1.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 177407 February 9, 2011

RICO ROMMEL ATIENZA, Petitioner,

vs.
BOARD OF MEDICINE and EDITHA SIOSON, Respondents.

DECISION

NACHURA, J.:

Before us is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the
Decision1 dated September 22, 2006 of the Court of Appeals (CA) in CA-G.R. SP No. 87755.
The CA dismissed the petition for certiorari filed by petitioner Rico Rommel Atienza (Atienza),
which, in turn, assailed the Orders2 issued by public respondent Board of Medicine (BOM) in
Administrative Case No. 1882.

The facts, fairly summarized by the appellate court, follow.

Due to her lumbar pains, private respondent Editha Sioson went to Rizal Medical Center (RMC)
for check-up on February 4, 1995. Sometime in 1999, due to the same problem, she was referred
to Dr. Pedro Lantin III of RMC who, accordingly, ordered several diagnostic laboratory tests.
The tests revealed that her right kidney is normal. It was ascertained, however, that her left
kidney is non-functioning and non-visualizing. Thus, she underwent kidney operation in
September, 1999.

On February 18, 2000, private respondent’s husband, Romeo Sioson (as complainant), filed a
complaint for gross negligence and/or incompetence before the [BOM] against the doctors who
allegedly participated in the fateful kidney operation, namely: Dr. Judd dela Vega, Dr. Pedro
Lantin, III, Dr. Gerardo Antonio Florendo and petitioner Rico Rommel Atienza.

It was alleged in the complaint that the gross negligence and/or incompetence committed by the
said doctors, including petitioner, consists of the removal of private respondent’s fully functional
right kidney, instead of the left non-functioning and non-visualizing kidney.

The complaint was heard by the [BOM]. After complainant Romeo Sioson presented his
evidence, private respondent Editha Sioson, also named as complainant there, filed her formal
offer of documentary evidence. Attached to the formal offer of documentary evidence are her
Exhibits "A" to "D," which she offered for the purpose of proving that her kidneys were both in
their proper anatomical locations at the time she was operated. She described her exhibits, as
follows:

"EXHIBIT ‘A’ – the certified photocopy of the X-ray Request form dated December 12,
1996, which is also marked as Annex ‘2’ as it was actually originally the Annex to x x x
Dr. Pedro Lantin, III’s counter affidavit filed with the City Prosecutor of Pasig City in
connection with the criminal complaint filed by [Romeo Sioson] with the said office, on
which are handwritten entries which are the interpretation of the results of the ultrasound
examination. Incidentally, this exhibit happens to be the same as or identical to the
certified photocopy of the document marked as Annex ‘2’ to the Counter-Affidavit dated
March 15, 2000, filed by x x x Dr. Pedro Lantin, III, on May 4, 2000, with this Honorable
Board in answer to this complaint;

"EXHIBIT ‘B’ – the certified photo copy of the X-ray request form dated January 30,
1997, which is also marked as Annex ‘3’ as it was actually likewise originally an Annex
to x x x Dr. Pedro Lantin, III’s counter-affidavit filed with the Office of the City
 Prosecutor of Pasig City in connection with the criminal complaint filed by the herein
complainant with the said office, on which are handwritten entries which are the
interpretation of the results of the examination. Incidentally, this exhibit happens to be
also the same as or identical to the certified photo copy of the document marked as
Annex ‘3’ which is likewise dated January 30, 1997, which is appended as such Annex
‘3’ to the counter-affidavit dated March 15, 2000, filed by x x x Dr. Pedro Lantin, III on
May 4, 2000, with this Honorable Board in answer to this complaint.

"EXHIBIT ‘C’ – the certified photocopy of the X-ray request form dated March 16,
1996, which is also marked as Annex ‘4,’ on which are handwritten entries which are the
interpretation of the results of the examination.

"EXHIBIT ‘D’ – the certified photocopy of the X-ray request form dated May 20, 1999,
which is also marked as Annex ‘16,’ on which are handwritten entries which are the
interpretation of the results of the examination. Incidentally, this exhibit appears to be the
draft of the typewritten final report of the same examination which is the document
appended as Annexes ‘4’ and ‘1’ respectively to the counter-affidavits filed by x x x Dr.
Judd dela Vega and Dr. Pedro Lantin, III in answer to the complaint. In the case of Dr.
dela Vega however, the document which is marked as Annex ‘4’ is not a certified
photocopy, while in the case of Dr. Lantin, the document marked as Annex ‘1’ is a
certified photocopy. Both documents are of the same date and typewritten contents are
the same as that which are written on Exhibit ‘D.’

Petitioner filed his comments/objections to private respondent’s [Editha Sioson’s] formal offer of
exhibits. He alleged that said exhibits are inadmissible because the same are mere photocopies,
not properly identified and authenticated, and intended to establish matters which are hearsay.
He added that the exhibits are incompetent to prove the purpose for which they are offered.

Dispositions of the Board of Medicine

The formal offer of documentary exhibits of private respondent [Editha Sioson] was admitted by
the [BOM] per its Order dated May 26, 2004. It reads:

"The Formal Offer of Documentary Evidence of [Romeo Sioson], the Comments/Objections of

[herein petitioner] Atienza, [therein respondents] De la Vega and Lantin, and the Manifestation
of [therein] respondent Florendo are hereby ADMITTED by the [BOM] for whatever purpose
they may serve in the resolution of this case.

"Let the hearing be set on July 19, 2004 all at 1:30 p.m. for the reception of the evidence of the
respondents.

"SO ORDERED."

Petitioner moved for reconsideration of the abovementioned Order basically on the same reasons
stated in his comment/objections to the formal offer of exhibits.

The [BOM] denied the motion for reconsideration of petitioner in its Order dated October 8,
2004. It concluded that it should first admit the evidence being offered so that it can determine its
probative value when it decides the case. According to the Board, it can determine whether the
evidence is relevant or not if it will take a look at it through the process of admission. x x x.3

Disagreeing with the BOM, and as previously adverted to, Atienza filed a petition for certiorari
with the CA, assailing the BOM’s Orders which admitted Editha Sioson’s (Editha’s) Formal
Offer of Documentary Evidence. The CA dismissed the petition for certiorari for lack of merit.

Hence, this recourse positing the following issues:

I. PROCEDURAL ISSUE:

WHETHER PETITIONER ATIENZA AVAILED OF THE PROPER REMEDY WHEN

HE FILED THE PETITION FOR CERTIORARI DATED 06 DECEMBER 2004 WITH
THE COURT OF APPEALS UNDER RULE 65 OF THE RULES OF COURT TO
 ASSAIL THE ORDERS DATED 26 MAY 2004 AND 08 OCTOBER 2004 OF
RESPONDENT BOARD.

II. SUBSTANTIVE ISSUE:

WHETHER THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE

ERROR AND DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT IN
ACCORDANCE WITH LAW AND THE APPLICABLE DECISIONS OF THE
HONORABLE COURT WHEN IT UPHELD THE ADMISSION OF INCOMPETENT
AND INADMISSIBLE EVIDENCE BY RESPONDENT BOARD, WHICH CAN
RESULT IN THE DEPRIVATION OF PROFESSIONAL LICENSE – A PROPERTY
RIGHT OR ONE’S LIVELIHOOD.4

We find no reason to depart from the ruling of the CA.

Petitioner is correct when he asserts that a petition for certiorari is the proper remedy to assail the
Orders of the BOM, admitting in evidence the exhibits of Editha. As the assailed Orders were
interlocutory, these cannot be the subject of an appeal separate from the judgment that
completely or finally disposes of the case.5 At that stage, where there is no appeal, or any plain,
speedy, and adequate remedy in the ordinary course of law, the only and remaining remedy left
to petitioner is a petition for certiorari under Rule 65 of the Rules of Court on the ground of
grave abuse of discretion amounting to lack or excess of jurisdiction.

However, the writ of certiorari will not issue absent a showing that the BOM has acted without
or in excess of jurisdiction or with grave abuse of discretion. Embedded in the CA’s finding that
the BOM did not exceed its jurisdiction or act in grave abuse of discretion is the issue of whether
the exhibits of Editha contained in her Formal Offer of Documentary Evidence are inadmissible.

Petitioner argues that the exhibits formally offered in evidence by Editha: (1) violate the best
evidence rule; (2) have not been properly identified and authenticated; (3) are completely
hearsay; and (4) are incompetent to prove their purpose. Thus, petitioner contends that the
exhibits are inadmissible evidence.

We disagree.

To begin with, it is well-settled that the rules of evidence are not strictly applied in proceedings
before administrative bodies such as the BOM.6 Although trial courts are enjoined to observe
strict enforcement of the rules of evidence,7in connection with evidence which may appear to be
of doubtful relevancy, incompetency, or admissibility, we have held that:

[I]t is the safest policy to be liberal, not rejecting them on doubtful or technical grounds, but
admitting them unless plainly irrelevant, immaterial or incompetent, for the reason that their
rejection places them beyond the consideration of the court, if they are thereafter found relevant
or competent; on the other hand, their admission, if they turn out later to be irrelevant or
incompetent, can easily be remedied by completely discarding them or ignoring them.8

From the foregoing, we emphasize the distinction between the admissibility of evidence and the
probative weight to be accorded the same pieces of evidence. PNOC Shipping and Transport
Corporation v. Court of Appeals9 teaches:

Admissibility of evidence refers to the question of whether or not the circumstance (or evidence)
is to be considered at all. On the other hand, the probative value of evidence refers to the
question of whether or not it proves an issue.

Second, petitioner’s insistence that the admission of Editha’s exhibits violated his substantive
rights leading to the loss of his medical license is misplaced. Petitioner mistakenly relies on
Section 20, Article I of the Professional Regulation Commission Rules of Procedure, which
reads:

Section 20. Administrative investigation shall be conducted in accordance with these Rules. The
Rules of Court shall only apply in these proceedings by analogy or on a suppletory character and
whenever practicable and convenient. Technical errors in the admission of evidence which do
not prejudice the substantive rights of either party shall not vitiate the proceedings.10

As pointed out by the appellate court, the admission of the exhibits did not prejudice the
substantive rights of petitioner because, at any rate, the fact sought to be proved thereby, that the
two kidneys of Editha were in their proper anatomical locations at the time she was operated on,
is presumed under Section 3, Rule 131 of the Rules of Court:

Sec. 3. Disputable presumptions. – The following presumptions are satisfactory if

uncontradicted, but may be contradicted and overcome by other evidence:

xxxx

(y) That things have happened according to the ordinary course of nature and the ordinary habits
of life.

The exhibits are certified photocopies of X-ray Request Forms dated December 12, 1996,
January 30, 1997, March 16, 1996, and May 20, 1999, filed in connection with Editha’s medical
case. The documents contain handwritten entries interpreting the results of the examination.
These exhibits were actually attached as annexes to Dr. Pedro Lantin III’s counter affidavit filed
with the Office of the City Prosecutor of Pasig City, which was investigating the criminal
complaint for negligence filed by Editha against the doctors of Rizal Medical Center (RMC) who
handled her surgical procedure. To lay the predicate for her case, Editha offered the exhibits in
evidence to prove that her "kidneys were both in their proper anatomical locations at the time" of
her operation.

The fact sought to be established by the admission of Editha’s exhibits, that her "kidneys were
both in their proper anatomical locations at the time" of her operation, need not be proved as it is
covered by mandatory judicial notice.11

Unquestionably, the rules of evidence are merely the means for ascertaining the truth respecting
a matter of fact.12Thus, they likewise provide for some facts which are established and need not
be proved, such as those covered by judicial notice, both mandatory and discretionary.13 Laws of
nature involving the physical sciences, specifically biology,14 include the structural make-up and
composition of living things such as human beings. In this case, we may take judicial notice that
Editha’s kidneys before, and at the time of, her operation, as with most human beings, were in
their proper anatomical locations.

Third, contrary to the assertion of petitioner, the best evidence rule is

inapplicable.1awphil Section 3 of Rule 130 provides:

1. Best Evidence Rule

Sec. 3. Original document must be produced; exceptions. – When the subject of inquiry is the
contents of a document, no evidence shall be admissible other than the original document itself,
except in the following cases:

(a) When the original has been lost or destroyed, or cannot be produced in court, without
bad faith on the part of the offeror;

(b) When the original is in the custody or under the control of the party against whom the
evidence is offered, and the latter fails to produce it after reasonable notice;

(c) When the original consists of numerous accounts or other documents which cannot be
examined in court without great loss of time and the fact sought to be established from
them is only the general result of the whole; and

(d) When the original is a public record in the custody of a public officer or is recorded in
a public office.

The subject of inquiry in this case is whether respondent doctors before the BOM are liable for
gross negligence in removing the right functioning kidney of Editha instead of the left non-
functioning kidney, not the proper anatomical locations of Editha’s kidneys. As previously
discussed, the proper anatomical locations of Editha’s kidneys at the time of her operation at the
RMC may be established not only through the exhibits offered in evidence.

Finally, these exhibits do not constitute hearsay evidence of the anatomical locations of Editha’s
kidneys. To further drive home the point, the anatomical positions, whether left or right, of
Editha’s kidneys, and the removal of one or both, may still be established through a belated
ultrasound or x-ray of her abdominal area.

In fact, the introduction of secondary evidence, such as copies of the exhibits, is

allowed.15 Witness Dr. Nancy Aquino testified that the Records Office of RMC no longer had
the originals of the exhibits "because [it] transferred from the previous building, x x x to the new
building."16 Ultimately, since the originals cannot be produced, the BOM properly admitted
Editha’s formal offer of evidence and, thereafter, the BOM shall determine the probative value
thereof when it decides the case.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. SP
No. 87755 is AFFIRMED. Costs against petitioner.

SO ORDERED.
2.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 157943 September 4, 2013

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE,

vs.
GILBERT REYES WAGAS, ACCUSED-APPELLANT.

DECISION

BERSAMIN, J.:

The Bill of Rights guarantees the right of an accused to be presumed innocent until the contrary
is proved. In order to overcome the presumption of innocence, the Prosecution is required to
adduce against him nothing less than proof beyond reasonable doubt. Such proof is not only in
relation to the elements of the offense, but also in relation to the identity of the offender. If the
Prosecution fails to discharge its heavy burden, then it is not only the right of the accused to be
freed, it becomes the Court’s constitutional duty to acquit him.

The Case

Gilbert R. Wagas appeals his conviction for estafa under the decision rendered on July 11, 2002
by the Regional Trial Court, Branch 58, in Cebu City (RTC), meting on him the indeterminate
penalty of 12 years of prision mayor, as minimum, to 30 years of reclusion perpetua, as
maximum.

Antecedents

Wagas was charged with estafa under the information that reads:

That on or about the 30th day of April, 1997, and for sometime prior and subsequent thereto, in
the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said
accused, with deliberate intent, with intent to gain and by means of false pretenses or fraudulent
acts executed prior to or simultaneously with the commission of the fraud, to wit: knowing that
he did not have sufficient funds deposited with the Bank of Philippine Islands, and without
informing Alberto Ligaray of that circumstance, with intent to defraud the latter, did then and
there issue Bank of the Philippine Islands Check No. 0011003, dated May 08, 1997 in the
amount of ₱200,000.00, which check was issued in payment of an obligation, but which check
when presented for encashment with the bank, was dishonored for the reason "drawn against
insufficient funds" and inspite of notice and several demands made upon said accused to make
good said check or replace the same with cash, he had failed and refused and up to the present
time still fails and refuses to do so, to the damage and prejudice of Alberto Ligaray in the amount
aforestated.

CONTRARY TO LAW.1

After Wagas entered a plea of not guilty,2 the pre-trial was held, during which the Defense
admitted that the check alleged in the information had been dishonored due to insufficient
funds.3 On its part, the Prosecution made no admission.4

At the trial, the Prosecution presented complainant Alberto Ligaray as its lone witness. Ligaray
testified that on April 30, 1997, Wagas placed an order for 200 bags of rice over the telephone;
that he and his wife would not agree at first to the proposed payment of the order by postdated
check, but because of Wagas’ assurance that he would not disappoint them and that he had the
means to pay them because he had a lending business and money in the bank, they relented and
accepted the order; that he released the goods to Wagas on April 30, 1997 and at the same time
received Bank of the Philippine Islands (BPI) Check No. 0011003 for ₱200,000.00 payable to
cash and postdated May 8, 1997; that he later deposited the check with Solid Bank, his
depository bank, but the check was dishonored due to insufficiency of funds;5 that he called
Wagas about the matter, and the latter told him that he would pay upon his return to Cebu; and
that despite repeated demands, Wagas did not pay him.6

On cross-examination, Ligaray admitted that he did not personally meet Wagas because they
transacted through telephone only; that he released the 200 bags of rice directly to Robert
Cañada, the brother-in-law of Wagas, who signed the delivery receipt upon receiving the rice.7

After Ligaray testified, the Prosecution formally offered the following: (a) BPI Check No.
0011003 in the amount of ₱200,000.00 payable to "cash;" (b) the return slip dated May 13, 1997
issued by Solid Bank; (c) Ligaray’s affidavit; and (d) the delivery receipt signed by Cañada.
After the RTC admitted the exhibits, the Prosecution then rested its case.8

In his defense, Wagas himself testified. He admitted having issued BPI Check No. 0011003 to
Cañada, his brother-in-law, not to Ligaray. He denied having any telephone conversation or any
dealings with Ligaray. He explained that the check was intended as payment for a portion of
Cañada’s property that he wanted to buy, but when the sale did not push through, he did not
anymore fund the check.9

On cross-examination, the Prosecution confronted Wagas with a letter dated July 3, 1997
apparently signed by him and addressed to Ligaray’s counsel, wherein he admitted owing
Ligaray ₱200,000.00 for goods received, to wit:

This is to acknowledge receipt of your letter dated June 23, 1997 which is self-explanatory. It is
worthy also to discuss with you the environmental facts of the case for your consideration, to
wit:

It is true that I obtained goods from your client worth ₱200,000.00 and I promised to settle the
same last May 10, 1997, but to no avail. On this point, let me inform you that I sold my real
property to a buyer in Manila, and promised to pay the consideration on the same date as I
promised with your client. Unfortunately, said buyer likewise failed to make good with such
obligation. Hence, I failed to fulfill my promise resultant thereof. (sic)

Again, I made another promise to settle said obligation on or before June 15, 1997, but still to no
avail attributable to the same reason as aforementioned. (sic)

To arrest this problem, we decided to source some funds using the subject property as collateral.
This other means is resorted to for the purpose of settling the herein obligation. And as to its
status, said funds will be rele[a]sed within thirty (30) days from today.

In view of the foregoing, it is my sincere request and promise to settle said obligation on or
before August 15, 1997.

Lastly, I would like to manifest that it is not my intention to shy away from any financial
obligation.

xxxx

Respectfully yours,

(SGD.)
GILBERT R. WAGAS10

Wagas admitted the letter, but insisted that it was Cañada who had transacted with Ligaray, and
that he had signed the letter only because his sister and her husband (Cañada) had begged him to
assume the responsibility.11 On redirect examination, Wagas declared that Cañada, a seafarer,
was then out of the country; that he signed the letter only to accommodate the pleas of his sister
and Cañada, and to avoid jeopardizing Cañada’s application for overseas employment.12 The
Prosecution subsequently offered and the RTC admitted the letter as rebuttal evidence.13
 Decision of the RTC

As stated, the RTC convicted Wagas of estafa on July 11, 2002, viz:

WHEREFORE, premises considered, the Court finds the accused GUILTY beyond reasonable
doubt as charged and he is hereby sentenced as follows:

To suffer an indeterminate penalty of from twelve (12) years of pris[i]on mayor, as minimum, to
thirty (30) years of reclusion perpetua as maximum;

To indemnify the complainant, Albert[o] Ligaray in the sum of ₱200,000.00;

To pay said complainant the sum of ₱30,000.00 by way of attorney’s fees; and the costs of suit.

SO ORDERED.14

The RTC held that the Prosecution had proved beyond reasonable doubt all the elements
constituting the crime of estafa, namely: (a) that Wagas issued the postdated check as payment
for an obligation contracted at the time the check was issued; (b) that he failed to deposit an
amount sufficient to cover the check despite having been informed that the check had been
dishonored; and (c) that Ligaray released the goods upon receipt of the postdated check and upon
Wagas’ assurance that the check would be funded on its date.

Wagas filed a motion for new trial and/or reconsideration,15 arguing that the Prosecution did not
establish that it was he who had transacted with Ligaray and who had negotiated the check to the
latter; that the records showed that Ligaray did not meet him at any time; and that Ligaray’s
testimony on their alleged telephone conversation was not reliable because it was not shown that
Ligaray had been familiar with his voice. Wagas also sought the reopening of the case based on
newly discovered evidence, specifically: (a) the testimony of Cañada who could not testify
during the trial because he was then out of the country, and (b) Ligaray’s testimony given against
Wagas in another criminal case for violation of Batas Pambansa Blg. 22.

On October 21, 2002, the RTC denied the motion for new trial and/or reconsideration, opining
that the evidence Wagas desired to present at a new trial did not qualify as newly discovered, and
that there was no compelling ground to reverse its decision.16

Wagas appealed directly to this Court by notice of appeal.17

Prior to the elevation of the records to the Court, Wagas filed a petition for admission to bail
pending appeal. The RTC granted the petition and fixed Wagas’ bond at ₱40,000.00.18 Wagas
then posted bail for his provisional liberty pending appeal.19

The resolution of this appeal was delayed by incidents bearing on the grant of Wagas’
application for bail. On November 17, 2003, the Court required the RTC Judge to explain why
Wagas was out on bail.20 On January 15, 2004, the RTC Judge submitted to the Court a so-called
manifestation and compliance which the Court referred to the Office of the Court Administrator
(OCA) for evaluation, report, and recommendation.21 On July 5, 2005, the Court, upon the
OCA’s recommendation, directed the filing of an administrative complaint for simple ignorance
of the law against the RTC Judge.22 On September 12, 2006, the Court directed the OCA to
comply with its July 5, 2005 directive, and to cause the filing of the administrative complaint
against the RTC Judge. The Court also directed Wagas to explain why his bail should not be
cancelled for having been erroneously granted.23 Finally, in its memorandum dated September
27, 2006, the OCA manifested to the Court that it had meanwhile filed the administrative
complaint against the RTC Judge.24

Issues

In this appeal, Wagas insists that he and Ligaray were neither friends nor personally known to
one other; that it was highly incredible that Ligaray, a businessman, would have entered into a
transaction with him involving a huge amount of money only over the telephone; that on the
contrary, the evidence pointed to Cañada as the person with whom Ligaray had transacted,
considering that the delivery receipt, which had been signed by Cañada, indicated that the goods
had been "Ordered by ROBERT CAÑADA," that the goods had been received by Cañada in
good order and condition, and that there was no showing that Cañada had been acting on behalf
of Wagas; that he had issued the check to Cañada upon a different transaction; that Cañada had
negotiated the check to Ligaray; and that the element of deceit had not been established because
it had not been proved with certainty that it was him who had transacted with Ligaray over the
telephone.

The circumstances beg the question: did the Prosecution establish beyond reasonable doubt the
existence of all the elements of the crime of estafa as charged, as well as the identity of the
perpetrator of the crime?

Ruling

The appeal is meritorious.

Article 315, paragraph 2(d) of the Revised Penal Code, as amended, provides:

Article 315. Swindling (estafa). — Any person who shall defraud another by any of the 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:

xxxx

(d) By postdating a check, or issuing a check in payment of an obligation when the offender had
no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of
the check. The failure of the drawer of the check to deposit the amount necessary to cover his
check within three (3) days from receipt of notice from the bank and/or the payee or holder that
said check has been dishonored for lack or insufficiency of funds shall be prima facie evidence
of deceit constituting false pretense or fraudulent act.

In order to constitute estafa under this statutory provision, the act of postdating or issuing a
check in payment of an obligation must be the efficient cause of the defraudation. This means
that the offender must be able to obtain money or property from the offended party by reason of
the issuance of the check, whether dated or postdated. In other words, the Prosecution must show
that the person to whom the check was delivered would not have parted with his money or
property were it not for the issuance of the check by the offender.25

The essential elements of the crime charged are that: (a) a check is postdated or issued in
payment of an obligation contracted at the time the check is issued; (b) lack or insufficiency of
funds to cover the check; and (c) damage to the payee thereof.26 It is the criminal fraud or deceit
in the issuance of a check that is punishable, not the non-payment of a debt.27 Prima facie
evidence of deceit exists by law upon proof that the drawer of the check failed to deposit the
amount necessary to cover his check within three days from receipt of the notice of dishonor.

The Prosecution established that Ligaray had released the goods to Cañada because of the
postdated check the latter had given to him; and that the check was dishonored when presented
for payment because of the insufficiency of funds.

In every criminal prosecution, however, the identity of the offender, like the crime itself, must be
established by proof beyond reasonable doubt.28 In that regard, the Prosecution did not establish
beyond reasonable doubt that it was Wagas who had defrauded Ligaray by issuing the check.

Firstly, Ligaray expressly admitted that he did not personally meet the person with whom he was
transacting over the telephone, thus:

Q:

On April 30, 1997, do you remember having a transaction with the accused in this case?
A:

Yes, sir. He purchased two hundred bags of rice from me.

Q:

How did this purchase of rice transaction started? (sic)

A:

He talked with me over the phone and told me that he would like to purchase two hundred bags
of rice and he will just issue a check.29

Even after the dishonor of the check, Ligaray did not personally see and meet whoever he had
dealt with and to whom he had made the demand for payment, and that he had talked with him
only over the telephone, to wit:

Q:

After the check was (sic) bounced, what did you do next?

A:

I made a demand on them.

Q:

How did you make a demand?

A:

I called him over the phone.

Q:

Who is that "him" that you are referring to?

A:

Gilbert Wagas.30

Secondly, the check delivered to Ligaray was made payable to cash. Under the Negotiable
Instruments Law, this type of check was payable to the bearer and could be negotiated by mere
delivery without the need of an indorsement.31 This rendered it highly probable that Wagas had
issued the check not to Ligaray, but to somebody else like Cañada, his brother-in-law, who then
negotiated it to Ligaray.1âwphi1 Relevantly, Ligaray confirmed that he did not himself see or
meet Wagas at the time of the transaction and thereafter, and expressly stated that the person
who signed for and received the stocks of rice was Cañada.

It bears stressing that the accused, to be guilty of estafa as charged, must have used the check in
order to defraud the complainant. What the law punishes is the fraud or deceit, not the mere
issuance of the worthless check. Wagas could not be held guilty of estafa simply because he had
issued the check used to defraud Ligaray. The proof of guilt must still clearly show that it had
been Wagas as the drawer who had defrauded Ligaray by means of the check.

Thirdly, Ligaray admitted that it was Cañada who received the rice from him and who delivered
the check to him. Considering that the records are bereft of any showing that Cañada was then
acting on behalf of Wagas, the RTC had no factual and legal bases to conclude and find that
Cañada had been acting for Wagas. This lack of factual and legal bases for the RTC to infer so
obtained despite Wagas being Cañada’s brother-in-law.
Finally, Ligaray’s declaration that it was Wagas who had transacted with him over the telephone
was not reliable because he did not explain how he determined that the person with whom he had
the telephone conversation was really Wagas whom he had not yet met or known before then.
We deem it essential for purposes of reliability and trustworthiness that a telephone conversation
like that one Ligaray supposedly had with the buyer of rice to be first authenticated before it
could be received in evidence. Among others, the person with whom the witness conversed by
telephone should be first satisfactorily identified by voice recognition or any other
means.32 Without the authentication, incriminating another person just by adverting to the
telephone conversation with him would be all too easy. In this respect, an identification based on
familiarity with the voice of the caller, or because of clearly recognizable peculiarities of the
caller would have sufficed.33 The identity of the caller could also be established by the caller’s
self-identification, coupled with additional evidence, like the context and timing of the telephone
call, the contents of the statement challenged, internal patterns, and other distinctive
characteristics, and disclosure of knowledge of facts known peculiarly to the caller.34

Verily, it is only fair that the caller be reliably identified first before a telephone communication
is accorded probative weight. The identity of the caller may be established by direct or
circumstantial evidence. According to one ruling of the Kansas Supreme Court:

Communications by telephone are admissible in evidence where they are relevant to the fact or
facts in issue, and admissibility is governed by the same rules of evidence concerning face-to-
face conversations except the party against whom the conversations are sought to be used must
ordinarily be identified. It is not necessary that the witness be able, at the time of the
conversation, to identify the person with whom the conversation was had, provided subsequent
identification is proved by direct or circumstantial evidence somewhere in the development of
the case. The mere statement of his identity by the party calling is not in itself sufficient proof of
such identity, in the absence of corroborating circumstances so as to render the conversation
admissible. However, circumstances preceding or following the conversation may serve to
sufficiently identify the caller. The completeness of the identification goes to the weight of the
evidence rather than its admissibility, and the responsibility lies in the first instance with the
district court to determine within its sound discretion whether the threshold of admissibility has
been met.35 (Bold emphasis supplied)

Yet, the Prosecution did not tender any plausible explanation or offer any proof to definitely
establish that it had been Wagas whom Ligaray had conversed with on the telephone. The
Prosecution did not show through Ligaray during the trial as to how he had determined that his
caller was Wagas. All that the Prosecution sought to elicit from him was whether he had known
and why he had known Wagas, and he answered as follows:

Q:

Do you know the accused in this case?

A:

Yes, sir.

Q:

If he is present inside the courtroom […]

A:

No, sir. He is not around.

Q:

Why do you know him?

A:

I know him as a resident of Compostela because he is an ex-mayor of Compostela.36

During cross-examination, Ligaray was allowed another opportunity to show how he had
determined that his caller was Wagas, but he still failed to provide a satisfactory showing, to wit:

Q:

Mr. Witness, you mentioned that you and the accused entered into [a] transaction of rice selling,
particularly with these 200 sacks of rice subject of this case, through telephone conversation?

A:

Yes, sir.

Q:

But you cannot really ascertain that it was the accused whom you are talking with?

A:

I know it was him because I know him.

Q:

Am I right to say [that] that was the first time that you had a transaction with the accused through
telephone conversation, and as a consequence of that alleged conversation with the accused
through telephone he issued a check in your favor?

A:

No. Before that call I had a talk[ ] with the accused.

Q:

But still through the telephone?

A:

Yes, sir.

Q:

There was no instant (sic) that the accused went to see you personally regarding the 200 bags
rice transaction?

A:

No. It was through telephone only.

Q:

In fact[,] you did not cause the delivery of these 200 bags of rice through the accused himself?

A:

Yes. It was through Robert.

Q:

So, after that phone call[,] you deliver[ed] th[ose] 200 sacks of rice through somebody other than
the accused?

A:
Yes, sir.37

Ligaray’s statement that he could tell that it was Wagas who had ordered the rice because he
"know[s]" him was still vague and unreliable for not assuring the certainty of the identification,
and should not support a finding of Ligaray’s familiarity with Wagas as the caller by his voice. It
was evident from Ligaray’s answers that Wagas was not even an acquaintance of Ligaray’s prior
to the transaction. Thus, the RTC’s conclusion that Ligaray had transacted with Wagas had no
factual basis. Without that factual basis, the RTC was speculating on a matter as decisive as the
identification of the buyer to be Wagas.

The letter of Wagas did not competently establish that he was the person who had conversed
with Ligaray by telephone to place the order for the rice. The letter was admitted exclusively as
the State’s rebuttal evidence to controvert or impeach the denial of Wagas of entering into any
transaction with Ligaray on the rice; hence, it could be considered and appreciated only for that
purpose. Under the law of evidence, the court shall consider evidence solely for the purpose for
which it is offered,38 not for any other purpose.39 Fairness to the adverse party demands such
exclusivity. Moreover, the high plausibility of the explanation of Wagas that he had signed the
letter only because his sister and her husband had pleaded with him to do so could not be taken
for granted.

It is a fundamental rule in criminal procedure that the State carries the onus probandi in
establishing the guilt of the accused beyond a reasonable doubt, as a consequence of the tenet ei
incumbit probation, qui dicit, non qui negat, which means that he who asserts, not he who denies,
must prove,40 and as a means of respecting the presumption of innocence in favor of the man or
woman on the dock for a crime. Accordingly, the State has the burden of proof to show: (1) the
correct identification of the author of a crime, and (2) the actuality of the commission of the
offense with the participation of the accused. All these facts must be proved by the State beyond
reasonable doubt on the strength of its evidence and without solace from the weakness of the
defense. That the defense the accused puts up may be weak is inconsequential if, in the first
place, the State has failed to discharge the onus of his identity and culpability. The presumption
of innocence dictates that it is for the Prosecution to demonstrate the guilt and not for the
accused to establish innocence.41 Indeed, the accused, being presumed innocent, carries no
burden of proof on his or her shoulders. For this reason, the first duty of the Prosecution is not to
prove the crime but to prove the identity of the criminal. For even if the commission of the crime
can be established, without competent proof of the identity of the accused beyond reasonable
doubt, there can be no conviction.42

There is no question that an identification that does not preclude a reasonable possibility of
mistake cannot be accorded any evidentiary force.43 Thus, considering that the circumstances of
the identification of Wagas as the person who transacted on the rice did not preclude a
reasonable possibility of mistake, the proof of guilt did not measure up to the standard of proof
beyond reasonable doubt demanded in criminal cases. Perforce, the accused’s constitutional right
of presumption of innocence until the contrary is proved is not overcome, and he is entitled to an
acquittal,44 even though his innocence may be doubted.45

Nevertheless, an accused, though acquitted of estafa, may still be held civilly liable where the
preponderance of the established facts so warrants.46 Wagas as the admitted drawer of the check
was legally liable to pay the amount of it to Ligaray, a holder in due course.47 Consequently, we
pronounce and hold him fully liable to pay the amount of the dishonored check, plus legal
interest of 6% per annum from the finality of this decision.

WHEREFORE, the Court REVERSES and SETS ASIDE the decision rendered on July 11, 2002
by the Regional Trial Court, Branch 58, in Cebu City; and ACQUITS Gilbert R. Wagas of the
crime of estafa on the ground of reasonable doubt, but ORDERS him to pay Alberto Ligaray the
amount of ₱200,000.00 as actual damages, plus interest of 6% per annum from the finality of this
decision.

No pronouncement on costs of suit.

SO ORDERED.
3.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 186228 March 15, 2010

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
ANTONIO LAUGA Y PINA ALIAS TERIO, Accused-Appellant.

DECISION

PEREZ, J.:

Before Us for final review is the trial court’s conviction of the appellant for the rape of his
thirteen-year old daughter.

Consistent with the ruling of this Court in People v. Cabalquinto,1 the real name and the personal
circumstances of the victim, and any other information tending to establish or compromise her
identity, including those of her immediate family or household members, are not disclosed in this
decision.

The Facts

In an Information dated 21 September 2000,2 the appellant was accused of the crime of
QUALIFIED RAPE allegedly committed as follows:

That on or about the 15th day of March 2000, in the evening, at Barangay xxx, municipality of
xxx, province of Bukidnon, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, being the father of AAA with lewd design, with the use of force and
intimidation, did then and there, willfully, unlawfully and criminally have carnal knowledge with
his own daughter AAA, a 13 year[s]old minor against her will.3

On 12 October 2000, appellant entered a plea of not guilty.4 During the pre-trial conference, the
prosecution and the defense stipulated and admitted: (a) the correctness of the findings indicated
in the medical certificate of the physician who examined AAA; (b) that AAA was only thirteen
(13) years old when the alleged offense was committed; and (c) that AAA is the daughter of the
appellant.5 On trial, three (3) witnesses testified for the prosecution, namely: victim AAA;6 her
brother BBB;7 and one Moises Boy Banting,8 a "bantay bayan" in the barangay. Their
testimonies revealed the following:

In the afternoon of 15 March 2000, AAA was left alone at home.9 AAA’s father, the appellant,
was having a drinking spree at the neighbor’s place.10 Her mother decided to leave because when
appellant gets drunk, he has the habit of mauling AAA’s mother.11 Her only brother BBB also
went out in the company of some neighbors.12

At around 10:00 o’clock in the evening, appellant woke AAA up;13 removed his pants, slid
inside the blanket covering AAA and removed her pants and underwear;14 warned her not to
shout for help while threatening her with his fist;15 and told her that he had a knife placed above
her head.16 He proceeded to mash her breast, kiss her repeatedly, and "inserted his penis inside
her vagina."17

Soon after, BBB arrived and found AAA crying.18 Appellant claimed he scolded her for staying
out late.19 BBB decided to take AAA with him.20 While on their way to their maternal
grandmother’s house, AAA recounted her harrowing experience with their father.21 Upon
reaching their grandmother’s house, they told their grandmother and uncle of the incident,22 after
which, they sought the assistance of Moises Boy Banting.23
Moises Boy Banting found appellant in his house wearing only his underwear.24 He invited
appellant to the police station,25 to which appellant obliged. At the police outpost, he admitted to
him that he raped AAA because he was unable to control himself.26

The following day, AAA submitted herself to physical examination.27 Dra. Josefa Arlita L.
Alsula, Municipal Health Officer of x x x, Bukidnon, issued the Medical Certificate, which
reads:

hyperemic vulvae with 4 o’clock & 6 o’clock freshly lacerated hymen; (+) minimal to moderate
bloody discharges 2° to an alleged raping incident28

On the other hand, only appellant testified for the defense. He believed that the charge against
him was ill-motivated because he sometimes physically abuses his wife in front of their children
after engaging in a heated argument,29and beats the children as a disciplinary measure.30 He went
further to narrate how his day was on the date of the alleged rape.

He alleged that on 15 March 2000, there was no food prepared for him at lunchtime.31 Shortly
after, AAA arrived.32She answered back when confronted.33 This infuriated him that he kicked
her hard on her buttocks.34

Appellant went back to work and went home again around 3 o’clock in the afternoon.35 Finding
nobody at home,36he prepared his dinner and went to sleep.37

Later in the evening, he was awakened by the members of the "Bantay Bayan" headed by Moises
Boy Banting.38They asked him to go with them to discuss some matters.39 He later learned that
he was under detention because AAA charged him of rape.40

On 8 July 2006, the Regional Trial Court, Branch 9, Malaybalay City, Bukidnon, rendered its
decision41 in Criminal Case No. 10372-0, finding appellant guilty of rape qualified by
relationship and minority, and sentenced him to suffer the penalty of reclusion perpetua.42 It also
ordered him to indemnify AAA ₱50,000.00 as moral damages, and ₱50,000.00 as civil
indemnity with exemplary damages of ₱25,000.00.43

On 30 September 2008, the decision of the trial court was AFFIRMED with
MODIFICATIONS44 by the Court of Appeals in CA-G.R. CR HC No. 00456-MIN.45 The
appellate court found that appellant is not eligible for parole and it increased both the civil
indemnity and moral damages from ₱50,000.00 to ₱75,000.00.46

On 24 November 2008, the Court of Appeals gave due course to the appellant’s notice of
appeal.47 This Court required the parties to simultaneously file their respective supplemental
briefs,48 but both manifested that they will no longer file supplemental pleadings.49

The lone assignment of error in the appellant’s brief is that, the trial court gravely erred in
finding him guilty as charged despite the failure of the prosecution to establish his guilt beyond
reasonable doubt,50 because: (1) there were inconsistencies in the testimonies of AAA and her
brother BBB;51 (2) his extrajudicial confession before Moises Boy Banting was without the
assistance of a counsel, in violation of his constitutional right;52 and (3) AAA’s accusation was
ill-motivated.53

Our Ruling

Appellant contests the admissibility in evidence of his alleged confession with a "bantay bayan"
and the credibility of the witnesses for the prosecution.

