GUZMAN & TAMASHIRO vs.

THE MUNICIPALITY OF TAYTAY,

PALAWAN, and ROMAN SANTOS,
G.R. No. 43626

Fact:

-This case is an appeal to the decision rendered by the CFI which sustained the validity of ordinance 1 sr
1938 of the Mun of Taytay and an award of P20K to Roman Santos;

-The assailed decision was rendered in the case to annul ordinance #1 and cancel exclusive privilege of
fishery granted to Roman Santos under the ordinance, and to enjoin (prohibit) them from fishing in the
Malampaya Sound;

-Petitioners (Guzman & Toshiro) as well as others, where allegedly deprived of the
fishing rights they acquired by virtue of licenses issued by the Secretary of Agriculture
when the Municipality of Taytay granted exclusive Fishing privilege in the Malampaya
Sound;

-Roman Santos , through bidding and public auction, was a grantee to the exclusive
fishery right of the Malampaya Sound for 5 years per ordinance #1;

-Ordinance was accordingly void and illegal because the Municipality was without power
to enact it and the exclusive fishing rights grant was ultra vires because the Mun.
council acted beyond powers;

Issue:

1) Whether or not (WON) the lower court erred in declaring municipal ordinance No. 1, series of
1933, of the municipality of Taytay, Province of Palawan, valid and legal;

2) WON the lower court erred in not declaring the lease of the exclusive privilege of fishery in
Malampaya Sound, ultra vires and void.

Held:

1) & 2) Yes, the Ordinance is invalid as it is incompatible with the Fishery Act:
“as thus provided in section 84 repealing all laws and orders and administrative regulations
incompatible with the provisions of the Fisheries Act. From this it is inferred that the authority
which the municipal councils then had to grant the exclusive privilege of fishery in their
jurisdictional waters or zone has now been limited to the construction of fish corrals and to
the operation of fishponds.”
People of the Philippines vs. Moises Cubelo
G.R. No. L-13678 November 20, 1959

Facts:

-An appeal to the decision of the CFI which finds the Accused guilty for crime of illegal fishing with
explosives;

-Accused pleaded guilty during the arraignment, but appealed the decision on the ground that the
Information failed to allege the intention to fish with explosives hence may not be convicted ith illegal
fishing with use of explosives;

Issue:

-WON the accused cannot be charged guilty;

Held:

-Yes, the act charged in the information against Cubelo that he willfully, unlawfully and feloniously
exploded one stick of dynamite, which explosion resulted in disabling, stupefying and killing a certain
kind of fish, known as tamban valued at ten pesos, comes under the provisions of Section 12 and par. 2
of Republic Act 462.-

That Cubelo exploded the dynamite in order to fish, there can be no doubt. To assume that he exploded
the dynamite in the water just for fun, and that said supposedly innocent pastime unexpectedly resulted
in the killing of a large fish valued at ten pesos, would involve an unreasonable presumption, as well as
an extraordinary coincidence. People do not usually assume the risk of handling explosives such as
dynamite with its consequent dangers to human life, and waste the value of said explosives which could
otherwise be utilized for legitimate purposes, just for fun. And fishes, like those called tamban, are not
so abundant and always near the surface of the sea that any explosion of a stick of dynamite thrown at
random, without any purpose other than for fun, and without aim or deliberation, could not but hit
them as a target with fatal results. The theory of appellant does not appeal to the credulity of this
Tribunal.

-Moreover, the information in the present case is entitled "Illegal Fishing with Explosives", so that there
could have been no doubt in the mind of appellant who was then assisted by counsel, that he was being
charged with exploding dynamite for purposes of fishing illegally,
People of the Philippines vs. Renato Z. Dizon
G.R. No. L-8002, Nov. 23, 1955

Rules of Adjudication of Fishery Law Cases

R.A. 10654-Amended Fishery Act- Implementing Rules and Regulation

Dept. of Agriculture Administrative Order No. 10, Series of 2015

CHAPTER VII

ADMINISTRATIVE ADJUDICATION (n)

SEC. 130. Administrative Adjudication. – The Department is hereby empowered to impose

the administrative fines and penalties provided in this Code.

For this purpose, the Department shall organize and designate the composition of the

Adjudication Committee, which shall be composed of the bureau director as chairperson and

four (4) other members to be designated by the Secretary. The Adjudication Committee shall

be supported by sufficient number of staff to enable it to perform its mandate.

The Committee shall promulgate rules and regulations for the conduct of administrative

adjudication and the disposition of confiscated catch, gears, equipment and other

paraphernalia. It shall also issue subpoena duces tecum and ad testificandum in

administrative cases before it.

Rule 130.1. Composition and Selection of Members of the Adjudication Committee. – The

Adjudication Committee shall be composed of the Director of DA-BFAR, as Chairperson,

and the following four (4) other members to be designated by the Secretary:
a. DA-BFAR Assistant Director for Technical Services;

b. DA-BFAR Assistant Director for Administrative Services;

c. Representative of the municipal fisherfolk sector in the NFARMC; and

d. Representative of the commercial fishing sector in the NFARMC.

The NFARMC members representing the municipal fisherfolk sector and commercial fishing

sector shall choose their respective representative to the Adjudication Committee.

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The term of membership of the representatives of the municipal fisherfolk and commercial

fishing sectors in the Adjudication Committee shall end upon the expiration of their term as

members of the NFARMC; provided that, the incumbent members of the Adjudication

Committee shall serve in a holdover capacity until such time that their successors are

appointed.

Within fifteen (15) days from designation by the Secretary as members of the Adjudication

Committee, the municipal fisherfolk and commercial fishing sector representatives shall fully

disclose their interests, or the absence thereof, in fisheries related activities, in an affidavit.

Failure to fully disclose shall be a ground for the revocation of the designation of the

representative, without prejudice to the designation of another representative to the

Adjudication Committee from among the remaining members of the NFARMC representing

the sector.

Rule 130.2. Support Staff. – The Adjudication Committee shall be supported by the following

staff:

a. Secretariat – The Director shall designate sufficient staff at the national and regional

offices of DA-BFAR to provide administrative support to the Adjudication Committee.

Upon designation as secretariat staff, the Bureau personnel shall not be assigned any

other task related to regulation, licensing or enforcement.

b. Hearing Officers – The Adjudication Committee shall designate sufficient number of

hearing officers at the national and regional offices to provide assistance in the

handling of cases for administrative adjudication, including: reception of all

pleadings, except the initiatory pleading or complaint; service of summons, subpoena

and other processes; reception and evaluation of evidence; review of records for

completeness prior to submission to the Adjudication Committee for decision; and

such other responsibilities that the Committee may assign. During the pendency of a

case, the Hearing Officers shall not be assigned any other task related to regulation,

licensing or enforcement.

Rule 130.3. Rules of Procedure.– The Adjudication Committee shall, within three (3) months

from its first regular meeting, promulgate rules of procedure for the conduct of

administrative adjudication, consistent with this IRR, and after public consultation.

SEC. 131. Commencement of Summary Administrative Action. – The Department shall, on

its own instance or upon verified complaint by any person, institute administrative

proceedings against any person who violates any order, rule or regulation issued by the

Department, pursuant to this Code.

Rule 131.1. Commencement of Administrative Action. – Administrative action is

commenced upon filing of a verified complaint before the Adjudication Committee, through

the Secretariat, provided, that in cases initiated by the Bureau, the law enforcement officer

shall file the complaint before the Adjudication Committee immediately after completion of

the investigation of the violation.

The verified complaint must be supported by affidavits of witnesses and documentary

evidence.

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Rule 131.2. Offer to Settle. – Prior to the commencement of any criminal action in court, the

violation may be subject to an administrative settlement based on a schedule to be

promulgated by the Adjudication Committee; provided, however, that the settlement penalty

shall not be lower than thirty percent (30%) of the minimum of the imposable penalty

prescribed under the law; Provided, further, that the settlement penalty imposed after the

filing of an Answer or responsive pleading but before a decision is rendered, shall not be

lower than 50% of the imposable penalty under the law.

An offender may avail of an administrative settlement, as a matter of right, twice within the

three-year period of their license. Thereafter, the acceptance of an offer to settle shall be
decided upon by the Adjudication Committee.

Rule 131.3. Formula in the Computation of Penalties. – In determining the settlement

penalty to be imposed, the following formula shall be used:

Settlement Penalty= (ACTUAL GT ÷ MAX GT) x Compromise Rate x

Minimum Penalty amount

In case the formula is inapplicable, the rate in Rule 131.2 shall apply.

Rule 131.4. Effect of Entering into a Settlement. – A settlement, through the written offer of

the offender, approved by the Adjudication Committee, shall not be considered as an

admission of any liability, provided, that an offer to settle made and accepted after the filing

of an Answer or any responsive pleading, but before the promulgation of judgment, shall

warrant a higher rate.

