Professional Documents
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IN suppletorily.
SPECIAL PENAL LAWS
However, when the penalties under
By the special law are different from and are
DEAN GEMY LITO L. FESTIN without reference or relation to those under
PUP COLLEGE OF LAW
the Revised Penal Code, there can be no
_____________________________________________________
suppletory effect of the rules, for the
1.00 WHAT IS A SPECIAL PENAL LAW? application of penalties under the Code or by
other relevant statutory provisions are
It is a penal law which punishes acts based on or applicable only to said rules for
not defined and penalized by the Penal felonies under the Code. People vs. Simon, 234
Code. U.S. vs. Serapio, 23 Phil. 584 SCRA 576
Illustrative cases
1.00 WHAT ARE THE PURPOSES OF
PROBATION? (SEC.2) 1. BAR Q.[2010] Matt was found guilty
of drug trafficking while his younger
[BAR Q.1986, 1989] brother Jeff was found guilty of
possession of equipment, instrument,
The purposes of probation are as
follows: apparatus and other paraphernalia for
dangerous drugs under Section 12 of
(a) to promote the correction and Republic Act No. 9165. Matt filed a
rehabilitation of an offender by providing petition for probation. Jeff appealed his
him with individualized treatment; conviction during the pendency of which
he also filed a petition for probation. The
b) to provide an opportunity for the brothers’ counsel argued that they being
reformation of a penitent offender which
first time offenders, their petitions for
might be less probable if he were to serve a
prison sentence; and probation should be granted. How would
you resolve the brothers’ petitions for
(c) to prevent the commission of probation?
offenses.
Suggested Answer: Both petitions
1.01 WHEN MUST THE APPLICATION FOR should be denied. Any person found guilty of
PROBATION BE FILED? drug trafficking is disqualified to avail of the
An application for probation must benefits of probation. Hence, Matt petition
be made within the period for perfecting an should be dismissed. Insofar as Jeff is
appeal. Sable vs. People 584 SCRA 619, April 7, concerned, his act of appealing his conviction
2009 disqualifies him to avail of probation.
Probation law expressly states that no
1.02 IF THE CONVICT HAD ALREADY application for probation shall be
PERFECTED AN APPEAL, CAN AN entertained or granted if the defendant has
APPLICATION FOR PROBATION
3
perfected an appeal from the judgment of imposed the indeterminate penalty of
conviction. imprisonment of 3 years, 2 months and 1
day as minimum and six years as
2. BAR Q.[2001] A, a subdivision maximum, both a prision correctional
developer, was convicted by the RTC of and was ordered to indemnify the
Makati for failure to issue the offended party in the amount of
subdivision title to a lot buyer despite P3,000.00. He filed an application for
full payment of the lot, and sentenced to probation upon the promulgation of the
suffer one year imprisonment. A judgment. What is the legal effect of his
appealed the decision of the RTC to the application for probation on the
Court of Appeals but his appeal was judgment of conviction? Does said
dismissed. May A still apply for application interrupt the running of the
probation? Explain. period of appeal?
Suggested Answer: No, A may no Suggested Answer: The legal effect of
apply for probation. The appeal that he filed Johnny’s application for probation effectively
from the judgment of conviction disqualifies waives his right to appeal. Judgment of
him to avail of probation. Probation law conviction had become final and executory
provides that no application for probation upon filing of the said application. The remedy
shall be entertained or granted if the accused of appeal is unavailing.
has perfected an appeal from the judgment of
conviction. 1.05 IS A WAIVER OF THE RIGHT TO
APPEAL FROM A JUDGMENT OF
1.03 WHAT IS THEREFORE THE CONVICTION LIKEWISE A WAIVER
IMPLICATION ON THE ON THE CIVIL LIABILITY EX
APPLICATION FOR PROBATION IF DELICTO?
AN APPEAL IS ALREADY
PERFECTED? No. In an appeal from a judgment of
By perfecting their appeal, conviction, the criminal liability and the civil
petitioners ipso facto relinquished the liability ex delicto should be considered
alternative remedy of availing of the independently, each with its own
Probation Law, the purpose of which is corresponding effects.
simply to prevent speculation or
In People vs. Efren Salvan Y Presenes,
opportunism on the part of an accused who, G.R. No. 153845 September 11, 2003, the
although already eligible, does not at once Court reiterated that the law that bars an
apply for probation, but did so only after appeal of the judgment of conviction, as well
failing in his appeal. Lagrosa vs People, 405 as its corresponding criminal liability, should
SCRA 357 not bar an appeal of the civil aspect of the
same judgment.
1.04 ON THE OTHER HAND, WHAT IS THE
IMPLICATION ON THE RIGHT TO 1.06 MAY PROBATION BE GRANTED EVEN
APPEAL IF THE APPLICATION FOR IF THE SENTENCE IMPOSES A FINE
PROBATION WAS PREVIOUSLY ONLY?
FILED ?
Yes, Section 4 of the same law states:
Section 4 of P.D. 968 as amended
“Probation may be granted whether the
expressly states:
sentence imposes a term of imprisonment
“The filing of the application for or a fine only.”
probation shall be deemed a waiver of the
right to appeal.” 1.07 IS AN ORDER GRANTING OR
DENYING PROBATION
Illustrative case
APPEALABLE? BAR Q.[2002]
BAR Q.[1992] Johnny Gitara was
convicted of the crime of estafa by the
Regional Trial Court of Manila. He was
4
1.08 HOW DOES THE PREVAILING Drugs Act Of 2002)
JURISPRUDENCE TREAT APPEAL
AND PROBATION AS REMEDIES? 1.11 ILLUSTRATION OF THE
DISQUALIFICATIONS OF
Prevailing jurisprudence treats PROBATION LAW.
appeal and probation as mutually exclusive
remedies because the law is unmistakable (1) Sentenced To Serve A Maximum
about it and, therefore petitioner cannot Term Of Imprisonment Of More Than
avail herself of both. Six Years.
(4) Who Have Been Once On Probation 1. One exception is provided under
Under The Provisions Of This Decree. Section 11 of RA 9265. It provides that the
accused first-time offender may avail of
suspended sentence subject to certain
(5) Who Are Already Serving Sentence At
conditions. If there is violation of any of
The Time The Substantive Provisions Of
the conditions, the court shall pronounce
This Decree Became Applicable.”
judgment of conviction and he/she shall
serve sentence as any other convicted
In addition: person. The court, however, may place
the accused under probation or
(6) Who Has Perfected An Appeal From community service in lieu of
The Judgment Of Conviction. (Sec.4) imprisonment.
The Crimes against National (3) Who Have Previously Been Convicted
Security are as follows: By Final Judgment Of An Offense Punished
By Imprisonment Of Not Less Than One
a. Treason Month And One Day And/Or A Fine Of Not
Less Than Two Hundred Pesos.
b. Conspiracy and Proposal to
Commit Treason
Illustrative case
c. Misprision of Treason BAR Q.[2004] PX was convicted and
sentenced to imprisonment of thirty days
d. Espionage
and a fine of one hundred pesos.
e. Terrorism and Conspiracy to Previously, PX was convicted of another
Commit Terrorism under R.A. 9372 crime for which the penalty imposed on
him was thirty days only. Is PX entitled to
The following are classified as Crimes probation?
against Public Order:
Suggested Answer: Yes, the
a. Rebellion, Coup d’ etat, Sedition penalty imposed upon him does not exceed 6
and Disloyalty years. His previous conviction for another
b. Crimes against Legislative Bodies crime with a penalty of thirty days
and Similar Bodies, Violation Of imprisonment or not exceeding one (1) month
Pariliamentary Immunity does not disqualify him from applying for
probation.
c. Illegal Assemblies and
Associations (4) Who Have Been Once On Probation
Under The Provisions Of This Decree.
d. Assault Upon, and Resistance and
Disobedience to Persons In Authority (5) Who Are Already Serving Sentence At
and Their Agents The Time The Substantive Provisions Of
This Decree Became Applicable Pursuant
e. Public Disorders
To Section 33 Hereof.
f. Commission of Another Crime (6) Who Has Perfected An Appeal From
During Service of Penalty Imposed
The Judgment Of Conviction (Sec.4,
for Another Previous Offense
Probation Law. (*See previous discussion)
BAR Q. [2012] Under which of the
Probation essentially rejects appeals
following circumstances is probation not
and encourages an otherwise eligible convict
applicable?
to immediately admit his liability and save
a. Probation is not applicable when the the state the time, effort and expenses to
accused is sentenced to serve a maximum of jettison an appeal. Sable vs. People 584 SCRA
six (6) years. 619, April 7, 2009
7
(7) Any Person Convicted Of Drug After the period of probation and
Trafficking or Pushing Regardless of the upon consideration of the report and
Penalty Imposed By The Court. (Sec. 24 of recommendation of the probation officer, the
court may order the final discharge of the
R.A. 9165, The Comprehensive Dangerous
probationer upon finding that he has fulfilled
Drugs Act Of 2002). the terms and conditions of his probation
and thereupon the case is deemed
The Supreme Court had the occasion
terminated.
to explain this disqualification in Padua vs.
People, 559 SCRA 519, July 23, 2008, where it 1.15 WHAT IS THE CONSEQUENCE OF A
states that under Section 24 of Rep. Act No. FINAL DISCHARGE OF THE
9165, any person convicted of drug PROBATIONER? (Sec.16).
trafficking cannot avail of the privilege of
probation. In this case, the convict was The final discharge of the
charged and convicted for violation of probationer shall operate to restore to him
all civil rights lost or suspend as a result of
Section 5, Article II of Rep. Act No. 9165 for
his conviction and to fully discharge his
selling dangerous drugs. It is clear under liability for any fine imposed as to the offense
Section 24 of Rep. Act No. 9165 that any for which probation was granted.
person convicted of drug trafficking cannot
avail of the privilege of probation. 1.16 HOW IS PROBATION LAW
CONSTRUED?
1.12 WHAT IS THE PERIOD OF
PROBATION IF- (SEC.14) It is well-settled that the probation
law is not a penal statute; and therefore, the
a. the convict is sentenced to a term of principle of liberal interpretation is
imprisonment of not more than one year? inapplicable. And when the meaning is
clearly discernible from the language of the
The period of probation shall not statute, there is no room for construction or
exceed two years. interpretation. People vs. Alejandra Pablo,
G.R. No. 12510: August 3, 2000
BAR Q. [2012]The period of probation of
the offender sentenced to a term of one 1.17 IS A PROBATIONER DISQUALIFIED
(1) year shall not exceed FROM RUNNING FOR A PUBLIC
OFFICE DURING THE PERIOD OF
a. two (2) years; HIS PROBATION?
b. six (6) years;
c. one (1) year; No. In the case of Moren vs. COMELEC
d.three (3) years; and MEJES, G.R. 168550, August 10, 2006, the
Supreme Court emphasized that during the
b. the convict is sentenced to a term of period of probation, the probationer is not
imprisonment of more than one year? disqualified from running for a public office
because the accessory penalty of suspension
In all other cases, said period shall from public office is put on hold for the
not exceed six years. duration of the probation.
1.13 WHAT IS THE CONSEQUENCE IF THE The Court went on to state the case of
PROBATIONER VIOLATES ANY OF Baclayo vs. Mutia, 129 SCRA 148, where it
THE CONDITIONS OF PROBATION? ruled that an order placing defendant on
(SEC. 15) probation is not a sentence but is rather in
effect a suspension of imposition of sentence.
The court may arrest the
probationer, hold an informal summary The grant of probation to petitioner
hearing and may revoke his probation in suspended the imposition of the principal
which case, he has to serve the sentence penalty of imprisonment, as well as the
originally imposed. accessory penalties of suspension from
public office and from the right to follow the
profession or calling and that of perpetual
1.14 WHEN IS PROBATION DEEMED
TERMINATED? (Sec.16).
8
special disqualification from the right of and excessive jurisdiction of personal liberty
suffrage. and economic usefulness;
No. The period within which a person Yes, where the special law adopted
is under probation cannot be equated with penalties from the Revised Penal Code, the
service of sentence adjudged. Indeterminate Sentence Law will apply just
as it would in felonies.
Section 4 of the Probation Law
specifically provides that in the grant of The Supreme Court in Sanchez vs.
probation, the probationer does not serve People 588 SCRA 747, June 5, 2009, stressed
the penalty imposed upon him by the court that although Republic Act No. 7610 is a
but is merely required to comply with all the special law, the rules in the Revised Penal
conditions prescribed by the probation
Code for graduating penalties by degrees or
order. Moren vs. Comelec and Mejes, G.R.
168550, August 10, 2006 determining the proper period should be
applied.
9
1. Offenses punishable by death b. Query: May the privileged mitigating
or life imprisonment. circumstance of minority be appreciated in
fixing the penalty that should be imposed
2. Those convicted of treason, even if the penalty imposed is originally an
conspiracy or proposal to indivisible penalty?
commit treason.
Yes. The ISLAW is applicable because
3. Those convicted of misprision the penalty which has been originally an
of treason, rebellion, sedition indivisible penalty (reclusion perpetua to
death), where ISLAW is inapplicable, became
or espionage.
a divisible penalty (reclusion temporal) by
virtue of the presence of the privileged
4. Those convicted of piracy.
mitigating circumstance of minority. People
5. Habitual delinquents. vs. Allen Udtojan Mantalaba, G.R. No. 186227:
July 20, 2011
6. Those who escaped from
confinement or those who 2. Those Convicted of Treason,
evaded sentence. Conspiracy or Proposal to Commit
Treason.
7. Those granted with
conditional pardon and who a. TREASON
violated the terms of the b. CONSPIRACY TO COMMIT
same. TREASON.
a. May a person punished with reclusion b. Yes. The Indeterminate Sentence Law is
perpetua be entitled to the benefits of applicable to AA because there is no
ISLAW? showing that he is a habitual delinquent.
10
Who is a Habitual maximum exceeds one year. People vs. Lapis,
Delinquent? 391 SCRA 131
He is a person who within a period 1.04 WHAT ARE THE REASONS WHY THE
of ten (10) years from the date of his release MAXIMUM AND THE MINIMUM
or last conviction of the crimes of serious, TERM OF THE INDETERMINATE
less serious physical injuries, robbery, theft, SENTENCE HAVE TO BE FIXED BY
estafa or falsification, he is found guilty of THE COURT?
any of said crimes a third time or oftener
(Article 62 of the Revised Penal Code as The maximum and minimum term of
amended). the sentence have to be fixed because of the
following reasons:
Illustrative case
1) Whenever any prisoner shall have
4. Those Who Escaped From served the minimum penalty imposed on
Confinement or Those Who Evaded him, and it shall appear to the Board of
Sentence. Indeterminate Sentence that such prisoner is
fitted by his training for release that there is
[BAR Q.] A convict serving sentence for a reasonable probability that such prisoner
robbery escaped from the penitentiary will live and remain at liberty without
and killed a rival gang member. Found violating the law, and that such release will
guilty of homicide, he was given a straight not be incompatible with the welfare of
prison term. He moved for society, said Board may authorize the release
reconsideration, contending that not of such prisoner on parole, upon such terms
being a habitual delinquent, he was and conditions as may be presented by the
entitled to an indeterminate sentence. Board;
Decide with reasons.
2) Whenever any prisoner released
Suggested Answer: Motion for on parole shall, during the period of
reconsideration is denied. While it may true surveillance, violate any of the conditions of
that A is not be a habitual delinquent, he his parole, the Board of Indeterminate
however, escaped from prison while serving Sentence may issue an order for his re-
sentence. The Indeterminate Sentence Law arrest. In such case the prisoner so re-
provides that it shall not apply to persons who arrested shall serve the remaining
escaped from confinement or evaded his unexpired portion of the maximum portion
sentence. of the maximum sentence for which he was
5. Those Whose Maximum Period of originally committed to prison, unless the
Imprisonment Does Not Exceed One Year. Board of indeterminate Sentence shall, in its
discretion, grant a new parole to the said
a. Can an indeterminate sentence be prisoner.
imposed if the maximum term of
imprisonment is less than 1 year? 3) Even if a prisoner has already
served the minimum, but he is not fitted for
The Indeterminate Sentence Law release on parole, he shall continue to serve
does not apply if the maximum term of imprisonment until the end of the maximum.
imprisonment does not exceed one year if
the trial court opts to impose penalty of 4) The need for specifying the
imprisonment less than one year, it should minimum and maximum periods of the
not impose indeterminate penalty but indeterminate sentence is to prevent the
straight penalty of one year or less instead. unnecessary and excessive deprivation of
liberty and to enhance the economic
An indeterminate sentence usefulness of the accused, since he may be
may be imposed if the minimum of the exempted from serving the entire sentence,
penalty is one year or less, and the depending upon his behavior and his
11
physical, mental, and moral record. Batistis TERM OF THE INDETERMINATE
vs. People, 608 SCRA 335, December 16, 2009 SENTENCE UNDER A SPECIAL LAW.
12
IMPOSITION OF PENALTY INVOLVING 3.01 CITE THE RULE IN ARRIVING AT THE
VIOLATION OF A SPECIAL LAW. MAXIMUM TERM OF THE
INDETERMINATE SENTENCE
[BAR Q:]Andres is charged with an UNDER THE REVISED PENAL CODE.
offense defined by a special law. The
penalty prescribed for the offense is To Get The Maximum Term:
imprisonment of not less than five (5)
years but not more than ten (10) years. “That which, in view of the
Upon arraignment, he entered the plea of attending circumstances, could be
guilty. In the imposition of the proper properly imposed under the rules of
penalty, should the Indeterminate the said code”. (Sec.1, ISLAW)
Sentence Law be applied? If you were the The maximum term of the
judge trying the case, what penalty would indeterminate penalty, according to the
you impose on Andres? Indeterminate Sentence Law, is “that which,
Suggested Answer: Yes, the in view of the attending circumstances, could
Indeterminate Sentence Law should be be properly imposed under the Rules of the
applied. In a special law, the indeterminate said Code. Francisco, Jr. vs. People, 579 SCRA
sentence shall consist of a maximum term 608, February 18, 2009
which shall not exceed the maximum fixed by 3.02 ARE THE RULES OF OFFSETTING
the special law and a minimum term which THE MODIFYING CIRCUMSTANCES
shall not be less than the minimum term APPLICABLE IN DETERMINING
prescribed by the same. THE MAXIMUM TERM OF THE
INDETERMINATE SENTENCE?
If I were the judge, I would impose a penalty of
imprisonment consisting of any duration not The rules of offsetting the modifying
less than 5 years as minimum term of the circumstances are applicable. The mitigating
sentence and any duration not more than 10 or aggravating circumstance is to be
years as maximum term of the sentence. considered in the imposition of the
maximum term of the indeterminate
The plea of guilty as a mitigating sentence. As ruled in Jose vs. People, 436 SCRA
circumstance cannot be appreciated because 294, the modifying circumstances are
the law violated is a special law. considered in the imposition of the
maximum term of the indeterminate
C. RULES INVOLVING CRIMES PUNISHED
sentence.
BY THE REVISED PENAL CODE.
Article 64 of the Revised Penal Code
3.00 IN THE IMPOSITION OF SENTENCE
governs the rules for the application of
INVOLVING VIOLATION OF THE
penalties which contain three periods, to
REVISED PENAL CODE, WHAT DOES
wit:
SECTION 1 OF THE INDETERMINATE
SENTENCE LAW PROVIDE?
“1. When there are neither aggravating
Section 1 expressly nor mitigating circumstances, they shall
provides,” Hereafter, in imposing a prison impose the penalty prescribed by law in its
sentence for an offense punished by the medium period.
Revised Penal Code, or its amendments, the
court shall sentence the accused to an 2. When only a mitigating circumstance is
indeterminate sentence the maximum term present in the commission of the act, they
of which shall be that which, in view of the shall impose the penalty in its maximum
attending circumstances, could be properly period.
imposed under the rules of the said Code, and
the minimum which shall be within the range 3. When only an aggravating
of the penalty next lower to that prescribed by circumstance is present in the commission
the Code for the offense.”
of the act, they shall impose the penalty in
its maximum period.
13
4. When both mitigating and aggravating - The modifying circumstances are
circumstances are present, the court shall considered only in the imposition of the
reasonably offset those of one class maximum term of the indeterminate
against the other according to their sentence. Jarillo vs. People 601 SCRA
236, September 29, 2009
relative weight.
Illustrative Case
5. When there are two or more mitigating
circumstances and no aggravating
a. BAR Q. [2009] In a conviction for
circumstances are present, the court
homicide, the trial court appreciated
shall impose the penalty next lower to two (2) mitigating circumstances and
that prescribed by law, in the period that one (1) aggravating circumstance.
it may deem applicable, according to the Homicide under Article 249 of the
number and nature of such Revised Penal Code is punishable by
circumstances.’ reclusion temporal, an imprisonment
term of twelve (12) years and one (1)
3.03 CITE THE RULE IN ARRIVING AT THE day to twenty (20) years. Applying the
MINIMUM TERM OF THE Indeterminate Sentence Law,
determine the appropriate penalty to
INDETERMINATE SENTENCE
be imposed. Explain.
UNDER THE REVISED PENAL
CODE. Suggested Answer: In order to
obtain the maximum term of the
The law provides that the indeterminate sentence, the rule of offsetting
minimum should be: is applicable in view of the attending
circumstances. Since there are two (2)
“…within the range of the penalty next mitigating circumstances as against one (1)
lower to that prescribed by the code (rpc) aggravating circumstance, the period shall be
for the offense…” (Sec. 1, ISLAW) set in its minimum. Hence, the maximum term
of the indeterminate sentence is reclusion
The Indeterminate Sentence Law temporal in its minimum period. The
leaves it entirely within the sound discretion of minimum which shall be within the range of
the court to determine the minimum penalty, the penalty next lower to that prescribed by
as long as it is anywhere within the range of the Code for the offense. Since the penalty next
lower in reclusion temporal is prision mayor,
the penalty next lower without any reference
the minimum term of the indeterminate
to the periods into which it might be sentence therefore, is prision mayor, the
subdivided. People vs.Jarillo, 601 SCRA 236, period of which is upon the discretion of the
September 29, 2009 court.
b) The proper penalty is prision HELD: It is basic law that the application of
correccional in its minimum period as the the Indeterminate Sentence Law is
mandatory where imprisonment exceeds
maximum term of the indeterminate
one (1) year.
sentence and arresto mayor as its
minimum term the period of which is to 2. ROSANA ASIATICO y STA. MARIA vs.
be fixed upon the court’s discretion. PEOPLE OF THE PHILIPPINES
G.R. No. 195005: September 12, 2011
c) The proper penalty is prision
correccional as the maximum term of the FACTS: Rosana Asiatico was convicted of
indeterminate sentence the period of illegal possession of dangerous drugs
which is to be fixed upon the court’s penalized under Section 11, Article II of (RA)
discretion and arresto mayor in its 9165 or the Comprehensive Dangerous
Drugs Act of 2002 and sentenced to suffer of
minimum period as its minimum term.
imprisonment of twelve years and one day.
d) The proper penalty is arresto mayor only.
ISSUE: Whether or not the sentence imposed
The Indeterminate Sentence Law will not
is proper.
apply.
