow in support of its motion to dismiss: 1. That this [c]ourt has no jurisdiction over the person of Glasgow considering that no [s]ummons has been served upon it, and it has not entered its appearance voluntarily; 2. That the [c]omplaint for forfeiture is premature because of the absence of a prior finding by any tribunal that Glasgow was engaged in unlawful activity: [i]n connection therewith[,] Glasgow argues that the [c]omplaint states no cause of action; and 3. That there is failure to prosecute, in that, up to now, summons has yet to be served upon Glasgow.5 But inasmuch as Glasgow never questioned the venue of the Republics complaint for civil forfeiture against it, how could the trial court have dismissed the complaint for improper venue? In Dacoycoy v. Intermediate Appellate Court6

(reiterated in Rudolf Lietz Holdings, Inc. v. Registry of Deeds of Paraaque City),7 this Court ruled: The motu proprio dismissal of petitioners complaint by [the] trial court on the ground of improper venue is plain error. (emphasis supplied) At any rate, the trial court was a proper venue. On November 15, 2005, this Court issued A.M. No. 05-11-04SC, the Rule of Procedure in Cases of Civil Forfeiture, Asset Preservation, and Freezing of Monetary Instrument, Property, or Proceeds Representing, Involving, or Relating to an Unlawful Activity or Money Laundering Offense under RA 9160, as amended (Rule of Procedure in Cases of Civil Forfeiture). The order dismissing the Republics complaint for civil forfeiture of Glasgows account in CSBI has not yet attained finality on account of the pendency of this appeal. Thus, the Rule of Procedure in Cases of Civil Forfeiture 8 applies to the Republics complaint. Moreover, Glasgow itself judicially admitted that the Rule of Procedure in Cases of Civil Forfeiture is "applicable to the instant case."9 Section 3, Title II (Civil Forfeiture in the Regional Trial Court) of the Rule of Procedure in Cases of Civil Forfeiture provides: Sec. 3. Venue of cases cognizable by the regional trial court. A petition for civil forfeiture shall be filed in any regional trial court of the judicial region where the monetary instrument, property or proceeds representing, involving, or relating to an unlawful activity or to a money laundering offense are located; provided, however, that where all or any portion of the monetary instrument, property or proceeds is located outside the Philippines, the petition may be filed in the regional trial court in Manila or of the judicial region where any portion of the monetary instrument, property, or proceeds is located, at the option of the petitioner. (emphasis supplied) Under Section 3, Title II of the Rule of Procedure in Cases of Civil Forfeiture, therefore, the venue of civil forfeiture cases is any RTC of the judicial region where the monetary instrument, property or proceeds representing, involving, or relating to an unlawful activity or to a money laundering offense are located. Pasig City, where the account sought to be forfeited in this case is situated, is within the National Capital Judicial Region (NCJR). Clearly, the complaint for civil forfeiture of the account may be filed in any RTC of the NCJR. Since the RTC Manila is one of the RTCs of the

NCJR, it was a proper venue of the Republics complaint for civil forfeiture of Glasgows account. The Complaint Was Sufficient In Form And Substance In the assailed order, the trial court evaluated the Republics complaint to determine its sufficiency in form and substance: (g) Pursuant to said AMLC Resolutions, Freeze Orders Nos. 008-010, 011 and 013 were issued on different dates, addressed to the concerned banks; (h) The facts At the outset, this [c]ourt, before it proceeds, takes the opportunity to examine the [c]omplaint and determine whether it is sufficient in form and substance. Before this [c]ourt is a [c]omplaint for Civil Forfeiture of Assets filed by the [AMLC], represented by the Office of the Solicitor General[,] against Glasgow and [CSBI] as necessary party. The [c]omplaint principally alleges the following: (a) Glasgow is a corporation existing under the laws of the Philippines, with principal office address at Unit 703, 7th Floor, Citystate Center [Building], No. 709 Shaw Boulevard[,] Pasig City; (b) [CSBI] is a corporation existing under the laws of the Philippines, with principal office at Citystate Center Building, No. 709 Shaw Boulevard, Pasig City; (c) Glasgow has funds in the amount of P21,301,430.28 deposited with [CSBI], under CA 005-10-000121-5; (d) As events have proved, aforestated bank account is related to the unlawful activities of Estafa and violation of Securities Regulation Code; (e) The deposit has been subject of Suspicious Transaction Reports; (f) After appropriate investigation, the AMLC issued Resolutions No. 094 (dated July 10, 2002), 096 (dated July 12, 2002), 101 (dated July 23, 2002), and 108 (dated August 2, 2002), directing the issuance of freeze orders against the bank accounts of Glasgow; and circumstances plainly showing that defendant Glasgows bank account and deposit are related to the unlawful activities of Estafa and violation of Securities Regulation Code, as well as to a money laundering offense [which] [has] been summarized by the AMLC in its Resolution No. 094; and

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(i) Because defendant Glasgows bank account and deposits are related to the unlawful activities of Estafa and violation of Securities Regulation Code, as well as [to] money laundering offense as aforestated, and being the subject of covered transaction reports and eventual freeze orders, the same should properly be forfeited in favor of the government in accordance with Section 12, 11 R.A. 9160, as amended. In a motion to dismiss for failure to state a cause of action, the focus is on the sufficiency, not the veracity, of the material 12 allegations. The determination is confined to the four 13 corners of the complaint and nowhere else. In a motion to dismiss a complaint based on lack of cause of action, the question submitted to the court for determination is the sufficiency of the allegations made in the complaint to constitute a cause of action and not whether those allegations of fact are true, for said motion must hypothetically admit the truth of the facts alleged in the complaint. The test of the sufficiency of the facts alleged in the complaint is whether or not, admitting the facts alleged, the court could render a valid judgment upon the same in accordance 14 with the prayer of the complaint. (emphasis ours) In this connection, Section 4, Title II of the Rule of Procedure in Cases of Civil Forfeiture provides: Sec. 4. Contents of the petition for civil forfeiture. The petition for civil forfeiture shall be verified and contain the following allegations: (a) The name and address of the respondent; (b) A description with reasonable particularity of the monetary instrument, property, or proceeds, and their location; and (c) The acts or omissions prohibited by and the specific provisions of the Anti-Money Laundering Act, as amended, which are alleged to be the grounds relied upon for the forfeiture of the monetary instrument, property, or proceeds; and [(d)] The reliefs prayed for. Here, the verified complaint of the Republic contained the following allegations:

(a) the name and address of the primary 15 defendant therein, Glasgow; (b) a description of the proceeds of Glasgows unlawful activities with particularity, as well as the location thereof, account no. CA-005-10-000121-5 in the amount of P21,301,430.28 maintained with CSBI; (c) the acts prohibited by and the specific provisions of RA 9160, as amended, constituting the grounds for the forfeiture of the said proceeds. In particular, suspicious transaction reports showed that Glasgow engaged in unlawful activities of estafa and violation of the Securities Regulation Code (under Section 3(i)(9) and (13), RA 9160, as amended); the proceeds of the unlawful activities were transacted and deposited with CSBI in account no. CA-005-10-000121-5 thereby making them appear to have originated from legitimate sources; as such, Glasgow engaged in money laundering (under Section 4, RA 9160, as amended); and the AMLC subjected the account to freeze order and (d) the reliefs prayed for, namely, the issuance of a TRO or writ of preliminary injunction and the forfeiture of the account in favor of the government as well as other reliefs just and equitable under the premises. The form and substance of the Republics complaint substantially conformed with Section 4, Title II of the Rule of Procedure in Cases of Civil Forfeiture. Moreover, Section 12(a) of RA 9160, as amended, provides: SEC. 12. Forfeiture Provisions. (a) Civil Forfeiture. When there is a covered transaction report made, and the court has, in a petition filed for the purpose ordered seizure of any monetary instrument or property, in whole or in part, directly or indirectly, related to said report, the Revised Rules of Court on civil forfeiture shall apply. In relation thereto, Rule 12.2 of the Revised Implementing Rules and Regulations of RA 9160, as amended, states: RULE 12 Forfeiture Provisions xxx xxx xxx Rule 12.2. When Civil Forfeiture May be Applied. When there is a SUSPICIOUS TRANSACTION REPORT OR A COVERED TRANSACTION REPORT DEEMED SUSPICIOUS AFTER INVESTIGATION BY THE AMLC, and the court has, in a petition filed for the purpose, ordered the seizure of any monetary instrument or property, in whole or in part, directly or indirectly, related to

said report, the Revised Rules of Court on civil forfeiture shall apply. RA 9160, as amended, and its implementing rules and regulations lay down two conditions when applying for civil forfeiture: (1) when there is a suspicious transaction report or a covered transaction report deemed suspicious after investigation by the AMLC and (2) the court has, in a petition filed for the purpose, ordered the seizure of any monetary instrument or property, in whole or in part, directly or indirectly, related to said report. It is the preliminary seizure of the property in question which 16 brings it within the reach of the judicial process. It is actually within the courts possession when it is submitted to the 17 process of the court. The injunctive writ issued on August 8, 2003 removed account no. CA-005-10-000121-5 from the effective control of either Glasgow or CSBI or their representatives or agents and subjected it to the process of the court. Since account no. CA-005-10-000121-5 of Glasgow in CSBI was (1) covered by several suspicious transaction reports and (2) placed under the control of the trial court upon the issuance of the writ of preliminary injunction, the conditions provided in Section 12(a) of RA 9160, as amended, were satisfied. Hence, the Republic, represented by the AMLC, properly instituted the complaint for civil forfeiture. Whether or not there is truth in the allegation that account no. CA-005-10-000121-5 contains the proceeds of unlawful activities is an evidentiary matter that may be proven during trial. The complaint, however, did not even have to show or allege that Glasgow had been implicated in a conviction for, or the commission of, the unlawful activities of estafa and violation of the Securities Regulation Code. A criminal conviction for an unlawful activity is not a prerequisite for the institution of a civil forfeiture proceeding. Stated otherwise, a finding of guilt for an unlawful activity is not an essential element of civil forfeiture. Section 6 of RA 9160, as amended, provides: SEC. 6. Prosecution of Money Laundering. (a) Any person may be charged with and convicted of both the offense of money laundering and the unlawful activity as herein defined.

(b) Any proceeding relating to the unlawful activity shall be given precedence over the prosecution of any offense or violation under this Act without prejudice to the freezing and other remedies provided. (emphasis supplied) Rule 6.1 of the Revised Implementing Rules and Regulations of RA 9160, as amended, states: Rule 6.1. Prosecution of Money Laundering (a) Any person may be charged with and convicted of both the offense of money laundering and the unlawful activity as defined under Rule 3(i) of the AMLA. (b) Any proceeding relating to the unlawful activity shall be given precedence over the prosecution of any offense or violation under the AMLA without prejudice to the application ex-parte by the AMLC to the Court of Appeals for a freeze order with respect to the monetary instrument or property involved therein and resort to other remedies provided under the AMLA, the Rules of Court and other pertinent laws and rules . (emphasis supplied) Finally, Section 27 of the Rule of Procedure in Cases of Civil Forfeiture provides: Sec. 27. No prior charge, pendency or conviction necessary. No prior criminal charge, pendency of or conviction for an unlawful activity or money laundering offense is necessary for the commencement or the resolution of a petition for civil forfeiture. (emphasis supplied) Thus, regardless of the absence, pendency or outcome of a criminal prosecution for the unlawful activity or for money laundering, an action for civil forfeiture may be separately and independently prosecuted and resolved. There Was No Failure To Prosecute The trial court faulted the Republic for its alleged failure to prosecute the case. Nothing could be more erroneous.

Immediately after the complaint was filed, the trial court ordered its deputy sheriff/process server to serve summons and notice of the hearing on the application for issuance of TRO and/or writ of preliminary injunction. The subpoena to Glasgow was, however, returned unserved as Glasgow "could no longer be found at its given address" and had moved out of the building since August 1, 2002. Meanwhile, after due hearing, the trial court issued a writ of preliminary injunction enjoining Glasgow from removing, dissipating or disposing of the subject bank deposits and CSBI from allowing any transaction on, withdrawal, transfer, removal, dissipation or disposition thereof. As the summons on Glasgow was returned "unserved," and considering that its whereabouts could not be ascertained despite diligent inquiry, the Republic filed a verified omnibus motion for (a) issuance of alias summons and (b) leave of court to serve summons by publication on October 8, 2003. While the trial court issued an alias summons in its order dated October 15, 2003, it kept quiet on the prayer for leave of court to serve summons by publication. Subsequently, in an order dated January 30, 2004, the trial court archived the case for failure of the Republic to cause the service of alias summons. The Republic filed an ex parte omnibus motion to (a) reinstate the case and (b) resolve its pending motion for leave of court to serve summons by publication. In an order dated May 31, 2004, the trial court ordered the reinstatement of the case and directed the Republic to cause the service of the alias summons on Glasgow and CSBI within 15 days. However, it deferred its action on the Republics motion for leave of court to serve summons by publication until a return was made on the alias summons. Meanwhile, the Republic continued to exert efforts to obtain information from other government agencies on the whereabouts or current status of respondent Glasgow if only to save on expenses of publication of summons. Its efforts, however, proved futile. The records on file with the Securities and Exchange Commission provided no information. Other inquiries yielded negative results. On July 12, 2004, the Republic received a copy of the sheriffs return dated June 30, 2004 stating that the alias summons had been returned "unserved" as Glasgow was no longer holding office at the given address since July 2002 and left no forwarding address. Still, no action was taken by the trial court on the Republics motion for leave of court to serve summons by publication. Thus, on August 11, 2005, the

Republic filed a manifestation and ex parte motion to resolve its motion for leave of court to serve summons by publication. It was at that point that Glasgow filed a motion to dismiss by way of special appearance which the Republic vigorously opposed. Strangely, to say the least, the trial court issued the assailed order granting Glasgows motion. Given these circumstances, how could the Republic be faulted for failure to prosecute the complaint for civil forfeiture? While there was admittedly a delay in the proceeding, it could not be entirely or primarily ascribed to the Republic. That Glasgows whereabouts could not be ascertained was not only beyond the Republics control, it was also attributable to Glasgow which left its principal office address without informing the Securities and Exchange Commission or any official regulatory body (like the Bureau of Internal Revenue or the Department of Trade and Industry) of its new address. Moreover, as early as October 8, 2003, the Republic was already seeking leave of court to serve summons by publication. In Marahay v. Melicor,18 this Court ruled: While a court can dismiss a case on the ground of non prosequitur, the real test for the exercise of such power is whether, under the circumstances, plaintiff is chargeable with want of due diligence in failing to proceed with reasonable promptitude. In the absence of a pattern or scheme to delay the disposition of the case or a wanton failure to observe the mandatory requirement of the rules on the part of the plaintiff, as in the case at bar, courts should decide to dispense with rather than wield their authority to dismiss . (emphasis supplied) We see no pattern or scheme on the part of the Republic to delay the disposition of the case or a wanton failure to observe the mandatory requirement of the rules. The trial court should not have so eagerly wielded its power to dismiss the Republics complaint. Service May Be By Publication Of Summons

forfeiture of the properties either acquired illegally or related to unlawful activities in favor of the State. As an action in rem, it is a proceeding against the thing itself instead of against the person.20 In actions in rem or quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to conferring jurisdiction on the court, provided 21 that the court acquires jurisdiction over the res. Nonetheless, summons must be served upon the defendant in order to satisfy the requirements of due process.22 For this purpose, service may be made by publication as such mode 23 of service is allowed in actions in rem and quasi in rem. In this connection, Section 8, Title II of the Rule of Procedure in Cases of Civil Forfeiture provides: Sec. 8. Notice and manner of service. - (a) The respondent shall be given notice of the petition in the same manner as service of summons under Rule 14 of the Rules of Court and the following rules: 1. The notice shall be served on respondent personally, or by any other means prescribed in Rule 14 of the Rules of Court; 2. The notice shall contain: (i) the title of the case; (ii) the docket number; (iii) the cause of action; and (iv) the relief prayed for; and 3. The notice shall likewise contain a proviso that, if no comment or opposition is filed within the reglementary period, the court shall hear the case ex parte and render such judgment as may be warranted by the facts alleged in the petition and its supporting evidence. (b) Where the respondent is designated as an unknown owner or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication of the notice of the petition in a newspaper of general circulation in such places and for such time as the court may order. In the event that the cost of publication exceeds the value or amount of the property to be forfeited by ten percent, publication shall not be required. (emphasis supplied) WHEREFORE, the petition is hereby GRANTED. The October 27, 2005 order of the Regional Trial Court of Manila, Branch 47, in Civil Case No. 03-107319 is SET ASIDE. The August 11, 2005 motion to dismiss of Glasgow Credit and

In Republic v. Sandiganbayan,19 this Court declared that the rule is settled that forfeiture proceedings are actions in rem. While that case involved forfeiture proceedings under RA 1379, the same principle applies in cases for civil forfeiture under RA 9160, as amended, since both cases do not terminate in the imposition of a penalty but merely in the

Collection Services, Inc. is DENIED. And the complaint for forfeiture of the Republic of the Philippines, represented by the Anti-Money Laundering Council, is REINSTATED. The case is hereby REMANDED to the Regional Trial Court of Manila, Branch 47 which shall forthwith proceed with the case pursuant to the provisions of A.M. No. 05-11-04-SC. Pending final determination of the case, the November 23, 2005 temporary restraining order issued by this Court is hereby MAINTAINED. SO ORDERED. G.R. No. 174629 February 14, 2008

arbitration cases filed in relation to the NAIA 3 Project. The CIS conducted an intelligence database search on the financial transactions of certain individuals involved in the award, including respondent Pantaleon Alvarez (Alvarez) who had been the Chairman of the PBAC Technical Committee, NAIA-IPT3 Project.5 By this time, Alvarez had already been charged by the Ombudsman with violation of Section 3(j) of R.A. No. 3019.6 The search revealed that Alvarez maintained 7 eight (8) bank accounts with six (6) different banks. On 27 June 2005, the AMLC issued Resolution No. 75, 8 Series of 2005, whereby the Council resolved to authorize the Executive Director of the AMLC "to sign and verify an application to inquire into and/or examine the [deposits] or investments of Pantaleon Alvarez, Wilfredo Trinidad, Alfredo Liongson, and Cheng Yong, and their related web of accounts wherever these may be found, as defined under Rule 10.4 of the Revised Implementing Rules and Regulations;" and to authorize the AMLC Secretariat "to conduct an inquiry into subject accounts once the Regional Trial Court grants the application to inquire into and/or examine the bank accounts" of those four individuals.9 The resolution enumerated the particular bank accounts of Alvarez, Wilfredo Trinidad (Trinidad), Alfredo Liongson (Liongson) and Cheng Yong which were to be the subject of the inquiry.10 The rationale for the said resolution was founded on the cited findings of the CIS that amounts were transferred from a Hong Kong bank account owned by Jetstream Pacific Ltd. Account to bank accounts in the Philippines maintained by Liongson and Cheng Yong.11 The Resolution also noted that "[b]y awarding the contract to PIATCO despite its lack of financial capacity, Pantaleon Alvarez caused undue injury to the government by giving PIATCO unwarranted benefits, advantage, or preference in the discharge of his official administrative functions through manifest partiality, evident bad faith, or gross inexcusable negligence, in violation of Section 3(e) of Republic Act No. 3019."12 Under the authority granted by the Resolution, the AMLC filed an application to inquire into or examine the deposits or investments of Alvarez, Trinidad, Liongson and Cheng Yong before the RTC of Makati, Branch 138, presided by Judge (now Court of Appeals Justice) Sixto Marella, Jr. The application was docketed as AMLC No. 05-005.13 The Makati RTC heard the testimony of the Deputy Director of the AMLC, Richard David C. Funk II, and received the documentary evidence of the AMLC.14 Thereafter, on 4 July 2005, the Makati RTC rendered an Order (Makati RTC bank inquiry order) granting the AMLC the authority to inquire and examine the subject bank accounts of Alvarez, Trinidad, Liongson and Cheng Yong, the trial court being satisfied that there existed "[p]robable cause [to] believe that the deposits in various bank accounts, details of which appear in paragraph 1 of the Application, are related to the offense of violation of Anti-Graft and Corrupt Practices Act now the subject of criminal prosecution before the Sandiganbayan as

attested to by the Informations, Exhibits C, D, E, F, and G." Pursuant to the Makati RTC bank inquiry order, the CIS proceeded to inquire and examine the deposits, investments 16 and related web accounts of the four.

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Meanwhile, the Special Prosecutor of the Office of the Ombudsman, Dennis Villa-Ignacio, wrote a letter dated 2 November 2005, requesting the AMLC to investigate the accounts of Alvarez, PIATCO, and several other entities involved in the nullified contract. The letter adverted to probable cause to believe that the bank accounts "were used in the commission of unlawful activities that were committed" in relation to the criminal cases then pending before the 17 Sandiganbayan. Attached to the letter was a memorandum "on why the investigation of the [accounts] is necessary in the prosecution of the above criminal cases before the 18 Sandiganbayan." In response to the letter of the Special Prosecutor, the AMLC promulgated on 9 December 2005 Resolution No. 121 Series of 2005,19 which authorized the executive director of the AMLC to inquire into and examine the accounts named in the letter, including one maintained by Alvarez with DBS Bank and two other accounts in the name of Cheng Yong with Metrobank. The Resolution characterized the memorandum attached to the Special Prosecutors letter as "extensively justif[ying] the existence of probable cause that the bank accounts of the persons and entities mentioned in the letter are related to the unlawful activity of violation of Sections 3(g) and 3(e) of Rep. Act No. 3019, as amended."20 Following the December 2005 AMLC Resolution, the Republic, through the AMLC, filed an application21 before the Manila RTC to inquire into and/or examine thirteen (13) accounts and two (2) related web of accounts alleged as having been used to facilitate corruption in the NAIA 3 Project. Among said accounts were the DBS Bank account of Alvarez and the Metrobank accounts of Cheng Yong. The case was raffled to Manila RTC, Branch 24, presided by respondent Judge Antonio Eugenio, Jr., and docketed as SP Case No. 06-114200. On 12 January 2006, the Manila RTC issued an Order (Manila RTC bank inquiry order) granting the Ex Parte Application expressing therein "[that] the allegations in said application to be impressed with merit, and in conformity with Section 11 of R.A. No. 9160, as amended, otherwise known as the Anti-Money Laundering Act (AMLA) of 2001 and Rules 11.1 and 11.2 of the Revised Implementing Rules and Regulations."22 Authority was thus granted to the AMLC to inquire into the bank accounts listed therein. On 25 January 2006, Alvarez, through counsel, entered his appearance23 before the Manila RTC in SP Case No. 06-

REPUBLIC OF THE PHILIPPINES, Represented by THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), petitioner, vs. HON. ANTONIO M. EUGENIO, JR., AS PRESIDING JUDGE OF RTC, MANILA, BRANCH 34, PANTALEON ALVAREZ and LILIA CHENG, respondents. DECISION TINGA, J.: The present petition for certiorari and prohibition under Rule 65 assails the orders and resolutions issued by two different courts in two different cases. The courts and cases in question are the Regional Trial Court of Manila, Branch 24, which heard SP Case No. 06-1142001 and the Court of Appeals, Tenth Division, which heared CA-G.R. SP No. 95198.2 Both cases arose as part of the aftermath of the ruling of this Court in Agan v. PIATCO3 nullifying the concession agreement awarded to the Philippine International Airport Terminal Corporation (PIATCO) over the Ninoy Aquino International Airport International Passenger Terminal 3 (NAIA 3) Project. I. Following the promulgation of Agan, a series of investigations concerning the award of the NAIA 3 contracts to PIATCO were undertaken by the Ombudsman and the Compliance and Investigation Staff (CIS) of petitioner Anti-Money Laundering Council (AMLC). On 24 May 2005, the Office of the Solicitor General (OSG) wrote the AMLC requesting the latters assistance "in obtaining more evidence to completely reveal the financial trail of corruption surrounding the [NAIA 3] Project," and also noting that petitioner Republic of the Philippines was presently defending itself in two international

114200 and filed an Urgent Motion to Stay Enforcement of 24 Order of January 12, 2006. Alvarez alleged that he fortuitously learned of the bank inquiry order, which was issued following an ex parte application, and he argued that nothing in R.A. No. 9160 authorized the AMLC to seek the authority to inquire into bank accounts ex parte.25 The day after Alvarez filed his motion, 26 January 2006, the Manila RTC issued an Order26 staying the enforcement of its bank inquiry order and giving the Republic five (5) days to respond to Alvarezs motion. The Republic filed an Omnibus Motion for Reconsideration of the 26 January 2006 Manila RTC Order and likewise sought to strike out Alvarezs motion that led to the issuance of said order. For his part, Alvarez filed a Reply and Motion to Dismiss28 the application for bank inquiry order. On 2 May 29 2006, the Manila RTC issued an Omnibus Order granting the Republics Motion for Reconsideration, denying Alvarezs motion to dismiss and reinstating "in full force and effect" the Order dated 12 January 2006. In the omnibus order, the Manila RTC reiterated that the material allegations in the application for bank inquiry order filed by the Republic stood as "the probable cause for the investigation and examination of the bank accounts and investments of the respondents."30
27

been filed." On the same day, Alvarez filed a Notice of Appeal37 with the Manila RTC. On 24 July 2006, Alvarez filed an Urgent Ex Parte Motion for Clarification.38 Therein, he alleged having learned that the AMLC had began to inquire into the bank accounts of the other persons mentioned in the application for bank inquiry 39 order filed by the Republic. Considering that the Manila RTC bank inquiry order was issued ex parte, without notice to those other persons, Alvarez prayed that the AMLC be ordered to refrain from inquiring into any of the other bank deposits and alleged web of accounts enumerated in AMLCs application with the RTC; and that the AMLC be directed to refrain from using, disclosing or publishing in any proceeding or venue any information or document obtained in violation of 40 the 11 May 2006 RTC Order. On 25 July 2006, or one day after Alvarez filed his motion, the 41 Manila RTC issued an Order wherein it clarified that "the Ex Parte Order of this Court dated January 12, 2006 can not be implemented against the deposits or accounts of any of the persons enumerated in the AMLC Application until the appeal of movant Alvarez is finally resolved, otherwise, the appeal would be rendered moot and academic or even nugatory."42 In addition, the AMLC was ordered "not to disclose or publish any information or document found or obtained in [v]iolation of the May 11, 2006 Order of this Court."43 The Manila RTC reasoned that the other persons mentioned in AMLCs application were not served with the courts 12 January 2006 Order. This 25 July 2006 Manila RTC Order is the first of the four rulings being assailed through this petition. In response, the Republic filed an Urgent Omnibus Motion for Reconsideration44 dated 27 July 2006, urging that it be allowed to immediately enforce the bank inquiry order against Alvarez and that Alvarezs notice of appeal be expunged from the records since appeal from an order of inquiry is disallowed under the Anti money Laundering Act (AMLA). Meanwhile, respondent Lilia Cheng filed with the Court of Appeals a Petition for Certiorari, Prohibition and Mandamus with Application for TRO and/or Writ of Preliminary Injunction45 dated 10 July 2006, directed against the Republic of the Philippines through the AMLC, Manila RTC Judge Eugenio, Jr. and Makati RTC Judge Marella, Jr.. She identified herself as the wife of Cheng Yong46 with whom she jointly owns a conjugal bank account with Citibank that is covered by the Makati RTC bank inquiry order, and two conjugal bank accounts with Metrobank that are covered by the Manila RTC bank inquiry order. Lilia Cheng imputed grave abuse of discretion on the part of the Makati and Manila RTCs in granting AMLCs ex parte applications for a bank inquiry order, arguing among others that the ex parte applications violated her constitutional right to due process, that the bank inquiry order under the AMLA can only be

granted in connection with violations of the AMLA and that the AMLA can not apply to bank accounts opened and transactions entered into prior to the effectivity of the AMLA or 47 to bank accounts located outside the Philippines. On 1 August 2006, the Court of Appeals, acting on Lilia 48 Chengs petition, issued a Temporary Restraining Order enjoining the Manila and Makati trial courts from implementing, enforcing or executing the respective bank inquiry orders previously issued, and the AMLC from enforcing and implementing such orders. On even date, the 49 Manila RTC issued an Order resolving to hold in abeyance the resolution of the urgent omnibus motion for reconsideration then pending before it until the resolution of Lilia Chengs petition for certiorari with the Court of Appeals. The Court of Appeals Resolution directing the issuance of the temporary restraining order is the second of the four rulings assailed in the present petition. The third assailed ruling was issued on 15 August 2006 by the Manila RTC, acting on the Urgent Motion for Clarification51 dated 14 August 2006 filed by Alvarez. It appears that the 1 August 2006 Manila RTC Order had amended its previous 25 July 2006 Order by deleting the last paragraph which stated that the AMLC "should not disclose or publish any information or document found or obtained in violation of the May 11, 2006 Order of this Court."52 In this new motion, Alvarez argued that the deletion of that paragraph would allow the AMLC to implement the bank inquiry orders and publish whatever information it might obtain thereupon even before the final orders of the Manila RTC could become final and executory.53 In the 15 August 2006 Order, the Manila RTC reiterated that the bank inquiry order it had issued could not be implemented or enforced by the AMLC or any of its representatives until the appeal therefrom was finally resolved and that any enforcement thereof would be unauthorized.54 The present Consolidated Petition55 for certiorari and prohibition under Rule 65 was filed on 2 October 2006, assailing the two Orders of the Manila RTC dated 25 July and 15 August 2006 and the Temporary Restraining Order dated 1 August 2006 of the Court of Appeals. Through an Urgent Manifestation and Motion56 dated 9 October 2006, petitioner informed the Court that on 22 September 2006, the Court of Appeals hearing Lilia Chengs petition had granted a writ of preliminary injunction in her favor.57 Thereafter, petitioner sought as well the nullification of the 22 September 2006 Resolution of the Court of Appeals, thereby constituting the fourth ruling assailed in the instant petition.58 The Court had initially granted a Temporary Restraining Order59 dated 6 October 2006 and later on a Supplemental Temporary Restraining Order60 dated 13 October 2006 in petitioners favor, enjoining the implementation of the assailed
50

