Jose Ysrael C.

Cordova Labor Review

G.R. No. 125044 July 13, 1998 IMELDA DARVIN, petitioner, vs. HON. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. Facts: Imelda Darvin offered her services to one Macaria Toledo to assist her to secure a passport, visa, and airline tickets to US. Macaria Toledo was introduced by her friends Florencio Jake Rivera Jr. and Leonila Rivera. She claims that she did not promise any employment in the U.S. to Toledo. She, however, admits receiving the amount of P150,000.00 from the latter but contends that it was used for necessary expenses of an intended trip to the United States of Toledo and her friend. She likewise testified that she was able to secure Toledo's passport and even set up a date for an interview with the US embassy. Accused alleged that she was not engaged in illegal recruitment but merely acted as a travel agent in assisting individuals to secure passports and visa. Despite of her defense, Bacoor, Cavite RTC ruled that accused-appellant guilty of the crime of simple illegal recruitment but acquitted her of the crime of estafa. Issue: Law: Is the accused indeed engaged in recruitment activities, as defined under the Labor Code? Art. 13 of the Labor Code, as amended, provides the definition of recruitment and placement as: . . .; b) 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: Provided, that any person or entity which, in any manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement. On the other hand, Article 38 of the Labor Code provides: a) Any recruitment activities, including the prohibited practices enumerated under Article 34 of this Code, to be undertaken by non-licensees or non-holders of authority shall be deemed illegal and punishable under Article 39 of this Code. The Ministry of Labor and Employment or any law enforcement officer may initiate complaints under this Article.

Ruling: The Court can hardly rely on the bare allegations of private respondent that she was offered by accused of employment abroad, nor on mere presumptions and conjectures, to convict the latter. No sufficient evidence was shown to sustain the conviction, as the burden of proof lies with the prosecution to establish that accusedappellant indeed engaged in recruitment activities, thus committing the crime of illegal recruitment. In criminal cases, the burden is on the prosecution to prove, beyond reasonable doubt, the essential elements of the offense with which the accused is charged; and if the proof fails to establish any of the essential elements necessary to constitute a crime, the defendant is entitled to an acquittal. Proof beyond reasonable doubt does not mean such a degree of proof as, excluding the possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces a conviction in an unprejudiced mind. Opinion: Sufficient evidence must be shown to sustain the conviction in the crime of illegal recruitment. This is to prove that the accused indeed engaged in recruitment activities. G.R. No. 184058 March 10, 2010

PEOPLE OF THE PHILIPPINES, Appellee, vs. MELISSA CHUA, Appellant. Facts: That sometime during the month of September, 2002, in the City of Manila, Philippines, the said accused, conspiring and confederating together and mutually helping each other, representing themselves to have the capacity to contract, enlist and transport Filipino workers for employment abroad, did then and there willfully, unlawfully and knowingly for a fee, recruit and promise employment or job placement abroad to Erik de Guia Tan, Marilyn O. Macaranas, Napoleon H. Yu Jr., Harry James P. King and Roberto C. Angeles for overseas employment abroad without first having secured the required license from the Department of Labor and Employment as required by law, and charge or accept directly from Erik Tan 73,000.00, Marilyn Macaranas 83,000.00, Napoleon Yu 23,000.00, Harry James King 23,000.00, Roberto Angeles 23,000.00.

Jose Ysrael C. Cordova Labor Review

For purposes of their deployment, which amounts are in excess of or greater than that specified in the schedule of allowable fees as prescribed by the POEA, and without valid reasons and without the fault of said complainants, failed to actually deploy them and failed to reimburse expenses incurred in connection with their documentation and processing for purposes of their deployment. Appellant denied the charges. Claiming having worked as a temporary cashier from January to October, 2002 at the office of Golden Gate, owned by one Marilyn Calueng, she maintained that Golden Gate was a licensed recruitment agency and that Josie, who is her godmother, was an agent. The accused was convicted of a large scale illegal recruitment and estafa. The Court of Appeals affirmed the decision of the RTC. Issue: Is the accused may be cited for illegal recruitment and estafa even if she was mere a temporary cashier of the company? The term "recruitment and placement" is defined under Article 13(b) of the Labor Code of the Philippines as follows: (b) "Recruitment and placement" refers to 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. Provided, That any person or entity which, in any manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement. On the other hand, Article 38, paragraph (a) of the Labor Code, as amended, under which appellant was charged, provides: Art. 38. Illegal Recruitment. (a) Any recruitment activities, including the prohibited practices enumerated under Article 34 of this Code, to be undertaken by non-licensees or non-holders of authority shall be deemed illegal and punishable under Article 39 of this Code. The Ministry of Labor and Employment or any law enforcement officer may initiate complaints under this Article. (b) Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage and shall be penalized in accordance with Article 39 hereof. Ruling: Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme defined under the first paragraph hereof. Illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group. From the foregoing provisions, it is clear that any recruitment activities to be undertaken by non-licensee or non-holder of contracts, or as in the present case, an agency with an expired license, shall be deemed illegal and punishable under Article 39 of the Labor Code of the Philippines. And illegal recruitment is deemed committed in large scale if committed against three or more persons individually or as a group. Thus for illegal recruitment in large scale to prosper, the prosecution has to prove three essential elements, to wit: (1) the accused undertook a recruitment activity under Article 13(b) or any prohibited practice under Article 34 of the Labor Code; (2) the accused did not have the license or the authority to lawfully engage in the recruitment and placement of workers; and (3) the accused committed such illegal activity against three or more persons individually or as a group. Opinion: Even if the accused was a mere temporary cashier of the company, that did not make her any less an employee to be held liable for illegal recruitment as principal by direct participation, together with the employer, provided that she actively and consciously participated in the recruitment process. G.R. No. 181475 April 7, 2009

