Special Penal Laws PD 1866 as amended by RA 8249 FIRST DIVISION [G.R. No. 116001.

March 14, 2001] PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. LUISITO GO y KO alias KING LOUIE, AccusedAppellant. [G.R. No. 123943. March 14, 2001] LUISITO GO y CO, Petitioner, v. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondent. DECISION YNARES-SANTIAGO, J.: On October 22, 1992, at around 10:00 oclock in the evening, SPO1 Mauro Piamonte and SPO3 Candido Liquido, members of the Intelligence and Follow-up Unit of the Calamba Police, went to the police outpost at Crossing, Calamba, Laguna, to follow up an intelligence report that methamphetamine hydrochloride, or shabu, a regulated drug, was being supplied there. Police civilian agent Ronnie Panuringan arrived and reported to them that he saw accused-appellant Luisito Go, also known as King Louie, enter the Flamingo Disco House with two women. Panuringan said that he spotted a gun tucked in accused-appellants waist. Together, the three policemen proceeded to the Flamingo, which was located about a hundred meters away from the outpost. When they arrived at the Flamingo, the police officers informed the owner that they were conducting an Operation Bakal, whereby they search for illegally possessed firearms. The owner allowed them in and told a waiter to accompany them. They went up to the second floor of the disco. The waiter turned on the lights, and the police officers saw accused-appellant and his lady companions seated at a table. They identified themselves and asked accused-appellant to stand up. When the latter did so, the policemen saw the gun tucked in his waist. SPO1 Piamonte asked for the license of the gun, but accused-appellant was unable to produce any. Instead, accusedappellant brought out the drivers license of a certain Tan Antonio Lerios. SPO1 Piamonte confiscated the gun, which was later identified as a 9mm Walther P88, Serial Number 006784, with a magazine containing ten (10) rounds of live ammunition. Accused-appellant was invited to the police precinct for questioning. On the way out of the disco, accused-appellant asked permission to bring his car, which was parked outside. The police officers accompanied accused-appellant to his car, a Honda Civic with license plate number TCM-789. Through the windshield, SPO3 Liquido noticed a Philippine National Police identification card hanging from the rearview mirror. He asked accused-appellant if he was a member of the PNP, and he said no. The police officers asked accused-appellant for his drivers license and the registration papers of the vehicle, but he was unable to produce them. When accused-appellant opened the door, SPO3 Liquido took the ID card and found that the same belonged to SPO4 Zenaida Bagadiong. The police officers saw pieces of glass tooters and tin foils on the backseat and floor of the car. They asked accused-appellant why he had these items, but he did not say anything. Instead, accused-appellant suggested that they talk the matter over, and intimated that he had money. SPO3 Liquido replied that they should talk at the police headquarters. Accused-appellant took out an attach case from the car and opened it. There were two black clutch bags inside. Accused-appellant opened the first bag, which contained shiny white substance wrapped in cellophane. The second bag contained P120,000.00 in cash.

The police officers brought accused-appellant to the police station. When they arrived at the precinct, they turned over the attach case together with the two black clutch bags to the investigator. The investigator found eight cellophane bags containing granules suspected to be shabu in one of the clutch bags. When the attach case was opened, the police officers found that it also contained three glass tooters, tin foils, an improvised burner, magazines and newspapers. [1 Consequently, two Informations were filed against accused-appellant before the Regional Trial Court of Calamba, Laguna, Branch 34. The first Information, which was docketed as Criminal Case No. 3308-92-C, charged accused-appellant with violation of Article III of R.A. 6452 (Dangerous Drugs Act), committed as follows: That on or about October 22, 1992 at Brgy. I, Crossing, Municipality of Calamba, province of Laguna, and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized/permitted by law, did then and there wilfully, unlawfully and feloniously have in his possession, control and custody 750 grams of methamphetamine hydrochloride known as SHABU, a regulated drug, in violation of the above-stated law.[2 The other Information, docketed as Criminal Case No. 3309-92-C, charged accused-appellant with violation of P.D. 1866, committed as follows: That on or about October 22, 1992, at Flamingo Beerhouse, Crossing, Municipality of Calamba, Province of Laguna and within the jurisdiction of this Honorable Court, the accused above-named not being licensed or authorized by law, did then and there wilfully, unlawfully and feloniously have in his possession, custody and control one (1) caliber .9mm marked WALTHER with serial number 006784 with one (1) magazine loaded with ten (10) live ammunitions of same caliber, in violation of the aforementioned law.[3 After a joint trial, the lower court rendered judgment convicting accused-appellant in the two criminal cases, to wit: WHEREFORE, judgment is hereby rendered finding the accused in Criminal Case No. 3308-92-C, to be GUILTY beyond reasonable doubt of having in his possession of 750.39 grams of methamphetamine hydrochloride, a regulated drug. He is hereby sentenced to a penalty of imprisonment of six (6) years and one (1) day to twelve (12) years and a fine of TWELVE THOUSAND (P12,000.00) PESOS; and in Criminal Case No. 3309-92-C, the accused is also found GUILTY beyond reasonable doubt of the crime of Illegal Possession of Firearm, and is hereby sentenced to suffer an imprisonment of reclusion perpetua. Considering that the accused appears to be detained at the Makati Police Station, jailer, Makati Police Station is hereby ordered to commit the accused to the New Bilibid Prison, Bureau of Correction, Muntinlupa, Metro Manila. The bond posted by the accused in Criminal Cases No. 3308-92-C & 3309-92-C, are hereby ordered cancelled.[4 Accused-appellant appealed his conviction in Criminal Case No. 3309-92-C directly to this Court, considering that the penalty imposed was reclusion perpetua, which appeal was docketed as G.R. No. 116001. On the other hand, accused-appellant brought his appeal of the judgment in Criminal Case No. 3308-92-C before the Court of Appeals. [5 In an Amended Decision dated February 21, 1996, the Court of Appeals affirmed accused-appellants conviction but modified the penalty imposed by the trial court by sentencing him, in addition to imprisonment of six (6) years and one (1) day to twelve (12) years, to pay a fine of six thousand pesos (P6,000.00), citing Section 8 of R.A. 6425, with subsidiary imprisonment in case of insolvency. [6 Hence, this petition for review, docketed as G.R. No. 123943.

The two cases were consolidated. [7 Accused-appellant assails the validity of his arrest and his subsequent convictions for the two crimes. Both the trial court and the Court of Appeals found that the arrest and subsequent seizure were legal. A review of the records at bar shows no reason to depart therefrom. The constitutional proscription, that no person shall be arrested without any warrant of arrest having been issued prior thereto, [8 is not a hard-and-fast rule. The Rules of Court and jurisprudence recognize exceptional cases where an arrest may be effected without a warrant. [9 Among these are when, in the presence of a peace officer, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; or when an offense has in fact just been committed, and the arresting officer has personal knowledge of facts indicating that the person to be arrested has committed it. In the cases at bar, the police saw the gun tucked in appellants waist when he stood up. The gun was plainly visible. No search was conducted as none was necessary. Accused-appellant could not show any license for the firearm, whether at the time of his arrest or thereafter. Thus, he was in effect committing a crime in the presence of the police officers. No warrant of arrest was necessary in such a situation, it being one of the recognized exceptions under the Rules. As a consequence of appellants valid warrantless arrest, he may be lawfully searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant, as provided in Rule 126, Section 12. This is a valid search incidental to the lawful arrest. [10 The subsequent discovery in his car of drug paraphernalia and the crystalline substance, which was later identified as shabu, though in a distant place from where the illegal possession of firearm was committed, cannot be said to have been made during an illegal search. As such, the seized items do not fall within the exclusionary clause, which states that any evidence obtained in violation of the right against warrantless arrest cannot be used for any purposes in any proceeding. [11 Hence, not being fruits of the poisonous tree, so to speak, the objects found at the scene of the crime, such as the firearm, the shabu and the drug paraphernalia, can be used as evidence against appellant. Besides, it has been held that drugs discovered as a result of a consented search is admissible in evidence. [12 Under P.D. 1866, the essence of the crime is the accuseds lack of license or permit to carry or possess firearm, ammunition, or explosive. Possession by itself is not prohibited by law. [13 In prosecutions for illegal possession of firearm, the element of absence of license to possess the firearm may be established through the testimony of or a certification from a representative of the Firearms and Explosives Bureau [14of the Philippine National Police (FEB-PNP), attesting that a person is not a licensee of any firearm. [15 In this case, a representative of the FEB-PNP testified that accused-appellant was not a holder of any gun license. [16 Moreover, a certification [17to that effect was presented to corroborate his testimony. These pieces of evidence suffice to establish the second element of the offense of possession of unlicensed firearms. [18 However, in a vain attempt to exculpate himself, accused-appellant presented for the first time an alleged firearm license, which was described as Annex 2 of his petition. Accused-appellants counsel admitted that said document was not presented below for some reason. [19 Whatever those reasons are, he did not specify. The document, however, is dubious. It is too late in the day for accused-appellant to proffer this very vital piece of evidence which might exculpate him. First, the reception of evidence is best addressed to the trial court because it entails questions of fact. It should be emphasized that this Court is not a trier of facts. [20 Second, the document marked as Annex 2 of the petition in G.R. No. 123943 is not the license referred to, but an order of the trial court resetting the date of arraignment. [21 Third, there is attached to the petition a firearm license [22 which is a mere photocopy and, as such, cannot be appreciated by this Court. Indeed, considering that this was the one piece of evidence which could spell accused-appellants acquittal of the unlicensed firearm charge, and assuming that, as shown in the face of the license, it was issued on October 7, 1992, there should be no reason for its non-production during

the trial. Fourth, and most importantly, the genuineness of the purported license becomes all the more suspect in view of the Certification issued by the FEO-PNP that accused-appellant was not a licensed firearm holder. Anent the certification issued by the FEO-PNP to the effect that Luisito Go y Ko was not a licensed gun holder, accused-appellant claims that he was not the person alluded to therein because the correct spelling of his middle name is not Ko but Co. Whatever the correct spelling of his name is, the fact remains that he had no license on the day the gun was found in his possession. All that he could present then was a photocopy of his application for gun license, [23 which is not the equivalent of a license. Appellant testified that he presented a firearm license to the police, [24 but he could not produce that alleged license in court. If appellant was indeed a licensed gun holder and if that license existed on October 22, 1992, he could have easily presented it to the police when he was asked for his papers inside the disco, or if the alleged license was in his car, he could have easily shown it to them when they went to his car. Otherwise, he could have easily asked his lawyer or relative to bring the license to the police precinct when he was being investigated. Despite several opportunities to produce a license, he failed to do so. In fact, during trial, he never presented any such license. And on appeal, he could only submit for the first time and for unknown reasons an alleged photocopy of a purported license. The only plausible conclusion that can be drawn is that there was no such license in the first place. Hence, his guilt of illegal possession of firearm was duly established. Accused-appellants guilt for illegal possession of shabu has likewise been proven beyond reasonable doubt. The white crystalline substance found in his possession, upon laboratory examination, were positively identified as methamphetamine hydrochloride or shabu, a regulated drug. [25 The bulk of accused-appellants defense revolves around the factual findings of the trial court. It should be recalled that factual findings of the trial court, if supported by evidence on record, and particularly when affirmed by the appellate court, are binding on this Court. [26 As discussed above, the records substantiate the trial courts and the appellate courts findings as to accusedappellants culpability. There is no reason to depart from these findings as no significant facts and circumstances were shown to have been overlooked or disregarded which, if considered, would have altered the outcome of the case. [27 Moreover, questions as to credibility of witness are matters best left to the appreciation of the trial court because of its unique opportunity of having observed that elusive and incommunicable evidence of the witness deportment on the stand while testifying, which opportunity is denied to the reviewing tribunal. [28 In the case at bar, the trial court found: The narration of the incident by the police is far more worthy of belief coming as it does from law enforcers who are presumed to have regularly performed their duties and were not demonstrated to have been unduly biased against the accused.[29 Similarly, the Court of Appeals held that: (T)he findings of fact of the trial court are generally respected by the appellate court, unless they are found to be clearly biased or arbitrary. We do not find any in these cases.[30 The crime of illegal possession of firearm, committed in 1992, regardless of whether the firearm is low powered or high powered, was punished with the penalty of reclusion perpetua to death, as provided in P.D. 1866. However, under R.A. No. 8294, which took effect on July 6, 1997, [31 the penalty was lowered to prision correcional in its maximum period and a fine of P30,000.00, if the firearm [32 is classified as low powered. In this case, the unlicensed firearm found in appellants possession was a 9mm Walther pistol, which under the amendatory law, is considered as low powered. Inasmuch as the new law imposes a reduced penalty and is, thus, more favorable to accused-appellant, the same may be given retroactive effect. [33 Therefore,

accused-appellant is sentenced to an indeterminate penalty of two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to four (4) years, two (2) months and one (1) day of prision correccional, as maximum, and a fine of P30,000.00. On the other hand, the crime of illegal possession of regulated drug, under the law in force at the time of the commission of the offense in this case, was punished by imprisonment of from six (6) years and one (1) day to twelve (12) years and a fine ranging from P6,000.00 to P12,000.00, [34 regardless of the amount of drugs involved. Hence, accused-appellant is sentenced to an indeterminate penalty of six (6) years and one (1) day, as minimum, to twelve (12) years, as maximum, and to pay a fine of P12,000.00. WHEREFORE , the decision of the trial court finding accused-appellant guilty beyond reasonable doubt of illegal possession of firearm is AFFIRMED, with the MODIFICATION that he is sentenced to an indeterminate penalty of two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to four (4) years, two (2) months and one (1) day of prision correccional, as maximum, and a fine of P30,000.00. The decision of the trial court finding accused-appellant guilty beyond reasonable doubt of illegal possession of 750.39 grams of shabu and drug paraphernalia, is likewise AFFIRMED with the MODIFICATION that he is sentenced to an indeterminate penalty of six (6) years and one (1) day, as minimum, to twelve (12) years, as maximum, and to pay a fine of P12,000.00. The shabu and subject drug paraphernalia seized from appellant shall be destroyed as provided by law. SO ORDERED.

THIRD DIVISION [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 Walpan Ladjaalam y Mihajil, also known as Warpan, appeals before us the September 17, 1998 Decision[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,[2] all signed by Assistant Regional State Prosecutor Ricardo G. Cabaron and dated September 25, 1997. The first Information[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,[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.[5] The second Information[6] charged appellant with illegal possession of firearms and ammunition. We quote it below: 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 SN311092 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.[7] The third Information,[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 above-named 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.[9] In the fourth Information, appellant was charged with illegal possession of drugs.[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.[11] After pretrial, the assailed Decision was rendered, the dispositive part of which reads: WHEREFORE, the Court finds accused WALPAN LADJAALAM y MIHAJIL a.k.a. WARPAN 1. in Criminal Case No. 14636, GUILTY BEYOND REASONABLE DOUBT of Violation of Section 15A, 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.[12] The Facts Prosecutions Version In its Brief,[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 AntiVice/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. 33-36). 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. 4546, 57-59, 73-76). Gaganting, Mirasol, Lacastesantos, Gregorio, and Obut 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. B-3) 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 AntiVice/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. 3032). Rino Bartolome Locson was an informer of the Anti-Vice/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. A-3), 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)[14]

Defenses Version Appellant Ladjaalam agrees with the narration of facts given by the lower court.[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 fire[d] at us (tsn, p. 5, id.). If he fired a gun at the policemen 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). 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).[16] The Trial Courts Ruling 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,[17] in violation of Section 3, Rule 126 of the Rules of Court.[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 Section 3, Rule 126 of the [R]evised Rules of Court and is totally null and void.[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,[20] who were participants in the raid, and confirmed by the laboratory report on the paraffin tests conducted on the firearms and appellant.[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.[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.[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)[24] used by appellant against the police elements, two M14 magazines, and three other M16 rifle magazines.[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[26] since appellant had not applied for a license to possess firearm and had not been given authority to carry firearm outside his residence.[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.[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.[29] 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.[30] The Issues 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. II 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. III The trial court erred when it ruled that the presumption of regularity in the performance of their duties [excluded] the claim of the appellant that the firearms and methamphetamine hydrochloride (i.e. shabu) were planted by the police.[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.[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.[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.[34] Viewing the site of the raid would have only delayed the proceedings.[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.[36] Here, there is no reason to disturb the exercise of that discretion.[37] Second Issue: Credibility of Prosecution Witnesses Appellant, in essence, questions the credibility of the prosecution witnesses.[38] Suffice it to state that the trial courts assessment of their credibility is generally accorded respect, even finality.[39] After carefully examining the records and finding no material inconsistencies to support appellants claim, we cannot exempt this case from the general rule.[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.[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. xxxxxxxxx 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. xxxxxxxxx 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. xxxxxxxxx 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. xxxxxxxxx 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.[42] What happened thereafter was narrated by Senior Police Officer Ricardo Lacastesantos,[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. xxxxxxxxx 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]. xxxxxxxxx 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.[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. xxxxxxxxx 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.[45] (emphasis supplied) Duly proven from the foregoing were the two elements[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 Certification[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.[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.[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 frame-up. 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.[50] Absent any showing of an improper motive on the part of the police officers,[51] coupled with the presumption of regularity in the performance of their duty, such defense cannot be given much credence.[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.[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.[54] Crime and Punishment 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 assault[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.[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.[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.[58] Illegal Possession of Firearms 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,[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.[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 proviso[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 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.[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.[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.[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. Jayson[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 M14 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,[66] like alarm and scandal[67] or slight physical injuries,[68] both of which are punishable by arresto menor.[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 jurisprudence[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.

SECOND DIVISION ANGEL CELINO, SR., - versus COURT OF APPEALS, CEBU CITY, HON. DELANO F. VILLARUZ, Presiding Judge, Branch 16, Regional Trial Court, Capiz, Roxas City, and PEOPLE OF THE PHILIPPINES, Respondents. G.R. No. 170562 Present: QUISUMBING,* J., Chairperson, CARPIO,** CARPIO MORALES, TINGA, and VELASCO, JR., JJ. Promulgated: June 29, 2007 x-----------------------------------------------------------------------------------------x DECISION CARPIO MORALES, J.: This petition for certiorari under Rule 65 of the Rules of Court assails the Court of Appeals Decision dated April 18, 2005[1] affirming the trial courts denial of petitioner Angel Celino, Sr.s Motion to Quash; and Resolution dated September 26, 2005[2] denying petitioners Motion for Reconsideration of the said Decision. The following facts are not disputed: Two separate informations were filed before the Regional Trial Court of Roxas City charging petitioner with violation of Section 2(a) of COMELEC Resolution No. 6446 (gun ban),[3] and Section 1, Paragraph 2 of Republic Act No. (R.A.) 8294[4] (illegal possession of firearm), as follows: Criminal Case No. C-137-04 Petitioner,

That on or about the 12th day of May, 2004, in the City of Roxas, Philippines, and within the jurisdiction of this Honorable Court, the said accused, did then and there willfully, unlawfully and knowingly carry outside of his residence an armalite rifle colt M16 with serial number 3210606 with two (2) long magazines each loaded with thirty (30) live ammunitions of the same caliber during the election period December 15, 2005 to June 9, 2004 without first having obtained the proper authority in writing from the Commission on Elections, Manila, Philippines.

CONTRARY TO LAW. [5]

Criminal Case No. C-138-04 That on or about the 12th day of May, 2004, in the City of Roxas, Philippines, and within the jurisdiction of this Honorable Court, the said accused, did then and there willfully, unlawfully and knowingly have in his possession and control one (1) armalite rifle colt M16 with serial number 3210606 with two (2) long magazines each loaded with thirty (30) live ammunitions of the same caliber without first having obtained the proper license or necessary permit to possess the said firearm. CONTRARY TO LAW.[6] Upon arraignment in Criminal Case No. C-138-04, petitioner pleaded not guilty to the gun ban violation charge.[7] Prior to his arraignment in Criminal Case No. C-137-04, petitioner filed a Motion to Quash[8] contending that he cannot be prosecuted for illegal possession of firearms x x x if he was also charged of having committed another crime of [sic] violating the Comelec gun ban under the same set of facts x x x.[9] By Order of July 29, 2004,[10] the trial court denied the Motion to Quash on the basis of this Courts[11] affirmation in Margarejo v. Hon. Escoses[12] of therein respondent judges denial of a similar motion to quash on the ground that the other offense charged x x x is not one of those enumerated under R.A. 8294 x x x. [13] Petitioners Motion for Reconsideration was likewise denied by September 22, 2004 Resolution,[14] hence, petitioner filed a Petition for Certiorari[15] before the Court of Appeals. By Decision dated April 18, 2005,[16] the appellate court affirmed the trial courts denial of the Motion to Quash. Petitioners May 9, 2005 Motion for Reconsideration[17] having been denied by Resolution of September 26, 2005,[18] petitioner filed the present petition. The petition fails. Petitioners remedy to challenge the appellate courts decision and resolution was to file a petition for review on certiorari under Rule 45 on or before October 20, 2005 or 15 days after he received a copy of the appellate court's resolution on October 5, 2005[19]denying his motion for reconsideration. Instead, petitioner chose to file the present petition under Rule 65 only on December 2, 2005,[20] a good 58 days after he received the said resolution. Certiorari cannot be used as a substitute for lost appeal. Certiorari lies only when there is no appeal nor any plain, speedy, and adequate remedy in the ordinary course of law. Why the question being raised by petitioner, i.e., whether the appellate court committed grave abuse of discretion, could not have been raised on appeal, no reason therefor has been advanced.[21]

While this Court, in accordance with the liberal spirit pervading the Rules of Court and in the interest of justice, has the discretion to treat a petition for certiorari as having been filed under Rule 45, especially if filed within the reglementary period under said Rule, it finds nothing in the present case to warrant a liberal application of the Rules, no justification having been proffered, as just stated, why the petition was filed beyond the reglementary period,[22] especially considering that it is substantially just a replication of the petition earlier filed before the appellate court. Technicality aside, the petition fails just the same. The relevant provision of R.A. 8294 reads: 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. x x x. "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. "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 d'etat, such violation shall be absorbed as an element of the crime of rebellion, or insurrection, sedition, or attempted coup d'etat. xxxx (Underscoring supplied) The crux of the controversy lies in the interpretation of the underscored proviso. Petitioner, citing Agote v. Lorenzo,[23] People v. Ladjaalam,[24] and other similar cases,[25] contends that the mere filing of an information for gun ban violation against him necessarily bars his prosecution for illegal possession of firearm. The Solicitor General contends otherwise on the basis of Margarejo v. Hon. Escoses [26] and People v. Valdez.[27] In Agote,[28] this Court affirmed the accuseds conviction for gun ban violation but exonerated him of the illegal possession of firearm charge because it cannot but set aside petitioners 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.[29] Agote is based on Ladjaalam[30] where this Court held: x x x A simple reading [of RA 8294] 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. x x x xxxx x x x 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. [31] The law is indeed clear. The accused can be convicted of illegal possession of firearms, provided no other crime was committed by the person arrested. The word committed taken in its ordinary sense, and in light of the Constitutional presumption of innocence,[32] necessarily implies a prior determination of guilt by final conviction resulting from successful prosecution or voluntary admission.[33] Petitioners reliance on Agote, Ladjaalam, Evangelista, Garcia, Pangilinan, Almeida, and Bernal is, therefore, misplaced. In each one of these cases, the accused were exonerated of illegal possession of firearms because of their commission, as shown by their conviction, of some other crime.[34] In the present case, however, petitioner has only been accused of committing a violation of the COMELEC gun ban. As accusation is not synonymous with guilt, there is yet no showing that petitioner did in fact commit the other crime charged.[35] Consequently, the proviso does not yet apply. More applicable is Margarejo[36] where, as stated earlier, this Court affirmed the denial of a motion to quash an information for illegal possession of firearm on the ground that the other offense charged [i.e., violation of gun ban] x x x is not one of those enumerated under R.A. 8294 x x x.[37] in consonance with the earlier pronouncement in Valdez[38] that all pending cases involving illegal possession of firearm should continue to be prosecuted and tried if no other crimes expressly indicated in Republic Act No. 8294 are involved x x x.[39] In sum, when the other offense involved is one of those enumerated under R.A. 8294, any information for illegal possession of firearm should be quashed because the illegal possession of firearm would have to be tried together with such other offense, either considered as an aggravating circumstance in murder or homicide,[40] or absorbed as an element of rebellion, insurrection, sedition or attempted coup detat.[41] Conversely, when the other offense involved is not one of those enumerated under R.A. 8294, then the separate case for illegal possession of firearm should continue to be prosecuted. Finally, as a general rule, the remedy of an accused from the denial of his motion to quash is for him to go to trial on the merits, and if an adverse decision is rendered, to appeal therefrom in the manner authorized by law.[42] Although the special civil action for certiorari may be availed of in case there is a grave abuse of discretion,[43] the appellate court correctly dismissed the petition as that vitiating error is not attendant in the present case. WHEREFORE, the petition is DISMISSED. SO ORDERED.

CA 142 FIRST DIVISION [G.R. No. 112170. April 10, 1996] CESARIO URSUA, petitioner, vs. COURT OF APPEALS AND PEOPLE OF THE PHILIPPINES, respondents. SYLLABUS 1. STATUTORY CONSTRUCTION; STATUTES; CONSTRUED WITH REFERENCE TO THE INTENDED SCOPE AND PURPOSE. - Time and again we have decreed that statutes are to be construed in the light of the purposes to be achieved and the evils sought to be remedied. Thus in construing a statute the reason for its enactment should be kept in mind and the statute should be construed with reference to the intended scope and purpose. The court may consider the spirit and reason of the statute, where a literal meaning would lead to absurdity, contradiction, injustice, or would defeat the clear purpose of the lawmakers. 2. ID.; COMMONWEALTH ACT 142, AS AMENDED (AN ACT TO REGULATE THE USE OF ALIASES); PURPOSE IS TO REGULATE THE USE OF ALIASES IN BUSINESS TRANSACTION. - The objective and purpose of C.A. No. 142 have their origin and basis in Act No. 3883, An Act to Regulate the Use in Business Transactions of Names other than True Names, Prescribing the Duties of the Director of the Bureau of Commerce and Industry in its Enforcement, Providing Penalties for Violations thereof, and for other purposes, which was approved on 14 November 1931 and amended by Act No. 4147, approved on 28 November 1934. The enactment of C.A. No. 142 as amended was made primarily to curb the common practice among the Chinese of adopting scores of different names and aliases which created tremendous confusion in the field of trade. Such a practice almost bordered on the crime of using fictitious names which for obvious reasons could not be successfully maintained against the Chinese who, rightly or wrongly, claimed they possessed a thousand and one names. C.A. No. 142 thus penalized the act of using an alias name, unless such alias was duly authorized by proper judicial proceedings and recorded in the civil register. 3. CRIMINAL LAW; COMMONWEALTH ACT 142, AS AMENDED (AN ACT TO REGULATE THE USE OF ALIASES); ALIAS, DEFINED. - An alias is a name or names used by a person or intended to be used by him publicly and habitually usually in business transactions in addition to his real name by which he is registered at birth or baptized the first time or substitute name authorized by a competent authority. A mans name is simply the sound or sounds by which he is commonly designated by his fellows and by which they distinguish him but sometimes a man is known by several different names and thse are known as aliases. 4. ID.; ID.; USE OF FICTITIOUS NAME IN A SINGLE TRANSACTION WITHOUT INTENDING TO BE KNOWN BY THIS NAME IN ADDITION TO HIS REAL NAME, NOT A VIOLATION THEREOF. - The use of a fictitious name or a different name belonging to another person in a single instance without any sign or indication that the user intends to be known by this name in addition to his real name from that day forth does not fall within the prohibition contained in C.A. No. 142 as amended. 5. ID.; ID.; ID.; CASE AT BAR. - This is so in the case at bench. It is not disputed that petitioner introduced himself in the Office of the Ombudsman as Oscar Perez, which was the name of the messenger of his lawyer who should have brought the letter to that office in the first place

instead of petitioner. He did so while merely serving the request of his lawyer to obtain a copy of the complaint in which petitioner was a respondent. There is no question then that Oscar Perez is not an alias name of petitioner. There is no evidence showing that he had used or was intending to use that name as his second name in addition to his real name. The use of the name Oscar Perez was made by petitioner in an isolated transaction where he was not even legally required to expose his real identity. For, even if he had identified himself properly at the Office of the Ombudsman, petitioner would still be able to get a copy of the complaint as a matter of right, and the Office of the Ombudsman could not refuse him because the complaint was part of public records hence open to inspection and examination by anyone under the proper circumstances. While the act of petitioner may be covered by other provisions of law, such does not constitute an offense within the concept of C.A. No. 142 as amended under which he is prosecuted. The confusion and fraud in business transactions which the anti-alias law and its related statutes seek to prevent are not present here as the circumstances are peculiar and distinct from those contemplated by the legislature in enacting C.A. No. 142 as amended. There exists a valid presumption that undesirable consequences were never intended by a legislative measure and that a construction of which the statute is fairly susceptible is favored, which will avoid all objectionable, mischievous, indefensible, wrongful, evil and injurious consequences. Indeed, our mind cannot rest easy on the proposition that petitioner should be convicted on a law that does not clearly penalize the act done by him. Wherefore, the questioned decision of the Court of Appeals affirming that of the Regional Trial Court of Davao City is REVERSED and SET ASIDE and petitioner CESARIO URSUA is ACQUITTED of the crime charged. 6. STATUTORY CONSTRUCTION; A PENAL STATUTE LIKE COMMONWEALTH ACT 142, AS AMENDED, CONSTRUED STRICTLY AGAINST THE STATE AND IN FAVOR OF THE ACCUSED. - As C.A. No. 142 is a penal statute, it should be construed strictly against the State and in favor of the accused. The reason for this principle is the tenderness of the law for the rights of individuals and the object is to establish a certain rule by conformity to which mankind would be safe, and the discretion of the court limited. APPEARANCES OF COUNSEL Ceferino Padua Law Office for petitioner. The Solicitor General for respondents. DECISION BELLOSILLO, J.: This is a petition for a review of the decision of the Court of Appeals which affirmed the conviction of petitioner by the Regional Trial Court of Davao City for violation of Sec. 1 of C.A. No. 142, as amended by R.A. No. 6085, otherwise known as An Act to Regulate the Use of Alliases.[1] Petitioner Cesario Ursua was a Community Environment and Natural Resources Officer assigned in Kidapawan, Cotabato. On 9 May 1989 the Provincial Governor of Cotabato requested the Office of the Ombudsman in Manila to conduct an investigation on a complaint for bribery, dishonesty, abuse of authority and giving of unwarranted benefits by petitioner and other officials of the Department of Environment and Natural Resources. The complaint was initiated by the Sangguniang Panlalawigan of Cotabato through a resolution advising the Governor to report the involvement of petitioner and others in the illegal cutting of mahogany trees and hauling of illegally-cut logs in the area.[2]

On 1 August 1989 Atty. Francis Palmones, counsel for petitioner, wrote the Office of the Ombudsman in Davao City requesting that he be furnished copy of the complaint against petitioner. Atty. Palmones then asked his client Ursua to take his letter-request to the Office of the Ombudsman because his law firms messenger, Oscar Perez, had to attend to some personal matters. Before proceeding to the Office of the Ombudsman petitioner talked to Oscar Perez and told him that he was reluctant to personally ask for the document since he was one of the respondents before the Ombudsman. However, Perez advised him not to worry as he could just sign his (Perez) name if ever he would be required to acknowledge receipt of the complaint.[3] When petitioner arrived at the Office of the Ombudsman in Davao City he was instructed by the security officer to register in the visitors logbook. Instead of writing down his name petitioner wrote the name Oscar Perez after which he was told to proceed to the Administrative Division for the copy of the complaint he needed. He handed the letter of Atty. Palmones to the Chief of the Administrative Division, Ms. Loida Kahulugan, who then gave him a copy of the complaint, receipt of which he acknowledged by writing the name Oscar Perez.[4] Before petitioner could leave the premises he was greeted by an acquaintance, Josefa Amparo, who also worked in the same office. They conversed for a while then he left. When Loida learned that the person who introduced himself as Oscar Perez was actually petitioner Cesario Ursua, a customer of Josefa Amparo in her gasoline station, Loida reported the matter to the Deputy Ombudsman who recommended that petitioner be accordingly charged. On 18 December 1990, after the prosecution had completed the presentation of its evidence, petitioner without leave of court filed a demurrer to evidence alleging that the failure of the prosecution to prove that his supposed alias was different from his registered name in the local civil registry was fatal to its cause. Petitioner argued that no document from the local civil registry was presented to show the registered name of accused which according to him was a condition sine qua non for the validity of his conviction. The trial court rejected his contentions and found him guilty of violating Sec. 1 of C.A. No. 142 as amended by R. A. No. 6085. He was sentenced to suffer a prison term of one (1) year and one (1) day of prision correccional minimum as minimum, to four (4) years of prision correccional medium as maximum, with all the accessory penalties provided for by law, and to pay a fine of P4,000.00 plus costs. Petitioner appealed to the Court of Appeals. On 31 May 1993 the Court of Appeals affirmed the conviction of petitioner but modified the penalty by imposing an indeterminate term of one (1) year as minimum to three (3) years as maximum and a fine of P5,000.00. Petitioner now comes to us for review of his conviction as. he reasserts his innocence. He contends that he has not violated C.A. No. 142 as amended by R. A. No. 6085 as he never used any alias name; neither is Oscar Perez his alias. An alias, according to him, is a term which connotes the habitual use of another name by which a person is also known. He claims that he has never been known as Oscar Perez and that he only used such name on one occasion and it was with the express consent of Oscar Perez himself. It is his position that an essential requirement for a conviction under C.A. No. 142 as amended by R. A. No. 6085 has not been complied with when the prosecution failed to prove that his supposed alias was different from his registered name in the Registry of Births. He further argues that the Court of Appeals erred in not considering the defense theory that he was charged under the wrong law.[5] Time and again we have decreed that statutes are to be construed in the light of the purposes to be achieved and the evils sought to be remedied. Thus in construing a statute the reason for its enactment should be kept in mind and the statute should be construed with reference to the intended scope and purpose.[6] The court may consider the spirit and reason of the statute,

where a literal meaning would lead to absurdity, contradiction, injustice, or would defeat the clear purpose of the lawmakers.[7] For a clear understanding of the purpose of C.A. No. 142 as amended, which was allegedly violated by petitioner, and the surrounding circumstances under which the law was enacted, the pertinent provisions thereof, its amendments and related statutes are herein cited. C.A. No. 142, which was approved on 7 November 1936, and before its amendment by R. A. No. 6085, is entitled An Act to Regulate the Use of Aliases. It provides as follows: Section 1. Except as a pseudonym for literary purposes, no person shall use any name different from the one with which he was christened or by which he has been known since his childhood, or such substitute name as may have been authorized by a competent court. The name shall comprise the patronymic name and one or two surnames. Section 2. Any person desiring to use an alias or aliases shall apply for authority therefor in proceedings like those legally provided to obtain judicial authority for a change of name. Separate proceedings shall be had for each alias, and each new petition shall set forth the original name and the alias or aliases for the use of which judicial authority has been obtained, specifying the proceedings and the date on which such authority was granted. Judicial authorities for the use of aliases shall be recorded in the proper civil register x x x. The above law was subsequently amended by R. A. No. 6085, approved on 4 August 1969. As amended, C.A. No. 142 now reads: Section 1. Except as a pseudonym solely for literary, cinema, television, radio or other entertainment purposes and in athletic events where the use of pseudonym is a normally accepted practice, no person shall use any name different from the one with which he was registered at birth in the office of the local civil registry or with which he was baptized for the first time, or in case of an alien, with which he was registered in the bureau of immigration upon entry; or such substitute name as may have been authorized by a competent court: Provided, That persons whose births have not been registered in any local civil registry and who have not been baptized, have one year from the approval of this act within which to register their names in the civil registry of their residence. The name shall comprise the patronymic name and one or two surnames. Sec. 2. Any person desiring to use an alias shall apply for authority therefor in proceedings like those legally provided to obtain judicial authority for a change of name and no person shall be allowed to secure such judicial authority for more than one alias. The petition for an alias shall set forth the persons baptismal and family name and the name recorded in the civil registry, if different, his immigrants name, if an alien, and his pseudonym, if he has such names other than his original or real name, specifying the reason or reasons for the desired alias. The judicial authority for the use of alias, the christian name and the alien immigrants name shall be recorded in the proper local civil registry, and no person shall use any name or names other than his original or real name unless the same is or are duly recorded in the proper local civil registry. The objective and purpose of C. A. No. 142 have their origin and basis in Act No. 3883, An Act to Regulate the Use in Business Transactions of Names other than True Names, Prescribing the Duties of the Director of the Bureau of Commerce And Industry in its Enforcement, Providing Penalties for Violations thereof, and for other purposes, which was approved on 14 November 1931 and amended by Act No. 4147, approved on 28 November 1934.[8] The pertinent provisions of Act No. 3883 as amended follow -Section 1. It shall be unlawful for any person to use or sign, on any written or printed receipt including receipt for tax or business or any written or printed contract not verified by a notary public or on any written or printed evidence of any agreement or business transactions, any name used in connection with his business other than his true name, or keep conspicuously exhibited in plain view in or at the place where his business is conducted, if he is engaged in a business, any sign announcing a firm name or business name

or style without first registering such other name, or such firm name, or business name or style in the Bureau of Commerce together with his true name and that of any other person having a joint or common interest with him in such contract agreement, business transaction, or business x x x. For a bit of history, the enactment of C.A. No. 142 as amended was made primarily to curb the common practice among the Chinese of adopting scores of different names and aliases which created tremendous confusion in the field of trade. Such a practice almost bordered on the crime of using fictitious names which for obvious reasons could not be successfully maintained against the Chinese who, rightly or wrongly, claimed they possessed a thousand and one names. CA. No. 142 thus penalized the act of using an alias name, unless such alias was duly authorized by proper judicial proceedings and recorded in the civil register.[9] In Yu Kheng Chiau v. Republic[10] the Court had occasion to explain the meaning, concept and ill effects of the use of an alias within the purview of C.A. No. 142 when we ruled There can hardly be any doubt that petitioners use of alias Kheng Chiau Young in addition to his real name Yu Cheng Chiau would add to more confusion. That he is known in his business, as manager of the Robert Reid, Inc., by the former name, is not sufficient reason to allow him its use. After all, petitioner admitted that he is known to his associates by both names. In fact, the Anselmo Trinidad, Inc., of which he is a customer, knows him by his real name. Neither would the fact that he had encountered certain difficulties in his transactions with government offices which required him to explain why he bore two names, justify the grant of his petition, for petitioner could easily avoid said difficulties by simply using and sticking only to his real name Yu Cheng Chiau. The fact that petitioner intends to reside permanently in the Philippines, as shown by his having filed a petition for naturalization in Branch V of the abovementioned court, argues the more against the grant of his petition, because if naturalized as a Filipino citizen, there would then be no necessity for his further using said alias, as it would be contrary to the usual Filipino way and practice of using only one name in ordinary as well as business transactions. And, as the lower court correctly observed, if he believes (after he is naturalized) that it would be better for him to write his name following the Occidental method, he can easily file a petition for change of name, so that in lieu of the name Yu Kheng Chian, he can, abandoning the same, ask for authority to adopt the name Kheng Chiau Young. All things considered, we are of the opinion and so hold, that petitioner has not shown satisfactory proper and reasonable grounds under the aforequoted provisions of Commonwealth Act No. 142 and the Rules of Court, to warrant the grant of his petition for the use of an alias name. Clearly therefore an alias is a name or names used by a person or intended to be used by him publicly and habitually usually in business transactions in addition to his real name by which he is registered at birth or baptized the first time or substitute name authorized by a competent authority. A mans name is simply the sound or sounds by which he is commonly designated by his fellows and by which they distinguish him but sometimes a man is known by several different names and these are known as aliases.[11] Hence, the use of a fictitious name or a different name belonging to another person in a single instance without any sign or indication that the user intends to be known by this name in addition to his real name from that day forth does not fall within the prohibition contained in C.A. No. 142 as amended. This is so in the case at bench. It is not disputed that petitioner introduced himself in the Office of the Ombudsman as Oscar Perez, which was the name of the messenger of his lawyer who should have brought the letter to that office in the first place instead of petitioner. He did so while merely serving the request of his lawyer to obtain a copy of the complaint in which petitioner was a respondent. There is no question then that Oscar Perez is not an alias name of petitioner. There is no evidence showing

that he had used or was intending to use that name as his second name in addition to his real name. The use of the name Oscar Perez was made by petitioner in an isolated transaction where he was not even legally required to expose his real identity. For, even if he had identified himself properly at the Office of the Ombudsman, petitioner would still be able to get a copy of the complaint as a matter of right, and the Office of the Ombudsman could not refuse him because the complaint was part of public records hence open to inspection and examination by anyone under the proper circumstances. While the act of petitioner may be covered by other provisions of law, such does not constitute an offense within the concept of C.A. No. 142 as amended under which he is prosecuted. The confusion and fraud in business transactions which the anti-alias law and its related statutes seek to prevent are not present here as the circumstances are peculiar and distinct from those contemplated by the legislature in enacting C.A. No. 142 as amended. There exists a valid presumption that undesirable consequences were never intended by a legislative measure and that a construction of which the statute is fairly susceptible is favored, which will avoid all objectionable, mischievous, indefensible, wrongful, evil and injurious consequences.[12] Moreover, as C.A. No. 142 is a penal statute, it should be construed strictly against the State and in favor of the accused.[13] The reason for this principle is the tenderness of the law for the rights of individuals and the object is to establish a certain rule by conformity to which mankind would be safe, and the discretion of the court limited.[14] Indeed, our mind cannot rest easy on the proposition that petitioner should be convicted on a law that does not clearly penalize the act done by him. WHEREFORE, the questioned decision of the Court of Appeals affirming that of the Regional Trial Court of Davao City is REVERSED and SET ASIDE and petitioner CESARIO URSUA is ACQUITTED of the crime charged. SO ORDERED. EN BANC

PEOPLE OF THE PHILIPPINES, Petitioner,

- versus -

JOSEPH EJERCITO ESTRADA and THE HONORABLE SPECIAL DIVISION OF THE SANDIGANBAYAN, Respondents.

G.R. Nos. 164368-69

Present:

PUNO, C.J., Quisumbing, Ynares-Santiago, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, TINGA, CHICO-NAZARIO, velasco, JR., NACHURA, leonardo-de castro, brion, and PERALTA, JJ.

Promulgated:

April 2, 2009

x-----------------------------------------------------------------------------------------------x DECISION BRION, J.: The People of the Philippines (the People) filed this Petition for Review on Certiorari[1] to seek the reversal of the Sandiganbayans Joint Resolution dated July 12, 2004, granting respondent Joseph Ejercito Estradas (Estrada) demurrer to evidence in Crim. Case No. 26565.[2] THE FACTS

On April 4, 2001, an Information for plunder (docketed as Crim. Case No. 26558) was filed with the Sandiganbayan against respondent Estrada, among other accused. A separate Information for illegal use of alias, docketed as Crim. Case No. 26565, was likewise filed against Estrada. The Amended Information in Crim. Case No. 26565 reads:

That on or about 04 February 2000, or sometime prior or subsequent thereto, in the City of Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being then President of the Republic of the Philippines, without having been duly authorized, judicially or administratively, taking advantage of his position and committing the offense in relation to office, i.e., in order to CONCEAL THE ill-gotten wealth HE ACQUIRED during his tenure and his true identity as THE President of the Republic of the Philippines, did then and there, willfully, unlawfully and criminally REPRESENT HIMSELF AS JOSE VELARDE IN SEVERAL TRANSACTIONS AND use and employ the SAID alias Jose Velarde which IS neither his registered name at birth nor his baptismal name, in signing documents with Equitable PCI Bank and/or other corporate entities.

CONTRARY TO LAW.

Crim. Case Nos. 26565 and 26558 were subsequently consolidated for joint trial. Still another Information, this time for perjury and docketed as Crim. Case No. 26905, was filed with the

Sandiganbayan against Estrada. This was later consolidated, too, with Crim. Cases No. 26558 and 26565.

Estrada was subsequently arrested on the basis of a warrant of arrest that the Sandiganbayan issued.

On January 11, 2005, we ordered the creation of a Special Division in the Sandiganbayan to try, hear, and decide the charges of plunder and related cases (illegal use of alias and perjury) against respondent Estrada.[3]

At the trial, the People presented testimonial and documentary evidence to prove the allegations of the Informations for plunder, illegal use of alias, and perjury. The Peoples evidence for the illegal alias charge, as summarized by the Sandiganbayan, consisted of:

A. The testimonies of Philippine Commercial and Industrial Bank (PCIB) officers Clarissa G. Ocampo (Ocampo) and Atty. Manuel Curato (Curato) who commonly declared that on February 4, 2000, Estrada opened a numbered trust account (Trust Account C-163) with PCIB and signed as Jose Velarde in the account opening documents; both Ocampo and Curato also testified that Aprodicio Lacquian and Fernando Chua were present on that occasion;

B. (1) The testimony of PCIB-Greenhills Branch Manager Teresa Barcelan, who declared that a certain Baby Ortaliza (Ortaliza) transacted several times with her; that Ortaliza deposited several checks in PCIB Savings Account No. 0160-62502-5 under the account name Jose Velarde on the following dates (as evidenced by deposit receipts duly marked in evidence): a. b. c. d. e. f. g. h. i. j. k. 20 October 1999 8 November 1999 22 November 1999 24 November 1999 25 November 1999 20 December 1999 21 December 1999 29 December 1999 4 January 2000 10 May 2000 6 June 2000 (Exh. MMMMM) (Exh. LLLLL ) (Exh. NNNNN) (Exh. OOOOO) (Exh. PPPPP) (Exh. QQQQQ) (Exh. RRRRR) (Exh. SSSSS) (Exh. TTTTT) (Exh. UUUUU) (Exh. VVVVV)

l.

25 July 2000

(Exh. WWWWW)

(2) Documents duly identified by witnesses showing that Lucena Ortaliza was employed in the Office of the Vice President and, later on, in the Office of the President when Estrada occupied these positions and when deposits were made to the Jose Velarde Savings Account No. 016062502-5.

The People filed its Formal Offer of Exhibits in the consolidated cases, which the Sandiganbayan admitted into evidence in a Resolution dated October 13, 2003.[4] The accused separately moved to reconsider the Sandiganbayan Resolution;[5] the People, on the other hand, filed its Consolidated Comment/Opposition to the motions.[6] The Sandiganbayan denied the motions in its Resolution dated November 17, 2003.[7]

After the People rested in all three cases, the defense moved to be allowed to file a demurrer to evidence in these cases.[8] In its Joint Resolution dated March 10, 2004,[9] the Sandiganbayan only granted the defense leave to file demurrers in Crim. Case Nos. 26565 (illegal use of alias) and 26905 (perjury).

Estrada filed separate Demurrers to Evidence for Crim. Case Nos. 26565 and 26905.[10] His demurrer to evidence for Crim. Case No. 26565 (illegal use of alias) was anchored on the following grounds[11]:

1. Of the thirty-five (35) witnesses presented by the prosecution, only two (2) witnesses, Ms. Clarissa Ocampo and Atty. Manuel Curato, testified that on one occasion (4 February 2000), they saw movant use the name Jose Velarde;

2. The use of numbered accounts and the like was legal and was prohibited only in late 2001 as can be gleaned from Bangko Sentral Circular No. 302, series of 2001, dated 11 October 2001;

3. There is no proof of public and habitual use of alias as the documents offered by the prosecution are banking documents which, by their nature, are confidential and cannot be revealed without following proper procedures; and

4.

The use of alias is absorbed in plunder.

The People opposed the demurrers through a Consolidated Opposition that presented the following arguments:[12]

1. That the use of fictitious names in bank transaction was not expressly prohibited until BSP No. 302 is of no moment considering that as early as Commonwealth Act No. 142, the use of alias was already prohibited. Movant is being prosecuted for violation of C.A. No. 142 and not BSP Circular No. 302;

2.

Movants reliance on Ursua vs. Court of Appeals (256 SCRA 147 [1996]) is misplaced;

3. Assuming arguendo that C.A. No. 142, as amended, requires publication of the alias and the habitual use thereof, the prosecution has presented more than sufficient evidence in this regard to convict movant for illegal use of alias; and

4. Contrary to the submission of movant, the instant case of illegal use of alias is not absorbed in plunder.

Estrada replied to the Consolidated Opposition through a Consolidated Reply Opposition.

THE ASSAILED SANDIGANBAYANS RULING

The Sandiganbayan issued on July 12, 2004 the Resolution now assailed in this petition. The salient points of the assailed resolution are:

First the coverage of Estradas indictment. The Sandiganbayan found that the only relevant evidence for the indictment are those relating to what is described in the Information i.e., the testimonies and documents on the opening of Trust Account C-163 on February 4, 2000. The Sandiganbayan reasoned out that the use of the disjunctive or between on or about 04 February 2000 and sometime prior or subsequent thereto means that the act/s allegedly committed on February 4, 2000 could have actually taken place prior to or subsequent thereto; the use of the conjunctive was simply the prosecutions procedural tool to guard against any variance between the date stated in the Information and that proved during the trial in a situation in which time was not a material ingredient of the offense; it does not mean and cannot be read as a roving commission that includes acts and/or events separate and distinct from those

that took place on the single date on or about 04 February 2000 or sometime prior or subsequent thereto. The Sandiganbayan ruled that the use of the disjunctive or prevented it from interpreting the Information any other way.

Second the Peoples failure to present evidence that proved Estradas commission of the offense. The Sandiganbayan found that the People failed to present evidence that Estrada committed the crime punished under Commonwealth Act No. 142, as amended by Republic Act (R.A.) No. 6085 (CA 142), as interpreted by the Supreme Court in Ursua v. Court of Appeals.[13] It ruled that there is an illegal use of alias within the context of CA 142 only if the use of the alias is public and habitual. In Estradas case, the Sandiganbayan noted, the application of the principles was not as simple because of the complications resulting from the nature of the transaction involved the alias was used in connection with the opening of a numbered trust account made during the effectivity of R.A. No. 1405, as amended,[14] and prior to the enactment of Republic R.A. No. 9160.[15]

Estrada did not publicly use the alias Jose Velarde:

a. Estradas use of the alias Jose Velarde in his dealings with Dichavez and Ortaliza after February 4, 2000 is not relevant in light of the conclusion that the acts imputed to Estrada under the Information were the act/s committed on February 4, 2000 only. Additionally, the phrase, Estrada did represent himself as Jose Velarde in several transactions, standing alone, violates Estradas right to be informed of the nature and the cause of the accusation, because it is very general and vague. This phrase is qualified and explained by the succeeding phrase and use and employ the said alias Jose Velarde which is neither his registered name at birth nor his baptismal name, in signing documents with Equitable PCI Bank and/or other corporate entities. Thus, Estradas representations before persons other than those mentioned in the Information are immaterial; Ortaliza and Dichavez do not fall within the Equitable PCI Bank and/or other corporate entities specified in the Information. Estradas representations with Ortaliza and Dichavez are not therefore covered by the indictment.

b. The Sandiganbayan rejected the application of the principle in the law of libel that mere communication to a third person is publicity; it reasoned out that that the definition of publicity is not limited to the way it is defined under the law on libel; additionally, the application of the libel law definition is onerous to the accused and is precluded by the ruling in Ursua that CA No. 142, as a penal statute, should be construed strictly against the State and favorably for the accused. It ruled that the definition under the law on libel, even if it applies, considers a communication to a third person covered by the privileged communication rule to be nonactionable. Estradas use of the alias in front of Ocampo and Curato is one such privileged communication under R.A. No. 1405, as amended. The Sandiganbayan said:

Movants act of signing Jose Velarde in bank documents being absolutely confidential, the witnessing thereof by bank officers who were likewise sworn to secrecy by the same law cannot be considered as public as to fall within the ambit of CA 142 as amended. On account of the absolute confidentiality of the transaction, it cannot be said that movant intended to be known by this name in addition to his real name. Confidentiality and secrecy negate publicity. Ursua instructs:

Hence, the use of a fictitious name or a different name belonging to another person in a single instance without any sign or indication that the user intends to be known by this name in addition to his real name from that day forth does not fall within the prohibition in C.A. No. 142 as amended.

c. The Sandiganbayan further found that the intention not to be publicly known by the name Jose Velarde is shown by the nature of a numbered account a perfectly valid banking transaction at the time Trust Account C-163 was opened. The opening, too, of a numbered trust account, the Sandiganbayan further ruled, did not impose on Estrada the obligation to disclose his real identity the obligation R.A. No. 6713 imposes is to file under oath a statement of assets and liabilities.[16] Reading CA No. 142, R.A. No. 1405 and R.A. No. 6713 together, Estrada had the absolute obligation to disclose his assets including the amount of his bank deposits, but he was under no obligation at all to disclose the other particulars of the bank account (such as the name he used to open it).

Third the effect of the enactment of R.A. No. 9160.[17] The Sandiganbayan said that the absolute prohibition in R.A. No. 9160 against the use of anonymous accounts, accounts under fictitious names, and all other similar accounts, is a legislative acknowledgment that a gaping hole previously existed in our laws that allowed depositors to hide their true identities. The Sandiganbayan noted that the prohibition was lifted from Bangko Sentral ng Pilipinas (BSP) Circular No. 251 dated July 7, 2000 another confirmation that the opening of a numbered trust account was perfectly legal when it was opened on February 4, 2000.

The Sandiganbayan ruled that the provisions of CA No. 142, as interpreted in Ursua, must necessarily be harmonized with the provisions of R.A. No.1405 and R.A. No. 9160 under the principle that every statute should be construed in a way that will harmonize it with existing laws. A reasonable scrutiny, the Sandiganbayan said, of all these laws in relation to the present case, led it to conclude that the use of an alias within the context of a bank transaction (specifically, the opening of a numbered account made before bank officers) is protected by the secrecy provisions of R.A. No. 1405, and is thus outside the coverage of CA No. 142 until the passage into law of R.A. No. 9160.

THE PETITION

The People filed this petition raising the following issues:

1. Whether the court a quo gravely erred and abused its discretion in dismissing Crim. Case No. 26565 and in holding that the use by respondent Joseph Estrada of his alias Jose Velarde was not public despite the presence of Messrs. Aprodicio Laquian and Fernando Chua on 4 February 2000;

2. Whether the court a quo gravely erred and abused its discretion in dismissing Crim. Case No. 26565 and in holding that the use by respondent Joseph Estrada of his alias Jose Velarde was allowable under banking rules, despite the clear prohibition under Commonwealth Act No. 142;

3. Whether the court a quo gravely erred and abused its discretion in dismissing Crim. Case No. 26565 and in applying R.A. No. 1405 as an exception to the illegal use of alias punishable under Commonwealth Act No. 142;

4. Whether the alleged harmonization and application made by the court a quo of R.A. No.1405 and Commonwealth Act No. 142 were proper;

5. Whether the court a quo gravely erred and abused its discretion in limiting the coverage of the amended Information in Crim. Case No. 26565 to the use of the alias Jose Velarde by respondent Joseph Estrada on February 4, 2000;

6. Whether the court a quo gravely erred and abused its discretion in departing from its earlier final finding on the non-applicability of Ursua v. Court of Appeals and forcing its application to the instant case.

THE COURTS RULING

The petition has no merit.

The Law on Illegal Use of Alias and the Ursua Ruling

Sections 1 and 2 of CA No. 142, as amended, read:

Section 1. Except as a pseudonym solely for literary, cinema, television, radio or other entertainment purposes and in athletic events where the use of pseudonym is a normally accepted practice, no person shall use any name different from the one with which he was registered at birth in the office of the local civil registry or with which he was baptized for the first time, or in case of an alien, with which he was registered in the bureau of immigration upon entry; or such substitute name as may have been authorized by a competent court: Provided, That persons whose births have not been registered in any local civil registry and who have not been baptized, have one year from the approval of this act within which to register their names in the civil registry of their residence. The name shall comprise the patronymic name and one or two surnames.

Section 2. Any person desiring to use an alias shall apply for authority therefor in proceedings like those legally provided to obtain judicial authority for a change of name and no person shall be allowed to secure such judicial authority for more than one alias. The petition for an alias shall set forth the person's baptismal and family name and the name recorded in the civil registry, if different, his immigrant's name, if an alien, and his pseudonym, if he has such names other than his original or real name, specifying the reason or reasons for the desired alias. The judicial authority for the use of alias, the Christian name and the alien immigrant's name shall be recorded in the proper local civil registry, and no person shall use any name or names other than his original or real name unless the same is or are duly recorded in the proper local civil registry.

How this law is violated has been answered by the Ursua definition of an alias a name or names used by a person or intended to be used by him publicly and habitually usually in business transactions in addition to his real name by which he is registered at birth or baptized the first time or substitute name authorized by a competent authority. There must be, in the words of Ursua, a sign or indication that the user intends to be known by this name (the alias) in addition to his real name from that day forth [for the use of alias to] fall within the prohibition contained in C.A. No. 142 as amended.[18]

Ursua further relates the historical background and rationale that led to the enactment of CA No. 142, as follows:

The enactment of C.A. No. 142 was made primarily to curb the common practice among the Chinese of adopting scores of different names and aliases which created tremendous confusion in the field of trade. Such a practice almost bordered on the crime of using fictitious names which for obvious reasons could not be successfully maintained against the Chinese who, rightly or wrongly, claimed they possessed a thousand and one names. C.A. No. 142 thus penalized the act of using an alias name, unless such alias was duly authorized by proper judicial proceedings and recorded in the civil register.[19]

Following the doctrine of stare decisis,[20] we are guided by the Ursua ruling on how the crime punished under CA No. 142 may be committed. Close adherence to this ruling, in other words, is unavoidable in the application of and the determination of criminal liability under CA No. 142.

Among the many grounds the People invokes to avoid the application of the Ursua ruling proceeds from Estradas position in the government; at the time of the commission of the offense, he was the President of the Republic who is required by law to disclose his true name. We do not find this argument sufficient to justify a distinction between a man on the street, on one hand, and the President of the Republic, on the other, for purposes of applying CA No. 142. In the first place, the law does not make any distinction, expressly or impliedly, that would justify a differential treatment. CA No. 142 as applied to Estrada, in fact allows him to use his cinema or screen name of Joseph Estrada, which name he has used even when he was already the President of the Philippines. Even the petitioner has acquiesced to the use of the screen name of the accused, as shown by the title of the present petition. Additionally, any distinction we make based on the Peoples claim unduly prejudices Estrada; this is proscribed by the Ursua dictum that CA No. 142, as a penal statute, should be construed strictly against the State and in favor of the accused.[21] The mode of violating CA No. 142 is therefore the same whoever the accused may be.

The People also calls our attention to an earlier Sandiganbayan ruling (Resolution dated February 6, 2002) denying Estradas motion to quash the Information. This earlier Resolution effectively rejected the application of Ursua under the following tenor:

The use of the term alias in the Amended Information in itself serves to bring this case outside the ambit of the ruling in the case of Ursua v. Court of Appeals (256 SCRA 147 [1996]), on which the accused heavily relies in his motion to quash. The term alias means otherwise known as (Webster Third New International Dictionary, 1993 ed., p. 53). The charge of using an alias logically implies that another name has been used publicly and habitually. Otherwise, he will not be known by such name. In any case, the amended information adverts to several transactions and signing of documents with the Equitable PCI Bank and/or other corporate entities where the above-mentioned alias was allegedly employed by the accused.

The facts alleged in the information are distinctly different from facts established in the Ursua case where another name was used by the accused in a single instance without any sign or indication that that [sic] he intended to be known from that day by this name in addition to his real name.[22]

The People argues that the Sandiganbayan gravely abused its discretion in applying Ursua notwithstanding this earlier final ruling on its non-applicability a ruling that binds the parties in the present case. The People thus claims that the Sandiganbayan erred to the point of gravely abusing its discretion when it resurrected the application of Ursua, resulting in the reversal of its earlier final ruling.

We find no merit in this argument for two reasons. First, the cited Sandiganbayan resolution is a mere interlocutory order a ruling denying a motion to quash[23] that cannot be

given the attributes of finality and immutability that are generally accorded to judgments or orders that finally dispose of the whole, of or particular matters in, a case.[24] The Sandiganbayan resolution is a mere interlocutory order because its effects would only be provisional in character, and would still require the issuing court to undertake substantial proceedings in order to put the controversy to rest.[25] It is basic remedial law that an interlocutory order is always under the control of the court and may be modified or rescinded upon sufficient grounds shown at any time before final judgment.[26] Perez v. Court of Appeals, [27] albeit a civil case, instructively teaches that an interlocutory order carries no res adjudicata effects. Says Perez:

The Decision in CA-G.R. No. 10415 having resolved only an interlocutory matter, the principle of res judicata cannot be applied in this case. There can be no res judicata where the previous order in question was not an order or judgment determinative of an issue of fact pending before the court but was only an interlocutory order because it required the parties to perform certain acts for final adjudication. In this case, the lifting of the restraining order paved the way for the possession of the fishpond on the part of petitioners and/or their representatives pending the resolution of the main action for injunction. In other words, the main issue of whether or not private respondent may be considered a sublessee or a transferee of the lease entitled to possess the fishpond under the circumstances of the case had yet to be resolved when the restraining order was lifted.[28]

Second, in the earlier motion to quash, the Sandiganbayan solely looked at the allegations of the Information to determine the sufficiency of these allegations and did not consider any evidence aliunde. This is far different from the present demurrer to evidence where the Sandiganbayan had a fuller view of the prosecutions case, and was faced with the issue of whether the prosecutions evidence was sufficient to prove the allegations of the Information. Under these differing views, the Sandiganbayan may arrive at a different conclusion on the application of Ursua, the leading case in the application of CA 142, and the change in ruling is not per se indicative of grave abuse of discretion. That there is no error of law is strengthened by our consideration of the Sandiganbayan ruling on the application of Ursua.

In an exercise of caution given Ursuas jurisprudential binding effect, the People also argues in its petition that Estradas case is different from Ursuas for the following reasons: (1) respondent Estrada used and intended to continually use the alias Jose Velarde in addition to the name Joseph Estrada; (2) Estradas use of the alias was not isolated or limited to a single transaction; and (3) the use of the alias Jose Velarde was designed to cause and did cause confusion and fraud in business transactions which the anti-alias law and its related statutes seek to prevent. The People also argues that the evidence it presented more than satisfied the requirements of CA No. 142, as amended, and Ursua, as it was also shown or established that Estradas use of the alias was public.

In light of our above conclusions and based on the parties expressed positions, we shall now examine within the Ursua framework the assailed Sandiganbayan Resolution granting the demurrer to evidence. The prosecution has the burden of proof to show that the evidence it presented with the Sandiganbayan satisfied the Ursua requirements, particularly on the matter of publicity and habituality in the use of an alias.

What is the coverage of the indictment?

The People argues that the Sandiganbayan gravely erred and abused its discretion in limiting the coverage of the amended Information in Crim. Case No. 26565 to Estradas use of the alias Jose Velarde on February 4, 2000. It posits that there was a main transaction one that took place on February 4, 2000 but there were other transactions covered by the phrase prior to or subsequent thereto; the Information specifically referred to several transactions with Equitable PCI Bank and/or other corporate entities. To the People, the restrictive finding that the phrase prior to or subsequent thereto is absorbed by the phrase on or about 04 February 2000 drastically amends the succeeding main allegations on the constitutive criminal acts by removing the plurality of both the transactions involved and the documents signed with various entities; there is the undeniable essential relationship between the allegations of the multiplicity of transactions, on one hand, and the additional antecedent of prior to or subsequent thereto, on the other. It argues that the Sandiganbayan reduced the phrase prior to or subsequent thereto into a useless appendage, providing Estrada with a convenient and totally unwarranted escape route.

The People further argues that the allegation of time is the least exacting in satisfying the constitutional requirement that the accused has to be informed of the accusation against him. Section 6 of Rule 110 of the Revised Rules of Court provides that an allegation of the approximate date of the commission of the offense will suffice, while Section 11 of the same Rule provides that it is not necessary to state in the complaint or information the precise date the offense was committed except when it is a material ingredient of the crime. This liberality allegedly shaped the time-tested rule that when the time given in the complaint is not of the essence of the offense, the time of the commission of the offense does not need to be proven as alleged, and that the complaint will be sustained if the proof shows that the offense was committed at any time within the period of the statute of limitations and before the commencement of the action (citing People v. Bugayong [299 SCRA 528, 537] that in turn cited US v. Smith [3 Phil. 20, 22]). Since allegations of date of the commission of an offense are liberally interpreted, the People posits that the Sandiganbayan gravely abused its discretion in disregarding the additional clause prior to or subsequent thereto; under the liberality principle, the allegations of the acts constitutive of the offense finally determine the sufficiency of the allegations of time. The People thus claims that no surprise could have taken place that would prevent Estrada from properly defending himself; the information fully notified him that he was being accused of using the alias Jose Velarde in more than just one instance.

We see no merit in these arguments.

