EN BANC

COMMUNITY RURAL BANK A.M. No. RTJ-05-1909

OF GUIMBA (N. E.), INC.,
- versus Judge TOMAS B. TALAVERA,
Regional Trial Court (Branch 28), Promulgated:
Cabanatuan City, Nueva Ecija,
Respondent. April 6, 2005
The Constitution expects judges to be embodiments of competence, integrity, probity and independence. They must personify four ins; namely, integrity,
independence, industry and intelligence.[1] Their judgments must be characterized by excellence, their conduct by ethics, and their outlook by eternity. They are not
common individuals whose gross errors men forgive and time forgets.
The Case and the Facts
In a Complaint-Affidavit dated June 24, 2003, the Community Rural Bank of Guimba (N. E.), Inc. -- through its chief operating officer, Olga M. Samson -- charged Judge
Tomas B. Talavera of the Regional Trial Court (Branch 28) of Cabanatuan City, Nueva Ecija, with (1) serious misconduct and/or gross inefficiency and (2) violation of Rules
1.01,[2] 3.01[3] and 3.02[4] of the Code of Judicial Conduct. The Office of the Court Administrator (OCA) summarized the factual antecedents as follows:
In September 1997, the Bank lodged a complaint with the City Prosecutors Office of Cabanatuan charging several persons (the accused, for brevity)
with the offense of Estafa in relation to P.D. Nos. 818 and 1689. After a preliminary investigation, the Investigating Fiscal recommended the filing --of six
(6) Informations for Estafa against the accused. These were docketed as Criminal Case Nos. 8760 to 8765 and were raffled to Branches 25, 26, 28,
and 86 of RTC, Cabanatuan City. Respondent was the presiding judge of Branch 28 to whom Criminal Case Nos. 8761 and 8763 were raffled.
On 28 December 1998, the accused appealed the findings of the Investigating Fiscal to the Department of Justice (DOJ, for brevity). On 19 November
1999, the DOJ denied the petition of the accused. Then, the accused filed a Motion for Reconsideration, which was denied by the DOJ through a
resolution, dated 15 August 2000. Hence, respondent issued a Warrant of Arrest fixing no bail against the accused.
On 20 November 2000, the accused filed a Motion for Reinvestigation and to Lift the Issuance of Warrant of Arrest (Motion for Reinvestigation, for
brevity). However, neither the Bank nor its counsel was furnished a copy of said Motion. There was also no hearing on the said motion to afford the
Bank an opportunity to oppose the same.
On 4 December 2000, respondent granted the Motion for Reinvestigation without any hearing thereon. Thus, a reinvestigation proceeding was
conducted by Assistant Provincial Prosecutor Virgilio Caballero. Again, the Bank was not notified of said proceedings.
Assistant Provincial Prosecutor Caballero, in his Joint Resolution dated 28 December 2000, reversed the earlier findings of the previous Investigating
Fiscal. Thus, on the same day, a Motion to Dismiss was filed by Assistant Provincial Prosecutor Caballero. Neither the bank nor its counsel was notified
about the said Motion and no hearing thereon was held to afford the Bank an opportunity to oppose the same.
Respondent granted the Motion to Dismiss and ordered the release of the accused on 29 December 2000.
On 11 January 2001, the Bank, arguing that it had been deprived of due process, filed a Motion for Reconsideration with Opposition/Comment to the
Motion to Dismiss and Omnibus Motion for the Reinstatement of the Criminal Information and for the Recall of Order for Release.
Respondent denied the afore-mentioned Motion of the Bank for lack of merit on 23 March 2001. Thus, the Bank filed a Petition for Review under Rule
65 of the Revised Rules of Court with the Court of Appeals.
In view of the foregoing, Ms. Samson argued that respondent transgressed Sections 2, 5 and 6 of Rule 15 of the Revised Rules of Court, when he
granted the Motion for Reinvestigation of the accused and Assistant Provincial Prosecutor Caballeros Motion to Dismiss without notice and hearing in
favor of the Bank or its counsel. Furthermore, the granting by respondent of the Motion to Dismiss based solely on the Resolution issued by Assistant
Provincial Prosecutor Caballero, without making his own independent findings of the merits of the case, is repugnant to the principle laid down in
Crespo vs. Mogul (151 SCRA 462 [30 June 1987]) which held that once a complaint or information is filed in court any disposition or the conviction or
acquittal of the accused rests in the sound discretion of the court.
2. COMMENT/OPPOSITION WITH MOTION TO DISMISS dated 11 August 2003 of Respondent Judge Tomas B. Talavera where he refutes the
foregoing Complaint-Affidavit as follows:
There was no need to set the Motion for Reinvestigation for hearing because the Office of the Provincial Prosecutor who has direct control and
supervision of all criminal cases was furnished a copy of said motion. Furthermore, it should be noted that, in the Motion for Reinvestigation filed before
the court, the Office of the Provincial Prosecutor through the Assistant Provincial Prosecutor signified his intention not to object to the Motion for
Reinvestigation as can be seen from his handwritten note and signature appearing on said motion. Hence, setting the same for hearing would be an
exercise in futility and it could just delay the immediate disposition of the case.
The Office of the Provincial Prosecutor, after the reinvestigation, issued a Joint Resolution dated 28 December 2000 through Assistant Provincial
Prosecutor Virgilio Caballero recommending the dismissal of the criminal case. On the basis of said Joint Resolution, a Motion to Dismiss was filed by
Assistant Provincial Prosecutor Caballero, which was granted by respondent on 29 December 2003.
The Motion to Dismiss was not set anymore for hearing because it was filed by the public prosecutor who conducted the reinvestigation. Since the
Motion to Dismiss was filed by prosecutor and the same was not prejudicial to the adverse party (the accused), it is just proper for the court to treat the
said motion as non-litigious.
The private prosecutor filed a petition for certiorari before the Court of Appeals seeking to amend and set aside the Order dated 23 March 2003 of
Respondent Judge which denied the Motion for Reconsideration of the private complainant. The said petition is still pending before the Court of
Appeals. The grounds used by the private complainant in her petition for certiorari are the same grounds in the administrative complaint. Hence, the
administrative complaint filed by the private complainant is a violation of the principle on sub judice.
3. REPLY dated 15 September 2003 of the Bank through its legal counsel stating the following arguments:

Page 1 of 81

The reasoning of respondent in allowing the Motion for Reinvestigation without notice to private counsel and hearing is erroneous. The said motion is
litigious. Therefore, sound judicial discretion should have prompted the respondent to treat said motion as a mere scrap of paper for violating the
general rules on motions under Sections 2, 5 and 6 of Rule 15 of the Rules of Court and in view of the principles enunciated in Brizuela vs. Judge
Mendiola (A.M. No. RTJ-00-1560 dated 5 July 2000) and Bajet vs. Judge Areola (A.M. No. RTJ-01-1615 dated 19 June 2001). In Brizuela and Bajet,
the Supreme Court held that failure to serve notice on the adverse party rendered a litigious motion a mere scrap of paper.
Furthermore, the rule on sub judice was not violated by complainant. The cause of action and reliefs prayed for in the instant administrative complaint
are different from the petition filed by the Bank before the Court of Appeals. The petition filed before the Court of Appeals was filed on the ground of
grave abuse of discretion amounting to lack of jurisdiction, there being no other plain, speedy and adequate remedy in the ordinary course of law,
seeking to annul and set aside respondents Order dated 23 March 2001 denying complainant Banks Motion for Reconsideration of an earlier Order
dated 29 December 2000 granting Assistant Provincial Prosecutor Caballeros Motion to Dismiss. On the other hand, the administrative complaint filed
by the Bank aims to subject respondent to the appropriate administrative sanctions.[5]
In a Resolution dated October 20, 2004,[6] this Court resolved to re-docket the Complaint as a regular administrative matter.
Evaluation and Recommendation of the OCA
The OCA opined that by dismissing the criminal case without giving complainant the opportunity to object to the Motion for Reinvestigation and Motion
to Dismiss, respondent showed gross ignorance of the law, for which he should be sanctioned. The OCA added that the presence of the offended party
was required in the hearing of a motion to dismiss as much as in the arraignment. The dismissal of the criminal cases covered the litigations civil aspect
(recovery of damages by the offended party), which was deemed included in the Information.
Pursuant to Rule 140 of the Rules of Court, the OCA recommended that respondent judge be fined in the amount of P21,000.
On the other hand, the OCA recommended that the charge of gross misconduct be dismissed for lack of substantial evidence. It found no clear proof of
malice or wrongful intent on the part of respondent.
The Courts Ruling
We agree with the findings and recommendations of the OCA.
Administrative Liability
Courts exist to dispense and promote justice. Judges are the visible representations of law and justice.[7] One of their principal duties is to have an
adequate grasp of the Constitution, the law and jurisprudence. Indeed, they must be the embodiments of competence, integrity and independence.[8] They
owe it to the dignity of the court over which they preside, to the public who depend on them, and to the legal profession to which they belong, to know the
very law they are supposed to interpret and apply.[9] Party litigants will have great faith in the administration of justice only if judges can demonstrate their
grasp of legal principles.[10]
In the present case, the gross ignorance of respondent judge and his notorious violation of simple legal precepts were clearly shown by his issuance of the
Orders dated December 4, 2000 granting the Motion for Reinvestigation of the accused and December 29, 2000 granting the prosecutors Motion to Dismiss.
First, respondent should not have entertained the Motion for Reinvestigation filed by the accused. The former was fully aware that the latter had
appealed the unfavorable ruling of the investigating prosecutor to the Department of Justice (DOJ). Respondent judge must have in fact taken that
appeal into consideration when he issued a warrant of arrest against all the accused only on September 19, 2000,[11] after Justice Secretary Serafin R.
Cuevas had denied their Petition for Review and affirmed the presence of prima facie evidence against them. [12] Subsequently, on August 15, 2000,
the secretary also denied with finality the Motion for Reconsideration filed by the accused.[13]
Inasmuch as the Resolution of the provincial prosecutor has been affirmed by the secretary of justice, the existence of probable cause to hold the
accused for trial may be deemed to be the finding of the secretary himself, not merely of the prosecutor who had first investigated the case. [14]
Therefore, what the prosecutor reviewed and overruled in the reinvestigation was not the actuation and resolution of his predecessor, but of the
secretary of justice no less.[15]
The justice secretarys superior authority in the prosecution of offenses was elucidated upon by this Court in Ledesma v. Court of Appeals,[16] which we
quote:
Section 39, Chapter 8, Book IV in relation to Sections 5, 8, and 9, Chapter 2, Title III of the [Revised Administrative] Code gives the secretary of justice
supervision and control over the Office of the Chief Prosecutor and the Provincial and City Prosecution Offices. The scope of his power of supervision
and control is delineated in Section 38, paragraph 1, Chapter 7, Book IV of the Code:
(1) Supervision and Control. Supervision and control shall include authority to act directly whenever a specific function is entrusted by law or regulation
to a subordinate; direct the performance of duty; restrain the commission of acts; review, approve, reverse or modify acts and decisions of subordinate
officials or units; x x x
Supervision and control of a department head over his subordinates have been defined in administrative law as follows:
In administrative law, supervision means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter
fail or neglect to fulfill them, the former may take such action or step as prescribed by law to make them perform such duties. Control, on the other hand,
means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute
the judgment of the former for that of the latter.
Review as an act of supervision and control by the justice secretary over the fiscals and prosecutors finds basis in the doctrine of exhaustion of
administrative remedies which holds that mistakes, abuses or negligence committed in the initial steps of an administrative activity or by an
administrative agency should be corrected by higher administrative authorities, and not directly by courts. x x x
The actions of prosecutors are not unlimited; they are subject to review by the secretary of justice who may affirm, nullify, reverse or modify their actions
or opinions.[17] Consequently the secretary may direct them to file either a motion to dismiss the case or an information against the accused.[18]
In short, the secretary of justice, who has the power of supervision and control over prosecuting officers, is the ultimate authority who decides which of
the conflicting theories of the complainants and the respondents should be believed.[19] The provincial or city prosecutor has neither the personality nor
the legal authority to review or overrule the decision of the secretary.[20] This principle is elementary.
Page 2 of 81

Consistent with this administrative superior-subordinate relationship between them, Section 7 of Department Order No. 223 [21] (the rules governing
appeals from resolutions in preliminary investigations or reinvestigations) provides:
Sec. 7. Motion for Reinvestigation. At any time after the appeal has been perfected and before the resolution thereof, the appellant may file a motion for
reinvestigation on the ground that new and material evidence has been discovered which appellant could not with reasonable diligence have
discovered during the preliminary investigation and which if produced and admitted would probably change the resolution.
From the above-quoted provision, a motion for reinvestigation on the ground of newly discovered evidence must be filed before the justice secretary
rules on an appeal from a resolution in a preliminary investigation.
In the present case, the accused filed their Motion for Reinvestigation on November 29, 2000,[22] about three months after the August 15, 2000
Resolution of the secretary denying with finality their Motion for Reconsideration of the denial of their Petition for Review. Clearly, therefore, it was
grossly erroneous for respondent judge to order the reinvestigation of the case by the prosecutor. This action enabled the latter to reprobate and
reverse the secretarys Resolution. In granting the Motion for Reinvestigation, respondent effectively demolished the DOJs power of control and
supervision over prosecutors.
Furthermore, the judge perfunctorily granted the Motion for Reinvestigation on the basis of an alleged newly discovered evidence -- a one-page Affidavit
executed by Ms Gloria Sacramento, one of the co-accused in the criminal case. The Affidavit,[23] dated October 29, 1997, was clearly not newly discovered; it
was already known to the accused even during the preliminary investigation. There was no explanation whatsoever as to why this piece of evidence was never
presented during the preliminary investigation. Nonetheless, respondent hastily granted the Motion.
Considering that a prima facie case had been found to exist against the accused during the preliminary investigation -- a fact affirmed by the justice
secretary -- respondent judge should have exercised great restraint in granting a reinvestigation.[24]
It must be stressed here that a preliminary investigation is essentially prefatory and inquisitorial.[25] It is not a trial of the case on the merits and has no
purpose except to determine whether a crime has been committed, and whether there is probable cause to believe that the accused is guilty of that
crime.[26] A preliminary investigation is not the occasion for a full and exhaustive display of the parties evidence, which needs to be presented only to
engender a well-grounded belief that an offense has been committed, and that the accused is probably guilty thereof.[27]
Second, in granting the Motion to Dismiss, respondent relied solely on the Resolution of the prosecutor who had conducted the reinvestigation and
recommended the dismissal of the case for alleged insufficiency of evidence. The December 29, 2000 Order[28] granting the Motion to Dismiss reads in
full as follows:
Finding the Motion to Dismiss in these cases to be meritorious, the same is hereby granted, and Fernando del Rosario and Flordeliza del Rosario, both
accused in the above-entitled cases are hereby ordered released unless they are being detained for some other lawful cause.
Cabanatuan City, December 29, 2000.
This perfunctory Order does not demonstrate an independent evaluation or assessment of the evidence (or the lack thereof) against the accused. In
other words, the dismissal of the case was not shown to be based upon the judges own individual conviction that there was no viable case against
them.
This Court also observes that respondent acted with undue haste when he granted the Motion on December 29, 2000, [29] only a day after the
reinvestigation was concluded on December 28, 2000.[30] Coupled with the absence of the required evaluation in the Resolution granting the dismissal
of the case, this hasty action leads to the indubitable conclusion that the judge did not personally evaluate the parties evidence before acting on the
Motion.
Settled is the legal doctrine that the discretion to accede to a Motion to Dismiss filed by the prosecutor rests solely with the court.[31] Mere approval of
the position taken by the prosecution is not equivalent to the discretion required in cases like this. [32] The trial judge must be convinced that there was
indeed no sufficient evidence against the accused. Such a conclusion can be arrived at only after a thorough assessment of the prosecution evidence.
For a valid and proper exercise of judicial discretion, accepting the prosecutions word that the evidence is insufficient is not enough; [33] strictly required
of the order disposing of the motion is the trial judges own evaluation of such evidence.[34] Once a complaint or an information is filed in court, the
judge -- not the prosecutor -- assumes full control of the controversy.[35] Thus, a grant of the motion to dismiss is equivalent to a disposition of the case
itself,[36] a subject clearly within the courts exclusive jurisdiction and competence.[37]
Furthermore, when respondent judge issued the warrants of arrest without bail against all the accused, it is presumed that he had studied the
Information and the Resolution of the prosecutor and agreed with the latters findings of probable cause.[38] Consequently, the grant of the Motion for
Reinvestigation and of the Motion to Dismiss for alleged insufficiency of evidence posed a serious contradiction of the earlier finding of probable cause.
Third, respondent granted the Motions despite the obvious lack of notice to complainant (the private offended party in the criminal case) and lack of
hearing. This lapse effectively deprived it of its day in court.
The Rules of Court require that, with the exception of motions that the court may act upon without prejudicing the rights of the adverse party, every
written motion should be set for hearing by the movant. Sections 4, 5 and 6 of Rule 15 of the Rules of Court explicitly require that notices be sent at
least three days before the hearing and directed at the parties concerned; and that they state the time and place of hearing of the motion, with proper
proof of notice thereof. Without such proof, the motion is considered pro forma; thus, the court cannot act upon it.[39]
The purpose of the notice is to enable the adverse party to appear for its own protection and to contest the motion. [40] Elementary due process
mandates that the other party be notified of the adverse action of the opposing party,[41] so as to avoid a capricious change of mind and to ensure
impartiality of the trial.[42] Here, the Motions for Reinvestigation and to Dismiss were fatally defective, as neither contained any proper notice of
hearing. Respondent thus grossly erred in taking cognizance of these Motions.
In criminal proceedings, the word party is held to mean not only the government and the accused, but also other persons who may be affected by the orders
issued and/or judgment rendered therein.[43]
Undoubtedly, complainant had an interest in the maintenance of the criminal prosecution.[44] Its right to intervene therein was practically beyond question, as it
neither instituted a separate civil action nor reserved or waived the right to do so.[45] Thus, as the party injured by the crime, it had the right to be heard on a
motion that was derogatory to its interest in the civil aspect of the case. Due process[46] necessitates that it be afforded this opportunity, especially because
of a conflict between the positions of the public prosecutor and of the offended party.

Page 3 of 81

Respondent judge does not deny that no notice was given to complainant. Neither was a hearing conducted before the issuance of the subject Orders.
By such failure of notice and hearing, he effectively deprived complainant of the opportunity to appear and to oppose the said Motions. That the
offended party, not only the accused, must be accorded due process was explained by the Court in Dimatulac v. Villon, which ruled thus:
x x x Although the determination of a criminal case before a judge lies within his exclusive jurisdiction and competence, his discretion is not unfettered,
but rather must be exercised within reasonable confines. The judges action must not impair the substantial rights of the accused, nor the right of the
State and offended party to due process of law.
Indeed, for justice to prevail, the scales must balance; justice is not to be dispensed for the accused alone. The interests of society and the offended
parties which have been wronged must be equally considered. Verily, a verdict of conviction is not necessarily a denial of justice; and an acquittal is not
necessarily a triumph of justice, for, to the society offended and the party wronged, it could also mean injustice. Justice then must be rendered evenhandedly to both the accused, on one hand, and the State and the offended party, on the other. [47]
All told, respondent showed his lack of understanding, not only of the basic and established superior-subordinate relationship between the secretary of
justice and the provincial prosecutors, but also of the functions and duties of the trial court in the proper scheme of things in our criminal justice system.
The judge similarly failed to attach importance to the standard and fundamental procedure mandated by the Rules of Court and the rudiments of due
process. His actions manifested a marked deficiency in his knowledge of the law. Where, as in this case, the legal principle involved is basic, simple
and elementary, lack of conversance therewith constitutes gross ignorance of the law.[48]
Judges are expected to have more than just a modicum acquaintance with the statutes and procedural rules. [49] The Code of Judicial Ethics
requires them to be embodiments of, among other desirable characteristics, judicial competence.[50] They are not common individuals whose gross
errors men forgive and time forgets.[51]
The OCA recommended the penalty of a fine in the amount of P21,000 for respondent judges gross ignorance of the law, which is classified by Rule
140 of the Rules of Court as a serious charge. As to the complaint of serious misconduct, we also adopt the findings of the OCA that no fraud,
malice or wrongful intent was imputed, or proved by complainant; hence, respondent cannot be made liable therefor.
WHEREFORE, Judge Tomas B. Talavera is found GUILTY of gross ignorance of the law and is FINED twenty one thousand pesos. He is hereby sternly
warned that a repetition of the same or similar infractions in the future shall be dealt with more severely.
SO ORDERED.

Page 4 of 81

SECOND DIVISION
SEBASTIAN SERAG, G.R. No. 163818
Petitioners,
Promulgated:
-versusOctober 20, 2005
COURT OF APPEALS and
MA. DAISY SIBYA,
Respondents.
In the wee hours of May 11, 2001, Atty. Jesus Sibya, Jr., a mayoralty candidate in San Joaquin, Iloilo during the 2001 elections, was shot to death in
front of his residence. His driver, Norberto Salamat III, was also wounded. The Criminal Investigation and Detection Group in Iloilo City filed a criminal
complaint for murder and attempted murder against Lino Napao, then incumbent mayor of San Joaquin, and Sebastian Serag.[1] In a Joint Resolution
dated May 26, 2001, the Provincial Prosecutor filed two Informations with the Regional Trial Court (RTC) of Guimbal, Iloilo: (1) for Murder with the Use
of Unlicensed Firearms, and (2) Attempted Murder with the Use of Unlicensed Firearms against Serag and Napao and seven unidentified persons.[2]
The cases were docketed as Criminal Case Nos. 925 and 926.
On May 28, 2001, Norberto Salamat III and Ma. Daisy Sibya, the widow of the deceased, filed before the Office of the Provincial Prosecutor a
Supplemental Complaint for murder, frustrated murder and violation of Presidential Decree No. 1866 against Serag, Lino Napao, 16 others, and three
other unidentified persons.[3] On July 26, 2001, the Provincial Prosecutor issued a Joint Resolution finding probable cause for murder and attempted
murder with the use of unlicensed firearms against Serag, Lino Napao, Juan Napao and 14 other accused, including those whose identities were earlier
unknown.[4] The Provincial Prosecutor filed, in the RTC of Guimbal, Iloilo, an Amended Information for Murder [5] and an Amended Information for
Attempted Murder with the use of unlicensed firearm against the said accused.
Accused Juan Napao and the 14 other additional accused filed on August 16, 2002, a petition for review of the July 26, 2001 Joint Resolution of the
Provincial Prosecutor before the Department of Justice (DOJ).[6]
The trial court found probable cause for murder and attempted murder against the accused. Consequently, the court issued an Order [7] on September
27, 2001, for the issuance of warrants for the arrest of the accused who were still at large.
Pending the resolution by the Secretary of Justice of the said petition for review, the proceedings were suspended. Subsequently, however, the
arraignment of the accused was set on May 21, 2002. It was, thereafter, reset to June 6, 2002 which, by agreement of the prosecution and the defense,
was intransferrable in character.[8] It turned out that the day before (May 20, 2002), the Secretary of Justice had issued Resolution No. 258 affirming
with modification, the Joint Resolution of the Provincial Prosecutor, downgrading the charges from Murder to Homicide, and from Attempted Murder to
Attempted Homicide, respectively, except as to four of the accused. The Provincial Prosecutor was likewise ordered to amend the Amended
Informations accordingly.[9] The RTC received a copy of the Resolution on May 27, 2002.
Ma. Daisy Sibya, likewise, received, on May 27, 2002, a copy of the said Resolution. She filed a motion for the reconsideration of the said resolution on
June 4, 2002, serving copies thereof on the RTC and the accused-petitioners by registered mail.
In compliance with Resolution No. 258 of the Secretary of Justice, the Provincial Prosecutor filed before the RTC on June 5, 2002 a Motion for Leave to
File a Second Amended Information for homicide and attempted homicide in the two cases, and for the court to admit the said second Amended
Informations.[10] The motion was set for hearing at 2:00 p.m. of June 6, 2002. During the said hearing, the private prosecutors opposed the motion and
moved for deferment, contending that the private complainant had earlier filed a motion for reconsideration of Resolution No. 258, and that it would be
premature for the Provincial Prosecutor to file a motion for the admission of the Second Amended Information and for the court to admit the same. [11]
The Provincial Prosecutor joined the motion of the private prosecutors.
However, the RTC verbally granted the motion of the Provincial Prosecutor, and admitted the Second Amended Information for Homicide. [12] Criminal
Case No. 926 for the attempted homicide was, likewise, dismissed on the ground that it had no jurisdiction over the said case. The RTC further
declared that it had not been served with a copy of the private complainants motion for reconsideration. The court forthwith arraigned the accused for
homicide, who pleaded not guilty to the crime charged.
On June 6, 2002, the RTC issued its Order[13] granting the motion of the Provincial Prosecutor for the admission of the Second Amended Information
for Homicide, and ordered the dismissal of Criminal Case No. 926 without prejudice to its re-filing in the Municipal Trial Court (MTC). Accordingly, the
Information was re-filed in the MTC, docketed as Criminal Case No. 1604. The accused were arraigned for the said cases. [14] Taking into account the
finding of the Secretary of Justice, the court held that the finding of probable cause for murder against the accused did not bar it from admitting the
Second Amended Information for Homicide. Likewise, the pendency of the private complainants motion for the reconsideration of the May 20, 2002
Resolution of the Secretary of Justice was not a valid reason for the deferment of the arraignment of the accused for homicide. On June 19, 2002, the
private prosecutors moved for the reconsideration of the order of the trial court which, however, denied the motion in an Order[15] dated July 26, 2002.
The private complainant forthwith assailed the orders of the trial court and the arraignment of the accused on June 6, 2002 via a petition for certiorari in
the Court of Appeals (CA). The case was docketed as CA-G.R. SP No. 73035. She insisted that the admission by the RTC of the Second Amended
Information downgrading the crime charged therein to Homicide and the arraignment of the accused therein on June 6, 2002 were premature since the
Secretary of Justice had not yet resolved her motion for reconsideration of the May 20, 2002 Resolution.
On November 22, 2002, the CA issued a Temporary Restraining Order enjoining the RTC from proceeding with Criminal Case Nos. 925 and 926.[16]
In the meantime, the Secretary of Justice issued a Resolution[17] on November 18, 2002, granting the motion for reconsideration of the private
complainant, setting aside Resolution No. 258. Consequently, the May 26, 2001 and July 26, 2001 Resolutions of the Provincial Prosecutor were
reinstated. The Secretary of Justice opined that the killing of the deceased was, after all, qualified by treachery. He further declared that he was not
proscribed from taking cognizance of and resolving the private complainants motion for reconsideration notwithstanding the arraignment of the
accused. He directed the Provincial Prosecutor to withdraw the Second Amended Information for Homicide and Attempted Homicide and to file, in lieu
thereof, separate Informations for Murder and Attempted Murder, respectively, against the said accused.
On December 5, 2002, the accused-petitioners filed a motion for the reconsideration of the said Resolution.[18] They argued that, with their
arraignment in the RTC and the MTC, the Secretary of Justice should have denied the private complainants motion for reconsideration, conformably
with Section 7(2) of DOJ Circular No. 70. However, the Secretary of Justice denied the said motion.
Juan Napao and the other petitioners in the Department of Justice filed a petition for certiorari with the CA assailing the November 18, 2002 Resolution
of the Secretary of Justice, and praying for the reinstatement of Resolution No. 258. The case was docketed as CA-G.R. SP No. 77759.
In a Resolution[19] dated July 18, 2003, the CA dismissed the petition for failure of the petitioners therein to comply with Section 2, Rule 42 and
Section 5, Rule 7 of the Rules of Court, as only one of the petitioners had executed the requisite certificate of non-forum shopping. The petitioners
therein filed a motion for the reconsideration of the CA resolution, but the appellate court denied the motion for lack of merit.[20]
On June 3, 2004, Sebastian Serag, et al. filed a petition for review on certiorari with this Court, assailing the Resolutions of the CA in CA-G.R. SP No.
77759. The case was docketed as G.R. No. 163557. In a Resolution dated June 23, 2004, this Court denied the petition for the petitioners failure to
show that the appellate court committed any reversible error. The said resolution became final and executory, and entry of judgment was made of
record on August 23, 2004.
Meanwhile, on November 22, 2002, the CA issued a Resolution[21] in CA-G.R. SP No. 73035 directing the respondents to file their comment on the
petition within 10 days from notice thereof.
On November 27, 2002, petitioner Ma. Daisy Sibya filed an Urgent Manifestation and Motion[22] with the CA in CA-G.R. SP No. 73035, praying that
the appellate court resolve her petition on its merits in light of the November 18, 2002 Resolution of the Secretary of Justice and to set aside the June 6,
Page 5 of 81

2002 arraignment of the private respondents in the trial court. The private respondents opposed the motion on the ground that they had filed a Joint
motion for reconsideration of the November 18, 2002 Resolution of the Secretary of Justice, who had yet to resolve the same.[23]
On December 4, 2002, the Provincial Prosecutor filed a Motion with the trial court for the withdrawal of the Second Amended Information for homicide
and for the reinstatement of the Amended Information for murder. However, in view of the temporary restraining order issued by the CA in CA-G.R. SP
No. 73035, the trial court suspended the proceedings.
On December 16, 2002, the CA issued a Resolution[24] in CA-G.R. SP No. 73035 dismissing the petition on the ground that it had become moot and
academic in light of the November 18, 2002 Resolution of the Secretary of Justice. Private complainant Ma. Daisy Sibya filed a motion for
reconsideration of the said Resolution on the ground that the November 18, 2002 Resolution of the Secretary of Justice could not be implemented
unless and until the assailed Orders of the trial court and the arraignment of the accused therein on June 6, 2002 are nullified. [25] The private
respondents therein opposed the motion on the ground that the petitioner was estopped from assailing their arraignment.
On November 10, 2003, the CA issued a Resolution[26] granting the motion of the petitioner in CA-G.R. SP No. 73035 and consequently nullifying the
June 6 and July 26, 2002 Orders of the trial court, as well as the arraignment of the private respondents therein on June 6, 2002.
On June 21, 2004, Sebastian Serag, et al. filed a Petition for review on certiorari with this Court assailing the November 10, 2003 Resolution of the CA
in CA-G.R. SP No. 73035. The case was docketed as G.R. No. 163818. The petitioners alleged that the CA acted without or in excess of its jurisdiction
or with grave abuse of discretion amounting to either lack or excess of jurisdiction in nullifying the June 6, 2002 and July 26, 2002 Orders of the RTC
and their arraignment on June 6, 2002 instead of dismissing the petition for being moot and academic.[27]
The petitioners insist that by virtue of the Secretary of Justices November 18, 2002 Resolution, reverting to the original charges of murder and
attempted murder, the private respondents petition in the CA had been mooted. They note that the relief prayed for by the petitioner therein (private
respondent Sibya) for the retention of the original charges was granted by the Secretary of Justice. They maintain that the CA was correct in dismissing
the petition for being moot and academic in its Resolution of December 16, 2002. The private complainant should have filed the appropriate pleading in
the trial court for the implementation of the November 18, 2002 Resolution of the Secretary of Justice, instead of insisting that her petition be resolved
on its merits. By its November 10, 2003 Resolution nullifying the assailed Orders of the RTC and the arraignment of the petitioners on June 6, 2002, the
CA thereby deprived the RTC of its jurisdiction to act on all pending motions of the Provincial Prosecutor, that is, for the withdrawal of the Second
Amended Information for homicide and the reinstatement of the Amended Information for murder. The petitioners insist that the RTC had the authority
to delve into and resolve the merits of the Provincial Prosecutors motion for the withdrawal of the Second Amended Information for homicide and the
reinstatement of the Amended Information for murder. After all, the trial court has complete control of the case; any disposition therein is subject to its
sound discretion and it is not bound by the findings and recommendations of the Secretary of Justice.
The petitioners further claim that their arraignment on June 6, 2002 was on the insistence of the prosecutors, making the setting intransferrable
whether or not the Secretary of Justice would resolve their petition for review. Thus, the RTC had no other alternative but to proceed with their
arraignment. Moreover, the private complainant failed to serve them and the RTC with copies of her motion for reconsideration in the DOJ on or before
the said date. The private prosecutors service of the said motion for reconsideration on them (petitioners) and the RTC by registered mail was
anomalous, considering the proximity of the law office of the private prosecutors, the defense counsel and the RTC.Finally, the petitioners emphasize
that the private respondent failed to append to her petition in CA-G.R. SP No. 73035 certified true copies of the assailed orders; hence, the appellate
court abused its discretion in not dismissing the said petition outright.
In her comment on the petition, the private respondent averred that the instant petition had been mooted by this Courts dismissal of the petitioners
petition in G.R. No. 163557.
In reply, the petitioners contend that the subject matter of their petition in CA-G.R. SP No. 77759 was the November 18, 2002 Resolution of the
Secretary of Justice, while the subject matter of CA-G.R. SP No. 73035 were the June 6, 2002 and July 26, 2002 Orders of the RTC, as well as the
petitioners arraignment on June 6, 2002.
The threshold issues for resolution are the following: (a) whether the petition at bench is barred by the resolution of this Court in G.R. No. 163557
denying due course and dismissing the petition for review on certiorari; and (b) whether the CA committed grave abuse of discretion amounting to
excess or lack of jurisdiction in nullifying the June 6, 2002 and July 26, 2002 Orders of the RTC and their arraignment on June 6, 2002 instead of
dismissing the petition in CA-G.R. SP No. 73035 for being moot and academic.
On the first issue, we find the contention of the private respondent to be barren of merit. A motion is considered moot when it no longer presents a
justiciable controversy because the issues involved have become academic or dead.[28] Courts will not determine a moot question in which no practical
relief can be granted.[29] However, the Court will decide a question otherwise moot and academic if it is capable of repetition, yet evading review.[30]
In the present case, the issues posed by the petitioner in CA-G.R. SP No. 77759 are as follows:
I. RESPONDENT SECRETARY OF JUSTICE GRAVELY ABUSED HIS DISCRETION WHEN HE ACTED ON THE MOTION FOR RECONSIDERATION
OF PRIVATE COMPLAINANTS AND IN ISSUING THE ASSAILED RESOLUTION OF NOVEMBER 18, 2002, COMPLETELY REVERSING HIS
RESOLUTION 258 OF MAY 20, 2002 IN VIOLATION OF SECTIONS 12(e) AND SEC. 7, PAR. 2 OF ITS OWN DEPARTMENT CIRCULAR NO. 70.
II. IT WAS GRAVE ERROR FOR RESPONDENT SECRETARY OF JUSTICE TO ACT ON THE MOTION FOR RECONSIDERATION OF PRIVATE
COMPLAINANTS WHEN HE WAS ALREADY INFORMED THAT THE ACCUSED HAVE ALREADY BEEN ARRAIGNED ON THE SECOND AMENDED
INFORMATION BASED ON HIS RESOLUTION 258 OF MAY 20, 2002; DOUBLE JEOPARDY ALREADY ATTACHES.[31]
The Court notes that the CA failed to resolve the said issues on their merits, and instead dismissed the said petition for the petitioners failure to comply
with Section 2, Rule 43 and Section 5, Rule 7 of the Rules of Court. The said ruling was affirmed by this Court. On the other hand, the issue raised by
the private respondent in her petition in CA-G.R. SP No. 73035 was whether the RTC committed grave abuse of discretion amounting to excess or lack
of jurisdiction in nullifying the June 6, 2002 and July 26, 2002 Orders of the RTC, and the arraignment of the petitioners herein on June 6, 2002. Thus,
the dismissal by this Court of the petition in G.R. No. 163557 and the consequent affirmance of the November 18, 2002 Resolution of the Secretary of
Justice did not render the issues raised in this case moot and academic. This Court has to delve into and resolve the issue of whether the RTC abused
its discretion amounting to excess or lack of jurisdiction in granting the Provincial Prosecutors motion for the admission of the Second Amended
Information and in proceeding with the petitioners arraignment for homicide. The Secretary of Justice could not have resolved the said issues, as only
the CA and this Court on appeal under Rule 45 of the Rules of Court are competent to do so. Thus, the appellate court cannot likewise be blamed for
not dismissing the petition in CA-G.R. SP No. 73035 filed by the private respondent for being moot and academic when the Secretary of Justice issued
his November 18, 2002 Resolution reversing Resolution No. 258.
The appellate courts nullification of the June 6, 2002 and July 26, 2002 Orders of the RTC and the arraignment of the petitioners on June 6, 2002 are
well-founded. Section 13 of DOJ Circular No. 70 reads:
SECTION 13. Motion for reconsideration. The aggrieved party may file a motion for reconsideration within a non-extendible period of ten (10) days from
receipt of the resolution on appeal, furnishing the adverse party and the Prosecution Office concerned with copies thereof and submitting proof of such
service. No second or further motion for reconsideration shall be entertained.
The private respondent, on May 27, 2002, received a copy of Resolution No. 258 of the Secretary of Justice downgrading the charges from murder and
attempted murder to homicide and attempted homicide. She had the right to file a motion for reconsideration of the aforesaid resolution on or before
June 6, 2002. Indeed, she filed such motion, through the private prosecutors, by personal delivery to the DOJ on June 4, 2002. Thereafter, it behooved
the RTC to suspend the proceedings until after the Secretary of Justice had resolved such motion with finality, including the consideration of the motion
of the Provincial Prosecutor for the admission of the Second Amended Information for homicide, the dismissal of Criminal Case No. 926, and the
arraignment of the petitioners for homicide. It was, in fact, premature for the Provincial Prosecutor to file such motion for the admission of the Second
Amended Information since the Secretary of Justice had not yet resolved the said motion; after all, he may still reconsider Resolution No. 258, which he
Page 6 of 81

did on November 18, 2002, effectively reversing his previous ruling affirming the assailed Resolutions of the Provincial Prosecutor on May 26, 2001 and
July 26, 2001, and thus reverting to the original charges of murder and attempted murder. As this Court declared in Marcelo v. Court of Appeals:[32]
Consequently, the 5 December 1991 Manifestation and Motion of the petitioners praying for the dismissal of the case and the 10 December 1991
motion of Assistant City Prosecutor Jamolin asking for the withdrawal of the information were prematurely filed, because as to the first, the period of the
offended party to appeal from the resolution to the Secretary of Justice had not yet lapsed or even begun, there being no showing of the date the
offended party received a copy thereof; and, as to the second, an appeal had in fact been filed on 10 December 1991.
Prudence, if not wisdom or at the very least respect for the authority of the prosecution agency to which the Bersamin court deferred, dictated against a
favorable action on the Review Committees resolution until the denial of the appeal or the affirmance of the resolution by the Secretary of Justice. The
Bersamin court acted then with precipitate or undue haste in issuing the 13 December 1991 Order granting the petitioners motion to dismiss and
Prosecutor Jamolins motion to withdraw the information in Criminal Case No. Q-91-21285.
Accordingly, we rule that the trial court in a criminal case which takes cognizance of an accuseds motion for review of the resolution of the investigating
prosecutor or for reinvestigation and defers the arraignment until resolution of the said motion must act on the resolution reversing the investigating
prosecutors finding or on a motion to dismiss based thereon only upon proof that such resolution is already final in that no appeal was taken therefrom
to the Department of Justice.
Admittedly, the private prosecutors failed to serve the RTC with a copy of their motion for reconsideration by personal delivery, and failed to file a formal
motion for the deferment of the hearing of the Provincial Prosecutors motion for the admission of the Second Amended Information for homicide and the
arraignment of the petitioners before June 6, 2002. However, the private prosecutors explained that due to time constraints, owing to the ten-day period
for filing such motion for reconsideration, such motion had to be hand-carried to the DOJ on June 4, 2002, while copies meant for the RTC and to the
accused were sent by registered mail. Furthermore, the RTC was not precluded from taking cognizance of and resolving the oral motion of the private
prosecutors for the deferment of the hearing on the Provincial Prosecutors motion for the admission of the Second Amended Information for homicide.
After all, under Rule 15, Section 2 of the Rules of Court, motions may be made in open court or in the course of a hearing or trial in the presence of the
other party who has the opportunity to object thereto.
In fine, the RTC acted with inordinate and precipitate haste when it granted the Provincial Prosecutors motion for the admission of the Second
Amended Information for homicide, ordered the withdrawal of Criminal Case No. 926 for attempted homicide based on Resolution No. 258 of the DOJ
Secretary, and arraigned the accused therein for homicide.
As the appellate court correctly pointed out in its November 10, 2003 Resolution:
Public respondent also erroneously found that the pendency of the motion for reconsideration, and the other reasons given, not compelling for the court
to defer its action on the motion to admit. Public respondent also questioned the personality of the petitioner, as the private offended party, in actively
participating in the criminal prosecution.
As earlier stated, Department Circular No. 70 places the duty upon the appellant and the trial prosecutor to see to it that, pending resolution of the
appeal, the proceedings in court are held in abeyance.
Therefore, the pendency of an appeal before the DOJ is enough reason for the deferment of any proceedings in the trial court and petitioner, through
the private prosecutors, correctly moved for the deferment of the admission of the second amended informations for homicide and attempted homicide.
It should be considered that the motion to defer was even with the conformity of the public prosecutor and the appearance of the private prosecutors is
pursuant to Section 16, Rule 110 of the 2000 Rules on Criminal Procedure, to wit:
Intervention of the offended party in criminal action.Where the civil action for recovery of civil liability is instituted in the criminal action pursuant to Rule
111, the offended party may intervene by counsel in the prosecution of the offense.
Besides the oral recitation in open court by the private prosecutors of the grounds cited in the motion to defer the admission of the second amended
informations for homicide and attempted homicide, which the public respondent found unprocedural, petitioner was not really given the opportunity to
oppose the motion to admit the same informations.
All these facts taken together, there appears to be an undue haste on the part of the public respondent in admitting the second amended informations
for homicide and attempted homicide and ordering the arraignment of the private respondents to the said informations. This is considering that no word
of protestation was heard from the petitioner when she waited for nine (9) months for the DOJ to resolve the private respondents petition for review.
As a result of the assailed Orders issued by public respondent, the private respondents were arraigned for homicide and attempted homicide.[33]
The petitioners contention that the RTC was deprived of its authority to act on and resolve the motion of the Provincial Prosecutor for the withdrawal of
the Second Amended Information for homicide and the retention of the Amended Information for murder and attempted murder is not correct. Indeed,
the Provincial Prosecutor filed a motion in the RTC for the withdrawal of the Second Amended Information for homicide and for the reinstatement of the
Amended Information for murder on December 4, 2002. Were it not for the temporary restraining order issued by the CA in CA-G.R. No. 73035, the
RTC would have resolved the same one way or the other.
The People of the Philippines was not estopped by the Prosecutors insistence on May 21, 2002 that the petitioners and the other accused be arraigned
on June 6, 2002 despite the pending petition for review of petitioners Juan Napao, et al. and the motion for reconsideration of the private respondent
before the Secretary of Justice. The fact of the matter is that during the hearing of June 6, 2002, the Prosecutors moved for the deferment of the
consideration of the Provincial Prosecutors motion for the withdrawal of the Second Amended Information for homicide because, in the meantime, the
private complainant had filed a motion for the reconsideration of the Justice Secretarys Resolution No. 258. The latter cannot be stripped of his
authority to act on and resolve the aforesaid motion of the private complainant on the Prosecutors insistence that the accused be arraigned on June 6,
2002. Indeed, under Section 7 of DOJ Circular No. 70, the Secretary of Justice may resolve the said motion despite the arraignment of the petitioners:
SECTION 7. Action on the petition. The Secretary of Justice may dismiss the petition outright if he finds the same to be patently without merit or
manifestly intended for delay, or when the issues raised therein are too unsubstantial to require consideration.
If an information has been filed in court pursuant to the appealed resolution, the petition shall not be given due course if the accused had already been
arraigned. Any arraignment made after the filing of the petition shall not bar the Secretary of Justice from exercising his power of review.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit.
SO ORDERED.