Law:

PEOPLE OF THE PHILIPPINES, Appellee, vs. LARRY "LAURO" DOMINGO, Appellant. Facts: That in or about the month of November 1999 to January 20, 2000, in the Municipality of Malolos, province of Bulacan, Philippines, the above-named accused, being a non-licensee or non-holder of authority from the Department of Labor and Employment to recruit and/or place workers under local or overseas employment, did then and there willfully and feloniously, with false pretenses, undertake illegal recruitment, placement or deployment of Wilson A. Manzo, Florentino M. Ondra, Feliciano S. del Rosario, Leo J. Cruz, Norberto S.

Jose Ysrael C. Cordova Labor Review

Surio, Genaro B. Rodriguez, Mariano Aguilar, Dionisio Aguilar, Mario J. Sorel, Marcia A. dela Cruz, Edgardo P. Jumaquio, Midel Clara Buensuceso, Remigio S. Carreon, Jr., Romeo Manasala, Magno D. Balatbat, Jose Armen F. Sunga, Rogelio M. Cambay, Junior Balisbis, Ma. Leah Vivas, Simeon S. Cabigao, Edcil P. Mariano, Juanito C. Bartolome, Angelito R. Acevedo, Godofredo P. Samson, Eugenio del Rosario y Tolentino, William B. Bautista, Rodolfo M. Marcelino, Roberto B. Bohol, Felipe H. Cunanan, Carlos P. Dechavez, Carlos J. Cruz, Reynaldo C. Chico, Renato D. Jumaquio, Narciso F. Sunga, Enrico R. Espiritu, Leonardo C. Sunga, Jr., and Iglecerio H. Perez. This offense involved economic sabotage, as it was committed in large scale. Private complainant Cabigao later recanted this testimony, per his affidavit dated March 3, 2003. Testifying anew, this time for the defense, he averred that the one who actually recruited him and his co-complainants and received their money was Danilo Gimeno, and they only agreed among themselves to file a case against appellant because Gimeno was nowhere to be found. Appellant, denying all the accusations against him, claimed as follows: He was a driver hired by the real recruiter, Gimeno, whom he met inside the Victory Liner Bus bound for Manila in September, 2000. It was Gimeno who undertakes recruitment activities in Dakila, Malolos, Bulacan at the residence of Eddie Simbayan, and that the other cases for illegal recruitment filed against him before other courts have all been dismissed. Appellant likewise presented as witnesses private complainants Enrico Espiritu and Roberto Castillo who corroborated his claim that it was Gimeno who actually recruited them, and that the filing of the complaint against appellant was a desperate attempt on their part to get even because Gimeno could not be located. The Regional Trial Court found the accused Domingo guilty of Illegal recruitment (Large Scale ). Issue: Law: Is the accused may be cited for illegal recruitment and estafa even if he was mere driver only? The term "recruitment and placement" is defined under Article 13(b) of the Labor Code of the Philippines as follows: (b) "Recruitment and placement" refers to 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. Provided, That any person or entity which, in any manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement. (Emphasis supplied) On the other hand, Article 38, paragraph (a) of the Labor Code, as amended, under which the accused stands charged, provides: Art. 38. Illegal Recruitment. - (a) Any recruitment activities, including the prohibited practices enumerated under Article 34 of this Code, to be undertaken by non-licensees or non-holders of authority shall be deemed illegal and punishable under Article 39 of this Code. The Ministry of Labor and Employment or any law enforcement officer may initiate complaints under this Article.1avvphi1 (b) Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage and shall be penalized in accordance with Article 39 hereof. Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme defined under the first paragraph hereof. Illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group. Ruling: From the foregoing provisions, it is clear that any recruitment activities to be undertaken by non-licensee or non-holder of authority shall be deemed illegal and punishable under Article 39 of the Labor Code of the Philippines. Illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group. To prove illegal recruitment in large scale, the prosecution must prove three essential elements, to wit: (1) the person charged undertook a recruitment activity under Article 13(b) or any prohibited practice under Article 34 of the Labor Code; (2) he/she did not have the license or the authority to lawfully engage in the recruitment and placement of workers; and (3) he/she committed the prohibited practice against three or more persons individually or as a group. The Court finds that the prosecution ably discharged its onus of proving the guilt beyond reasonable doubt of appellant of the crimes charged.

