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overtaking another, it should be made only
if the highway is clearly visible and is free
from oncoming vehicle. Overtaking while
approaching a curve in the highway, where
the driver’s view is obstructed, is not
allowed. Corollarily, drivers of automobiles,
when overtaking another vehicle, are
charged with a high degree of care and
diligence to avoid collision. The obligation
rests upon him to see to it that vehicles
coming from the opposite direction are not
taken unaware by his presence on the side
of the road upon which they have the right
to pass.
In the medical profession, specific
norms or standards to protect the patient
against unreasonable risk, commonly
referred to as standards of care, set the
duty of the physician to act in respect of the
patient. Unfortunately, no clear definition of
the duty of a particular physician in a
particular case exists. Because most
medical malpractice cases are highly
technical, witnesses with special medical
qualifications must provide guidance by
giving the knowledge necessary to render a
fair and just verdict. As a result, the
standard of medical care of a prudent
physician must be determined from expert
testimony in most cases; and in the case of
a specialist (like an anesthesiologist), the
standard of care by which the specialist is
judged is the care and skill commonly
possessed and exercised by similar
specialists under similar circumstances. The
specialty standard of care may be higher
than that required of the general
practitioner.
The standard of care is an objective
standard by which the conduct of a
physician sued for negligence or
malpractice may be measured, and it does
not depend, therefore, on any individual
physician’s own knowledge either. In
attempting to fix a standard by which a
court may determine whether the physician
has properly performed the requisite duty
toward the patient, expert medical
testimony from both plaintiff and defense
experts is required. The judge, as the trier
of fact, ultimately determines the standard
of care, after listening to the testimony of all
medical experts.
Here, the Prosecution presented no
witnesses with special medical
qualifications in anesthesia to provide
guidance to the trial court on what
standard of care was applicable. It would
consequently be truly difficult, if not
impossible, to determine whether the first
three elements of a negligence and
malpractice action were attendant (Solidum
vs. People, GR No. 192123, March 10,
2014).
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JUDGE MARLO B. CAMPANILLA
VIOLENCE AGAINST WOMAN
Are the acts of attaching the face of
his ex-girlfriend on a nude body of a woman
in a picture, sending the picture to her
through cell phone text message and
threatening to post it in the internet for all
to see that caused substantial emotional
and psychological distress to her
constitutive of psychological violence
against woman under Section 5 (h) of RA
No. 9262? Yes. Under Section 5 (h) of RA
No. 9262 the following conduct that caused
substantial emotional and psychological
distress to the woman with whom the
offender has a marital, sexual or dating
relationship is punishable: (1) Stalking (2)
Peering in the window or lingering outside
the residence of the woman or her child; (3)
Entering or remaining in the dwelling
against her will; (4) Destroying property and
inflicting harm to animals; and (5) Engaging
in any form of harassment or violence;
The acts described above are
considered harassment within the
contemplation of the phrase “any form of
harassment” in Section 5 (h) (5) (Ang vs.
The Honorable CA, G.R. No. 182835, April
20, 2010).
Is habituality an element of
violence against women and their children
under Section 5 (h)? No. Section 3(a) of R.A.
9262 punishes "any act or series of acts"
that constitutes violence against women.
This means that a single act of harassment
contemplated in Section 5 (h), which
translates into violence, would be enough.
The object of the law is to protect women
and children. Punishing only violence that
is repeatedly committed would license
isolated ones (Ang vs. The Honorable CA,
G.R. No. 182835, April 20, 2010).
HAZING
The night before the
commencement of the rites, the neophytes
of “AngGaling” fraternity were briefed on
what to expect. They were told that there
would be physical beatings, that the whole
event would last for three days, that that
they could quit anytime. “A”, a neophyte,
consented to the initiation ritual, having
asked his parents for permission to join the
fraternity. Even after going through the
fraternity’s grueling tradition rituals—
mainly being beaten by a paddle on the
arms and legs—during the first day, “A”
continued and completed the second day of
initiation. As consequence of the hazing, “A”
died. What is the crime committed by
members of the fraternity, who directly
participated in the infliction of harm
against “A”? The crime committed is hazing.
The principle in Villareal vs. People, G.R.
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No. 151258, February 1, 2012 finding the
accused liable for reckless imprudence
resulting in homicide is not anymore
controlling in the light of RA No. 8049 (Anti-
hazing Law)
Under Section 4 of RA 8049, the
officers and members of the fraternity,
sorority or organization who actually
participated in the infliction of physical
harm upon recruit, neophyte or applicant
on occasion of hazing shall be liable as
principals for the crime of hazing. Hazing is
an initiation rite or practice as a
prerequisite for admission into membership
in a fraternity, sorority or organization
(such as AFP, PNP, ROTC) or a requirement
for employment in a corporation by placing
the recruit, neophyte or applicant in some
embarrassing or humiliating situations.
