G.R. No.

192591 July 30, 2012 LAWS WHEN HE ALONE AMONG THE

NUMEROUS PERSONS WHO
EFREN L. ALVAREZ, Petitioner, APPROVED AND IMPLEMENTED THE
vs. UNSOLICITED PROPOSAL WAS
PEOPLE OF THE PHILIPPINES, Respondent. CHARGED, TRIED AND CONVICTED.

RESOLUTION IV

VILLARAMA, JR., J.: THE HONORABLE COURT FAILED TO

CONSIDER THAT THE
This resolves the motion for reconsideration of our Decision SANDIGANBAYAN CONVICTED
dated June 29, 2011 affirming the conviction of petitioner for PETITIONER DESPITE THE CLEAR
violation of Section 3 (e) of R.A. No. 3019 (Anti-Graft and FACT THAT THE PROSECUTION
Corrupt Practices Act). Petitioner sets forth the following FAILED TO ESTABLISH HIS GUILT
grounds in his motion: BEYOND REASONABLE DOUBT, AS
SHOWN BY THE FOLLOWING
CIRCUMSTANCES:
I
(A) THE PROSECUTION FAILED TO
THE HONORABLE COURT FAILED TO
ESTABLISH ALLEGED GROSS
CONSIDER THAT THE
INEXCUSABLE NEGLIGENCE,
SANDIGANBAYAN COMMITTED
EVIDENT BAD FAITH OR MANIFEST
MANIFEST ERROR, VIOLATED
PARTIALITY OF PETITIONER
PETITIONER'S CONSTITUTIONAL
RIGHT TO THE PRESUMPTION OF
INNOCENCE, AND BLATANTLY (B) THE PROSECUTION FAILED TO
DISREGARDED THE PRINCIPLE OF ESTABLISH THE ALLEGED DAMAGE
REGULARITY IN THE PERFORMANCE OR INJURY PURPORTEDLY SUFFERED
OF OFFICIAL FUNCTIONS WHEN IT BY THE GOVERNMENT
CONVICTED MAYOR ALVAREZ OF
VIOLATING R.A. 3019 ON THE BASIS V
OF HIS FAILURE TO COMPLY WITH
THE REQUIREMENTS OF R.A. 7718 ON THE HONORABLE COURT FAILED TO
"SOLICITED PROPOSALS" WHEN IT CONSIDER THE ESTABLISHED FACTS
WAS CLEAR THAT THE SHOWING THAT PETITIONER:
CONSTRUCTION OF THE WAG WAG
SHOPPING MALL WAS AN (A) NEVER ACTED WITH "GROSS
UNSOLICITED AND UNCHALLENGED INEXCUSABLE NEGLIGENCE"
PROPOSAL. AND/OR "MANIFEST PARTIALITY";

II (B) NEVER GAVE ANY

"UNWARRANTED BENEFIT",
THE HONORABLE COURT FAILED TO "ADVANTAGE" OR "PREFERENCE" TO
CONSIDER THE SERIOUS AND API.
MANIFEST ERROR COMMITTED BY
THE SANDIGANBAYAN WHEN THE VI
LATTER DISREGARDED MAYOR
ALVAREZ SUBSTANTIAL THE HONORABLE COURT FAILED TO
COMPLIANCE WITH THE CONSIDER THAT PETITIONER IS AN
REQUIREMENTS OF R.A. 7718. OUTSTANDING LOCAL EXECUTIVE
WITH UNIMPEACHABLE CHARACTER
III AND UNQUESTIONED
ACCOMPLISHMENT, PETITIONER IS
THE HONORABLE COURT FAILED TO NOT THE KIND OF INDIVIDUAL WHO
CONSIDER THAT THE WOULD ENTER INTO A CONTRACT
SANDIGANBAYAN DISREGARDED THAT WOULD PREJUDICE THE
THE RIGHT OF MAYOR ALVAREZ TO GOVERNMENT AND HIS
THE EQUAL PROTECTION OF THE CONSTITUENTS.1
Petitioner contends that bad faith, manifest partiality and
gross negligence were not proven by the respondent. He
stresses that there was substantial compliance with the
requirements of R.A. No. 7718, and while it is true that
petitioner may have deviated from some of the procedures
outlined in the said law, the essential purpose of the law
that a project proposal be properly evaluated and that parties
other than the opponent be given opportunity to present their
proposal was accomplished. The Sandiganbayan therefore
seriously erred when it immediately concluded that all
actions of petitioner were illegal and irregular. Petitioner
maintains such actions are presumed to be regular and the
burden of proving otherwise rests on the respondent.
Because all the transactions were done by him with the
authority of the Sangguniang Bayan, petitioner argues that
there can be no dispute that he endeavored in good faith to
comply with the requirements of R.A No. 7718. Moreover,
petitioner asserts that the non-inclusion of all the other
members of the Sangguniang Bayan denied him the equal
protection of the laws.
In compliance with the directive of this Court, the Solicitor
General filed his Comment asserting that petitioner was
correctly convicted of Violation of Section 3(e) of R.A. No.
3019. The Solicitor General stressed that the findings of the
Sandiganbayan and this Court that the requirements of the
Build-Operate-Transfer (BOT) law and its implementing
rules have not been followed in the bidding and award of the
contract to Australian-Professional, Inc. (API) were based on
the documents of the project which have not been questioned
by petitioner. Thus, despite petitioners claim of substantial
compliance and APIs proposal being "complete," it is
undisputed that it did not include the required company
profile of the contractor and that the publication of the
invitation for comparative proposals, as found by this Court,
was defective. These findings supported by the evidence on
record were shown to have resulted in the failure to assess
the actual experience and financial capacity of API to of rival
proposals. Finally, the fact that the Sangguniang Bayan
members were not included in the charge does not negate the
guilt of petitioner who had the power and discretion over the
implementation of the Wag-wag Shopping Mall project and
not simply to execute the resolutions passed by the
Sangguniang Bayan approving the contract award to API.
The facts established in the decision of the Sandiganbayan
bear great significance on petitioners role in the bidding and
contract award to API, which also clearly showed that
petitioner as local chief executive was totally remiss in his
duties and functions.
We find no cogent reason for reversal or modification of our
decision which exhaustively discussed the afore-cited issues
being raised anew by the petitioner.
Notably, petitioners invocation of good faith deserves scant
consideration in the light of established facts, as found by the
Sandiganbayan and upheld by this Court, clearly showing
that he acted with manifest partiality and gross inexcusable
negligence in awarding the BOT project to an unlicensed and
financially unqualified contractor.
It bears stressing that the offense defined under Section 3 (e)
of R.A. No. 3019 may be committed even if bad faith is not
attendant.2 Thus, even assuming that petitioner did not act in
bad faith, his negligence under the circumstances was not
only gross but also inexcusable.3 Submission of documents
such as contractors license and company profile are
minimum legal requirements to enable the government to
properly evaluate the qualifications of a BOT proponent. It
was unthinkable for a local government official, especially
one with several citations and awards as outstanding local
executive, to have allowed API to submit a BOT proposal
and later award it the contract despite lack of a contractors
license and proof of its financial and technical capabilities,
relying merely on a piece of information from a news item
about said contractors ongoing mall construction project in
another municipality and verbal representations of its
president.
In his testimony at the trial, petitioner admitted that after the
awarding of the contract to API, the latter did not comply
with the posting of notices and submission of requirements.
He simply cited the reason given by API for such non-
compliance, i.e., that the BOT law does not provide for such
requirements. This clearly shows petitioners indifference
and utter disregard of the strict requirements of the BOT law
and implementing rules, which as local chief executive, he is
mandated to follow and uphold. Petitioners reliance on the
representations and statements of the contractor on the
compliance with legal requirements is an unacceptable
excuse for his gross negligence in the performance of his
official duties. He must now face the consequences of his
decisions and acts relative to the failed project in violation of
the law.
The substantial compliance rule is defined as "compliance
with the essential requirements, whether of a contract or of a
statute."4 Contrary to petitioners submission, his gross
negligence in approving APIs proposal notwithstanding its
failure to comply with the minimum legal requirements
prevented the Sangguniang Bayan from properly evaluating
said proponents financial and technical capabilities to
undertake the BOT project. Such gross negligence was
evident from the taking of shortcuts in the bidding process by
shortening the period for submission of comparative
proposals, non-observance of Investment Coordinating
Committee of the National Economic Development
Authority approval for the Wag-wag Shopping Mall Project,
publication in a newspaper which is not of general
circulation, and accepting an incomplete proposal from API.
These forestalled a fair opportunity for other interested
parties to submit comparative proposals. Petitioners
argument that there was substantial compliance with the law
thus fails. The essential requirements of the BOT law were
not at all satisfied as in fact they were sidestepped to favor
the lone bidder, API.
Petitioner nonetheless reiterates his position that he cannot
be held liable for such acts in violation of the law since there
was "substantial basis" for the Municipal Government of
Muoz to believe that API had the expertise and capability to
implement the proposed Wag-wag Shopping Mall project.
He points out the time they were negotiating with API,
Australian-Professionals Realty, Inc. which is the same entity
as API, was involved in two major BOT projects (P150
million project in Lemery, Batangas and P300 million
construction project in Calamba, Laguna).
We disagree.
As extensively discussed in our Decision, petitioner was
grossly negligent when it glossed over APIs failure to
submit specified documents showing that it was duly
licensed or accredited Filipino contractor, and has the
requisite financial capacity and technical expertise or
experience, in addition to the complete proposal which
includes a feasibility study and company profile. These
requirements imposed by the BOT law and implementing
rules were intended to serve as competent proof of legal
qualifications and therefore constitute the "substantial basis"
for evaluating a project proposal. Petitioners theory would
allow substitution of less reliable information as basis for the
local government units determination of a contractors
financial capability and legal qualifications in utter disregard
of what the law says and consequences prejudicial to the
government, which is precisely what the law seeks to
prevent.
To reiterate, we quote from the Decision the purpose of the
bidding requirements:
We have held that the Implementing Rules provide for the
unyielding standards the PBAC should apply to determine
the financial capability of a bidder for pre-qualification
purposes: (i) proof of the ability of the project proponent
and/or the consortium to provide a minimum amount of
equity to the project and (ii) a letter testimonial from
reputable banks attesting that the project proponent and/or
members of the consortium are banking with them, that they
are in good financial standing, and that they have adequate
resources. The evident intent of these standards is to protect
the integrity and insure the viability of the project by seeing
to it that the proponent has the financial capability to carry it
out. Unfortunately, none of these requirements was
submitted by API during the pre-qualification
stage.5 (Emphasis supplied.)
Petitioner further points out that our Decision failed to
consider that the Sandiganbayan disregarded his right to the
equal protection of the laws when he alone among the
numerous persons who approved APIs proposal and
implemented the project was charged, tried and convicted.
It bears stressing that the manner in which the prosecution of
the case is handled is within the sound discretion of the
prosecutor, and the non-inclusion of other guilty persons is
irrelevant to the case against the accused.6 But more
important, petitioner failed to demonstrate a discriminatory
purpose in prosecuting him alone despite the finding of the
Sandiganbayan that the Sangguniang Bayan "has conspired if
not abetted all the actions of the Accused in all his dealings
with API to the damage and prejudice of the municipality"
and said courts declaration that "this is one case where the
Ombudsman should have included the entire Municipal
Council of Muoz in the information."7
As this Court explained in Santos v. People8:
The prosecution of one guilty person while others equally
guilty are not prosecuted, however, is not, by itself, a denial
of the equal protection of the laws. Where the official action
purports to be in conformity to the statutory classification, an
erroneous or mistaken performance of the statutory duty,
although a violation of the statute, is not without more a
denial of the equal protection of the laws. The unlawful
administration by officers of a statute fair on its face,
resulting in its unequal application to those who are entitled
to be treated alike, is not a denial of equal protection unless
there is shown to be present in it an element of intentional or
purposeful discrimination. This may appear on the face of
the action taken with respect to a particular class or person,
or it may only be shown by extrinsic evidence showing a
discriminatory design over another not to be inferred from
the action itself. But a discriminatory purpose is not
presumed, there must be a showing of "clear and intentional
discrimination." Appellant has failed to show that, in
charging appellant in court, that there was a "clear and
intentional discrimination" on the part of the prosecuting
officials.
The discretion of who to prosecute depends on the
prosecutions sound assessment whether the evidence before
it can justify a reasonable belief that a person has committed
an offense. The presumption is that the prosecuting officers
regularly performed their duties, and this presumption can be
overcome only by proof to the contrary, not by mere
speculation. Indeed, appellant has not presented any
evidence to overcome this presumption. The mere allegation
that appellant, a Cebuana, was charged with the commission
of a crime, while a Zamboanguea, the guilty party in
appellants eyes, was not, is insufficient to support a
conclusion that the prosecution officers denied appellant
equal protection of the laws.1wphi1
There is also common sense practicality in sustaining
appellants prosecution.
While all persons accused of crime are to be treated on a
basis of equality before the law, it does not follow that they
are to be protected in the commission of crime. It would be
unconscionable, for instance, to excuse a defendant guilty of
murder because others have murdered with impunity. The
remedy for unequal enforcement of the law in such instances
does not lie in the exoneration of the guilty at the expense of
society x x x. Protection of the law will be extended to all
persons equally in the pursuit of their lawful occupations, but
no person has the right to demand protection of the law in the
commission of a crime.

Likewise, if the failure of prosecutors to enforce the criminal

laws as to some persons should be converted into a defense
for others charged with crime, the result would be that the
trial of the district attorney for nonfeasance would become
an issue in the trial of many persons charged with heinous
crimes and the enforcement of law would suffer a complete
breakdown.9 (Emphases supplied.)

Finally, the Court need not delve into the merits of

petitioners assertion that as a local executive official well-
recognized for his achievements and public service, he is not
the kind of person who would enter into a contract that
would prejudice the government. A non-sequitur, it has no
bearing at all to the factual and legal issues in this case.

WHEREFORE, the present motion for reconsideration is

hereby DENIED with FINALITY.

No further pleadings shall be entertained in this case.

Let entry of judgment be made in due course.

SO ORDERED.

G.R. No. 194945 July 30, 2012

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
ALEX WATAMAMA y ESIL, Accused-Appellant.