Alvarez filed on 10 May 2006 an Urgent Motion31 expressing his apprehension that the AMLC would immediately enforce the omnibus order and would thereby render the motion for reconsideration he intended to file as moot and academic; thus he sought that the Republic be refrained from enforcing the omnibus order in the meantime. Acting on this motion, the Manila RTC, on 11 May 2006, issued an Order32 requiring the OSG to file a comment/opposition and reminding the parties that judgments and orders become final and executory upon the expiration of fifteen (15) days from receipt thereof, as it is the period within which a motion for reconsideration could be filed. Alvarez filed his Motion for Reconsideration33 of the omnibus order on 15 May 2006, but the motion was denied by the Manila RTC in an Order34 dated 5 July 2006. On 11 July 2006, Alvarez filed an Urgent Motion and Manifestation35 wherein he manifested having received reliable information that the AMLC was about to implement the Manila RTC bank inquiry order even though he was intending to appeal from it. On the premise that only a final and executory judgment or order could be executed or implemented, Alvarez sought that the AMLC be immediately ordered to refrain from enforcing the Manila RTC bank inquiry order. On 12 July 2006, the Manila RTC, acting on Alvarezs latest motion, issued an Order36 directing the AMLC "to refrain from enforcing the order dated January 12, 2006 until the expiration of the period to appeal, without any appeal having

rulings of the Manila RTC and the Court of Appeals. However, 61 on respondents motion, the Court, through a Resolution dated 11 December 2006, suspended the implementation of the restraining orders it had earlier issued. Oral arguments were held on 17 January 2007. The Court consolidated the issues for argument as follows: 1. Did the RTC-Manila, in issuing the Orders dated 25 July 2006 and 15 August 2006 which deferred the implementation of its Order dated 12 January 2006, and the Court of Appeals, in issuing its Resolution dated 1 August 2006, which ordered the status quo in relation to the 1 July 2005 Order of the RTC-Makati and the 12 January 2006 Order of the RTC-Manila, both of which authorized the examination of bank accounts under Section 11 of Rep. Act No. 9160 (AMLA), commit grave abuse of discretion? (a) Is an application for an order authorizing inquiry into or examination of bank accounts or investments under Section 11 of the AMLA exparte in nature or one which requires notice and hearing? (b) What legal procedures and standards should be observed in the conduct of the proceedings for the issuance of said order? (c) Is such order susceptible to legal challenges and judicial review? 2. Is it proper for this Court at this time and in this case to inquire into and pass upon the validity of the 1 July 2005 Order of the RTC-Makati and the 12 January 2006 Order of the RTC-Manila, considering the pendency of CA G.R. SP No. 95198 (Lilia Cheng v. Republic) wherein the validity of both orders was challenged?62 After the oral arguments, the parties were directed to file their respective memoranda, which they did,63 and the petition was thereafter deemed submitted for resolution. II. Petitioners general advocacy is that the bank inquiry orders issued by the Manila and Makati RTCs are valid and

immediately enforceable whereas the assailed rulings, which effectively stayed the enforcement of the Manila and Makati RTCs bank inquiry orders, are sullied with grave abuse of discretion. These conclusions flow from the posture that a bank inquiry order, issued upon a finding of probable cause, may be issued ex parte and, once issued, is immediately executory. Petitioner further argues that the information obtained following the bank inquiry is necessarily beneficial, if not indispensable, to the AMLC in discharging its awesome responsibility regarding the effective implementation of the AMLA and that any restraint in the disclosure of such information to appropriate agencies or other judicial fora would render meaningless the relief supplied by the bank inquiry order. Petitioner raises particular arguments questioning Lilia Chengs right to seek injunctive relief before the Court of Appeals, noting that not one of the bank inquiry orders is directed against her. Her "cryptic assertion" that she is the wife of Cheng Yong cannot, according to petitioner, "metamorphose into the requisite legal standing to seek redress for an imagined injury or to maintain an action in behalf of another." In the same breath, petitioner argues that Alvarez cannot assert any violation of the right to financial privacy in behalf of other persons whose bank accounts are being inquired into, particularly those other persons named in the Makati RTC bank inquiry order who did not take any step to oppose such orders before the courts. Ostensibly, the proximate question before the Court is whether a bank inquiry order issued in accordance with Section 10 of the AMLA may be stayed by injunction. Yet in arguing that it does, petitioner relies on what it posits as the final and immediately executory character of the bank inquiry orders issued by the Manila and Makati RTCs. Implicit in that position is the notion that the inquiry orders are valid, and such notion is susceptible to review and validation based on what appears on the face of the orders and the applications which triggered their issuance, as well as the provisions of the AMLA governing the issuance of such orders. Indeed, to test the viability of petitioners argument, the Court will have to be satisfied that the subject inquiry orders are valid in the first place. However, even from a cursory examination of the applications for inquiry order and the orders themselves, it is evident that the orders are not in accordance with law. III. A brief overview of the AMLA is called for. Money laundering has been generally defined by the International Criminal Police Organization (Interpol) `as "any act or attempted act to conceal or disguise the identity of illegally obtained proceeds so that they appear to have

originated from legitimate sources." Even before the passage of the AMLA, the problem was addressed by the Philippine government through the issuance of various circulars by the Bangko Sentral ng Pilipinas. Yet ultimately, legislative proscription was necessary, especially with the inclusion of the Philippines in the Financial Action Task Forces list of non-cooperative countries and territories in the fight against money laundering.65 The original AMLA, Republic Act (R.A.) No. 9160, was passed in 2001. It was amended by R.A. No. 9194 in 2003. Section 4 of the AMLA states that "[m]oney laundering is a crime whereby the proceeds of an unlawful activity as [defined in the law] are transacted, thereby making them 66 appear to have originated from legitimate sources." The section further provides the three modes through which the crime of money laundering is committed. Section 7 creates the AMLC and defines its powers, which generally relate to the enforcement of the AMLA provisions and the initiation of legal actions authorized in the AMLA such as civil forefeiture proceedings and complaints for the prosecution of money 67 laundering offenses. In addition to providing for the definition and penalties for the crime of money laundering, the AMLA also authorizes certain provisional remedies that would aid the AMLC in the enforcement of the AMLA. These are the "freeze order" authorized under Section 10, and the "bank inquiry order" authorized under Section 11. Respondents posit that a bank inquiry order under Section 11 may be obtained only upon the pre-existence of a money laundering offense case already filed before the courts.68 The conclusion is based on the phrase "upon order of any competent court in cases of violation of this Act," the word "cases" generally understood as referring to actual cases pending with the courts. We are unconvinced by this proposition, and agree instead with the then Solicitor General who conceded that the use of the phrase "in cases of" was unfortunate, yet submitted that it should be interpreted to mean "in the event there are violations" of the AMLA, and not that there are already cases 69 pending in court concerning such violations. If the contrary position is adopted, then the bank inquiry order would be limited in purpose as a tool in aid of litigation of live cases, and wholly inutile as a means for the government to ascertain whether there is sufficient evidence to sustain an intended prosecution of the account holder for violation of the AMLA. Should that be the situation, in all likelihood the AMLC would be virtually deprived of its character as a discovery tool, and thus would become less circumspect in filing complaints against suspect account holders. After all, under such set-up the preferred strategy would be to allow or even encourage the indiscriminate filing of complaints under the AMLA with

64

the hope or expectation that the evidence of money laundering would somehow surface during the trial. Since the AMLC could not make use of the bank inquiry order to determine whether there is evidentiary basis to prosecute the suspected malefactors, not filing any case at all would not be an alternative. Such unwholesome set-up should not come to pass. Thus Section 11 cannot be interpreted in a way that would emasculate the remedy it has established and encourage the unfounded initiation of complaints for money laundering. Still, even if the bank inquiry order may be availed of without need of a pre-existing case under the AMLA, it does not follow that such order may be availed of ex parte. There are several reasons why the AMLA does not generally sanction ex parte applications and issuances of the bank inquiry order. IV. It is evident that Section 11 does not specifically authorize, as a general rule, the issuance ex parte of the bank inquiry order. We quote the provision in full: SEC. 11. Authority to Inquire into Bank Deposits. Notwithstanding the provisions of Republic Act No. 1405, as amended, Republic Act No. 6426, as amended, Republic Act No. 8791, and other laws, the AMLC may inquire into or examine any particular deposit or investment with any banking institution or non bank financial institution upon order of any competent court in cases of violation of this Act, when it has been established that there is probable cause that the deposits or investments are related to an unlawful activity as defined in Section 3(i) hereof or a money laundering offense under Section 4 hereof, except that no court order shall be required in cases involving unlawful activities defined in Sections 3(i)1, (2) and (12). To ensure compliance with this Act, the Bangko Sentral ng Pilipinas (BSP) may inquire into or examine any deposit of investment with any banking institution or non bank financial institution when the examination is made in the course of a periodic or special examination, in accordance with the rules of examination of the BSP.70 (Emphasis supplied) Of course, Section 11 also allows the AMLC to inquire into bank accounts without having to obtain a judicial order in cases where there is probable cause that the deposits or investments are related to kidnapping for ransom,71 certain

violations of the Comprehensive Dangerous Drugs Act of 72 2002, hijacking and other violations under R.A. No. 6235, destructive arson and murder. Since such special circumstances do not apply in this case, there is no need for us to pass comment on this proviso. Suffice it to say, the proviso contemplates a situation distinct from that which presently confronts us, and for purposes of the succeeding discussion, our reference to Section 11 of the AMLA excludes said proviso. In the instances where a court order is required for the issuance of the bank inquiry order, nothing in Section 11 specifically authorizes that such court order may be issued ex parte. It might be argued that this silence does not preclude the ex parte issuance of the bank inquiry order since the same is not prohibited under Section 11. Yet this argument falls when the immediately preceding provision, Section 10, is examined. SEC. 10. Freezing of Monetary Instrument or Property. The Court of Appeals, upon application ex parte by the AMLC and after determination that probable cause exists that any monetary instrument or property is in any way related to an unlawful activity as defined in Section 3(i) hereof, may issue a freeze order which shall be effective immediately. The freeze order shall be for a period of twenty (20) days unless extended by the court.73 Although oriented towards different purposes, the freeze order under Section 10 and the bank inquiry order under Section 11 are similar in that they are extraordinary provisional reliefs which the AMLC may avail of to effectively combat and prosecute money laundering offenses. Crucially, Section 10 uses specific language to authorize an ex parte application for the provisional relief therein, a circumstance absent in Section 11. If indeed the legislature had intended to authorize ex parte proceedings for the issuance of the bank inquiry order, then it could have easily expressed such intent in the law, as it did with the freeze order under Section 10. Even more tellingly, the current language of Sections 10 and 11 of the AMLA was crafted at the same time, through the passage of R.A. No. 9194. Prior to the amendatory law, it was the AMLC, not the Court of Appeals, which had authority to issue a freeze order, whereas a bank inquiry order always then required, without exception, an order from a competent court.74 It was through the same enactment that ex parte proceedings were introduced for the first time into the AMLA, in the case of the freeze order which now can only be issued by the Court of Appeals. It certainly would have been convenient, through the same amendatory law, to allow a similar ex parte procedure in the case of a bank inquiry order had Congress been so minded. Yet nothing in the provision

itself, or even the available legislative record, explicitly points to an ex parte judicial procedure in the application for a bank inquiry order, unlike in the case of the freeze order. That the AMLA does not contemplate ex parte proceedings in applications for bank inquiry orders is confirmed by the present implementing rules and regulations of the AMLA, promulgated upon the passage of R.A. No. 9194. With respect to freeze orders under Section 10, the implementing rules do expressly provide that the applications for freeze orders be filed ex parte,75 but no similar clearance is granted 76 in the case of inquiry orders under Section 11. These implementing rules were promulgated by the Bangko Sentral ng Pilipinas, the Insurance Commission and the Securities 77 and Exchange Commission, and if it was the true belief of these institutions that inquiry orders could be issued ex parte similar to freeze orders, language to that effect would have been incorporated in the said Rules. This is stressed not because the implementing rules could authorize ex parte applications for inquiry orders despite the absence of statutory basis, but rather because the framers of the law had no intention to allow such ex parte applications. Even the Rules of Procedure adopted by this Court in A.M. No. 05-11-04-SC78 to enforce the provisions of the AMLA specifically authorize ex parte applications with respect to freeze orders under Section 1079 but make no similar authorization with respect to bank inquiry orders under Section 11. The Court could divine the sense in allowing ex parte proceedings under Section 10 and in proscribing the same under Section 11. A freeze order under Section 10 on the one hand is aimed at preserving monetary instruments or property in any way deemed related to unlawful activities as defined in Section 3(i) of the AMLA. The owner of such monetary instruments or property would thus be inhibited from utilizing the same for the duration of the freeze order. To make such freeze order anteceded by a judicial proceeding with notice to the account holder would allow for or lead to the dissipation of such funds even before the order could be issued. On the other hand, a bank inquiry order under Section 11 does not necessitate any form of physical seizure of property of the account holder. What the bank inquiry order authorizes is the examination of the particular deposits or investments in banking institutions or non-bank financial institutions. The monetary instruments or property deposited with such banks or financial institutions are not seized in a physical sense, but are examined on particular details such as the account holders record of deposits and transactions. Unlike the assets subject of the freeze order, the records to be inspected under a bank inquiry order cannot be physically seized or hidden by the account holder. Said records are in the possession of the bank and therefore cannot be destroyed at

the instance of the account holder alone as that would require the extraordinary cooperation and devotion of the bank. Interestingly, petitioners memorandum does not attempt to demonstrate before the Court that the bank inquiry order under Section 11 may be issued ex parte, although the petition itself did devote some space for that argument. The petition argues that the bank inquiry order is "a special and peculiar remedy, drastic in its name, and made necessary because of a public necessity [t]hus, by its very nature, the application for an order or inquiry must necessarily, be ex parte." This argument is insufficient justification in light of the clear disinclination of Congress to allow the issuance ex parte of bank inquiry orders under Section 11, in contrast to the legislatures clear inclination to allow the ex parte grant of freeze orders under Section 10. Without doubt, a requirement that the application for a bank inquiry order be done with notice to the account holder will alert the latter that there is a plan to inspect his bank account on the belief that the funds therein are involved in an unlawful activity or money laundering offense.80 Still, the account holder so alerted will in fact be unable to do anything to conceal or cleanse his bank account records of suspicious or anomalous transactions, at least not without the wholehearted cooperation of the bank, which inherently has no vested interest to aid the account holder in such manner. V. The necessary implication of this finding that Section 11 of the AMLA does not generally authorize the issuance ex parte of the bank inquiry order would be that such orders cannot be issued unless notice is given to the owners of the account, allowing them the opportunity to contest the issuance of the order. Without such a consequence, the legislated distinction between ex parte proceedings under Section 10 and those which are not ex parte under Section 11 would be lost and rendered useless. There certainly is fertile ground to contest the issuance of an ex parte order. Section 11 itself requires that it be established that "there is probable cause that the deposits or investments are related to unlawful activities," and it obviously is the court which stands as arbiter whether there is indeed such probable cause. The process of inquiring into the existence of probable cause would involve the function of determination reposed on the trial court. Determination clearly implies a function of adjudication on the part of the trial court, and not a mechanical application of a standard pre-determination by some other body. The word "determination" implies deliberation and is, in normal legal contemplation, equivalent to "the decision of a court of justice."81

The court receiving the application for inquiry order cannot simply take the AMLCs word that probable cause exists that the deposits or investments are related to an unlawful activity. It will have to exercise its own determinative function in order to be convinced of such fact. The account holder would be certainly capable of contesting such probable cause if given the opportunity to be apprised of the pending application to inquire into his account; hence a notice requirement would not be an empty spectacle. It may be so that the process of obtaining the inquiry order may become more cumbersome or prolonged because of the notice requirement, yet we fail to see any unreasonable burden cast by such circumstance. After all, as earlier stated, requiring notice to the account holder should not, in any way, compromise the integrity of the bank records subject of the inquiry which remain in the possession and control of the bank. Petitioner argues that a bank inquiry order necessitates a finding of probable cause, a characteristic similar to a search warrant which is applied to and heard ex parte. We have examined the supposed analogy between a search warrant and a bank inquiry order yet we remain to be unconvinced by petitioner. The Constitution and the Rules of Court prescribe particular requirements attaching to search warrants that are not imposed by the AMLA with respect to bank inquiry orders. A constitutional warrant requires that the judge personally examine under oath or affirmation the complainant and the witnesses he may produce,82 such examination being in the form of searching questions and answers.83 Those are impositions which the legislative did not specifically prescribe as to the bank inquiry order under the AMLA, and we cannot find sufficient legal basis to apply them to Section 11 of the AMLA. Simply put, a bank inquiry order is not a search warrant or warrant of arrest as it contemplates a direct object but not the seizure of persons or property. Even as the Constitution and the Rules of Court impose a high procedural standard for the determination of probable cause for the issuance of search warrants which Congress chose not to prescribe for the bank inquiry order under the AMLA, Congress nonetheless disallowed ex parte applications for the inquiry order. We can discern that in exchange for these procedural standards normally applied to search warrants, Congress chose instead to legislate a right to notice and a right to be heard characteristics of judicial proceedings which are not ex parte. Absent any demonstrable constitutional infirmity, there is no reason for us to dispute such legislative policy choices. VI.

The Courts construction of Section 11 of the AMLA is undoubtedly influenced by right to privacy considerations. If sustained, petitioners argument that a bank account may be inspected by the government following an ex parte proceeding about which the depositor would know nothing would have significant implications on the right to privacy, a right innately cherished by all notwithstanding the legally recognized exceptions thereto. The notion that the government could be so empowered is cause for concern of any individual who values the right to privacy which, after all, embodies even the right to be "let alone," the most comprehensive of rights and the right most 84 valued by civilized people. One might assume that the constitutional dimension of the right to privacy, as applied to bank deposits, warrants our present inquiry. We decline to do so. Admittedly, that question has proved controversial in American jurisprudence. Notably, 85 the United States Supreme Court in U.S. v. Miller held that there was no legitimate expectation of privacy as to the bank records of a depositor.86 Moreover, the text of our Constitution has not bothered with the triviality of allocating specific rights peculiar to bank deposits. However, sufficient for our purposes, we can assert there is a right to privacy governing bank accounts in the Philippines, and that such right finds application to the case at bar. The source of such right is statutory, expressed as it is in R.A. No. 1405 otherwise known as the Bank Secrecy Act of 1955. The right to privacy is enshrined in Section 2 of that law, to wit: SECTION 2. All deposits of whatever nature with banks 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 supplied) Because of the Bank Secrecy Act, the confidentiality of bank deposits remains a basic state policy in the Philippines.87 Subsequent laws, including the AMLA, may have added exceptions to the Bank Secrecy Act, yet the secrecy of bank deposits still lies as the general rule. It falls within the zones of privacy recognized by our laws.88 The framers of the 1987

Constitution likewise recognized that bank accounts are not 89 covered by either the right to information under Section 7, 90 Article III or under the requirement of full public disclosure under Section 28, Article II.91 Unless the Bank Secrecy Act is repealed or amended, the legal order is obliged to conserve the absolutely confidential nature of Philippine bank deposits. Any exception to the rule of absolute confidentiality must be specifically legislated. Section 2 of the Bank Secrecy Act itself prescribes exceptions whereby these bank accounts may be examined by "any person, government official, bureau or office"; namely when: (1) upon written permission of the depositor; (2) in cases of impeachment; (3) the examination of bank accounts is upon order of a competent court in cases of bribery or dereliction of duty of public officials; and (4) the money deposited or invested is the subject matter of the litigation. Section 8 of R.A. Act No. 3019, the Anti-Graft and Corrupt Practices Act, has been recognized by this Court as constituting an additional exception to the rule of absolute confidentiality,92 and there have been other similar recognitions as well.93 The AMLA also provides exceptions to the Bank Secrecy Act. Under Section 11, the AMLC may inquire into a bank account upon order of any competent court in cases of violation of the AMLA, it having been established that there is probable cause that the deposits or investments are related to unlawful activities as defined in Section 3(i) of the law, or a money laundering offense under Section 4 thereof. Further, in instances where there is probable cause that the deposits or investments are related to kidnapping for ransom,94 certain violations of the Comprehensive Dangerous Drugs Act of 2002,95 hijacking and other violations under R.A. No. 6235, destructive arson and murder, then there is no need for the AMLC to obtain a court order before it could inquire into such accounts. It cannot be successfully argued the proceedings relating to the bank inquiry order under Section 11 of the AMLA is a "litigation" encompassed in one of the exceptions to the Bank Secrecy Act which is when "the money deposited or invested is the subject matter of the litigation." The orientation of the bank inquiry order is simply to serve as a provisional relief or remedy. As earlier stated, the application for such does not entail a full-blown trial. Nevertheless, just because the AMLA establishes additional exceptions to the Bank Secrecy Act it does not mean that the later law has dispensed with the general principle established in the older law that "[a]ll deposits of whatever nature with banks or banking institutions in the Philippines x x x are hereby considered as of an absolutely confidential nature."96

Indeed, by force of statute, all bank deposits are absolutely confidential, and that nature is unaltered even by the legislated exceptions referred to above. There is disfavor towards construing these exceptions in such a manner that would authorize unlimited discretion on the part of the government or of any party seeking to enforce those exceptions and inquire into bank deposits. If there are doubts in upholding the absolutely confidential nature of bank deposits against affirming the authority to inquire into such accounts, then such doubts must be resolved in favor of the former. Such a stance would persist unless Congress passes a law reversing the general state policy of preserving the absolutely confidential nature of Philippine bank accounts. The presence of this statutory right to privacy addresses at least one of the arguments raised by petitioner, that Lilia Cheng had no personality to assail the inquiry orders before the Court of Appeals because she was not the subject of said orders. AMLC Resolution No. 75, which served as the basis in the successful application for the Makati inquiry order, expressly adverts to Citibank Account No. 88576248 "owned by Cheng Yong and/or Lilia G. Cheng with Citibank N.A.,"97 whereas Lilia Chengs petition before the Court of Appeals is accompanied by a certification from Metrobank that Account Nos. 300852436-0 and 700149801-7, both of which are among the subjects of the Manila inquiry order, are accounts in the name of "Yong Cheng or Lilia Cheng."98 Petitioner does not specifically deny that Lilia Cheng holds rights of ownership over the three said accounts, laying focus instead on the fact that she was not named as a subject of either the Makati or Manila RTC inquiry orders. We are reasonably convinced that Lilia Cheng has sufficiently demonstrated her joint ownership of the three accounts, and such conclusion leads us to acknowledge that she has the standing to assail via certiorari the inquiry orders authorizing the examination of her bank accounts as the orders interfere with her statutory right to maintain the secrecy of said accounts. While petitioner would premise that the inquiry into Lilia Chengs accounts finds root in Section 11 of the AMLA, it cannot be denied that the authority to inquire under Section 11 is only exceptional in character, contrary as it is to the general rule preserving the secrecy of bank deposits. Even though she may not have been the subject of the inquiry orders, her bank accounts nevertheless were, and she thus has the standing to vindicate the right to secrecy that attaches to said accounts and their owners. This statutory right to privacy will not prevent the courts from authorizing the inquiry anyway upon the fulfillment of the requirements set forth under Section 11 of the AMLA or Section 2 of the Bank Secrecy Act; at the same time, the owner of the accounts have the right to challenge whether the requirements were indeed complied with. VII.

There is a final point of concern which needs to be addressed. Lilia Cheng argues that the AMLA, being a substantive penal statute, has no retroactive effect and the bank inquiry order could not apply to deposits or investments opened prior to the effectivity of Rep. Act No. 9164, or on 17 October 2001. Thus, she concludes, her subject bank accounts, opened between 1989 to 1990, could not be the subject of the bank inquiry order lest there be a violation of the constitutional prohibition against ex post facto laws. No ex post facto law may be enacted,99 and no law may be construed in such fashion as to permit a criminal prosecution offensive to the ex post facto clause. As applied to the AMLA, it is plain that no person may be prosecuted under the penal provisions of the AMLA for acts committed prior to the enactment of the law on 17 October 2001. As much was understood by the lawmakers since they deliberated upon the AMLA, and indeed there is no serious dispute on that point. Does the proscription against ex post facto laws apply to the interpretation of Section 11, a provision which does not provide for a penal sanction but which merely authorizes the inspection of suspect accounts and deposits? The answer is in the affirmative. In this jurisdiction, we have defined an ex post facto law as one which either: (1) makes criminal an act done before the passage of the law and which was innocent when done, and punishes such an act; (2) aggravates a crime, or makes it greater than it was, when committed; (3) changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed; (4) alters the legal rules of evidence, and authorizes conviction upon less or different testimony than the law required at the time of the commission of the offense; (5) assuming to regulate civil rights and remedies only, in effect imposes penalty or deprivation of a right for something which when done was lawful; and (6) deprives a person accused of a crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a

proclamation supplied)100

of

amnesty.

(Emphasis

Prior to the enactment of the AMLA, the fact that bank accounts or deposits were involved in activities later on enumerated in Section 3 of the law did not, by itself, remove such accounts from the shelter of absolute confidentiality. Prior to the AMLA, in order that bank accounts could be examined, there was need to secure either the written permission of the depositor or a court order authorizing such examination, assuming that they were involved in cases of bribery or dereliction of duty of public officials, or in a case where the money deposited or invested was itself the subject matter of the litigation. The passage of the AMLA stripped another layer off the rule on absolute confidentiality that provided a measure of lawful protection to the account holder. For that reason, the application of the bank inquiry order as a means of inquiring into records of transactions entered into prior to the passage of the AMLA would be constitutionally infirm, offensive as it is to the ex post facto clause. Still, we must note that the position submitted by Lilia Cheng is much broader than what we are willing to affirm. She argues that the proscription against ex post facto laws goes as far as to prohibit any inquiry into deposits or investments included in bank accounts opened prior to the effectivity of the AMLA even if the suspect transactions were entered into when the law had already taken effect. The Court recognizes that if this argument were to be affirmed, it would create a horrible loophole in the AMLA that would in turn supply the means to fearlessly engage in money laundering in the Philippines; all that the criminal has to do is to make sure that the money laundering activity is facilitated through a bank account opened prior to 2001. Lilia Cheng admits that "actual money launderers could utilize the ex post facto provision of the Constitution as a shield" but that the remedy lay with Congress to amend the law. We can hardly presume that Congress intended to enact a self-defeating law in the first place, and the courts are inhibited from such a construction by the cardinal rule that "a law should be interpreted with a view to upholding rather than destroying it."101 Besides, nowhere in the legislative record cited by Lilia Cheng does it appear that there was an unequivocal intent to exempt from the bank inquiry order all bank accounts opened prior to the passage of the AMLA. There is a cited exchange between Representatives Ronaldo Zamora and Jaime Lopez where the latter confirmed to the former that "deposits are supposed to be exempted from scrutiny or monitoring if they are already in place as of the time the law is enacted."102 That statement does indicate that transactions already in place when the AMLA was passed are indeed exempt from scrutiny through a bank inquiry order, but it cannot yield any interpretation that records of transactions undertaken after the enactment of the AMLA are similarly exempt. Due to the

absence of cited authority from the legislative record that unqualifiedly supports respondent Lilia Chengs thesis, there is no cause for us to sustain her interpretation of the AMLA, fatal as it is to the anima of that law. IX. We are well aware that Lilia Chengs petition presently pending before the Court of Appeals likewise assails the validity of the subject bank inquiry orders and precisely seeks the annulment of said orders. Our current declarations may indeed have the effect of preempting that0 petition. Still, in order for this Court to rule on the petition at bar which insists on the enforceability of the said bank inquiry orders, it is necessary for us to consider and rule on the same question which after all is a pure question of law. WHEREFORE, the PETITION pronouncement as to costs. SO ORDERED. G.R. No. L-69809 October 16, 1986 EDGARDO A. GAANAN, petitioner, vs. INTERMEDIATE APPELLATE COURT and PEOPLE OF THE PHILIPPINES, respondents. is DISMISSED. No

assault which they filed with the Office of the City Fiscal of Cebu against Leonardo Laconico. After they had decided on the proposed conditions, complainant made a telephone call to Laconico (tsn, August 26, 1981, pp. 35). That same morning, Laconico telephoned appellant, who is a lawyer, to come to his office and advise him on the settlement of the direct assault case because his regular lawyer, Atty. Leon Gonzaga, went on a business trip. According to the request, appellant went to the office of Laconico where he was briefed about the problem. (Exhibit 'D', tsn, April 22, 1982, pp. 4-5). When complainant called up, Laconico requested appellant to secretly listen to the telephone conversation through a telephone extension so as to hear personally the proposed conditions for the settlement. Appellant heard complainant enumerate the following conditions for withdrawal of the complaint for direct assault. (a) the P5,000.00 was no longer acceptable, and that the figure had been increased to P8,000.00. A breakdown of the P8,000.00 had been made together with other demands, to wit: (a) P5,000.00 no longer for the teacher Manuel Montebon, but for Atty. Pintor himself in persuading his client to withdraw the case for Direct Assault against Atty. Laconico before the Cebu City Fiscal's Office; (b) Public apology to be made by Atty. Laconico before the students of Don Bosco Technical High School; (c) Pl,000.00 to be given to the Don Bosco Faculty club; (d) transfer of son of Atty. Laconico to another school or another section of Don Bosco Technical High School;

GUTIERREZ, JR., J.: This petition for certiorari asks for an interpretation of Republic Act (RA) No. 4200, otherwise known as the AntiWiretapping Act, on the issue of whether or not an extension telephone is among the prohibited devices in Section 1 of the Act, such that its use to overhear a private conversation would constitute unlawful interception of communications between the two parties using a telephone line. The facts presented by the People and narrated in the respondent court's decision are not disputed by the petitioner. In the morning of October 22, 1975, complainant Atty. Tito Pintor and his client Manuel Montebon were in the living room of complainant's residence discussing the terms for the withdrawal of the complaint for direct

(e) Affidavit of desistance by Atty. Laconico on the Maltreatment case earlier filed against Manuel Montebon at the Cebu City Fiscal's Office, whereas Montebon's affidavit of desistance on the Direct Assault Case against Atty. Laconico to be filed later; (f) Allow Manuel Montebon to continue teaching at the Don Bosco Technical School; (g) Not to divulge the truth about the settlement of the Direct Assault Case to the mass media; (h) P2,000.00 attorney s fees for Atty. Pintor. (tsn, August 26, 1981, pp. 4748). Twenty minutes later, complainant called up again to ask Laconico if he was agreeable to the conditions. Laconico answered 'Yes'. Complainant then told Laconico to wait for instructions on where to deliver the money. (tsn, March 10, 1983, pp. 2-12). Complainant called up again and instructed Laconico to give the money to his wife at the office of the then Department of Public Highways. Laconico who earlier alerted his friend Colonel Zulueta of the Criminal Investigation Service of the Philippine Constabulary, insisted that complainant himself should receive the money. (tsn, March 10, 1982, pp. 26-33). When he received the money at the Igloo Restaurant, complainant was arrested by agents of the Philippine Constabulary. Appellant executed on the following day an affidavit stating that he heard complainant demand P8,000.00 for the withdrawal of the case for direct assault. Laconico attached the affidavit of appellant to the complainant for robbery/extortion which he filed against complainant. Since appellant listened to the

telephone conversation without complainant's consent, complainant charged appellant and Laconico with violation of the Anti-Wiretapping Act. After trial on the merits, the lower court, in a decision dated November 22, 1982, found both Gaanan and Laconico guilty of violating Section 1 of Republic Act No. 4200. The two were each sentenced to one (1) year imprisonment with costs. Not satisfied with the decision, the petitioner appealed to the appellate court. On August 16, 1984, the Intermediate Appellate Court affirmed the decision of the trial court, holding that the communication between the complainant and accused Laconico was private in nature and, therefore, covered by Rep. Act No. 4200; that the petitioner overheard such communication without the knowledge and consent of the complainant; and that the extension telephone which was used by the petitioner to overhear the telephone conversation between complainant and Laconico is covered in the term "device' as provided in Rep. Act No. 4200. In this petition for certiorari, the petitioner assails the decision of the appellate court and raises the following issues; (a) whether or not the telephone conversation between the complainant and accused Laconico was private in nature; (b) whether or not an extension telephone is covered by the term "device or arrangement" under Rep. Act No. 4200; (c) whether or not the petitioner had authority to listen or overhear said telephone conversation and (d) whether or not Rep. Act No. 4200 is ambiguous and, therefore, should be construed in favor of the petitioner. Section 1 of Rep. Act No. 4200 provides: Section 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or taperecorder, or however otherwise described: It shall be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceeding

sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, that the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in Section 3 hereof, shall not be covered by this prohibition. We rule for the petitioner. We are confronted in this case with the interpretation of a penal statute and not a rule of evidence. The issue is not the admissibility of evidence secured over an extension line of a telephone by a third party. The issue is whether or not the person called over the telephone and his lawyer listening to the conversation on an extension line should both face prison sentences simply because the extension was used to enable them to both listen to an alleged attempt at extortion. There is no question that the telephone conversation between complainant Atty. Pintor and accused Atty. Laconico was "private" in the sense that the words uttered were made between one person and another as distinguished from words between a speaker and a public. It is also undisputed that only one of the parties gave the petitioner the authority to listen to and overhear the caller's message with the use of an extension telephone line. Obviously, complainant Pintor, a member of the Philippine bar, would not have discussed the alleged demand for an P8,000.00 consideration in order to have his client withdraw a direct assault charge against Atty. Laconico filed with the Cebu City Fiscal's Office if he knew that another lawyer was also listening. We have to consider, however, that affirmance of the criminal conviction would, in effect, mean that a caller by merely using a telephone line can force the listener to secrecy no matter how obscene, criminal, or annoying the call may be. It would be the word of the caller against the listener's. Because of technical problems caused by the sensitive nature of electronic equipment and the extra heavy loads which telephone cables are made to carry in certain areas, telephone users often encounter what are called "crossed lines". An unwary citizzen who happens to pick up his

telephone and who overhears the details of a crime might hesitate to inform police authorities if he knows that he could be accused under Rep. Act 4200 of using his own telephone to secretly overhear the private communications of the would be criminals. Surely the law was never intended for such mischievous results. The main issue in the resolution of this petition, however, revolves around the meaning of the phrase "any other device or arrangement." Is an extension of a telephone unit such a device or arrangement as would subject the user to imprisonment ranging from six months to six years with the accessory penalty of perpetual absolute disqualification for a public officer or deportation for an alien? Private secretaries with extension lines to their bosses' telephones are sometimes asked to use answering or recording devices to record business conversations between a boss and another businessman. Would transcribing a recorded message for the use of the boss be a proscribed offense? or for that matter, would a "party line" be a device or arrangement under the law? The petitioner contends that telephones or extension telephones are not included in the enumeration of "commonly known" listening or recording devices, nor do they belong to the same class of enumerated electronic devices contemplated by law. He maintains that in 1964, when Senate Bill No. 9 (later Rep. Act No. 4200) was being considered in the Senate, telephones and extension telephones were already widely used instruments, probably the most popularly known communication device. Whether or not listening over a telephone party line would be punishable was discussed on the floor of the Senate. Yet, when the bill was finalized into a statute, no mention was made of telephones in the enumeration of devices "commonly known as a dictaphone or dictagraph, detectaphone or walkie talkie or tape recorder or however otherwise described." The omission was not a mere oversight. Telephone party lines were intentionally deleted from the provisions of the Act. The respondent People argue that an extension telephone is embraced and covered by the term "device" within the context of the aforementioned law because it is not a part or portion of a complete set of a telephone apparatus. It is a separate device and distinct set of a movable apparatus consisting of a wire and a set of telephone receiver not forming part of a main telephone set which can be detached or removed and can be transferred away from one place to another and to be plugged or attached to a main telephone line to get the desired communication corning from the other party or end. The law refers to a "tap" of a wire or cable or the use of a "device or arrangement" for the purpose of secretly