Page 7 of 81

HILARIO P. SORIANO,
Petitioner,

SECOND DIVISION
G.R. No. 162336

- versus -

Present:

PEOPLE OF THE PHILIPPINES,

BANGKO SENTRAL NG
PILIPINAS (BSP), PHILIPPINE
DEPOSIT INSURANCE
CORPORATION (PDIC), PUBLIC
PROSECUTOR ANTONIO C.
BUAN, and STATE
PROSECUTOR ALBERTO R.
FONACIER,
Respondents. 1[1]

CARPIO, J., Chairperson,

CORONA,
BRION,
DEL CASTILLO, and
PEREZ, JJ.
Promulgated:
February 1, 2010

DECISION
A bank officer violates the DOSRI law when he acquires bank funds for his personal benefit, even if such acquisition was facilitated by a fraudulent loan application.
Directors, officers, stockholders, and their related interests cannot be allowed to interpose the fraudulent nature of the loan as a defense to escape culpability for their
circumvention of Section 83 of Republic Act (RA) No. 337. 2[3] Before us is a Petition for Review on Certiorari3[4] under Rule 45 of the Rules of Court, assailing the
September 26, 2003 Decision4[5] and the February 5, 2004 Resolution5 of the Court of Appeals (CA) in CA-G.R. SP No. 67657. The challenged Decision disposed as
follows:
WHEREFORE, premises considered, the instant petition for certiorari is hereby DENIED.6[7]
Factual Antecedents
Sometime in 2000, the Office of Special Investigation (OSI) of the Bangko Sentral ng Pilipinas (BSP), through its officers, transmitted a letter7 dated
March 27, 2000 to Jovencito Zuo, Chief State Prosecutor of the Department of Justice (DOJ). The letter attached as annexes five affidavits, which would
allegedly serve as bases for filing criminal charges for Estafa thru Falsification of Commercial Documents, in relation to Presidential Decree (PD) No. 1689,
and for Violation of Section 83 of RA 337, as amended by PD 1795, against, inter alia, petitioner herein Hilario P. Soriano. These five affidavits, along with
other documents, stated that spouses Enrico and Amalia Carlos appeared to have an outstanding loan of P8 million with the Rural Bank of San Miguel
(Bulacan), Inc. (RBSM), but had never applied for nor received such loan; that it was petitioner, who was then president of RBSM, who had ordered,
facilitated, and received the proceeds of the loan; and that the P8 million loan had never been authorized by RBSM's Board of Directors and no report thereof
had ever been submitted to the Department of Rural Banks, Supervision and Examination Sector of the BSP. The letter of the OSI, which was not subscribed
under oath, ended with a request that a preliminary investigation be conducted and the corresponding criminal charges be filed against petitioner at his last
known address.
Acting on the letter-request and its annexes, State Prosecutor Albert R. Fonacier proceeded with the preliminary investigation. He issued a subpoena with the witnesss
affidavits and supporting documents attached, and required petitioner to file his counter-affidavit. In due course, the investigating officer issued a Resolution finding
probable cause and correspondingly filed two separate informations against petitioner before the Regional Trial Court (RTC) of Malolos, Bulacan.
The first Information, dated November 14, 2000 and docketed as Criminal Case No. 237-M-2001, was for estafa through falsification of commercial documents,
under Article 315, paragraph 1(b), of the Revised Penal Code (RPC), in relation to Article 172 of the RPC and PD 1689. It basically alleged that petitioner and his coaccused, in abuse of the confidence reposed in them as RBSM officers, caused the falsification of a number of loan documents, making it appear that one
Enrico Carlos filled up the same, and thereby succeeded in securing a loan and converting the loan proceeds for their personal gain and benefit.
The information reads:
That in or about the month of April, 1997, and thereafter, in San Miguel, Bulacan, and within the jurisdiction of this Honorable Court, the said accused HILARIO P.
SORIANO and ROSALINDA ILAGAN, as principals by direct participation, with unfaithfulness or abuse of confidence and taking advantage of their position as
President of the Rural Bank of San Miguel (Bulacan), Inc. and Branch Manager of the Rural Bank of San Miguel San Miguel Branch [sic], a duly organized
banking institution under Philippine Laws, conspiring, confederating and mutually helping one another, did then and there, willfully and feloniously falsify loan documents
consisting of undated loan application/information sheet, credit proposal dated April 14, 1997, credit proposal dated April 22, 1997, credit investigation report dated April 15,
1997, promissory note dated April 23, 1997, disclosure statement on loan/credit transaction dated April 23, 1997, and other related documents, by making it appear that
one Enrico Carlos filled up the application/information sheet and filed the aforementioned loan documents when in truth and in fact Enrico Carlos did not
participate in the execution of said loan documents and that by virtue of said falsification and with deceit and intent to cause damage, the accused
succeeded in securing a loan in the amount of eight million pesos (PhP8,000,000.00) from the Rural Bank of San Miguel San Ildefonso branch in the name of
Enrico Carlos which amount of PhP8 million representing the loan proceeds the accused thereafter converted the same amount to their own personal gain and benefit, to

*
1
2
3
4
5
6
7
Page 8 of 81

the damage and prejudice of the Rural Bank of San Miguel San Ildefonso branch, its creditors, the Bangko Sentral ng Pilipinas, and the Philippine Deposit Insurance
Corporation.
CONTRARY TO LAW.8[16]
The other Information dated November 10, 2000 and docketed as Criminal Case No. 238-M-2001, was for violation of Section 83 of RA 337, as amended by PD 1795.
The said provision refers to the prohibition against the so-called DOSRI loans. The information alleged that, in his capacity as President of RBSM, petitioner
indirectly secured an P8 million loan with RBSM, for his personal use and benefit, without the written consent and approval of the bank's Board of Directors, without
entering the said transaction in the bank's records, and without transmitting a copy of the transaction to the supervising department of the bank. His ruse was facilitated by
placing the loan in the name of an unsuspecting RBSM depositor, one Enrico Carlos. The information reads:
That in or about the month of April, 1997, and thereafter, and within the jurisdiction of this Honorable Court, the said accused, in his capacity as President of the Rural Bank
of San Miguel (Bulacan), Inc., did then and there, willfully and feloniously indirectly borrow or secure a loan with the Rural Bank of San Miguel San Ildefonso branch, a
domestic rural banking institution created, organized and existing under Philippine laws, amounting to eight million pesos (PhP8,000,000.00), knowing fully well that the
same has been done by him without the written consent and approval of the majority of the board of directors of the said bank, and which consent and approval the said
accused deliberately failed to obtain and enter the same upon the records of said banking institution and to transmit a copy thereof to the supervising department of the
said bank, as required by the General Banking Act, by using the name of one depositor Enrico Carlos of San Miguel, Bulacan, the latter having no knowledge of the said
loan, and one in possession of the said amount of eight million pesos (PhP8,000,000.00), accused converted the same to his own personal use and benefit, in flagrant
violation of the said law.
CONTRARY TO LAW.
Both cases were raffled to Branch 79 of the RTC of Malolos, Bulacan. On June 8, 2001, petitioner moved to quash this information on two grounds: that the court
had no jurisdiction over the offense charged, and that the facts charged do not constitute an offense. On the first ground, petitioner argued that the letter transmitted by the
BSP to the DOJ constituted the complaint and hence was defective for failure to comply with the mandatory requirements of Section 3(a), Rule 112 of the Rules of Court,
such as the statement of address of petitioner and oath and subscription. Moreover, petitioner argued that the officers of OSI, who were the signatories to the lettercomplaint, were not authorized by the BSP Governor, much less by the Monetary Board, to file the complaint. According to petitioner, this alleged fatal oversight violated
Section 18, pars. (c) and (d) of the New Central Bank Act (RA 7653).On the second ground, petitioner contended that the commission of estafa under paragraph 1(b) of
Article 315 of the RPC is inherently incompatible with the violation of DOSRI law (as set out in Section 839 of RA 337, as amended by PD 1795), hence a person cannot
be charged for both offenses. He argued that a violation of DOSRI law requires the offender to obtain a loan from his bank, without complying with procedural, reportorial,
or ceiling requirements. On the other hand, estafa under par. 1(b), Article 315 of the RPC requires the offender to misappropriate or convert something that he holds in
trust, or on commission, or for administration, or under any other obligation involving the duty to return the same. Essentially, the petitioner theorized that the
characterization of possession is different in the two offenses. If petitioner acquired the loan as DOSRI, he owned the loaned money and therefore, cannot misappropriate
or convert it as contemplated in the offense of estafa. Conversely, if petitioner committed estafa, then he merely held the money in trust for someone else and therefore, did
not acquire a loan in violation of DOSRI rules.
Ruling of the Regional Trial Court
In an Order dated August 8, 2001, the trial court denied petitioner's Motion to Quash for lack of merit. The lower court agreed with the prosecution that the assailed
OSI letter was not the complaint-affidavit itself; thus, it need not comply with the requirements under the Rules of Court. The trial court held that the affidavits,
which were attached to the OSI letter, comprised the complaint-affidavit in the case. Since these affidavits were duly subscribed and sworn to before a notary
public, there was adequate compliance with the Rules. The trial court further held that the two offenses were separate and distinct violations, hence the prosecution of one
did not pose a bar to the other.
Petitioners Motion for Reconsideration was likewise denied in an Order dated September 5, 2001. 10[28] Aggrieved, petitioner filed a Petition for Certiorari11[29] with the
CA, reiterating his arguments before the trial court.
Ruling of the Court of AppealsThe CA denied the petition on both issues presented by petitioner. On the first issue, the CA determined that the BSP letter, which
petitioner characterized to be a fatally infirm complaint, was not actually a complaint, but a transmittal or cover letter only. This transmittal letter merely contained a
summary of the affidavits which were attached to it. It did not contain any averment of personal knowledge of the events and transactions that constitute the
elements of the offenses charged. Being a mere transmittal letter, it need not comply with the requirements of Section 3(a) of Rule 112 of the Rules of Court. 12[30]
The CA further determined that the five affidavits attached to the transmittal letter should be considered as the complaint-affidavits that charged petitioner with violation of
Section 83 of RA 337 and for Estafa thru Falsification of Commercial Documents. These complaint-affidavits complied with the mandatory requirements set out in
the Rules of Court they were subscribed and sworn to before a notary public and subsequently certified by State Prosecutor Fonacier, who personally
examined the affiants and was convinced that the affiants fully understood their sworn statements.
Anent the second ground, the CA found no merit in petitioner's argument that the violation of the DOSRI law and the commission of estafa thru falsification
of commercial documents are inherently inconsistent with each other. It explained that the test in considering a motion to quash on the ground that the facts charged do not
constitute an offense, is whether the facts alleged, when hypothetically admitted, constitute the elements of the offense charged. The appellate court held that this test was
sufficiently met because the allegations in the assailed information, when hypothetically admitted, clearly constitute the elements of Estafa thru Falsification of Commercial
Documents and Violation of DOSRI law.
Petitioners Motion for Reconsideration was likewise denied for lack of merit.
Hence, this petition.
Issue
Restated, petitioner raises the following issues for our consideration:

8
9
10
11
12
Page 9 of 81

I
Whether the complaint complied with the mandatory requirements provided under Section 3(a), Rule 112 of the Rules of Court and Section 18,
paragraphs (c) and (d) of RA 7653.
II
Whether a loan transaction within the ambit of the DOSRI law (violation of Section 83 of RA 337, as amended) could also be the subject of Estafa
under Article 315 (1) (b) of the Revised Penal Code.
III
Is a petition for certiorari under Rule 65 the proper remedy against an Order denying a Motion to Quash?
IV
Whether petitioner is entitled to a writ of injunction.
Our Ruling
The petition lacks merit.
First Issue:
Whether the complaint complied with the mandatory requirements provided under Section 3(a), Rule 112 of the Rules of Court and Section 18, paragraphs (c)
and (d) of
Republic Act No. 7653
Petitioner moved to withdraw the first issue from the instant petition
On March 5, 2007, the Court noted petitioner's Manifestation and Motion for Partial Withdrawal of the Petition dated February 7, 2007. In the said motion,
petitioner informed the Court of the promulgation of a Decision entitled Soriano v. Hon. Casanova, which also involved petitioner and similar BSP letters to the DOJ.
According to petitioner, the said Decision allegedly ruled squarely on the nature of the BSP letters and the validity of the sworn affidavits attached thereto. For this reason,
petitioner moved for the partial withdrawal of the instant petition insofar as it involved the issue of whether or not a court can legally acquire jurisdiction over a complaint
which failed to comply with the mandatory requirements provided under Section 3(a), Rule 112 of the Rules of Court and Section 18, paragraphs (c) and (d) of RA 7653.
Given that the case had already been submitted for resolution of the Court when petitioner filed his latest motion, and that all respondents had presented their positions
and arguments on the first issue, the Court deems it proper to rule on the same.
In Soriano v. Hon. Casanova, the Court held that the affidavits attached to the BSP transmittal letter complied with the mandatory requirements under the Rules of Court.
To be sure, the BSP letters involved in Soriano v. Hon. Casanova are not the same as the BSP letter involved in the instant case. However, the BSP letters in
Soriano v. Hon. Casanova and the BSP letter subject of this case are similar in the sense that they are all signed by the OSI officers of the BSP, they were not sworn to by
the said officers, they all contained summaries of their attached affidavits, and they all requested the conduct of a preliminary investigation and the filing of corresponding
criminal charges against petitioner Soriano. Thus, the principle of stare decisis dictates that the ruling in Soriano v. Hon. Casanova be applied in the instant case once a
question of law has been examined and decided, it should be deemed settled and closed to further argument.
We held in Soriano v. Hon. Casanova, after a close scrutiny of the letters transmitted by the BSP to the DOJ, that these were not intended to be the complaint, as
envisioned under the Rules. They did not contain averments of personal knowledge of the events and transactions constitutive of any offense. The letters
merely transmitted for preliminary investigation the affidavits of people who had personal knowledge of the acts of petitioner. We ruled that these affidavits,
not the letters transmitting them, initiated the preliminary investigation. Since these affidavits were subscribed under oath by the witnesses who executed
them before a notary public, then there was substantial compliance with Section 3(a), Rule 112 of the Rules of Court.
Anent the contention that there was no authority from the BSP Governor or the Monetary Board to file a criminal case against Soriano, we held that the
requirements of Section 18, paragraphs (c) and (d) of RA 7653 did not apply because the BSP did not institute the complaint but merely transmitted the
affidavits of the complainants to the DOJ.
We further held that since the offenses for which Soriano was charged were public crimes, authority holds that it can be initiated by any competent
person with personal knowledge of the acts committed by the offender. Thus, the witnesses who executed the affidavits clearly fell within the purview of any
competent person who may institute the complaint for a public crime. The ruling in Soriano v. Hon. Casanova has been adopted and elaborated upon in the recent
case of Santos-Concio v. Department of Justice. Instead of a transmittal letter from the BSP, the Court in Santos-Concio was faced with an NBI-NCR Report, likewise with
affidavits of witnesses as attachments. Ruling on the validity of the witnesses sworn affidavits as bases for a preliminary investigation, we held:
The Court is not unaware of the practice of incorporating all allegations in one document denominated as complaint-affidavit. It does not pronounce strict adherence to only
one approach, however, for there are cases where the extent of ones personal knowledge may not cover the entire gamut of details material to the alleged offense. The
private offended party or relative of the deceased may not even have witnessed the fatality, in which case the peace officer or law enforcer has to rely chiefly on affidavits of
witnesses. The Rules do not in fact preclude the attachment of a referral or transmittal letter similar to that of the NBI-NCR. Thus, in Soriano v. Casanova, the Court held:
A close scrutiny of the letters transmitted by the BSP and PDIC to the DOJ shows that these were not intended to be the complaint envisioned under the Rules.
It may be clearly inferred from the tenor of the letters that the officers merely intended to transmit the affidavits of the bank employees to the DOJ. Nowhere in the
transmittal letters is there any averment on the part of the BSP and PDIC officers of personal knowledge of the events and transactions constitutive of the criminal
violations alleged to have been made by the accused. In fact, the letters clearly stated that what the OSI of the BSP and the LIS of the PDIC did was to respectfully
transmit to the DOJ for preliminary investigation the affidavits and personal knowledge of the acts of the petitioner. These affidavits were subscribed under oath by the
witnesses who executed them before a notary public. Since the affidavits, not the letters transmitting them, were intended to initiate the preliminary
investigation, we hold that Section 3(a), Rule 112 of the Rules of Court was substantially complied with.
Citing the ruling of this Court in Ebarle v. Sucaldito, the Court of Appeals correctly held that a complaint for purposes of preliminary investigation by the
fiscal need not be filed by the offended party. The rule has been that, unless the offense subject thereof is one that cannot be prosecuted de oficio, the same
may be filed, for preliminary investigation purposes, by any competent person. The crime of estafa is a public crime which can be initiated by any competent
person. The witnesses who executed the affidavits based on their personal knowledge of the acts committed by the petitioner fall within the purview of any competent
person who may institute the complaint for a public crime. x x x (Emphasis and italics supplied)
A preliminary investigation can thus validly proceed on the basis of an affidavit of any competent person, without the referral document, like the NBI-NCR Report,
having been sworn to by the law enforcer as the nominal complainant. To require otherwise is a needless exercise. The cited case of Oporto, Jr. v. Judge Monserate
Page 10 of 81

does not appear to dent this proposition. After all, what is required is to reduce the evidence into affidavits, for while reports and even raw information may justify the
initiation of an investigation, the preliminary investigation stage can be held only after sufficient evidence has been gathered and evaluated which may warrant
the eventual prosecution of the case in court.
Following the foregoing rulings in Soriano v. Hon. Casanova and Santos-Concio v. Department of Justice, we hold that the BSP letter, taken together with the
affidavits attached thereto, comply with the requirements provided under Section 3(a), Rule 112 of the Rules of Court and Section 18, paragraphs (c) and (d) of RA 7653
Second Issue:
Whether a loan transaction within the ambit of the DOSRI law (violation of Section 83 of RA 337, as amended) could be the subject of Estafa under Article 315
(1) (b) of the
Revised Penal Code
The second issue was raised by petitioner in the context of his Motion to Quash Information on the ground that the facts charged do not constitute an offense. It is settled
that in considering a motion to quash on such ground, the test is whether the facts alleged, if hypothetically admitted, would establish the essential elements of the offense
charged as defined by law. The trial court may not consider a situation contrary to that set forth in the criminal complaint or information. Facts that constitute the defense of
the petitioner[s] against the charge under the information must be proved by [him] during trial. Such facts or circumstances do not constitute proper grounds for a motion to
quash the information on the ground that the material averments do not constitute the offense.
We have examined the two informations against petitioner and we find that they contain allegations which, if hypothetically admitted, would establish
the essential elements of the crime of DOSRI violation and estafa thru falsification of commercial documents.
In Criminal Case No. 238-M-2001 for violation of DOSRI rules, the information alleged that petitioner Soriano was the president of RBSM; that he was able to
indirectly obtain a loan from RBSM by putting the loan in the name of depositor Enrico Carlos; and that he did this without complying with the requisite board approval,
reportorial, and ceiling requirements.
In Criminal Case No. 237-M-2001 for estafa thru falsification of commercial documents, the information alleged that petitioner, by taking advantage of his
position as president of RBSM, falsified various loan documents to make it appear that an Enrico Carlos secured a loan of P8 million from RBSM; that petitioner
succeeded in obtaining the loan proceeds; that he later converted the loan proceeds to his own personal gain and benefit; and that his action caused damage and
prejudice to RBSM, its creditors, the BSP, and the PDIC.
Significantly, this is not the first occasion that we adjudge the sufficiency of similarly worded informations. In Soriano v. People,13[45] involving the same
petitioner in this case (but different transactions), we also reviewed the sufficiency of informations for DOSRI violation and estafa thru falsification of commercial
documents, which were almost identical, mutatis mutandis, with the subject informations herein. We held in Soriano v. People that there is no basis for the quashal of the
informations as they contain material allegations charging Soriano with violation of DOSRI rules and estafa thru falsification of commercial documents.
Petitioner raises the theory that he could not possibly be held liable for estafa in concurrence with the charge for DOSRI violation. According to him, the DOSRI charge
presupposes that he acquired a loan, which would make the loan proceeds his own money and which he could neither possibly misappropriate nor convert to the
prejudice of another, as required by the statutory definition of estafa. On the other hand, if petitioner did not acquire any loan, there can be no DOSRI violation to speak of.
Thus, petitioner posits that the two offenses cannot co-exist.
This theory does not persuade us.
Petitioners theory is based on the false premises that the loan was extended to him by the bank in his own name, and that he became the owner of the loan
proceeds. Both premises are wrong.
The bank money (amounting to P8 million) which came to the possession of petitioner was money held in trust or administration by him for the bank, in his fiduciary
capacity as the President of said bank. It is not accurate to say that petitioner became the owner of the P8 million because it was the proceeds of a loan. That would have
been correct if the bank knowingly extended the loan to petitioner himself. But that is not the case here. According to the information for estafa, the loan was supposed to
be for another person, a certain Enrico Carlos; petitioner, through falsification, made it appear that said Enrico Carlos applied for the loan when in fact he (Enrico Carlos) did
not. Through such fraudulent device, petitioner obtained the loan proceeds and converted the same. Under these circumstances, it cannot be said that
petitioner became the legal owner of the P8 million. Thus, petitioner remained the banks fiduciary with respect to that money, which makes it capable of
misappropriation or conversion in his hands.
The next question is whether there can also be, at the same time, a charge for DOSRI violation in such a situation wherein the accused bank officer did not secure a loan
in his own name, but was alleged to have used the name of another person in order to indirectly secure a loan from the bank. We answer this in the affirmative. Section
83 of RA 337 reads:
Section 83. No director or officer of any banking institution shall, either directly or indirectly, for himself or as the representative or agent of others, borrow
any of the deposits of funds of such bank, nor shall he become a guarantor, indorser, or surety for loans from such bank to others, or in any manner be an
obligor for moneys borrowed from the bank or loaned by it, except with the written approval of the majority of the directors of the bank, excluding the director
concerned. Any such approval shall be entered upon the records of the corporation and a copy of such entry shall be transmitted forthwith to the Superintendent of
Banks. The office of any director or officer of a bank who violates the provisions of this section shall immediately become vacant and the director or officer shall be
punished by imprisonment of not less than one year nor more than ten years and by a fine of not less than one thousand nor more than ten thousand pesos. x x x
The prohibition in Section 83 is broad enough to cover various modes of borrowing. It covers loans by a bank director or officer (like herein petitioner) which are made
either: (1) directly, (2) indirectly, (3) for himself, (4) or as the representative or agent of others. It applies even if the director or officer is a mere guarantor, indorser or surety
for someone else's loan or is in any manner an obligor for money borrowed from the bank or loaned by it. The covered transactions are prohibited unless the approval,
reportorial and ceiling requirements under Section 83 are complied with. The prohibition is intended to protect the public, especially the depositors, 14[49] from the
overborrowing of bank funds by bank officers, directors, stockholders and related interests, as such overborrowing may lead to bank failures. 15[50] It has been said that
banking institutions are not created for the benefit of the directors [or officers]. While directors have great powers as directors, they have no special privileges as individuals.
They cannot use the assets of the bank for their own benefit except as permitted by law. Stringent restrictions are placed about them so that when acting both for the bank
and for one of themselves at the same time, they must keep within certain prescribed lines regarded by the legislature as essential to safety in the banking business. 16[51]

13
14
15
16
Page 11 of 81

A direct borrowing is obviously one that is made in the name of the DOSRI himself or where the DOSRI is a named party, while an indirect borrowing includes one that is
made by a third party, but the DOSRI has a stake in the transaction. 17[52] The latter type indirect borrowing applies here. The information in Criminal Case 238-M-2001
alleges that petitioner in his capacity as President of Rural Bank of San Miguel San Ildefonso branch x x x indirectly borrow[ed] or secure[d] a loan with [RBSM] x x x
knowing fully well that the same has been done by him without the written consent and approval of the majority of the board of directors x x x, and which consent and
approval the said accused deliberately failed to obtain and enter the same upon the records of said banking institution and to transmit a copy thereof to the supervising
department of the said bank x x x by using the name of one depositor Enrico Carlos x x x, the latter having no knowledge of the said loan, and once in possession of the
said amount of eight million pesos (P8 million), [petitioner] converted the same to his own personal use and benefit.18[53]
The foregoing information describes the manner of securing the loan as indirect; names petitioner as the benefactor of the indirect loan; and states that the requirements of
the law were not complied with. It contains all the required elements19[54] for a violation of Section 83, even if petitioner did not secure the loan in his own name.
The broad interpretation of the prohibition in Section 83 is justified by the fact that it even expressly covers loans to third parties where the third parties are aware of the
transaction (such as principals represented by the DOSRI), and where the DOSRIs interest does not appear to be beneficial but even burdensome (such as in cases
when the DOSRI acts as a mere guarantor or surety). If the law finds it necessary to protect the bank and the banking system in such situations, it will surely be illogical for
it to exclude a case like this where the DOSRI acted for his own benefit, using the name of an unsuspecting person. A contrary interpretation will effectively allow a DOSRI
to use dummies to circumvent the requirements of the law.
In sum, the informations filed against petitioner do not negate each other.
Third Issue:
Is a Rule 65 petition for certiorari the proper remedy against an Order denying a Motion to Quash?
This issue may be speedily resolved by adopting our ruling in Soriano v. People,20[55] where we held:
In fine, the Court has consistently held that a special civil action for certiorari is not the proper remedy to assail the denial of a motion to quash an information. The proper
procedure in such a case is for the accused to enter a plea, go to trial without prejudice on his part to present the special defenses he had invoked in his motion to quash
and if after trial on the merits, an adverse decision is rendered, to appeal therefrom in the manner authorized by law. Thus, petitioners should not have forthwith filed a
special civil action for certiorari with the CA and instead, they should have gone to trial and reiterated the special defenses contained in their motion to quash. There are no
special or exceptional circumstances in the present case that would justify immediate resort to a filing of a petition for certiorari. Clearly, the CA did not commit any
reversible error, much less, grave abuse of discretion in dismissing the petition.21[56]
Fourth Issue:
Whether petitioner is entitled to a writ of injunction
The requisites to justify an injunctive relief are: (1) the right of the complainant is clear and unmistakable; (2) the invasion of the right sought to be protected is material and
substantial; and (3) there is an urgent and paramount necessity for the writ to prevent serious damage. A clear legal right means one clearly founded in or granted by law
or is enforceable as a matter of law. Absent any clear and unquestioned legal right, the issuance of an injunctive writ would constitute grave abuse of discretion. 22[57]
Caution and prudence must, at all times, attend the issuance of an injunctive writ because it effectively disposes of the main case without trial and/or due process. 23[58] In
Olalia v. Hizon,24[59] the Court held as follows:
It has been consistently held that there is no power the exercise of which is more delicate, which requires greater caution, deliberation and sound discretion, or more
dangerous in a doubtful case, than the issuance of an injunction. It is the strong arm of equity that should never be extended unless to cases of great injury, where courts of
law cannot afford an adequate or commensurate remedy in damages.
Every court should remember that an injunction is a limitation upon the freedom of action of the [complainant] and should not be granted lightly or precipitately. It should be
granted only when the court is fully satisfied that the law permits it and the emergency demands it
Given this Court's findings in the earlier issues of the instant case, we find no compelling reason to grant the injunctive relief sought by petitioner.
WHEREFORE, the petition is DENIED. The assailed September 26, 2003 Decision as well as the February 5, 2004 Resolution of the Court of Appeals in CA-G.R. SP
No. 67657 are AFFIRMED. Costs against petitioner.
SO ORDERED.

17
18
19
20
21
22
23
24
Page 12 of 81

SECOND DIVISION
SAMUEL U. LEE and
MAYBELLE LEE LIM,
Petitioners,
KBC BANK N.V.,
Respondent.

G.R. No. 164673

Present:
Promulgated:
January 15, 2010

The Case
This is a petition for review on certiorari under Rule 45 of the Rules of Court. The petition challenges the 10 February 2004 Decision 25[2] and
27 July 2004 Resolution 26[3] of the Court of Appeals in CA-G.R. SP No. 78004. The Court of Appeals set aside the 26 March 2003 Order 27[4] of the
Regional Trial Court (RTC), National Capital Judicial Region, Branch 58, Makati City, in Criminal Case Nos. 02-344-45.
The Facts
Midas Diversified Export Corporation (MDEC) obtained a $1,400,000 loan from KBC Bank N.V. (KBC Bank). KBC Bank is a Belgian corporation
licensed to do business in the Philippines. On 12 August 1997, Samuel U. Lee (Lee), assistant treasurer and director of MDEC, executed a promissory
note in favor of KBC Bank and a deed of assignment transferring all of MDECs rights over Confirmed Purchase Order No. MTC-548 to KBC Bank.
Confirmed Purchase Order No. MTC-548 was allegedly dated 15 July 1997, issued by Otto Versand, a company based in Germany, and covered a
shipment of girls basic denim jeans amounting to $1,863,050.
MDEC obtained another loan, amounting to $65,000, from KBC Bank. On 14 November 1997, Maybelle L. Lim (Lim), treasurer and
assistant secretary of MDEC, executed a promissory note in favor of KBC Bank and a deed of assignment transferring all of MDECs rights over
Confirmed Purchase Order No. WC-128 to KBC Bank. Confirmed Purchase Order No. WC-128 was allegedly dated 1 October 1997, issued by Otto
Versand, and covered a shipment of boys bermuda jeans amounting to $841,500.
On 23 December 1997, Lim renewed the 12 August 1997 promissory note and issued a notice of renewal and drawdown certificate to KBC
Bank. On 29 December 1997, Lim executed an amended deed of assignment transferring all of MDECs rights over Confirmed Purchase Order No.
MTC-548 to KBC Bank.
MDEC was considered in default in paying the $65,000 loan on 30 January 1998. Under a facility agreement between KBC Bank and
MDEC, any default in payment of any obligation under the agreement would render MDEC in default with regard to the $65,000 loan MDEC defaulted in
paying two other obligations under the agreement. MDEC also failed to pay the $1,400,000 loan when it became due on 9 February 1998.
On 17 March 1998, KBC Bank sent a letter to Otto Versand verifying the validity of Confirmed Purchase Order Nos. MTC-548 and WC-128.
On 19 March 1998, Otto Versand sent a facsimile message to KBC Bank stating that (1) it did not issue the purchase orders, (2) it did not order or
receive the items covered by the purchase orders, and (3) it would not pay MDEC any amount.
In a complaint-affidavit dated 21 April 1998, Liza M. Pajarillo, manager of the corporate division of KBC Bank, charged Lee and Lim of estafa. In his
Resolution dated 27 November 2001, State Prosecutor Josefino A. Subia (State Prosecutor Subia) found the existence of probable cause and
recommended that two counts of estafa be filed against Lee and Lim.
State Prosecutor Subia stated that:
After a careful evaluation of the evidence presented by the Bank, as well as of the respondents, we find the existence of a probable cause
to indict respondents Samuel Lee and Maybelle Lee Lim.
It is an established fact that the confirmed purchase order nos. MTC-548 and WC-128 presented with the Bank by the Midas thru
respondents Samuel Lee and Maybelle Lee Lim were false and spurious, having been unequivocally repudiated and/or disowned by Otto Versand,
Germany, the foreign buyer who allegedly issued the same, as evidenced by a telefax message sent to the Bank by Otto Versand. Evidently,
respondent Samuel Lee signed the following documents, to wit: the conforme portion of the US$2.0 million short-term trade facility, the promissory note
and the corresponding deed of assignment both dated August 12, 1997, covering the confirmed purchase order no[.] MTC-548, while respondent
Maybelle Lee Lim signed in the promissory note and the corresponding deed of assignment both dated Nov. 14, 1997, the renewed promissory note
and the notice of renewal and drawdown certificate both dated Dec. 23, 1997. Respondents Samuel Lee and Maybelle Lee Lim, thus cannot escape
indictment, aside from signing those relevant loan documents, as they also clearly helped one another in fraudulently representing to the Bank that
indeed said confirmed two (2) purchased [sic] orders does [sic] exists [sic] and that Midas have [sic] their [sic] rights, titles and interests thereto. With
their fraudulent representation, they were able to entice or induce the Bank to extend [to] them the loan of USD$1.4 million and USD$ 65,000 under the
short-term trade facility previously granted to them.
Accordingly, two informations for estafa against Lee and Lim were filed with the RTC. After finding probable cause, Judge Winlove M.
Dumayas (Judge Dumayas) of the RTC issued warrants of arrest against Lee and Lim.

25
26
27
Page 13 of 81

Lee and Lim filed a petition for review dated 26 April 2002 with the Department of Justice. Lee and Lim challenged State Prosecutor
Subias 27 November 2001 Resolution and 17 April 2002 Order denying their motion for reconsideration. They claimed that:
I. THE RESOLUTIONS OF 27 NOVEMBER 2001 AND 17 APRIL 2002 MERELY RELIED ON HEARSAY EVIDENCE WHICH CANNOT BE THE BASIS
FOR A FINDING OF A PROBABLE CAUSE.
II. THE ASSAILED RESOLUTIONS WERE ISSUED BASED ONLY ON THE UNCORROBORATED ALLEGATIONS OF PAJARILLO THAT LEE AND
LIM MADE FRAUDULENT REPRESENTATIONS TO [KBC BANK].
III. THE ASSAILED RESOLUTIONS ERRED IN HOLDING LEE AND LIM TO BE CRIMINALLY LIABLE DESPITE THE TWO LOANS CREATING
MERELY CIVIL LIABILITY ON THE PART OF MIDAS.
In his Resolution dated 12 July 2002, Secretary Hernando B. Perez (Secretary Perez) directed the withdrawal of the informations filed
against Lee and Lim. Secretary Perez held that the facsimile message constituted hearsay evidence:
The twin charges of estafa are primarily anchored on respondents alleged fraudulent representations to [KBC Bank] that the two purchase
orders were fake or sham. To prove this point, Ms. Pajarillo of [KBC Bank] claims that she received a fax message from a representative of Otto
Versand, stating that the latter company did not issue the purchase orders mentioned. There was no sworn statement from a responsible officer of Otto
Versand presented to attest to the allegation that the subject purchase orders were fake. Since Ms. Pajarillo did not have personal knowledge of
the fact that the subject purchase orders were in fact fake, her testimony cannot be the basis for finding probable cause against
respondents. Ms. Pajarillo can testify only to those facts that she knew of her personal knowledge. Admittedly, she derived knowledge of the
supposed spurious character of the purchase orders from a mere fax copy of a message that [KBC Bank] received from a certain
representative of Otto Versand in Germany, someone who she did not even know personally. Unfortunately, this fax copy is hearsay evidence
and therefore, inadmissible to prove the truth of what it contains (Pastor vs. Gaspar, 2 Phil 592). (Emphasis supplied)
KBC Bank filed a motion for reconsideration dated 2 August 2002 with the Department of Justice.
Lee and Lim had not been arraigned. In a motion dated 18 October 2002 and filed with the RTC, Assistant City Prosecutor Nora C. Sibucao
(Assistant City Prosecutor Sibucao) prayed for the withdrawal of the informations filed against Lee and Lim. Assistant City Prosecutor Sibucao stated
that:
The Prosecution, through the undersigned Trial Prosecutor, unto the Honorable Court, most respectfully moves and prays for the withdrawal
of Information filed in the above-entitled cases in view of the resolution of the Department of Justice promulgated on July 12, 2002 reversing the
resolution of the City Prosecutor of Makati City.
The RTCs Ruling
In his one-page Order dated 26 March 2003, Judge Dumayas granted Assistant City Prosecutor Sibucaos motion to withdraw the
informations against Lee and Lim. Judge Dumayas held that:
This Court, after an in-depth scrutiny of the arguments raised by the prosecution and private complainant, finds the contentions of the
prosecution to be sufficient and meritorious.
Accordingly, the Motion to Withdraw Information filed by the Prosecution is hereby granted and the two (2) informations for the crime of Estafa
penalized under par. 2 (a) of the Revised Penal Code are hereby withdrawn from the docket of this court. 28[16]
KBC Bank filed with the Court a petition for review on certiorari under Rule 45 of the Rules of Court. KBC Bank claimed that:
I.
The court a quo committed reversible error in issuing the questioned Order without specifying its legal basis.
II.
The court a quo committed reversible error in prematurely acting upon the Makati Prosecutors Motion to Withdraw of Information.
III.
The court a quo committed reversible error in finding that no probable cause exists to hold respondents for trial for estafa under Article 315, par. 2(a)
and in granting the Makati Prosecutors Motion to Withdraw Information.29[18]
In a Resolution dated 23 June 2003, the Court referred the petition to the Court of Appeals pursuant to Section 6, Rule 56 of the Rules of Court. In his
Resolution dated 19 November 2003, Secretary Simeon A. Datumanong denied KBC Banks 2 August 2002 motion for reconsideration.
The Court of Appeals Ruling
In its 10 February 2004 Decision, the Court of Appeals set aside Judge Dumayas 26 March 2003 Order. The Court of Appeals held that:
It has long been established that the filing of a complaint or information in Court initiates a criminal action. The Court thereby acquires
jurisdiction over the case, which is the authority to hear and determine the case. When after the filing of the complaint or information, a warrant
for the arrest of the accused is issued by the trial court and the accused either voluntarily submitted himself to the Court or was duly arrested, the Court
thereby acquired jurisdiction over the person of the accused.
The trial judge practically concurred with the findings of the Secretary of Justice that the fax copy is hearsay evidence and
therefore, inadmissible to prove the truth that it contains, contrary to the well-reasoned findings of the investigating prosecutor. It is

28
29
Page 14 of 81

emphasized that a preliminary investigation is not the occasion for the full and exhaustive display of the parties evidence; it is for the
presentation of such evidence only as may engender a well-grounded belief that an offense has been committed and that the accused is
probably guilty thereof.
The issue of admissibility or inadmissibility of evidence is a matter of defense that is best ventilated in a full-blown trial; preliminary
investigation is not the occasion for the exhaustive display of presentation of evidence.
Hence, the present petition.
The Issues
In their petition, Lee and Lim raised as issues that:
I
THE COURT EXCEEDED ITS AUTHORITY IN PASSING UPON THE ISSUE OF WHETHER OR NOT THERE WAS PRIMA FACIE
EVIDENCE OF ESTAFA AGAINST THE PETITIONERS, AN ISSUE THAT WAS PENDING BEFORE THE SECRETARY OF JUSTICE
II
QUESTION IS NOT ONE OF ADMISSIBILITY OF EVIDENCE BUT THE NEED IN PRELIMINARY INVESTIGATION FOR EVIDENCE OF
VALUE TO ESTABLISH PROBABLE CAUSE
III
RESPONDENT COURT DID NOT PREMATURELY ALLOW THE WITHDRAWAL OF THE INFORMATIONS
IV
THE TRIAL COURT DID NOT ABDICATE ITS DUTY TO DETERMINE THE SUFFICIENCY OF THE PROSECUTIONS REASON FOR
WITHDRAWING THE INFORMATIONS.30[23]
The Courts Ruling
The petition is unmeritorious.
Lee and Lim claim that the Court of Appeals erred when it reviewed the findings of Secretary Perez. They stated that:
[T]he Court of Appeals cannot indirectly review the findings of the Secretary under the pretext of correcting the actuation of the trial court. x x x
[T]he only ruling before the Court of Appeals is the ruling of the trial court x x x.
But the Court of Appeals ignored the fact that the case before it is not one for the review of the final order of the Secretary of Justice, acting
as a quasi-judicial officer, which is governed by Rule 43 of the Rules of Court. The actual case filed with it was rather a petition for review on certiorari of
the dismissal order of the trial court under Rule 45.
The Court is not impressed. The Court of Appeals reviewed Judge Dumayas 26 March 2003 Order, not Secretary Perez 12 July 2002
Resolution. The Court of Appeals held that Judge Dumayas erred when he failed to make his own evaluation and merely relied on Secretary Perez
recommendation that there was no probable cause. The Court of Appeals stated that:
In a more recent case, the Supreme Court ruled that:
A judge acts with grave abuse of discretion when he grants a prosecutors motion to dismiss the criminal charges against an accused on the
basis solely of the recommendation of the Secretary of Justice his reliance on the prosecutors averment that the Secretary of Justice had
recommended the dismissal of the case against the petitioner is an abdication of the trial courts duty and jurisdiction to determine a prima
facie case in blatant violation of the Courts pronouncement in Crespo vs. Mogul.
When the trial judge issued its Order of February 14, 2002 directing the issuance of warrants of arrest against the respondents, he clearly
found probable cause to sustain the filing of criminal complaints against the latter. The issuance of a warrant of arrest is not a ministerial function of
the court it calls for the exercise of judicial discretion on the part of the issuing magistrate.
If the trial court judge finds it appropriate to dismiss the Informations, the same should be based upon his own personal individual conviction
that there is no case against the accused/respondents. To rely solely on the recommendation of the Secretary of Justice, to say the least, is an
abdication of the judge[]s duty and jurisdiction to determine a prima facie case. What was imperatively required was the trial judges own
assessment of just evidence, it not being sufficient for the valid and proper exercise of judicial discretion merely to accept the prosecutions
word for its supposed insufficiency.
Lee and Lim claim that the Court of Appeals erred when it ruled that the admissibility of the facsimile message is a matter best
ventilated in a full-blown trial. They stated that:
At any rate, the Court of Appeals also said in its decision that the issue of admissibility of evidence assailed as hearsay is a matter of defense
to be ventilated in a full blown trial. It held that preliminary investigation is not the occasion for exhaustive display of evidence and the issue of
admissibility or inadmissibility of evidence is a matter of defense to be ventilated at the trial.
But the Secretary of Justices rejection of the fax copy of Otto Versands letter as hearsay evidence merely affirmed petitioners right to due
process in a preliminary investigation. x x x

30
Page 15 of 81

Ms. Pajarillo authenticated it by stating under oath that she received it. The cause for its rejection is the fact that its contents are purely hearsay since
Ms. Pajarillo who testified about them had no personal knowledge of the fact that the purchase orders were false. The author of the fax message did not
swear under oath to the truth of the statement in the document contrary to what section 3 (e) of Rule 112 mandates.
The Office of the Solicitor General agreed with the petitioners. In the comment dated October 28, 2003 that it filed with the Court of Appeals, it
said:
20. In this case, the Secretary of Justices realistic judicial appraisal of the merits of petitioners complaint-affidavit show that its evidence
of estafa is insufficient for lack of proof of the requisite element of deceit. So much so that if the case were tried, the trial court would be bound to
order an acquittal.
The Court is not impressed. Whether the facsimile message is admissible in evidence and whether the element of deceit in the crime of
estafa is present are matters best ventilated in a full-blown trial, not in the preliminary investigation. In Andres v. Justice Secretary Cuevas,31[27] the
Court held that:
[A preliminary investigation] is not the occasion for the full and exhaustive display of [the prosecutions] evidence. The presence or absence
of the elements of the crime is evidentiary in nature and is a matter of defense that may be passed upon after a full-blown trial on the merits.
In fine, the validity and merits of a partys defense or accusation, as well as the admissibility of testimonies and evidence, are better ventilated
during trial proper than at the preliminary investigation level. (Emphasis supplied)
Lee and Lim claim that the Court of Appeals erred when it ruled that Judge Dumayas failed to make his own evaluation and merely
relied on Secretary Perez recommendation that there was no probable cause. They stated that:
Contrary to the Court of Appeals ruling, the trial court made an effort to evaluate the merit of the prosecutions motion to withdraw the
informations. It evaluated the merits of both the prosecutions motion and respondent banks opposition to the motion. x x x
Clearly, it cannot be said that the trial court abandoned its responsibility of making an independent assessment of the sufficiency
of the prosecution motion [sic]. Indeed, it scrutinized the arguments of respondent bank just as it did the arguments of the prosecution in order to
determine for itself whether or not the withdrawal of the informations was warranted. 32[29]
The Court is not impressed. Judge Dumayas failed to make his own evaluation in granting the motion to withdraw the informations. Judge
Dumayas 26 March 2003 Order states in full:
This Court, after an in-depth scrutiny of the arguments raised by the prosecution and private complainant, finds the contentions of the
prosecution to be sufficient and meritorious.
Accordingly, the Motion to Withdraw Information filed by the Prosecution is hereby granted and the two (2) informations for the crime of Estafa
penalized under par. 2 (a) of the Revised Penal Code are hereby withdrawn from the docket of this court.
In Co v. Lim,33[30] the Court held that:
Once a case is filed with the court, any disposition of it rests on the sound discretion of the court. The trial court is not bound to adopt the resolution of
the Secretary of Justice, since it is mandated to independently evaluate or assess the merits of the case. Reliance on the resolution of the Secretary of
Justice alone would be an abdication of its duty and jurisdiction to determine a prima facie case. The trial court may make an independent assessment
of the merits of the case based on the affidavits and counter-affidavits, documents, or evidence appended to the Information; the records of the public
prosecutor, which the court may order the latter to produce before the court; or any evidence already adduced before the court by the accused at the
time the motion is filed by the public prosecutor.
[T]HE TRIAL JUDGE DID NOT POSITIVELY STATE THAT THE EVIDENCE PRESENTED AGAINST THE RESPONDENTS WAS INSUFFICIENT
FOR A PRIMA FACIE CASE, NOR DID THE AFOREQUOTED ORDER INCLUDE A DISCUSSION OF THE MERITS OF THE CASE BASED ON AN
EVALUATION OR ASSESSMENT OF THE EVIDENCE ON RECORD. IN OTHER WORDS, THE DISMISSAL OF THE CASE WAS BASED UPON
CONSIDERATIONS OTHER THAN THE JUDGES OWN PERSONAL INDIVIDUAL CONVICTION THAT THERE WAS NO CASE AGAINST THE
RESPONDENTS. THUS, THE TRIAL JUDGE IMPROPERLY RELINQUISHED THE DISCRETION THAT HE WAS BOUND TO EXERCISE, AND THE
ORDERS DATED 11 FEBRUARY 2004 AND 29 JUNE 2004 ARE INVALID FOR HAVING BEEN ISSUED IN GRAVE ABUSE OF DISCRETION.
(EMPHASIS SUPPLIED)
IN BALTAZAR V. CHUA,34[31] THE COURT HELD THAT:
CONSIDERING THAT THE TRIAL COURT HAS THE POWER AND DUTY TO LOOK INTO THE PROPRIETY OF THE PROSECUTIONS MOTION TO
DISMISS, WITH MUCH MORE REASON IS IT FOR THE TRIAL COURT TO EVALUATE AND TO MAKE ITS OWN APPRECIATION AND
CONCLUSION, WHETHER THE MODIFICATION OF THE CHARGES AND THE DROPPING OF ONE OF THE ACCUSED IN THE INFORMATION, AS
RECOMMENDED BY THE JUSTICE SECRETARY, IS SUBSTANTIATED BY EVIDENCE. THIS SHOULD BE THE STATE OF AFFAIRS, SINCE THE
DISPOSITION OF THE CASE SUCH AS ITS CONTINUATION OR DISMISSAL OR EXCLUSION OF AN ACCUSED IS REPOSED IN THE SOUND
DISCRETION OF THE TRIAL COURT.
IN THE CASE UNDER CONSIDERATION, THE CITY PROSECUTOR INDICTED JAIME AND JOVITO FOR THE CRIMES OF MURDER
AND FRUSTRATED MURDER. HOWEVER, UPON REVIEW, THE SECRETARY OF JUSTICE DOWNGRADED THE CHARGES TO HOMICIDE AND
FRUSTRATED HOMICIDE. THE SECRETARY ALSO DROPPED JAIME FROM THE CHARGES. THIS RESOLUTION PROMPTED THE CITY

31
32
33
34
Page 16 of 81

PROSECUTOR TO FILE A MANIFESTATION AND MOTION FOR THE WITHDRAWAL OF THE INFORMATIONS FOR MURDER AND FRUSTRATED
MURDER AND FOR THE ADMISSION OF NEW INFORMATIONS FOR HOMICIDE AND FRUSTRATED HOMICIDE AGAINST JOVITO ONLY, WHICH
WAS GRANTED BY JUDGE CRUZ IN HIS ORDER DATED 18 NOVEMBER 1997. JUDGE CRUZ, HOWEVER, FAILED TO MAKE AN
INDEPENDENT ASSESSMENT OF THE MERITS OF THE CASES AND THE EVIDENCE ON RECORD OR IN THE POSSESSION OF THE PUBLIC
PROSECUTOR. IN GRANTING THE MOTION OF THE PUBLIC PROSECUTOR TO WITHDRAW THE INFORMATIONS, THE TRIAL COURT NEVER
MADE ANY ASSESSMENT WHETHER THE CONCLUSIONS ARRIVED AT BY THE SECRETARY OF JUSTICE WAS SUPPORTED BY EVIDENCE.
IT DID NOT EVEN TAKE A LOOK AT THE BASES ON WHICH THE JUSTICE SECRETARY DOWNGRADED THE CHARGES AGAINST JOVITO
AND EXCLUDED JAIME THEREFROM.35[32] (EMPHASIS SUPPLIED)
IN ARK TRAVEL EXPRESS V. THE PRESIDING JUDGE OF MAKATI,36[33] THE COURT HELD THAT:
IT IS SETTLED THAT WHEN CONFRONTED WITH A MOTION TO WITHDRAW INFORMATION ON THE GROUND OF LACK OF PROBABLE
CAUSE BASED ON A RESOLUTION OF THE SECRETARY OF THE DEPARTMENT OF JUSTICE, THE BOUNDEN DUTY OF THE TRIAL COURT IS
TO MAKE AN INDEPENDENT ASSESSMENT OF THE MERITS OF SUCH MOTION. HAVING ACQUIRED JURISDICTION OVER THE CASE, THE
TRIAL COURT IS NOT BOUND BY SUCH RESOLUTION BUT IS REQUIRED TO EVALUATE IT BEFORE PROCEEDING FURTHER WITH THE
TRIAL AND SHOULD EMBODY SUCH ASSESSMENT IN THE ORDER DISPOSING THE MOTION.
THE SUBJECT MTC ORDERS DO NOT SHOW THAT THE MTC MADE AN INDEPENDENT ASSESSMENT OF THE MERITS OF THE
MOTION TO WITHDRAW INFORMATIONS. X X X
THE MTC SHOULD HAVE MADE AN INDEPENDENT EVALUATION AND EMBODIED ITS ASSESSMENT IN AT LEAST ONE OF ITS
ASSAILED ORDERS.37[34] (EMPHASIS SUPPLIED)
IN LEDESMA V. COURT OF APPEALS,38[35] THE COURT HELD THAT:
ONCE A COMPLAINT OR INFORMATION IS FILED IN COURT, ANY DISPOSITION OF THE CASE SUCH AS ITS DISMISSAL OR ITS
CONTINUATION RESTS ON THE SOUND DISCRETION OF THE COURT. TRIAL JUDGES ARE THUS REQUIRED TO MAKE THEIR OWN
ASSESSMENT OF WHETHER THE SECRETARY OF JUSTICE COMMITTED GRAVE ABUSE OF DISCRETION IN GRANTING OR DENYING THE
APPEAL, SEPARATELY AND INDEPENDENTLY OF THE PROSECUTIONS OR THE SECRETARYS EVALUATION THAT SUCH EVIDENCE IS
INSUFFICIENT OR THAT NO PROBABLE CAUSE TO HOLD THE ACCUSED FOR TRIAL EXISTS. THEY SHOULD EMBODY SUCH ASSESSMENT
IN THEIR WRITTEN ORDER DISPOSING OF THE MOTION.
THE TRIAL COURTS ORDER IS INCONSISTENT WITH OUR REPETITIVE CALLS FOR AN INDEPENDENT AND COMPETENT ASSESSMENT OF
THE ISSUE(S) PRESENTED IN THE MOTION TO DISMISS. THE TRIAL JUDGE WAS TASKED TO EVALUATE THE SECRETARYS
RECOMMENDATION FINDING THE ABSENCE OF PROBABLE CAUSE TO HOLD PETITIONER CRIMINALLY LIABLE FOR LIBEL. HE FAILED TO
DO SO. HE MERELY RULED TO PROCEED WITH THE TRIAL WITHOUT STATING HIS REASONS FOR DISREGARDING THE SECRETARYS
RECOMMENDATION.39[36] (EMPHASIS SUPPLIED)
IN THE PRESENT CASE, JUDGE DUMAYAS, IN HIS 26 MARCH 2003 ORDER, DID NOT (1) POSITIVELY STATE THAT THE EVIDENCE AGAINST
LEE AND LIM IS INSUFFICIENT, (2) INCLUDE A DISCUSSION OF THE MERITS OF THE CASE, (3) ASSESS WHETHER SECRETARY PEREZS
CONCLUSION IS SUPPORTED BY EVIDENCE, (4) LOOK AT THE BASIS OF SECRETARY PEREZS RECOMMENDATION, (5) EMBODY HIS
ASSESSMENT IN THE ORDER, AND (6) STATE HIS REASONS FOR GRANTING THE MOTION TO WITHDRAW THE INFORMATIONS.
JUDGE DUMAYAS FAILURE TO MAKE HIS OWN EVALUATION OF THE MERITS OF THE CASE VIOLATES KBC BANKS RIGHT TO
DUE PROCESS AND CONSTITUTES GRAVE ABUSE OF DISCRETION. JUDGE DUMAYAS 26 MARCH 2003 ORDER GRANTING THE MOTION
TO WITHDRAW THE INFORMATIONS IS VOID.
WHEREFORE, THE PETITION IS DENIED. THE COURT AFFIRMS THE 10 FEBRUARY 2004 DECISION AND 27 JULY 2004
RESOLUTION OF THE COURT OF APPEALS IN CA-G.R. SP NO. 78004. THE CASE IS REMANDED TO THE REGIONAL TRIAL COURT, NATIONAL
CAPITAL JUDICIAL REGION, BRANCH 58, MAKATI CITY FOR EVALUATION ON WHETHER PROBABLE CAUSE EXISTS TO HOLD THE
ACCUSED FOR TRIAL.
SO ORDERED.