DESICION
VILLARAMA, JR. J.:
On appeal is the March 5, 2010 Decision 1 of the Court of
Appeals (CA) in CA-G.R. CR HC No. 03295, affirming the
Decision2 of the Regional Trial Couti (RTC), Branch 103, of
Quezon City, finding appellant Alex Watamama y Esil guilty
of violating Section 5 of Republic Act (R.A.) No. 9165. 3
The prosecution's version of the facts is as follows:
At around 10 oclock in the morning of September 25, 2005,
an informant reported to SPO2 Dante Nagera in the Quezon
City Anti-Drug Action Center, PNP Central Police District,
Quezon City Hall Compound, that a certain "Alex" was
selling drugs in Barangay Payatas, Quezon City. SPO2
Nagera relayed the information to his superior P/Supt.
Gerardo Ratuita who then formed a team consisting of SPO2
Nagera, PO3 Leonardo Ramos, PO1 Teresita Reyes, PO1
Alexander Jimenez, and PO1 Peggy Lynne Vargas to conduct
a buy-bust operation. PO1 Vargas was designated as the
poseur buyer and was given two P100 bills which she
marked with her initials "PV".4
At 12 noon of the same day, the buy-bust team arrived at
Area A, Payatas, Quezon City. The informant accompanied
PO1 Vargas to a house at No. 14 Rosal Street. Upon seeing
appellant, the informant introduced PO1 Vargas to appellant
as a shabu user. PO1 Vargas asked to buy P200 worth of
shabu from appellant. When asked for payment, PO1 Vargas
promptly handed appellant the two marked bills. Appellant
pocketed the money then took out a plastic sachet containing
0.18 grams of shabu and gave it to PO1 Vargas. PO1 Vargas
inspected the contents of the plastic sachet, then gave the
pre-arranged signal that the transaction was consummated.
Immediately, the other members of the buy-bust team
surfaced and arrested appellant. The two marked bills were
recovered when SPO2 Nagera ordered appellant to empty his
pockets. Appellant was thereafter brought to the police
station.5
At the police station, PO1 Vargas marked the confiscated
shabu and turned it over to the station investigator Alex A.
Jimenez. Jimenez prepared an inventory receipt which
P/Supt. Ratuita signed. Thereafter, PO2 Ortiz brought the
plastic sachet to the PNP Crime Laboratory for qualitative
examination.6 Forensic chemist Leonard Jabonillo performed
the examination and found that the contents of the heat-
sealed transparent plastic sachet with marking PV-09-25-05,
weighed 0.18 grams and tested positive for
methylampethamine hydrochloride or shabu.7
On the other hand, appellant claimed that three men in
civilian attire with handguns tucked at their waist suddenly
barged in his house and arrested him. He was not shown any
arrest warrant and nothing was found on him when the police
frisked him at the police station. He added that PO1 Jimenez
told him that if he wanted to be released he must reveal the
identity of a big-time shabu supplier. He denied knowing any
big-time shabu supplier and also denied selling shabu. He
was then charged with illegal sale of shabu.8
The RTC rendered a decision convicting appellant of illegal
sale of 0.18 grams of shabu and sentenced him to suffer the
penalty of life imprisonment and to pay a fine of P500,000.
On appeal to the CA, appellant argued that the arresting
police officers failed to comply strictly with Section 21(1) of
R.A. No. 9165, since there was no proof that they conducted
an inventory of the confiscated items, or even marked the
same in his presence, or the presence of his representative or
counsel, or a representative from the media and the
Department of Justice, or any elected official.
As aforesaid, the CA denied the appeal and affirmed the RTC
Decision.1wphi1 The CA found that the prosecution was
able to establish every link in the chain of custody of the
shabu from the moment of seizure to receipt for examination
and safekeeping in the PNP Crime Laboratory to
safekeeping for presentation in court. The CA further held
that the marking and inventory of the shabu done at the
police station was not fatal to the prosecutions case. Section
21 (a) of the Implementing Rules and Regulations of
Republic Act No. 9165 provides that in case of warrantless
seizures, the marking, inventory, and photograph may be
conducted at the nearest office of the apprehending team as
long as the integrity and evidentiary value of the seized items
are properly preserved. The CA noted that PO1 Vargas
adequately explained why the marking was not made at the
place of confiscation since there was a crowd of people
forming when appellant was arrested. Also, a photograph
was taken but the digital camera was lost. The CA also held
that the defect in the pre-operation coordination sheet with
PDEA would not affect the entrapment operation. The CA
explained that Section 86 of R.A. No. 9165 is explicit only in
saying that the PDEA shall be the "lead agency" in
investigations and prosecutions of drug-related cases. It held
that Section 86 is more of an administrative provision.
Unsatisfied with the CA decision, appellant filed a notice of
appeal before this Court, essentially questioning the
noncompliance by the police with the procedure for the
custody and control of seized prohibited drugs under Section
21 of R.A. No. 9165. He claims that the chain of custody was
not established by the prosecution and prays for his acquittal.
We agree with appellant.
In all prosecutions for the violation of the Comprehensive
Dangerous Drugs Act of 2002, the existence of the prohibited
drug has to be proved.9
The chain of custody rule requires that testimony be
presented about every link in the chain, from the moment the
item was seized up to the time it is offered in evidence. To
this end, the prosecution must ensure that the substance
presented in court is the same substance seized from the
accused.
While this Court recognizes substantial adherence to the
requirements of R.A. No. 9165 and its implementing rules
and regulations, not perfect adherence, is what is demanded
of police officers attending to drugs cases,10still, such officers
must present justifiable reason for their imperfect conduct
and show that the integrity and evidentiary value of the
seized items had been preserved. Here, however, they failed
to meet these conditions.
to the prosecutions case. Since the failure to establish every
link in the chain of custody of the drug compromised its
identity and integrity, which is the corpus delicti of the
crimes charged against appellant, his acquittal is therefore in
order.
WHEREFORE, the appeal is GRANTED. The March 5,
2010 Decision of the Court of Appeals in CA-G.R. CR-HC
No. 03295 is REVERSED and SET ASIDE. Accused-
appellant Alex Watamama y Esil is hereby ACQUITTED on
the ground of reasonable doubt.

The prosecution failed to show how the seized evidence The Director, Bureau of Corrections, Muntinlupa City, is
changed hands from the time PO1 Vargas turned it over to hereby ordered to release the person of accused-appellant
the investigator up to the time they were presented in court ALEX WATAMAMA y ESIL from custody unless he is
as evidence. The prosecution did not adduce evidence on detained for some other lawful cause/s.
how the evidence was handled or stored before its
presentation at the trial. It is not enough to rely merely on the The Director, Bureau of Corrections, is hereby further
testimony of PO1 Vargas who stated that she turned the ordered to REPORT to this Court his compliance herewith
seized item over to the investigator who then prepared the within five (5) days from doing so.
letter of request for examination. There was no evidence on
how PO2 Ortiz came into possession of the shabu and how With costs de oficio.
he delivered the seized item for examination to the PNP
Crime Laboratory. Neither was there any evidence how it
SO ORDERED.
was secured from tampering. Instructive is the case of People
v. Kamad,11where the Court enumerated the different links
that the prosecution must endeavor to establish with respect
to the chain of custody in a buy-bust operation: first, the
seizure and marking of the illegal drug recovered from the
accused by the apprehending officer; second, the turn over of
the illegal drug seized by the apprehending officer to the
investigating officer; third, the turn over by the investigating
officer of the illegal drug to the forensic chemist for
laboratory examination; and fourth, the turn over and
submission of the marked illegal drug seized by the forensic
chemist to the court.1wphi1