overhearing, intercepting, or recording the communication. There must be either a physical interruption through a wiretap or the deliberate installation of a device or arrangement in order to overhear, intercept, or record the spoken words. An extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the other devices enumerated in Section 1 of RA No. 4200 as the use thereof cannot be considered as "tapping" the wire or cable of a telephone line. The telephone extension in this case was not installed for that purpose. It just happened to be there for ordinary office use. It is a rule in statutory construction that in order to determine the true intent of the legislature, the particular clauses and phrases of the statute should not be taken as detached and isolated expressions, but the whole and every part thereof must be considered in fixing the meaning of any of its parts. (see Commissioner of Customs v. Esso Estandard Eastern, Inc., 66 SCRA 113,120). In the case of Empire Insurance Com any v. Rufino (90 SCRA 437, 443-444), we ruled: Likewise, Article 1372 of the Civil Code stipulates that 'however general the terms of a contract may be, they shall not be understood to comprehend things that are distinct and cases that are different from those upon which the parties intended to agree.' Similarly, Article 1374 of the same Code provides that 'the various stipulations of a contract shall be interpreted together, attributing to the doubtful ones that sense which may result from all of them taken jointly. xxx xxx xxx Consequently, the phrase 'all liabilities or obligations of the decedent' used in paragraph 5(c) and 7(d) should be then restricted only to those listed in the Inventory and should not be construed as to comprehend all other obligations of the decedent. The rule that 'particularization followed by a general expression will ordinarily be restricted to the former' is based on the fact in human experience that usually the minds of parties are addressed specially to the particularization, and that the generalities, though broad enough to comprehend other fields if they stood

alone, are used in contemplation of that upon which the minds of the parties are centered. (Hoffman v. Eastern Wisconsin R., etc., Co., 134 Wis. 603, 607, 115 NW 383, cited in Francisco, Revised Rules of Court (Evidence), 1973 ed, pp. 180-181). Hence, the phrase "device or arrangement" in Section 1 of RA No. 4200, although not exclusive to that enumerated therein, should be construed to comprehend instruments of the same or similar nature, that is, instruments the use of which would be tantamount to tapping the main line of a telephone. It refers to instruments whose installation or presence cannot be presumed by the party or parties being overheard because, by their very nature, they are not of common usage and their purpose is precisely for tapping, intercepting or recording a telephone conversation. An extension telephone is an instrument which is very common especially now when the extended unit does not have to be connected by wire to the main telephone but can be moved from place ' to place within a radius of a kilometer or more. A person should safely presume that the party he is calling at the other end of the line probably has an extension telephone and he runs the risk of a third party listening as in the case of a party line or a telephone unit which shares its line with another. As was held in the case of Rathbun v. United States (355, U.S. 107, 2 L Ed 2d 137-138): Common experience tells us that a call to a particular telephone number may cause the bell to ring in more than one ordinarily used instrument. Each party to a telephone conversation takes the risk that the other party may have an extension telephone and may allow another to overhear the conversation. When such takes place there has been no violation of any privacy of which the parties may complain. Consequently, one element of 605, interception, has not occurred. In the same case, the Court further ruled that the conduct of the party would differ in no way if instead of repeating the message he held out his hand-set so that another could hear out of it and that there is no distinction between that sort of action and permitting an outsider to use an extension telephone for the same purpose. Furthermore, it is a general rule that penal statutes must be construed strictly in favor of the accused. Thus, in case of

doubt as in the case at bar, on whether or not an extension telephone is included in the phrase "device or arrangement", the penal statute must be construed as not including an extension telephone. In the case of People v. Purisima, 86 SCRA 542, 562, we explained the rationale behind the rule: American jurisprudence sets down the reason for this rule to be the tenderness of the law of the rights of individuals; the object is to establish a certain rule by conformity to which mankind would be safe, and the discretion of the court limited. (United States v. Harris, 177 US 305, 44 L Ed 780, 20 S Ct 609; Braffith v. Virgin Islands (CA3) 26 F2d 646; Caudill v. State, 224 Ind 531, 69 NE2d; Jennings v. Commonwealth, 109 VA 821,63 SE 1080, all cited in 73 Am Jur 2d 452). The purpose is not to enable a guilty person to escape punishment through a technicality but to provide a precise definition of forbidden acts." (State v. Zazzaro, 20 A 2d 737, quoted in Martin's Handbook on Statutory Construction, Rev. Ed. pp. 183-184). In the same case of Purisima, we also ruled that on the construction or interpretation of a legislative measure, the primary rule is to search for and determine the intent and spirit of the law. A perusal of the Senate Congressional Records will show that not only did our lawmakers not contemplate the inclusion of an extension telephone as a prohibited device or arrangement" but of greater importance, they were more concerned with penalizing the act of recording than the act of merely listening to a telephone conversation. xxx xxx xxx Senator Taada. Another possible objection to that is entrapment which is certainly objectionable. It is made possible by special amendment

which Your Honor may introduce. Senator Diokno.Your Honor, I would feel that entrapment would be less possible with the amendment than without it, because with the amendment the evidence of entrapment would only consist of government testimony as against the testimony of the defendant. With this amendment, they would have the right, and the government officials and the person in fact would have the right to tape record their conversation. Senator Taada. In case of entrapment, it would be the government. Senator Diokno. In the same way, under this provision, neither party could record and, therefore,

the court would be limited to saying: "Okay, who is more credible, the police officers or the defendant?" In these cases, as experienced lawyers, we know that the Court go with the peace offices. (Congressional Record, Vol. 111, No. 33, p. 628, March 12, 1964). xxx xxx xxx Senator Diokno. The point I have in mind is that under these conditions, with an agent outside listening in, he could falsify the testimony and there is no way of checking it. But if you allow him to record or make a recording in any form of what is happening, then the chances of falsifying the evidence is not very much. Senator Taada. Your Honor, this bill is not intended

to prevent the presentation of false testimony. If we could devise a way by which we could prevent the presentation of false testimony, it would be wonderful. But what this bill intends to prohibit is the use of tape record and other electronic devices to intercept private conversations which later on will be used in court. (Congressional Record, Vol. III, No. 33, March 12, 1964, p. 629). It can be readily seen that our lawmakers intended to discourage, through punishment, persons such as government authorities or representatives of organized groups from installing devices in order to gather evidence for use in court or to intimidate, blackmail or gain some unwarranted advantage over the telephone users. Consequently, the mere act of listening, in order to be punishable must strictly be with the use of the enumerated devices in RA No. 4200 or others of similar nature. We are of the view that an extension telephone is not among such devices or arrangements. WHEREFORE, the petition is GRANTED. The decision of the then Intermediate Appellate Court dated August 16, 1984 is ANNULLED and SET ASIDE. The petitioner is hereby ACQUITTED of the crime of violation of Rep. Act No. 4200, otherwise known as the Anti-Wiretapping Act. SO ORDERED.

G.R. No. 93833 September 28, 1995 SOCORRO D. RAMIREZ, petitioner, vs. HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, respondents. KAPUNAN, J.: A civil case damages was filed by petitioner Socorro D. Ramirez in the Regional Trial Court of Quezon City alleging that the private respondent, Ester S. Garcia, in a confrontation in the latter's office, allegedly vexed, insulted and humiliated her in a "hostile and furious mood" and in a manner offensive to petitioner's dignity and personality," contrary to morals, good customs and public policy." 1 In support of her claim, petitioner produced a verbatim transcript of the event and sought moral damages, attorney's fees and other expenses of litigation in the amount of P610,000.00, in addition to costs, interests and other reliefs awardable at the trial court's discretion. The transcript on which the civil case was based was culled from a tape recording of the confrontation made by petitioner. 2 The transcript reads as follows: Plaintiff Soccoro Ramirez (Chuchi) Good Afternoon M'am.

CHUCHI Kasi, naka duty ako noon. ESG Tapos iniwan no. (Sic) CHUCHI Hindi m'am, pero ilan beses na nila akong binalikan, sabing ganoon ESG Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) mag explain ka, kasi hanggang 10:00 p.m., kinabukasan hindi ka na pumasok. Ngayon ako ang babalik sa 'yo, nag-aaply ka sa States, nag-aaply ka sa review mo, kung kakailanganin ang certification mo, kalimutan mo na kasi hindi ka sa akin makakahingi. CHUCHI Hindi M'am. Kasi ang ano ko talaga noon i-cocontinue ko up to 10:00 p.m. ESG Bastos ka, nakalimutan mo na kung paano ka

D.

Defendant Ester S. Garcia (ESG) Ano ba ang nangyari sa 'yo, nakalimot ka na kung paano ka napunta rito, porke member ka na, magsumbong ka kung ano ang gagawin ko sa 'yo.

pumasok dito sa hotel. Magsumbong ka sa Union kung gusto mo. Nakalimutan mo na kung paano ka nakapasok dito "Do you think that on your own makakapasok ka kung hindi ako. Panunumbyoy an na kita (Sinusumbatan na kita). CHUCHI Itutuloy ko na M'am sana ang duty ko. ESG Kaso ilang beses na akong binabalikan doon ng mga no (sic) ko. ESG Nakalimutan mo na ba kung paano ka pumasok sa hotel, kung on your own merit alam ko naman kung gaano ka "ka bobo" mo. Marami ang nag-aaply alam kong hindi ka papasa. CHUCHI Kumuha kami ng exam noon. ESG Oo, pero hindi ka papasa.

CHUCHI Eh, bakit ako ang nakuha ni Dr. Tamayo ESG Kukunin kasi ako. ka

CHUCHI Kasi M'am, binbalikan ako ng mga taga Union. ESG Nandiyan na rin ako, pero huwag mong kalimutan na hindi ka makakapasok kung hindi ako. Kung hindi mo kinikilala yan okey lang sa akin, dahil tapos ka na. CHUCHI Ina-ano ko m'am na utang na loob. ESG Huwag na lang, hindi mo utang na loob, kasi kung baga sa no, nilapastangan mo ako. CHUCHI Paano kita nilapastangana n? ESG Mabuti pa lumabas ka na. Hindi na ako makikipagusap sa 'yo. Lumabas ka na. Magsumbong ka. 3 As a result of petitioner's recording of the event and alleging that the said act of secretly taping the confrontation was illegal, private respondent filed a criminal case before the Regional Trial Court of Pasay City for violation of Republic

CHUCHI Eh, di sana ESG Huwag mong ipagmalaki na may utak ka kasi wala kang utak. Akala mo ba makukuha ka dito kung hindi ako. CHUCHI Mag-eexplain ako. ESG Huwag na, hindi ako mag-papaexplain sa 'yo, makaalala ka kung paano ka puma-rito. "Putang-ina" sasabi-sabihin mo kamaganak ng nanay at tatay mo ang mga magulang ko. ESG Wala na akong pakialam, dahil nandito ka sa loob, nasa labas ka puwede ka ng hindi pumasok, okey yan nasaloob ka umalis ka doon.

Act 4200, entitled "An Act to prohibit and penalize wire tapping and other related violations of private communication, and other purposes." An information charging petitioner of violation of the said Act, dated October 6, 1988 is quoted herewith: INFORMATION The Undersigned Assistant City Fiscal Accusses Socorro D. Ramirez of Violation of Republic Act No. 4200, committed as follows: That on or about the 22nd day of February, 1988, in Pasay City Metro Manila, Philippines, and within the jurisdiction of this honorable court, the above-named accused, Socorro D. Ramirez not being authorized by Ester S. Garcia to record the latter's conversation with said accused, did then and there willfully, unlawfully and feloniously, with the use of a tape recorder secretly record the said conversation and thereafter communicate in writing the contents of the said recording to other person.

Contrary law.

to

Pasay City, Metro Manila, September 16, 1988.

From the trial court's Order, the private respondent filed a Petition for Review on Certiorari with this Court, which forthwith referred the case to the Court of Appeals in a Resolution (by the First Division) of June 19, 1989. On February 9, 1990, respondent Court of Appeals promulgated its assailed Decision declaring the trial court's order of May 3, 1989 null and void, and holding that: M [T]he allegations sufficiently A constitute an offense punishable R under Section 1 of R.A. 4200. In thus I quashing the information based on A the ground that the facts alleged do N not constitute an offense, the respondent O judge acted in grave abuse of discretion correctible 5 by certiorari. M . Consequently, on February 21, 1990, petitioner filed a Motion C for Reconsideration which respondent U Court of Appeals 6 denied in its Resolution dated June 19,N1990. Hence, the instant petition. E T A Petitioner vigorously argues, as her "main and principal issue" 7 that the applicable provision of Republic Act 4200 does not A apply to the taping of a private conversation by one of the s parties to the conversation. She contends that the provision s merely refers to the unauthorized taping of a private t conversation by a party other than those involved in the . communication. 8 In relation to this, petitioner avers that the substance or content of the conversation must be alleged in C the Information, otherwise the facts charged would not i constitute a violation of R.A. 4200. 9 Finally, petitioner agues t that R.A. 4200 penalizes the taping of a "private y communication," not a "private conversation" and that consequently, her act of secretly taping her conversation with F private respondent was not illegal under the said act. 10 i s c We disagree. a l First, legislative intent is determined principally from the language of a statute. Where the language of a statute is clear and unambiguous, the law is applied according to its express terms, and interpretation would be resorted to only where a literal interpretation would be either impossible 11 or absurb or would lead to an injustice. 12 Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized Wire Tapping and Other Related Violations of Private Communication and Other Purposes," provides:

Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash the Information on the ground that the facts charged do not constitute an offense, particularly a violation of R.A. 4200. In an order May 3, 1989, the trial court granted the Motion to Quash, agreeing with petitioner that 1) the facts charged do not constitute an offense under R.A. 4200; and that 2) the violation punished by R.A. 4200 refers to a the taping of a communication by a person other than a participant to the communication. 4

Sec. 1. It shall be unlawfull for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise described. The aforestated provision clearly and unequivocally makes it illegal for any person, not authorized by all the parties to any private communication to secretly record such communication by means of a tape recorder. The law makes no distinction as to whether the party sought to be penalized by the statute ought to be a party other than or different from those involved in the private communication. The statute's intent to penalize all persons unauthorized to make such recording is underscored by the use of the qualifier "any". Consequently, as respondent Court of Appeals correctly concluded, "even a (person) privy to a communication who records his private conversation with another without the knowledge of the latter (will) qualify as a violator" 13 under this provision of R.A. 4200. A perusal of the Senate Congressional Records, moreover, supports the respondent court's conclusion that in enacting R.A. 4200 our lawmakers indeed contemplated to make illegal, unauthorized tape recording of private conversations or communications taken either by the parties themselves or by third persons. Thus: xxx xxx xxx Senator Taada: That qualified only "overhear". Senator Padilla: So that when it is intercepted or recorded, the element of secrecy would not appear to be material. Now, suppose, Your Honor, the recording is not made by all the parties but by some parties and involved not criminal cases that would be mentioned under section 3 but would cover, for example civil cases or special proceedings whereby a recording is made not necessarily by all the parties but perhaps by some in an effort to show the intent of the parties because the actuation of the

parties prior, simultaneous even subsequent to the contract or the act may be indicative of their intention. Suppose there is such a recording, would you say, Your Honor, that the intention is to cover it within the purview of this bill or outside? Senator Taada: That is covered by the purview of this bill, Your Honor. Senator Padilla: Even if the record should be used not in the prosecution of offense but as evidence to be used in Civil Cases or special proceedings? Senator Taada: That is right. This is a complete ban on tape recorded conversations taken without the authorization of all the parties. Senator Padilla: Now, would that be reasonable, your Honor? Senator Taada: I believe it is reasonable because it is not sporting to record the observation of one without his knowing it and then using it against him. It is not fair, it is not sportsmanlike. If the purpose; Your honor, is to record the intention of the parties. I believe that all the parties should know that the observations are being recorded. Senator Padilla: This might reduce the utility of recorders. Senator Taada: Well no. For example, I was to say that in meetings of the board of directors where a tape recording is taken, there is no objection to this if all the parties know. It is but fair that the people whose remarks and observations are being made should know that the observations are being recorded. Senator Padilla: understand. Now, I can

Senator Taada: That is why when we take statements of persons, we say: "Please be informed that whatever you say here may be used against you." That is fairness and that is what we demand. Now, in spite of that warning, he makes damaging statements against his own interest, well, he cannot complain any more. But if you are going to take a recording of the observations and remarks of a person without him knowing that it is being taped or recorded, without him knowing that what is being recorded may be used against him, I think it is unfair. xxx xxx xxx (Congression Record, Vol. III, No. 31, p. 584, March 12, 1964) Senator Diokno: Do you understand, Mr. Senator, that under Section 1 of the bill as now worded, if a party secretly records a public speech, he would be penalized under Section 1? Because the speech is public, but the recording is done secretly. Senator Taada: Well, that particular aspect is not contemplated by the bill. It is the communication between one person and another person not between a speaker and a public. xxx xxx xxx (Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964) xxx xxx xxx The unambiguity of the express words of the provision, taken together with the above-quoted deliberations from the Congressional Record, therefore plainly supports the view held by the respondent court that the provision seeks to penalize even those privy to the private communications. Where the law makes no distinctions, one does not distinguish.

Second, the nature of the conversations is immaterial to a violation of the statute. The substance of the same need not be specifically alleged in the information. What R.A. 4200 penalizes are the acts of secretly overhearing, intercepting or recording private communications by means of the devices enumerated therein. The mere allegation that an individual made a secret recording of a private communication by means of a tape recorder would suffice to constitute an offense under Section 1 of R.A. 4200. As the Solicitor General pointed out in his COMMENT before the respondent court: "Nowhere (in the said law) is it required that before one can be regarded as a violator, the nature of the conversation, as well as its communication to a third person should be professed." 14 Finally, petitioner's contention that the phrase "private communication" in Section 1 of R.A. 4200 does not include "private conversations" narrows the ordinary meaning of the word "communication" to a point of absurdity. The word communicate comes from the latin word communicare, meaning "to share or to impart." In its ordinary signification, communication connotes the act of sharing or imparting signification, communication connotes the act of sharing or imparting, as in a conversation, 15 or signifies the "process by which meanings or thoughts are shared between individuals through a common system of symbols (as language signs or gestures)" 16 These definitions are broad enough to include verbal or non-verbal, written or expressive communications of "meanings or thoughts" which are likely to include the emotionally-charged exchange, on February 22, 1988, between petitioner and private respondent, in the privacy of the latter's office. Any doubts about the legislative body's meaning of the phrase "private communication" are, furthermore, put to rest by the fact that the terms "conversation" and "communication" were interchangeably used by Senator Taada in his Explanatory Note to the bill quoted below: It has been said that innocent people have nothing to fear from their conversations being overheard. But this statement ignores the usual nature of conversations as well the undeniable fact that most, if not all, civilized people have some aspects of their lives they do not wish to expose. Free conversations are often characterized by exaggerations, obscenity, agreeable falsehoods, and the expression of anti-social desires of views not intended to be taken seriously. The right to the privacy of communication, among others, has expressly been assured by our Constitution. Needless to state here, the framers of our Constitution must

have recognized the nature of conversations between individuals and the significance of man's spiritual nature, of his feelings and of his intellect. They must have known that part of the pleasures and satisfactions of life are to be found in the unaudited, and free exchange of communication between individuals free from every unjustifiable intrusion by whatever 17 means. In Gaanan vs. Intermediate Appellate Court, a case which dealt with the issue of telephone wiretapping, we held that the use of a telephone extension for the purpose of overhearing a private conversation without authorization did not violate R.A. 4200 because a telephone extension devise was neither among those "device(s) or arrangement(s)" enumerated therein, 19 following the principle that "penal statutes must be 20 construed strictly in favor of the accused." The instant case turns on a different note, because the applicable facts and circumstances pointing to a violation of R.A. 4200 suffer from no ambiguity, and the statute itself explicitly mentions the unauthorized "recording" of private communications with the use of tape-recorders as among the acts punishable. WHEREFORE, because the law, as applied to the case at bench is clear and unambiguous and leaves us with no discretion, the instant petition is hereby DENIED. The decision appealed from is AFFIRMED. Costs against petitioner. SO ORDERED. G.R. No. 100257 June 8, 1992 ATTY. FELIPE C. NAVARRO, petitioner, vs. HON. COURT OF APPEALS, DIRECTOR OF LANDS, and MICHAEL AMOS, respondents. PARAS, J.: This is a petition for review on certiorari seeking the reversal of the decision * dated March 25, 1991 as well as the resolution dated March 28, 1991 of the respondent Court of Appeals in CA-G.R. CV No. 17476 entitled "Marcelo Yadno, Filmore Laoyan v. Director of Lands and Michael Amos which affirmed the decision ** dated August 26, 1987 of the Regional Trial Court of Baguio and Benguet in joint trial of Land Registration Case No. 135 entitled "Marcelo Yadno v. Director of Lands, et al." and Land Registration Case No. 283
18

entitled "Filmore Laoyan v. Director of Land, et al." dismissing, among others, the application for registration of certain parcels of land of Yadno and Laoyan. The facts of this case are as follows: On the two separate dates of September 10, 1964 and September 17, 1968, applicants Marcelo Yadno (now deceased) and Filmore Laoyan, respectively, sought to register certain parcels of land (Original Records. Vol. I, pp. 14; Vol. III, pp. 1-4). In LRC No. N-135, Marcelo Yadno seeks to register a parcel of land situated at Barrio Pico. Municipality of La Trinidad, Province of Benguet, which is embraced in survey plan PSU-204731 approved by the Director of Lands on May 19, 1964. In Land Registration Case No, N-283. Filmore Laoyan applied for the registration of a parcel of land situated at Sitio Longlong, Barrio Pico. Municipality of La Trinidad. Province of Benguet, embraced in survey plan PSU225299 approved by the Director of Lands on July 27. 1966 (Rollo, p. 35). The notice of initial hearing in LRC No. N-135 was published in the Official Gazette in its issues on April 5 and 12, 1965 (Orig. Records, Vol. 1, p. 55) and posted by Deputy Sheriff Emilio Dacanay in the Municipality of La Trinidad. Benguet, Mt. Province on 7th and 8th day of June, 1965 (Ibid., p. 63). In LRC Case No. 283, the notice of initial hearing was also published in the Official Gazette in its issues an November 25 and December 2, 1968 (Vol. III. p. 26) and posted by the same Deputy Sheriff on December 12, 1968 in the Municipality of La Trinidad, Baguio City (Ibid., p. 20). To the aforesaid applications. the Director of Lands and Director of Forestry seasonably filed an opposition on the ground that neither the applicants nor their predecessor-ininterest possesses sufficient title to acquire ownership in fee simple of the parcels of land applied for: that they have not been in open, continuous, exclusive and notorious possession and occupation of the lands in question for at least 30 years immediately preceding the filing of the present application; that these parcels of land are portions of the Public domain belonging to the Republic of the Philippines not subject to appropriation and that the parcels of land applied for are within the unclassified public forest land (Orig. Records, Vol. I, pp. 78-79; Vol. III. pp. 40; 46-47). Aside from the opposition filed by the government, private persons also opposed said applications. In LRC No. N-135, the Heirs of Gaogao Tinuan, Michael Amos, Isabelo Akiapat, Luiz Lorenzo and Corona Vda. de Jimenez and children registered their opposition to Yadno's application. In LRC No. N-283, on the other hand, Corona Vda. de Jimenez and Marcelo Yadno also opposed the application of Laoyan.

At the hearing on September 13, 1965 of LRC No. N-135, the Court issued an order of general default with the exception of the Director of Lands, Reforestation Administration. Michael Amos, Julian Amos and Tiotioen (Orig. Records, Vol. 1. p. 75). An order of general default was also issued by the same court on March 13, 1969 in LRC No. N-283 with the exception of the Director of Lands, Director of Forestry and the Reforestation Administration: Michael Amos, Ezra Nabus and Corona Vda. de Jimenez (Ibid., Vol. III, p. 36). On July 10, 1969, the lower court ordered that LRC No. N283 and LRC No. N-135 be tried together. (Ibid., p. 76) Consequently, joint trial then ensued. In order to establish thirty (30) years of open and continuous possession over the subject property, applicant Filmore Laoyan, among other things. presented the testimonies of Arsenio Espiritu, Herminio Arenas and the applicant himself Filmore Laoyan. Filmore Laoyan claimed that the land applied for. consisting of Lots 1 and 3, containing an area of 4 hectares, was first in the possession of his grandfather in 1918. The possession was then taken over by his father, who paid the land taxes (Exhs. J, J-1 to J-12) and used it for grazing and planted it with coffee. Then in 1949, he took over from his father and cultivated it. He registered Lots 1 and 3 in his name for tax purposes (Exhs. G and G-1) and paid the land taxes (Exhs. H and H-1). He fenced the Property and also planted it with coffee and camotes. Exhibit G is Tax Declaration 7113, describing "lot 1" PSU 225299 as "uncult. agric. land". containing an area of 2.7685 hectares. Exhibit G-1 is Tax Declaration 7112. describing "lot 3" PSU 225299 as "uncult. agric land". containing an area of 2.9719 hectares. Exhibits H and H-1 are official receipts No. 0919364-65 both dated September 30, 1968. evidencing the payment of the land tax for lots 1 and 2, for the years "1965, 1966, 1967, 1968". Also offered as documentary evidence are Exhibits I and I-1. official receipts evidencing payment of real property tax covered by Tax Declaration No. 222: Exhibits I-2 to I-8 are also official receipts evidencing payment of real property tax covered by Tax Declaration Nos. 222 and 500: Exhibits 1-9 to 1-12 are likewise official receipt evidencing, payment of real property tax covered by Tax Declarations 222. 500 and 906; and Exhibit I-13. is an official receipt evidencing payment of property tax without specification as to which property the tax was paid: Exhibit J is a Homestead Application. filed with the Bureau of Lands on April 24, 1961, signed by a certain "Belen B. Espiritu" over a "five (5) hectares" tract of land " . . . covered by my Tree Farm Lease application dated April 10, 1987." There is a certification in this exhibit tending to show that "I (Filmore Laoyan) granted permission to herein applicant . . . to occupy and improve the land . . ., which . . . is a portion of the property I inherited from my ancestors." And.

finally. there is Exhibit J-3. an official receipt evidencing payment of "HA Fee." (Rollo, pp, 16-17) Arsenio G. Espiritu in his testimony also stated that he knows the property being applied for registration because he used to occupy a portion of the same; that on April 10, 1957. he applied for a tree farm lease with the Bureau of Forestry and a license to cut pine trees which was granted; that on May 4, 1961, applicant Laoyan informed him that he was encroaching upon his property and likewise confirmed the testimony of the applicant that there were coffee plants and camote patches in the area which were however destroyed during a big forest fire in the area in 1967; that he did not pursue his homestead application when he was informed by the applicant about his application for registration. but nevertheless, was employed by the applicant as the surveyor. Herminio Arenas merely corroborated the fact that the applicant was in open. adverse, public and in continuous possession of the property being applied for (Rollo, pp. 1213). In the case of Marcelo Yadno, he identified his signature in his application for registration (Exhs. A, A-1, A-2) and in his affidavit dated January 21, 1958 (Exh. B). which states among other thongs, that he is the owner of "Pico, La Trinidad with an area of 0.0799 square meters" (TSN, March 7, 1985, pp. 16-22). He also offered a technical description (Exh. B), surveyor's certificate (Exh. C). Treasurer's Certificate dated September 8, 1964 (Exhs. D, D-1), Survey Plan. PSU 204731 (Exh. B) and Transmittal letter of October 20, 1964 (Exh. E) (Rollo, p. 16). On the other hand. oppositor Michael Amos presented the testimonies of Evaristo Tiotioen, Atty. Crisogono Bartolo. Jr., Engineer Edilberto Quiaoit Matias Camolo, Generoso Javier, Luis Dawayan and the oppositor himself Michael Amos, to support his application for registration. The testimonial and documentary evidence of Michael Amos showed that Amos, since 1937, by himself and thru his predecessors-in-interest has been in open, continuous and notorious possession of the land applied for up to the present. The late Tulingan Pulot, and his widow, Singao Pul-ot, possessed the land applied for, located at Bo. Pico, La Trinidad, Benguet, Mountain Province, since 1932. They declared the land before the Second World War for tax purposes under Tax Declaration No. 209. Then, Singao Pulot, because of old age, relinquished her rights thereto in favor of Evaristo Tiotioen. Evaristo declared that the spouses occupied the property as early as 1932. After the Second World War, the property was occupied by Michael Amos, after acquiring the same from him (Tiotioen) who received as

consideration for the transfer "cash" "some seedlings", and also "helped me in my survey." Evaristo Tiotioen, a former clerk of the Municipal Treasurer's Office of La Trinidad, Benguet testified that during the time the tax receipts were issued to the Laoyan family, they were paying taxes but on another land and not the one applied for by them (Exhibits "I" to "I-13"), (t.s.n,. Hearing of March 17, 1983, pp. 17 to 21). Atty. Crisogono S. Bartolo, Jr. of the Bureau of Lands also stated in his testimony that he had made an inspection of the land in question that the applications of Marcelo Yadno and Filmore Laoyan overlapped the area surveyed by Michael Amos. He also found out that Michael Amos has made permanent improvements on the land while applicants Yadno and Laoyan did not introduce any (Exhibits "11" and "12"); (t.s.n., Hearing of February 2, 1584, pp. 6-9). Engineer Edilberto Quiaoit, a surveyor of the Bureau of Lands testified about the possibility that Yadno and Laoyan only copied the survey plan of Michael Amos (t.s.n., Hearing of August 18, 1983, pp. 4-7, 9-11). Another witness in the person of Matias Camolo also stated that he was with the surveyor of Marcelo Yadno when he conducted the survey and they just relied on the existing corners contained in the survey plan of Michael Amos and Isabelo Akiapat. It was also noted by the Court during the ocular inspection conducted on the land in question that the applicants Yadno and Laoyan were not able to show any improvements made by them, whereas, Amos was able to show houses, dirt roads, fences, plants and canals. The existence of these improvements was also corroborated by Generoso Javier,. a forester of the Bureau of Forestry (Exhibits "1" "2" to "2-C"). Another witness who confirmed the introduction of the improvements on the land by Amos was Luis Dawayan (Rollo, pp. 13-14). On August 26, 1987, the trial court rendered judgment, the dispositive portion of which reads: WHEREFORE, IN VIEW OF THE FOREGOING, the Court renders judgment dismissing the applications of Marcelo Yadno and Filmore Laoyan, and awarding the parcel of land under PSU-198528 to oppositor Michael Amos as the true and lawful owner and ordering the registration of the same in his name, without prejudice to the deed of quitclaim executed by Michael Amos in favor of

