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G.R. No.

192235 July 6, 2011

PEOPLE OF THE PHILIPPINES, Appellee,


vs.
ROLANDO LAYLO y CEPRES, Appellant.

DECISION

CARPIO, J.:

The Case

Before the Court is an appeal assailing the Decision1 dated 28 January 2010 of the Court of Appeals
(CA) in CA-G.R. CR-H.C. No. 03631. The CA affirmed the Decision 2 dated 16 September 2008 of the
Regional Trial Court (RTC) of Binangonan, Rizal, Branch 67, in Criminal Case No. 06-017, convicting
appellant Rolando Laylo y Cepres (Laylo) of violation of Section 26(b), Article II (Attempted Sale of
Dangerous Drugs)3 of Republic Act No. 91654 (RA 9165) or the Comprehensive Dangerous Drugs
Act of 2002.

The Facts

On 21 December 2005, two separate Informations against appellant Laylo and Melitona Ritwal
(Ritwal) were filed with the RTC of Binangonan, Rizal, Branch 67, docketed as Criminal Case Nos.
06-017 and 06-018, respectively. The information against Laylo states:

Criminal Case No. 06-017

That on or about the 17th day of December, 2005, in the Municipality of Binangonan, Province of
Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, not
being authorized by law to sell any dangerous drug, did then and there willfully, unlawfully, and
knowingly attempt to sell, deliver, and give away shabu to PO1 Angelito G. Reyes, 0.04 gram of
white crystalline substance contained in two (2) heat-sealed transparent plastic sachets which were
found positive to the test for Methylamphetamine Hydrochloride, also known as shabu, a dangerous
drug, thus commencing the commission of the crime of illegal sale but did not perform all the acts of
execution which would produce such crime by reason of some cause or accident other than the
accuseds own spontaneous desistance, that is, said PO1 Angelito G. Reyes introduced himself as
policeman, arrested the accused and confiscated the two (2) above-mentioned sachets from the
latter.

CONTRARY TO LAW.5

Upon arraignment, both accused pleaded not guilty. Joint trial on the merits ensued. However, during
the trial, Ritwal jumped bail and was tried in absentia. Thus, Ritwal was deemed to have waived the
presentation of her evidence and the case was submitted for decision without any evidence on her
part.

The prosecution presented two witnesses: Police Officer 1 (PO1) Angelito G. Reyes (PO1 Reyes)
and PO1 Gem A. Pastor (PO1 Pastor), the poseur-buyers in the attempted sale of illegal drugs.
The prosecution summed up its version of the facts: In the afternoon of 17 December 2005, PO1
Reyes and PO1 Pastor, both wearing civilian clothes, were conducting anti-drug surveillance
operations at Lozana Street, Calumpang, Binangonan, Rizal. While the police officers were in front
of a sari-sari store at around 5:40 p.m., appellant Laylo and his live-in partner, Ritwal, approached
them and asked, "Gusto mong umiskor ng shabu?" PO1 Reyes replied, "Bakit mayroon ka ba?"
Laylo then brought out two plastic bags containing shabu and told the police officers,
"Dos (P200.00) ang isa." Upon hearing this, the police officers introduced themselves as cops. PO1
Reyes immediately arrested Laylo. Ritwal, on the other, tried to get away but PO1 Pastor caught up
with her. PO1 Pastor then frisked Ritwal and found another sachet of shabu in a SIM card case
which Ritwal was carrying.

PO1 Reyes and PO1 Pastor marked the three plastic sachets of shabu recovered from Laylo and
Ritwal and forwarded them to the Philippine National Police Crime Laboratory for forensic testing.
Forensic Chemist Police Inspector Yehla C. Manaog conducted the laboratory examination on the
specimens submitted and found the recovered items positive for methylamphetamine hydrochloride
or shabu, a dangerous drug.

The police officers charged Laylo for attempted sale of illegal drugs and used the two plastic sachets
containing shabu as basis while Ritwal was charged for possession of illegal drugs using as basis
the third sachet containing 0.02 grams of shabu.

The defense, on the other hand, presented different versions of the facts. The witnesses presented
were: appellant Laylo; Laylos three neighbors namely Rodrigo Panaon, Jr., Marlon de Leon, and
Teresita Marquez.

Laylo testified that while he and his common-law wife, Ritwal, were walking on the street, two men
grabbed them. The two men, who they later identified as PO1 Reyes and PO1 Pastor, dragged them
to their house. Once inside, the police officers placed two plastic sachets in each of their pockets.
Afterwards, they were brought to the police station where, despite protests and claims that the drugs
were planted on them, they were arrested and charged.

To corroborate Laylos testimony, the defense presented Laylos three neighbors. Marlon de Leon
(de Leon), also a close friend of the couple, testified that he was taking care of the Laylo and
Ritwals child when he heard a commotion. He saw men, whom de Leon identified as assets, holding
the couple and claimed that he saw one of them put something, which he described as "plastic," in
the left side of Laylos jacket.

Rodrigo Panaon, Jr. (Panaon) narrated that on 17 December 2005, at around 5:00 or 6:00 p.m., he
was on his way home when he saw Laylo arguing with three men in an alley. He overheard Laylo
uttering, "Bakit ba? Bakit ba?" Later, Panaon saw a commotion taking place at Laylos backyard. The
three men arrested Laylo while the latter shouted, "Mga kapitbahay, tulungan ninyo kami, kamiy
dinadampot." Then Panaon saw someone place something inside the jacket of Laylo as he heard
Laylo say, "Wala kayong makukuha dito."

Teresita Marquez (Marquez) testified that while she was fetching water from the well on 17
December 2005, at around 5:00 or 6:00 p.m., she heard Laylos son shouting, "Amang, Amang."
Marquez then saw the child run to his father, who was with several male companions. Then
someone pulled Laylos collar and frisked him. Marquez overheard someone uttering, "Wala po,
wala po." Marquez went home after the incident. At around 9:00 in the evening, Ritwals daughter
visited her and borrowed money for Laylo and Ritwals release. Marquez then accompanied Ritwals
daughter to the municipal hall, where a man demanded P40,000.00 for the couples release.

In its Decision dated 16 September 2008, the RTC found Laylo and Ritwal guilty beyond reasonable
doubt of violations of RA 9165. The RTC gave credence to the testimonies of the police officers, who
were presumed to have performed their duties in a regular manner. The RTC stated that Reyes and
Pastor were straightforward and candid in their testimonies and unshaken by cross-examination.
Their testimonies were unflawed by inconsistencies or contradictions in their material points. The
RTC added that the denial of appellant Laylo is weak and self-serving and his allegation of planting
of evidence or frame-up can be easily concocted. Thus, Laylos defense cannot be given credence
over the positive and clear testimonies of the prosecution witnesses. The dispositive portion of the
decision states:

We thus find accused Rolando Laylo GUILTY beyond reasonable doubt of violating Section 26(b) of
R.A. No. 9165 and sentence him to suffer a penalty of life imprisonment and to pay a fine
of P500,000.00. We also find accused Melitona Ritwal GUILTY beyond reasonable doubt of violating
Section 11 of R.A. No. 9165 and illegally possessing a total of 0.02 grams of Methylamphetamine
Hydrochloride or shabu and accordingly sentence her to suffer an indeterminate penalty of 12 years
and one day as minimum to 13 years as maximum and to pay a fine of P300,000.00.

Let the drug samples in this case be forwarded to the Philippine Drug Enforcement Agency (PDEA)
for proper disposition. Furnish PDEA with a copy of this Decision per OCA Circular No. 70-2007.

SO ORDERED.6

Laylo filed an appeal with the CA. Laylo imputed the following errors on the RTC:

I. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT


OF THE OFFENSE CHARGED DESPITE THE PROSECUTION WITNESS PATENTLY
FABRICATED ACCOUNTS.

II. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT


OF THE OFFENSE CHARGED WHEN HIS GUILT WAS NOT PROVEN BEYOND
REASONABLE DOUBT.

III. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT


DESPITE THE APPREHENDING OFFICERS FAILURE TO PRESERVE THE INTEGRITY
OF THE ALLEGED SEIZED SHABU.7

The Ruling of the Court of Appeals

In a Decision dated 28 January 2010, the CA affirmed the decision of the RTC. The dispositive
portion of the decision states:

WHEREFORE, premises considered, the appeal is DISMISSED for lack of merit. The challenged
decision of the court a quo is AFFIRMED. Costs against the accused-appellant.

SO ORDERED.8
Hence, this appeal.

The Ruling of the Court

The appeal lacks merit.

The elements necessary for the prosecution of illegal sale of drugs are: (1) the identity of the buyer
and seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment. 9

In the present case, PO1 Reyes narrated in court the circumstances of the illegal sale:

PROS. ARAGONES:

Q: What time did you proceed to that place of surveillance?

A: 5:40 p.m., Maam.

Q: And what happened when you and PO1 Gem Pastor went there?

A: When we were making standby at a nearby store there was a man talking with a woman, the man
asked me if we want to have a shot of shabu.

Q: What was your reply?

A: "Bakit, meron ka ba?"

Q: How did that other person react to that question, what did he tell you, if any?

A: "Gusto mong umiskor ng shabu?"

Q: What happened after that?

A: I replied, "Bakit meron ka ba?" then he showed me two small plastic bags containing shabu,
Maam.

Q: How big is that bag, Mr. Witness?

A: Small, Maam.

Q: Can you tell us the size?

A: (Demonstrating) Almost one inch the size of a cigarette, Maam.

COURT: It was in a plastic not in foil?

A: Yes, your Honor.

PROS. ARAGONES:
Q: After showing you two plastic bags, what happened?

A: I introduced myself as a police officer then I caught this man and confiscated the two small plastic
bag containing shabu.

Q: How about the lady?

A: My partner caught the woman because she was intending to run away and he got from her right
hand Smart SIM card case containing one small plastic.10

PO1 Pastor corroborated the testimony of PO1 Reyes:

PROS. ARAGONES:

Q: Mr. Witness, while you were conducting surveillance on December 17, 2005, what happened?

A: While we were conducting surveillance at Lozana Street, Calumpang, Binangonan, Rizal, while
we were at the store, two (2) persons approached us, one male and one female, Maam.

Q: Who were those persons? Did you come to know the name of those persons?

A: At that time I dont know the names but when they were brought to the police station I came to
know their names, Maam.

Q: What are the names of these two persons?

A: Rolando Laylo and Melitona Ritwal, Maam.

Q: At that time they approached you during the time you were conducting surveillance at Lozana
Street, what happened?

A: The male person approached PO1 Reyes and asked if "iiskor", Maam.

Q: What was the reply of PO1 Reyes?

A: He answered "Bakit meron ka ba?"

Q: When that answer was given by Reyes, what did that male person do?

A: He produced two (2) small plastic sachets containing allegedly shabu and he said "dos ang isa."

COURT: What do you mean by "dos ang isa"?

A: Php 200.00, Your Honor.

PROS. ARAGONES:

Q: Where were you when that male person produced two (2) small plastic sachets?
A: I was beside PO1 Reyes, Maam.

Q: After he showed the plastic sachets containing drugs, what happened next?

A: We introduced ourselves as policemen, Maam.

Q: After you introduced yourselves, what happened next?

A: PO1 Reyes arrested the male person while I arrested the female person, Maam.

Q: Why did you arrest the woman?

A: At that time, she was about to run I confiscated from her a SIM card case, Maam.

COURT: What was the contents of the SIM card case?

A: One (1) piece of alleged shabu, Your Honor.11

From the testimonies given, PO1 Reyes and PO1 Pastor testified that they were the poseur-buyers
in the sale. Both positively identified appellant as the seller of the substance contained in plastic
sachets which were found to be positive for shabu. The same plastic sachets were likewise identified
by the prosecution witnesses when presented in court. Even the consideration of P200.00 for each
sachet had been made known by appellant to the police officers. However, the sale was interrupted
when the police officers introduced themselves as cops and immediately arrested appellant and his
live-in partner Ritwal. Thus, the sale was not consummated but merely attempted. Thus, appellant
was charged with attempted sale of dangerous drugs. Section 26(b), Article II of RA 9165 provides:

Section 26. Attempt or Conspiracy. Any attempt or conspiracy to commit the following unlawful acts
shall be penalized by the same penalty prescribed for the commission of the same as provided
under this Act:

xxx

(b) Sale, trading, administration, dispensation, delivery, distribution and transportation of any
dangerous drug and/or controlled precursor and essential chemical;

xxx

Here, appellant intended to sell shabu and commenced by overt acts the commission of the intended
crime by showing the substance to PO1 Reyes and PO1 Pastor.12 The sale was aborted when the
police officers identified themselves and placed appellant and Ritwal under arrest. From the
testimonies of the witnesses, the prosecution was able to establish that there was an attempt to sell
shabu. In addition, the plastic sachets were presented in court as evidence of corpus delicti. Thus,
the elements of the crime charged were sufficiently established by evidence.

Appellant claims that he was a victim of a frame up. However, he failed to substantiate his claim. The
witnesses presented by the defense were not able to positively affirm that illegal drugs were planted
on appellant by the police officers when they testified that "they saw someone place something
inside appellants jacket." In Quinicot v. People,13 we held that allegations of frame-up and extortion
by police officers are common and standard defenses in most dangerous drugs cases. They are
viewed by the Court with disfavor, for such defenses can easily be concocted and fabricated.

Appellant asserts that it is unbelievable that he would be so foolish and reckless to offer to sell
shabu to strangers. In People v. de Guzman,14 we have ruled that peddlers of illicit drugs have been
known, with ever increasing casualness and recklessness, to offer and sell their wares for the right
price to anybody, be they strangers or not. What matters is not the existing familiarity between the
buyer and the seller, or the time and venue of the sale, but the fact of agreement as well as the act
constituting the sale and delivery of the prohibited drugs.

Further, appellant did not attribute any ill-motive on the part of the police officers. The presumption of
regularity in the performance of the police officers official duties should prevail over the self-serving
denial of appellant.15

In sum, we see no reason to disturb the findings of the RTC and CA. Appellant was correctly found
1avvphi1

to be guilty beyond reasonable doubt of violating Section 26(b), Article II of RA 9165.

WHEREFORE, we DISMISS the appeal. We AFFIRM the Decision dated 28 January 2010 of the
Court of Appeals in CA-G.R. CR-H.C. No. 03631.

SO ORDERED.

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) Order 4 dated February 12,
2001, declaring that a motion for reconsideration in Criminal Case No. 25898 would be superfluous
as the issues are fairly simple and straightforward.

The factual antecedents follow.


On June 7, 1995, Republic Act (R.A.) No. 8047,5 or otherwise known as the "Book Publishing
Industry Development Act", was enacted into law. Foremost in its policy is the State's goal in
promoting the continuing development of the book publishing industry, through the active
participation of the private sector, to ensure an adequate supply of affordable, quality-produced
books for the domestic and export market.

To achieve this purpose, the law provided for the creation of the National Book Development Board
(NBDB or the Governing Board, for brevity), which shall be under the administration and supervision
of the Office of the President. The Governing Board shall be composed of eleven (11) members who
shall be appointed by the President of the Philippines, five (5) of whom shall come from the
government, while the remaining six (6) shall be chosen from the nominees of organizations of
private book publishers, printers, writers, book industry related activities, students and the private
education sector.

On February 26, 1996, petitioner was appointed to the Governing Board as a private sector
representative for a term of one (1) year.6 During that time, she was also the President of the Book
Suppliers Association of the Philippines (BSAP). She was on a hold-over capacity in the following
year. On September 14, 1998, she was again appointed to the same position and for the same
period of one (1) year.7 Part of her functions as a member of the Governing Board is to attend book
fairs to establish linkages with international book publishing bodies. On September 29, 1997, she
was issued by the Office of the President a travel authority to attend the Madrid International Book
Fair in Spain on October 8-12, 1997.8 Based on her itinerary of travel,9 she was
paid 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 Disallowances 12 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. 6713 13 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 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.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 Resolution 27 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 Anti-Graft
Law, which provides that a public officer includes elective and appointive officials and employees,
permanent or temporary, whether in the classified or unclassified or exempt service receiving
compensation, even nominal, from the government.33

Thus, pursuant to the Anti-Graft Law, one is a public officer if one has been elected or appointed to a
public office. Petitioner was appointed by the President to the Governing Board of the NDBD.
Though her term is only for a year that does not make her private person exercising a public
function. The fact that she is not receiving a monthly salary is also of no moment. Section 7, R.A. No.
8047 provides that members of the Governing Board shall receive per diem and such allowances as
may be authorized for every meeting actually attended and subject to pertinent laws, rules and
regulations. Also, under the Anti-Graft Law, the nature of one's appointment, and whether the
compensation one receives from the government is only nominal, is immaterial because the person
so elected or appointed is still considered a public officer.

On the other hand, the Revised Penal Code defines a public officer as any person who, by direct
provision of the law, popular election, popular election or appointment by competent authority, shall
take part in the performance of public functions in the Government of the Philippine Islands, or shall
perform in said Government or in any of its branches public duties as an employee, agent, or
subordinate official, of any rank or classes, shall be deemed to be a public officer.34

Where, as in this case, petitioner performs public functions in pursuance of the objectives of R.A.
No. 8047, verily, she is a public officer who takes part in the performance of public functions in the
government whether as an employee, agent, subordinate official, of any rank or classes. In fact,
during her tenure, petitioner took part in the drafting and promulgation of several rules and
regulations implementing R.A. No. 8047. She was supposed to represent the country in the canceled
book fair in Spain.

In fine, We hold that petitioner is a public officer. The next question for the Court to resolve is
whether, as a public officer, petitioner is within the jurisdiction of the Sandiganbayan.

Presently,35 the Sandiganbayan has jurisdiction over the following:

Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original jurisdiction in all cases
involving:

A. Violations of Republic Act No. 3019, as amended, other known as the Anti-Graft and Corrupt
Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised
Penal Code, where one or more of the accused are officials occupying the following positions in the
government, whether in a permanent, acting or interim capacity, at the time of the commission of the
offense:
(1) Officials of the executive branch occupying the positions of regional director and higher,
otherwise classified as Grade "27" and higher, of the Compensation and Position
Classification Act of 989 (Republic Act No. 6758), specifically including:

xxxx

(2) Members of Congress and officials thereof classified as Grade "Grade '27'" and up under
the Compensation and Position Classification Act of 1989;

(3) Members of the judiciary without prejudice to the provisions of the Constitution;

(4) Chairmen and members of Constitutional Commission, without prejudice to the provisions
of the Constitution; and

(5) All other national and local officials classified as Grade "Grade '27'" and higher under the
Compensation and Position Classification Act of 1989.

xxxx

Notably, the Director of Organization, Position Classification and Compensation Bureau, of the
Department of Budget and management provided the following information regarding the
compensation and position classification and/or rank equivalence of the member of the Governing
Board of the NBDB, thus:

Per FY 1999 Personal Services Itemization, the Governing Board of NDBD is composed of one (1)
Chairman (ex-officio), one (1) Vice-Chairman (ex-officio), and nine (9) Members, four (4) of whom
are ex-officio and the remaining five (5) members represent the private sector. The said five
members of the Board do not receive any salary and as such their position are not classified and are
not assigned any salary grade.