Jose Ysrael C. Cordova Labor Review

That no receipt or document in which appellant acknowledged the receipt of money for the promised jobs was adduced in evidence does not free him of liability. For even if at the time appellant was promising employment no cash was given to him, he is still considered as having been engaged in recruitment activities, since Article 13(b) of the Labor Code states that the act of recruitment may be for profit or not. It suffices that appellant promised or offered employment for a fee to the complaining witnesses to warrant his conviction for illegal recruitment. Opinion: The Recantation of other witness will not affect the testimony of other witness provided that other witness credibility had not been impaired. G.R. No. 187730 June 29, 2010

PEOPLE OF THE PHILIPPINES, Petitioner, vs. RODOLFO GALLO y GADOT, Accused-Appellant, FIDES PACARDO y JUNGCO and PILAR MANTA y DUNGO, Accused. Facts: On May 22, 2001, Dela Caza was introduced by Eleanor Panuncio to accused-appellant Gallo, Pacardo, Manta, Mardeolyn, Lulu Mendanes, Yeo Sin Ung and another Korean national at the office of MPM International Recruitment and Promotion Agency located in Malate, Manila. Dela Caza was told that Mardeolyn was the President of MPM Agency, while Nelmar Martir was one of the incorporators. Also, that Marcelino Martir, Norman Martir, Nelson Martir and Ma. Cecilia Ramos were its board members. Lulu Mendanes acted as the cashier and accountant, while Pacardo acted as the agencys employee who was in charge of the records of the applicants. Manta, on the other hand, was also an employee who was tasked to deliver documents to the Korean embassy. Accused-appellant Gallo then introduced himself as a relative of Mardeolyn and informed Dela Caza that the agency was able to send many workers abroad. Together with Pacardo and Manta, he also told Dela Caza about the placement fee of One Hundred Fifty Thousand Pesos (PhP 150,000) with a down payment of Forty-Five Thousand Pesos (PhP 45,000) and the balance to be paid through salary deduction. Dela Caza, together with the other applicants, were briefed by Mardeolyn about the processing of their application papers for job placement in Korea as a factory worker and their possible salary. Accused Yeo Sin Ung also gave a briefing about the business and what to expect from the company and the salary. With accused-appellants assurance that many workers have been sent abroad, as well as the presence of the two (2) Korean nationals and upon being shown the visas procured for the deployed workers, Dela Caza was convinced to part with his money. Thus, on May 29, 2001, he paid Forty-Five Thousand Pesos (PhP 45,000) to MPM Agency through accused-appellant Gallo who, while in the presence of Pacardo, Manta and Mardeolyn, issued and signed Official Receipt No. 401. Two (2) weeks after paying MPM Agency, Dela Caza went back to the agencys office in Malate, Manila only to discover that the office had moved to a new location at Batangas Street, Brgy. San Isidro, Makati. He proceeded to the new address and found out that the agency was renamed to New Filipino Manpower Development & Services, Inc. At the new office, he talked to Pacardo, Manta, Mardeolyn, Lulu Mendanes and accused-appellant Gallo. He was informed that the transfer was done for easy accessibility to clients and for the purpose of changing the name of the agency. Dela Caza decided to withdraw his application and recover the amount he paid but Mardeolyn, Pacardo, Manta and Lulu Mendanes talked him out from pursuing his decision. On the other hand, accused-appellant Gallo even denied any knowledge about the money. After two (2) more months of waiting in vain to be deployed, Dela Caza and the other applicants decided to take action. The first attempt was unsuccessful because the agency again moved to another place. However, with the help of the Office of Ambassador Seeres and the Western Police District, they were able to locate the new address at 500 Prudential Building, Carriedo, Manila. The agency explained that it had to move in order to separate those who are applying as entertainers from those applying as factory workers. Accused-appellant Gallo, together with Pacardo and Manta, were then arrested. For his defense, accused-appellant denied having any part in the recruitment of Dela Caza. In fact, he testified that he also applied with MPM Agency for deployment to Korea as a factory worker. According to him, he gave his application directly with Mardeolyn because she was his town mate and he was allowed to pay only Ten Thousand Pesos (PhP 10,000) as processing fee. Further, in order to facilitate the processing of his papers, he agreed to perform some tasks for the agency, such as taking photographs of the visa and passport of applicants, running errands and performing such other tasks assigned to him, without salary except for some

Jose Ysrael C. Cordova Labor Review

allowance. He said that he only saw Dela Caza one or twice at the agencys office when he applied for work abroad. Lastly, that he was also promised deployment abroad but it never materialized. Accused-appellant avers that he cannot be held criminally liable for illegal recruitment because he was neither an officer nor an employee of the recruitment agency. He alleges that the trial court erred in adopting the asseveration of the private complainant that he was indeed an employee because such was not duly supported by competent evidence. According to him, even assuming that he was an employee, such cannot warrant his outright conviction sans evidence that he acted in conspiracy with the officers of the agency. On March 15, 2007, the RTC rendered its Decision convicting the accused of syndicated illegal recruitment and estafa. Issue: Law: Is the court correct in convicting the accused of syndicated illegal recruitment and estafa? To commit syndicated illegal recruitment, three elements must be established: (1) the offender undertakes either any activity within the meaning of "recruitment and placement" defined under Article 13(b), or any of the prohibited practices enumerated under Art. 34 of the Labor Code; (2) he has no valid license or authority required by law to enable one to lawfully engage in recruitment and placement of workers; and (3) the illegal recruitment is committed by a group of three (3) or more persons conspiring or confederating with one another. When illegal recruitment is committed by a syndicate or in large scale, i.e., if it is committed against three (3) or more persons individually or as a group, it is considered an offense involving economic sabotage. Under Art. 13(b) of the Labor Code, "recruitment and placement" refers to "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". Even with a license, however, illegal recruitment could still be committed under Section 6 of Republic Act No. 8042 ("R.A. 8042"), otherwise known as the Migrants and Overseas Filipinos Act of 1995, viz: 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 non-holder who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. It shall, likewise, include the following act, whether committed by any person, whether a nonlicensee, non-holder, licensee or holder of authority: (a) To charge or accept directly or indirectly any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor and Employment, or to make a worker pay any amount greater than that actually received by him as a loan or advance; xxxx (l) Failure to actually deploy without valid reason as determined by the Department of Labor and Employment; and (m) Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment and processing for purposes of deployment, in cases where the deployment does not actually take place without the workers fault. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage.