At its core, the issue is constitutional in nature the right of Estrada to be informed of the nature and cause of the accusation against him. Under the provisions of the Rules of Court implementing this constitutional right, a complaint or information is sufficient if it states the name of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense in the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed.[29] As to the cause of accusation, the acts or omissions complained of as constituting the offense and

the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute, but in terms sufficient to enable a person of common understanding to know the offense charged and the qualifying and aggravating circumstances, and for the court to pronounce judgment.[30] The date of the commission of the offense need not be precisely stated in the complaint or information except when the precise date is a material ingredient of the offense. The offense may be alleged to have been committed on a date as near as possible to the actual date of its commission.[31]

The information must at all times embody the essential elements of the crime charged by setting forth the facts and circumstances that bear on the culpability and liability of the accused so that he can properly prepare for and undertake his defense.[32] In short, the allegations in the complaint or information, as written, must fully inform or acquaint the accused the primary reader of and the party directly affected by the complaint or information of the charge/s laid.

The heretofore cited Information states that on or about 04 February 2000, or sometime prior or subsequent thereto, in the City of Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused [did] willfully, unlawfully and criminally REPRESENT HIMSELF AS JOSE VELARDE IN SEVERAL TRANSACTIONS AND use and employ the SAID alias Jose Velarde which IS neither his registered name at birth nor his baptismal name, in signing documents with Equitable PCI Bank and/or other corporate entities.

We fully agree with the disputed Sandiganbayans reading of the Information, as this was how the accused might have similarly read and understood the allegations in the Information and, on this basis, prepared his defense. Broken down into its component parts, the allegation of time in the Information plainly states that (1) ON February 4, 2000; (2) OR before February 4, 2000; (3) OR sometime prior or subsequent to February 4, 2000, in the City of Manila, Estrada represented himself as Jose Velarde in several transactions in signing documents with Equitable PCI Bank and/or other corporate entities.

Under this analysis, the several transactions involving the signing of documents with Equitable PCI Bank and/or other corporate entities all had their reference to February 4, 2000; they were all made on or about or prior or subsequent to that date, thus plainly implying that all these transactions took place only on February 4, 2000 or on another single date sometime before or after February 4, 2000. To be sure, the Information could have simply said on or about February 4, 2000 to capture all the alternative approximate dates, so that the phrase sometime prior or subsequent thereto would effectively be a surplusage that has no meaning separately from the on or about already expressed. This consequent uselessness of the prior or subsequent thereto phrase cannot be denied, but it is a direct and necessary consequence of the use of the OR between the two phrases and the THERETO that referred back to February 4, 2000 in the second phrase. Of course, the reading would have been very different (and would have been clearly in accord with the Peoples present interpretation) had the Information simply used AND instead of OR to separate the phrases; the intent to refer to various transactions occurring on various dates and occasions all proximate to February 4, 2000 could not be disputed. Unfortunately for the People, the imprecision in the use of OR is the reality the case has to live with. To act contrary to this reality would violate Estradas right to be informed of the nature and cause of accusation against him; the multiple transactions on several separate days that the People claims would result in surprise and denial of an opportunity to prepare for Estrada, who has a right to rely on the single day mentioned in the Information.

Separately from the constitutional dimension of the allegation of time in the Information, another issue that the allegation of time and our above conclusion raise relates to what act or acts, constituting a violation of the offense charged, were actually alleged in the Information.

The conclusion we arrived at necessarily impacts on the Peoples case, as it deals a fatal blow on the Peoples claim that Estrada habitually used the Jose Velarde alias. For, to our mind, the repeated use of an alias within a single day cannot be deemed habitual, as it does not amount to a customary practice or use. This reason alone dictates the dismissal of the petition under CA No. 142 and the terms of Ursua.

The issues of publicity, numbered accounts, and the application of CA No. 142, R.A. No. 1405, and R.A. No. 9160.

We shall jointly discuss these interrelated issues.

The People claims that even on the assumption that Ocampo and Curato are bank officers sworn to secrecy under the law, the presence of two other persons who are not bank officers Aprodicio Laquian and Fernando Chua when Estradas signed the bank documents as Jose Velarde amounted to a public use of an alias that violates CA No. 142.

On the issue of numbered accounts, the People argues that to premise the validity of Estradas prosecution for violation of CA No. 142 on a mere banking practice is gravely erroneous, improper, and constitutes grave abuse of discretion; no banking law provision allowing the use of aliases in the opening of bank accounts existed; at most, it was allowed by mere convention or industry practice, but not by a statute enacted by the legislature. Additionally, that Estradas prosecution was supposedly based on BSP Circular No. 302 dated October 11, 2001 is wrong and misleading, as Estrada stands charged with violation of CA No. 142, penalized since 1936, and not with a violation of a mere BSP Circular. That the use of alias in bank transactions prior to BSP Circular No. 302 is allowed is inconsequential because as early as CA No. 142, the use of an alias (except for certain purposes which do not include banking) was already prohibited. Nothing in CA No. 142 exempted the use of aliases in banking transactions, since the law did not distinguish or limit its application; it was therefore grave error for the Sandiganbayan to have done so. Lastly on this point, bank regulations being mere issuances cannot amend, modify or prevail over the effective, subsisting and enforceable provision of CA No. 142.

On the issue of the applicability of R.A. No. 1405 and its relationship with CA No. 142, that since nothing in CA No. 142 excuses the use of an alias, the Sandiganbayan gravely abused its discretion when it ruled that R.A. No. 1405 is an exception to CA No. 142s coverage. Harmonization of laws, the People posits, is allowed only if the laws intended to be harmonized refer to the same subject matter, or are at least related with one another. The three laws which the Sandiganbayan tried to harmonize are not remotely related to one another; they each deal with a different subject matter, prohibits a different act, governs a different conduct, and covers a different class of persons,[33] and there was no need to force their application to one another. Harmonization of laws, the People adds, presupposes the existence of conflict or incongruence between or among the provisions of various laws, a situation not obtaining in the present case.

The People posits, too, that R.A. No. 1405 does not apply to trust transactions, such as Trust Account No. C-163, as it applies only to traditional deposits (simple loans). A trust account, according to the People, may not be considered a deposit because it does not create the juridical relation of creditor and debtor; trust and deposit operations are treated separately and are different in legal contemplation; trust operation is separate and distinct from banking and requires a grant of separate authority, and trust funds are not covered by deposit insurance under the Philippine Deposit Insurance Corporation law (R.A. No. 3591, as amended).

The People further argues that the Sandiganbayans conclusion that the transaction or communication was privileged in nature was erroneous a congruent interpretation of CA No. 142 and R.A. No. 1405 shows that a person who signs in a public or private transaction a name or alias, other than his original name or the alias he is authorized to use, shall be held liable for violation of CA No. 142, while the bank employees are bound by the confidentiality of bank transactions except in the circumstances enumerated in R.A. No. 1405. At most, the People argues, the prohibition in R.A. No. 1405 covers bank employees and officers only, and not Estrada; the law does not prohibit Estrada from disclosing and making public his use of an alias to other people, including Ocampo and Curato, as he did when he made a public exhibit and use of the alias before Messrs. Lacquian and Chua.

Finally, the People argues that the Sandiganbayan ruling that the use of an alias before bank officers does not violate CA No. 142 effectively encourages the commission of wrongdoing and the concealment of ill-gotten wealth under pseudonyms; it sustains an anomalous and prejudicial policy that uses the law to silence bank officials and employees from reporting the commission of crimes. The People contends that the law R.A. No. 1405 was not intended by the Legislature to be used as a subterfuge or camouflage for the commission of crimes and cannot be so interpreted; the law can only be interpreted, understood and applied so that right and justice would prevail.

We see no merit in these arguments.

We agree, albeit for a different reason, with the Sandiganbayan position that the rule in the law of libel that mere communication to a third person is publicity does not apply to violations of CA No. 142. Our close reading of Ursua particularly, the requirement that there be intention by the user to be culpable and the historical reasons we cited above tells us that the required publicity in the use of alias is more than mere communication to a third person; the use of the

alias, to be considered public, must be made openly, or in an open manner or place, or to cause it to become generally known. In order to be held liable for a violation of CA No. 142, the user of the alias must have held himself out as a person who shall publicly be known under that other name. In other words, the intent to publicly use the alias must be manifest.

To our mind, the presence of Lacquian and Chua when Estrada signed as Jose Velarde and opened Trust Account No. C-163 does not necessarily indicate his intention to be publicly known henceforth as Jose Velarde. In relation to Estrada, Lacquian and Chua were not part of the public who had no access to Estradas privacy and to the confidential matters that transpired in Malacaan where he sat as President; Lacquian was the Chief of Staff with whom he shared matters of the highest and strictest confidence, while Chua was a lawyer-friend bound by his oath of office and ties of friendship to keep and maintain the privacy and secrecy of his affairs. Thus, Estrada could not be said to have intended his signing as Jose Velarde to be for public consumption by the fact alone that Lacquian and Chua were also inside the room at that time. The same holds true for Estradas alleged representations with Ortaliza and Dichavez, assuming the evidence for these representations to be admissible. All of Estradas representations to these people were made in privacy and in secrecy, with no iota of intention of publicity.

The nature, too, of the transaction on which the indictment rests, affords Estrada a reasonable expectation of privacy, as the alleged criminal act related to the opening of a trust account a transaction that R.A. No. 1405 considers absolutely confidential in nature.[34] We previously rejected, in Ejercito v. Sandiganbayan,[35] the Peoples nitpicking argument on the alleged dichotomy between bank deposits and trust transactions, when we said:

The contention that trust accounts are not covered by the term deposits, as used in R.A. 1405, by the mere fact that they do not entail a creditor-debtor relationship between the trustor and the bank, does not lie. An examination of the law shows that the term deposits used therein is to be understood broadly and not limited only to accounts which give rise to a creditor-debtor relationship between the depositor and the bank.

The policy behind the law is laid down in Section 1:

SECTION 1. It is hereby declared to be the policy of the Government to give encouragement to the people to deposit their money in banking institutions and to discourage private hoarding so that the same may be properly utilized by banks in authorized loans to assist in the economic development of the country. (Underscoring supplied)

If the money deposited under an account may be used by bank for authorized loans to third persons, then such account, regardless of whether it creates a creditor-debtor relationship between the depositor and the bank, falls under the category of accounts which the law precisely seeks to protect for the purpose of boosting the economic development of the country.

Trust Account No. 858 is, without doubt, one such account. The Trust Agreement between petitioner and Urban Bank provides that the trust account covers deposit, placement or investment of funds by Urban Bank for and in behalf of petitioner. The money deposited under Trust Account No. 858, was, therefore, intended not merely to remain with the bank but to be invested by it elsewhere. To hold that this type of account is not protected by R.A. 1405 would encourage private hoarding of funds that could otherwise be invested by bank in other ventures, contrary to the policy behind the law.

Section 2 of the same law in fact even more clearly shows that the term deposits was intended to be understood broadly:

SECTION 2. All deposits of whatever nature with bank or banking institutions in the Philippines including investments in bonds issued by the Government of the Philippines, its political subdivisions and its instrumentalities, are hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked into by any person, government official, bureau or office, except upon written permission of the depositor, or in cases of impeachment, or upon order of a competent court in cases of bribery or dereliction of duty of public officials, or in cases where the money deposited or invested is the subject matter of the litigation. (Emphasis and underscoring supplied)

The phrase of whatever nature proscribes any restrictive interpretation of deposits. Moreover, it is clear from the immediately quoted provision that, generally, the law applies not only to money which is deposited but also to those which are invested. This further shows that the law was not intended to apply only to deposits in the strict sense of the word. Otherwise, there would have been no need to add the phrase or invested.

Clearly, therefore, R.A. 1405 is broad enough to cover Trust Account No. 858.[36]

We have consistently ruled that bank deposits under R.A. No. 1405 (the Secrecy of Bank Deposits Law) are statutorily protected or recognized zones of privacy.[37] Given the private nature of Estradas act of signing the documents as Jose Velarde related to the opening of the trust account, the People cannot claim that there was already a public use of alias when Ocampo and Curato witnessed the signing. We need not even consider here the impact of the obligations imposed by R.A. No.1405 on the bank officers; what is essentially significant is the privacy situation that is necessarily implied in these kinds of transactions. This statutorily guaranteed privacy and secrecy effectively negate a conclusion that the transaction was done publicly or with the intent to use the alias publicly.

The enactment of R.A. No.9160, on the other hand, is a significant development only because it clearly manifests that prior to its enactment, numbered accounts or anonymous accounts were

permitted banking transactions, whether they be allowed by law or by a mere banking regulation. To be sure, an indictment against Estrada using this relatively recent law cannot be maintained without violating the constitutional prohibition on the enactment and use of ex post facto laws.[38]

We hasten to add that this holistic application and interpretation of these various laws is not an attempt to harmonize these laws. A finding of commission of the offense punished under CA No. 142 must necessarily rest on the evidence of the requisites for culpability, as amplified in Ursua. The application of R.A. No. 1405 is significant only because Estradas use of the alias was pursuant to a transaction that the law considers private or, at the very least, where the law guarantees a reasonable expectation of privacy to the parties to the transactions; it is at this point that R.A. No. 1405 tangentially interfaces with an indictment under CA 142. In this light, there is no actual frontal clash between CA No. 142 and R.A. No. 1405 that requires harmonization. Each operates within its own sphere, but must necessarily be read together when these spheres interface with one another. Finally, R.A. No. 9160, as a law of recent vintage in relation to the indictment against Estrada, cannot be a source or an influencing factor in his indictment.

In finding the absence of the requisite publicity, we simply looked at the totality of the circumstances obtaining in Estradas use of the alias Jose Velarde vis--vis the Ursua requisites. We do not decide here whether Estradas use of an alias when he occupied the highest executive position in the land was valid and legal; we simply determined, as the Sandiganbayan did, whether he may be made liable for the offense charged based on the evidence the People presented. As with any other accused, his guilt must be based on the evidence and proof beyond reasonable doubt that a finding of criminal liability requires. If the People fails to discharge this burden, as they did fail in this case, the rule of law requires that we so declare. We do so now in this review and accordingly find no reversible error of law in the assailed Sandiganbayan ruling.

WHEREFORE, premises considered, we DENY the petition for lack of merit.

SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-25438 April 25, 1969

IN THE MATTER OF THE PETITION OF WILLIAM SAY CHONG HAI, whose aliases are "WILLIAM FRANCISCO SAY", "FRANCISCO T. SAY", "FRANCISCO SAY y TY", "WM. FRANCISCO SAY CHONG HAI" and "FRANCISCO WILLIAM SAY CHONG HAI" TO BE ADMITTED A CITIZEN OF THE PHILIPPINES. WILLIAM SAY CHONG HAI petitioner-appellee, vs. REPUBLIC OF THE PHILIPPINES, oppositor-appellant.

Ceferino M. Carpio, Jr. for petitioner-appellee. Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Antonio A. Torres and Solicitor Santiago M. Kapunan for oppositor-appellant. FERNANDO, J.: In this petition for naturalization, the lower court, notwithstanding the admitted but unauthorized used of aliases by applicant William Say Chong Hai and his reliance on the testimony of two of his former professors in the San Beda College, came to the conclusion that there was no bar to his acquisition of Philippine citizenship. Accordingly, in the decision of July 19, 1965, such petition was granted. As perhaps could have been executed the obstacle to the grant of citizenship being rather formidable in character, the government appealed. The appeal must be sustained and the judgment of the lower court reversed. 1. The first error assigned by the Republic of the Philippines would assail the failure of the lower court, the use by petitioner of aliases without judicial authority being undoubted, to deny his petition for naturalization as under the circumstances he could not be held as having conducted himself in a proper and irreproachable manner. The brief for appellant, would support its assignment of error thus: "Petitioner uses several aliases interchangeably. Thus, in his Birth Certificate, Exhibit 9, his name appears as Francisco William Say Chiong Hai while in his Alien Certificate of Registration, his name appears as William Say Chiong Hai. Likewise, petitioner also used the name of William Say Chiong Hai in his Immigration Certificate of Residence ... while in his Income Tax Returns for the years 1960, 1961 and 1962, ..., he used the name of William Francisco Say Chiong Hai. In his Residence Certificate A for the years 1960, 1961 and 1962 ..., he used the name of William Francisco Say and in the statement of assets, income and liabilities he filed with the Bureau of Internal Revenue, he added the middle name 'Ty' to the name William Francisco Say Chiong Hai." 1 It was likewise set forth in such brief: "Petitioner himself admitted in open court that most of the time he uses two names, William Francisco Say, by which he is commonly known in the community, and William Say Chiong Hai, which he uses in signing parcel posts.... He also admitted that when signing papers in business transaction, he uses the name of William Francisco Say Chiong Hai, William Francisco Ch. Say and William Francisco Say interchangeable...." 2 As indicated above, the stand of the Republic of the Philippines is unassailable. Such an error was indeed committed. The decision was rendered on July 19, 1965. This Court made clear in a ruling an March 31 of that year, Ang Tee Ye v. Republic, 3 "that the unexplained and unauthorized use of an alias was sufficient to deny a petition for naturalization." As a matter of fact, in a 1962 decision, 4 such a fact would indicate that the conduct of petitioner was not beyond reproach and would therefore be a ground for the failure of his petition for naturalization. An objection based on such a ground was considered by us valid, again, in a decision rendered on June 21, 1965, barely a month before the lower court granted the petition for naturalization. 5 Petitioner, to whom such an act could be attributed, is thus deemed "unworthy of Philippine citizenship." 6 On two occasions recently, we have reiterated the doctrine that such an unlawful use of an alias suffices or warrants the denial of a petition for naturalization. 7 It is thus clear that the lower court-failed to exhibit sufficient awareness of decisions that should be deemed controlling. Shortly before the appealed decision was rendered, we did emphatically static in Cheng v. Republic, 8 that the use of an alias without authorization is "fatal to the application for naturalization." Less than a year ago, in Chan De v. Republic, 9 we had occasion to employ the same formulation when we considered the failure to mention the other names as "fatal to the proceedings."

How would the brief for petitioner-appellee seek to impart plausibility to what, as had been clearly shown above, was an erroneous appraisal of the state of the law by the lower court? It would rely on Hao Bin Chiong v. Republic, 10 which it considered as speaking to the effect "that the unauthorized use of aliases by the applicant is merely a minor transgression, involving no moral turpitude or willful criminality, [and] cannot by itself obstruct the grant of his application for naturalization, if he has all the necessary qualifications and none of the disqualifications to become a Filipino citizen." 11 What the brief for appellee fails to mention is that since then from Yu Seco v. Republic 12 to Chan De v. Republic 13 our decisions are impressive both as to number and unanimity in pointing out, as already mentioned, the infirmity, fatal in character, of the illegal or unauthorized use of an alias. 14 2. The second assigned error is equally meritorious. The lower court did err in not finding that the character witnesses presented by petitioner could not be considered as credible persons within the meaning of the Naturalization Act.lawphi1.nt As noted in the appellant's brief: "Petitioner's character witnesses are not credible persons within the meaning of the Revised Naturalization Law. Although both were at one time or another petitioner's professors or teachers at San Beda College, their acquaintance with petitioner was limited to school activities and very little else. Their testimonies themselves are patently insufficient because they fail to give details about petitioner's life and character to show how well they know him and why they believe him to be qualified for Filipino citizenship. Recaredo Enriquez testified that during the time that he has known petitioner, he could not even remember the topics they talked about, but maybe 'it was a common topic or just a small talk' .... On the part of witness Zosimo C. Ella, he admitted that his acquaintance with petitioner is more of the relation between professor and student; their meeting had taken place only in the classrooms...." 15 The lower court viewed the matter differently. Thus: "As to the other ground of the opposition, the Court finds after examining the testimony of the character witnesses of the petitioner, that said witnesses have known the petitioner since 1946 when the petitioner was a primary student at San Beda College, and their dealings with the petitioner extend through the high school and college years of the petitioner both inside and outside of the school activities. They therefore had the opportunity to observe the conduct and character of the petitioner. Such being the case, the said witnesses are competent persons to testify, as they did testify favorably, on the conduct and reputation of the petitioner." 16 Here, again, the lower court failed to exhibit fidelity to our controlling decisions, which, it must ever be borne in mind, should be treated with the utmost respect and deference by inferior tribunals. As early as July 18, 1951, this Court, in an opinion by Justice Tuason, relying on American decisions of a persuasive character, stressed the importance of character witnesses. Thus: "In the case of In re Kornstain, 268 Fed. Rep. 182, the court expressed the same idea and reasoned: 'In naturalization petitions. the Courts are peculiarly at the mercy of the witnesses offered by the candidate. Such candidate takes care to see that only those who are friendly to him, are offered as witnesses. The Courts cannot be expected to possess acquaintance with the candidates presenting themselves for naturalization in fact, no duty rests upon them in this particular; so that witnesses appearing before them are in a way insurers of the character of the candidate concerned, and on their testimony the courts are of necessity compelled to rely. A witness who is incompetent renders an application void. (United States v. Martorana 171 Fed. 097, 96 C.C.A., 353) A competent witness cannot be substituted for an incompetent one. (United States v. Gulliksen, 244, Fed. 727, 157 C.C.A. 175.) The question of a witness' qualifications in naturalization proceedings is therefore a matter of more than usual importance.'" 17 After setting forth the above, the opinion stated that the above reasoning is "sound and reasonable and therefore we made it "our own." 18

We went further in Lim Ching Tian v. Republic, 19 a 1961 decision. Thus: "The law requires that a vouching witness should have actually known an applicant for whom he testified for the requisite period prescribed therein to give him the necessary competence to act as such. The reason behind this requirement is that a vouching witness is in a way an insurer of the character of petitioner because on his testimony the court is of necessity compelled to rely in deciding the merits of his petition. It is, therefore, imperative that he be competent and reliable. And he is only competent to testify on his conduct, character and moral fitness if he has had the opportunity to observe him personally, if not intimately, during the period he has allegedly known him. Such knowledge Flores did not possess. He is, therefore, disqualified to act as character witness." It does not admit of doubt then that to impute the utmost credence to testimony coming from character witnesses, who were professors in the San Beda College, where petitioner studied, would be to disregard the realities of the situation. Whatever may be said of the extent of knowledge a teacher or a professor may have of a student as such, even if it be admitted that a certain degree of intimacy could have been assumed, it cannot rise to that degree of certainty as to his possesing all the qualifications and none of the disqualifications that a court of justice must rely upon to be rightfully possessed of that requisite confidence in the award of citizenship. Nor is this the only objection. It has been shown that the knowledge edge acquired of petitioner dated only from 1946. Again, the period required for the acquaintance that must exist for such witnesses to be deemed credible was not present. Had the lower court in this instance, as in the first error assigned, been more exacting in its appraisal of the testimony thus offered, it could not have fallen into this error. 20 More specifically, the use of a tutor or professor as attesting witnesses had in at least three cases been frowned upon by this Court because of the far from persuasive nature of their testimony. 21 We do so again. WHEREFORE, the appealed decision of July 19, 1965 by the lower court is hereby reversed, with costs against petitioner-appellee. Reyes, J.B.L., Actg. C.J., Dizon, Makalintal, Zaldivar, Sanchez, Capistrano and Teehankee JJ., concur. Concepcion, C.J., and Castro, JJ., is on leave. Barredo, J., took no part. . RA 9165 Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 171019 February 23, 2007

THE PEOPLE OF THE PHILIPPINES, Appellee, vs. RAFAEL STA. MARIA y INDON, Appellant. DECISION GARCIA, J.: Under consideration is this appeal by Rafael Sta. Maria y Indon from the Decision1 dated November 22, 2005 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00802, denying his

earlier appeal from and affirming the May 5, 2004 decision2 of the Regional Trial Court (RTC) of Bulacan, Branch 20, which found him guilty beyond reasonable doubt of the crime of violation of Section 5,3 Article II of Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002. The indicting Information,4 docketed in the RTC as Criminal Case No. 3364-M-2002, alleges: That on or about the 29th day of November, 2002, in the municipality of San Rafael, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without authority of law and legal justification, did then and there willfully, unlawfully and feloniously sell, trade, deliver, give away, dispatch in transit and transport dangerous drug consisting of one (1) heat sealed transparent plastic sachet containing methylampetamine hydrochloride weighing 0.041 gram. Contrary to law. Duly arraigned on January 23, 2003, appellant pleaded "Not Guilty" to the crime charged. Trial ensued thereafter. The prosecutions version of events which led to appellants arrest and subsequent prosecution under the aforementioned Information is as follows: On November 27, 2002, at around 10:00 oclock in the morning, P/Chief Insp. Noli Pacheco, Chief of the Provincial Drug Enforcement Group of the Bulacan Provincial Office based at Camp Alejo Santos, Malolos, Bulacan received an intelligence report about the illegal drug activities in Sitio Gulod, Barangay Pantubig, San Rafael, Bulacan of a certain "Fael," who later turned out to be appellant Rafael Sta. Maria. P/Chief Insp. Pacheco formed a surveillance team to look for a police asset to negotiate a drug deal with appellant. In the morning of November 29, 2002, the surveillance team reported to P/Chief Insp. Pacheco that a confidential asset found by the team had already negotiated a drug deal for the purchase of P200 worth of shabu from appellant at the latters house at No. 123 Sitio Gulod, Barangay Pantubig, San Rafael, Bulacan between 7:00 and 7:30 in the evening of November 29, 2002. The surveillance team then prepared for a buybust operation, with PO3 Enrique Rullan as team leader, and PO1 Rhoel Ventura, who was provided with two (2) marked P100-bills, as poseur-buyer. At the appointed time and place, PO1 Ventura and the confidential informant proceeded to appellants house and knocked at the door. Appellant opened the door and the confidential informant introduced to him PO1 Ventura as a prospective buyer. PO1 Ventura later handed the two (2) marked P100-bills to appellant who, in turn, gave him a plastic sachet of shabu. Thereupon, PO1 Ventura sparked his cigarette lighter, which was the pre-arranged signal to the other members of the buy-bust team that the sale was consummated. Appellant was arrested and the two marked P100-bills recovered from him. Also arrested on that occasion was one Zedric dela Cruz who was allegedly sniffing shabu inside appellants house and from whom drug paraphernalia were recovered. Upon laboratory examination of the item bought from appellant, the same yielded positive for methylampetamine hydrochloride or shabu weighing 0.041 gram. The defense gave an entirely different account of what allegedly transpired prior to and at the time of appellants arrest on that evening of November 29, 2002.1awphi1.net Appellant testified that on November 29, 2002, he was at home with a certain Zedric dela Cruz who was allegedly offering him a cellphone for sale and collecting payment on a loan of his wife. At that time, his wife was out of the house to pay their electric bill. While waiting for his wife, he and Zedric watched television when they heard the barking of dogs. Immediately, three (3) men suddenly barged into the house and announced that they were police officers while three other men stayed outside the house. The police officers frisked him and Zedric and searched the house. He tried to complain about what they were doing but the police officers got mad and accused him of selling shabu. He replied that he does not know anything about drugs.

Afterwards, he and Zedric were brought out of the house and handcuffed. While on board the police vehicle, the police officers warned them to cooperate. The police officers also asked him to be their asset and when he said that he does not know anything about it, they told him that they could file a case against him. The police officers also offered to buy drugs from him but he refused the offer because he knows that it is only a plan for them to arrest him. In a decision5 dated May 5, 2004, the trial court found appellant guilty beyond reasonable doubt of the offense charged, and accordingly sentenced him, thus: WHEREFORE, premises considered, judgment is hereby rendered as follows: 1). xxx 2). xxx 3). In Criminal Case No. 3264-M-2002, the Court finds accused RAFAEL STA. MARIA Y INDON guilty beyond reasonable doubt of Violation of Section 5, Article II of Republic Act 9165. He is hereby sentenced to suffer the penalty of life imprisonment and is ordered to pay a fine of Five Hundred Thousand Pesos (P500,000.00). The dangerous drug and drug paraphernalia submitted as evidence in these cases are hereby ordered to be transmitted to the Philippine Drug Enforcement Agency (PDEA). SO ORDERED. From the aforesaid decision, appellant went directly to this Court. Pursuant to our pronouncement in People v. Mateo,6 which modified the pertinent provisions of the Rules of Court insofar as they provide for direct appeals from the RTC to the Supreme Court in cases where the penalty imposed is death, reclusion perpetua or life imprisonment, the Court transferred the appeal to the CA for appropriate action and disposition, whereat it was docketed as CA-G.R. CR-H.C. No. 00802. On November 22, 2005, the CA promulgated the herein assailed Decision7 denying the appeal and affirming that of the trial court, to wit: xxx The Court sees no reason to disturb the finding of trial court. The evidence presented by the prosecution proves to a moral certainty appellants guilt of the crime of selling illegal drugs. What is material is proof that the transaction or sale actually took place, coupled with the presentation in court of the substance seized as evidence. WHEREFORE, the appeal is DENIED. The decision of the Regional Trial Court is hereby AFFIRMED. Costs de oficio. SO ORDERED. The case is again with this Court following its elevation from the CA, together with the case records. In his Brief, appellant contends that the trial court erred in convicting him because his guilt was not proven beyond reasonable doubt. He maintains that instigation, not entrapment, preceded his arrest. He also faults the appellate court in not finding that the evidence adduced by the prosecution was obtained in violation of Sections 21 and 86 of Republic Act No. 9165. It is appellants submission that what transpired on that fateful evening of November 29, 2002 was instigation and not a valid buy-bust operation. He would make much of the fact that the transaction between him and the police informant occurred on November 27, 2002, while the

buy-bust operation took place on November 29, 2002. To appellant, the informant, by pretending that he was in need of shabu, instigated or induced him to violate the anti-dangerous drugs law. He adds that the prosecution was not able to prove that at the time of the police surveillance, he was indeed looking for buyers of shabu, and that were it not for the inducement of the informant that the latter would buy shabu, he would not have produced the same on November 29, 2002. We are not persuaded. In entrapment, the entrapper resorts to ways and means to trap and capture a lawbreaker while executing his criminal plan. In instigation, the instigator practically induces the would-bedefendant into committing the offense, and himself becomes a co-principal. In entrapment, the means originates from the mind of the criminal. The idea and the resolve to commit the crime come from him. In instigation, the law enforcer conceives the commission of the crime and suggests to the accused who adopts the idea and carries it into execution. The legal effects of entrapment do not exempt the criminal from liability. Instigation does.8 Here, the mere fact that the agreement between appellant and the police informant for the purchase and sale of illegal drugs was made on November 27, 2002, while the buy-bust operation was conducted on November 29, 2002, is of no moment. Without more, it does not prove that said informant instigated appellant into committing the offense. If at all, the earlier agreement and the subsequent actual sale suggest that appellant was habitually dealing in illegal drugs. It is no defense to the perpetrator of a crime that facilities for its commission were purposely placed in his way, or that the criminal act was done at the "decoy solicitation" of persons seeking to expose the criminal, or that detectives feigning complicity in the act were present and apparently assisting its commission. Especially is this true in that class of cases where the offense is one habitually committed, and the solicitation merely furnishes evidence of a course of conduct.9 As here, the solicitation of drugs from appellant by the informant utilized by the police merely furnishes evidence of a course of conduct. The police received an intelligence report that appellant has been habitually dealing in illegal drugs. They duly acted on it by utilizing an informant to effect a drug transaction with appellant. There was no showing that the informant induced appellant to sell illegal drugs to him. It is a basic rule in evidence that each party must prove his affirmative allegation.10 In this case, apart from appellants self-serving declaration that he was instigated into committing the offense, he did not present any other evidence to prove the same. A perusal of the records readily reveals that the police operatives who took part in the buy-bust operation, namely, PO1 Alexander Ancheta, PO1 Rhoel Ventura and PO3 Enrique Rullan, clearly and convincingly testified on the circumstances that led to appellants arrest. In a credible manner, they narrated in open court the details of the buy-bust operation they conducted on November 29, 2002 in Sitio Gulod, Barangay Pantubig, San Rafael, Bulacan. We thus quote with approval the trial courts findings on this matter: PO1 Ancheta, PO1 Ventura and PO2 Rullan testified on the aforementioned circumstances concerning the drug buy-bust operation that led to the arrest of accused Sta. Maria, following the purchase from him of P200 worth of shabu by PO1 Ventura posing as poseur-buyer. The testimonies of these officers, as summarized above, are essentially clear credible and convincing. Notwithstanding minor inconsistencies, their declarations in Court dovetail and corroborated one another on material points, and are generally consistent with the narrations contained in their "Joint Affidavit of Arrest" (Exh. "D") executed on December 2, 2002. More significantly, there is no credible showing that the aforementioned police officers were impelled

by any improper motive or intention in effecting the arrest of accused Sta. Maria and in testifying against him in Court. The Court also takes judicial notice of the fact that accused Sta. Maria had other criminal cases before other branches of this Court for involvement in drug activities. He was charged with and convicted by Branch 21 of this Court of Violation of Section 16, Article III of the Republic Act of 6425, as amended, also known as the "Dangerous Drugs Act of 1972," following a voluntary plea of guilty in Criminal Case No. 341-M-2001. He was likewise charged with Violation of Sections 15 and 16 of the same law before Branch 81 under Criminal Cases Nos. 59-M-2000 and 60-M-2000, which were dismissed on mere technicality because of non-appearance of the arresting officers. The Court is not persuaded by the defense of denial interposed by accused Sta. Maria. According to him, the police officers just barged into his house on November 29, 2002 while he was watching television together with co-accused Dela Cruz. He said, he was frisked and his place searched, and he was arrested for no reason at all by the police officers. The Court rules that the version bandied about by accused Sta. Maria is purely self-serving. It cannot prevail over the positive declarations of the police officers regarding the drug buy-bust operation and purchase from him of shabu. To reiterate, there is no showing that said police officers were actuated by any ill or improper motive or intention in effecting the arrest of the accused Sta. Maria and in testifying against him in Court. (See People v. Dela Cruz, 229 SCRA 754; People v. Persiano, 233 SCRA 393). 11 Appellant would next argue that the evidence against him was obtained in violation of Sections 21 and 86 of Republic Act No. 9165 because the buy-bust operation was made without any involvement of the Philippine Drug Enforcement Agency (PDEA). Prescinding therefrom, he concludes that the prosecutions evidence, both testimonial and documentary, was inadmissible having been procured in violation of his constitutional right against illegal arrest. The argument is specious. Section 86 of Republic Act No. 9165 reads: SEC. 86. Transfer, Absorption, and Integration of All Operating Units on Illegal Drugs into the PDEA and Transitory Provisions. The Narcotics Group of the PNP, the Narcotics Division of the NBI and the Customs Narcotics Interdiction Unit are hereby abolished; however they shall continue with the performance of their task as detail service with the PDEA, subject to screening, until such time that the organizational structure of the Agency is fully operational and the number of graduates of the PDEA Academy is sufficient to do the task themselves: Provided, That such personnel who are affected shall have the option of either being integrated into the PDEA or remain with their original mother agencies and shall, thereafter, be immediately reassigned to other units therein by the head of such agencies. Such personnel who are transferred, absorbed and integrated in the PDEA shall be extended appointments to positions similar in rank, salary, and other emoluments and privileges granted to their respective positions in their original mother agencies. The transfer, absorption and integration of the different offices and units provided for in this Section shall take effect within eighteen (18) months from the effectivity of this Act: Provided, That personnel absorbed and on detail service shall be given until five (5) years to finally decide to join the PDEA. Nothing in this Act shall mean a diminution of the investigative powers of the NBI and the PNP on all other crimes as provided for in their respective organic laws: Provided, however, That when the investigation being conducted by the NBI, PNP or any ad hoc anti-drug task force is found to be a violation of any of the provisions of this Act, the PDEA shall be the lead agency. The NBI, PNP or any of the task force shall immediately transfer the same to the PDEA: Provided, further, That

the NBI, PNP and the Bureau of Customs shall maintain close coordination with the PDEA on all drug related matters. Cursory read, the foregoing provision is silent as to the consequences of failure on the part of the law enforcers to transfer drug-related cases to the PDEA, in the same way that the Implementing Rules and Regulations (IRR) of Republic Act No. 9165 is also silent on the matter. But by no stretch of imagination could this silence be interpreted as a legislative intent to make an arrest without the participation of PDEA illegal nor evidence obtained pursuant to such an arrest inadmissible. It is a well-established rule of statutory construction that where great inconvenience will result from a particular construction, or great public interests would be endangered or sacrificed, or great mischief done, such construction is to be avoided, or the court ought to presume that such construction was not intended by the makers of the law, unless required by clear and unequivocal words.12 As we see it, Section 86 is explicit only in saying that the PDEA shall be the "lead agency" in the investigations and prosecutions of drug-related cases. Therefore, other law enforcement bodies still possess authority to perform similar functions as the PDEA as long as illegal drugs cases will eventually be transferred to the latter. Additionally, the same provision states that PDEA, serving as the implementing arm of the Dangerous Drugs Board, "shall be responsible for the efficient and effective law enforcement of all the provisions on any dangerous drug and/or controlled precursor and essential chemical as provided in the Act." We find much logic in the Solicitor Generals interpretation that it is only appropriate that drugs cases being handled by other law enforcement authorities be transferred or referred to the PDEA as the "lead agency" in the campaign against the menace of dangerous drugs. Section 86 is more of an administrative provision. By having a centralized law enforcement body, i.e., the PDEA, the Dangerous Drugs Board can enhance the efficacy of the law against dangerous drugs. To be sure, Section 86 (a) of the IRR emphasizes this point by providing: (a) Relationship/Coordination between PDEA and Other Agencies The PDEA shall be the lead agency in the enforcement of the Act, while the PNP, the NBI and other law enforcement agencies shall continue to conduct anti-drug operations in support of the PDEA xxx. Provided, finally, that nothing in this IRR shall deprive the PNP, the NBI, other law enforcement personnel and the personnel of the Armed Forces of the Philippines (AFP) from effecting lawful arrests and seizures in consonance with the provisions of Section 5, Rule 113 of the Rules of Court. Appellant next argues that the prosecution failed to show compliance with Section 21 of Republic Act No. 9165 regarding the custody and disposition of the evidence against him. Appellant demands absolute compliance with Section 21 and insists that anything short of the adherence to its letter, renders the evidence against him inadmissible. Pertinently, Section 21 of the law provides: SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner: (1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ),

and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. Regrettably, the pertinent implementing rules, Section 21 of the IRR, states: Section 21. a. xxx Provided further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items. It is beyond quibbling then that the failure of the law enforcers to comply strictly with Section 21 was not fatal. It did not render appellants arrest illegal nor the evidence adduced against him inadmissible. The law excuses non-compliance under justifiable grounds. However, whatever justifiable grounds may excuse the police officers involved in the buy-bust operation in this case from complying with Section 21 will remain unknown, because appellant did not question during trial the safekeeping of the items seized from him. Indeed, the police officers alleged violations of Sections 21 and 86 of Republic Act No. 9165 were not raised before the trial court but were instead raised for the first time on appeal. In no instance did appellant least intimate at the trial court that there were lapses in the safekeeping of seized items that affected their integrity and evidentiary value. Objection to evidence cannot be raised for the first time on appeal; when a party desires the court to reject the evidence offered, he must so state in the form of objection. Without such objection he cannot raise the question for the first time on appeal.13 To recapitulate, the challenged buy-bust operation, albeit made without the participation of PDEA, did not violate appellants constitutional right to be protected from illegal arrest. There is nothing in Republic Act No. 9165 which even remotely indicate the intention of the legislature to make an arrest made without the participation of the PDEA illegal and evidence obtained pursuant to such an arrest inadmissible. Moreover, the law did not deprive the PNP of the power to make arrests. WHEREFORE, the appeal is DENIED and the appealed decision of the CA, affirmatorary of that of the trial court, is AFFIRMED. No pronouncement as to costs. SO ORDERED.

FIRST DIVISION

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

- versus -

ALVIN PRINGAS y PANGANIBAN Accused-Appellant.

G.R. No. 175928

Present:

YNARES-SANTIAGO, Chairperson, AUSTRIA-MARTINEZ, CHICO-NAZARIO, NACHURA,* and REYES, JJ.

Promulgated:

August 31, 2007 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION

CHICO-NAZARIO, J.:

On appeal before Us is the Decision[1] of the Court of Appeals in CA-G.R. CR-HC No. 00303 dated 31 August 2006 which affirmed in toto the decision[2] dated 16 August 2004 of the Regional Trial Court (RTC) of Pasig City, Branch 154, convicting accused-appellant Alvin Panganiban Pringas of Violation of Sections 5,[3] 11[4] and 12[5] of Republic Act No. 9165, otherwise known as Comprehensive Dangerous Drugs Act of 2002.

On 25 April 2003, appellant was charged before the RTC of Pasig City with Violation of Sections 5, 11 and 12 of Republic Act No. 9165 under the following informations:

Criminal Case No. 12360-D

On or about April 22, 2003, in Pasig City, and within the jurisdiction of this Honorable Court, the accused, not being lawfully authorized to sell, possess or otherwise use any dangerous drug, did then and there willfully, unlawfully and feloniously sell, deliver and give away to Police Officer Joselito Esmallaner, a police poseur buyer, one (1) small heat-sealed transparent plastic bag containing white crystalline substance weighing three (3) centigrams (0.03 grams), which was found positive to the test for methamphetamine hydrochloride (shabu), a dangerous drug, in violation of the said law.[6]

Criminal Case No. 12361-D

On or about April 22, 2003, in Pasig City, and within the jurisdiction of this Honorable Court, the accused, not being lawfully authorized to possess any dangerous drug, did then and there willfully, unlawfully and feloniously have in his possession and under his custody and control three (3) small heat-sealed transparent plastic bags containing white crystalline substance weighing, the following to wit:

(a)

twenty-five (25) decigrams (0.25 grams);

(b)

two (2) centigrams (0.02 grams); and

(c)

two (2) centigrams (0.02 grams).

for a total of twenty-nine (29) decigrams (0.29 grams), which were found positive to the test for methamphetamine hydrochloride, a dangerous drug, in violation of the said law.[7]

Criminal Case No. 12362-D

On or about April 22, 2003, in Pasig City, and within the jurisdiction of this Honorable Court, the accused, not being lawfully authorized to possess drug paraphernalia, did then and there willfully, unlawfully and feloniously have in is possession, custody and control, the following to wit:

(a) one (1) small tape-sealed transparent plastic bag containing four (4) smaller unsealed transparent plastic bags each with traces of white crystalline substance;

(b)

one (1) improvised water pipes containing traces of white crystalline substance;

(c)

two (2) empty strips of aluminum foil;

(d)

one (1) pin;

(e)

one (1) pair of scissors;

(f)

one (1) improvised bamboo tongs;

(g)

one (1) pack of empty small transparent plastic bag;

(h)

one (1) improvised burner; and

(i)

two (2) disposable lighters.

all are fit or intended for smoking, consuming, administering, injecting any dangerous drug into the body.[8]

On 30 April 2003, appellant, having been charged without the benefit of a preliminary investigation, filed a motion for reinvestigation.[9] On 14 May 2003, the trial court granted the motion and ordered the Pasig City Prosecutor to conduct a preliminary investigation.[10] With the finding of the City Prosecutor that no cogent reason existed to modify or reverse its previous finding of probable cause against accused-appellant, the trial court set the cases for arraignment and trial.[11]

When arraigned on 4 September 2003, appellant, with the assistance of counsel de oficio, pleaded not guilty to the crimes charged.[12]

During the pre-trial conference, appellant admitted the existence and the contents of the Request for Laboratory Examination[13] and the Forensic Chemist Report,[14] with the qualification that the subject of the forensic report was not taken from him, and if ever same was taken from him, it was obtained illegally.[15]

With the termination of the pre-trial conference, the cases were heard jointly.

The prosecution presented two witnesses: PO1 Joselito Esmallaner[16] and SPO3 Leneal Matias, [17] both members of the Station Drug Enforcement Unit of the Pasig City Police Station.

The version of the prosecution is as follows:

On 22 April 2003, SPO4 Danilo Tuao, Officer-in-Charge of the Station Drug Enforcement Unit of the Pasig City Police Station, designated PO1 Joselito Esmallaner to act as a poseur-buyer in a buy-bust operation to be conducted against appellant along Beverly Street, Barangay Buting, Pasig City. At around 10:30 p.m., the buy-bust team headed by SPO3 Leneal Matias arrived at the target area. PO1 Esmallaner and the informant proceeded to the unnumbered house of appellant, while SPO3 Matias and the other members of the team positioned themselves around ten (10) meters away to serve as back-up.

After the informant knocked on appellants front door, the latter came out. Upon recognizing the informant, appellant asked, Pare, ikaw pala. Bibili ka ba? The informant who was standing next to PO1 Esmallaner replied Oo, itong kasama ko kukuha. Appellant then

asked PO1 Esmallaner how much drugs he intended to buy to which PO1 Esmallaner replied, P100 lang. PO1 Esmallaner thereafter gave a one hundred peso (P100.00) bill to the appellant. Thereafter, the appellant went inside the house. Appellant returned and handed to PO1 Esmallaner a plastic sachet containing a white crystalline substance later found to be shabu.[18]

Upon receiving the plastic sachet, PO1 Esmallaner grabbed appellants hand and got the P100.00 bill from the right front pocket of appellants pants. He introduced himself as a police officer and informed the appellant of his violation and his constitutional rights. PO1 Esmallaner then marked the plastic sachet[19] and placed his initials JE on the upper right portion of the P100.00[20] bill with serial number FX230133.[21]

After seeing that PO1 Esmallaner tried to grab the hand of appellant, who was able to run inside the house and tried to lock the door, SPO3 Matias and the other members of the team followed PO1 Esmallaner inside appellants house. Matias saw three pieces of heat-sealed transparent plastic sachets[22] containing a white crystalline substance which turned out to be shabu, two disposable lighters,[23] six strips of aluminum foil with traces of shabu,[24] improvised water pipe used as tooter,[25] improvised burner,[26] wooden sealer, small scissors, [27] 14 pieces of transparent plastic sachets,[28] and one small needle[29] on top of a small chair (bangkito). The items confiscated were marked and turned over to the Investigator who requested laboratory examination on said items.

On 23 April 2003, Chemistry Report No. D-733-03E[30] was issued with the conclusion that the four sachets, together with four other unsealed transparent plastic bags and a water pipe used as tooter, taken from appellant, were positive for Methamphetamine Hydrochloride (shabu). On the same date, poseur-buyer PO1 Esmallaner and team leader SPO3 Matias executed their Joint Affidavit of Arrest.[31]

For the defense, appellant[32] took the witness stand together with his common-law wife, Gina Dean.[33]

Appellant and his common-law wife deny that a buy-bust occurred. Appellant claims that at about 10:00 p.m. of 22 April 2003, he and his common-law wife were with their three children in their house in Beverly Street, Buting, Pasig City, when somebody kicked the door of their house. Appellant was in the comfort room, while his common-law wife was in the bedroom taking care of their children. Thereafter, four persons, later identified as police officers Esmallaner, Mapula, Espares and Familiara, entered without any warrant of arrest or search warrant. He asked them what they wanted and he was told that they were going to arrest him. When he asked for the reason why he was being arrested, he was told that he would just be informed in their office. With his hands on his back, appellant was handcuffed. The policemen subsequently conducted a search in the house, but they neither recovered nor took anything. After that, appellant was brought to the police station, investigated and placed in jail. He added that the violent entry made by the policemen was witnessed by some of his neighbors, namely, Buboy, Macmac and Zaldy, who were then having a drinking session.

On 19 August 2004, the trial court promulgated its decision finding appellant guilty beyond reasonable doubt of the crimes charged. It disposed of the cases as follows:

WHEREFORE, premises considered, the accused ALVIN PRINGAS is hereby found GUILTY beyond reasonable doubt of Violation of Section 5 of R.A. 9165 (illegal sale of shabu) and he is hereby sentenced to suffer the penalty of LIFE IMPRISONMENT and to pay a fine of P500,000.00.

Accused ALVIN PRINGAS is also found GUILTY OF Violation of Section 11 of the same law and he is hereby sentenced to suffer the indeterminate penalty of TWELVE (12) YEARS and ONE (1) DAY to FIFTEEN (15) YEARS of imprisonment and to pay a fine of P400,000.00 and also of violation of Section 12 of R.A. 9165, and he is hereby sentenced to suffer imprisonment from SIX (6) MONTHS (and) ONE (1) DAY as minimum to THREE (3) YEARS and ONE (1) DAY as maximum, and to pay a fine of P10,000.00.

Considering the penalty imposed, the immediate commitment of the accused to the National Bilibid Prisons is ordered.

The Court fully realizes that the penalty prescribed by law for the offense committed by the accused is quite severe. However, the Court will not question the wisdom of the law and of the legislators who passed it. Dura lex, sed lex. The only thing that the Court can do is to recommend that the accused be pardoned after he shall have served the minimum period of the penalty imposed on him.[34]

On 3 September 2004, appellant, through counsel, appealed the decision to the Court of Appeals via a Notice of Appeal.[35] With the filing of the Notice of Appeal, the trial court transmitted[36] the records of the case to the Court of Appeals for review pursuant to People v. Mateo.[37]

In its Decision dated 31 August 2006, the Court of Appeals dismissed appellants appeal and affirmed in toto the decision of the trial court.[38]

Unsatisfied, appellant appealed his conviction before this Court by way of a Notice of Appeal.[39]

With the elevation of the records to the Court and the acceptance of the appeal, the parties were required to file their respective supplemental briefs, if they so desired, within 30 days from notice.[40] The parties manifested that they were not filing supplemental briefs, arguing that the issues of the case had been discussed in their respective briefs.[41]

Appellant makes a lone assignment of error, to wit:

THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF THE OFFENSES CHARGED DESPITE THE INADMISSIBILITY OF THE EVIDENCE HAVING BEEN OBTAINED IN VIOLATION OF SECTIONS 21 AND 86, REPUBLIC ACT NO. 9165.

Appellant argues that the apprehending police officers failure to comply with the provisions (Sections 21 and 86) of Republic Act No. 9165 casts doubt on the validity of appellants arrest and the admissibility of the evidence allegedly seized from him. He maintains that since the procurement of the evidence, both documentary and testimonial, during the buybust operation was violative of said law and of his constitutional right against illegal arrest, the same should not have been received in evidence to prove his guilt they being inadmissible under the law.

Appellant claims that the police officers violated Section 86 of Republic Act No. 9165 when the alleged buy-bust operation that led to the apprehension of appellant was conducted without the involvement of the Philippine Drug Enforcement Agency (PDEA). It is his contention that nowhere in the Joint Affidavit of Arrest executed by the members of the arresting team was it shown that the buy-bust operation was conducted with the assistance, coordination, knowledge or consent of the PDEA.

We find this claim untenable.

In the Joint Affidavit of Arrest, it is stated that That, on or about 10:30 PM April 22, 2003, as instructed by SPO4 DANILO TUAO, OIC/SDEU, this Office effected a coordination to (sic) Metro Manila Regional Office of PDEA and formed a team of SDEU operatives with a confidential informant to conduct anti-narcotics/Buy-bust operation against the said person x x x.[42] This portion of the affidavit clearly negates appellants claim that the buy-bust operation subject of the case was not with the involvement of the PDEA. Even assuming ex gratia argumenti that the aforementioned statement was not contained in the affidavit, appellants claim of lack of involvement of the PDEA will render neither his arrest illegal nor the evidence seized from him inadmissible. Quoting People v. Sta. Maria,[43] we resolved the very same issue in this wise:

Appellant would next argue that the evidence against him was obtained in violation of Sections 21 and 86 of Republic Act No. 9165 because the buy-bust operation was made without any involvement of the Philippine Drug Enforcement Agency (PDEA). Prescinding therefrom, he concludes that the prosecutions evidence, both testimonial and documentary, was inadmissible having been procured in violation of his constitutional right against illegal arrest.

The argument is specious.

Section 86 of Republic Act No. 9165 reads:

Sec. 86. Transfer, Absorption, and Integration of All Operating Units on Illegal Drugs into the PDEA and Transitory Provisions. The Narcotics Group of the PNP, the Narcotics Division of the NBI and the Customs Narcotics Interdiction Unit are hereby abolished; however they shall continue with the performance of their task as detail service with the PDEA, subject to screening, until such time that the organizational structure of the Agency is fully operational and the number of graduates of the PDEA Academy is sufficient to do the task themselves: Provided, That such personnel who are affected shall have the option of either being integrated into the PDEA or remain with their original mother agencies and shall, thereafter, be immediately reassigned to other units therein by the head of such agencies. Such personnel who are transferred, absorbed and integrated in the PDEA shall be extended appointments to positions similar in rank, salary, and other emoluments and privileges granted to their respective positions in their original mother agencies.

The transfer, absorption and integration of the different offices and units provided for in this Section shall take effect within eighteen (18) months from the effectivity of this Act: Provided, That personnel absorbed and on detail service shall be given until five (5) years to finally decide to joint the PDEA.

Nothing in this Act shall mean a diminution of the investigative powers of the NBI and the PNP on all other crimes as provided for in their respective organic laws: Provided, however, That when the investigation being conductetd by the NBI, PNP or any ad hoc anti-drug task force is found to be a violation of any of the provisions of this Act, the PDEA shall be the lead agency. The NBI, PNP or any of the task force shall immediately transfer the same to the PDEA: Provided, further, That the NBI, PNP and the Bureau of Customs shall maintain close coordination with the PDEA on all drug related matters.

Cursory read, the foregoing provision is silent as to the consequences of failure on the part of the law enforcers to transfer drug-related cases to the PDEA, in the same way that the Implementing Rules and Regulations (IRR) of Republic Act No. 9165 is also silent on the matter. But by no stretch of imagination could this silence be interpreted as a legislative intent to make an arrest without the participation of PDEA illegal nor evidence obtained pursuant to such an arrest inadmissible.

It is a well-established rule of statutory construction that where great inconvenience will result from a particular construction, or great public interests would be endangered or sacrificed, or great mischief done, such construction is to be avoided, or the court ought to presume that such construction was not intended by the makers of the law, unless required by clear and unequivocal words.

As we see it, Section 86 is explicit only in saying that the PDEA shall be the lead agency in the investigations and prosecutions of drug-related cases. Therefore, other law enforcement bodies still possess authority to perform similar functions as the PDEA as long as illegal drugs cases will eventually be transferred to the latter. Additionally, the same provision states that PDEA, serving as the implementing arm of the Dangerous Drugs Board, :shall be responsible for the efficient and effective law enforcement of all the provisions on any dangerous drug and/or controlled precursor and essential chemical as provided in the Act. We find much logic in the Solicitor Generals interpretation that it is only appropriate that drugs cases being handled by other law enforcement authorities be transferred or referred to the PDEA as the lead agency in the campaign against the menace of dangerous drugs. Section 86 is more of an administrative provision. By having a centralized law enforcement body, i.e., the PDEA, the Dangerous Drugs Board can enhance the efficacy of the law against dangerous drugs. To be sure, Section 86(a) of the IRR emphasizes this point by providing:

(a) Relationship/Coordination between PDEA and Other Agencies. The PDEA shall be the lead agency in the enforcement of the Act, while the PNP, the NBI and other law enforcement agencies shall continue to conduct anti-drug operations in support of the PDEA x x x. Provided, finally, that nothing in this IRR shall deprive the PNP, the NBI, other law enforcement personnel and the personnel of the Armed Forces of the Philippines (AFP) from effecting lawful arrests and seizures in consonance with the provisions of Section 5, Rule 113 of the Rules of Court.

As regards the non-participation of PDEA in a buy-bust operation, we said:

[T]he challenged buy-bust operation, albeit made without the participation of PDEA, did not violate appellants constitutional right to be protected from illegal arrest. There is nothing in Republic Act No. 9165 which even remotely indicate the intention of the legislature to make an arrest made without the participation of the PDEA illegal and evidence obtained pursuant to such an arrest inadmissible. Moreover, the law did not deprive the PNP of the power to make arrests. [44]

As regards Section 21 of Republic Act No. 9165, appellant insists there was a violation of said section when pictures, showing him together with the confiscated shabu, were not immediately taken after his arrest. He added that the Joint Affidavit of Arrest of the apprehending team did not indicate if the members thereof physically made an inventory of the illegal drugs in the presence of the appellant or his/her representative or counsel, a representative from the media and the Department of Justice, and any elected public official who shall be required to sign the copies of the inventory and given a copy thereof. In short, appellant insists that non-compliance with Section 21 regarding the custody and disposition of the confiscated/seized dangerous drugs and paraphernalia, i.e., the taking of pictures and the making of an inventory, will make these items inadmissible in evidence.

We do not agree. Section 21 reads:

SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof.

Non-compliance by the apprehending/buy-bust team with Section 21 is not fatal as long as there is justifiable ground therefor, and as long as the integrity and the evidentiary value of the confiscated/seized items, are properly preserved by the apprehending officer/team.[45] Its noncompliance will not render an accuseds arrest illegal or the items seized/confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused. In the case under consideration, we find that the integrity and the evidentiary value of the items involved were safeguarded. The seized/confiscated items were immediately marked for proper identification. Thereafter, they were forwarded to the Crime Laboratory for examination.

Though the justifiable ground for non-compliance with Section 21 was not expressly stated by the arresting/buy-bust team, this does not necessarily mean that appellants arrest was illegal or the items seized/confiscated inadmissible. In the case at bar, as in Sta. Maria, the justifiable ground will remain unknown because appellant did not question during the trial the custody and disposition of the items taken from him. Assuming that Sections 21 and 86 were indeed breached, appellant should have raised these issues before the trial court. This, he did not do. Never did he question the custody and disposition of the items that were supposedly taken from him. It was only on appeal before the Court of Appeals that he raised them. This, he cannot do. We held:

The law excuses non-compliance under justifiable grounds. However, whatever justifiable grounds may excuse the police officers involved in the buy-bust operation in this case from complying with Section 21 will remain unknown, because appellant did not question during trial the safekeeping of the items seized from him. Indeed, the police officers alleged violations of Sections 21 and 86 of Republic Act 9165 were not raised before the trial court but were raised

instead for the first time on appeal. In no instance did appellant least intimate at the trial court that there were lapses in the safekeeping of seized items that affected their integrity and evidentiary value. Objection to evidence cannot be raised for the first time on appeal; when a party desires the court to reject the evidence offered, he must so state in the form of objection. Without such objection he cannot raise the question for the first time on appeal.[46]

Appellant was charged with violations of Sections 5, 11 and 12 of Republic Act No. 9165. Appellant was charged with violation of Section 5 for selling 0.03 gram of methamphetamine hydrochloride (shabu). The elements necessary for the prosecution of illegal sale of drugs are: (1) the identity of the buyer and the seller, the object, and consideration; and (2) the delivery of the thing sold and the payment therefor.[47] What is material to the prosecution for illegal sale of dangerous drugs is the proof that the transaction took place, coupled with the presentation in court of evidence of corpus delicti.[48]

The evidence for the prosecution showed the presence of all these elements. The poseurbuyer and the team leader of the apprehending team narrated how the buy-bust happened, and that the shabu sold was presented and identified in court. The poseur-buyer, PO1 Joselito Esmallaner, identified appellant as the seller of the shabu. Esmallaners testimony was corroborated by the team leader, SPO3 Leneal Matias. The white crystalline substance weighing 0.03 grams which was bought from appellant for P100.00 was found positive for methamphetamine hydrochloride (shabu) per Chemistry Report No. D-733-03E.

In this jurisdiction, the conduct of a buy-bust operation is a common and accepted mode of apprehending those involved in the illegal sale of prohibited or regulated drugs. It has been proven to be an effective way of unveiling the identities of drug dealers and of luring them out of obscurity.[49] Unless there is clear and convincing evidence that the members of the buy-bust team were inspired by any improper motive or were not properly performing their duty, their testimonies on the operation deserve full faith and credit.[50]

In the case at bar, we find the testimonies of PO1 Joselito Esmallaner and SPO3 Leneal Matias credible. It is a fundamental rule that findings of the trial courts which are factual in nature and which involve credibility are accorded respects when no glaring errors, gross misapprehension of facts and speculative, arbitrary and unsupported conclusions can be gathered from such findings. The reason for this is that the trial court is in a better position to decide the credibility of witnesses, having heard their testimonies and observed their deportment and manner of testifying during the trial.[51] The rule finds an even more stringent application where said findings are sustained by the Court of Appeals.[52] Finding no reason to depart from the findings of the trial court and the Court of Appeals, we stand by their findings.

We, likewise, uphold the presumption of regularity in the performance of official duties. Said presumption was not overcome, as there was no evidence showing that PO1 Joselito Esmallaner and SPO3 Leneal Matias were impelled by improper motive. Appellant and his common-law wife testified that the members of the buy-bust team were complete strangers.[53]

Appellants defense that there was no buy-bust operation deserves scant consideration. Having been caught in flagrante delicto, his identity as seller of the shabu can no longer be doubted. Against the positive testimonies of the prosecution witnesses, appellants plain denial of the offenses charged, unsubstantiated by any credible and convincing evidence, must simply fail.[54] Being his common-law wife, we find Gina Dean not to be a credible witness. Appellant said three of his neighbors witnessed the violent entry made by the policemen in his house, but he failed to present them or any of them to prove his point.

Appellant was, likewise, charged with possession of three sachets of shabu with a total weight of 0.29 gram. In illegal possession of dangerous drugs, the elements are: (1) the accused is in possession of an item or object which is identified to be a prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possessed the said drug.[55] All these elements have been established.

SPO3 Leneal Matias narrated how he discovered the three pieces of heat-sealed transparent plastic sachets containing a white crystalline substance and other drug paraphernalia on top of a small chair (bangkito) in the house of appellant.

Q.

After the accused handed something to PO1 Esmallaner, what else happened?

A. I saw PO1 Esmallaner try to grab the hand of the accused, but the accused was able to run inside their house, and tried to close the door, sir.

Q.

As a member of the back-up team upon seeing this incident, what did you do, if any?

A.

We gave support to PO1 Esmallaner, sir.

Q.

Will you please tell us what kind of support did you give to PO1 Esmallaner?

A.

To arrest the accused, sir.

Q.

What did you do in particular?

A. PO1 Esmallaner followed the accused inside me and my group followed Esmallaner also inside the house, sir.

Q.

So, in other words you, and your co-members also went inside the house?

A.

Yes, sir.

Q.

When [you] went inside the house, what did you find out if any?

A. PO1 Esmallaner accosted the accused, while I discovered three (3) pieces of heat sealed transparent plastic sachet containing undetermined amount of white crystalline substance suspected to be shabu, and other paraphernalia on top of the small bangkito, sir.

Q.

Were these three (3) sachet and paraphernalia were scattered on the small bangkito?

A.

Yes, sir.

Q.

And what did you do, if any when you discovered the presence of these items?

A.

I confiscated it and then I marked it, sir.

Q.

When you said it what would this?

A.

The drug paraphernalia, and the heat plastic sachet, sir.

Q. Could you remember one by one what are those paraphernalia that you confiscated and marked it?

A. The paraphernalia are two (2) disposable lighter colored red and yellow, six (6) pieces of small stripe of aluminum foil with traces of suspected shabu improvised water pipe used as tooter, improvised burner, wooden sealer, and the three (3) pieces heat plastic sachet, fourteen (14) pieces of transparent plastic sachet. That is all I can remember, sir.

Q.

Did you place markings on that items that you confiscated?

A.

Yes, sir.[56]

Appellant was indeed the owner of these items for they were found in his house on top of the bangkito following the buy-bust operation and after his arrest. The substance in the plastic sachets was shabu as confirmed by Chemistry Report No. D-733-03E. Finally, the drug paraphernalia seized are sufficient to prove that appellant also violated Section 12 of Republic Act No. 9165.

Reviewing the penalties imposed by the trial court as affirmed by the Court of Appeals, we find them to be in order.

WHEREFORE, premises considered, the instant appeal is DENIED. The Decision of the Court of Appeals in CA-G.R. CR-HC No. 00303 dated 31 August 2006 which affirmed in toto the decision of the Regional Trial Court (RTC) of Pasig City, Branch 154, convicting accused-appellant Alvin Panganiban Pringas of Violation of Sections 5, 11 and 12 of Republic Act No. 9165, is hereby AFFIRMED. No costs.

SO ORDERED.