For purposes however of determining the rank equivalence of said positions, notwithstanding that
they do not have any salary grade assignment, the same may be equated to Board Member II, SG-
28.36

Thus, based on the Amended Information in Criminal Case No. 25898, petitioner belongs to the
employees classified as SG-28, included in the phrase "all other national and local officials classified
as Grade 27' and higher under the Compensation and Position Classification Act of 1989."

Anent the issue of double jeopardy, We can not likewise give in to the contentions advanced by
petitioner. She argued that her right against double jeopardy was violated when the Sandiganbayan
denied her motion to quash the two informations filed against her. 1avvphi1

We believe otherwise. Records show that the Informations in Criminal Case Nos. 25867 and 25898
refer to offenses penalized by different statues, R.A. No. 3019 and RPC, respectively. It is
elementary that for double jeopardy to attach, the case against the accused must have been
dismissed or otherwise terminated without his express consent by a court of competent jurisdiction,
upon valid information sufficient in form and substance and the accused pleaded to the charge. 37 In
the instant case, petitioner pleaded not guilty to the Information for violation of the Anti-Graft Law.
She was not yet arraigned in the criminal case for malversation of public funds because she had
filed a motion to quash the latter information. Double jeopardy could not, therefore, attach
considering that the two cases remain pending before the Sandiganbayan and that herein petitioner
had pleaded to only one in the criminal cases against her.

It is well settled that for a claim of double jeopardy to prosper, the following requisites must concur:
(1) there is a complaint or information or other formal charge sufficient in form and substance to
sustain a conviction; (2) the same is filed before a court of competent jurisdiction; (3) there is a valid
arraignment or plea to the charges; and (4) the accused is convicted or acquitted or the case is
otherwise dismissed or terminated without his express consent.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.

G.R. No. 175457 July 6, 2011

RUPERTO A. AMBIL, JR., Petitioner,


vs.
SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, Respondent.

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

G.R. No. 175482

ALEXANDRINO R. APELADO, SR., Petitioner,


vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

VILLARAMA, JR., J.:

Before us are two consolidated petitions for review on certiorari filed by petitioner Ruperto A. Ambil,
Jr.1 and petitioner Alexandrino R. Apelado Sr.2 assailing the Decision3 promulgated on September 16,
2005 and Resolution4 dated November 8, 2006 of the Sandiganbayan in Criminal Case No. 25892.

The present controversy arose from a letter5 of Atty. David B. Loste, President of the Eastern Samar
Chapter of the Integrated Bar of the Philippines (IBP), to the Office of the Ombudsman, praying for
an investigation into the alleged transfer of then Mayor Francisco Adalim, an accused in Criminal
Case No. 10963 for murder, from the provincial jail of Eastern Samar to the residence of petitioner,
then Governor Ruperto A. Ambil, Jr. In a Report6dated January 4, 1999, the National Bureau of
Investigation (NBI) recommended the filing of criminal charges against petitioner Ambil, Jr. for
violation of Section 3(e)7 of Republic Act (R.A.) No. 3019, otherwise known as the Anti-Graft and
Corrupt Practices Act, as amended. On September 22, 1999, the new President of the IBP, Eastern
Samar Chapter, informed the Ombudsman that the IBP is no longer interested in pursuing the case
against petitioners. Thus, he recommended the dismissal of the complaint against petitioners. 8

Nonetheless, in an Information9 dated January 31, 2000, petitioners Ambil, Jr. and Alexandrino R.
Apelado, Sr. were charged with violation of Section 3(e) of R.A. No. 3019, together with SPO3 Felipe
A. Balano. Upon reinvestigation, the Office of the Ombudsman issued a Memorandum 10 dated
August 4, 2000, recommending the dismissal of the complaint as regards Balano and the
amendment of the Information to include the charge of Delivering Prisoners from Jail under Article
15611 of the Revised Penal Code, as amended, (RPC) against the remaining accused. The Amended
Information12 reads:

That on or about the 6th day of September 1998, and for sometime prior [or] subsequent thereto, [in]
the Municipality of Borongan, Province of Eastern Samar, Philippines, and within the jurisdiction of
this Honorable Court, [the] above-named accused, Ruperto A. Ambil, Jr.[,] being then the Provincial
Governor of Eastern Samar, and Alexandrino R. Apelado, being then the Provincial Warden of
Eastern Samar, both having been public officers, duly elected, appointed and qualified as such,
committing the offense in relation to office, conniving and confederating together and mutually
helping x x x each other, with deliberate intent, manifest partiality and evident bad faith, did then and
there wilfully, unlawfully and criminally order and cause the release from the Provincial Jail of
detention prisoner Mayor Francisco Adalim, accused in Criminal Case No. 10963, for Murder, by
virtue of a warrant of Arrest issued by Honorable Arnulfo P. Bugtas, Presiding Judge, RTC-Branch 2,
Borongan, Eastern Samar, and thereafter placed said detention prisoner (Mayor Francisco Adalim)
under accused RUPERTO A. AMBIL, JR.s custody, by allowing said Mayor Adalim to stay at
accused Ambils residence for a period of Eighty-Five (85) days, more or less which act was done
without any court order, thus accused in the performance of official functions had given unwarranted
benefits and advantage to detainee Mayor Francisco Adalim to the prejudice of the government.

CONTRARY TO LAW.

BAIL BOND RECOMMENDED: P30,000.00 each.13

On arraignment, petitioners pleaded not guilty and posted bail.

At the pre-trial, petitioners admitted the allegations in the Information. They reason, however, that
Adalims transfer was justified considering the imminent threats upon his person and the dangers
posed by his detention at the provincial jail. According to petitioners, Adalims sister, Atty. Juliana A.
Adalim-White, had sent numerous prisoners to the same jail where Mayor Adalim was to be held.

Consequently, the prosecution no longer offered testimonial evidence and rested its case after the
admission of its documentary exhibits. Petitioners filed a Motion for Leave to File Demurrer to
Evidence with Reservation to Present Evidence in Case of Denial 14 but the same was denied.
At the trial, petitioners presented three witnesses: petitioner Ambil, Jr., Atty. Juliana A. Adalim-White
and Mayor Francisco C. Adalim.

Petitioner Ambil, Jr. testified that he was the Governor of Eastern Samar from 1998 to 2001.
According to him, it was upon the advice of Adalims lawyers that he directed the transfer of Adalims
detention to his home. He cites poor security in the provincial jail as the primary reason for taking
personal custody of Adalim considering that the latter would be in the company of inmates who were
put away by his sister and guards identified with his political opponents. 15

For her part, Atty. White stated that she is the District Public Attorney of Eastern Samar and the
sister of Mayor Adalim. She recounted how Mayor Adalim was arrested while they were attending a
wedding in Sulat, Eastern Samar, on September 6, 1998. According to Atty. White, she sought the
alternative custody of Gov. Ambil, Jr. after Provincial Warden and herein petitioner Apelado, Sr. failed
to guarantee the mayors safety.16

Meanwhile, Francisco Adalim introduced himself as the Mayor of Taft, Eastern Samar. He confirmed
his arrest on September 6, 1998 in connection with a murder case filed against him in the Regional
Trial Court (RTC) of Borongan, Eastern Samar. Adalim confirmed Atty. Whites account that he
spotted inmates who served as bodyguards for, or who are associated with, his political rivals at the
provincial jail. He also noticed a prisoner, Roman Akyatan, gesture to him with a raised clenched fist.
Sensing danger, he called on his sister for help. Adalim admitted staying at Ambil, Jr.s residence for
almost three months before he posted bail after the charge against him was downgraded to
homicide.17

Petitioner Apelado, Sr. testified that he was the Provincial Jail Warden of Eastern Samar. He recalls
that on September 6, 1998, SPO3 Felipe Balano fetched him at home to assist in the arrest of Mayor
Adalim. Allegedly, Atty. White was contesting the legality of Mayor Adalims arrest and arguing with
the jail guards against booking him for detention. At the provincial jail, petitioner was confronted by
Atty. White who informed him that he was under the governor, in the latters capacity as a provincial
jailer. Petitioner claims that it is for this reason that he submitted to the governors order to relinquish
custody of Adalim.18

Further, petitioner Apelado, Sr. described the physical condition of the jail to be dilapidated and
undermanned. According to him, only two guards were incharge of looking after 50 inmates. There
were two cells in the jail, each housing 25 inmates, while an isolation cell of 10 square meters was
unserviceable at the time. Also, there were several nipa huts within the perimeter for use during
conjugal visits.19

On September 16, 2005, the Sandiganbayan, First Division, promulgated the assailed
Decision20 finding petitioners guilty of violating Section 3(e) of R.A. No. 3019. The court ruled that in
moving Adalim to a private residence, petitioners have conspired to accord him unwarranted benefits
in the form of more comfortable quarters with access to television and other privileges that other
detainees do not enjoy. It stressed that under the Rules, no person under detention by legal process
shall be released or transferred except upon order of the court or when he is admitted to bail. 21

The Sandiganbayan brushed aside petitioners defense that Adalims transfer was made to ensure
his safety. It observed that petitioner Ambil, Jr. did not personally verify any actual threat on Adalims
life but relied simply on the advice of Adalims lawyers. The Sandiganbayan also pointed out the
availability of an isolation cell and nipa huts within the 10-meter-high perimeter fence of the jail which
could have been used to separate Adalim from other prisoners. Finally, it cited petitioner Ambil, Jr.s
failure to turn over Adalim despite advice from Assistant Secretary Jesus Ingeniero of the
Department of Interior and Local Government.

Consequently, the Sandiganbayan sentenced petitioner Ambil, Jr. to an indeterminate penalty of


imprisonment for nine (9) years, eight (8) months and one (1) day to twelve (12) years and four (4)
months. In favor of petitioner Apelado, Sr., the court appreciated the incomplete justifying
circumstance of obedience to a superior order and sentenced him to imprisonment for six (6) years
and one (1) month to nine (9) years and eight (8) months.

Hence, the present petitions.

Petitioner Ambil, Jr. advances the following issues for our consideration:

WHETHER OR NOT SECTION 3(e) REPUBLIC ACT NO. 3019, AS AMENDED, APPLIES
TO PETITIONERS CASE BEFORE THE SANDIGANBAYAN.

II

WHETHER OR NOT A PUBLIC OFFICER SUCH AS PETITIONER IS A PRIVATE PARTY


FOR PURPOSES OF SECTION 3(e), REPUBLIC ACT NO. 3019, AS AMENDED.

III

WHETHER OR NOT PETITIONER ACTED WITH DELIBERATE INTENT, MANIFEST


PARTIALITY, EVIDENT BAD FAITH OR GROSS INEXCUSABLE NEGLIGENCE IN THE
CONTEXT OF SAID SECTION 3(e).

IV

WHETHER OR NOT PETITIONER AS PROVINCIAL GOVERNOR AND JAILER UNDER


SECTIONS 1730 AND 1733, ARTICLE III, CHAPTER 45 OF THE ADMINISTRATIVE CODE
OF 1917 AND SECTION 61, CHAPTER V, REPUBLIC ACT 6975 HAS THE AUTHORITY TO
TAKE CUSTODY OF A DETENTION PRISONER.

WHETHER OR NOT PETITIONER IS ENTITLED TO THE JUSTIFYING CIRCUMSTANCE


OF FULFILLMENT OF A DUTY OR THE LAWFUL EXERCISE OF A RIGHT OR OFFICE.

VI

WHETHER OR NOT PETITIONER SHOULD HAVE BEEN ACQUITTED BECAUSE THE


PROSECUTION EVIDENCE DID NOT ESTABLISH HIS GUILT BEYOND REASONABLE
DOUBT.22
For his part, petitioner Apelado, Sr. imputes the following errors on the Sandiganbayan:

THERE WAS MISAPPREHENSION OF FACTS AND/OR MISAPPLICATION OF THE LAW


AND JURISPRUDENCE IN CONVICTING ACCUSED APELADO, EITHER AS PRINCIPAL
OR IN CONSPIRACY WITH HIS CO-ACCUSED AMBIL.

II

IN THE ABSENCE OF COMPETENT PROOF BEYOND REASONABLE DOUBT OF


CONSPIRACY BETWEEN ACCUSED AMBIL AND HEREIN PETITIONER, THE LATTER
SHOULD BE ACCORDED FULL CREDIT FOR THE JUSTIFYING CIRCUMSTANCE
UNDER PARAGRAPH 6, ARTICLE 11 OF THE REVISED PENAL CODE.

III

THE COURT A QUOS BASIS IN CONVICTING BOTH ACCUSED AMBIL AND HEREIN
PETITIONER OF HAVING GIVEN MAYOR ADALIM "UNWARRANTED BENEFITS AND
ADVANTAGE TO THE PREJUDICE x x x OF THE GOVERNMENT IS, AT THE MOST,
SPECULATIVE.23

The issues raised by petitioner Ambil, Jr. can be summed up into three: (1) Whether he is guilty
beyond reasonable doubt of violating Section 3(e), R.A. No. 3019; (2) Whether a provincial governor
has authority to take personal custody of a detention prisoner; and (3) Whether he is entitled to the
justifying circumstance of fulfillment of duty under Article 11(5)24 of the RPC.

Meanwhile, petitioner Apelado, Sr.s assignment of errors can be condensed into two: (1) Whether
he is guilty beyond reasonable doubt of violating Section 3(e), R.A. No. 3019; and (2) Whether he is
entitled to the justifying circumstance of obedience to an order issued by a superior for some lawful
purpose under Article 11(6)25 of the RPC.

Fundamentally, petitioner Ambil, Jr. argues that Section 3(e), R.A. No. 3019 does not apply to his
case because the provision contemplates only transactions of a pecuniary nature. Since the law
punishes a public officer who extends unwarranted benefits to a private person, petitioner avers that
he cannot be held liable for extending a favor to Mayor Adalim, a public officer. Further, he claims
good faith in taking custody of the mayor pursuant to his duty as a "Provincial Jailer" under
the Administrative Code of 1917. Considering this, petitioner believes himself entitled to the justifying
circumstance of fulfillment of duty or lawful exercise of duty.

Petitioner Apelado, Sr., on the other hand, denies allegations of conspiracy between him and
petitioner Ambil, Jr. Petitioner Apelado, Sr. defends that he was merely following the orders of a
superior when he transferred the detention of Adalim. As well, he invokes immunity from criminal
liability.

For the State, the Office of the Special Prosecutor (OSP) points out the absence of jurisprudence
that restricts the application of Section 3(e), R.A. No. 3019 to transactions of a pecuniary nature. The
OSP explains that it is enough to show that in performing their functions, petitioners have accorded
undue preference to Adalim for liability to attach under the provision. Further, the OSP maintains that
Adalim is deemed a private party for purposes of applying Section 3(e), R.A. No. 3019 because the
unwarranted benefit redounded, not to his person as a mayor, but to his person as a detention
prisoner accused of murder. It suggests further that petitioners were motivated by bad faith as
evidenced by their refusal to turn over Adalim despite instruction from Asst. Sec. Ingeniero. The OSP
also reiterates petitioners lack of authority to take custody of a detention prisoner without a court
order. Hence, it concludes that petitioners are not entitled to the benefit of any justifying
circumstance.

After a careful review of this case, the Court finds the present petitions bereft of merit.

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

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

xxxx

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

In order to hold a person liable under this provision, the following elements must concur: (1) the
accused must be a public officer discharging administrative, judicial or official functions; (2) he must
have acted with manifest partiality, evident bad faith or gross inexcusable negligence; and (3) his
action caused any undue injury to any party, including the government, or gave any private party
unwarranted benefits, advantage or preference in the discharge of his functions. 26

As to the first element, there is no question that petitioners are public officers discharging official
functions and that jurisdiction over them lay with the Sandiganbayan. Jurisdiction of the
Sandiganbayan over public officers charged with violation of the Anti-Graft Law is provided under
Section 4 of Presidential Decree No. 1606,27 as amended by R.A. No. 8249.28 The pertinent portions
of Section 4, P.D. No. 1606, as amended, read as follows:

SEC. 4. Jurisdiction.The Sandiganbayan shall exercise exclusive original jurisdiction in all cases
involving:

a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt
Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised
Penal Code, where one or more of the accused are officials occupying the following positions in the
government, whether in a permanent, acting or interim capacity, at the time of the commission of the
offense:

(1) Officials of the executive branch occupying the positions of regional director and higher,
otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of
1989 (Republic Act No. 6758), specifically including:
(a) Provincial governors, vice-governors, members of the sangguniang panlalawigan and provincial
treasurers, assessors, engineers and other provincial department heads[;]

xxxx

In cases where none of the accused are occupying positions corresponding to Salary Grade 27 or
higher, as prescribed in the said Republic Act No. 6758, or military and PNP officers mentioned
above, exclusive original jurisdiction thereof shall be vested in the proper regional trial court,
metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be,
pursuant to their respective jurisdiction as provided in Batas Pambansa Blg. 129, as amended.

xxxx

Thus, the jurisdiction of the Sandiganbayan over petitioner Ambil, Jr. is beyond question. The same
is true as regards petitioner Apelado, Sr. As to him, a Certification 29 from the Provincial Government
Department Head of the HRMO shows that his position as Provincial Warden is classified as Salary
Grade 22. Nonetheless, it is only when none of the accused are occupying positions corresponding
to salary grade 27 or higher shall exclusive jurisdiction be vested in the lower courts. Here,
petitioner Apelado, Sr. was charged as a co-principal with Governor Ambil, Jr., over whose position
the Sandiganbayan has jurisdiction. Accordingly, he was correctly tried jointly with said public officer
in the proper court which had exclusive original jurisdiction over them the Sandiganbayan.

The second element, for its part, describes the three ways by which a violation of Section 3(e) of
R.A. No. 3019 may be committed, that is, through manifest partiality, evident bad faith or gross
inexcusable negligence.

In Sison v. People,30 we defined "partiality," "bad faith" and "gross negligence" as follows:

"Partiality" is synonymous with "bias" which "excites a disposition to see and report matters as they
are wished for rather than as they are." "Bad faith does not simply connote bad judgment or
negligence; it imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong;
a breach of sworn duty through some motive or intent or ill will; it partakes of the nature of fraud."
"Gross negligence has been so defined as negligence characterized by the want of even slight care,
acting or omitting to act in a situation where there is a duty to act, not inadvertently but wilfully and
intentionally with a conscious indifference to consequences in so far as other persons may be
affected. It is the omission of that care which even inattentive and thoughtless men never fail to take
on their own property." x x x31

In this case, we find that petitioners displayed manifest partiality and evident bad faith in transferring
the detention of Mayor Adalim to petitioner Ambil, Jr.s house. There is no merit to petitioner Ambil,
Jr.s contention that he is authorized to transfer the detention of prisoners by virtue of his power as
the "Provincial Jailer" of Eastern Samar.

Section 28 of the Local Government Code draws the extent of the power of local chief executives
over the units of the Philippine National Police within their jurisdiction:

SEC. 28. Powers of Local Chief Executives over the Units of the Philippine National Police.The
extent of operational supervision and control of local chief executives over the police force, fire
protection unit, and jail management personnel assigned in their respective jurisdictions shall be
governed by the provisions of Republic Act Numbered Sixty-nine hundred seventy-five (R.A. No.
6975), otherwise known as "The Department of the Interior and Local Government Act of 1990," and
the rules and regulations issued pursuant thereto.

