G.R. No.

185277

March 18, 2010

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. RODOLFO GALLO, Accused-Appellant. DECISION PEREZ, J.: This is an appeal from the Decision1 dated 31 January 2008 of the Court of Appeals, affirming, with modification, the Judgment 2 of conviction for the crimes of illegal recruitment and estafa rendered by the Regional Trial Court of Manila, Branch 34. Appellant Rodolfo Gallo (Gallo), together with Pilar Manta (Manta) and Fides Pacardo (Pacardo), was originally charged with illegal recruitment in large scale and thirty four (34) counts of estafa in thirty five (35) separate informations3 filed before the Regional Trial Court of Manila, Branch 34. When arraigned, all three accused pleaded not guilty to the charges. 4 In the course of the trial of the cases, some of the private complainants, one after another, moved for the withdrawal of their respective complaints 5 while others failed to appear during the scheduled hearings despite due notice.6 Hence, the public prosecutor moved for the provisional dismissal7 of their cases until only three private complainants remained. The remaining private complainants, Reynaldo Panlilio (Panlilio), Ian Fernandez (Fernandez) and Zenaida Filomeno (Filomeno), testified for the prosecution. Fernandez narrated that at around 9:00 a.m. on 5 June 2001, he was at the MPM International Recruitment Agency (MPM) with his friend Reynaldo Panlilio applying for a job overseas.8 He recounted that he was able to talk first with accused Gallo, then with the owner of MPM, Mardeolyn Martir (Martir).9 Gallo informed him that if he paysP45,000.00, he would be able to leave for Korea in two to three months time.10 Thus, he returned the following day with P45,000.00 and gave the amount to Martir.11 Gallo issued a receipt covering the amount but this was later on replaced with a promissory note. 12 Panlilio narrated that on 5 June 2001, he went to the offices of MPM in Ermita, Manila, to apply for a job as a factory worker in Korea.13 He testified that he talked to Martir who told him to come back the next day withP45,000.00 for the processing of his application. 14 Upon arriving the following day (6 June 2001), he was met by accused Gallo and upon the instruction of Martir, Panlilio gave the money to Gallo. 15 Unable to leave for Korea despite the lapse of several months, Panlilio demanded the return of his money. 16 The agency, however, requested a month within which to refund the money 17 and the receipt issued for the P45,000.00 he paid was replaced with a promissory note.18 While in the province, he learned that the agency had closed, so he went back to Manila to verify this information.19 He found out that the agency had transferred its offices to the Prudential Bank Building in Sta. Cruz, Manila. 20 There, he and about 30 to 40 other victims of the agency arrested the three accused by virtue of a citizens arrest. 21 The accused were first brought to the Sta. Cruz Police Station, then to the National Bureau of Investigation (NBI), where a formal complaint was filed against them.22

Private complainant Filomeno testified that she learned from a friend that MPM is accepting applicants for work in Korea.23 She went to the agency sometime in May 2001 and was initially met by accused Manta who instructed her to talk to Martir. 24 Inside the latters office, she found Gallo and Martir accepting applicants for overseas employment. 25 She narrated that she initially paid P15,000.00 as processing fee to Gallo and Martir who both counted the money in front of her.26 She later on paid another P5,000.00, both of which amounts were covered by a receipt.27 Gallo and Martir told her that in September 2001, she would be able to leave for Korea where she would be working as a factory worker with a monthly salary of US$500.00 plus overtime pay.28 Because she failed to leave as promised, she called the agency on at least four occasions to follow up her application, but she was unable to talk to either accused Gallo or Martir.29 When she went to the agency to personally inquire about the status of her application, she found out that the accused had been arrested so she proceeded to the NBI to file a complaint. 30 The prosecution likewise presented documentary evidence consisting of the promissory notes and official receipts issued by the agency to the private complainants. 31 Also presented was a certification dated 23 August 2002, issued by the Philippine Overseas Employment Agency, stating that according to its records, the New Filipino Manpower Development and Services, Inc. had an expired license and that its application for the reissuance of a new license was denied. 32 It appears that MPM had earlier applied for a license but its application was not granted; hence, it changed its name to New Filipino Manpower Development and Services, Inc.33 For his defense, appellant Gallo alleged that he was not an employee of MPM but was himself an applicant for overseas work.34 According to him, someone from their province informed him that MPM was recruiting applicants to be employed as factory workers in Korea, so he applied sometime in November 2000.35 He further testified that he paid P20,000.00 for the processing of his visa but was not issued a receipt; his payment was merely recorded in the agencys logbook.36 When his visa was issued, the agency asked for an additional payment of P40,000.00 for his plane fare, but he was unable to produce the amount, so another person was sent abroad in his stead. 37He was advised by Martir to wait because the visa issued to him earlier will be replaced by a trainee visa. 38 As a result, he was often seen at the office of Martir because he would often go there to follow up his application.39 He denied having received money from or having issued any receipt to private complainants.40 Appellant, however, admitted having executed a Kontra Salaysay and a Rejoinder Affidavit wherein it was stated that he is merely a utility worker of New Filipino Manpower Development and Services, Inc., and, as such, his only duties therein consist of repair, janitorial and messengerial jobs.41 He explained the conflict in his statements by claiming that the aforesaid documents were prepared by a lawyer from the NBI and he signed them without reading their contents.42 He, nevertheless, disclosed during his testimony that the personal circumstances stated in the documents were gathered by the NBI from him. 43 Finding that the evidence for the prosecution sufficiently established the criminal liability of appellant, the trial court rendered a decision on 10 April 2003 convicting him of the crimes charged. Accused Manta and Pacardo were acquitted for insufficiency of the evidence presented against them.44 The dispositive portion of the decision, in part, reads: In Criminal Case No. 02-200788: Finding Rodolfo Gallo to have participated in illegally recruiting the three complainants, Ian Fernandez, Reynaldo Panlilio and Zenaida Filomeno, he is hereby found GUILTY of the crime of Illegal Recruitment without any mitigating nor aggravating circumstance attendant to its

