HAROLD V. TAMARGO, Petitioner, vs. ROMULO AWINGAN, LLOYD ANTIPORDA and LICERIO ANTIPORDA, JR., Respondents.

DECISION CORONA, J.: This is a petition for review on certiorari1 of the November 10, 2006 decision2 and May 18, 2007 resolution3 of the Court of Appeals (CA) in CA-G.R. SP No. 93610. Atty. Franklin V. Tamargo and his eight-year-old daughter, Gail Franzielle, were shot and killed at around 5:15 p.m. of August 15, 2003 along Nueva Street corner Escolta Street, Binondo, Manila. The police had no leads on the perpetrators of the crime until a certain Reynaldo Geron surfaced and executed an affidavit dated September 12, 2003. He stated that a certain Lucio Columna told him during a drinking spree that Atty. Tamargo was ordered killed by respondent Lloyd Antiporda and that he (Columna) was one of those who killed Atty. Tamargo. He added that he told the Tamargo family what he knew and that the sketch of the suspect closely resembled Columna.4 After conducting a preliminary investigation and on the strength of Gerons affidavit, the investigating prosecutor5issued a resolution dated December 5, 2003 finding probable cause against Columna and three John Does.6 On February 2, 2004, the corresponding Informations for murder were filed against them in the Regional Trial Court (RTC) of Manila, one assigned to Branch 27 for the death of Atty. Franklin Tamargo, and the other to Branch 29 for the death of the minor Gail Franzielle.7 Columna was arrested in the province of Cagayan on February 17, 2004 and brought to Manila for detention and trial.8 On March 8, 2004, Columna (whose real name was Manuel, Jr.) executed an affidavit wherein he admitted his participation as "look out" during the shooting and implicated respondent Romulo Awingan (alias "Mumoy") as the gunman and one Richard Mecate. He also tagged as masterminds respondent Licerio Antiporda, Jr. and his son, respondent Lloyd Antiporda.9 The former was the ex-mayor and the latter the mayor of Buguey, Cagayan at that time. When the killing took place, Licerio Antiporda was in detention for a kidnapping case in which Atty. Tamargo was acting as private prosecutor. Pursuant to this affidavit, petitioner Harold V. Tamargo (brother of Atty. Tamargo) filed a complaint against those implicated by Columna in the Office of the City Prosecutor of Manila.10 On April 19, 2004, Columna affirmed his affidavit before the investigating prosecutor11 who subjected him to clarificatory questions.12 Respondents denied any involvement in the killings. They alleged that Licerio was a candidate for mayor in Buguey, Cagayan during the May 2004 elections and that the case was instituted by his political opponents in order to derail his candidacy. The Antipordas admitted that Atty. Tamargo was their political rival for the mayoralty post of Buguey. Atty. Tamargo had been defeated twice by Lloyd and once by Licerio. Before the killing, Atty. Tamargo filed an election case against Lloyd and a kidnapping case in the Sandiganbayan against Licerio. However, they claimed that both cases

were dismissed as Lloyd emerged as the winner in the elections and Licerio was acquitted by the Sandiganbayan.13 During the preliminary investigation, respondent Licerio presented Columnas unsolicited handwritten letter dated May 3, 2004 to respondent Lloyd, sent from Columnas jail cell in Manila. In the letter, Columna disowned the contents of his March 8, 2004 affidavit and narrated how he had been tortured until he signed the extrajudicial confession. He stated that those he implicated had no participation in the killings.14 Respondent Licerio also submitted an affidavit of Columna dated May 25, 2004 wherein the latter essentially repeated the statements in his handwritten letter. Due to the submission of Columnas letter and affidavit, the investigating prosecutor set a clarificatory hearing, to enable Columna to clarify his contradictory affidavits and his unsolicited letter. During the hearing held on October 22, 2004, Columna categorically admitted the authorship and voluntariness of the unsolicited letter. He affirmed the May 25, 2004 affidavit and denied that any violence had been employed to obtain or extract the affidavit from him.151avvphi1 Thus, on November 10, 2004, the investigating prosecutor recommended the dismissal of the charges. This was approved by the city prosecutor. Meanwhile, in another handwritten letter addressed to City Prosecutor Ramon Garcia dated October 29, 2004, Columna said that he was only forced to withdraw all his statements against respondents during the October 22, 2004 clarificatory hearing because of the threats to his life inside the jail. He requested that he be transferred to another detention center.16 Aggrieved by the dismissal of the charges, petitioner filed an appeal to the Department of Justice (DOJ).17 On May 30, 2005, the DOJ, through then Secretary Raul M. Gonzalez, reversed the dismissal and ordered the filing of the Informations for murder.18 He opined that the March 8, 2004 extrajudicial confession was not effectively impeached by the subsequent recantation and that there was enough evidence to prove the probable guilt of respondents.19 Accordingly, the Informations were filed and the cases were consolidated and assigned to the RTC of Manila, Branch 29.20 However, on August 12, 2005, Secretary Gonzales granted the Antipordas motion for reconsideration (MR) and directed the withdrawal of the Informations.21 This time, he declared that the extrajudicial confession of Columna was inadmissible against respondents and that, even if it was admissible, it was not corroborated by other evidence.22 As a result, on August 22, 2005, the trial prosecutor filed a motion to withdraw the Informations. On October 4, 2005, Secretary Gonzalez denied petitioners MR. The RTC, through Judge Cielito Mindaro-Grulla, granted the motion to withdraw the Informations in an order dated October 26, 2005.23 Petitioner filed an MR but the judge voluntarily inhibited herself without resolving the same. The cases were reraffled to Branch 19, presided by Judge Zenaida R. Daguna. Judge Daguna granted the MR of petitioner in a resolution dated December 9, 2005. She ruled that, based on Columnas March 8, 2004 affidavit which he affirmed before the investigating prosecutor, there was probable cause to hold the accused for trial. She denied the MR of the Antipordas in an order dated February 6, 2006.

Consequently, respondent Awingan filed a special civil action for certiorari and prohibition in the CA docketed as CA-G.R. SP No. 93610. The Antipordas separately filed another certiorari case docketed as CA-G.R. SP No. 94188. In a decision dated November 10, 2006 in CA-G.R. SP No. 93610, the CA ruled that the RTC judge gravely abused her discretion because she arbitrarily left out of her assessment and evaluation the substantial matters that the DOJ Secretary had fully taken into account in concluding that there was no probable cause against all the accused. It also held that Columnas extrajudicial confession was not admissible against the respondents because, aside from the recanted confession, there was no other piece of evidence presented to establish the existence of the conspiracy. Additionally, the confession was made only after Columna was arrested and not while the conspirators were engaged in carrying out the conspiracy. After this decision was promulgated, CA-G.R. SP No. 93610 was consolidated with CAG.R. SP No. 94188. The CA denied reconsideration in a resolution dated May 18, 2007. In a decision dated August 24, 2007, the CA likewise granted the petition for certiorari of respondents Antiporda.24 Petitioner filed this petition assailing the decision in CA-G.R. SP No. 93610. Later on, he filed an amended petition impleading respondents Antiporda and likewise assailing the CA decision in CA-G.R. SP No. 94188. The Court treated this as a supplemental petition. The main issue for our resolution is whether or not the CA erred in finding that Judge Daguna had committed grave abuse of discretion in denying the withdrawal of the Informations for murder against respondents. Petitioner argues that, based on the independent assessment of Judge Daguna, there was probable cause based on the earlier affidavit of Columna. She considered all the pieces of evidence but did not give credit to Columnas recantation. Respondents counter that Judge Daguna committed grave abuse of discretion by limiting her evaluation and assessment only to evidence that supported probable cause while completely disregarding contradicting evidence. They also contend that Columnas extrajudicial confession was inadmissible against respondents because of the rule on res inter alios acta. We find no merit in the petition. It is settled that, when confronted with a motion to withdraw an Information (on the ground of lack of probable cause to hold the accused for trial based on a resolution of the DOJ Secretary), the trial court has the duty to make an independent assessment of the merits of the motion.25 It may either agree or disagree with the recommendation of the Secretary. Reliance alone on the resolution of the Secretary would be an abdication of the trial courts duty and jurisdiction to determine a prima facie case.26 The court must itself be convinced that there is indeed no sufficient evidence against the accused.27 We agree with the CA that Judge Daguna limited herself only to the following: (1) Columnas affidavit dated March 8, 2004 wherein he implicated the respondents in the murders; (2) his affirmation of this affidavit during the April 19, 2004 clarificatory hearing; (3) his letter dated October 29, 2004 and (4) the May 30, 2005 DOJ resolution upholding the prosecutors recommendation to file the murder charges.28

She completely ignored other relevant pieces of evidence such as: (1) Columnas May 3, 2004 letter to respondent Lloyd Antiporda narrating the torture he suffered to force him to admit his participation in the crimes and to implicate the respondents; (2) his May 25, 2004 affidavit where he stated that neither he nor the respondents had any involvement in the murders and (3) his testimony during the October 22, 2004 clarificatory hearing wherein he categorically affirmed his May 3, 2004 letter and May 25, 2004 affidavit. We declared in Jimenez v. Jimenez29 that [although] there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear dictates of reason. The judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold.30 (Emphasis supplied) Had Judge Daguna reviewed the entire records of the investigation, she would have seen that, aside from the pieces of evidence she relied on, there were others which cast doubt on them. We quote with approval the reflections of the CA on this point: The selectivity of respondent RTC Judge for purposes of resolving the motion to withdraw the informationseffectively sidetracked the guidelines for an independent assessment and evaluation of the merits of the case. Respondent RTC Judge thus impaired the substantial rights of the accused. Instead, she should have made a circumspect evaluation by looking at everything made available to her at that point of the cases. No less than that was expected and required of her as a judicial officer. According to Santos v. Orda, Jr., the trial judge may make an independent assessment of the merits of the case based on the affidavits and counter-affidavits, documents, or evidence appended to the Information; the records of the public prosecutor which the court may order the latter to produce before the court; or any evidence already adduced before the court by the accused at the time the motion is filed by the public prosecutor.31 Moreover, Judge Daguna failed to consider that Columnas extrajudicial confession in his March 8, 2004 affidavit was not admissible as evidence against respondents in view of the rule on res inter alios acta. Res inter alios acta alteri nocere non debet. The rule on res inter alios acta provides that the rights of a party cannot be prejudiced by an act, declaration, or omission of another.32 Consequently, an extrajudicial confession is binding only on the confessant, is not admissible against his or her co-accused33 and is considered as hearsay against them.34 The reason for this rule is that: on a principle of good faith and mutual convenience, a mans own acts are binding upon himself, and are evidence against him. So are his conduct and declarations. Yet it would not only be rightly inconvenient, but also manifestly unjust, that a man should be bound by the acts of mere unauthorized strangers; and if a party ought not to be bound by the acts of strangers, neither ought their acts or conduct be used as evidence against him.35