In particular, Section 61, Chapter 5 of R.A. No. 697532 on the Bureau of Jail Management and
Penology provides:

Sec. 61. Powers and Functions. - The Jail Bureau shall exercise supervision and control over all city
and municipal jails. The provincial jails shall be supervised and controlled by the provincial
government within its jurisdiction, whose expenses shall be subsidized by the National Government
for not more than three (3) years after the effectivity of this Act.

The power of control is the power of an officer to alter or modify or set aside what a subordinate
officer had done in the performance of his duties and to substitute the judgment of the former for that
of the latter.33 An officer in control lays down the rules in the doing of an act. If they are not followed,
he may, in his discretion, order the act undone or re-done by his subordinate or he may even decide
to do it himself.34

On the other hand, the power of supervision means "overseeing or the authority of an officer to see
to it that the subordinate officers perform their duties."35 If the subordinate officers fail or neglect to
fulfill their duties, the official may take such action or step as prescribed by law to make them
perform their duties. Essentially, the power of supervision means no more than the power of
ensuring that laws are faithfully executed, or that subordinate officers act within the law.36 The
supervisor or superintendent merely sees to it that the rules are followed, but he does not lay down
the rules, nor does he have discretion to modify or replace them.37

Significantly, it is the provincial government and not the governor alone which has authority to
exercise control and supervision over provincial jails. In any case, neither of said powers authorizes
the doing of acts beyond the parameters set by law. On the contrary, subordinates must be enjoined
to act within the bounds of law. In the event that the subordinate performs an act ultra vires, rules
may be laid down on how the act should be done, but always in conformity with the law.

In a desperate attempt to stretch the scope of his powers, petitioner Ambil, Jr. cites Section 1731,
Article III of the Administrative Code of 1917 on Provincial jails in support. Section 1731 provides:

SEC. 1731. Provincial governor as keeper of jail.The governor of the province shall be charged
with the keeping of the provincial jail, and it shall be his duty to administer the same in
accordance with law and the regulations prescribed for the government of provincial
prisons. The immediate custody and supervision of the jail may be committed to the care of a jailer
to be appointed by the provincial governor. The position of jailer shall be regarded as within the
unclassified civil service but may be filled in the manner in which classified positions are filled, and if
so filled, the appointee shall be entitled to all the benefits and privileges of classified employees,
except that he shall hold office only during the term of office of the appointing governor and until a
successor in the office of the jailer is appointed and qualified, unless sooner separated. The
provincial governor shall, under the direction of the provincial board and at the expense of
the province, supply proper food and clothing for the prisoners; though the provincial board
may, in its discretion, let the contract for the feeding of the prisoners to some other person.
(Emphasis supplied.)
This provision survived the advent of the Administrative Code of 1987. But again, nowhere did said
provision designate the provincial governor as the "provincial jailer," or even slightly suggest that he
is empowered to take personal custody of prisoners. What is clear from the cited provision is that the
provincial governors duty as a jail keeper is confined to the administration of the jail and the
procurement of food and clothing for the prisoners. After all, administrative acts pertain only to those
acts which are necessary to be done to carry out legislative policies and purposes already declared
by the legislative body or such as are devolved upon it 38 by the Constitution. Therefore, in the
exercise of his administrative powers, the governor can only enforce the law but not supplant it.

Besides, the only reference to a transfer of prisoners in said article is found in Section 1737 39 under
which prisoners may be turned over to the jail of the neighboring province in case the provincial jail
be insecure or insufficient to accommodate all provincial prisoners. However, this provision has been
superseded by Section 3, Rule 114 of the Revised Rules of Criminal Procedure, as amended.
Section 3, Rule 114 provides:

SEC. 3. No release or transfer except on court order or bail.-No person under detention by legal
process shall be released or transferred except upon order of the court or when he is admitted to
bail.

Indubitably, the power to order the release or transfer of a person under detention by legal process is
vested in the court, not in the provincial government, much less the governor. This was amply
clarified by Asst. Sec. Ingeniero in his communication40 dated October 6, 1998 addressed to
petitioner Ambil, Jr. Asst. Sec. Ingeniero wrote:

06 October 1996

GOVERNOR RUPERTO AMBIL


Provincial Capitol
Borongan, Eastern Samar

Dear Sir:

This has reference to the letter of Atty. Edwin B. Docena, and the reports earlier received by this
Department, relative to your alleged action in taking into custody Mayor Francisco "Aising" Adalim of
Taft, that province, who has been previously arrested by virtue by a warrant of arrest issued in
Criminal Case No. 10963.

If the report is true, it appears that your actuation is not in accord with the provision of Section 3,
Rule 113 of the Rules of Court, which mandates that an arrested person be delivered to the nearest
police station or jail.

Moreover, invoking Section 61 of RA 6975 as legal basis in taking custody of the accused municipal
mayor is misplaced. Said section merely speaks of the power of supervision vested unto the
provincial governor over provincial jails. It does not, definitely, include the power to take in custody
any person in detention.

In view of the foregoing, you are hereby enjoined to conduct yourself within the bounds of law and to
immediately deliver Mayor Adalim to the provincial jail in order to avoid legal complications.
Please be guided accordingly.

Very truly yours,

(SGD.)
JESUS I. INGENIERO
Assistant Secretary

Still, petitioner Ambil, Jr. insisted on his supposed authority as a "provincial jailer." Said petitioners
usurpation of the court's authority, not to mention his open and willful defiance to official advice in
order to accommodate a former political party mate,41 betray his unmistakable bias and the evident
bad faith that attended his actions.

Likewise amply established beyond reasonable doubt is the third element of the crime. As mentioned
above, in order to hold a person liable for violation of Section 3(e), R.A. No. 3019, it is required that
the act constituting the offense consist of either (1) causing undue injury to any party, including the
government, or (2) giving any private party any unwarranted benefits, advantage or preference in the
discharge by the accused of his official, administrative or judicial functions.

In the case at hand, the Information specifically accused petitioners of giving unwarranted benefits
and advantage to Mayor Adalim, a public officer charged with murder, by causing his release from
prison and detaining him instead at the house of petitioner Ambil, Jr. Petitioner Ambil, Jr. negates the
applicability of Section 3(e), R.A. No. 3019 in this case on two points. First, Section 3(e) is not
applicable to him allegedly because the last sentence thereof provides that the "provision shall apply
to officers and employees of offices or government corporations charged with the grant of licenses,
permits or other concessions" and he is not such government officer or employee. Second, the
purported unwarranted benefit was accorded not to a private party but to a public officer.

However, as regards his first contention, it appears that petitioner Ambil, Jr. has obviously lost sight,
if he is not altogether unaware, of our ruling in Mejorada v. Sandiganbayan42 where we held that a
prosecution for violation of Section 3(e) of the Anti-Graft Law will lie regardless of whether or not the
accused public officer is "charged with the grant of licenses or permits or other concessions."
Following is an excerpt of what we said in Mejorada,

Section 3 cited above enumerates in eleven subsections the corrupt practices of any public officers
(sic) declared unlawful. Its reference to "any public officer" is without distinction or qualification and it
specifies the acts declared unlawful. We agree with the view adopted by the Solicitor General that
the last sentence of paragraph [Section 3] (e) is intended to make clear the inclusion of officers and
employees of officers (sic) or government corporations which, under the ordinary concept of "public
officers" may not come within the term. It is a strained construction of the provision to read it as
applying exclusively to public officers charged with the duty of granting licenses or permits or other
concessions.43 (Italics supplied.)

In the more recent case of Cruz v. Sandiganbayan,44 we affirmed that a prosecution for violation of
said provision will lie regardless of whether the accused public officer is charged with the grant of
licenses or permits or other concessions.45

Meanwhile, regarding petitioner Ambil, Jr.s second contention, Section 2(b) of R.A. No. 3019 defines
a "public officer" to include elective and appointive officials and employees, permanent or temporary,
whether in the classified or unclassified or exemption service receiving compensation, even nominal
from the government. Evidently, Mayor Adalim is one. But considering that Section 3(e) of R.A. No.
3019 punishes the giving by a public officer of unwarranted benefits to a private party, does the fact
that Mayor Adalim was the recipient of such benefits take petitioners case beyond the ambit of said
law?

We believe not.

In drafting the Anti-Graft Law, the lawmakers opted to use "private party" rather than "private person"
to describe the recipient of the unwarranted benefits, advantage or preference for a reason. The
term "party" is a technical word having a precise meaning in legal parlance46 as distinguished from
"person" which, in general usage, refers to a human being. 47 Thus, a private person simply pertains
to one who is not a public officer. While a private party is more comprehensive in scope to mean
either a private person or a public officer acting in a private capacity to protect his personal interest.

In the present case, when petitioners transferred Mayor Adalim from the provincial jail and detained
him at petitioner Ambil, Jr.s residence, they accorded such privilege to Adalim, not in his official
capacity as a mayor, but as a detainee charged with murder. Thus, for purposes of applying the
provisions of Section 3(e), R.A. No. 3019, Adalim was a private party.

Moreover, in order to be found guilty under the second mode, it suffices that the accused has given
unjustified favor or benefit to another in the exercise of his official, administrative or judicial
functions.48 The word "unwarranted" means lacking adequate or official support; unjustified;
unauthorized or without justification or adequate reason. "Advantage" means a more favorable or
improved position or condition; benefit, profit or gain of any kind; benefit from some course of action.
"Preference" signifies priority or higher evaluation or desirability; choice or estimation above
another.49

Without a court order, petitioners transferred Adalim and detained him in a place other than the
provincial jail. The latter was housed in much more comfortable quarters, provided better
nourishment, was free to move about the house and watch television. Petitioners readily extended
these benefits to Adalim on the mere representation of his lawyers that the mayors life would be put
in danger inside the provincial jail.

As the Sandiganbayan ruled, however, petitioners were unable to establish the existence of any risk
on Adalims safety. To be sure, the latter would not be alone in having unfriendly company in lockup.
Yet, even if we treat Akyatans gesture of raising a closed fist at Adalim as a threat of aggression, the
same would still not constitute a special and compelling reason to warrant Adalims detention outside
the provincial jail. For one, there were nipa huts within the perimeter fence of the jail which could
have been used to separate Adalim from the rest of the prisoners while the isolation cell was
undergoing repair. Anyhow, such repair could not have exceeded the 85 days that Adalim stayed in
petitioner Ambil, Jr.s house. More importantly, even if Adalim could have proven the presence of an
imminent peril on his person to petitioners, a court order was still indispensable for his transfer.

The foregoing, indeed, negates the application of the justifying circumstances claimed by petitioners.

Specifically, petitioner Ambil, Jr. invokes the justifying circumstance of fulfillment of duty or lawful
exercise of right or office. Under paragraph 5, Article 11 of the RPC, any person who acts in the
fulfillment of a duty or in the lawful exercise of a right or office does not incur any criminal liability. In
order for this justifying circumstance to apply, two requisites must be satisfied: (1) the accused acted
in the performance of a duty or in the lawful exercise of a right or office; and (2) the injury caused or
the offense committed be the necessary consequence of the due performance of duty or the lawful
exercise of such right or office.50 Both requisites are lacking in petitioner Ambil, Jr.s case.

As we have earlier determined, petitioner Ambil, Jr. exceeded his authority when he ordered the
transfer and detention of Adalim at his house. Needless to state, the resulting violation of the Anti-
Graft Law did not proceed from the due performance of his duty or lawful exercise of his office.

In like manner, petitioner Apelado, Sr. invokes the justifying circumstance of obedience to an order
issued for some lawful purpose. Under paragraph 6, Article 11 of the RPC, any person who acts in
obedience to an order issued by a superior for some lawful purpose does not incur any criminal
liability. For this justifying circumstance to apply, the following requisites must be present: (1) an
order has been issued by a superior; (2) such order must be for some lawful purpose; and (3) the
means used by the subordinate to carry out said order is lawful. 51 Only the first requisite is present in
this case.

While the order for Adalims transfer emanated from petitioner Ambil, Jr., who was then Governor,
neither said order nor the means employed by petitioner Apelado, Sr. to carry it out was lawful. In his
capacity as the Provincial Jail Warden of Eastern Samar, petitioner Apelado, Sr. fetched Mayor
Adalim at the provincial jail and, unarmed with a court order, transported him to the house of
petitioner Ambil, Jr. This makes him liable as a principal by direct participation under Article 17(1) 52 of
the RPC.

An accepted badge of conspiracy is when the accused by their acts aimed at the same object, one
performing one part of and another performing another so as to complete it with a view to the
attainment of the same object, and their acts although apparently independent were in fact
concerted and cooperative, indicating closeness of personal association, concerted action and
concurrence of sentiments.53

Conspiracy was sufficiently demonstrated by petitioner Apelado, Sr.s willful cooperation in executing
petitioner Ambil, Jr.s order to move Adalim from jail, despite the absence of a court order. Petitioner
Apelado, Sr., a law graduate, cannot hide behind the cloak of ignorance of the law. The Rule
requiring a court order to transfer a person under detention by legal process is elementary. Truth be
told, even petitioner governor who is unschooled in the intricacies of the law expressed reservations
on his power to transfer Adalim. All said, the concerted acts of petitioners Ambil, Jr. and Apelado, Sr.
resulting in the violation charged, makes them equally responsible as conspirators.

As regards the penalty imposed upon petitioners, Section 9(a) of R.A. No. 3019 punishes a public
officer or a private person who violates Section 3 of R.A. No. 3019 with imprisonment for not less
than six (6) years and one (1) month to not more than fifteen (15) years and perpetual
disqualification from public office. Under Section 1 of the Indeterminate Sentence Law or Act No.
4103, as amended by Act No. 4225, if the offense is punished by a special law, the court shall
sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed
the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed
by the same. 1avvphi1

Thus, the penalty imposed by the Sandiganbayan upon petitioner Ambil, Jr. of imprisonment for nine
(9) years, eight (8) months and one (1) day to twelve (12) years and four (4) months is in accord with
law. As a co-principal without the benefit of an incomplete justifying circumstance to his credit,
petitioner Apelado, Sr. shall suffer the same penalty.

WHEREFORE, the consolidated petitions are DENIED. The Decision of the Sandiganbayan in
Criminal Case No. 25892 is AFFIRMED WITH MODIFICATION. We find petitioners Ruperto A.
Ambil, Jr. and Alexandrino R. Apelado, Sr. guilty beyond reasonable doubt of violating Section 3(e),
R.A. No. 3019. Petitioner Alexandrino R. Apelado, Sr. is, likewise, sentenced to an indeterminate
penalty of imprisonment for nine (9) years, eight (8) months and one (1) day to twelve (12) years and
four (4) months.

With costs against the petitioners.

SO ORDERED.

G.R. No. 193707 December 10, 2014

NORMA A. DEL SOCORRO, for and in behalf of her minor child RODERIGO NORJO VAN
WILSEM,Petitioner,
vs.
ERNST JOHAN BRINKMAN VAN WILSEM, Respondent.

DECISION

PERALTA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to
reverse and set aside the Orders dated February 19, 2010 and September 1, 2010, respectively, of
1

the Regional Trial Court of Cebu City (RTC-Cebu), which dismissed the criminal case entitled People
of the Philippines v. Ernst Johan Brinkman Van Wilsem, docketed as Criminal Case No. CBU-85503,
for violation of Republic Act (R.A.) No. 9262, otherwise known as the Anti-Violence Against Women
and Their Children Act of 2004.

The following facts are culled from the records:

Petitioner Norma A. Del Socorro and respondent Ernst Johan Brinkman Van Wilsem contracted
marriage in Holland on September 25, 1990. On January 19, 1994, they were blessed with a son
2

named Roderigo Norjo Van Wilsem, who at the time of the filing of the instant petition was sixteen
(16) years of age.3

Unfortunately, their marriage bond ended on July 19, 1995 by virtue of a Divorce Decree issued by
the appropriate Court of Holland. At that time, their son was only eighteen (18) months
4

old. Thereafter, petitioner and her son came home to the Philippines.
5 6

According to petitioner, respondent made a promise to provide monthly support to their son in the
amount of Two Hundred Fifty (250) Guildene (which is equivalent to Php17,500.00 more or
less). However, since the arrival of petitioner and her son in the Philippines, respondent never gave
7

support to the son, Roderigo. 8

Not long thereafter, respondent cameto the Philippines and remarried in Pinamungahan, Cebu, and
since then, have been residing thereat. Respondent and his new wife established a business known
9

as Paree Catering, located at Barangay Tajao, Municipality of Pinamungahan, Cebu City. To date, 10

all the parties, including their son, Roderigo, are presently living in Cebu City. 11

On August 28, 2009, petitioner, through her counsel, sent a letter demanding for support from
respondent. However, respondent refused to receive the letter. 12

Because of the foregoing circumstances, petitioner filed a complaint affidavit with the Provincial
Prosecutor of Cebu City against respondent for violation of Section 5, paragraph E(2) of R.A. No.
9262 for the latters unjust refusal to support his minor child with petitioner. Respondent submitted
13

his counter-affidavit thereto, to which petitioner also submitted her reply-affidavit. Thereafter, the
14

Provincial Prosecutor of Cebu City issued a Resolution recommending the filing of an information for
the crime charged against herein respondent.

The information, which was filed with the RTC-Cebu and raffled to Branch 20 thereof, states that:

That sometime in the year 1995 and up to the present, more or less, in the Municipality of
Minglanilla, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there wilfully, unlawfully and deliberately deprive, refuse and
still continue to deprive his son RODERIGO NORJO VAN WILSEM, a fourteen (14) year old minor,
of financial support legally due him, resulting in economic abuse to the victim. CONTRARY TO
LAW. 15

Upon motion and after notice and hearing, the RTC-Cebu issued a Hold Departure Order against
respondent. Consequently, respondent was arrested and, subsequently, posted bail. Petitioner also
16 17

filed a Motion/Application of Permanent Protection Order to which respondent filed his


Opposition. Pending the resolution thereof, respondent was arraigned. Subsequently, without the
18 19

RTC-Cebu having resolved the application of the protection order, respondent filed a Motion to
Dismiss on the ground of: (1) lack of jurisdiction over the offense charged; and (2) prescription of the
crime charged. 20

On February 19, 2010, the RTC-Cebu issued the herein assailed Order, dismissing the instant
21

criminal case against respondent on the ground that the facts charged in the information do not
constitute an offense with respect to the respondent who is an alien, the dispositive part of which
states:

WHEREFORE, the Court finds that the facts charged in the information do not constitute an offense
with respect to the accused, he being an alien, and accordingly, orders this case DISMISSED.

The bail bond posted by accused Ernst Johan Brinkman Van Wilsem for his provisional liberty is
hereby cancelled (sic) and ordered released.

SO ORDERED.

Cebu City, Philippines, February 19, 2010. 22


Thereafter, petitioner filed her Motion for Reconsideration thereto reiterating respondents obligation
to support their child under Article 195 of the Family Code, thus, failure to do so makes him liable
23

under R.A. No. 9262 which "equally applies to all persons in the Philippines who are obliged to
support their minor children regardless of the obligors nationality." 24

On September 1, 2010, the lower court issued an Order denying petitioners Motion for
25

Reconsideration and reiterating its previous ruling. Thus:

x x x The arguments therein presented are basically a rehash of those advanced earlier in the
memorandum of the prosecution. Thus, the court hereby reiterates its ruling that since the accused
is a foreign national he is not subject to our national law (The Family Code) in regard to a parents
duty and obligation to givesupport to his child. Consequently, he cannot be charged of violating R.A.
9262 for his alleged failure to support his child. Unless it is conclusively established that R.A. 9262
applies to a foreigner who fails to give support tohis child, notwithstanding that he is not bound by
our domestic law which mandates a parent to give such support, it is the considered opinion of the
court that no prima faciecase exists against the accused herein, hence, the case should be
dismissed.