HELD: The courts a quo erred in imposing a
Note: The penalty imposed in consummated
straight penalty of "imprisonment of twelve
homicide is reclusion temporal. Since the (12) years and one day." Sec. 1 of the ISL
accused is convicted only of frustrated mandates that, in case of a special law, the
homicide, the penalty will be reduced by accused shall be sentenced "to an
one degree, which is prision mayor. The indeterminate sentence, the maximum term
accused who is a minor, is entitled to a of which shall not exceed the maximum fixed
privileged mitigating circumstance of one by said law and the minimum shall not be
less than the minimum term prescribed by
degree lower since he acted with
the same."
15
ADDENDUM:
The law punishes not only public
1. Parole; Section 3 of Republic Act No. officers who commit prohibited acts
9346 provides that persons convicted of enumerated under Section 3 but also those
offenses punished with reclusion perpetua, who induce or cause the public official to
or whose sentences will be reduced to commit those offenses. Santillano vs. People,
reclusion perpetua, shall not be eligible for March 03, 2010
parole under Act No. 4103, otherwise
known as the Indeterminate Sentence Law,
as amended. (People of the Philippines vs. 1.02 WHO ARE DEEMED INCLUDED AS
Vicente Candellada, 701 SCRA 19, G.R. No. PUBLIC OFFICER?
189293, July 10, 2013, Leonardo-De Castro, J.)
A public officer includes elective and
2. Effect of suspension of death penalty. appointive officials and employees,
Under Article 266-B of the Revised permanent or temporary, whether in the
Penal Code, as amended, the imposable classified or unclassified or exempt service
penalty for qualified rape is death. With the receiving compensation, even nominal, from
effectivity, however, of Republic Act No. the government; Under the Anti-Graft Law,
9346, entitled, “An Act Prohibiting the the nature of one's appointment, and
Imposition of Death Penalty in the
whether the compensation one receives
Philippines,” the imposition of the supreme
penalty of death has been prohibited. from the government is only nominal, is
Pursuant to Section 241 thereof, the penalty immaterial because the person so elected or
to be meted out to appellant shall be appointed is still considered a public officer.
reclusion perpetua. (People vs. Tabayan,
G.R. No. 190620, June 18, 2014.Perez, J.) Thus, in Javier v. Sandiganbayan, First
Division, 599 SCRA 324, September 11, 2009,
where petitioner was appointed by the
President to the Governing Board of the
-oooOOOooo-
NDBD and her term is only for a year, such
does not make her private person exercising
a public function. The fact that she is not
CHAPTER III receiving a monthly salary is also of no
moment. Section 7, R.A. No. 8047 provides
THE ANTI-GRAFT AND CORRUPT
that members of the Governing Board shall
PRACTICES ACT
receive per diem and such allowances as may
Republic Act No. 3019 be authorized for every meeting actually
attended and subject to pertinent laws, rules
[BAR Q. 2014, 2012, 2011, 2010, 2009, and regulations. The Supreme Court held
2003, 2000, 1999, 1997, 1991, that the nature of one's appointment, and
1990, 1988, 1985] whether the compensation one receives
___________________________________________________
from the government is only nominal, is
immaterial because the person so elected or
1.00 HOW MUST THE LAW BE appointed is still considered a public officer.
CONSTRUED?
1.03 WHO MAY BE LIABLE UNDER
Every reasonable intendment will be SECTION 3?
made in support of the presumption of
official acts in case of doubt as to an officer’s a. The law punishes not only public
act being lawful or unlawful, construction officers who commit prohibited acts
should be in favor of its lawfulness. Bustillo, enumerated under Sec. 3, but also
Sumilhig, Jr., and Billedo, Jr., vs. People, May those who induce or cause the public
12, 2010 official to commit those offenses.
This is supported by Sec. 9, which
1.01 WHO MAY BE LIABLE UNDER
SECTION 3 OF R.A. 3019? includes private persons as liable for
violations under Secs. 3, 4, 5, and 6.
16
b. Private persons found acting in for violation of the Anti-Graft Law with
conspiracy with public officers may the Tanodbayan against Cris Vera. Will
be held liable for the applicable the complaint prosper? Discuss with
offenses found in Section 3 of the law. reasons.
People vs.Santillano, 614 SCRA 164,
March 3, 2010 Suggested Answer: No, the
complaint against Cris Vera will not prosper.
His act does not constitute persuading,
1.04 ENUMERATE THE ACTS CONSIDERED inducing or influencing under Sec. 3 (a) of
AS CORRUPT PRACTICES OF PUBLIC Republic Act 3019. To induce, persuade or
OFFICERS UNDER SEC. 3 OF R.A.
influence connotes the giving of a price,
3019.
reward or promise. Cris Vera should have
In addition to acts or omissions of acted in view of a consideration, payment or
public officers already penalized by existing renumeration. “Unsavory comments and
law, the following shall constitute corrupt furious attacks” do not fall under the term “to
practices of any public officer and are hereby induce, persuade or influence”.
declared to be unlawful:
(B) Directly Or Indirectly Requesting Or
(A) Persuading, Inducing Or Influencing Receiving Any Gift, Present, Share,
Another Public Officer To Perform An Act Percentage, Or Benefit, For Himself Or For
Constituting A Violation Of Rules And Any Other Person, In Connection With Any
Regulations Duly Promulgated By Contract Or Transaction Between The
Competent Authority Or An Offense In Government And Any Other Part, Wherein
Connection With The Official Duties Of The Public Officer In His Official Capacity
The Latter, Or Allowing Himself To Be Has To Intervene Under The Law.
Persuaded, Induced, Or Influenced To
Commit Such Violation Or Offense. a. ELEMENTS UNDER SECTION 3 (B) OF
R.A. NO. 3019.
Illustrative case
To be convicted of violation of Section
BAR Q.[1985] Cris Vera, an influential 3(b) of R.A. No. 3019, the prosecution has the
member of the Sangguniang Panlunsod of burden of proving the following elements:
Butuan City and a well-known radio
commentator of the said place, addressed 1) the offender is a public officer;
a written communication to Director Jose
2) who requested or received a gift,
of Butuan City LTO, asking for the a present, a share, a percentage,
issuance of a temporary permit for a or benefit;
special trip to Ozamis City of a TPU
jeepney belonging to Vera's relative 3) on behalf of the offender or any
which got involved in a vehicular other person;
collision with a private car in the latter's
4) in connection with a contract or
place. The purpose of the said request is
transaction with the
to make it appear that the trip although government;
not within the authorized route of the
TPU jeepney's certificate of convenience, 5) in which the public officer, in an
was nevertheless authorized so as to official capacity under the law,
enable the owner to recover on the has the right to intervene.
Cadiao-Palacios vs. People, 582
insurance policy.
SCRA 713, March 31, 2009
Director Jose refused, fearful of
b. Explain the 4th element on the
the disastrous consequences.
phrase in connection with “a
Thereafter, he was the subject of contract or transaction”.
unsavory comments and furious attack
by Cris Vera in his program. Director Jose It is very clear from Section 3 (b) of RA
then countered with a criminal complaint No. 3019 that the requesting or receiving of
17
any gift, present, share, percentage, or
benefit must be in connection with “a Each of these modes of committing the
contract or transaction” wherein the public offense is distinct and different from one
officer in his official capacity has to intervene another. Proof of existence of any of them
under the law. What is required is that the suffices to warrant conviction. Cadiao-
transaction involved should at least be Palacios vs. People, 582 SCRA 713, March 31,
described with particularity and proven. 2009
In Garcia vs. Sandiganbayan, G.R. No. d. Must the demand be made by the
155574, November 20, 2006, the Supreme accused from the contractor himself?
Court agreed with petitioner that the
prosecution miserably failed to prove the No. It is irrelevant from whom the
existence of the fourth element. It is very accused demanded her percentage share of
clear from Section 3 (b) of RA No. 3019 that the project cost. As held in Preclaro v.
the requesting or receiving of any gift, Sandiganbayan, 247 SCRA 454 (1995), it is
present, share, percentage, or benefit must irrelevant from whom petitioner demanded
be in connection with “a contract or her percentage share of the project cost –
transaction” wherein the public officer in his whether from the contractor himself or from
official capacity has to intervene under the the latter’s representative. That petitioner
law. made such a demand is all that is required by
Section 3(b) of R.A. No. 3019.
In this case, the prosecution did not
specify what transactions the Company had (E) Causing Any Undue Injury To Any
with the LTO that petitioner intervened in Party, Including The Government, Or
when he allegedly borrowed the vehicles Giving Any Private Party Any
from the Company. It is insufficient that Unwarranted Benefits, Advantage Or
petitioner admitted that Company has Preference In The Discharge Of His
continually transacted with his office. What Official Administrative Or Judicial
is required is that transaction involved Functions Through Manifest Partiality,
should at least be described with particularly Evident Bad Faith Or Gross Inexcusable
and proven. Negligence. This Provision Shall Apply To
Officers And Employees Of Offices Or
To establish existence of the fourth Government Corporations Charged With
element, the relation of the fact requesting The Grant Of Licenses Or Permits Or
and/or receiving transacts with petitioner’s Other Concessions.
LTO Office for the registration of its motor
vehicles, in the reporting of its engine and 1. In order to hold a person liable under
chassis number, as well as the submission of Section 3 (E) of R.A. 3019, what facts
its vehicle dealer’s report, and other similar need to be proved?
transactions, will not suffice. This general
statement failed to show the link between To be found guilty under said
the 56 alleged borrowings with their
provision, the following elements must
corresponding transactions.
concur:
c. What are the 3 distinct acts punished
(1) the offender is a public officer;
under this paragraph?
(2) the act was done in the discharge of the
3 (b) penalizes three distinct acts:
public officer’s official, administrative or
1) demanding or requesting; judicial functions;
19
ill will; it partakes of the nature of fraud. 4. Under the First Mode (4th element),
Sison vs. People, March 09, 2010 explain the meaning of “undue injury
or damage”.
Evident bad faith connotes a
manifest deliberate intent on the part of the
accused to do wrong or to cause damage. It Undue injury caused to any party,
contemplates a breach of sworn duty including the government, under Section 3
through some perverse motive or ill will. (e) of Republic Act No. 3019, could only mean
Reyes vs. People, August 04, 2010 actual injury or damage which must be
established by evidence. People vs.
d. Define Gross Negligence. Sandiganbayan, August 23, 2010
Gross negligence has been so defined as 5. Under the Second Mode, will it
negligence characterized by the want of even suffice that the accused has given
slight care acting or omitting to act in a
unjustified favor or benefit to
situation where there is a duty to act, not
inadvertently but willfully and intentionally another, in the exercise of his
with a conscious indifference to official, administrative or judicial
consequences in so far as other persons may functions?
be affected. It is the omission of that care
which even inattentive and thoughtless men Yes, in order to be found guilty under the
never fail to take on their own property. second mode, it suffices that the accused has
Sison vs. People, March 09, 2010 given unjustified favor or benefit to another,
in the exercise of his official, administrative
Gross inexcusable negligence does not
or judicial functions.
signify mere omission of duties nor plainly
the exercise of less than the standard degree As an example, in Sison vs. People 614
of prudence it refers to negligence
SCRA 670, March 9, 2010, petitioner did just
characterized by the want of even the
slightest case, acting or omitting to act in a that. The fact that he repeatedly failed to
situation where there is a duty to act, not follow the requirements of RA 7160 on
inadvertently but willfully and intentionally, personal canvass proves that unwarranted
with conscious indifference to consequences benefit, advantage or preference was given
in so far as other persons may be affected. to the winning suppliers. These suppliers
Sistoza vs. Desierto, 388 SCRA 307
were awarded the procurement contract
3. Under the 4th element, may an accused without the benefit of a fair system in
be charged under either mode or determining the best possible price for the
both? government. The private suppliers, which
were all personally chosen by respondent,
There are two ways by which Section 3(e) were able to profit from the transactions
of RA 3019 may be violated— without showing proof that their prices were
the most beneficial to the government.
a. the first mode: by causing undue
injury to any party, including the 6. Application of par (3) to public
government, or bidding.
21
price of walis tingting in Las Piñas City which To illustrate, in Teves v. Sandiganbayan,
was used as proof of overpricing 447 SCRA 309 (2004), petitioner was
in Parañaque City. For a charge under convicted under the second mode for having
Section 3 (g) to prosper, the following pecuniary or financial interest in a cockpit
elements must be present: (1) that the which is prohibited under Sec. 89(2) of the
accused is a public officer; (2) that he entered Local Government Code of 1991.
into a contract or transaction on behalf of the
government; and (3) that such contract or View that under Section 3(h) of Republic
transaction is grossly and manifestly Act No. 3019, the element of "financial or
disadvantageous to the government. pecuniary interest" contemplated under the
Second Mode of violating Sec. 3(h) is one
The Supreme Court agrees with prohibited by law, a qualification not present
petitioners that the fact of overpricing is in the First Mode Teves vs. Sandiganbavan,
embedded in the third criminal element of 447 SCRA 309.
Section 3 (g) of R.A. No. 3019. Given the
factual milieu of this case, the subject 3. What are the two (2) modes by which a
contracts would be grossly and manifestly public officer may violate paragraph
disadvantageous to the government if
3(H) of R.A. 3019?
characterized by an overpriced
procurement. However, the gross and
There are two modes by which a public
manifest disadvantage to the government
was not sufficiently shown because the officer who has a direct or indirect financial or
conclusion of overpricing was not also pecuniary interest in any business, contract,
adequately proven. or transaction may violate Section 3(h) of R.A.
3019-
(H) Director Or Indirectly Having
Financing Or Pecuniary Interest In Any 1. The first mode is when the public officer
Business, Contract Or Transaction In intervenes or takes part in his official
Connection With Which He Intervenes Or capacity in connection with his financial
Takes Part In His Official Capacity, Or In
or pecuniary interest in any business,
Which He Is Prohibited By The
Constitution Or By Any Law From Having contract, or transaction.
Any Interest.
2. The second mode is when he is
prohibited from having such an interest
1. THE ESSENTIAL ELEMENTS UNDER
SECTION 3(H) OF R.A NO. 3019 by the Constitution or by law.
22
(Sec. 13) Suggested Answer: The suspension
order does not partake of a penalty and in no
“Section 13 of the law reads: Any public way violative of Brad Kit's constitutional
officer against whom any criminal right to be presumed innocent. Under the law,
prosecution under a valid information
suspension pendente lite applies to all public
under this Act or under the provisions of
the Revised Penal Code on bribery is officials indicted upon a valid information
pending in court, shall be suspended from under RA No. 3019, the purpose is to prevent
office.” said official from hampering or influencing
the normal course of the investigation.
The law further provides that hould
he be convicted by final judgment, he shall 2.03 WHAT IS THE RULE WITH RESPECT
lose all retirement or gratuity benefits TO UNSOLICITED GIFTS OR
under any law, but if he is acquitted, he shall PRESENTS OF SMALL OR
be entitled to reinstatement and to the INSIGNIFICANT VALUE? (SEC.14)
salaries and benefits which he failed to
receive during suspension, unless in the Unsolicited gifts or presents of small or
meantime administrative proceedings have insignificant value offered or given as a mere
been filed against him.” ordinary token of gratitude or friendship
according to local customs or usage, shall be
It is a settled doctrine that R.A. No. exempted from the provisions of this Act.
3019 should be read to protect the State from
fraud by its own officials. Section 13 of R.A. ADDENDUM:
No. 3019 covers two types of offenses; (1)
any offense involving fraud on the 1. Private person may be liable.
government; and (2) any offense involving
public funds or property. It bears to reiterate the settled rule
that private persons, when acting in
Illustrative case conspiracy with public officers, may be
indicted and, if found guilty, held liable for
BAR Q. [2000] A month after the the pertinent offenses under Section 3 (e) of
arraignment of Brad Kit, Commissioner R.A. 3019, in consonance with the avowed
of the Housing and Land Use Regulatory policy of the anti-graft law to repress certain
Board, who was charged with violation of acts of public officers and private persons
Section 3(h) of republic Act 3019. (Anti- alike constituting graft or corrupt practices
act or which may lead thereto. This is the
Graft and Corrupt Practices Act before
controlling doctrine as enunciated by the
the Sandiganbayan, the Office of the Court in previous cases.(Edelbert C. Uyboco
Special Prosecutor filed a Motion to vs. People, G.R. No. 211703, December 10,
Suspend Accused Pendete Lite pursuant 2014, Velasco Jr., J.)
to Section 13 of the Anti-Graft Law. The
Court granted the motion and suspended 2. Good faith of heads of offices in signing
a document.
accused Brad Kit. The court granted the
and suspended accused Brad Kit for a The good faith of heads of offices in
period of 90 days. Accused assailed the signing a document will only be appreciated
constitutional validity of the suspension if they, with trust and confidence, have relied
order on the ground that it partakes of a on their subordinates in whom the duty is
penalty before judgment of conviction is primarily lodged. (Sanchez vs. People, 703
reached and is thus violative of his SCRA 586, G.R. No. 187340, August 14,
2013,Sereno, CJ.)
constitutional right to be presumed
innocent. He also claimed that this 3. Manifest partiality, Evident bad faith
provision of the law on suspension and Gross inexcusable negligence
pendente lite applies only to elective explained.
officials and not to appointed ones like
him. Rule with reasons. In Uriarte vs. People, the Court
explained that Section 3(e) of RA 3019 may
be committed either by dolo, as when the
23
accused acted with evident bad faith or
manifest partiality, or by culpa, as when the
accused committed gross inexcusable CHAPTER IV. THE COMPREHENSIVE
negligence. There is “manifest partiality” DANGEROUS
when there is clear, notorious, or plain DRUGS ACT OF 2002 Republic Act No.
inclination or predilection to favor one side 9165
or person rather than another. “Evident bad
faith” contemplates a state of mind [BAR Q. 2014, 2010, 2009, 2007, 2006,
affirmatively operating with furtive design 2005, 2004, 2002, 2000, 1998, 1996,
or with some motive of self-interest or ill will 1992]
or for ulterior purposes. “Gross inexcusable
negligence” refers to negligence __________________________________________________
characterized by the want of even the
slightest care, acting or omitting to act in a
situation where there is a duty to act, not 1.00 ENUMERATE THE UNLAWFUL ACTS
inadvertently but willfully and intentionally, UNDER THE LAW. (*bar topic)
with conscious indifference to consequences
insofar as other persons may be affected. The unlawful acts are as follows:
(Jovito C. Plameras vs. People of the
Philippines, G.R. No. 187268, September 1. Importation of Dangerous Drugs
4,2013, Perez, J.) and/or Controlled Precursors and
Essential Chemicals (Sec. 4)
4. When can private persons be charged.
Illustrative case
However, private persons may
likewise be charged with violation of Section
BAR Q.[2006]After receiving a reliable
3(g) of RA 3019 if they conspired with the
public officer. (Gregorio Sing Ian, Jr. vs. information that Dante Ong, a notorious
Sandiganbayan (3rd division), The People
drug smuggler, was arriving on PAL
of the Philippines, G.R. Nos.195011-19,
September 30, 2013,Del Castillo, J.) Flight No. PR181, PNP Chief Inspector
Samuel Gamboa formed a group of anti-
5. Contract and transaction explained. drug agents. When Ong arrived at the
airport, the group arrested him and
A transaction, like a contract, is one seized his attache case. Upon inspection
which involves some consideration as in
inside the Immigration holding area, the
credit transactions and this element
(consideration) is absent in the investigation attache case yielded 5 plastic bags of
conducted by the petitioner. In the light of heroin weighing 500 grams. Chief
the foregoing, the Court agrees with the Inspector Gamboa took the attache case
petitioner that it was error for the and boarded him in an unmarked car
Sandiganbayan to have convicted him of driven by P03 Pepito Lorbes. On the way
violating Sec. 3 (b) of R.A. No. 3019. (People to Camp Crame and upon nearing White
vs. Sandiganbayan, G.R. No. 188165/G.R.
Plains corner Edsa, Chief Inspector
No. 189063 December 11, 2013, Bersamin,
J.) Gamboa ordered P03 Lorbes to stop the
car. They brought out the drugs from
Notably, the offense defined under the case in the trunk and got 3 plastic
Section 3 (e) of R.A. No. 3019 may be sacks of heroin. They then told Ong to
committed even if bad faith is not alight from the car. Ong left with the 2
attendant. remaining plastic sacks of heroin. Chief
Inspector Gamboa advised him to keep
Thus, even assuming for the sake of
argument that Coloma did not act in bad faith silent and go home which the latter did.
in rendering his report, his negligence under Unknown to them, an NBI team of agents
the circumstances was not only gross but has been following them and witnessed
also inexcusable. (Coloma vs. the transaction. They arrested Chief
Sandiganbayan, G.R. No. 205561, Inspector Gamboa and P03 Lorbes.
September 24, 2014, Mendoza, J.)
Meanwhile, another NBI team followed
-ooOOOooo-
24
Ong and likewise arrested him. All of operation-- such use of money does not
them were later charged. adversely affect the case against the accused.
There is no requirement that the police must
What are their respective apply fluorescent powder to the buy-bust
criminal liabilities? money to prove the commission of the
Suggested Answer: Chief offense; there is no law or rule of evidence
Inspector Samuel Gamboa and P03 Pepito requiring the use of fluorescent powder or
Lorbes are liable as protector/coddler to the taking of the culprit's fingerprints from
the illegal importation of the dangerous the bag containing the shabu.
drugs into the Philippines. They knew Mr. 3. What is material is the delivery of the
Ong violated the Comprehensive Drugs Act prohibited drug to the buyer which in this
yet, they used their position to facilitate his case, was sufficiently proved by the
escape with a view to prevent his arrest, prosecution through the testimony of the
prosecution and conviction . poseur-buyer and the presentation of the
The police officers are guilty of articles itself before th court. Besides, the
misappropriation and failure to account for money was already marked by the poseur
seized dangerous drugs punished under Sec buyer with his initials CG. Neither is
27 of R.A. 91165. On the other hand, Dante fingerprints a requirement in buy-bust
Ong is guilty of illegal importation of operations. There is no law or rule of
dangerous drugs under Art II Sec. 4, RA 9165. evidence requiring the use of fluorescent
powder or the taking of the culprits
2. Sale, Trading, Administration, fingerprints from the bag containing the
Dispensation, Delivery, Distribution and shabu. People vs. Saidmin Macabalang GR No.
Transportation of Dangerous Drugs 168694; Novemeber 27, 2006
and/or Controlled Precursors and
Essential (Sec. 5) 4. Mission order, court order and
surveillance progress report are not
a. What is a BUY- BUST OPERATION? required in buy-bust operation. People vs.
A buy-bust operation is a form of Ong Co, 245 SCRA 733
entrapment which had repeatedly been 5. There is no fixed procedure for conducting
accepted to be a valid means of arresting buy- bust operations. People vs. Cruda, 212
violators of the Dangerous Drugs Law; In SCRA 125
every prosecution for Illegal sale of
prohibited or regulated drugs, the following 6. In a “buy-bust” operation, the important
elements must be established (1) the aspect of police operatives in their modus
identity of the buyer and seller, the object operandi is not the hearing but seeing the
and the consideration; and (2) the delivery accused selling the prohibited drugs. People
of the thing sold and the payment thereof. vs. Fernandez, 228 SCRA 301
People vs.Suson and Fortich, G.R. No. 152848,
July 12, 2006 c. Is non-coordination with PDEA fatal to
the prosecution’s cause?
b. Principles in Buy-Bust Operation.