35
36
37
38
39
Page 17 of 81

SECOND DIVISION
[G.R. No. 150185. May 27, 2004]
TERESITA TANGHAL OKABE, petitioner, vs. HON. PEDRO DE LEON GUTIERREZ, in his capacity as Presiding Judge of RTC, Pasay City,
Branch 119; PEOPLE OF THE PHILIPPINES; and CECILIA MARUYAMA, respondents.
Before us is a petition for review on certiorari, under Rule 45 of the Rules of Court, as amended, that part of the Decision 40[1] of the Court of Appeals in
CA-G.R. SP No. 60732 dismissing her petition for certiorari under Rule 65 of the Rules of Court, as amended, for the nullification of the August 25 and
28, 2000 Orders of the respondent judge in Criminal Case No. 00-0749.
The Antecedents
Cecilia Maruyama executed a fifteen-page affidavit-complaint and filed the same with the Office of the City Prosecutor of Pasay City, on December
29, 1999, charging Lorna Tanghal and petitioner Teresita Tanghal Okabe, a.k.a. Shiela Okabe, with estafa. In her affidavit, Maruyama alleged, inter
alia, that on December 11, 1998, she entrusted Y11,410,000 with the peso equivalent of P3,993,500 to the petitioner, who was engaged in the
business of door-to-door delivery from Japan to the Philippines. It was alleged that the petitioner failed to deliver the money as agreed upon,
and, at first, denied receiving the said amount but later returned only US$1,000 through Lorna Tanghal.
During the preliminary investigation, the complainant, respondent Maruyama, submitted the affidavit of her witnesses, namely, Hermogena Santiago,
Wilma Setsu and Marilette G. Izumiya and other documentary evidence. In her affidavit, Setsu alleged that the money which was entrusted to the
petitioner for delivery to the Philippines belonged to her and her sister Annie Hashimoto, and their mother Hermogena Sanchez-Quicho, who
joined respondent Maruyama in her complaint against petitioner Okabe and Tanghal. Respondent Maruyama, likewise, submitted a reply to the
petitioners counter-affidavit. After the requisite preliminary investigation, 2nd Assistant City Prosecutor Joselito J. Vibandor came out with a
resolution dated March 30, 2000, finding probable cause for estafa against the petitioner. Attached to the resolution, which was submitted to the city
prosecutor for approval, was the Information against the petitioner and Maruyamas affidavit-complaint. The city prosecutor approved the resolution and
the Information dated March 30, 2000 attached thereto.
On May 15, 2000, Information against the petitioner was filed in the Regional Trial Court of Pasay City, docketed as Criminal Case No. 00-0749. The
case was raffled to Branch 119 of the court presided by Judge Pedro de Leon Gutierrez.41[7] The accusatory portion of the Information reads:
That on or about December 12, 1998 in Pasay City, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused defrauded Cecilia Maruyama and Conchita Quicho, complainant herein, in the following manner, to wit: said accused received in trust from
Cecilia Maruyama the amount of Japanese Yen 1141 (sic) with peso equivalent to P3,839,465.00 under obligation to deliver the money to Conchita
Quicho at the NAIA International Airport, Pasay City, immediately upon accused arrival from Japan, but herein accused once in possession of the same,
did, then and there willfully, unlawfully and feloniously misappropriate and convert to her own personal benefit the said amount, and despite demands
accused failed and refused to do so, to the damage and prejudice of the complainants in the aforesaid amount.
Contrary to law.
Appended to the Information were the affidavit-complaint of respondent Maruyama and the resolution of Investigating Prosecutor Vibandor. On May 19,
2000, the trial court issued a warrant for the arrest of the petitioner with a recommended bond of P40,000. On June 15, 2000, the petitioner posted a
personal bail bond in the said amount, duly approved by Judge Demetrio B. Macapagal, the Presiding Judge of Branch 79 of the RTC of Quezon City,
who forthwith recalled the said warrant. The approved personal bail bond of the petitioner was transmitted to the RTC of Pasig City on June 21, 2000.
Upon her request, the petitioner was furnished with a certified copy of the Information, the resolution and the criminal complaint which formed part of
the records of the said case. The petitioner left the Philippines for Japan on June 17, 2000 without the trial courts permission, and returned to the
Philippines on June 28, 2000. She left the Philippines anew on July 1, 2000, and returned on July 12, 2000.
On July 14, 2000, the trial court issued an Order setting the petitioners arraignment and pre-trial at 2:00 p.m. of July 16, 2000. On the same day, the
private prosecutor filed an urgent ex parte motion for the issuance of the hold departure order, alleging as follows:
3.It has come to the knowledge of private complainant that there is an impending marriage within the Philippines of either the son or daughter of the
above-named accused and that the above-named accusedwho has businesses in Japan, and is presently in Japanwill soon exit Japan and enter the
Philippines to precisely attend said wedding;
4.
Given [a] the bail was fixed at merely P40,000.00 and b] the considerable financial capability of the accused, it is a foregone conclusion that
the above-named accused will, upon arrest, readily and immediately post bond, and leave for Japanthereby frustrating and rendering inutile the
administration of criminal justice in our country. The speed with which accused Teresita Sheila Tanghal Okabe can post bond and leave for
Japaneffectively evading arraignment and pleathus necessitates the immediate issuance of a Hold Departure Order even before her arrival here in the
Philippines;42[9]
The trial court issued an order on the same day, granting the motion of the private prosecutor for the issuance of a hold departure order and ordering
the Commission on Immigration and Deportation (CID) to hold and prevent any attempt on the part of the petitioner to depart from the Philippines. 43[10]
For her part, the petitioner filed on July 17, 2000 a verified motion for judicial determination of probable cause and to defer proceedings/arraignment,

40
41
42
43
Page 18 of 81

alleging that the only documents appended to the Information submitted by the investigating prosecutor were respondent Maruyamas affidavitcomplaint for estafa and the resolution of the investigating prosecutor; the affidavits of the witnesses of the complainant, the respondents counteraffidavit and the other evidence adduced by the parties were not attached thereto. The petitioner further alleged that the documents submitted by the
investigating prosecutor were not enough on which the trial court could base a finding of probable cause for estafa against her. She further averred that
conformably to the rulings of this Court in Lim v. Felix44[11] and Roberts, Jr. v. Court of Appeals it behooved the investigating prosecutor to submit the
following to the trial court to enable it to determine the presence or absence of probable cause: (a) copies of the affidavits of the witnesses of the
complainant; (b) the counter-affidavit of Okabe and those of her witnesses; (c) the transcripts of stenographic notes taken during the preliminary
investigation; and, (d) other documents presented during the said investigation.
On July 19, 2000, the petitioner filed a Very Urgent Motion To Lift/Recall Hold Departure Order dated July 17, 2000 and/or allow her to regularly travel to
Japan alleging, thus:
3.Accused is (sic) widow and the legitimate mother of three (3) children, two (2) of whom are still minors, namely:
3.1.
Okabe, Jeffrey-18 years old born on 13 August 1981.
3.2.
Okabe, Masatoshi-14 years old and born on 16 October 1985, 3rd year High School student at Hoshikuki, Chiba City, Matsugaoka, High
School, residing at Chiba City, Chuo-Ku, Yahagi-cho, 205, Telephone No. 043-224-5804.
3.3.
Okabe, Tomoki-13 years old and born on 13 March 1986, 2nd year High School student at Hoshikuki, Chiba City, Matsugaoka, High School,
residing at Chiba City, Chuo-Ku, Yahagi-cho, 205, Telephone No. 043-224-5804.
3.4.
The accused has to attend the Parents Teachers Association (PTA) at the Hoshikuki High School where her two (2) minor sons aforesaid are
presently enrolled and studying because Okabe, Masatoshis graduation will take place on 26 July 2000.
3.5.
The two (2) minor children of the accused absolutely depend their support (basic necessities) for foods, clothings, medicines, rentals,
schooling and all other expenses for their survival to their legitimate mother who is the accused herein.
3.6.
The issuance of the hold departure order (HDO) will impair the inherent custodial rights of the accused as the legitimate mother over these
two (2) minor children which is repugnant to law.
3.7.
The issuance of the hold departure order (HDO) will unduly restrict the accused to her custodial rights and visitation over her aforesaid minor
children who are permanently living in Japan.
3.8.
The issuance of the hold departure order (HDO) will unduly deprived (sic) these minor children to their right to obtain education and survival.
4.
Accuseds only source of income and livelihood is door-to-door delivery from Japan to the Philippines and vice versa which has been taking
place for a very long period of time and in the process she has been constantly departing from the Philippines on a weekly basis and arriving in Japan
on the same frequency, as evidenced by xerox copies of the pages of her Philippine Passports which are hereto attached as Annexes A, A-1, A-2 up to
A-30, respectively. To deprive her of this only source of her livelihood to which the aforesaid two (2) minor children are deriving their very survival in a
foreign land will (sic) tantamount to oppression rather than prosecution and depriving the said minor sons of their right to live even before trial on the
merits of this case that will (sic) tantamount to the destruction of the future of these minor children.45[13]
The private prosecutor opposed the petitioners motions during the hearing on July 21, 2000 which was also the date set for her arraignment. The
hearing of the motions as well as the arraignment was reset to 2:00 p.m. of July 26, 2000. On the said date, the petitioner filed a manifestation objecting
to her arraignment prior to the resolution of her pending motions. She alleged that her arraignment for the crime charged should not be made a
condition for the granting of her motion to recall the hold departure order issued against her. The arraignment of the petitioner was again reset to 2:00
p.m. of August 28, 2000, pending the resolution of her two motions. On August 25, 2000, the petitioner filed a motion for the postponement of her
arraignment alleging that, in case the trial court ruled adversely thereon, she would refuse to enter a plea and seek relief from the appellate court. The
court denied the petitioners motions on the following grounds:
(a)Based on its personal examination and consideration of the Information, the affidavit-complaint of respondent Maruyama and the resolution of the
investigating prosecutor duly approved by the city prosecutor, the court found probable cause for the petitioners arrest. Since the petitioners motion for
a determination of probable cause was made after the court had already found probable cause and issued a warrant for the petitioners arrest, and after
the latter filed a personal bail bond for her provisional liberty, such motion was a mere surplusage;
(b)
When the petitioner posted a personal bail bond for her provisional liberty, she thereby waived her right to question the courts finding of the
existence of probable cause for her arrest and submitted herself to the jurisdiction of the court, more so when she filed the motion for the lifting of the
hold departure order the court issued, and the motion to defer the proceedings and her arraignment; and
(c)
The hold departure order issued by the trial court was in accord with Supreme Court Circular No. 39-97 dated June 19, 1997, as well as the
ruling of this Court in Manotoc, Jr. v. Court of Appeals.46[14]
When the case was called for the petitioners arraignment at 2:00 p.m., on August 28, 2000, she refused to plead. 47[15] Her counsel advised her, in open
court, not to enter a plea and, with leave of court, left the courtroom. The court then entered a not guilty plea for the petitioner. 48[16] It also issued an
order, on the said date, setting the pre-trial and initial presentation of the evidence of the prosecution at 8:30 a.m. of September 20, 2000. 49[17]
The petitioner then filed with the Court of Appeals a petition for certiorari under Rule 65 of the Rules of Court with a plea for a writ of preliminary
injunction. The case was docketed as CA-G.R. SP No. 60732. The petitioner ascribed the following errors to the trial court:
I
RESPONDENT COURT GRAVELY ERRED WHEN IT ISSUED
WARRANT OF ARREST DESPITE OF (SIC) LACK
OF PROBABLE CAUSE
II
RESPONDENT COURT HAS VIOLATED THE
RIGHT OF THE PETITIONER TO DUE PROCESS
III
RESPONDENT COURT HAS ALREADY PRE-JUDGED
THE CONVICTION OF THE PETITIONER FOR ESTAFA

44
45
46
47
48
49
Page 19 of 81

IV
RESPONDENT COURT HAS EXHIBITED ITS APPARENT
PARTIALITY TOWARDS THE PROSECUTION AND
AGAINST THE PETITIONER
V
RESPONDENT COURT GRAVELY ERRED WHEN IT DENIES (SIC) THE MOTION FOR JUDICIAL DETERMINATION OF PROBABLE CAUSE
PURSUANT TO THE DOCTRINE OF ROBERTS, JR.
VI
RESPONDENT COURT GRAVELY ERRED WHEN IT DENIES (SIC)
THE LIFTING/RECALL OF THE HDO AND/OR ALLOWING THE
PETITIONER TO TRAVEL TO JAPAN REGULARLY FOR
HUMANITARIAN CONSIDERATION
VII
RESPONDENT COURT COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF JURISDICTION
WHEN IT ISSUED THE QUESTIONED ORDERS50[18]
On January 31, 2001, the CA rendered a Decision 51[19] partially granting the petition in that the assailed order of the trial court denying the petitioners
motion to lift/recall the hold departure order was set aside. However, the petitioners motion for reconsideration of the trial courts decision was denied
and her petition for the nullification of the August 25, 2000 Order of the respondent judge was dismissed. The CA ruled that by posting bail and praying
for reliefs from the trial court, the petitioner waived her right to assail the respondent judges finding of the existence of probable cause. The appellate
court cited the ruling of this Court in Cojuangco, Jr. v. Sandiganbayan.52[20] Thus, the appellate court affirmed the assailed order of the RTC, based on
the respondent judges personal examination of respondent Maruyamas affidavit-complaint, the resolution of the investigating prosecutor and the
Information approved by the city prosecutor, a finding of probable cause was in order. However, the appellate court allowed the petitioner to travel to
Japan under the following conditions:
(1)That petitioner post a bond double the amount of her alleged monetary liability under the Information filed against her, as recommended by the Office
of the Solicitor General;
(2)
That petitioner inform respondent Court of each and all of her travel itinerary prior to leaving the country;
(3)
That petitioner make periodic reports with respondent Court;
(4)
That petitioner furnish respondent Court with all the addresses of her possible place of residence, both here and in Japan; and
(5)
Such other reasonable conditions which respondent Court may deem appropriate under the circumstances. 53[21]
The appellate court did not resolve the issue of whether the trial court had prejudged the case and was partial to the prosecution. The decretal portion
of the decision of the CA reads:
WHEREFORE, premises considered, the instant special civil action for certiorari is hereby PARTIALLY GRANTED insofar as the denial of petitioners
Motion to Lift/Recall Hold Departure Order dated 14 July, 2000 and/or Allow the accused to Regularly Travel to Japan is concerned. In all other respect,
the same is hereby DENIED.
SO ORDERED.54[22]
On March 6, 2001, the petitioner filed a motion for a partial reconsideration of the decision of the CA contending that the appellate court erred in
applying the ruling of this court in Cojuangco, Jr. v. Court of Appeals55[23] instead of Section 26, Rule 114 of the Revised Rules on Criminal Procedure.
The petitioner posited that the said rule, which took effect on December 1, 2000, before the court rendered its decision, had superseded the ruling of
this Court in the Cojuangco case. However, the appellate court held that Section 26, Rule 114 of the Revised Rules on Criminal Procedure cannot be
applied retroactively, because the petitioner had posted bail on June 15, 2000 before the Revised Rules on Criminal Procedure took effect.
Hence, the instant petition for review on certiorari for the reversal of the decision and resolution of the CA and praying that after due proceedings,
judgment be rendered in her favor, thus:
WHEREFORE, it is respectfully prayed of this Honorable Supreme Court that after due proceedings, judgment be rendered in favor of the petitioner and
against the respondents as follows:
(a)GIVING DUE COURSE to the instant petition;
(b)
ORDERING the REVERSAL and PARTIALLY SETTING ASIDE of the Decision promulgated on 31 January 2001 (Annex A hereof) of the
Honorable Court of Appeals in CA-G.R. SP No. 60732 as well as its Resolution promulgated on 27 September 2001 (Annex B hereof);
(c)
ORDERING the DISMISSAL of Crim. Case No. 00-0749 for lack of probable cause;
(d)
DECLARING the entire proceedings in Crim. Case No. 00-0749 as null and void;
(e)
ORDERING the private respondents to pay the petitioners the following amount:
(i)
at least P1,000,000.00 as moral damages;
(ii)
at least P1,000,000.00 as exemplary damages;
(iii)
at least P500,000.00 as attorneys fees and for other expenses of litigation.
(f)
ORDERING the private respondent to pay the costs of this suit.
(g)
Petitioner further prays for such other reliefs just and equitable under the premises.56[24]
The petitioner asserts that the CA committed the following reversible errors:
I

50
51
52
53
54
55
56
Page 20 of 81

THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR WHEN IT COMPLETELY DISREGARDED THE APPLICATION OF
SECTION 26, RULE 114 OF THE REVISED RULES ON CRIMINAL PROCEDURE WHICH TOOK EFFECT ON 01 DECEMBER 2000 WHICH IS
FAVORABLE TO THE PETITIONER/ACCUSED.
II
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR IN RULING THAT WHATEVER INFIRMITY THERE WAS IN THE
ISSUANCE OF THE WARRANT OF ARREST, THE SAME WAS CURED WHEN PETITIONER VOLUNTARILY SUBMITTED TO THE RESPONDENT
COURTS JURISDICTION WHEN SHE POSTED BAIL AND FILED MOTIONS SEEKING AFFIRMATIVE RELIEF SUCH AS MOTION TO LIFT/RECALL
HOLD DEPARTURE ORDER AND TO ALLOW PETITIONER TO TRAVEL REGULARLY TO JAPAN (Last paragraph, Page 9 DECISION dated 31
January 2001).
III
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR WHEN IT RELIED UPON THE RULING IN THE CASE OF COJUANGCO,
JR. VS. SANDIGANBAYAN, [300 SCRA 367 (1998)] WHEN IN FACT SAID RULING IS NOW OBSOLETE AND NO LONGER APPLICABLE.
IV
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR IN RULING THAT RESPONDENT COURT COMPLIED WITH THE
CONSTITUTIONAL REQUIREMENTS ON THE ISSUANCE OF WARRANT OF ARREST WITHOUT PROBABLE CAUSE, WHEN THE RESPONDENT
COURT MERELY RELIED ON [THE] (i) COMPLAINT-AFFIDAVIT OF CECILIA MARUYAMA; (ii) RESOLUTION OF THE INVESTIGATING
PROSECUTOR; AND (iii) CRIMINAL INFORMATION.
V
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR WHEN IT FAILED TO RULE ON THE PARTIALITY OF THE RESPONDENT
JUDGE IN HANDLING THE CASE BELOW WHICH IS VIOLATIVE OF THE PETITIONERS RIGHT TO DUE PROCESS.
VI
THE FILING OF CRIM. CASE NO. 4297 (MTC, ANGAT, BULACAN) FOR ESTAFA ENTITLED PEOPLE VS. SHEILA OKABE; CIVIL CASE NO. 331-M98 (RTC, MALOLOS, BULACAN) FOR SUM OF MONEY WITH PRELIMINARY ATTACHMENT ENTITLED CONCHITA SANCHEZ-QUICHO VS.
SHEILA TERESITA TANGHAL OKABE; AND CRIM. CASE NO. 00-07-19 (RTC, PASAY CITY, BRANCH 119) ENTITLED PEOPLE VS. TERESITA
TANGHAL OKABE CONSTITUTE A VIOLATION OF THE RULE ON NON-FORUM SHOPPING. 57[25]
By way of comment, the Office of the Solicitor General refuted the petitioners assigned errors, contending as follows:
I
The Court of Appeals did not commit a reversible error in not applying Section 26, Rule 114 of the Revised Rules on Criminal Procedure.
II
The Court of Appeals did not commit a reversible error in ruling that the infirmity, if any, in the issuance by the respondent Judge of the warrant of arrest
against petitioner was cured when petitioner voluntarily submitted to the trial courts jurisdiction when she posted bail and filed motions seeking for
affirmative reliefs from the trial court, such as the motion to lift/recall Hold Departure Order (HDO) and to allow petitioner to travel regularly to Japan.
III
The Court of Appeals did not commit a reversible error in applying the ruling in the Cojuangco case.
IV
The Court of Appeals did not commit a reversible error in finding that respondent Judge complied with the constitutional requirements on the issuance
of a warrant of arrest.
V
The Court of Appeals did not commit a reversible error when it did not rule on the partiality of the respondent Judge in handling Criminal Case No. 000749.
VI
The Honorable Court of Appeals did not commit a reversible error when it did not rule on petitioners claim of forum shopping. 58[26]
The Court shall resolve the assigned errors simultaneously as they are interrelated.
The petitioner asserts that the respondent judge could not have determined the existence of probable cause for her arrest solely on the resolution of the
investigating prosecutor and the undated affidavit-complaint of respondent Maruyama. She posits that the respondent judge should have ordered the
investigating prosecutor to submit the affidavits of the witnesses of respondent Maruyama and the latters documentary evidence, as well as the
counter-affidavit of the petitioner and the transcripts of the stenographic notes, if any, taken during the preliminary investigation. The petitioner adds that
the respondent judge should have personally reviewed the said documents, conformably to the rulings of this Court in Lim v. Felix,59[27] Roberts, Jr. v.
Court of Appeals60[28] and Ho v. People,61[29] before determining the presence or absence of probable cause. She posits that the respondent judge
acted with grave abuse of discretion amounting to excess or lack of jurisdiction in denying her motion for a determination of probable cause, and the
alternative motion for a dismissal of the case against her for lack of probable cause.
The petitioner further asserts that the appellate court erred in affirming the ruling of the respondent judge that, by posting a personal bail bond for her
provisional liability and by filing several motions for relief, she thereby voluntarily submitted herself to the jurisdiction of the trial court and waived her
right to assail the infirmities that infected the trial courts issuance of the warrant for her arrest. She avers that the appellate courts reliance on the ruling
of this Court in Cojuangco, Jr. v. Sandiganbayan62[30] is misplaced, and submits that the appellate court should have applied Section 26, Rule 114 of
the Revised Rules of Court retroactively, as it rendered the ruling of this Court in the Cojuangco, Jr. case obsolete.
The Office of the Solicitor General, on the other hand, asserts that the respondent judge did not commit any grave abuse of discretion when he found
probable cause against the petitioner for estafa, and thereafter issued a warrant for her arrest. It argues that the respondent judge personally
determined the existence of probable cause independently of the certification of the investigating prosecutor, and only after examining the Information,
the resolution of the investigating prosecutor, as well as the affidavit-complaint of the private complainant. It asserts that such documents are sufficient
on which to anchor a finding of probable cause. It insists that the appellate court correctly applied the ruling of this Court in the Cojuangco, Jr. v. Court

57
58
59
60
61
62
Page 21 of 81

of Appeals case, and that the respondent judge complied with both the requirements of the constitution and those set forth in the Rules of Court before
issuing the said warrant.63[31]
We agree with the contention of the petitioner that the appellate court erred in not applying Section 26, Rule 114 of the Revised Rules on Criminal
Procedure, viz:
SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation. An application for or admission to bail shall not bar
the accused from challenging the validity of his arrest or the legality of the warrant issued therefor, or from assailing the regularity or questioning the
absence of a preliminary investigation of the charge against him, provided that he raises them before entering his plea. The court shall resolve the
matter as early as practicable but not later than the start of the trial of the case.
It bears stressing that Section 26, Rule 114 of the Revised Rules on Criminal Procedure is a new one, intended to modify previous rulings of this Court
that an application for bail or the admission to bail by the accused shall be considered as a waiver of his right to assail the warrant issued for his arrest
on the legalities or irregularities thereon. 64[32] The new rule has reverted to the ruling of this Court in People v. Red.65[33] The new rule is curative in
nature because precisely, it was designed to supply defects and curb evils in procedural rules. Hence, the rules governing curative statutes are
applicable. Curative statutes are by their essence retroactive in application. 66[34] Besides, procedural rules as a general rule operate retroactively, even
without express provisions to that effect, to cases pending at the time of their effectivity, in other words to actions yet undetermined at the time of their
effectivity.67[35] Before the appellate court rendered its decision on January 31, 2001, the Revised Rules on Criminal Procedure was already in effect. It
behooved the appellate court to have applied the same in resolving the petitioners petition for certiorari and her motion for partial reconsideration.
Moreover, considering the conduct of the petitioner after posting her personal bail bond, it cannot be argued that she waived her right to question the
finding of probable cause and to assail the warrant of arrest issued against her by the respondent judge. There must be clear and convincing proof that
the petitioner had an actual intention to relinquish her right to question the existence of probable cause. 68[36] When the only proof of intention rests on
what a party does, his act should be so manifestly consistent with, and indicative of, an intent to voluntarily and unequivocally relinquish the particular
right that no other explanation of his conduct is possible. 69[37] In this case, the records show that a warrant was issued by the respondent judge in
Pasay City for the arrest of the petitioner, a resident of Guiguinto, Bulacan. When the petitioner learned of the issuance of the said warrant, she posted
a personal bail bond to avert her arrest and secure her provisional liberty. Judge Demetrio B. Macapagal of the RTC of Quezon City approved the bond
and issued an order recalling the warrant of arrest against the petitioner. Thus, the posting of a personal bail bond was a matter of imperative necessity
to avert her incarceration; it should not be deemed as a waiver of her right to assail her arrest. So this Court ruled in People v. Red:70[38]
The present defendants were arrested towards the end of January, 1929, on the Island and Province of Marinduque by order of the judge of the Court
of First Instance of Lucena, Tayabas, at a time when there were no court sessions being held in Marinduque. In view of these circumstances and the
number of the accused, it may properly be held that the furnishing of the bond was prompted by the sheer necessity of not remaining in detention, and
in no way implied their waiver of any right, such as the summary examination of the case before their detention. That they had no intention of waiving
this right is clear from their motion of January 23, 1929, the same day on which they furnished a bond, and the fact that they renewed this petition on
February 23, 1929, praying for the stay of their arrest for lack of the summary examination; the first motion being denied by the court on January 24,
1929 (G.R. No. 33708, page 8), and the second remaining undecided, but with an order to have it presented in Boac, Marinduque.
Therefore, the defendants herein cannot be said to have waived the right granted to them by section 13, General Order No. 58, as amended by Act No.
3042.71[39]
Moreover, the next day, or on June 16, 2000, the petitioner, through counsel, received certified true copies of the Information, the resolution of the
investigating prosecutor, the affidavit-complaint of the private complainant, respondent Maruyama, and a certification from the branch clerk of court that
only the Information, resolution and affidavit-complaint formed part of the entire records of the case. The next day, June 17, 2000, the petitioner, through
counsel, filed a verified motion for judicial determination of probable cause and to defer the proceedings and her arraignment. All the foregoing are
inconsistent with a waiver of her right to assail the validity of her arrest and to question the respondent judges determination of the existence of
probable cause for her arrest.
Neither can the petitioners filing of a motion for the lifting of the hold departure order and for leave to go to Japan be considered a waiver of her right to
assail the validity of the arrest warrant issued by the respondent judge. It bears stressing that when the petitioner filed the motion to lift the hold
departure order issued against her by the respondent judge, her motion for a determination of probable cause was still unresolved. She sought a lifting
of the hold departure order on July 14, 2000 and filed a motion for leave to go to Japan, to give the respondent judge an opportunity to reconsider the
said order, preparatory to assailing the same in the appellate court in case her motion was denied.
The issue that now comes to fore is whether or not the respondent judge committed a grave abuse of his discretion amounting to excess or lack of
jurisdiction in issuing his August 25, 2000 Order. By grave abuse of discretion is meant such patent and gross abuse of discretion as to amount to an
evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in
an arbitrary and despotic manner by reasons of passion or personal hostility.72[40] Hence, when the court has jurisdiction over the case, its questioned

63
64
65
66
67
68
69
70
71
72
Page 22 of 81

acts, even if its findings are not correct, would at most constitute errors of law and not abuse of discretion correctible by the extraordinary remedy of
certiorari.73[41]
We agree with the petitioner that before the RTC judge issues a warrant of arrest under Section 6, Rule 112 of the Rules of Court 74[42] in relation to
Section 2, Article III of the 1987 Constitution, the judge must make a personal determination of the existence or non-existence of probable cause for the
arrest of the accused. The duty to make such determination is personal and exclusive to the issuing judge. He cannot abdicate his duty and rely on the
certification of the investigating prosecutor that he had conducted a preliminary investigation in accordance with law and the Rules of Court, as
amended, and found probable cause for the filing of the Information.
Under Section 1, Rule 112 of the Rules on Criminal Procedure, the investigating prosecutor, in conducting a preliminary investigation of a case
cognizable by the RTC, is tasked to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed
and the respondent therein is probably guilty thereof and should be held for trial. A preliminary investigation is for the purpose of securing the innocent
against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of a crime, from the trouble, expense and
anxiety of a public trial.75[43]
If the investigating prosecutor finds probable cause for the filing of the Information against the respondent, he executes a certification at the bottom of
the Information that from the evidence presented, there is a reasonable ground to believe that the offense charged has been committed and that the
accused is probably guilty thereof. Such certification of the investigating prosecutor is, by itself, ineffective. It is not binding on the trial court. Nor may
the RTC rely on the said certification as basis for a finding of the existence of probable cause for the arrest of the accused. 76[44]
In contrast, the task of the presiding judge when the Information is filed with the court is first and foremost to determine the existence or non-existence
of probable cause for the arrest of the accused. Probable cause is meant such set of facts and circumstances which would lead a reasonably discreet
and prudent man to believe that the offense charged in the Information or any offense included therein has been committed by the person sought to be
arrested.77[45] In determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of the rules of
evidence of which he has no technical knowledge. He relies on common sense. 78[46] A finding of probable cause needs only to rest on evidence
showing that more likely than not a crime has been committed and that it was committed by the accused. Probable cause demands more than bare
suspicion, it requires less than evidence which would justify conviction.79[47]
The purpose of the mandate of the judge to first determine probable cause for the arrest of the accused is to insulate from the very start those falsely
charged of crimes from the tribulations, expenses and anxiety of a public trial:
It must be stressed, however, that in these exceptional cases, the Court took the extraordinary step of annulling findings of probable cause either to
prevent the misuse of the strong arm of the law or to protect the orderly administration of justice. The constitutional duty of this Court in criminal
litigations is not only to acquit the innocent after trial but to insulate, from the start, the innocent from unfounded charges. For the Court is aware of the
strains of a criminal accusation and the stresses of litigation which should not be suffered by the clearly innocent. The filing of an unfounded criminal
information in court exposes the innocent to severe distress especially when the crime is not bailable. Even an acquittal of the innocent will not fully
bleach the dark and deep stains left by a baseless accusation for reputation once tarnished remains tarnished for a long length of time. The expense to
establish innocence may also be prohibitive and can be more punishing especially to the poor and the powerless. Innocence ought to be enough and
the business of this Court is to shield the innocent from senseless suits right from the start.80[48]
In determining the existence or non-existence of probable cause for the arrest of the accused, the RTC judge may rely on the findings and conclusions
in the resolution of the investigating prosecutor finding probable cause for the filing of the Information. After all, as the Court held in Webb v. De Leon,81
[49] the judge just personally reviews the initial determination of the investigating prosecutor finding a probable cause to see if it is supported by
substantial evidence.82[50] However, in determining the existence or non-existence of probable cause for the arrest of the accused, the judge should not
rely solely on the said report. 83[51] The judge should consider not only the report of the investigating prosecutor but also the affidavit/affidavits and the
documentary evidence of the parties, the counter-affidavit of the accused and his witnesses, as well as the transcript of stenographic notes taken during
the preliminary investigation, if any, submitted to the court by the investigating prosecutor upon the filing of the Information. 84[52] Indeed, in Ho v.
People,85[53] this Court held that: Lastly, it is not required that the complete or entire records of the case during the preliminary investigation be
submitted to and examined by the judge. We do not intend to unduly burden trial courts by obliging them to examine the complete records of every case
all the time simply for the purpose of ordering the arrest of an accused. What is required, rather, is that the judge must have sufficient supporting

73
74
75
76
77
78
79
80
81
82
83
84
Page 23 of 81

documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcripts of stenographic notes, if any) upon which
to make his independent judgment or, at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause. The
point is: he cannot rely solely and entirely on the prosecutors recommendation, as Respondent Court did in this case. Although the prosecutor enjoys
the legal presumption of regularity in the performance of his official duties and functions, which in turn gives his report the presumption of accuracy, the
Constitution, we repeat, commands the judge to personally determine probable cause in the issuance of warrants of arrest. This Court has consistently
held that a judge fails in his bounden duty if he relies merely on the certification or the report of the investigating officer.86[54]
The rulings of this Court are now embedded in Section 8(a), Rule 112 of the Revised Rules on Criminal Procedure which provides that an Information or
complaint filed in court shall be supported by the affidavits and counter-affidavits of the parties and their witnesses, together with the other supporting
evidence of the resolution:
SEC. 8. Records. (a) Records supporting the information or complaint. An information or complaint filed in court shall be supported by the affidavits and
counter-affidavits of the parties and their witnesses, together with the other supporting evidence and the resolution on the case.
If the judge is able to determine the existence or non-existence of probable cause on the basis of the records submitted by the investigating prosecutor,
there would no longer be a need to order the elevation of the rest of the records of the case. However, if the judge finds the records and/or evidence
submitted by the investigating prosecutor to be insufficient, he may order the dismissal of the case, or direct the investigating prosecutor either to
submit more evidence or to submit the entire records of the preliminary investigation, to enable him to discharge his duty. 87[55] The judge may even call
the complainant and his witness to themselves answer the courts probing questions to determine the existence of probable cause. 88[56] The rulings of
this Court in Soliven v. Makasiar89[57] and Lim v. Felix90[58] are now embodied in Section 6, Rule 112 of the Revised Rules on Criminal Procedure, with
modifications, viz:
SEC. 6. When warrant of arrest may issue. (a) By the Regional Trial Court. Within ten (10) days from the filing of the complaint or information, the judge
shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record
clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already
been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed
pursuant to section 7 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional
evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of
information.
In this case, the investigating prosecutor submitted to the respondent judge only his resolution after his preliminary investigation of the case and the
affidavit-complaint of the private complainant, and failed to include the affidavits of the witnesses of the private complainant, and the latters reply
affidavit, the counter-affidavit of the petitioner, as well as the evidence adduced by the private complainant as required by case law, and now by Section
8(a), Rule 112 of the Revised Rules on Criminal Procedure. The aforecited affidavits, more specifically the fax message of Lorna Tanghal and the
document signed by her covering the amount of US$1,000, are of vital importance, as they would enable the respondent judge to properly determine
the existence or non-existence of probable cause.
First. When respondent Maruyama handed the money to the petitioner, she did not require the latter to sign a document acknowledging receipt of the
amount. The petitioner avers that it is incredible that Maruyama would entrust P3,993,500 in Japanese Yen to her without even requiring her to sign a
receipt therefor, especially since respondent Maruyama was not even the owner of the money;
Second. The affidavit of Hermogena Santiago, a witness of the respondent, is unreliable, because it is based on information relayed to her by Lorna
Tanghal that she (Tanghal) saw the petitioner carrying a Louis Vuitton bag while on board a Mitsubishi L300 van with the petitioner. It appears that
Tanghal failed to submit any counter-affidavit to the investigating prosecutor;
Third. The affidavit of Marilette G. Izumiya, another witness of the respondent, is also unreliable, as it was based on information relayed to her by
Thelma Barbiran, who used to work for the petitioner as a housemaid, that she (Barbiran) had in her possession a fax message from Lorna Tanghal,
implicating the petitioner in the crime charged. Barbiran did not execute any affidavit;
Fourth. There is no indication in the resolution of the investigating prosecutor that the petitioner received the fax message of Lorna Tanghal;
Fifth. The private complainant claims that the petitioner tried to reimburse the P3,993,500 by remitting US$1,000 to her. However, the latter admitted in
her affidavit-complaint that the document evidencing the remittance was signed by Lorna Tanghal, not by the petitioner. The petitioner claimed that
Lorna Tanghal had to remit US$1,000 to respondent Maruyama because the latter made it appear to Tanghal that the police authorities were about to
arrest the petitioner, and Tanghal was impelled to give the amount to respondent Maruyama to avert her arrest and incarceration;
Sixth. In her counter-affidavit, the petitioner alleged that respondent Maruyama had no case against her because the crime charged in the latters
affidavit-complaint was the same as that filed against her in the Metropolitan Trial Court of Bulacan, which was withdrawn by the complainant herself;
Seventh. The investigating prosecutor stated in his resolution that the private complainant established the element of deceit. However, the crime
charged against the petitioner as alleged in the Information is estafa with abuse of confidence.
In sum, then, we find and so declare that the respondent judge committed a grave abuse of his discretion amounting to excess or lack of jurisdiction in
finding probable cause for the petitioners arrest in the absence of copies of the affidavits of the witnesses of the private complainant and her reply
affidavit, the counter-affidavit of the petitioner, and the evidence adduced during the preliminary investigation before the investigating prosecutor.
In view of the foregoing disquisitions, there is no more need to resolve the other issues raised by the petitioner.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed decision of the Court of Appeals is REVERSED and SET ASIDE. The
assailed Orders dated August 25 and 28, 2000 and the Warrant of Arrest issued by the respondent judge in Criminal Case No. 00-0749 are SET ASIDE.
The records are REMANDED to the Regional Trial Court of Pasay City, Branch 119. The respondent judge is hereby DIRECTED to determine the
existence or non-existence of probable cause for the arrest of the petitioner based on the complete records, as required under Section 8(a), Rule 112 of
the Revised Rules on Criminal Procedure.
SO ORDERED.

85
86
87
88
89
90
Page 24 of 81

THIRD DIVISION
PEOPLE OF THE PHILIPPINES,
Plaintiff-Appellee,

G.R. No. 186471

Present:

- versus RODANTE DE LEON y DELA ROSA,

Accused-Appellant.

CORONA, J., Chairperson,

VELASCO, JR.,
NACHURA,
PERALTA, and
MENDOZA, JJ.
Promulgated:
January 25, 2010

The Case
This is an appeal from the April 4, 2008 Decision 91[1] of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 01811 entitled People of the Philippines v.
Rodante De Leon y Dela Rosa which affirmed the December 20, 2005 Decision 92[2] in Criminal Case Nos. Q-03-122555-56 of the Regional Trial Court
(RTC), Branch 82 in Quezon City. The RTC found accused-appellant Rodante De Leon guilty of violation of Sections 5 and 11, Article II of Republic Act
No. (RA) 9165 or the Comprehensive Dangerous Drugs Act of 2002.
The Facts
The charges against appellant stemmed from the following Informations:
Criminal Case No. Q-03-122555
(Violation of Section 5 [Sale], Article II of RA 9165)
That on or about the 9th day of November, 2003, in the Quezon City, Philippines, the said accused, not being authorized by law, to sell, dispense,
deliver, transport or distribute of any dangerous drug, did, then and there, wilfully and unlawfully sell, dispense, deliver, transport, distribute or act as
broker in the said transaction zero point sixteen (0.16) gram of methamphetamine hydrochloride a dangerous drug.
Contrary to law.93[3]

91
92
93
Page 25 of 81

Criminal Case No. Q-03-122556

(Violation of Section 11 [Possession], Article II of RA 9165)
That on or about the 9th day of November, 2003, in the Quezon City, Philippines, the said accused, not being authorized by law, to possess or use any
dangerous drug, did, then and there, wilfully, unlawfully and knowingly have in his/her possession and control zero point eighteen (0.18) gram of
methamphetamine hydrochloride, a dangerous drug.
Contrary to law.94[4]
On February 16, 2004, appellant was arraigned and pleaded not guilty to the charge against him. After the pre-trial conference, trial on the merits
ensued.
During the trial, the parties agreed to stipulate on the testimonies of Engr. Leonard Jabonillo, the Forensic Chemist, and Police Officer 1 (PO1) Oliver
Estrelles, the police investigator of these cases. The prosecution thereafter presented PO2 Noel Magcalayo as its witness. The defense, on the other
hand, presented Rodante De Leon, the accused himself.
The trial court summarized the stipulation of Engr. Jabonillo, as follows:
x x x that he is a Forensic Chemist of the Philippine National Police, that his Office received the request for laboratory examination marked as Annex A;
that together with the said request was a plastic sachet marked as Exh. B which contained two (2) plastic sachets marked as Exhibits B-1 and B-2; that
he conducted the requested laboratory examination and, in connection therewith he submitted a Chemistry Report marked as Exhibit C, the finding
thereon showing the specimen positive for Methylamphetamine Hydrochloride was marked as Exhibit C-1 and the signature of said police officer was
marked as Exhibit C-2; that he then issued a Certification marked as Exhibits D and D-1 and thereafter turned over the specimen to the evidence
custodian x x x. (Order dated September 14, 2004).95[5]
Also, as regards PO1 Estrelles, the following was agreed upon:
x x x that he was the investigator of these cases and in connection with the investigation conducted by him, he received the evidence, namely: the Joint
Affidavit of Apprehension executed by PO2 Noel Magcalayo and PO2 Cesar Collado marked as Exhibit E and E-1; that likewise prepared the request
for examination marked as Exhibit A and submitted the specimen to the Crime Laboratory and receive the Chemistry Report marked as Exhibit C; that
he received the Pre-Operation Report marked as Exhibit E as well as the buy bust money marked as Exhibits F and F-1, that he prepared the letter
request to the City Prosecutor Office marked as Exhibit G; and that Exhibit A contains superimposition of the date thereof. (Order dated September 14,
2004).96[6]
The Prosecutions Version of Facts
On November 9, 2003, at about 5 o clock in the afternoon, a confidential informant arrived at the office of the Station Anti-Illegal Drug Special Operation
Task Force at the Novaliches Police Station in Quezon City and reported the illegal activities of a person named Rodante De Leon.
Thereafter, Police Senior Inspector (P/SInsp.) Nilo Wong formed a team for a buy-bust operation with PO2 Magcalayo as poseur-buyer and Senior
Police Officer 3 (SPO3) Mario Concepcion, PO2 Fernando Salonga, PO2 Cesar Collado, PO2 Edmund Paculdar, and PO1 Emeterio Mendoza as team
members. A pre-operation report was prepared. P/SInsp. Wong then handed to PO2 Magcalayo two (2) pieces of PhP 100 bills as buy-bust money and
on which PO2 Magcalayo wrote his initials NM.
At around 6:30 p.m. in the evening, the team proceeded to Sarmiento St., Barangay Sta. Monica, Novaliches, Quezon City, where the confidential
informant introduced PO2 Magcalayo to appellant as a buyer of shabu. PO2 Magcalayo then asked appellant if he had shabu and the latter answered
in the affirmative and asked him how much he would buy. PO2 Magcalayo handed the money and, in return, appellant handed him one (1) plastic
sachet containing white crystalline substance. He then scratched his head, which was the pre-arranged signal that the transaction was consummated,
and thereafter arrested appellant. He recovered the buy-bust money from appellant as PO2 Collado approached them and handcuffed appellant. Upon
frisking appellant, PO2 Collado discovered another plastic sachet on the person of appellant.
Afterwards, appellant was brought to the police station for investigation. PO2 Collado then placed his initials on the sachet he found on appellant. The
evidence was subsequently turned over to the police investigator, PO1 Estrelles, who prepared a request for its laboratory examination.
PO2 Collado, PO1 Mendoza, PO2 Paculdar, and PO2 Magcalayo then brought the transparent plastic sachets containing the white crystalline
substance subject of the buy-bust operation to the Philippine National Police (PNP) Crime Laboratory, Eastern Police District on St. Francis Street,
Mandaluyong City for examination. Engr. Jabonillo, a Forensic Chemical Officer, conducted a qualitative examination on the specimens, which yielded
positive results for Methylamphetamine Hydrochloride, a dangerous drug. He issued Chemistry Report No. D-1240-2003 dated November 9, 2003,
which showed the following results:
SPECIMEN SUBMITTED:
Two (2) heat-sealed transparent plastic sachets each containing white crystalline substance having the following markings and recorded net
weights:
A (NM) = 0.16 gm
B (CC) = 0.18 gm
xxxx
PURPOSE OF LABORATORY EXAMINATION:

94
95
96
Page 26 of 81

To determine the presence of dangerous drugs.

xxxx
FINDINGS:
Qualitative examination conducted on the above-stated specimens gave POSITIVE result to the test for Methylamphetamine Hydrochloride, a
dangerous drug. x x x
CONCLUSION:
Specimen A and B contain Methylamphetamine Hydrochloride, a dangerous drug. x x x
Version of the Defense
On the other hand, appellant testified that, prior to his arrest, he was a police officer of Station 7, Araneta, Cubao, Quezon City and had been connected
with the PNP for 10 years. On November 9, 2003, at around 3 oclock in the afternoon, he went to Sarmiento St., Barangay Sta. Monica, Novaliches,
Quezon City to look for a kumpadre from whom he intended to borrow money when policemen accosted him and poked their guns at him. The people
around him ran, and as he was the only one left on the scene, the policemen asked him to sit down. He told SPO3 Concepcion, whom he knew, that he
was a police officer but he was told to shut up and to explain his side at the police station instead.
Upon arrival at the police station in Novaliches, Quezon City, his wallet, with his I.D. and police badge, were taken from him. PO2 Magcalayo told him
that he had a fake police I.D. When appellant tried to explain himself, PO2 Magcalayo allegedly kicked him saying, Hindi na uso ang pulis, sundalo na
ang nakaupo ngayon.
The following night, he was presented on inquest during which he was charged with violation of Secs. 5 and 11 of RA 9165. He denied all the charges
against him claiming that the alleged shabu marked as Exhibits B-1 and B-2 came from the arresting police officers. He did not file a case against them,
because he had no money and because he knew that he was not guilty.
On cross-examination, appellant further testified that he was a follow-up operative at the Station Investigation Division of Police Station 7. He admitted
that he was separated from the service because he was absent without official leave due to a business problem he had to attend to. He likewise said
that he did not know his arresting officers, whom he saw then for the first time, and that he was not familiar with RA 9165.
Ruling of the Trial Court
After trial, the RTC convicted appellant. The dispositive portion of its Decision reads:
WHEREFORE, premises considered, judgment is hereby rendered as follows:
Re: Criminal Case NO. Q-03-122555, the Court finds accused RODANTE DE LEON y DELA ROSA guilty beyond reasonable doubt of a violation of
Section 5, Article II of R.A. No. 9165 otherwise known as the Comprehensive Dangerous Drugs Act of 2002, and hereby sentences him to suffer the
penalty of life imprisonment and to pay a fine in the amount of P500,000.00;
Re: Criminal Case NO. Q-03-122556, the Court finds accused RODANTE DE LEON y DELA ROSA guilty beyond reasonable doubt of a violation of
Section 11, Article II of R.A. No. 9165 otherwise known as the Comprehensive Dangerous Drugs Act of 2002, and hereby sentences him to suffer the
indeterminate penalty of twelve (12) years and one (1) day as minimum to fifteen (15) years and one (1) day as maximum and to pay a fine in the
amount of P300,000.00;
SO ORDERED.97[7]
On appeal to the CA, appellant disputed the trial courts decision finding him guilty beyond reasonable doubt of the crimes charged. He argued that the
alleged buy-bust operation conducted by the police officers was tainted with irregularities and that the prosecution failed to prove the chain of custody of
the evidence.
Ruling of the Appellate Court
On April 4, 2008, the CA affirmed the judgment of the trial court. The dispositive portion of its Decision reads:
WHEREFORE, premises considered, the appeal is DENIED for lack of merit. The Decision dated 20 December 2005 of the Regional Trial Court of
Quezon City, Branch 82 finding accused-appellant Rodante De Leon y Dela Rosa guilty beyond reasonable doubt in Criminal Case No. Q-03-122555
for violation of Section 5, Article II of Republic Act No. 9165 and sentencing him to suffer the penalty of life imprisonment and to pay a fine in the amount
of P500,000.00, and in Criminal Case No. Q-03-122556 for violation of Section 11, Article II of R.A. No. 9165 otherwise known as the Comprehensive
Dangerous Drugs Act of 2002, sentencing him to suffer the indeterminate penalty of twelve (12) years and one (1) day as minimum to fifteen (15) years
and one (1) day as maximum and to pay a fine in the amount of P300,000.00, is AFFIRMED.
SO ORDERED.98[8]
Appellant filed a timely notice of appeal of the decision of the CA.
The Issues

97
98
Page 27 of 81

Appellant assigns the following errors:

I.
The trial court gravely erred in ignoring the fact that the prosecution failed to prove the chain of custody of the alleged confiscated items from the
accused-appellant.
II.
The trial court gravely erred in finding the accused-appellant guilty of the crimes charged despite the failure of the prosecution to prove his guilt beyond
reasonable doubt.

Our Ruling
We sustain appellants conviction.
Guilt of Appellant Was Proved Beyond Reasonable Doubt
Appellant assails his conviction by contending that the trial court failed to prove his guilt beyond reasonable doubt. According to him, the trial court
erroneously convicted him on the basis of the evidence of the prosecution despite a question of the legality of the buy-bust operation. Further, he
asserts that the trial court relied on the disputable presumption of regularity in the performance of the police function, despite the police officers violated
the rule on chain of custody of the alleged confiscated items.
The contentions are unmeritorious.
It is a fundamental rule that findings of the trial court which are factual in nature and which involve the credibility of witnesses are accorded with respect,
when no glaring errors, gross misapprehension of facts, and speculative, arbitrary, and unsupported conclusions can be gathered from such findings. 99
[9] The reason for this is that the trial court is in a better position to decide the credibility of witnesses having heard their testimonies and observed their
deportment and manner of testifying during the trial.100[10]
After a thorough examination of the entire records of this case, this Court has failed to identify any error committed by the trial court in its appreciation of
the evidence presented before it and in the conclusion it reached.
In the prosecution for the crime of illegal sale of prohibited drugs, the Court has reiterated the essential elements in People v. Pendatun, to wit: (1) the
accused sold and delivered a prohibited drug to another; and (2) he knew that what he had sold and delivered was a prohibited drug. 101[11] Therefore,
what is material is the proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of the corpus delicti.102[12]
Corpus delicti is the body or substance of the crime, and establishes the fact that a crime has actually been committed. It has two elements, namely: (1)
proof of the occurrence of a certain event; and (2) some persons criminal responsibility for the act.103[13]
In the instant case, the prosecution sufficiently established the elements of the crime. Appellant sold and delivered the shabu for PhP 200 to PO2
Magcalayo posing as buyer; the said drug was seized and identified as a prohibited drug and subsequently presented in evidence; there was actual
exchange of the marked money and contraband; and finally, appellant was fully aware that he was selling and delivering a prohibited drug. In fact, PO2
Magcalayo testified, thus:
Q: Mr. Witness, on November 9, 2003, did you report for duty?
A:Yes, sir.
Q:
What happened when you reported for duty?
A:
Our confidential informant personally appeared in our station and reporting to us the alleged drug pushing activity of Rodante De Leon.
Q:
What time was that when this confidential informant arrived at your office?
A:
Around 5:00 p.m., sir.
Q:
What happened when this confidential informant relayed to you the information about this Rodante De Leon?
A:
Our Chief sir, formed a team for possible buy bust operation.
COURT:
A:

Who formed?
P/Sr. Inspector Nilo Wong, your honor.

PROS. ANTERO:
Who composed this team?
A:
Us, sir. SPO3 Mario Concepcion, PO2 Fernando Salonga, PO2 Cesar Collado, PO2 Edmund Paculdar and PO1 Emeterio Mendoza, your
Honor.
Q:
What happened when this team was formed, Mr. Witness?
A:
We proceeded to Sarmiento Street, sir, for buy bust operation.

99
100
101
102
103
Page 28 of 81

COURT:
A:

Were you among the team?

Yes, your Honor.

PROS. ANTERO:
Prior to the dispatch to conduct that buy-bust operation, what happened, if any?
A:
We prepared the pre-operation report and our Chief handed to me the two (2) pieces of P100.00 bills as buy bust money.
Q: What did you do with that two (2) P100.00 bills?
A:
Before we were dispatched, I put my initial on the buy-bust money.
Q:
What initial?
A:
NM, sir.
Q:
What [does] NM stand for?
A:
Noel Magcalayo, sir.
Q:
I am showing you these two (2) P100.00 bills, kindly examine the same whether you know those P100.00 bills?
A:
These are the buy bust money that we used in the operation, sir.
xxxx
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:

What happened after you were given these buy bust money?
We proceeded to Sarmiento Street, Barangay Sta. Monica, Novaliches, Quezon City.
What time was that when you proceeded there?
At around 6:30 in the afternoon, sir.
What happened, Mr. Witness?
We were able to meet Rodante De Leon.
How did you meet this Rodante De Leon?
By the help of our confidential informant, sir.
Can you tell this Hon. Court how you made a contact with this Rodante De Leon?
We approached him and then our confidential informant introduced me to him as a buyer of shabu.

COURT:
A:

What?
I was introduced to him by the confidential informant as a buyer of shabu.