SEC. 132. Power to Issue Cease and Desist Orders and to Summarily Evict Without the

Necessity of Judicial Order. – The Department shall, subject to the requirements of

administrative due process, issue cease and desist order/s upon violator/s and to summarily

eject, without the necessity of judicial order, the holder of FLA, other tenurial instrument,

permit or license from areas of the public domain covered by such FLA, tenurial instrument,

permit or license.

Rule 132.1. Cease and Desist Order. – The DA-BFAR Director and the Regional Directors

are hereby deputized to issue Cease and Desist Orders upon violators of this Code or other

fishery laws, rules and regulations, after compliance with the guidelines promulgated by the

Adjudication Committee.

Rule 132. Summary Ejectment Order. – The DA-BFAR Director and the Regional Directors

are hereby deputized to issue Summary Ejectment Orders to implement the decision of the

Adjudication Committee in FLA-related cases or other cases involving violations of this

Code, after compliance with the guidelines promulgated by the Adjudication Committee.

SEC. 133. Authority of the Director of the BFAR or the Duly Authorized Representative to

Issue Notice of Violation and Order Confiscation. – In all cases of violations of this Code or

other fishery laws, rules and regulations, the Director of the BFAR or the duly authorized
representative, may issue notice of violation and order the confiscation of any fish, fishery

species or aquatic resources illegally caught, taken or gathered, and all equipment,

paraphernalia and gears in favor of the Department, academic institutions or LGUs and to

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dispose of the same in accordance with pertinent laws, rules, regulations and policies on the

matter.

Rule 133.1. Notice of Violation. – The authorized representatives of the Bureau shall issue

Notices of Violation (NOV) of this Code or other fishery laws, rules and regulations

immediately upon apprehension or arrest of the offender. The NOV shall be issued to the

offender, owner on record of the vessel or gear. The arresting officer shall ensure receipt of

the NOV.

Rule 133.2. Seizure Receipt. – A Seizure Receipt shall be issued to the offender together with

the NOV containing an inventory of fish, fishery species or aquatic resources that are

subjects or proceeds of the offense committed and all fishing equipment, paraphernalia and

gears that may be confiscated as provided for by law. Such receipt shall be signed by the

authorized representative of the Bureau and a witness.

A Proof of Receipt, attesting to the fact that the offender was issued an NOV, and a Seizure

Receipt, shall likewise be prepared by the authorized representative of the DA-BFAR, for the

signature of the offender; Provided that, if the offender refuses to sign the receipt, such fact

shall be indicated in the document and attested to by the authorized representative of the

Bureau and a witness.

Rule 133.3. Effect of the Issuance of a Notice of Violation. – A Notice of Violation shall

inform the apprehended party of the offense committed, the imposable penalties for the

violation, the fact that he will be charged administratively before the Adjudication

Committee, and that he may offer a settlement in accordance with these rules. Provided, that

upon offer and acceptance of an offer to settle, the offender will not be administratively

charged before the Adjudication Committee.

Rule 133.4. Effect of the Issuance of a Seizure Receipt. – The seizure receipt:

1. Allows the authorized representatives to seize any fish, fishery species or aquatic
resources illegally caught, taken or gathered on behalf of the government, for

distribution to LGUs, orphanages, homes for the aged, and similar charitable

institutions, as they may deem appropriate, after the proper documentation necessary

for adjudication and/or litigation purposes have been taken.

2. Allows the authorized representatives to seize on behalf of the government, regardless

of a settlement, the following:

a. fish, fishery species or its products or by-products prohibited by law to be

possessed, transported or traded;

b. fishing equipment, paraphernalia or gears prohibited by law to be used in

fishing;

c. fishing equipment, paraphernalia or gears prohibited by law to be possessed,

transported or traded without the necessary permit;

d. fish, fishery species, aquatic resources, its products or by-products, fishing

gear, equipment or paraphernalia abandoned by the offender during the

conduct of law enforcement operations; and

e. other items prohibited by law.

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Rule 133.5. Disposition of Confiscated Items. – The confiscated items shall be disposed as

follows:

1. Turn-over living aquatic wildlife to the aquatic wildlife rescue centers recognized by

the DA-BFAR for rehabilitation before release to the wild;

2. Turn-over dead aquatic wildlife to the nearest DA-BFAR Regional or Provincial

Fisheries Office; and

3. Dispose confiscated gears, paraphernalia and equipment, in accordance with the

guidelines to be promulgated by the Adjudication Committee.

SEC. 134. Prohibition on the Issuance of Temporary Restraining Orders, Preliminary

Injunctions, and Preliminary Mandatory Injunctions. – No injunction or restraining order

from the Municipal Trial Courts and Regional Trial Courts shall lie against the Department

and BFAR upon the ex parte motion or petition filed by any person or entity in the exercise
by the Department and BFAR of its regulatory functions in support of the implementation of

this Code.

Rule 134.1. Prohibition of Issuance of TRO, Preliminary Injunction, and Preliminary

Mandatory Injunction. – Except the Supreme Court, no court can issue a TRO or a writ of

preliminary injunction against lawful actions of government agencies that enforce the

Fisheries Code or prevent the violations thereof.

SEC. 135. Accompanying Administrative Sanctions for Serious Violations. – The

Adjudication Committee may impose the following additional sanctions to the administrative

penalties imposed for serious violations:

(1) confiscation of fishing gear;

(2) impoundment of fishing vessel;

(3) temporary suspension or permanent revocation of license or permit;

(4) temporary or permanent ban from the availment of applicable duty and tax rebates;

(5) inclusion in the IUU fishing vessel list;

(6) denial of entry and other port services;

(7) blacklisting; and,

(8) increase in the amount of fines but not to exceed five (5) times the value of the catch. In

case of repeated violations within a five-year period, the amount of fine may be increased up

to eight (8) times the value of the catch.

During the pendency of the administrative or the criminal case, the Department may impound

the vessel/conveyance, gear and other paraphernalia used in the commission of the offense.

In applying these accompanying sanctions, the Department shall take into account the

seriousness of the violation as defined in Paragraph 82 of Section 4 of this Code, the

habituality or repetition of violation, manner of commission of the offense, severity of the

impact on the fishery resources and habitat, socioeconomic impact, cases of concealment or

destruction of evidence, eluding arrest, resisting lawful orders, and other analogous

circumstances.

The overall level of sanctions and accompanying sanctions shall be calculated in a manner

that is proportionate, effective and dissuasive to deprive the offender of the economic benefits
derived from the serious violation.

78

Rule 135.1. Habituality. – For purposes of determining habituality in the imposition of

additional sanctions for serious violations, a habitual offender is a person who had

previously been convicted or found administratively liable, of the same offense or of three (3)

serious violations within a period of three (3) years.

SEC. 136. Lien Upon Personal and Immovable Properties of Violators. – Fines and penalties

imposed pursuant to this Code shall constitute a lien upon the personal and immovable

properties of the violator.

Rule 136.1. Lien upon Personal and Immovable Properties of Violators. – The order of

preference of credit as provided for by existing laws shall be respected. The execution of

liens shall be in accordance with the Rules of Court.

SEC. 137. Community Service. – In case the offender is a municipal fisherfolk or has no

property over which the Department may impose the fines and penalties prescribed for the

offense, community service may be rendered in lieu of the fine. The Department shall

promulgate the rules and regulations for this purpose, taking into account that the service

should be rendered in accordance with needs of the community where the offense is

committed and computed based on the fine and the prevailing minimum wage in the

community, among others.

Rule 137.1. Application. – The Adjudication Committee shall promulgate the rules regarding

the imposition of the alternative penalty of community service in lieu of the fines and

penalties prescribed for the offenses. The Adjudication Committee may impose the alternative

penalty of community service only upon the application of the offending municipal fisherfolk

or upon the application and proof by an offender who has no property.

Rule 137.2. Type of Community Service.– In imposing the alternative penalty of community

service, the adjudication committee shall prioritize those types of community service that

relate to fishery or fishery resource management and conservation.

Rule 137.3. Examples of Community Services. – Community services may include:

a. planting of mangroves in mangrove areas or river embankments;

b. rendering services for a certain period to a community-managed mangrove nursery,

marine finfish hatchery or community fish landing center;

c. capacitating the fisherfolks and their families, in the community where the offense

was committed, through the conduct of alternative livelihood seminars, free health

programs/ medical missions, or provision of educational materials/supplies;

d. developing an information, education campaign material on fishery and fishery

resource management and conservation and disseminating the same;

e. participating in or undertaking a coastal clean-up operation; or

f. organizing other activities that will redound to the benefit of the community where the

violation was committed.

