1

REPUBLIC OF THE PHILIPPINES

National Capital Judicial Region
METROPOLITAN TRIAL COURT
Branch 47, Pasay City

PEOPLE OF THE PHILIPPINES,

Plaintiff,
CRIM. CASE NO. M-PSY- 11-13939
-versus- FOR: GRAVE COERCION

CAPT. CHARLES DEEN JR. ET AL.,

Accused.
x--------------------------------------------x

RESOLUTION

Courts are required to put the prosecution evidence through the crucible of a
severe testing, and the constitutional right to presumption of innocence requires them
to take a more than casual consideration of every circumstance or doubt favoring the
innocence of the accused.1

THE CHARGE

Accused Capt. Charles Deen Jr., Ana Zuniga, Patricia Anne Romey and Jennifer
Inopea stand charged with Grave Coercion under Article of the Revised Penal Code,
the accusatory portion of the Information, reads as follows:

That on or about 21st day of April, 2010, in PasayCity, Metro

Manila, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring and confederating together and
mutually helping one another, without authority of law and by means of
threats, intimidation, did then and there wilfully, unlawfully and
feloniously prevent private complainant Tay Chun Say from taking
Philippine Airlines Flight PR-306 bound for Hong Kong by compelling
said complainant to disembark the said PAL Flight, thus preventing said
complainant from doing something not prohibited by law.

CONTRARY TO LAW.

THE COMPLAINT

Private complainant Chun Suy Tay a.k.a Joseph Tay alleged that he is a
businessman engaged in international trading who is regularly travelling abroad. He is a
regular passenger of the Philippine Airlines (PAL) for over thirty (30) years. On April
21, 2010, he was booked on PAL Flight PR 306 of the departure time of 2:45 p.m. bound

1 People vs. Santos, Jr., G.R. No. 175593, October 17, 2007.
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for Hong Kong to attend an important business meeting, to close and to sign contracts
in the amount of Ten Million Dollars ($10,000,000.00) and Five Million Dollars ($5,
000,000.00). On his scheduled flight, he checked in at the PAL counter at around 2:00
p.m. He was assigned seat no. 68H on board PAL Flight PR 306. He observed that the
front row seats, which were mot business class seats, but the front row mentioned
belonged to the economy class that he fully paid, were not occupied and the passengers
were not boarding the aircraft anymore. He seated himself in the middle front row seat
instead of his assigned seat since the same was vacant, because of his being a frequent
traveller, he knows the existing policy, that is announced by PAL management inside the
aircraft that if seats in the aircraft are not fully occupied in domestic or foreign flights,
passengers are allowed to sit themselves in vacant seats and they will not be charged
additional amount for such transfer. He was accustomed to this procedure in the years
he has been boarding PAL, as well as in other airlines whether domestic or foreign
flights. After he seated himself in the front row middle seat, a PAL male steward of
Flight PR 306 approached him and asked for his boarding pass which he immediately
gave to the steward. The male steward arrogantly told him to sit somewhere else. He was
surprised with the arrogance of the steward and asked him, Why? The steward
answered that the seat was with additional payment. He was further surprised because
this was the first time he was being assessed additional charges for transferring to
another seat in more than thirty (30) years that he has been boarding PAL. For
justifiable, rightful and valid reasons, he asked the male steward to show him the rules
or policy of PAL from the Civil Aviation Authority of the Philippines or from any
appropriate government agency authorizing additional charges so he will pay it
immediately. The steward, instead of explaining to him the additional charges and
providing him with the document authorizing the imposition of said charges,
confiscated his boarding pass. A stewardess came and informed him that he needed to
pay additional charges if he wanted to sit in the front row. The crew members of PAL
never inform or disclose to him the amount they will charge for taking a seat different
from the boarding pass. This additional charge was not informed when he checked in
for the flight. They did not show a written policy or rule approved by government agency
to justify the assessment or collection of additional fees. This is the first time he was
asked to pay additional charges for transferring to another seat in his thirty (30) years
boarding with PAL. The male steward shouted and said, What is your problem? He
replied in clam tone, I have no problem, you are the one creating problem for me. What
is wrong? The male steward turned his back and told the other stewards in a very loud
voice and threatening voice, Wala na yun. Off load na siya due to security risk. For
him, such comment is absurd and unjustified because what security risk was the male
steward talking about. To make matter worse, it was maliciously and feloniously
announced by the pilot over the public announcement system inside the aircraft that,
We apologize. There is a troublemaker on board the aircraft that is creating a problem.
He was humiliated. He was merely requesting for a copy of the policy or regulation of
PAL, and now, he was unlawfully humiliated in front of passengers. Thereafter, a
stewardess opened the aircraft door and then the two police officers which he later come
to know as Rosendo Jaspe and Joie Basco, appeared and informed him that PAL
management accused him for being a security risk, and they were ordered to arrest and
remove him from the aircraft and be brought to the police station. Moreover, a PAL
employee illegally got and confiscated his passport. He was shocked by the GESTAPO
like actions of the PAL employees. He pleaded with the female stewardess, Tell me how
much should I pay you? The female stewardess arrogantly replied, Sorry, it is no
longer our business. You are now under police custody. We are now turning you over to
police for investigation and detention. When he was escorted by the police officers,
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they told him they do not know what happened. PAL did not file any formal notice,
complaint or memo to the police. PAL wanted the police to investigate and detain him,
PAL employees did not disclose their identities except a certain Jenny Lyn Angbeng.
Even it was against his will to be removed from the aircraft with humiliation and
treatment of a criminal, he forced to accede and quietly went with the police officers to
avoid further embarrassment and to avoid causing commotion that would disturb the
peace and order inside the aircraft, despite the fact that he was already worried about
failing to catch the flight to Hong Kong to attend to his business deal in China.
Moreover, when he was being arrested and brought down the aircraft, some passengers
jeered as he was publicly announced in the aircraft as troublemaker. It was his most
humiliating experience in his life. He was escorted by two female PAL employees, three
male PAL employees and the two police officers from the plane to the police office. He
was detained at the police office. When asked by P/Insp Felix what happened, the PAL
employees alleged that he violated PAL regulation. Two female PAL employees brought
a memorandum dated March 8, 2010 relating to guidelines on the chair economy sub-
charges, regional 20.00 US dollar. He was refused for a photocopy. He explained what
happned to him was unfair, illegal and felonious, a harassment and so he will take an
appropriate action for an undue harm committed against his person and honor. The
older PAL employee blurted out, Do not threaten us. You are the one we want to sue
that is why you are being detained and investigated in this police office. So do not
threaten us. When he asked for her name, she ran away with a younger female PAL
employee. He has a conversation in Chinese language with a female PAL employee.
Police officers asked PAL management if they are going to file a complaint against him.
Jenny Lyn Angbeng answered they are no longer interested in filing a complaint and
she immediately left. He was then brought by PAL employees to an area in the airport to
personally retrieve his baggage. When he got his passport, there was an immigration
stamp for his exit even though he never left the country. His passport now contains an
irregular immigration stamp that indicated he left for Hong Kong on April 21, 2010
though he did not leave the Philippine territory.

THE JOINT COUNTER-AFFIDAVIT

Accused Capt. Charles Deen Jr., Ana Zuniga, Patricia Anne Romey and
Jennifer Inopea asseverated that that the complaint dated July 21, 2010 with
supplemental complaint dated October 12, 2010 of private complainant Chun Suy Tay
should be dismissed outright for grave substantial defects. Charging them of five
offenses constituted duplicity of offense under Rule 110, Section 10 of the Revised Rules
of Criminal Procedure. The factual allegations therein do not state facts and
circumstances necessary to constitute any of the crimes charged. The complaint merely
alleges baseless and self-serving allegations which, with all due respect, plainly spoke of
the frivolous lament of an arrogant passenger whose pride and ego were surprisingly
bruised because of the shallow reason that he was not allowed to occupy a Choice
Economy Seat (CES)_ which he did not pay for, instead of his actual seat assignment in
accordance with existing airline policies. No other conclusion can be made except that
the only purpose the complaint against them was filed is to harass them as PAL
employees who lawfully and properly did their jobs and duties under the law. The
complaint was motivated by sinister or devious design to vex and humiliate them. It was
initiated deliberately by complainant Chun Suy Tay for such sinister or devious
purposes knowing that the charges are false and groundless. They all refute the
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allegations of complainant. On March 11, 2010, all PAL flight pursers, domestic head
cabin attendants (DHCA) and cabin crew were given copies of Cabin Crew Advisory ISS
10-029 directing them to implement and comply with the Choice Economy Seat
Surcharge (CESS) policy of PAL, approved by Civil Aeronautics Board (CAB) on
February 17, 2010. The Advisory stated:

Background:
In line with PALs initiatives to generate incremental revenue, Revenue
Management introduced the Choice Economy Seat Surcharge (CESS) for
bulkhead and emergency exit seats for all PR operated flights except MNL/
CEB and JAPAN flights.

Basic information:

Upon check-in, all qualified passengers who shall avail of the choice seats
(bulkhead/exit row seats) shall be charged correspondingly as follows:

Transpacific / Australia/Ruh USD50

Regional USD20

Domestic PHP200 + vat
All transactions shall be done upon check-in. No transactions inflight.