We are aware that there is no rule which requires the

prosecution to present as witness in a drugs case every
person who had something to do with the arrest of the
accused and the seizure of prohibited drugs from him. The
discretion on which witness to present in every case belongs
G.R. No. 174097 July 21, 2010
to the prosecutor.12 Nonetheless, as a mode of authenticating
evidence, the chain of custody rule requires that the
admission of an exhibit be preceded by evidence sufficient to PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
support a finding that the matter in question is what the vs.
proponent claims it to be. In context, this would ideally SONNY PADUA y REYES, Accused-Appellant.
include testimony about every link in the chain, from the
seizure of the prohibited drug up to the time it is offered into DECISION
evidence, in such a way that everyone who touched the
exhibit would describe how and from whom it was received LEONARD0-DE CASTRO, J.:
when it was and what happened to it while in the witness
possession, the condition in which it was received, and the For review is the Decision1 dated May 25, 2006 of the Court
condition in which it was delivered to the next link in the of Appeals in CA-G.R. CR.-H.C. No. 00553 which affirmed
chain.13 the Decision2 dated October 5, 2004 of the Regional Trial
Court (RTC), Branch 157, Pasig City, in Criminal Case Nos.
In this case, the over-reliance on PO1 Vargas testimony and 11595-96-D, finding accused-appellant Sonny Padua y Reyes
the failure to present the investigator and PO2 Ortiz are fatal guilty of illegal sale and possession of methamphetamine
hydrochloride, popularly known as shabu, under Sections 5
and 11, Article II of Republic Act No. 9165, otherwise
known as the Comprehensive Dangerous Drugs Act of 2002.
The facts gathered from the records are as follows:
Two separate informations dated August 19, 2002 were filed
before the RTC against appellant for illegal sale and
possession of shabu under Sections 5 3 and 11,4 Article II of
Republic Act No. 9165. The accusatory portion of the
informations read:
Criminal Case No. 11595-D
The undersigned Assistant Provincial Prosecutor accuses
SONNY PADUA y REYES of the crime of violation of
Section 5, Article II of Republic Act 9165, committed as
follows:
That, on or about the 18th day of August 2002, in the
Municipality of Taguig, Metro Manila, Philippines, and
within the jurisdiction of this Honorable Court, the above-
named accused, without being authorized by law did, then
and there willfully, unlawfully and knowingly sell, deliver
and give away to another one (1) heat sealed transparent
plastic sachet containing 0.20 gram of white crystalline
substance, which substance was found positive to the test for
"shabu", which is a dangerous drug, in consideration of the
amount of P200.00 in violation of the above-cited law.5
Criminal Case No. 11596-D
The undersigned Assistant Provincial Prosecutor accuses
SONNY PADUA y REYES of the crime of violation of
Section 11, 2nd Par., No. 3, Article II of Republic Act 9165,
committed as follows:
That, on or about the 18th day of August 2002 in the
Municipality of Taguig, Metro Manila, Philippines, and
within the jurisdiction of this Honorable Court, the above-
named accused, without being authorized by law did, then
and there willfully, unlawfully and knowingly have in his
possession, custody and control four (4) heat sealed
transparent plastic sachets, each sachet containing 0.20 gram,
0.10 gram, 0.20 gram and 0.20 gram, respectively, or in the
aggregate total weight of 0.70 gram, of white crystalline
substance, which substance were found positive to the test
for "shabu," which is a dangerous drug, in violation of the
above-cited law.6
Subsequently, these cases were consolidated. When
arraigned on September 18, 2002, appellant, assisted by
counsel de oficio, pleaded "Not guilty" to each of the
charges.7
During the pre-trial conference, the public prosecutor marked
their evidence but the defense did not mark any evidence.
The prosecution decided to present four witnesses, namely:
Senior Police Officer (SPO) 2 Nilo Banzuela, Police Officer
(PO) 3 Felix Mayuga, PO3 Cirilo Zamora and PO2 Roberto
Jovenir. The parties dispensed with the testimony of Forensic
Chemist Maria Ana Rivera-Dagasdas on the stipulation that
she received the request for laboratory examination and the
specimen allegedly confiscated from the accused on August
18, 2002 and upon her examination, the specimen proved
positive for methamphetamine hydrochloride as appearing in
Chemistry Report No. D-1237-02. The defense agreed to
present three witnesses, the accused, Alicia Padua and
Christopher Griego.8
Trial on the merits thereafter followed.
Evidence for the prosecution adduced before the RTC
consisted of the sole testimony of witness PO2 Dante Aguilar
of the District Drug Enforcement Unit (DDEU), Southern
Police District (SPD), Taguig City. He established that in the
morning of August 18, 2002, when he arrived at their office
at the Police Station of SPD, District Drug Enforcement
Group in Taguig City, his team leader, Police Inspector
(P/Insp.) Rodolfo Anicoche, upon the tip of an informant,
ordered him and the rest of his teammates, namely, SPO2
Banzuela, PO3 Cirilo Zamora, PO3 Felix Mayuga, PO2
Roberto Jovenir and PO1 Michael Esparagoza to conduct a
buy-bust operation against accused-appellant, who was
allegedly selling illegal drugs in Taguig City.9 Per
instructions, PO2 Aguilar was tasked to pose as the poseur-
buyer. Following the briefing, his team leader handed
him P200.00 marked money.10
On the same day, at around 10:30 a.m., the group proceeded
to the residence of accused-appellant at No. 216 Mozo St.,
Purok 2, Napindan, Taguig City. PO2 Aguilar, SPO2
Banzuela, the asset, and P/Insp. Anicoche parked their car
about 50 to 75 meters away from the residence of accused-
appellant, conducted a surveillance, and observed that there
were persons coming in and out of Paduas house talking to
the latter. They then went back to the other police officers
and told them the place where accused-appellant was.
Thereafter, PO2 Aguilar and the asset proceeded to the house
of accused-appellant. The asset called Sonny, and when the
latter went out of his house, the asset introduced PO2 Aguilar
to him as a delivery truck driver who had just arrived from a
provincial trip and in dire need of shabu for his personal
consumption. Aguilar handed the P200.00 marked money to
the accused-appellant, who folded and placed it on his left
pocket. Accused-appellant then took something from his
right pocket and handed an aluminum sachet to PO2 Aguilar.
Subsequently, PO2 Aguilar removed his cap, the pre-
arranged signal to the rest of the buy-bust team that he had
already bought the shabu. When PO1 Esparagoza arrived,
PO2 Aguilar frisked and arrested the accused-appellant. He
recovered the buy-bust money in the left pocket and four
sachets in the right pocket of the accused-appellant. He
informed accused-appellant of his right to remain silent, and
of the fact that he would be charged with violation of
Republic Act No. 9165. They brought him to the police
station. Later, PO2 Aguilar turned over the seized drugs to
the investigator, who thereafter brought the evidence to the
SPD Crime Laboratory Office, Fort Bonifacio, Taguig City.
For failure of PO3 Cirilo Zamora to appear on the April 3,
2003 hearing,11 PO1 Michael Esparagoza to appear on the
July 24, 2003 hearing,12 and PO2 Robert Jovenir to appear at
the November 12, 2003 hearing,13 despite notices, their
testimonies were deemed waived.
The prosecution also adduced documentary and object
evidence to buttress the testimony of its witness, to wit: (1)
joint affidavit of the arresting officers signed by SPO2 Nilo
Banzuela, PO3 Cirilo Zamora, PO2 Dante Aguilar, PO3
Felix Mayuga, PO2 Roberto Jovenir and PO1 Michael
Esparagoza;14 (2) request for laboratory examination dated
August 18, 2002;15 (3) Physical Science Report No. D-1237-
02 dated August 18, 2002, signed by Forensic Chemist Maria
Ana Rivera-Dagasdas;16 (4) one heat-sealed transparent
plastic sachet containing 0.20 gram of shabu; (5) four heat-
sealed transparent plastic sachets each containing 0.20 gram,
0.10 gram, 0.20 gram and 0.20 gram respectively, of shabu;
and (6) photocopy of two one-hundred-peso bills with serial
numbers FW840532 and YR684136.17
The defense, on the other hand, had an entirely different
version of what transpired that morning. It presented two
witnesses: accused-appellant Sonny Padua and Miranda
Estanislao. The testimony of Alice Padua, the wife of the
accused was dispensed with, on the stipulation that if
presented she will just corroborate the testimony of the
accused.
Accused-appellant testified that there was no buy-bust
operation on August 18, 2002. On direct examination,
accused-appellant asserted that at around 8:00 to 9:00
oclock in the morning of August 18, 2002, he was awakened
by the operatives who went to his house located at No. 216,
Mozo Street, Purok 2, Barangay Napindan, Taguig City.
When he opened his eyes, a gun was poked at him. He was
handcuffed by the police officers and was brought to DDEU
at Fort Bonifacio, where he was detained. While inside the
vehicle on their way to Fort Bonifacio, accused-appellant
alleged that the police officers asked him to give them
money in the amount of P120,000.00 otherwise a case will
be filed against him.
The following day, accused-appellant was allegedly brought
to the Capitol Compound for inquest and was thereafter
brought to the Taguig Municipal Jail. He was not aware of
any violation he committed. It was only during the inquest
proceedings in court that accused-appellant learned of the
charges filed against him.
The defense also offered the testimony of Miranda
Estanislao, cousin of the wife of accused-appellant. Per her
statement, on August 18, 2002 in front of the house of her
mother and beside the house of accused-appellant located at
No. 216 Mozo St., Purok 2, Napindan, Taguig City, five men
arrived. The three entered the gate of the premises of
accused-appellant, one was left outside of the gate while the
other approached her and asked her of the address of the
place. Ten minutes after they entered the house of accused-
appellant, they came out together with accused-appellant
who was then handcuffed and half-naked.18
After trial, the court a quo found accused-appellant guilty as
charged. The dispositive portion of the trial courts decision
reads:
WHEREFORE, the court finds accused SONNY PADUA Y
REYES guilty beyond reasonable doubt of violation of
Section 5, Article II of Republic Act 9165, and hereby
sentences him to suffer life imprisonment and to pay a fine
of P500,000.00.
The Court also finds accused GUILTY beyond reasonable
doubt of violation of Section 11, Article II of the same law
and sentences him to suffer a prison term ranging from
TWELVE (12) YEARS and ONE (1) DAY, AS MINIMUM,
to TWENTY (20) YEARS, as maximum, and to pay a fine
of P300.000.00
The confiscated evidence are forfeited in favor of the
Government and the Branch Clerk of Court is directed to
cause their immediate transmittal to the Philippine Drug
Enforcement Agency (PDEA) for immediate disposal in
accordance with law.19
On May 25, 2006, the Court of Appeals affirmed the findings
and conclusion of the RTC. The appellate court ruled that the
buy-bust operation conducted by the police officers was
proper and there was no irregularity in the conduct of the
same. Accused-appellant was caught in flagrante delicto,
thus, his arrest was lawful and the sachets of shabu
confiscated from him were admissible in evidence, being the
fruits of the crime. The Court of Appeals also ruled that there
was no evidence of any improper motive on the part of
prosecution witness PO2 Aguilar, who was a member of the
team who conducted the buy-bust operation.
The records of this case were thereby forwarded by the Court
of Appeals to this Court pursuant to its Resolution dated July
20, 2006, giving due course to accused-appellants Notice of
Appeal.
In our Resolution20 dated October 16, 2006, the parties were
notified that they may file their respective supplemental
briefs, if they so desired, within 30 days from notice.
People21 opted not to file a supplemental brief on the ground
that it had exhaustively argued all the relevant issues in its
brief, and the filing of a supplemental brief would only entail
a repetition of the arguments already discussed therein.
Accused-appellant submitted his supplemental brief on
December 20, 2006.
In his Supplemental Brief,22 accused-appellant assigned the (a) The apprehending officer/team having initial custody and
following errors: control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same
I. in the presence of the accused or the person/s from whom
such items were confiscated and/or seized, or his/her
THE GUILT OF THE ACCUSED- representative or counsel, a representative from the media
APPELLANT WAS NOT PROVEN and the Department of Justice (DOJ), and any elected public
BEYOND REASONABLE DOUBT FOR official who shall be required to sign the copies of the
FAILURE OF THE PROSECUTION TO inventory and be given a copy thereof: x x x Provided,
ESTABLISH THE CHAIN OF CUSTODY further, that non-compliance with these requirements under
OF THE SPECIMEN. justifiable grounds, as long as the integrity and the
evidentiary value of the seized items are properly preserved
by the apprehending officer/team, shall not render void and
II.
invalid such seizures of and custody over said items.
THE APPELLATE COURT, WITH DUE
Under the same proviso, non-compliance with the stipulated
RESPECT, GRAVELY ERRED IN
procedure, under justifiable grounds, shall not render void
CONVICTING THE ACCUSED-
and invalid such seizures of and custody over said items, for
APPELLANT DESPITE FAILURE OF
as long as the integrity and evidentiary value of the seized
THE PROSECUTION TO PRESENT THE
items are properly preserved by the apprehending officers.
ALLEGED INFORMANT.
Clearly, the purpose of the procedure outlined in the
Accused-appellant asserts that the police officers failed to
implementing rules is centered on the preservation of the
account for the chain of custody of the seized items alleged
integrity and evidentiary value of the seized items. The
to be shabu. He questions the non-presentation as witness of
testimony of PO2 Aguilar outlines the chain of custody of the
the alleged investigator, the officer on duty who received the
confiscated items, i.e., sachets of shabu:
specimen together with the request for laboratory
examination from PO2 Aguilar. He maintains that the
specimen, which PO2 Aguilar turned over to Forensic The fact that the persons who had possession or custody of
Chemist Rivera-Dagasdas, may no longer be the same the subject drugs, such as Forensic Chemist Rivera-Dagasdas
specimen taken from him by PO2 Aguilar. and the alleged investigator, were not presented as witnesses
to corroborate SPO2 Aguilars testimony is of no moment.
The non-presentation as witnesses of other persons such as
Contrary to accused-appellants claim, there is no broken
the investigator and the forensic chemist, is not a crucial
chain in the custody of the seized items, found to be shabu,
point against the prosecution. The matter of presentation of
from the time PO2 Aguilar got the shabu, to the time it was
witnesses by the prosecution is not for the court to decide.
turned over to the investigating officer, and up to the time it
The prosecution has the discretion as to how to present its
was brought to the forensic chemist at the PNP Crime
case and it has the right to choose whom it wishes to present
Laboratory for laboratory examination.
as witnesses.24
The procedure for the custody and disposition of confiscated,
As may be noted, the prosecution dispensed with the
seized and/or surrendered dangerous drugs, among others, is
testimony of Forensic Chemist Rivera-Dagasdas because the
provided under paragraph 1, Section 21, Article II of
defense had already agreed during the pre-trial in the
Republic Act No. 9165, as follows:
substance of her testimony to be given during trial, to wit:
(1) The apprehending team having initial custody and control
To expedite the proceeding, the parties dispensed with the
of the drugs shall, immediately after seizure and
testimony of Forensic Chemist Maria Ana Rivera-Dagasdas,
confiscation, physically inventory and photograph the same
who appeared today, on stipulation that she received the
in the presence of the accused or the person/s from whom
Request for Laboratory Examination dated August 18, 2002
such items were confiscated and/or seized, or his/her
and the specimen allegedly confiscated from the accused,
representative or counsel, a representative from the media
that upon her examination the specimen proved positive for
and the Department of Justice (DOJ), and any elected public
methamphetamine hydrochloride, a dangerous drug, as
official who shall be required to sign the copies of the
appearing in the Chemistry Report No. D-1237-02.25
inventory and be given a copy thereof.
Anent the failure of the prosecution to present the testimony
Section 21(a), Article II of the Implementing Rules and
of the informant, it is well-settled that the testimony of an
Regulations of Republic Act No. 9165, which implements
informant in drug-pushing cases is not essential for
said provision, stipulates:
conviction and may be dispensed if the poseur-buyer testified
on the same.26 Informants are almost always never presented
in court because of the need to preserve their invaluable
service to the police.27
Further, not all people who came into contact with the seized
drugs are required to testify in court. There is nothing in
Republic Act No. 9165 or in any rule implementing the same
that imposes such requirement. As long as the chain of
custody of the seized drug was clearly established not to
have been broken and that the prosecution did not fail to
identify properly the drugs seized, it is not indispensable that
each and every person who came into possession of the drugs
should take the witness stand.28 In People v. Zeng Hua
Dian,29 we ruled:
After a thorough review of the records of this case, we find
that the chain of custody of the seized substance was not
broken and that the prosecution did not fail to identify
properly the drugs seized in this case. The non-presentation
as witnesses of other persons such as SPO1 Grafia, the
evidence custodian, and PO3 Alamia, the officer on duty, is
not a crucial point against the prosecution. The matter of
presentation of witnesses by the prosecution is not for the
court to decide. The prosecution has the discretion as to how
to present its case and it has the right to choose whom it
wishes to present as witnesses.
What determines if there was, indeed, a sale of dangerous
drugs in a buy-bust operation is proof of the concurrence of
all the elements of the offense, to wit: (1) the identity of the
buyer and the seller, the object, and the consideration; and
(2) the delivery of the thing sold and the payment therefor,
which the prosecution has satisfactorily established. The
prosecution satisfactorily proved the illegal sale of dangerous
drugs and presented in court the evidence of corpus delicti.30
In the instant case, all the elements of the crime have been
sufficiently established by the prosecution. The witness for
the prosecution was able to prove that the buy-bust operation
indeed took place, and the shabu subject of the sale was
brought to and duly identified in court. The poseur-buyer
(PO2 Aguilar) positively identified accused-appellant as the
one who had sold to him one heat-sealed, transparent plastic
sachet containing twenty decigrams (0.20 gram) of shabu.
After accused-appellant received the marked money and
handed to PO2 Aguilar one plastic sachet of shabu, the latter
called his team mates and right away frisked the accused-
appellant. From the body search, PO2 Aguilar recovered
from the possession of accused-appellant, specifically from
the latters right pocket, another four sachets of shabu.
On the other hand, for an accused to be convicted of illegal
possession of prohibited or regulated drugs, the following
elements must concur: (1) the accused is in possession of an
item or object which is identified to be a prohibited drug; (2)
such possession is not authorized by law; and (3) the accused
freely and consciously possesses the said drug.31
With respect to the charge of illegal possession of dangerous
drugs under Section 11, Article II of Republic Act No. 9165,
all of these elements were present and duly proven in
Criminal Case No. 11596-D. These are: (1) accused-
appellant was found to be in possession of .70 gram of
shabu, a dangerous drug; (2) the identity of accused-
appellant as the person found in possession of the dangerous
drug was established; and (3) accused-appellant, the person
found to be in possession, was not authorized to possess the
dangerous drug. The prosecution has established that the
arresting officers were able to retrieve four more plastic
sachets of shabu in accused-appellants possession when he
was directed to empty his pockets upon being arrested in
flagrante delicto in the buy-bust operation.
PO2 Aguilar straightforwardly narrated the circumstances
leading to the consummation of the sale of illegal drugs, the
possession of four plastic sachets of shabu and the arrest of
accused-appellant. Credence was properly accorded to the
testimony of prosecution witness PO2 Aguilar who is a law
enforcer. The testimony of the police officers carried with it
the presumption of regularity in the performance of official