Ruling: The court believes that the prosecution was able to establish the elements of the offense sufficiently. The evidence readily reveals that MPM Agency was never licensed by the POEA to recruit workers for overseas employment. Opinion: In establishing conspiracy, it is not essential that there be actual proof that all the conspirators took a direct part in every act. It is sufficient that they acted in concert pursuant to the same objective.

G.R. No. 170834

August 29, 2008

Jose Ysrael C. Cordova Labor Review

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO NOGRA, accused-appellant. Facts: Sometime in December 1996, Renato Alden went to Loran to apply for a job as hotel worker for Saipan. He was interviewed by appellant, who required Alden to submit an NBI clearance and medical certificate and to pay the placement fee. Alden paid the amount of P31,000.00. The additional amount of P4,000.00 was to be paid prior to his departure to Saipan. Appellant promised Alden that he would leave within a period of three to four months. After one year of waiting Alden was not able to leave. Alden filed a complaint with the NBI when he was not able to recover the amount and could no longer talk with appellant. On April 18, 1997, Teofila Lualhati applied for employment as hotel worker for Saipan with Loran. Appellant required her to submit an NBI clearance and medical certificate and to pay the processing fee in the amount of P35,000.00 so she could leave immediately. She paid the amount of P35,000.00 to Loran's secretary in the presence of appellant. She was promised that within 120 days or 4 months she would be able to leave. Despite repeated follow-ups, Lualhati was unable to work in Saipan. She demanded the refund of the processing fee. When the amount was not returned to her, she filed a complaint with the NBI. Sometime in April 1998, Filipina Mendoza went to Loran to apply for employment as hotel worker. She paid the amount of P35,000.00 as placement fee. When she was not able to work abroad, she went to Loran and sought the return of P35,000.00 from appellant. Sometime in October 1997, Kerwin Donacao went to Loran to apply for employment as purchaser in Saipan. He was required to submit NBI clearance, police clearance, previous employment certificate and his passport. He paid the placement fee ofP35,000.00. After paying the amount, he was told to wait for two to three months. When he was not able to leave for Saipan, he demanded the return of the placement fee, which was not refunded. During the first week of November 1997, Annelyn Sarmiento and her husband, Oliver Sarmiento, applied for overseas employment. For the application of Oliver Sarmiento, they submitted his medical certificate and certification of previous employment. They were also made to pay the amount of P27,000.00 as processing fee. Oliver Sarmiento was promised that within 1 month, he would be able to leave. Initially, Oliver Sarmiento was told that allegedly his visa was yet to be obtained. When he was not able to leave and what he paid was not refunded, he filed a complaint with the NBI. Sometime in May 1997, Fe Zaballa applied for overseas employment in Saipan with. She was required to submit her medical certificate, original copy of her birth certificate, NBI clearance and police clearance. She was also required to pay the amount ofP35,000.00 as placement fee. When she could not be deployed, she sought to recover the amount she paid, which was not returned. On the other hand, appellant presented the following evidence: The defense presented of Antonio Nogra and the agency's secretary and cashier, Maritess Mesina. From their testimonies it was established that LORAN INTERNATIONAL OVERSEAS RECRUITMENT CO., LTD., was owned by accused Lorna Orciga and Japanese national Kataru. Sometime in July 1994, Antonio Nogra read from outside the agency's main office at Libertad, Mandaluyong City that it was in need of a liaison officer. He applied for the position. The part-owner and co-accused, Lorna Orciga, hired him instead as Operations Manager as the agency was then still in the process of completing the list of personnel to be submitted to the POEA. Nogra started working with LORAN in October 1994. In 1995, he was transferred to Naga City when the agency opened a branch office thereat. Although he was designated as the Operations Manager, Nogra was a mere employee of the agency. He was receiving a monthly salary of P5,000.00 and additional P2,000.00 monthly meal allowance. He was in-charge of the advertisement of the company. He also drove for the company. He fetched from the airport the agency's visitors and guests and drove them to hotels and other places. Although part-owner Lorna Orciga was stationed in Manila, she, however, actually remained in control of the branch office in Naga City. She conducted the final interview of the applicants and transacted with the foreign employers. She also controlled the financial matters and assessment fees of the agency in Naga City. The placement and processing fees collected by the agency in Naga City were all deposited in the bank account of Lorna Orciga and not a single centavo went to the benefit of Nogra. On March 26, 2003, the RTC rendered Judgment finding appellant guilty beyond reasonable doubt of the crime charged.