WHEREFORE, the motion for reconsideration is hereby DENIED for lack of merit.

SO ORDERED.

Cebu City, Philippines, September 1, 2010. 26

Hence, the present Petition for Review on Certiorari raising the following issues:

1. Whether or not a foreign national has an obligation to support his minor child under
Philippine law; and

2. Whether or not a foreign national can be held criminally liable under R.A. No. 9262 for his
unjustified failure to support his minor child.27

At the outset, let it be emphasized that We are taking cognizance of the instant petition despite the
fact that the same was directly lodged with the Supreme Court, consistent with the ruling in Republic
v. Sunvar Realty Development Corporation, which lays down the instances when a ruling of the trial
28

court may be brought on appeal directly to the Supreme Court without violating the doctrine of
hierarchy of courts, to wit:

x x x Nevertheless, the Rules do not prohibit any of the parties from filing a Rule 45 Petition with this
Court, in case only questions of law are raised or involved. This latter situation was one that
petitioners found themselves in when they filed the instant Petition to raise only questions of law. In
Republic v. Malabanan, the Court clarified the three modes of appeal from decisions of the RTC, to
wit: (1) by ordinary appeal or appeal by writ of error under Rule 41, whereby judgment was rendered
in a civil or criminal action by the RTC in the exercise of its original jurisdiction; (2) by a petition for
review under Rule 42, whereby judgment was rendered by the RTC in the exercise of its appellate
jurisdiction; and (3) by a petition for review on certiorari before the Supreme Court under Rule 45.
"The first mode of appeal is taken to the [Court of Appeals] on questions of fact or mixed questions
of fact and law. The second mode of appeal is brought to the CA on questions of fact, of law, or
mixed questions of fact and law. The third mode of appealis elevated to the Supreme Court only on
questions of law." (Emphasis supplied)

There is a question of law when the issue does not call for an examination of the probative value of
the evidence presented or of the truth or falsehood of the facts being admitted, and the doubt
concerns the correct application of law and jurisprudence on the matter. The resolution of the issue
must rest solely on what the law provides on the given set of circumstances. 29

Indeed, the issues submitted to us for resolution involve questions of law the response thereto
concerns the correct application of law and jurisprudence on a given set of facts, i.e.,whether or not
a foreign national has an obligation to support his minor child under Philippine law; and whether or
not he can be held criminally liable under R.A. No. 9262 for his unjustified failure to do so.

It cannot be negated, moreover, that the instant petition highlights a novel question of law
concerning the liability of a foreign national who allegedly commits acts and omissions punishable
under special criminal laws, specifically in relation to family rights and duties. The inimitability of the
factual milieu of the present case, therefore, deserves a definitive ruling by this Court, which will
eventually serve as a guidepost for future cases. Furthermore, dismissing the instant petition and
remanding the same to the CA would only waste the time, effort and resources of the courts. Thus, in
the present case, considerations of efficiency and economy in the administration of justice should
prevail over the observance of the hierarchy of courts.

Now, on the matter of the substantive issues, We find the petition meritorious. Nonetheless, we do
not fully agree with petitioners contentions.

To determine whether or not a person is criminally liable under R.A. No. 9262, it is imperative that
the legal obligation to support exists.

Petitioner invokes Article 195 of the Family Code, which provides the parents obligation to support
30

his child. Petitioner contends that notwithstanding the existence of a divorce decree issued in
relation to Article 26 of the Family Code, respondent is not excused from complying with his
31

obligation to support his minor child with petitioner.

On the other hand, respondent contends that there is no sufficient and clear basis presented by
petitioner that she, as well as her minor son, are entitled to financial support. Respondent also
32

added that by reason of the Divorce Decree, he is not obligated topetitioner for any financial
support.33

On this point, we agree with respondent that petitioner cannot rely on Article 195 of the New Civil
34

Code in demanding support from respondent, who is a foreign citizen, since Article 15 of the New
35

Civil Code stresses the principle of nationality. In other words, insofar as Philippine laws are
concerned, specifically the provisions of the Family Code on support, the same only applies to
Filipino citizens. By analogy, the same principle applies to foreigners such that they are governed by
their national law with respect to family rights and duties.36

The obligation to give support to a child is a matter that falls under family rights and duties. Since the
respondent is a citizen of Holland or the Netherlands, we agree with the RTC-Cebu that he is subject
to the laws of his country, not to Philippinelaw, as to whether he is obliged to give support to his
child, as well as the consequences of his failure to do so. 37
In the case of Vivo v. Cloribel, the Court held that
38

Furthermore, being still aliens, they are not in position to invoke the provisions of the Civil Code of
the Philippines, for that Code cleaves to the principle that family rights and duties are governed by
their personal law, i.e.,the laws of the nation to which they belong even when staying in a foreign
country (cf. Civil Code, Article 15).39

It cannot be gainsaid, therefore, that the respondent is not obliged to support petitioners son under
Article195 of the Family Code as a consequence of the Divorce Covenant obtained in Holland. This
does not, however, mean that respondent is not obliged to support petitioners son altogether.

In international law, the party who wants to have a foreign law applied to a dispute or case has the
burden of proving the foreign law. In the present case, respondent hastily concludes that being a
40

national of the Netherlands, he is governed by such laws on the matter of provision of and capacity
to support. While respondent pleaded the laws of the Netherlands in advancing his position that he
41

is not obliged to support his son, he never proved the same.

It is incumbent upon respondent to plead and prove that the national law of the Netherlands does not
impose upon the parents the obligation to support their child (either before, during or after the
issuance of a divorce decree), because Llorente v. Court of Appeals, has already enunciated that:
42

True, foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to
takejudicial notice of them. Like any other fact, they must be alleged and proved. 43

In view of respondents failure to prove the national law of the Netherlands in his favor, the doctrine
of processual presumption shall govern. Under this doctrine, if the foreign law involved is not
properly pleaded and proved, our courts will presume that the foreign law is the same as our local or
domestic or internal law. Thus, since the law of the Netherlands as regards the obligation to support
44

has not been properly pleaded and proved in the instant case, it is presumed to be the same with
Philippine law, which enforces the obligation of parents to support their children and penalizing the
non-compliance therewith.

Moreover, while in Pilapil v. Ibay-Somera, the Court held that a divorce obtained in a foreign land as
45

well as its legal effects may be recognized in the Philippines in view of the nationality principle on the
matter of status of persons, the Divorce Covenant presented by respondent does not completely
show that he is notliable to give support to his son after the divorce decree was issued. Emphasis is
placed on petitioners allegation that under the second page of the aforesaid covenant, respondents
obligation to support his child is specifically stated, which was not disputed by respondent.
46

We likewise agree with petitioner that notwithstanding that the national law of respondent states that
parents have no obligation to support their children or that such obligation is not punishable by law,
said law would still not find applicability,in light of the ruling in Bank of America, NT and SA v.
American Realty Corporation, to wit:
47

In the instant case, assuming arguendo that the English Law on the matter were properly pleaded
and proved in accordance with Section 24, Rule 132 of the Rules of Court and the jurisprudence laid
down in Yao Kee, et al. vs. Sy-Gonzales, said foreign law would still not find applicability.
Thus, when the foreign law, judgment or contract is contrary to a sound and established public policy
of the forum, the said foreign law, judgment or order shall not be applied.

Additionally, prohibitive laws concerning persons, their acts or property, and those which have for
their object public order, public policy and good customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions agreed upon in a foreign country.

The public policy sought to be protected in the instant case is the principle imbedded in our
jurisdiction proscribing the splitting up of a single cause of action.

Section 4, Rule 2 of the 1997 Rules of Civil Procedure is pertinent

If two or more suits are instituted on the basis of the same cause of action, the filing of one or a
judgment upon the merits in any one is available as a ground for the dismissal of the others.
Moreover, foreign law should not be applied when its application would work undeniable injustice to
the citizens or residents of the forum. To give justice is the most important function of law; hence, a
law, or judgment or contract that is obviously unjust negates the fundamental principles of Conflict of
Laws. 48

Applying the foregoing, even if the laws of the Netherlands neither enforce a parents obligation to
support his child nor penalize the noncompliance therewith, such obligation is still duly enforceable
in the Philippines because it would be of great injustice to the child to be denied of financial support
when the latter is entitled thereto.

We emphasize, however, that as to petitioner herself, respondent is no longer liable to support his
former wife, in consonance with the ruling in San Luis v. San Luis, to wit:
49

As to the effect of the divorce on the Filipino wife, the Court ruled that she should no longerbe
considered marriedto the alien spouse. Further, she should not be required to perform her marital
duties and obligations. It held:

To maintain, as private respondent does, that, under our laws, petitioner has to be considered still
married to private respondent and still subject to a wife's obligations under Article 109, et. seq. of the
Civil Code cannot be just. Petitioner should not be obliged to live together with, observe respect and
fidelity, and render support to private respondent. The latter should not continue to be one of her
heirs with possible rights to conjugal property. She should not be discriminated against in her own
country if the ends of justice are to be served. (Emphasis added) 50

Based on the foregoing legal precepts, we find that respondent may be made liable under Section
5(e) and (i) of R.A. No. 9262 for unjustly refusing or failing to give support topetitioners son, to wit:

SECTION 5. Acts of Violence Against Women and Their Children.- The crime of violence against
women and their children is committed through any of the following acts:

xxxx
(e) Attempting to compel or compelling the woman or her child to engage in conduct which the
woman or her child has the right to desist from or desist from conduct which the woman or her child
has the right to engage in, or attempting to restrict or restricting the woman's or her child's freedom
of movement or conduct by force or threat of force, physical or other harm or threat of physical or
other harm, or intimidation directed against the woman or child. This shall include, butnot limited to,
the following acts committed with the purpose or effect of controlling or restricting the woman's or her
child's movement or conduct:

xxxx

(2) Depriving or threatening to deprive the woman or her children of financial support legally due her
or her family, or deliberately providing the woman's children insufficient financial support; x x x x

(i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child,
including, but not limited to, repeated verbal and emotional abuse, and denial of financial support or
custody of minor childrenof access to the woman's child/children. 51

Under the aforesaid special law, the deprivation or denial of financial support to the child is
considered anact of violence against women and children.

In addition, considering that respondent is currently living in the Philippines, we find strength in
petitioners claim that the Territoriality Principle in criminal law, in relation to Article 14 of the New
Civil Code, applies to the instant case, which provides that: "[p]enal laws and those of public security
and safety shall be obligatory upon all who live and sojourn in Philippine territory, subject to the
principle of public international law and to treaty stipulations." On this score, it is indisputable that the
alleged continuing acts of respondent in refusing to support his child with petitioner is committed
here in the Philippines as all of the parties herein are residents of the Province of Cebu City. As
such, our courts have territorial jurisdiction over the offense charged against respondent. It is
likewise irrefutable that jurisdiction over the respondent was acquired upon his arrest.

Finally, we do not agree with respondents argument that granting, but not admitting, that there is a
legal basis for charging violation of R.A. No. 9262 in the instant case, the criminal liability has been
extinguished on the ground of prescription of crime under Section 24 of R.A. No. 9262, which
52

provides that:

SECTION 24. Prescriptive Period. Acts falling under Sections 5(a) to 5(f) shall prescribe in twenty
(20) years. Acts falling under Sections 5(g) to 5(I) shall prescribe in ten (10) years.

The act of denying support to a child under Section 5(e)(2) and (i) of R.A. No. 9262 is a continuing
offense, which started in 1995 but is still ongoing at present. Accordingly, the crime charged in the
53

instant case has clearly not prescribed.

Given, however, that the issue on whether respondent has provided support to petitioners child calls
for an examination of the probative value of the evidence presented, and the truth and falsehood of
facts being admitted, we hereby remand the determination of this issue to the RTC-Cebu which has
jurisdiction over the case.

WHEREFORE, the petition is GRANTED. The Orders dated February 19, 2010 and September 1,
2010, respectively, of the Regional Trial Court of the City of Cebu are hereby REVERSED and SET
ASIDE. The case is REMANDED to the same court to conduct further proceedings based on the
merits of the case.

SO ORDERED.

G.R. No. 169533 March 20, 2013

GEORGE BONGALON, Petitioner,


vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

BERSAMIN, J.:

Not every instance of the laying of hands on a child constitutes the crime of child abuse under
Section 10 (a) of Republic Act No. 7610.1 Only when the laying of hands is shown beyond
reasonable doubt to be intended by the accused to debase, degrade or demean the intrinsic worth
and dignity of the child as a human being should it be punished as child abuse. Otherwise, it is
punished under the Revised Penal Code.

The Case

On June 22, 2005,2 the Court of Appeals (CA) affirmed the conviction of the petitioner for the crime of
child abuse under Section 10 (a) of Republic Act No. 7610.

Antecedents

On June 26, 2000, the Prosecutors Office of Legazpi City charged the petitioner in the Regional
Trial Court (RTC) in Legazpi City with child abuse, an act in violation of Section 10(a) of Republic Act
No. 7610, alleging as follows:

That on or about the 11th day of May 2000, in the City of Legazpi Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully
and feloniously commit on the person of JAYSON DELA CRUZ, a twelve year-old,

Grade VI pupil of MABA Institute, Legazpi City, acts of physical abuse and/or maltreatment by
striking said JAYSON DELA CRUZ with his palm hitting the latter at his back and by slapping said
minor hitting his left cheek and uttering derogatory remarks to the latters family to wit: "Mga hayop
kamo, para dayo kamo digdi, Iharap mo dito ama mo" (You all animals, you are all strangers here.
Bring your father here), which acts of the accused are prejudicial to the childs development and
which demean the intrinsic worth and dignity of the said child as a human being.

CONTRARY TO LAW.3
The Prosecution showed that on May 11, 2002, Jayson Dela Cruz (Jayson) and Roldan, his older
brother, both minors, joined the evening procession for the Santo Nio at Oro Site in Legazpi City;
that when the procession passed in front of the petitioners house, the latters daughter Mary Ann
Rose, also a minor, threw stones at Jayson and called him "sissy"; that the petitioner confronted
Jayson and Roldan and called them names like "strangers" and "animals"; that the petitioner struck
Jayson at the back with his hand, and slapped Jayson on the face; 4 that the petitioner then went to
the brothers house and challenged Rolando dela Cruz, their father, to a fight, but Rolando did not
come out of the house to take on the petitioner; that Rolando later brought Jayson to the Legazpi
City Police Station and reported the incident; that Jayson also underwent medical treatment at the
Bicol Regional Training and Teaching Hospital;5 that the doctors who examined Jayson issued two
medical certificates attesting that Jayson suffered the following contusions, to wit: (1) contusion .5 x
2.5 scapular area, left; and (2) +1x1 cm. contusion left zygomatic area and contusion .5 x 2.33 cm.
scapular area, left.6

On his part, the petitioner denied having physically abused or maltreated Jayson. He explained that
he only talked with Jayson and Roldan after Mary Ann Rose and Cherrylyn, his minor daughters, had
told him about Jayson and Roldans throwing stones at them and about Jaysons burning Cherrylyns
hair. He denied shouting invectives at and challenging Rolando to a fight, insisting that he only told
Rolando to restrain his sons from harming his daughters.7

To corroborate the petitioners testimony, Mary Ann Rose testified that her father did not hit or slap
but only confronted Jayson, asking why Jayson had called her daughters "Kimi" and why he had
burned Cherrlyns hair. Mary Ann Rose denied throwing stones at Jayson and calling him a "sissy."
She insisted that it was instead Jayson who had pelted her with stones during the procession. She
described the petitioner as a loving and protective father.8

Ruling of the RTC

After trial, the RTC found and declared the petitioner guilty of child abuse as charged, to wit: 9

WHEREFORE, in view of the foregoing considerations, judgment is hereby rendered finding the
accused GEORGE BONGALON @ "GI" GUILTY beyond reasonable doubt of Violation of Republic
Act No. 7610, and is hereby ordered to undergo imprisonment of six (6) years and one (1) day to
eight (8) years of prision mayor in its minimum period.

SO ORDERED.

Ruling of the CA

On appeal, the petitioner assailed the credibility of the Prosecution witnesses by citing their
inconsistencies. He contended that the RTC overlooked or disregarded material facts and
circumstances in the records that would have led to a favorable judgment for him. He attacked the
lack of credibility of the witnesses presented against him, citing the failure of the complaining
brothers to react to the incident, which was unnatural and contrary to human experience.

The CA affirmed the conviction, but modified the penalty,10 viz:

WHEREFORE, premises considered, the decision dated October 20, 2003 of the Regional Trial
Court, Branch 9 of Legazpi City is hereby AFFIRMED with MODIFICATION in that accused-appellant
George Bongalon is sentenced to suffer the indeterminate penalty of (4) years, two (2) months and
one (1) day of prision correccional, as minimum term, to six (6) years, eight (8) months and 1 day of
prision mayor as the maximum term.

Further, accused-appellant is ordered to pay the victim, Jayson de la Cruz the additional amount
of P5,000 as moral damages.

SO ORDERED.

Issues

The petitioner has come to the Court via a petition for certiorari under Rule 65 of the Rules of Court. 11

The petitioner asserts that he was not guilty of the crime charged; and that even assuming that he
was guilty, his liability should be mitigated because he had merely acted to protect her two minor
daughters.

Ruling of the Court

At the outset, we should observe that the petitioner has adopted the wrong remedy in assailing the
CAs affirmance of his conviction. His proper recourse from the affirmance of his conviction was an
appeal taken in due course. Hence, he should have filed a petition for review on certiorari. Instead,
he wrongly brought a petition for certiorari. We explained why in People v. Court of Appeals: 12

The special civil action for certiorari is intended for the correction of errors of jurisdiction only or
grave abuse of discretion amounting to lack or excess of jurisdiction. Its principal office is only to
keep the inferior court within the parameters of its jurisdiction or to prevent it from committing such a
grave abuse of discretion amounting to lack or excess of jurisdiction. As observed in Land Bank of
the Philippines v. Court of Appeals, et al. "the special civil action for certiorari is a remedy designed
for the correction of errors of jurisdiction and not errors of judgment. The raison detre for the rule is
when a court exercises its jurisdiction, an error committed while so engaged does not deprived it of
the jurisdiction being exercised when the error is committed. If it did, every error committed by a
court would deprive it of its jurisdiction and every erroneous judgment would be a void judgment. In
such a scenario, the administration of justice would not survive. Hence, where the issue or question
involved affects the wisdom or legal soundness of the decisionnot the jurisdiction of the court to
render said decisionthe same is beyond the province of a special civil action for certiorari. The
proper recourse of the aggrieved party from a decision of the Court of Appeals is a petition for review
on certiorari under Rule 45 of the Revised Rules of Court.