An exception to the res inter alios acta rule is an admission made by a conspirator under Section 30, Rule 130 of the Rules of Court: Admission by conspirator. The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the coconspirator after the conspiracy is shown by evidence other than such act or declaration.1avvphi1 This rule prescribes that the act or declaration of the conspirator relating to the conspiracy and during its existence may be given in evidence against co-conspirators provided that the conspiracy is shown by independent evidence aside from the extrajudicial confession.36 Thus, in order that the admission of a conspirator may be received against his or her co-conspirators, it is necessary that (a) the conspiracy be first proved by evidence other than the admission itself (b) the admission relates to the common object and (c) it has been made while the declarant was engaged in carrying out the conspiracy.37 Otherwise, it cannot be used against the alleged coconspirators without violating their constitutional right to be confronted with the witnesses against them and to cross-examine them.38 Here, aside from the extrajudicial confession, which was later on recanted, no other piece of evidence was presented to prove the alleged conspiracy. There was no other prosecution evidence, direct or circumstantial, which the extrajudicial confession could corroborate. Therefore, the recanted confession of Columna, which was the sole evidence against respondents, had no probative value and was inadmissible as evidence against them. Considering the paucity and inadmissibility of the evidence presented against the respondents, it would be unfair to hold them for trial. Once it is ascertained that no probable cause exists to form a sufficient belief as to the guilt of the accused, they should be relieved from the pain of going through a full blown court case.39 When, at the outset, the evidence offered during the preliminary investigation is nothing more than an uncorroborated extrajudicial confession of an alleged conspirator, the criminal complaint should not prosper so that the system would be spared from the unnecessary expense of such useless and expensive litigation.40 The rule is all the more significant here since respondent Licerio Antiporda remains in detention for the murder charges pursuant to the warrant of arrest issued by Judge Daguna.41 Indeed, at that stage of the proceedings, the duty of Judge Daguna was only to satisfy herself whether there was probable cause or sufficient ground to hold respondents for trial as co-conspirators. Given that she had no sufficient basis for a finding of probable cause against respondents, her orders denying the withdrawal of the Informations for murder against them were issued with grave abuse of discretion. Hence, we hold that the CA committed no reversible error in granting the petitions for certiorari of respondents. WHEREFORE, the petition is hereby DENIED. No pronouncement as to costs. SO ORDERED. --THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. ZAIDA KAMAD y AMBING, Accused-Appellant. DECISION

BRION, J.: We review the decision1 of the Court of Appeals2 (CA) in CA-G.R. CR-H.C. No. 00505 which affirmed in toto the decision3 of the Regional Trial Court (RTC), Branch 259, Paraaque City4 in Criminal Case Nos. 02-1236-7 finding Zaida5 Kamad y Ambing (accused-appellant) guilty beyond reasonable doubt of illegal sale of shabu under Section 5, Article II of Republic Act No. 9165 (RA 9165) or the Comprehensive Dangerous Drugs Act of 2002. Along with her boyfriend Leo Ramirez y Acosta (Leo) who was charged for illegal possession of shabu, the accused-appellant was charged under an Information6 that reads: The above-named accused, not being lawfully authorized to possess or otherwise use any dangerous drug and without the corresponding license or prescription, did then and there willfully, unlawfully and feloniously give away, distribute and sell to a customer for P300.00 pesos one (1) small heat sealed transparent plastic sachet containing crystalline substance (shabu) weighing 0.20 gram, which when examined were found positive for Methamphetamine Hydrochloride (shabu), a dangerous drug, in violation of the above-cited law. CONTRARY TO LAW. The accused-appellant pleaded not guilty on arraignment. Trial on the merits thereafter ensued. The prosecutions version of events is summarized below. On October 16, 2002, the Philippine National Police (PNP) Drug Enforcement Unit of the Southern Police District, Fort Bonifacio, Taguig (Taguig police) received information from an asset that a certain "Zaida" was engaged in the illegal sale of shabu at Purok IV, Silverio Compound in Paraaque City. The Taguig police formed a buy-bust team composed of P/Insp. Antonio Parillas,7 PO3 Christopher Maulit8 (PO3 Maulit), PO1 Manfoste,9 SPO2 Arthur Velasco, and SPO2 Ernesto Sanchez10 (SPO2 Sanchez), as members. SPO2 Sanchez acted as poseur-buyer and received three (3) one hundred peso bills for use as marked money. After surveillance of the area, the buy-bust team and their asset proceeded at around 10:00 p.m. of October 16, 2002 to the target area where they immediately saw the accused-appellant and Leo. The asset and SPO2 Sanchez approached the two while the rest of the buy-bust team watched from a distance. The asset introduced SPO2 Sanchez as a buyer of shabu and the accused-appellant asked him how much he would buy. SPO2 Sanchez asked for P300.00 worth of shabu and gave the marked money; the accused-appellant thereafter handed him a plastic sachet containing a substance suspected to be shabu. SPO2 Sanchez lighted a cigarette to give the prearranged signal for the buy-bust team to approach. SPO2 Sanchez arrested the accused-appellant and recovered from her the P300.00 marked money. The buy-bust team arrested Leo who was found in possession of one (1) plastic sachet also suspected to contain shabu. The buy-bust team took the accused-appellant and Leo and the recovered plastic sachets to their office for investigation. The recovered plastic sachets, marked as "ES1-161009" and "ES-2-161002," were then brought to the PNP Crime Laboratory for qualitative examination; the tests yielded positive results for methamphetamine hydrochloride.11

The defense expectedly presented a different version of events. The accused-appellant12 denied the charge and claimed that she and Leo were framed-up. At around 2:30 p.m. of October 16, 2002, the accused-appellant and Leo went to Leos cousins house. Since Leos cousin was not yet at home, she and Leo waited. After waiting for an hour, four (4) men wearing civilian clothes and carrying firearms entered the house and introduced themselves as police officers. The accused-appellant and Leo were frisked, but nothing was found in their possession. The police officers asked the accused-appellant where she kept the shabu; she replied that she was not selling shabu. Afterwards, she and Leo were taken to the police headquarters where they were again frisked and asked the same question to which they gave the same response. The police detained Leo and the accusedappellant for about a day and later brought them to the Prosecutors Office for inquest without showing them any shabu. The RTC Ruling After consideration of the evidence, the RTC decreed: WHEREFORE, PREMISES CONSIDERED, finding both accused GUILTY beyond reasonable doubt, this Court hereby sentences Zaida Kamad to life imprisonment and to pay a fine of P500,000.00 for Violation of Section 5, Art. II, RA 9165 xxxx SO ORDERED.13 The accused-appellant appealed the RTC decision to the CA, attacking the RTCs reliance on the presumption of regularity that the RTC found to have attended the conduct of the buy-bust operation by the police. She argued that no presumption of regularity could arise considering that the police violated NAPOLCOM rules by using an asset; the rules prohibit the deputation of private persons as PNP civilian agents.14 The accused-appellant also pointed out the material inconsistencies in the testimony of the prosecution witnesses that cast doubt on their credibility, namely: (a) the uncertainty of SPO2 Sanchez regarding the time the buy-bust team was dispatched to the target area; (b) the confusion of PO3 Maulit on the identity of the team leader of the buy-bust team; (c) the admitted mistake of PO3 Maulit that only the recovered plastic sachet was marked "ES" (standing for the initials of SPO2 Sanchez), while the marked money was marked "MF" (standing for the initials of P/Insp. Mariano F. Fegarido as commanding officer); and (d) the contradictory statements of PO3 Maulit who testified that it was Leo who sold the shabu and that of SPO2 Sanchez who testified that it was the accused-appellant who sold him the shabu. The CA Ruling The CA rejected the defense arguments and affirmed in toto the RTC findings. The CA ruled that the prosecution satisfactorily established the accused-appellants guilt based on the positive testimony of SPO2 Sanchez on the conduct of the buy-bust operation; his testimony bore badges of truth. Accordingly, the CA found the accusedappellants uncorroborated denial undeserving of any weight. The CA brushed aside as a minor inconsistency the uncertainty in the testimony of SPO2 Sanchez on the time the buy-bust operation took place. The CA also brushed aside the violation of the NAPOLCOM rules on the ground that the accused-appellant was arrested in flagrante delicto for illegal sale of shabu committed in the presence of the prosecution

witnesses who were police officers. Moreover, the CA held that the use of assets to aid police officers in buy-bust operations has been judicially recognized. The CA found that while the asset brokered the shabu transaction, he had no role in the apprehension of the accused-appellant and in the search and seizure of the shabu from the accused-appellant. The Issue The only issue in this case is whether the accused-appellant is guilty beyond reasonable doubt of violation of Section 5, Article II of RA 9165 for the illegal sale of 0.20 gram of shabu. The Courts Ruling We draw attention at the outset to the unique nature of an appeal in a criminal case; the appeal throws the whole case open for review and it is the duty of the appellate court to correct, cite and appreciate errors in the appealed judgment whether they are assigned or unassigned.15 We find the present appeal meritorious on the basis of such review. As a general rule, the trial court's findings of fact, especially when affirmed by the CA, are entitled to great weight and will not be disturbed on appeal. This rule, however, admits of exceptions and does not apply where facts of weight and substance with direct and material bearing on the final outcome of the case have been overlooked, misapprehended or misapplied.16 After due consideration of the records of this case, the evidence adduced, and the applicable law and jurisprudence, we hold that a deviation from the general rule is warranted. In a prosecution for illegal sale of dangerous drugs, the following elements must be duly established: (1) proof that the transaction or sale took place; and (2) the presentation in court of the corpus delicti or the illicit drug as evidence.17 Proof of the corpus delicti in a buy-bust situation requires evidence, not only that the transacted drugs actually exist, but evidence as well that the drugs seized and examined are the same drugs presented in court. This is a condition sine qua non for conviction as the drugs are the main subject of the illegal sale constituting the crime and their existence and identification must be proven for the crime to exist. As we discuss below, the special characteristics of prohibited drugs necessitate their strict identification by the prosecution.18 Our examination of the records shows that while the prosecution established through the testimony of SPO2 Sanchez that the sale of the prohibited drug by the accusedappellant took place, we find that both the RTC and the CA failed to consider the following infirmities in the prosecutions case: (1) the serious lapses in the RA 9165 procedure committed by the buy-bust team in handling the seized shabu; and (2) the failure of the police to comply with the chain of custody rule in handling the seized shabu, resulting in the prosecutions failure to properly identify the shabu offered in court as the same shabu seized from the accused-appellant on October 16, 2002. Non-compliance with the prescribed procedure under Section 21, Article II of RA 9165 In People v. Garcia,19 we emphasized the prosecutions duty to adduce evidence proving compliance by the buy-bust team with the prescribed procedure laid down under paragraph 1, Section 21, Article II of RA 9165. This provision reads:

1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. [emphasis supplied] The Implementing Rules and Regulations of RA 9165 under its Section 21(a) provides further details on how RA 9165 is to be applied, and provides too for a saving mechanism in case no strict compliance with the requirements took place. Section 21(a) states: (a) The apprehending office/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, further that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items.[Emphasis supplied.] Strict compliance with the prescribed procedure is required because of the illegal drugs unique characteristic rendering it indistinct, not readily identifiable, and easily open to tampering, alteration or substitution either by accident or otherwise.20 Hence, the rules on the measures to be observed during and after the seizure, during the custody and transfer of the drugs for examination, and at all times up to their presentation in court. In this case, SPO2 Sanchez testified on the seizure and the handling of the seized shabu. The records show that his testimony and the identification he made in court constitute the totality of the prosecutions evidence on how the police handled and preserved the integrity of the seized shabu. Significantly, SPO2 Sanchez merely stated in his testimony that: Q: What else transpired when Zaida gave something to you and you, being the poseur buyer, gave the money to Zaida? A: We brought them to our office. xxxx Q: What did you do with those plastic sachets containing white crystalline substance? A: We brought them to the SPD Crime Lab for examination.21 Thus, he failed to provide specific details on how the seized shabu was marked although the evidence shows that the shabu was marked as "ES-1-161009" before it was sent to a forensic laboratory. His testimony also failed to state whether the marking of the shabu was done immediately after its seizure (as Section 21 of RA