XXX XXX XXX

General guideline:
Transferring of passenger to bulkhead / exit row seats shall not be allowed
inflight.

Flight Pursers / DHCAs:

Please brief your crew accordingly
For your guidance and strict compliance.

They alleged that as PAL employees, it is their duty and responsibility to

implement such rules and regulations and policies issued by PAL management. All flight
attendants, accused flight purser Ana Zuniga and all crew members have the duty,
under the law, to ensure that safety measures as well as good order and discipline in the
cabin are enforced and maintained at all times throughout the whole flight. On April 21,
2010, few moments after the last passenger had boarded, flight purser Ana Zuniga
informed the passengers of flight PR306 of the CESS policy of PAL over the passenger
address system as part of her speech before every flight. Thereafter, the external doors
of the aircraft of flight PR306 were closed at exactly 1440 or 2:40 p.m. as indicated in
flight incident report. The fact that the external doors of the aircraft were already closed
following embarkation is important to note since, as will be explained, this will trigger
the applicability of the Convention on Offenses and Certain Other Acts Committed on
Board Aircraft otherwise known as the Tokyo Convention which among others,
grants immunity to the aircraft operator, captain and crew members from suit or
liability for acts taken in dealing with unruly passengers such as herein complainant.
The Tokyo Convention was signed by the Philippines on September 14, 1963 and it was
made effective as part of the law of the land on December 4, 1969. According to accused
flight attendant Patricia Anne Romey, while flight purser Ana Zuniga was making her
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speech and about to play the safety video, she approached complainant who was
occupying seat no. 31E, one of the Choice Economy Seats (CES) instead of his assigned
seat. As part of standard procedure, she asked complainants boarding pass. This is
contrary to his allegation that a male steward approached him. Accused flight
attendant Patricia Anne Romey was able to confirm that complainant Chun Suy Tay
was in fact assigned to seat no. 68H as indicated in his boarding pass. She was aware of
the CESS policy of PAL, so she politely directed complainant to transfer to his assigned
seat (68H). But complainant Chun Suy Tay tauntingly and insultingly retorted: What if
I dont want to to her surprise. The arrogance of complainant is highlighted in his
complaint where he would justify his unauthorized occupancy of the CES by reasoning
that he as a frequent traveller knows that policies of PAL better than the PAL crew
themselves. They deny the complainants allegations that there is an existing PAL policy
which allows the passengers to automatically occupy vacant seats of their choice, for
being baseless, self-serving and utterly false. Taking other seat than the assigned seat on
board a plane is against good order, safety and discipline. If at all, passengers must first
ask permission from the crew before they are permitted to transfer seats, which
permission may be withheld for valid reasons. This is especially true for CES seats for
which other passengers pay additional fees to enjoy the wider leg room and space
designed to give additional comfort and convenience. Shocked, accused flight attendant
Patricia Anne Romey went to accused flight purser Ana Zuniga to inform the latter of
the situation. When accused flight attendant Patricia Anne Romey went back,
complainant stood up and followed her at the middle of the galley, where he pointed a
finger at her and threatened that he will have her terminated. This was witnessed by
accused flight attendant Jennifer Inopea. To help pacify complainant, accused flight
attendant Patricia Anne Romey and flight purser Ana Zuniga explained again to him the
PALs policy on CESS and the seat he was occupying is CES, for which a corresponding
fee was charged. Accused flight purser Ana Zuniga suggested to the complainant that if
he wanted to, he could pay the fee once the aircraft lands in Hong Kong. Complainant
Chun Suy Tay did not listen to the explanation, instead, he become more belligerent
and has the audacity to ask why he should pay the additional fee for seat no. 31E when
PAL allegedly owed him a lot of money. His arrogance is seen once again when despite
being informed of the true existing policies of PAL, he would abuse the crews
hospitality and in a high handed manner, insist that they produce before him, right then
and there, the basis of the additional payment while he defiantly continued to occupy
CES no. 31E. With complainants arrogance, he did not mind delaying the flight for the
other passengers just because he was in a quandary as to what and how much the
additional charge is. He threatened the crew that he would sue PAL and have all of them
terminated. He demanded for their names and warned them to just wait for their pink
slips (notice of termination). He started shouting that PAL owed him a lot of money,
even millions, that he would have one of APLs aircraft attached and see to it that PAL
would have no more planes to fly. The situation had deteriorated to a point that the
crew had to inform the situation to the accused Captain Charles Deen Jr. , as the
commander of the aircraft. When he approached the complainant, he was not spared
with the latters overbearing and impertinent attitude, when he inquired what is the
problem, the complainant arrogantly retorted, You are the problem, all of you! With
complainants menacing glare and belligerent attitude, it was apparent to Captain
Charles Deen Jr. that complainant cannot be reasoned with and his acts are
jeopardizing good order and discipline on board the aircraft. Due to complainants
obstinate demand, the aircraft had to be stalled at the parking bay and the flight
unreasonably was delayed for almost thirty minutes thereby infuriating other
passengers such that the crew even heard some of them howled at complainant Get out,
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get out, get out! Complainant Chun Suy Tay gave the accused Captain Charles Deen
Jr. no other choice but to have security disembark him. Thus, in the exercise his
authority as the commander of the aircraft, accused Captain Charles Deen Jr. radioed
the ground security and directed the crew to re-open the doors of the aircraft. There is
no truth to the allegation of the complainant that police officers were ordered to arrest
and detain him for being self-serving, false and misleading. The truth of the matter, the
order given by the Captain was merely to re-open the doors of the aircraft and have the
complainant disembarked or off-loaded. No order of arrest was ever given by the
Captain. This is supported by complainants admission when he quoted the captain
allegedly saying, Wala na yun off load na siya due to security risk. They deny the
allegation of complainant that the pilot announced over the passenger address system
that there is a trouble maker on board the aircraft that is creating a problem or any
other statement to that effect, for being self-serving, completely false and misleading.
Being a pilot for more than 31 years, Captain Charles Deen Jr. knows that statements
would alarm or make other passengers anxious and worried, they should not be made
on board any aircraft especially over passenger address system. Simple common sense
dictates that this will only aggravate the situation. He informed the other passengers
why the flight was delayed, by using very general and in standard statement, Ladies
and gentlemen, we apologize for the delay. We have a security problem on board. Please
bear with us. When accused flight purser Ana Zuniga and flight attendant Patricia
Anne Romey entered the aircraft, they tried too to ask complainant to returned to his
assigned seat, complainant remained adamant and he refused to move. Airport Police
Department (APD) and Philippine National Police (PNP) personnel also entered the
aircraft. It was the growing impatience of other passengers who were still shouting, Get
out, get out, get out! that finally made complainant stand up, get his hand carried
baggage and leave the aircraft to which all the forward economy passengers clapped and
cheered. In the ordinary course of flight operations, and part of the accused captain
Charles Deen Jr.s usual duty, he executed a Journey Report for PAL flight PR306 and
signed, together with accused flight purser Ana Zuniga a Flight Disturbance Complaint
Report, both containing a narration of the incident involving the disruptive and
belligerent behaviour of complainant Chun Suy Tay. The complaint on its face is
insufficient to create a belief that any of the alleged crimes were committed. The
complainants allegations are vague, ambiguous and insufficient. Some of the alleged
facts do not specify what each of the herein accused committed. The accused have no
direct personal participation or involvement in the incident complained of. A closer look
of the complaint revealed that the factual allegations therein do not state facts and
circumstances necessary to constitute any of the crimes charged. The complaint itself
showed that complainant was not arrested or detained. His statements were
contradictory. He cannot substantiate his arrest and detention. Complainant was merely
escorted off the aircraft upon the lawful and justifiable orders of the Captain because of
his stubborn and arrogant refusal to follow the instructions of the crew and the Captain.
Complainant committed the acts that jeopardized good order and discipline on board
the aircraft. After being deplaned, he was brought to an area in the airport to
personally retrieved his baggage. Where was the detention or deprivation of liberty
complainant is wailing against? Neither was there any coercion, violence, threats or
intimidation used at the complainant in any time. It was the pressure of the other
passengers who were clamouring for him to get out, that made him leave the aircraft.
Also, and more importantly, it was the complainant who intimidated and threatened
the crew when he promised to have them all terminated. His stubborn refusal to vacate
the CES and to transfer to his assigned seat until and unless the basis for the CESS
policy is brought to him, right there and then, can even be considered a form of
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coercion which prevented the flight from departing on time. Complainant committed
acts that jeopardized good order and discipline on board the aircraft that violated penal
laws. Complainant committed the acts of disrespect against the captain in front of the
crew and passengers, undermined the captains authority as commander of the aircraft.
He defied and challenged the instructions of accused flight purser Ana Zuniga, as a
person-in-charge of the cabin under the Captains direct command, not only constitutes
behaviour that jeopardized good order and discipline on board the aircraft but worse
interfered with her duties as flight purser. The belligerent and defiant acts of
complainant while the safety video was being shown compromised good safety on board
by preventing other passengers from watching and understanding the safety video.
Complainants acts in intimidating and threatening the crew members career and
welfare, not only constitute behaviour that jeopardized good order and discipline, this
caused stress and anxiety to the crew that interfered and affected the performance of
their duties for the entire flight. The acts of the complainant are punishable as criminal
offenses under RA no. 9497, known as the Civil Aviation Authority Act of 2008. Its
Section 81 (b) (9) and (12) of RA no. 9497 provide:

SEC. 81. Penalties. - (a) The Director General, after due notice and hearing, is
authorized to impose the following fines and penalties for each violation of this Act:

(b) The following penalties may only be imposed by a court of competent

jurisdiction after the filing of a proper criminal complaint therein by the Director
General and a finding of guilt:

XXX XXX XXX

(9) Any person who, while on board an aircraft, interferes with a crewmember's
or flight attendant's performance of their duties, assaults, intimidates, or threatens any
crewmember or flight attendant, shall be subjected to imprisonment from one (1) year
to three (3) years or a fine of not less than Fifty thousand pesos (Php50,000.00) but not
exceeding Five hundred thousand pesos (Php500,000.00), or both, as determined by
the court;

XXX XXX XXX

(12) Any person who, while on board an aircraft, commits any other act not
otherwise expressly covered under clauses (8), (9), (10) and (11) above which
jeopardizes the safety of the aircraft or of persons or property therein, or which
jeopardizes good order and discipline on board such aircraft shall be subjected to
imprisonment from six (6) months to three (3) years or a fine of not less than Fifty
thousand pesos (Php50,000.00) but not exceeding Five hundred thousand pesos
(Php500,000.00), or both, as determined by the court. [Convention on Offenses and
Certain Other Acts Committed on Board Aircraft, signed at Tokyo, 14 September 1963,
Art. 1(b)].

Accused Captain Charles Deen Jr.s authority under the law is based on the
Tokyo Convention citing Article 6 and 8 thereof.
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Article 6

1. The aircraft commander may, when he has reasonable grounds

to believe that a person has committed, or is about to commit, on board the
aircraft, an offence or act contemplated in Article 1, paragraph 1, impose
upon such person reasonable measures including restraint which are
necessary:
(a) to protect the safety of the aircraft, or of persons or
property therein;
(b) to maintain good order and discipline on board.

XXX XXX XXX

Article 8

1. The aircraft commander may, in so far as it is necessary for the

purpose of subparagraph (a) or (b) or paragraph 1 of Article 6, disembark
in the territory of any State in which the aircraft lands any person who he
has reasonable grounds to believe has committed, or is about to commit, on
board the aircraft an act contemplated in Article 1, paragraph 1(b).

Also, all the accused cited the following provisions of the Tokyo Convention:

CHAPTER I

SCOPE OF THE CONVENTION

Article 1
1. This Convention shall apply in respect of:
(a) offences against penal law;
(b) acts which, whether or not they are offences, may or
do jeopardize the safety of the aircraft or of persons or property
therein or which jeopardize good order and discipline on board.
2. Except as provided in Chapter III, this Convention shall apply
in respect of offences committed or acts done by a person on board any
aircraft registered in a Contracting State, while that aircraft is in flight or on
the surface of the high seas or of any other area outside the territory of any
State.

CHAPTER III

POWERS OF THE AIRCRAFT COMMANDER

Article 5
1. The provisions of this Chapter shall not apply to offences and
acts committed or about to be committed by a person on board an aircraft
in flight in the airspace of the State of registration or over the high seas or
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any other area outside the territory of any State unless the last point of takeoff
or the next point of intended landing is situated in a State other than that
of registration, or the aircraft subsequently flies in the airspace of a State
other than that of registration with such person still on board.
2. Notwithstanding the provisions of Article 1, paragraph 3, an
aircraft shall for the purposes of this Chapter, be considered to be in flight
at any time from the moment when all its external doors are closed
following embarkation until the moment when any such door is opened for
disembarkation. In the case of a forced landing, the provisions of this
Chapter shall continue to apply with respect to offences and acts committed
on board until competent authorities of a State take over the responsibility
for the aircraft and for the persons and property on board.

Article 10

For actions taken in accordance with this Convention, neither the

aircraft commander, any other member of the crew, any passenger, the
owner or operator of the aircraft, nor the person on whose behalf the flight
was performed shall be held responsible in any proceeding on account of the
treatment undergone by the person against whom the actions were taken.

The Tokyo Convention is applicable because the external doors of the aircraft
were closed following embarkation. The Flight Report Incident as well as the complaint
supported this applicability. The frivolous and unfounded complaint will hamper and
debilitate public servants from the proper and effective discharge of their official duties.
Therefore, the complainant against them must be dismissed for lack of merit.

MOTION FOR JUDICIAL DETERMINATION OF

PROBABLE CAUSE AND TO DISMISS

Accused Capt. Charles Deen Jr., Ana Zuniga, Patricia Anne Romey and Jennifer
Inopea through their counsels Atty. Minerva Pena Miclat-Capulong and Atty. Jose
Cabatuando Jr. alleged that on May 19, 2011, an Information for Grave Coercion was
filed by Assistant City Prosecutor Josefina Muego against the herein accused. Contrary
to the findings, there is absolute lack of evidence to support the presence of probable
cause for grave coercion against them. Hence, the Honorable Court needs to re-evaluate
the evidence and record before proceeding with further trial. Under Article III, Section 2
of the 1987 Constitution, and citing the jurisprudence in Allado vs. Diokno, there is a
need for the trial court to conduct a personal determination of probable cause, and until
then, no warrant of arrest should be issued , and if one had been issued, the warrant
should be recalled. Under Rule 112, Section 6 (b) in relation to paragraph (a) of the same
section of the Rules of Court, the trial court has the power to dismiss the complaint
against the accused when on its face it clearly fails to establish probable cause. AT the
outset, it bears stressing that Assistant City Prosecutor Jannette Herras-Baggas who
first investigated the case dismissed the complaint against the accused for lack of
probable cause which was concurred by Senior Assistant City Prosecutor Dolores Rillera
and approved by City Prosecutor Elmer Mitra. Quite curiously, however, the motion for
reconsideration of herein complainant was granted and it reversed the findings in part
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of the first investigating prosecutor. In the same resolution, accused Jennifer Inopea
was not among the respondents recommended charged with grave coercion but out of
the blue, she was named as an accused. A closer look at the provisions of the Revised
Penal Code and jurisprudence on Grave Coercion indubitably shows that the accused
lack culpability for this crime. The elements that would justify Grave Coercion, namely:
(1) that a person prevented another from doing something not prohibited by law, or that
he compelled him to do something against his will, be it right or wrong; (2) that the
prevention or compulsion be effected by violence, either by material force or such
display of it as would produce intimidation and control the will of the offended party;
and (3) that the person who restrained the will and liberty of another had not the
authority of law or the right to do so, or in other words, that the restraint shall not be
made under authority of law or in the exercise of lawful right( Timoner vs. People 175
SCRA 830; People vs. Camet, CA GR No. 13777, September 22, 1955; People vs.
Picunada (CA) 43 O.G. p. 2222). Complainants alleged claim that he was compelled by
the accused to disembark from the plane does not constitute grave coercion as penalized
under Article 286 of the Revised Penal Code. The salient facts of this case were not
disputed by the herein complainant revealed: (1) complainant purchased an ordinary
economy seat in an airline manned by the accused; (2) instead of taking his seat (No. 68
H) as appearing in his boarding pass, he insisted in occupying CES No. 31-E, a choice
economy seat, for which extra charges need be paid in accordance with the planes
choice economy seat policy duly approved by Civil Aeronautics Board; (3) that even after
he was politely informed of this policy and given the choice of paying later in Hong Kong
by the accused (Zuniga and Romey), complainant was, and continued to be
argumentative with and belligerent to the accused, threatening to have them fired from
work and hurling barrage of verbal abuses at them; (4) even the accused Deen, as
commander of the aircraft in charge of the aircrafts security and keeping good order
and discipline inside the aircraft, was not spared from the impertinent and overbearing
attitude of the complainant when he tried to pacify complainant; (5) complainant
inobstinately refused to go back to his seat and continued to make trouble in the plane,
driving passengers to jeer and howl at him to get off the plane; (6) complainant
committed all these belligerent and defiant acts while the planes safety video was being
played; (7) meanwhile, the flight had been unreasonably delayed as the plane had to be
stalled at the bay at complainants stubborn demands that he be shown a copy of the
planes choice economy seat policy; (8) due to complainants continued disobedience of
the accuseds instruction to go back to his seat and fear of even worse trouble during the
flight as complainant became more agitated, and passengers worsening annoyance
over complainant for causing trouble and flight delay, airport security consisting of
personnel from Airport Police Department (APD) and Philippine National Police (PNP)
had to intervene; (9) still, complainant was unflinching, leaving airport security without
a choice but to offload him from the plane; and (10) complainant voluntarily went down
with the airport security personnel to the police station. The accused Deens act of
directing the disembarkation of complainant from the plane on account of the latters
unruly behaviour that did not only jeopardized the planes safety, good order and
discipline, but likewise qualified for criminal offenses under Section 81 (b) 9 and 12 of
the Civil Aviation Authority Act of 2008 ( RA no. 9497) was done in the discharged of
the accuseds duty as commander of the aircraft, therefore, under lawful authority as
provided under Article 6 of the Tokyo Convention. Without doubt too, complainant
jeopardized the good order and discipline , and the safety of the plane when he (i)
unjustifiably fought with the crew while the safety video was on going, thereby,
distracting passengers concentration; (ii) haughtily disrespected accused Deen, who is a
person-in-authority being the commander of the aircraft, in the presence of his crew and
 11