commission and is hereby sentenced to suffer the penalty of life imprisonment and to pay a fine of P500,000.00. In Criminal Case No. 02-200803: Finding Rodolfo Gallo having conspired and confederated with another person not charged in this Information in defrauding Ian Fernandez, he is hereby found Guilty of the crime of Estafa without any mitigating nor aggravating circumstance attendant to its commission, granting him the benefit of the Indeterminate Sentence Law he is hereby sentenced to suffer an indeterminate prison term ranging from four (4) years two (2) months of prision correccional to ten (10) years of prision mayor. He is hereby ordered to indemnify Ian Fernandez the sum ofP45,000.00 representing the amount embezzled. In Criminal Case No. 02-200810: Finding Rodolfo Gallo having conspired and confederated with another person not charged in this Information in defrauding Zenaida Filomeno, he is hereby found Guilty of the crime of Estafa without any mitigating nor aggravating circumstance attendant to its commission, granting the accused the benefit of the Indeterminate Sentence Law, he is hereby sentenced to suffer an indeterminate prison term of ranging from four (4) years two (2) months of prision correccional to eight (8) years of prision mayor. He is hereby ordered to indemnify the victim Zenaida Filomeno the sum of P20,000.00 representing the amount embezzled. In Criminal Case No. 02-200812: Finding Rodolfo Gallo having conspired and confederated with another person not charged in this Information in defrauding Reynaldo Panlilio he is hereby found Guilty of the crime of Estafa without any mitigating nor aggravating circumstance attendant to its commission, granting him the benefit of the Indeterminate Sentence Law he is hereby sentenced to suffer an indeterminate prison term ranging from four (4) years two (2) months ofprision correccional to ten (10) years of prision mayor. He is hereby ordered to indemnify Reynaldo Panlilio the sum of P45,000.00 representing the amount of money embezzled. 45 In view of the penalty imposed, the case was elevated to this Court on automatic review. In accordance with our ruling in People v. Mateo,46 the Court resolved to transfer the cases to the Court of Appeals for intermediate review. On 31 January 2008, the Court of Appeals rendered the Decision now subject of this review. The dispositive portion of which provides: WHEREFORE, judgment is hereby rendered as follows: I. The judgment of the trial court in Criminal Case No. 02-200788 finding the accusedappellant Rodolfo Gallo guilty of Illegal Recruitment in Large Scale and sentencing him to life imprisonment, as well as to pay a fine of Five Hundred Thousand Pesos is AFFIRMED. The judgments in Criminal Cases Nos. 02-200803 and 02-200812 sentencing the accusedappellant to suffer an indeterminate prison term of four (4) years, two (2) months of prision correccional to ten (10) years of prision mayor is AFFIRMED with the following MODIFICATION: In additional to the P45,000.00 each to be paid by the accused-appellant to Ian Fernandez and Reynaldo Panlilio as actual damages; the accussed-appellant is also ordered to pay legal

interest on the said amount of P45,000.00 from the time of the filing of the Information until fully paid. II. The judgment in Criminal Case No. 02-200810 finding the accused-appellant guilty of estafa is MODIFIED, and the accused-appellant is hereby sentenced to an indeterminate penalty ranging from one (1) year, eight (8) months and twenty-one (21) days of prision correccional minimum to five (5) years, five (5) months and [eleven] (11) days of prision correccional maximum. The accused-appellant shall pay Zenaida Filomeno P20,000.00 by way of actual damages. In addition, the accused-appellant shall also pay legal interest on the said amount ofP20,000.00 from the time of filing of the Information until fully paid. In all four cases, the accused-appellant Rodolfo Gallo shall be credited with the full extent of his preventive imprisonment pursuant to Article 29 of the Revised Penal Code. Costs against accused-appellant.47 Hence, the instant petition. On 21 January 2009, the Court resolved to require the parties to file their respective supplemental briefs, if they so desire, within thirty (30) days from notice. 48 Appellant filed a Manifestation dated 18 March 2009 stating that he will no longer file a supplemental brief and is adopting his Appellants Brief as his Supplemental Brief. 49 The Office of the Solicitor General likewise manifested that it would no longer file a supplemental brief. 50 In his Brief, appellant assigns the following as errors committed by the trial court: I THE COURT A QUO ERRED IN GIVING MUCH WEIGHT AND CREDENCE TO THE TESTIMONIES OF THE PROSECUTION WITNESSES. II THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THREE COUNTS OF ESTAFA NOTWITHSTANDING THE PATENT ABSENCE OF CRIMINAL INTENT ON THE PART OF THE LATTER. III THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF THE CRIME OF ILLEGAL RECRUITMENT NOTWITHSTANDING THE FAILURE OF THE PROSECUTION TO PROVE ALL THE ESSENTIAL ELEMENTS OF THE CRIME CHARGED. 51 Appellant, in essence, claims that the prosecution failed to establish his guilt beyond reasonable doubt. The appeal must fail. We find no valid grounds to reverse the decision of the Court of Appeals affirming the lower courts judgment of conviction. Well-settled is the rule that the issue of credibility is the domain of the trial court which had the opportunity to observe the deportment and manner of the witnesses as they testified.52 The findings of facts of a trial court, arrived at only after a hearing and evaluation of the testimonies of witnesses, certainly deserve respect by an appellate court. 53 Unless it