Jose Ysrael C. Cordova Labor Review

Issue: Is the accused may be cited for illegal recruitment and estafa even if he was mere employee of the company only? R.A. No. 8042 broadened the concept of illegal recruitment under the Labor Code and provided stiffer penalties, especially those that constitute economic sabotage, i.e.,Illegal Recruitment in Large Scale and Illegal Recruitment Committed by a Syndicate. Section 6 of R.A. No. 8042 defined when recruitment is illegal: 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 non-holder who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. It shall likewise include the following acts, whether committed by any person, whether a nonlicensee, non-holder, licensee or holder of authority: xxxx (l) Failure to actually deploy without valid reason as determined by the Department of Labor and Employment; and (m) Failure to reimburse expenses incurred by the workers in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the worker's fault. Illegal recruitment when committed by a syndicate or in large scale shall be considered as offense involving economic sabotage. Illegal recruitment is deemed committed by a syndicate 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. 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. Ruling: International Overseas Recruitment Co., Ltd. is a duly licensed recruitment agency with authority to establish a branch office. However, under R.A. No. 8042, even a licensee or holder of authority can be held liable for illegal recruitment, should he commit or omit to do any of the acts enumerated in Section 6. Appellant was charged with illegal recruitment in large scale under Section 6 (l) and (m) of R.A. No. 8042. Section 6 (l) refers to the failure to actually deploy without valid reason, as determined by the Department of Labor and Employment (DOLE). Section 6 (m) involves the failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases in which the deployment does not actually take place without the workers fault. A thorough scrutiny of the prosecution's evidence reveals that it failed to prove appellant's liability under Section 6 (l) of R.A. No. 8042. The law requires not only that the failure to deploy be without valid reason "as determined by the Department of Labor and Employment." The law envisions that there be independent evidence from the DOLE to establish the reason for non-deployment, such as the absence of a proper job order. No document from the DOLE was presented in the present case to establish the reason for the accused's failure to actually deploy private complainants. Thus, appellant cannot be held liable under Section 6 (l) of R.A. No. 8042. Opinion: Being an employee is not a valid defense since employees who have knowledge and active participation in the recruitment activities may be criminally liable for illegal recruitment activities G.R. No. 183099 February 3, 2010

Law:

PEOPLE OF THE PHILIPPINES, Appellee, vs. RACHELLE BALAGAN and HERMINIA AVILA, Appellants. Facts: Fernandez testified that sometime in February 2003, he together with a friend who knows Rosabel Balagan, mother of Rachel, went to EGI Building located at Gil Puyat Street, Pasay City purposely to apply for work abroad. Once in the said office, he was able to talk to Rosabel, Rachel Herminia and some other applicants. He

Jose Ysrael C. Cordova Labor Review

knows that Rachelle and Herminia were clerk and secretary, respectively, at the said office and they entice people that they could send workers abroad. The accused asked him if he was really interested in applying for work and when he answered in the affirmative, Rosabel told him to submit his passport, ID pictures and a "bank account" of P500.00. After he had submitted the requirements, Rosabel told him that the amount of P150,000.00 is needed for deployment to Ireland and he will be able to leave by 28 March 2003. Rachel and Herminia affirmed to him the statements of Rosabel. On 21 March 2003, he gave P37,000.00 to Rosabel and on the following day additional P20,000.00, or a total of P57,000.00 out of the P150,000.00 asked by the accused. He was supposed to give the money personally to Rosabel but the latter told him to hand the same to Herminia who then issued official receipts nos. 263 and 264 to him. The receipts were signed by Rosabel. He and the other complainants whom he got acquainted with were not able to leave the country on 28 March 2003. He then asked Rosabel to return the money to him but the latter refused to do so. When he later on went to the POEA he learned that the accused are not licensed to recruit workers for abroad. Herminia denied that she has anything to do with the cases filed by Fernandez, much less with receipt for the total amount of P57,000.00 which were signed by Rosabel and that she was connected with Rosabel Travel Consultancy. She alleged that she and her husband Edwin were also applicants at Rosabel Travel Consultancy as evidenced by an official receipt issued by Rosabel which shows that they paid said office for their travel to Australia. To further support her claim, she also presented her passport. She further testified that she met Fernandez at the boarding house and often saw him when the latter was following up his application at the agency; that she was included as an accused so that Fernandez could use her in going after Rosabel who at that time was not yet arrested; and since she was then living in the boarding house of Rosabel, Fernandez suspected that she might know where Rosabel was hiding. The court found the accused guilty of Syndicated Illegal Recruitment and Estafa. Issue: Law: Is the lower correct in convicting the accused guilty of Syndicated Illegal Recruitment and Estafa? In the case for Syndicated Illegal Recruitment, the appellate court credited the position of the Office of the Solicitor General that the prosecution failed to establish that the illegal recruitment was committed by a syndicate. It instead found appellants culpable of Simple Illegal Recruitment.

