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Republic of the Philippines COURT OF APPEALS Manila Second Division PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, - versus HENRY TAN,

Accused-Appellant. x------------------------------------------x CA G.R. CR NO. 35023

BRIEF FOR THE APPELLEE


Appellee PEOPLE, by counsel, to this Honorable Court, respectfully states:

STATEMENT OF THE CASE


In an Information docketed as Criminal Case No. 05-234757, filed with the Regional Trial Court (trial court), National Capital Judicial Region, Manila, and subsequently raffled to Branch 15 thereof, appellant Henry Tan was charged with Estafa under Article 315(2) a of the Revised Penal Code, allegedly committed as follows:
The undersigned accuses Henry Tan and Halil Zumrut of the crime of ESTAFA under Article 315, Par.2(a) of the Revised Penal Code committed as follows: That sometime in December 2003, in the City of Manila Philippines, the said accused, conspiring and confederating together and mutually helping each other, did

then and there willfully, unlawfuly and feloniously defraud Gideon J. Guillen prior to and even simultaneous with the commission of fraud, to the effect that they falsely pretended to possess business or transaction involving the obtainment of Royal Bank of Scotland Bank Guarantee in the amount of US$1,500,000,000.00 dollar, induced and succeeded in inducing said Gideon J. Guillen, to give and deliver, as in fact he gave, and delivered to the said accused the total amount of US$43,000.00 or its equivalent in Philippine Currency amounting to 2,150,000.00 more or less, on the strength of said manifestations and representations and in consideration of promised profit of US$1,740,000.00 and accused well knowing that the same were false and fraudulent (Records, p. 1)

Duly arraigned on March 12, 2002, appellant pleaded not guilty to the charge while his co-accused, Halil Zumrut, remained at large. (Brief For the Appellant, p. 4) Pre-trial was conducted on May 2, 2004 and terminated on July 19, 2006 (Id., p. 177). The case was referred to mediation but both parties failed to settle. Trial then ensued. On May 3, 2012, the trial court promulgated its Decision dated March 20, 2012 (Id., p. 382), the decretal portion of which reads:
WHEREFORE, this Court finds accuse Henry Tan GUILTY beyond reasonable doubt of the crime of Estafa defined and penalized under Article 315, paragraph 2(a) of the Revised Penal Code and is hereby sentenced to suffer the indeterminate sentence of four (4) years two (2) moths prision correccional as minimum to (20) years reclusion temporal as maximum and ordered to indemnify private complainant Gideon Guillen the amount of forty-three thousand US dollars (US$43,000.00) plus legal rate of interest from the time of demand. SO ORDERED. (Decision p. 8)

Aggrieved, appellant Henry Tan filed this appeal ascribing the following errors:

I. THE TRIAL COURT ERRED IN CONVICTING THE APPELLANT OF ESTAFA DEFINED AND PENALIZED UNDER ARTICLE 315, PARAGRAPH 2(a) OF THE REVISED PENAL CODE.

II. THE TRIAL COURT ERRED IN HOLDING THAT ACCUSED EMPLOYED FALSE PRETENSES WHEN HE PRETENDED TO POSSESS POWER, INFLUENCE OR CONNECTION IN SECURING STAND-BY LETTER OF CREDIT.

III. THE TRIAL COURT ERRED IN HOLDING THAT THE ACCUSED EMPLOYED FALSE PRETENSES PRIOR TO, AND SIMULTANEOUSLY WITH, THE FRAUDULENT REPRESENTATION THAT GUILLEN COULD SECURE A STAND-BY LETTER OF CREDIT PROVIDED HE GIVES FORTY-THREE THOUSAND US DOLLARS (US$43,000.00).

IV. THE TRIAL COURT ERRED IN HOLDING THAT GUILLEN RELIED ON FASLE PRETENSES OF ACCUSED HENRY TAN INDUCING HIM TO PART WITH THIS MONEY DUE TO THE MISREPRESENTATIONS EMPLOYED BY THE PERPETRATOR OF THE FRAUD.

V. THE TRIAL COURT ERRED IN HOLDING THAT PRIVATE COMPLAINANT SUFFERED DAMAGES IN THE AMOUNT OF FORTY-THREE THOUSAND US DOLLARS (US$43,000.00) AS A RESULT OF THE FALSE PRETENSES AND MISREPRESENTATIONS OF THE ACCUSED.

VI. THE TRIAL COURT ERRED IN HOLDING THAT ACCUSED TAN ASSURED GUILLEN THAT HE CAN SECURE A STAND BY LETTER OF CREDIT IF GUILLEN CAN PAY THE RENTAL FEE OF FORTY-THREE THOUSAND US DOLLARS ($43,000.00).

