1
G.R. No. 211977, October 12, 2016
MARIANO LIM, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.
The Case
This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking
the reversal of the Decision1 dated July 30, 2013 and Resolution2 dated February 28,
2014 of the Court of Appeals (CA), which affirmed the Decision 3 dated February 17,
2009 of the Regional Trial Court (RTC), Branch 8 in Davao City, convicting petitioner
Mariano Lim (Lim) for violating Presidential Decree No. 1612 (PD 1612), otherwise
known as the Anti-Fencing Law of 1979.
The Facts
An Information dated June 27, 1997 charged Lim with the following:
That on or about January 16, 1997, in the City of Davao, Philippines, and within the
jurisdiction of this Honorable Court, the above-mentioned accused, being then the
proprietor of Basco Metal Supply located at Matina, Davao City, with intent to gain for
himself, wilfully (sic), unlawfully and feloniously purchased and received for
P400,000.00 one (1); unit komatsu Road Grader with Chassis Model and Serial No.
GD-51R-100049 and bearing an (sic) Engine Serial Number 6D951-55845 owned by
Second Rural Road Improvement Project (SRRIP) PMO-DPWH of Isulan, Sultan
Kudarat, being lodged for repair at the Facoma Compound of Poblacion Norala, South
Cotabato, and possessed the same, knowing that said Komatsu Road Grader was
stolen, thereby committing an act of fencing in violation of the Anti-Fencing Law of 1979,
to the damage and prejudice of the aforesaid complainant in its true value of
P2,000[,]000.00.
CONTRARY TO LAW.4
Upon arraignment, petitioner pleaded not guilty. Thereafter, trial on the merits
ensued.5chanrobleslaw
Version of the Prosecution
The prosecution presented two witnesses: (1) Engr. Herminio Gulmatico, the project
engineer of the Second Rural Road Improvement Project (SRRIP) PMO-DPWH of
Isulan, Sultan Kudarat; and (2) SPO4 Alfredo T. Santillana. The testimonies of the
prosecution witnesses were summarized by the trial court, as follows:
SPO4; Santillana testified that i. [S]ometime in January 1997, he was an investigator of
the theft and robbery section of Police Precinct No. 3, Talomo, Davao City; ii. [I]n the
afternoon of January 31, 1997, Engr. Herminio Gulmatico went to his office to seek
assistance in the recovery of a Komatsu Road Grader bearing Engine Serial Number
6D951-55 845 and Chassis No. GD-51R-100[0]49; iii. [H]e was informed by Gulmatico
that said heavy equipment could be found at Basco Metal Metal (sic) Supply along Me
Arthur Highway, Davao City; iv. [T]his information was caused to be verified by the
station commander of said Police Precinct and after finding out that it was accurate, a
search warrant was applied for; and v. [T]he search warrant was served on Basco Metal
Supply where the aforedescribed heavy equipment was found.
Engr. Gulmatico for his part testified that: i. [H]e is the project engineer of the [SRRIP]
PMO-DPWH of Isulan, Sultan Kudarat; ii. [O]n July 1, 1996, he received from Engineer
Ireneo Veracion, the former project engineer, the aforesaid heavy equipment; iii.
[S]ometime in June of 1997 the heavy equipment was in the Facoma Compound in
Norala, South Cotabato undergoing repairs; iv. [Ajround the third week of January, ;
1997, he was. informed that the heavy equipment was removed from that n compound
by-Petronilo Banosing; v. [H]e was also told that the heavy equipment was loaded on
a ten wheeler truck and brought to DaVao City particularly at Km. 3 Me Arthur Highway;
vi. [A]rmed with this information tie proceeded to Davao City and sought the assistance
of Talomo Police Precinct; vii. [T]he consequent search warrant applied for by the police
officers of that precinct was served on Basco Metal Supply where the heavy equipment
was found.6
Version of the Defense
On the other hand, petitioner was presented as the sole witness for the defense. The
trial court summarized petitioner's testimony, to wit:
Accused Mariano Lim did not present testimonial evidence other than his and testified,
thus: i. [H]e bought the heavy equipment from Petronilo Banosing for Four Hundred
Thousand (P400,000.00) Pesos; ii. Banosingsshowed him a Certificate of Ownership
that stated that the heavy equipment is his; and, iii. [H]e checked with the DPWH in
Manila and found out that the subject heavy equipment is not included in the inventory
ofequipmentoftheDPWH.7chanroblesvirtuallawlibrary
Ruling of the RTC
The RTC found Lim guilty beyond reasonable doubt of the crime of fencing under PD
1612, to wit:
FOR THE FOREGOING[,] this Court finds accused[,] MARIANO LIM[,] GUILTY beyond
reasonable doubt for violation of Presidential Decree No. 1612 otherwise known as the
Anti-Fencing Law of 1979 and applying the Indeterminate Sentence Law, he is hereby
sentenced to suffer the indeterminate penalty of imprisonment of from TWELVE (12)
YEARS of PRISION MAYOR as Minimum to EIGHTEEN (18) YEARS of
RECLUSION TEMPORAL as Maximum. Accused is also directed to indemnify the
 2

DPWH the amount of One Hundred Thousand (P100,000.00) Pesos. I. ALL THE ELEMENTS FOR THE OFFENSE OF VIOLATION OF THE ANTI-FENCING LAW AND THE GUILT
OF PETITIONER WERE ESTABLISHED AND PROVED BY THE PROSECUTION BEYOND REASONABLE
DOUBT.
SO ORDERED.8 II. THE FACTUAL ISSUES RAISED BY PETITIONER DO NOT FALL UNDER THE RECOGNIZED
EXCEPTIONS TO THE RULE THAT ONLY QUESTIONS OF LAW MAY BE ENTERTAINED IN A PETITION
FOR REVIEW ON CERTIORARI UNDER RULE 45 OF THE RULES OF COURT.

In imposing the penalty, the trial court applied the Indeterminate Sentence Law in
relation to Section 3(a) of PD 1612, based on its own valuation of the heavy equipment
considering that the prosecution did not present any evidence on this matter. The trial
court set the value of the heavy equipment at one hundred thousand pesos (P100,000)
after finding that essential parts of the engine were already removed at the time of its
discovery.
The basic issue in the instant case is whether or not the CA erred in sustaining the
petitioner's conviction. Central to resolving this issue is determining whether or not the
elements of the crime of fencing were established by the prosecution.
The Court's Ruling

Aggrieved, petitioner appealed the case to the CA.

Ruling of the CA The petition is impressed with merit.

The following are the essential elements of the crime of fencing:

On July 30, 2013, the appellate court rendered the assailed Decision upholding me
filings of the trial court, the dispositive portion of which reads:
1. A crime of robbery or theft has been committed;
chanRoblesvirtualLawlibrary
2. The accused, who is not a principal or accomplice in the commission of the crime of
WHEREFORE, premises considered, the decision appealed from is
robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or
hereby AFFIRMED in toto.
disposes, or buys and sells, or in any manner deals in any article, item, object or
anything of value, which has been derived from the proceeds of the said crime;
SO ORDERED.9chanroblesvirtuallawlibrary
3. The accused knows or should have known that the said article, item, object or
Petitioner filed a Motion for Reconsideration but the CA denied the same in the assailed anything of value has been derived from the proceeds of the crime of robbery or theft;
Resolution, ruling that the arguments raised had already been considered and and:
thoroughly discussed in the assailed Decision.
4. There is on the part of the accused, intent to gain for himself or for another. 12
Hence, the present petition.

The Issues In the present case, the trial court relied heavily on the testimony of Engr. Gulmatico in
finding that all elements of fencing exist. The trial court said:

Petitioner raised the following assignment of errors:

I. WITH DUE RESPECT, THE HONORABLE COURT OF APPEALS ERRED IN CONVICTING THE
PETITIONER FOR VIOLATION OF PRESIDENTIAL DECREE NO. 1612, OTHERWISE KNOWN AS THE
ANTI-FENCING LAW OF 1979 BECAUSE THE CRIME OF THEFT HAS NOT BEEN PROVEN IN COURT
AND THE PERSON ACCUSED OF THEFT IS AT-LARGE OR A FUGITIVE FROM JUSTICE.
II. WITH DUE RESPECT, THE HONORABLE COURT OF APPEALS ERRED IN CONVICTING THE
PETITIONER NOTWITHSTANDING THE FACT THAT HE IS A PURCHASER FOR VALUE AND IN GOOD
FAITH, WITHOUT INTENT TO GAIN.
III. WITH DUE RESPECT, THE HONORABLE COURT OF APPEALS ERRED WHEN IT CONSIDERED THE
MEMORANDUM RECEIPT OF THE DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS AS EVIDENCE
OF OWNERSHIP OF THE KOMATSU ROAD GRADER.
IV. WITH DUE RESPECT, THE HONORABLE COURT OF APPEALS ERRED IN CONVICTING THE
PETITIONER EVEN IF HIS GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT. 10
In the instant case the Court finds that the prosecution has established the existence
of the first, second, third and fourth elements. A theft was committed when Petronilo
Banosing took subject (sic) heavy equipment from Facoma Compound in Norala, South
Cotabato on January 16, 1997 and a Case for Theft or Criminal Case No. 275 was filed.
The stolen heavy Equipment, after a search warrant was issued, was found in the
premises of Basco Metal Supply owned by the accused, Mariano Lim, located at Km 3,
Matina, Davao City. Basco Metal Supply is in the business of buying used
equipment.13chanroblesvirtuallawlibrary

In its Comment,11 public respondent raised the following issues:

This Court has honored the principle that an appeal in a criminal case opens the whole
 3

action for review on any question including those not raised by the parties. The reason Q I am showing to you a document already marked as Exhibit "A" for the prosecution, tell us if this is the document,
for this rule is that every circumstance in favor of the accused should be [M]emorandum Receipt you are referring to?

considered.14chanrobleslaw
A Yes, sir.

After a careful and thorough review of the records, we are convinced that the trial court
erred in convicting herein petitioner. Q May we pray, Your Honor, that the item indicated/described in this Memorandum Receipt be ordered marked as Exhibit
"A-1". (So marked)

On the first element, we find that the prosecution failed to establish that theft had been
committed. Q From whom did you receive this unit of which a Memorandum Receipt was issued to you?

Theft tinder Article 308 of the Revised Penal Code has been defined as the taking of A From the previous project engineer, sir.

someone's property without the owner's consent, for his personal gain, and Without
committing any violence against or intimidation of persons or force, upon things. The Q There is a signature appearing over the name GERMENIO GULMATICO, tell us whose signature that, is that your
signature?
elements of theft are: (1) that there be taking of personal property; (2) that said property
belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be
A Yes, sir, that is my signature.
done without the consent of the owner; and (5) that the taking be accomplished without
the Use of violence against or intimidation of persons or force upon
things.15chanrobleslaw Q This signature indicates that you received the item under your accountability?

While the CA correctly ruled that conviction of the principal in the crime of theft is not A Yes, sir.16

necessary for an accused to be found guilty of the crime of fencing, we disagree with
its ruling that the prosecution sufficiently proved the DPWH's ownership of the Komatsu
Grader. On cross-examination, Engr. Gulmatico admitted that he received no confirmation from
the DPWH Manila office as to who purchased the subject grader:
During trial, the prosecution presented the testimony of Engr. Gulmatico, the project
engineer for the SRRIP of the DPWH. Engr. Gulmatico testified on his discovery of the
theft of one unit lyomatsu Road Grader with engine number GD95L-558I45 allegedly ATTY. CHUA
owned by the DPWH. However, except for his statement that the subject' grader was
procured by his office, Engr. Gulmatico failed to establish his or his office's ownership Q You [are] also aware Mr. Witness that there are no markings because the unit was originally purchased by the World
over the subject grader. Thus: Bank?

A Actually, sir, there are markings we have engraved before but because the equipment was continuously used, it got erased,
PROS. BELO sir, we have three dump trucks, we have many equipments and we have marked it DPWH but because of the time that
had past it got erased and considering the manner and the job that we are using it. Actuary, the front of the grader [is]
marked SRRIP, during that time but at that time that it was lost, it was erased when it was turned over to us.
Q The subject of this case for violation of Anti Fencing law against the person of Mr. Mariano Lim is a one unit Komatsu
Road Grader with engine number GD95L-55845, can you tell us if you are familiar with this particular unit?
Q But [can you] reiterate the fact that when it was MR to you there was no identification marks?
A Actually, this grader was assigned to us sometime [in] 1989 it [was] lost 10 years after.
A Yes.
Q Tell us who was the accountable officer of this particular unit when it was lost?
Q And of course you are not the person who erased those marks?
A It was already M.R. to me during that time.
A Yes.
Q Do you have any evidence that the same unit (sic) or there was a Memorandum Receipt already issued to you?
Q And you also admit going back to my earlier question that this unit was purchased by the World Bank?
A Yes, sir.
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A I don't know, sir what was the condition with our Office at Manila but as far as I know that our project was funded by the A Yes, Venecio Calderon.
World Bank and I mink the procurement was done in Manila, so it might be the World Bank or at the request of our office
as funded by the World Bank.
xxxx

Q But you will admit that this particular SRRIP project was funded by the World Bank?
Q After you were informed of the fact that the item subject of this case was stolen, what action if any, did you take?

A Yes, sir.
A During, the filing of the case, we [waited] for almost two days and during that time, Mr. Basilio Elaga, owner of the
Pakoma Compound informed me that a Ten Wheeler Truck coming from Isulan was the transportation used in taking
Q Did you try to check with your DEPO in Cotabato City or in your Port Area Office in Manila whether this particular unit was that grader, so after two days of filing, we contacted all operators in Isulan and we found out a ten wheeler truck with plate
one of those listed in the inventory of the DPWH, did you check? no. MB8116 driven by Mr. Ricardo Mamon and being assisted by Mr. Digdigan as the grader was being transported to
[an] unknown place.

A Actually, sir, I have some request in Manila that they will furnish u^ the original acquisition cost but the people in Manila
do hot give us time to that thing (sic), perhaps this might be the third time that I will have to request so that our Office can Q Were you able to determine thereafter as to where the item was brought?
avail of those things and we can say further about it, sir.

A When I conducted a thorough investigation and inquiries to the truck helper, he informed me that said grader was
Q Did you not try to write or inquire from the Project Director Paliamen Mamaente of the Project Management Office of your transported to Davao City, particularly it was dropped down at Km. 3, Mac Arthur Highway, Matina, Davao City. 18x x x
department in port area whether this unit w,as actually purchased by the World Bank? (Emphasis supplied)

A Yes, I have, sir.

Even upon clarificatory questioning by the trial court judge, Engr. Gulmatico's answers were still based on information provided to
him by third persons, as follows:
Q What was the reply of project Director Mamaente, if any?
chanRoblesvirtualLawlibrary

A I did not receive any [reply], sir.17 x x x COURT

Q You said that you first learned of the fact of its having been stolen when your driver informed you that it
Even the Memorandum Receipt submitted by the prosecution and relied upon by the trial court is wanting. Nowhere in the
was so stolen?
Memorandum Receipt does it state that the subject grader is owned by the DPWH. The portions which should show the date
acquired, property number, classification number, and unit value for the grader, were left blank. At best, the Memorandum Receipt
is a mere indicator that the subject grader was received by Engr. Gulmatico for his safekeeping arid responsibility.
A Yes.
Being the government agency in charge of construction projects, the DPWH is expected to have a database of all equipment and
materials it uses for easy reference of its employees. The prosecution's failure to present a sufficient proof of ownership of the
grader despite the many opportunities it had to do so places doubt on the DPWH's claim of ownership. Thus, it cannot be said Q After you received this information from your driver, ybu made inquiries as regards how it was stolen from the
that the first element of fencing had been established. Pacoma Compound?

In fact, the prosecution even failed to conclusively establish that the grader had been stolen. Engr. Gulmatico's testimony on the
alleged act of theft should not be given any weight considering that he had no personal knowledge of the actual theft. Most, if not A Yes.
his entire testimony, consisted of hearsay evidence as he relied mostly on the information given to him by various persons, to wit:

chanRoblesvirtualLawlibrary Q And the results of your inquiries showed that it was taken by a [ten] wheeler driven by Ricardo Mamon who [was]
accompanied by Ronnie Digdigan?

PROS. BELO
Q After receiving this information, you were able to talk to this people?

Q While under your accountability, can you recall if anything happened [with] this particular unit?
A No, it was only Ronnie Digdigan, the helper.

A On January 26, 1997, I was informed by my driver that this said grader was previously lodged for repair in the compound
of Petronilo Banosing in the evening of January 26, 1997. Q This Digdigan informed you that the grader was transported to Davao City?

Q Can you still recall who informed you of the taking of this unit by one Petronilo Banosing? A Yes.

A Yes, sir, it was my driver because I [told] him to visit once in a while our area in Nohralla. Q He specified to whom it was delivered?

Q Can you tell us what is the name of the driver? A Yes, he told us that he dropped it at the compound near Robin Marketing at Km. 3, Matina, Davao City.

Q Did you ask from Digdigan who hired them to transport this grader?
A Yes.
Q What did Digdigan tell you?
19
A He told me that it was Nilo Banosing who, hired them to get it from Pacoma.
Sec. 36, Rule 130 of the Rules of Court provides that witnesses can testify only with
regard to facts of which they have personal knowledge; otherwise, their testimonies
would be inadmissible for being hearsay.20 Evidence is hearsay when its probative
force depends on the competency and credibility of some persons other than the
witness by whom it is sought to be produced. The exclusion of hearsay evidence is
anchored on three reasons: (1) absence of cross-examination; (2) absence of
demeanor evidence; and (3) absence of oath.21
Consequently, hearsay evidence, whether objected to or not, has no probative value
unless it is shown that the evidence falls within any of the exceptions to the hearsay
rule as provided in the Rules of Court.22 However, none of the exceptions applies to the
present case.
A cursory reading of Engr. Gulmatico's testimony shows that his statements pertaining
to the alleged theft are all based on information which he claims to have received from
third persons, all of whom were never presented to testify under oath in court. Thus, it
was erroneous for the trial court to give probative value on Engr. Gulmatico's testimony
considering that the truth and credibility of such statements cannot be ascertained for
being mere hearsay.
Even assuming arguendo that theft had been committed, the third element of fencing
is wanting in this case.
In ruling that petitioner knew or should have known that the grader was the object of
theft, the trial court held that petitioner was unable to rebut the presumption under PD
1612, thus:
Accused was unable to rebut the presumption under PD1612. The Certificate of
Ownership executed by seller is unavailing. Suffice it to state that said document being
self-serving should not have been relied upon by the accused. It might even be stated
that this document should have made him even more wary that the seller did not own
the heavy equipment sold to him. The unauthenticated list of equipment purportedly
prepared by the DPWH that did not include the heavy equipment and submitted by the
accused as part of his defense is also unavailing. Put simply, he verified with the DPWH
its ownership of the heavy equipment long after the instant case was filed. What is
more, the list he presented was merely a photocopy whose authenticity is doubtful.
Under Section 6 of PD 1612, what he should have done was to secure a
clearance/permit from the police.23
5
The trial court ruled that petitioner should not have relied upon the Certificate of
Ownership presented by Banosing as it is self-serving. Instead, petitioner should have
secured a clearance or permit from the police, in compliance with Sec. 6 of PD 1612.
The CA went even further and placed the burden on petitioner, stating:
x x x (Emphasis supplied)
In this, case, the accused-appellant is engaged in buying and selling equipment as[ the
proprietor of Basco Metal Supply. As a businessman who regularly engaged in buying
and selling equipment, the accused-appellant should have exercised more diligence
and prudence in ascertaining whether Petronilo Ban[o]sing was indeed the real owner
of the Komatsu Grader. Moreover, the circumstances of the sale should have put the
accused-appellant on guard and should have impelled him to exercise more caution in
dealing with Petronilo Ban[o]sing who was selling not an ordinary run down equipment
but a heavy duty Komatsu grader which can only be owned by a select few who engage
in land development. Instead, the accused-appellant simply relied on the Affidavit of
Ownership and the representations of Petronilo Ban[o]sing that he was a contractor,
which is but a last ditch attempt, albeit futile, to exculpate himself from criminal liability. 24
We disagree.
On the presumption that fencing had been committed as provided by Sec. 5 of PD
1612, we rule that petitioner was able to overcome the same upon his presentation of
the Affidavit of Ownership which he secured from, Petronilo Banosing.
Both the RTC and the CA failed to consider that the Affidavit of Ownership given by
Petronilo Banosing to petitioner was a duly notarized document which, by virtue of its
notarization, enjoys a presumption of regularity, as elaborated in Ocampo v. Land Bank
of the Philippines:
It is well settled that a document acknowledged before a notary public is a public
document that enjoys the presumption of regularity. It is a prima facie evidence of the
truth of the facts stated therein and a conclusive presumption of its existence and due
execution. To overcome this presumption, there must be presented evidence that is
clear and convincing. Absent such evidence, the presumption must be upheld. In
addition, one who denies the due execution of a deed where one's signature appears
has the burden of proving that contrary to the recital in the jurat, one never appeared
before the notary public arid acknowledged the deed to be a voluntary act. We have
also held that a notarized instrument is admissible in evidence without further proof of
its due execution and is Conclusive as to the truthfulness of Its contents, and has in its
favor the presumption of regularity.25cralawred (citations omitted)
Respondent argues that the presumption of regularity of the notarized Affidavit of
Ownership had been overturned. We rule otherwise. As pointed out by respondent, to
overcome the presumption of regularity of notarized documents, it is necessary to
 6

contradict it with "evidence that is clear, convincing and more than merely necessary clearance or permit from the station commander of the Integrated National
preponderant." Contrary to respondent's assertion, the ownership of the subject grader Police in" the town or city where such store, establishment or entity is located. The
was not conclusively established by the prosecution As earlier stated, Engr. Gulmatico Chief of Constabulary/Director General, Integrated National Police shall promulgate
was unable to confirm its ownership in his testimony. Further, the Memorandum Receipt such rules and regulations to carry out the provisions of this section. Any person who
also failed to establish this. Despite the many opportunities to submit additional proof fails to secure the clearance or permit required by this, section or who violates any of
of ownership, the prosecution failed to do so. the provisions of the rules and regulations promulgated thereunder shall upon
conviction be punished as a fence, (Emphasis supplied)
The trial court also erred in applying Sec. 6 of PD 1612 to the present case:

chanRoblesvirtualLawlibrary
While one who is in possession of the proceeds of robbery or theft is presumed to have
knowledge of the fact that said items were Stolen or (sic) PD 1612 provides a safeguard
or a protection for a would be buyer of second hand articles. Thus, Section 6 of said
law provides:ChanRoblesVirtualawlibrary
"SEC. 6. Clearance/Permit to Sell/Used Second Hand Articles. For purposes of this
Act, all stores, establishments or entities dealing in the buy and sell of any good, article
item, object of anything of value obtained from an unlicensed dealer or supplier thereof,
shall before offering the same for sale to the public, secure the necessary clearance or
permit from the station commander of the Integrated National Police in the town or city
where such store, establishment or entity is located. The Chief of Constabulary/Director
General, Integrated National Police shall promulgate such rules and regulations to carry
out the provisions of this section. Any person who fails to secure the clearance or permit
required by this section or who violates any of the provisions of the rules and regulations
promulgated thereunder shall upon conviction be punished as a fence."
Clearly, the clearance stated in Sec. 6 of PD 1612 is only required if several conditions,
are met: first, that the person, store, establishment or entity is in the business of buying
and selling of any good, articles item object, or anything of value; second, that such
thing of value was obtained from an unlicensed dealer or supplier thereof; and third,
that such thing of value is to be offered for sale to the public.
In the present case, the first and third requisites were not met. Nowhere was it
established that petitioner was engaged in the business of buy and sell. Neither was
the prosecution able to establish that petitioner intended to sell or was actually selling
the subject grader to the public.
During his cross-examination, petitioner testified:
PROS. SEPULVEDA

The aforequoted section simply means that a person who is engaged in the buying and Q What business are you engaged in?
selling of an item from an unlicensed dealer or supplier shall, before offering the same
for sale to the public[,] secure the necessary clearance or permit from the station A I am buying used equipment.
commander of the Integrated National Police in the town or city where such
establishment or entity is located and any person who fails to secure the clearance or Q Such as grader?
permit required by |his section, shall upon conviction be punished as a fence,
(underscoring in the original)
A Yes.27

x x x Under Section 6 of PD 1612, what he should have done was to secure a

clearance/permit from the police.26 Despite the lack of evidence supporting such conclusion, the CA even made a
presumption that petitioner was engaged in the business of buy and sell in the assailed
Decision, thereby erroneously applying Sec. 6, to wit:
It appears that both the RTC and the CA ruled that petitioner should have first secured
a Clearance or a permit from the police, in compliance with Sec. 6 of PD 1612.
chanRoblesvirtualLawlibrary
However, said provision is inapplicable to the present case.
In this case, the accused-appellant is engaged in buying and selling equipment as
Sec. 6 of PD 1612 provides:
the proprietor of Basco Metal Supply. As a businessman who regularly engaged in
SEC. 6. Clearance/Permit to Sell/Used Second Hand Articles. For purposes of this buying and selling equipment, the accused-appellant should have exercised more
Act, all stores, establishments or entities dealing in the buy and sell of any good, diligence and prudence in ascertaining whether Petronilo Ban[o]sing was indeed the
article, item, object or anything of value obtained from an unlicensed dealer or real owner of the Komatsu Grader, x x x
supplier thereof, shall before offering the same for sale to the public, secure the

xxx The accused-appellant, who is engaged in the business of buying and selling
equipment, clearly purchased the Komatsu Grader (sic) with the intention of re-selling
the grader and its parts for profit.28
It is puzzling how the CA arrived at this conclusion when nowhere in the testimonies of
the witnesses was it shown that petitioner intended to resell the subject grader to the
public. The fact that the subject grader was not intended to be sold to the public is even
further bolstered by the prosecution's witnesses' discovery that the grader was found
in several pieces and in different locations within petitioner's compound. Thus, it was
erroneous for the CA to make such a conclusion when the evidence presented does
not support it.
Furthermore, requiring petitioner to secure the police certification is an act of futility
considering that at the time when the subject grader was being offered to petitioner, no
police report of the alleged theft has yet been made. To recall, petitioner purchased the
subject grader from Petronilo Banosing on January 17, 1997, as evidenced by the Deed
of Sale of the same date.29 Yet, it was only on January 26, 1997 that Engr. Gulmatico
discovered the alleged theft:
PROS. BELO
Q While under your accountability, can you recall if anything happened in this particular unit?
A On January 26, 1997, Iwas informed by my driver that this said graderr was previously lodged for repair in the
compound of Petronilo Banosing in the evening of January 26, 1997. 30
Engr. Gulrriatico further testified that he only reported the matter to the police on
January 27, 1997, or 10 days after the subject grader was already sold to herein
petitioner, as follows:
PROS. BELO
Q After you were informed that this was taken by somebody, what action, if any, did you take?
A January 26 was a Monday so I went to the district the next day to file a case or gather information (sic) about the Nohralla
and after the inquest there we found out that one Petronilo Banosing was the culprit and we filefd] a case against him
before Judge Ayko.31
Thus, 'even if petitioner had secured -the police clearance in compliance with Sec. 6 of
PD 1612, it would not have shown that the grader was stolen since no theft had yet
been reported at that time.
7
It is also worthy to note that, due to the prosecution's failure to present any evidence
on the grader's actual value, the trial court assessed its value at one hundred thousand
pesos (P100,000) since parts of the engine were already, missing at the time of its
recovery. However, petitioner testified that he paid Petronilo Banosing the amount of
four hundred thousand pesos (P400,000). The disparity in the assessed value of the
grader and the amount paid by petitioner would show that petitioner believed in good
faith in the representations of Petronilo Banosing. Indeed, it is contrary to common
human experience for a businessman to pay a consideration much higher than the
actual value of an item unless he was made to believe otherwise.
Finally, we- find that the conviction of petitioner violated his constitutional right to be
informed of the nature and cause of tne accusation against him.
In Ariddya v. People of the Philippines,32 we ruled that:
It is fundamental that every element constituting Jhe offense must be alleged in the
information. The main purpose of requiring the various elements of a crime to be set
out in the information is to enable the accused to suitably prepare his defense because
he is presumed to have no independent knowledge of the facts that constitute the
offense. The allegations of facts constituting the offense charged are substantial
matters and an accused's right to question his conviction based on facts not alleged in
the information cannot be waived. No matter how conclusive and convincing the
evidence of guilt may be, an accused cannot be convicted of any offense unless it is
charged in the information on which he is tried or is necessarily included therein. To
convict him of a ground not alleged while he is concentrating his defense against the
ground alleged would plainly be unfair and underhanded. The rule is that a variance
between the allegation in the information and proof adduced during trial shall be fatal
to the criminal case if it is material and prejudicial to the accused so much so that it
affects his substantial rights.
The Information charging petitioner reads:
That on or about January 16, 1997, in the City of Davao, Philippines, and within the
jurisdiction of this Honorable Court, the above-mentioned accused, being then the
proprietor of Basco Metal Supply located at Matina, Davao City, with intent to gain for
himself, wilfully (sic), unlawfully and feloniously purchased and received for
P400,000.00 one (1) unit Komatsu Road Grader with Chassis Model and Serial No.
GD-51R-100049 and bearing an (sic) Engine Serial Number 6D951-55845 owned by
Second Rural Road Improvement Project (SRRIP) PMO-DPWH of Isulan, Sultan
Kudarat, being lodged for repair at the' Facoma Compound of Poblacion Norala, South
Cotobato, and possessed the same, knowing that said Komatsu Road Grader was
stolen, thereby committing an act of fencing in violation of the Anti-Fencing Law of
1979, to the damage and prejudice of the aforesaid complainant in its true value of
P2,000[,]000.00.
CONTRARY TO LAW.33 (Emphasis supplied)

The Information presumes that petitioner knew of the alleged theft of the subject grader,
pertaining to the first part of the third element of the crime of fencing, to wit:
chanRoblesvirtualLawlibrary
3. The accused knows or should have known that the said article, item, object or
anything of value has been derived from, the proceeds of the crime of robbery or
theft.34 (Emphasis supplied)
The trial court, however, convicted petitioner on the ground that he should have known
that the subject grader was derived from the proceeds of theft, pertaining to the second
part of the third element:
Accused was unable to rebut the presumption under PD1612. The Certificate of
Ownership executed by seller is unavailing. Suffice it to state that said document being
self-serving should not have been relied upon by the Reused. It might even be stated
that this document should have made him even more wary that the seller did not
own the heavy equipment sold to him. The unauthenticated list of equipment
purportedly prepared by the DPWH that did not include the heavy equipment aid
submitted by the accused as part of his defense is also unavailing. Put simply, he
verified with the DPWH its ownership of the heavy equipment long after the instant case
was filed. What is more, the list he presented was merely a photocopy whose
authenticity is doubtful. Under Section 6 of PD 1612, what he should have done was to
secure a clearance/permit from the police.35 (Emphasis supplied)
From the foregoing, we find that the CA erred in affirming the trial court's findings and
in convicting herein petitioner. It is necessary to remember that in all criminal
prosecutions, the burden of proof is on the prosecution to establish the guilt of the
accused beyond reasonable doubt. It has the duty to prove each and every element
of the crime charged in the information to warrant a finding of guilt for the said
crime.36 Furthermore, the information must correctly reflect the charges against the
accused before any conviction may be made.
In the case at bar, the prosecution failed to prove the first and third essential element
of the crime charged in the information. Thus, petitioner should be acquitted due to
insufficiency of evidence and reasonable doubt.
WHEREFORE, the Decision dated July 30, 2013 and the Resolution dated February
28, 2014 of the Court of Appeals in CA-G.R. CR No. 00740-MIN, affirming the Decision
dated February 17, 2009 issued by the Regional Trial Court of Davao City, Branch 8,
which found petitioner Mariano Lim guilty beyond reasonable doubt of violating
Presidential Decree No. 1612, otherwise known as the Anti-Fencing Law of 1979, are
hereby REVERSED and SET ASIDE. Petitioner Mariano Lim is
hereby ACQUITTED based on insufficiency of evidence and reasonable doubt.
SO ORDERED.
8
G.R. No. 181184 January 25, 2012
MEL DIMAT, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
This case is about the need to prove in the crime of "fencing" that the accused knew or
ought to have known that the thing he bought or sold was the fruit of theft or robbery.
The Facts and the Case
The government charged the accused Mel Dimat with violation of the Anti-Fencing
Law1 before the Manila Regional Trial Court (RTC), Branch 03, in Criminal Case 02-
202338.
Samson Delgado, together with Jose Mantequilla and police officers Danilo Ramirez
and Ruben Familara, testified in substance that in December 2000 Delgado’s wife,
Sonia, bought from accused Dimat a 1997 Nissan Safari bearing plate number WAH-
569 for ₱850,000.00. The deed of sale gave the vehicle’s engine number as TD42-
126134 and its chassis number as CRGY60-YO3553.
On March 7, 2001 PO Ramirez and fellow officers of the Traffic Management Group
(TMG) spotted the Nissan Safari on E. Rodriguez Avenue, Quezon City, bearing a
suspicious plate number. After stopping and inspecting the vehicle, they discovered
that its engine number was actually TD42-119136 and its chassis number CRGY60-
YO3111. They also found the particular Nissan Safari on their list of stolen vehicles.
They brought it to their Camp Crame office and there further learned that it had been
stolen from its registered owner, Jose Mantequilla.
Mantequilla affirmed that he owned a 1997 Nissan Safari that carried plate number
JHM-818, which he mortgaged to Rizal Commercial Banking Corporation. The vehicle
was carnapped on May 25, 1998 at Robinsons Galleria’s parking area. He reported the
carnapping to the TMG.
For his part, Dimat claimed that he did not know Mantequilla. He bought the 1997
Nissan Safari in good faith and for value from a certain Manuel Tolentino under a deed
of sale that gave its engine number as TD42-126134 and its chassis number as
CRGY60-YO3553. Dimat later sold the vehicle to Delgado. He also claimed that,
although the Nissan Safari he sold to Delgado and the one which the police officers
took into custody had the same plate number, they were not actually the same vehicle.
On July 20, 2005 the RTC found Dimat guilty of violation of the Anti-Fencing Law and
sentenced him to an imprisonment of 10 years, 8 months, and 1 day of prision mayor
to 20 years of reclusion temporal. The court also ordered him to pay ₱850,000.00 as
actual damages and ₱50,000.00 as exemplary damages, as well as the costs of suit.
On October 26, 2007 the Court of Appeals (CA) affirmed in CA-G.R. CR 297942 the
RTC decision but modified the penalty to imprisonment of 8 years and 1 day of prision
mayor in its medium period, as minimum, to 17 years, 4 months, and 1 day of reclusion
temporal in its maximum period, as maximum, thus, the present appeal.
 9

The Issue Presented Sonia Delgado who apparently made no effort to check the papers covering her
purchase. That she might herself be liable for fencing is of no moment since she did
The sole issue presented in this case is whether or not the CA correctly ruled that not stand accused in the case.
accused Dimat knowingly sold to Sonia Delgado for gain the Nissan Safari that was
earlier carnapped from Mantequilla. WHEREFORE, the Court AFFIRMS the decision of the Court of Appeals dated October
26, 2007 in CA-G.R. CR 29794.
The Ruling of the Court
SO ORDERED.
The elements of "fencing" are 1) a robbery or theft has been committed; 2) the accused,
who took no part in the robbery or theft, "buys, receives, possesses, keeps, acquires,
conceals, sells or disposes, or buys and sells, or in any manner deals in any article or
object taken" during that robbery or theft; (3) the accused knows or should have known
that the thing derived from that crime; and (4) he intends by the deal he makes to gain
for himself or for another.3

Here, someone carnapped Mantequilla’s Nissan Safari on May 25, 1998. Two years
later in December 2000, Dimat sold it to Delgado for ₱850,000.00. Dimat’s defense is
that the Nissan Safari he bought from Tolentino and later sold to Delgado had engine
number TD42-126134 and chassis number CRGY60-YO3553 as evidenced by the
deeds of sale covering those transactions. The Nissan Safari stolen from Mantequilla,
on the other hand, had engine number TD42-119136 and chassis number CRGY60-
YO3111.

But Dimat’s defense is flawed. First, the Nissan Safari Delgado bought from him, when
stopped on the road and inspected by the police, turned out to have the engine and
chassis numbers of the Nissan Safari stolen from Mantequilla. This means that the
deeds of sale did not reflect the correct numbers of the vehicle’s engine and chassis.

Second. Dimat claims lack of criminal intent as his main defense. But Presidential
Decree 1612 is a special law and, therefore, its violation is regarded as malum
prohibitum, requiring no proof of criminal intent.4 Of course, the prosecution must still
prove that Dimat knew or should have known that the Nissan Safari he acquired and
later sold to Delgado was derived from theft or robbery and that he intended to obtain
some gain out of his acts.1âwphi1

Dimat testified that he met Tolentino at the Holiday Inn Casino where the latter gave
the Nissan Safari to him as collateral for a loan. Tolentino supposedly showed him the
old certificate of registration and official receipt of the vehicle and even promised to give
him a new certificate of registration and official receipt already in his name. But
Tolentino reneged on this promise. Dimat insists that Tolentino’s failure to deliver the
documents should not prejudice him in any way. Delgado himself could not produce
any certificate of registration or official receipt.

Based on the above, evidently, Dimat knew that the Nissan Safari he bought was not
properly documented. He said that Tolentino showed him its old certificate of
registration and official receipt. But this certainly could not be true because, the vehicle
having been carnapped, Tolentino had no documents to show. That Tolentino was
unable to make good on his promise to produce new documents undoubtedly confirmed
to Dimat that the Nissan Safari came from an illicit source. Still, Dimat sold the same to

G.R. No. 144054 June 30, 2006
NIEVES A. SAGUIGUIT, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
Assailed and sought to be set aside in this petition for review under Rule 45 of the Rules
of Court is the Decision1 dated June 28, 2000 of the Court of Appeals (CA) in CA-G.R.
CR No. 22180, affirming the decision rendered by the Regional Trial Court (RTC) of
Angeles City convicting herein petitioner Nieves Saguiguit of violation (eight [8] counts)
of Batas Pambansa (B.P.) Blg. 22, otherwise known as the Bouncing Checks Law.
The facts:
In eight (8) separate informations filed with the RTC of Angeles City, thereat docketed
as Criminal Case Nos. 94-03-226 to 94-03-233, petitioner was charged with violations
of the Bouncing Checks Law. All containing identical allegations as to the elements of
the offense charged and differing only as regards the respective amounts and due
dates of the check involved in each case, the eight (8) informations uniformly alleged:
"That on or about the 1st week of April, 1991, in the City of Angeles, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, did then and
there willfully, unlawfully and feloniously draw and issue to the complainant MR.
ELMER EVANGELISTA a Traders Royal Bank Check No._________________, in the
amount of _________________, dated _________________, 1991, well knowing and
without informing the complainant that she has no sufficient funds with the drawee
bank, which check when deposited for payment was dishonored for reason "ACCOUNT
CLOSED" and demand notwithstanding for more than five (5) days from notice of
dishonor, the accused failed and refused and still fails and refuses to redeem the said
check to the damage and prejudice of the complainant ELMER EVANGELISTA in the
afore-mentioned amount of ________________, Philippine Currency".
After trial, the RTC, in a decision dated March 16, 1998, adjudged petitioner guilty as
charged in each information and accordingly sentenced her to suffer imprisonment and
pay fine and to indemnify private complainant, thus:
1. In Crim. Case No. 94-03-226, one (1) year imprisonment and to pay a fine of
P26,500.00 with subsidiary imprisonment in case of insolvency, to indemnify the
complainant the amount of P26,500.00 and to pay the cost;
2. In Crim. Case No. 94-03-227, one (1) year imprisonment and to pay a fine of
P28,000.00 with subsidiary imprisonment in case of insolvency, to indemnify the
complainant the amount of P28,000.00 and to pay the cost;
3. In Crim. Case No. 94-03-228, one (1) year imprisonment and to pay a fine of
P21,500.00 with subsidiary imprisonment in case of insolvency, to indemnify the
complainant the amount of P21,500.00 and to pay the cost;
10
4. In Crim. Case No. 94-03-229, one (1) year imprisonment and to pay a fine of
P20,000.00 with subsidiary imprisonment in case of insolvency, to indemnify the
complainant the amount of P20,000.00 and to pay the cost;
5. In Crim. Case No. 94-03-230, one (1) year imprisonment and to pay a fine of
P21,500.00 with subsidiary imprisonment in case of insolvency, to indemnify the
complainant the amount of P21,500.00 and to pay the cost;
6. In Crim. Case No. 94-03-231, one (1) year imprisonment and to pay a fine of
P21,500.00 with subsidiary imprisonment in case of insolvency, to indemnify the
complainant the amount of P21,500.00 and to pay the cost;
7. In Crim. Case No. 94-03-232, one (1) year imprisonment and to pay a fine of
P21,500.00 with subsidiary imprisonment in case of insolvency, to indemnify the
complainant the amount of P21,500.00 and to pay the cost; and
8. In Crim. Case No. 94-03-233, one (1) year imprisonment and to pay a fine of
P22,500.00 with subsidiary imprisonment in case of insolvency, to indemnify the
complainant the amount of P22,500.00 and to pay the cost. 2
Unable to accept the verdict of guilt, petitioner went on appeal to the CA whereat her
appellate recourse was docketed as CA-G.R. CR NO. 22180. In the herein assailed
Decision dated June 28, 2000, the appellate court affirmed that of the trial court:
WHEREFORE, premises considered, the decision dated March 16, 1998 rendered by
the court a quo is hereby AFFIRMED with costs against the appellant (herein
petitioner).
SO ORDERED.3
Undaunted, petitioner interposed the instant recourse urging the Court not only to
review the factual determinations of the CA, but also to reexamine extant jurisprudence
on the Bouncing Checks Law. As the petitioner would put it:
The instant case calls for a reexamination and modification, if not abandonment, of
rulings to the effect that the mere issuance of a check which is subsequently dishonored
makes the issuer liable for violation of BP Blg. 22 regardless of the intent of the parties
…. Petitioner respectfully submits that it was not the intention of the lawmaking body,
… to make the issuance of a bum check ipso facto a criminal offense already; there
must be an intent to commit the prohibited act, and subject check should be issued to
apply on account or for value.
This case also calls for a review of the findings of the facts of the CA, as and by way of
exception to the rule that only questions of law may be raised in a petition for review
under Rule 45 …. Petitioner humbly submits that the CA's findings of fact are not
supported by evidence and differ from those of the [RTC]. xxx 4 (Underscoring in the
original; citation omitted.)
The petition is devoid of merit.

At its most basic, what the petitioner asks is for the Court to delve into the policy behind
or wisdom of a statute, i.e., B.P. Blg. 22, which, under the doctrine of separation of
powers, it cannot do, matters of legislative wisdom being within the domain of
Congress.5 Even with the best of motives, the Court can only interpret and apply the
law and cannot, despite doubts about its wisdom, amend or repeal it. Courts of justice
have no right to encroach on the prerogatives of lawmakers, as long as it has not been
shown that they have acted with grave abuse of discretion. And while the judiciary may
interpret laws and evaluate them for constitutional soundness and to strike them down
if they are proven to be infirm, this solemn power and duty do not include the discretion
to correct by reading into the law what is not written therein. 6
Here, petitioner makes no attempt to challenge the constitutionality of the Bouncing
Checks Law. At bottom, then, petitioner's last and only remaining remedy is to seek an
amendment of the law in question, a matter which should be addressed to Congress
no less. For at the end of the day, the legislature is the primary judge of the necessity,
adequacy, wisdom, reasonableness and expediency of any law. 7
xxx Under our system of government where powers are allocated to the three (3) great
branches, only the Legislature can remedy such deficiency [in the law], if any, by proper
amendment…. 8 (Words in bracket added).
Petitioner likewise calls for "modification, if not abandonment" of the rulings that hold
issuers of bad checks liable under the Bouncing Checks Law regardless of intent. 9
The call must fall.
Judicial decisions applying or interpreting laws shall form a part of the legal system of
the Philippines.10 Stare decisis et non quieta movere. Let the decision stand and disturb
not what is already settled. The doctrine of stare decisis is a salutary and necessary
rule. When the Court lays down a principle of law applicable to a certain set of facts, it
must adhere to such principle and apply it to all future cases where the facts in issue
are substantially the same.11 Else, the ideal of a stable jurisprudential system can never
be achieved.
Specifically, the principle underlying the concept of mala prohibita is the stare decisis
governing a long history of cases involving violations of the Bouncing Checks Law.
xxx [T]he gravamen of the offense is the act of making and issuing a worthless check
or any check that is dishonored upon its presentment for payment and putting them in
circulation. …. The law was designed to prohibit and altogether eliminate the
deleterious and pernicious practice of issuing checks with insufficient or no credit or
funds therefor. Such practice is deemed a public nuisance, a crime against public order
to be abated. The mere act of issuing a worthless check, is covered by B.P. 22. It is a
crime classified as malum prohibitum. xxx.
The effects of the issuance of a worthless check transcends the private interests of the
parties …. The mischief it creates is not only a wrong to the payee or holder, but also
an injury to the public. The harmful practice of putting valueless commercial papers in
circulation, multiplied a thousandfold, can very well pollute the channels of trade and
11
commerce, injure the banking system and eventually hurt the welfare of society and the
public interest. xxx. –
xxx xxx xxx
It bears stressing that, whether a person is an accommodation party is a question of
intent. When the intent of the parties does not appear on the face of the check, it must
be ascertained in the light of the surrounding facts and circumstances. Invariably, the
tests applied are the purpose test and the proceeds test. xxx. What the law punishes is
the issuance itself of a bouncing check and not the purpose for which it was issued or
of the terms and conditions relating to its issuance. The mere act of issuing a worthless
check, whether merely as an accommodation, is covered by B.P. 22. Hence, the
agreement surrounding the issuance of a check is irrelevant to the prosecution and
conviction of the petitioner. xxx.12
Neither can the Court grant petitioner's "call for review of the findings of the facts of the
CA." 13 We need not belabor the basic rule that the Court is not a trier of facts.
Moreover, granting arguendo that petitioner's version of the facts is true – that her
transaction was only with a certain Bernadette Montes and not with private complainant
Elmer Evangelista – the hard fact remains that she issued eight (8) bouncing checks
that went into circulation. In net effect, what she did was to borrow from Ruiz, to pollute
the channels of trade and commerce, injuring the banking system, and eventually
hurting the welfare of society and the public interest.
Finally, while we affirm petitioner's conviction, we deem it proper to modify the penalty
imposed by the trial court and effectively sustained by the CA, pursuant to the policy
established under Supreme Court (SC) Administrative Circular No. 12-2000 dated
November 21, 2000, on the subject: PENALTY FOR VIOLATION OF [BP] Blg. 22, as
clarified in SC Administrative Circular No. 13-2001 dated February 14, 2001, pertinently
reading as follows:
SC Administrative Circular No. 12-2000
Section 1 of B.P. Blg. 22 … imposes the penalty of imprisonment of not less than thirty
(30) days but not more than one (1) year OR a fine of not less than but not more than
double the amount of the check, which fine shall in no case exceed P200,000, OR both
such fine and imprisonment at the discretion of the court.
In its decision in Eduardo Vaca v. Court of Appeals (G.R. No. 131714, 16 November
1998, 298 SCRA 656, 664) the Supreme Court … modified the sentence imposed for
violation of B.P. Blg. 22 by deleting the penalty of imprisonment and imposing only the
penalty of fine in an amount double the amount of the check. In justification thereof, the
Court said:
Petitioner are first-time offenders. They are Filipino entrepreneurs who presumably
contribute to the national economy. Apparently, they brought this appeal, believing in
all good faith, although mistakenly that they had not committed a violation of B.P. Blg.
22. Otherwise they could simply have accepted the judgment of the trial court and
applied for probation to evade a prison term. It would best serve the ends of criminal
 12

justice if in fixing the penalty within the range of discretion allowed by §1, par. 1, the
same philosophy underlying the Indeterminate Sentence Law is observed, namely, that
of redeeming valuable human material and preventing unnecessary deprivation of
personal liberty and economic usefulness with due regard to the protection of the social
order. In this case we believe that a fine in an amount equal to double the amount of
the check involved is an appropriate penalty to impose on each of the petitioners.
In the recent case of Rosa Lim v. People of the Philippines … the Supreme Court En
Banc, applying Vaca also deleted the penalty of imprisonment and sentenced the
drawer of the bounced check to the maximum of the fine allowed by B.P. Blg. 22, xxx.. 14
SC Administrative Circular No. 13-2001
The clear tenor and intention of Administrative Circular No. 12-2000 is not to remove
imprisonment as an alternative penalty, but to lay down a rule of preference in the
application of the penalties provided for in B.P. Blg. 22.
The pursuit of this purpose clearly does not foreclose the possibility of imprisonment
for violations of B.P. Blg. 22. Neither does it defeat the legislative intent behind the law.
Thus, Administrative Circular No. 12-2000 establishes a rule of preference in the
application of the penal provisions of B.P. Blg. 22 such that where the circumstances
of both the offense and the offender clearly indicate good faith or a clear mistake of fact
without taint of negligence, the imposition of a fine alone should be considered as the
more appropriate penalty. Needless to say, the determination of whether the
circumstances warrant the imposition of a fine alone rests solely upon the
Judge. 15 Should the Judge decide that imprisonment is the more appropriate
penalty, Administrative Circular No. 12-2000 ought not be deemed a hindrance. 16
in Young v. Court of Appeals,18 of the latest stare decisis towards modifying the
penalties imposable herein. In an earlier case likewise on all fours with this case, the
Court held:
However, in view of [SC] Administrative Circular No. 12-2000, as clarified by
Administrative Circular No. 13-2001, establishing a rule of preference in the application
of the penalties provided for in B.P. Blg. 22; and the recommendation of the Solicitor
General in its Comment that the policy laid down in Vaca vs. Court of
Appeals,19 and Lim vs. People,20 of redeeming valuable human material and
preventing unnecessary deprivation of personal liberty and economic usefulness, be
considered in favor of petitioner who is not shown to be a habitual delinquent or a
recidivist, we find that the penalty imposed by the Court of Appeals should be modified
by deleting the penalty of imprisonment and imposing only a fine of xxx.21
WHEREFORE, the decision appealed from is AFFIRMED with MODIFICATION that
petitioner Nieves Saguiguit is hereby –
1) Sentenced to pay a FINE equivalent to double the amount of the check involved in
each of Criminal Cases Nos. 94-03-226 to 94-03-233 with subsidiary imprisonment not
to exceed six (6) months in each of said cases in the event of insolvency, pursuant to
paragraph 2, Article 39 of the Revised Penal Code; and
2) Indemnify the private complainant with the total amount of the subject checks plus
six percent (6%) interest from date of filing of the informations until finality of this
Decision, the amount of which, inclusive the interest, is subject to twelve percent (12%)
interest per annum until fully paid.
SO ORDERED.

It is, therefore, understood that:

1. Administrative Circular 12-2000 does not remove imprisonment as an alternative

penalty for violations of B.P. Blg. 22;

2. The Judges concerned may, in the exercise of sound discretion, and taking into
consideration the peculiar circumstances of each case, determine whether the
imposition of a fine alone would best serve the interests of justice or whether forbearing
to impose imprisonment would depreciate the seriousness of the offense, work violence
on the social order, or otherwise be contrary to the imperatives of justice; 17

3. Should only a fine be imposed and the accused be unable to pay the fine, there is
no legal obstacle to the application of the Revised Penal Code provisions on subsidiary
imprisonment.

