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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 negligence in awarding the BOT project to an unlicensed and
gross negligence were not proven by the respondent. He financially unqualified contractor.
stresses that there was substantial compliance with the
requirements of R.A. No. 7718, and while it is true that It bears stressing that the offense defined under Section 3 (e)
petitioner may have deviated from some of the procedures of R.A. No. 3019 may be committed even if bad faith is not
outlined in the said law, the essential purpose of the law attendant.2 Thus, even assuming that petitioner did not act in
that a project proposal be properly evaluated and that parties bad faith, his negligence under the circumstances was not
other than the opponent be given opportunity to present their only gross but also inexcusable.3 Submission of documents
proposal was accomplished. The Sandiganbayan therefore such as contractors license and company profile are
seriously erred when it immediately concluded that all minimum legal requirements to enable the government to
actions of petitioner were illegal and irregular. Petitioner properly evaluate the qualifications of a BOT proponent. It
maintains such actions are presumed to be regular and the was unthinkable for a local government official, especially
burden of proving otherwise rests on the respondent. one with several citations and awards as outstanding local
Because all the transactions were done by him with the executive, to have allowed API to submit a BOT proposal
authority of the Sangguniang Bayan, petitioner argues that and later award it the contract despite lack of a contractors
there can be no dispute that he endeavored in good faith to license and proof of its financial and technical capabilities,
comply with the requirements of R.A No. 7718. Moreover, relying merely on a piece of information from a news item
petitioner asserts that the non-inclusion of all the other about said contractors ongoing mall construction project in
members of the Sangguniang Bayan denied him the equal another municipality and verbal representations of its
protection of the laws. president.

In compliance with the directive of this Court, the Solicitor In his testimony at the trial, petitioner admitted that after the
General filed his Comment asserting that petitioner was awarding of the contract to API, the latter did not comply
correctly convicted of Violation of Section 3(e) of R.A. No. with the posting of notices and submission of requirements.
3019. The Solicitor General stressed that the findings of the He simply cited the reason given by API for such non-
Sandiganbayan and this Court that the requirements of the compliance, i.e., that the BOT law does not provide for such
Build-Operate-Transfer (BOT) law and its implementing requirements. This clearly shows petitioners indifference
rules have not been followed in the bidding and award of the and utter disregard of the strict requirements of the BOT law
contract to Australian-Professional, Inc. (API) were based on and implementing rules, which as local chief executive, he is
the documents of the project which have not been questioned mandated to follow and uphold. Petitioners reliance on the
by petitioner. Thus, despite petitioners claim of substantial representations and statements of the contractor on the
compliance and APIs proposal being "complete," it is compliance with legal requirements is an unacceptable
undisputed that it did not include the required company excuse for his gross negligence in the performance of his
profile of the contractor and that the publication of the official duties. He must now face the consequences of his
invitation for comparative proposals, as found by this Court, decisions and acts relative to the failed project in violation of
was defective. These findings supported by the evidence on the law.
record were shown to have resulted in the failure to assess
the actual experience and financial capacity of API to of rival The substantial compliance rule is defined as "compliance
proposals. Finally, the fact that the Sangguniang Bayan with the essential requirements, whether of a contract or of a
members were not included in the charge does not negate the statute."4 Contrary to petitioners submission, his gross
guilt of petitioner who had the power and discretion over the negligence in approving APIs proposal notwithstanding its
implementation of the Wag-wag Shopping Mall project and failure to comply with the minimum legal requirements
not simply to execute the resolutions passed by the prevented the Sangguniang Bayan from properly evaluating
Sangguniang Bayan approving the contract award to API. said proponents financial and technical capabilities to
The facts established in the decision of the Sandiganbayan undertake the BOT project. Such gross negligence was
bear great significance on petitioners role in the bidding and evident from the taking of shortcuts in the bidding process by
contract award to API, which also clearly showed that shortening the period for submission of comparative
petitioner as local chief executive was totally remiss in his proposals, non-observance of Investment Coordinating
duties and functions. Committee of the National Economic Development
Authority approval for the Wag-wag Shopping Mall Project,
We find no cogent reason for reversal or modification of our publication in a newspaper which is not of general
decision which exhaustively discussed the afore-cited issues circulation, and accepting an incomplete proposal from API.
being raised anew by the petitioner. These forestalled a fair opportunity for other interested
parties to submit comparative proposals. Petitioners
Notably, petitioners invocation of good faith deserves scant argument that there was substantial compliance with the law
consideration in the light of established facts, as found by the thus fails. The essential requirements of the BOT law were
Sandiganbayan and upheld by this Court, clearly showing not at all satisfied as in fact they were sidestepped to favor
that he acted with manifest partiality and gross inexcusable the lone bidder, API.
Petitioner nonetheless reiterates his position that he cannot prosecutor, and the non-inclusion of other guilty persons is
be held liable for such acts in violation of the law since there irrelevant to the case against the accused.6 But more
was "substantial basis" for the Municipal Government of important, petitioner failed to demonstrate a discriminatory
Muoz to believe that API had the expertise and capability to purpose in prosecuting him alone despite the finding of the
implement the proposed Wag-wag Shopping Mall project. Sandiganbayan that the Sangguniang Bayan "has conspired if
He points out the time they were negotiating with API, not abetted all the actions of the Accused in all his dealings
Australian-Professionals Realty, Inc. which is the same entity with API to the damage and prejudice of the municipality"
as API, was involved in two major BOT projects (P150 and said courts declaration that "this is one case where the
million project in Lemery, Batangas and P300 million Ombudsman should have included the entire Municipal
construction project in Calamba, Laguna). Council of Muoz in the information."7

We disagree. As this Court explained in Santos v. People8:

As extensively discussed in our Decision, petitioner was The prosecution of one guilty person while others equally
grossly negligent when it glossed over APIs failure to guilty are not prosecuted, however, is not, by itself, a denial
submit specified documents showing that it was duly of the equal protection of the laws. Where the official action
licensed or accredited Filipino contractor, and has the purports to be in conformity to the statutory classification, an
requisite financial capacity and technical expertise or erroneous or mistaken performance of the statutory duty,
experience, in addition to the complete proposal which although a violation of the statute, is not without more a
includes a feasibility study and company profile. These denial of the equal protection of the laws. The unlawful
requirements imposed by the BOT law and implementing administration by officers of a statute fair on its face,
rules were intended to serve as competent proof of legal resulting in its unequal application to those who are entitled
qualifications and therefore constitute the "substantial basis" to be treated alike, is not a denial of equal protection unless
for evaluating a project proposal. Petitioners theory would there is shown to be present in it an element of intentional or
allow substitution of less reliable information as basis for the purposeful discrimination. This may appear on the face of
local government units determination of a contractors the action taken with respect to a particular class or person,
financial capability and legal qualifications in utter disregard or it may only be shown by extrinsic evidence showing a
of what the law says and consequences prejudicial to the discriminatory design over another not to be inferred from
government, which is precisely what the law seeks to the action itself. But a discriminatory purpose is not
prevent. presumed, there must be a showing of "clear and intentional
discrimination." Appellant has failed to show that, in
To reiterate, we quote from the Decision the purpose of the charging appellant in court, that there was a "clear and
bidding requirements: intentional discrimination" on the part of the prosecuting
officials.
We have held that the Implementing Rules provide for the
unyielding standards the PBAC should apply to determine The discretion of who to prosecute depends on the
the financial capability of a bidder for pre-qualification prosecutions sound assessment whether the evidence before
purposes: (i) proof of the ability of the project proponent it can justify a reasonable belief that a person has committed
and/or the consortium to provide a minimum amount of an offense. The presumption is that the prosecuting officers
equity to the project and (ii) a letter testimonial from regularly performed their duties, and this presumption can be
reputable banks attesting that the project proponent and/or overcome only by proof to the contrary, not by mere
members of the consortium are banking with them, that they speculation. Indeed, appellant has not presented any
are in good financial standing, and that they have adequate evidence to overcome this presumption. The mere allegation
resources. The evident intent of these standards is to protect that appellant, a Cebuana, was charged with the commission
the integrity and insure the viability of the project by seeing of a crime, while a Zamboanguea, the guilty party in
to it that the proponent has the financial capability to carry it appellants eyes, was not, is insufficient to support a
out. Unfortunately, none of these requirements was conclusion that the prosecution officers denied appellant
submitted by API during the pre-qualification equal protection of the laws.1wphi1
stage.5 (Emphasis supplied.)
There is also common sense practicality in sustaining
Petitioner further points out that our Decision failed to appellants prosecution.
consider that the Sandiganbayan disregarded his right to the
equal protection of the laws when he alone among the While all persons accused of crime are to be treated on a
numerous persons who approved APIs proposal and basis of equality before the law, it does not follow that they
implemented the project was charged, tried and convicted. are to be protected in the commission of crime. It would be
unconscionable, for instance, to excuse a defendant guilty of
It bears stressing that the manner in which the prosecution of murder because others have murdered with impunity. The
the case is handled is within the sound discretion of 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.: big-time shabu supplier and also denied selling shabu. He
was then charged with illegal sale of shabu.8
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 The RTC rendered a decision convicting appellant of illegal
Decision2 of the Regional Trial Couti (RTC), Branch 103, of sale of 0.18 grams of shabu and sentenced him to suffer the
Quezon City, finding appellant Alex Watamama y Esil guilty penalty of life imprisonment and to pay a fine of P500,000.
of violating Section 5 of Republic Act (R.A.) No. 9165. 3
On appeal to the CA, appellant argued that the arresting
The prosecution's version of the facts is as follows: police officers failed to comply strictly with Section 21(1) of
R.A. No. 9165, since there was no proof that they conducted
At around 10 oclock in the morning of September 25, 2005, an inventory of the confiscated items, or even marked the
an informant reported to SPO2 Dante Nagera in the Quezon same in his presence, or the presence of his representative or
City Anti-Drug Action Center, PNP Central Police District, counsel, or a representative from the media and the
Quezon City Hall Compound, that a certain "Alex" was Department of Justice, or any elected official.
selling drugs in Barangay Payatas, Quezon City. SPO2
Nagera relayed the information to his superior P/Supt. As aforesaid, the CA denied the appeal and affirmed the RTC
Gerardo Ratuita who then formed a team consisting of SPO2 Decision.1wphi1 The CA found that the prosecution was
Nagera, PO3 Leonardo Ramos, PO1 Teresita Reyes, PO1 able to establish every link in the chain of custody of the
Alexander Jimenez, and PO1 Peggy Lynne Vargas to conduct shabu from the moment of seizure to receipt for examination
a buy-bust operation. PO1 Vargas was designated as the and safekeeping in the PNP Crime Laboratory to
poseur buyer and was given two P100 bills which she
marked with her initials "PV".4 safekeeping for presentation in court. The CA further held
that the marking and inventory of the shabu done at the
At 12 noon of the same day, the buy-bust team arrived at police station was not fatal to the prosecutions case. Section
Area A, Payatas, Quezon City. The informant accompanied 21 (a) of the Implementing Rules and Regulations of
PO1 Vargas to a house at No. 14 Rosal Street. Upon seeing Republic Act No. 9165 provides that in case of warrantless
appellant, the informant introduced PO1 Vargas to appellant seizures, the marking, inventory, and photograph may be
as a shabu user. PO1 Vargas asked to buy P200 worth of conducted at the nearest office of the apprehending team as
shabu from appellant. When asked for payment, PO1 Vargas long as the integrity and evidentiary value of the seized items
promptly handed appellant the two marked bills. Appellant are properly preserved. The CA noted that PO1 Vargas
pocketed the money then took out a plastic sachet containing adequately explained why the marking was not made at the
0.18 grams of shabu and gave it to PO1 Vargas. PO1 Vargas place of confiscation since there was a crowd of people
inspected the contents of the plastic sachet, then gave the forming when appellant was arrested. Also, a photograph
pre-arranged signal that the transaction was consummated. was taken but the digital camera was lost. The CA also held
Immediately, the other members of the buy-bust team that the defect in the pre-operation coordination sheet with
surfaced and arrested appellant. The two marked bills were PDEA would not affect the entrapment operation. The CA
recovered when SPO2 Nagera ordered appellant to empty his explained that Section 86 of R.A. No. 9165 is explicit only in
pockets. Appellant was thereafter brought to the police saying that the PDEA shall be the "lead agency" in
station.5 investigations and prosecutions of drug-related cases. It held
that Section 86 is more of an administrative provision.
At the police station, PO1 Vargas marked the confiscated
shabu and turned it over to the station investigator Alex A. Unsatisfied with the CA decision, appellant filed a notice of
Jimenez. Jimenez prepared an inventory receipt which appeal before this Court, essentially questioning the
P/Supt. Ratuita signed. Thereafter, PO2 Ortiz brought the noncompliance by the police with the procedure for the
plastic sachet to the PNP Crime Laboratory for qualitative custody and control of seized prohibited drugs under Section
examination.6 Forensic chemist Leonard Jabonillo performed 21 of R.A. No. 9165. He claims that the chain of custody was
the examination and found that the contents of the heat- not established by the prosecution and prays for his acquittal.
sealed transparent plastic sachet with marking PV-09-25-05,
weighed 0.18 grams and tested positive for We agree with appellant.
methylampethamine hydrochloride or shabu.7
In all prosecutions for the violation of the Comprehensive
On the other hand, appellant claimed that three men in Dangerous Drugs Act of 2002, the existence of the prohibited
civilian attire with handguns tucked at their waist suddenly drug has to be proved.9
barged in his house and arrested him. He was not shown any
arrest warrant and nothing was found on him when the police The chain of custody rule requires that testimony be
frisked him at the police station. He added that PO1 Jimenez presented about every link in the chain, from the moment the
told him that if he wanted to be released he must reveal the item was seized up to the time it is offered in evidence. To
identity of a big-time shabu supplier. He denied knowing any this end, the prosecution must ensure that the substance
presented in court is the same substance seized from the to the prosecutions case. Since the failure to establish every
accused. link in the chain of custody of the drug compromised its
identity and integrity, which is the corpus delicti of the
While this Court recognizes substantial adherence to the crimes charged against appellant, his acquittal is therefore in
requirements of R.A. No. 9165 and its implementing rules order.
and regulations, not perfect adherence, is what is demanded
of police officers attending to drugs cases,10still, such officers WHEREFORE, the appeal is GRANTED. The March 5,
must present justifiable reason for their imperfect conduct 2010 Decision of the Court of Appeals in CA-G.R. CR-HC
and show that the integrity and evidentiary value of the No. 03295 is REVERSED and SET ASIDE. Accused-
seized items had been preserved. Here, however, they failed appellant Alex Watamama y Esil is hereby ACQUITTED on
to meet these conditions. 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 The prosecution decided to present four witnesses, namely:
and 11, Article II of Republic Act No. 9165, otherwise Senior Police Officer (SPO) 2 Nilo Banzuela, Police Officer
known as the Comprehensive Dangerous Drugs Act of 2002. (PO) 3 Felix Mayuga, PO3 Cirilo Zamora and PO2 Roberto
Jovenir. The parties dispensed with the testimony of Forensic
The facts gathered from the records are as follows: Chemist Maria Ana Rivera-Dagasdas on the stipulation that
she received the request for laboratory examination and the
Two separate informations dated August 19, 2002 were filed specimen allegedly confiscated from the accused on August
before the RTC against appellant for illegal sale and 18, 2002 and upon her examination, the specimen proved
possession of shabu under Sections 5 3 and 11,4 Article II of positive for methamphetamine hydrochloride as appearing in
Republic Act No. 9165. The accusatory portion of the Chemistry Report No. D-1237-02. The defense agreed to
informations read: present three witnesses, the accused, Alicia Padua and
Christopher Griego.8
Criminal Case No. 11595-D
Trial on the merits thereafter followed.
The undersigned Assistant Provincial Prosecutor accuses
SONNY PADUA y REYES of the crime of violation of Evidence for the prosecution adduced before the RTC
Section 5, Article II of Republic Act 9165, committed as consisted of the sole testimony of witness PO2 Dante Aguilar
follows: 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
That, on or about the 18th day of August 2002, in the
at the Police Station of SPD, District Drug Enforcement
Municipality of Taguig, Metro Manila, Philippines, and
Group in Taguig City, his team leader, Police Inspector
within the jurisdiction of this Honorable Court, the above-
(P/Insp.) Rodolfo Anicoche, upon the tip of an informant,
named accused, without being authorized by law did, then
ordered him and the rest of his teammates, namely, SPO2
and there willfully, unlawfully and knowingly sell, deliver
Banzuela, PO3 Cirilo Zamora, PO3 Felix Mayuga, PO2
and give away to another one (1) heat sealed transparent
Roberto Jovenir and PO1 Michael Esparagoza to conduct a
plastic sachet containing 0.20 gram of white crystalline
buy-bust operation against accused-appellant, who was
substance, which substance was found positive to the test for
allegedly selling illegal drugs in Taguig City.9 Per
"shabu", which is a dangerous drug, in consideration of the
instructions, PO2 Aguilar was tasked to pose as the poseur-
amount of P200.00 in violation of the above-cited law.5
buyer. Following the briefing, his team leader handed
him P200.00 marked money.10
Criminal Case No. 11596-D
On the same day, at around 10:30 a.m., the group proceeded
The undersigned Assistant Provincial Prosecutor accuses to the residence of accused-appellant at No. 216 Mozo St.,
SONNY PADUA y REYES of the crime of violation of Purok 2, Napindan, Taguig City. PO2 Aguilar, SPO2
Section 11, 2nd Par., No. 3, Article II of Republic Act 9165, Banzuela, the asset, and P/Insp. Anicoche parked their car
committed as follows: about 50 to 75 meters away from the residence of accused-
appellant, conducted a surveillance, and observed that there
That, on or about the 18th day of August 2002 in the were persons coming in and out of Paduas house talking to
Municipality of Taguig, Metro Manila, Philippines, and the latter. They then went back to the other police officers
within the jurisdiction of this Honorable Court, the above- and told them the place where accused-appellant was.
named accused, without being authorized by law did, then Thereafter, PO2 Aguilar and the asset proceeded to the house
and there willfully, unlawfully and knowingly have in his of accused-appellant. The asset called Sonny, and when the
possession, custody and control four (4) heat sealed latter went out of his house, the asset introduced PO2 Aguilar
transparent plastic sachets, each sachet containing 0.20 gram, to him as a delivery truck driver who had just arrived from a
0.10 gram, 0.20 gram and 0.20 gram, respectively, or in the provincial trip and in dire need of shabu for his personal
aggregate total weight of 0.70 gram, of white crystalline consumption. Aguilar handed the P200.00 marked money to
substance, which substance were found positive to the test the accused-appellant, who folded and placed it on his left
for "shabu," which is a dangerous drug, in violation of the pocket. Accused-appellant then took something from his
above-cited law.6 right pocket and handed an aluminum sachet to PO2 Aguilar.
Subsequently, PO2 Aguilar removed his cap, the pre-
Subsequently, these cases were consolidated. When arranged signal to the rest of the buy-bust team that he had
arraigned on September 18, 2002, appellant, assisted by already bought the shabu. When PO1 Esparagoza arrived,
counsel de oficio, pleaded "Not guilty" to each of the PO2 Aguilar frisked and arrested the accused-appellant. He
charges.7 recovered the buy-bust money in the left pocket and four
sachets in the right pocket of the accused-appellant. He
During the pre-trial conference, the public prosecutor marked informed accused-appellant of his right to remain silent, and
their evidence but the defense did not mark any evidence. of the fact that he would be charged with violation of
Republic Act No. 9165. They brought him to the police mother and beside the house of accused-appellant located at
station. Later, PO2 Aguilar turned over the seized drugs to No. 216 Mozo St., Purok 2, Napindan, Taguig City, five men
the investigator, who thereafter brought the evidence to the arrived. The three entered the gate of the premises of
SPD Crime Laboratory Office, Fort Bonifacio, Taguig City. accused-appellant, one was left outside of the gate while the
other approached her and asked her of the address of the
For failure of PO3 Cirilo Zamora to appear on the April 3, place. Ten minutes after they entered the house of accused-
2003 hearing,11 PO1 Michael Esparagoza to appear on the appellant, they came out together with accused-appellant
July 24, 2003 hearing,12 and PO2 Robert Jovenir to appear at who was then handcuffed and half-naked.18
the November 12, 2003 hearing,13 despite notices, their
testimonies were deemed waived. After trial, the court a quo found accused-appellant guilty as
charged. The dispositive portion of the trial courts decision
The prosecution also adduced documentary and object reads:
evidence to buttress the testimony of its witness, to wit: (1)
joint affidavit of the arresting officers signed by SPO2 Nilo WHEREFORE, the court finds accused SONNY PADUA Y
Banzuela, PO3 Cirilo Zamora, PO2 Dante Aguilar, PO3 REYES guilty beyond reasonable doubt of violation of
Felix Mayuga, PO2 Roberto Jovenir and PO1 Michael Section 5, Article II of Republic Act 9165, and hereby
Esparagoza;14 (2) request for laboratory examination dated sentences him to suffer life imprisonment and to pay a fine
August 18, 2002;15 (3) Physical Science Report No. D-1237- of P500,000.00.
02 dated August 18, 2002, signed by Forensic Chemist Maria
Ana Rivera-Dagasdas;16 (4) one heat-sealed transparent The Court also finds accused GUILTY beyond reasonable
plastic sachet containing 0.20 gram of shabu; (5) four heat- doubt of violation of Section 11, Article II of the same law
sealed transparent plastic sachets each containing 0.20 gram, and sentences him to suffer a prison term ranging from
0.10 gram, 0.20 gram and 0.20 gram respectively, of shabu; TWELVE (12) YEARS and ONE (1) DAY, AS MINIMUM,
and (6) photocopy of two one-hundred-peso bills with serial to TWENTY (20) YEARS, as maximum, and to pay a fine
numbers FW840532 and YR684136.17 of P300.000.00

The defense, on the other hand, had an entirely different The confiscated evidence are forfeited in favor of the
version of what transpired that morning. It presented two Government and the Branch Clerk of Court is directed to
witnesses: accused-appellant Sonny Padua and Miranda cause their immediate transmittal to the Philippine Drug
Estanislao. The testimony of Alice Padua, the wife of the Enforcement Agency (PDEA) for immediate disposal in
accused was dispensed with, on the stipulation that if accordance with law.19
presented she will just corroborate the testimony of the
accused. On May 25, 2006, the Court of Appeals affirmed the findings
and conclusion of the RTC. The appellate court ruled that the
Accused-appellant testified that there was no buy-bust buy-bust operation conducted by the police officers was
operation on August 18, 2002. On direct examination, proper and there was no irregularity in the conduct of the
accused-appellant asserted that at around 8:00 to 9:00 same. Accused-appellant was caught in flagrante delicto,
oclock in the morning of August 18, 2002, he was awakened thus, his arrest was lawful and the sachets of shabu
by the operatives who went to his house located at No. 216, confiscated from him were admissible in evidence, being the
Mozo Street, Purok 2, Barangay Napindan, Taguig City. fruits of the crime. The Court of Appeals also ruled that there
When he opened his eyes, a gun was poked at him. He was was no evidence of any improper motive on the part of
handcuffed by the police officers and was brought to DDEU prosecution witness PO2 Aguilar, who was a member of the
at Fort Bonifacio, where he was detained. While inside the team who conducted the buy-bust operation.
vehicle on their way to Fort Bonifacio, accused-appellant
alleged that the police officers asked him to give them The records of this case were thereby forwarded by the Court
money in the amount of P120,000.00 otherwise a case will of Appeals to this Court pursuant to its Resolution dated July
be filed against him. 20, 2006, giving due course to accused-appellants Notice of
Appeal.
The following day, accused-appellant was allegedly brought
to the Capitol Compound for inquest and was thereafter In our Resolution20 dated October 16, 2006, the parties were
brought to the Taguig Municipal Jail. He was not aware of notified that they may file their respective supplemental
any violation he committed. It was only during the inquest briefs, if they so desired, within 30 days from notice.
proceedings in court that accused-appellant learned of the People21 opted not to file a supplemental brief on the ground
charges filed against him. that it had exhaustively argued all the relevant issues in its
brief, and the filing of a supplemental brief would only entail
The defense also offered the testimony of Miranda a repetition of the arguments already discussed therein.
Estanislao, cousin of the wife of accused-appellant. Per her Accused-appellant submitted his supplemental brief on
statement, on August 18, 2002 in front of the house of her 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 With respect to the charge of illegal possession of dangerous
service to the police.27 drugs under Section 11, Article II of Republic Act No. 9165,
all of these elements were present and duly proven in
Further, not all people who came into contact with the seized Criminal Case No. 11596-D. These are: (1) accused-
drugs are required to testify in court. There is nothing in appellant was found to be in possession of .70 gram of
Republic Act No. 9165 or in any rule implementing the same shabu, a dangerous drug; (2) the identity of accused-
that imposes such requirement. As long as the chain of appellant as the person found in possession of the dangerous
custody of the seized drug was clearly established not to drug was established; and (3) accused-appellant, the person
have been broken and that the prosecution did not fail to found to be in possession, was not authorized to possess the
identify properly the drugs seized, it is not indispensable that dangerous drug. The prosecution has established that the
each and every person who came into possession of the drugs arresting officers were able to retrieve four more plastic
should take the witness stand.28 In People v. Zeng Hua sachets of shabu in accused-appellants possession when he
Dian,29 we ruled: was directed to empty his pockets upon being arrested in
flagrante delicto in the buy-bust operation.
After a thorough review of the records of this case, we find
that the chain of custody of the seized substance was not PO2 Aguilar straightforwardly narrated the circumstances
broken and that the prosecution did not fail to identify leading to the consummation of the sale of illegal drugs, the
properly the drugs seized in this case. The non-presentation possession of four plastic sachets of shabu and the arrest of
as witnesses of other persons such as SPO1 Grafia, the accused-appellant. Credence was properly accorded to the
evidence custodian, and PO3 Alamia, the officer on duty, is testimony of prosecution witness PO2 Aguilar who is a law
not a crucial point against the prosecution. The matter of enforcer. The testimony of the police officers carried with it
presentation of witnesses by the prosecution is not for the the presumption of regularity in the performance of official
court to decide. The prosecution has the discretion as to how functions. Law enforcers are presumed to have performed
to present its case and it has the right to choose whom it their duties regularly in the absence of evidence to the
wishes to present as witnesses. contrary. When police officers have no motive for testifying
falsely against the accused, courts are inclined to uphold the
What determines if there was, indeed, a sale of dangerous presumption of regularity in the performance of their
drugs in a buy-bust operation is proof of the concurrence of duties32 and no evidence whatsoever was presented that
all the elements of the offense, to wit: (1) the identity of the would suggest any improper motive on the part of the police
buyer and the seller, the object, and the consideration; and enforcers. This Court accords great respect to and treats with
(2) the delivery of the thing sold and the payment therefor, finality the findings of the trial court on the matter of
which the prosecution has satisfactorily established. The credibility of witnesses, absent any palpable error or
prosecution satisfactorily proved the illegal sale of dangerous arbitrariness in its findings.
drugs and presented in court the evidence of corpus delicti.30
Accused-appellant also contends that the prosecution failed
In the instant case, all the elements of the crime have been to prove that he received the money as payment for the sale
sufficiently established by the prosecution. The witness for of illegal drugs, by its failure to prove that he was positive
the prosecution was able to prove that the buy-bust operation for ultraviolet fluorescent powder. The accused-appellant
indeed took place, and the shabu subject of the sale was fails to persuade us. Since the prosecution has discharged its
brought to and duly identified in court. The poseur-buyer onus of proving the accusation, as in fact it presented the
(PO2 Aguilar) positively identified accused-appellant as the prohibited drug and identified accused-appellant as the
one who had sold to him one heat-sealed, transparent plastic offender, it is immaterial that prosecution present report that
sachet containing twenty decigrams (0.20 gram) of shabu. accused-appellant was indeed positive for ultraviolet
After accused-appellant received the marked money and fluorescent powder.
handed to PO2 Aguilar one plastic sachet of shabu, the latter
called his team mates and right away frisked the accused- In a last-ditch but futile attempt to evade culpability, the
appellant. From the body search, PO2 Aguilar recovered accused-appellant tried to argue on his behalf that no
from the possession of accused-appellant, specifically from surveillance was conducted before the buy-bust operation.
the latters right pocket, another four sachets of shabu.
A prior surveillance is not a prerequisite for the validity of an
On the other hand, for an accused to be convicted of illegal entrapment or buy-bust operation, the conduct of which has
possession of prohibited or regulated drugs, the following no rigid or textbook method. Flexibility is a trait of good
elements must concur: (1) the accused is in possession of an police work. However the police carry out its entrapment
item or object which is identified to be a prohibited drug; (2) operations, for as long as the rights of the accused have not
such possession is not authorized by law; and (3) the accused been violated in the process, the courts will not pass on the
freely and consciously possesses the said drug.31 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, who appeals may still apply for probation on remand of the
Article II of Republic Act No. 9165 were duly established by case to the trial court.
the prosecutions evidence, we shall now ascertain the
penalties imposable on him. The Facts and the Case