plainly overlooked certain facts of substance and value which, if considered, may affect the result of the case, appellate courts will not disturb the findings of the trial court on the issue of credibility of witnesses, it being in a better position to decide the question, having heard and observed the witnesses themselves.54 We find no exceptional circumstances in this case that would justify a deviation from the general rule. The trial courts findings and conclusions are duly supported by the evidence on record; thus, there is no reason to disturb them. Moreover, there is no showing that the private complainants were impelled by any ill motive that could have affected their credibility. Where there is nothing to show that the witnesses for the prosecution were actuated by improper motive, their positive and categorical declarations on the witness stand, under the solemnity of an oath, deserve full faith and credence.55 Appellant professes lack of criminal intent to escape liability for estafa. He maintains that, like the private complainants, he is also an applicant trying his luck at finding work overseas; that he would usually help out in office work on occasions that he would visit the agency as an applicant which explains why complainants could have indeed seen and conversed with him about their applications. These implausible arguments fail to persuade us. As with the Regional Trial Court and the Court of Appeals, this Court is likewise convinced that the prosecution was able to prove, beyond reasonable doubt, appellants guilt for estafa under Article 315 (2)(a) of the Revised Penal Code, which provides: Article 315. Swindling (estafa). x x x xxxx 1. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud: (a)By using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits. Under the above-quoted provision, there are three (3) ways of committing estafa: (1) by using a fictitious name; (2) by falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions; and (3) by means of other similar deceits.56 To convict for this type of crime, it is essential that the false statement or fraudulent representation constitutes the very cause or the only motive which induces the complainant to part with the thing of value.57 In the case before us, appellant and Martir led the private complainants to believe that they possessed the power, qualifications and means to provide work in Korea. During the trial of these cases, it was clearly shown that, together with Martir, appellant discussed with private complainants the fact of their being deployed abroad for a job if they pay the processing fee, and that he actually received payments from private complainants. Thus, it was proven beyond reasonable doubt that the three private complainants were deceived into believing that there were jobs waiting for them in a factory in Korea when in fact there were none. Because of the assurances of appellant, each of the private complainants parted with their

money and suffered damages as a result of their being unable to leave for Korea. The elements of estafa deceit and damage are thus indisputably present, making the conviction for estafa appropriate. Appellants defense that he is also an applicant is unavailing given the complete absence of any attempt on his part to seek a refund of the money he allegedly paid to the agency when the job promised him failed to materialize. He did not complain at all, at the very least, but, instead, even "helped out" at the office whenever he went there to follow up his application. As aptly put by the Court of Appeals, "[s]uch a story is highly improbable, incompatible with human behavior and contrary to ordinary experience."58 Likewise, we find that the trial court and the Court of Appeals correctly found appellant guilty of the crime of illegal recruitment in large scale under Republic Act No. 8042, 59 the pertinent provision of which provides: Sec. 6. Definition. For purposes of this Act, illegal recruitment shall mean any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referring, contract services, promising or advertising for employment abroad, whether for profit or not, when undertaken by a non-licensee or non-holder of authority contemplated under Article 13(f) of Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines: Provided, That any such non-licensee or nonholder who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. x x x. xxxx Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group. x x x. To constitute illegal recruitment in large scale, three elements must concur: (a) the offender has no valid license or authority required by law to enable him to lawfully engage in recruitment and placement of workers; (b) the offender undertakes any of the activities within the meaning of "recruitment and placement" under Article 13(b) of the Labor Code, or any of the prohibited practices enumerated under Article 34 of the same Code (now Section 6 of Republic Act No. 8042); and, (c) the offender committed the same against three (3) or more persons, individually or as a group.60 Article 13(b) of the Labor Code defines recruitment and placement as "any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers; and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not." In the simplest terms, illegal recruitment is committed by persons who, without authority from the government, give the impression that they have the power to send workers abroad for employment purposes.61 We are persuaded that all three elements of illegal recruitment in large scale were proven in this case. First, appellant had no valid license or authority to engage in the recruitment and placement of workers. This is established by the Karagdagang Salaysay executed by Pacardo on 8 March 2002, paragraph 6 of which states that while MPM applied for a license, it was never issued one, for which reason, it changed its name to New Filipino Manpower Development and Services, Inc.62