SEC. 138. Citizen’s Suits. – For the purposes of enforcing the provisions of this Code and its

implementing rules and regulations, any citizen may file an appropriate civil, criminal or

administrative action in the proper courts/bodies against:

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(a) Any person who violates or fails to comply with the provisions of this Code, and its

implementing rules and regulations;

(b) The Department or other implementing agencies with respect to orders, rules and

regulations issued inconsistent with this Act; and

(c) Any public officer who willfully or grossly neglects the performance of a duty specifically

enjoined by this Code and its implementing rules and regulations; or abuses authority in the

performance of duty; or, in any manner improperly performs duties under this Code and its

implementing rules and regulations: Provided, however, That no suit can be filed until after

fifteen (15) days notice has been given the public officer and the alleged offender and no

appropriate action has been taken thereon.

Rule 138.1. Process. – The filing of citizen's suits in an administrative proceeding shall be in

accordance with the rules to be promulgated by the Adjudication Committee.

SEC. 139. Strategic Lawsuit Against Public Participation (SLAPP) in the Enforcement of this

Act. – A legal action filed to harass, vex, exert undue pressure, or stifle any legal recourse

that any person, institution, or the government has taken or may take in the enforcement of
this Code shall be treated as a Strategic Lawsuit Against Public Participation (SLAPP).

The hearing on the defense of a SLAPP shall be summary in nature, the affirmative defense

of a SLAPP shall be resolved within thirty (30) days after the summary hearing. If the court

dismisses the action, the court may award damages, attorney’s fees, and costs of suit under a

counterclaim if such has been filed. The dismissal shall be with prejudice.

If the court rejects the defense of a SLAPP, the evidence adduced during the summary

hearing shall be treated as evidence of the parties on the merits of the case. The action shall

proceed in accordance with the Rules of Court.

The Rules of Procedure for Environmental Cases shall govern the procedure in civil,

criminal, and special civil actions involving the enforcement or violations of this Code

including actions treated as a SLAPP as provided in this section.

Rule 139.1. SLAPP in the Enforcement of the Code. – The provisions of Rules 6 and 19 of

the Rules of Court for Environmental Cases apply.

SEC. 140. Fisheries National Administrative Register.

– The Adjudication Committee shall enter in a Fisheries National Administrative Register, which shall be
publicly available, all decisions, resolutions or orders involving violations of this Code, particularly
seriousviolations committed by Philippine flagged vessels or by Philippine nationals and cases on

poaching or involving foreigners, including the penalties imposed.

Rule 140.1. Development of a Fisheries National Administrative Register.

– The Adjudication Committee, within three (3) months from the effectivity of this IRR, shall

develop and maintain a Fisheries National Administrative Register.

Argoncillo, Balbona and Umiten vs. Court of Appeals and the People
of the Philippines,

Facts

This is a petition to review the decision 1 of the Court of Appeals which affirmed in toto the decision of
the Regional Trial Court of Roxas City, Branch 15, 2 finding petitioners herein guilty of "illegal fishing with
the use of an explosive,"
Issue:

WON finding of guilt for illegal fishing with dynamite and use of explosives is proper when neither
explosives nor related paraphernalia were found in the possession of the accused.

Held:

The discovery of dynamite, other explosives and chemical compounds containing combustible elements,
or obnoxious or poisonous substance, or equipment or device for electric fishing in any fishing boat or in
the possession of a fisherman shall constitute a presumption that the same were used for fishing in
violation of this Decree, the discovery in any fishing boat of fish caught or killed by the use of explosives,
obnoxious or poisonous substance or by electricity shall constitute a presumption that the owner,
operator or fisherman were fishing with the use of explosives, obnoxious or poisonous substance or
electricity.

In Hizon vs. Court of Appeals, 10 this Court held that the law, as contained in the last paragraph of
Section 33, creates a presumption that illegal fishing has been committed when fish caught or killed
with the use of explosives, obnoxious or poisonous substances or by electricity are found in a fishing
boat. In this case, it cannot be denied that the fishes found in petitioners' banca were caught or killed by
the use of explosives.
Rosendo De Borja vs Pinalakas na Ugnayan ng Maliliit na Mangingisda
ng Luzon, Mindanao at Visayas ("PUMALU-MV")
G.R. No. 185348

Facts:

-This is appeal to the decision of the CA which overturned the RTC decision because of prematurity;

- The RTC case was initiated by Rosendo de Borja under Declaratory Relief in order for the court to
clarify the seemingly conflicting provision the Fishery Code regarding the principle to be followed in
delineation of the 15 kilometers Municipal Waters;

-The two rules are:

1) Mainland principle- under this principle the 15 kilometer shall be reckoned from the coastline
of the mainland including the offshore;

2) Archipelagic principle- measurement of municipal waters shall be reckoned from the

outermost off shore island;

-NAMRIA: mainland doctrine applies when the municipality has no off shore island and
Archipelago principle applies if otherwise;

-Office of Sol. Gen: confusion was because of DENR’s administrative order (DAO 17) which was
later on revoked in accordance to DOJ’s opinion and further stated that it is the Dept. of
Agriculture which has jurisdiction and not DENR.

-OSG’s opinion was that: archipelagic principle espoused in the Constitution is used in the
definition of the territory vis-a-vis other states and relevant only on issues such as intrusion to
territorial waters by the foreign vessels;

-RTC agreed with the OSG and ruled that mainland principle should be applied,

-CA reversed and set aside the decision for prematurity for failing to meet the two requisites under
action for Declaratory Relief which are: 1) Justiciable Controversy, and 2) Ripeness for Judicial
Determination

Issue:

WON petition for declaratory relief is proper;

Held:

No, it fails to show the requisites.

For a petition for declaratory relief to prosper, it must be shown that (a) there is a justiciable
controversy, (b) the controversy is between persons whose interests are adverse, (c) the party seeking
the relief has a legal interest in the controversy, and (d) the issue invoked is ripe for judicial
determination. We agree with the CA when it dismissed De Borja's petition for being premature as it
lacks the first and fourth requisites. We hasten to add that the petition, in fact, lacks all four requisites.

People of the Philippines vs. Sotero Anito

G.R. No. L-6866 September 28, 1954

Fact:

-Sotero Anito was caught in the act of fishing with dynamite in Manjuyod Negros Oriental. In his pocket
was found a package of explosive powder with blasting cap. But he had no license either from the
Secretary of Agriculture or the Chief of Constabulary.

-Prosecuted for violation of Commonwealth Act No. 471 (illegal fishing) he pleaded not guilty. In another
information he was charged with illegal possession of the explosive powder and cap in violation of Act
No. 3023. He moved for dismissal of this second information, citing the first prosecution for illegal
fishing and contended that he was being placed in double jeopardy for one single offense. The trial
judge sustained the motion. Hence this appeal by the fiscal.

Issue:

WON there is double jeopardy;

Held:

No. One offense is distinct from the other. When a man fishes with explosives, he violates the first
mentioned law or the second, or both, or he may commit no offense at all. No offense, if he obtained
licenses from both the Secretary of Agriculture and the Chief of Constabulary. He infringes the first (and
not the second) if he has no license from the Agriculture Secretary, but he has license from the Chief of
Constabulary. He transgresses the second but not the first if he holds no license from the Constabulary,
but he wields a permit from the Agriculture Secretary. He transgresses both laws as in this case, when
he exhibits no license at all.

The trial judge reasoned out that "one cannot fish by the use of explosives without possessing the
explosives to be used" and "prior to actually committing the offense of illegal fishing the accused must
be technically liable for the offense of illegal possession." The error in this reasoning lies in the
assumption that anyone illegally fishing with explosives is necessarily guilty of illegal possession of
explosives. Such assumption is groundless, a person may be guilty of the first, without being guilty of the
second — if he has a permit of the Chief of Constabulary.

G.R. No. 118816 July 10, 1998

SANTIAGO ARGONCILLO, RICHARDO BALBONA and POLICARPIO UMITEN, petitioners,

vs.

COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.

KAPUNAN, J.:

This is a petition to review the decision 1 of the Court of Appeals which affirmed in toto the decision of
the Regional Trial Court of Roxas City, Branch 15, 2 finding petitioners herein guilty of "illegal fishing with
the use of an explosive," the dispositive portion of which reads:

WHEREFORE, the Court finds the accused, Policarpio Umiten, Santiago Argoncillo and Richard Balbona,
guilty beyond reasonable doubt for the crime of illegal fishing with the use of an explosive punishable
under Section 33 in relation to Section 38 of Presidential Decree No. 704 dated May 16, 1975 as
amended by Presidential Decree No. 1058 dated December 1, 1976 and each shall suffer a straight
penalty of twenty (20) years imprisonment.

However, accused, Johnson Sucgang, Elvis Villar and Efren Alvaro, are acquitted for failure of the
prosecution to prove their guilt beyond reasonable doubt.

The fish sample is forfeited in favor of the government.