9165 requires) or during the investigation. His testimony likewise failed to disclose if a physical inventory and photography of the seized items had taken place, or if they had, whether these were undertaken in the presence of the accused or his counsel, or a representative from the media and the Department of Justice, and of an elective official. In sum, his testimony failed to show how the integrity and evidentiary value of the item seized had been preserved; no explanation was ever given by SPO2 Sanchez to justify the non-compliance by the buy-bust team with the prescribed procedures. In fact, the records clearly reveal that the prosecution did not even acknowledge the procedural lapses committed by the buy-bust team in the handling of the seized shabu. The consequences of the above omissions must necessarily be grave for the prosecution under the rule that penal laws, such as RA 9165, are strictly construed against the government and liberally in favor of the accused.22 One consequence is to produce doubts on the origins of the illegal drug presented in court,23 thus leading to the prosecutions failure to establish the corpus delicti.24 Unless excused by the saving mechanism, the acquittal of the accused must follow. The non-compliance with the chain of custody rule Separately from Section 21 violations, we also find the prosecution fatally remiss in establishing an unbroken link in the chain of custody of the seized shabu; its evidence is simply incomplete in establishing the necessary links in the handling of the seized prohibited drug from the time of its seizure until its presentation in court. In Mallillin v. People,25 we explained the chain of custody rule and what constitutes sufficient compliance with this rule: As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witnesses' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same. [emphasis supplied]26 We applied this ruling in People v. Garcia,27 People v. Gum-Oyen,28 People v. Denoman29 and People v. Coreche30 where we recognized the following links that must be established in the chain of custody in a buy-bust situation: first, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; second, the turnover of the illegal drug seized by the apprehending officer to the investigating officer; third, the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and fourth, the turnover and submission of the marked illegal drug seized from the forensic chemist to the court. (a) The first link in the chain of custody

10

We observe that SPO2 Sanchez testimony lacks specifics on how the seized shabu was handled immediately after the accused-appellants arrest. Although the records show that SPO2 Sanchez testified that he actually seized the shabu when he arrested the accused-appellant, he never disclosed the identity of the person/s who had custody and possession of the shabu after its seizure, nor that he retained possession of the shabu from the place of the arrest until they reached the police station. SPO2 Sanchez also failed to state the time and place as well as the identity of the person/s who made the markings on the two (2) plastic sachets containing the recovered shabu seized from the accused-appellant and Leo on October 16, 2002. (b) The second link in the chain of custody We also observe that SPO2 Sanchez testimony regarding the post-arrest police investigation failed to provide particulars on whether the shabu was turned over to the investigator. The records only identify the name of the investigator as one SPO1 Nuestro before whom SPO2 Sanchez and PO3 Maulit executed a Joint Affidavit of Arrest dated October 17, 2002.31 Thus, a big gap exists on who had custody and possession of the shabu prior to, during and immediately after the police investigation, and how the shabu was stored, preserved, labeled and recorded from the time of its seizure up to its receipt by the forensic laboratory. (c) The third link in the chain of custody The third link in the chain is represented by two (2) pieces of documentary evidence adduced by the prosecution consisting of the letter-request dated October 17, 200232 of Police Superintendent Mariano F. Fegarido as Chief of the Southern Police District Drug Enforcement Group and the Physical Science Report No. D-1502-02 prepared by Engr. Richard Allan B. Mangalip as the forensic chemist.33 These documents reveal that the recovered plastic sachets of shabu bearing the markings "ES-1-161002" and "ES-2-161002" were sent to the forensic laboratory sealed in one (1) small brown envelope bearing unidentified signatures. On the same day, the PNP Crime Laboratory received this letter-request along with the submitted specimens. The specimens were then subjected to qualitative examination which yielded positive for methylamphetamine hydrochloride. These pieces of evidence notably fail to identify the person who personally brought the seized shabu to the PNP Crime Laboratory. They also fail to clearly identify the person who received the shabu at the forensic laboratory pursuant to the letterrequest dated October 17, 2002, and who exercised custody and possession of the shabu after it was examined and before it was presented in court. Neither was there any evidence adduced showing how the seized shabu was handled, stored and safeguarded pending its presentation in court. (d) The fourth link in the chain of custody The fourth link presents a very strange and unusual twist in the prosecutions evidence in this case. Although the forensic chemist was presented in court, we find that his offered testimony related to a shabu specimen other than that seized in the buy-bust operation of October 16, 2002. Specifically, his testimony pertained to shabu seized by the police on October 12, 2002. This is borne by the following exchanges:

11

FISCAL UY: The testimony of the witness is being offered to prove . . . that he is the one who cause [sic] the examination of the physical evidence subject of this case containing with white crystalline substance placed inside the plastic sachet weighing 0.20 grams and 0.30 grams with markings of EBC and EBC-1 that I reduced findings after the examination conducted. xxxx Q And with the cause of the performance of your duties, were you able to receive a letter request relevant to this case specifically a drug test request, dated October 12, 2002 from PS/Insp. Wilfredo Calderon. Do you have the letter request with you? A Yes, sir. Q The witness presented to this representation the letter request dated October 12, 2002 for purposes of identification, respectfully request that it be marked in evidence as Exhibit A. In this Exhibit A Mr. Officer, were you able to receive the evidence submitted specifically a small brown stapled wire envelope with signature containing with white crystalline substance inside and with markings EBC- 12/10/02 and EBC-1 12/10/02. After you received this specimen what action did you take or do? A Upon receiving, I read and understand the content of the letter request after which, I stamped and marked the letter request and then record it on the logbook and after recording it on the logbook, I performed the test for determination of the presence of dangerous drug on the specimen. xxxx Q Now, after those tests conducted what was the result of the examination? A It gives positive result for Methamphetamine Hydrochloride or otherwise known as shabu, a dangerous drug. xxxx Q At this juncture your Honor, the witness handed with this representation a brown envelope with markings D-1487-02, and the signature and the date 12 October 02, now Mr. Witness tell us who placed these markings on this brown envelope? A I am the one who personally made the markings, sir. Q And in the face of this brown envelope there is a printed name PO1 Edwin Plopinio and the signature and the date 12 October 2002. Do you know who placed who placed those markings? A I have no idea. Q At this juncture your Honor, this representation proceeded to open the brown envelope. May I respectfully request that this brown envelope be marked in evidence as Exhibit B. And inside this brown envelope are three pieces of plastic sachets inside which are white crystalline substance with markings EPC

12

12 October 02 and EPC-1 12 October 02. May I respectfully request that these plastic sachets with white substance inside be marked in evidence as Exhibit B1 and B-2. And in these plastic sachets with white crystalline inside is a masking tape with the signature and letters are RAM, do you know who placed those letters? A I am the one who placed that markings sir. Q And what RAM stands for? A That stands for my name Richard Allan Mangalip sir. Q You mentioned that you reduced your findings in writing, do you have the official finding with you? A Yes, sir. Q At this juncture the witness handed to this representation the physical science report no. D-1487-2 for purposes of identification respectfully request that this specimen be marked in evidence as Exhibit C. And in this Exhibit C, there is a signature above the typewritten name Engineer Richard Allan B. Mangalip, do you whose signature is this Mr. Witness? 34 [Emphasis supplied] A That is my signature sir. Q Respectfully request that the signature appearing in Exhibit C be marked in evidence as Exhibit C-1. You stated earlier that you cause the weight of the white crystalline substance in this plastic sachet, what the weights of this white crystalline substance? A For the specimen A, it is .20 grams and the specimen B, it is .30 gram. Q May I respectfully request that this weight indicated in this physical science report now mark in evidence as Exhibit C-2. I have no further questions to the witness your Honor. xxxx Aside from the different dates of seizure, we note that the shabu identified and presented in court as evidence through the testimony of the forensic chemist, showed characteristics distinct from the shabu from the buy-bust sale of October 16, 2002: First, there were different markings made on the plastic sachets of the shabu recovered on October 12, 2002. As testified to, one plastic sachet of shabu was marked, "EBC 12 October 02," while the other plastic sachet of shabu was marked, "EBC-1 12 October 02";35 Second, there was a different sealed brown envelope used where a printed name and signature of one "PO1 Edwin Plopino" and the date "12 October 2002" were written; 36

13

Third, the examination of the shabu by the PNP Crime Laboratory was made pursuant to a different letter-request for examination dated October 12, 2002 written by one P/Insp. Wilfredo Calderon;37 and Fourth, the results of the shabu testified to by the forensic chemist in court was contained in a different forensic laboratory report known as Physical Science Report No. D-1487-2.38 We highlight these characteristics because they are different from the documentary evidence the prosecution formally offered39 consisting of the letter-request dated October 17, 200240 and the Physical Science Report No. D-1502-02.41 The testimonies of SPO2 Sanchez and PO3 Maulit as well as the submitted documentary evidence referred to the plastic sachets of shabu through their markings of "ES-1-161002" and "ES-2-161002."42 From all these, we find it obvious that some mistake must have been made in the presentation of the prosecutions evidence. The prosecution, however, left the discrepancies fully unexplained. To reiterate, the forensic chemist testified to a specimen dated October 12, 2002, or one secured way before the buy-bust of October 16, 2002, but marked as evidence documents relating to the specimen of October 16, 2002. Strangely, even the defense disregarded the discrepancies. In his comment on the offer of evidence, the defense simply stated, among others, by way of stipulation, that "the forensic chemical officer only conducted a qualitative examination of the specimen he examined and not the quantitative examination."43 Coming immediately after the offer of evidence that mentioned the plastic sachets containing white crystalline substances with markings "ES-1 16/10/02" and "ES-2 16/10/02," and the Physical Science Report No. D-1502-02,44 the defense was clearly sleeping on its feet when it reacted to the prosecutions offer of evidence. But the defense was not alone in glossing over the discrepancies between the testimony for the prosecution and the offered evidence, as both the RTC and CA also failed to notice the glaring flaws in the prosecutions evidence. Apparently, because the parties did not point out these discrepancies while the appellate court did not closely review the records of the proceedings, the discrepancies were not taken into account in the decision now under review. These observations bring us full circle to our opening statement under the Courts ruling on the kind and extent of review that an appellate court undertakes in a criminal case; the appeal opens the whole case for review, with the appellate court charged with the duty to cite and appreciate the errors it may find in the appealed judgment, whether these errors are assigned or unassigned. This is one such instance where we are duty bound to rectify errors that, although unnoticed below and unassigned by the parties, are clearly reflected in the records of the case. The Conclusion Given the flagrant procedural lapses the police committed in handling the seized shabu and the obvious evidentiary gaps in the chain of its custody, a presumption of regularity in the performance of duties cannot be made in this case. A presumption of regularity in the performance of official duty is made in the context of an existing rule of law or statute authorizing the performance of an act or duty or prescribing a procedure in the performance thereof. The presumption applies when nothing in the record suggests that the law enforcers deviated from the standard conduct of official duty required by law; where the official act is irregular on its face, the presumption cannot arise.45 In light of the flagrant lapses we noted, the lower courts were

14

obviously wrong when they relied on the presumption of regularity in the performance of official duty. We rule, too, that the discrepancy in the prosecution evidence on the identity of the seized and examined shabu and that formally offered in court cannot but lead to serious doubts regarding the origins of the shabu presented in court. This discrepancy and the gap in the chain of custody immediately affect proof of the corpus delicti without which the accused must be acquitted.1avvphi1 From the constitutional law point of view, the prosecutions failure to establish with moral certainty all the elements of the crime and to identify the accused as the perpetrator signify that it failed to overturn the constitutional presumption of innocence that every accused enjoys in a criminal prosecution. When this happens, as in this case, the courts need not even consider the case for the defense in deciding the case; a ruling for acquittal must forthwith issue. WHEREFORE, premises considered, we hereby REVERSE and SET ASIDE the March 28, 2006 decision of the Court of Appeals in CA-G.R. CR-H.C. No. 00505 affirming the decision of conviction dated October 27, 2004 of the Regional Trial Court, Branch 259, Paraaque City in Criminal Case Nos. 02-1236-7 for illegal sale of shabu under Section 5, Article II of Republic Act No. 9165. Accused-appellant ZAIDA KAMAD y AMBING is hereby declaredACQUITTED and ordered immediately RELEASED from detention, unless she is confined for any other lawful cause. The Director of the Bureau of Corrections is DIRECTED to IMPLEMENT this Decision and to report to this Court the action taken hereon within five (5) days from receipt. SO ORDERED. --PEOPLE OF THE PHILIPPINES, Appellee, vs. MICHAEL A. HIPONA, Appellant. DECISION CARPIO MORALES, J.: Michael A. Hipona (appellant) was convicted by Decision of September 10, 20021 of the Regional Trial Court of Cagayan de Oro City, Branch 18 with "Rape with Homicide (and Robbery)" [sic]. His conviction was affirmed by the Court of Appeals by Decision of January 28, 2008.2 The Second Amended Information charged appellant together with Romulo Seva, Jr. and one John Doe withRobbery with Rape and Homicide as follows: That on or about June 12, 2000 at 1:00 oclock dawn at District 3, Isla Copa, Consolation, Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together, and mutually helping one another, by means of force and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge with the offended party (AAA) who is the Aunt of accused Michael A. Hipona, she being the younger sister of the accuseds mother and against her will, that on occasion of the said rape, accused,