Second, despite not having such authority, appellant nevertheless engaged in recruitment activities, offering and promising jobs to private complainants and collecting from them various amounts as placement fees. This is substantiated by the respective testimonies of the three private complainants. Fernandez narrated that it was appellant who assured him that if he pays P45,000.00, he would be able to leave for Korea within two to three months. Both Fernandez and Panlilio affirmed that they gave the money to appellant who issued a receipt therefore. Filomeno testified that when she went to the office of Martir, the latter and appellant were in the process of accepting applicants for work overseas. They told her that as a factory worker in Korea, she would have a monthly salary of US$500.00 with overtime pay. Relying on their misrepresentations, she paid the placement fee to appellant and Martir. Thus, the mere denials of appellant cannot stand against the clear, positive and straightforward testimonies of private complainants who positively identified appellant as one of two persons who undertook to recruit them for a supposed employment in Korea. As already previously mentioned, absent any evidence that the prosecution witnesses were motivated by improper motives, the trial courts assessment of the credibility of the witnesses shall not be interfered with by this Court. WHEREFORE, the decision of the Court of Appeals dated 31 January 2008 in CAG.R. CR H.C. No. 01663, affirming with modification the Judgment of the Regional Trial Court of Manila, Branch 34, finding appellant Rodolfo Gallo guilty of illegal recruitment in large scale and three (3) counts of estafa is AFFIRMED. SO ORDERED. [G.R. No. 129577-80. February 15, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BULU CHOWDURY, accusedappellant. DECISION PUNO, J.: In November 1995, Bulu Chowdury and Josephine Ong were charged before the Regional Trial Court of Manila with the crime of illegal recruitment in large scale committed as follows: "That sometime between the period from August 1994 to October 1994 in the City of Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, representing themselves to have the capacity to contract, enlist and transport workers for employment abroad, conspiring, confederating and mutually helping one another, did then and there willfully, unlawfully and feloniously recruit the herein complainants: Estrella B. Calleja, Melvin C. Miranda and Aser S. Sasis, individually or as a group for employment in Korea without first obtaining the required license and/or authority from the Philippine Overseas Employment Administration." [1] They were likewise charged with three counts of estafa committed against private complainants.[2] The State Prosecutor, however, later dismissed the estafa charges against Chowdury[3] and filed an amended information indicting only Ong for the offense. [4]

Chowdury was arraigned on April 16, 1996 while Ong remained at large. He pleaded "not guilty" to the charge of illegal recruitment in large scale. [5] Trial ensued. The prosecution presented four witnesses: private complainants Aser Sasis, Estrella Calleja and Melvin Miranda, and Labor Employment Officer Abbelyn Caguitla. Sasis testified that he first met Chowdury in August 1994 when he applied with Craftrade Overseas Developers (Craftrade) for employment as factory worker in South Korea. Chowdury, a consultant of Craftrade, conducted the interview. During the interview, Chowdury informed him about the requirements for employment. He told him to submit his passport, NBI clearance, passport size picture and medical certificate. He also required him to undergo a seminar. He advised him that placement would be on a first-come-first-serve basis and urged him to complete the requirements immediately. Sasis was also charged a processing fee of P25,000.00. Sasis completed all the requirements in September 1994. He also paid a total amount of P16,000.00 to Craftrade as processing fee. All payments were received by Ong for which she issued three receipts. [6] Chowdury then processed his papers and convinced him to complete his payment. [7] Sasis further said that he went to the office of Craftrade three times to follow up his application but he was always told to return some other day. In one of his visits to Craftrades office, he was informed that he would no longer be deployed for employment abroad. This prompted him to withdraw his payment but he could no longer find Chowdury. After two unsuccessful attempts to contact him, he decided to file with the Philippine Overseas Employment Administration (POEA) a case for illegal recruitment against Chowdury. Upon verification with the POEA, he learned that Craftrade's license had already expired and has not been renewed and that Chowdury, in his personal capacity, was not a licensed recruiter.[8] Calleja testified that in June 1994, she applied with Craftrade for employment as factory worker in South Korea. She was interviewed by Chowdury. During the interview, he asked questions regarding her marital status, her age and her province. Toward the end of the interview, Chowdury told her that she would be working in a factory in Korea. He required her to submit her passport, NBI clearance, ID pictures, medical certificate and birth certificate. He also obliged her to attend a seminar on overseas employment. After she submitted all the documentary requirements, Chowdury required her to pay P20,000.00 as placement fee. Calleja made the payment on August 11, 1994 to Ong for which she was issued a receipt.[9] Chowdury assured her that she would be able to leave on the first week of September but it proved to be an empty promise. Calleja was not able to leave despite several follow-ups. Thus, she went to the POEA where she discovered that Craftrade's license had already expired. She tried to withdraw her money from Craftrade to no avail. Calleja filed a complaint for illegal recruitment against Chowdury upon advice of POEA's legal counsel.[10] Miranda testified that in September 1994, his cousin accompanied him to the office of Craftrade in Ermita, Manila and introduced him to Chowdury who presented himself as consultant and interviewer. Chowdury required him to fill out a bio-data sheet before conducting the interview. Chowdury told Miranda during the interview that he would send him to Korea for employment as factory worker. Then he asked him to submit the following documents: passport, passport size picture, NBI clearance and medical certificate. After he complied with the requirements, he was advised to wait for his visa and to pay P25,000.00 as processing fee. He paid the amount of P25,000.00 to Ong who issued receipts therefor.