Considering the penalty imposed upon the accused, Policarpio Umiten, Santiago Argoncillo and Richard
Balbona, the bail bond for their provisional liberty is increased to Twenty Thousand (P20,000.00) Pesos
each effective immediately upon promulgation. They shall not be released from detention until they put
up an appropriate bail bond for their provisional liberty.

The property bond of accused, Johnson Sucgang, Elvis Villar and Efren Alvaro, are deemed cancelled.
Costs against the convicted accused.

SO ORDERED. 3

On August 1, 1990, an Information was filed by the Provincial Fiscal of Capiz charging Johnson Sucgang,
Policarpio Umiten, Elvis Villar, Santiago Argoncillo, Richardo Balbona and Efren Alvaro with illegal fishing
(with the use of dynamite), as follows:

That at or about 6:30 o'clock [sic] in the evening of May 7, 1990, in the sea water of Barangay Basiao,
Ivisan, Capiz, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and helping one another, wilfully, unlawfully and feloniously catch, take,
gather and have in their possession and control different species of fish with the use of explosives. 4

Upon arraignment on September 11, 1990, the accused, with the assistance of counsel, pleaded "not
guilty" to the offense charged. Trial ensued thereafter.

The lower court synthesized the evidence presented by the prosecution as follows: 5

Due to reports of rampant illegal fishing at Barangay Basiao, Ivisan, Capiz, personnel from the
Department of Agriculture and Natural Resources specifically from the Bureau of Fisheries as well as the
Barangay Captain of said place assisted by the local policemen created a team to conduct surveillance
within the Ivisan Bay. Thus, around 5:30 in the afternoon of May 7, 1990, a team riding in two (2)
pumpboats from the Barangay Basiao wharf proceeded along the waters of Ivisan Bay. Riding in one
pumpboat were Persinefles U. Oabe, the Barangay Captain of said place; Rolando Amoroso, an
employee of the Bureau of Fisheries; Pat. Rafael Tupaz, a member of the local Integrated National Police
and Remegio Unasin, a barangay councilman who acted as the pilot. In the other pumpboat were Joey
de la Cruz, a co-employee of Rolando Amoroso; Pat. Reggie Uadan and Enido Baldesimo. Now and then,
the team had to stop and listen for possible occurrences of illegal fishing within their vicinity. Around
6:30 of the same evening while standing by with their engines off, in a place facing Barangay Culasi, they
heard an explosion. Sensing it was caused by dynamite, they proceeded to the area around five hundred
meters (500 m.) away from them.

After ten minutes of navigation, the team arrived at the scene in question which was near an islet. They
surrounded the area. At a distance of around ten meters, Joey de la Cruz, an employee of the Bureau of
Fisheries and Aquatic Resources, saw three persons diving into the water. Thereafter, they would
surface and throw their catch of fish to the unmotorized banca around four meters long nearby. In the
seashore of said islet, around three to four meters away from these three persons floating in the water,
were three other persons standing in the rocky portions around three meters apart. These six persons
tried to escape but Rolando Amoroso, the co-employee of Joey de la Cruz, advised them not to do so
and introduced themselves as law enforcers. The team found out that the fishes they caught were deep
sea fish of four kinds locally known as "vulgan," "bulawis," "pacol," and "bag-angan." Joey de la Cruz
gathered seven fish samples from their banca while Rolando Amoroso went down from the pumpboat
and proceeded to the islet. However, upon inspection, he failed to find any explosive (dynamite) either
on the seashore or on the banca. No paraphernalia used in dynamite fishing were found. Both Joey de la
Cruz and Rolando Amoroso recognized the six persons as the herein accused by their faces.

Persinefles U. Oabe, barangay captain of Barangay Basiao, who was with the team riding in a pumpboat
with Rolando Amoroso identified the three persons retrieving fish from the water as Policarpio Umiten,
Santiago Argoncillo and Richard Balbona while the other three persons standing on the rocky portions of
the islet as Johnson Sucgang, Elvis Umiten and Efren Alvaro.

The team apprehended the six accused and brought them to the fish cage of the barangay captain
located within the same barangay. While on their way, Joey de la Cruz externally examined the fish
samples.

Upon their arrival at the fish cage, another external examination was conducted by Joey de la Cruz and
Rolando Amoroso. In both external examinations, the two found out that the fishes were caught with
the use of explosives because blood was oozing from their operculums and their eyes were protruding.

An on-the-spot investigation was conducted but the accused denied any culpability. They were then
released on the strength of their promise to report to the local police the following day.

The fish samples were then placed in a plastic bag filled with ice at the house of Barangay Captain
Persinefles U. Oabe that evening. In the morning, Joey de la Cruz and Rolando Amoroso brought the fish
samples to their office in Roxas City where they conducted an internal examination. The examination
revealed that the fish samples were caught with the use of explosives because their air bladders were
raptured and deeply stained with blood; the vertebral columns were broken but with bloodstains; their
ribs were broken; and there were blood clots in their abdomens. Joey de la Cruz and Rolando Amoroso
rendered a written report of their internal examination to the Provincial Agricultural Officer.

The testimonies of Joey de la Cruz, Rolando Amoroso, and Persinefles U. Oabe above were corroborated
by Pat. Rafael Tupaz, one of the police escorts of the team.
Sgt. Sergio Ordales, a member of the local police of the municipality of Ivisan testified that while on duty
in the morning of May 8, 1990, herein six accused arrived at their station. He asked why they were there
and they answered that they were told to report to the police station. He learned from them that they
were arrested for illegal fishing with the use of explosives.

On the other hand, the lower court portrayed the evidence presented by the version of the defense,
thus:

All the accused denied the imputation of the prosecution.

Policarpio Umiten, Santiago Argoncillo, Richard O. Balbona were uniform in alleging that around 4:00 in
the afternoon of May 7, 1990, they dropped a fishnet about two hundred (200) "armslength" and one
(1) meter in width at the scene where they were apprehended. This method they locally call "patuloy"
requires that the fishnet be retrieved every hour to collect its catch. The trio went back to the place near
the islet in question around 6:30 in the evening for the purpose of collecting their catch from the
fishnet. They had not been able to collect all their catch from the net when the team of law enforcers,
prosecution witnesses herein, arrived. They were asked whether they heard an explosion. After they
denied having heard any, Barangay Captain Persinefles U. Oabe, told the accused to go with them. The
team got seven pieces of fish samples. The accused left around one and one-half kilos of fish they had
gathered at the time the team of law enforcers arrived. They were then brought to the fish cage owned
by Persinefles U. Oabe at Barangay Basiao.

Above three accused would like the Court to believe that the seven pieces of fish samples taken by the
team of fishing law enforcers were the catch of their fishnet they locally called "patuloy."

On the other hand, Elvis Villar testified that he and Efren Alvaro were together in going to the islet in
question, riding in an unmotorized banca to gather shells locally called "suso" and "butlogan" for viand.
Both started gathering shells under the stones in the islet around 5:30 in the afternoon. While they were
preparing to go home at around 6:30 in the evening, the team of law enforcers riding in motorized
pumpboats arrived. The barangay captain and the personnel from the Bureau of Fisheries and Aquatic
Resources asked them whether they heard an explosion. After they denied having heard any, they were
told by the barangay captain to board their pumpboats. They obliged, leaving the shells they had
gathered. They were then brought to the fish cage of the barangay captain.

Although accused Johnson Sucgang admitted his presence in the islet in question, he offered a different
explanation. He testified that he went to said place to look for "pulutan" requested by his customer,
Wilfredo Arcangeles. Being an operator and manager of Virgen Beach Resort located at Sitio
Manangkalan, he obliged. Thus, between 5:00 to 5:30 in the afternoon of May 7, 1990, he left his resort
riding in a banca. He paddled his way towards the islet where he saw two persons at the bank while the
other three were on the water. He went ashore. Later, the barangay captain and his companions riding
in two pumpboats arrived. Like his co-accused, he was asked if he heard an explosion. After he denied
hearing any, the barangay captain told him to go with them. They were all brought to the fish cage of
the barangay captain for questioning.

Wilfredo Arcangeles corroborated the claim of Johnson Sucgang. He confirmed that he requested the
latter to look for "pulutan" since he had visitors from Bacolod City prompting Johnson Sucgang to look
for some. He saw the accused leave in a banca and affirmed that he had no dynamite with him. 6

On September 30, 1991, the trial court rendered its decision which, as stated at the beginning, was
affirmed by the Court of Appeals.

Hence, this petition.

Petitioners point out that the fact that neither explosives nor related paraphernalia were found in their
possession is an indication of their innocence.