Coordination with the Philippine
1. The presentation in evidence of the “buy- Drug Enforcement Agency (PDEA) is not an
bust” money is not indispensable for the indispensable requirement before police
authorities may carry out a buy-bust
conviction of an accused provided that the
operation – a buy-bust operation is not
sale of marijuana is adequately proven by invalidated by mere non-coordination with
the prosecution. People vs. Pascual, 208 SCRA the PDEA. People vs. Roa
393
BAR Q. [2005] Obie Juan is suspected to (1) The apprehending team having initial
have in his possession an unspecified custody and control of the drugs shall,
amount of methamphetamine immediately after seizure and
hydrochloride or “shabu”. An confiscation, physically inventory and
photograph the same in the presence of
entrapment operation was conducted by
the accused or the person/s from whom
police officers, resulting in his arrest such items were confiscated and/or
following the discovery of 100 grams of seized, or his/her representative or
the said dangerous drug in his counsel, a representative from the media
possession. He was subjected to a drug and the Department of Justice (DOJ), and
test and was found positive for the use of any elected public official who shall be
marijuana, another dangerous drug. He required to sign the copies of the inventory
and be given a copy thereof;
was subsequently charged with two
crimes: Violation of Section 11, Article II
(2) Within twenty-four (24) hours upon
of RA 9165 for the possession of “shabu” confiscation/seizure of dangerous drugs,
and violation of Section 15 for the use of plant sources of dangerous drugs,
marijuana. Are the charges proper? controlled precursors and essential
Explain. chemicals, as well as
instruments/paraphernalia and/or
Suggested Answer: The charge of laboratory equipment, the same shall be
possession of shabu under Section 11, Article submitted to the PDEA Forensic
28
Laboratory for a qualitative and over the case. In all instances, the
quantitative examination; representative sample/s shall be kept to a
minimum quantity as determined by the
(3) A certification of the forensic Board;
laboratory examination results, which
shall be done under oath by the forensic (6) The alleged offender or his/her
laboratory examiner, shall be issued representative or counsel shall be allowed
within twenty-four (24) hours after the to personally observe all of the above
receipt of the subject item/s: Provided, proceedings and his/her presence shall
That when the volume of the dangerous not constitute an admission of guilt. In
drugs, plant sources of dangerous drugs, case the said offender or accused refuses
and controlled precursors and essential or fails to appoint a representative after
chemicals does not allow the completion of due notice in writing to the accused or
testing within the time frame, a partial his/her counsel within seventy-two (72)
laboratory examination report shall be hours before the actual burning or
provisionally issued stating therein the destruction of the evidence in question, the
quantities of dangerous drugs still to be Secretary of Justice shall appoint a
examined by the forensic laboratory: member of the public attorney's office to
Provided, however, That a final represent the former;
certification shall be issued on the
completed forensic laboratory (7) After the promulgation and judgment
examination on the same within the next in the criminal case wherein the
twenty-four (24) hours; representative sample/s was presented as
evidence in court, the trial prosecutor
(4) After the filing of the criminal case, the shall inform the Board of the final
Court shall, within seventy-two (72) hours, termination of the case and, in turn, shall
conduct an ocular inspection of the request the court for leave to turn over the
confiscated, seized and/or surrendered said representative sample/s to the PDEA
dangerous drugs, plant sources of for proper disposition and destruction
dangerous drugs, and controlled within twenty-four (24) hours from
precursors and essential chemicals, receipt of the same; and
including the instruments/paraphernalia
and/or laboratory equipment, and (8) Transitory Provision: a) Within
through the PDEA shall within twenty-four twenty-four (24) hours from the effectivity
(24) hours thereafter proceed with the of this Act, dangerous drugs defined
destruction or burning of the same, in the herein which are presently in possession
presence of the accused or the person/s of law enforcement agencies shall, with
from whom such items were confiscated leave of court, be burned or destroyed, in
and/or seized, or his/her representative the presence of representatives of the
or counsel, a representative from the Court, DOJ, Department of Health (DOH)
media and the DOJ, civil society groups and the accused/and or his/her counsel,
and any elected public official. The Board and, b) Pending the organization of the
shall draw up the guidelines on the PDEA, the custody, disposition, and
manner of proper disposition and burning or destruction of
destruction of such item/s which shall be seized/surrendered dangerous drugs
borne by the offender: Provided, That provided under this Section shall be
those item/s of lawful commerce, as implemented by the DOH.”
determined by the Board, shall be
donated, used or recycled for legitimate b. What does “CHAIN OF CUSTODY” mean?
purposes: Provided, further, That a
representative sample, duly weighed and “Chain of Custody” means the duly
recorded is retained; recorded authorized movements and
custody of seized drugs or controlled
(5) The Board shall then issue a sworn chemicals or plant sources of dangerous
certification as to the fact of destruction or drugs or laboratory equipment of each stage,
burning of the subject item/s which, from the time of seizure/confiscation to
together with the representative sample/s receipt in the forensic laboratory to
in the custody of the PDEA, shall be safekeeping to presentation in court for
submitted to the court having jurisdiction destruction. Such record of movements and
custody of seized item shall include the
29
identity and signature of the person who court. People vs. Kamad, G.R. No.
held temporary custody of the seized item, 174198, January 19, 2010
the date and time when such transfer of
custody were made in the course of d. Would non-compliance with the
safekeeping and used in court as evidence, prescribed procedural requirements
and the final disposition. People vs. Ruiz render the seizure void?
Garcia, G.R. No.173480 February 25, 2009
No. Mere lapses in procedures need
c. Is strict compliance with the prescribed
not invalidate a seizure if the integrity and
procedure essential?
evidentiary value of the seized items can be
shown to have been preserved.
Yes. Section 21, paragraph 1,
Article II of R.A. No. 9165 and Section
As held in the case of People vs.
21(a), Article II of the Implementing Rules
and Regulations (IRR) of RA No. 9165 give Alejandro, G.R. No. 176350, August 10, 2011,
us the procedures that the apprehending the Supreme Court pronounced that non-
team should observe in the handling of compliance with the prescribed procedural
seized illegal drugs in order to preserve requirements does not necessarily render
their identity and integrity as evidence. As the seizure and custody of the items void and
indicated by their mandatory terms, strict invalid; the seizure may still be held to be
compliance with the prescribed
valid, provided that (a) there is a
procedure is essential and the prosecution
must show compliance in every case. justifiableground for the non-
People vs. Alejandro, G.R. No. 176350, compliance, and (b) the integrity and
August 10, 2011 evidentiary value of the seized items are
shown to have been properly preserved.
Strict compliance with the
prescribed procedure is required because of Further, in another case, the Court
the illegal drug’s unique characteristic stressed that the failure on the part of the
police officers to take photographs and make
rendering it indistinct, not readily
an inventory of the drugs seized from the
identifiable, and easily open to tampering, appellant was not fatal because the
alteration or substitution either by accident prosecution was able to preserve the
or otherwise. Hence, the rules on the integrity and evidentiary value of the said
measures to be observed during and after the illegal drugs. People vs. Llamado, G.R. No.
seizure, during the custody and transfer of 185278 March 13, 2009
the drugs for examination, and at all times up However, the failure to follow the
to their presentation in court. The Court procedure mandated under R.A. No. 9165
recognized the following links that must be and its IRR must be adequately explained.
established in the chain of custody in a buy- The justifiable ground for non-compliance
bust situation: must be proven as a fact. The court cannot
presume what these grounds are or that they
first, the seizure and marking, if even exist. People vs. De Guzman, G.R. No.
practicable, of the illegal drug 186498, March 26, 2010
recovered from the accused by the
apprehending officer; e. Is the presumption of regular
performance of duty conclusive in chain
second, the turnover of the illegal of custody cases?
drug seized by the apprehending
officer to the investigating officer; No. this presumption is not
conclusive and cannot, by itself, overcome
third, the turnover by the the constitutional presumption of
investigating officer of the illegal innocence. The presumption of regularity,
drug to the forensic chemist for it must be emphasized, obtains only when
laboratory examination; and there is no deviation from the regular
performance of duty.
fourth, the turnover and submission
of the marked illegal drug seized Where the official act in question
from the forensic chemist to the is irregular on its face, no presumption of
30
regularity can arise. In the present case, having initial custody and control of the drug
the procedural lapses by the shall:
apprehending team in the handling of the
seized items – from their failure to mark it immediately after seizure
immediately upon confiscation, to their and confiscation, physically
failure to inventory and photograph it in inventory and photograph
the presence of the accused, or his the [drug] in the presence of
representative or counsel, a the accused or the person/s
representative from the media and the from whom such items were
DOJ, and any elected public official, confiscated and/or seized, or
without offering any justifiable ground – his/her representative or
effectively negated the presumption of counsel, a representative
regularity. People vs. Alejandro, G.R. No. from the media and the
176350, August 10, 2011 Department of Justice (DOJ),
and any elected public official
f. Does the stipulation to the chemist’s who shall be required to sign
receipt of an “allegedly” confiscated the copies of the inventory
specimen which tested positive for shabu and be given a copy thereof.
sufficient?
In this case, no physical inventory
No. The stipulation referred to the was made and no photograph taken nor
chemist’s receipt of an “allegedly” confiscated markings made on the seized articles at the
specimen which tested positive for shabu is crime scene there is no reasonable assurance
not sufficient. There is no certainty that what that no tampering or substitution occurred
was submitted and subjected for chemical between the time the police seized the black
examination was the specimen obtained from bag in P. Ocampo St. in Manila until its
appellant. The failure to establish the contents were tested in the laboratory of the
evidence’s chain of custody is damaging to the PNP R-IV headquarters in Canlubang,
prosecution’s case. People vs. Balagat, G.R. No. Laguna. In net effect, a heavy cloud of doubt
177163, April 24, 2000 hangs over the integrity and necessarily the
evidentiary value of the seized items. People
g. Cite certain important doctrines under vs. Cervantes, G.R. No. 181494, March 17, 2009
the Chain of Custody.
4. It cannot be over-emphasized that
1. The chain of custody requirement pertinent provisions of RA 9165 require that
is essential to ensure that doubts regarding the seized illegal items shall, after their
the identity of the evidence are removed inventory, be photographed in the presence
through the monitoring and tracking of the of the drug dealer, representatives of media,
movements of the seized drugs from the the Department of Justice, or any elected
accused, to the police, to the forensic public official who participated in the
chemist, and finally to the court. People v. operation. The records do not yield an
Sitco, May 14, 2010 indication that this particular requirement
has been complied with.To reiterate, the
2. The duty to prove the guilt of an chain of custody requirement is necessary in
accused is reposed in the State. Law order to remove doubts as to the identity of
enforcers and public officers have the duty to the evidence, by monitoring and tracking
preserve the chain of custody over the seized custody of the seized drugs from the accused,
drugs. This guarantee of the integrity of the until they reach the court. A failure to comply
evidence to be used against an accused goes with the aforequoted Sec. 21 (1) of RA 9165
to the very heart of his fundamental rights. implies a concomitant failure on the part of
People vs .De Guzman, G.R. No. 186498, March the prosecution to establish the identity of
26, 2010 the seized illegal items as part of the corpus
delicti. People v. Sitco, May 14, 2010
3. Given the foregoing perspective, it is
fairly evident that the police operatives 5. As a method of authenticating
trifled with the procedures in the custody of evidence, the chain of custody rule requires
seized prohibited drugs in a buy-bust that the admission of an exhibit be preceded
operation, as embodied in Sec. 21(1), Art. II of by evidence sufficient to support a finding
RA 9165, i.e., the apprehending officer/team that the matter in question is what the
proponent claims it to be. It would include
31
testimony about every link in the chain, from test and was found positive for the use of
the moment the item was picked up to the marijuana, another dangerous drug. He
time it is offered in evidence, in such a way was subsequently charged with two
that every person who touched the exhibit
crimes: Violation of Section 11, Article II
would describe how and from whom it was
received, where it was and what happened to of RA 9165 for the possession of “shabu”
it while in the witness’ possession, the and violation of Section 15 for the use of
condition in which it was received and the marijuana. X X X So as not to be sentenced
condition in which it was delivered to the to death, Obie Juan offers to plead guilty to
next link in the chain. These witnesses would a lesser offense. Can he do so? Why?
then describe the precautions taken to
ensure that there had been no change in the Suggested Answer: No, Obie Juan
condition of the item and no opportunity for cannot plead guilty to a lesser offense since
someone not in the chain to have possession
this is explicitly prohibited under Section 23
of the same. Indeed, it is from the testimony
of every witness who handled the evidence of R.A. 9165. The law provides that any
that a reliable assurance can be derived that person charged under any provision of this
the evidence presented in court and that Act regardless of the imposable penalty shall
seized from the accused are one and the not be allowed to avail of the provisions on
same. People v. De Guzman, March 26, 2010 plea bargaining.
6. The chain of custody requirement 2.02 CAN A PERSON CONVICTED OF DRUG
is essential to ensure that doubts regarding TRAFFICKING OR PUSHING AVAIL OF
the identity of the evidence are removed THE BENEFITS UNDER THE
through the monitoring and tracking of the PROBATION LAW? (SEC. 24)
movements of the seized drugs from the
accused, to the police, to the forensic No, a person convicted of either drug
chemist, and finally to the court. People v.
trafficking or pushing cannot avail of the
Sitco, May 14, 2010 benefits of probation. Under the express
7. The duty to prove the guilt of an provision of Section 24, it provides:
accused is reposed in the State. Law
enforcers and public officers have the duty to “Any person convicted for drug trafficking
preserve the chain of custody over the seized or pushing under this Act, regardless of
drugs. This guarantee of the integrity of the the penalty imposed by the Court, cannot
evidence to be used against an accused goes avail of the privilege granted by the
to the very heart of his fundamental rights. Probation Law or Presidential Decree No.
People vs .De Guzman, G.R. No. 186498, March 968, as amended.”
26, 2010
2.03 CITE THE SIGNIFICANCE IF A
2.01 IS PLEA BARGAINING ALLLOWED POSITIVE FINDING FOR THE USE
UNDER THIS LAW? (SEC. 23) OF DANGEROUS DRUGS IS FOUND
IN THE COMMISSION OF A CRIME.
Any person charged under any provision (SEC. 25)
of this Act regardless of the imposable
penalty shall not be allowed to avail of the It shall constitute as a Qualifying
provision on plea-bargaining. Aggravating Circumstance in the
commission of the crime. Republic Act 9165
Illustrative case expressly reads:
BAR Q. [2005] Obie Juan is suspected to “ x x x a positive finding for the use of
have in his possession an unspecified dangerous drugs shall be a qualifying
amount of methamphetamine aggravating circumstance in the
hydrochloride or “shabu”. An commission of a crime by an offender, and
entrapment operation was conducted by the application of the penalty provided for
in the Revised Penal Code shall be
police officers, resulting in his arrest
applicable.”
following the discovery of 100 grams of
the said dangerous drug in his Illustrative case
possession. He was subjected to a drug
32
BAR Q. [2005] Candido stabbed an MINOR OFFENDERS
innocent bystander who accidentally
bumped him. The innocent bystander 3.00 WHO MAY AVAIL OF SUSPENSION OF
died as a result of the stabbing. Candido SENTENCE?
was arrested and was tested to be
A first-time minor offender who is over 15
positive for the use of shabu at the time
years of age at the time he committed an
he committed the stabbing. offense punished under Sec. 11 but not more
than 18 years at the time judgment of
What should be the proper charge conviction had been rendered may avail of
against Candido? suspension of sentence. According to R.A.
9265:
Suggested Answer: Candido is
guilty of homicide only. The act of stabbing “An accused who is over fifteen (15) years
was not consciously adopted but only of age at the time of the commission of the
accidental and therefore, negates treachery. offense mentioned in Section 11 of this Act,
However, since the crime was committed but not more than eighteen (18) years of
when he was under the influence of age at the time when judgment should
have been promulgated after having been
dangerous drugs, such act becomes a
found guilty of said offense, may be given
qualifying circumstance pursuant to Section the benefits of a suspended sentence.”
25, R.A. 9165.
3.01 WHAT IS THE CONSEQUENCE AFTER
2.04 UNDER THE LAW, THERE ARE ACTS COMPLIANCE WITH CONDITIONS OF
WHERE MERE ATTEMPT OR SUSPENDED SENTENCE BY A FIRST-
CONSPIRACY TO COMMIT THE TIME MINOR OFFENDER?
SAME IS ALREADY PUNISHABLE.
CITE THE UNLAWFUL ACTS.
If the accused first time minor
(SEC.26)
offender under suspended sentence
complies with the applicable rules and
Sec. 26 enumerates the acts where regulations of the Board, including
mere attempt or conspiracy to commit the confinement in a Center, the court, upon a
following unlawful acts are punished. It favorable recommendation of the Board for
states: the final discharge of the accused, shall
discharge the accused and dismiss all
“Any attempt or conspiracy to commit the proceedings.
following unlawful acts shall be penalized:
Upon the dismissal of the
(a) Importation of any dangerous drug proceedings against the accused, the court
and/or controlled precursor and shall enter an order to expunge all official
essential chemical; records, other than the confidential record to
be retained by the DOJ relating to the case.
(b) Sale, trading, administration, Such an order, which shall be kept
dispensation, delivery, distribution confidential, shall restore the accused to
and transportation of any dangerous his/her status prior to the case. He/she shall
drug and/or controlled precursor not be held thereafter to be guilty of perjury
and essential chemical; or of concealment or misrepresentation by
reason of his/her failure to acknowledge the
(c) Maintenance of a den, dive or resort case or recite any fact related thereto in
where any dangerous drug is used in response to any inquiry made of him for any
any form; purpose.
(d) Manufacture of any dangerous drug 3.02 CAN THE PRIVILEGE OF SUSPENDED
and/or controlled precursor and SENTENCE BE AVAILED OF MORE
essential chemical; and THAN ONCE BY A FIRST-TIME
MINOR OFFENDER?
(e) Cultivation or culture of plants which
are sources of dangerous drugs” No. The privilege of suspended
sentence shall be availed of only once by an
33
accused drug dependent who is a first-time vs. Palomares, G.R. No. 200915, February
offender over fifteen (15) years of age at the 12, 2014)
time of the commission of the violation of
Section 15 of this Act but not more than 2. Essential elements of illegal sale.
eighteen (18) years of age at the time when
judgment should have been promulgated. In this case, the prosecution failed to
prove that each and every element that
3.03 WHAT IS THE CONSEQUENCE IF THE constitutes an illegal sale of dangerous drug
ACCUSED FIRST-TIME MINOR was present to convict the accused. Upon
OFFENDER VIOLATES ANY OF THE evaluation of the testimonies of PO1
CONDITIONS OF HIS/HER Familara and PO1 Mendoza, it is apparent
SUSPENDED SENTENCE? that there is an inconsistency on the identity
and number of plastic sachets bought from
The court shall pronounce judgment the accused. In his statement, PO1 Familara
of conviction and he/she shall serve sentence recalled that upon arrival at the place of
as any other convicted person. arrest, PO1 Mendoza told him that he was
able to buy one plastic sachet of shabu from
3.04 CAN THE COURT PLACE THE Guinto. On the other hand, PO1 Mendoza
ACCUSED UNDER PROBATION OR recalled that he was able to buy two plastic
COMMUNITY SERVICE IN LIEU OF sachets instead of one. The pointed
IMPRISONMENT? inconsistency is not a minor one that can be
brushed aside as the discrepancy taints the
Yes, Section 70 allows the court, in very corpus delicti of the crime of illegal sale.
its discretion to place the accused under A vital point of contention, the prosecution’s
probation or imposed community service in evidence places in reasonable doubt the
lieu of imprisonment. identification of the dangerous drug that was
presented in court. (People vs. Guinto, G.R.
No. 198314, September 24, 2014, Perez, J.)
LIMITED APPLICABILITY OF THE
REVISED PENAL CODE
In order to overcome the
presumption of regularity, there must be
4.00 ARE THE PROVISIONS OF THE clear and convincing evidence that the police
REVISED PENAL CODE APPLICABLE TO officers did not properly perform their duties
R.A. 9165? or that they were prompted with ill motive,
none of which exists in this case. (People of
The provisions of the Revised Penal the Philippines vs. Mercidita Resurreccion
Code have limited applicability. The law y Torres, G.R. No. 188310 June 13, 2013,
provides that notwithstanding any law, rule Leonardo-De Castro, J.)
or regulation to the contrary, the provisions
of the Revised Penal Code (Act No. 3814), as The Court has held that prior
amended, shall not apply to the provisions of surveillance is not necessary to render a buy-
this Act, except in the case of minor bust operation legitimate, especially when
offenders. Where the offender is a minor, the the buy-bust team is accompanied at the
penalty for acts punishable by life target area by the informant. Similarly, the
imprisonment to death provided herein shall presentation of an informant as a witness is
be reclusion perpetua to death. not regarded as indispensable to the success
in prosecuting drug-related cases. In this
ADDENDUM: case, the informant had actively participated
in the buy-bust operation and her testimony,
1. The identity of the prohibited drug if presented, would merely corroborate the
must be established. testimonies of the members of the buy-bust
team. (People vs. Monceda, G.R. No. 176269,
Proof of the chain of custody from the November 13, 2013, Brion, J.)
time of seizure to the time such evidence is
presented in court ensures the absence of 3. What is “Marking”
doubt concerning the integrity of such vital
evidence. This requires as a minimum that “Marking” is the placing by the
the police mark the seized item (1) in the apprehending officer of some distinguishing
presence of the apprehended violator and signs with his/her initials and signature on
(2) immediately upon confiscation. (People the items seized. Consistency with the “chain
34
of custody” rule requires that the “marking” (People vs. Balibay, G.R. No. 202701,
of the seized items — to truly ensure that September 10, 2014, Perez, J.)
they are the same items that enter the chain
and are eventually the ones offered in First, it is not clear from the evidence
evidence — should be done (1) in the that the marking, which was done in the
presence of the apprehended violator (2) police station, was made in the presence of
immediately upon confiscation. (People vs. the accused or his representative. Although
Somoza, 701 SCRA 525, G.R. No. 197250, the Court has previously ruled that the
July 17, 2013, Leonardo-De Castro, J.) marking upon “immediate” confiscation of
the prohibited items contemplates even that
4. Chain of custody and objective test. which was done at the nearest police station
or office of the apprehending team, the same
To establish the chain of custody in a must always be done in the presence of the
buy-bust operation, the prosecution must accused or his representative.
establish the following links, namely: First,
the seizure and marking, if practicable, of the Second, the prosecution failed to duly
illegal drug recovered from the accused by accomplish the Certificate of Inventory and
the apprehending officer; Second, the to take photos of the seized items pursuant
turnover of the illegal drug seized by the to the above-stated provision.
apprehending officer to the investigating
officer; Third, the turnover by the Third, the Court finds conflicting
investigating officer of the illegal drug to the testimony and glaring inconsistencies that
forensic chemist for laboratory examination; would cast doubt on the integrity of the
and Fourth, the turnover and submission of handling of the seized drugs. (People of the
the marked illegal drug seized by the forensic Philippines vs. Freddy Salonga y Afiado, G.
chemist to the court. R. No. 194948, September 2, 2013, Sereno,
CJ.)