15

with evident premeditation, treachery and abuse of superior strength, and dwelling, with intent to kill and pursuant to their conspiracy, choked and strangulated said AAA which strangulation resulted to the victims untimely death. That on the said occasion the victims brown bag worth P3,800.00; cash money in the amount of no less than P5,000.00; and gold necklace were stolen by all accused but the gold necklace was later on recovered and confiscated in the person of accused Michael A. Hipona.3 (emphasis and underscoring in the original) The following facts are not disputed. AAA4 was found dead on the morning of June 12, 2000 in her house in Isla Copa, Consolation, Cagayan de Oro City. She was raped, physically manhandled and strangled, which eventually led to her death. Her furniture and belongings were found strewn on the floor. AAAs necklace with two heart-shaped pendants bearing her initials and handbag were likewise missing. Upon investigation, the local police discovered a hole bored into the lawanit wall of the comfort room inside AAAs house, big enough for a person of medium build to enter. The main electrical switch behind a "shower curtain" located at the "back room" was turned off, drawing the police to infer that the perpetrator is familiar with the layout of AAAs house. SPO1 Bladimir Agbalog of the local police thus called for a meeting of AAAs relatives during which AAAs sister BBB, who is appellants mother, declared that her sonappellant had told her that "Mama, Im sorry, I did it because I did not have the money," and he was thus apologizing for AAAs death. BBB executed an affidavit affirming appellants confession.5 On the basis of BBBs information, the police arrested appellant on June 13, 2000 or the day after the commission of the crime. He was at the time wearing AAAs missing necklace. When on even date he was presented to the media and his relatives, appellant apologized but qualified his participation in the crime, claiming that he only acted as a look-out, and attributed the crime to his co-accused Romulo B. Seva, Jr. (Seva) alias "Gerpacs" and a certain "Reypacs." A day after his arrest or on June 14, 2000, appellant in an interview which was broadcasted, when asked by a radio reporter "Why did you do it to your aunt?," answered "Because of my friends and peers." When pressed if he was intoxicated or was on drugs when he "did it," appellant answered that he did it because of his friends and of poverty. Appellants co-accused Seva was later arrested on July 9, 2000, while "Reypacs" remained at large. Appellant entered a plea of not guilty while Seva refused to enter a plea, hence, the trial court entered a "not guilty" plea on his behalf. Post mortem examination of AAA revealed the following findings: Rigor mortis, generalized, Livor mortis, back, buttocks, flanks, posterior aspect of neck and extremities (violaceous).

16

Face, markedly livid. Nailbeds, cyanotic. With extensive bilateral subconjunctival hemorrhages and injections. Petecchial hemorrhages are likewise, noted on the face and upper parts of neck. ABRASIONS, with fibrin: curvilinear; three (3) in number; measuring 1.1x0.4 cms., 0.8x0.3 cms., and 0.6x0.1 cm.; within an area of 2.8x1.1 cms. at the left side of the neck, antero-lateral aspect. HEMATOMAS, violaceous; hemispherical in shapes, highly characteristic of bite marks: 3.5 x 0.4 cms. and 4.1x1.4 cms.; located at the right lower buccal region, lateral and medial aspects, respectively. SOFT TISSUE DEFECT, with irregular edges; 2.5 x 2.7 cms.; left thigh, distal 3rd, medial aspect; involving only the skin and underlying adipose tissues; with an approximate depth of 1.6 cms. ABRASIONS, with fibrin, curvilinear in shapes; 0.6x0.3 cm. and 0.5x0.3cm., right upper eyelid; 0.4x0.2 cms. and 0.3x 0.2 cms, right upper arm, distal 3rd, medial aspect; 0.5x0.3 cm., right forearm, proximal 3rd, medial aspect; 0.7x0.3 cm., left elbow; 0.5x0.2 cm., left forearm, middle 3rd, posterior aspect. HEMATOMA, violaceous: 2.2x2.5 cms., right upper arm, middle 3rd, medial aspect DEPRESSED FRACTURE, body of thyroid cartilage, lateral aspects, bilateral. PETECCHIAL HEMORRHAGES, subpleural, bilateral, and sub-epicardial. xxxx GENITAL FINDINGS: Subject is menstruating. Pubic hairs, fully grown, abundant. Labiae majora and minora, both coaptated. Vestibular mucosa, pinkish, smooth. Hymen, short, thin with COMPLETE, FRESH HYMENAL LACERATION (with fibrin and fresh reddish soft blood clot) at 6:00 oclock position, and extending to the posterior aspect of vestibular mucosa up to the area of fourchette. Hymenal orifice originally annular, admits a glass tube of 2.5 cms. diameter with moderate resistance. Vaginal rugosities, prominent. Cervix, firm. Uterus, small. VVVVVVVVVVV CAUSE OF DEATH: Asphyxia by strangulation (manual). REMARKS: Genital injury noted, age of which is compatible with sexual intercourse(s) with man/menon or about June 11-12 2000.6 (underscoring supplied) Albeit appellants mother BBB refused to take the witness stand, SPO1 Agbalog and Consuelo Maravilla, another relative of appellant, testified on BBBs declaration given during the meeting of relatives.

17

Appellant refused to present evidence on his behalf while Seva presented evidence to controvert the evidence on his alleged participation in the crime. By Decision of September 10, 2002, the trial court, after considering circumstantial evidence, viz: Based on the foregoing circumstances, specially of his failure to explain why he was in possession of victims stolen necklace with pendants, plus his confession to the media in the presence of his relatives, and to another radio reporter "live-on-the-air" about a day after his arrest, sealed his destiny to perdition and points to a conclusion beyond moral certainty that his hands were soiled and sullied by blood of his own Aunt.7 (underscoring supplied), found appellant guilty beyond reasonable doubt of "Rape with Homicide (and Robbery)." [sic]. It acquitted Seva. Thus the trial court disposed: WHEREFORE, in view of all the foregoing, the Court finds accused MICHAEL HIPONA GUILTY beyond reasonable doubt of a special complex crime of Rape with Homicide (and Robbery) punishable under Articles 266-A and 266-B, of the Revised Penal Code, as amended by R.A. 8353, and after taking into account the generic aggravating circumstance of dwelling, without a mitigating circumstance, accused MICHAEL HIPONA is hereby sentenced and SO ORDERED to suffer the supreme penalty of DEATH by lethal injection, plus the accessory penalties. He is hereby SO ORDERED to pay the heirs the sum of One Hundred Thousand (P100,000.00) Pesos, as indemnity. Another One Hundred Thousand (P100,000.00) Pesos, as moral damages. In order to further give accused Michael Hipona a lesson that would serve as a warning to others, he is also directed and SO ORDERED to pay another Fifty Thousand (P50,000.00) Pesos, as exemplary damages. For failure on the part of the prosecution to prove the guilt of the accused Romulo Seva, Jr., beyond reasonable doubt, it is SO ORDERED that he should be acquitted and it is hereby ACQUITTED of the crime charged, and is hereby released from custody unless detained for other legal ground. Pursuant to Section 22 of R.A. 7659, and Section 10 of Rule 122 of the Rules of Court, let the entire record be forwarded to the Supreme Court for automatic review."8 (emphasis in the original; underscoring supplied) On elevation of the records of the case, the Court, following People v. Mateo,9 referred the same to the Court of Appeals. Appellant maintains that his guilt was not proven beyond reasonable doubt.10 As stated early on, the Court of Appeals sustained appellants conviction. It, however, modified the penalty11imposed, and the amount of damages awarded by the trial court. Thus the appellate court, by the challenged Decision of January 28, 2008, disposed: WHEREFORE, the Decision of the lower court is hereby AFFIRMED with the following MODIFICATIONS: 1. That the penalty imposed is reclusion perpetua; 2. That appellant is hereby ordered to pay the heirs of AAA the following: the sum of P100,000.00 as civil indemnity; P75,000.00 as moral damages; and P100,000.00 as exemplary damages. SO ORDERED.12 (underscoring supplied)

18

The records of the case were elevated to this Court in view of the Notice of Appeal filed by appellant. Both the People and appellant manifested that they were no longer filing any supplemental briefs. The appeal is bereft of merit. For circumstantial evidence to suffice to convict an accused, the following requisites must concur: (1) there is more than one circumstance; (2) the facts from which the inferences are derived are proven; and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.13 The confluence of the following established facts and circumstances sustains the appellate courts affirmance of appellants conviction: First, appellant was frequently visiting AAA prior to her death, hence, his familiarity with the layout of the house; second, appellant admitted to his relatives and the media that he was present during commission of the crime, albeit only as a look-out; third, appellant was in possession of AAAs necklace at the time he was arrested; and fourth, appellant extrajudicially confessed to the radio reporter that he committed the crime due to his peers and because of poverty. Appellant argues that he should only be held liable for robbery and not for the complex crime of "Rape with Homicide (and Robbery)" [sic]. He cites the testimony of prosecution witness Aida Viloria-Magsipoc, DNA expert of the National Bureau of Investigation, that she found the vaginal smears taken from AAA to be negative of appellants DNA. Appellants argument fails. Presence of spermatozoa is not essential in finding that rape was committed, the important consideration being not the emission of semen but the penetration of the female genitalia by the male organ.14 As underlined above, the post-mortem examination of AAAs body revealed fresh hymenal lacerations which are consistent with findings of rape. Not only does appellants conviction rest on an unbroken chain of circumstantial evidence. It rests also on his unbridled admission to the media. People v. Andan instructs: Appellants confessions to the media were likewise properly admitted. The confessions were made in response to questions by news reporters, not by the police or any other investigating officer. We have held that statements spontaneously made by a suspect to news reporters on a televised interview are deemed voluntary and are admissible in evidence.15 (underscoring supplied) Appellant argues, however, that the questions posed to him by the radio broadcaster were vague for the latter did not specify what crime was being referred to when he questioned appellant. But, as the appellate court posited, appellant should have qualified his answer during the interview if indeed there was a need. Besides, he had the opportunity to clarify his answer to the interview during the trial. But, as stated earlier, he opted not to take the witness stand.1avvphi1 The Court gathers, however, that from the evidence for the prosecution, robbery was the main intent of appellant, and AAAs death resulted by reason of or on the occasion thereof. Following Article 294(1)16 and Article 62(1)117of the Revised Penal Code, rape should have been appreciated as an aggravating circumstance instead.18 A word on the amount of exemplary damages awarded. As the Court finds the award of P100,000 exemplary damages excessive, it reduces it to P25,000, in consonance with prevailing jurisprudence.19