We do not agree. First, it is quite probable that petitioners dumped these materials into the sea while
the raiding party was approaching. Moreover, Section 33, Presidential Decree No. 704, as amended by
Presidential Decree No. 1058, provides:

Sec. 33. Illegal fishing; . . . — It shall be unlawful for any person to catch, take or gather, or cause to be
caught, taken or gathered fish or fishery/aquatic products in Philippine waters with the use of
explosives, obnoxious or poisonous substance, or by the use of electricity as defined in paragraphs (l), 7
(m) 8 and (d), 9 respectively, of Sec. 3 hereof . . .

xxx xxx xxx

The discovery of dynamite, other explosives and chemical compounds containing combustible elements,
or obnoxious or poisonous substance, or equipment or device for electric fishing in any fishing boat or in
the possession of a fisherman shall constitute a presumption that the same were used for fishing in
violation of this Decree, the discovery in any fishing boat of fish caught or killed by the use of explosives,
obnoxious or poisonous substance or by electricity shall constitute a presumption that the owner,
operator or fisherman were fishing with the use of explosives, obnoxious or poisonous substance or
electricity.

In Hizon vs. Court of Appeals, 10 this Court held that the law, as contained in the last paragraph of
Section 33, creates a presumption that illegal fishing has been committed when fish caught or killed with
the use of explosives, obnoxious or poisonous substances or by electricity are found in a fishing boat. In
this case, it cannot be denied that the fishes found in petitioners' banca were caught or killed by the use
of explosives.

The Report 11 of Bureau of Fisheries employees Joey de la Cruz and Rolando Amoroso states:

Republic of the Philippines

Department of Agriculture

Roxas City

1990-05-08

The Provincial Agricultural Officer

Department of Agriculture

Roxas City

Sir:

I have the honor to submit to this office the result of the scientific fish examination conducted on the
fish samples taken from the possession of Mr. Johnson Umiten Sucgang, 38 years old, married and
resident of Barangay Basiao, Ivisan, Capiz and company on May 7, 1990, 6:30 PM by combined elements
of the Department of Agriculture, PC/INP Unit of Ivisan, Capiz and Barangay officials of Basiao, Ivisan,
Capiz conducting sea borne patrol on illegal fishing.
Source of fish samples : Sea water of Brgy., Basiao, Ivisan,

Capiz

Fish samples taken from : Johnson U. Sucgang, 38 years old,

married, of Brgy., Basiao, Ivisan,

Capiz, et. al.

Date fish samples taken : May 7, 1990 at 6:30 PM

Date fish samples examined : May 7, 1990 at 7:00 PM

Name offish samples taken Number Weight Value

Local Name

Bulawis 2 pcs. 300 gms P 8.00

Bulgan 2 pcs. 200 gms 10.00

Pakol 1 pc. 100 gms 2.00

Bag-angan 1 pc. 150 gms 3.00

Bukod 1 pc. 150 gms 3.00

Characteristics noted on the fish examined:

1. External Manifestation

a. Blood, oozing on the operculum.

2. Internal Manifestation

a. Air bladder raptured deeply stained with blood;

b. Vertebral column broken with blood stain.

Conclusion:

The fish samples manifested signs that said fish were caught or killed by the use of explosives.

Examined by:

(Sgd.)

JOEY I. DE LA CRUZ

(Sgd.)

ROLANDO E. AMOROSO

Fish Examiners
Joey de la Cruz affirmed the above findings in his testimony before the trial court. 12 Said testimony was
corroborated by Rolando Amoroso, a co-employee of De la Cruz in the Bureau of Fisheries. The latter
further stated that the fish were killed specifically by dynamite:

ATTY. LUMAWAG:

Q Can you identify whether it was through dynamite or any other means of explosive the fish was
caught?

A Yes, sir. Because you know when we saw, when we conducted the external manifestation of the fish,
not only blood oozing from the ears but also from the eyes that were protruding.

Q Is it not possible that it be caused also through fishing by means of electricity?

A No.

Q Other kinds of explosives?

A Yes, explosives.

Q For example, what other aside from dynamite?

A What explosives aside from dynamite, no other. 13

The trial court correctly gave credence to these testimonies, thus:

Above three (3) accused would like the Court to believe that the seven (7) pieces of fish samples taken
by the team of fishing law enforcers were the catch of their fish net they locally called [sic] "patuloy."

xxx xxx xxx

With the external and internal examination by Joey de la Cruz and Rolando Amoroso showing that these
fishes were caught with the use of explosive, bare denial of above three (3) accused that they caught
them by means of a fishing net they locally call "patoloy" is insufficient to disprove such finding. It is
simply a superiority of weight of object evidence over testimonies of the accused.

Joey de la Cruz is an agricultural technologist of their office and a graduate of Bachelor of Science in
Fishery. Joey de la Cruz and Rolando Amoroso had undergone training course in fishery laws and
implementing regulations as well as actual demonstrations in sea to practice what they had learned in
theory. [As] . . . technical personnel of the Bureau of Fishery and Aquatic Resources, their finding after
an internal and external examination of fish samples to prove they were caught with the use of
explosives should be presented to show that these prosecution witnesses fabricated their story. There is
no ulterior motive which implied them to testify as they did. Furthermore, no evidence was introduced
by the defense to impeach their credibility nor evidence to discredit their persons. Credibility of the
testimonies having remained unimpeached, it shall be given great weight in the determination of the
guilt of the accused. Besides, being public officers to enforce fishing laws, in the absence of ill-motive on
their part, to impute to the accused a serious offense of illegal fishing with the use of explosive, the
presumption is that there was regular performance of public duty on their part. 14

The presumption that the crime of illegal fishing was committed has, therefore, been clearly established.
Such presumption, however, is merely prima facie, and may be rebutted by the accused. 15

Petitioners attempt to overcome said presumption by disputing the findings of prosecution witnesses
Joey de la Cruz and Rolando Amoroso. They claim that since not all their catch were examined, there can
be no conclusive proof that the fish were killed with the use of explosives. 16

They also question the credibility of these witnesses, thus:

. . . . If it is true that prosecution witness Joey dela Cruz, allegedly a technical personnel [sic] of the
Bureau of Fisheries and competent to determine if a fish is killed by dynamite blast, found the 7 fishes to
have been killed by a dynamite blast, it was unnatural for the team not to arrest the petitioners on the
spot. . . . 17

Petitioners' arguments have no merit.

It is ridiculous to have expected that all the fish found in the accused's fishing boat would be subjected
to an examination. It is sufficient that, as in the case at bar, a random sample of the accused's catch was
examined and found to have been killed with the use of explosives. A patent impracticality would result
if the law required otherwise.

The fact that the patrol team did not immediately deliver the accused to the municipal jail does not
diminish the credibility of the above witnesses. Persinefles U. Oabe, the barangay captain of Basiao,
gave a plausible explanation for the accused's release:

A We released those six persons because if we bring them to the municipality of Ivisan we have no
available transportation because they were only riding in a single motor vehicle. 18

The want of available transportation is not surprising. The dearth in law enforcement facilities, especially
in the provinces, is not lost on this Court and is a matter of judicial notice.

In fine, we find no reason to disturb the assessment of the trial court regarding the credibility of
prosecution witnesses Joey de la Cruz and Rolando Amoroso. Its findings are accorded great respect by
appellate tribunals since trial courts have the advantage of examining the witnesses' testimonies and
observing their demeanor first hand. 19

Petitioners also argue that they could not have been caught fishing with the use of dynamite in shallow
waters because the fishes used as evidence were described by the prosecution witnesses as "deep sea
fishes." According to petitioners:

The seven (7) fishes that the prosecution used as evidence were described by prosecution witnesses as
"deep sea fishes". But it has been shown in the testimony of petitioner Santiago Argoncillo that he and
the other petitioners were fishing in shallow waters about 1 1/2 meters deep (TSN, March 13, 1991, p.
7) and using fishnet 200 armslength long and 1 meter wide (TSN, March 13, 1991, p. 4). This testimony
was not rebutted by the prosecution. In fact, the 3 accused who were acquitted by the trial court were
found by the prosecution witnesses standing on the seashore near where the petitioners were fishing
(TSN, January 23, 1991, pp. 5 to 6). That petitioners would engage in dynamite fishing in shallow waters
and near the seashore would be unnatural. The allegation that the petitioners were fishing with the use
of explosive is therefore not credible. 20

We are not persuaded.

The fishes caught by petitioners were not actually "deep sea fishes" in the sense that they came from
the deep portions of the sea as distinguished from shallow waters or waters near or along the shores.
The fishes caught were locally known as "vulgan," "bulawis," "pacol," and "bag-angan." They are
generally described as "isda sa bato" or "bottom feeders." The following excerpt from the testimony of
fish examiner Joey de la Cruz shows that the term "deep sea fishes" arose from the trial court's
erroneous translation of "isda sa bato" or "bottom feeders" which were the terms actually employed by
said witness to describe the subject fishes:

ATTY. LUMAWAG:

Q What were the species of the fishes that you recovered from that banca?

A Bottom feeders.

COURT:

"Isda sa bato," in English?