Admissibility in Evidence of an Extrajudicial Confession before a "Bantay Bayan"

Appellant argues that even if he, indeed, confessed to Moises Boy Banting, a "bantay bayan,"
the confession was inadmissible in evidence because he was not assisted by a lawyer and there
was no valid waiver of such requirement.54

The case of People v. Malngan55 is the authority on the scope of the Miranda doctrine provided
for under Article III, Section 12(1)56 and (3)57 of the Constitution. In Malngan, appellant
questioned the admissibility of her extrajudicial confessions given to the barangay chairman and
a neighbor of the private complainant. This Court distinguished. Thus:

Arguably, the barangay tanods, including the Barangay Chairman, in this particular instance,
may be deemed as law enforcement officer for purposes of applying Article III, Section 12(1)
and (3), of the Constitution. When accused-appellant was brought to the barangay hall in the
morning of 2 January 2001, she was already a suspect, actually the only one, in the fire that
destroyed several houses x x x. She was, therefore, already under custodial investigation and the
rights guaranteed by x x x [the] Constitution should have already been observed or applied to
her. Accused-appellant’s confession to Barangay Chairman x x x was made in response to the
‘interrogation’ made by the latter – admittedly conducted without first informing accused-
appellant of her rights under the Constitution or done in the presence of counsel. For this reason,
the confession of accused-appellant, given to Barangay Chairman x x x, as well as the lighter
found x x x in her bag are inadmissible in evidence against her x x x.1avvphi1

[But such does] not automatically lead to her acquittal. x x x [T]he constitutional safeguards
during custodial investigations do not apply to those not elicited through questioning by the
police or their agents but given in an ordinary manner whereby the accused verbally admits x x x
as x x x in the case at bar when accused-appellant admitted to Mercedita Mendoza, one of the
neighbors x x x [of the private complainant].58 (Emphasis supplied)

Following the rationale behind the ruling in Malngan, this Court needs to ascertain whether or
not a "bantay bayan" may be deemed a law enforcement officer within the contemplation of
Article III, Section 12 of the Constitution.

In People of the Philippines v. Buendia,59 this Court had the occasion to mention the nature of a
"bantay bayan," that is, "a group of male residents living in [the] area organized for the purpose
of keeping peace in their community[,which is] an accredited auxiliary of the x x x PNP."60

Also, it may be worthy to consider that pursuant to Section 1(g) of Executive Order No. 309
issued on 11 November 1987, as amended, a Peace and Order Committee in each barangay shall
be organized "to serve as implementing arm of the City/Municipal Peace and Order Council at
the Barangay level."61 The composition of the Committee includes, among others: (1)
the Punong Barangay as Chairman; (2) the Chairman of the Sangguniang Kabataan; (3) a
Member of the Lupon Tagapamayapa; (4) a Barangay Tanod; and (5) at least three (3) Members
of existing Barangay-Based Anti-Crime or neighborhood Watch Groups or a Non Government
Organization Representative well-known in his community.62

This Court is, therefore, convinced that barangay-based volunteer organizations in the nature of
watch groups, as in the case of the "bantay bayan," are recognized by the local government unit
to perform functions relating to the preservation of peace and order at the barangay level. Thus,
without ruling on the legality of the actions taken by Moises Boy Banting, and the specific scope
of duties and responsibilities delegated to a "bantay bayan," particularly on the authority to
conduct a custodial investigation, any inquiry he makes has the color of a state-related function
and objective insofar as the entitlement of a suspect to his constitutional rights provided for
under Article III, Section 12 of the Constitution, otherwise known as the Miranda Rights, is
concerned.

We, therefore, find the extrajudicial confession of appellant, which was taken without a counsel,
inadmissible in evidence.

Be that as it may, We agree with the Court of Appeals that the conviction of the appellant was
not deduced solely from the assailed extrajudicial confession but "from the confluence of
evidence showing his guilt beyond reasonable doubt."63

Credibility of the Witnesses for the Prosecution

Appellant assails the inconsistencies in the testimonies of AAA and her brother BBB. AAA
testified that BBB accompanied her to the house of their grandmother. Thereafter, they, together
with her relatives, proceeded to look for a "bantay bayan." On the other hand, BBB testified that
he brought her sister to the house of their "bantay bayan" after he learned of the incident.
Citing Bartocillo v. Court of Appeals,64 appellant argues that "where the testimonies of two key
witnesses cannot stand together, the inevitable conclusion is that one or both must be telling a lie,
and their story a mere concoction."65

The principle, however, is not applicable in the case at bar. In Bartocillo, the two testimonies
could not simply stand together because:

On one hand, if we are to believe Susan, Orlando could not have possibly seen the hacking
incident since he had accompanied Vicente home. On the other hand, if we are to accept the
testimony of Orlando, then Susan could not have possibly witnessed the hacking incident since
she was with Vicente at that time.

Here, the testimony of AAA does not run contrary to that of BBB. Both testified that they sought
the help of a "bantay bayan." Their respective testimonies differ only as to when the help was
sought for, which this Court could well attribute to the nature of the testimony of BBB, a
shortcut version of AAA’s testimony that dispensed with a detailed account of the incident.

At any rate, the Court of Appeals is correct in holding that the assailed inconsistency is too trivial
to affect the veracity of the testimonies.66 In fact, inconsistencies which refer to minor, trivial or
inconsequential circumstances even strengthen the credibility of the witnesses, as they erase
doubts that such testimonies have been coached or rehearsed.67

Appellant’s contention that AAA charged him of rape only because she bore grudges against him
is likewise unmeritorious. This Court is not dissuaded from giving full credence to the testimony
of a minor complainant by motives of feuds, resentment or revenge.68 As correctly pointed out
by the Court of Appeals:

Indeed, mere disciplinary chastisement is not strong enough to make daughters in a Filipino
family invent a charge that would not only bring shame and humiliation upon them and their
families but also bring their fathers into the gallows of death.69 The Supreme Court has
repeatedly held that it is unbelievable for a daughter to charge her own father with rape, exposing
herself to the ordeal and embarrassment of a public trial and subjecting her private parts to
examination if such heinous crime was not in fact committed.70 No person, much less a woman,
could attain such height of cruelty to one who has sired her, and from whom she owes her very
existence, and for which she naturally feels loving and lasting gratefulness.71 Even when
consumed with revenge, it takes a certain amount of psychological depravity for a young woman
to concoct a story which would put her own father to jail for the most of his remaining life and
drag the rest of the family including herself to a lifetime of shame.72 It is highly improbable for
[AAA] against whom no proof of sexual perversity or loose morality has been shown to fake
charges much more against her own father. In fact her testimony is entitled to greater weight
since her accusing words were directed against a close relative.73

Elements of Rape

Having established the credibility of the witnesses for the prosecution, We now examine the
applicability of the Anti-Rape Law of 199774 to the case at bar.

The law provides, in part, that rape is committed, among others, "[b]y a man who shall have
carnal knowledge of a woman" "through force, threat or intimidation."75 The death penalty shall
be imposed if it is committed with aggravating/qualifying circumstances, which include, "[w]hen
the victim is under eighteen (18) years of age and the offender is a parent."76

The consistent and forthright testimony of AAA detailing how she was raped, culminating with
the penetration of appellant’s penis into her vagina, suffices to prove that appellant had carnal
knowledge of her. When a woman states that she has been raped, she says in effect all that is
necessary to show that rape was committed.77 Further, when such testimony corresponds with
medical findings, there is sufficient basis to conclude that the essential requisites of carnal
knowledge have been established.78

The Court of Appeals pointed out that the element of force or intimidation is not essential when
the accused is the father of the victim, inasmuch as his superior moral ascendancy or influence
substitutes for violence and intimidation.79 At any rate, AAA was actually threatened by
appellant with his fist and a knife allegedly placed above AAA’s head.80

It may be added that the self-serving defense of appellant cannot prevail over the positive and
straightforward testimony of AAA. Settled is the rule that, "alibi is an inherently weak defense
that is viewed with suspicion because it is easy to fabricate."81 "Alibi and denial must be
supported by strong corroborative evidence in order to merit credibility."82 Moreover, for the
defense of alibi to prosper, the accused must establish two elements – (1) he was not at the locus
delicti at the time the offense was committed; and (2) it was physically impossible for him to be
at the scene at the time of its commission.83 Appellant failed in this wise.

Aggravating/Qualifying Circumstances

The presence of the qualifying circumstances of minority and relationship with the offender in
the instant case has likewise been adequately established. Both qualifying circumstances were
specifically alleged in the Information, stipulated on and admitted during the pre-trial
conference, and testified to by both parties in their respective testimonies. Also, such stipulation
and admission, as correctly pointed out by the Court of Appeals, are binding upon this Court
because they are judicial admissions within the contemplation of Section 4, Rule 129 of the
Revised Rules of Court. It provides:

Sec. 4. Judicial admissions. - An admission, verbal or written, made by a party in the course of
the proceedings in the same case, does not require proof. The admission may be contradicted
only by showing that it was made through palpable mistake or that no such admission was made.

Penalty

Finally, in increasing the amount of civil indemnity and damages each from ₱50,000.00 to
₱75,000.00, the Court of Appeals correctly considered controlling jurisprudence to the effect that
where, as here, the rape is committed with any of the qualifying/aggravating circumstances
warranting the imposition of the death penalty, the victim is entitled to ₱75,000.00 as civil
indemnity ex delicto84 and ₱75,000.00 as moral damages.85 However, the award of exemplary
damages should have been increased from ₱25,000.00 to ₱30,000.00.86 Also, the penalty of
reclusion perpetua in lieu of death was correctly imposed considering that the imposition of the
death penalty upon appellant would have been appropriate were it not for the enactment of
Republic Act No. 9346, or An Act Prohibiting the Imposition of Death Penalty in the
Philippines.87 We further affirm the ruling of the Court of Appeals on appellant’s non-eligibility
for parole. Sec. 3 of Republic Act No. 9346 clearly provides that "persons convicted of offenses
punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua by
reason of the law, shall not be eligible for parole."

WHEREFORE, the Decision of the Court of Appeals dated 30 September 2008 in CA-G.R. CR
HC No. 00456-MIN is hereby AFFIRMED. Appellant Antonio Lauga is GUILTY beyond
reasonable doubt of qualified rape, and is hereby sentenced to suffer the penalty of reclusion
perpetua without eligibility for parole and to pay AAA ₱75,000.00 as civil indemnity,
₱75,000.00 as moral damages, and ₱30,000.00 as exemplary damages.

SO ORDERED.
4.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 155208 March 27, 2007

NENA LAZALITA* TATING, Petitioner,

vs.
FELICIDAD TATING MARCELLA, represented by SALVADOR MARCELLA, CARLOS
TATING, and the COURT OF APPEALS, Respondents.

DECISION

AUSTRIA-MARTINEZ, J.:

Assailed in the Special Civil Action for Certiorari before the Court are the Decision1 dated
February 22, 2002 and the Resolution dated August 22, 2002 of the Court of Appeals (CA) in
CA-G.R. CV No. 64122, which affirmed the Decision2 of the Regional Trial Court (RTC) of
Cadiz City, Negros Occidental, Branch 60.

The present case arose from a controversy involving a parcel of land denominated as Lot 56 of
Subdivision plan Psd-31182, located at Abelarde St., Cadiz City, Negros Occidental. The subject
lot, containing an area of 200 square meters, was owned by Daniela Solano Vda. de Tating
(Daniela) as evidenced by Transfer Certificate of Title (TCT) No. T-4393 issued by the Registry
of Deeds of the City of Cadiz.3

On October 14, 1969, Daniela sold the subject property to her granddaughter, herein petitioner
Nena Lazalita Tating (Nena). The contract of sale was embodied in a duly notarized Deed of
Absolute Sale executed by Daniela in favor of Nena.4 Subsequently, title over the subject
property was transferred in the name of Nena.5 She declared the property in her name for tax
purposes and paid the real estate taxes due thereon for the years 1972, 1973, 1975 to 1986 and
1988.6 However, the land remained in possession of Daniela.

On December 28, 1977, Daniela executed a sworn statement claiming that she had actually no
intention of selling the property; the true agreement between her and Nena was simply to transfer
title over the subject property in favor of the latter to enable her to obtain a loan by mortgaging
the subject property for the purpose of helping her defray her business expenses; she later
discovered that Nena did not secure any loan nor mortgage the property; she wants the title in the
name of Nena cancelled and the subject property reconveyed to her.7

Daniela died on July 29, 19888 leaving her children as her heirs, namely: Ricardo, Felicidad,
Julio, Carlos and Cirilo who predeceased Daniela and was represented by herein petitioner.

In a letter dated March 1, 1989, Carlos informed Nena that when Daniela died they discovered
the sworn statement she executed on December 28, 1977 and, as a consequence, they are
demanding from Nena the return of their rightful shares over the subject property as heirs of
Daniela.9 Nena did not reply. Efforts to settle the case amicably proved futile.

Hence, on September 6, 1989, Carlos and Felicidad, represented by her son Salvador, filed a
complaint with the RTC of Cadiz City, Negros Occidental against Nena praying for the
nullification of the Deed of Absolute Sale executed by Daniela in her favor, cancellation of the
TCT issued in the name of Nena, and issuance of a new title and tax declaration in favor of the
heirs of Daniela.10 The complaint also prayed for the award of moral and exemplary damages as
well as attorney’s fees and litigation expenses. On March 19, 1993, the plaintiffs filed an
amended complaint with leave of court for the purpose of excluding Ricardo as a party plaintiff,
he having died intestate and without issue in March 1991.11 He left Carlos, Felicidad, Julio, and
Nena as his sole heirs.
In her Answer, Nena denied that any fraud or misrepresentation attended the execution of the
subject Deed of Absolute Sale. She also denied having received the letter of her uncle, Carlos.
She prayed for the dismissal of the complaint, and in her counterclaim, she asked the trial court
for the award of actual, exemplary and moral damages as well as attorney’s fees and litigation
expenses.12

Trial ensued. On November 4, 1998, the RTC rendered judgment with the following dispositive
portion:

WHEREFORE, in view of all the foregoing, judgment is hereby rendered in favor of the
plaintiffs and against the defendant, and hereby declaring the document of sale dated October 14,
1969 (Exh. "Q") executed between Daniela Solano Vda. de Tating and Nena Lazalita Tating as
NULL and VOID and further ordering:

1. The Register of Deeds of Cadiz City to cancel TCT No. 5975 and in lieu thereof to
issue a new title in the names of Carlos Tating, Pro-indiviso owner of one-fourth (¼)
portion of the property; Felicidad Tating Marcella, Pro-indiviso owner of one-fourth (¼)
portion; Julio Tating, Pro-indiviso owner of one-fourth (¼) portion and Nena Lazalita
Tating, Pro-indiviso owner of one-fourth (¼) portion, all of lot 56 after payment of the
prescribed fees;

2. The City Assessor of the City of Cadiz to cancel Tax Declaration No. 143-00672 and
in lieu thereof issue a new Tax Declaration in the names of Carlos Tating, ¼ Pro-indiviso
portion; Felicidad Tating Marcella, ¼ Pro-indiviso portion; Julio Tating, ¼ Pro-indiviso
portion; and Nena Lazalita Tating, ¼ Pro-indiviso portion, all of lot 56 as well as the
house standing thereon be likewise declared in the names of the persons mentioned in the
same proportions as above-stated after payment of the prescribed fees;

3. The defendant is furthermore ordered to pay plaintiffs the sum of ₱20,000.00 by way
of moral damages, ₱10,000.00 by way of exemplary damages, ₱5,000.00 by way of
attorney’s fees and ₱3,000.00 by way of litigation expenses; and to

4. Pay the costs of suit.

SO ORDERED.13

Nena filed an appeal with the CA. On February 22, 2002, the CA rendered its Decision affirming
the judgment of the RTC.14

Nena’s Motion for Reconsideration was denied by the CA in its Resolution dated August 22,
2002.15

Hence, herein petition for certiorari anchored on the ground that the CA "has decided the instant
case without due regard to and in violation of the applicable laws and Decisions of this
Honorable Court and also because the Decision of the Regional Trial Court, which it has
affirmed, is not supported by and is even against the evidence on record."16

At the outset, it must be stated that the filing of the instant petition for certiorari under Rule 65
of the Rules of Court is inappropriate. Considering that the assailed Decision and Resolution of
the CA finally disposed of the case, the proper remedy is a petition for review under Rule 45 of
the Rules of Court.

The Court notes that while the instant petition is denominated as a Petition for Certiorari under
Rule 65 of the Rules of Court, there is no allegation that the CA committed grave abuse of
discretion. On the other hand, the petition actually avers errors of judgment, rather than of
jurisdiction, which are the proper subjects of a petition for review on certiorari. Hence, in
accordance with the liberal spirit pervading the Rules of Court and in the interest of justice, the
Court decided to treat the present petition for certiorari as having been filed under Rule 45,
especially considering that it was filed within the reglementary period for filing the same.17

As to the merits of the case, petitioner contends that the case for the private respondents rests on
the proposition that the Deed of Absolute Sale dated October 14, 1969 is simulated because
Daniela’s actual intention was not to dispose of her property but simply to help petitioner by
providing her with a collateral. Petitioner asserts that the sole evidence which persuaded both the
RTC and the CA in holding that the subject deed was simulated was the Sworn Statement of
Daniela dated December 28, 1977. However, petitioner argues that said Sworn Statement should
have been rejected outright by the lower courts considering that Daniela has long been dead
when the document was offered in evidence, thereby denying petitioner the right to cross-
examine her.

Petitioner also contends that while the subject deed was executed on October 14, 1969, the
Sworn Statement was purportedly executed only on December 28, 1977 and was discovered only
after the death of Daniela in 1994.18Petitioner argues that if the deed of sale is indeed simulated,
Daniela would have taken action against the petitioner during her lifetime. However, the fact
remains that up to the time of her death or almost 20 years after the Deed of Absolute Sale was
executed, she never uttered a word of complaint against petitioner.

Petitioner further asserts that the RTC and the CA erred in departing from the doctrine held time
and again by the Supreme Court that clear, strong and convincing evidence beyond mere
preponderance is required to show the falsity or nullity of a notarial document. Petitioner also
argues that the RTC and the CA erred in its pronouncement that the transaction between Daniela
and petitioner created a trust relationship between them because of the settled rule that where the
terms of a contract are clear, it should be given full effect.

In their Comment and Memorandum, private respondents contend that petitioner failed to show
that the CA or the RTC committed grave abuse of discretion in arriving at their assailed
judgments; that Daniela’s Sworn Statement is sufficient evidence to prove that the contract of
sale by and between her and petitioner was merely simulated; and that, in effect, the agreement
between petitioner and Daniela created a trust relationship between them.

The Court finds for the petitioner.

The CA and the trial court ruled that the contract of sale between petitioner and Daniela is
simulated. A contract is simulated if the parties do not intend to be bound at all (absolutely
simulated) or if the parties conceal their true agreement (relatively simulated).19 The primary
consideration in determining the true nature of a contract is the intention of the parties.20 Such
intention is determined from the express terms of their agreement as well as from their
contemporaneous and subsequent acts.21

In the present case, the main evidence presented by private respondents in proving their
allegation that the subject deed of sale did not reflect the true intention of the parties thereto is
the sworn statement of Daniela dated December 28, 1977. The trial court admitted the said sworn
statement as part of private respondents’ evidence and gave credence to it. The CA also accorded
great probative weight to this document.

There is no issue in the admissibility of the subject sworn statement. However, the admissibility
of evidence should not be equated with weight of evidence.22 The admissibility of evidence
depends on its relevance and competence while the weight of evidence pertains to evidence
already admitted and its tendency to convince and persuade.23Thus, a particular item of evidence
may be admissible, but its evidentiary weight depends on judicial evaluation within the
guidelines provided by the rules of evidence.24 It is settled that affidavits are classified as hearsay
evidence since they are not generally prepared by the affiant but by another who uses his own
language in writing the affiant’s statements, which may thus be either omitted or misunderstood
by the one writing them.25 Moreover, the adverse party is deprived of the opportunity to cross-
examine the affiant.26 For this reason, affidavits are generally rejected for being hearsay, unless
the affiants themselves are placed on the witness stand to testify thereon.27 The Court finds that
both the trial court and the CA committed error in giving the sworn statement probative weight.
Since Daniela is no longer available to take the witness stand as she is already dead, the RTC and
the CA should not have given probative value on Daniela’s sworn statement for purposes of
proving that the contract of sale between her and petitioner was simulated and that, as a
consequence, a trust relationship was created between them.

Private respondents should have presented other evidence to sufficiently prove their allegation
that Daniela, in fact, had no intention of disposing of her property when she executed the subject
deed of sale in favor of petitioner. As in all civil cases, the burden is on the plaintiff to prove the
material allegations of his complaint and he must rely on the strength of his evidence and not on
the weakness of the evidence of the defendant.28 Aside from Daniela’s sworn statement, private
respondents failed to present any other documentary evidence to prove their claim. Even the
testimonies of their witnesses failed to establish that Daniela had a different intention when she
entered into a contract of sale with petitioner.

In Suntay v. Court of Appeals,29 the Court ruled that the most protuberant index of simulation is
the complete absence, on the part of the vendee, of any attempt in any manner to assert his rights
of ownership over the disputed property.30 In the present case, however, the evidence clearly
shows that petitioner declared the property for taxation and paid realty taxes on it in her name.
Petitioner has shown that from 1972 to 1988 she religiously paid the real estate taxes due on the
said lot and that it was only in 1974 and 1987 that she failed to pay the taxes thereon. While tax
receipts and declarations and receipts and declarations of ownership for taxation purposes are
not, in themselves, incontrovertible evidence of ownership, they constitute at least proof that the
holder has a claim of title over the property.31 The voluntary declaration of a piece of property
for taxation purposes manifests not only one’s sincere and honest desire to obtain title to the
property and announces his adverse claim against the State and all other interested parties, but
also the intention to contribute needed revenues to the Government.32 Such an act strengthens
one’s bona fide claim of acquisition of ownership.33 On the other hand, private respondents
failed to present even a single tax receipt or declaration showing that Daniela paid taxes due on
the disputed lot as proof that she claims ownership thereof. The only Tax Declaration in the
name of Daniela, which private respondents presented in evidence, refers only to the house
standing on the lot in controversy.34 Even the said Tax Declaration contains a notation that herein
petitioner owns the lot (Lot 56) upon which said house was built.

Moreover, the Court agrees with petitioner that if the subject Deed of Absolute Sale did not
really reflect the real intention of Daniela, why is it that she remained silent until her death; she
never told any of her relatives regarding her actual purpose in executing the subject deed; she
simply chose to make known her true intentions through the sworn statement she executed on
December 28, 1977, the existence of which she kept secret from her relatives; and despite her
declaration therein that she is appealing for help in order to get back the subject lot, she never
took any concrete step to recover the subject property from petitioner until her death more than
ten years later.

It is true that Daniela retained physical possession of the property even after she executed the
subject Absolute Deed of Sale and even after title to the property was transferred in petitioner’s
favor. In fact, Daniela continued to occupy the property in dispute until her death in 1988 while,
in the meantime, petitioner continued to reside in Manila. However, it is well-established that
ownership and possession are two entirely different legal concepts.35Just as possession is not a
definite proof of ownership, neither is non-possession inconsistent with ownership. The first
paragraph of Article 1498 of the Civil Code states that when the sale is made through a public
instrument, the execution thereof shall be equivalent to the delivery of the thing which is the
object of the contract, if from the deed the contrary does not appear or cannot clearly be inferred.
Possession, along with ownership, is transferred to the vendee by virtue of the notarized deed of
conveyance.36 Thus, in light of the circumstances of the present case, it is of no legal
consequence that petitioner did not take actual possession or occupation of the disputed property
after the execution of the deed of sale in her favor because she was already able to perfect and
complete her ownership of and title over the subject property.

As to Daniela’s affidavit dated June 9, 1983, submitted by petitioner, which confirmed the
validity of the sale of the disputed lot in her favor, the same has no probative value, as the sworn
statement earlier adverted to, for being hearsay. Naturally, private respondents were not able to
cross-examine the deceased-affiant on her declarations contained in the said affidavit.

However, even if Daniela’s affidavit of June 9, 1983 is disregarded, the fact remains that private
respondents failed to prove by clear, strong and convincing evidence beyond mere
preponderance of evidence37 that the contract of sale between Daniela and petitioner was
simulated. The legal presumption is in favor of the validity of contracts and the party who
impugns its regularity has the burden of proving its simulation.38 Since private respondents failed
to discharge the burden of proving their allegation that the contract of sale between petitioner
and Daniela was simulated, the presumption of regularity and validity of the October 14, 1969
Deed of Absolute Sale stands.

Considering that the Court finds the subject contract of sale between petitioner and Daniela to be
valid and not fictitious or simulated, there is no more necessity to discuss the issue as to whether
or not a trust relationship was created between them.

WHEREFORE, the petition is GRANTED. The assailed Decision and Resolution of the Court of
Appeals in CA-G.R. CV No. 64122, affirming the Decision of the Regional Trial Court of Cadiz
City, Negros Occidental, Branch 60, in Civil Case No. 278-C, are REVERSED AND SET
ASIDE. The complaint of the private respondents is DISMISSED.

No costs.

SO ORDERED.
5.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 107518 October 8, 1998

PNOC SHIPPING AND TRANSPORT CORPORATION, petitioner,

vs.
HONORABLE COURT OF APPEALS and MARIA EFIGENIA FISHING
CORPORATION, respondents.

ROMERO, J.:

A party is entitled to adequate compensation only for such pecuniary loss actually suffered and
duly proved.1Indeed, basic is the rule that to recover actual damages, the amount of loss must not
only be capable of proof but must actually be proven with a reasonable degree of certainty,
premised upon competent proof or best evidence obtainable of the actual amount thereof.2 The
claimant is duty-bound to point out specific facts that afford a basis for measuring whatever
compensatory damages are borne.3 A court cannot merely rely on speculations, conjectures, or
guesswork as to the fact and amount of damages4 as well as hearsay5or uncorroborated testimony
whose truth is suspect.6 Such are the jurisprudential precepts that the Court now applies in
resolving the instant petition.

The records disclose that in the early morning of September 21, 1977, the M/V Maria Efigenia
XV, owned by private respondent Maria Efigenia Fishing Corporation, was navigating the waters
near Fortune Island in Nasugbu, Batangas on its way to Navotas, Metro Manila when it collided
with the vessel Petroparcel which at the time was owned by the Luzon Stevedoring Corporation
(LSC).

After investigation was conducted by the Board of Marine Inquiry, Philippine Coast Guard
Commandant Simeon N. Alejandro rendered a decision finding the Petroparcel at fault. Based
on this finding by the Board and after unsuccessful demands on petitioner, 7 private respondent
sued the LSC and the Petroparcelcaptain, Edgardo Doruelo, before the then Court of First
Instance of Caloocan City, paying thereto the docket fee of one thousand two hundred fifty-two
pesos (P1,252.00) and the legal research fee of two pesos (P2.00). 8 In particular, private
respondent prayed for an award of P692,680.00, allegedly representing the value of the fishing
nets, boat equipment and cargoes of M/V Maria Efigenia XV, with interest at the legal rate plus
25% thereof as attorney's fees. Meanwhile, during the pendency of the case, petitioner PNOC
Shipping and Transport Corporation sought to be substituted in place of LSC as it had already
acquired ownership of the Petroparcel. 9

For its part, private respondent later sought the amendment of its complaint on the ground that
the original complaint failed to plead for the recovery of the lost value of the hull of M/V Maria
Efigenia XV. 10Accordingly, in the amended complaint, private respondent averred that M/V
Maria Efigenia XV had an actual value of P800,000.00 and that, after deducting the insurance
payment of P200,000.00, the amount of P600,000.00 should likewise be claimed. The amended
complaint also alleged that inflation resulting from the devaluation of the Philippine peso had
affected the replacement value of the hull of the vessel, its equipment and its lost cargoes, such
that there should be a reasonable determination thereof. Furthermore, on account of the sinking
of the vessel, private respondent supposedly incurred unrealized profits and lost business
opportunities that would thereafter be proven. 11

Subsequently, the complaint was further amended to include petitioner as a defendant 12 which
the lower court granted in its order of September 16,
1985. 13 After petitioner had filed its answer to the second amended complaint, on February 5,
1987, the lower court issued a pre-trial order 14 containing, among other things, a stipulations of
facts, to wit:

1. On 21 September 1977, while the fishing boat "M/V MARIA EFIGENIA"

owned by plaintiff was navigating in the vicinity of Fortune Island in Nasugbu,
Batangas, on its way to Navotas, Metro Manila, said fishing boat was hit by the
LSCO tanker "Petroparcel" causing the former to sink.

2. The Board of Marine Inquiry conducted an investigation of this marine

accident and on 21 November 1978, the Commandant of the Philippine Coast
Guard, the Honorable Simeon N. Alejandro, rendered a decision finding the cause
of the accident to be the reckless and imprudent manner in which Edgardo
Doruelo navigated the LSCO "Petroparcel" and declared the latter vessel at fault.

3. On 2 April 1978, defendant Luzon Stevedoring Corporation (LUSTEVECO),

executed in favor of PNOC Shipping and Transport Corporation a Deed of
Transfer involving several tankers, tugboats, barges and pumping stations, among
which was the LSCO Petroparcel.

4. On the same date on 2 April 1979 (sic), defendant PNOC STC again entered
into an Agreement of Transfer with co-defendant Lusteveco whereby all the
business properties and other assets appertaining to the tanker and bulk oil
departments including the motor tanker LSCO Petroparcel of defendant
Lusteveco were sold to PNOC STC.

5. The aforesaid agreement stipulates, among others, that PNOC-STC assumes,

without qualifications, all obligations arising from and by virtue of all rights it
obtained over the LSCO "Petroparcel".

6. On 6 July 1979, another agreement between defendant LUSTEVECO and

PNOC-STC was executed wherein Board of Marine Inquiry Case No. 332
(involving the sea accident of 21 September 1977) was specifically identified and
assumed by the latter.

7. On 23 June 1979, the decision of Board of Marine Inquiry was affirmed by the
Ministry of National Defense, in its decision dismissing the appeal of Capt.
Edgardo Doruelo and Chief mate Anthony Estenzo of LSCO "Petroparcel".

8. LSCO "Petroparcel" is presently owned and operated by PNOC-STC and

likewise Capt. Edgardo Doruelo is still in their employ.

9. As a result of the sinking of M/V Maria Efigenia caused by the reckless and
imprudent manner in which LSCO Petroparcel was navigated by defendant
Doruelo, plaintiff suffered actual damages by the loss of its fishing nets, boat
equipments (sic) and cargoes, which went down with the ship when it sank the
replacement value of which should be left to the sound discretion of this
Honorable Court.

After trial, the lower court 15 rendered on November 18, 1989 its decision disposing of Civil
Case No. C-9457 as follows:

WHEREFORE, and in view of the foregoing, judgment is hereby rendered in

favor of the plaintiff and against the defendant PNOC Shipping & Transport
Corporation, to pay the plaintiff:

a. The sum of P6,438,048.00 representing the value of the fishing

boat with interest from the date of the filing of the complaint at the
rate of 6% per annum;

b. The sum of P50,000.00 as and for attorney's fees; and

 c. The costs of suit.

The counterclaim is hereby DISMISSED for lack of merit. Likewise, the case
against defendant Edgardo Doruelo is hereby DISMISSED, for lack of
jurisdiction.

SO ORDERED.

In arriving at the above disposition, the lower court cited the evidence presented by private
respondent consisting of the testimony of its general manager and sole witness, Edilberto del
Rosario. Private respondent's witness testified that M/V Maria Efigenia XV was owned by private
respondent per Exhibit A, a certificate of ownership issued by the Philippine Coast Guard
showing that M/V Maria Efigenia XV was a wooden motor boat constructed in 1965 with 128.23
gross tonnage. According to him, at the time the vessel sank, it was then carrying 1,060 tubs
(bañeras) of assorted fish the value of which was never recovered. Also lost with the vessel were
two cummins engines (250 horsepower), radar, pathometer and compass. He further added that
with the loss of his flagship vessel in his fishing fleet of fourteen (14) vessels, he was constrained
to hire the services of counsel whom he paid P10,000 to handle the case at the Board of Marine
Inquiry and P50,000.00 for commencing suit for damages in the lower court.

As to the award of P6,438,048.00 in actual damages, the lower court took into account the
following pieces of documentary evidence that private respondent proffered during trial:

(a) Exhibit A — certified xerox copy of the certificate of

ownership of M/V Maria Efigenia XV;

(b) Exhibit B — a document titled "Marine Protest" executed by

Delfin Villarosa, Jr. on September 22, 1977 stating that as a result
of the collision, the M/V Maria Efigenia XV sustained a hole at its
left side that caused it to sink with its cargo of
1,050 bañeras valued at P170,000.00;

(c) Exhibit C — a quotation for the construction of a 95-footer

trawler issued by Isidoro A. Magalong of I. A. Magalong
Engineering and Construction on January 26, 1987 to Del Rosario
showing that construction of such trawler would cost
P2,250,000.00;

(d) Exhibit D — pro forma invoice No. PSPI-05/87-NAV issued

by E.D. Daclan of Power Systems, Incorporated on January 20,
1987 to Del Rosario showing that two (2) units of CUMMINS
Marine Engine model N855-M, 195 bhp. at 1800 rpm. would cost
P1,160,000.00;

(e) Exhibit E — quotation of prices issued by Scan Marine Inc. on

January 20, 1987 to Del Rosario showing that a unit of Furuno
Compact Daylight Radar, Model FR-604D, would cost
P100,000.00 while a unit of Furuno Color Video Sounder, Model
FCV-501 would cost P45,000.00 so that the two units would cost
P145,000.00;

(f) Exhibit F — quotation of prices issued by Seafgear Sales, Inc.

on January 21, 1987 to Del Rosario showing that two (2) rolls of
nylon rope (5" cir. X 300fl.) would cost P140,000.00; two (2) rolls
of nylon rope (3" cir. X 240fl.), P42,750.00; one (1) binocular (7 x
50), P1,400.00, one (1) compass (6"), P4,000.00 and 50 pcs. of
floats, P9,000.00 or a total of P197,150.00;

(g) Exhibit G — retainer agreement between Del Rosario and F.

Sumulong Associates Law Offices stipulating an acceptance fee of
P5,000.00, per appearance fee of P400.00, monthly retainer of
P500.00, contingent fee of 20% of the total amount recovered and
 that attorney's fee to be awarded by the court should be given to
Del Rosario; and

(h) Exhibit H — price quotation issued by Seafgear Sales, Inc.

dated April 10, 1987 to Del Rosario showing the cost of poly
nettings as: 50 rolls of 400/18 3kts. 100md x 100mtrs., P70,000.00;
50 rolls of 400/18 5kts. 100md x 100mtrs., P81,500.00; 50 rolls of
400/18 8kts. 100md x 100mtrs., P116,000.00, and 50 rolls of
400/18 10kts. 100md x 100mtrs., P146,500 and bañera (tub) at
P65.00 per piece or a total of P414,065.00.

The lower court held that the prevailing replacement value of P6,438,048.00 of the fishing boat
and all its equipment would regularly increase at 30% every year from the date the quotations
were given.

On the other hand, the lower court noted that petitioner only presented Lorenzo Lazaro, senior
estimator at PNOC Dockyard & Engineering Corporation, as sole witness and it did not bother at
all to offer any documentary evidence to support its position. Lazaro testified that the price
quotations submitted by private respondent were "excessive" and that as an expert witness, he
used the quotations of his suppliers in making his estimates. However, he failed to present such
quotations of prices from his suppliers, saying that he could not produce a breakdown of the
costs of his estimates as it was "a sort of secret scheme." For this reason, the lower court
concluded:

Evidently, the quotation of prices submitted by the plaintiff relative to the

replacement value of the fishing boat and its equipments in the tune of
P6,438,048.00 which were lost due to the recklessness and imprudence of the
herein defendants were not rebutted by the latter with sufficient evidence. The
defendants through their sole witness Lorenzo Lazaro relied heavily on said
witness' bare claim that the amount afore-said is excessive or bloated, but they did
not bother at all to present any documentary evidence to substantiate such claim.
Evidence to be believed must not only proceed from the mouth of the credible
witness, but it must be credible in itself. (Vda. de Bonifacio vs. B. L. T. Bus Co.,
Inc. L-26810, August 31, 1970).