While the decisions of the trial court and that of the CA dated March 16, 1998 and June
28, 2000, respectively, were promulgated before SC Administrative Circular No. 12-
2000 and its subsequent clarificatory circular took effect, there is no legal impediment
to their application under the premises, favorable as they are to the accused. What is
more, the pleadings before us contain no indication that petitioner was a habitual
delinquent or recidivist, a circumstance strongly arguing for the application, as we did

G.R. No. 96132 June 26, 1992
ORIEL MAGNO, petitioner,
vs.
HONORABLE COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.
This is an appeal by certiorari under Rule 45 of the Revised Rules of Court, from the
decision* of the respondent Court of Appeals which affirmed in toto the decision of the
Regional Trial Court of Quezon City, Branch 104 finding the accused petitioner, guilty
of violations of Batas Pambansa Blg. 22, in Criminal Cases Q-35693 to 35696 before
they were elevated on appeal to the respondent appellate Court under CA-G.R. CR No.
04889.
The antecedent facts and circumstances of the four (4) counts of the offense charged,
have been clearly illustrated, in the Comment of the Office of the Solicitor General as
official counsel for the public respondent, thus:
Petitioner was in the process of putting up a car repair shop sometime in April 1983,
but a did not have complete equipment that could make his venture workable. He also
had another problem, and that while he was going into this entrepreneurship, he lacked
funds with which to purchase the necessary equipment to make such business
operational. Thus, petitioner, representing Ultra Sources International Corporation,
approached Corazon Teng, (private complainant) Vice President of Mancor Industries
(hereinafter referred to as Mancor) for his needed car repair service equipment of which
Mancor was a distributor, (Rollo, pp. 40-41)
Having been approached by petitioner on his predicament, who fully bared that he had
no sufficient funds to buy the equipment needed, the former (Corazon Teng) referred
Magno to LS Finance and Management Corporation (LB Finance for brevity) advising
its Vice-President, Joey Gomez, that Mancor was willing and able to supply the pieces
of equipment needed if LS Finance could accommodate petitioner and provide him
credit facilities. (Ibid., P. 41)
The arrangement went through on condition that petitioner has to put up a warranty
deposit equivalent to thirty per centum (30%) of the total value of the pieces of
equipment to be purchased, amounting to P29,790.00. Since petitioner could not come
up with such amount, he requested Joey Gomez on a personal level to look for a third
party who could lend him the equivalent amount of the warranty deposit, however,
unknown to petitioner, it was Corazon Teng who advanced the deposit in question, on
condition that the same would be paid as a short term loan at 3% interest (Ibid., P. 41)
The specific provision in the Leasing Agreement, reads:
1.1. WARRANTY DEPOSIT — Before or upon delivery of each item of Equipment, the
Lessee shall deposit with the Lessor such sum or sums specified in Schedule A to serve
as security for the faithful performance of its obligations.
13
This deposit shall be refunded to the Lessee upon the satisfactory completion of the
entire period of Lease, subject to the conditions of clause 1.12 of this Article. (Ibid., p.
17)
As part of the arrangement, petitioner and LS Finance entered into a leasing agreement
whereby LS Finance would lease the garage equipments and petitioner would pay the
corresponding rent with the option to buy the same. After the documentation was
completed, the equipment were delivered to petitioner who in turn issued a postdated
check and gave it to Joey Gomez who, unknown to the petitioner, delivered the same
to Corazon Teng. When the check matured, Petitioner requested through Joey Gomez
not to deposit the check as he (Magno) was no longer banking with Pacific Bank.
To replace the first check issued, petitioner issued another set of six (6) postdated
checks. Two (2) checks dated July 29, 1983 were deposited and cleared while the four
(4) others, which were the subject of the four counts of the aforestated charges subject
of the petition, were held momentarily by Corazon Teng, on the request of Magno as
they were not covered with sufficient funds. These checks were a) Piso Bank Check
Nos. 006858, dated August 15, 1983, 006859 dated August 28, 1983 and 006860 dated
September 15, 1983, all in the amount of P5,038.43 and No. 006861 dated September
28, 1983, in the amount of P10,076.87. (Ibid., pp. 42 & 43).
Subsequently, petitioner could not pay LS Finance the monthly rentals, thus it pulled
out the garage equipments. It was then on this occasion that petitioner became aware
that Corazon Teng was the one who advanced the warranty deposit. Petitioner with his
wife went to see Corazon Teng and promised to pay the latter but the payment never
came and when the four (4) checks were deposited they were returned for the reason
"account closed." (Ibid., p. 43)
After joint trial before the Regional Trial Court of Quezon City, Branch 104, the accused-
petitioner was convicted for violations of BP Blg. 22 on the four (4) cases, as follows:
. . . finding the accused-appellant guilty beyond reasonable doubt of the offense of
violations of B.P. Blg. 22 and sentencing the accused to imprisonment for one year in
each Criminal Case Nos. Q-35693, Q-35695 and Q-35696 and to pay to complainant
the respective amounts reflected in subject checks. (Ibid., pp. 25, 27)
Reviewing the above and the affirmation of the above-stated decision of the court a
quo, this Court is intrigued about the outcome of the checks subject of the cases which
were intended by the parties, the petitioner on the one hand and the private complainant
on the other, to cover the "warranty deposit" equivalent to the 30% requirement of the
financing company. Corazon Teng is one of the officers of Mancor, the supplier of the
equipment subject of the Leasing Agreement subject of the high financing scheme
undertaken by the petitioner as lessee of the repair service equipment, which was
arranged at the instance of Mrs. Teng from the very beginning of the transaction.
By the nature of the "warranty deposit" amounting to P29,790.00 corresponding to 30%
of the "purchase/lease" value of the equipments subject of the transaction, it is obvious
that the "cash out" made by Mrs. Teng was not used by petitioner who was just paying
rentals for the equipment. It would have been different if petitioner opted to purchase

the pieces of equipment on or about the termination of the lease-purchase agreement
in which case he had to pay the additional amount of the warranty deposit which should
have formed part of the purchase price. As the transaction did not ripen into a purchase,
but remained a lease with rentals being paid for the loaned equipment, which were
pulled out by the Lessor (Mancor) when the petitioner failed to continue paying possibly
due to economic constraints or business failure, then it is lawful and just that the
warranty deposit should not be charged against the petitioner.
To charge the petitioner for the refund of a "warranty deposit" which he did not withdraw
as it was not his own account, it having remained with LS Finance, is to even make him
pay an unjust "debt", to say the least, since petitioner did not receive the amount in
question. All the while, said amount was in the safekeeping of the financing company,
which is managed, supervised and operated by the corporation officials and employees
of LS Finance. Petitioner did not even know that the checks he issued were turned over
by Joey Gomez to Mrs. Teng, whose operation was kept from his knowledge on her
instruction. This fact alone evoke suspicion that the transaction is irregular and
immoral per se, hence, she specifically requested Gomez not to divulge the source of
the "warranty deposit".
It is intriguing to realize that Mrs. Teng did not want the petitioner to know that it was
she who "accommodated" petitioner's request for Joey Gomez, to source out the
needed funds for the "warranty deposit". Thus it unfolds the kind of transaction that is
shrouded with mystery, gimmickry and doubtful legality. It is in simple language, a
scheme whereby Mrs. Teng as the supplier of the equipment in the name of her
corporation, Mancor, would be able to "sell or lease" its goods as in this case, and at
the same time, privately financing those who desperately need petty accommodations
as this one. This modus operandi has in so many instances victimized unsuspecting
businessmen, who likewise need protection from the law, by availing of the deceptively
called "warranty deposit" not realizing that they also fall prey to leasing equipment
under the guise of a lease-purchase agreement when it is a scheme designed to skim
off business clients.
This maneuvering has serious implications especially with respect to the threat of the
penal sanction of the law in issue, as in this case. And, with a willing court system to
apply the full harshness of the special law in question, using the "mala prohibitia"
doctrine, the noble objective of the law is tainted with materialism and opportunism in
the highest, degree.
This angle is bolstered by the fact that since the petitioner or lessee referred to above
in the lease agreement knew that the amount of P29,790.00 subject of the cases, were
mere accommodation-arrangements with somebody thru Joey Gomez, petitioner did
not even attempt to secure the refund of said amount from LS Finance, notwithstanding
the agreement provision to the contrary. To argue that after the termination of the lease
agreement, the warranty deposit should be refundable in full to Mrs. Teng by petitioner
when he did not cash out the "warranty deposit" for his official or personal use, is to
stretch the nicety of the alleged law (B.P. No, 22) violated.
14
For all intents and purposes, the law was devised to safeguard the interest of the
banking system and the legitimate public checking account user. It did not intend to
shelter or favor nor encourage users of the system to enrich themselves through
manipulations and circumvention of the noble purpose and objective of the law. Least
should it be used also as a means of jeopardizing honest-to-goodness transactions with
some color of "get-rich" scheme to the prejudice of well-meaning businessmen who are
the pillars of society.
Under the utilitarian theory, the "protective theory" in criminal law, "affirms that the
primary function of punishment is the protective (sic) of society against actual and
potential wrongdoers." It is not clear whether petitioner could be considered as having
actually committed the wrong sought to be punished in the offense charged, but on the
other hand, it can be safely said that the actuations of Mrs. Carolina Teng amount to
that of potential wrongdoers whose operations should also be clipped at some point in
time in order that the unwary public will not be failing prey to such a vicious transaction
(Aquino, The Revised Penal Code, 1987 Edition, Vol. I, P. 11)
Corollary to the above view, is the application of the theory that "criminal law is founded
upon that moral disapprobation . . . of actions which are immoral, i.e., which are
detrimental (or dangerous) to those conditions upon which depend the existence and
progress of human society. This disappropriation is inevitable to the extent that morality
is generally founded and built upon a certain concurrence in the moral opinions of all. .
. . That which we call punishment is only an external means of emphasizing moral
disapprobation the method of punishment is in reality the amount of punishment," (Ibid.,
P. 11, citing People v. Roldan Zaballero, CA 54 O.G. 6904, Note also Justice Pablo's
view in People v. Piosca and Peremne, 86 Phil. 31).
Thus, it behooves upon a court of law that in applying the punishment imposed upon
the accused, the objective of retribution of a wronged society, should be directed
against the "actual and potential wrongdoers." In the instant case, there is no doubt that
petitioner's four (4) checks were used to collateralize an accommodation, and not to
cover the receipt of an actual "account or credit for value" as this was absent, and
therefore petitioner should not be punished for mere issuance of the checks in question.
Following the aforecited theory, in petitioner's stead the "potential wrongdoer", whose
operation could be a menace to society, should not be glorified by convicting the
petitioner.
While in case of doubt, the case should have been resolved in favor of the accused,
however, by the open admission of the appellate court below, oven when the ultimate
beneficiary of the "warranty deposit" is of doubtful certainty, the accused was convicted,
as shown below:
Nor do We see any merit in appellant's claim that the obligation of the accused to
complainant had been extinguished by the termination of the leasing agreement — by
the terms of which the warranty deposit advanced by complainant was refundable to
the accused as lessee — and that as the lessor L.S. Finance neither made any
liquidation of said amount nor returned the same to the accused, it may he assumed
that the amount was already returned to the complainant. For these allegations, even
 15

if true, do not change the fact, admitted by appellant and established by the evidence, Fitness for Particular Purpose: —
that the four checks were originally issued on account or for value. And as We have
already observed, in order that there may be a conviction under the from paragraph of Where the seller at the time of contracting has reason to know any particular purpose
Section 2 of B.P. Blg 22 — with respect to the element of said offense that the check for which the goods are required and that the buyer is relying on the seller's skill or
should have been made and issued on account or for value — it is sufficient, all the judgment to select or furnish suitable goods, there is, unless excluded or modified, an
other elements of the offense being present, that the check must have been drawn and implied warranty that the goods shall be fit for such purpose, (Ibid., p. 573)
issued in payment of an obligation.
b) Deposit: — Money lodged with a person as an earnest or security for the
Moreover, even granting, arguendo, that the extinguishment, after the issuance of the performance of some contract, to be forfeited if the depositor fails in his undertaking. It
checks, of the obligation in consideration of which the checks were issued, would have may be deemed to be part payment and to that extent may constitute the purchaser the
resulted in placing the case at bar beyond the purview of the prohibition in Section 1 of actual owner of the estate.
BP Blg. 22, there is no satisfactory proof that there was such an extinguishment in the
To commit to custody, or to lay down; to place; to put. To lodge for safe- keeping or as
present case. Appellee aptly points out that appellant had not adduced any direct
a pledge to intrust to the care of another.
evidence to prove that the amount advanced by the complainant to cover the warranty
deposit must already have been returned to her. (Rollo, p. 30) The act of placing money in the custody of a bank or banker, for safety or convenience,
to be withdrawn at the will of the depositor or under rules and regulations agreed on.
It is indubitable that the respondent Court of Appeals even disregarded the cardinal rule
Also, the money so deposited, or the credit which the depositor receives for it. Deposit,
that the accused is presumed innocent until proven guilty beyond reasonable doubt.
according to its commonly accepted and generally understood among bankers and by
On the contrary, the same court even expected the petitioner-appellant to adduce
the public, includes not only deposits payable on demand and for which certificates,
evidence to show that he was not guilty of the crime charged. But how can be produce
whether interest-bearing or not, may be issued, payable on demand, or on certain
documents showing that the warranty deposit has already been taken back by Mrs.
notice or at a fixed future time. (Ibid., pp. 394-395)
Teng when she is an officer of Mancor which has interest in the transaction, besides
being personally interested in the profit of her side-line. Thus, even if she may have Furthermore, the element of "knowing at the time of issue that he does not have
gotten back the value of the accommodation, she would still pursue collecting from the sufficient funds in or credit with the drawee bank for the payment of such check in full
petitioner since she had in her possession the checks that "bounced". upon its presentment, which check is subsequently dishonored by the drawee bank for
insufficiency of funds or credit or would have been dishonored for the same reason . .
That the court a quo merely relied on the law, without looking into the real nature of the
. is inversely applied in this case. From the very beginning, petitioner never hid the fact
warranty deposit is evident from the following pronouncement:
that he did not have the funds with which to put up the warranty deposit and as a matter
And the trail court concluded that there is no question that the accused violated BP Blg. of fact, he openly intimated this to the vital conduit of the transaction, Joey Gomez, to
22, which is a special statutory law, violations of which are mala prohibita. The court whom petitioner was introduced by Mrs. Teng. It would have been different if this
relied on the rule that in cases of mala prohibita, the only inquiry is whether or not the predicament was not communicated to all the parties he dealt with regarding the lease
law had been violated, proof of criminal intent not being necessary for the conviction of agreement the financing of which was covered by L.S. Finance Management.
the accused, the acts being prohibited for reasons of public policy and the defenses of
WHEREFORE, the appealed decision is REVERSED and the accused-petitioner is
good faith and absence of criminal intent being unavailing in prosecutions for said
hereby ACQUITTED of the crime charged.
offenses." (Ibid., p. 26)
SO ORDERED.
The crux of the matter rests upon the reason for the drawing of the postdated checks
by the petitioner, i.e., whether they were drawn or issued "to apply on account or for
value", as required under Section 1 of B.P. Blg, 22. When viewed against the following
definitions of the catch-terms "warranty" and "deposit", for which the postdated checks
were issued or drawn, all the more, the alleged crime could not have been committed
by petitioner:

a) Warranty — A promise that a proposition of fact is true. A promise that certain facts
are truly as they are represented to be and that they will remain so: . . . (Black's Law
Dictionary, Fifth Edition, (1979) p. 1423)

A cross-reference to the following term shows:


G.R. No. L-63419 December 18, 1986
FLORENTINA A. LOZANO, petitioner,
vs.
THE HONORABLE ANTONIO M. MARTINEZ, in his capacity as Presiding Judge,
Regional Trial Court, National Capital Judicial Region, Branch XX, Manila, and
the HONORABLE JOSE B. FLAMINIANO, in his capacity as City Fiscal of
Manila, respondents.
The constitutionality of Batas Pambansa Bilang 22 (BP 22 for short), popularly known
as the Bouncing Check Law, which was approved on April 3, 1979, is the sole issue
presented by these petitions for decision. The question is definitely one of first
impression in our jurisdiction.
These petitions arose from cases involving prosecution of offenses under the statute.
The defendants in those cases moved seasonably to quash the informations on the
ground that the acts charged did not constitute an offense, the statute being
unconstitutional. The motions were denied by the respondent trial courts, except in one
case, which is the subject of G. R. No. 75789, wherein the trial court declared the law
unconstitutional and dismissed the case. The parties adversely affected have come to
us for relief.
As a threshold issue the former Solicitor General in his comment on the petitions,
maintained the posture that it was premature for the accused to elevate to this Court
the orders denying their motions to quash, these orders being interlocutory. While this
is correct as a general rule, we have in justifiable cases intervened to review the lower
court's denial of a motion to quash. 1 In view of the importance of the issue involved
here, there is no doubt in our mind that the instant petitions should be entertained and
the constitutional challenge to BP 22 resolved promptly, one way or the other, in order
to put to rest the doubts and uncertainty that exist in legal and judicial circles and the
general public which have unnecessarily caused a delay in the disposition of cases
involving the enforcement of the statute.
For the purpose of resolving the constitutional issue presented here, we do not find it
necessary to delve into the specifics of the informations involved in the cases which are
the subject of the petitions before us. 2 The language of BP 22 is broad enough to cover
all kinds of checks, whether present dated or postdated, or whether issued in payment
of pre-existing obligations or given in mutual or simultaneous exchange for something
of value.
I involving fraud and deceit. The focus of these penal provisions is on the damage
BP 22 punishes a person "who makes or draws and issues any check on account or
for value, knowing at the time of issue that he does not have sufficient funds in or credit
with the drawee bank for the payment of said check in full upon presentment, which
check is subsequently dishonored by the drawee bank for insufficiency of funds or credit
or would have been dishonored for the same reason had not the drawer, without any
valid reason, ordered the bank to stop payment." The penalty prescribed for the offense
is imprisonment of not less than 30 days nor more than one year or a fine or not less
16
than the amount of the check nor more than double said amount, but in no case to
exceed P200,000.00, or both such fine and imprisonment at the discretion of the court. 3
The statute likewise imposes the same penalty on "any person who, having sufficient
funds in or credit with the drawee bank when he makes or draws and issues a check,
shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the
check if presented within a period of ninety (90) days from the date appearing thereon,
for which reason it is dishonored by the drawee bank. 4
An essential element of the offense is "knowledge" on the part of the maker or drawer
of the check of the insufficiency of his funds in or credit with the bank to cover the check
upon its presentment. Since this involves a state of mind difficult to establish, the statute
itself creates a prima facie presumption of such knowledge where payment of the check
"is refused by the drawee because of insufficient funds in or credit with such bank when
presented within ninety (90) days from the date of the check. 5 To mitigate the
harshness of the law in its application, the statute provides that such presumption shall
not arise if within five (5) banking days from receipt of the notice of dishonor, the maker
or drawer makes arrangements for payment of the check by the bank or pays the holder
the amount of the check.
Another provision of the statute, also in the nature of a rule of evidence, provides that
the introduction in evidence of the unpaid and dishonored check with the drawee bank's
refusal to pay "stamped or written thereon or attached thereto, giving the reason
therefor, "shall constitute prima facie proof of "the making or issuance of said check,
and the due presentment to the drawee for payment and the dishonor thereof ... for the
reason written, stamped or attached by the drawee on such dishonored check." 6
The presumptions being merely prima facie, it is open to the accused of course to
present proof to the contrary to overcome the said presumptions.
II
BP 22 is aimed at putting a stop to or curbing the practice of issuing checks that are
worthless, i.e. checks that end up being rejected or dishonored for payment. The
practice, as discussed later, is proscribed by the state because of the injury it causes
to t public interests.
Before the enactment of BP 22, provisions already existed in our statute books which
penalize the issuance of bouncing or rubber checks. Criminal law has dealth with the
problem within the context of crimes against property punished as "estafa" or crimes
caused to the property rights of the victim.
The Penal Code of Spain, which was in force in the Philippines from 1887 until it was
replaced by the Revised Penal Code in 1932, contained provisions penalizing, among
others, the act of defrauding another through false pretenses. Art. 335 punished a
person who defrauded another "by falsely pretending to possess any power, influence,
qualification, property, credit, agency or business, or by means of similar deceit."
Although no explicit mention was made therein regarding checks, this provision was

deemed to cover within its ambit the issuance of worthless or bogus checks in
exchange for money. 7
In 1926, an amendment was introduced by the Philippine Legislature, which added a
new clause (paragraph 10) to Article 335 of the old Penal Code, this time referring in
explicit terms to the issuance of worthless checks. The amendment penalized any
person who 1) issues a check in payment of a debt or for other valuable consideration,
knowing at the time of its issuance that he does not have sufficient funds in the bank to
cover its amount, or 2) maliciously signs the check differently from his authentic
signature as registered at the bank in order that the latter would refuse to honor it; or
3) issues a postdated check and, at the date set for its payment, does not have sufficient
deposit to cover the same.8
In 1932, as already adverted to, the old Penal Code was superseded by the Revised
Penal Code. 9 The above provisions, in amended form, were incorporated in Article 315
of the Revised Penal Code defining the crime of estafa. The revised text of the provision
read as follows:
Art. 315. Swindling (estafa).—Any person who shall defraud another by any of the
means mentioned hereinbelow shall be punished by:
xxx xxx xxx
2. By means of any of the following false pretenses or fraudulent acts executed prior to
or simultaneously with the commis sion of the fraud:
(a) By using fictitious name, or falsely pretending to possess power, influence,
qualifications, property, credit, agency, business or imaginary transactions, or by
means of other similar deceits;
xxx xxx xxx
(d) By postdating a check, or issuing a check in payment of an obligation the offender
knowing that at the time he had no funds in the bank, or the funds deposited by him
were not sufficient to cover the amount of the cheek without informing the payee of
such circumstances.
The scope of paragraph 2 (d), however, was deemed to exclude checks issued in
payment of pre-existing obligations. 10 The rationale of this interpretation is that in
estafa, the deceit causing the defraudation must be prior to or simultaneous with the
commission of the fraud. In issuing a check as payment for a pre-existing debt, the
drawer does not derive any material benefit in return or as consideration for its
issuance. On the part of the payee, he had already parted with his money or property
before the check is issued to him hence, he is not defrauded by means of any "prior"
or "simultaneous" deceit perpetrated on him by the drawer of the check.
With the intention of remedying the situation and solving the problem of how to bring
checks issued in payment of pre-existing debts within the ambit of Art. 315, an
amendment was introduced by the Congress of the Philippines in 1967, 11 which was
17
enacted into law as Republic Act No. 4885, revising the aforesaid proviso to read as
follows:
(d) By postdating a check, or issuing a check in payment of an obligation when the
offender had no funds in the bank, or his funds deposited therein were not sufficient to
cover the amount of the check. The failure of the drawer of the check to deposit the
amount necessary to cover his check within three (3) days from receipt of notice from
the bank and/or the payee or holder that said check has been dishonored for lack or
insufficiency of funds shall be puma facie evidence of deceit constituting false pretense
or fraudulent act.
However, the adoption of the amendment did not alter the situation materially. A divided
Court held in People vs. Sabio, Jr. 12 that Article 315, as amended by Republic Act
4885, does not cover checks issued in payment of pre-existing obligations, again
relying on the concept underlying the crime of estafa through false pretenses or
deceit—which is, that the deceit or false pretense must be prior to or simultaneous with
the commission of the fraud.
Since statistically it had been shown that the greater bulk of dishonored checks
consisted of those issued in payment of pre-existing debts, 13 the amended provision
evidently failed to cope with the real problem and to deal effectively with the evil that it
was intended to eliminate or minimize.
With the foregoing factual and legal antecedents as a backdrop, the then Interim
Batasan confronted the problem squarely. It opted to take a bold step and decided to
enact a law dealing with the problem of bouncing or worthless checks, without attaching
the law's umbilical cord to the existing penal provisions on estafa. BP 22 addresses the
problem directly and frontally and makes the act of issuing a worthless check malum
prohibitum. 14
The question now arises: Is B P 22 a valid law?
Previous efforts to deal with the problem of bouncing checks within the ambit of the law
on estafa did not evoke any constitutional challenge. In contrast, BP 22 was challenged
promptly.
Those who question the constitutionality of BP 22 insist that: (1) it offends the
constitutional provision forbidding imprisonment for debt; (2) it impairs freedom of
contract; (3) it contravenes the equal protection clause; (4) it unduly delegates
legislative and executive powers; and (5) its enactment is flawed in that during its
passage the Interim Batasan violated the constitutional provision prohibiting
amendments to a bill on Third Reading.
The constitutional challenge to BP 22 posed by petitioners deserves a searching and
thorough scrutiny and the most deliberate consideration by the Court, involving as it
does the exercise of what has been described as "the highest and most delicate
function which belongs to the judicial department of the government." 15
As we enter upon the task of passing on the validity of an act of a co-equal and
coordinate branch of the government, we need not be reminded of the time-honored

principle, deeply ingrained in our jurisprudence, that a statute is presumed to be valid.
Every presumption must be indulged in favor of its constitutionality. This is not to say
that we approach our task with diffidence or timidity. Where it is clear that the legislature
has overstepped the limits of its authority under the constitution we should not hesitate
to wield the axe and let it fall heavily, as fall it must, on the offending statute.
III
Among the constitutional objections raised against BP 22, the most serious is the
alleged conflict between the statute and the constitutional provision forbidding
imprisonment for debt. It is contended that the statute runs counter to the inhibition in
the Bill of Rights which states, "No person shall be imprisoned for debt or non-payment
of a poll tax." 16 Petitioners insist that, since the offense under BP 22 is consummated
only upon the dishonor or non-payment of the check when it is presented to the drawee
bank, the statute is really a "bad debt law" rather than a "bad check law." What it
punishes is the non-payment of the check, not the act of issuing it. The statute, it is
claimed, is nothing more than a veiled device to coerce payment of a debt under the
threat of penal sanction.
First of all it is essential to grasp the essence and scope of the constitutional inhibition
invoked by petitioners. Viewed in its historical context, the constitutional prohibition
against imprisonment for debt is a safeguard that evolved gradually during the early
part of the nineteenth century in the various states of the American Union as a result of
the people's revulsion at the cruel and inhumane practice, sanctioned by common law,
which permitted creditors to cause the incarceration of debtors who could not pay their
debts. At common law, money judgments arising from actions for the recovery of a debt
or for damages from breach of a contract could be enforced against the person or body
of the debtor by writ of capias ad satisfaciendum. By means of this writ, a debtor could
be seized and imprisoned at the instance of the creditor until he makes the satisfaction
awarded. As a consequence of the popular ground swell against such a barbarous
practice, provisions forbidding imprisonment for debt came to be generally enshrined
in the constitutions of various states of the Union. 17
This humanitarian provision was transported to our shores by the Americans at the turn
of t0he century and embodied in our organic laws. 18 Later, our fundamental law
outlawed not only imprisonment for debt, but also the infamous practice, native to our
shore, of throwing people in jail for non-payment of the cedula or poll tax. 19
The reach and scope of this constitutional safeguard have been the subject of judicial
definition, both by our Supreme Court 20 and by American State courts.21 Mr. Justice
Malcolm speaking for the Supreme Court in Ganaway vs. Queen, 22 stated: "The 'debt'
intended to be covered by the constitutional guaranty has a well-defined meaning.
Organic provisions relieving from imprisonment for debt, were intended to prevent
commitment of debtors to prison for liabilities arising from actions ex contractu The
inhibition was never meant to include damages arising in actions ex delicto, for the
reason that damages recoverable therein do not arise from any contract entered into
between the parties but are imposed upon the defendant for the wrong he has done
18
and are considered as punishment, nor to fines and penalties imposed by the courts in
criminal proceedings as punishments for crime."
The law involved in Ganaway was not a criminal statute but the Code of Procedure in
Civil Actions (1909) which authorized the arrest of the defendant in a civil case on
grounds akin to those which justify the issuance of a writ of attachment under our
present Rules of Court, such as imminent departure of the defendant from the
Philippines with intent to defraud his creditors, or concealment, removal or disposition
of properties in fraud of creditors, etc. The Court, in that case, declared the detention
of the defendant unlawful, being violative of the constitutional inhibition against
imprisonment for debt, and ordered his release. The Court, however, refrained from
declaring the statutory provision in question unconstitutional.
Closer to the case at bar is People v. Vera Reyes,23 wherein a statutory provision which
made illegal and punishable the refusal of an employer to pay, when he can do so, the
salaries of his employees or laborers on the fifteenth or last day of every month or on
Saturday every week, was challenged for being violative of the constitutional prohibition
against imprisonment for debt. The constitutionality of the law in question was upheld
by the Court, it being within the authority of the legislature to enact such a law in the
exercise of the police power. It was held that "one of the purposes of the law is to
suppress possible abuses on the part of the employers who hire laborers or employees
without paying them the salaries agreed upon for their services, thus causing them
financial difficulties. "The law was viewed not as a measure to coerce payment of an
obligation, although obviously such could be its effect, but to banish a practice
considered harmful to public welfare.
IV
Has BP 22 transgressed the constitutional inhibition against imprisonment for debt? To
answer the question, it is necessary to examine what the statute prohibits and punishes
as an offense. Is it the failure of the maker of the check to pay a debt? Or is it the
making and issuance of a worthless check in payment of a debt? What is the gravamen
of the offense? This question lies at the heart of the issue before us.
The gravamen of the offense punished by BP 22 is the act of making and issuing a
worthless check or a check that is dishonored upon its presentation for payment. It is
not the non-payment of an obligation which the law punishes. The law is not intended
or designed to coerce a debtor to pay his debt. The thrust of the law is to prohibit, under
pain of penal sanctions, the making of worthless checks and putting them in circulation.
Because of its deleterious effects on the public interest, the practice is proscribed by
the law. The law punishes the act not as an offense against property, but an offense
against public order.
Admittedly, the distinction may seem at first blush to appear elusive and difficult to
conceptualize. But precisely in the failure to perceive the vital distinction lies the error
of those who challenge the validity of BP 22.
It may be constitutionally impermissible for the legislature to penalize a person for non-
payment of a debt ex contractu But certainly it is within the prerogative of the lawmaking

body to proscribe certain acts deemed pernicious and inimical to public welfare.
Acts mala in se are not the only acts which the law can punish. An act may not be
considered by society as inherently wrong, hence, not malum in se but because of the
harm that it inflicts on the community, it can be outlawed and criminally punished
as malum prohibitum. The state can do this in the exercise of its police power.
The police power of the state has been described as "the most essential, insistent and
illimitable of powers" which enables it to prohibit all things hurtful to the comfort, safety
and welfare of society. 24 It is a power not emanating from or conferred by the
constitution, but inherent in the state, plenary, "suitably vague and far from precisely
defined, rooted in the conception that man in organizing the state and imposing upon
the government limitations to safeguard constitutional rights did not intend thereby to
enable individual citizens or group of citizens to obstruct unreasonably the enactment
of such salutary measures to ensure communal peace, safety, good order and
welfare." 25
The enactment of BP 22 is a declaration by the legislature that, as a matter of public
policy, the making and issuance of a worthless check is deemed public nuisance to be
abated by the imposition of penal sanctions.
It is not for us to question the wisdom or impolicy of the statute. It is sufficient that a
reasonable nexus exists between means and end. Considering the factual and legal
antecedents that led to the adoption of the statute, it is not difficult to understand the
public concern which prompted its enactment. It had been reported that the
approximate value of bouncing checks per day was close to 200 million pesos, and
thereafter when overdrafts were banned by the Central Bank, it averaged between 50
minion to 80 million pesos a day. 26
By definition, a check is a bill of exchange drawn on a bank and payable on
demand. 27 It is a written order on a bank, purporting to be drawn against a deposit of
funds for the payment of all events, of a sum of money to a certain person therein
named or to his order or to cash and payable on demand. 28 Unlike a promissory note,
a check is not a mere undertaking to pay an amount of money. It is an order addressed
to a bank and partakes of a representation that the drawer has funds on deposit against
which the check is drawn, sufficient to ensure payment upon its presentation to the
bank. There is therefore an element of certainty or assurance that the instrument wig
be paid upon presentation. For this reason, checks have become widely accepted as a
medium of payment in trade and commerce. Although not legal tender, checks have
come to be perceived as convenient substitutes for currency in commercial and
financial transactions. The basis or foundation of such perception is confidence. If such
confidence is shakes the usefulness of checks as currency substitutes would be greatly
diminished or may become nit Any practice therefore tending to destroy that confidence
should be deterred for the proliferation of worthless checks can only create havoc in
trade circles and the banking community.
Recent statistics of the Central Bank show that one-third of the entire money supply of
the country, roughly totalling P32.3 billion, consists of peso demand deposits; the
remaining two. 29 These de deposit thirds consists of currency in circulation. ma
19
deposits in the banks constitute the funds against which among others, commercial
papers like checks, are drawn. The magnitude of the amount involved amply justifies
the legitimate concern of the state in preserving the integrity of the banking system.
Flooding the system with worthless checks is like pouring garbage into the bloodstream
of the nation's economy.
The effects of the issuance of a worthless check transcends the private interests of the
parties directly involved in the transaction and touches the interests of the community
at large. The mischief it creates is not only a wrong to the payee or holder, but also an
injury to the public. The harmful practice of putting valueless commercial papers in
circulation, multiplied a thousand fold, can very wen pollute the channels of trade and
commerce, injure the banking system and eventually hurt the welfare of society and the
public interest. As aptly stated — 30
The 'check flasher' does a great deal more than contract a debt; he shakes the pillars
of business; and to my mind, it is a mistaken charity of judgment to place him in the
same category with the honest man who is unable to pay his debts, and for whom the
constitutional inhibition against' imprisonment for debt, except in cases of fraud was
intended as a shield and not a sword.
In sum, we find the enactment of BP 22 a valid exercise of the police power and is not
repugnant to the constitutional inhibition against imprisonment for debt.
This Court is not unaware of the conflicting jurisprudence obtaining in the various states
of the United States on the constitutionality of the "worthless check" acts. 31 It is
needless to warn that foreign jurisprudence must be taken with abundant caution.
A caveat to be observed is that substantial differences exist between our statute and
the worthless check acts of those states where the jurisprudence have evolved. One
thing to remember is that BP 22 was not lifted bodily from any existing statute.
Furthermore, we have to consider that judicial decisions must be read in the context of
the facts and the law involved and, in a broader sense, of the social economic and
political environment—in short, the milieu—under which they were made. We recognize
the wisdom of the old saying that what is sauce for the goose may not be sauce for the
gander.
As stated elsewhere, police power is a dynamic force that enables the state to meet
the exigencies of changing times. There are occasions when the police power of the
state may even override a constitutional guaranty. For example, there have been cases
wherein we held that the constitutional provision on non-impairment of contracts must
yield to the police power of the state. 32 Whether the police power may override the
constitutional inhibition against imprisonment for debt is an issue we do not have to
address. This bridge has not been reached, so there is no occasion to cross it.
We hold that BP 22 does not conflict with the constitutional inhibition against
imprisonment for debt.
V

We need not detain ourselves lengthily in the examination of the other constitutional
objections raised by petitioners, some of which are rather flimsy.
We find no valid ground to sustain the contention that BP 22 impairs freedom of
contract. The freedom of contract which is constitutionally protected is freedom to enter
into "lawful" contracts. Contracts which contravene public policy are not
lawful. 33 Besides, we must bear in mind that checks can not be categorized as mere
contracts. It is a commercial instrument which, in this modem day and age, has become
a convenient substitute for money; it forms part of the banking system and therefore
not entirely free from the regulatory power of the state.
Neither do we find substance in the claim that the statute in question denies equal
protection of the laws or is discriminatory, since it penalizes the drawer of the check,
but not the payee. It is contended that the payee is just as responsible for the crime as
the drawer of the check, since without the indispensable participation of the payee by
his acceptance of the check there would be no crime. This argument is tantamount to
saying that, to give equal protection, the law should punish both the swindler and the
swindled. The petitioners' posture ignores the well-accepted meaning of the clause
"equal protection of the laws." The clause does not preclude classification of individuals,
who may be accorded different treatment under the law as long as the classification is
no unreasonable or arbitrary. 34
It is also suggested that BP 22 constitutes undue or improper delegation of legislative
powers, on the theory that the offense is not completed by the sole act of the maker or
drawer but is made to depend on the will of the payee. If the payee does not present
the check to the bank for payment but instead keeps it, there would be no crime. The
logic of the argument stretches to absurdity the meaning of "delegation of legislative
power." What cannot be delegated is the power to legislate, or the power to make
laws. 35 which means, as applied to the present case, the power to define the offense
sought to be punished and to prescribe the penalty. By no stretch of logic or imagination
can it be said that the power to define the crime and prescribe the penalty therefor has
been in any manner delegated to the payee. Neither is there any provision in the statute
that can be construed, no matter how remotely, as undue delegation of executive
power. The suggestion that the statute unlawfully delegates its enforcement to the
offended party is farfetched.
Lastly, the objection has been raised that Section 9 (2) of Article VII of the 1973
Constitution was violated by the legislative body when it enacted BP 22 into law. This
constitutional provision prohibits the introduction of amendments to a bill during the
Third Reading. It is claimed that during its Third Reading, the bill which eventually
became BP 22 was amended in that the text of the second paragraph of Section 1 of
the bill as adopted on Second Reading was altered or changed in the printed text of the
bill submitted for approval on Third Reading.
A careful review of the record of the proceedings of the Interim Batasan on this matter
shows that, indeed, there was some confusion among Batasan Members on what was
the exact text of the paragraph in question which the body approved on Second
Reading. 36 Part of the confusion was due apparently to the fact that during the
20
deliberations on Second Reading (the amendment period), amendments were
proposed orally and approved by the body or accepted by the sponsor, hence, some
members might not have gotten the complete text of the provisions of the bill as
amended and approved on Second Reading. However, it is clear from the records that
the text of the second paragraph of Section 1 of BP 22 is the text which was actually
approved by the body on Second Reading on February 7, 1979, as reflected in the
approved Minutes for that day. In any event, before the bin was submitted for final
approval on Third Reading, the Interim Batasan created a Special Committee to
investigate the matter, and the Committee in its report, which was approved by the
entire body on March 22, 1979, stated that "the clause in question was ... an authorized
amendment of the bill and the printed copy thereof reflects accurately the provision in
question as approved on Second Reading. 37 We therefore, find no merit in the
petitioners' claim that in the enactment of BP 22 the provisions of Section 9 (2) of Article
VIII of the 1973 Constitution were violated.
WHEREFORE, judgment is rendered granting the petition in G.R. No. 75789 and
setting aside the order of the respondent Judge dated August 19, 1986. The petitions
in G.R. Nos. 63419, 66839-42, 71654, 74524-25, 75122-49, 75812-13 and 75765-67
are hereby dismissed and the temporary restraining order issued in G.R. Nos. 74524-
25 is lifted. With costs against private petitioners.
SO ORDERED.
G.R. No. 108738 June 17, 1994
ROBERTO CRUZ, petitioner,
vs.
COURT OF APPEALS, PEOPLE OF THE PHILIPPINES, respondents.
The sole issue to be resolved in the instant petition is whether or not petitioner is liable
for violation of Batas Pambansa Bilang 22 for issuing a check knowing he does not
have credit with drawee bank and thereafter claiming that the said check was not
intended for circulation and negotiation, the same having been issued only to serve as
mere evidence or memorandum of indebtedness.
The relevant antecedents are as follows, viz:
Complaining witness Andrea Mayor is a businesswoman engaged, among others, in
granting interest-bearing loans and in rediscounting checks. 1 Sometime in 1987, she
was introduced to herein petitioner, Roberto Cruz who at that time was engaged in the
business of selling ready-to-wear clothes at the Pasay Commercial Center. 2 From then
on, petitioner has been borrowing money from Mayor. 3 On March 15, 1989, petitioner
borrowed from Andrea Mayor one hundred seventy six thousand pesos
(P176,000.00). 4 On April 6, 1989, Mayor delivered the said amount to petitioner himself
in the latter’s stall at the Pasay Commercial Center. Cruz, in turn, issued Premiere Bank
Check No. 057848 postdated April 20, 1989 for same amount. 5 When the check
matured, complaining witness presented it to the drawee bank for payment but the

same was dishonored and returned for reason "account closed." When notified of the
dishonor, petitioner promised to pay his obligation in cash. No payment was made,
hence, an information for violation of Batas Pambansa Bilang 22 was filed against the
petitioner. 6
Upon arraignment, petitioner entered a plea of not guilty. 7
8 doubt of the offense charged in the information, and conformably with the penal
At the pre-trial, petitioner admitted the existence of the check.
During trial, the prosecution presented two (2) witnesses, Andrea Mayor, herein
complainant, and Marcelo Ladao, a representative of Premiere Development Bank.
Andrea Mayor testified that she is a businesswoman engaged in the business, among
others, of rediscounting checks and lending money at an interest of 3% to 5% monthly;
that she came to know the accused Roberto Cruz through the latter’s sisters sometime
in 1987; that the accused is engaged in the RTW business at the Pasay Commercial
Center; that she rediscounted some of the checks of the accused in previous
transactions as shown by Exhibits "C," "C-1" to "C-3," in the amounts of P20,000.00,
P5,000.00, P9,000.00, and P5,000.00 respectively, which were personal checks issued
by the accused for the sums he borrowed and which checks bounced when presented
for payment but were paid in cash by the accused when the latter was notified of the
dishonor. 9
Complaining witness Andrea Mayor further testified that on March 15, 1989, accused
told her that he needed P176,000.00 and asked to be lent the said amount; that
complainant gave the accused the said amount at the latter’s store at the Pasay City
Commercial Center; that accused, in turn, issued a check 10 for the same amount; that
the check was signed in her presence and she was told that accused might be able to
pay before the due date on April 20, 1989; that the check was dishonored upon
presentment by the drawee bank; that accused was notified of the dishonor and he
promised to raise the amount on May 15, 1989; that accused failed to make good his
commitment, hence, she consulted a lawyer and caused the preparation of a
complaint. 11
Marcelo Ladao, a representative of Premiere Development Bank, testified that accused
opened Current Account No. 0101-00250-5 on May 15, 1987 and, accordingly, affixed
three (3) signatures on the signature card provided by the bank for account applicants;
that the said account was closed on October 2, 1989 and that accused was duly
advised of the said closure by the Branch Manager of the Pasay City Branch. Ladao,
likewise, identified the stamp marked on the face of the check in question, which stamp
indicated that the account of the depositor is already closed. 12 On cross-examination,
the same witness explained that the subject account was closed at the discretion of the
branch manager and that closure is normally a result of a series of checks issued
without sufficient funds. 13
The accused testified in his defense and proffered the defense of denial. He denied (a)
having issued the subject check; (b) the signature "R. Cruz" appearing thereon as his;
and (c) knowing complainant Andrea Mayor and existence of previous transactions with
her. 14 He declared that he saw the check in question for the first time only on January
21
16, 1991 when it was showed to him by the fiscal and that he never met Andrea Mayor
before. 15 He admitted, however, opening Current Account No. 0101-00250-37 with
Premiere Development Bank. 16
The trial court rejected accused’s defense and rendered judgment as follows, to wit:
IN VIEW OF THE FOREGOING, accused is hereby found guilty beyond reasonable
provision of Batas Pambansa Blg. 22, accused is hereby sentenced to suffer the
straight penalty of one (1) year imprisonment and to indemnify the offended party in the
amount of P176,000.00, Philippine Currency. With costs. 17
Aggrieved by the ruling, petitioner appealed the case to the Court of Appeals.
On January 26, 1993, the Court of Appeals rendered judgment affirming the trial court’s
decision. 18
Now petitioner comes to this Court by way of a petition for review on certiorari seeking
the reversal of the respondent court’s decision. Petitioner cites the following for
allowance of his petition, viz:
A. Respondent Court Committed Reversible Error and Grave Abuse Of Discretion
Amounting To Lack Or Excess Of Jurisdiction in Affirming The Finding of The Trial
Court On The Basis Of Surmises, Conjectures and Unfounded Conclusions.
xxx xxx xxx
B. Respondent Court Gravely Erred In Holding The Petitioner Liable Under BP No. 22,
Despite Knowledge of the Complaining Witness That The Account Had Long been
Closed.
xxx xxx xxx
C. Respondent Court Gravely Erred In Holding That The "Complete Turnabout" of the
Petitioner, As Claimed By The Solicitor General, Rendered Petitioner’s Appeal Devoid
of Merit.
xxx xxx xxx 19
Petitioner, in this case, cannot seem to make up his mind. First, he denies having
issued the questioned check, then, he claims that when he issued the same, it was
more in the nature of a memorandum of indebtedness and, as such, does not fall within
the purview of Batas Pambansa Blg. 22.
However, the issuance of the check subject of the present case is no longer at issue
since the petitioner himself, on appeal to the respondent court, admitted having issued
the check after he received the amount of P176,000.00 from the complaining witness.
Therefore, the only issue in the case at bench is whether or not petitioner can be
convicted for violation of B.P. 22.
We answer in the affirmative.

A check issued as an evidence of debt, though not intended to be presented for
payment has the same effect of an ordinary check, 20 hence, falls within the ambit of
B.P. 22 which merely provides that "any person who makes or draws and issues any
check to apply for an account or for value, knowing at the time of issue that he does
not have sufficient funds in or credit with the drawee bank . . . which check is
subsequently dishonored by the drawee bank for insufficiency of funds on credit . . .
shall be punished by imprisonment
. . ." 21
When a check is presented for payment, the drawee bank will generally accept the
same regardless of whether it was issued in payment of an obligation or merely to
guarantee the said obligation. What the law punishes is the issuance of a bouncing
check 22 not the purpose for which it was issued nor the term and conditions relating to
its issuance. The mere act of issuing a worthless check is malum prohibitum. 23 This
point has been made clear by this Court, thus:
It is now settled that Batas Pambansa Bilang 22 applies even in cases where
dishonored checks are issued merely in the form of a deposit or a guarantee. The
enactment in question does not make any distinction as to whether the checks within
its contemplation are issued in payment of an obligation or merely to guarantee the said
obligation. In accordance with the pertinent rule of statutory construction, inasmuch as
the law has not made any distinction in this regard, no such distinction can be made by
means of interpretation or application. Furthermore, the history of the enactment of
subject statute evinces the definite legislative intent to make the prohibition all-
embracing, without making any exception from the operation thereof in favor of a
guarantee. This intent may be gathered from the statement of the sponsor of the bill
(Cabinet Bill No. 9) which was enacted later into Batas Pambansa Bilang 22, when it
was introduced before the Batasan Pambansa, that the bill was introduced to
discourage the issuance of bouncing checks, to prevent checks from becoming
"useless scraps of paper" and to restore respectability to checks, all without distinction
as to the purpose of the issuance of the checks,. The legislative intent as above said is
made all the more clear when it is considered that while the original text of Cabinet Bill
No. 9, supra, had contained a proviso excluding from the coverage of the law a check
issued as a mere guarantee, the final version of the bill as approved and enacted by
the Committee on the Revision of Laws in the Batasan deleted the abovementioned
qualifying proviso deliberately for the purpose of making the enforcement of the act
more effective (Batasan Record, First Regular Session, December 4, 1978, Volume II,
pp.
1035-1036).
Consequently, what are important are the facts that the accused had deliberately issued
the checks in question to cover accounts and that the checks in question to cover
accounts and that the checks were dishonored upon presentment regardless of
whether or not the accused merely issued the checks as a guarantee. (pp. 4-5, Dec.
IAC) [pp. 37-38, Rollo]. 24
The importance of arresting the proliferation of worthless checks need not be
underscored. The mischief created by unfunded checks in circulation is injurious not
22
only to the payee or holder, but to the public as well. This harmful practice "can very
well pollute the channels of trade and commerce, injure the banking system and
eventually hurt the welfare of society and the public interest." 25
Petitioner likewise opines that the payee, herein complaining witness, was aware of the
fact that his account with Premiere Development Bank was closed. He claims that the
payee’s knowledge verily supports his contention that he did not intend to put the said
check in circulation much less ensure its payment upon presentment.
Knowledge of the payee of the insufficiency or lack of funds of the drawer with the
drawee bank is immaterial as deceit is not an essential element of an offense penalized
by B.P. 22. As already aforestated, the gravamen of the offense is the issuance of a
bad check, 26 hence, malice and intent in the issuance thereof are inconsequential.
Moreover, the fact that the check issued is restricted is likewise of no moment. Cross
checks or restricted checks are negotiable instruments within the coverage of B.P. 22.
Petitioner, on appeal, changed his theory from complete denial that he issued the
questioned check to an admission of its issuance without intent to circulate or negotiate
it. Such a change of theory however, cannot be allowed. When a party adopts a certain
theory, and the case is tried and decided upon that theory in the court below, he will
not be permitted to change his theory on appeal for to permit him to do so would not
only be unfair to the other party but it would also be offensive to the basic rules of fair
play, justice and due process. 27
Finally, the issue raised primarily involves a question of fact. Our jurisdiction in cases
brought to us from the Court of Appeals is limited to reviewing the errors of law imputed
to the latter, its findings of fact being conclusive. Therefore, barring any showing that
the findings complained of are totally devoid of support in the record, such findings must
stand. 28 After a careful consideration of the records, we sustain the conclusion of the
respondent court.
WHEREFORE, premises considered, the instant petition is DISMISSED and the
questioned decision of the respondent court is hereby AFFIRMED en toto. Costs
against the petitioner.
SO ORDERED.
 23

G.R. No. 139292 December 5, 2000 dishonor, the accused failed to pay said payee the face amount of said check or to
make arrangement for full payment thereof within five (5) banking days after receiving
JOSEPHINE DOMAGSANG, petitioner, notice.
vs.
THE HONORABLE COURT OF APPEALS and PEOPLE OF THE "CONTRARY TO LAW."2
PHILIPPINES, respondents.
Subsequent Informations, docketed Criminal Cases No. 92-4466 to No. 92-4482,
Petitioner was convicted by the Regional Trial Court of Makati, Branch 63, of having inclusive, similarly worded as in Criminal Case No. 92-4465 except as to the dates, the
violated Batas Pambansa ("B.P.") Blg. 22 (Anti-Bouncing Check Law), on eighteen (18) number, and the amounts of the checks hereunder itemized -
counts, and sentenced to "suffer the penalty of One (1) Year imprisonment for each
count (eighteen [18] counts)." Petitioner was likewise "ordered to pay the private "Check Number Dated/Postdated Amount

complainant the amount of P573,800.00."1 The judgment, when appealed to the Court
of Appeals (CA-G.R. CR No. 18497), was affirmed in toto by the appellate court.

It would appear that petitioner approached complainant Ignacio Garcia, an Assistant TRB – No. 161181 July 18, 1991 P6,000.00
Vice President of METROBANK, to ask for financial assistance. Garcia accommodated
petitioner and gave the latter a loan in the sum of P573,800.00. In exchange, petitioner TRB – No. 149906 July 24, 1991 3,000.00
issued and delivered to the complainant 18 postdated checks for the repayment of the
loan. When the checks were, in time, deposited, the instruments were all dishonored No. 182074 July 30, 1991 29,700.00
by the drawee bank for this reason: "Account closed." The complainant demanded
payment allegedly by calling up petitioner at her office. Failing to receive any payment No. 182084 August 30, 1991 9,300.00
for the value of the dishonored checks, the complainant referred the matter to his lawyer
who supposedly wrote petitioner a letter of demand but that the latter ignored the No. 182078 September 15, 1991 6,000.00

demand.
No. 161183 September 18, 1991 6,000.00
On 08 May 1992, Criminal Case No. 92-4465 was lodged against petitioner before the
Regional Trial Court ("RTC") of Makati. The Information read: No. 161177 September 18, 1991 100,000.00

"That on or about the 24th day of June, 1991, in the Municipality of Makati, Metro No. 182085 September 30, 1991 9,000.00
Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, did then and there willfully, unlawfully and feloniously make out, draw No. 182079 October 15, 1991 6,000.00
and issue to complainant Ignacio H. Garcia, Jr., to apply on account or for value the
dated check/described below: No. 182086 October 30, 1991 10,500.00

"Check No. : 149900

No. 182080 November 15, 1991 6,000.00

Drawn Against : Traders Royal Bank

No. 182087 November 30, 1991 11,400.00

In the Amount of : P50,000.00

No. 182081 December 15, 1991 6,000.00

Dated/Postdated : June 24, 1991

No. 182082 December 15, 1991 100,000.00

Payable to : Ignacio H. Garcia, Jr.

No. 182088 December 30, 1991 12,000.00

"said accused well knowing that at the time of issue thereof, she did not have sufficient
No. 182089 December 30, 1991 100,000.00
funds in or credit with the drawee bank for the payment in full of the face amount of
such check upon its presentment, which check when presented for payment within No. 182090 December 30, 1991 100,000.00" 3

ninety (90) days from the date thereof was subsequently dishonored by the drawee
bank for the reason `ACCOUNT CLOSED' and despite receipt of notice of such

were also filed against petitioner. The cases were later consolidated and jointly tried
following the "not guilty" plea of petitioner when arraigned on 02 November 1992.
On 07 September 1993, petitioner filed a demurrer to the evidence, with leave of court,
premised on the absence of a demand letter and that the checks were not issued as
payment but as evidence of indebtedness of petitioner or as collaterals of the loans
obtained by petitioner. Opposed by the prosecution, the demurrer was denied by the
trial court.1âwphi1 In the hearing of 17 February 1994, petitioner, through counsel,
waived her right to present evidence in her defense. Relying solely then on the evidence
submitted by the prosecution, the lower court rendered judgment convicting petitioner.
The decision, as heretofore stated, was affirmed by the Court of Appeals in its decision
of 15 February 1999. Reconsideration was also denied in the resolution, dated 09 July
1999, of the appellate court.
Hence, the instant petition where petitioner raised the following issues for resolution by
the Court -
"1. Whether or not an alleged verbal demand to pay sufficient to convict herein
petitioner for the crime of violation of B.P. Blg. 22;
"2. Whether or not the Honorable Court of Appeals committed reversible error when it
affirmed the judgment of conviction rendered by the trial court, on the ground that a
written notice of dishonor is not necessary in a prosecution for violation of B.P. Blg. 22,
contrary to the pronouncement of the Supreme Court in the case of Lao vs. Court of
Appeals, 274 SCRA 572; (and)
"3. Whether or not the Honorable Court of Appeals erred in considering the alleged
written demand letter, despite failure of the prosecution to formally offer the same." 4
The pertinent provisions of B.P. Blg. 22 "Bouncing Checks Law," provide:
"SECTION 1. Checks without sufficient funds. – Any person who makes or draws and
issues any check to apply on account or for value, knowing at the time of issue that he
does not have sufficient funds in or credit with the drawee bank for the payment of such
check in full upon its presentment, which check is subsequently dishonored by the
drawee bank for insufficiency of funds or credit or would have been dishonored for the
same reason had not the drawer, without any valid reason, ordered the bank to stop
payment, shall be punished by imprisonment of not less than thirty days but not more
than one (1) year or by fine of not less than but not more than double the amount of the
check which fine shall in no case exceed Two Hundred Thousand pesos, or both such
fine and imprisonment at the discretion of the court.
"The same penalty shall be imposed upon any person who having sufficient funds in or
credit with the drawee bank when he makes or draws and issues a check, shall fail to
keep sufficient funds or to maintain a credit to cover the full amount of the check if
presented within a period of ninety (90) days from the date appearing thereon, for which
reason it is dishonored by the drawee bank.
"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.
24
"SEC. 2. Evidence of knowledge of insufficient funds. – The making, drawing and
issuance of a check payment of which is refused by the drawee because of insufficient
funds in or credit with such bank, when presented within ninety (90) days from the date
of the check, shall be prima facie evidence of knowledge of such insufficiency of funds
or credit unless such maker or drawer pays the holder thereof the amount due thereon,
or makes arrangements for payment in full by the drawee of such check within five (5)
banking days after receiving notice that such check has not been paid by the drawee.
"SEC. 3. Duty of drawee; rules of evidence. – It shall be the duty of the drawee of any
check, when refusing to pay the same to the holder thereof upon presentment, to cause
to be written, printed or stamped in plain language thereon, or attached thereto, the
reason for drawee's dishonor or refusal to pay the same: Provided, That where there
are no sufficient funds in or credit with such drawee bank, such fact shall always be
explicitly stated in the notice of dishonor or refusal. In all prosecutions under this Act,
the introduction in evidence of any unpaid and dishonored check, having the drawee's
refusal to pay stamped or written thereon, or attached thereto, with the reason therefor
as aforesaid, shall be prima facie evidence of the making or issuance of said check,
and the due presentment to the drawee for payment and the dishonor thereof, and that
the same was properly dishonored for the reason written, stamped or attached by the
drawee on such dishonored check.
"Notwithstanding receipt of an order to stop payment, the drawee shall state in the
notice that there were no sufficient funds in or credit with such bank for the payment in
full of such check, if such be the fact."5 (Underscoring supplied.)
The law enumerates the elements of the crime to be (1) the making, drawing and
issuance of any check to apply for account or for value; (2) the knowledge of the maker,
drawer, or issuer that at the time of issue he does not have sufficient funds in or credit
with the drawee bank for the payment of the check in full upon its presentment; and (3)
the subsequent dishonor of the check by the drawee bank for insufficiency of funds or
credit or dishonor for the same reason had not the drawer, without any valid cause,
ordered the bank to stop payment.6
There is deemed to be a prima facie evidence of knowledge on the part of the maker,
drawer or issuer of insufficiency of funds in or credit with the drawee bank of the check
issued if the dishonored check is presented within 90 days from the date of the check
and the maker or drawer fails to pay thereon or to make arrangement with the drawee
bank for that purpose. The statute has created the prima facie presumption evidently
because "knowledge" which involves a state of mind would be difficult to establish. 7 The
presumption does not hold, however, when the maker, drawer or issuer of the check
pays the holder thereof the amount due thereon or makes arrangement for payment in
full by the drawee bank of such check within 5 banking days after receiving notice
that such check has not been paid by the drawee bank.
In Lao vs. Court of Appeals,8 this Court explained:
"x x x. Section 2 of B.P. Blg. 22 clearly provides that this presumption arises not from
the mere fact of drawing, making and issuing a bum check; there must also be a
showing that, within five banking days from receipt of the notice of dishonor, such
 25

maker or drawer failed to pay the holder of the check the amount due thereon or to
make arrangement for its payment in full by the drawee of such check.
"It has been observed that the State, under this statute, actually offers the violator `a
compromise by allowing him to perform some act which operates to preempt the
criminal action, and if he opts to perform it the action is abated.’ This was also compared
`to certain laws allowing illegal possessors of firearms a certain period of time to
surrender the illegally possessed firearms to the Government, without incurring any
criminal liability.’ In this light, the full payment of the amount appearing in the check
within five banking days from notice of dishonor is a `complete defense.’ The absence
of a notice of dishonor necessarily deprives an accused an opportunity to preclude a
criminal prosecution. Accordingly, procedural due process clearly enjoins that a notice
of dishonor be actually served on petitioner. Petitioner has a right to demand – and the
basic postulates of fairness require – that the notice of dishonor be actually sent to and
received by her to afford her the opportunity to avert prosecution under B.P. Blg. 22."9
In the assailed decision, the Court of Appeals predicated the conviction of petitioner on
the supposed fact that petitioner was informed of the dishonor of the checks through
verbal notice when the complainant had called her up by telephone informing her of the
dishonor of the checks and demanding payment therefor. The appellate court said:
"The maker's knowledge of the insufficiency of his funds is legally presumed from the
dishonor of his check (People vs. Laggui, 171 Phil. 305). The law does not require a
written notice of the dishonor of such check.
While, indeed, Section 2 of B.P. Blg. 22 does not state that the notice of dishonor be in
writing, taken in conjunction, however, with Section 3 of the law, i.e., "that where there
are no sufficient funds in or credit with such drawee bank, such fact shall always be
explicitly stated in the notice of dishonor or refusal,"11 a mere oral notice or demand
to pay would appear to be insufficient for conviction under the law. The Court is
convinced that both the spirit and letter of the Bouncing Checks Law would require for
the act to be punished thereunder not only that the accused issued a check that is
dishonored, but that likewise the accused has actually been notified in writing of the
fact of dishonor.12 The consistent rule is that penal statutes have to be construed strictly
against the State and liberally in favor of the accused. 13
Evidently, the appellate court did not give weight and credence to the assertion that a
demand letter was sent by a counsel of the complainant because of the failure of the
prosecution to formally offer it in evidence. Courts are bound to consider as part of the
evidence only those which are formally offered 14 for judges must base their findings
strictly on the evidence submitted by the parties at the trial.15 Without the written notice
of dishonor, there can be no basis, considering what has heretofore been said, for
establishing the presence of "actual knowledge of insufficiency of funds."16
The prosecution may have failed to sufficiently establish a case to warrant conviction,
however, it has clearly proved petitioner's failure to pay a just debt owing to the private
complainant. The total face value of the dishonored checks, to wit-
1âwphi1

"In the instant case, appellant had knowledge that her checks were dishonored by the "Check Number Dated/Postdated Amount
bank when complainant Garcia made several oral demands upon her to pay the value
of the checks in the amount of P573,800.00. Despite said demands, appellant failed
and refused to pay the same. Moreover, complaining witness further testified that his
lawyer made a written demand upon appellant but the latter ignored said demand (tsn., TRB – No. 149900 June 24, 1991 P50,000.00
May 27, 1993, pp. 13-14). In this connection, appellant waived her right to present
evidence or rebut complainant's testimony that he made oral demands upon appellant TRB – No. 161181 July 18, 1991 6,000.00
to make good the dishonored checks and his lawyer wrote her a demand letter.
TRB – No. 149906 July 24, 1991 3,000.00
"Likewise, appellant did not object to the admission of the complainant's testimony with
regard to the written demand by moving that it be stricken off the record for being No. 182074 July 30, 1991 29,700.00
hearsay, hence, the same is admissible evidence. In the case of People vs. Garcia, 89
SCRA 440, the Supreme court ruled: No. 182084 August 30, 1991 1,300.00

"`x x x (It) must be noted that neither the defendant nor his counsel below objected to
No. 182078 September 15, 1991 6,000.00
the admission of the testimonies which are now being assailed as hearsay. This is fatal
to defendant-appellant's present posture since the failure to object to hearsay evidence No. 161183 September 18, 1991 6,000.00
constitutes a waiver of the x x right to cross-examine the actual witness to the
occurrence, rendering the evidence admissible.'"10 No. 161171 September 18, 1991 100,000.00

Petitioner counters that the lack of a written notice of dishonor is fatal.1âwphi1 The
No. 182085 September 30, 1991 9,900.00
Court agrees.
 26

No. 182079 October 15, 1991 6,000.00

No. 182086 October 30, 1991 10,500.00

No. 182080 November 15, 1991 6,000.00

No. 182087 November 30, 1991 11,400.00

No. 182081 December 15, 1991 6,000.00

No. 182082 December 15, 1991 100,000.00

No. 182088 December 30, 1991 12,000.00

No. 182089 December 30, 1991 100,000.00

17
No. 182090 December 30, 1991 100,000.00"

or the sum of P563,800, has yet to be made good by petitioner. This amount, with 12%
legal interest per annum from the filing of the information until the finality of this
decision, must be forthwith settled.

WHEREFORE, the decision of the Court of Appeals is MODIFIED. Petitioner Josephine

Domagsang is acquitted of the crime charged on reasonable doubt. She is ordered,
however, to pay to the offended party the face value of the checks in the total amount
of P563,800.00 with 12% legal interest, per annum, from the filing of the informations
until the finality of this decision, the sum of which, inclusive of the interest, shall be
subject thereafter to 12%, per annum, interest until the due amount is paid. Costs
against petitioner.

SO ORDERED.