19

WHEREFORE, the Decision of January 28, 2008 of the Court of Appeals is hereby AFFIRMED withMODIFICATION. Appellant, Michael A. Hipona is found guilty beyond reasonable doubt of Robbery with Homicide under Article 294(1) of the Revised Penal Code. He is accordingly sentenced to reclusion perpetua. And the award of exemplary damages is reduced to P25,000. In all other respects, the Decision is affirmed. SO ORDERED. --IN RE: PETITION FOR CANCELLATION AND CORRECTION OF ENTRIES IN THE RECORD OF BIRTH, EMMA K. LEE, Petitioner, vs. COURT OF APPEALS, RITA K. LEE, LEONCIO K. LEE, LUCIA K. LEE-ONG, JULIAN K. LEE, MARTIN K. LEE, ROSA LEE-VANDERLEK, MELODY LEE-CHIN, HENRY K. LEE, NATIVIDAD LEE-MIGUEL, VICTORIANO K. LEE, and THOMAS K. LEE, represented by RITA K. LEE, as Attorney-in-Fact, Respondents. DECISION ABAD, J.: This case is about the grounds for quashing a subpoena ad testificandum and a parents right not to testify in a case against his children. The Facts and the Case Spouses Lee Tek Sheng (Lee) and Keh Shiok Cheng (Keh) entered the Philippines in the 1930s as immigrants from China. They had 11 children, namely, Rita K. Lee, Leoncio K. Lee, Lucia K. Lee-Ong, Julian K. Lee, Martin K. Lee, Rosa Lee-Vanderlek, Melody Lee-Chin, Henry K. Lee, Natividad Lee-Miguel, Victoriano K. Lee, and Thomas K. Lee (collectively, the Lee-Keh children). In 1948, Lee brought from China a young woman named Tiu Chuan (Tiu), supposedly to serve as housemaid. The respondent Lee-Keh children believe that Tiu left the LeeKeh household, moved into another property of Lee nearby, and had a relation with him. Shortly after Keh died in 1989, the Lee-Keh children learned that Tius children with Lee (collectively, the Lees other children) claimed that they, too, were children of Lee and Keh. This prompted the Lee-Keh children to request the National Bureau of Investigation (NBI) to investigate the matter. After conducting such an investigation, the NBI concluded in its report: [I]t is very obvious that the mother of these 8 children is certainly not KEH SHIOK CHENG, but a much younger woman, most probably TIU CHUAN. Upon further evaluation and analysis by these Agents, LEE TEK SHENG is in a quandary in fixing the age of KEH SHIOK CHENG possibly to conform with his grand design of making his 8 children as their own legitimate children, consequently elevating the status of his second family and secure their future. The doctor lamented that this complaint would

20

not have been necessary had not the father and his second family kept on insisting that the 8 children are the legitimate children of KEH SHIOK CHENG.1 The NBI found, for example, that in the hospital records, the eldest of the Lees other children, Marcelo Lee (who was recorded as the 12th child of Lee and Keh), was born of a 17-year-old mother, when Keh was already 38 years old at the time. Another of the Lees other children, Mariano Lee, was born of a 23-year-old mother, when Keh was then already 40 years old, and so forth. In other words, by the hospital records of the Lees other children, Kehs declared age did not coincide with her actual age when she supposedly gave birth to such other children, numbering eight. On the basis of this report, the respondent Lee-Keh children filed two separate petitions, one of them before the Regional Trial Court (RTC) of Caloocan City2 in Special Proceeding C-1674 for the deletion from the certificate of live birth of the petitioner Emma Lee, one of Lees other children, the name Keh and replace the same with the name Tiu to indicate her true mothers name. In April 2005 the Lee-Keh children filed with the RTC an ex parte request for the issuance of a subpoena ad testificandum to compel Tiu, Emma Lees presumed mother, to testify in the case. The RTC granted the motion but Tiu moved to quash the subpoena, claiming that it was oppressive and violated Section 25, Rule 130 of the Rules of Court, the rule on parental privilege, she being Emma Lees stepmother.3 On August 5, 2005 the RTC quashed the subpoena it issued for being unreasonable and oppressive considering that Tiu was already very old and that the obvious object of the subpoena was to badger her into admitting that she was Emma Lees mother. Because the RTC denied the Lee-Keh childrens motion for reconsideration, they filed a special civil action of certiorari before the Court of Appeals (CA) in CA-G.R. SP 92555. On December 29, 2006 the CA rendered a decision,4 setting aside the RTCs August 5, 2005 Order. The CA ruled that only a subpoena duces tecum, not a subpoena ad testificandum, may be quashed for being oppressive or unreasonable under Section 4, Rule 21 of the Rules of Civil Procedure. The CA also held that Tius advanced age alone does not render her incapable of testifying. The party seeking to quash the subpoena for that reason must prove that she would be unable to withstand the rigors of trial, something that petitioner Emma Lee failed to do. Since the CA denied Emma Lees motion for reconsideration by resolution of May 8, 2007,5 she filed the present petition with this Court. The Question Presented The only question presented in this case is whether or not the CA erred in ruling that the trial court may compel Tiu to testify in the correction of entry case that respondent Lee-Keh children filed for the correction of the certificate of birth of petitioner Emma Lee to show that she is not Kehs daughter. The Ruling of the Court Petitioner Emma Lee claims that the RTC correctly quashed the subpoena ad testificandum it issued against Tiu on the ground that it was unreasonable and oppressive, given the likelihood that the latter would be badgered on oral examination concerning the Lee-Keh childrens theory that she had illicit relation with Lee and gave birth to the other Lee children.

21

But, as the CA correctly ruled, the grounds citedunreasonable and oppressiveare proper for subpoena ad duces tecum or for the production of documents and things in the possession of the witness, a command that has a tendency to infringe on the right against invasion of privacy. Section 4, Rule 21 of the Rules of Civil Procedure, thus provides: SECTION 4. Quashing a subpoena. The court may quash a subpoena duces tecum upon motion promptly made and, in any event, at or before the time specified therein if it is unreasonable and oppressive, or the relevancy of the books, documents or things does not appear, or if the person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof. Notably, the Court previously decided in the related case of Lee v. Court of Appeals6 that the Lee-Keh children have the right to file the action for correction of entries in the certificates of birth of Lees other children, Emma Lee included. The Court recognized that the ultimate object of the suit was to establish the fact that Lees other children were not children of Keh. Thus: It is precisely the province of a special proceeding such as the one outlined under Rule 108 of the Revised Rules of Court to establish the status or right of a party, or a particular fact. The petitions filed by private respondents for the correction of entries in the petitioners' records of birth were intended to establish that for physical and/or biological reasons it was impossible for Keh Shiok Cheng to have conceived and given birth to the petitioners as shown in their birth records. Contrary to petitioners' contention that the petitions before the lower courts were actually actions to impugn legitimacy, the prayer therein is not to declare that petitioners are illegitimate children of Keh Shiok Cheng, but to establish that the former are not the latter's children. There is nothing to impugn as there is no blood relation at all between Keh Shiok Cheng and petitioners.7 (Underscoring supplied) Taking in mind the ultimate purpose of the Lee-Keh childrens action, obviously, they would want Tiu to testify or admit that she is the mother of Lees other children, including petitioner Emma Lee. Keh had died and so could not give testimony that Lees other children were not hers. The Lee-Keh children have, therefore, a legitimate reason for seeking Tius testimony and, normally, the RTC cannot deprive them of their right to compel the attendance of such a material witness. But petitioner Emma Lee raises two other objections to requiring Tiu to come to court and testify: a) considering her advance age, testifying in court would subject her to harsh physical and emotional stresses; and b) it would violate her parental right not to be compelled to testify against her stepdaughter. 1. Regarding the physical and emotional punishment that would be inflicted on Tiu if she were compelled at her age and condition to come to court to testify, petitioner Emma Lee must establish this claim to the satisfaction of the trial court. About five years have passed from the time the Lee-Keh children sought the issuance of a subpoena for Tiu to appear before the trial court. The RTC would have to update itself and determine if Tius current physical condition makes her fit to undergo the ordeal of coming to court and being questioned. If she is fit, she must obey the subpoena issued to her. Tiu has no need to worry that the oral examination might subject her to badgering by adverse counsel. The trial courts duty is to protect every witness

22

against oppressive behavior of an examiner and this is especially true where the witness is of advanced age.8 2. Tiu claimed before the trial court the right not to testify against her stepdaughter, petitioner Emma Lee, invoking Section 25, Rule 130 of the Rules of Evidence, which reads: SECTION 25. Parental and filial privilege.- No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants. The above is an adaptation from a similar provision in Article 315 of the Civil Code that applies only in criminal cases. But those who revised the Rules of Civil Procedure chose to extend the prohibition to all kinds of actions, whether civil, criminal, or administrative, filed against parents and other direct ascendants or descendants. But here Tiu, who invokes the filial privilege, claims that she is the stepmother of petitioner Emma Lee. The privilege cannot apply to them because the rule applies only to "direct" ascendants and descendants, a family tie connected by a common ancestry.1avvphi1 A stepdaughter has no common ancestry by her stepmother. Article 965 thus provides: Art. 965. The direct line is either descending or ascending. The former unites the head of the family with those who descend from him. The latter binds a person with those from whom he descends. Consequently, Tiu can be compelled to testify against petitioner Emma Lee. WHEREFORE, the Court DENIES the petition and AFFIRMS the decision and resolution of the Court of Appeals in CA-G.R. SP 92555. SO ORDERED. --Spouses MANUEL and FLORENTINA DEL ROSARIO, Petitioners, vs. GERRY ROXAS FOUNDATION, Inc., Respondent. DECISION DEL CASTILLO, J.: The allegations in the complaint and the reliefs prayed for are the determinants of the nature of the action1 and of which court has jurisdiction over the action.2 This Petition for Review on Certiorari assails the April 26, 2005 Decision3 of the Court of Appeals (CA) in CA-G.R. SP No. 87784 which dismissed the Petition for Review before it. Also assailed is the CA Resolution4 dated November 15, 2005 denying the Motion for Reconsideration thereto. Factual Antecedents The controversy between petitioners Manuel and Florentina Del Rosario

23

and respondent Gerry Roxas Foundation Inc. emanated from a Complaint for Unlawful Detainer filed by the former against the latter, the surrounding circumstances relative thereto as summarized by the CA in its assailed Decision are as follows: The petitioner Manuel del Rosario appears to be the registered owner of Lot 3-A of Psd-301974 located in Roxas City which is described in and covered by Transfer Certificate of Title No. T-18397 of the Registry of Deeds for the City of Roxas. Sometime in 1991, the respondent, as a legitimate foundation, took possession and occupancy of said land by virtue of a memorandum of agreement entered into by and between it and the City of Roxas. Its possession and occupancy of said land is in the character of being lessee thereof. In February and March 2003, the petitioners served notices upon the respondent to vacate the premises of said land. The respondent did not heed such notices because it still has the legal right to continue its possession and occupancy of said land.5 On July 7, 2003, petitioners filed a Complaint6 for Unlawful Detainer against the respondent before the Municipal Trial Court in Cities (MTCC) of Roxas City, docketed as Civil Case No. V-2391. Said complaint contains, among others, the following significant allegations: 3. Plaintiffs are the true, absolute and registered owner[s] of a parcel of land, situated at Dayao, Roxas City and covered by and described in Transfer Certificate of Title No. 18397 issued to the plaintiffs by the Register of Deeds for Roxas City as evidenced by a xerox copy thereof which is hereto attached as Annex "A". 4. Sometime in 1991, without the consent and authority of the plaintiffs, defendant took full control and possession of the subject property, developed the same and use[d] it for commercial purposes. xxxx 7. Plaintiffs have allowed the defendant for several years, to make use of the land without any contractual or legal basis. Hence, defendants possession of the subject property is only by tolerance. 8. But [plaintiffs] patience has come to its limits. Hence, sometime in the last quarter of 2002, plaintiffs made several demands upon said defendant to settle and/or pay rentals for the use of the property. xxxx 10. Notwithstanding receipt of the demand letters, defendant failed and refused, as it continues to fail and refuse to pay reasonable monthly rentals for the use and occupancy of the land, and to vacate the subject premises despite the lapse of the fifteen-day period specified in the said demand letters. Consequently, defendant is unlawfully withholding possession of the subject property from the plaintiffs, who are the owners thereof.7 Upon service of summons, respondent filed its Answer8 dated July 31, 2003 where it averred that:

24

3. The defendant ADMITS the allegations set forth in paragraph 4 of the Complaint to the effect that the defendant "took full control and possession of the subject property, developed the same" and has been using the premises in accordance with its agreements with the City of Roxas and the purposes of the defendant corporation without any objection or opposition of any kind on the part of the plaintiffs for over twenty-two long years; the defendant specifically DENIES the allegations contained in the last part of this paragraph 4 of the Complaint that the defendant has used the property leased for commercial purposes, the truth of the matter being that the defendant has used and [is] still using the property only for civic non-profit endeavors hewing closely to purposes of the defendant Gerry Roxas Foundation Inc., inter alia, devoted to general welfare, protection, and upliftment of the people of Roxas City, Capiz, and in Panay Island, and elsewhere in the Philippines; that the Foundation has spent out of its own funds for the compliance of its avowed aims and purposes, up to the present, more than P25M, and that all the improvements, including a beautiful auditorium built in the leased premises of the Foundation "shall accrue to the CITY (of Roxas), free from any compensation whatsoever, upon the expiration of this Lease" (Memorandum of Agreement, Annex "2" hereof), eighteen (18) years hence; xxxx 5. The defendant specifically DENIES the allegations set forth in paragraph 7 of the Complaint, the truth being that the defendant took possession of the subject property by virtue of Memorandums of Agreement, photo-copies of which are hereto attached as Annexes "1" and "2" and made integral parts hereof, entered into by defendant and the City of Roxas, which is the true and lawful owner thereof; thus, the possession of the subject property by the defendant foundation is lawful, being a lessee thereof; xxxx 8. The defendant ADMITS the allegations set forth in paragraph 10 of the Complaint that defendant refused to pay monthly rental to the plaintiffs and to vacate the premises, but specifically DENIES the rest of the allegations thereof, the truth being that defendant has no obligation whatsoever, to the plaintiffs, as they are neither the owners or lessors of the land occupied by defendant; xxxx As and by way of AFFIRMATIVE DEFENSE The defendant repleads the foregoing allegations, and avers further that: 12. The plaintiffs have no cause of action against defendant. The leased property does not belong to the plaintiffs. The property covered by Transfer Certificate of Title No. T-18397, [is] occupied by the [defendant] as [lessee] of the City of Roxas since 1991, the latter having acquired it by purchase from the plaintiffs way back on February 19, 1981, as evidenced by the Deed of Absolute Sale which is hereto attached as Annex "3" and made an integral part hereof. While, admittedly, the said certificate of title is still in the name of the plaintiffs,

25

nevertheless, the ownership of the property covered therein has already transferred to the City of Roxas upon its delivery to it. Article 1496 of the Civil Code provides that, ownership of the thing sold is acquired by the vendee from the moment it is delivered to him in any of the ways specified in articles 1497 to 1501, or in any other manner signifying an agreement that the possession is transferred from the vendor to the vendee. It is also provided under Article 1498 of the Civil Code 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. Upon execution of the Deed of Absolute Sale (Annex "3"), the plaintiffs have relinquished ownership of the property subject thereof in favor of the vendee, City of Roxas. Necessarily, the possession of the property subject of the said Deed of Absolute Sale now pertains to the City of Roxas and the plaintiffs have no more right, whatsoever, to the possession of the same. It is defendant foundation by virtue of the Memorandums of Agreement (Annexes "1" and "2" hereof), which has the legal right to have possession of the subject property;9 After the MTCC issued an Order setting the case for preliminary conference, respondent filed on October 20, 2003 a Motion to Resolve its Defenses on Forum Shopping and Lack of Cause of Action. Records show that before the instant case was filed, the City of Roxas had already filed a case against petitioners for "Surrender of Withheld Duplicate Certificate Under Section 107, [Presidential Decree No.] 1529" docketed as Special Case No. SPL-020-03 with the Regional Trial Court (RTC) of Roxas City. Subsequently, on October 27, 2003, petitioners filed their Opposition to the said Motion. Ruling of the Municipal Trial Court in Cities On November 24, 2003, the MTCC issued an Order10 resolving the respondents Motion. In the said Order, the MTCC held that: The plaintiffs [have] no cause of action against herein defendant. The defendant is the lessee of the City of Roxas of the parcel of land in question. There has been no previous contractual relationship between the plaintiffs Del Rosarios and the defendant Gerry Roxas Foundation, Inc. affecting the title of the land leased by the [Gerry] Roxas Foundation. The Gerry Roxas Foundation, Inc. has not unlawfully withheld the possession of the land it is leasing from its lessor. Its right to the physical possession of the land leased by it from the City of Roxas subsists and continues to subsist until the termination of the contract of lease according to its terms and pursuant to law. The defendant had presented as its main defense that the property was already sold by the plaintiffs to the present lessor of the property, the City of Roxas thru a Deed of Absolute Sale dated February 19, 1981 executed by herein [plaintiff] spouses as vendors. Plaintiffs had not directly and specifically shown that the purported Deed of Absolute Sale does not exist; rather, they contend that said document is merely defective. They had not even denied the signatories to the said Contract of Sale; specifically the authenticity of the spouses-plaintiffs signatures; all that plaintiffs did merely referred to it as null and void and highly questionable without any specifications. When the parties pleadings fail to tender any issue of fact, either because all the factual allegations have been admitted expressly or impliedly; as when a denial is a general denial; there is no need of conducting a trial, since there is no need of

26

presenting evidence anymore. The case is then ripe for judicial determination, either through a judgment on the pleadings (Rules of Court, Rule 34) or by summary judgment under Rule 35, Rules of Court. In the instant case, plaintiffs alleged that sometime in 1991, without the consent and authority of the plaintiffs, defendant took full control and possession of the subject property, developed the same and use[d] it for commercial purposes. x x x for so many years, plaintiffs patiently waited for someone to make representation to them regarding the use of the subject property, but the same never happened. Plaintiff[s] have allowed the defendant for several years, to make use of the land without any contractual or legal basis. Hence, defendants possession of the subject property is only by tolerance. xxxx Defendant admits the allegations of the plaintiffs that the defendant "took full control and possession of the subject property, developed the same" and has been using the premises in accordance with its agreements with the City of Roxas and the purposes of the defendant corporation without any objection or opposition of any kind on the part of the plaintiffs for over twenty-two long years. That the defendants possession of the subject property is by virtue of a contract of lease entered into by the defendant foundation with the City of Roxas which is the true and lawful owner, the latter having acquired said property by virtue of a Deed of Absolute Sale as early as February 19, 1981, long before the defendant foundations occupation of the property. In Alcos v. IAC 162 SCRA 823 (1988), Buyers immediate possession and occupation of the property was deemed corroborative of the truthfulness and authenticity of the deed of sale. WHEREFORE, although this Court finds the defense on forum shopping interposed by the defendant to be untenable and unmeritorious, and hence, denied; this Court still finds the pleadings filed by the plaintiffs-spouses to be without a cause of action and hence, dismisses this instant complaint. With cost against the plaintiffs. SO ORDERED.11 Ruling of the Regional Trial Court On appeal, the RTC of Roxas City, Branch 17 rendered a Decision12 dated July 9, 2004 affirming the MTCC Order. Ruling of the Court of Appeals Aggrieved, petitioners filed with the CA a Petition for Review. However, the CA, in a Decision13 dated April 26, 2005, dismissed the petition and affirmed the assailed Decision of the RTC. Petitioners timely filed a Motion for Reconsideration14 which was, however, denied in a Resolution15 dated November 15, 2005. Issues Still undaunted, petitioners now come to this Court on a Petition for Review on Certiorari raising the following issues:

27

I. Whether x x x in determining if there is a case for unlawful detainer, a court should limit itself in interpreting a single phrase/allegation in the complaint; and, II. Whether x x x there exists an unlawful detainer in this case.16 Our Ruling The petition is bereft of merit. The allegations in petitioners Complaint constitute judicial admissions. Petitioners alleged in their Complaint before the MTCC, among others, that: (1) sometime in 1991, without their consent and authority, respondent took full control and possession of the subject property, developed the same and used it for commercial purposes; and (2) they allowed the respondent for several years, to make use of the land without any contractual or legal basis. Petitioners thus conclude that respondents possession of subject property is only by tolerance. Section 4, Rule 129 of the Rules of Court provides that: 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. x x x "A judicial admission is one so made in pleadings filed or in the progress of a trial as to dispense with the introduction of evidence otherwise necessary to dispense with some rules of practice necessary to be observed and complied with."17 Correspondingly, "facts alleged in the complaint are deemed admissions of the plaintiff and binding upon him."18 "The allegations, statements or admissions contained in a pleading are conclusive as against the pleader."19 In this case, petitioners judicially admitted that respondents took control and possession of subject property without their consent and authority and that respondents use of the land was without any contractual or legal basis. Nature of the action is determined by the judicial admissions in the Complaint. In Spouses Huguete v. Spouses Embudo,20 citing Caiza v. Court of Appeals,21 this Court held that "what determines the nature of an action as well as which court has jurisdiction over it are the allegations of the complaint and the character of the relief sought." This Court, in Sumulong v. Court of Appeals,22 differentiated the distinct causes of action in forcible entry vis--vis unlawful detainer, to wit: Forcible entry and unlawful detainer are two distinct causes of action defined in Section 1, Rule 70 of the Rules of Court. In forcible entry, one is deprived of physical possession of any land or building by means of force, intimidation, threat, strategy, or stealth. In unlawful detainer, one unlawfully withholds possession thereof after the expiration or termination of his right to hold possession under any contract, express or implied. In forcible entry, the possession is illegal from the beginning and the only issue is who has the prior possession de facto. In unlawful detainer, possession was originally lawful but became unlawful by the expiration or termination of the right to possess and the issue of rightful possession is the one decisive, for in such action, the

28

defendant is the party in actual possession and the plaintiff's cause of action is the termination of the defendant's right to continue in possession.23 "The words by force, intimidation, threat, strategy or stealth shall include every situation or condition under which one person can wrongfully enter upon real property and exclude another, who has had prior possession, therefrom."24 "The foundation of the action is really the forcible exclusion of the original possessor by a person who has entered without right."25 "The act of going on the property and excluding the lawful possessor therefrom necessarily implies the exertion of force over the property, and this is all that is necessary."26 The employment of force, in this case, can be deduced from petitioners allegation that respondent took full control and possession of the subject property without their consent and authority.1avvphi1 "Stealth, on the other hand, is defined as any secret, sly, or clandestine act to avoid discovery and to gain entrance into or remain within residence of another without permission,"27 while strategy connotes the employment of machinations or artifices to gain possession of the subject property.28 The CA found that based on the petitioners allegations in their complaint, "respondents entry on the land of the petitioners was by stealth x x x."29However, stealth as defined requires a clandestine character which is not availing in the instant case as the entry of the respondent into the property appears to be with the knowledge of the petitioners as shown by petitioners allegation in their complaint that "[c]onsidering the personalities behind the defendant foundation and considering further that it is plaintiffs nephew, then the vice-mayor, and now the Mayor of the City of Roxas Antonio A. del Rosario, although without any legal or contractual right, who transacted with the foundation, plaintiffs did not interfere with the activities of the foundation using their property."30 To this Courts mind, this allegation if true, also illustrates strategy. Taken in its entirety, the allegations in the Complaint establish a cause of action for forcible entry, and not for unlawful detainer. "In forcible entry, one is deprived of physical possession of any land or building by means of force, intimidation, threat, strategy, or stealth."31 "[W]here the defendants possession of the property is illegal ab initio," the summary action for forcible entry (detentacion) is the remedy to recover possession.32 In their Complaint, petitioners maintained that the respondent took possession and control of the subject property without any contractual or legal basis.33 Assuming that these allegations are true, it hence follows that respondents possession was illegal from the very beginning. Therefore, the foundation of petitioners complaint is one for forcible entry that is "the forcible exclusion of the original possessor by a person who has entered without right."34 Thus, and as correctly found by the CA, there can be no tolerance as petitioners alleged that respondents possession was illegal at the inception.35 Corollarily, since the deprivation of physical possession, as alleged in petitioners Complaint and as earlier discussed, was attended by strategy and force, this Court finds that the proper remedy for the petitioners was to file a Complaint for Forcible Entry and not the instant suit for unlawful detainer. Petitioners should have filed a Complaint for Forcible Entry within the reglementary one-year period from the time of dispossession.

