Part III BOOK II Special Laws Criminal Law 2019 Bar Last Minute SNM II

PRE-WEEK AND
LAST MINUTE LECTURE

IN CRIMINAL LAW
(2019 BAR)
BY:
ATTY. SALVADOR N. MOYA II, LL.M.
III. SPECIAL LAWS
ANTI-FENCING LAW OF 1979 (SECS. 2 AND 5, PD 1612)
1.Q. What is fencing?
1.A. In Cahulogan vs. People (G.R. No. 225695, March 21, 2018)(Second Division)
[Perlas-Bernabe, J.], the High Court said that: Section 2 of PD 1612 defines Fencing as the act
of any person who, with intent to gain for himself or for another, shall buy, receive,
possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other
manner deal in any article, item, object or anything of value which he knows, or should be
known to him, to have been derived from the proceeds of the crime of robbery or
theft.1 The same Section also states that a Fence includes any person, firm, association,
corporation or partnership or other organization who/which commits the act of fencing. 2
2.Q. What are the essential elements of the crime of fencing?
2.A. The essential elements of the crime of fencing are as follows:
(a) a crime of robbery or theft has been committed;
(b) the accused, who is not a principal or an accomplice in the commission of the
crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or
disposes, or buys and sells, or in any manner deals in any article, item, object or anything of
value, which has been derived from the proceeds of the crime of robbery or theft;
(c) the accused knew or should have known that the said article, item, object or
anything of value has been derived from the proceeds of the crime of robbery or theft; and
(d) there is, on the part of one accused, intent to gain for oneself or for another. 3
Notably, Fencing is a malum prohibitum, and PD 1612 creates a prima

facie presumption of Fencing from evidence of possession by the accused of any good, article,
item, object or anything of value, which has been the subject of robbery or theft; and
prescribes a higher penalty based on the value of the property. 4
3.Q. What is the proper penalty for the crime of fencing? Explain.
3.A. Anent the proper penalty to be imposed pertinent portions of Section 3 of PD

1612 read:
SECTION 3. Penalties. – Any person guilty of fencing shall be punished as hereunder

indicated:
(a) The penalty of prision mayor, if the value of the property involved is more than
12,000 pesos but not exceeding 22,000 pesos; if the value of such property exceeds the latter
1
See Section 2 (a) of PD 1612.
2
See Section 2 (b) of PD 1612.
3
Ong v. People, 708 Phil. 565, 571 (2013); citing Capili v. CA, 392 Phil. 577, 592 (2000).
4
Ong v. People; id. at 574; citing Dizon-Pamintuan v. People, G.R. No. 111426, July 11, 1994, 234 SCRA 63, 72. See
also Section 5 of PD 1612 which reads:
Section 5. Presumption of Fencing. — Mere possession of any good, article, item, object, or anything of value which
has been the subject of robbery or thievery shall be prima facie evidence of fencing.
1
2 PRE-WEEK AND LAST MINUTE LECTURE 2019 BAR
IN CRIMINAL LAW
sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding
one year for each additional 10,000 pesos; but the total penalty which may be imposed shall
not exceed twenty years. In such cases, the penalty shall be termed reclusion temporal and
the accessory penalty pertaining thereto provided in the Revised Penal Code shall also be
imposed.
xxxx
Notably, while the crime of Fencing is defined and penalized by a special penal law,
the penalty provided therein is taken from the nomenclature in the Revised Penal Code
(RPC). In Peralta v. People,5 the Supreme Court discussed the proper treatment of penalties
found in special penal laws vis-a-vis Act No. 4103,6 otherwise known as the "Indeterminate
Sentence Law, viz.: Meanwhile, Sec. 1 of Act No. 4103, otherwise known as the Indeterminate
Sentence Law (ISL), provides that if the offense is ostensibly punished under a special law,
the minimum and maximum prison term of the indeterminate sentence shall not be beyond
what the special law prescribed. Be that as it may, the Court had clarified in the landmark
ruling of People v. Simon that the situation is different where although the offense is defined
in a special law, the penalty therefor is taken from the technical nomenclature in the RPC.
Under such circumstance, the legal effects under the system of penalties native to the Code
would also necessarily apply to the special law. 7
Otherwise stated, if the special penal law adopts the nomenclature of the penalties
under the RPC, the ascertainment of the indeterminate sentence will be based on the rules
applied for those crimes punishable under the RPC.8
At this point, the Court notes that as may be gleaned from its whereas clauses, PD
1612 was enacted in order to provide harsher penalties to those who would acquire properties
which are proceeds of the crimes of Robbery or Theft, who prior to the enactment of said law,
were punished merely as accessories after the fact of the said crimes. 9 This rationale was
echoed in Dizon-Pamintuan v. People10 where the Court held that while a Fence may be
prosecuted either as an accessory of Robbery/Theft or a principal for Fencing, there is a
preference for the prosecution of the latter as it provides for harsher penalties: Before P.D. No.
1612, a fence could only be prosecuted for and held liable as an accessory, as the term is
defined in Article 19 of the Revised Penal Code. The penalty applicable to an accessory is
obviously light under the rules prescribed in Articles 53, 55, and 57 of the Revised Penal Code,
subject to the qualification set forth in Article 60 thereof. Noting, however, the reports from
law enforcement agencies that there is rampant robbery and thievery of government and
private properties and that such robbery and thievery have become profitable on the part of
the lawless elements because of the existence of ready buyers, commonly known as fence, of
stolen properties, P.D. No. 1612 was enacted to impose heavy penalties on persons who profit
by the effects of the crimes of robbery and theft.
4.Q. Can the accessory in the crimes of robbery and theft be prosecuted either
under the Revised Penal Code or P.D. No. 1612? What would be the effect if it will be
prosecuted under P.D. No. 1612?
4.A. Yes. The accessory in the crimes of robbery and theft could be prosecuted as
such under the Revised Penal Code or under P.D. No. 1612. However, in the latter case, he
ceases to be a mere accessory but becomes a principal in the crime of fencing. Elsewise
stated, the crimes of robbery and theft, on the one hand, and fencing, on the other, are
separate and distinct offenses.The state may thus choose to prosecute him either under the
Revised Penal Code or P.D. No. 1612, although the preference for the latter would seem
5
G.R. No. 221991, August 30, 2017
6
Entitled "AN ACT TO PROVIDE FOR AN INDETERMINATE SENTENCE AND PAROLE FOR ALL PERSONS
CONVICTED OF CERTAIN CRIMES BY THE COURTS OF THE PHILIPPINE ISLANDS; TO CREATE A BOARD OF
INDETERMINATE SENTENCE AND TO PROVIDE FUNDS THEREFOR, AND FOR OTHER PURPOSES" (December 5,
1933)
7
See Peralta v. People, supra note 29; citing Quimvel v. People, G.R. No. 214497, April 18, 2017.
8
See Peralta v. People, id.; citing Mabunot v. People, GR. No. 204659, September 19, 2016, 803 SCRA 349, 364.
9
The whereas clauses of PD 1612 read:
WHEREAS, reports from law enforcement agencies reveal that there is rampant robbery and thievery of
government and private properties;
WHEREAS, such robbery and thievery have become profitable on the part of the lawless elements because of the
existence of ready buyers, commonly known as fence, of stolen properties;
WHEREAS, under existing law, a fence can be prosecuted only as an accessory after the fact and punished lightly;
WHEREAS, it is imperative to impose heavy penalties on persons who profit by the effects of the crimes of robbery
and theft.
10
G.R. No. 111426, July 11, 1994, 234 SCRA 63, 72.
2019 BAR PRE-WEEK AND LAST MINUTE LECTURE 3
IN CRIMINAL LAW
inevitable considering that fencing is a malumprohibitum, and P.D. No. 1612 creates a
presumption of fencing and prescribes a higher penalty based on the value of the
property.11
5.Q. In view of the amendment of the RPC by R.A. No. 10951, fence, which is a
mere accessory to the crime of Robbery/Theft, will be punished more severely than the
principal of such latter crimes. What is the remedy thereto?
5.A. With the recent enactment of Republic Act No. 10951,12 which adjusted the
values of the property and damage on which various penalties are based, taking into
consideration the present value of money, as opposed to its archaic values when the RPC was
enacted in 1932,13 the graduation of values in Article 309 was substantially amended,
without any concomitant adjustment for PD 1612.This development would then result in
instances where a Fence, which is theoretically a mere accessory to the crime of
Robbery/Theft, will be punished more severely than the principal of such latter crimes.
This incongruence in penalties therefore, impels an adjustment of penalties.
Thus, in Cahulugan vs. People supra, the Supreme Court through Madam Justice
Perlas-Bernabe said:
However, while it may be the most expeditious approach, a short cut by judicial fiat
is a dangerous proposition, lest the Court dare trespass on prohibited judicial
legislation.14 As the Court remains mindful of the fact that the determination of penalties is a
policy matter that belongs to the legislative branch of the government, it finds it prudent
to instead, furnish both Houses of Congress, as well as the President of the Republic of the
Philippines, through the Department of Justice, pursuant to Article 515 of the RPC, copies
of this ruling in order to alert them on the aforestated incongruence of penalties, all with
the hope of arriving at the proper solution to this predicament.
ANTI-GRAFT AND CORRUPT PRACTICES ACT (SEC. 3, RA 3019, AS AMENDED)
6.Q. What are the elements of the offense under Section 3(e) of RA 3019?
6.A. In the following cases:
1. Cambe vs. Office of the Ombudsman (812 SCRA537, 6 December 2016)(En

Banc)[Perlas-Bernabe, J.]
2. Reyes vs. Ombudsman (787 SCRA 354, 15 March 2016)(En Banc)[Perlas-

Bernabe, J.]
3. PCGG vs. Office of the Ombudsman (785 SCRA 55, 24 February 2016)(First
Division)[Perlas-Bernabe, J.]
4. PDIC vs. Casimiro (769 SCRA 110, 2 September 2015)(First Division)[Perlas-

Bernabe, J.]
11
See Rivac v. People, G.R. No. 224673, January 22, 2018, supra note 22.
12
Entitled "AN ACT ADJUSTING THE AMOUNT OR THE VALUE OF PROPERTY AND DAMAGE ON WHICH A
PENALTY IS BASED, AND THE FINES IMPOSED UNDER THE REVISED PENAL CODE, AMENDING FOR THE
PURPOSE ACT NO. 3815, OTHERWISE KNOWN AS 'THE REVISED PENAL CODE,' AS AMENDED" approved on
August 29, 2017.
13
See Rivac v. People, G.R. No. 224673 (22 January 2018).
14
Corpuz v. People, 734 Phil. 353 (2014).
15
Article 5 of the RPC reads:
Article 5. Duty of the court in connection with acts which should be repressed but which are not covered by
the law, and in cases of excessive penalties. - Whenever a court has knowledge of any act which it may deem
proper to repress and which is not punishable by law, it shall render the proper decision, and shall report to the
Chief Executive, through the Department of Justice, the reasons which induce the court to believe that said act
should be made the subject of penal legislation.
In the same way, the court shall submit to the Chief Executive, through the Department of Justice, such statement
as may be deemed proper, without suspending the execution of the sentence, when a strict enforcement of the
provisions of this Code would result in the imposition of a clearly excessive penalty, taking into consideration the
degree of malice and the injury caused by the offense.
IN CRIMINAL LAW
5. Garcia vs. Office of the Ombudsman16 (741 SCRA 172, 19 November

2014)(First Division)[Perlas-Bernabe, J.], it was held that: The elements of the offense are as
follows:
(1) that the accused are public officers or private persons charged in conspiracy
with them;
(2) that said public officers commit the prohibited acts during the performance
of their official duties or in relation to their public positions;
(3) that they caused undue injury to any party, whether the Government or a
private party;
(4) that such injury is caused by giving unwarranted benefits, advantage or

preference to such parties; and
(5) that the public officers have acted with manifest partiality, evident bad
faith or gross inexcusable negligence.17 (Bustillo vs. People, 620 SCRA 483, 12 May 2010;
See also Lumauig vs. People, 729 SCRA 191, 7 July 2014.)
7.Q. What is the difference between manifest partiality and evident bad faith?
7.A. There is manifest partiality when there is a clear, notorious, or plain

inclination or predilection to favor one side or person rather than another.
On the other hand, evident bad faith connotes not only bad judgment but also
palpably and patently fraudulent and dishonest purpose to do moral obliquity or conscious
wrongdoing for some perverse motive or ill will.
It contemplates a state of mind affirmatively operating with furtive design or with

some motive or self-interest or ill will or for ulterior purposes. 18
PROBLEM:
Amalia Dimas is the sole proprietor of Triple A Ship Chandling and General Maritime
Services in the Port of Iraga, a second class municipality in the province of Sampaga. By
December 2018, she already completed all her requirements for the renewal of her business
permit including all the clearances from the Barangay Chairman up to the Regional Office of
the PNP, attesting that there is no pending criminal, civil or administrative case against her or
her business enterprise. Despite all these compliance, the sitting Mayor Maximiano Monis of
the Municipality of Iraga, refused and continue to refuse the renewal.
Accordingly, the refusal of Mayor Monis was due to the information and humors he
gathered that Dimas was engaged in illegal activities such as smuggling and drug trading.
Upon receipt of the said information, Mayor Monis issued an unnumbered

Memorandum addressed to port officials and the BOC. Monis maintained that if he went on
with the approval of such permit and the rumors turned out to be true, many will suffer and
will be victimized; on the other hand, if the rumors were false, then only one stands to suffer.
However, similar Ship Chandlers operating in the Port of Iraga were issued Mayor’s
permit by Mayor Monis, living Dimas as the only one who was denied.
8.Q. What is the criminal liability of Mayor Monis, if there is any?
8.A. In the case of Fuentes vs. People (822 SCRA 509, 17 April 2017)(First
Division)[Perlas-Bernabe, J.], a case with similar factual milieu with the problem, the High
16
The elements of the crime of Violation of Section 3(e), RA 3019 are as follows: (a) the offender must be a public
officer discharging administrative, judicial, or official functions; (b) he must have acted with manifest partiality,
evident bad faith or gross inexcusable negligence; and (c) his action caused any undue injury to any party,
including the government, or gave any private party unwarranted benefits, advantage or preference in the
discharge of his functions. (Lihaylihay vs. People, 702 SCRA 755, 31 July 2013.)
17
Evangelista vs. People, 392 Phil. 449 (2000).
18
Uriarte vs. People, 540 Phil. 474 (2006).
IN CRIMINAL LAW
Court ruled that: Mayor Monis is criminally liable for violation of Section 3 (e) of RA 3019. The
upheld the conviction of the accused by the Sandiganbayan.
In this case, Monis committed the acts not only with manifest partiality but also
with bad faith. Monis, himself, averred that according to the rumors he heard, the ship
chandlers operating in the Port of Iraga were allegedly involved in smuggling and drug
trading. Yet, it was only Dimas’ chandling operations through Triple A that was refused
issuance of a Business Permit. Record shows that he issued business permits to two (2)
other chandling services operators in the said port.
Under these questionable circumstances, Monis’ refusal to issue a Business Permit