G.R. No. 183345 September 17, 2014
MA. GRACIA HAO and DANNY HAO, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondents.
Before this Court is the petition for review on certiorari 1 under Rule 45 of the Rules of
Court, filed by Ma. Gracia Hao and Danny Hao (petitioners). They seek the reversal of
the Court of Appeals' (CA) decision2 dated February 28, 2006 and resolution3 dated
June 13, 2008 in CA-G.R. SP No. 86289. These CA rulings affirmed the February 26,
20044 and July 26, 20045 orders of the Regional Trial Court (RTC) of Manila, which
respectively denied the petitioners' motion to defer arraignment and motion to lift
warrant of arrest.6
Factual Antecedents
On July 11, 2003 private complainant Manuel Dy y Awiten (Dy) filed a criminal
complaint against the petitioners and Victor Ngo (Ngo) for syndicated estafa penalized
under Article 315(2)(a) of the Revised Penal Code (RPC), as amended, in relation with
Presidential Decree (PD) No. 1689.7
Dy alleged that he was a long-time client of Asiatrust Bank, Binondo Branch where Ngo
was the manager. Because of their good business relationship, Dy took Ngo’s advice
to deposit his money in an investment house that will give a higher rate of return. Ngo
then introduced him to Ma. Gracia Hao (Gracia), also known as Mina Tan Hao, who
presented herself as an officer of various reputable companies and an incorporator of
State Resources Development Corporation (State Resources), the recommended
company that can give Dy his higher investment return.8
Relying on Ngo and Gracia’s assurances, Dy initially invested in State Resources the
approximate amount of Ten Million Pesos (₱10,000,000.00). This initial investment
earned the promised interests, leading Dy, at the urging of Gracia, toincrease his
investment to almost One Hundred Million Pesos (₱100,000,000.00). Dy increased his
investments through several checks he issued in the name of State Resources. 9 In
return, Gracia also issued several checks to Dy representing his earnings for his
investment. Gracia issued checks in the total amount of One Hundred Fourteen Million,
Two Hundred Eighty Six Thousand, Eighty Six Pesos and Fourteen Centavos
(₱114,286,086.14). All these checks10 were subsequently dishonored when Dy
deposited them.
Dy sought the assistance of Ngo for the recovery of the amount of the dishonored
checks. Ngo promised assistance, but after a few months, Dy found out that Ngo
already resigned from Asiatrust Bank and could no longer be located. Hence, he
confronted Gracia regarding the dishonored checks. He eventually learned that Gracia
invested his money in the construction and realty business of Gracia’s husband, Danny
Hao (Danny). Despite their promises to pay, the petitioners never returned Dy’s money.
27
On July 17, 2003, Dy filed a supplemental affidavit to include in the criminal complaint
Chester De Joya, Allan Roxas, Samantha Roxas, Geraldine Chiong, and Lyn Ansuas
– all incorporators and/or directors of State Resources.11
On the basis of Dy’s complaint12 and supplemental affidavit,13 the public prosecutor
filed an information14 for syndicated estafa against the petitioners and their six co-
accused. The case was docketed as Criminal Case No. 03-219952 and was raffled to
respondent RTC of Manila, Branch 40.
Judge Placido Marquez issued warrants of arrest against the petitioners and the other
accused. Consequently, petitioners immediately filed a motion to defer arraignment and
motion to lift warrant of arrest. In their twin motions, they invoked the absence of
probable cause against them and the pendency of their petition for review with the
Department of Justice (DOJ).15
In its February 26, 2004 order, the trial court denied the petitioners’ twin motions.16 The
petitioners moved for reconsideration but the trial court also denied this in its July 26,
2004 order. Consequently, the petitioners filed a petition for certiorariunder Rule 65 of
the Rules of Court with the CA.
The CA’s Ruling
The CA affirmed the denial ofthe petitioners’ motion to defer arraignment and motion to
lift warrant of arrest.
In determining probable cause for the issuance of a warrant of arrest, a judge is
mandated to personally evaluate the resolution of the prosecutor and its supporting
evidence.17 The CA noted that Judge Marquez only issued the warrants of arrest after
his personal examination of the facts and circumstances of the case. Since the judge
complied with the Rules, the CA concluded that no grave abuse of discretion could be
attributed to him.18
In its decision, however, the CA opined that the evidence on record and the assertions
in Dy’s affidavits only show probable cause for the crime of simple estafa,not syndicated
estafa. Under PD No. 1689, in order for syndicated estafato exist, the swindling must
have been committed by five or more persons, and the fraud must be against the
general public or at least a group of persons. In his complaint-affidavit, Dy merely stated
that he relied on the petitioners’ false representations and was defrauded into parting
with his money, causing him damage.19 Since there was no evidence that State
Resources was formed to defraud the public in general or that it was used to solicit
money from other persons aside from Dy, then the offense charged should only be for
simple estafa.20
Nevertheless, the CA found that the trial court did not commit grave abuse of discretion
in issuing the warrants of arrest against the petitioners as there was still probable cause
to believe that the petitioners committed the crime of simple estafa.21
The Petition

The petitioners submit that an examination of Dy’s affidavits shows inconsistencies in
his cited factual circumstances. These inconsistencies, according to the petitioners,
negate the existence of probable cause against themfor the crime charged.
The petitioners also contend thatit was only Ngo who enticed Dy to invest his money.
As early as August 1995, State Resources had already been dissolved, thus negating
the assertion that Dy advanced funds for this corporation. 22 They question the fact that
it took Dy almost five years to file his complaint despitehis allegation that he lost almost
₱100,000,000.00.23
Lastly, the petitioners claim that the warrants of arrest issued against them were null
and void. Contrary to the trial court’s findings, the CA noted in the body of its decision,
that PD 1689 was inapplicable to their case. There was no evidence to show that State
Resources was formed to solicit funds not only from Dy but also from the general public.
Since simple estafaand syndicated estafaare two distinct offenses, then the warrants
of arrest issued to petitioners were erroneous because these warrants pertained to two
different crimes.24
The Court’s Ruling
We resolve to DENYthe petition.
Procedural Consideration
We note that the present petition questions the CA’s decision and resolution on the
petition for certiorarithe petitioners filed with that court. At the CA, the petitioners
imputed grave abuse of discretion against the trial court for the denialof their twin
motions to defer arraignment and to lift warrant of arrest.
This situation is similar to the procedural issue we addressed in the case of Montoya v.
Transmed Manila Corporation25 where we faced the question of how to review a Rule
45 petition before us, a CA decision made under Rule 65. We clarified in this cited case
the kind of review that this Court should undertake given the distinctionsbetween the
two remedies. In Rule 45, we consider the correctness of the decision made by an
inferior court. In contrast, a Rule 65 review focuses on jurisdictional errors.
As in Montoya, we need to scrutinize the CA decision in the same context that the
petition for certiorari it ruled upon was presented to it. Thus, we need to examine the
CA decision from the prism of whether it correctly determined the presence or absence
of grave abuse of discretion on the part of the trial court and not on the basis of whether
the trial court’s denial of petitioners’ motions was strictly legally correct. In question
form, the question to ask is: did the CA correctly determine whether the trial court
committed grave abuse of discretion in denying petitioners’ motions to defer
arraignment and lift warrant of arrest?
Probable Cause for the Issuance of a Warrant of Arrest
Under the Constitution26 and the Revised Rules of Criminal Procedure,27 a judge is
mandated to personally determine the existence of probable cause after hispersonal
evaluation of the prosecutor’s resolution and the supporting evidence for the crime
28
charged. These provisions command the judge to refrain from making a mindless
acquiescence to the prosecutor’s findings and to conduct his own examination of the
facts and circumstances presented by both parties.
Section 5(a) of Rule 112, grantsthe trial court three options upon the filing of the criminal
complaint orinformation. He may: a) dismiss the case if the evidence on record clearly
failed to establish probable cause; b) issue a warrant of arrest if it finds probable cause;
or c) order the prosecutor to present additional evidence within five days from notice in
case of doubt on the existence of probable cause.28
In the present case, the trial court chose to issue warrants of arrest to the petitioners
and their co-accused.To be valid, these warrants must have been issued after
compliance with the requirement that probable cause be personally determined by the
judge. Notably at this stage, the judge is tasked to merely determine the probability, not
the certainty, of guilt of the accused.In doing so, he need not conduct a de novohearing;
he only needs to personally review the prosecutor's initial determination and see if it is
supported by substantial evidence.29
The records showed that Judge Marquez made a personal determination of the
existence of probable cause to support the issuance of the warrants. The petitioners,
in fact, did not present any evidence to controvert this. As the trial court ruled in its
February 26, 2004 order:
The non-arrest of all the accused or their refusal to surrender practically resulted in the
suspension of arraignment exceeding the sixty (60) days counted from the filing of co-
accused De Joya’s motions, which may be considered a petition for review, and that of
co-accused Spouses Hao’s own petition for review. This is not to mention the delay in
the resolutionby the Department of Justice. On the other hand, co-accused DeJoya’s
motion to determine probable cause and co-accused Spouses Hao’s motion to lift
warrant of arrest have been rendered moot and academic with the issuance of warrants
of arrest by this presiding judge after his personal examination of the facts and
circumstances strong enough in themselves to support the belief that they are guilty of
the crime that in fact happened.30 [Emphasis ours]
Under this situation, we conclude that Judge Marquez did not arbitrarily issue the
warrants of arrest against the petitioners. As stated by him, the warrants were only
issuedafter his personal evaluation of the factual circumstances that led him to believe
that there was probable cause to apprehend the petitioners for their commission of a
criminal offense.
Distinction between Executive and Judicial Determination of Probable Cause
In a criminal prosecution, probable cause is determined at two stages. The first is at
the executive level, where determination is made by the prosecutor during the
preliminary investigation, before the filing of the criminal information. The second is at
the judicial level, undertaken by the judge before the issuance of a warrant of arrest.
In the case at hand, the question before us relates to the judicial determination of
probable cause. In order to properly resolve if the CA erred in affirming the trial court’s

issuance of the warrants of arrest against the petitioners, it is necessary to scrutinize
the crime of estafa, whether committed as a simple offense or through a syndicate.
The crime of swindling or estafa is covered by Articles 315-316 of the RPC. In these
provisions, the different modes by which estafa may be committed, as well as the
corresponding penalties for each are outlined. One of these modes is estafaby means
of deceit. Article 315(2)(a) of the RPC defines how this particular crime is perpetrated:
2. By means of any of the following false pretenses or fraudulent acts executed prior
toor simultaneously with the commission of the fraud:
(a) By using fictitious name, or falsely pretending to possess power, influence,
qualifications, property, credit, agency, business orimaginary transactions, or by means
of other similar deceits.
Under this provision, estafa has the following elements: 1) the existence of a false
pretense, fraudulent act or fraudulent means; 2) the execution of the false pretense,
fraudulent act or fraudulent means prior to or simultaneously with the commission of
the fraud; 3) the reliance by the offended party on the false pretense, fraudulent act or
fraudulent means, which induced him to part withhis money or property; and 4) as a
result, the offended party suffered damage.31
As Dy alleged in his complaint-affidavit, Ngo and Gracia induced him to invest with
State Resources and promised him a higher rate of return. 32 Because of his good
business relationship with Ngo and relying on Gracia’s attractive financial
representations, Dy initially invested the approximate amount of ₱10,000,000.00.
This first investment earned profits. Thus, Dy was enticed by Gracia to invest more so
that he eventually advanced almost ₱100,000,000.0033 with State Resources. Gracia’s
succeeding checks representing the earnings of his investments, however, were all
dishonored upon deposit.34 He subsequently learned that the petitioners used his
money for Danny’s construction and realty business.35 Despite repeated demands and
the petitioners’ constant assurances to pay, they never returned Dy’s invested money
and its supposed earnings.36
These cited factual circumstances show the elements of estafaby means of deceit. The
petitioners inducedDy to invest in State Resources promising higher returns. But
unknown to Dy, what occurred was merely a ruse to secure his money to be used in
Danny’s construction and realty business. The petitioners’ deceit became more blatant
when they admitted in their petition that as early as August 1995, State Resources had
already been dissolved.37 This admission strengthens the conclusion that the
petitioners misrepresented facts regarding themselves and State Resources in order to
persuade Dy to part with his money for investment with an inexistent corporation.
These circumstances all serve as indicators of the petitioners’ deceit. "Deceit is the
false representation of a matter of fact, whether by words or conduct, by false or
misleading allegations, or by concealment of that which should have been disclosed,
which deceives or is intended to deceive another, so that he shall act upon it to his legal
injury."38
29
Thus, had it not been for the petitioners’ false representations and promises, Dy would
not have placed his money in State Resources, to his damage. These allegations
cannot but lead us to the conclusion that probable cause existed as basis to arrest the
petitioners for the crime of estafa by means of deceit.
We now address the issue of whether estafain this case was committed through a
syndicate.
Under Section 1 of PD No. 1689,39 there is syndicated estafaif the following elements
are present: 1) estafaor other forms of swindling as defined in Articles 315 and 316 of
the RPC was committed; 2) the estafaor swindling was committed by a syndicate of
five or more persons; and 3) the fraud resulted inthe misappropriation of moneys
contributed by stockholders, or members of rural banks, cooperatives, "samahang
nayon[s]," or farmers associations or of funds solicited by corporations/associations
from the general public.40
The factual circumstances of the present case show that the first and second elements
of syndicated estafaare present; there is probable cause for violation of Article 315(2)(a)
of the RPC against the petitioners. Moreover, in Dy’s supplemental complaint-affidavit,
he alleged that the fraud perpetrated against him was committed, not only by Ngo and
the petitioners, but also by the other officers and directors of State Resources. The
number of the accused who allegedly participated in defrauding Dy exceeded five, thus
satisfying the requirement for the existence of a syndicate.
However, the third element of the crime is patently lacking. The funds fraudulently
solicited by the corporation must come from the general public. In the present case, no
evidence was presented to show that aside from Dy, the petitioners, through State
Resources, also sought investments from other people. Dy had no co-complainants
alleging that they were also deceived to entrust their money to State Resources. The
general public element was not complied with. Thus, no syndicated estafaallegedly took
place, only simple estafa by means of deceit.
Despite this conclusion, we still hold that the CA did not err in affirming the trial court’s
denial ofthe petitioners’ motion to lift warrant of arrest.
A warrant of arrest should be issued if the judge after personal evaluation of the facts
and circumstances is convinced that probable cause exists that an offense was
committed.
Probable cause for the issuance ofa warrant of arrest is the existence of such facts and
circumstances that would lead a reasonably discreet and prudent person to believethat
an offense was committed by the person sought to be arrested.41 This must be
distinguished from the prosecutor’s finding of probable cause which is for the filing of
the proper criminal information. Probable cause for warrant of arrest is determined to
address the necessity of placing the accused under custody in order not to frustrate the
ends of justice.42
In People v. Castillo and Mejia,43 we explained the distinction between the two kinds of
probable cause determination:
 30

There are two kinds of determination of probable cause: executive and judicial. The
executive determination of probable cause is one made during preliminary
investigation. It is a function that properly pertains to the public prosecutor who is given
a broad discretion to determine whether probable cause exists and to charge those
whom he believes to have committed the crime as defined by law and thus should be
held for trial. Otherwise stated, such official has the quasi-judicial authority to determine
whether or not a criminal case must be filed in court. Whether or not that function has
been correctly discharged by the public prosecutor, i.e., whether or not he has made a
correct ascertainment of the existence of probable cause in a case, is a matter that the
trial court itself does not and may not be compelled to pass upon.
The judicial determination of probable cause, on the other hand, is one made by the
judge to ascertain whether a warrant of arrest should be issued against the accused.
The judge must satisfy himself that based on the evidence submitted, there is necessity
for placing the accused under custody in order not to frustrate the ends of justice. If the
judge finds no probable cause, the judge cannot be forced to issue the arrest
warrant.44 [Emphasis ours]
With our conclusion that probable cause existed for the crime of simple estafa and that
the petitioners have probably committed it, it follows that the issuance of the warrants
of arrest against the petitioners remains to be valid and proper. To allow them to go
scot-free would defeat rather than promote the purpose of a warrant of arrest, which is
to put the accused in the court’s custodyto avoid his flight from the clutches of justice.
Moreover, we note that simple estafa and syndicated estafa are not two entirely
different crimes. Simple estafais a crime necessarily included in syndicated estafa. An
offense is necessarily included in another offense when the essential ingredients of the
former constitute or form a part of those constituting the latter. 45
filing of the petition with the reviewing office. It follows, therefore, that after the
expiration of the 60-day period, the trial court is bound to arraign the accused or to deny
the motion to defer arraignment.48
As the trial court found in its February 26, 2004 order, the DOJ's delay in resolving the
petitioners' petition for review had already exceeded 60 days. Since the suspension of
the petitioners' arraignment was already beyond the period allowed by the Rules, the
petitioners' motion to suspend completely lacks any legal basis.
As a final note, we observe that the resolution of this case had long been delayed
because of the petitioners' refusal to submit to the trial court's jurisdiction and their
erroneous invocation of the Rules in their favor. As there is probable cause for the
petitioners' commission of a crime, their arrest and arraignment should now ensue so
that this case may properly proceed to trial, where the merits of both the parties'
evidence and allegations may be weighed.
WHEREFORE, premises considered, we hereby DENY the petition and AFFIRM WITH
MODIFICATION the February 28, 2006 decision and June 13, 2008 resolution of the
Court of Appeals in CAG.R. SP No. 86289. We hereby order that petitioners Ma. Gracia
Hao and Danny Hao be charged for simple estafa under Article 315(2)(a) of the Revised
Penal Code, as amended and be arraigned for this charge. The warrants of arrest
issued stand.
SO ORDERED.

Under this legal situation, only a formal amendment of the filed information under
Section 14, Rule 110 of the Rules of Court46 is necessary; the warrants of arrest issued
against the petitioners should not be nullified since probable cause exists for simple
estafa.

Suspension of Arraignment

Under Section 11(c), Rule 116of the Rules of Court, an arraignment may be suspended
if there is a petition for review of the resolution of the prosecutor pending at either the
DOJ, or the Office of the President. However, such period of suspension should not
exceed sixty (60) days counted from the filing of the petition with the reviewing office.

As the petitioners alleged, they filed a petition for review with the DOJ on November
21, 2003. Since this petition had not been resolved yet, they claimed that their
arraignment should be suspended indefinitely.

We emphasize that the right of an accused to have his arraignment suspended is not
an unqualified right.1âwphi1 In Spouses Trinidad v. Ang,47 we explained that while the
pendency of a petition for review is a ground for suspension of the arraignment, the
Rules limit the deferment of the arraignment to a period of 60 days reckoned from the

G.R. No. 205698
HOME DEVELOPMENT MUTUAL FUND (HDMF) PAG-IBIG FUND, Petitioner
vs.
CHRISTINA SAGUN, Respondent
We hereby consider and resolve the following consolidated appeals by petition for
review on certiorari,1 namely:
(1) G.R. Nos. 205698, 205780, 209446, 209489, 209852, 210143, 228452 and 228730,
whereby petitioners Department of Justice (DOJ), the People of the Philippines and the
Home Development Mutual Fund (HDMF) assail the decisions 2 of the Court of Appeals
(CA): (i) setting aside the August 10, 2011 Review Resolution of the DOJ insofar as
Christina Sagun (Sagun) is concerned; and (ii) annulling the May 22, 2012 and August
22, 2012 resolutions of the Regional Trial Court, Branch 42, in San Fernando City,
Pampanga (Pampanga RTC), and quashing the warrants of arrest issued against Delfin
Lee, Dexter Lee (Dexter), and Atty. Alex Alvarez (Atty. Alvarez) for lack of probable
cause;
(2) G.R. No. 230680, whereby petitioner Cristina Salagan assails the decision of the
CA dismissing her petition for certiorari and upholding the resolutions dated May 22,
2012 and January 29, 2014 of the Pampanga RTC insofar as finding probable cause
for the crime of syndicated estafa and the issuance of a warrant of arrest against her
were concerned;
(3) G.R. Nos. 208744 and 210095, whereby the DOJ challenges the resolutions of the
CA dismissing its petition for certiorari for being filed out of time;3 and
(4)G.R. No. 209424, whereby HDMF assails the decision promulgated on October 7,
2013,4 whereby the CA found no grave abuse of discretion on the part of the Regional
Trial Court, Branch 58, in Makati City (Makati RTC) in issuing its January 31, 2012 final
resolution granting the motion for summary judgment of Globe Asiatique Realty
Holdings, Corp. (Globe Asiatique) and Delfin Lee in Civil Case No. 10-1120
entitled Globe Asiatique Realty Holdings Corporation and Delfin Lee, in his capacity as
President of the Corportion v. Home Development Mutual Fund (HDMF) or Pag-IBIG
Fund, its Board of Trustees and Emma Linda Faria, Officer-in-Charge.
Salient Factual Antecedents
In 2008, Globe Asiatique, through its president Delfin Lee, entered into a Window I-
Contract to Sell (CTS) Real Estate Mortgage (REM) with Buy-back Guaranty take out
mechanism with the HDMF, also known as the Pag-Ibig Fund, for its Xevera Bacolor
Project in Pampanga. Globe Asiatique and HDMF also executed various Funding
Commitment Agreements (FCAs) and Memoranda of Agreement (MOAs). 5
Under the FCAs, Delfin Lee warranted that the loan applicants that Globe Asiatique
would allow to pre-process, and whose housing loans it would approve, were existing
buyers of its real estate and qualified to avail themselves of loans from HDMF under
the Pag-Ibig Fund; that all documents submitted to the HDMF in behalf of the
applicants, inclusive of the individual titles and the corresponding Deeds of Assignment,
31
were valid, binding and enforceable; that any person or agent employed by Globe
Asiatique or allowed to transact or do business in its behalf had not committed any act
of misrepresentation; and that in the event of a default of the three-month payment on
the amortizations by said members or any breach of warranties, Globe Asiatique would
buy back the CTS/REM accounts during the first two years of the loan. 6
The parties further agreed that Globe Asiatique would collect the monthly amortizations
on the loans obtained by its buyers in the first two years of the loan agreements and
remit the amounts collected to HDMF through a Collection Servicing Agreement (CSA).
In this regard, Delfin Lee undertook to maintain at least 90% Performing Accounts Ratio
(PAR) under the CSA.7
On June 10, 2008, Delfin Lee proposed the piloting of a Special Other Working Group
(OWG) Membership Program for its Xevera Bacolor Project while the FCA was in effect.
The OWG Membership Program would comprise of HDMF members who were not
formally employed but derived income from non-formal sources (e.g., practicing
professionals, selfemployed members, Overseas Filipino Workers (OFWs), and
entrepreneurs). Delfin Lee offered to extend the buy-back guarantee from two to five
years to bolster his position that the project was viable. HDMF eventually entered into
another agreement for this purpose. 8
Corollary to the foregoing, the parties entered into a second FCA worth
₱200,000,000.00. Globe Asiatique likewise undertook that the PAR for all of its projects
would be increased to at least 95%; that the buy-back guaranty for all accounts taken
out from the Xevera Bacolor Project would be increased to five years; that it would
assign all its housing loan proceeds from its other projects to HDMF to cover any unpaid
obligations from the Xevera Project; and that the OWG borrowers, to be eligible for
Pag-Ibig Membership, would be required to present their Income Tax Returns (ITRs)
and affidavits of income.9
On July 13, 2009, the parties executed a MOA granting Globe Asiatique an additional
₱5,000,000,000.00 funding commitment line for its Xevera Projects in Pampanga on
the condition that Globe Asiatique would maintain a 95% PAR, and that the housing
loan take-outs would be covered by a buy-back guaranty of five years. 10 Section 9 of
the MOA expressly stated, however, that the MOA "supersedes, amends and modifies
provisions of all other previous and existing Agreements that are Inconsistent
hereto." 11
More FCAs were executed between the parties. According to HDMF, the aggregate
amount of ₱7,007,806,000.00 was released to Globe Asiatique in a span of two years
from 2008 to September 24, 2010, representing a total of 9 ,951 accounts. 12
In the course of its regular validation of buyers' membership eligibilities for taking out
loans for the Xevera Project, HDMF allegedly discovered some fraudulent transactions
and false representations purportedly committed by Globe Asiatique, its owners,
officers, directors, employees, and agents/representatives, in conspiracy with HDMF
employees. HDMF invited the attention of Delfin Lee regarding some 351 buyers who
surrendered or withdrew their loans and were no longer interested in pursuing the
same, and requested Globe Asiatique to validate the 351 buyers. Delfin Lee replied

that Globe Asiatique was actually monitoring about 1,000 suspicious buyers' accounts.
Subsequently, HDMF ostensibly found out about an additional 350 buyers who either
denied knowledge of having availed of loans or manifested their intention to terminate
their account. 13
As a result, HDMF revoked the authority of Globe Asiatique under the FCA; suspended
all take-outs for new housing loans; required the buyback of the 701 fraudulent
accounts; and cancelled the release of funds to Globe Asiatique in August 2010.
About a month later, Globe Asiatique discontinued remitting the monthly amortization
collections from all borrowers of Xevera.
14
Finally, HDMF terminated the CSA with Globe Asiatique on August 31, 2010.
Meanwhile, HDMF continued its post take-out validation of the borrowers, and
discovered that at least 644 supposed borrowers under the OWG Membership Program
who were processed and approved by Globe Asiatique for the take-out by HDMF were
not aware of the loans they had supposedly signed in relation to the Xevera Project;
and assuming they were aware of the loan agreements, they had merely signed the
same in consideration of money given to them by Globe Asiatique; that some borrowers
were neither members of HDMF nor qualified to take out a housing loan from HDMF
because they had insufficient or no income at all or they did not have the minimum
number of contributions in HDMF; and that some of the borrowers did not live in the
units they purchased. 15
HDMF alleged that at least 805 borrowers could not be located or were unknown in the
addresses they had provided in the loan agreements, or had indicated non-existent
addresses therein; and that it incurred damages totalling ₱1.04 billion covering the
loans of 644 fraudulent and 805 fake borrowers attributed to the fraudulent and criminal
misrepresentations of Delfin Lee and Globe Asiatique's officials and employees. 16
The Criminal Charges
Upon the recommendation of the National Bureau of Investigation (NBI), the DOJ
conducted its preliminary investigation against Globe Asiatique, particularly its officers,
namely: Delfin S. Lee, Dexter L. Lee, Ramon Palma Gil, Cristina Salagan, Lerma Vitug,
Tintin Fonclara, Geraldine Fonclara, Revelyn Reyes, Atty. Rod Macaspac, Marvin
Arevalo, Joan Borbon, Christian Cruz, Rodolfo Malabanan, Nannet Haguiling, John
Tungol and Atty. Alex Alvarez on the strength of the complaint-affidavit dated October
29, 2010 filed by Emma Linda B. Faria, then the officer-in-charge (OIC) of the HDMF.
This first complaint alleged the commission of the crime of
syndicated estafa constituting economic sabotage, as defined and penalized under
Article 315(2)(a) of the Revised Penal Code, in relation to Presidential Decree No. 1689
(P.D. No. 1689).17
The DOJ formed a panel of prosecutors to investigate the complaint.
On December 10, 2010, the NBI Anti-Graft Division recommended the filing of a second
complaint for syndicated estafa constituting economic sabotage under P.D. No. 1689,
in relation to Article 315(2) of the Revised Penal Code against Delfin Lee and the
32
others. This second complaint was precipitated by the complaints of supposed Globe
Asiatique clients such as Evelyn Niebres, Catherine Bacani and Ronald San Nicolas,
who were victims of double sale perpetrated by Globe Asiatique. 18
Also, HDMF brought a complaint against Globe Asiatique and its officers for the
fraudulent take-out of housing loans for bogus buyers.
Subsequently, the DOJ formed yet another panel of prosecutors to conduct another
preliminary investigation. 19
Upon learning of the filing of the second case in the DOJ, Delfin Lee filed a petition for
the suspension of proceedings pending the outcome of the civil action for specific
performance that he and Globe Asiatique had commenced in the Makati RTC,
contending therein that the issue in the civil case constituted a prejudicial question vis-
a-vis the second DOJ case.
On February 21, 2011, the DOJ panel of prosecutors issued an Omnibus
Order denying Delfin Lee's prayer for suspension of proceedings.
After Delfin Lee's motion for reconsideration was denied on July 5, 2011, he filed his
counter-affidavit ad cautelam in the DOJ.20
On August 10, 2011, Prosecutor General Claro A. Arellano approved the Review
Resolution of Senior Deputy State Prosecutor Theodore M. Villanueva, the Chairman
of the DOJ's Task Force on Securities and Business Scam (SDSP Villanueva)
pertaining to the first criminal complaint.21 It is noted that the investigating prosecutors
of the DOJ's Task Force on Securities and Business Scam had initially recommended
the filing of charges for the crime of estafa defined and penalized under paragraph 2(a)
of Article 315 of the Revised Penal Code, in relation to paragraph 2, Section 1 of PD
No. 1689, against Delfin Lee, Sagun, and Cristina Salagan (Salagan). However, SDSP
Villanueva recommended in the Review Resolution the inclusion of Atty. Alvarez and
Dexter Lee in the estafa charge, thereby charging syndicated estafa, with no bail
recommended.22
Consequently, Delfin Lee filed an amended petition on August 25, 2011 to enjoin the
DOJ from filing the information for syndicated estafa in relation to the first DOJ case.23
On September 15, 2011, Sagun filed in the CA her petition for certiorari and prohibition
with prayer for the issuance of a temporary restraining order (TRO) and/or writ of
preliminary injunction to assail the August 10, 2011 Review Resolution of the
DOJ (C.A.-G.R. SP No. 121346).24
On his part, Atty. Alvarez resorted to his own petition for review on October 3, 2011 of
the same August 10, 2011 Review Resolution in the DOJ. However, on November 14,
2011, he withdrew his petition following his filing of a petition in the Manila RTC on
October 10, 2011 assailing the same August 10, 2011 Review Resolution. He also filed
a petition for certiorari with the CA on November 15, 2011 to enjoin the DOJ from filing
the information in the first syndicated estafa case, but he subsequently withdrew the
petition and filed on the same day a petition for injunction and prohibition in the
Caloocan City RTC, Branch 125, to enjoin the DOJ from filing the information in the first

syndicated estafa case and from conducting the preliminary investigation in the second
case.25
Proceedings in the Pasig RTC
Prior to the DOJ's issuance of its August 10, 2011 Review Resolution, Delfin Lee
initiated his action for injunction on July 28, 2011 in the Pasig RTC to enjoin the DOJ
from proceeding with the second DOJ case, and reiterated therein that the civil case
pending in the Makati R TC constituted a prejudicial question vis-a-vis the second DOJ
case. The case was docketed as Civil Case No. 73115 entitled Delfin S. Lee v.
Department of Justice.
The Pasig RTC, then presided by Judge Rolando Mislang, granted Delfin Lee's prayer
for the issuance of the TROs on August 16, 2011, and admitted the amended petition
on August 26, 2011. 26
The Pasig RTC thereafter issued the writ of preliminary injunction under both the
original and the amended petitions on September 5, 2011. 27
Aggrieved, the DOJ filed a petition for certiorari on October 6, 2011 (C.A.-G.R. SP No.
121594), alleging that Judge Mislang had committed grave abuse of discretion in
issuing the writ of preliminary injunction enjoining the filing of the information for
syndicated estafa with respect to the first case and from proceeding with the preliminary
investigation in the second case on the ground of the existence of a prejudicial
question.28
On April 16, 2012, the CA granted the DOJ's petition for certiorari in C.A.-G.R. SP No.
121594, and ruled that the facts and issues in the civil case pending in the Makati RTC
were not determinative of the guilt or innocence of Delfin Lee in the cases filed in the
DOJ; hence, it annulled and set aside the writ of preliminary injunction issued by Judge
Mislang.29
The adverse ruling in C.A.-G.R. SP No. 121594 was appealed by petition for review
on certiorari. On July 4, 2012, the Court dismissed the appeal because of Delfin Lee's
failure to show any reversible error on the part of the CA in issuing the assailed decision.
The dismissal became final and executory. 30
Much later on, Delfin Lee learned of the third and fourth criminal complaints filed in the
DOJ. Again, he sought the issuance of a TRO by the Pasig RTC.
On March 21, 2013, Judge Mislang issued the second TRO enjoining the preliminary
investigation of the second, third and fourth criminal complaints. 31
On April 10, 2013, Judge Mislang issued the writ of preliminary injunction in Civil Case
No. 73115 enjoining the conduct of the preliminary investigation in the second, third
and fourth criminal complaints. 32
Consequently, the DOJ filed another petition for certiorari, docketed as C.A.-G.R.
SP No. 130409, to annul the writ of preliminary injunction issued on April 10, 2013 by
the Pasig RTC.
33
Proceedings in the Pampanga RTC
With the lifting of the first writ of preliminary injunction issued by the Pasig RTC, the
DOJ filed a criminal case for syndicated estafa against
Delfin Lee, Dexter Lee, Christina Sagun (Sagun), Cristina Salagan (Salagan), and Atty.
Alex Alvarez (Atty. Alvarez) on April 30, 2012 in the Pampanga RTC. The case was
docketed as Criminal Case No. 18480 entitled People of the Philippines v. Delfin Lee,
Dexter L. Lee, Christina Sagun, Cristina Salagan, and Atty. Alex Alvarez. 33
The information in Criminal Case No. 18480 reads:
That sometime during the period from 10 June 2008 to 24 September 2010, or on dates
prior and subsequent thereto, in the City of San Fernando, Pampanga, and within the
jurisdiction of this Honorable Court, the above-named accused DELFIN S. LEE,
DEXTER L. LEE, CHRISTINA SAGUN[,] CRISTINA SALAGAN and ATTY. ALEX
ALVAREZ, acting as a syndicate formed with the intention of carrying out the unlawful
or illegal act, transaction, enterprise or scheme of soliciting funds from the general
public, each performing a particular act in furtherance of the common design, by way
of take out on housing loans of supposed Pag-IBIG fund members through the use of
fictitious buyers and/or "special buyers" conspiring, confederating and mutually helping
one another, by means of false pretenses or fraudulent acts executed prior to or
simultaneously with the commission of fraud, did then and there wilfully, unlawfully and
feloniously defraud the private complainant HOME DEVELOPMENT MUTUAL FUND,
otherwise known as the Pag-IBIG Fund, in the following manner, to wit: accused Delfin
S. Lee, being the president and chief executive officer of Globe Asiatique Realty
Holdings Corporation (GA), a domestic corporation engaged in real estate
development, did then and there willfully, unlawfully and knowingly enter into funding
commitment agreements and other transactions with the private complainant, wherein
said accused Delfin S. Lee made false and fraudulent representations to the latter that
GA has interested buyers in its Xevera projects in Bacolor and Mabalacat, Pampanga
when, in truth and in fact, said accused knew fully well that the corporation does not
have such buyers, as in fact the said corporation, through accused Delfin S. Lee, Dexter
L. Lee, Christina Sagun, Cristina Salagan and Atty. Alex Alvarez, in conspiracy with
one another, submitted names of fictitious buyers and documents to Pag-IBIG Fund as
housing loan applicants/buyers of GA's Xevera projects in order to obtain, as in fact the
said corporation obtained, through accused Delfin S. Lee, fund releases from HDMF
by way of housing loan take-out of the said fictitious buyers. In addition, the said
corporation, through accused Delfin S. Lee, Dexter L. Lee, Christina Sagun, Cristina
Salagan and Atty. Alex Alvarez, has also engaged in a "special buyers" scheme
whereby it recruited persons who does not have any intention to buy its housing units
in Xevera but, in exchange for a fee, said "special buyers" lent their names and Pag-
IBIG membership to GA, so that the said corporation could use, as in fact it has used,
the names and Pag-IBIG membership of the said "special buyers" in obtaining fund
releases from HDMF, as the said corporation, through accused Delfin S. Lee, had in
fact obtained fund releases from HDMF, by way of take-out of the supposed housing
loans of the "special buyers", and by reason of the aforesaid false and fraudulent
representations of accused Delfin S. Lee, Dexter L. Lee, Christina Sagun, Cristina

Salagan and Atty. Alex Alvarez, HDMF was induced to release, through several funding
commitment agreements, to Globe Asiatique Realty Holdings Corporation, through
accused Delfin S. Lee, the total amount of ₱6,653,546,000.00, more or less, and upon
receipt of the aforesaid amount, the above-named accused did then and there willfully,
unlawfully and feloniously convert, misappropriate and misapply the same, and despite
repeated demands, the above-named accused failed and refused to pay the same, to
the damage and prejudice of the private complainant in the aforesaid amount.
As to the element of deceit, it was found that the documents submitted by GA
concerning the existence and qualifications of its buyers are spurious and/or
questionable. It was uncovered that at least 351 of the supposed buyers have already
surrendered or withdrew their loans and/or are no longer interested in pursuing their
loans, while the alleged buyers for additional 350 Xevera accounts have either denied
availing of the loans or expressed their intention to cancel their respective accounts.
Afterwards, documents obtained by HDMF through special audit conducted on the
Xevera Projects disclose that out of the 8,230 loans taken out by Pag-IBIG, only 39%
of the borrowers belong to the Other Working Group (OWG) category. On the other
hand, out of the 10% of the OWG surveyed/audited, only 1.85% are actually living in
the units they purchased, whereas, 83.38% of the acquired units remain unoccupied;
7.69% of the units are closed, 6.15% are being occupied by third parties; and lastly,
0.92% of the units are yet to be constructed. The same documents likewise show that:
(a) from a random examination of the units taken out by Pag-IBIG and which are being
occupied by third parties, 16 units are being occupied by in-house buyers - two of whom
have fully paid their obligations with GA; 3 units were leased out by non-borrowers; 1
unit is being occupied by a replacement buyer; and 82% of the borrowers of the units
have failed to submit their respective Income Tax Returns (ITR) which is a mandatory
requirement for the approval of their loan applications, and (b) as a result of the post
take-out validation conducted by HDMF, it was found that 644 borrowers endorsed by
GA are not genuine buyers of Xevera homes while 802 are nowhere to be found; 3
buyers are already deceased; and 275 were not around during the visit, hence,
establishing that all of them are fictitious buyers.
In connection with the "special buyers scheme," it was established that the people
engaged as such have no intention of buying housing units from GA, but merely agreed
to the same after GA's agents sought them out for a fee of ₱5,000.00. After being paid
such fee, the aforementioned "special buyers" agreed to apply for membership with
Pag-IBIG, on the condition that it is GA that pays for their 24 months installments, so
that they can be qualified to apply for a Pag-IBIG housing loan. Thereafter, these
"special buyers" are made to execute loan and other supporting documents, which are
then submitted to HDMF for take-out of their housing loans for the Xevera projects.
After take-out, GA pays the monthly amortizations of these "special buyers" to Pag-
IBIG, using the payment made to it by Pag-IBIG on the housing loan of GA's Xevera
project buyers. In this wise, GA's Performing Accounts Ration (PAR) reached as high
as 99.97%. However, when HDMF stopped fund releases to GA by way of housing loan
take-outs of its buyers, or sometime August 2010, GA started to fail in remitting to
HDMF Pampanga Branch office the monthly housing loan amortizations of its buyers
of Xevera project. Thus, GA's almost 100% monthly collection/remittance rate dropped
to 0% or no remittance at all when HDMF stopped its fund releases to GA, thereby
34
establishing that the monthly amortizations of its borrowers were being paid by GA from
the funds released by HDMF on the housing loans of its Xevera housing project
borrowers.
That in carrying out the aforesaid conspiracy, accused Christina Sagun, head of the
documentation department of Globe Asiatique Realty and Holdings Corp., did then and
there unlawfully, feloniously and knowingly process and approve the housing loan
applications of the said fictitious and "special buyers" of GA, in clear violation of the
terms of conditions of the agreements entered into between HDMF and GA; accused
Dexter L. Lee, did then and there, unlawfully, feloniously and knowingly order
employees of GA to find and recruit "special buyers," and in fact found such special
buyers, in accordance with the aforementioned illegal scheme, and in fact, is a co-
signatory of the checks issued by GA in favor of the said "special buyers;" accused
Atty. Alex Alvarez, did then and there unlawfully, feloniously and knowingly notarize
crucial pieces of documents, consisting, among others, of the buyer's affidavit of
income, promissory note, and developer's affidavit (by Ms. Cristina Sagun) alleging
compliance with the conditions set by HDMF, all of which are essential for the
processing and approval of the purported transaction; and accused CRISTINA
SALAGAN, being the head of GA's accounting department, did then and there
unlawfully, feloniously and knowingly allow the release of the questionable amounts of
₱5,000.00 as payment to every fake/fictitious and/or "special buyer" applicant of GA
despite knowledge of its unlawful and illegal nature, to the damage and prejudice of
HDMF and/or its members.
CONTRARY TO LAW.34
In due course, the respondents separately moved to quash the information and to seek
judicial determination of probable cause.35
On May 22, 2012, the Pampanga RTC found probable cause for syndicated estafa and
for the issuance of warrants of arrest, to wit:
PREMISES GIVEN, the Court orders the following:
I. Probable cause for the crime of ESTAFA (ARTICLE 315 [2] [a] of the Revised Penal
Code, in relation to Section 1 of P.D. 1689, as amended, is found against the Accused
DELFIN S. LEE, DEXTER L. LEE, CHRISTINA SAGUN, CRISTINA SALAGAN and
ATTY. ALEX ALVAREZ.
II. Issue Warrant of Arrest against DELFIN S. LEE, DEXTER L. LEE, CHRISTINA
SAGUN, CRISTINA SALAGAN and ATTY. ALEX ALVAREZ.
III. There is NO BAIL RECOMMENDED for each of DELFIN S. LEE, DEXTER L. LEE,
CHRISTINA SAGUN, CRISTINA SALAGAN and ATTY. ALEX ALVAREZ.
The setting (sic) on May 23 and 24, 2010 is (sic) CANCELLED.
SO ORDERED.36

Upon notice of the resolution, Delfin Lee filed a Motion to Recall/Quash Warrant of
Arrest and/or Hold in Abeyance their Release to Law Enforcement Agencies Pending
Resolution of this Motion.
On August 22, 2012, the Pampanga RTC denied Delfin Lee's Motion to Recall/Quash
Warrant of Arrest and/or Hold in Abeyance their Release to Law Enforcement Agencies
Pending Resolution of this Motion. 37
Delfin Lee, Dexter and Salagan moved to reconsider the August 22, 2012 resolution of
the Pampanga RTC.
Without waiting for the resolution of the motion, Delfin Lee filed a petition
for certiorari with prayer for the issuance of a TRO and/or writ of preliminary injunction
in the CA on November 26, 2012 to nullify the resolutions of the Pampanga RTC dated
May 22, 2012 and August 22, 2012 (C.A.-G.R. SP No. 127553).38
Meanwhile, Atty. Alvarez also filed a motion for reconsideration of the May 22, 2012
resolution, but the Pampanga RTC denied the motion on August 22, 2012. Thereafter,
he filed a petition for certiorari with the CA to nullify and set aside the May 22, 2012 and
August 22, 2012 resolutions of the Pampanga RTC. The petition was docketed as C.A.-
G.R. SP No. 127690.
Dexter filed his own petition for certiorari in the CA to question the May 22, 2012 and
August 22, 2012 resolutions of the Pampanga RTC,
Salagan likewise filed her own petition for certiorari in the CA alleging grave abuse of
discretion on the part respondent Judge of the Pampanga RTC in issuing the May 22,
2012 resolution denying her second motion to quash information with prayer to re-
determine probable cause and the January 29, 2014 resolution denying her motion for
reconsideration.
The Civil Case
(Proceedings before the Makati RTC)
Globe Asiatique and Delfin Lee initiated the complaint for specific performance and
damages against HDMF on November 15, 2010. Docketed as Civil Case No. 10-
1120,39 the case was assigned to Branch 58 of the Makati RTC. Globe Asiatique and
Delfin Lee thereby sought to compel HDMF to accept the proposed replacements of
the buyers/borrowers who had become delinquent in their amortizations, asserting that
HDMF's inaction to accept the replacements had forced Globe Asiatique to default on
its obligations under the MOA and FCAs.40
Globe Asiatique and Delfin Lee filed a Motion for Summary Judgment, which the Makati
RTC, after due proceedings, resolved on January 30, 2012, disposing thusly:
WHEREFORE, premises considered, a Summary Judgment is hereby rendered
declaring that:
35
1. Plaintiff (sic) have proven their case by preponderance of evidence. As such, they
are entitled to specific performance and right to damages as prayed for in the
Complaint, except that the exact amount of damages will have to be determined
during trial proper.
2. Pursuant to the provisions of their MOA amending the continuing FCAs and CSAs,
defendant HDMF is hereby ordered to comply faithfully and religiously with its obligation
under the said contracts, including but not limited to the release of loan take-out
proceeds of those accounts whose Deed [ s] of Assignment with Special Power of
Attorney have already been annotated in the corresponding Transfer Certificate of Title
covering the houses and lots purchased by the Pag-IBIG member-borrowers from
plaintiff GARHC as well as the evaluation of the loan applications of those who
underwent or will undergo plaintiff GARHC's loan counselling and are qualified or PAG-
IBIG FUND loans under the MOA and continuing FCAs and process the approval
thereof only if qualified, under the Window 1 Facility as provided for in the MOA and
continuing FCAs;
3. The unilateral cancellation by defendant HDMF of the continuing FCAs specifically
the latest FCAs of December 15, 2009, January 5 and March 17, 2010 and CSA dated
10 February 2009, is hereby SET ASIDE[;]
4. Defendants are ordered to automatically off-set the balance of those listed in Annex
"E" of the Motion for Summary Judgment against the retention money, escrow money,
funding commitment fees, loan takeout proceeds and other receivables of plaintiff
GARHC which are still in the control and possession of defendant HDMF;
5. Defendants are ordered to accept the replacement-buyers listed in Annex "F" of the
Motion for Summary Judgment, which list is unopposed by defendants, without interest
or penalty from the time of defendant HDMF's cancellation of the Collection Servicing
Agreement (CSA) resulting to the refusal to accept the same up to the time that these
replacement buyers are actually accepted by defendant HDMF;
6. Defendants are ordered to release the corresponding Transfer Certificate of Title[s]
(TCTs) of those accounts which are fully paid or subjected to automatic off-setting
starting from the list in Annex "E" of the Motion for Summary Judgment and thereafter
from those listed in Annex "F" thereof and cause the corresponding cancellation of the
annotations in the titles thereof.
Let this case be set for the presentation of evidence on the exact amount of damages
that plaintiffs are entitled to on March 12, 2012 at 8:30 in the morning.
SO ORDERED.41
On December 11, 2012, the Makati R TC denied the motion for reconsideration of OIC
Faria and Atty. Berberabe filed through the Yorac Arroyo Chua Caedo and Coronal Law
Firm (the Yorac Law Firm). The trial court held that the Yorac Law Firm was not duly
authorized to represent the HDMF; hence, it treated the motion for reconsideration as
a mere scrap of paper and opined that its filing did not toll the running of the period to
appeal. As to the HDMF, the Makati R TC, noting with approval the manifestation of

Globe Asiatique and Delfin Lee to the effect that the HDMF had not filed a motion for
reconsideration or taken an appeal, deemed the summary judgment final and executory
as to the HDMF.42
Aggrieved, the HDMF brought its petition for certiorari (C.A.-G.R. SP No. 128262).
Decisions of the CA
The CA promulgated the separate decisions now under review.
1.
C.A.-G.R. SP No. 130409
(DO.J petition assailing the April 10, 2013 writ of preliminary injunction issued by
the Pasig RTC)
On June 18, 2013, the DOJ filed the intended petition for certiorari but inadvertently did
not indicate therein the proper docket number for the case thereby causing the
assignment by the CA of a new docket number, specifically C.A.-G.R. SP No. 130409.
On June 26, 2013, the CA dismissed the DOJ's petition for certiorari in C.A.-G.R. SP
No. 130409 on the ground that it had not received a motion for extension of time to file
the petition.43
Meanwhile, on July 8, 2013, the CA issued its resolution in C.A.-G.R. SP No. 130404
denying the DOJ's motion for extension for failure of the DOJ to file the intended petition
for certiorari.
Realizing its error later on, the DOJ immediately filed a manifestation with motion to
admit petition for certiorari to clarify the mix-up and rectify its error. On August 14, 2013,
the CA denied the DOJ's manifestation with motion to admit petition for certiorari.
Hence, the DOJ filed a petition docketed as G.R. No. 208744 to assail the resolution
promulgated on July 8, 2013 in C.A.-G.R. SP No. 130404.44 As to CA-G.R. SP No.
130409, the DOJ moved for reconsideration of the CA's resolution dated June 26, 2013,
but the motion was denied on November 11, 2013.45
2.
C.A.-G.R. SP No. 128262
(HDMF Petition assailing the January 30, 2012 and December 11, 2012 resolutions
of the Makati RTC in Civil Case No. 10-1120)
On October 7, 2013, the CA promulgated its decision dismissing the HDMF petition in
C.A.-G.R. SP No. 128262,46 to wit:
WHEREFORE, there being no grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of public respondent in rendering the assailed Resolution
dated January 30, 2012 containing the Summary Judgment and the Resolution dated
36
December 11, 2012 denying HDMF, Faria and Atty. Berberabe's Motion for
Reconsideration, the instant petition is hereby DISMISSED.
SO ORDERED.
The CA opined that the HDMF had availed itself of the wrong remedy to assail the
January 3 0, 2012 summary judgment and the December 11, 2012 resolution of the
Makati RTC; and that the certiorari petition did not further show that it had been filed
under the authority of the Office of the Government Corporate Counsel, or by a private
law firm with the necessary pre-requisite conformity of the Government Corporate
Counsel and Commission on Audit.47
3.
C.A.-G.R. SP No. 121346
(Sagun Petition assailing the August 10, 2011 Review Resolution of the DOJ)
In C.A.-G.R. SP No. 121346, the CA opined that respondent Sagun's duties as the
Documentation Head of Globe Asiatique were ministerial in nature and did not require
the employment of much discretion. As the DOJ observed in its assailed Review
Resolution, Sagun's functions were limited to the collation of the documents submitted
by the borrowers/buyers through Globe Asiatique's Marketing Department, and to
ensuring that such documents were complete and duly accomplished, and to the
determination and verification from the HDMF through the submission of Membership
Status Verification whether the borrowers/buyers were really HDMF members, or had
updated contributions, or had no existing housing loans, and were thus qualified to
apply for housing loans. The CA conceded that any errors or oversights, which could
occur in the performance of Sagun's duties, should be attributed to her negligence, as
concluded in the Review Resolution.
While the DOJ asserted that the fraud could have been averted had Sagun not been
negligent, the CA explained that such negligence negated any intent to commit a crime;
hence, Sagun could not have committed the crime of estafa charged. Moreover, the
documents Sagun had reviewed were forwarded to the HDMF for evaluation and
approval; hence, the HDMF had the opportunity and the ultimate prerogative and
discretion on the documents.
Accordingly, the CA disposed in its assailed decision promulgated on October 5, 2012
in C.A.-G.R. SP No. 121346,48 viz.:
WHEREFORE, premises considered, the Petition for Certiorari and Prohibition is
hereby PARTIALLY GRANTED. Consequently, the subject Review Resolution dated
August 10, 2011 issued by respondent DOJ is SET ASIDE and DISMISSED as against
petitioner Christina Sagun.
SO ORDERED.49
4.

C.A.-G.R. SP No. 127553, C.A.-G.R. SP No. 127554, and C.A.-G.R. SP No. 127690
(respectively, the Delfin Lee Petition, Dexter Lee Petition and Alvarez Petition
assailing the May 22, 2012 and August 22, 2012 resolutions of the Pampanga
RTC)
On October 3, 2013, the CA promulgated its decision on the Alvarez petition (C.A.-G.R.
SP No. 127690),50 ruling that there was not enough evidence to implicate Atty. Alvarez;
that the RTC had merely listed the documents submitted by the task force and had not
conducted any evaluation of the evidence to determine whether or not Alvarez had
participated in the alleged grand scheme to defraud the HDMF; and that the RTC had
relied solely on the recommendation of the panel of prosecutors, which was insufficient
under prevailing jurisprudence. The disposition was as follows:
WHEREFORE, in view of the foregoing premises, the Petition for Certiorari and the
Supplemental Petition are PARTIALLY GRANTED and the assailed Resolutions dated
May 22, 2012 and August 22, 2012 of the Regional Trial Court, Branch 42 of San
Fernando City, Pampanga in so far as petitioner ALEX M. ALVAREZ is concerned are
hereby annulled and set aside. Accordingly, the warrant of arrest issued against him is
hereby LIFTED, QUASHED/RECALLED.
Meantime, since the evidence do not support the finding of probable cause against
petitioner ALEX M. ALVAREZ, public respondent court is hereby enjoined from
proceeding with Criminal Case No. 18480 as against said petitioner only.
SO ORDERED.51
On November 7, 2013, the CA promulgated its decision on Delfin Lee's petition (C.A.-
G.R. SP No. 127553), 52 decreeing:
WHEREFORE, in view of the foregoing, the instant petition is hereby PARTIALLY
GRANTED. The assailed Resolutions dated May 22, 2012 and August 22, 2012 are
hereby ANNULLED and SET ASIDE for the issuance thereof was attended with grave
abuse of discretion on thepart of public respondent Hon. Ma. Amifaith S. Fider-Reyes,
in her capacity as the Presiding Judge of the San Fernando, Pampanga RTC - Branch
42. Consequently, the Warrant of Arrest issued against petitioner Delfin S. Lee is
hereby QUASHED, RECALLED AND LIFTED. Afore-named public respondent judge
is directed to CEASE and DESIST from further proceeding with Criminal Case No.
18480 insofar as petitioner Delfin S. Lee is concerned.
Furthermore, all government agencies tasked in the enforcement of the said warrant of
arrest including but not limited to the Philippine National Police (PNP), the National
Bureau of Investigation (NBI) and the Bureau of Immigration (BI) are
immediately ENJOINED from implementing the same.
SO ORDERED.53
The CA observed that the RTC gravely abused its discretion because its conclusion on
finding probable cause to issue the arrest warrant was in the nature of speculation; that
the RTC had merely relied on the information, the Review Resolution and the six boxes
37
of documentary evidence to find and conclude that a huge amount of money had been
transferred from the HDMF to Globe Asiatique through a complex scheme that could
only have been attained through the sustained action of people in concert to commit
their criminal intention; that such findings and conclusions were not based on hard facts
and solid evidence as required by jurisprudence; that the report did not mention how
many perpetrators had conspired against the HDMF; that the parts of Delfin Lee and
his supposed cohorts in the supposed fraudulent acts committed againstthe HDMF had
not been particularly identified; that the conversion of the recommendation from the
filing of simple estafa to syndicated estafa had not been clearly explained in the Review
Resolution; that the RTC had simply adopted such findings without justifying how the
charge could be for syndicated instead of simple estafa; and that the RTC had also
issued the resolution a day immediately after the six boxes of documentary evidence
had come to its knowledge as the trial court.
The CA debunked the HDMF's argument that Delfin Lee had defrauded it into releasing
a considerable sum of money to Globe Asiatique through a complex scheme involving
fraudulent buyers. The CA noted that the Deed of Assignment with Contract to Sell and
Special Power of Attorney executed between Globe Asiatique and the HDMF showed
that the HDMF had been ultimately duty-bound to check the applications of prospective
borrowers and to approve the same; that, consequently, whatever damage the HDMF
had incurred could not be solely ascribed to Delfin Lee; that in fact the DOJ had also
endorsed the Review Resolution to the Ombudsman for the investigation of the HDMF
officers for violation of Republic Act No. 3019; and that it was confusing that Delfin Lee
had been charged separately ofanother crime instead of being joined with the officers
of the HDMF who had been referred to the Ombudsman for investigation.
On November 16, 2016, the CA promulgated its decision on Dexter's petition (C.A.-
G.R. No. 127554), declaring that the Pampanga RTC had erred in its determination of
probable cause against him;54 that the Pampanga RTC had gravely abused its
discretion when it based its assessment solely on the Review Resolution of the panel
of prosecutors, the information, and the six boxes of documents presented as evidence
by the Prosecution without making its independent assessment of the documents and
other pieces of evidence to validate the issuance of the arrest warrant issued against
Dexter.
The CA disposed thusly:
ACCORDINGLY, on the foregoing reasons, the petition is PARTIALLY GRANTED.
The assailed Resolutions dated May 22, 2012 and August 22, 2012 of Branch 42 of
Regional Trial Court of Pampanga City (sic) are ANULLED and SET ASIDE. Thus, the
Warrant of Arrest issued against petitioner Dexter L. Lee is
hereby QUASHED, RECALLED and LIFTED. Furthermore, the Regional Trial Court,
Branch 42 of San Fernando, Pampanga is directed to CEASE and DESIST from
further proceeding with Criminal Case No. 18480 insofar as petitioner Dexter L. Lee is
concerned.
Moreover, all government agencies tasked in the enforcement of the Warrant of Arrest
including but not limited to the Philippine National Police, the National Bureau of

Investigation and the Bureau of Immigration are immediately ENJOINED from
implementing the said Warrant.
SO ORDERED.55
5.
C.A.-G.R. SP No. 134573
(Salagan Petition assailing the May 22, 2012 and January 29, 2014 resolutions of
the Pampanga RTC)
Salagan claimed in C.A.-G.R. SP No. 134573 that there was no probable cause to
charge her with the crime of syndicated estafa in view of the decisions promulgated in
C.A.-G.R. SP No. 121346, C.A.-G.R. SP No. 127553, and C.A.-G.R. SP No. 127690
finding that no probable cause existed against Sagun, Delfin Lee and Atty. Alvarez,
respectively, for syndicated estafa.
The CA declared in C.A.-G.R. SP No. 134573, however, that the respondent Judge did
not gravely abuse her discretion in finding probable cause against Salagan, and upheld
the validity of the information filed in the Pampanga RTC against her; and that the
warrant of arrest had been issued upon probable cause personally determined by the
judge. 56 It ruled that the respondent Judge had properly denied Salagan's second
motion to quash the information with prayer to re-determine probable cause based on
a supervening event considering that Salagan had erroneously assumed that the
separate decisions promulgated by the CA were supervening events that justified the
re-determination of probable cause. 57
The CA disposed on March 18, 2016 in C.A.-G.R. SP No. 134573:
WHEREFORE, in view of the foregoing, the Petition
for Certiorari is DISMISSED. Accordingly, the Resolution dated May 22, 2012 and
Resolution dated January 29, 2014 of the San Fernando, Pampanga RTC, Branch 42
are hereby AFFIRMED insofar as Accused Cristina Salagan is concerned.
SO ORDERED.58
Issues
We simplify the legal issues as follows:
(l)Whether or not the HDMF availed itself of the proper remedy to assail the summary
judgment rendered by the Makati RTC (G.R. No. 209424);
(2) Whether or not there was probable cause for the filing of the information for
syndicated estafa, and for the issuance of the warrants of arrest against the
respondents for that crime (G.R. Nos. 205698, 205780, 209446, 209489, 209852,
210143, 228452, 228730 and 230680); and
(3) Whether or not the conduct of a preliminary investigation could be
enjoined (G.R. Nos. 208744 and 210095).
38
On various dates, the Court issued TROs59 to enjoin the implementation and
enforcement of the assailed CA decisions andresolutions issued in C.A.-G.R. SP No.
121346, C.A.-G.R. SP No. 127553, C.A.-G.R. SP No. 127554, and C.A.-G.R. SP No.
127690. Inasmuch as the warrants of arrest remained valid nonetheless, Delfin Lee
was arrested by virtue thereof,60 and was detained in the Pampanga Provincial Jail
since his arrest until this time.61 The other respondents have remained at large.
Ruling of the Court
We PARTIALLY GRANT the petitions in G.R. No. 205698, G.R. No. 205780, G.R. No.
209446, G.R. No. 209489, G.R. No. 209852, G.R. No. 210143, G.R. No. 228452, G.R.
No. 228730 and G.R. No. 230680, and, accordingly, MODIFY the assailed decisions
of the CA.
On the other hand, we GRANT the petitions in G.R. No. 209424, G.R. No.
208744, and G.R. No. 210095, and, accordingly, REVERSE the resolutions of the CA
assailed therein.
1.
The January 30, 2012 summary judgment was an interlocutory judgment; hence,
the HDMF correctly instituted a petition for certiorari instead of an appeal
The HDMF argues that it correctly instituted the special civil action for certiorari to assail
the resolutions of the Makati RTC dated January 30, 2012 and December 11, 2012
issued in Civil Case No. 10-1120; that the Yorac Law Firm had lawful authority to
represent the HDMF; and that the Makati RTC rendered the questioned resolutions with
grave abuse of discretion amounting to lack or excess of jurisdiction.
The HDMF's arguments are partly meritorious.
1.a.
The January 30, 2012 summary judgment was an interlocutory order
In Civil Case No. 10-1120, Globe Asiatique and Delfin Lee specifically averred separate
causes of action against the HDMF, including that for damages. Thus, they prayed for
the following reliefs, to wit:
PRAYER
WHEREFORE, it is respectfully prayed that after due proceedings, a decision be
rendered by the Honorable Court in favor of the plaintiffs and against the defendants,
ordering the following:
1. With respect to the First Cause of Action, for defendant P AGIB JG to accept the
replacement of the buyer/borrowers as offered by plaintiff GARHC contained in a list
hereto attached as Annex "O" pursuant to the latter's exercise of this option under
Section 3. 7 of the latest Funding Commitment Agreement in relation to the buyback
provision under the Memorandum of Agreement dated 13 July 2009;

2. With respect to the Second Cause of Action, for defendant PAG-IBIG FUND to
release the pending loan take-outs and amount of retention due plaintiff GARHC
pursuant to the MOA and latest FCA and for all defendants to jointly and solidarily pay
plaintiff GARHC the sum of Php 6,562,500.00, representing interest and penalty
payments;
3. With respect to the Third Cause of Action, for defendant PAGIBIG FUND to honor
the provisions of its MOA the latest FCA and CSA, to set aside the cancellation of the
FCA and CSA, and restore plaintiff GARHC to its rights under the MOA, latest FCA and
CSA;
4. With respect to the Fourth Cause of Action , for defendants to jointly and severally
pay plaintiff GARHC the sum of Php 1 Million as and by way of attorney's fees,
Php500,000.00 as and by way of litigation expenses, and cost of suit; and
5. With respect to the Fifth Cause of Action, for defendants to pay exemplary damages
in the amount of PHp500,000.00.
Plaintiffs pray for such other reliefs and remedies that the Honorable Court may deem
just and equitable in the premises.62
During the proceedings, Globe Asiatique and Delfin Lee filed the motion for summary
judgment, stating the reliefs prayed for, as follows:
PRAYER
WHEREFORE, it is respectfully prayed that after due notice and hearing, an Order be
issued granting the instant Motion for Summary Judgment and simultaneously
therewith, to render the Summary Judgment prayed for, declaring and ordering the
following:
1. That plaintiffs have proven their case by preponderance of evidence and, therefore,
are entitled to specific performance and right to damages as prayed for in the
Complaint;
2. That defendants HDMF should faithfully and religiously comply with the pertinent
provisions of the FCAs and CSAs as amended by the MOA under the prevailing
conditions prior to the precipitate unilateral termination thereof by defendant HDMF,
including but not limited to the release of loan take-out proceeds of those accounts
whose DO As with SP As have already been annotated in the corresponding TCTs as
well as the evaluation and approval of the loan applications of those who underwent or
will undergo plaintiff GARCH's loan counselling and arc qualified for PAG-IBIG loans
under the MOA and FCAs;
3. That defendant HDMF's unilateral termination of the MOA, FCAs and CSA be
declared illegal and be set aside;
4. That defendants be ordered to automatically off-set the balance of those listed in
Annex "E" hereof composed of fully-paid buyer-borrowers against the retention money,
escrow money, funding commitment fees, loan take-out proceeds and other
39
receivables of plaintiff GARHC which are still in the control and possession of defendant
HDMF;
5. That defendants be ordered to accept the replacement-buyers listed in Annex "F"
hereof, without interest or penalty from the time of defendant HDMF's refusal to accept
the same up to the time that these replacement buyers are actually accepted by
defendant HDMF;
6. That defendants be ordered to release the corresponding Transfer Certificate of
Title(s) (TCTs) of those accounts which are fully paid or subjected to automatic off-
setting starting from the list in Annex "e" of the Motion for Summary Judgment and
thereafter from those listed in Annex "F" thereof and cause the corresponding
cancellation of the annotations in the titles thereof, including that of complaint-
intervenor Tessie G. Wang's titles:
Plaintiffs pray for such other reliefs and remedies that the Honorable Court may deem
just and equitable in the premises.63
Globe Asiatique and Delfin Lee did not include the claim for damages among the reliefs
prayed for by their motion for summary judgment.
Granting the motion for summary judgment, the Makati RTC ultimately disposed:
WHEREFORE, premises considered, a Summary Judgment 1s hereby rendered
declaring that:
1. Plaintiffs have proven their case by preponderance of evidence.1avvphi1 As such,
they are entitled to specific performance and right to damages as prayed for in
the Complaint, except that the exact amount of damages will have to be
determined during trial proper.
xxxx
Let this case be set for the presentation of evidence on the exact amount of
damages that plaintiffs are entitled on March 12, 2012 at 8:30 in the morning.
SO ORDERED.64 (Bold underscoring supplied)
As the foregoing shows, the Makati R TC set the case for the presentation of evidence
to establish the other claims of Globe Asiatique and Delfin Lee stated in their complaint
for specific performance, specifically those pertaining to the fourth and fifth causes of
action. The claims related to damages, which, being still essential parts of the case,
would still have to be established and adjudicated on their merits. Although the recovery
of the damages was dependent on the determination that the HDMF had breached its
contract with Globe Asiatique, it could not yet be said that the Makati RTC had fully
disposed of the case through the summary judgment considering that there were still
other reliefs sought by Globe Asiatique and Delfin Lee yet to be tried and determined
either way. Under the circumstances, the summary judgment was, properly speaking,
but an interlocutory judgment of the Makati RTC.