What are the differences between
hazing and homicide or murder? The
differences of homicide or murder and
hazing are as follows: (a) In homicide or
murder, what is criminal is the killing of
person. Hence, intent to kill is an
indispensable element. Death of the victim
consummates the crime. In hazing, what is
prohibited is the infliction of physical harm.
Hence, intent to kill is not material. Death
of the neophyte is only important to
determine the proper imposable penalty. (b)
Homicide or murder is malum in se.
Consent of the victim to the infliction of
harm may negate dolo or criminal intent,
which would make the killing punishable as
reckless imprudence (Villareal vs. People,
G.R. No. 151258, February 1, 2012). Hazing
is malum prohibitum. Consent of the
neophyte is not a defense. (c) In homicide or
murder, praeter intentionem is appreciable
as a mitigating circumstance. In hazing, the
law expressly disallows the appreciation of
this circumstance. In homicide or murder,
the basis of criminal liability is the actual
and conspiratorial participation of the
offender in killing the victim. In hazing,
criminal responsibility is based on (1)
actual participation in inflicting physical
harm, (2) presumed participation (of those
who are present during the hazing), (3) the
presence of adviser, (4) participation in the
planning (by officers, former officers and
alumni of the fraternity); (5) knowledge (of
the parent of frat member in the home of
whom hazing occurred, owner of the place
commission, and school authorities). (d) In
hazing, taking action to prevent the
occurrence of hazing is a defense by any
offender except (1) those who actually
inflicted physical harm and (2) those
(officers, former officers and alumni of the
fraternity), who planned the hazing.
LOOSE FIREARM
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Section 29 of RA No. 10591
provides:
“SEC. 29. Use of Loose Firearm in
the Commission of a Crime. – The use of a
loose firearm, when inherent in the
commission of a crime punishable under
the Revised Penal Code or other special
laws, shall be considered as an aggravating
circumstance: Provided, That if the crime
committed with the use of a loose firearm is
penalized by the law with a maximum
penalty which is lower than that prescribed
in the preceding section for illegal
possession of firearm, the penalty for illegal
possession of firearm shall be imposed in
lieu of the penalty for the crime
charged:Provided, further, That if the crime
committed with the use of a loose firearm is
penalized by the law with a maximum
penalty which is equal to that imposed
under the preceding section for illegal
possession of firearms, the penalty
of prision mayor in its minimum period
shall be imposed in addition to the penalty
for the crime punishable under the Revised
Penal Code or other special laws of which
he/she is found guilty.
If the violation of this Act is in
furtherance of, or incident to, or in
connection with the crime of rebellion of
insurrection, or attempted coup d’
etat,such violation shall be absorbed as an
element of the crime of rebellion or
insurrection, or attempted coup d’ etat.
If the crime is committed by the
person without using the loose firearm, the
violation of this Act shall be considered as a
distinct and separate offense.”
USE OF LOOSE FIREARM AS
AGGRVATING CIRCUMSTANCE - As a
rule, when use of a loose firearm in
committing is inherent in the commission
of other crime, such circumstance shall be
considered as an aggravating circumstance.
For example, if a loose firearm was used in
committing homicide, the penalty of
reclusion temporal prescribed for shall be
applied in its maximum period.
However, if the penalty for illegal
possession of loose firearm is graver than
that prescribed for other crime committed,
the penalty for the latter shall be applied.
For example, the penalty for simple robbery
is prision correccional in its maximum
period to prision mayor in its medium
period while the penalty for illegal
possession of small arm under Section 28
of RA No. 10591 is prision mayor in its
medium period. If a loose firearm classified
as small arm is used in committing simple
robbery, the penalty of prision mayor in its
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medium period prescribed under RA 10591
shall be imposed.
Furthermore, if the maximum
penalty prescribed for the other crime is
equal to that for illegal possession of loose
firearm, prision mayor in its minimum
period shall be imposed in addition to the
penalty for the other crime. For example,
the penalty of reclusion perpetua is
prescribed for homicide and illegal
possession of a Class B light weapon. If a
loose firearm involving a Class B light
weapon is used to commit homicide, the
penalty of prision mayor in its minimum
period in addition to reclusion perpetua
shall be imposed.
Lastly, if a loose firearm is used in
the commission of rebellion, sedition or
coup ‘d etat, the latter shall be absorbed in
the former.
DISTINCT AND SEPARATE CRIME
- If the crime is committed by the person
without using the loose firearm, the
violation of this Act shall be considered as a
distinct and separate offense (RA No.
10591). Conversely, if the crime is
committed by the person with the use of
loose firearm, illegal possession of loose
firearm is not a separate offense. In such a
case, the illegal possession of loose firearm
shall be considered as an aggravating
circumstance or a special circumstance
that justifies that imposition of graver
penalty or additional penalty, or as a mere
element of rebellion, sedition or coup d’
etat.