Ruling: 1) In Criminal Case No. 03-2683, appellants Rachelle Balagan and Herminia Avila are found GUILTY beyond reasonable doubt of the crime of Simple Illegal Recruitment only, and are each sentenced to suffer a prison term of six (6) years and one (1) day, as minimum, to twelve (12) years, as maximum, and to pay a fine of P200,000.00 (2) In Criminal Case No. 03-2684, appellants Rachelle Balagan and Herminia Avila are found GUILTY beyond reasonable doubt of the crime of Estafa and are each sentenced to suffer a prison term of four (4) years and two (2) months of prision correccional, as minimum, to nine (9) years and one (1) day of prision mayor, as maximum and is ORDERED to indemnify Michael O. Fernandez in the amount of Fifty Thousand Pesos (Php57,000.00) . Opinion: Sufficient evidence must be shown to sustain the conviction in the crime of illegal recruitment. This is to prove that the accused indeed engaged in recruitment activities. G.R. No. 108107 June 19, 1997 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SUSAN PANTALEON, a.k.a. SUSAN FLORES, accused-appellant. Facts: Ricardo Rosita, with his wife met appellant at the Jollibee branch in Paco, Manila because he wanted to get a job in Japan. Ricardo came to know of appellant through the latter's sister-in-law, whom appellant was able to send to Japan. Appellant asked Ricardo for P75,000.00 for the plane ticket to Japan via Korea, and for the facilitation of other papers and documents. On March 13, 1991, Ricardo paid appellant P60,000.00 at his house in Paco. It was their understanding that the balance of US$500 would be given by Ricardo to the person who would accompany him to Japan. On April 4, 1991, using the name of Pedro Lorzano in his passport, Ricardo left for Korea aboard Korean Airlines. In Korea, he stayed at the hotel indicated in the calling card given to him by appellant. He called appellant and was told to wait for the person who would take him to Saitama, Japan. A certain Lulu Geronimo

Jose Ysrael C. Cordova Labor Review

arrived in the afternoon of April 14, 1991 and told him that she needed to arrange some documents for their departure to Japan. The next day Geronimo came back to the hotel and told him they were leaving for Japan at 5:00 o'clock the following morning. However, while trying to get a boarding pass, they were apprehended by Korean immigration officers and his passport was discovered to be fake. During the investigation at the immigration section, Ricardo saw several other persons also recruited by appellant. Nonito Abadillos, Ricardo's brother-in-law, also wanted to work as a factory worker in Saitama, Japan. On March 20, 1991, appellant came to their house in Paco, Manila and Ricardo introduced her to Nonito as a recruiter. He was convinced to go to Japan as he was told that he would be receiving a salary of 180,000 yen with free board and lodging. He paid the amount of P75,000 for his passport, ticket and other documents. His route was via Saipan. Leandro Rosita, Nonito's brother-in-law, likewise was recruited to work in Japan as a factory worker. He was asked to pay P75,000.00 for his passport, tickets and other documents. On April 15, 1991, he paid P7,000.00 and on April 16, 1991, he paid appellant P20,000.00. On April 17, 1991, he paid an additional amount of P2,000.00. All payments were duly receipted by appellant. Nonito and Leandro (who used the surname Abadillos) left for Saipan on April 18, 1991 aboard Continental Airlines, together with George Samin and Kevin Kimbalita. The agreement was that appellant would send them the ticket for Japan in Saipan. They stayed in a hotel owned by a Filipino instead of free lodging in barracks as appellant had promised. When twenty seven days had passed and no plane tickets to Japan arrived for them in Saipan, they decided to return to the Philippines. Issue: Law: Are the accused guilty of Illegal Recruitment? Illegal recruitment is defined in Article 38 of the Labor Code, as amended as follows: Art. 38. Illegal Recruitment. (a) Any recruitment activities, including the prohibited practices enumerated under Article 34 of this Code, to be undertaken by non-licensees or non-holders of authority shall be deemed illegal and punishable under Article 39 of this Code. The Ministry of Labor and Employment or any law enforcement officer may initiate complaints under this Article. (b) Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage and shall be penalized in accordance with Article 39 hereof. Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme defined under the first paragraph hereof. Illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group. Article 13(b) of the same 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: Provided, that any person or entity which, in any manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement." Ruling: There is no question that appellant committed large scale illegal recruitment as she recruited at least three persons, giving them the impression that she had the capability of sending them abroad. The fact that no documents evidencing the recruitment activities were presented by the prosecution only strengthens, not weakens, its case against appellant. This is because only a legitimate recruitment agency would have asked the complainants to sign employment contracts, health certifications and applications for employment. Appellant took advantage of her victims' gullibility in not knowing that the above documents were necessary for a valid overseas placement as the latter believed that all they had to do to obtain employment in Japan was to pay a certain amount to appellant and everything would be fixed. From the large amounts appellant charged, it is obvious that those were to be used, not just for plane fare, but also supposedly as placement fees. Certainly, a plane ticket to Japan will not cost P75,000.00, especially not in 1991 when these events transpired. In fact, even at present-day prices, the said amount could already cover plane fare to Europe, the U.S. and back to the Philippines. Opinion: To prove illegal recruitment, only two elements need be shown: (1) the person charged with the crime must have undertaken recruitment activities; and (2) the said person does not have a license or authority to do so. G.R. No. 120353 February 12, 1998