Republic of the Philippines SUPREME COURT Manila G.R. No. 180693 September 4, 2009

BONIFACIO DOLERA Y TEJADA, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION CARPIO MORALES, J.: Bonifacio T. Dolera (petitioner) was charged before the Regional Trial Court of Quezon City with violation of Section 11, Article II of Republic Act No. 9165 (R.A. 9165) or the Comprehensive Dangerous Drugs Act of 2002 under an Information reading

xxxx That on or about the 14th day of August, 2003 in Quezon City, Philippines, the said accused not being authorized by law to possess or use any dangerous drug, did then and there, wilfully, unlawfully and knowingly have in [his] possession and control, Zero point twenty (0.20) grams of white crystalline substance containing Methylamphetamine [sic] hydrochloride a dangerous drug.1 CONTRARY TO LAW. From the evidence for the prosecution, the following version is gathered. On August 14, 2003, at 3:30 in the afternoon, PO2 Reynaldo Labon (PO2 Labon), PO1 Arnold Pealosa (PO1 Pealosa) and PO2 Victor Aquino, having received a report of drug trafficking in the vicinity of Bicol Street in Barangay Payatas, Quezon City, conducted a surveillance along the area.2 While at the target area, PO2 Labon saw petitioner, at a distance of seven meters, standing near an alley adjoining Bicol Street, scrutinizing a transparent plastic sachet containing white crystalline substance. PO2 Labon, who was in civilian clothes, thus alighted from the vehicle, followed by PO1 Penalosa, and approached petitioner.3 After introducing himself as a policeman, PO2 Labon asked petitioner what he was holding, but the latter, who appeared "natulala,"4 did not reply. Suspecting that the white crystalline substance inside the plastic sachet was shabu, PO2 Labon confiscated the same5 and handcuffed petitioner. PO1 Pealosa then frisked petitioner and recovered a heat-sealed plastic sachet also containing white crystalline substance from the right front pocket of petitioners pants. After informing him of his constitutional rights, petitioner was brought to the police station for further investigation.6 At the police station, PO2 Labon and PO1 Pealosa marked the plastic sachets with their respective initials "RL" and "AP"7 before turning them over to the case investigator. Later in the day, the two plastic sachets including their contents were brought to the PNP Crime Laboratory for examination. The Chemistry Report8 which recorded the result of the laboratory examination showed that each of the sachets contained 0.10 grams of shabu, a dangerous drug. The parties9 having stipulated that forensic analyst Leonard M. Jabonillo examined the substances and came up with his findings in his Report, his testimony was dispensed with. Upon the other hand, petitioner, denying the charge, gave the following version: He was standing infront of his house waiting for a ride to the public market when three men in civilian clothes alighted from a white "FX" and forced him to board the vehicle. The three brought him to the police station where he was asked to identify a drug pusher in their place. When he replied that he did not know of any, they told him that "tutuluyan nila ako." He was then detained and was subjected to inquest proceedings after four days. 10 The trial court, by Decision11 of July 20, 2005, convicted petitioner and sentenced him "to suffer a jail term of twelve years and one day as minimum and thirteen years as maximum and to pay a fine of P300,000." The trial court observed: The court finds it quite improbable that police officers in broad daylight would just stop and take away with them a person who is doing nothing but standing on the street in front of his house. xxxx

The accused was brought to the police station for investigation and when asked if it is true that he has shabu, the answer of the accused: "Wala naman po" does not inspire the confidence that an innocent person, who is 35 years old and married with a baby, would have said. Moreover, the defense of the accused becomes more unconvincing in view of the fact that not even his wife with a baby and his auntie who lives in the same house with him came to court despite the lapse of a long time, to vouch for the accused. His neighbors whom the accused said saw him being arrested likewise did not come forward to corroborate his claimed innocence. (Underscoring supplied) The Court of Appeals, before which appellant appealed and questioned, among other things, his warrantless arrest, by Decision12 of October 30, 2006, affirmed petitioners conviction. In brushing aside appellants questioning of his warrantless arrest, the appellate court held that he had waived the same when he submitted himself to the jurisdiction of the trial court. On the merits, the appellate court held: The bare denial of accused-appellant that shabu was found in his possession by the police officers deserves scant consideration. Accused-appellant testified that his arrest was witnessed by several persons who know him and who are known to him, however, he did not present anyone of them to corroborate his claim that no shabu was recovered from him when he was arrested by the police officers. It has been ruled time and again that a mere denial, just like alibi, is a self-serving negative evidence which cannot be accorded greater evidentiary weight than the declaration of credible witnesses who testify on affirmative matters. As between a categorical testimony that rings of truth on one hand, and a bare denial on the other, the former is generally held to prevail. Moreover, accused-appellant admitted that he does not know the police officers who arrested him as it was the first time that he saw them. In fact, accused-appellant does not impute any improper motive against the police officers who arrested him. The presumption that the police officers performed their duties in a regular manner, therefore, stands. (Emphasis and underscoring supplied) His motion for reconsideration having been denied by Resolution13 of November 21, 2007, petitioner filed the present petition for review. Petitioner initially takes issue on the appellate courts ruling that he waived any objection to his arrest when he entered a plea upon arraignment and actively participated in the trial. Underscoring that an appeal in a criminal case opens the whole case for review, petitioner reiterates his lament that he was arrested without a warrant, asserting that "there was nothing unusual in [his] behavior then which w[ould] engender a genuine reason to believe that he was committing something illegal which would compel the police officers to approach him."14 Respecting the Chemistry Report, petitioner contends that it is hearsay, as the forensic analyst who prepared the document was never presented to identify it and testify thereon.15 Moreover, petitioner contends that the prosecution failed to establish the chain of custody of the seized illegal drugs to thus cast serious doubt on whether the specimens presented in court were the ones allegedly confiscated from him.16 The Solicitor General, maintaining, on the other hand, that the arrest of petitioner needed no warrant as it was done while petitioner was committing illegal possession of shabu, posits: Since PO2 Labon and PO1 Pealosa were conducting a surveillance based on a report of rampant drug trafficking in the area, the chance encounter with petitioner who was holding a plastic sachet with white crystalline contents gave the police officers reasonable suspicion to accost him and ask about the contents thereof. The police officers suspicion was all the more heightened when petitioner was dumbfounded when asked about the plastic sachet.17

The Solicitor General further posits that the prosecution did not have to present the forensic analyst in view of petitioners stipulation that the two plastic sachets seized from him were found to be positive for shabu. Finally, the Solicitor General maintains that the seized plastic sachets were properly submitted to the police crime laboratory for testing, and, at all events, petitioner failed to rebut the presumption of regularity in the performance by the police officers of their official duties. The petition is meritorious. Prefatorily, the Court finds in order the appellate courts observation that it is too late for petitioner to question the legality of his arrest in view of his having already entered his plea upon arraignment and participated at the trial. Having failed to move to quash the information on that ground before the trial court,18 and having submitted himself to the jurisdiction of the trial court, any supposed defect in his arrest was deemed waived. For the legality of an arrest affects only the jurisdiction of the court over his person.19 It is with respect to the failure of the prosecution to prove the chain of custody of the allegedly seized evidence that the Court departs from the findings of the appellate and lower courts to warrant a reversal of petitioners conviction. For a prosecution for illegal possession of a dangerous drug to prosper, it must be shown that (a) the accused was in possession of an item or an object identified to be a prohibited or regulated drug; (b) such possession is not authorized by law; and (c) the accused was freely and consciously aware of being in possession of the drug.20 Thus Mallillin v. People21 emphasized: Prosecutions for illegal possession of prohibited drugs necessitates [sic] that the elemental act of possession of a prohibited substance be established with moral certainty, together with the fact that the same is not authorized by law. The dangerous drug itself constitutes the very corpus delicti of the offense and the fact of its existence is vital to a judgment of conviction. Essential therefore in these cases is that the identity of the prohibited drug be established beyond doubt. Be that as it may, the mere fact of unauthorized possession will not suffice to create in a reasonable mind the moral certainty required to sustain a finding of guilt. More than just the fact of possession, the fact that the substance illegally possessed in the first place is the same substance offered in court as exhibit must also be established with the same unwavering exactitude as that requisite to make a finding of guilt. The chain of custody requirement performs this function in that it ensures that unnecessary doubts concerning the identity of the evidence are removed. (Italics in the original; emphasis and underscoring supplied) The standard operating procedure on the seizure and custody of dangerous drugs is found in Section 21, Article II of R.A. No. 9165 which provides: 1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. (Emphasis supplied) Section 21(a) of Article II of the Implementing Rules and Regulations of R.A. No. 9165 more specifically mandates that: (a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the

presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items. (Emphasis and underscoring supplied) Thus, with respect to the marking of dangerous drug by the apprehending officer or team in case of warrantless seizures such as in this case, it must be done at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable. This is in line with the "chain of custody" rule. People v. Sanchez22 elucidates: . . . [I]n case of warrantless seizures such as a buy- bust operation, the physical inventory and photograph shall be conducted at the nearest police station or office of the apprehending officer/team, whichever is practicable; however, nothing prevents the apprehending officer/team from immediately conducting the physical inventory and photography of the items at the place where they were seized, as it is more in keeping with the laws intent of preserving their integrity and evidentiary value. What Section 21 of R.A. No. 9165 and its implementing rule do not expressly specify is the matter of "marking" of the seized items in warrantless seizures to ensure that the evidence seized upon apprehension is the same evidence subjected to inventory and photography when these activities are undertaken at the police station rather than at the place of arrest. Consistency with the "chain of custody" rule requires that the "marking" of the seized items to truly ensure that they are the same items that enter the chain and are eventually the ones offered in evidence should be done (1) in the presence of the apprehended violator (2) immediately upon confiscation. This step initiates the process of protecting innocent persons from dubious and concocted searches, and of protecting as well the apprehending officers from harassment suits based on planting of evidence under Section 29 and on allegations of robbery or theft. (Emphasis and underscoring supplied) For greater specificity, "marking" means the placing by the apprehending officer or the poseurbuyer of his/her initials and signature on the item/s seized. If the physical inventory and photograph are made at the nearest police station or office as allowed by the rules, the inventory and photography of the seized items must be made in accordance with Sec. 2 of Board Resolution No. 1, Series of 2002, but in every case, the apprehended violator or counsel must be present. Again, this is in keeping with the desired level of integrity that the handling process requires. Thereafter, the seized items shall be placed in an envelope or an evidence bag unless the type and quantity of the seized items require a different type of handling and/or container. The evidence bag or container shall accordingly be signed by the handling officer and turned over to the next officer in the chain of custody. (Italics in the original; emphasis and underscoring supplied) Ranged against these evidentiary norms, the prosecutions terse treatment of its exacting duty to prove beyond reasonable doubt the guilt of accused-petitioner founders. Consider PO1 Pealosas following testimony: FIS. ARAULA: You said you turned over the confiscated item to the investigator? WITNESS:

Yes sir. FIS. ARAULA: Before you turned over the item what did you do with that item? WITNESS: We marked it sir. FIS. ARAULA: What markings was placed on the items before it was given to the Police Investigator? WITNESS: Our initial sir. FIS. ARAULA: What is your initial? WITNESS: AP sir. FIS. ARAULA: What about the items, what markings? WITNESS: RL Reynaldo Labon sir. xxxx FIS. ARAULA: After you turned over the specimen to the investigator, what happened to the specimen? WITNESS: It was turned over to the PNP Crime Laboratory sir. x x x x (Emphasis and underscoring supplied) 23 From the foregoing testimony of prosecution witness PO2 Penalosa which was essentially echoed by prosecution witness PO2 Labon, there is no showing how the flow of the custody of the drugs went from the time of the arrest of petitioner and alleged confiscation of the sachets up to the turnover thereof at the police station to the investigator according to PO2 Penalosa, to the desk officer according to PO2 Labon. Neither is there a showing that the items were inventoried or photographed and marked in the presence of petitioner in accordance with statutory requirements. In fact, where in the police

station and at what stage of the investigation was the supposed marking of evidence done were not even indicated. And there is no indication whether the investigator and the desk officer were one and the same person, and what steps were undertaken to insure the integrity of the evidence. Notably, the record shows that it was PO1 Pealosa who delivered the items to the crime laboratory.24 How they were turned over to him by the investigator or desk officer, the prosecution failed to give even a simple indication thereof. There is thus a reasonable likelihood of substitution along the chain in that the two plastic sachets that tested positive for shabu were different from the items allegedly seized from petitioner. The Court has long considered such possibility of substitution as fatal for the prosecution.25 Worse, the two marked plastic sachets were not even presented, hence, not identified in open court by the police officers-witnesses and there is no explanation extant in the record of what happened to them after their laboratory examination. Segueing to the Solicitor Generals assertion that appellant already admitted that the two plastic sachets were seized from him and that the contents thereof were tested positive for shabu as contained in the trial courts Order of September 13, 2004 reading: It is hereby stipulated by the parties that the items allegedly confiscated from the accused were submitted to the crime lab for examination and the findings were put into writing and the same were marked by the prosecution as EXHIBIT B-Request for laboratory examination; EXHIBIT C Chemistry Report No. D-765-2003; C-1 Findings; EXHIBIT D Certification; EXHIBIT E Specimen A; E-1 marking lmj; E-2 marking RL; EXHIBIT F Specimen B; F-1 marking lmj; F-2 marking AP and EXHIBIT G Brown envelope. In view of this stipulation, the testimony of Engr. Leonard Jabonillo is hereby dispensed with. x x x x (Italics, emphasis and underscoring supplied), the same fails to impress. The above-quoted stipulation of facts is self-explanatory. What was stipulated was that, among other things, "the items allegedly confiscated" were submitted for laboratory examination. The Chemistry Report only confirmed the contents of two plastic sachets. Whether they were the same packets allegedly confiscated from petitioner, the prosecution failed to establish as there was yet again an unexplained break in the chain. That the prosecution offered in evidence the request for laboratory examination, the chemistry report and the certification from the forensic analyst26 has no bearing on the question of whether the specimens submitted for chemical analysis were the same allegedly seized from petitioner. All that these exhibits proved were the existence and authenticity of the request for laboratory examination and the results of said examination, but not the required chain of custody from the time of seizure of the evidence until its presentation in court. While there is no need to present all persons who came into contact with the seized drugs to testify in court,27 the prosecution still has to convincingly establish that the chain of custody remained unbroken throughout, and the seized items specifically identified. This the prosecution failed to discharge.

The appellate courts reliance on the presumption of regularity in the performance of official functions would not suffice to uphold petitioners conviction. Once challenged by evidence, such as in this case, the presumption of regularity cannot be regarded as binding truth and cannot prevail over the presumption of innocence of petitioner-accused.281avvphi1 Although petitioners defense is denial which, standing alone, is inherently weak, the Court has repeatedly stressed that the conviction of an accused must rest on the strength of the prosecutions evidence and not on the weakness of his defense. The prosecution having failed to overturn the constitutional presumption of innocence in favor of petitioner, his acquittal is in order. A final word. The Court notes the trial courts seemingly haphazard consideration of the circumstances of the case as mirrored in its decision. Its three-paragraph ratio decidendi only discussed the defense evidence and even rendered judgment on the basis of conjectures and suppositions. Noticeably, the decision never alluded to the prosecution evidence, nor even tackled in passing the basis of the penalties it imposed. Exhorted to be extra vigilant in trying drug-related cases, courts should give more than lip service to the mandate of administering justice by undertaking a serious and comprehensive consideration of the pros and cons of the evidence offered by both the prosecution and defense in determining the merits of a case.29 WHEREFORE, for failure of the prosecution to prove his guilt beyond reasonable doubt, petitioner, BONIFACIO T. DOLERA, is ACQUITTED of the crime of illegal possession of dangerous drugs. Let a copy of this Decision be furnished the Director of the Bureau of Corrections, Muntinlupa City who is ORDERED to cause the immediate release of petitioner, unless he is being lawfully held for another cause, and to inform this Court of action taken within ten days from notice. No pronouncement as to costs. SO ORDERED. Republic of the Philippines Supreme Court

SECOND DIVISION

PEOPLE OF THE PHILIPPINES, Appellee,

- versus -

NICOLAS GUTIERREZ y LICUANAN Appellant. G.R. No. 179213

Present:

QUISUMBING, J., Chairperson, CARPIO MORALES, BRION, DEL CASTILLO, and ABAD, JJ.

Promulgated:

September 3, 2009

x-------------------------------------------------- x

DECISION

CARPIO MORALES, J.:

Assailed in the present appeal is the April 30, 2007 Decision of the Court of Appeals in CAG.R. CR-HC No. 01991 affirming that of Branch 267 of the Regional Trial Court of Pasig City in Criminal Case No. 12514-D finding Nicolas Gutierrez y Licuanan alias Nick (appellant) guilty beyond reasonable doubt of violation of Section 5, Article II of Republic Act (R.A.) No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002.

Appellant was charged with illegal sale of 0.05 gram of shabu and illegal possession of paraphernalia fit or intended for smoking . . . or introducing any dangerous drug into the body by two separate Informations, both dated June 19, 2003, reading: First Information

The Prosecution, through the undersigned Public Prosecutor, charges Nicolas Gutierrez y Licuanan with the crime of violation of Section 5, Art. II of R.A. 9165 (SC-AM 99-1-13), committed as follows:

On or about June 16, 2003, in Pasig City, and within the jurisdiction of this Honorable Court, the accused, not being lawfully authorized by law, did then and there willfully, unlawfully and feloniously sell, deliver and give away to PO1 Michael P. Espares, a police poseur-buyer, one (1) heat-sealed transparent plastic sachet containing five centigrams (0.05 grams) [sic] of white crystalline substance, which was found positive to the test for methylamphetamine hydrochloride, a dangerous drug, in violation of the said law.[1] (Underscoring supplied)

xxxx

Second Information

The Prosecution, through the undersigned Public Prosecutor, charges Nicolas Gutierrez y Licuanan with the crime of violation of Section 12, Art. II of R.A. No. 9165, committed as follows:

On or about June 16, 2003 in Pasig City, and within the jurisdiction of this Honorable Court, the accused, without having been duly authorized by law, did then and there willfully, unlawfully and feloniously have in his possession and under his custody and control the following paraphernalias fit or intended for smoking, consuming, administering or introducing any dangerous drug into the body, to wit:

a. one (1) unsealed transparent plastic sachet containing traces of white crystalline substance marked as exh-B;

b.

one (1) pair of scissors marked as exh.-C; and

c. one (1) transparent plastic sachet containing five (5) empty transparent plastic sachets marked as exh-D.

xxxx

specimen marked as exh-B was found positive to the test for methylamphetamine hydrochloride, a dangerous drug, in violation of the said law.[2] (Underscoring supplied)

On arraignment, appellant pleaded not guilty.[3] The trial court, after trial, acquitted appellant of the charge subject of the second Information (illegal possession of paraphernalia), hence, this Decision shall dwell only on the review of appellants conviction of selling shabu.

From the testimonies of three members of the team which conducted a buy-bust transaction that spawned the filing of the Informations PO1 Michael Espares (PO1 Espares),[4] SPO3 Leneal Matias (SPO3 Matias),[5] and PO1 Allan Mapula (PO1 Mapula),[6] the following version of the prosecution is gathered:

At around 5:00 p.m. on June 16, 2003, while on duty at the Drug Enforcement Unit of the Pasig City Police Force, SPO3 Matias received information via telephone from a concerned citizen that a certain alias Nick, later identified to be appellant, was peddling shabu along San Agustin Street, Barangay Palatiw, Pasig City. On the instructions of SPO3 Matias, PO1 Espares and PO1 Mapula proceeded to, and surveilled, the area and confirmed the information.

SPO3 Matias thus formed a buy-bust team, which he headed, with PO1 Espares as poseurbuyer, and PO1 Mapula and PO1 Michael Familara (PO1 Familara) as members. Five marked twenty-peso bills were given to PO1 Espares as buy-bust money. The team thereafter went to the target area and met with a confidential asset who was to assist them in the operation.

While the other members of the team were strategically positioned, the asset, accompanied by PO1 Espares, approached appellant and asked him Pare, meron ka ba diyan? Bibili kami. Bibili ako ng piso. Apparently not having heard the entire utterances, appellant

replied, Magkano ba bibilhin mo? (How much are you buying?), to which PO1 Espares replied Piso lang, eto pera at the same time tendering the buy-bust money which appellant took and placed in his right front pocket. Appellant then drew from his pants back pocket a black plastic case, opened it and took one plastic sachet containing a white crystalline substance which he handed to PO1 Espares. PO1 Espares thereupon executed the pre-arranged signal, apprehended appellant, and confiscated the black plastic case which appellant was holding. The case yielded a pair of scissors, an unsealed plastic sachet containing traces of white crystalline substance, and five empty plastic sachets.

Heeding the pre-arranged signal, the other members of the team closed in to assist PO1 Espares who then marked all the seized items including the plastic sachet containing the substance subject of the sale. Appellant was brought to the police station wherein the confiscated items were surrendered to an investigator.

Appellant, for his part, presented the following version:[7]

At about 7:30 p.m. on June 16, 2003, while he was at home having dinner with his wife Josephine, daughter Jennifer and her husband, someone kicked open the door of their house. Four armed men in civilian clothes immediately entered, handcuffed and frisked him, and confiscated his wallet. On asking them what his offense was, he was simply told to explain at the police station. Jennifer, too, asked the armed men what the offense of appellant was, but she received no answer.

He was thereafter brought to the Pariancillo police precinct where a police officer showed him a plastic sachet and threatened that a case would be filed against him unless he paid P20,000. He failed to pay, however, hence, he was detained and subsequently charged.

Appellants wife Josephine and daughter Jennifer corroborated appellants tale on the circumstances surrounding his arrest.[8] Appellants neighbor Jose de Guzman, who also took the witness stand, stated that at about 7:45 p.m. on June 16, 2003, he saw appellant come out of his house handcuffed and escorted by four persons who all boarded an owner-type jeep.[9]

By Decision of January 18, 2006,[10] the trial court convicted appellant of illegal sale of shabu. As reflected earlier, appellant was exonerated of the charge of illegal possession of paraphernalia. Thus, the trial court disposed:

WHEREFORE, in view of the foregoing considerations, the prosecution having proven the guilt of the accused beyond reasonable doubt, this Court, acting as a Special Drug Court in the above-captioned case, hereby finds NICOLAS GUTIERREZ y LICUANAN, GUILTY as charged and is

hereby sentenced in Criminal Case No. 12514-D for Violation of Section 5, Republic Act No. 9165, to suffer LIFE IMPRISONMENT and to pay a fine of Five Hundred Thousand Pesos (Php 500,000.00)

In so far as Criminal Case No. 12515-D for Violation of Section 12, Republic Act No. 9165, considering that the prosecution failed to prove the guilt of the accused NICOLAS GUTIERREZ y LICUANAN of the said crime, the latter is hereby acquitted thereof. (Italics in the original; emphasis and underscoring supplied)

In convicting appellant of illegal sale of shabu, the trial court found that the prosecution sufficiently established the corpus delicti consisting of the buy-bust money paid to appellant and the shabu purchased from him. It added that appellants defense of frame-up was not supported by clear and convincing evidence.

On appeal, the Court of Appeals affirmed appellants conviction by Decision of April 30, 2007,[11] hence, the present appeal.

Appellant argues that he was a victim of an invalid warrantless search and arrest. He maintains that he was merely having dinner with his family when four unidentified armed men barged into their house. He cites an inconsistency in the testimonies of PO1 Espares and SPO3 Matias that he claims destroys their credibility, viz: PO1 Espares declared that the pre-arranged signal at the buy-bust operation was that he would light a cigarette, while SPO3 Matias stated that PO1 Espares was to flick the sachet containing shabu.[12]

The Solicitor General counters that since appellant was caught in flagrante in a buy-bust operation, the police officers were not only authorized but were also obligated to effect a warrantless arrest and seizure, adding that frame-up is a common and standard line of defense which appellant failed to support with clear and convincing evidence.[13]

The appeal is impressed with merit.

Under Section 5, Article II of R.A. No. 9165,[14] the elements necessary in a prosecution for the illegal sale of shabu are: the identity of the buyer and the seller; the object and the consideration; and the delivery of the thing sold and the payment therefor. What is material is proof that the transaction or sale transpired, coupled with the presentation in court of the corpus delicti the body or substance of the crime which establishes the fact that a crime has actually been committed.[15]

In prosecutions involving narcotics, the narcotic substance itself constitutes the corpus delicti of the offense and its existence is vital to sustain a judgment of conviction beyond reasonable doubt.[16] Proof beyond reasonable doubt demands that unwavering exactitude be observed in establishing the corpus delicti.[17] The chain of custody rule performs this function as it ensures that unnecessary doubts concerning the identity of the evidence are removed.[18]

Section 1 (b) of the Dangerous Drugs Board Regulation No. 1, Series of 2002[19] which implements R.A. No. 9165 defines chain of custody as follows:

b. Chain of Custody means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plants source of dangerous drugs or laboratory equipment at each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court and destruction. Such record of movements and custody of the seized item shall include the identity and signature of the person who held temporary custody of the seized item, the dates and times when such transfers of custody were made in the course of safekeeping and use in court as evidence, and the final disposition. (Emphasis and underscoring supplied)

In Malillin v. People,[20] the Court explained how it expects the chain of custody or movement of the seized evidence to be maintained:

As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same.

While testimony about a perfect chain is not always the standard because it is almost always impossible to obtain, an unbroken chain of custody becomes indispensable and essential when the item of real evidence is not distinctive and is not really identifiable, or when its condition at the time of testing or trial is critical, or when a witness has failed to observe its uniqueness. The same standard likewise obtains in case the evidence is susceptible to alteration, tampering, contamination and even substitution and exchange. In other words, the exhibit's level of susceptibility to fungibility, alteration or tampering without regard to whether the same is advertent or otherwise not dictates the level of strictness in the application of the chain of custody rule. (Underscoring supplied)

The Court finds that the evidence for the prosecution failed to establish the chain of custody of the allegedly seized shabu. That the defense stipulated on these matters, viz: that the specimen exists, that a request has been made by the arresting officers for examination thereof, that a forensic chemist examined it, and that it tested positive for methylamphetamine hydrochloride has no bearing on the question of chain of custody. These stipulations, which merely affirm the existence of the specimen, and the request for laboratory examination and the results thereof, were entered into during pre-trial only in order to dispense with the testimony of the forensic chemist and abbreviate the proceedings. That such is the intention of the parties is clear from the additional stipulations that the forensic chemist had no personal knowledge as to the source of the alleged specimen; and that the defense was reserving its right to object to the pieces of evidence marked by the prosecution.[21] Clearly, the stipulations do not cover the manner the specimen was handled before it came to the possession of the forensic chemist and after it left her possession.

To interpret the stipulations as an admission that appellant was the source of the specimen would be to bind him to an unceremonious withdrawal of his plea of not guilty a reading not supported by the records which creates a dangerous precedent.

The nagging question, therefore, remains whether the object evidence subjected to laboratory examination and presented in court is the same object allegedly seized from appellant.

While alleged poseur-buyer PO1 Espares testified on the marking and eventual turnover of the allegedly seized sachet of substance to the investigator, no explanation was given regarding its custody in the interim from the time it was turned over to the investigator to its turnover for laboratory examination. Such want of explanation bares a significant gap in the chain of custody of the allegedly seized item. Having merely substantially echoed the testimony of PO1 Espares, SPO3 Matias and PO1 Mapula did not fill in this gap.

And what happened to the allegedly seized shabu between the turnover by the chemist to the investigator and its presentation in court, the records do not show.

The Court made it clear in Malillin that the chain of custody rule requires that there be testimony about every link in the chain, from the moment the object seized was picked up to the time it is offered in evidence, in such a way that every person who touched it would describe how and from whom it was received, where it was and what happened to it while in the witness possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. The totality of the prosecution evidence does not meet this standard. It bears no account of the precautions taken to ensure that there was no change in the condition of the object and no opportunity for someone not in the chain to have possession thereof.

The Court reiterates that on account of the built-in danger of abuse that a buy-bust operation carries, it is governed by specific procedures on the seizure and custody of drugs,

separately from the general law procedures geared to ensure that the rights of persons under criminal investigation[22] and of the accused facing a criminal charge[23] are safeguarded. In People v. Tan,[24] the Court expressed this concern as it recognized that by the very nature of anti-narcotics operations, the need for entrapment procedures, the use of shady characters as informants, the ease with which sticks of marijuana or grams of heroin can be planted in the pockets or hands of unsuspecting provincial hicks, and the secrecy that inevitably shrouds all drug deals, the possibility of abuse is great. Thus, it exhorted courts to be extra vigilant in trying drug cases lest an innocent person is made to suffer the unusually severe penalties for drug offenses.

At this juncture, the Court notes another lapse of the members of the buy-bust team their failure to comply with the procedural requirements of Section 21, Paragraph 1 of Article II of R.A. No. 9165[25] with respect to custody and disposition of confiscated drugs. There was no physical inventory and photograph of the shabu allegedly confiscated from appellant. There was likewise no explanation offered for the non-observance of the rule. Coupled with the failure to prove that the integrity and evidentiary value of the items adduced were not tainted, the buy bust teams disregard of the requirements of Section 21 is fatal.

It needs no elucidation that the presumption of regularity in the performance of official duty must be seen in the context of an existing rule of law or statute authorizing the performance of an act or duty or prescribing a procedure in the performance thereof. The presumption, in other words, obtains only where nothing on record suggests that the law enforcers involved deviated from the standard conduct of official duty as provided for in the law. Otherwise, where the official act in question is irregular on its face, an adverse presumption arises as a matter of course.[26]

WHEREFORE, the assailed decision of the Court of Appeals is REVERSED and SET ASIDE. Appellant, Nicolas Gutierrez y Licuanan, is ACQUITTED of the crime charged for failure of the prosecution to prove his guilt beyond reasonable doubt.

Let a copy of this Decision be furnished the Director of the Bureau of Corrections, Muntinlupa City who is ORDERED to cause the immediate release of appellant unless he is being lawfully held for another cause, and to inform this Court of action taken within ten (10) days from notice hereof.

SO ORDERED. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 172019 February 12, 2007

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs.

BOISAN CABUGATAN y MACARAMBON, Accused-Appellant. DECISION CHICO-NAZARIO, J.: For Review is the Decision1 of the Court of Appeals dated 28 October 2005 in CA-G.R. CR-H.C. No. 00174 entitled, "People of the Philippines v. Boisan Cabugatan y Macarambon," affirming the Decision2 rendered by the Regional Trial Court of Baguio City, Branch 61, in Criminal Cases No. 20441-R and No. 20442-R, finding appellant guilty of illegal sale and of illegal possession of methamphetamine hydrochloride more popularly known as "shabu." On 9 August 2002, two Informations were filed against appellant before the Regional Trial Court of Baguio City for violations of Republic Act No. 9165 or the Comprehensive Dangerous Drugs Act of 2002. The offense involved in Criminal Case No. 20441-R for violation of Section 5, Article II, of Republic Act No. 91653 was allegedly committed as follows: That on or about the 8th day of August, 2002 in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused and without any authority of law, did then and there willfully, unlawfully and feloniously SELL, DISTRIBUTE and/or DELIVER a small transparent plastic heat sealed sachet containing white crystalline substance "Shabu" weighing 0.1 gram for ONE HUNDRED FIFTY PESOS (P150.00), Philippine Currency to PO3 Benedict Delong, a member of the Philippine National Police who acted as poseur-buyer, knowing fully well that said methamphetamine hydrochloride (SHABU), is a regulated [drug], in violation of the aforementioned provision of law.4 On the other hand, the Information relative to Criminal Case No. 20442-R for infringement of Section 11, Article II of the same law5 reads: That on or about 8th day of August, 2002 in the City of Baguio, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his/her possession and control one transparent plastic containing four (4) small transparent plastic sachet containing white crystalline substance "Shabu" weighing approximately 0.2 gm., marked as "RUA" "JF"; 0.2 gm marked "RUA" "JF"; 0.1 gm. Marked "RUA" "JF" and 0.1 gm marked "RUA" "JF", respectively; a regulated drug, without the corresponding license or prescription, in violation of the aforecited provision of law.6 During his arraignment on 21 August 2002, appellant pleaded not guilty to both charges.7 On 17 September 2002, the pre-trial of the cases was held at which time appellant admitted the existence of the following documents: 1. Certification of Preliminary test on the five sachets marked as Exh. A and B as to the findings of the positive result for methamphetamine hydrochloride. 2. Chemistry Report No. D-070-2002 3. Buy-bust money 4. Request for Drug Test 5. Booking Sheet and Arrest Report of the accused.8

During the trial of the cases, the prosecution presented the testimonies of PO2 Benedict Del-ong, PO2 Gilbert Bulalit, and PO3 Roy Aguirre who were all members of the Baguio City Police. The prosecutions version of the facts shows that on 8 August 2002, a reliable civilian informant, accompanied by a barangay kagawad, went to the Station 7 of the Baguio City Police. The informant purportedly advised Police Chief Inspector Eduardo Z. Garcia that a person by the name of Boisan was engaged in the illegal sale of shabu at Villacor Billiard Hall located on Otek St., Baguio City.9 Police Chief Inspector Garcia immediately formed a team to conduct a buy-bust operation to apprehend Boisan with PO2 Del-ong as the designated poseur-buyer.10 Police Chief Inspector Garcia gave PO2 Bulalit one piece of P100.00 bill and a P50.00 bill. PO2 Bulalit proceeded to have the bills photocopied and authenticated by the City Prosecutors Office.11 Later in the afternoon, the team proceeded to Villacor Billiard Hall. PO3 Aguirre and PO2 Bulalit positioned themselves inside a public utility jeepney parked near the entrance of the billiard hall. The other member of the team, PO1 Eugene Raymundo, stood about four to five meters away.>12 When they reached the designated place, they were met by a man wearing a black bull cap and a gray sweatshirt with collar. This person was identified during the trial to be appellant. After the civilian informant introduced PO2 Del-ong and appellant to each other, the latter asked PO2 Delong how much worth of shabu was he willing to purchase. PO2 Del-ong replied that he had only P150.00 with him. After he handed this sum to appellant, the latter drew from his right front pocket a small sachet which he gave to PO2 Del-ong. PO2 Del-ong then examined the content of the sealed plastic sachet. Certain that what appellant gave him was shabu, PO2 Del-ong scratched his head using his left hand to alert his fellow team members that the sale of shabu was already consummated. Thereupon, the rest of the buy-bust team rushed towards appellant and informed him that he was being arrested. They likewise advised him of his constitutional rights.13 PO3 Aguirre then frisked appellant and recovered from the latter four small transparent sachets containing crystalline substance. Appellant was thereafter taken to the police station where the buy-bust team prepared the arrest report, booking sheet, and their joint affidavit. They also made a request for the initial testing of the evidence they confiscated from appellant. The task of conducting the preliminary test was performed by PO2 Joseph Filog who issued a certification dated 8 August 2002, the pertinent portion of which states: The purpose of which is to determine the presence of regulated drug on the above specimen. That by using the "SIMONS REAGENT" to the white crystalline substance from the five (5) plastic heat sachets, gave POSITIVE result of "DARK BLUE COLOR" which indicates the presence of Methamphetamine Hydrochloride, an active component of Shabu, a regulated drug.14 The sachets of white crystalline substance were also examined by the Regional Crime Laboratory Office of the Philippine National Police. This test yielded the following results: FINDINGS: Qualitative examination conducted on the above-stated specimens (Exhs. "A", B-1 thru B-4) gave POSITIVE result to the test for the presence of Methamphetamine hydrochloride (SHABU), a regulated drug. x x x CONCLUSION:

Exhs. "A", B-1 thru B-4 contain Methamphetamine hydrochloride, a regulated drug. x x x.15 Appellant was likewise subjected to a drug test which allegedly showed that he was a shabu user.16 Expectedly, accused presented an entirely different version of what transpired during that afternoon and claimed that the buy-bust never took place.17 According to appellant, he is a Maranaw who earns a living by peddling sunglasses in Baguio City. At the time the supposed buybust operation took place, he was playing billiard with two others at the Villacor Billiard Hall when three men in civilian clothes arrived.18 Appellant identified two of the men who came inside the billiard hall to be PO2 Del-ong and PO3 Aguirre.19 The group of PO2 Del-ong allegedly frisked appellants fellow players and was able to recover a single plastic sachet from one of them. PO2 Del-ong, who was then standing beside appellant, held the latters hand, pointed a gun at his head, and warned him not to do anything or else he would be shot.20 PO3 Aguirre then called for a mobile car and appellant, together with his two companions, was brought to the Station 7 of the Baguio City Police.21 In the police station, appellant was handcuffed to the window rail. After a few hours, one of the arresting officers came to see him and asked appellant if he could settle his case by paying a sum of money to the police22 or he could just identify others who are engaged in drug trade in Baguio City.23 Appellant likewise claimed that he learned later on that the two others who were arrested with him were able to settle their cases and had been set free.24 As for the result of his drug test, appellant stated that he was a drug user while he was still residing in Mindanao and that he decided to move to Baguio City to evade the habit.25 The prosecution presented PO2 Del-ong as a rebuttal witness. He stated that while they were waiting for the mobile patrol car after the appellants arrest, a minor boy and a companion approached appellant and asked if he still had drugs to sell.26 The buy-bust team then decided to arrest the two would-be-buyers. As the drug test of the boy revealed that he was a drug user, he was referred to the Youth and Women Section of the Baguio City Police Office. They were, however, compelled to release his companion as his drug test established that he was not a drug user and because he claimed that he had just met the minor boy that afternoon.27 On 1 December 2003, the trial court rendered its decision sustaining the prosecution, thus: WHEREFORE, judgment is rendered finding the accused GUILTY as charged on both counts and he is hereby sentenced as follows: a) in Criminal Case No. 20441-R, to Life Imprisonment and to pay a fine of P1,000,000.00, and b) in Criminal Case No. 20442-R, to a prison term of twelve (12) years and one (1) day to fifteen (15) years, to pay a fine of P300,000.00, and the costs.28 Appellant seasonably filed a Notice of Appeal elevating the case to this Court.29 As the trial court meted a penalty of life imprisonment, the case was transferred to the Court of Appeals for appropriate action and disposition pursuant to our ruling in People v. Mateo.30 On 28 October 2005, the Court of Appeals rendered the now assailed decision affirming in toto the decision of the trial court.31 Appellant is again before us proclaiming his innocence.32 Appellant assigns the following errors: I

THE TRIAL COURT GRAVELY ERRED IN GIVING FULL FAITH AND CREDENCE TO THE TESTIMONIES OF THE PROSECUTION WITNESSES AND IN CONVICTING THE ACCUSED-APPELLANT FOR VIOLATION OF SECTIONS 5 AND 11, ARTICLE II OF REPUBLIC ACT NO. 9165. II THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE OFFENSES CHARGED.33 Appellant claims that the prosecution failed to establish his guilt beyond reasonable doubt. He faults the trial court for giving "full faith and credence to the [testimonies] of the prosecution witnesses"34 even when he had categorically denied the occurrence of any buy-bust operation. He also assails his arrest by the Baguio City Police as it was carried out without a valid warrant.35 As his arrest was illegal, it follows that the search conducted by the police upon his person was similarly unlawful.36 Appellants arguments fail to persuade. It is a fundamental rule that findings of the trial courts which are factual in nature and which involve the credibility of witnesses are accorded respect when no glaring errors, gross misapprehension of facts and speculative, arbitrary and unsupported conclusions can be gathered from such findings. The reason for this, being, that the trial court is in a better position to decide the credibility of witnesses having heard their testimonies and observed their deportment and manner of testifying during the trial.37 The rule finds an even more stringent application where said findings are sustained by the Court of Appeals as in this case.38 Considering, however, that at stake is no less than the liberty of appellant, we thoroughly examined the entire records of this case. Unfortunately for appellant, we failed to identify any error committed by the trial court both in its appreciation of the evidence presented before it and in the conclusion it reached. In the prosecution of offenses involving this provision of the statute, it is necessary that the following elements be established: (1) the identity of the buyer and seller, object, and consideration; and (2) the delivery of the thing sold and the payment therefore.39 What is material to the prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti.40 In this case, all the elements of the crime have been sufficiently established. The witnesses for the prosecution were able to prove that the buy-bust operation indeed took place and the shabu subject of the sale was brought and duly identified in court. The poseur-buyer (PO2 Del-ong) positively identified appellant as the one who sold to him a packet of white crystalline substance41 which was later confirmed by two chemical examinations to be shabu.42 As recalled by the PO2 Del-ong, the designated poseur-buyer, the events that led to the apprehension of appellant are as follows: Q When the male Civilian Informant went to your office and gave those informations, what happened next? A Acting on said information and with supervision of our Chief of office, Police Chief Inspector Garcia formed our team to conduct Narcotics buy-bust operation against the suspect, Sir. Q What was your role in that buy-bust operation? A Poseur-buyer to be introduced by the Civilian Informant to the suspect, Sir.

Q Did you use buy-bust money? A Yes, Sir. Q How much? A In the amount of P150.00, Sir. Q Did you have any xerox copy of that money authenticated prior to the buy-bust operation? A Yes, actually when we will conduct the buy-bust operation, our Chief of office handed to PO2 Bulalit one (1) piece of one hundred peso bill and one (1) piece of fifty peso bill to be photocopied and have it authenticated to the City Prosecutors Office, Sir. PROS. VERGARA: May we know from the defense if they admit this authenticated copy to be a true and faithful reproduction/copy of the original? ATTY MARAMAT: . Well just have to see the original, your Honor. xxxx Q Would you be able to identify the authenticated/xerox copy? A Yes, Sir. Q Considering that the (sic) you were the poseur-buyer and the P100.00 peso bill P50.00 bill were handed to you as buy-bust money, will you please tell the Honorable Court if this authenticated xerox copy represents the P100.00 peso bill and P50.00 peso bill that were used as buy-bust money? A Yes, Sir. PROS. VERGARA: May we pray that that document be marked as Exhibit "C," your Honor. COURT: Mark it, please. PROS. VERGARA: Q After the P150.00 was authenticated by Officer Bulalit, what happened next? A At about 2:00 p.m. of the same date I together with the Civilian Informant proceeded at Otek Street, Baguio City particularly at Villacor Billiard Hall while the rest of the group followed us secretly, Sir. Q About what time was the authentication made? A Between 1:30 to 2:00, Sir.

Q It was early afternoon of August 8, 2002 when your Civilian Informant came to your office? A Yes, Sir. Q And before 2:00 oclock the authentication was made? A Yes, Sir. Q At about 2:00 you proceeded to conduct the buy-bust operation? A Yes, Sir. xxxx Q You said that at about 2:00 p.m. of August 8, 2002 you proceeded to the Villacor Billiard Hall, where is that establishment located? A Otek St., Baguio City, Sir. Q Who were with you in proceeding to that place? A The Civilian Informant, Sir. Q Who else? A The rest of the group followed us secretly, Sir. Q Were you able to reach the place? A Yes, Sir. xxxx Q With that situation after you and the Civilian Informant arrived at the billiard hall, what happened next? A Upon arrival at the said place, a male person wearing a black bull cap and gray sweatshirt with collar approached us outside the said billiard hall, Sir. PROS. VERGARA: Q What happened after that person approached you and the Civilian Informant outside of the Villacor billiard hall? A The Civilian Informant introduced me to the suspect as an interested buyer of shabu, Sir. Q After you were introduced, what happened next? A The alleged suspect asked me how much will I buy, Sir. Q What was your response? A I told him that I have only P150.00 and handed to him immediately, Sir. Q After you handed to him the P150.00, what happened next?

A He got the P150.00 and put it inside of his left front pocket, Sir. Q After that what happened next? A And then he got something from his right front pocket a small sachet and handed it to me, Sir. Q After he handed that to you, what did you do? A I ascertained the content of it and I found out that the small plastic heat sealed sachet contains white crystalline substance, shabu, Sir. Q After you found out that the contents were suspected shabu, what happened next? A After the completion of the deal, I made the pre-arranged signal by scratching my head using my left hand, Sir. Q After you scratched your head, what happened next? A The back-up operatives rushed to our place and informed him of his constitutional rights and the violation, Sir.43 These pronouncements were corroborated on their material points by PO2 Bulalit and PO3 Aguirre whose respective testimonies were just as straightforward and candid as that of PO2 Delongs. For his part, appellant could not offer any viable defense except to claim that he was a victim of frame-up and extortion by the police officers. However, like alibi, we view the defense of frameup with disfavor as it can easily be concocted and is commonly used as a standard line of defense in most prosecutions arising from illegal sale of drugs.44 For the claim of frame-up to prosper, the defense must present clear and convincing evidence to overcome the presumption that the arresting policemen performed their duties in a regular and proper manner.45 Appellant failed to substantiate his claim that he was an unfortunate prey to a supposed ploy concocted by the police. By all indications, he did not know anyone of the members of the buybust team which apprehended him. There was, therefore, no motive for them to frame him up. Absent any proof of motive to falsely accuse him of such a grave offense, the presumption of regularity in the performance of official duty and the findings of the trial court with respect to the credibility of witnesses shall prevail over appellants bare allegation that he was framed-up.46 In other words, the categorical and convincing testimonies of the policemen, backed up by physical evidence, overcome the unsubstantiated claim of ill-motive by appellant. In this jurisdiction, the conduct of buy-bust operation is a common and accepted mode of apprehending those involved in illegal sale of prohibited or regulated drugs. It has been proven to be an effective way of unveiling the identities of drug dealers and of luring them out of obscurity. Thus, unless the defense could persuade us otherwise, we are inclined to confer full credit and faith to the testimonies of the members of the buy-bust team as regards the conduct of their operation.1awphi1.net Appellants claim that his warrantless arrest was invalid is similarly devoid of merit. The rule is settled that an arrest made after an entrapment does not require a warrant inasmuch as it is considered a valid warrantless arrest pursuant to Rule 113, Section 5(a) of the Rules of Court47 which states: SEC. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. As the legitimacy of the buy-bust operation is beyond question, the subsequent warrantless arrest as well as the warrantless search and seizure was permissible, thus: This interdiction against warrantless searches and seizures, however, is not absolute and such warrantless searches and seizures have long been deemed permissible by jurisprudence in instances of (1) search of moving vehicles, (2) seizure in plain view, (3) customs searches, (4) waiver or consented searches, (5) stop and frisk situations (Terry search), and search incidental to a lawful arrest. The last includes a valid warrantless arrest, for, while as a rule, an arrest is considered legitimate [if] effected with a valid warrant of arrest, the Rules of Court recognize permissible warrantless arrest, to wit: (1) arrest in flagrante delicto, (2) arrest effected in hot pursuit, and (3) arrest of escaped prisoners.48 (Emphasis supplied.) Having established the guilt of the appellant for the crimes charged, we shall now proceed to a determination of the appropriate penalties to be imposed upon him. The unauthorized sale of shabu carries with it the penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00).49 On the other hand, the unauthorized possession of less than five grams of said substance is penalized with a prison term of twelve (12) years and one (1) day to twenty (20) years and a fine of Three hundred thousand pesos (P300,000.00) up to Four hundred thousand pesos (P400,000.00).50 Section 98, Article XIII of Republic Act No. 9165 expressly provides for the limited application of the provisions of the Revised Penal Code on said law. This section reads: SEC. 98. Limited Applicability of the Revised Penal Code. Notwithstanding any law, rule or regulation to the contrary, the provisions of the Revised Penal Code (Act No. 3815), as amended, shall not apply to the provisions of this Act, except in the case of minor offenders. Where the offender is a minor, the penalty for acts punishable by life imprisonment to death provided herein shall be reclusion perpetua to death. Under the aforesaid section, the provisions of the Revised Penal Code shall no longer apply to the provisions of Republic Act No. 9165 except when the offender is a minor. Thus, Article 63(2) of the Revised Penal Code shall not be used in the determination of the penalty to be imposed on the accused. Since Section 98 of the said law contains the word "shall," the non-applicability of the Revised Penal Code provisions is mandatory, subject only to the exception in case the offender is a minor. With the advent of Republic Act No. 9165, the Courts, in determining the appropriate minimum and maximum of the penalty to be meted out to offenders, shall be guided solely by the pertinent part of the Indeterminate Sentence Law, to wit: SECTION 1. xxx; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same. In the imposition of the proper penalty, the courts, taking into account the circumstances attendant in the commission of the offense, are given discretion to impose either life imprisonment or death, and the fine as provided for by law. In light, however, of the effectivity of Republic Act No. 9346 entitled, "An Act Prohibiting the Imposition of Death Penalty in the Philippines," the imposition of the supreme penalty of death shall only be life imprisonment and fine. Hence, the penalty of life imprisonment imposed on appellant in Criminal Case No. 20441-R

is proper. We, however, find the fine of P1,000,000.00 to be excessive and hereby reduce the same to P500,000.00 considering that the records do not reveal any prior arrest or conviction of appellant for a drug-related offense. We likewise affirm the conviction and penalty of imprisonment of twelve (12) years and one (1) day to fifteen (15) years and the fine of P300,000.00 meted out by the trial court with respect to Criminal Case No. 20442-R. WHEREFORE, premises considered, the Decision dated 28 October 2005 of the Court of Appeals in CA-G.R. CR-H.C. No. 00174, affirming, in toto, the Decision of the Regional Trial Court of Baguio City, Branch 61 is hereby AFFIRMED with MODIFICATION in that the fine imposed on appellant in Criminal Case No. 20441-R is reduced to P500,000.00. No costs. SO ORDERED. RA 3019 Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. Nos. 147026-27 September 11, 2009

CAROLINA R. JAVIER, Petitioner, vs. THE FIRST DIVISION OF THE SANDIGANBAYAN and the PEOPLE OF THE PHILIPPINES, Respondents. DECISION DEL CASTILLO, J.: Before the Court is a petition for certiorari1 under Rule 65 of the Rules of Court filed by petitioner Carolina R. Javier in Criminal Case Nos. 25867 and 25898, entitled "People of the Philippines, Plaintiff versus Carolina R. Javier, Accused," seeking to nullify respondent Sandiganbayan's: (1) Order2 dated November 14, 2000 in Criminal Case No. 25867, which denied her Motion to Quash Information; (2) Resolution3 dated January 17, 2001 in Criminal Case No. 25898, which denied her Motion for Reconsideration and Motion to Quash Information; and (3) Order4 dated February 12, 2001, declaring that a motion for reconsideration in Criminal Case No. 25898 would be superfluous as the issues are fairly simple and straightforward. The factual antecedents follow. On June 7, 1995, Republic Act (R.A.) No. 8047,5 or otherwise known as the "Book Publishing Industry Development Act", was enacted into law. Foremost in its policy is the State's goal in promoting the continuing development of the book publishing industry, through the active participation of the private sector, to ensure an adequate supply of affordable, quality-produced books for the domestic and export market. To achieve this purpose, the law provided for the creation of the National Book Development Board (NBDB or the Governing Board, for brevity), which shall be under the administration and supervision of the Office of the President. The Governing Board shall be composed of eleven (11) members who shall be appointed by the President of the Philippines, five (5) of whom shall come from the government, while the remaining six (6) shall be chosen from the nominees of

organizations of private book publishers, printers, writers, book industry related activities, students and the private education sector. On February 26, 1996, petitioner was appointed to the Governing Board as a private sector representative for a term of one (1) year.6 During that time, she was also the President of the Book Suppliers Association of the Philippines (BSAP). She was on a hold-over capacity in the following year. On September 14, 1998, she was again appointed to the same position and for the same period of one (1) year.7 Part of her functions as a member of the Governing Board is to attend book fairs to establish linkages with international book publishing bodies. On September 29, 1997, she was issued by the Office of the President a travel authority to attend the Madrid International Book Fair in Spain on October 8-12, 1997.8 Based on her itinerary of travel,9 she was paid P139,199.0010 as her travelling expenses. Unfortunately, petitioner was not able to attend the scheduled international book fair. On February 16, 1998, Resident Auditor Rosario T. Martin advised petitioner to immediately return/refund her cash advance considering that her trip was canceled.11 Petitioner, however, failed to do so. On July 6, 1998, she was issued a Summary of Disallowances12 from which the balance for settlement amounted to P220,349.00. Despite said notice, no action was forthcoming from the petitioner. On September 23, 1999, Dr. Nellie R. Apolonio, then the Executive Director of the NBDB, filed with the Ombudsman a complaint against petitioner for malversation of public funds and properties. She averred that despite the cancellation of the foreign trip, petitioner failed to liquidate or return to the NBDB her cash advance within sixty (60) days from date of arrival, or in this case from the date of cancellation of the trip, in accordance with government accounting and auditing rules and regulations. Dr. Apolonio further charged petitioner with violation of Republic Act (R.A.) No. 671313 for failure to file her Statement of Assets and Liabilities. The Ombudsman found probable cause to indict petitioner for violation of Section 3(e) of R.A. No. 3019,14 as amended, and recommended the filing of the corresponding information.15 It, however, dismissed for insufficiency of evidence, the charge for violation of R.A. No. 6713. In an Information dated February 18, 2000, petitioner was charged with violation of Section 3(e) of R.A. No. 3019 before the Sandiganbayan, to wit: That on or about October 8, 1997, or for sometime prior or subsequent thereto, in the City of Quezon, Philippines and within the jurisdiction of this Honorable Court, the aforenamed accused, a public officer, being then a member of the governing Board of the National Book Development Board (NBDB), while in the performance of her official and administrative functions, and acting with evident bad faith or gross inexcusable negligence, did then and there willfully, unlawfully and criminally, without any justifiable cause, and despite due demand by the Resident Auditor and the Executive Director of NBDB, fail and refuse to return and/or liquidate her cash advances intended for official travel abroad which did not materialize, in the total amount of P139,199.00 as of September 23, 1999, as required under EO No. 248 and Sec. 5 of COA Circular No. 97-002 thereby causing damage and undue injury to the Government. CONTRARY TO LAW.16 The case was docketed as Criminal Case No. 25867 and raffled to the First Division. Meanwhile, the Commission on Audit charged petitioner with Malversation of Public Funds, as defined and penalized under Article 217 of the Revised Penal Code, for not liquidating the cash advance granted to her in connection with her supposed trip to Spain. During the conduct of the preliminary investigation, petitioner was required to submit her counter-affidavit but she failed to

do so. The Ombudsman found probable cause to indict petitioner for the crime charged and recommended the filing of the corresponding information against her. 17 Thus, an Information dated February 29, 2000 was filed before the Sandiganbayan, which was docketed as Criminal Case No. 25898, and raffled to the Third Division, the accusatory portion of which reads: That on or about and during the period from October 8, 1997 to February 16, 1999, or for sometime prior or subsequent thereto, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a high ranking officer, being a member of the Governing Board of the National Book Development Board and as such, is accountable for the public funds she received as cash advance in connection with her trip to Spain from October 812, 1997, per LBP Check No. 10188 in the amount of P139,199.00, which trip did not materialize, did then and there willfully, unlawfully and feloniously take, malverse, misappropriate, embezzle and convert to her own personal use and benefit the aforementioned amount of P139,199.00, Philippine currency, to the damage and prejudice of the government in the aforesaid amount. CONTRARY TO LAW.18 During her arraignment in Criminal Case No. 25867, petitioner pleaded not guilty. Thereafter, petitioner delivered to the First Division the money subject of the criminal cases, which amount was deposited in a special trust account during the pendency of the criminal cases. Meanwhile, the Third Division set a clarificatory hearing in Criminal Case No. 25898 on May 16, 2000 in order to determine jurisdictional issues. On June 3, 2000, petitioner filed with the same Division a Motion for Consolidation19 of Criminal Case No. 25898 with Criminal Case No. 25867, pending before the First Division. On July 6, 2000, the People filed an Urgent Ex-Parte Motion to Admit Amended Information20 in Criminal Case No. 25898, which was granted. Accordingly, the Amended Information dated June 28, 2000 reads as follows: That on or about and during the period from October 8, 1997 to February 16, 1999, or for sometime prior or subsequent thereto, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a high ranking officer, being a member of the Governing Board of the National Book Development Board equated to Board Member II with a salary grade 28 and as such, is accountable for the public funds she received as case advance in connection with her trip to Spain from October 8-12, 1997, per LBP Check No. 10188 in the amount of P139,199.00, which trip did not materialize, did then and there willfully, unlawfully and feloniously take, malverse, misappropriate, embezzle and convert to her own personal use and benefit the aforementioned amount of P139,199.00, Philippine currency, to the damage and prejudice of the government in the aforesaid amount. CONTRARY TO LAW.21 In its Resolution dated October 5, 2000, the Third Division ordered the consolidation of Criminal Case No. 25898 with Criminal Case No. 25867. 22 On October 10, 2000, petitioner filed a Motion to Quash Information,23 averring that the Sandiganbayan has no jurisdiction to hear Criminal Case No. 25867 as the information did not allege that she is a public official who is classified as Grade "27" or higher. Neither did the information charge her as a co-principal, accomplice or accessory to a public officer committing an offense under the Sandiganbayan's jurisdiction. She also averred that she is not a public officer or employee and that she belongs to the Governing Board only as a private sector representative under R.A. No. 8047, hence, she may not be charged under R.A. No. 3019 before the Sandiganbayan or under any statute which covers public officials. Moreover, she claimed that she does not perform public functions and is without any administrative or political power to

speak of that she is serving the private book publishing industry by advancing their interest as participant in the government's book development policy. In an Order24 dated November 14, 2000, the First Division25 denied the motion to quash with the following disquisition: The fact that the accused does not receive any compensation in terms of salaries and allowances, if that indeed be the case, is not the sole qualification for being in the government service or a public official. The National Book Development Board is a statutory government agency and the persons who participated therein even if they are from the private sector, are public officers to the extent that they are performing their duty therein as such. Insofar as the accusation is concerned herein, it would appear that monies were advanced to the accused in her capacity as Director of the National Book Development Board for purposes of official travel. While indeed under ordinary circumstances a member of the board remains a private individual, still when that individual is performing her functions as a member of the board or when that person receives benefits or when the person is supposed to travel abroad and is given government money to effect that travel, to that extent the private sector representative is a public official performing public functions; if only for that reason, and not even considering situation of her being in possession of public funds even as a private individual for which she would also covered by provisions of the Revised Penal Code, she is properly charged before this Court. On November 15, 2000, the First Division accepted the consolidation of the criminal cases against petitioner and scheduled her arraignment on November 17, 2000, for Criminal Case No. 25898. On said date, petitioner manifested that she is not prepared to accept the propriety of the accusation since it refers to the same subject matter as that covered in Criminal Case No. 25867 for which the Sandiganbayan gave her time to file a motion to quash. On November 22, 2000, petitioner filed a Motion to Quash the Information26 in Criminal Case No. 25898, by invoking her right against double jeopardy. However, her motion was denied in open court. She then filed a motion for reconsideration. On January 17, 2001, the Sandiganbayan issued a Resolution27 denying petitioners motion with the following disquisition: The accused is under the jurisdiction of this Court because Sec. 4 (g) of P.D. 1606 as amended so provides, thus: Sec. 4. Jurisdiction. The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: xxxx (g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations; xxxx The offense is office-related because the money for her travel abroad was given to her because of her Directorship in the National Book Development Board. Furthermore, there are also allegations to hold the accused liable under Article 222 of the Revised Penal Code which reads: Art. 222. Officers included in the preceding provisions. The provisions of this chapter shall apply to private individuals who, in any capacity whatever, have charge of any insular, provincial or

municipal funds, revenues, or property and to any administrator or depository of funds or property attached , seized or deposited by public authority, even if such property belongs to a private individual. Likewise, the Motion to Quash the Information in Criminal Case No. 25898 on the ground of litis pendencia is denied since in this instance, these two Informations speak of offenses under different statutes, i.e., R.A. No. 3019 and the Revised Penal Code, neither of which precludes prosecution of the other. Petitioner hinges the present petition on the ground that the Sandiganbayan has committed grave abuse of discretion amounting to lack of jurisdiction for not quashing the two informations charging her with violation of the Anti-Graft Law and the Revised Penal Code on malversation of public funds. She advanced the following arguments in support of her petition, to wit: first, she is not a public officer, and second, she was being charged under two (2) informations, which is in violation of her right against double jeopardy. A motion to quash an Information is the mode by which an accused assails the validity of a criminal complaint or Information filed against him for insufficiency on its face in point of law, or for defects which are apparent in the face of the Information.28 Well-established is the rule that when a motion to quash in a criminal case is denied, the remedy is not a petition for certiorari, but for petitioners to go to trial, without prejudice to reiterating the special defenses invoked in their motion to quash. Remedial measures as regards interlocutory orders, such as a motion to quash, are frowned upon and often dismissed. The evident reason for this rule is to avoid multiplicity of appeals in a single action.29 The above general rule, however admits of several exceptions, one of which is when the court, in denying the motion to dismiss or motion to quash, acts without or in excess of jurisdiction or with grave abuse of discretion, then certiorari or prohibition lies. The reason is that it would be unfair to require the defendant or accused to undergo the ordeal and expense of a trial if the court has no jurisdiction over the subject matter or offense, or is not the court of proper venue, or if the denial of the motion to dismiss or motion to quash is made with grave abuse of discretion or a whimsical and capricious exercise of judgment. In such cases, the ordinary remedy of appeal cannot be plain and adequate.30 To substantiate her claim, petitioner maintained that she is not a public officer and only a private sector representative, stressing that her only function among the eleven (11) basic purposes and objectives provided for in Section 4, R.A. No. 8047, is to obtain priority status for the book publishing industry. At the time of her appointment to the NDBD Board, she was the President of the BSAP, a book publishers association. As such, she could not be held liable for the crimes imputed against her, and in turn, she is outside the jurisdiction of the Sandiganbayan. The NBDB is the government agency mandated to develop and support the Philippine book publishing industry. It is a statutory government agency created by R.A. No. 8047, which was enacted into law to ensure the full development of the book publishing industry as well as for the creation of organization structures to implement the said policy. To achieve this end, the Governing Board of the NBDB was created to supervise the implementation. The Governing Board was vested with powers and functions, to wit: a) assume responsibility for carrying out and implementing the policies, purposes and objectives provided for in this Act; b) formulate plans and programs as well as operational policies and guidelines for undertaking activities relative to promoting book development, production and distribution as well as an incentive scheme for individual authors and writers;

c) formulate policies, guidelines and mechanisms to ensure that editors, compilers and especially authors are paid justly and promptly royalties due them for reproduction of their works in any form and number and for whatever purpose; d) conduct or contract research on the book publishing industry including monitoring, compiling and providing data and information of book production; e) provide a forum for interaction among private publishers, and, for the purpose, establish and maintain liaison will all the segments of the book publishing industry; f) ask the appropriate government authority to ensure effective implementation of the National Book Development Plan; g) promulgate rules and regulations for the implementation of this Act in consultation with other agencies concerned, except for Section 9 hereof on incentives for book development, which shall be the concern of appropriate agencies involved; h) approve, with the concurrence of the Department of Budget and Management (DBM), the annual and supplemental budgets submitted to it by the Executive director; i) own, lease, mortgage, encumber or otherwise real and personal property for the attainment of its purposes and objectives; j) enter into any obligation or contract essential to the proper administration of its affairs, the conduct of its operations or the accomplishment of its purposes and objectives; k) receive donations, grants, legacies, devices and similar acquisitions which shall form a trust fund of the Board to accomplish its development plans on book publishing; l) import books or raw materials used in book publishing which are exempt from all taxes, customs duties and other charges in behalf of persons and enterprises engaged in book publishing and its related activities duly registered with the board; m) promulgate rules and regulations governing the matter in which the general affairs of the Board are to be exercised and amend, repeal, and modify such rules and regulations whenever necessary; n) recommend to the President of the Philippines nominees for the positions of the Executive Officer and Deputy Executive Officer of the Board; o) adopt rules and procedures and fix the time and place for holding meetings: Provided, That at least one (1) regular meeting shall be held monthly; p) conduct studies, seminars, workshops, lectures, conferences, exhibits, and other related activities on book development such as indigenous authorship, intellectual property rights, use of alternative materials for printing, distribution and others; and q) exercise such other powers and perform such other duties as may be required by the law.31 A perusal of the above powers and functions leads us to conclude that they partake of the nature of public functions. A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer.32

Notwithstanding that petitioner came from the private sector to sit as a member of the NBDB, the law invested her with some portion of the sovereign functions of the government, so that the purpose of the government is achieved. In this case, the government aimed to enhance the book publishing industry as it has a significant role in the national development. Hence, the fact that she was appointed from the public sector and not from the other branches or agencies of the government does not take her position outside the meaning of a public office. She was appointed to the Governing Board in order to see to it that the purposes for which the law was enacted are achieved. The Governing Board acts collectively and carries out its mandate as one body. The purpose of the law for appointing members from the private sector is to ensure that they are also properly represented in the implementation of government objectives to cultivate the book publishing industry. Moreover, the Court is not unmindful of the definition of a public officer pursuant to the AntiGraft Law, which provides that a public officer includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the government.33 Thus, pursuant to the Anti-Graft Law, one is a public officer if one has been elected or appointed to a public office. Petitioner was appointed by the President to the Governing Board of the NDBD. Though her term is only for a year that does not make her private person exercising a public function. The fact that she is not receiving a monthly salary is also of no moment. Section 7, R.A. No. 8047 provides that members of the Governing Board shall receive per diem and such allowances as may be authorized for every meeting actually attended and subject to pertinent laws, rules and regulations. Also, under the Anti-Graft Law, the nature of one's appointment, and whether the compensation one receives from the government is only nominal, is immaterial because the person so elected or appointed is still considered a public officer. On the other hand, the Revised Penal Code defines a public officer as any person who, by direct provision of the law, popular election, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, or shall perform in said Government or in any of its branches public duties as an employee, agent, or subordinate official, of any rank or classes, shall be deemed to be a public officer.34 Where, as in this case, petitioner performs public functions in pursuance of the objectives of R.A. No. 8047, verily, she is a public officer who takes part in the performance of public functions in the government whether as an employee, agent, subordinate official, of any rank or classes. In fact, during her tenure, petitioner took part in the drafting and promulgation of several rules and regulations implementing R.A. No. 8047. She was supposed to represent the country in the canceled book fair in Spain. In fine, We hold that petitioner is a public officer. The next question for the Court to resolve is whether, as a public officer, petitioner is within the jurisdiction of the Sandiganbayan. Presently,35 the Sandiganbayan has jurisdiction over the following: Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: A. Violations of Republic Act No. 3019, as amended, other known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense:

(1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade "27" and higher, of the Compensation and Position Classification Act of 989 (Republic Act No. 6758), specifically including: xxxx (2) Members of Congress and officials thereof classified as Grade "Grade '27'" and up under the Compensation and Position Classification Act of 1989; (3) Members of the judiciary without prejudice to the provisions of the Constitution; (4) Chairmen and members of Constitutional Commission, without prejudice to the provisions of the Constitution; and (5) All other national and local officials classified as Grade "Grade '27'" and higher under the Compensation and Position Classification Act of 1989. xxxx Notably, the Director of Organization, Position Classification and Compensation Bureau, of the Department of Budget and management provided the following information regarding the compensation and position classification and/or rank equivalence of the member of the Governing Board of the NBDB, thus: Per FY 1999 Personal Services Itemization, the Governing Board of NDBD is composed of one (1) Chairman (ex-officio), one (1) Vice-Chairman (ex-officio), and nine (9) Members, four (4) of whom are ex-officio and the remaining five (5) members represent the private sector. The said five members of the Board do not receive any salary and as such their position are not classified and are not assigned any salary grade. For purposes however of determining the rank equivalence of said positions, notwithstanding that they do not have any salary grade assignment, the same may be equated to Board Member II, SG-28.36 Thus, based on the Amended Information in Criminal Case No. 25898, petitioner belongs to the employees classified as SG-28, included in the phrase "all other national and local officials classified as Grade 27' and higher under the Compensation and Position Classification Act of 1989." Anent the issue of double jeopardy, We can not likewise give in to the contentions advanced by petitioner. She argued that her right against double jeopardy was violated when the Sandiganbayan denied her motion to quash the two informations filed against her.1avvphi1 We believe otherwise. Records show that the Informations in Criminal Case Nos. 25867 and 25898 refer to offenses penalized by different statues, R.A. No. 3019 and RPC, respectively. It is elementary that for double jeopardy to attach, the case against the accused must have been dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon valid information sufficient in form and substance and the accused pleaded to the charge.37 In the instant case, petitioner pleaded not guilty to the Information for violation of the Anti-Graft Law. She was not yet arraigned in the criminal case for malversation of public funds because she had filed a motion to quash the latter information. Double jeopardy could not, therefore, attach considering that the two cases remain pending before the Sandiganbayan and that herein petitioner had pleaded to only one in the criminal cases against her. It is well settled that for a claim of double jeopardy to prosper, the following requisites must concur: (1) there is a complaint or information or other formal charge sufficient in form and

substance to sustain a conviction; (2) the same is filed before a court of competent jurisdiction; (3) there is a valid arraignment or plea to the charges; and (4) the accused is convicted or acquitted or the case is otherwise dismissed or terminated without his express consent.38 The third and fourth requisites are not present in the case at bar. In view of the foregoing, We hold that the present petition does not fall under the exceptions wherein the remedy of certiorari may be resorted to after the denial of one's motion to quash the information. And even assuming that petitioner may avail of such remedy, We still hold that the Sandiganbayan did not commit grave abuse of discretion amounting to lack of or in excess of jurisdiction. WHEREFORE, the Petition is DISMISSED. The questioned Resolutions and Order of the Sandiganbayan are AFFIRMED. Costs against petitioner. SO ORDERED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 161877 March 23, 2006

ARIEL C. SANTOS, Petitioner, vs. PEOPLE OF THE PHILIPPINES and the SANDIGANBAYAN, Respondents. DECISION GARCIA, J.: In this petition for review on certiorari, petitioner Ariel C. Santos assails and seeks the reversal of the July 31, 2003 decision1 of the Sandiganbayan (Third Division) in Criminal Case No. 21770, as reiterated in its January 28, 2004 resolution,2 denying petitioner's motion for reconsideration. The facts: In an Information3 filed with the Sandiganbayan, thereat docketed as Criminal Case No. 21770 and raffled to its Third Division, herein petitioner Ariel Santos y Cadiente, then the Labor Arbiter of the National Labor Relations Commission (NLRC), Regional Arbitration Branch No. III, San Fernando, Pampanga, was charged with violation of Section 3(e) of Republic Act (R.A.) No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, allegedly committed as follows: That on March 11, 1993 and June 15, 1993 respectively, in San Fernando, Pampanga, , the above-named accused, , being then the Labor Arbiter of the [NLRC], Regional Arbitration Branch No. III, San Fernando, Pampanga, while in the performance of his quasi-judicial functions, taking advantage of his position and committing the offense in relation to his office, did then and there willfully, unlawfully, criminally and through evident bad faith and manifest partiality towards Abraham Mose, complainant in NLRC-RAB Case No. RO3-198-79 captioned Abraham Mose vs. Plaza Hotel/Apartments, cause undue injury to Conrado L. Tiu, the owner of the Plaza Hotel/Apartments, in the following manner: accused despite the pendency of the motion for reconsideration of his Order dated October 21, 1992 directing the issuance of a writ of execution and the opposition to the motion for execution as well as the motion to quash writ of execution, issued first a writ of execution dated March 11, 1993 followed by an alias writ of execution dated

June 15, 1993, without acting on the said motions and opposition anymore, and as a consequence thereof, undue injury was caused to Conrado L. Tiu while giving unwarranted benefit and advantage to Abraham Mose. CONTRARY TO LAW. [Words in bracket added.] Arraigned on April 22, 1996,4 petitioner, as accused below, entered a plea of "Not Guilty." In the ensuing pre-trial conference, petitioner made the following admissions of fact duly embodied in the courts second pre-trial order5 dated April 13, 1999: 1. That at the time material to the case as alleged in the information, accused Ariel Santos was the Labor Arbiter of the NLRC-Branch III, San Fernando, Pampanga; 2. That the accused issued an Order dated October 21, 1992, directing the issuance of Writ of Execution against Conrado L. Tiu in NLRC-RAB Case No. RO3-198-79 .; 3. That Conrado L. Tiu , addressed to the accused, a motion for reconsideration of said Order directing the issuance of Writ of Execution; 4. That likewise, Conrado L. Tiu filed an opposition to Abraham Mose's motion for issuance of Writ of Execution in the above-entitled case; 5. That without resolving the Motion for Reconsideration , and despite the pendency of the same accused issued a Writ of Execution dated March 11, 1993, as well as an Alias Writ of Execution dated June 15, 1993 in said case. During trial, the prosecution adduced in evidence the testimony of its sole witness in the person of private complainant Conrado L. Tiu, owner of Plaza Hotel/Apartments, and the documents he identified and marked in the course of the proceedings. For its part, the defense, following the denial of its Demurrer to Evidence,6 called to the witness box petitioner himself and one Norma G. Reyes. As summarized in the decision under review, the parties respective versions of the relevant incidents follow: Facts as established by the prosecution On July 10, 1981, a Decision was rendered by Labor Arbiter Andres Palumbarit of the Ministry of Labor and Employment of Region 3, Arbitration Branch in RO3-AB Case No. 198-79 entitled Abraham M. Mose vs. Plaza Hotel/Apartments, owned by Conrado L. Tiu. In said Decision, Conrado L. Tiu was ordered to pay his former employee, Abraham Mose, backwages and other benefits from the time he was illegally dismissed up to the time of his reinstatement, without however indicating any particular amount. Pursuant to the above Labor Decision, NLRC Corporate Auditing Examiner Maria Lourdes L. Flores issued a Report of Examiner rendering the computation of Abraham Moses backwages and benefits for a period of three (3) years from July 1979 for a total amount of P16,360.50. . On September 2, 1981, the Plaza Hotel/Apartments filed a Memorandum of Appeal with the MOLE Region 3, seeking for the reversal/reconsideration of the above stated Labor Decision. This appeal was, however, dismissed per Resolution dated August 4, 1982. Plaza Hotel/Apartments raised their appeal to the Honorable Supreme Court which was docketed as G.R. No. 77105.