Aggrieved, petitioner filed a motion for the reconsideration of the lower court's decision
contending that: (1) the lower court erred in holding it liable for damages; that the lower court
did not acquire jurisdiction over the case by paying only P1,252.00 as docket fee; (2) assuming
that plaintiff was entitled to damages, the lower court erred in awarding an amount greater than
that prayed for in the second amended complaint; and (3) the lower court erred when it failed to
resolve the issues it had raised in its memorandum. 16Petitioner likewise filed a supplemental
motion for reconsideration expounding on whether the lower court acquired jurisdiction over the
subject matter of the case despite therein plaintiff's failure to pay the prescribed docket fee. 17

On January 25, 1990, the lower court declined reconsideration for lack of merit. 18 Apparently
not having received the order denying its motion for reconsideration, petitioner still filed a
motion for leave to file a reply to private respondent's opposition to said motion. 19 Hence, on
February 12, 1990, the lower court denied said motion for leave to file a reply on the ground that
by the issuance of the order of January 25, 1990, said motion had become moot and academic. 20

Unsatisfied with the lower court's decision, petitioner elevated the matter to the Court of Appeals
which, however, affirmed the same in toto on October 14, 1992. 21 On petitioner's assertion that
the award of P6,438,048.00 was not convincingly proved by competent and admissible evidence,
the Court of Appeals ruled that it was not necessary to qualify Del Rosario as an expert witness
because as the owner of the lost vessel, "it was well within his knowledge and competency to
identify and determine the equipment installed and the cargoes loaded" on the vessel.
Considering the documentary evidence presented as in the nature of market reports or quotations,
trade journals, trade circulars and price lists, the Court of Appeals held, thus:

Consequently, until such time as the Supreme Court categorically rules on the
admissibility or inadmissibility of this class of evidence, the reception of these
documentary exhibits (price quotations) as evidence rests on the sound discretion
 of the trial court. In fact, where the lower court is confronted with evidence which
appears to be of doubtful admissibility, the judge should declare in favor of
admissibility rather than of non-admissibility (The Collector of Palakadhari, 124
[1899], p. 13, cited in Francisco, Revised Rules of Court, Evidence, Volume VII,
Part I, 1990 Edition, p. 18). Trial courts are enjoined to observe the strict
enforcement of the rules of evidence which crystallized through constant use and
practice and are very useful and effective aids in the search for truth and for the
effective administration of justice. But in connection with evidence which may
appear to be of doubtful relevancy or incompetency or admissibility, it is the
safest policy to be liberal, not rejecting them on doubtful or technical grounds,
but admitting them unless plainly irrelevant, immaterial or incompetent, for the
reason that their rejection places them beyond the consideration of the court. If
they are thereafter found relevant or competent, can easily be remedied by
completely discarding or ignoring them. (Banaria vs. Banaria, et al., C.A. No.
4142, May 31, 1950; cited in Francisco, Supra). [Emphasis supplied].

Stressing that the alleged inadmissible documentary exhibits were never satisfactorily rebutted
by appellant's own sole witness in the person of Lorenzo Lazaro, the appellate court found that
petitioner ironically situated itself in an "inconsistent posture by the fact that its own witness,
admittedly an expert one, heavily relies on the very same pieces of evidence (price quotations)
appellant has so vigorously objected to as inadmissible evidence." Hence, it concluded:

. . . The amount of P6,438,048.00 was duly established at the trial on the basis of
appellee's documentary exhibits (price quotations) which stood uncontroverted,
and which already included the amount by way of adjustment as prayed for in the
amended complaint. There was therefore no need for appellee to amend the
second amended complaint in so far as to the claim for damages is concerned to
conform with the evidence presented at the trial. The amount of P6,438,048.00
awarded is clearly within the relief prayed for in appellee's second amended
complaint.

On the issue of lack of jurisdiction, the respondent court held that following the ruling in Sun
Insurance Ltd. v. Asuncion, 22 the additional docket fee that may later on be declared as still
owing the court may be enforced as a lien on the judgment.

Hence, the instant recourse.

In assailing the Court of Appeals' decision, petitioner posits the view that the award of
P6,438,048 as actual damages should have been in light of these considerations, namely: (1) the
trial court did not base such award on the actual value of the vessel and its equipment at the time
of loss in 1977; (2) there was no evidence on extraordinary inflation that would warrant an
adjustment of the replacement cost of the lost vessel, equipment and cargo; (3) the value of the
lost cargo and the prices quoted in respondent's documentary evidence only amount to
P4,336,215.00; (4) private respondent's failure to adduce evidence to support its claim for
unrealized profit and business opportunities; and (5) private respondent's failure to prove the
extent and actual value of damages sustained as a result of the 1977 collision of the vessels. 23

Under Article 2199 of the Civil Code, actual or compensatory damages are those awarded in
satisfaction of, or in recompense for, loss or injury sustained. They proceed from a sense of
natural justice and are designed to repair the wrong that has been done, to compensate for the
injury inflicted and not to impose a penalty. 24 In actions based on torts or quasi-delicts, actual
damages include all the natural and probable consequences of the act or omission complained
of. 25 There are two kinds of actual or compensatory damages: one is the loss of what a person
already possesses (daño emergente), and the other is the failure to receive as a benefit that which
would have pertained to him (lucro cesante). 26 Thus:

Where goods are destroyed by the wrongful act of the defendant the plaintiff is
entitled to their value at the time of destruction, that is, normally, the sum of
money which he would have to pay in the market for identical or essentially
similar goods, plus in a proper case damages for the loss of use during the period
before replacement. In other words, in the case of profit-earning chattels, what has
to be assessed is the value of the chattel to its owner as a going concern at the
 time and place of the loss, and this means, at least in the case of ships, that regard
must be had to existing and pending engagements, . . .

. . . . If the market value of the ship reflects the fact that it is in any case virtually
certain of profitable employment, then nothing can be added to that value in
respect of charters actually lost, for to do so would be pro tanto to compensate the
plaintiff twice over. On the other hand, if the ship is valued without reference to
its actual future engagements and only in the light of its profit-earning
potentiality, then it may be necessary to add to the value thus assessed the
anticipated profit on a charter or other engagement which it was unable to fulfill.
What the court has to ascertain in each case is the "capitalised value of the vessel
as a profit-earning machine not in the abstract but in view of the actual
circumstances," without, of course, taking into account considerations which were
too remote at the time of the loss. 27 [Emphasis supplied].

As stated at the outset, to enable an injured party to recover actual or compensatory damages, he
is required to prove the actual amount of loss with reasonable degree of certainty premised upon
competent proof and on the best evidence available. 28 The burden of proof is on the party who
would be defeated if no evidence would be presented on either side. He must establish his case
by a preponderance of evidence which means that the evidence, as a whole, adduced by one side
is superior to that of the other. 29 In other words, damages cannot be presumed and courts, in
making an award must point out specific facts that could afford a basis for measuring whatever
compensatory or actual damages are borne. 30

In this case, actual damages were proven through the sole testimony of private respondent's
general manager and certain pieces of documentary evidence. Except for Exhibit B where the
value of the 1,050 bañeras of fish were pegged at their September 1977 value when the collision
happened, the pieces of documentary evidence proffered by private respondent with respect to
items and equipment lost show similar items and equipment with corresponding prices in early
1987 or approximately ten (10) years after the collision. Noticeably, petitioner did not object to
the exhibits in terms of the time index for valuation of the lost goods and equipment. In objecting
to the same pieces of evidence, petitioner commented that these were not duly authenticated and
that the witness (Del Rosario) did not have personal knowledge on the contents of the writings
and neither was he an expert on the subjects thereof. 31 Clearly ignoring petitioner's objections to
the exhibits, the lower court admitted these pieces of evidence and gave them due weight to
arrive at the award of P6,438,048.00 as actual damages.

The exhibits were presented ostensibly in the course of Del Rosario's testimony. Private
respondent did not present any other witnesses especially those whose signatures appear in the
price quotations that became the bases of the award. We hold, however, that the price quotations
are ordinary private writings which under the Revised Rules of Court should have been proffered
along with the testimony of the authors thereof. Del Rosario could not have testified on the
veracity of the contents of the writings even though he was the seasoned owner of a fishing fleet
because he was not the one who issued the price quotations. Section 36, Rule 130 of the Revised
Rules of Court provides that a witness can testify only to those facts that he knows of his
personal knowledge.

For this reason, Del Rosario's claim that private respondent incurred losses in the total amount of
P6,438,048.00 should be admitted with extreme caution considering that, because it was a bare
assertion, it should be supported by independent evidence. Moreover, because he was the owner
of private respondent corporation 32 whatever testimony he would give with regard to the value
of the lost vessel, its equipment and cargoes should be viewed in the light of his self-interest
therein. We agree with the Court of Appeals that his testimony as to the equipment installed and
the cargoes loaded on the vessel should be given credence 33 considering his familiarity thereto.
However, we do not subscribe to the conclusion that his valuation of such equipment, cargo and
the vessel itself should be accepted as gospel truth. 34 We must, therefore, examine the
documentary evidence presented to support Del Rosario's claim as regards the amount of losses.

The price quotations presented as exhibits partake of the nature of hearsay evidence considering
that the persons who issued them were not presented as witnesses. 35 Any evidence, whether oral
or documentary, is hearsay if its probative value is not based on the personal knowledge of the
witness but on the knowledge of another person who is not on the witness stand. Hearsay
evidence, whether objected to or not, has no probative value unless the proponent can show that
the evidence falls within the exceptions to the hearsay evidence rule. 36 On this point, we believe
that the exhibits do not fall under any of the exceptions provided under Sections 37 to 47 of Rule
130. 37

It is true that one of the exceptions to the hearsay rule pertains to "commercial lists and the like"
under Section 45, Rule 130 of the Revised Rules on Evidence. In this respect, the Court of
Appeals considered private respondent's exhibits as "commercial lists." It added, however, that
these exhibits should be admitted in evidence "until such time as the Supreme Court
categorically rules on the admissibility or inadmissibility of this class of evidence" because "the
reception of these documentary exhibits (price quotations) as evidence rests on the sound
discretion of the trial court." 38 Reference to Section 45, Rule 130, however, would show that the
conclusion of the Court of Appeals on the matter was arbitrarily arrived at. This rule states:

Commercial lists and the like. — Evidence of statements of matters of interest to

persons engaged in an occupation contained in a list, register, periodical, or other
published compilation is admissible as tending to prove the truth of any relevant
matter so stated if that compilation is published for use by persons engaged in that
occupation and is generally used and relied upon by them there.

Under Section 45 of the aforesaid Rule, a document is a commercial list if: (1) it is a statement of
matters of interest to persons engaged in an occupation; (2) such statement is contained in a list,
register, periodical or other published compilation; (3) said compilation is published for the use
of persons engaged in that occupation, and (4) it is generally used and relied upon by persons in
the same occupation.

Based on the above requisites, it is our considered view that Exhibits B, C, D, E, F and H 39 are
not "commercial lists" for these do not belong to the category of "other published compilations"
under Section 45 aforequoted. Under the principle of ejusdem generis, "(w)here general words
follow an enumeration of persons or things, by words of a particular and specific meaning, such
general words are not to be construed in their widest extent, but are to be held as applying only to
persons or things of the same kind or class as those specifically mentioned." 40 The exhibits
mentioned are mere price quotations issued personally to Del Rosario who requested for them
from dealers of equipment similar to the ones lost at the collision of the two vessels. These are
not published in any list, register, periodical or other compilation on the relevant subject matter.
Neither are these "market reports or quotations" within the purview of "commercial lists" as
these are not "standard handbooks or periodicals, containing data of everyday professional need
and relied upon in the work of the occupation." 41 These are simply letters responding to the
queries of Del Rosario. Thus, take for example Exhibit D which reads:

January 20, 1987

PROFORMA INVOICE NO. PSPI-05/87-NAV

MARIA EFIGINIA FISHING CORPORATION

Navotas, Metro Manila

Attention: MR. EDDIE DEL ROSARIO

Gentlemen:

In accordance to your request, we are pleated to quote our Cummins Marine

Engine, to wit.

Two (2) units CUMMINS Marine Engine model

N855-M, 195 bhp. at 1800 rpm., 6-cylinder in-line,
4-stroke cycle, natural aspirated, 5 1/2 in. x 6 in.
bore and stroke, 855 cu. In. displacement, keel-
cooled, electric starting coupled with Twin-Disc
Marine gearbox model MG-509, 4.5:1 reduction
 ratio, includes oil cooler, companion flange, manual
and standard accessories as per attached sheet.

Price FOB Manila P580,000.00/unit

Total FOB Manila P1,160,000.00

TERMS : CASH

DELIVERY : 60-90 days from date of order.

VALIDITY : Subject to our final confirmation.

WARRANTY : One (1) full year against factory defect.

Very truly yours,POWER SYSTEMS, INC.(Sgd.)E. D. Daclan

To be sure, letters and telegrams are admissible in evidence but these are, however, subject to the
general principles of evidence and to various rules relating to documentary evidence. 42 Hence, in
one case, it was held that a letter from an automobile dealer offering an allowance for an
automobile upon purchase of a new automobile after repairs had been completed, was not a
"price current" or "commercial list" within the statute which made such items presumptive
evidence of the value of the article specified therein. The letter was not admissible in evidence as
a "commercial list" even though the clerk of the dealer testified that he had written the letter in
due course of business upon instructions of the dealer. 43

But even on the theory that the Court of Appeals correctly ruled on the admissibility of those
letters or communications when it held that unless "plainly irrelevant, immaterial or
incompetent," evidence should better be admitted rather than rejected on "doubtful or technical
grounds," 44 the same pieces of evidence, however, should not have been given probative weight.
This is a distinction we wish to point out. Admissibility of evidence refers to the question of
whether or not the circumstance (or evidence) is to considered at all. 45 On the other hand, the
probative value of evidence refers to the question of whether or not it proves an issue. 46 Thus, a
letter may be offered in evidence and admitted as such but its evidentiary weight depends upon
the observance of the rules on evidence. Accordingly, the author of the letter should be presented
as witness to provide the other party to the litigation the opportunity to question him on the
contents of the letter. Being mere hearsay evidence, failure to present the author of the letter
renders its contents suspect. As earlier stated, hearsay evidence, whether objected to or not, has
no probative value. Thus:

The courts differ as to the weight to be given to hearsay evidence admitted

without objection. Some hold that when hearsay has been admitted without
objection, the same may be considered as any other properly admitted testimony.
Others maintain that it is entitled to no more consideration than if it had been
excluded.

The rule prevailing in this jurisdiction is the latter one. Our Supreme Court held
that although the question of admissibility of evidence can not be raised for the
first time on appeal, yet if the evidence is hearsay it has no probative value and
should be disregarded whether objected to or not. "If no objection is made" —
quoting Jones on Evidence — "it (hearsay) becomes evidence by reason of the
want of such objection even though its admission does not confer upon it any new
attribute in point of weight. Its nature and quality remain the same, so far as its
intrinsic weakness and incompetency to satisfy the mind are concerned, and as
opposed to direct primary evidence, the latter always prevails.

The failure of the defense counsel to object to the presentation of incompetent

evidence, like hearsay evidence or evidence that violates the rules of res inter
alios acta, or his failure to ask for the striking out of the same does not give such
evidence any probative value. But admissibility of evidence should not be equated
with weight of evidence. Hearsay evidence whether objected to or not has no
probative value. 47
Accordingly, as stated at the outset, damages may not be awarded on the basis of hearsay
evidence. 48

Nonetheless, the non-admissibility of said exhibits does not mean that it totally deprives private
respondent of any redress for the loss of its vessel. This is because in Lufthansa German Airlines
v. Court of Appeals, 49 the Court said:

In the absence of competent proof on the actual damage suffered, private

respondent is "entitled to nominal damages which, as the law says, is adjudicated
in order that a right of the plaintiff, which has been violated or invaded by
defendant, may be vindicated and recognized, and not for the purpose of
indemnifying the plaintiff for any loss suffered." [Emphasis supplied].

Nominal damages are awarded in every obligation arising from law, contracts, quasi-contracts,
acts or omissions punished by law, and quasi-delicts, or in every case where property right has
been invaded. 50Under Article 2223 of the Civil Code, "(t)he adjudication of nominal damages
shall preclude further contest upon the right involved and all accessory questions, as between the
parties to the suit, or their respective heirs and assigns."

Actually, nominal damages are damages in name only and not in fact. Where these are allowed,
they are not treated as an equivalent of a wrong inflicted but simply in recognition of the
existence of a technical injury. 51 However, the amount to be awarded as nominal damages shall
be equal or at least commensurate to the injury sustained by private respondent considering the
concept and purpose of such damages. 52 The amount of nominal damages to be awarded may
also depend on certain special reasons extant in the case. 53

Applying now such principles to the instant case, we have on record the fact that petitioner's
vesselPetroparcel was at fault as well as private respondent's complaint claiming the amount of
P692,680.00 representing the fishing nets, boat equipment and cargoes that sunk with the M/V
Maria Efigenia XV. In its amended complaint, private respondent alleged that the vessel had an
actual value of P800,000.00 but it had been paid insurance in the amount of P200,000.00 and,
therefore, it claimed only the amount of P600,000.00. Ordinarily, the receipt of insurance
payments should diminish the total value of the vessel quoted by private respondent in his
complaint considering that such payment is causally related to the loss for which it claimed
compensation. This Court believes that such allegations in the original and amended complaints
can be the basis for determination of a fair amount of nominal damages inasmuch as a complaint
alleges the ultimate facts constituting the plaintiffs cause of
action. 54 Private respondent should be bound by its allegations on the amount of its claims.

With respect to petitioner's contention that the lower court did not acquire jurisdiction over the
amended complaint increasing the amount of damages claimed to P600,000.00, we agree with
the Court of Appeals that the lower court acquired jurisdiction over the case when private
respondent paid the docket fee corresponding to its claim in its original complaint. Its failure to
pay the docket fee corresponding to its increased claim for damages under the amended
complaint should not be considered as having curtailed the lower court's jurisdiction. Pursuant to
the ruling in Sun Insurance Office, Ltd. (SIOL) v. Asuncion, 55 the unpaid docket fee should be
considered as a lien on the judgment even though private respondent specified the amount of
P600,000.00 as its claim for damages in its amended complaint.

Moreover, we note that petitioner did not question at all the jurisdiction of the lower court on the
ground of insufficient docket fees in its answers to both the amended complaint and the second
amended complaint. It did so only in its motion for reconsideration of the decision of the lower
court after it had received an adverse decision. As this Court held in Pantranco North Express,
Inc. v. Court of Appeals, 56 participation in all stages of the case before the trial court, that
included invoking its authority in asking for affirmative relief, effectively barred petitioner by
estoppel from challenging the court's jurisdiction. Notably, from the time it filed its answer to the
second amended complaint on April 16, 1985, 57 petitioner did not question the lower court's
jurisdiction. It was only on December 29, 1989 58 when it filed its motion for reconsideration of
the lower court's decision that petitioner raised the question of the lower court's lack of
jurisdiction. Petitioner thus foreclosed its right to raise the issue of jurisdiction by its own
inaction.
WHEREFORE, the challenged decision of the Court of Appeals dated October 14, 1992 in CA-
G.R. CV No. 26680 affirming that of the Regional Trial Court of Caloocan City, Branch 121, is
hereby MODIFIED insofar as it awarded actual damages to private respondent Maria Efigenia
Fishing Corporation in the amount of P6,438,048.00 for lack of evidentiary bases therefor.
Considering the fact, however, that: (1) technically petitioner sustained injury but which,
unfortunately, was not adequately and properly proved, and (2) this case has dragged on for
almost two decades, we believe that an award of Two Million (P2,000,000.00) 59 in favor of
private respondent as and for nominal damages is in order.

No pronouncement as to costs.

SO ORDERED.
6.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 176240 October 17, 2008

ROLANDO SASAN, SR., LEONILO DAYDAY, MODESTO AGUIRRE, ALEJANDRO

ARDIMER, ELEUTERIO SACIL, WILFREDO JUEGOS, PETRONILO CARCEDO and
CESAR PACIENCIA, petitioners,
vs.
NATIONAL LABOR RELATIONS COMMISSION 4TH DIVISION, EQUITABLE-PCI BANK
and HELPMATE, INC.,respondents.

DECISION

CHICO-NAZARIO, J.:

Assailed in this Petition for Review under Rule 45 of the Rules of Court are the Decision1 dated
24 April 2006 of the Court of Appeals in CA-G.R. SP No. 79912, which affirmed the Decision
dated 22 January 2003 of the National Labor Relations Commission (NLRC) in NLRC Case No.
V-000241-2002 finding that Helpmate, Inc. (HI) is a legitimate independent job contractor and
that the petitioners were not illegally dismissed from work; and the Resolution2 dated 31 October
2006 of the same court denying the Motion for Reconsideration filed by the petitioners.

Respondent Equitable-PCI Bank (E-PCIBank),3 a banking entity duly organized and existing
under and by virtue of Philippine laws, entered into a Contract for Services4 with HI, a domestic
corporation primarily engaged in the business of providing janitorial and messengerial services.
Pursuant to their contract, HI shall hire and assign workers to E-PCIBank to perform
janitorial/messengerial and maintenance services. The contract was impliedly renewed year after
year. Petitioners Rolando Sasan, Sr.,5 Leonilo Dayday,6 Modesto Aguirre,7 Alejandro
Ardimer,8Eleuterio Sacil,9 Wilfredo Juegos,10 Petronilo Carcedo,11 and Cesar Peciencia12 were
among those employed and assigned to E-PCIBank at its branch along Gorordo Avenue, Lahug,
Cebu City, as well as to its other branches in the Visayas.13

O 23 July 2001, petitioners filed with the Arbitration Branch of the NLRC in Cebu City separate
complaints14 against E-PCIBank and HI for illegal dismissal, with claims for separation pay,
service incentive leave pay, allowances, damages, attorney’s fees and costs. Their complaints
were docketed as NLRC RAB-VII Case No. 07-1381-2001 and raffled to Labor Arbiter Jose G.
Gutierrez (Labor Arbiter Gutierrez) for their proper disposition. Subsequently, on 22 August
2001, the petitioners15 amended their complaints to include a claim for 13th month-pay.

Several conciliation hearings were scheduled by Labor Arbiter Gutierrez but the parties still
failed to arrive at a mutually beneficial settlement; hence, Labor Arbiter Gutierrez ordered that
they submit their respective position papers.

In their position papers, petitioners claimed that they had become regular employees of E-
PCIBank with respect to the activities for which they were employed, having continuously
rendered janitorial and messengerial services to the bank for more than one year; that E-PCIBank
had direct control and supervision over the means and methods by which they were to perform
their jobs; and that their dismissal by HI was null and void because the latter had no power to do
so since they had become regular employees of E-PCIBank.

For its part, E-PCIBank averred that it entered into a Contract for Services with HI, an
independent job contractor which hired and assigned petitioners to the bank to perform janitorial
and messengerial services thereat. It was HI that paid petitioners’ wages, monitored petitioners’
daily time records (DTR) and uniforms, and exercised direct control and supervision over the
petitioners and that therefore HI has every right to terminate their services legally. E-PCIBank
could not be held liable for whatever misdeed HI had committed against its employees.
HI, on the other hand, asserted that it was an independent job contractor engaged in the business
of providing janitorial and related services to business establishments, and E-PCIBank was one
of its clients. Petitioners were its employees, part of its pool of janitors/messengers assigned to
E-PCIBank. The Contract for Services between HI and E-PCIBank expired on 15 July 2000. E-
PCIBank no longer renewed said contract with HI and, instead, bidded out its janitorial
requirements to two other job contractors, Able Services and Puritan. HI designated petitioners
to new work assignments, but the latter refused to comply with the same. Petitioners were not
dismissed by HI, whether actually or constructively, thus, petitioners’ complaints before the
NLRC were without basis.

Labor Arbiter Gutierrez focused on the following issues: (a) whether petitioners were regular
employees of HI; (b) whether petitioners were illegally dismissed from their employment; and
(c) whether petitioners were entitled to their money claims.

On 7 January 2002, on the basis of the parties’ position papers and documentary evidence, Labor
Arbiter Gutierrez rendered a Decision finding that HI was not a legitimate job contractor on the
ground that it did not possess the required substantial capital or investment to actually perform
the job, work, or service under its own account and responsibility as required under the Labor
Code.16 HI is therefore a labor-only contractor and the real employer of petitioners is E-PCIBank
which is held liable to petitioners. According to Labor Arbiter Gutierrez:

[T]he undisputed facts show that the [herein petitioners] were made to perform not only as
janitors but also as messengers, drivers and one of them even worked as an electrician. For us,
these jobs are not only directly related to the main business of the principal but are, likewise
deemed necessary in the conduct of respondent Equitable-PCI Bank’s principal business. Thus,
based on the above, we so declare that the [petitioners] are employees of respondent Equitable-
PCI Bank. And having worked with respondent Equitable-PCI Bank for more than one (1) year,
they are deemed regular employees. They cannot, therefore, be removed from employment
without cause and without due process, which is wanting in this case. Hence, the severance of
their employment in the guise of termination of contract is illegal.17

In the dispositive portion of his 7 January 2002 Decision, Labor Arbiter Gutierrez awarded to
petitioners the following amounts:

I. – CESAR PACIENCIA
a) Backwages

July 15, 2001 to January 8, 2002

= ₱190.00 per day = ₱25,840.00

= 5 months and 6 days

= 136 days x ₱190.00

b) Separation Pay =₱12,350.00
June 10, 1996 to July 15, 2001
= 5 years
=₱190.00 x 26 days x 5 years / 2
c) 13th Month Pay = ₱4,940.00
= ₱190.00 x 26 days
Total ₱43,130.00
II – Dominador Suico, Jr. (did not file Amended
Complaint)
a) Backwages = ₱25,840.00
July 15, 2001 to January 15, 2002
same as Paciencia
b) Separation Pay = ₱6,175.00
Feb. 2, 1999 to July 15, 2001
= ₱190.00 x 26 days x 2.5 years / 2
Total = ₱32,015.00
III – Roland Mosquera (did not file Amended
Complaint)
a) Backwages = ₱25,840.00
(same as Paciencia)
b) Separation Pay = ₱7,410.00
March 8, 1998 to July 15, 2001
= ₱190.00 x 26 days x 3 yrs. / 2
Total = ₱33,250.00
IV – Petronillo Carcedo
a) Backwages = ₱25,840.00
(same as Paciencia)
b) Separation Pay = ₱41,990.00
Sept. 16, 1984 to July 15, 2001
= ₱190.00 x 26 days x 17 yrs. / 2
c) 13th Month Pay = ₱4,940.00
= ₱190.00 x 26 days
Total = ₱72,770.00
V – Rolando Sasan, Sr.
a) Backwages = ₱25,840.00
(same as Paciencia)
b) Separation Pay = ₱29,640.00
October 1989 to July 15, 2001
= ₱190.00 x 26 days x 12 yrs. / 2
c) 13th Month Pay = ₱4,940.00
= ₱190.00 x 26 days
Total = ₱60,420.00
VI – Leonilo Dayday
a) Backwages = ₱25,840.00
(same as Paciencia)
b) Separation Pay = ₱44,460.00
Feb. 8, 1983 to July 15, 2001
= ₱190.00 x 26 days x 18 yrs. / 2
c) 13th Month Pay = ₱4,940.00
= ₱190.00 x 26 days
Total = ₱75,240.00
VII – Eleuterio Sacil
a) Backwages = ₱25,840.00
(same as Paciencia)
b) Separation Pay = ₱22,230.00
June 2, 1992 to July 15, 2001
= ₱190.00 x 26 days x 9 yrs. / 2
c) 13th Month Pay = ₱4,940.00
= ₱190.00 x 26 days
Total = ₱53,010.00
VIII – Mario Juntilla
a) Backwages = ₱25,840.00
(same as Pacencia)
b) Separation Pay = ₱34,580.00
October 7, 1987 to July 15, 2001
= ₱190.00 x 26 days x 14 yrs. / 2
c) 13th Month Pay = ₱4,940.00
= ₱190.00 x 26 days
Total = ₱65,360.00
IX – Wilfredo Juegos
a) Backwages = ₱25,840.00
(same as Pacencia)
b) Separation Pay = ₱27,170.00
July 23, 1990 to July 15, 2001
= ₱190.00 x 26 days x 11 yrs. / 2
c) 13th Month Pay = ₱4,840.00
= ₱190.00 x 26 days
Total = ₱57,950.00
X – Modesto Aguirre
a) Backwages = ₱25,840.00
(same as Paciencia)
b) Separation Pay

= Jan. 5, 1992 to July 15, 2001 = ₱23,465.00

= ₱190.00 x 26 days x 9.5 yrs. / 2

c) 13th Month Pay = ₱4,940.00
= ₱190.00 x 26 days
Total = ₱54,245.00
XI – Alejandro Ardimer
a) Backwages = ₱25,840.00

(same as Paciencia)
b) Separation Pay = ₱28,405.00
= Jan. 20, 1990 to July 15, 2001
= ₱190.00 x 26 days x 11.5 yrs. / 2
c) 13th Month Pay = ₱4,940.00
= ₱190.00 x 26 days
Total = ₱59,185.00

xxxx

WHEREFORE, the foregoing premises considered, judgment is hereby rendered directing the
respondents Equitable PCI Bank and Helpmate, Inc. to pay jointly and solidarily the
complainants as follows:

1. Cesar Paciencia - P 43,130.00

2. Dominador Suico, Jr. - 32,015.00

3. Roland Mosquera - 33,250.00

4. Petronilo Carceda - 72,770.00

5. Roland Sasan, Sr. - 60,420.00

6. Leonilo Dayday - 75,240.00

7. Eleuterio Sacil - 53,010.00

8. Mario Juntilla - 65,360.00

9. Wilfredo Juegos - 57,950.00

10. Modesto Aguirre - 54,245.00

11. Alejandro Ardimer - 59,185.00

TOTAL - ₱606,575.0018

Aggrieved by the decision of Labor Arbiter Gutierrez, respondents E-PCIBank and HI appealed
the same to the NLRC, 4th Division, stationed in Cebu City. Their appeals were docketed as
NLRC Case No. V-000241-2002. In support of its allegation that it was a legitimate job
contractor, HI submitted before the NLRC several documents which it did not present before
Labor Arbiter Gutierrez. These are:

1. Certificate of Filing of Certificate of Increase of Capital Stock, Certificate of Filing Amended

Articles of Incorporation, and General Information Sheet Stock Corporation of HI showing
therein that it increased its authorized capital stock from ₱1,500,000.00 to ₱20,000,000.00 on 12
March 1999 with the Securities and Exchange Commission;

2. Audited Financial Statement of HI showing therein that it has Total Assets of ₱20,939,935.72
as of 31 December 2000;

3. Transfer Certificate of Title No. 110173 and Tax Declaration No. GR2K-09-063-00582
registered under the name of HI showing that it has a parcel of land with Market Value of
₱1,168,860.00 located along Rizal Avenue (now Bacalso Avenue), Cebu City, and

4. Tax Declaration No. GR2K-09-063-00583 registered under the name of HI showing that it has
a commercial building constructed on the preceding lot located along Bacalso Avenue, Cebu
City with market value of ₱2,515,170.00.19

The NLRC promulgated its Decision on 22 January 2003 modifying the ruling of Labor Arbiter
Gutierrez. The NLRC took into consideration the documentary evidence presented by HI for the
first time on appeal and, on the basis thereof, declared HI as a highly capitalized venture with
sufficient capitalization, which cannot be considered engaged in "labor-only contracting."

On the charge of illegal dismissal, the NLRC ruled that:

The charge of illegal dismissal was prematurely filed. The record shows that barely eight (8)
days from 15 July 2001 when the complainants were placed on a temporary "off-detail," they
filed their complaints on 23 July 2001 and amended their complaints on 22 August 2001 against
the respondents on the presumption that their services were already terminated. Temporary "off-
detail" is not equivalent to dismissal. x x x.20

The NLRC deleted Labor Arbiter Gutierrez’s award of backwages and separation pay, but
affirmed his award for 13th month pay and attorney’s fees equivalent to ten percent (10%) of the
13th month pay, to the petitioners.21 Thus, the NLRC decreed in its 22 January 2003 Decision,
the payment of the following reduced amounts to petitioners:

WHEREFORE, premises considered, the decision of Labor Arbiter Jose G. Gutierrez dated 7
January 2002 is MODIFIED, to wit:

Ordering respondents Helpmate, Inc. and Equitable PCI Bank to jointly and severally22 pay the
complainants of their 13th month pay and attorney’s fees in the aggregate amount of Forty-Three
Thousand Four Hundred Seventy-Two and 00/100 (₱43,472.00), broken down as follows:

1. Aguirre, Modesto - P 5,434.00

2. Ardimer, Alejandro - 5,434.00

3. Carcedo, Petronilo - 5,434.00

4. Dayday, Leonilo - 5,434.00

5. Juegos, Wilfredo - 5,434.00

6. Juntilla, Mario - 5,434.00

7. Paciencia, Cesar - 5,434.00

8. Sacil, Eleuterio - 5,434.00

TOTAL ₱43,472.0023

Petitioners’ Motion for Reconsideration was denied by the NLRC in its Resolution dated 1 July
2003.24
Distressed by the decision of the NLRC, petitioners sought recourse with the Court of Appeals
by filing a Petition for Certiorari25 under Rule 65 of the 1997 Rules of Civil Procedure docketed
as CA-G.R. SP No. 79912.

In its Decision dated 24 April 2006, the Court of Appeals affirmed the findings of the NLRC that
HI was a legitimate job contractor and that it did not illegally dismiss petitioners:

As to the question of whether or not, as a legitimate independent job contractor, respondent HI

illegally dismissed the petitioners. We rule in the negative.

It is undisputed that the contract between respondent HI and its client E-PCIBank expired on
July 15, 2000. The record shows that after said expiration, respondent HI offered the petitioners
new work assignments to various establishments which are HI’s clients. The petitioners,
therefore, were not even placed on "floating status." They simply refused, without justifiable
reason, to assume their new work assignments which refusal was tantamount to abandonment.
There being no illegal dismissal, petitioners are not entitled to backwages or separation pay.26

The fallo of the 24 April 2006 Decision of the appellate court reads:

WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us

DENYING the petition filed in this case and AFFIRMING the decision of the NLRC, Fourth
Division, in NLRC Case No. V-000145-2003 promulgated on June 22, 2003.27

Petitioners now come before us via the instant Petition raising the following issues:

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ACTED IN EXCESS OF

THEIR JURISDICTION AND/OR COMMITTED GRAVE ABUSE OF DISCRETION IN
UPHOLDING THE NLRC 4TH DIVISION’S DECISION AND GRAVELY ERRED IN:

I. ACCEPTING AND APPRECIATING THE PIECES OF EVIDENCE SUBMITTED BY

RESPONDENTS DURING APPEAL, ALL EXISTING DURING THE TIME THE NLRC RAB
7’S TRIAL, CONTRARY TO THIS HONORABLE COURT’S PREVIOUS ESTABLISHED
DECISIONS.

II. REVERSING, WITHOUT ANY LEGAL BASIS, THE FACTUAL FINDING OF NLRC
RAB 7 THAT THE RESPONDENT HI WAS LABOR ONLY CONTRACTOR.

III. RULING, WITHOUT ANY LEGAL BASIS, THAT THE ILLEGAL DISMISSAL
COMPLAINTS WERE PREMATURELY FILED.28

Before proceeding to the substantive issues, we first address the procedural issues raised by
petitioners.

Petitioners object to the acceptance and consideration by the NLRC of the evidence presented by
HI for the first time on appeal. This is not a novel procedural issue, however, and our
jurisprudence is already replete with cases29allowing the NLRC to admit evidence, not presented
before the Labor Arbiter, and submitted to the NLRC for the first time on appeal. Technical rules
of evidence are not binding in labor cases. Labor officials should use every reasonable means to
ascertain the facts in each case speedily and objectively, without regard to technicalities of law or
procedure, all in the interest of due process.30

The submission of additional evidence before the NLRC is not prohibited by its New Rules of
Procedure. After all, rules of evidence prevailing in courts of law or equity are not controlling in
labor cases. The NLRC and labor arbiters are directed to use every and all reasonable means to
ascertain the facts in each case speedily and objectively, without regard to technicalities of law
and procedure all in the interest of substantial justice. In keeping with this directive, it has been
held that the NLRC may consider evidence, such as documents and affidavits, submitted by the
parties for the first time on appeal. The submission of additional evidence on appeal does not
prejudice the other party for the latter could submit counter-evidence.31

In Clarion Printing House, Inc. v. National Labor Relations Commission,32 we again emphasized
that:
[T]he NLRC is not precluded from receiving evidence, even for the first time on appeal, because
technical rules of procedure are not binding in labor cases.

The settled rule is that the NLRC is not precluded from receiving evidence on appeal as technical
rules of evidence are not binding in labor cases. In fact, labor officials are mandated by the Labor
Code to use every and all reasonable means to ascertain the facts in each case speedily and
objectively, without regard to technicalities of law or procedure, all in the interest of due process.
Thus, in Lawin Security Services v. NLRC, and Bristol Laboratories Employees’ Association-
DFA v. NLRC, we held that even if the evidence was not submitted to the labor arbiter, the fact
that it was duly introduced on appeal to the NLRC is enough basis for the latter to be more
judicious in admitting the same, instead of falling back on the mere technicality that said
evidence can no longer be considered on appeal. Certainly, the first course of action would be
more consistent with equity and the basic notions of fairness.

For the same reasons, we cannot find merit in petitioners’ protestations against the documentary
evidence submitted by HI because they were mere photocopies. Evidently, petitioners are
invoking the best evidence rule, espoused in Section 3, Rule130 of the Rules of Court. It
provides that:

Section 3. – Original document must be produced; exceptions. – When the subject of inquiry is
the contents of a document, no evidence shall be admissible other than the original document
itself x x x.

The above provision explicitly mandates that when the subject of inquiry is the contents of a
document, no evidence shall be admissible other than the original document itself.
Notably, certified true copies of these documents, acceptable under the Rules of Court33 were
furnished to the petitioners. Even assuming that petitioners were given mere photocopies, again,
we stress that proceedings before the NLRC are not covered by the technical rules of evidence
and procedure as observed in the regular courts. Technical rules of evidence do not apply if the
decision to grant the petition proceeds from an examination of its sufficiency as well as a careful
look into the arguments contained in position papers and other documents.34

Petitioners had more than adequate opportunity when they filed their motion for reconsideration
before the NLRC, their Petition to the Court of Appeals and even to this Court, to refute or
present their counter-evidence to the documentary evidence presented by HI. Having failed in
this respect, petitioners cannot now be heard to complain about these documentary evidences
presented by HI upon which the NLRC and the Court of Appeals based its finding that HI is a
legitimate job contractor.

The essence of due process is simply an opportunity to be heard, or as applied to administrative

proceedings, a fair and reasonable opportunity to explain one's side. It is also an opportunity to
seek a reconsideration of the action or ruling complained of. It is not the denial of the right to be
heard but denial of the opportunity to be heard that constitutes violation of due process of law.
Petitioners herein were afforded every opportunity to be heard and to seek reconsideration of the
adverse judgment against them. They had every opportunity to strengthen their positions by
presenting their own substantial evidence to controvert those submitted by E-PCIBank and HI
before the NLRC, and even before the Court of Appeals. It cannot win its case by merely raising
unsubstantiated doubt or relying on the weakness of the adverse parties’ evidence.

We now proceed to the resolution of the substantive issues submitted by petitioners for our
consideration, particularly, whether HI is a labor-only contactor and E-PCIBank should be
deemed petitioners’ principal employer; and whether petitioners were illegally dismissed from
their employment.