In this connection, the rule on separate judgments - Section 5, Rule 36 of the Rules of
Court - is relevant.1âwphi1 The rule requires the action to proceed as to the remaining
but unresolved claims, to wit:
SEC. 5. Separate judgments. - When more than one claim for relief is presented in an
action, the court, at any stage, upon a determination of the issues material to a
particular claim and all counterclaims arising out of the transaction or occurrence which
is the subject matter of the claim, may render a separate judgment disposing of such
claim. The judgment shall terminate the action with respect to the claim so
disposed of and the action shall proceed as to the remaining claims. In case a
separate judgment is rendered, the court by order may stay its enforcement until the
rendition of a subsequent judgment or judgments and may prescribe such conditions
as may be necessary to secure the benefit thereof to the party in whose favor the
judgment is rendered. (Bold underscoring supplied for emphasis)
A partial summary judgment like that rendered on January 30, 2012 by the Makati RTC
was in the category of a separate judgment. Such judgment did not adjudicate
damages, and still directed that further proceedings be had in order to determine the
damages to which Globe Asiatique and Delfin Lee could be entitled. Section 4, Rule 3
5 of the Rules of Court thus came into operation. Section 4 states:
SEC. 4. Case not fully adjudicated on motion. – If on motion under this Rule, judgment
is not rendered upon the whole case or for all the reliefs sought and a trial is
necessary, the court at the hearing of the motion, by examining the pleadings and the
evidence before it and by interrogating counsel shall ascertain what material facts exist
without substantial controversy and what are actually and in good faith controverted. It
shall thereupon make an order specifying the facts that appear without substantial
controversy, including the extent to which the amount of damages or other relief
is not in controversy, and directing such further proceedings in the action as are
just. The facts so specified shall be deemed established, and the trial shall be
conducted on the controverted facts accordingly. (Bold underscoring supplied for
emphasis)
Worthy to emphasize is that the rendition of a summary judgment does not always
result in the full adjudication of all the issues raised in a case.65 In such event, a partial
summary judgment is rendered in the context of Section 4, supra. Clearly, such a partial
summary judgment - because it does not put an end to the action at law by declaring
that the plaintiff either has or has not entitled himself to recover the remedy he sues for
- cannot be considered a final judgment. It remains to be an interlocutory judgment or
order, instead of a final judgment, and is not to be dealt with and resolved separately
from the other aspects of the case.
In Pahila-Garrido v. Tortogo, 66 the distinctions between final and interlocutory orders
were delineated thusly:
The distinction between a final order and an interlocutory order is well known. The first
disposes of the subject matter in its entirety or terminates a particular proceeding or
action, leaving nothing more to be done except to enforce by execution what the court
has determined, but the latter does not completely dispose of the case but leaves
40
something else to be decided upon. An interlocutory order deals with preliminary
matters and the trial on the merits is yet to be held and the judgment rendered. The test
to ascertain whether or not an order or a judgment is interlocutory or final is: does the
order or judgment leave something to be done in the trial court with respect to the merits
of the case? If it does, the order or judgment is interlocutory; otherwise, it is final.
What was the proper recourse against the partial summary judgment?
Considering that the January 30, 2012 partial summary judgment was interlocutory, the
remedy could not be an appeal, for only a final judgment or order could be appealed.
Section 1, Rule 41 of the Rules of Court makes this clear enough by expressly
forbidding an appeal from being taken from such interlocutory judgment or order, to wit:
Section 1. Subject of appeal. - An appeal may be taken from a judgment or final order
that completely disposes of the case, or of a particular matter therein when declared by
these Rules to be appealable.
No appeal may be taken from:
xxxx
(f) A judgment or final order for or against one or more of several parties or in
separate claims, counterclaims, cross-claims and third party complaints, while
the main case is pending, unless the court allows an appeal therefrom; and
xxxx
In any of the foregoing circumstances, the aggrieved party may file an
appropriate special civil action as provided in Rule 65.
Consequently, the interlocutory January 30, 2012 summary judgment could be assailed
only through certiorari under Rule 65 of the Rules of Court. Thus, the HDMF properly
instituted the special civil action for certiorari to assail and set aside the resolutions
dated January 30, 2012 and December 11, 2012 of the Makati RTC.
1.b.
The Yorac Law Firm had no authority to file the HDMF's motion for
reconsideration of the January 30, 2012 summary judgment rendered by the
Makati RTC
The HDMF is a government-owned and -controlled corporation (GOCC) performing
proprietary functions with original charter or created by special law, specifically
Presidential Decree (P.D.) No. 1752, amending P.D. No. 1530. 67 As a GOCC, the
HDMF's legal matters are to be handled by the Office of the Government Corporate
Counsel (OGCC),68 save for some extraordinary or exceptional circumstances when it
is allowed to engage the services of private counsels, provided such engagement is
with the written conformity of the Solicitor General or the Government Corporate
Counsel and the written concurrence of the Commission on Audit (COA).69

In Phividec Industrial Authority v. Capitol Steel Corporation, 70 the Court underscored
that the best evidence to prove the COA's concurrence with the engagement of a
private lawyer or law firm was the written concurrence from the COA itself, viz.:
Petitioners primarily rely on a certified true copy of an Indorsement issued by COA
Regional Office No. 10 as proof of written concurrence on the part of the COA. All that
it contains is a second-hand claim that the COA General Counsel had allegedly
concurred in the retainer contract between PHIVIDEC and Atty. Adaza. The written
concurrence itself which may be the best evidence of the alleged concurrence was not
presented. It is also worth noting that the said Indorsement was dated 4 June 2002, or
approximately two years after the filing of the expropriation case by Atty. Adaza.
The records reveal that although the OGCC authorized the HDMF to engage the
services of the Yorac Law Firm, the HDMF did not sufficiently prove that the written
concurrence of the COA had been obtained.
To substantiate its claim of the COA's concurrence with the engagement of the Yorac
Law Firm's legal services, the HDMF presented the certification dated January 10,
2013,71 viz.:
CERTIFICATION
This is to certify that the Commission on Audit (COA) has concurred in the Retainer
Agreement entered into by and between the Home Development Mutual Fund (HDMF)
and Yorac, Arroyo, Chua, Caedo & Coronel Law Firm, for the latter to provide legal
services to the HDMF in connection with the cases filed by or against Globe Asiatique
Realty Holdings Corporation, Mr. Delfin S. Lee, its officers, employees and agents, and
such other cases that arose out of or in relation to the Globe Asiatique Realty Holdings
Corporation issues
This certification is issued to attest to the truth of the foregoing and for whatever legal
purposes it may serve.
10 January 2013
(signed)
ATTY. FIDELA M. TAN
Corporate Auditor
It is immediately discernible, however, that the certification was merely the attestation
by Atty. Tan that COA had concurred in the retainer agreement entered into by and
between the HDMF and the Yorac Law Firm. Such attestation did not establish the
written concurrence of the COA on the engagement of the Yorac Law Firm because it
did not state that the copy was a correct copy of the original considering that no copy
of COA's written concurrence was actually attached to the January 10, 2013
certification. Also, it did not thereby appear that Atty. Tan was the custodian of the
records of COA. As the Makati RTC further observed, the attestation had not been
made under the official seal of COA but printed only on the joint letterhead of the HDMF
41
and COA, with the latter's address being indicated to be in Mandaluyong City when the
COA's office was actually located in Commonwealth Avenue, Quezon City. 72
Atty. Tan's attestation of the COA's purported concurrence had no evidentiary value
due to its non-conformity with the requirements of Section 24 and Section 25, Rule 132
of the Rules of Court for presenting the record of a public document, to wit:
Section 24. Proof of official record. - The record of public documents referred to in
paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by
an official publication thereof or by a copy attested by the officer having the legal
custody of the record, or by his deputy, and accompanied, if the record is not kept in
the Philippines, with a certificate that such officer has the custody. x x x
Section 25. What attestation of copy must state. - Whenever a copy of a document or
record is attested for the purpose of evidence, the attestation must state, in substance,
that the copy is a correct copy of the original, or a specific part thereof, as the case may
be. The attestation must be under the official seal of the attesting officer, if there be
any, or if he be the clerk of a court having a seal, under the seal of such court. (26a)
The foregoing bolstered the fact that the attestation, being at best the second-hand
opinion of Atty. Tan as a corporate auditor who did not have the copy of the supposed
COA concurrence, could not stand as the written concurrence of the COA contemplated
by law for the purpose.
Nonetheless, even if the January 10, 2013 certification was to be regarded as the
written concurrence of the COA, the fact that it was issued and presented after the
Yorac Law Firm had entered its appearance on June 17, 2011 as counsel of the HDMF
should not go unnoticed.73 Records reveal that as of December 7, 2011, the COA was
still in the process of evaluating the request for the concurrence on the hiring by the
HDMF of the Y orac Law Firm. 74 This forthwith contravened the specific requirement
that the written conformity and acquiescence of the Solicitor General or the Government
Corporate Counsel, and the written concurrence of the COA should first be
secured prior to the hiring or employment of the private lawyer or law firm. 75
In view of the HDMF's failure to secure the written concurrence of the COA, the Yorac
Law Firm could not have been considered as authorized to represent the HDMF. With
the filing of the HDMF's motion for reconsideration vis-a-vis the January 30, 2012
summary judgment of the Makati RTC being unauthorized, the CA did not err in
upholding the Makati RTC's treatment of the HDMF's motion as a mere scrap of paper.
1.c
The broader interest of justice and the peculiar legal and equitable
circumstances herein justified the relaxation of technical rules
The import of failing to file the motion for reconsideration on the part of the HDMF meant
that the 60-day period to initiate the petition for certiorari should be reckoned from its
receipt of the assailed January 30, 2012 summary judgment. Since the HDMF actually
filed the petition for certiorari on January 18, 2013, and thus went beyond the
reglementary period, the petition should be dismissed for being filed out of time.

There are instances, however, when the rigidity of the rule requiring the petition
for certiorari to be filed within 60 days from the receipt of the judgment, order, or
resolution sought to be thereby assailed has been relaxed, such as: (1) when the most
persuasive and weighty reasons obtain; (2) when it is necessary to do so in order to
relieve a litigant from an injustice not commensurate with his failure to comply with the
prescribed procedure; (3) in case of the good faith of the defaulting party by immediately
paying within a reasonable time of the default; (4) when special or compelling
circumstances exist; (5) when the merits of the case so demand; (6) when the cause of
the delay was not entirely attributable to the fault or negligence of the party favored by
the suspension of the rules; (7) when there is no showing that the review sought is
merely frivolous and dilatory; (8) when the other party will not be unjustly prejudiced
thereby; (9) in case of fraud, accident, mistake or excusable negligence without the
appellant's fault; (10) when the peculiar legal and equitable circumstances attendant to
each case so require; (11) when substantial justice and fair play are thereby served;
(12) when the importance of the issues involved call for the relaxation; (13) in the
exercise of sound discretion by the court guided by all the attendant circumstances;
and (14) when the exceptional nature of the case and strong public interest so
demand.76
Herein, the broader interest of justice and the attendant peculiar legal and equitable
circumstances dictated that the HDMF's petition for certiorari be resolved on its merits
despite its filing beyond the reglementary period. The HDMF believed in good faith that
it had duly filed the motion for reconsideration vis-a-vis the January 30, 2012 summary
judgment. Although the Makati RTC noted the HDMF's failure to secure the COA's
concurrence, and resolved to treat the HDMF's motion for reconsideration as a mere
scrap of paper, the reglementary period to file the petition for certiorari had already
lapsed, such failure to file on time was not entirely attributable to the fault or negligence
of the HDMF.
2.
There was no probable cause for the filing of the information for
syndicated estafa and for the issuance of the warrants of arrest for syndicated
estafa against respondents
Delfin Lee, Dexter, Sagun and Alvarez were charged with syndicated estafa, along with
Cristina Salagan, on the basis of the findings of the DOJ that Globe Asiatique had
violated its warranties under the FCAs and the July 13, 2009 MOA; that Globe Asiatique
had submitted spurious and questionable documents concen1ing the qualifications of
its buyers; that Globe Asiatique had employed fictitious buyers to obtain funds from the
HDMF; and that Globe Asiatique had failed to remit to the HDMF the monthly housing
loan amortizations of its buyers in the Xevera Project in Pampanga. 77
The DOJ concluded thusly:
Given the foregoing the above-named respondents may be charged with the crime of
"syndicated estafa" as they fall within the legal definition of a syndicate. A syndicate is
defined as "consisting of five or more persons formed with the intention of carrying out
the unlawful or illegal act, transaction, enterprise or scheme and the defraudation
42
results in the misappropriation of money contributed by stockholders, or members of
rural banks, cooperative, '"samahang nayon(s)", or farmers association, or of funds
solicited by corporations/associations from the general public. (Paragraph 1, Section 1,
P.D. No. 1689; People of the Philippines v. Vicente Menil, G.R. Nos 115054-66,
September 12, 2009).
xxxx
Having earlier established respondents' commission of estafa, it is pristine clear that
the 1st and 2nd elements of the offense of syndicated estafa has already been satisfied
in the instant case. Relative to the 3rd element, we believe that HDMF falls under the
entities listed in P.D. 1689 that can be victimized under such law, as the provision
specifically includes entities which solicited funds from the general public. x x x
It is our considered view that HDMF is, in all respect, a corporation that solicited funds
from the general public, which respondents defrauded through the execution of their
illegal scheme. We find as childish respondents' Delfin and Dexter Lee's argument that
the Pag-Ibig fund is a mandatory contribution and does not fall under the term "solicited
funds from the public." It bears to highlight that P.D. 1689 does not distinguish whether
the solicited fund is a voluntary or mandatory contribution. Rather, the essential point
is that the funds used by HDMF came from the general public. 78
On its part, the Pampanga R TC found probable cause for the issuance of warrants of
arrest against the respondents only because –
The records would show a huge amount of money that was transferred from the coffers
of the PAG IBIG FUND and released to the GLOBE ASIATIQUE through a complex
scheme involving fraudulent buyers at a scale and over a period of time that could only
have been accomplished by and through the sustained supervision and action in
concert of a group of persons for the attainment of the same criminal objective. Hence,
the Court finds probable cause for the existence of a syndicated estafa. 79
The crucial questions before us relate to: (1) the DOJ's finding of probable cause for
the filing of the information against Sagun; and (2) the Pampanga RTC's judicial
determination of probable cause for the issuance of the warrant of arrest against the
respondents.
The concept of probable cause has been discussed in Napoles v. De Lima80 as follows:
x x x During preliminary investigation, the prosecutor determines the existence of
probable cause for filing an information in court or dismissing the criminal complaint.
As worded in the Rules of Court, the prosecutor determines during preliminary
investigation whether "there is sufficient ground to engender a well-founded belief that
a crime has been committed and the respondent is probably guilty thereof, and should
be held for trial." At this stage, the determination of probable cause is an executive
function. Absent grave abuse of discretion, this determination cannot be interfered with
by the courts. This is consistent with the doctrine of separation of powers.
On the other hand, if done to issue an arrest warrant, the determination of probable
cause is a judicial function. No less than the Constitution commands that "no . . . warrant

of arrest shall issue except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the complainant and the witnesses
he may produce[.]" This requirement of personal evaluation by the judge is reaffirmed
in Rule 112, Section 5 (a) of the Rules on Criminal Procedure:
SEC. 5. When warrant of arrest may issue.-
(a) By the Regional Trial Court. - Within ten (10) days from the filing of the complaint or
information, the judge shall personally evaluate the resolution of the prosecutor and its
supporting evidence. He may immediately dismiss the case if the evidence on record
clearly fails to establish probable cause. If he finds probable cause, he shall issue a
warrant of arrest, or a commitment order when the complaint or information was filed
pursuant to section 6 of this Rule. In case of doubt on the existence of probable cause,
the judge may order the prosecutor to present additional evidence within five (5) days
from notice and the issue must be resolved by the court within thirty (30) days from the
filing of the complaint or information. (Emphasis supplied)
Therefore, the determination of probable cause for filing an information in court and that
for issuance of an arrest warrant are different. Once the information is filed in court, the
trial court acquires jurisdiction and "any disposition of the case as to its dismissal or the
conviction or acquittal of the accused rests in the sound discretion of the Court."
While the courts are generally not permitted to substitute their own judgments for that
of the Executive Branch in the discharge of its function of determining the existence of
probable cause during the preliminary investigation, 81 the intervention of the courts may
be permitted should there be grave abuse of discretion in determining the existence of
probable cause on the part of the investigating prosecutor or the Secretary of Justice.
Thus, in order to settle whether or not the CA correctly reversed the August 10,
2011 Review Resolution of the DOJ insofar as it found probable cause to charge Sagun
with syndicated estafa, and whether or not the warrants of arrest issued against the
respondents should be quashed, it is imperative to discuss the nature of
syndicated estafa.
Section 1 of P.D. No. 1689 defines syndicated estafa in the following manner:
SECTION 1. Any person or persons who shall commit estafa or other forms of swindling
as defined in Article 315 and 316 of the Revised Penal Code, as amended, shall be
punished by life imprisonment to death if the swindling (estafa) is committed by a
syndicate consisting of five or more persons formed with the intention of carrying out
the unlawful or illegal act, transaction, enterprise or scheme, and the defraudation
results in the misappropriation of money contributed by stockholders or members of
rural banks, cooperative, "samahang nayon(s)", or farmer's association, or of funds
solicited by corporations/associations from the general public.
When not committed by a syndicate as above defined, the penalty imposable shall
be reclusion temporal to reclusion perpetua if the amount of the fraud exceeds 100,000
pesos.
43
P.D. No. 1689 seeks to impose a harsher penalty on certain forms of swindling, more
particularly, syndicated estafa. The preamble of the decree recites:
WHEREAS, there is an upsurge in the commission of swindling and other forms of
frauds in rural banks, cooperatives, "samahang nayon (s)'', and farmers' associations
or corporations/associations operating on funds solicited from the general public;
WHEREAS, such defraudation or misappropriation of funds contributed by
stockholders or members of such rural banks, cooperatives, "samahang nayon(s)", or
farmers' associations, or of funds solicited by corporations/associations from the
general public, erodes the confidence of the public in the banking and cooperative
system, contravenes the public interest, and constitutes economic sabotage that
threatens the stability of the nation;
WHEREAS, it is imperative that the resurgence of said crimes be checked, or at least
minimized, by imposing capital punishment on certain forms of swindling and other
frauds involving rural banks, cooperatives, "samahang nayon(s)", farmers' associations
or corporations/associations operating on funds solicited from the general public.
P.D. No. 1689 condemns the taking by fraud or deceit of funds contributed by members
of rural banks, cooperatives, samahang nayon or farmers' associations, or of funds
solicited by corporations or associations from the general public as such taking poses
a serious threat to the general public. The elements of syndicated estafa are:
(a) estafa or other forms of swindling, as defined in Articles 315 and 316 of the Revised
Penal Code, is committed; (b) the estafa or swindling is committed by a syndicate of
five or more persons; and (c) defraudation results in the misappropriation of moneys
contributed by the stockholders, or members of rural banks, cooperative, samahang
nayon(s), or farmers' associations, or of funds solicited by corporations/associations
from the general public.82
In relation thereto, Article 315(2)(a) of the Revised Penal Code specifies that:
Art. 315. Swindling (estafa). - Any person who shall defraud another by any means
mentioned herein below shall be punished by:
xxxx
2. By means of any of the following false pretenses or fraudulent acts executed prior to
or simultaneously with the commission of the fraud:
(a) By using a fictitious name, or falsely pretending to possess power, influence,
qualifications, property, credit, agency, business, or imaginary transactions; or by
means of other similar deceits.
xxxx
The elements of estafa by means of deceit under Article 315(2)(a) of the Revised Penal
Code are, namely: (a) that there must be a false pretense or fraudulent representation
as to his power, influence, qualifications, property, credit, agency, business or
imaginary transactions; (b) that such false pretense or fraudulent representation was

made or executed prior to or simultaneously with the commission of the fraud; (c) that
the offended party relied on the false pretense, fraudulent act, or fraudulent means and
was induced to part with his money or property; and (d) that as a result thereof, the
offended party suffered damage. 83
Based on the foregoing elements of syndicated estafa, the Court holds that the CA did
not err in reversing the August 10, 2011 Review Resolution of the DOJ insofar as
Sagun was concerned and in quashing the warrants of arrest issued against the
respondents. In the same manner, we find and so hold that the CA erred in upholding
the propriety of the issuance of the warrant of arrest against Salagan.
2.a
In the case of the respondents, there was no syndicate as defined under P.D. No.
1689
A syndicate is defined by P.D. No. 1689 as consisting of five or more persons formed
with the intention of carrying out the unlawful or illegal act, transaction,
enterprise or scheme.84 The Court has clarified in Remo v. Devanadera85that in order
for any group to be considered a syndicate under P.D. No. 1689 –
On review of the cases applying the law, we note that the swindling syndicate used
the association that they manage to defraud the general public of funds
contributed to the association. Indeed, Section 1 of Presidential Decree No. 1689
speaks of a syndicate formed with the intention of carrying out the unlawful scheme for
the misappropriation of the money contributed by the members of the association. In
other words, only those who formed [or] manage associations that receive
contributions from the general public who misappropriated the contributions can
commit syndicated estafa. x x x. (Emphasis supplied).
xxxx
Dissecting the pronouncement in Galvez for our present purposes, however, we are
able to come up with the following standards by which a group of purported swindlers
may be considered as a syndicate under PO No. 1689:
1. They must be at least five (5) in number;
2. They must have formed or managed a rural bank, cooperative, "samahang
nayon," farmer's association or any other corporation or association that solicits funds
from the general public.
3. They formed or managed such association with the intention of carrying out an
unlawful or illegal act, transaction, enterprise or scheme i.e., they used the very
association that they formed or managed as the means to defraud its own stockholders,
members and depositors.
None of the three abovementioned standards for determining the existence of a
syndicate was present.
44
Delfin Lee, Dexter, Sagun, and Salagan were, respectively, the President/Chief
Operating Officer, Executive Vice-President, Head of the Documentation Department,
and Head of the Accounting/Finance Department of Globe Asiatique. 86 In view of their
number being under five, the original charge brought against them was only for
simple estafa. It was only in the assailed Review Resolution of August 10, 2011 that
SDSP Villanueva recommended the filing of the charge for syndicated estafa due to
the addition of Atty. Alvarez as a co-respondent, thereby increasing the number of the
respondents to at least five. But Atty. Alvarez was the Manager of the HDMF's
Foreclosure Department87 whose only connection with Globe Asiatique was by reason
of his having rendered notarial services for the latter. 88 If Atty. Alvarez was not related
to Globe Asiatique either by employment or by ownership, he could not be considered
as part of the syndicate supposedly formed or managed to defraud its stockholders,
members, depositors or the public. This alone immediately removed the
respondents' supposed association from being found and considered as a syndicate in
the context of P.D. No. 1689.
Even assuming that Atty. Alvarez was juridically connected with Globe Asiatique in the
context of P.D. No. 1689, the association of the respondents did not solicit funds from
the general public. Globe Asiatique was incorporated in 1994 as a legitimate real-estate
developer "to acquire by purchase, lease, donation or otherwise, to own, use, improve,
develop, subdivide, sell, mortgage, exchange, lease, develop and hold for investment
or otherwise, real estate of all kinds, whether improve, manage, or otherwise dispose
of buildings, houses, apartments, and other structures of whatever kind, together with
their appurtenances."89 It is quite notable, too, that there was no allegation about Globe
Asiatique having been incorporated to defraud its stockholders or members. In fact, the
HDMF, the only complainant in the estafa charges, was not itself a stockholder or
member of Globe Asiatique.
Moreover, the DOJ concluded that it was the HDMF itself, not Globe Asiatique, that had
solicited funds from the public, to wit:
x x x HDMF falls under the entities listed in PD 1689 that can be victimized under such
law, as the provisions specifically includes entities which solicited funds from the
general public. x x x
xxxx
It is our considered view that HDMF is, in all respect, a corporation that solicited
funds from the general public, which respondents defrauded through the
execution of their illegal scheme.
We find as childish respondents' Delfin and Dexter Lee's argument that the Pag-
ibig fund is a mandatory contribution and does not fall under the term "solicited
funds from the public." It bears to highlight that P.D. 1689 does not distinguish
whether the solicited fund is voluntary or mandatory contribution. Rather, the
essential point is that the funds used by HDMF came from the general public.90

The funds solicited by HDMF from the public were in the nature of their contributions
as members of HDMF, and had nothing to do with their being a stockholder or member
of Globe Asiatique.
It is further worth noting that the funds supposedly misappropriated did not belong to
Globe Asiatique's stockholders or members, or to the general public, but to the HDMF.
The pecuniary damage pertained to the FCLs extended to Globe Asiatique through
ostensibly fictitious buyers and unremitted monthly housing loan amortizations for the
Xevera Project in Pampanga that were supposedly collected by Globe Asiatique in
behalf of the HDMF pursuant to the FCLs and MOA.
Based on the established circumstances, therefore, it becomes inevitable for the Court
to affirm the CA's following conclusion that:
x x x [T]he statement made by public respondent that there is probable cause because
"xxx a huge amount of money was transferred from the coffers of respondent HDMF
and released to GA through a complex scheme xxx that could only have been
accomplished by and through the sustained supervision and action in concert of a group
of persons for the attainment of the same criminal objective," to be in the nature of a
speculation only and carries no weight in the determination of probable cause.
Jurisprudence dictates that in the determination of probable cause, the same should be
based on hard facts and solid evidence and not dwell on possibilities, suspicion and
speculation. From the aforequoted paragraph alone, petitioner's (Delfin Lee)
participation, if there was any, in the offense for which he was indicted, was not
established or ascertained. Worse, petitioner was not even named. Neither were his
cohorts in the alleged defrauding of respondent HDMF.
Petitioner Lee and his co-accused were charged with syndicated estafa. For estafa to
have been committed by a syndicate, the act must be committed by five or more
persons. A considered scrutiny of the assailed Resolution by public respondent which
found probable cause to issue a warrant of arrest against petitioner Lee and his co-
accused, shows that there was no mention that the acts constituting estafa were done
by five or more persons. The resolution merely mentioned "could only have been
accomplished by and through the sustained supervision and action in concert of a group
of persons for the attaim1ient of the same criminal objective." Moreover, the amount of
damage incurred by respondent HDMF was not ascertained. It goes without saying that
public respondent did not take it upon herself to determine, based on the evidence
submitted, the exact amount of damage incurred by respondent HDMF. Public
respondent merely made a sweeping statement that a huge amount of money was
transferred from the coffers of the PAG-IBIG Fund to GA.
Under the canons of statutory construction, indeed, the determination of the purpose of
the law is a step in the process of ascertaining the intent or meaning of the enactment,
because the reason for the enactment must necessarily shed considerable light on "the
law of the statute," i.e., the intent; hence, the enactment should be construed with
reference to its intended scope and purpose, and the courts should seek to carry out
this purpose rather than to defeat it.91 Given the rationale and purpose behind the
enactment of P.D. No. 1689, it becomes inevitable to conclude that the crime of
45
syndicated estafa can only be committed by the enumerated groups created for the
sole purpose of defrauding its members through misappropriating the funds solicited
from and contributed by them. Evidently, the evil sought to be prevented by P.D.No.
1689 does not exist in this case.
2.b
Notwithstanding the absence of a syndicate, the respondents made false
representations that gave rise to probable cause for simple estafa against them
In Galvez v. Court of Appeals, 92 the Court has emphasized that swindling may fall
within the ambit of P.D.No. 1689 if it is committed through an association. On the other
hand, Article 315(2)(a) of the Revised Penal Code applies regardless of the number of
the accused when: (a) the entity soliciting funds from the general public is the victim
and not the means through which the estafa is committed, or (b) the offenders are not
owners or employees who used the association to perpetrate the crime.
Having shown that the alleged misappropriation was not committed through Globe
Asiatique, we now address whether or not the acts of the respondents gave rise to
probable cause for simple estafa under Article 315(2)(a) of the Revised Penal Code.
An examination of the records reveals that there is sufficient basis to support a
reasonable belief that the respondents were probably guilty of simple estafa. The first
three elements of estafa under Article 315(2)(a) of the Revised Penal Code -- (a) that
there must be a false pretense or fraudulent representation as to his power, influence,
qualifications, property, credit, agency, business or imaginary transactions; (b) that
such false pretense or fraudulent representation was made or executed prior to or
simultaneously with the commission of the fraud; and (c) that the offended party relied
on the false pretense, fraudulent act, or fraudulent means and was induced to part with
his money or property - obtained in this case.
The nature and character of deceit or fraud were explained in Lateo v. People,93 to wit:
[F]raud in its general sense is deemed to comprise anything calculated to deceive,
including all acts, omissions, and concealment involving a breach of legal or equitable
duty, trust, or confidence justly reposed, resulting in damage to another, or by which an
undue and unconscientious advantage is taken of another. It is a generic term
embracing all multifarious means which human ingenuity can device, and which are
resorted to by one individual to secure an advantage over another by false suggestions
or by suppression of truth and includes all surprise, trick, cunning, dissembling and any
unfair way by which another is cheated. And deceit is the false representation of a
matter of fact whether by words or conduct, by false or misleading allegations, or by
concealment of that which should have been disclosed which deceives or is intended
to deceive another so that he shall act upon it to his legal injury.
The first two elements of estafa under Article 315(2)(a) of the Revised Penal Code are
satisfied if the false pretense or fraudulent act is committed prior to or simultaneously
with the commission of the fraud, it being essential that such false statement or

representation constitutes the very cause or the only motive that induces the offended
party to part with his money.94
In this connection, the DOJ underscored in its assailed Review Resolution that the
fraudulent scheme employed by the respondents involved the "special buyers"
arrangement. According to the sinumpaang salaysay of witnesses Francisco de la Cruz
and Veniza Santos Panem, former employees of Globe Asiatique, the "special buyers"
arrangement required:
x x x those who are not yet members of Pag-ibig Fund but who are paid by GA to apply
for, and become members of the Fund in exchange of ₱5,000.00 so that their names
membership can be used to take out a housing loan from Pag-ibig of units from housing
projects of GA. They assert that these special buyer have really no intention to buy
housing units from GA projects but merely lend their Pag-ibig Fund membership to GA
for a fee on condition that they will not apply for a loan with Pag-Ibig for a period of two
(2) years. The agents/employees of GA are the ones who recruit these "special buyers"
also for a commission. They explain that once recruited, these "special buyers" are told
to sign loan documents for Pag-Ibig but they will not occupy the housing units for which
they applied for a housing loan. These units taken out by Pag-ibig for GA's "special
buyers" are then sold to real buyers who buy direct from GA. Whenever real buyers
complaint that the units they bought had not yet been taken-out, they are made to
execute an Affidavit of Undertaking that they are willing to assume the balance on the
loan of the "special buyer" and GA will make it appear to Pag-Ibig that the "special
buyer" has changed his mind so that the property could then be transferred to the real
buyer. They further claim that there are more than "special buyers" than real buyers of
GA and that its owners, respondents Delfin and Dexter Lee, themselves ordered the
employees to recruit "special buyers".
Witness Panem also asserted in her Sinumpaang Salaysay that "special buyers" are
also employed by GA in its transactions with banks, like the RCBC and PNB. One of
the enticement for these "special buyers", aside from the ₱5,000.00 fee, is that they are
assured that they will not pay for the housing loan they applied for with Pag-Ibig as in
fact it is GA that pays for their housing loans. She also alleged that GA's employees
sometimes use fictitious names as "special buyers".95
Allegedly using the "special buyers" scheme, Globe Asiatique entered into the FCAs
with the HDMF during the period from August 12, 2008 to July 10, 2009 wherein Globe
Asiatique represented that: (a) the buyers of its real estate projects were members of
Pag-Ibig, hence, qualified to apply for the takeout loans under the Pag-Ibig Housing
Loan Program; (b) the members-borrowers and their respective housing loan
applications had been properly evaluated and approved in accordance with the
applicable guidelines of the Pag-Ibig Housing Loan Program prior to their endorsement
to the Pag-Ibig Fund; (c) that all documents submitted to the Pag-Ibig Fund, inclusive
of the individual titles and the corresponding Deeds of Assignment, were valid, binding,
and enforceable in all other respects that they purported to be; (d) that any person or
agent employed or allowed to transact or do business in its behalf had not committed
any act of misrepresentation; and (e) that all pertinent laws, rules and regulations had
46
been complied with, among others.96 As the result thereof, the HDMF extended the
FCLs in favor of Globe Asiatique amounting to ₱2.9 billion.
On July 13, 2009, the MOA was forged between the HDMF and Globe Asiatique for the
latter to again avail of a loan takeout from the HDMF. Accordingly, additional FCAs
were extended to Globe Asiatique totaling ₱3.55 billion. While the MOA did not contain
the same representations made in the previous FCAs, it nevertheless required Globe
Asiatique to undertake the following corrective measures in case defects in the HDMF
membership and housing loan eligibilities of the buyers should arise, namely:
1) Require the borrower to complete the required number of contributions, in case the
required 24 monthly contributions is not met;
2) Require the borrower to update membership contributions, in case the membership
status is inactive;
3) Require the borrower to update any existing Multi-Purpose Loan (MPL) if its in
arrears or pay in full if the same has lapsed;
4) Buyback the account in case the member has a HDMF housing loan that is
outstanding, cancelled, bought back, foreclosed or subject of dacion-en-pago. 97
Had Globe Asiatique, through the respondents, not made the foregoing representations
and undertaking, the HDMF would not have entered into the FCAs and granted the loan
takeouts to Globe Asiatique to its damage and prejudice.
We next determine the individual participation of the respondents in the "special buyers"
scheme.
In Ching v. Secretary of Justice,98 the Court declared that corporate officers or
employees through whose act, default or omission the corporation commits a crime
were themselves individually guilty of the crime. The Court expounded why:
The principle applies whether or not the crime requires the consciousness of
wrongdoing. It applies to those corporate agents who themselves commit the crime and
to those, who, by virtue of their managerial positions or other similar relation to the
corporation, could be deemed responsible for its commission, if by virtue of their
relationship to the corporation, they had the power to prevent the act. Moreover, all
parties active in promoting a crime, whether agents or not, are principals.. Whether
such officers or employees are benefited by their delictual acts is not a touchstone of
their criminal liability. Benefit is not an operative fact.
The DOJ aptly noted that the following acts of the respondents rendered them criminally
accountable for perpetrating the "special buyers" scheme and causing pecuniary
damage to the HDMF: Delfin Lee, for signing the FCAs and MOA in behalf of Globe
Asiatique, and the checks issued by Globe Asiatique to the "'special buyers" and the
HDMF;99 Dexter, for giving the orders to recruit "special buyers" and co-signing those
checks issued to the special buyers and HDMF; 100 Sagun, head of Globe Asiatiques's
Documentation Department, for collating the documents submitted by the
borrowers/buyers, checking if the same are complete and duly accomplished, and for

verifying whether or not said borrowers/buyers are indeed Pag-Ibig members with
updated contributions or existing housing loans; 101 and Salagan, head of Globe
Asiatique's Accounting/Finance Department, for reviewing all requests for payment
from on-site projects and preparing the corresponding checks, ensuring that all loan
takeouts are duly recorded, and that amortizations are timely remitted to HDMF. 102
We agree that the concerted acts of the respondents could manifest a common criminal
design to make it appear that Globe Asiatique had numerous qualified
borrowers/buyers that would satisfy the HDMF's conditions for the loan takeouts. Their
acts, taken collectively, would probably support a charge of conspiracy, and suggest
that they participated in the transactions with a view to furthering the common design
and purpose. 103
As for Atty. Alvarez, we do not subscribe to the CA's view that his act of notarizing
various documents, consisting of the individual buyer's affidavit of income, promissory
note and developer's affidavit, which were material for the processing and approval of
the transactions, 104 was insufficient to establish his having been part of the conspiracy
in the execution of the "special buyers" scheme. In our view, the DOJ had reasonable
basis to hold against him thusly:
x x x Atty. Alvarez knew, participated and consented to the illegal scheme perpetrated
by respondents Delfin and Dexter Lee, Christina Sagun and Cristina Salagan. It should
be underscored that Atty. Alvarez notarized crucial pieces of documents, consisting of
the buyer's affidavit of income, promissory note, and developer's affidavit (by Ms.
Cristina Sagun) alleging compliance with the conditions set by HDMF, all of which are
essential for the processing and approval of the purported transaction. We also find the
defense of Atty. Alvarez as self-serving, to say the least, considering that part of his job
as a notary public is to ascertain the identity of the affiant appearing before him. As it
turns out, a large number of the said affiants are either fictitious and/or non-existing,
thereby enabling the execution of the grand scheme of his co-respondents. It bears to
note that his actions, apart from evidencing his conspiracy, assent and/or cooperation
in the accomplishment of the fraud, also constitutes a clear violation of Section 7,
Paragraph B (2) of Republic Act No. 6713. also known as the Code of Conduct and
Ethical Standards for Public Officials and Employees. 105
In view of the foregoing: the amendment of the information to charge simple estafa is
warranted pursuant to Hao v. People, 106 to wit:
With our conclusion that probable cause existed for the crime of simple estafa and that
the petitioners have probably committed it, it follows that the issuance of the warrants
of arrest against the petitioners remains to be valid and proper. To allow them to go
scot-free would defeat rather than promote the purpose of a warrant of arrest, which is
to put the accused in the court's custody to avoid his flight from the clutches of justice.
Moreover, we note that simple estafa and syndicated estafa are not two entirely
different crimes. Simple estafa is a crime necessarily included in syndicated estafa. An
offense is necessarily included in another offense when the essential ingredients of the
former constitute or form a part of those constituting the latter.
47
Under this legal situation, only a formal amendment of the filed information under
Section 14, Rule 110 of the Rules of Court is necessary; the warrants of arrest issued
against the petitioners should not be nullified since probable cause exists for
simple estafa.
3.
The conduct of the preliminary investigation by the DOJ was invalidly enjoined
In support of its move to reverse and set aside the adverse resolutions of the CA, the
DOJ argues in C.A.-G.R. No. 208744 and C.A.-G.R. No. 210095 that the CA should
not have dismissed its petition for certiorari for being allegedly filed out of time because
there existed special and compelling reasons to justify the relaxation of the procedural
rules. Worthy to note is that the CA had denied petitioner's motion for special extension
of time to file the petition for certiorari because there was no compelling reason to
extend the period for doing so.
Under Section 4, 107 Rule 65 of the Rules of Court, as amended by A.M. No. 07-7-12-
SC, any aggrieved party has a non-extendible period of 60 days from receipt of the
assailed decision, order or resolution within which to file the petition for certiorari. The
period is non-extendible to avoid causing any unreasonable delay that would violate
the constitutional rights of parties to the speedy disposition of the case. 108 Regrettably,
when the DOJ finally filed the petition for certiorari during the extended period sought,
the petition lacked the proper docket number due to inadvertence, which prompted the
CA to assign a new docket number to the petition. This move on the part of the CA
resulted in the outright dismissal of the petition for having been filed beyond the
reglementary period.
In view of the obtaining circumstances, we find merit in the DOJ's argument.
In Vallejo v. Court of Appeals,109 the Court allowed the petition filed almost four months
beyond the reglementary period to proceed. We emphasized therein that meritorious
cases should be allowed to proceed despite their inherent procedural defects and
lapses in keeping with the principle that the rules of procedure were but tools designed
to facilitate the attainment of justice, and that the strict and rigid application of rules that
would allow technicalities to frustrate rather than promote substantial justice must
always be avoided. The Court explained that excusing a technical lapse and affording
the parties a review of the case to attain the ends of justice, instead of disposing of the
case on technicality and thereby causing grave injustice to the parties, would be a far
better and more prudent course of action.
Time and again, the Court, in resolving the OSG's requests for extension, has taken
cognizance of the heavy workload of that office. It should not be any different now.
Worthy to note is that the OSG, representing the DOJ, offered suitable explanations
and apologies, like the associate solicitor in charge of filing the petition having been
rushed to the hospital and thus being denied the opportunity to supervise or see to the
filing of the intended petition. Also, the omission of the docket number from the petition
that was ultimately filed did not look as if it was aimed either to delay the proceedings
or to confuse the CA. The explanation for the delay in the filing of the petition in the CA

tendered by the OSG thereon, coupled with its invocation of liberality or the relaxation
of the rules, was fully acceptable. As such, the petition should be allowed to proceed.
We further find that the CA's dismissal of the petition was disproportionate to the
inadvertence committed considering the substantial merits of the DOJ's case. Verily,
the petition deserves to be given due course and resolved in view of the fact that the
injunction issued by the RTC against the DOJ on the conduct of the preliminary
investigation was a patent nullity on its very face.
We now go to the merits of the petitions in C.A.-G.R. No. 208744 and C.A.-G.R.
No. 210095.
The Pasig RTC issued the assailed April 10, 2013 order enjoining the DOJ from
proceeding with the preliminary investigation of the second, third, and fourth complaints
for syndicated estafa against Globe Asiatique, et al. because of its impression that the
summary judgment rendered by the Makati RTC in favor of Globe Asiatique had
effectively removed the indispensable element of damage from the criminal
complaints. 110 The Pasig RTC undeniably gravely abused its discretion in issuing the
writ of preliminary injunction.
It is an established judicial policy that injunction cannot be used as a tool to thwart
criminal prosecutions because investigating the criminal acts and prosecuting their
perpetrators right away have always been in the interest of the public. Such policy is
intended to protect the public from criminal acts. The Pasig RTC could not feign
ignorance of such policy, especially considering that the CA's previous ruling against
its issuance of a writ of preliminary injunction had been affirmed by this Court with
finality. The CA also observed then:
[I]njunction will not lie to enjoin a criminal prosecution because public interest requires
that criminal acts be immediately investigated and protected (sic) for the protection of
society. It is only in extreme cases that injunction will lie to stop criminal prosecution.
Public respondent Judge anchored his issuance of the writ on the existence of a
prejudicial question. However, this Court finds that the facts and issues in the Makati
civil case are not determinative of Lee's guilt or innocence in the cases filed before the
DOJ. Verily public respondent Judge committed grave abuse of discretion amounting
to lack of or in excess of jurisdiction when he issued the writ of preliminary injunction
enjoining the DOJ from filing an information of estafa against Lee in the first DOJ case
and from proceeding with the preliminary investigation in the second DOJ case. 111
We emphasize yet again that the conduct of a preliminary investigation, being executive
in nature, was vested in the DOJ. As such, the injunction issued by the Pasig RTC
inexcusably interfered with the DOJ's mandate under Section 3(2), Chapter 1; Title III,
Book IV of the Administrative Code of 1987 to investigate the commission of crimes
and to prosecute the offenders.
Equally worthy of emphasis is that the ruling of the CA in C.A.-G.R. SP No. 121594
attained finality after the Court reviewed such ruling in G.R. No. 201360. Considering
that the petitions against the DOJ arose from the same factual milieu and sought the
same relief, which was to restrain the DOJ from conducting preliminary investigations
against Globe Asiatique and its officers and employees upon the complaints filed before
48
the DOJ, and considering further that the cases involved the same parties and reprised
the arguments, the doctrine of the law of the case certainly applied to bar a different
outcome. At the very least, the Pasig RTC should have been very well instructed
thereby, and should have avoided the incongruous situation of ignoring what was
already the clear law of the case.
The doctrine of the law of the case precludes departure in a subsequent proceeding
essentially involving the same case from a rule previously made by an appellate court.
Applying this doctrine, the Court in Land Bank of the Philippines v. Suntay112 held that:
We underscore that Land Bank v. Suntay (G.R. No. 157903) was the appropriate case
for the determination of the issue of the finality of the assailed RARAD Decision by
virtue of its originating from Land Bank's filing on April 20, 2001 of its petition for judicial
determination of just compensation against Suntay and RARAD Miñas in the RTC
sitting as a Special Agrarian Court. Therein, Suntay filed a motion to dismiss mainly on
the ground that the petition had been filed beyond the 15-day reglementary period as
required by Section 11, Rule XIII of the Rules of Procedure of DARAB. After the RTC
granted the motion to dismiss, Land Bank appealed to the CA, which sustained the
dismissal. As a result, Land Bank came to the Court (G.R. No. 157903), and the Court
then defined the decisive issue to be: "whether the RTC erred in dismissing the Land
Bank's petition for the determination of just compensation."
The Court ruled in favor of Land Bank. For both Land Bank and Suntay (including his
assignee Lubrica), the holding in Land Bank v. Suntay (G.R. No. 157903) became the
law of the case that now controlled the course of subsequent proceedings in the RTC
as a Special Agrarian Court. In Cucueco v. Court of Appeals, the Court defined law of
the case as "the opinion delivered on a former appeal." Law of the case is a term
applied to an established rule that when an appellate court passes on a question and
remands the case to the lower court for further proceedings, the question there settled
becomes the law of the case upon subsequent appeal. It means that whatever is once
irrevocably established as the controlling legal rule or decision between the same
parties in the same case continues to be the law of the case, whether correct on general
principles or not, so long as the facts on which such decision was predicated continue
to be the facts of the case before the court. With the pronouncement in G.R. No. 157903
having undeniably become the law of the case between the parties, we cannot pass
upon and rule again on the same legal issue between the same parties. 113
Indeed, the issue submitted for the Pasig RTC's dete1n1ination had been resolved by
the CA in CA-G.R. SP No. 121594 to the effect that the Pasig RTC could not enjoin the
DOJ from proceeding with the preliminary investigation of the second complaint. As far
as the parties were concerned, therefore, the propriety of the DOJ's conduct of the
preliminary investigation was no longer an unresolved issue. But by issuing the writ of
preliminary injunction yet again to prevent the preliminary investigation of the second
and subsequent complaints by the DOJ, the Pasig RTC acted with manifest
whimsicality that amounted to gross and patent abuse of discretion. Such action was
void and ineffectual.
WHEREFORE, the Court GRANTS:
 49

(1) The petitions for review on certiorari in G.R. No. 209424 and,
accordingly, ANNULS and SETS ASIDE the decision promulgated on October 7, 2013
by the Court of Appeals in C.A.-G.R. No. SP No. 128262; REVERSES the resolution
of December 11, 2012 issued in Civil Case No. 10-1120 by the Regional Trial Court,
Branch 58, in Makati City declaring the partial summary judgment rendered on January
30, 2012 final and executory; PRONOUNCES that the partial summary judgment
rendered on January 30, 2012 may still be appealed by the aggrieved party upon
rendition of the final judgment in Civil Case No. 10-1120; and DIRECTS the Regional
Trial Court, Branch 58, in Makati City to conduct further proceedings in Civil Case No.
10-1120 with dispatch; and

(2) The petitions for review on certiorari in G.R. No. 208744 and G.R. No. 210095 and,
accordingly, REVERSES and SETS ASIDE the resolution promulgated on July 8, 2013
in C.A.-G.R. No. 130404 denying the motion for extension of the Department of Justice,
and the resolution promulgated on August 14, 2013 denying the motion to admit petition
for certiorari filed by the Department of Justice; LIFTS and QUASHES the writ of
preliminary injunction issued on April 10, 2013 by the Regional Trial Court, Branch 167,
in Pasig City enjoining the preliminary investigation for the second, third and fourth
criminal complaints filed against the respondents on the ground that such writ of
preliminary injunction was issued with grave abuse of discretion amounting to lack of
jurisdiction; DECLARES that the Department of Justice may now resume the
preliminary investigation of the remaining criminal complaints against the respondents
for simple estafa under Article 315(2)(a) of the Revised Penal Code; and ORDERS the
Regional Trial Court, Branch 167, in Pasig City to dismiss Civil Case No. 73115
entitled Delfin S. Lee v. Department of Justice.

The Court PARTIALLY GRANTS the petitions for review on certiorari in G.R. No.
205698, G.R. No. 205780, G.R. No. 209446, G.R. No. 209489, G.R. No. 209852,
G.R. No. 210143, G.R. No. 228452, G.R. No. 228730 and G.R. No. 230680 and,
accordingly:

(1) DIRECTS the DEPARTMENT OF JUSTICE to amend the information in Criminal

Case No. 18480 entitled People of the Philippines v. Delfin Lee, Dexter L. Lee, Christina
Sagun. Cristina Salagan, and Atty. Alex Alvarez of the Regional Trial Court Branch 42,
in San Fernando City,Pampanga to charge respondents DELFIN S. LEE, DEXTER L.
LEE, CHRISTINA SAGUN, CRlSTINA SALAGAN and ALEX M. ALVAREZ with
simple estafa under Article 315(2)(a) of the Revised Penal Code; and

(2) ORDERS the Presiding Judge of the Regional Trial Court, Branch 42, in San
Fernando City, Pampanga to suspend proceedings in Criminal Case No. 18480
pending the filing by the DEPARTMENT OF JUSTICE of the amended information as
directed herein, and to try the respondents as the accused in Criminal Case No. 18480
in accordance therewith, without prejudice to acting on any matter incidental to the
conduct of the trial of a criminal case, including applications for bail.

No pronouncement on costs of suit.

SO ORDERED.

G.R. No. 227363, March 12, 2019
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, v. SALVADOR TULAGAN,
ACCUSED-APPELLANT.
This is an appeal from the Decision1 of the Court of Appeals (CA) dated August 17,
2015 in CA-G.R. CR-HC No. 06679, which affirmed the Joint Decision2 dated February
10, 2014 of the Regional Trial Court (RTC) of San Carlos City in Criminal Case Nos.
SCC-6210 and SCC-6211, finding accused-appellant Salvador Tulagan (Tulagan)
guilty beyond reasonable doubt of the crimes of sexual assault and statutory rape as
defined and penalized under Article 266-A, paragraphs 2 and 1(d) of the Revised Penal
Code (RPC), respectively, in relation to Article 266-B.
In Criminal Case No. SCC-6210, Tulagan was charged as follows:
That sometime in the month of September 2011, at x x x, and within the jurisdiction of
this Honorable Court, the above-named accused, by means of force, intimidation and
with abuse of superior strength forcibly laid complainant AAA,3 a 9-year-old minor in a
cemented pavement, and did then and there, willfully, unlawfully and feloniously
inserted his finger into the vagina of the said AAA, against her will and consent.
Contrary to Article 266-A, par. 2 of the Revised Penal Code in relation to R.A. 7610.
In Criminal Case No. SCC-6211, Tulagan was charged as follows:
That on or about October 8, 2011 at x x x, and within the jurisdiction of this Honorable
Court, the above-named accused, by means of force, intimidation and with abuse of
superior strength, did then and there, willfully, unlawfully and feloniously have sexual
intercourse with complainant AAA, a 9-year-old minor against her will and consent to
the damage and prejudice of said AAA, against her will and consent.
Contrary to Article 266-A, par. 1(d) of the Revised Penal Code in relation to R.A. 7610.
Upon arraignment, Tulagan pleaded not guilty to the crimes charged.
During the trial, BBB, aunt of the victim AAA, testified that around 10:30 a.m. of October
17, 2011, she noticed a man looking at AAA outside their house. When AAA asked her
permission to go to the bathroom located outside their house, the man suddenly went
near AAA. Out of suspicion, BBB walked to approach AAA. As BBB came close to AAA,
the man left suddenly. After AAA returned from the bathroom, BBB asked what the man
was doing to her. AAA did not reply. She then told AAA to get inside the house. She
asked AAA to move her panties down, and examined her genitalia. She noticed that
her genitalia was swollen. AAA then confessed to her about the wrong done to her by
appellant whom AAA referred to as Badong or Salvador Tulagan. AAA cried hard and
embraced BBB tightly. AAA asked BBB for her help and even told her that she wanted
Badong to be put in jail.
AAA, nine (9) years old, testified that sometime in September 2011 while she was
peeling corn with her cousin who lived adjacent to her grandmother's house, Tulagan
approached her, spread her legs, and inserted his finger into her private part. She said
50
that it was painful, but Tulagan just pretended as if he was just looking for something
and went home.
AAA, likewise, testified that at around 11:00 a.m. of October 8, 2011, while she was
playing with her cousin in front of Tulagan's house, he brought her to his house and
told her to keep quiet. He told her to lie down on the floor, and removed her short pants
and panties. He also undressed himself, kissed AAA's cheeks, and inserted his penis
into her vagina. She claimed that it was painful and that she cried because Tulagan
held her hands and pinned them with his. She did not tell anyone about the incident,
until her aunt examined her private part.
Upon genital examination by Dr. Brenda Tumacder on AAA, she found a healed
laceration at 6 o'clock position in AAA's hymen, and a dilated or enlarged vaginal
opening. She said that it is not normal for a 9-year-old child to have a dilated vaginal
opening and laceration in the hymen.
For the defense, Tulagan claimed that he did not know AAA well, but admitted that he
lived barely five (5) meters away from AAA's grandmother's house where she lived. He
added that the whole month of September 2011, from 8:00 a.m. to 1:00 p.m., he was
gathering dried banana leaves to sell then take a rest after 1:00 p.m. at their terrace,
while his mother cut the banana leaves he gathered at the back of their kitchen. He
said that he never went to AAA's house and that he had not seen AAA during the entire
month of September 2011. Tulagan, likewise, claimed that before the alleged incidents
occurred, his mother had a misunderstanding with AAA's grandmother, who later on
started spreading rumors that he raped her granddaughter.
After trial, the RTC found that the prosecution successfully discharged the burden of
proof in two offenses of rape against AAA. It held that all the elements of sexual assault
and statutory rape was duly established. The trial court relied on the credible and
positive declaration of the victim as against the alibi and denial of Tulagan. The
dispositive portion of the Decision reads:
WHEREFORE, premises considered, the Court finds the accused GUILTY beyond
reasonable doubt [of] the crime of rape defined and penalized under Article 266-A,
paragraph 1 (d), in relation to R.A. 7610 in Criminal Case No. SCC-6211 and is hereby
sentenced to suffer the penalty of reclusion perpetua and to indemnify the victim in the
amount of fifty thousand (Php50,000.00) pesos; moral damages in the amount of fifty
thousand (Php 50,000.00) pesos, and to pay the cost of the suit. Likewise, this Court
finds the accused GUILTY beyond reasonable doubt in Criminal Case No. SCC-6210
for the crime of rape defined and penalized under Article 266-A, paragraph 2 and he is
hereby sentenced to suffer an indeterminate penalty of six (6) years of prision
correccional, as minimum, to twelve (12) years of prision mayor, as maximum, and to
indemnify the victim in the amount of thirty thousand (Php30,000.00) pesos; and moral
damages in the amount of twenty thousand (Php20,000.00) pesos, and to pay the cost
of suit.
SO ORDERED.4

Upon appeal, the CA affirmed with modification Tulagan's conviction of sexual assault
and statutory rape. The dispositive portion of the Decision reads:
ACCORDINGLY, the Decision dated February 10, 2014 is AFFIRMED, subject to the
following MODIFICATIONS:
1. In Criminal Case No. SCC-6210 (Rape by Sexual Assault), appellant is sentenced
to an indeterminate penalty of 12 years of reclusion temporal, as minimum, to 15 years
of reclusion temporal, as maximum. The award of moral damages is increased to
P30,000.00; and P30,000.00 as exemplary damages, are likewise granted.
2. In Criminal Case No. SCC-6211 (Statutory Rape), the awards of civil indemnity and
moral damages are increased to P100,000.00 each. Exemplary damages in the amount
of P100,000.00, too, are granted.
3. All damages awarded are subject to legal interest at the rate of 6% [per annum] from
the date of finality of this judgment until fully paid.
SO ORDERED.5
Aggrieved, Tulagan invoked the same arguments he raised before the CA in assailing
his conviction. He alleged that the appellate court erred in giving weight and credence
to the inconsistent testimony of AAA, and in sustaining his conviction despite the
prosecution's failure to prove his guilt beyond reasonable doubt. To support his appeal,
he argued that the testimony of AAA was fraught with inconsistencies and lapses which
affected her credibility.
Our Ruling
The instant appeal has no merit. However, a modification of the nomenclature of the
crime, the penalty imposed, and the damages awarded in Criminal Case No. SCC-6210
for sexual assault, and a reduction of the damages awarded in Criminal Case No. SCC-
6211 for statutory rape, are in order.
Factual findings of the trial court carry great weight and respect due to the unique
opportunity afforded them to observe the witnesses when placed on the stand.
Consequently, appellate courts will not overturn the factual findings of the trial court in
the absence of facts or circumstances of weight and substance that would affect the
result of the case.6 Said rule finds an even more stringent application where the said
findings are sustained by the CA, as in the instant case:
Time and again, we have held that when it comes to the issue of credibility of the victim
or the prosecution witnesses, the findings of the trial courts carry great weight and
respect and, generally, the appellate courts will not overturn the said findings unless
the trial court overlooked, misunderstood or misapplied some facts or circumstances of
weight and substance which will alter the assailed decision or affect the result of the
case. This is so because trial courts are in the best position to ascertain and measure
the sincerity and spontaneity of witnesses through their actual observation of the
witnesses' manner of testifying, their demeanor and behavior in court. Trial judges
enjoy the advantage of observing the witness' deportment and manner of testifying, her
51
"furtive glance, blush of conscious shame, hesitation, flippant or sneering tone,
calmness, sigh, or the scant or full realization of an oath" - all of which are useful aids
for an accurate determination of a witness' honesty and sincerity. Trial judges,
therefore, can better determine if such witnesses are telling the truth, being in the ideal
position to weigh conflicting testimonies. Again, unless certain facts of substance and
value were overlooked which, if considered, might affect the result of the case, its
assessment must be respected, for it had the opportunity to observe the conduct and
demeanor of the witnesses while testifying and detect if they were lying. The rule finds
an even more stringent application where the said findings are sustained by the Court
of Appeals.7
Here, in Criminal Case No. SCC-6210 for sexual assault, both the RTC and the CA
found AAA's testimony to be credible, straightforward and unwavering when she
testified that Tulagan forcibly inserted his finger in her vagina. In Criminal Case No.
SCC-6211 for statutory rape, both the RTC and the CA also found that the elements
thereof were present, to wit: (1) accused had carnal knowledge of the victim, and (2)
said act was accomplished when the offended party is under twelve (12) years of age.
Indubitably, the courts a quo found that the prosecution was able to prove beyond
reasonable doubt Tulagan's guilt for the crime of rape. We find no reason to deviate
from said findings and conclusions of the courts a quo.
Jurisprudence tells us that a witness' testimony containing inconsistencies or
discrepancies does not, by such fact alone, diminish the credibility of such testimony.
In fact, the variance in minor details has the net effect of bolstering instead of
diminishing the witness' credibility because they discount the possibility of a rehearsed
testimony. Instead, what remains paramount is the witness' consistency in relating the
principal elements of the crime and the positive and categorical identification of the
accused as the perpetrator of the same.8
As correctly held by the CA, the fact that some of the details testified to by AAA did not
appear in her Sinumpaang Salaysay does not mean that the sexual assault did not
happen. AAA was still able to narrate all the details of the sexual assault she suffered
in Tulagan's hands. AAA's account of her ordeal being straightforward and candid and
corroborated by the medical findings of the examining physician, as well as her positive
identification of Tulagan as the perpetrator of the crime, are, thus, sufficient to support
a conviction of rape.
As for Tulagan's imputation of ill motive on the part of AAA's grandmother, absent any
concrete supporting evidence, said allegation will not convince us that the trial court's
assessment of the credibility of the victim and her supporting witness was tainted with
arbitrariness or blindness to a fact of consequence. We reiterate the principle that no
young girl, such as AAA, would concoct a sordid tale, on her own or through the
influence of her grandmother as per Tulagan's intimation, undergo an invasive medical
examination then subject herself to the stigma and embarrassment of a public trial, if
her motive was other than a fervent desire to seek justice. In People v. Garcia,9 we
held:

Testimonies of child-victims are normally given full weight and credit, since when a girl,
particularly if she is a minor, says that she has been raped, she says in effect all that is
necessary to show that rape has in fact been committed. When the offended party is of
tender age and immature, courts are inclined to give credit to her account of what
transpired, considering not only her relative vulnerability but also the shame to which
she would be exposed if the matter to which she testified is not true. Youth and
immaturity are generally badges of truth and sincerity. A young girl's revelation that she
had been raped, coupled with her voluntary submission to medical examination and
willingness to undergo public trial where she could be compelled to give out the details
of an assault on her dignity, cannot be so easily dismissed as mere concoction. 10
We also reject Tulagan's defense of denial. Being a negative defense, the defense of
denial, if not substantiated by clear and convincing evidence, as in the instant case,
deserves no weight in law and cannot be given greater evidentiary value than the
testimony of credible witnesses, like AAA, who testified on affirmative matters. Since
AAA testified in a categorical and consistent manner without any ill motive, her positive
identification of Tulagan as the sexual offender must prevail over his defenses of denial
and alibi.
Here, the courts a quo did not give credence to Tulagan's alibi considering that his
house was only 50 meters away from AAA's house, thus, he failed to establish that it
was physically impossible for him to be at the locus criminis when the rape incidents
took place. "Physical impossibility" refers to distance and the facility of access between
the crime scene and the location of the accused when the crime was committed. There
must be a demonstration that they were so far away and could not have been physically
present at the crime scene and its immediate vicinity when the crime was committed.
In this regard, Tulagan failed to prove that there was physical impossibility for him to
be at the crime scene when the rape was committed.11 Thus, his alibi must fail.
Further, although the rape incidents in the instant case were not immediately reported
to the police, such delay does not affect the truthfulness of the charge in the absence
of other circumstances that show the same to be mere concoction or impelled by some
ill motive.12
For the guidance of the Bench and the Bar, We take this opportunity to reconcile the
provisions on Acts of Lasciviousness, Rape and Sexual Assault under the Revised
Penal Code (RPC), as amended by Republic Act (R.A.) No. 8353 vis-a-vis Sexual
Intercourse and Lascivious Conduct under Section 5(b) of R.A. No. 7610, to fortify the
earlier decisions of the Court and doctrines laid down on similar issues, and to clarify
the nomenclature and the imposable penalties of said crimes, and damages in line with
existing jurisprudence.13
Prior to the effectivity of R.A. No. 8353 or The Anti-Rape Law of 1997 on October 22,
1997, acts constituting sexual assault under paragraph 2,14 Article 266-A of the RPC,
were punished as acts of lasciviousness under Article No. 336 15 of the RPC or Act No.
3815 which took effect on December 8, 1930. For an accused to be convicted of acts
of lasciviousness, the confluence of the following essential elements must be proven:
(1) that the offender commits any act of lasciviousness or lewdness; and (2) that it is
52
done under any of the following circumstances: (a) by using force or intimidation; (b)
when the offended woman is deprived of reason or otherwise unconscious; or (c) when
the offended party is under twelve (12) years of age. 16 In Amployo v. People,17 We
expounded on the broad definition of the term "lewd":
The term lewd is commonly defined as something indecent or obscene; it is
characterized by or intended to excite crude sexual desire. That an accused is
entertaining a lewd or unchaste design is necessarily a mental process the existence
of which can be inferred by overt acts carrying out such intention, i.e., by conduct that
can only be interpreted as lewd or lascivious. The presence or absence of lewd designs
is inferred from the nature of the acts themselves and the environmental
circumstances. What is or what is not lewd conduct, by its very nature, cannot be
pigeonholed into a precise definition. As early as US. v. Gomez, we had already
lamented that
It would be somewhat difficult to lay down any rule specifically establishing just what
conduct makes one amenable to the provisions of article 439 of the Penal Code. What
constitutes lewd or lascivious conduct must be determined from the circumstances of
each case. It may be quite easy to determine in a particular case that certain acts are
lewd and lascivious, and it may be extremely difficult in another case to say just where
the line of demarcation lies between such conduct and the amorous advances of an
ardent lover.18
When R.A. No. 7610 or The Special Protection of Children Against Abuse, Exploitation
and Discrimination Act took effect on June 17, 1992 and its Implementing Rules and
Regulation was promulgated in October 1993, the term "lascivious conduct" was given
a specific definition. The Rules and Regulations on the Reporting and Investigation of
Child Abuse Cases states that "lascivious conduct means the intentional touching,
either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or
buttocks, or the introduction of any object into the genitalia, anus or mouth, of any
person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation,
lascivious exhibition of the genitals or pubic area of a person."
Upon the effectivity of R.A. No. 8353, specific forms of acts of lasciviousness were no
longer punished under Article 336 of the RPC, but were transferred as a separate crime
of "sexual assault" under paragraph 2, Article 266-A of the RPC. Committed by
"inserting penis into another person's mouth or anal orifice, or any instrument or object,
into the genital or anal orifice of another person" against the victim's will, "sexual
assault" has also been called "gender-free rape" or "object rape." However, the term
"rape by sexual assault" is a misnomer, as it goes against the traditional concept of
rape, which is carnal knowledge of a woman without her consent or against her will. In
contrast to sexual assault which is a broader term that includes acts that gratify sexual
desire (such as cunnilingus, felatio, sodomy or even rape), the classic rape is particular
and its commission involves only the reproductive organs of a woman and a man.
Compared to sexual assault, rape is severely penalized because it may lead to
unwanted procreation; or to paraphrase the words of the legislators, it will put an
outsider into the woman who would bear a child, or to the family, if she is married. 19 The

dichotomy between rape and sexual assault can be gathered from the deliberation of
the House of Representatives on the Bill entitled "An Act To Amend Article 335 of the
Revised Penal Code, as amended, and Defining and Penalizing the Crime of Sexual
Assault":
INTERPELLATION OF MR. [ERASMO B.] DAMASING:
xxxx
Pointing out his other concerns on the measure, specifically regarding the proposed
amendment to the Revised Penal Code making rape gender-free, Mr. Damasing asked
how carnal knowledge could be committed in case the sexual act involved persons of
the same sex or involves unconventional sexual acts.
Mr. [Sergio A. F.] Apostol replied that the Bill is divided into two classifications: rape
and sexual assault. The Committee, he explained, defines rape as carnal knowledge
by a person with the opposite sex, while sexual assault is defined as gender-free,
meaning it is immaterial whether the person committing the sexual act is a man or a
woman or of the same sex as the victim.
Subsequently, Mr. Damasing adverted to Section 1 which seeks to amend Article 335
of the Revised Penal Code as amended by RA No. 7659, which is amended in the Bill
as follows: "Rape is committed by having carnal knowledge of a person of the opposite
sex under the following circumstances." He then inquired whether it is the Committee's
intent to make rape gender-free, either by a man against a woman, by a woman against
a man, by man against a man, or by a woman against a woman. He then pointed out
that the Committee's proposed amendment is vague as presented in the Bill, unlike the
Senate version which specifically defines in what instances the crime of rape can be
committed by a man or by the opposite sex.
Mr. Apostol replied that under the Bill "carnal knowledge" presupposes that the offender
is of the opposite sex as the victim. If they are of the same sex, as what Mr. Damasing
has specifically illustrated, such act cannot be considered rape - it is sexual assault.
Mr. Damasing, at this point, explained that the Committee's definition of carnal
knowledge should be specific since the phrase "be a person of the opposite sex"
connotes that carnal knowledge can be committed by a person, who can be either a
man or a woman and hence not necessarily of the opposite sex but may be of the same
sex.
Mr. Apostol pointed out that the measure explicitly used the phrase “carnal knowledge
of a person of the opposite sex" to define that the abuser and the victim are of the
opposite sex; a man cannot commit rape against another man or a woman against
another woman. He pointed out that the Senate version uses the phrase carnal
knowledge with a woman".
While he acknowledged Mr. Apostol's points, Mr. Damasing reiterated that the specific
provisions need to be clarified further to avoid confusion, since, earlier in the
interpellation Mr. Apostol admitted that being gender-free, rape can be committed
53
under four situations or by persons of the same sex. Whereupon, Mr. Damasing read
the specific provisions of the Senate version of the measure.
In his rejoinder, Mr. Apostol reiterated his previous contention that the Bill has provided
for specific and distinct definitions regarding rape and sexual assault to differentiate
that rape cannot be totally gender-free as it must be committed by a person against
someone of the opposite sex.
With regard to Mr. Damasing's query on criminal sexual acts involving persons of the
same sex, Mr. Apostol replied that Section 2, Article 266(b) of the measure on sexual
assault applies to this particular provision.
Mr. Damasing, at this point, inquired on the particular page where Section 2 is located.
SUSPENSION OF SESSION
xxxx
INTERPELLATION OF MR. DAMASING
(Continuation)
Upon resumption of session, Mr. Apostol further expounded on Sections 1 and 2 of the
bill and differentiated rape from sexual assault. Mr. Apostol pointed out that the main
difference between the aforementioned sections is that carnal knowledge or rape,
under Section 1, is always with the opposite sex. Under Section 2, on sexual assault,
he explained that such assault may be on the genitalia, the mouth, or the anus; it can
be done by a man against a woman, a man against a man, a woman against a woman
or a woman against a man.20
Concededly, R.A. No. 8353 defined specific acts constituting acts of lasciviousness as
a. distinct crime of "sexual assault," and increased the penalty thereof from prision
correccional to prision mayor. But it was never the intention of the legislature to redefine
the traditional concept of rape. The Congress merely upgraded the same from a "crime
against chastity" (a private crime) to a "crime against persons" (a public crime) as a
matter of policy and public interest in order to allow prosecution of such cases even
without the complaint of the offended party, and to prevent extinguishment of criminal
liability in such cases through express pardon by the offended party. Thus, other forms
of acts of lasciviousness or lascivious conduct committed against a child, such as
touching of other delicate parts other than the private organ or kissing a young girl with
malice, are still punished as acts of lasciviousness under Article 336 of the RPC in
relation to R.A. No. 7610 or lascivious conduct under Section 5 of R.A. No. 7610.
Records of committee and plenary deliberations of the House of Representative and of
the deliberations of the Senate, as well as the records of bicameral conference
committee meetings, further reveal no legislative intent for R.A. No. 8353 to supersede
Section 5(b) of R.A. No. 7610. The only contentious provisions during the bicameral
conference committee meetings to reconcile the bills of the Senate and House of
Representatives which led to the enactment of R.A. No. 8353, deal with the nature of
and distinction between rape by carnal knowledge and rape by sexual assault; the
threshold age to be considered in statutory rape [whether Twelve (12) or Fourteen (14)],

the provisions on marital rape and effect of pardon, and the presumptions of vitiation or
lack of consent in rape cases. While R.A. No. 8353 contains a generic repealing and
amendatory clause, the records of the deliberation of the legislature are silent with
respect to sexual intercourse or lascivious conduct against children under R.A. No.
7610, particularly those who are 12 years old or below 18, or above 18 but are unable
to fully take care or protect themselves from abuse, neglect, cruelty, exploitation or
discrimination because of a physical or mental disability or condition.
In instances where the lascivious conduct committed against a child victim is covered
by the definition under R.A. No. 7610, and the act is likewise covered by sexual assault
under paragraph 2,21 Article 266-A of the RPC, the offender should be held liable for
violation of Section 5(b), Article III of R.A. No. 7610. The ruling in Dimakuta v.
People22 is instructive:
Article 226-A, paragraph 2 of the RPC, punishes inserting of the penis into another
person's mouth or anal orifice, or any instrument or object, into the genital or anal orifice
of another person if the victim did not consent either it was done through force, threat
or intimidation; or when the victim is deprived of reason or is otherwise unconscious; or
by means of fraudulent machination or grave abuse of authority as sexual assault as a
form of rape. However, in instances where the lascivious conduct is covered by the
definition under R.A. No 7610, where the penalty is reclusion temporal medium, and
the act is likewise covered by sexual assault under Article 266-A, paragraph 2 of the
RPC, which is punishable by prision mayor , the offender should be liable for violation
of Section 5(b), Article III of R.A. No. 7610, where the law provides for the higher penalty
of reclusion temporal medium, if the offended party is a child victim. But if the victim is
at least eighteen (18) years of age, the offender should be liable under Art. 266-A, par.
2 of the RPC and not R.A. No. 7610, unless the victim is at least eighteen (18) years
and she is unable to fully take care of herself or protect herself from abuse, neglect,
cruelty, exploitation or discrimination because of a physical or mental disability or
condition, in which case, the offender may still be held liable for sexual abuse under
R.A. No. 7610.23
There could be no other conclusion, a child is presumed by law to be incapable of giving
rational consent to any lascivious act, taking into account the constitutionally enshrined
State policy to promote the physical, moral, spiritual, intellectual and social well-being
of the youth, as well as, in harmony with the foremost consideration of the child's best
interests in all actions concerning him or her. This is equally consistent with the
declared policy of the State to provide special protection to children from all forms of
abuse, neglect, cruelty, exploitation and discrimination, and other conditions prejudicial
to their development; provide sanctions for their commission and carry out a program
for prevention and deterrence of and crisis intervention in situations of child abuse,
exploitation, and discrimination. Besides, if it was the intention of the framers of the law
to make child offenders liable only of Article 266-A of the RPC, which provides for a
lower penalty than R.A. No. 7610, the law could have expressly made such
statements.24
Meanwhile, if acts of lasciviousness or lascivious conduct are committed with a child
who is 12 years old or less than 18 years old, the ruling in Dimakuta25 is also on point:
54
Under Section 5, Article III of R.A. No. 7610, a child is deemed subjected to other sexual
abuse when he or she indulges in lascivious conduct under the coercion or influence of
any adult. This statutory provision must be distinguished from Acts of Lasciviousness
under Articles 336 and 339 of the RPC. As defined in Article 336 of the RPC, Acts of
Lasciviousness has the following elements:
(1) That the offender commits any act of lasciviousness or lewdness;
(2) That it is done under any of the following circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived of reason or otherwise unconscious; or
c. When the offended party is under 12 years of age; and
(3) That the offended party is another person of either sex.
Article 339 of the RPC likewise punishes acts of lasciviousness committed with
the consent of the offended party if done by the same persons and under the same
circumstances mentioned in Articles 337 and 338 of the RPC, to wit:
1. if committed against a virgin over twelve years and under eighteen years of
age by any person in public authority, priest, home-servant, domestic, guardian,
teacher, or any person who, in any capacity, shall be entrusted with the education or
custody of the woman; or
2. if committed by means of deceit against a woman who is single or a widow of good
reputation, over twelve but under eighteen years of age.
Therefore, if the victim of the lascivious acts or conduct is over 12 years of age and
under eighteen (18) years of age, the accused shall be liable for:
1. Other acts of lasciviousness under Art. 339 of the RPC, where the victim is
a virgin and consents to the lascivious acts through abuse of confidence or when the
victim is single or a widow of good reputation and consents to the lascivious acts
through deceit, or;
2. Acts of lasciviousness under Art. 336 if the act of lasciviousness is not covered by
lascivious conduct as defined in R.A. No. 7610. In case the acts of lasciviousness [are]
covered by lascivious conduct under R.A. No. 7610 and it is done through coercion or
influence, which establishes absence or lack of consent, then Art. 336 of the RPC is no
longer applicable
3. Section 5(b), Article III of R.A. No. 7610, where there was no consent on the part of
the victim to the lascivious conduct, which was done through the employment of
coercion or influence. The offender may likewise be liable for sexual abuse under R.A.
No. 7610 if the victim is at least eighteen (18) years and she is unable to fully take care
of herself or protect herself from abuse, neglect, cruelty, exploitation or discrimination
because of a physical or mental disability or condition.26

In People v. Caoili,27 We prescribed the following guidelines in designating or charging
the proper offense in case lascivious conduct is committed under Section 5(b) of R.A.
No. 7610, and in determining the imposable penalty:
1. The age of the victim is taken into consideration in designating or charging the
offense, and in determining the imposable penalty.
2. If the victim is under twelve (12) years of age, the nomenclature of the crime
should be "Acts of Lasciviousness under Article 336 of the Revised Penal Code
in relation to Section 5(b) of R.A. No. 7610." Pursuant to the second proviso in
Section 5(b) of R.A. No. 7610, the imposable penalty is reclusion temporal in its
medium period.
3. If the victim is exactly twelve (12) years of age, or more than twelve (12) but below
eighteen (18) years of age, or is eighteen (18) years old or older but is unable to fully
take care of herself/himself or protect herself/himself from abuse, neglect, cruelty,
exploitation or discrimination because of a physical or mental disability or condition, the
crime should be designated as "Lascivious Conduct under Section 5(b) of R.A. No.
7610," and the imposable penalty is reclusion temporal in its medium period
to reclusion perpetua.28
Based on the Caoili29 guidelines, it is only when the victim of the lascivious conduct is
18 years old and above that such crime would be designated as "Acts of Lasciviousness
under Article 336 of the RPC" with the imposable penalty of prision correccional.
Considering the development of the crime of sexual assault from a mere "crime against
chastity" in the form of acts of lasciviousness to a "crime against persons" akin to rape,
as well as the rulings in Dimakuta and Caoili. We hold that if the acts constituting sexual
assault are committed against a victim under 12 years of age or is demented, the
nomenclature of the offense should now be "Sexual Assault under paragraph 2, Article
266-A of the RPC in relation to Section 5(b) of R.A. No. 7610" and no longer "Acts of
Lasciviousness under Article 336 of the RPC in relation to Section 5(b) of R.A. No.
7610," because sexual assault as a form of acts of lasciviousness is no longer covered
by Article 336 but by Article 266-A(2) of the RPC, as amended by R.A. No. 8353.
Nevertheless, the imposable penalty is still reclusion temporal in its medium period,
and not prision mayor.
Whereas if the victim is 12 years old and under 18 years old, or 18 years old and above
under special circumstances, the nomenclature of the crime should be "Lascivious
Conduct under Section 5(b) of R.A. No. 7610" with the imposable penalty of reclusion
temporal in its medium period to reclusion perpetua,30 but it should not make any
reference to the provisions of the RPC. It is only when the victim of the sexual assault
is 18 years old and above, and not demented, that the crime should be called as
"Sexual Assault under paragraph 2, Article 266-A of the RPC" with the imposable
penalty of prision mayor.
Sexual intercourse with a victim who is under 12 years old or is demented is
statutory rape
55
Under Section 5(b) of R.A. No. 7610, the proper penalty when sexual intercourse is
committed with a victim who is under 12 years of age or is demented is reclusion
perpetua, pursuant to paragraph 1(d),31 Article 266-A in relation to Article 266-B of the
RPC, as amended by R.A. No. 8353,32 which in turn amended Article 33533 of the RPC.
Thus:
Section 5. Child Prostitution and Other Sexual Abuse. - Children, whether male or
female, who for money, profit, or any other consideration or due to the coercion or
influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious
conduct, are deemed to be children exploited in prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be
imposed upon the following:
xxxx
(b) Those who commit the act of sexual intercourse or lascivious conduct with a child
exploited in prostitution or subject to other sexual abuse; Provided, That when the
victim is under twelve (12) years of age, the perpetrators shall be prosecuted under
Article 335, paragraph 3, for rape [sic] and Article 336 of Act No. 3815, as amended,
the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided,
That the penalty for lascivious conduct when the victim is under twelve (12) years of
age shall be reclusion temporal in its medium period; x x x.34
In Quimvel v. People,35 it was opined36 that the two provisos under Section 5(b) of R.A.
No. 7610 will apply only if the victim is under 12 years of age, but not to those 12 years
old and below 18, for the following reason:
"while the first clause of Section 5(b), Article III of R.A. 7610 is silent with respect to the
age of the victim, Section 3, Article I thereof defines "children" as those below eighteen
(18) years of age or those over but are unable to fully take care of themselves or protect
themselves from abuse, neglect, cruelty, exploitation or discrimination because of a
physical or mental disability. Notably, two provisos succeeding the first clause of
Section 5(b) explicitly state a qualification that when the victim of lascivious conduct is
under 12 years of age, the perpetrator shall be (1) prosecuted under Article 336 of the
RPC, and (2) the penalty shall be reclusion temporal in its medium period. It is a basic
rule in statutory construction that the office of the proviso qualifies or modifies
only the phrase immediately preceding it or restrains of limits the generality of
the clause that it immediately follows. A proviso is to be construed with reference
to the immediately preceding part of the provisions, to which it is attached, and
not to the statute itself or the other sections thereof.37 Accordingly, this case falls
under the qualifying provisos of Section 5(b), Article III of R.A. 7610 because the
allegations in the information make out a case for acts of lasciviousness, as defined
under Article 336 of the RPC, and the victim is under 12 years of age x x x." 38
In view of the foregoing rule in statutory construction, it was proposed 39 in Quimvel that
the penalty for acts of lasciviousness committed against a child should depend on
his/her age: if the victim is under 12 years of age, the penalty is reclusion temporal in
its medium period, and if the victim is 12 years old and below 18, or 18 or older under

special circumstances under Section 3(a)40 of R.A. No. 7610, the penalty is reclusion
temporal in its medium period to reclusion perpetua.
Applying by analogy the foregoing discussion in Quimvel to the act of sexual
intercourse with a child exploited in prostitution or subject to other sexual abuse, We
rule that when the offended party is under 12 years of age or is demented, only the first
proviso of Section 5(b), Article III of R.A. No. 7610 will apply, to wit: "when the victim is
under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335,
paragraph 3, for rape x x x." The penalty for statutory rape under Article 335 is reclusion
perpetua, which is. still the same as in the current rape law, i.e., paragraph 1(d), Article
266-A in relation to Article 266-B of the RPC, as amended by R.A. No. 8353, except in
cases where the victim is below 7 years of age where the imposable penalty is death. 41
Note that the second proviso of Section 5(b) of R.A. No. 7610 will not apply because it
clearly has nothing to do with sexual intercourse, and it only deals with "lascivious
conduct when the victim is under 12 years of age." While the terms "lascivious conduct"
and "sexual intercourse" are included in the definition of "sexual abuse" under Section
2(g)42 of the Rules and Regulations on the Reporting and Investigation of Child Abuse
Cases, note that the definition of "lascivious conduct" 43 does not include sexual
intercourse. Be it stressed that the purpose of indicating the phrase "under twelve (12)
years of age" is to provide for statutory lascivious conduct or statutory rape, whereby
evidence of force, threat or intimidation is immaterial because the offended party, who
is under 12 years old or is demented, is presumed incapable of giving rational consent.
Malto ruling clarified
An important distinction between violation of Section 5(b) of R.A. No. 7610 and rape
under the RPC was explained in Malto v. People44 We ruled in Malto45 that one may be
held liable for violation of Sec. 5(b), Article III of R.A. No. 7610 despite a finding that
the person did not commit rape, because rape is a felony under the RPC, while sexual
abuse against a child is punished by a special law. Said crimes are separate and
distinct, and they have different elements. Unlike in rape, however, consent is
immaterial in cases involving violation of Sec. 5, Art. III of R.A. No. 7610. The mere fact
of having sexual intercourse or committing lascivious conduct with a child who is
exploited in prostitution or subjected to sexual abuse constitutes the offense.
In Malto,46 where the accused professor indulged several times in sexual intercourse
with the 17-year-old private complainant, We also stressed that since a child cannot
give consent to a contract under our civil laws because she can easily be a victim of
fraud as she is not capable of full understanding or knowing the nature or import of her
actions, the harm which results from a child's bad decision in a sexual encounter may
be infinitely more damaging to her than a bad business deal. Thus, the law should
protect her from the harmful consequences of her attempts at adult sexual behavior.
For this reason, a child should not be deemed to have validly consented to adult sexual
activity and to surrender herself in the act of ultimate physical intimacy under a law
which seeks to afford her special protection against abuse, exploitation and
discrimination. In sum, a child is presumed by law to be incapable of giving rational
consent to any lascivious conduct or sexual intercourse.
56
We take exception, however, to the sweeping conclusions in Malto (1) that "a child is
presumed by law to be incapable of giving rational consent to any lascivious conduct
or sexual intercourse" and (2) that "consent of the child is immaterial in criminal cases
involving violation of Section 5, Article III of RA 7610" because they would virtually
eradicate the concepts of statutory rape and statutory acts of lasciviousness, and
trample upon the express provision of the said law.
Recall that in statutory rape, the only subject of inquiry is whether the woman is below
12 years old or is demented and whether carnal knowledge took place; whereas force,
intimidation and physical evidence of injury are not relevant considerations. With
respect to acts of lasciviousness, R.A. No. 8353 modified Article 336 of the RPC by
retaining the circumstance that the offended party is under 12 years old in order for acts
of lasciviousness to be considered as statutory and by adding the circumstance that
the offended party is demented, thereby rendering the evidence of force or intimidation
immaterial.47 This is because the law presumes that the victim who is under 12 years
old or is demented does not and cannot have a will of her own on account of her tender
years or dementia; thus, a child's or a demented person's consent is immaterial
because of her presumed incapacity to discern good from evil. 48
However, considering the definition under Section 3(a) of R.A. No. 7610 of the term
"children" which refers to persons below eighteen (18) years of age or those over but
are unable to fully take care of themselves or protect themselves from abuse, neglect,
cruelty, exploitation or discrimination because of a physical or mental disability or
condition, We find that the opinion in Malto, that a child is presumed by law to be
incapable of giving rational consent, unduly extends the concept of statutory rape or
acts of lasciviousness to those victims who are within the range of 12 to 17 years old,
and even those 18 years old and above under special circumstances who are still
considered as "children" under Section 3(a) of R.A. No. 7610. While Malto is correct
that consent is immaterial in cases under R.A. No. 7610 where the offended party is
below 12 years of age, We clarify that consent of the child is material and may even be
a defense in criminal cases involving violation of Section 5, Article III of R.A. No. 7610
when the offended party is 12 years old or below 18, or above 18 under special
circumstances. Such consent may be implied from the failure to prove that the said
victim engaged in sexual intercourse either "due to money, profit or any other
consideration or due to the coercion or influence of any adult, syndicate or group."
It bears emphasis that violation of the first clause of Section 5(b), Article III of R.A. No.
7610 on sexual intercourse with a child exploited in prostitution or subject to other
sexual abuse, is separate and distinct from statutory rape under paragraph 1(d), Article
266-A of the RPC. Aside from being dissimilar in the sense that the former is an offense
under special law, while the latter is a felony under the RPC, they also have different
elements.49 Nevertheless, sexual intercourse with a victim who is under 12 years of age
or is demented is always statutory rape, as Section 5(b) of R.A. No. 7610 expressly
states that the perpetrator will be prosecuted under Article 335, paragraph 3 of the RPC
[now paragraph 1(d), Article 266-A of the RPC as amended by R.A. No. 8353].
Even if the girl who is below twelve (12) years old or is demented consents to the sexual
intercourse, it is always a crime of statutory rape under the RPC, and the offender

should no longer be held liable under R.A. No. 7610. For example, a nine (9)-year-old
girl was sold by a pimp to a customer, the crime committed by the latter if he commits
sexual intercourse with the girl is still statutory rape, because even if the girl consented
or is demented, the law presumes that she is incapable of giving a rational consent.
The same reason holds true with respect to acts of lasciviousness or lascivious conduct
when the offended party is less than 12 years old or is demented. Even if such party
consents to the lascivious conduct, the crime is always statutory acts of lasciviousness.
The offender will be prosecuted under Article 33650 of the RPC, but the penalty is
provided for under Section 5(b) of R.A. No. 7610. Therefore, there is no conflict
between rape and acts of lasciviousness under the RPC, and sexual intercourse and
lascivious conduct under R.A. No. 7610.
Meanwhile, if sexual intercourse is committed with a child under 12 years of age, who
is deemed to be "exploited in prostitution and other sexual abuse," then those who
engage in or promote, facilitate or induce child prostitution under Section 5(a)51 of R.A.
No. 7610 shall be liable as principal by force or inducement under Article 17 52 of the
RPC in the crime of statutory rape under Article 266-A(1) of the RPC; whereas those
who derive profit or advantage therefrom under Section 5(c) 53 of R.A. No. 7610 shall
be liable as principal by indispensable cooperation under Article 17 of the RPC. Bearing
in mind the policy of R.A. No. 7610 of providing for stronger deterrence and special
protection against child abuse and exploitation, the following shall be the nomenclature
of the said statutory crimes and the imposable penalties for principals by force or
inducement or by indispensable cooperation:
1. Acts of Lasciviousness under Article 336 of the RPC, in relation to Section
5(a) or (c), as the case may be, of R.A. No. 7610, with the imposable penalty
of reclusion temporal in its medium period to reclusion perpetua;
2. Rape under Article 266-A(1) of the RPC, in relation to Article 17 of the RPC
and Section 5(a) or (c), as the case may be, of R.A. No. 7610 with the
imposable penalty of reclusion perpetua, pursuant to Article 266-B of the RPC,
except when the victim is below 7 years old, in which case the crime is
considered as Qualified Rape, for which the death penalty shall be imposed;
and
3. Sexual Assault under Article 266-A(2) of the RPC, in relation to Section 5(a)
or (c), as the case may be, of R.A. No. 7610 with the imposable penalty
of reclusion temporal in its medium period to reclusion perpetua.
If the victim who is 12 years old or less than 18 and is deemed to be a child "exploited
in prostitution and other sexual abuse" because she agreed to indulge in sexual
intercourse "for money, profit or any other consideration or due to coercion or influence
of any adult, syndicate or group," then the crime could not be rape under the RPC,
because this no longer falls under the concept of statutory rape, and there was consent.
That is why the offender will now be penalized under Section 5(b), R.A. No. 7610, and
not under Article 33554 of the RPC [now Article 266-A]. But if the said victim does not
give her consent to sexual intercourse in the sense that the sexual intercourse was
committed through force, threat or intimidation, the crime is rape under paragraph 1,
57
Article 266-A of the RPC. However, if the same victim gave her consent to the sexual
intercourse, and no money, profit, consideration, coercion or influence is involved, then
there is no crime committed, except in those cases where "force, threat or intimidation"
as an element of rape is substituted by "moral ascendancy or moral authority,"55 like in
the cases of incestuous rape, and unless it is punished under the RPC as qualified
seduction under Article 33756 or simple seduction under Article 338.57
Rulings in Tubillo, Abay and Pangilinan clarified
At this point, it is not amiss to state that the rulings in People v. Tubillo,58People v.
Abay59 and People v. Pangilinan60 should be clarified, because there is no need to
examine whether the focus of the prosecution's evidence is "coercion and influence" or
"force and intimidation" for the purpose of determining which between R.A. No. 7610
or the RPC should the accused be prosecuted under in cases of acts of lasciviousness
or rape where the offended party is 12 years of age or below 18.
To recap, We explained in Abay61 that under Section 5 (b), Article III of R.A. No. 7610
in relation to R.A. No. 8353, if the victim of sexual abuse is below 12 years of age, the
offender should not be prosecuted for sexual abuse but for statutory rape under
paragraph 1(d), Article 266-A of the RPC, and penalized with reclusion perpetua. On
the other hand, if the victim is 12 years or older, the offender should be charged with
either sexual abuse under Section 5(b) of R.A. No. 7610 or rape under Article 266-A
(except paragraph 1 [d]) of the RPC. However, the offender cannot be accused of both
crimes for the same act because his right against double jeopardy might be prejudiced.
Besides, rape cannot be complexed with a violation of Section 5(b) of R.A. No. 7610,
because under Section 48 of the RPC (on complex crimes), a felony under the RPC
(such as rape) cannot be complexed with an offense penalized by a special law.
Considering that the victim in Abay was more than 12 years old when the crime was
committed against her, and the Information against appellant stated that the child was
13 years old at the time of the incident, We held that appellant may be prosecuted either
for violation of Section 5(b) of R.A. No. 7610 or rape under Article 266-A (except
paragraph 1[d]) of the RPC. We observed that while the Information may have alleged
the elements of both crimes, the prosecution's evidence only established that appellant
sexually violated the person of the child through force and intimidation by threatening
her with a bladed instrument and forcing her to submit to his bestial designs. Hence,
appellant was found guilty of rape under paragraph 1(a), Article 266-A of the RPC.
In Pangilinan, where We were faced with the same dilemma because all the elements
of paragraph 1, Article 266-A of the RPC and Section 5(b) of R.A. No. 7610 were
present, it was ruled that the accused can be charged with either rape or child abuse
and be convicted therefor. However, We observed that rape was established, since the
prosecution's evidence proved that the accused had carnal knowledge of the victim
through force and intimidation by threatening her with a samurai. Citing the discussion
in Abay, We ruled as follows:
As in the present case, appellant can indeed be charged with either Rape or Child
Abuse and be convicted therefor. The prosecution's evidence established that appellant
had carnal knowledge of AAA through force and intimidation by threatening her with a

samurai. Thus, rape was established. Considering that in the resolution of the Assistant
Provincial Prosecutor, he resolved the filing of rape under Article 266-A of the Revised
Penal Code for which appellant was convicted by both the RTC and the CA, therefore,
we merely affirm the conviction.62
In the recent case of Tubillo where We noted that the Information would show that the
case involves both the elements of paragraph 1, Article 266-A of the RPC and Section
5(b) of R.A. No. 7610, We likewise examined the evidence of the prosecution, whether
it focused on the specific force or intimidation employed by the offender or on the
broader concept of coercion or influence to have carnal knowledge with the victim. In
ruling that appellant should be convicted of rape under paragraph 1(a), Article 266-A of
the RPC instead of violation of Section 5(b) of R.A. No. 7610, We explained:
Here, the evidence of the prosecution unequivocally focused on the force or intimidation
employed by Tubillo against HGE under Article 266- A(1)(a) of the RPC. The
prosecution presented the testimony of HGE who narrated that Tubillo unlawfully
entered the house where she was sleeping by breaking the padlock. Once inside, he
forced himself upon her, pointed a knife at her neck, and inserted his penis in her
vagina. She could not resist the sexual attack against her because Tubillo poked a
bladed weapon at her neck. Verily, Tubillo employed brash force or intimidation to carry
out his dastardly deeds.63
With this decision, We now clarify the principles laid down in Abay,
Pangilinan and Tubillo to the effect that there is a need to examine the evidence of the
prosecution to determine whether the person accused of rape should be prosecuted
under the RPC or R.A. No. 7610 when the offended party is 12 years old or below 18.
First, if sexual intercourse is committed with an offended party who is a child less than
12 years old or is demented, whether or not exploited in prostitution, it is always a crime
of statutory rape; more so when the child is below 7 years old, in which case the crime
is always qualified rape.
Second, when the offended party is 12 years old or below 18 and the charge against
the accused is carnal knowledge through "force, threat or intimidation," then he will be
prosecuted for rape under Article 266-A(1)(a) of the RPC. In contrast, in case of sexual
intercourse with a child who is 12 years old or below 18 and who is deemed "exploited
in prostitution or other sexual abuse," the crime could not be rape under the RPC,
because this no longer falls under the concept of statutory rape, and the victim indulged
in sexual intercourse either "for money, profit or any other consideration or due to
coercion or influence of any adult, syndicate or group," which deemed the child as one
"exploited in prostitution or other sexual abuse."
To avoid further confusion, We dissect the phrase "children exploited in prostitution" as
an element of violation of Section 5(b) of R.A. No. 7610. As can be gathered from the
text of Section 5 of R.A. No. 7610 and having in mind that the term "lascivious
conduct"64 has a clear definition which does not include "sexual intercourse," the
phrase "children exploited in prostitution" contemplates four (4) scenarios: (a) a child,
whether male or female, who for money, profit or any other consideration, indulges in
lascivious conduct; (b) a female child, who for money, profit or any other consideration,
58
indulges in sexual intercourse; (c) a child, whether male or female, who due to the
coercion or influence of any adult, syndicate or group, indulges in lascivious conduct;
and (d) a female, due to the coercion or influence of any adult, syndicate or group,
indulge in sexual intercourse.
The term "other sexual abuse," on the other hand, is construed in relation to the
definitions of "child abuse" under Section 3, Article I of R.A. No. 7610 and "sexual
abuse" under Section 2(g) of the Rules and Regulations on the Reporting and
Investigation of Child Abuse Cases.65 In the former provision, "child abuse" refers to
the maltreatment, whether habitual or not, of the child which includes sexual abuse,
among other matters. In the latter provision, "sexual abuse" includes the employment,
use, persuasion, inducement, enticement or coercion of a child to engage in, or assist
another person to engage in, sexual intercourse or lascivious conduct or the
molestation, prostitution, or incest with children.
In Quimvel, it was held that the term "coercion or influence" is broad enough to cover
or even synonymous with the term "force or intimidation." Nonetheless, it should be
emphasized that "coercion or influence" is used in Section 566 of R.A. No. 7610 to
qualify or refer to the means through which "any adult, syndicate or group" compels a
child to indulge in sexual intercourse. On the other hand, the use of "money, profit or
any other consideration" is the other mode by which a child indulges in sexual
intercourse, without the participation of "any adult, syndicate or group." In other words,
"coercion or influence" of a child to indulge in sexual intercourse is clearly exerted NOT
by the offender whose liability is based on Section 5(b)67 of R.A. No. 7610 for
committing sexual act with a child exploited in prostitution or other sexual abuse.
Rather, the "coercion or influence" is exerted upon the child by "any adult, syndicate,
or group" whose liability is found under Section 5(a)68 for engaging in, promoting,
facilitating or inducing child prostitution, whereby the sexual intercourse is the
necessary consequence of the prostitution.
For a clearer view, a comparison of the elements of rape under the RPC and sexual
intercourse with a child under Section 5(b) of R.A. No. 7610 where the offended party
is between 12 years old and below 18, is in order.
Rape under Article 266-A(1)(a,b,c) Section 5(1) of R.A. No. 7610
under the RPC
1. Offender is a man; 1. Offender is a man;
2. Carnal knowledge of a woman; 2. Indulges in sexual intercourse with a
female child exploited in prostitution or
other sexual abuse, who is 12 years

old or below 18 or above 18 under
special circumstances;
3. Through force, threat or 3. Coercion or influence of any adult,
intimidation; when the offended party syndicate or group is employed against
is deprived of reason or otherwise the child to become a prostitute
unconscious; and by means of
fraudulent machination or grave abuse
of authority
As can be gleaned above, "force, threat or intimidation" is the element of rape under
the RPC, while "due to coercion or influence of any adult, syndicate or group" is the
operative phrase for a child to be deemed "exploited in prostitution or other sexual
abuse," which is the element of sexual abuse under Section 5(b) of R.A. No. 7610. The
"coercion or influence" is not the reason why the child submitted herself to sexual
intercourse, but it was utilized in order for the child to become a prostitute. Considering
that the child has become a prostitute, the sexual intercourse becomes voluntary and
consensual because that is the logical consequence of prostitution as defined under
Article 202 of the RPC, as amended by R.A. No. 10158 where the definition of
"prostitute" was retained by the new law:69
Article 202. Prostitutes; Penalty. - For the purposes of this article, women who, for
money or profit, habitually indulge in sexual intercourse or lascivious conduct, are
deemed to be prostitutes.
Any person found guilty of any of the offenses covered by this article shall be punished
by arresto menor or a fine not exceeding 200 pesos, and in case of recidivism,
by arresto mayor in its medium period to prision correccional in its minimum period or
a fine ranging from 200 to 2,000 pesos, or both, in the discretion of the court.
Therefore, there could be no instance that an Information may charge the same
accused with the crime of rape where "force, threat or intimidation" is the element of
the crime under the RPC, and at the same time violation of Section 5(b) of R.A. No.
7610 where the victim indulged in sexual intercourse because she is exploited in
prostitution either "for money, profit or any other consideration or due to coercion or
influence of any adult, syndicate or group" — the phrase which qualifies a child to be
deemed "exploited in prostitution or other sexual abuse" as an element of violation of
Section 5(b) of R.A. No. 7610.
Third, if the charge against the accused where the victim is 12 years old or below 18 is
sexual assault under paragraph 2, Article 266-A of the RPC, then it may happen that
the elements thereof are the same as that of lascivious conduct under Section 5(b) of
R.A. No. 7610, because the term "lascivious conduct" includes introduction of any
object into the genitalia, anus or mouth of any person.70 In this regard, We held
59
in Dimakuta that in instances where a "lascivious conduct" committed against a child is
covered by R.A. No. 7610 and the act is likewise covered by sexual assault under
paragraph 2, Article 266-A of the RPC [punishable by prision mayor], the offender
should be held liable for violation of Section 5(b) of R.A. No. 7610 [punishable
by reclusion temporal medium], consistent with the declared policy of the State to
provide special protection to children from all forms of abuse, neglect, cruelty,
exploitation and discrimination, and other conditions prejudicial to their development.
But when the offended party is below 12 years of age or is demented, the accused
should be prosecuted and penalized under paragraph 2, Article 266-A of the RPC in
relation to Section 5(b) of R.A. No. 7610, because the crime of sexual assault is
considered statutory, whereby the evidence of force or intimidation is immaterial.
Assuming that the elements of both violations of Section 5(b) of R.A. No. 7610 and of
Article 266-A, paragraph 1(a) of the RPC are mistakenly alleged in the same
Information – e.g., carnal knowledge or sexual intercourse was due to "force or
intimidation" with the added phrase of "due to coercion or influence," one of the
elements of Section 5(b) of R.A. No. 7610; or in many instances wrongfully designate
the crime in the Information as violation of "Article 266-A, paragraph 1(a) in relation to
Section 5(b) of R.A. No. 7610," although this may be a ground for quashal of the
Information under Section 3(f)71 of Rule 117 of the Rules of Court and proven during
the trial in a case where the victim who is 12 years old or under 18 did not consent to
the sexual intercourse, the accused should still be prosecuted pursuant to the RPC, as
amended by R.A. No. 8353, which is the more recent and special penal legislation that
is not only consistent, but also strengthens the policies of R.A. No. 7610. Indeed, while
R.A. No. 7610 is a special law specifically enacted to provide special protection to
children from all forms of abuse, neglect, cruelty, exploitation and discrimination and
other conditions prejudicial to their development, We hold that it is contrary to the
legislative intent of the same law if the lesser penalty (reclusion temporal medium
to reclusion perpetua) under Section 5(b) thereof would be imposed against the
perpetrator of sexual intercourse with a child 12 years of age or below 18.
Article 266-A, paragraph 1(a) in relation to Article 266-B of the RPC, as amended by
R.A. No. 8353, is not only the more recent law, but also deals more particularly with all
rape cases, hence, its short title "The Anti-Rape Law of 1997." R.A. No. 8353 upholds
the policies and principles of R.A. No. 7610, and provides a "stronger deterrence and
special protection against child abuse," as it imposes a more severe penalty
of reclusion perpetua under Article 266-B of the RPC, or even the death penalty if the
victim is (1) under 18 years of age and the offender is a parent, ascendant, step-parent,
guardian, relative by consanguinity or affinity within the third civil degree, or common-
law spouse of the parent of the victim; or (2) when the victim is a child below 7 years
old.
It is basic in statutory construction that in case of irreconcilable conflict between two
laws, the later enactment must prevail, being the more recent expression of legislative
will.72 Indeed, statutes must be so construed and harmonized with other statutes as to
form a uniform system of jurisprudence, and if several laws cannot be harmonized, the
earlier statute must yield to the later enactment, because the later law is the latest
 60

expression of the legislative will.73 Hence, Article 266-B of the RPC must prevail over penalty shall be
Section 5(b) of R.A. No. 7610. imposed76
In sum, the following are the applicable laws and penalty for the crimes of acts of
lasciviousness or lascivious conduct and rape by carnal knowledge or sexual assault, Rape by carnal Rape under Article Rape under Article Rape under
depending on the age of the victim, in view of the provisions of paragraphs 1 and 2 of knowledge 266-A(1) in relation to 266-A(1) in relation Article 266-A(1)
Article 266-A and Article 336 of the RPC, as amended by R.A. No. 8353, and Section Art. 266-B of the to Art. 266-B of the of the
5(b) of R.A. No. 7610: RPC: reclusion RPC: reclusion RPC: reclusion
perpetua, except perpetua perpetua
Designation of the Crime & Imposable Penalty when the victim is
below 7 years old in
12 years old or which case death
Under 12 years old or below 18, or 18 18 years old and penalty shall be
Age of Victim:
demented under special above imposed
circumstances74
Rape by Sexual Sexual Assault under Lascivious Conduct Sexual Assault
Crime Assault Article 266-A(2) of the under Section 5(b) under Article
Committed: RPC in relation to of R.A. No. 266-A(2) of the
Section 5(b) of R.A. 7610: reclusion RPC: prision
Acts of Acts of Lascivious Not applicable No. 7610: reclusion temporal in its mayor
Lasciviousness Lasciviousness under conduct75 under temporal in its medium period
committed against Article 336 of the RPC Section 5(b) of R.A. medium period to reclusion
children exploited in relation to Section No. 7610: reclusion perpetua
in prostitution or 5(b) of R.A. No. temporal in its
other sexual 7610: reclusion medium period
abuse temporal in its to reclusion For the crime of acts of lasciviousness or lascivious conduct, the nomenclature of the
medium period perpetua crime and the imposable penalty are based on the guidelines laid down in Caoili. For
the crimes of rape by carnal knowledge and sexual assault under the RPC, as well as
sexual intercourse committed against children under R.A. No. 7610, the designation of
Sexual Assault Sexual Assault under Lascivious Conduct Not applicable
the crime and the imposable penalty are based on the discussions
committed against Article 266-A(2) of the under Section 5(b)
in Dimakuta,78Quimvel79 and Caoili, in line with the policy of R.A. No. 7610 to provide
children exploited RPC in relation to of R.A. No.
stronger deterrence and special protection to children from all forms of abuse, neglect,
in prostitution or Section 5(b) of R.A. 7610: reclusion
cruelty, exploitation, discrimination, and other conditions prejudicial to their
other sexual No. 7610: reclusion temporal in its
development. It is not amiss to stress that the failure to designate the offense by statute,
abuse temporal in its medium period
or to mention the specific provision penalizing the act, or an erroneous specification of
medium period to reclusion
the law violated, does not vitiate the information if the facts alleged clearly recite the
perpetua
facts constituting the crime charged, for what controls is not the title of the information
or the designation of the offense, but the actual facts recited in the
Sexual Rape under Article Sexual Not applicable information.80 Nevertheless, the designation in the information of the specific statute
Intercourse 266-A(1) of the Abuse77 under violated is imperative to avoid surprise on the accused and to afford him the opportunity
committed against RPC: reclusion Section 5(b) of R.A. to prepare his defense accordingly.81
children exploited perpetua, except No. 7610: reclusion
in prostitution or when the victim is temporal in its Justice Caguioa asks us to abandon our rulings in Dimakuta, Quimvel and Caoili, and
other sexual below 7 years old in medium period to consider anew the viewpoint in his Separate Dissenting Opinion in Quimvel that the
abuse which case death to reclusion provisions of R.A. No. 7610 should be understood in its proper context, i.e., that it only
perpetua applies in the specific and limited instances where the victim is a child "subjected to
prostitution or other sexual abuse." He asserts that if the intention of R.A. No. 7610 is

to penalize all sexual abuses against children under its provisions to the exclusion of
the RPC, it would have expressly stated so and would have done away with the
qualification that the child be "exploited in prostitution or subjected to other sexual
abuse." He points out that Section 5(b) of R.A. No. 7610 is a provision of specific and
limited application, and must be applied as worded — a separate and distinct offense
from the "common" or ordinary acts of lasciviousness under Article 336 of the RPC. In
support of his argument that the main thrust of R.A. No. 7610 is the protection of street
children from exploitation, Justice Caguioa cites parts of the sponsorship speech of
Senators Santanina T. Rasul, Juan Ponce Enrile and Jose D. Lina, Jr.
We find no compelling reason to abandon our ruling in Dimakuta, Quimvel and Caoili.
In his Separate Concurring Opinion in Quimvel, the ponente aptly explained that if and
when there is an absurdity in the interpretation of the provisions of the law, the proper
recourse is to refer to the objectives or the declaration of state policy and principles
under Section 2 of R.A. No. 7610, as well as Section 3(2), Article XV of the 1987
Constitution:
[R.A. No. 7610] Sec. 2. Declaration of State Policy and Principles. - It is hereby declared
to be the policy of the State to provide special protection to children from all forms
of abuse, neglect, cruelty, exploitation and discrimination, and other conditions
prejudicial to their development; provide sanctions for their commission and carry
out a program for prevention and deterrence of and crisis intervention in situations of
child abuse, exploitation and discrimination. The State shall intervene on behalf of the
child when the parent, guardian, teacher or person having care or custody of the child
fails or is unable to protect the child against abuse, exploitation and discrimination or
when such acts against the child are committed by the said parent, guardian, teacher
or person having care and custody of the same.
It shall be the policy of the State to protect and rehabilitate children gravely threatened
or endangered by circumstances which affect or will affect their survival and normal
development and over which they have no control.
The best interests of children shall be the paramount consideration in all actions
concerning them, whether undertaken by public or private social welfare institutions,
courts of law, administrative authorities, and legislative bodies, consistent with the
principle of First Call for Children as enunciated in the United Nations Convention on
the Rights of the Child. Every effort shall be exerted to promote the welfare of children
and enhance their opportunities for a useful and happy life. [Emphasis added]
[Article XV 1987 Constitution] Section 3. The State shall defend:
xxxx
(2) The right of children to assistance, including proper care and nutrition,
and special protection from all forms of neglect, abuse, cruelty, exploitation, and
other conditions prejudicial to their development.82
Clearly, the objective of the law, more so the Constitution, is to provide a special type
of protection for children from all types of abuse. Hence, it can be rightly inferred that
61
the title used in Article III, Section 5, "Child Prostitution and Other Sexual Abuse" does
not mean that it is only applicable to children used as prostitutes as the main offense
and the other sexual abuses as additional offenses, the absence of the former
rendering inapplicable the imposition of the penalty provided under R.A. No. 7610 on
the other sexual abuses committed by the offenders on the children concerned.
Justice Caguioa asserts that Section 5(b), Article III of R.A. No. 7610 is clear - it only
punishes those who commit the act of sexual intercourse or lascivious conduct with a
child exploited in prostitution or subjected to other sexual abuse. There is no ambiguity
to speak of that which requires statutory construction to ascertain the legislature's intent
in enacting the law.
We would have agreed with Justice Caguioa if not for Section 5 itself which provides
who are considered as "children exploited in prostitution and other sexual abuse."
Section 5 states that "[c]hildren, whether male or female, who for money, profit, or any
other consideration or due to the coercion or influence of any adult, syndicate or group,
indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited
in prostitution and other sexual abuse." Contrary to the view of Justice Caguioa, Section
5(b), Article III of R.A. No. 7610 is not as clear as it appears to be; thus, We
painstakingly sifted through the records of the Congressional deliberations to discover
the legislative intent behind such provision.
Justice Caguioa then asks: (1) if the legislature intended for Section 5(b), R.A. No. 7610
to cover any and all types of sexual abuse committed against children, then why would
it bother adding language to the effect that the provision applies to "children exploited
in prostitution or subjected to other sexual abuse?" and (2) why would it also put Section
5 under Article III of the law, which is entitled "Child Prostitution and Other Sexual
Abuse?"
We go back to the record of the Senate deliberation to explain the history behind the
phrase "child exploited in prostitution or subject to other sexual abuse."
Section 5 originally covers Child Prostitution only, and this can still be gleaned from
Section 6 on Attempt To Commit Child Prostitution, despite the fact that both Sections
fall under Article III on Child Prostitution and Other Sexual Abuse. Thus:
Section 6. Attempt To Commit Child Prostitution. - There is an attempt to
commit child prostitution under Section 5, paragraph (a) hereof when any person who,
not being a relative of a child, is found alone with the said child inside the room or
cubicle of a house, an inn, hotel, motel, pension house, apartelle or other similar
establishments, vessel, vehicle or any other hidden or secluded area under
circumstances which would lead a reasonable person to believe that the child is about
to be exploited in prostitution and other sexual abuse.
There is also an attempt to commit child prostitution, under paragraph (b) of Section
5 hereof when any person is receiving services from a child in a sauna parlor or bath,
massage clinic, health club and other similar establishments. A penalty lower by two
(2) degrees than that prescribed for the consummated felony under Section 5 hereof

shall be imposed upon the principals of the attempt to commit the crime of child
prostitution under this Act, or, in the proper case, under the Revised Penal Code.
Even Senator Lina, in his explanation of his vote, stated that Senate Bill 1209 also
imposes the penalty of reclusion temporal in its medium period to reclusion
perpetua for those who commit the act of sexual intercourse or lascivious conduct with
a child exploited in prostitution.83 Senator Lina mentioned nothing about the phrases
"subject to other sexual abuse" or "Other Sexual Abuse" under Section 5(b), Article III
of R.A. No. 7610.
However, to cover a situation where the minor may have been coerced or intimidated
into lascivious conduct, not necessarily for money or profit, Senator Eduardo Angara
proposed the insertion of the phrase "WHO FOR MONEY, PROFIT, OR ANY OTHER
CONSIDERATION OR DUE TO THE COERCION OR INFLUENCE OF ANY ADULT,
SYNDICATE OR GROUP, INDULGE" in sexual intercourse or lascivious conduct,
under Section 5(b), Article III of R.A. No. 7610.84
Further amendment of then Article III of R.A. No. 7610 on Child Prostitution was also
proposed by then President Pro Tempore Sotero Laurel, to which Senator Angara
agreed, in order to cover the "expanded scope" of "child abuse." Thus, Article III was
amended and entitled "Child Prostitution and Other Sexual Abuse."85 This is the proper
context where the element that a child be "exploited in prostitution and other sexual
abuse" or EPSOSA, came to be, and should be viewed.
We hold that it is under President Pro Tempore Laurel's amendment on "expanded
scope'' of "child abuse" under Section 5(b) and the definition of "child abuse" under
Section 3,86 Article I of R.A. No. 7610 that should be relied upon in construing the
element of "exploited under prostitution and other sexual abuse." In understanding the
element of "exploited under prostitution and other sexual abuse", We take into account
two provisions of R.A. No. 7610, namely: (1) Section 5, Article III, which states that
"[c]hildren, whether male or female, who for money, profit, or any other consideration
or due to the coercion or influence of any adult, syndicate or group, indulge in sexual
intercourse or lascivious conduct, are deemed to be exploited in prostitution and other
sexual abuse"; and (2) Section 3, Article I, which states that "child abuse" refers to the
maltreatment, whether habitual or not, of the child, which includes, sexual abuse.
To clarify, once and for all, the meaning of the element of "exploited in prostitution"
under Section 5(b), Article III of R.A. No. 7610,87 We rule that it contemplates 4
scenarios, namely: (a) a child, whether male or female, who for money, profit or any
other consideration, indulges in lascivious conduct; (b) a child, whether male or female,
who due to the coercion or influence of any adult, syndicate or group, indulges in
lascivious conduct; (c) a female child, who for money, profit or any other consideration,
indulges in sexual intercourse; and (d) a female, due to the coercion or influence of any
adult, syndicate or group, indulges in sexual intercourse.
Note, however, that the element of "exploited in prostitution" does not cover a male
child, who for money, profit or any other consideration, or due to coercion or influence
of any adult, syndicate, or group, indulges in sexual intercourse. This is because at the
time R.A. No. 7610 was enacted in 1992, the prevailing law on rape was Article 335 of
62
the RPC where rape can only be committed by having carnal knowledge of a woman
under specified circumstances. Even under R.A. No. 8353 which took effect in 1997,
the concept of rape remains the same — it is committed by a man who shall have carnal
knowledge of a woman under specified circumstances. As can be gathered from the
Senate deliberation on Section 5(b), Article III of R.A. No. 7610, it is only when the
victim or the child who was abused is a male that the offender would be prosecuted
thereunder because the crime of rape does not cover child abuse of males. 88
The term "other sexual abuse," on the other hand, should be construed in relation to
the definitions of "child abuse" under Section 3,89 Article I of R.A. No. 7610 and "sexual
abuse" under Section 2(g)90 of the Rules and Regulations on the Reporting and
Investigation of Child Abuse Cases.91 In the former provision, "child abuse" refers to
the maltreatment, whether habitual or not, of the child which includes sexual abuse,
among other matters. In the latter provision, "sexual abuse" includes the employment,
use, persuasion, inducement, enticement or coercion of a child to engage in, or assist
another person to engage in, sexual intercourse or lascivious conduct or the
molestation, prostitution, or incest with children. Thus, the term "other sexual abuse" is
broad enough to include all other acts of sexual abuse other than prostitution.
Accordingly, a single act of lascivious conduct is punished under Section 5(b), Article
III, when the victim is 12 years old and below 18, or 18 or older under special
circumstances. In contrast, when the victim is under 12 years old, the proviso of Section
5(b) states that the perpetrator should be prosecuted under Article 336 of the RPC for
acts of lasciviousness, whereby the lascivious conduct itself is the sole element of the
said crime. This is because in statutory acts of lasciviousness, as in statutory rape, the
minor is presumed incapable of giving consent; hence, the other circumstances
pertaining to rape — force, threat, intimidation, etc. — are immaterial.
Justice Caguioa also posits that the Senate deliberation on R.A. No. 7610 is replete
with similar disquisitions that all show the intent to make the law applicable to cases
involving child exploitation through prostitution, sexual abuse, child trafficking,
pornography and other types of abuses. He stresses that the passage of the laws was
the Senate's act of heeding the call of the Court to afford protection to a special class
of children, and not to cover any and all crimes against children that are already covered
by other penal laws, such as the RPC and Presidential Decree No. 603, otherwise
known as the Child and Youth Welfare Code. He concludes that it is erroneous for us
to rule that R.A. No. 7610 applies in each and every case where the victim although he
or she was not proved, much less, alleged to be a child "exploited in prostitution or
subjected to other sexual abuse." He invites us to go back to the ruling in Abello that
"since R.A. No. 7610 is a special law referring to a particular class in society, the
prosecution must show that the victim truly belongs to this particular class to warrant
the application of the statute's provisions. Any doubt in this regard we must resolve in
favor of the accused."
Justice Estela M. Perlas-Bernabe also disagrees that R.A. No. 7610 would be generally
applicable to all cases of sexual abuse involving minors, except those who are under
12 years of age. Justice Perlas-Bernabe concurs with Justice Caguioa that Section
5(b), Article III of R.A. No. 7610 only applies in instances where the child-victim is
"exploited in prostitution or subject to other sexual abuse" (EPSOSA). She asserts that

her limited view, as opposed to the ponencia's expansive view, is not only supported
by several textual indicators both in law and the deliberations, but also squares with
practical logic and reason. She also contends that R.A. No. 7610 was enacted to protect
those who, like the child-victim in People v. Ritter, willingly engaged in sexual acts, not
out of desire to satisfy their own sexual gratification, but because of their "vulnerable
pre-disposition as exploited children. She submits that, as opposed to the RPC where
sexual crimes are largely predicated on the lack of consent, Section 5(b) fills in the gaps
of the RPC by introducing the EPSOSA element which effectively dispenses with the
need to prove the lack of consent at the time the act of sexual abuse is committed.
Thus, when it comes to a prosecution under Section 5(b), consent at the time the sexual
act is consummated is, unlike in the RPC, not anymore a defense.
We are unconvinced that R.A. No. 7610 only protects a special class of children, i.e.,
those who are "exploited in prostitution or subjected to other sexual abuse," and does
not cover all crimes against them that are already punished by existing laws. It is hard
to understand why the legislature would enact a penal law on child abuse that would
create an unreasonable classification between those who are considered as "exploited
in prostitution and other sexual abuse" or EPSOSA and those who are not. After all, the
policy is to provide stronger deterrence and special protection to children from all forms
of abuse, neglect, cruelty, exploitation, discrimination and other conditions prejudicial
to their development.
In the extended explanation of his vote on Senate Bill No. 1209, 92 Senator Lina
emphasized that the bill complements the efforts the Senate has initiated towards the
implementation of a national comprehensive program for the survival and development
of Filipino children, in keeping with the Constitutional mandate that "[t]he State shall
defend the right of children to assistance, including proper care and nutrition; and
special protection from all forms of neglect, abuse, cruelty, exploitation, and other
conditions prejudicial to their development."93 Senator Lina also stressed that the bill
supplies the inadequacies of the existing laws treating crimes committed against
children, namely, the RPC and the Child and Youth Welfare Code, in the light of the
present situation, i.e., current empirical data on child abuse indicate that a stronger
deterrence is imperative.94
In the same vein, Senator Rasul expressed in her Sponsorship Speech the same view
that R.A. No. 7610 intends to protect all children against all forms of abuse and
exploitation, thus:
There are still a lot of abuses and injustices done to our children who suffer not only
from strangers, but sadly, also in the hands of their parents and relatives. We know for
a fact that the present law on the matter, the Child and Welfare Code (PD No. 603) has
very little to offer to abuse children. We are aware of the numerous cases not reported
in media.
In the Filipino Family structure, a child is powerless; he or she is not supposed to be
heard and seen. Usually, it is the father or the mother who has a say in family matters,
and children, owing to their limited capability, are not consulted in most families. Many
children may be suffering from emotional, physical and social abuses in their homes,
63
but they cannot come out in the open; besides, there is a very thin line separating
discipline from abuse. This becomes wider when the abuse becomes grave and severe.
Perhaps, more lamentable than the continuing child abuses and exploitation is the
seeming unimportance or the lack of interest in the way we have dealt with the said
problem in the country. No less than the Supreme Court, in the recent case of People
v. Ritter, held that we lack criminal laws which will adequately protect street children
from exploitation of pedophiles. But as we know, we, at the Senate have not been
remiss in our bounden duty to sponsor bills which will ensure the protection of street
children from the tentacles of sexual exploitation. Mr. President, now is the time to
convert these bills into reality.
In our long quest for solutions to problems regarding children, which problems
are deeply rooted in poverty, I have felt this grave need to sponsor a bill, together
with Senators Lina and Mercado, which would ensure the children's protection
from all forms of abuse and exploitation, to provide stiffer sanction for their
commission and carry out programs for prevention and deterrence to aid crisis
intervention in situations of child abuse and exploitation.
Senate Bill No. 1209 translates into reality the provision of our 1987 Constitution on
"THE FAMILY," and I quote:
Sec. 3. The State shall defend:
xxxx
(2) The right of children to assistance, including proper care and nutrition,
and special protection from all forms of neglect, abuse, cruelty, exploitation, and
other conditions prejudicial to their development.
This is a specific provision peculiar to the Philippines. No other Constitution in the whole
world contains this mandate. Keeping true to this mandate, Mr. President, and the UN
Convention on the Rights of the Child which has been drafted in the largest global
summit, of which we have acceded, we should waste no time in passing this significant
bill into law. This is a commitment; thus, we should not thrive on mere promises. We,
the legislature of this country, must have that political will to transform this promise into
a vibrant reality.
Children's normal growth and development, considering their young minds and fragile
bodies, must not be stunted. We legislators must pave the way for the sustained
progress of our children. Let not a child's opportunity for physical, spiritual, moral, social
and intellectual well-being be stunted by the creeping cruelty and insanity that
sometimes plague the minds of the adults in the society who, ironically, are the persons
most expected to be the guardians of their interest and welfare. 95
Justice Caguioa further submits that Section 5(b) of R.A. No. 7610 cannot be read in
isolation in the way that Dimakuta, Quimvel and Caoili do, but must be read in the
whole context of R.A. No. 7610 which revolves around (1) child prostitution, (2) other
sexual abuse in relation to prostitution and (3) the specific acts punished under R.A.
No. 7610, namely, child trafficking under Article IV, obscene publications and indecent