QUASABLE INFORMATION - Prior
to RA 8294, the rules obtaining, if the
offender killed a person with the use of
unlicensed firearm, were as follows: (1) use
of unlicensed firearm was not an
aggravating circumstance in murder or
homicide under PD 1866; (2) offender is
liable independently for homicide or murder
and illegal possession of firearm.
Under PD 1866 as amended by RA
8294, the rules, if the offender killed a
person with the use of unlicensed firearm,
are as follows: (1) offender is liable for
homicide or murder with aggravating
circumstance of use of unlicensed firearm;
and (2) the crimes of murder or homicide
and illegal use or possession of firearm are
integrated into a single offense.
In People vs. Bergante, G.R. No.
120369-70, February 27, 1998 - The
violation of PD No. 1866 should have been
punished separately conformably with our
ruling in the case of Quijada G.R. No.
115008-09, July 24, 1996, En Banc.
Nevertheless, fortunately for appellant, PD
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JUDGE MARLO B. CAMPANILLA
No. 1866 was recently amended by RA No.
8294, which provides that “if homicide or
murder is committed with the use of an
unlicensed firearm, such use of an
unlicensed firearm shall be considered as
an aggravating circumstance.” In short,
only one offense should be punished, viz.,
either homicide or murder, and the use of
the unlicensed firearm should only be
considered as an aggravating
circumstance.
In Celino vs. CA, G.R. No. 170562,
June 29, 2007, the Supreme Court ruled
that:
“When the other crime involved is one
of those enumerated under RA 8294 (e.g.
homicide, murder, rebellion, sedition or coup
d’ etat) any information for illegal possession
of firearm should be quashed because the
illegal possession of firearm would have to
be tried together with such other offense,
either considered as an aggravating
circumstance in murder or homicide,, or
absorbed as an element of rebellion,
insurrection, sedition or attempted coup
detat.
When the other crime involved is not
one of those enumerated under RA 8294,
any information for illegal possession of
firearm should not be quashed. The separate
case for illegal possession of firearm should
continue to be prosecuted. Settled is the rule
that an accused cannot be convicted for
illegal possession of firearm if another crime
was committed at the same time. Since
accusation is not synonymous with guilt, it
cannot establish outright that “other crime”
was committed. However, the accused must
be exonerated of illegal possession of
firearms if he is convicted of some other
crime.”
Considering that under RA No.
10591 use of loose firearm is not only an
aggravating circumstance in murder or
homicide but also in other crime such as
robbery or grave threat, the illegal
possession of firearm should not be
considered a separate and distinct crime if
other crime is committed and the use of
loose firearm in inherent therein. Following
the same line of reasoning in the case of
Celino, any information for illegal
possession of firearm should be quashed
because the illegal possession of loose
firearm would have to be tried together
with such other offense, either considered
as an aggravating circumstance in murder
or homicide,, robbery, grave threat, alarm
and scandal, physical injuries or absorbed
as an element of rebellion, insurrection,
sedition or attempted coup detat.
DANGEROUS DRUGS
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POSSESSION OF DRUGS – For a
prosecution for illegal possession of a
dangerous drug to prosper, it must be
shown that (a) the accused was in
possession of an item or an object identified
to be a prohibited or regulated drug; (b)
such possession is not authorized by law;
and (c) the accused was freely and
consciously aware of being in possession of
the drug (David vs. People, Gr No. 181861,
October 17, 2011, Justice Peralta).
This crime is mala prohibita, and, as
such, criminal intent is not an essential
element. However, the prosecution must
prove that the accused had the intent to
possess (animus posidendi) the drugs.
Possession, under the law, includes not
only actual possession, but also
constructive possession. Actual possession
exists when the drug is in the immediate
physical possession or control of the
accused. On the other hand, constructive
possession exists when the drug is under
the dominion and control of the accused or
when he has the right to exercise dominion
and control over the place where it is found.
Exclusive possession or control is not
necessary. The accused cannot avoid
conviction if his right to exercise control
and dominion over the place where the
contraband is located, is shared with
another (Del Castillo vs. People, GR No.
185128, January 30, 2012, Justice
Peralta).
Mere possession of a dangerous
drug per se constitutes prima facie evidence
of knowledge or animus
possidendi sufficient to convict an accused
absent a satisfactory explanation of such
possession - the onus probandi is shifted to
the accused, to explain the absence of
knowledge or animus possidendi (Miclat, Jr.
vs. People, GR No. 176077, August 31,
2011, Justice Peralta).
KNOWLEDGE - Is knowledge an
element of dangerous drugs despite this
crime is malum prohibitum? Yes. For illegal
possession of dangerous drugs, the
prosecution must establish that the
accused freely and consciously possessed
the dangerous drug without authority.
However, mere possession of dangerous
drug constitutes prima facie evidence of
knowledge or animus possidendi sufficient
to convict an accused in the absence of any
satisfactory explanation (Asiatico vs. People,
G.R. No. 195005, September 12, 2011).