Under Section 5, Article II of Republic Act No. 9165, the The public prosecutor of Camarines Sur charged the accused
unauthorized sale of shabu, regardless of its quantity and Arnel Colinares (Arnel) with frustrated homicide before the
purity, carries with it the penalty of life imprisonment to Regional Trial Court (RTC) of San Jose, Camarines Sur, in
death and a fine ranging from Five Hundred Thousand Pesos Criminal Case T-2213.1
(P500,000.00) to Ten Million Pesos (P10,000,000.00).
Complainant Rufino P. Buena (Rufino) testified that at
Pursuant, however, to the enactment of Republic Act No. around 7:00 in the evening on June 25, 2000, he and Jesus
9346, entitled "An Act Prohibiting the Imposition of Death Paulite (Jesus) went out to buy cigarettes at a nearby store.
Penalty in the Philippines," only life imprisonment and fine On their way, Jesus took a leak by the roadside with Rufino
shall be imposed. Thus, the RTC and the Court of Appeals waiting nearby. From nowhere, Arnel sneaked behind and
were correct in imposing the penalty of life imprisonment struck Rufino twice on the head with a huge stone, about 15
and fine of P500,000.00 on appellant in Criminal Case No. inches in diameter. Rufino fell unconscious as Jesus fled.
11595-D.
Ananias Jallores (Ananias) testified that he was walking
Section 11(3), Article II of Republic Act No. 9165 provides home when he saw Rufino lying by the roadside. Ananias
that illegal possession of less than five grams of shabu is tried to help but someone struck him with something hard on
penalized with imprisonment of twelve (12) years and one the right temple, knocking him out. He later learned that
day to twenty (20) years, plus a fine ranging from Three Arnel had hit him.
hundred thousand pesos (P300,000.00) to Four hundred
thousand pesos (P400,000.00).1avvphi1 Paciano Alano (Paciano) testified that he saw the whole
incident since he happened to be smoking outside his house.
Accused-appellant was charged with and found to be guilty He sought the help of a barangay tanod and they brought
of illegal possession of 0.70 gram of shabu in Criminal Case Rufino to the hospital.
No. 11596-D. Hence, the RTC and the Court of Appeals
aptly sentenced appellant to imprisonment of 12 years and Dr. Albert Belleza issued a Medico-Legal
one day, as minimum, to 20 years, as maximum, and fined Certificate2 showing that Rufino suffered two lacerated
him P300,000.00, since said penalties are within the range of wounds on the forehead, along the hairline area. The doctor
penalties prescribed by the aforequoted provision. testified that these injuries were serious and potentially fatal
but Rufino chose to go home after initial treatment.
WHEREFORE, the Decision dated May 25, 2006 of the
Court of Appeals in CA-G.R. CR.-H.C. No. 00553 is hereby The defense presented Arnel and Diomedes Paulite
AFFIRMED in toto. (Diomedes). Arnel claimed self-defense. He testified that he
was on his way home that evening when he met Rufino,
SO ORDERED. 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
G.R. No. 182748 December 13, 2011 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
ARNEL COLINARES, Petitioner,
and hid in his sisters house. On September 4, 2000, he
vs.
voluntarily surrendered at the Tigaon Municipal Police
PEOPLE OF THE PHILIPPINES, Respondent.
Station.
DECISION
Diomedes testified that he, Rufino, Jesus, and Ananias
attended a pre-wedding party on the night of the incident.
ABAD, J.: His three companions were all drunk. On his way home,
Diomedes saw the three engaged in heated argument with
This case is about a) the need, when invoking self-defense, to Arnel.
prove all that it takes; b) what distinguishes frustrated
homicide from attempted homicide; and c) when an accused
On July 1, 2005 the RTC rendered judgment, finding Arnel or inflicting injury to him. The accused must establish the
guilty beyond reasonable doubt of frustrated homicide and elements of self-defense by clear and convincing evidence.
sentenced him to suffer imprisonment from two years and When successful, the otherwise felonious deed would be
four months of prision correccional, as minimum, to six excused, mainly predicated on the lack of criminal intent of
years and one day of prision mayor, as maximum. Since the the accused.4
maximum probationable imprisonment under the law was
only up to six years, Arnel did not qualify for probation. In homicide, whether consummated, frustrated, or attempted,
self-defense requires (1) that the person whom the offender
Arnel appealed to the Court of Appeals (CA), invoking self- killed or injured committed unlawful aggression; (2) that the
defense and, alternatively, seeking conviction for the lesser offender employed means that is reasonably necessary to
crime of attempted homicide with the consequent reduction prevent or repel the unlawful aggression; and (3) that the
of the penalty imposed on him. The CA entirely affirmed the person defending himself did not act with sufficient
RTC decision but deleted the award for lost income in the provocation.5
absence of evidence to support it.3 Not satisfied, Arnel comes
to this Court on petition for review. If the victim did not commit unlawful aggression against the
accused, the latter has nothing to prevent or repel and the
In the course of its deliberation on the case, the Court other two requisites of self-defense would have no basis for
required Arnel and the Solicitor General to submit their being appreciated. Unlawful aggression contemplates an
respective positions on whether or not, assuming Arnel actual, sudden, and unexpected attack or an imminent danger
committed only the lesser crime of attempted homicide with of such attack. A mere threatening or intimidating attitude is
its imposable penalty of imprisonment of four months of not enough. The victim must attack the accused with actual
arresto mayor, as minimum, to two years and four months of physical force or with a weapon.6
prision correccional, as maximum, he could still apply for
probation upon remand of the case to the trial court. Here, the lower courts found that Arnel failed to prove the
element of unlawful aggression. He alone testified that Jesus
Both complied with Arnel taking the position that he should and Ananias rained fist blows on him and that Rufino and
be entitled to apply for probation in case the Court metes out Ananias tried to stab him. No one corroborated Arnels
a new penalty on him that makes his offense probationable. testimony that it was Rufino who started it. Arnels only
The language and spirit of the probation law warrants such a other witness, Diomedes, merely testified that he saw those
stand. The Solicitor General, on the other hand, argues that involved having a heated argument in the middle of the
under the Probation Law no application for probation can be street. Arnel did not submit any medical certificate to prove
entertained once the accused has perfected his appeal from his point that he suffered injuries in the hands of Rufino and
the judgment of conviction. his companions.7

The Issues Presented In contrast, the three witnessesJesus, Paciano, and Ananias
testified that Arnel was the aggressor. Although their
The case essentially presents three issues: versions were mottled with inconsistencies, these do not
detract from their core story. The witnesses were one in what
1. Whether or not Arnel acted in self-defense when he struck Arnel did and when and how he did it. Compared to Arnels
Rufino on the head with a stone; testimony, the prosecutions version is more believable and
consistent with reality, hence deserving credence.8
2. Assuming he did not act in self-defense, whether or not
Arnel is guilty of frustrated homicide; and 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
3. Given a finding that Arnel is entitled to conviction for a
and could not have resulted in death as in fact it did not?
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 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
The Courts Rulings
possible doubt regarding homicidal intent. 9And the intent to
kill is often inferred from, among other things, the means the
One. Arnel claims that Rufino, Jesus, and Ananias attacked offender used and the nature, location, and number of
him first and that he merely acted in self-defense when he hit wounds he inflicted on his victim.10
Rufino back with a stone.
Here, Arnel struck Rufino on the head with a huge stone. The
When the accused invokes self-defense, he bears the burden blow was so forceful that it knocked Rufino out. Considering
of showing that he was legally justified in killing the victim the great size of his weapon, the impact it produced, and the
location of the wounds that Arnel inflicted on his victim, the A: 7 to 8 days long, what we are looking is not much, we
Court is convinced that he intended to kill him. give antibiotics and antit[e]tanus the problem the
contusion that occurred in the brain.
The Court is inclined, however, to hold Arnel guilty only of
attempted, not frustrated, homicide. In Palaganas v. xxxx
People,11 we ruled that when the accused intended to kill his
victim, as shown by his use of a deadly weapon and the Q: What medical intervention that you undertake?
wounds he inflicted, but the victim did not die because of
timely medical assistance, the crime is frustrated murder or A: We give antibiotics, Your Honor, antit[e]tanus and
frustrated homicide. If the victims wounds are not fatal, the suturing the wounds.
crime is only attempted murder or attempted homicide.
Q: For how many days did he stay in the hospital?
Thus, the prosecution must establish with certainty the
nature, extent, depth, and severity of the victims wounds.
A: Head injury at least be observed within 24 hours, but
While Dr. Belleza testified that "head injuries are always
some of them would rather go home and then come back.
very serious,"12 he could not categorically say that Rufinos
wounds in this case were "fatal." Thus:
Q: So the patient did not stay 24 hours in the hospital?
Q: Doctor, all the injuries in the head are fatal?
A: No, Your Honor.
A: No, all traumatic injuries are potentially treated.
Q: Did he come back to you after 24 hours?
Q: But in the case of the victim when you treated him the
wounds actually are not fatal on that very day? A: I am not sure when he came back for follow-up.14

A: I could not say, with the treatment we did, prevent Taken in its entirety, there is a dearth of medical evidence on
from becoming fatal. But on that case the patient record to support the prosecutions claim that Rufino would
preferred to go home at that time. have died without timely medical intervention. Thus, the
Court finds Arnel liable only for attempted homicide and
entitled to the mitigating circumstance of voluntary
Q: The findings also indicated in the medical certificate
surrender.
only refers to the length of the wound not the depth of the
wound?
Three. Ordinarily, Arnel would no longer be entitled to apply
for probation, he having appealed from the judgment of the
A: When you say lacerated wound, the entire length of
RTC convicting him for frustrated homicide.
the layer of scalp.
But, the Court finds Arnel guilty only of the lesser crime of
Q: So you could not find out any abrasion?
attempted homicide and holds that the maximum of the
penalty imposed on him should be lowered to imprisonment
A: It is different laceration and abrasion so once the skin of four months of arresto mayor, as minimum, to two years
is broken up the label of the frontal lo[b]e, we always call and four months of prision correccional, as maximum. With
it lacerated wound, but in that kind of wound, we did not this new penalty, it would be but fair to allow him the right to
measure the depth.13 apply for probation upon remand of the case to the RTC.