A Bottom feeders.

COURT:

Deep sea fishes. 21

Petitioners next contend that if it is true that they were engaged in illegal fishing, it would be
"unnatural" for them to use a boat which would make it difficult for them to escape from the law
enforcers riding motorized boats. 22

Petitioners' contention is too ludicrous to warrant serious consideration. The law punishing illegal fishing
does not require the use of motorized banca or boat for the crime to be committed. Concededly, a
motorized banca can better serve those engaged in illegal fishing for purposes of eluding law enforcers.
However, not everyone can financially afford to fit a motor in his banca. Indeed, petitioner Argoncillo
admitted that the banca that they were using was leased from a certain Dikoy Odrunia. 23
Petitioners likewise aver that they did not flee when the law enforcers arrived, and even voluntarily
reported to the Ivisan Police Station the following morning. They submit that their alleged non-flight
should strengthen their claim of innocence. 24

We disagree. There is no established doctrine to the effect that, in every instance, non-flight is an
indication of innocence. 25 Moreover, even if they wanted to, petitioners could not have possibly
eluded the law enforcers who were in two pump boats. Attempts to flee would also have been useless
since petitioners were already identified by the barrio captain.

Lastly, the fact that the accused were asked by the patrol team whether or not they heard an explosion
is not in any way reflective of petitioners' innocence. We deem such inquiry as nothing more than a part
of the investigative process. It is quite common, and in most cases, necessary, for law enforcers to ask
questions to help them ascertain whether or not there exists probable cause to arrest persons
suspected of committing a crime.

Having failed to discharge themselves of the burden of disproving that they have committed illegal
fishing, the Court is left with no alternative but to affirm petitioners' conviction.

The penalty imposed by law 26 for illegal fishing if explosive is actually used is imprisonment ranging
from twenty (20) years to life imprisonment. The Indeterminate Sentence Law provides that if, as in this
case, the offense is punished by a law other than the Revised Penal Code, the court shall sentence the
accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed
by said law and the minimum shall not be less than the minimum term prescribed by the same. 27 The
trial court therefore erred when it sentenced petitioners to "suffer a straight penalty of twenty (20)
years imprisonment." 28 In Spouses Jose and Trinidad Bacar vs. Judge Salvador P. de Guzman, Jr., 29 we
held that it was erroneous to impose a straight penalty of six (6) years imprisonment on the accused for
homicide. We explained:

. . . It is basic law that . . . the application of the Indeterminate Sentence Law is mandatory where
imprisonment exceeds one (1) year, except only in the following cases:

a. Offenses punished by death or life imprisonment.

b. Those convicted of treason (Art. 114), conspiracy or proposal to commit treason (Art. 115).
c. Those convicted of misprision of treason (Art. 116), rebellion (Art. 134), sedition (Art. 139, or
espionage (Art. 117).

d. Those convicted of piracy (Art. 122).

e. Habitual delinquents (Art. 62, par. 5).

Recidivists are entitled to an indeterminate sentence. (People v. Jaramilla, L-28547, Feb. 22, 1974).
Offender is not disqualified to avail of the benefits of the law even if the crime is committed while he is
on parole. (People v. Calreon, CA 78 O.G. 6701, Nov. 19, 1982).

f. Those who escaped from confinement or those who evaded sentence.

g. Those granted conditional pardon and who violated the terms of the same (Art. 159). (People v.
Corral, 74 Phil. 359).

h. Those whose maximum period of imprisonment does not exceed one year.

Where the penalty actually imposed does not exceed one year, the accused cannot avail himself of the
benefits of the law, the application of which is based upon the penalty actually imposed in accordance
with law and not upon that which may be imposed in the discretion of the Court. (People v. Hidalgo,
[CA] G.R. No. 00452-CR, Jan. 22, 1962).

i. Those who are already serving final judgment upon the approval of the Indeterminate Sentence Law.

The need for specifying the minimum and maximum periods of the indeterminate sentence is to prevent
the unnecessary and excessive deprivation of liberty and to enhance the economic usefulness of the
accused, since he may be exempted from serving the entire sentence, depending upon his behavior and
his physical, mental, and moral record. The requirement of imposing an indeterminate sentence in all
criminal offenses whether punishable by the or by special laws, with definite minimum and maximum
terms, as the Court deems proper within the legal range of the penalty specified by the law must,
therefore, be deemed mandatory. 30
Accordingly, the proper penalty to be imposed upon the accused should be an indeterminate penalty
which is hereby set at twenty (20) years as minimum to twenty-five (25) years as maximum.

WHEREFORE, the petition is hereby DISMISSED, and the decision of the Court of Appeals is AFFIRMED
with the modification that petitioners are hereby sentenced to suffer an indeterminate penalty of
imprisonment ranging from twenty (20) years as minimum to twenty-five (25) years as maximum.

SO ORDERED.

Narvasa, C.J., Romero and Purisima, J., concur.

SANTIAGO ARGONCILLO v. CA, GR No. 118806, 1998-07-10

Facts:

On August 1, 1990, an Information was filed by the Provincial Fiscal of Capiz charging Johnson Sucgang,
Policarpio Umiten, Elvis Villar, Santiago Argoncillo, Richardo Balbona and Efren Alvaro with illegal fishing
(with the use of dynamite), as follows:

That at or about 6:30 o'clock [sic] in the evening of May 7, 1990, in the sea water of Barangay Basiao,
Ivisan, Capiz, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and helping one another,... wilfully, unlawfully and feloniously catch, take,
gather and have in their possession and control different species of fish with the use of explosives.[4]

Upon arraignment on September 11, 1990, the accused, with the assistance of counsel, pleaded "not
guilty" to the offense charged.

On September 30, 1991, the trial court rendered its decision which, as stated at the beginning, was
affirmed by the Court of Appeals.

Issues:
Petitioners point out that the fact that neither explosives nor related paraphernalia were found in their
possession is an indication of their innocence.

Ruling:

Petitioners' arguments have no merit.

It is ridiculous to have expected that all the fish found in the accused's fishing boat would be subjected
to an examination. It is sufficient that, as in the case at bar, a random sample of the accused's catch was
examined and found to have been killed with the use of... explosives. A patent impracticality would
result if the law required otherwise.

Having failed to discharge themselves of the burden of disproving that they have committed illegal
fishing, the Court is left with no alternative but to affirm petitioners' conviction.

WHEREFORE, the petition is hereby DISMISSED, and the decision of the Court of Appeals is AFFIRMED

Principles:

Sec. 33. Illegal fishing; xxx -- It shall be unlawful for any person to catch, take or gather, or cause to be
caught, taken or gathered fish or fishery/aquatic products in Philippine waters with the use of
explosives, obnoxious or poisonous substance, or by the use... of electricity as defined in paragraphs (l),
[7] (m)[8] and (d),[9] respectively, of Sec. 3 hereof xxx.

G.R. No. L-14432 July 26, 1960

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.

LEONCIO LIM, defendant-appellant.

Adriano F. Besa for appellant.

Asst. Solicitor General F. Villamor and Solicitor H. C. Fule for appellee.

MONTEMAYOR, J.:

This is an appeal from the decision of the Court of First Instance of Samar in Criminal Case No. 4032, the
dispositive part of which reads as follows:

In view of the above findings, the Court declares the accused Leoncio Lim guilty beyond reasonable
doubt of the offense charged, and, considering his being a recidivist as an aggravating circumstance,
convicts him to an imprisonment of six (6) Months, pay a fine of Two Hundred Pesos, with subsidiary
imprisonment in case of insolvency, and the costs.

On March 13, 1954, the Secretary of Agriculture and Natural Resources, under authority granted him by
Sections 3 and 4 of Act No. 4003 (Fisheries Act), issued Fishery Administrative Order (FAO) No. 37,
Section 2 of which reads:

SEC. 2. Prohibition. — It shall be unlawful for all kinds of trawl to operate in Maqueda and Carigara Bays,
including Zumarraga Channel, from December 1st to May 31st, inclusive of each year, except as
provided for in Section 3 of this Administrative Order.

On June 7, 1954, the same Secretary promulgated FAO 37-1, amending Section 2 of FAO No. 37
abovequoted, so as to read as follows:

SEC. 2. Prohibition. — It shall be unlawful for all kinds of trawl to operate in Maqueda, Villareal and
Carigara Bays, including Zumarraga Channel except as provided for in Section three of this Fisheries
Administrative Order.