the passengers; (iii) unwarrantedly defied the lawful instruction of the crew to go back
to his assigned seat; and (iv) whimsically held on to a seat, which was not assigned to
him, and for which he did not pay for. Evidently, from the foregoing, the third element
of grave coercion, that the accused acted without lawful authority, is absent in the case
at bar. There is no basis to hold accused Deen for trial. Now, the Tokyo Convention is a
treaty which the Philippines is a signatory on September 14, 1963. As such, it forms a
part of the law of the land as explained in Pharmaceutical and Health Care Association
of the Philippines vs. Health Secretary Duque, GR No. 173034, October 9, 2007.
Consequently, the courts are duty bound to take judicial notice thereof. Accused Deens
instruction to have complainant offloaded finds legal justification under the provisions
of the Philippine Airlines Basic Operations Manual on Public Liability, Ocurrences on
Board, Offenses Committed on Board and Right to Refuse Carriage duly approved by the
Civil Aviations Authority of the Philippines (CAAP) on February 15, 2010, after having
met the requirements of the Philippine Civil Air Regulations Part 9, 9.3.1.2 (
Implementing Standards). In the absence of criminal intent in directing the
complainants disembarkation, the accused Deen should not be held liable for the charge
of grave coercion. Neither the other accused Zuniga, Romey and Inopea be charged of
conspiracy to commit grave coercion with the accused because they mrely implemented
in good faith the choice economy seat policy of the plane. In Timoner vs. People, 125
SCRA 830, it was held that where a person acted in good faith in the performance of
his duty, no criminal liability for grave coercion is committed. Moreover, conspiracy
must be proved by an overt act. Mere presence at the scene of the incident, knowledge
of the plan and acquiescence thereto are not sufficient grounds to hold a person liable as
a conspirator ( People vs. Ballesta, GR No. 181632, September 25, 2008). Conspiracy
cannot be established by mere inferences or conjectures (Paredes et al. vs. Calilung, GR
No. 156527, March 5, 2007). They disagreed with the findings of Assistant City
Prosecutor Muego that complainant was compelled to leave by display of force i.e.
calling the personnel of the APD and PNP, who took custody of the complainant
because it is inconceivable how could the mere act of calling the police be deemed a
display of force. Notably, it is the complainant who was the abusive and obnoxious party
in this case. He fully knew well that he had no right to occupy a CES seat, yet instead of
listening to the crews justifiable instruction to go back to his seat, fought with them and
caused trouble in the plane. Under Article 10 of the Tokyo Convention, the aircraft
operator, captain, crew members are duty bound to deal with such unruly behaviour,
and in turn, they are granted immunity from suit or liability for dealing such act. The
accused are protected by the Tokyo Convention from the suit. To rule otherwise would
have chilling effect on the proper and effective discharge of their official duties which ,
to be sure, would compromise the safety, good order and discipline on board a plane
the very evil sought to be avoided for granting such immunity. All told, it is plain and
clear that there is no sufficient evidence on record to sustain the finding of probable
cause to hold the accused for trial for the crime of Grave Coercion. The case must be
dismissed. In Santos vs. Orda Jr., GR No. 189402, May 6, 2010, it was held by the
Supreme Court, We would like to stress that the purpose of the mandate of the judge to
first determine probable cause is to insulate from the very start those falsely charged
with the crimes from the tribulations, expenses and anxiety of the public trial. They
also cited Saavedra Jr. vs. DOJ, 226 SCRA 444 that the duty of prosecutor during
preliminary investigation demands outright termination of criminal prosecution when
at the very start, it was bereft of factual and legal bases.
 12

OPPOSITION OR COMMENT

Private complainant Chun Suy Tay a.k.a Joseph Tay through his counsel Atty.
Teresita Marbibi argued that accuseds motion for judicial determination of probable
cause and to dismiss lacked sufficiency in form and in substance. According to the
complainant, the motion averred factual issues within the purported knowledge of the
accused, it should have been verified. The attachments of the motion are not certified
true copies. The motion failed to comply with the mandatory requirement of the three
day prior notice rule in violation of Rule 15, Section 4 of the Revised Rules of Court
providing:

Sec. 4. Hearing of motion.

Except for motions which the court may act upon without prejudicing the rights
of the adverse party, every written motion shall be set for hearing by the
applicant.

Every written motion required to be heard and the notice of the hearing thereof
shall be served in such a manner as to ensure its receipt by the other party at least
three (3) days before the date of hearing, unless the court for good cause sets the
hearing on shorter notice.

The accused violated Rule 13, Section 2 of the Revised Rules of Court when they
failed to give copy of their motion to him, to quote:

Sec. 2. Filing and service, defined.

Filing is the act of presenting the pleading or other paper to the clerk of court.

Service is the act of providing a party with a copy of the pleading or paper
concerned. If any party has appeared by counsel, service upon him shall be made
upon his counsel or one of them, unless service upon the party himself is ordered
by the court. Where one counsel appears for several parties, he shall only be
entitled to one copy of any paper served upon him by the opposite side.

He contended that the courts order dated May 26, 2011 stated, Finding the
information dated May 19, 2011 filed by Assistant City Prosecutor Josefina F. Muego to
be sufficient in form and substance, let a warranty of arrest be issued against the
accused Capt. Charles D. Deen Jr., Ana Zuniga, Patricia Anne Romey and Jennifer
Inopea cannot anymore be subjected of a motion for judicial determination of probable
cause and to dismiss , the Honorable Court have determined already probable cause that
exists warranting the issuance of warrant of arrest. The said order become final and
executory. The said order was not assailed promptly, and the accused posted the bail for
their provisional liberty. Accused should now be arraigned as they failed to appeal the
Resolution to the DOJ. Pursuant to Section 5 (a) , Rule 112 of the Revised Rules of
Court, the judge of trial court is mandated to personally evaluate the resolution of the
prosecutor and its supporting evidence to determine whether probable cause exists and
pursuant to its own findings, either dismiss the case immediately if there is no probable
 13

cause. Even before the effectivity of this Rule, the High Court enunciated the following
ruling in Crespo vs. Mogul (151 SCRA 462), to wit, The preliminary investigation
conducted by the fiscal for the purpose of determining whether a prima facie case exists
warranting the prosecution of the accused is terminated upon the filing of the
information in the proper court. In turn, as above stated, the filing of said information
sets in motion the criminal action against the accused in court. Should the fiscal find it
proper to conduct re-investigation of the case, at such stage, the permission of the court
must be secured (Citing Perez vs. Hagonoy Rural bank Inc. (327 SCRA 588); Solar
Team vs. Judge How, 338 SCRA 511; People vs. Odilao, GR No. 155451, April 14, 2004).
Before the RTC issues a warrant of arrest under Section 5, Rule 112, Rules of Court in
relation to Section 2, Article III of the 1987 Constitution, the judge must make a
personal determination of the existence or non-existence of probable cause for the arrest
of the accused. Considering that the order dated May 26, 2011 stated the issuance of
warrant of arrest against all the accused, the herein Presiding Judge has performed her
work. She already determined the existence or non-existence of probable cause. The
Office of the City Prosecutor of Pasay City id not commit grave discretion in issuing the
resolution dated May 19, 2011 in finding probable cause. There is no grave abuse of
discretion by the Honorable Court in issuing the order dated May 26, 2011. The
determination of probable cause was supported by sufficient evidence. For the private
complainant, probable cause meant such set of facts and circumstances that would lead
a reasonably discreet and prudent man to believe that the offense charged in the
information or any offense included therein has been committed by the person sought to
be arrested (Webb vs. De Leon 247 SCRA 652). In determining probable cause , the
average man weights facts and circumstances without resorting to the calibrations of
the rules of evidence which he has no technical knowledge. He relies on common sense.
A finding of probable cause needs only to rest on evidence showing that more likely than
not a crime has been committed and that it was committed by the accused. Probable
cause demands more than bare suspicion, it requires less than evidence which would
justify conviction ( People vs. Aruta 288 SCRA 626). What is the purpose of judicial
determination of probable cause when the prosecutors Office already performed its job
of executive determination of probable cause warranting the crimes of grave coercion as
in fact an information had been filed in court? In the decided cases, the Supreme Court
delineated the role, function and rationale of the executive determination of probable
cause and the judicial determination of probable cause, to quote: The determination of
probable cause for the filing of an information in court is an executive function (Hegerty
vs. CA 456 Phil 542), one that properly pertains at the first instance of the public
prosecutor and, ultimately, to the Secretary of Justice (Punzalan vs. Dela pena, GR No.
158543, July 21, 2004). For this reason, the Court considers it sound judicial policy to
refrain from interfering in the conduct of preliminary investigations and to leave the
Department of Justice ample latitude of discretion in th determination of what
constitutes sufficient evidence to establish a probable cause for the prosecution of
supposed offenders. Consistent with this policy, courts do not reverse the Secretary of
Justices findings and conclusions on the matter of probable cause except in clear cases
of grave abuse of discretion (Joaquin Jr. vs. Drilon 361 Phil 900). By grave abuse of
discretion, is meant such capricious and whimsical exercise of judgment which is
equivalent to excess or lack of jurisdiction. The abuse of discretion must be so patent
and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a
duty enjoined by law or to act at all in contemplation of law, as where the power is
exercised in an arbitrary and despotic manner by reason of passion or hostility (First
Womens Credit Corp. vs. Hon. Perez et al., GR No. 169026, June 2006) citing Estrada
vs. Desierto, GR No. 156160, December 9, 2004). The determination of probable cause
 14