Permissible job contracting or subcontracting refers to an arrangement whereby a principal

agrees to put out or farm out to a contractor or subcontractor the performance or completion of a
specific job, work or service within a definite or predetermined period, regardless of whether
such job, work or service is to be performed or completed within or outside the premises of the
principal.35 A person is considered engaged in legitimate job contracting or subcontracting if the
following conditions concur:
(a) The contractor or subcontractor carries on a distinct and independent business and undertakes
to perform the job, work or service on its own account and under its own responsibility
according to its own manner and method, and free from the control and direction of the principal
in all matters connected with the performance of the work except as to the results thereof;

(b) The contractor or subcontractor has substantial capital or investment; and

(c) The agreement between the principal and contractor or subcontractor assures the contractual
employees entitlement to all labor and occupational safety and health standards, free exercise of
the right to self-organization, security of tenure, and social and welfare benefits.36

In contrast, labor-only contracting, a prohibited act, is an arrangement where the contractor or

subcontractor merely recruits, supplies or places workers to perform a job, work or service for a
principal.37 In labor-only contracting, the following elements are present:

(a) The contractor or subcontractor does not have substantial capital or investment to actually
perform the job, work or service under its own account and responsibility; and

(b) The employees recruited, supplied or placed by such contractor or subcontractor are
performing activities which are directly related to the main business of the principal.38

In distinguishing between permissible job contracting and prohibited labor-only

contracting,39 we elucidated in Vinoya v. National Labor Relations Commission,40 that it is not
enough to show substantial capitalization or investment in the form of tools, equipment, etc.
Other facts that may be considered include the following: whether or not the contractor is
carrying on an independent business; the nature and extent of the work; the skill required; the
term and duration of the relationship; the right to assign the performance of specified pieces of
work; the control and supervision of the work to another; the employer’s power with respect to
the hiring, firing and payment of the contractor’s workers; the control of the premises; the duty
to supply premises, tools, appliances, materials and labor; and the mode and manner or terms of
payment.41 Simply put, the totality of the facts and the surrounding circumstances of the case are
to be considered.42 Each case must be determined by its own facts and all the features of the
relationship are to be considered.43

In the case at bar, we find substantial evidence to support the finding of the NLRC, affirmed by
the Court of Appeals, that HI is a legitimate job contractor.

We take note that HI has been issued by the Department of Labor and Employment (DOLE)
Certificate of Registration44 Numbered VII-859-1297-048. The said certificate states among
other things:

"CERTIFICATE OF REGISTRATION

Numbered VII-859-1297-048

is issued to

HELPMATE, INCORPORATED

330 N. Bacalso Avenue, Cebu City

for having complied with the requirements as provided for under the Labor Code, as amended,
and its Implementing Rules and having paid the registration fee in the amount of ONE
HUNDRED PESOS (P100.00) per Official Receipt Number 9042769, dated October 16, 1997.

In witness whereof, and by authority vested in me by the Labor Code, as amended, and its
Implementing Rules specifically Department Order No. 10 series of 1997, I have hereunto set my
hand and affixed the Official on this 23rd day of December 1997."45

Having been issued by a public officer, this certification carries with it the presumption that it
was issued in the regular performance of official duty.46 In the absence of proof, petitioner’s bare
assertion cannot prevail over this presumption. Moreover, the DOLE being the agency primarily
responsible for regulating the business of independent job contractors, we can presume in the
absence of evidence to the contrary that it thoroughly evaluated the requirements submitted by
HI as a precondition to the issuance of the Cerificate of Registration.

The evidence on record also shows that HI is carrying on a distinct and independent business
from E-PCIBank. The employees of HI are assigned to clients to perform janitorial and
messengerial services, clearly distinguishable from the banking services in which E-PCIBank is
engaged.

Despite the afore-mentioned compliance by HI with the requisites for permissible job
contracting, Labor Arbiter Gutierrez still declared that HI was engaged in prohibited labor-only
contracting because it did not possess substantial capital or investment to actually perform the
job, work or service under its own account or responsibility. Both the NLRC and the Court of
Appeals ruled to the contrary, and we agree.

"Substantial capital or investment" refers to capital stocks and subscribed capitalization in the
case of corporations, tools, equipments, implements, machineries and work premises, actually
and directly used by the contractor or subcontractor in the performance or completion of the job,
work or service contracted out.47 An independent contractor must have either substantial capital
or investment in the form of tools, equipment, machineries, work premises, among others. The
law does not require both substantial capital and investment in the form of tools, equipment,
machineries, etc.48 It is enough that it has substantial capital. In the case of HI, it has proven
both.

We have expostulated that once it is established that an entity such as in this case, HI has
substantial capital, it was no longer necessary to adduce further evidence to prove that it does not
fall within the purview of "labor-only" contracting.49 There is even no need for HI to refute the
contention of petitioners that some of the activities they performed such as those of messengerial
services are directly related to the principal business of E- PCIBank.

In any event, we have earlier declared that while these services rendered by the petitioners as
janitors, messengers and drivers are considered directly related to the principal business of a
bank, in this case E-PCIBank, nevertheless, they are not necessary in the conduct of its (E-
PCIBANK’s) principal business.50

HI has substantial capital in the amount of ₱20,939,935.72. It has its own building where it holds
office and it has been engaged in business for more than a decade now.51 As observed by the
Court of Appeals, surely, such a well-established business entity cannot be considered a labor-
only contractor.

Etched in an unending stream of cases are four standards in determining the existence of an
employer-employee relationship, namely: (a) the manner of selection and engagement of the
putative employee; (b) the mode of payment of wages; (c) the presence or absence of power of
dismissal; and, (d) the presence or absence of control of the putative employee’s conduct. Most
determinative among these factors is the so-called "control test."52

The presence of the first requisite for the existence of an employer-employee relationship to wit,
the selection and engagement of the employee is shown by the fact that it was HI which selected
and engaged the services of petitioners as its employees. This is fortified by the provision in the
contract of services between HI and E-PCIBank which states:

Selection, Engagement, Discharge. [HI] shall have exclusive discretion in the selection,
engagement, investigation, discipline and discharge of its employees.53

On the second requisite regarding the payment of wages, it was HI who paid petitioners their
wages and who provided their daily time records and uniforms and other materials necessary for
the work they performed. Therefore, it is HI who is responsible for petitioner’s claims for wages
and other employee’s benefits. Precisely, the contract of services between HI and E-PCIBank
reveals the following:

Indemnity for Salaries and Benefits, etc. [HI] shall be responsible for the salaries, allowances,
overtime and holiday pay, and other benefits of its personnel including withholding taxes.54
As to the third requisite on the power to control the employee’s conduct, and the fourth requisite
regarding the power of dismissal, again E-PCIBank did not have the power to control petitioners
with respect to the means and methods by which their work was to be accomplished. It likewise
had no power of dismissal over the petitioners. All that E-PCIBank could do was to report to HI
any untoward act, negligence, misconduct or malfeasance of any employee assigned to the
premises. The contract of services between E-PCIBank and HI is noteworthy. It states:

[HI] shall have the entire charge, control and supervision over all its employees who may be
fielded to [E-PCIBank]. For this purpose, [HI] shall assign a regular supervisor of its employees
who may be fielded to the Bank and which regular supervisor shall exclusively supervise and
control the activities and functions defined in Section 1 hereof. x x x.55

All these circumstances establish that HI undertook said contract on its account, under its own
responsibility, according to its own manner and method, and free from the control and direction
of E-PCIBank. Where the control of the principal is limited only to the result of the work,
independent job contracting exists. The janitorial service agreement between E-PCIBank and HI
is definitely a case of permissible job contracting.

Considering the foregoing, plus taking judicial notice of the general practice in private, as well as
in government institutions and industries, of hiring an independent contractor to perform special
services,56 ranging from janitorial, security and even technical services, we can only conclude
that HI is a legitimate job contractor. As such legitimate job contractor, the law creates an
employer-employee relationship between HI and petitioners57 which renders HI liable for the
latter’s claims.

In view of the preceding conclusions, petitioners will never become regular employees of E-
PCIBank regardless of how long they were working for the latter.58

We further rule that petitioners were not illegally dismissed by HI. Upon the termination of the
Contract of Service between HI and E-PCIBank, petitioners cannot insist to continue to work for
the latter. Their pull-out from E-PCIBank did not constitute illegal dismissal since, first,
petitioners were not employees of E-PCIBank; and second, they were pulled out from said
assignment due to the non-renewal of the Contract of Service between HI and E-PCIBank. At the
time they filed their complaints with the Labor Arbiter, petitioners were not even dismissed by
HI; they were only "off-detail" pending their re-assignment by HI to another client. And when
they were actually given new assignments by HI with other clients,59 petitioners even refused the
same. As the NLRC pronounced, petitioners’ complaint for illegal dismissal is apparently
premature.

WHEREFORE, premises considered, the Petition is DENIED for lack of merit. The Decision
dated 24 April 2006 and Resolution dated 31 October 2006 of the Court of Appeals
are AFFIRMED. Costs against petitioners.

SO ORDERED.
7.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 93833 September 28, 1995

SOCORRO D. RAMIREZ, petitioner,

vs.
HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, respondents.

KAPUNAN, J.:

A civil case damages was filed by petitioner Socorro D. Ramirez in the Regional Trial Court of
Quezon City alleging that the private respondent, Ester S. Garcia, in a confrontation in the latter's
office, allegedly vexed, insulted and humiliated her in a "hostile and furious mood" and in a
manner offensive to petitioner's dignity and personality," contrary to morals, good customs and
public policy."1

In support of her claim, petitioner produced a verbatim transcript of the event and sought moral
damages, attorney's fees and other expenses of litigation in the amount of P610,000.00, in
addition to costs, interests and other reliefs awardable at the trial court's discretion. The transcript
on which the civil case was based was culled from a tape recording of the confrontation made by
petitioner.2 The transcript reads as follows:

Plaintiff Soccoro D. Ramirez (Chuchi) — Good Afternoon M'am.

Defendant Ester S. Garcia (ESG) — Ano ba ang nangyari sa 'yo,

nakalimot ka na kung paano ka napunta rito, porke member ka na,
magsumbong ka kung ano ang gagawin ko sa 'yo.

CHUCHI — Kasi, naka duty ako noon.

ESG — Tapos iniwan no. (Sic)

CHUCHI — Hindi m'am, pero ilan beses na nila akong binalikan,

sabing ganoon —

ESG — Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) mag
explain ka, kasi hanggang 10:00 p.m., kinabukasan hindi ka na
pumasok. Ngayon ako ang babalik sa 'yo, nag-aaply ka sa States,
nag-aaply ka sa review mo, kung kakailanganin ang certification
mo, kalimutan mo na kasi hindi ka sa akin makakahingi.

CHUCHI — Hindi M'am. Kasi ang ano ko talaga noon i-

cocontinue ko up to 10:00 p.m.

ESG — Bastos ka, nakalimutan mo na kung paano ka pumasok

dito sa hotel. Magsumbong ka sa Union kung gusto mo.
Nakalimutan mo na kung paano ka nakapasok dito "Do you think
that on your own makakapasok ka kung hindi ako.
Panunumbyoyan na kita (Sinusumbatan na kita).

CHUCHI — Itutuloy ko na M'am sana ang duty ko.

ESG — Kaso ilang beses na akong binabalikan doon ng mga no

(sic) ko.
 ESG — Nakalimutan mo na ba kung paano ka pumasok sa hotel,
kung on your own merit alam ko naman kung gaano ka "ka bobo"
mo. Marami ang nag-aaply alam kong hindi ka papasa.

CHUCHI — Kumuha kami ng exam noon.

ESG — Oo, pero hindi ka papasa.

CHUCHI — Eh, bakit ako ang nakuha ni Dr. Tamayo

ESG — Kukunin ka kasi ako.

CHUCHI — Eh, di sana —

ESG — Huwag mong ipagmalaki na may utak ka kasi wala kang

utak. Akala mo ba makukuha ka dito kung hindi ako.

CHUCHI — Mag-eexplain ako.

ESG — Huwag na, hindi ako mag-papa-explain sa 'yo, makaalala

ka kung paano ka puma-rito. "Putang-ina" sasabi-sabihin mo
kamag-anak ng nanay at tatay mo ang mga magulang ko.

ESG — Wala na akong pakialam, dahil nandito ka sa loob, nasa

labas ka puwede ka ng hindi pumasok, okey yan nasaloob ka
umalis ka doon.

CHUCHI — Kasi M'am, binbalikan ako ng mga taga Union.

ESG — Nandiyan na rin ako, pero huwag mong kalimutan na hindi

ka makakapasok kung hindi ako. Kung hindi mo kinikilala yan
okey lang sa akin, dahil tapos ka na.

CHUCHI — Ina-ano ko m'am na utang na loob.

ESG — Huwag na lang, hindi mo utang na loob, kasi kung baga sa

no, nilapastangan mo ako.

CHUCHI — Paano kita nilapastanganan?

ESG — Mabuti pa lumabas ka na. Hindi na ako makikipagusap sa

'yo. Lumabas ka na. Magsumbong ka.3

As a result of petitioner's recording of the event and alleging that the said act of secretly taping
the confrontation was illegal, private respondent filed a criminal case before the Regional Trial
Court of Pasay City for violation of Republic Act 4200, entitled "An Act to prohibit and penalize
wire tapping and other related violations of private communication, and other purposes." An
information charging petitioner of violation of the said Act, dated October 6, 1988 is quoted
herewith:

INFORMATION

The Undersigned Assistant City Fiscal Accusses Socorro D. Ramirez of Violation

of Republic Act No. 4200, committed as follows:

That on or about the 22nd day of February, 1988, in Pasay City

Metro Manila, Philippines, and within the jurisdiction of this
honorable court, the above-named accused, Socorro D. Ramirez
not being authorized by Ester S. Garcia to record the latter's
conversation with said accused, did then and there willfully,
unlawfully and feloniously, with the use of a tape recorder secretly
 record the said conversation and thereafter communicate in writing
the contents of the said recording to other person.

Contrary to law.

Pasay City, Metro Manila, September 16, 1988.

MARIANO M.
CUNETA
Asst. City Fiscal

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

From the trial court's Order, the private respondent filed a Petition for Review on Certiorari with
this Court, which forthwith referred the case to the Court of Appeals in a Resolution (by the First
Division) of June 19, 1989.

On February 9, 1990, respondent Court of Appeals promulgated its assailed Decision declaring
the trial court's order of May 3, 1989 null and void, and holding that:

[T]he allegations sufficiently constitute an offense punishable under Section 1 of

R.A. 4200. In thus quashing the information based on the ground that the facts
alleged do not constitute an offense, the respondent judge acted in grave abuse of
discretion correctible by certiorari.5

Consequently, on February 21, 1990, petitioner filed a Motion for Reconsideration which
respondent Court of Appeals denied in its Resolution6 dated June 19, 1990. Hence, the instant
petition.

Petitioner vigorously argues, as her "main and principal issue"7 that the applicable provision of
Republic Act 4200 does not apply to the taping of a private conversation by one of the parties to
the conversation. She contends that the provision merely refers to the unauthorized taping of a
private conversation by a party other than those involved in the communication.8 In relation to
this, petitioner avers that the substance or content of the conversation must be alleged in the
Information, otherwise the facts charged would not constitute a violation of R.A. 4200.9 Finally,
petitioner agues that R.A. 4200 penalizes the taping of a "private communication," not a "private
conversation" and that consequently, her act of secretly taping her conversation with private
respondent was not illegal under the said act. 10

We disagree.

First, legislative intent is determined principally from the language of a statute. Where the
language of a statute is clear and unambiguous, the law is applied according to its express terms,
and interpretation would be resorted to only where a literal interpretation would be either
impossible 11 or absurb or would lead to an injustice. 12

Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized Wire Tapping and Other
Related Violations of Private Communication and Other Purposes," provides:

Sec. 1. It shall be unlawfull for any person, not being authorized by all the parties
to any private communication or spoken word, to tap any wire or cable, or by
using any other device or arrangement, to secretly overhear, intercept, or record
such communication or spoken word by using a device commonly known as a
dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or
however otherwise described.
The aforestated provision clearly and unequivocally makes it illegal for any person, not
authorized by all the parties to any private communication to secretly record such
communication by means of a tape recorder. The law makes no distinction as to whether the
party sought to be penalized by the statute ought to be a party other than or different from those
involved in the private communication. The statute's intent to penalize all persons unauthorized
to make such recording is underscored by the use of the qualifier "any". Consequently, as
respondent Court of Appeals correctly concluded, "even a (person) privy to a communication
who records his private conversation with another without the knowledge of the latter (will)
qualify as a violator" 13 under this provision of R.A. 4200.

A perusal of the Senate Congressional Records, moreover, supports the respondent court's
conclusion that in enacting R.A. 4200 our lawmakers indeed contemplated to make illegal,
unauthorized tape recording of private conversations or communications taken either by the
parties themselves or by third persons. Thus:

xxx xxx xxx

Senator Tañada: That qualified only "overhear".

Senator Padilla: So that when it is intercepted or recorded, the element of secrecy

would not appear to be material. Now, suppose, Your Honor, the recording is not
made by all the parties but by some parties and involved not criminal cases that
would be mentioned under section 3 but would cover, for example civil cases or
special proceedings whereby a recording is made not necessarily by all the parties
but perhaps by some in an effort to show the intent of the parties because the
actuation of the parties prior, simultaneous even subsequent to the contract or the
act may be indicative of their intention. Suppose there is such a recording, would
you say, Your Honor, that the intention is to cover it within the purview of this
bill or outside?

Senator Tañada: That is covered by the purview of this bill, Your Honor.

Senator Padilla: Even if the record should be used not in the prosecution of
offense but as evidence to be used in Civil Cases or special proceedings?

Senator Tañada: That is right. This is a complete ban on tape recorded

conversations taken without the authorization of all the parties.

Senator Padilla: Now, would that be reasonable, your Honor?

Senator Tañada: I believe it is reasonable because it is not sporting to record the

observation of one without his knowing it and then using it against him. It is not
fair, it is not sportsmanlike. If the purpose; Your honor, is to record the intention
of the parties. I believe that all the parties should know that the observations are
being recorded.

Senator Padilla: This might reduce the utility of recorders.

Senator Tañada: Well no. For example, I was to say that in meetings of the board
of directors where a tape recording is taken, there is no objection to this if all the
parties know. It is but fair that the people whose remarks and observations are
being made should know that the observations are being recorded.

Senator Padilla: Now, I can understand.

Senator Tañada: That is why when we take statements of persons, we say: "Please
be informed that whatever you say here may be used against you." That is fairness
and that is what we demand. Now, in spite of that warning, he makes damaging
statements against his own interest, well, he cannot complain any more. But if you
are going to take a recording of the observations and remarks of a person without
him knowing that it is being taped or recorded, without him knowing that what is
being recorded may be used against him, I think it is unfair.
 xxx xxx xxx

(Congression Record, Vol. III, No. 31, p. 584, March 12, 1964)

Senator Diokno: Do you understand, Mr. Senator, that under Section 1 of the bill
as now worded, if a party secretly records a public speech, he would be penalized
under Section 1? Because the speech is public, but the recording is done secretly.

Senator Tañada: Well, that particular aspect is not contemplated by the bill. It is
the communication between one person and another person — not between a
speaker and a public.

xxx xxx xxx

(Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964)

xxx xxx xxx

The unambiguity of the express words of the provision, taken together with the above-quoted
deliberations from the Congressional Record, therefore plainly supports the view held by the
respondent court that the provision seeks to penalize even those privy to the private
communications. Where the law makes no distinctions, one does not distinguish.

Second, the nature of the conversations is immaterial to a violation of the statute. The substance
of the same need not be specifically alleged in the information. What R.A. 4200 penalizes are the
acts of secretly overhearing, intercepting or recording private communications by means of the
devices enumerated therein. The mere allegation that an individual made a secret recording of a
private communication by means of a tape recorder would suffice to constitute an offense under
Section 1 of R.A. 4200. As the Solicitor General pointed out in his COMMENT before the
respondent court: "Nowhere (in the said law) is it required that before one can be regarded as a
violator, the nature of the conversation, as well as its communication to a third person should be
professed." 14

Finally, petitioner's contention that the phrase "private communication" in Section 1 of R.A.
4200 does not include "private conversations" narrows the ordinary meaning of the word
"communication" to a point of absurdity. The word communicate comes from the latin
word communicare, meaning "to share or to impart." In its ordinary signification,
communication connotes the act of sharing or imparting signification, communication connotes
the act of sharing or imparting, as in a conversation, 15 or signifies the "process by which
meanings or thoughts are shared between individuals through a common system of symbols (as
language signs or gestures)" 16 These definitions are broad enough to include verbal or non-
verbal, written or expressive communications of "meanings or thoughts" which are likely to
include the emotionally-charged exchange, on February 22, 1988, between petitioner and private
respondent, in the privacy of the latter's office. Any doubts about the legislative body's meaning
of the phrase "private communication" are, furthermore, put to rest by the fact that the terms
"conversation" and "communication" were interchangeably used by Senator Tañada in his
Explanatory Note to the bill quoted below:

It has been said that innocent people have nothing to fear from
their conversations being overheard. But this statement ignores the usual nature
of conversations as well the undeniable fact that most, if not all, civilized people
have some aspects of their lives they do not wish to expose. Free conversationsare
often characterized by exaggerations, obscenity, agreeable falsehoods, and the
expression of anti-social desires of views not intended to be taken seriously. The
right to the privacy of communication, among others, has expressly been assured
by our Constitution. Needless to state here, the framers of our Constitution must
have recognized the nature of conversations between individuals and the
significance of man's spiritual nature, of his feelings and of his intellect. They
must have known that part of the pleasures and satisfactions of life are to be found
in the unaudited, and free exchange of communication between individuals —
free from every unjustifiable intrusion by whatever means.17
In Gaanan vs. Intermediate Appellate Court, 18 a case which dealt with the issue of telephone
wiretapping, we held that the use of a telephone extension for the purpose of overhearing a
private conversation without authorization did not violate R.A. 4200 because a telephone
extension devise was neither among those "device(s) or arrangement(s)" enumerated
therein, 19 following the principle that "penal statutes must be construed strictly in favor of the
accused."20 The instant case turns on a different note, because the applicable facts and
circumstances pointing to a violation of R.A. 4200 suffer from no ambiguity, and the statute
itself explicitly mentions the unauthorized "recording" of private communications with the use of
tape-recorders as among the acts punishable.

WHEREFORE, because the law, as applied to the case at bench is clear and unambiguous and
leaves us with no discretion, the instant petition is hereby DENIED. The decision appealed from
is AFFIRMED. Costs against petitioner.

SO ORDERED.
8.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 110662 August 4, 1994

TERESITA SALCEDO-ORTANEZ, petitioner,

vs.
COURT OF APPEALS, HON. ROMEO F. ZAMORA, Presiding Judge, Br. 94, Regional Trial
Court of Quezon City and RAFAEL S. ORTANEZ, respondents.

Oscar A. Inocentes & Associates Law Office for petitioner.

Efren A. Santos for private respondent.

PADILLA, J.:

This is a petition for review under Rule 45 of the Rules of Court which seeks to reverse the
decision * of respondent Court of Appeals in CA-G. R. SP No. 28545 entitled "Teresita Salcedo-
Ortanez versus Hon. Romeo F. Zamora, Presiding Judge, Br. 94, Regional Trial Court of
Quezon City and Rafael S. Ortanez".

The relevant facts of the case are as follows:

On 2 May 1990, private respondent Rafael S. Ortanez filed with the Regional Trial Court of
Quezon City a complaint for annulment of marriage with damages against petitioner Teresita
Salcedo-Ortanez, on grounds of lack of marriage license and/or psychological incapacity of the
petitioner. The complaint was docketed as Civil Case No. Q-90-5360 and raffled to Branch 94,
RTC of Quezon City presided over by respondent Judge Romeo F. Zamora.

Private respondent, after presenting his evidence, orally formally offered in evidence Exhibits
"A" to "M".

Among the exhibits offered by private respondent were three (3) cassette tapes of alleged
telephone conversations between petitioner and unidentified persons.

Petitioner submitted her Objection/Comment to private respondent's oral offer of evidence on 9

June 1992; on the same day, the trial court admitted all of private respondent's offered evidence.

A motion for reconsideration from petitioner was denied on 23 June 1992.

A petition for certiorari was then filed by petitioner in the Court of Appeals assailing the
admission in evidence of the aforementioned cassette tapes.

On 10 June 1993, the Court of Appeals rendered judgment which is the subject of the present
petition, which in part reads:

It is much too obvious that the petition will have to fail, for two basic reasons:

(1) Tape recordings are not inadmissible per se. They and any other variant
thereof can be admitted in evidence for certain purposes, depending on how they
are presented and offered and on how the trial judge utilizes them in the interest
of truth and fairness and the even handed administration of justice.
 (2) A petition for certiorari is notoriously inappropriate to rectify a supposed
error in admitting evidence adduced during trial. The ruling on admissibility is
interlocutory; neither does it impinge on jurisdiction. If it is erroneous, the ruling
should be questioned in the appeal from the judgment on the merits and not
through the special civil action of certiorari. The error, assuming gratuitously that
it exists, cannot be anymore than an error of law, properly correctible by appeal
and not by certiorari. Otherwise, we will have the sorry spectacle of a case being
subject of a counterproductive "ping-pong" to and from the appellate court as
often as a trial court is perceived to have made an error in any of its rulings with
respect to evidentiary matters in the course of trial. This we cannot sanction.

WHEREFORE, the petition for certiorari being devoid of merit, is hereby

DISMISSED. 1

From this adverse judgment, petitioner filed the present petition for review, stating:

Grounds for Allowance of the Petition

10. The decision of respondent [Court of Appeals] has no basis in law nor
previous decision of the Supreme Court.

10.1 In affirming the questioned order of respondent judge, the

Court of Appeals has decided a question of substance not
theretofore determined by the Supreme Court as the question of
admissibility in evidence of tape recordings has not, thus far, been
addressed and decided squarely by the Supreme Court.

11. In affirming the questioned order of respondent judge, the Court of Appeals
has likewise rendered a decision in a way not in accord with law and with
applicable decisions of the Supreme Court.

11.1 Although the questioned order is interlocutory in nature, the

same can still be [the] subject of a petition for certiorari. 2

The main issue to be resolved is whether or not the remedy of certiorari under Rule 65 of the
Rules of Court was properly availed of by the petitioner in the Court of Appeals.

The extraordinary writ of certiorari is generally not available to challenge an interlocutory order
of a trial court. The proper remedy in such cases is an ordinary appeal from an adverse judgment,
incorporating in said appeal the grounds for assailing the interlocutory order.

However, where the assailed interlocutory order is patently erroneous and the remedy of appeal
would not afford adequate and expeditious relief, the Court may allow certiorari as a mode of
redress. 3

In the present case, the trial court issued the assailed order admitting all of the evidence offered
by private respondent, including tape recordings of telephone conversations of petitioner with
unidentified persons. These tape recordings were made and obtained when private respondent
allowed his friends from the military to wire tap his home telephone. 4

Rep. Act No. 4200 entitled "An Act to Prohibit and Penalize Wire Tapping and Other Related
Violations of the Privacy of Communication, and for other purposes" expressly makes such tape
recordings inadmissible in evidence. The relevant provisions of Rep. Act No. 4200 are as
follows:

Sec. 1. It shall be unlawful for any person, not being authorized by all the
parties to any private communication or spoken word, to tap any wire or
cable, or by using any other device or arrangement, to secretly overhear,
intercept, or record such communication or spoken word by using a device
commonly known as a dictaphone or dictagraph or detectaphone or
walkie-talkie or tape-recorder, or however otherwise described. . . .
 Sec. 4. Any communication or spoken word, or the existence, contents,
substance, purport, or meaning of the same or any part thereof, or any
information therein contained, obtained or secured by any person in
violation of the preceding sections of this Act shall not be admissible in
evidence in any judicial, quasi-judicial, legislative or administrative
hearing or investigation.

Clearly, respondents trial court and Court of Appeals failed to consider the afore-quoted
provisions of the law in admitting in evidence the cassette tapes in question. Absent a clear
showing that both parties to the telephone conversations allowed the recording of the same, the
inadmissibility of the subject tapes is mandatory under Rep. Act No. 4200.

Additionally, it should be mentioned that the above-mentioned Republic Act in Section 2 thereof
imposes a penalty of imprisonment of not less than six (6) months and up to six (6) years for
violation of said Act. 5

We need not address the other arguments raised by the parties, involving the applicability of
American jurisprudence, having arrived at the conclusion that the subject cassette tapes are
inadmissible in evidence under Philippine law.

WHEREFORE, the decision of the Court of Appeals in CA-G. R. SP No. 28545 is hereby SET
ASIDE. The subject cassette tapes are declared inadmissible in evidence.

SO ORDERED.
9.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-69809 October 16, 1986

EDGARDO A. GAANAN, petitioner,

vs.
INTERMEDIATE APPELLATE COURT and PEOPLE OF THE PHILIPPINES, respondents.

GUTIERREZ, JR., J.:

This petition for certiorari asks for an interpretation of Republic Act (RA) No. 4200, otherwise
known as the Anti-Wiretapping Act, on the issue of whether or not an extension telephone is
among the prohibited devices in Section 1 of the Act, such that its use to overhear a private
conversation would constitute unlawful interception of communications between the two parties
using a telephone line.

The facts presented by the People and narrated in the respondent court's decision are not disputed
by the petitioner.

In the morning of October 22, 1975, complainant Atty. Tito Pintor and his client
Manuel Montebon were in the living room of complainant's residence discussing
the terms for the withdrawal of the complaint for direct assault which they filed
with the Office of the City Fiscal of Cebu against Leonardo Laconico. After they
had decided on the proposed conditions, complainant made a telephone call to
Laconico (tsn, August 26, 1981, pp. 3-5).

That same morning, Laconico telephoned appellant, who is a lawyer, to come to

his office and advise him on the settlement of the direct assault case because his
regular lawyer, Atty. Leon Gonzaga, went on a business trip. According to the
request, appellant went to the office of Laconico where he was briefed about the
problem. (Exhibit 'D', tsn, April 22, 1982, pp. 4-5).

When complainant called up, Laconico requested appellant to secretly listen to the
telephone conversation through a telephone extension so as to hear personally the
proposed conditions for the settlement. Appellant heard complainant enumerate
the following conditions for withdrawal of the complaint for direct assault.

(a) the P5,000.00 was no longer acceptable, and that the figure had been increased
to P8,000.00. A breakdown of the P8,000.00 had been made together with other
demands, to wit: (a) P5,000.00 no longer for the teacher Manuel Montebon, but
for Atty. Pintor himself in persuading his client to withdraw the case for Direct
Assault against Atty. Laconico before the Cebu City Fiscal's Office;

(b) Public apology to be made by Atty. Laconico before the students of Don
Bosco Technical High School;

(c) Pl,000.00 to be given to the Don Bosco Faculty club;

(d) transfer of son of Atty. Laconico to another school or another section of Don
Bosco Technical High School;

(e) Affidavit of desistance by Atty. Laconico on the Maltreatment case earlier

filed against Manuel Montebon at the Cebu City Fiscal's Office, whereas
 Montebon's affidavit of desistance on the Direct Assault Case against Atty.
Laconico to be filed later;

(f) Allow Manuel Montebon to continue teaching at the Don Bosco Technical
School;

(g) Not to divulge the truth about the settlement of the Direct Assault Case to the
mass media;

(h) P2,000.00 attorney s fees for Atty. Pintor. (tsn, August 26, 1981, pp. 47-48).

Twenty minutes later, complainant called up again to ask Laconico if he was

agreeable to the conditions. Laconico answered 'Yes'. Complainant then told
Laconico to wait for instructions on where to deliver the money. (tsn, March 10,
1983, pp. 2-12).

Complainant called up again and instructed Laconico to give the money to his
wife at the office of the then Department of Public Highways. Laconico who
earlier alerted his friend Colonel Zulueta of the Criminal Investigation Service of
the Philippine Constabulary, insisted that complainant himself should receive the
money. (tsn, March 10, 1982, pp. 26-33). When he received the money at the
Igloo Restaurant, complainant was arrested by agents of the Philippine
Constabulary.

Appellant executed on the following day an affidavit stating that he heard

complainant demand P8,000.00 for the withdrawal of the case for direct assault.
Laconico attached the affidavit of appellant to the complainant for
robbery/extortion which he filed against complainant. Since appellant listened to
the telephone conversation without complainant's consent, complainant charged
appellant and Laconico with violation of the Anti-Wiretapping Act.

After trial on the merits, the lower court, in a decision dated November 22, 1982, found both
Gaanan and Laconico guilty of violating Section 1 of Republic Act No. 4200. The two were each
sentenced to one (1) year imprisonment with costs. Not satisfied with the decision, the petitioner
appealed to the appellate court.

On August 16, 1984, the Intermediate Appellate Court affirmed the decision of the trial court,
holding that the communication between the complainant and accused Laconico was private in
nature and, therefore, covered by Rep. Act No. 4200; that the petitioner overheard such
communication without the knowledge and consent of the complainant; and that the extension
telephone which was used by the petitioner to overhear the telephone conversation between
complainant and Laconico is covered in the term "device' as provided in Rep. Act No. 4200.

In this petition for certiorari, the petitioner assails the decision of the appellate court and raises
the following issues; (a) whether or not the telephone conversation between the complainant and
accused Laconico was private in nature; (b) whether or not an extension telephone is covered by
the term "device or arrangement" under Rep. Act No. 4200; (c) whether or not the petitioner had
authority to listen or overhear said telephone conversation and (d) whether or not Rep. Act No.
4200 is ambiguous and, therefore, should be construed in favor of the petitioner.

Section 1 of Rep. Act No. 4200 provides:

Section 1. It shall be unlawful for any person, not being authorized by all the
parties to any private communication or spoken word, to tap any wire or cable or
by using any other device or arrangement, to secretly overhear, intercept, or
record such communication or spoken word by using a device commonly known
as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape-recorder, or
however otherwise described:

It shall be unlawful for any person, be he a participant or not in the act or acts
penalized in the next preceeding sentence, to knowingly possess any tape record,
wire record, disc record, or any other such record, or copies thereof, of any
 communication or spoken word secured either before or after the effective date of
this Act in the manner prohibited by this law; or to replay the same for any other
person or persons; or to communicate the contents thereof, either verbally or in
writing, or to furnish transcriptions thereof, whether complete or partial, to any
other person: Provided, that the use of such record or any copies thereof as
evidence in any civil, criminal investigation or trial of offenses mentioned in
Section 3 hereof, shall not be covered by this prohibition.

We rule for the petitioner.

We are confronted in this case with the interpretation of a penal statute and not a rule of
evidence. The issue is not the admissibility of evidence secured over an extension line of a
telephone by a third party. The issue is whether or not the person called over the telephone and
his lawyer listening to the conversation on an extension line should both face prison sentences
simply because the extension was used to enable them to both listen to an alleged attempt at
extortion.

There is no question that the telephone conversation between complainant Atty. Pintor and
accused Atty. Laconico was "private" in the sense that the words uttered were made between one
person and another as distinguished from words between a speaker and a public. It is also
undisputed that only one of the parties gave the petitioner the authority to listen to and overhear
the caller's message with the use of an extension telephone line. Obviously, complainant Pintor, a
member of the Philippine bar, would not have discussed the alleged demand for an P8,000.00
consideration in order to have his client withdraw a direct assault charge against Atty. Laconico
filed with the Cebu City Fiscal's Office if he knew that another lawyer was also listening. We
have to consider, however, that affirmance of the criminal conviction would, in effect, mean that
a caller by merely using a telephone line can force the listener to secrecy no matter how obscene,
criminal, or annoying the call may be. It would be the word of the caller against the listener's.

Because of technical problems caused by the sensitive nature of electronic equipment and the
extra heavy loads which telephone cables are made to carry in certain areas, telephone users
often encounter what are called "crossed lines". An unwary citizzen who happens to pick up his
telephone and who overhears the details of a crime might hesitate to inform police authorities if
he knows that he could be accused under Rep. Act 4200 of using his own telephone to secretly
overhear the private communications of the would be criminals. Surely the law was never
intended for such mischievous results.

The main issue in the resolution of this petition, however, revolves around the meaning of the
phrase "any other device or arrangement." Is an extension of a telephone unit such a device or
arrangement as would subject the user to imprisonment ranging from six months to six years
with the accessory penalty of perpetual absolute disqualification for a public officer or
deportation for an alien? Private secretaries with extension lines to their bosses' telephones are
sometimes asked to use answering or recording devices to record business conversations between
a boss and another businessman. Would transcribing a recorded message for the use of the boss
be a proscribed offense? or for that matter, would a "party line" be a device or arrangement under
the law?

The petitioner contends that telephones or extension telephones are not included in the
enumeration of "commonly known" listening or recording devices, nor do they belong to the
same class of enumerated electronic devices contemplated by law. He maintains that in 1964,
when Senate Bill No. 9 (later Rep. Act No. 4200) was being considered in the Senate, telephones
and extension telephones were already widely used instruments, probably the most popularly
known communication device.

Whether or not listening over a telephone party line would be punishable was discussed on the
floor of the Senate. Yet, when the bill was finalized into a statute, no mention was made of
telephones in the enumeration of devices "commonly known as a dictaphone or dictagraph,
detectaphone or walkie talkie or tape recorder or however otherwise described." The omission
was not a mere oversight. Telephone party lines were intentionally deleted from the provisions of
the Act.
The respondent People argue that an extension telephone is embraced and covered by the term
"device" within the context of the aforementioned law because it is not a part or portion of a
complete set of a telephone apparatus. It is a separate device and distinct set of a movable
apparatus consisting of a wire and a set of telephone receiver not forming part of a main
telephone set which can be detached or removed and can be transferred away from one place to
another and to be plugged or attached to a main telephone line to get the desired communication
corning from the other party or end.

The law refers to a "tap" of a wire or cable or the use of a "device or arrangement" for the
purpose of secretly overhearing, intercepting, or recording the communication. There must be
either a physical interruption through a wiretap or the deliberate installation of a device or
arrangement in order to overhear, intercept, or record the spoken words.

An extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the
other devices enumerated in Section 1 of RA No. 4200 as the use thereof cannot be considered as
"tapping" the wire or cable of a telephone line. The telephone extension in this case was not
installed for that purpose. It just happened to be there for ordinary office use. It is a rule in
statutory construction that in order to determine the true intent of the legislature, the particular
clauses and phrases of the statute should not be taken as detached and isolated expressions, but
the whole and every part thereof must be considered in fixing the meaning of any of its parts.
(see Commissioner of Customs v. Esso Estandard Eastern, Inc., 66 SCRA 113,120).