ATTEMPTED SALE - “A”, poseur
buyer, asked “X” if he has available “shabu”
for sale. “X” answered in the affirmative and
showed to “A” a plastic sachet containing
shabu. “A” immediately identified himself as
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JUDGE MARLO B. CAMPANILLA
a policeman, and then, apprehended “X”
and confiscated the “shabu” from his
pocket. What is the crime committed by
“X”? “X” is liable for attempted sale of
shabu punishable under Section 26 of RA
9165. Attempt to sell shabu was shown by
the overt act of appellant therein of showing
the substance to the poseur-buyer. The
sale was aborted when the police officers
identified themselves and placed appellant
under arrest (People vs. Figueroa, G.R.
No. 186141, April 11, 2012).
DELIVERY - Is the absence of
marked money as evidence fatal to
prosecution of sale and delivery of
dangerous drugs? No. The law
defines deliver as “a person’s act of
knowingly passing a dangerous drug to
another with or without
consideration.” Considering that the
appellant was charged with the sale and
the delivery of prohibited drugs, the
consummation of the crime of delivery of
marijuana may be sufficiently established
even in the absence of the marked money
(People vs. Domingcil, G.R. No.
140679, January 14, 2004).
LACK OF COORDINATION WITH
PDEA - Silence of the law as to the
consequences of the failure on the part of
the law enforcers to seek the prior authority
of the PDEA cannot be interpreted as a
legislative intent to make an arrest without
such PDEA participation illegal or evidence
obtained pursuant to such an arrest
inadmissible (People vs. Clarite, G.R.
No. 187157, February 15, 2012). Lack of
coordination with the PDEA will not
invalidate a buy-bust operation. Such
coordination is not an indispensable
requirement in buy-bust
operations. Neither Section 86 of Republic
Act No. 9165 nor its Implementing Rules
and Regulations make PDEA’s participation
a condition sine qua non for the conduct of
a buy-bust operation (People vs. Mendosa,
G.R. No. 189327, February 29, 2012)
CONFIRMATORY TEST - In Ambre
vs. People, G.R. No. 191532. August 15,
2012 - In no instance did accused
challenge, at the RTC, the supposed
absence of confirmatory drug test
conducted on her. Accused only
questioned the alleged omission when she
appealed her conviction before the CA. It
was too late in the day for her to do so.
Well entrenched is the rule that litigants
cannot raise an issue for the first time on
appeal as this would contravene the basic
rules of fair play and justice.
PHOTOGRAPHY AND INVENTORY
– Under Section 21 of RA No. 9165, the
apprehending team having initial custody
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UNIVERSITY OF THE PHILIPPINES LAW CENTER
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; However, the
Implementing rules of RA No. 9165 provides
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.
Non-compliance with the
requirements of Section 21 of R.A. No. 9165
will not necessarily render the items seized
or confiscated in a buy-bust operation
inadmissible. Strict compliance with the
letter of Section 21 is not required if there
is a clear showing that the integrity and the
evidentiary value of the seized items have
been preserved, i.e., the items being offered
in court as exhibits are, without a specter
of doubt, the very same ones recovered in
the buy-bust operation. Hence, once the
possibility of substitution has been negated
by evidence of an unbroken and cohesive
chain of custody over the contraband, such
contraband may be admitted and stand as
proof of the corpus delicti notwithstanding
the fact that it was never made the subject
of an inventory or was photographed
pursuant to Section 21 (1) of Republic Act
No. 9165 (David vs. People, Gr No. 181861,
October 17, 2011, Justice Peralta;
Marquez vs. People, G.R. No. 197207,
March 13, 2013; People vs. Morate, GR No.
201156, January 29, 2014; People vs.
Ladip, GR No. 196146, March 12, 2014;
People vs. Bis, GR No. 191360, March 10,
2014).
In People vs. Gonzales, G.R. No.
182417, April 3, 2013 - By way of
exception, Republic Act No. 9165 and its
IRR both state that the non-compliance
with the procedures thereby delineated and
set would not necessarily invalidate the
seizure and custody of the dangerous drugs
provided there were justifiable grounds for
the non-compliance, and provided that the
integrity of the evidence of the corpus
delicti was preserved. But the non-
compliance with the procedures, to be
excusable, must have to be justified by the
State’s agents themselves. Considering that
PO1 Dimla tendered no justification in
court for the non-compliance with the
procedures, the exception did not apply
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JUDGE MARLO B. CAMPANILLA
herein. The absolution of accused should
then follow, for we cannot deny that the
observance of the chain of custody as
defined by the law was the only assurance
to him that his incrimination for the very
serious crime had been legitimate and
insulated from either invention or malice. In
this connection, the Court states that the
unexplained non-compliance with the
procedures for preserving the chain of
custody of the dangerous drugs has
frequently caused the Court to absolve
those found guilty by the lower courts.