Indeed, Rufino had two lacerations on his forehead but there Some in the Court disagrees. They contend that probation is
was no indication that his skull incurred fracture or that he a mere privilege granted by the state only to qualified
bled internally as a result of the pounding of his head. The convicted offenders. Section 4 of the probation law (PD 968)
wounds were not so deep, they merely required suturing, and provides: "That no application for probation shall be
were estimated to heal in seven or eight days. Dr. Belleza entertained or granted if the defendant has perfected the
further testified: appeal from the judgment of conviction." 15Since Arnel
appealed his conviction for frustrated homicide, he should be
Q: So, in the medical certificate the wounds will not deemed permanently disqualified from applying for
require surgery? probation.

A: Yes, Madam. 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
Q: The injuries are slight? 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 nugatory the appellate courts affirmance of his
to apply for probation because of the lowered penalty, it is conviction."17
still up to the trial judge to decide whether or not to grant
him the privilege of probation, taking into account the full Here, however, Arnel did not appeal from a judgment that
circumstances of his case. would have allowed him to apply for probation. He did not
have a choice between appeal and probation. He was not in a
Secondly, it is true that under the probation law the accused position to say, "By taking this appeal, I choose not to apply
who appeals "from the judgment of conviction" is for probation." The stiff penalty that the trial court imposed
disqualified from availing himself of the benefits of on him denied him that choice. Thus, a ruling that would
probation. But, as it happens, two judgments of conviction allow Arnel to now seek probation under this Courts greatly
have been meted out to Arnel: one, a conviction for diminished penalty will not dilute the sound ruling in
frustrated homicide by the regional trial court, now set aside; Francisco. It remains that those who will appeal from
and, two, a conviction for attempted homicide by the judgments of conviction, when they have the option to try for
Supreme Court. probation, forfeit their right to apply for that privilege.

If the Court chooses to go by the dissenting opinions hard Besides, in appealing his case, Arnel raised the issue of
position, it will apply the probation law on Arnel based on correctness of the penalty imposed on him. He claimed that
the trial courts annulled judgment against him. He will not the evidence at best warranted his conviction only for
be entitled to probation because of the severe penalty that attempted, not frustrated, homicide, which crime called for a
such judgment imposed on him. More, the Supreme Courts probationable penalty. In a way, therefore, Arnel sought from
judgment of conviction for a lesser offense and a lighter the beginning to bring down the penalty to the level where
penalty will also have to bend over to the trial courts the law would allow him to apply for probation.
judgmenteven if this has been found in error. And, worse,
Arnel will now also be made to pay for the trial courts In a real sense, the Courts finding that Arnel was guilty, not
erroneous judgment with the forfeiture of his right to apply of frustrated homicide, but only of attempted homicide, is an
for probation. Ang kabayo ang nagkasala, ang hagupit ay sa original conviction that for the first time imposes on him a
kalabaw (the horse errs, the carabao gets the whip). Where is probationable penalty. Had the RTC done him right from the
justice there? start, it would have found him guilty of the correct offense
and imposed on him the right penalty of two years and four
The dissenting opinion also expresses apprehension that months maximum.lavvphil This would have afforded Arnel
allowing Arnel to apply for probation would dilute the ruling the right to apply for probation.
of this Court in Francisco v. Court of Appeals 16 that the
probation law requires that an accused must not have The Probation Law never intended to deny an accused his
appealed his conviction before he can avail himself of right to probation through no fault of his. The underlying
probation. But there is a huge difference between Francisco philosophy of probation is one of liberality towards the
and this case. accused. Such philosophy is not served by a harsh and
stringent interpretation of the statutory provisions. 18 As
In Francisco, the Metropolitan Trial Court (MeTC) of Makati Justice Vicente V. Mendoza said in his dissent in Francisco,
found the accused guilty of grave oral defamation and the Probation Law must not be regarded as a mere privilege
sentenced him to a prison term of one year and one day to to be given to the accused only where it clearly appears he
one year and eight months of prision correccional, a clearly comes within its letter; to do so would be to disregard the
probationable penalty. Probation was his to ask! Still, he teaching in many cases that the Probation Law should be
chose to appeal, seeking an acquittal, hence clearly waiving applied in favor of the accused not because it is a criminal
his right to apply for probation. When the acquittal did not law but to achieve its beneficent purpose.19
come, he wanted probation. The Court would not of course
let him. It served him right that he wanted to save his cake One of those who dissent from this decision points out that
and eat it too. He certainly could not have both appeal and allowing Arnel to apply for probation after he appealed from
probation. the trial courts judgment of conviction would not be
consistent with the provision of Section 2 that the probation
The Probation Law, said the Court in Francisco, requires that law should be interpreted to "provide an opportunity for the
an accused must not have appealed his conviction before he reformation of a penitent offender." An accused like Arnel
can avail himself of probation. This requirement "outlaws the who appeals from a judgment convicting him, it is claimed,
element of speculation on the part of the accusedto wager shows no penitence.
on the result of his appealthat when his conviction is
finally affirmed on appeal, the moment of truth well-nigh at This may be true if the trial court meted out to Arnel a
hand, and the service of his sentence inevitable, he now correct judgment of conviction. Here, however, it convicted
applies for probation as an escape hatch thus rendering 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.
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,
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. after an interruption, with both vessels leaving the area, was
ROGER P. TULIN, VIRGILIO I. LOYOLA, completed on March 30,1991.
CECILIO O. CHANGCO, ANDRES C.
INFANTE, CHEONG SAN HIONG, and JOHN On March 30, 1991, "M/T Tabangao" returned to the
DOES, accused-appellants. same area and completed the transfer of cargo to "Navi
Pride."
DECISION
On April 8, 1991, "M/T Tabangao" arrived at Calatagan,
MELO, J.: Batangas, but the vessel remained at sea. On April 10, 1991,
the members of the crew were released in three batches with
This is one of the older cases which unfortunately has the stern warning not to report the incident to government
remained in docket of the Court for sometime. It was authorities for a period of two days or until April 12, 1991,
reassigned, together with other similar cases, to otherwise they would be killed. The first batch was fetched
undersigned ponente in pursuance of A.M. No. 00-9-03-SC from the shoreline by a newly painted passenger jeep driven
dated February 27, 2001. 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
In the evening of March 2, 1991, M/T Tabangao, a
proceeding to their respective homes. The second batch was
cargo vessel owned by the PNOC Shipping and Transport
fetched by accused-appellant Changco at midnight of April
Corporation, loaded with 2,000 barrels of kerosene, 2,600
10, 1991 and were brought to different places in Metro
barrels of regular gasoline, and 40,000 barrels of diesel oil,
Manila.
with a total value of P40,426,793,87. was sailing off the
coast of Mindoro near Silonay Island.
On April 12, 1991, the Chief Engineer, accompanied by
the members of the crew, called the PNOC Shipping and
The vessel, manned by 21 crew members, including
Transport Corporation office to report the incident. The crew
Captain Edilberto Libo-on, Second Mate Christian Torralba,
members were brought to the Coast Guard Office for
and Operator Isaias Ervas, was suddenly boarded, with the
investigation. The incident was also reported to the National
use of an aluminum ladder, by seven fully armed pirates led
Bureau of Investigation where the officers and members of
by Emilio Changco, older brother of accused-appellant
the crew executed sworn statements regarding the incident.
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 A series of arrests was thereafter effected as follows:
crew and took complete control of the vessel. Thereafter,
accused-appellant Loyola ordered three crew members to a. On May 19, 1991, the NBI received verified
paint over, using black paint, the name "M/T Tabangao" on information that the pirates were present at U.K. Beach,
the front and rear portions of the vessel, as well as the PNOC Balibago, Calatagan, Batangas. After three days of
logo on the chimney of the vessel. The vessel was then surveillance, accused-appellant Tulin was arrested and
painted with the name "Galilee," with registry at San brought to the NBI headquarters in Manila.
Lorenzo, Honduras. The crew was forced to sail to
Singapore, all the while sending misleading radio messages b. Accused-appellants Infante, Jr. and Loyola were
to PNOC that the ship was undergoing repairs. arrested by chance at Aguinaldo Hi-way by NBI agents as
the latter were pursuing the mastermind, who managed to
PNOC, after losing radio contact with the vessel, evade arrest.
reported the disappearance of the vessel to the Philippine
Coast Guard and secured the assistance of the Philippine Air c. On May 20, 1991, accused-appellants Hiong and
Force and the Philippine Navy. However, search and rescue Changco were arrested at the lobby of Alpha Hotel in
operations yielded negative results. On March 9, 1991, the Batangas City.
ship arrived in the vicinity of Singapore and cruised around
the area presumably to await another vessel which, however, On October 24 1991, an Information charging qualified
failed to arrive. The pirates were thus forced to return to the piracy or violation of Presidential Decree No. 532 (piracy in
Philippines on March 14, 1991, arriving at Calatagan, Philippine Waters) was filed against accused-appellants, as
Batangas on March 20, 1991 where it remained at sea. follows:
The undersigned State Prosecutor accuses ROGER P. Accused-appellant Changco categorically denied the
TULIN, VIRGILIO I. LOYOLA, CECILIO O. CHANGCO, charge, averring that he was at home sleeping on April 10,
ANDRES C. INFANTE, and CHEONG SAN HIONG, and 1991. He testified that he is the younger brother of Emilio
nine (9) other JOHN DOES of qualified piracy (Violation of Changco, Jr.
P.D. No. 532), committed as follows:
Accused-appellant Cheong San Hiong, also known as
That on or about and during the period from March 2 to April Ramzan Ali, adduced evidence that he studied in Sydney,
10, 1991, both dates inclusive, and for sometime prior and Australia, obtaining the "Certificate" as Chief Officer, and
subsequent thereto, and within the jurisdiction of this later completed the course as a "Master" of a vessel, working
Honorable Court, the said accused, then manning a motor as such for two years on board a vessel. He was employed at
launch and armed with high powered guns, conspiring and Navi Marine Services, Pte., Ltd. as Port Captain. The
confederating together and mutually helping one another, did company was engaged in the business of trading petroleum,
then and there, wilfully, unlawfully and feloniously fire including shipoil, bunker lube oil, and petroleum to domestic
upon, board and seize while in the Philippine waters M/T and international markets. It owned four vessels, one of
PNOC TABANGCO loaded with petroleum products, which was "Navi Pride."
together with the complement and crew members, employing
violence against or intimidation of persons or force upon On March 2, 1991, the day before "M/T Tabangao" was
things, then direct the vessel to proceed to Singapore where seized by Emilio Changco and his cohorts, Hiong's name
the cargoes were unloaded and thereafter returned to the was listed in the company's letter to the Mercantile Section
Philippines on April 10, 1991, in violation of the aforesaid of the Maritime Department of the Singapore government as
law. the radio telephone operator on board the vessel "Ching Ma."