In the case of Empire Insurance Com any v. Rufino (90 SCRA 437, 443-444), we ruled:

Likewise, Article 1372 of the Civil Code stipulates that 'however general the
terms of a contract may be, they shall not be understood to comprehend things
that are distinct and cases that are different from those upon which the parties
intended to agree.' Similarly, Article 1374 of the same Code provides that 'the
various stipulations of a contract shall be interpreted together, attributing to the
doubtful ones that sense which may result from all of them taken jointly.

xxx xxx xxx

Consequently, the phrase 'all liabilities or obligations of the decedent' used in

paragraph 5(c) and 7(d) should be then restricted only to those listed in the
Inventory and should not be construed as to comprehend all other obligations of
the decedent. The rule that 'particularization followed by a general expression will
ordinarily be restricted to the former' is based on the fact in human experience
that usually the minds of parties are addressed specially to the particularization,
and that the generalities, though broad enough to comprehend other fields if they
stood alone, are used in contemplation of that upon which the minds of the parties
are centered. (Hoffman v. Eastern Wisconsin R., etc., Co., 134 Wis. 603, 607, 115
NW 383, cited in Francisco, Revised Rules of Court (Evidence), 1973 ed, pp.
180-181).

Hence, the phrase "device or arrangement" in Section 1 of RA No. 4200, although not exclusive
to that enumerated therein, should be construed to comprehend instruments of the same or
similar nature, that is, instruments the use of which would be tantamount to tapping the main
line of a telephone. It refers to instruments whose installation or presence cannot be presumed by
the party or parties being overheard because, by their very nature, they are not of common usage
and their purpose is precisely for tapping, intercepting or recording a telephone conversation.

An extension telephone is an instrument which is very common especially now when the
extended unit does not have to be connected by wire to the main telephone but can be moved
from place ' to place within a radius of a kilometer or more. A person should safely presume that
the party he is calling at the other end of the line probably has an extension telephone and he
runs the risk of a third party listening as in the case of a party line or a telephone unit which
shares its line with another. As was held in the case of Rathbun v. United States (355, U.S. 107, 2
L Ed 2d 137-138):

Common experience tells us that a call to a particular telephone number may

cause the bell to ring in more than one ordinarily used instrument. Each party to a
 telephone conversation takes the risk that the other party may have an extension
telephone and may allow another to overhear the conversation. When such takes
place there has been no violation of any privacy of which the parties may
complain. Consequently, one element of 605, interception, has not occurred.

In the same case, the Court further ruled that the conduct of the party would differ in no way if
instead of repeating the message he held out his hand-set so that another could hear out of it and
that there is no distinction between that sort of action and permitting an outsider to use an
extension telephone for the same purpose.

Furthermore, it is a general rule that penal statutes must be construed strictly in favor of the
accused. Thus, in case of doubt as in the case at bar, on whether or not an extension telephone is
included in the phrase "device or arrangement", the penal statute must be construed as not
including an extension telephone. In the case of People v. Purisima, 86 SCRA 542, 562, we
explained the rationale behind the rule:

American jurisprudence sets down the reason for this rule to be the tenderness of
the law of the rights of individuals; the object is to establish a certain rule by
conformity to which mankind would be safe, and the discretion of the court
limited. (United States v. Harris, 177 US 305, 44 L Ed 780, 20 S Ct 609; Braffith
v. Virgin Islands (CA3) 26 F2d 646; Caudill v. State, 224 Ind 531, 69 NE2d;
Jennings v. Commonwealth, 109 VA 821,63 SE 1080, all cited in 73 Am Jur 2d
452). The purpose is not to enable a guilty person to escape punishment through a
technicality but to provide a precise definition of forbidden acts." (State v.
Zazzaro, 20 A 2d 737, quoted in Martin's Handbook on Statutory Construction,
Rev. Ed. pp. 183-184).

In the same case of Purisima, we also ruled that on the construction or interpretation of a
legislative measure, the primary rule is to search for and determine the intent and spirit of the
law. A perusal of the Senate Congressional Records will show that not only did our lawmakers
not contemplate the inclusion of an extension telephone as a prohibited device or arrangement"
but of greater importance, they were more concerned with penalizing the act of recording than
the act of merely listening to a telephone conversation.

xxx xxx xxx

Senator Tañada. Another possible objection to that is entrapment

which is certainly objectionable. It is made possible by special
amendment which Your Honor may introduce.

Senator Diokno.Your Honor, I would feel that entrapment would

be less possible with the amendment than without it, because with
the amendment the evidence of entrapment would only consist of
government testimony as against the testimony of the defendant.
With this amendment, they would have the right, and the
government officials and the person in fact would have the right to
tape record their conversation.

Senator Tañada. In case of entrapment, it would be the

government.

Senator Diokno. In the same way, under this provision, neither

party could record and, therefore, the court would be limited to
saying: "Okay, who is more credible, the police officers or the
defendant?" In these cases, as experienced lawyers, we know that
the Court go with the peace offices.

(Congressional Record, Vol. 111, No. 33, p. 628, March 12, 1964).

xxx xxx xxx

 Senator Diokno. The point I have in mind is that under these
conditions, with an agent outside listening in, he could falsify the
testimony and there is no way of checking it. But if you allow him
to record or make a recording in any form of what is happening,
then the chances of falsifying the evidence is not very much.

Senator Tañada. Your Honor, this bill is not intended to prevent

the presentation of false testimony. If we could devise a way by
which we could prevent the presentation of false testimony, it
would be wonderful. But what this bill intends to prohibit is the
use of tape record and other electronic devices to intercept private
conversations which later on will be used in court.

(Congressional Record, Vol. III, No. 33, March 12, 1964, p. 629).

It can be readily seen that our lawmakers intended to discourage, through punishment, persons
such as government authorities or representatives of organized groups from installing devices in
order to gather evidence for use in court or to intimidate, blackmail or gain some unwarranted
advantage over the telephone users. Consequently, the mere act of listening, in order to be
punishable must strictly be with the use of the enumerated devices in RA No. 4200 or others of
similar nature. We are of the view that an extension telephone is not among such devices or
arrangements.

WHEREFORE, the petition is GRANTED. The decision of the then Intermediate Appellate
Court dated August 16, 1984 is ANNULLED and SET ASIDE. The petitioner is hereby
ACQUITTED of the crime of violation of Rep. Act No. 4200, otherwise known as the Anti-
Wiretapping Act.

SO ORDERED.
10.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 181881 October 18, 2011

BRICCIO "Ricky" A. POLLO, Petitioner,

vs.
CHAIRPERSON KARINA CONSTANTINO-DAVID, DIRECTOR IV RACQUEL DE
GUZMAN BUENSALIDA, DIRECTOR IV LYDIA A. CASTILLO, DIRECTOR III
ENGELBERT ANTHONY D. UNITE AND THE CIVIL SERVICE
COMMISSION, Respondents.

DECISION

VILLARAMA, JR., J.:

This case involves a search of office computer assigned to a government employee who was
charged administratively and eventually dismissed from the service. The employee’s personal
files stored in the computer were used by the government employer as evidence of misconduct.

Before us is a petition for review on certiorari under Rule 45 which seeks to reverse and set aside
the Decision1dated October 11, 2007 and Resolution2 dated February 29, 2008 of the Court of
Appeals (CA). The CA dismissed the petition for certiorari (CA-G.R. SP No. 98224) filed by
petitioner Briccio "Ricky" A. Pollo to nullify the proceedings conducted by the Civil Service
Commission (CSC) which found him guilty of dishonesty, grave misconduct, conduct prejudicial
to the best interest of the service, and violation of Republic Act (R.A.) No. 6713 and penalized
him with dismissal.

The factual antecedents:

Petitioner is a former Supervising Personnel Specialist of the CSC Regional Office No. IV and
also the Officer-in-Charge of the Public Assistance and Liaison Division (PALD) under the
"Mamamayan Muna Hindi Mamaya Na" program of the CSC.

On January 3, 2007 at around 2:30 p.m., an unsigned letter-complaint addressed to respondent

CSC Chairperson Karina Constantino-David which was marked "Confidential" and sent through
a courier service (LBC) from a certain "Alan San Pascual" of Bagong Silang, Caloocan City, was
received by the Integrated Records Management Office (IRMO) at the CSC Central Office.
Following office practice in which documents marked "Confidential" are left unopened and
instead sent to the addressee, the aforesaid letter was given directly to Chairperson David.

The letter-complaint reads:

The Chairwoman
Civil Service Commission
Batasan Hills, Quezon City

Dear Madam Chairwoman,

Belated Merry Christmas and Advance Happy New Year!

As a concerned citizen of my beloved country, I would like to ask from you personally if it is just
alright for an employee of your agency to be a lawyer of an accused gov’t employee having a
pending case in the csc. I honestly think this is a violation of law and unfair to others and your
office.
I have known that a person have been lawyered by one of your attorny in the region 4 office. He
is the chief of the Mamamayan muna hindi mamaya na division. He have been helping many
who have pending cases in the Csc. The justice in our govt system will not be served if this will
continue. Please investigate this anomaly because our perception of your clean and good office is
being tainted.

Concerned Govt employee3

Chairperson David immediately formed a team of four personnel with background in information
technology (IT), and issued a memo directing them to conduct an investigation and specifically
"to back up all the files in the computers found in the Mamamayan Muna (PALD) and Legal
divisions."4 After some briefing, the team proceeded at once to the CSC-ROIV office at Panay
Avenue, Quezon City. Upon their arrival thereat around 5:30 p.m., the team informed the
officials of the CSC-ROIV, respondents Director IV Lydia Castillo (Director Castillo) and
Director III Engelbert Unite (Director Unite) of Chairperson David’s directive.

The backing-up of all files in the hard disk of computers at the PALD and Legal Services
Division (LSD) was witnessed by several employees, together with Directors Castillo and Unite
who closely monitored said activity. At around 6:00 p.m., Director Unite sent text messages to
petitioner and the head of LSD, who were both out of the office at the time, informing them of
the ongoing copying of computer files in their divisions upon orders of the CSC Chair. The text
messages received by petitioner read:

"Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs of PALD and LSD
per instruction of the Chairman. If you can make it here now it would be better."

"All PCs Of PALD and LSD are being backed up per memo of the chair."

"CO IT people arrived just now for this purpose. We were not also informed about this.

"We can’t do anything about … it … it’s a directive from chair."

"Memo of the chair was referring to an anonymous complaint"; "ill send a copy of the
memo via mms"5

Petitioner replied also thru text message that he was leaving the matter to Director Unite and that
he will just get a lawyer. Another text message received by petitioner from PALD staff also
reported the presence of the team from CSC main office: "Sir may mga taga C.O. daw sa kuarto
natin."6 At around 10:00 p.m. of the same day, the investigating team finished their task. The
next day, all the computers in the PALD were sealed and secured for the purpose of preserving
all the files stored therein. Several diskettes containing the back-up files sourced from the hard
disk of PALD and LSD computers were turned over to Chairperson David. The contents of the
diskettes were examined by the CSC’s Office for Legal Affairs (OLA). It was found that most of
the files in the 17 diskettes containing files copied from the computer assigned to and being used
by the petitioner, numbering about 40 to 42 documents, were draft pleadings or letters7 in
connection with administrative cases in the CSC and other tribunals. On the basis of this finding,
Chairperson David issued the Show-Cause Order8 dated January 11, 2007, requiring the
petitioner, who had gone on extended leave, to submit his explanation or counter-affidavit within
five days from notice.

Evaluating the subject documents obtained from petitioner’s personal files, Chairperson David
made the following observations:

Most of the foregoing files are drafts of legal pleadings or documents that are related to or
connected with administrative cases that may broadly be lumped as pending either in the CSCRO
No. IV, the CSC-NCR, the CSC-Central Office or other tribunals. It is also of note that most of
these draft pleadings are for and on behalves of parties, who are facing charges as respondents in
administrative cases. This gives rise to the inference that the one who prepared them was
knowingly, deliberately and willfully aiding and advancing interests adverse and inimical to the
interest of the CSC as the central personnel agency of the government tasked to discipline
misfeasance and malfeasance in the government service. The number of pleadings so prepared
further demonstrates that such person is not merely engaged in an isolated practice but pursues it
with seeming regularity. It would also be the height of naivete or credulity, and certainly against
common human experience, to believe that the person concerned had engaged in this customary
practice without any consideration, and in fact, one of the retrieved files (item 13 above) appears
to insinuate the collection of fees. That these draft pleadings were obtained from the computer
assigned to Pollo invariably raises the presumption that he was the one responsible or had a hand
in their drafting or preparation since the computer of origin was within his direct control and
disposition.9

Petitioner filed his Comment, denying that he is the person referred to in the anonymous letter-
complaint which had no attachments to it, because he is not a lawyer and neither is he
"lawyering" for people with cases in the CSC. He accused CSC officials of conducting a "fishing
expedition" when they unlawfully copied and printed personal files in his computer, and
subsequently asking him to submit his comment which violated his right against self-
incrimination. He asserted that he had protested the unlawful taking of his computer done while
he was on leave, citing the letter dated January 8, 2007 in which he informed Director Castillo
that the files in his computer were his personal files and those of his sister, relatives, friends and
some associates and that he is not authorizing their sealing, copying, duplicating and printing as
these would violate his constitutional right to privacy and protection against self-incrimination
and warrantless search and seizure. He pointed out that though government property, the
temporary use and ownership of the computer issued under a Memorandum of Receipt (MR) is
ceded to the employee who may exercise all attributes of ownership, including its use for
personal purposes. As to the anonymous letter, petitioner argued that it is not actionable as it
failed to comply with the requirements of a formal complaint under the Uniform Rules on
Administrative Cases in the Civil Service (URACC). In view of the illegal search, the
files/documents copied from his computer without his consent is thus inadmissible as evidence,
being "fruits of a poisonous tree."10

On February 26, 2007, the CSC issued Resolution No. 07038211 finding prima facie case against
the petitioner and charging him with Dishonesty, Grave Misconduct, Conduct Prejudicial to the
Best Interest of the Service and Violation of R.A. No. 6713 (Code of Conduct and Ethical
Standards for Public Officials and Employees). Petitioner was directed to submit his answer
under oath within five days from notice and indicate whether he elects a formal investigation.
Since the charges fall under Section 19 of the URACC, petitioner was likewise placed under 90
days preventive suspension effective immediately upon receipt of the resolution. Petitioner
received a copy of Resolution No. 070382 on March 1, 2007.

Petitioner filed an Omnibus Motion (For Reconsideration, to Dismiss and/or to Defer) assailing
the formal charge as without basis having proceeded from an illegal search which is beyond the
authority of the CSC Chairman, such power pertaining solely to the court. Petitioner reiterated
that he never aided any people with pending cases at the CSC and alleged that those files found
in his computer were prepared not by him but by certain persons whom he permitted, at one time
or another, to make use of his computer out of close association or friendship. Attached to the
motion were the affidavit of Atty. Ponciano R. Solosa who entrusted his own files to be kept at
petitioner’s CPU and Atty. Eric N. Estrellado, the latter being Atty. Solosa’s client who attested
that petitioner had nothing to do with the pleadings or bill for legal fees because in truth he owed
legal fees to Atty. Solosa and not to petitioner. Petitioner contended that the case should be
deferred in view of the prejudicial question raised in the criminal complaint he filed before the
Ombudsman against Director Buensalida, whom petitioner believes had instigated this
administrative case. He also prayed for the lifting of the preventive suspension imposed on him.
In its Resolution No. 07051912 dated March 19, 2007, the CSC denied the omnibus motion. The
CSC resolved to treat the said motion as petitioner’s answer.

On March 14, 2007, petitioner filed an Urgent Petition13 under Rule 65 of the Rules of Court,
docketed as CA-G.R. SP No. 98224, assailing both the January 11, 2007 Show-Cause Order and
Resolution No. 070382 dated February 26, 2007 as having been issued with grave abuse of
discretion amounting to excess or total absence of jurisdiction. Prior to this, however, petitioner
lodged an administrative/criminal complaint against respondents Directors Racquel D.G.
Buensalida (Chief of Staff, Office of the CSC Chairman) and Lydia A. Castillo (CSC-RO IV)
before the Office of the Ombudsman, and a separate complaint for disbarment against Director
Buensalida.14

On April 17, 2007, petitioner received a notice of hearing from the CSC setting the formal
investigation of the case on April 30, 2007. On April 25, 2007, he filed in the CA an Urgent
Motion for the issuance of TRO and preliminary injunction.15 Since he failed to attend the pre-
hearing conference scheduled on April 30, 2007, the CSC reset the same to May 17, 2007 with
warning that the failure of petitioner and/or his counsel to appear in the said pre-hearing
conference shall entitle the prosecution to proceed with the formal investigation ex-
parte.16 Petitioner moved to defer or to reset the pre-hearing conference, claiming that the
investigation proceedings should be held in abeyance pending the resolution of his petition by
the CA. The CSC denied his request and again scheduled the pre-hearing conference on May 18,
2007 with similar warning on the consequences of petitioner and/or his counsel’s non-
appearance.17 This prompted petitioner to file another motion in the CA, to cite the respondents,
including the hearing officer, in indirect contempt.18

On June 12, 2007, the CSC issued Resolution No. 07113419 denying petitioner’s motion to set
aside the denial of his motion to defer the proceedings and to inhibit the designated hearing
officer, Atty. Bernard G. Jimenez. The hearing officer was directed to proceed with the
investigation proper with dispatch.

In view of the absence of petitioner and his counsel, and upon the motion of the prosecution,
petitioner was deemed to have waived his right to the formal investigation which then proceeded
ex parte.

On July 24, 2007, the CSC issued Resolution No. 071420,20 the dispositive part of which reads:

WHEREFORE, foregoing premises considered, the Commission hereby finds Briccio A.

Pollo, a.k.a. Ricky A. Pollo GUILTY of Dishonesty, Grave Misconduct, Conduct Prejudicial to
the Best Interest of the Service and Violation of Republic Act 6713. He is meted the penalty of
DISMISSAL FROM THE SERVICE with all its accessory penalties, namely, disqualification to
hold public office, forfeiture of retirement benefits, cancellation of civil service eligibilities and
bar from taking future civil service examinations.21

On the paramount issue of the legality of the search conducted on petitioner’s computer, the CSC
noted the dearth of jurisprudence relevant to the factual milieu of this case where the government
as employer invades the private files of an employee stored in the computer assigned to him for
his official use, in the course of initial investigation of possible misconduct committed by said
employee and without the latter’s consent or participation. The CSC thus turned to relevant
rulings of the United States Supreme Court, and cited the leading case of O’Connor v. Ortega22as
authority for the view that government agencies, in their capacity as employers, rather than law
enforcers, could validly conduct search and seizure in the governmental workplace without
meeting the "probable cause" or warrant requirement for search and seizure. Another ruling cited
by the CSC is the more recent case of United States v. Mark L. Simons23 which declared that the
federal agency’s computer use policy foreclosed any inference of reasonable expectation of
privacy on the part of its employees. Though the Court therein recognized that such policy did
not, at the same time, erode the respondent’s legitimate expectation of privacy in the office in
which the computer was installed, still, the warrantless search of the employee’s office was
upheld as valid because a government employer is entitled to conduct a warrantless search
pursuant to an investigation of work-related misconduct provided the search is reasonable in its
inception and scope.

With the foregoing American jurisprudence as benchmark, the CSC held that petitioner has no
reasonable expectation of privacy with regard to the computer he was using in the regional office
in view of the CSC computer use policy which unequivocally declared that a CSC employee
cannot assert any privacy right to a computer assigned to him. Even assuming that there was no
such administrative policy, the CSC was of the view that the search of petitioner’s computer
successfully passed the test of reasonableness for warrantless searches in the workplace as
enunciated in the aforecited authorities. The CSC stressed that it pursued the search in its
capacity as government employer and that it was undertaken in connection with an investigation
involving work-related misconduct, which exempts it from the warrant requirement under the
Constitution. With the matter of admissibility of the evidence having been resolved, the CSC
then ruled that the totality of evidence adequately supports the charges of grave misconduct,
dishonesty, conduct prejudicial to the best interest of the service and violation of R.A. No. 6713
against the petitioner. These grave infractions justified petitioner’s dismissal from the service
with all its accessory penalties.
In his Memorandum24 filed in the CA, petitioner moved to incorporate the above resolution
dismissing him from the service in his main petition, in lieu of the filing of an appeal via a Rule
43 petition. In a subsequent motion, he likewise prayed for the inclusion of Resolution No.
07180025 which denied his motion for reconsideration.

By Decision dated October 11, 2007, the CA dismissed the petition for certiorari after finding no
grave abuse of discretion committed by respondents CSC officials. The CA held that: (1)
petitioner was not charged on the basis of the anonymous letter but from the initiative of the CSC
after a fact-finding investigation was conducted and the results thereof yielded a prima facie case
against him; (2) it could not be said that in ordering the back-up of files in petitioner’s computer
and later confiscating the same, Chairperson David had encroached on the authority of a judge in
view of the CSC computer policy declaring the computers as government property and that
employee-users thereof have no reasonable expectation of privacy in anything they create, store,
send, or receive on the computer system; and (3) there is nothing contemptuous in CSC’s act of
proceeding with the formal investigation as there was no restraining order or injunction issued by
the CA.

His motion for reconsideration having been denied by the CA, petitioner brought this appeal
arguing that –

THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED AND

COMMITTED SERIOUS IRREGULARITY AND BLATANT ERRORS IN LAW
AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT
ANONYMOUS COMPLAINT IS ACTIONABLE UNDER E.O. 292 WHEN IN
TRUTH AND IN FACT THE CONTRARY IS EXPLICITLY PROVIDED UNDER 2nd
PARAGRAPH OF SECTION 8 OF CSC RESOLUTION NO. 99-1936, WHICH IS AN
[AMENDMENT] TO THE ORIGINAL RULES PER CSC RESOLUTION NO. 94-0521;

II

THE HONORABLE COURT GRIEVOUSLY ERRED AND COMMITTED

PALPABLE ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION
WHEN IT RULED THAT PETITIONER CANNOT INVOKE HIS RIGHT TO
PRIVACY, TO UNREASONABLE SEARCH AND SEIZURE, AGAINST SELF-
INCRIMINATION, BY VIRTUE OF OFFICE MEMORANDUM NO. 10 S. 2002, A
MERE INTERNAL MEMORANDUM SIGNED SOLELY AND EXCLUSIVELY BY
RESPONDENT DAVID AND NOT BY THE COLLEGIAL COMMISSION
CONSIDERING THAT POLICY MATTERS INVOLVING SUB[S]TANTIAL RIGHTS
CANNOT BE COVERED BY AN OFFICE MEMORANDUM WHICH IS LIMITED
TO PROCEDURAL AND ROUTINARY INSTRUCTION;

III

THE HONORABLE COURT GRAVELY ERRED AND COMMITTED GRAVE

ABUSE OF DISCRETION WHEN IT RULED THAT MEMO SEARCH DATED
JANUARY 3, 2007 AND THE TAKING OF DOCUMENTS IN THE EVENING
THEREOF FROM 7:00 TO 10:00 P.M. IS NOT GRAVE ABUSE OF DISCRETION
LIMITING THE DEFINITION [OF] GRAVE ABUSE OF DISCRETION TO ONE
INVOLVING AND TAINTED WITH PERSONAL HOSTILITY. IT
LIKEWISE ERRED IN HOLDING THAT DATA STORED IN THE GOVERNMENT
COMPUTERS ARE GOVERNMENT PROPERTIES INCLUDING THE PERSONAL
FILES WHEN THE CONTRARY IS PROVIDED UNDER SECTION 14 OF OM. 10 s.
2002. AND GRIEVOUSLY ERRED STILL WHEN IT RULED THAT RESPONDENT
DAVID BY VIRTUE OF O.M. 10 DID NOT ENCROACH ON THE DUTIES AND
FUNCTIONS OF A JUDGE PURSUANT TO ARTICLE III, SECTION 2 OF THE 1987
PHILIPPINE CONSTITUTION;

IV
 THE HONORABLE COURT ERRED WHEN IT FAILED TO CONSIDER ALL
OTHER NEW ARGUMENTS, ADDITIONAL EVIDENCE HEREUNTO SUBMITTED
AS WELL AS ITS FAILURE TO EVALUATE AND TAKE ACTION ON THE 2
MOTIONS TO ADMIT AND INCORPORATE CSC RESOLUTION NOS. 07-1420
DATED JULY 24, 2007 AND CSC RESOLUTION 07-1800 DATED SEPTEMBER 10,
2007. IT DID NOT RULE LIKEWISE ON THE FOUR URGENT MOTION TO
RESOLVE ANCILLARY PRAYER FOR TRO.26

Squarely raised by the petitioner is the legality of the search conducted on his office computer
and the copying of his personal files without his knowledge and consent, alleged as a
transgression on his constitutional right to privacy.

The right to privacy has been accorded recognition in this jurisdiction as a facet of the right
protected by the guarantee against unreasonable search and seizure under Section 2, Article III of
the 1987 Constitution,27 which provides:

Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.

The constitutional guarantee is not a prohibition of all searches and seizures but only of
"unreasonable" searches and seizures.28 But to fully understand this concept and application for
the purpose of resolving the issue at hand, it is essential that we examine the doctrine in the light
of pronouncements in another jurisdiction. As the Court declared in People v. Marti29 :

Our present constitutional provision on the guarantee against unreasonable search and seizure
had its origin in the 1935 Charter which, worded as follows:

"The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon
probable cause, to be determined by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched, and the persons or things to be seized." (Sec. 1[3], Article III)

was in turn derived almost verbatim from the Fourth Amendment to the United States
Constitution. As such, the Court may turn to the pronouncements of the United States Federal
Supreme Court and State Appellate Courts which are considered doctrinal in this jurisdiction.30

In the 1967 case of Katz v. United States,31 the US Supreme Court held that the act of FBI agents
in electronically recording a conversation made by petitioner in an enclosed public telephone
booth violated his right to privacy and constituted a "search and seizure". Because the petitioner
had a reasonable expectation of privacy in using the enclosed booth to make a personal telephone
call, the protection of the Fourth Amendment extends to such area. In the concurring opinion of
Mr. Justice Harlan, it was further noted that the existence of privacy right under prior decisions
involved a two-fold requirement: first, that a person has exhibited an actual (subjective)
expectation of privacy; and second, that the expectation be one that society is prepared to
recognize as reasonable (objective).32

In Mancusi v. DeForte33 which addressed the reasonable expectations of private employees in the
workplace, the US Supreme Court held that a union employee had Fourth Amendment rights
with regard to an office at union headquarters that he shared with other union officials, even as
the latter or their guests could enter the office. The Court thus "recognized that employees may
have a reasonable expectation of privacy against intrusions by police."

That the Fourth Amendment equally applies to a government workplace was addressed in the
1987 case of O’Connor v. Ortega34 where a physician, Dr. Magno Ortega, who was employed by
a state hospital, claimed a violation of his Fourth Amendment rights when hospital officials
investigating charges of mismanagement of the psychiatric residency program, sexual
harassment of female hospital employees and other irregularities involving his private patients
under the state medical aid program, searched his office and seized personal items from his desk
and filing cabinets. In that case, the Court categorically declared that "[i]ndividuals do not lose
Fourth Amendment rights merely because they work for the government instead of a private
employer."35 A plurality of four Justices concurred that the correct analysis has two steps: first,
because "some government offices may be so open to fellow employees or the public that no
expectation of privacy is reasonable", a court must consider "[t]he operational realities of the
workplace" in order to determine whether an employee’s Fourth Amendment rights are
implicated; and next, where an employee has a legitimate privacy expectation, an employer’s
intrusion on that expectation "for noninvestigatory, work-related purposes, as well as for
investigations of work-related misconduct, should be judged by the standard of reasonableness
under all the circumstances."36

On the matter of government employees’ reasonable expectations of privacy in their workplace,

O’Connor teaches:

x x x Public employees’ expectations of privacy in their offices, desks, and file cabinets, like
similar expectations of employees in the private sector, may be reduced by virtue of actual office
practices and procedures, or by legitimate regulation. x x x The employee’s expectation of
privacy must be assessed in the context of the employment relation. An office is seldom a private
enclave free from entry by supervisors, other employees, and business and personal invitees.
Instead, in many cases offices are continually entered by fellow employees and other visitors
during the workday for conferences, consultations, and other work-related visits. Simply put, it is
the nature of government offices that others – such as fellow employees, supervisors, consensual
visitors, and the general public – may have frequent access to an individual’s office. We agree
with JUSTICE SCALIA that "[c]onstitutional protection against unreasonable searches by the
government does not disappear merely because the government has the right to make reasonable
intrusions in its capacity as employer," x x x but some government offices may be so open to
fellow employees or the public that no expectation of privacy is reasonable. x x x Given the great
variety of work environments in the public sector, the question of whether an employee has a
reasonable expectation of privacy must be addressed on a case-by-case basis.37 (Citations
omitted; emphasis supplied.)

On the basis of the established rule in previous cases, the US Supreme Court declared that Dr.
Ortega’s Fourth Amendment rights are implicated only if the conduct of the hospital officials
infringed "an expectation of privacy that society is prepared to consider as reasonable." Given
the undisputed evidence that respondent Dr. Ortega did not share his desk or file cabinets with
any other employees, kept personal correspondence and other private items in his own office
while those work-related files (on physicians in residency training) were stored outside his
office, and there being no evidence that the hospital had established any reasonable regulation or
policy discouraging employees from storing personal papers and effects in their desks or file
cabinets (although the absence of such a policy does not create any expectation of privacy where
it would not otherwise exist), the Court concluded that Dr. Ortega has a reasonable expectation
of privacy at least in his desk and file cabinets.38

Proceeding to the next inquiry as to whether the search conducted by hospital officials was
reasonable, the O’Connor plurality decision discussed the following principles:

Having determined that Dr. Ortega had a reasonable expectation of privacy in his office, the
Court of Appeals simply concluded without discussion that the "search…was not a reasonable
search under the fourth amendment." x x x "[t]o hold that the Fourth Amendment applies to
searches conducted by [public employers] is only to begin the inquiry into the standards
governing such searches…[W]hat is reasonable depends on the context within which a search
takes place. x x x Thus, we must determine the appropriate standard of reasonableness applicable
to the search. A determination of the standard of reasonableness applicable to a particular class
of searches requires "balanc[ing] the nature and quality of the intrusion on the individual’s
Fourth Amendment interests against the importance of the governmental interests alleged to
justify the intrusion." x x x In the case of searches conducted by a public employer, we must
balance the invasion of the employees’ legitimate expectations of privacy against the
government’s need for supervision, control, and the efficient operation of the workplace.

xxxx
In our view, requiring an employer to obtain a warrant whenever the employer wished to enter an
employee’s office, desk, or file cabinets for a work-related purpose would seriously disrupt the
routine conduct of business and would be unduly burdensome. Imposing unwieldy warrant
procedures in such cases upon supervisors, who would otherwise have no reason to be familiar
with such procedures, is simply unreasonable. In contrast to other circumstances in which we
have required warrants, supervisors in offices such as at the Hospital are hardly in the business of
investigating the violation of criminal laws. Rather, work-related searches are merely incident to
the primary business of the agency. Under these circumstances, the imposition of a warrant
requirement would conflict with the "common-sense realization that government offices could
not function if every employment decision became a constitutional matter." x x x

xxxx

The governmental interest justifying work-related intrusions by public employers is the efficient
and proper operation of the workplace. Government agencies provide myriad services to the
public, and the work of these agencies would suffer if employers were required to have probable
cause before they entered an employee’s desk for the purpose of finding a file or piece of office
correspondence. Indeed, it is difficult to give the concept of probable cause, rooted as it is in the
criminal investigatory context, much meaning when the purpose of a search is to retrieve a file
for work-related reasons. Similarly, the concept of probable cause has little meaning for a routine
inventory conducted by public employers for the purpose of securing state property. x x x To
ensure the efficient and proper operation of the agency, therefore, public employers must be
given wide latitude to enter employee offices for work-related, noninvestigatory reasons.

We come to a similar conclusion for searches conducted pursuant to an investigation of work-

related employee misconduct. Even when employers conduct an investigation, they have an
interest substantially different from "the normal need for law enforcement." x x x Public
employers have an interest in ensuring that their agencies operate in an effective and efficient
manner, and the work of these agencies inevitably suffers from the inefficiency, incompetence,
mismanagement, or other work-related misfeasance of its employees. Indeed, in many cases,
public employees are entrusted with tremendous responsibility, and the consequences of their
misconduct or incompetence to both the agency and the public interest can be severe. In contrast
to law enforcement officials, therefore, public employers are not enforcers of the criminal law;
instead, public employers have a direct and overriding interest in ensuring that the work of the
agency is conducted in a proper and efficient manner. In our view, therefore, a probable cause
requirement for searches of the type at issue here would impose intolerable burdens on public
employers. The delay in correcting the employee misconduct caused by the need for probable
cause rather than reasonable suspicion will be translated into tangible and often irreparable
damage to the agency’s work, and ultimately to the public interest. x x x

xxxx

In sum, we conclude that the "special needs, beyond the normal need for law enforcement make
the…probable-cause requirement impracticable," x x x for legitimate, work-related
noninvestigatory intrusions as well as investigations of work-related misconduct. A standard of
reasonableness will neither unduly burden the efforts of government employers to ensure the
efficient and proper operation of the workplace, nor authorize arbitrary intrusions upon the
privacy of public employees. We hold, therefore, that public employer intrusions on the
constitutionally protected privacy interests of government employees for noninvestigatory, work-
related purposes, as well as for investigations of work-related misconduct, should be judged by
the standard of reasonableness under all the circumstances. Under this reasonableness
standard, both the inception and the scope of the intrusion must be reasonable:

"Determining the reasonableness of any search involves a twofold inquiry: first, one must
consider ‘whether the…action was justified at its inception,’ x x x ; second, one must determine
whether the search as actually conducted ‘was reasonably related in scope to the circumstances
which justified the interference in the first place,’" x x x

Ordinarily, a search of an employee’s office by a supervisor will be "justified at its inception"

when there are reasonable grounds for suspecting that the search will turn up evidence that the
employee is guilty of work-related misconduct, or that the search is necessary for a
noninvestigatory work-related purpose such as to retrieve a needed file. x x x The search will be
permissible in its scope when "the measures adopted are reasonably related to the objectives of
the search and not excessively intrusive in light of …the nature of the [misconduct]." x x
x39 (Citations omitted; emphasis supplied.)

Since the District Court granted summary judgment without a hearing on the factual dispute as to
the character of the search and neither was there any finding made as to the scope of the search
that was undertaken, the case was remanded to said court for the determination of the
justification for the search and seizure, and evaluation of the reasonableness of both the inception
of the search and its scope.

In O’Connor the Court recognized that "special needs" authorize warrantless searches involving
public employees for work-related reasons. The Court thus laid down a balancing test under
which government interests are weighed against the employee’s reasonable expectation of
privacy. This reasonableness test implicates neither probable cause nor the warrant requirement,
which are related to law enforcement.40

O’Connor was applied in subsequent cases raising issues on employees’ privacy rights in the
workplace. One of these cases involved a government employer’s search of an office computer,
United States v. Mark L. Simons41where the defendant Simons, an employee of a division of the
Central Intelligence Agency (CIA), was convicted of receiving and possessing materials
containing child pornography. Simons was provided with an office which he did not share with
anyone, and a computer with Internet access. The agency had instituted a policy on computer use
stating that employees were to use the Internet for official government business only and that
accessing unlawful material was specifically prohibited. The policy also stated that users shall
understand that the agency will periodically audit, inspect, and/or monitor the user’s Internet
access as deemed appropriate. CIA agents instructed its contractor for the management of the
agency’s computer network, upon initial discovery of prohibited internet activity originating
from Simons’ computer, to conduct a remote monitoring and examination of Simons’ computer.
After confirming that Simons had indeed downloaded pictures that were pornographic in nature,
all the files on the hard drive of Simon’s computer were copied from a remote work station. Days
later, the contractor’s representative finally entered Simon’s office, removed the original hard
drive on Simon’s computer, replaced it with a copy, and gave the original to the agency security
officer. Thereafter, the agency secured warrants and searched Simons’ office in the evening
when Simons was not around. The search team copied the contents of Simons’ computer;
computer diskettes found in Simons’ desk drawer; computer files stored on the zip drive or on
zip drive diskettes; videotapes; and various documents, including personal correspondence. At
his trial, Simons moved to suppress these evidence, arguing that the searches of his office and
computer violated his Fourth Amendment rights. After a hearing, the district court denied the
motion and Simons was found guilty as charged.

Simons appealed his convictions. The US Supreme Court ruled that the searches of Simons’
computer and office did not violate his Fourth Amendment rights and the first search warrant
was valid. It held that the search remains valid under the O’Connor exception to the warrant
requirement because evidence of the crime was discovered in the course of an otherwise proper
administrative inspection. Simons’ violation of the agency’s Internet policy happened also to be
a violation of criminal law; this does not mean that said employer lost the capacity and interests
of an employer. The warrantless entry into Simons’ office was reasonable under the Fourth
Amendment standard announced in O’Connor because at the inception of the search, the
employer had "reasonable grounds for suspecting" that the hard drive would yield evidence of
misconduct, as the employer was already aware that Simons had misused his Internet access to
download over a thousand pornographic images. The retrieval of the hard drive was reasonably
related to the objective of the search, and the search was not excessively intrusive. Thus, while
Simons had a reasonable expectation of privacy in his office, he did not have such legitimate
expectation of privacy with regard to the files in his computer.

x x x To establish a violation of his rights under the Fourth Amendment, Simons must first prove
that he had a legitimate expectation of privacy in the place searched or the item seized. x x x
And, in order to prove a legitimate expectation of privacy, Simons must show that his subjective
expectation of privacy is one that society is prepared to accept as objectively reasonable. x x x

xxxx
x x x We conclude that the remote searches of Simons’ computer did not violate his Fourth
Amendment rights because, in light of the Internet policy, Simons lacked a legitimate
expectation of privacy in the files downloaded from the Internet. Additionally, we conclude that
Simons’ Fourth Amendment rights were not violated by FBIS’ retrieval of Simons’ hard drive
from his office.