Jose Ysrael C. Cordova Labor Review

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FLOR N. LAUREL, accused-appellant. Facts: From 19 October 1991 to 25 May 1992 accused-appellant Flor N. Laurel promised employment abroad for a fee to complaining witnesses Ricardo San Felipe, Rosauro San Felipe, Juanito Cudal and Cenen Tambongco, Jr. However, after receiving P12,000.00 from Tambongco, Jr., P11,000.00 from each of the San Felipe brothers and P6,000.00 from Cudal, Laurel reneged on her promises and went into hiding. Verification with the Philippine Overseas Employment Administration (POEA) revealed that Laurel was neither licensed nor authorized to recruit workers for overseas employment. Consequently, she was haled to court and charged with large scale illegal recruitment. Accused Laurel did not deny the charge against her. Instead, when called to the witness stand, she presented an affidavit of desistance by Juanito Cudal as well as several receipts, signed by the other private complainants acknowledging payment by her of the amounts taken from them in "full settlement" of her obligation. Thus, on the basis of these documents, she moved to dismiss the case. But the court a quo denied her motion on the ground that the elements of large scale illegal recruitment were established beyond reasonable doubt through the combined testimonies of the four (4) offended parties. The court a quo noted that the affidavit of desistance as well as the receipts for payments made were prepared and signed after the prosecution had already rested its case. Consequently, the trial judge rendered a decision convicting the accused Flor N. Laurel and sentenced her to life imprisonment and to pay a fine of P100,000.00 conformably with Art. 39, par. (a), of the Labor Code. In addition, the accused was ordered to return the balance of what she had received from each complainant. Hence, this appeal. As in the court below, accused-appellant does not deny the charge against her. She contends however that she should have been convicted only of simple illegal recruitment and not of large scale illegal recruitment. She argues through counsel that since illegal recruitment in large scale is defined in Art. 38, par. (b), of the Labor Code immediately following the definition of illegal recruitment committed by a syndicate, it follows that for illegal recruitment to be considered committed in large scale it should have been committed by a syndicate. Hence, an individual who commits an act of illegal recruitment even if it be against three (3) or more persons cannot be charged with illegal recruitment in large scale. Issue: Law: Is the contention of the appellant correct? Article 38, par. (b), of the Labor Code reads: Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage . . . . Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme defined under the first paragraph hereof. Illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group. Ruling: The language of the law is very clear that illegal recruitment is committed in large scale if done against three or more persons individually or as a group. The number of offenders, whether an individual or a syndicate, is clearly not considered a factor in the determination of its commission. The rule is well-settled that when the language of the statute is clear, plain and free from ambiguity there is no room for attempted interpretation or extended court rationalization of the law. The duty of the court is to apply it, not to interpret it. Counsel for accusedappellant was misled by the fact that illegal recruitment in large scale is defined immediately after illegal recruitment by a syndicate. However, the only reason therefore is that they are both considered offenses involving economic sabotage as the law itself so provides.

Opinion: The number of offenders, whether an individual or a syndicate, is clearly not considered as a factor in the determination of the commission of large scale Illegal Recruitment. G.R. Nos. L-58674-77 July 11, 1990 PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. DOMINGO PANIS, Presiding Judge of the Court of First Instance of Zambales & Olongapo City, Branch III and SERAPIO ABUG, respondents.

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Jose Ysrael C. Cordova Labor Review

Facts: Four information were filed on January 9, 1981, in the Court of First Instance of Zambales and Olongapo City alleging that Serapio Abug, private respondent herein, "without first securing a license from the Ministry of Labor as a holder of authority to operate a fee-charging employment agency, did then and there wilfully, unlawfully and criminally operate a private fee charging employment agency by charging fees and expenses (from) and promising employment in Saudi Arabia" to four separate individuals named therein, in violation of Article 16 in relation to Article 39 of the Labor Code. Abug filed a motion to quash on the ground that the information did not charge an offense because he was accused of illegally recruiting only one person in each of the four information. Under the proviso in Article 13(b), he claimed, there would be illegal recruitment only "whenever two or more persons are in any manner promised or offered any employment for a fee." Denied at first, the motion was reconsidered and finally granted in the Orders of the trial court dated June 24 and September 17, 1981. The prosecution is now before us on certiorari. Issue: Law: Is the court proper in granting the motion of the accused? The basic issue in this case is the correct interpretation of Article 13(b) of P.D. 442, otherwise known as the Labor Code, reading as follows: (b) Recruitment and placement' refers to any act of canvassing, enlisting, contracting, transporting, hiring, or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not: Provided, That any person or entity which, in any manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement. Ruling: Neither interpretation is acceptable. The Court fail to see why the proviso should speak only of an offer or promise of employment if the purpose was to apply the requirement of two or more persons to all the acts mentioned in the basic rule. For its part, the petitioner does not explain why dealings with two or more persons are needed where the recruitment and placement consists of an offer or promise of employment but not when it is done through "canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring (of) workers. As we see it, the proviso was intended neither to impose a condition on the basic rule nor to provide an exception thereto but merely to create a presumption. The presumption is that the individual or entity is engaged in recruitment and placement whenever he or it is dealing with two or more persons to whom, in consideration of a fee, an offer or promise of employment is made in the course of the "canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring (of) workers." Opinion: The presumption is that the individual or entity is engaged in recruitment and placement whenever he or it is dealing with two or more persons to whom, in consideration of a fee, an offer or promise of employment is made in the course of the "canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring (of) workers." G.R. No. 180926 December 10, 2008