PROS. ANTERO:
What happened thereafter?
A:
He made transaction with us, sir.
Q:
What happened during the transaction?
A:
I asked him sir if he has shabu and then he answered yes and magkano.
Q:
What did he tell you, if any?
A:
He asked me how much I would buy shabu.
Q:
What did you tell, if any?
A:
That was the time when I handed to him the money, sir.
Q:
What happened when you handed the money to him?
A:
In return, sir, he handed to me one (1) plastic sachet containing suspected shabu.
Q:
One?
A:
Yes, sir.
Q:
What happened after he handed to you one plastic sachet?
A:
I gave pre-arranged signal to my back-up and immediately effected the arrest, sir.
Q:
What was the pre-arranged signal?
A:
By scratching my head, sir.
Q:
Scratching your head?
A:
Yes, sir.
Q:
What happened when you made that pre-arranged signal?
A:
I effected the arrest, sir, and confiscated the buy bust money from Rodante De Leon.104[14]
Evidently, all the elements of the crime of illegal sale of prohibited drugs were proved in the instant case. The testimony cited above shows clearly that a
sale occurred between appellant, as the seller, and PO2 Magcalayo, as the buyer, for PhP 200 worth of shabu. In addition, the said testimony illustrated
the seizing of the prohibited drug and the exchange of the marked money. As a matter of fact, the trial court, in disposing of the case, said:
x x x Set against this legal yardstick, the evidence adduced by the prosecution have sufficiently established the elements aforesaid. The prosecution
witnesses in the person of PO2 Noel Magcalayo, the one who acted as the poseur buyer in the buy bust operation conducted by his team, described in
detail how the operation was commenced with the help of an informant, his introduction to the accused, the ensuing negotiation and consummation of
the sale of shabu which ended up in the exchange of the item as well as the buy bust money. Accused was positively identified as the seller thereof and
the source of the plastic sachet which contained crystalline substance later on determined after laboratory examination as positive for
methylamphetamine, a dangerous drug. Said evidence was presented in court and properly identified as the subject of the buy bust and which was
submitted for examination by the Forensic Chemist. All told, all the elements aforementioned are hereby present. 105[15] x x x
Further, the chain of custody was clearly established by the prosecution. It is elementary that, in every prosecution for the illegal sale of prohibited
drugs, the presentation of the drug as evidence in court is material. 106[16] It is, therefore, essential that the identity of the prohibited drug be established
beyond doubt. What is more, the fact that the substance bought during the buy-bust operation is the same substance offered in court should be

104
105
106
Page 29 of 81

established. The chain of custody requirement performs this function in that it ensures that unnecessary doubts concerning the identity of the evidence
are removed.107[17]
To ensure that the chain of custody is established, the Implementing Rules and Regulations of RA 9165 provide:
SECTION 21. Custody and Disposition of Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs,
Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. The PDEA shall take charge and
have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:
(a)
The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically
inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to
sign the copies of the inventory and be given a copy thereof; Provided, that the physical inventory and photograph shall be conducted at the
place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever
is practicable, in case of warrantless seizures; Provided, further, that non-compliance with these requirements under justifiable grounds, as
long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void
and invalid such seizures of and custody over said items x x x. (Emphasis supplied.)
A close examination of the law reveals that it admits of certain exceptions. Thus, contrary to the assertions of appellant, Sec. 21 of the foregoing law
need not be followed as an exact science. Non-compliance with Sec. 21 does not render an accuseds arrest illegal or the items seized/confiscated from
him inadmissible.108[18] What is essential is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized
in the determination of the guilt or innocence of the accused.109[19]
In the instant case, there was substantial compliance with the law and the integrity of the drugs seized from appellant was preserved. The chain of
custody of the drugs subject matter of the case was shown not to have been broken. The factual milieu of the case reveals that after PO2 Magcalayo
seized and confiscated the dangerous drugs, as well as the marked money, appellant was immediately arrested and brought to the police station for
investigation, where the sachet of suspected shabu was marked with NM. Immediately thereafter, the confiscated substance, with a letter of request for
examination, was submitted to the PNP Crime Laboratory for examination to determine the presence of any dangerous drug. Per Chemistry Report No.
D-1240-2003 dated November 9, 2003, the specimen submitted contained methylamphetamine hydrochloride, a dangerous drug. The examination was
conducted by one Engr. Jabonillo, a Forensic Chemical Officer of the PNP Crime Laboratory, whose stipulated testimony clearly established the chain
of custody of the specimens he received. Thus, it is without a doubt that there was an unbroken chain of custody of the illicit drug purchased from
appellant.
Likewise, the prosecution was able to prove that appellant is guilty of illegal possession of dangerous drugs with moral certainty. In the prosecution for
illegal possession of dangerous drugs, the following elements must be proved with moral certainty: (1) that the accused is in possession of the object
identified as a prohibited or regulatory drug; (2) that such possession is not authorized by law; and (3) that the accused freely and consciously
possessed the said drug.110[20]
Here, appellant was caught in actual possession of the prohibited drugs without showing any proof that he was duly authorized by law to possess them.
Having been caught in flagrante delicto, there is prima facie evidence of animus possidendi on appellants part. As held by this Court, the finding of a
dangerous drug in the house or within the premises of the house of the accused is prima facie evidence of knowledge or animus possidendi and is
enough to convict in the absence of a satisfactory explanation. 111[21] In the case at bar, appellant failed to present any evidence to rebut his animus
possidendi of the shabu found in his pocket during the buy-bust operation.
Buy-Bust Operation Was Valid
Appellant further argues that the buy-bust operation was full of irregularities, rendering it illegal. He notes that the Pre-Operation Report was full of
discrepancies and that the Joint Sworn Affidavit of Apprehension of PO2 Magcalayo and PO2 Collado failed to mention that they placed their markings
on the plastic sachets.
The arguments are specious. Such irregularities cannot overturn the finding of the presence in this case of the elements of violations of Secs. 5 and 11,
Art. II of RA 9165.
A buy-bust operation is a form of entrapment whereby ways and means are resorted to for the purpose of trapping and capturing the lawbreakers in the
execution of their criminal plan.112[22] In this jurisdiction, the operation is legal and has been proved to be an effective method of apprehending drug
peddlers, provided due regard to constitutional and legal safeguards is undertaken.113[23]
In the case at bar, the evidence clearly shows that the buy-bust operation conducted by the police officers, who made use of entrapment to capture
appellant in the act of selling a dangerous drug, was valid and legal. Moreover, the defense has failed to show any evidence of ill motive on the part of

107
108
109
110
111
112
113
Page 30 of 81

the police officers. Even appellant himself declared that it was the first time he met the police officers during his cross-examination. There was,
therefore, no motive for the police officers to frame up appellant.
Likewise, the identity of appellant as the person who sold the dangerous drugs to PO2 Magcalayo and the one in possession of the shabu cannot be
doubted anymore. Such positive identification prevails over appellants defenses of denial and alibi. These defenses have been invariably viewed by the
Court with disfavor, for they can easily be concocted but difficult to prove, and they are common and standard defense ploys in most prosecutions
arising from violations of the Comprehensive Dangerous Drugs Act.114[24]
Absent any proof of motive to falsely accuse appellant of such a grave offense, the presumption of regularity in the performance of official duty and the
findings of the trial court with respect to the credibility of witnesses shall prevail over appellants bare allegation. 115[25]
We, therefore, uphold the presumption of regularity in the performance of official duties and find that the prosecution has discharged its burden of
proving the guilt of appellant beyond reasonable doubt.
WHEREFORE, the appeal is DENIED. The CAs Decision in CA-G.R. CR-H.C. No. 01811 finding appellant Rodante De Leon y Dela Rosa guilty of the
crimes charged is AFFIRMED.
SO ORDERED.

FIRST DIVISION
PEOPLE OF THE PHILIPPINES,
Petitioner,

G.R. No. 128587

Present:

- versus -

HON. PERFECTO A.S. LAGUIO, JR., in his capacity as Presiding

Judge, Branch 18, RTC, Manila, and LAWRENCE WANG Y
CHEN,
Respondents.

PUNO, C.J., Chairperson,

SANDOVAL-GUTIERREZ,
CORONA,
AZCUNA, and
GARCIA, JJ.
Promulgated:
March 16, 2007

On pure questions of law, petitioner People of the Philippines has directly come to this Court via this petition for review on certiorari to nullify and set
aside the Resolution116[1] dated 13 March 1997 of the Regional Trial Court of Manila, Branch 18, in Criminal Case Nos. 96-149990 to 96-149992,
entitled People of the Philippines v. Lawrence Wang y Chen, granting private respondent Lawrence C. Wangs Demurrer to Evidence and acquitting him
of the three (3) charges filed against him, namely: (1) Criminal Case No. 96-149990 for Violation of Section 16, Article III in relation to Section 2(e)(2),
Article I of Republic Act (R.A.) No. 6425 (Dangerous Drugs Act); (2) Criminal Case No. 96-149991 for Violation of Presidential Decree No. 1866 (Illegal
Possession of Firearms); and (3) Criminal Case No. 96-149992 for Violation of Comelec Resolution No. 2828 in relation to R.A. No. 7166 (COMELEC
Gun Ban).
The three (3) separate Informations filed against Lawrence C. Wang in the court of origin respectively read:
Criminal Case No. 96-149990 (Violation of Dangerous Drugs Act):

114
115

116
Page 31 of 81

That on or about the 17th day of May 1996, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and knowingly
have in his possession and under his custody and control a bulk of white and yellowish crystalline substance known as SHABU contained in thirty-two
(32) transparent plastic bags weighing approximately 29.2941 kilograms, containing methamphetamine hydrochloride, a regulated drug, without the
corresponding license or prescription therefor.
Contrary to law.117[2]
Criminal Case No. 96-149991 (Illegal Possession of Firearms):
That on or about the 17th day of May 1996, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and knowingly
have in his possession and under his custody and control one (1) DAEWOO Cal. 9mm, automatic pistol with one loaded magazine and one AMT Cal. .
380 9mm automatic backup pistol with magazine loaded with ammunitions without first having secured the necessary license or permit therefor from the
proper authorities.
Contrary to law. 118[3]
Criminal Case No. 96-149992 (Violation of Comelec Gun Ban):
That on or about the 17th day of May 1996, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and knowingly
have in his possession and under his custody and control one (1) DAEWOO Cal. 9mm automatic pistol with one loaded magazine and one (1) AMT Cal.
380 9mm automatic backup pistol with magazine loaded with ammunitions, carrying the same along Maria Orosa St., Ermita, Manila, which is a public
place, on the date which is covered by an election period, without first securing the written permission or authority from the Commission on Elections,
as provided by the COMELEC Resolution 2828 in relation to Republic Act 7166.
Contrary to law. 119[4]
During his arraignment, accused Wang refused to enter a plea to all the Informations and instead interposed a continuing objection to the admissibility
of the evidence obtained by the police operatives. Thus, the trial court ordered that a plea of Not Guilty be entered for him. 120[5] Thereafter, joint trial of
the three (3) consolidated cases followed.

The pertinent facts are as follows:

On 16 May 1996, at about 7:00 p.m., police operatives of the Public Assistance and Reaction Against Crime of the Department of Interior
and Local Government, namely, Captain Margallo, Police Inspector Cielito Coronel and SPO3 Reynaldo Cristobal, arrested SPO2 Vergel de Dios,
Rogelio Anoble and a certain Arellano, for unlawful possession of methamphetamine hydrochloride, a regulated drug popularly known as shabu. In the
course of the investigation of the three arrested persons, Redentor Teck, alias Frank, and Joseph Junio were identified as the source of the drug.
Entrapment operations was then set after the three were prevailed upon to call their source and pretend to order another supply of shabu.
At around 11:00 p.m. that same date, Redentor Teck and Joseph Junio were arrested while they were about to hand over another bag of
shabu to SPO2 De Dios and company. Questioned, Redentor Teck and Joseph Junio informed the police operatives that they were working as talent
manager and gymnast instructor, respectively, of Glamour Modeling Agency owned by Lawrence Wang. Redentor Teck and Joseph Junio did not
disclose their source of shabu but admitted that they were working for Wang.121[6] They also disclosed that they knew of a scheduled delivery of shabu
early the following morning of 17 May 1996, and that their employer (Wang) could be found at the Maria Orosa Apartment in Malate, Manila. The police
operatives decided to look for Wang to shed light on the illegal drug activities of Redentor Teck and Joseph Junio. Police Inspector Cielito Coronel and
his men then proceeded to Maria Orosa Apartment and placed the same under surveillance.
Prosecution witness Police Inspector Cielito Coronel testified that at about 2:10 a.m. of 17 May 1996, Wang, who was described to the
operatives by Teck, came out of the apartment and walked towards a parked BMW car. On nearing the car, he (witness) together with Captain Margallo
and two other police officers approached Wang, introduced themselves to him as police officers, asked his name and, upon hearing that he was
Lawrence Wang, immediately frisked him and asked him to open the back compartment of the BMW car. 122[7] When frisked, there was found inside the
front right pocket of Wang and confiscated from him an unlicensed AMT Cal. 380 9mm automatic Back-up Pistol loaded with ammunitions. At the same
time, the other members of the operatives searched the BMW car and found inside it were the following items: ( a) 32 transparent plastic bags
containing white crystalline substance with a total weight of 29.2941 kilograms, which substance was later analyzed as positive for methamphetamine
hydrochloride, a regulated drug locally known as shabu; (b) cash in the amount of P650,000.00; (c) one electronic and one mechanical scales; and (d)
an unlicensed Daewoo 9mm Pistol with magazine. Then and there, Wang resisted the warrantless arrest and search. 123[8]

117
118
119
120
121
122
Page 32 of 81

On 6 December 1996, the prosecution rested its case and upon motion, accused Wang was granted 25 days from said date within which to file his
intended Demurrer to Evidence.124[9] On 19 December 1996, the prosecution filed a Manifestation125[10] to the effect that it had rested its case only in
so far as the charge for Violation of the Dangerous Drugs Act in Criminal Case No. 96-149990 is concerned, and not as regards the two cases for Illegal
Possession of Firearms (Crim. Case No. 96-149991) and Violation of the Comelec Gun Ban (Crim. Case No. 96-149992). Accordingly, trial continued.
On 9 January 1997, Wang filed his undated Demurrer to Evidence,126[11] praying for his acquittal and the dismissal of the three (3) cases against him
for lack of a valid arrest and search warrants and the inadmissibility of the prosecutions evidence against him. Considering that the prosecution has not
yet filed its Opposition to the demurrer, Wang filed an Amplification127[12] to his Demurrer of Evidence on 20 January 1997. On 12 February 1997, the
prosecution filed its Opposition128[13] alleging that the warrantless search was legal as an incident to the lawful arrest and that it has proven its case, so
it is now time for the defense to present its evidence.
On 13 March 1997, the respondent judge, the Hon. Perfecto A.S. Laguio, Jr., issued the herein assailed Resolution 129[14] granting Wangs Demurrer to
Evidence and acquitting him of all charges for lack of evidence, thus:
WHEREFORE, the accused's undated Demurrer to Evidence is hereby granted; the accused is acquitted of the charges against him for the crimes of
Violation of Section 16, Article III of the Dangerous Drugs Act, Illegal Possession of Firearms, and Violation of Comelec Gun Ban, for lack of evidence;
the 32 bags of shabu with a total weight of 29.2941 kilograms and the two unlicensed pistols, one AMT Cal. .380 9mm and one Daewoo Cal. 9mm. are
ordered confiscated in favor of the government and the branch clerk is directed to turn over the 32 bags of shabu to the Dangerous Drugs Board in
Intramuros, Manila, and the two firearms to the Firearms and Explosive Units, PNP, Camp Crame, Quezon City, for proper disposition, and the officerin-charge of PARAC, Department of Interior and Local Government, is ordered to return the confiscated amount of P650,000.00 to the accused, and the
confiscated BMW car to its registered owner, David Lee. No costs.
SO ORDERED.
Hence, this petition130[15] for review on certiorari by the People, submitting that the trial court erred I
XXX IN HOLDING THAT THE UNDISPUTED FACTS AND CIRCUMSTANCES DID NOT CONSTITUTE PROBABLE CAUSE WITHIN THE
CONTEMPLATION OF SECTION 2, ARTICLE III OF THE CONSTITUTION, AND IN HOLDING THAT SUCH FACTS AND CIRCUMSTANCES
NEITHER JUSTIFIED THE WARRANTLESS SEARCH OF ACCUSED'S VEHICLE AND THE SEIZURE OF THE CONTRABAND THEREIN.
ll
XXX IN HOLDING, IN EFFECT, THAT A WARRANTLESS SEARCH IS CONSTITUTIONALLY ALLOWABLE AND CAN ONLY BE VALID AS AN
INCIDENT TO A LAWFUL ARREST.
lII
XXX IN DECLARING THE WARRANTLESS ARREST OF THE ACCUSED AND THE SEARCH AND SEIZURE OF HIS HANDGUNS UNLAWFUL.
IV
XXX IN NOT DECLARING THE ACCUSED AS HAVING WAIVED, AS A RESULT OF HIS SUBMISSION AND FAILURE TO PROTEST THE SEARCH
AND HIS ARREST, HIS CONSTITUTIONAL RIGHT AGAINST UNREASONABLE SEARCH AND SEIZURE AND HIS OBJECTION TO THE
ADMISSION OF THE EVIDENCE SEIZED.
V
XXX IN NOT ADMITTING IN EVIDENCE THE EVIDENCE SEIZED AND OFFERED BY THE PROSECUTION AND IN NOT DENYING ACCUSED'S
DEMURRER TO EVIDENCE.

123
124
125
126
127
128
129
130
Page 33 of 81

In its Resolution131[16] of 9 July 1997, the Court, without giving due course to the petition, required the public and private respondents to comment
thereon within ten days from notice. Private respondent Wang filed his comment 132[17]on 18 August 1997.

On 10 September 1997, the Court required the People to file a reply, 133[18] which the Office of the Solicitor General did on 5 December 1997, after
several extensions.134[19]
On 20 October 2004, the Court resolved to give due course to the petition and required the parties to submit their respective memoranda, 135[20] which
they did.
The case presents two main issues: (a) whether the prosecution may appeal the trial courts resolution granting Wangs demurrer to evidence and
acquitting him of all the charges against him without violating the constitutional proscription against double jeopardy; and ( b) whether there was lawful
arrest, search and seizure by the police operatives in this case despite the absence of a warrant of arrest and/or a search warrant.
First off, it must be emphasized that the present case is an appeal filed directly with this Court via a petition for review on certiorari under Rule
45 in relation to Rule 41, Section 2, paragraph (c) of the Rules of Court raising only pure questions of law, ordinary appeal by mere filing of a notice of
appeal not being allowed as a mode of appeal directly to this Court. Then, too, it bears stressing that the right to appeal is neither a natural right nor a
part of due process, it being merely a statutory privilege which may be exercised only in the manner provided for by law ( Velasco v. Court of
Appeals136[21]). Although Section 2, Rule 122 of the Rules on Criminal Procedure states that any party may appeal, the right of the People to appeal is,
in the very same provision, expressly made subject to the prohibition against putting the accused in double jeopardy. It also basic that appeal in criminal
cases throws the whole records of the case wide open for review by the appellate court, that is why any appeal from a judgment of acquittal necessarily
puts the accused in double jeopardy. In effect, the very same Section 2 of Rule 122 of the Rules on Criminal Procedure, disallows appeal by the People
from judgments of acquittal.
An order granting an accuseds demurrer to evidence is a resolution of the case on the merits, and it amounts to an acquittal. Generally, any further
prosecution of the accused after an acquittal would violate the constitutional proscription on double jeopardy. To this general rule, however, the Court
has previously made some exceptions.
The celebrated case of Galman v. Sandiganbayan137[22] presents one exception to the rule on double jeopardy, which is, when the
prosecution is denied due process of law:
No court whose Presiding Justice has received orders or suggestions from the very President who by an amendatory decree (disclosed only at the
hearing of oral arguments on November 8, 1984 on a petition challenging the referral of the Aquino-Galman murder cases to the Tanodbayan and
Sandiganbayan instead of to a court martial, as mandatorily required by the known P.D. 1850 at the time providing for exclusive jurisdiction of courts
martial over criminal offenses committed by military men) made it possible to refer the cases to the Sandiganbayan, can be an impartial court, which is
the very essence of due process of law. As the writer then wrote, jurisdiction over cases should be determined by law, and not by preselection of the
Executive, which could be much too easily transformed into a means of predetermining the outcome of individual cases. This criminal collusion as to the
handling and treatment of the cases by public respondents at the secret Malacaang conference (and revealed only after fifteen months by Justice
Manuel Herrera) completely disqualified respondent Sandiganbayan and voided ab initio its verdict. This renders moot and irrelevant for now the
extensive arguments of respondents accused, particularly Generals Ver and Olivas and those categorized as accessories, that there has been no
evidence or witness suppressed against them, that the erroneous conclusions of Olivas as police investigator do not make him an accessory of the
crimes he investigated and the appraisal and evaluation of the testimonies of the witnesses presented and suppressed. There will be time and
opportunity to present all these arguments and considerations at the remand and retrial of the cases herein ordered before a neutral and impartial court.
The Supreme Court cannot permit such a sham trial and verdict and travesty of justice to stand unrectified. The courts of the land under its aegis are
courts of law and justice and equity. They would have no reason to exist if they were allowed to be used as mere tools of injustice, deception and
duplicity to subvert and suppress the truth, instead of repositories of judicial power whose judges are sworn and committed to render impartial justice to
all alike who seek the enforcement or protection of a right or the prevention or redress of a wrong, without fear or favor and removed from the pressures
of politics and prejudice. More so, in the case at bar where the people and the world are entitled to know the truth, and the integrity of our judicial
system is at stake. In life, as an accused before the military tribunal Ninoy had pleaded in vain that as a civilian he was entitled to due process of law
and trial in the regular civil courts before an impartial court with an unbiased prosecutor. In death, Ninoy, as the victim of the treacherous and vicious
assassination and the relatives and sovereign people as the aggrieved parties plead once more for due process of law and a retrial before an impartial
court with an unbiased prosecutor. The Court is constrained to declare the sham trial a mock trial the non-trial of the century and that the predetermined
judgment of acquittal was unlawful and void ab initio.
1.No double jeopardy. It is settled doctrine that double jeopardy cannot be invoked against this Court's setting aside of the trial courts' judgment of
dismissal or acquittal where the prosecution which represents the sovereign people in criminal cases is denied due process. As the Court
stressed in the 1985 case of People vs. Bocar,
Where the prosecution is deprived of a fair opportunity to prosecute and prove its case, its right to due process is thereby violated.

131
132
133
134
135
136
137
Page 34 of 81

The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted of their jurisdiction. Thus, the violation of the
State's right to due process raises a serious jurisdictional issue (Gumabon vs. Director of the Bureau of Prisons, L-30026, 37 SCRA 420 [Jan. 30,
1971]) which cannot be glossed over or disregarded at will. Where the denial of the fundamental right of due process is apparent, a decision rendered
in disregard of that right is void for lack of jurisdiction (Aducayen vs. Flores, L-30370 [May 25, 19731, 51 SCRA 78; Shell Co. vs. Enage, L-30111-12, 49
SCRA 416 Feb. 27, 1973]). Any judgment or decision rendered notwithstanding such violation may be regarded as a lawless thing, which can be
treated as an outlaw and slain at sight, or ignored wherever it exhibits its head (Aducayen vs. Flores, supra).
Respondent Judge's dismissal order dated July 7, 1967 being null and void for lack of jurisdiction, the same does not constitute a proper basis for a
claim of double jeopardy (Serino vs. Zosa, supra).
xxx xxx xxx
Legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent court, (c) after arraignment, (d) a valid plea having been entered; and
(e) the case was dismissed or otherwise terminated without the express consent of the accused (People vs. Ylagan, 58 Phil. 851). The lower court was
not competent as it was ousted of its jurisdiction when it violated the right of the prosecution to due process.
In effect, the first jeopardy was never terminated, and the remand of the criminal case for further hearing and/or trial before the lower courts amounts
merely to a continuation of the first jeopardy, and does not expose the accused to a second jeopardy.
Another exception is when the trial court commits grave abuse of discretion in dismissing a criminal case by granting the accuseds demurrer
to evidence. In point is the fairly recent case of People v. Uy,138[23] which involved the trial courts decision which granted the two separate demurrers to
evidence filed by the two accused therein, both with leave of court, resulting in their acquittal of their respective charges of murder due to insufficiency
of evidence. In resolving the petition for certiorari filed directly with this Court, we had the occasion to explain:
The general rule in this jurisdiction is that a judgment of acquittal is final and unappealable. People v. Court of Appeals explains the rationale of this rule:
In our jurisdiction, the finality-of-acquittal doctrine as a safeguard against double jeopardy faithfully adheres to the principle first enunciated in Kepner v.
United States. In this case, verdicts of acquittal are to be regarded as absolutely final and irreviewable. The cases of United States v. Yam Tung Way,
People v. Bringas, Gandicela v. Lutero, People v. Cabarles, People v. Bao, to name a few, are illustrative cases. The fundamental philosophy behind
the constitutional proscription against double jeopardy is to afford the defendant, who has been acquitted, final repose and safeguard him from
government oppression through the abuse of criminal processes. As succinctly observed in Green v. United States "(t)he underlying idea, one that is
deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to
make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling
him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent, he may be found guilty."
(Underscoring supplied)
The same rule applies in criminal cases where a demurrer to evidence is granted. As held in the case of People v. Sandiganbayan:
The demurrer to evidence in criminal cases, such as the one at bar, is filed after the prosecution had rested its case, and when the same is granted, it
calls for an appreciation of the evidence adduced by the prosecution and its sufficiency to warrant conviction beyond reasonable doubt, resulting in a
dismissal of the case on the merits, tantamount to an acquittal of the accused. Such dismissal of a criminal case by the grant of demurrer to evidence
may not be appealed, for to do so would be to place the accused in double-jeopardy. The verdict being one of acquittal, the case ends there. (Italics in
the original)
Like any other rule, however, the above-said rule is not absolute. By way of exception, a judgment of acquittal in a criminal case may be
assailed in a petition for certiorari under Rule 65 of the Rules of Court upon a clear showing by the petitioner that the lower court, in
acquitting the accused, committed not merely reversible errors of judgment but also grave abuse of discretion amounting to lack or excess
of jurisdiction or a denial of due process, thus rendering the assailed judgment void. (Emphasis supplied.)
In Sanvicente v. People,139[24] the Court allowed the review of a decision of the Court of Appeals (CA) which reversed the accuseds acquittal upon
demurrer to evidence filed by the accused with leave of court, the CA ruling that the trial court committed grave abuse of discretion in preventing the
prosecution from establishing the due execution and authenticity of certain letter marked therein as Exhibit LL, which supposedly positively identified
therein petitioner as the perpetrator of the crime charged. The Court, in a petition for certiorari, sustained the CAs power to review the order granting the
demurrer to evidence, explaining thus:
Under Rule 119, Section 23 of the Revised Rules of Criminal Procedure, as amended, the trial court may dismiss the action on the ground of
insufficiency of evidence upon a demurrer to evidence filed by the accused with or without leave of court. In resolving accuseds demurrer to evidence,
the court is merely required to ascertain whether there is competent or sufficient evidence to sustain the indictment or support a verdict of guilt.
The grant or denial of a demurrer to evidence is left to the sound discretion of the trial court and its ruling on the matter shall not be disturbed in the
absence of a grave abuse of discretion. Significantly, once the court grants the demurrer, such order amounts to an acquittal and any further
prosecution of the accused would violate the constitutional proscription on double jeopardy. This constitutes an exception to the rule that the dismissal
of a criminal case made with the express consent of the accused or upon his own motion bars a plea of double jeopardy. The finality-of-acquittal rule
was stressed thus in People v. Velasco:
The fundamental philosophy highlighting the finality of an acquittal by the trial court cuts deep into the humanity of the laws and in jealous watchfulness
over the rights of the citizens, when brought in unequal contest with the State xxx. Thus Green expressed the concern that (t)he underlying idea, one
that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed
to make repeated attempts to convict an individual for an alleged offense thereby subjecting him to embarrassment, expense and ordeal and compelling
him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent, he may be found guilty.
It is axiomatic that on the basis of humanity, fairness and justice, an acquitted defendant is entitled to the right of repose as a direct consequence of the
finality of his acquittal. The philosophy underlying this rule establishing the absolute nature of acquittals is part of the paramount importance criminal
justice system attaches to the protection of the innocent against wrongful conviction. The interest in the finality-of-acquittal rule, confined exclusively to
verdicts of not guilty, is easy to understand: it is a need for repose, a desire to know the exact extent of ones liability. With this right of repose, the
criminal justice system has built in a protection to insure that the innocent, even those whose innocence rests upon a jurys leniency, will not be found
guilty in a subsequent proceeding.
Given the far-reaching scope of an accuseds right against double jeopardy, even an appeal based on an alleged misappreciation of evidence will not
lie. The only instance when double jeopardy will not attach is when the trial court acted with grave abuse of discretion amounting to lack or
excess of jurisdiction, such as where the prosecution was denied the opportunity to present its case or where the trial was a sham. However,
while certiorari may be availed of to correct an erroneous acquittal, the petitioner in such an extraordinary proceeding must clearly

138
139
Page 35 of 81

demonstrate that the trial court blatantly abused its authority to a point so grave as to deprive it of its very power to dispense justice .
(Emphasis supplied.)
By this time, it is settled that the appellate court may review dismissal orders of trial courts granting an accuseds demurrer to evidence. This may be
done via the special civil action of certiorari under Rule 65 based on the ground of grave abuse of discretion, amounting to lack or excess of
jurisdiction. Such dismissal order, being considered void judgment, does not result in jeopardy. Thus, when the order of dismissal is annulled or set
aside by an appellate court in an original special civil action via certiorari, the right of the accused against double jeopardy is not violated.
Unfortunately, what petitioner People of the Philippines, through then Secretary of Justice Teofisto T. Guingona, Jr. and then Solicitor General Silvestre
H. Bello, III, filed with the Court in the present case is an appeal by way of a petition for review on certiorari under Rule 45 raising a pure
question of law, which is different from a petition for certiorari under Rule 65.
In Madrigal Transport Inc. v. Lapanday Holdings Corporation,140[25] we have enumerated the distinction between the two remedies/actions, to wit:
Appeal and Certiorari Distinguished
Between an appeal and a petition for certiorari, there are substantial distinctions which shall be explained below.
As to the Purpose. Certiorari is a remedy designed for the correction of errors of jurisdiction, not errors of judgment. In Pure Foods Corporation v.
NLRC, we explained the simple reason for the rule in this light:
When a court exercises its jurisdiction, an error committed while so engaged does not deprive it of the jurisdiction being exercised when the error is
committed. If it did, every error committed by a court would deprive it of its jurisdiction and every erroneous judgment would be a void judgment. This
cannot be allowed. The administration of justice would not survive such a rule. Consequently, an error of judgment that the court may commit in the
exercise of its jurisdiction is not correct[a]ble through the original civil action of certiorari.
The supervisory jurisdiction of a court over the issuance of a writ of certiorari cannot be exercised for the purpose of reviewing the intrinsic correctness
of a judgment of the lower court -- on the basis either of the law or the facts of the case, or of the wisdom or legal soundness of the decision. Even if the
findings of the court are incorrect, as long as it has jurisdiction over the case, such correction is normally beyond the province of certiorari. Where the
error is not one of jurisdiction, but of an error of law or fact -- a mistake of judgment -- appeal is the remedy.
As to the Manner of Filing. Over an appeal, the CA exercises its appellate jurisdiction and power of review. Over a certiorari, the higher court uses its
original jurisdiction in accordance with its power of control and supervision over the proceedings of lower courts. An appeal is thus a continuation of the
original suit, while a petition for certiorari is an original and independent action that was not part of the trial that had resulted in the rendition of the
judgment or order complained of. The parties to an appeal are the original parties to the action. In contrast, the parties to a petition for certiorari are the
aggrieved party (who thereby becomes the petitioner) against the lower court or quasi-judicial agency, and the prevailing parties (the public and the
private respondents, respectively).
As to the Subject Matter. Only judgments or final orders and those that the Rules of Court so declared are appealable. Since the issue is jurisdiction,
an original action for certiorari may be directed against an interlocutory order of the lower court prior to an appeal from the judgment; or where there is
no appeal or any plain, speedy or adequate remedy.
As to the Period of Filing. Ordinary appeals should be filed within fifteen days from the notice of judgment or final order appealed from. Where a
record on appeal is required, the appellant must file a notice of appeal and a record on appeal within thirty days from the said notice of judgment or final
order. A petition for review should be filed and served within fifteen days from the notice of denial of the decision, or of the petitioners timely filed motion
for new trial or motion for reconsideration. In an appeal by certiorari, the petition should be filed also within fifteen days from the notice of judgment or
final order, or of the denial of the petitioners motion for new trial or motion for reconsideration.
On the other hand, a petition for certiorari should be filed not later than sixty days from the notice of judgment, order, or resolution. If a motion for new
trial or motion for reconsideration was timely filed, the period shall be counted from the denial of the motion.
As to the Need for a Motion for Reconsideration. A motion for reconsideration is generally required prior to the filing of a petition for certiorari, in
order to afford the tribunal an opportunity to correct the alleged errors. Note also that this motion is a plain and adequate remedy expressly available
under the law. Such motion is not required before appealing a judgment or final order.
Also in Madrigal, we stressed that the special civil action of certiorari and appeal are two different remedies mutually exclusive; they are neither
alternative nor successive. Where appeal is available, certiorari will not prosper. In the dismissal of a criminal case upon demurrer to evidence, appeal
is not available as such an appeal will put the accused in double jeopardy. Certiorari, however, is allowed.
For being the wrong remedy taken by petitioner People of the Philippines in this case, this petition is outrightly dismissible. The Court cannot
reverse the assailed dismissal order of the trial court by appeal without violating private respondents right against double jeopardy.
Even assuming that the Court may treat an appeal as a special civil action of certiorari, which definitely this Court has the power to do, when there is a
clear showing of grave abuse of discretion committed by the lower court, the instant petition will nevertheless fail on the merits as the succeeding
discussion will show.
There are actually two (2) acts involved in this case, namely, the warrantless arrest and the warrantless search. There is no question that warrantless
search may be conducted as an incident to a valid warrantless arrest. The law requires that there be first a lawful arrest before a search can be made;
the process cannot be reversed. 141[26] However, if there are valid reasons to conduct lawful search and seizure which thereafter shows that the
accused is currently committing a crime, the accused may be lawfully arrested in flagrante delicto142[27] without need for a warrant of arrest.
Finding that the warrantless arrest preceded the warrantless search in the case at bar, the trial court granted private respondent's demurrer to evidence
and acquitted him of all the three charges for lack of evidence, because the unlawful arrest resulted in the inadmissibility of the evidence gathered from
an invalid warrantless search. The trial courts ratiocination is quoted as follows:
The threshold issue raised by the accused in his Demurrer to Evidence is whether his warrantless arrest and search were lawful as argued by the
prosecution, or unlawful as asserted by the defense.

140
141
142
Page 36 of 81

Under Section 5, Rule 113 of the New Rules of Court, a peace officer may arrest a person without a warrant: (a) when in his presence, the
person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) when an offense has in fact just been committed,
and he has personal knowledge of facts indicating that the person to be arrested has committed it, and (c) when the person to be arrested is a prisoner
who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while being transferred from one
confinement to another. None of these circumstances were present when the accused was arrested. The accused was merely walking from the Maria
Orosa Apartment and was about to enter the parked BMW car when the police officers arrested and frisked him and searched his car. The accused was
not committing any visible offense at the time of his arrest. Neither was there an indication that he was about to commit a crime or that he had just
committed an offense. The unlicensed AMT Cal.380 9mm Automatic Back-up Pistol that the accused had in his possession was concealed inside the
right front pocket of his pants. And the handgun was bantam and slim in size that it would not give an outward indication of a concealed gun if placed
inside the pant's side pocket as was done by the accused. The arresting officers had no information and knowledge that the accused was carrying an
unlicensed handgun, nor did they see him in possession thereof immediately prior to his arrest.
Ditto on the 32 bags of shabu and the other unlicensed Daewoo Cal. 9mm Pistol with magazine that were found and seized from the car. The
contraband items in the car were not in plain view. The 32 bags of shabu were in the trunk compartment, and the Daewoo handgun was underneath the
drivers seat of the car. The police officers had no information, or knowledge that the banned articles were inside the car, or that the accused had placed
them there. The police officers searched the car on mere suspicion that there was shabu therein.
On this matter, pertinent portions of the testimonies of Police Inspector Cielito Coronel and SP03 Reynaldo are hereunder quoted:
POLICE INSPECTOR CIELITO CORONELS TESTIMONY
PROSECUTOR TO WITNESS: Direct-Examination
Q.
A.

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

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

xxx

xxx

Q.
A.

Where did you make that arrest, Mr. Witness?

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

Q.
A.

What date was that when you arrested the accused?

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

xxx

xxx

xxx

xxx

Q.
What was the reason why you together with other policemen effected the arrest of the accused?
A.
We arrested him because of the information relayed to us by one of those whom we have previously apprehended in connection with the
delivery of shabu somewhere also in Ermita, Manila.
xxx

xxx

xxx

Q.
A.

When you established that he was somewhere at Maria Orosa, what did you do?
We waited for him.

xxx

xxx

Q.
A.

You yourself, Mr. Witness, where did you position yourself during that time?
I was inside a vehicle waiting for the accused to appear.

Q.
A.

What about your other companions where were they?

They were position in strategic places within the area.

Q.
A.

What happened when you and your companions were positioned in that place?
That was when the accused arrived.

Q.
A.

How many of your approached him.

Inspector Margallo, myself and two other operatives.

Q.
A.

What happened when you approached the accused, Mr. Witness?

We introduced ourselves as police officers and we frisked him and we asked him to open the back compartment of his car.

xxx

Q.
You said you frisked him, what was the result of that?
A.
He was found in possession of one back-up pistol with one loaded magazine and likewise when the compartment was opened several plastic
bags containing white crystalline substance suspected to be shabu (were found).
Q.
A.

What did you do when you found out Mr. Witness?

When the car was further search we later found another firearm, a Daewoo Pistol at the place under the seat of the driver.

Q.
A.

Then what happened?

He was brought to our headquarters at Mandaluyong for further investigation.

Q.
A.

What about the suspected shabu that you recovered, what did you do with that?
The suspected shabu that we recovered were forwarded to the NBI for laboratory examination.

Q.
A.

Did you come to know the results?

It was found positive for methamphetamine hydrochloride. (TSN, pp. 3-8, November 15, 1996).

ATTY. LOZANO TO WITNESS: CROSS

Page 37 of 81

Q.
A.

You arrested Joseph Junio and Redentor Teck for alleged transporting of shabu on May 16, 1996, at 11:00 p.m., is it not?
Yes, Sir.

Q.
A.

You asked Redentor Teck where he is employed, is it not?

Yes, Sir.

xxx

xxx

Q.
A.

Redentor Teck told you that he is a talent manager at the Glenmore Modeling Agency, is it not?
Yes, Sir.

.Q.
A.

The Glenmore Modeling Agency is owned by Lawrence Wang, is it not?

I supposed, Sir.

xxx

Q.
And that is why immediately after Redentor Teck told you that he is an employee of the Glenmore Modeling Agency owned by Lawrence
Wang, naturally, you and your companions look for Lawrence Wang to shed light on the transporting of shabu by Redentor Teck and Joseph Junio, is it
not?
A.
Yes, Sir.
Q.
A.

Thereafter, you spotted a person previously described by Redentor Teck as Lawrence Wang, is it not?
Yes, Sir.

Q.
not?
A.

While you were arresting Lawrence Wang, your companions at the same time searched the BMW car described in your affidavit of arrest, is it

xxx

xxx

Q.
A.

Lawrence Wang was not inside the BMW car while the same was searched, is it not?
He was outside, Sir.

Q.
A.

The driver of the car was inside the car when the arrest and search were made, is it not?
He was likewise outside, Sir.

Q.
A.

Lawrence Wang did resist arrest and search is it not?

Yes, Sir.

Q.
A.

When you effected the arrest, there was no warrant of arrest, is it not?
Yes, Sir.

Q.
A.

When the search was made on the BMW car, there was no search warrant, is it not?
Yes, none, Sir. (TSN, pp. 3-12, November 15, 1996)

Yes, Sir.
xxx

SPO3 REYNALDO CRISTOBALS TESTIMONY

PROSECUTOR TO WITNESS: DIRECT EXAMINATION
Q.
A.

What is you role or participation in this case?

I was one of the arresting officers and investigator, Sir.

xxx

xxx

Q.
A.

xxx

What kind of specific offense did the accused allegedly do so that you arrested him, Mr. Witness?
He was arrested on the basis of the recovered drugs in his possession placed inside his car.

xxx
xxx
xxx
Q.
Mr. witness, you said that you recovered drug from the car of the accused, please tell us the antecedent circumstances which led you to
recover or confiscate these items?
A.
Earlier in the evening about 11:00 p.m. of May 16, we arrested one Redentor Teck and Joseph Junio.
COURT: Where did you arrest these people?
A
They were arrested in Metro Manila also.
COURT: The same date?
A.
May 16, about 11:00 p.m. They were arrested and when they were investigated, Teck mentioned the name of Lawrence Wang as his
employer.
COURT: Why were these people, arrested?
A.
For violation of R.A. 6425.
COURT: How were they arrested?
A.
They were arrested while in the act of transporting shabu or handling shabu to another previously arrested person. It was a series of
arrest.
COURT: So, this involved a series of operation?
A.
Yes, Your Honor. About 11:00 p.m. of May 16, we arrested three (3) persons, SPO2 Vergel de Dios, a certain Arellano and a certain
Rogelio Noble. When they were arrested they divulged the name of the source.
COURT: They were arrested for what, for possession?
Page 38 of 81

A.

Yes, Your Honor. For unlawful possession of shabu . Then they divulged to us the name of the person from whom they get shabu.

COURT: Whose name did they mention:

A.
One Alias Frank, who turned out to be Redentor Teck and Joseph Junio. We let them call Redentor Teck and Joseph Junio thru the
cellphone and pretend and to order another supply of shabu.
COURT: So there was an entrapment?
A.
Yes, Your Honor.
COURT: So, these two (2) were arrested?
A.
While they were about to hand over another bag of shabu to Noble and company.
COURT: And these two reveals (revealed) some information to you as to the source of the shabu?
A.
Yes, Your Honor.
COURT: What was the information?
A.
Teck told us that he is an employee of Lawrence Wang.
COURT: What did you do when you were told about that?
A.
They also told us that there was an ongoing delivery of shabu on that morning.
COURT: When?
A.
Of that date early morning of May 17, 1996.
COURT: At what place?
A.
We asked them where we could find Lawrence Wang and Teck lead us to Maria Orosa Apartment where we conducted a stake out which
lasted up to 2:00 a.m.
xxx

xxx

xxx

COURT: What happened during the stake out?

A. When the person of the accused was identified to us, we saw him opening his car together with his driver.
COURT: So, he was about to leave when you saw him?
A.
Probably, Sir.
COURT: What did you do?
A.
We saw him opened his car and we have a suspicion that there was a shabu inside the compartment of the car.
xxx

xxx

xxx

COURT: All right, when you saw the accused opened his car, what did you do?
A.
We approached him.
COURT: What happened when you approached him?
A.
We suspected the shabu inside the compartment of his car.
COURT: And this shabu that you saw inside the compartment of the car, what did you do with that?
A.
Well, he was first arrested by Captain Margallo and Lt. Coronel while I was the one who inspected and opened the compartment of the car
and saw the shabu. (TSN, pp. 15-24, December 16, 1996).
CLARIFICATORY QUESTIONING OF SPO3 CRISTOBAL BY THE COURT
COURT: From your testimony and that of Police Inspector Cielito Coronel, this Court has gathered that prior to the arrest of the accused there were
three (3) men that your team arrested. One of whom is a police officer.
A:
Yes, Sir.
xxx xxx
xxx
COURT: And on the occasion of the arrest of these three men shabu were confiscated from them?
A:
Yes, Sir.
Q:
And in the course of the investigation of these three men, you were able to discover that Redentor Teck and Joseph Junio were the source of
the regulated drug that were confiscated from the three men that you have arrested?
A:
Yes, Sir.
Q:
Now, thru entrapment base[d] on your testimony you were able to apprehend also these two men, Redentor Teck and Joseph Junio?
A:
Yes, Sir.
xxx

xxx

xxx

Q:
A:

These two men, Redentor Teck and Joseph Junio they were also investigated by your team?
Yes, Sir.

Q:
A:

You were present while they were investigated?

I was the one whom investigated them.

xxx

xxx

Q:
A:

Did you ask Redentor and Joseph the source of shabu that you confiscated from them at the time of the (their) arrest?
Yes, Sir. They refuse to say the source, however, they told me that they were working for the accused.

xxx

Page 39 of 81

Q:
You also testified that Redentor informed you that there was another delivery of shabu scheduled that morning of (stop) was it May 16 or 17?
The other delivery that is scheduled on?
A:
On the 17th.
xxx

xxx

xxx

Q:
A:
xxx

Did he tell you who was to make the delivery?

No, Sir.
xxx
xxx

Q:
At that time when you decided to look for the accused to ask him to shed light on the matter concerning the arrest of these two employees in
possession of shabu. Did you and did your team suspect the accused as being involved in the transaction that lead (led) to the arrest of Redentor and
Joseph?
A:
Yes, Sir. We suspected that he was the source of the shabu.
xxx
Q:
A:

xxx
xxx
When you saw the accused walking towards his car, did you know whether he was carrying a gun?
No, Sir. It cannot be seen.

Q:
A:

It was concealed?
Yes, Sir.

Q:
A:

So, the only time that you and your team learned that he was in possession of the gun is when he was bodily search?
Yes, Sir. That is the only time that I came to know about when Capt. Margallo handed to me the gun.

Q:
A:

Other than walking towards his car, the accused was not doing anything else?
None, Sir.

Q:
A:

That would invite your suspicion or give indication that he was intending to do something unlawful or illegal?
No, Sir.