to Triple A was indeed committed with manifest partiality against the latter, and in favor
of the other ship chandling operators in the Port of Iraga.
PROBLEM:
In the case of People vs. Go supra, respondent was indicted for violation of Section
3(g) of R.A. No. 3019 together with Secretary Arturo Enrile of the DOTC. Prior to the filing of
the Information Secretary Enrile died.
9.Q. Can the respondent, a private person, be indicted for conspiracy in violating
Section 3(g) of R.A. 3019 even if the public officer, with whom he was alleged to have
conspired, has died prior to the filing of the case.
9.A. Yes. In the case of People vs. Go (719 SCRA 704, 25 March 2014)(En Banc)
[Peralta, J.], it was held that: It is true that by reason of Secretary Enrile's death, there is
no longer any public officer with whom respondent can be charged for violation of R.A.
3019. It does not mean, however, that the allegation of conspiracy between them can no
longer be proved or that their alleged conspiracy is already expunged.
The only thing extinguished by the death of Secretary Enrile is his criminal liability.
His death did not extinguish the crime nor did it remove the basis of the charge of conspiracy
between him and private respondent.
Stated differently, the death of Secretary Enrile does not mean that there was no
public officer who allegedly violated Section 3(g) of R.A. 3019. In fact, the Office of the Deputy
Ombudsman for Luzon found probable cause to indict Secretary Enrile for infringement of
Sections 3(e) and (g) of R.A. 3019. Were it not for his death, he should have been charged.
The requirement before a private person may be indicted for violation of Section 3(g) of
R.A. 3019, among others, is that such private person must be alleged to have acted in
conspiracy with a public officer. The law, however, does not require that such person must, in
all instances, be indicted together with the public officer. If circumstances exist where the
public officer may no longer be charged in court, as in the present case where the public
officer has already died, the private person may be indicted alone.
10.Q. In case of violation of Section 3(g), R.A. No. 3019, is it required to give
undue advantage to private individual in order to be held liable? Explain.
10.A. No. In the following cases:
1. PCGG vs. Office of the Ombudsman (785 SCRA 55, 24 February 2016)(First
2. People vs. Go (719 SCRA 704, 25 March 2014)(En Banc)[Peralta, J.], the High
Court ruled that: Section 3 (g) of RA 3019 does not require the giving of unwarranted
benefits, advantages or preferences to private parties who conspire with public officers, its
core element being the engagement in a transaction or contract that is grossly and
manifestly disadvantageous to the government.19
11.Q. What are the elements in order to be held liable for violations of Section
3(g) of R.A. No. 3019?
11.A. The elements of the offense are:
19
Presidential Ad Hoc Fact-Finding Committee on Behest Loans vs. Desierto, 664 Phil. 16 (2011).
IN CRIMINAL LAW
(1) that the accused is a public officer;
(2) that he entered into a contract or transaction on behalf of the government;

and
(3) that such contract or transaction is grossly and manifestly disadvantageous

to the government.
ANTI-HAZING ACT OF 2018 (SECS. 2 AND 3, RA 8049, AS AMENDED BY RA 11053)
12.Q. What is the criminal liability of the officers and members of a fraternity or
sorority if during the initiation rite, a neophyte suffered injuries or died?
12.A. In the case of Marcos vs. Cabrera-Faller (815 SCRA 285, 24 January 2017)(En
Banc)[Per Curiam], the Supreme Court held that: Under Section 4 of R.A. No. 8049, if the
person subjected to hazing or other forms of initiation rites suffers any physical injury or dies
as a result thereof, the officers and members of the fraternity, sorority or organization who
actually participated in the infliction of physical harm shall be liable as principals, and the
officers and members present during the hazing are prima facie presumed to have actually
participated, unless it can be shown that he or she prevented the commission of the
punishable acts.
This disputable presumption arises from the mere presence of the offender during
the hazing.
Hazing is commonly characterized by secrecy and silence and to require the

prosecution to indicate every step of the planned initiation rite in the information at the
inception of the criminal case would be a strenuous task.
ANTI-PLUNDER ACT (SECS. 1 AND 2, RA 7080, AS AMENDED BY RA 7659)
13.Q. What are the elements of plunder?
1. Cambe vs. Office of the Ombudsman (812 SCRA 537, 6 December 2016)(En
Banc)[Perlas-Bernabe, J.]
2. Reyes vs. Ombudsman (787 SCRA 354, 15 March 2016)(En Banc)[Perlas-

Bernabe, J.], the High Court ruled that: Plunder, defined and penalized under Section 2 of RA
7080, as amended, has the following elements:
(a) that the offender is a public officer, who acts by himself or in connivance
with members of his family, relatives by affinity or consanguinity, business associates,
subordinates or other persons;
(b) that he amasses, accumulates or acquires ill-gotten wealth through a

combination or series of overt or criminal acts described in Section 1 (d) thereof; and
(c) that the aggregate amount or total value of the ill-gotten wealth amassed,
accumulated or acquired is at least Fifty Million Pesos (P50,000,000.00).
14.Q. What does the phrase “raids on public treasury” mean?
1. In the case of Macapagal-Arroyo vs. People 823 SCRA 370, 18 April 2017)(En
Banc)[Bersamin, J.](Resolution which DENIED the Motion for Reconsideration of the People);
2. Macapagal-Arroyo vs. People, 797 SCRA 241, 19 July 2016)(En Banc)

[Bersamin, J.](Main Decision)(Petitioner initially filed a Demurrer to Evidence with the
Sandiganbayan. However, it was Denied. By Petition for Certiorari to the Supreme Court, it
was granted and ordered the Dismissal of the Case of Plunder), the High Court explained that:
The phrase raids on the public treasury as used in Section 1(d) of R.A. No. 7080 is itself
ambiguous. In order to ascertain the objective meaning of the phrase, the act of raiding the
IN CRIMINAL LAW
public treasury cannot be divided into parts. This is to differentiate the predicate act
of raids on the public treasury from other offenses involving property, like robbery, theft,
or estafa. Considering that R.A. No. 7080 does not expressly define this predicate act, the
Court has necessarily resorted to statutory construction. In so doing, the Court did not adopt
the State's submission that personal benefit on the part of the accused need not be alleged
and shown because doing so would have defeated the clear intent of the law itself, which was
to punish the amassing, accumulating, or acquiring of ill-gotten wealth in the aggregate
amount or total value of at least P50,000,000.00 by any combination or series of acts of
misappropriation, conversion, misuse, or malversation of public funds or raids on the public
treasury.
To discern the proper import of the phrase raids on the public treasury, the key is to
look at the accompanying words: misappropriation, conversion, misuse or malversation of
public funds. This process is conformable with the maxim of statutory construction noscitur
a sociis, by which the correct construction of a particular word or phrase that is ambiguous
in itself or is equally susceptible of various meanings may be made by considering the
company of the words in which the word or phrase is found or with which it is associated.
Verily, a word or phrase in a statute is always used in association with other words or
phrases, and its meaning may, therefore, be modified or restricted by the latter.
15.Q. What does the law on plunder require in order that a public officer shall be
held criminally liable? Explain.
15.A. The law on plunder requires that a particular public officer must be
identified as the one who amassed, acquired or accumulated ill-gotten wealth because it
plainly states that plunder is committed by any public officer who, by himself or in connivance
with members of his family, relatives by affinity or consanguinity, business associates,
subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth in the
aggregate amount or total value of at least P50,000,000.00 through a combination or series of
overt criminal acts as described in Section 1 (d) hereof.
Surely, the law requires in the criminal charge for plunder against several individuals
that there must be a main plunderer and her co-conspirators, who may be members of her
family, relatives by affinity or consanguinity, business associates, subordinates or other
persons. In other words, the allegation of the wheel conspiracy or express conspiracy in the
information was appropriate because the main plunderer would then be identified in
either manner. Of course, implied conspiracy could also identify the main plunderer, but
that fact must be properly alleged and duly proven by the Prosecution.
16.Q. What does “connivance” mean under the law on plunder?
16.A. In the case of Enrile vs. People (766 SCRA 1, 11 August 2015)(En Banc)
[Brion, J.](Denial of the Bill of Particulars of Enrile which was granted by the SC), it was ruled
that: The term connivance suggests an agreement or consent to commit an unlawful act or
deed with another; to connive is to cooperate or take part secretly with another. It implies
both knowledge and assent that may either be active or passive.
Since the crime of plunder may be done in connivance or in conspiracy with other
persons, and the Information filed clearly alleged that Enrile and Jessica Lucila Reyes
conspired with one another and with Janet Lim Napoles, Ronald John Lim and John Raymund
De Asis, then it is unnecessary to specify, as an essential element of the offense, whether the
ill-gotten wealth amounting to at least P172,834,500.00 had been acquired by one, by two or
by all of the accused. In the crime of plunder, the amount of ill-gotten wealth acquired by
each accused in a conspiracy is immaterial for as long as the total amount amassed,
acquired or accumulated is at least P50 million.
17.Q. Is it sufficient to allege in the Information that the amount of ill-gotten

wealth amassed by the accused amounted to P50 million to constitute plunder? Explain.
17.A. No. Plunder is the crime committed by public officers when they amass wealth
involving at least P50 million by means of a combination or series of overt acts. Under these
terms, it is not sufficient to simply allege that the amount of ill-gotten wealth amassed
amounted to at least P50 million; the manner of amassing the ill-gotten wealth –
whether through a combination or series of overt acts under Section 1(d) of R.A. No. 7080 –
is an important element that must be alleged.
IN CRIMINAL LAW
When the Plunder Law speaks of ―combination,‖ it refers to at least two (2) acts
falling under different categories listed in Section 1, paragraph (d) of R.A. No. 7080 [for
example, raids on the public treasury under Section 1, paragraph (d), subparagraph (1), and
fraudulent conveyance of assets belonging to the National Government under Section 1,
paragraph (d), subparagraph (3)].
On the other hand, to constitute a ―series‖ there must be two (2) or more overt or
criminal acts falling under the same category of enumeration found in Section 1, paragraph (d)
[for example, misappropriation, malversation and raids on the public treasury, all of which fall
under Section 1, paragraph (d), subparagraph (1)].
18.Q. How is plunder proven?
18.A. Plunder is a crime composed of several predicate criminal acts. To prove

plunder, the prosecution must weave a web out of the six ways of illegally amassing
wealth and show how the various acts reveal a combination or series of means or schemes
that reveal a pattern of criminality.
The interrelationship of the separate acts must be shown and be established as a

scheme to accumulate ill-gotten wealth amounting to at least P50 million.
Plunder thus involves intricate predicate criminal acts and numerous transactions and
schemes that span a period of time. Naturally, in its prosecution, the State possesses an
effective flexibility of proving a predicate criminal act or transaction, not originally
contemplated in the Information, but is otherwise included in the broad statutory definition, in
light of subsequently discovered evidence. The unwarranted use of the flexibility is what the
bill of particulars guards against.
ANTI-TRAFFICKING IN PERSONS ACT OF 2003 (SECS. 3, 4, AND 6, RA 9208, AS

AMENDED)
19.Q. What does “trafficking in persons” mean?
19.A. In the case of People vs. XXX and YYY (G.R. No. 235652, 9 July 2018)(Second
Division)[Perlas-Bernabe, J.], the High Court held that: Section 3(a) of RA 9208 defines the
term ―Trafficking in Personsas” as the recruitment, transportation, transfer or harboring,
or receipt of persons with or without the victim's consent or knowledge, within or across
national borders by means of threat or use of force, or other forms of coercion, abduction,
fraud, deception, abuse of power or of position, taking advantage of the vulnerability of
the person, or, the giving or receiving of payments or benefits to achieve the consent of a
person having control over another person for the purpose of exploitation which includes
at a minimum, 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.
The same provision further provides that the recruitment, transportation, transfer, harboring or
receipt of a child for the purpose of exploitation shall also be considered as trafficking in
persons even if it does not involve any of the means set forth in the preceding paragraph.
20.Q. What is meant by qualified trafficking in persons?
20.A. The crime of Trafficking in Persons becomes qualified under, among others,
the following circumstances:
SECTION 6. Qualified Trafficking in Persons.– The following are

considered as qualified trafficking:
(a) When the trafficked person is a child;
x-x-x-x
(d) When the offender is an ascendant, parent, sibling, guardian or

a person who exercises authority over the trafficked person or when the
offense is committed by a public officer or employee;
x xxx
21.Q. What other acts constitute trafficking in persons?

IN CRIMINAL LAW
21.A. Under Section 4. Acts of Trafficking in Persons.–It shall be unlawful for any
person, natural or juridical, to commit any of the following acts:
(a) To recruit, transport, transfer, harbor, provide, or receive a

person by any means, including those done under the pretext of domestic or
overseas employment or training or apprenticeship, for the purpose of
prostitution, pornography, sexual exploitation, forced labor, slavery,
involuntary servitude or debt bondage;
x xx
(e) To maintain or hire a person to engage in prostitution or

pornography;
x xxx
22.Q. Can parents be convicted for violations of R.A. No. 9208?
22.A. Yes. In the case of People vs. XXX and YYY, the Supreme Court affirmed the
convictions of the two accused. It was held that:
As correctly ruled by the courts a quo, accused-appellants are guilty beyond

reasonable doubt of three (3) counts of Qualified Trafficking in Persons under Section 4 (e) in
relation to Section 6 (a) and (d) of RA 9208 as the prosecution had established beyond
reasonable doubt that:
(a) they admittedly are the biological parents of AAA, BBB, and CCC, who were
all minors when the crimes against them were committed;
(b) they made their children perform acts of cybersex for different foreigner
customers, and thus, engaged them in prostitution and pornography;
(c) they received various amounts of money in exchange for the sexual
exploitation of their children; and
(d) they achieved their criminal design by taking advantage of their children's
vulnerability as minors and deceiving them that the money they make from their lewd
shows are needed for the family's daily sustenance.
In the same manner, the courts a quo likewise correctly convicted XXX of one (1) count
of the same crime, this time under Section 4 (a) in relation to Section 6 (a) and (d) of RA 9208,
as it was shown that XXX transported and provided her own minor biological child, AAA,
to a foreigner in Makati City for the purpose of prostitution, again under the pretext that
the money acquired from such illicit transaction is needed for their family's daily
sustenance.
23.Q. Are violations of R.A. No. 9208, otherwise known as the Anti-Trafficking in
Persons Act of 2003, involve public interest?
23.A. Yes. In Young vs. People (783 SCRA 286, 3 February 2016)(First Division)
[Perlas-Bernabe, J.](Assailed in this petition for review on certiorari are the Decision and the
Resolution of the Court of Appeals which reversed and set aside the Order of the Regional
Trial Court of Cebu City, Branch 22 in Criminal Case No. CBU-96106, finding probable cause to
indict petitioners Vinson D. Young a.k.a. Benzon Ong (Vinson) and Benny Young a.k.a. Benny
Ong (Benny; collectively, petitioners) for violation of Sections 4 (a) and (e) in relation to
Sections 6 (a) and (c) of Republic Act No. 9208, otherwise known as the Anti-Trafficking in
Persons Act of 2003.)(The SC affirmed the ruling of the CA that the RTC gravely abuse its
discretion when it dismissed the case), the High Court held that: Violations of RA 9208, or the
Anti-Trafficking in Persons Act of 2003 involves public interest as it imputes, a crime so
abhorrent and reprehensible that is characterized by sexual violence and slavery.
Accordingly, direct resort to a certiorari petition sans a motion for reconsideration is clearly
sanctioned in this case.
IN CRIMINAL LAW
ANTI-VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ACT OF 2004 (SECS. 3, 5, AND
26, RA 9262)
24.Q. What does economic abuse mean?
24.A. In the case of Melgar vs. People (G.R. No. 223477, 14 February 2018)(Second
Division)[Perlas-Bernabe, J.], it was held that: Section 3 (D) and (E) of R.A. No. 9262 provides
that:
SECTION 3. Definition of Terms.–xxx.
Economic abuse refers to acts that make or attempt to make a woman

financially dependent which includes, but is not limited to the following:
1. withdrawal of financial support or preventing the victim from

engaging in any legitimate profession, occupation, business or activity, except
in cases wherein the other spouse/partner objects on valid, serious and moral
grounds as defined in Article 73 of the Family Code;
2. deprivation or threat of deprivation of financial resources and

the right to the use and enjoyment of the conjugal, community or property
owned in common;
3. destroying household property;
4. controlling the victim's own money or properties or solely

controlling the conjugal money or properties.
xxxx
As may be gathered from the foregoing, economic abuse may include the deprivation
of support of a common child of the man-accused and the woman-victim, whether such
common child is legitimate or not.
This specific act is penalized by Section 5 (e) of RA 9262, pertinent portions of which
read:
SECTION 5. Acts of Violence Against Women and Their Children.–

