PROPERTY DIGESTS (2013 2014)

G.R. No. 190487

ATTY. VIVENCIO ABANO

April 13, 2011
BACKGROUND

BUREAU OF CUSTOMS v. WHELAN

PETITIONER: BUREAU OF CUSTOMS
RESPONDENTS: PETER SHERMAN, MICHAEL WHELAN, TEODORO B.
LINGAN, ATTY. OFELIA B. CAJIGAL and the COURT OF TAX APPEALS

Herein respondents1 were charged before the DOJ for violation of

Section 3601 vis--vis Sections 2530 of the Tariff and Customs Code of
the Philippines, as amended, and Republic Act No. 7916.
State Prosecutor Rohaira Lao-Tamano found probable cause against
respondents and recommended the filing of Information against them.

PONENTE: J. Carpio Morales

CASE SUMMARY: Respondents were charged before the Department of
Justice for violation of the Tariff and Customs Code of the Philippines
and Republic Act No. 7916. State Prosecutor Lao-Tamano found
probable cause against them and recommended a filing of an
Information (see background) before the CTA. By a subsequent
Resolution, the Secretary of Justice reversed State Prosecutor LaoTamanos recommendation and withdrew the Information. LaoTamano himself later on filed before the CTA a Motion to Withdraw the
Information against the respondents, a move which petitioner BOC
opposed.
The CTA thereafter granted the Withdrawal of the
Information, to which the BOC filed an MR. The CTA Noted Without
Action this MR by the BOC. Hence, this appeal. The Court ruled that the
petitioner may not seek relief via certiorari because as all criminal
actions commenced by complaint or information are prosecuted under
the direction and control of public prosecutors, the CTAs Resolution
granting State Prosecutor Lao-Tamanos Withdrawal of the Information
means that the case against the respondents cannot anymore prosper.
Moreover, as petitioners MR of the challenged CTA Resolution did not
bear the imprimatur of the public prosecutor to which the control of the
prosecution of the case belongs, the petition must fail.

Respondents then filed a petition for review before the Secretary of

Justice during the pendency of which the Information was filed on
before the Court of Tax Appeals (CTA), the accusatory portion of which
reads:
That on or about June 2005 to December 2007, in Manila City, and
within the jurisdiction of this Honorable Court, the above named
accused, in conspiracy with one another, made 40 unlawful importations
of 255, 870 pieces of finished printed bet slips and 205, 200 rolls of
finished thermal papers from Australia valued at approximately US$
1,240,880.14, and caused the removal of said imported articles from the
Clark Special Economic Zone and delivery to the Philippine Charity
Sweepstakes Offices without payment of its corresponding duties and
taxes estimated at around Php 15,917,611.83 xxx to the damage and
prejudice of herein complainant.

Respondents:
1. MSPI Chairman Peter Sherman
2. Managing Director Michael Whelan
3. Country Manager Atty. Ofelia B. Cajigal
4. Finance Manager and Corporate Secretary Teodoro B. Lingan
5. Erick B. Ariarte and Ricardo J. Ebuna and Eugenio Pasco, licensed
customs broker who acted as agents of MSPI

Castelo Chan-Gonzaga Evardone Gacutan Gana Gutierrez Lopez Valdez Miclat Mercado Tan Torres Valdez Lopez Varela

PROPERTY DIGESTS (2013 2014)

Only respondents Cajigal and Lingan were served warrants of arrest
following which they posted cash bail bonds.
By Resolution of March 20, 2009, the Secretary of Justice reversed the
State Prosecutors Resolution and directed the withdrawal of the
Information.
Petitioners MR having been denied by Resolution of April 29, 2009, it
elevated the case by certiorari before the CA.
In the meantime, Prosecutor Lao-Tamano filed before the CTA a Motion
to Withdraw Information with Leave of Court to which petitioner filed
an Opposition. Respondents, on their part, moved for the dismissal of
the Information.
The CTA, by the herein assailed Resolution of September 3, 2009,
granted the withdrawal of and dismissed the Information.

ATTY. VIVENCIO ABANO

RESOLUTIONS AND ARGUMENTS
Major Point 1: As all criminal actions commenced by complaint or
information are prosecuted under the direction and control of public
prosecutors, the CTAs Resolution granting State Prosecutor LaoTamanos Withdrawal of the Information means that the case against
the respondents cannot anymore prosper.
In the prosecution of special laws, the exigencies of public
service sometimes require the designation of special
prosecutors from different government agencies to assist the
public prosecutor. This designation of special prosecutors from
different government agencies, however, does not detract from
the public prosecutor having control and supervision over the
case.
The participation in the case of a private complainant, like
petitioner, is limited to that of a witness, both in the criminal
and civil aspect of the case.

Hence, petitioners present petition for certiorari.

Major Point 2: Petitioner is not represented by the Office of the Solicitor

General (OSG) in instituting the present petition.
This contravenes the doctrine that "the OSG shall represent the
Government of the Philippines, its agencies and
instrumentalities and its officials and agents in any litigation,
proceeding, investigation, or matter requiring the services of
lawyers."
Petitioners MR of the challenged CTA Resolution did not bear
the imprimatur of the public prosecutor to which the control of
the prosecution of the case belongs. Hence, the present
petition fails.

ISSUE/S TO BE RESOLVED

FINAL VERDICT The petition is DISMISSED

Petitioners MR filed on September 22, 2009 was Noted Without Action

by the CTA by Resolution:
Considering that an Entry of Judgment was already issued in this case on
September 23, 2009, no MR of the Resolution dated September 3, 2009
having been filed by State Prosecutor Lao-Tamano of the DOJ; the "MR
of the Resolution dated 3 September 2009" filed on September 22, 2009
by Atty. Christopher F.C. Bolastig of the Bureau of Customs is NOTED,
without action.

WON petitioner BOC may seek relief via certiorari NO

SEPARATE OPINIONS None

Castelo Chan-Gonzaga Evardone Gacutan Gana Gutierrez Lopez Valdez Miclat Mercado Tan Torres Valdez Lopez Varela