Q:
A:

When you searched the car, did the accused protest or try to prevent your team from searching his car?
No, Sir. (TSN pp. 3-16, Feb. 26, 1997)

Clearly therefore, the warrantless arrest of the accused and the search of his person and the car were without probable cause and could not be licit.
The arrest of the accused did not fall under any of the exception to the requirements of warrantless arrests, (Sec. 5, Rule 113, Rules of Court) and is
therefore, unlawful and derogatory of his constitutional right of liberty. x x x

The trial court resolved the case on the basis of its findings that the arrest preceded the search, and finding no basis to rule in favor of a
lawful arrest, it ruled that the incidental search is likewise unlawful. Any and all pieces of evidence acquired as a consequence thereof are inadmissible
in evidence. Thus, the trial court dismissed the case for lack of evidence.
Contrary to its position at the trial court, the People, however, now posits that inasmuch as it has been shown in the present case that the
seizure without warrant of the regulated drugs and unlicensed firearms in the accuseds possession had been validly made upon probable cause and
under exigent circumstances, then the warrantless arrest of the accused must necessarily have to be regarded as having been made on the occasion
of the commission of the crime in flagrante delicto, and therefore constitutionally and statutorily permissible and lawful. 143[28] In effect, the People now
contends that the warrantless search preceded the warrantless arrest. Since the case falls under an exception to the general rule requiring search
warrant prior to a valid search and seizure, the police officers were justified in requiring the private respondent to open his BMW cars trunk to see if he
was carrying illegal drugs.
The conflicting versions as to whether the arrest preceded the search or vice versa, is a matter of credibility of evidence. It entails appreciation of
evidence, which may be done in an appeal of a criminal case because the entire case is thrown open for review, but not in the case of a petition for
certiorari where the factual findings of the trial court are binding upon the Court. Since a dismissal order consequent to a demurrer to evidence is not
subject to appeal and reviewable only by certiorari, the factual finding that the arrest preceded the search is conclusive upon this Court. The only legal
basis for this Court to possibly reverse and set aside the dismissal order of the trial court upon demurrer to evidence would be if the trial court
committed grave abuse of discretion in excess of jurisdiction when it ruled that there was no legal basis to lawfully effect a warrantless arrest.
The pertinent provisions of Rule 113 of the Rules on Criminal Procedure on warrantless arrest provide:
Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person:
a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;
b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances
that the person to be arrested has committed it; and
c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or
is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.
Section 5, above, provides three (3) instances when warrantless arrest may be lawfully effected: (a) arrest of a suspect in flagrante delicto; (b) arrest of
a suspect where, based on personal knowledge of the arresting officer, there is probable cause that said suspect was the author of a crime which had
just been committed; (c) arrest of a prisoner who has escaped from custody serving final judgment or temporarily confined while his case is pending.
For a warrantless arrest of an accused caught in flagrante delicto under paragraph (a) of Section 5 to be valid, two requisites must concur: ( 1) the
person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2)
such overt act is done in the presence or within the view of the arresting officer.144[29]

143
144
Page 40 of 81

The facts and circumstances surrounding the present case did not manifest any suspicious behavior on the part of private respondent Lawrence Wang
that would reasonably invite the attention of the police. He was merely walking from the Maria Orosa Apartment and was about to enter the parked
BMW car when the police operatives arrested him, frisked and searched his person and commanded him to open the compartment of the car, which
was later on found to be owned by his friend, David Lee. He was not committing any visible offense then. Therefore, there can be no valid warrantless
arrest in flagrante delicto under paragraph (a) of Section 5. It is settled that reliable information alone, absent any overt act indicative of a felonious
enterprise in the presence and within the view of the arresting officers, is not sufficient to constitute probable cause that would justify an in flagrante
delicto arrest.145[30]
Neither may the warrantless arrest be justified under paragraph (b) of Section 5. What is clearly established from the testimonies of the arresting
officers is that Wang was arrested mainly on the information that he was the employer of Redentor Teck and Joseph Junio who were previously
arrested and charged for illegal transport of shabu. Teck and Junio did not even categorically identify Wang to be their source of the shabu they were
caught with in flagrante delicto. Upon the duos declaration that there will be a delivery of shabu on the early morning of the following day, May 17, which
is only a few hours thereafter, and that Wang may be found in Maria Orosa Apartment along Maria Orosa Street, the arresting officers conducted
surveillance operation in front of said apartment, hoping to find a person which will match the description of one Lawrence Wang, the employer of Teck
and Junio. These circumstances do not sufficiently establish the existence of probable cause based on personal knowledge as required in paragraph
(b) of Section 5.
And doubtless, the warrantless arrest does not fall under paragraph (c) of Section 5.
The inevitable conclusion, as correctly made by the trial court, is that the warrantless arrest was illegal. Ipso jure, the warrantless search
incidental to the illegal arrest is likewise unlawful.
In People v. Aminnudin,146[31] the Court declared as inadmissible in evidence the marijuana found in appellants possession during a search without a
warrant, because it had been illegally seized, in disregard of the Bill of Rights:
In the case at bar, the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that
he had just done so. What he was doing was descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called for his
arrest. To all appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only when the informer pointed to
him as the carrier of the marijuana that he suddenly became a suspect and so subject to apprehension. It was the fugitive finger that triggered his
arrest. The identification of the informer was the probable cause as determined by the officer (and not a judge) that authorized them to pounce upon
Aminnudin and immediately arrest him.
The Peoples contention that Wang waived his right against unreasonable search and seizure has no factual basis. While we agree in principle that
consent will validate an otherwise illegal search, however, based on the evidence on record, Wang resisted his arrest and the search on his person and
belongings.147[32] The implied acquiescence to the search, if there was any, could not have been more than mere passive conformity given under
intimidating or coercive circumstances and is thus considered no consent at all within the purview of the constitutional guarantee. 148[33] Moreover, the
continuing objection to the validity of the warrantless arrest made of record during the arraignment bolsters Wangs claim that he resisted the
warrantless arrest and search.
We cannot close this ponencia without a word of caution: those who are supposed to enforce the law are not justified in disregarding the rights of the
individual in the name of order. Order is too high a price for the loss of liberty. As Justice Holmes once said, I think it is less evil that some criminals
should escape than that the government should play an ignoble part. It is simply not allowed in free society to violate a law to enforce another,
especially if the law violated is the Constitution itself.149[34]
WHEREFORE, the instant petition is DENIED.
SO ORDERED.
SECOND DIVISION
ARSENIO VERGARA VALDEZ,
Petitioner,

G.R. No. 170180

- versus -

PEOPLE OF THE PHILIPPINES,

November 23, 2007
The sacred right against an arrest, search or seizure without valid warrant is not only ancient. It is also zealously safeguarded. The Constitution
guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. 150[1] Any
evidence obtained in violation of said right shall be inadmissible for any purpose in any proceeding. Indeed, while the power to search and seize may at
times be necessary to the public welfare, still it must be exercised and the law implemented without contravening the constitutional rights of the citizens,
for the enforcement of no statute is of sufficient importance to justify indifference to the basic principles of government. 151[2]

145
146
147
148
149
150
151
Page 41 of 81

On appeal is the Decision152[3] of the Court of Appeals dated 28 July 2005, affirming the Judgment 153[4] of the Regional Trial Court (RTC), Branch 31,
Agoo, La Union dated 31 March 2004 finding petitioner Arsenio Vergara Valdez guilty beyond reasonable doubt of violating Section 11 of Republic Act
No. 9165 (R.A. No. 9165)154[5] and sentencing him to suffer the penalty of imprisonment ranging from eight (8) years and one (1) day of prision mayor
medium as minimum to fifteen (15) years of reclusion temporal medium as maximum and ordering him to pay a fine of P350,000.00.155[6]
I.
On 26 June 2003, petitioner was charged with violation of Section 11, par. 2(2) of R.A. No. 9165 in an Information 156[7] which reads:
That on or about the 17th day of March 2003, in the Municipality of Aringay, Province of La Union, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession, control and custody dried
marijuana leaves wrapped in a cellophane and newspaper page, weighing more or less twenty-five (25) grams, without first securing the necessary
permit, license or prescription from the proper government agency.
CONTRARY TO LAW.157[8]
On arraignment, petitioner pleaded not guilty. Thereafter, trial on the merits ensued with the prosecution presenting the three (3) barangay tanods of
San Benito Norte, Aringay, La Union namely, Rogelio Bautista (Bautista), Nestor Aratas (Aratas) and Eduardo Ordoo (Ordoo), who arrested petitioner.
Bautista testified that at around 8:00 to 8:30 p.m. of 17 March 2003, he was conducting the routine patrol along the National Highway in
Barangay San Benito Norte, Aringay, La Union together with Aratas and Ordoo when they noticed petitioner, lugging a bag, alight from a mini-bus. The
tanods observed that petitioner, who appeared suspicious to them, seemed to be looking for something. They thus approached him but the latter
purportedly attempted to run away. They chased him, put him under arrest and thereafter brought him to the house of Barangay Captain Orencio
Mercado (Mercado) where he, as averred by Bautista, was ordered by Mercado to open his bag. Petitioners bag allegedly contained a pair of denim
pants, eighteen pieces of eggplant and dried marijuana leaves wrapped in newspaper and cellophane. It was then that petitioner was taken to the
police station for further investigation.158[9]
Aratas and Ordoo corroborated Bautistas testimony on most material points. On cross-examination, however, Aratas admitted that he himself brought
out the contents of petitioners bag before petitioner was taken to the house of Mercado. 159[10] Nonetheless, he claimed that at Mercados house, it was
petitioner himself who brought out the contents of his bag upon orders from Mercado. For his part, Ordoo testified that it was he who was ordered by
Mercado to open petitioners bag and that it was then that they saw the purported contents thereof.160[11]
The prosecution likewise presented Police Inspector Valeriano Laya II (Laya), the forensic chemist who conducted the examination of the marijuana
allegedly confiscated from petitioner. Laya maintained that the specimen submitted to him for analysis, a sachet of the substance weighing 23.10 grams
and contained in a plastic bag, tested positive of marijuana. He disclosed on cross-examination, however, that he had knowledge neither of how the
marijuana was taken from petitioner nor of how the said substance reached the police officers. Moreover, he could not identify whose marking was on
the inside of the cellophane wrapping the marijuana leaves.161[12]
The charges were denied by petitioner. As the defenses sole witness, he testified that at around 8:30 p.m. on 17 March 2003, he arrived in Aringay from
his place in Curro-oy, Santol, La Union. After alighting from the bus, petitioner claimed that he went to the house of a friend to drink water and then
proceeded to walk to his brothers house. As he was walking, prosecution witness Ordoo, a cousin of his brothers wife, allegedly approached him and
asked where he was going. Petitioner replied that he was going to his brothers house. Ordoo then purportedly requested to see the contents of his bag
and appellant acceded. It was at this point that Bautista and Aratas joined them. After inspecting all the contents of his bag, petitioner testified that he
was restrained by the tanod and taken to the house of Mercado. It was Aratas who carried the bag until they reached their destination. 162[13]
Petitioner maintained that at Mercados house, his bag was opened by the tanod and Mercado himself. They took out an item wrapped in newspaper,
which later turned out to be marijuana leaves. Petitioner denied ownership thereof. He claimed to have been threatened with imprisonment by his

152
153
154
155
156
157
158
159
160
161
162
Page 42 of 81

arrestors if he did not give the prohibited drugs to someone from the east in order for them to apprehend such person. As petitioner declined, he was
brought to the police station and charged with the instant offense. Although petitioner divulged that it was he who opened and took out the contents of
his bag at his friends house, he averred that it was one of the tanod who did so at Mercados house and that it was only there that they saw the
marijuana for the first time.163[14]
Finding that the prosecution had proven petitioners guilt beyond reasonable doubt, the RTC rendered judgment against him and sentenced him to
suffer indeterminate imprisonment ranging from eight (8) years and one (1) day of prision mayor medium as minimum to fifteen (15) years of reclusion
temporal medium as maximum and ordered him to pay a fine of P350,000.00.164[15]
Aggrieved, petitioner appealed the decision of the RTC to the Court of Appeals. On 28 July 2005, the appellate court affirmed the challenged decision.
The Court of Appeals, finding no cogent reason to overturn the presumption of regularity in favor of the barangay tanod in the absence of evidence of illmotive on their part, agreed with the trial court that there was probable cause to arrest petitioner. It observed further:
That the prosecution failed to establish the chain of custody of the seized marijuana is of no moment. Such circumstance finds prominence
only when the existence of the seized prohibited drugs is denied. In this case, accused-appellant himself testified that the marijuana wrapped in a
newspaper was taken from his bag. The corpus delicti of the crime, i.e.[,] the existence of the marijuana and his possession thereof, was amply proven
by accused-appellant Valdezs own testimony.165[16]
In this appeal, petitioner prays for his acquittal and asserts that his guilt of the crime charged had not been proven beyond reasonable doubt. He
argues, albeit for the first time on appeal, that the warrantless arrest effected against him by the barangay tanod was unlawful and that the warrantless
search of his bag that followed was likewise contrary to law. Consequently, he maintains, the marijuana leaves purportedly seized from him are
inadmissible in evidence for being the fruit of a poisonous tree.
Well-settled is the rule that the findings of the trial court on the credibility of witnesses and their testimonies are accorded great respect and weight, in
the absence of any clear showing that some facts and circumstances of weight or substance which could have affected the result of the case have been
overlooked, misunderstood or misapplied.166[17]
After meticulous examination of the records and evidence on hand, however, the Court finds and so holds that a reversal of the decision a quo under
review is in order.
II.
At the outset, we observe that nowhere in the records can we find any objection by petitioner to the irregularity of his arrest before his arraignment.
Considering this and his active participation in the trial of the case, jurisprudence dictates that petitioner is deemed to have submitted to the jurisdiction
of the trial court, thereby curing any defect in his arrest. The legality of an arrest affects only the jurisdiction of the court over his person. 167[18]
Petitioners warrantless arrest therefore cannot, in itself, be the basis of his acquittal.
However, to determine the admissibility of the seized drugs in evidence, it is indispensable to ascertain whether or not the search which yielded the
alleged contraband was lawful. The search, conducted as it was without a warrant, is justified only if it were incidental to a lawful arrest. 168[19]
Evaluating the evidence on record in its totality, as earlier intimated, the reasonable conclusion is that the arrest of petitioner without a warrant is not
lawful as well.
Petitioner maintains, in a nutshell, that after he was approached by the tanod and asked to show the contents of his bag, he was simply herded without
explanation and taken to the house of the barangay captain. On their way there, it was Aratas who carried his bag. He denies ownership over the
contraband allegedly found in his bag and asserts that he saw it for the first time at the barangay captains house.
Even casting aside petitioners version and basing the resolution of this case on the general thrust of the prosecution evidence, the unlawfulness of
petitioners arrest stands out just the same.
Section 5, Rule 113 of the Rules on Criminal Procedure provides the only occasions on which a person may be arrested without a warrant, to wit:
Section 5. Arrest without warrant; when lawful.A peace officer or a private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the
person to be arrested has committed it; and
(c)
When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

163
164
165
166
167
168
Page 43 of 81

It is obvious that based on the testimonies of the arresting barangay tanod, not one of these circumstances was obtaining at the time petitioner was
arrested. By their own admission, petitioner was not committing an offense at the time he alighted from the bus, nor did he appear to be then
committing an offense.169[20] The tanod did not have probable cause either to justify petitioners warrantless arrest.
For the exception in Section 5(a), Rule 113 to operate, this Court has ruled that two (2) elements must be present: (1) the person to be arrested must
execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in
the presence or within the view of the arresting officer. 170[21] Here, petitioners act of looking around after getting off the bus was but natural as he was
finding his way to his destination. That he purportedly attempted to run away as the tanod approached him is irrelevant and cannot by itself be
construed as adequate to charge the tanod with personal knowledge that petitioner had just engaged in, was actually engaging in or was attempting to
engage in criminal activity. More importantly, petitioner testified that he did not run away but in fact spoke with the barangay tanod when they
approached him.
Even taking the prosecutions version generally as the truth, in line with our assumption from the start, the conclusion will not be any different. It is not
unreasonable to expect that petitioner, walking the street at night, after being closely observed and then later tailed by three unknown persons, would
attempt to flee at their approach. Flight per se is not synonymous with guilt and must not always be attributed to ones consciousness of guilt. 171[22] Of
persuasion was the Michigan Supreme Court when it ruled in People v. Shabaz172[23] that [f]light alone is not a reliable indicator of guilt without other
circumstances because flight alone is inherently ambiguous. Alone, and under the circumstances of this case, petitioners flight lends itself just as easily
to an innocent explanation as it does to a nefarious one.
Moreover, as we pointed out in People v. Tudtud,173[24] [t]he phrase in his presence therein, connot[es] penal knowledge on the part of the arresting
officer. The right of the accused to be secure against any unreasonable searches on and seizure of his own body and any deprivation of his liberty
being a most basic and fundamental one, the statute or rule that allows exception to the requirement of a warrant of arrest is strictly construed. Its
application cannot be extended beyond the cases specifically provided by law.174[25]
Indeed, the supposed acts of petitioner, even assuming that they appeared dubious, cannot be viewed as sufficient to incite suspicion of criminal activity
enough to validate his warrantless arrest. 175[26] If at all, the search most permissible for the tanod to conduct under the prevailing backdrop of the case
was a stop-and-frisk to allay any suspicion they have been harboring based on petitioners behavior. However, a stop-and-frisk situation, following Terry
v. Ohio,176[27] must precede a warrantless arrest, be limited to the persons outer clothing, and should be grounded upon a genuine reason, in light of
the police officers experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him. 177[28]
Accordingly, petitioners waiver of his right to question his arrest notwithstanding, the marijuana leaves allegedly taken during the search cannot be
admitted in evidence against him as they were seized during a warrantless search which was not lawful. 178[29] As we pronounced in People v. Bacla-an
A waiver of an illegal warrantless arrest does not also mean a waiver of the inadmissibility of evidence seized during an illegal warrantless
arrest. The following searches and seizures are deemed permissible by jurisprudence: (1) search of moving vehicles (2) seizure in plain view (3)
customs searches (4) waiver or consent searches (5) stop and frisk situations (Terry Search) and (6) search incidental to a lawful arrest. The last
includes a valid warrantless search and seizure pursuant to an equally valid warrantless arrest, for, while as a rule, an arrest is considered legitimate if
effected with a valid warrant of arrest, the Rules of Court recognize permissible warrantless arrests, to wit: (1) arrests in flagrante delicto, (2) arrests
effected in hot pursuit, and, (3) arrests of escaped prisoners.179[30]
When petitioner was arrested without a warrant, he was neither caught in flagrante delicto committing a crime nor was the arrest effected in hot pursuit.
Verily, it cannot therefore be reasonably argued that the warrantless search conducted on petitioner was incidental to a lawful arrest.
In its Comment, the Office of the Solicitor General posits that apart from the warrantless search being incidental to his lawful arrest, petitioner had
consented to the search. We are not convinced. As we explained in Caballes v. Court of Appeals180[31]

169
170
171
172
173
174
175
176
177
178
179
Page 44 of 81

Doubtless, the constitutional immunity against unreasonable searches and seizures is a personal right which may be waived. The consent must be
voluntary in order to validate an otherwise illegal detention and search, i.e., the consent is unequivocal, specific, and intelligently given,
uncontaminated by any duress or coercion. Hence, consent to a search is not to be lightly inferred, but must be shown by clear and convincing
evidence. The question whether a consent to a search was in fact voluntary is a question of fact to be determined from the totality of all the
circumstances. Relevant to this determination are the following characteristics of the person giving consent and the environment in which consent is
given: (1) the age of the defendant; (2) whether he was in a public or secluded location; (3) whether he objected to the search or passively looked on;
(4) the education and intelligence of the defendant; (5) the presence of coercive police procedures; (6) the defendant's belief that no incriminating
evidence will be found; (7) the nature of the police questioning; (8) the environment in which the questioning took place; and (9) the possibly vulnerable
subjective state of the person consenting. It is the State which has the burden of proving, by clear and positive testimony, that the necessary consent
was obtained and that it was freely and voluntarily given.181[32]
In the case at bar, following the theory of the prosecution albeit based on conflicting testimonies on when petitioners bag was actually opened, it is
apparent that petitioner was already under the coercive control of the public officials who had custody of him when the search of his bag was
demanded. Moreover, the prosecution failed to prove any specific statement as to how the consent was asked and how it was given, nor the specific
words spoken by petitioner indicating his alleged "consent." Even granting that petitioner admitted to opening his bag when Ordoo asked to see its
contents, his implied acquiescence, if at all, could not have been more than mere passive conformity given under coercive or intimidating circumstances
and hence, is considered no consent at all within the contemplation of the constitutional guarantee. 182[33] As a result, petitioners lack of objection to the
search and seizure is not tantamount to a waiver of his constitutional right or a voluntary submission to the warrantless search and seizure. 183[34]
III.
Notably, the inadmissibility in evidence of the seized marijuana leaves for being the fruit of an unlawful search is not the lone cause that militates
against the case of the prosecution. We likewise find that it has failed to convincingly establish the identity of the marijuana leaves purportedly taken
from petitioners bag.
In all prosecutions for violation of the Dangerous Drugs Act, the following elements must concur: (1) proof that the transaction took place; and (2)
presentation in court of the corpus delicti or the illicit drug as evidence.184[35] The existence of dangerous drugs is a condition sine qua non for
conviction for the illegal sale of dangerous drugs, it being the very corpus delicti of the crime.185[36]
In a line of cases, we have ruled as fatal to the prosecutions case its failure to prove that the specimen submitted for laboratory examination was the
same one allegedly seized from the accused. 186[37] There can be no crime of illegal possession of a prohibited drug when nagging doubts persist on
whether the item confiscated was the same specimen examined and established to be the prohibited drug. 187[38] As we discussed in People v.
Orteza188[39], where we deemed the prosecution to have failed in establishing all the elements necessary for conviction of appellant for illegal sale of
shabu
First, there appears nothing in the record showing that police officers complied with the proper procedure in the custody of seized drugs as specified in
People v. Lim, i.e., any apprehending team having initial control of said drugs and/or paraphernalia should, immediately after seizure or confiscation,
have the same physically inventoried and photographed in the presence of the accused, if there be any, and or his representative, who shall be required
to sign the copies of the inventory and be given a copy thereof. The failure of the agents to comply with the requirement raises doubt whether what was
submitted for laboratory examination and presented in court was actually recovered from appellant. It negates the presumption that official duties have
been regularly performed by the police officers.
In People v. Laxa, where the buy-bust team failed to mark the confiscated marijuana immediately after the apprehension of the accused, the Court held
that the deviation from the standard procedure in anti-narcotics operations produced doubts as to the origins of the marijuana. Consequently, the Court
concluded that the prosecution failed to establish the identity of the corpus delicti.
The Court made a similar ruling in People v. Kimura, where the Narcom operatives failed to place markings on the seized marijuana at the time the
accused was arrested and to observe the procedure and take custody of the drug.
More recently, in Zarraga v. People, the Court held that the material inconsistencies with regard to when and where the markings on the shabu were
made and the lack of inventory on the seized drugs created reasonable doubt as to the identity of the corpus delicti. The Court thus acquitted the
accused due to the prosecutions failure to indubitably show the identity of the shabu.

180
181
182
183
184
185
186
187
188
Page 45 of 81

In the case at bar, after the arrest of petitioner by the barangay tanod, the records only show that he was taken to the house of the barangay captain
and thereafter to the police station. The Joint Affidavit 189[40] executed by the tanod merely states that they confiscated the marijuana leaves which they
brought to the police station together with petitioner. Likewise, the Receipt 190[41] issued by the Aringay Police Station merely acknowledged receipt of
the suspected drugs supposedly confiscated from petitioner.
Not only did the three tanod contradict each other on the matter of when petitioners bag was opened, they also gave conflicting testimony on who
actually opened the same. The prosecution, despite these material inconsistencies, neglected to explain the discrepancies. Even more damning to its
cause was the admission by Laya, the forensic chemist, that he did not know how the specimen was taken from petitioner, how it reached the police
authorities or whose marking was on the cellophane wrapping of the marijuana. The non-presentation, without justifiable reason, of the police officers
who conducted the inquest proceedings and marked the seized drugs, if such was the case, is fatal to the case. Plainly, the prosecution neglected to
establish the crucial link in the chain of custody of the seized marijuana leaves from the time they were first allegedly discovered until they were brought
for examination by Laya.
The Court of Appeals found as irrelevant the failure of the prosecution to establish the chain of custody over the seized marijuana as such [f]inds
prominence only when the existence of the seized prohibited drug is denied.191[42] We cannot agree.
To buttress its ratiocination, the appellate court narrowed on petitioners testimony that the marijuana was taken from his bag, without taking the
statement in full context.192[43] Contrary to the Court of Appeals findings, although petitioner testified that the marijuana was taken from his bag, he
consistently denied ownership thereof.193[44] Furthermore, it defies logic to require a denial of ownership of the seized drugs before the principle of
chain of custody comes into play.
The onus of proving culpability in criminal indictment falls upon the State. In conjunction with this, law enforcers and public officers alike have the
corollary duty to preserve the chain of custody over the seized drugs. The chain of evidence is constructed by proper exhibit handling, storage, labeling
and recording, and must exist from the time the evidence is found until the time it is offered in evidence. Each person who takes possession of the
specimen is duty-bound to detail how it was cared for, safeguarded and preserved while in his or her control to prevent alteration or replacement while
in custody. This guarantee of the integrity of the evidence to be used against an accused goes to the very heart of his fundamental rights.
The presumption of regularity in the performance of official duty invoked by the prosecution and relied upon by the courts a quo cannot by itself
overcome the presumption of innocence nor constitute proof of guilt beyond reasonable doubt. 194[45] Among the constitutional rights enjoyed by an
accused, the most primordial yet often disregarded is the presumption of innocence. This elementary principle accords every accused the right to be
presumed innocent until the contrary is proven beyond reasonable doubt. Thus, the burden of proving the guilt of the accused rests upon the
prosecution.
Concededly, the evidence of the defense is weak and uncorroborated. Nevertheless, this [c]annot be used to advance the cause of the prosecution as
its evidence must stand or fall on its own weight and cannot be allowed to draw strength from the weakness of the defense. 195[46] Moreover, where the
circumstances are shown to yield two or more inferences, one inconsistent with the presumption of innocence and the other compatible with the finding
of guilt, the court must acquit the accused for the reason that the evidence does not satisfy the test of moral certainty and is inadequate to support a
judgment of conviction.196[47]
Drug addiction has been invariably denounced as an especially vicious crime, 197[48] and one of the most pernicious evils that has ever crept into our
society,198[49] for those who become addicted to it not only slide into the ranks of the living dead, what is worse, they become a grave menace to the
safety of law-abiding members of society,199[50] whereas peddlers of drugs are actually agents of destruction. 200[51] Indeed, the havoc created by the
ruinous effects of prohibited drugs on the moral fiber of society cannot be underscored enough. However, in the rightfully vigorous campaign of the

189
190
191
192
193
194
195
196
197
198
199
200
Page 46 of 81

government to eradicate the hazards of drug use and drug trafficking, it cannot be permitted to run roughshod over an accuseds right to be presumed
innocent until proven to the contrary and neither can it shirk from its corollary obligation to establish such guilt beyond reasonable doubt.
In this case, the totality of the evidence presented utterly fails to overcome the presumption of innocence which petitioner enjoys. The failure of the
prosecution to prove all the elements of the offense beyond reasonable doubt must perforce result in petitioners exoneration from criminal liability.
IV.
A final word. We find it fitting to take this occasion to remind the courts to exercise the highest degree of diligence and prudence in deliberating upon the
guilt of accused persons brought before them, especially in light of the fundamental rights at stake. Here, we note that the courts a quo neglected to
give more serious consideration to certain material issues in the determination of the merits of the case. We are not oblivious to the fact that in some
instances, law enforcers resort to the practice of planting evidence to extract information or even harass civilians. Accordingly, courts are duty-bound to
be [e]xtra vigilant in trying drug cases lest an innocent person be made to suffer the unusually severe penalties for drug offenses. 201[52] In the same
vein, let this serve as an admonition to police officers and public officials alike to perform their mandated duties with commitment to the highest degree
of diligence, righteousness and respect for the law.
WHEREFORE, the assailed Decision is REVERSED and SET ASIDE. Petitioner Arsenio Vergara Valdez is ACQUITTED on reasonable doubt. The
Director of the Bureau of Corrections is directed to cause the immediate release of petitioner, unless the latter is being lawfully held for another cause;
and to inform the Court of the date of his release, or the reasons for his continued confinement, within ten (10) days from notice. No costs.
SO ORDERED.

201
Page 47 of 81

EN BANC
G.R. No. 101837 February 11, 1992
ROLITO GO y TAMBUNTING, petitioner,
vs.
THE COURT OF APPEALS, THE HON. BENJAMIN V. PELAYO, Presiding Judge, Branch 168, Regional Trial Court, NCJR Pasig, M.M., and
PEOPLE OF THE PHILIPPINES, respondents.
FELICIANO, J.:
According to the findings of the San Juan Police in their Investigation Report, 1 on 2 July 1991, Eldon Maguan was driving his car along Wilson St., San
Juan, Metro Manila, heading towards P. Guevarra St. Petitioner entered Wilson St., where it is a one-way street and started travelling in the opposite or
"wrong" direction. At the corner of Wilson and J. Abad Santos Sts., petitioner's and Maguan's cars nearly bumped each other. Petitioner alighted from
his car, walked over and shot Maguan inside his car. Petitioner then boarded his car and left the scene. A security guard at a nearby restaurant was
able to take down petitioner's car plate number. The police arrived shortly thereafter at the scene of the shooting and there retrieved an empty shell and
one round of live ammunition for a 9 mm caliber pistol. Verification at the Land Transportation Office showed that the car was registered to one Elsa Ang
Go.
The following day, the police returned to the scene of the shooting to find out where the suspect had come from; they were informed that petitioner had
dined at Cravings Bake Shop shortly before the shooting. The police obtained a facsimile or impression of the credit card used by petitioner from the
cashier of the bake shop. The security guard of the bake shop was shown a picture of petitioner and he positively identified him as the same person
who had shot Maguan. Having established that the assailant was probably the petitioner, the police launched a manhunt for petitioner.
On 8 July 1991, petitioner presented himself before the San Juan Police Station to verify news reports that he was being hunted by the police; he was
accompanied by two (2) lawyers. The police forthwith detained him. An eyewitness to the shooting, who was at the police station at that time, positively
identified petitioner as the gunman. That same day, the police promptly filed a complaint for frustrated homicide 2 against petitioner with the Office of the
Provincial Prosecutor of Rizal. First Assistant Provincial Prosecutor Dennis Villa Ignacio ("Prosecutor") informed petitioner, in the presence of his
lawyers, that he could avail himself of his right to preliminary investigation but that he must first sign a waiver of the provisions of Article 125 of the
Revised Penal Code. Petitioner refused to execute any such waiver.
On 9 July 1991, while the complaint was still with the Prosecutor, and before an information could be filed in court, the victim, Eldon Maguan, died of his
gunshot wound(s).
Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for frustrated homicide, filed an information for murder 3 before the
Regional Trial Court. No bail was recommended. At the bottom of the information, the Prosecutor certified that no preliminary investigation had been
conducted because the accused did not execute and sign a waiver of the provisions of Article 125 of the Revised Penal Code.
In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with the Prosecutor an omnibus motion for immediate release and proper
preliminary investigation, 4 alleging that the warrantless arrest of petitioner was unlawful and that no preliminary investigation had been conducted
before the information was filed. Petitioner also prayed that he be released on recognizance or on bail. Provincial Prosecutor Mauro Castro, acting on
the omnibus motion, wrote on the last page of the motion itself that he interposed no objection to petitioner being granted provisional liberty on a cash
bond of P100,000.00.
On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle 5 in order to expedite action on the Prosecutor's bail recommendation. The
case was raffled to the sala of respondent Judge, who, on the same date, approved the cash bond 6 posted by petitioner and ordered his release. 7
Petitioner was in fact released that same day.
On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for leave to conduct preliminary investigation 8 and prayed that in the
meantime all proceedings in the court be suspended. He stated that petitioner had filed before the Office of the Provincial Prosecutor of Rizal an
omnibus motion for immediate release and preliminary investigation, which motion had been granted by Provincial Prosecutor Mauro Castro, who also
agreed to recommend cash bail of P100,000.00. The Prosecutor attached to the motion for leave a copy of petitioner's omnibus motion of 11 July 1991.
Also on 16 July 1991, the trial court issued an Order 9 granting leave to conduct preliminary investigation and cancelling the arraignment set for 15
August 1991 until after the prosecution shall have concluded its preliminary investigation.
On 17 July 1991, however, respondent Judge motu proprio issued an Order, 10 embodying the following: (1) the 12 July 1991 Order which granted bail
was recalled; petitioner was given 48 hours from receipt of the Order to surrender himself; (2) the 16 July 1991 Order which granted leave to the
prosecutor to conduct preliminary investigation was recalled and cancelled; (3) petitioner's omnibus motion for immediate release and preliminary
investigation dated 11 July 1991 was treated as a petition for bail and set for hearing on 23 July 1991.
On 19 July 1991, petitioner filed a petition for certiorari, prohibition and mandamus before the Supreme Court assailing the 17 July 1991 Order,
contending that the information was null and void because no preliminary investigation had been previously conducted, in violation of his right to due
process. Petitioner also moved for suspension of all proceedings in the case pending resolution by the Supreme Court of his petition; this motion was,
however, denied by respondent Judge.
On 23 July 1991, petitioner surrendered to the police.
By a Resolution dated 24 July 1991, this Court remanded the petition for certiorari, prohibition and mandamus to the Court of Appeals.
On 16 August 1991, respondent Judge issued an order in open court setting the arraignment of petitioner on 23 August 1991.
On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain his arraignment.
On 23 August 1991, respondent judge issued a Commitment Order directing the Provincial Warden of Rizal to admit petitioner into his custody at the
Rizal Provincial Jail. On the same date, petitioner was arraigned. In view, however, of his refusal to enter a plea, the trial court entered for him a plea of
not guilty. The Trial court then set the criminal case for continuous hearings on 19, 24 and 26 September; on 2, 3, 11 and 17 October; and on 7, 8, 14,
15, 21 and 22 November 1991. 11
On 27 August 1991, petitioner filed a petition for habeas corpus 12 in the Court of Appeals. He alleged that in view of public respondent's failure to join
issues in the petition for certiorari earlier filed by him, after the lapse of more than a month, thus prolonging his detention, he was entitled to be released
on habeas corpus.
On 30 August 1991, the Court of Appeals issued the writ of habeas corpus. 13 The petition for certiorari, prohibition and mandamus, on the one hand,
and the petition for habeas corpus, upon the other, were subsequently consolidated in the Court of Appeals.
The Court of Appeals, on 2 September 1991, issued a resolution denying petitioner's motion to restrain his arraignment on the ground that that motion
had become moot and academic.
On 19 September 1991, trial of the criminal case commenced and the prosecution presented its first witness.
On 23 September 1991, the Court of Appeals rendered a consolidated decision 14 dismissing the two (2) petitions, on the following grounds:
a. Petitioner's warrantless arrest was valid because the offense for which he was arrested and charged had been "freshly committed." His identity had
been established through investigation. At the time he showed up at the police station, there had been an existing manhunt for him. During the
confrontation at the San Juan Police Station, one witness positively identified petitioner as the culprit.
b. Petitioner's act of posting bail constituted waiver of any irregularity attending his arrest. He waived his right to preliminary investigation by not
invoking it properly and seasonably under the Rules.
Page 48 of 81

c. The trial court did not abuse its discretion when it issued the 17 July 1991 Order because the trial court had the inherent power to amend and control
its processes so as to make them conformable to law and justice.
d. Since there was a valid information for murder against petitioner and a valid commitment order (issued by the trial judge after petitioner surrendered
to the authorities whereby petitioner was given to the custody of the Provincial Warden), the petition for habeas corpus could not be granted.
On 3 October 1991, the prosecution presented three (3) more witnesses at the trial. Counsel for petitioner also filed a "Withdrawal of Appearance" 15
with the trial court, with petitioner's conformity.
On 4 October 1991, the present Petition for Review on Certiorari was filed. On 14 October 1991, the Court issued a Resolution directing respondent
Judge to hold in abeyance the hearing of the criminal case below until further orders from this Court.
In this Petition for Review, two (2) principal issues need to be addressed: first, whether or not a lawful warrantless arrest had been effected by the San
Juan Police in respect of petitioner Go; and second, whether petitioner had effectively waived his right to preliminary investigation. We consider these
issues seriatim.
In respect of the first issue, the Solicitor General argues that under the facts of the case, petitioner had been validly arrested without warrant. Since
petitioner's identity as the gunman who had shot Eldon Maguan on 2 July 1991 had been sufficiently established by police work, petitioner was validly
arrested six (6) days later at the San Juan Police Station. The Solicitor General invokes Nazareno v. Station Commander, etc., et al., 16 one of the
seven (7) cases consolidated with In the Matter of the Petition for Habeas Corpus of Roberto Umil, etc., v. Ramos, et al. 17 where a majority of the Court
upheld a warrantees arrest as valid although effected fourteen (14) days after the killing in connection with which Nazareno had been arrested.
Accordingly, in the view of the Solicitor General, the provisions of Section 7, Rule 112 of the Rules of Court were applicable and because petitioner had
declined to waive the provisions of Article 125 of the Revised Penal Code, the Prosecutor was legally justified in filing the information for murder even
without preliminary investigation.
On the other hand, petitioner argues that he was not lawfully arrested without warrant because he went to the police station six (6) days after the
shooting which he had allegedly perpetrated. Thus, petitioner argues, the crime had not been "just committed" at the time that he was arrested.
Moreover, none of the police officers who arrested him had been an eyewitness to the shooting of Maguan and accordingly none had the "personal
knowledge" required for the lawfulness of a warrantees arrest. Since there had been no lawful warrantless arrest. Section 7, Rule 112 of the Rules of
Court which establishes the only exception to the right to preliminary investigation, could not apply in respect of petitioner.
The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is, in the circumstances of this case, misplaced. In Umil v. Ramos, by an
eight-to-six vote, the Court sustained the legality of the warrantless arrests of petitioners made from one (1) to fourteen days after the actual
commission of the offenses, upon the ground that such offenses constituted "continuing crimes." Those offenses were subversion, membership in an
outlawed organization like the New People's Army, etc. In the instant case, the offense for which petitioner was arrested was murder, an offense which
was obviously commenced and completed at one definite location in time and space. No one had pretended that the fatal shooting of Maguan was a
"continuing crime."
Secondly, we do not believe that the warrantees "arrest" or detention of petitioner in the instant case falls within the terms of Section 5 of Rule 113 of
the 1985 Rules on Criminal Procedure which provides as follows:
Sec. 5 Arrest without warrant; when lawful. A peace officer or a private person may, without warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it;
and
(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or
jail, and he shall be proceed against in accordance with Rule 112, Section 7.
Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The "arresting" officers obviously were not present, within the meaning of
Section 5(a), at the time petitioner had allegedly shot Maguan. Neither could the "arrest" effected six (6) days after the shooting be reasonably regarded
as effected "when [the shooting had] in fact just been committed" within the meaning of Section 5(b). Moreover, none of the "arresting" officers had any
"personal knowledge" of facts indicating that petitioner was the gunman who had shot Maguan. The information upon which the police acted had been
derived from statements made by alleged eyewitnesses to the shooting one stated that petitioner was the gunman; another was able to take down
the alleged gunman's car's plate number which turned out to be registered in petitioner's wife's name. That information did not, however, constitute
"personal knowledge." 18
It is thus clear to the Court that there was no lawful warrantless arrest of petitioner within the meaning of Section 5 of Rule 113. It is clear too that
Section 7 of Rule 112, which provides:
Sec. 7 When accused lawfully arrested without warrant. When a person is lawfully arrested without a warrant for an offense cognizable by the
Regional Trial Court the complaint or information may be filed by the offended party, peace officer or fiscal without a preliminary investigation having
been first conducted, on the basis of the affidavit of the offended party or arresting office or person
However, before the filing of such complaint or information, the person arrested may ask for a preliminary investigation by a proper officer in
accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, with the assistance of a
lawyer and in case of non-availability of a lawyer, a responsible person of his choice. Notwithstanding such waiver, he may apply for bail as provided in
the corresponding rule and the investigation must be terminated within fifteen (15) days from its inception.
If the case has been filed in court without a preliminary investigation having been first conducted, the accused may within five (5) days from the time he
learns of the filing of the information, ask for a preliminary investigation with the same right to adduce evidence in his favor in the manner prescribed in
this Rule. (Emphasis supplied)
is also not applicable. Indeed, petitioner was not arrested at all. When he walked into San Juan Police Station, accompanied by two (2) lawyers, he in
fact placed himself at the disposal of the police authorities. He did not state that he was "surrendering" himself, in all probability to avoid the implication
he was admitting that he had slain Eldon Maguan or that he was otherwise guilty of a crime. When the police filed a complaint for frustrated homicide
with the Prosecutor, the latter should have immediately scheduled a preliminary investigation to determine whether there was probable cause for
charging petitioner in court for the killing of Eldon Maguan. Instead, as noted earlier, the Prosecutor proceed under the erroneous supposition that
Section 7 of Rule 112 was applicable and required petitioner to waive the provisions of Article 125 of the Revised Penal Code as a condition for carrying
out a preliminary investigation. This was substantive error, for petitioner was entitled to a preliminary investigation and that right should have been
accorded him without any conditions. Moreover, since petitioner had not been arrested, with or without a warrant, he was also entitled to be released
forthwith subject only to his appearing at the preliminary investigation.
Turning to the second issue of whether or not petitioner had waived his right to preliminary investigation, we note that petitioner had from the very
beginning demanded that a preliminary investigation be conducted. As earlier pointed out, on the same day that the information for murder was filed
with the Regional Trial Court, petitioner filed with the Prosecutor an omnibus motion for immediate release and preliminary investigation. The Solicitor
General contends that that omnibus motion should have been filed with the trial court and not with the Prosecutor, and that the petitioner should
accordingly be held to have waived his right to preliminary investigation. We do not believe that waiver of petitioner's statutory right to preliminary
investigation may be predicated on such a slim basis. The preliminary investigation was to be conducted by the Prosecutor, not by the Regional Trial
Court. It is true that at the time of filing of petitioner's omnibus motion, the information for murder had already been filed with the Regional Trial Court: it
is not clear from the record whether petitioner was aware of this fact at the time his omnibus motion was actually filed with the Prosecutor. In Crespo v.
Mogul, 19 this Court held:
The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists to warranting the prosecution of
the accused is terminated upon the filing of the information in the proper court. In turn, as above stated, the filing of said information sets in motion the
criminal action against the accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the case, at such stage, the permission of
the Court must be secured. After such reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for appropriate
Page 49 of 81

action. While it is true that the fiscal has the quasi-judicial discretion to determine whether or not a criminal case should be filed in court or not, once the
case had already been brought to Court whatever disposition the fiscal may feel should be proper in the case thereafter should be addressed for the
consideration of the Court. The only qualification is that the action of the Court must not impair the substantial rights of the accused., or the right of the
People to due process of law.
xxx xxx xxx
The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case [such] as its dismissal or the
conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of
criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to
do with the case before it. . . . 20 (Citations omitted; emphasis supplied)
Nonetheless, since petitioner in his omnibus motion was asking for preliminary investigation and not for a re-investigation (Crespo v. Mogul involved a
re-investigation), and since the Prosecutor himself did file with the trial court, on the 5th day after filing the information for murder, a motion for leave to
conduct preliminary investigation (attaching to his motion a copy of petitioner's omnibus motion), we conclude that petitioner's omnibus motion was in
effect filed with the trial court. What was crystal clear was that petitioner did ask for a preliminary investigation on the very day that the information was
filed without such preliminary investigation, and that the trial court was five (5) days later apprised of the desire of the petitioner for such preliminary
investigation. Finally, the trial court did in fact grant the Prosecutor's prayer for leave to conduct preliminary investigation. Thus, even on the (mistaken)
supposition apparently made by the Prosecutor that Section 7 of Rule 112 of the Revised Court was applicable, the 5-day reglementary period in
Section 7, Rule 112 must be held to have been substantially complied with.
We believe and so hold that petitioner did not waive his right to a preliminary investigation. While that right is statutory rather than constitutional in its
fundament, since it has in fact been established by statute, it is a component part of due process in criminal justice. 21 The right to have a preliminary
investigation conducted before being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty, is not a
mere formal or technical right; it is a substantive right. The accused in a criminal trial is inevitably exposed to prolonged anxiety, aggravation,
humiliation, not to speak of expense; the right to an opportunity to avoid a process painful to any one save, perhaps, to hardened criminals, is a
valuable right. To deny petitioner's claim to a preliminary investigation would be to deprive him the full measure of his right to due process.
The question may be raised whether petitioner still retains his right to a preliminary investigation in the instant case considering that he was already
arraigned on 23 August 1991. The rule is that the right to preliminary investigation is waived when the accused fails to invoke it before or at the time of
entering a plea at arraignment. 22 In the instant case, petitioner Go had vigorously insisted on his right to preliminary investigation before his
arraignment. At the time of his arraignment, petitioner was already before the Court of Appeals on certiorari, prohibition and mandamus precisely asking
for a preliminary investigation before being forced to stand trial.
Again, in the circumstances of this case, we do not believe that by posting bail petitioner had waived his right to preliminary investigation. In People v.
Selfaison, 23 we did hold that appellants there had waived their right to preliminary investigation because immediately after their arrest, they filed bail
and proceeded to trial "without previously claiming that they did not have the benefit of a preliminary investigation." 24 In the instant case, petitioner Go
asked for release on recognizance or on bail and for preliminary investigation in one omnibus motion. He had thus claimed his right to preliminary
investigation before respondent Judge approved the cash bond posted by petitioner and ordered his release on 12 July 1991. Accordingly, we cannot
reasonably imply waiver of preliminary investigation on the part of petitioner. In fact, when the Prosecutor filed a motion in court asking for leave to
conduct preliminary investigation, he clearly if impliedly recognized that petitioner's claim to preliminary investigation was a legitimate one.
We would clarify, however, that contrary to petitioner's contention the failure to accord preliminary investigation, while constituting a denial of the
appropriate and full measure of the statutory process of criminal justice, did not impair the validity of the information for murder nor affect the jurisdiction
of the trial court. 25
It must also be recalled that the Prosecutor had actually agreed that petitioner was entitled to bail. This was equivalent to an acknowledgment on the
part of the Prosecutor that the evidence of guilt then in his hands was not strong. Accordingly, we consider that the 17 July 1991 order of respondent
Judge recalling his own order granting bail and requiring petitioner to surrender himself within forty-eight (48) hours from notice, was plainly arbitrary
considering that no evidence at all and certainly no new or additional evidence had been submitted to respondent Judge that could have justified
the recall of his order issued just five (5) days before. It follows that petitioner was entitled to be released on bail as a matter of right.
The final question which the Court must face is this: how does the fact that, in the instant case, trial on the merits has already commenced, the
Prosecutor having already presented four (4) witnesses, impact upon, firstly, petitioner's right to a preliminary investigation and, secondly, petitioner's
right to be released on bail? Does he continue to be entitled to have a preliminary investigation conducted in respect of the charge against him? Does
petitioner remain entitled to be released on bail?
Turning first to the matter of preliminary investigation, we consider that petitioner remains entitled to a preliminary investigation although trial on the
merits has already began. Trial on the merits should be suspended or held in abeyance and a preliminary investigation forthwith accorded to petitioner.
26
It is true that the Prosecutor might, in view of the evidence that he may at this time have on hand, conclude that probable cause exists; upon the other
hand, the Prosecutor conceivably could reach the conclusion that the evidence on hand does not warrant a finding of probable cause. In any event, the
constitutional point is that petitioner was not accorded what he was entitled to by way of procedural due process. 27 Petitioner was forced to undergo
arraignment and literally pushed to trial without preliminary investigation, with extraordinary haste, to the applause from the audience that filled the
courtroom. If he submitted to arraignment at trial, petitioner did so "kicking and screaming," in a manner of speaking . During the proceedings held
before the trial court on 23 August 1991, the date set for arraignment of petitioner, and just before arraignment, counsel made very clear petitioner's
vigorous protest and objection to the arraignment precisely because of the denial of preliminary investigation. 28 So energetic and determined were
petitioner's counsel's protests and objections that an obviously angered court and prosecutor dared him to withdraw or walkout, promising to replace
him with counsel de oficio. During the trial, before the prosecution called its first witness, petitioner through counsel once again reiterated his objection
to going to trial without preliminary investigation: petitioner's counsel made of record his " continuing objection." 29 Petitioner had promptly gone to the
appellate court on certiorari and prohibition to challenge the lawfulness of the procedure he was being forced to undergo and the lawfulness of his
detention. 30 If he did not walk out on the trial, and if he cross-examined the prosecution's witnesses, it was because he was extremely loath to be
represented by counsel de oficio selected by the trial judge, and to run the risk of being held to have waived also his right to use what is frequently the
only test of truth in the judicial process.
In respect of the matter of bail, we similarly believe and so hold that petitioner remains entitled to be released on bail as a matter of right. Should the
evidence already of record concerning petitioner's guilt be, in the reasonable belief of the Prosecutor, strong, the Prosecutor may move in the trial court
for cancellation of petitioner's bail. It would then be up to the trial court, after a careful and objective assessment of the evidence on record, to grant or
deny the motion for cancellation of bail.
To reach any other conclusions here, that is, to hold that petitioner's rights to a preliminary investigation and to bail were effectively obliterated by
evidence subsequently admitted into the record would be to legitimize the deprivation of due process and to permit the Government to benefit from its
own wrong or culpable omission and effectively to dilute important rights of accused persons well-nigh to the vanishing point. It may be that to require
the State to accord petitioner his rights to a preliminary investigation and to bail at this point, could turn out ultimately to be largely a ceremonial
exercise. But the Court is not compelled to speculate. And, in any case, it would not be idle ceremony; rather, it would be a celebration by the State of
the rights and liberties of its own people and a re-affirmation of its obligation and determination to respect those rights and liberties.
ACCORDINGLY, the Court resolved to GRANT the Petition for Review on Certiorari. The Order of the trial court dated 17 July 1991 is hereby SET
ASIDE and NULLIFIED, and the Decision of the Court of Appeals dated 23 September 1991 hereby REVERSED.
The Office of the Provincial Prosecutor is hereby ORDERED to conduct forthwith a preliminary investigation of the charge of murder against petitioner
Go, and to complete such preliminary investigation within a period of fifteen (15) days from commencement thereof. The trial on the merits of the
criminal case in the Regional Trial Court shall be SUSPENDED to await the conclusion of the preliminary investigation.
Meantime, petitioner is hereby ORDERED released forthwith upon posting of a cash bail bond of One Hundred Thousand Pesos (P100,000.00). This
release shall be without prejudice to any lawful order that the trial court may issue, should the Office of the Provincial Prosecutor move for cancellation
of bail at the conclusion of the preliminary investigation.
Page 50 of 81

No pronouncement as to costs. This Decision is immediately executory.