While the appeal was still pending before the Court, another Report of Examiner was rendered by Examiner Philip A. Manansala increasing the award from P16,360.50 to P63,537.76 which now covered backwages and benefits from July 1979 to May 1987. This sudden increase of judgment award prompted Plaza Hotel/ Apartments to file an objection to the Report of Examiner Philip Manansala, citing among others: a) Supreme Court rulings that the maximum backwages to be paid should only cover three (3) years from dismissal; . On March 15, 1989, the Supreme Court denied the appeal filed by Plaza Hotel/Apartments and with finality on August 3, 1989. On March 13, 1990, the NLRC Region 3 through Norma G. Reyes, made a recomputation of the judgment award in favor of Abraham Mose in accordance with the Supreme Court ruling covering a period of only three (3) years from the date of dismissal. This recomputed award amounted to P19,908.46 . After the above incidents, [the] accused took over the above Labor Case RO3-AB-Case No. 19879, . On October 21, 1992, [he] issued an Order of even date, which increased the judgment award from P19,908.46 to a skyrocketing P178,462.56 adopting and citing therein as basis a Report of Fiscal Examiner dated September 24, 1991, which was not even furnished to Plaza Hotel/Restaurants, Conrado L. Tiu or his counsel. This computation was contrary to the prevailing jurisprudence in Lepanto Consolidated Mining Co. vs. Encarnacion, where the monetary awards for illegally dismissed employees should only cover a three (3) year-period from the time of dismissal. The October 21, 1992 Order of [the] accused included the order for the issuance of Writ of Execution. Plaza Hotel/Apartments filed a Motion for Reconsideration dated November 5, 1992 seeking the reconsideration of the above Order of accused . Cited as grounds for reconsideration, inter alia, are: a) the order assailed [is] contrary to the prevailing jurisprudence laid in Lepanto Consolidated Mining ; b) Conrado L. Tiu cannot possibly reinstate Abraham Mose to his former position as waiter in the Plaza Hotel because it has already closed business as early as January 21, 1987 . During the pendency of the Plaza Hotels Motion for Reconsideration, Abraham Mose through counsel filed an Ex-Parte Motion for Execution of the Order dated October 21, 1992. This was opposed by Plaza Hotel/Apartments . Without however acting on the Plaza Hotel/Apartments Motion for Reconsideration dated November 5, 1992 and the Opposition to Motion for Execution dated February 6, 1993, [the] accused issued a Writ of Execution dated March 11, 1993 to implement his Order of October 21, 1992 to collect the amount of P178,462.56 . Reacting to this action of [the] accused , Plaza Hotel/Apartments filed on May 25, 1993 a Motion to Quash Writ of Execution and to Resolve Motion for Reconsideration. [The] accused however ignored all the abovesaid Motions and pleadings filed by Plaza Hotel/Apartments. Conrado L. Tiu, was then compelled to file a Petition for Injunction before the Department of Labor and Employment with a prayer for [a] Temporary Restraining Order [TRO]. The NLRC in its Resolution of June 9, 1993 issued the (TRO) enjoining the accused from enforcing his Writ of Execution dated March 11, 1993. In order to implement the TRO, the NLRC imposed as a condition the posting by Conrado L. Tiu of a cash or surety bond equivalent to the judgment award of P178,462.56 [which Tiu complied] as shown by his payment of premium amounting to P11,885.50.

Despite the [TRO], [the] accused issued an "Alias Writ of Execution" dated June 15, 1993 reiterating the enforcement of his previous Writ of Execution. However, this was not enforced due to the [TRO] presented by Conrado L. Tiu to the NLRC Sheriffs . On February 8, 1994, the NLRC, issued a decision to limit the computation of judgment award in favor of Abraham Mose to only three (3) years from July 4, 1979 to July 4, 1982 without qualification or deduction according to the prevailing jurisprudence laid down by the Supreme Court.7 (Words in bracket added). Facts as established by the defense Accused Ariel Santos admitted that he had issued a Writ of Execution on the Decision dated July 10, 1981 of the Labor Arbiter Andres Palumbarit . The award, however, was increased from P19,908.46 to P178,462.56 . The said writ of execution was issued on March 11, 1993. A Motion for Reconsideration dated February 6, 1993 was subsequently filed by the Plaza Hotel/Apartments on the Order dated October 21, 1992, but [the] accused deemed not to resolve the same because he felt there is no necessity to resolve it, since the decision of Labor Arbiter Palumbarit has become final and executory, hence, ministerial for his part to implement and enforce the same. On February 28, 1994, a Decision of the NLRC was issued stating that the backwages should be limited only to three (3) years in consonance with the ruling in the Lepanto Mining Company case. He further testified that, he did not know anymore nor aware what happened to the case since, as of August, 1993, he was assigned at the NLRCNCR, and much as he wanted to rectify the error, he can no longer do so . Prior to the issuance of the abovesaid decision, a [TRO]was issued by the DOLENLRC for the enjoinment of the implementation of the writ of execution dated March 11, 1993, however, [the] accused issued an alias writ of execution. The Sheriff assigned did not implement the said writs. Norma Reyes initially made a computation for the back wages of Abraham Mose in the amount P19,908.46 . However, she made a recomputation based on the Order of [the accused] dated October 21, 1992 and increased the P19,908.46 back wages to P178,462.56 . She was not informed by [the] accused that it is physically impossible for Mose to be reinstated .8 (Words in bracket added) In the same decision, the Sandiganbayan (Third Division) adjudged petitioner guilty as charged and, accordingly, sentenced him, thus: WHEREFORE, the Court finds accused ARIEL SANTOS y CADIENTE GUILTY beyond reasonable doubt of violation of Section 3 (e) of Republic Act No. 3019, otherwise known as "The Anti-Graft and Corrupt Practices Act", and sentences said accused to EIGHT (8) YEARS and ONE (1) DAY, as minimum, to TEN (10) YEARS, as maximum, and perpetual disqualification from holding public office. Ariel Santos is also ordered to pay Plaza Hotel/Apartments, through Conrado L. Tiu, the following sums as his civil liability: 1. P68,000 for the attorney's fees paid by Conrado L. Tiu because of filing of this case; and 2. P11,800 for the supersedeas bond paid by Conrado L. Tiu in connection with the restraining order issued by the DOLE-NLRC. SO ORDERED.9

His motion for reconsideration having been denied by the same court in its equally assailed Resolution of January 28, 2004,10 petitioner is now with this Court via the present recourse imputing on the respondent court the following errors: I. IN HOLDING THAT PETITIONER WAS GUILTY OF MANIFEST PARTIALITY IN ISSUING THE WRITS OF EXECUTION SUBJECT OF THE INFORMATION. ll. IN HOLDING THAT THE PRIVATE COMPLAINANT SUFFERED UNDUE INJURY SINCE, AS SHOWN ABOVE, THE JUDGMENT FOR WHICH HE WAS HELD LIABLE TO PAY BACKWAGES, WHETHER FOR THAT LIMITED PERIOD OF THREE (3) YEARS OR CONTINUING BACKWAGES UNTIL ACTUAL REINSTATEMENT HAS NEVER BEEN SATISFIED. The petition is not impressed with merit. Section 3(e) of R.A. No. 3019, as amended, under which petitioner was indicted and convicted, reads: SEC. 3. Corrupt practices of public officers. - In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: xxx xxx xxx (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. In Jacinto vs. Sandiganbayan,11 the Court en banc enumerated the essential elements of the crime punishable under the aforequoted statutory provision, to wit: 1. The accused must be a public officer discharging administrative, judicial or official functions; 2. He must have acted with manifest partiality, evident bad faith or inexcusable negligence; and 3. That his action caused any undue injury to any party, including the government, or giving any private party unwarranted benefits, advantage or preference in the discharge of his functions. As may be noted, what contextually is punishable is the act of causing any undue injury to any party, or the giving to any private party of unwarranted benefits, advantage or preference in the discharge of the public officers functions. In Uy vs. Sandiganbayan,12 and again in Santiago vs. Garchitorena,13 the Court has made it abundantly clear that the use of the disjunctive word "or" connotes that either act of (a) "causing any undue injury to any party, including the Government"; and (b) "giving any private party any unwarranted benefits, advantage or preference," qualifies as a violation of Section 3(e) of R.A. No. 3019, as amended. This is not to say, however, that each mode constitutes a distinct offense but that an accused may be proceeded against under either or both modes. Anent the first error, petitioner submits that the Sandiganbayan overlooked the fact that, when he issued, on June 15, 1993, the Alias Writ of Execution, reiterating the enforcement of the previous Writ of Execution dated March 11, 1993, he had no knowledge of the issuance on June 9, 1993 by the NLRC of a temporary restraining order (TRO). Prescinding therefrom, petitioner would now insist that, having been apprised of the TRO only on June 29, 1993, the day the NLRC's Central Docket Section released the same, he could not be criminally liable for acting with manifest partiality in issuing the alias writ of execution on June 15, 1993.

The Court is not persuaded. Petitioners posture of not having known at some material point in time the issuance of the TRO in question strikes the Court as mere afterthought. If it were really true that he had no knowledge of the TRO issuance before he issued the June 15, 1993 alias writ of execution, he should have at least stated so in his defense before the court below or marked, as evidence, the TRO evidencing that it was released from the NLRC's docket section only on June 29, 1993. The materiality and significant weight of this defense could not have eluded petitioner, himself a lawyer, and his counsel, if indeed he had no knowledge that a TRO had already been issued. Not lost on the Court is the fact that petitioner did not even raise said issue in his Demurrer to Evidence before the respondent court, as well as in his motion for reconsideration of its decision. The settled rule is that no question will be entertained on appeal unless it had been raised in the court below. Points of law, theories, issues and arguments not adequately brought to the attention of the lower court need not be, and ordinarily will not be, considered by a reviewing court as they cannot be raised for the first time on appeal. Springing surprises on the opposing party is offensive to the sporting idea of fair play, justice and due process; hence the proscription against raising a new issue for the first time on appeal.14 In any case, the Court agrees with the findings and disquisitions of the Sandiganbayan that petitioner exhibited manifest partiality towards Abraham Mose in issuing the two Writs of Execution: As a Labor Arbiter, and a lawyer at that, it is incumbent upon him to exercise prudence and probity in the exercise of his functions. He knew that there was a pending Motion for Reconsideration filed by Plaza Hotel/Apartments contesting his order dated October 21, 1992 ordering, in haste, the issuance of the writ of execution and regarding the hulking increase of the amount of backwages to be paid to Abraham Mose from P19,908.46 to P178,462.56, and despite the pendency of the said Motion, he issued the corresponding writ of execution. His reason that there is no longer a necessity to resolve the motion for reconsideration because the Decision of Labor Arbiter Palumbarit has become final and executory is untenable and a very negligible statement. The issue raised in the motion for reconsideration is not the Decision of Labor Arbiter Palumbarit, but accused's Order dated October 21, 1992, and thus, incumbent upon him to resolve first the pending motion for reconsideration before pursuing with the implementation of the said Order and instead of issuing the writ of execution. Furthermore, accused again issued an alias writ of execution, this time, despite issuance of a temporary restraining order by the DOLENLRC. By these acts of accused Ariel Santos, it is clearly evident that he had exercised manifest partiality or bias on Abraham Mose in impetuously issuing the two writs of execution, thus, causing damage and injury, which are not merely negligible to Plaza Hotel/Apartments.15 Petitioner also maintains that Plaza Hotel did not suffer damage or injury consequent to his having issued the two writs of execution, arguing that neither was ever enforced. Pressing the point, he also states that what Plaza Hotel paid by way of attorney's fees and premium for the supersedeas bond it posted to enjoin the enforcement of the alias writ of execution is not the damage or injury contemplated under Section 3(e) of R.A. No. 3019. The contention is untenable. The term "undue injury" in the context of Section 3 (e) of the Anti-Graft and Corrupt Practices Act punishing the act of "causing undue injury to any party," has a meaning akin to that civil law concept of "actual damage." The Court said so in Llorente vs. Sandiganbayan,16 thus: In jurisprudence, "undue injury" is consistently interpreted as "actual damage." Undue has been defined as "more than necessary, not proper, [or] illegal;" and injury as "any wrong or damage done to another, either in his person, rights, reputation or property [; that is, the] invasion of any

legally protected interest of another." Actual damage, in the context of these definitions, is akin to that in civil law. In turn, actual or compensatory damages is defined by Article 2199 of the Civil Code as follows: "Art. 2199. Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages." Fundamental in the law on damages is that one injured by a breach of a contract, or by a wrongful or negligent act or omission shall have a fair and just compensation commensurate to the loss sustained as a consequence of the defendants act. Actual pecuniary compensation is awarded as a general rule, . Actual damages are primarily intended to simply make good or replace the loss caused by the wrong. Petitioner admitted issuing the two writs of execution without first resolving Plaza Hotel's motion for reconsideration of his October 21, 1992 Order. He argued, however, that it was his ministerial duty to issue the writs aforementioned, the finality of the decision sought to be enforced, i.e., the decision of Labor Arbiter Palumbarit, having set in upon the dismissal, with finality, by this Court of Plaza Hotels petition for certiorari in G.R. No. 77105 assailing said decision. Petitioner is obviously trying to mislead. As may be recalled, petitioner took over Labor Case RO3-AB Case No. 198-79 after this Court, in G.R. No. 77105, dismissed with finality Plaza Hotel/Apartments appeal from the decision of Labor Arbiter Andres Palumbarit which, to stress, decreed payment to Mose of backwages from the date of his illegal dismissal to his reinstatement, without, however, indicating a specific amount. In the span between the issuance of the Palumbarit decision and this Courts final dismissal action aforementioned, two NLRC auditing examiners came out with (2) different computations of the judgment award. Thereafter, but before accused issued, on October 21, 1992, an order fixing the judgment award at P178,462.56 and directing the issuance of the covering writ of execution, examiner Norma Reyes, following jurisprudence, made a recomputation and came up with the figure P19,908.46 to cover the threshold three years backwages. The increase of the award for Mose from P19,908.46 to P178,462.56 appeared contrary to prevailing jurisprudence that such award should cover only a 3-year period from the time of the employee's dismissal.17 The perceived illegality of the said Order of October 21, 1992 is what impelled Plaza Hotel to move for a reconsideration, raising inter alia the following issues for petitioner to consider in assessing the former's liability: (a) the ruling in Lepanto Consolidated Mining vs. Encarnacion18 on the amount recoverable in illegal dismissal cases is still the prevailing doctrine; (b) as early as July 1990, the employer already expressed willingness to pay Mose the sum of P19,908.46; and (c) Plaza Hotel was not furnished of the new computation assessing it the amount of P178,462.56. From the foregoing narration of events, it is fairly clear that Plaza Hotels motion for reconsideration immediately referred to above was directed against petitioners order of October 21, 1992 directing the issuance of a writ of execution for the amount stated therein. Be this as it may, petitioners pose respecting his ministerial duty to order the execution of a final and executory decision of Andres Palumbarit is as simplistic as it is misleading. As it were, petitioner failed to resolve said motion for reconsideration and instead issued on March 11, 1993 a writ of execution. Worse still, he proceeded to issue an alias writ of execution despite the issuance by the NLRC Proper of a TRO enjoining the implementation of the underlying writ. Under the circumstances, Plaza Hotel was within its right to secure the services of counsel for a fee of P68,500.00 - and, to apply for injunctive relief and then pay P11,800.00 for the supersedeas bond to stay the implementation of the writ of execution in question. In net effect, Plaza Hotel incurred damages rendered necessary by the illegal or improper acts of petitioner.

All told, the Court rules and so holds, as did the respondent Sandiganbayan, that the elements of the offense charged had been duly established beyond reasonable doubt. Petitioner, being a labor arbiter of the NLRC, discharges quasi-judicial functions. His act of issuing the two writs of execution without first resolving the pending motion for reconsideration of his October 21, 1992 Order, and despite the existence of a TRO was clearly tainted with or attended by evident partiality causing undue injury to private complainant Conrado L. Tiu. The penalty for violation of Section 3(e) of R.A. No. 3019 is imprisonment for not less than six years and one month nor more than fifteen years, perpetual disqualification from public office, and other accessory penalties. Under the Indeterminate Sentence Law, if the offense is punished by special law, as here, the court shall impose on the accused an indeterminate penalty the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum prescribed by the same. Hence, the respondent court correctly imposed on petitioner an indeterminate prison term of eight (8) years and one (1) day, as minimum, to ten (10) years, as maximum, with perpetual disqualification from public office. WHEREFORE, finding no reversible error on the decision under review, the same is hereby AFFIRMED in toto and this petition is DENIED for lack of merit. Costs against petitioner. SO ORDERED. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 167048 April 7, 2006

MARIETTA T. CAUGMA, AMIANA ABELLA and ROSAURO MARTINEZ, Petitioners, vs. THE PEOPLE OF THE PHILIPPINES and the SANDIGANBAYAN, Respondents. DECISION CALLEJO, SR., J.: Before us is a Petition for Review on Certiorari of the Decision1 of the Sandiganbayan in Criminal Case No. 17001 convicting the four accused therein of violating Section 3(e) of Republic Act No. 3019, as well as its Resolution2 denying the motion for reconsideration thereof. Under Executive Order (E.O.) No. 888 dated March 18, 1983, ministers and heads of government agencies were authorized to dispose of their unserviceable equipment and disposable property through the creation of a Disposal Committee (Committee) composed of a representative of the owning ministry or agency as chairperson, and, as members, representatives of the Bureau of Supply Coordination and the Commission on Audit (COA). The committee had the following functions: (1) Inspect or authorize the field officer to inspect the unserviceable equipment and property to verify justification for disposal; (2) Set the final appraised value of all disposable property considering obsolescence, market demand, physical condition and result of previous biddings for similar property;

(3) Recommend to the Minister or Head of Ministry/Agency for approval the manner of disposal taking into consideration the pertinent provisions of the Revised Administrative Code and the National Auditing Code; (4) Conduct public biddings for the sale or disposable property on an "AS IS," "WHERE IS" basis and to recommend the corresponding award; (5) The representatives of the Commission on Audit and the Bureau of Supply Coordination together with the COA Technical Staff specifically assigned to the Disposal Committee, shall be clothed with full authority to make final decisions in behalf of their respective offices in the various committee deliberations; (6) In the case of agencies attached to certain Ministries, recommendations of the Disposal Committee is subject to the final approval of the Minister concerned.3 E.O. No. 888 also provided that the unserviceable equipment may be disposed of by sale through public bidding and that their appraised value (as determined by the Committee) shall be the minimum selling price. Should the sale through public bidding be unsuccessful, the Committee was authorized to dispose of the property in any manner deemed advantageous to the government, including through barter or negotiated sale at no less than the Committees appraised value. Pursuant to E.O. No. 888, the Bureau of Fisheries and Aquatic Resources (BFAR) created its own committee under Office Order No. 65 dated May 8, 1983. Among the committee members were Marietta T. Caugma, Chief of the Finance Division as chairperson; Amiana M. Abella, vicechairperson; Rosauro M. Martinez, BFAR Representative as member; Villa J. Bernaldo, COA Auditor/Representative as member; and Meynardo Geralde, Jr., Supply Coordination Office representative, as member. Way back in December 1959, the BFAR had acquired eight vessels from Japan under the RP-Japan Reparation Commission Agreement, among them the "M/V Malasugui." In 1974 to 1980, the deteriorating vessel was dry-docked for extensive repairs, and thereafter was no longer utilized for test fishing activities.4 Thus, in a Comment Slip5 dated April 18, 1984, Arsenio S. De Jesus, Chief of the Technological Services Division, informed BFAR Director Felix R. Gonzales that it was time to "condemn the vessel due to old age (27 years)." On July 18, 1984, the vessel sustained leaks on her forward hull while docked at Pier 4, Fishing Port, Navotas, Metro Manila, flooding the engine room, fish holder and gear locker rooms. The BFAR engaged the services of V/L Shipyard Corporation (Corporation) to tow the vessel from the Navotas pier. The Corporation billed the BFAR for berthing fees at P110.90 a day from September 11, 1984 to December 31, 1984 in the total amount of P12,420.00,6 and for security services, tonnage, electrical power for water supply, gasoline and other vessel services in the amount of P21,037.00, or the total amount of P33,457.80 via Bill No. 15297 dated January 3, 1985. Gonzales approved the claim and Caugma certified the availability of funds for the disbursement via Disbursement Voucher8 dated January 28, 1985, subject to release of funds from the Ministry of Budget and Management. In a Memorandum9 dated July 20, 1984, Officer-in-Charge Eriberto A. Macatangay of the Fishing Boat Operations Section recommended to the Bureau Director that the vessel should be disposed of considering that it could no longer serve its purpose due to "old age and deteriorating superstructure." In a Memorandum10 dated November 13, 1984, the captain of the vessel also

recommended that the vessel be disposed/condemned to save funds which would have to be spent for repair and berthing fees. An Inventory and Inspection Report of Unserviceable Property11 was prepared, declaring that the vessel was obsolete, "junk or scrap," and that to maintain it was no longer economical. The report was signed by the Bureau Director, a COA representative and Arsenio S. De Jesus, Chief, Technological Services Division. The report was transmitted to the Director of the Supply Coordination Office of the General Services Administration (GSA) for appropriate action.12 In a Memorandum13 dated April 29, 1985 signed by De Jesus, COA representative Jaoquin C. Lim and Supply Coordination Office representative Meynardo L. Garalde, Jr. it was reported to the GSA that the fishing vessel was obsolete, unserviceable and beyond economical repair, and that spare parts were no longer available. The appraised value of the vessel was declared at P86,917.60. It was recommended that the vessel be sold through public bidding for not lower than P86,000.00; that in addition, the awardee/buyer shall pay all the charges in connection with the sale of the property; and that the vessel be disposed immediately to avoid further depreciation in value, "considering that it [was] berthed/docked in a private firm." Meanwhile, on November 8, 1985, the Corporation billed the BFAR for berthing fees at P110.90 a day from January 1, 1985 to October 31, 1985 totaling P33,457.80; and for security services, electrical power, shifting of vessel with the use of a tugboat, fresh water supply and gasoline, and other services amounting to P25,940.00. The total charges amounted to P69,653.60.14 On November 11, 1985, the Disposal Committee submitted its Report15 on the appraisal of the vessel, recommending that it be sold at public auction at the appraised value of P86,917.60, including the charges of the sale. The Committee also prepared the Procedural Guidelines16 to be followed relative to the sale. These were transmitted to Bureau Director Gonzales on November 11, 1985.17 On November 12, 1985, Gonzales issued an Invitation to Bid18 which also contained the conditions of the sale of the vessel. He revised the proposed procedural guidelines of the Committee (Condition No. 8 of the Invitation to Bid) to provide that the "bidder agrees to pay, in addition to the award price, taxes, duties and other costs such as berthing fees, cost of publication of the bid, etc. and levies which may be imposed by law."19 Prospective bidders were required to submit their sealed bids not later than 10:00 a.m. on November 21, 1985, at which time the bids would be opened publicly as required by Presidential Decree (P.D.) No. 1445. The bid offer was also required to be accompanied by cash or managers check in an amount equivalent to 10% percent of the offer to guarantee the bid, and compliance with the terms and conditions of the sale, and later converted as downpayment in case of a winning bidder. Bids which did not meet the full consideration or requirements of the BFAR would be considered defective, and only those deemed advantageous to the government would be accepted. The sale of the vessel would be awarded to the highest bidder who would pay the bid price within 10 days from notice of the award. The invitation to bid was published in the Times Journal for three consecutive days from November 14 to 15, 1985.20 The publisher billed the BFAR P2,400.00 as publication fee on November 16, 1985.21 lawphil.net The public bidding was held on November 21, 1985.22 There were four bidders but only two participated: Dr. Enrique Peras, Jr. for the All Point Trading and General Services Corporation, and Eddie S. Galler, Jr., General Manager of the Corporation. Galler, Jr. submitted the bid, as well as copies of Invoice Nos. 1529 and 1589 showing that the Corporation had billed the Bureau the total amount of P103,111.40 for various services rendered on the vessel. Dr. Peras, Jr. inquired what were included as "berthing fees" under Condition No. 8 in the invitation to bid, and Caugma replied that the fees included those due after the publication of the invitation to bid up to the final award of the sale of the vessel.23 Galler, Jr. asked if the P103,111.40 under Bill Nos. 1529 and 1589 issued by the Corporation would be included in the bid price, and Caugma replied that

the Committee would study the matter.24 At that time, the Committee had no knowledge of the berthing fees and other charges incurred from November 1, 1985 up to the final award.25 The Committee, however, agreed that the bid for the vessel should be stated separately from berthing and publication fees which should be broken down.26 Galler, Jr. withdrew the bid of the Corporation. The Committee resolved to reset the opening of the bids at 10:00 a.m. of November 28, 1985. Upon the suggestion of Bernaldo, the notice of public bidding was posted in public places.27 On November 28, 1985, the Committee met for the re-scheduled public bidding. Bernaldo was substituted by Marlene Nacua of the COA. There were five registered bidders but only two appeared. The Corporation submitted its sealed bid P13,890.00 or 10% of its bid price as required by the invitation to bid. The other registered bidders left without submitting any bid. Caugma asked the committee members if the lone bid of the Corporation could already be opened and they all agreed. Nacua did not interpose any objection because she believed in good faith that it was in accordance with COA rules and regulations. Caugma opened the bid and receipted the P13,890.00 representing 10% of the bid price of P138,900.00, broken down as follows: a) PUBLICATION FEE P 2,400.00 b) BERTHING FEE 103,111.40 c) BFAR 33,388.60 Total P138,900.0028 Believing that the bid price for the vessel was P138,900.00 and that this amount surpassed the appraised value of P86,917.60, the Committee members resolved to recommend to the Bureau Director that the sale of the vessel be awarded to the Corporation for final approval. The Committee transmitted its recommendation to the Bureau Director, including the minutes of the meeting. Upon the suggestion of Amiana Abella, the Committee sent a letter to the corporation confirming that its bill for costs and berthing fees would be the last it would receive.29 Meanwhile, Gonzales approved Disbursement Voucher No. 101-85-12-19-904230 dated December 5, 1985 amounting to P69,653.60 in favor the Corporation. Caugma certified that the amount was available for thepurpose, but payment was held in abeyance pending the release of the final award to be made by the Ministry of Budget and Management. On December 23, 1985, Gonzales transmitted a letter31 to the Minister of Agriculture and Food requesting for authority to award the sale of the "M/V Malasugui" to the Corporation. He stated that of the five registered bidders, only the Corporation had submitted its bid of P138,900.00, which included the cost of publication, berthing fees, and the appraised value of the vessel. He appended to the letter the lone Minutes of the Public Bidding held on November 28, 1985 as well as the submitted bid. The Assistant Minister, Aurora B. Marcos, referred the matter to the Resident Auditor for study and recommendation.32 Then Ministry Auditor Reynaldo Ventura informed the Minister that he had no objection to award to the Corporation the sale of the fishing vessel, considering that the bid it submitted was higher than the appraised value.33 He required, however, that the proposed sale be given wide publication, and that the proceeds of the sale be accounted for as income and be remitted to the National Treasury. In light of this favorable report, the Minister of Agriculture and Food, through Assistant Minister Marcos, authorized the Bureau Director to award and sell the vessel to the Corporation for P138,900.00, pursuant to Section 79 of P.D. No. 1445, and Section 3, paragraph 3 of E.O. No. 888.34 Meanwhile, on January 6, 1986, the BFAR remitted to the Corporation the amount of P69,653.60 in payment of Bill No. 1589. Galler, Jr. issued Receipt No. 256 for the said amount.35 lawphil.net

On February 10, 1986, the BFAR, through Gonzales, awarded the sale of the "M/V Malasugui" to the Corporation and requested it to remit the amount of P138,900.00 in payment thereof.36 The BFAR delivered juridical possession of the vessel to the Corporation on February 27, 1986.37 On February 28, 1986, the Corporation remitted P138,900.00 as full payment of the vessel for which it was issued Official Receipt No. 2861007.38 The amount was deposited in the National Treasury on March 5, 1986.39 Thereafter, the BFAR released to the Corporation its bid bond of P13,890.00. On April 25, 1986, Caugma approved the change of entry in the book of accounts of the BFAR and credited P138,900.00 to it.40 However, on May 5, 1986, Antonio B. Baltazar, a former BFAR Chief Technologist who was separated from government service on September 19, 1975, filed a Complaint-Affidavit41 with the Ombudsman against Director Felix Gonzales for negligence under Article 365 of the Revised Penal Code on July 17, 1984 for the leaks of the vessel while berthed at Navotas, Metro Manila. Baltazar claimed, among others, that Gonzales had failed to file an insurance claim on the vessel from the Government Service Insurance System. The matter was referred to the COA. Meanwhile, on May 12, 1986, the National Treasurer remitted P33,457.80 to the Corporation42 as full payment for berthing fees and other services per Invoice No. 1529 and Disbursement Voucher dated January 28, 1985.43 On June 5, 1986, the Regional Director of the COA directed Villa Bernaldo (then BFAR Auditor) to conduct a discreet inquiry regarding Baltazars complaint.44 Bernaldo submitted her report on June 18, 1986, where she declared that the Corporation submitted its P138,900.00 bid, broken down as follows: publication fee, P2,400.00; berthing fee, P103,111.40; charges on the BFAR, P33,388.60; or a total of P138,900.00.45 According to Bernaldo, the berthing fee represented the amount BFAR billed the Corporation for dry-docking costs, and that this expense was included as one of the findings in the 1985 Annual Audit Report of the BFAR because it was incurred mainly due to the delay in the disposal of the "M/V Malasugui." She concluded that the appraised value of P86,917.60 was therefore, not met, but the fees incurred in connection with the disposal were included in the bid offer of P138,900.00 and was accepted by the Bureau. She admitted, however, that the amount of P138,900.00 had been fully accounted for, receipted under O.R. No. 2861007 dated March 4, 1986 and deposited as income in the National Treasury on March 5, 1986.46 Baltazar thereafter filed a Manifestation47 with the Ombudsman requesting the inclusion of Caugma, Abella, Bernaldo, and Martinez as respondents. The Ombusman required the Committee members to submit their counter-affidavits. In their Joint Counter-Affidavit and Rejoinder Affidavit,48 they declared inter alia that the bidding and sale of the vessel was made in accordance with law, as well as accounting and auditing rules and regulations. After the requisite preliminary investigation, Special Prosecution Officer Robert E. Kallos issued a Resolution49 dated July 24, 1992, recommending that the charges against Gonzales and Bernaldo be dropped; Gonzales acted in good faith, while Bernaldo was not present when the actual bidding was conducted. Thereafter, the Ombudsman filed an Information charging Eddie S. Galler, Jr., Marietta Caugma, Amiana Abella and Rosauro Martinez of violating Section 3(e) of Republic Act No. 3019. The accusatory portion of the information reads: That in or about and during the period from November 21, 1985 to November 28, 1985 and/or prior or subsequent thereto in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, accused Marietta T. Caugma, Amiana Abella and Rosauro Martinez, all public officers being then the Chairman, Vice-Chairman and member respectively, of the Disposal Committee of the Bureau of Fisheries and Aquatic Resources (BFAR), while in the discharge/exercise of their official administrative functions conspiring and confederating with

accused EDUARDO S. GALLER, JR., a private individual and representative of V.L. Shipyard of Navotas, did then and there willfully and unlawfully through evident bad faith cause undue injury to the BFAR/Government by then and there proceeding with a public bidding for the disposal of BFAR fishing vessel M/V Malasugui held on November 28, 1985 when only EDDIE S. GALLER, JR. was present and submitted his bid and thereafter accused public officers acted favorably on the itemized bid offer of EDDIE S. GALLER, JR. in spite of their knowledge that said bid offer is in violation of condition no. 8 of the Invitation to Bid and that the BFAR/Government will only get the amount of THIRTY THREE THOUSAND THREE HUNDRED EIGHTY EIGHT PESOS AND SIXTY CENTAVOS (P33,388.60), Philippines (sic) Currency, which is very much below the Appraised value of M/V Malasugui in the amount of P86,917.60, thereby causing damage or injury to the BFAR/Government in the sum of P53,529.00. CONTRARY TO LAW.50 On reinvestigation, the Ombudsman denied the recommendation of Special Prosecutor Reynaldo A. Alhambra to withdraw the Information for being unsupported by evidence.51 To prove the guilt of all the accused, the prosecution relied on the testimony of the BFAR Resident Auditors Bernaldo and Nacua. Bernaldo declared that she was present during the initial public bidding on November 21, 1985. However, during the public bidding on November 28, 1985, the COA was represented by Nacua. She claimed that the second bidding should not have proceeded because the lone bidder offered to purchase the vessel for only P33,388.60 instead of its appraised value as required by Section 6, paragraph 1 of E.O. No. 888.52 She further declared that to comply with E.O. No. 888, the minimum acceptable selling price was P190,000.00 broken down as follows: P2,400.00 for publication fee; berthing fee of P103,111.40; and P86,917.60 for the appraised value of the vessel.53 Considering that this bid price was not reached after the second bid, the Committee should have declared a failure of bid, hence, per COA regulations, the vessel should have been sold through negotiation for a price to be fixed by the Commission.54 In response to the clarificatory question of the Presiding Justice, Bernaldo declared that the transactions relative to the sale of the vessel were in order.55 She also affirmed the contents of petitioners Joint Affidavit and Rejoinder Joint Affidavit. Nacua, for her part, declared that the public auction/bidding was done in accordance with pertinent laws and COA rules and regulations. Caugma adduced testimonial and documentary evidence that as early as January 3, 1985, the Corporation had billed the BFAR for services rendered on the vessel after the July 18, 1984 incident, per Invoice No. 1529 for the amount of P33,457.80. The BFAR prepared and issued a Disbursement Voucher on January 28, 1985.56 The funding of the disbursement was released by the Ministry (now Department) of Budget and Management only on March 4, 1986 under CDC B0141-86-1-022. The Treasurer of the Philippines paid the amount to the Corporation on May 12, 1986, per PNB Check No. SN-5-7994745-4 for P33,457.00.57 She clarified that the P69,653.60 paid to the Corporation per Invoice Receipt No. 1589 dated November 8, 1985 was for mooring and berthing services, as well as part of the security services at the water front, electric supply, tug services from January 1, 1985 up to October 31, 1985, and other services provided to the vessel from January 1, 1985 to September 15, 1985. The payment of these bills to the Corporation was approved by no less than Villa Bernaldo, BFAR resident auditor.58 The two obligations of the BFAR totaling P103,111.40 were separate and valid obligations of BFAR which should not have been deducted from the proceeds of the sale to the winning bidder.59 Caugma further declared that on November 21, 1985, she explained to Galler, Jr. and Dr. Peras that the berthing fees referred to in the Invitation to Bid were those due from the publication of the Invitation to Bid up to the final award. The berthing fees from January 1, 1984 to October 31, 1985 were not for the account of the bidder. When she asked Galler, Jr. if the Corporation was waiving the publication fees and berthing fees from the time the invitation to bid was published up to the final award, Galler, Jr. agreed.

Galler, Jr. adopted the evidence of Caugma. He testified that he was the Marketing Manager of the Corporation, and that he had not met the Committee members before the public bidding on November 21, 1985.60 At that time, the purchase price of the vessel had not yet been fixed.61 He presented the two bills of the Corporation one for services, and another for berthing fees up to October 31, 1985 totaling P103,111.40. At the time, the Corporation had not yet presented its bill for berthing fees and various services from November 13, 1985 to November 21, 1985. His impression was that since the vessel was being sold on an "as is where is" basis, the other charges were not part of the bid and had to be separately paid. As far as he knew, the only interest of the BFAR was to recover the value of the vessel.62 He waived the berthing fees due from the publication of the Invitation to Bid until the final award.63 On November 28, 1985, he submitted the sealed bid of the Corporation which he signed upon the request of the Corporations president.64 The net bid price of the Corporation for the vessel was P138,900.00,65 but he could not recall whether this bid had been broken down because it was prepared by one of the staff, which he signed before submission to the Committee. The amount of P103,111.40 in his bid included the berthing fees of P46,000.00 and for miscellaneous services for the vessel.66 He felt that the P103,111.40, the amount the BFAR owed the Corporation for services rendered on the vessel, was a reasonable price, but the Corporation still submitted its bid to purchase it for P138,900.00 because it could repair the vessel at the least price.67 On July 29, 2004, the Sandiganbayan rendered judgment68 convicting the four (4) accused of the crime charged. The dispositive portion of the decision reads: WHEREFORE, judgment is hereby rendered finding accused Marietta T. Caugma, Amiana Abella, Rosauro Martinez and Eduardo S. Galler, Jr., GUILTY beyond reasonable doubt for violation of Sec. 3(e) of R.A. 3019 and are hereby sentenced to each suffer the indeterminate penalty of imprisonment from six (6) years and one (1) month as minimum to fifteen (15) years as maximum and to each suffer the penalty of perpetual disqualification from public office. SO ORDERED.69 The Sandiganbayan ruled that, under Condition No. 8 of the invitation to bid, only those bidders who had agreed to pay no less than the appraised value of the vessel, P86,917.60, excluding taxes, duties and other costs (such as berthing fees, publication of the bid and levies which may be imposed by law), should have been considered by the Committee. Caugma was aware of this condition in the invitation to bid, as evidenced by the minutes of the bidding held on November 21, 1985. She even explained the conditions of the sale to the bidders then present. The Sandiganbayan further declared that Caugma had knowledge of the fact that the berthing fee was P103,111.40 since it was clearly indicated in the invitation to bid. Thus, in evident bad faith, the accused conspired together and awarded the vessel to the Corporation for P138,900.00, of which only P33,388.60 would be remitted to the BFAR. It also held that Committee members Abella and Martinez took active part in the public bidding and, as evidenced by the Minutes of the Meeting, favored the Corporation. The Sandiganbayan concluded that the prosecution proved beyond reasonable doubt that the Disposal Committee gave unwarranted advantage and preference to Galler, Jr., causing injury to the government to the extent of P53,529.00; after deducting the publication fee of P2,400.00 and the berthing fee of P103,111.40, the government realized only the net amount of P33,388.60, short by P53,529.00 of the appraisal value of the vessel, P86,917.60. Petitioners moved for the reconsideration of the decision, which the graft court denied on January 26, 2005.70 Hence, petitioners filed the instant petition seeking the reversal of the Sandiganbayans ruling on the following claims: (1) they were denied their right to equal protection of the law; and (2) the

prosecution failed to prove that they acted in evident bad faith in awarding the sale of the vessel to the Corporation and that the BFAR suffered damage/injury in the amount of P53,529.00. Petitioners aver that the Committee complied with the requirements of E.O. No. 888 and of Fisheries Order No. 65, Series of 1983 relative to the sale of the fishing vessel. They maintain that their recommendation to accept the subject bid was in order, as even the BFAR Director concurred therein and transmitted a letter-request to the Minister of Agriculture and Food for authority to award the sale to the lone bidder; in turn, the Ministry Auditor interposed no objection as the said bid was higher than the vessels appraised value. Petitioners point out that no less than the Assistant Minister concurred with the Resident Auditor to the Committees recommendation. Petitioners likewise posit that the conditions set forth in the invitation to bid were complied with. They maintain that the Committees determination of the award is merely recommendatory and is not in itself a contract. Thus, the BFAR Director and the Assistant Minister should be charged and prosecuted for violation of Section 3(e) of Rep. Act No. 3019 considering that under E.O. No. 888, the Ministry of Agriculture and Food has the sole authority to dispose of the vessel. They point out that ultimately, it was the Ministry that sold the vessel to the Corporation. Since the BFAR Director and the Minister were not prosecuted, they (petitioners) should not have been charged and prosecuted for the sale of the vessel to the Corporation, otherwise their right to the equal protection of the law would be violated. Petitioners further aver that the prosecution failed to prove that they acted in evident bad faith and that the government sustained undue injury. They insist that the bid price of the fishing vessel was P138,900.00, not merely P33,388.60. Petitioners aver that this can be gleaned from the testimony of Bernaldo and Galler, Jr. The costs referred to in Condition No. 8 of the Condition of Sale pertained to all charges in connection with the sale of the vessel and were to be paid by the bidder, not as part of but in addition to the bid price of P138,900.00. The fact that BFAR owed to the Corporation has no relevance to the public bidding, as the obligation of BFAR in the amount of P103,111.40 is separate and distinct from the Corporations bid of P138,900.00. Petitioners point out that the amount of P138,900.00 was paid to the national treasury. Even assuming that the government sustained a loss of P53,529.00, they should not be the ones held liable therefor. The Office of the Special Prosecutor (OSP), for its part, avers that petitioners contention that their role in the public bidding was recommendatory in nature is baseless; such argument was proffered in order to evade responsibility for the unjust and disadvantageous sale which prejudiced the interest of the government. The subsequent issuance by the BFAR Director of the certificate of award to the winning bidder is only a formality. What consummates the sale is the Committees declaration of the winning bidder. When a qualified bidder is declared as such, it follows that such winning bidder will be awarded the contract or certificate of award; otherwise, taking part in the said bidding would be a meaningless exercise. The OSP maintains that when the subject fishing vessel was advertised for sale, the act of selling the property had begun as there was already an offer. After complying with the requirements on publication and invitation to bid, the Committee proceeded with the sale and the Corporation was declared the winning bidder. The contract was perfected at that moment, as there was already a meeting of the minds between the seller and the buyer. The Bureau Directors subsequent issuance of the Certificate of Award did not affect the contract which had already been perfected and consummated in the first place through the Committees actuations. Besides, the OSP asserts, the corresponding certificate of award would not have been issued had not the Committee declared the Corporation as the winning bidder. Thus, it was the Committee that conducted the sale and subsequently disposed of the fishing vessel in favor of said Corporation.

According to the OSP, "what is certain is that the public bidding was in fact a feigned, orchestrated and bogus one designed to prejudice the government, and this was known to petitioners before the bidding started." It argued further argued that: The appraised value of M/V Malasugui was P86,917.60 as reported to by the Disposal Committee. V/L Shipyard Corporation offered a bid in the amount of P133,900.00 (sic). In its application, V/L Shipyard broke down the items to constitute the amount of P133,900.00 (sic) as follows: Publication fee P 2,400.00 Berthing fee 103,111.40 BFAR 33,388.60 When the Disposal Committee published its Invitation to Bid, it was specific in one of its condition that "(t)he bidder agrees to pay in addition to the award, price, taxes, duties and other costs such as berthing fees, cost of publication of the bid, etc. and levies which may be imposed by law." It was a matter of fact that BFAR owed V/L Shipyard Corporation an amount of P103,111.40, as berthing fee, for [dry-docking] M/V Malasugui at its property. After deducting the said amount together with P2,400.00 for the cost of the publication of the bid from the bid proposal in the amount of P138,900.00, the amount of P33,388.60 was arrived at. And this amount of P33,388.60 will go to BFAR as itemized by V/L Shipyard ahead when it posted its bid for M/V Malasugui. To reiterate, the bid proposal of V/L Shipyard was included in the Invitation to Bid of BFAR. Clearly, the government lost an amount of P53,529.00. x x x xxxx In reality what was paid by V/L Shipyard Corporation for M/V Malasugui to BFAR was only P33,388.60, short of P53,529.00 from the appraised value of P86,917.60. The damage cost to the government was not merely negligible but more than substantial. From the foregoing, all the elements of Section 3 (e) of Republic Act No. 3019 were present, and thus, the conviction of all the petitioners, together with Eddie Galler, Jr. is correct.71 In their Reply, petitioners reiterate that their determination as Committee members was merely recommendatory and subject to the final approval of the Minister of Agriculture and Food as provided in Section 6 of E.O. No. 888. The petition is meritorious. Under the Constitution, accusation is not synonymous with guilt. In a criminal case, the accused is presumed innocent. It is incumbent upon the prosecution to prove the guilt of the accused for the crime charged beyond reasonable doubt. His freedom is forfeited only if the requisite quantum of proof necessary for conviction exists. The accused is even obliged to offer evidence in his behalf. The proof against him must survive the test of reason; the strongest suspicion must not be permitted to become a summary judgment. The conscience must be satisfied that on the accused could be laid the responsibility for the offense charged in that not only did he perpetrate the act but that it amounted to a crime. It is required that every circumstance favoring his innocence be duly taken into account.72 Thus, the burden of proof never shifts to the accused. Section 3(e) of Rep. Act No. 3019 provides: (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative

or judicial functions through manifest partiality, evident bad faith, or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. The essential elements of violation of the provision are as follows: 1. The accused must be a public officer discharging administrative, judicial or official functions; 2. He must have acted with manifest partiality, evident bad faith or inexcusable negligence; and 3. That his action caused any undue injury to any party, including the government, or giving any private party unwarranted benefits, advantage or preference in the discharge of his functions.73 It must be stressed that mere bad faith is not enough for one to be liable under the law, since the act of bad faith must in the first place be evident.74 Elaborating on the meaning of evident bad faith, this Court held in Marcelo v. Sandiganbayan:75 Bad faith does not simply connote bad judgment or negligence; it imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; it partakes of the nature of fraud. (Spiegel v. Beacon Participations, 8 NE 2nd Series, 895, 1007). It contemplates a state of mind affirmatively operating with furtive design or some motive of self-interest or ill will for ulterior purposes. (Air France v. Carrascoso, 18 SCRA 155, 166-167). Evident bad faith connotes a manifest deliberate intent on the part of the accused to do wrong or cause damage. Undue injury has been interpreted as synonymous to actual damages which is akin to that in civil law.76 The prosecution is burdened to prove the factual basis and amount of loss with a reasonable degree of certainty, premised upon competent proof and on the best evidence obtainable by the injured party.77 Courts cannot simply rely on speculations, conjectures or guesswork in determining the fact and the amount of damages.78 Conspiracy or collusion by and among public officers, inter se, and via private individuals to commit the crime under Section 3(e) of Rep. Act No. 3019 must likewise be proven by the prosecution beyond reasonable doubt. This was the ruling of the Court in Desierto v. Ocampo:79 Collusion implies a secret understanding whereby one party plays into anothers hands for fraudulent purposes. It may take place between and every contractor resulting in no competition, in which case, the government may declare a failure of bidding. Collusion may also ensue between contractors and the chairman and members of the PBAC to simulate or rig the bidding process, thus insuring the award to a favored bidder, to the prejudice of the government agency and public service. For such acts of the chairman and the members of the PBAC, they may be held administratively liable for conduct grossly prejudicial to the best interest of the government service. Collusion by and among the members of the PBAC and/or contractors submitting their bids may be determined from their collective acts or omissions before, during and after the bidding process. The complainants are burdened to prove such collusion by clear and convincing evidence because if so proved, the responsible officials may be dismissed from the government service or meted severe administrative sanctions for dishonesty and conduct prejudicial to the government service. To prove the guilt of petitioners for the crime charged, the prosecution presented COA Auditors Nacua and Bernaldo, and the report prepared by the latter dated June 18, 1986. However, contrary to petitioners stance, the collective testimonies of the witnesses tend to exculpate petitioners.

In her Report, Bernaldo declared that the Corporations bid for the vessel was only P33,388.60, P53,529.00 short of the threshold minimum price of P86,917.60, as provided in Condition No. 8 of the Invitation to Bid: 8. That the bidder agrees to pay in addition to the award price, taxes, duties and other costs such as berthing fees, cost of publication of the bid, etc. and levies which may be imposed by law.80 Bernaldo testified that the Corporations bid indicated the amount of P103,111.40, its claim for berthing fees and for various services rendered for the vessel from September 11, 1984 to October 31, 1985 under Bill Nos. 1529 and 1589, and that such expenses should be deducted from its bid of P138,900.00. She maintained that a qualified bidder should have submitted a bid not lower than P192,529.60. Bernaldo concluded that the Corporation submitted a bid of only P33,388.00, P53,529.00 short of a threshold minimum bid for the vessel; hence, the government lost P53,529.00 in the sale of the vessel. However, in the Joint Affidavit81 submitted to the Ombudsman, petitioners, including Bernaldo, categorically declared that the bid price of the Corporation was P138,900.00, and that such bid was higher than the appraised value of the vessel amounting to P86,917.60. Bernaldo declared that the P138,900.00 was fully accounted for under O.R. No. 2861007 dated March 4, 1986, and deposited as income in the national treasury on March 5, 1986. Petitioners and Bernaldo maintained that the sale of the vessel was made in accordance with accounting and auditing rules and regulations of the government. Bernaldo was as adamant as petitioners when they declared in their Rejoinder Joint Affidavit82 submitted to the Ombudsman that the disposition of the vessel was made strictly in accordance with the law, rules and regulations of the government on the disposition of government property: 6. That the obligations under Bill No. 1529 in the amount of P33,457.00 dated January 3, 1985 for services rendered in 1984 by the [V/L] Shipyard Corporation, was noted and approved for payment by the Bureau Resident Auditor and requested for the revalidation by the Bureau with the Department of Budget and Management and a corresponding funding was released by the said Department of Budget and Management under CDC No. B-0141-86-1-022 dated March 4, 1986. The obligation under Bill No. 1589 dated November 8, 1985 in the amount of P69,653.60 were services rendered by the [V/L] Shipyard Corporation in the form of mooring on berthing fee, including share on security services at water front, supply of electrical power and four units light bulbs during night time, from January 1, 1985 up to October 31, 1985; tug service; supplied vessels crew with freshwater requirements on board from January 1, 1985 up to October 31, 1985 and provided vessel with one (1) set gasoline driven 3" diameter centrifugal water pump, and supplied gasoline, oil operator and mechanics from January 1, 1985 to September 15, 1985. That the said obligation under Obligation No. 409-102-12-412-85 was approved and concurred by the Bureau Auditor of the Commission on Audit. Thus, the two obligations (Bill Nos. 1529 and 1589 in the total amount of P103,111.40 of the Bureau with the [V/L] Shipyard Corporation were for services rendered and therefore, separate and distinct valid obligations of the Bureau to the Corporation. The two obligations were preaudited by the Bureau Auditor before payments were made by the Bureau. The payment of P103,111.40, therefore, for the berthing fees and other services rendered by [V/L] Shipyard Corporation was made in accordance with accounting and auditing rules and regulations and therefore should not be added nor deducted from the proceeds of the sale of the vessel. Xerox copies of the Requests for Obligation of Allotment for [V/L] Shipyard Corporation in the amount of P33,457.00 and P69, 653.50, for various services rendered for RPS Malasugui in 1984 and 1985 as noted and approved by the Bureau Auditor of the Commission on Audit before payment can be made by the Bureau as Annexes 8 and 9[,] respectively. Xerox copies of the two vouchers for P33,457.00 and P69,653.60 with all supporting documents including the description of the services rendered by [V/L] Shipyard Corporation approved by Director Juanito B. Malig and Mr. Felix R. Gonzales, former Director of the Bureau, respectively, as Annexes 10 and 11.83

When queried by the Sandiganbayan Presiding Justice, Bernaldo categorically declared that there was nothing wrong with the transaction relative to the award and sale of the vessel to the Corporation: PJ GARCHITORENA Questions from the Court. Q Madam witness, as far as you are concerned what was wrong with the transaction or was there anything wrong with the transaction? WITNESS A I do not see anything wrong because the amount was more than the appraised value. Q So, as far as you are concerned the transaction was in order? A Yes, sir.84 When asked whether her and petitioners Joint Affidavit and Rejoinder Affidavit were correct even in the light of the June 18, 1986 Report, Bernaldo answered in the affirmative: Q Madam witness, when you executed this Joint Affidavit as well as the Rejoinder which have been marked as Exhibits 26 and 27[,] respectively[,] sometime in 1987, this superceded your previous Report, do you agree with me? PROS. TABANGUIL That will call for the conclusion of the witness, your Honor. PJ GARCHITORENA Sustained. If there is a contradiction then there is contradiction. Whether it supercedes or not is something you will have to find out, unless you will ask her why she excluded one and then the other. ATTY BLANES . Q Now, when you executed Exhibit 26, Madam witness, you have taken into account your indorsement dated June 18, 1986 A Yes, sir. Q And your Joint Affidavit and your Rejoinder explained correctly what actually happened with respect to the sale of M/V Malasugui? PROS. TABANGUIL Vague, your Honor. PJ GARCHITORENA May answer. WITNESS

They were both correct.85 It bears stressing that the Rejoinder Affidavit86 executed by petitioners and Bernaldo were adduced in evidence by no less than the prosecution itself. Bernaldo even sought the dismissal of the criminal complaint filed by the Ombudsman against her for violation of Section 3(e) of Rep. Act No. 3019 based on the Joint Affidavit and Rejoinder Affidavit. Not to be outdone was COA auditor Marlene Nacua who declared on cross-examination that not only was the bidding process made on November 28, 1985 in order, but also that the bid of the Corporation was in accordance with COA regulations: ATTY PADERNAL . Q At the time of the bid you know that procedure well. A Yes, sir. Q And knowing that procedure[,] you did not interpose any objection to the decision of the committee to open the bid, the lone bid of [V/L] Shipyard, is that correct. A Yes, sir. Q And am I correct to say also that as representative of the Commission on Audit during the bid although you act as a witness, you have to guide the committee as to the regulations of the Commission on Audit, is that correct, Mrs. Witness. A Yes, sir. Q And when the bid was opened to [V/L] Shipyard it was then your belief and perception at the time that the committee had followed all the regulations of the Commission on Audit. A Yes, sir.87 xxxx Q That is why when the committee decided to open and award the bid to [V/L] Shipyard and submitted a payment of One Hundred Thirty Eight Thousand Nine Hundred Pesos (P138,900.00) you did not interpose any objection or guided the committee as to whether or not the bid was wrong or in accordance with the COA rules and regulations because you believe then that the bid and the opening of the bid was in accordance with the COA regulations, is that correct. A Yes, sir.88 By her testimony, Nacua thereby implied that the petitioners acted in good faith when the Committee conducted the bid process and made its recommendation to the Ministry of Agriculture and Food. The BFAR Director found no infirmity in the bid process, as shown in the minutes of the meeting on November 18, 1985 and the Committees recommendation. Moreover, no less than BFAR Director Gonzales concurred with the Committees recommendation and requested the Minister of Agriculture and Food for authority to award the sale of the vessel to the Corporation for P138,900.00 which included the P103,111.40 for services and berthing fees and P2,400.00 as publication fee. The Resident Auditor of the Ministry studied the matter very carefully and found no factual and legal basis for any objection to the recommendation. The Assistant Minister of Agriculture and Food also found the Committees recommendation in accordance with law and COA rules and regulations, and directed the BFAR to award the vessel to

the Corporation for P138,900.00. The Bureau Director complied with the directive. The ranking officials of the Ministry found no infirmity in the bid process and the Committees recommendation, evidence of which was adduced by no less than the prosecution itself. We agree with petitioners contention that the recommendation of the Committee to the Ministry to approve the award of the sale was not in itself a contract of sale in favor of the Corporation. The sale of the vessel was perfected only upon notice to said Corporation that the sale of the vessel had been awarded to it. Article 1318 of the New Civil Code provides that there is no contract unless the following requisites concur: (1) Consent of the contracting parties; (2) Object certain which is the subject matter of the contract; (3) Cause of the obligation which is established. Consent is manifested by the meeting of the offer and the acceptance upon the thing and the cause which are to constitute the contract. An offer is the manifestation of willingness to enter into a bargain in such a way as to justify the other process in understanding that an assessment will conclude the agreement. An offer ripens into a contract when it is accepted. The offer must be certain and the acceptance absolute.89 Thus, a bid at an auction constitutes an offer to buy. Where, as in this case, the seller reserved the right to refuse to accept any bid made, a binding sale is not perfected until the seller accepts the bid. The seller may exercise his right to reject any bid even after the auctioneer has accepted a bid.90 The mere determination of a public official bound to accept the offer or a proposal of a bidder does not constitute a contract.91 Anent petitioners contention that the Committee had no authority to dispose of the vessel to the Corporation through the sale at public auction, Section 1 of E.O. No. 888 provides that the Ministers or Heads of ministries of the government shall have the full and sole authority and responsibility to dispose of all unserviceable equipment and property: Section 1. Authority to Dispose The provisions of existing laws, rules and regulations to the contrary notwithstanding, the Ministers or Heads of Ministries/Agencies of the Government shall have the full and sole authority and responsibility to dispose of, all unserviceable equipment and property of their respective Ministries/Agencies. (emphasis supplied) In cases of agencies attached to the Ministry of Agriculture and Food such as the BFAR, the Committee merely determines the awardee and makes a recommendation to the Minister concerned. In fine, the recommendation of the Committee is subject to such final approval: 6. In the case of agencies attached to certain Ministries, recommendations of the Disposal Committee is subject to the final approval of the Minister concerned (emphasis supplied). The awardee is not obliged to make payment for the property bid until after notice to the awardee. It is only when the awardee receives the notice of award that a contract of sale is perfected between the bidder and the seller. In this case, the Corporation was notified of the award only after February 28, 1986. It was only upon its receipt of the notice of award that a contract of sale had been perfected between the government, as seller, and the Corporation as buyer. The Committee had no involvement in the sale of the vessel to the Corporation apart from its recommendation on the November 28, 1986

bidding, and yet, the Ombudsman indicted only petitioners, excluding the BFAR Director, Resident Auditor and Assistant Minister of Agriculture and Food. We agree with petitioners contention that the crime of violation of Section 3(e) of Rep. Act No. 3019 was not committed when the Committee conducted the bidding on November 28, 1985 and resolved to recommend to the Minister, through the BFAR Director, to award the sale of the vessel to the Corporation; neither was it committed when the award was made by the BFAR Director to the Corporation. This is so because there was as yet no evidence that the government sustained a loss of P53,529.60. The crime would have been committed if the Corporation had remitted to the National Treasurer the P138,900.00, and the P103,111.40 was applied by way of set-off against Bureaus account to said Corporation for Bill Nos. 1529 and 1589. The prosecution failed to prove beyond reasonable doubt that the government lost P53,529.00 in the sale of the vessel. The only evidence presented is the Corporations bid and the Report of Villa Bernaldo on June 18, 1986. The Prosecution offered no competent and sufficient evidence to prove the actual damages caused to the government. On the other hand, the BFAR Director declared that the vessel was sold to the Corporation for P138,900.00, which accepted and remitted the amount to the national treasury, as full payment of the vessel. The government receipted the amount "as proceeds of the sale" of the vessel.92 To reiterate, there is no evidence on record that, after the Corporation had remitted the P138,900.00 on February 28, 1986, P103,111.40 thereof was applied to the Bureaus account under Bill Nos. 1529 and 1589 by way of set off. In fact, on January 6, 1986, before the sale of the vessel was awarded to the Corporation, the government had already remitted the P69,653.60 to it in payment of Bill No. 1589. The government did not even apply a portion of the P138,900.00 as payment of its account of P33,388.60 under Bill No. 1529, and instead paid the amount to the Corporation on May 12, 1986. Thus, the full amount of the bid price, P138,900.00, which the Corporation remitted to the national treasury was intact as Bernaldo stated in her June 18, 1986 Report; yet, petitioners were prosecuted and convicted of violation of Section 3(e) of Rep. Act No. 3019. In fine then, the Court holds that the travesty which had been committed must be undone. IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision of the Sandiganbayan is REVERSED and SET ASIDE. Petitioners Marietta T. Caugma, Amiana Abella and Rosauro Martinez are ACQUITTED of the crime charged. The bail bonds posted for petitioners provisional liberty are CANCELLED. No costs. SO ORDERED. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 160211 August 28, 2006 VENANCIO R. NAVA, Petitioner, vs. The Honorable Justices RODOLFO G. PALATTAO, GREGORY S. ONG, and MA. CRISTINA G. CORTEZESTRADA as Members of the Sandiganbayans Fourth Division, and the PEOPLE OF THE PHILIPPINES, Respondents. DECISION

PANGANIBAN, CJ: A meticulous review of the records and the evidence establishes the guilt of the accused beyond reasonable doubt. Clearly, the prosecution was able to prove all the elements of the crime charged. Hence, the conviction of petitioner is inevitable. The Case Before us is a Petition for Certiorari 1 under Rule 65 of the Rules of Court, assailing the June 2, 2003 Decision 2 and September 29, 2003 Resolution of the Sandiganbayan in Criminal Case No. 23627. The dispositive portion of the challenged Decision reads: "WHEREFORE, premises considered, judgment is hereby rendered convicting accused VENANCIO NAVA Y RODRIGUEZ of the crime of violation of the Anti-Graft and Corrupt Practices Act particularly Section 3(g) thereof, or entering on behalf of government in any contract or transaction manifestly and grossly disadvantageous to the same whether or not the pubic officer profited or will profit thereby. In the absence of any aggravating or mitigating circumstances, applying the Indeterminate Sentence Law, accused is hereby sentenced to suffer the penalty of imprisonment of six (6) years, and one (1) day as minimum to twelve (12) years and one (1) day as maximum and to suffer perpetual disqualification from public office. Accused Nava is further ordered to pay the government the amount of P380,013.60 which it suffered by way of damages because of the unlawful act or omission committed by the herein accused Venancio Nava. "From the narration of facts, there hardly appears any circumstance that would suggest the existence of conspiracy among the other accused in the commission of the crime. "Thus in the absence of conspiracy in the commission of the crime complained of and as the herein other accused only acted upon the orders of accused Venancio Nava, in the absence of any criminal intent on their part to violate the law, the acts of the remaining accused are not considered corrupt practices committed in the performance of their duties as public officers and consequently, accused AJATIL JAIRAL Y PONGCA, ROSALINDA MERKA Y GUANZON & JOSEPH VENTURA Y ABAD are hereby considered innocent of the crime charged and are hereby acquitted." 3 The assailed Resolution dated September 29, 2003, denied reconsideration. The Facts The Sandiganbayan narrated the facts of this case as follows: "The complaint involving the herein accused was initiated by the COA, Region XI, Davao City, which resulted from an audit conducted by a team which was created by the COA Regional Office per COA Regional Assignment Order No. 91-74 dated January 8, 1991. The objective of the team [was] to conduct an audit of the 9.36 million allotment which was released in 1990 by the DECS, Region XI to its Division Offices. "In the Audit Report, the amount of P603,265.00 was shown to have been released to the DECS Division of Davao del Sur for distribution to the newly nationalized high schools located within the region. Through the initiative of accused Venancio Nava, a meeting was called among his seven (7) schools division superintendents whom he persuaded to use the money or allotment for the purchase of Science Laboratory Tools and Devices (SLTD). In other words, instead of referring the allotment to the one hundred fifty-five (155) heads of the nationalized high schools for the improvement of their facilities, accused Nava succeeded in persuading his seven (7) schools division superintendents to use the allotment for the purchase of science education facilities for the calendar year 1990.