The “objective test” is the duty of the
prosecution to present a complete picture The following are the links that must
detailing the buy-bust operation — from the be established in the chain of custody in a
initial contact between the poseur-buyer and buy-bust situation: First, the seizure and
the pusher, the offer to purchase, the marking, if practicable, of the illegal drug
promise or payment of the consideration, recovered from the accused by the
until the consummation of the sale by the apprehending officer; Second, the turnover
delivery of the illegal subject of sale. (People of the illegal drug seized by the
vs. Clara, 702 SCRA 273, G.R. No. 195528, apprehending officer to the investigating
July 24, 2013, Perez, J.) officer; Third, the turnover by the
investigating officer of the illegal drug to the
6. Effect of Gaps or Lapses in the Chain of forensic chemist for laboratory examination;
Custody of Illegal Drugs. and Fourth, the turnover and submission of
the marked illegal drug seized from the
The discussion in People v. Lim is forensic chemist to the court.
apropos: x xx [A]ny apprehending team
having initial custody and control of said The first crucial link in the chain of
drugs and/or paraphernalia, should custody starts with the seizure from
immediately after seizure and confiscation, Enriquez of the dangerous drugs and its
have the same physically inventoried and subsequent marking. Nowhere in the
photographed in the presence of the accused, documentary and testimonial evidence of the
if there be any, and or his representative, prosecution can it be found when these items
who shall be required to sign the copies of were actually marked and if they were
the inventory and be given a copy marked in the presence of Enriquez or at
thereof. The failure of the agents to least his representative.
comply with such a requirement raises a
doubt whether what was submitted for The second link in the chain of
laboratory examination and presented in custody is the turnover of the illegal drug by
court was actually recovered from the the apprehending officer to the investigating
appellants. It negates the presumption officer. However, they both failed to identify
that official duties have been regularly the person to whom they turned over the
performed by the PAOC-TF agents. seized items. There is no evidence to show
35
that he was the person who received the 7. Crime of illegal sale of dangerous drugs
seized items from the apprehending officers. necessarily includes the crime of illegal
possession.
As for the third and the last links,
although records show that Chief of Police Well-settled in jurisprudence that
Erese signed the request for laboratory the crime of illegal sale of dangerous drugs
examination, he was not presented in court necessarily includes the crime of illegal
to testify as such. The testimony of Chief of possession of dangerous drugs.
Police Erese is indispensable because he
could have provided the critical link between The Court had further clarified, in
the testimony of SPO2 David, and the tenor of relation to the requirement of marking the
the testimony of P/Insp. Dizon, which the drugs “immediately after seizure and
parties have stipulated on. Moreover, no one confiscation,” that the marking may be
testified as to how the confiscated items undertaken at the police station rather than
were handled and cared for after the at the place of arrest for as long as it is done
laboratory examination. (People of the in the presence of the accused and that what
Philippines vs. Arturo Enriquez De los is of utmost importance is the preservation
Reyes, G.R. No. 197550, September of its integrity and evidentiary value. (People
25,2013, Leonardo-De Castro, J.) of the Philippines vs. Michael Maongco y
Yumonda, G.R. No. 196966, October
In the case at bar, instead of 23,2013, Leonardo-De Castro, J.)
immediately marking the subject drug upon
its confiscation, PO2 Tuzon marked it with 8. Failure to make an inventory and to
his initials “EAT” only upon arrival at the take photographs of the subject drug.
police station. While the failure of arresting
officers to mark the seized items at the place Contrary to the argument of the
of arrest does not, by itself, impair the defense, even the buy-bust team’s failure to
integrity of the chain of custody and render make an inventory and to take photographs
the confiscated items inadmissible in of the subject drug did not adversely affect
evidence, such circumstance, when taken in the prosecution’s case. What is essential is
light of the several other lapses in the chain that the integrity and evidentiary value of the
of custody that attend the present case, seized items which would be utilized in the
forms part of a gross, systematic, or determination of the guilt or innocence of the
deliberate disregard of the safeguards that accused are preserved. (People vs. Loks, G.R.
are drawn by the law, sufficient to create No. 203433, November 27, 2013, Reyes, J.)
reasonable doubt as to the culpability of the
accused. A proviso was added in the
implementing rules that “noncompliance
6. Failure to immediately mark the seized with these requirements under justifiable
drugs. grounds, as long as the integrity and the
evidentiary value of the seized items are
To be able to create a first link in the properly preserved by the apprehending
chain of custody, then, what is required is officer/team, shall not render void and
that the marking be made in the presence of invalid such seizures of and custody over
the accused and upon immediate said items.” Pertinently, it is the preservation
confiscation. “Immediate confiscation” has of the integrity and evidentiary value of the
no exact definition. Thus, in People v. Gum- seized items which must be proven to
Oyen, testimony that included the marking of establish the corpus delicti. (People vs.
the seized items at the police station and in Cerdon, G.R. No. 201111, August 6, 2014,
the presence of the accused was sufficient in Perez, J.)
showing compliance with the rules on chain
of custody. Marking upon immediate Coordination with the PDEA is not an
confiscation contemplates even marking at indispensable element of a proper buy-bust
the nearest police station or office of the operation. A buy-bust operation is not
apprehending team. (People of the invalidated by mere non-coordination with
Philippines vs. Giovanni Ocfemia y Chavez, the PDEA. (People vs. Montevirgen, G.R. No.
G.R. No. 185383, September 25, 2013 , 189840 December 11, 2013, Del Castillo, J.)
Leonardo-De Castro.)
36
9. What does marking upon immediate It is true that the prosecution did not
confiscation mean? formally offer in evidence the Certificate of
Inventory and the formal request for
It begins with the marking of the examination of the confiscated substance. Be
seized objects to fix its identity; Marking that as it may, the Court has previously held
upon “immediate” confiscation can that even if an exhibit is not formally offered,
reasonably cover marking done at the the same “may still be admitted against the
nearest police station or office of the adverse party if, first, it has been duly
apprehending team, especially when the identified by testimony duly recorded and,
place of seizure is volatile and could draw second, it has itself been incorporated in the
unpredictable reactions from its records of the case.” PO3 Velasquez
surroundings. (People vs. Bautista, G.R. No. categorically testified that an inventory of
198113 December 11, 2013, Abad, J.) the seized drugs was performed, a
corresponding certificate was prepared, and
10. Testimony of poseur-buyer not a formal request for examination was made.
indispensable. He further narrated that together with the
formal request, he submitted and delivered
The testimony of the poseur-buyer the confiscated drugs to the crime
was not therefore indispensable or laboratory. On the basis of the said formal
necessary; it would have been cumulative request, P/Insp. Roderos examined the
merely, or corroborative at best." His specimen and she likewise testified on this.
testimony can therefore be dispensed with Appellant’s counsel even asked the said
since the illicit transaction was actually prosecution witnesses regarding these
witnessed and adequately proved by the documents. Considering the said testimonies
prosecution witnesses. (People vs. Marcelo, and the fact that the documents were
G.R. No. 181541, August 18, 2014, Del incorporated in the records of the case, they
Castillo, J.) are therefore admissible against appellant.
(People vs. Baturi, G.R. No. 189812,
11. Failure to present the buy-bust September 01, 2014, Del Castillo, J.)
money.
14. Presentation of confidential
Failure to present the buy-bust informant.
money is not fatal to the prosecution’s cause.
It is not indispensable in drug cases since it The non-presentation of the
is merely corroborative evidence, and the confidential informant as a witness does not
absence thereof does not create a hiatus in ordinarily weaken the State's case against
the evidence for the prosecution provided the accused. However, if the arresting
the sale of dangerous drugs is adequately lawmen arrested the accused based on the
proven and the drug subject of the pre-arranged signal from the confidential
transaction is presented before the court. informant who acted as the poseur buyer, his
(People vs. Bayan, G.R. No. 200987, August non-presentation must be credibly explained
20, 2014, Perez, J.) and the transaction established by other
ways in order to satisfy the quantum of proof
12. Actual and constructive possession beyond reasonable doubt because the
distinguished. arresting lawmen did not themselves
participate in the buy-bust transaction with
Exclusive possession or control is not the accused.
necessary. The accused cannot avoid
conviction if his right to exercise control and In People vs. Lopez (214 SCRA 323), it
dominion over the place where the was held that there was no need for the
contraband is located, is shared with prosecution to present the confidential
another. (People vs. De La Trinidad,G.R. informer as the poseur-buyer himself
No. 199898, September 03, 2014,Perez, J.) positively identified the accused as the one
who sold to him one deck of
methamphetamine hydrochloride or
13. Effect of failure to offer in evidence the
Certificate of Inventory and the formal "shabu." The trial court then properly relied
request for examination of the on the testimonies of the police officers
confiscated substance. despite the decision of the prosecution not to
present the informer. (People vs. Andaya,
37
G.R. No. 183700, October 13, 2014, causes something to be brought into the
Bersamin, J.) country, he necessarily has possession of the
same. Necessarily, therefore, importation
15. When seized item is “fruit of the can never be proven without first
poisonous tree”. establishing possession, affirming the fact
that possession is a condition sine qua
Records have established that both non for it would rather be unjust to convict
the arrest and the search were made without one of illegal importation of regulated drugs
a warrant. While the accused has already when he is not proven to be in possession
waived his right to contest the legality of his thereof.
arrest, he is not deemed to have equally
waived his right to contest the legality of the In a similar manner, considering that
search. (Danilo Villanueva y Alcaraz vs. illegal possession is likewise an element of
People, G.R. No. 199042, November 17, and is necessarily included in illegal
2014, Sereno, CJ. ) importation of dangerous drugs, convicting
appellants of the former, if duly established
16. Plain view doctrine and its requisites. beyond reasonable doubt, does not amount
to a violation of their right to be informed of
The plain view doctrine applies when the nature and cause of accusation against
the following requisites concur: (1) the law them. Indeed, where an accused is charged
enforcement officer in search of the evidence with a specific crime, he is duly informed not
has a prior justification for an intrusion or is only of such specific crime but also of lesser
in a position from which he can view a crimes or offenses included therein.
particular area; (2) the discovery of the
evidence in a plain view is inadvertent; and The elements of illegal possession of
(3) it is immediately apparent to the officer regulated drugs are as follows: (a) the
that the item he observes may be evidence of accused is in possession of an item or object
a crime, contraband or otherwise subject to which is identified to be a regulated drug; (b)
seizure. (Rizaldy Sanchez y Cajili vs. People, such possession is not authorized by law;
G.R. No. 204589, November 19, 2014, and (c) the accused freely and consciously
Mendoza, J.) possessed the regulated drug. The evidence
on record clearly established that appellants
17. With reference to the importation and were in possession of the bags containing the
possession of blasting caps, it seems plain regulated drugs without the requisite
beyond argument that the latter is authority. As mentioned previously, on the
inherent in the former so as to make them date of appellants’ arrest, the apprehending
juridically identical. There can hardly be officers were conducting a surveillance of the
importation without possession. When coast of Ambil Island in the Municipality of
one brings something or causes Looc, Occidental Mindoro, upon being
something to be brought into the country, informed by the Municipality’s Barangay
he necessarily has the possession of it. Captain that a suspicious-looking boat was
The possession ensuing from the within the vicinity. Not long after, they
importation may not be actual, but legal, spotted two (2) boats anchored side by side,
or constructive, but whatever its the persons on which were transferring
character, the importer, in our opinion, is cargo from one to the other. Interestingly, as
a possessor in the juristic sense and he is they moved closer to the area, one of the
liable to criminal prosecution. boats hurriedly sped away. Upon reaching
the other boat, the police officers found the
Applying the aforequoted ruling, this appellants with several transparent plastic
Court finds that while appellants cannot be bags containing what appeared to be shabu
held liable for the offense of illegal which were plainly exposed to the view of
importation charged in the information, their the officers. Clearly, appellants were found to
criminal liability for illegal possession, if be in possession of the subject regulated
proven beyond reasonable doubt, may drugs. (People vs. Chi Chan Liu and Hui Lao
nevertheless be sustained. As previously Chung, G.R. No. 189272, January 21, 2015,
mentioned, the crime of importation of Peralta, J.)
regulated drugs is committed by importing
or bringing any regulated drug into the 18. Decoy Solicitation.
Philippines without being authorized by
law. Indeed, when one brings something or
38
The chain of custody is not In both cases of illegal sale and illegal
established solely by compliance with the possession of dangerous drugs, the
prescribed physical inventory and prosecution must show the chain of custody
photographing of the seized drugs in the over the dangerous drug in order to establish
presence of the enumerated persons. The the corpus delicti, which is the dangerous
Implementing Rules and Regulations of R. A. drug itself. The chain of custody rule comes
No. 9165 on the handling and disposition of into play as a mode of authenticating the
seized dangerous drugs states: x x x seized illegal drug as evidence.
Provided, further, that non-compliance with
these requirements under justifiable A substantial gap in the chain of
grounds, as long as the integrity and custody renders the identity and integrity of
evidentiary value of the seized items are the corpus delicti dubious. (Lopez vs.
properly preserved by the apprehending People,G.R. No. 188653, January 29,
officer/team, shall not render void and 2014,Perez, J.)
invalid such seizures of and custody over
said items. (People vs. Rosauro, G.R. No. First link of the chain, the seizure and
209588, February 18, 2015, Perez, J.) marking, if practicable, of the illegal drug
recovered from the accused by the
19. What does “deliver” mean? apprehending officer.
Under Article I, Section 3(k) of the Second link of the chain, the turnover
same statute, the term “deliver” means “any of the illegal drug seized by the
act of knowingly passing a dangerous drug to apprehending officer to the investigating
another, personally or otherwise, and by any officer.
means, with or without consideration.” On
the other hand, “sell” as defined in Section Third link of the chain, the turnover
3(ii) refers to “any act of giving away any by the investigating officer of the illegal drug
dangerous drug and/or controlled precursor to the forensic chemist for laboratory
and essential chemical whether for money or examination.
any other consideration.”
Fourth link of the chain, the turnover
To establish the guilt of an accused and submission of the marked illegal drug
for the illegal delivery of a dangerous drug, seized by the forensic chemist to the court.
there must be evidence that “(1) the accused (People vs. Dahil and Castro, G.R. No.
passed on possession of a dangerous drug to 212196, January 12, 2015, Mendoza, J.)
another, personally or otherwise, and by any
means; (2) such delivery” is not authorized It has already been held that “the
by law; and (3) the accused knowingly made infractions of the so-called Miranda rights
the delivery with or without consideration. render inadmissible only the extrajudicial
confession or admission made during
The presentation of the marked custodial investigation.” Here, appellant’s
money is immaterial in this case since the conviction was based not on his alleged
crime of illegal delivery of a dangerous drug uncounseled confession or admission but on
can be committed even without the testimony of the prosecution witness.
consideration or payment. (People vs. Reyes, (People vs. Bio, G.R. No. 195850, February
G.R. No. 194606, February 18, 2015, Del 16, 2015, Del Castillo, J.)
Castillo, J.)
39
I. IN GENERAL WOMEN AND THEIR CHILDREN”
UNDER SECTION 3?
1.00 WHAT IS THE POLICY OF THE STATE Section 3 states that violence against
WITH RESPECT TO THE DIGNITY OF women and children includes, but is not
WOMEN AND CHILDREN? limited to, the following acts: a) Physical
Violence b) Sexual violence c)
The State values the dignity of women and Psychological violence d) Economic abuse.
children and guarantees full respect for
human rights. It also recognizes the need to 1.03 WHAT IS "PHYSICAL VIOLENCE"?
protect the family and its members
particularly women and children, from It refers to acts that include bodily or
violence and threats to their personal safety physical harm;
and security.
1.04 WHAT IS “SEXUAL VIOLENCE"?
PEOPLE VS. CABALQUINTO
G.R. No. 167693, September 19, 2006 It refers to an act which is sexual in
nature, committed against a woman or her
RULING: Taking all these opinions into child. It includes, but is not limited to:
account and in view of recent enactments
which unequivocally express the intention to a) rape, sexual harassment, acts of
maintain the confidentiality of information in lasciviousness, treating a woman or
cases involving violence against women and her child as a sex object, making
demeaning and sexually suggestive
their children, in this case and henceforth,
remarks, physically attacking the
the Court shall withhold the real name of the sexual parts of the victim's body,
victim-survivor and shall use fictitious forcing her/him to watch obscene
initials instead to represent her. Likewise, publications and indecent shows or
the personal circumstances of the victims- forcing the woman or her child to do
survivors or any other information tending indecent acts and/or make films
to establish or compromise their identities, thereof, forcing the wife and
mistress/lover to live in the conjugal
as well those of their immediate family or
home or sleep together in the same
household members, shall not be disclosed. room with the abuser;
1.01 DEFINE VIOLENCE AGAINST WOMEN
b) acts causing or attempting to
AND THEIR CHILDREN. cause the victim to engage in any
sexual activity by force, threat of
Section 3 of R.A. 9262 gives the definition
force, physical or other harm or
of Violence against women and children. It
threat of physical or other harm or
states:
coercion;
“It refers to any act or a series of acts
c) Prostituting the woman or child.
committed by any person against a
woman who is his wife, former wife, or
against a woman with whom the person
1.05 WHAT IS "PSYCHOLOGICAL
has or had a sexual or dating relationship,
VIOLENCE"?
or with whom he has a common child, or
against her child whether legitimate or
illegitimate, within or without the family It refers to acts or omissions causing
abode, which result in or is likely to result or likely to cause mental or emotional
in physical, sexual, psychological harm or suffering of the victim such as but not limited
suffering, or economic abuse including to intimidation, harassment, stalking,
threats of such acts, battery, assault, damage to property, public ridicule or
coercion, harassment or arbitrary humiliation, repeated verbal abuse and
deprivation of liberty. “ mental infidelity. It includes causing or
allowing the victim to witness the physical,
sexual or psychological abuse of a member of
1.02 WHAT ARE THE ACTS INCLUDED IN
the family to which the victim belongs, or to
THE TERM “VIOLENCE AGAINST
witness pornography in any form or to
40
witness abusive injury to pets or to unlawful 1.09 EXPLAIN THE CONCEPT OF “SEXUAL
or unwanted deprivation of the right to RELATIONS”.
custody and/or visitation of common
children. It refers to a single sexual act which
may or may not result in the bearing of a
1.06 WHAT IS "ECONOMIC ABUSE"?
common child.
It refers to acts that make or attempt
to make a woman financially dependent 1.10 DIFFERENTIATE “DATING
which includes, but is not limited to the RELATIONSHIP” FROM “SEXUAL
following: RELATIONS”.
41
1.12 DOES A SINGLE ACT OF RULING: The Court is not persuaded quoting
HARASSMENT ENOUGH TO Sec. 3(a) of RA 9262. The law is broad in
CONVICT AN OFFENDER? scope but specifies two limiting
qualifications for any act or series of acts to
Yes. Section 3(a) of R.A. 9262 punishes be considered as a crime of violence against
“any act or series of acts” that constitutes women through physical harm, namely: 1) it
violence against women. This means that a is committed against a woman or her child
single act of harassment, which translates and the woman is the offender’s wife, former
into violence, would be enough. The object of wife, or with whom he has or had sexual or
the law is to protect women and children. dating relationship or with whom he has a
Punishing only violence that is repeatedly common child; and 2) it results in or is likely
committed would license isolated ones. to result in physical harm or suffering.
Rustan Ang Y Pascua vs. Sagud, G.R. No.
182835, April 20, 2010 Notably, while it is required that the
offender has or had a sexual or dating
1.13 MAY A TEMPORARY PROTECTION relationship with the offended woman, for
ORDER (TPO) BE ISSUED IN FAVOR RA 9262 to be applicable, it is not
OF A MAN AGAINST HIS WIFE? indispensable that the act of violence be a
A TPO cannot be issued in favor of a man consequence of such relationship. Nowhere
against his wife under R.A. No. 9292, known in the law can such limitation be inferred.
as the Anti-Violence Against Women and Hence, applying the rule on statutory
Their Children Act of 2004.I construction that when the law does not
In one case, the judge was found guilty of distinguish, neither should the courts, then,
gross ignorance of the law for issuing a clearly, the punishable acts refer to all acts of
Temporary Protection Order (TPO) in favor violence against women with whom the
of a male petitioner. Indeed, as a family court offender has or had a sexual or dating
judge, the judge is expected to know the relationship.
correct implementation of R.A. No. 9292. See As correctly ruled by the RTC, it is
Sylvia Santo vs. Judge Arcaya-Chua, A.M. No. immaterial whether the relationship had
Rtj-07-2093, April 23, 2010 ceased for as long as there is sufficient
1.14 IS IT INDISPENSABLE THAT THE ACT evidence showing the past or present
OF VIOLENCE BE A CONSEQUENCE existence of such relationship between the
OF THE DATING OR SEXUAL offender and the victim when the physical
RELATIONSHIP? harm was committed. Dabalos Y San Diego vs.
Judge Paras Quiambao, et al., G.R. No. 193960,
This has been answered in this case- January 7, 2013
42
1.17 IS A BATTERED WOMEN SYNDROME tranquil, loving (or, at least, nonviolent)
A PROPER DEFENSE? phase.
43
this “good, gentle and caring man” is the real Suggested Answer: The three phases
person whom she loves. are the following: a) tension-building phase
b) acute battering incident c) tranquil and
A battered woman usually believes loving phase.
that she is the sole anchor of the emotional
stability of the batterer. Sensing his isolation C. Would the defense prosper despite the
and despair, she feels responsible for his absence of any of the elements for
well-being. The truth, though, is that the justifying circumstances of self-defense
chances of his reforming, or seeking or under the Revised Penal Code?
receiving professional help, are very slim,
especially if she remains with Suggested Answer:Yes, R.A. 9262
him. Generally, only after she leaves him expressly states that victim-survivors who are
does he seek professional help as a way of found by the courts to be suffering from
getting her back. Yet, it is in this phase of battered woman syndrome do not incur any
remorseful reconciliation that she is most criminal and civil liability notwithstanding
thoroughly tormented psychologically. the absence of any of the elements for
justifying circumstances of self-defense under
Illustrative Cases the Revised Penal Code.
49
An Act Penalizing the Making Or Drawing 1.04 DOES BP.22 COVER MANAGER’S
And Issuance Of A Check Without CHECK CASHIER’S CHECK?
Sufficient Funds Or Credit And For Other
Purposes. No. As enunciated in the case of New
Pacific Timber and Supply Company, Inc. vs.
[BAR Q. 2014, 2010 ’03,’02, ’96, 1990, Seneres, 101 SCRA 686, by its peculiar
‘88’,’86] character and general use in the commercial
world, it is as good as the money it
________________________________________________ represents and is therefore deemed as cash.
50
c) that the act of crossing the check that In the absence of contrary provision in
serves as a warning to the holder that Batas Pambansa Blg. 22, the general
the check has been issued for a provisions of the Revised Penal Code which,
definite purpose so that he must
by their nature, are necessarily applicable,
inquire if he has secured the check
pursuant to that purpose. State may be applied suppletorily, including the
Investment House vs. IAC, 175 SCRA provisions on conspiracy.