SO ORDERED.
SECOND DIVISION
[A.M. No. RTJ-03-1817. June 8, 2005]
P/SR. SUPT. ORLANDO M. MABUTAS, Regional Director, Philippine Drug Enforcement Agency, Metro Manila Regional Office, complainant,
vs. JUDGE NORMA C. PERELLO, Presiding Judge, Regional Trial Court, Branch 276, Muntinlupa City, respondent.
[A.M. No. RTJ-04-1820. June 8, 2005]
CITY PROSECUTOR EDWARD M. TOGONONON, complainant, vs. JUDGE NORMA C. PERELLO, respondent.
Subject matters of the present administrative cases are two complaints against respondent Judge Norma C. Perello, Presiding Judge of the Regional
Trial Court (Branch 276) of Muntinlupa City.
Admin. Matter No. RTJ-03-1817
This case originated from a letter of Police Senior Supt. Orlando M. Mabutas, Regional Director of the Philippine Drug Enforcement Agency, Metro
Manila Regional Office. P/Sr. Supt. Mabutas complained of certain irregularities committed by respondent Judge in the grant of bail to accused Aiza
Chona Omadan in Criminal Case No. 03-265. Omadan was charged in an Information, dated April 21, 2003, with Violation of Section 11 of Republic Act
No. 9165, or the Comprehensive Dangerous Drugs Act of 2002, for the possession, custody and control of 57.78 grams of Methamphetamine
Hydrochloride (shabu), with no bail recommended.
P/Sr. Supt. Mabutass complaint was based on the memorandum submitted by Police Inspector Darwin S. Butuyan, who stated in his report, as follows:
In the evening of May 5, 2003, a colleague notified him of a scheduled preliminary investigation of Omadans case on the following day (May 6). When
P/Insp. Butuyan, together with PO2 Saturnino Mayonte and PO2 Allan Lising, went to the Office of the City Prosecutor, Assistant City Prosecutor (ACP)
Florante E. Tuy merely asked them to sign the minutes of the preliminary investigation. Omadan and her counsel were not around, and the police
officers were not furnished with a copy of Omadans counter-affidavit.
On May 8, 2003, someone handed P/Insp. Butuyan a subpoena for the arraignment of Omadan on May 9, 2003. During the scheduled arraignment,
they were surprised when ACP Vicente Francisco called PO2 Mayonte to the witness stand. Apparently, Omadan filed a petition for bail and it was
being heard on the same day. PO2 Mayonte and PO2 Lising asked ACP Francisco for a rescheduling of the hearing because they were not prepared to
testify but the former declined, saying that it is just a motion for bail. After PO2 Mayonte testified, PO2 Lising asked ACP Francisco to present him as
witness but again, the former declined since his testimony would only be corroborative. ACP Francisco also presented two (2) barangay tanods.
On May 12, 2003, P/Insp. Butuyan went to deliver a communiqu to ACP Francisco from P/Sr. Supt. Mabutas requesting that in the event bail was
granted, its implementation be held in abeyance so that the police authorities may file the necessary motion, and in order to prevent Omadan from
escaping. Since ACP Francisco was not around, they went to Branch 276 to secure a copy of the motion for bail. However, the police officers were
shocked to learn that Omadan has already been released on a P1,000,000.00 bail on May 9, 2003, which was a Friday. Court personnel also informed
them that they spent overtime work for the processing of the release papers. They asked for a copy of the transcript of stenographic notes of the
hearing held on May 9, 2003, but it was not available.
Respondent Judges Order dated May 9, 2003, granting Omadans petition for bail, reads in part:
Clearly, the evidence of guilt is not very strong for the denial of the bail. It was not proven that the object that SPO1 Mayonte allegedly saw wrapped in a
tissue paper was indeed methamphetamine hydrochloride. He is not very sure if the specimen was in fact subjected to an analysis to determine what it
was. There is also no specifying the quantity of the item.
There also seem to be an irregularity in the service of the search warrant for it was NOT witnessed by two disinterested persons. Admittedly two
Barangay Tanods were brought to the residence of accused, but they never witnessed the search because when they arrived the search had already
been completed. The wife of the owner of the residence was allegedly found in the house but she was not made to go with the searching team to
witness the search. An evaluation of the record of the search, it appears also the search warrant, showed some material defect, because no witness
who appeared to have personal knowledge of the illegal activities of the accused and husband, executed an Affidavit before the officer who issued the
search warrant. In fact the searching questions were conducted on the applicant but not on the confidential informant, who alone had the personal
knowledge of the alleged illegal activities in the vicinity. No deposition was taken of the applicant. Only the applying officers executed an affidavit, yet
had no personal knowledge of the crime as they were only told by his confidential informant. No copy of the deposition is attached to the application.
Although this court has no jurisdiction to hear the MOTION TO QUASH the search warrant however this fact are [sic] taken into consideration for the
petition to bail if only to show the strength or weakness of the prosecution evidence, to ascertain if Prosecution have [sic] a witness who has personal
knowledge of the alleged illegal activities of the accused in her home. There is none. Even the Barangay policemen Arturo Villarin, cannot tell with
certainty if drugs were indeed found in the residence of the accused.
Bail is therefore allowed in the sum of ONE MILLION PESOS (Php 1,000,000.00) which accused AIZA CHONA OMADAN may post in cash, by property
or thru a reputable bonding company, and under the additional condition that her counsel, Atty. GENE CASTILLO QUILAS guarantees her appearance
in court whenever so required.
It is SO ORDERED.[1]
Admin. Matter No. RTJ-04-1820
This case proceeded from a letter of Prosecutor Edward M. Togononon of Muntinlupa City, accusing respondent Judge of partiality, serious misconduct
in office and gross ignorance of the law, concerning the latters grant of bail in four criminal cases for Violations of R.A. No. 9165 pending before her.
In Criminal Case No. 03-065, entitled, People of the Philippines vs. Rosemarie Pascual y Mozo @ Rosema, for Violation of Section 5 of R.A. No. 9165,
accused Pascual was charged with selling, trading, delivering and giving away to another 0.20 grams of Methamphetamine Hydrochloride ( shabu), with
no bail recommended.[2] Pascual filed, on February 5, 2003, a motion for bail on the grounds that the quantity of shabu involved is minimal and the
imposable penalty is likewise minimal in degree; and that she is nine months pregnant and due to give birth anytime.[3]
On the day of arraignment, February 7, 2003, respondent Judge issued an order granting Pascuals motion for bail without hearing, which reads:
The MOTION FOR BAIL filed by Accused through counsel is granted on the reason cited thereat.
Accordingly, Accused ROSEMARIE PASCUAL Y MOZO may post her bail in the amount of P200,000.00 in cash or thru a reputable bonding company,
or by property bond for her provisional liberty.
It is SO ORDERED.[4]
ACP Francisco filed a motion for reconsideration, arguing that since the crime charged against Pascual is a capital offense, bail is not allowed as a
matter of right, and a hearing is indispensable. Respondent Judge denied the motion in her Order dated March 12, 2003, which reads, in part:
...
This Court is immediately appalled and shocked by the thirst for blood of these officials, were selling shabu in the quantity of 0.20 gram, they would put
the accused to DEATH. It seems that, to these officials LIFE IMPRISONMENT and DEATH is the only solution to this problem, without considering the
intended provision of the law, and the possible dislocation that the death of the accused will cause to his family and even to society itself. The
prosecution and some City Officials have distorted the provision of the law by considering shabu as a dangerous drug, in the category of opium puppy
(sic) or morphine. They cannot be more wrong!
In the 1961 Single Convention on Narcotic Drugs, as amended by the 1972 Protocol, Methamphetamine Hydrochloride is NEVER considered as
dangerous drugs to come under the provision of the first paragraph of Sec. 5, Republic Act No. 9165. The definition of dangerous drugs under Sec. 3,
letter J of the said law, specifies those considered as dangerous drugs. Instead Methamphetamine Hydrochloride is considered as a controlled
precursor or essential chemical, which is found and listed in No. 7, LIST OF SUBSTANCES in SCHEDULE NO. 111 of the 1971 United Nations Single
Convention on Psychotropic Substances. Therefore, Methamphetamine Hydrochloride is a chemical substance or psychotropic substance and NOT a
dangerous drug.!
Page 51 of 81

Since the quantity is very much less than a gram of this essential chemical, is punishable with imprisonment of only 12 years, as paragraph 2 of Sec. 5,
R.A. 9165 provides. There is no law, statute, or jurisprudence that classifies 12 years imprisonment as a capital punishment, and non-bailable. Only
bloodsuckers who thirst for blood will consider death for these offenders for this kind of offense!
Prosecution will probably argue that this drug is considered dangerous under Sec. 11, R.A. 9165, but this section does not define what are dangerous
drugs, and the term is used generally to encompass all drugs. Still, this section only shows that for possession of certain quantities of shabu, is
punishable with 12 years imprisonment only, NEVER DEATH!
This Court has no quarrel with the Prosecutors if the drugs accused is pushing or found in the custody of accused are of large volume, for then they
would really deserve to DIE! Then be richer by several millions, and foster a society of drug abusers yet! But this Court cannot agree with Prosecutors
when the quantity that is peddled is not even enough to put body and soul together of accused. Foisting death on these kind of offenders, is death itself
to him who imposes such a penalty! This court cannot be that unjust and unfeeling, specially as the law itself does not so allow!
The prosecutors are also reminded that the grant of bail to all offenses is constitutionally guaranteed. Even those punishable with death or capital
offenses, only the EXCEPTIONS! It is never the rule.
...
Perhaps if these questioning individuals will provide employment to their constituents, the latter will not engage in this kind of trade to survive.[5]
In Criminal Case No. 03-082, entitled, People of the Philippines vs. Rolando Uy y Manata @ Nono, for Violation of Section 5, paragraph 1 of R.A. No.
9165, accused Uy was charged with selling, trading, delivering and giving away to Philippine National Police (PNP) operatives after a buy-bust
operation 0.12 grams of Methamphetamine Hydrochloride (shabu). ACP Romeo B. Senson recommended no bail. Uy filed a petition for bail cum motion
to suppress prosecution evidence on February 18, 2003, alleging, among others, that the arrest was illegal as no buy-bust operation happened, and the
shabu confiscated was planted on him. Without hearing, respondent Judge granted Uys petition for bail since the quantity of drug allegedly pushed is
only 0.12 grams[6] Uy was released on a P200,000.00 bail. The motion for reconsideration filed by ACP Francisco remains unresolved.
The antecedents of Criminal Case No. 03-265 entitled People of the Philippines vs. Aiza Chona Omadan y Chua and John Doe, for Violation of Section
11 of R.A. No. 9165, are set forth and dealt with in Admin. Matter No. RTJ-03-1817.
In Criminal Case No. 03-288 entitled People of the Philippines vs. Mary Jane Regencia y Mozo @ Grace, for Violation of Section 5 of R.A. No. 9165,
accused Regencia was charged with selling, delivering, trading and giving away to another 0.07 grams of Methamphetamine Hydrochloride ( shabu).
Respondent Judge likewise granted Regencias motion for bail without hearing, on the ground that the quantity of shabu involved is minimal and the
imposable penalty is also minimal.[7]
Respondent Judge was required to comment on these two complaints.
In Admin. Matter No. RTJ-03-1817, respondent Judge contends that P/Sr. Supt. Mabutass charges against her are baseless; that the preliminary
investigation conducted on Omadans case was outside her jurisdiction; that she did not have any hand or influence in ACP Franciscos handling of the
hearing on the petition for bail as it is within the latters control and supervision; that she denies that there was undue haste in the grant of bail in
Omadans favor; and that bail was granted because the prosecutions evidence of Omadans guilt was not strong.[8]
In Admin. Matter No. RTJ-04-1820, respondent Judge explains that she did not conduct any hearings on the motions/petitions for bail filed in the
criminal cases subject of the complaint because the crimes charged are not capital offenses as the quantity of shabu involved therein was minimal.
Criminal Case Nos. 03-065, 03-082, and 03-288 all involve selling of less than 5 grams of shabu. Respondent Judge believes that under R.A. No. 9165,
shabu is not a dangerous drug but merely a controlled precursor, in which the selling of less than 5 grams is punishable only with imprisonment of 12
years to 20 years. Such being the case, respondent Judge maintains that bail is a matter of right and a hearing is not required.[9]
The two complaints were consolidated and referred to Court of Appeals Associate Justice Jose C. Reyes, Jr. for investigation, report, and
recommendation.
After due proceedings, the Investigating Justice submitted his Report and Recommendation, with the following findings and conclusion:
The charges arose out of the same set of facts and are interrelated and will be discussed together.
Before proceeding further, the investigating justice will first dispose respondent judges assertion that the complaints should be dismissed outright
claiming that where sufficient judicial remedy exists, the filing of administrative complaint is not the proper remedy to correct actions of a judge citing the
case of Barbers vs. Laguio, Jr. (351 SCRA 606 [2001])
Anent the charge of partiality and serious misconduct, the investigating justice notes that these particular charges were not touched upon in the
testimony of any of the witnesses presented by the complainants. Therefore, the investigating justice finds that no evidence as to partiality nor serious
misconduct exists and these charges should be dismissed for lack of evidence.
The investigating justice will now therefore tackle only the charge of gross ignorance of the law against respondent judge.
A close scrutiny of the said Barbers case shows that it is not applicable in the present administrative complaints because in the said case it was clear
that complainants-petitioners were not merely concerned with the alleged act of the judge of rendering an unjust judgment but was also seeking the
reversal of the judgment of acquittal. They had even filed an appeal from the judgment therein of respondent judge. Thus, the Supreme Court held:
It has been held that the pendency of an appeal from a questioned judgment renders the filing of administrative charges premature. Where a sufficient
judicial remedy exists, the filing of an administrative complaint is not the proper remedy to correct the actions of a judge.
In the present administrative complaints, it was not shown that an appeal or any other proceeding had been filed to reverse the respondent judges
orders granting bail. It had not been shown that the present administrative complaints had any purpose other then seeking administrative sanctions
against respondent judge.
Turning now to the merits of the administrative complaints, the primordial issue is: Whether or not there is an ambiguity in the law as to the classification
of methamphetamine hydrochloride.
Under Section 3(x) of the R.A. No. 9165 the substance was defined as:
Methamphetamine Hydrochloride or commonly known as Shabu, Ice, Meth, or by its any other name. Refers to the drug having such chemical
composition, including any of its isomers or derivatives in any form.
It can be noted that nothing in this provision indicates the classification of the substance either as a dangerous or regulated drug.
It is respondent judges position that shabu is not expressly classified as a dangerous drug under Section 5 of R.A. No. 9165 and should therefore be
considered merely as a chemical precursor, to wit:
...
For clarity, the UN Single Convention was referred to in Section 3 of R.A. No. 9165 in relation to the definitions of dangerous drugs and controlled
precursors, to wit:
(h) Controlled Precursors and Essential Chemicals. Include those listed in Tables I and II of the 1988 UN Convention Against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances as enumerated in the attached annex, which is an integral part of this Act.
...
(j) Dangerous Drugs. Include those listed in the Schedules annexed to the 1961 Single Convention on Narcotic Drugs, as amended by the 1972
Protocol, and in the Schedules annexed to the 1971 Single Convention on Psychotropic Substances as enumerated in the attached annex which is an
integral part of this Act.
It should be noted, however, that by the plain wordings of R.A. No. 9165 dangerous drugs are not limited to those substances listed in the schedules
attached to the 1961 United Nations Single Convention on Narcotic Drugs because of the use of the word include. That is, there are other substances
which may be considered dangerous drugs even if not listed in the above-mentioned schedules.
It is also worth noting that under Section 11 of R.A. No. 9165, Methamphetamine Hydrochloride was specifically mentioned as a dangerous drug, to wit:
...
(5) 50 grams or more of methamphetamine hydrochloride or shabu;
...

Page 52 of 81

It is clear, therefore, that the lawmakers intended to classify Methamphetamine Hydrochloride or shabu as a dangerous drug. Moreover, it would be
absurd to consider methamphetamine hydrochloride a dangerous drug under Section 11 of R.A. No. 9165 and merely a precursor under Section 5 of
the same law.
In fine, there is no question that methamphetamine hydrochloride is classified as a dangerous drug.
Having made the foregoing findings, the next issue that calls for resolution is the penalty imposable to the criminal cases under consideration. This is
necessary in order to determine if the accused are entitled to bail. Under Section 13 of Article III of the 1987 Constitution, an accused shall be entitled to
bail as a matter of right unless charged with an offense punishable with a capital penalty.
The Court notes that the criminal cases under consideration can be grouped into two (2): A) Crim. Case No. 03-065 (against Rosemarie Pascual, Crim.
Case No. 03-082 (against Rolando Uy), and Crim. Case No. 03-288 (against Mary Jane Regencia), which involve selling, trading, delivering or giving
away Methamphetamine Hydrochloride; and B) Crim. Case No. 03-265 (against Aiza Chona Omadan) which involve possession of the said substance.
The investigating justice would first discuss Crim. Case No. 03-265 where the accused was charged with possession of 57.78 grams of
Methemphetamine Hydrochloride. Section 11 of R.A. No. 9165 provides that the penalty imposable is life imprisonment to death. Therefore, in the Crim.
Case No. 03-265 accused therein is not entitled to bail as a matter of right. Rightly so, a hearing was conducted before the bail was granted.
The investigating justice, after a careful consideration of the evidence presented by the complainants, opines that there is insufficient evidence to
support the allegation that bail was hastily granted to accused Aiza Chona Omadan. Therefore, the charge of gross ignorance in relation to this case
should be dismissed for lack of factual basis.
The investigating justice will now tackle the other set of cases (Crim. Case No. 03-065; Crim. Case No. 03-082; Crim. Case No. 03-288). Under the law,
these are punishable with penalty ranging from life imprisonment to death. Pertinent portions of Section 5 of R.A. No. 9165 reads:
...
As held in Managuelod vs. Paclibon, et al. (A.M. No. RTJ-02-1726, March 29, 2004).
It is imperative that judges be conversant with basic legal principles and possess sufficient proficiency in the law. In offenses punishable by reclusion
perpetua or death, the accused has no right to bail when the evidence of guilt is strong. Respondent Judge Go should have known the procedure to be
followed when a motion for admission to bail is filed by the accused. Extreme care, not to mention the highest sense of personal integrity, is required of
him in granting bail, specially in case where bail is not a matter of right. The fact that the provincial prosecutor interposed no objection to the application
for bail by the accused did not relieve respondent judge of the duty to set the motion for bail for hearing. A hearing is of utmost necessity because
certain guidelines in fixing bail (the nature of the crime, character and reputation of the accused, weight of evidence against him, the probability of the
accused appearing at the trial, among other things) call for the presentation of evidence. It was impossible for respondent judge to determine the
application of these guidelines in an ex-parte determination of the propriety of Palacols motion for bail. Thus, for his failure to conduct any hearing on
the application for bail, we hold respondent Judge Go guilty of gross ignorance of the law justifying the imposition of the severest disciplinary sanction
on him. (Emphasis supplied)
It is clear, therefore, that as to said criminal cases the accused were likewise not entitled to bail as a matter of right, hence, a hearing for the grant of
bail should have been conducted. However, in this last instance, no such hearing was conducted.
In fine, respondent judge erred in granting bail to the accused in Crim. Case No. 03-065, Crim. Case No. 03-082, and Crim. Case No. 03-288 without
hearing because the crime charge carries with it capital penalty.
As to Crim. Case No. 03-065, Crim. Case No. 03-082, and Crim. Case No. 03-288, the next issue to be resolved is: whether or not the mistake
amounted to gross ignorance of the law which would justify an administrative sanction against respondent judge.
Respondent judge, naturally, argued that she cannot be held liable asserting that to be held guilty of gross ignorance, the error must have been gross,
deliberate and malicious (Rollo, RTJ-04-1820, p. 74) and in absence of fraud, dishonesty, or corruption that judge cannot be held liable (Rollo, RTJ-041820, p. 75).
However, the Supreme Court does not always require the presence of malice to find erring judges liable for gross ignorance.
In the above-cited Managuelod case the Supreme Court held that failure to hold a hearing before granting bail in crimes involving capital punishment
constitutes gross ignorance of the law, thus:
. . . Thus, for his failure to conduct any hearing on the application for bail, we hold respondent Judge Go guilty of gross ignorance of the law justifying
the imposition of the severest disciplinary sanction on him.
The same should hold true in the present administrative cases considering that the criminal cases involved drugs, a major problem of the country today.
In conclusion, the investigating justice finds respondent judge guilty of gross ignorance of the law in relation to the granting of bail without hearing in
Crim. Case Nos. 03-065, 03-082 and 03-288 and exonerate her as to the charge in relation to Criminal Case No. 03-265.
...
The next issue then is the penalty imposable on respondent judge. In Mupas vs. Espanol (A.M. No. RTJ-04-185014, July 14, 2004) the Supreme Court
enumerated the proper penalty for gross negligence (sic), thus:
Under Section 8 of A.M. No. 01-8-10-SC amending Rule 140 of the Rules of Court on the Discipline of Justices and Judges, which took effect on
October 1, 2001, gross ignorance of the law is classified as a serious charge which carries with it a penalty of either dismissal from service, suspension
or a fine of more than P20,000.00 but not exceeding P40,000.00.[10]
Based on the foregoing, the Investigating Justice made the following recommendation:
WHEREFORE, in view of the foregoing, it is respectfully recommended that respondent Judge Norma C. Perello be DISMISSED on the ground of gross
ignorance of law in relation to the grant of bail in Criminal Case No. 03-065, Criminal Case No. 03-082, Criminal Case No. 03-288.[11]
The issue in these administrative cases is whether respondent Judge may be administratively held liable for the grant of bail in the particular criminal
cases subject of the complaints. As earlier stated, the criminal cases subject of the present administrative complaints all involve violations of R.A. No.
9165, or the Comprehensive Dangerous Drugs Act of 2002.
Admin. Matter No. RTJ-03-1817 particularly relates to Criminal Case No. 03-265 (People of the Philippines vs. Aiza Chona Omadan), involving the
possession, custody, and control of 57.78 grams of shabu, punishable under Section 11 thereof, which reads:
SEC. 11. Possession of Dangerous Drugs.-- The penalty of life imprisonment to death and a fine ranging from Five Hundred Thousand Pesos
(P500,000.00) to Ten Million Pesos (P10,000,000.00) shall be imposed upon any person, who unless authorized by law, shall possess any dangerous
drug in the following quantities, regardless of the degree of purity thereof:
...
(5) 50 grams or more of methamphetamine hydrochloride or shabu; (Emphasis supplied)
...
Under the foregoing provision, possession of 50 grams or more of methamphetamine hydrochloride or shabu is punishable by life imprisonment to
death; hence, a capital offense.[12] As such, bail becomes a matter of discretion. In this regard, Rule 114, Sec. 7 of the Rules of Court states:
No person charged with the capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when the
evidence of guilt is strong, regardless of the stage of the criminal prosecution.
This provision is based on Section 13, Article III of the 1987 Constitution, which reads:
All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable
by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the
writ of habeas corpus is suspended. Excessive bail shall not be required.
The matter of determining whether or not the evidence is strong is a matter of judicial discretion that remains with the judge. [13] Such discretion must
be sound and exercised within reasonable bounds.[14]
Under the present rules, a hearing on an application for bail is mandatory.[15] Whether bail is a matter of right or of discretion, the prosecutor should be
given reasonable notice of hearing, or at least his recommendation on the matter must be sought. In case an application for bail is filed, the judge is
entrusted to observe the following duties:
Page 53 of 81

1. In all cases, whether bail is a matter of right or discretion, notify the prosecutor of the hearing of the application for bail or require him to submit his
recommendation;
2. Where bail is a matter of discretion, conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to
present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound discretion;
3. Decide whether the guilt of the accused is strong based on the summary of evidence of the prosecution; and
4. If the guilt of the accused is not strong, discharge the accused upon the approval of the bail bond. Otherwise the bail should be denied.[16]
Based on the above-cited procedure and requirements, after the hearing, the courts order granting or refusing bail must contain a summary of the
evidence for the prosecution. A summary is defined as a comprehensive and usually brief abstract or digest of a text or statement. Based on the
summary of evidence, the judge formulates his own conclusion on whether such evidence is strong enough to indicate the guilt of the accused.[17]
In this case, respondent Judge complied with the foregoing duties. A hearing was held on the petition; the prosecution was given the opportunity to
present its evidence in support of its stance; respondent Judge based her findings on the prosecutions evidence, namely, the testimonies of P02
Saturnino Mayonte and Arturo Villarin; respondent Judges Order dated May 9, 2003 granting the accuseds petition for bail contained a summary of the
prosecutions evidence; and since it was her conclusion that the evidence of accused Omadans guilt is not strong, the petition for bail was granted.[18]
Respondent Judge did not violate procedural requirements. Records show that respondent Judge afforded the prosecution ample opportunity to present
all the evidence it had and there was no protest from the prosecution that it had been deprived of its right to present against the accused. Thus, the
Court does not find any irregularity in the grant of bail in Criminal Case No. 03-265 that would render respondent Judge administratively liable.
It is noted that the other circumstances, complained of in this case, do not relate solely to respondent Judges acts, but to the prosecutions conduct in
handling the case. Thus, P/Insp. Darwin S. Butuyan stated in his report that there is something wrong in the procedures and circumstances adopted by
the Office of the City Prosecutor of Muntinlupa City and Branch 276, RTC, Muntinlupa City in handling the case leading to the granting of bail to
accused Aiza Chona Omadan y Chua.[19]
The Court recognizes that the manner in which the strength of an accuseds guilt is proven still primarily rests on the prosecution. The prosecutor has
the right to control the quantum of evidence and the order of presentation of the witnesses, in support of the denial of bail. After all, all criminal actions
are prosecuted under the direction and control of the public prosecutor.[20] It was the prosecutions judgment to limit the presentation of evidence to two
witnesses, as it felt that the testimonies of the other witnesses would be merely corroborative. It is beyond respondent Judges authority to compel the
public prosecutor to exercise its discretion in a way respondent Judge deems fit, so long as such exercise of discretion will not defeat the purpose for
which the hearing was held, i.e., to determine whether strong evidence of guilt exists such that the accused may not be entitled to bail.
In any event, the complainant in this case had also filed a letter-complaint with the Department of Justice against the concerned public prosecutors.[21]
Such matter is best left handled by the Department, and the Court will not interfere on the matter.
Admin. Matter No. RTJ-04-1820, however, portrays an entirely different picture.
In this case, respondent Judge granted bail in Criminal Cases Nos. 03-065, 03-082, and 03-288 without the requisite hearing. In so doing, it was
respondent Judges defense that under R.A. No. 9165, shabu is not a dangerous drug but merely a controlled precursor, in which the selling of less than
5 grams is punishable only with imprisonment of 12 years to 20 years, and as such, bail is a matter of right and a hearing is not required. Respondent
Judge argued that:
In determining whether methamphetamine hydrochloride or shabu is indeed classified as a dangerous drug under the said Republic Act, undersigned
exhaustively studied the provision of this law and found that in Letter H, Art. 1, Section 3: Definition of Terms, Methamphetamine Hydrochloride is listed
in Table II, No. 12 of the 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, which list is attached annex, an
integral part of this Act, Methamphetamine and is listed as a CONTROLLED PRECURSOR or ESSENTIAL CHEMICAL. This is more imperatively
classified as a chemical, in Letter X of the Definition, Sec. 3, Art. 1, where shabu is considered as such chemical. Therefore, under the definition by law
itself, shabu or methamphetamine hydrochloride is classified as a controlled precursor or essential chemical.
The definition of what are considered as DANGEROUS DRUGS, is (sic) those in Letter J, Sec. 3, Art. 1 of R.A. 9165, listed in 1961 Singled Convention
on Narcotic Drugs, as amended by the 1972 Protocol, which list is again an integral part of this Act. Methamphetamine is NOT one of the enumerations
of dangerous drugs. Therefore, the selling or trading of this substance in a quantity less than a gram is punishable with an imprisonment of only twelve
(12) years as provided by the second paragraph of Section 5, Article II, is not on capital offense punishable with death or life imprisonment, is bailable.
Section 11, Art. II, of the same Act, treats of POSSESSION NOT SELLING, where possession of this substance is considered as a capital offense,
punishable with death or life imprisonment, only if the accused is in possession of it in the quantity of 50 GRAMS (50 grams), irrespective of the purity
of the substance. It becomes a capital offense only if it is in the quantity of fifty grams (50 GRAMS) under No. 5 of Section 11, Art. II. Corollarilly, if it is
less than this quantity, possession of methamphetamine hydrochloride is NOT punishable with a capital penalty, hence, bailable! To stress
POSSESSION of Methamphetamine Hydrochloride is considered as capital offense punishable with capital penalty if the quantity is 50 GRAMS (50
GRAMS), (Sec. 11, Art. II) while PUSHING of methamphetamine hydrochloride (Paragraph 2, Sec. 5) to be punishable with capital penalty must be in
the quantity of FIVE GRAMS (5 GRAMS), (Guidelines for RA 9165).[22]
To justify her granting bail in the three criminal cases, respondent Judge insists that she did so because of her belief that methamphetamine
hydrochloride or shabu is merely a precursor and therefore the sale thereof is not a capital offense. This opinion is blatantly erroneous. One need not
even go beyond the four corners of R.A. No. 9165 to see respondent Judges palpable error in the application of the law.
Respondent Judge need not exhaustively study R.A. No. 9165, as she asserted, to determine the nature of methamphetamine hydrochloride. A plain
reading of the law would immediately show that methamphetamine hydrochloride is a dangerous drug and not a controlled precursor. If only
respondent Judge prudently went over the pertinent provisions of R.A. No. 9165, particularly Section 3, items (h) and (j), and properly made the
corresponding reference to the schedules and tables annexed thereto, she would have easily ascertained that methamphetamine hydrochloride is listed
in the 1971 UN Single Convention on Psychotropic Substances, which are considered dangerous drugs. It is not listed in the 1988 UN Convention
Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, as respondent Judge stated.[23]
Dangerous Drugs are defined by Section 3, paragraph (j) of R.A. No. 9165, as including those in the Schedules listed annexed to the 1961 Single
Convention on Narcotic Drugs, as amended by the 1972 Protocol, and in the Schedules annexed to the 1971 UN Single Convention on Psychotropic
Substances, which were made an integral part of R.A. No. 9165.
Under the foregoing section, dangerous drugs are classified into: (1) narcotic drugs, as listed in the 1961 Single Convention on Narcotic Drugs, as
amended by the 1972 Protocol; and (2) psychotropic substances, as listed in the 1971 UN Single Convention on Psychotropic Substances.
For purposes of this case, the list of substances in Schedule II of the 1971 UN Single Convention of Psychotropic Substances is hereby reproduced, to
wit:
LIST OF SUBSTANCES IN SCHEDULE II
1.
AMFETAMINE (AMPHETAMINE)
2.
DEXAMFETAMINE (DEXAMPHETAMINE)
3.
FENETYLLINE DRONABINOL
4.
LEVAMFETAMINE
5.
LEVOMETHAMPHETAMINE
6.
MECLOQUALONE
7.
METAMFETAMINE
(METHAMPHETAMINE)
8.
METAMFETAMINE RACEMATE
9.
METHAQUALONE
10.
METHYLPHE NIDATE
11.
PHENCYCLIDINE (PCP)
12.
PHENMETRAZINE
Page 54 of 81

13.
SECOBARBITAL
14.
DRONABINOL (delta-9-tetrahydro-cannabinol and its stereochemical variants)
15.
ZIPEPROL
16.
2C-B (4-bromo-2,5-dimethoxyphenethylamine)
It clearly shows that methamphetamine is a psychotropic substance, or a dangerous drug.
On the other hand, under Section 3, paragraph (h) of R.A. No. 9165, controlled precursors and essential chemicals, refer to those listed in Tables I and
II of the 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, which were likewise made integral part of R.A. No.
9165, to wit:
TABLE I
TABLE II
1.
ACETIC ANHYDRIDE
1.
ACETONE
2.
N-ACETYLANTHRANILIC ACID
2.
ANTHRANILIC ACID
3.
EPHEDRIN
3.
ETHYL ETHER
4.
ERGOMETRINE
4.
HYDROCHLORIC ACID
5.
ERGOTAMINE
5.
METHYL ETHYL KETONE
6.
ISOSAFROLE
6.
PHENYLACETIC ACID
7.
LYSERGIC ACID
7.
PIPERIDINE
8.
3,4-METHYLENEDIOXYPHENYL-2 PROPANONE
8.
SULPHURIC ACID
9.
NOREPHEDRINE
9.
TOLUENE
10.
1-PHENYL-2-PROPANONE
11.

PIPERONAL

12.

POTASSIUM PERMANGANATE

13.

PSEUDOEPHEDRINE

14.

SAFROLE

It readily reveals that methamphetamine is not one of those listed as controlled precursor or essential chemical.
Given the foregoing, methamphetamine hydrochloride is a dangerous drug, and not a controlled precursor or essential chemical. That
methamphetamine and not methamphetamine hydrochloride is the term specifically listed in Schedule II of the 1971 UN Single Convention of
Psychotropic Substances does not detract from the fact that it is a dangerous drug. Section 3, paragraph (x) of R.A. No. 9165, states that
methamphetamine hydrochloride is a drug having such chemical composition, including any of its isomers or derivatives in any form.
This is further strongly manifest in Section 11 of R.A. No. 9165, wherein it is specifically provided that the possession of dangerous drugs, such as
methamphetamine hydrochloride or shabu, is punishable with life imprisonment to death and a fine ranging from Five Hundred Thousand Pesos
(P500,000.00) to Ten Million Pesos (P10,000,000.00), if the quantity thereof is 50 grams or more. It would be absurd, to say the least, that Section 11 of
R.A. No. 9165 would qualify methamphetamine hydrochloride as a dangerous drug, while Section 5 of the same law, penalizing the sale thereof, would
treat it as a controlled precursor.
Had respondent Judge been more circumspect in going over the pertinent provisions of R.A. No. 9165, she would certainly arrive at the same
conclusion. It does not even take an interpretation of the law but a plain and simple reading thereof. Furthermore, had respondent judge kept herself
abreast of jurisprudence and decisions of the Court,[24] she would have been apprised that in all the hundreds and hundreds of cases [25] decided by
the Court, methamphetamine hydrochloride or shabu had always been considered as a dangerous drug.
Given that methamphetamine hydrochloride is a dangerous drug, the applicable provision in Criminal Case Nos. 03-065, 03-082, and 03-288 subject of
Admin. Matter No. RTJ-04-1820, is Section 5, paragraph 1 of R.A. No. 9165, which reads:
SECTION 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors
and Essential Chemicals. The penalty of life imprisonment to death and fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million
pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to
another, distribute, dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and
purity involved, or shall act as a broker in any of such transactions.
Regardless of quantity, the sale, trade, administration, dispensation, delivery, distribution and transportation of shabu is punishable by life imprisonment
to death. Being a capital offense, it is incumbent upon respondent Judge to hold a hearing on the petitions/motions for bail filed by the accused therein
to determine whether evidence of guilt is strong. To grant an application for bail and fix the amount thereof without a hearing duly called for the purpose
of determining whether the evidence of guilt is strong constitutes gross ignorance or incompetence whose grossness cannot be excused by a claim of
good faith or excusable negligence.[26]
In Gallardo vs. Tabamo,[27] the Court rejected the defense that the judges failure to apply the clear provisions of the law is merely an error of judgment,
and the judge was held administratively liable for gross ignorance of the law where the applicable legal provisions are crystal clear and need no
interpretation.
Moreover, such gross ignorance of law is in violation of Rule 3.01 of the Code of Judicial Conduct, which states that a judge shall be faithful to the law
and maintain professional competence.
The indispensable nature of a bail hearing in petitions for bail has always been ardently and indefatigably stressed by the Court. The Code of Judicial
Conduct enjoins judges to be faithful to the law and maintain professional competence. A judge is called upon to exhibit more than just a cursory
acquaintance with statutes and procedural rules; it is imperative that he be conversant with basic legal principles and be aware of well-settled
authoritative doctrines. He should strive for excellence exceeded only by his passion for truth, to the end that he be the personification of justice and the
Rule of Law.[28]
Although judges cannot be held to account or answer criminally, civilly or administratively for every erroneous judgment or decision rendered by him in
good faith, it is imperative that they should have basic knowledge of the law.[29]
Even if a judge acted in good faith but his ignorance is so gross, he should be held administratively liable.[30]
Under Rule 140 of the Rules of Court, as amended by A.M. No. 01-8-10-SC, which took effect on October 1, 2001, gross ignorance of the law is
classified as a serious charge and is now punishable with severe sanctions, to wit:
Sec. 11. Sanctions. A. If the respondent is guilty of a serious charge, any of the following sanctions may be imposed:
1. Dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment
to any public office, including government-owned or controlled corporations. Provided, however, that the forfeiture of benefits shall in no case include
accrued leave credits.
2. Suspension from office without salary and other benefits for more than three (3) but not exceeding six (6) months; or
Page 55 of 81

3. A fine of more than P20,000.00 but not exceeding P40,000.00.

In this case, the Investigating Justice recommended that respondent Judge be dismissed from the service. The Court finds such penalty to be too
harsh. In similar cases,[31] the Court imposed a fine on the respondents therein for gross ignorance of the law for having granted bail to the accused
without notice and hearing. However, the Court takes judicial notice that this is not the first time that respondent Judge was administratively fined. In
A.M. No. RTJ-02-1686,[32] a fine of P5,000.00 and a reprimand was imposed on respondent Judge for dereliction of duty for her failure to act on Civil
Case No. 9-138 for three years. In A.M. No. RTJ-04-1846,[33] respondent Judge was held administratively liable for gross ignorance of the law, grave
misconduct and oppression for the delay of almost nine (9) months in the transmittal of the records of Civil Case No. 01-268 to the Court of Appeals,
and was fined P20,000.00. Thus, the Court is imposing a penalty more severe than a fine. Suspension from office for six (6) months in Admin. Matter
No. RTJ-04-1820, excluding Criminal Case No. 03-265 (People of the Philippines vs. Aiza Chona Omadan), is sufficient and reasonable.
The Office of the Court Administrator (OCA) also notes, in its Memorandum dated November 22, 2002, that respondent Judge caused the release from
the National Bilibid Prison of several persons convicted of violation of the drugs law by granting the petitions for habeas corpus filed in her court, i.e.,
Spl. Proc. Nos. 02-002, 02-008, 02-10, 98-023 and 98-048. The OCA further stated that in Spl. Proc. Nos. 98-023 and 98-048, respondent Judge
granted the petitions without determining the veracity of the allegations therein; without any material evidence in support of her findings and conclusion;
and that at the time the petitions were granted, an appeal from the convictions in these two cases is pending before the Court (G. R. Nos. 131622-23).
Thus, the OCA recommends that an investigation, report, and recommendation on these two cases be made, and that it be authorized to conduct an
audit on all the petitions for habeas corpus in all the courts of the Regional Trial Court of Muntinlupa City from 1998 to the present.[34]
WHEREFORE, judgment is hereby rendered:
(1) In Admin. Matter No. RTJ-03-1817, DISMISSING the complaint against respondent Judge; and,
(2) In Admin. Matter No. RTJ-04-1820, finding respondent Judge Norma C. Perello, Presiding Judge of the Regional Trial Court (Branch 276) of
Muntinlupa City GUILTY of gross ignorance of law, and she is hereby SUSPENDED for Six (6) Months, with warning that a repetition of similar acts
shall be dealt with more severely.
AS TO OTHER MATTERS:
(a) The Court ORDERS the Office of the Court Administrator to initiate the appropriate complaint for grave misconduct and/or gross ignorance of the
law against respondent Judge, insofar as Spl. Proc. Nos. 02-002, 02-008, 02-10, 98-023 and 98-048 are concerned; and to conduct preliminary
investigation and submit report thereon within ninety (90) days from notice hereof.
(b) The Office of the Court Administrator is AUTHORIZED to conduct an audit and submit a report within ninety (90) days from notice hereof, on all the
petitions for habeas corpus in all the courts of the Regional Trial Court of Muntinlupa City from 1998 to present.
SO ORDERED.

THIRD DIVISION
JOSE ANTONIO LEVISTE,
Petitioner,

G.R. No. 189122

Page 56 of 81

-versusTHE COURT OF APPEALS

and PEOPLE OF THE
PHILIPPINES,
Respondents.

Promulgated:

March 17, 2010

Bail, the security given by an accused who is in the custody of the law for his release to guarantee his appearance before any court as may be
required,202[1] is the answer of the criminal justice system to a vexing question: what is to be done with the accused, whose guilt has not yet been
proven, in the dubious interval, often years long, between arrest and final adjudication? 203[2] Bail acts as a reconciling mechanism to accommodate both
the accuseds interest in pretrial liberty and societys interest in assuring the accuseds presence at trial.204[3]
Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, the accused who has been
sentenced to prison must typically begin serving time immediately unless, on application, he is admitted to bail. 205[4] An accused not released on bail is
incarcerated before an appellate court confirms that his conviction is legal and proper. An erroneously convicted accused who is denied bail loses his
liberty to pay a debt to society he has never owed. 206[5] Even if the conviction is subsequently affirmed, however, the accuseds interest in bail pending
appeal includes freedom pending judicial review, opportunity to efficiently prepare his case and avoidance of potential hardships of prison. 207[6] On the
other hand, society has a compelling interest in protecting itself by swiftly incarcerating an individual who is found guilty beyond reasonable doubt of a
crime serious enough to warrant prison time. 208[7] Other recognized societal interests in the denial of bail pending appeal include the prevention of the
accuseds flight from court custody, the protection of the community from potential danger and the avoidance of delay in punishment. 209[8] Under what
circumstances an accused may obtain bail pending appeal, then, is a delicate balance between the interests of society and those of the accused. 210[9]
Our rules authorize the proper courts to exercise discretion in the grant of bail pending appeal to those convicted by the Regional Trial Court of an
offense not punishable by death, reclusion perpetua or life imprisonment. In the exercise of that discretion, the proper courts are to be guided by the
fundamental principle that the allowance of bail pending appeal should be exercised not with laxity but with grave caution and only for strong
reasons, considering that the accused has been in fact convicted by the trial court. 211[10]
THE FACTS
Charged with the murder of Rafael de las Alas, petitioner Jose Antonio Leviste was convicted by the Regional Trial Court of Makati City for the lesser
crime of homicide and sentenced to suffer an indeterminate penalty of six years and one day of prision mayor as minimum to 12 years and one day of
reclusion temporal as maximum.212[11]
He appealed his conviction to the Court of Appeals. 213[12] Pending appeal, he filed an urgent application for admission to bail pending appeal, citing his
advanced age and health condition, and claiming the absence of any risk or possibility of flight on his part.
The Court of Appeals denied petitioners application for bail. 214[13] It invoked the bedrock principle in the matter of bail pending appeal, that the
discretion to extend bail during the course of appeal should be exercised with grave caution and only for strong reasons. Citing well-established
jurisprudence, it ruled that bail is not a sick pass for an ailing or aged detainee or a prisoner needing medical care outside the prison facility. It found

202
203
204
205
206
207
208
209
210
211
212
213
214
Page 57 of 81

that petitioner failed to show that he suffers from ailment of such gravity that his continued confinement during trial will permanently impair his health or
put his life in danger. x x x Notably, the physical condition of [petitioner] does not prevent him from seeking medical attention while confined in prison,
though he clearly preferred to be attended by his personal physician.215[14]
For purposes of determining whether petitioners application for bail could be allowed pending appeal, the Court of Appeals also considered the fact of
petitioners conviction. It made a preliminary evaluation of petitioners case and made a prima facie determination that there was no reason substantial
enough to overturn the evidence of petitioners guilt.
Petitioners motion for reconsideration was denied.216[15]
Petitioner now questions as grave abuse of discretion the denial of his application for bail, considering that none of the conditions justifying denial of bail
under the third paragraph of Section 5, Rule 114 of the Rules of Court was present. Petitioners theory is that, where the penalty imposed by the trial
court is more than six years but not more than 20 years and the circumstances mentioned in the third paragraph of Section 5 are absent, bail must be
granted to an appellant pending appeal.

THE ISSUE
The question presented to the Court is this: in an application for bail pending appeal by an appellant sentenced by the trial court to a penalty of
imprisonment for more than six years, does the discretionary nature of the grant of bail pending appeal mean that bail should automatically be granted
absent any of the circumstances mentioned in the third paragraph of Section 5, Rule 114 of the Rules of Court?
Section 5, Rule 114 of the Rules of Court provides:
Sec. 5. Bail, when discretionary. Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life
imprisonment, admission to bail is discretionary. The application for bail may be filed and acted upon by the trial court despite the filing of a notice
of appeal, provided it has not transmitted the original record to the appellate court. However, if the decision of the trial court convicting the accused
changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court.
Should the court grant the application, the accused may be allowed to continue on provisional liberty during the pendency of the appeal under the same
bail subject to the consent of the bondsman.
If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail shall be
cancelled upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances:
(a)
That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of
reiteration;
(b)
That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without a valid
justification;
(c)

That he committed the offense while under probation, parole, or conditional pardon;

(d)

That the circumstances of his case indicate the probability of flight if released on bail; or

(e)

That there is undue risk that he may commit another crime during the pendency of the appeal.

The appellate court may, motu proprio or on motion of any party, review the resolution of the Regional Trial Court after notice to the adverse party in
either case. (emphasis supplied)
Petitioner claims that, in the absence of any of the circumstances mentioned in the third paragraph of Section 5, Rule 114 of the Rules of
Court, an application for bail by an appellant sentenced by the Regional Trial Court to a penalty of more than six years imprisonment should
automatically be granted.
Petitioners stance is contrary to fundamental considerations of procedural and substantive rules.
BASIC PROCEDURAL CONCERNS
FORBID GRANT OF PETITION
Petitioner filed this special civil action for certiorari under Rule 65 of the Rules of Court to assail the denial by the Court of Appeals of his
urgent application for admission to bail pending appeal. While the said remedy may be resorted to challenge an interlocutory order, such remedy is
proper only where the interlocutory order was rendered without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess
of jurisdiction.217[16]
Other than the sweeping averment that [t]he Court of Appeals committed grave abuse of discretion in denying petitioners application for bail pending
appeal despite the fact that none of the conditions to justify the denial thereof under Rule 114, Section 5 [is] present, much less proven by the
prosecution,218[17] however, petitioner actually failed to establish that the Court of Appeals indeed acted with grave abuse of discretion. He simply relies

215
216
217
218
Page 58 of 81

on his claim that the Court of Appeals should have granted bail in view of the absence of any of the circumstances enumerated in the third paragraph of
Section 5, Rule 114 of the Rules of Court. Furthermore, petitioner asserts that the Court of Appeals committed a grave error and prejudged the appeal
by denying his application for bail on the ground that the evidence that he committed a capital offense was strong.
We disagree.
It cannot be said that the Court of Appeals issued the assailed resolution without or in excess of its jurisdiction. One, pending appeal of a
conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is expressly
declared to be discretionary. Two, the discretion to allow or disallow bail pending appeal in a case such as this where the decision of the trial court
convicting the accused changed the nature of the offense from non-bailable to bailable is exclusively lodged by the rules with the appellate court. Thus,
the Court of Appeals had jurisdiction to hear and resolve petitioners urgent application for admission to bail pending appeal.
Neither can it be correctly claimed that the Court of Appeals committed grave abuse of discretion when it denied petitioners application for
bail pending appeal. Grave abuse of discretion is not simply an error in judgment but it is such a capricious and whimsical exercise of judgment
which is tantamount to lack of jurisdiction. 219[18] Ordinary abuse of discretion is insufficient. The abuse of discretion must be grave, that is, the
power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility. 220[19] It must be so patent and gross as to amount to
evasion of positive duty or to a virtual refusal to perform the duty enjoined by or to act at all in contemplation of the law. In other words, for a petition for
certiorari to prosper, there must be a clear showing of caprice and arbitrariness in the exercise of discretion. 221[20]
Petitioner never alleged that, in denying his application for bail pending appeal, the Court of Appeals exercised its judgment capriciously and
whimsically. No capriciousness or arbitrariness in the exercise of discretion was ever imputed to the appellate court. Nor could any such implication or
imputation be inferred. As observed earlier, the Court of Appeals exercised grave caution in the exercise of its discretion. The denial of petitioners
application for bail pending appeal was not unreasonable but was the result of a thorough assessment of petitioners claim of ill health. By making a
preliminary appraisal of the merits of the case for the purpose of granting bail, the court also determined whether the appeal was frivolous or not, or
whether it raised a substantial question. The appellate court did not exercise its discretion in a careless manner but followed doctrinal rulings of this
Court.
At best, petitioner only points out the Court of Appeals erroneous application and interpretation of Section 5, Rule 114 of the Rules of Court. However,
the extraordinary writ of certiorari will not be issued to cure errors in proceedings or erroneous conclusions of law or fact .222[21] In this
connection, Lee v. People223[22] is apropos:
Certiorari may not be availed of where it is not shown that the respondent court lacked or exceeded its jurisdiction over the case, even if its
findings are not correct. Its questioned acts would at most constitute errors of law and not abuse of discretion correctible by certiorari.
In other words, certiorari will issue only to correct errors of jurisdiction and not to correct errors of procedure or mistakes in the courts findings and
conclusions. An interlocutory order may be assailed by certiorari or prohibition only when it is shown that the court acted without or in excess of
jurisdiction or with grave abuse of discretion. However, this Court generally frowns upon this remedial measure as regards interlocutory orders. To
tolerate the practice of allowing interlocutory orders to be the subject of review by certiorari will not only delay the administration of justice but will also
unduly burden the courts.224[23] (emphasis supplied)
WORDING OF THIRD PARAGRAPH OF SECTION 5,
RULE 114 CONTRADICTS PETITIONERS
INTERPRETATION
The third paragraph of Section 5, Rule 114 applies to two scenarios where the penalty imposed on the appellant applying for bail is imprisonment
exceeding six years. The first scenario deals with the circumstances enumerated in the said paragraph (namely, recidivism, quasi-recidivism, habitual
delinquency or commission of the crime aggravated by the circumstance of reiteration; previous escape from legal confinement, evasion of sentence or
violation of the conditions of his bail without a valid justification; commission of the offense while under probation, parole or conditional pardon;
circumstances indicating the probability of flight if released on bail; undue risk of committing another crime during the pendency of the appeal; or other
similar circumstances) not present. The second scenario contemplates the existence of at least one of the said circumstances.
The implications of this distinction are discussed with erudition and clarity in the commentary of retired Supreme Court Justice Florenz D.
Regalado, an authority in remedial law:
Under the present revised Rule 114, the availability of bail to an accused may be summarized in the following rules:
e.
After conviction by the Regional Trial Court wherein a penalty of imprisonment exceeding 6 years but not more than 20 years is imposed, and
not one of the circumstances stated in Sec. 5 or any other similar circumstance is present and proved, bail is a matter of discretion (Sec. 5);

219
220
221
222
223
224
Page 59 of 81

f.
After conviction by the Regional Trial Court imposing a penalty of imprisonment exceeding 6 years but not more than 20 years, and any of
the circumstances stated in Sec. 5 or any other similar circumstance is present and proved, no bail shall be granted by said court (Sec. 5); x x x225[24]
(emphasis supplied)
Retired Court of Appeals Justice Oscar M. Herrera, another authority in remedial law, is of the same thinking:
Bail is either a matter of right or of discretion. It is a matter of right when the offense charged is not punishable by death, reclusion perpetua or life
imprisonment. On the other hand, upon conviction by the Regional Trial Court of an offense not punishable death, reclusion perpetua or life
imprisonment, bail becomes a matter of discretion.
Similarly, if the court imposed a penalty of imprisonment exceeding six (6) years then bail is a matter of discretion, except when any of the
enumerated circumstances under paragraph 3 of Section 5, Rule 114 is present then bail shall be denied.226[25] (emphasis supplied)
In the first situation, bail is a matter of sound judicial discretion. This means that, if none of the circumstances mentioned in the third paragraph of
Section 5, Rule 114 is present, the appellate court has the discretion to grant or deny bail. An application for bail pending appeal may be denied even if
the bail-negating227[26] circumstances in the third paragraph of Section 5, Rule 114 are absent. In other words, the appellate courts denial of bail
pending appeal where none of the said circumstances exists does not, by and of itself, constitute abuse of discretion.
On the other hand, in the second situation, the appellate court exercises a more stringent discretion, that is, to carefully ascertain whether any of the
enumerated circumstances in fact exists. If it so determines, it has no other option except to deny or revoke bail pending appeal. Conversely, if the
appellate court grants bail pending appeal, grave abuse of discretion will thereby be committed.
Given these two distinct scenarios, therefore, any application for bail pending appeal should be viewed from the perspective of two stages:
(1) the determination of discretion stage, where the appellate court must determine whether any of the circumstances in the third paragraph of Section
5, Rule 114 is present; this will establish whether or not the appellate court will exercise sound discretion or stringent discretion in resolving the
application for bail pending appeal and (2) the exercise of discretion stage where, assuming the appellants case falls within the first scenario allowing
the exercise of sound discretion, the appellate court may consider all relevant circumstances, other than those mentioned in the third paragraph of
Section 5, Rule 114, including the demands of equity and justice;228[27] on the basis thereof, it may either allow or disallow bail.
On the other hand, if the appellants case falls within the second scenario, the appellate courts stringent discretion requires that the exercise thereof be
primarily focused on the determination of the proof of the presence of any of the circumstances that are prejudicial to the allowance of bail. This is so
because the existence of any of those circumstances is by itself sufficient to deny or revoke bail. Nonetheless, a finding that none of the said
circumstances is present will not automatically result in the grant of bail. Such finding will simply authorize the court to use the less
stringent sound discretion approach.
Petitioner disregards the fine yet substantial distinction between the two different situations that are governed by the third paragraph of Section 5, Rule
114. Instead, petitioner insists on a simplistic treatment that unduly dilutes the import of the said provision and trivializes the established policy
governing the grant of bail pending appeal.
In particular, a careful reading of petitioners arguments reveals that it interprets the third paragraph of Section 5, Rule 114 to cover all
situations where the penalty imposed by the trial court on the appellant is imprisonment exceeding six years. For petitioner, in such a situation, the
grant of bail pending appeal is always subject to limited discretion, that is, one restricted to the determination of whether any of the five bailnegating circumstances exists. The implication of this position is that, if any such circumstance is present, then bail will be denied. Otherwise, bail will
be granted pending appeal.
Petitioners theory therefore reduces the appellate court into a mere fact-finding body whose authority is limited to determining whether any of the five
circumstances mentioned in the third paragraph of Section 5, Rule 114 exists. This unduly constricts its discretion into merely filling out the checklist of
circumstances in the third paragraph of Section 5, Rule 114 in all instances where the penalty imposed by the Regional Trial Court on the appellant is
imprisonment exceeding six years. In short, petitioners interpretation severely curbs the discretion of the appellate court by requiring it to determine a
singular factual issue whether any of the five bail-negating circumstances is present.
However, judicial discretion has been defined as choice. 229[28] Choice occurs where, between two alternatives or among a possibly infinite number (of
options), there is more than one possible outcome, with the selection of the outcome left to the decision maker. 230[29] On the other hand, the
establishment of a clearly defined rule of action is the end of discretion. 231[30] Thus, by severely clipping the appellate courts discretion and relegating
that tribunal to a mere fact-finding body in applications for bail pending appeal in all instances where the penalty imposed by the trial court on the
appellant is imprisonment exceeding six years, petitioners theory effectively renders nugatory the provision that upon conviction by the Regional
Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary.