[11]

Craftrade, however, failed to deploy him. Hence, Miranda filed a complaint with the POEA against Chowdury for illegal recruitment.[12] Labor Employment Officer Abbelyn Caguitla of the Licensing Branch of the POEA testified that she prepared a certification on June 9, 1996 that Chowdury and his co-accused, Ong, were not, in their personal capacities, licensed recruiters nor were they connected with any licensed agency. She nonetheless stated that Craftrade was previously licensed to recruit workers for abroad which expired on December 15, 1993. It applied for renewal of its license but was only granted a temporary license effective December 16, 1993 until September 11, 1994. From September 11, 1994, the POEA granted Craftrade another temporary authority to process the expiring visas of overseas workers who have already been deployed. The POEA suspended Craftrade's temporary license on December 6, 1994. [13] For his defense, Chowdury testified that he worked as interviewer at Craftrade from 1990 until 1994. His primary duty was to interview job applicants for abroad. As a mere employee, he only followed the instructions given by his superiors, Mr. Emmanuel Geslani, the agencys President and General Manager, and Mr. Utkal Chowdury, the agency's Managing Director. Chowdury admitted that he interviewed private complainants on different dates. Their office secretary handed him their bio-data and thereafter he led them to his room where he conducted the interviews. During the interviews, he had with him a form containing the qualifications for the job and he filled out this form based on the applicant's responses to his questions. He then submitted them to Mr. Utkal Chowdury who in turn evaluated his findings. He never received money from the applicants. He resigned from Craftrade on November 12, 1994.[14] Another defense witness, Emelita Masangkay who worked at the Accreditation Branch of the POEA presented a list of the accredited principals of Craftrade Overseas Developers[15] and a list of processed workers of Craftrade Overseas Developers from 1988 to 1994.[16] The trial court found Chowdury guilty beyond reasonable doubt of the crime of illegal recruitment in large scale. It sentenced him to life imprisonment and to pay a fine ofP100,000.00. It further ordered him to pay Aser Sasis the amount of P16,000.00, Estrella Calleja, P20,000.00 and Melvin Miranda, P25,000.00. The dispositive portion of the decision reads: "WHEREFORE, in view of the foregoing considerations, the prosecution having proved the guilt of the accused Bulu Chowdury beyond reasonable doubt of the crime of Illegal Recruitment in large scale, he is hereby sentenced to suffer the penalty of life imprisonment and a fine of P100,000.00 under Art. 39 (b) of the New Labor Code of the Philippines. The accused is ordered to pay the complainants Aser Sasis the amount of P16,000.00; Estrella Calleja the amount of P20,000.00; Melvin Miranda the amount of P25,000.00."[17] Chowdury appealed. The elements of illegal recruitment in large scale are: (1) The accused undertook any recruitment activity defined under Article 13 (b) or any prohibited practice enumerated under Article 34 of the Labor Code;

(2) He did not have the license or authority to lawfully engage in the recruitment and placement of workers; and (3) He committed the same against three or more persons, individually or as a group.[18] The last paragraph of Section 6 of Republic Act (RA) 8042 [19] states who shall be held liable for the offense, thus: "The persons criminally liable for the above offenses are the principals, accomplices and accessories. In case of juridical persons, the officers having control, management or direction of their business shall be liable." The Revised Penal Code which supplements the law on illegal recruitment [20] defines who are the principals, accomplices and accessories. The principals are: (1) those who take a direct part in the execution of the act; (2) those who directly force or induce others to commit it; and (3) those who cooperate in the commission of the offense by another act without which it would not have been accomplished.[21] The accomplices are those persons who may not be considered as principal as defined in Section 17 of the Revised Penal Code but cooperate in the execution of the offense by previous or simultaneous act.[22] The accessories are those who, having knowledge of the commission of the crime, and without having participated therein, either as principals or accomplices, take part subsequent to its commission in any of the following manner: (1) by profiting themselves or assisting the offenders to profit by the effects of the crime; (2) by concealing or destroying the body of the crime, or the effects or instruments thereof, in order to prevent its discovery; and (3) by harboring, concealing, or assisting in the escape of the principal of the crime, provided the accessory acts with abuse of his public functions or whenever the author of the crime is guilty of treason, parricide, murder, or an attempt at the life of the chief executive, or is known to be habitually guilty of some other crime.[23] Citing the second sentence of the last paragraph of Section 6 of RA 8042, accused-appellant contends that he may not be held liable for the offense as he was merely an employee of Craftrade and he only performed the tasks assigned to him by his superiors. He argues that the ones who should be held liable for the offense are the officers having control, management and direction of the agency. As stated in the first sentence of Section 6 of RA 8042, the persons who may be held liable for illegal recruitment are the principals, accomplices and accessories. An employee of a company or corporation engaged in illegal recruitment may be held liable as principal, together with his employer,[24] if it is shown that he actively and consciously participated in illegal recruitment.[25] It has been held that the existence of the corporate entity does not shield from prosecution the corporate agent who knowingly and intentionally causes the corporation to commit a crime. The corporation obviously acts, and can act, only by and through its human agents, and it is their conduct which the law must deter. The employee or agent of a corporation engaged in unlawful business naturally aids and abets in the carrying on of such business and will be prosecuted as principal if, with knowledge of the business, its purpose and effect, he consciously contributes his efforts to its conduct and promotion, however slight his contribution may be.[26] The law of agency, as applied in civil cases, has no application in criminal cases, and no man can escape punishment when he participates in the commission of a crime upon the ground that he simply acted as an agent of any party.[27] The culpability of the employee therefore hinges on his knowledge of the offense and his active participation in its commission. Where it is shown that the employee was merely acting under the direction of his superiors and was unaware that his acts