On November 19, 1955, between five and six o'clock in the morning, Chief of Police Pamfilo Hilvano of
Sumarraga, Samar, and two of his policemen named Agustin Albesa and Apolinario Nacional, were on
board a motor boat, engaged on sea patrol in Maqueda Bay, between Basiao and Puro Islands, for the
purpose of enforcing the provisions of FAO No. 37-1, regarding trawl fishing. While cruising over said
area, they observed two fishing boats about 300 meters away, moving "to and fro ... dragging their fish
nets", obviously engaged in trawl fishing. After observing the two boats for some time and convinced
that they were engaged in trawl fishing, the three policemen immediately gave chase to apprehend
them. After going half the distance that separated them from the two boats, the three police officers
found that said boats were the Helen (Ellen) II and the Florantor; and that Helen II was lifting its nets.
The policemen continued in pursuit and when only about 20 meters from Helen II, they saw its nets
already up. On board there was fish. Lim, owner of that boat, immediately hurried from the astern or
rear of the vessel toward the bow where the steering wheel was located and gave the signal for full
speed ahead. Because Helen II could out run the boat of the peace officers, the latter could not catch up
with it and they gave up the chase. However, they returned to the other boat, Florantor, and
apprehended it.

On November 22, 1955, the Chief of Police of Zumarraga, Samar, filed with the Justice of the Peace
Court of said town a criminal complaint against appellant for violation of Section 2, FAO No. 37-1. At the
hearing, Lim presented no evidence. On April 16, 1956, the Justice of the Peace Court rendered
judgment finding appellant guilty as charged and sentenced him. On appeal to the Court of First Instance
of Samar, appellant was again found guilty and sentenced as aforementioned. The trial court also
recommended the confiscation of the fishing license issued to him by the Bureau of Fisheries.

Appellant contends that Section 2 of FAO No. 37-1 is void because it is not inconsistent with but is
contrary to the provisions and spirit of Act No. 4003 as amended, because whereas the prohibition
prescribed in said Fisheries Act was for any single period of time not exceeding five years duration, FAO
No. 37-1 fixed no period, that is to say, it establishes an absolute ban for all time. This discrepancy
between Act No. 4003 and FAO No. 37-1 was probably due to an oversight on the part of the Secretary
of Agriculture and Natural Resources. Of course, in case of discrepancy, the basic Act prevails, for the
reason that the regulation or rule issued to implement a law cannot go beyond the terms and provisions
of the latter. It is possible that the Secretary contemplated the ban for the same period prescribed in Act
No. 4003, but failed to state it in Section 2 of FAO No. 37-1. But should he have intended to make the
ban for all time, then said FAO No. 37-1 would be inoperative in so far as it exceeds the period of five
years for any single period of time; but it does not necessarily render void FAO No. 37-1. In this
connection, the attention of the technical men in the offices of Department Heads who draft rules and
regulations, is called to the importance and necessity of closely following the terms and provisions of the
law which they intended to implement, this to avoid any possible misunderstanding or confusion as in
the present case.

Appellant also claims that FAO No. 37-1 is discriminatory in that the prohibition is made applicable only
to trawl fishermen and not to other persons engaged in fishing. This contention is untenable. The
prohibition is not against a class of fishermen, but only against a method of fishing, such as trawl fishing.
And it is only as regards certain areas. The reason behind the prohibition of this kind of fishing is well
explained by the trial court in its decision, the pertinent portion of which we reproduce below with
favor:

Fisheries Administrative Order No. 37 is an implementation of Act No. 4003 for the preservation of our
aquatic wealth. Considering the ways and means for catching fish by trawling — the net being dragged
in the bottom of the sea for hours — it is a fact that it is more destructive than fishing with dynamite.
For while the latter destroys the aquatic animals within a certain area where the impact of the explosion
is felt, the former destroys not only the fish but also its breeding places, its shelter and its food because
the trawl plows and harrows the bottom of the sea where the net is dragged; and the area so harrowed
is far more extensive because the dragging is for hours and even for days. And considering the size of
the areas mentioned in the Fisheries Administrative Order No. 37-1 and the number of fishing boats
trawling therein, the total destruction of their beds is but a question of months.

As to the guilt of appellant, we entertain no doubt. The evidence fully establishes the same. We can do
no better than reproduce the pertinent portion of the appealed decision of trial Judge Fidel Fernandez
who saw the witnesses testify and was in a position to gauge their credibility.

The Court finds no cause for Chief of Police Pamfilo D. Hilvano to lie; no reason not to believe him. "Ellen
2" was found inside the restricted area; and Leoncio Lim, the owner was on board. That she was not
then fishing but only effecting the delivery of some net to "Florantor 1", as claimed by Leoncio Lim, is
indeed a clear fabricated excuse for his illegal fishing; the only one he thought more acceptable,
considering the following facts which he court not deny:(1) that "Ellen 2" was in the restricted area, (2)
that she was moving slowly while her net was down, (3) that she was lifting her net from the sea when
the motorboat where the policemen were boarded was speeding towards her, (4) that she had fish on
board, and (5) that she made haste in pulling up her net and speeded away from the fast approaching
raiders.

Leoncio Lim resides in Mualbual. If it were true that "Ellen 2" had to deliver some net to "Florantor 1",
there was no reason for her to proceed to Mahacob (Tarañgan) before delivering the said net to the
"Florantor 1" which was in the waters about Basiao Island; for these waters is on the way from Mualbual
to Mahacob, and is nearer to the former. That he (Leoncio Lim) did not know where the "Florantor 1"
was at the time left Mualbual, would not appear to be an acceptable excuse. From Mahacob he
proceeded directly to the waters between Puro and Basiao where he found the "Florantor 1" without
being informed of the said place while he was in Mahacob. Leoncio Lim could not argue either that there
was no hurry in the delivery of the net, hence his going fishing first in Mahacob, because she went
directly to the "Florantor 1" for the alleged delivery without first dropping at Catbalogan for the disposal
of the fish he alleged he caught in the waters of Mahacob. Catbalogan is on the way from Mahacob to
about the waters between Puro and Basiao. Not to dispose of his catch (fish) as early as conveniently
possible, is not the ordinary conduct of fishermen. In this case we have no explanation for such an
extraordinary behavior.

This evidence is conclusive that the accused Leoncio Lim was, in the early hours of November 19, 1955,
on board his fishing boat "Ellen 2" which was then fishing with trawl in the jurisdictional waters of
Zumarraga, Samar, between the islands of Puro and Basiao, inside the Maqueda Bay where it is unlawful
for all kinds of trawl to operate in violation of and as penalized by Fisheries Administrative Order No. 37-
1 in connection with Fisheries Administrative Order No. 37.

Appellant was caught red-handed by peace officers detailed to enforce the provisions of FAO No. 37-1;
and this is not the first time that he was caught trawl fishing within the prohibited area. He was
previously charged with and convicted of trawl fishing in the Justice of the Peace Court and was fined
P50.00, plus costs. On two other occasions, his fishing boat was caught engaged in trawl fishing and he
could and should have been charged with the offense, but it would appear that because of his pleas with
the authorities that he be not included in the complaint, the men employed by him were instead
charged, found guilty, and convicted.

Finally appellant contends that FAO No. 37-1 is invalid for the reason that FAO No. 37 which amended
was not shown to have been approved buy the President; at least it does not bear and state the date
said approval. Under the rule of official duty has been regularly performed, we may well presume that
said FAO No. 37, was duly approved by the President as required. FAO No. 37-1 amending it is admitted
by the appellant to have been duly approved by the President, and it also is to be presumed that the
order, FAO-37, that is amended had been duly approved because it is not to be assumed that an order
which an invalid because of lack of approval could or should be amended. If an order or law sought to be
amended is invalid, then it does not legally exist. There would be no occasion or need to amend it; and
FAO -37-1 which was intended to effect the change or amendment should have been promulgated as an
original or independent order. But it was not so. The inference is that FAO-37 was valid, and so it was
necessary to amend it as was done.

We deem it unnecessary to discuss the other points raised in the appeal.

In view of the foregoing, and finding no error in the appealed decision, the same is hereby affirmed with
costs.

Paras, C.J., Padilla, Bautista Angelo, Labrador Concepcion, Reyes, J.B.L., Endencia, Barrera, and Gutierrez
David, JJ., concur.

108 Phil. 1091

MONTEMAYOR, J.:

This is an appeal from the decision of the Court of First Instance of Samar in Criminal Case No. 4032, the
dispositive part of which reads as follows:
"In view of the above findings, the Court declares the accused Leoncio Lim guilty beyond reasonable
doubt of the offense charged, and, considering his being a recidivist as an aggravating circumstance,
convicts him to an imprisonment of six (6) Months, pay a fine of Two Hundred Pesos, with subsidiary
imprisonment in case of insolvency, and the costs."

On March 13, 1954, the Secretary of Agriculture and Natural Resources, under authority granted him by
Sections 3 and 4 of Act No. 4003 (Fisheries Act), issued Fishery Administrative Order (FAO) No. 37,
Section 2 of which reads:

"Sec. 2. Prohibition. It shall be unlawful for all kinds of trawl to operate in Maqueda and Carigara Bays,
including Zumarraga Channel, from December 1st to May 31st, inclusive of each year, except as
provided for in Section 3 of this Administrative Order."