It is of no consequence that the petitioner alleges grave abuse of discretion on the part of the CA in
his petition. The allegation of grave abuse of discretion no more warrants the granting of due course
to the petition as one for certiorari if appeal was available as a proper and adequate remedy. At any
rate, a reading of his presentation of the issues in his petition indicates that he thereby imputes to
the CA errors of judgment, not errors of jurisdiction. He mentions instances attendant during the
commission of the crime that he claims were really constitutive of justifying and mitigating
circumstances; and specifies reasons why he believes Republic Act No. 7610 favors his innocence
rather than his guilt for the crime charged.13 The errors he thereby underscores in the petition
concerned only the CAs appreciation and assessment of the evidence on record, which really are
errors of judgment, not of jurisdiction.
Even if we were to treat the petition as one brought under Rule 45 of the Rules of Court, it would still
be defective due to its being filed beyond the period provided by law. Section 2 of Rule 45 requires
the filing of the petition within 15 days from the notice of judgment to be appealed. However, the
petitioner received a copy of the CAs decision on July 15, 2005, 14 but filed the petition only on
September 12, 2005,15 or well beyond the period prescribed by the Rules of Court.

The procedural transgressions of the petitioner notwithstanding, we opt to forego quickly dismissing
the petition, and instead set ourselves upon the task of resolving the issues posed by the petition on
their merits. We cannot fairly and justly ignore his plea about the sentence imposed on him not being
commensurate to the wrong he committed. His plea is worthy of another long and hard look. If, on
the other hand, we were to outrightly dismiss his plea because of the procedural lapses he has
committed, the Court may be seen as an unfeeling tribunal of last resort willing to sacrifice justice in
order to give premium to the rigidity of its rules of procedure. But the Rules of Court has not been
intended to be rigidly enforced at all times. Rather, it has been instituted first and foremost to ensure
justice to every litigant. Indeed, its announced objective has been to secure a "just, speedy and
inexpensive disposition of every action and proceeding."16 This objective will be beyond realization
here unless the Rules of Court be given liberal construction and application as the noble ends of
justice demand. Thereby, we give primacy to substance over form, which, to a temple of justice and
equity like the Court, now becomes the ideal ingredient in the dispensation of justice in the case now
awaiting our consideration.

The petitioners right to liberty is in jeopardy. He may be entirely deprived of such birthright without
due process of law unless we shunt aside the rigidity of the rules of procedure and review his case.
Hence, we treat this recourse as an appeal timely brought to the Court. Consonant with the basic
rule in criminal procedure that an appeal opens the whole case for review, we should deem it our
duty to correct errors in the appealed judgment, whether assigned or not. 17

The law under which the petitioner was charged, tried and found guilty of violating is Section 10 (a),
Article VI of Republic Act No. 7610, which relevantly states:

Section 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and other Conditions Prejudicial to
the Childs Development.

(a) Any person who shall commit any other acts of child abuse, cruelty or exploitation or be
responsible for other conditions prejudicial to the childs development including those covered by
Article 59 of Presidential Decree No. 603, as amended, but not covered by the Revised Penal Code,
as amended, shall suffer the penalty of prision mayor in its minimum period.

xxxx

Child abuse, the crime charged, is defined by Section 3 (b) of Republic Act No. 7610, as follows:

Section 3. Definition of terms.

xxxx

(b) "Child Abuse" refers to the maltreatment, whether habitual or not, of the child which includes any
of the following:
(1) Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional
maltreatment;

(2) Any act by deeds or words which debases, degrades or demeans the intrinsic worth and
dignity of a child as a human being;

(3) Unreasonable deprivation of his basic needs for survival, such as food and shelter; or

(4) Failure to immediately give medical treatment to an injured child resulting in serious
impairment of his growth and development or in his permanent incapacity or death.

xxxx

Although we affirm the factual findings of fact by the RTC and the CA to the effect that the petitioner
struck Jayson at the back with his hand and slapped Jayson on the face, we disagree with their
holding that his acts constituted child abuse within the purview of the above-quoted provisions. The
records did not establish beyond reasonable doubt that his laying of hands on Jayson had been
intended to debase the "intrinsic worth and dignity" of Jayson as a human being, or that he had
thereby intended to humiliate or embarrass Jayson. The records showed the laying of hands on
Jayson to have been done at the spur of the moment and in anger, indicative of his being then
overwhelmed by his fatherly concern for the personal safety of his own minor daughters who had
just suffered harm at the hands of Jayson and Roldan. With the loss of his self-control, he lacked
that specific intent to debase, degrade or demean the intrinsic worth and dignity of a child as a
human being that was so essential in the crime of child abuse.

It is not trite to remind that under the well-recognized doctrine of pro reo every doubt is resolved in
favor of the petitioner as the accused. Thus, the Court should consider all possible circumstances in
his favor.18

What crime, then, did the petitioner commit?

Considering that Jaysons physical injury required five to seven days of medical attention, 19 the
petitioner was liable for slight physical injuries under Article 266 (1) of the Revised Penal Code, to
wit:

Article 266. Slight physical injuries and maltreatment. The crime of slight physical injuries shall be
punished:

1. By arresto menor when the offender has inflicted physical injuries which shall incapacitate the
offended party for labor from one to nine days, or shall require medical attendance during the same
period.

xxxx

The penalty for slight physical injuries is arresto menor, which ranges from one day to 30 days of
imprisonment.20In imposing the correct penalty, however, we have to consider the mitigating
circumstance of passion or obfuscation under Article 13 (6) of the Revised Penal Code, 21 because
the petitioner lost his reason and self-control, thereby diminishing the exercise of his will
power.22 Passion or obfuscation may lawfully arise from causes existing only in the honest belief of
the accused.23 It is relevant to mention, too, that in passion or obfuscation, the offender suffers a
diminution of intelligence and intent. With his having acted under the belief that Jayson and Roldan
had thrown stones at his two minor daughters, and that Jayson had burned Cherrlyns hair, the
petitioner was entitled to the mitigating circumstance of passion. Arresto menor is prescribed in its
minimum period (i.e., one day to 10 days) in the absence of any aggravating circumstance that offset
the mitigating circumstance of passion. Accordingly, with the Indeterminate Sentence Law being
inapplicable due to the penalty imposed not exceeding one year,24 the petitioner shall suffer a straight
penalty of 10 days of arresto menor.

The award of moral damages to Jayson is appropriate. Such damages are granted in criminal cases
resulting in physical injuries.25 The amount of P5,000.00 fixed by the lower courts as moral damages
is consistent with the current jurisprudence.26

WHEREFORE, we SET ASIDE the decision of the Court of Appeals; and ENTER a new judgment:
(a) finding petitioner George Bongalon GUlLTY beyond reasonable doubt of the crime of SLIGHT
PHYSICAL INJURIES under paragraph 1, Article 266, of the Revised Penal Code; (b) sentencing
him to suffer the penalty of 10 days of arresto menor; and (c) ordering him to pay Jayson Dela Cruz
the amount of P5,000.00 as moral damages, plus the costs of suit.

SO ORDERED.

G.R. No. 173988 October 8, 2014

FELINA ROSALDES, Petitioner,


vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

BERSAMIN, J.:

The petitioner, a public schoolteacher, was charged with and found guilty of child abuse, a violation
of Republic Act No. 7610. The victim was her own Grade 1 pupil whom she physically maltreated for
1

having accidentally bumped her knee while she was drowsing off on a bamboo sofa as he entered
the classroom. Her maltreatment left him with physical injuries, as duly certified by a physician.

Whether or not the petitioner thereby committed child abuse is the question that this appeal must
determine, in light of the Court's pronouncement in Bongalon v. People of the Philippines that:
2

Not every instance of the laying of hands on a child constitutes the crime of child abuse under
Section 10 (a) of Republic Act No. 7610. Only when the laying of hands is shown beyond reasonable
doubt to be intended by the accused to debase, degrade or demean the intrinsic worth and dignity of
the child as a human being should it be punished as child abuse. Otherwise, it is punished under the
Revised Penal Code.
Antecedents

The State, through the Office ofthe Solicitor General, summed up the factual antecedents in its
comment, as follows:
3

On February 13, 1996, seven yearold Michael Ryan Gonzales, then a Grade 1 pupil at Pughanan
Elementary School located in the Municipality of Lambunao, Iloilo, was hurriedly entering his
classroom when he accidentally bumped the knee of his teacher, petitioner Felina Rosaldes, who
was then asleep on a bamboo sofa (TSN, March 14, 1997, pp. 5-6). Roused from sleep, petitioner
asked Michael Ryan to apologize to her. When Michael did not obey but instead proceeded to his
seat (TSN, March 14, 1997, p. 6), petitioner went to Michael and pinched him on his thigh. Then, she
held him up by his armpits and pushed him to the floor. As he fell, Michael Ryans body hit a desk. As
a result, he lost consciousness. Petitioner proceeded topick Michael Ryan up by his ears and
repeatedly slammed him down on the floor. Michael Ryan cried (TSN, March 14, 1997, p. 6; TSN,
November 13, 1997, p. 7).

After the incident, petitioner proceeded to teach her class. During lunch break, Michael Ryan,
accompanied by two of his classmates, Louella Loredo and Jonalyn Gonzales, went home crying
and told his mother about the incident (TSN, March 14, 1997, p. 7). His mother and his Aunt
Evangeline Gonzales reported the incident to their Barangay Captain, Gonzalo Larroza (TSN,
February 1, 1999, p. 4) who advised them to have Michael Ryan examined by a doctor. Michael
Ryans aunt and Barangay Councilman Ernesto Ligante brought him to the Dr. Ricardo Y. Ladrido
Hospital where he was examined by Dr. Teresita Castigador. They, likewise, reported the incident to
the Police Station (TSN, July 27, 1997, p. 6; TSN, February 1, 1999, p. 4).

The medical certificate issued by Dr. Teresita Castigador reads, in part:

1. Petechiae and tenderness of both external ears 1x2 cm. and 1x1 cm.;

2. Lumbar pains and tenderness at area of L3-L4;

3. Contusions at left inner thigh 1x1 and 1x1 cm.;

4. Tenderness and painful on walking especially at the area of femoral head.

The petitioner was criminally charged with child abusein the Regional Trial Court in Iloilo City (RTC),
and the case was assigned to Branch 27 of that court. The information alleged as follows: The
Provincial Prosecutor of Iloilo, upon approval and Directive of the Deputy OMBUDSMAN for the
Visayas accuses FELINA ROSALDES of the crime of VIOLATION OF CHILD ABUSE LAW

(Section 10 (a) of R.A. 7610), committed as follows:

That on or about the 13th day of February 1996, in the Municipality of Lambunao, Province of Iloilo,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being a
public school teacher in Grade 1 of Pughanan Elementary School, with a Salary Grade below 26,
under the DECS, did then and there willfully, unlawfully and feloniously maltreat her pupil Michael
Ryan Gonzales, a seven year old child, by pinching him on different parts of his body, and thereafter
slumping him to the ground, thereby causing Michael Ryan Gonzales to lose his consciousness and
has suffered injuries on different parts of his body.
CONTRARY TO LAW. 4

On June 26, 2003, the RTC rendered judgment convicting the petitioner of child abuse, disposing as
5

follows:

WHEREFORE, finding the accused guilty beyond reasonable doubt of Violation of Section 10 (a),
Article VI of R.A. 7610, the Court sentences her to an indeterminate prison term ranging from four
(4) years, two (2) months and one (1) day of prision correccional, as minimum, to six (6) years and
one (1) day of prision mayor, as maximum, and to pay the costs.

No pronouncement as to civil liability, the same not having been proved.

SO ORDERED. 6

On appeal, the CA affirmed the conviction of the petitioner through its assailed decision promulgated
on May 11, 2005, with a modification of the penalty, viz: WHEREFORE, premises considered,
7

judgment is hereby rendered by us DISMISSING the appeal filed in this case and AFFIRMING the
decision rendered on June 26, 2003 by the court a quo in Criminal Case No. 46893 with the
MODIFICATION that the accusedappellant is sentenced to suffer the indeterminate penalty of four
(4) years, two (2) months and one (1) day of prision correccional, as the minimum of it, to ten (10)
years and one (1) day of prision mayor, as the maximum thereof.

IT IS SO ORDERED. 8

In her petition for review on certiorari, the petitioner submits that:


9

The Court of Appeals erred in convicting the petitioner by holding that the acts of the petitioner
constitute child abuse penalized under Section 10 (a) of Republic Act No. 7610[,] and notunder the
Revised Penal Code.

II

The Court of Appeals erred in convicting the petitioner by holding that petitioners constitutional right
to due process and her right to be informed of the nature and cause of the accusation against her
was not violated when the essential elements of the crime charged were not properly recited in the
information.10

Countering, the State, through the OSG, insists that the issues the petitioner is raising are mainly
factual and, therefore, not reviewable under the mode of appeal chosen; that the affirmance of her
conviction by the CA was in accord with the pertinent law and jurisprudence, and supported by the
overwhelming evidence of the trial; and that the information charging her with child abuse was
sufficient in form and substance. 11

Ruling of the Court

The appeal lacks merit.


First of all, the State correctly contends that the petitioner could raise only questions of law in her
present recourse. Under Rule 45 of the Rules of Court, the appeal is limited to questionsof law. The
immediate implication of the limitation is to have the findings of fact by the CA, which affirmed the
findings of fact by the trial court, conclude the Court by virtue of its not being a trier of fact. As such,
the Court cannot analyze or weigh the evidence all over again.

It is true that the limitation of the review to errors of law admits of exceptions. Under Section 4, Rule
3 of the Internal Rules of the Supreme Court, the following situations are the exceptions in which the
Court may review findings of fact by the lower courts, to wit: (a) the conclusion is a finding grounded
entirely on speculation, surmise and conjecture; (b) the inference made is manifestly mistaken; (c)
there is grave abuse of discretion; (d) the judgment is based on a misapprehension of facts; (e) the
findings of fact are conflicting; (f) the collegial appellate courts went beyond the issues of the case,
and their findings are contrary to the admissions of both appellant and appellee; (g) the findings of
fact of the collegial appellate courts are contrary to those of the trial court; (h) said findings of fact
are conclusions without citation of specific evidence on which they are based; (i) the facts set forth in
the petition aswell as in the petitioners main and reply briefs are not disputed by the respondents; (j)
the findings of fact of the collegial appellate courts are premised on the supposed evidence, but are
contradicted by the evidence on record; and (k) all other similar and exceptional cases warranting a
review of the lower courts findings of fact. A further exception is recognized when the CA manifestly
overlooked certain relevant facts not disputed bythe parties, which, if properly considered, would
justify a different conclusion. Yet, none of the exceptions applies herein.
12

Secondly, the petitioner contends that she did not deliberately inflict the physical injuries suffered by
MichaelRyan to maltreat or malign him in a manner that would debase, demean or degrade his
dignity. She characterizes her maltreatment as anact of discipline that she as a school teacher could
reasonably do towards the development of the child. She insists that her act further came under the
doctrine of in loco parentis.

The contention of the petitioner is utterly bereft of merit.

Although the petitioner, as a school teacher, could duly discipline Michael Ryan as her pupil, her
infliction of the physical injuries on him was unnecessary, violent and excessive. The boy even
fainted from the violence suffered at her hands. She could not justifiably claim that she acted only
13

for the sake of disciplining him. Her physical maltreatment of him was precisely prohibited by no less
than the Family Code, which has expressly banned the infliction of corporal punishmentby a school
administrator, teacher or individual engaged in child care exercising special parental authority (i.e., in
loco parentis), viz:

Article 233. The person exercising substitute parental authority shall have the same authority over
the person of the child as the parents.

In no case shall the school administrator, teacher or individual engaged in child care exercising
special parental authority inflict corporal punishment upon the child. (n)

Proof of the severe results of the petitioners physical maltreatment of Michael Ryan was provided by
Dr. Teresita Castigador, the Medico-Legal Officer of the Dr. Ricardo Y. Ladrido Memorial Hospital in
Iloilo who examined the victim at about 1:00 oclock in the afternoon of February 13, 1996, barely
three hours from the timethe boy had sustained his injuries. Her Medical Report stated as follows:
1. Petechiae and tenderness of both external ears 1x2 cm. and 1x1 cm.;

2. Lumbar pains and tenderness at area of L3-L4;

3. Contusions at left inner thigh 1x1 and 1x1 cm.;

4. Tenderness and painful on walking especially at the area of femoral head.

Reflecting her impressions of the physical injuries based on the testimonial explanations of Dr.
Castigador, the trial judge observed in the decision of June 26, 2003:

A petechiae (wound no. 1), according to Dr. Castigador is a discoloration of the skin caused by the
extravasation of blood beneath it. She opined that the petechiae and tenderness of the ears of the
victim could have been caused by pinching. As to the lumbar pain and tenderness at the third and
fourth level of the vertebrae (wound no. 2), the doctor testified that during her examination of the
victim the latter felt pain when she put pressure on the said area. She stated that this could be
caused by pressure or contact with a hard object. Wound No. 3 is located on the victimsleft inner
thigh. According to her this could not have been caused by ordinary pinching with pressure. Wound
No. 4 is located on the upper part of the left thigh. Dr. Castigador testified that she noticed that the
boy was limping as he walked. 14

Section 3 of RepublicAct No. 7610 defines child abusethusly:

xxxx

(b) "Child abuse" refers to the maltreatment, whether habitual or not, of the child which includes any
of the following:

(1) Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional
maltreatment;

(2) Any act by deeds or words which debases, degrades or demeans the intrinsic worth and
dignity of a child as a human being;

(3) Unreasonable deprivation of his basic needs for survival, such as food and shelter; or

(4) Failure to immediately give medical treatment to an injured child resulting in serious
impairment of his growth and development or in his permanent incapacity or death.

xxxx

In the crime charged against the petitioner, therefore, the maltreatment may consist of an act by
deedsor by wordsthat debases, degrades or demeans the intrinsic worth and dignity of a child as a
human being. The act need not be habitual. The CA concluded that the petitioner "went overboard in
disciplining Michael Ryan, a helpless and weak 7-year old boy, when she pinched hard Michael
Ryan on the left thigh and when she held him in the armpits and threw him on the floor[; and as] the
boy fell down, his body hit the desk causing him to lose consciousness [but instead] of feeling a
sense of remorse, the accused-appellant further held the boy up by his ears and pushed him down
on the floor." On her part, the trial judge said that the physical pain experienced by the victim had
15
been aggravated by an emotional trauma that caused him to stop going to school altogether out of
fear of the petitioner, compelling his parents to transfer him to another school where he had to adjust
again. Such established circumstances proved beyond reasonable doubt thatthe petitioner was
16

guilty of child abuse by deeds that degraded and demeaned the intrinsic worth and dignity of Michael
Ryan as a human being.

It was also shown that Michael Ryans physical maltreatment by the petitioner was neither her first or
only maltreatment of a child. Prosecution witness Louella Loredo revealed on cross examination that
she had also experienced the petitioners cruelty. The petitioner was also convicted by the RTC in
17

Iloilo City (Branch 39) in Criminal Case No. 348921 for maltreatment of another childnamed Dariel
Legayada. Such previous incidents manifested that the petitioner had "a propensity for violence," as
18

the trial judge stated in her decision of June 26, 2003.19

Thirdly, the petitioner submits that the information charging her with child abuse was insufficient in
form and substance, in that the essential elements of the crime charged were not properly alleged
therein; and that her constitutional and statutory right to due process of law was consequently
violated.

The petitioners submission deserves scant consideration.

Under Section 6, Rule 110 of the Rules of Court, the 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 proximate date of the commission of
the offense; and the place where the offense was committed.