"In the purchase of the school materials, the law provides that the same shall be done through a public bidding pursuant to Circular No. 85-55, series of 1985. But in the instant case, evidence shows that accused Nava persuaded his seven (7) schools division superintendents to ignore the circular as allegedly time was of the essence in making the purchases and if not done before the calendar year 1990, the funds allotted will revert back to the general fund. "In the hurried purchase of SLTDs, the provision on the conduct of a public bidding was not followed. Instead the purchase was done through negotiation. Evidence shows that the items were purchased from Jovens Trading, a business establishment with principal address at Tayug, Pangasinan; D[I]mplacable Enterprise with principal business address at 115 West Capitol Drive, Pasig, Metro Manila and from Evelyn Miranda of 1242 Oroqueta Street, Sta. Cruz, Manila. As disclosed by the audit report, the prices of the [SLTDs] as purchased from the above-named sellers exceeded the prevailing market price ranging from 56% to 1,175% based on the mathematical computation done by the COA audit team. The report concluded that the government lost P380,013.60. That the injury to the government as quantified was the result of the non-observance by the accused of the COA rules on public bidding and DECS Order No. 100 suspending the purchases of [SLTDs]." 4 The Commission on Audit (COA) Report recommended the filing of criminal and administrative charges against the persons liable, including petitioner, before the Office of the OmbudsmanMindanao. Petitioner was subsequently charged in an Information 5 filed on April 8, 1997, worded as follows: "That on or about the period between November to December 1990, and for sometime prior or subsequent thereto, in Digos, Davao Del Sur and/or Davao City, Philippines and within the jurisdiction of this Honorable Court, the accused Venancio R. Nava (DECS-Region XI Director) and Ajatil Jairal (Division Superintendent, DECS, Davao del Sur), both high[-]ranking officials and Rosalinda Merka, and Teodora Indin (Administrative Officer and Assistant Division Superintendent, respectively of DECS-Division of Davao Del Sur), all low ranking officials, while in the discharge of their respective official functions, committing the offense in relation to their office and with grave abuse [of] authority, conniving and confederating with one another, did then and there willfully, unlawfully and feloniously enter, on behalf of the government, into transactions with DImplacable Enterprise and Jovens Trading, respectively, represented by accused Antonio S. Tan and Evelyn Miranda and Joseph Ventura for the purchase of Science Laboratory Tools and Devices (SLTD) intended for use by the public high schools in the area amounting to [P603,265.00], Philippine currency, without the requisite public bidding and in violation of DECS Order No. 100, Series of 1990, which transaction involved an overprice in the amount of P380,013.60 and thus, is manifestly and grossly disadvantageous to the government." 6 Special Prosecution Officer II Evelyn T. Lucero-Agcaoili recommended the dismissal of the foregoing Information on the ground, among others, that there was no probable cause. She argued that only estimates were made to show the discrepancy of prices instead of a comparative listing on an item to item basis. 7 The recommendation was disapproved, however, by then Ombudsman Aniano A. Desierto. Ruling of the Sandiganbayan After due trial, only petitioner was convicted, while all the other accused were acquitted. 8 Petitioner was found guilty of violating Section 3(g) of the Anti-Graft and Corrupt Practices Act, or entering on behalf of the government any contract or transaction manifestly and grossly disadvantageous to the latter, whether or not the public officer profited or would profit thereby.

The Sandiganbayan (SBN) said that, in the purchase of the Science Laboratory Tools and Devices (SLTDs), petitioner had not conducted a public bidding in accordance with COA Circular No. 8555A. As a result, the prices of the SLTDs, as purchased, exceeded the prevailing market price from 56 percent to 1,175 percent, based on the mathematical computations of the COA team. 9 In his defense, petitioner had argued that the said COA Circular was merely directory, not mandatory. Further, the purchases in question had been done in the interest of public service. 10 The Sandiganbayan did not give credence to the foregoing defenses raised by petitioner. On the contrary, it found the evidence adduced by petitioners co-accused, Superintendent Ajatil Jairal, to be "enlightening," manifesting an intricate web of deceit spun by petitioner and involving all the other superintendents in the process. 11 The graft court did not accept the claim of petitioner that he signed the checks only after the other signatories had already signed them. The evidence showed that blank Philippine National Bank (PNB) checks had been received by Nila E. Chavez, a clerk in the regional office, for petitioners signature. The Sandiganbayan opined that the evidence amply supported Jairals testimony that the questioned transactions had emanated from the regional office, as in fact, all the documents pertinent to the transaction had already been prepared and signed by petitioner when the meeting with the superintendents was called sometime in August 1990. 12 In that meeting, the superintendents were given prepared documents like the Purchase Orders and vouchers, together with the justification. 13 This circumstance prompted Jairal to conduct his own canvass. The Sandiganbayan held that this act was suggestive of the good faith of Jairal, thereby negating any claim of conspiracy with the other co-accused and, in particular, petitioner. In its assailed Resolution, the SBN denied petitioners Motion for Reconsideration. It held that the series of acts culminating in the questioned transactions constituted violations of Department of Education, Culture and Sports (DECS) Order No. 100; and COA Circular No. 85-55A. Those acts, ruled the SBN, sufficiently established that the contract or transaction entered into was manifestly or grossly disadvantageous to the government. Hence, this Petition. 14 The Issues Petitioner raises the following issues for our consideration: "I. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in upholding the findings of the Special Audit Team that irregularly conducted the audit beyond the authorized period and which team falsified the Special Audit Report. "II. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in upholding the findings in the special audit report where the Special Audit Team egregiously failed to comply with the minimum standards set by the Supreme Court and adopted by the Commission on Audit in violation of petitioners right to due process, and which report suppressed evidence favorable to the petitioner. "III. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in upholding the findings in the Special Audit Report considering that none of the allegedly overpriced items were canvassed or purchased by the Special Audit Team such that there is no competent evidence from which to determine that there was an overprice and that the transaction was manifestly and grossly disadvantageous to the government.

"IV. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in finding that there was an overprice where none of the prices of the questioned items exceeded the amount set by the Department of Budget and Management. "V. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in selectively considering the findings in the decision in Administrative Case No. XI-91-088 and failing to consider the findings thereon that petitioner was justified in undertaking a negotiated purchase and that there was no overpricing. "VI. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in selectively considering the findings of XI-91-088 and failing to consider the findings thereon that petitioner was justified in undertaking a negotiated purchase, there was no overpricing, and that the purchases did not violate DECS Order No. 100. "VII. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in failing to absolve the petitioner where conspiracy was not proven and the suppliers who benefited from the alleged overpricing were acquitted. "VIII. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in admitting in evidence and giving probative value to Exhibit 8 the existence and contents of which are fictitious. "IX. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in giving credence to the self-serving and perjurious testimony of coaccused Ajatil Jairal that the questioned transactions emanated from the regional office [in spite] of the documentary evidence and the testimony of the accused supplier which prove that the transaction emanated from the division office of Digos headed by co-accused Ajatil Jairal. "X. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in finding that the petitioner entered into a transaction that was manifestly and grossly disadvantageous to the government where the evidence clearly established that the questioned transactions were entered into by the division office of Digos through co-accused Ajatil Jairal. "XI. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in convicting the petitioner in the absence of proof beyond reasonable doubt." 15 All these issues basically refer to the question of whether the Sandiganbayan committed reversible errors (not grave abuse of discretion) in finding petitioner guilty beyond reasonable doubt of violation of Section 3(g), Republic Act No. 3019. The Courts Ruling The Petition has no merit. Procedural Issue: Propriety of Certiorari At the outset, it must be stressed that to contest the Sandiganbayans Decision and Resolution on June 2, 2003 and September 29, 2003, respectively, petitioner should have filed a petition for review on certiorari under Rule 45, not the present Petition for Certiorari under Rule 65. Section 7 of Presidential Decree No. 1606, 16 as amended by Republic Act No. 8249, 17 provides that "[d]ecisions and final orders of the Sandiganbayan shall be appealable to the Supreme Court by petition for review on certiorari raising pure questions of law in accordance with Rule 45 of the

Rules of Court." Section 1 of Rule 45 of the Rules of Court likewise provides that "[a] party desiring to appeal by certiorari from a judgment or final order or resolution of the x x x Sandiganbayan x x x whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth." Basic is the principle that when Rule 45 is available, recourse under Rule 65 cannot be allowed either as an add-on or as a substitute for appeal. 18 The special civil action for certiorari is not and cannot be a substitute for an appeal, when the latter remedy is available. 19 This Court has consistently ruled that a petition for certiorari under Rule 65 lies only when there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law. 20 A remedy is considered plain, speedy and adequate if it will promptly relieve the petitioner from the injurious effects of the judgment and the acts of the lower court or agency or as in this case, the Sandiganbayan. 21 Since the assailed Decision and Resolution were dispositions on the merits, and the Sandiganbayan had no remaining issue to resolve, an appeal would have been the plain, speedy and adequate remedy for petitioner. To be sure, the remedies of appeal and certiorari are mutually exclusive and not alternative or successive. 22 For this procedural lapse, the Petition should have been dismissed outright. Nonetheless, inasmuch as it was filed within the 15-day period provided under Rule 45, the Court treated it as a petition for review (not certiorari) under Rule 45 in order to accord substantial justice to the parties. Thus, it was given due course and the Court required the parties to file their Memoranda. Main Issue: Sufficiency of Evidence Petitioner argues that the Sandiganbayan erred in convicting him, because the pieces of evidence to support the charges were not convincing. Specifically, he submits the following detailed argumentation: "1. the Special Audit Report was fraudulent, incomplete, irregular, inaccurate, illicit and suppressed evidence in favor of the Petitioner; "2. there was no competent evidence to determine the overprice as none of the samples secured by the audit team from the Division of Davao del Sur were canvassed or purchased by the audit team; "3. the allegedly overpriced items did not exceed the amount set by the Department of Budget and Management; "4. the decision in an administrative investigation were selectively lifted out of context; "5. the administrative findings that Petitioner was justified in undertaking a negotiated purchase, that there was no overpricing, and that the purchases did not violate DECS Order No. 100 were disregarded; "6. Exhibit 8, the contents of which are fictitious, was admitted in evidence and given probative value; "7. The suppliers who benefited from the transactions were acquitted, along with the other accused who directly participated in the questioned transactions; and

"8. The self-serving and perjury-ridden statements of co-accused Jairal were given credence despite documentary and testimonial evidence to the contrary." 23 Petitioner further avers that the findings of fact in the Decision dated October 21, 1996 in DECS Administrative Case No. XI-91-088 24 denied any overpricing and justified the negotiated purchases in lieu of a public bidding. 25 Since there was no overpricing and since he was justified in undertaking the negotiated purchase, petitioner submits that he cannot be convicted of violating Section 3(g) of Republic Act No. 3019. Validity of Audit The principal evidence presented during trial was the COA Special Audit Report (COA Report). The COA is the agency specifically given the power, authority and duty to examine, audit and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of fund and property owned by or pertaining to the government. 26 It has the exclusive authority to define the scope of its audit and examination and to establish the required techniques and methods. 27 Thus, COAs findings are accorded not only respect but also finality, when they are not tainted with grave abuse of discretion. 28 Only upon a clear showing of grave abuse of discretion may the courts set aside decisions of government agencies entrusted with the regulation of activities coming under their special technical knowledge and training. 29 In this case, the SBN correctly accorded credence to the COA Report. As will be shown later, the Report can withstand legal scrutiny. Initially, petitioner faults the audit team for conducting the investigation beyond the twenty-one day period stated in the COA Regional Office Assignment Order No. 91-174 dated January 8, 1991. But this delay by itself did not destroy the credibility of the Report. Neither was it sufficient to constitute fraud or indicate bad faith on the part of the audit team. Indeed, in the conduct of an audit, the length of time the actual examination occurs is dependent upon the documents involved. If the documents are voluminous, then it necessarily follows that more time would be needed. 30 What is important is that the findings of the audit should be sufficiently supported by evidence. Petitioner also imputes fraud to the audit team for making "it appear that the items released by the Division Office of Davao Del Sur on 21 February 1991 were compared with and became the basis for the purchase of exactly the same items on 20 February 1991." 31 The discrepancy regarding the date when the samples were taken and the date of the purchase of the same items for comparison was not very material. The discrepancy per se did not constitute fraud in the absence of ill motive. We agree with respondents in their claim of clerical inadvertence. We accept their explanation that the wrong date was written by the supplier concerned when the items were bought for comparison. Anyway, the logical sequence of events was clearly indicated in the COA Report: "1.5.1. Obtained samples of each laboratory tools and devices purchased by the Division of Davao del Sur, Memorandum Receipts covering all the samples were issued by the agency to the audit team and are marked as Exhibits 1.2 and 3 of this Report." "1.5.2. Bought and presented these samples to reputable business establishments in Davao City like Mercury Drug Store, Berovan Marketing Incorporated and [A]llied Medical Equipment and Supply Corporation (AMESCO) where these items are also available, for price verification. "1.5.3. Available items which were exactly the same as the samples presented were purchased from AMESCO and Berovan Marketing Incorporated, the business establishments which quoted

the lowest prices. Official receipts were issued by the AMESCO and Berovan Marketing Incorporated which are hereto marked as Exhibits 4,5,6 and 7 respectively." 32 The COA team then tabulated the results as follows: 33 Item Purchased Unit Cost Recanvassed Price + 10% Allow. Difference % of Over-pricing Quantity Purchased Total Amount of Overpricing Flask Brush made of Nylon P112.20 P8.80 P103.40 1,175% 400 P41,360.00 Test Tube Glass Pyrex (18x50 mm) 22.36 14.30

8.06 56% 350 2,821.00 Graduated Cylinder Pyrex (100ml) 713.00 159.50 553.50 347% 324 179,334.00 Glass Spirit Burner (alcohol lamp) 163.50 38.50 125.00 325% 144 18,000.00 Spring Balance (12.5kg)Germany 551.00

93.50 457.50 489% 102 46,665.00 Iron Wire Gauge 16.20 9.90 6.30 64% 47 296.10 Bunsen Burner 701.00 90.75 610.25 672% 150 91,537.50 Total P380,013.60

What is glaring is the discrepancy in prices. The tabulated figures are supported by Exhibits "E1," "E-2," "E-3," and "E-4," the Official Receipts evidencing the equipment purchased by the audit team for purposes of comparison with those procured by petitioner. 34 The authenticity of these Exhibits is not disputed by petitioner. As the SBN stated in its Decision, the fact of overpricing -as reflected in the aforementioned exhibits -- was testified to or identified by Laura S. Soriano, team leader of the audit team. 35 It is hornbook doctrine that the findings of the trial court are accorded great weight, since it was able to observe the demeanor of witnesses firsthand and up close. 36 In the absence of contrary evidence, these findings are conclusive on this Court. It was therefore incumbent on petitioner to prove that the audit team or any of its members thereof was so motivated by ill feelings against him that it came up with a fraudulent report. Since he was not able to show any evidence to this end, his contention as to the irregularity of the audit due to the discrepancy of the dates involved must necessarily fail. An audit is conducted to determine whether the amounts allotted for certain expenditures were spent wisely, in keeping with official guidelines and regulations. It is not a witch hunt to terrorize accountable public officials. The presumption is always that official duty has been regularly performed 37 -- both on the part of those involved with the expense allotment being audited and on the part of the audit team -- unless there is evidence to the contrary. Due Process Petitioner likewise invokes Arriola v. Commission on Audit 38 to support his claim that his right to due process was violated. In that case, this Court ruled that the disallowance made by the COA was not sufficiently supported by evidence, as it was based on undocumented claims. Moreover, in Arriola, the documents that were used as basis of the COA Decision were not shown to petitioners, despite their repeated demands to see them. They were denied access to the actual canvass sheets or price quotations from accredited suppliers. As the present petitioner pointed out in his Memorandum, the foregoing jurisprudence became the basis for the COA to issue Memorandum Order No. 97-012 dated March 31, 1997, which states: "3.2 To firm up the findings to a reliable degree of certainty, initial findings of overpricing based on market price indicators mentioned in pa. 2.1 above have to be supported with canvass sheet and/or price quotations indicating: a) the identities of the suppliers or sellers; b) the availability of stock sufficient in quantity to meet the requirements of the procuring agency; c) the specifications of the items which should match those involved in the finding of overpricing; d) the purchase/contract terms and conditions which should be the same as those of the questioned transaction" Petitioners reliance on Arriola is misplaced. First, that Decision, more so, the COA Memorandum Order that was issued pursuant to the former, was promulgated after the period when the audit in the present case was conducted. Neither Arriola nor the COA Memorandum Order can be given any retroactive effect. Second and more important, the circumstances in Arriola are different from those in the present case. In the earlier case, the COA merely referred to a cost comparison made by the engineer of COA-Technical Services Office (TSO), based on unit costs furnished by the Price Monitoring

Division of the COA-TSO. The COA even refused to show the canvass sheets to the petitioners, explaining that the source document was confidential. In the present case, the audit team examined several documents before they arrived at their conclusion that the subject transactions were grossly disadvantageous to the government. These documents were included in the Formal Offer of Evidence submitted to the Sandiganbayan. 39 Petitioner was likewise presented an opportunity to controvert the findings of the audit team during the exit conference held at the end of the audit, but he failed to do so. 40 Further, the fact that only three canvass sheets/price quotations were presented by the audit team does not bolster petitioners claim that his right to due process was violated. To be sure, there is no rule stating that all price canvass sheets must be presented. It is enough that those that are made the basis of comparison be submitted for scrutiny to the parties being audited. Indubitably, these documents were properly submitted and testified to by the principal prosecution witness, Laura Soriano. Moreover, petitioner had ample opportunity to controvert them. Public Bidding Petitioner oscillates between denying that he was responsible for the procurement of the questioned SLTDs, on the one hand; and, on the other, stating that the negotiated purchase was justifiable under the circumstances. On his disavowal of responsibility for the questioned procurement, he claims that the transactions emanated from the Division Office of Digos headed by Jairal. 41 However, in the administrative case 42 filed against petitioner before the DECS, it was established that he "gave the go signal" 43 that prompted the division superintendents to procure the SLTDs through negotiated purchase. This fact is not disputed by petitioner, who quotes the same DECS Decision in stating that his "acts were justifiable under the circumstances then obtaining at that time and for reasons of efficient and prompt distribution of the SLTDs to the high schools." 44 In justifying the negotiated purchase without public bidding, petitioner claims that "any delay in the enrichment of the minds of the public high school students of Davao del Sur is detrimental and antithetical to public service." 45 Although this reasoning is quite laudable, there was nothing presented to substantiate it. Executive Order No. 301 states the general rule that no contract for public services or for furnishing supplies, materials and equipment to the government or any of its branches, agencies or instrumentalities may be renewed or entered into without public bidding. The rule however, is not without exceptions. Specifically, negotiated contracts may be entered into under any of the following circumstances: "a. Whenever the supplies are urgently needed to meet an emergency which may involve the loss of, or danger to, life and/or property; "b. Whenever the supplies are to be used in connection with a project or activity which cannot be delayed without causing detriment to the public service; "c. Whenever the materials are sold by an exclusive distributor or manufacturer who does not have subdealers selling at lower prices and for which no suitable substitute can be obtained elsewhere at more advantageous terms to the government; "d. Whenever the supplies under procurement have been unsuccessfully placed on bid for at least two consecutive times, either due to lack of bidders or the offers received in each instance were exorbitant or non-conforming to specifications;

"e. In cases where it is apparent that the requisition of the needed supplies through negotiated purchase is most advantageous to the government to be determined by the Department Head concerned; "f. Whenever the purchase is made from an agency of the government." 46 National Center for Mental Health v. Commission on Audit 47 upheld the validity of the negotiated contracts for the renovation and the improvement of the National Center for Mental Health. In that case, petitioners were able to show that the long overdue need to renovate the Center "made it compelling to fast track what had been felt to be essential in providing due and proper treatment and care for the centers patients." 48 This justification was likewise accepted in Baylon v. Ombudsman 49 in which we recognized that the purchases were made in response to an emergency brought about by the shortage in the blood supply available to the public. The shortage was a matter recognized and addressed by then Secretary of Health Juan M. Flavier, who attested that "he directed the NKTI [National Kidney and Transplant Institute] to do something about the situation and immediately fast-track the implementation of the Voluntary Blood Donation Program of the government in order to prevent further deaths owing to the lack of blood." 50 Unfortunately for petitioner, there was no showing of any immediate and compelling justification for dispensing with the requirement of public bidding. We cannot accept his unsubstantiated reasoning that a public bidding would unnecessarily delay the purchase of the SLTDs. Not only would he have to prove that indeed there would be a delay but, more important, he would have to show how a public bidding would be detrimental and antithetical to public service. As the COA Report aptly states, the law on public bidding is not an empty formality. It aims to secure the lowest possible price and obtain the best bargain for the government. It is based on the principle that under ordinary circumstances, fair competition in the market tends to lower prices and eliminate favoritism. 51 In this case, the DECS Division Office of Davao del Sur failed to conduct public bidding on the subject transactions. The procurement of laboratory tools and devices was consummated with only the following documents to compensate for the absence of a public bidding: "1.13.a Price lists furnished by the Supply Coordination Office 1.13.b. Price lists furnished by the Procurement Services of the Department of Budget and Management 1.13.c. Price lists of Esteem Enterprises" 52 The COA Report states that the Division Office merely relied on the above documents as basis for concluding that the prices offered by DImplacable Enterprises and Jovens Trading were reasonable. But as found by the COA, reliance on the foregoing supporting documents was completely without merit on the following grounds: "a. The Supply Coordination Office was already dissolved or abolished at the time when the transactions were consummated, thus, it is illogical for the management to consider the price lists furnished by the Supply Coordination Office. "b. The indorsement letter made by the Procurement Services of the Department of Budget and Management containing the price lists specifically mentions Griffin and George brands, made in England. However, the management did not procure these brands of [SLTDs].

"c. The price lists furnished by the Esteem Enterprises does not deserve the scantest consideration, since there is no law or regulation specifically mentioning that the price lists of the Esteem Enterprises will be used as basis for buying [SLTDs]." 53 Granting arguendo that petitioner did not have a hand in the procurement and that the transactions emanated from the Division Office of Davao del Sur, we still find him liable as the final approving authority. In fact, Exhibit "B-2" -- Purchase Order No. 90-024, amounting to P231,012 and dated December 17, 1990 -- was recommended by Jairal and approved by petitioner. 54 This exhibit was part of the evidence adduced in the Sandiganbayan to prove that the purchase of the SLTDs was consummated and duly paid by the DECS without any proof of public bidding. Although this Court has previously ruled 55 that all heads of offices have to rely to a reasonable extent on their subordinates and on the good faith of those who prepare bids, purchase supplies or enter into negotiations, it is not unreasonable to expect petitioner to exercise the necessary diligence in making sure at the very least, that the proper formalities in the questioned transaction were observed -- that a public bidding was conducted. This step does not entail delving into intricate details of product quality, complete delivery or fair and accurate pricing. Unlike other minute requirements in government procurement, compliance or non-compliance with the rules on public bidding is readily apparent; and the approving authority can easily call the attention of the subordinates concerned. To rule otherwise would be to render meaningless the accountability of high-ranking public officials and to reduce their approving authority to nothing more than a mere rubber stamp. The process of approval is not a ministerial duty of approving authorities to sign every document that comes across their desks, and then point to their subordinates as the parties responsible if something goes awry. Suspension of Purchases Obviously working against petitioner is DECS Order No. 100 dated September 3, 1990 which states thus: "In view of the Governments call for economy measures coupled with the deficiency in allotments intended for the payment of salary standardization, retirement benefits, bonus and other priority items, the procurement of reference and supplementary materials, tools and devices equipment, furniture, including land acquisition and land improvement shall be suspended for CY 1990. However, the following items shall be exempted from the said suspension: a) textbooks published by the Instructional Materials Corporation and its commercial edition; b) elementary school desks and tablet arm chairs[.]" As the COA Report succinctly states, the Administrative Order is explicit in its provisions that tools and devices were among the items whose procurement was suspended by the DECS for the year 1990. Petitioner claims that in the administrative case against him, there was no mention of a violation of DECS Order No. 100. 56 He alleges that the purchases of SLTDs by the division superintendents were entered into and perfected on July 1, 1990; that is, more than two (2) months before the issuance of DECS Order No. 100. He also alleged that the Sub-Allotment Advice (SAA) to the DECS Regional Office No. XI in the amount of P9.36M -- out of which P603,265.00 was used for the procurement of the questioned SLTDs -- had been released by the DECS Central Office in August 1990, a month before the issuance of DECS Order No. 100.

The Court notes that these arguments are mere assertions bereft of any proof. There was no evidence presented to prove that the SAA was issued prior to the effectivity of DECS Order No. 100. On the other hand, the COA Report states that the DECS Division of Davao del Sur received the following Letters of Advice of Allotments (LAA): 57 "LAA NO. AMOUNT DATE OF LAA DO CO471-774-90 P141,956.00 October 24, 1990 DO-CO471-797-90 P161,309.00 November 16, 1990 DO-CO471-1007-90 P300,000.00 December 14, 1990" The foregoing LAAs were attached as annexes 58 to the COA Report and were presented during trial in the Sandiganbayan. 59 Also, Schools Division Superintendent Jairal had sent a letter to petitioner, requesting favorable consideration of a forthcoming release of funding for the different barangay and municipal high schools. The letter was dated October 16, 1990, 60 and was made well within the effectivity of the DECS Order. In that letter, Jairal mentioned the receipt by his office of DECS Order No. 100, albeit wrongly interpreting it as suspending only the purchases of reference books, supplementary readers, and so on, but allegedly silent on the purchase of laboratory supplies and materials. 61 Finally, the SLTDs were purchased within the covered period of DECS Order No. 100, as evidenced by the following relevant documents adduced by the COA audit team, among others: 1) Disbursement Voucher dated November 27, 1990 for the payment of various laboratory supplies and materials by DECS, Davao del Sur in the amount of P303,29.40 62 2) Official Receipt No. 455 dated January 7, 1991 amounting to P68,424.00 issued by Jovens Trading 63 3) Report of Inspection dated November 26, 1990 signed by Jacinta Villareal and Felicisimo Canoy 64 4) Sales Invoice No. 044 dated November 26, 1990 issued by Jovens Trading in favor of DECS amounting to P303,259.40 65 5) Certificate of Acceptance dated November 27, 1990 signed by Felicismo Canoy 66 6) Purchase Order No. 90-021 in favor of Jovens Trading dated November 26, 1990 recommended for approval by Ajatil Jairal 67 7) Official Receipt No. 92356 dated January 7, 1991 issued by DImplacable Enterprises amounting to P231,012.00 68 8) Purchase Order No. 90-024 dated December 17, 1990 recommended for approval by Ajatil Jairal and approved Director Venancio Nava amounting to P231,012.00." 69 The confluence of the foregoing circumstances indubitably establishes that petitioner indeed wantonly disregarded regulations. Additionally, DECS Order No. 100 negates his claim that the negotiated transaction -- done instead of a public bidding -- was justified. If that Order suspended the acquisition of tools and devices, then there was all the more reason for making purchases by

public bidding. Since the buying of tools and devices was specifically suspended, petitioner cannot argue that the purchases were done in the interest of public service. Proof of Guilt To sustain a conviction under Section 3(g) of Republic Act No. 3019, it must be clearly proven that 1) the accused is a public officer; 2) the public officer entered into a contract or transaction on behalf of the government; and 3) the contract or transaction was grossly and manifestly disadvantageous to the government. 70 From the foregoing, it is clear that the Sandiganbayan did not err in ruling that the evidence presented warranted a verdict of conviction. Petitioner is a public officer, who approved the transactions on behalf of the government, which thereby suffered a substantial loss. The discrepancy between the prices of the SLTDs purchased by the DECS and the samples purchased by the COA audit team clearly established such undue injury. Indeed, the discrepancy was grossly and manifestly disadvantageous to the government. We must emphasize however, that the lack of a public bidding and the violation of an administrative order do not by themselves satisfy the third element of Republic Act No. 3019, Section 3(g); namely, that the contract or transaction entered into was manifestly and grossly disadvantageous to the government, as seems to be stated in the Resolution of the Sandiganbayan denying the Motion for Reconsideration. 71 Lack of public bidding alone does not result in a manifest and gross disadvantage. Indeed, the absence of a public bidding may mean that the government was not able to secure the lowest bargain in its favor and may open the door to graft and corruption. Nevertheless, the law requires that the disadvantage must be manifest and gross. Penal laws are strictly construed against the government. 72 If the accused is to be sent to jail, it must be because there is solid evidence to pin that person down, not because of the omission of a procedural matter alone. Indeed, all the elements of a violation of Section 3(g) of Republic Act No. 3019 should be established to prove the culpability of the accused. In this case, there is a clear showing that all the elements of the offense are present. Thus, there can be no other conclusion other than conviction. We note, however, that petitioner was sentenced to suffer the penalty of six (6) years and one (1) day as minimum to twelve (12) years and one (1) day as maximum. Under Section 9 of Republic Act 3019, petitioner should be punished with imprisonment of not less than six (6) years and one (1) month nor more than fifteen years. Thus, we adjust the minimum penalty imposed on petitioner in accordance with the law. WHEREFORE, the Petition is DENIED. The assailed Decision and Resolution are AFFIRMED, with the MODIFICATION that the minimum sentence imposed shall be six (6) years and one (1) month, not six (6) years and one (1) day. Costs against petitioner. SO ORDERED. THIRD DIVISION

OFELIA C. CAUNAN, Petitioner,

- versus -

PEOPLE OF THE PHILIPPINES and SANDIGANBAYAN, Respondents. X----------------------------X JOEY P. MARQUEZ, Petitioner,

- versus -

THE SANDIGANBAYAN-FOURTH DIVISION and PEOPLE OF THE PHILIPPINES, Respondents.

G.R. Nos. 181999 & 182001-04

G.R. Nos. 182020-24

Present:

YNARES-SANTIAGO, J., Chairperson,

CHICO-NAZARIO, VELASCO, JR., NACHURA, and PERALTA, JJ.

Promulgated:

September 2, 2009

x------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:

At bar are consolidated petitions for review on certiorari under Rule 45 of the Rules of Court which assail the Decision[1] dated August 30, 2007 and Resolution[2] dated March 10, 2008 of the Sandiganbayan in Criminal Case Nos. 27944, 27946, 27952, 27953, & 27954, finding petitioners Joey P. Marquez (Marquez) and Ofelia C. Caunan (Caunan) guilty of violation of Section 3(g) of Republic Act (R.A.) No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.

Marquez and Caunan, along with four (4) other local government officials of Paraaque City[3] and private individual Antonio Razo (Razo), were charged under five (5) Informations, to wit:

The Information in Criminal Case No. 27944 states:

That on January 11, 1996 or thereabout, in Paraaque City, Philippines, and within the jurisdiction of this Honorable Court, accused Public Officers JOEY P. MARQUEZ, a high ranking public official, being the City Mayor of Paraaque City and Chairman, Committee on Awards, together with the members of the aforesaid Committee, namely: SILVESTRE DE LEON, being then the City Treasurer, MARILOU TANAEL, the City Accountant (SG 26), FLOCERFIDA M. BABIDA, the City Budget Officer (SG 26), OFELIA C. CAUNAN, the OIC General Services Office (SG 26) and AILYN ROMEA, the Head Staff, Office of the Mayor (SG 26), acting as such and committing the offense in relation to their official duties and taking advantage of their official positions, conspiring, confederating and mutually helping one another and with the accused private individual ANTONIO RAZO, the owner and proprietor of ZARO Trading, a business entity registered with the Bureau of Domestic Trade and Industry, with evident bad faith and manifest partiality (or at the very least, with gross inexcusable negligence), did then and there willfully, unlawfully and criminally enter into manifestly and grossly disadvantageous transactions, through personal canvass, with said ZARO Trading, for the purchase of 5,998 pieces of walis ting-ting at P25 per piece as per Disbursement Voucher No. 101-96-12-8629 in the total amount of ONE HUNDRED FORTY-NINE THOUSAND NINE HUNDRED FIFTY PESOS (P149,950.00), without complying with the Commission on Audit (COA) Rules and Regulations and other requirements on Procurement and Public Bidding, and which transactions were clearly grossly overpriced as the actual cost per piece of the walis ting-ting was only P11.00 as found by the Commission on Audit (COA) in its Decision No. 2003-079 dated May 13, 2003 with a difference, therefore, of P14.00 per piece or a total overpriced amount of EIGHTY THREE THOUSAND NINE HUNDRED SEVENTY TWO PESOS (P83,972.00), thus, causing damage and prejudice to the government in the aforesaid sum.

The Information in Criminal Case No. 27946 states:

That on June 30, 1997 or thereabout, in Paraaque City, Philippines and within the jurisdiction of this Honorable Court, accused Public Officers JOEY P. MARQUEZ, a high ranking public official, being the City Mayor of Paraaque City and Chairman, Committee on Awards, together with members of the aforesaid committee, namely: SILVESTRE DE LEON, being then the City Treasurer, MARILOU TANAEL, the City Accountant (SG 26), FLOCERFIDA M. BABIDA, the City Budget officer (SG 26), OFELIA C. CAUNAN, the OIC General Services Office (SG 26) and AILYN ROMEA, the Head Staff, Office of the Mayor (SG 26), acting as such and committing the offense in relation to their official duties and taking advantage of their official positions, conspiring, confederating and mutually helping one another and with accused private individual ANTONIO RAZO, the owner and proprietor of ZAR[O] Trading, a business entity registered with the Bureau of Domestic Trade and Industry, with evident bad faith and manifest partiality (or at the very least, with gross inexcusable negligence), did then and there willfully, unlawfully and criminally enter into manifestly and grossly disadvantageous transactions, through personal canvass, with ZAR[O] Trading for the purchase of 23,334 pieces of walis ting-ting at P15.00 per piece as per Disbursement Voucher No. 101-98-02-447 in the total amount of THREE HUNDRED FIFTY THOUSAND TEN PESOS (P350,010.00), without complying with the Commission on Audit (COA) Rules and Regulations and other requirements on Procurement and Public Bidding, and which transactions were clearly grossly overpriced as the actual cost per piece of the walis ting-ting was only P11.00 as found by the Commission on Audit (COA) in its Decision No. 2003-079 dated May 13, 2003 with a difference, therefore, of P4.00 per piece or a total overpriced amount of NINETY THREE THOUSAND THREE HUNDRED THIRTY SIX PESOS (P93,336.00), thus causing damage and prejudice to the government in the aforesaid sum.

The Information in Criminal Case No. 27952 states:

That [in] September 1997, or thereabout, in Paraaque City, Philippines and within the jurisdiction of this Honorable Court, accused Public Officers JOEY P. MARQUEZ, a high ranking public official, being the City Mayor of Paraaque City and Chairman, Committee on Awards, together with members of the aforesaid committee, namely: SILVESTRE DE LEON, being then the City Treasurer, MARILOU TANAEL, the City Accountant (SG 26), FLOCERFIDA M. BABIDA, the City Budget officer (SG 26), OFELIA C. CAUNAN, the OIC General Services Office (SG 26) and AILYN ROMEA, the Head Staff, Office of the Mayor (SG 26), acting as such and committing the offense in relation to their official duties and taking advantage of their official positions, conspiring, confederating and mutually helping one another and with accused private individual ANTONIO RAZO, the owner and proprietor of ZAR[O] Trading, a business entity registered with the Bureau of Domestic Trade and Industry, with evident bad faith and manifest partiality (or at the very least, with gross inexcusable negligence), did then and there willfully, unlawfully and criminally enter into manifestly and grossly disadvantageous transactions, through personal canvass, with ZAR[O] Trading for the purchase of 8,000 pieces of walis ting-ting at P15.00 per piece as per Disbursement Voucher No. 101-98-02-561 in the total amount of ONE HUNDRED TWENTY THOUSAND PESOS (P120,000.00), without complying with the Commission on Audit (COA) Rules and Regulations and other requirements on Procurement and Public Bidding, and which transactions were clearly grossly overpriced as the actual cost per piece of the walis ting-ting was only P11.00 as found by the Commission on Audit (COA) in its Decision No. 2003-079 dated May 13, 2003 with a difference, therefore, of P4.00 per piece or a total overpriced amount of THIRTY TWO THOUSAND PESOS (P32,000.00), thus causing damage and prejudice to the government in the aforesaid sum.

The Information in Criminal Case No. 27953 states:

That during the period from February 11, 1997 to February 20, 1997, or thereabout, in Paraaque City, Philippines and within the jurisdiction of this Honorable Court, accused Public Officers JOEY P. MARQUEZ, a high ranking public official, being the City Mayor of Paraaque City and Chairman, Committee on Awards, together with members of the aforesaid committee, namely: SILVESTRE DE LEON, being then the City Treasurer, MARILOU TANAEL, the City Accountant (SG 26), FLOCERFIDA M. BABIDA, the City Budget officer (SG 26), OFELIA C. CAUNAN, the OIC General Services office (SG 26) and AILYN ROMEA, the Head Staff, Office of the Mayor (SG 26), acting as such and committing the offense in relation to their official duties and taking advance of their official positions, conspiring, confederating and mutually helping one another and with accused private individual ANTONIO RAZO, the owner and proprietor of ZAR[O] Trading, a business entity registered with the Bureau of Domestic Trade and Industry, with evident bad faith and manifest partiality (or at the very least, with gross inexcusable negligence), did then and there willfully, unlawfully and criminally enter into manifestly and grossly disadvantageous transactions, through personal canvass, with ZAR[O] Trading for the purchase of 10,100 pieces of walis ting-ting on several occasions at P25.00 per piece without complying with the Commission on Audit (COA) Rules and Regulations and other requirements on procurement and Public Bidding and which purchases are hereunder enumerated as follows:

Date of Transaction

Voucher No.

Amount

Quantity February 20, 1997 101-97-04-1755 P 3,000.00

120 pcs. February 12, 1997 101-97-04-1756 P100,000.00 4,000 pcs. February 11, 1997 101-97-04-1759 P149,500.00 5,980 pcs.

in the total amount of TWO HUNDRED FIFTY TWO THOUSAND PESOS (P252,000.00), and which transactions were clearly overpriced as the actual cost per piece of the walis ting-ting was only P11.00 as found by the Commission on Audit (COA) in its Decision No. 2003-079 dated May 13, 2003 with a difference, therefore, of P14.00 per piece or a total overpriced amount of ONE HUNDRED FORTY ONE THOUSAND FOUR HUNDRED PESOS (P141,400.00), thus, causing damage and prejudice to the government in the aforesaid sum.

The Information in Criminal Case No. 27954 states:

That during the period from October 15, 1996 to October 18, 1996 or thereabout, in Paraaque City, Philippines and within the jurisdiction of this Honorable Court, accused Public Officers JOEY P. MARQUEZ, a high ranking public official, being the City Mayor of Paraaque City and Chairman, Committee on Awards, together with members of the aforesaid committee, namely: SILVESTRE DE LEON, being then the City Treasurer, MARILOU TANAEL, the City Accountant (SG 26), FLOCERFIDA M. BABIDA, the City Budget officer (SG 26), OFELIA C. CAUNAN, the OIC General Services Office (SG 26) and AILYN ROMEA, the Head Staff, Office of the Mayor (SG 26), acting as such and committing the offense in relation to their official duties and taking advantage of their official positions, conspiring, confederating and mutually helping one another and with accused private individual ANTONIO RAZO, the owner and proprietor of ZAR[O] Trading, a business entity registered with the Bureau of Domestic Trade and Industry, with evident bad faith and manifest partiality (or at the very least, with gross inexcusable negligence), did then and there willfully, unlawfully and criminally enter into manifestly and grossly disadvantageous transactions, through personal canvass, with ZAR[O] Trading for the purchase of 8,000 pieces of walis ting-ting on several occasions at P25.00 per piece without complying with the Commission on Audit (COA) Rules and Regulations and other requirements on procurement and Public Bidding and which purchases are hereunder enumerated as follows:

Date of Transaction Voucher Number Amount Quantity

October 15, 1996 101-96-11-7604 P 100,000.00

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

in the total amount of TWO HUNDRED THOUSAND PESOS (P200,000.00), and which transactions were clearly grossly overpriced as the actual cost per piece of the walis ting-ting was only P11.00 as found by the Commission on Audit (COA) in its Decision No. 2003-079 dated May 13, 2003 with a difference, therefore, of P14.00 per piece or a total overpriced amount of ONE HUNDRED TWELVE THOUSAND PESOS (P112,000.00), thus, causing damage and prejudice to the government in the aforesaid sum.[4]

The five (5) Informations were filed based on the findings of the Commission on Audit (COA) Special Audit Team that there was overpricing in certain purchase transactions of Paraaque City. In March 1999, a Special Audit Team composed of Fatima Bermudez (Bermudez), Carolina Supsup, Gerry Estrada, and Yolando Atienza, by virtue of Local Government Audit Office Assignment Order No. 99-002, audited selected transactions of Paraaque City for the calendar years 1996 to 1998, including the walis tingting purchases.

In connection with the walis tingting purchases audit, the audit team gathered the following evidence:

1. Documents furnished by the Office of the City Mayor of Paraaque City upon request of the audit team; 2. Sample walis tingting with handle likewise submitted by the Office of the City Mayor of Paraaque City; 3. Samples of walis tingting without handle actually utilized by the street sweepers upon ocular inspection of the audit team; 4. Survey forms accomplished by the street sweepers containing questions on the walis tingting; 5. Evaluation by the Technical Services Department[5] of the reasonableness of the walis tingting procurement compared to current prices thereof;

6. A separate canvass by the audit team on the prices of the walis tingting, including purchases thereof at various merchandising stores;[6] and 7. Documents on the conduct and process of procurement of walis tingting by the neighboring city of Las Pias.

Parenthetically, to ascertain the prevailing price of walis tingting for the years 1996 to 1998, the audit team made a canvass of the purchase prices of the different merchandise dealers of Paraaque City. All, however, were reluctant to provide the team with signed quotations of purchase prices for walis tingting. In addition, the audit team attempted to purchase walis tingting from the named suppliers of Paraaque City. Curiously, when the audit team went to the listed addresses of the suppliers, these were occupied by other business establishments. Thereafter, the audit team located, and purchased from, a lone supplier that sold walis tingting.

As previously adverted to, the audit team made a report which contained the following findings:

1.

The purchase of walis tingting was undertaken without public bidding;

2. The purchase of walis tingting was divided into several purchase orders and requests to evade the requirement of public bidding and instead avail of personal canvass as a mode of procurement; 3. The purchase of walis tingting through personal canvass was attended with irregularities; and 4. There was glaring overpricing in the purchase transactions.

Consequently, the COA issued Notices of Disallowance Nos. 01-001-101 (96) to 01-006-101 (96), 01-001-101 (97) to 01-011-101 (97), and 01-001-101 (98) to 01-004-101 (98) covering the overpriced amount of P1,302,878.00 for the purchases of 142,612 walis tingting, with or without handle, by Paraaque City in the years 1996-1998.[7]

Objecting to the disallowances, petitioners Marquez and Caunan, along with the other concerned local government officials of Paraaque City, filed a request for reconsideration with the audit team which the latter subsequently denied in a letter to petitioner Marquez.

Aggrieved, petitioners and the other accused appealed to the COA which eventually denied the appeal. Surprisingly, on motion for reconsideration, the COA excluded petitioner Marquez from liability for the disallowances based on our rulings in Arias v. Sandiganbayan[8] and Magsuci v. Sandiganbayan.[9]

On the other litigation front, the criminal aspect subject of this appeal, the Ombudsman found probable cause to indict petitioners and the other local government officials of Paraaque City for violation of Section 3(g) of R.A. No. 3019. Consequently, the five (5) Informations against petitioners, et al. were filed before the Sandiganbayan.

After trial and a flurry of pleadings, the Sandiganbayan rendered judgment finding petitioners Caunan and Marquez, along with Silvestre de Leon and Marilou Tanael, guilty of violating Section 3(g) of R.A. No. 3019. As for accused Flocerfida Babida, Ailyn Romea and private individual Razo, the Sandiganbayan acquitted them for lack of sufficient evidence to hold them guilty beyond reasonable doubt of the offenses charged. The Sandiganbayan ruled as follows:

1. The prosecution evidence, specifically the testimony of Bermudez and the Special Audit Teams report, did not constitute hearsay evidence, considering that all the prosecution witnesses testified on matters within their personal knowledge; 2. The defense failed to question, and timely object to, the admissibility of documentary evidence, such as the Las Pias City documents and the Department of Budget and Management (DBM) price listing downloaded from the Internet, which were certified true copies and not the originals of the respective documents; 3. The Bids and Awards Committee was not properly constituted; the accused did not abide by the prohibition against splitting of orders; and Paraaque City had not been afforded the best possible advantage for the most objective price in the purchase of walis tingting for failure to observe the required public bidding; 4. The contracts for procurement of walis tingting in Paraaque City for the years 19961998 were awarded to pre-selected suppliers; and 5. On the whole, the transactions undertaken were manifestly and grossly disadvantageous to the government.

Expectedly, the remaining accused, Caunan, Marquez and Tanael, moved for reconsideration of the Sandiganbayan decision. Caunan and Tanael, represented by the same counsel, collectively filed a Motion for Reconsideration (with Written Notice of Death of Accused Silvestre S. de Leon). Marquez filed several motions,[10] including a separate Motion for Reconsideration.

All the motions filed by Marquez, as well as Caunans motion, were denied by the Sandiganbayan. However, with respect to Tanael, the Sandiganbayan found reason to reconsider her conviction.

Hence, these separate appeals by petitioners Marquez and Caunan.

Petitioner Caunan posits the following issues:

1.

[WHETHER] THE PROSECUTIONS PROOF OF OVERPRICING [IS] HEARSAY .

2. [WHETHER THE] RESPONDENT SANDIGANBAYAN [ERRED] IN ADMITTING WITNESS FATIMA V. BERMUDEZ TESTIMONY DESPITE THE FACT THAT ITS SOURCES ARE THEMSELVES ADMITTEDLY AND PATENTLY HEARSAY .

3. [WHETHER THE] RESPONDENT SANDIGANBAYAN GRAVELY [ERRED] IN APPLYING AN EXCEPTION TO THE HEARSAY RULE[.] UNDER THIS EXCEPTION, PUBLIC DOCUMENTS CONSISTING OF ENTRIES IN PUBLIC RECORDS, ETC., x x x ARE PRIMA FACIE EVIDENCE OF THE FACTS STATED THEREIN.

4. CONSEQUENTLY, [WHETHER] RESPONDENT SANDIGANBAYAN GRAVELY ERRED IN NOT ACQUITTING [CAUNAN].[11]

For his part, petitioner Marquez raises the following:

1. WHETHER [MARQUEZ] MUST BE ACQUITTED FROM THE SUBJECT CRIMINAL CASES BASED ON THE DOCTRINES LAID DOWN IN THE ARIAS AND MAGSUCI CASES EARLIER DECIDED BY THIS HONORABLE COURT AND THE PERTINENT PROVISIONS OF THE LOCAL GOVERNMENT CODE AND OTHER EXISTING REGULATIONS[;]

2. WHETHER [MARQUEZ] MUST BE ACQUITTED FROM THE SUBJECT CRIMINAL CASES SINCE HE WAS ALREADY EXCLUDED FROM LIABILITY BY THE COMMISSION ON AUDIT[;]

3. WHETHER THE ACQUITTAL OF CO-ACCUSED 1) SUPPLIER ANTONIO RAZO WHO WAS THE OTHER PARTY TO, AND RECEIVED THE TOTAL AMOUNT OF, THE QUESTIONED CONTRACTS OR TRANSACTIONS, 2) CITY ACCOUNTANT MARILOU TANAEL WHO PRE-AUDITED THE CLAIMS AND SIGNED THE VOUCHERS, 3) CITY BUDGET OFFICER FLOCERFIDA M. BABIDA, AND 4) HEAD OF STAFF AILYN ROMEA CASTS A BIG CLOUD OF DOUBT ON THE FINDING OF [MARQUEZS] GUILT BY THE SANDIGANBAYAN FOURTH DIVISION[;]

4. WHETHER [MARQUEZ] CAN BE CONVICTED ON PLAIN HEARSAY, IF NOT DUBIOUS EVIDENCE OF OVERPRICING OR ON MERE CIRCUMSTANTIAL EVIDENCE THAT DO NOT AMOUNT TO PROOF OF GUILT BEYOND REASONABLE DOUBT IN THE SUBJECT CRIMINAL CASES[;]

5. WHETHER THE ALLEGED OVERPRICING WHICH WAS THE BASIS FOR CLAIMING THAT THE CONTRACTS OR TRANSACTIONS ENTERED INTO BY [MARQUEZ] IN BEHALF OF PARAAQUE CITY WERE MANIFESTLY AND GROSSLY DISADVANTAGEOUS TO THE GOVERNMENT WAS ASCERTAINED OR DETERMINED WITH REASONABLE CERTAINTY IN ACCORDANCE WITH THE REQUIREMENTS OR PROCEDURES PRESCRIBED UNDER COA MEMORANDUM NO. 97-012 DATED MARCH 31, 1997[;]

6. WHETHER THE QUANTUM OF PROSECUTION EVIDENCE HAS OVERCOME THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE WHICH [MARQUEZ] ENJOYS IN THE SUBJECT CRIMINAL CASES[;]

7. WHETHER THE RIGHT OF [MARQUEZ] TO DUE PROCESS WAS VIOLATED WHEN THE CHAIRMAN (JUSTICE GREGORY ONG) OF THE SANDIGANBAYAN FOURTH DIVISION REFUSED TO INHIBIT DESPITE SERIOUS CONFLICT OF INTEREST[;]

8. WHETHER [MARQUEZ] IS ENTITLED TO THE REOPENING OF THE SUBJECT CRIMINAL CASES[;]

9. WHETHER THE RIGHT OF [MARQUEZ] TO BE INFORMED OF THE NATURE OF THE ACCUSATION AGAINST HIM WAS VIOLATED WHEN INSTEAD OF ONLY ONE OFFENSE, SEVERAL INFORMATION HAD BEEN FILED IN THE TRIAL COURT ON THE THEORY OF OVERPRICING IN THE PROCUREMENT OF BROOMSTICKS (WALIS TINGTING) BY WAY OF SPLITTING CONTRACTS OR PURCHASE ORDERS[; and]

10. WHETHER [MARQUEZ] IS ENTITLED TO NEW TRIAL SINCE HIS RIGHT TO AN IMPARTIAL TRIAL WAS VIOLATED IN THE SUBJECT CRIMINAL CASES WHEN THE CHAIRMAN (JUSTICE GREGORY ONG) REFUSED TO INHIBIT DESPITE THE EXISTENCE OF SERIOUS CONFLICT OF INTEREST RAISED BY THE FORMER BEFORE THE JUDGMENT BECAME FINAL.[12]

In a Resolution dated February 23, 2009, we directed the consolidation of these cases. Thus, we impale petitioners issues for our resolution:

1. First and foremost, whether the Sandiganbayan erred in finding petitioners guilty of violation of Section 3(g) of R.A. No. 3019.

2. Whether the testimony of Bermudez and the report of the Special Audit Team constitute hearsay and are, therefore, inadmissible in evidence against petitioners. 3. Whether petitioner Marquez should be excluded from liability based on our rulings in Arias v. Sandiganbayan[13] and Magsuci v. Sandiganbayan.[14]

Both petitioners insist that the fact of overpricing, upon which the charge against them of graft and corruption is based, had not been established by the quantum of evidence required in criminal cases, i.e., proof beyond reasonable doubt.[15] Petitioners maintain that the evidence of overpricing, consisting of the report of the Special Audit Team and the testimony thereon of Bermudez, constitutes hearsay and, as such, is inadmissible against them. In addition, petitioner Marquez points out that the finding of overpricing was not shown to a reliable degree of certainty as required by COA Memorandum No. 97-012 dated March 31, 1997.[16] In all, petitioners asseverate that, as the overpricing was not sufficiently established, necessarily, the last criminal element of Section 3(g) of R.A. No. 3019 a contract or transaction grossly and manifestly disadvantageous to the government was not proven.

Section 3(g) of R.A. No. 3019 provides:

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

xxxx

(g) Entering on behalf of the Government, into any contract or transaction, manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby.

For a charge under Section 3(g) to prosper, the following elements must be present: (1) that the accused is a public officer; (2) that he entered into a contract or transaction on behalf of the government; and (3) that such contract or transaction is grossly and manifestly disadvantageous to the government.[17]

The presence of the first two elements of the crime is not disputed. Hence, the threshold question we should resolve is whether the walis tingting purchase contracts were grossly and manifestly injurious or disadvantageous to the government.

We agree with petitioners that the fact of overpricing is embedded in the third criminal element of Section 3 (g) of R.A. No. 3019. Given the factual milieu of this case, the subject contracts would be grossly and manifestly disadvantageous to the government if characterized by an overpriced procurement. However, the gross and manifest disadvantage to the government was not sufficiently shown because the conclusion of overpricing was erroneous since it was not also adequately proven. Thus, we grant the petitions.

In criminal cases, to justify a conviction, the culpability of an accused must be established by proof beyond a reasonable doubt.[18] The burden of proof is on the prosecution, as the accused enjoys a constitutionally enshrined disputable presumption of innocence.[19] The court, in ascertaining the guilt of an accused, must, after having marshaled the facts and circumstances, reach a moral certainty as to the accuseds guilt. Moral certainty is that degree of proof which produces conviction in an unprejudiced mind.[20] Otherwise, where there is reasonable doubt, the accused must be acquitted.

In finding that the walis tingting purchase contracts were grossly and manifestly disadvantageous to the government, the Sandiganbayan relied on the COAs finding of overpricing which was, in turn, based on the special audit teams report. The audit teams conclusion on the standard price of a walis tingting was pegged on the basis of the following documentary and object evidence: (1) samples of walis tingting without handle actually used by the street sweepers; (2) survey forms on the walis tingting accomplished by the street sweepers; (3) invoices from six merchandising stores where the audit team purchased walis tingting; (4) price listing of the DBM Procurement Service; and (5) documents relative to the walis tingting purchases of Las Pias City. These documents were then compared with the documents furnished by petitioners and the other accused relative to Paraaque Citys walis tingting transactions.

Notably, however, and this the petitioners have consistently pointed out, the evidence of the prosecution did not include a signed price quotation from the walis tingting suppliers of Paraaque City. In fact, even the walis tingting furnished the audit team by petitioners and the other accused was different from the walis tingting actually utilized by the Paraaque City street sweepers at the time of ocular inspection by the audit team. At the barest minimum, the evidence presented by the prosecution, in order to substantiate the allegation of overpricing, should have been identical to the walis tingting purchased in 1996-1998. Only then could it be concluded that the walis tingting purchases were disadvantageous to the government because only then could a determination have been made to show that the disadvantage was so manifest and gross as to make a public official liable under Section 3(g) of R.A. No. 3019.

On the issue of hearsay, the Sandiganbayan hastily shot down petitioners arguments thereon, in this wise:

We find no application of the hearsay rule here. In fact, all the witnesses in this case testified on matters within their personal knowledge. The prosecutions principal witness, Ms. Bermudez, was a State Auditor and the Assistant Division Chief of the Local Government Audit Office who was tasked to head a special audit team to audit selected transactions of Paraaque City. The report which she identified and testified on [was] made by [the] Special Audit Team she herself headed. The disbursement vouchers, purchase orders, purchase requests and other

documents constituting the supporting papers of the teams report were public documents requested from the City Auditor of Paraaque and from the accused Mayor Marquez. Such documents were submitted to the Special Audit Team for the specific purpose of reviewing them. The documents were not executed by Ms. Bermudez or by any member of the Special Audit Team for the obvious reason that, as auditors, they are only reviewing acts of others. The Special Audit Teams official task was to review the documents of the walis tingting transactions. In the process of [the] review, they found many irregularities in the documentations violations of the Local Government Code and pertinent COA rules and regulations. They found that the transactions were grossly overpriced. The findings of the team were consolidated in a report. The same report was the basis of Ms. Bermudezs testimony. x x x.[21]

The reasoning of the Sandiganbayan is specious and off tangent. The audit team reached a conclusion of gross overpricing based on documents which, at best, would merely indicate the present market price of walis tingting of a different specification, purchased from a non-supplier of Paraaque City, and the price of walis tingting purchases in Las Pias City. Effectively, the prosecution was unable to demonstrate the requisite burden of proof, i.e., proof beyond reasonable doubt, in order to overcome the presumption of innocence in favor of petitioners.

As pointed out by petitioner Caunan, not all of the contents of the audit teams report constituted hearsay. Indeed, as declared by the Sandiganbayan, Bermudez could very well testify thereon since the conclusions reached therein were made by her and her team. However, these conclusions were based on incompetent evidence. Most obvious would be the market price of walis tingting in Las Pias City which was used as proof of overpricing in Paraaque City. The prosecution should have presented evidence of the actual price of the particular walis tingting purchased by petitioners and the other accused at the time of the audited transaction or, at the least, an approximation thereof. Failing in these, there is no basis to declare that there was a glaring overprice resulting in gross and manifest disadvantage to the government.

We are not unmindful of the fact that petitioners failed to conduct the requisite public bidding for the questioned procurements. However, the lack of public bidding alone does not automatically equate to a manifest and gross disadvantage to the government. As we had occasion to declare in Nava v. Sandiganbayan,[22] the absence of a public bidding may mean that the government was not able to secure the lowest bargain in its favor and may open the door to graft and corruption. However, this does not satisfy the third element of the offense charged, because the law requires that the disadvantage must be manifest and gross. After all, penal laws are strictly construed against the government.

With the foregoing disquisition, we find no necessity to rule on the applicability of our rulings in Arias and Magsuci to petitioner Marquez. Nonetheless, we wish to reiterate herein the doctrines laid down in those cases. We call specific attention to the sweeping conclusion made by the Sandiganbayan that a conspiracy existed among petitioners and the other accused, most of whom were acquitted, particularly private individual Razo, the proprietor of Zaro Trading.

Our ruling in Magsuci, citing our holding in Arias, should be instructive, viz.:

The Sandiganbayan predicated its conviction of [Magsuci] on its finding of conspiracy among Magsuci, Ancla and now deceased Enriquez.

There is conspiracy when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Conspiracy is not presumed. Like the physical acts constituting the crime itself, the elements of conspiracy must be proven beyond reasonable doubt. While conspiracy need not be established by direct evidence, for it may be inferred from the conduct of the accused before, during and after the commission of the crime, all taken together, however, the evidence therefore must reasonably be strong enough to show a community of criminal design.

xxxx

Fairly evident, however, is the fact that the actions taken by Magsuci involved the very functions he had to discharge in the performance of his official duties. There has been no intimation at all that he had foreknowledge of any irregularity committed by either or both Engr. Enriquez and Ancla. Petitioner might have indeed been lax and administratively remiss in placing too much reliance on the official reports submitted by his subordinate (Engineer Enriquez), but for conspiracy to exist, it is essential that there must be a conscious design to commit an offense. Conspiracy is not the product of negligence but of intentionality on the part of cohorts.