shows under Article V, and sanctions for establishments where these prohibited acts
are promoted, facilitated or conducted under Article VII. He adds that even an analysis
of the structure of R.A. No. 7610 demonstrates its intended application to the said cases
of child exploitation involving children "exploited in prostitution or subjected to other
sexual abuse." Citing the exchange between Senators Pimentel and Lina during the
second reading of Senate Bill No. 1209 with respect to the provision on attempt to
commit child prostitution, Justice Caguioa likewise posits that a person can only be
convicted of violation of Article 336 in relation to Section 5(b), upon allegation and proof
of the unique circumstances of the children "exploited in prostitution or subjected to
other sexual abuse."
We disagree that the whole context in which Section 5(b) of R.A. No. 7610 must be
read revolves only around child prostitution, other sexual abuse in relation to
prostitution, and the specific acts punished under R.A. No. 7610. In fact, the provisos
of Section 5(b) itself explicitly state that it must also be read in light of the provisions of
the RPC, thus: "Provided, That when the victim is under twelve (12) years of age, the
perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article
336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious
conduct, as the case may be; Provided, That the penalty for lascivious conduct when
the victim is under twelve (12) years of age shall be reclusion temporal in its medium
period. "
When the first proviso of Section 5(b) states that "when the victim is under 12 years of
age shall be prosecuted under the RPC," it only means that the elements of rape under
then Article 335, paragraph 3 of the RPC [now Article 266-A, paragraph 1(d)], and of
acts of lasciviousness under Article 336 of the RPC, have to be considered, alongside
the element of the child being "exploited in prostitution and or other sexual abuse," in
determining whether the perpetrator can be held liable under R.A. No. 7610. The
second proviso of Section 5(b), on the other hand, merely increased the penalty for
lascivious conduct when the victim is under 12 years of age, from prision
correccional to reclusion temporal in its medium period, in recognition of the principle
of statutory acts of lasciviousness, where the consent of the minor is immaterial.
Significantly, what impels Us to reject Justice Caguioa's view that acts of lasciviousness
committed against children may be punished under either Article 336 of the RPC
[with prision correccional] or Acts of Lasciviousness under Article 336 of the RPC, in
relation to Section 5(b) of R.A. No. 7610 [with reclusion temporal medium]/Lascivious
Conduct under Section 5(b) of R.A. No. 7610 [with reclusion temporal medium
to reclusion perpetua], is the provision under Section 10 of R.A. No. 7610.
As pointed out by the ponente in Quimvel, where the victim of acts of lasciviousness is
under 7 years old, Quimvel cannot be merely penalized with prision correccional for
acts of lasciviousness under Article 336 of the RPC when the victim is a child because
it is contrary to the letter and intent of R.A. No. 7610 to provide for stronger deterrence
and special protection against child abuse, exploitation and discrimination. The
legislative intent is expressed under Section 10, Article VI of R.A. No. 7610 which,
among others, increased by one degree the penalty for certain crimes when the victim
is a child under 12 years of age, to wit:
64
Section 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions
Prejudicial to the Child's Development. —
xxxx
For purposes of this Act, the penalty for the commission of acts punishable under
Articles 248, 249, 262, paragraph 2, and 263, paragraph 1 of Act No. 3815, as
amended, for the crimes of murder, homicide, other intentional mutilation, and serious
physical injuries, respectively, shall be reclusion perpetua when the victim is under
twelve (12) years of age. The penalty for the commission of acts punishable under
Article 337, 339, 340 and 341 of Act No. 3815, as amended, the Revised Penal
Code, for the crimes of qualified seduction, acts of lasciviousness with consent
of the offended party, corruption of minors, and white slave trade, respectively,
shall be one (1) degree higher than that imposed by law when the victim is under
twelve (12) years of age.96
The ponente explained that to impose upon Quimvel an indeterminate sentence
computed from the penalty of prision correccional under Article 336 of the RPC would
defeat the purpose of R.A. No. 7610 to provide for stronger deterrence and special
protection against child abuse, exploitation and discrimination. First, the imposition of
such penalty would erase the substantial distinction between acts of lasciviousness
under Article 336 and acts of lasciviousness with consent of the offended party under
Article 339,97 which used to be punishable by arresto mayor, and now by prision
correccional pursuant to Section 10, Article VI of R.A. No. 7610. Second, it would
inordinately put on equal footing the acts of lasciviousness committed against a child
and the same crime committed against an adult, because the imposable penalty for
both would still be prision correccional, save for the aggravating circumstance of
minority that may be considered against the perpetrator. Third, it would make acts of
lasciviousness against a child a probationable offense, pursuant to the Probation Law
of 1976,98 as amended by R.A. No. 10707.99 Indeed, while the foregoing implications
are favorable to the accused, they are contrary to the State policy and principles under
R.A. No. 7610 and the Constitution on the special protection to children.
Justice Caguioa also faults that a logical leap was committed when
the ponencia posited that the Section 10, Article VI, R.A. No. 7610 amendment of the
penalties under Articles 337, 339, 340 and 341 of the RPC, also affected Article 336 on
acts of lasciviousness. He argues that given the clear import of Section 10 to the effect
that the legislature expressly named the provisions it sought to amend through R.A.
No. 7610, amendment by implication cannot be insisted on.
We disagree. Articles 337 (Qualified Seduction), 339 (Acts of Lasciviousness with the
Consent of the Offended Party), 340 (Corruption of Minor) and 341 (White Slave Trade)
of the RPC, as well as Article 336 (Acts of Lasciviousness) of the RPC, fall under Title
Eleven of the RPC on Crimes against Chastity. All these crimes can be committed
against children. Given the policy of R.A. No. 7610 to provide stronger deterrence and
special protection against child abuse, We see no reason why the penalty for acts of
lasciviousness committed against children should remain to be prision
correccional when Section 5(b), Article III of R.A. No. 7610 penalizes those who commit

lascivious conduct with a child exploited in prostitution or subject to other sexual abuse
with a penalty of reclusion temporal in its medium period when the victim is under 12
years of age.
Contrary to the view of Justice Caguioa, there is, likewise, no such thing as a recurrent
practice of relating the crime committed to R.A. No. 7610 in order to increase the
penalty, which violates the accused's constitutionally protected right to due process of
law. In the interpretation of penal statutes, the rule is to subject it to careful scrutiny and
to construe it with such strictness as to safeguard the rights of the accused,100 and at
the same time preserve the obvious intention of the legislature.101 A strict construction
of penal statutes should also not be permitted to defeat the intent, policy and purpose
of the legislature, or the object of the law sought to be attained.102 When confronted
with apparently conflicting statutes, the courts should endeavor to harmonize and
reconcile them, instead of declaring the outright invalidity of one against the other,
because they are equally the handiwork of the same legislature. 103 In this case, We are
trying to harmonize the applicability of the provisions of R.A. No. 7610 vis-a-vis those
of the RPC, as amended by R.A. No. 8353, in order to carry out the legislative intent to
provide stronger deterrence and special protection against all forms of child abuse,
exploitation and discrimination.
Pertinent parts of the deliberation in Senate Bill No. 1209 underscoring the legislative
intent to increase the penalties as a deterrent against all forms of child abuse, including
those covered by the RPC and the Child and Youth Welfare Code, as well as to give
special protection to all children, read:
Senator Lina. x x x
For the information and guidance of our Colleagues, the phrase "child abuse" here is
more descriptive than a definition that specifies the particulars of the acts of child abuse.
As can be gleaned from the bill, Mr. President, there is a reference in Section 10 to the
"Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions Prejudicial
to the Child's Development."
We refer, for example, to the Revised Penal Code. There are already acts described
and punished under the Revised Penal Code and the Child and Youth Welfare Code.
These are all enumerated already, Mr. President. There are particular acts that are
already being punished.
But we are providing stronger deterrence against child abuse and exploitation by
increasing the penalties when the victim is a child. That is number one. We define a
child as "one who is 15 years and below." [Later amended to those below 18, including
those above 18 under special circumstances]
The President Pro Tempore. Would the Sponsor then say that this bill repeals, by
implication or as a consequence, the law he just cited for the protection of the
child as contained in that Code just mentioned, since this provides for stronger
deterrence against child abuse and we have now a Code for the protection of the
child?
65
Senator Lina. We specified in the bill, Mr. President, increase in penalties. That
is one. But, of course, that is not everything included in the bill. There are other
aspects like making it easier to prosecute these cases of pedophilia in our
country. That is another aspect of this bill.
The other aspects of the bill include the increase in the penalties on acts
committed against children; and by definition, children are those below 15 years
of age.
So, it is an amendment to the Child and Youth Welfare Code, Mr. President. This
is not an amendment by implication. We made direct reference to the Articles in
the Revised Penal Code and in the Articles in the Child and Youth Welfare Code
that are amended because of the increase in the penalties.
The President Pro Tempore. Would Senator Lina think then that, probably, it would
be more advisable to specify the amendments and amend the particular provision of
the existing law rather than put up a separate bill like this?
Senator Lina. We did, Mr. President. In Section 10, we made reference to...
The President Pro Tempore. The Chair is not proposing any particular amendment.
This is just an inquiry for the purpose of making some suggestions at this stage where
we are now in the period of amendments.
Senator Lina. We deemed it proper to have a separate Act, Mr. President, that will
include all measures to provide stronger deterrence against child abuse and
exploitation. There are other aspects that are included here other than increasing
the penalties that are already provided for in the Revised Penal Code and in the
Child and Youth Welfare Code when the victims are children.
Aside from the penalties, there are other measures that are provided for in this
Act. Therefore, to be more systematic about it, instead of filing several bills, we
thought of having a separate Act that will address the problems of children below
15 years of age. This is to emphasize the fact that this is a special sector in our
society that needs to be given special protection. So this bill is now being presented
for consideration by the Chamber.104
The aforequoted parts of the deliberation in Senate Bill No. 1209 likewise negate the
contention of Justice Perlas-Bernabe that "to suppose that R.A. No. 7610 would
generally cover acts already punished under the Revised Penal Code (RPC) would
defy the operational logic behind the introduction of this special law." They also address
the contention of Justice Caguioa that the passage of the same law was the Senate's
act of heeding the call of the Court to afford protection to a special class of children,
and not to cover any and all crimes against children that are already covered by other
penal laws, like the RPC and P.D. No. 603.
As pointed out by Senator Lina, the other aspect of S.B. No. 1209, is to increase
penalties on acts committed against children; thus, direct reference was made to the
Articles in the RPC and in the Articles in the Child and Youth Welfare Code that are
amended because of the increase in the penalties. The said legislative intent is

consistent with the policy to provide stronger deterrence and special protection of
children against child abuse, and is now embodied under Section 10, Article VI of R.A.
No. 7610, viz.:
For purposes of this Act, the penalty for the commission of acts punishable under
Articles 248, 249, 262, paragraph 2, and 263, paragraph 1 of Act No. 3815, as
amended, the Revised Penal Code, for the crimes of murder, homicide, other
intentional mutilation, and serious physical injuries, respectively, shall be reclusion
perpetua when the victim is under twelve (12) years of age. The penalty for the
commission of acts punishable under Article 337, 339, 340 and 341 of Act No. 3815,
as amended, the Revised Penal Code, for the crimes of qualified seduction, acts of
lasciviousness with the consent of the offended party, corruption of minors, and white
slave trade, respectively, shall be one (1) degree higher than that imposed by law when
the victim is under twelve (12) years age.
Justice Perlas-Bernabe and Justice Caguioa are both correct that R.A. No. 7610 was
enacted to fill the gaps in the law, as observed by the Court in People v. Ritter.
However, they may have overlooked that fact that the Congressional deliberations and
the express provisions of R.A. No. 7610 all point to the intention and policy to
systematically address the problems of children below 15 years of age [later increased
to below 18], which Senator Lina emphasized as a special sector in our society that
needs to be given special protection.105
Justice Perlas-Bernabe also noted that a general view on the application of R.A. No.
7610 would also lead to an unnerving incongruence between the law's policy objective
and certain penalties imposed thereunder. She pointed out that under Article 335 of the
RPC, prior to its amendment by R.A. No. 8353, the crime of rape committed against a
minor who is not under 12 and below 18, is punished with the penalty of reclusion
perpetua, while under Section 5(b), Article III of R.A. No. 7610, the crime of sexual
abuse against a child EPSOSA is punished only with a lower penalty of reclusion
temporal in its medium period to reclusion perpetua. She concluded that it would not
make sense for the Congress to pass a supposedly stronger law against child abuse if
the same carries a lower penalty for the same act of rape under the old RPC provision.
Justice Perlas-Bernabe's observation on incongruent penalties was similarly noted by
the ponente in his Separate Concurring Opinion in Quimvel, albeit with respect to the
penalties for acts of lasciviousness committed against a child, but he added that the
proper remedy therefor is a corrective legislation:
Curiously, despite the clear intent of R.A. 7610 to provide for stronger deterrence and
special protection against child abuse, the penalty [reclusion temporal medium] when
the victim is under 12 years old is lower compared to the penalty [reclusion
temporal medium to reclusion perpetua] when the victim is 12 years old and below 18.
The same holds true if the crime of acts of lasciviousness is attended by an aggravating
circumstance or committed by persons under Section 31,106 Article XII of R.A. 7610, in
which case, the imposable penalty is reclusion perpetua. In contrast, when no
mitigating or aggravating circumstance attended the crime of acts of lasciviousness,
the penalty therefor when committed against a child under 12 years old is aptly higher
66
than the penalty when the child is 12 years old and below 18. This is because, applying
the Indeterminate Sentence Law, the minimum term in the case of the younger victims
shall be taken from reclusion temporal minimum, whereas as the minimum term in the
case of the older victims shall be taken from prision mayor medium to reclusion
temporal minimum. It is a basic rule in statutory construction that what courts may
correct to reflect the real and apparent intention of the legislature are only those which
are clearly clerical errors or obvious mistakes, omissions, and misprints, but not those
due to oversight, as shown by a review of extraneous circumstances, where the law is
clear, and to correct it would be to change the meaning of the law. To my mind, a
corrective legislation is the proper remedy to address the noted incongruent penalties
for acts of lasciviousness committed against a child.107
To support his theory that the provisions of R.A. No. 7610 are intended only for those
under the unique circumstances of the children being "exploited in prostitution or
subjected to other sexual abuse," Justice Caguioa quoted pertinent portions of the
Senate deliberation on the provision on attempt to commit child prostitution," which
concededly do not affect Article 336 of the RPC on acts of lasciviousness. Senator Lina
provided with a background, not of the provision of Section 5(b), but of Section 6 of
R.A. No. 7610 on attempt to commit child prostitution, thus:
Senator Lina. xxx Mr. President, Article 336 of Act No. 3815 will remain unaffected by
this amendment we are introducing here. As a backgrounder, the difficulty in the
prosecution of so-called "pedophiles" can be traced to this problem of having to catch
the malefactor committing the sexual act on the victim. And those in the law
enforcement agencies and in the prosecution service of the Government have found it
difficult to prosecute. Because if an old person, especially foreigner, is seen with a child
with whom he has no relation—blood or otherwise — and they are just seen in a room
and there is no way to enter the room and to see them in flagrante delicto, then it will
be very difficult for the prosecution to charge or to hale to court these pedophiles.
So we are introducing into this bill, Mr. President, an act that is already considered an
attempt to commit child prostitution. This, in no way, affects the Revised Penal Code
provisions on acts of lasciviousness or qualified seduction.108
Justice Caguioa's reliance on the foregoing statements of Senator Lina is misplaced.
While Senator Lina was referring to the specific provision on attempt to commit child
prostitution under Section 6, Article III of R.A. No. 7610, Senator Aquilino Pimentel Jr.'s
questions were directed more on the general effect of Senate Bill No. 1209 on the
existing provisions of the RPC on child sexual abuse, which elicited from Senator Lina
the intent to provide higher penalties for such crimes, to wit:
Senator Pimentel. I understand the Gentleman's opinion on that particular point. But
my question really is much broader. I am sorry that it would seem as if I am trying to be
very meticulous about this.
Senator Lina. It is all right.
Senator Pimentel. But the point is, there are existing laws that cover the sexual
abuse of children already, particularly female children. What I am trying to say is,

what effect will the distinguished Gentleman's bill have on these existing laws,
particularly provisions of the Revised Penal Code. That is why I tried to cite the
case of rape—having sexual intercourse with a child below 12 years of age,
seduction instances, qualified abduction, or acts of lasciviousness, involving
minors; meaning to say, female below 18 years of age. There are already existing
laws on this particular point.
Senator Lina. Mr. President, there will also be a difference in penalties when the
person or the victim is 12 years old or less. That is another effect. So, there is a
difference.
For example, in qualified seduction, the penalty present for all persons between age of
13 to 17 is prision correccional; for acts of lasciviousness under the proposal, similar
acts will be prision mayor if the child is 12 years or less.
Under qualified seduction, the present penalty is prision correccional, minimum and
medium. Under the proposal, it will be prision correccional maximum to prision
mayor minimum, and so on and so forth.
Even in facts of lasciviousness, with consent of the offended party, there is still a higher
penalty. In corruption of minors, there will be a higher penalty. When murder is
committed, and the victim is under 12 years or less, there will be a higher penalty
from reclusion temporal to reclusion perpetua. The penalty when the culprit is below 12
years or less will be reclusion perpetua. The intention is really to provide a strong
deterrence sand special protection against child abuse and exploitation.
Senator Pimentel. So, the net effect of this amendment, therefore, is to amend
the provisions of the Revised Penal Code, insofar as they relate to the victims
who are females below the age of 12.
Senator Lina. That will be the net effect, Mr. President.
Senator Pimentel. We probably just have to tighten up our provisions to make that
very explicit. Mr. President.
Senator Lina. Yes. During the period of individual amendments, Mr. President, that
can be well taken care of.109
Quoting the sponsorship speech of Senator Rasul and citing the case of People v.
Ritter,110 Justice Caguioa asserts that the enactment of R.A. No. 7610 was a response
of the legislature to the observation of the Court that there was a gap in the law because
of the lack of criminal laws which adequately protect street children from exploitation of
pedophiles.
Justice Caguioa is partly correct. Section 5(b) of R.A. No. 7610 is separate and distinct
from common and ordinary acts of lasciviousness under Article 336 of the RPC.
However, when the victim of such acts of lasciviousness is a child, as defined by law,
We hold that the penalty is that provided for under Section 5(b) of R.A. No. 7610
- i.e., reclusion temporal medium in case the victim is under 12 years old, and reclusion
temporal medium to reclusion perpetua when the victim is between 12 years old or
67
under 18 years old or above 18 under special circumstances - and not merely prision
correccional under Article 336 of the RPC. Our view is consistent with the legislative
intent to provide stronger deterrence against all forms of child abuse, and the evil
sought to be avoided by the enactment of R.A. No. 7610, which was exhaustively
discussed during the committee deliberations of the House of Representatives:
HON. [PABLO] P. GARCIA: Thank you, Mr. Chairman. This problem is also bogging
me for quite some time because there has been so much cry against this evil in our
society. But, then until now, neither the courts nor those in the medical world have come
up with the exact definition of pedophilia. I have two standard dictionaries—Webster
and another one an English dictionary, Random Dictionary and the term "pedophilia" is
not there. Although, we have read so much literature, articles about pedophilia and it is
commonly understood as we might say a special predilection for children. "Pedo"
coming from the Greek word "pedo." But whether this would apply to children of either
sex, say male or female is not also very clear. It is a sexual desire for its very unusual
out of the ordinary desire or predilection for children. Now, in our country, this has
gain[ed] notoriety because of activities of foreigners in Pagsanjan and even in Cebu.
But most of the victims I have yet to hear of another victim than male. Of course,
satisfaction of sexual desire on female, young female, we have instances of adults who
are especially attracted to the young female children, say below the ages of 12 or 15 if
you can still classify these young female children. So our first problem is whether
pedophilia would apply only to male victims or should it also apply to female victims?
I am trying to make this distinction because we have already a law in our jurisdiction. I
refer to the Revised Penal Code where sexual intercourse with a child below 12
automatically becomes statutory rape whether with or without consent. In other words,
force or intimidation is not a necessary element. If a person commits sexual intercourse
with a child below 12, then he automatically has committed statutory rape and the
penalty is stiff. Now, we have really to also think deeply about our accepted definition
of sexual intercourse. Sexual intercourse is committed against… or is committed by a
man and a woman. There is no sexual intercourse between persons of the same sex.
The sexual intercourse, as defined in the standard dictionaries and also as has been
defined by our courts is always committed between a man and a woman. And so if we
pass here a law, which would define pedophilia and include any sexual contact between
persons of different or the same sexes, in other words, homosexual or heterosexual,
then, we will have to be overhauling our existing laws and jurisprudence on sexual
offenses.
For example, we have in our Revised Penal Code, qualified seduction, under Article
337 of the Revised Penal Code, which provides that the seduction of a virgin over 12
and under 18 committed by any person in public authority: priest, house servant,
domestic guardian, teacher, or person who in any capacity shall be entrusted with the
education or custody of the woman seduced, shall be punished by etc. etc. Now, if we
make a general definition of pedophilia then shall that offender, who, under our present
law, is guilty of pedophilia? I understand that the consensus is to consider a woman or
a boy below 15 as a child and therefore a potential victim of pedophilia. And so, what
will happen to our laws and jurisprudence on seduction? The Chairman earlier
mentioned that possible we might just amend our existing provisions on crimes against
 68

chastity, so as to make it stiffer, if the victim or the offended party is a minor below a
certain age, then there is also seduction of a woman who is single or a widow of good 1. The accused commits the act of sexual 1. That sometime in the month of
reputation, over 12 but under 18. Seduction, as understood in law, is committed against intercourse or lascivious conduct. September 2011 x x x, the above-
a woman, in other words, a man having sexual intercourse with a woman. That is how named accused [Tulagan] x x x did
the term is understood in our jurisprudence. So I believe Mr. Chairman, that we should then and there, willfully, unlawfully
rather act with caution and circumspection on this matter. Let us hear everybody and feloniously inserted his finger
because we are about to enact a law which would have very drastic and transcendental into the vagina of said AAA,
effects on our existing laws. In the first place, we are not yet very clear on what is against her will and consent.
pedophilia. We have already existing laws, which would punish these offenses.

As a matter of fact, for the information of this Committee, in Cebu, I think that it is the 2. The said act is performed with a child 2. [T]he above-name accused, by
first conviction for an offense which would in our understanding amounts to pedophilia. exploited in prostitution or other sexual means of force, intimidation and
A fourteen-year old boy was the victim of certain sexual acts committed by a German abuse. Section 5 of R.A. No. 7610 deems with abuse of superior
national. The fiscal came up with an information for acts of lasciviousness under the as "children exploited in prostitution and strength forcibly laid complainant
Revised Penal Code and that German national was convicted for the offense charged. other sexual abuse" those children, AAA, x x x in a cemented
Now, the boy was kept in his rented house and subjected to sexual practices very whether male or female, (1) who for pavement, and x x x inserted his
unusual, tantamount to perversion but under present laws, these offenses such as... money, profit or any other consideration or finger into the vagina of said AAA,
well, it's too, we might say, too obscene to describe, cannot be categorized under our (2) due to the coercion or influence of against her will and consent.
existing laws except acts of lasciviousness because there is no sexual intercourse. any adult, syndicate or group, indulge in
Sexual intercourse in our jurisdiction is as I have stated earlier, committed by a man sexual intercourse or lascivious conduct.
and a woman. And it is a sexual contact of the organ of the man with the organ of the
woman. But in the case of this German national, if there was any sexual contact it was
between persons of the same sex. So, he was convicted. He's a detention prisoner and
there is also deportation proceeding against him. In fact, he has applied for voluntary 3. The child, whether male or female, is 3. AAA is a 9-year-old minor.
deportation, but he is to serve a penalty of prision correccional to prision mayor. So, below 18 years of age.
that is the situation I would say in which we find ourselves. I am loath to immediately
act on this agitation for a definition of a crime of pedophilia. There is no I think this In Quimvel, We ruled that the Information in Olivarez v. Court of Appeals112 is
Committee should study further the laws in other countries. Whether there is a distinct conspicuously couched in a similar fashion as the Information in the case against
crime known as pedophilia and whether this can be committed against a person of the Quimvel. We explained that the absence of the phrase "exploited in prostitution or
same sex or of another sex, or whether this crime is separate and distinct from the other subject to other sexual abuse" or even a specific mention of "coercion" or "influence"
crimes against honor or against chastity in their respective jurisdictions. This is a social was never a bar for us to uphold the finding of guilt against an accused for violation of
evil but it has to be addressed with the tools we have at hand. If we have to forge R.A. No. 7610. Just as We held that it was enough for the Information in Olivarez to
another tool or instrument to find to fight this evil, then I think we should make sure that have alleged that the offense was committed by means of ''force and intimidation," We
we are not doing violence for destroying the other existing tools we have at hand. And must also rule that the Information in the case at bench does not suffer from the alleged
maybe there is a need to sharpen the tools we have at hand, rather than to make a new infirmity.
tool to fight this evil. Thank you very much, Mr. Chairman. 111
We likewise held in Quimvel that the offense charged can also be elucidated by
Moreover, contrary to the claim of Justice Caguioa, We note that the Information consulting the designation of the offense as appearing in the Information. The
charging Tulagan with rape by sexual assault in Criminal Case No. SCC-6210 not only designation of the offense is a critical element required under Sec. 6, Rule 110 of the
distinctly stated that the same is "Contrary to Article 266-A, par. 2 of the Revised Penal Rules of Court for it assists in apprising the accused of the offense being charged. Its
Code in relation to R.A. 7610," but it also sufficiently alleged all the elements of violation inclusion in the Information is imperative to avoid surprise on the accused and to afford
of Section 5(b) of R.A. No. 7610, in this wise: him of opportunity to prepare his defense accordingly. Its import is underscored in this
case where the preamble states that the crime charged is "Acts of Lasciviousness in
Elements of Section 5(b) of R.A. No. Information in Criminal Case No. relation to Section 5(b) of R.A. No. 7610."
7610 SCC-6210 We held that for purposes of determining the proper charge, the term "coercion or
influence" as appearing in the law is broad enough to cover "force and intimidation" as
used in the Information; in fact, as these terms are almost used synonymously, it is then

"of no moment that the terminologies employed by R.A. No. 7610 and by the
Information are different."113 We also ruled that a child is considered one "exploited in
prostitution or subjected to other sexual abuse" when the child indulges in sexual
intercourse or lascivious conduct "under the coercion or influence of any
adult."114 Thus, We rule that the above-quoted Information in Criminal Case No. SCC-
6210 sufficiently informs Tulagan of the nature and cause of accusation against him,
namely: rape by sexual assault under paragraph 2, Article 266-A of the RPC in relation
to R.A. No. 7610.
We also take this opportunity to address the position of Justice Caguioa and Justice
Perlas-Bernabe, which is based on dissenting opinions 115 in Olivarez and Quimvel.
Citing the Senate deliberations, the dissenting opinions explained that the phrase "or
any other consideration or due to coercion or influence of any adult, syndicate or group,"
under Section 5(b) of R.A. No. 7610, was added to merely cover situations where a
child is abused or misused for sexual purposes without any monetary gain or profit. The
dissenting opinions added that this was significant because profit or monetary gain is
essential in prostitution; thus, the lawmakers intended that in case all other elements of
prostitution are present, but the monetary gain or profit is missing, the sexually abused
and misused child would still be afforded the same protection of the law as if he or she
were in the same situation as a child exploited in prostitution.116
We partly disagree with the foregoing view. The amendment introduced by Senator
Eduardo Angara not only covers cases wherein the child is misused for sexual
purposes not because of money or profit, and coercion or intimidation, but likewise
expanded the scope of Section 5 of R.A. No. 7610 to cover not just child prostitution
but also "other sexual abuse" in the broader context of child abuse," thus:
Senator Angara. I refer to line 9, "who for money or profit." I would like to amend this,
Mr. President, to cover a situation where the minor may have been coerced or
intimidated into this lascivious conduct, not necessarily for money or profit, so that we
can cover those situations and not leave a loophole in this section.
This proposal I have is something like this: WHO FOR MONEY, PROFIT, OR ANY
OTHER CONSIDERATION OR DUE TO THE COERCION OR INFLUENCE OF ANY
ADULT, SYNDICATE OR GROUP INDULGE, etcetera.
The President Pro Tempore. I see. That would mean also changing the subtitle of
Section 4. Will it no longer be child prostitution?
Senator Angara. No, no. Not necessarily, Mr. President, because we are still talking
of the child who is being misused for sexual purposes either for money or for
consideration. What I am trying to cover is the other consideration. Because, here, it is
limited only to the child being abused or misused for sexual purposes, only for money
or profit.
I am contending, Mr. President, that there may be situations where the child may not
have been used for profit or ...
69
The President Pro Tempore. So, it is no longer prostitution. Because the essence of
prostitution is profit.
Senator Angara. Well, the Gentleman is right. Maybe the heading ought to be
expanded. But, still, the President will agree that that is a form or manner of child abuse.
The President Pro Tempore. What does the Sponsor say? Will the Gentleman kindly
restate the amendment?
ANGARA AMENDMENT
Senator Angara. The new section will read something like this, Mr. President:
MINORS, WHETHER MALE OR FEMALE, WHO FOR MONEY, PROFIT OR ANY
OTHER CONSIDERATION OR DUE TO THE COERCION OR INFLUENCE OF ANY
ADULT, SYNDICATE OR GROUP INDULGE IN SEXUAL INTERCOURSE, et cetera.
Senator Lina. It is accepted, Mr. President.
The President Pro Tempore. Is there any objection? [Silence] Hearing none, the
amendment is approved.
How about the title, "Child Prostitution," shall we change that too?
Senator Angara. Yes, Mr. President, to cover the expanded scope.
The President Pro Tempore. Is that not what we would call probably "child
abuse"?
Senator Angara. Yes, Mr. President.
The President Pro Tempore. Is that not defined on line 2, page 6?
Senator Angara. Yes, Mr. President. Child prostitution and other sexual abuse.
The President Pro Tempore. Subject to rewording. Is there any objection? [Silence]
Hearing none, the amendment is approved. Any other amendments? 117
Indeed, the Angara amendment explains not just the rationale of the body of Section
5(b) of R.A. No. 7610 to cover a loophole or situation where the minor may have been
coerced or intimidated to indulge in lascivious conduct. The amendment of
President Pro Tempore Laurel, however, also affects the title of Article III, Section 5 of
R.A. No. 7610, i.e., "Child Prostitution and Other Sexual Abuse." It is settled that if a
chapter and section heading has been inserted merely for convenience or reference,
and not as integral part of the statute, it should not be allowed to control
interpretation.118 To our mind, however, the amendment highlights the intention to
expand the scope of Section 5 to incorporate the broader concept of "child abuse,"
which includes acts of lasciviousness under Article 336 of the RPC committed against
"children," as defined under Section 3 of R.A. No. 7610. Records of the Senate
deliberation show that "child prostitution" was originally defined as "minors, whether
male or female, who, for money or profit, indulge in sexual intercourse or lascivious
conduct are deemed children exploited in prostitution." 119 With the late addition of the

phrase "or subject to other sexual abuse," which connotes "child abuse," and in line
with the policy of R.A. No. 7610 to provide stronger deterrence and special protection
of children against child abuse, We take it to mean that Section 5(b) also intends to
cover those crimes of child sexual abuse already punished under the RPC, and not just
those children exploited in prostitution or subjected to other sexual abuse, who are
coerced or intimidated to indulge in sexual intercourse or lascivious conduct. This is the
reason why We disagree with the view of Justice Perlas-Bernabe that the first proviso
under Section 5(b) — which provides that "when the victim is under twelve (12) years
of age, the perpetrators shall be prosecuted under x x x the Revised Penal Code, for
rape or lascivious conduct, as the case may be" — is a textual indicator that R.A. No.
7610 has a specific application only to children who are pre-disposed to "consent" to a
sexual act because they are "exploited in prostitution or subject to other sexual abuse,"
thereby negating the ponente's theory of general applicability.
In People v. Larin,120 We held that a child is deemed exploited in prostitution or
subjected to other sexual abuse, when the child indulges in sexual intercourse or
lascivious conduct (a) for money, profit, or any other consideration; or (b) under the
coercion or influence of any adult, syndicate or group. Under R.A. No. 7610, children
are "persons below eighteen years of age or those unable to fully take care of
themselves or protect themselves from abuse, neglect, cruelty, exploitation or
discrimination because of their age or mental disability or condition." Noting that the law
covers not only a situation in which a child is abused for profit, but also one in which a
child, through coercion or intimidation, engages in any lascivious conduct, We ruled
that Section 5(b) of R.A. No. 7610 penalizes not only child prostitution, the essence of
which is profit, but also other forms of sexual abuse of children. We stressed that this
is clear from the deliberations of the Senate, and that the law does not confine its
protective mantle only to children under twelve (12) years of age.
In Amployo v. People,121 citing Larin, We observed that Section 5 of R.A. No. 7610
does not merely cover a situation of a child being abused for profit, but also one in
which a child engages in any lascivious conduct through coercion or intimidation. As
case law has it, intimidation need not necessarily be irresistible. It is sufficient that some
compulsion equivalent to intimidation annuls or subdues the free exercise of the will of
the offended party. This is especially true in the case of young, innocent and immature
girls who could not be expected to act with equanimity of disposition and with nerves of
steel. Young girls cannot be expected to act like adults under the same circumstances
or to have the courage and intelligence to disregard the threat.
In Olivarez vs. Court of Appeals,122 We held that a child is deemed subjected to other
sexual abuse when the child indulges in lascivious conduct under the coercion or
influence of any adult. We found that the 16-year old victim in that case was sexually
abused because she was coerced or intimidated by petitioner to indulge in a lascivious
conduct. We stated that it is inconsequential that the sexual abuse occurred only once
because, as expressly provided in Section 3(b) of R.A. 7610, the abuse may be habitual
or not. We also observed that Article III of R.A. 7610 is captioned as "Child Prostitution
and Other Sexual Abuse" because Congress really intended to cover a situation where
the minor may have been coerced or intimidated into lascivious conduct, not
70
necessarily for money or profit, hence, the law covers not only child prostitution but also
other forms of sexual abuse.
In Garingarao v. People,123 We ruled that a child is deemed subject to other sexual
abuse when the child is the victim of lascivious conduct under the coercion or influence
of any adult. In lascivious conduct under the coercion or influence of any adult, there
must be some form of compulsion equivalent to intimidation which subdues the free
exercise of the offended party's free will. We further ruled that it is inconsequential that
sexual abuse under R.A. No. 7610 occurred only once. Section 3(b) of R.A. No. 7610
provides that the abuse may be habitual or not. Hence, the fact that the offense
occurred only once is enough to hold an accused liable for acts of lasciviousness under
R.A. No. 7610.
In Quimvel,124 We stressed that Section 5(a) of R.A. No. 7610 punishes acts pertaining
to or connected with child prostitution wherein the child is abused primarily for profit.
On the other hand, paragraph (b) punishes sexual intercourse or lascivious conduct
committed on a child subjected to other sexual abuse. It covers not only a situation
where a child is abused for profit but also one in which a child, through coercion,
intimidation or influence, engages in sexual intercourse or lascivious conduct. Hence,
the law punishes not only child prostitution but also other forms of sexual abuse against
children. This is even made clearer by the deliberations of the Senate, as cited in the
landmark ruling of People v. Larin. We also added that the very definition of "child
abuse" under Section 3(b) of R.A. No. 7610 does not require that the victim suffer a
separate and distinct act of sexual abuse aside from the act complained of, for it refers
to the maltreatment whether habitual or not, of the child. Thus, a violation of Section
5(b) of R.A. No. 7610 occurs even though the accused committed sexual abuse against
the child victim only once, even without a prior sexual offense.
In Caoili,125 We reiterated that R.A. No. 7610 finds application when the victims of
abuse, exploitation or discrimination are children or those "persons below 18 years of
age or those over but are unable to fully take care of themselves or protect themselves
from abuse, neglect, cruelty, exploitation or discrimination because of a physical or
mental disability or condition." It has been settled that Section 5(b) of R.A. No. 7610
does not require a prior or contemporaneous abuse that is different from what is
complained of, or that a third person should act in concert with the accused. Section 5
of R.A. No. 7610 does not merely cover a situation of a child being abused for profit,
but also one in which a child is coerced to engage in lascivious conduct.
Meanwhile, Justice Marvic Mario Victor F. Leonen partly agrees with the ponencia that
insertion of a finger into a minor's vagina deserves a higher penalty than prision
mayor under Article 266-A, paragraph 2 in relation to Article 266-B of the RPC.
However, he asserts that non consensual insertion of a finger in another's genitals is
rape by carnal knowledge under Article 266-A, paragraph 1 of the RPC. He also
reiterates his view in People v. Quimvel that Article 336 of the RPC has already been
rendered ineffective with the passage of R.A. No. 8353.
We stand by our ruling in Caoili that the act of inserting a finger in another's genitals
cannot be considered rape by carnal knowledge, thus:

The language of paragraphs 1 and 2 of Article 266-A of the RPC, as amended by R.A.
No. 8353. provides the elements that substantially differentiate the two forms of rape,
i.e., rape by sexual intercourse and rape by sexual assault. It is through legislative
process that the dichotomy between these two modes of rape was created. To broaden
the scope of rape by sexual assault, by eliminating its legal distinction from rape through
sexual intercourse, calls for judicial legislation which We cannot traverse without
violating the principle of separation of powers. The Court remains steadfast in confining
its powers within the constitutional sphere of applying the law as enacted by the
Legislature.
In fine, given the material distinctions between the two modes of rape introduced in
R.A. No. 8353, the variance doctrine cannot be applied to convict an accused of rape
by sexual assault if the crime charged is rape through sexual intercourse, since the
former offense cannot be considered subsumed in the latter. 126
We also maintain the majority ruling in Quimvel that Sec. 4 of R.A. No. 8353 did not
expressly repeal Article 336 of the RPC for if it were the intent of Congress, it would
have expressly done so. Apropos is the following disquisition in Quimvel:
x x x Rather, the phrase in Sec. 4 states: "deemed amended, modified, or repealed
accordingly" qualifies "Article 335 of Act No. 3815, as amended, and all laws, acts,
presidential decrees, executive orders, administrative orders, rules and regulations
inconsistent with or contrary to the provisions of [RA 8353]."
As can be read, repeal is not the only fate that may befall statutory provisions that are
inconsistent with RA 8353. It may be that mere amendment or modification would
suffice to reconcile the inconsistencies resulting from the latter law's enactment. In this
case, Art. 335 of the RPC, which previously penalized rape through carnal knowledge,
has been replaced by Art. 266-A. Thus, the reference by Art. 336 of the RPC to any of
the circumstances mentioned on the erstwhile preceding article on how the crime is
perpetrated should now refer to the circumstances covered by Art. 266-A as introduced
by the Anti-Rape Law.
We are inclined to abide by the Court's long-standing policy to disfavor repeals by
implication for laws are presumed to be passed with deliberation and full knowledge of
all laws existing on the subject. The failure to particularly mention the law allegedly
repealed indicates that the intent was not to repeal the said law, unless an irreconcilable
inconsistency and repugnancy exists in the terms of the new and old laws. Here, RA
8353 made no specific mention of any RPC provision other than Art. 335 as having
been amended, modified, or repealed. And as demonstrated, the Anti Rape Law, on
the one hand, and Art. 336 of the RPC, on the other, are not irreconcilable. The only
construction that can be given to the phrase "preceding article" is that Art. 336 of the
RPC now refers to Art. 266-A in the place of the repealed Art. 335. It is, therefore,
erroneous to claim that Acts of Lasciviousness can no longer be prosecuted under the
RPC.
It is likewise incorrect to claim that Art. 336 had been rendered inoperative by the Anti-
Rape Law and argue in the same breath the applicability of Sec. 5(b) of RA 7610. x x x
71
xxxx
If Art. 336 then ceased to be a penal provision in view of its alleged incompleteness,
then so too would Sec. 5(b) of RA 7610 be ineffective since it defines and punishes the
prohibited act by way of reference to the RPC provision.
The decriminalization of Acts of Lasciviousness under the RPC, as per Justice
Leonen's theory, would not sufficiently be supplanted by RA 7610 and RA 9262,
otherwise known as the Anti-Violence Against Women and their Children Law (Anti-
VAWC Law). Under RA 7610, only minors can be considered victims of the enumerated
forms of abuses therein. Meanwhile, the Anti-VAWC law limits the victims of sexual
abuses covered by the RA to a wife, former wife, or any women with whom the offender
has had a dating or sexual relationship, or against her child. Clearly, these laws do not
provide ample protection against sexual offenders who do not discriminate in selecting
their victims. One does not have to be a child before he or she can be victimized by
acts of lasciviousness. Nor does one have to be a woman with an existing or prior
relationship with the offender to fall prey. Anyone can be a victim of another's lewd
design. And if the Court will subscribe to Justice Leonen's position, it will render a large
portion of our demographics (i.e., adult females who had no prior relationship to the
offender, and adult males) vulnerable to sexual abuses. 127
To be sure, deliberation of Senate Bill No. 950 which became R.A. No. 8353 reveals
the legislative intent not to repeal acts of lasciviousness under Article 336 of the RPC
as a crime against chastity, but only to reclassify rape as a crime against persons, thus:
Senator Enrile: x x x As I indicated last week, I will support this bill but I would like to
clarify some points just to set the matters into the Record.
Mr. President, the first thing I would like to find out is the status of this bill — whether
this is going to be a statutory crime or a part of the crimes defined in the Revised Penal
Code.
There is a big difference between these two concepts, Mr. President, because all of us
who have studied law know in our course in Criminal Law two of crimes: Crimes which
we call malum prohibitum which are statutory crimes and mala in se or crimes that
would require intent. That is why we always recite the principle that actus non facit
reum, nisi mens sit rea. Because in every crime defined in the Revised Penal Code, we
required what they call a mens rea, meaning intent to commit a crime in almost all
cases: attempted, frustrated and consummated.
Now, am I now to understand, Madam Sponsor, that this type of crime will be taken out
of the Revised Penal Code and shall be covered by a special law making it a statutory
crime rather than a crime that is committed with the accompaniment of intent.
Senator Shahani: Mr. President, we will recall that this was the topic of prolonged
interpellations not only by Senator Enrile, but also by Senator Sotto. In consultation with
Senator Roco - we were not able to get in touch with Senator Santiago — we felt that
the purpose of this bill would be better served if we limited the bill to amending Article
335 of the Revised Penal Code, at the same time expanding the definition of rape,

reclassifying the same as a crime against persons, providing evidentiary requirements
and procedures for the effective prosecution of offenders, and institutionalizing
measures for the protection and rehabilitation of rape victims and for other purposes.
In other words, it stays within the Revised Penal Code, and rape is associated with
criminal intent.
Having said this, it means that there will be a new chapter. They are proposing a new
chapter to be known as Chapter III on rape, under Title 8 of the Revised Penal Code.
There it remains as a crime against persons and no longer as a crime against chastity,
but the criminal intent is retained.
Senator Enrile. So, the distinction between rape as a crime, although now
converted from a crime against chastity to a crime against persons, and
seduction and act of lasciviousness would be maintained. Am I correct in this,
Mr. President?
Senator Shahani. That is correct, Mr. President.128
In light of the foregoing disquisition, We hold that Tulagan was aptly prosecuted for
sexual assault under paragraph 2, Article 266-A of the RPC in Criminal Case. No. SCC-
6210 because it was alleged and proven that AAA was nine (9) years old at the time
he inserted his finger into her vagina. Instead of applying the penalty under Article 266-
B of the RPC, which is prision mayor, the proper penalty should be that provided in
Section 5(b), Article III of R.A. No. 7610, which is reclusion temporal in its medium
period. This is because AAA was below twelve (12) years of age at the time of the
commission of the offense, and that the act of inserting his finger in AAA's private part
undeniably amounted to "lascivious conduct."129 Hence, the proper nomenclature of the
offense should be Sexual Assault under paragraph 2, Article 266-A of the RPC, in
relation to Section 5(b), Article III of R.A. No. 7610.
Applying the Indeterminate Sentence Law, the maximum term of the indeterminate
penalty shall be that which could be properly imposed under the law, which is fifteen
(15) years, six (6) months and twenty (20) days of reclusion temporal. On the other
hand, the minimum term shall be within the range of the penalty next lower in degree,
which is reclusion temporal in its minimum period, or twelve (12) years and one (1) day
to fourteen (14) years and eight (8) months. Hence, Tulagan should be meted the
indeterminate sentence of twelve (12) years, ten (10) months and twenty-one (21) days
of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20)
days of reclusion temporal, as maximum.
In Criminal Case No. SCC-6211 for statutory rape, We affirm that Tulagan should suffer
the penalty of reclusion perpetua in accordance with paragraph 1(d), Article 266-A in
relation to Article 266-B of the RPC, as amended by R.A. No. 8353.
Damages
For the sake of consistency and uniformity, We deem it proper to address the award of
damages in cases of Sexual Assault under paragraph 2, Article 266-A of the RPC in
relation to Section 5(b) of R.A. No. 7610, and Acts of Lasciviousness under Article 336
72
of the RPC in relation to Section 5(b) of R.A. No. 7610. Considering that the imposable
penalties for the said two crimes are within the range of reclusion temporal, the award
of civil indemnity and moral damages should now be fixed in the amount of P50,000.00
each. The said amount is based on People v. Jugueta130 which awards civil indemnity
and moral damages in the amount of P50,000.00 each in cases of homicide where the
imposable penalty is reclusion temporal. In case exemplary damages are awarded due
to the presence of any aggravating circumstance, to set a public example, or to deter
elders who abuse and corrupt the youth, then an equal amount of P50,000.00 should
likewise be awarded.
The said award of civil indemnity, moral damages and exemplary damages should be
distinguished from those awarded in cases of: (1) Acts of Lasciviousness under Article
336 of the RPC where the imposable penalty is prision correccional, the amount of civil
indemnity and moral damages should now be fixed at P20,000.00 while exemplary
damages, if warranted, should also be P20,000.00; (2) Sexual Assault under paragraph
2, Article 266-A of the RPC where the imposable penalty is prision mayor, the award of
civil indemnity and moral damages should be fixed at P30,000.00 each, while the award
of exemplary damages, if warranted, should also be P30,000.00 pursuant to prevailing
jurisprudence;131 and (3) Lascivious conduct under Section 5(b) of R.A. No. 7610, when
the penalty of reclusion perpetua is imposed, and the award of civil indemnity, moral
damages and exemplary damages is P75,000.00 each.
The justification for the award of civil indemnity, moral damages and exemplary
damages was discussed in People v. Combate,132 as follows:
First, civil indemnity ex delicto is the indemnity authorized in our criminal law for the
offended party, in the amount authorized by the prevailing judicial policy and apart from
other proven actual damages, which itself is equivalent to actual or compensatory
damages in civil law. This award stems from Article 100 of the RPC which states, "Every
person criminally liable for a felony is also civilly liable."
Civil liability ex delicto may come in the form of restitution, reparation, and
indemnification. Restitution is defined as the compensation for loss; it is full or partial
compensation paid by a criminal to a victim ordered as part of a criminal sentence or
as a condition for probation. Likewise, reparation and indemnification are similarly
defined as the compensation for an injury, wrong, loss, or damage sustained. Clearly,
all of these correspond to actual or compensatory damages defined under the Civil
Code.
xxxx
The second type of damages the Court awards are moral damages, which are also
compensatory in nature. Del Mundo v. Court of Appeals expounded on the nature and
purpose of moral damages, viz.:
Moral damages, upon the other hand, may be awarded to compensate one for
manifold injuries such as physical suffering, mental anguish, serious anxiety,
besmirched reputation, wounded feelings and social humiliation. These damages must
be understood to be in the concept of grants, not punitive or corrective in nature,
 73

calculated to compensate the claimant for the injury suffered. Although incapable of
exactness and no proof of pecuniary loss is necessary in order that moral damages Civil Moral Exemplary
Crime
may be awarded, the amount of indemnity being left to the discretion of the court, it is Indemnity Damages Damages134
imperative, nevertheless, that (1) injury must have been suffered by the claimant, and
(2) such injury must have sprung from any of the cases expressed in Article 2219 and
Article 2220 of the Civil Code x x x. Acts of Lasciviousness P20,000.00 P20,000.00 P20,000.00
under Article 336 of the
Similarly, in American jurisprudence, moral damages are treated as "compensatory
RPC [Victim is of legal
damages awarded for mental pain and suffering or mental anguish resulting from a
age]
wrong." They may also be considered and allowed "for resulting pain and suffering, and
for humiliation, indignity, and vexation suffered by the plaintiff as result of his or her
assailant's conduct, as well as the factors of provocation, the reasonableness of the
force used, the attendant humiliating circumstances, the sex of the victim, [and] mental Acts of lasciviousness P50,000.00 P50,000.00 P50,000.00
distress." in relation to Section
5(b) of R.A. No. 7610
The rationale for awarding moral damages has been explained in Lambert v. Heirs of [Victim is a child under
Rey Castillon: "[T]he award of moral damages is aimed at a restoration, within the limits 12 years old or is
possible, of the spiritual status quo ante; and therefore, it must be proportionate to the demented]
suffering inflicted."

Corollarily, moral damages under Article 2220 of the Civil Code also does not fix the
amount of damages that can be awarded. It is discretionary upon the court, depending Sexual Abuse or P75,000.00 (If P75,000.00 (If P75,000.00 (If
on the mental anguish or the suffering of the private offended party. The amount of Lascivious Conduct penalty penalty penalty
moral damages can, in relation to civil indemnity, be adjusted so long as it does not under Section 5(b) of imposed imposed imposed
R.A. No. 7610 [Victim is reclusion is reclusion is reclusion
exceed the award of civil indemnity.
is a child 12 years old perpetua) perpetua) perpetua)
xxxx and below 18, or
above 18 under
Being corrective in nature, exemplary damages, therefore, can be awarded, not only special circumstances]
due to the presence of an aggravating circumstance, but also where the circumstances
of the case show the highly reprehensible or outrageous conduct of the offender. In
much the same way as Article 2230 prescribes an instance when exemplary damages
P50,000.00 (If P50,000.00 (If
may be awarded, Article 2229, the main provision, lays down the very basis of the
penalty penalty
award. Thus, in People v. Matrimonio, the Court imposed exemplary damages to deter
P50,000.00 (If penalty imposed is imposed is
other fathers with perverse tendencies or aberrant sexual behavior from sexually
imposed is within the within the within the
abusing their own daughters. Also, in People v. Cristobal, the Court awarded exemplary
range of reclusion range range
damages on account of the moral corruption, perversity and wickedness of the accused
temporal medium) of reclusion of reclusion
in sexually assaulting a pregnant married woman. In People of the Philippines v.
temporal temporal
Cristino Cañada, People of the Philippines v. Pepito Neverio and People of the
medium) medium)
Philippines v. Lorenzo Layco, Sr., the Court awarded exemplary damages to set a
public example, to serve as deterrent to elders who abuse and corrupt the youth, and
to protect the latter from sexual abuse.133
Sexual Assault under P30,000.00 P30,000.00 P30,000.00
In summary, the award of civil indemnity, moral damages and exemplary damages in Article 266-A(2) of the
Acts of Lasciviousness under Article 336 of the RPC, Acts of Lasciviousness in relation RPC [Victim is of legal
to Section 5(b) of R.A. No. 7610, Lascivious Conduct under Section 5(b) of R.A. No. age]
7610, Sexual Assault under paragraph 2, Article 266-A of the RPC, and Sexual Assault
in relation to Section 5(b) of R.A. No. 7610, are as follows:

Sexual Assault under P50,000.00 P50,000.00 P50,000.00
Article 266-A(2) of the
RPC in relation to
Section 5(b) of R.A.
No. 7610 [Victim is a
child under 12 years
old or is demented]
It is settled that an award of civil indemnity ex delicto is mandatory upon a finding of the
fact of rape, and moral damages may be automatically awarded in rape cases without
need of proof of mental and physical suffering. The award of exemplary damages is
also called for to set a public example and to protect the young from sexual abuse. As
to the civil liability in Criminal Case No. SCC-6210 for sexual assault under paragraph
2, Article 266-A of the RPC, in relation to Section 5(b) of R.A. No. 7610, Tulagan should,
therefore, pay AAA the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral
damages, and P50,000.00 as exemplary damages.
Anent the award of damages in Criminal Case No. SCC-6211 for statutory rape, We
modify the same in line with the ruling in People v. Jugueta,135 where We held that
"when the circumstances surrounding the crime call for the imposition of reclusion
perpetua only, there being no ordinary aggravating circumstance, the proper amounts
should be P75,000.00 as civil indemnity, P75,000.00 as moral damages, and
P75,000.00 as exemplary damages." Also in consonance with prevailing jurisprudence,
the amount of damages awarded shall earn interest at the rate of six percent (6%) per
annum from the finality of this judgment until said amounts are fully paid.
Over and above the foregoing, We observe that despite the clear intent of R.A. No.
7610 to provide for stronger deterrence and special protection against child abuse, the
penalty for violation of Section 5(b) of R.A. No. 7610 [reclusion temporal medium] when
the victim is under 12 years old is lower compared to the penalty [reclusion
temporal medium to reclusion perpetua] when the victim is 12 years old and below 18.
The same holds true if the crime of acts of lasciviousness is attended by an aggravating
circumstance or committed by persons under Section 31,136 Article XII of R.A. No. 7610,
in which case, the imposable penalty is reclusion perpetua. In contrast, when no
mitigating or aggravating circumstance attended the crime of acts of lasciviousness,
the penalty therefor when committed against a child under 12 years old is aptly higher
than the penalty when the child is 12 years old and below 18. This is because, applying
the Indeterminate Sentence Law, the minimum term in the case of the younger victims
shall be taken from reclusion temporal minimum,137 whereas as the minimum term in
the case of the older victims shall be taken from prision mayor medium to reclusion
temporal minimum.138 It is a basic rule in statutory construction that what courts may
correct to reflect the real and apparent intention of the legislature are only those which
are clearly clerical errors or obvious mistakes, omissions, and misprints,139 but not
those due to oversight, as shown by a review of extraneous circumstances, where the
law is clear, and to correct it would be to change the meaning of the law.140 Thus, a
74
corrective legislation is the proper remedy to address the noted incongruent penalties
for acts of lasciviousness committed against a child.
We further note that R.A. No. 8353 did not expressly repeal Article 336 of the RPC, as
amended. Section 4 of R.A. No. 8353 only states that Article 336 of the RPC, as
amended, and all laws, rules and regulations inconsistent with or contrary to the
provisions thereof are deemed amended, modified or repealed, accordingly. There is
nothing inconsistent between the provisions of Article 336 of the RPC, as amended,
and R.A. No. 8353, except in sexual assault as a form of rape. To recall, R.A. No. 8353
only modified Article 336 of the RPC, as follows: (1) by carrying over to acts of
lasciviousness the additional circumstances 141 applicable to rape, viz.: threat and
fraudulent machinations or grave abuse of authority; (2) by retaining the circumstance
that the offended party is under 12 years old, and including dementia as another one,
in order for acts of lasciviousness to be considered as statutory, wherein evidence of
force or intimidation is immaterial because the offended party who is under 12 years
old or demented, is presumed incapable of giving rational consent; and (3) by removing
from the scope of acts of lasciviousness and placing under the crime of rape by sexual
assault the specific lewd act of inserting the offender's penis into another person's
mouth or anal orifice, or any instrument or object into the genital or anal orifice of
another person. Hence, Article 336 of the RPC, as amended, is still a good law despite
the enactment of R.A. No. 8353 for there is no irreconcilable inconsistency between
their provisions. When the lascivious act is not covered by R.A. No. 8353, then Article
336 of the RPC is applicable, except when the lascivious conduct is covered by R.A.
No. 7610.
We are also not unmindful of the fact that the accused who commits acts of
lasciviousness under Article 336 of the RPC, in relation to Section 5 (b) of R.A. No.
7610, suffers the more severe penalty of reclusion temporal in its medium period, than
the one who commits Rape Through Sexual Assault, which is merely punishable
by prision mayor.
In People v. Chingh,142 We noted that the said fact is undeniably unfair to the child
victim, and it was not the intention of the framers of R.A. No. 8353 to have disallowed
the applicability of R.A. No. 7610 to sexual abuses committed to children. We held that
despite the passage of R.A. No. 8353, R.A. No. 7610 is still a good law, which must be
applied when the victims are children or those "persons below eighteen (18) years of
age or those over but are unable to fully take care of themselves or protect themselves
from abuse, neglect, cruelty, exploitation or discrimination because of a physical or
mental disability or condition."143
In Dimakuta, We added that where the lascivious conduct is covered by the definition
under R.A. No. 7610, where the penalty is reclusion temporal medium and the said act
is, likewise, covered by sexual assault under Art. 266-A, paragraph 2 of the RPC, which
is punishable by prision mayor, the offender should be liable for violation of Section
5(b), Article III of R.A. No. 7610, where the law provides the higher penalty of reclusion
temporal medium, if the offended party is a child. But if the victim is at least eighteen
(18) years of age, the offender should be liable under Art. 266-A, par. 2 of the RPC and
not R.A. No. 7610, unless the victim is at least 18 years old and she is unable to fully
 75

take care of herself or protect herself from abuse, neglect, cruelty, exploitation or
discrimination because of a physical or mental disability or condition, in which case, the
offender may still be held liable of sexual abuse under R.A. No. 7610. The reason for
the foregoing is that with respect to lascivious conduct, R.A. No. 7610 affords special
protection and stronger deterrence against child abuse, as compared to R.A. No. 83.53
which specifically amended the RPC provisions on rape.
Finally, despite the enactment of R.A. No. 8353 more than 20 years ago in 1997, We
had been consistent in our rulings in Larin, Olivarez, and Garingarao,
Quimvel and Caoili, all of which uphold the intent of R.A. No. 7610 to provide special
protection of children and stronger deterrence against child abuse. Judicial stability
compels to stand by, but not to abandon, our sound rulings: [1] that Section 5(b), Article
III of R.A. No. 7610 penalizes not only child prostitution, the essence of which is profit,
but also other forms of sexual abuse wherein a child engages in sexual intercourse or
lascivious conduct through coercion or influence; and [2] that it is inconsequential that
the sexual abuse occurred only once. Our rulings also find textual anchor on Section 5,
Article III of R.A. No. 7610, which explicitly states that a child is deemed "exploited in
prostitution or subjected to other sexual abuse," when the child indulges in sexual
intercourse or lascivious conduct for money, profit or any other consideration, or under
the coercion or influence of any adult, syndicate or group, as well as on Section 3(b),
Article I thereof, which clearly provides that the term "child abuse" refers to the
maltreatment, whether habitual or not, of the child which includes sexual abuse.
2. Guilty beyond reasonable doubt of Statutory Rape under Article 266-A(1)(d)
and penalized in Article 266-B of the Revised Penal Code, in Criminal Case
No. SCC-6211, and is sentenced to suffer the penalty of reclusion perpetua with
modification as to the award of damages. Appellant is ORDERED to PAY AAA
the amounts of P75,000.00 as civil indemnity, P75,000.00 as moral damages,
and P75,000.00 as exemplary damages.
Legal interest of six percent (6%) per annum is imposed on all damages awarded from
the date of finality of this Decision until fully paid.
Let a copy of this Decision be furnished the Department of Justice, the Office of the
Solicitor General, the Office of the Court Administrator, and the Presiding Justice of the
Court of Appeals, for their guidance and information, as well as the House of
Representatives and the Senate of the Philippines, as reference for possible statutory
amendments on the maximum penalty for lascivious conduct under Section 5(b), Article
III of R.A. No. 7610 when the victim is under 12 years of age [reclusion
temporal medium], and when the victim is 12 years old and below 18, or 18 or older
under special circumstances [reclusion temporal medium to reclusion perpetua] under
Section 3(a) of R.A. No. 7610.
SO ORDERED.