316
A. WAYS BY WHICH VIOLATION OF BP.
1.09 DOES BP.22 COVER CROSSED CHECK? 22 ARE COMMITTED.
b) such person has sufficient funds in First, the elements of estafa under
or credit with the drawee bank; paragraph 2(d), Article 315 of the RPC are
(1) the postdating or issuance of a check in
c) failure to keep sufficient funds or to payment of an obligation contracted at the
maintain a credit to cover the full
time the check was issued; (2) lack of
amount of the check if presented
within a period of ninety (90) days sufficiency of funds to cover the check; and
from the date appearing thereon; (3) damage to the payee. Cajigas vs. People,
d) for which reason it is dishonored by 580 SCRA 54, February 23, 2009
the drawee bank.
For violation of the “Bouncing Check
Illustrative case Law”, deceit and damage are not essential or
required. The essential element of that
BAR Q. [1996]The accused was convicted offense is knowledge on the part of the
under BP Blg. 22 for having issued maker or drawer of the check of the
several checks which were dishonored by insufficiency of his funds. The gravamen of
the offense is the issuance of a bad check, not
the drawee bank on their due date
the non-payment of an obligation.
because the accused closed her account
after the issuance of checks. On appeal, Second, Article 315, Par.2 (d) is a
she argued that she could not be crime against property because the issuance
convicted under BP Blg. 22 by reason of of the check is used as a means to obtain a
the closing of her account because said valuable consideration from the payee.
law applies solely to checks dishonored
On the other hand, in BP. 22, the mere
by reason of insufficiency of funds and act of issuing an unfunded check is an offense
that at the time she issued the checks against public order to stem the harm caused
concerned, she had adequate funds in the by these bouncing checks to the community.
bank. While she admits that she may be Mitra vs. People, July 05, 2010
54
something of value as a result of the
Third, in estafa, the failure of the postdating or issuance of the bad check in
drawer to deposit the amount necessary to payment of a pre-existing obligation. People
secure payment of the check within 3 days vs. Lilius, 59 Phil. 339
from receipt of notice from the bank and or
the payee or holder that said check has been Unlike in estafa, the accused in this
dishonored for lack or insufficiency of funds case obtain nothing when he issued the
is prima facie evidence of deceit constituting check, his debt for the payment thereof had
false pretense or fraudulent act. been contracted prior to its issuance.
In BP. 22, the failure of the drawer to 2.07 EXPLAIN DECEIT AS AN ELEMENT OF
pay in full the payee or holder within 5 ESTAFA.
banking days after receiving notice that the
check has been rejected by the drawee bank Deceit as an element of estafa is a
gives rise to presumption of knowledge of specie of fraud. It is actual fraud which
insufficiency of funds or credit. consists in any misrepresentation or
contrivance where a person deludes another,
Fourth, in estafa, the check is issued
in payment of a simultaneous obligation to to his hurt. There is deceit when one is
defraud the creditor. misled -- by guile, trickery or by other means
- to believe as true what is really false. Dy vs.
In BP. 22, the check is issued in People, 571 SCRA 59, November 14, 2008
payment of a pre-existing obligation.
2.08 EXPLAIN DAMAGE AS AN ELEMENT
Fifth, in estafa, an endorser who with OF ESTAFA.
knowledge that the check is worthless and
had acted with deceit, is liable. Damage as an element of estafa may
consist in (1) the offended party being
In BP. 22, the persons liable are the deprived of his money or property as a result
maker, drawer and the issuer but not an
of the defraudation; (2) disturbance in
endorser.
property right; or (3) temporary prejudice.
Lastly, since estafa is mala in se, good Nagrampa vs. People, 386 SCRA 412
faith is a proper defense.
2.09 EXPLAIN ESTAFA THRU THE
BP 22 is mala prohibitum, it is ISSUANCE OF A CHECK.
punished by a special law and therefore,
good faith is not a defense. To constitute estafa, the act of
postdating .or issuing a check in payment of
2.06 DIFFERENTIATE “SIMULTANEOUS obligation must be the efficient cause of
OBLIGATION” FROM “PRE- defraudation and, as such, it should be either
EXISTING” OBLIGATION. prior to, or simultaneous with, the act of
fraud. Nagrampa vs. People, 386 SCRA 412
“Simultaneous obligation” as an
element of estafa connotes that the issuance
of a check is used as a means to obtain 2.10 CAN A PERSON BE BOTH LIABLE FOR
valuable consideration from the payee. VIOLATION OF BP 22 AND ANOTHER
Deceit is the efficient cause for defraudation. PROVISION OF THE REVISED PENAL
To defraud is to deprive some right, interest, CODE? (SEC.5)
or property by deceitful devise. People
vs.Quesada, 60 Phil. 515 Yes, the filing of a criminal case under
B.P. 22 shall not prejudice any liability
In the issuance of a check in payment arising from a felony committed under the
of a “pre-existing obligation”, the drawer Revised Penal Code. Section 5 is explicit:
derives no material benefit in return as its
consideration had long been delivered to him “Prosecution under this Act shall be
before the check was issued.Since an without prejudice to any liability for
obligation has already been contracted, it violation of any provision of the Revised
cannot be said that the payee parted with his Penal Code.”
property or that the drawer has obtained
55
B. DEFENSES IN BP. 22 actually notified that the check
was dishonored, and that he or
3.00 WHAT ARE THE POSSIBLE she failed, within five (5) banking
DEFENSES IN BP 22? days from receipt of the notice, to
pay the holder of the check the
a. Checks issued to person who was amount due thereon or to make
not authorized to collect and arrangement for its payment.
receive the same are without Absent proof that the accused
valuable consideration and are received such notice, a
also considered issued for a non- prosecution for violation of the
existing account. Cariño v. De Bouncing Checks Law cannot
Castro, 553 SCRA 688, April 30, prosper.
2008
In the case of Ambito vs.
b. The presentation of the registry People and CA, G.R. No. 127327, 13
card, with an unauthorized February 2009, there being no
signature, does not meet proof that he was given any
therequired proof beyond written notice informing him of
reasonable doubt that the the fact that his checks were
petitioner received such noticed, dishonored and giving him five
especially considering that he (5) banking days within which to
denied receiving it. make arrangements for payment
of the said checks, the rebuttable
As there is insufficient proof that presumption that he had
the petitioner received notice of knowledge of the insufficiency of
dishonor, the presumption that his funds has no application in
he had knowledge of the present case.
insufficiency of funds cannot
arise. Suarez v. People 555, SCRA f. To be liable under Section 1 of
238, June 19, 2008 B.P. Blg. 22, the check must be
dishonored by the drawee bank
c. Presumption of knowledge of for insufficiency of funds or
insufficiency of funds is not credit or dishonored for the same
conclusive as it may be rebutted reason had not the drawer,
by full payment. Payment is a without any valid cause, ordered
complete defense that would lie the bank to stop payment.
regardless of the strength of the
evidence presented by the
prosecution. Tan vs. Philippine In Tan vs. People, 349 SCRA 777,
Commercial International Bank 2001, the Court acquitted the petitioner
552 SCRA 532, April 23, 2008 therein who was indicted under B.P. Blg. 22,
upon a check which was dishonored for the
d. Only a full payment at the time of reason DAUD, among others. Even without
its presentment or during the
relying on the credit line, petitioner's bank
five-day grace period could
exonerate one from criminal account covered the check she issued
liability under B.P. Blg. 22 and because even though there were some
that subsequent payments can deposits that were still uncollected the
only affect the civil, but not the deposits became "good" and the bank
criminal, liability. Tan sv. certified that the check was "funded."
Philippine Commercial
International Bank 552 SCRA 532, To be liable under Section 1of B.P.
April 23, 2008 Blg. 22, the check must be dishonored by the
drawee bank for insufficiency of funds or
e. Under B.P. Blg. 22, the
credit or dishonored for the same reason had
prosecution must prove not only
that the accused issued a check not the drawer, without any valid cause,
that was subsequently ordered the bank to stop payment.
dishonored. It must also
establish that the accused was
56
g. Blg. 22 speaks only of B.P. Blg. 22. The mere act of issuing a
insufficiency of funds and does worthless check is malum
not treat of uncollected deposits. prohibitum provided the other elements of
the offense are properly proved.
In Dy vs. People, 571 SCRA 59,
November 14, 2008, the High Court declared Noteworthy to cite to illustrate this point
that the law cannot be interpreted in such a is the case of-
way as to expand its provision to encompass
the situation of uncollected deposits because Dreamwork Construction, Inc. vs.
it would make the law more onerous on the Janiola and Hon. Famini
G.R. No. 184861, 30 June 2009
part of the accused. Again, criminal statutes
are strictly construed against the FACTS: On October 18, 2004, petitioner
Government and liberally in favor of the Dreamwork Construction Inc., through its
accused. President, filed a case for violation of Batas
Pambansa Bilang 22 (BP 22) against private
h. Prescription is a proper defense. respondent. Correspondingly, petitioner
The prescriptive period is 4 years filed a criminal information for violation of
reckoned from the lapse of the 5 BP 22 against private respondent. On
banking days from notice of September 20, 2006, private respondent,
dishonor within which to make joined by her husband, instituted a civil
good the check. complaint against petitioner by filing a
Complaint for the rescission of an alleged
construction agreement between the parties,
i. Forgery of the signature as well as for damages. Notably, the checks,
appearing on the check. When a subject of the criminal cases before the MTC,
signature is forged or made were issued in consideration of the
without the authority of the per- construction agreement.
son whose signature it purports
to be the check is wholly Thereafter, on July 25, 2007, private
inoperative unless the party respondent filed a Motion to Suspend
against whom it is sought to Proceedings alleging that the civil case posed
enforce such right is precluded a prejudicial question as against the criminal
from setting up the forgery or cases.
want of authority. Ilusorio vs.
Court of Appeals, 353 SCRA 89 Petitioner opposed the suspension of
the proceedings in the criminal cases as the
3.01 IS AN AGREEMENT SURROUNDING rescission of the contract upon which the
THE ISSUANCE OF DISHONORED bouncing checks were issued is a separate
CHECKS RELEVANT TO THE and distinct issue from the issue of whether
PROSECUTION FOR VIOLATION OF private respondent violated BP 22. The MTC
BATAS PAMBANSA 22? granted the Motion to Suspend Proceedings.
No, an agreement surrounding the ISSUE: Whether the resolution of the civil
case for rescission of construction
issuance of dishonored checks is irrelevant
agreement between the parties
to the prosecution for violation of Batas determinative of the prosecution of the
Pambansa Blg. 22. Dreamwork Construction, criminal action for violation of BP 22.
Inc. v. Janiola 591 SCRA 466, June 30, 2009
RULING: Prejudicial question is inapplicable
It has been consistently declared that the in this case. The fact that there exists a valid
cause or reason for the issuance of a check is contract or agreement to support the
inconsequential in determining criminal issuance of the check/s or that the checks
culpability under B.P. Blg. 22. were issued for valuable consideration does
not make up the elements of the crime. Thus,
As held in the case of Jose v. Suarez 556 the Court has held in a long line of cases that
SCRA 772, June 30, 2008, the cause or reason the agreement surrounding the issuance of
dishonored checks is irrelevant to the
for the issuance of a check is inconsequential
prosecution for violation of BP 22. It must be
in determining criminal culpability under
57
emphasized that the gravamen of the offense took place, respondent is not exempt from
charge is the issuance of a bad check. The prosecution for violation of B.P. 22 for the
purpose for which the check was issued, the dishonored checks. Land Bank of the
terms and conditions relating to its issuance,
Philippines vs. Jacinto, G.R. No. 154622, August
or any agreement surrounding such issuance
are irrelevant to the prosecution and 3, 2010
conviction of petitioner.
It is well settled that the mere act of
To determine the reason for which issuing a worthless check, even if merely as
checks are issued, or the terms and an accommodation, is covered by B.P. 22. The
conditions for their issuance, will greatly Court has held that the agreement
erode the faith the public reposes in the surrounding the issuance of dishonored
stability and commercial value of checks as checks is irrelevant to the prosecution for
currency substitutes, and bring havoc in
violation of B.P. 22.
trade and in banking communities. The clear
intention of the framers of B.P. 22 is to make 3.04 STOP PAYMENT IN BP. 22
the mere act of issuing a worthless check
malum prohibitum. a. IS “STOP PAYMENT” A PROPER
DEFENSE IN BP. 22?
3.02 IS LACK OF VALUABLE
CONSIDERATION A PROPER It depends. Although the drawer
DEFENSE IN VIOLATION OF BP 22?
ordered a “STOP PAYMENT” or
No. The issue of lack of valuable countermand, yet if it was clear from the
consideration for the issuance of checks statement of account that the check bounced
which were later on dishonored for due to insufficiency of funds, the drawer of
insufficient funds is immaterial to the the check is still liable.Chang vs. IAC, 146
success of a prosecution for violation of BP SCRA 464
22. Dreamwork Construction, Inc. v. Janiola
C. CORPORATION IN RELATION TO BP.
591 SCRA 466, June 30, 2009 22
In Lunaria vs. People, 5701 SCRA 572, 4.00 DIFFERENTIATE CORPORATE CHECK
November 11, 2008, the Supreme Court FROM A PERSONAL CHECK.
stated that even in cases where there had
been payment, through compensation or A corporate check is one signed by a
some other means, there could still be natural person in the name of the
prosecution for violation of B.P. 22. The corporation. The drawer, in effect, is the
gravamen of the offense under this law is the corporation or juridical entity while
act of issuing a worthless check or a check personal check is one drawn by a natural
that is dishonored upon its presentment for person in his name.
payment, not the nonpayment of the
obligation. 4.01 WHO IS LIABLE IF THE CHECK IS
DRAWN BY A CORPORATION,
3.03 NOVATION IN BP. 22 COMPANY OR ENTITY?
58
“This provision recognizes the 4.04 MAY A MEMBER OF THE BOARD OF
reality that a corporation can only act DIRECTORS OF A CORPORATION
through its officers. Hence, its wording is FILE A CASE OF BP 22?
unequivocal and mandatory – that the
person who actually signed the corporate Yes, provided he is authorized to sue
check shall be held liable for a violation of for and on behalf of the corporation. Under
BP 22. This provision does not contain any Section 36 of the Corporation Code, read in
condition, qualification or limitation.” relation to Section 23, it is clear that where a
corporation is an injured party, its power to
It went on to elucidate: sue is lodged with its board of directors or
trustees.
“In the case of Llamado v. Court of
Appeals, the Court ruled that the accused was In Muñoz vs. People, 548 SCRA 473,
liable on the unfunded corporate check which March 14, 2008, Concord, a domestic
he signed as treasurer of the corporation. He corporation, was the payee of the bum check,
could not invoke his lack of involvement in the not petitioner. Therefore, it is Concord, as
negotiation for the transaction as a defense payee of the bounced check, which is the
because BP 22 punishes the mere issuance of a injured party. Since petitioner was neither a
bouncing check, not the purpose for which the payee nor a holder of the bad check, he had
check was issued or in consideration of the neither the personality to sue nor a cause of
terms and conditions relating to its issuance. action against the accused. Petitioner failed
In this case, Mitra signed the LNCC checks as to show any proof that he was authorized
treasurer. Following Llamado, she must then or deputized or granted specific powers
be held liable for violating BP 22.” by Concord's board of director to sue for
and on behalf of the firm. Clearly,
4.02 EXPLAIN WHY A CORPORATE
petitioner as a minority stockholder and
OFFICER WHO ISSUED A
DISHONORED CHECK IS member of the board of directors had no
PERSONALLY LIABLE. such power or authority to sue
on Concord's behalf.
The personal liability of the
corporate officer is predicated on the D. CIVIL LIABILITY
principle that he cannot shield himself from
liability from his own acts on the ground that 5.00 CITE CERTAIN PRINCIPLES ON CIVIL
it was a corporate act and not his personal LIABILITY.
act. Gosiaco vs. Ching and Casta, G.R. 173807,
16 April 2009 a. An acquittal based on
reasonable doubt does not
4.03 WHO MUST RECEIVE THE NOTICE OF preclude the award of civil
DISHONOR IF THE BOUNCED CHECK damages.
IS DRAWN BY A CORPORATION,
COMPANY OR ENTITY?
b. The possible single civil liability
The officer who is accused of signing arising from the act of issuing a
the check must receive the notice of dishonor. bouncing check can be the
Constructive notice to the corporation, who subject of both civil actions
has a separate personality from its officer, is deemed instituted with the
estafa case and the prosecution
not enough. The Court stated its importance
for violation of Batas
when it held in Marigomen vs. People, 459 Pambansa Blg. 22,
SCRA 169, that if the drawer or maker is an simultaneously available to the
officer of a corporation, the notice of dishonor complaining party, without
to the said corporation is not notice to the traversing the prohibition
employee or officer who drew or issued the against forum shopping.
check for and in its behalf.
Under the present revised Rules, the
criminal action for violation of BP Blg. 22
59
includes the corresponding civil action to The Rules even prohibits the
recover the amount of the checks. It should reservation of a separate civil action, i.e., one
be stressed, this policy is intended to can no longer file a separate civil case after
discourage the separate filing of the civil the criminal complaint is filed in court. The
action. In fact, the Rules even prohibits the only instance when separate proceedings are
reservation of a separate civil action, i.e., one allowed is when the civil action is filed ahead
can no longer file a separate civil case after of the criminal case. Even then, the Rules
the criminal complaint is filed in court. encourage the consolidation of the civil and
criminal cases.
The only instance when separate
proceedings are allowed is when the civil IS THERE AN EXCEPTION?
action is filed ahead of the criminal case.
Even then, the Rule encourages the Yes, if there is a finding of gross
consolidation of the civil and criminal cases. mistake committed by a prosecutor in
Thus, where petitioner’s rights may be fully handling BP Blg. 22 cases as enunciated in
adjudicated in the proceedings before the the landmark case of Cheng vs. Sy, G. R. No.
court trying the BP Blg. 22 cases, resort to a 174238, July 7, 2009.
separate action to recover civil liability is In this case, petitioner filed two cases
clearly unwarranted on account of res of estafa before the RTC and two cases for
judicata, for failure of petitioner to appeal the violation of B. P. Blg. 22 before the MTC
civil aspect of the cases. In view of this special against the respondents for issuing to her
rule governing actions for violation of BP Blg. PBC checks in payment of their loan, both of
22, Article 31 of the Civil Code is not which were dishonored for having been
applicable. Cheng v. Sy 592, SCRA 155, July 7, drawn against a closed account. The estafa
2009 cases were dismissed for failure of the
c. The rule is that upon filing of prosecution to prove the elements of the
the estafa and Batas Pambansa crime, while the B. P. Blg. 22 cases were
Blg. 222 cases against dismissed, on demurrer, on account of the
respondents, where the failure of petitioner to identify the accused
petitioner has not made any respondents in open court. Petitioner
waiver, express reservation to indirectly faulted the prosecutor for failure
litigate separately, or has not
to protect her interest.
instituted the corresponding
civil action to collect the
The Supreme Court finds that
amount involved and damages
prior to the criminal action, the petitioner would be left without a remedy to
civil action is deemed instituted recover from respondents the allegedly
with the criminal cases. Cheng loaned from her. It ruled:
v. Sy 592 SCRA 155, July 7, 2009
“It is in this light that we find petitioner’s
5.01 MAY PETITIONER’S ACTION TO contention that she was not assisted by a
RECOVER RESPONDENT’S CIVIL private prosecutor during the BP Blg. 22
LIABILITY STILL BE ALLOWED TO proceedings critical. Petitioner indirectly
PROSPER SEPARATELY AFTER THE protests that the public prosecutor failed
BP. 22 CASES WERE DISMISSED? to protect and prosecute her cause when
he failed to have her establish the
No. Under the present revised Rules, identities of the accused during the trial
the criminal action for violation of BP Blg. 22 and when he failed to appeal the civil
includes the corresponding civil action to action deemed impliedly instituted with
recover the amount of the checks. This policy the BP Blg. 22 cases. On this ground, we
is intended to discourage the separate filing agree with petitioner.
of the civil action.
Faced with the dismissal of the BP
Blg. 22 cases, petitioner’s recourse
60
pursuant to the prevailing rules of should ascertain whether or not the
procedure would have been to appeal the obligation itself is valid and demandable. The
civil action to recover the amount loaned to litigation of both questions could, in theory,
respondents corresponding to the bounced proceed independently and simultaneously
checks. Hence, the said civil action may without being ultimately conclusive on one
proceed requiring only a preponderance of or the other. Gosiaco vs. Ching 585 SCRA 471,
evidence on the part of petitioner. Her April 16, 2009
failure to appeal within the reglementary
period was tantamount to a waiver 5.03 CAN A COURT IMPOSE SUBSIDIARY
CIVIL LIABILITY AGAINST A
altogether of the remedy to recover the civil
CORPORATION IN BP. 22 CASE?
liability of respondents. However, due to
the gross mistake of the prosecutor in the No. In Gosiaco vs. Ching And Casta,
BP Blg. 22 cases, we are constrained to G.R. No. 173807, 16 April 2009, the Supreme
digress from this rule. “ Court had the occasion to explain the reason
way. It held that nowhere in B.P. Blg. 22 is it
5.02 CIVIL LIABILITY WHEN A provided that a juridical person may be
CORPORATION IS INVOLVED- impleaded as an accused or defendant in the
prosecution for violations of that law, even in
a. Under the amended rules on the litigation of the civil aspect thereof.
bouncing checks, the previous
option to directly pursue the civil It might be argued that under the
liability against the corporation current rules, if the signatory were made
that incurred the obligation is no liable for the amount of the check by reason
longer that clear. of the B.P. Blg. 22 case, such signatory would
have the option of recovering the same
B.P. Blg. 22 imposes a distinct civil
amount from the corporation.
liability on the signatory of the check which
is distinct from the civil liability of the If the signatory does not have sufficient
corporation for the amount represented assets to answer for the amount of the
from the check. The civil liability attaching to check–a distinct possibility considering the
the signatory arises from the wrongful act of occasional large-scale transactions engaged
signing the check despite the insufficiency of in by corporations – the corporation would
funds in the account, while the civil liability not be subsidiarily liable to the complainant,
attaching to the corporation is itself the very even if it in truth the controversy, of which
obligation covered by the check or the the criminal case is just a part, is traceable to
consideration for its execution. Yet these civil the original obligation of the corporation.
liabilities are mistaken to be indistinct. The
confusion is traceable to the singularity of While the Revised Penal Code imposes
the amount of each. Gosiaco vs. Ching, 585 subsidiary civil liability to corporations
SCRA 471, April 16, 2009 for criminal acts engaged in by their
employees in the discharge of their
b. The civil action impliedly instituted duties, said subsidiary liability applies
in the Batas Pambansa Blg 22 only to felonies, and not to crimes
action is only the civil liability of the
penalized by special laws such as B.P. Blg.
signatory and not that of the
corporation. 22. And nothing in B.P. Blg. 22 imposes
such subsidiary liability to the
It follows that the actions involving these corporation in whose name the check is
liabilities should be adjudged according to actually issued.
their respective standards and merits. In the
B.P. Blg. 22 case, what the trial court should F. ADMINISTRATIVE CIRCULAR NO. 12-
determine whether or not the signatory had 2000 AND ADMINISTRATIVE CIRCULAR
signed the check with knowledge of the NO. 13-2001
insufficiency of funds or credit in the bank
account, while in the civil case the trial court
61
6.00 WHAT IS ADMINISTRATIVE appropriate penalty to impose on each of
CIRCULAR NO. 12-2000? the petitioners.