CONTRARY The company was then dealing for the first time with
TO LAW. Paul Gan, a Singaporean broker, who offered to sell to the
former bunker oil for the amount of 300,000.00 Singapore
( dollars. After the company paid over one-half of the
pp. 119-20, Rollo.) aforesaid amount to Paul Gan, the latter, together with
Joseph Ng, Operations Superintendent of the firm, proceeded
This was docketed as Criminal Case No. 91-94896 to the high seas on board "Navi Pride" but failed to locate the
before Branch 49 of the Regional Trial Court of the National contact vessel.
Capital Judicial Region stationed in Manila. Upon
arraignment, accused-appellants pleaded not guilty to the The transaction with Paul Gan finally pushed through
charge. Trial thereupon ensued. on March 27, 1991. Hiong, upon his return on board the
vessel "Ching Ma," was assigned to supervise a ship-to-ship
Accused-appellants Tulin, Infante, Jr., and Loyola, transfer of diesel oil off the port of Singapore, the contact
notwithstanding some inconsistencies in their testimony as to vessel to be designated by Paul Gan. Hiong was ordered to
where they were on March 1, 1991, maintained the defense ascertain the quantity and quality of the oil and was given the
of denial, and disputed the charge, as well as the transfer of amount of 300,000.00 Singapore Dollars for the purchase.
any cargo from "M/T Tabangao" to the "Navi Pride." All of Hiong, together with Paul Gan, and the surveyor William
them claimed having their own respective sources of Yao, on board "Navi Pride" sailed toward a vessel called
livelihood. Their story is to the effect that on March 2, 1991, "M/T Galilee". Hiong was told that "M/T Galilee" would be
while they were conversing by the beach, a red speedboat making the transfer. Although no inspection of "Navi Pride"
with Captain Edilberto Liboon and Second Mate Christian was made by the port authorities before departure, Navi
Torralba on board, approached the seashore. Captain Liboon Marine Services, Pte., Ltd. was able to procure a port
inquired from the three if they wanted to work in a vessel. clearance upon submission of General Declaration and crew
They were told that the work was light and that each worker list. Hiong, Paul Gan, and the brokers were not in the crew
was to be paid P3,000.00 a month with additional list submitted and did not pass through the immigration. The
compensation if they worked beyond that period. They General Declaration falsely reflected that the vessel carried
agreed even though they had no sea-going experience. On 11,900 tons.
board, they cooked, cleaned the vessel, prepared coffee, and
ran errands for the officers. They denied having gone to On March 28, 1991, "Navi Pride" reached the location
Singapore, claiming that the vessel only went to Batangas. of "M/T Galilee". The brokers then told the Captain of the
Upon arrival thereat in the morning of March 21, 1991, they vessel to ship-side with "M/T Galilee" and then transfer of
were paid P1,000.00 each as salary for nineteen days of the oil transpired. Hiong and the surveyor William Yao met
work, and were told that the balance would be remitted to the Captain of "M/T Galilee," called "Captain Bobby" (who
their addresses. There was neither receipt nor contracts of later turned out to be Emilio Changco). Hiong claimed that
employment signed by the parties. 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 if the accused can no longer return the same, the said accused
soundings of the tanks in the "Navi Pride" and took samples are hereby ordered to remit, jointly and severally, to said
of the cargo. The surveyor prepared the survey report which corporation the value thereof in the amount of
"Captain Bobby" signed under the name "Roberto Castillo." P11,240,000.00 Philippine Currency, with interests thereon,
Hiong then handed the payment to Paul Gan and William at the rate of 6% per annum from March 2, 1991 until the
Yao. Upon arrival at Singapore in the morning of March 29, said amount is paid in full. All the accused including Cheong
1991, Hiong reported the quantity and quality of the cargo to San Hiong are hereby ordered to return to the Caltex
the company. Philippines, Inc. the cargo of the "M/T Tabangao", or if the
accused can no longer return the said cargo to said
Thereafter, Hiong was again asked to supervise another corporation, all the accused are hereby condemned to pay,
transfer of oil purchased by the firm " from "M/T Galilee" to jointly and severally, to the Caltex Refinery, Inc., the value
"Navi Pride." The same procedure as in the first transfer was of said cargo in the amount of P40,426,793.87, Philippine
observed. This time, Hiong was told that that there were food Currency plus interests until said amount is paid in full. After
and drinks, including beer, purchased by the company for the the accused Cheong San Hiong has served his sentence, he
crew of "M/T Galilee. The transfer took ten hours and was shall be deported to Singapore.
completed on March 30, 1991. Paul Gan was paid in full for
the transfer. All the accused shall be credited for the full period of their
detention at the National Bureau of Investigation and the
On April 29 or 30, 1991, Emilio Changco intimated to City Jail of Manila during the pendency of this case provided
Hiong that he had four vessels and wanted to offer its cargo that they agreed in writing to abide by and comply strictly
to cargo operators. Hiong was asked to act as a broker or with the rules and regulations of the City Jail of Manila and
ship agent for the sale of the cargo in Singapore. Hiong went the National Bureau of Investigation. With costs against all
to the Philippines to discuss the matter with Emilio Changco, the accused.
who laid out the details of the new transfer, this time with
"M/T Polaris" as contact vessel. Hiong was told that the SO ORDERED.
vessel was scheduled to arrive at the port of Batangas that
weekend. After being billeted at Alpha Hotel in Batangas (pp. 149-150, Rollo.)
City, where Hiong checked in under the name "SONNY
CSH." A person by the name of "KEVIN OCAMPO," who The matter was then elevated to this Court. The
later turned out to be Emilio Changco himself, also checked arguments of accused-appellants may be summarized as
in at Alpha Hotel. From accused-appellant Cecilio Changco, follows:
Hiong found out that the vessel was not arriving. Hiong was
thereafter arrested by NBI agents.
Roger P. Tulin Virgilio Loyola Andres C. Infante Jr., and
Cecilio O. Changco
After trial, a 95-page decision was rendered convicting
accused-appellants of the crime charged. The dispositive
Accused-appellants Tulin, Loyola, Infante, Jr., and
portion of said decision reads:
Cecilio Changco assert that the trial court erred in allowing
them to adopt the proceedings taken during the time they
WHEREFORE, in the light of the foregoing considerations, were being represented by Mr. Tomas Posadas, a non-lawyer,
judgment is hereby rendered by this Court finding the thereby depriving them of their constitutional right to
accused Roger Tulin, Virgilio Loyola, Andres Infante, Jr. and procedural due process.
Cecilio Changco guilty beyond reasonable doubt, as
principals, of the crime of piracy in Philippine Waters
In this regard, said accused-appellants narrate that Mr.
defined in Section 2(d) of Presidential Decree No. 532 and
Posadas entered his appearance as counsel for all of them.
the accused Cheong San Hiong, as accomplice, to said crime.
However, in the course of the proceedings, or on February
Under Section 3(a) of the said law, the penalty for the
11, 1992, the trial court discovered that Mr. Posadas was not
principals of said crime is mandatory death. However,
a member of the Philippine Bar. This was after Mr. Posadas
considering that, under the 1987 Constitution, the Court
had presented and examined seven witnesses for the accused.
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 Further, accused-appellants Tulin, Loyola, Infante,
PERPETUA, with all the accessory penalties of the law. The Cecilio, Changco uniformly contend that during the custodial
accused Cheong San Hiong is hereby meted the penalty of investigation, they were subjected to physical violence; were
RECLUSION PERPETUA, pursuant to Article 52 of the forced to sign statements without being given the opportunity
Revised Penal Code in relation to Section 5 of PD 532. The to read the contents of the same; were denied assistance of
accused Roger Tulin, Virgilio Loyola, Andres Infante, Jr. and counsel, and were not informed of their rights, in violation of
Cecilio Changco are hereby ordered to return to the PNOC their constitutional rights,
Shipping and Transport Corporation the "M/T Tabangao" or
Said accused-appellants also argue that the trial court (3) did the trial court err in finding that the prosecution was
erred in finding that the prosecution proved beyond able to prove beyond reasonable doubt that accused-
reasonable doubt that they committed the crime of qualified appellants committed the crime of qualified piracy?; (4) did
piracy. They allege that the pirates were outnumbered by the Republic Act No. 7659 obliterate the crime committed by
crew who totaled 22 and who were not guarded at all times. accused-appellant Cheong?; and (5) can accused-appellant
The crew, so these accused-appellants conclude, could have Cheong be convicted as accomplice when he was not
overpowered the alleged pirates. charged as such and when the acts allegedly committed by
him were done or executed outside Philippine waters and
Cheong San Hiong territory?

In his brief, Cheong argues that: (1) Republic Act No. On the first issue, the record reveals that a manifestation
7659 in effect obliterated the crime committed by him; (2) (Exhibit "20", Record) was executed by accused-appellants
the trial court erred in declaring that the burden is lodged on Tulin, Loyola, Changco, and Infante, Jr. on February 11,
him to prove by clear and convincing evidence that he had 1991, stating that they were adopting the evidence adduced
no knowledge that Emilio Changco and his cohorts attacked when they were represented by a non-lawyer. Such waiver of
and seized the "M/T Tabangao" and/or that the cargo of the the right to sufficient representation during the trial as
vessel was stolen or the subject of theft or robbery or piracy; covered by the due process clause shall only be valid if made
(3) the trial court erred in finding him guilty as an with the full assistance of a bona fide lawyer. During the
accomplice to the crime of qualified piracy under Section 4 trial, accused-appellants, as represented by Atty. Abdul
of Presidential Decree No. 532 (Anti-Piracy and Anti- Basar, made a categorical manifestation that said accused-
Robbery Law of 1974); (4) the trial court erred in convicting appellants were apprised of the nature and legal
and punishing him as an accomplice when the acts allegedly consequences of the subject manifestation, and that they
committed by him were done or executed outside of voluntarily and intelligently executed the same. They also
Philippine waters and territory, stripping the Philippine affirmed the truthfulness of its contents when asked in open
courts of jurisdiction to hold him for trial, to convict, and court (tsn, February 11, 1992, pp. 7-59). It is true that an
sentence; (5) the trial court erred in making factual accused person shall be entitled to be present and to defend
conclusions without evidence on record to prove the same himself in person and by counsel at every stage of the
and which in fact are contrary to the evidence adduced proceedings, from arraignment to promulgation of judgment
during trial; (6) the trial court erred in convicting him as an (Section 1, Rule 115, Revised Rules of Criminal Procedure).
accomplice under Section 4 of Presidential Decree No. 532 This is hinged on the fact that a layman is not versed on the
when he was charged as a principal by direct participation technicalities of trial. However, it is also provided by law
under said decree, thus violating his constitutional right to be that "[r]ights may be waived, unless the waiver is contrary to
informed of the nature and cause of the accusation against law, public order, public policy, morals, or good customs or
him. prejudicial to a third person with right recognized by law."
(Article 6, Civil Code of the Philippines). Thus, the same
Cheong also posits that the evidence against the other section of Rule 115 adds that "[u]pon motion, the accused
accused-appellants do not prove any participation on his part may be allowed to defend himself in person when it
in the commission of the crime of qualified piracy. He sufficiently appears to the court that he can properly protect
further argues that he had not in any way participated in the his rights without the assistance of counsel." By analogy ,
seajacking of "M/T Tabangao" and in committing the crime but without prejudice to the sanctions imposed by law for the
of qualified piracy, and that he was not aware that the vessel illegal practice of law, it is amply shown that the rights of
and its cargo were pirated. 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
As legal basis for his appeal, he explains that he was
procedure. Hence, we rule that there was a valid waiver of
charged under the information with qualified piracy as
the right to sufficient representation during the trial,
principal under Section 2 of Presidential Decree No. 532
considering that it was unequivocally, knowingly, and
which refers to Philippine waters. In the case at bar, he
intelligently made and with the full assistance of a bona fide
argues that he was convicted for acts done outside Philippine
lawyer, Atty. Abdul Basar. Accordingly, denial of due process
waters or territory. For the State to have criminal jurisdiction,
cannot be successfully invoked where a valid waiver of
the act must have been committed within its territory.
rights has been made (People vs. Serzo, 274 SCRA 553
[1997]; Sayson vs. People, 166 SCRA 680 [1988]).
We affirm the conviction of all the accused-appellants.
However, we must quickly add that the right to counsel
The issues of the instant case may be summarized as during custodial investigation may not be waived except in
follows: (1) what are the legal effects and implications of the writing and in the presence of counsel.
fact that a non-lawyer represented accused-appellants during
the trial?; (2) what are the legal effects and implications of
Section 12, Article III of the Constitution reads:
the absence of counsel during the custodial investigation?;
SEC. 12. (1) Any person under investigation for the accused-appellants with moral certainty. We agree with the
commission of an offense shall have the right to be informed sound deduction of the trial court that indeed, Emilio
of his right to remain silent and to have competent and Changco (Exhibits "U" and "UU") and accused-appellants
independent counsel preferably of his own choice. If the Tulin, Loyola, .and Infante, Jr. did conspire and confederate
person cannot afford the services of counsel, he must be to commit the crime charged. In the words of then trial
provided with one. These rights cannot be waived except in judge, now Justice Romeo J. Callejo of the Court of Appeals
writing and in the presence of counsel. -

(2) No torture, force, violence, threat, intimidation, or any ...The Prosecution presented to the Court an array of
other means which vitiate the free will shall be used against witnesses, officers and members of the crew of the "M/T
him. Secret detention places, solitary, incommunicado, or Tabangao" no less, who identified and pointed to the said
other similar forms of detention are prohibited. Accused as among those who attacked and seized, the "M/T
Tabangao" on March 2, 1991, at about 6:30 o'clock in the
(3) Any confession or admission obtained in violation of this afternoon, off Lubang Island, Mindoro, with its cargo, and
or Section 17 hereof shall be inadmissible in evidence brought the said vessel, with its cargo, and the officers and
against him. crew of the vessel, in the vicinity of Horsebough Lighthouse,
about sixty-six nautical miles off the shoreline of Singapore
(4) The law shall provide for penal and civil sanctions for and sold its cargo to the Accused Cheong San Hiong upon
violations of this section as well as compensation to and which the cargo was discharged from the "M/T Tabangao" to
rehabilitation of victims of torture or similar practices, and the "Navi Pride" for the price of about $500,000.00
their families. (American Dollars) on March 29, and 30, 1991...

Such rights originated from Miranda v. Arizona (384 U. xxx


S. 436 [1966]) which gave birth to the so-called Miranda
doctrine which is to the effect that prior to any questioning xxx
during custodial investigation, the person must be warned
that he has a right to remain silent, that any statement he xxx
gives may be used as evidence against him, and that he has
the right to the presence of an attorney, either retained or The Master, the officers and members of the crew of the
appointed. The defendant may waive effectuation of these "M/T Tabangao" were on board the vessel with the Accused
rights, provided the waiver is made voluntarily, knowingly, and their cohorts from March 2, 1991 up to April 10, 1991 or
and intelligently. The Constitution even adds the more for more than one (1) month. There can be no scintilla of
stringent requirement that the waiver must be in writing and doubt in the mind of the Court that the officers and crew of
made in the presence of counsel. the vessel could and did see and identify the seajackers and
their leader. In fact, immediately after the Accused were
Saliently, the absence of counsel during the execution taken into custody by the operatives of the National Bureau
of the so-called confessions of the accused-appellants make of Investigation, Benjamin Suyo, Norberto Senosa, Christian
them invalid. In fact, the very basic reading of the Miranda Torralba and Isaias Wervas executed their "Joint Affidavit"
rights was not even shown in the case at bar. Paragraph [3] of (Exhibit "B") and pointed to and identified the said Accused
the aforestated Section 12 sets forth the so-called "fruit from as some of the pirates.
the poisonous tree doctrine," a phrase minted by Mr. Justice
Felix Frankfurter in the celebrated case of Nardone vs. xxx
United States (308 U.S. 388 [1939]). According to this rule,
once the primary source (the "tree") is shown to have been xxx
unlawfully obtained, any secondary or derivative evidence
(the "fruit") derived from it is also inadmissible. The rule is
xxx
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 Indeed, when they testified before this Court on their
subsequently obtained (People vs. Alicando, 251 SCRA 293 defense, the three (3) Accused admitted to the Court that
[1995]). Thus, in this case, the uncounselled extrajudicial they, in fact, boarded the said vessel in the evening of March
confessions of accused-appellants, without a valid waiver of 2 1991 and remained on board when the vessel sailed to its,
the right to counsel, are inadmissible and whatever destination, which turned out to be off the port of Singapore.
information is derived therefrom shall be regarded as
likewise inadmissible in evidence against them. (pp. 106-112, Rollo.)