to issue warrant of arrest is a judicial function. Probable cause for the issuance of
warrant of arrest is the existence of such facts and circumstances that would lead a
reasonable discreet and prudent person to believe that an offense has been committed
by the person sought to be arrested. Hence, a judge before issuing a warrant of arrest,
must satisfy himself that based on the evidence submitted, there is sufficient proof that
a crime was committed and that the person to be arrested is probably guilty thereof. At
this stage of the proceeding, the judge is not yet tasked to review in detail the evidence
submitted during the preliminary investigation. It is sufficient that he personally
evaluates such evidence in determining probable cause. Otherwise, the judge merely
determines the probability, if not the certainty of the guilt of the accused and, in so
doing, he need not conduct a de novo hearing. The judge simply personally review the
prosecutors initial; determination of probable cause to see if it is supported by
substantial evidence (People vs. CA et al., GR No. 126005, January 21, 1999). These two
roles, functions and stages were performed by the Office of the Prosecutor and the
Honorable Court. Complainant charged the accused with several crimes such as
unlawful arrest, illegal detention, grave coercion, unjust vexation and falsification, only
one charge was filed in court. There is basis for the filing of charge against accused
Inopea. While it is true the WHEREFORE or the dispositive portion failed to name
accused Jenny Inopea, the same is not controlling as the substance of the body of the
resolution and its concluding statements / findings provides the ratio decidendi or
substance of the resolution dated May 19, 2011. For the complainant, all the elements of
grave coercion were established by the resolution dated May 19, 2011 of the Pasay City
Prosecutors Office. The allegations in the motion were refuted on Reply-Affidavit of the
complainant. The grounds for disembarkation must be proven in a full blown trial
because these are evidentiary in nature. The applicability of the Tokyo Convention
necessitates a determination of both the legal and factual issues in a full blown trial. The
Tokyo Convention does not apply because the aircraft involved is PAL, allegedly on
flight is registered under the Philippines, thus Philippine law applies. Assuming for the
sake of argument that aircraft was on flight ( this is not an admission that complainant
was found security risk, nor an admission that the aircraft was on flight); without those
facts, being priorly proven by substantial evidence, Tokyo Convention applies, accused
cannot yet put up this defense. Section 81 (b) 9 and 12 of the Civil Aviation Authority
Act of 2008 ( RA No. 9497) cannot help them. The arguments adduced by the accused
need trial on the merits. As correctly ruled in the resolution dated May 19, 2011 of the
Pasay City Prosecutors Office, the presumption of regularity of official duty under
Section 3 (m), Rule 131 of the Revised Rules on Evidence applies only to government
officials or government employees. He prayed that the motion for judicial
determination of probable cause and to dismiss be denied.

ISSUES

(1) Whether or not the motion for determination of probable cause and to dismiss is
insufficient in form because it lacked verification, it failed to comply with Rule 15,
Section 4 of the Revised Rules of Court and it violated Rule 13, Section 2 of the Revised
Rules of Court.

(2) Whether or not this Court can still determine probable cause despite the issuance of
warrant of arrest.
 15

(3) Whether or not the motion for determination of probable cause and to dismiss this
case should be granted.

APPLICABLE LAW

Art. 286. Grave coercions. The penalty of arresto mayor and a fine not
exceeding 500 pesos shall be imposed upon any person who, without authority of
law, shall, by means of violence, prevent another from doing something not
prohibited by law, or compel him to do something against his will, whether it be
right or wrong. If the coercion be committed for the purpose of compelling
another to perform any religious act or to prevent him from so doing, the penalty
next higher in degree shall be imposed.

RULING

As the issues in this case are intertwined, this Court begs for leave to discuss
them all jointly in order.

The motion for determination of probable cause and to dismiss is

sufficient in form.

Under Rule 15, Sections 1 to 10 of the Revised Rules of Court which is

suppletory to the 2000 Revised Rules on Criminal Procedure, there is no necessity
that a motion must be verified.

The notice of hearing rule is not applicable in this case as can be gleaned by the
Courts order dated June 27, 2011. The movant Atty. Minerva Capulong, defense
counsel, was holding a copy of the motion at that time so it did not surprise Atty.
Teresita Marbibi, private prosecutor anymore. She was able to oppose and argue orally
on Atty. Minerva Capulongs oral motion to defer arraignment for the purpose of filing a
motion to quash or to dismiss the case . Consequently, there is no need to set such
motion for a hearing day because Atty. Teresita Marbibi was notified of such motion in
open court and she was given ten (10) days to file her comment and / or opposition.
The rule on notice of hearing is relaxed in criminal cases. Where a rigid application of
the rule will result in a manifest failure or miscarriage of justice, technicalities may be
disregarded in order to resolve the cases. Litigations should be, as much as possible, be
decided on the merits and not on technicalities( Goldloop Properties vs. CA 212
SCRA 498). The granting of motion to dismiss despite the absence of a notice of
hearing or proof of service thereof is merely an irregularity in the proceeding which
cannot deprive a competent court of jurisdiction over the case (People vs. Leviste
255 SCRA 247). There are cases that cured the defect of the three day notice rule
such as when the party receive the notice (Sunga vs. Lacson 23 SCRA 393) and
filed a motion ( Llanto vs. Dimaporo 16 SCRA 599).

This Courts order dated July 14, 2011 directing defense counsels Atty. Minerva
Capulong and Atty. Jose Cabatuando Jr. to furnish copy of their motion to private
 16

prosecutor Atty. Teresita Marbibi rendered the issue on alleged violation of Rule 13,
Section 2 of the Revised Rules of Court moot and academic.

This Court can still determine probable cause despite the issuance of
warrant of arrest.

In Crespo vs. Mogul 151 SCRA 462 (1987), the Supreme Court held that once
a criminal complaint or information is filed in court, any disposition of the case or
dismissal or acquittal or conviction of the accused rests within the exclusive jurisdiction,
competence, and discretion of the trial court. The trial court is the best and sole judge on
what to do with the case before it. A motion to dismiss the case should be addressed to
the trial court that has the option to grant or deny the same. This rule applies to a
motion to dismiss the case even before or after arraignment of the accused ( Odin
Security Agency, Inc. v. Sandiganbayan, 365 SCRA 351). There is no law
proscribing the Court to take a second look at a motion to determine probable cause,
after the issuance of a warrant of arrest. The only qualification is that the action of the
trial court must not impair the substantial rights of the accused or the right of the
People or the private complainant to due process of law (Martinez v. Court of
Appeals, 237 SCRA 575). In other words, the grant of the motion to dismiss must be
based upon considerations other than the judges own personal individual conviction
that there was no case against the accused. Whether to approve or disapprove the stand
taken by the prosecution is not the exercise of discretion required in cases like this. The
trial court judge must be convinced that there was, indeed, no sufficient evidence
against the accused, and this conclusion can be arrived at only after an assessment of
the evidence in the possession of the prosecution. What was imperatively required was
the trial judges own assessment of such evidence, it not being sufficient for the valid
and proper exercise of judicial discretion merely to accept the prosecutions word for its
supposed insufficiency. Therefore, this Court is not bound by the findings of the Pasay
City Prosecutors Office in this case.

The purpose of judicial determination of probable cause is to paraphrase the

decided cases of Hashim vs. Boncan, 71 Phil. 216; Trocio vs. Manta, 118 SCRA
241 (1941); and Salonga vs. Hon. Pao, 134 SCRA 438 (1985), that is, to
secure an innocent person against hasty, faulty and, therefore, oppressive proceedings;
to protect him from an open and extensively publicized accusation of crimes; to spare
him the trouble, expense, and anxiety of a public trial; and also to protect the state from
useless and expensive trials.

To explicate the enormous power of this Court to determine probable cause, it was
held in SSS vs. DOJ et al., G.R. No. 158131, August 8, 2007, that the
prosecutors finding are not conclusive. In dismissing petitioners petition, the Court of
Appeals held: This Court has no power to determine whether probable cause to warrant
prosecution exist or not. x x x [T]he determination of whether or not probable cause
exists to warrant the prosecution in court of [respondent Martels] should be consigned
and entrusted to the Department of Justice as reviewer of the findings of the public
prosecutor x x x. In this Petition, We are being asked to assume the function of Public
Prosecutor by determining whether probable cause exists or not. Such is a function that
this Court should not be called upon to perform x x x. This is a misstatement of the
law. This Court and the Court of Appeals possess the power to review findings of
 17

prosecutors in preliminary investigations (See Ladlad vs. Velasco, G.R. Nos.