It is a circular which refers to the In the recent case of Rosa Lim vs.
imposition of penalties for violation of B.P. People(G. R. No. 130038, 18 September
22. It provides: 2000), the Supreme Court en banc,
applying Vaca also deleted the penalty of
“Section 1 of B.P. Blg. 22 (An Act Penalizing imprisonment and sentenced the drawer
the Making or Drawing and Issuance of a of the bounced check to the maximum of
Check Without Sufficient Funds for Credit the fine allowed by B.P. Blg. 22, i.e.,
and for Other Purposes) imposes the P200,000, and concluded that “such would
penalty of imprisonment of not less than best serve the ends of criminal justice.”
thirty (30) days but not more than one (1)
year or a fine of not less than but not more All courts and judges concerned
than double the amount of the check, should henceforth take note of the
which fine shall in no case exceed foregoing policy of the Supreme Court on
P200,000, or both such fine and the matter of the imposition of penalties
imprisonment at the discretion of the for violations of B.P. Blg. 22.
court.
The Court Administrator shall
In its decision in Eduardo Vaca vs. cause the immediate dissemination of this
Court of Appeals (G.R. No. 131714, 16 Administrative Circular to all courts and
November 1998; 298 SCRA 656, 664) the judges concerned.
Supreme Court (Second Division) per Mr.
Justice V. Mendoza, modified the sentence This Administrative Circular,
imposed for violation of B.P. Blg. 22 by referred to and approved by the Supreme
deleting the penalty of imprisonment and Court en banc, shall take effect upon its
imposing only the penalty of fine in an issuance.
amount double the amount of the check. In Issued this 21st day of November
justification thereof, the Court said: 2000. X x x “
Petitioners are first-time offenders. Court has not discriminalized B.P.
They are Filipino entrepreneurs who 22 violations, nor have removed
presumably contribute to the national imprisonment as an alternative penalty.
economy. Apparently, they brought this
appeal, believing in all good faith, although Since 1998, this Court has held that
mistakenly that they had not committed a it would best serve the ends of criminal
violation of B.P. Blg. 22. Otherwise, they justice if, in fixing the penalty to be
could simply have accepted the judgment of imposed for violation of B.P. 22, the same
the trial court and applied for probation to philosophy underlying the Indeterminate
evade a prison term. It would best serve the Sentence Law be observed, i.e., that of
ends of criminal justice if in fixing the redeeming valuable human material and
penalty within the range of discretion preventing unnecessary deprivation of
allowed by Section 1, par. 1, the same personal liberty and economic usefulness
philosophy underlying the Indeterminate with due regard to the protection of the
Sentence Law is observed, namely, that of social order. This policy was embodied in
redeeming valuable human material and Supreme Court Administrative Circular
preventing unnecessary deprivation of No. 12-2000, authorizing the non-
personal liberty and economic usefulness imposition of the penalty of imprisonment
with due regard to the protection of the in B.P. 22 cases. We also clarified in
social order. In this case, we believe that a Administrative Circular No. 13-2001, as
fine in an amount equal to double the explained in Tan v. Mendez, 383 SCRA 202
amount of the check involved is an (2002), that we are not decriminalizing
62
B.P. 22 violations, nor have we removed preference in the application of the
imprisonment as an alternative penalty. penalties provided for in B.P. Blg. 22.
Needless to say, the determination of
whether the circumstances warrant the The pursuit of this purpose clearly
imposition of a fine alone rests solely upon does not foreclose the possibility of
the judge. Should the judge decide that imprisonment for violations of B.P. Blg. 22.
imprisonment is the more appropriate Neither does it defeat the legislative intent
penalty, Administrative Circular No. 12- behind the law.
2000 ought not to be deemed a hindrance.
Lunaria vs. People, 5701 SCRA 572, Thus, Administrative Circular No.
November 11, 2008. 12-2000 establishes a rule of preference in
the application of the penal provisions of
6.01 ON THE OTHER HAND ,WHAT IS B.P. Blg. 22 such that where the
ADMINISTRATIVE CIRCULAR NO. circumstances of both the offense and the
13-2001? offender clearly indicate good faith or a
clear mistake of fact without taint of
It is a circular addressed to all judges negligence, the imposition of a fine alone
which clarifies Administrative Circular No. should be considered as the more
12-2000 on the penalty for violation of Batas appropriate penalty. Needless to say, the
Pambansa blg. 22. It provides: determination of whether the
circumstances warrant the imposition of a
“Clarification has been sought by fine alone rests solely upon the Judge.
concerned Judges and other parties Should the Judge decide that
regarding the operation of Administrative imprisonment is the more appropriate
Circular 12-2000 issued on 21 November penalty, Administrative Circular No. 12-
2000. In particular, queries have been 2000 ought not be deemed a hindrance.
made regarding the authority of Judges to:
It is, therefore, understood that:
1. Impose the penalty of imprisonment for
violations of Batas Pambansa Blg. 22; and 1. Administrative Circular 12-2000 does
not remove imprisonment as an
2. Impose subsidiary imprisonment in the alternative penalty for violations of B.P.
event that the accused who is found guilty Blg. 22;
of violating the provisions of B.P. Blg. 22, is
unable to pay the fine which he is 2. The Judges concerned may, in the
sentenced to pay considering that exercise of sound discretion, and taking
Administrative Circular No. 12-2000 into consideration the peculiar
adopted the rulings in Eduardo Vaca v. circumstances of each case, determine
Court of Appeals (G.R. No. 131714, 16 whether the imposition of a fine alone
November 1998, 298 SCRA 656) and Rosa would best serve the interests of justice or
Lim v. People of the Philippines (G.R. No. whether forbearing to impose
130038, 18 September 2000) as a policy of imprisonment would depreciate the
the Supreme Court on the matter of the seriousness of the offense, work violence
imposition of penalties for violations of on the social order, or otherwise be
B.P. Blg. 22, without mentioning whether contrary to the imperatives of justice;
subsidiary imprisonment could be
resorted to in case of the accused's 3. Should only a fine be imposed and the
inability to pay the fine. accused be unable to pay the fine, there is
no legal obstacle to the application of the
The clear tenor and intention of Revised Penal Code provisions on
Administrative Circular No. 12-2000 is not subsidiary imprisonment.
to remove imprisonment as an alternative
penalty, but to lay down a rule of
63
The issuance of this Administrative drawer is liable only for violation of
Circular was authorized by the Court En B.P. Blg. 22.
Banc in A.M. No. 00-11-01-SC at its session
5. If the payee (the one receiving the
of 13 February 2001.
payment) is aware of the
insufficiency or lack of fund in the
The Clerk of Court of the Supreme bank to cover the check at the time it
Court and the Court Administrator shall was issued, the drawer may be held
immediately cause the implementation of liable for violation of B. P. Blg. 22.
this Administrative Circular.
6. Even if a bad check is issued as a
This Administrative Circular shall guarantee, Batas 22 is violated.
be published in a newspaper of general
ADDENDUM:
circulation not later than 20 February
2001. Payment even beyond the 5-day period
extinguishes criminal liability.
Issued this 14th day of February, 2001. x x
x“ Although payment of the value of the
bounced check, if made beyond the 5-day
period provided for in B.P. Blg. 22, would
6.02 DOES ADMINISTRATIVE CIRCULAR
normally not extinguish criminal liability, the
N0. 13- 2001 DECRIMINALIZE
aforementioned cases show that the Court
VIOLATIONS OF BP. 22?
acknowledges the existence of extraordinary
cases where, even if all the elements of the
No. The Supreme Court pronounced
crime of offense are present, the conviction
in Lunaria vs. People, 5701 SCRA 572, of the accused would prove to be abhorrent
November 11, 2008, that it has not to society’s sense of justice. Just like in
decriminalized B.P. 22 violations, nor have Griffith and in Tan, petitioner should not be
removed imprisonment as an alternative penalized although all the elements of
penalty. violation of B.P. Blg. 22 are proven to be
present. The fact that the issuer of the check
The Court clarified that the had already paid the value of the dishonored
determination of whether the circumstances check after having received the subpoena
from the Office of the Prosecutor should have
warrant the imposition of a fine alone rests
forestalled the filing of the Information in
solely upon the judge. Should the judge court. The spirit of the law which, for B.P.
decide that imprisonment is the more Blg. 22, is the protection of the credibility and
appropriate penalty, Administrative Circular stability of the banking system, would not be
No. 12-2000 ought not to be deemed a served by penalizing people who have
hindrance. evidently made amends for their mistakes
and made restitution for damages even
G. OTHER POINTS TO CONSIDER before charges have been filed against them.
IN BP. 22 In effect, the payment of the checks before
the filing of the information has already
attained the purpose of the law. (Ariel T. Lim
1. Each act of drawing and issuing a vs People, G.R. No. 190834, November 26,
bouncing check constitutes a 2014, Peralta, J.)
violation of B.P. Blg. 22.
1.08 MUST PURCHASE OF THE STOLEN It shall refer to any goods, article, item,
ARTICLES BE PROVED? object or anything of value obtained from an
66
unlicensed dealer or supplier, regardless of management. People vs.De Gracia, 233 SCRA
whether the same has actually or in fact been 716
used.
Illustrative case
-oooOOOooo-
BAR Q. [2000] A has long been wanted by
the police authorities for various crimes
CHAPTER VIII. ILLEGAL POSSESSION OF committed by him. Acting on an
FIREARM information by a tipster, the police
PD 1866 as amended by R.A. 8294 proceeded to an apartment where A was
often seen. The tipster also warned the
[BAR Q. 2011, 2002, 2000, 1998]
policeman that A was always armed. At
the given address, a lady who introduced
herself as the elder sister of A, opened the
door and let the policeman in. inside the
1.00 WHAT ARE THE ELEMENTS OF THE team found A sleeping on the floor.
CRIME OF ILLEGAL POSSESSION OF Immediately beside him was a clutch bag
FIREARM AND AMMUNITION? which when opened, contained a .38
caliber paltic revolver and a hand
In illegal possession of firearm and
grenade. After verification, the
ammunition, the prosecution has the burden
authorities discovered that A was not a
of proving the twin elements of:
licensed holder of the .38 caliber paltik
(1) the existence of the subject firearm revolver. As for the hand grenade, it was
and ammunition, and established that only military personnel
are authorized to carry hand grenades.
(2) the fact that the accused who Subsequently, A was charged with the
possessed or owned the same does not crime of illegal possession of firearms
have the corresponding license for it. and ammunition. During trial, A
Valeroso vs. People, 546 SCRA 450, maintained that the bag containing the
February 22, 2008 unlicensed firearm and hand grenade
belonged to A, his friend, and that he was
Illustrative case
not in actual possession thereof at the
BAR Q. [2011] X, Y and Z agreed among time he was arrested. Are the allegations
themselves to attack and kill A, a police meritorious? Explain.
officer,but they left their home-made
guns in their vehicle before approaching Suggested Answer: No, A's
him. What crime have they committed? allegation that he does not own the firearm is
of no significance. It is a settled rule that
A. Conspiracy to commit indirect ownership is not an essential element in the
assault. crime of illegal possession.
B. Attempted direct assault.
C. Conspiracy to commit direct Further, his defense that he was not in
assault.
possession of the same at that time he was
D. Illegal possession of firearms.
arrested has no leg to stand on. Possession
1.01 IS OWNERSHIP AN ELEMENT OF THIS includes not only actual physical possession
CRIME? but also constructive possession where the
firearm and explosives are subject to one's
No. Ownership is not an essential control and management. As long as intent to
element of illegal possession of firearm. possess is proved, A can be held liable.
What the law requires is merely possession
which includes not only physical possession 1.02 EXPLAIN THE CONCEPT OF
but also constructive possession or the POSSESSION.
subjection of the thing to one’s control and
67
The kind of possession punishable was made in good faith and without criminal
under PD 1866 is one where the accused intent. Elenita C. Fajardo vs. People, G.R. No.
possessed a firearm either physically or 190889, January 10, 2011
constructively with animus possidendi or
1.04 ASIDE FROM A FIREARM WITHOUT A
intention to possess. It is not enough that the
LICENSE, WHAT DOES UNLICENSED
firearm was found in the possession of the FIREARM INCLUDE?
accused who held the same temporarily and
casually or for the purpose of surrendering The term unlicensed firearm shall
the same. People vs. Dela Rosa, 90 SCAD 143 include:
69
becomes merely an aggravating “The possession of any machinery,
circumstance, not a separate offense. tool or instrument used directly in the
manufacture of firearms or ammunition,
BAR Q. [2009] TRUE or FALSE. Answer by any person whose business or
TRUE if the statement is true, or FALSE if employment does not lawfully deal with
the statement is false. Explain your the manufacture of firearms or
answer in not more than two (2) ammunition, shall be prima facie evidence
sentences. that such article is intended to be used in
the unlawful/illegal manufacture of
firearms or ammunition.”
The use of an unlicensed firearm in
homicide is considered a generic
aggravating circumstance which can be 1.13 WHEN IS THE USE OF EXPLOSIVES,
offset by an ordinary mitigating DETONATION AGENTS OR
circumstance. INCENDIARY DEVICES CONSIDERED
AS AN AGGRAVATING
CIRCUMSTANCE? (SEC.3)
Suggested Answer: No, the use of an
unlicensed firearm in murder or homicide
constitutes as a special aggravating When a person commits any of the
circumstance which may not be offset by an crimes defined in the Revised Penal Code or
ordinary mitigating circumstances. (People special laws with the use of the explosives
vs. Palaganas, G.R. No. 165483; People vs. (mentioned in Sec.3), detonation agents or
Castillo, G.R.No. 131592-93, February 15, incendiary devices, which results in the
2000). death of any person or persons, the use of
such explosives, detonation agents or
incendiary devices shall be considered as an
However, in People vs. Dela Cruz,
aggravating circumstance.
December 2000, the Supreme Court ruled that
the aggravating circumstance of the use of
firearm is effectively offset by the mitigating 1.14 EXPLAIN PRESUMPTION OF
circumstance of voluntary surrender. UNLAWFUL MANUFACTURE (SEC.4).
-If the crime committed with the use of 1.01 DEFINE “SUSPICIOUS
TRANSACTIONS”.
loose firearm is penalized by the law
with a maximum penalty which is equal They are transactions with covered
to that imposed under Sec. 28 of R.A. No. institutions, regardless of the amounts
10591, the penalty of prision mayor in its involved, where any of the following
minimum period shall be imposed in circumstances exist:
addition to the penalty for the crime
punishable under the Revised Penal Code 1. there is no underlying legal or
or other special laws of which he/she is trade obligation, purpose or
economic justification;
found guilty.
2. the client is not properly identified;
-oooOOOooo-
3. the amount involved is not
commensurate with the business or
financial capacity of the client;
CHAPTER IX
ANTI- MONEY LAUNDERING ACT OF 2001 4. taking into account all known
circumstances, it may be perceived
R.A. No. 9160 as amended that the client's transaction is
by R.A. 9194, R.A. 10167, R.A. 10168 and structured in order to avoid being the
R.A. 10365, also known as An Act Further subject of reporting requirements
Strengthening under the Act;
The Anti-Money Laundering Law
5. any circumstances relating to the
[BAR 2010, 2009, 2005] transaction which is observed to
___________________________________________________ deviate from the profile of the client
1.00 WHAT DOES THE TERM "COVERED and/or the client's past transactions
INSTITUTION" REFER TO? with the covered institution;
1.05 ARE LAWYERS AND ACCOUNTANTS (10) Smuggling under Republic Act Nos.
REQUIRED TO REPORT COVERED 455 and 1937;
AND SUSPICIOUS TRANSACTIONS?
(11) Violations of Republic Act No. 8792,
Lawyers and accountants acting as otherwise known as the Electronic
independent legal professionals are not Commerce Act of 2000;
required to report covered and suspicious
transactions if the relevant information was (12) Hijacking and other violations under
obtained in circumstances where they are Republic Act No. 6235; destructive arson
subject to professional secrecy or legal and murder, as defined under the Revised
Penal Code, as amended;
professional privilege.
(13) Terrorism and conspiracy to commit
1.06 AS AMENDED BY RA 10365, WHAT
terrorism as defined and penalized under
DOES “UNLAWFUL ACTIVITY” REFER
Sections 3 and 4 of Republic Act No. 9372;
TO?
(14) Financing of terrorism under Section
As amended by R.A. 10365,
4 and offenses punishable under Sections
“Unlawful activity” refers to any act or 5, 6, 7 and 8 of Republic Act No. 10168,
omission or series or combination thereof otherwise known as the Terrorism
involving or having direct relation to the Financing Prevention and Suppression Act
following: of 2012:
72
(15) Bribery under Articles 210, 211 and (27) Violation of Presidential Decree No.
211-A of the Revised Penal Code, as 1612, otherwise known as the Anti-
amended, and Corruption of Public Fencing Law;
Officers under Article 212 of the Revised
Penal Code, as amended; (28) Violation of Section 6 of Republic Act
No. 8042, otherwise known as the
(16) Frauds and Illegal Exactions and Migrant Workers and Overseas Filipinos
Transactions under Articles 213, 214, 215 Act of 1995, as amended by Republic Act
and 216 of the Revised Penal Code, as No. 10022;
amended;
(29) Violation of Republic Act No. 8293,
(17) Malversation of Public Funds and otherwise known as the Intellectual
Property under Articles 217 and 222 of the Property Code of the Philippines;
Revised Penal Code, as amended;
(30) Violation of Section 4 of Republic Act
(18) Forgeries and Counterfeiting under No. 9995, otherwise known as the Anti-
Articles 163, 166, 167, 168, 169 and 176 of Photo and Video Voyeurism Act of 2009;
the Revised Penal Code, as amended;
(31) Violation of Section 4 of Republic Act
(19) Violations of Sections 4 to 6 of No. 9775, otherwise known as the Anti-
Republic Act No. 9208, otherwise known as Child Pornography Act of 2009;
the Anti-Trafficking in Persons Act of
2003; (32) Violations of Sections 5, 7, 8, 9, 10(c),
(d) and (e), 11, 12 and 14 of Republic Act
(20) Violations of Sections 78 to 79 of No. 7610, otherwise known as the Special
Chapter IV, of Presidential Decree No. 705, Protection of Children Against Abuse,
otherwise known as the Revised Forestry Exploitation and Discrimination;
Code of the Philippines, as amended;
(21) Violations of Sections 86 to 106 of (33) Fraudulent practices and other
Chapter VI, of Republic Act No. 8550, violations under Republic Act No. 8799,
otherwise known as the Philippine otherwise known as the Securities
Fisheries Code of 1998; Regulation Code of 2000; and
(22) Violations of Sections 101 to 107, and (34) Felonies or offenses of a similar
110 of Republic Act No. 7942, otherwise nature that are punishable under the
known as the Philippine Mining Act of penal laws of other countries.”
1995;
1.07 BAR Q. [2010] DEFINE MONEY
(23) Violations of Section 27(c), (e), (f), (g) LAUNDERING. (Sec. 4)
and (i), of Republic Act No. 9147, otherwise
known as the Wildlife Resources Section 4 defines money laundering
Conservation and Protection Act; as:
(24) Violation of Section 7(b) of Republic “It is a crime whereby the proceeds of an
Act No. 9072, otherwise known as the unlawful activity as herein defined are
National Caves and Cave Resources transacted, thereby making them appear
Management Protection Act; to have originated from legitimate
sources.”
(25) Violation of Republic Act No. 6539,
otherwise known as the Anti-Carnapping 1.08 AS AMENDED BY RA 10365, HOW IS
Act of 2002, as amended;
THE MONEY LAUNDERING
OFFENSE COMMITTED UNDER
(26) Violations of Sections 1, 3 and 5 of
Presidential Decree No. 1866, as amended, SEC.4?
otherwise known as the decree Codifying
the Laws on Illegal/Unlawful Possession, Section 4 provides the ways by which
Manufacture, Dealing In, Acquisition or money laundering is committed. R.A. 10365
Disposition of Firearms, Ammunition or reads as follows:
Explosives;
73
“Money laundering is committed proceeds from, or
by any person who, knowing that any instrumentalities used in or
monetary instrument or property intended for use in any unlawful
represents, involves, or relates to the activity as defined in Section 3(i)
proceeds of any unlawful activity: hereof;
(f) performs or fails to perform any act as (a) Any person may be charged with
a result of which he facilitates the offense and convicted of both the offense of
of money laundering referred to in money laundering and the unlawful
paragraphs (a), (b) or (c) above.” activity as herein defined.
1.04 IS MERE CONSPIRACY TO COMMIT 1.07 WHO ARE EXEMPTED FROM BEING
TERRORISM A CRIME? AN ACCESSORY?
“The provisions of Article 125 of the Yes, the acquittal of the accused shall
Revised Penal Code to the contrary be a bar to another prosecution for any
notwithstanding, any police or law offense or felony which is necessarily
enforcement personnel, who, having been included in the offense charged. Section 49
duly authorized in writing by the Anti- states:
Terrorism Council has taken custody of a
person charged with or suspected of the “When a person has been
crime of terrorism or the crime of prosecuted under a provision of this Act,
conspiracy to commit terrorism shall, upon a valid complaint or information or
without incurring any criminal liability other formal charge sufficient in form and
for delay in the delivery of detained substance to sustain a conviction and
persons to the proper judicial authorities, after the accused had pleaded to the
deliver said charged or suspected person charge, the acquittal of the accused or the
to the proper judicial authority within a dismissal of the case shall be a bar to
period of three days counted from the another prosecution for any offense or
moment the said charged or suspected felony which is necessarily included in the
person has been apprehended or arrested, offense charged under this Act.”
detained, and taken into custody by the
said police, or law enforcement personnel: 1.13 IS THE ACCUSED ENTITLED TO
Provided, That the arrest of those DAMAGES FOR UNPROVEN CHARGE
suspected of the crime of terrorism or OF TERRORISM? (Section 50)
conspiracy to commit terrorism must
result from the surveillance under Section Yes, R.A. 9372 provides that upon
7 and examination of bank deposits under acquittal, any person who is accused of
Section 27 of this Act. terrorism shall be entitled to the payment of
damages in the amount of Five hundred
1.10 WHAT IS THE CONSEQUENCE FOR thousand pesos (P500,000.00) for every day
FAILURE TO DELIVER SUSPECT TO that he or she has been detained or deprived
THE PROPER JUDICIAL AUTHORITY of liberty or arrested without a warrant as a
WITHIN THREE DAYS? (Section 20) result of such an accusation.
Yes, Section 52 explicitly provides (4) to individual persons who commit any
that the provisions of Book I of the Revised of said crimes within any embassy,
Penal Code shall be applicable to this Act. consulate, or diplomatic premises
belonging to or occupied by the Philippine
1.15 DOES R.A. 9372 ALLOW government in an official capacity;
EXTRAORDINARY RENDITION?