VII. THE TRIAL COURT ERRED IN HOLDING THAT THE PROSECUTION WAS ABLE TO ESTABLISHED THE ELEMENTS OF DECEIT AND DAMGE FOR THE FORM OF ESTAFA CHARGED IN THIS CASE.

VIII. THE TRIAL COURT ERRED IN HOLDING THAT THE DOCUMENTARY EVIDENCES CORROBORATE THE TESTIMONY OF PROSECUTION THAT INDEED ACCUSED TAN DEFRAUDED GUILLEN BY PRETENDING THAT HE CAN SECURE A STAND-BY LETTER OF CREDIT.

IX. THE TRIAL COURT ERRED IN HOLDING THAT THE PROSECUTION WITNESSES ARE CREDIBLE WITNESSES, OWING TO THEIR CATEGORICAL, STRAIGHTFORWARD,

SPONTANEOUS, FRANK MANNER CONSISTENCY IN THEIR TESTIMONIES.

AND

(Brief for the Appellant, pp. 1-2)

COUNTERSTATEMENT OF FACTS

The established facts as summarized by the trial court are as follows:


GIDEON JAVIER GUILLEN testified that accused Tan was introduced to him by a friend when he was trying to secure a stand-by letter of credit to be used in putting up a business in Cavite. A stand-by letter of credit is a sort of bank guarantee used in business transactions to get some sort of cash from a bank. Sometime in March 203, when he visited accused Tans office at Roxas Boulevard, he asked the accused if the latter can secure him a stand-by letter of credit. Accused answered that as long as Guillen can pay the rental fee amounting to forty-three thousand US dollars (US$43,000.00) he can secure such letter of credit. On December 4, 2003, together with Romeo Camaho and Amado Magno, he met accused Tan and gave him the amount of forty-three thousand dollars (US$43,000.00) in one hundred US dollar bills. The accused signed a verified undertaking and acknowledgment receipt. Guillen identified the document and the signatures appearing therein. Subsequently, accused issued an Export and Industry Bank check number 0002572577 (EIB check) with face value of two million four hundred fourteen thousand and four hundred fifty pesos (P2,414,450.00). The check was given to him by accused Tan though the signatory in said check was allegedly accused Halil Zumrut. Accused Tan told him that it will take two weeks to one month before he can receive the stand-by-letter of credit.

Further, Guillen mentioned that the serial numbers of the $100 bills were witten in a bond paper. On the said ocument he identified the signature appearing therein as that of accused Tan. He claimed that the accused affixed the signature in his presence. The original copy of the said document was with Deutsche Bank. He identified another document given to him by the accused which was a letter, with a topic of Bank Guarantee issued by Royal Bank of Scotland, London, U.K. He also identifie a document denominated as receipt. According to the accused the signature appearing therein belongs to accused Zumrut. He likewise acknowledged a letter dated December 2, 2003 handed by accused Tan who teold him to sign so that the letter can be given to accused Zumrut. He admitted that the signature appearing therein belongs to him. The documents he mentioned were all photocopies because the originals are in the possession of accused Tan. The stand-by-letter of credit as promised by accused Tn did not materialize. He demanded for the return of his money but accused kept on telling him to wait but no letter of credit was delivered. When he decided to encash the check it bounced for reason account closed. Subsequently, he filed the instant case against accused Tan and accused Zumrut. He spent one hundred thousand pesos (P100,000) for services of a counsel and three (3) thousand pesos per appearance. He was emotionally, mentally, physically and financially stressed because of what happened. He admitted having transacted business with accused Zumrut despite the fact that he has not personally met the latter. Accused Tan claimed that he is the partner of accused Zumrut. He paid accused Tan forty-three thousand US dollars (US$43,000) for stand by letter of credit and was not intended for the services rendered by accused Tan. (Records, pp.374-375)

ISSUE The sole and most basic issue in this case is: Whether appellants guilt for estafa was proven beyond reasonable doubt.

ARGUMENT
The trial court correctly convicted appellant of Estafa. Appellant contends that his conviction is erroneous because his guilt for estafa was not proven beyond reasonable doubt. Hence, he must be acquitted. Appellants contention lacks merit. To secure a conviction for estafa under Article 315, paragraph 2 (a) of the Revised Penal Code (RPC), the following requisites must concur:
(1) The accused made false pretenses or fraudulent representations as to his [her] power, influence, qualifications, property, credit, agency, business or imaginary transactions; (2) The false pretenses or fraudulent representations were made prior to or simultaneous with the commission of the fraud; (3) The false pretenses or fraudulent representations constitute the very cause which induced the offended party to part with his money or property; (4) That as a result thereof, the offended party suffered damage (Gonzaludo v. People, 481 SCRA 569 [2006]; Ansaldo v. People, 616 SCRA 556 [2010]).