The crime of violence against women and their children is committed through
any of the following acts:
xxxx
(e) Attempting to compel or compelling the woman or her child to

engage in conduct which the woman or her child has the right to desist from
or to desist from conduct which the woman or her child has the right to
engage in, or attempting to restrict or restricting the woman's or her child's
freedom of movement or conduct by force or threat of force, physical or other
harm or threat of physical or other harm, or intimidation directed against the
woman or child. This shall include, but not limited to, the following acts
committed with the purpose or effect of controlling or restricting the woman's
or her child's movement or conduct:
xxxx
(2) Depriving or threatening to deprive the woman or her children

of financial support legally due her or her family, or deliberately providing the
woman's children insufficient financial support;
(3) Depriving or threatening to deprive the woman or her child of a

legal right;
xxxx
IN CRIMINAL LAW
Under this provision, the deprivation or denial of financial support to the child is
considered an act of violence against women and children. Notably, case law instructs that
the act of denying support to a child is a continuing offense.
In Melgar, the Supreme Court affirmed with modification the conviction of the
accused. It held that: In this case, the courts a quo correctly found that all the elements of
violation of Section 5(e) of RA 9262 are present, as it was established that:
(a) Melgar and AAA had a romantic relationship, resulting in BBB's birth;
(b) Melgar freely acknowledged his paternity over BBB;
(c) Melgar had failed to provide BBB support ever since the latter was just a year
old; and
(d) his intent of not supporting BBB was made more apparent when he sold to a
third party his property which was supposed to answer for, among others, his support-in-
arrears to BBB.
Thus, the Court finds no reason to deviate from the factual findings of the trial court, as
affirmed by the CA, as there is no indication that it overlooked, misunderstood or misapplied
the surrounding facts and circumstances of the case. In fact, the trial court was in the best
position to assess and detennine the credibility of the witnesses presented by both parties
and, hence, due deference should be accorded to the same.
25.Q. For alleged violations of R.A. No. 9262, what is required of the respondent
upon receipt of the petition?
25.A. In Garcia vs. Drilon (699 SCRA 352, 25 June 2013)(En Banc)[Perlas-Bernabe,
J.],20 the High Court held that: Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence
Against Women and Their Children, lays down a new kind of procedure requiring the
respondent to file an opposition to the petition and not an answer. Thus:
SEC. 20. Opposition to petition. – (a) The respondent may file an

opposition to the petition which he himself shall verify. It must be
accompanied by the affidavits of witnesses and shall show cause why a
temporary or permanent protection order should not be issued.
(b) Respondent shall not include in the opposition any

counterclaim, cross-claim or third-party complaint, but any cause of action
which could be the subject thereof may be litigated in a separate civil action.
26.Q. If the Family Court issued a Temporary Protection Order (TPO) for thirty
(30) days and the same is about to expire, can it be extended? Explain.
26.A. Yes. To obviate potential dangers that may arise concomitant to the
conduct of a hearing when necessary, Section 26(b) of A.M. No. 04-10-11-SC provides that if
a temporary protection order issued is due to expire, the trial court may extend or renew
the said order for a period of thirty (30) days each time until final judgment is rendered. It
may likewise modify the extended or renewed temporary protection order as may be
necessary to meet the needs of the parties. With the private respondent given ample
protection, petitioner could proceed to litigate the constitutional issues, without necessarily
running afoul of the very purpose for the adoption of the rules on summary procedure.
27.Q. Can the appellate court issue a TRO against a respondent who alleges that
R.A. No. 9262 is unconstitutional? Explain.
27.A. No. As the rules stand, a review of the case by appeal or certiorari before
judgment is prohibited. Moreover, if the appeal of a judgment granting permanent
protection shall not stay its enforcement, with more reason that a TPO, which is valid only
for thirty (30) days at a time, should not be enjoined.
20
The SC upheld the Constitutionality of R.A. No. 9262 and held that: We reiterate here Justice Puno's observation
that the history of the women's movement against domestic violence shows that one of its most difficult struggles
was the fight against the violence of law itself. If we keep that in mind, law will not again be a hindrance to the
struggle of women for equality but will be its fulfillment. Accordingly, the constitutionality of R.A. 9262 is, as it
should be, sustained.
IN CRIMINAL LAW
The mere fact that a statute is alleged to be unconstitutional or invalid, does not of
itself entitle a litigant to have the same enjoined. In Younger vs. Harris, Jr., the Supreme
Court of the United States declared, thus:
Federal injunctions against state criminal statutes, either in their

entirety or with respect to their separate and distinct prohibitions, are not to
be granted as a matter of course, even if such statutes are unconstitutional. No
citizen or member of the community is immune from prosecution, in good faith,
for his alleged criminal acts. The imminence of such a prosecution even though
alleged to be unauthorized and, hence, unlawful is not alone ground for relief
in equity which exerts its extraordinary powers only to prevent irreparable
injury to the plaintiff who seeks its aid.
The sole objective of injunctions is to preserve the status quo until the trial court hears
fully the merits of the case. It bears stressing, however, that protection orders are granted ex
parte so as to protect women and their children from acts of violence. To issue an injunction
against such orders will defeat the very purpose of the law against VAWC.
28.Q. What is the purpose of the enactment of R.A. No. 9262? Explain.
28.A. The enactment of R.A. 9262 aims to address the discrimination brought
about by biases and prejudices against women. As emphasized by the CEDAW Committee
on the Elimination of Discrimination against Women, addressing or correcting discrimination
through specific measures focused on women does not discriminate against men. Thus, in
Garcia vs. Drilon supra, the High Court said that: the petitioner's contention, therefore, that
R.A. 9262 is discriminatory and that it is an anti-male, husband-bashing, and hate-men law
deserves scant consideration. As a State Party to the CEDAW, the Philippines bound itself to
take all appropriate measures to modify the social and cultural patterns of conduct of men and
women, with a view to achieving the elimination of prejudices and customary and all other
practices which are based on the idea of the inferiority or the superiority of either of the sexes
or on stereotyped roles for men and women. Justice Puno correctly pointed out that the
paradigm shift changing the character of domestic violence from a private affair to a public
offense will require the development of a distinct mindset on the part of the police, the
prosecution and the judges.
29.Q. Does the principle of conspiracy apply in violations of R.A. No. 9262?
29.A. Yes. VAWC may likewise be committed against a woman with whom the
person has or had a sexual or dating relationship. Clearly, the use of the gender-neutral word
person who has or had a sexual or dating relationship with the woman encompasses even
lesbian relationships. Moreover, while the law provides that the offender be related or
connected to the victim by marriage, former marriage, or a sexual or dating relationship, it
does not preclude the application of the principle of conspiracy under the Revised Penal Code
(RPC).
Thus, in the case of Go-Tan vs. Spouses Tan,21 the parents-in-law of Sharica Mari L.
Go-Tan, the victim, were held to be proper respondents in the case filed by the latter upon
the allegation that they and their son (Go-Tan's husband) had community of design and
purpose in tormenting her by giving her insufficient financial support; harassing and
pressuring her to be ejected from the family home; and in repeatedly abusing her verbally,
emotionally, mentally and physically.
30.Q. What is a Protection Order? Explain.
30.A. A protection order is an order issued to prevent further acts of violence

against women and their children, their family or household members, and to grant other
necessary reliefs. Its purpose is to safeguard the offended parties from further harm, minimize
any disruption in their daily life and facilitate the opportunity and ability to regain control of
their life.
The scope of reliefs in protection orders is broadened to ensure that the victim or
offended party is afforded all the remedies necessary to curtail access by a perpetrator to the
victim. This serves to safeguard the victim from greater risk of violence; to accord the victim
and any designated family or household member safety in the family residence, and to prevent
21
567 SCRA 231 (30 September 2008).
IN CRIMINAL LAW
the perpetrator from committing acts that jeopardize the employment and support of the
victim. It also enables the court to award temporary custody of minor children to protect the
children from violence, to prevent their abduction by the perpetrator and to ensure their
financial support.
The rules require that petitions for protection order be in writing, signed and verified
by the petitioner thereby undertaking full responsibility, criminal or civil, for every allegation
therein. Since time is of the essence in cases of VAWC if further violence is to be prevented,
the court is authorized to issue ex parte a TPO after raffle but before notice and hearing when
the life, limb or property of the victim is in jeopardy and there is reasonable ground to believe
that the order is necessary to protect the victim from the immediate and imminent danger of
VAWC or to prevent such violence, which is about to recur.
31.Q. What constitutes the act of VAWC? Explain.
31.A. In the case of Dabalos vs. RTC, Branch 59, Angeles City (Pampanga)(G.R.
No. 193960, 7 January 2013)(Second Division)[Perlas-Bernabe, J.], the High Court quoted the
provision of Sec. 3(a) of RA 9262 as follows:
SEC. 3. Definition of Terms. – As used in this Act, (a) Violence against women and
their children refers to any act or a series of acts committed by any person against a
woman who is his wife, former wife, or against a woman with whom the person has or had
a sexual or dating relationship, or with whom he has a common child, or against her child
whether legitimate or illegitimate, within or without the family abode, which result in or is
likely to result in physical, sexual, psychological harm or suffering, or economic abuse
including threats of such acts, battery, assault, coercion, harassment or arbitrary
deprivation of liberty.
32.Q. What are the elements of VAWC through harassment?
A. In Ang vs. Court of Appeals,22 the Court enumerated the elements of the crime
of violence against women through harassment, to wit:
1. The offender has or had a sexual or dating relationship with

the offended woman;
2. The offender, by himself or through another, commits an act or

series of acts of harassment against the woman; and
3. The harassment alarms or causes substantial emotional or

psychological distress to her.
Notably, while it is required that the offender has or had a sexual or dating
relationship with the offended woman, for RA 9262 to be applicable, it is not indispensable
that the act of violence be a consequence of such relationship. Nowhere in the law can such
limitation be inferred. Hence, applying the rule on statutory construction that when the law
does not distinguish, neither should the courts, then, clearly, the punishable acts refer to all
acts of violence against women with whom the offender has or had a sexual or dating
relationship. It is immaterial whether the relationship had ceased for as long as there is
sufficient evidence showing the past or present existence of such relationship between the
offender and the victim when the physical harm was committed.
Neither can the Court construe the statute in favor of petitioner using the rule of
lenity because there is no ambiguity in RA 9262 that would necessitate any construction.
While the degree of physical harm under RA 9262 and Article 266 of the Revised Penal Code
are the same, there is sufficient justification for prescribing a higher penalty for the former.
Clearly, the legislative intent is to purposely impose a more severe sanction on the offenders
whose violent act/s physically harm women with whom they have or had a sexual or dating
relationship, and/or their children with the end in view of promoting the protection of women
and children.
22
618 SCRA 592 (20 April 2010).
IN CRIMINAL LAW
COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002 (SECS. 5, 11, 15, AND 21, RA 9165,
AS AMENDED BY RA 10640)
ILLEGAL TRADING OF DANGEROUS DRUGS; THE CRIME OF ILLEGAL TRAFFICKING

EMBRACES VARIOUS OTHER OFFENSES PUNISHABLE BY R.A. NO. 9165
33.Q. What does Illegal trafficking embraces?
33.A. In De Lima vs. Guerrero (843 SCRA 1, 10 October 2017)(En Banc)[Velasco,

Jr., J.], the High Court held that: The crime of illegal trafficking embraces various other
offenses punishable by RA 9165. Section 3(r) of RA 9165 provides:
(r) Illegal Trafficking.–The illegal cultivation, culture, delivery,

administration, dispensation, manufacture, sale, trading, transportation,
distribution, importation, exportation and possession of any dangerous
drug and/or controlled precursor and essential chemical.
In turn, the crimes included in the definition of Illegal Trafficking of drugs are defined
as follows:
(a) Administer. – Any act of introducing any dangerous drug into

the body of any person, with or without his/her knowledge, by injection,
inhalation, ingestion or other means, or of committing any act of indispensable
assistance to a person in administering a dangerous drug to himself/herself
unless administered by a duly licensed practitioner for purposes of medication.
xxxx
(d) Chemical Diversion. – The sale, distribution, supply or

transport of legitimately imported, in-transit, manufactured or procured
controlled precursors and essential chemicals, in diluted, mixtures or in
concentrated form, to any person or entity engaged in the manufacture of any
dangerous drug, and shall include packaging, repackaging, labeling,
relabeling or concealment of such transaction through fraud, destruction of
documents, fraudulent use of permits, misdeclaration, use of front companies
or mail fraud.
xxxx
(i) Cultivate or Culture. – Any act of knowingly planting,

growing, raising, or permitting the planting, growing or raising of any plant
which is the source of a dangerous drug.
xxxx
(k) Deliver. – Any act of knowingly passing a dangerous drug to

another, personally or otherwise, and by any means, with or without
consideration.
xxxx
(m) Dispense. – Any act of giving away, selling or distributing

medicine or any dangerous drug with or without the use of prescription.
xxxx
(u) Manufacture. – The production, preparation, compounding or

processing of any dangerous drug and/or controlled precursor and essential
chemical, either directly or indirectly or by extraction from substances of
natural origin, or independently by means of chemical synthesis or by a
combination of extraction and chemical synthesis, and shall include any
packaging or repackaging of such substances, design or configuration of its
form, or labeling or relabeling of its container; except that such terms do not
include the preparation, compounding, packaging or labeling of a drug or other
substances by a duly authorized practitioner as an incident to his/her
administration or dispensation of such drug or substance in the course of
IN CRIMINAL LAW
his/her professional practice including research, teaching and chemical

analysis of dangerous drugs or such substances that are not intended for sale
or for any other purpose.
xxxx
(kk) Use. – Any act of injecting, intravenously or intramuscularly, of

consuming, either by chewing, smoking, sniffing, eating, swallowing, drinking
or otherwise introducing into the physiological system of the body, any of the
dangerous drugs.
34.Q. In the prosecution for Illegal Trading of drugs is it required that the
elements of Illegal Sale be present?
34.A. No. With the complexity of the operations involved in Illegal Trading of drugs,
as recognized and defined in RA 9165, it will be quite myopic and restrictive to require the
elements of Illegal Sale-a mere component act-in the prosecution for Illegal Trading.
More so, that which qualifies the crime of Illegal Trafficking to Illegal Trading may
make it impossible to provide the details of the elements of Illegal Sale. By using electronic
devices such as, but not limited to, text messages, email, mobile or landlines, two-way radios,
internet, instant messengers and chat rooms, the Illegal Trading can be remotely perpetrated
away from where the drugs are actually being sold; away from the subject of the illegal sale.
With the proliferation of digital technology coupled with ride sharing and delivery services,
Illegal Trading under RA 9165 can be committed without getting one's hand on the substances
or knowing and meeting the seller or buyer. To require the elements of Illegal Sale (the
identities of the buyer, seller, the object and consideration, in Illegal Trade) would be
impractical.
35.Q. What is required in the prosecution for illegal trading of drugs to prosper?
35.A. For the prosecution of Illegal Trading of drugs to prosper, proof that the
accused acted as a broker or brought together the buyer and seller of illegal drugs using
electronic devices such as, but not limited to, text messages, e-mail, mobile or landlines,
two-way radios, internet, instant messengers and chat rooms is sufficient.
In some cases, this Court even acknowledged persons as brokers even where they
actually took no part in the negotiations, never saw the customer. 23 For the Court, the primary
occupation of a broker is simply bringing the buyer and the seller together, even if no sale is
eventually made.24 Hence, in indictments for Illegal Trading, it is illogical to require the
elements of Illegal Sale of drugs, such as the identities of the buyer and the seller, the
object and consideration.25
The DOJ's designation of the charge as one for Illegal Drug Trading thus holds sway.
After all, the prosecution is vested with a wide range of discretion-including the discretion of
whether, what, and whom to charge.26 The exercise of this discretion depends on a
smorgasboard of factors, which are best appreciated by the prosecutors.
SALE, TRADING, ADMINISTRATION, DISPENSATION, DELIVERY, DISTRIBUTION AND