(Section 57) (5) to individual persons who, although
physically outside the territorial limits of
No, there is a ban on extraordinary the Philippines, commit said crimes
rendition. No person suspected or convicted against Philippine citizens or persons of
of the crime of terrorism shall be subjected Philippines descent, where their
to extraordinary rendition to any country citizenship or ethnicity was a factor in the
unless his or her testimony is needed for commission of the crime; and
terrorist related police investigations or
judicial trials in the said country and unless (6) to individual persons who, although
his or her human rights, including the right physically outside the territorial limits of
against torture, and right to counsel, are the Philippines, commit said crimes
officially assured by the requesting country directly against the Philippine
and transmitted accordingly and approved government.”
by the Department of Justice.
-oooOOOooo-
1.16 CAN AN INDIVIDUAL PERSON,
ALTHOUGH PHYSICALLY OUTSIDE
THE TERRITORIAL LIMITS OF THE
PHILIPPINES BE HELD CRIMINALLY CHAPTER II
LIABLE FOR ACTS OF TERRORISM?
THE ANTI-CHILD ABUSE LAW
Yes, the law has extra-territorial Republic Act No. 7610
application. Section 58 constitute as an ___________________________________________________
exception to the territoriality rule. It
provides: 1.00 DEFINE CHILDREN UNDER THIS ACT.
(Section 3)
“Extra-Territorial Application of
this Act. - Subject to the provision of an "Children" refers to person below
existing treaty of which the Philippines is eighteen (18) years of age or those over but
a signatory and to any contrary provision are unable to fully take care of themselves or
of any law of preferential application, the protect themselves from abuse, neglect,
provisions of this Act shall apply: cruelty, exploitation or discrimination
because of a physical or mental disability or
(1) to individual persons who commit any condition.
of the crimes defined and punished in this
Act within the terrestrial domain, interior 1.01 WHAT IS THE DEFINITION OF A
waters, maritime zone, and airspace of the “CHILD” UNDER THE
Philippines;
IMPLEMENTING RULES OF THIS
LAW?
(2) to individual persons who, although
physically outside the territorial limits of
A mere allegation that the children
the Philippines, commit, conspire or plot
to commit any of the crimes defined and are unable to fully take care of themselves or
protect themselves from abuse, neglect,
81
cruelty, exploitation or discrimination money or profit. The law covers not only
because of a physical or mental disability or child prostitution but also other forms of
condition is not sufficient. sexual abuse.
2.01 WHAT ACTS ARE PUNISHED 2.03 WHAT ARE THE ELEMENTS OF
UNDER SECTION 5(A) OF PARAGRAPH 5 (a) of RA 7610?
ARTICLE III, CHILD
PROSTITUTION AND OTHER The elements of paragraph 5 (a) of R.A.
SEXUAL ABUSE UNDER R.A. 7610 are the following:
7610?
1. the accused engages in, promotes,
Section 5 (a) of Article III provides: facilitates or induces child prostitution;
“The penalty of reclusion temporal 2. the act is done through, but not limited
in its medium period to reclusion perpetua to, the following means:
shall be imposed upon the following:
a. acting as a procurer of a child
(a) Those who engage in or promote, prostitute;
facilitate or induce child prostitution
which include, but are not limited to, the b. inducing a person to be a client of
following: a child prostitute by means of written
or oral advertisements or other
(1) Acting as a procurer of a child
similar means;
prostitute;
c. taking advantage of influence or
(2) Inducing a person to be a client
relationship to procure a child as a
of a child prostitute by means of written or
oral advertisements or other similar prostitute;
means;
83
d. threatening or using violence 2.06 THE LAW USES THE TERM A CHILD
towards a child to engage him as a “SUBJECT TO SEXUAL ABUSE”. WHEN
prostitute; or IS A CHILD DEEMED SUBJECTED TO
“OTHER SEXUAL ABUSE”?
e. giving monetary consideration,
goods or other pecuniary benefit to a 1. A child is deemed subjected to
child with intent to engage such child other sexual abuse when the child
in prostitution; indulges in lascivious conduct
under the coercion or influence of
3. the child is exploited or intended to be any adult. R.A. 7610 covers not
exploited in prostitution; and only child prostitution but also
4. the child, whether male or female, is other forms of sexual abuse.
below 18 years of age. People vs. Dulay, Olivarez vs. Court of Appeals, 465
681 SCRA 638(2012) SCRA 465(2005)
85
No. 7610, “persuasion, inducement, INSTEAD OF VIOLATION OF SECTION
enticement or coercion” of the child must 5 (B) OF RA 7610?
be present.”
The answer is in the affirmative. The
In the case at bar, even if the accused special circumstance that the child is
were charged under Section 5(b), instead of “subjected to other sexual abuse” is not an
Section 10(a), he would just the same have element in the crime of acts of lasciviousness
been acquitted as there was no allegation under Article 336 of the Revised Penal Code.
that an element of the offense – coercion or
influence or intimidation – attended its In Olivarez vs. Court of Appeals, 465
commission. SCRA 465(2005), since the Information failed
to allege the second essential element of the
2.11 CAN A PERSON BE CHARGED OF crime as defined in Section 5 of RA 7610,
COMMITTING AN ACT PUNISHED accused Olivarez cannot be convicted for
UNDER SECTION 5(B) AND RAPE AT violation of RA 7610. The Information is void
THE SAME TIME? to charge Olivarez for violation of Section 5
of RA 7610. Otherwise, Olivarez’s would be
Under Section 5(b), Article III of deprived of his constitutional right to be
Republic Act (RA) 7610 in relation to RA 8353, informed of the charge against him.
if the victim of sexual abuse is below 12 years However, the Information is sufficient to
of age, the offender should not be prosecuted charge Olivarez for violation of Article 336 of
for sexual abuse but for statutory rape under the RPC. The special circumstance that the
Article 266-A(1)(d) of the Revised Penal Code child is “subjected to other sexual abuse” is
and penalized with reclusion perpetua. not an element in the crime of acts of
On the other hand, if the victim is 12 lasciviousness under Article 336 of the RPC.
years or older, the offender should be charged Thus, the Information remains valid to
with either sexual abuse under Section 5(b) of charge Olivarez with acts of lasciviousness,
RA 7610 or rape under Article 266-A (except not under Section 5 of RA 7610, but under
paragraph 1[d]) of the Revised Penal Code. Article 336 of the RPC.
However, the offender cannot be accused of
2.14 WHAT ACTS ARE PUNISHED UNDER
both crimes for the same act because his
SECTION 5 (C) OF R.A. 7610?
right against double jeopardy will be
prejudiced. A person cannot be subjected Section 5 (c) of Article III of R.A.
twice to criminal liability for a single criminal 7610 punishes:
act. People vs. Abay, 580 SCRA 235(2009)
“Those who derive profit or
2.12 CAN RAPE INSTEAD BE COMPLEXED advantage therefrom, whether as
WITH A VIOLATION OF SECTION 5 manager or owner of the establishment
(B) OF RA 7610? where the prostitution takes place, or of
the sauna, disco, bar, resort, place of
The answer is in the entertainment or establishment serving
negative. Likewise, rape cannot be as a cover or which engages in
complexed with a violation of Section 5(b) of prostitution in addition to the activity for
which the license has been issued to said
RA 7610. Under Section 48 of the Revised
establishment.”
Penal Code (on complex crimes), a felony
under the Revised Penal Code (such as rape) 3.00 WHEN IS THERE AN ATTEMPT TO
cannot be complexed with an offense COMMIT CHILD PROSTITUTION?
penalized by a special law. People v. Abay 580 (Section 6)
SCRA 235, February 24, 2009
R.A. 7610 Section 6 on Attempt To
2.13 CAN AN ACCUSED BE CONVICTED OF Commit Child Prostitution provides:
ACTS OF LASCIVIOUSNESS PUNISH
UNDER THE REVISED PENAL CODE “There is an attempt to commit
child prostitution under Section 5,
86
paragraph (a) hereof when any person 3.02 WHAT ACTS FALL UNDER THE TERM
who, not being a relative of a child, is “ANY OTHER ACTS OF CHILD ABUSE”?
found alone with the said child inside the
room or cubicle of a house, an inn, hotel, "Acts of child abuse" under Section
motel, pension house, apartelle or other 10 (a) of R.A. 7610 refers to those acts listed
similar establishments, vessel, vehicle or under Sec. 3 (b) of R.A. 7610, which reads as
any other hidden or secluded area under follows:
circumstances which would lead a
reasonable person to believe that the child Sec. 3. Definition of Terms –
is about to be exploited in prostitution and
other sexual abuse. (a) x x x
3.04 MUST THE PROSECUTION NEED TO 3.06 ARE THE RULES OF OFFSETTING THE
PROVE THAT THE ACTS OF CHILD MODIFYING CIRCUMSTANCES
ABUSE, CHILD CRUELTY AND CHILD APPLICABLE IN R.A. 7610, IT BEING
EXPLOITATION HAVE RESULTED IN A SPECIAL LAW?
THE PREJUDICE OF THE CHILD’S
DEVELOPMENT? Notwithstanding that R.A. 7610 is a
special law, appellant may enjoy the benefits
No. The prosecution need not prove of the Indeterminate Sentence Law. Since the
that the acts of child abuse, child cruelty and penalty provided in R.A. 7610 is taken from
child exploitation have resulted in the the range of penalties in the Revised Penal
prejudice of the child because an act Code, it is covered by the first clause of
prejudicial to the development of the child is Section 1 of the Indeterminate Sentence Law.
different from the former acts.
Anent the penalty, for violation of the
The Rules and Regulations of the provisions of Section 5, Article III of R.A.
questioned statute distinctly and separately 7610, the penalty prescribed is reclusion
defined child abuse, cruelty and exploitation temporal in its medium period to reclusion
just to show that these three acts are perpetua. Therefore, in the absence of any
different from one another and from the act mitigating or aggravating circumstance, the
prejudicial to the child’s development. proper imposable penalty is reclusion
Contrary to petitioner’s assertion, an temporal in its maximum period, the
accused can be prosecuted and be convicted medium of the penalty prescribed by the law.
under Section 10(a), Article VI of Republic People vs. Dulay, 681 SCRA 638(2012)
Act No. 7610 if he commits any of the four
acts therein. Araneta v. People 556 SCRA 323, ADDENDUM:
June 27, 2008 1. Elements of sexual abuse.
3.05 IS “SEXUAL ABUSE” DEFINED UNDER
In People v. Espinoza, it was held that
SECTION 5 OF R.A. NO. 7610 THE
healed lacerations do not negate rape. In fact,
88
lacerations, whether healed or fresh, are the penalties therefore. The act is known as the
best physical evidence of forcible defloration. "Anti-Torture Act of 2009".
x x x Moreover, in the present case, Dr.Orais 1.01 DEFINE "TORTURE".
clarified to the court that even if the alleged
sexual assault took place in the year 2005 or It refers to an act by which severe
a year after AAA was examined, the old pain or suffering, whether physical or
healed lacerations could still be found. mental, is intentionally inflicted on a person
(People vs. Sanico, G.R. No. 208469, August for such purposes as obtaining from him/her
13, 2014, Reyes, J.) or a third person information or a
confession; punishing him/her for an act
2. Higher penalty when victim is a child. he/she or a third person has committed or is
suspected of having committed; or
The slightest penetration into one’s intimidating or coercing him/her or a third
sexual organ distinguishes an act of person; or for any reason based on
lasciviousness from the crime of discrimination of any kind, when such pain
rape. People v. Bonaagua discussed this or suffering is inflicted by or at the
distinction: It must be emphasized, however, instigation of or with the consent or
that like in the crime of rape whereby the acquiescence of a person in authority or
slightest penetration of the male organ or agent of a person in authority. It does not
even its slightest contact with the outer lip or include pain or Buffering arising only from,
the labia majora of the vagina already inherent in or incidental to lawful sanctions.
consummates the crime, in like manner, if the (*same definition under IRR)
tongue, in an act of cunnilingus, touches the
outer lip of the vagina, the act should also be 1.02 WHAT DOES THE TERM "OTHER
considered as already consummating the CRUEL, INHUMAN AND DEGRADING
crime of rape through sexual assault, not the TREATMENT OR PUNISHMENT"
crime of acts of MEAN?
lasciviousness. Notwithstanding, in the
present case, such logical interpretation It refers to a deliberate and
could not be applied. It must be pointed out aggravated treatment or punishment not
that the victim testified that Ireno only enumerated under Section 4 (Acts of torture)
touched her private part and licked it, but did of this Act, inflicted by a person in authority
not insert his finger in her vagina. This or agent of a person in authority against a
testimony of the victim, however, is open to person under his/her custody, which attains
various interpretation, since it cannot be a level of severity causing suffering, gross
identified what specific part of the vagina humiliation or debasement to the latter.
was defiled by Ireno. Thus, in conformity
with the principle that the guilt of an accused 1.03 ENUMERATE THE ACTS OF TORTURE
must be proven beyond reasonable doubt, PROVIDED UNDER SECTION 4.
the statement cannot be the basis for
convicting Ireno with the crime of rape For purposes of this Act, torture shall
through sexual assault. include, but not be limited to, the following:
92
prescription period shall not apply to torture
cases. It is not necessary that the demand,
request, or requirement of a sexual favor be
1.17 IS THE REVISED PENAL CODE articulated in a categorical oral or written
APPLICABLE IN THIS ACT? statement. It may be discerned, with equal
certitude, from the acts of the offender.
Yes, Section 22 clearly provides for
the applicability of the Revised Penal Code. It 2. Ma. Lourdes T. Domingo vs.
states that the provisions of the Revised Rogelio R. Rayala
Penal Code insofar as they are applicable G.R. No. 155831 February 18, 2008
shall be suppletory to this Act.
Doctrine:
It is committed by an employer,
employee, manager, supervisor, agent of the
CHAPTER V. THE ANTI-TRAFFICKING IN
employer, teacher, instructor, professor,
PERSONS ACT OF 2003
coach, trainor, or any other person who,
Republic Act No. 9208
having authority, influence or moral
___________________________________________________
ascendancy over another in a work or
training or education environment,
demands, requests or otherwise requires 1.00 DEFINE TRAFFICKING IN PERSONS.
any sexual favor from the other, regardless of
whether the demand, request or Trafficking in Persons refers to the
requirement for submission is accepted by recruitment, transportation, transfer or
the object of said act (Sec.3). harboring, or receipt of persons with or
without the victim's consent or knowledge,
1.01 WHO ELSE MAY BE LIABLE? within or across national borders by means
of threat or use of force, or other forms of
coercion, abduction, fraud, deception, abuse
Any person who directs or induces
of power or of position, taking advantage of
another to commit any act of sexual
the vulnerability of the person, or, the giving
harassment as herein defined, or who
or receiving of payments or benefits to
cooperates in the commission thereof by
achieve the consent of a person having
another without which it would not have
control over another person for the purpose
been committed, shall also be held liable
of exploitation which includes at a minimum,
under this Act (Sec.3).
the exploitation or the prostitution of others
or other forms of sexual exploitation, forced
labor or services, slavery, servitude or the
removal or sale of organs.
JURISPRUDENTIAL DOCTRINES
The recruitment, transportation,
1. Dioscoro F. Bacsin vs. Eduardo O. transfer, harboring or receipt of a child for
Wahiman the purpose of exploitation shall also be
G.R. No. 146053 April 30, 2008 considered as "trafficking in persons" even if
it does not involve any of the means set forth
Doctrine: in the preceding paragraph.
93
1.01 DEFINE A CHILD UNDER THIS ACT. 1.06 BAR Q. [2012] When the adoption of
a child is effected under the Inter-
A child refers to a person below Country Adoption Act for the
eighteen (18) years of age or one who is over purpose of prostitution, what is the
eighteen (18) but is unable to fully take care
proper charge against the offender
of or protect himself/herself from abuse,
neglect, cruelty, exploitation, or who is a public officer in relation to
discrimination because of a physical or the exploitative purpose?
mental disability or condition.
a. acts that promote trafficking in persons;
1.02 WHAT IS PROSTITUTION? b. trafficking in persons;
c. qualified trafficking in persons;
Prostitution refers to any act, d. use of trafficked person.
transaction, scheme or design involving the
use of a person by another, for sexual (c) When the crime is committed by a
intercourse or lascivious conduct in syndicate, or in large scale-
exchange for money, profit or any other
consideration. c.1 When is Trafficking deemed
committed by a syndicate?
1.03 WHAT IS FORCED LABOR AND
SLAVERY? If it carried out by a group of three
(3) or more persons conspiring or
They refer to the extraction of work confederating with one another.
or services from any person by means of
enticement, violence, intimidation or threat, c.2 When is Trafficking deemed
use of force or coercion, including committed in large scale?
deprivation of freedom, abuse of authority or
moral ascendancy, debt-bondage or If it committed against three (3) or
deception. more persons, individually or as a
group.
1.04 DEFINE SEXUAL EXPLOITATION.
(d) When the offender is an
It refers to participation by a person in ascendant, parent, sibling, guardian or a
prostitution or the production of person who exercises authority over the
pornographic materials as a result of being trafficked person or when the offense is
subjected to a threat, deception, coercion, committed by a public officer or employee;
abduction, force, abuse of authority, debt
bondage, fraud or through abuse of a victim's (e) When the trafficked person is
vulnerability. recruited to engage in prostitution with any
member of the military or law enforcement
1.05 WHAT ACTS CONSTITUTE agencies;
“QUALIFIED TRAFFICKING”?
(f) When the offender is a member of
The following are considered as qualified the military or law enforcement agencies;
trafficking: and
94
Yes. Any person who buys or engages (P50,000,000.00) shall be guilty of the
the services of trafficked persons for crime of plunder and shall be punished by
prostitution shall be penalized (Sec.11). reclusion perpetua to death.
1.08 WHAT IS THE PRESCRIPTIVE PERIOD Any person who participated with
IN TRAFFICKING CASES? the said public officer in the commission of
an offense contributing to the crime of
Trafficking cases under this Act shall plunder shall likewise be punished for
prescribe in ten (10) years: Provided, such offense. In the imposition of
however, That trafficking cases committed by penalties, the degree of participation and
a syndicate or in a large scale shall prescribe the attendance of mitigating and
in twenty (20) years.(Sec.12) extenuating circumstances, as provided
by the Revised Penal Code, shall be
1.09 BAR Q.[2012] Conspiracy to commit considered by the court. The court shall
felony is punishable only in cases in declare any and all ill-gotten wealth and
which the law specifically provides their interests and other incomes and
a penalty therefor. Under which of assets including the properties and shares
the following instances are the of stocks derived from the deposit or
conspirators not liable? investment thereof forfeited in favor of the
State”.
a. Conspiracy to commit arson.
b. Conspiracy to commit terrorism. 1.01 STATE THE RULE OF EVIDENCE FOR
c. Conspiracy to commit child PURPOSES OF ESTABLISHING THE
pornography. CRIME OF PLUNDER.
d. Conspiracy to commit trafficking
in persons. Section 4 of R.A. 7080 provides:
1.03 WHAT IS THE JUVENILE JUSTICE AND 1.07 WHAT IS THE MEANING OF THE
WELFARE SYSTEM? TERM “ACTED WITH
DISCERNMENT”?
It refers to a system dealing with
children at risk and children in conflict with Sec. 6 of Republic Act No. 9344
the law, which provides child-appropriate exempts a child above fifteen (15) years but
proceedings, including programs and below eighteen (18) years of age from
services for prevention, diversion,
criminal liability, unless the child is found to
rehabilitation, re-integration and aftercare
have acted with discernment, in which case,
to ensure their normal growth and “the appropriate proceedings” in accordance
development. with the Act shall be observed.
1.04 DEFINE RESTORATIVE JUSTICE. “Discernment” is that mental
capacity of a minor to fully appreciate the
It refers to a principle which requires consequences of his unlawful act. Such
a process of resolving conflicts with the capacity may be known and should be
maximum involvement of the victim, the determined by taking into consideration all
offender and the community. It seeks to the facts and circumstances afforded by the
obtain reparation for the victim;
100
records in each case. The surrounding b) baptismal certificate or
circumstances must demonstrate that the c) any other pertinent documents.
minor knew what he was doing and that it
was wrong. Such circumstance includes the 1.11 IN THE ABSENCE OF THESE
gruesome nature of the crime and the DOCUMENTS, WHERE MAY THE
minor’s cunning and shrewdness. AGE BE BASED UPON?
In People vs. Jacinto, G.R. No. 182239, In the absence of these documents,
March 16, 2011, the Supreme Court agreed age may be based on:
with the Court of Appeals that: “(1) choosing
an isolated and dark place to perpetrate the d) information from the child
crime, to prevent detection[;] and (2) boxing himself, testimonies of other
the victim x x x, to weaken her defense” are persons,
indicative of then seventeen (17) year-old e) the physical appearance of the
appellant’s mental capacity to fully child and other relevant
understand the consequences of his unlawful evidence.
action.
1.12 IN CASE OF DOUBT, HOW MUST THE
Discernment is again shown in the AGE BE RESOLVED?
case of Robert Remiendo vs. People, G.R. No.
184874, 09 October 2009. Since the accused is In case of doubt as to the age of the
above fifteen (15) and below eighteen (18), child, it shall be resolved in his favor.
the finding of discernment is necessary to
determine if he would be exempted from 1.13 WHAT IS THE PROCEDURE IF A
criminal liability. In this case, his act of
PERSON CONTESTS THE AGE OF THE
waiting for the victim’s parents to leave the
house before defiling the latter and CHILD? (Sec.7)
threatening to kick her if she should shout
Any person contesting the age of the
prove that petitioner can differentiate what
is right and wrong. child in conflict with the law prior to the
filing of the information in any appropriate
1.08 WHO IS ENTITLED TO THE court may file a case in a summary
PRESUMPTION OF MINORITY? proceeding for the determination of age
before the Family Court which shall decide
The child in conflict with the law shall the case within twenty-four (24) hours from
enjoy the presumption of minority. He shall receipt of the appropriate pleadings of all
enjoy all the rights of a child in conflict with interested parties.
the law until he is proven to be eighteen (18)
years old or older. If a case has been fiied against the
child in conflict with the law and is pending
1.09 BAR Q. [2011] A child in conflict in the appropriate court, the person shall file
with the law shall enjoy all the
a motion to determine the age of the child in
rights of a child until-
the same court where the case is pending.
A. he is found to have acted with Pending hearing on the said motion,
discernment. proceedings on the main case shall be
B. his minority is set off by some suspended.
aggravating circumstance.
C. he is proved to be 18 years or older. In all proceedings, law enforcement
D. he forfeits such rights by gross officers, prosecutors, judges and other
misconduct and immorality. government officials concerned shall exert
all efforts at determining the age of the child
1.10 HOW IS THE AGE OF A CHILD
in conflict with the law.
DETERMINED UNDER THIS ACT?
The age of a child may be determined 1.14 HOW MUST THE PROVISONS OF THIS
from the: LAW BE CONSTRUED?
2.00 WHEN IS A CONTRACT OF DIVERSION (b) when the child, his/her parents
PROPER? (Sec. 26) or guardian does not agree to
diversion as specified in Sections 27
If during the conferencing, and 28; and
mediation or conciliation, the child
voluntarily admits the commission of the act, (c) when considering the
a diversion program shall be developed assessment and recommendation of
when appropriate and desirable as the social worker, the prosecutor
determined under Section 30. Such determines that diversion is not
admission shall not be used against the child appropriate for the child in conflict
in any subsequent judicial, quasi-judicial or with the law.
administrative proceedings.