172070-72, June 1, 2007; Principio vs. Barrientos, G.R. No. 167025,
December 19, 2005, 478 SCRA 639). Although policy considerations call for the
widest latitude of deference to the prosecutors findings, (See Acua vs. Deputy
Ombudsman for Luzon, 450 SCRA 232) courts should never shirk from
exercising their power, when the circumstances warrant, to determine whether the
prosecutors findings are supported by the facts, or as in this case, by the law. In so
doing, courts do not act as prosecutors but as organs of the judiciary, exercising their
mandate under the Constitution, relevant statutes, and remedial rules to settle cases and
controversies. Indeed, the exercise of this Courts review power ensures that, on the one
hand, probable criminals are prosecuted (See NBI-Microsoft Corporation vs.
Hwang, 460 SCRA 428) and, on the other hand, the innocent are spared from
baseless prosecution (See Ladlad vs. Velasco, G.R. Nos. 172070-72, June 1,
2007). This Court wishes to emphasize that the determination of probable cause by the
Office of the City Prosecutor is merely delegated to it under the rule-making power of
the Supreme Court.

Independent Assessment of the Case

The motion for determination of probable cause and to dismiss this

case should be granted.

This Court entertains reasonable doubt as to the veracity of the charge of Grave
Coercion.

First, the complaint-affidavit is unsubstantiated. It consisted of mere allegations

of private complainant Chun Suy Tay. The basic rule is that mere allegation is not
evidence and is not equivalent to proof (De Jesus vs. Guerrero III et al., G.R. No.
171491, September 4, 2009). Allegations, unsubstantiated by evidence, are not
equivalent to proof under our Rules of Court (Manzano vs. Perez, Sr., 362 SCRA
430, 439 (2001).

Second, the complaint-affidavit did not specify who commit the alleged acts of
grave coercion as stated in the information as none of the herein accused were ever
identified and named therein. His police blotter at NCR Police Center for Aviation
Security , Pasay City named only Jenny Lyn Angbeng as respondent. There is doubt as
to the participation of each of the accused in the crime imputed against them because of
the absence of a clear and positive identification by the herein complainant. The first
duty of the prosecution is not to prove the crime but to prove the identity of the
criminal, for, even if the commission of the crime can be established, there can be no
conviction without proof of the identity of the criminal beyond reasonable doubt2
(People vs. Pineda, G.R. No. 141644, May 27, 2004, 429 SCRA 478). In that
regard, an identification that does not preclude a reasonable possibility of mistake

2 People vs. Esmale, G.R. Nos. 102981-82, April 21, 1995, 243 SCRA 578.
 18

cannot be accorded any evidentiary force3 (People vs. Fronda, G.R. No. 130602,
March 15, 2000, 328 SCRA 185). The intervention of any mistake or the
appearance of any weakness in the identification simply means that the accused's
constitutional right of presumption of innocence until the contrary is proved is not
overcome, thereby warranting an acquittal,4 (People vs. Raquel, G.R. No. 119005,
December 2, 1996; 265 SCRA 248, 259) even if doubt may cloud his innocence5
(Pecho vs. People, G.R. No. 111399, September 27, 1996, 262 SCRA 518, 533)
Indeed, the presumption of innocence constitutionally guaranteed to every individual is
forever of primary importance, and every conviction for crime must rest on the strength
of the evidence of the State, not on the weakness of the defense (People vs. Pidia,
G.R. No. 112264, November 10, 1995, 249 SCRA 687, 702).

Third, all the elements of Grave Coercion under Article 286 of the Revised Penal
Code are not established which are: (1) that a person is prevented by another from
doing something not prohibited by law, or compelled to do something against his will,
be it right or wrong; (2) that the prevention or compulsion is effected by violence,
threats or intimidation; and (3) that the person who restrains the will and liberty of
another has no right to do so, or in other words, that the restraint is not made under
authority of law or in the exercise of any lawful right. There is reasonable cause to
believe that it was complainant who caused disturbance inside the aircraft. He took a
different seat from his boarding pass. In doing this, he violated the PALs CESS policy.
The complaint affidavit showed that he got entangled verbally with a male steward who
told him that his seat has an additional payment which surprised him because it was the
first time he was assessed additional charges for transferring to another seat.6 He
considered it as a problem.7 It was a problem that caused trouble inside the aircraft
because his complaint alleged that a pilot made a public announcement inside the plane
that We apologize. There is a troublemaker on board the aircraft that is creating a
problem. This court notes that there was no mention of the troublemaker, yet it was
the complainant who got humiliated, meaning, he admits being the one alluded to as a
troublemaker. Otherwise, he will not feel humiliated at all, and so there is no reason for
him to disembark from the plane. The complaint- affidavit did not give the particular
name of the female stewardess who said, Sorry, it is no longer our business. You are
now under police custody. We are now turning you over to police investigation and
detention. These alleged words were not stated in the information against the accused
as none appeared to have uttered those words. Moreover, complainant was escorted by
the police officers.8 Nowhere in his complaint-affidavit stated that accused Capt.
Charles Deen Jr., Ana Zuniga, Patricia Anne Romey and Jennifer Inopea conspired
and confederated together and mutually helping one another, without authority of law
and by means of threats, intimidation, prevented herein private complainant from
taking Philippine Airlines Flight PR-306 bound for Hong Kong by compelling him to
disembark the said PAL Flight. Instead, he quietly went with the police officers to avoid
further embarrassment and to avoid causing commotion that would disturb the peace

3 ; Natividad vs. Court of Appeals, G.R. No. L-40233, June 25, 1980, 98 SCRA 335, 346; People vs. Beltran, L-31860, November 29,
1974, 61 SCRA 246, 250; People vs. Manambit, G.R. Nos. 72744-45, April 18, 1997, 271 SCRA 344, 377; People vs. Maongco, G.R.
Nos. 108963-65, March 1, 1994, 230 SCRA 562, 575.
4 People vs. Salguero, G.R. No. 89117, June 19, 1991, 198 SCRA 357; Natividad vs. Court of Appeals, G.R. L-40233, June 25, 1980,

98 SCRA 335, 346.

5 Perez vs. Sandiganbayan, G.R. Nos. 76203-04, December 6, 1989, 180 SCRA 9; People vs. Sadie, No. L-66907, April 14, 1987, 149

SCRA 240; U.S. vs. Gutierrez, 4 Phil. 493 (1905).

6 Paragraph 6 of Complaint-Affidavit dated July 21, 2010.
7 Paragraph 8 of Complaint-Affidavit dated July 21, 2010.
8 Paragraph 13 of Complaint-Affidavit dated July 21, 2010.
 19

and order inside the aircraft.9 Convincingly, he disembarked upon his own volition. He
left peacefully from the plane. His disembarkation was due to him, and his taking a
different seat from his boarding pass without paying for it, rather he argued with a male
steward as to what is the basis of additional charges when he was not immediately
shown document authorizing such charges, can be considered as the proximate cause.
He who is the cause of the cause is the cause of the evil caused applies to the herein
complainant as to why he was refused to be boarded by PAL. His presence in the
aircraft, causing a public disturbance and delaying the flight, is inimical to the
interest of both the other passengers and the plane. Therefore, it was justified that he be
off loaded which he did not protest at all. Had there been violence, threats or
intimidation, said complainant could have produced verifiable proofs like a medical
certificate showing that he sustained physical injuries because he resisted while being
forcibly disembarked from the plane or affidavit of a witness like his seatmate in the
plane to support his assertions. Absence of these proofs, this Court cannot overturn the
constitutional presumption of innocence enjoyed by all the accused as of this moment.
Complainant Chun Suy Tay only learned from the police officers that PAL management
accused him as a security risk and they were ordered to arrest him, remove him and
bring him to the police station.10 This a hearsay evidence. His allegations are
contradictory with the affidavit of his witnesses PO2 Joie Basco and PO2 Rosendo Jaspe
who have no personal knowledge of the incident that happened inside the plane. His
complaint and the affidavit of his witnesses did not state the attendance of force,
violence or intimidation by herein accused to make them liable for grave coercion.

Lastly, herein complainant alleged that he is bound for Hong Kong on PAL Flight
PR 306 on April 21, 2010 because he will attend important business meeting and to
close and sign two contracts in the amount of Ten Million Dollars ($10,000,000.00)
and Five Million Dollars ($5, 000,000.00), yet this Court observes that he bought the
economy class plane ticket. Common observation and experience dictate that a big shot
businessman who will sign Fifteen Million Dollars ($15, 000,000.00) contracts will
board either a business class or first class plane accommodation, and not go to an
economy class then take a Choice Economy Seat without prior permission, much more
without payment, and when asked for transfer of seat with alternative to pay, will argue
with the steward and demand the document authorizing additional charges. This casts
doubt as to the credibility of the complainant. There is no standard by which the weight
of conflicting evidence can be ascertained. We have no test of the truth of human
testimony except its conformity to our knowledge, observation, and experience.