However, regardless of the inadmissibility of the We also agree with the trial court's finding that accused-
subject confessions, there is sufficient evidence to convict appellants' defense of denial is not supported by any hard
evidence but their bare testimony. Greater weight is given to We affirm the trial court's finding that Emilio Changco,
the categorical identification of the accused by the accused- appellants Tulin, Loyola, and Infante, Jr. and others,
prosecution witnesses than to the accused's plain denial of were the ones assigned to attack and seize the "M/T
participation in the commission of the crime (People v. Tabangao" off Lubang, Mindoro, while accused-appellant
Baccay, 284 SCRA 296 [1998]). Instead, accused-appellants Cecilio Changco was to fetch the master and the members of
Tulin, Loyola, and Infante, Jr. narrated a patently desperate the crew from the shoreline of Calatagan, Batangas after the
tale that they were hired by three complete strangers transfer, and bring them to Imus, Cavite, and to provide the
(allegedly Captain Edilberto Liboon, Second Mate Christian crew and the officers of the vessel with money for their fare
Torralba, and their companion) while said accused-appellants and food provisions on their way home. These acts had to be
were conversing with one another along the seashore at well-coordinated. Accused-appellant Cecilio Changco need
Apkaya, Balibago, Calatagan, Batangas, to work on board not be present at the time of the attack and seizure of "M/T
the "M/T Tabangao" which was then anchored off- Tabangao" since he performed his task in view of an
shore. And readily, said accused-appellants agreed to work as objective common to all other accused- appellants.
cooks and handymen for an indefinite period of time without
even saying goodbye to their families, without even knowing Of notable importance is the connection of accused-
their destination or the details of their voyage, without the appellants to one another. Accused-appellant Cecilio
personal effects needed for a long voyage at sea. Such Changco is the younger brother of Emilio Changco (aka
evidence is incredible and clearly not in accord with human Captain Bobby/Captain Roberto Castillo/Kevin Ocampo),
experience. As pointed out by the trial court, it is incredible owner of Phil-Asia Shipping Lines. Cecilio worked for his
that Captain Liboon, Second Mate Torralba, and their brother in said corporation. Their residences are
companion "had to leave the vessel at 9:30 o'clock in the approximately six or seven kilometers away from each other.
evening and venture in a completely unfamiliar place merely Their families are close. Accused-appellant Tulin, on the
to recruit five (5) cooks or handymen (p. 113, Rollo)." other hand, has known Cecilio since their parents were
neighbors in Aplaya, Balibago, Calatagan,
Anent accused-appellant Changco's defense of denial Batangas. Accused-appellant Loyola's wife is a relative of
with the alibi that on May 14 and 17, he was at his place of the Changco brothers by affinity .Besides, Loyola and Emilio
work and that on April 10, 1991, he was in his house in Changco had both been accused in a seajacking case
Bacoor, Cavite, sleeping, suffice it to state that alibi is regarding "M/T Isla Luzon" and its cargo of steel coils and
fundamentally and inherently a weak defense, much more so plates off Cebu and Bohol in 1989. Emilio Changco (aka
when uncorroborated by other witnesses (People v. Adora, Kevin Ocampo) was convicted of the crime while Loyola at
275 SCRA 441 [1997]) considering that it is easy to fabricate that time remained at large.
and concoct, and difficult to disprove. Accused-appellant
must adduce clear and convincing evidence that, at about As for accused-appellant Hiong, he ratiocinates that he
midnight on April 10, 1991, it was physically impossible for can no longer be convicted of piracy in Philippine waters as
him to have been in Calatagan, Batangas. Changco not only defined and penalized in Sections 2[d] and 3[a], respectively
failed to do this, he was likewise unable to prove that he was of Presidential Decree No. 532 because Republic Act No.
in his place of work on the dates aforestated. 7659 (effective January 1, 1994) which amended Article 122
of the Revised Penal Code, has impliedly superseded
It is doctrinal that the trial court's evaluation of the Presidential Decree No. 532. He reasons out that Presidential
credibility of a testimony is accorded the highest respect, for Decree No. 532 has been rendered "superfluous or
trial courts have an untrammeled opportunity to observe duplicitous" because both Article 122 of the Revised Penal
directly the demeanor of witnesses and, thus, to determine Code, as amended, and Presidential Decree No. 532 punish
whether a certain witness is telling the truth (People v. piracy committed in Philippine waters. He maintains that in
Obello, 284 SCRA 79 [1998]). order to reconcile the two laws, the word "any person"
mentioned in Section 1 [d] of Presidential Decree No. 532
We likewise uphold the trial court's finding of must be omitted such that Presidential Decree No. 532 shall
conspiracy. A conspiracy exists when two or more persons only apply to offenders who are members of the complement
come to an agreement concerning the commission of a or to passengers of the vessel, whereas Republic Act No.
felony and decide to commit it (Article 8, Revised Penal 7659 shall apply to offenders who are neither members of the
Code). To be a conspirator, one need not participate in every complement or passengers of the vessel, hence, excluding
detail of execution; he need not even take part in every act or him from the coverage of the law.
need not even know the exact part to be performed by the
others in the execution of the conspiracy. As noted by the Article 122 of the Revised Penal Code, used to provide:
trial court, there are times when conspirators are assigned
separate and different tasks which may appear unrelated to Article 122. Piracy in general and mutiny on the high seas.
one another, but in fact, constitute a whole and collective -The penalty of reclusion temporal shall be inflicted upon
effort to achieve a common criminal design. 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 from crimes against the law of nations. As expressed in one
vessel, its equipment, or personal belongings of its of the "whereas" clauses of Presidential Decree No. 532,
complement or passengers. piracy is "among the highest forms of lawlessness
condemned by the penal statutes of all countries." For this
( reason, piracy under the Article 122, as amended, and piracy
Underscoring supplied.) under Presidential Decree No. 532 exist harmoniously as
separate laws.
Article 122, as amended by Republic Act No. 7659
January 1, 1994), reads: As regards the contention that the trial court did not
acquire jurisdiction over the person of accused-appellant
Article 122. Piracy in general and mutiny on the high seas or Hiong since the crime was committed outside Philippine
in Philippine waters. -The penalty of reclusion perpetua shall waters, suffice it to state that unquestionably, the attack on
be inflicted upon any person who, on the high seas, or in and seizure of "M/T Tabangao" (renamed "M/T Galilee" by
Philippine waters, shall attack or seize a vessel or, being the pirates) and its cargo were committed in Philippine
a member of its complement nor a passenger, shall seize the waters, although the captive vessel was later brought by the
whole or part of the cargo of said vessel, its equipment, or pirates to Singapore where its cargo was off-loaded,
personal belongings of its complement or passengers. 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
Underscoring ours)
waters, the disposition by the pirates of the vessel and its
cargo is still deemed part of the act of piracy, hence, the
On the other hand, Section 2 of Presidential Decree No. same need not be committed in Philippine waters.
532 provides:
Moreover, piracy falls under Title One of Book Two of
SEC. 2. Definition of Terms. - The following shall mean and the Revised Penal Code. As such, it is an exception to the
be understood, as follows: rule on territoriality in criminal law. The same principle
applies even if Hiong, in the instant case, were charged, not
d. Piracy. -Any attack upon or seizure of any vessel, or the with a violation of qualified piracy under the penal code but
taking away of the whole or part thereof or its cargo, under a special law, Presidential Decree No. 532 which
equipment, or the personal belongings of its complement or penalizes piracy in Philippine waters. Verily, Presidential
passengers, irrespective of the value thereof, by means of Decree No. 532 should be applied with more force here since
violence against or intimidation of persons or force upon its purpose is precisely to discourage and prevent piracy in
things, committed by any person. including a passenger or Philippine waters (People v. Catantan, 278 SCRA 761
member of the complement of said vessel in Philippine [1997]). It is likewise, well-settled that regardless of the law
waters, shall be considered as piracy. The offenders shall be penalizing the same, piracy is a reprehensible crime against
considered as pirates and punished as hereinafter provided the whole world (People v. Lol-lo, 43 Phil. 19 [1922]).
(underscoring supplied).
However, does this constitute a violation of accused-
To summarize, Article 122 of the Revised Penal Code, appellant's constitutional right to be informed of the nature
before its amendment, provided that piracy must be and cause of the accusation against him on the ground that he
committed on the high seas by any person not a member of was convicted as an accomplice under Section 4 of
its complement nor a passenger thereof. Upon its amendment Presidential Decree No. 532 even though he was charged as
by Republic Act No. 7659, the coverage of the pertinent a principal by direct participation under Section 2 of said
provision was widened to include offenses committed "in law?
Philippine waters." On the other hand, under Presidential
Decree No. 532 (issued in 1974), the coverage of the law on The trial court found that there was insufficiency of
piracy embraces any person including "a passenger or evidence showing:
member of the complement of said vessel in Philippine
waters." Hence, passenger or not, a member of the
(a) that accused-appellant Hiong directly participated in
complement or not, any person is covered by the law.
the attack and seizure of "M/T Tabangao" and its cargo; (b)
that he induced Emilio Changco and his group in the attack
Republic Act No. 7659 neither superseded nor amended and seizure of "M/T Tabangao" and its cargo; ( c) and that
the provisions on piracy under Presidential Decree No. 532. his act was indispensable in the attack on and seizure of
There is no contradiction between the two laws. There is "M/T Tabangao" and its cargo. Nevertheless, the trial court
likewise no ambiguity and hence, there is no need to found that accused-appellant Hiong's participation was
construe or interpret the law. All the presidential decree did indisputably one which aided or abetted Emilio Changco and
was to widen the coverage of the law, in keeping with the his band of pirates in the disposition of the stolen cargo
intent to protect the citizenry as well as neighboring states
under Section 4 of Presidential Decree No. 532 which entries, the Singapore Port Authorities could have easily
provides: discovered the illegal activities that took place and this
would have resulted in his arrest and prosecution in
SEC. 4. Aiding pirates or highway robbers/brigands or Singapore. Moreover, the transfer of the stolen cargo from
abetting piracy or highway robbery brigandage. -Any person "M/T Galilee" to "Navi Pride" could not have been effected.
who knowingly and in any manner aids or protects pirates or
highway robbers/brigands, such as giving them information We completely uphold the factual findings of the trial
about the movement of police or other peace officers of the court showing in detail accused-appellant Hiong's role in the
government, or acquires or receives property taken by such disposition of the pirated goods summarized as follows: that
pirates or brigands or in any manner derives any benefit on March 27, 1991, Hiong with Captain Biddy Santos
therefrom; or any person who directly or indirectly abets the boarded the "Navi Pride," one of the vessels of the Navi
commission of piracy or highway robbery or brigandage, Marine, to rendezvous with the "M/T Galilee"; that the firm
shall be considered as an accomplice of the principal officers submitted the crew list of the vessel (Exhibit "8-CSH",
and be punished in accordance with Rules prescribed by the Record) to the port authorities, excluding the name of Hiong;
Revised Penal Code. that the "General Declaration" (for departure) of the "Navi
Pride" for its voyage off port of Singapore (Exhibits "HH"
It shall be presumed that any person who does any of the acts and "8-A CSH", Record) falsely stated that the vessel was
provided in this Section has performed them knowingly, scheduled to depart at 2200 (10 o'clock in the evening), that
unless the contrary is proven. there were no passengers on board, and the purpose of the
voyage was for "cargo operation" and that the vessel was to
The ruling of the trial court is Within well-settle unload and transfer 1,900 tons of cargo; that after the transfer
jurisprudence that if there is lack of complete evidence of of the fuel from "M/T Galilee" with' Emilio Changco a. k. a.
conspiracy, the liability is that of an accomplice and not as Captain Bobby a. k. a. Roberto Castillo at the helm, the
principal (People v. Tolentino, 40 SCRA 514 [1971]). Any surveyor prepared the "Quantity Certificate" (Exhibit "11-C
doubt as to the participation of an individual in the CSH, Record) stating that the cargo transferred to the "Navi
commission of the crime is always resolved in favor of lesser Pride" was 2,406 gross cubic meters; that although Hiong
responsibility (People v. Corbes, 270 SCRA 465 [1997]; was not the Master of the vessel, he affixed his signature on
People vs. Elfano, Jr., 125 SCRA 792 [1983]; People v. the "Certificate" above the word "Master" (Exhibit "11-C-2
Pastores, 40 SCRA 498 [1971]). 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
Emphasis must also be placed on the last paragraph of
Declaration" upon its arrival at Singapore on March 29,
Section 4 of Presidential Decree No 532 which presumes that
1991, at 7 o'clock in the evening, (Exhibits "JJ" and "13-A
any person who does any of the acts provided in said section
CSH", Record), it was made to falsely appear that the "Navi
has performed them knowingly, unless the contrary is
Pride" unloaded 1,700 tons of cargo on the high seas during
proven. In the case at bar, accused-appellant Hiong had
said voyage when in fact it acquired from the "M/T Galilee"
failed to overcome the legal presumption that he knowingly
2,000 metric tons of diesel oil. The second transfer transpired
abetted or aided in the commission of piracy, received
with the same irregularities as discussed above. It was
property taken by such pirates and derived benefit therefrom.
likewise supervised by accused- appellant Cheong from his
end while Emilio Changco supervised the transfer from his
The record discloses that accused-appellant Hiong aided end.
the pirates in disposing of the stolen cargo by personally
directing its transfer from "M/T Galilee" to "M/T Navi
Accused-appellant Hiong maintains that he was merely
Pride". He profited therefrom by buying the hijacked cargo
following the orders of his superiors and that he has no
for Navi Marine Services, Pte., Ltd. (tsn, June 3, 1992, pp.
knowledge of the illegality of the source of the cargo.
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 First and foremost, accused-appellant Hiong cannot
Crew List to ensure that the illegal transfer went through, deny knowledge of the source and nature of the cargo since
undetected by Singapore Port Authorities, and supplied the he himself received the same from "M/T Tabangao". Second,
pirates with food, beer, and other provisions for their considering that he is a highly educated mariner, he should
maintenance while in port (tsn, June 3, 1992, pp. 133-134). 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
We believe that the falsification of the General
sale or even a purchase order or any contract of sale for the
Declaration (Arrival and Departure) and Crew List was
purchase by the firm; he never bothered to ask for and
accomplished and utilized by accused-appellant Hiong and
scrutinize the papers and documentation relative to the "M/T
Navi Marine Services personnel in the execution of their
Galilee"; he did not even verify the identity of Captain
scheme to avert detection by Singapore Port Authorities.
Robert Castillo whom he met for the first time nor did he
Hence, had accused-appellant Hiong not falsified said
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- That on or about the 8th day of August, 2002 in the City of
appellants justified by the evidence on record, the Court Baguio, Philippines, and within the jurisdiction of this
hereby AFFIRMS the judgment of the trial court in toto. Honorable Court, the above-named accused and without any
authority of law, did then and there willfully, unlawfully and
SO ORDERED. 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 PO1 Eugene Raymundo, stood about four to five meters
Baguio, Philippines and within the jurisdiction of this away.>12
Honorable Court, the above-named accused, did then and
there willfully, unlawfully and feloniously have in his/her When they reached the designated place, they were met by a
possession and control one transparent plastic containing man wearing a black bull cap and a gray sweatshirt with
four (4) small transparent plastic sachet containing white collar. This person was identified during the trial to be
crystalline substance "Shabu" weighing approximately 0.2 appellant. After the civilian informant introduced PO2 Del-
gm., marked as "RUA" "JF"; 0.2 gm marked "RUA" "JF"; ong and appellant to each other, the latter asked PO2 Del-ong
0.1 gm. Marked "RUA" "JF" and 0.1 gm marked "RUA" how much worth of shabu was he willing to purchase. PO2
"JF", respectively; a regulated drug, without the Del-ong replied that he had only P150.00 with him. After he
corresponding license or prescription, in violation of the handed this sum to appellant, the latter drew from his right
aforecited provision of law.6 front pocket a small sachet which he gave to PO2 Del-ong.
PO2 Del-ong then examined the content of the sealed plastic
During his arraignment on 21 August 2002, appellant sachet. Certain that what appellant gave him was shabu, PO2
pleaded not guilty to both charges.7 Del-ong scratched his head using his left hand to alert his
fellow team members that the sale of shabu was already
On 17 September 2002, the pre-trial of the cases was held at consummated. Thereupon, the rest of the buy-bust team
which time appellant admitted the existence of the following rushed towards appellant and informed him that he was
documents: being arrested. They likewise advised him of his
constitutional rights.13
1. Certification of Preliminary test on the five sachets
marked as Exh. A and B as to the findings of the positive PO3 Aguirre then frisked appellant and recovered from the