functions. Law enforcers are presumed to have performed
their duties regularly in the absence of evidence to the
contrary. When police officers have no motive for testifying
falsely against the accused, courts are inclined to uphold the
presumption of regularity in the performance of their
duties32 and no evidence whatsoever was presented that
would suggest any improper motive on the part of the police
enforcers. This Court accords great respect to and treats with
finality the findings of the trial court on the matter of
credibility of witnesses, absent any palpable error or
arbitrariness in its findings.
Accused-appellant also contends that the prosecution failed
to prove that he received the money as payment for the sale
of illegal drugs, by its failure to prove that he was positive
for ultraviolet fluorescent powder. The accused-appellant
fails to persuade us. Since the prosecution has discharged its
onus of proving the accusation, as in fact it presented the
prohibited drug and identified accused-appellant as the
offender, it is immaterial that prosecution present report that
accused-appellant was indeed positive for ultraviolet
fluorescent powder.
In a last-ditch but futile attempt to evade culpability, the
accused-appellant tried to argue on his behalf that no
surveillance was conducted before the buy-bust operation.
A prior surveillance is not a prerequisite for the validity of an
entrapment or buy-bust operation, the conduct of which has
no rigid or textbook method. Flexibility is a trait of good
police work. However the police carry out its entrapment
operations, for as long as the rights of the accused have not
been violated in the process, the courts will not pass on the
wisdom thereof.33 The police officers may decide that time is
of the essence and dispense with the need for prior
surveillance.34
Since accused-appellants violation of Sections 5 and 11,
Article II of Republic Act No. 9165 were duly established by
the prosecutions evidence, we shall now ascertain the
penalties imposable on him.
Under Section 5, Article II of Republic Act No. 9165, the
unauthorized sale of shabu, regardless of its quantity and
purity, carries with it 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).
Pursuant, however, to the enactment of Republic Act No.
9346, entitled "An Act Prohibiting the Imposition of Death
Penalty in the Philippines," only life imprisonment and fine
shall be imposed. Thus, the RTC and the Court of Appeals
were correct in imposing the penalty of life imprisonment
and fine of P500,000.00 on appellant in Criminal Case No.
11595-D.
Section 11(3), Article II of Republic Act No. 9165 provides
that illegal possession of less than five grams of shabu is
penalized with imprisonment of twelve (12) years and one
day to twenty (20) years, plus a fine ranging from Three
hundred thousand pesos (P300,000.00) to Four hundred
thousand pesos (P400,000.00).1avvphi1
Accused-appellant was charged with and found to be guilty
of illegal possession of 0.70 gram of shabu in Criminal Case
No. 11596-D. Hence, the RTC and the Court of Appeals
aptly sentenced appellant to imprisonment of 12 years and
one day, as minimum, to 20 years, as maximum, and fined
him P300,000.00, since said penalties are within the range of
penalties prescribed by the aforequoted provision.
WHEREFORE, the Decision dated May 25, 2006 of the
Court of Appeals in CA-G.R. CR.-H.C. No. 00553 is hereby
AFFIRMED in toto.
SO ORDERED.
G.R. No. 182748 December 13, 2011
ARNEL COLINARES, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
ABAD, J.:
This case is about a) the need, when invoking self-defense, to
prove all that it takes; b) what distinguishes frustrated
homicide from attempted homicide; and c) when an accused
who appeals may still apply for probation on remand of the
case to the trial court.
The Facts and the Case
The public prosecutor of Camarines Sur charged the accused
Arnel Colinares (Arnel) with frustrated homicide before the
Regional Trial Court (RTC) of San Jose, Camarines Sur, in
Criminal Case T-2213.1
Complainant Rufino P. Buena (Rufino) testified that at
around 7:00 in the evening on June 25, 2000, he and Jesus
Paulite (Jesus) went out to buy cigarettes at a nearby store.
On their way, Jesus took a leak by the roadside with Rufino
waiting nearby. From nowhere, Arnel sneaked behind and
struck Rufino twice on the head with a huge stone, about 15
inches in diameter. Rufino fell unconscious as Jesus fled.
Ananias Jallores (Ananias) testified that he was walking
home when he saw Rufino lying by the roadside. Ananias
tried to help but someone struck him with something hard on
the right temple, knocking him out. He later learned that
Arnel had hit him.
Paciano Alano (Paciano) testified that he saw the whole
incident since he happened to be smoking outside his house.
He sought the help of a barangay tanod and they brought
Rufino to the hospital.
Dr. Albert Belleza issued a Medico-Legal
Certificate2 showing that Rufino suffered two lacerated
wounds on the forehead, along the hairline area. The doctor
testified that these injuries were serious and potentially fatal
but Rufino chose to go home after initial treatment.
The defense presented Arnel and Diomedes Paulite
(Diomedes). Arnel claimed self-defense. He testified that he
was on his way home that evening when he met Rufino,
Jesus, and Ananias who were all quite drunk. Arnel asked
Rufino where he supposed the Mayor of Tigaon was but,
rather than reply, Rufino pushed him, causing his fall. Jesus
and Ananias then boxed Arnel several times on the back.
Rufino tried to stab Arnel but missed. The latter picked up a
stone and, defending himself, struck Rufino on the head with
it. When Ananias saw this, he charged towards Arnel and
tried to stab him with a gaff. Arnel was able to avoid the
attack and hit Ananias with the same stone. Arnel then fled
and hid in his sisters house. On September 4, 2000, he
voluntarily surrendered at the Tigaon Municipal Police
Station.
Diomedes testified that he, Rufino, Jesus, and Ananias
attended a pre-wedding party on the night of the incident.
His three companions were all drunk. On his way home,
Diomedes saw the three engaged in heated argument with
Arnel.
On July 1, 2005 the RTC rendered judgment, finding Arnel
guilty beyond reasonable doubt of frustrated homicide and
sentenced him to suffer imprisonment from two years and
four months of prision correccional, as minimum, to six
years and one day of prision mayor, as maximum. Since the
maximum probationable imprisonment under the law was
only up to six years, Arnel did not qualify for probation.
Arnel appealed to the Court of Appeals (CA), invoking self-
defense and, alternatively, seeking conviction for the lesser
crime of attempted homicide with the consequent reduction
of the penalty imposed on him. The CA entirely affirmed the
RTC decision but deleted the award for lost income in the
absence of evidence to support it.3 Not satisfied, Arnel comes
to this Court on petition for review.
In the course of its deliberation on the case, the Court
required Arnel and the Solicitor General to submit their
respective positions on whether or not, assuming Arnel
committed only the lesser crime of attempted homicide with
its imposable penalty of imprisonment of four months of
arresto mayor, as minimum, to two years and four months of
prision correccional, as maximum, he could still apply for
probation upon remand of the case to the trial court.
Both complied with Arnel taking the position that he should
be entitled to apply for probation in case the Court metes out
a new penalty on him that makes his offense probationable.
The language and spirit of the probation law warrants such a
stand. The Solicitor General, on the other hand, argues that
under the Probation Law no application for probation can be
entertained once the accused has perfected his appeal from
the judgment of conviction.
The Issues Presented
The case essentially presents three issues:
1. Whether or not Arnel acted in self-defense when he struck
Rufino on the head with a stone;
2. Assuming he did not act in self-defense, whether or not
Arnel is guilty of frustrated homicide; and
3. Given a finding that Arnel is entitled to conviction for a
lower offense and a reduced probationable penalty, whether
or not he may still apply for probation on remand of the case
to the trial court.
The Courts Rulings
One. Arnel claims that Rufino, Jesus, and Ananias attacked
him first and that he merely acted in self-defense when he hit
Rufino back with a stone.
When the accused invokes self-defense, he bears the burden
of showing that he was legally justified in killing the victim
or inflicting injury to him. The accused must establish the
elements of self-defense by clear and convincing evidence.
When successful, the otherwise felonious deed would be
excused, mainly predicated on the lack of criminal intent of
the accused.4
In homicide, whether consummated, frustrated, or attempted,
self-defense requires (1) that the person whom the offender
killed or injured committed unlawful aggression; (2) that the
offender employed means that is reasonably necessary to
prevent or repel the unlawful aggression; and (3) that the
person defending himself did not act with sufficient
provocation.5
If the victim did not commit unlawful aggression against the
accused, the latter has nothing to prevent or repel and the
other two requisites of self-defense would have no basis for
being appreciated. Unlawful aggression contemplates an
actual, sudden, and unexpected attack or an imminent danger
of such attack. A mere threatening or intimidating attitude is
not enough. The victim must attack the accused with actual
physical force or with a weapon.6
Here, the lower courts found that Arnel failed to prove the
element of unlawful aggression. He alone testified that Jesus
and Ananias rained fist blows on him and that Rufino and
Ananias tried to stab him. No one corroborated Arnels
testimony that it was Rufino who started it. Arnels only
other witness, Diomedes, merely testified that he saw those
involved having a heated argument in the middle of the
street. Arnel did not submit any medical certificate to prove
his point that he suffered injuries in the hands of Rufino and
his companions.7
In contrast, the three witnessesJesus, Paciano, and Ananias
testified that Arnel was the aggressor. Although their
versions were mottled with inconsistencies, these do not
detract from their core story. The witnesses were one in what
Arnel did and when and how he did it. Compared to Arnels
testimony, the prosecutions version is more believable and
consistent with reality, hence deserving credence.8
Two. But given that Arnel, the accused, was indeed the
aggressor, would he be liable for frustrated homicide when
the wounds he inflicted on Rufino, his victim, were not fatal
and could not have resulted in death as in fact it did not?
The main element of attempted or frustrated homicide is the
accuseds intent to take his victims life. The prosecution has
to prove this clearly and convincingly to exclude every
possible doubt regarding homicidal intent. 9And the intent to
kill is often inferred from, among other things, the means the
offender used and the nature, location, and number of
wounds he inflicted on his victim.10
Here, Arnel struck Rufino on the head with a huge stone. The
blow was so forceful that it knocked Rufino out. Considering
the great size of his weapon, the impact it produced, and the
location of the wounds that Arnel inflicted on his victim, the
Court is convinced that he intended to kill him.
The Court is inclined, however, to hold Arnel guilty only of
attempted, not frustrated, homicide. In Palaganas v.
People,11 we ruled that when the accused intended to kill his
victim, as shown by his use of a deadly weapon and the
wounds he inflicted, but the victim did not die because of
timely medical assistance, the crime is frustrated murder or
frustrated homicide. If the victims wounds are not fatal, the
crime is only attempted murder or attempted homicide.
Thus, the prosecution must establish with certainty the
nature, extent, depth, and severity of the victims wounds.
While Dr. Belleza testified that "head injuries are always
very serious,"12 he could not categorically say that Rufinos
wounds in this case were "fatal." Thus:
Q: Doctor, all the injuries in the head are fatal?
A: No, all traumatic injuries are potentially treated.
Q: But in the case of the victim when you treated him the
wounds actually are not fatal on that very day?
A: I could not say, with the treatment we did, prevent
from becoming fatal. But on that case the patient
preferred to go home at that time.
Q: The findings also indicated in the medical certificate
only refers to the length of the wound not the depth of the
wound?
A: When you say lacerated wound, the entire length of
the layer of scalp.
Q: So you could not find out any abrasion?
A: It is different laceration and abrasion so once the skin
is broken up the label of the frontal lo[b]e, we always call
it lacerated wound, but in that kind of wound, we did not
measure the depth.13
Indeed, Rufino had two lacerations on his forehead but there
was no indication that his skull incurred fracture or that he
bled internally as a result of the pounding of his head. The
wounds were not so deep, they merely required suturing, and
were estimated to heal in seven or eight days. Dr. Belleza
further testified:
Q: So, in the medical certificate the wounds will not
require surgery?
A: Yes, Madam.
Q: The injuries are slight?
A: 7 to 8 days long, what we are looking is not much, we
give antibiotics and antit[e]tanus the problem the
contusion that occurred in the brain.
xxxx
Q: What medical intervention that you undertake?
A: We give antibiotics, Your Honor, antit[e]tanus and
suturing the wounds.
Q: For how many days did he stay in the hospital?
A: Head injury at least be observed within 24 hours, but
some of them would rather go home and then come back.
Q: So the patient did not stay 24 hours in the hospital?
A: No, Your Honor.
Q: Did he come back to you after 24 hours?
A: I am not sure when he came back for follow-up.14
Taken in its entirety, there is a dearth of medical evidence on
record to support the prosecutions claim that Rufino would
have died without timely medical intervention. Thus, the
Court finds Arnel liable only for attempted homicide and
entitled to the mitigating circumstance of voluntary
surrender.
Three. Ordinarily, Arnel would no longer be entitled to apply
for probation, he having appealed from the judgment of the
RTC convicting him for frustrated homicide.
But, the Court finds Arnel guilty only of the lesser crime of
attempted homicide and holds that the maximum of the
penalty imposed on him should be lowered to imprisonment
of four months of arresto mayor, as minimum, to two years
and four months of prision correccional, as maximum. With
this new penalty, it would be but fair to allow him the right to
apply for probation upon remand of the case to the RTC.
Some in the Court disagrees. They contend that probation is
a mere privilege granted by the state only to qualified
convicted offenders. Section 4 of the probation law (PD 968)
provides: "That no application for probation shall be
entertained or granted if the defendant has perfected the
appeal from the judgment of conviction." 15Since Arnel
appealed his conviction for frustrated homicide, he should be
deemed permanently disqualified from applying for
probation.
But, firstly, while it is true that probation is a mere privilege,
the point is not that Arnel has the right to such privilege; he
certainly does not have. What he has is the right to apply for
that privilege. The Court finds that his maximum jail term
should only be 2 years and 4 months. If the Court allows him
to apply for probation because of the lowered penalty, it is
still up to the trial judge to decide whether or not to grant
him the privilege of probation, taking into account the full
circumstances of his case.
Secondly, it is true that under the probation law the accused
who appeals "from the judgment of conviction" is
disqualified from availing himself of the benefits of
probation. But, as it happens, two judgments of conviction
have been meted out to Arnel: one, a conviction for
frustrated homicide by the regional trial court, now set aside;
and, two, a conviction for attempted homicide by the
Supreme Court.
If the Court chooses to go by the dissenting opinions hard
position, it will apply the probation law on Arnel based on
the trial courts annulled judgment against him. He will not
be entitled to probation because of the severe penalty that
such judgment imposed on him. More, the Supreme Courts
judgment of conviction for a lesser offense and a lighter
penalty will also have to bend over to the trial courts
judgmenteven if this has been found in error. And, worse,
Arnel will now also be made to pay for the trial courts
erroneous judgment with the forfeiture of his right to apply
for probation. Ang kabayo ang nagkasala, ang hagupit ay sa
kalabaw (the horse errs, the carabao gets the whip). Where is
justice there?
The dissenting opinion also expresses apprehension that
allowing Arnel to apply for probation would dilute the ruling
of this Court in Francisco v. Court of Appeals 16 that the
probation law requires that an accused must not have
appealed his conviction before he can avail himself of
probation. But there is a huge difference between Francisco
and this case.
In Francisco, the Metropolitan Trial Court (MeTC) of Makati
found the accused guilty of grave oral defamation and
sentenced him to a prison term of one year and one day to
one year and eight months of prision correccional, a clearly
probationable penalty. Probation was his to ask! Still, he
chose to appeal, seeking an acquittal, hence clearly waiving
his right to apply for probation. When the acquittal did not
come, he wanted probation. The Court would not of course
let him. It served him right that he wanted to save his cake
and eat it too. He certainly could not have both appeal and
probation.
The Probation Law, said the Court in Francisco, requires that
an accused must not have appealed his conviction before he
can avail himself of probation. This requirement "outlaws the
element of speculation on the part of the accusedto wager
on the result of his appealthat when his conviction is
finally affirmed on appeal, the moment of truth well-nigh at
hand, and the service of his sentence inevitable, he now
applies for probation as an escape hatch thus rendering
nugatory the appellate courts affirmance of his
conviction."17
Here, however, Arnel did not appeal from a judgment that
would have allowed him to apply for probation. He did not
have a choice between appeal and probation. He was not in a
position to say, "By taking this appeal, I choose not to apply
for probation." The stiff penalty that the trial court imposed
on him denied him that choice. Thus, a ruling that would
allow Arnel to now seek probation under this Courts greatly
diminished penalty will not dilute the sound ruling in
Francisco. It remains that those who will appeal from
judgments of conviction, when they have the option to try for
probation, forfeit their right to apply for that privilege.
Besides, in appealing his case, Arnel raised the issue of
correctness of the penalty imposed on him. He claimed that
the evidence at best warranted his conviction only for
attempted, not frustrated, homicide, which crime called for a
probationable penalty. In a way, therefore, Arnel sought from
the beginning to bring down the penalty to the level where
the law would allow him to apply for probation.
In a real sense, the Courts finding that Arnel was guilty, not
of frustrated homicide, but only of attempted homicide, is an
original conviction that for the first time imposes on him a
probationable penalty. Had the RTC done him right from the
start, it would have found him guilty of the correct offense
and imposed on him the right penalty of two years and four
months maximum.lavvphil This would have afforded Arnel
the right to apply for probation.
The Probation Law never intended to deny an accused his
right to probation through no fault of his. The underlying
philosophy of probation is one of liberality towards the
accused. Such philosophy is not served by a harsh and
stringent interpretation of the statutory provisions. 18 As
Justice Vicente V. Mendoza said in his dissent in Francisco,
the Probation Law must not be regarded as a mere privilege
to be given to the accused only where it clearly appears he
comes within its letter; to do so would be to disregard the
teaching in many cases that the Probation Law should be
applied in favor of the accused not because it is a criminal
law but to achieve its beneficent purpose.19
One of those who dissent from this decision points out that
allowing Arnel to apply for probation after he appealed from
the trial courts judgment of conviction would not be
consistent with the provision of Section 2 that the probation
law should be interpreted to "provide an opportunity for the
reformation of a penitent offender." An accused like Arnel
who appeals from a judgment convicting him, it is claimed,
shows no penitence.
This may be true if the trial court meted out to Arnel a
correct judgment of conviction. Here, however, it convicted
Arnel of the wrong crime, frustrated homicide, that carried a
penalty in excess of 6 years. How can the Court expect him
to feel penitent over a crime, which as the Court now finds,
he did not commit? He only committed attempted homicide
with its maximum penalty of 2 years and 4 months.