Simons did not have a legitimate expectation of privacy with regard to the record or fruits of his
Internet use in light of the FBIS Internet policy. The policy clearly stated that FBIS would "audit,
inspect, and/or monitor" employees’ use of the Internet, including all file transfers, all websites
visited, and all e-mail messages, "as deemed appropriate." x x x This policy placed employees on
notice that they could not reasonably expect that their Internet activity would be private.
Therefore, regardless of whether Simons subjectively believed that the files he transferred from
the Internet were private, such a belief was not objectively reasonable after FBIS notified him
that it would be overseeing his Internet use. x x x Accordingly, FBIS’ actions in remotely
searching and seizing the computer files Simons downloaded from the Internet did not violate the
Fourth Amendment.

xxxx

The burden is on Simons to prove that he had a legitimate expectation of privacy in his office. x
x x Here, Simons has shown that he had an office that he did not share. As noted above, the
operational realities of Simons’ workplace may have diminished his legitimate privacy
expectations. However, there is no evidence in the record of any workplace practices,
procedures, or regulations that had such an effect. We therefore conclude that, on this
record, Simons possessed a legitimate expectation of privacy in his office.

xxxx

In the final analysis, this case involves an employee’s supervisor entering the employee’s
government office and retrieving a piece of government equipment in which the employee had
absolutely no expectation of privacy – equipment that the employer knew contained evidence of
crimes committed by the employee in the employee’s office. This situation may be contrasted
with one in which the criminal acts of a government employee were unrelated to his
employment. Here, there was a conjunction of the conduct that violated the employer’s policy
and the conduct that violated the criminal law. We consider that FBIS’ intrusion into Simons’
office to retrieve the hard drive is one in which a reasonable employer might engage. x x
x42 (Citations omitted; emphasis supplied.)

This Court, in Social Justice Society (SJS) v. Dangerous Drugs Board43 which involved the
constitutionality of a provision in R.A. No. 9165 requiring mandatory drug testing of candidates
for public office, students of secondary and tertiary schools, officers and employees of public
and private offices, and persons charged before the prosecutor’s office with certain offenses,
have also recognized the fact that there may be such legitimate intrusion of privacy in the
workplace.

The first factor to consider in the matter of reasonableness is the nature of the privacy interest
upon which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the
Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the
analysis of the privacy expectation of the employees and the reasonableness of drug testing
requirement. The employees’ privacy interest in an office is to a large extent circumscribed by
the company’s work policies, the collective bargaining agreement, if any, entered into by
management and the bargaining unit, and the inherent right of the employer to maintain
discipline and efficiency in the workplace. Their privacy expectation in a regulated office
environment is, in fine, reduced; and a degree of impingement upon such privacy has been
upheld. (Emphasis supplied.)

Applying the analysis and principles announced in O’Connor and Simons to the case at bar, we
now address the following questions: (1) Did petitioner have a reasonable expectation of privacy
in his office and computer files?; and (2) Was the search authorized by the CSC Chair, the
copying of the contents of the hard drive on petitioner’s computer reasonable in its inception and
scope?
In this inquiry, the relevant surrounding circumstances to consider include "(1) the employee’s
relationship to the item seized; (2) whether the item was in the immediate control of the
employee when it was seized; and (3) whether the employee took actions to maintain his privacy
in the item." These factors are relevant to both the subjective and objective prongs of the
reasonableness inquiry, and we consider the two questions together.44 Thus, where the employee
used a password on his computer, did not share his office with co-workers and kept the same
locked, he had a legitimate expectation of privacy and any search of that space and items located
therein must comply with the Fourth Amendment.45

We answer the first in the negative. Petitioner failed to prove that he had an actual (subjective)
expectation of privacy either in his office or government-issued computer which contained his
personal files. Petitioner did not allege that he had a separate enclosed office which he did not
share with anyone, or that his office was always locked and not open to other employees or
visitors. Neither did he allege that he used passwords or adopted any means to prevent other
employees from accessing his computer files. On the contrary, he submits that being in the
public assistance office of the CSC-ROIV, he normally would have visitors in his office like
friends, associates and even unknown people, whom he even allowed to use his computer which
to him seemed a trivial request. He described his office as "full of people, his friends, unknown
people" and that in the past 22 years he had been discharging his functions at the PALD, he is
"personally assisting incoming clients, receiving documents, drafting cases on appeals, in charge
of accomplishment report, Mamamayan Muna Program, Public Sector Unionism, Correction of
name, accreditation of service, and hardly had anytime for himself alone, that in fact he stays in
the office as a paying customer."46 Under this scenario, it can hardly be deduced that petitioner
had such expectation of privacy that society would recognize as reasonable.

Moreover, even assuming arguendo, in the absence of allegation or proof of the aforementioned
factual circumstances, that petitioner had at least a subjective expectation of privacy in his
computer as he claims, such is negated by the presence of policy regulating the use of office
computers, as in Simons.

Office Memorandum No. 10, S. 2002 "Computer Use Policy (CUP)" explicitly provides:

POLICY

1. The Computer Resources are the property of the Civil Service Commission and may be
used only for legitimate business purposes.

2. Users shall be permitted access to Computer Resources to assist them in the

performance of their respective jobs.

3. Use of the Computer Resources is a privilege that may be revoked at any given time.

xxxx

No Expectation of Privacy

4. No expectation of privacy. Users except the Members of the Commission shall not
have an expectation of privacy in anything they create, store, send, or receive on the
computer system.

The Head of the Office for Recruitment, Examination and Placement shall select and
assign Users to handle the confidential examination data and processes.

5. Waiver of privacy rights. Users expressly waive any right to privacy in anything they
create, store, send, or receive on the computer through the Internet or any other computer
network. Users understand that the CSC may use human or automated means to monitor
the use of its Computer Resources.

6. Non-exclusivity of Computer Resources. A computer resource is not a personal

property or for the exclusive use of a User to whom a memorandum of receipt (MR) has
been issued. It can be shared or operated by other users. However, he is accountable
therefor and must insure its care and maintenance.
 xxxx

Passwords

12. Responsibility for passwords. Users shall be responsible for safeguarding their
passwords for access to the computer system. Individual passwords shall not be printed,
stored online, or given to others. Users shall be responsible for all transactions made
using their passwords. No User may access the computer system with another User’s
password or account.

13. Passwords do not imply privacy. Use of passwords to gain access to the computer
system or to encode particular files or messages does not imply that Users have an
expectation of privacy in the material they create or receive on the computer system. The
Civil Service Commission has global passwords that permit access to all materials stored
on its networked computer system regardless of whether those materials have been
encoded with a particular User’s password. Only members of the Commission shall
authorize the application of the said global passwords.

x x x x47 (Emphasis supplied.)

The CSC in this case had implemented a policy that put its employees on notice that they have
no expectation of privacy in anything they create, store, send or receive on the office computers,
and that the CSC may monitor the use of the computer resources using both automated or human
means. This implies that on-the-spot inspections may be done to ensure that the computer
resources were used only for such legitimate business purposes.

One of the factors stated in O’Connor which are relevant in determining whether an employee’s
expectation of privacy in the workplace is reasonable is the existence of a workplace privacy
policy.48 In one case, the US Court of Appeals Eighth Circuit held that a state university
employee has not shown that he had a reasonable expectation of privacy in his computer files
where the university’s computer policy, the computer user is informed not to expect privacy if
the university has a legitimate reason to conduct a search. The user is specifically told that
computer files, including e-mail, can be searched when the university is responding to a
discovery request in the course of litigation. Petitioner employee thus cannot claim a violation of
Fourth Amendment rights when university officials conducted a warrantless search of his
computer for work-related materials.49

As to the second point of inquiry on the reasonableness of the search conducted on petitioner’s
computer, we answer in the affirmative.

The search of petitioner’s computer files was conducted in connection with investigation of
work-related misconduct prompted by an anonymous letter-complaint addressed to Chairperson
David regarding anomalies in the CSC-ROIV where the head of the Mamamayan Muna Hindi
Mamaya Na division is supposedly "lawyering" for individuals with pending cases in the CSC.
Chairperson David stated in her sworn affidavit:

8. That prior to this, as early as 2006, the undersigned has received several text messages from
unknown sources adverting to certain anomalies in Civil Service Commission Regional Office
IV (CSCRO IV) such as, staff working in another government agency, "selling" cases and aiding
parties with pending cases, all done during office hours and involved the use of government
properties;

9. That said text messages were not investigated for lack of any verifiable leads and details
sufficient to warrant an investigation;

10. That the anonymous letter provided the lead and details as it pinpointed the persons and
divisions involved in the alleged irregularities happening in CSCRO IV;

11. That in view of the seriousness of the allegations of irregularities happening in CSCRO IV
and its effect on the integrity of the Commission, I decided to form a team of Central Office staff
to back up the files in the computers of the Public Assistance and Liaison Division (PALD) and
Legal Division;
x x x x50

A search by a government employer of an employee’s office is justified at inception when there

are reasonable grounds for suspecting that it will turn up evidence that the employee is guilty of
work-related misconduct.51 Thus, in the 2004 case decided by the US Court of Appeals Eighth
Circuit, it was held that where a government agency’s computer use policy prohibited electronic
messages with pornographic content and in addition expressly provided that employees do not
have any personal privacy rights regarding their use of the agency information systems and
technology, the government employee had no legitimate expectation of privacy as to the use and
contents of his office computer, and therefore evidence found during warrantless search of the
computer was admissible in prosecution for child pornography. In that case, the defendant
employee’s computer hard drive was first remotely examined by a computer information
technician after his supervisor received complaints that he was inaccessible and had copied and
distributed non-work-related e-mail messages throughout the office. When the supervisor
confirmed that defendant had used his computer to access the prohibited websites, in
contravention of the express policy of the agency, his computer tower and floppy disks were
taken and examined. A formal administrative investigation ensued and later search warrants were
secured by the police department. The initial remote search of the hard drive of petitioner’s
computer, as well as the subsequent warrantless searches was held as valid under the O’Connor
ruling that a public employer can investigate work-related misconduct so long as any search is
justified at inception and is reasonably related in scope to the circumstances that justified it in the
first place.52

Under the facts obtaining, the search conducted on petitioner’s computer was justified at its
inception and scope. We quote with approval the CSC’s discussion on the reasonableness of its
actions, consistent as it were with the guidelines established by O’Connor:

Even conceding for a moment that there is no such administrative policy, there is no doubt in the
mind of the Commission that the search of Pollo’s computer has successfully passed the test of
reasonableness for warrantless searches in the workplace as enunciated in the above-discussed
American authorities. It bears emphasis that the Commission pursued the search in its capacity as
a government employer and that it was undertaken in connection with an investigation involving
a work-related misconduct, one of the circumstances exempted from the warrant requirement. At
the inception of the search, a complaint was received recounting that a certain division chief in
the CSCRO No. IV was "lawyering" for parties having pending cases with the said regional
office or in the Commission. The nature of the imputation was serious, as it was grievously
disturbing. If, indeed, a CSC employee was found to be furtively engaged in the practice of
"lawyering" for parties with pending cases before the Commission would be a highly repugnant
scenario, then such a case would have shattering repercussions. It would undeniably cast clouds
of doubt upon the institutional integrity of the Commission as a quasi-judicial agency, and in the
process, render it less effective in fulfilling its mandate as an impartial and objective dispenser of
administrative justice. It is settled that a court or an administrative tribunal must not only be
actually impartial but must be seen to be so, otherwise the general public would not have any
trust and confidence in it.

Considering the damaging nature of the accusation, the Commission had to act fast, if only to
arrest or limit any possible adverse consequence or fall-out. Thus, on the same date that the
complaint was received, a search was forthwith conducted involving the computer resources in
the concerned regional office. That it was the computers that were subjected to the search was
justified since these furnished the easiest means for an employee to encode and store documents.
Indeed, the computers would be a likely starting point in ferreting out incriminating evidence.
Concomitantly, the ephemeral nature of computer files, that is, they could easily be destroyed at
a click of a button, necessitated drastic and immediate action. Pointedly, to impose the need to
comply with the probable cause requirement would invariably defeat the purpose of the wok-
related investigation.

Worthy to mention, too, is the fact that the Commission effected the warrantless search in an
open and transparent manner. Officials and some employees of the regional office, who
happened to be in the vicinity, were on hand to observe the process until its completion. In
addition, the respondent himself was duly notified, through text messaging, of the search and the
concomitant retrieval of files from his computer.
All in all, the Commission is convinced that the warrantless search done on computer assigned to
Pollo was not, in any way, vitiated with unconstitutionality. It was a reasonable exercise of the
managerial prerogative of the Commission as an employer aimed at ensuring its operational
effectiveness and efficiency by going after the work-related misfeasance of its employees.
Consequently, the evidence derived from the questioned search are deemed admissible.53

Petitioner’s claim of violation of his constitutional right to privacy must necessarily fail. His
other argument invoking the privacy of communication and correspondence under Section 3(1),
Article III of the 1987 Constitution is also untenable considering the recognition accorded to
certain legitimate intrusions into the privacy of employees in the government workplace under
the aforecited authorities. We likewise find no merit in his contention that O’Connor and Simons
are not relevant because the present case does not involve a criminal offense like child
pornography. As already mentioned, the search of petitioner’s computer was justified there being
reasonable ground for suspecting that the files stored therein would yield incriminating evidence
relevant to the investigation being conducted by CSC as government employer of such
misconduct subject of the anonymous complaint. This situation clearly falls under the exception
to the warrantless requirement in administrative searches defined in O’Connor.

The Court is not unaware of our decision in Anonymous Letter-Complaint against Atty. Miguel
Morales, Clerk of Court, Metropolitan Trial Court of Manila54 involving a branch clerk (Atty.
Morales) who was investigated on the basis of an anonymous letter alleging that he was
consuming his working hours filing and attending to personal cases, using office supplies,
equipment and utilities. The OCA conducted a spot investigation aided by NBI agents. The team
was able to access Atty. Morales’ personal computer and print two documents stored in its hard
drive, which turned out to be two pleadings, one filed in the CA and another in the RTC of
Manila, both in the name of another lawyer. Atty. Morales’ computer was seized and taken in
custody of the OCA but was later ordered released on his motion, but with order to the MISO to
first retrieve the files stored therein. The OCA disagreed with the report of the Investigating
Judge that there was no evidence to support the charge against Atty. Morales as no one from the
OCC personnel who were interviewed would give a categorical and positive statement affirming
the charges against Atty. Morales, along with other court personnel also charged in the same
case. The OCA recommended that Atty. Morales should be found guilty of gross misconduct.
The Court En Banc held that while Atty. Morales may have fallen short of the exacting standards
required of every court employee, the Court cannot use the evidence obtained from his personal
computer against him for it violated his constitutional right against unreasonable searches and
seizures. The Court found no evidence to support the claim of OCA that they were able to obtain
the subject pleadings with the consent of Atty. Morales, as in fact the latter immediately filed an
administrative case against the persons who conducted the spot investigation, questioning the
validity of the investigation and specifically invoking his constitutional right against
unreasonable search and seizure. And as there is no other evidence, apart from the pleadings,
retrieved from the unduly confiscated personal computer of Atty. Morales, to hold him
administratively liable, the Court had no choice but to dismiss the charges against him for
insufficiency of evidence.

The above case is to be distinguished from the case at bar because, unlike the former which
involved a personal computer of a court employee, the computer from which the personal files of
herein petitioner were retrieved is a government-issued computer, hence government property
the use of which the CSC has absolute right to regulate and monitor. Such relationship of the
petitioner with the item seized (office computer) and other relevant factors and circumstances
under American Fourth Amendment jurisprudence, notably the existence of CSC MO 10, S.
2007 on Computer Use Policy, failed to establish that petitioner had a reasonable expectation of
privacy in the office computer assigned to him.

Having determined that the personal files copied from the office computer of petitioner are
admissible in the administrative case against him, we now proceed to the issue of whether the
CSC was correct in finding the petitioner guilty of the charges and dismissing him from the
service.

Well-settled is the rule that the findings of fact of quasi-judicial agencies, like the CSC, are
accorded not only respect but even finality if such findings are supported by substantial
evidence. Substantial evidence is such amount of relevant evidence which a reasonable mind
might accept as adequate to support a conclusion, even if other equally reasonable minds might
conceivably opine otherwise.55

The CSC based its findings on evidence consisting of a substantial number of drafts of legal
pleadings and documents stored in his office computer, as well as the sworn affidavits and
testimonies of the witnesses it presented during the formal investigation. According to the CSC,
these documents were confirmed to be similar or exactly the same content-wise with those on the
case records of some cases pending either with CSCRO No. IV, CSC-NCR or the Commission
Proper. There were also substantially similar copies of those pleadings filed with the CA and
duly furnished the Commission. Further, the CSC found the explanation given by petitioner, to
the effect that those files retrieved from his computer hard drive actually belonged to his lawyer
friends Estrellado and Solosa whom he allowed the use of his computer for drafting their
pleadings in the cases they handle, as implausible and doubtful under the circumstances. We hold
that the CSC’s factual finding regarding the authorship of the subject pleadings and misuse of the
office computer is well-supported by the evidence on record, thus:

It is also striking to note that some of these documents were in the nature of pleadings
responding to the orders, decisions or resolutions of these offices or directly in opposition to
them such as a petition for certiorari or a motion for reconsideration of CSC Resolution. This
indicates that the author thereof knowingly and willingly participated in the promotion or
advancement of the interests of parties contrary or antagonistic to the Commission. Worse, the
appearance in one of the retrieved documents the phrase, "Eric N. Estr[e]llado, Epal kulang ang
bayad mo," lends plausibility to an inference that the preparation or drafting of the legal
pleadings was pursued with less than a laudable motivation. Whoever was responsible for these
documents was simply doing the same for the money – a "legal mercenary" selling or purveying
his expertise to the highest bidder, so to speak.

Inevitably, the fact that these documents were retrieved from the computer of Pollo raises the
presumption that he was the author thereof. This is because he had a control of the said
computer. More significantly, one of the witnesses, Margarita Reyes, categorically testified
seeing a written copy of one of the pleadings found in the case records lying on the table of the
respondent. This was the Petition for Review in the case of Estrellado addressed to the Court of
Appeals. The said circumstances indubitably demonstrate that Pollo was secretly undermining
the interest of the Commission, his very own employer.

To deflect any culpability, Pollo would, however, want the Commission to believe that the
documents were the personal files of some of his friends, including one Attorney Ponciano
Solosa, who incidentally served as his counsel of record during the formal investigation of this
case. In fact, Atty. Solosa himself executed a sworn affidavit to this effect. Unfortunately, this
contention of the respondent was directly rebutted by the prosecution witness, Reyes, who
testified that during her entire stay in the PALD, she never saw Atty. Solosa using the computer
assigned to the respondent. Reyes more particularly stated that she worked in close proximity
with Pollo and would have known if Atty. Solosa, whom she personally knows, was using the
computer in question. Further, Atty. Solosa himself was never presented during the formal
investigation to confirm his sworn statement such that the same constitutes self-serving evidence
unworthy of weight and credence. The same is true with the other supporting affidavits, which
Pollo submitted.

At any rate, even admitting for a moment the said contention of the respondent, it evinces the
fact that he was unlawfully authorizing private persons to use the computer assigned to him for
official purpose, not only once but several times gauging by the number of pleadings, for ends
not in conformity with the interests of the Commission. He was, in effect, acting as a principal by
indispensable cooperation…Or at the very least, he should be responsible for serious misconduct
for repeatedly allowing CSC resources, that is, the computer and the electricity, to be utilized for
purposes other than what they were officially intended.

Further, the Commission cannot lend credence to the posturing of the appellant that the line
appearing in one of the documents, "Eric N. Estrellado, Epal kulang ang bayad mo," was a
private joke between the person alluded to therein, Eric N. Estrellado, and his counsel, Atty.
Solosa, and not indicative of anything more sinister. The same is too preposterous to be believed.
Why would such a statement appear in a legal pleading stored in the computer assigned to the
respondent, unless he had something to do with it?56
Petitioner assails the CA in not ruling that the CSC should not have entertained an anonymous
complaint since Section 8 of CSC Resolution No. 99-1936 (URACC) requires a verified
complaint:

Rule II – Disciplinary Cases

SEC. 8. Complaint. - A complaint against a civil service official or employee shall not be given
due course unless it is in writing and subscribed and sworn to by the complainant. However, in
cases initiated by the proper disciplining authority, the complaint need not be under oath.

No anonymous complaint shall be entertained unless there is obvious truth or merit to the
allegation therein or supported by documentary or direct evidence, in which case the person
complained of may be required to comment.

xxxx

We need not belabor this point raised by petitioner. The administrative complaint is deemed to
have been initiated by the CSC itself when Chairperson David, after a spot inspection and search
of the files stored in the hard drive of computers in the two divisions adverted to in the
anonymous letter -- as part of the disciplining authority’s own fact-finding investigation and
information-gathering -- found a prima facie case against the petitioner who was then directed to
file his comment. As this Court held in Civil Service Commission v. Court of Appeals57 --

Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of E.O. No. 292 and Section 8,
Rule II of Uniform Rules on Administrative Cases in the Civil Service, a complaint may be
initiated against a civil service officer or employee by the appropriate disciplining authority,
even without being subscribed and sworn to. Considering that the CSC, as the disciplining
authority for Dumlao, filed the complaint, jurisdiction over Dumlao was validly acquired.
(Emphasis supplied.)

As to petitioner’s challenge on the validity of CSC OM 10, S. 2002 (CUP), the same deserves
scant consideration. The alleged infirmity due to the said memorandum order having been issued
solely by the CSC Chair and not the Commission as a collegial body, upon which the dissent of
Commissioner Buenaflor is partly anchored, was already explained by Chairperson David in her
Reply to the Addendum to Commissioner Buenaflor’s previous memo expressing his dissent to
the actions and disposition of the Commission in this case. According to Chairperson David, said
memorandum order was in fact exhaustively discussed, provision by provision in the January 23,
2002 Commission Meeting, attended by her and former Commissioners Erestain, Jr. and
Valmores. Hence, the Commission En Banc at the time saw no need to issue a Resolution for the
purpose and further because the CUP being for internal use of the Commission, the practice had
been to issue a memorandum order.58 Moreover, being an administrative rule that is merely
internal in nature, or which regulates only the personnel of the CSC and not the public, the CUP
need not be published prior to its effectivity.59

In fine, no error or grave abuse of discretion was committed by the CA in affirming the CSC’s
ruling that petitioner is guilty of grave misconduct, dishonesty, conduct prejudicial to the best
interest of the service, and violation of R.A. No. 6713. The gravity of these offenses justified the
imposition on petitioner of the ultimate penalty of dismissal with all its accessory penalties,
pursuant to existing rules and regulations.

WHEREFORE, the petition for review on certiorari is DENIED. The Decision dated October 11,
2007 and Resolutiondated February 29, 2008 of the Court of Appeals in CA-G.R. SP No. 98224
are AFFIRMED.

With costs against the petitioner.

SO ORDERED.
11.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R.No. 74869 July 6, 1988

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
IDEL AMINNUDIN y AHNI, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Herminio T. Llariza counsel de-officio for defendant-appellant.

CRUZ, J.:

The accused-appellant claimed his business was selling watches but he was nonetheless arrested,
tried and found guilty of illegally transporting marijuana. The trial court, disbelieving him, held
it was high time to put him away and sentenced him to life imprisonment plus a fine of
P20,000.00. 1

Idel Aminnudin was arrested on June 25, 1984, shortly after disembarking from the M/V Wilcon
9 at about 8:30 in the evening, in Iloilo City. The PC officers who were in fact waiting for him
simply accosted him, inspected his bag and finding what looked liked marijuana leaves took him
to their headquarters for investigation. The two bundles of suspect articles were confiscated from
him and later taken to the NBI laboratory for examination. When they were verified as marijuana
leaves, an information for violation of the Dangerous Drugs Act was filed against him. 2 Later,
the information was amended to include Farida Ali y Hassen, who had also been arrested with
him that same evening and likewise investigated. 3 Both were arraigned and pleaded not
guilty. 4 Subsequently, the fiscal filed a motion to dismiss the charge against Ali on the basis of a
sworn statement of the arresting officers absolving her after a 'thorough investigation." 5 The
motion was granted, and trial proceeded only against the accused-appellant, who was eventually
convicted .6

According to the prosecution, the PC officers had earlier received a tip from one of their
informers that the accused-appellant was on board a vessel bound for Iloilo City and was
carrying marijuana. 7 He was Identified by name. 8Acting on this tip, they waited for him in the
evening of June 25, 1984, and approached him as he descended from the gangplank after the
informer had pointed to him. 9 They detained him and inspected the bag he was carrying. It was
found to contain three kilos of what were later analyzed as marijuana leaves by an NBI forensic
examiner, 10who testified that she conducted microscopic, chemical and chromatographic tests
on them. On the basis of this finding, the corresponding charge was then filed against
Aminnudin.

In his defense, Aminnudin disclaimed the marijuana, averring that all he had in his bag was his
clothing consisting of a jacket, two shirts and two pairs of pants. 11 He alleged that he was
arbitrarily arrested and immediately handcuffed. His bag was confiscated without a search
warrant. At the PC headquarters, he was manhandled to force him to admit he was carrying the
marijuana, the investigator hitting him with a piece of wood in the chest and arms even as he
parried the blows while he was still handcuffed. 12 He insisted he did not even know what
marijuana looked like and that his business was selling watches and sometimes cigarettes. 13 He
also argued that the marijuana he was alleged to have been carrying was not properly Identified
and could have been any of several bundles kept in the stock room of the PC headquarters. 14

The trial court was unconvinced, noting from its own examination of the accused that he claimed
to have come to Iloilo City to sell watches but carried only two watches at the time, traveling
from Jolo for that purpose and spending P107.00 for fare, not to mention his other
expenses. 15 Aminnudin testified that he kept the two watches in a secret pocket below his belt
but, strangely, they were not discovered when he was bodily searched by the arresting officers
nor were they damaged as a result of his manhandling. 16 He also said he sold one of the watches
for P400.00 and gave away the other, although the watches belonged not to him but to his
cousin, 17 to a friend whose full name he said did not even know. 18 The trial court also rejected
his allegations of maltreatment, observing that he had not sufficiently proved the injuries
sustained by him. 19

There is no justification to reverse these factual findings, considering that it was the trial judge
who had immediate access to the testimony of the witnesses and had the opportunity to weigh
their credibility on the stand. Nuances of tone or voice, meaningful pauses and hesitation, flush
of face and dart of eyes, which may reveal the truth or expose the lie, are not described in the
impersonal record. But the trial judge sees all of this, discovering for himself the truant fact
amidst the falsities.

The only exception we may make in this case is the trial court's conclusion that the accused-
appellant was not really beaten up because he did not complain about it later nor did he submit to
a medical examination. That is hardly fair or realistic. It is possible Aminnudin never had that
opportunity as he was at that time under detention by the PC authorities and in fact has never
been set free since he was arrested in 1984 and up to the present. No bail has been allowed for
his release.

There is one point that deserves closer examination, however, and it is Aminnudin's claim that he
was arrested and searched without warrant, making the marijuana allegedly found in his
possession inadmissible in evidence against him under the Bill of Rights. The decision did not
even discuss this point. For his part, the Solicitor General dismissed this after an all-too-short
argument that the arrest of Aminnudin was valid because it came under Rule 113, Section 6(b) of
the Rules of Court on warrantless arrests. This made the search also valid as incidental to a
lawful arrest.

It is not disputed, and in fact it is admitted by the PC officers who testified for the prosecution,
that they had no warrant when they arrested Aminnudin and seized the bag he was carrying.
Their only justification was the tip they had earlier received from a reliable and regular informer
who reported to them that Aminnudin was arriving in Iloilo by boat with marijuana. Their
testimony varies as to the time they received the tip, one saying it was two days before the
arrest, 20 another two weeks 21 and a third "weeks before June 25." 22 On this matter, we may
prefer the declaration of the chief of the arresting team, Lt. Cipriano Querol, Jr., who testified as
follows:

Q You mentioned an intelligence report, you mean with respect to

the coming of Idel Aminnudin on June 25, 1984?

A Yes, sir.

Q When did you receive this intelligence report?

A Two days before June 25, 1984 and it was supported by reliable
sources.

Q Were you informed of the coming of the Wilcon 9 and the

possible trafficking of marijuana leaves on that date?

A Yes, sir, two days before June 25, 1984 when we received this
information from that particular informer, prior to June 25, 1984
we have already reports of the particular operation which was
being participated by Idel Aminnudin.

Q You said you received an intelligence report two days before

June 25, 1984 with respect to the coming of Wilcon 9?

A Yes, sir.
Q Did you receive any other report aside from this intelligence
report?

A Well, I have received also other reports but not pertaining to the
coming of Wilcon 9. For instance, report of illegal gambling
operation.

COURT:

Q Previous to that particular information which you said two days

before June 25, 1984, did you also receive daily report regarding
the activities of Idel Aminnudin

A Previous to June 25, 1984 we received reports on the activities

of Idel Aminnudin.

Q What were those activities?

A Purely marijuana trafficking.

Q From whom did you get that information?

A It came to my hand which was written in a required sheet of

information, maybe for security reason and we cannot Identify the
person.

Q But you received it from your regular informer?

A Yes, sir.

ATTY. LLARIZA:

Q Previous to June 25, 1984, you were more or less sure that Idel
Aminnudin is coming with drugs?

A Marijuana, sir.

Q And this information respecting Idel Aminnudin's coming to

Iloilo with marijuana was received by you many days before you
received the intelligence report in writing?

A Not a report of the particular coming of Aminnudin but his

activities.

Q You only knew that he was coming on June 25,1984 two days
before?

A Yes, sir.

Q You mean that before June 23, 1984 you did not know that
minnudin was coming?

A Before June 23,1984, I, in my capacity, did not know that he

was coming but on June 23, 1984 that was the time when I
received the information that he was coming. Regarding the reports
on his activities, we have reports that he was already consummated
the act of selling and shipping marijuana stuff.

COURT:

Q And as a result of that report, you put him under surveillance?

 A Yes, sir.

Q In the intelligence report, only the name of Idel Aminnudin was

mentioned?

A Yes, sir.

Q Are you sure of that?

A On the 23rd he will be coming with the woman.

Q So that even before you received the official report on June 23,
1984, you had already gathered information to the effect that Idel
Aminnudin was coming to Iloilo on June 25, 1984?

A Only on the 23rd of June.

Q You did not try to secure a search warrant for the seizure or
search of the subject mentioned in your intelligence report?

A No, more.

Q Why not?

A Because we were very very sure that our operation will yield
positive result.

Q Is that your procedure that whenever it will yield positive result

you do not need a search warrant anymore?

A Search warrant is not necessary. 23

That last answer is a cavalier pronouncement, especially as it comes from a mere lieutenant of
the PC. The Supreme Court cannot countenance such a statement. This is still a government of
laws and not of men.

The mandate of the Bill of Rights is clear:

Sec. 2. The right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the persons
or things to be seized.

In the case at bar, there was no warrant of arrest or search warrant issued by a judge after
personal determination by him of the existence of probable cause. Contrary to the averments of
the government, the accused-appellant was not caught in flagrante nor was a crime about to be
committed or had just been committed to justify the warrantless arrest allowed under Rule 113 of
the Rules of Court. Even expediency could not be invoked to dispense with the obtention of the
warrant as in the case of Roldan v. Arca, 24 for example. Here it was held that vessels and aircraft
are subject to warrantless searches and seizures for violation of the customs law because these
vehicles may be quickly moved out of the locality or jurisdiction before the warrant can be
secured.

The present case presented no such urgency. From the conflicting declarations of the PC
witnesses, it is clear that they had at least two days within which they could have obtained a
warrant to arrest and search Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His
name was known. The vehicle was Identified. The date of its arrival was certain. And from the
information they had received, they could have persuaded a judge that there was probable cause,
indeed, to justify the issuance of a warrant. Yet they did nothing. No effort was made to comply
with the law. The Bill of Rights was ignored altogether because the PC lieutenant who was the
head of the arresting team, had determined on his own authority that a "search warrant was not
necessary."

In the many cases where this Court has sustained the warrantless arrest of violators of the
Dangerous Drugs Act, it has always been shown that they were caught red-handed, as a result of
what are popularly called "buy-bust" operations of the narcotics agents. 25 Rule 113 was clearly
applicable because at the precise time of arrest the accused was in the act of selling the
prohibited drug.

In the case at bar, the accused-appellant was not, at the moment of his arrest, committing a crime
nor was it shown that he was about to do so or that he had just done so. What he was doing was
descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called
for his arrest. To all appearances, he was like any of the other passengers innocently
disembarking from the vessel. It was only when the informer pointed to him as the carrier of the
marijuana that he suddenly became suspect and so subject to apprehension. It was the furtive
finger that triggered his arrest. The Identification by the informer was the probable cause as
determined by the officers (and not a judge) that authorized them to pounce upon Aminnudin and
immediately arrest him.

Now that we have succeeded in restoring democracy in our country after fourteen years of the
despised dictatorship, when any one could be picked up at will, detained without charges and
punished without trial, we will have only ourselves to blame if that kind of arbitrariness is
allowed to return, to once more flaunt its disdain of the Constitution and the individual liberties
its Bill of Rights guarantees.

While this is not to say that the accused-appellant is innocent, for indeed his very own words
suggest that he is lying, that fact alone does not justify a finding that he is guilty. The
constitutional presumption is that he is innocent, and he will be so declared even if his defense is
weak as long as the prosecution is not strong enough to convict him.

Without the evidence of the marijuana allegedly seized from Aminnudin, the case of the
prosecution must fall. That evidence cannot be admitted, and should never have been considered
by the trial court for the simple fact is that the marijuana was seized illegally. It is the fruit of the
poisonous tree, to use Justice Holmes' felicitous phrase. The search was not an incident of a
lawful arrest because there was no warrant of arrest and the warrantless arrest did not come
under the exceptions allowed by the Rules of Court. Hence, the warrantless search was also
illegal and the evidence obtained thereby was inadmissible.

The Court strongly supports the campaign of the government against drug addiction and
commends the efforts of our law-enforcement officers against those who would inflict this
malediction upon our people, especially the susceptible youth. But as demanding as this
campaign may be, it cannot be more so than the compulsions of the Bill of Rights for the
protection of the liberty of every individual in the realm, including the basest of criminals. The
Constitution covers with the mantle of its protection the innocent and the guilty alike against any
manner of high- handedness from the authorities, however praiseworthy their intentions.

Those who are supposed to enforce the law are not justified in disregarding the rights of the
individual in the name of order. Order is too high a price for the loss of liberty. As Justice
Holmes, again, said, "I think it a less evil that some criminals should escape than that the
government should play an ignoble part." It is simply not allowed in the free society to violate a
law to enforce another, especially if the law violated is the Constitution itself.

We find that with the exclusion of the illegally seized marijuana as evidence against the accused-
appellant, his guilt has not been proved beyond reasonable doubt and he must therefore be
discharged on the presumption that he is innocent.

ACCORDINGLY, the decision of the trial court is REVERSED and the accused-appellant is
ACQUITTED. It is so ordered.
12.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 87059 June 22, 1992

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROGELIO MENGOTE y TEJAS, accused-appellant.

CRUZ, J.:

Accused-appellant Rogelio Mengote was convicted of illegal possession of firearms on the

strength mainly of the stolen pistol found on his person at the moment of his warrantless arrest.
In this appeal, he pleads that the weapon was not admissible as evidence against him because it
had been illegally seized and was therefore the fruit of the poisonous tree. The Government
disagrees. It insists that the revolver was validly received in evidence by the trial judge because
its seizure was incidental to an arrest that was doubtless lawful even if admittedly without
warrant.

The incident occurred shortly before noon of August 8, 1987, after the Western Police District
received a telephone call from an informer that there were three suspicious-looking persons at
the corner of Juan Luna and North Bay Boulevard in Tondo, Manila. A surveillance team of
plainclothesmen was forthwith dispatched to the place. As later narrated at the trial by Patrolmen
Rolando Mercado and Alberto Juan, 1 they there saw two men "looking from side to side," one of
whom was holding his abdomen. They approached these persons and identified themselves as
policemen, whereupon the two tried to run away but were unable to escape because the other
lawmen had surrounded them. The suspects were then searched. One of them, who turned out to
be the accused-appellant, was found with a .38 caliber Smith and Wesson revolver with six live
bullets in the chamber. His companion, later identified as Nicanor Morellos, had a fan knife
secreted in his front right pants pocket. The weapons were taken from them. Mengote and
Morellos were then turned over to police headquarters for investigation by the Intelligence
Division.

On August 11, 1987, the following information was filed against the accused-appellant before
the Regional Trial Court of Manila:

The undersigned accuses ROGELIO MENGOTE y TEJAS of a violation of

Presidential Decree No. 1866, committed as follows:

That on or about August 8, 1987, in the City of Manila, Philippines, the said
accused did then and there wilfully, unlawfully and knowingly have in his
possession and under his custody and control a firearm, to wit:

one (1) cal. 38 "S & W" bearing

Serial No. 8720-T

without first having secured the necessary license or permit therefor from the
proper authorities.

Besides the police officers, one other witness presented by the prosecution was Rigoberto
Danganan, who identified the subject weapon as among the articles stolen from him during the
robbery in his house in Malabon on June 13, 1987. He pointed to Mengote as one of the robbers.
He had duly reported the robbery to the police, indicating the articles stolen from him, including
the revolver. 2 For his part, Mengote made no effort to prove that he owned the firearm or that he
was licensed to possess it and claimed instead that the weapon had been "Planted" on him at the
time of his arrest. 3

The gun, together with the live bullets and its holster, were offered as Exhibits A, B, and C and
admitted over the objection of the defense. As previously stated, the weapon was the principal
evidence that led to Mengote's conviction for violation of P.D. 1866. He was sentenced
to reclusion
perpetua. 4

It is submitted in the Appellant's Brief that the revolver should not have been admitted in
evidence because of its illegal seizure. no warrant therefor having been previously obtained.
Neither could it have been seized as an incident of a lawful arrest because the arrest of Mengote
was itself unlawful, having been also effected without a warrant. The defense also contends that
the testimony regarding the alleged robbery in Danganan's house was irrelevant and should also
have been disregarded by the trial court.

The following are the pertinent provision of the Bill of Rights:

Sec. 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the persons
or things to be seized.

Sec. 3 (1). The privacy of communication and correspondence shall be inviolable

except upon lawful order of the court, or when public safety or order requires
otherwise as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.

There is no question that evidence obtained as a result of an illegal search or seizure is

inadmissible in any proceeding for any purpose. That is the absolute prohibition of Article III,
Section 3(2), of the Constitution. This is the celebrated exclusionary rule based on the
justification given by Judge Learned Hand that "only in case the prosecution, which itself
controls the seizing officials, knows that it cannot profit by their wrong will the wrong be
repressed." The Solicitor General, while conceding the rule, maintains that it is not applicable in
the case at bar. His reason is that the arrest and search of Mengote and the seizure of the revolver
from him were lawful under Rule 113, Section 5, of the Rules of Court reading as follows:

Sec. 5. Arrest without warrant when lawful. — A peace officer or private person
may, without a warrant, arrest a person;

(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.