The information explicitly averred the offense of child abusecharged against the petitioner in the
context of the statutory definition of child abuse found in Section 3 (b) of Republic Act No. 7610,
supra, and thus complied with the requirements of Section 6, Rule 110 of the Rules of Court.
Moreover, the Court should no longer entertain the petitioners challenge against the sufficiency of
the information in form and substance. Her last chance to pose the challenge was prior to the time
she pleaded to the information through a motion to quash on the ground that the information did not
conform substantially to the prescribed form, or did not charge an offense. She did not do so,
resulting in her waiver of the challenge.

Fourthly, the RTC did not grant civil damages as civil liability ex delictobecause no evidence had
been adduced thereon. The CA saw nothing wrong with the omission by the trial court. The
20

explanation tendered by the trial judge for the omission was misplaced, however, because even
without proof of the actual expenses, or testimony on the victims feelings, the lower courts still had
the authority to define and allow civil liability arising from the offense and the means to fix their
extent. The child abuse surely inflicted on Michael Ryan physical and emotional trauma as well as
moral injury. It cannot also be denied that his parents necessarily spent for his treatment. We hold
that both lower courts committed a plain error that demands correction by the Court. Indeed, as the
Court pointed out in Bacolod v. People, it was "imperative that the courts prescribe the proper
21

penalties when convicting the accused, and determine the civil liability to be imposed on the
accused, unless there has been a reservation of the action to recover civil liability or a waiver of its
recovery," explaining the reason for doing so in the following manner:

It is not amiss to stress that both the RTC and the CA disregarded their express mandate under
Section 2, Rule 120 of the Rules of Courtto have the judgment, if it was of conviction, state: "(1) the
legal qualification of the offense constituted by the acts committed by the accused and the
aggravating or mitigating circumstances which attended its commission; (2) the participation ofthe
accused in the offense, whether as principal, accomplice, or accessory after the fact; (3) the penalty
imposed upon the accused; and (4) the civil liability or damages caused by his wrongful act or
omission to be recovered from the accused by the offended party, if there is any, unless the
enforcement of the civil liability by a separate civil action has been reserved or waived." Their
disregard compels us to actas we now do lest the Court be unreasonably seen as tolerant of their
omission. That the Spouses Cogtas did not themselves seek the correction of the omission by an
appeal is no hindrance to this action because the Court, as the final reviewing tribunal, has not only
the authority but also the duty to correct at any time a matter of law and justice.1wphi1

We also pointedly remind all trial and appellate courts to avoid omitting reliefs that the parties are
properly entitled to by law or in equity under the established facts. Their judgments will not be worthy
of the name unless they thereby fully determine the rights and obligations of the litigants. It cannot
be otherwise, for only by a full determination of such rights and obligations would they betrue to the
judicial office of administering justice and equity for all. Courts should then be alert and cautious in
their rendition of judgments of conviction in criminal cases. They should prescribe the legal
penalties, which is what the Constitution and the law require and expect them to do. Their
prescription of the wrong penalties will be invalid and ineffectual for being done without jurisdiction or
in manifest grave abuse of discretion amounting to lack of jurisdiction. They should also determine
and set the civil liability ex delictoof the accused, in order to do justice to the complaining victims
who are always entitled to them. The Rules of Court mandates them to do so unless the
enforcement of the civil liability by separate actions has been reserved or waived. 22

Moral damages should be awarded to assuage the moral and emotional sufferings of the victim, and
in that respect the Court believes and holds that P20,000.00 is reasonable. The victim was likewise
entitled to exemplary damages, considering that Article 2230 of the Civil Code authorizes such
damages if at least one aggravating circumstance attended the commission of the crime. The child
abuse committed by the petitioner was aggravated her being a public school teacher, a factor in
raising the penalty to its maximum period pursuantto Section 31(e) of Republic Act No. 7610. The
amount of P20,000.00 as exemplary damages is imposed on in order to set an example for the
public good and as a deterrent to other public school teachers who violate the ban imposed by
Article 233 of the Family Code, supra, against the infliction of corporal punishment on children under
their substitute parental authority. The lack of proof of the actual expenses for the victims
treatmentshould not hinder the granting of a measure of compensation in the formof temperate
damages, which, according to Article 2224 of the Civil Code, may be recovered when some
pecuniary loss has been suffered butits amount cannot be proved with certainty. There being no
question aboutthe injuries sustained requiring medical treatment, temperate damages ofat
least P20,000.00 are warranted, for it would be inequitable not to recognize the need for the
treatment. Lastly, interest of 6% per annum shall be charged on all the items of civil liability, to be
reckoned from the finality of this decision until full payment.

The penalty for the child abusecommitted by the petitioner is that prescribed in Section 10(a) of
Republic Act No. 7610, viz:

Section 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions Prejudicial to
the Child's Development.
(a) Any person who shall commit any other acts of child abuse, cruelty or exploitation or to be
responsible for other conditions prejudicial to the child's development including those covered by
Atiicle 59 of Presidential Decree No. 603, as amended, but not covered by the Revised Penal Code,
as amended, shall suffer the penalty of prision mayor in its minimum period.

xxxx

The CA revised the penalty fixed by the R TC by imposing the indeterminate penalty of four years,
two months and one day of prision correccional, as minimum, to 10 years and one day of prision
mayor, as the maximum, on the ground that the offense was aggravated by the petitioner being a
public schoolteacher. It cited Section 3 l(e) of Republic Act No. 7610, which commands that the
23

penalty provided in the Act "shall be imposed in its maximum period if the offender is a public officer
or employee." Her being a public schoolteacher was alleged in the information and established by
evidence as well as admitted by her. The revised penalty was erroneous, however, because Section
10 (a) of Republic Act No. 7610 punishes the crime committed by the petitioner with prision mayor in
its minimum period, whose three periods are six years and one day to six years and eight months,
for the minimum period; six years, eight months and one day to seven years and four months, for the
medium period; and seven years, four months and one day to eight years, for the maximum period.
The maximum of the indeterminate sentence should come from the maximum period, therefore, and
the Court fixes it at seven years, four months and one day of prision mayor. The minimum of the
indeterminate sentence should come from prision correccional in the maximum period, the penalty
next lower than prision mayor in its minimum period, whose range is from four years, two months
and one day to six years. Accordingly, the minimum of the indeterminate sentence is four years,
1wphi1

nine months and 11 days, and the maximum is seven years, four months and one day of prision
mayor.

WHEREFORE, the Court AFFIRMS the decision promulgated on May 11, 2005, subject to the
MODIFICATIONS that: (a) the petitioner shall suffer the indeterminate penalty of four (4) years, nine
(9) months and eleven (11) days of prision correccional, as minimum, to seven (7) years, four (4)
months and one (1) day of pr is ion mayor, as the maximum; (b) the petitioner shall pay to Michael
Ryan Gonzales P20,000.00 as moral damages, P20,000.00 as exemplary damages,
and P20,000.00 as temperate damages, plus interest at the rate of 6% per annum on each item of
the civil liability reckoned from the finality of this decision until full payment; and (c) the petitioner
shall pay the costs of suit.

SO ORDERED.

G.R. No. 178323 March 16, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,


vs.
ARMANDO CHINGH y PARCIA, Accused-Appellant.

DECISION
PERALTA, J.:

Armando Chingh y Parcia (Armando) seeks the reversal of the Decision 1 of the Court of Appeals
(CA) in CA-G.R. CR-H.C. No. 01119 convicting him of Statutory Rape and Rape Through Sexual
Assault.

The factual and procedural antecedents are as follows:

On March 19, 2005, an Information for Rape was filed against Armando for inserting his fingers and
afterwards his penis into the private part of his minor victim, VVV,2 the accusatory portion of which
reads:

That on or before March 11, 2004 in the City of Manila, Philippines, [Armando], with lewd design and
by means of force, violence and intimidation did then and there willfully, unlawfully and knowingly
commit sexual abuse and lascivious conduct upon a ten (10) year old minor child, [VVV], by then
and there pulling her in a dark place then mashing her breast and inserting his fingers in her vagina
and afterwards his penis, against her will and consent, thereby causing serious danger to the normal
growth and development of the child [VVV], to her damage and prejudice.

Contrary to law.3

Upon his arraignment, Armando pleaded not guilty to the charge. Consequently, trial on the merits
ensued.

At the trial, the prosecution presented the testimonies of the victim, VVV; the victims father; PO3
Ma. Teresa Solidarios; and Dr. Irene Baluyot. The defense, on the other hand, presented the lone
testimony Armando as evidence.

Evidence for the Prosecution

Born on 16 September 1993, VVV was only 10 years old at the time of the incident. On 11 March
2004 at around 8:00 p.m., along with five other playmates, VVV proceeded to a store to buy food.
While she was beckoning the storekeeper, who was not then at her station, Armando approached
and pulled her hand and threatened not to shout for help or talk. Armando brought her to a vacant lot
at Tindalo Street, about 400 meters from the store. While in a standing position beside an
unoccupied passenger jeepney, Armando mashed her breast and inserted his right hand index finger
into her private part. Despite VVVs pleas for him to stop, Armando unzipped his pants, lifted VVV
and rammed his phallus inside her vagina, causing her to feel excruciating pain.

Threatened with death if she would tell anyone what had happened, VVV kept mum about her
traumatic experience when she arrived home. Noticing her odd and uneasy demeanor as well as her
blood-stained underwear, however, her father pressed her for an explanation. VVV confessed to her
father about her unfortunate experience. Immediately, they reported the matter to the police
authorities. After his arrest, Armando was positively identified by VVV in a police line-up.

The genital examination of VVV conducted by Dr. Irene Baluyot (Dr. Baluyot) of the Philippine
General Hospitals Child Protection Unit, in the morning of 12 March 2004, showed a "fresh
laceration with bleeding at 6 oclock position" in the childs hymen and "minimal bleeding from [said]
hymen laceration." Her impression was that there was a "clear evidence" of "penetrating trauma"
which happened within 24 hours prior to the examination. The photograph of the lacerated genitalia
of VVV strongly illustrated and buttressed Dr. Baluyots medical report.4

Evidence for the Defense

Armando denied that he raped VVV. Under his version, in (sic) the night of 11 March 2004, he and
his granddaughter were on their way to his cousins house at Payumo St., Tondo, Manila. As it was
already late, he told his granddaughter to just go home ahead of him while he decided to go to
Blumentritt market to buy food. While passing by a small alley on his way thereto, he saw VVV along
with some companions, peeling "dalanghita." VVV approached him and asked if she could go with
him to the market because she will buy "dalanghita" or sunkist. He refused her request and told VVV
instead to go home. He then proceeded towards Blumentritt, but before he could reach the market,
he experienced rheumatic pains that prompted him to return home. Upon arriving home, at about
8:30 oclock in the evening, he watched television with his wife and children. Shortly thereafter, three
(3) barangay officials arrived, arrested him, and brought him to a police precinct where he was
informed of VVVs accusation against him.5

On April 29, 2005, the RTC, after finding the evidence of the prosecution overwhelming against the
accuseds defense of denial and alibi, rendered a Decision6 convicting Armando of Statutory Rape.
The dispositive portion of which reads:

WHEREFORE, premises considered, the Court finds accused ARMANDO CHINGH GUILTY beyond
reasonable doubt as principal of the crime of Statutory Rape defined and penalized under Article
266-A, paragraph 1 (d) of the Revised Penal Code as amended by RA 8353 and is hereby
sentenced to suffer the penalty of Reclusion Perpetua and to indemnify private complainant [VVV]
the amount of fifty thousand pesos (P50,000) as moral damages and to pay the costs.

It appearing that accused is detained, the period of his detention shall be credited in the service of
his sentence.

SO ORDERED.

Aggrieved, Armando appealed the Decision before the CA, which was docketed as CA-G.R. CR-
H.C. No. 01119.

On December 29, 2006, the CA rendered a Decision7 finding Armando not only guilty of Statutory
Rape, but also of Rape Through Sexual Assault. The decretal portion of said Decision reads:

WHEREFORE, the assailed decision of the trial court is AFFIRMED with the following
MODIFICATIONS: accused-appellant is hereby found GUILTY of two counts of rape and is,
accordingly, sentenced to suffer, for the crime of statutory rape, the penalty of reclusion perpetua
and, for the offense of rape through sexual assault, the indeterminate penalty of 3 years, 3 months
and 1 day of prision correccional, as minimum, to 8 years and 11 months and 1 day of prision mayor,
as maximum. He is likewise ordered to pay the victim, a total of P80,000.00 as civil
indemnity, P80,000.00 as moral damages; and P40,000.00 as exemplary damages, or a grand total
of P200,000.00 for the two counts of rape.

Costs against accused-appellant.


SO ORDERED.8

In fine, the CA affirmed the decision of the RTC, and considering that the appeal opened the entire
case for judicial review, the CA also found Armando guilty of the crime of Rape Through Sexual
Assault. The CA opined that since the Information charged Armando with two counts of rape: (1) by
inserting his finger in the victims vagina, which is classified as Rape Through Sexual Assault under
paragraph 2, Article 266-A of the Revised Penal Code, as amended; and (2) for inserting his penis in
the private part of his victim, which is Statutory Rape, and considering that Armando failed to object
thereto through a motion to quash before entering his plea, Armando could be convicted of as many
offenses as are charged and proved.

The CA ratiocinated that coupled with the credible, direct, and candid testimony of the victim, the
elements of Statutory Rape and Rape Through Sexual Assault were indubitably established by the
prosecution.

Armando now comes before this Court for relief.

In a Resolution9 dated September 26, 2007, the Court required the parties to file their respective
supplemental briefs. In their respective Manifestations,10 the parties waived the filing of their
supplemental briefs, and instead adopted their respective briefs filed before the CA.

Hence, Armando raises the following errors:

The trial court gravely erred in finding the accused guilty of the crime of rape under article
266-a, paragraph 1 (d) of the revised penal code in spite the unnatural and unrealistic
testimony of the private complainant.

II

The trial court erred in finding the accused guilty of the offense charged beyond reasonable doubt.

Simply stated, Armando is assailing the factual basis of his conviction, which in effect, mainly
questions the credibility of the testimony of the witnesses for the prosecution, particularly his victim,
VVV.

Armando maintains that the prosecution failed to present sufficient evidence that will overcome the
presumption of innocence. Likewise, Armando insists that the RTC gravely erred in convicting him
based on the unrealistic and unnatural testimony of the victim. Armando claims that VVVs testimony
was so inconsistent with common experience that it deserves careful and critical evaluation. First, it
was so unnatural for VVV to remain quiet and not ask for help when the accused allegedly pulled her
in the presence of several companions and bystanders; second, VVV did not resist or cry for help
while they were on their way to the place where she was allegedly abused, which was 300 to 400
meters away from where he allegedly pulled her; third, VVV could have run away while Armando
was allegedly molesting her, but she did not; fourth, Armando could not have inserted his penis in
the victims organ while both of them were standing, unless the victim did not offer any resistance.
Generally, the Court will not disturb the findings of the trial court on the credibility of witnesses, as it
was in the better position to observe their candor and behavior on the witness stand. Evaluation of
the credibility of witnesses and their testimonies is a matter best undertaken by the trial court; it had
the unique opportunity to observe the witnesses and their demeanor, conduct, and attitude,
especially under cross-examination. Its assessment is entitled to respect unless certain facts of
substance and value were overlooked which, if considered, might affect the result of the case. 11

From the testimony of the victim, VVV, she positively identified Armando as the one who ravaged her
on that fateful night of March 11, 2004. VVV clearly narrated her harrowing experience in the hands
of the accused. Notwithstanding her innocence and despite the thorough cross-examination by
Armandos counsel, VVV never faltered and gave a very candid and truthful testimony of the
traumatic events. VVVs testimony was corroborated and bolstered by the findings of Dr. Irene
Baluyot that the victims genital area showed a fresh laceration with bleeding at 6 oclock position in
her hymen.12 Dr. Baluyot concluded that an acute injury occurred within 24 hours prior to the
examination and that the occurrence of rape within that period was very possible. 13 Also, the age of
VVV at the time the incident occurred, which was 10 years old, was duly established by her birth
certificate,14 her testimony,15 and that of her fathers.16

Time and again, this Court has held that when the offended parties are young and immature girls, as
in this case, courts are inclined to lend credence to their version of what transpired, considering not
only their relative vulnerability, but also the shame and embarrassment to which they would be
exposed if the matter about which they testified were not true. 17 A young girl would not usually
concoct a tale of defloration; publicly admit having been ravished and her honor tainted; allow the
examination of her private parts; and undergo all the trouble and inconvenience, not to mention the
trauma and scandal of a public trial, had she not in fact been raped and been truly moved to protect
and preserve her honor, and motivated by the desire to obtain justice for the wicked acts committed
against her.18 Moreover, the Court has repeatedly held that the lone testimony of the victim in a rape
case, if credible, is enough to sustain a conviction.19

On the other hand, Armando admitted that he saw VVV on the date of the incident, but denied the
accusations against him and merely relied on his defense that he was watching TV with his family
when barangay officials arrested him.

Armandos defenses were also unavailing. His contention that it was unnatural and unrealistic for
VVV to remain quiet when he pulled her from her companions and why she did not cry for help or
run away when he was allegedly ravaging her deserves scant consideration. Clearly, the reason why
VVV did not shout for help was because Armando told her not to shout or talk. 20 Likewise, the reason
why VVV did not run when Armando was molesting her was because his finger was still inside her
private part.21 Moreover, Armandos argument that he could not have inserted his penis in the victims
organ while both of them were standing is preposterous. It is settled that sexual intercourse in a
standing position, while perhaps uncomfortable, is not improbable.22

Armando tendered nothing but his bare denial and contention that he was elsewhere when the crime
was committed. Aside from this, he presented no more evidence to substantiate his claims.
Jurisprudence dictates that denial and alibi are the common defenses in rape cases. Sexual abuse
is denied on the allegation that the accused was somewhere else and could not have physically
committed the crime. This Court has always held that these two defenses are inherently weak and
must be supported by clear and convincing evidence in order to be believed. As negative defenses,
they cannot prevail over the positive testimony of the complainant. 23Consequently, Armandos bare
denial and alibi must fail against the testimony of VVV and her positive identification that he was the
perpetrator of the horrid deed. Unmistakably, it has been proved beyond reasonable doubt that
Armando had carnal knowledge of VVV. 1awphil

Anent Armandos conviction for the crime of Rape Through Sexual Assault.

The CA correctly found Armando guilty of the crime of Rape Through Sexual Assault under
paragraph 2, Article 266-A, of the Revised Penal Code, as amended by Republic Act No. (R.A.)
8353, or The Anti-Rape Law of 1997.24 From the Information, it is clear that Armando was being
charged with two offenses, Rape under paragraph 1 (d), Article 266-A of the Revised Penal Code,
and rape as an act of sexual assault under paragraph 2, Article 266-A. Armando was charged with
having carnal knowledge of VVV, who was under twelve years of age at the time, under paragraph 1
(d) of Article 266-A, and he was also charged with committing an act of sexual assault by inserting
his finger into the genital of VVV under the second paragraph of Article 266-A. Indeed, two instances
of rape were proven at the trial. First, it was established that Armando inserted his penis into the
private part of his victim, VVV. Second, through the testimony of VVV, it was proven that Armando
also inserted his finger in VVVs private part.