Ironically, if the Court denies Arnel the right to apply for

probation under the reduced penalty, it would be sending him
straight behind bars. It would be robbing him of the chance
to instead undergo reformation as a penitent offender,
defeating the very purpose of the probation law.

At any rate, what is clear is that, had the RTC done what was
right and imposed on Arnel the correct penalty of two years
and four months maximum, he would have had the right to
apply for probation. No one could say with certainty that he
would have availed himself of the right had the RTC done
right by him. The idea may not even have crossed his mind
precisely since the penalty he got was not probationable.

The question in this case is ultimately one of fairness. Is it

fair to deny Arnel the right to apply for probation when the
new penalty that the Court imposes on him is, unlike the one
erroneously imposed by the trial court, subject to probation?

WHEREFORE, the Court PARTIALLY GRANTS the

petition, MODIFIES the Decision dated July 31, 2007 of the
Court of Appeals in CA-G.R. CR 29639, FINDS petitioner
Arnel Colinares GUILTY beyond reasonable doubt of
attempted homicide, and SENTENCES him to suffer an
indeterminate penalty from four months of arresto mayor, as
minimum, to two years and four months of prision
correccional, as maximum, and to pay Rufino P. Buena the
amount of P20,000.00 as moral damages, without prejudice
to petitioner applying for probation within 15 days from
notice that the record of the case has been remanded for
execution to the Regional Trial Court of San Jose, Camarines
Sur, in Criminal Case T-2213.

SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
ROGER P. TULIN, VIRGILIO I. LOYOLA,
CECILIO O. CHANGCO, ANDRES C.
INFANTE, CHEONG SAN HIONG, and JOHN
DOES, accused-appellants.
DECISION
MELO, J.:
This is one of the older cases which unfortunately has
remained in docket of the Court for sometime. It was
reassigned, together with other similar cases, to
undersigned ponente in pursuance of A.M. No. 00-9-03-SC
dated February 27, 2001.
In the evening of March 2, 1991, M/T Tabangao, a
cargo vessel owned by the PNOC Shipping and Transport
Corporation, loaded with 2,000 barrels of kerosene, 2,600
barrels of regular gasoline, and 40,000 barrels of diesel oil,
with a total value of P40,426,793,87. was sailing off the
coast of Mindoro near Silonay Island.
The vessel, manned by 21 crew members, including
Captain Edilberto Libo-on, Second Mate Christian Torralba,
and Operator Isaias Ervas, was suddenly boarded, with the
use of an aluminum ladder, by seven fully armed pirates led
by Emilio Changco, older brother of accused-appellant
Cecilio Changco. The pirates, including accused-appellants
Tulin, Loyola, and Infante, Jr. were armed with M-16 rifles, .
45 and .38 caliber handguns, and bolos. They detained the
crew and took complete control of the vessel. Thereafter,
accused-appellant Loyola ordered three crew members to
paint over, using black paint, the name "M/T Tabangao" on
the front and rear portions of the vessel, as well as the PNOC
logo on the chimney of the vessel. The vessel was then
painted with the name "Galilee," with registry at San
Lorenzo, Honduras. The crew was forced to sail to
Singapore, all the while sending misleading radio messages
to PNOC that the ship was undergoing repairs.
PNOC, after losing radio contact with the vessel,
reported the disappearance of the vessel to the Philippine
Coast Guard and secured the assistance of the Philippine Air
Force and the Philippine Navy. However, search and rescue
operations yielded negative results. On March 9, 1991, the
ship arrived in the vicinity of Singapore and cruised around
the area presumably to await another vessel which, however,
failed to arrive. The pirates were thus forced to return to the
Philippines on March 14, 1991, arriving at Calatagan,
Batangas on March 20, 1991 where it remained at sea.
On March 28, 1991, the "M/T Tabangao" again sailed to
and anchored about 10 to 18 nautical miles from Singapore's
shoreline where another vessel called "Navi Pride" anchored
beside it. Emilio Changco ordered the crew of "M/T
Tabangao" to transfer the vessel's cargo to the hold of "Navi
Pride". Accused-appellant Cheong San Hiong supervised the
crew of "Navi Pride" in receiving the cargo. The transfer,
after an interruption, with both vessels leaving the area, was
completed on March 30,1991.
On March 30, 1991, "M/T Tabangao" returned to the
same area and completed the transfer of cargo to "Navi
Pride."
On April 8, 1991, "M/T Tabangao" arrived at Calatagan,
Batangas, but the vessel remained at sea. On April 10, 1991,
the members of the crew were released in three batches with
the stern warning not to report the incident to government
authorities for a period of two days or until April 12, 1991,
otherwise they would be killed. The first batch was fetched
from the shoreline by a newly painted passenger jeep driven
by accused-appellant Cecilio Changco, brother of Emilio
Changco, who brought them to Imus, Cavite and gave
P20,000.00 to Captain Libo-on for fare of the crew in
proceeding to their respective homes. The second batch was
fetched by accused-appellant Changco at midnight of April
10, 1991 and were brought to different places in Metro
Manila.
On April 12, 1991, the Chief Engineer, accompanied by
the members of the crew, called the PNOC Shipping and
Transport Corporation office to report the incident. The crew
members were brought to the Coast Guard Office for
investigation. The incident was also reported to the National
Bureau of Investigation where the officers and members of
the crew executed sworn statements regarding the incident.
A series of arrests was thereafter effected as follows:
a. On May 19, 1991, the NBI received verified
information that the pirates were present at U.K. Beach,
Balibago, Calatagan, Batangas. After three days of
surveillance, accused-appellant Tulin was arrested and
brought to the NBI headquarters in Manila.
b. Accused-appellants Infante, Jr. and Loyola were
arrested by chance at Aguinaldo Hi-way by NBI agents as
the latter were pursuing the mastermind, who managed to
evade arrest.
c. On May 20, 1991, accused-appellants Hiong and
Changco were arrested at the lobby of Alpha Hotel in
Batangas City.
On October 24 1991, an Information charging qualified
piracy or violation of Presidential Decree No. 532 (piracy in
Philippine Waters) was filed against accused-appellants, as
follows:
The undersigned State Prosecutor accuses ROGER P.
TULIN, VIRGILIO I. LOYOLA, CECILIO O. CHANGCO,
ANDRES C. INFANTE, and CHEONG SAN HIONG, and
nine (9) other JOHN DOES of qualified piracy (Violation of
P.D. No. 532), committed as follows:
That on or about and during the period from March 2 to April
10, 1991, both dates inclusive, and for sometime prior and
subsequent thereto, and within the jurisdiction of this
Honorable Court, the said accused, then manning a motor
launch and armed with high powered guns, conspiring and
confederating together and mutually helping one another, did
then and there, wilfully, unlawfully and feloniously fire
upon, board and seize while in the Philippine waters M/T
PNOC TABANGCO loaded with petroleum products,
together with the complement and crew members, employing
violence against or intimidation of persons or force upon
things, then direct the vessel to proceed to Singapore where
the cargoes were unloaded and thereafter returned to the
Philippines on April 10, 1991, in violation of the aforesaid
law.
CONTRARY
TO LAW.
( dollars. After the company paid over one-half of the
pp. 119-20, Rollo.)
This was docketed as Criminal Case No. 91-94896
before Branch 49 of the Regional Trial Court of the National
Capital Judicial Region stationed in Manila. Upon
arraignment, accused-appellants pleaded not guilty to the
charge. Trial thereupon ensued.
Accused-appellants Tulin, Infante, Jr., and Loyola,
notwithstanding some inconsistencies in their testimony as to
where they were on March 1, 1991, maintained the defense
of denial, and disputed the charge, as well as the transfer of
any cargo from "M/T Tabangao" to the "Navi Pride." All of
them claimed having their own respective sources of
livelihood. Their story is to the effect that on March 2, 1991,
while they were conversing by the beach, a red speedboat
with Captain Edilberto Liboon and Second Mate Christian
Torralba on board, approached the seashore. Captain Liboon
inquired from the three if they wanted to work in a vessel.
They were told that the work was light and that each worker
was to be paid P3,000.00 a month with additional
compensation if they worked beyond that period. They
agreed even though they had no sea-going experience. On
board, they cooked, cleaned the vessel, prepared coffee, and
ran errands for the officers. They denied having gone to
Singapore, claiming that the vessel only went to Batangas.
Upon arrival thereat in the morning of March 21, 1991, they
were paid P1,000.00 each as salary for nineteen days of
work, and were told that the balance would be remitted to
their addresses. There was neither receipt nor contracts of
employment signed by the parties.
Accused-appellant Changco categorically denied the
charge, averring that he was at home sleeping on April 10,
1991. He testified that he is the younger brother of Emilio
Changco, Jr.
Accused-appellant Cheong San Hiong, also known as
Ramzan Ali, adduced evidence that he studied in Sydney,
Australia, obtaining the "Certificate" as Chief Officer, and
later completed the course as a "Master" of a vessel, working
as such for two years on board a vessel. He was employed at
Navi Marine Services, Pte., Ltd. as Port Captain. The
company was engaged in the business of trading petroleum,
including shipoil, bunker lube oil, and petroleum to domestic
and international markets. It owned four vessels, one of
which was "Navi Pride."
On March 2, 1991, the day before "M/T Tabangao" was
seized by Emilio Changco and his cohorts, Hiong's name
was listed in the company's letter to the Mercantile Section
of the Maritime Department of the Singapore government as
the radio telephone operator on board the vessel "Ching Ma."
The company was then dealing for the first time with
Paul Gan, a Singaporean broker, who offered to sell to the
former bunker oil for the amount of 300,000.00 Singapore
aforesaid amount to Paul Gan, the latter, together with
Joseph Ng, Operations Superintendent of the firm, proceeded
to the high seas on board "Navi Pride" but failed to locate the
contact vessel.
The transaction with Paul Gan finally pushed through
on March 27, 1991. Hiong, upon his return on board the
vessel "Ching Ma," was assigned to supervise a ship-to-ship
transfer of diesel oil off the port of Singapore, the contact
vessel to be designated by Paul Gan. Hiong was ordered to
ascertain the quantity and quality of the oil and was given the
amount of 300,000.00 Singapore Dollars for the purchase.
Hiong, together with Paul Gan, and the surveyor William
Yao, on board "Navi Pride" sailed toward a vessel called
"M/T Galilee". Hiong was told that "M/T Galilee" would be
making the transfer. Although no inspection of "Navi Pride"
was made by the port authorities before departure, Navi
Marine Services, Pte., Ltd. was able to procure a port
clearance upon submission of General Declaration and crew
list. Hiong, Paul Gan, and the brokers were not in the crew
list submitted and did not pass through the immigration. The
General Declaration falsely reflected that the vessel carried
11,900 tons.
On March 28, 1991, "Navi Pride" reached the location
of "M/T Galilee". The brokers then told the Captain of the
vessel to ship-side with "M/T Galilee" and then transfer of
the oil transpired. Hiong and the surveyor William Yao met
the Captain of "M/T Galilee," called "Captain Bobby" (who
later turned out to be Emilio Changco). Hiong claimed that
he did not ask for the full name of Changco nor did he ask
for the latter's personal card.
 Upon completion of the transfer, Hiong took the
soundings of the tanks in the "Navi Pride" and took samples
of the cargo. The surveyor prepared the survey report which
"Captain Bobby" signed under the name "Roberto Castillo."
Hiong then handed the payment to Paul Gan and William
Yao. Upon arrival at Singapore in the morning of March 29,
1991, Hiong reported the quantity and quality of the cargo to
the company.
Thereafter, Hiong was again asked to supervise another
transfer of oil purchased by the firm " from "M/T Galilee" to
"Navi Pride." The same procedure as in the first transfer was
observed. This time, Hiong was told that that there were food
and drinks, including beer, purchased by the company for the
crew of "M/T Galilee. The transfer took ten hours and was
completed on March 30, 1991. Paul Gan was paid in full for
the transfer.
On April 29 or 30, 1991, Emilio Changco intimated to
Hiong that he had four vessels and wanted to offer its cargo
to cargo operators. Hiong was asked to act as a broker or
ship agent for the sale of the cargo in Singapore. Hiong went
to the Philippines to discuss the matter with Emilio Changco,
who laid out the details of the new transfer, this time with
"M/T Polaris" as contact vessel. Hiong was told that the
vessel was scheduled to arrive at the port of Batangas that
weekend. After being billeted at Alpha Hotel in Batangas
City, where Hiong checked in under the name "SONNY
CSH." A person by the name of "KEVIN OCAMPO," who
later turned out to be Emilio Changco himself, also checked
in at Alpha Hotel. From accused-appellant Cecilio Changco,
Hiong found out that the vessel was not arriving. Hiong was
thereafter arrested by NBI agents.
After trial, a 95-page decision was rendered convicting
accused-appellants of the crime charged. The dispositive
portion of said decision reads:
WHEREFORE, in the light of the foregoing considerations,
judgment is hereby rendered by this Court finding the
accused Roger Tulin, Virgilio Loyola, Andres Infante, Jr. and
Cecilio Changco guilty beyond reasonable doubt, as
principals, of the crime of piracy in Philippine Waters
defined in Section 2(d) of Presidential Decree No. 532 and
the accused Cheong San Hiong, as accomplice, to said crime.
Under Section 3(a) of the said law, the penalty for the
principals of said crime is mandatory death. However,
considering that, under the 1987 Constitution, the Court
cannot impose the death penalty, the accused Roger Tulin,
Virgilio Loyola, Andres Infante, ]r., and Cecilio Changco are
hereby each meted the penalty of RECLUSION
PERPETUA, with all the accessory penalties of the law. The
accused Cheong San Hiong is hereby meted the penalty of
RECLUSION PERPETUA, pursuant to Article 52 of the
Revised Penal Code in relation to Section 5 of PD 532. The
accused Roger Tulin, Virgilio Loyola, Andres Infante, Jr. and
Cecilio Changco are hereby ordered to return to the PNOC
Shipping and Transport Corporation the "M/T Tabangao" or
if the accused can no longer return the same, the said accused
are hereby ordered to remit, jointly and severally, to said
corporation the value thereof in the amount of
P11,240,000.00 Philippine Currency, with interests thereon,
at the rate of 6% per annum from March 2, 1991 until the
said amount is paid in full. All the accused including Cheong
San Hiong are hereby ordered to return to the Caltex
Philippines, Inc. the cargo of the "M/T Tabangao", or if the
accused can no longer return the said cargo to said
corporation, all the accused are hereby condemned to pay,
jointly and severally, to the Caltex Refinery, Inc., the value
of said cargo in the amount of P40,426,793.87, Philippine
Currency plus interests until said amount is paid in full. After
the accused Cheong San Hiong has served his sentence, he
shall be deported to Singapore.
All the accused shall be credited for the full period of their
detention at the National Bureau of Investigation and the
City Jail of Manila during the pendency of this case provided
that they agreed in writing to abide by and comply strictly
with the rules and regulations of the City Jail of Manila and
the National Bureau of Investigation. With costs against all
the accused.
SO ORDERED.
(pp. 149-150, Rollo.)
The matter was then elevated to this Court. The
arguments of accused-appellants may be summarized as
follows:
Roger P. Tulin Virgilio Loyola Andres C. Infante Jr., and
Cecilio O. Changco
Accused-appellants Tulin, Loyola, Infante, Jr., and
Cecilio Changco assert that the trial court erred in allowing
them to adopt the proceedings taken during the time they
were being represented by Mr. Tomas Posadas, a non-lawyer,
thereby depriving them of their constitutional right to
procedural due process.
In this regard, said accused-appellants narrate that Mr.
Posadas entered his appearance as counsel for all of them.
However, in the course of the proceedings, or on February
11, 1992, the trial court discovered that Mr. Posadas was not
a member of the Philippine Bar. This was after Mr. Posadas
had presented and examined seven witnesses for the accused.
Further, accused-appellants Tulin, Loyola, Infante,
Cecilio, Changco uniformly contend that during the custodial
investigation, they were subjected to physical violence; were
forced to sign statements without being given the opportunity
to read the contents of the same; were denied assistance of
counsel, and were not informed of their rights, in violation of
their constitutional rights,
 Said accused-appellants also argue that the trial court
erred in finding that the prosecution proved beyond
reasonable doubt that they committed the crime of qualified
piracy. They allege that the pirates were outnumbered by the
crew who totaled 22 and who were not guarded at all times.
The crew, so these accused-appellants conclude, could have
overpowered the alleged pirates.
Cheong San Hiong
In his brief, Cheong argues that: (1) Republic Act No.
7659 in effect obliterated the crime committed by him; (2)
the trial court erred in declaring that the burden is lodged on
him to prove by clear and convincing evidence that he had
no knowledge that Emilio Changco and his cohorts attacked
and seized the "M/T Tabangao" and/or that the cargo of the
vessel was stolen or the subject of theft or robbery or piracy;
(3) the trial court erred in finding him guilty as an
accomplice to the crime of qualified piracy under Section 4
of Presidential Decree No. 532 (Anti-Piracy and Anti-
Robbery Law of 1974); (4) the trial court erred in convicting
and punishing him as an accomplice when the acts allegedly
committed by him were done or executed outside of
Philippine waters and territory, stripping the Philippine
courts of jurisdiction to hold him for trial, to convict, and
sentence; (5) the trial court erred in making factual
conclusions without evidence on record to prove the same
and which in fact are contrary to the evidence adduced
during trial; (6) the trial court erred in convicting him as an
accomplice under Section 4 of Presidential Decree No. 532
when he was charged as a principal by direct participation
under said decree, thus violating his constitutional right to be
informed of the nature and cause of the accusation against
him.
Cheong also posits that the evidence against the other
accused-appellants do not prove any participation on his part
in the commission of the crime of qualified piracy. He
further argues that he had not in any way participated in the
seajacking of "M/T Tabangao" and in committing the crime
of qualified piracy, and that he was not aware that the vessel
and its cargo were pirated.
As legal basis for his appeal, he explains that he was
charged under the information with qualified piracy as
principal under Section 2 of Presidential Decree No. 532
which refers to Philippine waters. In the case at bar, he
argues that he was convicted for acts done outside Philippine
waters or territory. For the State to have criminal jurisdiction,
the act must have been committed within its territory.
We affirm the conviction of all the accused-appellants.
The issues of the instant case may be summarized as
follows: (1) what are the legal effects and implications of the
fact that a non-lawyer represented accused-appellants during
the trial?; (2) what are the legal effects and implications of
the absence of counsel during the custodial investigation?;
(3) did the trial court err in finding that the prosecution was
able to prove beyond reasonable doubt that accused-
appellants committed the crime of qualified piracy?; (4) did
Republic Act No. 7659 obliterate the crime committed by
accused-appellant Cheong?; and (5) can accused-appellant
Cheong be convicted as accomplice when he was not
charged as such and when the acts allegedly committed by
him were done or executed outside Philippine waters and
territory?
On the first issue, the record reveals that a manifestation
(Exhibit "20", Record) was executed by accused-appellants
Tulin, Loyola, Changco, and Infante, Jr. on February 11,
1991, stating that they were adopting the evidence adduced
when they were represented by a non-lawyer. Such waiver of
the right to sufficient representation during the trial as
covered by the due process clause shall only be valid if made
with the full assistance of a bona fide lawyer. During the
trial, accused-appellants, as represented by Atty. Abdul
Basar, made a categorical manifestation that said accused-
appellants were apprised of the nature and legal
consequences of the subject manifestation, and that they
voluntarily and intelligently executed the same. They also
affirmed the truthfulness of its contents when asked in open
court (tsn, February 11, 1992, pp. 7-59). It is true that an
accused person shall be entitled to be present and to defend
himself in person and by counsel at every stage of the
proceedings, from arraignment to promulgation of judgment
(Section 1, Rule 115, Revised Rules of Criminal Procedure).
This is hinged on the fact that a layman is not versed on the
technicalities of trial. However, it is also provided by law
that "[r]ights may be waived, unless the waiver is contrary to
law, public order, public policy, morals, or good customs or
prejudicial to a third person with right recognized by law."
(Article 6, Civil Code of the Philippines). Thus, the same
section of Rule 115 adds that "[u]pon motion, the accused
may be allowed to defend himself in person when it
sufficiently appears to the court that he can properly protect
his rights without the assistance of counsel." By analogy ,
but without prejudice to the sanctions imposed by law for the
illegal practice of law, it is amply shown that the rights of
accused-appellants were sufficiently and properly protected
by the appearance of Mr. Tomas Posadas. An examination of
the record will show that he knew the technical rules of
procedure. Hence, we rule that there was a valid waiver of
the right to sufficient representation during the trial,
considering that it was unequivocally, knowingly, and
intelligently made and with the full assistance of a bona fide
lawyer, Atty. Abdul Basar. Accordingly, denial of due process
cannot be successfully invoked where a valid waiver of
rights has been made (People vs. Serzo, 274 SCRA 553
[1997]; Sayson vs. People, 166 SCRA 680 [1988]).
However, we must quickly add that the right to counsel
during custodial investigation may not be waived except in
writing and in the presence of counsel.
Section 12, Article III of the Constitution reads:
SEC. 12. (1) Any person under investigation for the
commission of an offense shall have the right to be informed
of his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the
person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in
writing and in the presence of counsel.
(2) No torture, force, violence, threat, intimidation, or any
other means which vitiate the free will shall be used against
him. Secret detention places, solitary, incommunicado, or
other similar forms of detention are prohibited.
(3) Any confession or admission obtained in violation of this
or Section 17 hereof shall be inadmissible in evidence
against him.
(4) The law shall provide for penal and civil sanctions for
violations of this section as well as compensation to and
rehabilitation of victims of torture or similar practices, and
their families.
Such rights originated from Miranda v. Arizona (384 U.
S. 436 [1966]) which gave birth to the so-called Miranda
doctrine which is to the effect that prior to any questioning
during custodial investigation, the person must be warned
that he has a right to remain silent, that any statement he
gives may be used as evidence against him, and that he has
the right to the presence of an attorney, either retained or
appointed. The defendant may waive effectuation of these
rights, provided the waiver is made voluntarily, knowingly,
and intelligently. The Constitution even adds the more
stringent requirement that the waiver must be in writing and
made in the presence of counsel.
Saliently, the absence of counsel during the execution
of the so-called confessions of the accused-appellants make
them invalid. In fact, the very basic reading of the Miranda
rights was not even shown in the case at bar. Paragraph [3] of
the aforestated Section 12 sets forth the so-called "fruit from
the poisonous tree doctrine," a phrase minted by Mr. Justice
Felix Frankfurter in the celebrated case of Nardone vs.
United States (308 U.S. 388 [1939]). According to this rule,