TRANSPORTATION OF DANGEROUS DRUGS AND/OR CONTROLLED PRECURSORS AND
ESSENTIAL CHEMICALS (SECTION 5, R.A. NO. 9165)
36.Q. What are the elements of Illegal Sale of dangerous drugs?
1. People of the Philippines vs. Paz (G.R. No. 229512, 31 January 2018) (Second
Division)[Perlas-Bernabe, J.](The Regional Trial Court of Pasig City, Branch 151 convicted the
accused for violation of Sections 5 and 11, Article II of Republic Act No. 9165, otherwise known
as the Comprehensive Dangerous Drugs Act of 2002. However, the accused was acquitted by
23
Medrano vs. Court of Appeals, 492 Phil. 222 (2005), citing Wickersham vs. T. D. Harris, 313 F.2d 468 (1963).
24
Id., citing Tan vs. Spouses Gullas, 441 Phil. 622 (2002).
25
People vs. Marcelino, Jr., 667 Phil. 495 (2011).
26
People vs. Peralta, 435 Phil. 743 (2002). See also Gonzales vs. Hongkong and Shanghai Bank, G.R. No. 164904 (19
October 2007); People vs. Sy, 438 Phil. 383 (2002).
IN CRIMINAL LAW
the Supreme Court for failure of the prosecution to do its task to prove compliance with the
procedure set forth in Section 21 of RA 9165, as amended.)
2. People vs. Calibod (845 SCRA 370, 20 November 2017)(Second Division)

[Perlas-Bernabe, J.]
3. People vs. Ceralde (834 SCRA 613, 7 August 2017)(First Division)[Perlas-

Bernabe, J.],27 the High Court held that: The offense of illegal sale of dangerous drugs has the
following elements:
(1) identities of the buyer and seller, object, and consideration of the sale; and
(2) delivery of the thing sold and the payment therefor.28
What is material to the prosecution for illegal sale of dangerous drugs is the proof that
the transaction or sale actually occurred, coupled with the presentation in court of the
substance seized as evidence.29
37.Q. In Illegal Sale and Possession of Dangerous Drugs, like shabu, what is
incumbent to the prosecution to prove? Explain.
1. People vs. Ching (842 SCRA 280, 9 October 2017)(Second Divison)[Perlas-

Bernabe, J.](Accused was acquitted for violations of Sec, 5, 11 and 12 of R.A. No. 9165.)
2. People vs. Geronimo, 839 SCRA 336, 11 September 2017)(Second

Division)[Perlas-Bernabe, J.],30 the High Court ruled that: In both circumstances, the
prosecution must:
1) Prove with moral certainty the identity of the prohibited drug, considering
that the dangerous drug itself forms an integral part of the corpus delicti of the crime.
2) The prosecution has to show an unbroken chain of custody over the

dangerous drugs so as to obviate any unnecessary doubts on the identity of the dangerous
drugs on account of switching, planting, or contamination of evidence.
3) The prosecution must be able to account for each link of the chain of custody
from the moment that the illegal drugs are seized up to their presentation in court as
evidence of the crime.31
COMPLIANCE WITH SECTION 21, R.A. NO. 9165
In this regard, Section 21, Article II of RA 9165 outlines the procedure which the police
officers must follow when handling the seized drugs in order to preserve their integrity and
evidentiary value.32
Under the said provision the apprehending team shall, among others, immediately
after seizure and confiscation:
1. Conduct a physical inventory;
27
Accused was acquitted for violations of Section 5 and 11 of R.A. No. 9165. Reason: There was no justification why
there was no compliance with Section 21 of R.A. No. 9165.
28
People vs. Lorenzo, 633 Phil. 393 (2010); People vs. Sumili, 753 Phil. 342 (2015).
29
People vs. Alberto, 611 SCRA 706 (5 February 2010); See also People vs. Abenes, 796 SCRA 56 (7 July 2016); People
vs. Cunanan, 753 SCRA 275 (16 March 2015); People vs. Nepomuceno, 750 SCRA 209 (9 February 2015); People vs.
Opiana, 745 SCRA 144 (12 January 2015); People vs. Dela Cruz, 743 SCRA 667 (3 December 2014); People vs. Baturi,
734 SCRA 55 (1 September 2014); People vs. Marcelo, 733 SCRA 223 (18 August 2014); People vs. Montevirgen, 712
SCRA 459 (11 December 2013); People vs. Gonzaga, 632 SCRA 551 (11 October 2010); People vs. Berdadero, 622
SCRA 196 (29 June 2010).
30
Acquitted for violations of Sections 5 and 11, Article II of Republic Act No. 9165, due to non-compliance with
Section 21.
31
See People vs. Viterbo, 739 Phil. 593 (2014); See also People vs. Alivio, 664 Phil. 565 (2011) and People vs. Denoman,
612 Phil. 1165 (2009).
32
People vs. Sumili, 753 Phil. 342 (2015).
IN CRIMINAL LAW
2. Photograph the seized items in the presence of the accused or the person
from whom the items were seized;
3. His representative or counsel;
4. A representative from the media;
5. The DOJ;
6. Any elected public official;
7. Who shall be required to sign the copies of the inventory and be given a
copy of the same;
8. The seized drugs must be turned over to the Philippine National Police
(PNP) Crime Laboratory within twenty-four (24) hours from confiscation for examination.33
In the case of People v. Mendoza,34 the Court stressed that without the insulating
presence of the representative from the media or the DOJ, or any elected public official
during the seizure and marking of the seized drugs, the evils of switching, 'planting' or
contamination of the evidence that had tainted the buy-busts conducted under the regime of
RA 6425 (Dangerous Drugs Act of 1972) again reared their ugly heads as to negate the
integrity and credibility of the seizure and confiscation of the said drugs that were
evidence herein of the corpus delicti, and thus adversely affected the trustworthiness of
the incrimination of the accused. Indeed, the presence of such witnesses would have
preserved an unbroken chain of custody.
The Court, however, clarified that under varied field conditions, strict compliance with
the requirements of Section 21, Article II of RA 9165 may not always be possible.35
In fact, the Implementing Rules and Regulations (IRR) of RA 9165 - which is now
crystallized into statutory law with the passage of RA 10640 36 - provide that the said
inventory and photography may be conducted at the nearest police station or office of the
apprehending team in instances of warrantless seizure, and that non-compliance with the
requirements of Section 21, Article II of RA 9165 - under justifiable grounds - will not
render void and invalid the seizure and custody over the seized items so long as the
integrity and evidentiary value of the seized items are properly preserved by the
apprehending officer or team.37
38.Q. Does the non-compliance with Section 21 of R.A. No. 9165 renders void and
invalid the seizure and custody over the seized items?
38.A. No. In the following cases:
33
See Section 21 (1) and (2), Article II of RA 9165.
34
736 Phil. 749 (2014).
35
See People vs. Sanchez, 590 Phil. 214 (2008).
36
An Act to Further Strengthen the Anti-Drug Campaign of the Government, Amending for the Purpose Section 21 of
Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, approved on 15
July 2014, Section 1 of which states: Section 1. Section 21 of Republic Act No. 9165, otherwise known as the
Comprehensive Dangerous Drugs Act of2002," is hereby amended to read as follows:
SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant
Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/ Paraphernalia and/or
Laboratory Equipment. — The PDEA shall take charge and have custody of all dangerous drugs, plant sources of
dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or
laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:
(1) The apprehending team having initial custody and control of the dangerous drugs, controlled precursors
and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure
and confiscation, conduct a physical inventory of the seized items and photograph the same in the presence of the
accused or the persons from whom such items were confiscated and/or seized, or his/her representative or
counsel, with an elected public official and a representative of the National Prosecution Service or the media who
shall be required to sign the copies of the inventory and be given a copy thereof: Provided, That the physical
inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest
police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of
warrantless seizures: Provided, finally, That non-compliance of these requirements under justifiable grounds, as
long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending
officer/team, shall not render void and invalid such seizures and custody over said items. x x x x
37
See Section 21 (a), Article II of the IRR of RA 9165. See People vs. Ceralde, G.R. No. 228894 (7 August 2017).
IN CRIMINAL LAW
1. People vs. Geronimo (839 SCRA 336, 11 September 2017)(Second

2. People vs. Goco (806 SCRA 240, 17 October 2017)(First Division)[Perlas-

Bernabe, J.], the High Court held that: R.A. No. 10640 provides that the said inventory and
photography may be conducted at the nearest police station or office of the apprehending
team in instances of warrantless seizure, and that non-compliance with the requirements
of Section 21 of RA 9165 - under justifiable grounds -will not render void and invalid the
seizure and custody over the seized items so long as the integrity and evidentiary value of
the seized items are properly preserved by the apprehending officer or team.38 In other
words, the failure of the apprehending team to strictly comply with the procedure laid out in
Section 21 of RA 9165 and its IRR does not ipso facto render the seizure and custody over the
items void and invalid, provided that the prosecution satisfactorily proves that:
(a) there is justifiable ground for non-compliance; and
(b) the integrity and evidentiary value of the seized items are properly
preserved.39
In People vs. Almorfe,40 the Court explained that for the above-saving clause to
apply, the prosecution must explain the reasons behind the procedural lapses, and that the
integrity and value of the seized evidence had nonetheless been preserved.41
Also, in People vs. De Guzman,42 it was emphasized that the justifiable ground for
non-compliance must be proven as a fact, because the Court cannot presume what these
grounds are or that they even exist.
TRANSPORTING OF DANGEROUS DRUGS
39.Q. What does transport means under R.A. No. 9165? Explain.
39.A. In the case of People vs. Laba (689 SCRA 367, 28 January 2013)(Second
Division)[Perlas-Bernabe, J.], where the SC affirmed the conviction of the accused for
violation of Section 5, the High Court ruled that: Transport as used under the Dangerous Drugs
Act is defined to mean to carry or convey from one place to another. The essential element
of the charge is the movement of the dangerous drug from one place to another.43
In People vs. Laba supra, appellant was apprehended inside the airport, as he was
intending to board his flight bound for Davao City with a substantial amount or 196.63 grams
of methylamphetamine hydrochloride or shabu in his possession, concealed in separate plastic
bags inside his oversized Spicer rubber shoes. While it may be argued that appellant was yet
to board the aircraft or travel some distance with the illegal drugs in his possession, it
cannot be denied that his presence at the airport at that particular instance was for the
purpose of transporting or moving the dangerous drugs from one place to another.
POSSESSION OF DANGEROUS DRUGS (SECTION 11, R.A. NO. 9165)
40.Q. What are the essential elements of illegal possession of Dangerous Drugs?
1. People vs. Ching (842 SCRA 280, 9 October 2017)(Second Division)[Perlas-

Bernabe, J.]
2. Miguel vs. People (833 SCRA 440, 31 July 2017)(First Division)[Perlas-

Bernabe, J.], it was held that: The essential elements in illegal possession of dangerous drugs
are:
(1) the accused is in possession of an item or object that is identified to be a

prohibited drug;
38
See Section 21 (a), Article II of the IRR of RA 9165.
39
People vs. Goco, G.R. No. 219584 (17 October 2016).
40
631 Phil. 51 (2010).
41
631 Phil. 51 (2010).
42
630 Phil. 637 (2010).
43
San Juan vs. People, 649 SCRA 300 (30 May 2011), citing People vs. Del Mundo, 366 SCRA 471 (2 October 2001).
IN CRIMINAL LAW
(2) such possession is not authorized by law; and
(3) the accused freely and consciously possess the said drug. 44
CULTIVATION OR CULTURE OF PLANTS CLASSIFIED AS DANGEROUS DRUGS OR ARE

SOURCES THEREOF (SECTION 16, R.A. NO. 9165)
PROBLEM:
Elmer Payra was involved in a mauling incident when struck Anthony Tavern with a
piece of wood. The incident was investigated upon by the Police of the MunicIpality of
Sampaga. The Chief of Police P/Insp. Amorky Santosa learned from Tavern that Payra has a
Marijuana Plantation at Sitio Pulong Buhangin.
During the investigation, it was revealed that prior to the mauling incident, Tavern
already knew about the marijuana Plantation. It was in fact the reason why he was mauled by
Payra.
P/C Insp. Santosa, together with his men proceeded to the place of Payra and therein,
search his house and his backyard. Thereafter, they found out that there was indeed
Marijuana Plantation. They arrested Payra on the precept that the arrest was related to the
mauling incident and invoked the plain view doctrine when they discovered the plantation.
A case for violation of Section 16, R.A. No. 9165 was filed against Payra in the RTC of
Sampaga by the Public Prosecutor. Payra interposed the defense that the discovered
Marijuana Plantation was not a product of plain view but in fact inadmissible as evidence as it
was the fruit of a poisonous tree?
41.Q. Can the discovery of the marijuana plantation be considered as an

exception to a warrantless arrest which is the plain view doctrine? Explain.
41.A. No. In People vs. Acosta (G.R. No. 238865, 28 January 2019)(Second
Division)[Perlas-Bernabe, J.], a case with similar factual milieu in the problem, the High Court
held that: Section 2,45 Article III of the 1987 Constitution mandates that a search and seizure
must be carried out through or on the strength of a judicial warrant predicated upon the
existence of probable cause, absent which, such search and seizure become unreasonable
within the meaning of said constitutional provision. To protect the people from
unreasonable searches and seizures, Section 3(2), 46 Article III of the 1987 Constitution provides
that evidence obtained from unreasonable searches and seizures shall be inadmissible in
evidence for any purpose in any proceeding. In other words, evidence obtained and
confiscated on the occasion of such unreasonable searches and seizures are deemed tainted
and should be excluded for being the proverbial fruit of a poisonous tree. 47
One of the recognized exceptions to the need of a warrant before a search may be
effected is when the plain view doctrine is applicable. In People vs. Lagman,48 the Supreme
Court laid down the following parameters for its application:
Objects falling in plain view of an officer who has a right to be in a position to have
that view are subject to seizure even without a search warrant and may be introduced in
evidence. The plain view doctrine applies when the following requisites concur:
(a) the law enforcement officer in search of the evidence has a prior justification
for an intrusion or is in a position from which he can view a particular area;
44
People vs. Sembrano, 628 SCRA 328 (16 August 2010); People vs. Bio, 753 Phil. 730 (2015); Rebellion vs. People, 623
SCRA 343 (5 July 2010); See also Tionco vs. People, 752 SCRA 589 (11 March 2015); People vs. Bio, 750 SCRA 572
(16 February 2015); People vs. Eyam, 686 SCRA 408 (26 November 2012).
45
Section 2, Article III of the 1987 Constitution states:
Section 2. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.
46
Section 3 (2), Article III of the 1987 Constitution states:
Section 3. x x x.
(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose
in any proceeding.
47
Sindac vs. People, 794 Phil. 421 (2016).
48
593 Phil. 617 (2008).
IN CRIMINAL LAW
(b) the discovery of evidence in plain view is inadvertent;
(c) it is immediately apparent to the officer that the item he observes may be
evidence of a crime, contraband or otherwise subject to seizure.
The law enforcement officer must lawfully make an initial intrusion or properly be in a
position from which he can particularly view the area. In the course of such lawful intrusion,
he came inadvertently across a piece of evidence incriminating the accused. The object must
be open to eye and hand and its discovery inadvertent.49
In this case, the first and third requisites were not seriously contested by Payra.
Instead, he argues that the second requisite is absent since the discovery of the police officers
of the marijuana plants was not inadvertent as it was prompted by Tavern.
In Acosta, the high court observed that: It is clear from Salucana's that he knew of
Acosta's illegal activities even prior to the mauling incident. In fact, it may be reasonably
inferred that the mauling incident had something to do with Acosta's planting of marijuana. It
is also clear that Salucana apprised the police officers of the illegal planting and cultivation of
the marijuana plants when he reported the mauling incident. Thus, when the police officers
proceeded to Acosta's abode, they were already alerted to the fact that there could possibly
be marijuana plants in the area. This belies the argument that the discovery of the plants
was inadvertent. In People vs. Valdez,50 the high court held that the plain view doctrine
cannot apply if the officers are actually searching for evidence against the accused, to wit:
Note further that the police team was dispatched to appellant's kaingin precisely to search for
and uproot the prohibited flora. The seizure of evidence in plain view applies only where the
police officer is not searching for evidence against the accused, but inadvertently comes
across an incriminating object. Clearly, their discovery of the cannabis plants was not
inadvertent. We also note the testimony of SPO2 Tipay that upon arriving at the area, they
first had to look around the area before they could spot the illegal plants. Patently, the seized
marijuana plants were not immediately apparent and a further search was needed. In sum,
the marijuana plants in question were not in plain view or open to eye and hand. The plain
view doctrine, thus, cannot be made to apply.
The discovery was inadvertent when the police officers already knew that there could
be marijuana plants in the area. Armed with such knowledge, they would naturally be more
circumspect in their observations. In effect, they proceeded to Acosta's abode, not only to
arrest him for the mauling incident, but also to verify Salucana's report that Acosta was
illegally planting marijuana. Thus, the second requisite for the plain view doctrine is absent.
Considering that the plain view doctrine is inapplicable to the present case, the seized
marijuana plants are inadmissible in evidence against Acosta for being fruits of the
poisonous tree.
42.Q. Was the defense of Payra tenable that the alleged discovery of the
marijuana plantation was the fruit of poisonous tree, hence, inadmissible as evidence?
Explain.
42.A. Yes. The marijuana plants seized from Payra constitute as inadmissible
evidence in violation of Section 3 (2), Article III of the 1987 Constitution,. Given that the
confiscated plants are the very corpus delicti of the crime charged, Payra should be absolved
of the crime charged.
CUSTODY AND DISPOSITION OF CONFISCATED, SEIZED, AND/OR SURRENDERED