Considering that the elements of grave coercion are absent in this case, this Court
will not discuss anymore the applicability of the Tokyo Convention and its implication
with the authority of the aircrafts captain to impose reasonable measures against the
passengers who may jeopardize good order and discipline on board the aircraft as well
as the disputable presumption of the regular performance of official duty. However, in
passing, this Court sustains the view of Assistant City Prosecutor Janette Herras-Baggas
of Pasay City Prosecutors Office.

9 Paragraph 14 of Complaint-Affidavit dated July 21, 2010.

10 Paragraph 11 of Complaint-Affidavit dated July 21, 2010.
 20

The prosecutions evidence must stand or fall on its own merit and cannot be
allowed to draw strength from the weakness of the evidence of the defense. A strong
possibility of guilt is not insufficient. The filing of a criminal case does not mean an
outright culpability of the accused. It must pass the criteria of accuracy, reliability and
credibility.

DISPOSITIVE PORTION

WHEREFORE, foregoing considered, this Court resolves to GRANT the

instant motion. This case is DISMISSED.

No pronouncement as to costs.

SO ORDERED.

Pasay City, August 1, 2011.

ELIZA B. YU
Presiding Judge
Copy furnished:
Pros. Luis Christopher Ballelos
OCP-Pasay City
Hall of Justice

Atty. Teresita Marbibi

Private Prosecutor
Marbibi and Associates Law Office
Units 505-506 Vellagio Tower
Leon Guinto St. Cor. , Malate, Manila

Atty. Minerva Miclat-Capulong

Atty. Jose Cabatuando Jr.
Defense Counsels
PAL Legal Affairs Department
8th Floor, PNB Financial Center
Pres. Diosdado Macapagal Ave.,
CCP Complex, Pasay City

Chun Suy Tay

Private complainant
10A Washington Tower, Marina,
Asia World Property, Paranaque City

Capt. Charles Deen Jr.

Ana Zuniga
Patricia Anne Romey
Jennifer Inopea
Accused
8th Floor, PNB Financial Center
Pres. Diosdado Macapagal Ave.,
CCP Complex, Pasay City
 Republic of the Philippines
COURT OF APPEALS
Manila

FOURTH DIVISION

JOSEPH TAY a.k.a. TAY CA-G.R. SP No. 128139

CHUN SUY,
Petitioner-Appellee, Members:

- versus - TOLENTINO, Chairperson

GARCIA, and
CAPT. CHARLES DEEN, JR., BUESER, JJ.
ANA ZUNIGA, PATRICIA
ANNE ROMEY, Promulgated:
Respondents-Appellants. July 17, 2013

x-----------------------------------------------------------------------------------------x

DECISION
BUESER, J.:

Captain Charles Deen, Jr., Ana Zuniga, and Patricia Anne

Romey (appellants) are before this Court with an appeal under Rule
44 of the Rules of Court seeking to reverse and set aside the Order of
the Regional Trial Court of Pasay City, Branch 109 in the case
entitled Joseph Tay a.k.a. Tan Chun Suy vs. Hon. MTC Judge Eliza
B. Yu, Ferdinand Santos OIC of MTC Branch 47, Pasay City,
Charles D. Deen, Jr., Ana M. Zuniga, Patricia Anne M. Romey,
Jennifer G. Inopea, Office of the Solicitor General dated March 12,
2012, the dispositive portions of which reads -

WHEREFORE, premises considered, the instant petition is

GRANTED. The resolution of dismissal dated August 1, 2011 and
orders dated July 29 and June 23, 2011 are nullified and/or
annulled and this case is remanded to the court a quo, MeTC Br.
47, Pasay City, Criminal Case No. M-PSY-11-13939-CR for
further proceedings.

SO ORDERED.
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and its Order dated June 14, 2012 denying appellants' motion for
reconsideration.

The Facts

Joseph Tay was booked on PAL Flight PR306 bound from

Manila to Hongkong. Upon check in, he was assigned economy seat
no. 68H. He accepted the seat assignment and did not inform the
check in counter that he preferred a choice economy seat.

Thereafter, passengers boarded the aircraft. Appellee saw that

the front row economy seats were not occupied and being a frequent
traveler and a regular passenger of PAL for the last 30 years, he
knew that passengers are allowed to occupy vacant seats, so he sat
at seat no. 31 E., instead of his assigned seat number, without
informing any of the flight attendants. A crew member approached
him and asked him to go back to his assigned seat. Appellee
refused. He was then informed that seat no. 31 E is a choice
economy seat and is subject to the payment of additional charges.

Appellee claims that the steward was arrogant and demanded

him to vacate the seat. When he refused and asked to be shown the
policy of PAL from the Civil Aviation Authority of the Philippines or
from any appropriate government agency authorizing additional
charges, the steward called the attention of other flight attendants
saying in a loud and threatening voice Wala na yun. Off load na siya
due to security risk. Thereafter, he heard the pilot announce, over
the public system, that there is a trouble maker on board the aircraft.
Suddenly, the door of the aircraft opened and two (2) police officers
came to remove him from the plane to be brought to a police station.
He pleaded with a stewardess and asked how much he should pay
for seat no. 31 E. The latter arrogantly replied, Sorry, it is no longer
our business. You are now under police custody. We are now
turning you over to police for investigation and detention.

Appellants, on the other hand, claimed that appellee was

politely approached by flight attendant Patricia Anne Romney
(appellant Romney), and was requested to occupy his assigned
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seat. Appellee, instead of heeding the request, tauntingly and

insultingly retorted What if I do not want to? Surprised, appellant
Romney walked away and went to talk to flight purser Ana Zuniga
(appellant Zuniga). The appellee followed appellant Romney and
threatened to have her terminated at the same time pointing a finger
at her. Appellants Romney and Zuniga explained to the appellee that
seat no. 31 E is a choice economy seat and has additional charges.
Appellee became more unreasonable and asked why he should pay
the additional fee. He demanded to see the policy of PAL from the
Civil Aviation Authority of the Philippines or from any appropriate
government agency authorizing additional charges. He started
shouting and threatening to have the cabin crews terminated. At this
point the commander of the aircraft, Captain Charles Deen, Jr.
(appellant Captain), was informed of the situation. The latter went
out of the cockpit, approached appellee and asked him what the
problem was. Appellee arrogantly retorted You are the problem, all
of you! Due to complainant's behavior, the aircraft was stalled and
the flight delayed, infuriating other passengers, who started shouting
Get out, get out! It is not true that appellant Captain ordered for
the arrest of the appellee nor did he announce over the public system
that there is a trouble maker on board. He merely apologized to the
passengers for the delay and informed them there is a security
problem on board. Since the appellee was unreasonable and could
not be pacified, it left appellant Captain no other choice but to have
security disembark the appellee. In fact, the appellee refused to
return to his assigned seat even when the Airport Police and
Philippines National Police entered the aircraft. It was the growing
impatience of the other passengers, who were still shouting Get out,
get out!, that finally made the appellee stand up and leave, causing
the economy passengers to clap and cheer. Afterwards, appellant
Captain executed a Journal Report for PAL Flight 306, also signed by
appellant Zuniga, narrating the incident that transpired.

Subsequently, appellee filed a complaint with the Office of the

City Prosecutor of Pasay City accusing appellants of committing
various crimes, among which was the crime of grave coercion,
alleging that appellants forced him to leave the plane and delivered
him to the authorities.

In a Resolution dated February 4, 2011, the Investigating

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Prosecutor, with the conformity of the Assistant City Prosecutor and

the City Prosecutor, dismissed the charges for lack of probable
cause.

Appellee filed a motion for reconsideration and it was granted in

a Resolution dated May 19, 2011. Hence, an Information was filed
with the Metropolitan Trial Court of Pasay (MeTC), against the
appellants, charging them with the crime of grave coercion.
Appellants filed a motion for judicial determination of probable cause
and to dismiss.1 On June 26, 2011, the appellee filed an
opposition/comment. On August 1, 2011, the appelee filed a motion
asking for a period of 15 days within which to file a supplemental
opposition/comment to the said motion for judicial determination of
probable cause and to dismiss however, this was mooted by the
MeTC's Resolution promulgated on the same date granting
appellants' motion to dismiss because-

Under Article III, Section 2 of the 1987 Constitution, and

citing the jurisprudence in Allado vs. Diokno, there is a need for the
trial court to conduct a personal determination of probable cause,
and until then, no warrant of arrest should be issued, and if one had
been issuedm the warrant should be recalled. Under Rule 112,
Section 6 (b) in relation to paragraph (a) of the same section of the
Rules of Court, the trial court has the power to dismiss the
complaint against the accused when on its face it clearly fails to
establish probable cause.

xxx

All told, it is plain and clear that there is no sufficient evidence

on record to sustain the finding of probable cause to hold the
accused for trial for the crime of Grave Coercion. The case must
be dismissed.

Aggrieved, appellee elevated the case to the trial court via a

petition for certitorari contending that the MeTC committed grave
abuse of discretion amounting to lack or in excess of jurisdiction in
dismissing the Information on the ground of lack of probable cause.
He claimed he was denied of his Constitutional right to due process
when the MeTC dismissed the complaint without trial on the merits.