The Information has sufficiently informed accused-appellant that he is being charged with two counts
of rape. Although two offenses were charged, which is a violation of Section 13, Rule 110 of the
Revised Rules of Criminal Procedure, which states that "[a] complaint or information must charge
only one offense, except when the law prescribes a single punishment for various offenses."
Nonetheless, Section 3, Rule 120 of the Revised Rules of Criminal Procedure also states that
"[w]hen two or more offenses are charged in a single complaint or information but the accused fails
to object to it before trial, the court may convict the appellant of as many as are charged and proved,
and impose on him the penalty for each offense, setting out separately the findings of fact and law in
each offense." Consequently, since Armando failed to file a motion to quash the Information, he can
be convicted with two counts of rape.

As to the proper penalty, We affirm the CAs imposition of Reclusion Perpetua for rape under
paragraph 1 (d), Article 266-A. However, We modify the penalty for Rape Through Sexual Assault.

It is undisputed that at the time of the commission of the sexual abuse, VVV was ten (10) years old.
This calls for the application of R.A. No. 7610, or "The Special Protection of Children Against Child
Abuse, Exploitation and Discrimination Act," which defines sexual abuse of children and prescribes
the penalty therefor in Section 5 (b), Article III, to wit:

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:

xxxx

(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.25

Paragraph (b) punishes sexual intercourse or lascivious conduct not only with a child exploited in
prostitution, but also with a child subjected to other sexual abuses. It covers not only a situation
where a child is abused for profit, but also where one through coercion, intimidation or influence
engages in sexual intercourse or lascivious conduct with a child. 26

Corollarilly, Section 2 (h) of the rules and regulations27 of R.A. No. 7610 defines "Lascivious conduct"
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.28

In this case, the offended party was ten years old at the time of the commission of the offense.
Pursuant to the above-quoted provision of law, Armando was aptly prosecuted under paragraph 2,
Article 266-A of the Revised Penal Code, as amended by R.A. No. 8353, 29 for Rape Through Sexual
Assault. However, instead of applying the penalty prescribed therein, which is prision mayor,
considering that VVV was below 12 years of age, and considering further that Armandos act of
inserting his finger in VVVs private part undeniably amounted to lascivious conduct, the appropriate
imposable penalty should be that provided in Section 5 (b), Article III of R.A. No. 7610, which is
reclusion temporal in its medium period.

The Court is not unmindful to the fact that the accused who commits acts of lasciviousness under
Article 366, in relation to Section 5 (b), Article III of R.A. No. 7610, suffers the more severe penalty of
reclusion temporal in its medium period than the one who commits Rape Through Sexual Assault,
which is merely punishable by prision mayor. This is undeniably unfair to the child victim. To be sure,
it was not the intention of the framers of R.A. No. 8353 to have disallowed the applicability of R.A.
No. 7610 to sexual abuses committed to children. Despite the passage of R.A. No. 8353, R.A. No.
7610 is still good law, which must be applied when the victims are children or those "persons below
eighteen (18) years of age or those over but are unable to fully take care of themselves or protect
themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or
mental disability or condition."30

Applying the Indeterminate Sentence Law, the maximum term of the indeterminate penalty shall be
that which could be properly imposed under the law, which is fifteen (15) years, six (6) months and
twenty (20) days of reclusion temporal. On the other hand, the minimum term shall be within the
range of the penalty next lower in degree, which is reclusion temporal in its minimum period, or
twelve (12) years and one (1) day to fourteen (14) years and eight (8) months.

Hence, Armando should be meted the indeterminate sentence of twelve (12) years, ten (10) months
and twenty-one (21) days of reclusion temporal, as minimum, to fifteen (15) years, six (6) months
and twenty (20) days of reclusion temporal, as maximum.
As to Armandos civil liabilities, the CA correctly awarded the following damages: civil indemnity
of P50,000.00 and another P50,000.00 as moral damages for Rape under paragraph 1(d), Article
266-A; and civil indemnity of P30,000.00 and moral damages also of P30,000.00 for Rape under
paragraph 2, Article 266-A. In line, however, with prevailing jurisprudence, we increase the award of
exemplary damages from P25,000.00 and P15,000.00, for Rape under paragraph 1 (d), Article 266-
A and Rape under paragraph 2, Article 266-A, respectively, to P30,000.00 for each count of rape.31

WHEREFORE, premises considered, the Court of Appeals Decision dated December 29, 2006 in
CA-G.R. CR-H.C. No. 01119 is AFFIRMED with MODIFICATION. For Rape under paragraph 1 (d),
Article 266-A, Armando Chingh y Parcia is sentenced to suffer the penalty of Reclusion Perpetua;
and for Rape Through Sexual Assault under paragraph 2, Article 266-A, he is sentenced to suffer the
indeterminate penalty of twelve (12) years, ten (10) months and twenty-one (21) days of reclusion
temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion
temporal, as maximum. He is likewise ordered to pay VVV the total of P80,000.00 as civil
indemnity, P80,000.00 as moral damages, and P60,000.00 as exemplary damages.

SO ORDERED.

G.R. Nos. 209655-60 January 14, 2015

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,


vs.
PALMY TIBAYAN and RICO Z. PUERTO, Accused-Appellants.

DECISION

PERLAS-BERNABE, J.:

Assailed in this ordinary appeal filed by accused-appellants Palmy Tibayan (Tibayan) and Rico Z.
1

Puerto (Puerto) (accused-appellants) is the Decision dated June 28, 2013 of the Court of Appeals
2

(CA) in CA-G.R. CR Nos. 33063, 33562, 33660, 33669, 33939, and 34398 which modified the
Decisions dated December 4, 2009, June 24, 2010, August 2, 2010, August 5, 2010, January 21,
3 4 5 6

2011, and August 18, 2011 of the Regional Trial Court of Las Pias City, Branch 198 (RTC) and
7 8

convicted accused appellants of the crime of Syndicated Estafa, defined and penalized under Item 2
(a), Paragraph 4, Article 315 of the Revised Penal Code (RPC) in relation to Presidential Decree No.
(PD) 1689. 9

The Facts

Tibayan Group Investment Company,Inc. (TGICI) is an open-end investment company registered


with the Securities and Exchange Commission (SEC) on September 21, 2001. Sometime in 2002,
10

the SEC conducted an investigation on TGICI and its subsidiaries. In the course thereof, it
discovered that TGICI was selling securities to the public without a registration statement in violation
of Republic Act No. 8799, otherwise known as "The Securities Regulation Code," and that TGICI
submitted a fraudulent Treasurers Affidavit before the SEC. Resultantly, on October 21, 2003, the
SEC revoked TGICIs corporate registration for being fraudulently procured. The foregoing led to 11

the filing of multiple criminal cases for Syndicated Estafa against the incorporators and directors of
12

TGICI, namely, Jesus Tibayan, Ezekiel D. Martinez, Liborio E. Elacio, Jimmy C. Catigan, Nelda B.
13

Baran, and herein accused-appellants. Consequently, warrants of arrest were issued against all of
14

them; however, only accusedappellants were arrested, while the others remained at large. 15

According to the prosecution, private complainants Hector H. Alvarez, Milagros Alvarez, Clarita P.
Gacayan, Irma T. Ador, Emelyn Gomez, Yolanda Zimmer, Nonito Garlan, Judy C. Rillon, Leonida D.
Jarina, Reynaldo A. Dacon, Cristina DelaPea, and Rodney E. Villareal (private complainants) were
16

enticed to invest in TGICI due to the offer of high interest rates, as well as the assurance that they
will recover their investments. After giving their money to TGICI, private complainants received a
Certificate of Share and post-dated checks, representing the amount of the principal investment and
the monthly interest earnings, respectively. Upon encashment, the checks were dishonored, as the
17

account was already closed, prompting private complainants to bring the bounced checks to the
TGICI office to demand payment. At the office, the TGICI employees took the said checks, gave
private complainants acknowledgement receipts, and reassured that their investments, as well as
the interests, would be paid. However, the TGICI office closed down without private complainants
having been paid and, thus, they were constrained to file criminal complaints against the
incorporators and directors of TGICI. 18

In their defense, accused-appellants denied having conspired with the other TGICI incorporators to
defraud private complainants. Particularly, Puerto claimed that his signature in the Articles of
Incorporation of TGICI was forged and that since January 2002, he was no longer a director of
TGICI. For her part, Tibayan also claimed that her signature in the TGICIs Articles of Incorporation
was a forgery,as she was neither an incorporator nor a director of TGICI. 19

The RTC Rulings

On various dates, the RTC issued six (6) separate decisions convicting Tibayan of 13 counts and
Puerto of 11 counts of Estafa under Item 2 (a), Paragraph 4, Article 315 of the RPC in relation to PD
1689, to wit: (a) in a Joint Decision dated December 4, 2009, the RTC found accused-appellants
20

guilty beyond reasonable doubt of three (3) counts of Estafa, sentencing them to suffer the penalty
of imprisonment for a period of 20 years of reclusion temporalfor each count and ordering them to
pay the amounts of P1,500,000.00 to Hector H. Alvarez, and 119,405.23 and P800,000.00 to
Milagros Alvarez; (b) in a Joint Decision dated June 24, 2010, the RTC acquitted Puerto of all the
21 22

charges, but found Tibayan guilty beyond reasonable doubt of two (2) counts of Estafa, sentencing
her to suffer the penalty of imprisonment for a period of 20 years of reclusion temporal for each
count, and ordering her to pay the amounts of P1,300,000.00 and US$12,000.00 to Clarita P.
Gacayan and P500,000.00 to Irma T. Ador; (c) in a Joint Decision dated August 2, 2010, the
23 24

accused-appellants were found guilty beyond reasonable doubt of two (2) counts of Estafa, and
were sentenced to suffer the penalty of imprisonment for a period of 20 years of reclusion temporal
for each count, and ordered to pay the amounts of P1,000,000.00 to Yolanda Zimmer
and P556,376.00 to Nonito Garlan; (d) in a Joint Decision dated August 5, 2010, the RTC found
25 26

the accused appellants guilty beyond reasonable doubt of one (1) count of Estafa, sentencing them
to suffer the penalty of imprisonment for a period of 20 years of reclusion temporaland ordering them
to pay Emelyn Gomez the amount of P250,000.00; (e) in a Decision dated January 21, 2011,
27 28

accused-appellants were found guilty beyond reasonable doubt of one (1) count of Estafa each, and
were sentenced to suffer the penalty of imprisonment for a period of 20 years of reclusion temporal
and ordered to pay Judy C. Rillon the amount of P118,000.00; and (f) in a Joint Decision dated
29 30
August 18, 2011, accused-appellants were each convicted of four (4) counts of Estafa, and meted
different penalties per count, as follows: (i) for the first count, they were sentenced to suffer the
penalty of imprisonment for a period of four (4) years and two (2) months of prision correcional
medium, as minimum, to fifteen (15) years of reclusion temporal medium, as maximum, and to pay
Reynaldo A. Dacon the amount of P100,000.00; (ii) for the second count, they were sentenced to
suffer the penalty of imprisonment for a period of ten (10) years of prision mayor medium, as
minimum, to twenty (20) years of reclusion temporal medium, as maximum, and to pay Leonida D.
Jarina the amount of P200,000.00; (iii) for the third count, they were sentenced to suffer the penalty
of imprisonment for a period of ten (10) years of prision mayormedium, as minimum, to twenty (20)
years of reclusion temporal medium, as maximum, and to pay Cristina Dela Pea the amount
of P250,000.00; and (iv) for the last count, they were sentenced to suffer the penalty of
imprisonment for a period of four (4) years and two (2) months of prision correcional medium, as
minimum, to fifteen (15) years of reclusion temporalmedium, as maximum, and to pay Rodney E.
Villareal the amount of P100,000.00. 31

In the aforesaid decisions, the RTC did not lend credence to accused appellants denials in light of
the positive testimonies of the private complainants that they invested their money in TGICI because
of the assurances from accused-appellants and the other directors/incorporators of TGICI that their
investments would yield very profitable returns. In this relation, the RTC found that accused-
appellants conspired with the other directors/incorporators of TGICI in misrepresenting the company
as a legitimate corporation duly registered to operate as a mutual fund to the detriment of the private
complainants. However, the RTC convicted accused-appellants of simple Estafa only, as the
32

prosecution failed to allege in the informations that accused-appellants and the other directors/
incorporators formed a syndicate with the intention of defrauding the public, or it failed to adduce
documentary evidence substantiating its claims that the accused-appellants committed Syndicated
Estafa.33

Aggrieved, accused-appellants separately appealed the foregoing RTC Decisions to the CA,
docketed as CA-G.R. CR Nos. 33063, 33562, 33660, 33669, 33939, and 34398. Thereafter, the CA
issued a Resolution dated February 19, 2013 ordering the consolidation of accused-appellants
34

appeals.

The CA Ruling

In a Decision dated June 28, 2013, the CA modified accused appellants conviction to that of
35

Syndicated Estafa, and accordingly, increased their respective penalties to life imprisonment for
each count. The CA also increased the amount of actual damages awarded to private complainant
36

Clarita P. Gacayan from P1,300,000.00 to P1,530,625.90, apart from the award of US$12,000.00. 37

It held that TGICI and its subsidiaries were engaged in a Ponzi scheme which relied on subsequent
investors to pay its earlier investors and is what PD 1689 precisely aims to punish. Inevitably,
TGICI could no longer hoodwink new investors that led to its collapse. Thus, the CA concluded that
38

as incorporators/directors of TGICI, accused-appellants and their cohorts conspired in making TGICI


a vehicle for the perpetuation of fraud against the unsuspecting public. As such, they cannot hide
behind the corporate veil and must be personally and criminally liable for their acts. The CA then
39

concluded that since the TGICI incorporators/directors comprised more than five (5) persons,
accused-appellants criminal liability should be upgraded to that of Syndicated Estafa, and their
respective penalties increased accordingly. Undaunted, accused-appellants filed the instant appeal.
40
The Issue Before the Court

The primordial issue for the Courts resolution is whether or not accused-appellants are guilty
beyond reasonable doubt of the crime of Syndicated Estafa defined and penalized under Item 2 (a),
Paragraph 4,

Article 315 of the RPC in relation to PD 1689.

The Courts Ruling

The Court sustains the convictions of accused-appellants.

Item 2 (a), Paragraph 4, Article 315 of the RPC provides:

Art. 315. Swindling (estafa). Any person who shall defraud another by any means mentioned
hereinbelow shall be punished by:

xxxx

2. By means of any of the following false pretenses or fraudulent acts executed prior to or

simultaneously with the commission of the fraud:

(a) By using fictitious name, or falsely pretending to possess power, influence, qualifications,
property, credit, agency, business, or imaginary transactions; or by means of other similar deceits.

xxxx

The elements of Estafa by means of deceit under this provision are the following: (a) that there must
be a false pretense or fraudulent representation as to his power, influence, qualifications, property,
credit, agency, business or imaginary transactions; (b) that such false pretense or fraudulent
representation was made or executed prior to or simultaneously with the commission of the fraud; (c)
that the offended party relied on the false pretense, fraudulent act, or fraudulent means and was
induced to part with his money or property; and (d) that, as a result thereof, the offended party
suffered damage. 41

In relation thereto, Section 1 of PD 1689 defines Syndicated Estafa as follows:

Section 1. Any person or persons who shall commit estafa or other forms of swindling as defined in
Articles 315 and 316 of the Revised Penal Code, as amended, shall be punished by life
imprisonment to death if the swindling (estafa) is committed by a syndicate consisting of five or more
persons formed with the intention of carrying out the unlawful or illegal act, transaction, enterprise or
scheme, and the defraudation results in the misappropriation of moneys contributed by stockholders,
or members of rural banks, cooperatives, "samahang nayon(s)," or farmers associations, or funds
solicited by corporations/associations from the general public.

Thus, the elements of Syndicated Estafa are: (a) Estafa or other forms of swindling, as defined in
Articles 315 and 316 of the RPC, is committed; (b) the Estafa or swindling is committed by a
syndicate of five (5) or more persons; and (c) defraudation results in the misappropriation of moneys
contributed by stockholders, or members of rural banks, cooperative, "samahang nayon(s)," or
farmers associations, or of funds solicited by corporations/associations from the general public. 42

In this case, a judicious review of the records reveals TGICIs modus operandiof inducing the public
to invest in it on the undertaking that their investment would be returned with a very high monthly
interest rate ranging from three to five and a half percent (3%-5.5%). Under such lucrative promise,
43

the investing public are enticed to infuse funds into TGICI. However, as the directors/incorporators of
TGICI knew from the start that TGICI is operating withoutany paid-up capital and has no clear trade
by which it can pay the assured profits to its investors, they cannot comply with their guarantee and
44

had to simply abscond with their investors money. Thus, the CA correctly held that accused-
appellants, along with the other accused who are still at large, used TGICI to engage ina Ponzi
scheme, resulting in the defraudation of the TGICI investors.

To be sure, a Ponzi scheme is a typeof investment fraud that involves the payment of purported
returns to existing investors from funds contributed by new investors. Its organizers often solicit new
investors by promising to invest funds in opportunities claimed to generate high returns with little or
no risk. In many Ponzi schemes, the perpetrators focus on attracting new money to make promised
payments to earlier-stage investors to create the false appearance that investors are profiting from a
legitimate business. It is not an investment strategy but a gullibility scheme, which works only as
45

long as there is an ever increasing number of new investors joining the scheme. It is difficult to
46

sustain the scheme over a long period of time because the operator needs an ever larger pool of
later investors to continue paying the promised profits toearly investors. The idea behind this type of
swindle is that the "con-man" collects his money from his second or third round of investors and then
absconds before anyone else shows up to collect. Necessarily, Ponzi schemes only last weeks, or
months at the most. 47

In this light, it is clear that all the elements of Syndicated Esta/a, committed through a Ponzi scheme,
are present in this case, considering that: (a) the incorporators/directors of TGICI comprising more
than five (5) people, including herein accused-appellants, made false pretenses and representations
to the investing public - in this case, the private complainants - regarding a supposed lucrative
investment opportunity with TGICI in order to solicit money from them; (b) the said false pretenses
and representations were made prior to or simultaneous with the commission of fraud; (c) relying on
the same, private complainants invested their hard earned money into TGICI; and (d) the
incorporators/directors of TGICI ended up running away with the private complainants' investments,
obviously to the latter's prejudice.

Corollary thereto, the CA correctly upgraded accused-appellants' conviction from simple Estafa to
Syndicated Estafa. In a criminal case, an appeal throws the whole case wide open for review.
1wphi1

Issues whether raised or not by the parties may be resolved by the appellate court. Hence, accused
48

appellants' appeal conferred upon the appellate court full jurisdiction and rendered it competent to
examine the records, revise the judgment appealed from, increase the penalty, and cite the proper
provision of the penal law. 49

WHEREFORE, the appeal is DENIED. The Decision dated June 28, 2013 of the Court of Appeals in
CA-G.R. CR Nos. 33063, 33562, 33660, 33669, 33939, and 34398 is hereby AFFIRMED.
Accordingly, accused appellants Palmy Tibayan and Rico Z. Puerto are found GUILTY beyond
reasonable doubt of 13 and 11 counts, respectively, of Syndicated Esta/a and are sentenced to
suffer the penalty of life imprisonment for each count. Accused-appellants are further ordered to pay
actual damages to each of the private complainants in the following amounts: (a) P1,500,000.00 to
Hector H. Alvarez; (b) P119,405.23 and P800,000.00 to Milagros Alvarez; (c) P1,530,625.90 and
US$12,000.00 to Clarita P. Gacayan; (d) P500,000.00 to Irma T. Ador; (e) P1,000,000.00 to Yolanda
Zimmer; (f) P556,376.00 to Nonito Garlan; (g) P250,000.00 to Emelyn Gomez; (h) P118,000.00 to
Judy C. Rillon; (i) P100,000.00 to Reynaldo A. Dacon; (j) P200,000.00 to Leonida D. Jarina;
(k) P250,000.00 to Cristina Dela Pefia; and (l) P100,000.00 to Rodney E. Villareal.