In Arias v. Sandiganbayan, this Court, aware of the dire consequences that a different rule could bring, has aptly concluded:

We would be setting a bad precedent if a head of office plagued by all too common problemsdishonest or negligent subordinates, overwork, multiple assignments or positions, or plain incompetenceis suddenly swept into a conspiracy conviction simply because he did not personally examine every single detail, painstakingly trace every step from inception, and investigate the motives of every person involved in a transaction before affixing his signature as the final approving authority.

x x x x

x x x. All heads of offices have to rely to a reasonable extent on their subordinates and on the good faith of those who prepare bids, purchase supplies, or enter into negotiations. x x x. There has to be some added reason why he should examine each voucher in such detail. Any executive head of even small government agencies or commissions can attest to the volume of papers that must be signed. There are hundreds of documents, letters, memoranda, vouchers,

and supporting papers that routinely pass through his hands. The number in bigger offices or department is even more appalling.[23]

WHEREFORE, premises considered, the Decision dated August 30, 2007 and Resolution dated March 10, 2008 of the Sandiganbayan in Criminal Case Nos. 27944, 27946, 27952, 27953, & 27954 are REVERSED and SET ASIDE. Petitioners Joey P. Marquez in G.R. Nos. 182020-24 and Ofelia C. Caunan in G.R. Nos. 181999 and 182001-04 are ACQUITTED of the charges against them. Costs de oficio.

SO ORDERED. RA 7080 Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 133535 September 9, 1999 LILIA B. ORGANO, petitioner, vs. THE SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, respondents.

PARDO, J.: The case before the Court is a special civil action for certiorari with preliminary injunction or temporary restraining order assailing the resolutions of the Sandiganbayan, Fourth Division, 1 that denied petitioner's motion to quash the information in the case below, for lack of merit.1wphi1.nt We grant the petition. The facts are as follows: On August 15, 1997, Special Prosecution Officer Jose T. de Jesus, Jr., filed with the Sandiganbayan an Information against petitioner, together with others, for the crime of "plunder" or violation of R.A. No. 7080, as amended by R.A. No. 7659. 2 The Information reads as follows: That on or about 05 November 1996, or sometime prior or subsequent thereto, in Quezon City, Philippines and within the jurisdiction of this Honorable Court, accused Dominga S. Manalili, Teopisto A. Sapitula, Jose dP. Marcelo, Lilia B. Organo, being then public officers and taking advantage of their official positions as employees of the Bureau of Internal Revenue, Region 7,

Quezon City, and Gil R. Erencio, Reynaldo S. Enriquez and Luis S. Se, Jr., conspiring, confabulating and confederating with one another, did then and there wilfully, unlawfully and criminally amass and acquire funds belonging to the National Government by opening an unauthorized bank account with the Landbank of the Philippines, West Triangle Branch, Diliman, Quezon City, for and in behalf of the Bureau of Internal Revenue and deposit therein money belonging to the government of the Philippines, consisting of revenue tax payments, then withdraw therefrom the total sum of Pesos: One Hundred Ninety Three Million Five Hundred Sixty Five Thousand Seventy Nine & 64/100 (P193,565,079.64) Philippine Currency, between November, 1996 to February, 1997, without proper authority, through checks made payable to themselves and/or the sole proprietorship firms of the above named private persons, thereby succeeding in misappropriating, converting, misusing and/or malversing said public finds tantamount to a raid on the public treasury, to their own personal gains, advantages and benefits, to the damage and prejudice of the government in the aforestated amount. 3 On August 20, 1997, petitioner filed with the Sandiganbayan a motion to quash information for lack of jurisdiction, contending that the Sandiganbayan no longer had jurisdiction over the case under R.A. 8249, approved on February 5, 1997. On September 29, 1997, without first resolving petitioner's motion to quash information, the Sandiganbayan issued a warrant of arrest against all the accused in the case. On November 28, 1997, the Sandiganbayan issued a resolution denying petitioner's motion to quash the information for lack of merit. On December 9, 1997, petitioner filed with the Sandiganbayan a motion for reconsideration, reiterating the ground of lack of jurisdiction over the case pursuant to Republic Act No. 8249, approved on February 5, 1997. On April 28, 1998, after one hundred forty (140) days from its filing, the Sandiganbayan issued a resolution denying petitioner's motion for reconsideration ruling that she should first surrender to the court before she may file any further pleading with the court. Hence, this petition. On June 23, 1998, the Court resolved to require the respondents to comment on the petition, not to file a motion to dismiss, within ten (10) days from notice. 4 On September 14, 1998, the Office of the Special Prosecutor, representing the People of the Philippines, filed its comment. 5 On January 4, 1999, the Solicitor General filed his comment. 6 We give due course to the petition. At issue is whether the Sandiganbayan at the time of the filing of the information on August 15, 1997 had jurisdiction over the case, in view of the enactment on February 5, 1997 of Republic Act No. 8249, vesting in the Sandiganbayan jurisdiction over offenses and felonies whether simple or complexed with other crimes committed by public officers and employees mentioned in subsection (a) of Section 4 in relation to their office where the accused holds a position with salary grade "27" and higher under the Compensation and Position Classification Act of 1989. Petitioner contends that since none of the accused holds a position with Salary Grade "27" and higher, jurisdiction over the case falls with the Regional Trial Court. 7 On the other hand, respondent Sandiganbayan's position is that Republic Act No. 7080 which defines and penalizes the crime of "plunder" vests in the Sandiganbayan jurisdiction thereof, and since it is a special law, it constitutes an exception to the general law, Republic Act No. 8249. 8

Republic Act No. 7080, Section 3 provides: Until otherwise provided by law, all pro-sections under this Act shall be within the original jurisdiction of the Sandiganbayan. This law was enacted on September 23, 1991, and was effective on October 7, 1991. On February 5, 1997, Republic Act No. 8249 was approved, further defining the jurisdiction of the Sandiganbayan. Sec. 4 of the law provides: Sec. 4. Jurisdiction. The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: xxx xxx xxx b. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in sub-section a of this section in relation to their office. xxx xxx xxx In cases where none of the accused are occupying positions corresponding to Salary Grade "27" or higher, as prescribed in the said Republic Act No. 6758, or military and PNP officers mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their respective jurisdictions as provided in Batas Pambansa Blg. 129, as amended. 9 This latest enactment collated the provisions on the exclusive jurisdiction of the Sandiganbayan. It is a special law enacted to declog the Sandiganbayan of "small fry" cases. In an unusual manner, the original jurisdiction of the Sandiganbayan as a trial court was made to depend not on the penalty imposed by law on the crimes and offenses within its jurisdiction but on the rank and salary grade of accused government officials and employees. However, the crime of "plunder" defined in Republic Act No. 7080, as amended by Republic Act No. 7659, was provisionally placed within the jurisdiction of the Sandiganbayan "until otherwise provided by law." 10 Republic Act No. 8429, enacted on February 5, 1997 is the special law that provided for the jurisdiction of the Sandiganbayan "otherwise" than that prescribed in Republic Act No. 7080. Consequently, we rule that the Sandiganbayan has no jurisdiction over the crime of plunder unless committed by public officials and employees occupying the positions with Salary Grade "27" or higher, under the Compensation and Position Classification Act of 1989 (Republic Act No. 6758) in relation to their office. In ruling in favor of its jurisdiction, even though none of the accused occupied positions with Salary Grade "27" or higher under the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), the Sandiganbayan incurred in serious error of jurisdiction, entitling petitioner to the relief prayed for. WHEREFORE, the Court hereby GRANTS the petition, for certiorari and ANNULS the resolutions of the Sandiganbayan, dated November 20, 1997, and April 28, 1998, in Criminal Case No. 24100.

The Court orders the Sandiganbayan to forthwith refer the case to the court of proper jurisdiction.1wphi1.nt No costs. SO ORDERED. EN BANC [G.R. No. 148965 : February 26, 2002] JOSE JINGGOY E. ESTRADA, Petitioner, v. SANDIGANBAYAN (THIRD DIVISION), PEOPLE OF THE PHILIPPINES and OFFICE OF THE OMBUDSMAN, Respondents. DECISION PUNO, J.: A law may not be constitutionally infirm but its application to a particular party may be unconstitutional. This is the submission of the petitioner who invokes the equal protection clause of the Constitution in his bid to be excluded from the charge of plunder filed against him by the respondent Ombudsman. The antecedent facts are as follows: In November 2000, as an offshoot of the impeachment proceedings against Joseph Ejercito Estrada, then President of the Republic of the Philippines, five criminal complaints against the former President and members of his family, his associates, friends and conspirators were filed with the respondent Office of the Ombudsman. On April 4, 2001, the respondent Ombudsman issued a Joint Resolution[1 finding probable cause warranting the filing with the Sandiganbayan of several criminal Informations against the former President and the other respondents therein. One of the Informations was for the crime of plunder under Republic Act No. 7080 and among the respondents was herein petitioner Jose Jinggoy Estrada, then mayor of San Juan, Metro Manila. The Information was amended and filed on April 18, 2001. Docketed as Criminal Case No. 26558, the case was assigned to respondent Third Division of the Sandiganbayan. The arraignment of the accused was set on July 10, 2001 and no bail for petitioners provisional liberty was fixed. On April 24, 2001, petitioner filed a Motion to Quash or Suspend the Amended Information on the ground that the Anti-Plunder Law, R.A. No. 7080, is unconstitutional and that it charged more than one offense. Respondent Ombudsman opposed the motion. On April 25, 2001, the respondent court issued a warrant of arrest for petitioner and his coaccused. On its basis, petitioner and his co-accused were placed in custody of the law. On April 30, 2001, petitioner filed a Very Urgent Omnibus Motion[2 alleging that: (1) no probable cause exists to put him on trial and hold him liable for plunder, it appearing that he was only allegedly involved in illegal gambling and not in a series or combination of overt or criminal acts as required in R.A. No. 7080; and (2) he is entitled to bail as a matter of right. Petitioner prayed that he be excluded from the Amended Information and be discharged from custody. In the alternative, petitioner also prayed that he be allowed to post bail in an amount to be fixed by respondent court.[3

On June 28, 2001, petitioner filed a Motion to Resolve Mayor Jose Jinggoy Estradas Motion To Fix Bail On Grounds That An Outgoing Mayor Loses Clout An Incumbent Has And That On Its Face, the Facts Charged In The Information Do Not Make Out A Non-Bailable Offense As To Him.[4 On July 3, 2001, petitioner filed a Motion to Strike Out So-Called Entry of Appearance, To Direct Ombudsman To Explain Why He Attributes Impropriety To The Defense And To Resolve Pending Incidents.[5 On July 9, 2001, respondent Sandiganbayan issued a Resolution denying petitioners Motion to Quash and Suspend and Very Urgent Omnibus Motion.[6 Petitioners alternative prayer to post bail was set for hearing after arraignment of all accused. The court held: WHEREFORE, in view of the foregoing, the Court hereby DENIES for lack of merit the following: (1) MOTION TO QUASH AND SUSPEND dated April 24, 2001 filed by accused Jose Jinggoy Estrada; (2) MOTION TO QUASH dated June 7, 2001 filed by accused Joseph Ejercito Estrada; and (3) MOTION TO QUASH (Re: Amended Information dated 18 April 2001) dated June 26, 2001 filed by accused Edward S. Serapio. Considering the denial of the MOTION TO QUASH AND SUSPEND of accused Jose Jinggoy Estrada, his VERY URGENT OMNIBUS MOTION, praying that he be: (1) dropped from the information for plunder for want of probable cause and (2) discharged from custody immediately which is based on the same grounds mentioned in this MOTION TO QUASH AND SUSPEND is hereby DENIED. Let his alternative prayer in said OMNIBUS MOTION that he be allowed to post bail be SET for hearing together with the petition for bail of accused Edward S. Serapio scheduled for July 10, 2001, at 2:00 oclock in the afternoon after the arraignment of all the accused.[7 The following day, July 10, 2001, petitioner moved for reconsideration of the Resolution. Respondent court denied the motion and proceeded to arraign petitioner. Petitioner refused to make his plea prompting respondent court to enter a plea of not guilty for him.[8 Hence, this petition. Petitioner claims that respondent Sandiganbayan acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction in: 1) not declaring that R.A. No. 7080 is unconstitutional on its face and, as applied to petitioner, and denying him the equal protection of the laws; 2) not holding that the Plunder Law does not provide complete and sufficient standards; 3) sustaining the charge against petitioner for alleged offenses, and with alleged conspirators, with which and with whom he is not even remotely connected - contrary to the dictum that criminal liability is personal, not vicarious - results in the denial of substantive due process; 4) not fixing bail for petitioner for alleged involvement in jueteng in one count of the information which amounts to cruel and unusual punishment totally in defiance of the principle of proportionality.[9 We shall resolve the arguments of petitioner in seriatim. I. Petitioner contends that R.A. No. 7080 is unconstitutional on its face and as applied to him and denies him the equal protection of the laws.[10 The contention deserves our scant attention. The constitutionality of R.A. No. 7080, the AntiPlunder Law, has been settled in the case of Estrada v. Sandiganbayan.[11 We take off from the Amended Information which charged petitioner, together with former President Joseph E.

Estrada, Atty. Edward Serapio, Charlie Atong Ang, Yolanda T. Ricaforte and others, with the crime of plunder as follows: AMENDED INFORMATION The undersigned Ombudsman Prosecutor and OIC-Director, EPIB Office of the Ombudsman, hereby accuses former PRESIDENT OF THE PHILIPPINES, Joseph Ejercito Estrada a.k.a. ASIONG SALONGA AND a.k.a JOSE VELARDE, together with Jose Jinggoy Estrada, Charlie Atong Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John DOES & Jane Does, of the crime of Plunder, defined and penalized under R.A. No. 7080, as amended by Sec. 12 of R.A. No. 7659, committed as follows: That during the period from June, 1998 to January, 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A PUBLIC OFFICER, BEING THEN THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION, OR INFLUENCE, did then and there wilfully, unlawfully and criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount OR TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS [P4,097,804,173.17], more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES, through ANY OR A combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows: (a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connivance with co-accused CHARLIE ATONG ANG, Jose Jinggoy Estrada, Yolanda T. Ricaforte, Edward Serapio, AN (sic) JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING; (b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit, public funds in the amount of ONE HUNDRED THIRTY MILLION PESOS [P130,000,000.00], more or less, representing a portion of the TWO HUNDRED MILLION PESOS [P200,000,000] tobacco excise tax share allocated for the Province of Ilocor Sur under R.A. No. 7171, BY HIMSELF AND/OR in CONNIVANCE with co-accused Charlie Atong Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES AND JANE DOES; (c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND BENEFIT, the Government Service Insurance System (GSIS) TO PURCHASE 351,878,000 SHARES OF STOCK MORE OR LESS, and the Social Security System (SSS), 329,855,000 SHARES OF STOCK MORE OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY CENTAVOS [P1,102,965,607.50] AND MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS [P744,612,450.00], RESPECTIVELY, OR A TOTAL OF MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS [P1,847,578,057.50]; AND BY COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE DOES, COMMISSIONS OR PERCENTAGES BY REASON OF SAID PURCHASES OF SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS

[P189,700,000.00], MORE OR LESS, FROM THE BELLE CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME JOSE VELARDE; (d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBACKS, OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, in the amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS [P3,233,104,173.17] AND DEPOSITING THE SAME UNDER HIS ACCOUNT NAME JOSE VELARDE AT THE EQUITABLE-PCI BANK. CONTRARY TO LAW. Manila for Quezon City, Philippines, 18 April 2001[12 Petitioners contention that R.A. No. 7080 is unconstitutional as applied to him is principally perched on the premise that the Amended Information charged him with only one act or one offense which cannot constitute plunder. He then assails the denial of his right to bail. Petitioners premise is patently false. A careful examination of the Amended Information will show that it is divided into three (3) parts: (1) the first paragraph charges former President Joseph E. Estrada with the crime of plunder together with petitioner Jose Jinggoy Estrada, Charlie Atong Ang, Edward Serapio, Yolanda Ricaforte and others; (2) the second paragraph spells out in general terms how the accused conspired in committing the crime of plunder; and (3) the following four sub-paragraphs (a) to (d) describe in detail the predicate acts constitutive of the crime of plunder pursuant to items (1) to (6) of R.A. No. 7080, and state the names of the accused who committed each act. Pertinent to the case at bar is the predicate act alleged in sub-paragraph (a) of the Amended Information which is of receiving or collecting, directly or indirectly, on several instances, money in the aggregate amount of P545,000,000.00 for illegal gambling in the form of gift, share, percentage, kickback or any form of pecuniary benefit x x x. In this sub-paragraph (a), petitioner, in conspiracy with former President Estrada, is charged with the act of receiving or collecting money from illegal gambling amounting to P545 million. Contrary to petitioners posture, the allegation is that he received or collected money from illegal gambling on several instances. The phrase on several instances means the petitioner committed the predicate act in series. To insist that the Amended Information charged the petitioner with the commission of only one act or offense despite the phrase several instances is to indulge in a twisted, nay, pretzel interpretation. It matters little that sub-paragraph (a) did not utilize the exact words combination or series as they appear in R.A. No. 7080. For in Estrada v. Sandiganbayan,[13 we held that where these two terms are to be taken in their popular, not technical, meaning, the word series is synonymous with the clause on several instances. Series refers to a repetition of the same predicate act in any of the items in Section 1 (d) of the law. The word combination contemplates the commission of at least any two different predicate acts in any of said items. Plainly, sub-paragraph (a) of the Amended Information charges petitioner with plunder committed by a series of the same predicate act under Section 1 (d) (2) of the law. Similarly misleading is petitioners stand that in the Ombudsman Resolution of April 4, 2001 finding probable cause to charge him with plunder together with the other accused, he was alleged to have received only the sum of P2 million, which amount is way below the minimum of P50 million required under R.A. No. 7080. The submission is not borne out by the April 4, 2001 Resolution of the Ombudsman, recommending the filing of charges against petitioner and his coaccused, which in pertinent part reads: xxx

Respondent Jose Jinggoy Estrada, the present Mayor of San Juan, Metro Manila, appears to have also surreptitious collection of protection money from jueteng operations in Bulacan. This is gleaned from the statements of Gov. Singson himself and the fact that Mayor Estrada, on at least two occasions, turned over to a certain Emma Lim, an emissary of the respondent governor, jueteng haul totalling P2 million, i.e., P1 million in January, 2000 and another P1 million in February, 2000. An alleged listahan of jueteng recipients listed him as one Jingle Bell, as affirmed by Singson [TSN 8 & Dec. 2000 SICt/17 Oct. 2000 SBRC/SCI].[14 Hence, contrary to the representations of the petitioner, the Ombudsman made the finding that P2 million was delivered to petitioner as jueteng haul on at least two occasions. The P2 million is, therefore, not the entire sum with which petitioner is specifically charged. This is further confirmed by the conclusion of the Ombudsman that: xxx It is clear that Joseph Ejercito Estrada, in confabulation with Jose Jinggoy Estrada, Atty. Edward Serapio and Yolanda Ricaforte, demanded and received, as bribe money, the aggregate sum of P545 million from jueteng collections of the operators thereof, channeled thru Gov. Luis Chavit Singson, in exchange for protection from arrest or interference by law enforcers; x x x.[15 To be sure, it is too late in the day for the petitioner to argue that the Ombudsman failed to establish any probable cause against him for plunder. The respondent Sandiganbayan itself has found probable cause against the petitioner for which reason it issued a warrant of arrest against him. Petitioner then underwent arraignment and is now on trial. The time to assail the finding of probable cause by the Ombudsman has long passed. The issue cannot be resurrected in this petition. II. Next, petitioner contends that the plunder law does not provide sufficient and complete standards to guide the courts in dealing with accused alleged to have contributed to the offense. [16 Thus, he posits the following questions: For example, in an Information for plunder which cites at least ten criminal acts, what penalty do we impose on one who is clearly involved in only one such criminal act? Is it reclusion perpetua? Or should it be a lesser penalty? What if another accused is shown to have participated in three of the ten specifications, what would be the penalty imposable, compared to one who may have been involved in five or seven of the specifications? The law does not provide the standard or specify the penalties and the courts are left to guess. In other words, the courts are called to say what the law is rather than to apply what the lawmaker is supposed to have intended.[17 Petitioner raises these hypothetical questions for he labors hard under the impression that: (1) he is charged with only one act or offense and (2) he has not conspired with the other accused named in sub-paragraphs (b) to (d) of the Amended Information, ergo, the penalty imposable on him ought to be different from reclusion perpetua to death. R.A. No. 7080, he bewails, is cloudy on the imposable penalty on an accused similarly situated as he is. Petitioner, however, overlooks that the second paragraph of the Amended Information charges him to have conspired with former President Estrada in committing the crime of plunder. His alleged participation consists in the commission of the predicate acts specified in sub-paragraph (a) of the Amended Information. If these allegations are proven, the penalty of petitioner cannot be unclear. It will be no different from that of the former President for in conspiracy, the act of one is the act of the other. The imposable penalty is provided in Section 2 of R.A. No. 7080, viz: Section 2. Any public officer who, by himself or in connivance with the members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons,

amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described in Section 1(d) hereof in the aggregate amount or total value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death. Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court. III. Petitioner also faults the respondent Sandiganbayan for sustaining the charge against petitioner for alleged offenses and with alleged conspirators, with which and with whom he is not even remotely connected contrary to the dictum that criminal liability is personal, not vicarious results in the denial of substantive due process.[18 The Solicitor General argues, on the other hand, that petitioner is charged not only with the predicate act in sub-paragraph (a) but also with the other predicate acts in sub-paragraphs (b), (c) & (d) because he is indicted as a principal and as co-conspirator of the former President. This is purportedly clear from the first and second paragraphs of the Amended Information.[19 For better focus, there is a need to examine again the allegations of the Amended Information vis--vis the provisions of R.A. No. 7080. The Amended Information, in its first two paragraphs, charges petitioner and his other coaccused with the crime of plunder. The first paragraph names all the accused, while the second paragraph describes in general how plunder was committed and lays down most of the elements of the crime itself. Sub-paragraphs (a) to (d) describe in detail the predicate acts that constitute the crime and name in particular the co-conspirators of former President Estrada in each predicate act. The predicate acts alleged in the said four sub-paragraphs correspond to the items enumerated in Section 1 (d) of R.A. No. 7080. Sub-paragraph (a) alleged the predicate act of receiving, on several instances, money from illegal gambling, in consideration of toleration or protection of illegal gambling, and expressly names petitioner as one of those who conspired with former President Estrada in committing the offense. This predicate act corresponds with the offense described in item [2] of the enumeration in Section 1 (d) of R.A. No. 7080. Sub-paragraph (b) alleged the predicate act of diverting, receiving or misappropriating a portion of the tobacco excise tax share allocated for the province of Ilocos Sur, which act is the offense described in item [1] in the enumeration in Section 1 (d) of the law. This sub-paragraph does not mention petitioner but instead names other conspirators of the former President. Sub-paragraph (c) alleged two predicate acts - that of ordering the Government Service Insurance System (GSIS) and the Social Security System (SSS) to purchase shares of stock of Belle Corporation, and collecting or receiving commissions from such purchase from the Belle Corporation which became part of the deposit in the Jose Velarde account at the Equitable-PCI Bank. These two predicate acts fall under items [2] and [3] in the enumeration of R.A. No. 7080, and was allegedly committed by the former President in connivance with John Does and Jane Does. Finally, subparagraph (d) alleged the predicate act that the former President unjustly enriched himself from commissions, gifts, kickbacks, in connivance with John Does and Jane Does, and deposited the same under his account name Jose Velarde at the Equitable-PCI Bank. This act corresponds to the offense under item [6] in the enumeration of Section 1 (d) of R.A. No. 7080. From the foregoing allegations of the Amended Information, it is clear that all the accused named in sub-paragraphs (a) to (d), thru their individual acts, conspired with former President Estrada to enable the latter to amass, accumulate or acquire ill-gotten wealth in the aggregate amount of P4,097,804,173.17. As the Amended Information is worded, however, it is not certain whether the accused in sub-paragraphs (a) to (d) conspired with each other to enable the former President to amass the subject ill-gotten wealth. In light of this lack of clarity, petitioner cannot

be penalized for the conspiracy entered into by the other accused with the former President as related in the second paragraph of the Amended Information in relation to its sub-paragraphs (b) to (d). We hold that petitioner can be held accountable only for the predicate acts he allegedly committed as related in sub-paragraph (a) of the Amended Information which were allegedly done in conspiracy with the former President whose design was to amass ill-gotten wealth amounting to more than P4 billion. We hasten to add, however, that the respondent Ombudsman cannot be faulted for including the predicate acts alleged in sub-paragraphs (a) to (d) of the Amended Information in one, and not in four, separate Informations. A study of the history of R.A. No. 7080 will show that the law was crafted to avoid the mischief and folly of filing multiple informations. The Anti-Plunder Law was enacted in the aftermath of the Marcos regime where charges of ill-gotten wealth were filed against former President Marcos and his alleged cronies. Government prosecutors found no appropriate law to deal with the multitude and magnitude of the acts allegedly committed by the former President to acquire illegal wealth.[20 They also found that under the then existing laws such as the Anti-Graft and Corrupt Practices Act, the Revised Penal Code and other special laws, the acts involved different transactions, different time and different personalities. Every transaction constituted a separate crime and required a separate case and the over-all conspiracy had to be broken down into several criminal and graft charges. The preparation of multiple Informations was a legal nightmare but eventually, thirty-nine (39) separate and independent cases were filed against practically the same accused before the Sandiganbayan. [21 R.A. No. 7080 or the Anti-Plunder Law[22 was enacted precisely to address this procedural problem. This is pellucid in the Explanatory Note to Senate Bill No. 733, viz: Plunder, a term chosen from other equally apt terminologies like kleptocracy and economic treason, punishes the use of high office for personal enrichment, committed thru a series of acts done not in the public eye but in stealth and secrecy over a period of time, that may involve so many persons, here and abroad, and which touch so many states and territorial units. The acts and/or omissions sought to be penalized do not involve simple cases of malversation of public funds, bribery, extortion, theft and graft but constitute plunder of an entire nation resulting in material damage to the national economy. The above-described crime does not yet exist in Philippine statute books. Thus, the need to come up with a legislation as a safeguard against the possible recurrence of the depravities of the previous regime and as a deterrent to those with similar inclination to succumb to the corrupting influence of power. There is no denying the fact that the plunder of an entire nation resulting in material damage to the national economy is made up of a complex and manifold network of crimes. In the crime of plunder, therefore, different parties may be united by a common purpose. In the case at bar, the different accused and their different criminal acts have a commonalityto help the former President amass, accumulate or acquire ill-gotten wealth. Sub-paragraphs (a) to (d) in the Amended Information alleged the different participation of each accused in the conspiracy. The gravamen of the conspiracy charge, therefore, is not that each accused agreed to receive protection money from illegal gambling, that each misappropriated a portion of the tobacco excise tax, that each accused ordered the GSIS and SSS to purchase shares of Belle Corporation and receive commissions from such sale, nor that each unjustly enriched himself from commissions, gifts and kickbacks; rather, it is that each of them, by their individual acts, agreed to participate, directly or indirectly, in the amassing, accumulation and acquisition of ill-gotten wealth of and/or for former President Estrada. In the American jurisdiction, the presence of several accused in multiple conspiracies commonly involves two structures: (1) the so-called wheel or circle conspiracy, in which there is a single person or group (the hub) dealing individually with two or more other persons or groups (the spokes); and (2) the chain conspiracy, usually involving the distribution of narcotics or other contraband, in which there is successive communication and cooperation in much the same way as with legitimate business operations between manufacturer and wholesaler, then wholesaler and retailer, and then retailer and consumer.[23

From a reading of the Amended Information, the case at bar appears similar to a wheel conspiracy. The hub is former President Estrada while the spokes are all the accused, and the rim that encloses the spokes is the common goal in the overall conspiracy, i.e., the amassing, accumulation and acquisition of ill-gotten wealth. IV. Some of our distinguished colleagues would dismiss the charge against the petitioner on the ground that the allegation of conspiracy in the Amended Information is too general. The fear is even expressed that it could serve as a net to ensnare the innocent. Their dissents appear to be inspired by American law and jurisprudence. We should not confuse our law on conspiracy with conspiracy in American criminal law and in common law. Under Philippine law, conspiracy should be understood on two levels. As a general rule, conspiracy is not a crime in our jurisdiction. It is punished as a crime only when the law fixes a penalty for its commission such as in conspiracy to commit treason, rebellion and sedition. In contrast, under American criminal law, the agreement or conspiracy itself is the gravamen of the offense.[24The essence of conspiracy is the combination of two or more persons, by concerted action, to accomplish a criminal or unlawful purpose, or some purpose not in itself criminal or unlawful, by criminal or unlawful means.[25 Its elements are: agreement to accomplish an illegal objective, coupled with one or more overt acts in furtherance of the illegal purpose; and requisite intent necessary to commit the underlying substantive offense.[26 A study of the United States Code ought to be instructive. It principally punishes two (2) crimes of conspiracy[27conspiracy to commit any offense or to defraud the United States, and conspiracy to impede or injure officer. Conspiracy to commit offense or to defraud the United States is penalized under 18 U.S.C. Sec. 371,[28 as follows: Sec. 371. Conspiracy to commit offense or to defraud the United States. If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons to any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both. If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor. Conspiracy to impede or injure officer is penalized under 18 U.S.C. Sec. 372, viz: Sec. 372. Conspiracy to impede or injure officer. If two or more persons in any State, Territory, Possession, or District conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust or place of confidence under the United States, or from discharging any duties thereof, or to induce by like means any officer of the United States to leave the place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties, each of such persons shall be fined not more than $5,000 or imprisoned not more than six years, or both. Section 371 of 18 U.S.C. punishes two acts: (1) conspiracy to commit any offense against the United States; and (2) conspiracy to defraud the United States or any agency thereof. The conspiracy to commit any offense against the United States refers to an act made a crime by federal laws.[29 It refers to an act punished by statute.[30 Undoubtedly, Section 371 runs the whole gamut of U.S. Federal laws, whether criminal or regulatory.[31 These laws cover criminal

offenses such as perjury, white slave traffic, racketeering, gambling, arson, murder, theft, bank robbery, etc. and also include customs violations, counterfeiting of currency, copyright violations, mail fraud, lotteries, violations of antitrust laws and laws governing interstate commerce and other areas of federal regulation.[32 Section 371 penalizes the conspiracy to commit any of these substantive offenses. The offense of conspiracy is generally separate and distinct from the substantive offense,[33 hence, the court rulings that acquittal on the substantive count does not foreclose prosecution and conviction for related conspiracy.[34 The conspiracy to defraud the government refers primarily to cheating the United States out of property or money. It also covers interference with or obstruction of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest.[35 It comprehends defrauding the United States in any manner whatever, whether the fraud be declared criminal or not.[36 The basic difference in the concept of conspiracy notwithstanding, a study of the American case law on how conspiracy should be alleged will reveal that it is not necessary for the indictment to include particularities of time, place, circumstances or causes, in stating the manner and means of effecting the object of the conspiracy. Such specificity of detail falls within the scope of a bill of particulars.[37 An indictment for conspiracy is sufficient where it alleges: (1) the agreement; (2) the offense-object toward which the agreement was directed; and (3) the overt acts performed in furtherance of the agreement.[38 To allege that the defendants conspired is, at least, to state that they agreed to do the matters which are set forth as the substance of their conspiracy. To allege a conspiracy is to allege an agreement.[39 The gist of the crime of conspiracy is unlawful agreement, and where conspiracy is charged, it is not necessary to set out the criminal object with as great a certainty as is required in cases where such object is charged as a substantive offense.[40 In sum, therefore, there is hardly a substantial difference on how Philippine courts and American courts deal with cases challenging Informations alleging conspiracy on the ground that they lack particularities of time, place, circumstances or causes. In our jurisdiction, as aforestated, conspiracy can be alleged in the Information as a mode of committing a crime or it may be alleged as constitutive of the crime itself. When conspiracy is alleged as a crime in itself, the sufficiency of the allegations in the Information charging the offense is governed by Section 6, Rule 110 of the Revised Rules of Criminal Procedure. It requires that the information for this crime must contain the following averments: Sec. 6. Sufficiency of complaint or information.- A complaint or information is sufficient if it states the name of the accused, the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed. When the offense was committed by more than one person, all of them shall be included in the complaint or information. The complaint or information to be sufficient must state the name of the accused, designate the offense given by statute, state the acts or omissions constituting the offense, the name of the offended party, the approximate date of the commission of the offense and the place where the offense was committed. Our rulings have long settled the issue on how the acts or omissions constituting the offense should be made in order to meet the standard of sufficiency. Thus, the offense must be designated by its name given by statute or by reference to the section or subsection of the statute punishing it.[41 The information must also state the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances.[42 The acts or omissions complained of must be alleged in such form as is sufficient to enable a person of common

understanding to know what offense is intended to be charged, and enable the court to pronounce proper judgment.[43 No information for a crime will be sufficient if it does not accurately and clearly allege the elements of the crime charged.[44 Every element of the offense must be stated in the information.[45 What facts and circumstances are necessary to be included therein must be determined by reference to the definitions and essentials of the specified crimes. [46 The requirement of alleging the elements of a crime in the information is to inform the accused of the nature of the accusation against him so as to enable him to suitably prepare his defense. The presumption is that the accused has no independent knowledge of the facts that constitute the offense.[47 To reiterate, when conspiracy is charged as a crime, the act of conspiring and all the elements of said crime must be set forth in the complaint or information. For example, the crime of conspiracy to commit treason is committed when, in time of war, two or more persons come to an agreement to levy war against the Government or to adhere to the enemies and to give them aid or comfort, and decide to commit it.[48 The elements of this crime are: (1) that the offender owes allegiance to the Government of the Philippines; (2) that there is a war in which the Philippines is involved; (3) that the offender and other person or persons come to an agreement to: (a) levy war against the government, or (b) adhere to the enemies, to give them aid and comfort; and (4) that the offender and other person or persons decide to carry out the agreement. These elements must be alleged in the information. The requirements on sufficiency of allegations are different when conspiracy is not charged as a crime in itself but only as the mode of committing the crime as in the case at bar. There is less necessity of reciting its particularities in the Information because conspiracy is not the gravamen of the offense charged. The conspiracy is significant only because it changes the criminal liability of all the accused in the conspiracy and makes them answerable as co-principals regardless of the degree of their participation in the crime.[49 The liability of the conspirators is collective and each participant will be equally responsible for the acts of others,[50 for the act of one is the act of all.[51 In People v. Quitlong,[52 we ruled on how conspiracy as the mode of committing the offense should be alleged in the Information, viz: x x x. In embodying the essential elements of the crime charged, the information must set forth the facts and circumstances that have a bearing on the culpability and liability of the accused so that the accused can properly prepare for and undertake his defense. One such fact or circumstance in a complaint against two or more accused persons is that of conspiracy. Quite unlike the omission of an ordinary recital of fact which, if not excepted from or objected to during trial, may be corrected or supplied by competent proof, an allegation, however, of conspiracy, or one that would impute criminal liability to an accused for the act of another or others, is indispensable in order to hold such person, regardless of the nature and extent of his own participation, equally guilty with the other or others in the commission of the crime. Where conspiracy exists and can rightly be appreciated, the individual acts done to perpetrate the felony becomes of secondary importance, the act of one being imputable to all the others (People v. Ilano, 313 SCRA 442). Verily, an accused must know from the information whether he faces a criminal responsibility not only for his acts but also for the acts of his co-accused as well. A conspiracy indictment need not, of course, aver all the components of conspiracy or allege all the details thereof, like the part that each of the parties therein have performed, the evidence proving the common design or the facts connecting all the accused with one another in the web of the conspiracy. Neither is it necessary to describe conspiracy with the same degree of particularity required in describing a substantive offense. It is enough that the indictment contains a statement of facts relied upon to be constitutive of the offense in ordinary and concise language, with as much certainty as the nature of the case will admit, in a manner that can enable a person of common understanding to know what is intended, and with such precision that the accused may plead his acquittal or conviction to a subsequent indictment based on the same facts. It is said, generally, that an indictment may be held sufficient if it follows the words of the statute and reasonably informs the accused of the character of the offense he is charged

with conspiring to commit, or, following the language of the statute, contains a sufficient statement of an overt act to effect the object of the conspiracy, or alleges both the conspiracy and the contemplated crime in the language of the respective statutes defining them (15A C.J.S. 842-844). xxx x x x. Conspiracy arises when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Conspiracy comes to life at the very instant the plotters agree, expressly or impliedly, to commit the felony and forthwith to actually pursue it. Verily, the information must state that the accused have confederated to commit the crime or that there has been a community of design, a unity of purpose or an agreement to commit the felony among the accused. Such an allegation, in the absence of the usual usage of the words conspired or confederated or the phrase acting in conspiracy, must aptly appear in the information in the form of definitive acts constituting conspiracy. In fine, the agreement to commit the crime, the unity of purpose or the community of design among the accused must be conveyed such as either by the use of the term conspire or its derivatives and synonyms or by allegations of basic facts constituting the conspiracy. Conspiracy must be alleged, not just inferred, in the information on which basis an accused can aptly enter his plea, a matter that is not to be confused with or likened to the adequacy of evidence that may be required to prove it. In establishing conspiracy when properly alleged, the evidence to support it need not necessarily be shown by direct proof but may be inferred from shown acts and conduct of the accused. xxx. Again, following the stream of our own jurisprudence, it is enough to allege conspiracy as a mode in the commission of an offense in either of the following manner: (1) by use of the word conspire, or its derivatives or synonyms, such as confederate, connive, collude, etc;[53 or (2) by allegations of basic facts constituting the conspiracy in a manner that a person of common understanding would know what is intended, and with such precision as would enable the accused to competently enter a plea to a subsequent indictment based on the same facts.[54 The allegation of conspiracy in the information must not be confused with the adequacy of evidence that may be required to prove it. A conspiracy is proved by evidence of actual cooperation; of acts indicative of an agreement, a common purpose or design, a concerted action or concurrence of sentiments to commit the felony and actually pursue it.[55 A statement of this evidence is not necessary in the information. In the case at bar, the second paragraph of the Amended Information alleged in general terms how the accused committed the crime of plunder. It used the words in connivance/conspiracy with his co-accused. Following the ruling in Quitlong, these words are sufficient to allege the conspiracy of the accused with the former President in committing the crime of plunder. V. We now come to petitioners plea for bail. On August 14, 2002, during the pendency of the instant petition before this Court, petitioner filed with respondent Sandiganbayan an Urgent Second Motion for Bail for Medical Reasons. Petitioner prayed that he be allowed to post bail due to his serious medical condition which is life-threatening to him if he goes back to his place of detention. The motion was opposed by respondent Ombudsman to which petitioner replied. For three days, i.e., on September 4, 20 and 27, 2001, respondent Sandiganbayan conducted hearings on the motion for bail. Dr. Roberto V. Anastacio, a cardiologist of the Makati Medical Center, testified as sole witness for petitioner.

On December 18, 2001, petitioner filed with the Supreme Court an Urgent Motion for Early/Immediate Resolution of Jose Jinggoy Estradas Petition for Bail on Medical/Humanitarian Considerations. Petitioner reiterated the motion for bail he earlier filed with respondent Sandiganbayan.[56 On the same day, we issued a Resolution referring the motion to respondent Sandiganbayan for resolution and requiring said court to make a report, not later than 8:30 in the morning of December 21, 2001. On December 21, 2001, respondent court submitted its Report. Attached to the Report was its Resolution dated December 20, 2001 denying petitioners motion for bail for lack of factual basis. [57 Basing its finding on the earlier testimony of Dr. Anastacio, the Sandiganbayan found that petitioner failed to submit sufficient evidence to convince the court that the medical condition of the accused requires that he be confined at home and for that purpose that he be allowed to post bail.[58 The crime of plunder is punished by R.A. No. 7080, as amended by Section 12 of R.A. No. 7659, with the penalty of reclusion perpetua to death. Under our Rules, offenses punishable by death, reclusion perpetua or life imprisonment are non-bailable when the evidence of guilt is strong, to wit: Sec. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal prosecution.[59 Section 7, Rule 114 of the Revised Rules of Criminal Procedure is based on Section 13, Article III of the 1987 Constitution which reads: Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. The constitutional mandate makes the grant or denial of bail in capital offenses hinge on the issue of whether or not the evidence of guilt of the accused is strong. This requires that the trial court conduct bail hearings wherein both the prosecution and the defense are afforded sufficient opportunity to present their respective evidence. The burden of proof lies with the prosecution to show strong evidence of guilt.[60 This Court is not in a position to grant bail to the petitioner as the matter requires evidentiary hearing that should be conducted by the Sandiganbayan. The hearings on which respondent court based its Resolution of December 20, 2001 involved the reception of medical evidence only and which evidence was given in September 2001, five months ago. The records do not show that evidence on petitioners guilt was presented before the lower court. Upon proper motion of the petitioner, respondent Sandiganbayan should conduct hearings to determine if the evidence of petitioners guilt is strong as to warrant the granting of bail to petitioner. IN VIEW WHEREOF, the petition is dismissed for failure to show that the respondent Sandiganbayan acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction. SO ORDERED.

RA 9160 as amended by RA 9194 SECOND DIVISION [G.R. No. 174629, February 14, 2008] 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. 06-114200[1] 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. PIATCO[3] 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 arbitration cases filed in relation to the NAIA 3 Project.[4] 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 eight (8) bank accounts with six (6) different banks.[7] On 27 June 2005, the AMLC issued Resolution No. 75, Series of 2005,[8] 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.[15] Pursuant to the Makati RTC bank inquiry order, the CIS proceeded to inquire and examine the deposits, investments and related web accounts of the four.[16] 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 Sandiganbayan.[17] 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 Sandiganbayan.[18] 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 application[21] 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 appearance[23] before the Manila RTC in SP Case No. 06-114200 and filed an Urgent Motion to Stay Enforcement of Order of January 12, 2006.[24] 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 Order[26] 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[27] 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 Dismiss[28] the application for bank inquiry order. On 2 May 2006, the Manila RTC issued an Omnibus Order[29] 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] Alvarez filed on 10 May 2006 an Urgent Motion[31] 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 Order[32] 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 Reconsideration[33] of the omnibus order on 15 May 2006, but the motion was denied by the Manila RTC in an Order[34] dated 5 July 2006. On 11 July 2006, Alvarez filed an Urgent Motion and Manifestation[35] 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 Order[36] 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 been filed. On the same day, Alvarez filed a Notice of Appeal[37] 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 order filed by the Republic.[39] 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 the 11 May 2006 RTC Order.[40] On 25 July 2006, or one day after Alvarez filed his motion, the Manila RTC issued an Order[41] 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 Reconsideration[44] 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 Injunction[45] 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 Yong[46] 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 to bank accounts located outside the Philippines.[47] On 1 August 2006, the Court of Appeals, acting on Lilia Chengs petition, issued a Temporary Restraining Order[48] 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 Manila RTC issued an Order[49] 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[50] was issued on 15 August 2006 by the Manila RTC, acting on the Urgent Motion for Clarification[51] 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 Petition[55] 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 Motion[56] 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 Order[59] dated 6 October 2006 and later on a Supplemental Temporary Restraining Order[60] dated 13 October 2006 in petitioners favor, enjoining the implementation of the assailed rulings of the Manila RTC and the Court of Appeals. However, on respondents motion, the Court, through a Resolution[61] 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 ex-parte 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 RTCManila, considering the pendency of CA G.R. SP No. 95-198 (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.[64] 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 appear to have originated from legitimate sources.[66] 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 laundering offenses.[67] 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 pending in court concerning such violations.[69] 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 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 2002,[72] 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 in the case of inquiry orders under Section 11.[76] These implementing rules were promulgated by the Bangko Sentral ng Pilipinas, the Insurance Commission and the Securities and Exchange Commission,[77] 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-SC[78] to enforce the provisions of the AMLA specifically authorize ex parte applications with respect to freeze orders under Section 10[79] 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 valued by civilized people.[84] 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, the United States Supreme Court in U.S. v. Miller[85] 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 covered by either the right to information[89] under Section 7, Article III or under the requirement of full public disclosure[90] 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 of amnesty. (Emphasis supplied)[100] 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 is DISMISSED. No pronouncement as to costs. SO ORDERED. RA 7610 Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 147913 January 31, 2007

CLEMENT JOHN FERDINAND M. NAVARRETE, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION CORONA, J.: This petition for review on certiorari1 assails the September 29, 2000 decision2 and May 4, 2001 resolution3 of the Court of Appeals (CA) in CA-G.R. CR No. 20531 which affirmed the January 16, 1997 decision of the Regional Trial Court (RTC), Branch 171, Valenzuela,4 Metro Manila in Criminal Case No. 5302-V-96.5

Petitioner Clement John Ferdinand M. Navarrete was charged with the crime of statutory rape of BBB6 under the following information: That on or about October 30, 1995 in Valenzuela, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, did then and there [willfully], unlawfully and feloniously have sexual intercourse with one [BBB], age[d] 5 years old. CONTRARY TO LAW.7 On arraignment, petitioner pleaded not guilty. The facts show that BBB, who was at that time five years old, and petitioner were neighbors, their houses being adjacent to each other.8 On October 30, 1995, at around past 9:00 in the evening, BBB went to petitioners house to watch television, which was something she often did.9 Only petitioner and BBB were there that night.10 BBB testified that it was on this occasion that petitioner sexually abused her, "placed his penis [in her] vagina" twice, poked her vagina with a "stick with cotton"11 and boxed her on the right side of her eye.12 Then, petitioner brought her to the comfort room and pointed a knife to her throat.13 Afterwards, she and petitioner watched a pornographic movie14 together.15 AAA, BBBs mother, testified that around 10:30 p.m., BBB went out of petitioners house. While trembling and crying, BBB embraced her mother and told her that "Kuya Ferdie sinundot ako."16 The next day, on October 31, 1995, Dr. Noel Minay, medico-legal officer of the National Bureau of Investigation, examined BBB. He found that her maidenhead was short, intact and had a narrow opening at 0.3 cm. in diameter. He concluded that these findings precluded complete penetration by an average-sized Filipino male organ in full erection.17 Testifying in his own behalf, petitioner denied the accusation against him and claimed that AAA merely concocted the charge against him. He alleged that she had ill feelings against his mother who she thought had something to do with the separation of her (AAAs) son from the Philippine Postal Corporation. He also posited that she resented the Navarretes refusal to allow her to place a "jumper" on their electrical connection.18 In a decision dated January 16, 1997, the RTC absolved petitioner of statutory rape as there was no clear and positive proof of the entry of petitioners penis into the labia of the victims vagina. However, it convicted petitioner for acts of lasciviousness under Article 336 of the Revised Penal Code (RPC) in relation to Section 5(b), Article III of RA 7610 (Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act): WHEREFORE, [petitioner] Clement John Ferdinand Navarrete is sentenced to suffer an indeterminate imprisonment of TWELVE (12) YEARS and ONE (1) DAY of RECLUSION TEMPORAL, as minimum to [SIXTEEN] (16) YEARS of RECLUSION TEMPORAL, as maximum with the accessory penalties prescribed by the law and to pay the costs. The accused is hereby ordered to indemnify the victim the amount of P20,000.00 as moral damages and the amount of P10,000.00 pursuant to Section 31 of the [Act].19 On appeal, the CA affirmed the decision of the RTC. Thus, this petition. Petitioner asserts that he cannot be convicted of acts of lasciviousness in relation to Section 5(b), Article III of RA 7610, a crime not specifically alleged in the information which charged him with statutory rape. Otherwise, his constitutional right to be informed of the nature and cause of the accusation against him would be violated. He likewise contends that his guilt for the said offense was not proven beyond reasonable doubt.

There is no merit in the petition. The Constitution mandates that the accused, in all criminal prosecutions, shall enjoy the right to be informed of the nature and cause of the accusation against him.20 From this fundamental precept proceeds the rule that the accused may be convicted only of the crime with which he is charged.21 An exception to this rule is the rule on variance in Section 4, Rule 120 of the Rules of Court:22 Judgment in case of variance between allegation and proof. When there is variance between the offense charged in the complaint or information, and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in that which is proved. Petitioner was found guilty of violating Article 336 of the RPC in relation to Section 5(b), Article III of RA 7610: Sec. 5. Child Prostitution and Other Sexual Abuse. Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: xxx xxx xxx (b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse: Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, [or] the [RPC], for rape or lascivious conduct as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period. Under this provision, when the victim is under 12 years old, the accused shall be prosecuted under either Article 335 (for rape) or Article 336 (for acts of lasciviousness) of the RPC. Accordingly, although an accused is charged in the information with the crime of statutory rape (i.e., carnal knowledge of a woman under twelve years of age23), the offender can be convicted of the lesser crime of acts of lasciviousness, which is included in rape.24 The case of People v. Bon25 is squarely in point. In that case, the accused was charged with the rape of a six-year old girl. The Court ruled that rape was not proved beyond reasonable doubt. We, however, held that the accused was "liable for the crime of acts of lasciviousness, as defined and penalized under Article 336 of the RPC in relation to RA 7610"26 since all the elements of this offense were established. Petitioner cannot therefore successfully argue that his constitutionally protected right to be informed of the nature and cause of the accusation against him was violated when he was found guilty under Section 5 of RA 7610. Petitioner next contends that his guilt was not proven beyond reasonable doubt. We disagree. In Amployo v. People,27 we declared that pursuant to Section 5 (b) of RA 7610, before an accused can be convicted of child abuse through lascivious conduct on a minor below 12 years of age, the requisites for acts of lasciviousness under Article 336 of the RPC must be met in addition to the requisites for sexual abuse under Section 5 of RA 7610.28

The elements of the crime of acts of lasciviousness under Article 336 of the RPC are the following: (1) The offender commits any act of lasciviousness or lewdness; (2) It is done under any of the following circumstances: a. By using force or intimidation; or b. When the offended party is deprived of reason or otherwise unconscious; or c. When the offended party is under 12 years of age; and (3) The offended party is another person of either sex. (emphasis supplied)29 The general rule is that the factual findings of the trial court deserve a high degree of respect and will not be disturbed on appeal in the absence of any clear showing that it overlooked, misapprehended or misapplied some facts or circumstances of weight and substance which can alter the result of the case.30 We uphold the findings of fact of the RTC, as affirmed by the CA. The RTC and CA did not find evidence of the entrance of petitioners penis into the labia of the victims female organ. Nevertheless, BBBs testimony established that petitioner committed lascivious acts on her: BY ATTY PRINCIPE: (to witness) . Q: [BBB], do you know accused Ferdinand Navarette? A: Yes, sir. Q: Also named Clement John Ferdinand Navarette? A: Yes, sir. Q: Why do you know Clement John Ferdinand Navarette? A: Because he is the one who did something to me. Q: What do you mean by "umano"? A. He placed his penis into my vagina. (pekpek) Q: How many times? A: Two times, sir. Q: Then he placed his penis to your vagina, what did you feel? A: I felt pain, sir. xxx xxx xxx Q: What else happened after Ferdinand Navarette put his penis twice on your vagina which you told the Court you felt pain? A: He locked me inside the [comfort room] and he took a knife.

Q: Now, when you were inside the Comfort Room and you told the Court that he got a knife, what happened next, if any? A: He stabbed me. Q: Where? A: (Witness pointing the throat.) Q: And when you said "sinaksak" on your throat you mean accused only pointed [to] your throat? xxx xxx xxx COURT: [All right], witness may answer. (Witness pointing to her throat.) Q: And what is the meaning that she wants to convey? ATTY TENEZA: . Witness holding her throat. ATTY PRINCIPE: . Pointing. Very clear. Q: When you pointed your throat, what do you want to convey [with] the word stab? ATTY PRINCIPE: . A. Sinaksak. That is, Your Honor. Because this is her interpretation of pointing the knife. xxx xxx xxx ATTY PRINCIPE: . After the accused locked you in the [comfort room] with the knife, according to you, what happened next, if any? xxx xxx xxx Witness: A: Then I went [out] of the [comfort room] when I heard my mother calling me. ATTY PRINCIPE: (to the witness) . Q: And where was your mother at that time? A : She was outside and waiting for my Kuya [XXX].

Q: When you were called by your mother, according to you, did you approach your mother when hearing that she was calling you? ATTY TENEZA: . It was already answered, Your Honor. ATTY PRINCIPE : . No. COURT: Witness may answer. ATTY PRINCIPE: (to the witness) . Q: And what did you tell your mother, if any? A: I embraced her. Q: After embracing your mother, did you tell [her] something if any? A: She [asked] me [why] I was still watching T.V. when the people of the house were already sleeping. Q: What was your reply to your mama? A: Because I used to watch T.V. [in] that place. Q: Did you report to your mother what Ferdinand Navarette did to you? A: Yes, sir. Q: How did you tell your mother? A. I told my mama "Binastos ako ni Ferdie." Q: How did you relate that you were "binastos ni Ferdie"? A: I told my mama: Mama, Ferdie [placed] his penis on my vagina and then he placed a stick with cotton on my vagina and then he boxed me, on my right side of my eye. Q: How many times were you boxed by Ferdie, the accused? A: Two (2) times, sir.31 The foregoing shows that all the elements of acts of lasciviousness were proved. That BBB was less than twelve years old at the time of the commission of the offense was not disputed. The prosecution established that petitioner intentionally "placed his penis" in BBBs vagina but without any indication that he was able to penetrate her: Victim [BBB] testified that the accused "placed his penis into my vagina" and "[placed] a stick with cotton [in] my vagina" but the [specific] part of her vagina where the penis was placed was not indicated.

xxx xxx xxx The Court cannot [assume] without doing violence to the precious jural yardstick but the prosecution must prove and present clear, positive and conclusive evidence of the act complained of particularly that the penis of the accused gained entrance [in] the labia majora of the organ of the victim. Not even in the medical findings and testimony of the NBI Medico-Legal Officer Dr. Noel Minay who conducted physical/genital examinations on the victim could [we] find support to justify an inference that there was entrance of the male organ of the accused within the labia of pudendum.32 Both lower courts also found that petitioner poked victims vagina with a stick with cotton and watched a pornographic movie with her.33 These acts are undoubtedly acts of lasciviousness or lewdness.34 The elements of sexual abuse under Section 5 (b) of RA 7610 that must be proven in addition to the elements of acts of lasciviousness are as follows: 1. The accused commits the act of sexual intercourse or lascivious conduct. 2. The said act is performed with a child exploited in prostitution or subjected to other sexual abuse. 3. The child, whether male or female, is below 18 years of age. (Emphasis supplied)35 "Lascivious conduct" is defined under Section 2 (h) of the rules and regulations36 of RA 7610 as: [T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person. The aforestated acts of petitioner undeniably amounted to lascivious conduct under this law. Petitioner insists that Section 5 (b) of RA 7610 refers only to those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution and argues that this does not apply in this case since the victim is not a child exploited in prostitution.37 Petitioners argument is untenable. In People v. Larin (and reiterated in several subsequent cases),38 we emphasized that the law covers not only a situation in which a child is abused for profit but also one in which a child, through coercion or intimidation, engages in any lascivious conduct.39 The very title of Section 5, Article III (Child Prostitution and Other Sexual Abuse) of RA 7610 shows that it applies not only to a child subjected to prostitution but also to a child subjected to other sexual abuse. A child is deemed subjected to "other sexual abuse" when he or she indulges in lascivious conduct under the coercion or influence of any adult.40 Here, BBB was sexually abused because she was coerced or intimidated by petitioner (who poked her neck with a knife)41 to indulge in lascivious conduct. Hence, the prosecution was able to prove beyond reasonable doubt that petitioner committed acts of sexual abuse against BBB. The RTC found BBBs testimony to be clear, candid, and straightforward. Her testimony was worthy of belief since she was young and had no ill-motive to falsely testify and impute a serious crime against the accused.42 In cases of acts of lasciviousness, the lone testimony of the offended party, if credible, is sufficient to establish the guilt of the accused.43

Moreover, courts are inclined to lend credence to the testimony of children of tender years. The revelation of an innocent child whose chastity has been abused deserves full credit, as her willingness to undergo the trouble and the humiliation of a public trial is an eloquent testament to the truth of her complaint.44 In so testifying, she could have only been impelled to tell the truth.45 The trial courts evaluation of the testimonies of witnesses is given great respect by the appellate court in the absence of proof that it was arrived at arbitrarily or that the trial court overlooked material facts.46 The rationale behind this rule is that the credibility of a witness can best be determined by the trial court since it has the direct opportunity to observe the candor and demeanor of the witnesses at the witness stand and detect if they are telling the truth or not.47 We will not interfere with the trial courts assessment of the credibility of witnesses. In the face of the serious accusation against him, petitioner could only interpose denial as defense. Denial is an inherently weak defense and cannot prevail over the positive and categorical identification provided by the complainant. Denial, if unsubstantiated by clear and convincing evidence, is a self-serving assertion that deserves no weight in law.48 As between the positive declaration of the prosecution witness and the negative statement of the accused, the former deserves more credence.49 The lower courts also correctly disbelieved the corroborating testimonies of petitioners aunt and sister.50 Petitioner asserts that the RTC should not have given evidentiary weight to the inconsistent and contradictory testimonies of the prosecution witnesses. He urges this Court to apply the Latin maxim falsus in unus, falsus in omnibus (false in part, false in everything). We disagree. We have stated that: [T]he maxim or rule "falsus in [unus], falsus in omnibus" does not lay down a categorical test of credibility. It is not a positive rule of law or of universal application. It should not be applied to portions of the testimony corroborated by other evidence, particularly where the false portions could be innocent mistakes. Moreover, the rule is not mandatory but merely sanctions a disregard of the testimony of a witness if the circumstances so warrant. To completely disregard all the testimony of a witness on this ground, his testimony must have been false as to a material point, and the witness must have a conscious and deliberate intention to falsify a material point.51 Furthermore, it should be borne in mind that even the most candid witness oftentimes makes mistakes and confused statements. Instead of eroding the effectiveness of the evidence, such imperfections and discrepancies in the testimony can in fact be considered as signs of veracity.52 Aside from the fact that it is very difficult to give a mechanical and accurate account of a traumatic and horrifying experience,53 the victim here was a mere five-year old girl when she was put on the witness stand. We should not expect a five-year old child to explain with exact precision the nature of the acts done to her, given her naivet and still undeveloped vocabulary and command of language.54 Despite this limitation, however, the victim never wavered in her claim that petitioner molested her. In sum, we find petitioner guilty beyond reasonable doubt of acts of lasciviousness under Article 336 of the RPC in relation to Section 5 (b), Article III of RA 7610. WHEREFORE, the petition is hereby DENIED. The September 29, 2000 decision of the Court of Appeals affirming the decision of the Regional Trial Court of Valenzuela, Branch 171, in Criminal Case No. 5302-V-96 finding petitioner guilty beyond reasonable doubt of acts of lasciviousness and sentencing him to suffer imprisonment of twelve years and one day of reclusion temporal, as minimum, to sixteen years of reclusion temporal, as maximum, as well as to pay P20,000 moral damages and P10,000 fine is AFFIRMED.

Costs against petitioner. SO ORDERED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 169143 February 2, 2007 [Formerly G.R. No. 138328] PEOPLE OF THE PHLIPPINES, Appellee vs. SIMPLICIO DELANTAR, Appellant. DECISION TINGA, J.: The forfeiture of the right to live free in society is the due requital for peddling a child to sexual servitude. We begin with the antecedents. On 27 August 1996, an information for violation of Section 5, Article III of Republic Act (R.A.) No. 76101 was filed against appellant Simplicio Delantar y Redondo. Docketed as Criminal Case No. 96-91752 of the Regional Trial Court (RTC) of Pasay City, the information was amended on 3 September 1996.3 The accusatory portion of the Amended Information reads: That sometime and during the period from 1994 to August 1996, in Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, SIMPLICIO DELANTAR Y REDONDO, through coercion and influence, did then and there wilfully, unlawfully and feloniously promote, facilitate and induce [AAA],4 a female child below 12 years of age, to indulge in sexual intercourse and lascivious conduct for money, profit and other consideration.1awphi1.net Contrary to [l]aw.5 On 4 September 1996, appellant, assisted by counsel de parte, entered a plea of not guilty and informed the court that he did not want a pre-trial.6 An attempt to quash the information was made but the same proved futile.7 Thereafter, trial proceeded in due course. The prosecution presented the following as witnesses: (1) AAA,8 the complainant; (2) Dr. Emmanuel Aranas9 of the PNP Crime Laboratory; and (3) Carolina Buan10 of the Philippine Long Distance Telephone Co. On 31 January 1997, the prosecution submitted its Formal Offer of Evidence.11 Trial thereafter continued with the defense presenting the following as witnesses: (1) Simplicio Delantar;12 (2) Angelito Entruzo;13 and (3) Eduardo Juarez, Jr.14 On 20 August 1998, the defense rested its case. On 25 February 1999, the RTC-Pasay City, Branch 109, rendered a Decision,15 finding appellant guilty beyond reasonable doubt of two counts of violation of Section 5(a), paragraphs 1, 4 and 5

of Article III of R.A. No. 7610. The trial court arrived at the following principal findings and conclusions, thus: From all the foregoing, the Court opines that the prosecution has proven the guilt of the accused Simplicio Delantar y Redondo beyond reasonable doubt when he delivered his daughter [AAA] to an Arab national by the name of Mr. Hammond from their house at 2165-A P. Burgos St., Pasay City sometime in 1994 selling her in prostitution to the said [A]rab who committed acts of lasciviousness on her person by kissing her on her lips, her breast, her private parts and even rubbing his penis against her private parts which is a clear violation of Section 5(a), paragraph 1, 4, and 5 [of] Article III of R.A. [No.] 7610 and hereby sentences him of Reclusion Perpetua and to pay civil liability to the victim in the amount of P60,000.00. Likewise, the Court finds accused guilty beyond reasonable doubt for violation of Section 5(a) paragraph 1, 4, and 5 of Article III of R.A. [No.] 7610 when the accused Simplicio Delantar pimped and delivered the complainant, an eleven (11) year old minor to Congressman Romeo Jalosjos of the First District of Zamboanga del Norte at the Ritz Tower in Makati where the said Congressman for eight (8) times committed acts of lasciviousness on her person when he kissed her on her lips, private organ and even raped her. That all these times, the accused brought his child from their residence at 2165-A P. Burgos St., Pasay City and [the Court] hereby sentences him to Reclusion Perpetua and to pay the victim civil liability in the amount of P60,000.00. SO ORDERED.16 Appellant interposed an appeal with this Court. After submission of the parties briefs, on 20 September 2004, this Court through the Second Division then transferred the appeal to the Court of Appeals for appropriate action and disposition.17 On 31 May 2005, the Court of Appeals rendered a Decision18 affirming with modification the trial courts Decision. The appellate court ruled in the dispositive portion, thus: WHEREFORE, the appealed decision, finding appellant Simplicio Delantar guilty beyond reasonable doubt of Violation of Section 5(a), paragraph[s] 1, 4 and 5, Article III of R.A. No. 7610, for one count only, is AFFIRMED with the MODIFICATION that he is also sentenced to pay complainant [AAA] the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages and P25,000.00 as exemplary damages. Costs against appellant. SO ORDERED.19 On 23 June 2005, appellant, through counsel, filed a Notice of Appeal from the Decision of the Court of Appeals to this Court.20 On 21 July 2005, the Court of Appeals gave due course to the Notice of Appeal and elevated the records of the case to this Court for purposes of the appeal.21 In his Brief,22 appellant assigns the following errors committed by the trial court: I THE TRIAL COURT ERRED IN CONVICTING [APPELLANT] OF THE CRIME CHARGED DESPITE THE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. II THE TRIAL COURT ERRED IN CONVICTING [APPELLANT] OF TWO (2) VIOLATIONS OF SECTION 5, ARTICLE III, R.A. [NO.] 7610 DESPITE THE FACT THAT ONLY A SINGLE INFORMATION WAS FILED BY THE 2nd ASSISTANT CITY PROSECUTOR OF PASAY CITY .