CHAIN OF CUSTODY – 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 (People vs.
Constantino, Jr. GR No. 199689, March 12,
2014).
Thus, the following links must be
established in the chain of custody in a
buy-bust situation: first, the seizure and
marking, if practicable, of the illegal drug
recovered from the accused by the
apprehending officer; second, the turn over
of the illegal drug seized by the
apprehending officer to the investigating
officer; third, the turn over by the
investigating officer of the illegal drug to the
forensic chemist for laboratory
examination; and fourth, the turn over and
submission of the marked illegal drugs
seized from the forensic chemist to the
court (People vs. Constantino, Jr. GR No.
199689, March 12, 2014)
MARKING - Crucial in proving the
chain of custody is the marking of the
seized dangerous drugs or other related
items immediately after they are seized
from the accused, for the marking upon
seizure is the starting point in the custodial
link that succeeding handlers of the
evidence will use as reference point.
Moreover, the value of marking of the
evidence is to separate the marked evidence
from the corpus of all other similar or
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related evidence from the time of seizure
from the accused until disposition at the
end of criminal proceedings, obviating
switching, “planting” or contamination of
evidence. A failure to mark at the time of
taking of initial custody imperils the
integrity of the chain of custody that the
law requires (People vs. Constantino, Jr. GR
No. 199689, March 12, 2014)
The rule requires that the marking
of the seized items should be done in the
presence of the apprehended violator and
immediately upon confiscation to ensure
that they are the same items that enter the
chain and are eventually the ones offered in
evidence. There are occasions when the
chain of custody rule is relaxed such as
when the marking of the seized items
immediately after seizure and confiscation
is allowed to be undertaken at the police
station rather than at the place of arrest for
as long as it is done in the presence of an
accused in illegal drugs cases. However,
even a less-than-stringent application of the
requirement would not suffice to sustain
the conviction in this case. There was no
categorical statement from any of the
prosecution witnesses that markings were
made, much less immediately upon
confiscation of the seized items. There was
also no showing that markings were made
in the presence of the accused in this case
(Lopez vs. People, GR No. 188653, January
29, 2014).
Drug peddling in schools is
prevalent; the scenario attending this case
is likely to be repeated many times. To
impose on school personnel the observance
of the same procedure required of law
enforces (like marking) – processes that are
unfamiliar to them – is to set a dangerous
precedent that may eventually lead to the
acquittal of many drug peddlers. To our
mind, the evidentiary value of the seized
specimen remains intact as long as the
school personnel who had initial contact
with the drug/s was able to establish that
the evidence had not been tampered with
when he handed it to the police (Marquez
vs. People, G.R. No. 197207, March 13, 2013)
PARAPHERNALIA WITH TRACES
OF SHABU – In People vs. Matinez, G.R.
No. 191366, December 13, 2010 - This
Court notes the practice of law enforcers of
filing charges under Sec. 11 in cases where
the presence of dangerous drugs as basis
for possession is only and solely in the form
of residue, being subsumed under the last
paragraph of Sec. 11. Although not
incorrect, it would be more in keeping with
the intent of the law to file charges under
Sec. 15 instead in order to rehabilitate first
time offenders of drug use, provided that
there is a positive confirmatory test result
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JUDGE MARLO B. CAMPANILLA
as required under Sec. 15. The minimum
penalty under the last paragraph of Sec. 11
for the possession of residue is
imprisonment of twelve years and one day,
while the penalty under Sec. 15 for first
time offenders of drug use is a minimum of
six months rehabilitation in a government
center. To file charges under Sec. 11 on the
basis of residue alone would frustrate the
objective of the law to rehabilitate drug
users and provide them with an
opportunity to recover for a second chance
at life.
In order to effectively fulfill the
intent of the law to rehabilitate drug users,
this Court thus calls on law enforcers and
prosecutors in dangerous drugs cases to
exercise proper discretion in filing charges
when the presence of dangerous drugs is
only and solely in the form of residue and
the confirmatory test required under Sec.
15 is positive for use of dangerous drugs. In
such cases, to afford the accused a chance
to be rehabilitated, the filing of charges for
or involving possession of dangerous drugs
should only be done when another separate
quantity of dangerous drugs, other than
mere residue, is found in the possession of
the accused as provided for in Sec. 15.
PLANTING OF EVIDENCE - As a
general rule, planting of evidence to
incriminate an innocent person constitutes
the crime of incriminating an innocent
person under Article 363 of RPC. However,
if the incriminatory evidence planted is
dangerous drugs or unauthorized
explosives, loose firearm, the crime
committed is planting of evidence under
RA 9165 for the dangerous drug, PD 1866
as amended by RA 9516 for the explosive
and RA No. 10591.
PLEA BARGAINING - Section 23 of
RA No. 9165, any person charged under
any crime involving dangerous drugs
regardless of the imposable penalty shall
not be allowed to avail of the provision on
plea-bargaining.