DANGEROUS DRUGS, PLANT SOURCES OF DANGEROUS DRUGS, CONTROLLED
PRECURSORS AND ESSENTIAL CHEMICALS, INSTRUMENTS/PARAPHERNALIA AND/OR
LABORATORY EQUIPMENT (SECTION 21, R.A. NO. 9165)
43.Q. What is the post seizure procedure for the custody and disposition of seized
drugs?
43.A. In People vs. Medina (G.R. No. 225747, 5 December 2018)(Second Division)
[Perlas-Bernabe, J.] and 48 other cases, it was held that: Section 21, Article II of RA 9165
outlines the procedure which the police officers must follow when handling the seized drugs
49
People vs. Doria, 361 Phil. 595 (1999).
50
395 Phil. 206 (2000).
IN CRIMINAL LAW
in order to preserve their integrity and evidentiary value. 51 Under the said section, the
apprehending team shall, among others, immediately after seizure and confiscation conduct
a physical inventory and photograph the seized items in the presence of the accused or the
person from whom the items were seized, or his representative or counsel, a
representative from the media and the Department of Justice, and any elected public
official who shall be required to sign the copies of the inventory and be given a copy of the
same, and the seized drugs must be turned over to the PNP Crime Laboratory within twenty-
four (24) hours from confiscation for examination.52 In the case of People v. Mendoza,53 the
Court stressed that without the insulating presence of the representative from the media or
the Department of Justice, or any elected public official during the seizure and marking of
the seized drugs, the evils of switching, 'planting' or contamination of the evidence that
had tainted the buy-busts conducted under the regime of RA No. 6425 (Dangerous Drugs Act
of 1972) again reared their ugly heads as to negate the integrity and credibility of the
seizure and confiscation of the said drugs that were evidence herein of the corpus delicti,
and thus adversely affected the trustworthiness of the incrimination of the accused.
Indeed, the x x x presence of such witnesses would have preserved an unbroken chain of
custody.
Notably, the Court declared that while the chain of custody rule demands utmost
compliance from the police officers, strict adherence with the prescribed procedure may not
always be possible under varied field conditions. 54 In fact, the Implementing Rules and
Regulations (IRR) of RA 9165 - which is now crystallized into statutory law with the passage of
RA 1064055 provide that the requisite inventory and photography may be conducted at the
nearest police station or office of the apprehending team in instances of warrantless
seizure, and that non-compliance with the requirements of Section 21 of R.A. 9165 - under
justifiable grounds will not render void and invalid the seizure and custody over the
seized items so long as the integrity and evidentiary value of the seized items are properly
preserved by the apprehending officer or team.56 Simply put, the failure of the apprehending
team to strictly comply with the procedure laid out in Section 21 of RA 9165 and its IRR does
not ipso facto render the seizure and custody over the items as void and invalid, provided that
the prosecution satisfactorily proves that:
(a) there is justifiable ground for non-compliance; and
(b) the integrity and evidentiary value of the seized items are properly
preserved.57
In People vs. Almorfe,58 the Court explained that for the above-saving clause to
apply, the prosecution must explain the reasons behind the procedural lapses, and that the
integrity and value of the seized evidence had nonetheless been preserved. Moreover, in
People v. De Guzman,59 it was emphasized that the justifiable ground for non-compliance
51
People vs. Sumili, supra.
52
See Section 21 (1) and (2), Article II of RA 9165.
53
736 Phil. 749 (2014).
54
See People vs. Sanchez, 590 Phil. 214 (2008).
55
An Act to Further Strengthen the Anti-Drug Campaign of the Government, Amending for the Purpose Section 21 of
Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, approved on 15 July
2014, Section 1 of which states:
SECTION 1. Section 21 of Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs
Act of 2002", is hereby amended to read as follows:
SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant
Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or
Laboratory Equipment. - The PDEA shall take charge and have custody of all dangerous drugs, plant sources of
dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or
laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:
(1) The apprehending team having initial custody and control of the dangerous drugs, controlled precursors
and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure
and confiscation, conduct a physical inventory of the seized items and photograph the same in the presence of the
accused or the persons from whom such items were confiscated and/or seized, or his/her representative or
counsel, with an elected public official and a representative of the National Prosecution Service or the media who
shall be required to sign the copies of the inventory and be given a copy thereof Provided, That the physical
inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest
police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of
warrantless seizures: Provided, finally, That noncompliance of these requirements under justifiable grounds, as
long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending
officer/team, shall not render void and invalid such seizures and custody over said items.
xxxx
56
See Section 21 (a), Article II of the IRR of RA 9165.
57
See People vs. Goco, G.R. No. 219584 (17 October 2016).
58
631 Phil. 51 (2010).
59
630 Phil. 637 (2010).
IN CRIMINAL LAW
must be proven as a fact, because the Court cannot presume what these grounds are or
that they even exist.60
Due to non-compliance of the statutory provision of Section 21, R.A. No. 9165 as
amended and its IRR, Calibod was acquitted. the high court said: By and large, the plurality
of the breaches of procedure committed by the police officers, unacknowledged and
unexplained by the State, militates against a finding of guilt beyond reasonable doubt against
the accused, as the integrity and evidentiary value of the corpus delicti had been
compromised.61 It is well-settled that the procedure in Section 21 of RA 9165 is a matter of
substantive law, and cannot be brushed aside as a simple procedural technicality; or
worse, ignored as an impediment to the conviction of illegal drug suspects. 62 As such, since
the prosecution failed to provide justifiable grounds for non-compliance with Section 21 of
RA 9165, as amended by RA 10640, as well as its IRR, Calibod's acquittal is perforce in
order.
The Supreme Court through Madam Justice Perlas-Bernabe went on further to say
that: As a final note, it is fitting to mention that 'the Court strongly supports the campaign of
the government against drug addiction and commends the efforts of our law enforcement
officers against those who would inflict this malediction upon our people, especially the
susceptible youth. But as demanding as this campaign may be, it cannot be more so than the
compulsions of the Bill of Rights for the protection of liberty of every individual in the realm,
including the basest of criminals. The Constitution covers with the mantle of its protection the
innocent and the guilty alike against any manner of high-handedness from the authorities,
however praiseworthy their intentions. Those who are supposed to enforce the law are not
justified in disregarding the right of the individual in the name of order. For indeed, order is
too high a price for the loss of liberty.63
44.Q. What are the guidelines issued by the Supreme Court in case of violations
of Section 5 and 11 of R.A. No. 9165? Explain.
44.A. In the case of People vs. Romy Lim (G.R. No. 231989, 4 September 2018)(En
Banc)[Peralta, J.],64 the High Court pronounced that: In order to weed out early on from the
courts' already congested docket any orchestrated or poorly built up drug-related cases,
the following should henceforth be enforced as a mandatory policy:
1. In the sworn statements/ affidavits, the apprehending/seizing officers must

state their compliance with the requirements of Section 21 (1) of R.A. No. 9165, as
amended, and its IRR.
2. In case of non-observance of the provision, the apprehending/seizing officers

must state the justification or explanation therefor as well as the steps they have taken in
order to preserve the integrity and evidentiary value of the seized/confiscated items.
3. If there is no justification or explanation expressly declared in the sworn

statements or affidavits, the investigating fiscal must not immediately file the case before
the court. Instead, he or she must refer the case for further preliminary investigation in
order to determine the (non) existence of probable cause.
4. If the investigating fiscal filed the case despite such absence, the court may
exercise its discretion to either refuse to issue a commitment order (or warrant of arrest) or
dismiss the case outright for lack of probable cause in accordance with Section 5, 65 Rule
112, Rules of Court.
60
People vs. Nepomuceno, 750 SCRA 209 (9 February 2015); People vs. Salvador, 715 SCRA 617 (10 February 2014);
See also People vs. Araza, 740 SCRA 437 (17 November 2014); People vs. Aneslag, 686 SCRA 150 (21 November
2013); People vs. Pascua, 656 SCRA 629 (31 August 2011).
61
People vs. Sumili, supra.
62
People vs. Umipang, supra.
63
Bulauitan vs. People, G.R. No. 218891 (19 September 2016).
64
Accused was acquitted for violation of Section 11 and 5, R.A. No. 9165)(Evident, however, is the absence of an
elected public official and representatives of the DOJ and the media to witness the physical inventory and
photograph of the seized items.64 In fact, their signatures do not appear in the Inventory Receipt.
65
SEC. 5. When warrant of arrest may issue. -(a) By the Regional Trial Court. -Within ten (10) days from the filing of
the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting
evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause.
If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already
been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the
complaint or information was filed pursuant to Section 6 of this Rule. In case of doubt on the existence of probable
IN CRIMINAL LAW
CHAIN OF CUSTODY
45.Q. What is chain of custody? Explain.
45.A. Section 1(b) of Dangerous Drugs Board Regulation No. 1, Series of 2002,
which implements the law, defines chain of custody:
As the duly recorded authorized movements and custody of seized drugs or

controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each
stage, from the time of seizure/confiscation to receipt in the forensic laboratory to
safekeeping to presentation in court for destruction. Such record of movements and
custody of seized item shall include the identity and signature of the person who held
temporary custody of the seized item, the date and time when such transfer of custody
were made in the course of safekeeping and use in court as evidence, and the final
disposition.66
The chain of custody rule is but a variation of the principle that real evidence must be
authenticated prior to its admission into evidence. 67 To establish a chain of custody sufficient
to make evidence admissible, the proponent needs only to prove a rational basis from which
to conclude that the evidence is what the party claims it to be. 68
In other words, in a criminal case, the prosecution must offer sufficient evidence from
which the trier of fact could reasonably believe that an item still is what the government
claims it to be.69 Specifically in the prosecution of illegal drugs, the well-established federal
evidentiary rule in the United States is that when the evidence is not readily identifiable
and is susceptible to alteration by tampering or contamination, courts require a more
stringent foundation entailing a chain of custody of the item with sufficient
completeness to render it improbable that the original item has either been exchanged
with another or been contaminated or tampered with.70
This was adopted in Mallillin vs. People,71 where this Court also discussed how,
ideally, the chain of custody of seized items should be established:
As a method of authenticating evidence, the chain of custody rule requires that the
admission of an exhibit be preceded by evidence sufficient to support a finding that the matter
in question is what the proponent claims it to be. It would include testimony about every
link in the chain, from the moment the item was picked up to the time it is offered into
evidence, in such a way that every person who touched the exhibit would describe how
and from whom it was received, where it was and what happened to it while in the
witness' possession, the condition in which it was received and the condition in which it
was delivered to the next link in the chain. These witnesses would then describe the
precautions taken to ensure that there had been no change in the condition of the item and no
opportunity for someone not in the chain to have possession of the same.72
CHAIN OF CUSTODY LINKS
46.Q. What are the links to be established in the chain of custody? Explain
46.A. The links in the chain of custody that must be established are:
cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the
issue must be resolved by the court within thirty (30) days from the filing of the complaint of information.
66
See People vs. Badilla, 794 Phil. 263 (2016); People vs. Arenas, 791 Phil. 601 (2016); and Saraum vs. People, 779 Phil.
122 (2016).
67
United States vs. Rawlins, 606 F.3d 73 (2010).
68
United States vs. Rawlins, supra, as cited in United States vs. Mehmood, 2018 U.S. App. LEXIS 19232
(2018); United States vs. De Jesus-Concepcion, 652 Fed. Appx. 134 (2016); United States vs. Rodriguez, 2015 U.S.
Dist. LEXIS 35215 (2015); and United States vs. Mark, 2012 U.S. Dist. LEXIS 95130 (2012).
69
See United States vs. Rawlins, supra, as cited in United States vs. Mark, supra.
70
See United States vs. Cardenas, 864 F.2d 1528 (1989), as cited in United States vs. Yeley-Davis, 632 F.3d 673
(2011); United States vs. Solis, 55 F. Supp. 2d 1182 (1999); United States vs. Anderson, 1994 U.S. App. LEXIS 9193
(1994); United States vs. Hogg, 1993 U.S. App. LEXIS 13732 (1993); United States vs. Rodriguez-Garcia, 983 F.2d
1563 (1993); United States vs. Johnson, 977 F.2d 1360 (1992); and United States vs. Clonts,966 F.2d 1366 (1992).
71
576 Phil. 576 (2008).
72
Mallillin vs. People, supra, as cited in People vs. Tamano, 812 SCRA 203 (5 December 2016); People vs. Badilla,
supra; Saraum vs. People, supra; People vs. Dalawis, 772 Phil. 406 (2015); and People vs. Flores, 765 Phil. 535
(2015). It appears that Mallillin was erroneously cited as "Lopez vs. People" in People vs. De la Cruz, 589 Phil. 259
(2008); People vs. Sanchez, 590 Phil. 214 (2008); People vs. Garcia, 599 Phil. 416 (2009); People vs. Denoman, 612
Phil. 1165 (2009); and People vs. Abelarde, G.R. No. 215713 (22 January 2018).
IN CRIMINAL LAW
(1) the seizure and marking, if practicable, of the illegal drug recovered from the
accused by the apprehending officer;
(2) the turnover of the seized illegal drug by the apprehending officer to the
investigating officer;
(3) the turnover of the illegal drug by the investigating officer to the forensic
chemist for laboratory examination; and
(4) the turnover and submission of the illegal drug from the forensic chemist to
the court.73
47.Q. What does the provision of Section 21, R.A. No. 9165 and its IRR provides?
47.A. Section 21(1), Article II of R.A. No. 9165 states:
Sec. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered

Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential
Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. - The PDEA shall take
charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled
precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory
equipment so confiscated, seized and/or surrendered, for proper disposition in the following
manner:
(1) The apprehending team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph the same in
the presence of the accused or the person/s from whom such items were confiscated and/or
seized, or his/her representative or counsel, a representative from the media and the
Department of Justice (DOJ), and any elected public official who shall be required to sign the
copies of the inventory and be given a copy thereto.
Supplementing the above-quoted provision, Section 21(a) of the Implementing Rules

and Regulations of R.A. No. 9165 mandates:
(a) The apprehending officer/team having initial custody and control of the drugs
shall, immediately after seizure and confiscation, physically inventory and photograph the
same in the presence of the accused or the person/s from whom such items were confiscated
and/or seized, or his/her representative or counsel, a representative from the media and the
Department of Justice (DOJ), and any elected public official who shall be required to sign the
copies of the inventory and be given a copy thereof: Provided, that the physical inventory and
photograph shall be conducted at the place where the search warrant is served; or at the
nearest police station or at the nearest office of the apprehending officer/team, whichever is
practicable, in case of warrantless seizures; Provided, further, that non-compliance with these
requirements under justifiable grounds, as long as the integrity and the evidentiary value of
the seized items are properly preserved by the apprehending officer/team, shall not render
void and invalid such seizures of and custody over said items. 74
48.Q. What is the amendment to R.A. No. 9165 as regards to Chain of Custody?
Explain.
48.A. On July 15, 2014, R.A. No. 10640 was approved to amend R.A. No. 9165.
Among other modifications, it essentially incorporated the saving clause contained in the IRR,
thus:
(1) The apprehending team having initial custody and control of the dangerous
drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or
laboratory equipment shall, immediately after seizure and confiscation, conduct a physical
inventory of the seized items and photograph the same in the presence of the accused or
the person/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, with an elected public official and a representative of the
National Prosecution Service or the media who shall be required to sign the copies of the
inventory and be given a copy thereof:
73
People vs. Vicente Sipin y De Castro, supra; People vs. Amaro, 786 Phil. 139 (2016); and People vs. Enad, 780 Phil.
346 (2016).
74
See People vs. Sic-Open, 795 Phil. 859 (2016); People vs. Badilla, supra; People vs. De la Cruz, 783 Phil. 620
(2016); People vs. Asislo, 778 Phil. 509 (2016); People vs. Dalawis, supra; and People vs. Flores, supra.
IN CRIMINAL LAW
Provided, That the physical inventory and photograph shall be conducted at the place
where the search warrant is served; or at the nearest police station or at the nearest office
of the apprehending officer/team, whichever is practicable, in case of warrantless seizures:
Provided, finally, That noncompliance of these requirements under justifiable

grounds, as long as the integrity and the evidentiary value of the seized items are properly
preserved by the apprehending officer/team, shall not render void and invalid such
seizures and custody over said items.
49.Q. What are the instances that the physical inventory and photograph of the
seized items at the place of arrest may be excused? Explain.
49.A. In instances when the safety and security of the apprehending officers and the
witnesses required by law or of the items seized are threatened by immediate or extreme
danger such as retaliatory action of those who have the resources and capability to mount a
counter-assault.75
The Supreme Court stressed in People v. Vicente Sipin y De Castro:76 The prosecution
bears the burden of proving a valid cause for non-compliance with the procedure laid down in
Section 21 of R.A. No. 9165, as amended. It has the positive duty to demonstrate observance
thereto in such a way that during the trial proceedings, it must initiate in acknowledging and
justifying any perceived deviations from the requirements of law. Its failure to follow the
mandated procedure must be adequately explained, and must be proven as a fact in
accordance with the rules on evidence. It should take note that the rules require that the
apprehending officers do not simply mention a justifiable ground, but also clearly state
this ground in their sworn affidavit, coupled with a statement on the steps they took to
preserve the integrity of the seized items. Strict adherence to Section 21 is required where
the quantity of illegal drugs seized is miniscule, since it is highly susceptible to planting,
tampering or alteration of evidence.77
50.Q. What are the justifiable reasons that the three (3) witnesses rule on
physical inventory and photograph was not obtained?
50.A. It must be alleged and proved that the presence of the three witnesses to the
physical inventory and photograph of the illegal drug seized was not obtained due to reason/s
such as:
(1) their attendance was impossible because the place of arrest was a remote
area;
(2) their safety during the inventory and photograph of the seized drugs was
threatened by an immediate retaliatory action of the accused or any person/s acting for
and in his/her behalf;
(3) the elected official themselves were involved in the punishable acts sought
to be apprehended;
(4) earnest efforts to secure the presence of a DOJ or media representative and
an elected public official within the period required under Article 125 of the Revised Penal
Code prove futile through no fault of the arresting officers, who face the threat of being
charged with arbitrary detention; or
(5) time constraints and urgency of the anti-drug operations, which often rely
on tips of confidential assets, prevented the law enforcers from obtaining the presence of
the required witnesses even before the offenders could escape.78
51.Q. How should the earnest effort to contact the three (3) witnesses’
requirement should be made? Explain.
51.A. Earnest effort to secure the attendance of the necessary witnesses must be
proven. People v. Ramos79 requires:
75
See People vs. Mola, supra.
76
G.R. No. 224290 (11 June 2018).
77
See also People vs. Reyes, supra and People vs. Mola, supra.
78
People vs. Vicente Sipin y De Castro, supra. See also People vs. Reyes, supra and People vs. Mola, supra.
79
G.R. No. 233744 (28 February 2018).
IN CRIMINAL LAW
It is well to note that the absence of these required witnesses does not per
se render the confiscated items inadmissible. However, a justifiable reason for such failure
or a showing of any genuine and sufficient effort to secure the required witnesses under
Section 21 of RA 9165 must be adduced. In People vs. Umipang, the Court held that the
prosecution must show that earnest efforts were employed in contacting the representatives
enumerated under the law for a sheer statement that representatives were unavailable
without so much as an explanation on whether serious attempts were employed to look for
other representatives, given the circumstances is to be regarded as a flimsy excuse. Verily,
mere statements of unavailability, absent actual serious attempts to contact the required
witnesses are unacceptable as justified grounds for non-compliance. These considerations
arise from the fact that police officers are ordinarily given sufficient time - beginning from the
moment they have received the information about the activities of the accused until the time of
his arrest - to prepare for a buy-bust operation and consequently, make the necessary
arrangements beforehand knowing full well that they would have to strictly comply with the
set procedure prescribed in Section 21 of RA 9165. As such, police officers are compelled not
only to state reasons for their non-compliance, but must in fact, also convince the Court that
they exerted earnest efforts to comply with the mandated procedure, and that under the given
circumstances, their actions were reasonable.80
52.Q. What is chain of custody in regard to drug cases?
52.A. Chain of Custody means the duly recorded authorized movements and
custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or
laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the
forensic laboratory to safekeeping to presentation in court. Such record of movements and
custody of seized item shall include the identity and signature of the person who had
temporary custody of the seized item, the date and time when such transfer of custody was
made in the course of safekeeping and use in court as evidence, and the final disposition. 81
53.Q. What are the requirements of the chain of custody rule?
53.A. In People vs. Havana,82 the Court expounded the custodial chain procedure in
this wise: As a method of authenticating evidence, the chain of custody rule requires that
the admission of an exhibit be preceded by evidence sufficient to support a finding that
the matter in question is what the proponent claims it to be. It would include testimony
about every link in the chain, from the moment the item was picked up to the time it is
offered in evidence, in such a way that every person who touched the exhibit would
describe how and from whom it was received, where it was and what happened to it while
in the witness' possession, the condition in which it was received and the condition in
which it was delivered to the next link in the chain. These witnesses would then describe
the precautions taken to ensure that there had been no change in the condition of the item
and no opportunity for someone not in the chain to have possession of the same.
While the testimony about a perfect chain is not always the standard because it is
almost always impossible to obtain, an unbroken chain of custody becomes indispensable
and essential when the item of real evidence is not distinctive and is not readily
identifiable, or when its condition at the time of testing or trial is critical, or when a
witness has failed to observe its uniqueness. The same standard obtains in case the
evidence is susceptible of alteration, tampering, contamination and even substitution and
exchange. In other words, the exhibit's level of susceptibility to fungibility, alteration or
tampering - without regard to whether the same is advertent or otherwise not - dictates
the level of strictness in the application of the chain of custody rule.
ANY PERSON CHARGED UNDER ANY PROVISION OF THIS ACT REGARDLESS OF THE
IMPOSABLE PENALTY SHALL NOT BE ALLOWED TO AVAIL OF THE PROVISION ON
PLEA-BARGAINING (SECTION 23, R.A. NO. 9165)
54.Q. Is plea bargaining for violation of R.A. No. 9165 allowed?
80
See also People vs. Crespo, G.R. No. 230065 (14 March 2018) and People vs. Sanchez, G.R. No. 231383 (7 March
2018).
81
Section 1(b) of the Dangerous Drugs Board Regulation No. 1, Series of 2002; re Guidelines on the Custody and
Disposition of Seized Dangerous Drugs, Controlled Precursors and Essential Chemicals, and Laboratory
Equipment.
82
778 SCRA 524 (11 January 2016).
IN CRIMINAL LAW
54.A. Yes. In the case of Estipona vs. Lobrigo (837 SCRA 160, 15 August 2017)(En
Banc)[Peralta, J.], the High Court ruled that: After the finality of the decision in this case
which declared Section 23 of R.A. No. 9165 unconstitutional, plea bargaining is now
allowed subject however to the guidelines issued by the Supreme Court in A.M. No. 18-03-16-
SC dated 10 April 2018.
CYBERCRIME PREVENTION ACT OF 2012 (SECS. 4 TO 6, RA 10175)
55.Q. Who are referred to as ethical hackers?
55.A. In the case of Disini, Jr. vs. Secretary of Justice (716 SCRA 237, 18 February
2014)(En Banc)[Abad, J.], it was held that: Ethical hackers evaluate the target system’s
security and report back to the owners the vulnerabilities they found in it and give instructions
for how these can be remedied. Ethical hackers are the equivalent of independent auditors
who come into an organization to verify its bookkeeping records.
Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that
journalists would be hindered from accessing the unrestricted user account of a person in the
news to secure information about him that could be published. But this is not the essence of
identity theft that the law seeks to prohibit and punish.
56.Q. What is the essence of Identity Theft?
56.A. The theft of identity information must be intended for an illegitimate

purpose. Moreover, acquiring and disseminating information made public by the user
himself cannot be regarded as a form of theft.
The Supreme Court has defined intent to gain as an internal act which can be
established through the overt acts of the offender, and it may be presumed from the furtive
taking of useful property pertaining to another, unless special circumstances reveal a different
intent on the part of the perpetrator. As such, the press, whether in quest of news reporting or
social investigation, has nothing to fear since a special circumstance is present to negate
intent to gain which is required by this Section.
57.Q. What are the cybercrime offenses punishable under R.A. No. 10175?
57.A. Section 4(c)(1) provides:
Sec. 4. Cybercrime Offenses.– The following acts constitute the offense

of cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
(1) Cybersex.– The willful engagement, maintenance, control, or

operation, directly or indirectly, of any lascivious exhibition of sexual organs or
sexual activity, with the aid of a computer system, for favor or consideration.
The subject of Section 4(c)(1) – lascivious exhibition of sexual organs or sexual activity
– is not novel. Article 201 of the RPC punishes obscene publications and exhibitions and
indecent shows. The Anti-Trafficking in Persons Act of 2003 penalizes those who maintain or
hire a person to engage in prostitution or pornography. The law defines prostitution as any
act, transaction, scheme, or design involving the use of a person by another, for sexual
intercourse or lascivious conduct in exchange for money, profit, or any other consideration.
The case of Nogales vs. People83 shows the extent to which the State can regulate
materials that serve no other purpose than satisfy the market for violence, lust, or
pornography. The Court weighed the property rights of individuals against the public welfare.
Private property, if containing pornographic materials, may be forfeited and destroyed.
Likewise, engaging in sexual acts privately through internet connection, perceived by some as
a right, has to be balanced with the mandate of the State to eradicate white slavery and the
exploitation of women.
83
660 SCRA 475 (21 November 2011).
IN CRIMINAL LAW
In any event, consenting adults are protected by the wealth of jurisprudence

delineating the bounds of obscenity.The Court will not declare Section 4(c)(1) unconstitutional
where it stands a construction that makes it apply only to persons engaged in the business of
maintaining, controlling, or operating, directly or indirectly, the lascivious exhibition of sexual
organs or sexual activity with the aid of a computer system as Congress has intended.
58.Q. What is child pornography?
58.A. Child pornography is the unlawful or prohibited acts defined and

punishable by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009,
committed through a computer system: Provided, that the penalty to be imposed shall be
(1) one degree higher than that provided for in Republic Act No. 9775.
It seems that the above merely expands the scope of the Anti-Child Pornography Act
of 2009 (ACPA) to cover identical activities in cyberspace. In theory, nothing prevents the
government from invoking the ACPA when prosecuting persons who commit child
pornography using a computer system. Actually, ACPA’s definition of child pornography
already embraces the use of electronic, mechanical, digital, optical, magnetic or any other
means Notably, no one has questioned this ACPA provision.
Of course, the law makes the penalty higher by one degree when the crime is
committed in cyberspace. But no one can complain since the intensity or duration of penalty is
a legislative prerogative and there is rational basis for such higher penalty. The potential for
uncontrolled proliferation of a particular piece of child pornography when uploaded in the
cyberspace is incalculable.
59.Q. What is libel in contemplation of R.A. No. 10175?
59.A. R.A. No. 10175 does not define libel. Its definition is found in the Code (Article
353) which provides:
A libel is a public and malicious imputation of a crime or of a vice or

defect, real or imaginary, or any act, omission, condition, status or
circumstance tending to cause the dishonor, discredit, or contempt of a natural
or juridical person, or to blacken the memory of one who is dead.
As defined, the medium through which libel is committed is not an element of such
offense.
What is required of the prosecution are proof of the:
(1) statement of a discreditable act or condition of another person;

(2) publication of the charge;
(3) identity of the person defamed; and
(4) existence of malice.
The irrelevance of the medium of libel in the definition of the crime is evident in Article
355 of the Code which punishes libel with a uniform penalty whether it is committed by means
of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition,
cinematographic exhibition, or any similar means.
RA 10175 adopts the Code's definition of libel by describing online libel under Section
4(c)(4) as the unlawful or prohibited acts as defined in Article 355 of the Revised Penal Code,
as amended, committed through a computer system or any other similar means which may be
devised in the future. By adopting the Code's definition of libel, Section 4(c)(4) also adopts the
elements of libel as defined in Article 353 in relation to Article 355 of the Code. Section 4(c)(4)
merely adds the media of computer system or any other similar means which may be devised
in the future to the list of media enumerated in Article 355. This is understandable because at
the time the Code was enacted in 1930, the Internet was non-existent. In the words of the
OSG itself (in contradiction to its position on the constitutionality of Section 7), Congress
enacted Section 4(c)(4) not to create a new crime, but merely to make express an
avenue already covered by the term 'similar means' under Article 355, to keep up with the
times:
60.Q. What is online libel?