Damian L. Jimenez, and ordering the former to segregate the portion subject matter of said quitclaim. SO ORDERED. (Orig. Records, Vol. III. pp. 501-504) Appeal was interposed by Marcelo Yadno with the Court of Appeals but during the pendency of the appeal Marcelo Yadno died (Rollo, p. 22). The Office of the Solicitor General. on the other hand, was excused from filing the brief for the public oppositors (Ibid., p 15). On March 25, 1991, the respondent Court of Appeals affirmed the disputed decision of the trial court (Ibid., pp. 10-19). Subsequently, Atty. Jose Edward Navarro filed a pleading denominated as a notice of substitution and motion for reconsideration. It prayed. among others, that Atty. Felipe Navarro, the counsel of the late Marcelo Yadno. take the place of Marcelo Yadno as a substitute (Ibid., pp. 20-21). On May 28. 1991, the Court of Appeals denied said motion for reconsideration. Hence. this petition. Petitioner assigns the following errors, to wit: 1. Respondent Court of Appeals erred in holding that: "Applicant Marcelo Yadno did not present any competent evidence either through his witnesses or documentary to support his application for registration." 2. Respondent Court of Appeals erred in admitting the opposition of respondent Michael Amos filed on July 11, 1966. 3. Respondent Court of Appeals erred in holding that: "Applicant Marcelo Yadno failed to establish that he was in actual and physical possession of the land applied for by him for more than 30 years, and have introduced permanent improvements thereon to be able to comply with the provisions of Act 496 and R.A. 1942 amending Sec. 48 (h) and (c) of C.A. 141." 4. Respondent Court of Appeals erred in denying the application of Marcelo Yadno and awarding title to the land to

oppositor Michael Amos who was never an applicant to any of the lands in Baguio and Benguet and consequently erred in not confirming title to applicant Marcelo Yadno, his kinsmen. And the tribe pursuant to law as embodied in the contract of legal services in lieu for attorney's fees of Atty. Felipe C. Navarro as admitted by the respondent Court of Appeals in its November 2. 1989 resolution. The immediate issue in this case is whether or not Atty. Felipe C. Navarro, the petitioner, is the proper party to represent Marcelo Yadno the deceased. Petitioner. Atty. Felipe Navarro, as invoking the contract of legal services he entered with has former client Marcelo Yadno and others as his authority to take the place of Yadno in case of the latter's death. Hence, when the supervening event of death came during the pendency of Yadno's appeal to the Court of Appeals, petitioner Navarro simply filed a notice of substitution and a motion for reconsideration rolled into one and upon receipt of an adverse decision, he is now before this Court pursuing the case in lieu of the late Marcelo Yadno. Private respondent counters that the "contract of legal services" could not have transmitted any right to Atty. Navarro to succeed the late Marcelo Yadno considering that the alleged document is neither a substitution of heirs nor transmittal of rights on the land in litigation in the case at bar. He avers that the title of the contract itself states that it is a contract for legal services and its contents which states ". . . our rights shall only be transmitted to our heirs . . ." meaning the legal heirs could not have possibly made Atty. Navarro as heir of Marcelo Yadno. The contention of the private respondent is well taken. Section 17, Rule 3 of the Rules of Court sets the rule on substitution of parties in case of death of any of the parties. Under the Rule it is the court that is called upon after notice of a party's death and the claim is not thereby extinguished to order upon proper notice the legal representative of the deceased to appear within a period of thirty (30) days or such time as it may grant. Section 16 of Rule 3 provides: Whenever a party to a pending case dies . . . it shall be the duty of his

attorney to inform the court promptly of such death . . . and to give the name and residence of the executor, administrator, guardian or other legal representative of the deceased. In the case at bar. petitioner Navarro did not give any explanation why he failed to give the name and residence of the executor, administrator or guardian of the deceased, if there was any, and in their absence at least the name and residence of the heirs of Yadno who shall take the place of the deceased (Evangelista v. Soriano, No. L-4625, 92 Phil. 190 [1952]). Clearly, priority is given to the legal representative of the deceased, that is, the executor or administrator of his estate. It is only in cases of unreasonable delay in the appointment of an executor or administrator, or in cases where the heirs resort to an extrajudicial settlement of the estate. that the court may adopt the alternative of allowing the heirs of the deceased to he substituted for the deceased (Liwas v. Court of Appeals, G.R. No. L-45809. December 12, 1986, 146 SCRA 171). Petitioner Navarro took the short cut route of making himself the legal representative of Yadno on the basis of the contract of legal services. This mode resorted to by Navarro is clearly without any legal basis. Even at this point in time, the record is bereft of any evidence that would grant herein petitioner Navarro any authority to represent the late Marcelo Yadno. In the same vein, there is also no showing of any evidence granted to herein counsel Jose Edward Navarro to file and prosecute the case and any other incidental cases for and in behalf of Yadno's heirs. On the basis of the foregoing alone the petition should be dismissed. And even assuming that Atty. Navarro may represent Yadno, the petition itself is bereft of merit. It must be emphasized that it is the burden of the applicant to prove its positive averments, not for the Government or the private oppositors to establish a negative proposition insofar as the applicant's specific lots are concerned (Gutierrez Hermanos v. C.A., G.R. Nos. 54472-77, September 28, 1989, 178 SCRA 37). Applying this rule to the instant case, the conclusions reached by the court a quo and respondent Court of Appeals that the petitioner through his predecessors-ininterest has not been in open, continuous, exclusive and notorious possession of the subject land under a bona fide claim of ownership are binding on this Court. Indeed the jurisdiction of this Court in cases brought to it from the Court

of Appeals is limited to reviewing and revising errors of law imputed to the latter, its findings of facts being conclusive generally. (Andres V. Manufacturer Hanover and Trust Corp., G.R. No. 82670, September 15, 1989, 117 SCRA 618; Lauron v. CA G.R. No. 62021, April 6, 1990, 184 SCRA 215). Prescinding therefrom, this Court finds no reason to disturb the conclusion of the Court of Appeals when it ruled that: The exhibits presented by the late Marcelo Yadno, to wit: application for registration (Exh. A), technical description (Exh. B), surveyor's certificate (Exh. C), Treasurer's Certificate (Exh. D, Survey Plan. PSU 204731 (Exh. E) and Transmittal Letter dated October 20. 1964 (Exh F) and their submarkings are part of the case records and of themselves do not prove that he had been in open, continuous and notorious possession of the property for thirty (30) years. He did not even offer a tracing cloth plan, the primary purpose of which is to fix the exact location and definitive Identity of the land, as shown in the survey plan and technical description. He has not offered evidence that he has declared the land for tax purposes in his name. and/or that he had paid the land taxes thereon. This Court has ruled that although tax receipts are not incontrovertible evidence of ownership, they constitute at least proof that the holder had a claim of title over the property (Director of Lands v. Reyes, G.R. No. L-27594, November 28, 1975, 68 SCRA 177; Director of Lands v. Santiago, G.R. No. L-41278, April 15, 1988, 160 SCRA 186). In the case of Filmore Laoyan, the findings of the respondent appellate court is also noteworthy: The testimony of Laoyan that he inherited Lots 1 and 3 from his father, who, in turn, also inherited it from his father is not borne out in Exhibits I to I12. The land described are covered by Tax Declaration Nos. 222, 500 and 906, while Lots 1 and 3 are covered by Exhs. G and G-1, "New" Tax Declaration Nos. 7112 and 7113, which begun only in 1965, or after these cases were filed in court. Tiotioen, a clerk of the Municipal

Treasurer's Office of La Trinidad, Benguet, testified that Exhibits I to I-13 were in payment of another land which is different from and not Lots 1 and 3. Like Yadno, Laoyan did not also present a tracing cloth plan of the property sought to be registered, which would pinpoint the exact location and definitive identity of the land as shown in the survey plan and technical description. Indeed, Felicitacion Roxas, of the Commission on the Settlement of Land Problems. Department of Justice, stationed in Baguio City, and formerly Legal Officer IV of the Bureau of Lands, Baguio City, testified that she, together with the applicants and the District Land officer. Bureau of Lands, conducted several ocular inspections of the lands applied for, and found that both appellants have not introduced permanent improvements on the lands in question. That applicant Laoyan has paid the corresponding taxes starting in the year 1965 is of no moment because the important thing to consider is the compliance of his predecessors-in-interest with the 30-year period which he failed to substantiate. Inevitably, the applicants (Yadno and Laoyan) have failed to submit convincing proof of their predecessors-in-interest actual, peaceful and adverse possession in the concept of owner of the lots in question during the period required by law. This is especially true in view of the basic presumption that lands of whatever classification belong to the State and evidence of a land grant must be "well-nigh incontrovertible" (Santiago v. Delos Santos, G.R. No. L-20241, November 22, 1974, 61 SCRA 146; Director of Lands v. Reyes, G.R. No. L27594, supra). On the other hand, this convincing proof of compliance with the 30-year period has been met by herein private respondent Michael Amos. The decision of the Court of Appeals on this point is hereby quoted to wit: The evidence presented by oppositorappellee Michael Amos consisting of his testimony and that of Evaristo Tiotioen, Atty. Crisogono Bartolo, Jr. and Engr. Edilberto Quiaoit, as well as Exhibits 1 to 16 established that Michael Amos, since 1937, by himself and thru his predecessor-in-interest

have been in open, continuous and notorious possession of the land applied for up to the present. The late Tulinga Pul-ot, and his widow Signao Pul-ot, possessed the land applied for located at Bo. Pico, La Trinidad, Benguet, Mountain Province, since 1932. They declared the land before the Second World War for tax purposes under Tax Declaration No. 209. Then, Signao Pul-ot, because of old age, relinquished her rights thereto in favor of Evaristo Tiotioen. Evaristo declared that the spouses occupied the property as early as 1932. After the Second World War, the property was occupied by Michael Amos after acquiring the same form him (Tiotioen) who received as consideration for the transfer "cash", "some seedlings", and also "helped me in my survey." That Amos has made permanent improvements on the land, is borne out by testimony of Atty. Crisogono S. Bartolo, Jr., of the Bureau of Lands, corroborated by Generoso Javier, a forester of the Bureau of Forestry (Exhs. 1, 2, 2-A, 2-B and 2-C), and by Luis Dawayan. (Rollo, p. 18) The foregoing being conclusions of fact of the Court of Appeals, this Court finds them to be final and binding (Lauron v. CA, supra). It is not the function of this Court to re-examine all over again the oral and documentary evidence submitted by the parties unless the findings of facts of the Court of Appeals is not supported by the evidence on record or the judgment is based on misapprehension of facts (Remalante v. Tibe, et al., G.R. No. L-59514, February 25, 1988, 158 SCRA 138) which is not so in the case at bar. PREMISES CONSIDERED, the decision appealed from is AFFIRMED. SO ORDERED. G.R. No. 131492 September 29, 2000

ROGER POSADAS, ROSARIO TORRES-YU, and MARICHU LAMBINO, petitioners, vs. THE HON. OMBUDSMAN, THE SPECIAL PROSECUTOR, and ORLANDO V. DIZON, respondents.

MENDOZA, J.: Dennis Venturina, a member of Sigma Rho at the University of the Philippines, was killed in a rumble between his fraternity and another fraternity on December 8, 1994. In a letter dated December 11, 1994, petitioner Roger Posadas, then Chancellor of U.P. Diliman in Quezon City, asked the Director of the National Bureau of Investigation for assistance in determining the persons responsible for the crime. In response to the request, respondent Orlando V. Dizon, Chief of the Special Operations Group of the NBI, and his men went to U.P. on December 12 and, on the basis of the supposed positive identification of two alleged eyewitnesses, Leandro Lachica and Cesar Mangrobang, Jr., attempted to arrest Francis Carlo Taparan and Raymundo Narag, officers/members of the Scintilla Juris Fraternity, as suspects in the killing of Venturina. It appears that the two suspects had come that day to the U.P. Police Station for a peace talk between their fraternity and the Sigma Rho Fraternity. Petitioners Posadas, Marichu Lambino, and Rosario TorresYu, also of U.P., and a certain Atty. Villamor, counsel for the suspects, objected on the ground that the NBI did not have warrants of arrest with them. Posadas and Atty. Villamor promised to take the suspects to the NBI Office the next day. As a result of their intervention, Taparan and Narag were not arrested by the NBI agents on that day.1 However, criminal charges were filed later against the two student suspects.2 Dizon then filed a complaint in the Office of the Special Prosecutor, charging petitioners Posadas, Torres-Yu, Lambino, Col. Eduardo Bentain, Chief of the Security Force of the U.P. Police, and Atty. Villamor with violation of P.D. 1829,3 which makes it unlawful for anyone to obstruct the apprehension and prosecution of criminal offenders. On May 18, 1995, an information4 was filed against them, alleging that: That on or about December 12, 1994 and for sometime prior or subsequent thereto, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, above-named accused, namely: ROGER POSADAS, Chancellor; ROSARIO YU Vice Chancellor; ATTY. MARICHU LAMBINO Asst. Legal Counsel; and COL. EDUARDO BENTAIN Chief, Security Force, all of the University of the Philippines, Diliman, Quezon City, all public officers, while in the performance of their respective official functions, taking advantage of their official duties and committing the crime in relation to their office, conspiring and confederating with each other and with a certain ATTY. VILLAMOR, did then and there wilfully,

knowingly and criminally obstruct, impede and frustrate the apprehension of FRANCIS CARLO TAPARAN and RAYMUNDO NARAG, both principal suspects involved in the brutal killing of DENNIS VENTURINA, a U.P. graduating student and Chairperson of the UP College of Administration, Student Council, and delaying the investigation and prosecution of the said heinous case by harboring and concealing said suspects thus, leading to the successful escape of suspects Narag and another principal suspect JOEL CARLO DENOSTA; that said above acts were done by the above-named accused public officials despite their full knowledge that said suspects were implicated in the brutal slaying of said Dennis Venturina, thus preventing the suspects arrest, prosecution and conviction. CONTRARY TO LAW. Later, on motion of petitioners, the Special Prosecutor's Office recommended the dismissal of the case. But the recommendation was disapproved. In a memorandum, dated September 8, 1997, the Office of the Ombudsman directed the Special Prosecutor to proceed with the prosecution of petitioners in the Sandiganbayan. Hence this petition for certiorari and prohibition to set aside the resolution of the Ombudsman's office ordering the prosecution of petitioners. Petitioners contend that: I. THE HONORABLE OMBUDSMAN COMMITTED GRAVE ABUSE OF DISCRETION WHEN HE RULED THAT: 1) STUDENTS COULD BE ARRESTED WITHOUT WARRANT ON MERE SUSPICION; 2) PD 1829 INCLUDES ARRESTS WITHOUT WARRANTS ON MERE SUSPICION; AND WHEN HE REVERSED THE FINDINGS AND RESOLUTION OF THE SPECIAL PROSECUTION OFFICER, THE DEPUTY SPECIAL PROSECUTOR AND THE SPECIAL PROSECUTOR, WHO CONDUCTED THE REINVESTIGATION OF THE CASE; AND FINALLY WHEN HE RESOLVED THAT PETITIONERS SHOULD BE SUBJECTED TO PUBLIC TRIAL WHEN THERE IS NO PROBABLE CAUSE AND NO BASIS. II. SECTION 1, PARAGRAPH C PRESIDENTIAL DECREE NO. 1829 5 UNCONSTITUTIONAL. OF IS

Two issues are raised in this case, to wit: (1) Whether the attempted arrest of the student suspects by the NBI could be validly made without a warrant; and (2) Whether there was probable cause for prosecuting petitioners for violation of P.D. No. 1829. We answer these questions in the negative. First. In view of Art. III, 2 of the Constitution, the rule is that no arrest may be made except by virtue of a warrant issued by a judge after examining the complainant and the witnesses he may produce and after finding probable cause to believe that the person to be arrested has committed the crime. The exceptions when an arrest may be made even without a warrant are provided in Rule 113, 5 of the Rules of Criminal Procedure which reads: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of the facts indicating that the person to be arrested has committed it; (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. There is no question that this case does not fall under paragraphs (a) and (c). The arresting officers in this case did not witness the crime being committed. Neither are the students fugitives from justice nor prisoners who had escaped from confinement. The question is whether paragraph (b) applies because a crime had just been committed and the NBI agents had personal knowledge of facts indicating that Narag and Taparan were probably guilty. Respondents contend that the NBI agents had personal knowledge of facts gathered by them in the course of their investigation indicating that the students sought to be arrested were the perpetrators of the crime.6 They invoke the ruling in People v. Tonog, Jr. 7 in which it was held: It may be that the police officers were not armed with a warrant when they apprehended Accusedappellant. The warrantless arrest, however, was justified under Section 5 (b), Rule 133 (sic) of the 1985 Rules of Criminal Procedure providing that a peace officer may, without a warrant, arrest a person "when an offense has in fact just been committed and he has personal knowledge of facts indicating that the person to be arrested has committed it." In this case, Pat. Leguarda, in

effecting the arrest of Accused-appellant, had knowledge of facts gathered by him personally in the course of his investigation indicating that Accused-appellant was one of the perpetrators. In that case, the accused voluntarily went upon invitation of the police officer who later noticed the presence of blood stains on the pants of the accused. Upon reaching the police station, the accused was asked to take off his pants for examination at the crime laboratory. The question in that case involved the admissibility of the maong pants taken from the accused. It is clear that Tonog does not apply to this case. First, the accused in that case voluntarily went with the police upon the latter's invitation. Second, the arresting officer found blood stains on the pants of the accused, on the basis of which he concluded that the accused probably committed the crime for which reason the latter was taken into custody. Third, the arrest was made on the same day the crime was committed. In the words of Rule 113, 5(b), the crime had "just been committed" and the arresting officer had "personal knowledge of the facts indicating that the person to be arrested had committed it." In contrast, the NBI agents in the case at bar tried to arrest Narag and Taparan four days after the commission of the crime. They had no personal knowledge of any fact which might indicate that the two students were probably guilty of the crime. What they had were the supposed positive identification of two alleged eyewitnesses, which is insufficient to justify the arrest without a warrant by the NBI. We have already explained what constitutes "personal knowledge" on the part of the arresting officers: "Personal knowledge" of facts in arrests without a warrant under Section 5 (b) of Rule 113 must be based upon "probable cause" which means an "actual belief or reasonable grounds of suspicion." The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest.8 Indeed, at the time Dennis Venturina was killed, these agents were nowhere near the scene of the crime. When respondent Dizon and his men attempted to arrest Taparan and Narag, the latter were not committing a crime nor were they doing

anything that would create the suspicion that they were doing anything illegal. On the contrary, Taparan and Narag, under the supervision of the U.P. police, were taking part in a peace talk called to put an end to the violence on the campus. To allow the arrest which the NBI intended to make without warrant would in effect allow them to supplant the courts. The determination of the existence of probable cause that the persons to be arrested committed the crime was for the judge to make. The law authorizes a police officer or even an ordinary citizen to arrest criminal offenders only if the latter are committing or have just committed a crime. Otherwise, we cannot leave to the police officers the determination of whom to apprehend if we are to protect our civil liberties. This is evident from a consideration of the requirements before a judge can order the arrest of suspects. Art. III, 2 of the Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. For the failure of the NBI agents to comply with constitutional and procedural requirements, we hold that their attempt to arrest Taparan and Narag without a warrant was illegal. Second. In ordering the prosecution of petitioners for violation of P.D. No. 1829, 1(c), the Office of the Ombudsman stated in its memorandum dated September 8, 1997: From the facts adduced, it is submitted that respondents had reasonable ground to suspect that the SJ members sought to be arrested participated in the clubbing of Dennis Venturina, eventually leading to the latter's demise. It must be remembered that these SJ members were positively identified by two eyewitnesses. A reasonably prudent mind could not just ignore this positive identification. In fact, respondents do not dispute the identification made on the alleged participants in the clubbing of Dennis Venturina. Respondent U.P. officials justify their act of barring the apprehending officers from arresting the SJ members on the ground that the

warrantless arrest sought to be effected did not conform with Sec. 5, Rule 113 of the Rules of Court; thereby averting, what would be in their opinion, an illegal arrest. While this justification may, at best, show their good faith, it does not detract from the fact that they had reasonable ground to suspect that the SJ members sought to be arrested committed the heinous crime of murder as a result of the positive identification made by two eyewitnesses. Besides, the reliance on the alleged illegality of the arrest just shows the clear intent, on respondents' part, to wilfully obstruct, frustrate or, at the least, delay the apprehension and investigation and prosecution of the SJ members positively identified. To be sure, respondents knew fully well that inquest proceedings follow warrantless arrests. It is in this forum where the prosecutor conducting the inquest may rule on their opinion on whether or not the warrantless arrest effected was valid; he having the quasi-judicial authority to rule on this matter. Of course, there are various remedies under the law which respondents may have likewise availed of or resorted to in order to secure the liberty of the SJ members had the latter been arrested, without prejudice to any criminal or administrative actions that they may have filed against the arresting NBI agents. However, it appears that they took the law into their own hands in a manner that obstructed and delayed the investigation being conducted by a law enforcement agency like the NBI. They facilitated the escape of the two SJ members pinpointed by eyewitnesses as among those who clubbed to death Dennis Venturina.9 The question is not whether petitioners had reasonable grounds to believe that the suspects were guilty. The question is whether the suspects could be arrested even in the absence of a warrant issued by a court, considering that, as already explained, the attempted arrest did not fall under any of the cases provided in Rule 113, 5. Regardless of their suspicion, petitioners could not very well have authorized the arrest without warrant of the students or even effected the arrest themselves. Only courts could decide the question of probable cause since the students were not being arrested in flagrante delicto. As the Special Prosecutor stated in his memorandum, dated May 18, 1995, in recommending the dismissal of the case against petitioners: All told, the evidence adduced in this case do not show that on the night of December 12, 1994, the accused knew or had reasonable ground to believe that the students who were then at the U.P. police headquarters had committed a crime.

Neither were the warrantless arrest being sought to be made on campus that night, legal. The U.P. officials then present had every right to prevent the commission of illegal arrests of students on campus. Based on all the foregoing, the obvious conclusion is that, there is no probable cause to charge Posadas, Torres-Yu, Lambino, Bentain and Atty. Villamor of violating Section 1(c) of P.D. 1829. Probable cause is defined as "sufficient ground to engender a well founded belief that a crime cognizable by the court has been committed and that the respondents are probably guilty thereof and should be held for trial" (Section 1, Rule 12, Rules of Court). The absence of an arrest warrant, the absence of knowledge or reasonable ground on the part of the accused to believe that the students had committed a crime, the absence of any law punishing refusal to attend an investigation at the NBI, all show that there is no sufficient ground to charge the accused with Obstruction of Justice. On the contrary, the circumstances show that the accused, in safeguarding the rights of students, were acting within the 10 bounds of law. Third. Petitioners are being prosecuted under the following provision of P.D. No. 1829: SEC. 1. The-penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to 6,000 pesos, or both, shall be imposed upon any person who knowingly or wilfully obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases by committing any of the following acts: xxx xxx xxx

Conformably with the general rule that criminal prosecutions may not be restrained either through a preliminary or final injunction or a writ of prohibition, this Court ordinarily does not interfere with the discretion of the Ombudsman to determine whether there exists reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof and, thereafter, to file the corresponding information with the appropriate courts. There are, however, settled exceptions to this rule, such as those enumerated in Brocka v. Enrile, to wit: a. To afford protection to the constitutional rights of the accused (Hernandez vs. Albano, et al. L-19272, January 25, 1967, 19 SCRA 95); b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions (Dimayuga, et al. vs. Fernandez, 43 Phil. 304; Hernandez vs. Albano, supra; Fortun vs. Labang, et al., L38383, May 27, 1981, 104 SCRA 607); c. When there is a prejudicial question which is sub judice (De Leon vs. Mabanag, 70 Phil. 202); d. When the acts of the officer are without or in excess of authority (Planas vs. Gil, 67 Phil. 62); e. Where the prosecution is under an invalid law, ordinance or regulation (Young vs. Rafferty, 33 Phil. 556; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 389); f. When double jeopardy is clearly apparent (Sangalang vs. People and Alvendia, 109 Phil. 1140); g. Where the court has no jurisdiction over the offense (Lopez vs. City Judge, L-25795, October 29, 1966, 18 SCRA 616); h. Where it is a case of persecution rather than prosecution (Rustia vs. Ocampo, CA-G.R. No. 4760, March 25, 1960); i. Where the charges are manifestly false and motivated by the lust for vengeance (Recto vs. Castelo, 18 L.J. (1953), cited in Raoa vs. Alvendia, CA G.R. No. 30720-R, October 8, 1962; Cf. Guingona, et al. vs. City Fiscal, L-60033, April 4, 1984, 128 SCRA 577); j. Where there is clearly no prima facie case against the accused and a

motion to quash on that ground has been denied (Salonga vs. Pao, et al., L-59524, February 18, 1985, 134 SCRA 438); and k. Preliminary injunction has been issued by the Supreme Court to prevent the threatened unlawful arrest of petitioners (Rodriguez vs. Castelo, L-6374, August 1, 1953) cited in Regalado, Remedial Law Compendium, p. 188, 1988 Ed.) In this case, petitioners' objection to the arrest of the students cannot be construed as a violation of P.D. No. 1829, 1(c) without rendering it unconstitutional. Petitioners had a right to prevent the arrest of Taparan and Narag at the time because their attempted arrest was illegal. Indeed, they could not have interfered with the prosecution of the guilty parties because in fact petitioner Posadas had asked the NBI for assistance in investigating the death of Venturina. On the other hand, just because petitioners had asked for assistance from the NBI did not authorize respondent Dizon and his men to disregard constitutional requirements. The Office of the Ombudsman, however, found that the intervention by petitioners resulted in the escape of the student suspects as petitioner Posadas and Atty. Villamor failed in their undertaking to surrender the students the following day.14 Hence, the information against them charged that petitioners willfully obstructed the apprehension of the suspects Taparan and Narag, leading to the successful escape of these students and another principal suspect, a certain Joel Carlo Denosta.15 The student suspect mentioned by both the resolution dated May 18, 1995 and the information, a certain Joel Carlo Denosta, was not one of the students whose arrest by the NBI agents petitioners prevented on December 12, 1994. Moreover, whether or not petitioner Posadas surrendered the student suspects to the NBI agents the following day is immaterial. In the first place, they were not sureties or bondsmen who could be held to their undertaking. In the second place, the fact remains that the NBI agents could not have validly arrested Taparan and Narag at the U.P. Police Station as they did not have a warrant at that time. Hence, only the NBI agents themselves could be faulted for their inability to arrest Taparan and Narag. If the NBI believed the information given to them by the supposed eyewitnesses, the NBI should have applied for a warrant before making the attempted arrest instead of taking the law into their own hands. That they chose not to and were prevented from making an arrest for lack of a warrant is their responsibility alone. Petitioners could not be held accountable therefor. We understand that the highly publicized death of Dennis Venturina caused a public clamor to bring to justice those

(c) harboring or concealing, or facilitating the escape of, any person he knows, or has reasonable ground to believe or suspect, has committed any offense under existing penal laws in order to prevent his arrest, prosecution and conviction; The rule, of course, is that a criminal prosecution cannot be enjoined.11 But as has been held, "[i]nfinitely more important than conventional adherence to general rules of criminal procedure is respect for the citizen's right to be free not only from arbitrary arrest and punishment but also from unwarranted and vexatious prosecution."12 As we held in the similar case of Venus v. Desierto:13

responsible therefor. We also recognize the pressures faced by law enforcement agencies to effect immediate arrests and produce results without unnecessary delay. But it must be remembered that the need to enforce the law cannot be justified by sacrificing constitutional rights. The absence of probable cause for the filing of an information against petitioners is evident from the records. They cannot be indicted because they dared to uphold the rights of the students. Hence, we see no other recourse but to enjoin the Sandiganbayan and the Ombudsman from proceeding with the case against petitioners. Fourth. The conclusion we have thus far reached makes it unnecessary to consider petitioners' challenge to P.D. No. 1829, 1(c). For a cardinal rule of constitutional adjudication is that the Court will not pass upon a constitutional question although properly presented by the record if the case can be disposed of on some other ground such as the application of a statute or general law.16 WHEREFORE, the petition is GRANTED and the Ombudsman and his agents are hereby prohibited from prosecuting petitioners for violation of P.D. No. 1829 1(c) as a result of the incident complained of in Criminal Case No. 22801 and the Sandiganbayan is ORDERED to dismiss the information in Criminal Case No. 22801 against petitioners. SO ORDERED. G.R. No. 165276 November 25, 2009

The facts of the case, as alleged by petitioner and likewise adopted by the CA, are as follows: Petitioner [Judge Adoracion G. Angeles] was the foster mother of her fourteen (14) year-old grandniece Maria Mercedes Vistan who, in April 1990 was entrusted to the care of the former by the girls grandmother and petitioners sister Leonila Angeles Vda. de Vistan when the child was orphaned at the tender age of four. Petitioner provided the child with love and care, catered to her needs, sent her to a good school and attended to her general well-being for nine (9) memorable and happy years. The child also reciprocated the affections of her foster mother and wrote the latter letters. Petitioners love for the child extended to her siblings, particularly her half-brother respondent Michael Vistan, a former drug-addict, and the latters family who were regular beneficiaries of the undersigneds generosity. Michael would frequently run to the undersigned for his variety of needs ranging from day to day subsistence to the medical and hospital expenses of his children. In the evening of 11 April 1999, Michael Vistan had a falling out with petitioner for his failure to do a very important errand for which he was severely reprimanded over the phone. He was told that from then on, no assistance of any kind would be extended to him and that he was no longer welcome at petitioners residence. Feeling thwarted, he, in conspiracy with his co-horts (sic), retaliated on 12 April 1999 by inducing his half-sister, Maria Mercedes, to leave petitioners custody. Michael used to have free access to the undersigneds house and he took the girl away while petitioner was at her office. In the evening of that day, 12 April 1999, petitioner, accompanied by her friend Ines Francisco, sought Michael Vistan in his residence in Sta. Cruz, Guiguinto, Bulacan to confront him about the whereabouts of his half-sister. He disclosed that he brought the girl to the residence of her maternal relatives in Sta. Monica, Hagonoy, Bulacan. Petitioner then reported the matter and requested for the assistance of the 303rd Criminal Investigation and Detective Group Field Office in Malolos, Bulacan to locate the girl. Consequently, PO3 Paquito M. Guillermo and Ruben Fred Ramirez accompanied petitioner and her friend to Hagonoy, Bulacan where they coordinated with police officers from the said place. The group failed to find the girl. Instead, they were given the run-around as the spouses Ruben and Lourdes Tolentino and spouses Gabriel and Olympia Nazareno misled them with the false information that Maria Mercedes was

already brought by their brother Carmelito Guevarra and the latters wife Camilia to Casiguran, Quezon Province. On 13 April 1999, petitioner filed a complaint for Kidnapping under Article 271 of the Revised Penal Code (Inducing a Minor to Abandon His Home) against Michael Vistan, the Tolentino spouses, the Nazareno spouses and Guevarra spouses, all maternal relatives of Maria Mercedes Vistan. Warrants of arrest were subsequently issued against them and to evade the long arm of the law, Michael Vistan went into hiding. He dragged along with him his half-sister Maria Mercedes. From 12 April 1999 to 16 April 1999, Michael Vistan, with his little sister in tow, shuttled back and forth from Guiguinto to Hagonoy, Bulacan as well as in Manila and Quezon City, living the life of a fugitive from justice. He eventually brought the girl to ABS-CBN in Quezon City where he made her recite a concocted tale of child abuse against herein petitioner hoping that this would compel the latter to withdraw the kidnapping charge which she earlier filed. In the early morning of 16 April 1999, Michael Vistan brought Maria Mercedes to the DSWD after he felt himself cornered by the police dragnet laid for him. Prompted by his overwhelming desire to retaliate against petitioner and get himself off the hook from the kidnapping charge, Michael Vistan had deliberately, maliciously, selfishly and insensitively caused undue physical, emotional and psychological sufferings to Maria Mercedes Vistan, all of which were greatly prejudicial to her well-being and development. Thus, on 1 December 1999, petitioner filed a complaint against Michael Vistan before the Office of the Provincial Prosecutor in Malolos, Bulacan for five counts of Violation of Section 10 (a), Article VI of RA 7610, otherwise known as the Child Abuse Act, and for four counts of Violation of Sec. 1 (e) of PD 1829. She likewise filed a complaint for Libel against Maria Cristina Vistan, aunt of Michael and Maria Mercedes. In a Resolution dated March 3, 2000, Investigating Prosecutor Benjamin R. Caraig recommended upheld (sic) the charge of Violation of RA 7160 but recommended that only one Information be filed against Michael Vistan. The charge of Violation of PD 1829 was dismissed. Nonetheless, the Resolution to uphold the petitioners complaint against Maria Cristina Vistan must (sic) remained.

JUDGE ADORACION G. ANGELES, Petitioner, vs. HON. MANUEL B. GAITE, Acting Deputy Executive Secretary for Legal Affairs; HON. WALDO Q. FLORES, Senior Deputy Executive Secretary, Office of the President; Former DOJ SECRETARY HERNANDO B. PEREZ (now substituted by the Incumbent DOJ Secretary RAUL GONZALES); Former PROV. PROS. AMANDO C. VICENTE (now substituted by the Incumbent PROV. PROS. ALFREDO L. GERONIMO); PROS. BENJAMIN R. CARAIG, Malolos, Bulacan; and MICHAEL T. VISTAN, Respondents. DECISION PERALTA, J.: Before this Court is a Petition for Review,1 under Rule 43 of the 1997 Rules of Civil Procedure, assailing the February 13, 2004 Decision2 and September 16, 2004 Resolution3 of the Court of Appeals (CA) in CA-G.R. SP No. 76019.