TRAFFICKING IN PERSON
Can accused be convicted of illegal
recruitment and trafficking in person for
the same of act of recruiting a person for
prostitution without violating the rule on
double jeopardy? Yes. When an act or acts
violate two or more different laws and
constitute two different offenses, a
prosecution under one will not bar a
prosecution under the other. The
constitutional right against double jeopardy
only applies to risk of punishment twice for
the same offense, or for an act punished by
a law and an ordinance. The prohibition on
double jeopardy does not apply to an act or
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series of acts constituting different offenses
(People vs. Lalli, G.R. No. 195419, October
12, 2011).
Is trafficking in persons limited to
transportation of victims? No. Trafficking in
Persons under Sections 3(a) and 4 of RA
9208 is not only limited to transportation of
victims, but also includes the act of
recruitment of victims for trafficking (People
vs. Lalli, G.R. No. 195419, October 12,
2011).
Is recruitment of the victim for
prostitution with her consent or knowledge
constitutive of the crime of trafficking in
person? Yes. The crime of Trafficking in
Persons can exist even with the victim’s
consent or knowledge (People vs. Lalli, G.R.
No. 195419, October 12, 2011).
ILLEGAL RECRUITMENT
It is well-established in
jurisprudence that a person may be
charged and convicted for both illegal
recruitment and estafa. The reason therefor
is not hard to discern: illegal recruitment is
malum prohibitum, while estafa is mala in
se. In the first, the criminal intent of the
accused is not necessary for conviction. In
the second, such intent is imperative
(People vs. Chua, G. R. No. 187052,
September 13, 2012).
BP BLG. 22
What Batas Pambansa Blg. 22
punished was the mere act of issuing a
worthless check. The law did not look either
at the actual ownership of the check or of
the account against which it was made,
drawn, or issued, or at the intention of the
drawee, maker or issuer. Also, that the
check was not intended to be deposited was
really of no consequence to her incurring
criminal liability under Batas Pambansa
Blg. 22 (Resterio vs. People, G.R. No.
177438. September 24, 2012).
The giving of the written notice of
dishonor does not only supply the proof for
the second element arising from the
presumption of knowledge the law puts up
but also affords the offender due process.
The law thereby allows the offender to avoid
prosecution if she pays the holder of the
check the amount due thereon, or makes
arrangements for the payment in full of the
check by the drawee within five banking
days from receipt of the written notice that
the check had not been paid. The Court
cannot permit a deprivation of the offender
of this statutory right by not giving the
proper notice of dishonor (Resterio vs.
People, G.R. No. 177438. September 24,
2012).
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JUDGE MARLO B. CAMPANILLA
Where the check is drawn by a
corporation, company or entity, the person
or persons who actually signed the check in
behalf of such drawer shall be liable under
this Act." This provision recognizes the
reality that a corporation can only act
through its officers. Hence, its wording is
unequivocal and mandatory – that
the person who actually signed the
corporate check shall be held liable for a
violation of BP 22. This provision does not
contain any condition, qualification or
limitation (Mitra Vs. People and Tarcelo,
G.R. No. 191404. July 5, 2010)
NOTICE OF DISHONOR IN
ESTAFA CASE - The essential elements of
the felony are: (1) a check is postdated or
issued in payment of an obligation
contracted at the time it is issued; (2) lack
or insufficiency of funds to cover the
check; and (3) damage to the payee
thereof. It is criminal fraud or deceit in the
issuance of a check which is made
punishable under the RPC, and not the
non-payment of a debt. The postdating or
issuing of a check in payment of an
obligation when the offender had no funds
in the bank or his funds deposited therein
are not sufficient to cover the amount of
the check is a false pretense or a
fraudulent act. However deceit is
presumed if the drawer of the check fails
to deposit the amount needed to cover his
check within three days from receipt of
notice of dishonor.
a. No notice of dishonor - If there
is no notice of dishonor, the prosecution
can still prove the existence of deceit such
as in a case where the accused knows that
his checking account is closed. The receipt
by the drawer of the notice of dishonor is
not an element of the estafa through
bouncing check.
b. With notice of dishonor - If
there is notice of dishonor, the
presumption of deceit can still be rebutted
by: (1) proof that the check is issued in
payment of a pre-existing obligation or (1)
evidence of good faith, a defense in estafa
by postdating a check. Good faith may be
demonstrated, for instance, by a debtor’s
offer to arrange a payment scheme with
his creditor or making full payment of the
entire amount of the dishonored checks.
However, simply empty promise to pay
complainant the value of the bum checks
issued in order to induce her to part with
her property in favor of accused is not an
evidence of good faith that will rebut the
presumption of deceit. (See: People vs.
Ojeda, G.R. Nos. 104238-58, June 3,
2004, Corona; Lopez vs. People, G.R. No.