IN CRIMINAL LAW
60.A. Online libel is not a new crime. Online libel is a crime punishable under x x x
Article 353, in relation to Article 355 of the Revised Penal Code. Section 4(c)(4) just made
express an avenue already covered by the term similar means under Article 355, to keep up
with the times.
For purposes of double jeopardy analysis, therefore, Section 4(c)(4) of RA 10175 and
Article 353 in relation to Article 355 of the Code define and penalize the same offense of
libel. Under the Double Jeopardy Clause, conviction or acquittal under either Section 4(c)(4) or
Article 353 in relation to Article 355 constitutes a bar to another prosecution for the same
offense of libel.
The case of petitioners Ellen Tordesillas, Harry Roque and Romel Bagares in G.R. No.
203378 provides a perfect example for applying the rules on print and online libel in relation to
the Double Jeopardy Clause. These petitioners write columns which are published online and
in print by national and local papers. They allege, and respondents do not disprove, that ―their
columns see publication in both print and online versions of the papers they write for.‖ Should
these petitioners write columns for which they are prosecuted and found liable under Section
4(c)(4) of RA 10175 for online libel the Double Jeopardy Clause bars their second prosecution
for print libel for the same columns upon which their first conviction rested, under Article 353
in relation to Article 355 of the Code. Such constitutional guarantee shields them from being
twice put in jeopardy of punishment for the same offense of libel.
The foregoing analysis applies to all other offenses defined and penalized under the
Code or special laws which (1) are penalized as the same offense under RA 10175 committed
through the use of a computer system; or (2) are considered aggravated offenses under RA
10175. Conviction or acquittal under the Code or such special laws constitutes a bar to the
prosecution for the commission of any of the offenses defined under RA 10175. Thus, for
instance, conviction or acquittal under Section 4(a) of RA 9775 (use of a child to create child
pornography) constitutes a bar to the prosecution for violation of Section 4(c)(2) of RA 19175
(online child pornography) and vice versa. This is because the offense of child pornography
under RA 9775 is the same offense of child pornography under RA 10175 committed through
the use of a computer system.
61.Q. What is the implication of the provision of Section 4(c)(4) of the Cyber
Crime Law on Articles 353, 354, and 355 of the Penal Code?
61.A. The libel provision of the cybercrime law merely incorporates to form part of
it the provisions of the RPC on libel. Thus Section 4(c)(4) reads:
Sec. 4. Cybercrime Offenses. – The following acts constitute the

offense of cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(4) Libel. – The unlawful or prohibited acts of libel as defined in

Article 355 of the Revised Penal Code, as amended, committed through a
computer system or any other similar means which may be devised in the
future.
62.Q. What are the elements of libel?
62.A. The elements of libel are:
(a) the allegation of a discreditable act or condition concerning

another;
(b) publication of the charge;
(c) identity of the person defamed; and
(d) existence of malice.

IN CRIMINAL LAW
There is actual malice or malice in fact when the offender makes the defamatory
statement with the knowledge that it is false or with reckless disregard of whether it was
false or not. The reckless disregard standard used here requires a high degree of awareness of
probable falsity. There must be sufficient evidence to permit the conclusion that the accused
in fact entertained serious doubts as to the truth of the statement he published. Gross or even
extreme negligence is not sufficient to establish actual malice.
The prosecution bears the burden of proving the presence of actual malice in instances
where such element is required to establish guilt. The defense of absence of actual malice,
even when the statement turns out to be false, is available where the offended party is a
public official or a public figure, as in the cases of Vasquez (a barangay official) and Borjal (the
Executive Director, First National Conference on Land Transportation). Since the penal code
and implicitly, the cybercrime law, mainly target libel against private persons, the Court
recognizes that these laws imply a stricter standard of ―malice‖ to convict the author of a
defamatory statement where the offended party is a public figure. Society’s interest and the
maintenance of good government demand a full discussion of public affairs.
63.Q. If the offended party in a libel case is a private individual, is the prosecution
required to prove malice?
63.A. No. The prosecution need not prove the presence of malice. The law explicitly
presumes its existence (malice in law) from the defamatory character of the assailed
statement. For his defense, the accused must show that he has a justifiable reason for the
defamatory statement even if it was in fact true. Petitioners peddle the view that both the
penal code and the Cybercrime Prevention Act violate the country’s obligations under the
International Covenant of Civil and Political Rights (ICCPR). They point out that in Adonis v.
Republic of the Philippines, the United Nations Human Rights Committee (UNHRC) cited its
General Comment 34 to the effect that penal defamation laws should include the defense of
truth.
But General Comment 34 does not say that the truth of the defamatory statement
should constitute an all-encompassing defense. As it happens, Article 361 recognizes truth as
a defense but under the condition that the accused has been prompted in making the
statement by good motives and for justifiable ends. Thus:
Art. 361. Proof of the truth. – In every criminal prosecution for libel, the
truth may be given in evidence to the court and if it appears that the matter
charged as libelous is true, and, moreover, that it was published with good
motives and for justifiable ends, the defendants shall be acquitted.
Proof of the truth of an imputation of an act or omission not

constituting a crime shall not be admitted, unless the imputation shall have
been made against Government employees with respect to facts related to the
discharge of their official duties.
In such cases if the defendant proves the truth of the imputation made
by him, he shall be acquitted.
Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to
decriminalize libel. It simply suggested that defamation laws be crafted with care to ensure
that they do not stifle freedom of expression.Indeed, the ICCPR states that although everyone
should enjoy freedom of expression, its exercise carries with it special duties and
responsibilities. Free speech is not absolute. It is subject to certain restrictions, as may be
necessary and as may be provided by law.
The Court agrees with the Solicitor General that libel is not a constitutionally
protected speech and that the government has an obligation to protect private individuals
from defamation.
64.Q. Is cyberlibel a new crime in this jurisdiction?
64.A. No. Cyberlibel is actually not a new crime since Article 353, in relation to
Article 355 of the penal code, already punishes it. In effect, Section 4(c)(4) above merely
affirms that online defamation constitutes ―similar means‖ for committing libel.
IN CRIMINAL LAW
But the Court’s acquiescence goes only insofar as the cybercrime law penalizes the
author of the libelous statement or article. Cyberlibel brings with it certain intricacies,
unheard of when the penal code provisions on libel were enacted. The culture associated with
internet media is distinct from that of print.
The internet is characterized as encouraging a freewheeling, anything-goes writing

style. In a sense, they are a world apart in terms of quickness of the reader’s reaction to
defamatory statements posted in cyberspace, facilitated by one-click reply options offered by
the networking site as well as by the speed with which such reactions are disseminated down
the line to other internet users. Whether these reactions to defamatory statement posted on
the internet constitute aiding and abetting libel, acts that Section 5 of the cybercrime law
punishes, is another matter that the Court will deal with next in relation to Section 5 of the
law.
65.Q. What does aiding or abetting cyberlibel mean? Explain.
65.A. Aiding or abetting has of course well-defined meaning and application in

existing laws. When a person aids or abets another in destroying a forest, smuggling
merchandise into the country, or interfering in the peaceful picketing of laborers, his action is
essentially physical and so is susceptible to easy assessment as criminal in character. These
forms of aiding or abetting lend themselves to the tests of common sense and human
experience.
But, when it comes to certain cybercrimes, the waters are muddier and the line of
sight is somewhat blurred. The idea of “aiding or abetting” wrongdoings online threatens
the heretofore popular and unchallenged dogmas of cyberspace use.
The terms aiding or abetting constitute broad sweep that generates chilling effect on
those who express themselves through cyberspace posts, comments, and other
messages. Hence, Section 5 of the cybercrime law that punishes aiding or abetting libel on
the cyberspace is a nullity.
Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises

apprehension on the part of internet users because of its obvious chilling effect on the freedom
of expression, especially since the crime of aiding or abetting ensnares all the actors in the
cyberspace front in a fuzzy way. What is more, as the petitioners point out, formal crimes such
as libel are not punishable unless consummated. In the absence of legislation tracing the
interaction of netizens and their level of responsibility such as in other countries, Section 5, in
relation to Section 4(c)(4) on Libel, Section 4(c)(3) on Unsolicited Commercial Communications,
and Section 4(c)(2) on Child Pornography, cannot stand scrutiny.
Online libel is different. There should be no question that if the published material on
print, said to be libelous, is again posted online or vice versa, that identical material cannot be
the subject of two separate libels. The two offenses, one a violation of Article 353 of the
Revised Penal Code and the other a violation of Section 4(c)(4) of R.A. 10175 involve essentially
the same elements and are in fact one and the same offense. Indeed, the OSG itself claims that
online libel under Section 4(c)(4) is not a new crime but is one already punished under Article
353. Section 4(c)(4) merely establishes the computer system as another means of
publication. Charging the offender under both laws would be a blatant violation of the
proscription against double jeopardy.
SPECIAL PROTECTION OF CHILDREN AGAINST ABUSE, EXPLOITATION, AND

DISCRIMINATION ACT (SECS. 3[A], 5, AND 10, RA 7610)
66.Q. What is the present jurisprudential guidelines in designating or charging

the proper offense in case lascivious conduct is committed under Section 5(b) of R.A. No.
7610, and in determining the imposable penalty? Explain.
66.A. In the case of People vs. Francisco Ejercito (G.R. No. 229861, 2 July 2018)
(Second Division)[Perlas-Bernabe, J.], the High Court issued the following guidelines for the
guidance of public prosecutors and the courts, to wit:
IN CRIMINAL LAW
(1) The age of the victim is taken into consideration in designating or charging
the offense, and in determining the imposable penalty.
(2) If the victim is under twelve (12) years of age, the nomenclature of the crime
should be Acts of Lasciviousness under Article 336 of the Revised Penal Code in relation to
Section 5(b) of R.A. No. 7610. Pursuant to the second proviso in Section 5(b) of R.A. No. 7610,
the imposable penalty is reclusion temporal in its medium period.
(3) If the victim is exactly twelve (12) years of age, or more than twelve (12) but
below eighteen (18) years of age, or is eighteen (18) years old or older but is unable to fully
take care of herself/himself or protect herself/himself from abuse, neglect, cruelty,
exploitation or discrimination because of a physical or mental disability or condition, the
crime should be designated as Lascivious Conduct under Section 5 (b) of R.A. No. 7610, and
the imposable penalty is reclusion temporal in its medium period to reclusion perpetua.
67.Q. What are the parameters in the application of Section 5(b), R.A. No. 7610?
Explain.
67.A. In People vs. Ejercito, citing the case of Quimvel vs. People,84 the Supreme
Court set important parameters in the application of Section 5 (b) of RA 7610, to wit:
(1) A child is considered as one exploited in prostitution or subjected to other

sexual abuse when the child indulges in sexual intercourse or lascivious conduct under the
coercion or influence of any adult.
(2) A violation of Section 5 (b) of RA 7610 occurs even though the accused
committed sexual abuse against the child victim only once, even without a prior sexual
affront.
(3) For purposes of determining the proper charge, the term coercion and
influence as appearing in the law is broad enough to cover force and intimidation as used in
the Information; in fact, as these terms are almost used synonymously, it is then of no
moment that the terminologies employed by RA 7610 and by the Information are different.
Thus, the Court, in Quimvel, observed that although the Information therein did not
contain the words coercion or influence (as it instead, used the phrase through force and
intimidation), the accused may still be convicted under Section 5 (b) of RA 7610. Further,
following the rules on the sufficiency of an Information, the Court held that the Information
need not even mention the exact phrase exploited in prostitution or subjected to other abuse
for the accused to be convicted under Section 5(b) of RA 7610; it was enough for the
Information to have alleged that the offense was committed by means of force and
intimidation for the prosecution of an accused for violation of Section 5 (b) of RA 7610 to
prosper.
68.Q. Can the accused be simultaneously charged with Rape and violation of
Child Abuse under Section 5(b), Art. III of R.A. No. 7610?
68.A. No. In Alberto vs. CA (699 SCRA 104, 19 June 2013)(Second Division)[Perlas-
Bernabe, J.], the Supreme Court held that: Existing jurisprudence, however, proscribes
charging an accused for both crimes, rather, he may be charged only for either. As held in
People vs. Pangilinan:85
If the victim is 12 years or older, the offender should be charged with either sexual
abuse under Section 5(b) of RA 7610 or rape under Article 266-A (except paragraph 1[d]) of the
Revised Penal Code. However, the offender cannot be accused of both crimes for the same act
because his right against double jeopardy will be prejudiced. A person cannot be subjected
twice to criminal liability for a single criminal act. Likewise, rape cannot be complexed
with a violation of Section 5(b) of RA 7610. Under Article 48 of the Revised Penal Code (on
complex crimes), a felony under the Revised Penal Code (such as rape) cannot be
complexed with an offense penalized by a special law.
Thus, the High Court ruled further in Alberto: In this light, while the Court also
finds that probable cause exists for the crime of Child Abuse against Gil for the same rape
84
See G.R. No. 214497 (18 April 2017).
85
660 SCRA 16 (14 November 2011).
IN CRIMINAL LAW
incidents of December 28, 2001 and April 23, 2002 in view of the substantial identity of its
elements86 with that of Rape, he cannot be charged for both.
69.Q. What is sexual abuse and lascivious conduct in contemplation of R.A. No.
7610?
69.A. In Orsos vs. People (845 SCRA 150, 20 November 2017)(Second Division)
[Perlas-Bernabe, J.], it was held that: Sexual abuse includes the employment, use,
persuasion, inducement, enticement or coercion of a child to engage in, or assist another
person to engage in, sexual intercourse or lascivious conduct or the molestation,
prostitution, or incest with children.
Lascivious conduct means the intentional touching, either directly or through the
clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of
any object into the genitalia, anus or mouth, of any person, whether of the same or opposite
sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire
of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a
person.87 (People vs. Gaduyon, 709 SCRA 129, 11 November 2013; People vs. Lomaque, 697
SCRA 383, 5 June 2013.)
70.Q. What are the requisites for violation of Section 5(b), Art. III of R.A. No.
7610?
1. Orsos vs. People (845 SCRA 150, 20 November 2017)(Second Division)

[Perlas-Bernabe, J.](Petitioner's conviction was upheld by the SC not for the crime of acts of
lasciviousness under Article 336 of the RPC in relation to Section 5 (b) of RA 7610, but
for lascivious conduct' under Section 5 (b) of RA 7610, considering that she was 14 years of age
at the time of the commission of the crime. 88 Petitioner was the CAT Commandant of the
private complainant)
2. People vs. Ladra (831 SCRA 252, 17 July 2017)(First Division)[Perlas-

Bernabe, J.]
3. Quimvel vs. People (823 SCRA 192, 18 April 2017)(En Banc)[Velasco, Jr.,
J.],89 the High Court ruled that: Before an accused can be held criminally liable for lascivious
conduct under Section 5 (b) of RA 7610, the requisites of the crime of Acts of Lasciviousness as
penalized under Article 336 of the RPC above-enumerated must be met in addition to the
requisites for sexual abuse under Section 5 (b) of RA 7610, as follows:
(1) the accused commits the act of sexual intercourse or lascivious

conduct;
(2) the act is performed with a child exploited in prostitution or

subjected to other sexual abuse; and
(3) the child, whether male or female is below eighteen (18) years
of age.90
This paragraph covers not only a situation where a child is abused for profit but also
one in which a child, through coercion, intimidation or influence, engages in sexual intercourse
or lascivious conduct. (People vs. Gaduyon, supra.)
86
For the same reasons attendant to the finding of probable cause for Rape, the Court observes that there lies
probable cause for the crime of Child Abuse against Gil in connection with the December 28, 2001 and April 23,
2002 incidents. To note, the elements of Child Abuse under Section 5(b), Article III of RA 7610 are: (a) that the
accused commits the act of sexual intercourse or lascivious conduct; (b) that the said act is performed with a child
exploited in prostitution or subjected to other sexual abuse; and (c) that the child, whether male or female, is
below eighteen (18) years of age. [See Olivarez vs. CA, 465 SCRA 473 (29 July 2005), citing Amployo vs. People, 496
Phil. 747 (2005)].
87
People vs. Abello, 582 SCRA 378 (25 March 2009); People vs. Sumingwa, 603 SCRA 638 (13 October 2009), citing
Section 2(g) and (h) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases
promulgated to implement the provisions of Republic Act No. 7610.
88
People vs. Caoili, G.R. No. 196342 & 196848 (8 August 2017).
89
The SC affirm the CA's Decision finding petitioner guilty beyond reasonable doubt of the crime of Acts of
Lasciviousness as penalized under Sec. 5 (b) of RA 7610.
90
Malto vs. People, 533 SCRA 643 (21 September 2007).
IN CRIMINAL LAW
71.Q. How can the victim be classified as one who was exploited in prostitution
or subjected to other sexual abuse?
71.A. This is anchored on the very definition of the phrase in Sec. 5 of RA 7610,
which encompasses children who indulge in sexual intercourse or lascivious conduct (a) for
money, profit, or any other consideration; or (b) under the coercion or influence of any adult,
syndicate or group.91
72.Q. What are the acts punished by Section 5(a) and Section 5(b) of R.A. No.
7610? Explain.
72.A. Sec. 5(a) of RA 7610 punishes acts pertaining to or connected with child
prostitution wherein the child is abused primarily for profit.
On the other hand, paragraph (b) punishes sexual intercourse or lascivious conduct
committed on a child subjected to other sexual abuse. It covers not only a situation where a
child is abused for profit but also one in which a child, through coercion, intimidation or
influence, engages in sexual intercourse or lascivious conduct. 92 Hence, the law punishes not
only child prostitution but also other forms of sexual abuse against children.
73.Q. Is the information for violation of R.A. No. 7610 defective if, instead of
coercion and influence, it alleges force and intimidation? Explain.
73.A. No. The term coercion and influence as appearing in the law is broad enough
to cover force and intimidation if used in the Information. To be sure, Black's Law
Dictionary defines coercion as compulsion; force; duress93 while undue influence is defined
as persuasion carried to the point of overpowering the will.94
On the other hand, force refers to constraining power, compulsion; strength directed to
an end 95 while jurisprudence defines intimidation as unlawful coercion; extortion; duress;
putting in fear.96 As can be gleaned, the terms are used almost synonymously. It is then of no
moment that the terminologies employed by RA 7610 and by the Information are different. And
to dispel any remaining lingering doubt as to their interchangeability, the Supreme Court
enunciated in Caballo v. People97 that: x x x sexual intercourse or lascivious conduct under the
coercion or influence of any adult exists when there is some form of compulsion equivalent
to intimidation which subdues the free exercise of the offended party's free will. Corollary
thereto, Section 2(g) of the Rules on Child Abuse Cases conveys that sexual abuse involves the
element of influence which manifests in a variety of forms. It is defined as:The employment,
use, persuasion, inducement, enticement or coercion of a child to engage in or assist another
person to engage in, sexual intercourse or lascivious conduct or the molestation, prostitution,
or incest with children.
To note, the term influence means the improper use of power or trust in any way
that deprives a person of free will and substitutes another's objective. Meanwhile, coercion
is the improper use of x x x power to compel another to submit to the wishes of one who
wields it.
The employment, use, persuasion, inducement, enticement or coercion of a child to