On June 7, 1954, the same Secretary promulgated FAO 37-1, amending Section 2 of FAO No. 37 above
quoted, so as to read as follows:

"Sec. 2. Prohibition. It shall be unlawful for all kinds of trawl to operate in Maqueda, Villareal and
Carigara Bays, including Zumarraga Channel except as provided for in Section three of this Fisheries
Administrative Order."

On November 19, 1955, between five and six o'clock in the morning, Chief of Police Pamfilo Hilvano of
Sumarraga, Samar, and two of his policemen named Agustin Albesa and Apolinario Nacional, were on
board a motor boat, engaged on sea patrol in Maqueda Bay, between Basiao and Puro Islands, for the
purpose of enforcing the provisions of FAO No. 37-1, regarding trawl fishing. While cruising over said
area, they observed two fishing boats about 300 meters away, moving "to and fro * * * dragging their
fish nets", obviously engaged in trawl fishing. After observing the two boats for some time and
convinced that they were engaged in trawl fishing, the three policemen immediately gave chase to
apprehend them. After going half the distance that separated them from the two boats, the three police
officers found that said boats were the Helen (Ellen) II and the Florantor; and that Helen II was lifting its
nets. The policemen continued in pursuit and when only about 20 meters from Helen II, they saw its
nets already up. On board there was fish. Lim, owner of the boat, immediately hurried from the astern
or rear of the vessel toward the bow where the steering wheel was located and gave the signal for full
speed ahead. Because Helen II could outrun the boat of the peace officers, the latter could not catch up
with it and they gave up the chase. However, they returned to the other boat, Florantor, and
apprehended it.

On November 22, 1955, the Chief of Police of Zumarraga, Samar, filed with the Justice of the Peace
Court of said town a criminal complaint against appellant for violation of Section 2, FAO No. 37-1. At the
hearing, Lim presented no evidence. On April 16, 1956, the Justice of the Peace Court rendered
judgment finding appellant guilty as charged and sentenced him. On appeal to the Court of First Instance
of Samar, appellant was again found guilty and sentenced as aforementioned. The trial court also
recommended the confiscation of the fishing license issued to him by the Bureau of Fisheries.

Appellant contends that Section 2 of FAO No. 37-1 is void because it is not only inconsistent with but is
contrary to the provisions and spirit of Act No. 4003 as amended, because whereas the prohibition
prescribed in said Fisheries Act was for any single period of time not exceeding five years duration, FAO
No. 37-1 fixed no period, that is to say, it establishes an absolute ban for all time. This discrepancy
between Act No. 4003 and FAO No. 37-1 was probably due to an oversight on the part of the Secretary
of Agriculture and Natural Resources. Of course, in case of discrepancy, the basic Act prevails, for the
reason that the regulation or rule issued to implement a law cannot go beyond the terms and provisions
of the latter. It is possible that the Secretary contemplated the ban for the same period prescribed in Act
No. 4003, but failed to state it in Section 2 of FAO No. 37-1. But should he have intended to make the
ban for all time, then said FAO No. 37-1 would be inoperative in so far as it exceeds the period of five
years for any single period of time; but it does not necessarily render void FAO No. 37-1. In this
connection, the attention of the technical men in the offices of Department Heads who draft rules and
regulations, is called to the importance and necessity of closely following the terms and provisions of the
law which they intended to implement, this to avoid any possible misunderstanding or confusion as in
the present case.

Appellant also claims that FAO No. 37-1 is discriminatory in that the prohibition is made applicable only
to trawl fishermen and not to other persons engaged in fishing. This contention is untenable. The
prohibition is not against a class of fishermen, but only against a method of fishing, such as trawl fishing.
And it is only as regards certain areas. The reason behind the prohibition of this kind of fishing is well
explained by the trial court in its decision, the pertinent portion of which we reproduce below with
favor:

"Fisheries Administrative Order No. 37 is an implementation of Act No. 4003 for the preservation of our
aquatic wealth. Considering the ways and means for catching: fish by trawling the net being dragged in
the bottom of the sea for hours it is a fact that it is more destructive than fishing with dynamite. For
while the latter destroys the aquatic animals within a certain area where the impact of the explosion is
felt, the former destroys not only the fish but also its breeding places, its shelter and its food because
the trawl plows and harrows the bottom of the sea where the net is dragged; and the area so harrowed
is far more extensive because the dragging is for hours and even for days. And considering the size of
the areas mentioned in the Fisheries Administrative "Order No. 37-1 and the number of fishing boats
trawling therein, the total destruction of their beds is but a question of months."
As to the guilt of appellant, we entertain no doubt. The evidence fully establishes the same. We can do
no better than reproduce the pertinent portion of the appealed decision of trial Judge Fidel Fernandez
who saw the witnesses testify and was in a position to gauge their credibility.

"The Court finds no cause for Chief of Police Pamfilo D. Hilvano to lie; no reason not to believe him.
'Ellen 2' was found inside the restricted area; and Leoncio Lim, the owner was on board. That she was
not then fishing but only effecting the delivery of some net to 'Florantor 1', as claimed by Leoncio Lim, is
indeed a clear fabricated excuse for his illegal fishing; the only one he thought more acceptable,
considering the following facts which he could not deny: (1) that 'Ellen 2' was in the restricted area, (2)
that she was moving slowly while her net was down, (3) that she was lifting her net from the sea when
the motorboat where the policemen were boarded was speeding towards her, (4) that she had fish on
board, and (5) that she made haste in pulling up her net and speeded away from the fast approaching
raiders.

"Leoncio Lim resides in Mualbual. If it were true that 'Ellen 2' had to deliver some net to 'Florantor 1',
there was no reason for her to proceed to Mahacob (Tarañgan) before delivering the said net to the
'Florantor 1' which was in the waters about Basiao Island; for these waters is on the way from Mualbual
to Mahacob, and is nearer to the former. That he (Leoncio Lim) did not know where the 'Florantor 1'
was at the time he left Mualbual, would not appear to be an acceptable excuse. From Mahacob he
proceeded directly to the waters between Puro and Basiao where he found the 'Florantor V without
being informed of the said place while he was in Mahacob. Leoncio Lim could not argue either that there
was no hurry in the delivery of the net, hence his going fishing first in Mahacob, because she went
directly to the 'Florantor 1' for the alleged delivery without first dropping at Catbalogan for the disposal
of the fish he alleged he caught in the waters of Mahacob. Catbalogan is on the way from Mahacob to
about the waters between Puro and Basiao. Not to dispose of his catch (fish) as early as conveniently
possible, is not the ordinary conduct of fishermen. In this case we have no explanation for such an
extraordinary behaviour.

"The evidence is conclusive that the accused Leoncio Lim was, in the early hours of November 19, 1955,
on board his fishing boat 'Ellen 2' which was then fishing with trawl in the jurisdictional waters of
Zumarraga, Samar, between the islands of Puro and Basiao, inside the Maqueda Bay where it is unlawful
for all kinds of trawl to operate in violation of and as penalized by Fisheries Administrative Order No. 37-
1 in connection with Fisheries Administrative Order No. 37."

Appellant was caught red-handed by peace officers detailed to enforce the provisions of FAO No. 37-1;
and this is not the first time that he was caught trawl fishing within the prohibited area. He was
previously charged with and convicted of trawl fishing in the Justice of the Peace Court and was fined
P50.00, plus costs. On two other occasions, his fishing boat was caught engaged in trawl fishing and he
could and should have been charged with the offense, but it would appear that because of his pleas with
the authorities that he be not included in the complaint, the men employed by him were instead
charged, found guilty, and convicted.

Finally appellant contends that FAO No. 37-1 is invalid for the reason that FAO No. 37 which it amended
was not shown to have been approved by the President; at least it does not bear and state the date of
said approval. Under the rule that official duty has been regularly performed, we may well presume that
said FAO No. 37 was duly approved by the President as required. FAO No. 37-1 amending it is admitted
by the appellant to have been duly approved by the President, and it also is to be presumed that the
order, FAO-37, that it amended had been duly approved because it is not to be assumed that an order
which is invalid because of lack of approval could or should be amended. If an order or law sought to be
amended is invalid, then it does not legally exist. There would be no occasion or need to amend it; and
FAO-37-1 which was intended to effect the change or amendment should have been promulgated as an
original or independent order. But it was not so. The inference is that FAO-37 was valid, and so it was
necessary to amend it as was done.

We deem it unnecessary to discuss the other points raised in the appeal.

In view of the foregoing, and finding no error in the appealed decision, the same is hereby affirmed with
costs.

Paras, C. J., Padilla, Bautista Angelo, Labrador Concepcion, Reyes, J. B. L., Endencia, Barrera, and
Gutierrez David, JJ., concur.