29

Petitioners likewise alleged in their Complaint that respondent took possession and occupancy of subject property in 1991. Considering that the action for forcible entry must be filed within one year from the time of dispossession,36 the action for forcible entry has already prescribed when petitioners filed their Complaint in 2003. As a consequence, the Complaint failed to state a valid cause of action against the respondent. In fine, the MTCC properly dismissed the Complaint, and the RTC and the CA correctly affirmed said order of dismissal. WHEREFORE, the petition is DENIED. The Decision dated April 26, 2005 and the Resolution dated November 15, 2005 of the Court of Appeals in CA-G.R. SP No. 87784 are AFFIRMED. SO ORDERED. --HO WAI PANG, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION DEL CASTILLO, J.: Infraction of the rights of an accused during custodial investigation or the so-called Miranda Rights render inadmissible only the extrajudicial confession or admission made during such investigation.1 "The admissibility of other evidence, provided they are relevant to the issue and is not otherwise excluded by law or rules, is not affected even if obtained or taken in the course of custodial investigation."2 Petitioner Ho Wai Pang (petitioner) in this present recourse assails the June 16, 2006 Decision3 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 01459 affirming the April 6, 1995 Decision4 of the Regional Trial Court (RTC), Branch 118 of Pasay City in Criminal Case No. 91-1592, finding him and his co-accused, namely, Law Ka Wang, Chan Chit Yue,5 Wu Hing Sum, Tin San Mao6 and Kin San Ho7 guilty beyond reasonable doubt for violation of Section 15, Article III8 of Republic Act (R.A.) No. 6425 otherwise known as the Dangerous Drugs Act of 1972. Also assailed is the January 16, 2007 CA Resolution9 denying the motion for reconsideration thereto. Factual Antecedents On September 6, 1991, at around 11:30 in the evening, United Arab Emirates Airlines Flight No. 068 from Hongkong arrived at the Ninoy Aquino International Airport (NAIA). Among the passengers were 13 Hongkong nationals who came to the Philippines as tourists. At the arrival area, the group leader Wong Kwok Wah (Sonny Wong) presented a Baggage Declaration Form to Customs Examiner Gilda L. Cinco (Cinco), who was then manning Lane 8 of the Express Lane. Cinco examined the baggages of each of the 13 passengers as their turn came up. From the first traveling bag, she saw few personal belongings such as used clothing, shoes and chocolate boxes which she pressed. When the second bag was examined, she noticed chocolate boxes which were almost of the same size as those in the first bag. Becoming suspicious, she took out four of the chocolate boxes and opened one of them. Instead

30

of chocolates, what she saw inside was white crystalline substance contained in a white transparent plastic. Cinco thus immediately called the attention of her immediate superiors Duty Collector Alalo and Customs Appraiser Nora Sancho who advised her to call the Narcotics Command (NARCOM) and the police. Thereupon, she guided the tourists to the Intensive Counting Unit (ICU) while bringing with her the four chocolate boxes earlier discovered. At the ICU, Cinco called the tourists one after the other using the passenger manifest and further examined their bags. The bag of Law Ka Wang was first found to contain three chocolate boxes. Next was petitioners bag which contains nothing except for personal effects. Cinco, however, recalled that two of the chocolate boxes earlier discovered at the express lane belong to him. Wu Hing Sums bag followed and same yielded three chocolate boxes while the baggages of Ho Kin San, Chan Chit Yue and Tin San Mao each contained two or three similar chocolate boxes. All in all, 18 chocolate boxes were recovered from the baggages of the six accused. NARCOM Agent Neowillie de Castro corroborated the relevant testimony of Cinco pertaining to the presence of the chocolate boxes. According to him, he conducted a test on the white crystalline substance contained in said chocolate boxes at the NAIA using the Mandelline Re-Agent Test.10 The result of his examination11 of the white crystalline substance yielded positive for methamphetamine hydrochloride or shabu. Thereafter, the chocolate boxes were bundled together with tape, placed inside a plastic bag and brought to the Inbond Section. The following day, September 7, 1991, the 13 tourists were brought to the National Bureau of Investigation (NBI) for further questioning. The confiscated stuff were turned over to the Forensic Chemist who weighed and examined them. Findings show that its total weight is 31.1126 kilograms and that the representative samples were positive for methamphetamine hydrochloride.12 Out of the 13 tourists, the NBI found evidence for violation of R.A. No. 6425 only as against petitioner and his five coaccused. Accordingly, six separate Informations all dated September 19, 1991 were filed against petitioner and his co-accused. These Informations were docketed as Criminal Case Nos. 91-1591 to 97. Subsequently, however, petitioner filed a Motion for Reinvestigation13 which the trial court granted. The reinvestigation conducted gave way to a finding of conspiracy among the accused and this resulted to the filing of a single Amended Information14under Criminal Case No. 91-1592 and to the withdrawal of the other Informations.15 The Amended Information reads: That on or about September 6, 1991 in Pasay City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, did, then and there, willfully, unlawfully and feloniously carry and transport into the country without lawful authority, 31.112 kilograms, more or less, of Methamphetamine Hydrochloride, also popularly known as "SHABU", a regulated drug. CONTRARY TO LAW.16 After pleading not guilty to the crime charged,17 all the accused testified almost identically, invoking denial as their defense. They claimed that they have no knowledge about the transportation of illegal substance (shabu) taken from their traveling bags which were provided by the travel agency. Ruling of the Regional Trial Court

31

On April 6, 1995, the RTC rendered a Decision18 finding all the accused guilty of violating Section 15, Article III of R.A. No. 6425, as amended, the decretal portion of which reads: WHEREFORE, all the foregoing considered, the Court finds the accused LAW KA WANG, CHAN CHIT yue, ho wai pang, wu hing sum, tin sun mao, and kin san ho (ho kin san) guilty of Conspiracy in violating Section 15, Article III, Republic Act No. 6425, as amended for having conspired to transport into the Philippines 31.112 kilograms of methamp[h]etamine hydrochloride, locally known as Shabu, and they are hereby sentenced to suffer the PENALTY OF IMPRISONMENT OF SIX (6) [sic] RECLUSION PERPETUA AND TO PAY EACH (SIC) THE AMOUNT OF THIRTY (30) THOUSAND PESOS (p30,000.00) each as FINE, the penalty of reclusion perpetua is being imposed pursuant to Republic Act No. 7659 considering its applicability to the accused though retroactively for having a less stricter penalty than that of life imprisonment provided in Republic Act No. 6425. The fine ofP30,000.00 for each accused is imposed pursuant to R.A. No. 6425 it being more favorable to the accused [than] that provided in R.A. No. 7659 WITH IMMEDIATE DEPORTATION AFTER SERVICE OF SENTENCE. The penalty of death cannot be imposed since the offense was committed prior to the effectivity of R.A. No. 7659. Let an alias warrant of arrest be issued against accused WONG KOK WAH @ SONNY WONG, CHAN TAK PIU, HO WAI LING AND INOCENCIA CHENG. SO ORDERED.19 From this judgment, all the accused appealed to this Court where the case records were forwarded to per Order of the RTC dated May 10, 1995.20 Later, all the accused except for petitioner, filed on separate dates their respective withdrawal of appeal.21 This Court, after being satisfied that the withdrawing appellants were fully aware of the consequences of their action, granted the withdrawal of their respective appeals through a Resolution dated June 18, 1997.22 Per Entry of Judgment, 23 said Resolution became final and executory on July 7, 1997. Consequently, petitioner was the only one left to pursue his appeal. Petitioner filed his Brief24 on April 6, 1998 while the brief25 for the respondent People of the Philippines was filed on August 27, 1998 through the Office of the Solicitor General (OSG). Per Resolution26 dated August 30, 2004, this Court referred the appeal to the CA for proper disposition and determination pursuant to this Courts ruling in People v. Mateo.27 Ruling of the Court of Appeals On June 16, 2006, the CA denied the appeal and affirmed the Decision of the RTC. While conceding that petitioners constitutional right to counsel during the custodial investigation was indeed violated, it nevertheless went on to hold that there were other evidence sufficient to warrant his conviction. The CA also rebuked petitioners claim that he was deprived of his constitutional and statutory right to confront the witnesses against him. The CA gave credence to the testimonies of the prosecution witnesses and quoted with favor the trial courts ratiocination regarding the existence of conspiracy among the accused. Undeterred, petitioner filed a Motion for Reconsideration28 which the CA denied in its Resolution29 dated January 16, 2007. Hence, this petition for review on certiorari anchored on the following grounds:

32

I WHILE ACKNOWLEDGING THAT PETITIONER WAS DEPRIVED OF HIS CONSTITUTIONAL AND STATUTORY RIGHTS UNDER CUSTODIAL INVESTIGATION BOTH BY THE CUSTOMS OFFICIALS AND BY THE NBI INVESTIGATORS, THE HONORABLE COURT OF APPEALS ERRED IN NOT EXCLUDING EVIDENCE TAKEN DURING THE CUSTODIAL INVESTIGATION. II THE HONORABLE COURT OF APPEALS ERRED IN NOT CONSIDERING THAT PETITIONER WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HIM. III THE HONORABLE COURT OF APPEALS ERRED IN NOT FINDING THAT THE PROSECUTIONS EVIDENCE FAILED TO ESTABLISH THE EXISTENCE OF A CONSPIRACY. IV THE HONORABLE COURT OF APPEALS ERRED IN NOT FINDING THAT THE PROSECUTION FAILED TO PRESENT PROOF BEYOND REASONABLE DOUBT AS TO OVERTURN THE PRESUMPTION OF INNOCENCE ACCORDED TO PETITIONER BY THE CONSTITUTION.30 OUR RULING The petition lacks merit. Section 12, Article III of the Constitution prohibits as evidence only confessions and admissions of the accused as against himself. Anent the error first assigned, petitioner takes issue on the fact that he was not assisted by a competent and independent lawyer during the custodial investigation. He claimed that he was not duly informed of his rights to remain silent and to have competent counsel of his choice. Hence, petitioner faults the CA in not excluding evidence taken during such investigation. While there is no dispute that petitioner was subjected to all the rituals of a custodial questioning by the customs authorities and the NBI in violation of his constitutional right under Section 1231 of Article III of the Constitution, we must not, however, lose sight of the fact that what said constitutional provision prohibits as evidence are only confessions and admissions of the accused as against himself. Thus, in Aquino v. Paiste,32 the Court categorically ruled that "the infractions of the so-called Miranda rights render inadmissible only the extrajudicial confession or admission made during custodial investigation. The admissibility of other evidence, provided they are relevant to the issue and [are] not otherwise excluded by law or rules, [are] not affected even if obtained or taken in the course of custodial investigation." In the case at bench, petitioner did not make any confession or admission during his custodial investigation. The prosecution did not present any extrajudicial confession extracted from him as evidence of his guilt. Moreover, no statement was taken from