225
226
227
228
229
230
231
Page 60 of 81

The judicial discretion granted to the proper court (the Court of Appeals in this case) to rule on applications for bail pending appeal must necessarily
involve the exercise of judgment on the part of the court. The court must be allowed reasonable latitude to express its own view of the case, its
appreciation of the facts and its understanding of the applicable law on the matter. 232[31] In view of the grave caution required of it, the court should
consider whether or not, under all circumstances, the accused will be present to abide by his punishment if his conviction is affirmed. 233[32] It should
also give due regard to any other pertinent matters beyond the record of the particular case, such as the record, character and reputation of the
applicant,234[33] among other things. More importantly, the discretion to determine allowance or disallowance of bail pending appeal necessarily
includes, at the very least, an initial determination that the appeal is not frivolous but raises a substantial question of law or fact which must be
determined by the appellate court.235[34] In other words, a threshold requirement for the grant of bail is a showing that the appeal is not pro forma and
merely intended for delay but presents a fairly debatable issue. 236[35] This must be so; otherwise, the appellate courts will be deluged with frivolous and
time-wasting appeals made for the purpose of taking advantage of a lenient attitude on bail pending appeal. Even more significantly, this comports with
the very strong presumption on appeal that the lower courts exercise of discretionary power was sound, 237[36] specially since the rules on criminal
procedure require that no judgment shall be reversed or modified by the Court of Appeals except for substantial error.238[37]
Moreover, to limit the bail-negating circumstances to the five situations mentioned in the third paragraph of Section 5, Rule 114 is wrong. By restricting
the bail-negating circumstances to those expressly mentioned, petitioner applies the expressio unius est exclusio alterius239[38] rule in statutory
construction. However, the very language of the third paragraph of Section 5, Rule 114 contradicts the idea that the enumeration of the five situations
therein was meant to be exclusive. The provision categorically refers to the following or other similar circumstances. Hence, under the rules, similarly
relevant situations other than those listed in the third paragraph of Section 5, Rule 114 may be considered in the allowance, denial or revocation of bail
pending appeal.
Finally, laws and rules should not be interpreted in such a way that leads to unreasonable or senseless consequences. An absurd situation will result
from adopting petitioners interpretation that, where the penalty imposed by the trial court is imprisonment exceeding six years, bail ought to be granted
if none of the listed bail-negating circumstances exists. Allowance of bail pending appeal in cases where the penalty imposed is more than six years of
imprisonment will be more lenient than in cases where the penalty imposed does not exceed six years. While denial or revocation of bail in cases where
the penalty imposed is more than six years imprisonment must be made only if any of the five bail-negating conditions is present, bail pending appeal in
cases where the penalty imposed does not exceed six years imprisonment may be denied even without those conditions.
Is it reasonable and in conformity with the dictates of justice that bail pending appeal be more accessible to those convicted of serious offenses,
compared to those convicted of less serious crimes?
PETITIONERS THEORY DEVIATES FROM HISTORY
AND EVOLUTION OF RULE ON BAIL PENDING APPEAL
Petitioners interpretation deviates from, even radically alters, the history and evolution of the provisions on bail pending appeal.
The relevant original provisions on bail were provided under Sections 3 to 6, Rule 110 of the 1940 Rules of Criminal Procedure:
Sec. 3. Offenses less than capital before conviction by the Court of First Instance. After judgment by a municipal judge and before conviction by the
Court of First Instance, the defendant shall be admitted to bail as of right.
Sec. 4. Non-capital offenses after conviction by the Court of First Instance. After conviction by the Court of First Instance, defendant may, upon
application, be bailed at the discretion of the court.
Sec. 5. Capital offense defined. A capital offense, as the term is used in this rule, is an offense which, under the law existing at the time of its
commission, and at the time of the application to be admitted to bail, may be punished by death.
Sec. 6. Capital offense not bailable. No person in custody for the commission of a capital offense shall be admitted to bail if the evidence of his guilt is
strong.
The aforementioned provisions were reproduced as Sections 3 to 6, Rule 114 of the 1964 Rules of Criminal Procedure and then of the 1985 Rules of
Criminal Procedure. They were modified in 1988 to read as follows:
Sec. 3. Bail, a matter of right; exception. All persons in custody, shall before final conviction be entitled to bail as a matter of right, except those
charged with a capital offense or an offense which, under the law at the time of its commission and at the time of the application for bail, is punishable
by reclusion perpetua, when evidence of guilt is strong.

232
233
234
235
236
237
238
239
Page 61 of 81

Sec. 4. Capital offense, defined. A capital offense, as the term is used in this Rules, is an offense which, under the law existing at the time of its
commission, and at the time of the application to be admitted to bail, may be punished by death. (emphasis supplied)
The significance of the above changes was clarified in Administrative Circular No. 2-92 dated January 20, 1992 as follows:
The basic governing principle on the right of the accused to bail is laid down in Section 3 of Rule 114 of the 1985 Rules on Criminal Procedure, as
amended, which provides:
Sec. 3. Bail, a matter of right; exception. All persons in custody, shall before final conviction, be entitled to bail as a matter of right, except those
charged with a capital offense or an offense which, under the law at the time of its commission and at the time of the application for bail, is punishable
by reclusion perpetua, when evidence of guilt is strong.
Pursuant to the aforecited provision, an accused who is charged with a capital offense or an offense punishable by reclusion perpetua, shall no longer
be entitled to bail as a matter of right even if he appeals the case to this Court since his conviction clearly imports that the evidence of his guilt of the
offense charged is strong.
Hence, for the guidelines of the bench and bar with respect to future as well as pending cases before the trial courts, this Court en banc lays down the
following policies concerning the effectivity of the bail of the accused, to wit:
1)
When an accused is charged with an offense which under the law existing at the time of its commission and at the time of the application for
bail is punishable by a penalty lower than reclusion perpetua and is out on bail, and after trial is convicted by the trial court of the offense charged or of
a lesser offense than that charged in the complaint or information, he may be allowed to remain free on his original bail pending the resolution of his
appeal, unless the proper court directs otherwise pursuant to Rule 114, Sec. 2 (a) of the Rules of Court, as amended;
2)
When an accused is charged with a capital offense or an offense which under the law at the time of its commission and at the time
of the application for bail is punishable by reclusion perpetua and is out on bail, and after trial is convicted by the trial court of a lesser
offense than that charged in the complaint or information, the same rule set forth in the preceding paragraph shall be applied;
3)
When an accused is charged with a capital offense or an offense which under the law at the time of its commission and at the time of the
application for bail is punishable by reclusion perpetua and is out on bail and after trial is convicted by the trial court of the offense charged, his bond
shall be cancelled and the accused shall be placed in confinement pending resolution of his appeal.
As to criminal cases covered under the third rule abovecited, which are now pending appeal before his Court where the accused is still on provisional
liberty, the following rules are laid down:
1)
This Court shall order the bondsman to surrender the accused within ten (10) days from notice to the court of origin. The bondsman
thereupon, shall inform this Court of the fact of surrender, after which, the cancellation of the bond shall be ordered by this Court;
2)
The RTC shall order the transmittal of the accused to the National Bureau of Prisons thru the Philippine National Police as the accused shall
remain under confinement pending resolution of his appeal;
3)
If the accused-appellant is not surrendered within the aforesaid period of ten (10) days, his bond shall be forfeited and an order of arrest shall
be issued by this Court. The appeal taken by the accused shall also be dismissed under Section 8, Rule 124 of the Revised Rules of Court as he shall
be deemed to have jumped his bail. (emphasis supplied)
Amendments were further introduced in Administrative Circular No. 12-94 dated August 16, 1994 which brought about important changes in the said
rules as follows:
SECTION 4.
Bail, a matter of right. All persons in custody shall: (a) before or after conviction by the Metropolitan Trial Court, Municipal Trial
Court, Municipal Trial Court in Cities and Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial Court of an offense not punishable
by death, reclusion perpetua or life imprisonment, be admitted to bail as a matter of right, with sufficient sureties, or be released on recognizance as
prescribed by law of this Rule. (3a)
SECTION 5.
Bail, when discretionary. Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion
perpetua or life imprisonment, the court, on application, may admit the accused to bail.
The court, in its discretion, may allow the accused to continue on provisional liberty under the same bail bond during the period of appeal subject to the
consent of the bondsman.
If the court imposed a penalty of imprisonment exceeding six (6) years but not more than twenty (20) years, the accused shall be denied bail,
or his bail previously granted shall be cancelled, upon a showing by the prosecution, with notice to the accused, of the following or other
similar circumstances:
(a)
That the accused is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the
circumstance of reiteration;
(b)
That the accused is found to have previously escaped from legal confinement, evaded sentence or has violated the conditions of
his bail without valid justification;
(c)

That the accused committed the offense while on probation, parole, under conditional pardon;

(d)

That the circumstances of the accused or his case indicate the probability of flight if released on bail; or

(e)

That there is undue risk that during the pendency of the appeal, the accused may commit another crime.

The appellate court may review the resolution of the Regional Trial Court, on motion and with notice to the adverse party. (n)
SECTION 6.
Capital offense, defined. A capital offense, as the term is used in these Rules, is an offense which, under the law existing at the
time of its commission and at the time of the application to be admitted to bail, maybe punished with death. (4)
Page 62 of 81

SECTION 7.
Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. No person charged with a capital
offense, or an offense punishable by reclusion perpetua or life imprisonment, when evidence of guilt is strong, shall be admitted to bail regardless of the
stage of the criminal prosecution. (emphasis supplied)
The above amendments of Administrative Circular No. 12-94 to Rule 114 were thereafter amended by A.M. No. 00-5-03-SC to read as they do now.
The development over time of these rules reveals an orientation towards a more restrictive approach to bail pending appeal. It indicates a
faithful adherence to the bedrock principle, that is, bail pending appeal should be allowed not with leniency but with grave caution and only for strong
reasons.
The earliest rules on the matter made all grants of bail after conviction for a non-capital offense by the Court of First Instance (predecessor of the
Regional Trial Court) discretionary. The 1988 amendments made applications for bail pending appeal favorable to the appellant-applicant. Bail before
final conviction in trial courts for non-capital offenses or offenses not punishable by reclusion perpetua was a matter of right, meaning, admission to bail
was a matter of right at any stage of the action where the charge was not for a capital offense or was not punished by reclusion perpetua.240[39]
The amendments introduced by Administrative Circular No. 12-94 made bail pending appeal (of a conviction by the Regional Trial Court of an offense
not punishable by death, reclusion perpetua or life imprisonment) discretionary. Thus, Administrative Circular No. 12-94 laid down more stringent rules
on the matter of post-conviction grant of bail.
A.M. No. 00-5-03-SC modified Administrative Circular No. 12-94 by clearly identifying which court has authority to act on applications for bail pending
appeal under certain conditions and in particular situations. More importantly, it reiterated the tough on bail pending appeal configuration of
Administrative Circular No. 12-94. In particular, it amended Section 3 of the 1988 Rules on Criminal Procedure which entitled the accused to bail as a
matter of right before final conviction.241[40] Under the present rule, bail is a matter of discretion upon conviction by the Regional Trial Court of an
offense not punishable by death, reclusion perpetua or life imprisonment. Indeed, pursuant to the tough on bail pending appeal policy, the presence of
bail-negating conditions mandates the denial or revocation of bail pending appeal such that those circumstances are deemed to be as grave as
conviction by the trial court for an offense punishable by death, reclusion perpetua or life imprisonment where bail is prohibited.
Now, what is more in consonance with a stringent standards approach to bail pending appeal? What is more in conformity with an ex abundante
cautelam view of bail pending appeal? Is it a rule which favors the automatic grant of bail in the absence of any of the circumstances under the third
paragraph of Section 5, Rule 114? Or is it a rule that authorizes the denial of bail after due consideration of all relevant circumstances, even if none of
the circumstances under the third paragraph of Section 5, Rule 114 is present?
The present inclination of the rules on criminal procedure to frown on bail pending appeal parallels the approach adopted in the United States where
our original constitutional and procedural provisions on bail emanated. 242[41] While this is of course not to be followed blindly, it nonetheless shows that
our treatment of bail pending appeal is no different from that in other democratic societies.
In our jurisdiction, the trend towards a strict attitude towards the allowance of bail pending appeal is anchored on the principle that judicial discretion
particularly with respect to extending bail should be exercised not with laxity but with caution and only for strong reasons. 243[42] In fact, it has even been
pointed out that grave caution that must attend the exercise of judicial discretion in granting bail to a convicted accused is best illustrated and
exemplified in Administrative Circular No. 12-94 amending Rule 114, Section 5.244[43]
Furthermore, this Court has been guided by the following:
The importance attached to conviction is due to the underlying principle that bail should be granted only where it is uncertain whether the accused is
guilty or innocent, and therefore, where that uncertainty is removed by conviction it would, generally speaking, be absurd to admit to bail. After a
person has been tried and convicted the presumption of innocence which may be relied upon in prior applications is rebutted, and the
burden is upon the accused to show error in the conviction. From another point of view it may be properly argued that the probability of ultimate
punishment is so enhanced by the conviction that the accused is much more likely to attempt to escape if liberated on bail than before conviction. 245[44]
(emphasis supplied)
As a matter of fact, endorsing the reasoning quoted above and relying thereon, the Court declared in Yap v. Court of Appeals246[45] (promulgated in
2001 when the present rules were already effective), that denial of bail pending appeal is a matter of wise discretion.
A FINAL WORD
Section 13, Article II of the Constitution provides:
SEC. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction,
be bailable by sufficient sureties, or be released on recognizance as may be provided by law. x x x (emphasis supplied)

240
241
242
243
244
245
246
Page 63 of 81

After conviction by the trial court, the presumption of innocence terminates and, accordingly, the constitutional right to bail ends. 247[46] From then on,
the grant of bail is subject to judicial discretion. At the risk of being repetitious, such discretion must be exercised with grave caution and only for strong
reasons. Considering that the accused was in fact convicted by the trial court, allowance of bail pending appeal should be guided by a stringentstandards approach. This judicial disposition finds strong support in the history and evolution of the rules on bail and the language of Section 5, Rule
114 of the Rules of Court. It is likewise consistent with the trial courts initial determination that the accused should be in prison. Furthermore, letting the
accused out on bail despite his conviction may destroy the deterrent effect of our criminal laws. This is especially germane to bail pending appeal
because long delays often separate sentencing in the trial court and appellate review. In addition, at the post-conviction stage, the accused faces a
certain prison sentence and thus may be more likely to flee regardless of bail bonds or other release conditions. Finally, permitting bail too freely in spite
of conviction invites frivolous and time-wasting appeals which will make a mockery of our criminal justice system and court processes.
WHEREFORE, the petition is hereby DISMISSED.
The Court of Appeals is hereby directed to resolve and decide, on the merits, the appeal of petitioner Jose Antonio Leviste docketed as CA-G.R. CR
No. 32159, with dispatch.
Costs against petitioner.
SO ORDERED.
SECOND DIVISION
A.M. No. RTJ-03-1751
June 10, 2003
COMMISSIONER ANDREA D. DOMINGO, Complainant,
vs.
EXECUTIVE JUDGE ERNESTO P. PAGAYATAN, RTC, Branch 46, San Jose, Occidental Mindoro, Respondent.
In a letter-complaint dated December 7, 2001 filed with the Office of the Court Administrator, Commissioner Andrea D. Domingo of the Bureau of
Immigration (BOI) charged Executive Judge Ernesto P. Pagayatan of the Regional Trial Court of San Jose, Occidental Mindoro (Branch 46) with Gross
Ignorance of the Law relative to Criminal Case No. R-5075 for Estafa, entitled People of the Philippines vs. Ernesto M. Peaflorida.
Complainant alleged: On September 14, 2001, the Bureau of Immigration (BOI) Board of Commissioners (BOC) issued Summary Deportation Order
(SDO) No. ADD-2001-057 against Ernesto M. Peaflorida, a U.S. citizen, after finding that he is an overstaying and undocumented alien, in violation of
Section 37(a)(7) of Commonwealth Act No. 613, otherwise known as the Philippine Immigration Act of 1940. Peaflorida is also a fugitive from justice
since he stands indicted in the United States for health care fraud which resulted in more than $1,376,000.00 losses to the U.S. Federal Government.
No appeal was filed with the Office of the President. The SDO became final and executory on October 15, 2001. On the same date, respondent issued
a Notice of Arraignment requiring the production of Peaflorida on November 19 and 20, 2001. On the scheduled hearing of November 19, 2001,
respondent denied the P40,000.00 bail recommended by the Provincial Prosecutor for the provisional release of the accused on the ground that the
crime Peaflorida was charged with involved large scale estafa, a non-bailable offense. Respondent ordered the commitment of Peaflorida to the
Provincial Jail in Magbay, San Jose, Occidental Mindoro. However, later on that same day, the BOI received information that respondent had allowed
the release from detention of Peaflorida, who is an alien federal fugitive, without the interdepartmental courtesy of affording prior notice to the BOI of
such action. She is appalled not only by the respondents employment of legal subterfuges in ordering the release of Peaflorida whose Summary
Deportation Order had already become final and executory, but also by the respondents bad faith in deceiving them into surrendering the custody of an
undesirable alien federal fugitive to the Provincial Jail at Magbay, San Jose, Occidental Mindoro. 1
In his Comment, dated March 22, 2002, respondent explained: On November 20, 2001, Peaflorida filed an urgent motion to fix bail. When the
prosecution and the defense jointly manifested that it would be fair and just if the court would fix the bail bond for the provisional release of the accused
Peaflorida at P250,000.00, he granted the motion to fix bail on November 21, 2001; and, at the time he issued the Order fixing the bail bond of the
accused at P250,000.00, he was not aware that a deportation order had already been issued by the BOI against the latter.2
In a Resolution dated January 15, 2003, the Court re-docketed the administrative complaint as a regular administrative matter and required the parties
to manifest within ten days from notice if they are willing to submit the case for decision based on the pleadings filed by the parties. 3
In compliance, the complainant and the respondent manifested their willingness to submit the case on the basis of the pleadings. 4 In addition to his
manifestation, however, respondent averred: Upon learning that an order of deportation was issued against Peaflorida, he ordered the cancellation of
the bail bond posted by Peaflorida and issued a warrant for the latters arrest on April 26, 2002; and that Peaflorida voluntarily surrendered himself on
October 24, 2002 and is presently detained at the Provincial Jail of Occidental Mindoro.5
In its Evaluation Report, the Office of the Court Administrator (OCA) recommends to the Court that respondent be fined P5,000.00 for Gross Ignorance
of the Law, reasoning that:
After going over the records of the case, it is very evident that respondent Judge acted with undue haste in issuing the order granting bail considering
the fact that in his earlier Order dated November 19, 2001, he did not grant a bail of P40,000.00 which the Provincial Prosecutor had previously
recommended for the provisional release of the accused. His denial was based on the ground that the case filed against the accused could be
considered large-scale Estafa, an unbailable offense. Respondent Judge should not have granted bail simply on the lack of readiness on the part of the
prosecution to present any witness to prove that the evidence of guilt of the accused was strong but should have endeavored to determine the
existence of such evidence.
Under the present rules, a hearing is required before granting bail whether it is a matter of right or discretion. The prosecution must always be given an
opportunity to present within a reasonable time, all the evidence that it may desire to introduce before the Court may resolve the motion for bail. If the
prosecution refuses to adduce evidence or fails to interpose an objection to the motion for bail, it is still mandatory for the court to conduct a hearing or
ask searching and clarificatory questions.
Moreover, since the accused was accompanied by the personnel of the Bureau of Immigration when brought to the RTC, Branch 46, San Jose,
Occidental Mindoro, for his arraignment in Criminal Case No. R-5075 respondent Judge could have easily verified from his escort if the former was
being detained for other crimes aside from the one where he was being arraigned in respondents sala. Had he done so, respondent could have been
informed outright by the B.I. personnel escort that the accused had already been the subject of a Summary Deportation Order and, thus, he could have
deferred action on the latters (accused) Motion to Fix Bail and afforded the Bureau of Immigration the chance and opportunity to interpose their
objection to the grant thereof.6 (Citations omitted).
The Court agrees with the findings and recommendation of the OCA.
Under the rules on bail, a hearing is mandatory in granting bail whether it is a matter of right or discretion. 7 A hearing is indispensable for the court to
ask searching questions from which it may infer the strength of the evidence of guilt, or the lack of it, against the accused, in cases where the offense is
punishable by death, reclusion perpetua or life imprisonment.8 After hearing, the courts order granting or refusing bail must contain a summary of the
evidence for the prosecution and based thereon, the judge should then formulate his own conclusion as to whether the evidence so presented is strong
enough as to indicate the guilt of the accused. 9 Otherwise, the order granting or denying the application for bail may be invalidated because the

247
Page 64 of 81

summary of evidence for the prosecution which contains the judges evaluation of the evidence may be considered as an aspect of procedural due
process for both the prosecution and the defense.10
The herein respondent granted bail to the accused Peaflorida without conducting a hearing despite his earlier pronouncement in the Order dated
November 19, 2001 denying bail as he considered the crime the accused Peaflorida was charged with to be a non-bailable offense. The manifestation
of the prosecutor that he is not ready to present any witness to prove that the prosecutions evidence against the accused is strong, is never a basis for
the outright grant of bail without a preliminary hearing on the matter.11 A hearing is required even when the prosecution refuses to adduce evidence or
fails to interpose an objection to the motion for bail.12
The joint manifestation of the prosecution and the defense that it would be fair and just if the court would fix the bail bond for the provisional release of
the accused at P250,000.00 does not justify the granting of bail without a hearing in a case involving a non-bailable offense. A hearing is necessary for
the court to take into consideration the guidelines in fixing the amount of bail 13 set forth in Section 9, Rule 114 of the Revised Rules of Criminal
Procedure, which reads:
SEC. 9. Amount of bail; guidelines. - The judge who issued the warrant or granted the application shall fix a reasonable amount of bail considering
primarily, but not limited to the following factors:
(a) Financial liability of the accused to give bail;
(b) Nature and circumstance of the offense;
(c) Penalty for the offense charged;
(d) Character and reputation of the accused;
(e) Age and health of the accused;
(f) Weight of the evidence against the accused;
(g) Probability of the accused appearing at the trial;
(h) Forfeiture of other bail;
(i) The fact that the accused was a fugitive from justice when arrested; and
(j) Pendency of other cases where the accused is on bail. Excessive bail shall not be required."
Needless to stress, judicial discretion is the domain of the judge and the duty to exercise discretion cannot be reposed upon the will or whim of the
prosecution or the defense. Respondent should have ascertained personally whether the evidence of guilt is strong and endeavored to determine the
propriety of the amount of bail recommended. To do away with the requisite bail hearing "is to dispense with this time-tested safeguard against
arbitrariness."14 It must always be remembered that imperative justice requires the proper observance of indispensable technicalities precisely designed
to ensure its proper dispensation.15
There is no evidence of malice or bad faith on the part of respondent when he granted bail to Peaflorida. Complainant failed to prove that respondent
had prior knowledge of the existence of a deportation order or that the latter was informed by the BOl of the deportation order dated September 14,
2001. The deportation order became final only on October 15, 2001. Prior thereto, respondent issued on September 18, 2001 a hold-departure order
against Peaflorida. Respondent directed the BOI not to allow Peaflorida from leaving the country since a warrant for his arrest was already issued by
the court.16 On October 15, 2001, the Notice of Arraignment in Criminal Case No. R-5075 was served to Peaflorida through the BOI. 17 In the hearing of
November 19, 2001, the personnel of the BOI escorted Peaflorida by reason of the warrant of arrest and hold departure order issued by the court. 18
From these facts, we cannot simply conclude that respondent had prior knowledge of the deportation order and maliciously thwarted its effect by
granting bail to Peaflorida. However, respondent cannot escape administrative liability by invoking unawareness of the deportation order. Absent
evidence of malice, respondents lack of knowledge of the deportation order will only free him from administrative liability for gross misconduct but not
for gross ignorance of the law for disregarding the rules on bail.1wphi1
The Court has held that a judge cannot be held administratively liable for an erroneous ruling on first impression, and malice cannot be inferred from his
having rendered a decision rectifying an earlier impression without proof beyond doubt of a conscious and deliberate intent on his part to commit an
injustice by such acts. 20 Nonetheless, so basic and fundamental is it to conduct a hearing in connection with the grant of bail that it would amount to
judicial apostasy for any member of the judiciary to disclaim knowledge or awareness thereof. 21 Having accepted the exalted position of a judge,
respondent owes the public and the court the duty to be proficient in the law. When a judge displays utter lack of familiarity with the basic rules of law,
he erodes the publics confidence in the competence of our courts.22 Ignorance of the law excuses no one - certainly not a judge.23
Respondents explanations that he ordered the cancellation of the bail bend posted by the accused Peaflorida and issued a warrant for the latters
arrest on April 26, 2002 upon learning that an order of deportation was issued against the latter; 24 that accused Peaflorida voluntarily surrendered
himself on October 24, 2002 and that he is presently detained at the Provincial Jail of Occidental Mindoro, 25 cannot serve to exonerate him or even
mitigate the penalty due him. Significantly, the order of revocation was made only on April 26, 2002, or five months after the issuance of the erroneous
Order of November 21, 2001 which was sought to be corrected. It is unfathomable that respondent realized his fallacious granting of bail only after he
filed his Comment herein dated March 22, 2002. The Order of April 26, 2002 is but a futile attempt to evade respondents administrative liability which
had already attached five months before when he granted bail without the required hearing. Fundamental knowledge of the law and a reasonable
understanding of recent jurisprudence ought to have guarded respondent against the precipitate and unjustified granting of bail or should have at least
prompted him to invalidate the same immediately thereafter,26 not five months later after a complaint against him had been filed by BOl Commissioner
Domingo.
As to the recommended penalty by the OCA, the amount of P5,000.00 appears to be commensurate with respondents infraction which amounts to
gross ignorance of law. Under Section 8 of A.M. No. 01-8-10-SC amending Rule 140 of the Rules of Court on the Discipline of Justices and Judges,
which took effect on October 1, 2001, gross ignorance of the law is classified as a serious charge which carries with it a penalty of either dismissal from
service, suspension or a fine of more then P20,000.00 but not exceeding P40,000.00. However, considering that malice or bad faith on the part of
respondent has not been established by the complainant, and, in the absence of a showing that respondent had earlier been found to have committed
an administrative offense,27 the Court deems it just and reasonable to impose upon respondent a fine of P5,000.00.
WHEREFORE, respondent Executive Judge Ernesto P. Pagayatan of the Regional Trial Court of San Jose, Occidental Mindoro (Branch 46) is found
guilty of Gross Ignorance of the Law and is hereby FINED the amount of Five Thousand Pesos (P5,000.00). He is further STERNLY WARNED that the
commission of similar acts in the future shall be dealt with more severely by this Court.
SO ORDERED.

Page 65 of 81

FIRST DIVISION
TRINIDAD O. LACHICA, A.M. No. MTJ-05-1609
Complainant, [OCA-IPI No. 03-1490-MTJ]
Present:
JUDGE ROSABELLA M. TORMIS,
Municipal Trial Court in Cities, Promulgated:
Branch 4, Cebu City,
Respondent. September 20, 2005
In an Affidavit dated October 2, 2003,[1] Trinidad O. Lachica charged Judge Rosabella M. Tormis of the Municipal Trial Court in Cities of Cebu City,
Branch IV, with Abuse of Authority relative to Criminal Cases Nos. 57220-R to 57223-R.[2] Complainant alleged that since the filing of the information,
accused Domugho has remained at large. Thus, the cases were ordered archived[3] but an alias warrant of arrest[4] was issued by respondent judge
on January 14, 2000.
On July 2, 2003, Domugho was apprehended by PO3 Epifanio G. Sanjorjo at around 8:45 p.m. and was brought to the police station for booking and
custody at 9:30 p.m.[5]
However, on July 3, 2003, at around 8:30 a.m., complainant was surprised to receive a call from the accused informing her that she was released from
confinement on July 2, 2003 at 10:00 p.m. Complainant inquired from the police station if an Order of Release was issued by the court, but she was
informed that the accused was released because the respondent judge called the police station and told the desk officer that the accused had posted a
cash bail bond and may already be released.
Complainant checked the case records but the expediente contained no copy of the release order. It was only at 1:00 p.m. that she was shown a copy
thereof. Meanwhile, the case records could not be located. It was only on 4:30 p.m. of July 3, 2003 that the same was found.
The police blotter showed no entry that an order of release was received by the police. Only a notation that the accused had put up a cash bail bond
was entered therein.
Complainant also averred that it was improper for the respondent judge to receive the cash bail bond as the function belongs exclusively to the Office of
the Clerk of Court. She claimed that respondent judge committed an act of impropriety when she called the police station to verbally order the release
of the accused. She claimed that it was irregular that no copy of the release order was found in the expediente in the morning of July 3, 2003
considering that it was supposedly issued on July 2, 2003.
In her Comment[6] dated December 3, 2003 respondent judge denied the charges of complainant. She maintained that on July 2, 2003 at 7:00 p.m.,
she issued the Order of Release after the accused posted a cash bond. She claimed that the accused was released by virtue of the Order of Release
and not on the basis of her alleged telephone call to the police station.
On August 2, 2004, the Court resolved to refer the case to the Executive Judge, Regional Trial Court, Cebu City for investigation, report and
recommendation.[7]
The investigating judge submitted a Report[8] dated November 18, 2004 recommending that respondent judge be fined in the amount of P20,000.00 or
suspended for three (3) months based on the following findings:
1. The accused was arrested at 8:45 in the evening of July 2, 200[4], was booked at the Waterfront Police Station at 9:00 p.m., and released without a
Release Order at 10:00 that same night.
2. The arresting officer and the accused never appeared before the respondent judge on the night of July 2, 200[4], as claimed by respondent judge.
The accused was arrested at 8:45 p.m., after her classes at Southwestern University. She could not have appeared before respondent judge prior to
her arrest since she was in school. Had it been true that the arresting officer appeared before the judge that night, it would have been highly improbable
for the arresting officer not to have asked for a copy of the Release Order.
3. No one saw the Release Order on July 2, 200[4], except the respondent judge, as per testimony of the complainant and Helen Mongoya, and as
shown by the police blotter, and the affidavit of the arresting officer claiming that they were reprimanded by their Chief because they released the
accused without a Release Order.
4. The accused was released without the Release Order, and only upon the telephone call of respondent judge.

Page 66 of 81

5. The Release Order was never issued on the night of July 2, 200[4]. No judge in his right mind would issue a Release Order without the record of the
case, more so if the case had been archived.
5. The Release Order appeared only in the afternoon of July 3, 200[4].
6. The record of the case was found by court aide, Juan Aos, in the bodega of MTCC, Branch 4, together with the records of other archived cases, at
about 4:30 in the afternoon of July 3, 200[4].
7. Respondent judge was in Manila early morning of July 3, 200[4].
8. It was physically impossible for the respondent judge to have signed the Release Order before 1:00 p.m. of July 3, 200[4], since she was in Manila.
Questions may be raised whether the Receipt for the Cash Bond and the Release Order were signed by a person other than the respondent judge. As
can be gleaned from the record, the signature appearing on the Receipt for the Cash Bond, the Release Order and the signature of the respondent
judge on her Comment dated December 10, 2003, do not appear to be signed by the same person.
9. Respondent judge authenticated the Release Order during the Investigation proper as the Release Order she issued on July 2, 2003.[9]
The Office of the Court Administrator (OCA) agreed with the findings of the investigating judge but recommended that respondent judge be suspended
for three (3) months.[10]
We agree with the findings of the investigating judge and the OCA except for the recommended penalty.
During the investigation, it was established that the accused was arrested on July 2, 2003 at 8:45 p.m. and was brought directly to the Waterfront Police
Station where she was booked at 9:00 p.m. At about 10:00 p.m. the accused was set free without a release order.[11]
Respondent judge, however, claimed that she issued the Order of Release on July 2, 2003 at around 7:00 p.m. after the accused and her counsel,
together with the arresting officer, came to her office and posted a cash bond. It was by virtue of this order that the accused was released.
A circumspect scrutiny of the testimonies given by respondent judge reveals that she made several untruthful statements possibly with the intent to
mislead the Court.
It was improbable that, as claimed by respondent judge, she issued the Order of Release on July 2, 2003 at around 7:00 p.m. considering that the
accused was apprehended at 8:45 p.m. The complainant and the arresting officer, as well as the entry in the police blotter all declared that the arrest
was made at 8:45 p.m. and not earlier. Verily, respondent judge could not have issued the release order at around 7:00 p.m. as the accused has not yet
been arrested at that time.
She also insisted that on July 2, 2003, the accused and her counsel, and the arresting officer went to her office and posted a bond whereupon she
issued the Order of Release. However, this is belied by the testimonies of the arresting officer and the complainant who both claimed that the accused
was brought directly to the police station after the arrest. We agree with the observation of the OCA that, it would be impossible for complainant or the
arresting officer not to have mentioned anything regarding this incident if the same actually transpired. Likewise, as pointed out by the investigating
judge, it is highly improbable for the arresting officer not to have demanded a copy of the release order if he really appeared before the respondent.
Incidentally, the arresting officer denied receiving any order of release from respondent judge on July 2, 2003. In fact, he claimed that they were
reprimanded by their commanding officer for releasing from their custody the person of the accused without any accompanying court order. The
following day, July 3, 2003, he went to the court to secure a copy of the said order.
Respondent judge also averred that the Order of Release was received by SP01 James Estrera, which receipt was duly noted in the police blotter. An
examination of the records, however, discloses that what SPO1 Estrera received was only a copy of the Receipt of the Cash Bail Bond dated July 2,
2003 and not the Order of Release. In fact, there was no mention of a release order in the police blotter.[12]
It is also undisputed that respondent judge personally received the cash bail bond for the accused. For this act alone, respondent is already
administratively liable. Section 14, Rule 114 of the Revised Rules of Criminal Procedure specifies the persons with whom a cash bail bond may be
deposited, namely: the collector of internal revenue or the provincial, city or municipal treasurer. A judge is not authorized to receive the deposit of cash
as bail nor should such cash be kept in his office.
The respondent judge is guilty of gross misconduct for having abused her judicial authority when she personally accepted the cash bail bond of the
accused and for deliberately making untruthful statements in her comment and during the investigation of the instant administrative case with intent to
mislead this Court.
The foregoing acts not only seriously undermine and adversely reflect on the honesty and integrity of respondent judge as an officer of the court; they
also betray a character flaw which speaks ill of her person. Making false representations is a vice which no judge should imbibe. As the judge is the
visible representation of the law, and more importantly justice, he must therefore, be the first to abide by the law and weave an example for the others
to follow.[13]
In the Judiciary, moral integrity is more than a cardinal virtue, it is a necessity.[14] Respondent must bear in mind that the exacting standards of conduct
demanded from judges are designed to promote public confidence in the integrity and impartiality of the judiciary.[15] When the judge himself becomes
the transgressor of the law which he is sworn to apply, he places his office in disrepute, encourages disrespect for the law and impairs public
confidence in the integrity of the judiciary itself.[16]
Misconduct is defined as any unlawful conduct of a person concerned in the administration of justice prejudicial to the rights of parties or to the right
determination of the cause. It generally means wrongful, improper or unlawful conduct motivated by a premeditated, obstinate or intentional purpose.
[17] To justify the taking of drastic disciplinary action, as is what is sought by complainant in this case, the law requires that the error or mistake must be
gross or patent, malicious, deliberate or in bad faith.[18]
It need not be overemphasized that in receiving the cash bond respondent judge ran afoul with Rule 114 of the Rules of Criminal Procedure. Indeed, in
the case of Office of the Court Administrator v. Fernandez,[19] the Court held that:
The rules specify the persons with whom a cash bail bond may be deposited namely: the collector of internal revenue, or the provincial, city or
municipal treasurer. Section 14 of Rule 114 of the Revised Rules of Criminal Procedure (effective December 1, 2000) provides:

Page 67 of 81

SEC. 14. Deposit of Cash as bail The accused or any person acting in his behalf may deposit in cash with the nearest collector of internal revenue or
provincial, city or municipal treasurer the amount of the bail fixed by the court, or recommended by the prosecutor who investigated or filed the case.
Upon submission of a proper certificate of deposit and of a written undertaking showing compliance with the requirements of section 2 of this Rule, the
accused shall be discharged from custody. The money deposited shall be considered as bail and applied to the payment of fine and costs while the
excess, if any, shall be returned to the accused or to whoever made the deposit.
A judge is not one of those authorized to receive the deposit of cash as bail, nor should such cash be kept in the office of the judge.
Gross misconduct under Section 8(3), Rule 140 of the Revised Rules of Court, as amended, is classified as a serious offense punishable by any of the
sanctions enumerated in Section 11 of the same Rule which provides that:
SEC. 11. Sanctions. A. If the respondent is guilty of a serious charge, any of the following sanctions may be imposed:
1. Dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment
to any public office, including government-owned or controlled corporations. Provided, however, that the forfeiture of benefits shall in no case include
accrued leave credits;
2. Suspension from office without salary and other benefits for more than three (3) but not exceeding six (6) months; or
3. A fine of more than P20,000.00 but not exceeding P40,000.00.
This is not the first time that respondent judge was sanctioned by this Court. It appears that aside from this case, respondent judge has been
administratively charged eight (8) other times.[20] Of these cases three (3) have been dismissed.[21]
On April 27, 2004 in Administrative Matter No. MTJ-00-1337,[22] the Court found respondent guilty of improper conduct for trying to influence the
course of litigation in Criminal Case No. 99796-12 and was accordingly reprimanded. She was also admonished for conduct unbecoming of a judge.
On December 17, 2004, respondent was fined in the amount of P5,000.00 in Administrative Matters Nos. 04-7-373-RTC [23] and 04-7-374-RTC,[24] for
gross violation of Section 17, Rule 114, for having approved the bail of an accused in Criminal Cases Nos. CEB-BRL-783 and 922 pending before the
RTC, Branch 60, Barili, Cebu, absent showing of unavailability of all RTC judges in Cebu City.
On March 16, 2005, respondent judge was admonished in Administrative Matter No. 04-1554-MTJ and reminded to be more circumspect in granting
postponements.
Clearly, being chastised thrice has not reformed respondent. For the foregoing considerations, we find that the penalties recommended by the
investigating judge and the OCA are not commensurate to respondent judges misconduct which is aggravated by her past misdeeds. Respondent
judges infraction merits suspension from the service for six (6) months.
WHEREFORE, Rosabella M. Tormis, Presiding Judge, Municipal Trial Court in Cities, Cebu City, Branch IV, is found GUILTY of gross misconduct and
is SUSPENDED from office for six (6) months without salary and other benefits and STERNLY WARNED that a repetition of the same or similar acts
shall be dealt with more severely.
SO ORDERED.

Page 68 of 81

EN BANC
[G.R. No. 148468. January 28, 2003]
ATTY. EDWARD SERAPIO, petitioner, vs. SANDIGANBAYAN (THIRD DIVISION), PEOPLE OF THE PHILIPPINES, and PHILIPPINE NATIONAL
POLICE DIRECTOR-GENERAL LEANDRO MENDOZA, respondents.
[G.R. No. 148769. January 28, 2003]
EDWARD S. SERAPIO, petitioner, vs. HONORABLE SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.
[G.R. No. 149116. January 28, 2003]
EDWARD S. SERAPIO, petitioner, vs. HONORABLE SANDIGANBAYAN (THIRD DIVISION) and PEOPLE OF THE PHILIPPINES, respondents.
Before the Court are two petitions for certiorari filed by petitioner Edward Serapio, assailing the resolutions of the Third Division of the Sandiganbayan
denying his petition for bail, motion for a reinvestigation and motion to quash, and a petition for habeas corpus, all in relation to Criminal Case No.
26558 for plunder wherein petitioner is one of the accused together with former President Joseph E. Estrada, Jose Jinggoy P. Estrada and several
others.
The records show that petitioner was a member of the Board of Trustees and the Legal Counsel of the Erap Muslim Youth Foundation, a non-stock,
non-profit foundation established in February 2000 ostensibly for the purpose of providing educational opportunities for the poor and underprivileged but
deserving Muslim youth and students, and support to research and advance studies of young Muslim educators and scientists.
Sometime in April 2000, petitioner, as trustee of the Foundation, received on its behalf a donation in the amount of Two Hundred Million Pesos ( P200
Million) from Ilocos Sur Governor Luis Chavit Singson through the latters assistant Mrs. Yolanda Ricaforte. Petitioner received the donation and turned
over the said amount to the Foundations treasurer who later deposited it in the Foundations account with the Equitable PCI Bank.
In the latter part of the year 2000, Gov. Singson publicly accused then President Joseph E. Estrada and his cohorts of engaging in several illegal
activities, including its operation on the illegal numbers game known as jueteng. This triggered the filing with the Office of the Ombudsman of several
criminal complaints against Joseph Estrada, Jinggoy Estrada and petitioner, together with other persons. Among such complaints were: Volunteers
Against Crime and Corruption, versus Joseph Ejercito Estrada, Edward Serapio, et al., docketed as OMB Crim. Case No. 0-00-1754; Graft Free
Philippines Foundation, Inc., versus Joseph Ejercito Estrada, Edward Serapio, et al., docketed as OMB Crim. Case No. 0-00-1755; and Leonardo De
Vera, Romeo T. Capulong and Dennis B. Funa, versus Joseph Estrada, Yolanda Ricaforte, Edward Serapio, Raul De Guzman, Danilo Reyes and Mila
Reforma, docketed as OMB Crim. Case No. 0-00-1757.
Subsequently, petitioner filed his Counter-Affidavit dated February 21, 2001. The other respondents likewise filed their respective counter-affidavits. The
Office of the Ombudsman conducted a preliminary investigation of the complaints and on April 4, 2001, issued a joint resolution recommending, inter
alia, that Joseph Estrada, petitioner and several others be charged with the criminal offense of plunder.
On April 4, 2001, the Ombudsman filed with the Sandiganbayan several Informations against former President Estrada, who earlier had resigned from
his post as President of the Republic of the Philippines. One of these Informations, docketed as Criminal Case No. 26558, charged Joseph Estrada with
plunder. On April 18, 2001, the Ombudsman filed an amended Information in said case charging Estrada and several co-accused, including petitioner,
with said crime. No bail was recommended for the provisional release of all the accused, including petitioner. The case was raffled to a special division
which was subsequently created by the Supreme Court. The amended Information reads:
That during the period from June, 1998 to January, 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph Ejercito
Estrada, THEN A PUBLIC OFFICER, BEING THEN THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by himself AND/OR in
CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY,
BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION,
AUTHORITY, RELATIONSHIP, CONNECTION OR INFLUENCE, did then and there wilfully, unlawfully and criminally amass, accumulate and acquire
BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount OR TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION
EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS [P4,097,804,173.17], more or
less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND
THE REPUBLIC OF THE PHILIPPINES, through ANY OR A combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS,
described as follows:
(a)by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTYFIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE,
KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connivance with co-accused CHARLIE ATONG ANG, Jose Jinggoy
Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF
ILLEGAL GAMBLING;
(b)
by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR INDIRECTLY, for HIS OR THEIR PERSONAL gain
and benefit public fund in the amount of ONE HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or less, representing a portion of the
Page 69 of 81

TWO HUNDRED MILLION PESOS [P200,000,000.00]) tobacco excise tax share allocated for the Province of Ilocos Sur under R.A. No. 7171, BY
HIMSELF AND/OR in CONNIVANCE with co-accused Charlie Atong Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr.
Uy, and Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES AND JANE DOES;
(c)
by directing, ordering and compelling FOR HIS PERSONAL GAIN AND BENEFIT, the Government Service Insurance System (GSIS) TO
PURCHASE, 351,878,000 SHARES OF STOCKS, MORE OR LESS, and the Social Security System (SSS), 329,855,000 SHARES OF STOCK, MORE
OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED
SIXTY FIVE THOUSAND SIX HUNDERED SEVEN PESOS AND FIFTY CENTAVOS [P1,102,965,607.50] AND MORE OR LESS SEVEN HUNDRED
FORTY FOUR MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS [P744,612,450.00], RESPECTIVELY, OR A
TOTAL OR MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY
SEVEN PESOS AND FIFTY CENTAVOS [P1,847,578,057.50]; AND BY COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF
AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE DOES, COMMISSIONS OR PERCENTAGES OF SHARES OF STOCK IN THE AMOUNT
OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS [189,700,000.00] MORE OR LESS, FROM THE BELLE
CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME JOSE VELARDE;
(d)
by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBACKS, OR ANY FORM OF PECUNIARY
BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, the amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY
THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS
[P3,233,104,173.17] AND DEPOSITING THE SAME UNDER HIS ACCOUNT NAME JOSE VELARDE AT THE EQUITABLE-PCI BANK.
CONTRARY TO LAW.248[1]
On April 5, 2001, petitioner obtained a copy of the Ombudsmans Joint Resolution finding probable cause against him for plunder. The next day, April 6,
2001, he filed with the Office of the Ombudsman a Motion for Reconsideration and/or Reinvestigation. 249[2] Petitioner likewise filed on said date, this
time with the Sandiganbayan, an Urgent Omnibus Motion: (a) To Hold in Abeyance the Issuance of Warrant of Arrest and Further Proceedings; (b) To
Conduct a Determination of Probable Cause; (c) For Leave to File Accuseds Motion for Reconsideration and/or Reinvestigation; and (d) To Direct the
Ombudsman to Conduct a Reinvestigation of the Charges against accused Edward Serapio.250[3]
On April 10, 2001, the Ombudsman issued an order denying petitioners motion for reconsideration and/or reinvestigation on the ground of lack of
jurisdiction since the amended Information charging petitioner with plunder had already been filed with the Sandiganbayan. 251[4]
In a parallel development, the Sandiganbayan issued a Resolution on April 25, 2001 in Criminal Case No. 26558 finding probable cause to justify the
issuance of warrants of arrest for the accused, including petitioner. Accordingly, the Sandiganbayan issued an Order on the same date for the arrest of
petitioner.252[5] When apprised of said order, petitioner voluntarily surrendered at 9:45 p.m. on the same day to Philippine National Police Chief Gen.
Leandro Mendoza. Petitioner has since been detained at Camp Crame for said charge.
The Sandiganbayan set the arraignment of the accused, including petitioner, in Criminal Case No. 26558 on June 27, 2001. In the meantime, on April
27, 2001, petitioner filed with the Sandiganbayan an Urgent Petition for Bail which was set for hearing on May 4, 2001. 253[6] For his part, petitioners coaccused Jose Jinggoy Estrada filed on April 20, 2001 a Very Urgent Omnibus Motion alleging that he was entitled to bail as a matter of right.
During the hearing on May 4, 2001 on petitioners Urgent Petition for Bail, the prosecution moved for the resetting of the arraignment of the accused
earlier than the June 27, 2001 schedule. However, the Sandiganbayan denied the motion of the prosecution and issued an order declaring that the
petition for bail can and should be heard before petitioners arraignment on June 27, 2001 and even before the other accused in Criminal Case No.
26558 filed their respective petitions for bail. Accordingly, the Sandiganbayan set the hearing for the reception of evidence on petitioners petition for bail
on May 21 to 25, 2001.
On May 17, 2001, four days before the hearing on petitioners petition for bail, the Ombudsman filed an urgent motion for early arraignment of Joseph
Estrada, Jinggoy Estrada and petitioner and a motion for joint bail hearings of Joseph Estrada, Jinggoy Estrada and petitioner. The following day,
petitioner filed a manifestation questioning the propriety of including Joseph Estrada and Jinggoy Estrada in the hearing on his (petitioners) petition for
bail.
The Sandiganbayan issued a Resolution on May 18, 2001 resetting the hearings on petitioners petition for bail to June 18 to 28, 2001 to enable the
court to resolve the prosecutions pending motions as well as petitioners motion that his petition for bail be heard as early as possible, which motion the
prosecution opposed.
On May 31, 2001, the Sandiganbayan issued a Resolution denying petitioners April 6, 2001 Urgent Omnibus Motion. The court ruled that the issues
posed by petitioner had already been resolved in its April 25, 2001 Resolution finding probable cause to hold petitioner and his co-accused for trial. 254[7]
Petitioner filed a motion for reconsideration of the said May 31, 2001 Resolution.
On June 1, 2001, the Sandiganbayan issued a resolution requiring the attendance of petitioner as well as all the other accused in Criminal Case No.
26558 during the hearings on the petitions for bail under pain of waiver of cross-examination. The Sandiganbayan, citing its inherent powers to proceed
with the trial of the case in the manner it determines best conducive to orderly proceedings and speedy termination of the case, directed the other