In the case at bar, the prosecution successfully proved the guilt of the accused beyond reasonable doubt. First, accused Tan falsely represented to private complainant Guillen that he could secure a stand-by letter of credit for as long as Guillen can give him forty-three thousand US dollars ($43,000,00) allegedly as rental fee for processing the said stand-by letter of credit. DEFINE STAND-BY letter of credit. Arguably, the success of a stand-by letter of credit is subject to the approval of bank, but Appellant Tan promised a successful procurement of a

stand-by letter of credit without saying more. Thus, appellant falsely represented that he possessed the power, influence, or connection to secure a standby letter of credit in favor of Guillen on the sole condition that the latter shall give him $43,000.00. This false representation can be easily gleaned from the direct testimony of private complainant Gideon Guillen, thus:
COURT Q A Q A Q A Q A A Why do you want to secure a standby letter of credit? We are trying to put up a business somewhere in Cavite. We are securing a commercial place, Your Honor. Are you engaged in any business? Yes Your Honor, trading business. And do you operate under what is it a corporation or under partnership or sole proprietorship? Sole proprietorship, Your Honor. Do you have any name? Yes, You Honor. Guillen Traiding.

COURT Proceed. ATTY. MOLDEZ Q A After Henry Tan was introduced to you what did you do if anu? [sic] I called him at his office and then we made an appointment so that I can see him personally.

ATTY. MOLDEZ Q A Where did you meet him? Yes, sir I went to his office located at Roxas Blvd. infront [sic] of the US Embassy.

Q A Q A Q A Q a

Do you still recall the building? I cannot but I still remember the place. When did you first meet this Henry Tan? Sometime in March 2003 And what was your meeting all about? It was about a standby letter of credit And aside from that what did you talk about during that meeting? I was asking him if he can secure my a standby letter of credit and then he told me that he can give me one and promise that he can secure me as long as I can pay the rental fee. What is rental fee? It is a payment for the standby letter of credit for the duration of one year and one day. And how much was this rental fee? He was asking me for $43,000.00. And what did you say when you found out the amount of the rental fee? I told him I will try to raise the money first. And when you said that you will try to raise the money first what did Henry Tan say if any?

Q A Q A Q A Q

ATTY MOLDEZ A He told me if I can raise the money I would call him and meet again. 1 Xxx (Emphasis supplied)

TSN, May 28, 2007, pp 4-.6.

Second, prior to the date when private complainant paid the sum of $43,000.00 in favor of appellant Tan, the two met at different places to discuss the acquisition of the standby-letter of credit. It was at these meetings were appellant Tan informed Guillen on the possibility of securing the said standby-letter of credit from different banks such as Hongkong & Shanghai Bank, Union Bank and I Bank. This makes up for the second element in that the false pretenses or fraudulent representations were made prior to or simultaneous with the commission of the fraud. The direct testimony of the private complainant reveals, thus:
ATTY MOLDEZ: xxx Q A Q Q A Q Now aside from that initial meeting were there any other/subsequent meeting you have? Yes, sir we always meet besides his office we meet at the Robinsons Mall in Malate. In Carls . . And what is this meeting all about? It is about the standby letter of credit on different banks that can accommodate me. And what were the different banks which Henry Tan tell you that can/accommodate your standby letters of credit. As far as I remember Hendry Tan told me Hongkong & Shanghai Bank, Union Bank and I Bank. Now in the subsequent meetings who was with Henry Tan if you can recall? Mostly just the two of us So you were able to aise the amount of $43,000.00? Yes, sir. How were you $43,000.00? able to raise the amount of

A Q A Q A Q

A Q A

From my savings and loans from my friends and relatives. When were you able to raise that amount? Sometime in December 2004.

ATTY. MOLDEZ Q A Q A Q A Q A Q A Q A Q A Q A Q And after you were able to raise that amount what step if any did you take? I called Henry Tan I told him I am ready and I have the amount already. And where was this appointment? He gave the appointment we went to Deutsch bank in Makati it is a german bank. Where in Makati? At the Philippine Stocks Exchange Bldg. Did you in fact meet with Henry Tan? Yes, sir. What is the date you met Henry Tan after you raise d that amount of $43,000.00? December 4, 2003. When you met Henry Tan on you appointment who were with you if any? I was with my two friends. And what is the name of your friends? Romeo Camacho and Amado Magno. How about Henry Tan? He was with another friend onato Ramil. What happen when you met with Henry Tan after you raised that amount of $43,000.00? place of

I gave him personally that amount of $43,000.00 in $100.00 bills.2 xxx

TSN, May 28, 2007, pp. 6-8

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