III THE TRIAL COURT ERRED IN IMPOSING THE PENALTY FOR THE CRIME CHARGED IN ITS MAXIMUM PERIOD (RECLUSION PERPETUA) WHEN THERE IS NO SHOWING IN ITS DECISION [OF] THE ATTENDANCE OF A QUALIFYING CIRCUMSTANCE WHICH WOULD WARRANT THE IMPOSITION OF THE MAXIMUM PENALTY .23 Of the issues raised by appellant in his brief, we only have to resolve the first and the third issues since the Court of Appeals has already upheld the second contention which is that he should only be convicted of one violation24 and also since a reversal of the ruling would constitute double jeopardy. In any event, we fully agree with the appellate courts adjudication.25 Appellant stands charged of violating Section 5, Article III of R.A. No. 7610, which provides: ARTICLE III. CHILD PROSTITUTION AND OTHER SEXUAL ABUSE SEC. 5. Child Prostitution and Other Sexual Abuse.Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: (a) Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited to, the following: (1) Acting as a procurer of a child prostitute; (2) Inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means; (3) Taking advantage of influence or relationship to procure a child as a prostitute; (4) Threatening or using violence towards a child to engage him as a prostitute; or (5) Giving monetary consideration, goods or other pecuniary benefit to a child with the intent to engage such child in prostitution. (b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse: Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; and (c) Those who derive profit or advantage therefrom, whether as manager or owner of the establishment where the prostitution takes place or of the sauna, disco, bar, resort, place of entertainment or establishment serving as a cover or which engages in prostitution in addition to the activity for which the license has been issued to said establishment. In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof as,

excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind.26 There is no doubt, drawing from the evidence, that AAA was a child who was exploited in prostitution as defined in Section 5, Article III quoted above. The law punishes not only the person who commits the acts of sexual intercourse or lascivious conduct with the child but also those who engage in or promote, facilitate or induce child prostitution. Appellant is one such person. The testimony of AAA shows that appellant procured her as a child prostitute for at least two clients: the first, an Arab national named Mr. Hammond and the second, then Congressman Romeo Jalosjos. AAA testified that she was brought to the first client at least eleven (11) times between the period 1994 to June 1996.27 On each of these occasions, appellant and AAA would go to Ralph Anthony Suites in Manila where the client stayed. Appellant would tell AAA that they had to go to the client because they needed to pay some obligations,28 they had to settle something,29 they had to pay the electric bill,30 or they had to ask for money for AAAs tuition fees.31 Upon their arrival at Ralph Anthony Suites, appellant would talk to the client for a few minutes and then leave AAA alone with the client. Money was usually given by the client to appellant who would leave on the pretext of buying something from Robinsons, a nearby mall. When he returned, usually after two (2) to four (4) hours, appellant would have something for AAA such as food and clothes. Once left alone with AAA, the client would perform lascivious acts on AAA. With the sordid details spread all over the transcript of AAAs testimony as she gave it before the trial court, the recurrent salient points of her harrowing experience revolved around the clients kissing her, touching her breasts, embracing her, and inserting his finger in her private parts. 32 On one occasion, the client even tried to insert his penis inside AAAs vagina but the latter pleaded for him not to. The client thereafter rubbed his penis on AAAs vagina. On the same occasion, the client made AAA sit on him near his groin while his penis was fully erect. The client then made pumping motions while his organ was touching AAAs vagina until "his penis got wet."33 After their first visit to the client, AAA told appellant that she did not want to go back because the client was "bastos." Appellant promised her that they would no longer go back but the promise was broken as they went back a few more times.34 AAA continued to complain to appellant about the acts committed on her by the first client but appellant would dismiss the same saying that if the clients private part is not inserted in AAAs private part, there is nothing wrong about it,35 or that since there was no penetration, there was nothing wrong about it.36 Sometime in June 1996, AAA told appellant that she did not want to go to the client anymore. On that day, AAA and appellant went to Harrison Plaza where appellant instructed AAA to call the client and tell the latter that if he would not give them P5000, they would not go there anymore. AAA complied and told the client exactly what appellant had told her. The client responded by saying that he would only give them P5,000.00 if AAA would have sexual intercourse with him. They did not go to this client anymore.37 Appellant thereafter started to bring AAA to the second client. As with the first client, appellant would tell AAA that they had to go to the second client because they had obligations to pay such as the telephone bill, electric bill, rent, and tuition fees.38 During each of these visits, the client would give AAA money ranging from P2,000.00 to P10,000.00.39 The details of what transpired when AAA was left alone with the second client were vividly recounted in People v.

Jalosjos,40 where the second client was convicted of two (2) counts of rape and six (6) counts of acts of lasciviousness, all committed against AAA on various dates. In the case, the Court found that it was appellant who brought AAA to said client. The Court in that case even referred to appellant as the second clients "suking bugaw."41 From her testimony, it could easily be gleaned that AAA did not consent to the acts of lasciviousness and the sexual intercourse. After their initial visit to the first client, AAA pointedly told appellant that she did not want to go back because the client was "bastos" but appellant did not mind this and continued to bring AAA to the first client still.42 AAA persisted in complaining but appellant would dismiss the remonstration, saying that if the clients private parts are not inserted in AAAs private parts, there is nothing wrong about it,43 or that since there was no penetration, there was nothing wrong about it.44 Appellant succeeded in infusing AAA with intense fear and awe of him. She was afraid that appellant might send her away if she did not obey him.45 She was scared of him also because when he got angry, he would pull her and her brothers hair, whip them very hard, slap them, hit them on the upper arm with a hanger, box them on the arms, bite them or even make them kneel on salt with outstretched hands.46 Appellant even hit AAA with the telephone apparatus a number of times, the last time was on 15 August 1996, the day before she ran away to escape, and only because she had forgotten to call the second client.47 It was this dread of appellant that pushed AAA to still go with him to the clients even if she did not want what was being done to her by whoever was the client once she was left alone with him. Further, appellant instilled the feeling of guilt and helplessness in AAA by constantly saying that they had to pay some obligations,48 they had to settle something,49 they had to pay the electric bill,50 or they had to ask for money for AAAs tuition fees.51 Verily, it was against AAAs will and consent to see the two clients. But even if AAA had in fact consented, appellant may still be prosecuted for child prostitution under Section 5, Article III of R.A. No. 7610 because the childs consent or lack of it is not an element of the offense. As held by this Court in People v. Larin,52 a child is deemed exploited in prostitution or subjected to other sexual abuse, when the child indulges in sexual intercourse or lascivious conduct (a) for money, profit, or any other consideration; or (b) under the coercion or influence of any adult, syndicate or group.53 If AAA was not coerced into child prostitution under (b) above, she definitely was influenced by appellant to enter into said activity. As the person who had raised and taken care of AAA, appellant had moral ascendancy over AAA. This moral ascendancy coupled with AAAs fear and awe of appellant and her exposure to the world of prostitution at the early age of five had exerted a dominating influence on her being. Further, AAA was doing it so that they could have money to meet their several needs, including her own tuition fees. This engendered in AAA sufficient "consideration" under (a) above to engage or agree to be exploited in prostitution because after every encounter with the clients, AAA would receive either money (ranging from P2,000.00 to P10,000.00) or food and clothing. Aside from the testimony of AAA, the record is replete with evidence of appellants liability beyond reasonable doubt. The testimony of Dr. Emmanuel L. Aranas, Medico Legal Officer of the PNP Crime Laboratory, who conducted a medical examination on AAA on 23 August 1996, as well as the Medico Legal Report54 that he prepared showed that, at the time of physical examination, AAA was in a non-virgin state physically and that her hymen had a shallow healed laceration at 3 oclock position and a deep healed laceration at 8 oclock position. Dr. Aranas testified that the lacerations could be caused by the entry either of a finger or an erect male organ a week or more prior to the date of the examination.55 This testimony proves that AAA was subjected either to lascivious conduct or sexual intercourse before the medical examination.

Witness Carolina Buan, for her part, testified that several calls were made from appellants phone to the second client.56 Exhibits I to I-15-A and J to J-20, as well as appellants own admission that he was the subscriber of telephone number 831-242357 and that he is the "S. Delantar" indicated in the telephone bill,58 establish a connection between appellant and the second client. This connection in turn forged the regularity which characterized the communication between the two, indeed the situation that normally obtains between a regular client and a "suking bugaw." Appellant, in his brief, does not deny that he brought AAA to the clients.59 He, however, attempts to exculpate himself by stating that he did not coerce or influence AAA to go to the two clients to be exploited in prostitution. 60 Appellant further claims that there is no showing that he made promises to AAA either by assuring her that he would give her money or anything to convince her to go with him to the clients. He even seeks to discredit AAA for not attempting to object to be brought to the first client despite her previous experience in several encounters with him. This absence of any objection on the part of AAA, so appellant insists, is proof that she was brought to the client of her own free will, and at the same time militates against any finding that appellant had coerced or influenced AAA to go to the client.61 Also, according to appellant, AAA herself admitted she had already known, by their second visit, that she was being pimped to the first client.62 Appellant likewise dismisses AAAs fear that he would send her away should she refuse to go to the clients as a mere conclusion or presumption from AAAs end because at no time did appellant actually tell her to go away.63 In the same vein, AAAs fear that appellant would get angry if she refused to go with him to the clients is merely imaginary or conjectural.64 Appellant even cites excerpts from AAAs testimony to the effect that he only laid hands on AAA only for the purpose of disciplining her.65 Appellants testimony itself contains an admission that he had indeed brought AAA to the two clients. He admitted that even in his presence, questions about AAAs pretty legs and breast size were propounded.66 Certainly, he cannot deny knowledge that the persons who propounded the questions had lewd designs on AAA. These are questions laced with lecherousness and drenched in perversity especially when asked of a child. Worse, after such questions were propounded, appellant left AAA alone with the clients who in the first place had inquired about AAAs legs and breasts. Appellant even admitted that in one instance the person who shot the questions to him even placed his hands on the breasts of AAA.67 Appellant claims that he was promoting AAAs prospective career as an actress. Appellants clear intention to pimp or promote AAA as a child prostitute to the second client cannot be concealed in the guise of a move to help AAA to realize her ambition to become an actress. AAAs acting skills may not be measured or determined by a picture of her in a bikini.68 There is no profound connection between acting skills and nudity. Appellants recourse to the testimony of the other two witnesses is likewise vain and futile. Angelito Entruzo testified that after appellant had adopted AAA, he took good care of her by providing for her needs such as food, clothing, shelter and education.69 This testimony, while making appellant look benevolent, has actually worked to his detriment because it further shows his dark side as a person on whom a child had depended but who abused the situation of dependency. Ed Juares, Jr., on the other hand, merely testified that appellant had brought AAA to him to make her an actress. The claim does not rule out the finding that appellant had engaged in child prostitution. We reject appellants avowals of innocence. We affirm the verdict of guilt. Doubtlessly, appellant had repeatedly pandered AAA to two clients for sexual gratification. He procured paying customers for her sexual services. The acts done on AAA by the two clients ranged from "lascivious conduct" defined under the Implementing Rules and Regulation of R.A.

No. 7610, as "the intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person," and statutory rape, under Art. 335, paragraph 3 of the Revised Penal Code, as amended by R.A. No. 7659. Appellants violation of Sec. 5, Art. III of R.A. No. 7610 is as clear as day. The provision penalizes anyone who engages in or promotes, facilitates or induces child prostitution either by: (1) acting as a procurer of a child prostitute; or (2) inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means; or (3) by taking advantage of influence or relationship to procure a child as a prostitute; or (4) threatening or using violence towards a child to engage him as a prostitute; or (5) giving monetary consideration, goods or other pecuniary benefits to the child with the intent to engage such child in prostitution. The purpose of the law is to provide special protection to children from all forms of abuse, neglect, cruelty, exploitation and discrimination, and other conditions prejudicial to their development.70 A child exploited in prostitution may seem to "consent" to what is being done to her or him and may appear not to complain. However, we have held that a child who is "a person below eighteen years of age or those unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of their age or mental disability or condition" is incapable of giving rational consent71 to any lascivious act or sexual intercourse. In fact, the absence of free consent is conclusively presumed when the woman is below the age of twelve.72 Appellant, whom AAA had looked up to as her father, had the duty to care for and bring her up. Far from looking after her moral character, mental state and physical well-being, he had actually facilitated her debasement by introducing her to clients and inducing her to engage in prostitution. Abusing the moral ascendancy he had over her, he exposed her to prostitution at a very tender age, made her feel it was her obligation to earn money for their family, in a detestable manner at that, and callously impressed upon her that there was nothing wrong with what the clients had been doing to her. At days end, he raked in the money that his corruption of the child had brought in. The penalty prescribed by Section 5 of R.A. No. 7610 is reclusion temporal in its medium period to reclusion perpetua. However, it was not proven that appellant is the parent or guardian of AAA. The establishment of either relationship would have justified the imposition of the penalty provided in the law in its maximum. Thus, there being neither mitigating nor aggravating circumstance, the penalty which could properly be imposed is reclusion temporal in its maximum period, the medium of the penalty prescribed by the law. After applying the Indeterminate Sentence Law, the proper imposable penalty is an indeterminate sentence the maximum term of which shall be that which could properly be imposed (reclusion temporal in its maximum period), and the minimum of which shall not be less than the minimum term prescribed by the law (reclusion temporal in its medium period).73 Section 31(c), Article XII of R.A. No. 7610 states: xxxx (c) The penalty provided herein shall be imposed in its maximum period when the perpetrator is an ascendant, parent, guardian, stepparent or collateral relative within the second degree of consanguinity or affinity, or a manager or owner of an establishment which has no license to operate or its license has expired or has been revoked. (Emphasis supplied.)

Under R.A. No. 7610, Sec. 31(c), relationship is not a qualifying circumstance but only an ordinary generic aggravating circumstance. Thus, although it was not alleged in the information it can nevertheless be taken into account in fixing the penalty for the crime because it was proven.74 A generic aggravating circumstance provides for the imposition of the prescribed penalty in its maximum period, while a qualifying circumstance changes the nature of the crime.75 In the case at bar, the only evidence presented to establish AAAs alleged relationship to appellant is her birth certificate76 which mentions appellant as the father. However, said document does not bear appellants signature. In fact, appellant, in his testimony, denied that he is AAAs father.77 He claimed that, sometime in 1983, AAA was brought to him by a certain Salvacion Buela, AAAs real mother, who could not support her.78 Salvacion Buela told appellant that AAA was born on 11 May 1983 and that her natural father was a Japanese national.79 As prepared, the birth certificate indicates that AAA was born on "11 May 1985" to "Librada A. Telin" (mother) and "Simplicio R. Delantar" (father) who were married on "14 February 1977" in "Manila." The legible signature which reads "Librada T. Delantar" appears below the printed item "INFORMANT" and above the typewritten name "Librada T. Delantar" and word "Mother." However, nowhere on the face of the birth certificate can the signature of appellant be found. According to appellant, Librada A. Telin is his sister and they did not get married to each other on the date indicated in the birth certificate, or impliedly at least, not ever. While under the Family Code, filiation can be established by, among others, the record of birth appearing in the civil register,80 yet the rule is where the birth certificate presented was not signed by the father against whom filiation is asserted, such may not be accepted as evidence of the alleged filiation. In Angeles v. Maglaya,81 we held: x x x Such certificate, albeit considered a public record of a private document is, under Section 23, Rule 132 of the Rules of Court, evidence only of the fact which gave rise to its execution: the fact of birth of a child. Jurisprudence teaches that a birth certificate, to be considered as validating proof of paternity and as an instrument of recognition, must be signed by the father and mother jointly, or by the mother alone if the father refuses. x x x82 In Angeles v. Maglaya, we refused to give evidentiary weight to the birth certificate as proof of filiation in a case for settlement of estate to support a claim of legitimacy because the same was unsigned by the alleged father. With more reason we should not accord value to the birth certificate in this case considering that its effect would be to increase the penalty to be imposed on the appellant. This is a criminal case wherein an interpretation unfavorable to the accused is generally unacceptable. The Solicitor General cites this Courts pronouncement in Heirs of Cabais v. Court of Appeals,83 that "[a] birth certificate, being a public document, offers prima facie evidence of filiation and a high degree of proof is needed to overthrow the presumption of truth contained in such public document."84 The pronouncement is not applicable to this case. It was made merely as an elucidation of the limited evidentiary value of a baptismal certificate in this jurisdiction vis--vis a birth certificate. In that case, presented was the baptismal certificate of the person whose filiation was sought to be established. The birth certificate itself was not presented. In the case at bar, the birth certificate of AAA was presented. We thus hold that the birth certificate of AAA is prima facie evidence only of the fact of her birth and not of her relation to appellant. After all, it is undisputed that appellant is not AAAs biological father. At best, appellant is AAAs de facto guardian. Now, would this circumstance justify the imposition of the higher penalty on him? We think not. We apply, by analogy, the ruling of this Court in People v. Garcia,85 where we held that the restrictive concept of guardian, legal or judicial, is required by Sec. 11 of R.A. No. 7659. Said provision, by way of amending Art. 335 of the Revised Penal Code, ordains that where the victim of the crime of rape is under eighteen years of age

and the offender is, inter alia, a guardian of the victim, the death penalty shall be imposed. We ruled: The law requires a legal or judicial guardian since it is the consanguineous relation or the solemnity of judicial appointment which impresses upon the guardian the lofty purpose of his office and normally deters him from violating its objectives. Such considerations do not obtain in appellants case or, for that matter, any person similarly circumstanced as a mere custodian of a ward or anothers property. The fiduciary powers granted to a real guardian warrant the exacting sanctions should he betray the trust.86 Further, according to the maxim noscitur a sociis, the correct construction of a word or phrase susceptible of various meanings may be made clear and specific by considering the company of words in which it is found or with which it is associated.87 Section 31(c) of R.A. No. 7610 contains a listing of the circumstances of relationship between the perpetrator and the victim which will justify the imposition of the maximum penalty, namely when the perpetrator is an "ascendant, parent, guardian, stepparent or collateral relative within the second degree of consanguinity or affinity." It should be noted that the words with which "guardian" is associated in the provision all denote a legal relationship. From this description we may safely deduce that the guardian envisioned by law is a person who has a legal relationship with a ward. This relationship may be established either by being the wards biological parent (natural guardian) or by adoption (legal guardian). Appellant is neither AAAs biological parent nor is he AAAs adoptive father. Clearly, appellant is not the "guardian" contemplated by law. On the award of indemnity and damages, we delete the Court of Appeals award of civil indemnity because appellant was not the one who committed the lascivious acts and perpetrated the rape of AAA. Instead, we impose a fine which shall be administered as a cash fund by the Department of Social Welfare and Development and disbursed for the rehabilitation of AAA, pursuant to Section 31 (f), Article XII, R.A. No. 7610. Likewise, the award of exemplary damages is improper considering that appellant is not AAAs biological father. WHEREFORE, premises considered, the 31 May 2005 Decision of the Court of Appeals in CA-G.R. CR H.C. No. 00977 is hereby AFFIRMED WITH MODIFICATION. Appellant SIMPLICIO DELANTAR y REDONDO is found guilty of one count of violation of Section 5(a), R.A. No. 7610. He is sentenced to suffer the indeterminate sentence of fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as maximum, and to pay a fine in the sum of P20,000.00 to be administered as a cash fund by the Department of Social Welfare and Development and disbursed for the rehabilitation of AAA,88 and P50,000.00 as moral damages. SO ORDERED. RA 9344 FIRST DIVISION

RENNIE DECLARADOR, Petitioner,

G.R. No. 159208

Present:

- versus PANGANIBAN, C.J., Chairperson, YNARES-SANTIAGO, AUSTRIA-MARTINEZ, CALLEJO, SR., and HON. SALVADOR S. GUBATON, Presiding Judge, Branch 14, Roxas City, and FRANK BANSALES, Respondents. August 18, 2006 Promulgated: CHICO-NAZARIO, JJ.

x-----------------------------------------------------------------------------------------x

DECISION

CALLEJO, SR., J.:

This is a Petition for Certiorari seeking to nullify the portion of the Decision[1] of the Regional Trial Court (RTC), Roxas City, Branch 14, in Criminal Case No. C-1419-10-2002, suspending the sentence of respondent Frank Bansales and ordering his commitment to the Regional Rehabilitation Center for Youth at Concordia, Nueva Valencia, Guimaras.

Frank Bansales was born on June 3, 1985. He was a student at the Cabug-Cabug National High School in President Roxas, Capiz. At around 9:45 a.m. on July 25, 2002, Yvonne Declarador was stabbed to death. After conducting the autopsy on the cadaver, Rural Health Physician Pilar Posadas prepared a Post-Mortem Certificate indicating that the victim sustained 15 stab wounds on different parts of the body.[2]

On October 10, 2002, an Information charging Frank Bansales with murder was filed by the Assistant Provincial Prosecutor with the Family Court. The accusatory portion reads:

That on or about 9:45 oclock in the morning of July 25, 2002, inside a classroom in Cabug-Cabug National High School in President Roxas, Capiz, Philippines, and within the jurisdiction of this Honorable Court, the accused armed with a knife and with intent to kill, did then and there, willfully, unlawfully and feloniously attack, assault and stab with the said knife [his] teacher, one YVONNE DECLARADOR, thereby hitting and inflicting upon the latter multiple fatal stab wounds in the different parts of the body which caused the immediate death of the said Yvonne Declarador.

The crime was committed with the attendance of the qualifying aggravating circumstances of evident premeditation and abuse of superior strength considering that the attack was made by the accused using a long knife which the latter carried along with him from his house to the school against his lady teacher who was unarmed and defenseless at that time and by inflicting upon the latter about fifteen (15) fatal knife wounds resulting to her death.[3]

In view of the plea of the accused and the evidence presented, the RTC rendered judgment on May 20, 2003 finding Bansales guilty of murder. However, the court suspended the sentence of the accused and ordered his commitment to the Regional Rehabilitation for Youth at Concordia, Nueva Valencia, Guimaras. The dispositive portion of the decision reads:

In view of the Plea of Guilty by the accused and the evidence presented by the prosecution, the court finds CICL Frank Bansales GUILTY beyond reasonable doubt of the crime of Murder being charged. Being a minor, 17 years of age at the time of the commission of the offense charged, he is entitled to a special mitigating circumstance of minority, and is sentenced to suffer an indeterminate imprisonment of twelve (12) years and one (1) day to seventeen (17) years and four (4) month of reclusion temporal and to pay the heirs of Yvonne Declarador, a civil indemnity of Seventy-Five Thousand Pesos (P75,000.00), Fifty Thousand Pesos (P50,000.00) for moral damages, Forty-Three Thousand Pesos (P43,000.00) for funeral expenses, attorneys fee of One Hundred Thousand Pesos (P100,000.00) and unearned income of One Million Three Hundred Seventy Thousand Pesos and Seventy Centavos (P1,370,000.70).

The parents (father and mother of juvenile Frank Bansales) and his teacher-in-charge at the Cabug-Cabug National High School of President Roxas, Capiz, are jointly subsidiarily liable in case of insolvency, as the crime was established to have been committed inside the classroom of Cabug-Cabug National High School and during school hours.

Pursuant to the provision of P.D. 603, as amended, the sentence is suspended and the Child in conflict with the law (CICL), Frank Bansales is ordered committed to the Regional Rehabilitation Center for Youth at Concordia, Nueva Valencia, Guimaras.

Furnish copies of this decision the Office of the Provincial Prosecutor, the Private Prosecutors, the DSWD Capiz Provincial Office, Roxas City, the Regional Rehabilitation for Youth, Concordia, Guimaras, the accused and his counsel, Atty. Ramcez John Honrado.

SO ORDERED.[4]

On June 2, 2003, the RTC set a preliminary conference for 10:00 a.m. of June 10, 2003 with the Public Prosecutor, the Social Welfare Officer of the court, and the Officer-in-Charge of the Regional Rehabilitation Center for Youth, considering that the accused would turn 18 on June 3, 2003.[5]

Rennie Declarador, the surviving spouse of the deceased, filed a petition for certiorari under Rule 65 of the Rules of Court assailing that portion of the decision of the trial courts decision suspending the sentence of the accused and committing him to the rehabilitation center.

Petitioner claimed that under Article 192 of Presidential Decree (P.D.) No. 603, as well as A.M. No. 02-1-18-SC (otherwise known as the Rule on Juveniles in Conflict with the Law), the benefit of a suspended sentence does not apply to a juvenile who is convicted of an offense punishable by death,[6] reclusion perpetua or life imprisonment. Citing the ruling of this Court in People v. Ondo,[7] petitioner avers that since Bansales was charged with murder punishable by reclusion perpetua to death, he is disqualified from availing the benefits of a suspended sentence.

In his Comment, Bansales avers that petitioner has no standing to file the petition, considering that the offense charged is a public crime brought in the name of the People of the Philippines; only the Office of the Solicitor General (OSG) is authorized to file a petition in court assailing the order of the RTC which suspended the service of his sentence. He further avers that Section 32 of A.M. No. 02-1-18-SC entitles the accused to an automatic suspension of sentence and allows the court to commit the juvenile to the youth center; hence, the court did not abuse its discretion in suspending the sentence of the accused.

In reply, petitioner maintains that he has sufficient personality to file the petition.

The OSG, for its part, posits that respondents sentence cannot be suspended since he was charged with a capital offense punishable by reclusion perpetua to death. It insists that the entitlement of a juvenile to a suspended sentence does not depend upon the sentence actually imposed by the trial court but upon the imposable penalty for the crime charged as provided for by law.

The issues for resolution are the following: (1) whether petitioner has standing to file the petition; (2) whether petitioner violated the doctrine of hierarchy of courts in filing his petition with this Court; and (3) whether respondent court committed grave abuse of discretion amounting to excess or lack of jurisdiction in ordering the suspension of the sentence of respondent Bansales and his commitment to the Regional Rehabilitation Center for the Youth.

The petition is granted.

On the first issue, we rule for the petitioner. Being the surviving spouse of the deceased and the offended party, he has sufficient personality to file the instant special civil action for certiorari.[8] This is in line with the underlying spirit of the liberal construction of the Rules of Court in order to promote their object.[9] Moreover, the OSG has filed its comment on the petition and has joined the petitioner in his plea for the nullification of the assailed portion of the RTC decision.

On the second issue, the rule is that a petition for review on certiorari which seeks to nullify an order of the RTC should be filed in the Court of Appeals in aid of its appellate jurisdiction.[10] A direct invocation of the original jurisdiction of the Court to issue writs of certiorari may be allowed only when there are special and important reasons therefor clearly and specifically set out in the petition.[11] This is an established policy necessary to prevent inordinate demands upon this Courts time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further overcrowding of the Courts docket.[12]

However, in Fortich v. Corona,[13] the Court held that considering the nature and importance of the issues raised and in the interest of speedy justice, and to avoid future litigations, the Court may take cognizance of a petition for certiorari directly filed before it.[14] Moreover, this Court has suspended its own rules and excepted a particular case from their operation whenever the interests of justice so require.

In this case, we resolve to take cognizance of the case, involving as it does a juvenile and the application of the Rule on Juveniles in Conflict with the Law.

The charge against respondent Bansales was murder with the qualifying circumstance of either evident premeditation or abuse of superior strength. Under Article 248 of the Revised

Penal Code, as amended by Republic Act (Rep. Act) No. 7659, the imposable penalty for the crime is reclusion perpetua to death. The trial court found him guilty of murder.

Article 192 of P.D. No. 603, as amended, provides:

Art. 192. Suspension of Sentence and Commitment of Youthful Offender. If after hearing the evidence in the proper proceedings, the court should find that the youthful offender has committed the acts charged against him, the court, shall determine the imposable penalty, including any civil liability chargeable against him. However, instead of pronouncing judgment of conviction, the court, upon application of the youthful offender and if it finds that the best interest of the public, as well as that of the offender will be served thereby, may suspend all further proceedings and commit such minor to the custody or care of the Department of Social Welfare and Development or to any training institution operated by the government or any other responsible person until he shall have reached twenty-one years of age, or for a shorter period as the court may deem proper, after considering the reports and recommendations of the Department of Social Welfare and Development or the government training institution or responsible person under whose care he has been committed.

Upon receipt of the application of the youthful offender for suspension of his sentence, the court may require the Department of Social Welfare and Development to prepare and submit to the court a social case study report over the offender and his family.

The youthful offender shall be subject to visitation and supervision by the representative of the Department of Social Welfare and Development or government training institution as the court may designate subject to such conditions as it may prescribe.

The benefits of this article shall not apply to a youthful offender who has once enjoyed suspension of sentence under its provisions or to one who is convicted for an offense punishable by death or life imprisonment or to one who is convicted for an offense by the Military Tribunals.

The law was reproduced in A.M. No. 02-1-18-SC where, except for those under paragraph 3, Section 32 of the law, the sentence of the accused is automatically suspended:

Sec. 32. Automatic Suspension of Sentence and Disposition Orders. The sentence shall be suspended without need of application by the juvenile in conflict with the law. The court shall set the case for disposition conference within fifteen (15) days from the promulgation of sentence which shall be attended by the social worker of the Family Court, the juvenile, and his parents or guardian ad litem. It shall proceed to issue any or a combination of the following disposition measures best suited to the rehabilitation and welfare of the juvenile: care, guidance,

and supervision orders; Drug and alcohol treatment; Participation in group counseling and similar activities; Commitment to the Youth Rehabilitation Center of the DSWD or other centers for juvenile in conflict with the law authorized by the Secretary of DSWD.

The Social Services and Counseling Division (SSCD) of the DSWD shall monitor the compliance by the juvenile in conflict with the law with the disposition measure and shall submit regularly to the Family Court a status and progress report on the matter. The Family Court may set a conference for the evaluation of such report in the presence, if practicable, of the juvenile, his parents or guardian, and other persons whose presence may be deemed necessary.

The benefits of suspended sentence shall not apply to a juvenile in conflict with the law who has once enjoyed suspension of sentence, or to one who is convicted of an offense punishable by death, reclusion perpetua or life imprisonment, or when at the time of promulgation of judgment the juvenile is already eighteen (18) years of age or over.

Thus, it is clear that a person who is convicted of an offense punishable by death, life imprisonment, or reclusion perpetua is disqualified from availing the benefits of a suspended sentence. Punishable is defined as deserving of, or capable, or liable to punishment; liable to be punished; may be punished; liable to punishment.[15] The word punishable does not mean must be punished, but liable to be punished as specified.[16] In U.S. v. Villalon,[17] the Court defined punishable as deserving of, or liable for, punishment. Thus, the term refers to the possible, not to the actual sentence. It is concerned with the penalty which may be, and not which is imposed.

The disqualification is based on the nature of the crime charged and the imposable penalty therefor, and not on the penalty imposed by the court after trial. It is not the actual penalty imposed but the possible one which determines the disqualification of a juvenile.[18] Despite the disqualification of Bansales, respondent Judge, nevertheless, ordered the suspension of the sentence meted against him. By this act, respondent Judge committed grave abuse of discretion amounting to excess of jurisdiction.

We note that, in the meantime, Rep. Act No. 9344 took effect on May 20, 2006. Section 38 of the law reads:

SEC. 38. Automatic Suspension of Sentence. Once the child who is under eighteen (18) years of age at the time of the commission of the offense is found guilty of the offense charged, the court shall determine and ascertain any civil liability which may have resulted from the offense committed. However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended sentence, without need of application: Provided, however, That suspension of sentence shall still be applied even if the juvenile is already eighteen (18) years of age or more at the time of the pronouncement of his/her guilt.

Upon suspension of sentence and after considering the various circumstances of the child, the court shall impose the appropriate disposition measures as provided in the Supreme Court on Juveniles in Conflict with the Law.

The law merely amended Article 192 of P.D. No. 603, as amended by A.M. No. 02-1-18-SC, in that the suspension of sentence shall be enjoyed by the juvenile even if he is already 18 years of age or more at the time of the pronouncement of his/her guilt. The other disqualifications in Article 192 of P.D. No. 603, as amended, and Section 32 of A.M. No. 02-1-18-SC have not been deleted from Section 38 of Rep. Act No. 9344. Evidently, the intention of Congress was to maintain the other disqualifications as provided in Article 192 of P.D. No. 603, as amended, and Section 32 of A.M. No. 02-1-18-SC. Hence, juveniles who have been convicted of a crime the imposable penalty for which is reclusion perpetua, life imprisonment or reclusion perpetua to death or death, are disqualified from having their sentences suspended.

Case law has it that statutes in pari materia should be read and construed together because enactments of the same legislature on the same subject are supposed to form part of one uniform system; later statutes are supplementary or complimentary to the earlier enactments and in the passage of its acts the legislature is supposed to have in mind the existing legislations on the subject and to have enacted the new act with reference thereto.[19] Statutes in pari materia should be construed together to attain the purpose of an expressed national policy.[20]

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Order of the respondent Judge suspending the sentence of respondent Frank Bansales is NULLIFIED.

SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 169641 September 10, 2009

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. RICHARD O. SARCIA, Accused-Appellant. DECISION

LEONARDO-DE CASTRO, J.: On automatic review is the decision1 dated July 14, 2005 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 00717 which affirmed, with modifications, an earlier decision2 of the Regional Trial Court (RTC) of Ligao City, Branch 13, in Criminal Case No. 4134, finding herein accused-appellant Richard O. Sarcia alias "Nogi" guilty beyond reasonable doubt of the crime of rape3 committed against AAA,4 and sentenced him to suffer the penalty of Reclusion Perpetua and to pay the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages, and the cost of the suit. However, the CA modified the penalties imposed by the RTC by imposing the death penalty, increasing the award of civil indemnity to P75,000.00, and awarding P25,000.00 as exemplary damages, aside from the P50,000.00 for moral damages. The crime of rape was allegedly committed sometime in 1996 against AAA, a five (5) year old girl. After almost four (4) years, AAAs father filed a complaint5 for acts of lasciviousness against herein accused-appellant on July 7, 2000. Upon review of the evidence, the Office of the Provincial Prosecutor at Ligao, Albay upgraded the charge to rape.6 The Information7 dated September 5, 2000 reads: That sometime in 1996 at Barangay Doa Tomasa, Municipality of Guinobatan, Province of Albay, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd and unchaste design, and by means of force, threats and intimidation, did then and there willfully, unlawfully and feloniously have sexual intercourse with [AAA], who was then 6 years of age, against her will and consent, to her damage and prejudice. ACTS CONTRARY TO LAW. At his arraignment on October 25, 2000, accused-appellant, with the assistance of his counsel, entered a plea of not guilty.8 Thereafter, trial on the merits ensued. The prosecution presented the oral testimonies of the victim AAA; her minor cousin; her father; and Dr. Joana Manatlao, the Municipal Health Officer of Guinobatan, Albay. The defense presented the accused-appellant himself, who vehemently denied committing the crimes imputed to him and Manuel Casimiro, Clerk of Court II of the Municipal Trial Court at Guinobatan, Albay. On January 17, 2003, the trial court rendered its Decision9 finding the accused-appellant guilty of the crime of rape and imposed the penalty mentioned above. The record of this case was forwarded to this Court in view of the Notice of Appeal filed by the accused- appellant.10 Accused-appellant filed his Appellants Brief11 on July 15, 2004, while the People, through the Office of the Solicitor General, filed its Appellees Brief12 on December 15, 2004. Pursuant to our pronouncement in People v. Mateo,13 modifying the pertinent provisions of the Revised Rules on Criminal Procedure insofar as they provide for direct appeals from the RTC to this Court in cases in which the penalty imposed by the trial court is death, reclusion perpetua or life imprisonment, and the Resolution dated September 19, 1995 in "Internal Rules of the Supreme Court," the case was transferred, for appropriate action and disposition, to the CA where it was docketed as CA-G.R. CR-H.C. No. 00717. As stated at the beginning hereof, the CA, in its decision of July 14, 2005, in CA-G.R. CR-H.C. No. 000717, affirmed with modification the judgment of conviction pronounced by the trial court. We quote the fallo of the CA decision:

WHEREFORE, the judgment of conviction is AFFIRMED. The accused, Richard Sarcia y Olivera, is ordered to suffer the penalty of DEATH, and to pay the victim, [AAA], the amount of (1) P75,000.00 as civil indemnity; (2) P50,000.00 as moral damages, and (3) P25,000.00 as exemplary damages. Let the entire records of this case be elevated to the Supreme Court for review, pursuant to A.M. No. 00-5-03-SC (Amendments to the Revised Rules of Criminal Procedure to Govern Death Penalty Cases), which took effect on October 15, 2004. SO ORDERED. On September 30, 2005, the case was elevated to this Court for further review.14 In our Resolution15 of November 15, 2005, we required the parties to simultaneously submit their respective supplemental briefs. Accused-appellant filed his Supplemental Brief16 on April 7, 2006. Having failed to submit one, the Office of the Solicitor General (OSG) was deemed to have waived the filing of its supplemental brief. In his Brief filed before the CA, accused-appellant raised the following assignment of errors: I THE LOWER COURT GRAVELY ERRED IN GIVING CREDENCE TO THE TESTIMONY OF [AAA], [her cousin] and [her father]. II THE LOWER COURT GLARINGLY ERRED IN REJECTING THE DEFENSE OF ALIBI INTERPOSED BY THE ACCUSED WHICH IS MORE CREDIBLE. III THE LOWER COURT GRAVELY ERRED IN NOT ACQUITTING THE ACCUSED RICHARD SARCIA. The evidence for the prosecution is summarized by the OSG in the Appellee's Brief, as follows: On December 16, 1996, five-year-old [AAA], together with her [cousin and two other playmates], was playing in the yard of Saling Crisologo near a mango tree. Suddenly, appellant appeared and invited [AAA] to go with him to the backyard of Saling Crisologos house. She agreed. Unknown to appellant, [AAAs cousin] followed them. Upon reaching the place, appellant removed [AAAs] shorts and underwear. He also removed his trousers and brief. Thereafter, he ordered [AAA] to lie down on her back. Then, he lay on top of her and inserted his penis into [AAAs] private organ. Appellant made an up-and-down movement ("Nagdapadapa tabi"). [AAA] felt severe pain inside her private part and said "aray." She also felt an intense pain inside her stomach. [AAAs cousin], who positioned herself around five (5) meters away from them, witnessed appellants dastardly act. Horrified, [AAAs cousin] instinctively rushed to the house of [AAAs] mother, her aunt Emily, and told the latter what she had seen. [AAAs] mother answered that they (referring to {AAA and her cousin} were still very young to be talking about such matters. Meanwhile, after satisfying his lust, appellant stood up and ordered [AAA] to put on her clothes. Appellant then left.

Perplexed, [AAAs cousin] immediately returned to the backyard of Saling Crisologo where she found [AAA] crying. Appellant, however, was gone. [AAAs cousin] approached [AAA] and asked her what appellant had done to her. When [AAA] did not answer, [her cousin] did not ask her any further question and just accompanied her home. At home, [AAA] did not tell her mother what appellant had done to her because she feared that her mother might slap her. Later, when her mother washed her body, she felt a grating sensation in her private part. Thereafter, [AAA] called for [her cousin]. [AAAs cousin] came to their house and told [AAAs] mother again that appellant had earlier made an up-and-down movement on top of [AAA]. [AAAs mother], however did not say anything. At that time, [AAAs] father was working in Manila. Dr. Joana Manatloa is the Municipal Health Officer of Guinobatan, Albay. She testified that: (1) it was the rural health officer, Dr. Reantaso, who conducted a physical examination on [AAA]; (2) Dr. Reantaso prepared and signed a medico-legal certificate containing the result of [AAA]s examination; (3) Dr. Reantaso, however, had already resigned as rural health officer of Guinobatan, Albay; (4) as a medical doctor, she can interpret, the findings in said medico-legal certificate issued to [AAA]; (5) [AAA]s medical findings are as follows: "negative for introital vulvar laceration nor scars, perforated hymen, complete, pinkish vaginal mucosa, vaginal admits little finger with resistance; (6) the finding "negative for introital bulvar laceration nor scars" means, in laymans language, that there was no showing of any scar or wound, and (7) there is a complete perforation of the hymen which means that it could have been subjected to a certain trauma or pressure such as strenuous exercise or the entry of an object like a medical instrument or penis.17 On the other hand, the trial court summarized the version of the defense as follows: Richard Sarcia, 24 years old, single, student and a resident of Doa Tomasa, Guinobatan, Albay denied he raped [AAA]. While he knows [AAAs] parents, because sometimes they go to their house looking for his father to borrow money, he does not know [AAA] herself. His father retired as a fireman from Crispa in 1991 while his mother worked as an agriculturist in the Municipality of Teresa, Antipolo, Rizal. As an agriculturist of the Department of Agriculture, his mother would bring seedlings and attend seminars in Batangas and Baguio. They were residing in Cainta, Rizal when sometime in 1992 they transferred residence to Guinobatan, Albay. His father is from barangay Masarawag while his mother is from barangay Doa Tomasa both of Guinobatan, Albay. After their transfer in Guinobatan, his mother continued to be an agriculturist while his father tended to his 1-hectare coconut land. Richard testified he was between fourteen (14) and fifteen (15) years old in 1992 when they transferred to Guinobatan. Between 1992 and 1994 he was out of school. But from 1994 to 1998 he took his high school at Masarawag High School. His daily routine was at about 4:00 oclock in the afternoon after school before proceeding home he would usually play basketball at the basketball court near the church in Doa Tomasa about 1 kilometer away from their house. When her mother suffered a stroke in 1999 he and his father took turns taking care of his mother. Richard denied molesting other girls ... and was most surprised when he was accused of raping [AAA]. He knows Saling Crisologo and the latters place which is more than half kilometer to their house. Richard claimed Salvacion Bobier, grandmother of Mae Christine Camu, whose death on May 7, 2000 was imputed to him and for which a case for Murder under Criminal Case No. 4087 was filed against him with the docile cooperation of [AAAs] parents who are related to Salvacion, concocted and instigated [AAAs] rape charge against him to make the case for Murder against him stronger and life for him miserable. He was incarcerated on May 10, 2000 for the Murder charge and two (2) months later while he already in detention, the rape case supposedly committed in 1996 was filed against him in the Municipal Trial Court (MTC) of Guinobatan, Albay. He was to learn about it from his sister, Marivic, on a Sunday afternoon sometime on July 20, 2000 when his sister visited him in jail. He naturally got angry when he heard of this rape charge because he did not do such thing and recalled telling his sister they can go to a doctor and have the child examine to prove he did not rape her. Subsequently, from his sister again he was to learn that the rape case was ordered dismissed.

On cross-examination, Richard admitted [AAAs] mother, is also related to his father, [AAA mothers] father, being a second cousin of his father. Richard is convinced it is not the lending of money by his father to the AAAs family as the motive for the latter to file the rape case against him but the instigation of Salvacion Bobier. Manuel A. Casimiro, Clerk of Court II of the Municipal Trial Court (MTC), Guinobatan, Albay, testified on the records of Criminal Case No. 7078 filed in MTC Guinobatan, Albay against Richard Sarcia for Rape in relation to RA 7610 relative to the alleged withdrawal of said rape case but the accused through counsel failed to formally offer the marked exhibits relative to said case.18 Accused-appellant alleges that the trial court erred in convicting him, as the prosecution was not able to prove his guilt beyond reasonable doubt. He assailed the credibility of the prosecution witnesses, AAA, her cousin and her father on the following grounds: (1) the testimonies of AAA and her cousin were inconsistent with each other; (2) the victim was confused as to the date and time of the commission of the offense; (3) there was a four-year delay in filing the criminal case, and the only reason why they filed the said case was "to help Salvacion Bobier get a conviction of this same accused in a murder case filed by said Salvacion Bobier for the death of her granddaughter Mae Christine Camu on May 7, 2000." Accused-appellant stressed that the same Salvacion Bobier helped AAAs father in filing the said case for rape. Accused-appellant also claimed that the prosecution failed to prove that he employed force, threats or intimidation to achieve his end. Finally, accused-appellant harped on the finding in the medical certificate issued by Dr. Reantaso and interpreted by Dr. Joana Manatlao, stating "negative for introital bulvar laceration nor scar which means that there was no showing of any scar or wound." In his Appellee's Brief accused-appellant pointed out the inconsistencies between AAAs and her cousins testimonies as follows: (1) the cousin testified that she played with AAA at the time of the incident, while AAA testified that she was doing nothing before accused-appellant invited her to the back of the house of a certain Saling; (2) the cousin testified that when she saw accusedappellant doing the push-and-pull motion while on top of AAA, the latter shouted in a loud voice contrary to AAAs testimony that when accused-appellant was inside her and started the up-anddown motion, she said "aray"; (3) when the cousin returned to AAA after telling the latters mother what accused-appellant had done to AAA, she found AAA crying. AAA however testified that, after putting on her clothes, she invited the cousin to their house; and (4) the cousin testified that other children were playing at the time of the incident, but AAA testified that there were only four of them who were playing at that time. As it is oft-repeated, inconsistencies in the testimonies of witnesses, which refer only to minor details and collateral matters, do not affect the veracity and weight of their testimonies where there is consistency in relating the principal occurrence and the positive identification of the accused. Slight contradictions in fact even serve to strengthen the credibility of the witnesses and prove that their testimonies are not rehearsed. Nor are such inconsistencies, and even improbabilities, unusual, for there is no person with perfect faculties or senses.19 The alleged inconsistencies in this case are too inconsequential to overturn the findings of the court a quo. It is important that the two prosecution witnesses were one in saying that it was accused-appellant who sexually abused AAA. Their positive, candid and straightforward narrations of how AAA was sexually abused by accused-appellant evidently deserve full faith and credence. When the rape incident happened, AAA was only five (5) years old; and when she and her cousin testified, they were barely 9 and 11 years old, respectively. This Court has had occasion to rule that the alleged inconsistencies in the testimonies of the witnesses can be explained by their age and their inexperience with court proceedings, and that even the most candid of witnesses commit mistakes and make confused and inconsistent statements. This is especially true of young witnesses, who could be overwhelmed by the atmosphere of the courtroom. Hence, there is more reason to accord them ample space for inaccuracy.20

Accused-appellant capitalizes on AAAs inability to recall the exact date when the incident in 1996 was committed. Failure to recall the exact date of the crime, however, is not an indication of false testimony, for even discrepancies regarding exact dates of rapes are inconsequential and immaterial and cannot discredit the credibility of the victim as a witness.21 In People v. Purazo,22 We ruled: We have ruled, time and again that the date is not an essential element of the crime of rape, for the gravamen of the offense is carnal knowledge of a woman. As such, the time or place of commission in rape cases need not be accurately stated. As early as 1908, we already held that where the time or place or any other fact alleged is not an essential element of the crime charged, conviction may be had on proof of the commission of the crime, even if it appears that the crime was not committed at the precise time or place alleged, or if the proof fails to sustain the existence of some immaterial fact set out in the complaint, provided it appears that the specific crime charged was in fact committed prior to the date of the filing of the complaint or information within the period of the statute of limitations and at a place within the jurisdiction of the court. Also in People v. Salalima,23 the Court held: Failure to specify the exact dates or time when the rapes occurred does not ipso facto make the information defective on its face. The reason is obvious. The precise date or time when the victim was raped is not an element of the offense. The gravamen of the crime is the fact of carnal knowledge under any of the circumstances enumerated under Article 335 of the Revised Penal Code. As long as it is alleged that the offense was committed at any time as near to the actual date when the offense was committed an information is sufficient. In previous cases, we ruled that allegations that rapes were committed "before and until October 15, 1994," "sometime in the year 1991 and the days thereafter," "sometime in November 1995 and some occasions prior and/or subsequent thereto" and "on or about and sometime in the year 1988" constitute sufficient compliance with Section 11, Rule 110 of the Revised Rules on Criminal Procedure. In this case, AAAs declaration that the rape incident took place on December 15, 1996 was explained by the trial court, and we quote: The rape took place in 1996. As earlier noted by the Court the date December 15, 1996 mentioned by [AAA] may have been arbitrarily chosen by the latter due to the intense crossexamination she was subjected but the Court believes it could have been in any month and date in the year 1996 as in fact neither the information nor [AAAs] sworn statement mention the month and date but only the year.24 Likewise, witnesses credibility is not affected by the delay in the filing of the case against accused-appellant. Neither does the delay bolster accused-appellants claim that the only reason why this case was filed against him was "to help Salvacion Bobier get a conviction of this same accused-appellant in the case of murder filed by Salvacion Bobier for the death of her granddaughter Mae Christine Camu on May 7, 2000." The rape victims delay or hesitation in reporting the crime does not destroy the truth of the charge nor is it an indication of deceit. It is common for a rape victim to prefer silence for fear of her aggressor and the lack of courage to face the public stigma of having been sexually abused. In People v. Coloma25 we even considered an 8-year delay in reporting the long history of rape by the victims father as understandable and not enough to render incredible the complaint of a 13-year-old daughter. Thus, in the absence of other circumstances that show that the charge was a mere concoction and impelled by some ill motive, delay in the filing of the complainant is not sufficient to defeat the charge. Here, the failure of AAAs parents to immediately file this case was sufficiently justified by the complainants father in the latters testimony, thus:

Q But, did you not say, please correct me if I am wrong, you got angry when your wife told you that something happened to Hazel way back in 1996? A Yes, sir. Q Yet, despite your anger you were telling us that you waited until June to file this case? A After I heard about the incident, I and my wife had a talk for which reason that during that time we had no money yet to use in filing the case, so we waited. When we were able to save enough amounts, we filed the case.26 Accused-appellant also contends that he could not be liable for rape because there is no proof that he employed force, threats or intimidation in having carnal knowledge of AAA. Where the girl is below 12 years old, as in this case, the only subject of inquiry is whether "carnal knowledge" took place. Proof of force, intimidation or consent is unnecessary, since none of these is an element of statutory rape. There is a conclusive presumption of absence of free consent when the rape victim is below the age of twelve.27 Accused-appellant harps on the medical report, particularly the conclusion quoted as follows: "negative for introital bulvar laceration nor scars, which means, in layman language, that there was no showing of any scar or wound." The Court has consistently ruled that the presence of lacerations in the victims sexual organ is not necessary to prove the crime of rape and its absence does not negate the fact of rape. A medical report is not indispensable in a prosecution for rape.28 What is important is that AAAs testimony meets the test of credibility, and that is sufficient to convict the accused. Accused-appellants defense of denial was properly rejected. Time and time again, we have ruled that denial like alibi is the weakest of all defenses, because it is easy to concoct and difficult to disprove. Furthermore, it cannot prevail over the positive and unequivocal identification of appellant by the offended party and other witnesses. Categorical and consistent positive identification, absent any showing of ill motive on the part of the eyewitness testifying on the matter, prevails over the appellants defense of denial and alibi.29 The shallow hypothesis put forward by accused-appellant that he was accused of raping AAA due to the instigation of Salvacion Bobier hardly convinces this Court. On this score, the trial court aptly reached the following conclusion: True, Salvacion Bobier actively assisted AAAs family file the instant case against the accused, but the Court believes [AAAs] parents finally decided to file the rape case because after they have come to realize after what happened to Mae Christine Camu that what previously [AAA and her cousin] told her mother and which the latter had continually ignored is after all true. AAA was barely 9 years of age when she testified. It has been stressed often enough that the testimony of rape victims who are young and immature deserve full credence. It is improbable for a girl of complainants age to fabricate a charge so humiliating to herself and her family had she not been truly subjected to the painful experience of sexual abuse. At any rate, a girl of tender years, innocent and guileless, cannot be expected to brazenly impute a crime so serious as rape to any man if it were not true.30 Parents would not sacrifice their own daughter, a child of tender years at that, and subject her to the rigors and humiliation of public trial for rape, if they were not motivated by an honest desire to have their daughters transgressor punished accordingly.31 Hence, the logical conclusion is that no such improper motive exists and that her testimony is worthy of full faith and credence. The guilt of accused-appellant having been established beyond reasonable doubt, we discuss now the proper penalty to be imposed on him.

Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659,32 was the governing law at the time the accused-appellant committed the rape in question. Under the said law, the penalty of death shall be imposed when the victim of rape is a child below seven years of age. In this case, as the age of AAA, who was five (5) years old at the time the rape was committed, was alleged in the information and proven during trial by the presentation of her birth certificate, which showed her date of birth as January 16, 1991, the death penalty should be imposed. However, this Court finds ground for modifying the penalty imposed by the CA. We cannot agree with the CAs conclusion that the accused-appellant cannot be deemed a minor at the time of the commission of the offense to entitle him to the privileged mitigating circumstance of minority pursuant to Article 68(2)33 of the Revised Penal Code. When accused appellant testified on March 14, 2002, he admitted that he was 24 years old, which means that in 1996, he was 18 years of age. As found by the trial court, the rape incident could have taken place "in any month and date in the year 1996." Since the prosecution was not able to prove the exact date and time when the rape was committed, it is not certain that the crime of rape was committed on or after he reached 18 years of age in 1996. In assessing the attendance of the mitigating circumstance of minority, all doubts should be resolved in favor of the accused, it being more beneficial to the latter. In fact, in several cases, this Court has appreciated this circumstance on the basis of a lone declaration of the accused regarding his age.34 Under Article 68 of the Revised Penal Code, when the offender is a minor under 18 years, the penalty next lower than that prescribed by law shall be imposed, but always in the proper period. However, for purposes of determining the proper penalty because of the privileged mitigating circumstance of minority, the penalty of death is still the penalty to be reckoned with.35 Thus, the proper imposable penalty for the accused-appellant is reclusion perpetua. It is noted that the Court is granted discretion in awarding damages provided in the Civil Code, in case a crime is committed. Specifically, Article 2204 of the Civil Code provides that "in crimes, the damages to be adjudicated may be respectively increased or lessened according to the aggravating or mitigating circumstances." The issue now is whether the award of damages should be reduced in view of the presence here of the privileged mitigating circumstance of minority of the accused at the time of the commission of the offense. A review of the nature and purpose of the damages imposed on the convicted offender is in order. Article 107 of the Revised Penal Code defines the term "indemnification," which is included in the civil liability prescribed by Article 104 of the same Code, as follows: Art. 107. Indemnification-What is included. Indemnification for consequential damages shall include not only those caused the injured party, but also those suffered by his family or by a third person by reason of the crime. Relative to civil indemnity, People v. Victor36 ratiocinated as follows: The lower court, however, erred in categorizing the award of P50,000.00 to the offended party as being in the nature of moral damages. We have heretofore explained in People v. Gementiza that the indemnity authorized by our criminal law as civil liability ex delicto for the offended party, in the amount authorized by the prevailing judicial policy and aside from other proven actual damages, is itself equivalent to actual or compensatory damages in civil law. It is not to be considered as moral damages thereunder, the latter being based on different jural foundations and assessed by the court in the exercise of sound discretion. One other point of concern has to be addressed. Indictments for rape continue unabated and the legislative response has been in the form of higher penalties. The Court believes that, on like considerations, the jurisprudential path on the civil aspect should follow the same direction. Hence, starting with the case at bar, if the crime of rape is committed or effectively qualified by

any of the circumstances under which the death penalty is authorized by the present amended law, the indemnity for the victim shall be in the increased amount of not less than P75,000.00. This is not only a reaction to the apathetic societal perception of the penal law, and the financial fluctuations over time, but also an expression of the displeasure of the Court over the incidence of heinous crimes against chastity. (Emphasis Supplied) The Court has had the occasion to rule that moral damages are likewise compensatory in nature. In San Andres v. Court of Appeals,37 we held: x x x Moral damages, though incapable of pecuniary estimation, are in the category of an award designed to compensate the claimant for actual injury suffered and not to impose a penalty on the wrongdoer. (Emphasis Supplied) In another case, this Court also explained: What we call moral damages are treated in American jurisprudence as compensatory damages awarded for mental pain and suffering or mental anguish resulting from a wrong (25 C.J.S. 815).38 (Emphasis Supplied) Thus, according to law and jurisprudence, civil indemnity is in the nature of actual and compensatory damages for the injury caused to the offended party and that suffered by her family, and moral damages are likewise compensatory in nature. The fact of minority of the offender at the time of the commission of the offense has no bearing on the gravity and extent of injury caused to the victim and her family, particularly considering the circumstances attending this case. Here, the accused-appelant could have been eighteen at the time of the commission of the rape. He was accorded the benefit of the privileged mitigating circumstance of minority because of a lack of proof regarding his actual age and the date of the rape rather than a moral or evidentiary certainty of his minority. In any event, notwithstanding the presence of the privileged mitigating circumstance of minority, which warrants the lowering of the public penalty by one degree, there is no justifiable ground to depart from the jurisprudential trend in the award of damages in the case of qualified rape, considering the compensatory nature of the award of civil indemnity and moral damages. This was the same stance this Court took in People v. Candelario,39 a case decided on July 28, 1999, which did not reduce the award of damages. At that time, the damages amounted to P75,000.00 for civil indemnity and P50,000.00 for moral damages, even if the public penalty imposed on the accused was lowered by one degree, because of the presence of the privileged mitigating circumstance of minority. The principal consideration for the award of damages, under the ruling in People v. Salome40 and People v. Quiachon41 is the penalty provided by law or imposable for the offense because of its heinousness, not the public penalty actually imposed on the offender. Regarding the civil indemnity and moral damages, People v. Salome explained the basis for increasing the amount of said civil damages as follows: The Court, likewise, affirms the civil indemnity awarded by the Court of Appeals to Sally in accordance with the ruling in People v. Sambrano which states: "As to damages, we have held that if the rape is perpetrated with any of the attending qualifying circumstances that require the imposition of the death penalty, the civil indemnity for the victim shall P75,000.00 Also, in rape cases, moral damages are awarded without the need proof other than the fact of rape because it is assumed that the victim has suffered moral injuries entitling her to such an award. However, the trial courts award of P50,000.00 as moral damages should also be increased to P75,000 pursuant to current jurisprudence on qualified rape."

It should be noted that while the new law prohibits the imposition of the death penalty, the penalty provided for by law for a heinous offense is still death and the offense is still heinous. Consequently, the civil indemnity for the victim is still P75,000.00. People v. Quiachon also ratiocinates as follows: With respect to the award of damages, the appellate court, following prevailing jurisprudence, correctly awarded the following amounts; P75,000.00 as civil indemnity which is awarded if the crime is qualified by circumstances warranting the imposition of the death penalty; P75,000.00.00 as moral damages because the victim is assumed to have suffered moral injuries, hence, entitling her to an award of moral damages even without proof thereof, x x x Even if the penalty of death is not to be imposed on the appellant because of the prohibition in R.A. No. 9346, the civil indemnity of P75,000.00 is still proper because, following the ratiocination in People v. Victor, the said award is not dependent on the actual imposition of the death penalty but on the fact that qualifying circumstances warranting the imposition of the death penalty attended the commission of the offense. The Court declared that the award of P75,000.00 shows "not only a reaction to the apathetic societal perception of the penal law and the financial fluctuations over time but also the expression of the displeasure of the court of the incidence of heinous crimes against chastity." The litmus test therefore, in the determination of the civil indemnity is the heinous character of the crime committed, which would have warranted the imposition of the death penalty, regardless of whether the penalty actually imposed is reduced to reclusion perpetua. As to the award of exemplary damages, Article 2229 of the Civil Code provides that exemplary or corrective damages are imposed in addition to the moral, temperate, liquidated or compensatory damages. Exemplary damages are not recoverable as a matter of right. The requirements of an award of exemplary damagees are: (1) they may be imposed by way of example in addition to compensatory damages, and only after the claimants right to them has been established; (2) they cannot be recovered as a matter of right, their determination depending upon the amount of compensatory damages that may be awarded to the claimant; (3) the act must be accompanied by bad faith or done in a wanton, fraudulent, oppressive or malevolent manner.42 Since the compensatory damages, such as the civil indemnity and moral damages, are increased when qualified rape is committed, the exemplary damages should likewise be increased in accordance with prevailing jurisprudence.43 In sum, the increased amount of P75,000.00 each as civil indemnity and moral damages should be maintained. It is also proper and appropriate that the award of exemplary damages be likewise increased to the amount of P30,000.00 based on the latest jurisprudence on the award of damages on qualified rape. Thus, the CA correctly awarded P75,000.00 as civil indemnity. However the award of P50,000.00 as moral damages is increased to P75,000.0044 and that of P25,000.00 as exemplary damages is likewise increased to P30,000.00.45 Meanwhile, when accused-appellant was detained at the New Bilibid Prison pending the outcome of his appeal before this Court, Republic Act (R.A.) No. 9344, the Juvenile Justice and Welfare Act of 2006 took effect on May 20, 2006. The RTC decision and CA decision were promulgated on January 17, 2003 and July 14, 2005, respectively. The promulgation of the sentence of conviction of accused-appellant handed down by the RTC was not suspended as he was about 25 years of age at that time, in accordance with Article 192 of Presidential Decree (P.D.) No. 603, The Child and Youth Welfare Code46 and Section 32 of A.M. No. 02-1-18-SC, the Rule on Juveniles in Conflict with the Law.47 Accused-appellant is now approximately 31 years of age. He was previously detained at the Albay Provincial Jail at Legaspi City and transferred to the New Bilibid Prison, Muntinlupa City on October 13, 2003. R.A. No. 9344 provides for its retroactive application as follows:

Sec. 68. Children Who Have Been Convicted and are Serving Sentence. Persons who have been convicted and are serving sentence at the time of the effectivity of this Act, and who were below the age of eighteen (18) years at the time of the commission of the offense for which they were convicted and are serving sentence, shall likewise benefit from the retroactive application of this Act. x x x The aforequoted provision allows the retroactive application of the Act to those who have been convicted and are serving sentence at the time of the effectivity of this said Act, and who were below the age of 18 years at the time of the commission of the offense. With more reason, the Act should apply to this case wherein the conviction by the lower court is still under review. Hence, it is necessary to examine which provisions of R.A. No. 9344 shall apply to accusedappellant, who was below 18 years old at the time of the commission of the offense. Sec. 38 of R.A. No. 9344 provides for the automatic suspension of sentence of a child in conflict with the law, even if he/she is already 18 years of age or more at the time he/she is found guilty of the offense charged. It reads: Sec. 38. Automatic Suspension of Sentence. Once the child who is under eighteen (18) years of age at the time of the commission of the offense is found guilty of the offense charged, the court shall determine and ascertain any civil liability which may have resulted from the offense committed. However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended sentence, without need of application: Provided, however, That suspension of sentence shall still be applied even if the juvenile is already eighteen (18) of age or more at the time of the pronouncement of his/her guilt. Upon suspension of sentence and after considering the various circumstances of the child, the court shall impose the appropriate disposition measures as provided in the Supreme Court on Juvenile in Conflict with the Law. The above-quoted provision makes no distinction as to the nature of the offense committed by the child in conflict with the law, unlike P.D. No. 603 and A.M. No. 02-1-18-SC.48 The said P.D. and Supreme Court (SC) Rule provide that the benefit of suspended sentence would not apply to a child in conflict with the law if, among others, he/she has been convicted of an offense punishable by death, reclusion perpetua or life imprisonment. In construing Sec. 38 of R.A. No. 9344, the Court is guided by the basic principle of statutory construction that when the law does not distinguish, we should not distinguish.49 Since R.A. No. 9344 does not distinguish between a minor who has been convicted of a capital offense and another who has been convicted of a lesser offense, the Court should also not distinguish and should apply the automatic suspension of sentence to a child in conflict with the law who has been found guilty of a heinous crime. Moreover, the legislative intent, to apply to heinous crimes the automatic suspension of sentence of a child in conflict with the law can be gleaned from the Senate deliberations50 on Senate Bill No. 1402 (Juvenile Justice and Delinquency Prevention Act of 2005), the pertinent portion of which is quoted below: If a mature minor, maybe 16 years old to below 18 years old is charged, accused with, or may have committed a serious offense, and may have acted with discernment, then the child could be recommended by the Department of Social Welfare and Development (DSWD), by the Local Council for the Protection of Children (LCPC), or by my proposed Office of Juvenile Welfare and Restoration to go through a judicial proceeding; but the welfare, best interests, and restoration of the child should still be a primordial or primary consideration. Even in heinous crimes, the intention should still be the childs restoration, rehabilitation and reintegration. xxx (Italics supplied)1avvphi1

Nonetheless, while Sec. 38 of R.A. No. 9344 provides that suspension of sentence can still be applied even if the child in conflict with the law is already eighteen (18) years of age or more at the time of the pronouncement of his/her guilt, Sec. 40 of the same law limits the said suspension of sentence until the said child reaches the maximum age of 21, thus: Sec. 40. Return of the Child in Conflict with the Law to Court. If the court finds that the objective of the disposition measures imposed upon the child in conflict with the law have not been fulfilled, or if the child in conflict with the law has willfully failed to comply with the condition of his/her disposition or rehabilitation program, the child in conflict with the law shall be brought before the court for execution of judgment. If said child in conflict with the law has reached eighteen (18) years of age while under suspended sentence, the court shall determine whether to discharge the child in accordance with this Act, to order execution of sentence, or to extend the suspended sentence for a certain specified period or until the child reaches the maximum age of twenty-one (21) years. (emphasis ours) To date, accused-appellant is about 31 years of age, and the judgment of the RTC had been promulgated, even before the effectivity of R.A. No. 9344. Thus, the application of Secs. 38 and 40 to the suspension of sentence is now moot and academic.51 However, accused-appellant shall be entitled to appropriate disposition under Sec. 51 of R.A. No. 9344, which provides for the confinement of convicted children as follows: Sec. 51. Confinement of Convicted Children in Agricultural Camps and Other Training Facilities. A child in conflict with the law may, after conviction and upon order of the court, be made to serve his/her sentence, in lieu of confinement in a regular penal institution, in an agricultural camp and other training facilities that may be established, maintained, supervised and controlled by the BUCOR, in coordination with the DSWD. The civil liability resulting from the commission of the offense is not affected by the appropriate disposition measures and shall be enforced in accordance with law.52 WHEREFORE, the decision of the CA dated July 14, 2005 in CA-G.R. CR-H.C. No. 00717 is hereby AFFIRMED with the following MODIFICATIONS: (1) the penalty of death imposed on accusedappellant is reduced to reclusion perpetua;53 and (2) accused-appellant is ordered to pay the victim the amount of P75,000.00 and P30,000.00 as moral damages and exemplary damages, respectively. The award of civil indemnity in the amount of P75,000.00 is maintained. However, the case shall be REMANDED to the court a quo for appropriate disposition in accordance with Sec. 51 of R.A. 9344. SO ORDERED. THIRD DIVISION

Raymund madali and rodel madali, Petitioners,

- versus -

PEOPLE OF THE PHILIPPINES, Respondent.