However, Provincial Prosecutor Amando C. Vicente denied the recommendation of the Investigating Prosecutor that Michael Vistan be indicted for Violation RA 7610. He also approved the recommendation for the dismissal of the charge for Violation of PD 1829. On 14 April 2000, petitioner filed a Motion for Partial Reconsideration. This was denied in a Resolution dated 28 April 2000. Petitioner then filed a Petition for Review before the Department of Justice on 18 May 2000. She also filed a Supplement thereto on 19 May 2000. In a Resolution dated 5 April 2001, Undersecretary Manuel A.J. Teehankee, acting for the Secretary of Justice, denied the petition for review. The undersigneds Motion for Reconsideration filed on 25 April 2001 was likewise denied by then DOJ Secretary Hernando B. Perez in a Resolution dated 15 October 2001. On 26 November 2001, the undersigned filed a Petition for Review before the Office of President. The petition was dismissed and the motion for reconsideration was denied before said forum anchored on Memorandum Circular No. 58 which bars an appeal or a petition for review of decisions/orders/resolutions of the Secretary of Justice except those involving offenses punishable by reclusion perpetua or death.4 On March 18, 2003, petitioner filed a petition for review5 before the CA assailing the Order of the Office of President. Petitioner argued that the Office of the President erred in not addressing the merits of her petition by relying on Memorandum Circular No. 58, series of 1993. Petitioner assailed the constitutionality of the memorandum circular, specifically arguing that Memorandum Circular No. 58 is an invalid regulation because it diminishes the power of control of the President and bestows upon the Secretary of Justice, a subordinate officer, almost unfettered power.6 Moreover, petitioner contended that the Department of Justice (DOJ) erred in dismissing the complaint against respondent Michael Vistan for violations of Presidential Decree No. 18297 (PD No. 1829) and for violation of Republic Act No. 76108 (RA No. 7610).9 On February 13, 2004, the CA rendered a Decision, dismissing the petition, the dispositive portion of which reads: WHEREFORE, premises considered, the instant petition is hereby DISMISSED for lack of merit.10

The CA affirmed the position of the Solicitor General (OSG) to apply the doctrine of qualified political agency, to wit: When the President herself did not revoke the order issued by respondent Acting Deputy Executive Secretary for Legal Affairs nor saw the necessity to exempt petitioners case from the application of Memorandum Circular No. 58, the act of the latter is deemed to be an act of the President herself.11 Moreover, the CA ruled that the facts of the case as portrayed by petitioner do not warrant the filing of a separate 12 Information for violation of Section 1(e) of PD No. 1829. Lastly, the CA ruled that the DOJ did not err when it dismissed the complaint for violation for RA No. 7610 as the same was not attended by grave abuse of discretion. Petitioner filed a Motion for Reconsideration, which was, however, denied by the CA in a Resolution dated September 16, 2004. Hence, herein petition, with petitioner raising the following assignment of errors, to wit: 1. THE HONORABLE COURT OF APPEALS ERRED IN UPHOLDING THE RELIANCE OF THE OFFICE OF THE PRESIDENT IN THE PROVISIONS OF MEMORANDUM CIRCULAR NO. 58. 2. THE HONORABLE COURT OF APPEALS ERRED IN UPHOLDING THE DISMISSAL BY THE DOJ SECRETARY OF THE COMPLAINT OF VIOLATION OF SECTION 1(E). P.D. 1829 (OBSTRUCTION OF JUSTICE) AGAINST PRIVATE RESPONDENT MICHAEL VISTAN. 3. THE HONORABLE COURT OF APPEALS ERRED IN UPHOLDING THE DISMISSAL OF THE COMPLAINT OF VIOLATION OF R.A. 7610 (CHILD ABUSE) AGAINST PRIVATE RESPONDENT MICHAEL VISTAN.14 The petition is without merit. Petitioner's arguments have no leg to stand on. They are mere suppositions without any basis in law. Petitioner argues in the main that Memorandum Circular No. 58 is an invalid regulation, because it diminishes the power of control of the President and bestows upon the Secretary of Justice, a subordinate officer, almost unfettered power.15 This argument is absurd. The President's act of delegating authority to the Secretary of Justice by virtue of said Memorandum Circular is well within the purview of the doctrine of qualified political agency, long been established in our jurisdiction.
13

Under this doctrine, which primarily recognizes the establishment of a single executive, "all executive and administrative organizations are adjuncts of the Executive Department; the heads of the various executive departments are assistants and agents of the Chief Executive; and, except in cases where the Chief Executive is required by the Constitution or law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive, 16 presumptively the acts of the Chief Executive." The CA cannot be deemed to have committed any error in upholding the Office of the President's reliance on the Memorandum Circular as it merely interpreted and applied the law as it should be. As early as 1939, in Villena v. Secretary of Interior, this Court has recognized and adopted from American jurisprudence this doctrine of qualified political agency, to wit: x x x With reference to the Executive Department of the government, there is one purpose which is crystal-clear and is readily visible without the projection of judicial searchlight, and that is, the establishment of a single, not plural, Executive. The first section of Article VII of the Constitution, dealing with the Executive Department, begins with the enunciation of the principle that "The executive power shall be vested in a President of the Philippines." This means that the President of the Philippines is the Executive of the Government of the Philippines, and no other. The heads of the executive departments occupy political positions and hold office in an advisory capacity, and, in the language of Thomas Jefferson, "should be of the President's bosom confidence" (7 Writings, Ford ed., 498), and, in the language of AttorneyGeneral Cushing (7 Op., Attorney-General, 453), "are subject to the direction of the President." Without minimizing the importance of the heads of the various departments, their personality is in reality but the projection of that of the President. Stated otherwise, and as forcibly characterized by Chief Justice Taft of the Supreme Court of the United States, "each head of a department is, and must be, the President's alter ego in the matters of that department where the President is required by law to exercise authority" (Myers v. United States, 47 Sup. Ct. Rep., 21 at 30; 272 U.S., 52 at 133; 71 Law. ed., 160).18 Memorandum Circular No. 58,19 promulgated by the Office of the President on June 30, 1993 reads: In the interest of the speedy administration of justice, the guidelines enunciated in Memorandum Circular No. 1266 (4 November 1983) on the review by the Office of the President
17

of resolutions/orders/decisions issued by the Secretary of Justice concerning preliminary investigations of criminal cases are reiterated and clarified. No appeal from or petition for review of decisions/orders/resolutions of the Secretary of Justice on preliminary investigations of criminal cases shall be entertained by the Office of the President, except those involving offenses punishable by reclusion perpetua to death x x x. Henceforth, if an appeal or petition for review does not clearly fall within the jurisdiction of the Office of the President, as set forth in the immediately preceding paragraph, it shall be dismissed outright x x x. It is quite evident from the foregoing that the President himself set the limits of his power to review decisions/orders/resolutions of the Secretary of Justice in order to expedite the disposition of cases. Petitioner's argument that the Memorandum Circular unduly expands the power of the Secretary of Justice to the extent of rendering even the Chief Executive helpless to rectify whatever errors or abuses the former may commit in the exercise of his discretion20 is purely speculative to say the least. Petitioner cannot second- guess the President's power and the President's own judgment to delegate whatever it is he deems necessary to delegate in order to achieve proper and speedy administration of justice, especially that such delegation is upon a cabinet secretary his own alter ego. Nonetheless, the power of the President to delegate is not without limits. No less than the Constitution provides for restrictions. Justice Jose P. Laurel, in his ponencia in Villena, makes this clear: x x x Withal, at first blush, the argument of ratification may seem plausible under the circumstances, it should be observed that there are certain prerogative acts which, by their very nature, cannot be validated by subsequent approval or ratification by the President. There are certain constitutional powers and prerogatives of the Chief Executive of the Nation which must be exercised by him in person and no amount of approval or ratification will validate the exercise of any of those powers by any other person. Such, for instance, is his power to suspend the writ of habeas corpus and proclaim martial law (par. 3, sec. 11, Art. VII) and the exercise by him of the benign prerogative of mercy (par. 6, sec. 11, idem).21 These restrictions hold true to this day as they remain embodied in our fundamental law. There are certain presidential powers which arise out of exceptional

circumstances, and if exercised, would involve the suspension of fundamental freedoms, or at least call for the supersedence of executive prerogatives over those exercised by co-equal branches of government.22 The declaration of martial law, the suspension of the writ of habeas corpus, and the exercise of the pardoning power, notwithstanding the judicial determination of guilt of the accused, all fall within this special class that demands the exclusive exercise by the 23 President of the constitutionally vested power. The list is by no means exclusive, but there must be a showing that the executive power in question is of similar gravitas and 24 exceptional import. In the case at bar, the power of the President to review the Decision of the Secretary of Justice dealing with the preliminary investigation of cases cannot be considered as falling within the same exceptional class which cannot be delegated. Besides, the President has not fully abdicated his power of control as Memorandum Circular No. 58 allows an appeal if the imposable penalty is reclusion perpetua or higher. Certainly, it would be unreasonable to impose upon the President the task of reviewing all preliminary investigations decided by the Secretary of Justice. To do so will unduly hamper the other important duties of the President by having to scrutinize each and every decision of the Secretary of Justice notwithstanding the latters expertise in said matter. In Constantino, Jr. v. Cuisia,25 this Court discussed the predicament of imposing upon the President duties which ordinarily should be delegated to a cabinet member, to wit: The evident exigency of having the Secretary of Finance implement the decision of the President to execute the debtrelief contracts is made manifest by the fact that the process of establishing and executing a strategy for managing the governments debt is deep within the realm of the expertise of the Department of Finance, primed as it is to raise the required amount of funding, achieve its risk and cost objectives, and meet any other sovereign debt management goals. If, as petitioners would have it, the President were to personally exercise every aspect of the foreign borrowing power, he/she would have to pause from running the country long enough to focus on a welter of time-consuming detailed activitiesthe propriety of incurring/guaranteeing loans, studying and choosing among the many methods that may be taken toward this end, meeting countless times with creditor representatives to negotiate, obtaining the concurrence of the Monetary Board, explaining and defending the negotiated deal to the public, and more often than not, flying to the agreed place of execution to sign the documents. This sort of constitutional interpretation would negate the very existence of cabinet positions and the respective

expertise which the holders thereof are accorded and would unduly hamper the Presidents effectivity in 26 running the government. Based on the foregoing considerations, this Court cannot subscribe to petitioners position asking this Court to allow her to appeal to the Office of the President, notwithstanding that the crimes for which she charges respondent are not punishable by reclusion perpetua to death. It must be remembered that under the Administrative Code of 1987 (EO No. 292), the Department of Justice, under the leadership of the Secretary of Justice, is the governments principal law agency. As such, the Department serves as the governments prosecution arm and administers the governments criminal justice system by investigating crimes, prosecuting offenders and overseeing the correctional 27 system, which are deep within the realm of its expertise. These are known functions of the Department of Justice, which is under the executive branch and, thus, within the Chief Executive's power of control. Petitioners contention that Memorandum Circular No. 58 violates both the Constitution and Section 1, Chapter 1, Book III of EO No. 292, for depriving the President of his power of control over the executive departments deserves scant consideration. In the first place, Memorandum Circular No. 58 was promulgated by the Office of the President and it is settled that the acts of the secretaries of such departments, performed and promulgated in the regular course of business are, unless disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive.28 Memorandum Circular No. 58 has not been reprobated by the President; therefore, it goes without saying that the said Memorandum Circular has the approval of the President. Anent the second ground raised by petitioner, the same is without merit. Petitioner argues that the evasion of arrest constitutes a violation of Section 1(e) of PD No. 1829, the same is quoted hereunder as follows: (e) Delaying the prosecution of criminal case by obstructing the service of processes or court orders or disturbing proceedings in the fiscals' offices in Tanodbayan, or in the courts. x x x Specifically, petitioner contends that respondent's act of going underground obstructed the service of a court process, particularly the warrant of arrest.29

This Court does not agree. There is no jurisprudence that would support the stance taken by petitioner. Notwithstanding petitioner's vehement objection in the manner the CA had disposed of the said issue, this Court agrees with the same. The CA ruled that the position taken by petitioner was contrary to the spirit of the law on "obstruction of justice," in the wise: x x x It is a surprise to hear from petitioner who is a member of the bench to argue that unserved warrants are tantamount to another violation of the law re: "obstruction of justice." Petitioner is like saying that every accused in a criminal case is committing another offense of "obstruction of justice" if and when the warrant of arrest issued for the former offense/ charge is unserved during its life or returned unserved after its life and that the accused should be charged therewith re: "obstruction of justice." What if the warrant of arrest for the latter charge ("obstruction of justice") is again unserved during its life or returned unserved? To follow the line of thinking of petitioner, another or a second charge of "obstruction of justice" should be filed against the accused. And if the warrant of arrest issued on this second charge is not served, again, a third charge of "obstruction of justice" is warranted or should be filed against the accused. Thus, petitioner is effectively saying that the number of charges for "obstruction of justice" is counting and/or countless, unless and until the accused is either arrested or voluntarily surrendered. We, therefore, find the position taken by petitioner as contrary to the intent and spirit of the law on "obstruction of justice." x x x30 As correctly observed by the CA, the facts of the case, as portrayed by petitioner, do not warrant the filing of a separate information for violation of Section 1(e) of PD No. 1829. This Court agrees with the CA that based on the evidence presented by petitioner, the failure on the part of the arresting officer/s to arrest the person of the accused makes the latter a fugitive from justice and is not equivalent to a commission of another offense of obstruction of justice.31 Petitioner, however, vehemently argues that the law does not explicitly provide that it is applicable only to another person 32 and not to the offender himself. Petitioner thus contends that where the "law does not distinguish, we should not distinguish."33 Again, this Court does not agree. Petitioner conveniently forgets that it is a basic rule of statutory construction that penal statutes are to be liberally construed in favor of the accused.34 Courts must not bring cases within the provision of a law which are not clearly

embraced by it. No act can be pronounced criminal which is not clearly made so by statute; so, too, no person who is not clearly within the terms of a statute can be brought within them.35 Any reasonable doubt must be resolved in favor of 36 the accused. Indeed, if the law is not explicit that it is applicable only to another person and not the offender himself, this Court must resolve the same in favor of the accused. In any case, this Court agrees with the discussion of the CA, however sarcastic it may be, is nevertheless correct given the circumstances of the case at bar. Lastly, petitioner argues that the CA erred in upholding the dismissal of the complaint against respondent for violation of Section 10 (a), Article VI, of RA No. 7610. Said Section reads: Any person who shall commit any other act of child abuse, cruelty or exploitation or responsible for other conditions prejudicial to the child's development, including those covered by Article 59 of PD No. 603, as amended, but not covered by the Revised Penal Code, as amended, shall suffer the penalty of prision mayor in its minimum period. On this note, the Provincial Prosecutor in disapproving the recommendation of the Investigating Prosecutor to file the information for violation of Section 10(a), Article VI, of RA No. 7610, gave the following reasons: APPROVED for: (1) x x x (2) x x x The recommendation to file an information for viol. of Sec. 10 (a) RA # 7610 vs. M. Vistan is hereby denied. The affidavit of Ma. Mercedes Vistan, the minor involved, is to the effect that she found happiness and peace of mind away from the complainant and in the company of her relatives, including her brother, respondent Michael Vistan. How can her joining the brother be prejudicial to her with such statement?37 Said finding was affirmed by the Secretary of Justice. This Court is guided by First Women's Credit Corporation and 38 Shig Katamaya v. Hon. Hernando B. Perez et. al, where this Court emphasized the executive nature of preliminary investigations, to wit: x x x the determination of probable cause for the filing of an information in court is an executive function, one that properly pertains at the first instance to the public prosecutor and, ultimately, to the Secretary of Justice. For this reason, the Court considers it sound judicial policy to refrain from interfering in the conduct of preliminary investigations and to leave the Department of Justice ample latitude of discretion in

the determination of what constitutes sufficient evidence to establish probable cause for the prosecution of supposed offenders. Consistent with this policy, courts do not reverse the Secretary of Justices findings and conclusions on the matter of probable cause except in clear cases of grave abuse of discretion. Thus, petitioners will prevail only if they can show that the CA erred in not holding that public respondents resolutions were tainted with grave abuse of 39 discretion. 1avvphi1 Were the acts of the Provincial Prosecutor or the Secretary of Justice tainted with grave abuse of discretion? By grave abuse of discretion is meant such capricious and whimsical exercise of judgment which is equivalent to an excess or lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act not at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of 40 passion or hostility. Based on the foregoing, this Court finds that the provincial prosecutor and the Secretary of Justice did not act with grave abuse of discretion, as their conclusion of lack of probable cause was based on the affidavit of the alleged victim herself. The reasons for the cause of action were stated clearly and sufficiently. Was their reliance on the victim's affidavit constitutive of grave abuse of discretion? This Court does not think so. While petitioner would argue that the victim was "brainwashed" by respondent into executing the affidavit,41 this Court finds no conclusive proof thereof. Besides, even if their reliance on the victims affidavit may be wrong, it is elementary that not every erroneous conclusion of fact is an abuse of discretion.42 As such, this Court will not interfere with the said findings of the Provincial Prosecutor and the Secretary of Justice absent a clear showing of grave abuse of discretion. The determination of probable cause during a preliminary investigation is a function that belongs to the prosecutor and ultimately on the Secretary of Justice; it is an executive function, the correctness of the exercise of which is a matter that this Court will not pass upon absent a showing of grave abuse of discretion. WHEREFORE, premises considered, the February 13, 2004 Decision and September 16, 2004 Resolution of the Court of Appeals in CA-G.R. SP No. 76019 are hereby AFFIRMED. SO ORDERED.

[G.R. Nos. 136149-51. September 19, 2000] PEOPLE OF THE PHILIPPINES, appellee, vs. WALPAN LADJAALAM y MIHAJIL alias WARPAN, appellant. DECISION PANGANIBAN, J.: Republic Act No. 8294 penalizes simple illegal possession of firearms, provided that the person arrested committed no other crime. Furthermore, if the person is held liable for murder or homicide, illegal possession of firearms is an aggravating circumstance, but not a separate offense. Hence, where an accused was convicted of direct assault with multiple attempted homicide for firing an unlicensed M-14 rifle at several policemen who were about to serve a search warrant, he cannot be held guilty of the separate offense of illegal possession of firearms. Neither can such unlawful act be considered to have aggravated the direct assault.
The Case

That on or about September 24, 1997, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together, mutually aiding and assisting with one another, without any justifiable reason or purpose other than to use it in the commission of crime, did then and there, wilfully, unlawfully, and feloniously have in their possession and under their custody and control, the following weapons, to wit: one (1) M14 rifle with SN 1555225 with magazines and seven (7) rounds of live ammunition; two (2) magazines with twenty (20) and twenty[-one] (21) rounds of live [ammunition]; one (1) homemade caliber .38 revolver with five (5) live ammunition; one (1) M-79 (single) rifle with pouch and with five (5) empty shell[s]; one (1) home made caliber .38 with SN-311092 with five live ammunition and one empty shell of [a] cal. 38 x x x Smith and Wesson; two (2) .38 Caliber paltik revolver with Serial Number 311092 and one defaced M79 grenade launcher paltik, without first having obtained the necessary license and or permit therefor from authorities concerned, in flagrant violation of the aforementioned law.vii[7] The third Information,viii[8] for multiple attempted murder with direct assault, was worded thus: That on or about September 24, 1997, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused being then armed with M-14 Armalite Rifles, M-16 Armalite Rifles and other assorted firearms and explosives, conspiring and confederating together, mutually aiding and assisting x x x one another and with intent to kill, did then and there wilfully, unlawfully and feloniously try and attempt to kill SPO1 WILLIAM B. JONES, JR., PO3 ENRIQUE C. RIVERA[,] SPO1 AMADO A. MIRASOL, JR., and SPO1 RICARDO J. LACASTESANTOS, in the following manner, to wit: by then and there firing their M-14 x x x Armalite Rifles, M-16 Armalite Rifles and other assorted firearms and explosives, aimed and directed at the fatal parts of the bodies of the above-named police officers, well known to the accused as members of the Philippine National Police, Zamboanga City Police Office, and as such, agents of a person in authority, who at the time of the attack were engaged in the performance of their duties, that is, on the occasion when said officers were about to serve the Search Warrant legally issued by the Regional Trial Court, this City, to the person of the accused thus commencing the commission of crime of multiple murder directly by overt acts, and if the accused did not accomplish their unlawful purpose, that is, to kill the above-named Police Officers, it was not by reason of their own voluntary desistance but rather because of the fact that all the abovenamed police officers were able to seek cover during the firing and were not hit by the bullets and explosives fired by the accused and also by the fact said police officers were able to wrestle with two (2) of the accused namely: Walpan Ladjaalam y Mihajil a.k.a. Warpan and Ahmad Sailabbi y

Hajairani, who were subdued and subsequently placed under arrest; whereas accused PO2 Nurhakim T. Hadjula was able to make good his escape and has remained at-large.ix[9] In the fourth Information, appellant was charged with illegal possession of drugs.x[10] On December 21, 1997, the cases against Nur-in Ladjaalam and Ahmad Sailabbi y Hajaraini were dismissed upon motion of the Office of the City Prosecutor, which had conducted a reinvestigation of the cases as ordered by the lower court. The accused were consequently released from jail. The arraignment of appellant on all four (4) charges took place on January 6, 1998, during which he entered a plea of not guilty.xi[11] After pretrial, the assailed Decision was rendered, the dispositive part of which reads: WHEREFORE, the Court finds accused LADJAALAM y MIHAJIL a.k.a. WARPAN WALPAN

Walpan Ladjaalam y Mihajil, also known as Warpan, appeals before us the September 17, 1998 Decisioni[1] of the Regional Trial Court (RTC) of Zamboanga City (Branch 16), which found him guilty of three out of the four charges lodged against him. Filed against appellant were four Informations,ii[2] all signed by Assistant Regional State Prosecutor Ricardo G. Cabaron and dated September 25, 1997. The first Informationiii[3] was for maintaining a den for the use of regulated drugs. It reads as follows: That on or about September 24, 1997, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, Walpan Ladjaalam being then the owner of a residential house located at Rio Hondo,iv[4] this City, conspiring and confederating together, mutually aiding and assisting x x x his co-accused wife Nur-in Ladjaalam and Ahmad Sailabbi y Hajaraini, did then and there wilfully, unlawfully and feloniously, maintain said house as a den, where regulated drug [was] used in any form.v[5] The second Informationvi[6] charged appellant with illegal possession of firearms and ammunition. We quote it below:

1. in Criminal Case No. 14636, GUILTY BEYOND REASONABLE DOUBT of Violation of Section 15-A, Article III, of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended, and SENTENCES said accused to the penalty of RECLUSION PERPETUA and to pay a fine of FIVE HUNDRED THOUSAND (P500,000.00) and to pay the costs; 2. In Criminal Case No. 14637, NOT GUILTY of Violation of Section 16, Article III, in relation to Section 21, Article IV, of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended, and ACQUITS him of said crime with costs de oficio; 3. in Criminal Case No. 14638, GUILTY BEYOND REASONABLE DOUBT of the crime of Illegal Possession of Firearm and Ammunition penalized under Presidential Decree No. 1866, as amended by Republic Act. No. 8294, and SENTENCES said accused to suffer an indeterminate penalty of SIX (6) YEARS of prision correccional as minimum to EIGHT (8) YEARS of prision mayor as maximum and to pay a fine [of] THIRTY THOUSAND (P30,000.00) and pay the costs; 4. in Criminal Case No. 14639, GUILTY BEYOND REASONABLE DOUBT of the crime of Direct Assault with Multiple Attempted Homicide and SENTENCES said accused to an indeterminate penalty of TWO (2) YEARS and FOUR (4) MONTHS of prision correccional as minimum to SIX (6) YEARS of prision correccional as maximum and to pay a fine

of ONE THOUSAND (P1,000.00) and to pay the costs. (emphasis in the original) Hence, this appeal.xii[12]
The Facts Prosecutions Version

entered the door of the extension building. Gaganting opened the main (steel) gate of the house. The other members of the team then entered. Lacastesantos and Mirasol entered the house through the main door and went inside the sala of the ground floor while other policemen surrounded the house. Two (2) old women were in the sala together with a young girl and three (3) children. One of the old women took the children to the second floor while the young girl remained seated at the corner (Ibid., pp. 19-21). Lacastesantos and Mirasol proceeded to the second floor where they earlier saw appellant firing an M14 rifle at them through the window. While they were going upstairs, appellant noticed their presence. He went inside the bedroom and, after breaking and removing the jalousies, jumped from the window to the roof of a neighboring house. Seeing this, Mirasol rushed downstairs and asked help from the other members of the raiding team to arrest appellant. Lacastesantos went to the second floor and shouted to the policemen outside not to fire in the direction of the second floor because there were children. Mirasol and SPO1 Cesar Rabuya arrested appellant at the back of his house after a brief chase (Ibid., pp. 21-23). At the second floor, Lacastesantos saw an M14 rifle (Exh. B3) with magazine on top of the sofa at the sala on the second floor (Ibid., P. 27). The rifle bore Serial No. 1555225. He removed the magazine from the rifle and the bullet inside the chamber of the rifle. He counted seventeen (17) live ammunition inside the magazine. He saw two (2) more M14 rifle magazines on the sofa, one with twenty (20) live ammunition (Exh. G-3) and another with twenty-one (21) live ammunition (Exh. G-4). He likewise saw three (3) M16 rifle magazines (Exh. G-2) in a corner at the second floor (TSN, March 5, 1998, pp. 23-32, 53-57). After Lacastesantos and Mirasol entered appellants house, Rivera, Dela Pea, Gregorio and Obut followed and entered the house. After identifying themselves as members of the PNP Anti-Vice/Narcotics Unit, Obut presented to the old women a copy of the search warrant. Dela Pea and Rivera then searched appellants room on the ground floor in the presence of Punong Barangay Elhano (TSN, March 3, 1998, pp. 41-43). On top of a table was a pencil case (Exh. J) with fifty (50) folded aluminum foils inside (Exhs. J-1 to J-50), each containing methamphetamine hydrochloride or shabu. Other items were found during the search, namely, assorted coins in different denominations (Exh. W; TSN, April 28, 1998, pp. 23-25), one (1) homemade .38 caliber revolver (Exh. B-2) with five (5) live [ammunition], one (1) M79 single rifle with [a] pouch containing five (5) empty shells of an M79 rifle (Exh. B-4), and one (1) empty shell of an M14 rifle (TSN, April 23, 1998, pp. 30-32).

In its Brief,xiii[13] the Office of the Solicitor General presents the facts in this wise: At 1:45 p.m. of September 24, 1997, PO3 Allan Marcos Obut filed an application for the issuance of a search warrant against appellant, his wife and some John Does (Exh. C). After the search warrant was issued about 2:30 p.m. of the same day, a briefing was conducted inside the office of the Anti-Vice/Narcotics Unit of the Zamboanga City Police Office in connection with the service of the search warrant. The briefing was conducted by SPO2 Felipe Gaganting, Chief of the Anti-Vice/Narcotics Unit. During the briefing, PO3 Renato Dela Pea was assigned as presentor of the warrant. SPO1 Ricardo Lacastesantos and PO3 Enrique Rivera were designated to conduct the search. Other policemen were assigned as perimeter guards (TSN, March 3, 1998, pp. 3336). After the briefing, more than thirty (30) policemen headed by Police Superintendent Edwin Soledad proceeded to the house of appellant and his wife at Rio Hondo on board several police vehicles (TSN, March 4, 1998, p. 32; April 22, 1998, p. 54). Before they could reach appellants house, three (3) persons sitting at a nearby store ran towards the house shouting, [P]olice, raid, raid (Ibid., March 3, 1998, pp. 41, 43 44; April 23, 1998, p. 4). When the policemen were about ten (10) meters from the main gate of the house, they were met by a rapid burst of gunfire coming from the second floor of the house. There was also gunfire at the back of the house (Ibid., March 5, 1998, pp. 14-16). SPO1 Mirasol, SPO2 Lacastesantos, PO3 Rivera, and PO3 Dela Pea who were with the first group of policemen saw appellant fire an M14 rifle towards them. They all knew appellant. When they were fired upon, the group, together with SPO2 Gaganting, PO3 Obut and Superintendent Soledad, sought cover at the concrete fence to observe the movements at the second floor of the house while other policemen surrounded the house (Ibid., March 4, 1998, pp. 50-51). In front of the house was an extension building connected to the concrete fence (Ibid., pp. 45-46, 57-59, 73-76). Gaganting, Mirasol, Lacastesantos, Gregorio, and Obut

Rino Bartolome Locson was an informer of the AntiVice/Narcotics Unit of the Zamboanga Police. [O]n the morning of September 24, 1997, he was instructed by SPO2 Gaganting to go to appellants house to buy shabu. Locson knew appellant as a seller of shabu (TSN, April 22, 1998, p. 5) and had been to appellants house about fifteen (15) times before. He went to Rio Hondo and arrived at appellants house at 3:20 p.m. He bought P300.00 worth of shabu from appellant. The latter got three (3) decks of shabu from his waist bag. Appellant instructed Locson to go behind the curtain where there was a table. There were six (6) persons already smoking. There was a lighted kerosene lamp made of a medicine bottle placed on the table. They asked Locson to smoke shabu and Locson obliged. He placed the three (3) decks of shabu he bought on the table (Ibid., pp. 8-15). While they were smoking shabu, Locson heard gunfire coming from appellants house. They all stood and entered appellants compound but were instructed to pass [through] the other side. They met appellant at the back of his house. Appellant told them to escape because the police are already here. They scampered and ran away because there were already shots. Locson jumped over the fence and ran towards the seashore. Upon reaching a place near the Fisheries School, he took a tricycle and went home (Ibid., pp. 17-19). The following day, September 25, 1997, he went to the police station and executed an affidavit (Exh. M) narrating what transpired at appellants house [o]n the afternoon of September 24, 1997. After the search and before returning to the police station, P03 Dela Pea prepared a Receipt for Property Seized (Exh. P & 3) listing the properties seized during the search. The receipt was signed by Dela Pea as the seizure officer, and by Punong Barangay Hadji Hussin Elhano and radio reporter Jun Cayona as witnesses. A copy of the receipt was given to appellant but he refused to acknowledge the properties seized (TSN, April 23, 1998, pp. 11-12). An examination conducted by Police Inspector Mercedes D. Diestro, Forensic Chemist of the PNP Crime Laboratory Service Office 9, on the paraffin casts taken from both hands of appellant yielded positive for gunpowder nitrates (Exh. A3), giving rise to the possibility that appellant had fired a gun before the examination (TSN, March 3, 1998, p. 11). Gunpowder residue examinations conducted on September 26, 1997 showed that the following firearms were fired (Exh. B-5): a .38 caliber revolver (homemade) with Serial No. 311092 (Exh. B-1), another .38 caliber revolver (homemade) without a serial number (Exh. B-2), a Cal. 7.62 mm M14 U.S. rifle with Serial No. 1555225 (Exh. B-3), and an M79 rifle without a serial number (Exh. B-4). They were fired within five

(5) days prior to the examination (TSN, March 3, 1998, pp. 16-21). With respect to the crystalline substances, an examination conducted by Police Inspector Susan M. Cayabyab, likewise a Forensic Chemist of the PNP Crime Laboratory Service Office 9, on the fifty (50) pieces of folded aluminum foils each containing white crystalline granules with a total weight of 1.7426 grams (Exh. J-1 to J-50) yielded positive results for the presence of methamphetamine hydrochloride (shabu) (Exh. L). However, the examination of one (1) crystalline stone weighing 83.2674 grams (Exh. K) yielded negative results for the presence of methamphetamine hydrochloride (Exh. L). The records of the Regional Operation and Plans Division of the PNP Firearm and Explosive Section show that appellant had not applied/filed any application for license to possess firearm and ammunition or x x x been given authority to carry [a] firearm outside of his residence (Exh. X)xiv[14]
Defenses Version

fire[d] at us (tsn, p. 5, id.). If he fired a gun at the polic emen for sure they [would] die [b]ecause the door is very near x x x the vicinity of my house. He does not own the M14 rifle (Exh. B-3) which according to policemen, he used in firing at them. The gun does not belong to him. He does not have a gun like that (tsn, p. 15, id.). A policeman also owns an M14 rifle but he does not know the policeman (tsn, pp. 16-17, id). He said that the M79 rifle (Exh. B-4), the three (3) empty M16 rifle magazines (Exh. G; G-1 to G-2), the two (2) M14 magazines with live ammunition (Exh. G-3; G-4); the two (2) caliber .38 revolvers (Exhs. B-1; B-2), the fifty (50) aluminum foils each containing shabu (Exhs. J-1 to J-50) placed inside a pencil case (Exh. J, the assorted coins placed inside a blue bag (Exh. W) and the white crystalline stone (Exh. K) all do not belong to him. He said that the policemen just produced those things as their evidence. The firearms do not belong to him. They were brought by the policemen (tsn, p. 43, May 4, 1998). Regarding the blue bag containing assorted coins, he said: that is not ours, I think this (is) theirs, xxx they just brought that as their evidence (tsn, pp. 15-24, id.) Walpan Ladjaalam declared there were occupants who were renting his extension house. He affirmed that he owns that house. Four (4) persons were staying in the extension house. He could only recognize the husband whose name is Momoy. They are from Jolo. They left the place already because they were afraid when the police raided the place. (tsn, pp. 8-10, May 4, 1998). He does not know prosecution witness Rino Locson y Bartolome. Although Locson recognized him, in his case he does not know Locson and he does not recognize him (tsn, p.11, id). He did not sell anything to Locson and did not entertain him. He is not selling shabu but he knows for a fact that there are plenty of person who are engaged in selling shabu in that place, in that area known as Aplaya, Rio Hondo. One of them is Hadji Agbi (tsn, pp.11-14, id). After his arrest Walpan Ladjaalam was brought to the police station where he stayed for one day and one night before he was transferred to the City jail. While at the police station, he was not able to take a bath. He smokes two packs of cigarette a day. While he was at the police station, he smoked [a] cigarette given to him by his younger sister. He lighted the cigarettes with [a] match. From the police station, he was brought to the PNP Regional Office at R.T. Lim Boulevard where he was subject to paraffin examination (tsn, pp. 24-26, May 4, 1998). During the raid conducted on his house, his cousin Boy Ladjaalam, Ating Sapadi, and Jecar (Sikkal) Usman, the younger brother of his wife were killed. Walpan Ladjaalam said that he saw that it was the policeman who shot them[,] only I do not know his name. They were killed at the back of his house. He said that no charges were filed against the one responsible for their death (tsn, pp. 30-33- May 4, 1998).

Anilhawa Ahamad, more or less 80 years old, a widow was in the house of Walpan Ladjaalam whom he calls Hadji Id at the time the police raided the house. She is the mother of Ahma Sailabbi. She was together with Babo Dandan, two small children and a helper when soldiers entered the house. (W)hen they arrived, they kept on firing (their guns) even inside the house (tsn, p.5, May 5, 1998). They were armed with short and long firearms. They searched the house and scattered things and got what they wanted. They entered the room of Walpan Ladjaalam. They tried to open a bag containing jewelry. When Anilhawa tried to bring the bag outside the room, they grabbed the bag from her and poked a gun at her. At that time Walpan Ladjaalam was not in the house. Ahamad Sailabbi was also not in the house. A Search Warrant was shown to Anilhawa after the search was conducted and just before the policemen left the place. Anilhawa Ahamad said that it was already late in the afternoon[;] before they left that was the time the Search Warrant (was) given to us by xxx Barangay Captain Hussin Elhano (tsn, pp.6-8, May 5, 1998). Barangay Chairman Elhano arrived already late in the afternoon, almost sundown (tsn, p. 9, id). Anilhaw declared that aside from a bag containing jewelry and a bag full of money, she had not seen anything else that was taken from Walpan Ladjaalams house (tsn, pp. 9-12, id). Akmad (Ahmad) Sailabbi, 37 years old, married testified that about 4:00 oclock [o]n the afternoon of September 24, 1997, ha was standing in front of his house when policemen arrived and immediately arrested him. He was about to go to the City Proper to buy articles he was intending to bring to Sabah. He had around P50,000.00 placed inside a waist bag tied around his waist. The policemen told him to lie down in prone position and a policeman searched his back. They pulled his waist bag and took his DiaStar wrist watch. He was shot three times and was hit on the forehead leaving a scar. His injury was not treated. He was taken to the police station where he was detained for one day and one night. He was detained at the City Jail for three months and five days after which he was released (tsn, pp. 25-29, May 5, 1998). Melba Usma, 20 years old, a widow, testified that [o]n the afternoon of September 24, 1997, she was in the house of her parents lying together with her husband Sikkal Usma. There is only one house between her parents house and the house of Walpan Ladjaalam. Her husband Sikkal Usman is the brother of Nur-in Ladjaalam, Walpans wife. When Melba heard shots, she went downstairs. A policeman was looking for her husband. The policeman called her husband. When her husband went down, he was instructed by the policeman to lie down in prone position. Then the policeman shot her husband. The policeman had two other companions who also shot her husband while he was lying down in prone position (tsn, pp.2-7, May 5, 1998).