constituted a crime, he may not be held criminally liable for an act done for and in behalf of his employer.[28] The fundamental issue in this case, therefore, is whether accused-appellant knowingly and intentionally participated in the commission of the crime charged. We find that he did not. Evidence shows that accused-appellant interviewed private complainants in the months of June, August and September in 1994 at Craftrade's office. At that time, he was employed as interviewer of Craftrade which was then operating under a temporary authority given by the POEA pending renewal of its license.[29] The temporary license included the authority to recruit workers.[30] He was convicted based on the fact that he was not registered with the POEA as employee of Craftrade. Neither was he, in his personal capacity, licensed to recruit overseas workers. Section 10 Rule II Book II of the Rules and Regulation Governing Overseas Employment (1991) requires that every change, termination or appointment of officers, representatives and personnel of licensed agencies be registered with the POEA. Agents or representatives appointed by a licensed recruitment agency whose appointments are not previously approved by the POEA are considered "non-licensee " or "non-holder of authority" and therefore not authorized to engage in recruitment activity.[31] Upon examination of the records, however, we find that the prosecution failed to prove that accused-appellant was aware of Craftrade's failure to register his name with the POEA and that he actively engaged in recruitment despite this knowledge. The obligation to register its personnel with the POEA belongs to the officers of the agency. [32] A mere employee of the agency cannot be expected to know the legal requirements for its operation. The evidence at hand shows that accused-appellant carried out his duties as interviewer of Craftrade believing that the agency was duly licensed by the POEA and he, in turn, was duly authorized by his agency to deal with the applicants in its behalf. Accused-appellant in fact confined his actions to his job description. He merely interviewed the applicants and informed them of the requirements for deployment but he never received money from them. Their payments were received by the agency's cashier, Josephine Ong. Furthermore, he performed his tasks under the supervision of its president and managing director. Hence, we hold that the prosecution failed to prove beyond reasonable doubt accused-appellant's conscious and active participation in the commission of the crime of illegal recruitment. His conviction, therefore, is without basis. This is not to say that private complainants are left with no remedy for the wrong committed against them. The Department of Justice may still file a complaint against the officers having control, management or direction of the business of Craftrade Overseas Developers (Craftrade), so long as the offense has not yet prescribed. Illegal recruitment is a crime of economic sabotage which need to be curbed by the strong arm of the law. It is important, however, to stress that the government's action must be directed to the real offenders, those who perpetrate the crime and benefit from it. IN VIEW WHEREOF, the assailed decision of the Regional Trial Court is REVERSED and SET ASIDE. Accused-appellant is hereby ACQUITTED. The Director of the Bureau of Corrections is ordered to RELEASE accused-appellant unless he is being held for some other cause, and to REPORT to this Court compliance with this order within ten (10) days from receipt of this decision. Let a copy of this Decision be furnished the Secretary of the Department of Justice for his information and appropriate action. SO ORDERED.

Davide, Jr., C.J., (Chairman), Kapunan, Pardo, and Ynares-Santiago, JJ., concur. G.R. No. 100641 June 14, 1993 FARLE P. ALMODIEL, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION (FIRST DIVISION), RAYTHEON PHILS., INC., respondents. Apolinario Lomabao, Jr. for petitioner. Vicente A. Cruz, Jr., for private respondent.

NOCON, J.: Subject of this petition for certiorari is the decision dated March 21, 1991 of the National Labor Relations Commission in NLRC Case No. 00-00645-89 which reversed and set aside the Labor Arbiter's decision dated September 27, 1989 and ordered instead the payment of separation pay and financial assistance of P100,000.00. Petitioner imputes grave abuse of discretion on the part of the Commission and prays for the reinstatement of the Labor Arbiter's decision which declared his termination on the ground of redundancy illegal. Petitioner Farle P. Almodiel is a certified public accountant who was hired in October, 1987 as Cost Accounting Manager of respondent Raytheon Philippines, Inc. through a reputable placement firm, John Clements Consultants, Inc. with a starting monthly salary of P18,000.00. Before said employment, he was the accounts executive of Integrated Microelectronics, Inc. for several years. He left his lucrative job therein in view of the promising career offered by Raytheon. He started as a probationary or temporary employee. As Cost Accounting Manager, his major duties were: (1) plan, coordinate and carry out year and physical inventory; (2) formulate and issue out hard copies of Standard Product costing and other cost/pricing analysis if needed and required and (3) set up the written Cost Accounting System for the whole company. After a few months, he was given a regularization increase of P1,600.00 a month. Not long thereafter, his salary was increased to P21,600.00 a month. On August 17, 1988, he recommended and submitted a Cost Accounting/Finance Reorganization, affecting the whole finance group but the same was disapproved by the Controller. However, he was assured by the Controller that should his position or department which was apparently a one-man department with no staff becomes untenable or unable to deliver the needed service due to manpower constraint, he would be given a three (3) year advance notice. In the meantime, the standard cost accounting system was installed and used at the Raytheon plants and subsidiaries worldwide. It was likewise adopted and installed in the Philippine operations. As a consequence, the services of a Cost Accounting Manager allegedly entailed only the submission of periodic reports that would use computerized forms prescribed and designed by the international head office of the Raytheon Company in California, USA.