166810, June 26, 2008, De Castro;
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Recuerdo vs. People, G.R. No. 168217,
June 27, 2006, )
NOTICE OF DISHONOR IN BP
BLG. 22 - Notice of dishonor of a check to
the maker in BP Blg. 22 must be in
writing. A mere oral notice to the drawer
or maker of the dishonor of his check is
not enough. If the maker or drawer pays,
or makes arrangements with the drawee
bank for the payment of the amount due
within the five-day period from notice of
the dishonor given to the drawer, it is a
complete defense; the accused may no
longer be indicted for violation of Section
1, B.P. Blg. 22. If he is so indicted, he
may set up the payment of the amount
due as a complete defense. Assuming that
the accused had knowledge that he had
insufficient funds in the drawee bank
when he issued the questioned checks, he
could still have paid the checks or made
arrangements with the drawee bank for
the payment of the said checks if he had
been duly notified of their dishonor. In not
sending a notice or letter of dishonor to the
petitioner as required by law, the
complaint deprived the accused of his right
to avoid prosecution for violation of B.P.
Blg. 22 (Sia vs. G.R. No. 149695, April 28,
2004).
In San Mateo vs. People, G.R. No.
200090, March 6, 2013 - Complainant tried
to serve the notice of dishonor to the
accused two times. On the first occasion,
complainant’s counsel sent a demand letter
to accused’s residence at Greenhills, San
Juan which the security guard refused to
accept. Thus, the liaison officer left the
letter with the security guard with the
instruction to hand it to accused. But the
prosecution failed to show that the letter
ever reached accused. On the second
occasion, counsel sent a demand letter to
accused by registered mail which was
returned with the notation "N/S Party Out
12/12/05" and that accused did not claim
it despite three notices to her. Since there is
insufficient proof that accused actually
received the notice of dishonor, the
presumption that she knew of the
insufficiency of her funds cannot arise. For
this reason, the Court cannot convict her
with moral certainty of violation of B.P. 22.
Nevertheless, accused’s acquittal
does not entail the extinguishment of her
civil liability for the dishonored checks. An
acquittal based on lack of proof beyond
reasonable doubt does not preclude the
award of civil damages. For this reason, the
trial court’s directive for San Mateo to pay
the civil liability in the amount representing
the total value of the checks plus 12%
interest per annum from the time the said
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JUDGE MARLO B. CAMPANILLA
sum became due and demandable until
fully paid, stands.
FULL PAYMENT OF AMOUNT OF
DISHONORED CHECKS - The full
payment of the amount appearing in the
check within five banking days from notice
of dishonor is a “complete defense” (Lina
Lim Lao v. CA, 274 SCRA 572) regardless
of the strength of the evidence offered by
the prosecution (Meriz vs. People, G.R. No.
134498, November 13, 2001). The accused
has the burden to establish by convincing,
satisfactory and credible evidence that
payment was made within the grace period
(Arceo vs. People, G.R. No. 142641, July
17, 2006). Exceptions: In Griffith vs. Hon.
Court of Appeals, G.R. No. 129764, March
12, 2002 and in Cruz vs. Cruz, G.R. No.
154128, February 8, 2007 considered full
payment of the check after the expiration
of grace period of five days from receipt of
notice of dishonor. The SC in these cases
applied the “utilitarian doctrine” instead of
the mala prohibita principle. (1) In Griffith,
since the creditor have collected already
more than a sufficient amount to cover the
value of the checks for payment of rentals,
via auction sale, holding the debtor’s
president to answer for a criminal offense
under B.P. 22 two years after said
collection, is no longer tenable nor justified
by law or equitable considerations. (2)
In Cruz vs. Cruz, petitioner made full
payment of the dishonored check after
eleven (11) days from receipt of notice of
dishonor. Respondent filed the complaint
almost six (6) months after the said
payment.
SUSPENSION OF PAYMENT - X in
his capacity as officer of Z corporation
issued a corporate check in favor of A. The
check bounced due to DAIF. Notice of
dishonor was received by X. After three
months, SEC issued order creating the
Management Committee and ordering the
suspension of all pending actions for claims
against Z corporation. (a) Is X liable for
violation of BP Blg. 22?
Answer: Yes. X was formally
notified of the dishonor of the checks.
Yet, it was only more than three
months after, that the SEC issued order
for the suspension of all pending
actions for claims against Z
corporation. Thus, X was not precluded
from making good the checks during
that three-month gap when he received
the letter and when the SEC issued the
order (Tiong Rosario vs. Co, G.R. No.
133608, August 26, 2008)
(b) Would your answer be the same
if the order of suspension was issued before
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UNIVERSITY OF THE PHILIPPINES LAW CENTER
the presentment for payment of the check
when the drawee bank and the sending of
notice of dishonor?