Upon serving the subpoena and the
The diversion program shall be affidavit of complaint, the prosecutor shall
effective and binding if accepted by the notify the Public Attorney's Office of such
parties concerned. The acceptance shall be in service, as well as the personal information,
writing and signed by the parties concerned and place of detention of the child in conflict
and the appropriate authorities. The local with the law.
social welfare and development officer shall
supervise the implementation of the Upon determination of probable
diversion program. The diversion cause by the prosecutor, the information
proceedings shall be completed within forty- against the child shall be filed before the
five (45) days. The period of prescription of Family Court within forty-five (45) days from
the offense shall be suspended until the the start of the preliminary investigation.
completion of the diversion proceedings but
not to exceed forty-five (45) days. COURT PROCEEDINGS
Yes, the law provides that where a Upon suspension of sentence and
child is detained, the court shall order: after considering the various
circumstances of the child, the court shall
(a) the release of the minor impose the appropriate disposition
on recognizance to his/her measures as provided in the Supreme
parents and other suitable Court Rule on Juveniles in Conflict with the
person; Law.”
(b) the release of the child in 4.04 WHEN MAY THE CHILD IN CONFLICT
conflict with the law on bail; WITH THE LAW BE RETURNED TO
or THE COURT? (Sec. 40)
104
appropriate disposition under Section 51 of Yes. The child in conflict with the law
shall be credited in the services of his/her
RA No. 9344, which provides for the
sentence with the full time spent in actual
confinement of convicted children as commitment and detention under this Act.
follows:
4.09 MAY THE CHILD IN CONFLICT OF THE
LAW BE INSTEAD PLACED ON
“SEC. 51. Confinement of Convicted PROBATION AS AN ALTERNATIVE
Children in Agricultural Camps and other TO IMPRISONMENT? (Sec.42)
Training Facilities.—A child in conflict with
the law may, after conviction and upon order Yes. Section 42 is explicit:
of the court, be made to serve his/her
sentence, in lieu of confinement in a regular
“The court may, after it shall have
penal institution, in an agricultural camp and
convicted and sentenced a child in conflict
other training facilities that may be
with the law, and upon application at any
established, maintained, supervised and
time, place the child on probation in lieu of
controlled by the BUCOR, in coordination with
service of his/her sentence taking into
the DSWD.”
account the best interest of the child. For
this purpose, Section 4 of Presidential
4.06 BAR Q. [2012] A child over fifteen
Decree No. 968, otherwise known as the
(15) years of age acted with "Probation Law of 1976", is hereby
discernment in the commission of amended accordingly.”
murder. What is the duty of the
court if he is already over eighteen 5.00 MAY A MINOR BE MADE TO SERVE
(18) years of age at the time of the HIS SENTENCE IN AGRICULTURAL
determination of his guilt for the
CAMPS AND OTHER TRAINING
offense charged?
FACILITIES? (Sec. 51)
a. The court shall pronounce the
judgment of conviction. Yes, R.A. 9344 is explicit:
b. The court shall place the child
under suspended sentence for a “Sec. 51. Confinement of Convicted Children in
specified period or until he Agricultural Camps and Other Training
reaches twenty-one (21) years of Facilities. - A child in conflict with the law
age. may, after conviction and upon order of the
c. The court shall discharge the court, be made to serve his/her sentence, in
child for disposition measures. lieu of confinement in a regular penal
d. The court shall place the child on institution, in an agricultural camp and other
probation. training facilities that may be established,
maintained, supervised and controlled by the
4.07 BAR Q. [2009] Suppose Joe’s motion BUCOR, in cooperation with the DSWD.”
for intervention or diversion was
denied, and he was convicted two 5.01 ARE THE BENEFITS UNDER THIS
(2) years later when Joe was
already 21 years old, should the PROVISION APPLICABLE WHEN THE
judge apply the suspension of MINOR, HAD ALREADY REACHED 21
sentence? Explain.
YEARS OF AGE OR OVER AT THE
Suggested Answer: A person who is TIME OF HIS CONVICTION?
beyond the age of twenty-one (21) years
cannot avail of the provisions of Sections 38
Yes. In PEOPLE vs. URBAN SALCEDO
and 40 of R .A. 9344 on his suspension of
sentence. ABDURAHMAN ISMAEL DIOLAGRA, G.R. No.
186523, June 22, 2011,the Supreme Court
4.08 IS THE CHILD IN CONFLICT OF THE
LAW ENTITLED TO A CREDIT IN reiterated , just for the guidance of the bench
SERVICE OF SENTENCE? (Sec. 41) and bar, that if indeed, an accused was under
eighteen (18) years of age at the time of the
105
commission of the crime, then as held in shall likewise be exempt from
People v. Sarcial, such offenders, even if criminal liability and be subjected to
already over twenty-one (21) years old at the an intervention program, unless
time of conviction, may still avail of the he/she has acted with discernment,
benefits accorded by Section 51 of R.A. No. in which case, such child shall be
9344. subjected to the appropriate
proceedings in accordance with this
5.02 WHAT IS THE CONCEPT OF STATUS Act.
OFFENSES? (Sec. 57)
b. A child above fifteen (15) years but f. If the court finds that the objective of
below eighteen (18) years of age the disposition measures imposed
106
upon the child in conflict with the law sentence, in lieu of confinement in a
have not been fulfilled, or if the child regular penal institution, in an
in conflict with the law has willfully agricultural camp and other training
failed to comply with the conditions facilities that may be established,
of his/her disposition or maintained, supervised and
rehabilitation program, the child in controlled by the Bureau of
conflict with the law shall be brought Corrections (BUCOR), in
before the court for execution of coordination with the Department of
judgment. Social Welfare and Development
(DSWD).
g. Once the child who is under eighteen
(18) years of age at the time of the j. If said child in conflict with the law
commission of the offense is found has reached eighteen (18) years of
guilty of the offense charged, the age while under suspended sentence,
court shall determine and ascertain the court shall determine whether to
any civil liability which may have discharge the child in accordance
resulted from the offense committed. with this Act, to order, execution of
However, instead of pronouncing the sentence, or to extend the suspended
judgment of conviction, the court sentence for a certain specified
shall place the child in conflict with period or until the child reaches the
the law under suspended sentence, maximum age of twenty-one (21)
without need of application. years.
Provided, however, That suspension
of sentence shall still be applied even
7.00 PRINCIPLES AND DOCTRINES.
if the juvenile is already eighteen
(18) years of age or more at the time 1. DOCTRINE.
of the pronouncement of his/her
People vs. Salvador Atizado and
guilt. Salvador Monreal
G.R. No. 173822, October 13, 2010
h. Republic Act No. 9344 allows the
retroactive application of the law to
The child in conflict with the law
those who have been convicted and
shall enjoy the presumption of minority.
are serving sentence at the time of
He/She shall enjoy all the rights of a child in
the effectivity of said law, and who
conflict with the law until he/she is proven to
were below the age of 18 years at the
be eighteen (18) years old or older. The age
time of the commission of the
of a child may be determined from the child’s
offense.
birth certificate, baptismal certificate or any
4.01 CASE.
CHAPTER XII. THE ANTI-PIRACY AND
ANTI-HIGHWAY ROBBERY LAW There is a piracy, not grave
coercion, where, as part of the act of
Presidential Decree No. 532 seizing their boat, the occupants of the
___________________________________________________ vessel were compelled to go elsewhere
other than their place of destination, such
compulsion was obviously part of the act
1.00 DEFINE PHILIPPINE WATERS of seizing their boat. The testimony of
Eugene, one of the victims, shows that the
It shall refer to all bodies of water, appellant actually seized the vessel
such as but not limited to, seas, gulfs, bays through force and intimidation.
around, between and connecting each of the
Islands of the Philippine Archipelago,
irrespective of its depth, breadth, length or People vs. Emiliano Catantan y Tayong
dimension, and all other waters belonging to G.R No. 118075, September 5, 1997
the Philippines by historic or legal title,
including territorial sea, the sea-bed, the Facts: On 27 June 1993, the Pilapil brothers
insular shelves, and other submarine areas Eugene, 21, and Juan Jr., 18, were fishing in
over which the Philippines has sovereignty the sea some 3 kilometers away from the
or jurisdiction. shores of Tabogon, Cebu. Suddenly, another
boat caught up with them. One of them, later
2.00 DEFINE VESSEL identified as the accused EmilianoCatantan
and Jose MacvenUrsalalis “Bimbo”, bearded
the pump boat of the Pilapils and levelled his
Any vessel or watercraft used for
gun at Eugene. With his gun, Catantan struck
transport of passengers and cargo from one
Eugene on the left cheekbone and ordered
place to another through Philippine Waters.
him and Juan Jr. to "dapa." Then Catantan
It shall include all kinds and types of vessels
told Ursal to follow him to the pumpboat of
or boats used in fishing.
the Pilapils. There they hogtied Eugene,
forced him to lie down at the bottom of the
3.00 DEFINE PHILIPPINE HIGHWAY
boat, covered him with a tarpaulin up to his
neck, stepped on him and ordered Juan Jr. to
It shall refer to any road, street, ferry them to DaanTabogon. and seized their
passage, highway and bridges or other parts fishing boat, to their damage and prejudice.
thereof, or railway or railroad within the
Philippines used by persons, or vehicles, or Issue: Whether or not the accused is liable
locomotives or trains for the movement or for grave coercion and not piracy.
108
Ruling: Presidential Decrees No. 532 section 1; If physical injuries or other
2 Par. (D), defines Piracy as "any attack upon crimes are committed as a result
or seizure of any vessel, or the taking away of or on the occasion thereof.
the whole or part thereof or its cargo,
equipment, or the personal belongings of the 2. If rape, murder or
complement or passengers, irrespective of the homicide is committed as a result
value thereof, by means of violence against or or on the occasion of piracy, or
intimidation of persons or force upon things, when the offenders abandoned
committed by any person, including a the victims without means of
passenger or member of the complement of saving themselves, or when the
said vessel, in Philippine waters, shall be seizure is accomplished by firing
considered as piracy. The offenders shall be upon or boarding a vessel.
considered as pirates and punished as
hereinafter provided." And a vessel is 4.03 BAR Q. [2008] The inter-island
construed in Sec. 2, par. (b), of the same vessel M/V Viva Lines I, while
decree as "any vessel or watercraft used for cruising off Batanes, was forced to
transport of passengers and cargo from one seek shelter at the harbor of
place to another through Philippine waters. It Kaoshiung, Taiwan because of a
shall include all kinds and types of vessels or strong typhoon. While anchored in
boats used in fishing.” said harbor, Max, Baldo and Bogart
arrived in a speedboat, fired a
The Grave Coercion as defined in Art. bazooka at the bow of the vessel,
286 of the Revised Penal Code is committed boarded it and divested the
by "any person who, without authority of law, passengers of their money and
shall, by means of violence, prevent another jewelry. A passenger of M/V Viva
from doing something not prohibited by law, Lines I, Dodong, took advantage of
or compel him to do something against his the confusion to settle an old
will, whether it be right or wrong." grudge with another passenger,
and killed him. After their
This case falls squarely within the apprehension, all four were
purview of piracy. While it may be true that charged with qualified piracy
Eugene and Juan Jr. were compelled to go before a Philippine court.
elsewhere other than their place of
destination, such compulsion was obviously a) Was the charge of qualified
part of the act of seizing their boat. The piracy against the three persons
testimony of Eugene, one of the victims, (Max, Baldo and Bogart) who
shows that the appellant actually seized the boarded the inter-island vessel
vessel through force and intimidation. The correct? Explain.
direct testimony of Eugene is significant and
enlightening and the fact that the revolver Suggested answer: Yes, Max,
used by the appellant to seize the boat was Baldo and Bogart are guilty of
not produced in evidence cannot exculpate qualified piracy. They seized the
him from the crime. The fact remains, and we vessel by firing and boarding the
state it again, that Catantan and his co- vessel, and divested the passengers of
accused Ursal seized through force and their money and jewel. Moreover, on
intimidation the pump boat of the Pilapils the occasion of robbery, the death of
while the latter were fishing in Philippine one passenger resulted.
waters.
b) Was Dodong correctly charged
4.02 WHAT CIRCUMSTANCES QUALIFY before the Philippine court for
PIRACY? qualified piracy? Explain.
109
principle and it was committed perpetrators is not an essential
outside the Philippine territory, requisite of the crime.
Philippine courts do not have
jurisdiction to try the same. b. If you were the defense counsel,
what are the elements of the crime
5.00 WHAT IS THE CRIME OF HIGHWAY of highway robbery that the
ROBBERY/BRIGANDAGE?
prosecution should prove to
sustain a conviction?
The seizure of any person for
ransom, extortion or other unlawful
Suggested Answer: If I were
purposes, or the taking away of the property
of another by means of violence against or the defense counsel, I will argue that
intimidation of person or force upon things the prosecution should first prove the
of other unlawful means, committed by any following:
person on any Philippine Highway(Sec.2).
a. There is taking away of the
5.01 BAR Q. [2012] A postal van property of another
containing mail matters, including committed on any Philippine
checks and treasury warrants, was Highway.
hijacked along a national highway
b. Employment of violence
by ten (10) men, two (2) of whom
against or intimidation of
were armed. They used force,
persons or force upon things
violence and intimidation against
or other unlawful means.
three (3) postal employees who
were occupants of the van, resulting c. The act must be organized
in the unlawful taking and for the purpose of committing
asportation of the entire van and its robbery indiscriminately.
contents. Acts of robbery should not be
committed against a
a. If you were the public prosecutor, predetermined or particular
would you charge the ten (10)
victim.
men who hijacked the postal van
with violation of Presidential
Decree No. 532, otherwise known 5.02 WHAT CIRCUMSTANCES QUALIFY
as the Anti-Piracy and Anti - HIGHWAY ROBBERY OR
Highway Robbery Law of 1974? BRIGANDAGE?
Explain your answer.
In Highway Robbery/ Brigandage
Suggested Answer: He is
liable under P.D. 532. There was 1. If physical injuries or other
indiscriminate highway robbery in crimes are committed during or
Philippine Highway. It was on the occasion of the
committed in a national highway commission of robbery or
used by persons, or vehicles, for the brigandage.
movement or circulation of persons or
transportation of goods, articles, or 2. If kidnapping for ransom
property or both. By means of or extortion, or murder or
violence and intimidation against homicide, or rape is committed
three (3) postal employees who were as a result or on the occasion
occupants of the van, they were able thereof.
to unlawful take the entire van and
its contents. 6.00 IS THE ACT OF AIDING PIRATES OR
HIGHWAY ROBBERY/BRIGANDS
PD 532 does not require that OR ABETTING PIRACY OR
there should be at least four armed HIGHWAY ROBBERY/BRIGANDAGE
persons forming a band of robbers. PUNISHABLE?
Under this law, the number of
110
Yes. The law provides that any A higher penalty is imposed if
person who knowingly and in any manner hijacking is committed under any of the
aids or protects pirates or highway following circumstances:
robbers/brigands, such as giving them
information about the movement of police or 1. Whenever he has fired upon the
other peace officers of the government, or pilot, member of the crew or
acquires or receives property taken by such passenger of the aircraft;
pirates or brigands or in any manner derives
any benefit therefrom; or any person who 2. Whenever he has exploded or
directly or indirectly abets the commission of attempted to explode any bomb or
piracy or highway robbery or brigandage, explosive to destroy the aircraft; or
shall be considered as an accomplice of the
principal offenders and be punished in 3. Whenever the crime is
accordance with the Rules prescribed by the accompanied by murder, homicide,
Revised Penal Code (Sec.4). serious physical injuries or rape
(Sec.2).
6.01 WHAT IS THE PRESUMPTION
PROVIDED UNDER SECTION 4? 1.03 WHAT OTHER ACT IS PUNISHED
UNDER THIS LAW?
It shall be presumed that any person
who does any of the acts provided in this It shall be unlawful for any person,
Section has performed knowingly, unless the natural or juridical, to ship, load or carry in
contrary is proven. any passenger aircraft operating as a public
utility within the Philippines, any explosive,
flammable, corrosive or poisonous
substance or material (Sec.3).
-oooOOOooo-
2. CASE
___________________________________________________
SEC.9 Every ticket issued to a passenger by
the airline or air carrier concerned shall 1.00 DEFINE THE FOLLOWING TERMS:
contain among others the following
condition printed thereon: "Holder hereof
"Motor vehicle" is any vehicle
and his hand-carried luggage(s) are subject
propelled by any power other than muscular
to search for , and seizure of, prohibited
power using the public highways, but
materials or substances. Holder refusing to be
excepting road rollers, trolley cars, street-
searched shall not be allowed to board the
sweepers, sprinklers, lawn mowers,
aircraft," which shall constitute a part of the
bulldozers, graders, fork-lifts, amphibian
contract between the passenger and the air
trucks, and cranes if not used on public
carrier.
highways, vehicles, which run only on rails or
tracks, and tractors, trailers and traction
This constitutes another exception to
engines of all kinds used exclusively for
the proscription against warrantless
agricultural purposes.
searches and seizures. As admitted by SUSAN
and shown in Annex "D" of her Brief, the
afore-quoted provision is stated in the Trailers having any number of
"Notice to All Passengers" located at the final wheels, when propelled or intended to be
security checkpoint at the departure lounge. propelled by attachment to a motor vehicle,
From the said provision, it is clear that the shall be classified as separate motor vehicle
search, unlike in the Terry search, is not with no power rating.
limited to weapons. Passengers are also
112
1.01 WHAT IS THE CRIME OF possession of the property by the person
CARNAPPING? dispossessed suffices. People Vs. Artemio
Garcia Y Cruz, Jr., et al. G.R. No. 138470, April
It is the taking, with intent to gain, of 1, 2003.
a motor vehicle belonging to another without
the latter's consent, or by means of violence 1.05 DOES THE ELEMENT OF TAKING
against or intimidation of persons, or by ABSORB THE LOSS OF CASH OR
using force upon things. OTHER PERSONALPROPERTY?
1.02 WHAT ARE THE ELEMENTS OF No. Although carnapping and robbery have
CARNAPPING? the same element of taking with intent to
gain, the former specifically refers to the
The elements of carnapping are as unlawful taking of a motor vehicle.only.
follows: People vs. Dela Cruz, GR No. 174658,February
24, 2009.
1. That there is an actual taking of the
vehicle; 1.06 BAR Q. [2008] While Carlos was
approaching his car, he saw it being
2. That the offender intends to gain driven away by Paolo, a thief.
from the taking of the vehicle; Carlos tried to stop Paolo by
shouting at him, but Paolo ignored
3. That the vehicle belongs to a
him. To prevent his car from being
person other than the offender
himself; carnapped, Carlos drew his gun,
aimed at the rear wheel of the car
4. That the taking is without the and fired. The shot blew the tire
consent of the owner thereof; or that which caused the car to veer out of
the taking was committed by means control and collide with an
of violence against or intimidation of oncoming tricycle, killing the
persons, or by using force upon
tricycle driver. x x x What is the
things. People Vs. Artemio Garcia Y
Cruz, Jr., et al. G.R. No. 138470, April criminal liability of Paolo, if any?
1, 2003. Explain.
116
If the offender knew that the victim c. Arson, the homicide being absorbed
was in the house when it was set on fire, the already
crime committed, instead of arson, would be d. Arson with murder as a compound
murder. The fire constitutes as a qualifying crime
circumstance.
3.00 WHEN IS A CRIME INVOLVING
2.03(a) BAR Q. [2012] With intent to kill, DESTRUCTION AN ACT OF
GGG burned the house where F and TERRORISM?
D were staying. F and D died as a
consequence. What is the proper Under R.A. No. 9372, otherwise known
charge against GGG? as the Human Security Act of 2007, a person
who commits an act punishable under Art.
a. GGG should be charged 324 (Crimes Involving Destruction) and
with two (2) counts of thereby sowing and creating condition of
murder. widespread and extraordinary fear and
b. GGG should be charged panic among the populace, in order to coerce
with arson. the government to give in to an unlawful
c. GGG should be charged demand shall be guilty of the crime of
with complex crime of terrorism and shall suffer the penalty of forty
arson with double (40) years of imprisonment without the
murder. benefit of parole.
d. GGG should be charged
with complex crime of OTHER MATTERS TO CONSIDER
double murder (*Fire was
used to commit the The building which is the object of arson
killing.It serves as a including the land on which it is situated
qualifying circumstance shall be confiscated and escheated to the
to the crime of murder. It State, unless the owner thereof can prove
is a complex crime under that he has no participation in nor
Article 48 of the RPC knowledge of such arson despite the exercise
because the single act of of due diligence on his part. (Sec.8)
burning the house
constitutes 2 grave
felonies). -oooOOOooo-
2.04 SUPPOSE BEFORE SETTING THE
HOUSE ON FIRE, THE OFFENDER
ENTERED IN AND KILLED THE CHAPTER XVI. THE ANTI-ALIAS LAW
VICTIM, THEN HE SET IT ON FIRE TO
CONCEAL THE BODY OF THE
Republic Act No. 6085
LATTER, WHAT CRIME WAS
[BAR 2006]
COMMITTED?
___________________________________________________
If the offender killed the victim before
the house was set on fire, two crimes are 1.00 WHAT IS THE RULE WITH RESPECT
committed, murder and arson. The burning
TO THE USE OF A PERSON’S
of the house to hide the killing is a separate
REGISTERED NAME?
crime. Arson was committed to conceal the
crime of murder.
The law provides that no persons shall use
any name different from the one with which
2.05(a) BAR Q.[2011] Dagami concealed
he was registered at birth in the office of the
Bugna’s body and the fact that he
local civil registry, or with which he was
killed him by setting Bugna’s house
baptized for the first time, or, in case of an
on fire. What crime or crimes did
alien, with which he was registered in the
Dagami commit?
bureau of immigration upon entry; or such
substitute name as may have been
a. Murder, the arson being absorbed
authorized by a competent court. (Sec.1)
already
b. Separate crimes of murder and arson
117
1.01 WHEN IS THE USE OF ‘ALIAS’ document without stating or affixing his
ALLOWED BY LAW? real or original name and all names or aliases
or pseudonym he is or may have been
The use of ‘alias’ is allowed as a authorized to use.
pseudonym solely for literary, cinema,
television, radio or other entertainment
purposes and in athletic events where the -oooOOOooo-
use of pseudonym is a normally accepted
practice. (Sec.1)
119
(a) harboring or concealing, or agencies from apprehending the offender or
facilitating the escape of, any person from protecting the life or property of the
he knows, or has reasonable ground victim; or fabricating information from the
to believe or suspect, has committed data gathered in confidence by investigating
any offense under existing penal laws authorities for purposes of background
in order to prevent his arrest information and not for publication and
prosecution and conviction; publishing or disseminating the same to
mislead the investigator or to the court.
1.04 Illustrative case of 1(c).
1.05 WHAT IS THE EFFECT IF THERE IS
BAR Q. [2011] A private person who ANOTHER LAW WHICH PUNISHES
assists the escape of a person who THE ACT WITH A HIGHER
committed robbery shall be liable- PENALTY?(SEC.1)
120
121