On January 27, 1989, petitioner was summoned by his immediate boss and in the presence of IRD Manager, Mr. Rolando Estrada, he was told of the abolition of his position on the ground of redundancy. He pleaded with management to defer its action or transfer him to another department, but he was told that the decision of management was final and that the same has been conveyed to the Department of Labor and Employment. Thus, he was constrained to file the complaint for illegal dismissal before the Arbitration Branch of the National Capital Region, NLRC, Department of Labor and Employment. On September 27, 1989, Labor Arbiter Daisy Cauton-Barcelona rendered a decision, the dispositive portion of which reads as follows: WHEREFORE, judgment is hereby rendered declaring that complainant's termination on the ground of redundancy is highly irregular and without legal and factual basis, thus ordering the respondents to reinstate complainant to his former position with full backwages without lost of seniority rights and other benefits. Respondents are further ordered to pay complainant P200,000.00 as moral damages and P20,000.00 as exemplary damages, plus ten percent (10%) of the total award as attorney's fees. 1 Raytheon appealed therefrom on the grounds that the Labor Arbiter committed grave abuse of discretion in denying its rights to dismiss petitioner on the ground of redundancy, in relying on baseless surmises and self-serving assertions of the petitioner that its act was tainted with malice and bad faith and in awarding moral and exemplary damages and attorney's fees. On March 21, 1991, the NLRC reversed the decision and directed Raytheon to pay petitioner the total sum of P100,000.00 as separation pay/financial assistance. The dispositive portion of which is hereby quoted as follows: WHEREFORE, the appealed decision is hereby set aside. In its stead, Order is hereby issued directing respondent to pay complainant the total separation pay/financial assistance of One Hundred Thousand Pesos (P100,000.00). SO ORDERED. 2 From this decision, petitioner filed the instant petition averring that: The public respondent committed grave abuse of discretion amounting to (lack of) or in excess of jurisdiction in declaring as valid and justified the termination of petitioner on the ground of redundancy in the face of clearly established finding that petitioner's termination was tainted with malice, bad faith and irregularity. 3 Termination of an employee's services because of redundancy is governed by Article 283 of the Labor Code which provides as follows: Art. 283. Closure of establishment and reduction of personnel. The employer may also terminate the employment of any employee due to installation of labor-saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, by serving a written notice on the worker and the Department of Labor and Employment at least one (1) month before the

intended date thereof. In case of termination due to installation of laborsaving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least one (1) month pay for every year of service, whichever is higher. In case of retrenchment to prevent losses and in cases of closure or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to at least one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered as one (1) whole year. There is no dispute that petitioner was duly advised, one (1) month before, of the termination of his employment on the ground of redundancy in a written notice by his immediate superior, Mrs. Magdalena B.D. Lopez sometime in the afternoon of January 27, 1989. He was issued a check for P54,863.00 representing separation pay but in view of his refusal to acknowledge the notice and the check, they were sent to him thru registered mail on January 30, 1989. The Department of Labor and Employment was served a copy of the notice of termination of petitioner in accordance with the pertinent provisions of the Labor Code and the implementing rules. The crux of the controversy lies on whether bad faith, malice and irregularity crept in the abolition of petitioner's position of Cost Accounting Manager on the ground of redundancy. Petitioner claims that the functions of his position were absorbed by the Payroll/Mis/Finance Department under the management of Danny Ang Tan Chai, a resident alien without any working permit from the Department of Labor and Employment as required by law. Petitioner relies on the testimony of Raytheon's witness to the effect that corollary functions appertaining to cost accounting were dispersed to other units in the Finance Department. And granting that his department has to be declared redundant, he claims that he should have been the Manager of the Payroll/Mis/Finance Department which handled general accounting, payroll and encoding. As a B. S. Accounting graduate, a CPA with M.B.A. units, 21 years of work experience, and a natural born Filipino, he claims that he is better qualified than Ang Tan Chai, a B.S. Industrial Engineer, hired merely as a Systems Analyst Programmer or its equivalent in early 1987, promoted as MIS Manager only during the middle part of 1988 and a resident alien. On the other hand, Raytheon insists that petitioner's functions as Cost Accounting Manager had not been absorbed by Ang Tan Chai, a permanent resident born in this country. It claims to have established below that Ang Tan Chai did not displace petitioner or absorb his functions and duties as they were occupying entirely different and distinct positions requiring different sets of expertise or qualifications and discharging functions altogether different and foreign from that of petitioner's abolished position. Raytheon debunks petitioner's reliance on the testimony of Mr. Estrada saying that the same witness testified under oath that the functions of the Cost Accounting Manager had been completely dispensed with and the position itself had been totally abolished. Whether petitioner's functions as Cost Accounting Manager have been dispensed with or merely absorbed by another is however immaterial. Thus, notwithstanding the dearth of evidence on the said question, a resolution of this case can be arrived at without delving into this matter. For even conceding that the functions of petitioner's position were merely transferred, no malice or bad faith can be imputed from said act. A survey of existing case law will disclose that in Wiltshire File Co., Inc. v. NLRC, 4 the position of Sales Manager was abolished on the ground of redundancy as the duties previously discharged by the Sales Manager simply added to the duties of the General Manager to whom the Sales Manager used to report. In adjudging said termination as legal, this Court said that redundancy, for purposes of our Labor Code, exists where the services of an employee are in excess of what