G.R. No. 180380

Present:

YNARES-SANTIAGO, J., Chairperson, CHICO-NAZARIO, VELASCO, JR., NACHURA, and PERALTA, JJ.

Promulgated:

August 4, 2009 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DeCISion

CHICO-NAZARIO, J.:

In this Petition for Review on Certiorari under Rule 45 of the Rules of Court, petitioners Raymund Madali (Raymund) and Rodel Madali (Rodel) seek the reversal of the 29 August 2007 Decision[1] of the Court of Appeals in CA-G.R. CR No. 27757; and its 23 October 2007 Resolution,[2] affirming with modifications the 28 July 2003 Decision[3] of the Romblon, Romblon, Regional Trial Court (RTC), Branch 81, in Criminal Case No. 2179, finding petitioners guilty of homicide. For the death of AAA,[4] Raymund, Rodel and a certain Bernardino Jojo Maestro (Bernardino) were charged before the RTC with the crime of Murder. The accusatory portion of the Information reads:

That on or about the 13th day of April 1999, at around 11:00 oclock in the evening, in the Barangay XXX, Municipality of Romblon, province of Romblon, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with intent to kill, conspiring, confederating and mutually helping each other, did then and there by means of treachery and with evident premeditation, willfully, unlawfully and feloniously attack, assault, strike with a coconut frond and llave inglesa and strangle with a dog chain, one AAA, inflicting upon the latter mortal wounds in different parts of his body which caused his untimely death.[5]

During the arraignment on 31 May 2000, the three accused, with the assistance of counsel, pleaded not guilty.[6]

On trial, the prosecution presented eight witnesses, namely: (1) Jovencio Musa (Jovencio), 16 years old, the victims cousin and the alleged lone eyewitness to the killing; (2) Senior Police Officer (SPO) 3 Rogelio Madali, the designated Deputy Chief of Police of the Romblon Police Station; (3) Police Officer (PO) 3 Nicolas Molo, the police investigator assigned to the case; (4) BBB, the mother of the deceased victim; (5) Dr. Carmen Lita P. Calsado, Chief of the Romblon District Hospital, the physician who issued the death certificate of AAA; (6) Emerson de Asis, the alleged companion of witness Jovencio on the night in question, who later became a hostile witness; (7) Michael Manasan, also a companion of witness Jovencio before the killing of the victim occurred; (8) Dr. Floresto Arizala, Jr., a forensic expert from the National Bureau of Investigation (NBI), Manila, who conducted the examination of the corpse of the victim after the same was exhumed.

As documentary and object evidence, the prosecution offered the following: (1) Exhibit A Affidavit of Jovencio executed on 22 April 1999, detailing the circumstances prior to, during and after the killing of the victim perpetrated by Raymund, Rodel and Bernardino; (2) Exhibit B Sinumpaang Salaysay of Jovencio dated 8 May 1999, a recantation of the 22 April 1999 Affidavit; (3) Exhibit C Amended Affidavit of Jovencio dated 28 May 1999, which was substantially the same on material points as the 22 April 1999 Affidavit; (4) Exhibit D Undated Reply Affidavit of Jovencio insisting that the death of the victim was authored by Raymund, Rodel and Bernardino; (5) Exhibit E Joint Affidavit of prosecution witnesses SPO3 Rogelio Madali and a certain SPO2 Teresito M. Sumadsad; (6) Exhibit F the coconut frond recovered by the police officers from the scene of the incident; (7) Exhibit G a dog chain used as part of a strap that was tied to the victims neck while he was hanging from a tree; (8) Exhibit H the handkerchief that was tied around the victims neck; (9) Exhibit I empty bottles of gin; (10) Exhibit J cellophanes with rugby; (10) Exhibit K pictures taken from the crime scene including the picture of the body of the victim tied to a tree; (11) Exhibit L Letter of Request for the NBI to conduct an examination of the body of the victim; (12) Exhibits M to O NBI routing slips; (14) Exhibit P Death Certificate issued by Dr. Carmen Lita P. Calsado; (15) Exhibit Q Exhumation Report issued by Dr. Floresto P. Arizala, Jr.; (16) Exhibit R the Autopsy Report submitted by Dr. Floresto P. Arizala, Jr.; (17) Exhibit S Sketch of the head of the victim showing the injuries thereon; and (18) Exhibit T handwritten draft of the exhumation report.

Taken together, the evidence offered by the prosecution shows that at around 5:30 in the afternoon of 13 April 1999, BBB, who made a living by selling goods aboard ships docked at the Romblon Pier, and who was constantly assisted by her 15-year-old son AAA, was on a ship plying her wares. AAA, together with Jovencio and Raymund, was there helping his mother.[7] Sometime later, Raymund and AAA left the ship. Jovencio stayed a little longer.[8]

At about 9:00 p.m. of the same day, Jovencio and another friend named Michael Manasan sat beside the Rizal monument in the Poblacion of Romblon, located between the Roman Catholic Church and Lovers Inn. Michael had just left Jovencio when Raymund, Rodel, Bernardino and the victim AAA arrived. After meandering around, the group proceeded to climb the stairs, atop of which was the reservoir just beside the Romblon National High School. The victim, AAA, ascended first; behind him were Rodel, Raymund, Bernardino and witness Jovencio. As soon as they reached the reservoir, Bernardino blindfolded AAA with the handkerchief of Raymund. Bernardino at once blurted out, Join the rugby boys. AAA replied, Thats enough. Bernardino then struck AAA thrice with a fresh and hard coconut frond. AAA lost his balance and was made to stand up by Raymund, Rodel and Bernardino. Raymund took his turn clobbering AAA at the back of his thighs with the same coconut frond. AAA wobbled. Before he could recover, he received punches to his head and body from Rodel, who was wearing brass knuckles. The punishments proved too much, as AAA lost consciousness.

Not satisfied, Raymund placed his handkerchief around the neck of AAA, with its ends tied to a dog chain. With the contraption, the three malefactors pulled the body up a tree.

Stunned at the sight of his cousin being ill-treated, Jovencio could only muster a faint voice saying Enough every single-time AAA received the painful blows. Bernardino, who seemed to suggest finishing off the victim, remarked, Since were all here, lets get on with it. Before leaving the scene, the three assailants warned Jovencio not to reveal the incident to anyone, or he would be next.

Tormented and torn between the desire to come clean and the fear for his life, Jovencio hardly slept that night. He did not divulge the incident to anyone for the next few days. BBB, the victims mother, was worried when her son did not come home. She started asking relatives whether they had seen her son, but their reply was always in the negative.

It was three days later that a certain Eugenio Murchanto reported to the police authorities about a dead man found in Barangay ZZZ near the Romblon National High School. When the policemen went there, they found the cadaver emitting a foul odor, with maggots crawling all over, hanging from a tree with a handkerchief tied around the neck and a dog chain fastened to the handkerchief. Also found in the area were paraphernalia for inhaling rugby, as well as empty bottles of gin and a coconut frond.

The provincial hospital refused to conduct an autopsy, since AAAs corpse was already decomposing and stank so badly. It was through the intercession of the NBI that the body was eventually exhumed and examined by medico-legal experts. Dr. Floresto P. Arizala, Jr., who conducted the examination, opined that the victim died due to head injuries and not to asphyxiation by hanging. He declared that the victim was already dead when he was tied to the tree, and that the variety of injuries sustained by the victim could be attributed to more than one assailant.

Upon investigation, Jovencio narrated the incident and pointed to Raymund, Rodel and Bernardino as the perpetrators of the crime. Thereafter, Jovencio executed his first affidavit, which was dated 22 April 1999. Because of the threat made on him by a certain Wilson, an uncle of Raymund and Rodel, Jovencio executed a second affidavit dated 8 May 1999, repudiating his first affidavit. On 28 May 1999, Jovencio made his third sworn statement substantially reverting to his first affidavit.

The accused, on the other hand, advanced the defense of denial and alibi. They claimed they had nothing to do with the death of AAA, and that they were nowhere near the locus criminis when the killing occurred.

According to Rodel, 16 years old, he was with his father Rodolfo Madali in the house of a friend named Noel Mindoro, located more or less 14 kilometers from the place where the victim was slain where they spent the whole evening until the following morning. Rodels testimony was corroborated by his father and Noel Mindoro.

On their part, Raymund, 14 years of age, and Bernardino declared that they were in their respective houses on the night in question. Raymunds place was allegedly five kilometers away from the scene of the crime, while Bernardinos was one kilometer away. Bernardinos testimony was supported by his father Bernardino Maestro, Sr. and by his neighbor Diana Mendez. Raymunds friend, Pastor Mario Fajiculay backed up the formers alibi.

Convinced by the version of the prosecution, the RTC rendered a guilty verdict against the three accused. On account of the prosecutions failure to prove the qualifying circumstances of treachery and evident premeditation, they were only convicted of homicide. The RTC observed that the incident was a sort of initiation, in which the victim voluntarily went along with the perpetrators, not totally unaware that he would be beaten. The RTC also appreciated the privileged mitigating circumstance of minority in favor of the three accused. The dispositive portion of the RTC decision reads:

WHEREFORE, finding the accused BERNARDO (sic) Jojo MAESTRO, JR., RODEL MADALI AND RAYMUND MADALI GUILTY beyond reasonable doubt of the crime of Homicide, they are hereby sentenced to suffer an indeterminate sentence of four (4) years, two (2) months and one (1) day to six (6) years and to indemnify the heirs of AAA jointly and severally the amount of PhP 50,000.00.[9]

On 6 August 2003, Bernardino applied for probation. Thus, only Raymund and Rodel elevated their convictions to the Court of Appeals.

In a Decision dated 29 August 2007, the Court of Appeals affirmed the findings of the RTC that Rodel and Raymund killed the victim. However, pursuant to Section 64 of Republic Act No. 9344, otherwise known as the Juvenile Justice and Welfare Act of 2006, which exempts from criminal liability a minor fifteen (15) years or below at the time of the commission of the offense, Raymunds case was dismissed. Rodels conviction was sustained, and he was sentenced to six months and one day of prision correccional to eight years and one day of prision mayor, but the imposition of said penalty was suspended pursuant to Republic Act No. 9344. The judgment provides:

WHEREFORE, the Decision dated July 28, 2003, rendered by the Regional Trial Court of Romblon, Romblon (Branch 81) is Criminal Case No. 2179, is affirmed with the following MODIFICATIONS:

1) Appellant Raymund Madali is declared EXEMPT from criminal liability and the case, insofar as he is concerned is hereby DISMISSED pursuant to R.A. No. 9344.

2) Appellant Rodel Madali is found guilty of homicide, the proper penalty for which is fixed at six (6) months and one (1) day of prision correccional to eight (8) years and one (1) day of prision mayor. Imposition of this penalty should, however, be SUSPENDED, also pursuant to R.A. No. 9344.

3) In addition to the civil indemnity imposed by the trial court in the amount of Fifty Thousand Pesos (P50,000.00), moral damages in the amount of Fifty Thousand Pesos (P50,000.00) is hereby awarded in favor of the heirs of the victim, AAA.

4)

xxxx

5) Finally, this case is referred to the Department of Social Welfare and Development (DWSD) for further proceedings in accordance with R.A. No. 9344.[10]

Hence, the instant case.

Petitioners Raymund and Rodel assail both the RTC and the Court of Appeals findings, which gave weight and credence to the account of the incident given by prosecution witness Jovencio, whose testimony according to them was replete with patent and substantial inconsistencies. First, petitioners set their sights on the conflicting affidavits executed by Jovencio. The first affidavit implicated the three accused in the death of AAA, which was controverted by the second affidavit where Jovencio denied having seen the three accused butcher the victim, while the third affidavit restated the material points in the first affidavit. Petitioners also pointed out the discrepancy between the first and the third affidavits, as the former stated that Jovencio was not seen by the three accused when they executed the victim; whereas in the latter affidavit, Jovencio stated he was with the three when the killing took place. Second, petitioners assert that the testimony of Jovencio relating to the alleged fact that his companions, Michael Manasan and Emerson de Asis, saw the three accused and the deceased during the night in question was debunked by the very testimonies of Michael Manasan and Emerson de Asis wherein they declared otherwise.

Moreover, petitioners contend that both the RTC and the Court of Appeals erred in disbelieving the defense of alibi they interposed, considering that the prosecution failed to muster the required quantum of proof, and that said defense was corroborated by testimonies of the other defense witnesses.

The elemental question in this case is the credibility of the parties and their witnesses.

Well-entrenched is the rule that the matter of assigning values to declarations on the witness stand is best and most competently performed by the trial judge who, unlike appellate magistrates, can weigh such testimonies in light of the declarants demeanor, conduct and position to discriminate between truth and falsehood.[11] This is especially true when the trial courts findings have been affirmed by the appellate court, because said findings are generally conclusive and binding upon this Court, unless it be manifestly shown that the lower courts had overlooked or disregarded arbitrarily the facts and circumstances of significance in the case.[12]

The RTC and the Court of Appeals did not overlook any significant facts in the case.

This Court itself, in its effort to ferret out the truth based on the evidence on records has diligently pored over the transcripts of stenographic notes of this case and, like the RTC, finds the testimony of Jovencio credible. Subjected to the grueling examinations on the witness stand, Jovencio steadfastly pointed to Raymund, Rodel and Bernardino as the persons who slaughtered the victim. He testified as follows:

Q:

Mr. Witness, will you tell us where were you on April 13, 1999?

xxxx

A:

I was at the Rizal standing by.

xxxx

PROS. BENEDICTO continuing:

Q:

While you were at Rizal on April 13, 1999 in the evening, [who was your companion]?

A:

Only Michael.

Q:

And what were you doing with Michael?

A:

Only standing by there.

Q:

Did anything happen while you were standing by with Michael?

A:

None, sir.

Q:

Did anyone arrive while you were there?

A:

Yes, sir.

Q:

Who?

A:

Jojo [Bernardino] followed by Raymund then AAA, then Rodel.

Q:

And what happened when they arrived?

A:

They were also standing by there.

Q:

How long did they stand by in that place?

A:

I do not know how many hours?

Q:

Then, what happened next?

A:

Around 10:30 oclock we went there.

Q:

When you said we, to whom you are referring as your companions?

A:

Jojo [Bernardino], Rodel, Raymund and AAA.

Q:

What happened to Michael?

A:

He went home.

Q:

When you said you went there, to which place are you referring?

A:

Near the high school at hagdan-hagdan.

Q: There are three (3) main streets in the Poblacion of Romblon, which street did you take in going to hagdan-hagdan near the high school?

A:

In the middle.

Q:

Did you climb the stairs?

A:

Yes, sir.

Q:

Who was ahead?

A:

AAA.

Q:

And who came next?

A:

Rodel.

Q:

Then, after Rodel, who?

A:

Raymund.

Q:

Then?

A:

[Bernardino].

Q:

[Bernardino] who?

A:

Maestro.

Q:

What is the relation of this Jojo Maestro to Bernardino Maestro you pointed a while ago?

A:

That Jojo is his alias.

Q:

Did you reach the top of the stairs?

A:

Yes, sir.

Q:

Upon reaching the top of the stairs, what did you do, if any?

A:

[Bernardino] blindfolded AAA.

Q:

With what?

A:

Handkerchief.

Q:

Where did he get that handkerchief?

A:

From Raymund.

Q:

After AAA, what is the family name of this AAA?

A:

AAA.

Q:

After AAA was blindfolded, what happened next?

A:

Then [Bernardino] told him Join the rugby boys!

Q:

Did AAA make any reply?

A:

AAA said Thats enough.

Q:

What happened after Jojo Maestro said you join the rugby boys?

A:

AAA was struck by a coconut frond three (3) times.

Q:

Who struck him with the coconut frond?

A:

[Bernardino].

Q:

What happened to AAA when he was struck three (3) times with the coconut fronds?

A:

He was made to stand.

Q:

After standing, what happened next?

A:

AAA was again struck with the coconut frond byRaymund.

Q:

Was AAA hit?

A:

Yes, sir.

Q:

Where?

A:

Here (witness is pointing to the posterior aspect of his right thigh).

Q:

What happened to AAA when he was hit by the coconut frond?

A:

As if he became weak.

Q:

How about Rodel, what did Rodel do, if any?

A:

He boxed the body and the head.

Q:

Of whom?

A:

Of Rodel.

Q:

Who was boxed by Rodel?

A:

AAA.

Q:

In Exhibit C you mentioned about llave inglesa, what is this llave inglesa?

A:

Lead llave inglesa.

Q:

And how does it look like?

A:

I forgot already but it was a brass knuckle.

Q: Did Exh. C mention that Rodel punched him in different parts of his body with a llave inglesa causing him to fall to the ground, how did Rodel use this llave inglesa?

A: Worn in his hand (witness raising his right hand and motioning the left as if wearing something in his right hand), then punched him.

Q: When he was punched on different parts of his body by Rodel using llave inglesa, what happened to AAA?

A:

He lost consciousness.

Q: When AAA lost consciousness, what did Bernardino Maestro, Raymund Madali and Rodel Madali do, if any?

A:

Raymund used his handkerchief in tying the neck of my cousin.

Q:

Who is this cousin of yours?

A:

AAA.

Q:

What is the family name?

A:

AAA.

COURT:

How about Bernardino as part of the question?

PROS. BENEDICTO continuing:

Q:

Bernardino, what did he do, if any?

A:

The chain for the dog was tied to the handkerchief.

COURT:

How about Rodel?

A:

They helped in lifting him and making him stand and hooked the tie to the tree.

Q:

What is this tie which was hooked to the tree made of?

A:

The chain.

Q:

Referring to the dog chain?

A:

Yes, sir.

Q: AAA?

While all these things were happening, what was Jovencio Musa doing who is a cousin of

A:

I got shock upon seeing it.

Q:

Did Jovencio Musa utter anything or do something?

A:

Everytime AAA was being struck I said Enough! (Tama na!).

Q:

How many times did you say that is enough?

A:

Twice.

Q:

How did the three (3) react to your saying Tama na, tama na!?

A:

It is already here so we will proceed.

COURT:

Translate that.

A:

Yari na ini, idiretso na.

xxxx

Q:

After tying the dog chain to the tree, what happened next?

A:

I was told by the three (3) that if I would reveal I would be the next to be killed.

Q:

After that, what happened?

A:

No more, we went home already.[13]

Jovencio saw at close range the incident as it was unfolding before his very eyes as he was there when it happened. He was in the company of the perpetrators and the victim. Thus, the incident could not have escaped his attention. The prosecution adequately established in graphic detail,

through the eyewitness, the circumstances that transpired before, during and after the killing of AAA. At around 11:30 p.m. of 13 April 1999, Jovencio, together with the victim, as well as with Rodel, Raymund and Bernardino, went to a place near the Romblon National High School. Jovencios earlier companion, Michael Manasan, did not go with the group, as he had already left a little earlier. As they reached their destination, the group ascended the stairs leading to a reservoir near the said school. AAA was ahead, followed by Rodel, Raymund, Bernardino and Jovencio. Upon reaching the top, Bernardino blindfolded the victim with a handkerchief and told the latter, Join the rugby boys! The victim responded, Thats enough! Bernardino then hit the victim thrice, using a green and hard coconut frond. Unable to withstand the beatings, the victim hit the ground and was lifted to his feet by Bernardino, Raymund and Rodel. With the same coconut frond, Raymund hit the victim on his right thigh. Rodel followed by punching the body and the head of the victim with a brass knuckle (llave inglesa) wrapped around the formers right fist. Feeling for his cousin, Jovencio shouted Tama na! Tama na! Bernardino responded, Yari na ini, ideretso na, (We have come this far, we have to finish it.) The victims strength was no match to the injuries he received. He passed out. Raymund then tied a handkerchief around the victims neck, fastened a dog chain to the ends of the said handkerchief and, with the aid of Raymund and Rodel, hoisted the victims body to and hanged it from a nearby tree. Shocked at what was happening, Jovencio just watched the whole incident, failing to muster enough courage to help his dying cousin.

The perpetrators warned Jovencio not to divulge to anyone what he saw, or he would be the next victim. Then they all left the place, leaving the victims body hanging from a tree.

The testimony of Jovencio was substantiated by the medical findings indicating that the victim was hit in the head by hard blows, causing his death. Other pieces of evidence such as the coconut frond, the dog chain and the handkerchief found in the scene also supported Jovencios account.

Against the damning evidence adduced by the prosecution, petitioners Raymund and Rodel could only muster mere denial. Unfortunately for them, their defense was much too flaccid to stay firm against the weighty evidence for the prosecution. Denial, if unsubstantiated by clear and convincing evidence, is a negative and self-serving evidence that deserves no weight in law. It cannot be given greater evidentiary value than the testimony of a credible witness who testifies on affirmative matters.[14] Between the self-serving testimonies of petitioners and the positive identification by the eyewitness, the latter deserves greater credence.[15]

Petitioners alibi, which was supported by the testimonies of close relatives and friends, cannot overcome the convincing evidence adduced by the prosecution. Such corroborative testimonies of relatives and friends are viewed with suspicion and skepticism by the Court.[16]

Furthermore, for alibi to prosper, two elements must concur: (a) the accused was in another place at the time the crime was committed; and (b) it was physically impossible for him to be at the scene of the crime at the time it was committed. In the case under consideration, Raymund was within a 5-kilometer distance from the scene, while Rodel was within a 14-kilometer distance. Even assuming arguendo that Raymund and Rodels defense were true, still, it was not physically impossible for them to be at the crime scene and to be participants in the gruesome

crime. It was not difficult for them to travel from where they allegedly were and arrive at the scene during the killing episode.

Petitioners made an issue of the affidavit of recantation repudiating the earlier one laying the blame on them. The affidavit of recantation executed by a witness prior to the trial cannot prevail over the testimony made during the trial.[17] Jovencio effectively repudiated the contents of the affidavit of recantation. The recantation would hardly suffice to overturn the trial courts finding of guilt, which was based on a clear and convincing testimony given during a fullblown trial. As held by this Court, an affidavit of recantation, being usually taken ex parte, would be considered inferior to the testimony given in open court.[18] A recantation is exceedingly unreliable, inasmuch as it is easily secured from a poor and ignorant witness, usually through intimidation or for monetary consideration.[19] Considering the age, the social standing and the economic status of witness Jovencio, it is not far-fetched that the combination of these factors impelled him to affix his signature to the recanting affidavit. Besides, Jovencio explained why he executed the second affidavit or the affidavit of recantation, which supposedly exonerated petitioners. He had been threatened by a certain Wilson, who was a relative of petitioners. Jovencio testified:

Q: Alright, in Exh. C specifically C-1, you mentioned that, you said that somebody fetched me in the evening of May 7, 1999 who told me that Rey Andrade wanted to talk to me regarding the incident, who was that somebody who fetched you in the house?

A:

I do not know but he is known as Andrade.

xxxx

Q:

What was the subject of your conversation with Andrade?

A:

About the Nephew of Wilson.

xxxx

Q:

How about this Wilson you were referring to?

A:

Wilson all of a sudden arrived there.

Q:

Did Wilson say anything?

A: [20]

Wilson said, if we will lose, all our expenses will be paid and if he wins I will be the next.

Petitioners also place much premium on the alleged contradiction between Jovencios narrative -which claimed that Emerson de Asis and Michael Manasan saw the victim in the company of the malefactors immediately prior to the killing -- and the testimonies of these two witnesses denying such allegation.

Unfortunately, this is just a minor inconsistency. The common narration of Emerson de Asis and Michael Manasan that they did not see the perpetrators with the victim prior to the killing are too insignificant, since their narration did not directly relate to the act of killing itself. Said inconsistency does not dilute the declarations of Jovencio. Given the natural frailties of the human mind and its incapacity to assimilate all material details of a given incident, slight inconsistencies and variances in the declarations of a witness hardly weaken their probative value. It is well settled that immaterial and insignificant details do not discredit a testimony on the very material and significant point bearing on the very act of accused-appellants.[21] As long as the testimonies of the witnesses corroborate one another on material points, minor inconsistencies therein cannot destroy their credibility. Inconsistencies on minor details do not undermine the integrity of a prosecution witness.[22] The minor inconsistencies and contradictions only serve to attest to the truthfulness of the witnesses and the fact that they had not been coached or rehearsed.[23]

The declaration of Michael Manasan -- that he did not see the petitioners together with Jovencio and the victim immediately prior the incident -- does not help a bit the cause of petitioners. As the Court of Appeals correctly pointed out, Michael could not have seen the malefactors in the company of the victim because according to Jovencio, Michael had gone home earlier that evening.

In fine, this Court defers to the findings of the trial court, which were affirmed by the Court of Appeals, there being no cogent reason to veer away from such findings.

As to the criminal liability, Raymond is exempt. As correctly ruled by the Court of Appeals, Raymund, who was only 14 years of age at the time he committed the crime, should be exempt from criminal liability and should be released to the custody of his parents or guardian pursuant to Sections 6 and 20 of Republic Act No. 9344, to wit:

SEC. 6. Minimum Age of Criminal Responsibility. A child fifteen (15) years of age or under at the time of the commission of the offense shall be exempt from criminal liability.

However, the child shall be subjected to an intervention program pursuant to Section 20 of this Act.

xxxx

The exemption from criminal liability herein established does not include exemption from civil liability, which shall be enforced in accordance with existing laws.

SEC. 20. Children Below the Age of Criminal Responsibility. If it has been determined that the child taken into custody is fifteen (15) years old or below, the authority which will have an initial contact with the child has the duty to immediately release the child to the custody of his/her parents or guardian, or in the absence thereof, the child's nearest relative. Said authority shall give notice to the local social welfare and development officer who will determine the appropriate programs in consultation with the child and to the person having custody over the child. If the parents, guardians or nearest relatives cannot be located, or if they refuse to take custody, the child may be released to any of the following: a duly registered nongovernmental or religious organization; a barangay official or a member of the Barangay Council for the Protection of Children (BCPC); a local social welfare and development officer; or, when and where appropriate, the DSWD. If the child referred to herein has been found by the Local Social Welfare and Development Office to be abandoned, neglected or abused by his parents, or in the event that the parents will not comply with the prevention program, the proper petition for involuntary commitment shall be filed by the DSWD or the Local Social Welfare and Development Office pursuant to Presidential Decree No. 603, otherwise known as "The Child and Youth Welfare Code."

Although the crime was committed on 13 April 1999 and Republic Act No. 9344 took effect only on 20 May 2006, the said law should be given retroactive effect in favor of Raymund who was not shown to be a habitual criminal. This is based on Article 22 of the Revised Penal Code which provides:

Retroactive effect of penal laws. Penal laws shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same.

While Raymund is exempt from criminal liability, his civil liability is not extinguished pursuant to the second paragraph of Section 6, Republic Act No. 9344.

As to Rodels situation, it must be borne in mind that he was 16 years old at the time of the commission of the crime. A determination of whether he acted with or without discernment is necessary pursuant to Section 6 of Republic Act No. 9344, viz:

SEC. 6. Minimum Age of Criminal Responsibility. x x x.

A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal liability and be subjected to an intervention program, unless he/she has acted with discernment, in which case, such child shall be subjected to the appropriate proceedings in accordance with this Act.

Discernment is that mental capacity of a minor to fully appreciate the consequences of his unlawful act.[24] Such capacity may be known and should be determined by taking into consideration all the facts and circumstances afforded by the records in each case.

The Court of Appeals could not have been more accurate when it opined that Rodel acted with discernment. Rodel, together with his cohorts, warned Jovencio not to reveal their hideous act to anyone; otherwise, they would kill him. Rodel knew, therefore, that killing AAA was a condemnable act and should be kept in secrecy. He fully appreciated the consequences of his unlawful act.

Under Article 68 of the Revised Penal Code, the penalty to be imposed upon a person under 18 but above 15 shall be the penalty next lower than that prescribed by law, but always in the proper period.

The penalty for homicide under Article 249 of the Revised Penal Code is reclusion temporal. Pursuant to Article 68, the maximum penalty should be within prision mayor, which is a degree lower than reclusion temporal. Absent any aggravating or mitigating circumstance, the maximum penalty should be in the medium period of prision mayor or 8 years and 1 day to 10 years. Applying the Indeterminate Sentence Law, the minimum should be anywhere within the penalty next lower in degree, that is, prision correccional. Therefore, the penalty imposed by the Court of Appeals, which is 6 months and one day of prision correccional to 8 years and one day of prision mayor, is in order. However, the sentence to be imposed against Rodel should be suspended pursuant to Section 38 of Republic Act No. 9344, which states:

SEC. 38. Automatic Suspension of Sentence. Once the child who is under eighteen (18) years of age at the time of the commission of the offense is found guilty of the offense charged, the court shall determine and ascertain any civil liability which may have resulted from the offense

committed. However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended sentence, without need of application. Provided, however, That suspension of sentence shall still be applied even if the juvenile is already eighteen (18) years of age or more at the time of the pronouncement of his/her guilt.

Upon suspension of sentence and after considering the various circumstances of the child, the court shall impose the appropriate disposition measures as provided in the Supreme Court Rule on Juveniles in Conflict with the Law.

The Court of Appeals awarded P50,000.00 as civil indemnity and another P50,000.00 as moral damages in favor of the heirs of the victim. In addition, Rodel and Raymund are ordered to pay P25,000.00 as temperate damages in lieu of the actual damages for funeral expenses, which the prosecution claimed to have incurred but failed to support by receipts.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated 29 August 2007 in CA-G.R. No. 27757, exempting Raymund Madali from criminal liability is hereby AFFIRMED. With respect to Rodel Madali, being a child in conflict with the law, this Court suspends the pronouncement of his sentence and REMANDS his case to the court a quo for further proceedings in accordance with Section 38 of Republic Act No. 9344. However, with respect to the civil liabilities, Rodel Madali and Raymund Madali are solidarily liable to pay the heirs of the victim the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages and P25,000.00 as temperate damages. SO ORDERED. RA 7877 THIRD DIVISION [G.R. No. 140604. March 6, 2002] DR. RICO S. JACUTIN, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION VITUG, J.: In an accusatory Information, dated 22 July 1996, petitioner, City Health Officer Rico Jacutin of Cagayan de Oro City, was charged before the Sandiganbayan, Fourth Division, with the crime of Sexual Harassment, thusly: That sometime on or about 01 December 1995, in Cagayan de Oro City, and within the jurisdiction of this Honorable Court pursuant to the provisions of RA 7975, the accused, a public officer, being then the City Health Officer of Cagayan de Oro City with salary grade 26 but a high ranking official by express provision of RA 7975, committing the offense in relation to his official functions and taking advantage of his position, did there and then, willfully, unlawfully and criminally, demand, solicit, request sexual favors from Ms. Juliet Q. Yee, a young 22 year-old

woman, single and fresh graduate in Bachelor of Science in Nursing who was seeking employment in the office of the accused, namely: by demanding from Ms. Yee that she should, expose her body and allow her private parts to be mashed and stimulated by the accused, which sexual favor was made as a condition for the employment of Ms. Yee in the Family Program of the Office of the accused, thus constituting sexual harassment.[1] Upon his arraignment, petitioner pled not guilty to the offense charged; hence, trial proceeded. Juliet Q. Yee, then a 22-year old fresh graduate of nursing, averred that on 28 November 1995 her father accompanied her to the office of petitioner at the City Health Office to seek employment. Juliets father and petitioner were childhood friends. Juliet was informed by the doctor that the City Health Office had just then filled up the vacant positions for nurses but that he would still see if he might be able to help her. The following day, 29 November 1995, Juliet and her father returned to the City Health Office, and they were informed by petitioner that a medical group from Texas, U.S.A., was coming to town in December to look into putting up a clinic in Lapasan, Cagayan de Oro, where she might be considered. On 01 December 1995, around nine oclock in the morning, she and her father went back to the office of petitioner. The latter informed her that there was a vacancy in a family planning project for the city and that, if she were interested, he could interview her for the job. Petitioner then started putting up to her a number of questions. When asked at one point whether or not she already had a boyfriend, she said no. Petitioner suggested that perhaps if her father were not around, she could afford to be honest in her answers to the doctor. The father, taking the cue, decided to leave. Petitioner then inquired whether she was still a virgin, explaining to her his theory on the various aspects of virginity. He hypothetically asked whether she would tell her family or friends if a male friend happened to intimately touch her. Petitioner later offered her the job where she would be the subject of a research program. She was requested to be back after lunch. Before proceeding to petitioners office that afternoon, Juliet dropped by at the nearby church to seek divine guidance as she felt so confused. When she got to the office, petitioner made several telephone calls to some hospitals to inquire whether there was any available opening for her. Not finding any, petitioner again offered her a job in the family planning research undertaking. She expressed hesitation if a physical examination would include hugging her but petitioner assured her that he was only kidding about it. Petitioner then invited her to go bowling. Petitioner told her to meet him at Borja Street so that people would not see them on board the same car together. Soon, at the designated place, a white car driven by petitioner stopped. She got in. Petitioner held her pulse and told her not to be scared. After dropping by at his house to put on his bowling attire, petitioner got back to the car. While driving, petitioner casually asked her if she already took her bath, and she said she was so in a hurry that she did not find time for it. Petitioner then inquired whether she had varicose veins, and she said no. Petitioner told her to raise her foot and lower her pants so that he might confirm it. She felt assured that it was all part of the research. Petitioner still pushed her pants down to her knees and held her thigh. He put his hands inside her panty until he reached her pubic hair. Surprised, she exclaimed hala ka! and instinctively pulled her pants up. Petitioner then touched her abdomen with his right hand saying words of endearment and letting the back of his palm touch her forehead. He told her to raise her shirt to check whether she had nodes or lumps. She hesitated for a while but, eventually, raised it up to her navel. Petitioner then fondled her breast. Shocked at what petitioner did, she lowered her shirt and embraced her bag to cover herself, telling him angrily that she was through with the research. He begged her not to tell anybody about what had just happened. Before she alighted from the car, petitioner urged her to reconsider her decision to quit. He then handed over to her P300.00 for her expenses.

Arriving home, she told her mother about her meeting with Dr. Jacutin and the money he gave her but she did not give the rest of the story. Her mother scolded her for accepting the money and instructed her to return it. In the morning of 04 December 1994, Juliet repaired to the clinic to return the money to petitioner but she was not able to see him until about one oclock in the afternoon. She tried to give back the money but petitioner refused to accept it. A week later, Juliet told her sister about the incident. On 16 December 1995, she attempted to slash her wrist with a fastener right after relating the incident to her mother. Noticing that Juliet was suffering from some psychological problem, the family referred her to Dr. Merlita Adaza for counseling. Dr. Adaza would later testify that Juliet, together with her sister, came to see her on 21 December 1995, and that Juliet appeared to be emotionally disturbed, blaming herself for being so stupid as to allow Dr. Jacutin to molest her. Dr. Adaza concluded that Juliets frustration was due to post trauma stress. Petitioner contradicted the testimony of Juliet Yee. He claimed that on 28 November 1995 he had a couple of people who went to see him in his office, among them, Juliet and her father, Pat. Justin Yee, who was a boyhood friend. When it was their turn to talk to petitioner, Pat. Yee introduced his daughter Juliet who expressed her wish to join the City Health Office. Petitioner replied that there was no vacancy in his office, adding that only the City Mayor really had the power to appoint city personnel. On 01 December 1995, the afternoon when the alleged incident happened, he was in a meeting with the Committee on Awards in the Office of the City Mayor. On 04 December 1995, when Juliet said she went to his office to return the P300.00, he did not report to the office for he was scheduled to leave for Davao at 2:35 p.m. to attend a hearing before the Office of the Ombudsman for Mindanao. He submitted in evidence a photocopy of his plane ticket. He asserted that the complaint for sexual harassment, as well as all the other cases filed against him by Vivian Yu, Iryn Salcedo, Mellie Villanueva and Pamela Rodis, were but forms of political harassment directed at him. The Sandiganbayan, through its Fourth Division, rendered its decision, dated 05 November 1999, penned by Mr. Justice Rodolfo G. Palattao, finding the accused, Dr. Rico Jacutin, guilty of the crime of Sexual Harassment under Republic Act No. 7877. The Sandiganbayan concluded: WHEREFORE, judgment is hereby rendered, convicting the accused RICO JACUTIN Y SALCEDO of the crime of Sexual Harassment, defined and punished under R.A. No. 7877, particularly Secs. 3 and 7 of the same Act, properly known as the Anti-Sexual Harassment Act of 1995, and is hereby sentenced to suffer the penalty of imprisonment of six (6) months and to pay a fine of Twenty Thousand (P20,000.00) Pesos, with subsidiary imprisonment in case of insolvency. Accused is further ordered to indemnify the offended party in the amount of Three Hundred Thousand (P300,000.00) Pesos, by way of moral damages; Two Hundred Thousand (P200,000.00) Pesos, by way of Exemplary damages and to pay the cost of suit.[2] In the instant recourse, it is contended that I. Petitioner cannot be convicted of the crime of sexual harassment in view of the inapplicability of Republic Act No. 7877 to the case at bar. II. Petitioner [has been] denied x x x his constitutional right to due process of law and presumption of innocence on account of the insufficiency of the prosecution evidence to sustain his conviction.[3] The above contentions of petitioner are not meritorious. Section 3 of Republic Act 7877 provides: SEC. 3. Work, Education or Training-related Sexual Harassment Defined. Work, education or training-related sexual harassment is committed by an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other

person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said Act. (a) In a work-related or employment environment, sexual harassment is committed when: (1) The sexual favor is made as a condition in the hiring or in the employment, reemployment or continued employment of said individual, or in granting said individual favorable compensation, terms, conditions, promotions, or privileges; or the refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in any way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee. Petitioner was the City Health Officer of Cagayan de Oro City, a position he held when complainant, a newly graduated nurse, saw him to enlist his help in her desire to gain employment. He did try to show an interest in her plight, her father being a boyhood friend, but finding no opening suitable for her in his office, he asked her about accepting a job in a family planning research project. It all started from there; the Sandiganbayan recited the rest of the story: x x x. Succeeding in convincing the complainant that her physical examination would be a part of a research, accused asked complainant if she would agree that her private parts (bolts) would be seen. Accused assured her that with her cooperation in the research, she would gain knowledge from it. As complainant looked upon the accused with utmost reverence, respect, and paternal guidance, she agreed to undergo the physical examination. At this juncture, accused abruptly stopped the interview and told the complainant to go home and be back at 2:00 oclock in the afternoon of the same day, December 1, 1995. Complainant returned at 2:00 oclock in the afternoon, but did not proceed immediately to the office of the accused, as she dropped by a nearby church to ask divine guidance, as she was confused and at a loss on how to resolve her present predicament. At 3:00 oclock in the afternoon, she went back to the office of the accused. And once inside, accused called up a certain Madonna, inquiring if there was a vacancy, but he was told that she would only accept a registered nurse. Complainant was about to leave the office of the accused when the latter prevailed upon her to stay because he would call one more hospital. In her presence, a call was made. But again accused told her that there was no vacancy. As all efforts to look for a job in other hospitals failed, accused renewed the offer to the complainant to be a part of the research in the Family Planning Program where there would be physical examination. Thereafter, accused motioned his two (2) secretaries to go out of the room. Upon moving closer to the complainant, accused asked her if she would agree to the offer. Complainant told him she would not agree because the research included hugging. He then assured her that he was just kidding and that a pre-schooler and high schooler have already been subjected to such examination. With assurance given, complainant changed her mind and agreed to the research, for she is now convinced that she would be of help to the research and would gain knowledge from it. At this point, accused asked her if she was a tomboy, she answered in the negative. He then instructed her to go with him but he would first play bowling, and later proceed with the research (physical examination). On the understanding of the complainant that they will proceed to the clinic where the research will be conducted, she agreed to go with the accused. But accused instructed her to proceed to Borja St. where she will just wait for him, as it was not good for people to see them riding in a car together. She walked from the office of the accused and proceeded to Borja St. as instructed. And after a while, a white car arrived. The door was opened to her and she was instructed by the accused to come inside. Inside the car, he called her attention why she was in a pensive mood. She retorted she was not. As they were seated side by side, the accused held her pulse and told her not to be scared. He informed her that he would go home for a while to put on his bowling attire. After a short while, he came back inside the car and asked her if she has taken a bath. She explained that she was not able to do so because she left the house hurriedly. Still while inside the car, accused directed

her to raise her foot so he could see whether she has varicose veins on her legs. Thinking that it was part of the research, she did as instructed. He told her to raise it higher, but she protested. He then instructed her to lower her pants instead. She did lower her pants, exposing half of her legs. But then the accused pushed it forward down to her knees and grabbed her legs. He told her to raise her shirt. Feeling as if she had lost control of the situation, she raised her shirt as instructed. Shocked, she exclaimed, hala ka! because he tried to insert his hand into her panty. Accused then held her abdomen, saying, you are like my daughter, Day! (Visayan word of endearment), and let the back of his palm touch her forehead, indicating the traditional way of making the young respect their elders. He again told her to raise her shirt. Feeling embarrassed and uncomfortable, yet unsure whether she was entertaining malice, she raised her shirt up to her breast. He then fondled her breast. Reacting, she impulsively lower her shirt and embraced her bar while silently asking God what was happening to her and asking the courage to resist accuseds physical advances. After a short while, she asked him if there could be a right place for physical examination where there would be many doctors. He just exclaimed, so you like that there are many doctors! Then he asked her if she has tooth decay. Thinking that he was planning to kiss her, she answered that she has lots of decayed teeth. He advised her then to have them treated. Finally, she informed him that she would not continue with the research. The accused retorted that complainant was entertaining malice and reminded her of what she earlier agreed; that she would not tell anybody about what happened. He then promised to give her P15,000.00 so that she could take the examination. She was about to open the door of the car when he suddenly grabbed her thigh, but this time, complainant instantly parried his hand with her bag.[4] While the City Mayor had the exclusive prerogative in appointing city personnel, it should stand to reason, nevertheless, that a recommendation from petitioner in the appointment of personnel in the municipal health office could carry good weight. Indeed, petitioner himself would appear to have conveyed, by his words and actions, an impression that he could facilitate Juliets employment. Indeed, petitioner would not have been able to take undue liberalities on the person of Juliet had it not been for his high position in the City Health Office of Cagayan de Oro City. The findings of the Sandiganbayan were bolstered by the testimony of Vivian Yu, petitioners secretary between 1979 to 1994, of Iryn Lago Salcedo, Public Health Nurse II, and of Farah Dongallo y Alkuino, a city health nurse, all of whom were said to have likewise been victims of perverse behavior by petitioner. The Sandiganbayan rightly rejected the defense of alibi proffered by petitioner, i.e., that he was at a meeting of the Committee on Awards; the court a quo said: There are some observations which the Court would like to point out on the evidence adduced by the defense, particularly in the Minutes of the meeting of the Awards Committee, as testified to by witness Myrna Maagad on September 8, 1998. First, admitted, Teresita I. Rozabal was the immediate supervisor of witness Myrna Maagad. The Notices to hold the meeting (Exh. 3-A and 3-B) were signed by Teresita Rozabal. But the Minutes of the meeting, Exh. 5, was signed by Myrna Maagad and not by Teresita Rozabal. The documents, Exhs. 3-A and 3-B certify that the officially designated secretary of the Awards Committee was Teresita Rozabal. Second, why was Myrna Maagad in possession of the attendance logbook and how was she able to personally bring the same in court when she testified on September 8, 1998, when in fact, she admitted during her testimony that she retired from the government service on December 1, 1997? Surely, Myrna Maagad could not still be the custodian of the logbook when she testified. And finally, in the logbook, under the sub-heading, Others Present, the attendance of those who attended was individually handwritten by the persons concerned who wrote and signed their names. But in the case of Dr. Tiro and Dr. Rico Jacutin, their names were handwritten by clerk

Sylvia Tan-Nerry, not by Dr. Tiro and Dr. Jacutin. However, Myrna Maagad testified that the logbook was passed around to attending individuals inside the conference room.[5] Most importantly, the Supreme Court is not a trier of facts, and the factual findings of the Sandiganbayan must be respected by, if not indeed conclusive upon, the tribunal,[6] no cogent reasons having been sufficiently shown to now hold otherwise. The assessment on the credibility of witnesses is a matter best left to the trial court because of its unique position of being able to observe that elusive and incommunicable evidence on the deportment of witnesses at the stand, an opportunity that is denied the appellate court.[7] Conformably with prevailing jurisprudence, the grant of moral and exemplary damages by the Sandiganbayan must be tempered to reasonable levels. Moral damages are not intended to enrich a complainant but are awarded only to enable an injured party obtain some means that would help obviate the sufferings sustained on account of the culpable action of an offender. Its award must not appear to be the result of passion or undue prejudice,[8] and it must always reasonably approximate the extent of injury and be proportional to the wrong committed. Indeed, Juliet should be recompensed for her mental anguish. Dr. Merlita F. Adaza, a psychological counseling expert, has found Juliet to be emotionally and psychologically disturbed and suffering from post trauma stress following her unpleasant experience with petitioner. The Court finds it fitting to award in favor of Juliet Yee P30,000.00 moral damages. In addition, she should be entitled to P20,000.00 exemplary damages to serve as a deterrent against, or as a negative incentive to curb, socially deleterious actions.[9] WHEREFORE, the questioned decision of the Sandiganbayan in Criminal Case No. 23799, finding Dr. Rico Jacutin y Salcedo GUILTY of the crime of Sexual Harassment defined and punished under Republic Act No. 7877, particularly Sections 3 and 7 thereof, and penalizing him with imprisonment of six (6) months and to pay a fine of Twenty Thousand (P20,000.00) Pesos, with subsidiary imprisonment in case of insolvency, is AFFIRMED. The Sandiganbayans award of moral and exemplary damages are MODIFIED; instead, petitioner is ordered to indemnify the offended party, Juliet Yee, in the amount of P30,000.00 and P20,000.00 by way of, respectively, moral damages and exemplary damages. Costs against petitioner. SO ORDERED. EN BANC [A.M. No. P-03-1697. October 1, 2003] JOCELYN S. PAISTE, complainant, vs. APRONIANO V. MAMENTA, JR., Clerk of Court II, Municipal Circuit Trial Court, Tayug-San Nicolas, Pangasinan, respondent. [A.M. No. P-03-1699. October 1, 2003] JOANNE S. GOLTIAO, complainant, vs. APRONIANO V. MAMENTA, JR., Clerk of Court II, Municipal Circuit Trial Court, Tayug-San Nicolas, Pangasinan, respondent. DECISION PER CURIAM: These consolidated administrative cases arose from two different complaints filed against respondent Aproniano V. Mamenta, Jr., Clerk of Court II, Municipal Circuit Trial Court of Tayug-San Nicolas, Pangasinan. In an affidavit-complaint filed with the Office of the Chief Justice,[1] dated August 10, 2001, complainant Joanne S. Goltiao charged him with gambling and drinking liquor during office hours, sexual harassment, arrogance and acts unbecoming of a government official. In another affidavit-complaint filed with the Office of the Court Administrator,[2] dated August

28, 2001, the other complainant Jocelyn C. Paiste charged him with conduct unbecoming of a public officer and with violation of the Anti-Graft and Corrupt Practices Act[3] for his failure to issue official receipt. After respondent denied the accusations against him in separate letters,[4] we resolved[5] to refer both cases to Hon. Ulysses Butuyan, Executive Judge of the Regional Trial Court of Tayug, Pangasinan for investigation, report and recommendation.[6] Separate investigations of the complaints were conducted. In A.M. No. P-03-1699 (formerly OCA I.P.I. No. 01-1202-P), evidence shows that complainant Goltiao is a Stenographer I of the MCTC of Tayug-San Nicolas since 1997. She testified[7] that on August 7, 2000, at about 3:00 p.m., a representative from the Plaridel Insurance Co. came to their office seeking clearance. She immediately prepared the necessary form and, together with the representative, went to see respondent in the courtroom to obtain his signature. When she asked him to sign the document, respondent, who was at that time playing tong-its (a card game) at the lawyers table with unnamed individuals, got angry and threw his cards. He shouted at her: Why did you bring them with you? Did you like them to bring me to the Supreme Court? She responded that such was not her intention and reminded him of his requirement that he must first see the applicants before he sign their clearance. He did not sign the clearance, sent then out and shouted Bullshit ka! at her thrice. They all then went out of the courtroom and proceeded back to the staff room. She went to her table and buried her face in her hands, crying. Respondent followed her and continued uttering unsavory remarks: Bullshit ka! Vulva of your mother! Why did you take the client there and even raised your voice? (Bullshit ka! Okinnam nga babai! Apay ta innalam dagita kliyente idiay sanak to rinayawan!) She replied that her parents taught them not to answer back at older people. He still shouted: Vulva of your mother! I wish you will die now! Whom are you bragging of? We will try each other. (Okinnam nga babai! Matay ka koma itattan! Apay sinno aya ti paglaslastog mo? Sige, agpipinnadas tayo.) Thereafter, he asked the utility aide to buy him four bottles of beer. Goltiao declared that her working relationship with the respondent is sometimes good and sometimes bad because of his ill temper.[8] He easily gets mad at her even for small, trivial mistakes. This situation started, according to her, when she told him to stop courting and sending her love notes as she is already a married woman. She related an incident which happened early one morning when he asked her to see him inside the judges chamber. At that time, the designated judge was not around. Once inside, she was told to sit in one of the chairs in front of the judges table. The respondent, who was sitting at the judges chair, then extended his hand to her, as if he wanted to shake her hands. She reciprocated by extending her hands and jokingly put his hands on her forehead (agmanmano). She afterwards tried to free her hands off his but he would no let her. Instead, he told her, Wait for a while, I would just like to tell you something. I love you, is that okay? Tell me that you love me too. No strings attached. She retorted, As if you are my father. Spurned, he got mad. This kind of incident happened at least ten more times. Furthermore, respondent sent her love notes. He wrote his love messages on pieces of paper in front of her and handed them to her.[9] She knew that they were intended for her as there was nobody else present when he gave the notes to her. He would also call her at her mothers house. She did not respond affirmatively to his display of affection as both of them are married. Finally, she explained that she filed a complaint against him only on August 10, 2001 because of the August 7, 2001 incident, when she got fed up at the way he treated her. Marilyn de Leon, also a court stenographer of MCTC Tayug-San Nicolas, corroborated the testimony of Goltiao.[10] She stated that she witnessed the incident on August 7, 2001, when respondent became angry at Goltiao after the latter went to ask for his signature while he was playing tong-its. She heard respondent shout foul words at Goltiao. She added that respondent gets mad at everyone at the office on trivial matter. She, too, received love notes from the respondent.

Court stenographer Glenda C. Ramirez also corroborated the testimony of Goltiao.[11] She declared that she witnessed the incident on August 7, 2001 at their office. She observed that respondent was fuming mad at Goltiao, when the latter asked him to sign a clearance form. She heard respondent shout at Goltiao inside the courtroom and at the staff room. Respondent got mad when Goltiao allowed the representatives of the insurance company to enter the courtroom, where he was playing tong-its. She related that she also received love notes from him. One time, after respondent signed her travel order she noticed the following message written on the order: 7:30 in the evening, Jollibee. She did not go out with him. She chose him as a principal sponsor on her wedding in the hope that he would treat her like his own child and that he would stop sending notes to her. This did not happen even as respondent continued to easily get mad at her for simple lapses. Renato Rombawa, a utility worker at the court, saw the incident on August 7, 2001, when respondent got mad at Goltiao inside the courtroom.[12] He did not know why he became furious. At the time of the incident, respondent was playing tong-its. Estifanio Acosta, Clerk III at the MCTC, stated that he likewise saw respondent got mad when Goltiao tried to obtain his signature for a clearance form.[13] Respondent, he recalled, was at that time playing tong-its. He knew that respondent gives love notes to Goltiao and Glenda Ramirez, as the two revealed this secret to him. Lastly, David Kagaoan testified that at about 3:00 oclock in the afternoon of August 7, 2001, somebody came to get a clearance from the court.[14] The clearance form was prepared by Goltiao who went to see the respondent at the courtroom. He then heard shouts of vulva of your mother, get out of here! from the room. He thought it came from the respondent, who was then playing tong-its. Rombawa, the utility worker, went inside the courtroom and brought the sobbing Goltiao out. He stated that complainant showed him some of the love notes respondent gave her. He knows it came from respondent as he is familiar with his signature. Respondent denied the allegations against him.[15] He admitted shouting at Goltiao because she, too, shouted at him. He declared that the complaint was intended to harass him and put him into shame and to remove him from office. He said that Goltiao and her witnesses resent his strictness and they want to continue with their bad ways in the office. Goltiao, Ramirez and de Leon come to office late but Goltiaos daily time record does not reflect her tardiness. She sells stenographic notes without remitting a single centavo to the Judiciary Development Fund (JDF). Witness Rombawa does not work in the office from 2:00 to 5:00 oclock in the afternoon. Witness Acosta is a habitual absentee, reports at 10:00 oclock and leaves after only an hour. He then returns at 2:00 oclock in the afternoon. He is hired by one Bobby Go as a driver. Witness Kagaoan is a habitual latecomer as he attends to his agricultural business first before going to the court. He adds that witnesses Rombawa, Acosta and Kagaoan all play tong-its either at the session hall of the court or the first floor of the building. On rebuttal, complainant Goltiao revealed that respondent invited her several times for a date at Jollibee, instructing her not to tell her husband about it.[16] Respondent countered that every time he invites her, it was with de Leon, Ramirez and other court personnel.[17] In A.M. No. P-03-1697 (formerly OCA I.P.I. No. 01-1196-P), complainant Paiste is the owner of JCP72 Insurance Agency, and as its proprietor, has transactions with the MCTC Tayug-San Nicolas. [18] She testified that on April 3, 2001 at about 2:00 p.m. she went to the court, together with a client, to post bail. When they arrived, they could not find the respondent. An employee named Marilyn accompanied then to one of the rooms at the hall of justice where the respondent was holding game cards and playing tong-its with some people. Marilyn called respondents attention telling him that somebody wants to post bail. Respondent retorted, You just go ahead upstairs. Why, could you not wait? They went ahead and respondent followed fifteen minutes after. She noticed that he was mad. They told him they want to post bail and he asked for the records of

the case. After examining the records, he slammed it and said, You go to Rosales! That is not our work! He also became angry when they followed him. On April 20, 2001, Paiste, an officemate and a client again went to the MCTC in Tayug-San Nicolas to post bail in connection with Criminal Case No. 7461. The respondent instructed them to go to the house of Judge Pastor. They went there as told but the judge rejected their papers. They returned the next day, a Saturday, after completing their documents. They came from the court where they met respondent, who accompanied them to the judges house. The judge approved the surety bond.[19] Later, they handed three thousand pesos (P3,000.00) to the respondent, two thousand four hundred pesos (P2,400.00) of which was for the JDF. They gave him the remaining six hundred pesos (P600.00) after he asked them, Paano naman yung sa akin? They understood that to mean that he was expecting some form of compensation as he accompanied them outside the office on a non-working day. They then demanded an official receipt for the two thousand four hundred pesos (P2,400.00) they paid him corresponding to the amount of the JDF. He told them to go to the court and get it the following Monday. That Monday, she sent one of her staff to get the receipt, but the latter reported to her that he did not issue one. She added that this is not the only time that he failed to issue her a receipt. In other cases, he also neglected to do so even after she has paid the mandatory JDF fees. A staff member of the MCTC Tayug-San Nicolas, Estifanio Acosta, verified the records of Criminal Case No. 7461 and stated that no official receipt appears on file although the personal bail bonds issued by the JCP72 Insurance Agency, bearing the date April 21, 2001, in favor of the several accused in the case were approved by the acting presiding judge of the court.[20] For his part, respondent merely denied the foregoing allegations in open court and waived presentation of evidence.[21] After investigation, the investigating judge rendered a Consolidated Report and Recommendation[22] finding respondent guilty of serious misconduct and accordingly proposed that he be sternly reprimanded and fined ten thousand pesos (P10,000.00), thus: Nonetheless, on the basis of the evidence adduced, barely refuted by the respondent, the undersigned finds him guilty of serious misconduct in office, consisting of abundantly substantiated offenses thus: 1. 2. Making undue advances through love notes to female subordinates; Indulging in card games during office hours;

3. Using abusive language in dealing with subordinates as well as with third persons seeking his services as clerk of court; and 4. Receiving payments for court fees without promptly issuing the corresponding receipts therefore. WHEREFORE, all of the foregoing premises and circumstances considered, the undersigned hereby respectfully recommends that respondent be sternly reprimanded, and fined in the amount of P10,000.00, for serious misconduct.[23] The report was forwarded to the Office of the Court Administrator (OCA). After evaluating the report and the records, the OCA proposed that a stiffer penalty must be imposed on respondent. On the basis of Sections 52, 54 and 55 of Memorandum Circular No. 19, series of 1999 of the Civil Service Commission,[24] it recommended that the two complaints be consolidated and docketed as a regular administrative case and that respondent be SUSPENDED for a period of one (1) year having been found Guilty of various offenses including the (sic) Grave Offenses and disgraceful and immoral conduct.[25]

A painstaking examination of the records of the cases convinces us that the respondent is guilty of the offenses charged against him. The evidence in A.M. No. P-03-1699 adequately establishes that he was guilty of gambling, using abusive language and sexually harassing his female subordinates. We find credible the categorical and straightforward testimonies of complainant Goltiao and her witnesses. Their frank and candid testimonies, unshaken by cross-examination and unflawed by inconsistencies or contradictions in their material points, deserve our full faith and belief.[26] In contrast, we are not persuaded by the denial put forward by the respondent. The purported motive he imputes against complainant and her witnesses for filing this case is not worthy of attention. He asserts that they just want him removed so they can continue with their bad ways in the office. It strikes us strange that he allowed these bad ways for a long time without taking any measures or reporting them to the OCA. Time and again, we have emphasized that court officers, circumscribed with heavy responsibility, must be the paragon of propriety and good behavior.[27] This is especially true for a clerk of court like the respondent. As a ranking officer of the court, it is incumbent upon him to set an example to his co-employees as to how they should conduct themselves in office; to see to it that his subordinates work efficiently in accordance with the rules and regulations of the civil service and the judiciary; and to provide then with a healthy working atmosphere wherein coworkers treat each other with respect, courtesy and cooperation, so that in the end public interest will be benefited.[28] Respondent failed to measure up to these standards. His use of offensive language towards complainant Goltiao reflects his impoliteness and lack of decorum. He shouted profanity at her, verbally abused her and even disrespected her mother. He did this in the presence of so many employees and clients of the court. Worse, there was no reason for him to unleash to her a fury of this kind. She was merely asking him to sign a clearance form and to examine the applicant pursuant to his specific instruction that he should first see the applicant for the clearance before he sign the form. In fine, she was just doing her job. The truth is, he got mad at her out of his fear that the client she brought along might report him to this court when they caught him in flagrante delicto gambling. Similarly objectionable is respondents penchant for playing tong-its (a card game) and gambling with other employees of the court. Gambling is illegal and is absolutely forbidden at court premises during office hours.[29] It generates unwholesome consequences on the gambler as it diverts his attention from the more important responsibilities of his job.[30] Respondent himself was very much aware of this prohibition and this is exactly the reason why he castigated the complainant for approaching him while he was playing cards, thus: Why did you bring then with you? Did you like them to bring me to the Supreme Court?[31] Worse, respondent was playing cards and gambling during office hours at the session hall of the courtroom, which is hardly the place for such undesirable activities. A courtroom is generally looked upon by people with high respect and regarded as a sacred place where witnesses testify under oath, where conflicts are resolved, rights adjudicated, and justice solemnly dispensed.[32] Making it a game room and a casino area diminishes its sanctity and dignity.[33] The undue advances respondent made to complainant Goltiao betrays his twisted sense of propriety. Many times, he declared his feelings for her and handed her love notes. He would then beseech her to say the same things to him. He proposed to have dinner dates with her at Jollibee. There were times that he cornered her at the judges chamber and unnecessarily held her hand. While professing ones amorous intention is not something that usually causes a hullabaloo, it becomes indecent and improper in this case considering he is complainant Goltiaos superior and both of them are married. His dissoluteness told itself when he went to the

extent of calling her at her mothers house and persuading her not to tell her husband about these incidents. It appears too that the complainant was not the exclusive object of respondents advances. Witnesses Marilyn de Leon and Glenda Ramirez testified that they also received love notes and invitations for dinner from him. Like a hunter out on the prowl, he victimized other female workers unabashedly professing his alleged feelings for them in utter disregard of the fact that they were his subordinates, they were married and they were young enough to be his daughters. Instead of he being in loco parentis over his subordinate employees, he preyed on them as he took advantage of his superior position.[34] Under the circumstances, we find respondent guilty of sexual harassment. His severely outrageous acts, which are an affront to women, constitute sexual harassment because they necessarily result in an intimidating, hostile, and offensive working environment for his female subordinates.[35] He abused the power and authority he exercises over them, which is the gravamen of the offense in sexual harassment.[36] Sexual harassment in the workplace is not about a man taking advantage of a woman by reason of sexual desire it is about power being exercised by a superior over his women subordinates.[37] That power emanates from the fact that he can remove them if they refuse his amorous advances.[38] There is likewise sufficient evidence in A.M. No. P-03-1697 to hold respondent administratively liable for his failure to issue official receipt after receiving court fees and for discourtesy. The testimony of complainant Paiste is worthy of belief. We find her categorical and consistent declarations credible, especially when viewed in the light of the fact that no ill-motive on her part was established.[39] Against her positive testimony, supported by documentary evidence based on official court records, the mere uncorroborated denial of the respondent deserves scant considerations.[40] The evidence shows that on April 21, 2001, complainant Paiste gave to the respondent the amount of two thousand four hundred pesos (P2,400.00) as bail bond of the accused in Criminal Case No. 7461. When she asked for an official receipt, he told her to get it the following Monday at the court. She sent an office representative that Monday as told but respondent did not issue any receipt. Further verification from the records of Criminal Case No. 7461 reveals that no copy of the official receipt appears on file indicating that no receipt was ever issued to complainant Paiste. Undoubtedly, respondent should have issued an official receipt when he received the sum of money from complainant Paiste. His failure to do so is a violation of the National Accounting and Auditing Manual which mandates that no payment of any nature shall be received by a collecting officer without immediately issuing an official receipt, in acknowledgment thereof.[41] It bears emphasis that there is no valid reason for his non-issuance of a receipt. Even if he argues that he could not issue an official receipt to the complainant Paiste as the transaction transpired on a Saturday and outside court premises, still, his failure to issue a receipt the following Monday is totally unjustified. We also find the rude and boorish manner respondent treated complainant Paiste and her client on April 3, 2001 uncalled for. His demeanor bordered on arrogance. He made them wait for fifteen minutes before he attended to their concern as they found him playing cards and gambling. He was very irritable the whole time he was talking to them. After he examined the record, he slammed it an told them to go to the court at Rosales. He then got annoyed when they followed him. To be sure, this is no way to treat court users. High strung and belligerent behavior has no place in government, especially in the judiciary, where the personnel are enjoined to act with self-restraint and civility at all times, even when confronted with rudeness and insolence.[42] They are expected to extend prompt, courteous and adequate service to the people.[43] Such conduct is exacted from them so that they will earn

and keep societys high regard for and confidence in the judicial service.[44] Conduct violative of this standard quickly and surely corrodes respect for the courts. It is the imperative and sacred duty of everyone charged with the dispensation of justice, from the judge to the lowliest clerk, to uphold the courts good name and standing as true temples of justice.[45] We do not agree with both the investigating judge and the OCA when they imposed a single penalty on the respondent for two cases. Although consolidated, the two cases are distinct and each one contains different charges. Respondent, as a consequence, must be separately held liable and penalized for the charges in each case. This brings us to the individual penalties which must be imposed on the respondent for each case. In A.M. No. P-03-1699, we hold that the gross discourtesy, gambling and sexual harassment he committed constituted serious misconduct and conduct prejudicial to the interest of the service which warrant his dismissal from office. He has been shown to lack the requisite professional and moral qualifications to continue as an employee in the judiciary. In A.M. No. P03-1697, his failure to issue a receipt amounted to gross neglect of duty while his grossly discourteous behavior is conduct unbecoming of a public officer. For this reason, we impose on him a suspension of one (1) month. IN VIEW WHEREOF, RESPONDENT Aproniano V. Mamenta, Jr. is found Guilty of gross discourtesy, gambling, and sexual harassment in A.M. No. P-03-1699 and is accordingly DISMISSED from the service with prejudice to re-employment in any branch, agency, or instrumentality of the Government, including government-owned and controlled corporations. He is likewise found Guilty of gross discourtesy and failure to issue an official receipt in A.M. No. P-03-1697 and is meted the penalty of suspension for a period of One (1) Month. Considering, however, that we already ordered his dismissal in A.M. No. P-03-1699, his suspension is moot. SO ORDERED.