once the primary source (the "tree") is shown to have been
unlawfully obtained, any secondary or derivative evidence
(the "fruit") derived from it is also inadmissible. The rule is
based on the principle that evidence illegally obtained by the
State should not be used to gain other evidence because the
originally illegally obtained evidence taints all evidence
subsequently obtained (People vs. Alicando, 251 SCRA 293
[1995]). Thus, in this case, the uncounselled extrajudicial
confessions of accused-appellants, without a valid waiver of
the right to counsel, are inadmissible and whatever
information is derived therefrom shall be regarded as
likewise inadmissible in evidence against them.
However, regardless of the inadmissibility of the
subject confessions, there is sufficient evidence to convict
accused-appellants with moral certainty. We agree with the
sound deduction of the trial court that indeed, Emilio
Changco (Exhibits "U" and "UU") and accused-appellants
Tulin, Loyola, .and Infante, Jr. did conspire and confederate
to commit the crime charged. In the words of then trial
judge, now Justice Romeo J. Callejo of the Court of Appeals
-
...The Prosecution presented to the Court an array of
witnesses, officers and members of the crew of the "M/T
Tabangao" no less, who identified and pointed to the said
Accused as among those who attacked and seized, the "M/T
Tabangao" on March 2, 1991, at about 6:30 o'clock in the
afternoon, off Lubang Island, Mindoro, with its cargo, and
brought the said vessel, with its cargo, and the officers and
crew of the vessel, in the vicinity of Horsebough Lighthouse,
about sixty-six nautical miles off the shoreline of Singapore
and sold its cargo to the Accused Cheong San Hiong upon
which the cargo was discharged from the "M/T Tabangao" to
the "Navi Pride" for the price of about $500,000.00
(American Dollars) on March 29, and 30, 1991...
xxx
xxx
xxx
The Master, the officers and members of the crew of the
"M/T Tabangao" were on board the vessel with the Accused
and their cohorts from March 2, 1991 up to April 10, 1991 or
for more than one (1) month. There can be no scintilla of
doubt in the mind of the Court that the officers and crew of
the vessel could and did see and identify the seajackers and
their leader. In fact, immediately after the Accused were
taken into custody by the operatives of the National Bureau
of Investigation, Benjamin Suyo, Norberto Senosa, Christian
Torralba and Isaias Wervas executed their "Joint Affidavit"
(Exhibit "B") and pointed to and identified the said Accused
as some of the pirates.
xxx
xxx
xxx
Indeed, when they testified before this Court on their
defense, the three (3) Accused admitted to the Court that
they, in fact, boarded the said vessel in the evening of March
2 1991 and remained on board when the vessel sailed to its,
destination, which turned out to be off the port of Singapore.
(pp. 106-112, Rollo.)
We also agree with the trial court's finding that accused-
appellants' defense of denial is not supported by any hard
evidence but their bare testimony. Greater weight is given to
the categorical identification of the accused by the
prosecution witnesses than to the accused's plain denial of
participation in the commission of the crime (People v.
Baccay, 284 SCRA 296 [1998]). Instead, accused-appellants
Tulin, Loyola, and Infante, Jr. narrated a patently desperate
tale that they were hired by three complete strangers
(allegedly Captain Edilberto Liboon, Second Mate Christian
Torralba, and their companion) while said accused-appellants
were conversing with one another along the seashore at
Apkaya, Balibago, Calatagan, Batangas, to work on board
the "M/T Tabangao" which was then anchored off-
shore. And readily, said accused-appellants agreed to work as
cooks and handymen for an indefinite period of time without
even saying goodbye to their families, without even knowing
their destination or the details of their voyage, without the
personal effects needed for a long voyage at sea. Such
evidence is incredible and clearly not in accord with human
experience. As pointed out by the trial court, it is incredible
that Captain Liboon, Second Mate Torralba, and their
companion "had to leave the vessel at 9:30 o'clock in the
evening and venture in a completely unfamiliar place merely
to recruit five (5) cooks or handymen (p. 113, Rollo)."
Anent accused-appellant Changco's defense of denial
with the alibi that on May 14 and 17, he was at his place of
work and that on April 10, 1991, he was in his house in
Bacoor, Cavite, sleeping, suffice it to state that alibi is
fundamentally and inherently a weak defense, much more so
when uncorroborated by other witnesses (People v. Adora,
275 SCRA 441 [1997]) considering that it is easy to fabricate
and concoct, and difficult to disprove. Accused-appellant
must adduce clear and convincing evidence that, at about
midnight on April 10, 1991, it was physically impossible for
him to have been in Calatagan, Batangas. Changco not only
failed to do this, he was likewise unable to prove that he was
in his place of work on the dates aforestated.
It is doctrinal that the trial court's evaluation of the
credibility of a testimony is accorded the highest respect, for
trial courts have an untrammeled opportunity to observe
directly the demeanor of witnesses and, thus, to determine
whether a certain witness is telling the truth (People v.
Obello, 284 SCRA 79 [1998]).
We likewise uphold the trial court's finding of
conspiracy. A conspiracy exists when two or more persons
come to an agreement concerning the commission of a
felony and decide to commit it (Article 8, Revised Penal
Code). To be a conspirator, one need not participate in every
detail of execution; he need not even take part in every act or
need not even know the exact part to be performed by the
others in the execution of the conspiracy. As noted by the
trial court, there are times when conspirators are assigned
separate and different tasks which may appear unrelated to
one another, but in fact, constitute a whole and collective
effort to achieve a common criminal design.
We affirm the trial court's finding that Emilio Changco,
accused- appellants Tulin, Loyola, and Infante, Jr. and others,
were the ones assigned to attack and seize the "M/T
Tabangao" off Lubang, Mindoro, while accused-appellant
Cecilio Changco was to fetch the master and the members of
the crew from the shoreline of Calatagan, Batangas after the
transfer, and bring them to Imus, Cavite, and to provide the
crew and the officers of the vessel with money for their fare
and food provisions on their way home. These acts had to be
well-coordinated. Accused-appellant Cecilio Changco need
not be present at the time of the attack and seizure of "M/T
Tabangao" since he performed his task in view of an
objective common to all other accused- appellants.
Of notable importance is the connection of accused-
appellants to one another. Accused-appellant Cecilio
Changco is the younger brother of Emilio Changco (aka
Captain Bobby/Captain Roberto Castillo/Kevin Ocampo),
owner of Phil-Asia Shipping Lines. Cecilio worked for his
brother in said corporation. Their residences are
approximately six or seven kilometers away from each other.
Their families are close. Accused-appellant Tulin, on the
other hand, has known Cecilio since their parents were
neighbors in Aplaya, Balibago, Calatagan,
Batangas. Accused-appellant Loyola's wife is a relative of
the Changco brothers by affinity .Besides, Loyola and Emilio
Changco had both been accused in a seajacking case
regarding "M/T Isla Luzon" and its cargo of steel coils and
plates off Cebu and Bohol in 1989. Emilio Changco (aka
Kevin Ocampo) was convicted of the crime while Loyola at
that time remained at large.
As for accused-appellant Hiong, he ratiocinates that he
can no longer be convicted of piracy in Philippine waters as
defined and penalized in Sections 2[d] and 3[a], respectively
of Presidential Decree No. 532 because Republic Act No.
7659 (effective January 1, 1994) which amended Article 122
of the Revised Penal Code, has impliedly superseded
Presidential Decree No. 532. He reasons out that Presidential
Decree No. 532 has been rendered "superfluous or
duplicitous" because both Article 122 of the Revised Penal
Code, as amended, and Presidential Decree No. 532 punish
piracy committed in Philippine waters. He maintains that in
order to reconcile the two laws, the word "any person"
mentioned in Section 1 [d] of Presidential Decree No. 532
must be omitted such that Presidential Decree No. 532 shall
only apply to offenders who are members of the complement
or to passengers of the vessel, whereas Republic Act No.
7659 shall apply to offenders who are neither members of the
complement or passengers of the vessel, hence, excluding
him from the coverage of the law.
Article 122 of the Revised Penal Code, used to provide:
Article 122. Piracy in general and mutiny on the high seas.
-The penalty of reclusion temporal shall be inflicted upon
any person who, on the high seas, shall attack or seize a
vessel or, not being a member of its complement nor a
passenger, shall seize the whole or part of the cargo of said
vessel, its equipment, or personal belongings of its
complement or passengers.
( reason, piracy under the Article 122, as amended, and piracy
Underscoring supplied.)
Article 122, as amended by Republic Act No. 7659
January 1, 1994), reads:
Article 122. Piracy in general and mutiny on the high seas or
in Philippine waters. -The penalty of reclusion perpetua shall
be inflicted upon any person who, on the high seas, or in
Philippine waters, shall attack or seize a vessel or, being
a member of its complement nor a passenger, shall seize the
whole or part of the cargo of said vessel, its equipment, or
personal belongings of its complement or passengers.
(
Underscoring ours)
On the other hand, Section 2 of Presidential Decree No.
532 provides:
SEC. 2. Definition of Terms. - The following shall mean and
be understood, as follows:
d. Piracy. -Any attack upon or seizure of any vessel, or the
taking away of the whole or part thereof or its cargo,
equipment, or the personal belongings of its complement or
passengers, irrespective of the value thereof, by means of
violence against or intimidation of persons or force upon
things, committed by any person. including a passenger or
member of the complement of said vessel in Philippine
waters, shall be considered as piracy. The offenders shall be
considered as pirates and punished as hereinafter provided
(underscoring supplied).
To summarize, Article 122 of the Revised Penal Code,
before its amendment, provided that piracy must be
committed on the high seas by any person not a member of
its complement nor a passenger thereof. Upon its amendment
by Republic Act No. 7659, the coverage of the pertinent
provision was widened to include offenses committed "in
Philippine waters." On the other hand, under Presidential
Decree No. 532 (issued in 1974), the coverage of the law on
piracy embraces any person including "a passenger or
member of the complement of said vessel in Philippine
waters." Hence, passenger or not, a member of the
complement or not, any person is covered by the law.
Republic Act No. 7659 neither superseded nor amended
the provisions on piracy under Presidential Decree No. 532.
There is no contradiction between the two laws. There is
likewise no ambiguity and hence, there is no need to
construe or interpret the law. All the presidential decree did
was to widen the coverage of the law, in keeping with the
intent to protect the citizenry as well as neighboring states
from crimes against the law of nations. As expressed in one
of the "whereas" clauses of Presidential Decree No. 532,
piracy is "among the highest forms of lawlessness
condemned by the penal statutes of all countries." For this
under Presidential Decree No. 532 exist harmoniously as
separate laws.
As regards the contention that the trial court did not
acquire jurisdiction over the person of accused-appellant
Hiong since the crime was committed outside Philippine
waters, suffice it to state that unquestionably, the attack on
and seizure of "M/T Tabangao" (renamed "M/T Galilee" by
the pirates) and its cargo were committed in Philippine
waters, although the captive vessel was later brought by the
pirates to Singapore where its cargo was off-loaded,
transferred, and sold. And such transfer was done under
accused-appellant Hiong's direct supervision. Although
Presidential Decree No. 532 requires that the attack and
seizure of the vessel and its cargo be committed in Philippine
waters, the disposition by the pirates of the vessel and its
cargo is still deemed part of the act of piracy, hence, the
same need not be committed in Philippine waters.
Moreover, piracy falls under Title One of Book Two of
the Revised Penal Code. As such, it is an exception to the
rule on territoriality in criminal law. The same principle
applies even if Hiong, in the instant case, were charged, not
with a violation of qualified piracy under the penal code but
under a special law, Presidential Decree No. 532 which
penalizes piracy in Philippine waters. Verily, Presidential
Decree No. 532 should be applied with more force here since
its purpose is precisely to discourage and prevent piracy in
Philippine waters (People v. Catantan, 278 SCRA 761
[1997]). It is likewise, well-settled that regardless of the law
penalizing the same, piracy is a reprehensible crime against
the whole world (People v. Lol-lo, 43 Phil. 19 [1922]).
However, does this constitute a violation of accused-
appellant's constitutional right to be informed of the nature
and cause of the accusation against him on the ground that he
was convicted as an accomplice under Section 4 of
Presidential Decree No. 532 even though he was charged as
a principal by direct participation under Section 2 of said
law?
The trial court found that there was insufficiency of
evidence showing:
(a) that accused-appellant Hiong directly participated in
the attack and seizure of "M/T Tabangao" and its cargo; (b)
that he induced Emilio Changco and his group in the attack
and seizure of "M/T Tabangao" and its cargo; ( c) and that
his act was indispensable in the attack on and seizure of
"M/T Tabangao" and its cargo. Nevertheless, the trial court
found that accused-appellant Hiong's participation was
indisputably one which aided or abetted Emilio Changco and
his band of pirates in the disposition of the stolen cargo
under Section 4 of Presidential Decree No. 532 which
provides:
SEC. 4. Aiding pirates or highway robbers/brigands or
abetting piracy or highway robbery brigandage. -Any person
who knowingly and in any manner aids or protects pirates or
highway robbers/brigands, such as giving them information
about the movement of police or other peace officers of the
government, or acquires or receives property taken by such
pirates or brigands or in any manner derives any benefit
therefrom; or any person who directly or indirectly abets the
commission of piracy or highway robbery or brigandage,
shall be considered as an accomplice of the principal officers
and be punished in accordance with Rules prescribed by the
Revised Penal Code.
It shall be presumed that any person who does any of the acts
provided in this Section has performed them knowingly,
unless the contrary is proven.
The ruling of the trial court is Within well-settle
jurisprudence that if there is lack of complete evidence of
conspiracy, the liability is that of an accomplice and not as
principal (People v. Tolentino, 40 SCRA 514 [1971]). Any
doubt as to the participation of an individual in the
commission of the crime is always resolved in favor of lesser
responsibility (People v. Corbes, 270 SCRA 465 [1997];
People vs. Elfano, Jr., 125 SCRA 792 [1983]; People v.
Pastores, 40 SCRA 498 [1971]).
Emphasis must also be placed on the last paragraph of
Section 4 of Presidential Decree No 532 which presumes that
any person who does any of the acts provided in said section
has performed them knowingly, unless the contrary is
proven. In the case at bar, accused-appellant Hiong had
failed to overcome the legal presumption that he knowingly
abetted or aided in the commission of piracy, received
property taken by such pirates and derived benefit therefrom.
The record discloses that accused-appellant Hiong aided
the pirates in disposing of the stolen cargo by personally
directing its transfer from "M/T Galilee" to "M/T Navi
Pride". He profited therefrom by buying the hijacked cargo
for Navi Marine Services, Pte., Ltd. (tsn, June 3, 1992, pp.
15-23). He even tested the quality and verified the quantity
of the petroleum products, connived with Navi Marine
Services personnel in falsifying the General Declarations and
Crew List to ensure that the illegal transfer went through,
undetected by Singapore Port Authorities, and supplied the
pirates with food, beer, and other provisions for their
maintenance while in port (tsn, June 3, 1992, pp. 133-134).
We believe that the falsification of the General
Declaration (Arrival and Departure) and Crew List was
accomplished and utilized by accused-appellant Hiong and
Navi Marine Services personnel in the execution of their
scheme to avert detection by Singapore Port Authorities.
Hence, had accused-appellant Hiong not falsified said
entries, the Singapore Port Authorities could have easily
discovered the illegal activities that took place and this
would have resulted in his arrest and prosecution in
Singapore. Moreover, the transfer of the stolen cargo from
"M/T Galilee" to "Navi Pride" could not have been effected.
We completely uphold the factual findings of the trial
court showing in detail accused-appellant Hiong's role in the
disposition of the pirated goods summarized as follows: that
on March 27, 1991, Hiong with Captain Biddy Santos
boarded the "Navi Pride," one of the vessels of the Navi
Marine, to rendezvous with the "M/T Galilee"; that the firm
submitted the crew list of the vessel (Exhibit "8-CSH",
Record) to the port authorities, excluding the name of Hiong;
that the "General Declaration" (for departure) of the "Navi
Pride" for its voyage off port of Singapore (Exhibits "HH"
and "8-A CSH", Record) falsely stated that the vessel was
scheduled to depart at 2200 (10 o'clock in the evening), that
there were no passengers on board, and the purpose of the
voyage was for "cargo operation" and that the vessel was to
unload and transfer 1,900 tons of cargo; that after the transfer
of the fuel from "M/T Galilee" with' Emilio Changco a. k. a.
Captain Bobby a. k. a. Roberto Castillo at the helm, the
surveyor prepared the "Quantity Certificate" (Exhibit "11-C
CSH, Record) stating that the cargo transferred to the "Navi
Pride" was 2,406 gross cubic meters; that although Hiong
was not the Master of the vessel, he affixed his signature on
the "Certificate" above the word "Master" (Exhibit "11-C-2
CSH", Record); that he then paid $150,000.00 but did not
require any receipt for the amount; that Emilio Changco also
did not issue one; and that in the requisite "General
Declaration" upon its arrival at Singapore on March 29,
1991, at 7 o'clock in the evening, (Exhibits "JJ" and "13-A
CSH", Record), it was made to falsely appear that the "Navi
Pride" unloaded 1,700 tons of cargo on the high seas during
said voyage when in fact it acquired from the "M/T Galilee"
2,000 metric tons of diesel oil. The second transfer transpired
with the same irregularities as discussed above. It was
likewise supervised by accused- appellant Cheong from his
end while Emilio Changco supervised the transfer from his
end.
Accused-appellant Hiong maintains that he was merely
following the orders of his superiors and that he has no
knowledge of the illegality of the source of the cargo.
First and foremost, accused-appellant Hiong cannot
deny knowledge of the source and nature of the cargo since
he himself received the same from "M/T Tabangao". Second,
considering that he is a highly educated mariner, he should
have avoided any participation in the cargo transfer given the
very suspicious circumstances under which it was
acquired. He failed to show a single piece of deed or bill of
sale or even a purchase order or any contract of sale for the
purchase by the firm; he never bothered to ask for and
scrutinize the papers and documentation relative to the "M/T
Galilee"; he did not even verify the identity of Captain
Robert Castillo whom he met for the first time nor did he
check the source of the cargo; he knew that the transfer took
place 66 nautical miles off Singapore in the dead of the night
which a marine vessel of his firm did not ordinarily do; it
was also the first time Navi Marine transacted with Paul Gan
involving a large sum of money without any receipt issued
therefor; he was not even aware if Paul Gan was a
Singaporean national and thus safe to deal with. It should
also be noted that the value of the cargo was P40,426,793.87
or roughly more than US$l,000,000.00 (computed at P30.00
to $1, the exchange rate at that time). Manifestly, the cargo
was sold for less than one-half of its value. Accused-
appellant Hiong should have been aware of this irregularity. G.R. No. 172019 February 12, 2007
Nobody in his right mind would go to far away Singapore,
spend much time and money for transportation -only to sell PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
at the aforestated price if it were legitimate sale involved. vs.
This, in addition to the act of falsifying records, clearly BOISAN CABUGATAN y MACARAMBON, Accused-
shows that accused-appellant Hiong was well aware that the Appellant.
cargo that his firm was acquiring was purloined.
DECISION
Lastly, it cannot be correctly said that accused-appellant
was "merely following the orders of his superiors." An CHICO-NAZARIO, J.:
individual is justified in performing an act in obedience to an
order issued by a superior if such order, is for some lawful
For Review is the Decision 1 of the Court of Appeals dated 28
purpose and that the means used by the subordinate to carry
October 2005 in CA-G.R. CR-H.C. No. 00174 entitled,
out said order is lawful (Reyes, Revised Penal Code, Vol. 1,
"People of the Philippines v. Boisan Cabugatan y
1981 ed., p. 212). Notably, the alleged order of Hiong's
Macarambon," affirming the Decision 2 rendered by the
superior Chua Kim Leng Timothy, is a patent violation not
Regional Trial Court of Baguio City, Branch 61, in Criminal
only of Philippine, but of international law. Such violation
Cases No. 20441-R and No. 20442-R, finding appellant
was committed on board a Philippine-operated vessel.
guilty of illegal sale and of illegal possession of
Moreover, the means used by Hiong in carrying out said
methamphetamine hydrochloride more popularly known as
order was equally unlawful. He misled port and immigration
"shabu."
authorities, falsified records, using a mere clerk, Frankie
Loh, to consummate said acts. During the trial, Hiong
presented himself, and the trial court was convinced, that he On 9 August 2002, two Informations were filed against
was an intelligent and articulate Port Captain. These appellant before the Regional Trial Court of Baguio City for
circumstances show that he must have realized the nature violations of Republic Act No. 9165 or the Comprehensive
and the implications of the order of Chua Kim Leng Dangerous Drugs Act of 2002.
Timothy. Thereafter, he could have refused to follow orders
to conclude the deal and to effect the transfer of the cargo to The offense involved in Criminal Case No. 20441-R for
the Navi Pride. He did not do so, for which reason, he must violation of Section 5, Article II, of Republic Act No.
now suffer the consequences of his actions. 91653was allegedly committed as follows:

WHEREFORE, finding the conviction of accused-
appellants justified by the evidence on record, the Court
hereby AFFIRMS the judgment of the trial court in toto.
SO ORDERED.
That on or about the 8th day of August, 2002 in the City of
Baguio, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused and without any
authority of law, did then and there willfully, unlawfully and
feloniously SELL, DISTRIBUTE and/or DELIVER a small
transparent plastic heat sealed sachet containing white
crystalline substance "Shabu" weighing 0.1 gram for ONE
HUNDRED FIFTY PESOS (P150.00), Philippine Currency
to PO3 Benedict Del-ong, a member of the Philippine
National Police who acted as poseur-buyer, knowing fully
well that said methamphetamine hydrochloride (SHABU), is
a regulated [drug], in violation of the aforementioned
provision of law.4

On the other hand, the Information relative to Criminal Case

No. 20442-R for infringement of Section 11, Article II of the
same law5 reads:
That on or about 8th day of August, 2002 in the City of
Baguio, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, did then and
there willfully, unlawfully and feloniously have in his/her
possession and control one transparent plastic containing
four (4) small transparent plastic sachet containing white
crystalline substance "Shabu" weighing approximately 0.2
gm., marked as "RUA" "JF"; 0.2 gm marked "RUA" "JF";
0.1 gm. Marked "RUA" "JF" and 0.1 gm marked "RUA"
"JF", respectively; a regulated drug, without the
corresponding license or prescription, in violation of the
aforecited provision of law.6
During his arraignment on 21 August 2002, appellant
pleaded not guilty to both charges.7
On 17 September 2002, the pre-trial of the cases was held at
which time appellant admitted the existence of the following
documents:
1. Certification of Preliminary test on the five sachets
marked as Exh. A and B as to the findings of the positive
result for methamphetamine hydrochloride.
2. Chemistry Report No. D-070-2002
3. Buy-bust money
4. Request for Drug Test
5. Booking Sheet and Arrest Report of the accused.8
During the trial of the cases, the prosecution presented the
testimonies of PO2 Benedict Del-ong, PO2 Gilbert Bulalit,
and PO3 Roy Aguirre who were all members of the Baguio
City Police.
The prosecutions version of the facts shows that on 8 August
2002, a reliable civilian informant, accompanied by a
barangay kagawad, went to the Station 7 of the Baguio City
Police. The informant purportedly advised Police Chief
Inspector Eduardo Z. Garcia that a person by the name of
Boisan was engaged in the illegal sale of shabu at Villacor
Billiard Hall located on Otek St., Baguio City.9
Police Chief Inspector Garcia immediately formed a team to
conduct a buy-bust operation to apprehend Boisan with PO2
Del-ong as the designated poseur-buyer.10 Police Chief
Inspector Garcia gave PO2 Bulalit one piece of P100.00 bill
and a P50.00 bill. PO2 Bulalit proceeded to have the bills
photocopied and authenticated by the City Prosecutors
Office.11
Later in the afternoon, the team proceeded to Villacor
Billiard Hall. PO3 Aguirre and PO2 Bulalit positioned
themselves inside a public utility jeepney parked near the
entrance of the billiard hall. The other member of the team,
PO1 Eugene Raymundo, stood about four to five meters
away.>12
When they reached the designated place, they were met by a
man wearing a black bull cap and a gray sweatshirt with
collar. This person was identified during the trial to be
appellant. After the civilian informant introduced PO2 Del-
ong and appellant to each other, the latter asked PO2 Del-ong
how much worth of shabu was he willing to purchase. PO2
Del-ong replied that he had only P150.00 with him. After he
handed this sum to appellant, the latter drew from his right
front pocket a small sachet which he gave to PO2 Del-ong.
PO2 Del-ong then examined the content of the sealed plastic
sachet. Certain that what appellant gave him was shabu, PO2
Del-ong scratched his head using his left hand to alert his
fellow team members that the sale of shabu was already
consummated. Thereupon, the rest of the buy-bust team
rushed towards appellant and informed him that he was
being arrested. They likewise advised him of his
constitutional rights.13
PO3 Aguirre then frisked appellant and recovered from the
latter four small transparent sachets containing crystalline
substance.
Appellant was thereafter taken to the police station where the
buy-bust team prepared the arrest report, booking sheet, and
their joint affidavit. They also made a request for the initial
testing of the evidence they confiscated from appellant. The
task of conducting the preliminary test was performed by
PO2 Joseph Filog who issued a certification dated 8 August
2002, the pertinent portion of which states:
The purpose of which is to determine the presence of
regulated drug on the above specimen.
That by using the "SIMONS REAGENT" to the white
crystalline substance from the five (5) plastic heat sachets,
gave POSITIVE result of "DARK BLUE COLOR" which
indicates the presence of Methamphetamine Hydrochloride,
an active component of Shabu, a regulated drug.14
The sachets of white crystalline substance were also
examined by the Regional Crime Laboratory Office of the
Philippine National Police. This test yielded the following
results:
FINDINGS:
Qualitative examination conducted on the above-stated
specimens (Exhs. "A", B-1 thru B-4) gave POSITIVE result
to the test for the presence of Methamphetamine
hydrochloride (SHABU), a regulated drug. x x x
CONCLUSION:
Exhs. "A", B-1 thru B-4 contain Methamphetamine
hydrochloride, a regulated drug. x x x.15
Appellant was likewise subjected to a drug test which
allegedly showed that he was a shabu user.16
Expectedly, accused presented an entirely different version
of what transpired during that afternoon and claimed that the
buy-bust never took place.17 According to appellant, he is a
Maranaw who earns a living by peddling sunglasses in
Baguio City. At the time the supposed buy-bust operation
took place, he was playing billiard with two others at the
Villacor Billiard Hall when three men in civilian clothes
arrived.18 Appellant identified two of the men who came
inside the billiard hall to be PO2 Del-ong and PO3
Aguirre.19
The group of PO2 Del-ong allegedly frisked appellants
fellow players and was able to recover a single plastic sachet
from one of them. PO2 Del-ong, who was then standing
beside appellant, held the latters hand, pointed a gun at his
head, and warned him not to do anything or else he would be
shot.20 PO3 Aguirre then called for a mobile car and
appellant, together with his two companions, was brought to
the Station 7 of the Baguio City Police.21 In the police
station, appellant was handcuffed to the window rail. After a
few hours, one of the arresting officers came to see him and
asked appellant if he could settle his case by paying a sum of
money to the police22or he could just identify others who are
engaged in drug trade in Baguio City.23 Appellant likewise
claimed that he learned later on that the two others who were
arrested with him were able to settle their cases and had been
set free.24
As for the result of his drug test, appellant stated that he was
a drug user while he was still residing in Mindanao and that
he decided to move to Baguio City to evade the habit.25
The prosecution presented PO2 Del-ong as a rebuttal
witness. He stated that while they were waiting for the
mobile patrol car after the appellants arrest, a minor boy and
a companion approached appellant and asked if he still had
drugs to sell.26 The buy-bust team then decided to arrest the
two would-be-buyers. As the drug test of the boy revealed
that he was a drug user, he was referred to the Youth and
Women Section of the Baguio City Police Office. They were,
however, compelled to release his companion as his drug test
established that he was not a drug user and because he
claimed that he had just met the minor boy that afternoon.27
On 1 December 2003, the trial court rendered its decision
sustaining the prosecution, thus:
WHEREFORE, judgment is rendered finding the accused
GUILTY as charged on both counts and he is hereby
sentenced as follows: a) in Criminal Case No. 20441-R, to
Life Imprisonment and to pay a fine of P1,000,000.00, and
b) in Criminal Case No. 20442-R, to a prison term of twelve
(12) years and one (1) day to fifteen (15) years, to pay a fine
of P300,000.00, and the costs.28
Appellant seasonably filed a Notice of Appeal elevating the
case to this Court.29
As the trial court meted a penalty of life imprisonment, the
case was transferred to the Court of Appeals for appropriate
action and disposition pursuant to our ruling in People v.
Mateo.30
On 28 October 2005, the Court of Appeals rendered the now
assailed decision affirming in toto the decision of the trial
court.31 Appellant is again before us proclaiming his
innocence.32
Appellant assigns the following errors:
I
THE TRIAL COURT GRAVELY ERRED IN GIVING
FULL FAITH AND CREDENCE TO THE TESTIMONIES
OF THE PROSECUTION WITNESSES AND IN
CONVICTING THE ACCUSED-APPELLANT FOR
VIOLATION OF SECTIONS 5 AND 11, ARTICLE II OF
REPUBLIC ACT NO. 9165.
II
THE TRIAL COURT GRAVELY ERRED IN FINDING
THE ACCUSED-APPELLANT GUILTY BEYOND
REASONABLE DOUBT OF THE OFFENSES
CHARGED.33
Appellant claims that the prosecution failed to establish his
guilt beyond reasonable doubt. He faults the trial court for
giving "full faith and credence to the [testimonies] of the
prosecution witnesses"34 even when he had categorically
denied the occurrence of any buy-bust operation. He also
assails his arrest by the Baguio City Police as it was carried
out without a valid warrant.35 As his arrest was illegal, it
follows that the search conducted by the police upon his
person was similarly unlawful.36
Appellants arguments fail to persuade.
It is a fundamental rule that findings of the trial courts which
are factual in nature and which involve the credibility of
witnesses are accorded respect when no glaring errors, gross
misapprehension of facts and speculative, arbitrary and
unsupported conclusions can be gathered from such findings.
The reason for this, being, 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.37 The rule finds an even more
stringent application where said findings are sustained by the
Court of Appeals as in this case.38
Considering, however, that at stake is no less than the liberty
of appellant, we thoroughly examined the entire records of
this case. Unfortunately for appellant, we failed to identify
any error committed by the trial court both in its appreciation
of the evidence presented before it and in the conclusion it
reached.
In the prosecution of offenses involving this provision of the
statute, it is necessary that the following elements be
established: (1) the identity of the buyer and seller, object,
and consideration; and (2) the delivery of the thing sold and
the payment therefore.39 What is material to the prosecution
for illegal sale of dangerous drugs is the proof that the
transaction or sale actually took place, coupled with the
presentation in court of evidence of corpus delicti.40
In this case, all the elements of the crime have been
sufficiently established. The witnesses for the prosecution
were able to prove that the buy-bust operation indeed took
place and the shabu subject of the sale was brought and duly
identified in court. The poseur-buyer (PO2 Del-ong)
positively identified appellant as the one who sold to him a
packet of white crystalline substance41 which was later
confirmed by two chemical examinations to be shabu.42
As recalled by the PO2 Del-ong, the designated poseur-
buyer, the events that led to the apprehension of appellant are
as follows:
These pronouncements were corroborated on their material
points by PO2 Bulalit and PO3 Aguirre whose respective
testimonies were just as straightforward and candid as that of
PO2 Del-ongs.
For his part, appellant could not offer any viable defense
except to claim that he was a victim of frame-up and
extortion by the police officers. However, like alibi, we view
the defense of frame-up with disfavor as it can easily be
concocted and is commonly used as a standard line of
defense in most prosecutions arising from illegal sale of
drugs.44 For the claim of frame-up to prosper, the defense
must present clear and convincing evidence to overcome the
presumption that the arresting policemen performed their
duties in a regular and proper manner.45
Appellant failed to substantiate his claim that he was an
unfortunate prey to a supposed ploy concocted by the police.
By all indications, he did not know anyone of the members
of the buy-bust team which apprehended him. There was,
therefore, no motive for them to frame him up. Absent any
proof of motive to falsely accuse him 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 that he was framed-up.46 In other words, the
categorical and convincing testimonies of the policemen,
backed up by physical evidence, overcome the
unsubstantiated claim of ill-motive by appellant.
In this jurisdiction, the conduct of buy-bust operation is a
common and accepted mode of apprehending those involved
in illegal sale of prohibited or regulated drugs. It has been
proven to be an effective way of unveiling the identities of
drug dealers and of luring them out of obscurity. Thus, unless
the defense could persuade us otherwise, we are inclined to
confer full credit and faith to the testimonies of the members
of the buy-bust team as regards the conduct of their
operation.1awphi1.net
Appellants claim that his warrantless arrest was invalid is
similarly devoid of merit. The rule is settled that an arrest
made after an entrapment does not require a warrant
inasmuch as it is considered a valid warrantless arrest
pursuant to Rule 113, Section 5(a) of the Rules of
Court47 which states:
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.
As the legitimacy of the buy-bust operation is beyond
question, the subsequent warrantless arrest as well as the
warrantless search and seizure was permissible, thus:
This interdiction against warrantless searches and seizures,
however, is not absolute and such warrantless searches and
seizures have long been deemed permissible by
jurisprudence in instances of (1) search of moving vehicles,
(2) seizure in plain view, (3) customs searches, (4) waiver or
consented searches, (5) stop and frisk situations (Terry
search), and search incidental to a lawful arrest. The last
includes a 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 arrest, to wit: (1) arrest in flagrante delicto, (2)
arrest effected in hot pursuit, and (3) arrest of escaped
prisoners.48 (Emphasis supplied.)
Having established the guilt of the appellant for the crimes
charged, we shall now proceed to a determination of the
appropriate penalties to be imposed upon him.
The unauthorized sale of shabu carries with it 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).49 On the other hand, the unauthorized
possession of less than five grams of said substance is
penalized with a prison term of twelve (12) years and one (1)
day to twenty (20) years and a fine of Three hundred
thousand pesos (P300,000.00) up to Four hundred thousand
pesos (P400,000.00).50
Section 98, Article XIII of Republic Act No. 9165 expressly
provides for the limited application of the provisions of the
Revised Penal Code on said law. This section reads:
SEC. 98. Limited Applicability of the Revised Penal Code.
Notwithstanding any law, rule or regulation to the contrary,
the provisions of the Revised Penal Code (Act No. 3815), as
amended, shall not apply to the provisions of this Act, except
in the case of minor offenders. Where the offender is a
minor, the penalty for acts punishable by life imprisonment
to death provided herein shall be reclusion perpetua to death.
Under the aforesaid section, the provisions of the Revised
Penal Code shall no longer apply to the provisions of
Republic Act No. 9165 except when the offender is a minor.
Thus, Article 63(2) of the Revised Penal Code shall not be
used in the determination of the penalty to be imposed on the
accused. Since Section 98 of the said law contains the word
"shall," the non-applicability of the Revised Penal Code
provisions is mandatory, subject only to the exception in case
the offender is a minor.
With the advent of Republic Act No. 9165, the Courts, in
determining the appropriate minimum and maximum of the
penalty to be meted out to offenders, shall be guided solely
by the pertinent part of the Indeterminate Sentence Law, to
wit:
SECTION 1. xxx; and if the offense is punished by any other
law, the court shall sentence the accused to an indeterminate
sentence, the maximum term of which shall not exceed the
maximum fixed by said law and the minimum shall not be
less than the minimum term prescribed by the same.
In the imposition of the proper penalty, the courts, taking into
account the circumstances attendant in the commission of the
offense, are given discretion to impose either life
imprisonment or death, and the fine as provided for by law.
In light, however, of the effectivity of Republic Act No. 9346
entitled, "An Act Prohibiting the Imposition of Death Penalty
in the Philippines," the imposition of the supreme penalty of
death shall only be life imprisonment and fine. Hence, the
penalty of life imprisonment imposed on appellant in
Criminal Case No. 20441-R is proper. We, however, find the
fine of P1,000,000.00 to be excessive and hereby reduce the
same to P500,000.00 considering that the records do not
reveal any prior arrest or conviction of appellant for a drug-
related offense.
We likewise affirm the conviction and penalty of
imprisonment of twelve (12) years and one (1) day to fifteen
(15) years and the fine of P300,000.00 meted out by the trial
court with respect to Criminal Case No. 20442-R.
WHEREFORE, premises considered, the Decision dated 28
October 2005 of the Court of Appeals in CA-G.R. CR-H.C.
No. 00174, affirming, in toto, the Decision of the Regional
Trial Court of Baguio City, Branch 61 is hereby AFFIRMED
with MODIFICATION in that the fine imposed on appellant
in Criminal Case No. 20441-R is reduced to P500,000.00.
No costs.
SO ORDERED.
G.R. No. 197291 April 3, 2013
DATU ANDAL AMPATUAN JR., Petitioner,
vs.
SEC. LEILA DE LIMA, as Secretary of the
Department of Justice, CSP CLARO ARELLANO, as
Chief State Prosecutor, National Prosecution
Service, and PANEL OF PROSECUTORS OF THE
MAGUINDANAO MASSACRE, headed by RSP
PETER MEDALLE, Respondents.
DECISION
BERSAMIN, J.:
In matters involving the exercise of judgment and
discretion, mandamus cannot be used to direct the
manner or the particular way the judgment and
discretion are to be exercised. Consequently, the
Secretary of Justice may be compelled by writ of
mandamus to act on a letter-request or a motion to
include a person in the information, but may not be
compelled by writ of mandamus to act in a certain way,
i.e., to grant or deny such letter-request or motion.
The Case
This direct appeal by petition for review on certiorari
has been taken from the final order issued on June 27,
2011 in Civil Case No. 10-124777 1 by the Regional Trial
Court (RTC), Branch 26, in Manila, dismissing
petitioners petition for mandamus.2
Antecedents
History will never forget the atrocities perpetrated on
November 23, 2009, when 57 innocent civilians were
massacred in Sitio Masalay, Municipality of Ampatuan,
Maguindanao Province. Among the principal suspects
was petitioner, then the Mayor of the Municipality of
Datu Unsay, Maguindanao Province. Inquest
proceedings were conducted against petitioner on
November 26, 2009 at the General Santos (Tambler)
Airport Lounge, before he was flown to Manila and
detained at the main office of the National Bureau of
Investigation (NBI). The NBI and the Philippine
National Police (PNP) charged other suspects,
numbering more than a hundred, for what became
aptly known as the Maguindanao massacre.3
Through Department Order No. 948, then Secretary of
Justice Agnes Devanadera constituted a Special Panel
of Prosecutors to conduct the preliminary investigation.
On November 27, 2009, the Department of Justice
(DOJ) resolved to file the corresponding informations
for murder against petitioner, and to issue subpoenae
to several persons.4 On December 1, 2009, 25
informations for murder were also filed against
petitioner in the Regional Trial Court, 12th Judicial
Region, in Cotabato City.5
On December 3, 2009, Secretary of Justice
Devanadera transmitted her letter to Chief Justice
Puno requesting the transfer of the venue of the trial of
the Maguindanao massacre from Cotabato City to
Metro Manila, either in Quezon City or in Manila, to
prevent a miscarriage of justice. 6 On December 8,
2009, the Court granted the request for the transfer of
venue.7 However, on December 9, 2009, but prior to
the transfer of the venue of the trial to Metro Manila,
the Prosecution filed a manifestation regarding the
filing of 15 additional informations for murder against
petitioner in Branch 15 of the Cotabato City RTC. 8 Later
on, additional informations for murder were filed
against petitioner in the RTC in Quezon City, Branch
211, the new venue of the trial pursuant to the
resolution of the Court.9
The records show that petitioner pleaded not guilty to
each of the 41 informations for murder when he was
arraigned on January 5, 2010, 10 February 3, 2010,11 and
July 28, 2010.12
In the joint resolution issued on February 5, 2010, the
Panel of Prosecutors charged 196 individuals with
multiple murder in relation to the Maguindanao
massacre.13 It appears that in issuing the joint
resolution of February 5, 2010 the Panel of Prosecutors
partly relied on the twin affidavits of one Kenny
Dalandag, both dated December 7, 2009.14
On August 13, 2010, Dalandag was admitted into the
Witness Protection Program of the DOJ. 15 On
September 7, 2010, the QC RTC issued its amended
pre-trial order,16 wherein Dalandag was listed as one of
the Prosecution witnesses.17
On October 14, 2010, petitioner, through counsel,
wrote to respondent Secretary of Justice Leila De Lima
and Assistant Chief State Prosecutor Richard Fadullon
to request the inclusion of Dalandag in the informations
for murder considering that Dalandag had already
confessed his participation in the massacre through his
two sworn declarations.18 Petitioner reiterated the
request twice more on October 22, 201019 and
November 2, 2010.20
By her letter dated November 2, 2010, 21 however,
Secretary De Lima denied petitioners request.
Accordingly, on December 7, 2010, petitioner brought a
petition for mandamus in the RTC in Manila (Civil Case
No. 10-124777),22 seeking to compel respondents to
charge Dalandag as another accused in the various
murder cases undergoing trial in the QC RTC.
On January 19, 2011,23 the RTC in Manila set a pre-trial
conference on January 24, 2011 in Civil Case No. 10-
124777. At the close of the pre-trial, the RTC in Manila
issued a pre-trial order.
In their manifestation and motion dated February 15,
201124 and February 18, 2011,25 respondents
questioned the propriety of the conduct of a trial in a
proceeding for mandamus. Petitioner opposed.
On February 15, 2011, petitioner filed a motion for the
production of documents,26 which the RTC in Manila
granted on March 21, 2011 after respondents did not
file either a comment or an opposition.
Respondents then sought the reconsideration of the
order of March 21, 2011.
On March 21, 2011,27 the RTC in Manila issued a
subpoena to Dalandag, care of the Witness Protection
Program of the DOJ, requiring him to appear and testify
on April 4, 2011 in Civil Case No. 10-124777.
On April 4, 2011, respondents moved to quash the
subpoena.28 Petitioner opposed the motion to quash the
subpoena on April 15, 2011. 29 The parties filed other
papers, specifically, respondents their reply dated April
26, 2011;30 petitioner an opposition on May 12,
2011;31 and respondents another reply dated May 20,
2011.32
On June 27, 2011,33 the RTC of Manila issued the
assailed order in Civil Case No. 10-124777 dismissing
the petition for mandamus.34
Hence, this appeal by petition for review on certiorari.
Issues
Petitioner raises the following issues, to wit:
1. WHETHER THE PUBLIC RESPONDENTS MAY BE
COMPELLED BY MANDAMUS TO INVESTIGATE
AND PROSECUTE KENNY DALANDAG AS AN
ACCUSED IN THE INFORMATIONS FOR MULTIPLE
MURDER IN THE MAGUINADANAO MASSACRE
CASES IN LIGHT OF HIS ADMITTED PARTICIPATION
THEREAT IN AFFIDAVITS AND OFFICIAL RECORDS
FILED WITH THE PROSECUTOR AND THE QC RTC;
and,
2. WHETHER THE SUBSEQUENT INCLUSION OF resolution recommending such number of individuals to
KENNY DALANDAG IN THE WITNESS PROTECTION be charged with multiple murder, but only seeks to
PROGRAM JUSTIFIES EXCLUSION AS AN have Dalandag be also investigated and charged as
ACCUSED AND HIS NON-INDICTMENT FOR HIS one of the accused based because of his own
COMPLICITY IN THE MAGUINDANAO MASSACRE admissions in his sworn declarations. However, his
NOTWITHSTANDING ADMISSIONS MADE THAT HE exclusion as an accused from the informations did not
TOOK PART IN ITS PLANNING AND EXECUTION.35 at all amount to grave abuse of discretion on the part of
the Panel of Prosecutors whose procedure in excluding
The crucial issue is whether respondents may be Dalandag as an accused was far from arbitrary,
compelled by writ of mandamus to charge Dalandag as capricious, whimsical or despotic. Section 2, Rule 110
an accused for multiple murder in relation to the of the Rules of Court, which requires that "the
Maguindanao massacre despite his admission to the complaint or information shall be xxx against all
Witness Protection Program of the DOJ. persons who appear to be responsible for the offense
involved," albeit a mandatory provision, may be subject
Ruling of some exceptions, one of which is when a participant
in the commission of a crime becomes a state witness.
The appeal lacks merit.
The two modes by which a participant in the
commission of a crime may become a state witness
The prosecution of crimes pertains to the Executive
are, namely: (a) by discharge from the criminal case
Department of the Government whose principal power
pursuant to Section 17 of Rule 119 of the Rules of
and responsibility are to see to it that our laws are
Court; and (b) by the approval of his application for
faithfully executed. A necessary component of the
admission into the Witness Protection Program of the
power to execute our laws is the right to prosecute their
DOJ in accordance with Republic Act No. 6981 (The
violators. The right to prosecute vests the public
Witness Protection, Security and Benefit Act). 39 These
prosecutors with a wide range of discretion the
modes are intended to encourage a person who has
discretion of what and whom to charge, the exercise of
witnessed a crime or who has knowledge of its
which depends on a smorgasbord of factors that are
commission to come forward and testify in court or
best appreciated by the public prosecutors.36
quasi-judicial body, or before an investigating authority,
by protecting him from reprisals, and shielding him from
The public prosecutors are solely responsible for the economic dislocation.
determination of the amount of evidence sufficient to
establish probable cause to justify the filing of
These modes, while seemingly alike, are distinct and
appropriate criminal charges against a respondent.
separate from each other.
Theirs is also the quasi-judicial discretion to determine
whether or not criminal cases should be filed in court. 37
Under Section 17, Rule 119 of the Rules of Court, the
discharge by the trial court of one or more of several
Consistent with the principle of separation of powers
accused with their consent so that they can be
enshrined in the Constitution, the Court deems it a
witnesses for the State is made upon motion by the
sound judicial policy not to interfere in the conduct of
Prosecution before resting its case. The trial court shall
preliminary investigations, and to allow the Executive
require the Prosecution to present evidence and the
Department, through the Department of Justice,
sworn statements of the proposed witnesses at a
exclusively to determine what constitutes sufficient
hearing in support of the discharge. The trial court must
evidence to establish probable cause for the
ascertain if the following conditions fixed by Section 17
prosecution of supposed offenders. By way of
of Rule 119 are complied with, namely: (a) there is
exception, however, judicial review may be allowed
absolute necessity for the testimony of the accused
where it is clearly established that the public prosecutor
whose discharge is requested; (b) there is no other
committed grave abuse of discretion, that is, when he
direct evidence available for the proper prosecution of
has exercised his discretion "in an arbitrary, capricious,
the offense committed, except the testimony of said
whimsical or despotic manner by reason of passion or
accused; (c) the testimony of said accused can be
personal hostility, patent and gross enough as to
substantially corroborated in its material points; (d) said
amount to an evasion of a positive duty or virtual
accused does not appear to be most guilty; and (e)
refusal to perform a duty enjoined by law." 38
said accused has not at any time been convicted of any
offense involving moral turpitude.
The records herein are bereft of any showing that the
Panel of Prosecutors committed grave abuse of
On the other hand, Section 10 of Republic Act No.
discretion in identifying the 196 individuals to be
6981 provides:
indicted for the Maguindanao massacre. It is notable in
this regard that petitioner does not assail the joint
Section 10. State Witness. Any person who has
participated in the commission of a crime and desires
to be a witness for the State, can apply and, if qualified
as determined in this Act and by the Department, shall
be admitted into the Program whenever the following
circumstances are present:
a. the offense in which his testimony will be used is a
grave felony as defined under the Revised Penal Code
or its equivalent under special laws;
b. there is absolute necessity for his testimony;
c. there is no other direct evidence available for the
proper prosecution of the offense committed;
d. his testimony can be substantially corroborated on
its material points;
e. he does not appear to be most guilty; and
f. he has not at any time been convicted of any crime
involving moral turpitude.
An accused discharged from an information or criminal
complaint by the court in order that he may be a State
Witness pursuant to Section 9 and 10 of Rule 119 of
the Revised Rules of Court may upon his petition be
admitted to the Program if he complies with the other
requirements of this Act. Nothing in this Act shall
prevent the discharge of an accused, so that he can be
used as a State Witness under Rule 119 of the Revised
Rules of Court.
Save for the circumstance covered by paragraph (a) of
Section 10, supra, the requisites under both rules are
essentially the same. Also worth noting is that an
accused discharged from an information by the trial
court pursuant to Section 17 of Rule 119 may also be
admitted to the Witness Protection Program of the DOJ
provided he complies with the requirements of Republic
Act No. 6981.
A participant in the commission of the crime, to be
discharged to become a state witness pursuant to Rule
119, must be one charged as an accused in the
criminal case. The discharge operates as an acquittal
of the discharged accused and shall be a bar to his
future prosecution for the same offense, unless he fails
or refuses to testify against his co-accused in
accordance with his sworn statement constituting the
basis for his discharge. 40The discharge is expressly left
to the sound discretion of the trial court, which has the
exclusive responsibility to see to it that the conditions
prescribed by the rules for that purpose exist.41
While it is true that, as a general rule, the discharge or
exclusion of a co-accused from the information in order
that he may be utilized as a Prosecution witness rests
upon the sound discretion of the trial court, 42 such
discretion is not absolute and may not be exercised
arbitrarily, but with due regard to the proper
administration of justice.43 Anent the requisite that there
must be an absolute necessity for the testimony of the
accused whose discharge is sought, the trial court has
to rely on the suggestions of and the information
provided by the public prosecutor. The reason is
obvious the public prosecutor should know better
than the trial court, and the Defense for that matter,
which of the several accused would best qualify to be
discharged in order to become a state witness. The
public prosecutor is also supposed to know the
evidence in his possession and whomever he needs to
establish his case,44 as well as the availability or non-
availability of other direct or corroborative evidence,
which of the accused is the most guilty one, and the
like.45
On the other hand, there is no requirement under
Republic Act No. 6981 for the Prosecution to first
charge a person in court as one of the accused in order
for him to qualify for admission into the Witness
Protection Program. The admission as a state witness
under Republic Act No. 6981 also operates as an
acquittal, and said witness cannot subsequently be
included in the criminal information except when he
fails or refuses to testify. The immunity for the state
witness is granted by the DOJ, not by the trial court.
Should such witness be meanwhile charged in court as
an accused, the public prosecutor, upon presentation to
him of the certification of admission into the Witness
Protection Program, shall petition the trial court for the
discharge of the witness.46 The Court shall then order
the discharge and exclusion of said accused from the
information.47
The admission of Dalandag into the Witness Protection
Program of the Government as a state witness since
August 13, 2010 was warranted by the absolute
necessity of his testimony to the successful prosecution
of the criminal charges. Apparently, all the conditions
prescribed by Republic Act No. 6981 were met in his
case. That he admitted his participation in the
commission of the Maguindanao massacre was no
hindrance to his admission into the Witness Protection
Program as a state witness, for all that was necessary
was for him to appear not the most guilty. Accordingly,
he could not anymore be charged for his participation
in the Maguindanao massacre, as to which his
admission operated as an acquittal, unless he later on
refuses or fails to testify in accordance with the sworn
statement that became the basis for his discharge
against those now charged for the crimes.
Mandamus shall issue when any tribunal, corporation, SO ORDERED.
board, officer or person unlawfully neglects the
performance of an act that the law specifically enjoins
as a duty resulting from an office, trust, or station. It is
proper when the act against which it is directed is one
addressed to the discretion of the tribunal or officer. In
matters involving the exercise of judgment and
discretion, mandamus may only be resorted to in order
to compel respondent tribunal, corporation, board,
officer or person to take action, but it cannot be used to
direct the manner or the particular way discretion is to
be exercised,48or to compel the retraction or reversal of
an action already taken in the exercise of judgment or
discretion.49

As such, respondent Secretary of Justice may be

compelled to act on the letter-request of petitioner, but
may not be compelled to act in a certain way, i.e., to
grant or deny such letter-request. Considering that
respondent Secretary of Justice already denied the
letter-request, mandamus was no longer available as
petitioner's recourse.

WHEREFORE, the Court DENIES the petition for

review on certiorari; AFFIRMS the final order issued on
June 27, 2011 in Civil Case No. 10-124777 by the
Regional Trial Court in Manila; and ORDERS petitioner
to pay the costs of suit.