Answer: No. X is not liable for
violation of BP Blg. 22. Considering that
there was a lawful Order from the SEC, the
contract is deemed suspended. When a
contract is suspended, it temporarily ceases
to be operative; and it again becomes
operative when a condition occurs - or a
situation arises - warranting the
termination of the suspension of the
contract. When a contract is subject to a
suspensive condition, its birth takes place
or its effectivity commences only if and
when the event that constitutes the
condition happens or is fulfilled. Thus, at
the time A presented the check for
encashment, it had no right to do so, as
there was yet no obligation due from X
(Gidwani vs. People, GR No. 195064,
January 15, 2014).
ANTI-GRAFT AND CORRUPT PRACTICES
LAW
Section 3(e) of RA 3019 may be
committed either by dolo, as when the
accused acted with evident bad faith or
manifest partiality, or by culpa, as when
the accused committed gross inexcusable
negligence. There is “manifest partiality”
when there is clear, notorious, or plain
inclination or predilection to favor one side
or person rather than another. “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. “Evident bad
faith” contemplates a state of mind
affirmatively operating with furtive design
or with some motive of self-interest or ill
will or for ulterior purposes. “Gross
inexcusable negligence” refers to negligence
characterized by the want of even the
slightest care, acting or omitting to act in a
situation where there is a duty to act, not
inadvertently but wilfully and intentionally,
with conscious indifference to
consequences insofar as other persons may
be affected (Plameras vs. People, GR No.
187268, September 04, 2013).
The rules, regulations and policies
of the COA and those mandated under
the Local Government Code were knowingly
sidestepped and ignored by the petitioner
which enabled CKL to successfully get full
payment for the school desks and
armchairs, despite non-delivery – an act or
omission evidencing bad faith and manifest
partiality. It must be borne to mind that
any procurement or “acquisition of supplies
or property by local government units shall
be through competitive public bidding”. The
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JUDGE MARLO B. CAMPANILLA
petitioner admitted in his testimony that he
is aware of such requirement, however, he
proceeded just the same due to the alleged
advice of the unnamed DECS representative
that there was already a negotiated contract
– a representation or misrepresentation he
willfully believed in, without any
verification. As a Governor, he must know
that negotiated contract can only be
resorted to in case of failure of a public
bidding. As it is, there is no public bidding
to speak of that has been conducted.
Intentionally or not, it is his duty to act in a
circumspect manner to protect government
funds. To do otherwise is gross inexcusable
negligence, at the very least, especially so,
that petitioner acted on his own initiative
and without authorization from the
Provincial School Board (Plameras vs.
People, GR No. 187268, September 04,
2013).
Failure of petitioner as City
Engineer to validate the ownership of the
land on which the canal was to be built
because of his unfounded belief that it was
public land constitutes gross inexcusable
negligence. In his own testimony, petitioner
impliedly admitted that it fell squarely
under his duties to check the ownership of
the land with the Register of Deeds. Yet he
concluded that it was public land based
solely on his evaluation of its appearance,
i.e. that it looked swampy. Moreover, the
undue injury to private complainant was
established. The cutting down of her palm
trees and the construction of the canal were
all done without her approval and consent
(Sanchez vs. People, GR No. 187340,
August 14, 2013).
This crime has the following
essential elements: 1. The accused must be
a public officer discharging administrative,
judicial or official functions; 2. He must
have acted with manifest partiality, evident
bad faith or gross inexcusable negligence;
and 3. 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 (People vs.
Atienza, GR No. 171671, June 18, 2012,
Justice Peralta).
Crime of corruption under Section 3
(e) of RA 3019 may be committed either
by dolo, as when the accused acted with
evident bad faith or manifest partiality, or
by culpa, as when the accused committed
gross inexcusable negligence. There is
“manifest partiality” when there is a clear,
notorious, or plain inclination or
predilection to favor one side or person
rather than another. “Evident bad faith”
connotes not only bad judgment but also
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palpably and patently fraudulent and
dishonest purpose to do moral obliquity or
conscious wrongdoing for some perverse
motive or ill will. “Evident bad faith”
contemplates a state of mind affirmatively
operating with furtive design or with some
motive of self-interest or ill will or for
ulterior purposes. “Gross inexcusable
negligence” refers to negligence
characterized by the want of even the
slightest care, acting or omitting to act in a
situation where there is a duty to act, not
inadvertently but wilfully and intentionally,
with conscious indifference to
consequences insofar as other persons may
be affected (People vs. Atienza, GR No.
171671, June 18, 2012, Justice Peralta)..

The act of destroying the subject

fences without giving any notice to the
private complainant does not amount to
manifest partiality and/or evident bad
faith as indicated in the information. The
same could not be considered evident bad
faith as the prosecution evidence failed to
show that the destruction was for a
dishonest purpose, ill will or self
interest. The fence was destroyed because
it is a tourist spot and it is also a port for
the fishermen (People vs. Atienza, GR No.
171671, June 18, 2012, Justice Peralta).

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