engage in or assist another person to engage in, sexual intercourse or lascivious conduct or
the molestation, prostitution, or incest with children.
74.Q. To be held liable for violations of R.A. 7610, would it be necessary that the
exact phrase of “exploited in prostitution or subjected to other abuse” or the words
“coercion or influence” be alleged in the Information? Explain.
91
People vs. Larin, 357 Phil. 987 (1998).
92
Malto vs. People, 560 Phil. 119 (2007).
93
<http://thelawdictionary.org/coercion/> last accessed on March 3, 2017.
94
<http://thelawdictionary.org/undue-influence/> last accessed on March 3, 2017.
95
<http://thelawdictionary.org/force/> last accessed on March 4, 2017.
96
Sazon vs. Sandiganbayan, 598 Phil. 35 (2009).
97
710 Phil. 792 (2013).
IN CRIMINAL LAW
74.A. No. It need not specifically appear. The Supreme in Olivarez vs. Court of
Appeals,98 has similarly sustained the conviction of therein petitioner Isidro Olivarez for
violating Sec. 5, RA 7610.
The absence of the phrase exploited in prostitution or subject to other sexual abuse or
even the specific mention of coercion or influence was never a bar for the Court to uphold the
finding of guilt against an accused for violation of RA 7610.
The Supreme Court find no impediment in People vs. Abadies,99 Malta vs. People,100
People vs. Ching,101 People vs. Bonaagua,102 and Caballo vs. People103 to convict the accused
therein for violation of Sec. 5, RA 7610 notwithstanding the non-mention in the Information
of coercion, influence, or exploited in prostitution or subject to other abuse.
In Malto vs. People,104 therein accused Michael John Z. Malto was charged for
violation of RA 7610.
Interestingly, the acts constitutive of the offense, as alleged in the Information, could
make out a case for violation of either Sec. 5(b) of RA 7610 or Rape under the
RPC.105 Nevertheless, the Court affirmed the finding that Malto is criminally liable for violation
of RA 7610, and not for Rape.
The Court is not unmindful of its pronouncements in People vs. Abello106 and Cabila
vs. People107 that the second element must specifically be alleged in the Information and
thereafter proved.- However, these rulings cannot support petitioner's prayer that he be
convicted under Art. 336 of the RPC instead of under Sec. 5(b) of RA 7610.
To begin with, the factual milieu of Abello significantly differs with that in the case at
bar. Our refusal to convict therein accused Heracleo Abello was premised on the fact that his
victim cannot be considered as a child within the purview of RA 7610. 108 The victim in Abello
was 21 years of age when the offense was committed. Although she had polio, the
prosecution failed to substantiate through evidence that the victim's physical condition
rendered her incapable of fully taking care of herself or of protecting herself against sexual
98
503 Phil. 421 (2005).
99
433 Phil. 814 (2002); the Information reads:
That on or about July 1, 1997, in the Municipality of San Pedro, Province of Laguna, Philippines, and within
the jurisdiction of this Honorable Court, said accused actuated by lewd design did then and there wilfully,
unlawfully and feloniously, with force and intimidation commit acts of lasciviousness upon the person of his 17-
year old daughter [AAA] by kissing, mashing her breast and touching her private parts against her will and
consent.
CONTRARY TO LAW.
100
560 Phil. 119 (2007).
101
563 Phil. 433, 436 (2007); the Information reads:
CRIMINAL CASE NO. Q-99-87053
That in or about the month of May, 1998, in xxx, Philippines, the said accused by means of force and
intimidation, to wit: by then and there, willfully, unlawfully and feloniously drag said AAA, his own daughter, 12
years of age, minor, inside a bedroom and undressed her and put himself on top of her and thereafter have carnal
knowledge with said AAA against her will and without her consent.
CRIMINAL CASE NO. Q-99-87054
That in or about the month of May, 1998, in xxx, Philippines, the said accused by means of force and
intimidation, to wit by then and there, willfully, unlawfully and feloniously drag said AAA, his own daughter, 12
years of age, minor, inside a bedroom and undressed her and put himself on top of her and thereafter have carnal
knowledge with said AAA against her will and without her consent.
CRIMINAL CASE NO. 0-99-87055
That in or about the year of 1996, in X:XX, Philippines, the said accused by means of force and intimidation,
to wit: by then and there, willfully, unlawfully and feloniously drag said AAA, his own daughter, 12 years of age,
minor, inside a bedroom and undressed her and put himself on top of her and thereafter have carnal knowledge
with said AAA against her will and without her consent.
102
665 Phil. 750 (2011); the information reads:
That on or about the month of December 1998 in the City of Las Piñas and within the jurisdiction of this
Honorable Court, the above-named accused, with abuse of influence and moral ascendancy, by means of force,
threat and intimidation, did then and there willfully, unlawfully and feloniously insert ' his tongue and finger into
the genital of his daughter, [AAA], a minor then eight (8) years of age, against her will and consent.
CONTRARY TO LAW and with the special aggravating/qualifying circumstance of minority of the private
offended party, [AAA], being then only eight (8) years of age and relationship of the said private offended party
with the accused, Ireno Bonaagua y Berce, the latter being the biological father of the former.
103
710 Phil. 792 (2013).
104
560 Phil. 119 (2007).
105
Rape was still classified as a crime against chastity under the RPC at the time the offense was committed.
106
601 Phil. 373 (2009).
107
538 SCRA 695 (23 November 2007).
108
Section 3. Definition of Terms. - (a) "Children" refers to person below eighteen (18) years of age or those over but
are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or
discrimination because of a physical or mental disability or condition;
IN CRIMINAL LAW
abuse.109 Hence, Abello was only convicted of Acts of Lasciviousness under Art. 336 of the
RPC.
The very definition of child abuse under Sec. 3(b) of RA 7610 does not require that
the victim suffer a separate and distinct act of sexual abuse aside from the act complained
of. For it refers to the maltreatment, whether habitual or not, of the child. Thus, a violation
of Sec. 5(b) of RA 7610 occurs even though the accused committed sexual abuse against
the child victim only once, even without a prior sexual affront.
75.Q. Is the intervention of a third person (bugaw) necessary for the conviction of
the accused under Section 5 of R.A. No. 7610? Explain.
75.A. No. The intervention by a third person is not necessary to convict an

accused under Sec. 5 of RA 7610. As regards paragraph (a), a child may engage in sexual
intercourse or lascivious conduct regardless of whether or not a “bugaw” is present.
Although the presence of an offeror or a pimp is the typical set up in prostitution rings, this
does not foreclose the possibility of a child voluntarily submitting himself or herself to
another's lewd design for consideration, monetary or otherwise, without third person
intervention. Needless to say, the child, would still be under the protection of the law, and
the offender, in such a situation, could still be held criminally liable for violation of Sec.
5(a) of RA 7610.
The Senate deliberations made clear, though, that other forms of sexual abuse, not just
prostitution, are within the extended coverage of RA 7610. The offense is even penalized
under the same provision as prostitution-Sec. 5 of the law. Both offenses must then be dealt
with under the same parameters, in spite of the differences in their elements. Thus,
concomitant with the earlier postulation, just as the participation of a third person is not
necessary to commit the crime of prostitution, so too is the circumstance unessential in
charging one for other sexual abuse.
It is immaterial whether or not the accused himself employed the coercion or influence
to subdue the will of the child for the latter to submit to his sexual advances for him to be
convicted under paragraph (b). Sec. 5 of RA 7610 even provides that the offense can be
committed by any adult, syndicate or group, without qualification.110 The clear language of
the special law, therefore, does not preclude the prosecution of lascivious conduct
performed by the same person who subdued the child through coercion or influence. This
is, in fact, the more common scenario of abuse that reaches this Court and it would be an
embarrassment for us to rule that such instances are outside the ambit Sec. 5(b) of RA
7610.
In Quimvel vs. People supra, Mr. Justice Velasco said: It is as my esteemed

colleagues Associate Justices Diosdado M. Peralta and Estela M. Perlas-Bernabe reminded
the Court. Ratio legis est anima. The reason of the law is the soul of the law. In this case, the
law would have miserably failed in fulfilling its lofty purpose 111 of providing special protection
to children from all forms of abuse if the Court were to interpret its penal provisions so as to
require the additional element of a prior or contemporaneous abuse that is different from what
is complained of, and if the Court were to require that a third person act in concert with the
accused.
76.Q. When can a child be considered as sexually abused under Section 5(b), R.A.
No. 7610? Explain.
76.A. In Dimakuta vs. People (773 SCRA 228, 20 October 2015)(En Banc)[Peralta,
J.],112 it was held that: A child is considered as sexually abused under Section 5(b) of R.A. No.
109
601 Phil. 373 (2009).
110
Section 5. Child Prostitution and Other Sexual Abuse. - Children, whether male or female, who for money, profit, or
any other consideration or due to the coercion or influence of any adult, syndicate or group indulge in sexual
intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.
111
RA 7610, Section 2. Declaration of State Policy and Principles. - It is hereby declared to be the policy of the State to
provide special protection to children from all firms of abuse, neglect, cruelty exploitation and discrimination and
other conditions, prejudicial their development; provide sanctions for their commission and carry out a program for
prevention and deterrence of and crisis intervention in situations of child abuse, exploitation and discrimination.
The State shall intervene on behalf of the child when the parent, guardian, teacher or person having care or
custody of the child fails or is unable to protect the child against abuse, exploitation and discrimination or when
such acts against the child are committed by the said parent, guardian, teacher or person having care and custody
of the same.
112
Denial of the Application for Probation due to the Notice of Appeal filed.
IN CRIMINAL LAW
7610 when he or she is subjected to lascivious conduct under the coercion or influence of any
adult. Intimidation need not necessarily be irresistible. It is sufficient that some compulsion
equivalent to intimidation annuls or subdues the free exercise of the will of the offended
party.113 The law does not require physical violence on the person of the victim; moral
coercion or ascendancy is sufficient.114
GOOD LUCK AND MAY ALL OF YOU REACH THE UNREACHABLE STAR!!!!
- NOTHING FOLLOWS -
113
People vs. Gerandoy, 735 SCRA 520 (17 September 2014); Caballo vs. People, supra; Garingarao vs. People, 669
Phil. 512 (2011); People vs. Rellota, 640 Phil. 471 (2010); People vs. Abello, supra; and Amployo vs. People, supra.
114
People vs. Larin, supra.

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PRE-WEEK AND

LAST MINUTE LECTURE

ATTY. SALVADOR N. MOYA II, LL.M.

III. SPECIAL LAWS

ANTI-FENCING LAW OF 1979 (SECS. 2 AND 5, PD 1612)

1.Q. What is fencing?

2.Q. What are the essential elements of the crime of fencing?

2.A. The essential elements of the crime of fencing are as follows:

(a) a crime of robbery or theft has been committed;

Notably, Fencing is a malum prohibitum, and PD 1612 creates a prima

3.A. Anent the proper penalty to be imposed pertinent portions of Section 3 of PD

SECTION 3. Penalties. – Any person guilty of fencing shall be punished as hereunder

ANTI-GRAFT AND CORRUPT PRACTICES ACT (SEC. 3, RA 3019, AS AMENDED)

6.A. In the following cases:

1. Cambe vs. Office of the Ombudsman (812 SCRA537, 6 December 2016)(En

2. Reyes vs. Ombudsman (787 SCRA 354, 15 March 2016)(En Banc)[Perlas-

4. PDIC vs. Casimiro (769 SCRA 110, 2 September 2015)(First Division)[Perlas-

5. Garcia vs. Office of the Ombudsman16 (741 SCRA 172, 19 November

(4) that such injury is caused by giving unwarranted benefits, advantage or

7.A. There is manifest partiality when there is a clear, notorious, or plain

It contemplates a state of mind affirmatively operating with furtive design or with

Upon receipt of the said information, Mayor Monis issued an unnumbered

8.Q. What is the criminal liability of Mayor Monis, if there is any?

Under these questionable circumstances, Monis’ refusal to issue a Business Permit

10.A. No. In the following cases:

11.A. The elements of the offense are:

(1) that the accused is a public officer;

(2) that he entered into a contract or transaction on behalf of the government;

(3) that such contract or transaction is grossly and manifestly disadvantageous

ANTI-HAZING ACT OF 2018 (SECS. 2 AND 3, RA 8049, AS AMENDED BY RA 11053)

Hazing is commonly characterized by secrecy and silence and to require the

ANTI-PLUNDER ACT (SECS. 1 AND 2, RA 7080, AS AMENDED BY RA 7659)

13.Q. What are the elements of plunder?

13.A. In the following cases:

2. Reyes vs. Ombudsman (787 SCRA 354, 15 March 2016)(En Banc)[Perlas-

(b) that he amasses, accumulates or acquires ill-gotten wealth through a

14.Q. What does the phrase “raids on public treasury” mean?

14.A. In the following cases:

2. Macapagal-Arroyo vs. People, 797 SCRA 241, 19 July 2016)(En Banc)

16.Q. What does “connivance” mean under the law on plunder?

17.Q. Is it sufficient to allege in the Information that the amount of ill-gotten

18.Q. How is plunder proven?

18.A. Plunder is a crime composed of several predicate criminal acts. To prove

The interrelationship of the separate acts must be shown and be established as a

ANTI-TRAFFICKING IN PERSONS ACT OF 2003 (SECS. 3, 4, AND 6, RA 9208, AS

19.Q. What does “trafficking in persons” mean?

20.Q. What is meant by qualified trafficking in persons?

SECTION 6. Qualified Trafficking in Persons.– The following are

(a) When the trafficked person is a child;

(d) When the offender is an ascendant, parent, sibling, guardian or

21.Q. What other acts constitute trafficking in persons?

(a) To recruit, transport, transfer, harbor, provide, or receive a

(e) To maintain or hire a person to engage in prostitution or

22.Q. Can parents be convicted for violations of R.A. No. 9208?

As correctly ruled by the courts a quo, accused-appellants are guilty beyond

24.Q. What does economic abuse mean?

SECTION 3. Definition of Terms.–xxx.

Economic abuse refers to acts that make or attempt to make a woman