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LOURDES VALENCIANO y DACUBA, accused-appellant. Facts: In May 1996, Lourdes Valenciano, claiming to be an employee of Middle East International Manpower Resources, Inc., went with one Susie Caraeg to the house of Agapito De Luna, and told him he could apply for a job in Taiwan. A week later, De Luna went to Valencianos house, there to be told to undergo a medical examination, with the assurance that if there were a job order abroad, he would be able to leave. He was also told that the placement fee for his employment as a factory worker in Taiwan was PhP 70,000. After passing the medical examination, De Luna paid Valenciano at the latters residence the following amounts: PhP 20,000 on June 21, 1996; PhP 20,000 on July 12, 1996; and PhP 30,000 on August 21, 1996. The first and last payments were turned over by Valenciano to Teresita Imperial, who issued the corresponding receipts, and the second payment was turned over by Valenciano to Rodante Imperial, who also issued a receipt. Also in May 1996, Valenciano visited the house of Allan De Villa, accompanied by Euziel N. Dela Cuesta, Eusebio T. Candelaria, and De Luna, to recruit De Villa as a factory worker in Taiwan. De Villa was also asked for PhP 70,000 as placement fee. He paid Valenciano the following amounts: PhP 20,000 on May 16, 1996 at Valencianos residence; PhP 20,000 on May 30, 1996 at the Rural Bank of Ca laca, Batangas; PhP 20,000 on July 8, 1996 at Valencianos residence; and PhP 10,000 on August 14, 1996, also at her residence. Valenciano turned over the amounts to either Teresita or Rodante. Teresita issued receipts for the May 16, July 8, and August 14, 1996 payments, while Rodante issued a receipt for the payment made on May 30, 1996.

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Jose Ysrael C. Cordova Labor Review

On May 20, 1996, Valenciano, accompanied by Rodante and Puring Caraeg, went to the house of Dela Cuesta to recruit her for employment as a factory worker in Taiwan. Dela Cuesta paid Valenciano PhP 20,000 as initial payment on May 20, 1996. On May 30, 1996, she paid Valenciano another PhP 20,000. On August 12, 1996, she paid PhP 15,000, and on August 21, 1996, she paid PhP 7,000. Valenciano turned the May 20 and 30, 1996 payments over to Rodante, who issued receipts for these payments. The payments made on August 12 and 21, 1996 were turned over to Teresita, who also issued receipts for them. These payments were to cover the placement fee and other expenses for the processing of the requirements for the employment of Dela Cuesta in Taiwan. On May 1, 1996, Valenciano, with Rodante, Teresita, and Rommel Imperial, went to Lian, Batangas to recruit workers for employment abroad. Candelaria applied for a job as a factory worker in Taiwan when Valenciano went to his residence in Lian. Valenciano asked him for an initial payment of PhP 20,000. On May 30, 1996, Candelaria paid Valenciano PhP 20,000 when she returned to Lian. He then paid PhP 20,000 on June 24, 1996 and PhP 29,000 on July 17, 1996 at Valencianos residence in Manila. These payments were to cover the placement fee and the expenses for the processing of his passport and other papers connected with his application for employment as a factory worker in Taiwan. The payments made on May 30 and July 17, 1996 were turned over to Rodante, who issued a receipt for the said payments. The payment made on June 24, 1996 was turned over by Valenciano to Teresita. After the payments were made, Valenciano brought the prospective workers to the office of Middle East International Manpower Resources, Inc. in Pasay City, where they were made to fill out application forms for their employment as factory workers in Taiwan. The complainants were introduced to Romeo Marquez, alias "Rodante Imperial," Teresita Marquez, alias "Teresita Imperial," and Rommel Marquez, alias "Rommel Imperial," whom Valenciano made to appear as the owners of the employment agency. She assured the prospective workers that they could leave for Taiwan within one month from the filing of their applications. During the period material, they have not yet found employment as factory workers in Taiwan. Issue: Is the court correct in convicting the accused of Illegal Recruitment? Law: Art. 13(b) of the Labor Code reads:

"Recruitment and placement" refers to 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: Provided, That any person or entity which, in any manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement. Art. 38(a) and (b) of the Labor Code reads as follows: (a) Any recruitment activities, including the prohibited practices enumerated under Article 34 of this Code, to be undertaken by non-licensees or non-holders of authority shall be deemed illegal and punishable under Article 39 of this Code. x x x (b) Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage and shall be penalized in accordance with Article 39 hereof. Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme defined under the first paragraph hereof. Illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group. Art. 39(a) provides that the penalty of life imprisonment and a fine of PhP 100,000 shall be imposed if illegal recruitment constitutes economic sabotage as defined above. Ruling: The claim of accused-appellant that she was a mere employee of her other co-accused does not relieve her of liability. An employee of a company or corporation engaged in illegal recruitment may be held liable as principal, together with his employer, if it is shown that the employee actively and consciously participated in illegal recruitment. As testified to by the complainants, accused-appellant was among those who met and transacted with them regarding the job placement offers. In some instances, she made the effort to go to their houses to recruit them. She even gave assurances that they would be able to find employment abroad and leave for Taiwan after the filing of their applications. Accused-appellant was clearly engaged in recruitment activities, notwithstanding her gratuitous protestation that her actions were merely done in the course of her employment as a clerk. Opinion: An employee of a company or corporation engaged in illegal recruitment may be held liable as principal, together with his employer, if it is shown that the employee actively and consciously participated in illegal recruitment.

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