SO ORDERED.

MA. GRACIA HAO and DANNY HAO, Petitioners,


vs.
PEOPLE OF THE PHILIPPINES, Respondents.

DECISION

BRION, J.:

Before this Court is the petition for review on certiorari under Rule 45 of the Rules of Court, filed by
1

Ma. Gracia Hao and Danny Hao (petitioners). They seek the reversal of the Court of Appeals' (CA)
decision dated February 28, 2006 and resolution dated June 13, 2008 in CA-G.R. SP No. 86289.
2 3

These CA rulings affirmed the February 26, 2004 and July 26, 2004 orders of the Regional Trial
4 5

Court (RTC) of Manila, which respectively denied the petitioners' motion to defer arraignment and
motion to lift warrant of arrest.
6

Factual Antecedents

On July 11, 2003 private complainant Manuel Dy y Awiten (Dy) filed a criminal complaint against the
petitioners and Victor Ngo (Ngo) for syndicated estafa penalized under Article 315(2)(a) of the
Revised Penal Code (RPC), as amended, in relation with Presidential Decree (PD) No. 1689. 7

Dy alleged that he was a long-time client of Asiatrust Bank, Binondo Branch where Ngo was the
manager. Because of their good business relationship, Dy took Ngos advice to deposit his money in
an investment house that will give a higher rate of return. Ngo then introduced him to Ma. Gracia
Hao (Gracia), also known as Mina Tan Hao, who presented herself as an officer of various reputable
companies and an incorporator of State Resources Development Corporation (State Resources), the
recommended company that can give Dy his higher investment return. 8

Relying on Ngo and Gracias assurances, Dy initially invested in State Resources the approximate
amount of Ten Million Pesos (P10,000,000.00). This initial investment earned the promised interests,
leading Dy, at the urging of Gracia, toincrease his investment to almost One Hundred Million Pesos
(P100,000,000.00). Dy increased his investments through several checks he issued in the name of
State Resources. In return, Gracia also issued several checks to Dy representing his earnings for
9

his investment. Gracia issued checks in the total amount of One Hundred Fourteen Million, Two
Hundred Eighty Six Thousand, Eighty Six Pesos and Fourteen Centavos (P114,286,086.14). All
these checks were subsequently dishonored when Dy deposited them.
10
Dy sought the assistance of Ngo for the recovery of the amount of the dishonored checks. Ngo
promised assistance, but after a few months, Dy found out that Ngo already resigned from Asiatrust
Bank and could no longer be located. Hence, he confronted Gracia regarding the dishonored
checks. He eventually learned that Gracia invested his money in the construction and realty
business of Gracias husband, Danny Hao (Danny). Despite their promises to pay, the petitioners
never returned Dys money.

On July 17, 2003, Dy filed a supplemental affidavit to include in the criminal complaint Chester De
Joya, Allan Roxas, Samantha Roxas, Geraldine Chiong, and Lyn Ansuas all incorporators and/or
directors of State Resources. 11

On the basis of Dys complaint and supplemental affidavit, the public prosecutor filed an
12 13

information for syndicated estafa against the petitioners and their six co-accused. The case was
14

docketed as Criminal Case No. 03-219952 and was raffled to respondent RTC of Manila, Branch 40.

Judge Placido Marquez issued warrants of arrest against the petitioners and the other accused.
Consequently, petitioners immediately filed a motion to defer arraignment and motion to lift warrant
of arrest. In their twin motions, they invoked the absence of probable cause against them and the
pendency of their petition for review with the Department of Justice (DOJ). 15

In its February 26, 2004 order, the trial court denied the petitioners twin motions. The petitioners
16

moved for reconsideration but the trial court also denied this in its July 26, 2004 order. Consequently,
the petitioners filed a petition for certiorariunder Rule 65 of the Rules of Court with the CA.

The CAs Ruling

The CA affirmed the denial ofthe petitioners motion to defer arraignment and motion to lift warrant of
arrest.

In determining probable cause for the issuance of a warrant of arrest, a judge is mandated to
personally evaluate the resolution of the prosecutor and its supporting evidence. The CA noted that
17

Judge Marquez only issued the warrants of arrest after his personal examination of the facts and
circumstances of the case. Since the judge complied with the Rules, the CA concluded that no grave
abuse of discretion could be attributed to him.18

In its decision, however, the CA opined that the evidence on record and the assertions in Dys
affidavits only show probable cause for the crime of simple estafa,not syndicated estafa. Under PD
No. 1689, in order for syndicated estafato exist, the swindling must have been committed by five or
more persons, and the fraud must be against the general public or at least a group of persons. In his
complaint-affidavit, Dy merely stated that he relied on the petitioners false representations and was
defrauded into parting with his money, causing him damage. Since there was no evidence that
19

State Resources was formed to defraud the public in general or that it was used to solicit money
from other persons aside from Dy, then the offense charged should only be for simple estafa. 20

Nevertheless, the CA found that the trial court did not commit grave abuse of discretion in issuing the
warrants of arrest against the petitioners as there was still probable cause to believe that the
petitioners committed the crime of simple estafa. 21

The Petition
The petitioners submit that an examination of Dys affidavits shows inconsistencies in his cited
factual circumstances. These inconsistencies, according to the petitioners, negate the existence of
probable cause against themfor the crime charged.

The petitioners also contend thatit was only Ngo who enticed Dy to invest his money. As early as
August 1995, State Resources had already been dissolved, thus negating the assertion that Dy
advanced funds for this corporation. They question the fact that it took Dy almost five years to file
22

his complaint despitehis allegation that he lost almost P100,000,000.00. 23

Lastly, the petitioners claim that the warrants of arrest issued against them were null and void.
Contrary to the trial courts findings, the CA noted in the body of its decision, that PD 1689 was
inapplicable to their case. There was no evidence to show that State Resources was formed to solicit
funds not only from Dy but also from the general public. Since simple estafaand syndicated
estafaare two distinct offenses, then the warrants of arrest issued to petitioners were erroneous
because these warrants pertained to two different crimes. 24

The Courts Ruling

We resolve to DENYthe petition.

Procedural Consideration

We note that the present petition questions the CAs decision and resolution on the petition for
certiorarithe petitioners filed with that court. At the CA, the petitioners imputed grave abuse of
discretion against the trial court for the denialof their twin motions to defer arraignment and to lift
warrant of arrest.

This situation is similar to the procedural issue we addressed in the case of Montoya v. Transmed
Manila Corporation where we faced the question of how to review a Rule 45 petition before us, a
25

CA decision made under Rule 65. We clarified in this cited case the kind of review that this Court
should undertake given the distinctionsbetween the two remedies. In Rule 45, we consider the
correctness of the decision made by an inferior court. In contrast, a Rule 65 review focuses on
jurisdictional errors.

As in Montoya, we need to scrutinize the CA decision in the same context that the petition for
certiorari it ruled upon was presented to it. Thus, we need to examine the CA decision from the prism
of whether it correctly determined the presence or absence of grave abuse of discretion on the part
of the trial court and not on the basis of whether the trial courts denial of petitioners motions was
strictly legally correct. In question form, the question to ask is: did the CA correctly determine
whether the trial court committed grave abuse of discretion in denying petitioners motions to defer
arraignment and lift warrant of arrest?

Probable Cause for the Issuance of a Warrant of Arrest

Under the Constitution and the Revised Rules of Criminal Procedure, a judge is mandated to
26 27

personally determine the existence of probable cause after hispersonal evaluation of the
prosecutors resolution and the supporting evidence for the crime charged. These provisions
command the judge to refrain from making a mindless acquiescence to the prosecutors findings and
to conduct his own examination of the facts and circumstances presented by both parties.
Section 5(a) of Rule 112, grantsthe trial court three options upon the filing of the criminal complaint
orinformation. He may: a) dismiss the case if the evidence on record clearly failed to establish
probable cause; b) issue a warrant of arrest if it finds probable cause; or c) order the prosecutor to
present additional evidence within five days from notice in case of doubt on the existence of
probable cause. 28

In the present case, the trial court chose to issue warrants of arrest to the petitioners and their co-
accused.To be valid, these warrants must have been issued after compliance with the requirement
that probable cause be personally determined by the judge. Notably at this stage, the judge is tasked
to merely determine the probability, not the certainty, of guilt of the accused.In doing so, he need not
conduct a de novohearing; he only needs to personally review the prosecutor's initial determination
and see if it is supported by substantial evidence. 29

The records showed that Judge Marquez made a personal determination of the existence of
probable cause to support the issuance of the warrants. The petitioners, in fact, did not present any
evidence to controvert this. As the trial court ruled in its February 26, 2004 order:

The non-arrest of all the accused or their refusal to surrender practically resulted in the suspension
of arraignment exceeding the sixty (60) days counted from the filing of co-accused De Joyas
motions, which may be considered a petition for review, and that of co-accused Spouses Haos own
petition for review. This is not to mention the delay in the resolutionby the Department of Justice. On
the other hand, co-accused DeJoyas motion to determine probable cause and co-accused Spouses
Haos motion to lift warrant of arrest have been rendered moot and academic with the issuance of
warrants of arrest by this presiding judge after his personal examination of the facts and
circumstances strong enough in themselves to support the belief that they are guilty of the crime that
in fact happened. [Emphasis ours]
30

Under this situation, we conclude that Judge Marquez did not arbitrarily issue the warrants of arrest
against the petitioners. As stated by him, the warrants were only issuedafter his personal evaluation
of the factual circumstances that led him to believe that there was probable cause to apprehend the
petitioners for their commission of a criminal offense.

Distinction between Executive and Judicial Determination of Probable Cause

In a criminal prosecution, probable cause is determined at two stages. The first is at the executive
level, where determination is made by the prosecutor during the preliminary investigation, before the
filing of the criminal information. The second is at the judicial level, undertaken by the judge before
the issuance of a warrant of arrest.

In the case at hand, the question before us relates to the judicial determination of probable cause. In
order to properly resolve if the CA erred in affirming the trial courts issuance of the warrants of arrest
against the petitioners, it is necessary to scrutinize the crime of estafa, whether committed as a
simple offense or through a syndicate.

The crime of swindling or estafa is covered by Articles 315-316 of the RPC. In these provisions, the
different modes by which estafa may be committed, as well as the corresponding penalties for each
are outlined. One of these modes is estafaby means of deceit. Article 315(2)(a) of the RPC defines
how this particular crime is perpetrated:
2. By means of any of the following false pretenses or fraudulent acts executed prior toor
simultaneously with the commission of the fraud:

(a) By using fictitious name, or falsely pretending to possess power, influence, qualifications,
property, credit, agency, business orimaginary transactions, or by means of other similar deceits.

Under this provision, estafa has the following elements: 1) the existence of a false pretense,
fraudulent act or fraudulent means; 2) the execution of the false pretense, fraudulent act or
fraudulent means prior to or simultaneously with the commission of the fraud; 3) the reliance by the
offended party on the false pretense, fraudulent act or fraudulent means, which induced him to part
withhis money or property; and 4) as a result, the offended party suffered damage. 31

As Dy alleged in his complaint-affidavit, Ngo and Gracia induced him to invest with State Resources
and promised him a higher rate of return. Because of his good business relationship with Ngo and
32

relying on Gracias attractive financial representations, Dy initially invested the approximate amount
of P10,000,000.00.

This first investment earned profits. Thus, Dy was enticed by Gracia to invest more so that he
eventually advanced almost P100,000,000.00 with State Resources. Gracias succeeding checks
33

representing the earnings of his investments, however, were all dishonored upon deposit. He 34

subsequently learned that the petitioners used his money for Dannys construction and realty
business. Despite repeated demands and the petitioners constant assurances to pay, they never
35

returned Dys invested money and its supposed earnings. 36

These cited factual circumstances show the elements of estafaby means of deceit. The petitioners
inducedDy to invest in State Resources promising higher returns. But unknown to Dy, what occurred
was merely a ruse to secure his money to be used in Dannys construction and realty business. The
petitioners deceit became more blatant when they admitted in their petition that as early as August
1995, State Resources had already been dissolved. This admission strengthens the conclusion that
37

the petitioners misrepresented facts regarding themselves and State Resources in order to persuade
Dy to part with his money for investment with an inexistent corporation.

These circumstances all serve as indicators of the petitioners deceit. "Deceit is the false
representation of a matter of fact, whether by words or conduct, by false or misleading allegations, or
by concealment of that which should have been disclosed, which deceives or is intended to deceive
another, so that he shall act upon it to his legal injury."
38

Thus, had it not been for the petitioners false representations and promises, Dy would not have
placed his money in State Resources, to his damage. These allegations cannot but lead us to the
conclusion that probable cause existed as basis to arrest the petitioners for the crime of estafa by
means of deceit.

We now address the issue of whether estafain this case was committed through a syndicate.

Under Section 1 of PD No. 1689, there is syndicated estafaif the following elements are present: 1)
39

estafaor other forms of swindling as defined in Articles 315 and 316 of the RPC was committed; 2)
the estafaor swindling was committed by a syndicate of five or more persons; and 3) the fraud
resulted inthe misappropriation of moneys contributed by stockholders, or members of rural banks,
cooperatives, "samahang nayon[s]," or farmers associations or of funds solicited by
corporations/associations from the general public. 40

The factual circumstances of the present case show that the first and second elements of syndicated
estafaare present; there is probable cause for violation of Article 315(2)(a) of the RPC against the
petitioners. Moreover, in Dys supplemental complaint-affidavit, he alleged that the fraud perpetrated
against him was committed, not only by Ngo and the petitioners, but also by the other officers and
directors of State Resources. The number of the accused who allegedly participated in defrauding
Dy exceeded five, thus satisfying the requirement for the existence of a syndicate.

However, the third element of the crime is patently lacking. The funds fraudulently solicited by the
corporation must come from the general public. In the present case, no evidence was presented to
show that aside from Dy, the petitioners, through State Resources, also sought investments from
other people. Dy had no co-complainants alleging that they were also deceived to entrust their
money to State Resources. The general public element was not complied with. Thus, no syndicated
estafaallegedly took place, only simple estafa by means of deceit.

Despite this conclusion, we still hold that the CA did not err in affirming the trial courts denial ofthe
petitioners motion to lift warrant of arrest.

A warrant of arrest should be issued if the judge after personal evaluation of the facts and
circumstances is convinced that probable cause exists that an offense was committed.

Probable cause for the issuance ofa warrant of arrest is the existence of such facts and
circumstances that would lead a reasonably discreet and prudent person to believethat an offense
was committed by the person sought to be arrested. This must be distinguished from the
41

prosecutors finding of probable cause which is for the filing of the proper criminal information.
Probable cause for warrant of arrest is determined to address the necessity of placing the accused
under custody in order not to frustrate the ends of justice. 42

In People v. Castillo and Mejia, we explained the distinction between the two kinds of probable
43

cause determination:

There are two kinds of determination of probable cause: executive and judicial. The executive
determination of probable cause is one made during preliminary investigation. It is a function that
properly pertains to the public prosecutor who is given a broad discretion to determine whether
probable cause exists and to charge those whom he believes to have committed the crime as
defined by law and thus should be held for trial. Otherwise stated, such official has the quasi-judicial
authority to determine whether or not a criminal case must be filed in court. Whether or not that
function has been correctly discharged by the public prosecutor, i.e., whether or not he has made a
correct ascertainment of the existence of probable cause in a case, is a matter that the trial court
itself does not and may not be compelled to pass upon.

The judicial determination of probable cause, on the other hand, is one made by the judge to
ascertain whether a warrant of arrest should be issued against the accused. The judge must satisfy
himself that based on the evidence submitted, there is necessity for placing the accused under
custody in order not to frustrate the ends of justice. If the judge finds no probable cause, the judge
cannot be forced to issue the arrest warrant. [Emphasis ours]
44
With our conclusion that probable cause existed for the crime of simple estafa and that the
petitioners have probably committed it, it follows that the issuance of the warrants of arrest against
the petitioners remains to be valid and proper. To allow them to go scot-free would defeat rather than
promote the purpose of a warrant of arrest, which is to put the accused in the courts custodyto avoid
his flight from the clutches of justice.

Moreover, we note that simple estafa and syndicated estafa are not two entirely different crimes.
Simple estafais a crime necessarily included in syndicated estafa. An offense is necessarily included
in another offense when the essential ingredients of the former constitute or form a part of those
constituting the latter.
45

Under this legal situation, only a formal amendment of the filed information under Section 14, Rule
110 of the Rules of Court is necessary; the warrants of arrest issued against the petitioners should
46

not be nullified since probable cause exists for simple estafa.

Suspension of Arraignment

Under Section 11(c), Rule 116of the Rules of Court, an arraignment may be suspended if there is a
petition for review of the resolution of the prosecutor pending at either the DOJ, or the Office of the
President. However, such period of suspension should not exceed sixty (60) days counted from the
filing of the petition with the reviewing office.

As the petitioners alleged, they filed a petition for review with the DOJ on November 21, 2003. Since
this petition had not been resolved yet, they claimed that their arraignment should be suspended
indefinitely.

We emphasize that the right of an accused to have his arraignment suspended is not an unqualified
right. In Spouses Trinidad v. Ang, we explained that while the pendency of a petition for review is a
1wphi1
47

ground for suspension of the arraignment, the Rules limit the deferment of the arraignment to a
period of 60 days reckoned from the filing of the petition with the reviewing office. It follows,
therefore, that after the expiration of the 60-day period, the trial court is bound to arraign the accused
or to deny the motion to defer arraignment. 48

As the trial court found in its February 26, 2004 order, the DOJ's delay in resolving the petitioners'
petition for review had already exceeded 60 days. Since the suspension of the petitioners'
arraignment was already beyond the period allowed by the Rules, the petitioners' motion to suspend
completely lacks any legal basis.

As a final note, we observe that the resolution of this case had long been delayed because of the
petitioners' refusal to submit to the trial court's jurisdiction and their erroneous invocation of the
Rules in their favor. As there is probable cause for the petitioners' commission of a crime, their arrest
and arraignment should now ensue so that this case may properly proceed to trial, where the merits
of both the parties' evidence and allegations may be weighed.

WHEREFORE, premises considered, we hereby DENY the petition and AFFIRM WITH
MODIFICATION the February 28, 2006 decision and June 13, 2008 resolution of the Court of
Appeals in CAG.R. SP No. 86289. We hereby order that petitioners Ma. Gracia Hao and Danny Hao
be charged for simple estafa under Article 315(2)(a) of the Revised Penal Code, as amended and be
arraigned for this charge. The warrants of arrest issued stand.
SO ORDERED.