In cases failing under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he
shall be proceeded against in accordance with Rule 112, Section 7.
We have carefully examined the wording of this Rule and cannot see how we can agree with the
prosecution.

Par. (c) of Section 5 is obviously inapplicable as Mengote was not an escapee from a penal
institution when he was arrested. We therefore confine ourselves to determining the lawfulness
of his arrest under either Par. (a) or Par. (b) of this section.

Par. (a) requires that the person be arrested (1) after he has committed or while he is actually
committing or is at least attempting to commit an offense, (2) in the presence of the arresting
officer.

These requirements have not been established in the case at bar. At the time of the arrest in
question, the accused-appellant was merely "looking from side to side" and "holding his
abdomen," according to the arresting officers themselves. There was apparently no offense that
had just been committed or was being actually committed or at least being attempted by Mengote
in their presence.

The Solicitor General submits that the actual existence of an offense was not necessary as long as
Mengote's acts "created a reasonable suspicion on the part of the arresting officers and induced in
them the belief that an offense had been committed and that the accused-appellant had
committed it." The question is, What offense? What offense could possibly have been suggested
by a person "looking from side to side" and "holding his abdomen" and in a place not exactly
forsaken?

These are certainly not sinister acts. And the setting of the arrest made them less so, if at all. It
might have been different if Mengote bad been apprehended at an ungodly hour and in a place
where he had no reason to be, like a darkened alley at 3 o'clock in the morning. But he was
arrested at 11:30 in the morning and in a crowded street shortly after alighting from a passenger
jeep with I his companion. He was not skulking in the shadows but walking in the clear light of
day. There was nothing clandestine about his being on that street at that busy hour in the blaze of
the noonday sun.

On the other hand, there could have been a number of reasons, all of them innocent, why his eyes
were darting from side to side and be was holding his abdomen. If they excited suspicion in the
minds of the arresting officers, as the prosecution suggests, it has nevertheless not been shown
what their suspicion was all about. In fact, the policemen themselves testified that they were
dispatched to that place only because of the telephone call from the informer that there were
"suspicious-looking" persons in that vicinity who were about to commit a robbery at North Bay
Boulevard. The caller did not explain why he thought the men looked suspicious nor did he
elaborate on the impending crime.

In the recent case of People v. Malmstedt, 5 the Court sustained the warrantless arrest of the
accused because there was a bulge in his waist that excited the suspicion of the arresting officer
and, upon inspection, turned out to be a pouch containing hashish. In People v. Claudio, 6 the
accused boarded a bus and placed the buri bag she was carrying behind the seat of the arresting
officer while she herself sat in the seat before him. His suspicion aroused, be surreptitiously
examined the bag, which he found to contain marijuana. He then and there made the warrantless
arrest and seizure that we subsequently upheld on the ground that probable cause had been
sufficiently established.

The case before us is different because there was nothing to support the arresting officers'
suspicion other than Mengote's darting eyes and his hand on his abdomen. By no stretch of the
imagination could it have been inferred from these acts that an offense had just been committed,
or was actually being committed, or was at least being attempted in their presence.

This case is similar to People v. Aminnudin, 7 where the Court held that the warrantless arrest of
the accused was unconstitutional. This was effected while be was coming down a vessel, to all
appearances no less innocent than the other disembarking passengers. He had not committed nor
was be actually committing or attempting to commit an offense in the presence of the arresting
officers. He was not even acting suspiciously. In short, there was no probable cause that, as the
prosecution incorrectly suggested, dispensed with the constitutional requirement of a warrant.
Par. (b) is no less applicable because its no less stringent requirements have also not been
satisfied. The prosecution has not shown that at the time of Mengote's arrest an offense had in
fact just been committed and that the arresting officers had personal knowledge of facts
indicating that Mengote had committed it. All they had was hearsay information from the
telephone caller, and about a crime that had yet to be committed.

The truth is that they did not know then what offense, if at all, had been committed and neither
were they aware of the participation therein of the accused-appellant. It was only later, after
Danganan had appeared at the Police headquarters, that they learned of the robbery in his house
and of Mengote's supposed involvement therein. 8 As for the illegal possession of the firearm
found on Mengote's person, the policemen discovered this only after he had been searched and
the investigation conducted later revealed that he was not its owners nor was he licensed to
possess it.

Before these events, the Peace officers had no knowledge even of Mengote' identity, let alone the
fact (or suspicion) that he was unlawfully carrying a firearm or that he was involved in the
robbery of Danganan's house.

In the landmark case of People v. Burgos, 9 this Court declared:

Under Section 6(a) of Rule 113, the officer arresting a person who has just
committed, is committing, or is about to commit an offense must have personal
knowledge of the fact. The offense must also be committed in his presence or
within his view. (Sayo v. Chief of Police, 80 Phil. 859). (Emphasis supplied)

xxx xxx xxx

In arrests without a warrant under Section 6(b), however, it is not enough that
there is reasonable ground to believe that the person to be arrested has committed
a crime. A crime must in fact or actually have been committed first. That a crime
has actually been committed is an essential precondition. It is not enough to
suspect that a crime may have been committed. The fact of the commission of the
offense must be undisputed. The test of reasonable ground applies only to the
identity of the perpetrator. (Emphasis supplied)

This doctrine was affirmed in Alih v. Castro, 10 thus:

If the arrest was made under Rule 113, Section 5, of the Rules of Court in
connection with a crime about to be committed, being committed, or just
committed, what was that crime? There is no allegation in the record of such a
falsification. Parenthetically, it may be observed that under the Revised Rule 113,
Section 5(b), the officer making the arrest must have personal knowledge of the
ground therefor as stressed in the recent case of People v. Burgos. (Emphasis
supplied)

It would be a sad day, indeed, if any person could be summarily arrested and searched just
because he is holding his abdomen, even if it be possibly because of a stomach-ache, or if a
peace officer could clamp handcuffs on any person with a shifty look on suspicion that he may
have committed a criminal act or is actually committing or attempting it. This simply cannot be
done in a free society. This is not a police state where order is exalted over liberty or, worse,
personal malice on the part of the arresting officer may be justified in the name of security.

There is no need to discuss the other issues raised by the accused-appellant as the ruling we here
make is sufficient to sustain his exoneration. Without the evidence of the firearm taken from him
at the time of his illegal arrest, the prosecution has lost its most important exhibit and must
therefore fail. The testimonial evidence against Mengote (which is based on the said firearm) is
not sufficient to prove his guilt beyond reasonable doubt of the crime imputed to him.

We commend Atty. Violeta Calvo-Drilon for her able and spirited defense of the accused-
appellant not only in the brief but also in the reply brief, which she did not have to file but did so
just the same to stress the constitutional rights of her client. The fact that she was acting only as a
counsel de oficio with no expectation of material reward makes her representation even more
commendable.

The Court feels that if the peace officers had been more mindful of the provisions of the Bill of
Rights, the prosecution of the accused-appellant might have succeeded. As it happened, they
allowed their over-zealousness to get the better of them, resulting in their disregard of the
requirements of a valid search and seizure that rendered inadmissible the vital evidence they had
invalidly seized.

This should be a lesson to other peace officers. Their impulsiveness may be the very cause of the
acquittal of persons who deserve to be convicted, escaping the clutches of the law because,
ironically enough, it has not been observed by those who are supposed to enforce it.

WHEREFORE, the appealed decision is REVERSED and SET ASIDE. The accused-appellant is
ACQUITTED and ordered released immediately unless he is validly detained for other offenses.
No costs.

SO ORDERED.
13.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 128587 March 16, 2007

PEOPLE OF THE PHILIPPINES, Petitioner,

vs.
HON. PERFECTO A.S. LAGUIO, JR., in his capacity as Presiding Judge, Branch 18, RTC,
Manila, and LAWRENCE WANG Y CHEN, Respondents.

DECISION

GARCIA, J.:

On pure questions of law, petitioner People of the Philippines has directly come to this Court via
this petition for review on certiorari to nullify and set aside the Resolution1 dated 13 March 1997
of the Regional Trial Court of Manila, Branch 18, in Criminal Case Nos. 96-149990 to 96-
149992, entitled People of the Philippines v. Lawrence Wang y Chen, granting private
respondent Lawrence C. Wang’s Demurrer to Evidence and acquitting him of the three (3)
charges filed against him, namely: (1) Criminal Case No. 96-149990 for Violation of Section 16,
Article III in relation to Section 2(e)(2), Article I of Republic Act (R.A.) No. 6425 (Dangerous
Drugs Act); (2) Criminal Case No. 96-149991 for Violation of Presidential Decree No. 1866
(Illegal Possession of Firearms); and (3) Criminal Case No. 96-149992 for Violation of Comelec
Resolution No. 2828 in relation to R.A. No. 7166 (COMELEC Gun Ban).

The three (3) separate Informations filed against Lawrence C. Wang in the court of origin
respectively read:

Criminal Case No. 96-149990 (Violation of Dangerous Drugs Act):

That on or about the 17th day of May 1996, in the City of Manila, Philippines, the said accused
did then and there willfully, unlawfully and knowingly have in his possession and under his
custody and control a bulk of white and yellowish crystalline substance known as SHABU
contained in thirty-two (32) transparent plastic bags weighing approximately 29.2941 kilograms,
containing methamphetamine hydrochloride, a regulated drug, without the corresponding license
or prescription therefor.

Contrary to law.2

Criminal Case No. 96-149991 (Illegal Possession of Firearms):

That on or about the 17th day of May 1996, in the City of Manila, Philippines, the said accused
did then and there willfully, unlawfully and knowingly have in his possession and under his
custody and control one (1) DAEWOO Cal. 9mm, automatic pistol with one loaded magazine
and one AMT Cal. .380 9mm automatic backup pistol with magazine loaded with ammunitions
without first having secured the necessary license or permit therefor from the proper authorities.

Contrary to law. 3

Criminal Case No. 96-149992 (Violation of Comelec Gun Ban):

That on or about the 17th day of May 1996, in the City of Manila, Philippines, the said accused
did then and there willfully, unlawfully and knowingly have in his possession and under his
custody and control one (1) DAEWOO Cal. 9mm automatic pistol with one loaded magazine and
one (1) AMT Cal. 380 9mm automatic backup pistol with magazine loaded with ammunitions,
carrying the same along Maria Orosa St., Ermita, Manila, which is a public place, on the date
which is covered by an election period, without first securing the written permission or authority
from the Commission on Elections, as provided by the COMELEC Resolution 2828 in relation
to Republic Act 7166.

Contrary to law. 4

During his arraignment, accused Wang refused to enter a plea to all the Informations and instead
interposed a continuing objection to the admissibility of the evidence obtained by the police
operatives. Thus, the trial court ordered that a plea of "Not Guilty" be entered for
him.5 Thereafter, joint trial of the three (3) consolidated cases followed.

The pertinent facts are as follows:

On 16 May 1996, at about 7:00 p.m., police operatives of the Public Assistance and Reaction
Against Crime of the Department of Interior and Local Government, namely, Captain Margallo,
Police Inspector Cielito Coronel and SPO3 Reynaldo Cristobal, arrested SPO2 Vergel de Dios,
Rogelio Anoble and a certain Arellano, for unlawful possession of methamphetamine
hydrochloride, a regulated drug popularly known as shabu. In the course of the investigation of
the three arrested persons, Redentor Teck, alias Frank, and Joseph Junio were identified as the
source of the drug. An entrapment operation was then set after the three were prevailed upon to
call their source and pretend to order another supply of shabu.

At around 11:00 p.m. that same date, Redentor Teck and Joseph Junio were arrested while they
were about to hand over another bag of shabu to SPO2 De Dios and company. Questioned,
Redentor Teck and Joseph Junio informed the police operatives that they were working as talent
manager and gymnast instructor, respectively, of Glamour Modeling Agency owned by
Lawrence Wang. Redentor Teck and Joseph Junio did not disclose their source of shabu but
admitted that they were working for Wang.6 They also disclosed that they knew of a scheduled
delivery of shabu early the following morning of 17 May 1996, and that their employer (Wang)
could be found at the Maria Orosa Apartment in Malate, Manila. The police operatives decided
to look for Wang to shed light on the illegal drug activities of Redentor Teck and Joseph Junio.
Police Inspector Cielito Coronel and his men then proceeded to Maria Orosa Apartment and
placed the same under surveillance.

Prosecution witness Police Inspector Cielito Coronel testified that at about 2:10 a.m. of 17 May
1996, Wang, who was described to the operatives by Teck, came out of the apartment and
walked towards a parked BMW car. On nearing the car, he (witness) together with Captain
Margallo and two other police officers approached Wang, introduced themselves to him as police
officers, asked his name and, upon hearing that he was Lawrence Wang, immediately frisked
him and asked him to open the back compartment of the BMW car.7 When frisked, there was
found inside the front right pocket of Wang and confiscated from him an unlicensed AMT Cal.
380 9mm automatic Back-up Pistol loaded with ammunitions. At the same time, the other
members of the operatives searched the BMW car and found inside it were the following items:
(a) 32 transparent plastic bags containing white crystalline substance with a total weight of
29.2941 kilograms, which substance was later analyzed as positive for methamphetamine
hydrochloride, a regulated drug locally known as shabu; (b) cash in the amount of ₱650,000.00;
(c) one electronic and one mechanical scales; and (d) an unlicensed Daewoo 9mm Pistol with
magazine. Then and there, Wang resisted the warrantless arrest and search.8

On 6 December 1996, the prosecution rested its case and upon motion, accused Wang was
granted 25 days from said date within which to file his intended Demurrer to Evidence.9 On 19
December 1996, the prosecution filed a Manifestation10 to the effect that it had rested its case
only in so far as the charge for Violation of the Dangerous Drugs Act in Criminal Case No. 96-
149990 is concerned, and not as regards the two cases for Illegal Possession of Firearms (Crim.
Case No. 96-149991) and Violation of the Comelec Gun Ban (Crim. Case No. 96-149992).
Accordingly, trial continued.

On 9 January 1997, Wang filed his undated Demurrer to Evidence,11 praying for his acquittal and
the dismissal of the three (3) cases against him for lack of a valid arrest and search warrants and
the inadmissibility of the prosecution’s evidence against him. Considering that the prosecution
has not yet filed its Opposition to the demurrer, Wang filed an Amplification12 to his Demurrer
of Evidence on 20 January 1997. On 12 February 1997, the prosecution filed its
Opposition13 alleging that the warrantless search was legal as an incident to the lawful arrest and
that it has proven its case, so it is now time for the defense to present its evidence.

On 13 March 1997, the respondent judge, the Hon. Perfecto A.S. Laguio, Jr., issued the herein
assailed Resolution14 granting Wang’s Demurrer to Evidence and acquitting him of all charges
for lack of evidence, thus:

WHEREFORE, the accused's undated Demurrer to Evidence is hereby granted; the accused is
acquitted of the charges against him for the crimes of Violation of Section 16, Article III of the
Dangerous Drugs Act, Illegal Possession of Firearms, and Violation of Comelec Gun Ban, for
lack of evidence; the 32 bags of shabu with a total weight of 29.2941 kilograms and the two
unlicensed pistols, one AMT Cal. .380 9mm and one Daewoo Cal. 9mm. are ordered confiscated
in favor of the government and the branch clerk is directed to turn over the 32 bags of shabu to
the Dangerous Drugs Board in Intramuros, Manila, and the two firearms to the Firearms and
Explosive Units, PNP, Camp Crame, Quezon City, for proper disposition, and the officer-in-
charge of PARAC, Department of Interior and Local Government, is ordered to return the
confiscated amount of P650,000.00 to the accused, and the confiscated BMW car to its registered
owner, David Lee. No costs.

SO ORDERED.

Hence, this petition15 for review on certiorari by the People, submitting that the trial court erred -

XXX IN HOLDING THAT THE UNDISPUTED FACTS AND CIRCUMSTANCES DID NOT
CONSTITUTE PROBABLE CAUSE WITHIN THE CONTEMPLATION OF SECTION 2,
ARTICLE III OF THE CONSTITUTION, AND IN HOLDING THAT SUCH FACTS AND
CIRCUMSTANCES NEITHER JUSTIFIED THE WARRANTLESS SEARCH OF
ACCUSED'S VEHICLE AND THE SEIZURE OF THE CONTRABAND THEREIN.

ll

XXX IN HOLDING, IN EFFECT, THAT A WARRANTLESS SEARCH IS

CONSTITUTIONALLY ALLOWABLE AND CAN ONLY BE VALID AS AN INCIDENT TO
A LAWFUL ARREST.

lII

XXX IN DECLARING THE WARRANTLESS ARREST OF THE ACCUSED AND THE

SEARCH AND SEIZURE OF HIS HANDGUNS UNLAWFUL.

IV

XXX IN NOT DECLARING THE ACCUSED AS HAVING WAIVED, AS A RESULT OF

HIS SUBMISSION AND FAILURE TO PROTEST THE SEARCH AND HIS ARREST, HIS
CONSTITUTIONAL RIGHT AGAINST UNREASONABLE SEARCH AND SEIZURE AND
HIS OBJECTION TO THE ADMISSION OF THE EVIDENCE SEIZED.

XXX IN NOT ADMITTING IN EVIDENCE THE EVIDENCE SEIZED AND OFFERED BY

THE PROSECUTION AND IN NOT DENYING ACCUSED'S DEMURRER TO EVIDENCE.

In its Resolution16 of 9 July 1997, the Court, without giving due course to the petition, required
the public and private respondents to comment thereon within ten days from notice. Private
respondent Wang filed his comment17on 18 August 1997.

On 10 September 1997, the Court required the People to file a reply,18 which the Office of the
Solicitor General did on 5 December 1997, after several extensions.19
On 20 October 2004, the Court resolved to give due course to the petition and required the
parties to submit their respective memoranda,20 which they did.

The case presents two main issues: (a) whether the prosecution may appeal the trial court’s
resolution granting Wang’s demurrer to evidence and acquitting him of all the charges against
him without violating the constitutional proscription against double jeopardy; and (b) whether
there was lawful arrest, search and seizure by the police operatives in this case despite the
absence of a warrant of arrest and/or a search warrant.

First off, it must be emphasized that the present case is an appeal filed directly with this Court
via a petition for review on certiorari under Rule 45 in relation to Rule 41, Section 2, paragraph
(c) of the Rules of Court raising only pure questions of law, ordinary appeal by mere filing of a
notice of appeal not being allowed as a mode of appeal directly to this Court. Then, too, it bears
stressing that the right to appeal is neither a natural right nor a part of due process, it being
merely a statutory privilege which may be exercised only in the manner provided for by law
(Velasco v. Court of Appeals21). Although Section 2, Rule 122 of the Rules on Criminal
Procedure states that any party may appeal, the right of the People to appeal is, in the very same
provision, expressly made subject to the prohibition against putting the accused in double
jeopardy. It also basic that appeal in criminal cases throws the whole records of the case wide
open for review by the appellate court, that is why any appeal from a judgment of acquittal
necessarily puts the accused in double jeopardy. In effect, the very same Section 2 of Rule 122 of
the Rules on Criminal Procedure, disallows appeal by the People from judgments of acquittal.

An order granting an accused’s demurrer to evidence is a resolution of the case on the merits,
and it amounts to an acquittal. Generally, any further prosecution of the accused after an
acquittal would violate the constitutional proscription on double jeopardy. To this general rule,
however, the Court has previously made some exceptions.

The celebrated case of Galman v. Sandiganbayan22 presents one exception to the rule on double
jeopardy, which is, when the prosecution is denied due process of law:

No court whose Presiding Justice has received "orders or suggestions" from the very President
who by an amendatory decree (disclosed only at the hearing of oral arguments on November 8,
1984 on a petition challenging the referral of the Aquino-Galman murder cases to the
Tanodbayan and Sandiganbayan instead of to a court martial, as mandatorily required by the
known P.D. 1850 at the time providing for exclusive jurisdiction of courts martial over criminal
offenses committed by military men) made it possible to refer the cases to the Sandiganbayan,
can be an impartial court, which is the very essence of due process of law. As the writer then
wrote, "jurisdiction over cases should be determined by law, and not by preselection of the
Executive, which could be much too easily transformed into a means of predetermining the
outcome of individual cases." This criminal collusion as to the handling and treatment of the
cases by public respondents at the secret Malacañang conference (and revealed only after fifteen
months by Justice Manuel Herrera) completely disqualified respondent Sandiganbayan and
voided ab initio its verdict. This renders moot and irrelevant for now the extensive arguments of
respondents accused, particularly Generals Ver and Olivas and those categorized as accessories,
that there has been no evidence or witness suppressed against them, that the erroneous
conclusions of Olivas as police investigator do not make him an accessory of the crimes he
investigated and the appraisal and evaluation of the testimonies of the witnesses presented and
suppressed. There will be time and opportunity to present all these arguments and considerations
at the remand and retrial of the cases herein ordered before a neutral and impartial court.

The Supreme Court cannot permit such a sham trial and verdict and travesty of justice to stand
unrectified. The courts of the land under its aegis are courts of law and justice and equity. They
would have no reason to exist if they were allowed to be used as mere tools of injustice,
deception and duplicity to subvert and suppress the truth, instead of repositories of judicial
power whose judges are sworn and committed to render impartial justice to all alike who seek
the enforcement or protection of a right or the prevention or redress of a wrong, without fear or
favor and removed from the pressures of politics and prejudice. More so, in the case at bar where
the people and the world are entitled to know the truth, and the integrity of our judicial system is
at stake. In life, as an accused before the military tribunal Ninoy had pleaded in vain that as a
civilian he was entitled to due process of law and trial in the regular civil courts before an
impartial court with an unbiased prosecutor. In death, Ninoy, as the victim of the "treacherous
and vicious assassination" and the relatives and sovereign people as the aggrieved parties plead
once more for due process of law and a retrial before an impartial court with an unbiased
prosecutor. The Court is constrained to declare the sham trial a mock trial — the non-trial of the
century — and that the predetermined judgment of acquittal was unlawful and void ab initio.

1. No double jeopardy. — It is settled doctrine that double jeopardy cannot be invoked against
this Court's setting aside of the trial courts' judgment of dismissal or acquittal where the
prosecution which represents the sovereign people in criminal cases is denied due process. As
the Court stressed in the 1985 case of People vs. Bocar,

Where the prosecution is deprived of a fair opportunity to prosecute and prove its case, its right
to due process is thereby violated.

The cardinal precept is that where there is a violation of basic constitutional rights, courts are
ousted of their jurisdiction. Thus, the violation of the State's right to due process raises a serious
jurisdictional issue (Gumabon vs. Director of the Bureau of Prisons, L-30026, 37 SCRA 420
[Jan. 30, 1971]) which cannot be glossed over or disregarded at will. Where the denial of the
fundamental right of due process is apparent, a decision rendered in disregard of that right is void
for lack of jurisdiction (Aducayen vs. Flores, L-30370 [May 25, 19731, 51 SCRA 78; Shell Co.
vs. Enage, L-30111-12, 49 SCRA 416 Feb. 27, 1973]). Any judgment or decision rendered
notwithstanding such violation may be regarded as a "lawless thing, which can be treated as an
outlaw and slain at sight, or ignored wherever it exhibits its head" (Aducayen vs. Flores, supra).

Respondent Judge's dismissal order dated July 7, 1967 being null and void for lack of
jurisdiction, the same does not constitute a proper basis for a claim of double jeopardy (Serino
vs. Zosa, supra).

xxx xxx xxx

Legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent court, (c) after
arraignment, (d) a valid plea having been entered; and (e) the case was dismissed or otherwise
terminated without the express consent of the accused (People vs. Ylagan, 58 Phil. 851). The
lower court was not competent as it was ousted of its jurisdiction when it violated the right of the
prosecution to due process.

In effect, the first jeopardy was never terminated, and the remand of the criminal case for further
hearing and/or trial before the lower courts amounts merely to a continuation of the first
jeopardy, and does not expose the accused to a second jeopardy.

Another exception is when the trial court commits grave abuse of discretion in dismissing a
criminal case by granting the accused’s demurrer to evidence. In point is the fairly recent case of
People v. Uy,23 which involved the trial court’s decision which granted the two separate
demurrers to evidence filed by the two accused therein, both with leave of court, resulting in
their acquittal of their respective charges of murder due to insufficiency of evidence. In resolving
the petition for certiorari filed directly with this Court, we had the occasion to explain:

The general rule in this jurisdiction is that a judgment of acquittal is final and
unappealable. People v. Court of Appeals explains the rationale of this rule:

In our jurisdiction, the finality-of-acquittal doctrine as a safeguard against double jeopardy

faithfully adheres to the principle first enunciated in Kepner v. United States. In this case,
verdicts of acquittal are to be regarded as absolutely final and irreviewable. The cases of United
States v. Yam Tung Way, People v. Bringas, Gandicela v. Lutero, People v. Cabarles, People v.
Bao, to name a few, are illustrative cases. The fundamental philosophy behind the constitutional
proscription against double jeopardy is to afford the defendant, who has been acquitted, final
repose and safeguard him from government oppression through the abuse of criminal processes.
As succinctly observed in Green v. United States "(t)he underlying idea, one that is deeply
ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its
resources and power should not be allowed to make repeated attempts to convict an individual
for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and
compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the
possibility that even though innocent, he may be found guilty." (Underscoring supplied)
The same rule applies in criminal cases where a demurrer to evidence is granted. As held in the
case of People v. Sandiganbayan:

The demurrer to evidence in criminal cases, such as the one at bar, is "filed after the prosecution
had rested its case," and when the same is granted, it calls "for an appreciation of the evidence
adduced by the prosecution and its sufficiency to warrant conviction beyond reasonable doubt,
resulting in a dismissal of the case on the merits, tantamount to an acquittal of the accused."
Such dismissal of a criminal case by the grant of demurrer to evidence may not be appealed, for
to do so would be to place the accused in double-jeopardy. The verdict being one of acquittal, the
case ends there. (Italics in the original)

Like any other rule, however, the above-said rule is not absolute. By way of exception, a
judgment of acquittal in a criminal case may be assailed in a petition for certiorari under Rule 65
of the Rules of Court upon a clear showing by the petitioner that the lower court, in acquitting
the accused, committed not merely reversible errors of judgment but also grave abuse of
discretion amounting to lack or excess of jurisdiction or a denial of due process, thus rendering
the assailed judgment void. (Emphasis supplied.)

In Sanvicente v. People,24 the Court allowed the review of a decision of the Court of Appeals
(CA) which reversed the accused’s acquittal upon demurrer to evidence filed by the accused with
leave of court, the CA ruling that the trial court committed grave abuse of discretion in
preventing the prosecution from establishing the due execution and authenticity of certain letter
marked therein as Exhibit "LL," which supposedly "positively identified therein petitioner as the
perpetrator of the crime charged." The Court, in a petition for certiorari, sustained the CA’s
power to review the order granting the demurrer to evidence, explaining thus:

Under Rule 119, Section 23 of the Revised Rules of Criminal Procedure, as amended, the trial
court may dismiss the action on the ground of insufficiency of evidence upon a demurrer to
evidence filed by the accused with or without leave of court. In resolving accused’s demurrer to
evidence, the court is merely required to ascertain whether there is competent or sufficient
evidence to sustain the indictment or support a verdict of guilt.

The grant or denial of a demurrer to evidence is left to the sound discretion of the trial court and
its ruling on the matter shall not be disturbed in the absence of a grave abuse of discretion.
Significantly, once the court grants the demurrer, such order amounts to an acquittal and any
further prosecution of the accused would violate the constitutional proscription on double
jeopardy. This constitutes an exception to the rule that the dismissal of a criminal case made with
the express consent of the accused or upon his own motion bars a plea of double jeopardy. The
finality-of-acquittal rule was stressed thus in People v. Velasco:

The fundamental philosophy highlighting the finality of an acquittal by the trial court cuts deep
into the "humanity of the laws and in jealous watchfulness over the rights of the citizens, when
brought in unequal contest with the State xxx. Thus Green expressed the concern that "(t)he
underlying idea, one that is deeply ingrained in at least the Anglo-American system of
jurisprudence, is that the State with all its resources and power should not be allowed to make
repeated attempts to convict an individual for an alleged offense thereby subjecting him to
embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety
and insecurity, as well as enhancing the possibility that even though innocent, he may be found
guilty."

It is axiomatic that on the basis of humanity, fairness and justice, an acquitted defendant is
entitled to the right of repose as a direct consequence of the finality of his acquittal. The
philosophy underlying this rule establishing the absolute nature of acquittals is "part of the
paramount importance criminal justice system attaches to the protection of the innocent against
wrongful conviction." The interest in the finality-of-acquittal rule, confined exclusively to
verdicts of not guilty, is easy to understand: it is a need for "repose", a desire to know the exact
extent of one’s liability. With this right of repose, the criminal justice system has built in a
protection to insure that the innocent, even those whose innocence rests upon a jury’s leniency,
will not be found guilty in a subsequent proceeding.

Given the far-reaching scope of an accused’s right against double jeopardy, even an appeal based
on an alleged misappreciation of evidence will not lie. The only instance when double jeopardy
will not attach is when the trial court acted with grave abuse of discretion amounting to lack or
excess of jurisdiction, such as where the prosecution was denied the opportunity to present its
case or where the trial was a sham. However, while certiorari may be availed of to correct an
erroneous acquittal, the petitioner in such an extraordinary proceeding must clearly demonstrate
that the trial court blatantly abused its authority to a point so grave as to deprive it of its very
power to dispense justice. (Emphasis supplied.)

By this time, it is settled that the appellate court may review dismissal orders of trial courts
granting an accused’s demurrer to evidence. This may be done via the special civil action of
certiorari under Rule 65 based on the ground of grave abuse of discretion, amounting to lack or
excess of jurisdiction. Such dismissal order, being considered void judgment, does not result in
jeopardy. Thus, when the order of dismissal is annulled or set aside by an appellate court in an
original special civil action via certiorari, the right of the accused against double jeopardy is not
violated.

Unfortunately, what petitioner People of the Philippines, through then Secretary of Justice
Teofisto T. Guingona, Jr. and then Solicitor General Silvestre H. Bello, III, filed with the Court
in the present case is an appeal by way of a petition for review on certiorari under Rule 45
raising a pure question of law, which is different from a petition for certiorari under Rule 65.

In Madrigal Transport Inc. v. Lapanday Holdings Corporation,25 we have enumerated the

distinction between the two remedies/actions, to wit:

Appeal and Certiorari Distinguished

Between an appeal and a petition for certiorari, there are substantial distinctions which shall be
explained below.

As to the Purpose. Certiorari is a remedy designed for the correction of errors of jurisdiction, not
errors of judgment. In Pure Foods Corporation v. NLRC, we explained the simple reason for the
rule in this light:

"When a court exercises its jurisdiction, an error committed while so engaged does not deprive 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. This cannot be allowed. The administration of justice would not survive such a rule.
Consequently, an error of judgment that the court may commit in the exercise of its jurisdiction
is not correct[a]ble through the original civil action of certiorari."

The supervisory jurisdiction of a court over the issuance of a writ of certiorari cannot be
exercised for the purpose of reviewing the intrinsic correctness of a judgment of the lower court -
- on the basis either of the law or the facts of the case, or of the wisdom or legal soundness of the
decision. Even if the findings of the court are incorrect, as long as it has jurisdiction over the
case, such correction is normally beyond the province of certiorari. Where the error is not one of
jurisdiction, but of an error of law or fact -- a mistake of judgment -- appeal is the remedy.

As to the Manner of Filing. Over an appeal, the CA exercises its appellate jurisdiction and power
of review. Over a certiorari, the higher court uses its original jurisdiction in accordance with its
power of control and supervision over the proceedings of lower courts. An appeal is thus a
continuation of the original suit, while a petition for certiorari is an original and independent
action that was not part of the trial that had resulted in the rendition of the judgment or order
complained of. The parties to an appeal are the original parties to the action. In contrast, the
parties to a petition for certiorari are the aggrieved party (who thereby becomes the petitioner)
against the lower court or quasi-judicial agency, and the prevailing parties (the public and the
private respondents, respectively).

As to the Subject Matter. Only judgments or final orders and those that the Rules of Court so
declared are appealable. Since the issue is jurisdiction, an original action for certiorari may be
directed against an interlocutory order of the lower court prior to an appeal from the judgment; or
where there is no appeal or any plain, speedy or adequate remedy.
As to the Period of Filing. Ordinary appeals should be filed within fifteen days from the notice of
judgment or final order appealed from. Where a record on appeal is required, the appellant must
file a notice of appeal and a record on appeal within thirty days from the said notice of judgment
or final order. A petition for review should be filed and served within fifteen days from the
notice of denial of the decision, or of the petitioner’s timely filed motion for new trial or motion
for reconsideration. In an appeal by certiorari, the petition should be filed also within fifteen days
from the notice of judgment or final order, or of the denial of the petitioner’s motion for new trial
or motion for reconsideration.

On the other hand, a petition for certiorari should be filed not later than sixty days from the
notice of judgment, order, or resolution. If a motion for new trial or motion for reconsideration
was timely filed, the period shall be counted from the denial of the motion.

As to the Need for a Motion for Reconsideration. A motion for reconsideration is generally
required prior to the filing of a petition for certiorari, in order to afford the tribunal an
opportunity to correct the alleged errors. Note also that this motion is a plain and adequate
remedy expressly available under the law. Such motion is not required before appealing a
judgment or final order.

Also in Madrigal, we stressed that the special civil action of certiorari and appeal are two
different remedies mutually exclusive; they are neither alternative nor successive. Where appeal
is available, certiorari will not prosper. In the dismissal of a criminal case upon demurrer to
evidence, appeal is not available as such an appeal will put the accused in double jeopardy.
Certiorari, however, is allowed.

For being the wrong remedy taken by petitioner People of the Philippines in this case, this
petition is outrightly dismissible. The Court cannot reverse the assailed dismissal order of the
trial court by appeal without violating private respondent’s right against double jeopardy.

Even assuming that the Court may treat an "appeal" as a special civil action of certiorari, which
definitely this Court has the power to do, when there is a clear showing of grave abuse of
discretion committed by the lower court, the instant petition will nevertheless fail on the merits
as the succeeding discussion will show.

There are actually two (2) acts involved in this case, namely, the warrantless arrest and the
warrantless search. There is no question that warrantless search may be conducted as an incident
to a valid warrantless arrest. The law requires that there be first a lawful arrest before a search
can be made; the process cannot be reversed.26 However, if there are valid reasons to conduct
lawful search and seizure which thereafter shows that the accused is currently committing a
crime, the accused may be lawfully arrested in flagrante delicto27 without need for a warrant of
arrest.

Finding that the warrantless arrest preceded the warrantless search in the case at bar, the trial
court granted private respondent's demurrer to evidence and acquitted him of all the three
charges for lack of evidence, because the unlawful arrest resulted in the inadmissibility of the
evidence gathered from an invalid warrantless search. The trial court’s ratiocination is quoted as
follows:

The threshold issue raised by the accused in his Demurrer to Evidence is whether his warrantless
arrest and search were lawful as argued by the prosecution, or unlawful as asserted by the
defense.

Under Section 5, Rule 113 of the New Rules of Court, a peace officer may arrest a person
without a warrant: (a) when in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense; (b) when an offense has in fact just been
committed, and he has personal knowledge of facts indicating that the person to be arrested has
committed it, and (c) when the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while being
transferred from one confinement to another. None of these circumstances were present when the
accused was arrested. The accused was merely walking from the Maria Orosa Apartment and
was about to enter the parked BMW car when the police officers arrested and frisked him and
searched his car. The accused was not committing any visible offense at the time of his arrest.
Neither was there an indication that he was about to commit a crime or that he had just
committed an offense. The unlicensed AMT Cal.380 9mm Automatic Back-up Pistol that the
accused had in his possession was concealed inside the right front pocket of his pants. And the
handgun was bantam and slim in size that it would not give an outward indication of a concealed
gun if placed inside the pant's side pocket as was done by the accused. The arresting officers had
no information and knowledge that the accused was carrying an unlicensed handgun, nor did
they see him in possession thereof immediately prior to his arrest.

Ditto on the 32 bags of shabu and the other unlicensed Daewoo Cal. 9mm Pistol with magazine
that were found and seized from the car. The contraband items in the car were not in plain view.
The 32 bags of shabu were in the trunk compartment, and the Daewoo handgun was underneath
the driver’s seat of the car. The police officers had no information, or knowledge that the banned
articles were inside the car, or that the accused had placed them there. The police officers
searched the car on mere suspicion that there was shabu therein.

On this matter, pertinent portions of the testimonies of Police Inspector Cielito Coronel and SP03
Reynaldo are hereunder quoted:

POLICE INSPECTOR CIELITO CORONEL’S TESTIMONY

"PROSECUTOR TO WITNESS: Direct-Examination

Q. Mr. Witness, what was your role or participation in this case?

A. I am one of those responsible for the arrest of the accused.

xxx xxx xxx

Q. Where did you make that arrest, Mr. Witness?

A. The apprehension was made in front of an apartment along Maria Orosa Street, Ermita,
Manila.

Q. What date was that when you arrested the accused?

A. It was on May 17, 1996, at about 2:10 a.m.

xxx xxx xxx

Q. What was the reason why you together with other policemen effected the arrest of the
accused?

A. We arrested him because of the information relayed to us by one of those whom we have
previously apprehended in connection with the delivery of shabu somewhere also in Ermita,
Manila.

xxx xxx xxx

Q. When you established that he was somewhere at Maria Orosa, what did you do?

A. We waited for him.

xxx xxx xxx

Q. You yourself, Mr. Witness, where did you position yourself during that time?

A. I was inside a vehicle waiting for the accused to appear.

Q. What about your other companions where were they?

A. They were position in strategic places within the area.

Q. What happened when you and your companions were positioned in that place?

A. That was when the accused arrived.

Q. How many of your approached him.

A. Inspector Margallo, myself and two other operatives.

Q. What happened when you approached the accused, Mr. Witness?

A. We introduced ourselves as police officers and we frisked him and we asked him to open the
back compartment of his car.

Q. You said you frisked him, what was the result of that?

A. He was found in possession of one back-up pistol with one loaded magazine and likewise
when the compartment was opened several plastic bags containing white crystalline substance
suspected to be shabu (were found).

Q. What did you do when you found out Mr. Witness?

A. When the car was further search we later found another firearm, a Daewoo Pistol at the place
under the seat of the driver.