Appellant Ladjaalam agrees with the narration of facts given by the lower court.xv[15] Hence, we quote the pertinent parts of the assailed Decision: Accused Walpan Ladjaalam y Mihajil a.k.a. Warpan, 30 years old, married, gave his occupation as smuggling (tsn, p. 2, May 4, 1998). He used to go to Labuan in Malaysia and bring cigarettes to the Philippines without paying taxes (tsn, pp. 40-41, id). He said that his true name [was] Abdul Nasser Abdurakman and that Warpan or Walpan Ladjaalam [was] only his alias. However, he admitted that more people kn[e]w him as Walpan Ladjaalam rather than Abdul Nasser Abdurakman (tsn. pp. 39-40; 46-47, id). He testified that [o]n the afternoon of September 24, 1997, when he was arrested by the police, he was sleeping in the house of Dandao, a relative of his wife. He was alone. He slept in Dandaos house and not in his house because they ha[d] a sort of a conference as Dandaos daughter was leaving for Saudi Arabia. He noticed the presence of policemen in his neighborhood at Aplaya, Rio Hondo when he heard shots. He woke up and went out of the house and that was the time that he was arrested. He said he was arrested xxx [at] the other side of my house; at the other side of the fence where I was sleeping. xxx. At the back of my house (tsn, p. 7, id.). He does not know who arrested him considering that the one who arrested me does not have nameplate. He was arrested by four (4) persons. Not one of those who arrested him testified in Court. He was handcuffed and placed inside a jeep parked at Rio Hondo Elementary School. According to him, he did not fire a gun at the policemen from [t]he second floor of his house. He said the policemen [were] the one[s] who

Murkisa Usman, 30 years old, married, declared that [o]n the afternoon of September 24, 1997, she was sitting at the door of her house watching her children playing when a motorcyle, driven by a person, stopped near her house. The driver was Gaganting whom she called a soldier. He went down from his motorcycle, pulled a gun and poked it at Murkisa. Murkisa stood up and raised her hands. She got her children and when she was about to enter the room of her house, Gaganting again poked a gun at her and there was a shot. As a result of firing, three persons died, namely, Sikkal Usman, Boy Ladjaalam and Atip Sapali Sali (tsn, pp. 8-10, May 5, 1998). Barangay Captain Hadji Hussin Elhano, 51 years old, testified that about 4:00 o clock [o]n the afternoon of September 24, 1997, he was fetched by two policemen at Catabangan where he was attending a seminar. Because of traffic along the way, they arrived at the Rio Hondo already late in the afternoon. He saw policemen were already inside the house. Upon entering the gate, he saw Walpan at the gate already handcuffed. Walpan called him but the police advised him not to approach Walpan. The search was already over and things were already taken inside the house. When he went inside the house, he saw the things that they (policemen) searched, the firearms and the shabu (tsn, p. 17. May 8, 1998). He did not see the Search Warrant. What was shown to him were the things recovered during the search which were being listed. They were being counted and placed on a table. Upon seeing the things that were recovered during the search, I just signed the receipt (Exh. P; P -1) of the things x x x taken during the search (tsn, pp. 17-18. May 8, 1998). He saw three dead bodies at the side of the fence when he went to the other side of the house. The three persons were killed outside the fence of Walpan Ladjaalam (tsn, p. 18, id).xvi[16]
The Trial Courts Ruling

Section 3, Rule 126 of the [R]evised Rules of Court and is totally null and void.xix[19] (emphasis in the original) Nevertheless, the trial court deemed appellants arrest as valid. It emphasized that he had shot at the officers who were trying to serve the void search warrant. This fact was established by the testimonies of several police officers,xx[20] who were participants in the raid, and confirmed by the laboratory report on the paraffin tests conducted on the firearms and appellant.xxi[21] Additionally, the judge noted that Appellant Ladjaalam, based on his statements in his Counter Affidavit, impliedly contradicted his assertions in open court that there had been no exchange of gunfire during the raid.xxii[22] The trial court concluded that the testimonies of these officers must prevail over appellants narration that he was not in his house when the raid was conducted. Prescinding from this point, the court a quo validated the arrest of appellant, reasoning thus: Under the circumstances, the policemen had authority to pursue and arrest Walpan Ladjaalam and confiscate the firearm he used in shooting at the policemen and to enter his house to effect said arrest and confiscation of the firearm. Under Rule 113, Section 5 (a), of the Rules of Court, A peace officer or a private person may, without a warrant, arrest a person xxx (w)hen in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. An offense is committed in the presence or within the view of an officer, within the meaning of the rule authorizing an arrest without a warrant, when the officer sees the offense, although at a distance, or hears the disturbances created thereby and proceeds at once to the scene thereof. At the time the policemen entered the house of accused Walpan Ladjaalam after he had fired shots at the policemen who intended to serve the Search Warrant to him, the accused was engaged in the commission of a crime, and was pursued and arrested after he committed the crime of shooting at the policemen who were about to serve the Search Warrant.xxiii[23] As a consequence of the legal arrest, the seizure of the following was also deemed valid: the M14 rifle (with a magazine containing seventeen live ammunition)xxiv[24] used by appellant against the police elements, two M14 magazines, and three other M16 rifle magazines.xxv[25] The trial court observed that these items were in plain view of the pursuing police officers. Moreover, it added that these same items were evidence [of] the commission of a crime and/or contraband and therefore, subject to seizure xxvi[26] since appellant had not applied for a license to possess firearm and had not been given authority to carry firearm outside his residence.xxvii[27]

For being incredible and unsupported by evidence, appellants claim that the items that were seized by the police officers had been planted was disbelieved by the trial court. It ruled that if the police officers wanted to plant evidence to incriminate him, they could have done so during the previous raids or those conducted after his arrest. To its mind, it was unbelievable that they would choose to plant evidence, when they were accompanied by the barangay chairman and a radio reporter who might testify against them. It then dismissed these allegations, saying that frame-up, like alibi, was an inherently weak defense.xxviii[28] The trial court also convicted the accused of the crime of maintaining a drug den. It reasoned as follows: The testimony of Rino Bartolome Locson, corroborated by SPO1 Ricardo Lacastesantos and SPO1 Amado Mirasol, Jr. clearly established that Walpan Ladjaalam operated and maintained a drug den in his extension house where shabu or methamphetamine hydrochloride, a regulated drug, was sold, and where persons or customers bought and used shabu or methamphetamine hydrochloride by burning the said regulated drug and sniffing its smoke with the use of an aluminum foil tooter. A drug den is a lair or hideaway where prohibited or regulated drugs are used in any form or are found. Its existence [may be] proved not only by direct evidence but may also be established by proof of facts and circumstances, including evidence of the general reputation of the house, or its general reputation among police officers. The uncorroborated testimony of accused Walpan Ladjaalam a.k.a. Warpan that he did not maintain an extension house or a room where drug users who allegedly buy shabu from him inhales or smokes shabu cannot prevail over the testimonies of Locson, SPO1 Lacastesantos, and SPO1 Mirasol. He admitted that he is the owner of the extension house but he alleged that there were four (4) occupants who rented that extension house. He knew the name of only one of the four occupants who are allegedly from Jolo, a certain Momoy, the husband. Aside from being uncorroborated, Walpans testimony was not elaborated by evidence as to when or for how long was the extension house rented, the amount of rental paid, or by any other document showing that the extension house was in fact rented. The defense of denial put up by accused Walpan Ladjaalam a.k.a. 'Warpan is a weak defense. Denial is the weakest defense and cannot prevail over the positive and categorical testimonies of the prosecution witnesses. Denials, if unsubstantiated by clear and convincing evidence, are negative and self-serving evidence which deserve no weight in law and cannot be given evidentiary weight over the testimony of credible witnesses who testify on affirmative matters. As between the positive declaration of the prosecution witnesses and the negative statements of the accused, the former deserve more credence.xxix[29]

The trial court observed that the house of appellant was raided on September 24, 1997 by virtue of Search Warrant No. 20 issued on the same day. However, the lower court nullified the said Warrant because it had been issued for more than one specific offense,xvii[17] in violation of Section 3, Rule 126 of the Rules of Court.xviii[18] The court a quo ruled: It should be stated at the outset that Search Warrant No. 20 is totally null and void because it was issued for more than one specific offense x x x contrary to Section 3, Rule 1[2]6 of the Rules of Court which provides that A search warrant shall not issue but upon probable cause in connection with one specific offense xxx. In Tambasan vs. People, 246 SCRA 184 (1995), the Supreme Court ruled that a search warrant for more than one offense - a scatter shot warrant - violates

In conclusion, the trial court explained appellants liability in this manner: x x x. The act of the accused in firing an M14 rifle to the policemen who were about to enter his house to serve a search warrant constitutes the crime of direct assault with multiple attempted homicide[,] not multiple attempted murder with direct assault[,] considering that no policeman was hit and injured by the accused and no circumstance was proved to qualify the attempted killing to attempted murder. The accused Walpan Ladjaalam a.k.a. Warpan cannot be held liable [for] the crime of Violation of Section 16, Article III, in relation to Section 21, Article IV, of Republic Act 6425 otherwise known as the Dangerous Drugs Act of 1992, as amended, because the fifty (50) pieces of folded aluminum foils having a total weight of 1.7426 grams all containing methamphetamine hydrochloride or shabu allegedly found in his house are inadmissible as evidence against him considering that they were seized after [a] search conducted by virtue of Search Warrant No. 20 which is totally null and void as it was issued for more than one offense, and were not found in plain view of the police officers who seized them. Neither could the accused be held liable for illegal possession of firearms and ammunition except for the (1) M14 rifle with Serial Number 1555225 and with magazine containing fifteen (15) live ammunition and two more M14 rifle magazines with twenty (20) and twenty-one (21) live ammunition respectively considering that the policemen who recovered or seized the other firearms and ammunition did not testify in court. The blue bag containing assorted coins cannot be returned to the accused Walpan Ladjaalam a.k.a. Warpan because according to the accused the blue bag and assorted coins do not belong to him[;] instead the said assorted coins should be turned over to the National Treasury.xxx[30]
The Issues

of their duties [excluded] the claim of the appellant that the firearms and methamphetamine hydrochloride (i.e. shabu) were planted by the police.xxxi[31] In the interest of simplicity, we shall take up these issues seriatim: (a) denial of the request for ocular inspection, (b) credibility of the prosecution witnesses, and (c) the defense of frame-up. In addition, we shall also discuss the proper crimes and penalties to be imposed on appellant.
The Courts Ruling

The appeal has no merit.

First Issue: Denial of Request for Ocular Inspection

Appellant insists that the trial court erred in denying his request for an ocular inspection of the Ladjaalam residence. He argues that an ocular inspection would have afforded the lower court a better perspective and an idea with respect to the scene of the crime.xxxii[32] We do not agree. We fail to see the need for an ocular inspection in this case, especially in the light of the clear testimonies of the prosecution witnesses.xxxiii[33] We note in particular that the defense had even requested SPO1 Amado Mirasol Jr. to sketch the subject premises to give the lower court a fairly good idea of appellants house.xxxiv[34] Viewing the site of the raid would have only delayed the proceedings.xxxv[35] Moreover, the question whether to view the setting of a relevant event has long been recognized to be within the discretion of the trial judge.xxxvi[36] Here, there is no reason to disturb the exercise of that discretion.xxxvii[37]
Second Issue: Credibility of Prosecution Witnesses

In his Brief, appellant submits the following Assignment of Errors: I. The trial court erred when it concluded that appellant Walpan Ladjaalam y Mihajil [had] fired first at the police officers who went to his house to serve a search warrant upon him which led to an exchange of fire between Ladjaalam and the police officer. The trial court erred when it denied the appellant the right and opportunity for an ocular inspection of the scene of the firefight and where the house of the appellant [was] located. The trial court erred when it ruled that the presumption of regularity in the performance

II.

III.

Appellant, in essence, questions the credibility of the prosecution witnesses.xxxviii[38] Suffice it to state that the trial courts assessment of their credibility is generally accorded respect, even finality.xxxix[39] After carefully examining the records and finding no material inconsistencies to support appellants claim, we cannot exempt this case from the general rule.xl[40] Quite the contrary, the testimonies of these witnesses positively showed that appellant had fired upon the approaching police elements, and that he had subsequently attempted to escape. SPO1 Amado Mirasol Jr.xli[41] testified thus: PROSECUTOR NUVAL: Q: And, this trail is towards the front of the house of the accused?

A: Yes. Q: And its there where you were met by a volley of fire? A: Yes, Your Honor. COURT: Q: How far were you from the concrete fen[c]e when you were met by a volley of fire? ... You said you were fired upon? A: More or less, five (5) meters. xxx xxx xxx PROSECUTOR NUVAL: Q: Now, you said you were able to enter the house after the gate was opened by your colleague Felipe Gaganting ... I will reform that question. Q: Who opened the gate Mr. Witness? A: SPO2 Felipe Gaganting, Efren Gregorio and Allan Marcos Obut. Q: And, at that time you were hiding at the concrete fence? A: Yes. Q: Now, when this gate was opened, you said you went inside the house, right? A: Yes. Q: What did you see inside the house? A: I, together with SPO1 Ricardo Lacastesantos, entered the main door of the house of Walfran [sic] Ladjaalam at the ground floor. We went inside the sala on the ground floor of his house[;] I saw two old woman. xxx xxx xxx PROSECUTOR NUVAL: Q: Now, what did you do with these two old women? A: I did not mind those two old women because those two women were sitting on the ground floor. I was concentrating on the second floor because Ladjaalam was firing towards our group so, I, together with Ricardo Lacastesantos, went upstairs to the second floor of the house. Q: Were you able to go to the second floor of the house? A: Yes. Q: What happened when you were already on the second floor? A: While we were proceeding to the second floor, Walfan [sic] Ladjaalam, noticed our presence and immediately went inside the bedroom [o]n the second floor and he went immediately and jumped from the window of his house x x x leading to the roof of the neighbors house. xxx xxx xxx COURT: Reform. That is leading Q: What happened when you entered and he jumped to the roofing of the neighbors house? A: Immediately, I myself, we immediately went downstairs and asked the assistance of the members of the raiding team to arrest Walfan Ladjaalam. xxx xxx xxx PROSECUTOR NUVAL: Q: Were you able to go down?

A: Yes. Q: What happened when you were there? A: We immediately went out and I asked the assistance of the members of the raiding team and the investigator of the unit especially SPO1 Cesar Rabuya. I was able to manage to arrest Walfan Ladjaalam.xlii[42] What happened thereafter was narrated by Senior Police Officer Ricardo Lacastesantos,xliii[43] as follows: Q: What did you notice [o]n the second floor? A: I went where the firing came from, so, I saw [an] M14 rifle and I shouted from the outside, do not fire at the second floor because there [are] a lot of children here. Q: Now, that rifle you said [was an] M14, where did you find this? A: At the sala set. Q: This sala set where is this located? A: Located [on] the second floor of the house. Q: Is there a sala [o]n the second floor? A: Yes. Q: Can you still identify that M14 rifle which you said you recovered from the sale set? A: Yes. Q: Why can you identify that? A: The Serial No. of M14 is 1555225 and I marked it with my initial. Q: Now, I have here M14 rifle[;] will you please tell us where is the Serial No. of this? A: 1555225 and I put my initial, RJL. FISCAL NUVAL: This is already marked as our Exhibit B-3 with magazine, one magazine and seven round [ammunition]. Q: After recovering this, what did you do with this firearm? A: When I recovered it I removed the bullets inside the chamber[.] I removed the magazine and I turned it over to the investigator. Q: Where did you turn it over? A: At the crime scene. Q: Now, that magazine, can you still identify this? A: Yes. Q: Why? A: I put x x x markings. xxx xxx xxx COURT: So, a[si]de from the magazine attached to the M14 rifle you found six more magazines? A: Yes, so, all in all six magazines, three empty M16 rifle magazines and three M14. Q: The M16 magazines [were] empty? A: Empty. Q: How about the M14? A: Found with [ammunition]. xxx xxx xxx Q: So, where are the three M16 magazines? A: In the corner. Q: What did you do with [these] three magazines of M16? A: I turned [them] over to the investigator.

Q: Can you identify them? A: Yes, because of my initials[.] Q: Where are your initials? A: On the magazines. Q: RJL? A: RJL.xliv[44] These were confirmed by the results of the paraffin tests conducted on appellant and on the weapons seized during the raid. Both of his hands as well as the weapons, particularly the M-14 which he had used, were positive for gunpowder nitrate. Police Inspector Mercedes Delfin-Diestro explained in open court: Q: Okay. Now, what was the result of your examination, Madam Witness? A: The result of the examination [was] that both hands of the subject person, ha[d] presence of gun powder nitrates. Q: What do you mean Madam Witness, what does that indicate? A: It indicates there is presence of powder nitrates. Q: Can we conclude that he fired a gun? A: I cannot conclude that he fired a gun because there are so many circumstances [why] a person [would be] positive on his hands for gun powder nitrates. Q: But, most likely, he fired a gun? A: Yes. xxx xxx xxx PROSECUTOR NUVAL: Q: What about, Madam Witness this Exhibit B-3, which is the M14 rifle. What did you do with this? A: SPO3 Abu did the swabbing both in the chamber and the barrel wherein I observed there [were] black and traces of brown residue on the bolt, chamber and in the barrel. Q: And, that indicates Madam Witness...? A: It indicates that the gun was fired. Q: Recently? A: Because of the traces of brown residue, it could be possible that the gun was fired before the incident x x x. COURT: Q: There is also black residue? A: Yes. Q: What does it indicate? A: It indicates that the firearm was recently fired. Q: And, where is this swab used at the time of the swabbing of this Exhibit? A: This one. PROSECUTOR NUVAL: May we ask that this be marked as Exhibit B-3-A. COURT: Q: The firing there indicates that the gun was recently fired, during the incident? A: Yes. Q: And also before the incident it was fired because of the brown residue? A: Yes, Your Honor.xlv[45] (emphasis supplied)

Duly proven from the foregoing were the two elementsxlvi[46] of the crime of illegal possession of firearms. Undoubtedly, the established fact that appellant had fired an M-14 rifle upon the approaching police officers clearly showed the existence of the firearm or weapon and his possession thereof. Sufficing to satisfy the second element was the prosecutions Certificationxlvii[47] stating that he had not filed any application for license to possess a firearm, and that he had not been given authority to carry any outside his residence.xlviii[48] Further, it should be pointed out that his possession and use of an M-14 rifle were obviously unauthorized because this weapon could not be licensed in favor of, or carried by, a private individual.xlix[49]
Third Issue: Defense of Frame-up

From the convoluted arguments strewn before us by appellant, we gather that the main defense he raises is frameup. He claims that the items seized from his house were planted, and that the entire Zamboanga police force was out to get him at all cost. This Court has invariably held that the defense of frame-up is inherently weak, since it is easy to fabricate, but terribly difficult to disprove.l[50] Absent any showing of an improper motive on the part of the police officers,li[51] coupled with the presumption of regularity in the performance of their duty, such defense cannot be given much credence.lii[52] Indeed, after examining the records of this case, we conclude that appellant has failed to substantiate his claim. On the contrary, his statements in his Counter Affidavit are inconsistent with his testimony during the trial.liii[53] He testified thus: Q Now, Mr. Witness, do you remember having executed an Affidavit/ a Counter-Affidavit? A I could not remember. Q I have here a Counter-Affidavit and it was signed before this representation on the 8th day of December 1997[;] tell us whose signature is this appearing above the typewritten name FISCAL NUVAL: Q . . . . Walpan Ladjaalam, whose signature is this? (Showing) A Yes, Sir. This is mine. Q Now, in paragraph[s] 1,2,3,4,5,6,7 and 8; you stated in this Counter-Affidavit which I quote: that I was resting and sleeping when I heard the gunshots and I noticed that the shots were directed towards our house.. and I inspected and x x x we were attacked by armed persons.. and I was apprehended by the persons who attacked x x x our house; [the] house you are referring to [in] this paragraph, whose house [are you] referring to, is this [what] you are referring to [as] your house or the house of your neighbors [from] which you said you heard gunshots? A Our house.

Q Now, in paragraph 6 of your Counter-Affidavit you stated and I quote: that [o]n that afternoon of September 24, 1997, I was at home in my house Aplaya, Riohondo, Bo. Campo Muslim, my companions in my house [were] the two old women and my children, is this correct? A They were not there. Q Now, in that statement Mr. Witness, you said that you were at home in [your] house at Aplaya, Riohondo, Bo. Campo Muslim[;] which is which now, you were in your house or you were in your neighbors[] house at that time when you heard gunshots? A I was in the house near my house. Q So, your statement particularly paragraph 6 of your Counter-Affidavit that you were at home in [your] house at Aplaya Riohondo Bo. Campo Muslim, is x x x not correct? A Yes, Sir. This is not correct.liv[54]
Crime and Punishment

Aside from finding appellant guilty of direct assault with multiple attempted homicide, the trial court convicted him also of the separate offense of illegal possession of firearms under PD 1866, as amended by RA 8294, and sentenced him to 6 years of prision correccional to 8 years of prision mayor. The Office of the Solicitor General (OSG) disagrees, on the ground that the trial court should not have applied the new law. It contends that under the facts of the case, the applicable law should have been PD 1866, as worded prior to its amendment by RA 8294. The trial courts ruling and the OSGs submission exemplify the legal communitys difficulty in grappling with the changes brought about by RA 8294. Hence, before us now are opposing views on how to interpret Section 1 of the new law, which provides as follows: SECTION 1. Section 1 of Presidential Decree No. 1866, as amended, is hereby further amended to read as follows: Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. -- The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed. The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .30 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 centerfire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested. If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. If the violation of this Section is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection, sedition, or attempted coup detat, such violation shall be

absorbed as an element of the crime of rebellion or insurrection, sedition, or attempted coup detat. The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs or willfully or knowingly allow any of them to use unlicensed firearms or firearms without any legal authority to be carried outside of their residence in the course of their employment. The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor. Citing People v. Jayson,lix[59] the OSG argues that the foregoing provision does not cover the specific facts of this case. Since another crime -- direct assault with multiple unlawful homicide -- was committed, appellant cannot be convicted of simple illegal possession of firearms under the second paragraph of the aforecited provision. Furthermore, since there was no killing in this case, illegal possession cannot be deemed as an aggravating circumstance under the third paragraph of the provision. Based on these premises, the OSG concludes that the applicable law is not RA 8294, but PD 1866 which, as worded prior the new law, penalizes simple illegal possession of firearms even if another crime is committed at the same time.lx[60] Applying a different interpretation, the trial court posits that appellant should be convicted of illegal possession of firearms, in addition to direct assault with multiple attempted homicide. It did not explain its ruling, however. Considering that it could not have been ignorant of the provisolxi[61] in the second paragraph, it seemed to have construed no other crime as referring only to homicide and murder, in both of which illegal possession of firearms is an aggravating circumstance. In other words, if a crime other than murder or homicide is committed, a person may still be convicted of illegal possession of firearms. In this case, the other crime committed was direct assault with multiple attempted homicide; hence, the trial court found appellant guilty of illegal possession of firearms. We cannot accept either of these interpretations because they ignore the plain language of the statute. A simple reading thereof shows that if an unlicensed firearm is used in the commission of any crime, there can be no separate offense of simple illegal possession of firearms. Hence, if the other crime is murder or homicide, illegal possession of firearms becomes merely an aggravating circumstance, not a

The trial court convicted appellant of three crimes: (1) maintenance of a drug den, (2) direct assault with attempted homicide, and (3) illegal possession of firearms. We will discuss each of these.
Maintenance of a Drug Den

We agree with the trial court that appellant was guilty of maintenance of a drug den, an offense for which he was correctly sentenced to reclusion perpetua. His guilt was clearly established by the testimony of Prosecution Witness Rino Bartolome Locson, who himself had used the extension house of appellant as a drug den on several occasions, including the time of the raid. The formers testimony was corroborated by all the raiding police officers who testified before the court. That appellant did not deny ownership of the house and its extension lent credence to the prosecutions story.
Direct Assault with Multiple Attempted Homicide

The trial court was also correct in convicting appellant of direct assaultlv[55] with multiple counts of attempted homicide. It found that [t]he act of the accused [of] firing an M14 rifle [at] the policemen[,] who were about to enter his house to serve a search warrant x x x constituted such complex crime.lvi[56] We note that direct assault with the use of a weapon carries the penalty of prision correccional in its medium and maximum periods, while attempted homicide carries the penalty of prision correccional.lvii[57] Hence, for the present complex crime, the penalty for direct assault, which constitutes the most serious crime, should be imposed and applied in its maximum period.lviii[58]
Illegal Possession of Firearms

separate offense. Since direct assault with multiple attempted homicide was committed in this case, appellant can no longer be held liable for illegal possession of firearms. Moreover, penal laws are construed liberally in favor of the accused.lxii[62] In this case, the plain meaning of RA 8294s simple language is most favorable to herein appellant. Verily, no other interpretation is justified, for the language of the new law demonstrates the legislative intent to favor the accused.lxiii[63] Accordingly, appellant cannot be convicted of two separate offenses of illegal possession of firearms and direct assault with attempted homicide. Moreover, since the crime committed was direct assault and not homicide or murder, illegal possession of firearms cannot be deemed an aggravating circumstance. We reject the OSGs contention that PD 1866, as worded prior to its amendment by RA 8294, should be applied in this case. When the crime was committed on September 24, 1997, the original language of PD 1866 had already been expressly superseded by RA 8294 which took effect on July 6, 1997.lxiv[64] In other words, no longer in existence was the earlier provision of PD 1866, which justified a conviction for illegal possession of firearms separate from any other crime. It was replaced by RA 8294 which, among other amendments to PD 1866, contained the specific proviso that no other crime was committed. Furthermore, the OSGs reliance on People v. Jaysonlxv[65] is misplaced. True, this Court sustained the conviction of appellant for illegal possession of firearms, although he had also committed homicide. We explained, however, that the criminal case for homicide [was] not before us for consideration. Just as unacceptable is the interpretation of the trial court. We find no justification for limiting the proviso in the second paragraph to murder and homicide. The law is clear: the accused can be convicted of simple illegal possession of firearms, provided that no other crime was committed by the person arrested. If the intention of the law in the second paragraph were to refer only to homicide and murder, it should have expressly said so, as it did in the third paragraph. Verily, where the law does not distinguish, neither should we. The Court is aware that this ruling effectively exonerates appellant of illegal possession of an M-14 rifle, an offense which normally carries a penalty heavier than that for direct assault. While the penalty for the first is prision mayor, for the second it is only prision correccional. Indeed, the accused may evade conviction for illegal possession of firearms by using such weapons in committing an even lighter offense,lxvi[66] like alarm and scandallxvii[67] or slight physical injuries,lxviii[68] both of which are punishable by

arresto menor.lxix[69] This consequence, however, necessarily arises from the language of RA 8294, whose wisdom is not subject to the Courts review. Any perception that the result reached here appears unwise should be addressed to Congress. Indeed, the Court has no discretion to give statutes a new meaning detached from the manifest intendment and language of the legislature. Our task is constitutionally confined only to applying the law and jurisprudencelxx[70] to the proven facts, and we have done so in this case. WHEREFORE, the appealed Decision is hereby AFFIRMED with the MODIFICATION that appellant is found guilty only of two offenses: (1) direct assault and multiple attempted homicide with the use of a weapon, for which he is sentenced to 2 years and 4 months to 6 years of prision correccional; and (2) maintaining a drug den, for which he was correctly sentenced by the trial court to reclusion perpetua. Costs against appellant. Let a copy of this Decision be furnished the Congress of the Philippines for a possible review, at its sound discretion, of RA 8294. SO ORDERED. G.R. Nos. 146107-09 : December 11, 2003] PEOPLE OF THE PHILIPPINES, appellee, vs. ROLANDO ALMEIDA y CALVIN @ TATA ROLLY, Appellant. DECISION AZCUNA, J.: On August 13, 1999, three separate informations were filed against appellant Rolando Almeida y Calvin @ Tata Rolly, before the Regional Trial Court of San Pedro, Laguna,1 as follows: Criminal Case No. 1233

That on or about July 1, 1999, in the Municipality of San Pedro, Province of Laguna, Philippines and within the jurisdiction of this Honorable Court, said accused without being authorized by law, did then and there willfully, unlawfully and feloniously have in his possession custody and control one (1) transparent plastic bag of methamphetamine hydrochloride shabu weighing 200.203 grams. Criminal Case No. 1234-SPL That on or about July 1, 1999, in the Municipality of San Pedro, Province of Laguna, Philippines and within the jurisdiction of this Honorable Court, said accused, without first securing license/permit from the proper authority did then and there willfully, unlawfully and feloniously have in his possession, custody and control the following items. (1) ammunitions for .38 caliber gun (8 pieces) (2) ammunitions for .45 caliber gun (3 pieces) (3) ammunitions for .38 caliber gun (3 pieces) (4) ammunitions for .22 caliber gun (5 pieces) Criminal Case No. 1235-SPL That on or about July 1, 1999, in the Municipality of San Pedro, Province of Laguna, Philippines and within the jurisdiction of this Honorable Court, the said accused without any lawful authority, did then and there willfully, unlawfully and feloniously sell, pass and deliver to a poseur-buyer in exchange for P4,500.00 bills methamphetamine hydrochloride shabu in one (1) heat-sealed transparent plastic bag weighing 4.810 grams. The Prosecutions Evidence SPO4 Carlito Candelaria (Carlito)[2 is a member of the San Pedro Police Station Intelligence Unit. On July 1, 1999, at about 10:50 p.m., he and four other policemen, SPO4 Teofilo Royena (Teofilo), PO3 Ricardo Umayan (Ricardo), PO3 Victor Vivero (Vivero) and SPO4 Bonifacio Deroca (Deroca) were in Pulong Kendi, San Pedro, Laguna to conduct a buybust operation against appellant, who was reportedly peddling shabu. Accompanying them was a civilian asset who was to act as the poseur-buyer and was given P4,500 for that purpose.

The alleged sale transpired outside the house of Vanessa Padua (Vanessa), by the steel gate of the house. Vanessa was reportedly appellants live-in partner. From a distance of 4 meters, Carlito claimed to have seen the exchange of the shabu and money between appellant and the civilian asset. Upon seeing the consummation of the sale, he and the civilian asset executed their respective prearranged signals, which were for Carlito to put his hand inside his back pocket and the civilian asset to scratch his back. Police officers Teofilo, Ricardo, Vivero and Deroca then arrived and stealthily rushed into the house as appellant had already entered the house and went upstairs. Carlito stayed by the steel gate to make sure that no one leaves or escapes. After the lapse of about 25 minutes, the police returned and brought out a stainless steel canister, some cash, a plastic bag containing shabu and ammunitions for .38, .45 and .22 caliber firearms. Inside the canister were more cash and shabu, a weighing scale, a brown envelope and some unused plastic ice bags. Teofilo,3 Chief of the Intelligence Section/Unit, testified that he received information that appellant, who was already arrested twice for drug pushing, had again resumed his operations. Thus, Teofilo decided to form a buy-bust team, composed of himself, Ricardo, Vivero, Deroca and Carlito, to entrap appellant. He also utilized the services of a civilian asset to act as the poseur-buyer. On July 1, 1999, at around 10:50 p.m. the buy-bust team went to the house of Vanessa, where appellant was reportedly staying. The civilian asset and Carlito went to the front of the house, while Ricardo, Vivero, Deroca took their positions some 7 meters away from them. The civilian asset then called to appellant who promptly came out. Thereafter, from his position, Teofilo witnessed the civilian asset and appellant engage in a brief conversation and then subsequently exchange shabu and money. Immediately after the sale took place, appellant went inside and proceeded to the second floor of the house. Thereafter, Teofilo and the other policemen approached Carlito and the civilian asset. Teofilo first took from the civilian asset the shabu received from appellant before he and Ricardo went inside the house.