result for methamphetamine hydrochloride. latter four small transparent sachets containing crystalline
substance.
2. Chemistry Report No. D-070-2002 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
3. Buy-bust money
testing of the evidence they confiscated from appellant. The
task of conducting the preliminary test was performed by
4. Request for Drug Test PO2 Joseph Filog who issued a certification dated 8 August
2002, the pertinent portion of which states:
5. Booking Sheet and Arrest Report of the accused.8 The purpose of which is to determine the presence of
regulated drug on the above specimen.
During the trial of the cases, the prosecution presented the That by using the "SIMONS REAGENT" to the white
testimonies of PO2 Benedict Del-ong, PO2 Gilbert Bulalit, crystalline substance from the five (5) plastic heat sachets,
and PO3 Roy Aguirre who were all members of the Baguio gave POSITIVE result of "DARK BLUE COLOR" which
City Police. indicates the presence of Methamphetamine Hydrochloride,
an active component of Shabu, a regulated drug.14
The prosecutions version of the facts shows that on 8 August The sachets of white crystalline substance were also
2002, a reliable civilian informant, accompanied by a examined by the Regional Crime Laboratory Office of the
barangay kagawad, went to the Station 7 of the Baguio City Philippine National Police. This test yielded the following
Police. The informant purportedly advised Police Chief results:
Inspector Eduardo Z. Garcia that a person by the name of FINDINGS:
Boisan was engaged in the illegal sale of shabu at Villacor
Billiard Hall located on Otek St., Baguio City.9 Qualitative examination conducted on the above-stated
specimens (Exhs. "A", B-1 thru B-4) gave POSITIVE result
Police Chief Inspector Garcia immediately formed a team to to the test for the presence of Methamphetamine
conduct a buy-bust operation to apprehend Boisan with PO2 hydrochloride (SHABU), a regulated drug. x x x
Del-ong as the designated poseur-buyer.10 Police Chief CONCLUSION:
Inspector Garcia gave PO2 Bulalit one piece of P100.00 bill Exhs. "A", B-1 thru B-4 contain Methamphetamine
and a P50.00 bill. PO2 Bulalit proceeded to have the bills hydrochloride, a regulated drug. x x x.15
photocopied and authenticated by the City Prosecutors Appellant was likewise subjected to a drug test which
Office.11 allegedly showed that he was a shabu user.16
Expectedly, accused presented an entirely different version
Later in the afternoon, the team proceeded to Villacor of what transpired during that afternoon and claimed that the
Billiard Hall. PO3 Aguirre and PO2 Bulalit positioned buy-bust never took place.17 According to appellant, he is a
themselves inside a public utility jeepney parked near the Maranaw who earns a living by peddling sunglasses in
entrance of the billiard hall. The other member of the team, 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 THE TRIAL COURT GRAVELY ERRED IN GIVING
arrived.18 Appellant identified two of the men who came FULL FAITH AND CREDENCE TO THE TESTIMONIES
inside the billiard hall to be PO2 Del-ong and PO3 OF THE PROSECUTION WITNESSES AND IN
Aguirre.19 CONVICTING THE ACCUSED-APPELLANT FOR
VIOLATION OF SECTIONS 5 AND 11, ARTICLE II OF
The group of PO2 Del-ong allegedly frisked appellants REPUBLIC ACT NO. 9165.
fellow players and was able to recover a single plastic sachet II
from one of them. PO2 Del-ong, who was then standing THE TRIAL COURT GRAVELY ERRED IN FINDING
beside appellant, held the latters hand, pointed a gun at his THE ACCUSED-APPELLANT GUILTY BEYOND
head, and warned him not to do anything or else he would be REASONABLE DOUBT OF THE OFFENSES
shot.20 PO3 Aguirre then called for a mobile car and CHARGED.33
appellant, together with his two companions, was brought to Appellant claims that the prosecution failed to establish his
the Station 7 of the Baguio City Police.21 In the police guilt beyond reasonable doubt. He faults the trial court for
station, appellant was handcuffed to the window rail. After a giving "full faith and credence to the [testimonies] of the
few hours, one of the arresting officers came to see him and prosecution witnesses"34 even when he had categorically
asked appellant if he could settle his case by paying a sum of denied the occurrence of any buy-bust operation. He also
money to the police22or he could just identify others who are assails his arrest by the Baguio City Police as it was carried
engaged in drug trade in Baguio City.23 Appellant likewise out without a valid warrant.35 As his arrest was illegal, it
claimed that he learned later on that the two others who were follows that the search conducted by the police upon his
arrested with him were able to settle their cases and had been person was similarly unlawful.36
set free.24 Appellants arguments fail to persuade.
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 It is a fundamental rule that findings of the trial courts which
he decided to move to Baguio City to evade the habit.25 are factual in nature and which involve the credibility of
witnesses are accorded respect when no glaring errors, gross
The prosecution presented PO2 Del-ong as a rebuttal misapprehension of facts and speculative, arbitrary and
witness. He stated that while they were waiting for the unsupported conclusions can be gathered from such findings.
mobile patrol car after the appellants arrest, a minor boy and The reason for this, being, that the trial court is in a better
a companion approached appellant and asked if he still had position to decide the credibility of witnesses having heard
drugs to sell.26 The buy-bust team then decided to arrest the their testimonies and observed their deportment and manner
two would-be-buyers. As the drug test of the boy revealed of testifying during the trial.37 The rule finds an even more
that he was a drug user, he was referred to the Youth and stringent application where said findings are sustained by the
Women Section of the Baguio City Police Office. They were, Court of Appeals as in this case.38
however, compelled to release his companion as his drug test
established that he was not a drug user and because he Considering, however, that at stake is no less than the liberty
claimed that he had just met the minor boy that afternoon.27 of appellant, we thoroughly examined the entire records of
this case. Unfortunately for appellant, we failed to identify
On 1 December 2003, the trial court rendered its decision any error committed by the trial court both in its appreciation
sustaining the prosecution, thus: of the evidence presented before it and in the conclusion it
WHEREFORE, judgment is rendered finding the accused reached.
GUILTY as charged on both counts and he is hereby
sentenced as follows: a) in Criminal Case No. 20441-R, to In the prosecution of offenses involving this provision of the
Life Imprisonment and to pay a fine of P1,000,000.00, and statute, it is necessary that the following elements be
b) in Criminal Case No. 20442-R, to a prison term of twelve established: (1) the identity of the buyer and seller, object,
(12) years and one (1) day to fifteen (15) years, to pay a fine and consideration; and (2) the delivery of the thing sold and
of P300,000.00, and the costs.28 the payment therefore.39 What is material to the prosecution
Appellant seasonably filed a Notice of Appeal elevating the for illegal sale of dangerous drugs is the proof that the
case to this Court.29 transaction or sale actually took place, coupled with the
As the trial court meted a penalty of life imprisonment, the presentation in court of evidence of corpus delicti.40
case was transferred to the Court of Appeals for appropriate
action and disposition pursuant to our ruling in People v. In this case, all the elements of the crime have been
Mateo.30 sufficiently established. The witnesses for the prosecution
were able to prove that the buy-bust operation indeed took
On 28 October 2005, the Court of Appeals rendered the now place and the shabu subject of the sale was brought and duly
assailed decision affirming in toto the decision of the trial identified in court. The poseur-buyer (PO2 Del-ong)
court.31 Appellant is again before us proclaiming his positively identified appellant as the one who sold to him a
innocence.32 packet of white crystalline substance41 which was later
Appellant assigns the following errors: confirmed by two chemical examinations to be shabu.42
I
As recalled by the PO2 Del-ong, the designated poseur- This interdiction against warrantless searches and seizures,
buyer, the events that led to the apprehension of appellant are however, is not absolute and such warrantless searches and
as follows: seizures have long been deemed permissible by
jurisprudence in instances of (1) search of moving vehicles,
These pronouncements were corroborated on their material (2) seizure in plain view, (3) customs searches, (4) waiver or
points by PO2 Bulalit and PO3 Aguirre whose respective consented searches, (5) stop and frisk situations (Terry
testimonies were just as straightforward and candid as that of search), and search incidental to a lawful arrest. The last
PO2 Del-ongs. includes a valid warrantless arrest, for, while as a rule, an
For his part, appellant could not offer any viable defense arrest is considered legitimate [if] effected with a valid
except to claim that he was a victim of frame-up and warrant of arrest, the Rules of Court recognize permissible
extortion by the police officers. However, like alibi, we view warrantless arrest, to wit: (1) arrest in flagrante delicto, (2)
the defense of frame-up with disfavor as it can easily be arrest effected in hot pursuit, and (3) arrest of escaped
concocted and is commonly used as a standard line of prisoners.48 (Emphasis supplied.)
defense in most prosecutions arising from illegal sale of
drugs.44 For the claim of frame-up to prosper, the defense Having established the guilt of the appellant for the crimes
must present clear and convincing evidence to overcome the charged, we shall now proceed to a determination of the
presumption that the arresting policemen performed their appropriate penalties to be imposed upon him.
duties in a regular and proper manner.45 The unauthorized sale of shabu carries with it the penalty of
Appellant failed to substantiate his claim that he was an life imprisonment to death and a fine ranging from Five
unfortunate prey to a supposed ploy concocted by the police. hundred thousand pesos (P500,000.00) to Ten million pesos
By all indications, he did not know anyone of the members (P10,000,000.00).49 On the other hand, the unauthorized
of the buy-bust team which apprehended him. There was, possession of less than five grams of said substance is
therefore, no motive for them to frame him up. Absent any penalized with a prison term of twelve (12) years and one (1)
proof of motive to falsely accuse him of such a grave day to twenty (20) years and a fine of Three hundred
offense, the presumption of regularity in the performance of thousand pesos (P300,000.00) up to Four hundred thousand
official duty and the findings of the trial court with respect to pesos (P400,000.00).50
the credibility of witnesses shall prevail over appellants bare Section 98, Article XIII of Republic Act No. 9165 expressly
allegation that he was framed-up.46 In other words, the provides for the limited application of the provisions of the
categorical and convincing testimonies of the policemen, Revised Penal Code on said law. This section reads:
backed up by physical evidence, overcome the
unsubstantiated claim of ill-motive by appellant. SEC. 98. Limited Applicability of the Revised Penal Code.
Notwithstanding any law, rule or regulation to the contrary,
In this jurisdiction, the conduct of buy-bust operation is a the provisions of the Revised Penal Code (Act No. 3815), as
common and accepted mode of apprehending those involved amended, shall not apply to the provisions of this Act, except
in illegal sale of prohibited or regulated drugs. It has been in the case of minor offenders. Where the offender is a
proven to be an effective way of unveiling the identities of minor, the penalty for acts punishable by life imprisonment
drug dealers and of luring them out of obscurity. Thus, unless to death provided herein shall be reclusion perpetua to death.
the defense could persuade us otherwise, we are inclined to
confer full credit and faith to the testimonies of the members Under the aforesaid section, the provisions of the Revised
of the buy-bust team as regards the conduct of their Penal Code shall no longer apply to the provisions of
operation.1awphi1.net Republic Act No. 9165 except when the offender is a minor.
Appellants claim that his warrantless arrest was invalid is Thus, Article 63(2) of the Revised Penal Code shall not be
similarly devoid of merit. The rule is settled that an arrest used in the determination of the penalty to be imposed on the
made after an entrapment does not require a warrant accused. Since Section 98 of the said law contains the word
inasmuch as it is considered a valid warrantless arrest "shall," the non-applicability of the Revised Penal Code
pursuant to Rule 113, Section 5(a) of the Rules of provisions is mandatory, subject only to the exception in case
Court47 which states: the offender is a minor.
With the advent of Republic Act No. 9165, the Courts, in
SEC. 5. Arrest without warrant; when lawful. A peace determining the appropriate minimum and maximum of the
officer or a private person may, without a warrant, arrest a penalty to be meted out to offenders, shall be guided solely
person: by the pertinent part of the Indeterminate Sentence Law, to
(a) When, in his presence, the person to be arrested has wit:
committed, is actually committing, or is attempting to
commit an offense. SECTION 1. xxx; and if the offense is punished by any other
law, the court shall sentence the accused to an indeterminate
As the legitimacy of the buy-bust operation is beyond sentence, the maximum term of which shall not exceed the
question, the subsequent warrantless arrest as well as the maximum fixed by said law and the minimum shall not be
warrantless search and seizure was permissible, thus: 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. G.R. No. 197291 April 3, 2013
In light, however, of the effectivity of Republic Act No. 9346
entitled, "An Act Prohibiting the Imposition of Death Penalty DATU ANDAL AMPATUAN JR., Petitioner,
in the Philippines," the imposition of the supreme penalty of vs.
death shall only be life imprisonment and fine. Hence, the SEC. LEILA DE LIMA, as Secretary of the
penalty of life imprisonment imposed on appellant in Department of Justice, CSP CLARO ARELLANO, as
Criminal Case No. 20441-R is proper. We, however, find the Chief State Prosecutor, National Prosecution
fine of P1,000,000.00 to be excessive and hereby reduce the Service, and PANEL OF PROSECUTORS OF THE
same to P500,000.00 considering that the records do not MAGUINDANAO MASSACRE, headed by RSP
reveal any prior arrest or conviction of appellant for a drug- PETER MEDALLE, Respondents.
related offense.
We likewise affirm the conviction and penalty of DECISION
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
BERSAMIN, J.:
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. In matters involving the exercise of judgment and
No. 00174, affirming, in toto, the Decision of the Regional discretion, mandamus cannot be used to direct the
Trial Court of Baguio City, Branch 61 is hereby AFFIRMED manner or the particular way the judgment and
with MODIFICATION in that the fine imposed on appellant discretion are to be exercised. Consequently, the
in Criminal Case No. 20441-R is reduced to P500,000.00. Secretary of Justice may be compelled by writ of
No costs. mandamus to act on a letter-request or a motion to
SO ORDERED. 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 Accordingly, on December 7, 2010, petitioner brought a
(DOJ) resolved to file the corresponding informations petition for mandamus in the RTC in Manila (Civil Case
for murder against petitioner, and to issue subpoenae No. 10-124777),22 seeking to compel respondents to
to several persons.4 On December 1, 2009, 25 charge Dalandag as another accused in the various
informations for murder were also filed against murder cases undergoing trial in the QC RTC.
petitioner in the Regional Trial Court, 12th Judicial
Region, in Cotabato City.5 On January 19, 2011,23 the RTC in Manila set a pre-trial
conference on January 24, 2011 in Civil Case No. 10-
On December 3, 2009, Secretary of Justice 124777. At the close of the pre-trial, the RTC in Manila
Devanadera transmitted her letter to Chief Justice issued a pre-trial order.
Puno requesting the transfer of the venue of the trial of
the Maguindanao massacre from Cotabato City to In their manifestation and motion dated February 15,
Metro Manila, either in Quezon City or in Manila, to 201124 and February 18, 2011,25 respondents
prevent a miscarriage of justice. 6 On December 8, questioned the propriety of the conduct of a trial in a
2009, the Court granted the request for the transfer of proceeding for mandamus. Petitioner opposed.
venue.7 However, on December 9, 2009, but prior to
the transfer of the venue of the trial to Metro Manila, On February 15, 2011, petitioner filed a motion for the
the Prosecution filed a manifestation regarding the production of documents,26 which the RTC in Manila
filing of 15 additional informations for murder against granted on March 21, 2011 after respondents did not
petitioner in Branch 15 of the Cotabato City RTC. 8 Later file either a comment or an opposition.
on, additional informations for murder were filed
against petitioner in the RTC in Quezon City, Branch
Respondents then sought the reconsideration of the
211, the new venue of the trial pursuant to the
order of March 21, 2011.
resolution of the Court.9
On March 21, 2011,27 the RTC in Manila issued a
The records show that petitioner pleaded not guilty to
subpoena to Dalandag, care of the Witness Protection
each of the 41 informations for murder when he was
Program of the DOJ, requiring him to appear and testify
arraigned on January 5, 2010, 10 February 3, 2010,11 and
on April 4, 2011 in Civil Case No. 10-124777.
July 28, 2010.12
On April 4, 2011, respondents moved to quash the
In the joint resolution issued on February 5, 2010, the
subpoena.28 Petitioner opposed the motion to quash the
Panel of Prosecutors charged 196 individuals with
subpoena on April 15, 2011. 29 The parties filed other
multiple murder in relation to the Maguindanao
papers, specifically, respondents their reply dated April
massacre.13 It appears that in issuing the joint
26, 2011;30 petitioner an opposition on May 12,
resolution of February 5, 2010 the Panel of Prosecutors
2011;31 and respondents another reply dated May 20,
partly relied on the twin affidavits of one Kenny
2011.32
Dalandag, both dated December 7, 2009.14
On June 27, 2011,33 the RTC of Manila issued the
On August 13, 2010, Dalandag was admitted into the
assailed order in Civil Case No. 10-124777 dismissing
Witness Protection Program of the DOJ. 15 On
the petition for mandamus.34
September 7, 2010, the QC RTC issued its amended
pre-trial order,16 wherein Dalandag was listed as one of
the Prosecution witnesses.17 Hence, this appeal by petition for review on certiorari.