Q. Then what happened?

A. He was brought to our headquarters at Mandaluyong for further investigation.

Q. What about the suspected shabu that you recovered, what did you do with that?

A. The suspected shabu that we recovered were forwarded to the NBI for laboratory
examination.

Q. Did you come to know the results?

A. It was found positive for methamphetamine hydrochloride. (TSN, pp. 3-8, November 15,
1996).

ATTY. LOZANO TO WITNESS: CROSS

Q. You arrested Joseph Junio and Redentor Teck for alleged transporting of shabu on May 16,
1996, at 11:00 p.m., is it not?

A. Yes, Sir.

Q. You asked Redentor Teck where he is employed, is it not?

A. Yes, Sir.

xxx xxx xxx

Q. Redentor Teck told you that he is a talent manager at the Glenmore Modeling Agency, is it
not?

A. Yes, Sir.

.Q. The Glenmore Modeling Agency is owned by Lawrence Wang, is it not?

A. I supposed, Sir.

Q. And that is why immediately after Redentor Teck told you that he is an employee of the
Glenmore Modeling Agency owned by Lawrence Wang, naturally, you and your companions
look for Lawrence Wang to shed light on the transporting of shabu by Redentor Teck and Joseph
Junio, is it not?

A. Yes, Sir.

Q. Thereafter, you spotted a person previously described by Redentor Teck as Lawrence Wang,
is it not?

A. Yes, Sir.

Q. While you were arresting Lawrence Wang, your companions at the same time searched the
BMW car described in your affidavit of arrest, is it not?

A. Yes, Sir.

xxx xxx xxx

Q. Lawrence Wang was not inside the BMW car while the same was searched, is it not?

A. He was outside, Sir.

Q. The driver of the car was inside the car when the arrest and search were made, is it not?

A. He was likewise outside, Sir.

Q. Lawrence Wang did resist arrest and search is it not?

A. Yes, Sir.

Q. When you effected the arrest, there was no warrant of arrest, is it not?

A. Yes, Sir.

Q. When the search was made on the BMW car, there was no search warrant, is it not?

A. Yes, none, Sir. (TSN, pp. 3-12, November 15, 1996)

SPO3 REYNALDO CRISTOBAL’S TESTIMONY

PROSECUTOR TO WITNESS: DIRECT EXAMINATION

Q. What is you role or participation in this case?

A. I was one of the arresting officers and investigator, Sir.

xxx xxx xxx

Q. What kind of specific offense did the accused allegedly do so that you arrested him, Mr.
Witness?

A. He was arrested on the basis of the recovered drugs in his possession placed inside his car.

xxx xxx xxx

Q. Mr. witness, you said that you recovered drug from the car of the accused, please tell us the
antecedent circumstances which led you to recover or confiscate these items?

A. Earlier in the evening about 11:00 p.m. of May 16, we arrested one Redentor Teck and Joseph
Junio.

COURT: Where did you arrest these people?

A They were arrested in Metro Manila also.

COURT: The same date?

A. May 16, about 11:00 p.m. They were arrested and when they were investigated, Teck
mentioned the name of Lawrence Wang as his employer.

COURT: Why were these people, arrested?

A. For violation of R.A. 6425.

COURT: How were they arrested?

A. They were arrested while in the act of transporting shabu or handling shabu to another
previously arrested person. It was a series of arrest.

COURT: So, this involved a series of operation?

A. Yes, Your Honor. About 11:00 p.m. of May 16, we arrested three (3) persons, SPO2 Vergel
de Dios, a certain Arellano and a certain Rogelio Noble. When they were arrested they divulged
the name of the source.

COURT: They were arrested for what, for possession?

A. Yes, Your Honor. For unlawful possession of shabu . Then they divulged to us the name of
the person from whom they get shabu.

COURT: Whose name did they mention:

A. One Alias Frank, who turned out to be Redentor Teck and Joseph Junio. We let them call
Redentor Teck and Joseph Junio thru the cellphone and pretend and to order another supply of
shabu.

COURT: So there was an entrapment?

A. Yes, Your Honor.

COURT: So, these two (2) were arrested?

A. While they were about to hand over another bag of shabu to Noble and company.

COURT: And these two reveals (revealed) some information to you as to the source of the
shabu?

A. Yes, Your Honor.

COURT: What was the information?

A. Teck told us that he is an employee of Lawrence Wang.

COURT: What did you do when you were told about that?

A. They also told us that there was an ongoing delivery of shabu on that morning.

COURT: When?

A. Of that date early morning of May 17, 1996.

COURT: At what place?

A. We asked them where we could find Lawrence Wang and Teck lead us to Maria Orosa
Apartment where we conducted a stake out which lasted up to 2:00 a.m.
 xxx xxx xxx

COURT: What happened during the stake out?

A. When the person of the accused was identified to us, we saw him opening his car together
with his driver.

COURT: So, he was about to leave when you saw him?

A. Probably, Sir.

COURT: What did you do?

A. We saw him opened his car and we have a suspicion that there was a shabu inside the
compartment of the car.

xxx xxx xxx

COURT: All right, when you saw the accused opened his car, what did you do?

A. We approached him.

COURT: What happened when you approached him?

A. We suspected the shabu inside the compartment of his car.

COURT: And this shabu that you saw inside the compartment of the car, what did you do with
that?

A. Well, he was first arrested by Captain Margallo and Lt. Coronel while I was the one who
inspected and opened the compartment of the car and saw the shabu. (TSN, pp. 15-24, December
16, 1996).

CLARIFICATORY QUESTIONING OF SPO3 CRISTOBAL BY THE COURT

COURT: From your testimony and that of Police Inspector Cielito Coronel, this Court has
gathered that prior to the arrest of the accused there were three (3) men that your team arrested.
One of whom is a police officer.

A: Yes, Sir.

xxx xxx xxx

COURT: And on the occasion of the arrest of these three men shabu were confiscated from
them?

A: Yes, Sir.

Q: And in the course of the investigation of these three men, you were able to discover that
Redentor Teck and Joseph Junio were the source of the regulated drug that were confiscated
from the three men that you have arrested?

A: Yes, Sir.

Q: Now, thru entrapment base[d] on your testimony you were able to apprehend also these two
men, Redentor Teck and Joseph Junio?

A: Yes, Sir.

xxx xxx xxx

Q: These two men, Redentor Teck and Joseph Junio they were also investigated by your team?
A: Yes, Sir.

Q: You were present while they were investigated?

A: I was the one whom investigated them.

xxx xxx xxx

Q: Did you ask Redentor and Joseph the source of shabu that you confiscated from them at the
time of the (their) arrest?

A: Yes, Sir. They refuse to say the source, however, they told me that they were working for the
accused.

Q: You also testified that Redentor informed you that there was another delivery of shabu
scheduled that morning of (stop) was it May 16 or 17? The other delivery that is scheduled on?

A: On the 17th.

xxx xxx xxx

Q: Did he tell you who was to make the delivery?

A: No, Sir.

xxx xxx xxx

Q: At that time when you decided to look for the accused to ask him to shed light on the matter
concerning the arrest of these two employees in possession of shabu. Did you and did your team
suspect the accused as being involved in the transaction that lead (led) to the arrest of Redentor
and Joseph?

A: Yes, Sir. We suspected that he was the source of the shabu.

xxx xxx xxx

Q: When you saw the accused walking towards his car, did you know whether he was carrying a
gun?

A: No, Sir. It cannot be seen.

Q: It was concealed?

A: Yes, Sir.

Q: So, the only time that you and your team learned that he was in possession of the gun is when
he was bodily search?

A: Yes, Sir. That is the only time that I came to know about when Capt. Margallo handed to me
the gun.

Q: Other than walking towards his car, the accused was not doing anything else?

A: None, Sir.

Q: That would invite your suspicion or give indication that he was intending to do something
unlawful or illegal?

A: No, Sir.

Q: When you searched the car, did the accused protest or try to prevent your team from searching
his car?
A: No, Sir." (TSN pp. 3-16, Feb. 26, 1997)

Clearly therefore, the warrantless arrest of the accused and the search of his person and the car
were without probable cause and could not be licit. The arrest of the accused did not fall under
any of the exception to the requirements of warrantless arrests, (Sec. 5, Rule 113, Rules of Court)
and is therefore, unlawful and derogatory of his constitutional right of liberty. x x x

The trial court resolved the case on the basis of its findings that the arrest preceded the search,
and finding no basis to rule in favor of a lawful arrest, it ruled that the incidental search is
likewise unlawful. Any and all pieces of evidence acquired as a consequence thereof are
inadmissible in evidence. Thus, the trial court dismissed the case for lack of evidence.

Contrary to its position at the trial court, the People, however, now posits that "inasmuch as it
has been shown in the present case that the seizure without warrant of the regulated drugs and
unlicensed firearms in the accused’s possession had been validly made upon probable cause and
under exigent circumstances, then the warrantless arrest of the accused must necessarily have to
be regarded as having been made on the occasion of the commission of the crime in flagrante
delicto, and therefore constitutionally and statutorily permissible and lawful."28In effect, the
People now contends that the warrantless search preceded the warrantless arrest. Since the case
falls under an exception to the general rule requiring search warrant prior to a valid search and
seizure, the police officers were justified in requiring the private respondent to open his BMW
car’s trunk to see if he was carrying illegal drugs.

The conflicting versions as to whether the arrest preceded the search or vice versa, is a matter of
credibility of evidence. It entails appreciation of evidence, which may be done in an appeal of a
criminal case because the entire case is thrown open for review, but not in the case of a petition
for certiorari where the factual findings of the trial court are binding upon the Court. Since a
dismissal order consequent to a demurrer to evidence is not subject to appeal and reviewable
only by certiorari, the factual finding that the arrest preceded the search is conclusive upon this
Court. The only legal basis for this Court to possibly reverse and set aside the dismissal order of
the trial court upon demurrer to evidence would be if the trial court committed grave abuse of
discretion in excess of jurisdiction when it ruled that there was no legal basis to lawfully effect a
warrantless arrest.

The pertinent provisions of Rule 113 of the Rules on Criminal Procedure on warrantless arrest
provide:

Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a
warrant, arrest a person:

a) When, in his presence, the person to be arrested has committed, is actually committing,
or is attempting to commit an offense;

b) When an offense has just been committed, and he has probable cause to believe based
on personal knowledge of facts or circumstances that the person to be arrested has
committed it; and

c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily confined
while his case is pending, or has escaped while being transferred from one confinement
to another.

Section 5, above, provides three (3) instances when warrantless arrest may be lawfully effected:
(a) arrest of a suspect in flagrante delicto; (b) arrest of a suspect where, based on personal
knowledge of the arresting officer, there is probable cause that said suspect was the author of a
crime which had just been committed; (c) arrest of a prisoner who has escaped from custody
serving final judgment or temporarily confined while his case is pending.

For a warrantless arrest of an accused caught in flagrante delicto under paragraph (a) of Section 5
to be valid, two requisites must concur: (1) the person to be arrested must execute an overt act
indicating that he has just committed, is actually committing, or is attempting to commit a crime;
and (2) such overt act is done in the presence or within the view of the arresting
officer.291awphi1.nét

The facts and circumstances surrounding the present case did not manifest any suspicious
behavior on the part of private respondent Lawrence Wang that would reasonably invite the
attention of the police. He was merely walking from the Maria Orosa Apartment and was about
to enter the parked BMW car when the police operatives arrested him, frisked and searched his
person and commanded him to open the compartment of the car, which was later on found to be
owned by his friend, David Lee. He was not committing any visible offense then. Therefore,
there can be no valid warrantless arrest in flagrante delicto under paragraph (a) of Section 5. It is
settled that "reliable information" alone, absent any overt act indicative of a felonious enterprise
in the presence and within the view of the arresting officers, is not sufficient to constitute
probable cause that would justify an in flagrante delicto arrest.30

Neither may the warrantless arrest be justified under paragraph (b) of Section 5. What is clearly
established from the testimonies of the arresting officers is that Wang was arrested mainly on the
information that he was the employer of Redentor Teck and Joseph Junio who were previously
arrested and charged for illegal transport of shabu. Teck and Junio did not even categorically
identify Wang to be their source of the shabu they were caught with in flagrante delicto. Upon
the duo’s declaration that there will be a delivery of shabu on the early morning of the following
day, May 17, which is only a few hours thereafter, and that Wang may be found in Maria Orosa
Apartment along Maria Orosa Street, the arresting officers conducted "surveillance" operation in
front of said apartment, hoping to find a person which will match the description of one
Lawrence Wang, the employer of Teck and Junio. These circumstances do not sufficiently
establish the existence of probable cause based on personal knowledge as required in paragraph
(b) of Section 5.

And doubtless, the warrantless arrest does not fall under paragraph (c) of Section 5.

The inevitable conclusion, as correctly made by the trial court, is that the warrantless arrest was
illegal. Ipso jure, the warrantless search incidental to the illegal arrest is likewise unlawful.

In People v. Aminnudin,31 the Court declared as inadmissible in evidence the marijuana found in
appellant’s possession during a search without a warrant, because it had been illegally seized, in
disregard of the Bill of Rights:

In the case at bar, the accused-appellant was not, at the moment of his arrest, committing a crime
nor was it shown that he was about to do so or that he had just done so. What he was doing was
descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called
for his arrest. To all appearances, he was like any of the other passengers innocently
disembarking from the vessel. It was only when the informer pointed to him as the carrier of the
marijuana that he suddenly became a suspect and so subject to apprehension. It was the fugitive
finger that triggered his arrest. The identification of the informer was the probable cause as
determined by the officer (and not a judge) that authorized them to pounce upon Aminnudin and
immediately arrest him.

The People’s contention that Wang waived his right against unreasonable search and seizure has
no factual basis. While we agree in principle that consent will validate an otherwise illegal
search, however, based on the evidence on record, Wang resisted his arrest and the search on his
person and belongings.32 The implied acquiescence to the search, if there was any, could not
have been more than mere passive conformity given under intimidating or coercive
circumstances and is thus considered no consent at all within the purview of the constitutional
guarantee.33Moreover, the continuing objection to the validity of the warrantless arrest made of
record during the arraignment bolsters Wang’s claim that he resisted the warrantless arrest and
search.

We cannot close this ponencia without a word of caution: those who are supposed to enforce the
law are not justified in disregarding the rights of the individual in the name of order. Order is too
high a price for the loss of liberty. As Justice Holmes once said, "I think it is less evil that some
criminals should escape than that the government should play an ignoble part." It is simply not
allowed in free society to violate a law to enforce another, especially if the law violated is the
Constitution itself.34
WHEREFORE, the instant petition is DENIED.

SO ORDERED.
14.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 182348 November 20, 2008

PEOPLE OF THE PHILIPPINES, plaintiff-appellee

vs.
CARLOS DELA CRUZ, accused-appellant.

DECISION

VELASCO, JR., J.:

This is an appeal from the November 29, 2007 Decision of the Court of Appeals (CA) in CA-
G.R. CR-H.C. No. 02286 entitled People of the Philippines v. Carlos Dela Cruz which affirmed
the September 16, 2005 Decision of the Regional Trial Court (RTC), Branch 77 in San Mateo,
Rizal in Criminal Case Nos. 6517 (Illegal Possession of Firearm and Ammunition) and 6518
(Possession of Dangerous Drug). The RTC found accused- appellant Carlos Dela Cruz guilty
beyond reasonable doubt of violation of Section 11(2) of Republic Act No. (RA) 9165 or
The Comprehensive Dangerous Drugs Act of 2002.

The Facts

On November 15, 2002, charges against accused-appellant were made before the RTC. The
Informations read as follows:

Criminal Case No. 6517

That, on or about the 20th day of October 2002, in the Municipality of San Mateo,
Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, being then a private citizen, without any lawful authority, did then
and there willfully, unlawfully, and knowingly have in his possession and under his
custody and control One (1) Gauge Shotgun marked ARMSCOR with Serial No.
1108533 loaded with four (4) live ammunition, which are high powered firearm and
ammunition respectively, without first securing the necessary license to possess or permit
to carry said firearm and ammunition from the proper authorities.

Criminal Case No. 6518

That on or about the 20th day of October 2002, in the Municipality of San Mateo,
Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, not being authorized by law, did then and there willfully,
unlawfully and knowingly have in his possession, direct custody and control one (1) heat-
sealed transparent plastic bag weighing 49.84 grams of white crystalline substance, which
gave positive results for Methamphetamine Hydrochloride, a dangerous drug.1

Accused-appellant entered a not guilty plea and trial ensued.

The facts, according to the prosecution, showed that in the morning of October 20, 2002, an
informant tipped off the Drug Enforcement Unit of the Marikina Police Station that wanted drug
pusher Wifredo Loilo alias "Boy Bicol" was at his nipa hut hideout in San Mateo, Rizal. A team
was organized to arrest Boy Bicol. Once there, they saw Boy Bicol by a table talking with
accused-appellant. They shouted "Boy Bicol sumuko ka na may warrant of arrest ka. (Surrender
yourself Boy Bicol you have a warrant of arrest.)" Upon hearing this, Boy Bicol engaged them in
a shootout and was fatally shot. Accused-appellant was seen holding a shotgun through a
window. He dropped his shotgun when a police officer pointed his firearm at him. The team
entered the nipa hut and apprehended accused-appellant. They saw a plastic bag of
suspected shabu, a digital weighing scale, drug paraphernalia, ammunition, and magazines lying
on the table. PO1 Calanoga, Jr. put the markings "CVDC," the initials of accused-appellant, on
the bag containing the seized drug.

Accused-appellant was subsequently arrested. The substance seized from the hideout was sent to
the Philippine National Police crime laboratory for examination and tested positive for
methamphetamine hydrochloride or shabu. He was thus separately indicted for violation of RA
9165 and for illegal possession of firearm.

According to the defense, accused-appellant was at Boy Bicol's house having been asked to do a
welding job for Boy Bicol's motorcycle. While accused-appellant was there, persons who
identified themselves as police officers approached the place, prompting accused-appellant to
scamper away. He lied face down when gunshots rang. The buy-bust team then helped him get
up. He saw the police officers searching the premises and finding shabu and firearms, which
were on top of a table or drawer.2 When he asked the reason for his apprehension, he was told
that it was because he was a companion of Boy Bicol. He denied under oath that the gun and
drugs seized were found in his possession and testified that he was only invited by Boy Bicol to
get the motorcycle from his house.3

The RTC acquitted accused-appellant of illegal possession of firearm and ammunition but
convicted him of possession of dangerous drugs. The dispositive portion of the RTC Decision
reads:

WHEREFORE, the Court based on insufficiency of evidence hereby ACQUITS accused

CARLOS DELA CRUZ Y VICTORINO in Criminal Case No. 6517 for violation of P.D.
1866 as amended by RA 8294.

In Criminal Case No. 6518 for Possession of Dangerous Drug under Section 11,
2nd paragraph of Republic Act 9165, the Court finds said accused CARLOS DELA
CRUZ Y VICTORINO, GUILTY beyond reasonable doubt and is hereby sentenced to
Life Imprisonment and to Pay a Fine of FOUR HUNDRED THOUSAND PESOS
(P400,000.00).

SO ORDERED.4

On December 7, 2005, accused-appellant filed a Notice of Appeal of the RTC Decision.

In his appeal to the CA, accused-appellant claimed that: (1) the version of the prosecution should
not have been given full credence; (2) the prosecution failed to prove beyond reasonable doubt
that he was guilty of possession of an illegal drug; (3) his arrest was patently illegal; and (4) the
prosecution failed to establish the chain of custody of the illegal drug allegedly in his possession.

The CA sustained accused-appellant's conviction.5 It pointed out that accused-appellant was

positively identified by prosecution witnesses, rendering his uncorroborated denial and allegation
of frame-up weak. As to accused-appellant's alleged illegal arrest, the CA held that he is deemed
to have waived his objection when he entered his plea, applied for bail, and actively participated
in the trial without questioning such arrest.

On the supposedly broken chain of custody of the illegal drug, the appellate court held that
accused-appellant's claim is unpersuasive absent any evidence showing that the plastic sachet
of shabu had been tampered or meddled with.

On December 20, 2007, accused-appellant filed his Notice of Appeal of the CA Decision.

On June 25, 2008, this Court required the parties to submit supplemental briefs if they so desired.
The parties later signified their willingness to submit the case on the basis of the records already
with the Court.

Accused-appellant presents the following issues before us:

I
 THE COURT A QUO GRAVELY ERRED IN GIVING FULL CREDENCE TO THE
VERSION OF THE PROSECUTION

II

THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-

APPELLANT GUILTY OF VIOLATION OF SECTION 11, ARTICLE II, RA 9165
DESPITE THE FAILURE OF THE PROSECUTION TO PROVE THE COMMISSION
OF THE OFFENSE CHARGED BEYOND REASONABLE DOUBT

III

THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED-

APPELLANT OF THE OFFENSE CHARGED DESPITE THE PATENT ILLEGALITY
OF HIS ARREST

IV

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-

APPELLANT OF VIOLATION OF SECTION 11, ARTICLE II, RA 9165 DESPITE
THE FAILURE OF THE PROSECUTION TO ESTABLISH THE CHAIN OF
CUSTODY OF THE ILLEGAL DRUG ALLEGEDLY FOUND IN HIS POSSESSION

Accused-appellant claims that the presence of all the elements of the offense of possession of
dangerous drug was not proved beyond reasonable doubt since both actual and constructive
possessions were not proved. He asserts that the shabuwas not found in his actual possession, for
which reason the prosecution was required to establish that he had constructive possession over
the shabu. He maintains that as he had no control and dominion over the drug or over the place
where it was found, the prosecution likewise failed to prove constructive possession.

The Court's Ruling

The appeal has merit.

The elements in illegal possession of dangerous drug are: (1) the accused is in possession of an
item or object which is identified to be a prohibited drug; (2) such possession is not authorized
by law; and (3) the accused freely and consciously possessed the said drug.6 On the third
element, we have held that the possession must be with knowledge of the accused or that animus
possidendi existed with the possession or control of said articles.7 Considering that as to this
knowledge, a person's mental state of awareness of a fact is involved, we have ruled that:

Since courts cannot penetrate the mind of an accused and thereafter state its perceptions
with certainty, resort to other evidence is necessary. Animus possidendi, as a state of
mind, may be determined on a case-to-case basis by taking into consideration the prior or
contemporaneous acts of the accused, as well as the surrounding circumstances. Its
existence may and usually must be inferred from the attendant events in each particular
case.8

The prior or contemporaneous acts of accused-appellant show that: he was inside the nipa hut at
the time the buy-bust operation was taking place; he was talking to Boy Bicol inside the nipa hut;
he was seen holding a shotgun; when PO1 Calanoga, Jr. pointed his firearm at accused-appellant,
the latter dropped his shotgun; and when apprehended, he was in a room which had the
seized shabu, digital weighing scale, drug paraphernalia, ammunition, and magazines. Accused-
appellant later admitted that he knew what the content of the seized plastic bag was.9

Given the circumstances, we find that the prosecution failed to establish possession of the shabu,
whether in its actual or constructive sense, on the part of accused-appellant.

The two buy-bust team members corroborated each other's testimonies on how they saw Boy
Bicol talking to accused-appellant by a table inside the nipa hut. That table, they testified, was
the same table where they saw the shabu once inside the nipa hut. This fact was used by the
prosecution to show that accused-appellant exercised dominion and control over the shabu on the
table. We, however, find this too broad an application of the concept of constructive possession.

In People v. Torres,10 we held there was constructive possession of prohibited drugs even when
the accused was not home when the prohibited drugs were found in the master's bedroom of his
house.

In People v. Tira,11 we sustained the conviction of the accused husband and wife for illegal
possession of dangerous drugs. Their residence was searched and their bed was found to be
concealing illegal drugs underneath. We held that the wife cannot feign ignorance of the drugs'
existence as she had full access to the room, including the space under the bed.

In Abuan v. People,12 we affirmed the finding that the accused was in constructive possession of
prohibited drugs which had been found in the drawer located in her bedroom.

In all these cases, the accused was held to be in constructive possession of illegal drugs since
they were shown to enjoy dominion and control over the premises where these drugs were found.

In the instant case, however, there is no question that accused-appellant was not the owner of the
nipa hut that was subject of the buy-bust operation. He did not have dominion or control over the
nipa hut. Neither was accused-appellant a tenant or occupant of the nipa hut, a fact not disputed
by the prosecution. The target of the operation was Boy Bicol. Accused-appellant was merely a
guest of Boy Bicol. But in spite of the lack of evidence pinning accused-appellant to illegal
possession of drugs, the trial court declared the following:

It cannot be denied that when the accused was talking with Boy Bicol he knew that
the shabu was on the table with other items that were confiscated by the police
operatives. The court [surmises] that the accused and boy Bicol were members of a gang
hiding in that nipa hut where they were caught red-handed with prohibited items and
dangerous [drugs].13

The trial court cannot assume, based on the prosecution's evidence, that accused-appellant was
part of a gang dealing in illegal activities. Apart from his presence in Boy Bicol's nipa hut, the
prosecution was not able to show his participation in any drug-dealing. He was not even in
possession of drugs in his person. He was merely found inside a room with shabu, not as the
room's owner or occupant but as a guest. While he allegedly pointed a firearm at the buy-bust
team, the prosecution curiously failed to produce the firearm that accused-appellant supposedly
used.

The prosecution in this case clearly failed to show all the elements of the crime absent a showing
of either actual or constructive possession by the accused-appellant.

Since accused-appellant was not in possession of the illegal drugs in Boy Bicol's nipa hut, his
subsequent arrest was also invalid. Rule 113 of the Rules on Criminal Procedure on warrantless
arrest provides:

Sec. 5. Arrest without warrant; when lawful.--A peace officer or a private person may,
without a warrant, arrest a person:

a) When, in his presence, the person to be arrested has committed, is actually committing,
or is attempting to commit an offense;

b) When an offense has just been committed, and he has probable cause to believe based
on personal knowledge of facts or circumstances that the person to be arrested has
committed it; and

c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily confined
while his case is pending, or has escaped while being transferred from one confinement
to another.
The warrantless arrest of accused-appellant was effected under Sec. 5(a), arrest of a suspect in
flagrante delicto. For this type of warrantless arrest to be valid, two requisites must concur: (1)
the person to be arrested must execute an overt act indicating that he has just committed, is
actually committing, or is attempting to commit a crime; and (2) such overt act is done in the
presence or within the view of the arresting officer.14

Accused-appellant's act of pointing a firearm at the buy-bust team would have been sufficient
basis for his arrest in flagrante delicto; however, the prosecution was not able to adequately
prove that accused-appellant was committing an offense. Although accused-appellant merely
denied possessing the firearm, the prosecution's charge was weak absent the presentation of the
alleged firearm. He was eventually acquitted by the trial court because of this gaffe. His arrest,
independent of the buy-bust operation targeting Boy Bicol, was therefore not lawful as he was
not proved to be committing any offense.

In sum, we find that there is insufficient evidence to show accused-appellant's guilt beyond
reasonable doubt. Having ruled on the lack of material or constructive possession by accused-
appellant of the seized shabu and his succeeding illegal arrest, we deem it unnecessary to deal
with the other issue raised.

WHEREFORE, the appeal is GRANTED. The CA Decision dated November 29, 2007 in CA-
G.R. CR-H.C. No. 02286 is REVERSED and SET ASIDE. Accused-appellant Carlos Dela Cruz
is ACQUITTED of violation of Sec. 11(2) of RA 9165 in Criminal Case No. 6518 of the RTC,
Branch 77 in San Mateo, Rizal.

SO ORDERED.
15.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 204603 September 24, 2013

REPUBLIC OF THE G.R. No. 204603 PHILIPPINES, represented by THE EXECUTIVE

SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF FOREIGN
AFFAIRS, THE SECRETARY OF NATIONALDEFENSE, THE SECRETARY OF THE
INTERIOR AND LOCAL GOVERNMENT THE SECRETARY OF FINANCE, THE
NATIONAL SECURITY ADVISER, THE SECRETARY OF BUDGET AND
MANAGEMENT THE TREASURER OF THE PHILIPPINES, THE CHIEF OF STAFF OF
THE ARMED FORCES OF THE PHILIPPINES, and THE CHIEFOF THE PHILIPPINE
NATIONAL POLICE, Petitioners,
vs.
HERMINIO HARRY ROQUE, MORO CHRISTIAN PEOPLE'S ALLIANCE, FR. JOE DIZON,
RODINIE SORIANO, STEPHANIE ABIERA, MARIA LOURDES ALCAIN, VOLTAIRE
ALFEREZ, CZARINA MAYALTEZ, SHERYL BALOT, RENIZZA BATACAN, EDAN
MARRI CAÑETE, LEANA CARAMOAN, ALDWIN CAMANCE, RENE DELORINO,
PAULYN MAY DUMAN, RODRIGO FAJARDO III, ANNAMARIE GO, ANNA ARMINDA
JIMENEZ, MARY ANN LEE,LUISA MANALAYSAY, MIGUEL MUSNGI, MICHAEL
OCAMPO, NORMAN ROLAND OCANA III, WILLIAM RAGAMAT, MARICAR RAMOS,
CHERRY LOU REYES, MELISSA ANN SICAT, CRISTINE MAE TABING, VANESSA
TORNO, and HON. JUDGE ELEUTERIO L. BATHAN, as Presiding Judge of Regional Trial
Court, Quezon City, Branch 92, Respondents.

RESOLUTION

PERLAS-BERNABE, J.:

Assailed in this petition for certiorari1 are the April 23, 20122 and July 31, 20123 Orders of the
Regional Trial Court of Quezon City, Branch 92(RTC) in Special Civil Action (SCA) No. Q-07-
60778, denying petitioners’ motion to dismiss (subject motion to dismiss) based on the following
grounds: (a) that the Court had yet to pass upon the constitutionality of Republic Act No. (RA)
9372,4 otherwise known as the "Human Security Act of 2007," in the consolidated cases of
Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council5 (Southern
Hemisphere); and (b) that private respondents’ petition for declaratory relief was proper.

The Facts

On July 17, 2007, private respondents filed a Petition6 for declaratory relief before the RTC,
assailing the constitutionality of the following sections of RA 9372: (a) Section 3,7 for being void
for vagueness;8 (b) Section 7,9for violating the right to privacy of communication and due
process and the privileged nature of priest-penitent relationships;10 (c)Section 18,11 for violating
due process, the prohibition against ex post facto laws or bills of attainder, the Universal
Declaration of Human Rights, and the International Covenant on Civil and Political Rights, as
well as for contradicting Article 12512 of the Revised Penal Code, as amended;13 (d) Section
26,14 for violating the right to travel;15 and (e) Section 27,16 for violating the prohibition against
unreasonable searches and seizures.17

Petitioners moved to suspend the proceedings,18 averring that certain petitions (SC petitions)
raising the issue of RA 9372’s constitutionality have been lodged before the Court.19 The said
motion was granted in an Order dated October 19, 2007.20

On October 5, 2010, the Court promulgated its Decision21 in the Southern Hemisphere cases and
thereby dismissed the SC petitions.
On February 27, 2012, petitioners filed the subject motion to dismiss,22 contending that private
respondents failed to satisfy the requisites for declaratory relief. Likewise, they averred that the
constitutionality of RA 9372 had already been upheld by the Court in the Southern Hemisphere
cases.

In their Comment/Opposition,23 private respondents countered that: (a) the Court did not resolve
the issue of RA 9372’s constitutionality in Southern Hemisphere as the SC petitions were
dismissed based purely on technical grounds; and (b) the requisites for declaratory relief were
met.

The RTC Ruling

On April 23, 2012, the RTC issued an Order24 which denied the subject motion to dismiss,
finding that the Court did not pass upon the constitutionality of RA 9372 and that private
respondents’ petition for declaratory relief was properly filed.

Petitioners moved for reconsideration25 which was, however, denied by the RTC in an Order
dated July 31, 2012.26The RTC observed that private respondents have personal and substantial
interests in the case and that it would be illogical to await the adverse consequences of the
aforesaid law’s implementation considering that the case is of paramount impact to the Filipino
people.27

Hence, the instant petition.

The Issues Before the Court

The present controversy revolves around the issue of whether or not the RTC gravely abused its
discretion when it denied the subject motion to dismiss.

Asserting the affirmative, petitioners argue that private respondents failed to satisfy the
requirements for declaratory relief and that the Court had already sustained with finality the
constitutionality of RA 9372.

On the contrary, private respondents maintain that the requirements for declaratory relief have
been satisfied and that the Court has yet to resolve the constitutionality of RA 9372, negating any
grave abuse of discretion on the RTC’s part.

The Court’s Ruling

The petition is meritorious.

An act of a court or tribunal can only be considered as with grave abuse of discretion when such
act is done in a capricious or whimsical exercise of judgment as is equivalent to lack of
jurisdiction.28 It is well-settled that the abuse of discretion to be qualified as "grave" must be so
patent or gross as to constitute an evasion of a positive duty or a virtual refusal to perform the
duty or to act at all in contemplation of law.29 In this relation, case law states that not every error
in the proceedings, or every erroneous conclusion of law or fact, constitutes grave abuse of
discretion.30The degree of gravity, as above-described, must be met.

Applying these principles, the Court observes that while no grave abuse of discretion could be
ascribed on the part of the RTC when it found that the Court did not pass upon the
constitutionality of RA 9372 in the Southern Hemisphere cases, it, however, exceeded its
jurisdiction when it ruled that private respondents’ petition had met all the requisites for an
action for declaratory relief. Consequently, its denial of the subject motion to dismiss was
altogether improper.

To elucidate, it is clear that the Court, in Southern Hemisphere, did not make any definitive
ruling on the constitutionality of RA 9372. The certiorari petitions in those consolidated cases
were dismissed based solely on procedural grounds, namely: (a) the remedy of certiorari was
improper;31 (b) petitioners therein lack locus standi;32and (c) petitioners therein failed to present
an actual case or controversy.33 Therefore, there was no grave abuse of discretion.
The same conclusion cannot, however, be reached with regard to the RTC’s ruling on the
sufficiency of private respondents’ petition for declaratory relief.

Case law states that the following are the requisites for an action for declaratory relief:

first , the subject matter of the controversy must be a deed, will, contract or other written
instrument, statute, executive order or regulation, or ordinance; second , the terms of said
documents and the validity thereof are doubtful and require judicial construction; third , there
must have been no breach of the documents in question; fourth , there must be an actual
justiciable controversy or the "ripening seeds" of one between persons whose interests are
adverse; fifth , the issue must be ripe for judicial determination; and sixth , adequate relief is not
available through other means or other forms of action or proceeding.34

Based on a judicious review of the records, the Court observes that while the
first,35 second,36 and third37requirements appear to exist in this case, the fourth, fifth, and sixth
requirements, however, remain wanting.

As to the fourth requisite, there is serious doubt that an actual justiciable controversy or the
"ripening seeds" of one exists in this case.

Pertinently, a justiciable controversy refers to an existing case or controversy that is appropriate

or ripe for judicial determination, not one that is conjectural or merely anticipatory.38 Corollary
thereto, by "ripening seeds" it is meant, not that sufficient accrued facts may be dispensed with,
but that a dispute may be tried at its inception before it has accumulated the asperity, distemper,
animosity, passion, and violence of a full blown battle that looms ahead. The concept describes a
state of facts indicating imminent and inevitable litigation provided that the issue is not settled
and stabilized by tranquilizing declaration.39

A perusal of private respondents’ petition for declaratory relief would show that they have failed
to demonstrate how they are left to sustain or are in immediate danger to sustain some direct
injury as a result of the enforcement of the assailed provisions of RA 9372. Not far removed
from the factual milieu in the Southern Hemisphere cases, private respondents only assert
general interests as citizens, and taxpayers and infractions which the government could
prospectively commit if the enforcement of the said law would remain untrammeled. As their
petition would disclose, private respondents’ fear of prosecution was solely based on remarks of
certain government officials which were addressed to the general public.40 They, however, failed
to show how these remarks tended towards any prosecutorial or governmental action geared
towards the implementation of RA 9372 against them. In other words, there was no particular,
real or imminent threat to any of them. As held in Southern Hemisphere:

Without any justiciable controversy, the petitions have become pleas for declaratory relief, over
which the Court has no original jurisdiction. Then again, declaratory actions characterized by
"double contingency," where both the activity the petitioners intend to undertake and the
anticipated reaction to it of a public official are merely theorized, lie beyond judicial review for
lack of ripeness.1âwphi1

The possibility of abuse in the implementation of RA 9372does not avail to take the present
petitions out of the realm of the surreal and merely imagined. Such possibility is not peculiar to
RA 9372 since the exercise of any power granted by law may be abused. Allegations of abuse
must be anchored on real events before courts may step in to settle actual controversies involving
rights which are legally demandable and enforceable.41 (Emphasis supplied; citations omitted)

Thus, in the same light that the Court dismissed the SC petitions in the Southern Hemisphere
cases on the basis of, among others, lack of actual justiciable controversy (or the ripening seeds
of one), the RTC should have dismissed private respondents’ petition for declaratory relief all the
same.

It is well to note that private respondents also lack the required locus standi to mount their
constitutional challenge against the implementation of the above-stated provisions of RA 9372
since they have not shown any direct and personal interest in the case.42 While it has been
previously held that transcendental public importance dispenses with the requirement that the
petitioner has experienced or is in actual danger of suffering direct and personal injury,43 it must
be stressed that cases involving the constitutionality of penal legislation belong to an altogether
different genus of constitutional litigation.44 Towards this end, compelling State and societal
interests in the proscription of harmful conduct necessitate a closer judicial scrutiny of locus
standi,45 as in this case. To rule otherwise, would be to corrupt the settled doctrine of locus
standi, as every worthy cause is an interest shared by the general public.46

As to the fifth requisite for an action for declaratory relief, neither can it be inferred that the
controversy at hand is ripe for adjudication since the possibility of abuse, based on the above-
discussed allegations in private respondents’ petition, remain highly-speculative and merely
theorized.1âwphi1 It is well-settled that a question is ripe for adjudication when the act being
challenged has had a direct adverse effect on the individual challenging it.47 This private
respondents failed to demonstrate in the case at bar.

Finally, as regards the sixth requisite, the Court finds it irrelevant to proceed with a discussion on
the availability of adequate reliefs since no impending threat or injury to the private respondents
exists in the first place.

All told, in view of the absence of the fourth and fifth requisites for an action for declaratory
relief, as well as the irrelevance of the sixth requisite, private respondents’ petition for
declaratory relief should have been dismissed. Thus, by giving due course to the same, it cannot
be gainsaid that the RTC gravely abused its discretion.

WHEREFORE, the petition is GRANTED. Accordingly, the April23, 2012 and July 31, 2012
Orders of the Regional Trial Court of Quezon City, Branch 92 in SCA No. Q-07-60778 are
REVERSED and SET ASIDE and the petition for declaratory relief before the said court is
hereby DISMISSED.

SO ORDERED.