1
Records, pp. 192-206.
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The Trial Court's Ruling

On March 12, 2012, the trial court issued the first assailed
Order, viz -

A careful examination of the above orders, to wit: June 2;

July 29, 2011 and Resolution dated August 29, 2011 were issued
without petitioner's time to comment and/or oppose and was an
outright affront on petitioner's right to due process.

xxx

Suffice it to say that parties, prosecution and defense, were

not able to present their evidence as the same was struck down by
the questioned orders of the Public respondent.

Appellants' subsequent motion for reconsideration was denied.

Hence, this appeal.

Issue

Whether or not the trial court erred in granting appellee's

petition for certiorari on the ground that appellee's right to
due process had been violated.

This Court's Decision

A special civil action of certiorari under Rule 65 of the Rules of

Court may be resorted to only where there is a clear showing that the
court had acted without or in excess of jurisdiction or with grave
abuse of discretion amounting to lack or excess of jurisdiction. The
abuse of discretion must be so patent and gross as to amount to an
evasion of a positive duty or a virtual refusal to perform a duty
enjoined by law, or to act at all in contemplation of law, as where the
power is exercised in an arbitrary and despotic manner by reason of
passion and hostility.2

The trial court erred in granting appellee's petition for certiorari

on the ground that appellee's right to due process was violated.
2
Punongbayan vs. Punongbayan, G.R. no. 158642, December 10, 2004.
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There is no question that the essence of due process is a

hearing before conviction and before an impartial and disinterested
tribunal but due process as a constitutional precept does not always,
and in all situations, require a trial-type proceeding. The essence of
due process is to be found in the reasonable opportunity to be heard
and submit any evidence one may have in support of ones defense.
"To be heard" does not only mean verbal arguments in court; one
may be heard also through pleadings. Where opportunity to be heard,
either through oral arguments or pleadings, is accorded, there is no
denial of procedural due process. Appellee filed a comment3 to
appellants' motion for judicial determination of probable cause and to
dismiss dated June 22, 2011 on June 26, 2011. Clearly then,
appellee was given the opportunity to be heard and there was no
denial of due process.

Rule 112, Section 6 (b) in relation to paragraph (a) of the same

section of the Rules of Court, provides that the trial court has the
power to dismiss the complaint against the accused when on its face
it clearly fails to establish probable cause.

In addition, this issue had been settled in the case of Crespo vs

Mogul4, to wit -

Once a complaint or information is filed in Court any

disposition of the case as its dismissal or the conviction or acquittal
of the accused rests in the sound discretion of the Court. Although
the fiscal retains the direction and control of the prosecution of
criminal cases even while the case is already in Court he cannot
impose his opinion on the trial court. The Court is the best and sole
judge on what to do with the case before it. The determination of
the case is within its exclusive jurisdiction and competence. A
motion to dismiss the case filed by the fiscal should be addressed
to the Court who has the option to grant or deny the same. It does
not matter if this is done before or after the arraignment of the
accused or that the motion was filed after a reinvestigation or upon
instructions of the Secretary of Justice who reviewed the records of
the investigation.

Verily, it bears reiterating that the trial court is not bound to

3
Records, pp. 218-235.
4
L-53373, June 30, 1987.
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adopt the resolution of the Secretary of Justice, since it is mandated

to independently evaluate or assess the merits of the case and it may
either agree or disagree with the recommendation of the Secretary of
Justice. Reliance on the resolution of the Secretary of Justice alone
would be an abdication of the trial courts duty and jurisdiction to
determine a prima facie case.

This was precisely what the MeTc did when it granted

appellants' motion to dismiss, and it correctly did so. The MeTc
made an independent assessment of the merits of the case based on
the affidavits and counter-affidavits, documents, or evidence
appended to the Information. This assessment should be embodied in
the written order disposing of the motion to dismiss or the motion to
withdraw the information.5

A reading of the Resolution of the MeTC dated August 1, 2011 6

shows that its assessment of the merits of the case was clearly
embodied therein.

Certainly, no abuse of discretion was committed by the MeTC

when it issued the aforesaid resolution. Judge Eliza B. Yu did not
commit a patent, gross and prejudicial error of law or fact that would
amount to a grave abuse of discretion or lack of jurisdiction. Neither
did she capriciously disregard a settled law and jurisprudence.

We agree with the MeTC that the dismissal of the case is

warranted because there is no probable cause.

We went over the records of the case and found that there is
indeed absolute lack of evidence to support the presence of probable
cause for grave coercion.

The elements of grave coercion are as follows - 1) that a person

is prevented by another from doing something not prohibited by law,
or compelled to do something against his will, be it right or wrong; 2)
that the prevention or compulsion is effected by violence, threats, or
5
Cerezo vs. People,G.R. No. 185230, June 1, 2011.
6
Records, pp. 57-79.
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intimidation; and 3) that the person who restrains the will and liberty
of another has no right to do so, or in other words, that the restraint is
not made under authority of law or in the exercise of any lawful right. 7

The foregoing elements are not present in the case at bar.

It is not disputed that appellee purchased an ordinary economy

seat, but instead of taking his assigned seat number, he occupied a
choice economy seat, with bigger leg room, without paying its
additional charges. His act of refusing to transfer, when asked to do
so, triggered the events that followed. His continued disobedience,
not only from the request of the attendants but of the Captain himself,
caused trouble and flight delay. No one was spared from his arrogant
attitude. He refused to heed even the request of the Airport Police
Department and the Philippine National Police for him to disembark.
It was only after the other passengers started shouting did he obey.
While it is true that the appellee was prevented from boarding flight
PR 306 because of the disembarkation order of appellant Captain,
the second and third elements are missing. We find that violence,
threat or intimidation were not committed by the appellants and
appellant Captain had every right to ask appellee to leave aircraft.

We agree with the MeTC that -

First, the complaint-affidavit is unsubstantiated by any direct

evidence. It consisted of mere allegations of private complainant
Chan Suy Tay. xxx
Second, the complaint-affidavit did not specify who commit
the alleged acts of grave coercion as stated in the information as
none of the herein accused were ever identified and named therein.
xxx
Third, all the elements of Grave Coercion under Article 286 of
the Revised Penal Code are not established xxx. There was
reasonable cause to believe that it was complainant who caused
disturbance inside the aircraft. He took a different seat from his
boarding pass. In doing this, he violated the PAL's CESS policy.
xxx He who is the cause of the cause is the cause of the evil
caused applies to the herein complainant as to why he was refused

7
Navarra vs. Office of the Ombudsman, G.R. No. 176291, December 4, 2009.
CA-G.R. SP NO. 128139
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to be boarded by PAL. His presence in the aircraft, causing a public

disturbance and delaying the flight, is inimical to the interest of both
the other passengers and the plane. Therefore, it was justified that
he be off loaded which he did not protest at all. xxx His complaint
and the affidavit of his witnesses did not state the attendance of
force, violence or intimidation by herein accused to make them
liable for grave coercion. They failed to adduce evidence that said
complainant was prevented by all the accused from doing
something not prohibited by law or was compelled to do something
against his will, be it right or wrong. Neither is there evidence that
all the accused restrained the will and liberty of complainant. The
alleged acts of the unidentified PAL steward, stewardess and pilot
are justified and proper under PAL's Choice Economy Seat
Surcharge (CESS) policy duly approved by Auronautics Board and
PAL's Operations Manual. xxx
Lastly, complainant alleged that he is bound for Hong Kong
on PAL Flight PR 300 on April 1, 2010 because he will attend
important business meeting and to close and sign two (2) contracts
in the amount of Ten Million Dollars ($10,000,000.00) and Fifteen
Million Dollars ($15,000,000.00), yet this Court observes that he
bought the economy class ticket. Common observation and
experience dictate that a big shot businessman who will sign Fifteen
Million Dollars ($15,000,000.00) contracts will board either a
business or first class plane accommodation, and not go to an
economy class then take a choice Economy Seat without prior
permission, much more without payment and when asked for
transfer of seat with alternative to pay, will argue with the steward
and demand the document authorizing additional charges. This
casts doubt as to the credibility of the complainant. There is no
standard by which the weight of conflicting evidence can be
ascertained. We have to test the truth of human testimony to our
knowledge, observation, and experience.

We would like to stress that the purpose of the mandate of the

judge to first determine probable cause is to insulate from the very
start those falsely charged with crimes from the tribulations,
expenses and anxiety of a public trial.8

All told, the dismissal of the information is clearly warranted. No

grave abuse of discretion was committed by the MeTC and the trial
court erred in granting the petition for certiorari.

8
Santos vs. Orda, Jr., G.R. No. 189402, May 6, 2010.
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WHERFORE, the assailed Orders dated March 12, 2012 and

June 14, 2012 are set aside and the Resolution dated August 1, 2011
of the Metropolitan Trial Court is REINSTATED.

SO ORDERED.

DANTON Q. BUESER
Associate Justice

WE CONCUR:

AMELITA G. TOLENTINO RAMON R. GARCIA

Associate Justice Associate Justice

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, it is

hereby certified that the conclusions in the above decision were
reached in consultation before the case was assigned to the
writer of the opinion of the Court.

AMELITA G. TOLENTINO
Associate Justice
Chairperson, Fourth Division