248
249
250
251
252
253
254
Page 70 of 81

accused to participate in the said bail hearing considering that under Section 8, Rule 114 of the Revised Rules of Court, whatever evidence is adduced
during the bail hearing shall be considered automatically reproduced at the trial.255[8]
However, instead of proceeding with the bail hearing set by it on June 18, 2001, the Sandiganbayan issued an Order on June 15, 2001 canceling the
said bail hearing due to pending incidents yet to be resolved and reset anew the hearing to June 26, 2001.256[9]
On the eve of said hearing, the Sandiganbayan issued a resolution denying petitioners motion for reconsideration of its May 31, 2001 Resolution. The
bail hearing on June 26, 2001 did not again proceed because on said date petitioner filed with the Sandiganbayan a motion to quash the amended
Information on the grounds that as against him, the amended Information does not allege a combination or series of overt or criminal acts constitutive of
plunder; as against him, the amended Information does not allege a pattern of criminal acts indicative of an overall unlawful scheme or conspiracy; the
money alleged in paragraph (a) of the amended Information to have been illegally received or collected does not constitute ill-gotten wealth as defined
in Section 1(d) of Republic Act No. 7080; and the amended Information charges him of bribery and illegal gambling. 257[10] By way of riposte, the
prosecution objected to the holding of bail hearing until petitioner agreed to withdraw his motion to quash. The prosecution contended that petitioners
motion to quash the amended Information was antithetical to his petition for bail.
The Sandiganbayan reset the arraignment of accused and the hearing on the petition for bail of petitioner in Criminal Case No. 26558 for July 10, 2001
to enable it to resolve the pending incidents and the motion to quash of petitioner. However, even before the Sandiganbayan could resolve the pending
motions of petitioner and the prosecution, petitioner filed with this Court on June 29, 2001 a Petition for Habeas Corpus and Certiorari, docketed as
G.R. No. 148468, praying that the Court declare void the questioned orders, resolutions and actions of the Sandiganbayan on his claim that he was
thereby effectively denied of his right to due process. Petitioner likewise prayed for the issuance of a writ of habeas corpus; that the People be declared
to have waived their right to present evidence in opposition to his petition for bail; and, premised on the failure of the People to adduce strong evidence
of petitioners guilt of plunder, that he be granted provisional liberty on bail after due proceedings. 258[11]
Meanwhile, on June 28, 2001, Jose Jinggoy Estrada filed with the Sandiganbayan a motion praying that said court resolve his motion to fix his bail.
On July 9, 2001, the Sandiganbayan issued a Resolution denying petitioners motion to quash the amended Information. Petitioner, through counsel,
received on said date a copy of said resolution.259[12] The motion to fix bail filed by Jose Jinggoy Estrada was also resolved by the Sandiganbayan.
On July 10, 2001, just before his arraignment in Criminal Case No. 26558, petitioner manifested to the Sandiganbayan that he was going to file a
motion for reconsideration of the July 9, 2001 Resolution denying his motion to quash and for the deferment of his arraignment. The Sandiganbayan,
however, declared that there was no provision in the Rules of Court or in the Sandiganbayans rules granting the right to petitioner to file a motion for the
reconsideration of an interlocutory order issued by it and ordered petitioner to orally argue his motion for reconsideration. When petitioner refused, the
Sandiganbayan proceeded with his arraignment. Petitioner refused to plead, impelling the court to enter a plea of not guilty for him.
On July 20, 2001, petitioner filed with the Court a Petition for Certiorari, docketed as G.R. No. 148769, alleging that the Sandiganbayan acted without or
in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing its July 9, 2001 Resolution denying his
motion to quash, notwithstanding the fact that material inculpatory allegations of the amended Information against him do not constitute the crime of
plunder; and that he is charged, under the said amended Information, for more than one offense. Jose Jinggoy Estrada likewise filed petition for
certiorari with the Court docketed as G.R. No. 148965 for the nullification of a resolution of the Sandiganbayan denying his motion to fix bail.
On August 9, 2001, petitioner filed with the Court another Petition for Certiorari, docketed as G.R. No. 149116, assailing the Sandiganbayans
Resolution dated 31 May 2001 which denied his April 6, 2001 Urgent Omnibus Motion and its June 25, 2001 Resolution denying his motion for
reconsideration of its May 31, 2001 Resolution.
Re: G.R. No. 148769
Petitioner avers that:
THE SANDIGANBAYAN ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION, IN DENYING PETITIONER SERAPIOS MOTION TO QUASH NOTWITHSTANDING THAT
I
THE FACTS ALLEGED IN THE AMENDED INFORMATION AS AGAINST PETITIONER SERAPIO DO NOT CONSTITUTE THE CRIME OF PLUNDER.
A.The Amended Information, as against petitioner Serapio, does not allege a combination or series of overt or criminal acts constitutive of plunder.
B.
The Amended Information, as against petitioner Serapio, does not allege a pattern of criminal acts indicative of an overall unlawful scheme or
conspiracy.
C.
The money described in paragraph (a) of the Amended Information and alleged to have been illegally received or collected does not
constitute ill-gotten wealth as defined in Section 1(d), Republic Act No. 7080, as amended.
II
THE AMENDED INFORMATION CHARGES MORE THAN ONE OFFENSE.260[13]
Petitioner asserts that, on the face of the amended Information, he is charged with plunder only in paragraph (a) which reads:
(a)by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTYFIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE,
KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connivance with co-accused CHARLIE ATONG ANG, Jose Jinggoy
Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF
ILLEGAL GAMBLING;261[14]
Petitioner asserts that there is no allegation in paragraph (a) of the amended Information of a combination or series of overt or criminal acts constituting
plunder as described in Section 1(d) of R.A. 7080 as amended. Neither does the amended Information allege a pattern of criminal acts. He avers that
his single act of toleration or protection of illegal gambling impelled by a single criminal resolution does not constitute the requisite combination or series

255
256
257
258
259
260
261
Page 71 of 81

of acts for plunder. He further claims that the consideration consisting of gifts, percentages or kickbacks in furtherance of said resolution turned over to
and received by former President Joseph E. Estrada on several occasions does not cure the defect in the amended information. Petitioner insists that
on the face of the amended Information he is charged only with bribery or illegal gambling and not of plunder.
Petitioner argues that the P540 million which forms part of the P4,097,804,173.17 amassed by former President Joseph E. Estrada in confabulation
with his co-accused is not ill-gotten wealth as defined in Section 1(d) of R.A. 7080.
We do not agree with petitioner. Section 6, Rule 110 of the Revised Rules of Criminal Procedure provides that:
Sec. 6. Sufficiency of complaint or information. A complaint or information is sufficient if it states the name of the accused, the designation of the offense
given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the
commission of the offense; and the place where the offense was committed.
When the offense was committed by more than one person, all of them shall be included in the complaint or information. 262[15]
The acts or omissions complained or must be alleged in such form as is sufficient to enable a person of common understanding to know what offense is
intended to be charged and enable the court to know the proper judgment. The Information must allege clearly and accurately the elements of the crime
charged. What facts and circumstances are necessary to be included therein must be determined by reference to the definition and elements of the
specific crimes. The purpose of the requirement of alleging all the elements of the crime in the Information is to inform an accused of the nature of the
accusation against him so as to enable him to suitably prepare for his defense. 263[16] Another purpose is to enable accused, if found guilty, to plead his
conviction in a subsequent prosecution for the same offense.264[17] The use of derivatives or synonyms or allegations of basic facts constituting the
offense charged is sufficient.265[18]
In this case, the amended Information specifically alleges that all the accused, including petitioner, connived and conspired with former President
Joseph E. Estrada to commit plunder through any or a combination or a series of overt or criminal acts or similar schemes or means. And in paragraph
(a) of the amended Information, petitioner and his co-accused are charged with receiving or collecting, directly or indirectly, on several instances money
in the aggregate amount of P545,000,000.00. In Jose Jinggoy Estrada vs. Sandiganbayan (Third Division), et al.,266[19] we held that the word series is
synonymous with the clause on several instances; it refers to a repetition of the same predicate act in any of the items in Section 1(d) of the law. We
further held that the word combination contemplates the commission of at least any two different predicate acts in any of the said items. We ruled that
plainly, subparagraph (a) of the amended information charges accused therein, including petitioner, with plunder committed by a series of the same
predicate act under Section 1(d)(2) of the law and that:
x x x Sub-paragraph (a) alleged the predicate act of receiving, on several instances, money from illegal gambling, in consideration of toleration or
protection of illegal gambling, and expressly names petitioner as one of those who conspired with former President Estrada in committing the offense.
This predicate act corresponds with the offense described in item [2] of the enumeration in Section 1(d) of R.A. No. 7080. x x x. 267[20]
It is not necessary to allege in the amended Information a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy
because as Section 3 of R.A. 7080 specifically provides, the same is evidentiary and the general rule is that matters of evidence need not be alleged in
the Information.268[21]
The Court also ruled in Jose Jinggoy Estrada vs. Sandiganbayan 269[22] that the aggregate amount of P4,097,804,173.17 inclusive of the P545 million
alleged in paragraph (a) of the amended information is ill-gotten wealth as contemplated in Section 1, paragraph 1(d) of Republic Act 7080, as
amended, and that all the accused in paragraph (a) to (d) of the amended information conspired and confederated with former President Estrada to
enable the latter to amass, accumulate or acquire ill-gotten wealth in the aggregate amount of P4,097,804,173.17.
Under the amended Information, all the accused, including petitioner, are charged of having conspired and confabulated together in committing plunder.
When two or more persons conspire to commit a crime, each is responsible for all the acts of others. In contemplation of law, the act of the conspirator
is the act of each of them.270[23] Conspirators are one man, they breathe one breath, they speak one voice, they wield one arm and the law says that
the acts, words and declarations of each, while in the pursuit of the common design, are the acts, words and declarations of all. 271[24]
Petitioner asserts that he is charged under the amended Information of bribery and illegal gambling and others. The Sandiganbayan, for its part, held
that petitioner is not charged with the predicate acts of bribery and illegal gambling but is charged only with one crime that of plunder:
THE ISSUE OF WHETHER OR NOT THE INFORMATION
CHARGES MORE THAN ONE OFFENSE
According to the accused Estradas and Edward Serapio the information charges more than one offense, namely, bribery (Article 210 of the Revised
Penal Code), malversation of public funds or property (Article 217, Revised Penal Code) and violations of Sec. 3(e) of Republic Act (RA No. 3019) and
Section 7(d) of RA 6713.
This contention is patently unmeritorious. The acts alleged in the information are not charged as separate offenses but as predicate acts of the crime of
plunder.

262
263
264
265
266
267
268
269
270
271
Page 72 of 81

It should be stressed that the Anti-Plunder law specifically Section 1(d) thereof does not make any express reference to any specific provision of laws,
other than R.A. No. 7080, as amended, which coincidentally may penalize as a separate crime any of the overt or criminal acts enumerated therein.
The said acts which form part of the combination or series of act are described in their generic sense. Thus, aside from malversation of public funds, the
law also uses the generic terms misappropriation, conversion or misuse of said fund. The fact that the acts involved may likewise be penalized under
other laws is incidental. The said acts are mentioned only as predicate acts of the crime of plunder and the allegations relative thereto are not to be
taken or to be understood as allegations charging separate criminal offenses punished under the Revised Penal Code, the Anti-Graft and Corrupt
Practices Act and Code of Conduct and Ethical Standards for Public Officials and Employees.272[25]
This Court agrees with the Sandiganbayan. It is clear on the face of the amended Information that petitioner and his co-accused are charged only with
one crime of plunder and not with the predicate acts or crimes of plunder. It bears stressing that the predicate acts merely constitute acts of plunder and
are not crimes separate and independent of the crime of plunder. Resultantly then, the petition is dismissed.
Re: G.R. No. 149116
Petitioner assails the May 31, 2001 Joint Resolution of the Sandiganbayan denying his April 4, 2001 Urgent Omnibus Motion contending that:
GROUNDS FOR THE PETITION
THE SANDIGANBAYAN ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION IN SUMMARILY DENYING PETITIONER SERAPIOS URGENT OMNIBUS MOTION AND MOTION FOR
RECONSIDERATION (RE: RESOLUTION DATED 31 MAY 2001), NOTWITHSTANDING THAT THE OMBUDSMAN HAD TOTALLY DISREGARDED
EXCULPATORY EVIDENCE AND COMMITTED GRAVE AND MANIFEST ERRORS OF LAW SERIOUSLY PREJUDICIAL TO THE RIGHTS AND
INTERESTS OF PETITIONER SERAPIO, AND THERE IS NO PROBABLE CAUSE TO SUPPORT AN INDICTMENT FOR PLUNDER AS AGAINST
PETITIONER SERAPIO.273[26]
Petitioner claims that the Sandiganbayan committed grave abuse of discretion in denying his omnibus motion to hold in abeyance the issuance of a
warrant for his arrest as well as the proceedings in Criminal Case No. 26558; to conduct a determination of probable cause; and to direct the
Ombudsman to conduct a reinvestigation of the charges him. Petitioner asseverates that the Ombudsman had totally disregarded exculpatory evidence
and committed grave abuse of discretion in charging him with plunder. He further argues that there exists no probable cause to support an indictment
for plunder as against him.274[27]
Petitioner points out that the joint resolution of the Ombudsman does not even mention him in relation to the collection and receipt of jueteng money
which started in 1998275[28] and that the Ombudsman inexplicably arrived at the conclusion that the Erap Muslim Youth Foundation was a money
laundering front organization put up by Joseph Estrada, assisted by petitioner, even though the latter presented evidence that said Foundation is a
bona fide and legitimate private foundation.276[29] More importantly, he claims, said joint resolution does not indicate that he knew that the P200 million
he received for the Foundation came from jueteng.277[30]
Petitioner insists that he cannot be charged with plunder since: (1) the P200 million he received does not constitute ill-gotten wealth as defined in
Section 1(d) of R.A. No. 7080; 278[31] (2) there is no evidence linking him to the collection and receipt of jueteng money;279[32] (3) there was no showing
that petitioner participated in a pattern of criminal acts indicative of an overall unlawful scheme or conspiracy to amass, accumulate or acquire ill-gotten
wealth, or that his act of receiving the P200 million constitutes an overt criminal act of plunder.280[33]
Petitioner argues further that his motion for reinvestigation is premised on the absolute lack of evidence to support a finding of probable cause for
plunder as against him,281[34] and hence he should be spared from the inconvenience, burden and expense of a public trial. 282[35]
Petitioner also avers that the discretion of government prosecutors is not beyond judicial scrutiny. He asserts that while this Court does not ordinarily
look into the existence of probable cause to charge a person for an offense in a given case, it may do so in exceptional circumstances, which are
present in this case: (1) to afford adequate protection to the constitutional rights of the accused; (2) for the orderly administration of justice or to avoid
oppression; (3) when the acts of the officer are without or in excess of authority; and (4) where the charges are manifestly false and motivated by the
lust for vengeance.283[36] Petitioner claims that he raised proper grounds for a reinvestigation by asserting that in issuing the questioned joint resolution,
the Ombudsman disregarded evidence exculpating petitioner from the charge of plunder and committed errors of law or irregularities which have been
prejudicial to his interest.284[37] He also states that during the joint preliminary investigations for the various charges against Joseph Estrada and his
associates, of which the plunder charge was only one of the eight charges against Estrada et al., he was not furnished with copies of the other

272
273
274
275
276
277
278
279
280
281
282
283
Page 73 of 81

complaints nor given the opportunity to refute the evidence presented in relation to the other seven cases, even though the evidence presented therein
were also used against him, although he was only charged in the plunder case.285[38]
The People maintain that the Sandiganbayan committed no grave abuse of discretion in denying petitioners omnibus motion. They assert that since the
Ombudsman found probable cause to charge petitioner with the crime of plunder, the Sandiganbayan is bound to assume jurisdiction over the case and
to proceed to try the same. They further argue that a finding of probable cause is merely preliminary and prefatory of the eventual determination of guilt
or innocence of the accused, and that petitioner still has the chance to interpose his defenses in a full blown trial where his guilt or innocence may
finally be determined.286[39]
The People also point out that the Sandiganbayan did not commit grave abuse of discretion in denying petitioners omnibus motion asking for, among
others, a reinvestigation by the Ombudsman, because his motion for reconsideration of the Ombudsmans joint resolution did not raise the grounds of
either newly discovered evidence, or errors of law or irregularities, which under Republic Act No. 6770 are the only grounds upon which a motion for
reconsideration may be filed.287[40]
The People likewise insist that there exists probable cause to charge petitioner with plunder as a co-conspirator of Joseph Estrada. 288[41]
This Court does not agree with petitioner.
Case law has it that the Court does not interfere with the Ombudsmans discretion in the conduct of preliminary investigations. Thus, in Raro vs.
Sandiganbayan289[42], the Court ruled:
x x x. In the performance of his task to determine probable cause, the Ombudsmans discretion is paramount. Thus, in Camanag vs. Guerrero, this
Court said:
x x x. (S)uffice it to state that this Court has adopted a policy of non-interference in the conduct of preliminary investigations, and leaves to the
investigating prosecutor sufficient latitude of discretion in the exercise of determination of what constitutes sufficient evidence as will establish probable
cause for filing of information against the supposed offender.
In Cruz, Jr. vs. People,290[43] the Court ruled thus:
Furthermore, the Ombudsmans findings are essentially factual in nature. Accordingly, in assailing said findings on the contention that the Ombudsman
committed a grave abuse of discretion in holding that petitioner is liable for estafa through falsification of public documents, petitioner is clearly raising
questions of fact here. His arguments are anchored on the propriety or error in the Ombudsmans appreciation of facts. Petitioner cannot be unaware
that the Supreme Court is not a trier of facts, more so in the consideration of the extraordinary writ of certiorari where neither question of fact nor even
of law are entertained, but only questions of lack or excess of jurisdiction or grave abuse of discretion. Insofar as the third issue is concerned, we find
that no grave abuse of discretion has been committed by respondents which would warrant the granting of the writ of certiorari.
Petitioner is burdened to allege and establish that the Sandiganbayan and the Ombudsman for that matter committed grave abuse of discretion in
issuing their resolution and joint resolution, respectively. Petitioner failed to discharge his burden. Indeed, the Court finds no grave abuse of discretion
on the part of the Sandiganbayan and the Ombudsman in finding probable cause against petitioner for plunder. Neither did the Sandiganbayan abuse
its discretion in denying petitioners motion for reinvestigation of the charges against him in the amended Information. In its Resolution of April 25, 2001,
the Sandiganbayan affirmed the finding of the Ombudsman that probable cause exists against petitioner and his co-accused for the crime of plunder,
thus:
In the light of the foregoing and considering the allegations of the Amended Information dated 18 April 2001 charging the accused with the offense of
PLUNDER and examining carefully the evidence submitted in support thereof consisting of the affidavits and sworn statements and testimonies of
prosecution witnesses and several other pieces of documentary evidence, as well as the respective counter-affidavits of accused former President
Joseph Estrada dated March 20, 2001, Jose Jinggoy Pimentel Estrada dated February 20, 2001, Yolanda T. Ricaforte dated January 21, 2001 and
Edward S. Serapio dated February 21, 2001, the Court finds and so holds that probable cause for the offense of PLUNDER exists to justify issuance of
warrants of arrest of accused former President Joseph Ejercito Estrada, Mayor Jose Jinggoy Estrada, Charlie Atong Ang, Edward Serapio, Yolanda T.
Ricaforte, Alma Alfaro, John Doe. a.k.a. Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a Delia Rajas. 291[44]
Likewise, in its Resolution dated May 31, 2001 of petitioners omnibus motion, the Sandiganbayan noted that a preliminary investigation was fully
conducted in accordance with Rule II, Administrative Order No. 7 of the Office of the Ombudsman, pursuant to Sections 18, 23 and 27 of Republic Act
No. 6770 (The Ombudsman Act of 1989); and that all the basic complaints and evidence in support thereof were served upon all the accused. 292[45] It
was in light of such findings that the Sandiganbayan held that there was no basis for the allegation that accused therein (including petitioner) were
deprived of the right to seek a reconsideration of the Ombudsmans Resolution dated April 4, 2001 finding probable cause to charge them with plunder
after the conduct of preliminary investigation in connection therewith. In addition, the Sandiganbayan pointed out that petitioner filed a motion for
reconsideration of the Ombudsmans resolution, but failed to show in his motion that there were newly discovered evidence, or that the preliminary
investigation was tainted by errors of law or irregularities, which are the only grounds for which a reconsideration of the Ombudsmans resolution may
be granted.293[46]

284
285
286
287
288
289
290
291
292
293
Page 74 of 81

It bears stressing that the right to a preliminary investigation is not a constitutional right, but is merely a right conferred by statute. 294[47] The absence of
a preliminary investigation does not impair the validity of the Information or otherwise render the same defective and neither does it affect the
jurisdiction of the court over the case or constitute a ground for quashing the Information. 295[48] If the lack of a preliminary investigation does not render
the Information invalid nor affect the jurisdiction of the court over the case, with more reason can it be said that the denial of a motion for reinvestigation
cannot invalidate the Information or oust the court of its jurisdiction over the case. Neither can it be said that petitioner had been deprived of due
process. He was afforded the opportunity to refute the charges against him during the preliminary investigation.
The purpose of a preliminary investigation is merely to determine whether a crime has been committed and whether there is probable cause to believe
that the person accused of the crime is probably guilty thereof and should be held for trial. 296[49] As the Court held in Webb vs. De Leon, [a] finding of
probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspect.
Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and
definitely, not on evidence establishing absolute certainty of guilt. 297[50]
Absent any showing of arbitrariness on the part of the prosecutor or any other officer authorized to conduct preliminary investigation, courts as a rule
must defer to said officers finding and determination of probable cause, since the determination of the existence of probable cause is the function of the
prosecutor.298[51] The Court agrees with the Sandiganbayan that petitioner failed to establish that the preliminary investigation conducted by the
Ombudsman was tainted with irregularity or that its findings stated in the joint resolution dated April 4, 2001 are not supported by the facts, and that a
reinvestigation was necessary.
Certiorari will not lie to invalidate the Sandiganbayans resolution denying petitioners motion for reinvestigation since there is nothing to substantiate
petitioners claim that it gravely abused its discretion in ruling that there was no need to conduct a reinvestigation of the case. 299[52]
The ruling in Rolito Go vs. Court of Appeals300[53] that an accused shall not be deemed to have waived his right to ask for a preliminary investigation
after he had been arraigned over his objection and despite his insistence on the conduct of said investigation prior to trial on the merits does not apply
in the instant case because petitioner merely prayed for a reinvestigation on the ground of a newly-discovered evidence. Irrefragably, a preliminary
investigation had been conducted by the Ombudsman prior to the filing of the amended Information, and that petitioner had participated therein by filing
his counter-affidavit. Furthermore, the Sandiganbayan had already denied his motion for reinvestigation as well as his motion for reconsideration
thereon prior to his arraignment.301[54] In sum then, the petition is dismissed.
Re: G.R. No. 148468
As synthesized by the Court from the petition and the pleadings of the parties, the issues for resolution are: (1) Whether or not petitioner should first be
arraigned before hearings of his petition for bail may be conducted; (2) Whether petitioner may file a motion to quash the amended Information during
the pendency of his petition for bail; (3) Whether a joint hearing of the petition for bail of petitioner and those of the other accused in Criminal Case No.
26558 is mandatory; (4) Whether the People waived their right to adduce evidence in opposition to the petition for bail of petitioner and failed to adduce
strong evidence of guilt of petitioner for the crime charged; and (5) Whether petitioner was deprived of his right to due process in Criminal Case No.
26558 and should thus be released from detention via a writ of habeas corpus.
On the first issue, petitioner contends that the Sandiganbayan committed a grave abuse of its discretion amounting to excess or lack of jurisdiction
when it deferred the hearing of his petition for bail to July 10, 2001, arraigned him on said date and entered a plea of not guilty for him when he refused
to be arraigned. He insists that the Rules on Criminal Procedure, as amended, does not require that he be arraigned first prior to the conduct of bail
hearings since the latter can stand alone and must, of necessity, be heard immediately.302[55] Petitioner maintains that his arraignment before the bail
hearings are set is not necessary since he would not plead guilty to the offense charged, as is evident in his earlier statements insisting on his
innocence during the Senate investigation of the jueteng scandal and the preliminary investigation before the Ombudsman. 303[56] Neither would the
prosecution be prejudiced even if it would present all its evidence before his arraignment because, under the Revised Penal Code, a voluntary
confession of guilt is mitigating only if made prior to the presentation of evidence for the prosecution, 304[57] and petitioner admitted that he cannot
repudiate the evidence or proceedings taken during the bail hearings because Rule 114, Section 8 of the Revised Rules of Court expressly provides
that evidence present during bail hearings are automatically reproduced during the trial. 305[58] Petitioner likewise assures the prosecution that he is
willing to be arraigned prior to the posting of a bail bond should he be granted bail. 306[59]

294
295
296
297
298
299
300
301
302
303
304
305
Page 75 of 81

The People insist that arraignment is necessary before bail hearings may be commenced, because it is only upon arraignment that the issues are
joined. The People stress that it is only when an accused pleads not guilty may he file a petition for bail and if he pleads guilty to the charge, there
would be no more need for him to file said petition. Moreover, since it is during arraignment that the accused is first informed of the precise charge
against him, he must be arraigned prior to the bail hearings to prevent him from later assailing the validity of the bail hearings on the ground that he was
not properly informed of the charge against him, especially considering that, under Section 8, Rule 114 of the Revised Rules of Court, evidence
presented during such proceedings are considered automatically reproduced at the trial. 307[60] Likewise, the arraignment of accused prior to bail
hearings diminishes the possibility of an accuseds flight from the jurisdiction of the Sandiganbayan because trial in absentia may be had only if an
accused escapes after he has been arraigned.308[61] The People also contend that the conduct of bail hearings prior to arraignment would extend to an
accused the undeserved privilege of being appraised of the prosecutions evidence before he pleads guilty for purposes of penalty reduction. 309[62]
Although petitioner had already been arraigned on July 10, 2001 and a plea of not guilty had been entered by the Sandiganbayan on his behalf, thereby
rendering the issue as to whether an arraignment is necessary before the conduct of bail hearings in petitioners case moot, the Court takes this
opportunity to discuss the controlling precepts thereon pursuant to its symbolic function of educating the bench and bar.310[63]
The contention of petitioner is well-taken. The arraignment of an accused is not a prerequisite to the conduct of hearings on his petition for bail. A
person is allowed to petition for bail as soon as he is deprived of his liberty by virtue of his arrest or voluntary surrender. 311[64] An accused need not wait
for his arraignment before filing a petition for bail.
In Lavides vs. Court of Appeals, 312[65] this Court ruled on the issue of whether an accused must first be arraigned before he may be granted bail.
Lavides involved an accused charged with violation of Section 5(b) Republic Act No. 7610 (The Special Protection of Children Against Abuse,
Exploitation and Discrimination Act), an offense punishable by reclusion temporal in its medium period to reclusion perpetua. The accused therein
assailed, inter alia, the trial courts imposition of the condition that he should first be arraigned before he is allowed to post bail. We held therein that in
cases where it is authorized, bail should be granted before arraignment, otherwise the accused may be precluded from filing a motion to quash. 313[66]
However, the foregoing pronouncement should not be taken to mean that the hearing on a petition for bail should at all times precede arraignment,
because the rule is that a person deprived of his liberty by virtue of his arrest or voluntary surrender may apply for bail as soon as he is deprived of his
liberty, even before a complaint or information is filed against him. 314[67] The Courts pronouncement in Lavides should be understood in light of the fact
that the accused in said case filed a petition for bail as well as a motion to quash the informations filed against him. Hence, we explained therein that to
condition the grant of bail to an accused on his arraignment would be to place him in a position where he has to choose between (1) filing a motion to
quash and thus delay his release on bail because until his motion to quash can be resolved, his arraignment cannot be held, and (2) foregoing the filing
of a motion to quash so that he can be arraigned at once and thereafter be released on bail. This would undermine his constitutional right not to be put
on trial except upon a valid complaint or Information sufficient to charge him with a crime and his right to bail. 315[68]
It is therefore not necessary that an accused be first arraigned before the conduct of hearings on his application for bail. For when bail is a matter of
right, an accused may apply for and be granted bail even prior to arraignment. The ruling in Lavides also implies that an application for bail in a case
involving an offense punishable by reclusion perpetua to death may also be heard even before an accused is arraigned. Further, if the court finds in
such case that the accused is entitled to bail because the evidence against him is not strong, he may be granted provisional liberty even prior to
arraignment; for in such a situation, bail would be authorized under the circumstances. In fine, the Sandiganbayan committed a grave abuse of its
discretion amounting to excess of jurisdiction in ordering the arraignment of petitioner before proceeding with the hearing of his petition for bail.
With respect to the second issue of whether petitioner may file a motion to quash during the pendency of his petition for bail, petitioner maintains that a
motion to quash and a petition for bail are not inconsistent, and may proceed independently of each other. While he agrees with the prosecution that a
motion to quash may in some instances result in the termination of the criminal proceedings and in the release of the accused therein, thus rendering
the petition for bail moot and academic, he opines that such is not always the case; hence, an accused in detention cannot be forced to speculate on
the outcome of a motion to quash and decide whether or not to file a petition for bail or to withdraw one that has been filed. 316[69] He also insists that
the grant of a motion to quash does not automatically result in the discharge of an accused from detention nor render moot an application for bail under
Rule 117, Section 5 of the Revised Rules of Court.317[70]
The Court finds that no such inconsistency exists between an application of an accused for bail and his filing of a motion to quash. Bail is the security
given for the release of a person in the custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required

306
307
308
309
310
311
312
313
314
315
316
317
Page 76 of 81

under the conditions set forth under the Rules of Court. 318[71] Its purpose is to obtain the provisional liberty of a person charged with an offense until his
conviction while at the same time securing his appearance at the trial. 319[72] As stated earlier, a person may apply for bail from the moment that he is
deprived of his liberty by virtue of his arrest or voluntary surrender.320[73]
On the other hand, a motion to quash an Information is the mode by which an accused assails the validity of a criminal complaint or Information filed
against him for insufficiency on its face in point of law, or for defects which are apparent in the face of the Information. 321[74] An accused may file a
motion to quash the Information, as a general rule, before arraignment.322[75]
These two reliefs have objectives which are not necessarily antithetical to each other. Certainly, the right of an accused right to seek provisional liberty
when charged with an offense not punishable by death, reclusion perpetua or life imprisonment, or when charged with an offense punishable by such
penalties but after due hearing, evidence of his guilt is found not to be strong, does not preclude his right to assail the validity of the Information
charging him with such offense. It must be conceded, however, that if a motion to quash a criminal complaint or Information on the ground that the
same does not charge any offense is granted and the case is dismissed and the accused is ordered released, the petition for bail of an accused may
become moot and academic.
We now resolve the issue of whether or not it is mandatory that the hearings on the petitions for bail of petitioner and accused Jose Jinggoy Estrada in
Criminal Case No. 26558 and the trial of the said case as against former President Joseph E. Estrada be heard jointly.
Petitioner argues that the conduct of joint bail hearings would negate his right to have his petition for bail resolved in a summary proceeding since said
hearings might be converted into a full blown trial on the merits by the prosecution.323[76]
For their part, the People claim that joint bail hearings will save the court from having to hear the same witnesses and the parties from presenting the
same evidence where it would allow separate bail hearings for the accused who are charged as co-conspirators in the crime of plunder.324[77]
In issuing its June 1, 2001 Order directing all accused in Criminal Case No. 26558 to participate in the bail hearings, the Sandiganbayan explained that
the directive was made was in the interest of the speedy disposition of the case. It stated:
x x x The obvious fact is, if the rest of the accused other than the accused Serapio were to be excused from participating in the hearing on the motion
for bail of accused Serapio, under the pretext that the same does not concern them and that they will participate in any hearing where evidence is
presented by the prosecution only if and when they will already have filed their petitions for bail, or should they decide not to file any, that they will
participate only during the trial proper itself, then everybody will be faced with the daunting prospects of having to go through the process of introducing
the same witness and pieces of evidence two times, three times or four times, as many times as there are petitions for bail filed. Obviously, such
procedure is not conducive to the speedy termination of a case. Neither can such procedure be characterized as an orderly proceeding. 325[78]
There is no provision in the Revised Rules of Criminal Procedure or the Rules of Procedure of the Sandiganbayan governing the hearings of two or
more petitions for bail filed by different accused or that a petition for bail of an accused be heard simultaneously with the trial of the case against the
other accused. The matter of whether or not to conduct a joint hearing of two or more petitions for bail filed by two different accused or to conduct a
hearing of said petition jointly with the trial against another accused is addressed to the sound discretion of the trial court. Unless grave abuse of
discretion amounting to excess or lack of jurisdiction is shown, the Court will not interfere with the exercise by the Sandiganbayan of its discretion.
It may be underscored that in the exercise of its discretion, the Sandiganbayan must take into account not only the convenience of the State, including
the prosecution, but also that of the accused and the witnesses of both the prosecution and the accused and the right of accused to a speedy trial. The
Sandiganbayan must also consider the complexities of the cases and of the factual and legal issues involving petitioner and the other accused. After all,
if this Court may echo the observation of the United States Supreme Court, the State has a stake, with every citizen, in his being afforded our historic
individual protections, including those surrounding criminal prosecutions. About them, this Court dares not become careless or complacent when that
fashion has become rampant over the earth.326[79]
It must be borne in mind that in Ocampo vs. Bernabe,327[80] this Court held that in a petition for bail hearing, the court is to conduct only a summary
hearing, meaning such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of
the hearing which is merely to determine the weight of evidence for purposes of bail. The court does not try the merits or enter into any inquiry as to the
weight that ought to be given to the evidence against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be
offered therein. It may confine itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary thoroughness in the
examination and cross-examination of witnesses, and reducing to a reasonable minimum the amount of corroboration particularly on details that are not
essential to the purpose of the hearing.
A joint hearing of two separate petitions for bail by two accused will of course avoid duplication of time and effort of both the prosecution and the courts
and minimizes the prejudice to the accused, especially so if both movants for bail are charged of having conspired in the commission of the same crime
and the prosecution adduces essentially the same evident against them. However, in the cases at bar, the joinder of the hearings of the petition for bail
of petitioner with the trial of the case against former President Joseph E. Estrada is an entirely different matter. For, with the participation of the former
president in the hearing of petitioners petition for bail, the proceeding assumes a completely different dimension. The proceedings will no longer be

318
319
320
321
322
323
324
325
326
327
Page 77 of 81

summary. As against former President Joseph E. Estrada, the proceedings will be a full-blown trial which is antithetical to the nature of a bail hearing.
Moreover, following our ruling in Jose Estrada vs. Sandiganbayan, supra where we stated that Jose Jinggoy Estrada can only be charged with
conspiracy to commit the acts alleged in sub-paragraph (a) of the amended Information since it is not clear from the latter if the accused in subparagraphs (a) to (d) thereof conspired with each other to assist Joseph Estrada to amass ill-gotten wealth, we hold that petitioner can only be charged
with having conspired with the other co-accused named in sub-paragraph (a) by receiving or collecting, directly or indirectly, on several instances,
money x x x from illegal gambling, x x x in consideration of toleration or protection of illegal gambling. 328[81] Thus, with respect to petitioner, all that the
prosecution needs to adduce to prove that the evidence against him for the charge of plunder is strong are those related to the alleged receipt or
collection of money from illegal gambling as described in sub-paragraph (a) of the amended Information. With the joinder of the hearing of petitioners
petition for bail and the trial of the former President, the latter will have the right to cross-examine intensively and extensively the witnesses for the
prosecution in opposition to the petition for bail of petitioner. If petitioner will adduce evidence in support of his petition after the prosecution shall have
concluded its evidence, the former President may insist on cross-examining petitioner and his witnesses. The joinder of the hearing of petitioners bail
petition with the trial of former President Joseph E. Estrada will be prejudicial to petitioner as it will unduly delay the determination of the issue of the
right of petitioner to obtain provisional liberty and seek relief from this Court if his petition is denied by the respondent court. The indispensability of the
speedy resolution of an application for bail was succinctly explained by Cooley in his treatise Constitutional Limitations, thus:
For, if there were any mode short of confinement which would with reasonable certainty insure the attendance of the accused to answer the accusation,
it would not be justifiable to inflict upon him that indignity, when the effect is to subject him in a greater or lesser degree, to the punishment of a guilty
person, while as yet it is not determined that he has not committed any crime. 329[82]
While the Sandiganbayan, as the court trying Criminal Case No. 26558, is empowered to proceed with the trial of the case in the manner it determines
best conducive to orderly proceedings and speedy termination of the case, 330[83] the Court finds that it gravely abused its discretion in ordering that the
petition for bail of petitioner and the trial of former President Joseph E. Estrada be held jointly. It bears stressing that the Sandiganbayan itself
acknowledged in its May 4, 2001 Order the pre-eminent position and superiority of the rights of [petitioner] to have the matter of his provisional liberty
resolved without unnecessary delay,331[84] only to make a volte face and declare that after all the hearing of petition for bail of petitioner and Jose
Jinggoy Estrada and the trial as against former President Joseph E. Estrada should be held simultaneously. In ordering that petitioners petition for bail
to be heard jointly with the trial of the case against his co-accused former President Joseph E. Estrada, the Sandiganbayan in effect allowed further and
unnecessary delay in the resolution thereof to the prejudice of petitioner. In fine then, the Sandiganbayan committed a grave abuse of its discretion in
ordering a simultaneous hearing of petitioners petition for bail with the trial of the case against former President Joseph E. Estrada on its merits.
With respect to petitioners allegations that the prosecution tried to delay the bail hearings by filing dilatory motions, the People aver that it is petitioner
and his co-accused who caused the delay in the trial of Criminal Case No. 26558 by their filing of numerous manifestations and pleadings with the
Sandiganbayan.332[85] They assert that they filed the motion for joint bail hearing and motion for earlier arraignment around the original schedule for the
bail hearings which was on May 21-25, 2001.333[86]
They argue further that bail is not a matter of right in capital offenses. 334[87] In support thereof, they cite Article III, Sec 13 of the Constitution, which
states that
All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall before conviction be bailable
by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the
writ of habeas corpus is suspended. Excessive bail shall not be required.335[88]
The People also cited Rule 114, Secs. 7 and 4 of the Revised Rules of Court which provide:
Sec. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable.No person charged with a capital offense, or an
offense punishable by reclusion perpetua or life imprisonement, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the
criminal prosecution.
Sec. 4. Bail, a matter of right, exception.All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released on
recognizance as prescribed by law or this Rule x x x (b) and before conviction by the Regional Trial Court of an offense not punishable by death,
reclusion perpetua or life imprisonment.336[89]
Irrefragably, a person charged with a capital offense is not absolutely denied the opportunity to obtain provisional liberty on bail pending the judgment of
his case. However, as to such person, bail is not a matter of right but is discretionary upon the court. 337[90] Had the rule been otherwise, the Rules
would not have provided for an application for bail by a person charged with a capital offense under Rule 114, Section 8 which states:
Sec. 8. Burden of proof in bail application. At the hearing of an application for bail filed by a person who is in custody for the commission of an offense
punishable by death, reclusion perpetua, or life imprisonment, the prosecution has the burden of showing that the evidence of guilt is strong. The

328
329
330
331
332
333
334
335
336
337
Page 78 of 81

evidence presented during the bail hearing shall be considered automatically reproduced at the trial but, upon motion of either party, the court may
recall any witness for additional examination unless the latter is dead, outside the Philippines, or otherwise unable to testify.338[91]
Under the foregoing provision, there must be a showing that the evidence of guilt against a person charged with a capital offense is not strong for the
court to grant him bail. Thus, upon an application for bail by the person charged with a capital offense, a hearing thereon must be conducted, where the
prosecution must be accorded an opportunity to discharge its burden of proving that the evidence of guilt against an accused is strong. 339[92] The
prosecution shall be accorded the opportunity to present all the evidence it may deems necessary for this purpose. 340[93] When it is satisfactorily
demonstrated that the evidence of guilt is strong, it is the courts duty to deny the application for bail. However, when the evidence of guilt is not strong,
bail becomes a matter of right.341[94]
In this case, petitioner is not entitled to bail as a matter of right at this stage of the proceedings. Petitioners claim that the prosecution had refused to
present evidence to prove his guilt for purposes of his bail application and that the Sandiganbayan has refused to grant a hearing thereon is not borne
by the records. The prosecution did not waive, expressly or even impliedly, its right to adduce evidence in opposition to the petition for bail of petitioner.
It must be noted that the Sandiganbayan had already scheduled the hearing dates for petitioners application for bail but the same were reset due to
pending incidents raised in several motions filed by the parties, which incidents had to be resolved by the court prior to the bail hearings. The bail
hearing was eventually scheduled by the Sandiganbayan on July 10, 2001 but the hearing did not push through due to the filing of this petition on June
29, 2001.
The delay in the conduct of hearings on petitioners application for bail is therefore not imputable solely to the Sandiganbayan or to the prosecution.
Petitioner is also partly to blame therefor, as is evident from the following list of motions filed by him and by the prosecution:
Motions filed by petitioner:
Urgent Omnibus Motion, dated April 6, 2001, for (1) leave to file motion for reconsideration/reinvestigation and to direct ombudsman to conduct
reinvestigation; (2) conduct a determination of probable cause as would suggest the issuance of house arrest; (3) hold in abeyance the issuance of
warrant of arrest and other proceedings pending determination of probable cause;
Motion for Early Resolution, dated May 24, 2001;
Urgent Motion to Hold in Abeyance Implementation or Service of Warrant of Arrest for Immediate Grant of bail or For Release on Recognizance,
dated April 25, 2001;
Urgent Motion to allow Accused Serapio to Vote at Obando, Bulacan, dated May 11, 2001;
Urgent Motion for Reconsideration, dated May 22, 2001, praying for Resolution of May 18, 2001 be set aside and bail hearings be set at the
earliest possible time;
Urgent Motion for Immediate Release on Bail or Recognizance, dated May 27, 2001;
Motion for Reconsideration of denial of Urgent Omnibus Motion, dated June 13, 2001, praying that he be allowed to file a Motion for
Reinvestigation; and
Motion to Quash, dated June 26, 2001.342[95]
Motions filed by the prosecution:
Motion for Earlier Arraignment, dated May 8, 2001;343[96]
Motion for Joint Bail Hearings of Accused Joseph Estrada, Jose Jinggoy Estrada and Edward Serapio, dated May 8, 2001; 344[97]
Opposition to the Urgent Motion for Reconsideration and Omnibus Motion to Adjust Earlier Arraignment, dated May 25, 2001; 345[98] and
Omnibus Motion for Examination, Testimony and Transcription in Filipino, dated June 19, 2001.346[99]
The other accused in Criminal Case No. 26558 also contributed to the aforesaid delay by their filing of the following motions:
Motion to Quash or Suspend, dated April 24, 2001, filed by Jinggoy Estrada, assailing the constitutionality of R.A. No. 7080 and praying that the
Amended Information be quashed;
Very Urgent Omnibus Motion, dated April 30, 2001, filed by Jinggoy Estrada, praying that he be (1) excluded from the Amended Information for
lack of probable cause; (2) released from custody; or in the alternative, (3) be allowed to post bail;
Urgent Ex-Parte Motion to Place on House Arrest, dated April 25, 2001, filed by Joseph and Jinggoy Estrada, praying that they be placed on
house arrest during the pendency of the case;
Position Paper [re: House Arrest], dated May 2, 2001, filed by Joseph and Jinggoy Estrada;
Supplemental Position Paper [re: House Arrest], dated May 2, 2001, filed by Joseph and Jinggoy Estrada;
Omnibus Motion, dated May 7, 2001, filed by Joseph Estrada, praying by reinvestigation of the case by the Ombudsman or the outright dismissal
of the case;
Urgent Ex-Parte Motion for Extension, dated May 2, 2001, filed by Jinggoy Estrada, requesting for five (5) within which to respond to the
Opposition to Motion to Quash in view of the holidays and election-related distractions;
Opposition to Urgent Motion for Earlier Arraignment, dated May 10, 2001, filed by Joseph Estrada;
Omnibus Manifestation on voting and custodial arrangement, dated May 11, 2001, filed by Joseph and Jinggoy Estrada, praying that they be
placed on house arrest;

338
339
340
341
342
343
344
345
346
Page 79 of 81

Manifestation regarding house arrest, dated May 6, 2001, filed by Joseph and Jinggoy Estrada;
Summation regarding house arrest, dated May 23, 2001, filed by Joseph and Jinggoy Estrada;
Urgent Manifestation & Motion, dated May 6, 2001 filed by Jinggoy Estrada;
Manifestation, dated May 28, 2001, filed by Joseph and Jinggoy Estrada, praying that they be allowed to be confined in Tanay;
Motion to charge as Accused Luis Chavit Singson, filed by Joseph Estrada;
Omnibus Motion, dated June 11, 2001, filed by Joseph and Jinggoy Estrada, seeking reconsideration of denial of requests for house arrest, for
detention in Tanay or Camp Crame; motion for inhibition of Justice Badoy;
Urgent Motion to Allow Accused to Clear His Desk as Mayor of San Juan, Metro Manila, dated June 28, 2001, filed by Jinggoy Estrada;
Motion for Reconsideration, dated June 9, 2001, filed by Joseph and Jinggoy Estrada, praying that the resolution compelling them to be present at
petitioner Serapios hearing for bail be reconsidered;
Motion to Quash, dated June 7, 2001, filed by Joseph Estrada;
Still Another Manifestation, dated June 14, 2001, filed by Joseph and Jinggoy Estrada stating that Bishop Teodoro Bacani favors their house
arrest;
Manifestation, dated June 15, 2001, filed by Joseph and Jinggoy Estrada, waiving their right to be present at the June 18 and 21, 2001 bail
hearings and reserving their right to trial with assessors;
Omnibus Motion for Instructions: 30-Day House Arrest; Production, Inspection and Copying of Documents; and Possible Trial with Assessors,
dated June 19, 2001, filed by Joseph and Jinggoy Estrada;
Urgent Motion for Additional Time to Wind Up Affairs, dated June 20, 2001, filed by Jinggoy Estrada;
Manifestation, dated June 22, 2001, filed by Jinggoy Estrada, asking for free dates for parties, claiming that denial of bail is cruel and inhuman,
reiterating request for gag order of prosecution witnesses, availing of production, inspection and copying of documents, requesting for status of alias
case; and
Compliance, dated June 25, 2001, filed by Jinggoy Estrada, requesting for permission to attend some municipal affairs in San Juan, Metro
Manila.347[100]
Furthermore, the Court has previously ruled that even in cases where the prosecution refuses to adduce evidence in opposition to an application for bail
by an accused charged with a capital offense, the trial court is still under duty to conduct a hearing on said application. 348[101] The rationale for such
requirement was explained in Narciso vs. Sta. Romana-Cruz (supra), citing Basco vs. Rapatalo:349[102]
When the grant of bail is discretionary, the prosecution has the burden of showing that the evidence of guilt against the accused is strong. However, the
determination of whether or not the evidence of guilt is strong, being a matter of judicial discretion, remains with the judge. This discretion by the very
nature of things, may rightly be exercised only after the evidence is submitted to the court at the hearing. Since the discretion is directed to the weight of
the evidence and since evidence cannot properly be weighed if not duly exhibited or produced before the court, it is obvious that a proper exercise of
judicial discretion requires that the evidence of guilt be submitted to the court, the petitioner having the right of cross-examination and to introduce his
own evidence in rebuttal.350[103]
Accordingly, petitioner cannot be released from detention until the Sandiganbayan conducts a hearing of his application for bail and resolve the same in
his favor. Even then, there must first be a finding that the evidence against petitioner is not strong before he may be granted bail.
Anent the issue of the propriety of the issuance of a writ of habeas corpus for petitioner, he contends that he is entitled to the issuance of said writ
because the State, through the prosecutions refusal to present evidence and by the Sandiganbayans refusal to grant a bail hearing, has failed to
discharge its burden of proving that as against him, evidence of guilt for the capital offense of plunder is strong. Petitioner contends that the prosecution
launched a seemingly endless barrage of obstructive and dilatory moves to prevent the conduct of bail hearings. Specifically, the prosecution moved for
petitioners arraignment before the commencement of bail hearings and insisted on joint bail hearings for petitioner, Joseph Estrada and Jinggoy
Estrada despite the fact that it was only petitioner who asked for a bail hearing; manifested that it would present its evidence as if it is the presentation
of the evidence in chief, meaning that the bail hearings would be concluded only after the prosecution presented its entire case upon the accused; and
argued that petitioners motion to quash and his petition for bail are inconsistent, and therefore, petitioner should choose to pursue only one of these two
remedies.351[104] He further claims that the Sandiganbayan, through its questioned orders and resolutions postponing the bail hearings effectively
denied him of his right to bail and to due process of law.352[105]
Petitioner also maintains that the issuance by the Sandiganbayan of new orders canceling the bail hearings which it had earlier set did not render moot
and academic the petition for issuance of a writ of habeas corpus, since said orders have resulted in a continuing deprivation of petitioners right to
bail.353[106] He argues further that the fact that he was arrested and is detained pursuant to valid process does not by itself negate the efficacy of the
remedy of habeas corpus. In support of his contention, petitioner cites Moncupa vs. Enrile,354[107] where the Court held that habeas corpus extends to
instances where the detention, while valid from its inception, has later become arbitrary.355[108]
However, the People insist that habeas corpus is not proper because petitioner was arrested pursuant to the amended information which was earlier
filed in court,356[109] the warrant of arrest issuant pursuant thereto was valid, and petitioner voluntarily surrendered to the authorities. 357[110]

347
348
349
350
351
352
353
354
355
Page 80 of 81

As a general rule, the writ of habeas corpus will not issue where the person alleged to be restrained of his liberty in custody of an officer under a
process issued by the court which jurisdiction to do so. 358[111] In exceptional circumstances, habeas corpus may be granted by the courts even when
the person concerned is detained pursuant to a valid arrest or his voluntary surrender, for this writ of liberty is recognized as the fundamental instrument
for safeguarding individual freedom against arbitrary and lawless state action due to its ability to cut through barriers of form and procedural mazes. 359
[112] Thus, in previous cases, we issued the writ where the deprivation of liberty, while initially valid under the law, had later become invalid, 360[113] and
even though the persons praying for its issuance were not completely deprived of their liberty.361[114]
The Court finds no basis for the issuance of a writ of habeas corpus in favor of petitioner. The general rule that habeas corpus does not lie where the
person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court which had jurisdiction to issue the
same362[115] applies, because petitioner is under detention pursuant to the order of arrest issued by the Sandiganbayan on April 25, 2001 after the filing
by the Ombudsman of the amended information for plunder against petitioner and his co-accused. Petitioner had in fact voluntarily surrendered himself
to the authorities on April 25, 2001 upon learning that a warrant for his arrest had been issued.
The ruling in Moncupa vs. Enrile363[116] that habeas corpus will lie where the deprivation of liberty which was initially valid has become arbitrary in view
of subsequent developments finds no application in the present case because the hearing on petitioners application for bail has yet to commence. As
stated earlier, the delay in the hearing of petitioners petition for bail cannot be pinned solely on the Sandiganbayan or on the prosecution for that matter.
Petitioner himself is partly to be blamed. Moreover, a petition for habeas corpus is not the appropriate remedy for asserting ones right to bail. 364[117] It
cannot be availed of where accused is entitled to bail not as a matter of right but on the discretion of the court and the latter has not abused such
discretion in refusing to grant bail,365[118] or has not even exercised said discretion. The proper recourse is to file an application for bail with the court
where the criminal case is pending and to allow hearings thereon to proceed.
The issuance of a writ of habeas corpus would not only be unjustified but would also preempt the Sandiganbayans resolution of the pending application
for bail of petitioner. The recourse of petitioner is to forthwith proceed with the hearing on his application for bail.
IN THE LIGHT OF ALL THE FOREGOING, judgment is hereby rendered as follows:
1.In G.R. No. 148769 and G.R. No. 149116, the petitions are DISMISSED. The resolutions of respondent Sandiganbayan subject of said petitions are
AFFIRMED; and
2.
In G.R. No. 148468, the petition is PARTIALLY GRANTED. The resolution of respondent Sandiganbayan, Annex L of the petition, ordering a
joint hearing of petitioners petition for bail and the trial of Criminal Case No. 26558 as against former President Joseph E. Estrada is SET ASIDE; the
arraignment of petitioner on July 10, 2001 is also SET ASIDE.
No costs.
SO ORDERED.

356
357
358
359
360
361
362
363
364
365
Page 81 of 81