is reasonably demanded by the actual requirements of the enterprise. The characterization of an employee's services as no longer necessary or sustainable, and therefore, properly terminable, was an exercise of business judgment on the part of the employer. The wisdom or soundness of such characterization or decision was not subject to discretionary review on the part of the Labor Arbiter nor of the NLRC so long, of course, as violation of law or merely arbitrary and malicious action is not shown. In the case of International Macleod, Inc. v. Intermediate Appellate Court , 5 this Court also considered the position of Government Relations Officer to have become redundant in view of the appointment of the International Heavy Equipment Corporation as the company's dealer with the government. It held therein that the determination of the need for the phasing out of a department as a labor and cost saving device because it was no longer economical to retain said services is a management prerogative and the courts will not interfere with the exercise thereof as long as no abuse of discretion or merely arbitrary or malicious action on the part of management is shown. In the same vein, this Court ruled in Bondoc v. People's Bank and Trust Co., 6 that the bank's board of directors possessed the power to remove a department manager whose position depended on the retention of the trust and confidence of management and whether there was need for his services. Although some vindictive motivation might have impelled the abolition of his position, this Court expounded that it is undeniable that the bank's board of directors possessed the power to remove him and to determine whether the interest of the bank justified the existence of his department. Indeed, an employer has no legal obligation to keep more employees than are necessary for the operation of its business. Petitioner does not dispute the fact that a cost accounting system was installed and used at Raytheon subsidiaries and plants worldwide; and that the functions of his position involve the submission of periodic reports utilizing computerized forms designed and prescribed by the head office with the installation of said accounting system. Petitioner attempts to controvert these realities by alleging that some of the functions of his position were still indispensable and were actually dispersed to another department. What these indispensable functions that were dispersed, he failed however, to specify and point out. Besides, the fact that the functions of a position were simply added to the duties of another does not affect the legitimacy of the employer's right to abolish a position when done in the normal exercise of its prerogative to adopt sound business practices in the management of its affairs. Considering further that petitioner herein held a position which was definitely managerial in character, Raytheon had a broad latitude of discretion in abolishing his position. An employer has a much wider discretion in terminating employment relationship of managerial personnel compared to rank and file employees. 7 The reason obviously is that officers in such key positions perform not only functions which by nature require the employer's full trust and confidence but also functions that spell the success or failure of an enterprise. Likewise destitute of merit is petitioner's imputation of unlawful discrimination when Raytheon caused corollary functions appertaining to cost accounting to be absorbed by Danny Ang Tan Chai, a resident alien without a working permit. Article 40 of the Labor Code which requires employment permit refers to non-resident aliens. The employment permit is required for entry into the country for employment purposes and is issued after determination of the non-availability of a person in the Philippines who is competent, able and willing at the time of application to perform the services for which the alien is desired. Since Ang Tan Chai is a resident alien, he does not fall within the ambit of the provision.

Petitioner also assails Raytheon's choice of Ang Tan Chai to head the Payroll/Mis/Finance Department, claiming that he is better qualified for the position. It should be noted, however, that Ang Tan Chai was promoted to the position during the middle part of 1988 or before the abolition of petitioner's position in early 1989. Besides the fact that Ang Tan Chai's promotion thereto is a settled matter, it has been consistently held that an objection founded on the ground that one has better credentials over the appointee is frowned upon so long as the latter possesses the minimum qualifications for the position. In the case at bar, since petitioner does not allege that Ang Tan Chai does not qualify for the position, the Court cannot substitute its discretion and judgment for that which is clearly and exclusively management prerogative. To do so would take away from the employer what rightly belongs to him as aptly explained in National Federation of Labor Unions v. NLRC : 8 It is a well-settled rule that labor laws do not authorize interference with the employer's judgment in the conduct of his business. The determination of the qualification and fitness of workers for hiring and firing, promotion or reassignment are exclusive prerogatives of management. The Labor Code and its implementing Rules do not vest in the Labor Arbiters nor in the different Divisions of the NLRC (nor in the courts) managerial authority. The employer is free to determine, using his own discretion and business judgment, all elements of employment, "from hiring to firing" except in cases of unlawful discrimination or those which may be provided by law. There is none in the instant case. Finding no grave abuse of discretion on the part of the National Labor Relations Commission in reversing and annulling the decision of the Labor Arbiter and that on the contrary, the termination of petitioner's employment was anchored on a valid and authorized cause under Article 283 of the Labor Code, the instant petition for certiorarimust fail. SO ORDERED. Narvasa, C.J., Padilla and Regalado, JJ., concur