33

petitioner during his detention and subsequently used in evidence against him. Verily, in determining the guilt of the petitioner and his co-accused, the trial court based its Decision on the testimonies of the prosecution witnesses and on the existence of the confiscated shabu. As the Court held in People v. Buluran,33 "[a]ny allegation of violation of rights during custodial investigation is relevant and material only to cases in which an extrajudicial admission or confession extracted from the accused becomes the basis of their conviction." Hence, petitioners claim that the trial court erred in not excluding evidence taken during the custodial investigation deserves scant consideration. Petitioner cannot take refuge in this Courts ruling in People v. Wong Chuen Ming34 to exculpate himself from the crime charged. Though there are semblance in the facts, the case of Ming is not exactly on all fours with the present case. The disparity is clear from the evidence adduced upon which the trial courts in each case relied on in rendering their respective decisions. Apparently in Ming, the trial court, in convicting the accused, relied heavily on the signatures which they affixed on the boxes of Alpen Cereals and on the plastic bags. The Court construed the accuseds act of affixing their signatures thereon as a tacit admission of the crime charged. And, since the accused were not informed of their Miranda rights when they affixed their signatures, the admission was declared inadmissible evidence for having been obtained in violation of their constitutional rights. In ruling against the accused, the trial court also gave credence to the sole testimony of the customs examiner whom it presumed to have performed his duties in regular manner. However, in reversing the judgment of conviction, the Court noted that said examiners testimony was not corroborated by other prosecution witnesses. On the other hand, petitioners conviction in the present case was on the strength of his having been caught inflagrante delicto transporting shabu into the country and not on the basis of any confession or admission. Moreover, the testimony of Cinco was found to be direct, positive and credible by the trial court, hence it need not be corroborated. Cinco witnessed the entire incident thus providing direct evidence as eyewitness to the very act of the commission of the crime. As the Court held in People v Dela Cruz,35 "[n]o rule exists which requires a testimony to be corroborated to be adjudged credible. x x x Thus, it is not at all uncommon to reach a conclusion of guilt on the basis of the testimony of a single witness despite the lack of corroboration, where such testimony is found positive and credible by the trial court. In such a case, the lone testimony is sufficient to produce a conviction." Indeed, a ruling in one case cannot simply be bodily lifted and applied to another case when there are stark differences between the two cases. Cases must be decided based on their own unique facts and applicable law and jurisprudence. Petitioner was not denied of his right to confrontation. Turning now to the second assigned error, petitioner invokes the pertinent provision of Section 14(2) of Article III of the 1987 Philippine Constitution providing for the right to confrontation, viz: Section 14. x x x (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his

34

behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable. Petitioner asserts that he was deprived of his right to know and understand what the witnesses testified to. According to him, only a full understanding of what the witnesses would testify to would enable an accused to comprehend the evidence being offered against him and to refute it by cross-examination or by his own countervailing evidence. In refutation, the OSG countered that petitioner was given the opportunity to confront his accusers and/or the witnesses of the prosecution when his counsel crossexamined them. It is petitioners call to hire an interpreter to understand the proceedings before him and if he could not do so, he should have manifested it before the court. At any rate, the OSG contends that petitioner was nevertheless able to cross-examine the prosecution witnesses and that such examination suffices as compliance with petitioners right to confront the witnesses against him. We agree with the OSG. As borne out by the records, petitioner did not register any objection to the presentation of the prosecutions evidence particularly on the testimony of Cinco despite the absence of an interpreter. Moreover, it has not been shown that the lack of an interpreter greatly prejudiced him. Still and all, the important thing is that petitioner, through counsel, was able to fully cross-examine Cinco and the other witnesses and test their credibility. The right to confrontation is essentially a guarantee that a defendant may cross-examine the witnesses of the prosecution. In People v. Libo-on,36 the Court held: The right to confrontation is one of the fundamental rights guaranteed by the Constitution to the person facing criminal prosecution who should know, in fairness, who his accusers are and must be given a chance to cross-examine them on their charges. The chief purpose of the right of confrontation is to secure the opportunity for cross-examination, so that if the opportunity for cross-examination has been secured, the function and test of confrontation has also been accomplished, the confrontation being merely the dramatic preliminary to cross-examination. Under the circumstances obtaining, petitioners constitutional right to confront the witnesses against him was not impaired. Conspiracy among the accused was duly established. Respecting the third assigned error, we uphold the trial courts finding of conspiracy which was quoted by the appellate court in its assailed Decision, and which we once again herein reproduce with approval: On the allegation of conspiracy, the Court finds [no] direct evidence to conclude conspiracy. However, just like in other cases where conspiracy is not usually established by direct evidence but by circumstantial evidence, the Court finds that there are enough circumstantial evidence which if taken together sufficiently prove conspiracy. First, it cannot be denied that the accused somehow have known each other prior to their [departure] in Hong Kong for Manila. Although Law Ka Wang denied having known any of the accused prior to the incident in NAIA, accused Ho Wai Pang identified him as the one who assisted him in the supposed tour in the Philippines to the extent of directly dealing with the travel agency and [that] Law Ka

35

Wang was the one who received the personal things of Ho Wai Pang allegedly to be place[d] in a bag provided for by the travel agency. Accused Wu Hing Sum has been known to accused Ho Kin San for about two to three years as they used to work as cooks in a restaurant in Hong Kong. Accused Ho Wai Ling, who is still at large, is know[n] to accused Chan Chit Yue, Wu Hing Sum and Ho Kin San. These relationships in a way can lead to the presumption that they have the capability to enter into a conspiracy. Second, all the illegal substances confiscated from the six accused were contained in chocolate boxes of similar sizes and almost the same weight all contained in their luggages. The Court agrees with the finding of the trial prosecutor that under the given circumstances, the offense charged [c]ould have been perpetrated only through an elaborate and methodically planned conspiracy with all the accused assiduously cooperating and mutually helping each other in order to ensure its success.37 We find no cogent reason to reverse such findings. "Conspiracy is [the] common design to commit a felony."38 "[C]onspiracy which determines criminal culpability need not entail a close personal association or at least an acquaintance between or among the participants to a crime."39 "It need not be shown that the parties actually came together and agreed in express terms to enter into and pursue a common design."40 "The assent of the minds may be and, from the secrecy of the crime, usually inferred from proof of facts and circumstances which, taken together, indicate that they are parts of some complete whole" as we ruled in People v. Mateo, Jr.41 Here, it can be deduced from petitioner and his co-accuseds collective conduct, viewed in its totality, that there was a common design, concerted action and concurrence of sentiments in bringing about the crime committed. Petitioners guilt was proved beyond reasonable doubt. Finally, petitioner asserts that the prosecution failed to prove his guilt beyond reasonable doubt. He makes capital on the contention that no chocolate boxes were found in his traveling bag when it was examined at the ICU. He claimed that it was his co-accused Sonny Wong who took charge in ascribing upon him the possession of the two chocolate boxes. Petitioners contentions fail to persuade. True, when principal prosecution witness Cinco first testified on June 3, 1992, she declared that she did not see any chocolate boxes but only personal effects in petitioners bag.42 Nonetheless, she clarified in her succeeding testimony that she recalls taking the two chocolate boxes from petitioners bag when they were still at the counter. This sufficiently explained why Cinco did not find any chocolate boxes from petitioners bag when they were at the ICU.43 To us, this slight clash in Cincos statements neither dilute her credibility nor the veracity of her testimony. The trial courts words on this matter when it resolved petitioners Demurrer to Evidence in its Order44 of February 16, 1993 is quite enlightening. Thus In claiming that the evidences [sic] presented by the prosecution is insufficient to command conviction, the Demurrer went on to say that the testimony of Hilda Cinco is either conjectural or hearsay and definitely missed its mark in incriminating accused, Ho Wai Pang, because she even testified that she found nothing inside the hand-carried luggage of Ho Wai Pang (pp. 48-49, TSN, June 3, 1992). But that was when investigation was going on at the Intensive Counting Unit (ICU). However, the same Hilda Cinco later on testified that from the express lane in going to the ICU,

36

after the discovery of shabu, she was already carrying with her four (4) chocolate boxes, two of [which] taken from the bag of Tin Sun Mau and the other two retrieved from the luggage of herein movant, Ho Wai Pang. Categorically, Cinco admitted it was the reason that at the ICU, Ho Wai Pangs bag was already empty (pp. 53-54, TSN, June 3, 1992), but she nonetheless recognized the bag and could recall the owner thereof, pointing to Ho Wai Pang. Such testimony is not hearsay evidence. They are facts from the personal perception of the witness and out of her personal knowledge. Neither is it conjectural.45 Jurisprudence teaches that in assessing the credibility of a witness, his testimony must be considered in its entirety instead of in truncated parts. The technique in deciphering a testimony is not to consider only its isolated parts and anchor a conclusion on the basis of said parts. "In ascertaining the facts established by a witness, everything stated by him on direct, cross and redirect examinations must be calibrated and considered."46 Also, where there is nothing in the records which would show a motive or reason on the part of the witnesses to falsely implicate the accused, identification should be given full weight. Here, petitioner presented no evidence or anything to indicate that the principal witness for the prosecution, Cinco, was moved by any improper motive, hence her testimony is entitled to full faith and credit.1avvphi1 Verily, the evidence adduced against petitioner is so overwhelming that this Court is convinced that his guilt has been established beyond reasonable doubt. Nothing else can speak so eloquently of his culpability than the unassailable fact that he was caught red-handed in the very act of transporting, along with his co-accused, shabu into the country. In stark contrast, the evidence for the defense consists mainly of denials. Petitioner tried to show that he was not aware of the shabu inside his luggage considering that his bag was provided by the travel agency. However, it bears stressing that the act of transporting a prohibited drug is a malum prohibitum because it is punished as an offense under a special law. As such, the mere commission of the act is what constitutes the offense punished and same suffices to validly charge and convict an individual caught committing the act so punished regardless of criminal intent. Moreover, beyond his bare denials, petitioner has not presented any plausible proof to successfully rebut the evidence for the prosecution. "It is basic that affirmative testimony of persons who are eyewitnesses of the events or facts asserted easily overrides negative testimony."47 All told, we are convinced that the courts below committed no error in adjudging petitioner guilty of transporting methamphetamine hydrochloride or shabu into the country in violation of Section 15, Article III of R.A. No. 6425, as amended. Penalty As to the penalties imposed by the trial court and as affirmed by the appellate court, we find the same in accord with law and jurisprudence. It should be recalled that at the time of the commission of the crime on September 6, 1991, Section 15 of R.A. No. 6425 was already amended by Presidential Decree No. 1683.48 The decree provided that for violation of said Section 15, the penalty of life imprisonment to death and a fine ranging from P20,000.00 to P30,000.00 shall be imposed. Subsequently, however, R.A. No. 765949 further introduced new amendments to Section 15, Article III and Section 20, Article IV of R.A. No. 6425, as amended. Under the new amendments, the penalty prescribed in Section 15 was changed from "life imprisonment to death and a fine ranging fromP20,000.00 to P30,000.00" to "reclusion perpetua to death

37

and a fine ranging from P500,000.00 to P10 million". On the other hand, Section 17 of R.A. No. 7659 amended Section 20, Article IV of R.A. No. 6425 in that the new penalty provided by the amendatory law shall be applied depending on the quantity of the dangerous drugs involved. The trial court, in this case, imposed on petitioner the penalty of reclusion perpetua under R.A. No. 7659 rather than life imprisonment ratiocinating that R.A. No. 7659 could be given retroactive application, it being more favorable to the petitioner in view of its having a less stricter punishment. We agree. In People v. Doroja,50 we held: In People v. Martin Simon (G.R. No. 93028, 29 July 1994) this Court ruled (a) that the amendatory law, being more lenient and favorable to the accused than the original provisions of the Dangerous Drugs Act, should be accorded retroactive application, x x x. And, since "reclusion perpetua is a lighter penalty than life imprisonment, and considering the rule that criminal statutes with a favorable effect to the accused, have, as to him, a retroactive effect",51 the penalty imposed by the trial court upon petitioner is proper. Consequently, the Court sustains the penalty of imprisonment, which is reclusion perpetua, as well as the amount of fine imposed by the trial court upon petitioner, the same being more favorable to him. WHEREFORE premises considered, the petition is DENIED and the assailed June 16, 2006 Decision and January 16, 2007 Resolution of the Court of Appeals in CA-G.R. CRH.C. No. 01459 are AFFIRMED. SO ORDERED.

38