Upon reaching the second floor, Teofilo saw appellant repacking shabu while seated on the floor. The police also found another person, who was later identified as Gilbert Chico (Gilbert), sniffing shabu. Vanessa was also there. On the second floor, the police found 34 small plastic sachets containing shabu, one big plastic bag containing more shabu, a canister, several ammunitions of different calibers, cash worth P2,800 in different denominations and 3 plastic bags containing shabu residue. The police also recovered the P4,500 bills used in the buy-bust operation. Appellant was then arrested and brought to the police station. Lorna Tria (Tria), Philippine National Police forensic chemical officer, testified that she received a request for a laboratory examination on 157.332 grams of white crystalline substance contained in 34 heat-sealed transparent sachets, 42.871 grams of white crystalline substance contained in one plastic bag and three plastic bags containing traces of white crystalline substance. She also received a second request for a laboratory examination of one heat-sealed transparent plastic bag with white crystalline substance weighing 4.810 grams. After conducting the necessary tests, all the substances came out positive for methamphetamine hydrochloride. Ricardo,5 testified that prior to the alleged buy-bust, he already knew appellant whom they arrested twice in September and October 1998 for violation of the Dangerous Drugs Law. Having received information that appellant was again engaged in the sale of shabu, he, Teofilo, Carlito, Deroca, Vivero and a civilian asset, went to Barangay Cuyab on July 1, 1999 to conduct a buy-bust operation against appellant. Upon reaching Barangay Cuyab, Carlito and the civilian asset separated from the group and went to the front of the house where appellant was staying. The rest of the team members positioned themselves some 7 meters away. Ricardo claimed he saw the civilian asset hand money over to appellant who,
4

in turn, gave a plastic sachet. Ricardo then saw Carlito execute the prearranged signal and the team moved towards Carlito and the civilian asset. The police failed to apprehend appellant who, after the transaction, immediately went inside the house and ascended to the second floor. Ricardo, Teofilo, Vivero and Deroca entered the house and followed appellant upstairs where they found him sitting on the floor. Beside appellant were plastic sachets packed with shabu, and a canister storing different kinds of ammunition, money, plastic bag containing shabu and a spoon, weighing scale and several unused plastic sachets. Also in the room were Gilbert, sniffing shabu, and Vanessa. Vanessa would later telephone a certain lawyer who spoke to Ricardo. The police collected the items on the floor and brought appellant and Gilbert to the police station. The Defenses Evidence Appellant[6 testified that in the evening of July 1, 1999, he was visiting his girlfriend, Vanessa, at her house on 34 V. Veragra St., Cuyab, San Pedro, Laguna. Also with them was Gilbert. All three were on the second floor when they heard a loud sound coming from downstairs. As Vanessa was going down to have a look, she was met by two armed men in civilian attire. The men were later identified as policemen Teofilo and Ricardo. Immediately, Vanessa confronted Teofilo and Ricardo, and asked them what they wanted. The police ignored her and began to search the premises. Vanessas father, Cesar Padua (Cesar), who was just downstairs, went up and demanded that the police leave. The policemen, nevertheless, continued their search. Eventually, the policemen got hold of a foot-long brown paper bag and a stainless steel box from a cabinet. Appellant saw that Cesar attempted to get back the envelope, however Ricardo pointed a gun at him. Appellant, Vanessa and Gilbert were then brought to the police station. Vanessa7 declared that on July 1, 1999, at 10:50 p.m., she was in her house at the second floor, talking to appellant and

Gilbert, while her parents were downstairs watching television. Everything was normal until she heard a loud sound coming from their iron gate. This prompted her to go down to have a look. As she was about to go down, she was met by Teofilo and Ricardo who were wearing caps and armed with guns. Teofilo and Ricardo introduced themselves as police officers and began to search the area. Vanessa asked to see a search warrant but the police failed to produce any. When her father, Cesar, went up and protested their search, Ricardo poked a gun at him. Vanessa then called her lawyer, Atty. Macapagal, through the telephone. Atty. Macapagal was able to talk to Ricardo but nothing came out of it. Teofilo and Ricardo confiscated a brown paper bag containing her fathers money in the amount of P130,000 and a stainless steel box from her cabinet. Vanessa, appellant and Gilbert were then brought to the police station. There, appellant and Gilbert were detained while Vanessa was released. Cesar Padua[8 testified that he is the father of Vanessa and he knows appellant to be his daughters suitor. On July 1, 1999, at 10:30 p.m. he was in his house watching television with his wife in the sala at the ground floor when he heard Vanessa talking loudly upstairs. He went up to see what was happening and saw Teofilo and Ricardo searching the area. He demanded that a search warrant be produced but none was shown to him. During the search, the police took a brown paper bag containing P130,000 and a stainless steel box. When he protested, the police poked their guns at him. Vanessa, appellant and Gilbert were then brought to the police station. As a consequence of the illegal search and the taking of his money, Cesar filed complaints against Teofilo and Ricardo before the National Police Commission and the Office of the Ombudsman. He also denied that there was shabu inside his house and that appellant was a live-in partner of his daughter. On rebuttal, Teofilo[9 testified that he does not know Cesar Padua nor was the latter present when his group conducted

the buy-bust operation. He also denied having taken P130,000 from Vanessas room. After considering all the evidence presented, the trial court found appellant guilty of all three charges under a decision 10 that has the following dispositive portion: IN VIEW THEREOF, the court finds that the prosecution has duly established the guilt of accused beyond reasonable doubt of the crimes of a Violation of a) Section 16, Article III of RA 6425, as amended, in Criminal Case No. 1233, b) PD 1866, as amended, in Criminal Case No. 123[4], and c) Section 15, Article III of RA 6425, as amended, in Criminal Case No. 1235 without having been permitted by law. WHEREFORE judgment is hereby rendered sentencing accused Rolando Almeida y Calvin @ Tata Rolly as follows: In Criminal Case No. 1233 1. to suffer the penalty of reclusion perpetua; 2. pay a fine of P500,000; and 3. to pay costs of suit. In Criminal Case No. 1234 1. to suffer an indeterminate penalty of imprisonment of from four (4) years, two (2) months and one (1) day of prision correctional as minimum to six (6) years of prision correctional as maximum; and 2. to pay costs of suit. In Criminal Case No. 1235 1. to suffer an indeterminate penalty of imprisonment of from six (6) months of arresto mayor as minimum to four (4) years of prision correctional as maximum; and 2. to pay costs of suit. The Courts Ruling The Court will first review appellants conviction for the illegal sale of dangerous drugs. In all prosecutions for illegal sale of dangerous drugs, the following elements must first be established: 1) proof that the transaction or sale took place; and 2) the presentation in court of the corpus delicti or the illicit drug as evidence.11 A review

of the records of the case reveals the absence of the second element as the prosecution failed convincingly to prove that the shabu that was marked and presented in court is the very same item that was taken from the poseur-buyer. The identification of the buy-bust drug was made by Ricardo, who provided the following testimony:12 q. How about the items that w[ere] supposed to be the result of the buy-bust? a. It was marked RA-B, sir. q. What does B represent? a. Buy-bust, sir. xxxxxx q. Which among the plastic sachet[s] was marked as B? a. It is not here, sir. q. Not all those [items were] laid in the table. Im extracting a document inside the bigger plastic bag and this document consists of a Chemistry Report marked as Exhibit J, request for laboratory examination and another Chemistry Report. Attached to Exhibit J is a plastic sachet containing white crystalline substance, among the items which are now laid on the table. Which is now the item marked as letter B? a. This one, sir (pointed to a plastic sachet attached to Exhibit J and marked as Exhibit J-1). Atty. Sarmiento: May I make it of record that the exhibit was put in front of the witness before he testified. Apparently, Ricardo never actually identified the shabu that was taken during the buy-bust operation. He merely declared that the drug was supposed to be marked as RA-B and then pointed to an exhibit bearing that marking. He never explicitly declared that the item marked RA-B contained the shabu bought from appellant. In any event, it must be noted that Ricardo is incompetent to identify the shabu sold as he was never in possession of it. Aside from the poseur-buyer, the only other person who could have identified the drug is Teofilo as it was allegedly turned over to him. However, Teofilo did not identify the shabu but merely stated that he personally took the shabu from the

poseur-buyer right after the exchange. The records are silent as to what he did with the drug thereafter. Teofilos failure to testify on what he did with the shabu resulted in a break in the chain of custody of the drug. There is a missing link from the point when the drug was in the hands of Teofilo to the point when the same was placed in the custody of SPO1 dela Pena, the investigator who did the markings. The prosecution needs to establish that Teofilo gave the drug to dela Pena and informed the latter that such particular drug was sold by appellant and that it was marked accordingly. Without such proof, the marking of RA-B testified upon by Ricardo is rendered meaningless. The existence of the dangerous drug is a condition sine qua non for conviction for the illegal sale of dangerous drugs, it 14 being the very corpus delicti of the crime. Failure to establish the chain of custody cannot but inure to the detriment of the prosecutions case.15 As for the charge of illegal possession of dangerous drugs, the Court sustains appellants conviction. The defense claims that the shabu was not seized or confiscated from the body of the appellant. The records, however, show that when the police reached the second floor of the house, appellant was caught in flagrante delicto as he was in the midst of repacking the shabu. It was not necessary for the prosecution to prove that appellant was in actual possession of all the 200.203 grams of shabu. In criminal law, possession necessary for conviction of the offense of possession of dangerous drugs may be

13

constructive as well as actual. It is only necessary that the accused must have dominion and control over the 16 contraband. In this case, appellants dominion and control over the drugs found on the second floor is established by the fact that he was the person who was handling said items. Appellant nevertheless claims that the items found on the second floor were products of an illegal search. Suffice it to say that the items were found while the police were in the process of arresting appellant and these confiscated items were just lying on the floor, in plain view of the arresting 17 officers. The Court, however, cannot sustain appellants conviction for illegal possession of ammunition. The ammunition was not found in the person of appellant. They were among the items seen lying on the floor and Vanessa and Gilbert were in that same room with appellant. Clearly, the evidence is insufficient to establish that said ammunition belongs to appellant as it could have belonged to the other two persons. Furthermore, in any event, the Court has ruled in previous cases that in view of the enactment of Republic Act No. 8294, there can be no separate offense of illegal possession of firearms and ammunition if there is another crime committed such as, in this case, that of illegal possession of dangerous drugs.18 Appellant should, therefore, be acquitted of the charges of illegal sale of dangerous drugs and illegal possession of ammunition, but his conviction for illegal possession of dangerous drugs should be sustained.

WHEREFORE, the assailed decision of the Regional Trial Court of San Pedro, Laguna, Branch 31, in Criminal Cases Nos. 1234-SPL and 1235-SPL, is hereby REVERSED and SET ASIDE and appellant, Rolando Almeida y Calvin @ Tata Rolly, is ACQUITTED of the charges thereunder. His conviction in Criminal Case No. 1233, however, is hereby AFFIRMED. Costs de oficio. SO ORDERED.

G.R. No. 142675. July 22, 2005 VICENTE AGOTE Y MATOL, Petitioner, vs. HON. MANUEL F. LORENZO, Presiding Judge, RTC, Branch 43, Manila and PEOPLE OF THE PHILIPPINES, Respondents. DECISION GARCIA, J.: In this appeal by way of a petition for review on certiorari under Rule 45 of the Rules of Court, petitioner Vicente Agote y Matol seeks to annul and set aside the following resolutions of the Court of Appeals in CA-G.R. SP No. 2991-UDK, to wit: 1. Resolution dated September 14, 1999, [1] dismissing the Petition for Certiorari with Prayer for the Issuance of a Temporary Restraining Order filed by the petitioner against the Honorable Manuel F. Lorenzo, Presiding Judge, Regional Trial Court, Manila, Branch 43 for refusing to retroactively apply in his favor Republic Act No. 8294[2]; and, 2. Resolution dated February 8, 2000, [3] denying petitioner's motion for reconsideration. As culled from the pleadings on record, the following are the undisputed factual antecedents: Petitioner Vicente Agote y Matol was earlier charged before the sala of respondent judge with Illegal Possession of Firearms under Presidential Decree No. 1866[4] and violation of COMELEC Resolution No. 2826[5] (Gun Ban), docketed as Criminal Cases No. 96-149820 and 96-149821, respectively, allegedly committed, as follows: CRIMINAL CASE NO. 96-149820

That on or about April 27, 1996 in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully, knowingly have in possession and under his custody and control, One (1) .38 cal. Rev. without serial no. with four (4) live bullets. Without first having secured from the proper authorities the necessary license therefor. CONTRARY TO LAW. CRIMINAL CASE NO. 96-149821 That on or about April 27, 1996, in the City of Manila, Philippines, the said accused did then and there, willfully, unlawfully and knowingly have in his possession and under his custody and control one (1) .38 cal. Rev. without serial number, with four (4) live ammunition/bullets in the chamber, by then and there carrying the same along V. Mapa Ext. Sta. Mesa, this City, which is a public place on the aforesaid date which is covered by an election period, without first securing the written authority from the COMELEC, as provided for by the COMELEC Resolution No. 2828, in relation to RA No. 7166 (Gun Ban). CONTRARY TO LAW. On arraignment, petitioner pleaded 'Not Guilty to both charges. Thereafter, the two (2) cases were tried jointly. Eventually, in a decision dated May 18, 1999, the trial court rendered a judgment of conviction in both cases, separately sentencing petitioner to an indeterminate penalty 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, in accordance with PD. No. 1866 in Crim. Case No. 96-149820 (illegal possession of firearm), and to a prison term of one (1) year in Crim. Case No. 96-149821 (violation of the COMELEC Resolution on gun ban). Meanwhile, on June 6, 1997, Republic Act No. 8294[6] was approved into law. Pointing out, among others, that the penalty for illegal possession of firearms under P.D. No. 1866 has already been reduced by the subsequent enactment of Rep. Act No. 8294, hence, the latter law, being favorable to him, should be the one applied in determining his penalty for illegal possession of firearms, petitioner moved for a reconsideration of the May 18, 1999 decision of the trial court.

In its order dated July 15, 1999,[7] however, the trial court denied petitioner's motion, saying: While the law (R.A. 8294) is indeed favorable to the accused and therefore should be made retroactive we are also guided by Art. 4 of the Civil Code which states that laws shall have no retroactive effect, unless the contrary is provided. Republic Act 8294 did not so provide that it shall have a retroactive effect. The Supreme Court likewise in the case of Padilla vs. CA declared: 'The trial court and the respondent court are bound to apply the governing law at the time of the appellant's commission of the offense for it is a rule that laws are repealed only by subsequent ones. Indeed, it is the duty of judicial officers to respect and apply the law as it stands. Therefrom, petitioner went to the Court of Appeals on a petition for certiorari with prayer for a temporary restraining order, thereat docketed as CA-G.R. SP No. 2991-UDK. In the herein assailed resolution dated September 14, 1999, [8] the appellate court dismissed petitioner's recourse on two (2) grounds, to wit: (a) the remedy of certiorari availed of by petitioner is improper since he should have appealed from the July 15, 1999 order of the trial court; and (b) lack of jurisdiction, as the issue involved is a pure question of law cognizable by the Supreme Court. With his motion for reconsideration having been denied by the appellate court in its subsequent resolution of February 8, 2000, [9] petitioner is now with us, submitting for resolution the following issues: (1) whether the Court of Appeals erred in dismissing his petition for certiorari; and (2) whether the courts below erred in not giving Rep. Act No. 8294 a retroactive application. The petition is partly meritorious. At the outset, it must be stressed that petitioner never put in issue the factual findings of the trial court. What he questions is said court's legal conclusion that Rep. Act No. 8294 cannot be retroactively applied to him. Unquestionably, the issue raised is one purely of law. As we have said in MacawiwiliGold Mining and Development Co., Inc. v. Court of Appeals: [10] For a question to be one of law, the same must not involve an examination of the probative value of the evidence presented by the litigants or any one of them. And the distinction is wellknown: there is a question of law in a given case when the doubt or difference arises as to what the law is on a certain state of facts; there is a question of fact when the doubt or

difference arises as to the truth or the falsehood of the facts alleged. Considering that 'judgments of regional trial courts in the exercise of their original jurisdiction are to be elevated to the Court of Appeals in cases when appellant raises questions of fact or mixed questions of fact and law', while 'appeals from judgments of the [same courts] in the exercise of their original jurisdiction must be brought directly to the Supreme Court in cases where the appellant raises only questions of law [11] , petitioner should have appealed the trial court's ruling to this Court by way of a petition for review on certiorari in accordance with Rule 45 of the 1997 Rules of Civil Procedure, as amended,[12] pursuant to Rule 41, Section 2 (c) of the same Rules, viz: SEC. 2. Modes of appeal. ' (a) xxx xxx xxx (b) xxx xxx xxx (c) Appeal by certiorari. ' In all cases where only questions of law are raised or involved, the appeal shall be to the Supreme Court by petition for review on certiorari in accordance with Rule 45. By reason, then, of the availability to petitioner of the remedy of a petition for review under Rule 45, his right to resort to a petition for certiorari under Rule 65 was effectively foreclosed, precisely because one of the requirements for the availment of the latter remedy is that 'there should be no appeal, or any plain, speedy and adequate remedy in the ordinary course of law', [13] the remedies of appeal and certiorari being mutually exclusive and not alternative or successive.[14] As correctly observed by the Court of Appeals, what petitioner should have done was to take an appeal from the trial court's order of July 15, 1999 which denied his motion for reconsideration of the May 18, 1999 judgment of conviction. Petitioner's case is worse compounded by the fact that even his period for appeal had already prescribed when he filed with the Court of Appeals his certiorari petition in CA-G.R. SP No. 2991-UDK. The Rollo of said case reveals that petitioner received his copy of the trial court's order denying his motion for reconsideration on July 20, 1999. As the same Rollo shows, it was only on August 23, 1999, or after more than fifteen (15) days when petitioner filed his wrong remedy of certiorari with the appellate court. Be that as it may, the Court feels that it must squarely address the issue raised in this case regarding the retroactivity of Rep. Act No. 8294, what with the reality that the provisions thereof are undoubtedly favorable to petitioner.

For this purpose, then, we shall exercise our prerogative to set aside technicalities in the Rules and 'hold the bull by its horns' , so to speak. After all, the power of this Court to suspend its own rules whenever the interest of justice requires is not without legal authority or precedent. In Solicitor General, et. al. vs. The Metropolitan Manila Authority, [15] we held: Unquestionably, the Court has the power to suspend procedural rules in the exercise of its inherent power, as expressly recognized in the Constitution, to promulgate rules concerning 'pleading, practice and procedure in all courts. In proper cases, procedural rules may be relaxed or suspended in the interest of substantial justice, which otherwise may be miscarried because of a rigid and formalistic adherence to such rules. xxx xxx xxx xxx We have made similar rulings in other cases, thus: Be it remembered that rules of procedure are but mere tools designed to facilitate the attainment of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice, must always be avoided. xxx Time and again, this Court has suspended its own rules and excepted a particular case from their operation whenever the higher interests of justice so require. We shall now proceed to determine whether the provisions of Rep. Act No. 8294 amending P.D. No. 1866 can be retroactively applied to this case. Here, the two (2) crimes for which petitioner was convicted by the trial court, i.e., (1) illegal possession of firearms under P.D. No. 1866 and (2) violation of COMELEC Resolution No. 2826 on gun ban, were both committed by the petitioner on April 27, 1996. For the crime of illegal possession of firearms in Crim. Case No. 96-149820, he was sentenced to suffer a prison term ranging from ten (10) years and one (1) day of prision mayor, as minimum, to (18) eighteen years, eight (8) months and one (1) day of reclusion temporal, as maximum, in accordance with P.D. No. 1866, Section 1 of which reads: SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms of Ammunition. ' The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully

manufacture, deal in, acquire, dispose, or possess any firearm, part of firearm, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition. (Emphasis supplied) When Rep. Act No. 8294 took effect on July 6, 1997,[16] the penalty for illegal possession of firearms was lowered, depending on the class of firearm possessed, viz: SECTION 1. Section 1 of Presidential Decree No. 1866, as amended, is hereby further amended to read as follows: SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. ' The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed. The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested. (Emphasis supplied) Based on the foregoing, petitioner contends that the reduced penalty under Rep. Act No. 8294 should be the one imposed on him. Significantly, in its Manifestation In Lieu of Comment, [17] the Office of the Solicitor General agrees with the petitioner, positing further that the statement made by this Court in People vs. Jayson [18] to the effect that the provisions for a lighter penalty under Rep. Act No. 8294 does not apply if another crime has been committed, should not be applied to this case because the proviso in Section 1 of said law that 'no other crime was committed must refer only to those crimes committed with the use of an unlicensed firearm and not when the other crime is not related to the use thereof or where the law violated merely criminalizes the possession of the same, like in the case of election gun ban, as here.

As early as August 1997, the month after Rep. Act No. 8294 took effect,[19] this Court has pronounced in Gonzales vs. Court of Appeals [20] that said law must be given retroactive effect in favor of those accused under P.D. No. 1866. Since then, this Court had consistently adhered to the Gonzales ruling.[21] For sure, in People vs. Valdez, [22] where the accused was charged with the complex crime of multiple murder with double frustrated murder and illegal possession of firearms and ammunitions under two separate informations, this Court even took a bolder stance by applying Rep. Act No. 8294 retroactively so that the accused therein may not be convicted of the separate crime of illegal possession of firearms, but refused to apply the same retroactively so as to aggravate the crime of murder. The Valdez ruling had been applied in a host of subsequent cases.[23] Yet, in other cases,[24] although the Court had given Rep. Act No. 8294 retroactive effect so as to prevent the conviction of an accused of the separate crime of illegal possession of firearm when the said unlicensed firearm was ' used to commit the crime of murder or homicide, the Court did not appreciate this 'use of such unlicensed firearm as an aggravating circumstance as provided therein, when the 'use of an unlicensed firearm was not specifically alleged in the information, as required by the Rules on Criminal Procedure. In the light of the existing rulings and jurisprudence on the matter, the present case takes center stage presenting, this time, another twist, so to speak. Petitioner, who was charged of illegal possession of firearms was also charged of another offense: Violation of COMELEC Resolution No. 2826 (Gun Ban), but the unlicensed firearm was not 'used or discharged in this case. The question then which appears to be of first impression, is whether or not the unlicensed firearm should be actually 'used and discharged in the course of committing the other crime in order that Sec. 1, Rep. Act No. 8294 will apply so that no separate crime of illegal possession of firearms may be charged. Let us take a look at the jurisprudence once again. In Cupcupin vs. People ,[25] the accused was charged and convicted for two (2) separate crimes of illegal possession of firearms, and illegal possession of prohibited drugs. In the more recent case of People vs. Almeida ,[26] however, although the accused was acquitted of the separate charge of illegal possession of firearm for lack of evidence, the Court nevertheless made the following clear pronouncement: Furthermore, in any event, the Court has ruled in previous cases that in view of the enactment of Republic Act No. 8294,

there can be no separate offense of illegal possession of firearms and ammunition if there is another crime committed such as, in this case, that of illegal possession of dangerous drugs. (Emphasis supplied) In Almeida, it should be noted that the unlicensed firearm was merely found lying around, together with the prohibited drugs, and therefore, was not being 'used in the commission of an offense. Given this Court's aforequoted pronouncement in Almeida, can the accused in the present case still be separately convicted of two (2) offenses of illegal possession of firearms and violation of gun ban, more so because as in Almeida, the unlicensed firearm was not actually 'used or discharged in committing the other offense? In People vs. Walpan M. Ladjaalam ,[27] this Court, interpreting the subject proviso in Section 1 of Rep. Act No. 8294, applied the basic principles in criminal law, and categorically held: xxx A simple reading thereof shows that if an unlicensed firearm is used in the commission of any crime, there can be no separate offense of simple illegal possession of firearms. Hence, if the 'other crime is murder or homicide, illegal possession of firearms becomes merely an aggravating circumstance, not a separate offense. Since direct assault with multiple attempted homicide was committed in this case, appellant can no longer be held liable for illegal possession of firearms. Moreover, penal laws are construed liberally in favor of the accused. In this case, the plain meaning of RA 8294's simple language is most favorable to herein appellant. Verily, no other interpretation is justified, for the language of the new law demonstrates the legislative intent to favor the accused. Accordingly, appellant cannot be convicted of two separate offenses of illegal possession of firearms and direct assault with attempted homicide. xxx xxx xxx xxx xxx The law is clear: the accused can be convicted of simple illegal possession of firearms, provided that 'no other crime was committed by the person arrested. If the intention of the law in the second paragraph were to refer only to homicide and murder, it should have expressly said so, as it did in the third paragraph. Verily, where the law does not distinguish, neither should we.(Emphasis supplied).

The aforementioned ruling was reiterated and applied in the subsequent cases of People vs. Garcia, [28] where the judgment of conviction of the accused-appellants for illegal possession of firearms was set aside there being another crime ' kidnapping for ransom ' which they were perpetrating at the same time; People vs. Bernal, [29] where the Court retroactively applied Rep. Act No. 8294 in accusedappellant's favor because it would mean his acquittal from the separate offense of illegal possession of firearms; and People vs. Bustamante, [30] where, in refusing to convict the accused-appellant of the separate offense of illegal possession of firearms, the Court declared that insofar as it is favorable to the appellant, the provisions of Rep. Act No. 8294 should be applied liberally and retroactively in that appellant must be acquitted of the charge of illegal possession of firearms. Guided by the foregoing, the Court cannot but set aside petitioner's conviction in Criminal Case No. 96-149820 for illegal possession of firearm since another crime was committed at the same time, i.e., violation of COMELEC Resolution No. 2826 or the Gun Ban. Admittedly, this ruling is not without misgivings considering that it would mean petitioner's acquittal of the more serious offense of illegal possession of firearms which carries a much heavier penalty than violation of the COMELEC gun-ban resolution. However, as we have rationalized in Ladjaalam: [31] xxx Indeed, the accused may evade conviction for illegal possession of firearms by using such weapons in committing an even lighter offense, like alarm and scandal or slight physical injuries, both of which are punishable by arresto menor. This consequence, however, necessarily arises from the language of RA 8294, whose wisdom is not subject to the Court's review. Any perception that the result reached here appears unwise should be addressed to Congress. Indeed, the Court has no discretion to give statutes a new meaning detached from the manifest intendment and language of the legislature. Our task is constitutionally confined only to applying the law and jurisprudence to the proven facts, and we have done so in this case. The solemn power and duty of the Court to interpret and apply the law does not include the power to correct by reading into the law what is not written therein. While we understand respondent People's contention that the 'use of the firearm seemed to have been the main consideration during the deliberations of the subject provision of Rep. Act No. 8294, the fact remains that the word 'use never found its way into the final version of the bill which eventually became Rep. Act No. 8294. The Court's hands are now tied and it

cannot supply the perceived deficiency in the final version without contravening the most basic principles in the interpretation of penal laws which had always leaned in favor of the accused. Under our system of government where powers are allocated to the three (3) great branches, only the Legislature can remedy such deficiency, if any, by proper amendment of Sec. 1 of Rep. Act No. 8294. As written, Sec. 1, Rep. Act No. 8294 restrains the Court from convicting petitioner of the separate crime of illegal possession of firearm despite the fact that, as in Almeida, the unlicensed firearm was not actually 'used. For sure, there is, in this case, closer relation between possession of unlicensed firearm and violation of the COMELEC gun-ban than the illegal possession of unlicensed firearm to the crime of illegal possession of prohibited drugs in Almeida. WHEREFORE, Criminal Case No. 96-149820 for illegal possession of firearms is hereby DISMISSED while the judgment of conviction in Criminal Case No. 96-149821 for violation of COMELEC Resolution No. 2826 in relation to Rep. Act No. 7166 (Gun Ban), is AFFIRMED. Since petitioner has already served more than the penalty imposed upon him by the trial court in Criminal Case No. 96149821, his immediate release from custody is hereby ORDERED unless detained for some other lawful cause. SO ORDERED. G.R. No. 77569 June 29, 1988 RICARDO CELINO, petitioner, vs. THE COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents. On August 14, 1981, the First Assistant Provincial Fiscal of Laguna filed with the Court of First Instance, Eight Judicial District, Branch IV, Calamba, Laguna, an information for ESTAFA against Zosimo Celino, Ricardo Celino and Requerido Celino. The information alleged the following: That sometime on or about March 17, 1978 and subsequently thereafter, at Brgy. San Nicolas, Bay, Laguna and within the jurisdiction of this Honorable Court, the above-named accused, with intent to defraud and by means of false pretenses, did then and there

wilfully, unlawfully, and feloniously conspiring, confederating and helping with each other and falsely pretending to possess power, influence and/or imaginary transaction, induced one JOSE TAN KAPOE to believe that hidden treasures can be recovered in the latter's yard and as a consequence thereof, demands the sum of P50,230.00 in exchange to such treasures, as in fact said accused received said amount in trust, and once in possession thereof, thru deceitful means misappropriated and misapplied said amount to their own personal use and benefit, to the damage and prejudice of JOSE TAN KAPOE in the aforementioned amount of P50,230.00, Philippine Currency. CONTRARY TO LAW. (p. 8, Rollo.) Assisted by their counsel, Ricardo Celino and Zosimo Celino pleaded not guilty to the crime charged. During the arraignment accused Requerido Celino remained at large. It appears that only Ricardo Celino, the petitioner, stood for trial in as much as on July 20, 1983, the trial court dismissed the case against Zosimo Celino who died on June 11, 1983. In a decision dated May 29, 1985, the trial court found accused Ricardo Celino guilty of the clime charged and sentenced him as follows: IN VIEW OF ALL THE FOREGOING, the prosecution having established the participation of accused Ricardo Celino as co-principal, beyond reasonable doubt, in the commission of the crime of estafa under Article 315, No. 2 (a) of the Revised Penal Code, the Court hereby finds accused Ricardo Celino guilty thereof and hereby sentences him to suffer imprisonment, after applying the Indeterminate Sentence Law, to two (2) years, eleven (11) months and ten (10) days of prision correccional as the MINIMUM to eight (8) years of prision mayor as the MAXIMUM; and to return to complainant Jose Tan Kapoe the amount of P41,300.00, and to pay the costs of litigation.

SO ORDERED. (p. 9, Rollo.) The prosecution's version of the facts as testified to by complainant Jose Tan Kapoe, his employee-overseer, Feliciano Batitis, his driver, Ricardo de la Cruz and Pat. Jose Batacan, is summarized in the trial court's decision as follows: Complainant Jose Tan Kapoe testified that on March 17, 1978, accused Zosimo and Ricardo Celino together with two (2) other companions went to his house and informed him that there was a hidden treasure under his lot located in the poblacion of Calauan, Laguna; that accused Zosimo and Ricardo Celino told him that a certain dwarf entering the body of Zosimo is giving instructions to the latter as to the digging operations; that he will be given millions of pesos; that because he and accused Ricardo Celino as well as their fathers were close friends, he believed them; that they dug a hole in his ricemill up to May 31, 1978; that they told him that they discovered a treasure, a jar full of gold; that both accused Ricardo and Zosimo did not allow him to see it by covering it with a sack and white cloth; that both Ricardo and Zosimo told him to give P10,000.00 and he got the money from his safety vault, placed it in a white envelope, 6x3 inches, and gave it to the accused Zosimo; that both Ricardo and Zosimo went inside the little room under the stairs of his house where they brought the jar filled with treasure and placed the money on the treasure; that Ricardo and Zosimo stayed in the room for about 1/2 hour and then they went out of the room and closed the door; that Zosimo told him that they are going back upon instructions of the dwarf and that they will communicate with him again; that the second time, he was told by the two (2) brothers, Requerido and Cipriano Celino to give P5,000.00 which he also placed in a white envelope; that he gave the money to Zosimo who together with his father, accused Ricardo, went inside again the room and they said that they placed the money on the treasure; that

he was forbidden to enter or touch the treasure because the dwarf will be angry; that the third time, it was Requerido Celino who advised him to give money allegedly upon instructions of the dwarf and he withdrew money from the Bank of the Philippine Islands and they went through the same procedure in placing the money in the white envelope and entering the room; that Zosimo required him to go to the church of Landayan, located at San Pedro, Laguna for three (3) consecutive days; that the Celinos continued to ask for money to be put in the jar and he got from said bank (Exh. A-1); that all in all, the money which he had given to the accused amounted to P50,230.00 (Exh. A); that when his savings in the bank was exhausted, he asked them to set a deadline and he was told May 30, 1979; that he was hoping by that time, he will get back the money and the gold; that they did not fulfill their promise on May 30, 1979 and so he opened the jar and found that it contained only newspaper, comics, rocks and soil; that thereafter, he wrote a letter to Zosimo to return his money through his driver Batitis (Exh. B) and Zosimo wrote back that he will return the money (Exh. C), (TSN, Hearings of April 28, 1982 and April 21, 1983.) Prosecution witness Feliciano Batitis who is working for complainant Tan Kapoe as an overseer confirmed the fact that he was instructed by complainant to go to the house of Ricardo and Zosimo at Barrio Maslit and bring the letter (Exh. B) after the jar was opened and complainant found nothing; and, the fact that Zosimo wrote a letter signed by "Apo Dapo" the alleged name of the dwarf who were (sic) possessing ("sumasapi") Zosimo (Exh. C). He likewise testified that he had seen Ricardo and his sons Zosimo and Requerido in the house of complainant many times in 1978 but he did not hear what they were talking about; that he saw them after that excavating

and digging inside the ricemill; that he saw complainant give the amounts of P10,000.00 and P5,000.00 to accused Zosimo and Ricardo. (TSN, Hearing of May 16, 1983.) The third prosecution witness, Ricardo dela Cruz is the driver of herein complainant. He testified that he saw the three (3) accused digging inside the ricemill; that he accompanied complainant to get money from the Bank of Philippine Islands; that he saw complainant give an envelope to accused Ricardo who handed the same to Zosimo and the latter went inside the room under the stairs, that after Zosimo got out of the room, complainant was told not to touch the envelope containing money which he left inside the room; that accused Ricardo was present when this was said; that he saw only the giving of P10,000.00 (TSN. Hearing of July 20, 1983.) Pat. Jose Batacan merely attested to the fact that upon his investigation when the matter was reported to the police by complainant, he found a hole dug in the ricemill of complainant; that he saw the jar containing sand and pieces of paper. (TSN, Hearing of October 19, 1983.) On the other hand, the defense relied on the testimonies of accused Ricardo Celino and one Gualberto Libres: In his defense, accused Ricardo Celino testified that he never discussed with complainant about a hidden treasure; that if indeed complainant gave money to his son Zosimo Celino (now deceased), he did not know anything about it; that complainant got angry with him because complainant wanted him to return the money given to his son Zosimo; that when he asked his son Zosimo if complainant gave him money, Zosimo denied it; that complainant told him that he had given money to Zosimo and if they will not

admit that he gave money, he will file a case against them; that he told complainant not to include him in the case he will file because he had not done anything wrong to him and complainant told him that if he (accused Ricardo) will not return the money, he will be included in the charge; that he answered him why will he return the money when his son did not give him any money; that witnesses Batitis and dela Cruz testified against him because they are complainant's servants; that he and his son Zosimo were likewise charged of estafa at San Pablo City where his son pleaded guilty and the case against him dismissed. (TSN, Hearing of June 20,1984.) Gualberto Libres testified that he is a neighbor of accused Ricardo Celino and that his house is one (1) meter away from the house of Ricardo; that when complainant was looking for Zosimo, he never asked about accused Ricardo Celino. (TSN, Hearing of January 23, 1985.) The Court of Appeals affirmed the decision of the trial court finding the accused Ricardo Celino guilty beyond reasonable doubt. The case is now before this Court for review. There are two (2) errors allegedly committed by the appellate court, to wit: I. THE COURT OF APPEALS ERRED IN NOT APPLYING PROVISIONS OF LAW AND THE JURISPRUDENCE LAID DOWN BY THE SUPREME COURT, IN THE CASE AT BAR. THE COURT OF APPEALS ERRED IN ARRIVING AT A CONCLUSION WHICH IS CONTRARY TO THE FACTS AND CIRCUMSTANCES OF THE CASE.

nature. The evidence presented in this case conclusively shows that Ricardo Celino, together with his two sons, Zosimo (deceased) and Requerido, led the complainant to believe that there was a hidden treasure underneath his lot; that a dwarf whose spirit supposedly entered the body of Zosimo directed the digging operations; that to obtain said treasure and upon instructions of the "dwarf," it was necessary for the complainant to give the accused money which amounted to P41,300.00 all in all and to pray in the church for three (3) consecutive days. Under the abovestated facts, both the trial court and the Court of Appeals found that that there was proof beyond reasonable doubt that the act committed by the petitioner constitutes the crime of estafa defined and punished under Article 315, 2(a) of the Revised Penal Code, to wit: Art. 315. Swindling (estafa). Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by: xxx xxx xxx 2. By means of any of the following false pretenses of fraudulent acts executed prior to or simultaneously with the commission of the fraud: (a) By using a fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions; or by means of other similar deceits. (Emphasis supplied). xxx xxx xxx

II.