On October 14, 2010, petitioner, through counsel, Issues


wrote to respondent Secretary of Justice Leila De Lima
and Assistant Chief State Prosecutor Richard Fadullon Petitioner raises the following issues, to wit:
to request the inclusion of Dalandag in the informations
for murder considering that Dalandag had already 1. WHETHER THE PUBLIC RESPONDENTS MAY BE
confessed his participation in the massacre through his COMPELLED BY MANDAMUS TO INVESTIGATE
two sworn declarations.18 Petitioner reiterated the AND PROSECUTE KENNY DALANDAG AS AN
request twice more on October 22, 201019 and ACCUSED IN THE INFORMATIONS FOR MULTIPLE
November 2, 2010.20 MURDER IN THE MAGUINADANAO MASSACRE
CASES IN LIGHT OF HIS ADMITTED PARTICIPATION
By her letter dated November 2, 2010, 21 however, THEREAT IN AFFIDAVITS AND OFFICIAL RECORDS
Secretary De Lima denied petitioners request. 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 While it is true that, as a general rule, the discharge or
participated in the commission of a crime and desires exclusion of a co-accused from the information in order
to be a witness for the State, can apply and, if qualified that he may be utilized as a Prosecution witness rests
as determined in this Act and by the Department, shall upon the sound discretion of the trial court, 42 such
be admitted into the Program whenever the following discretion is not absolute and may not be exercised
circumstances are present: arbitrarily, but with due regard to the proper
administration of justice.43 Anent the requisite that there
a. the offense in which his testimony will be used is a must be an absolute necessity for the testimony of the
grave felony as defined under the Revised Penal Code accused whose discharge is sought, the trial court has
or its equivalent under special laws; to rely on the suggestions of and the information
provided by the public prosecutor. The reason is
b. there is absolute necessity for his testimony; 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
c. there is no other direct evidence available for the
discharged in order to become a state witness. The
proper prosecution of the offense committed;
public prosecutor is also supposed to know the
evidence in his possession and whomever he needs to
d. his testimony can be substantially corroborated on establish his case,44 as well as the availability or non-
its material points; availability of other direct or corroborative evidence,
which of the accused is the most guilty one, and the
e. he does not appear to be most guilty; and like.45

f. he has not at any time been convicted of any crime On the other hand, there is no requirement under
involving moral turpitude. Republic Act No. 6981 for the Prosecution to first
charge a person in court as one of the accused in order
An accused discharged from an information or criminal for him to qualify for admission into the Witness
complaint by the court in order that he may be a State Protection Program. The admission as a state witness
Witness pursuant to Section 9 and 10 of Rule 119 of under Republic Act No. 6981 also operates as an
the Revised Rules of Court may upon his petition be acquittal, and said witness cannot subsequently be
admitted to the Program if he complies with the other included in the criminal information except when he
requirements of this Act. Nothing in this Act shall fails or refuses to testify. The immunity for the state
prevent the discharge of an accused, so that he can be witness is granted by the DOJ, not by the trial court.
used as a State Witness under Rule 119 of the Revised Should such witness be meanwhile charged in court as
Rules of Court. an accused, the public prosecutor, upon presentation to
him of the certification of admission into the Witness
Save for the circumstance covered by paragraph (a) of Protection Program, shall petition the trial court for the
Section 10, supra, the requisites under both rules are discharge of the witness.46 The Court shall then order
essentially the same. Also worth noting is that an the discharge and exclusion of said accused from the
accused discharged from an information by the trial information.47
court pursuant to Section 17 of Rule 119 may also be
admitted to the Witness Protection Program of the DOJ The admission of Dalandag into the Witness Protection
provided he complies with the requirements of Republic Program of the Government as a state witness since
Act No. 6981. August 13, 2010 was warranted by the absolute
necessity of his testimony to the successful prosecution
A participant in the commission of the crime, to be of the criminal charges. Apparently, all the conditions
discharged to become a state witness pursuant to Rule prescribed by Republic Act No. 6981 were met in his
119, must be one charged as an accused in the case. That he admitted his participation in the
criminal case. The discharge operates as an acquittal commission of the Maguindanao massacre was no
of the discharged accused and shall be a bar to his hindrance to his admission into the Witness Protection
future prosecution for the same offense, unless he fails Program as a state witness, for all that was necessary
or refuses to testify against his co-accused in was for him to appear not the most guilty. Accordingly,
accordance with his sworn statement constituting the he could not anymore be charged for his participation
basis for his discharge. 40The discharge is expressly left in the Maguindanao massacre, as to which his
to the sound discretion of the trial court, which has the admission operated as an acquittal, unless he later on
exclusive responsibility to see to it that the conditions refuses or fails to testify in accordance with the sworn
prescribed by the rules for that purpose exist.41 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.