After a careful scrutiny of the record of this case, the Court finds that the Court of Appeals committed no reversible error in affirming Ricardo Celinos conviction. There is no merit to the petitioner's pretense that the transaction between him and the complainant was one of "joint venture" and that if he had any liability at all, it is civil in

Furthermore, no evidence was adduced by petitioner in support of his contention that he and the complainant were partners in a "joint venture" transaction. The case of U.S. v. Clarin [17 Phil. 85 (1910)] cited by the petitioner is therefore not applicable. The facts clearly show that petitioner together with his sons pretended to possess power to find hidden treasure in order to fleece the complainant of his hard-earned money. Contrary to the petitioner's allegation, the trial court and the Court of Appeals correctly applied the law and jurisprudence laid down by this Court on the matter. Under the cases of People v. Scott [62 Phil 553 (1935)] and U.S. v. de los Reyes [34 Phil. 693 (1916)] bearing similar facts as the case at bar, the acts committed by the petitioner constitute a classic case of swindling under Art. 315 2(a) of the Revised Penal Code aforequoted. WHEREFORE, the petition for certiorari is DENIED for lack of merit. The Court of Appeals decision dated November 11, 1986 is AFFIRMED. G.R. No. 117857 February 2, 2001

duly acknowledged in a confirmation receipt he co-signed 2 with his wife. Hence, petitioners customers were required to issue postdated checks before LPI would accept their purchase orders. In early December 1985, Wong issued six (6) postdated checks totaling P18,025.00, all dated December 30, 1985 and drawn payable to the order of LPI, as follows: (1) Allied Banking Corporation (ABC) Check No. 660143464-C for P6,410.00 (Exh. "B"); (2) ABC Check No. 660143460-C for P540.00 (Exh. "C"); (3) ABC Check No. PA660143451-C for P5,500.00 (Exh. "D"); (4) ABC Check No. PA660143465-C for P1,100.00 (Exh. "E"); (5) ABC Check No. PA660143463-C for P3,375.00 (Exh. "F"); (6) ABC Check No. PA660143452-C for P1,100.00 (Exh. "G"). These checks were initially intended to guarantee the calendar orders of customers who failed to issue post-dated checks. However, following company policy, LPI refused to accept the checks as guarantees. Instead, the parties agreed to apply the checks to the payment of petitioners unremitted collections for 1984 amounting to P18,077.07.3 LPI waived the P52.07 difference. Before the maturity of the checks, petitioner prevailed upon LPI not to deposit the checks and promised to replace them within 30 days. However, petitioner reneged on his promise. Hence, on June 5, 1986, LPI deposited the checks with Rizal Commercial Banking Corporation (RCBC). The checks were returned for the reason "account closed." The dishonor of the checks was evidenced by the RCBC return slip. On June 20, 1986, complainant through counsel notified the petitioner of the dishonor. Petitioner failed to make arrangements for payment within five (5) banking days. On November 6, 1987, petitioner was charged with three (3) counts of violation of B.P. Blg. 224 under three separate Informations for the three checks amounting to P5,500.00, P3,375.00, and P6,410.00.5 The Information in Criminal Case No. CBU-12055 reads as follows:6

That on or about the 30 day of December, 1985 and for sometime subsequent thereto, in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, knowing at the time of issue of the check she/he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, with deliberate intent, with intent of gain and of causing damage, did then and there issue, make or draw Allied Banking Corporation Check No. 660143451 dated 12-30-85 in the amount of P5,500.00 payable to Manuel T. Limtong which check was issued in payment of an obligation of said accused, but when the said check was presented with said bank, the same was dishonored for reason ACCOUNT CLOSED and despite notice and demands made to redeem or make good said check, said accused failed and refused, and up to the present time still fails and refuses to do so, to the damage and prejudice of said Manuel T. Limtong in the amount of P5,500.00 Philippine Currency. Contrary to law. Petitioner was similarly charged in Criminal Case No. 12057 for ABC Check No. 660143463 in the amount of P3,375.00, and in Criminal Case No. 12058 for ABC Check No. 660143464 for P6,410.00. Both cases were raffled to the same trial court. Upon arraignment, Wong pleaded not guilty. Trial ensued. Manuel T. Limtong, general manager of LPI, testified on behalf of the company, Limtong averred that he refused to accept the personal checks of petitioner since it was against company policy to accept personal checks from agents. Hence, he and petitioner simply agreed to use the checks to pay petitioners unremitted collections to LPI. According to Limtong, a few days before maturity of the checks, Wong requested him to defer the deposit of said checks for lack of funds. Wong promised to replace them within thirty days, but failed to do so. Hence, upon advice of counsel, he deposited the checks which were subsequently returned on the ground of "account closed." The version of the defense is that petitioner issued the six (6) checks to guarantee the 1985 calendar bookings of his customers. According to petitioner, he issued the checks not as payment for any obligation, but to guarantee the orders of his customers. In fact, the face value of the six (6) postdated checks tallied with the total amount of the calendar orders of

th

LUIS S. WONG, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. QUISUMBING, J.: For review on certiorari is the decision dated October 28, 1994 of the Court of Appeals in C.A. G.R. CR 118561 which affirmed the decision of the Regional Trial Court of Cebu City, Branch 17, convicting petitioner on three (3) counts of Batas Pambansa Blg. 22 (the Bouncing Checks Law) violations, and sentencing him to imprisonment of four (4) months for each count, and to pay private respondent the amounts of P5,500.00, P6,410.00 and P3,375.00, respectively, corresponding to the value of the checks involved, with the legal rate of interest from the time of filing of the criminal charges, as well as to pay the costs.1wphi1.nt The factual antecedents of the case are as follows: Petitioner Wong was an agent of Limtong Press. Inc. (LPI), a manufacturer of calendars. LPI would print sample calendars, then give them to agents to present to customers. The agents would get the purchase orders of customers and forward them to LPI. After printing the calendars, LPI would ship the calendars directly to the customers. Thereafter, the agents would come around to collect the payments. Petitioner, however, had a history of unremitted collections, which he

the six (6) customers of the accused, namely, Golden Friendship Supermarket, Inc. (P6,410.00), New Society Rice and Corn Mill (P5,500.00), Cuesta Enterprises (P540.00), Pelrico Marketing (P1,100.00), New Asia Restaurant P3,375.00), and New China Restaurant (P1,100.00). Although these customers had already paid their respective orders, petitioner claimed LPI did not return the said checks to him. On August 30, 1990, the trial court issued its decision, 7 disposing as follows: "Wherefore, premises considered, this Court finds the accused Luis S. Wong GUILTY beyond reasonable doubt of the offense of Violations of Section 1 of Batas Pambansa Bilang 22 in THREE (3) Counts and is hereby sentenced to serve an imprisonment of FOUR (4) MONTHS for each count; to pay Private Complainant Manuel T. Limtong the sums of Five Thousand Five Hundred (P5,500.00) Pesos, Six Thousand Four Hundred Ten (P6,410.00) Pesos and Three Thousand Three Hundred Seventy-Five (P3,375.00) Pesos corresponding to the amounts indicated in Allied Banking Checks Nos. 660143451, 66[0]143464 and 660143463 all issued on December 30, 1985 together with the legal rate of interest from the time of the filing of the criminal charges in Court and pay the costs."8 Petitioner appealed his conviction to the Court of Appeals. On October 28, 1994, it affirmed the trial courts decision in toto.9 Hence, the present petition.10 Petitioner raises the following questions of law -11 May a complainant successfully prosecute a case under BP 22 --- if there is no more consideration or price or value ever the binding tie that it is in contracts in general and in negotiable instruments in particular behind the checks? if even before he deposits the checks, he has ceased to be a holder for value because the purchase orders (POs) guaranteed by the checks were already paid? Given the fact that the checks lost their reason for being, as above stated, is it not then the duty of complainant knowing he is no longer a holder for value to return the checks and not to deposit them ever? Upon what legal basis then may such a holder deposit them and get paid twice?

Is petitioner, as the drawer of the guarantee checks which lost their reason for being, still bound under BP 22 to maintain his account long after 90 days from maturity of the checks? May the prosecution apply the prima facie presumption of "knowledge of lack of funds" against the drawer if the checks were belatedly deposited by the complainant 157 days after maturity, or will it be then necessary for the prosecution to show actual proof of "lack of funds" during the 90-day term? Petitioner insists that the checks were issued as guarantees for the 1985 purchase orders (POs) of his customers. He contends that private respondent is not a "holder for value" considering that the checks were deposited by private respondent after the customers already paid their orders. Instead of depositing the checks, private respondent should have returned the checks to him. Petitioner further assails the credibility of complainant considering that his answers to cross-examination questions included: "I cannot recall, anymore" and "We have no more record." In his Comment,12 the Solicitor General concedes that the checks might have been initially intended by petitioner to guarantee payments due from customers, but upon the refusal of LPI to accept said personal checks per company policy, the parties had agreed that the checks would be used to pay off petitioners unremitted collections. Petitioners contention that he did not demand the return of the checks because he trusted LPIs good faith is contrary to human nature and sound business practice, according to the Solicitor General. The issue as to whether the checks were issued merely as guarantee or for payment of petitioners unremitted collections is a factual issue involving as it does the credibility of witnesses. Said factual issue has been settled by the trial court and Court of Appeals. Although initially intended to be used as guarantee for the purchase orders of customers, they found the checks were eventually used to settle the remaining obligations of petitioner with LPI. Although Manuel Limtong was the sole witness for the prosecution, his testimony was found sufficient to prove all the elements of the offense charged.13 We find no cogent reason to depart from findings of both the trial and appellate courts. In cases elevated from the Court of Appeals, our review is confined to allege errors of law. Its findings of fact are generally conclusive. Absent any showing that the findings by the respondent court are entirely devoid of any substantiation on record, the same must stand.14 The lack of accounting between the parties is not the issue in this case. As repeatedly held, this Court is not a trier

of facts. Moreover, in Llamado v. Court of Appeals, we held that "[t]o determine the reason for which checks are issued, or the terms and conditions for their issuance, will greatly erode the faith the public reposes in the stability and commercial value of checks as currency substitutes, and bring about havoc in trade and in banking communities. So what the law punishes is the issuance of a bouncing check and not the purpose for which it was issued nor the terms and conditions relating to its issuance. The mere act of issuing a worthless check is malum prohibitum." Nothing herein persuades us to hold otherwise. The only issue for our resolution now is whether or not the prosecution was able to establish beyond reasonable doubt all the elements of the offense penalized under B.P. Blg. 22. There are two (2) ways of violating B.P. Blg. 22: (1) by making or drawing and issuing a check to apply on account or for value knowing at the time of issue that the check is not sufficiently funded; and (2) by having sufficient funds in or credit with the drawee bank at the time of issue but failing to keep sufficient funds therein or credit with said bank to cover the full amount of the check when presented to the drawee bank within a period of ninety (90) days.17 The elements of B.P. Blg. 22 under the first situation, pertinent to the present case, are:18 "(1) The making, drawing and issuance of any check to apply for account or for value; (2) The knowledge of the maker, drawer, or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment; and (3) The subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment." Petitioner contends that the first element does not exist because the checks were not issued to apply for account or for value. He attempts to distinguish his situation from the usual "cut-and-dried" B.P. 22 case by claiming that the checks were issued as guarantee and the obligations they were supposed to guarantee were already paid. This flawed argument has no factual basis, the RTC and CA having both ruled that the checks were in payment for unremitted collections, and not as guarantee. Likewise, the argument has no legal basis, for what B.P. Blg. 22 punishes is the issuance of a bouncing check and not the purpose for which it was issued nor the terms and conditions relating to its issuance.19

15

16

As to the second element, B.P. Blg. 22 creates a presumption juris tantum that the second element prima facie exists when 20 the first and third elements of the offense are present. Thus, the makers knowledge is presumed from the dishonor of the 21 check for insufficiency of funds. Petitioner avers that since the complainant deposited the checks on June 5, 1986, or 157 days after the December 30, 1985 maturity date, the presumption of knowledge of lack of funds under Section 2 of B.P. Blg. 22 should not apply to him. He further claims that he should not be expected to keep his bank account active and funded beyond the ninety-day period. Section 2 of B.P. Blg. 22 provides: Evidence of knowledge of insufficient funds. The making, drawing and issuance of a check payment of which is refused by the drawee because of insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee. An essential element of the offense is "knowledge" on the part of the maker or drawer of the check of the insufficiency of his funds in or credit with the bank to cover the check upon its presentment. Since this involves a state of mind difficult to establish, the statute itself creates a prima facie presumption of such knowledge where payment of the check "is refused by the drawee because of insufficient funds in or credit with such bank when presented within ninety (90) days from the date of the check." To mitigate the harshness of the law in its application, the statute provides that such presumption shall not arise if within five (5) banking days from receipt of the notice of dishonor, the maker or drawer makes arrangements for payment of the check by the bank or pays the holder the amount of the check.22 Contrary to petitioners assertions, nowhere in said provision does the law require a maker to maintain funds in his bank account for only 90 days. Rather, the clear import of the law is to establish a prima facie presumption of knowledge of such insufficiency of funds under the following conditions (1) presentment within 90 days from date of the check, and (2) the dishonor of the check and failure of the maker to make

arrangements for payment in full within 5 banking days after notice thereof. That the check must be deposited within ninety (90) days is simply one of the conditions for the prima facie presumption of knowledge of lack of funds to arise. It is not an element of the offense. Neither does it discharge petitioner from his duty to maintain sufficient funds in the account within a reasonable time thereof. Under Section 186 of the Negotiable Instruments Law, "a check must be presented for payment within a reasonable time after its issue or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay." By current banking practice, a check becomes stale after more than six (6) months,23 or 180 days. Private respondent herein deposited the checks 157 days after the date of the check. Hence said checks cannot be considered stale. Only the presumption of knowledge of insufficiency of funds was lost, but such knowledge could still be proven by direct or circumstantial evidence. As found by the trial court, private respondent did not deposit the checks because of the reassurance of petitioner that he would issue new checks. Upon his failure to do so, LPI was constrained to deposit the said checks. After the checks were dishonored, petitioner was duly notified of such fact but failed to make arrangements for full payment within five (5) banking days thereof. There is, on record, sufficient evidence that petitioner had knowledge of the insufficiency of his funds in or credit with the drawee bank at the time of issuance of the checks. And despite petitioners insistent plea of innocence, we find no error in the respondent courts affirmance of his conviction by the trial court for violations of the Bouncing Checks Law. However, pursuant to the policy guidelines in Administrative Circular No. 12-2000, which took effect on November 21, 2000, the penalty imposed on petitioner should now be modified to a fine of not less than but not more than double the amount of the checks that were dishonored. WHEREFORE, the petition is DENIED. Petitioner Luis S. Wong is found liable for violation of Batas Pambansa Blg. 22 but the penalty imposed on him is hereby MODIFIED so that the sentence of imprisonment is deleted. Petitioner is ORDERED to pay a FINE of (1) P6,750.00, equivalent to double the amount of the check involved in Criminal Case No. CBU-12057, (2) P12,820.00, equivalent to double the amount of the check involved in Criminal Case No. CBU-12058, and (3) P11,000.00, equivalent to double the amount of the check involved in Criminal Case No. CBU-12055, with subsidiary imprisonment24 in case of insolvency to pay the aforesaid fines. Finally, as civil indemnity, petitioner is also ordered to pay to LPI the face value of said checks totaling P18,025.00 with legal interest thereon from the time of filing the criminal charges in court, as well as to pay the costs.1wphi1.nt SO ORDERED.

G.R. No. 131714 November 16, 1998 EDUARDO R. VACA and FERNANDO NIETO, petitioners, vs. COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, respondents. MENDOZA, J.: Petitioners seek a review of the decision, dated October 25, 1 2 1996, and the resolution, dated December 2, 1997, of the Court of Appeals, affirming their conviction by the Regional Trial Court of Quezon City (Branch 100) for violation of B.P. Blg. 22, otherwise known as the "Bouncing Checks Law." The facts are as follows: Petitioner Eduardo R. Vaca is the president and owner of Ervine International, Inc. (Ervine), which is engaged in the manufacture and sale of refrigeration equipment, while his son-in-law, petitioner Fernando Nieto, is the firm's purchasing manager. On March 10, 1988, petitioners issued a check for P10,000.00 to the General Agency for Reconnaissance, Detection, and Security, Inc. (GARDS) in partial payment of the security services rendered by GARDS to Ervine. The check was drawn on the China Banking Corporation (CBC). When deposited in the Philippine Commercial International Bank (PCIBank) branch at Shaw Boulevard, Mandaluyong, the check was dishonored for insufficiency of funds. On March 29, 1988, GARDS wrote Ervine a letter in which it demanded payment in cash of the amount of the check within seven days from notice. The letter was received by Ervine on the same day, but petitioners did not pay within the time given. On April 13, 1988, petitioners issued a check for P19,860.16 to GARDS. The check was drawn on the Associated Bank. The voucher accompanying it stated that the check was to replace the dishonored check, the P9,860.16 balance being partial payment for Ervine's outstanding account. The check and the voucher were received by a GARDS messenger, Nolan C. Pena, on April 15, 1988, but GARDS did not return the dishonored check. On April 14, 1988, GARDS Operations Manager Jovito C. Cabusara filed a criminal complaint against petitioners for violation of B.P. Blg. 22. After preliminary investigation, an information was filed in the Regional Trial Court of Quezon City (Branch 97). However, the case was dismissed by the

court on May 11, 1989, upon motion of the prosecution, on the ground that Ervine had already paid the amount of the check. On September 18, 1989, GARDS, through its Acting Operations Manager Eduardo B. Alindaya, filed another complaint for violation of B.P. Bldg. 22 against petitioners. This resulted in the filing of an information against petitioners in the Regional Trial Court of Quezon City (Branch 100). After trial, petitioners were found guilty of the charge and each was sentenced to suffer one (1) year imprisonment and to pay a fine of P10,000.00 and the costs. On appeal, the Court of Appeals affirmed the decision. It subsequently denied petitioners' motion for reconsideration. Hence, this petition. Petitioners contend: A. Respondent Court gravely erred in not holding that the prosecution failed to prove petitioners' guilt beyond reasonable doubt. B. Respondent Court gravely erred in basing conviction on the alleged weakness of the evidence of the defense rather than on the strength of the evidence of the prosecution. C. Respondent Court erred in not acquitting petitioners on grounds of "mistake of fact" and "lack of knowledge."

Petitioners pray that the case against them be dismissed or, in the alternative, that the decision of the trial court be modified by sentencing each to an increased fine but without imprisonment. By supplemental petition, dated January 29, 1998, petitioners submitted an affidavit of desistance executed by GARDS president Dominador R. Santiago which states that the case arose from a mere "accounting difference" between petitioners and GARDS, that the latter had not really suffered any damage as a result of the issuance of the check in question and, that GARDS was no longer interested in prosecuting the case. On May 28, 1998, petitioners filed another supplemental petition, this time invoking the recent decision in Lao v. Court of Appeals, 3 in which this Court reversed a conviction for violation of B.P. Blg. 22 upon a showing that the accused had no knowledge of the insufficiency of funds. The Solicitor General opposes the appeal. He contends that the facts of Lao v. Court of Appeals are different from those of the case at bar and that the affidavit of desistance of Dominador Santiago is of no moment, such affidavit having been made only after petitioners' conviction. After due review of the decision in this case, we find that petitioners' conviction for violation of B.P. Blg. 22 is well founded. First. The elements of the offense penalized under B.P. Blg. 22 are: (1) making, drawing, and issuance of any check to apply to account or for value; (2) knowledge of the maker, drawer, or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of the check in full upon its presentment; and (3) subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit, or dishonor of the check for the same reason had not the drawer, without any valid cause, ordered the bank to stop paymnent. 4 The maker's knowledge is presumed from the dishonor of the check for insufficiency of funds. 5 Thus, 2 of B.P. Blg. 22 expressly provides: Sec. 2. Evidence of knowledge of insufficient funds. The making, drawing and issuance of a check payment of which is refused by the drawee because of insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such

insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee. In this case, after being notified on March 29, 1988 of the dishonor of their previous check, petitioners gave GARDS a check for P19,860.16. They claim that this check had been intended by them to replace the bad check they had previously issued to the GARDS. Based on the testimony of a GARDS accountant, however, the Court of Appeals found that the check was actually payment for two bills, one for the period of January 16 to January 31, 1988 in the amount of P9,930.08 and another one for the period of March 16 to March 31, 1988 in the same amount. But even if such check was intended to replace the bad one, its issuance on April 13, 1988 15 days after petitioners had been notified on March 29, 1988 of the dishonor of their previous check cannot negate the presumption that petitioners knew of the insufficiency of funds to cover the amount of their previous check. Sec. 2 of B.P. Blg. 22 requires that such check be given within five (5) days from the notice of dishonor to them. Petitioners contend that, in accordance with the ruling in Lao v. Court of Appeals, 6 they should be acquitted because the preparation of checks is the responsibility of the company accountant and all they do is sign the checks. They claim that they rely on the word of the accountant that there are sufficient funds in the bank to pay for the checks. In the Lao case, the accused, as the Court found, had merely been made by her employer, Premiere Investment House, to countersign checks in bank. The accused was a mere employee who did not have anything to do with the issuance of checks for the company. She did not know to whom the checks would be paid as the names of payees were written only later by the head of operations. Moreover, no notice of dishonor was given to her as required by B.P. Blg. 22 2. It could thus rightly be concluded that the accused issued checks to apply to account not knowing that at the time of issuance funds were insufficient to pay for the checks. Petitioners in this case cannot pretend ignorance of the insufficiency of funds. While it may be true that it was the company's accountant who actually prepared the rubber check, the fact remains that petitioners are the owners and officers of the company. Sec. 1 of B.P. Blg. 22 provides that "Where the check is drawn by a corporation, company, or

entity, the person or persons who actually signed the check in behalf of such drawer shall be liable under this Act. In fact, petitioner Nieto testified that after the check in question was dishonored, he instructed their company 7 accountant to prepare a replacement check. This belies petitioners' claim that they had no hand in the preparation of 8 checks and shows that petitioners were in control of the finances of the company. Second. The affidavit of desistance of the GARDS president deserves no more than passing mention. The claim that this case was simply the result of a misunderstanding between GARDS and petitioners and that the former did not really suffer any damage from the dishonor of the check is flimsy. After prosecuting the case below with tenacity, complainants going so far as to file another complaint after their first one had been dismissed, it is trifling with this Court for complainants to now assert that the filing of their case was simply a mistake. It is for reasons such as this the affidavit of desistance, like retractions, are generally disfavored. 9 The affidavit in this case, which was made after petitioners' conviction, is nothing but a last-minute attempt to save them from punishment. Even if the payee suffered no damage as a result of the issuance of the bouncing check, the damage to the integrity of the banking system cannot be denied. Damage to the payee is not an element of the crime punished in B.P. Blg. 22. Third. Petitioners pray that, in the alternative, the penalty be modified by deleting the sentence of imprisonment and, in lieu thereof a fine in an increased amount be imposed on them. In support of their plea, they allege that they do not have any record of prior conviction; that Eduardo Vaca is of advanced age (late 60s); and, that they come from good families. Petitioners claim that "with their family background and social standing there is no reason why they, will refuse to pay a due and demandable debt of only P10,000.00. It is precisely because of their founded belief that the subject obligation has been paid that they refused to be intimidated by a criminal charge." The Court of Appeals dismissed these allegations as irrelevant to the question of petitioners' guilt. We think so ourselves. However, we believe that they can be considered in determining the appropriate penalty to impose on petitioners. B.P. Blg. 22, 1, par. 1 provides a penalty of "imprisonment of not less than thirty days but not more than one (1) year or by a fine of not less than, but not more than double, the amount of the check which fine shall in no case esceed two hundred

thousand pesos, or both such fine and imprisonment at the discretion of the Court." Petitioners are first-time offenders. They are Filipino entrepreneurs who presumably contribute to the national economy. Apparently, they brought this appeal, believing in all good faith, although mistakenly, that they had not committed a violation of B.P. Blg. 22. Otherwise, they could simply have accepted the judgment of the trial court and applied for probation to evade a prison term. It would best serve the ends of criminal justice if in fixing the penalty within the range of discretion allowed by 1, par. 1, the same philosophy underlying the Indeterminate Sentence Law is observed, namely, that of redeeming valuable human material and preventing unnecessary deprivation of personal liberty and economic usefulness with due regard to the protection of 10 the social order. In this case we believe that a fine in an amount equal to double the amount of the check involved is an appropriate penalty to impose on each of the petitioners. WHEREFORE, the decision of the Court of Appeals AFFIRMED with the modification that the sentence imprisonment is deleted and petitioners are each ordered pay a fine of P20,000.00 equivalent to double the amount the check. SO ORDERED Administrative Circular No. 12-2000 is of to of

applied for probation to evade a prison term. It would best serve the ends of criminal justice if in fixing the penalty within the range of discretion allowed by 1, par. 1, the same philosophy underlying the Indeterminate Sentence Law is observe, namely, that of redeeming valuable human material and preventing unnecessary deprivation f personal liberty and economic usefulness with due regard to the protection f the social order. In this case we believe that a fine in an amount equal to double the amount of the check involved is an appropriate penalty to impose on each of the petitioners In the recent case of Rosa Lim v. People of the Philippines (G. R. No. 130038, 18 September 2000), the Supreme Court en banc, applying Vaca also deleted the penalty of imprisonment and sentenced the drawer of the bounced check to the maximum of the fine allowed by B.P. Blg. 22, i.e., P200,000, and concluded that such would best serve the ends of criminal justice. All courts and judges concerned should henceforth take note pf the foregoing policy of of the Supreme Court on the matter of the imposition of penalties for violations of B.P. Blg. 22. Court Administrator shall cause the immediate dissemination of this Administrative Circular to all courts and judges concerned. This Administrative Circular, referred to and approved by the Supreme Court en banc, shall take effect upon its issuance. Issued this 21st day of November 2000.

Re: Penalty for Violation of B.P. Blg. 22 Section 1 of B.P. Blg. 22 (An Act Penalizing te Making or Drawing and Issuance of a Check Without Sufficient Funds for Credit and for Other Purposes) imposes the penalty of imprisonment of not less than thirty (30) days but not more than one (1) year OR a fine of not less than but not more tan double the amount of the check, which fine shall in no case exceed P200,000, OR both such fine and imprisonment at the discretion of the court. In its decision in Eduardo Vaca, v. Court of Appeals (G.R. No. 131714, 16 November 1998; 298 SCRA 656, 664) the Supreme Court (Second Division) per Mr. Justice V. Mendoza, modified the sentence imposed for violation of B.P. Blg. 22 by deleting the penalty of imprisonment and imposing only the penalty of fine in an amount double the amount of the check. In justification thereof, the Court said: Petitioner are first-time offenders. They are Filipino entrepreneurs who presumably contribute to the national economy. Apparently, they brought this appeal, believing in all good faith, although mistakenly that they had not committed a violation of B.P. Blg. 22. Other wise they could simply have accepted the judgment of the trial court and

ADMINISTRATIVE CIRCULAR NO. 13-2001 February 14, 2001 TO : ALL JUDGES SUBJECT : CLARIFICATION OF ADMINISTRATIVE CIRCULAR NO. 12-2000 ON THE PENALTY FOR VIOLATION OF BATAS PAMBANSA BLG. 22, OTHERWISE KNOWN AS THE BOUNCING CHECK LAW. Clarification has been sought by concerned Judges and other parties regarding the operation of Administrative Circular 122000 issued on 21 November 2000. In particular, queries have been made regarding the authority of Judges to: 1. Impose the penalty of imprisonment for violations of Batas Pambansa Blg. 22; and 2. Impose subsidiary imprisonment in the event that the accused who is found guilty of violating

the provisions of B.P. Blg. 22, is unable to pay the fine which he is sentenced to pay considering that Administrative Circular No. 12-2000 adopted the rulings in Eduardo Vaca v. Court of Appeals (G.R. No. 131714, 16 November 1998, 298 SCRA 656) and Rosa Lim v. People of the Philippines (G.R. No. 130038, 18 September 2000) as a policy of the Supreme Court on the matter of the imposition of penalties for violations of B.P. Blg. 22, without mentioning whether subsidiary imprisonment could be resorted to in case of the accused's inability to pay the fine. The clear tenor and intention of Administrative Circular No. 12-2000 is not to remove imprisonment as an alternative penalty, but to lay down a rule of preference in the application of the penalties provided for in B.P. Blg. 22. The pursuit of this purpose clearly does not foreclose the possibility of imprisonment for violations of B.P. Blg. 22. Neither does it defeat the legislative intent behind the law. Thus, Administrative Circular No. 12-2000 establishes a rule of preference in the application of the penal provisions of B.P. Blg. 22 such that where the circumstances of both the offense and the offender clearly indicate good faith or a clear mistake of fact without taint of negligence, the imposition of a fine alone should be considered as the more appropriate penalty. Needless to say, the determination of whether the circumstances warrant the imposition of a fine alone rests solely upon the Judge. Should the Judge decide that imprisonment is the more appropriate penalty, Administrative Circular No. 12-2000 ought not be deemed a hindrance. It is, therefore, understood that: 1. Administrative Circular 12-2000 does not remove imprisonment as an alternative penalty for violations of B.P. Blg. 22; 2. The Judges concerned may, in the exercise of sound discretion, and taking into consideration the peculiar circumstances of each case, determine whether the imposition of a fine alone would best serve the interests of justice or whether forbearing to impose imprisonment would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperatives of justice;

3. Should only a fine be imposed and the accused be unable to pay the fine, there is no legal obstacle to the application of the Revised Penal Code provisions on subsidiary imprisonment. The issuance of this Administrative Circular was authorized by the Court En Banc in A.M. No. 00-11-01-SC at its session of 13 February 2001. The Clerk of Court of the Supreme Court and the Court Administrator shall immediately cause the implementation of this Administrative Circular. This Administrative Circular shall be published in a newspaper of general circulation not later than 20 February 2001. Issued this 14th day of February, 2001.