If the lawmakers disagreed with our interpretation, they could have easily amended the
law, just like what they did when they enacted R.A. No. 10591 144 [Amendment on the
provision of use of firearm in the commission of a crime], R.A. No.
10951145 [Amendments to certain penalty and fines under the Revised Penal Code] and
R.A. No. 10707146 [Amendments to the Probation Law] after We rendered People v.
Ladjaalam,147Corpuz v. People,148Colinares v. People and Dimakuta v. People,
respectively, and their silence could only be construed as acquiescence to our rulings.

WHEREFORE, PREMISES CONSIDERED, the appeal is DENIED. The Joint Decision

dated February 10, 2014 of the Regional Trial Court in Criminal Case Nos. SCC-6210
and SCC-6211, as affirmed by the Court of Appeals Decision dated August 17, 2015 in
CA-G.R. CR-HC No. 06679, is AFFIRMED with MODIFICATIONS. We find accused-
appellant Salvador Tulagan:

1. Guilty beyond reasonable doubt of Sexual Assault under paragraph 2, Article

266-A of the Revised Penal Code, in relation to Section 5(b) of Republic Act
No. 7610, in Criminal Case No. SCC-6210, and is sentenced to suffer the
indeterminate penalty of twelve (12) years, ten (10) months and twenty-one (21)
days of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and
twenty (20) days of reclusion temporal, as maximum. Appellant
is ORDERED to PAY AAA the amounts of P50,000.00 as civil indemnity,
P50,000.00 as moral damages, and P50,000.00 as exemplary damages.

G.R. No. 171863 August 20, 2008
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
THE HONORABLE COURT OF APPEALS (Second Division) and GASPAR
OLAYON, respondents.
The then 22-year old herein respondent Gaspar Olayon was charged with violation
of Section 10(a) of Republic Act No. 7610 (The Special Protection of Children against
Abuse, Exploitation, and Discrimination Act) in two separate Informations filed before
the Regional Trial Court (RTC) of Pasig City, of which the then 14-year old AAA was
alleged to be the victim.
Criminal Case No. 112571 alleged that
On or about 10:00 a.m. of January 27, 1997 in Taguig, Metro Manila and within the
jurisdiction of this Honorable Court, the accused, with lewd designs, did then and there
willfully, unlawfully and feloniously have sexual intercourse with and commit lewd and
lascivious acts upon the person of [AAA], a minor, fourteen (14) years of
age.1 (Underscoring supplied)
Criminal Case No. 112572 alleged that
On or about 2:00 p.m. of January 27, 1997 in Taguig, Metro Manila and within the
jurisdiction of this Honorable Court, the accused, with lewd designs, did then and there
willfully, unlawfully and feloniously have sexual intercourse with and commit lewd and
lascivious acts upon the person of [AAA], a minor, fourteen (14) years of
age.2 (Underscoring supplied)
Respondent was also charged for acts of lasciviousness before the RTC of Taguig,
docketed as Criminal Case No. 116350, of which the same then 14-year old AAA was
alleged to be the victim. The case was transferred to the Pasig City RTC and
consolidated with Criminal Case Nos. 112571-72. 3 The three cases were jointly tried.4
After trial, Branch 158 of the Pasig City RTC, by Decision of January 15, 2002, acquitted
respondent in Criminal Case No. 116350 (for acts of lasciviousness).5 It, however,
convicted respondent of violation of Section 10 (a) of Republic Act (R.A.) No. 7610 in
Criminal Case Nos. 112571-72 in this wise:
x x x The accused, Olayon admitted his sexual liaisons with [AAA]. His defenses are:
1) [AAA] is his sweetheart and 2) whatever happened to them in terms of these sexual
liaisons, occurred with the consent of [AAA]. Although the testimony of [AAA] denies
she consented to the sexual liaisons, the evidence did not support it.
The events that occurred on January 27, 1997 at the house of one Duke Espiritu show
that [AAA] went with Olayon to that place voluntarily. First, she was fetched from a
tricycle stand and it took them another ride to go to the house of Espiritu. If indeed she
was forced to board the tricycle, she could have resisted and shouted for help
considering that there were normally people around in a tricycle stand, waiting for rides.
If she indeed resisted and showed any manifestation in this regard, people could have
76
easily helped her in resisting whatever it was Olayon wanted. Second, at the house of
Espiritu she could have easily shouted for help since it was located near a road and a
pathway. x x x
xxxx
Although the sexual liaisons that occurred on January 27, 1997 were with the consent
of [AAA] who at that time was only 14 years of age, Olayon cannot escape responsibility
because he took advantage of [AAA’s] minority to have these sexual liaisons,
even if they were with her consent. Consent is not an accepted defense in this special
law. He violated then Republic Act No. 7610, Section 10(a) which provides:
Section 10(a) – Any person who shall commit any other acts of child abuse, cruelty or
exploitation or be responsible for other conditions prejudicial to the child’s development
including those covered by Article 59 of Presidential Decree No. 603, as amended,
shall suffer the penalty of prision mayor in its minimum period.
x x x x6 (Emphasis and underscoring supplied)
Thus the trial court disposed:
WHEREFORE, Gaspar Olayon y Matubis a.k.a Eric Ramirez is found guilty beyond
reasonable doubt for having violated Republic Act No. 7610, Section 10 (a) in Criminal
Case Nos. 112571-72 and is sentenced to suffer in prison the penalty of six (6) years,
eight (8) months and one (1) day to seven (7) years and four (4) months of prision
mayor for each count. He is acquitted in Criminal Case No. 116350.
Costs against the accused.
SO ORDERED.7
On appeal by respondent,8 the Court of Appeals, answering in the negative the issue
of whether consensual sexual intercourse with a minor is classified as child abuse
under Section 10 of RA No. 7610, reversed the trial court’s decision
and acquitted respondent, by Decision9 of January 13, 2006, reasoning as follows:
"Acts of child abuse" under Section 10 (a) of R.A. 7610 refers to those acts listed under
Sec. 3(b) of R.A. 7610, which reads as follows:
Sec. 3. Definition of Terms –
(a) x x x
(b) "Child Abuse" refers to maltreatment, whether habitual or not, of the child which
includes any of the following:
1) Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional
maltreatment;
2) Any act or deeds [sic] or words [sic] which debases, degrades or demeans the
intrinsic worth and dignity of a child as a human being;

3) Unreasonable deprivation of his basic needs for survival, such as food and shelter;
or
4) Failure to immediately give medical treatment to an injured child resulting in serious
impairment of his growth and development or in his permanent incapacity or death.
Consensual sexual intercourse between OLAY[O]N and [AAA] does not fall under
the "sexual abuse" definition [in Section 5 of R.A. No. 7610] which is a completely
distinct and separate offense from "child abuse," [under Section 10] because "sexual
abuse" pertains to and is associated with "child prostitution" [as defined in Section
5]. "Sexual abuse" is defined separately under Section 5 of R.A. 7610, which reads
as follows:
Sec. 5. Child Prostitution and Other Sexual Abuse – Children, whether male or female,
who for money, profit or any other consideration or due to the coercion or influence of
any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are
deemed to be children exploited in prostitution and other sexual abuse.
Moreover, for the act of intercourse between OLAY[O]N and [AAA] to be considered
sexual abuse [under Section 5], such intercourse should have occurred due to
coercion or intimidation. In the case at bench, neither coercion nor intimidation were
found to have been present, consent having been freely given.10 (Emphasis, italics
and underscoring supplied)
Hence, the present petition for certiorari11 of the People under Rule 65, alleging that
the Court of Appeals acted with grave abuse of discretion amounting to lack or excess
of jurisdiction
x x x IN ACQUITTING RESPONDENT OLAYON OF THE TWO (2) COUNTS OF
CHILD ABUSE UNDER SECTION 10(A) OF R.A. 7610 DESPITE THE FACT THAT
THE SEXUAL ACTS COMMITTED BY RESPONDENT OLAYON ON THE MINOR
PRIVATE COMPLAINANT ARE CLEARLY WITHIN THE TERM "OTHER ACTS OF
NEGLECT, ABUSE, CRUELTY OR EXPLOITATION AND OTHER CONDITIONS
PREJUDICIAL TO THE CHILD’S DEVELOPMENT" DECLARED PUNISHABLE
UNDER SECTION 10(A) OF R.A. 7610.12 (Emphasis and underscoring supplied)
The record shows that the Pasig City Prosecutor’s Office found that the acts of
respondent did not amount to rape as they were done with the consent of the 14-year
old AAA.13 Nevertheless, it found the acts constitutive of "violations of [Republic] Act
No. 7610," hence, its filing of the above-quoted Informations for violation of Section
10(a).14
The Informations alleged that respondent, "with lewd designs did willfully, unlawfully,
and feloniously have sexual intercourse with and commit lewd and lascivious acts upon
the person of [AAA], a minor, fourteen (14) years of age." 15
Section 10(a) of R.A. No. 7610 under which respondent was charged in each of the two
cases provides:
77
SECTION 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other
Conditions Prejudicial to the Child's Development. —
(a) Any person who shall commit any other acts of child abuse, cruelty or exploitation
or be responsible for other conditions prejudicial to the child's development including
those covered by Article 59 of Presidential Decree No. 603, as amended, but not
covered by the Revised Penal Code, as amended, shall suffer the penalty of prision
mayor in its minimum period. (Underscoring supplied),
Section 5(b), upon the other hand, provides:
SEC. 5. Child Prostitution and Other Sexual Abuse. — Children, whether male or
female, who for money, profit, or any other consideration or due to the coercion or
influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious
conduct, are deemed to be children exploited in prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be
imposed upon the following:
xxxx
(b) Those who commit the act of sexual intercourse or lascivious conduct with a child
exploited in prostitution or subject to other sexual abuse; Provided, That when the
victims is under twelve (12) years of age, the perpetrators shall be prosecuted under
Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the
Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided,
That the penalty for lascivious conduct when the victim is under twelve (12) years of
age shall be reclusion temporal in its medium period; (Italics in the original, emphasis
and underscoring supplied)
As Section 10 refers to acts of child abuse prejudicial to the child’s
development other than child prostitution and other sexual abuse 16 under Section 5,
attempt to commit child prostitution,17 child trafficking,18 attempt to commit child
trafficking,19 and obscene publications and indecent shows,20 the Court of Appeals did
not commit grave abuse of discretion in holding that "x x x ‘sexual abuse’ [as defined
under Section 5] x x x is a completely distinct and separate offense from ‘child abuse’
[as defined under Section 10]."
Consensual sexual intercourse or even acts of lasciviousness with a minor who is 12
years old or older could constitute a violation of Section 5(b) of R.A. No. 7610. For
Section 5(b) punishes sexual intercourse or lascivious conduct not only with a child
exploited in prostitution but also with a child subjected to other sexual abuse.21
Section 2(g) of the Rules and Regulations on the Reporting and Investigation of Child
Abuse Cases, promulgated to implement R.A. No. 7610, defines "sexual abuse" as
including "the employment, use, persuasion, inducement, enticement or coercion of a
child to engage in, or assist another person to engage in, sexual intercourse or
lascivious conduct or the molestation, prostitution, or incest with children."
(Underscoring supplied)
 78

For consensual sexual intercourse or lascivious conduct with a minor, who is not [ GR No. 128777, Oct 07, 1998 ]
exploited in prostitution, to thus fall within the purview of Section 5(b) of R.A. No. 7610,
"persuasion, inducement, enticement or coercion" of the child must be present. PEOPLE v. ERNESTO LARIN Y BONDAD

In People v. Larin,22 the information alleged that the therein accused took advantage of Republic Act No. 7610 penalizes child prostitution and other sexual abuses. It was
his authority, influence, and moral ascendancy as trainor/swimming instructor of the enacted in consonance with the policy of the State to "provide special protection to
minor victim23 which the Court found constituted "psychological coercion." 24 In children from all forms of abuse." The Court thus applies this law to the present case
convicting the therein accused for lascivious acts, the Court held: and grants the victim the full vindication and protection that RA 7610 accords to this
helpless sector of society.
It must be noted that [Republic Act No. 7610] covers not only a situation in which a child
is abused for profit, but also one in which a child, through coercion or intimidation,
engages in any lascivious conduct.25 (Emphasis and underscoring supplied)
Statement of the Case
And even in Malto v. People26 wherein the accused was convicted for violation of
Section 5(b) of R.A. No. 7610, the information alleged, and the prosecution proved, that
the therein accused who was the minor’s professor obtained the minor’s consent by Ernesto Larin seeks reversal of the Decision [1] of the Regional Trial Court of Calamba,
taking advantage of his relationship and moral ascendancy to exert influence on her. Laguna, Branch 34, which found him guilty of violating Section 5(b) of RA 7610.[2] The
decretal portion of the appealed Decision reads:
In the case at bar, even if respondent were charged under Section 5(b), instead of
Section 10(a), respondent would just the same have been acquitted as there was no
allegation that an element of the offense – coercion or influence or intimidation "ACCORDINGLY, this Court finds accused Ernesto Larin y Bondad GUILTY beyond
– attended its commission. reasonable doubt of the crime of violation of Section 5(b) of Republic Act No. 7610 and
hereby sentences him to suffer the penalty of [r]eclusion [p]erpetua with all its attendant
In light of the foregoing disquisition, the petition is DENIED. SO ORDERED. accessory penalty and to indemnify XXX YYY [in] the sum of ONE HUNDRED
THOUSAND (P100,000.00) PESOS as moral damages.
357 Phil. 987
"Pursuant to Supreme Court Administrative Circular No. 2-92 dated January 20, 1992,
the bail bond posted by the accused for his provisional liberty is hereby cancelled and
accused is ordered confined at the National Penitentiary pending resolution of his
appeal."

State Prosecutor Lilian Doris S. Alejo accused herein appellant of violating Section 5(b),
in relation to Section 31(e) of RA 7610, in the following Information [3] dated May 27,
1996:

"The undersigned, upon the prior sworn complaint of the offended party, fourteen (14)
year old XXX YYY, assisted by her parents Spouses Rene and Susan YYY, accuses
ERNESTO LARIN Y BONDAD of violation of Sec. 5(b) in relation to Sec. 31(e) of RA
7610 (An Act Providing for Stronger Deterrence and Special Protection Against Child
Abuse, Exploitation and Discrimination, Providing Penalties for its Violation and for
Other Purposes) committed as follows:

"That on or about April 17, 1996, inside the ladies' shower room located at the Baker's
Hall, UP Los Baños, Laguna, and within the jurisdiction of this Honorable Court, the
above-named accused, who is a public employee of the U.P. Los Baños, by taking
advantage of his authority, influence and moral ascendancy as trainor/swimming
instructor of minor XXX YYY, and through moral compulsion, did then and there,
willfully, unlawfully and feloniously, commit lascivious conduct on the person of said

minor XXX YYY by shaving her pubic hair, performing the lewd act of cunnilingus on
her, licking her breasts, forcing her to hold and squeeze his penis; and forcibly kissing
her on the cheeks and lips the day after, against her will and consent, to her damage
and prejudice."[4]
When arraigned on July 17, 1996,[5] the appellant, with the assistance of Counsel de
Parte Cayetano T. Santos, entered a plea of not guilty and thereafter waived the pretrial
proceedings. After trial in due course, the court a quo rendered its assailed Decision.
Hence, this appeal.[6]
Statement of Facts Version of the Prosecution
The prosecution presented (1) XXX YYY, the complainant herself; (2) Dr. Nectarina
Rabor-Fellizar, who examined and determined that XXX had not been raped, though
her pubic hair was partially shaved; (3) Susan YYY, the victim's mother; and (4)
Elizabeth Ventura, a practicing clinical child psychologist. Their testimonies were
summarized by the trial court as follows:
"On April 17, 1996, at around 4:00 o'clock in the afternoon, after a practice swim at the
university pool in Baker's Hall, U.P. Los Baños, [private complainant] proceeded to the
bath house to shower and dress up; unknown to her, accused followed and then
instructed her to remove the towel wrapped around her; clad in her swimsuit, accused
again ordered her to undress to allow him to shave her public hair which he allegedly
noticed was visible [sic]; accused then went outside while she undressed and wrapped
a towel around her body; when the accused came back, he asked her to sit down while
he took a squatting position in front of her holding on to a shaving instrument; but
instead of shaving her pubic hair as he committed to do, accused performed the act of
cunnilingus; she backed away saying "Nandidiri ako" but accused kept on saying
"Huwag mong lagyan ng malisya"; accused then asked her to stand up and told her to
simply pretend that he was her boyfriend and thereupon accused removed the right cap
of her brassiere and licked her right breast while touching her vagina at the same time;
she was then told to lie down but she sat down instead and again accused performed
the act of cunnilingus on her as she repeatedly said "Nandidiri ako."; accused then told
her to stand up as he pulled down his shorts and forced her to hold and squeeze his
penis saying "if your boyfriend will do this, just tell him, 'huwag mo itong ipapasok sa
katawan ko'"; thereafter, accused left after instructing her to shave her public hair; the
next day, she went to see the accused to return a book and there she told him that she
was confused, bothered and terribly upset with what happened and accused replied
"Ako rin. Hindi ako nakatulog kagabi at para mawala ang kaba mo, halik lang ang
kailangan." and forced her to kiss him on the right cheek and on the lips; that on the
night after the incident, she experienced a nightmare about rape and she then decided
to quit swimming; she told her mother about her decision as she narrated what the
accused actually did to her; she was then brought to Dr. Nectarina Rabor-Fellizar and
79
thereafter in [the] company of her parents, went to the National Bureau of Investigation
where she filed her complaint."[7]
Version of the Defense
During the trial, appellant denied committing the alleged acts. He added that he was
only a lifeguard at the University pool, and not a swimming instructor or trainor of the
victim. The defense also presented the following witnesses: (1) Patricio
Laurel,[8] lifeguard at UPLB (University of the Philippines, Los Baños); (2) Veneranda
Genio,[9] chairman of the UPLB PE Department; (3) Elmer Suñaz,[10] a student; and (4)
Prof. Almond Oquendo,[11] PE 1 instructor at UPLB who testified as a rebuttal witness.
The facts, as concisely narrated in the Appellant's Brief, [12] are as follows:
"x x x [T]hat on the day in question, there were around seven (7) people in the pool and
that XXX was not alone as she was with a classmate until 5:45 p.m. when they dressed
up. When the classmate left, [the appellant] even accompanied XXX to the boarding
area in the company of two (2) other girls and a security guard' (Ibid., p. 4)." [13]
Finding the above abbreviated narration insufficient, we hereby reproduce the trial
court's digest of the testimonies of the defense witnesses:[14]
"PATRICIO LAUREL, a lifeguard at UPLB who testified that he ha[d] known the
accused since 1992 and that by virtue of a university memorandum, they [were]
prohibited from conducting swimming lessons to high school students. He further
averred that on the day in question, he saw XXX and a companion still swimming in the
pool with another individual by the time he left the area, but that he ha[d] no knowledge
as to what transpired inside the premises of the bathhouse.
"VENERANDA L. GENIO, Chairman of the P.E. Department of UPLB with the rank of
Associate Professor, attested to the appointment of accused as a lifeguard in the P.E.
Department but belied the prosecution's claim that accused was a swimming instructor.
"ELMER SUÑAZ, a fourth year high school student at UP Rural High School, was at
Baker's Hall on April 17, 1996, and took a dip at the pool for about five minutes; that he
saw XXX in the pool talking to the accused but that he never saw XXX enter the
bathroom during the time that he was there and when he left, XXX was all alone in the
pool.
"ERNESTO LARIN, the accused himself, who vehemently denied the charge and
maintained that he was only a lifeguard and never a trainer of the victim in swimming.
Accused averred that on the day in question, there were around seven (7) people
swimming in the pool and that XXX was not alone as she was with a classmate until
5:45 p.m. when they dressed up. When the classmate left, he even accompanied XXX
to the boarding area in the company of two other girls and a security guard.
 80

"On rebuttal, the prosecution called to the witness stand defense witness Professor Section 5, Article III[16] of RA 7610, states:
Genio and Tony Ann A. Cortez, a college sophomore at UPLB, who averred that while
still in first year high, she tried out for the freshmen swimming team and singled out the "SEC. 5. Child Prostitution and Other Sexual Abuse. -- Children, whether male or
accused as her trainer; that for accused's efforts, their batch paid him P500.00 during female, who for money, profit, or any other consideration or due to the coercion or
the summer and P70.00 each during the semestral break. influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious
conduct, are deemed to be children exploited in prostitution and other sexual abuse.
"By way of sur-rebuttal, defense presented Almond Oquendo, swimming instructor at
UP Rural High who disclaimed the testimony of Tony Anne Cortez [o]n the matter of "The penalty of reclusion temporal in its medium period to reclusion perpetua shall be
her training by the accused and the amount of remuneration paid to the latter." imposed upon the following:

The Trial Court's Ruling x x x x x x x x x

"(b) Those who commit the act of sexual intercourse or lascivious conduct with a child
The court a quo found the testimony of XXX YYY worthy of full faith and credence. It
exploited in prostitution or subjected to other sexual abuse; Provided, That when the
reasoned that, unless motivated by a genuine desire to seek justice, a young girl like
victim is under twelve (12) years of age, the perpetrators shall be prosecuted under
her will not fabricate a story, undergo medical examination, appear in court and
Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the
announce to the whole world that she was sexually abused. The trial court also found
Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided,
that the defense failed to prove ill motive on the part of the private complainant and to
That the penalty for lascivious conduct when the victim is under twelve (12) years of
overcome the evidence adduced by the prosecution. Thus, it imposed upon appellant
age shall be reclusion temporal in its medium period; x x x."(Italics supplied.)
the penalty of reclusion perpetua and ordered him to pay the sum of P100,000 as moral
damages. The elements of the offense penalized under this provision are as follows:

1. The accused commits the act of sexual intercourse or lascivious conduct.

Assignment of Errors
2. The said act is performed with a child exploited in prostitution or subjected to other
sexual abuse.
In support of his appeal, appellant alleges:
3. The child, whether male or female, is below 18 years of age.
"A. That the lower court erred in finding the accused-appellant guilty of a violation of
A child is deemed exploited in prostitution or subjected to other sexual abuse, when the
Sec. 5 (b) of R.A. No. 7610.
child indulges in sexual intercourse or lascivious conduct (a) for money, profit, or any
other consideration; or (b) under the coercion or influence of any adult, syndicate or
"B. That the lower court erred in giving weight to the highly incredible and unnatural
group. Under RA 7610, children are "persons below eighteen years of age or those
testimony of the offended party as the lone eyewitness for the prosecution.
unable to fully take care of themselves or protect themselves from abuse, neglect,
cruelty, exploitation or discrimination because of their age or mental disability or
"C. That, assuming the accused-appellant to be guilty, the lower court erred in
condition."[17]
imposing the penalty of reclusion perpetua."[15]

In fine, appellant assails the sufficiency of the evidence adduced against him. It must be noted that the law covers not only a situation in which a child is abused for
profit; but also one in which a child, through coercion or intimidation, engages in any
lascivious conduct. Hence, the foregoing provision penalizes not only child prostitution,
the essence of which is profit, but also other forms of sexual abuse of children. This is
This Court's Ruling clear from the deliberations of the Senate:[18]

The appeal is unmeritorious. "Senator Angara. I refer to line 9, 'who for money or profit'. I would like to amend this,
Mr. President, to cover a situation where the minor may have been coerced or
First Issue: Sexual Abuse Under RA 7610
intimidated into this lascivious conduct, not necessarily for money or profit, so that we
 81

can cover those situations and not leave loophole in this section. "Senator Angara. Yes, Mr. President.

"The proposal I have is something like this: WHO FOR MONEY, PROFIT, OR ANY "The President Pro Tempore. Subject to rewording. Is there any objection? [Silence]
OTHER CONSIDERATION OR DUE TO THE COERCION OR INFLUENCE OF ANY Hearing none, the amendment is approved. x x x' (Italicization supplied.)
ADULT, SYNDICATE OR GROUP INDULGE, et cetera.
The defense argues that "there is no proof or allegation that complainant 'indulged in
"The President Pro Tempore. I see. That would mean also changing the subtitle of lascivious conduct' with the accused-appellant 'for money, profit or any other
Section 4. Will it no longer be child prostitution? consideration'"; or "that she was 'coerced or influenced' by accused-appellant 'to
indulge in lascivious conduct.'"[19]
"Senator Angara. No, no. Not necessarily, Mr. President, because we are still talking
of the child who is being misused for sexual purposes either for money or for The argument is untenable. That appellant sexually abused XXX YYY, in violation of
consideration. What I am trying to cover is the other consideration. Because, here, it is RA 7610, was duly alleged in the Information and proven during the trial.
limited only to the child being abused or misused for sexual purposes, only for money
or profit. The Information clearly states: "x x x [T]he above-named accused, x x x, by taking
advantage of his authority, influence and moral ascendancy as trainor/swimming
"I am contending, Mr. President, that there may be situations where the child may not instructor of minor XXX YYY, and through moral compulsion, did then and there,
have been used for profit or ... willfully, unlawfully and feloniously, commit lascivious conduct against the person of
said minor XXX YYY by shaving her pubic hair, performing the lewd act of cunnilingus
"The President Pro Tempore. So, it is no longer prostitution. Because the essence of on her, licking her breasts, forcing her to hold and squeeze his penis; and forcibly
prostitution is profit. kissing her on the cheeks and lips x x x." [20] (Italics supplied.)

"Senator Angara. Well, the Gentleman is right. Maybe the heading ought to be During the trial, the allegations in the Information were proved and established by the
expanded. But, still, the President will agree that that is a form or manner of child abuse. victim,[21] who testified:

"The President Pro Tempore. What does the Sponsor say? Will the Gentleman kindly Q XXX where were you on April 17, 1996?
restate the amendment?
A We went to Baker Hall at the UPLB campus to practice swimming.

Q Were you able to practice swimming?

A Yes, ma'am.
"ANGARA AMENDMENT
Q After practicing what did you do next if any?

A I went to the bath house or the lady shower room to shower and dress-up.
"Senator Angara. The new section will read something like this, Mr. President:
MINORS, WHETHER MALE OR FEMALE, WHO FOR MONEY, PROFIT, OR ANY Q What happened next, if any, when you were there in the shower room?
OTHER CONSIDERATION OR INFLUENCE OF ANY ADULT, SYNDICATE OR
A Mr. Larin followed me to the shower room.
GROUP INDULGE IN SEXUAL INTERCOURSE, et cetera.
Q Who is this Mr. Larin?

"Senator Lina. It is accepted, Mr. President. A He is Mr. Ernesto Larin, my swimming trainor for two years since 1994 when I was still a freshman.

Q Is he inside the chambers now? Will you point him out or describe him to this Honorable Court?
"The President Pro Tempore. Is there any objection? [Silence] Hearing none, the
amendment is approved. A That man (witness pointed to a man who when asked gave his name as Ernesto Larin alias Erning).

Q Mr. Larin followed you inside the shower room[;] what happened next, if any?
"How about the title, "Child Prostitution," shall we change that too?
A He ordered me to remove the towel around my body.

"Senator Angara. Yes, Mr. President, to cover the expanded scope. Q And did you remove the towel around your body or did you not?

A I did.
"The President Pro Tempore. Is that not what we would call probable 'child abuse'?
 82

Q What happened next, if any? Q And then what happened?

He ordered me to remove the swimsuit so that he could shave the pubic hair which he noticed was showing out of my A And then he licked my vagina again.
A
swimsuit.
Q What did you do, if any, when he was licking your vagina?
Q What happened next, if any?
A I kept on telling him "nandidiri ako."
A He went out of the bath house and then I decided to remove my swimsuit.
Q What did he do when you told him "nandidiri ka?"
Q What happened next, if any?
A He stood up and ordered me to stand up.
A He came back when I ha[d] a towel around my body.
Q What happened next, if any?
Q After he actually came back, what did he do, if any?
A He pulled down his shorts and he forced me to hold and squeeze his penis pretending that he was my boyfriend.
A He made [me] sit down and then he squatted in front of me with the shaving instrument.
Q Pretending or asking or telling you?
Q Did he do anything if any?
A Telling me to pretend that he was my boyfriend.
A Yes, ma'am.
Q What else did he tell you, if any?
Fiscal
Your Honor may we make of record that the witness is sobbing.
ALEJO: A He said that if your boyfriend will do this just tell him "huwag mo itong ipasok sa katawan ko."

A Instead of shaving, he licked my vagina. Q Thereafter, what else happened?

Q What did you do, if any, when he licked your vagina? A He told me to shave my public hair and he went out.

A I backed out, telling him "nandidiri ako" but he kept on saying "huwag mong lagyan ng malisya". Q And then after he left, was there anything else that happened?

Q After that what happened next, if any? A I changed then and went out.

A He made me stand up. Q Was there any other incident if any?

Q And then? A Then he said the reason why he let me [touch] his penis was to let me know how it [felt].

As I stood up he said "boyfriends and girlfriends in college indulge in [an] act like this" so he told me to pretend that he Q After that is there any other incident?
A
was my boyfriend.
A I went home already.
Q After that what else did he do, if there [was] anything else that he did?
Q After you went home what happened next? Did you report back to school the next day or not?
A He said that guys do like this and he attempted to remove the towel around my body.
A No I ha[d] to return the book.
Q And was he able to remove the towel around your body?
Q So you returned the book, to whom?
A Yes, ma'am.
A To Mr. Larin.
Q After that what did he do next if there is anything else that he did?
Q What happened when you returned the book to Mr. Larin, if any?
A He removed the right cap of my brassiere.
A I told him that "nakukunsensya ako" and he replied that "ako rin hindi ako makatulog kagabi."
Q What did he do, if any?
Q By words "nakukusensya ako," what exactly d[id] you mean?
A He licked my right breast and at the same time he touched my vagina.
A I was confused, bothered and terribly upset about what had happened.
Q And then what happened?
Why then did you say that "nakukusensya ka" when what you really mean[t] was you were bothered, confused and
Q
A He told me to lie down on the bench. terribly upset?

Q Did you lie down on the bench? A I'm not good [at] expressing myself in Tagalog.

A No, I did not. Q After telling him "na nakukusensya ka" and [his] telling you na "hindi siya nakatulog kagabi" what else happened?

Q What happened when you did not lie down? A He told me na "para mawala ang kaba mo, halik lang ang kailangan."

A Since I did not lie down I sat down on the bench. Q What happened, if any?
 83

A He forced me to kiss him at the right cheek and on the lips. "[T]he intentional touching, either directly or through clothing, of the genitalia, anus,
Q And after that what happened next, if there is any? groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia,
anus or mouth, of any person, whether of the same or opposite sex, with an intent to
A I went home already.
abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person,
Q
Incidentally XXX on April 17, 1996 when you narrated [t]his incident which you just said [sic] a while ago were there bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person."
any other person inside the bath room?

A There was nobody inside the bath room. In this case, appellant shaved the pubic hair of the victim, performed cunnilingus on
her, licked her breast, touched her genitalia, and forced her to hold his sexual organ.
Q You said that you went home already[;] at home was there any unusual incident that occurred?
These actions cannot be brushed aside as innocent; rather, they manifest sexual
A I had a nightmare about rape and then I decided the next day to quit swimming. perversity and lewd intentions. Larin was the swimming instructor or trainor of XXX, a
Q When you decided to quit swimming, what happened?
mere child. We find no justification for Larin's conduct.

A I told my mother about my decision and after that she found out about what Mr. Larin did to me."[22]
Second Issue: Credibility of the Offended Party
Appellant disputes the credibility of the victim, contending that it was unnatural for her
to "mechanically submi[t]" to his "lascivious suggestions and advances," to remove her
swimsuit, allow appellant to shave her pubic hair and simply utter "nandidiri ako" in
feeble protest while appellant performed cunnilingus on her.
We do not agree. Well-entrenched is the rule that the trial court's evaluation of the
credibility of a witness and his or her testimony is entitled to the highest degree of
respect. Unlike appellate magistrates, a trial judge can observe the demeanor of a
witness on the stand and is, thus, in a better position to assess the truthfulness of the
testimony.[23] In the absence of any clear showing that the trial judge had overlooked,
misunderstood or misapplied some facts or circumstances of weight and substance,
this Court will not disturb such finding.[24] The defense failed to present any convincing
argument to justify a deviation from this rule.
The victim's testimony, given in a categorical, straightforward, spontaneous and candid
manner, is worthy of faith and belief.[25] No proof of ill motive on her part to falsely
accuse and testify against appellant has been offered. We stress that no young and
decent girl like XXX would fabricate a story of sexual abuse, subject herself to medical
examination and undergo public trial, with concomitant ridicule and humiliation, if she
is not motivated by a sincere desire to put behind bars the person who assaulted her.[26]
Coercion or Influence
Appellant also asserts that no proof was presented that he gave private complainant
money or any other consideration, or that he coerced or influenced her to "indulge in
lascivious conduct.'
We hold otherwise. The prosecution established that appellant employed moral and
psychological coercion on the victim. Dr. Elizabeth Ventura, a psychologist who made
a professional assessment of XXX, stated the following in her affidavit:
"That XXX's swimming trainor, a certain Mr. Ernesto Larin had built a relationship with
XXX for the past year before the incident in question. During that year, Mr. Larin
presented himself as a person XXX could trust. Mr. Larin would give XXX special
attention and be perceptive [of] XXX's needs and protective towards her. There was a
certain degree of manipulation by Mr. Larin as he would intimidate XXX by attacking
her self-esteem, after which he would offer himself as someone who could help solve
her inadequacies.
"XXX manifested all the symptoms of Post-Traumatic Stress Disorder, i.e.,
sleeplessness, nightmares, anxiousness about going back to school, paranoia and fear
that people would know and talk about what happened to her. At the same time, she is
angry at Mr. Larin for what he has done to her and how he could have manipulated and
intimidated her so."[28]

During her direct examination, she clarified the meaning of psychological coercion:
In sum, the prosecution presented proof beyond reasonable doubt that appellant,
through his moral ascendancy and influence over the fourteen-year-old XXX,
committed lascivious conduct upon her. "Q What exactly is a psychological coer[c]ion?

Acts that Constitute Lascivious Conduct A It involves the use of influence of a more powerful person who is in position of power.
It can be a parent or an adult but basically that person has to have had some kind of
Section 32, Article XIII of the Implementing Rules and Regulations of RA continued relationship with the child. It cannot happen that you just meet the child or
7610,[27] defines lascivious conduct, as follows: the other person or to submit right away to the person because in psychological
coercion, a relationship is built up with the victim and to my knowledge in this particular
case there was such, if I may refer to this case, there was such a relationship between
 84

[C]arla and her coach in swimming. Generally in psychological coercion there is a form of reclusion temporal, in its medium period, to reclusion perpetua.[35]
of trust. That is what I mean by relation. A trust in relation is built up and it is
understandable that this happened in this particular case because you know it was a The law, however, mandates that the "penalty provided for in this Act shall be imposed
skill that was being taught and at the same time, because a teacher cannot be effective in its maximum period if the offender is a public officer." [36] Larin's employment at UPLB
unless there [is] some kind of rapport. x x x" [29] as swimming instructor or, as he insists, a lifeguard[37] makes him a part of the civil
service[38] and a public officer.[39] Thus, we affirm the ruling of the trial court imposing
x x x x x x x x x upon him the maximum penalty of reclusion perpetua. Consistent with the express
provision of RA 7610, the penalty of perpetual absolute disqualification is likewise
"A I was saying that in everything that [C]arla communicated to me, I could say that meted upon appellant.[40]
the perpetrator continued to communicate or tried to continue that feeling of trust even
he was doing all of those things to her, so that made her particularly vulnerable and Damages
that is part of psychological coercion."[30]

Dr. Ventura explained why XXX, an intelligent child, succumbed to such lewd acts: The trial court ordered the appellant to pay the victim the sum of P100,000 as moral
damages. XXX YYY testified that she "was confused, bothered and terribly upset about
"COURT: Could you explain the utter submissiveness displayed by [C]arla to the acts what had happened."[41] In fact, the incident affected her profoundly that she suffered
committed by the accused considering that she is a very intelligent girl? nightmares and eventually decided to quit swimming. [42] While the award of moral
damages is clearly justified, this Court deems it proper to reduce the amount to
A It can happen to children, no matter how intelligent they are that they will submit P50,000, in view of prevailing jurisprudence.[43]
themselves to these acts because of what we refer to [in] psychology so basically there
was [a] trusting relationship that was established by the perpetrator or by the child WHEREFORE, the appeal is hereby DENIED and the assailed Decision
molester[,] and given that particular trust it was easy for this person, for the adult, to is AFFIRMED, but the award of moral damages is reduced to P50,000. Costs against
use this influence on the child."[31] appellant.. SO ORDERED.

It is an accepted rule that different people react differently to a given situation or type
of situation.[32] One cannot reasonably expect uniform reactions from victims of sexual
assault.[33] XXX's submissiveness to Larin's lascivious conduct does not exonerate him
from criminal liability, as the law does not require physical violence on the person of the
victim. Moral coercion or ascendancy is sufficient.

Third Issue: The Imposable Penaly

Appellant submits that the law does not provide the penalty in the event the victim, as
in this case, is above twelve (12) and below eighteen (18) years of age. Thus, he argues
for the imposition of prision correccional, the penalty for acts of lasciviousness under
Article 336 of the Revised Penal Code.

Appellant's argument is misleading. The penalty of reclusion temporal, in its medium

period, to reclusion perpetua is imposed by RA 7610 on those who perform sexual
intercourse with or lascivious conduct on a child exploited in prostitution or subjected
to any other form of sexual abuse. As earlier stated, RA 7610 defines child as a person
below eighteen (18) years of age, or one who is unable to fully take care of or protect
from abuse, neglect, cruelty, exploitation or discrimination because of a physical or
mental disability or condition.[34] Contrary to appellant's interpretation, the law does not
confine its protective mantle only to children under twelve (12) years of age. XXX, who
was fourteen (14) years of age when the crime was committed, is considered a child
for purposes of RA 7610. Her molester, therefore, may be punished with imprisonment
 85

G.R. No. 203335, February 18, 2014
JOSE JESUS M. DISINI vs. THE SECRETARY OF JUSTICE
These consolidated petitions seek to declare several provisions of Republic Act (R.A.)
10175, the Cybercrime Prevention Act of 2012, unconstitutional and void.
The Facts and the Case
The cybercrime law aims to regulate access to and use of the cyberspace. Using his
laptop or computer, a person can connect to the internet, a system that links him to
other computers and enable him, among other things, to:chanRoblesVirtualawlibrary
But petitioners claim that the means adopted by the cybercrime law for regulating
undesirable cyberspace activities violate certain of their constitutional rights. The
government of course asserts that the law merely seeks to reasonably put order into
cyberspace activities, punish wrongdoings, and prevent hurtful attacks on the system.
Pending hearing and adjudication of the issues presented in these cases, on February
5, 2013 the Court extended the original 120-day temporary restraining order (TRO) that
it earlier issued on October 9, 2012, enjoining respondent government agencies from
implementing the cybercrime law until further orders.
The Issues Presented

1. Access virtual libraries and encyclopedias for all kinds of information that he needs for research, study, amusement, upliftment, Petitioners challenge the constitutionality of the following provisions of the cybercrime
or pure curiosity; law that regard certain acts as crimes and impose penalties for their commission as
2. Post billboard-like notices or messages, including pictures and videos, for the general public or for special audiences like well as provisions that would enable the government to track down and penalize
associates, classmates, or friends and read postings from them; violators. These provisions are:chanRoblesVirtualawlibrary
3. Advertise and promote goods or services and make purchases and payments;
a. Section 4(a)(1) on Illegal Access;
4. Inquire and do business with institutional entities like government agencies, banks, stock exchanges, trade houses, credit card
b. Section 4(a)(3) on Data Interference;
companies, public utilities, hospitals, and schools; and
c. Section 4(a)(6) on Cyber-squatting;
5. Communicate in writing or by voice with any person through his e-mail address or telephone.

d. Section 4(b)(3) on Identity Theft;

This is cyberspace, a system that accommodates millions and billions of simultaneous
e. Section 4(c)(1) on Cybersex;
and ongoing individual accesses to and uses of the internet. The cyberspace is a boon
to the need of the current generation for greater information and facility of f. Section 4(c)(2) on Child Pornography;
communication. But all is not well with the system since it could not filter out a number g. Section 4(c)(3) on Unsolicited Commercial Communications;
of persons of ill will who would want to use cyberspace technology for mischiefs and
h. Section 4(c)(4) on Libel;
crimes. One of them can, for instance, avail himself of the system to unjustly ruin the
reputation of another or bully the latter by posting defamatory statements against him i. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;
that people can read.
j. Section 6 on the Penalty of One Degree Higher;

And because linking with the internet opens up a user to communications from others, k. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A. 10175;

the ill-motivated can use the cyberspace for committing theft by hacking into or l. Section 8 on Penalties;
surreptitiously accessing his bank account or credit card or defrauding him through
m. Section 12 on Real-Time Collection of Traffic Data;
false representations. The wicked can use the cyberspace, too, for illicit trafficking in
sex or for exposing to pornography guileless children who have access to the internet. n. Section 13 on Preservation of Computer Data;
For this reason, the government has a legitimate right to regulate the use of cyberspace o. Section 14 on Disclosure of Computer Data;
and contain and punish wrongdoings.
p. Section 15 on Search, Seizure and Examination of Computer Data;

Notably, there are also those who would want, like vandals, to wreak or cause havoc q. Section 17 on Destruction of Computer Data;
to the computer systems and networks of indispensable or highly useful institutions as
r. Section 19 on Restricting or Blocking Access to Computer Data;
well as to the laptop or computer programs and memories of innocent individuals. They
accomplish this by sending electronic viruses or virtual dynamites that destroy those s. Section 20 on Obstruction of Justice;
computer systems, networks, programs, and memories. The government certainly has t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and
the duty and the right to prevent these tomfooleries from happening and punish their
u. Section 26(a) on CICC’s Powers and Functions.
perpetrators, hence the Cybercrime Prevention Act.
 86

Some petitioners also raise the constitutionality of related Articles 353, 354, 361, and them as to the extent of the search, the methods to be used, and the systems to be
362 of the RPC on the crime of libel. tested. This is referred to as the “get out of jail free card.”6 Since the ethical hacker
does his job with prior permission from the client, such permission would insulate him
The Rulings of the Court from the coverage of Section 4(a)(1).

Section 4(a)(3) of the Cybercrime Law

Section 4(a)(1)
Section 4(a)(3) provides:chanRoblesVirtualawlibrary
Section 4(a)(1) provides:chanRoblesVirtualawlibrary
Section 4. Cybercrime Offenses. - The following acts constitute the offense of
Section 4. Cybercrime Offenses. - The following acts constitute the offense of
cybercrime punishable under this Act:chanRoblesVirtualawlibrary
cybercrime punishable under this Act:chanRoblesVirtualawlibrary
(a) Offenses against the confidentiality, integrity and availability of computer data and
(a) Offenses against the confidentiality, integrity and availability of computer data and
systems:chanRoblesVirtualawlibrary
systems:chanRoblesVirtualawlibrary
x x x x
(1) Illegal Access. - The access to the whole or any part of a computer system without
right.
(3) Data Interference. - The intentional or reckless alteration, damaging, deletion or
Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard deterioration of computer data, electronic document, or electronic data message,
required of laws that interfere with the fundamental rights of the people and should thus without right, including the introduction or transmission of viruses.
be struck down.
Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it seeks to
discourage data interference, it intrudes into the area of protected speech and
The Court has in a way found the strict scrutiny standard, an American constitutional
expression, creating a chilling and deterrent effect on these guaranteed freedoms.
construct,1 useful in determining the constitutionality of laws that tend to target a
class of things or persons. According to this standard, a legislative classification that
Under the overbreadth doctrine, a proper governmental purpose, constitutionally
impermissibly interferes with the exercise of fundamental right or operates to the
subject to state regulation, may not be achieved by means that unnecessarily sweep
peculiar class disadvantage of a suspect class is presumed unconstitutional. The
its subject broadly, thereby invading the area of protected freedoms. 7 But Section
burden is on the government to prove that the classification is necessary to achieve a
4(a)(3) does not encroach on these freedoms at all. It simply punishes what essentially
compelling state interest and that it is the least restrictive means to protect such
is a form of vandalism,8 the act of willfully destroying without right the things that belong
interest.2 Later, the strict scrutiny standard was used to assess the validity of laws
to others, in this case their computer data, electronic document, or electronic data
dealing with the regulation of speech, gender, or race as well as other fundamental
message. Such act has no connection to guaranteed freedoms. There is no freedom to
rights, as expansion from its earlier applications to equal protection. 3crallawlibrary
destroy other people’s computer systems and private documents.
In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the
All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in
application of the strict scrutiny standard since no fundamental freedom, like speech,
terrorem effect 9 or the fear of possible prosecution that hangs on the heads of citizens
is involved in punishing what is essentially a condemnable act - accessing the computer
who are minded to step beyond the boundaries of what is proper. But to prevent the
system of another without right. It is a universally condemned conduct. 4crallawlibrary
State from legislating criminal laws because they instill such kind of fear is to render
the state powerless in addressing and penalizing socially harmful conduct. 10 Here, the
Petitioners of course fear that this section will jeopardize the work of ethical hackers,
chilling effect that results in paralysis is an illusion since Section 4(a)(3) clearly
professionals who employ tools and techniques used by criminal hackers but would
describes the evil that it seeks to punish and creates no tendency to intimidate the free
neither damage the target systems nor steal information. Ethical hackers evaluate the
exercise of one’s constitutional rights.
target system’s security and report back to the owners the vulnerabilities they found in
it and give instructions for how these can be remedied. Ethical hackers are the
Besides, the overbreadth challenge places on petitioners the heavy burden of proving
equivalent of independent auditors who come into an organization to verify its
that under no set of circumstances will Section 4(a)(3) be valid. 11 Petitioner has failed
bookkeeping records.5crallawlibrary
to discharge this burden.
Besides, a client’s engagement of an ethical hacker requires an agreement between
Section 4(a)(6) of the Cybercrime Law
 87

x x x x
Section 4(a)(6) provides:chanRoblesVirtualawlibrary
b) Computer-related Offenses:chanRoblesVirtualawlibrary
Section 4. Cybercrime Offenses. - The following acts constitute the offense of
cybercrime punishable under this Act:chanRoblesVirtualawlibrary x x x x

(a) Offenses against the confidentiality, integrity and availability of computer data and (3) Computer-related Identity Theft. - The intentional acquisition, use, misuse, transfer,
systems:chanRoblesVirtualawlibrary possession, alteration, or deletion of identifying information belonging to another,
whether natural or juridical, without right: Provided: that if no damage has yet been
x x x x caused, the penalty imposable shall be one (1) degree lower.

(6) Cyber-squatting. - The acquisition of domain name over the internet in bad faith to Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process
profit, mislead, destroy the reputation, and deprive others from registering the same, if and to privacy and correspondence, and transgresses the freedom of the press.
such a domain name is:chanRoblesVirtualawlibrary
The right to privacy, or the right to be let alone, was institutionalized in the 1987
(i) Similar, identical, or confusingly similar to an existing trademark registered with the Constitution as a facet of the right protected by the guarantee against unreasonable
appropriate government agency at the time of the domain name registration; searches and seizures.13 But the Court acknowledged its existence as early as 1968
in Morfe v. Mutuc,14 it ruled that the right to privacy exists independently of its
(ii) Identical or in any way similar with the name of a person other than the registrant, identification with liberty; it is in itself fully deserving of constitutional protection.
in case of a personal name; and
Relevant to any discussion of the right to privacy is the concept known as the “Zones
(iii) Acquired without right or with intellectual property interests in it. of Privacy.” The Court explained in “In the Matter of the Petition for Issuance of Writ of
Habeas Corpus of Sabio v. Senator Gordon”15 the relevance of these zones to the right
Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection to privacy:chanRoblesVirtualawlibrary
clause12 in that, not being narrowly tailored, it will cause a user using his real name to
suffer the same fate as those who use aliases or take the name of another in satire, Zones of privacy are recognized and protected in our laws. Within these zones, any
parody, or any other literary device. For example, supposing there exists a well known form of intrusion is impermissible unless excused by law and in accordance with
billionaire-philanthropist named “Julio Gandolfo,” the law would punish for cyber- customary legal process. The meticulous regard we accord to these zones arises not
squatting both the person who registers such name because he claims it to be his only from our conviction that the right to privacy is a “constitutional right” and “the right
pseudo-name and another who registers the name because it happens to be his real most valued by civilized men,” but also from our adherence to the Universal Declaration
name. Petitioners claim that, considering the substantial distinction between the two, of Human Rights which mandates that, “no one shall be subjected to arbitrary
the law should recognize the difference. interference with his privacy” and “everyone has the right to the protection of the law
against such interference or attacks.”
But there is no real difference whether he uses “Julio Gandolfo” which happens to be
his real name or use it as a pseudo-name for it is the evil purpose for which he uses Two constitutional guarantees create these zones of privacy: (a) the right against
the name that the law condemns. The law is reasonable in penalizing him for acquiring unreasonable searches16 and seizures, which is the basis of the right to be let alone,
the domain name in bad faith to profit, mislead, destroy reputation, or deprive others and (b) the right to privacy of communication and correspondence.17crallawlibrary
who are not ill-motivated of the rightful opportunity of registering the same. The
challenge to the constitutionality of Section 4(a)(6) on ground of denial of equal In assessing the challenge that the State has impermissibly intruded into these zones
protection is baseless. of privacy, a court must determine whether a person has exhibited a reasonable
expectation of privacy and, if so, whether that expectation has been violated by
Section 4(b)(3) of the Cybercrime Law unreasonable government intrusion.18crallawlibrary

Section 4(b)(3) provides:chanRoblesVirtualawlibrary The usual identifying information regarding a person includes his name, his citizenship,
his residence address, his contact number, his place and date of birth, the name of his
Section 4. Cybercrime Offenses. - The following acts constitute the offense of spouse if any, his occupation, and similar data.19 The law punishes those who acquire
cybercrime punishable under this Act:chanRoblesVirtualawlibrary or use such identifying information without right, implicitly to cause damage. Petitioners
simply fail to show how government effort to curb computer-related identity theft violates
 88

the right to privacy and correspondence as well as the right to due process of law. But the deliberations of the Bicameral Committee of Congress on this section of the
Cybercrime Prevention Act give a proper perspective on the issue. These deliberations
Also, the charge of invalidity of this section based on the overbreadth doctrine will not show a lack of intent to penalize a “private showing x x x between and among two
hold water since the specific conducts proscribed do not intrude into guaranteed private persons x x x although that may be a form of obscenity to some.” 23 The
freedoms like speech. Clearly, what this section regulates are specific actions: the understanding of those who drew up the cybercrime law is that the element of
acquisition, use, misuse or deletion of personal identifying data of another. There is no “engaging in a business” is necessary to constitute the illegal cybersex. 24 The Act
fundamental right to acquire another’s personal data. actually seeks to punish cyber prostitution, white slave trade, and pornography for favor
and consideration. This includes interactive prostitution and pornography, i.e., by
Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that webcam.25crallawlibrary
journalists would be hindered from accessing the unrestricted user account of a person
in the news to secure information about him that could be published. But this is not the The subject of Section 4(c)(1)—lascivious exhibition of sexual organs or sexual
essence of identity theft that the law seeks to prohibit and punish. Evidently, the theft activity—is not novel. Article 201 of the RPC punishes “obscene publications and
of identity information must be intended for an illegitimate purpose. Moreover, acquiring exhibitions and indecent shows.” The Anti-Trafficking in Persons Act of 2003 penalizes
and disseminating information made public by the user himself cannot be regarded as those who “maintain or hire a person to engage in prostitution or pornography.” 26 The
a form of theft. law defines prostitution as any act, transaction, scheme, or design involving the use of
a person by another, for sexual intercourse or lascivious conduct in exchange for
The Court has defined intent to gain as an internal act which can be established through money, profit, or any other consideration. 27crallawlibrary
the overt acts of the offender, and it may be presumed from the furtive taking of useful
property pertaining to another, unless special circumstances reveal a different intent on The case of Nogales v. People28 shows the extent to which the State can regulate
the part of the perpetrator.20 As such, the press, whether in quest of news reporting or materials that serve no other purpose than satisfy the market for violence, lust, or
social investigation, has nothing to fear since a special circumstance is present to pornography.29 The Court weighed the property rights of individuals against the public
negate intent to gain which is required by this Section. welfare. Private property, if containing pornographic materials, may be forfeited and
destroyed. Likewise, engaging in sexual acts privately through internet connection,
Section 4(c)(1) of the Cybercrime Law perceived by some as a right, has to be balanced with the mandate of the State to
eradicate white slavery and the exploitation of women.
Section 4(c)(1) provides:chanRoblesVirtualawlibrary
In any event, consenting adults are protected by the wealth of jurisprudence delineating
Sec. 4. Cybercrime Offenses.- The following acts constitute the offense of cybercrime the bounds of obscenity.30 The Court will not declare Section 4(c)(1) unconstitutional
punishable under this Act:chanRoblesVirtualawlibrary where it stands a construction that makes it apply only to persons engaged in the
business of maintaining, controlling, or operating, directly or indirectly, the lascivious
x x x x exhibition of sexual organs or sexual activity with the aid of a computer system as
Congress has intended.
(c) Content-related Offenses:chanRoblesVirtualawlibrary
Section 4(c)(2) of the Cybercrime Law
(1) Cybersex.- The willful engagement, maintenance, control, or operation, directly or
indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of Section 4(c)(2) provides:chanRoblesVirtualawlibrary
a computer system, for favor or consideration.
Sec. 4. Cybercrime Offenses. - The following acts constitute the offense of cybercrime
Petitioners claim that the above violates the freedom of expression clause of the punishable under this Act:chanRoblesVirtualawlibrary
Constitution.21 They express fear that private communications of sexual character
between husband and wife or consenting adults, which are not regarded as crimes x x x x
under the penal code, would now be regarded as crimes when done “for favor” in
cyberspace. In common usage, the term “favor” includes “gracious kindness,” “a special (c) Content-related Offenses:chanRoblesVirtualawlibrary
privilege or right granted or conceded,” or “a token of love (as a ribbon) usually worn
conspicuously.”22 This meaning given to the term “favor” embraces socially tolerated xxxx
trysts. The law as written would invite law enforcement agencies into the bedrooms of
married couples or consenting individuals.
 89

(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by
Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed (i) There is prior affirmative consent from the recipient; or
through a computer system: Provided, That the penalty to be imposed shall be (1)
one degree higher than that provided for in Republic Act No. 9775. (ii) The primary intent of the communication is for service and/or administrative
announcements from the sender to its existing users, subscribers or customers; or
It seems that the above merely expands the scope of the Anti-Child Pornography Act
of 200931 (ACPA) to cover identical activities in cyberspace. In theory, nothing prevents (iii) The following conditions are present:chanRoblesVirtualawlibrary
the government from invoking the ACPA when prosecuting persons who commit child
pornography using a computer system. Actually, ACPA’s definition of child pornography (aa) The commercial electronic communication contains a simple, valid, and reliable
already embraces the use of “electronic, mechanical, digital, optical, magnetic or any way for the recipient to reject receipt of further commercial electronic messages (opt-
other means.” Notably, no one has questioned this ACPA provision. out) from the same source;

Of course, the law makes the penalty higher by one degree when the crime is (bb) The commercial electronic communication does not purposely disguise the
committed in cyberspace. But no one can complain since the intensity or duration of source of the electronic message; and
penalty is a legislative prerogative and there is rational basis for such higher
penalty.32 The potential for uncontrolled proliferation of a particular piece of child (cc) The commercial electronic communication does not purposely include misleading
pornography when uploaded in the cyberspace is incalculable. information in any part of the message in order to induce the recipients to read the
message.
Petitioners point out that the provision of ACPA that makes it unlawful for any person
to “produce, direct, manufacture or create any form of child pornography”33 clearly The above penalizes the transmission of unsolicited commercial communications, also
relates to the prosecution of persons who aid and abet the core offenses that ACPA known as “spam.” The term “spam” surfaced in early internet chat rooms and interactive
seeks to punish.34 Petitioners are wary that a person who merely doodles on paper and fantasy games. One who repeats the same sentence or comment was said to be
imagines a sexual abuse of a 16-year-old is not criminally liable for producing child making a “spam.” The term referred to a Monty Python’s Flying Circus scene in which
pornography but one who formulates the idea on his laptop would be. Further, if the actors would keep saying “Spam, Spam, Spam, and Spam” when reading options from
author bounces off his ideas on Twitter, anyone who replies to the tweet could be a menu.35crallawlibrary
considered aiding and abetting a cybercrime.
The Government, represented by the Solicitor General, points out that unsolicited
The question of aiding and abetting the offense by simply commenting on it will be commercial communications or spams are a nuisance that wastes the storage and
discussed elsewhere below. For now the Court must hold that the constitutionality of network capacities of internet service providers, reduces the efficiency of commerce
Section 4(c)(2) is not successfully challenged. and technology, and interferes with the owner’s peaceful enjoyment of his property.
Transmitting spams amounts to trespass to one’s privacy since the person sending out
Section 4(c)(3) of the Cybercrime Law spams enters the recipient’s domain without prior permission. The OSG contends that
commercial speech enjoys less protection in law.
Section 4(c)(3) provides:chanRoblesVirtualawlibrary
But, firstly, the government presents no basis for holding that unsolicited electronic ads
Sec. 4. Cybercrime Offenses. - The following acts constitute the offense of cybercrime reduce the “efficiency of computers.” Secondly, people, before the arrival of the age of
punishable under this Act:chanRoblesVirtualawlibrary computers, have already been receiving such unsolicited ads by mail. These have
never been outlawed as nuisance since people might have interest in such ads. What
x x x x matters is that the recipient has the option of not opening or reading these mail ads.
That is true with spams. Their recipients always have the option to delete or not to read
(c) Content-related Offenses:chanRoblesVirtualawlibrary them.

x x x x To prohibit the transmission of unsolicited ads would deny a person the right to read
his emails, even unsolicited commercial ads addressed to him. Commercial speech is
(3) Unsolicited Commercial Communications. - The transmission of commercial a separate category of speech which is not accorded the same level of protection as
electronic communication with the use of computer system which seeks to advertise, that given to other constitutionally guaranteed forms of expression but is nonetheless
sell, or offer for sale products and services are prohibited entitled to protection.36 The State cannot rob him of this right without violating the
unless:chanRoblesVirtualawlibrary
 90

constitutionally guaranteed freedom of expression. Unsolicited advertisements are (4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the
legitimate forms of expression. Revised Penal Code, as amended, committed through a computer system or any other
similar means which may be devised in the future.
Articles 353, 354, and 355 of the Penal Code
Section 4(c)(4) of the Cyber Crime Law Petitioners lament that libel provisions of the penal code37 and, in effect, the libel
provisions of the cybercrime law carry with them the requirement of “presumed malice”
Petitioners dispute the constitutionality of both the penal code provisions on libel as even when the latest jurisprudence already replaces it with the higher standard of
well as Section 4(c)(4) of the Cybercrime Prevention Act on cyberlibel. “actual malice” as a basis for conviction.38 Petitioners argue that inferring “presumed
malice” from the accused’s defamatory statement by virtue of Article 354 of the penal
The RPC provisions on libel read:chanRoblesVirtualawlibrary code infringes on his constitutionally guaranteed freedom of expression.

Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of Petitioners would go further. They contend that the laws on libel should be stricken
a vice or defect, real or imaginary, or any act, omission, condition, status, or down as unconstitutional for otherwise good jurisprudence requiring “actual malice”
circumstance tending to cause the dishonor, discredit, or contempt of a natural or could easily be overturned as the Court has done in Fermin v. People39 even where the
juridical person, or to blacken the memory of one who is dead. offended parties happened to be public figures.

Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be The elements of libel are: (a) the allegation of a discreditable act or condition
malicious, even if it be true, if no good intention and justifiable motive for making it is concerning another; (b) publication of the charge; (c) identity of the person defamed;
shown, except in the following cases:chanRoblesVirtualawlibrary and (d) existence of malice.40crallawlibrary

1. A private communication made by any person to another in the performance of any There is “actual malice” or malice in fact41 when the offender makes the defamatory
legal, moral or social duty; and statement with the knowledge that it is false or with reckless disregard of whether it was
false or not.42 The reckless disregard standard used here requires a high degree of
2. A fair and true report, made in good faith, without any comments or remarks, of any awareness of probable falsity. There must be sufficient evidence to permit the
judicial, legislative or other official proceedings which are not of confidential nature, or conclusion that the accused in fact entertained serious doubts as to the truth of the
of any statement, report or speech delivered in said proceedings, or of any other act statement he published. Gross or even extreme negligence is not sufficient to establish
performed by public officers in the exercise of their functions. actual malice.43crallawlibrary

Art. 355. Libel means by writings or similar means. — A libel committed by means of The prosecution bears the burden of proving the presence of actual malice in instances
writing, printing, lithography, engraving, radio, phonograph, painting, theatrical where such element is required to establish guilt. The defense of absence of actual
exhibition, cinematographic exhibition, or any similar means, shall be punished malice, even when the statement turns out to be false, is available where the offended
by prision correccional in its minimum and medium periods or a fine ranging from 200 party is a public official or a public figure, as in the cases
to 6,000 pesos, or both, in addition to the civil action which may be brought by the of Vasquez (a barangay official) and Borjal (the Executive Director, First National
offended party. Conference on Land Transportation). Since the penal code and implicitly, the
cybercrime law, mainly target libel against private persons, the Court recognizes that
The libel provision of the cybercrime law, on the other hand, merely incorporates to these laws imply a stricter standard of “malice” to convict the author of a defamatory
form part of it the provisions of the RPC on libel. Thus Section 4(c)(4) statement where the offended party is a public figure. Society’s interest and the
reads:chanRoblesVirtualawlibrary maintenance of good government demand a full discussion of public
affairs.44crallawlibrary
Sec. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime
punishable under this Act:chanRoblesVirtualawlibrary
Parenthetically, the Court cannot accept the proposition that its ruling
in Fermin disregarded the higher standard of actual malice or malice in fact when it
x x x x
found Cristinelli Fermin guilty of committing libel against complainants who were public
figures. Actually, the Court found the presence of malice in fact in that case.
(c) Content-related Offenses:chanRoblesVirtualawlibrary
Thus:chanRoblesVirtualawlibrary
x x x x It can be gleaned from her testimony that petitioner had the motive to make defamatory
imputations against complainants. Thus, petitioner cannot, by simply making a general
 91

denial, convince us that there was no malice on her part. Verily, not only was there speech and that the government has an obligation to protect private individuals from
malice in law, the article being malicious in itself, but there was also malice in fact, defamation. Indeed, cyberlibel is actually not a new crime since Article 353, in relation
as there was motive to talk ill against complainants during the electoral campaign. to Article 355 of the penal code, already punishes it. In effect, Section 4(c)(4) above
(Emphasis ours) merely affirms that online defamation constitutes “similar means” for committing libel.

Indeed, the Court took into account the relatively wide leeway given to utterances But the Court’s acquiescence goes only insofar as the cybercrime law penalizes the
against public figures in the above case, cinema and television personalities, when it author of the libelous statement or article. Cyberlibel brings with it certain intricacies,
modified the penalty of imprisonment to just a fine of P6,000.00. unheard of when the penal code provisions on libel were enacted. The culture
associated with internet media is distinct from that of print.
But, where the offended party is a private individual, the prosecution need not prove
the presence of malice. The law explicitly presumes its existence (malice in law) from The internet is characterized as encouraging a freewheeling, anything-goes writing
the defamatory character of the assailed statement. 45 For his defense, the accused style.50 In a sense, they are a world apart in terms of quickness of the reader’s reaction
must show that he has a justifiable reason for the defamatory statement even if it was to defamatory statements posted in cyberspace, facilitated by one-click reply options
in fact true.46crallawlibrary offered by the networking site as well as by the speed with which such reactions are
disseminated down the line to other internet users. Whether these reactions to
Petitioners peddle the view that both the penal code and the Cybercrime Prevention defamatory statement posted on the internet constitute aiding and abetting libel, acts
Act violate the country’s obligations under the International Covenant of Civil and that Section 5 of the cybercrime law punishes, is another matter that the Court will deal
Political Rights (ICCPR). They point out that in Adonis v. Republic of the with next in relation to Section 5 of the law.
Philippines,47 the United Nations Human Rights Committee (UNHRC) cited its General
Comment 34 to the effect that penal defamation laws should include the defense of Section 5 of the Cybercrime Law
truth.
Section 5 provides:chanRoblesVirtualawlibrary
But General Comment 34 does not say that the truth of the defamatory statement
should constitute an all-encompassing defense. As it happens, Article 361 recognizes Sec. 5. Other Offenses. — The following acts shall also constitute an
truth as a defense but under the condition that the accused has been prompted in offense:chanRoblesVirtualawlibrary
making the statement by good motives and for justifiable ends.
Thus:chanRoblesVirtualawlibrary (a) Aiding or Abetting in the Commission of Cybercrime. - Any person who willfully abets
or aids in the commission of any of the offenses enumerated in this Act shall be held
Art. 361. Proof of the truth. — In every criminal prosecution for libel, the truth may be liable.
given in evidence to the court and if it appears that the matter charged as libelous is
true, and, moreover, that it was published with good motives and for justifiable ends, (b) Attempt in the Commission of Cybercrime. — Any person who willfully attempts to
the defendants shall be acquitted. commit any of the offenses enumerated in this Act shall be held liable.

Proof of the truth of an imputation of an act or omission not constituting a crime shall Petitioners assail the constitutionality of Section 5 that renders criminally liable any
not be admitted, unless the imputation shall have been made against Government person who willfully abets or aids in the commission or attempts to commit any of the
employees with respect to facts related to the discharge of their official duties. offenses enumerated as cybercrimes. It suffers from overbreadth, creating a chilling
and deterrent effect on protected expression.
In such cases if the defendant proves the truth of the imputation made by him, he shall
be acquitted. The Solicitor General contends, however, that the current body of jurisprudence and
laws on aiding and abetting sufficiently protects the freedom of expression of “netizens,”
Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to the multitude that avail themselves of the services of the internet. He points out that
decriminalize libel. It simply suggested that defamation laws be crafted with care to existing laws and jurisprudence sufficiently delineate the meaning of “aiding or abetting”
ensure that they do not stifle freedom of expression. 48 Indeed, the ICCPR states that a crime as to protect the innocent. The Solicitor General argues that plain, ordinary,
although everyone should enjoy freedom of expression, its exercise carries with it and common usage is at times sufficient to guide law enforcement agencies in
special duties and responsibilities. Free speech is not absolute. It is subject to certain enforcing the law.51 The legislature is not required to define every single word contained
restrictions, as may be necessary and as may be provided by law. 49crallawlibrary in the laws they craft.

The Court agrees with the Solicitor General that libel is not a constitutionally protected Aiding or abetting has of course well-defined meaning and application in existing laws.

When a person aids or abets another in destroying a forest,52 smuggling merchandise
into the country,53 or interfering in the peaceful picketing of laborers, 54 his action is
essentially physical and so is susceptible to easy assessment as criminal in character.
These forms of aiding or abetting lend themselves to the tests of common sense and
human experience.
But, when it comes to certain cybercrimes, the waters are muddier and the line of sight
is somewhat blurred. The idea of “aiding or abetting” wrongdoings online threatens the
heretofore popular and unchallenged dogmas of cyberspace use.
According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos have
accessed the internet within a year, translating to about 31 million users.55 Based on a
recent survey, the Philippines ranks 6th in the top 10 most engaged countries for social
networking.56 Social networking sites build social relations among people who, for
example, share interests, activities, backgrounds, or real-life
connections.57crallawlibrary
Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2
billion people with shared interests use Facebook to get in touch. 58 Users register at
this site, create a personal profile or an open book of who they are, add other users as
friends, and exchange messages, including automatic notifications when they update
their profile.59 A user can post a statement, a photo, or a video on Facebook, which can
be made visible to anyone, depending on the user’s privacy settings.
If the post is made available to the public, meaning to everyone and not only to his
friends, anyone on Facebook can react to the posting, clicking any of several buttons
of preferences on the program’s screen such as “Like,” “Comment,” or “Share.” “Like”
signifies that the reader likes the posting while “Comment” enables him to post online
his feelings or views about the same, such as “This is great!” When a Facebook user
“Shares” a posting, the original “posting” will appear on his own Facebook profile,
consequently making it visible to his down-line Facebook Friends.
Twitter, on the other hand, is an internet social networking and microblogging service
that enables its users to send and read short text-based messages of up to 140
characters. These are known as “Tweets.” Microblogging is the practice of posting small
pieces of digital content—which could be in the form of text, pictures, links, short videos,
or other media—on the internet. Instead of friends, a Twitter user has “Followers,” those
who subscribe to this particular user’s posts, enabling them to read the same, and
“Following,” those whom this particular user is subscribed to, enabling him to read their
posts. Like Facebook, a Twitter user can make his tweets available only to his
Followers, or to the general public. If a post is available to the public, any Twitter user
can “Retweet” a given posting. Retweeting is just reposting or republishing another
person’s tweet without the need of copying and pasting it.
In the cyberworld, there are many actors: a) the blogger who originates the assailed
statement; b) the blog service provider like Yahoo; c) the internet service provider like
PLDT, Smart, Globe, or Sun; d) the internet café that may have provided the computer
92
used for posting the blog; e) the person who makes a favorable comment on the blog;
and f) the person who posts a link to the blog site.60 Now, suppose Maria (a blogger)
maintains a blog on WordPress.com (blog service provider). She needs the internet to
access her blog so she subscribes to Sun Broadband (Internet Service Provider).
One day, Maria posts on her internet account the statement that a certain married public
official has an illicit affair with a movie star. Linda, one of Maria’s friends who sees this
post, comments online, “Yes, this is so true! They are so immoral.” Maria’s original post
is then multiplied by her friends and the latter’s friends, and down the line to friends of
friends almost ad infinitum. Nena, who is a stranger to both Maria and Linda, comes
across this blog, finds it interesting and so shares the link to this apparently defamatory
blog on her Twitter account. Nena’s “Followers” then “Retweet” the link to that blog site.
Pamela, a Twitter user, stumbles upon a random person’s “Retweet” of Nena’s original
tweet and posts this on her Facebook account. Immediately, Pamela’s Facebook
Friends start Liking and making Comments on the assailed posting. A lot of them even
press the Share button, resulting in the further spread of the original posting into tens,
hundreds, thousands, and greater postings.
The question is: are online postings such as “Liking” an openly defamatory statement,
“Commenting” on it, or “Sharing” it with others, to be regarded as “aiding or abetting?”
In libel in the physical world, if Nestor places on the office bulletin board a small poster
that says, “Armand is a thief!,” he could certainly be charged with libel. If Roger, seeing
the poster, writes on it, “I like this!,” that could not be libel since he did not author the
poster. If Arthur, passing by and noticing the poster, writes on it, “Correct!,” would that
be libel? No, for he merely expresses agreement with the statement on the poster. He
still is not its author. Besides, it is not clear if aiding or abetting libel in the physical world
is a crime.
But suppose Nestor posts the blog, “Armand is a thief!” on a social networking site.
Would a reader and his Friends or Followers, availing themselves of any of the “Like,”
“Comment,” and “Share” reactions, be guilty of aiding or abetting libel? And, in the
complex world of cyberspace expressions of thoughts, when will one be liable for aiding
or abetting cybercrimes? Where is the venue of the crime?
Except for the original author of the assailed statement, the rest (those who pressed
Like, Comment and Share) are essentially knee-jerk sentiments of readers who may
think little or haphazardly of their response to the original posting. Will they be liable for
aiding or abetting? And, considering the inherent impossibility of joining hundreds or
thousands of responding “Friends” or “Followers” in the criminal charge to be filed in
court, who will make a choice as to who should go to jail for the outbreak of the
challenged posting?
The old parameters for enforcing the traditional form of libel would be a square peg in
a round hole when applied to cyberspace libel. Unless the legislature crafts a cyber libel
law that takes into account its unique circumstances and culture, such law will tend to
create a chilling effect on the millions that use this new medium of communication in

violation of their constitutionally-guaranteed right to freedom of expression.
The United States Supreme Court faced the same issue in Reno v. American Civil
Liberties Union,61 a case involving the constitutionality of the Communications Decency
Act of 1996. The law prohibited (1) the knowing transmission, by means of a
telecommunications device, of “obscene or indecent” communications to any recipient
under 18 years of age; and (2) the knowing use of an interactive computer service to
send to a specific person or persons under 18 years of age or to display in a manner
available to a person under 18 years of age communications that, in context, depict or
describe, in terms “patently offensive” as measured by contemporary community
standards, sexual or excretory activities or organs.
Those who challenged the Act claim that the law violated the First Amendment’s
guarantee of freedom of speech for being overbroad. The U.S. Supreme Court agreed
and ruled:chanRoblesVirtualawlibrary
The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. §223,
is a matter of special concern for two reasons. First, the CDA is a content-based
regulation of speech. The vagueness of such a regulation raises special U.S. Const.
amend. I concerns because of its obvious chilling effect on free speech. Second,
the CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal
conviction, the CDA threatens violators with penalties including up to two years in prison
for each act of violation. The severity of criminal sanctions may well cause
speakers to remain silent rather than communicate even arguably unlawful
words, ideas, and images. As a practical matter, this increased deterrent effect,
coupled with the risk of discriminatory enforcement of vague regulations, poses greater
U.S. Const. amend. I concerns than those implicated by certain civil regulations.
x x x x
The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. § 223, presents a
great threat of censoring speech that, in fact, falls outside the statute’s scope.
Given the vague contours of the coverage of the statute, it unquestionably
silences some speakers whose messages would be entitled to constitutional
protection. That danger provides further reason for insisting that the statute not be
overly broad. The CDA’s burden on protected speech cannot be justified if it could
be avoided by a more carefully drafted statute. (Emphasis ours)
Libel in the cyberspace can of course stain a person’s image with just one click of the
mouse. Scurrilous statements can spread and travel fast across the globe like bad
news. Moreover, cyberlibel often goes hand in hand with cyberbullying that oppresses
the victim, his relatives, and friends, evoking from mild to disastrous reactions. Still, a
governmental purpose, which seeks to regulate the use of this cyberspace
communication technology to protect a person’s reputation and peace of mind, cannot
adopt means that will unnecessarily and broadly sweep, invading the area of protected
freedoms.62crallawlibrary
If such means are adopted, self-inhibition borne of fear of what sinister predicaments
93
await internet users will suppress otherwise robust discussion of public issues.
Democracy will be threatened and with it, all liberties. Penal laws should provide
reasonably clear guidelines for law enforcement officials and triers of facts to prevent
arbitrary and discriminatory enforcement.63 The terms “aiding or abetting” constitute
broad sweep that generates chilling effect on those who express themselves through
cyberspace posts, comments, and other messages. 64 Hence, Section 5 of the
cybercrime law that punishes “aiding or abetting” libel on the cyberspace is a nullity.
When a penal statute encroaches upon the freedom of speech, a facial challenge
grounded on the void-for-vagueness doctrine is acceptable. The inapplicability of the
doctrine must be carefully delineated. As Justice Antonio T. Carpio explained in his
dissent in Romualdez v. Commission on Elections,65 “we must view these statements
of the Court on the inapplicability of the overbreadth and vagueness doctrines to penal
statutes as appropriate only insofar as these doctrines are used to mount ‘facial’
challenges to penal statutes not involving free speech.”
In an “as applied” challenge, the petitioner who claims a violation of his constitutional
right can raise any constitutional ground - absence of due process, lack of fair notice,
lack of ascertainable standards, overbreadth, or vagueness. Here, one can challenge
the constitutionality of a statute only if he asserts a violation of his own rights. It prohibits
one from assailing the constitutionality of the statute based solely on the violation of the
rights of third persons not before the court. This rule is also known as the prohibition
against third-party standing.66crallawlibrary
But this rule admits of exceptions. A petitioner may for instance mount a “facial”
challenge to the constitutionality of a statute even if he claims no violation of his own
rights under the assailed statute where it involves free speech on grounds of
overbreadth or vagueness of the statute. The rationale for this exception is to counter
the “chilling effect” on protected speech that comes from statutes violating free speech.
A person who does not know whether his speech constitutes a crime under an
overbroad or vague law may simply restrain himself from speaking in order to avoid
being charged of a crime. The overbroad or vague law thus chills him into
silence.67crallawlibrary
As already stated, the cyberspace is an incomparable, pervasive medium of
communication. It is inevitable that any government threat of punishment regarding
certain uses of the medium creates a chilling effect on the constitutionally-protected
freedom of expression of the great masses that use it. In this case, the particularly
complex web of interaction on social media websites would give law enforcers such
latitude that they could arbitrarily or selectively enforce the law.
Who is to decide when to prosecute persons who boost the visibility of a posting on the
internet by liking it? Netizens are not given “fair notice” or warning as to what is criminal
conduct and what is lawful conduct. When a case is filed, how will the court ascertain
whether or not one netizen’s comment aided and abetted a cybercrime while another
comment did not?

Of course, if the “Comment” does not merely react to the original posting but creates
an altogether new defamatory story against Armand like “He beats his wife and
children,” then that should be considered an original posting published on the internet.
Both the penal code and the cybercrime law clearly punish authors of defamatory
publications. Make no mistake, libel destroys reputations that society values. Allowed
to cascade in the internet, it will destroy relationships and, under certain circumstances,
will generate enmity and tension between social or economic groups, races, or
religions, exacerbating existing tension in their relationships.
In regard to the crime that targets child pornography, when “Google procures, stores,
and indexes child pornography and facilitates the completion of transactions involving
the dissemination of child pornography,” does this make Google and its users aiders
and abettors in the commission of child pornography crimes? 68 Byars highlights a
feature in the American law on child pornography that the Cybercrimes law lacks—the
exemption of a provider or notably a plain user of interactive computer service from civil
liability for child pornography as follows:chanRoblesVirtualawlibrary
No provider or user of an interactive computer service shall be treated as the publisher
or speaker of any information provided by another information content provider and
cannot be held civilly liable for any action voluntarily taken in good faith to restrict
access to or availability of material that the provider or user considers to be
obscene...whether or not such material is constitutionally protected. 69crallawlibrary
When a person replies to a Tweet containing child pornography, he effectively
republishes it whether wittingly or unwittingly. Does this make him a willing accomplice
to the distribution of child pornography? When a user downloads the Facebook mobile
application, the user may give consent to Facebook to access his contact details. In
this way, certain information is forwarded to third parties and unsolicited commercial
communication could be disseminated on the basis of this information.70 As the source
of this information, is the user aiding the distribution of this communication? The
legislature needs to address this clearly to relieve users of annoying fear of possible
criminal prosecution.
Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises
apprehension on the part of internet users because of its obvious chilling effect on the
freedom of expression, especially since the crime of aiding or abetting ensnares all the
actors in the cyberspace front in a fuzzy way. What is more, as the petitioners point out,
formal crimes such as libel are not punishable unless consummated. 71 In the absence
of legislation tracing the interaction of netizens and their level of responsibility such as
in other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section 4(c)(3) on
Unsolicited Commercial Communications, and Section 4(c)(2) on Child Pornography,
cannot stand scrutiny.
But the crime of aiding or abetting the commission of cybercrimes under Section 5
should be permitted to apply to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on
Illegal Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System
Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting,
Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related
94
Fraud, Section 4(b)(3) on Computer-related Identity Theft, and Section 4(c)(1) on
Cybersex. None of these offenses borders on the exercise of the freedom of
expression.
The crime of willfully attempting to commit any of these offenses is for the same reason
not objectionable. A hacker may for instance have done all that is necessary to illegally
access another party’s computer system but the security employed by the system’s
lawful owner could frustrate his effort. Another hacker may have gained access to
usernames and passwords of others but fail to use these because the system
supervisor is alerted.72 If Section 5 that punishes any person who willfully attempts to
commit this specific offense is not upheld, the owner of the username and password
could not file a complaint against him for attempted hacking. But this is not right. The
hacker should not be freed from liability simply because of the vigilance of a lawful
owner or his supervisor.
Petitioners of course claim that Section 5 lacks positive limits and could cover the
innocent.73 While this may be true with respect to cybercrimes that tend to sneak past
the area of free expression, any attempt to commit the other acts specified in Section
4(a)(1), Section 4(a)(2), Section 4(a)(3), Section 4(a)(4), Section 4(a)(5), Section
4(a)(6), Section 4(b)(1), Section 4(b)(2), Section 4(b)(3), and Section 4(c)(1) as well as
the actors aiding and abetting the commission of such acts can be identified with some
reasonable certainty through adroit tracking of their works. Absent concrete proof of the
same, the innocent will of course be spared.
Section 6 of the Cybercrime Law
Section 6 provides:chanRoblesVirtualawlibrary
Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and
special laws, if committed by, through and with the use of information and
communications technologies shall be covered by the relevant provisions of this
Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that
provided for by the Revised Penal Code, as amended, and special laws, as the case
may be.
Section 6 merely makes commission of existing crimes through the internet a qualifying
circumstance. As the Solicitor General points out, there exists a substantial distinction
between crimes committed through the use of information and communications
technology and similar crimes committed using other means. In using the technology
in question, the offender often evades identification and is able to reach far more victims
or cause greater harm. The distinction, therefore, creates a basis for higher penalties
for cybercrimes.
Section 7 of the Cybercrime Law
Section 7 provides:chanRoblesVirtualawlibrary

Sec. 7. Liability under Other Laws. — A prosecution under this Act shall be without
prejudice to any liability for violation of any provision of the Revised Penal Code, as
amended, or special laws.
The Solicitor General points out that Section 7 merely expresses the settled doctrine
that a single set of acts may be prosecuted and penalized simultaneously under two
laws, a special law and the Revised Penal Code. When two different laws define two
crimes, prior jeopardy as to one does not bar prosecution of the other although both
offenses arise from the same fact, if each crime involves some important act which is
not an essential element of the other.74 With the exception of the crimes of online libel
and online child pornography, the Court would rather leave the determination of the
correct application of Section 7 to actual cases.
Online libel is different. There should be no question that if the published material on
print, said to be libelous, is again posted online or vice versa, that identical material
cannot be the subject of two separate libels. The two offenses, one a violation of Article
353 of the Revised Penal Code and the other a violation of Section 4(c)(4) of R.A.
10175 involve essentially the same elements and are in fact one and the same offense.
Indeed, the OSG itself claims that online libel under Section 4(c)(4) is not a new crime
but is one already punished under Article 353. Section 4(c)(4) merely establishes the
computer system as another means of publication.75 Charging the offender under both
laws would be a blatant violation of the proscription against double
jeopardy.76crallawlibrary
The same is true with child pornography committed online. Section 4(c)(2) merely
expands the ACPA’s scope so as to include identical activities in cyberspace. As
previously discussed, ACPA’s definition of child pornography in fact already covers the
use of “electronic, mechanical, digital, optical, magnetic or any other means.” Thus,
charging the offender under both Section 4(c)(2) and ACPA would likewise be
tantamount to a violation of the constitutional prohibition against double jeopardy.
Section 8 of the Cybercrime Law
Section 8 provides:chanRoblesVirtualawlibrary
Sec. 8. Penalties. — Any person found guilty of any of the punishable acts enumerated
in Sections 4(a) and 4(b) of this Act shall be punished with imprisonment of prision
mayor or a fine of at least Two hundred thousand pesos (PhP200,000.00) up to a
maximum amount commensurate to the damage incurred or both.
Any person found guilty of the punishable act under Section 4(a)(5) shall be punished
with imprisonment of prision mayor or a fine of not more than Five hundred thousand
pesos (PhP500,000.00) or both.
If punishable acts in Section 4(a) are committed against critical infrastructure, the
penalty of reclusion temporal or a fine of at least Five hundred thousand pesos
(PhP500,000.00) up to maximum amount commensurate to the damage incurred or
both, shall be imposed.
95
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of
this Act shall be punished with imprisonment of prision mayor or a fine of at least Two
hundred thousand pesos (PhP200,000.00) but not exceeding One million pesos
(PhP1,000,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of
this Act shall be punished with the penalties as enumerated in Republic Act No. 9775
or the “Anti-Child Pornography Act of 2009:” Provided, That the penalty to be imposed
shall be one (1) degree higher than that provided for in Republic Act No. 9775, if
committed through a computer system.
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3)
shall be punished with imprisonment of arresto mayor or a fine of at least Fifty thousand
pesos (PhP50,000.00) but not exceeding Two hundred fifty thousand pesos
(PhP250,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section 5 shall be
punished with imprisonment one (1) degree lower than that of the prescribed penalty
for the offense or a fine of at least One hundred thousand pesos (PhP100,000.00) but
not exceeding Five hundred thousand pesos (PhP500,000.00) or both.
Section 8 provides for the penalties for the following crimes: Sections 4(a) on Offenses
Against the Confidentiality, Integrity and Availability of Computer Data and Systems;
4(b) on Computer-related Offenses; 4(a)(5) on Misuse of Devices; when the crime
punishable under 4(a) is committed against critical infrastructure; 4(c)(1) on Cybersex;
4(c)(2) on Child Pornography; 4(c)(3) on Unsolicited Commercial Communications; and
Section 5 on Aiding or Abetting, and Attempt in the Commission of Cybercrime.
The matter of fixing penalties for the commission of crimes is as a rule a legislative
prerogative. Here the legislature prescribed a measure of severe penalties for what it
regards as deleterious cybercrimes. They appear proportionate to the evil sought to be
punished. The power to determine penalties for offenses is not diluted or improperly
wielded simply because at some prior time the act or omission was but an element of
another offense or might just have been connected with another crime. 77 Judges and
magistrates can only interpret and apply them and have no authority to modify or revise
their range as determined by the legislative department. The courts should not
encroach on this prerogative of the lawmaking body. 78crallawlibrary
Section 12 of the Cybercrime Law
Section 12 provides:chanRoblesVirtualawlibrary
Sec. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due
cause, shall be authorized to collect or record by technical or electronic means traffic
data in real-time associated with specified communications transmitted by means of a
computer system.

Traffic data refer only to the communication’s origin, destination, route, time, date, size,
duration, or type of underlying service, but not content, nor identities.
All other data to be collected or seized or disclosed will require a court warrant.
Service providers are required to cooperate and assist law enforcement authorities in
the collection or recording of the above-stated information.
The court warrant required under this section shall only be issued or granted upon
written application and the examination under oath or affirmation of the applicant and
the witnesses he may produce and the showing: (1) that there are reasonable grounds
to believe that any of the crimes enumerated hereinabove has been committed, or is
being committed, or is about to be committed; (2) that there are reasonable grounds to
believe that evidence that will be obtained is essential to the conviction of any person
for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are
no other means readily available for obtaining such evidence.
Petitioners assail the grant to law enforcement agencies of the power to collect or
record traffic data in real time as tending to curtail civil liberties or provide opportunities
for official abuse. They claim that data showing where digital messages come from,
what kind they are, and where they are destined need not be incriminating to their
senders or recipients before they are to be protected. Petitioners invoke the right of
every individual to privacy and to be protected from government snooping into the
messages or information that they send to one another.
The first question is whether or not Section 12 has a proper governmental purpose
since a law may require the disclosure of matters normally considered private but then
only upon showing that such requirement has a rational relation to the purpose of the
law,79 that there is a compelling State interest behind the law, and that the provision
itself is narrowly drawn.80 In assessing regulations affecting privacy rights, courts
should balance the legitimate concerns of the State against constitutional
guarantees.81crallawlibrary
Undoubtedly, the State has a compelling interest in enacting the cybercrime law for
there is a need to put order to the tremendous activities in cyberspace for public
good.82 To do this, it is within the realm of reason that the government should be able
to monitor traffic data to enhance its ability to combat all sorts of cybercrimes.
Chapter IV of the cybercrime law, of which the collection or recording of traffic data is
a part, aims to provide law enforcement authorities with the power they need for
spotting, preventing, and investigating crimes committed in cyberspace. Crime-fighting
is a state business. Indeed, as Chief Justice Sereno points out, the Budapest
Convention on Cybercrimes requires signatory countries to adopt legislative measures
to empower state authorities to collect or record “traffic data, in real time, associated
with specified communications.”83 And this is precisely what Section 12 does. It
empowers law enforcement agencies in this country to collect or record such data.
96
But is not evidence of yesterday’s traffic data, like the scene of the crime after it has
been committed, adequate for fighting cybercrimes and, therefore, real-time data is
superfluous for that purpose? Evidently, it is not. Those who commit the crimes of
accessing a computer system without right,84 transmitting viruses,85 lasciviously
exhibiting sexual organs or sexual activity for favor or consideration; 86 and producing
child pornography87 could easily evade detection and prosecution by simply moving the
physical location of their computers or laptops from day to day. In this digital age, the
wicked can commit cybercrimes from virtually anywhere: from internet cafés, from
kindred places that provide free internet services, and from unregistered mobile internet
connectors. Criminals using cellphones under pre-paid arrangements and with
unregistered SIM cards do not have listed addresses and can neither be located nor
identified. There are many ways the cyber criminals can quickly erase their tracks.
Those who peddle child pornography could use relays of computers to mislead law
enforcement authorities regarding their places of operations. Evidently, it is only real-
time traffic data collection or recording and a subsequent recourse to court-issued
search and seizure warrant that can succeed in ferreting them out.
Petitioners of course point out that the provisions of Section 12 are too broad and do
not provide ample safeguards against crossing legal boundaries and invading the
people’s right to privacy. The concern is understandable. Indeed, the Court recognizes
in Morfe v. Mutuc88 that certain constitutional guarantees work together to create zones
of privacy wherein governmental powers may not intrude, and that there exists an
independent constitutional right of privacy. Such right to be left alone has been
regarded as the beginning of all freedoms.89crallawlibrary
But that right is not unqualified. In Whalen v. Roe, 90 the United States Supreme Court
classified privacy into two categories: decisional privacy and informational privacy.
Decisional privacy involves the right to independence in making certain important
decisions, while informational privacy refers to the interest in avoiding disclosure of
personal matters. It is the latter right—the right to informational privacy—that those who
oppose government collection or recording of traffic data in real-time seek to protect.
Informational privacy has two aspects: the right not to have private information
disclosed, and the right to live freely without surveillance and intrusion.91 In determining
whether or not a matter is entitled to the right to privacy, this Court has laid down a two-
fold test. The first is a subjective test, where one claiming the right must have an actual
or legitimate expectation of privacy over a certain matter. The second is an objective
test, where his or her expectation of privacy must be one society is prepared to accept
as objectively reasonable.92crallawlibrary
Since the validity of the cybercrime law is being challenged, not in relation to its
application to a particular person or group, petitioners’ challenge to Section 12 applies
to all information and communications technology (ICT) users, meaning the large
segment of the population who use all sorts of electronic devices to communicate with
one another. Consequently, the expectation of privacy is to be measured from the
general public’s point of view. Without reasonable expectation of privacy, the right to it

would have no basis in fact.
As the Solicitor General points out, an ordinary ICT user who courses his
communication through a service provider, must of necessity disclose to the latter, a
third person, the traffic data needed for connecting him to the recipient ICT user. For
example, an ICT user who writes a text message intended for another ICT user must
furnish his service provider with his cellphone number and the cellphone number of his
recipient, accompanying the message sent. It is this information that creates the traffic
data. Transmitting communications is akin to putting a letter in an envelope properly
addressed, sealing it closed, and sending it through the postal service. Those who post
letters have no expectations that no one will read the information appearing outside the
envelope.
Computer data—messages of all kinds—travel across the internet in packets and in a
way that may be likened to parcels of letters or things that are sent through the posts.
When data is sent from any one source, the content is broken up into packets and
around each of these packets is a wrapper or header. This header contains the traffic
data: information that tells computers where the packet originated, what kind of data is
in the packet (SMS, voice call, video, internet chat messages, email, online browsing
data, etc.), where the packet is going, and how the packet fits together with other
packets.93 The difference is that traffic data sent through the internet at times across
the ocean do not disclose the actual names and addresses (residential or office) of the
sender and the recipient, only their coded internet protocol (IP) addresses. The packets
travel from one computer system to another where their contents are pieced back
together. Section 12 does not permit law enforcement authorities to look into the
contents of the messages and uncover the identities of the sender and the recipient.
For example, when one calls to speak to another through his cellphone, the service
provider’s communication’s system will put his voice message into packets and send
them to the other person’s cellphone where they are refitted together and heard. The
latter’s spoken reply is sent to the caller in the same way. To be connected by the
service provider, the sender reveals his cellphone number to the service provider when
he puts his call through. He also reveals the cellphone number to the person he calls.
The other ways of communicating electronically follow the same basic pattern.
In Smith v. Maryland,94 cited by the Solicitor General, the United States Supreme Court
reasoned that telephone users in the ‘70s must realize that they necessarily convey
phone numbers to the telephone company in order to complete a call. That Court ruled
that even if there is an expectation that phone numbers one dials should remain private,
such expectation is not one that society is prepared to recognize as reasonable.
In much the same way, ICT users must know that they cannot communicate or
exchange data with one another over cyberspace except through some service
providers to whom they must submit certain traffic data that are needed for a successful
cyberspace communication. The conveyance of this data takes them out of the private
sphere, making the expectation to privacy in regard to them an expectation that society
is not prepared to recognize as reasonable.
97
The Court, however, agrees with Justices Carpio and Brion that when seemingly
random bits of traffic data are gathered in bulk, pooled together, and analyzed, they
reveal patterns of activities which can then be used to create profiles of the persons
under surveillance. With enough traffic data, analysts may be able to determine a
person’s close associations, religious views, political affiliations, even sexual
preferences. Such information is likely beyond what the public may expect to be
disclosed, and clearly falls within matters protected by the right to privacy. But has the
procedure that Section 12 of the law provides been drawn narrowly enough to protect
individual rights?
Section 12 empowers law enforcement authorities, “with due cause,” to collect or record
by technical or electronic means traffic data in real-time. Petitioners point out that the
phrase “due cause” has no precedent in law or jurisprudence and that whether there is
due cause or not is left to the discretion of the police. Replying to this, the Solicitor
General asserts that Congress is not required to define the meaning of every word it
uses in drafting the law.
Indeed, courts are able to save vague provisions of law through statutory construction.
But the cybercrime law, dealing with a novel situation, fails to hint at the meaning it
intends for the phrase “due cause.” The Solicitor General suggests that “due cause”
should mean “just reason or motive” and “adherence to a lawful procedure.” But the
Court cannot draw this meaning since Section 12 does not even bother to relate the
collection of data to the probable commission of a particular crime. It just says, “with
due cause,” thus justifying a general gathering of data. It is akin to the use of a general
search warrant that the Constitution prohibits.
Due cause is also not descriptive of the purpose for which data collection will be used.
Will the law enforcement agencies use the traffic data to identify the perpetrator of a
cyber attack? Or will it be used to build up a case against an identified suspect? Can
the data be used to prevent cybercrimes from happening?
The authority that Section 12 gives law enforcement agencies is too sweeping and
lacks restraint. While it says that traffic data collection should not disclose identities or
content data, such restraint is but an illusion. Admittedly, nothing can prevent law
enforcement agencies holding these data in their hands from looking into the identity of
their sender or receiver and what the data contains. This will unnecessarily expose the
citizenry to leaked information or, worse, to extortion from certain bad elements in these
agencies.
Section 12, of course, limits the collection of traffic data to those “associated with
specified communications.” But this supposed limitation is no limitation at all since,
evidently, it is the law enforcement agencies that would specify the target
communications. The power is virtually limitless, enabling law enforcement authorities
to engage in “fishing expedition,” choosing whatever specified communication they
want. This evidently threatens the right of individuals to privacy.
 98

The Solicitor General points out that Section 12 needs to authorize collection of traffic The service provider ordered to preserve computer data shall keep confidential the
data “in real time” because it is not possible to get a court warrant that would authorize order and its compliance.
the search of what is akin to a “moving vehicle.” But warrantless search is associated
with a police officer’s determination of probable cause that a crime has been committed, Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue deprivation of
that there is no opportunity for getting a warrant, and that unless the search is the right to property. They liken the data preservation order that law enforcement
immediately carried out, the thing to be searched stands to be removed. These authorities are to issue as a form of garnishment of personal property in civil forfeiture
preconditions are not provided in Section 12. proceedings. Such order prevents internet users from accessing and disposing of traffic
data that essentially belong to them.
The Solicitor General is honest enough to admit that Section 12 provides minimal
protection to internet users and that the procedure envisioned by the law could be better No doubt, the contents of materials sent or received through the internet belong to their
served by providing for more robust safeguards. His bare assurance that law authors or recipients and are to be considered private communications. But it is not
enforcement authorities will not abuse the provisions of Section 12 is of course not clear that a service provider has an obligation to indefinitely keep a copy of the same
enough. The grant of the power to track cyberspace communications in real time and as they pass its system for the benefit of users. By virtue of Section 13, however, the
determine their sources and destinations must be narrowly drawn to preclude law now requires service providers to keep traffic data and subscriber information
abuses.95crallawlibrary relating to communication services for at least six months from the date of the
transaction and those relating to content data for at least six months from receipt of the
Petitioners also ask that the Court strike down Section 12 for being violative of the void- order for their preservation.
for-vagueness doctrine and the overbreadth doctrine. These doctrines however, have
been consistently held by this Court to apply only to free speech cases. But Section 12 Actually, the user ought to have kept a copy of that data when it crossed his computer
on its own neither regulates nor punishes any type of speech. Therefore, such analysis if he was so minded. The service provider has never assumed responsibility for their
is unnecessary. loss or deletion while in its keep.

This Court is mindful that advances in technology allow the government and kindred At any rate, as the Solicitor General correctly points out, the data that service providers
institutions to monitor individuals and place them under surveillance in ways that have preserve on orders of law enforcement authorities are not made inaccessible to users
previously been impractical or even impossible. “All the forces of a technological age x by reason of the issuance of such orders. The process of preserving data will not unduly
x x operate to narrow the area of privacy and facilitate intrusions into it. In modern hamper the normal transmission or use of the same.
terms, the capacity to maintain and support this enclave of private life marks the
difference between a democratic and a totalitarian society.”96 The Court must ensure Section 14 of the Cybercrime Law
that laws seeking to take advantage of these technologies be written with specificity
and definiteness as to ensure respect for the rights that the Constitution guarantees. Section 14 provides:chanRoblesVirtualawlibrary

Section 13 of the Cybercrime Law
Section 13 provides:chanRoblesVirtualawlibrary
Sec. 13. Preservation of Computer Data. — The integrity of traffic data and subscriber
information relating to communication services provided by a service provider shall be
preserved for a minimum period of six (6) months from the date of the transaction.
Content data shall be similarly preserved for six (6) months from the date of receipt of
the order from law enforcement authorities requiring its preservation.
Law enforcement authorities may order a one-time extension for another six (6) months:
Provided, That once computer data preserved, transmitted or stored by a service
provider is used as evidence in a case, the mere furnishing to such service provider of
the transmittal document to the Office of the Prosecutor shall be deemed a notification
to preserve the computer data until the termination of the case.
Sec. 14. Disclosure of Computer Data. — Law enforcement authorities, upon securing
a court warrant, shall issue an order requiring any person or service provider to disclose
or submit subscriber’s information, traffic data or relevant data in his/its possession or
control within seventy-two (72) hours from receipt of the order in relation to a valid
complaint officially docketed and assigned for investigation and the disclosure is
necessary and relevant for the purpose of investigation.
The process envisioned in Section 14 is being likened to the issuance of a subpoena.
Petitioners’ objection is that the issuance of subpoenas is a judicial function. But it is
well-settled that the power to issue subpoenas is not exclusively a judicial function.
Executive agencies have the power to issue subpoena as an adjunct of their
investigatory powers.98crallawlibrary
Besides, what Section 14 envisions is merely the enforcement of a duly issued court
warrant, a function usually lodged in the hands of law enforcers to enable them to carry
out their executive functions. The prescribed procedure for disclosure would not
constitute an unlawful search or seizure nor would it violate the privacy of
 99

communications and correspondence. Disclosure can be made only after judicial Sec. 17. Destruction of Computer Data. — Upon expiration of the periods as provided
intervention. in Sections 13 and 15, service providers and law enforcement authorities, as the case
may be, shall immediately and completely destroy the computer data subject of a
Section 15 of the Cybercrime Law preservation and examination.

Section 15 provides:chanRoblesVirtualawlibrary Section 17 would have the computer data, previous subject of preservation or
examination, destroyed or deleted upon the lapse of the prescribed period. The Solicitor
Sec. 15. Search, Seizure and Examination of Computer Data. — Where a search and General justifies this as necessary to clear up the service provider’s storage systems
seizure warrant is properly issued, the law enforcement authorities shall likewise have and prevent overload. It would also ensure that investigations are quickly concluded.
the following powers and duties.
Petitioners claim that such destruction of computer data subject of previous
Within the time period specified in the warrant, to conduct interception, as defined in preservation or examination violates the user’s right against deprivation of property
this Act, and:chanRoblesVirtualawlibrary without due process of law. But, as already stated, it is unclear that the user has a
demandable right to require the service provider to have that copy of the data saved
(a) To secure a computer system or a computer data storage medium; indefinitely for him in its storage system. If he wanted them preserved, he should have
saved them in his computer when he generated the data or received it. He could also
(b) To make and retain a copy of those computer data secured; request the service provider for a copy before it is deleted.

(c) To maintain the integrity of the relevant stored computer data; Section 19 of the Cybercrime Law

(d) To conduct forensic analysis or examination of the computer data storage medium; Section 19 empowers the Department of Justice to restrict or block access to computer
and data:chanRoblesVirtualawlibrary

(e) To render inaccessible or remove those computer data in the accessed computer Sec. 19. Restricting or Blocking Access to Computer Data.— When a computer data is
or computer and communications network. prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an
order to restrict or block access to such computer data.
Pursuant thereof, the law enforcement authorities may order any person who has
Petitioners contest Section 19 in that it stifles freedom of expression and violates the
knowledge about the functioning of the computer system and the measures to protect
right against unreasonable searches and seizures. The Solicitor General concedes that
and preserve the computer data therein to provide, as is reasonable, the necessary
this provision may be unconstitutional. But since laws enjoy a presumption of
information, to enable the undertaking of the search, seizure and examination.
constitutionality, the Court must satisfy itself that Section 19 indeed violates the
freedom and right mentioned.
Law enforcement authorities may request for an extension of time to complete the
examination of the computer data storage medium and to make a return thereon but in
Computer data99 may refer to entire programs or lines of code, including malware, as
no case for a period longer than thirty (30) days from date of approval by the court.
well as files that contain texts, images, audio, or video recordings. Without having to go
Petitioners challenge Section 15 on the assumption that it will supplant established into a lengthy discussion of property rights in the digital space, it is indisputable that
search and seizure procedures. On its face, however, Section 15 merely enumerates computer data, produced or created by their writers or authors may constitute personal
the duties of law enforcement authorities that would ensure the proper collection, property. Consequently, they are protected from unreasonable searches and seizures,
preservation, and use of computer system or data that have been seized by virtue of a whether while stored in their personal computers or in the service provider’s systems.
court warrant. The exercise of these duties do not pose any threat on the rights of the
person from whom they were taken. Section 15 does not appear to supersede existing Section 2, Article III of the 1987 Constitution provides that the right to be secure in one’s
search and seizure rules but merely supplements them. papers and effects against unreasonable searches and seizures of whatever nature
and for any purpose shall be inviolable. Further, it states that no search warrant shall
Section 17 of the Cybercrime Law issue except upon probable cause to be determined personally by the judge. Here, the
Government, in effect, seizes and places the computer data under its control and
Section 17 provides:chanRoblesVirtualawlibrary disposition without a warrant. The Department of Justice order cannot substitute for
judicial search warrant.

The content of the computer data can also constitute speech. In such a case, Section
19 operates as a restriction on the freedom of expression over cyberspace. Certainly
not all forms of speech are protected. Legislature may, within constitutional bounds,
declare certain kinds of expression as illegal. But for an executive officer to seize
content alleged to be unprotected without any judicial warrant, it is not enough for him
to be of the opinion that such content violates some law, for to do so would make him
judge, jury, and executioner all rolled into one. 100crallawlibrary
Not only does Section 19 preclude any judicial intervention, but it also disregards
jurisprudential guidelines established to determine the validity of restrictions on speech.
Restraints on free speech are generally evaluated on one of or a combination of three
tests: the dangerous tendency doctrine, the balancing of interest test, and the clear and
present danger rule.101 Section 19, however, merely requires that the data to be
blocked be found prima facie in violation of any provision of the cybercrime law. Taking
Section 6 into consideration, this can actually be made to apply in relation to any penal
provision. It does not take into consideration any of the three tests mentioned above.
The Court is therefore compelled to strike down Section 19 for being violative of the
constitutional guarantees to freedom of expression and against unreasonable searches
and seizures.
Section 20 of the Cybercrime Law
Section 20 provides:chanRoblesVirtualawlibrary
Sec. 20. Noncompliance. — Failure to comply with the provisions of Chapter IV hereof
specifically the orders from law enforcement authorities shall be punished as a violation
of Presidential Decree No. 1829 with imprisonment of prision correctional in its
maximum period or a fine of One hundred thousand pesos (Php100,000.00) or both,
for each and every noncompliance with an order issued by law enforcement authorities.
Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument is
that the mere failure to comply constitutes a legislative finding of guilt, without regard
to situations where non-compliance would be reasonable or valid.
But since the non-compliance would be punished as a violation of Presidential Decree
(P.D.) 1829,102 Section 20 necessarily incorporates elements of the offense which are
defined therein. If Congress had intended for Section 20 to constitute an offense in and
of itself, it would not have had to make reference to any other statue or provision.
P.D. 1829 states:chanRoblesVirtualawlibrary
Section 1. The penalty of prision correccional in its maximum period, or a fine ranging
from 1,000 to 6,000 pesos, or both, shall be imposed upon any person who knowingly
or willfully obstructs, impedes, frustrates or delays the apprehension of suspects and
the investigation and prosecution of criminal cases by committing any of the following
acts: x x x.
100
Thus, the act of non-compliance, for it to be punishable, must still be done “knowingly
or willfully.” There must still be a judicial determination of guilt, during which, as the
Solicitor General assumes, defense and justifications for non-compliance may be
raised. Thus, Section 20 is valid insofar as it applies to the provisions of Chapter IV
which are not struck down by the Court.
Sections 24 and 26(a) of the Cybercrime Law
Sections 24 and 26(a) provide:chanRoblesVirtualawlibrary
Sec. 24. Cybercrime Investigation and Coordinating Center.- There is hereby created,
within thirty (30) days from the effectivity of this Act, an inter-agency body to be known
as the Cybercrime Investigation and Coordinating Center (CICC), under the
administrative supervision of the Office of the President, for policy coordination among
concerned agencies and for the formulation and enforcement of the national
cybersecurity plan.
Sec. 26. Powers and Functions.- The CICC shall have the following powers and
functions:chanRoblesVirtualawlibrary
(a) To formulate a national cybersecurity plan and extend immediate assistance of real
time commission of cybercrime offenses through a computer emergency response
team (CERT); x x x.
Petitioners mainly contend that Congress invalidly delegated its power when it gave the
Cybercrime Investigation and Coordinating Center (CICC) the power to formulate a
national cybersecurity plan without any sufficient standards or parameters for it to
follow.
In order to determine whether there is undue delegation of legislative power, the Court
has adopted two tests: the completeness test and the sufficient standard test. Under
the first test, the law must be complete in all its terms and conditions when it leaves the
legislature such that when it reaches the delegate, the only thing he will have to do is
to enforce it. The second test mandates adequate guidelines or limitations in the law to
determine the boundaries of the delegate’s authority and prevent the delegation from
running riot.103crallawlibrary
Here, the cybercrime law is complete in itself when it directed the CICC to formulate
and implement a national cybersecurity plan. Also, contrary to the position of the
petitioners, the law gave sufficient standards for the CICC to follow when it provided a
definition of cybersecurity.
Cybersecurity refers to the collection of tools, policies, risk management approaches,
actions, training, best practices, assurance and technologies that can be used to protect
cyber environment and organization and user’s assets.104 This definition serves as the
parameters within which CICC should work in formulating the cybersecurity plan.
Further, the formulation of the cybersecurity plan is consistent with the policy of the law
 101

to “prevent and combat such [cyber] offenses by facilitating their detection, k. Section 15 that authorizes the search, seizure, and examination of computer
investigation, and prosecution at both the domestic and international levels, and by data under a court-issued warrant;
providing arrangements for fast and reliable international cooperation.” 105 This policy is
clearly adopted in the interest of law and order, which has been considered as sufficient l. Section 17 that authorizes the destruction of previously preserved computer
standard.106 Hence, Sections 24 and 26(a) are likewise valid. data after the expiration of the prescribed holding periods;

m. Section 20 that penalizes obstruction of justice in relation to cybercrime

1. VOID for being UNCONSTITUTIONAL:chanRoblesVirtualawlibrary
investigations;
a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited
commercial communications;
n. Section 24 that establishes a Cybercrime Investigation and Coordinating
Center (CICC);
b. Section 12 that authorizes the collection or recording of traffic data in real-
time; and
o. Section 26(a) that defines the CICC’s Powers and Functions; and

c. Section 19 of the same Act that authorizes the Department of Justice to restrict
p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes libel.
or block access to suspected Computer Data.
Further, the Court DECLARES:chanRoblesVirtualawlibrary
2. VALID and CONSTITUTIONAL:chanRoblesVirtualawlibrary

a. Section 4(a)(1) that penalizes accessing a computer system without right;
b. Section 4(a)(3) that penalizes data interference, including transmission of
viruses;
c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name over
the internet in bad faith to the prejudice of others;
d. Section 4(b)(3) that penalizes identity theft or the use or misuse of identifying
information belonging to another;
e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of sexual
organs or sexual activity for favor or consideration;
f. Section 4(c)(2) that penalizes the production of child pornography;
g. Section 6 that imposes penalties one degree higher when crimes defined
under the Revised Penal Code are committed with the use of information and
communications technologies;
h. Section 8 that prescribes the penalties for cybercrimes;
1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with
respect to the original author of the post; but VOID and UNCONSTITUTIONAL with
respect to others who simply receive the post and react to it; and
2. Section 5 that penalizes aiding or abetting and attempt in the commission of
cybercrimes as VALID and CONSTITUTIONAL only in relation to Section 4(a)(1) on
Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data
Interference, Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of
Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related
Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-
related Identity Theft, and Section 4(c)(1) on Cybersex;
but VOID and UNCONSTITUTIONAL with respect to Sections 4(c)(2) on Child
Pornography, 4(c)(3) on Unsolicited Commercial Communications, and 4(c)(4) on
online Libel.
Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct
application of Section 7 that authorizes prosecution of the offender under both the
Revised Penal Code and Republic Act 10175 to actual cases, WITH THE
EXCEPTION of the crimes of:chanRoblesVirtualawlibrary

i. Section 13 that permits law enforcement authorities to require service 1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic
providers to preserve traffic data and subscriber information as well as Act 10175 and Article 353 of the Revised Penal Code constitutes a violation of the
specified content data for six months; proscription against double jeopardy; as well as

j. Section 14 that authorizes the disclosure of computer data under a court- 2. Child pornography committed online as to which, charging the offender under both
issued warrant; Section 4(c)(2) of Republic Act 10175 and Republic Act 9775 or the Anti-Child
Pornography Act of 2009 also constitutes a violation of the same proscription, and, in
respect to these, is VOID and UNCONSTITUTIONAL. SO ORDERED.

CONCURRING AND DISSENTING OPINION
CARPIO, J.:
Corporations of all shapes and sizes track what you buy, store and analyze our data,
and use it for commercial purposes; thats how those targeted ads pop up on your
computer or smartphone. But all of us understand that the standards for government
surveillance must be higher. Given the unique power of the state, it is not enough for
leaders to say:
trust us, we won’t abuse the data we collect. For history has too many examples when
that trust has been breached. Our system of government is built on the premise that
our liberty cannot depend on the good intentions of those in power; it depends upon
the law to constrain those in power.1
President Barack Obama
17 January 2014, on National
Security Agency Reforms
I concur in striking down as unconstitutional Section 4(c)(3), Section 7, Section 12, and
Section 19 of Republic Act No. 10175 (RA 10175) (1) penalizing unsolicited commercial
speech; (2) allowing multiple prosecutions post-conviction under RA 10175; (3)
authorizing the warrantless collection in bulk of traffic data; and (4) authorizing the
extrajudicial restriction or blocking of access to computer data, respectively, for being
violative of the Free Speech, Search and Seizure, Privacy of Communication, and
Double Jeopardy Clauses.
I dissent, however, from the conclusion that (1) Article 354 of the Revised Penal Code
(Code) creating the presumption of malice in defamatory imputations, and (2) Section
4(c)(1) of RA 10175 penalizing "cybersex," are not equally violative of the constitutional
guarantees of freedom of speech and expression. I therefore vote to declare Article 354
of the Code, as far as it applies to public officers and public figures, and Section 4(c)(1)
of RA 10175, unconstitutional for violating Section 4, Article III of the Constitution.
Article 354 of the Code Repugnant to the Free Speech Clause
Article 354’s Presumption of Malice Irreconcilable with Free Speech Jurisprudence On
Libel of Public Officers and Public Figures
Article 4(c)(4) of RA 10175 impliedly re-adopts Article 354 of the Code without any
qualification. Article 354 took effect three years 2 before the ratification of the 1935
Constitution that embodied the Free Speech Clause.3 Unlike most of the provisions of
the Code which are derived from the Spanish Penal Code of 1870, Article 354 is based
on legislation4 passed by the Philippine Commission during the American occupation.
Nevertheless, Article 354 is inconsistent with norms on free speech and free expression
now prevailing in both American and Philippine constitutional jurisprudence.
Article 354 provides as follows:
102
Requirement for publicity. — Every defamatory imputation is presumed to be malicious,
even if it be true, if no good intention and justifiable motive for making it is shown, except
in the following cases:
1. A private communication made by any person to another in the performance of any
legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative or other official proceedings which are not of confidential nature, or
of any statement, report or speech delivered in said proceedings, or of any other act
performed by public officers in the exercise of their functions. (Italicization supplied)
While the text of Article 354 has remained intact since the Code’s enactment in 1930,
constitutional rights have rapidly expanded since the latter half of the last century, owing
to expansive judicial interpretations of broadly worded constitutional guarantees such
as the Free Speech Clause. Inevitably, judicial doctrines crafted by the U.S. Supreme
Court protective of the rights to free speech, free expression and free press found their
way into local jurisprudence, adopted by this Court as authoritative interpretation of the
Free Speech Clause in the Philippine Bill of Rights. One such doctrine is the New York
Times actual malice rule, named after the 1964 case in which it was crafted, New York
Times v. Sullivan.5
New York Times broadened the mantle of protection accorded to communicative
freedoms by holding that the "central meaning" of the Free Speech Clause is the
protection of citizens who criticize official conduct even if such criticism is defamatory
and false. True, the defamed public official may still recover damages for libel.
However, as precondition for such recovery, New York Times laid down a formidable
evidentiary burden6 – the public official must prove that the false defamatory statement
was made "with actual malice – that is, with knowledge that it was false or with reckless
disregard of whether it was false or not."7
The broad protection New York Times extended to communicative rights of citizens and
the press vis-à-vis the conduct of public officials was grounded on the theory that
"unfettered interchange of ideas for the bringing about of political and social changes
desired by the people"8 is indispensable in perfecting the experiment of self-
governance. As for erroneous statements, the ruling considered them "inevitable in free
debate, and that [they] must be protected if the freedoms of expression are to have the
‘breathing space’ that they need x x x to survive."9 The actual malice doctrine was later
made applicable to public figures.10
Six years after New York Times became U.S. federal law in 1964, this Court took note
of the actual malice doctrine as part of a trend of local and foreign jurisprudence
enlarging the protection of the press under the Free Speech Clause.11 Since then, the
Court has issued a steady stream of decisions applying New York Times as controlling
doctrine to dismiss civil12 and criminal13 libel complaints filed by public officers or public
figures. As Justice Teehankee aptly noted:
The Court has long adopted the criterion set forth in the U.S. benchmark case of New
York Times Co. vs. Sullivan that "libel can claim no talismanic immunity from

constitutional limitations" that protect the preferred freedoms of speech and press.
Sullivan laid down the test of actual malice, viz. "(T)he constitutional guaranty of
freedom of speech and press prohibits a public official from recovering damages for a
defamatory falsehood relating to his official conduct unless he proves that the statement
was made with ‘actual malice’ that is, with knowledge that it was false or with reckless
disregard of whether it was false or not." x x x.14
Indeed, just as the actual malice doctrine is enshrined in the U.S. First Amendment
jurisprudence, it too has become interwoven into our own understanding of the Free
Speech Clause of the Philippine Bill of Rights of the 1973 and 1987 Constitutions.15
The actual malice rule enunciates three principles, namely:
1) Malice is not presumed even in factually false and defamatory statements against
public officers and public figures; it must be proven as a fact for civil and criminal liability
to lie;
2) Report on official proceedings or conduct of an officer may contain fair comment,
including factually erroneous and libelous criticism; and
3) Truth or lack of reckless disregard for the truth or falsity of a defamatory statement
is an absolute defense against public officers and public figures.
In contrast, Article 354, in relation to Article 361 and Article 362 of the Code, operates
on the following principles:
1) Malice is presumed in every defamatory imputation, even if true (unless good
intention and justifiable motives are shown);
2) Report on official proceedings or conduct of an officer must be made without
comment or remarks, or, alternatively, must be made without malice;16 and
3) In defamatory allegations made against a public official, truth is a defense only if the
imputed act or omission constitutes a crime or if the imputed act or omission relates to
official duties.17
The actual malice rule and Article 354 of the Code impose contradictory rules on (1)
the necessity of proof of malice in defamatory imputations involving public proceedings
or conduct of a public officer or public figure; and (2) the availability of truth as a defense
in defamatory imputations against public officials or public figures. The former requires
proof of malice and allows truth as a defense unqualifiedly, while the latter presumes
malice and allows truth as a defense selectively. The repugnancy between the actual
malice rule and Article 354 is clear, direct and absolute.
Nonetheless, the Office of the Solicitor General (OSG) argues for the retention of Article
354 in the Code, suggesting that the Court can employ a "limiting construction" of the
provision to reconcile it with the actual malice rule. 18 The ponencia appears to agree,
holding that the actual malice rule "impl[ies] a stricter standard of ‘malice’ x x x where
the offended party is a [public officer or] public figure," the "penal code and, implicitly,
the cybercrime law mainly target libel against private persons." 19
103
Allowing a criminal statutory provision clearly repugnant to the Constitution, and directly
attacked for such repugnancy, to nevertheless remain in the statute books is a gross
constitutional anomaly which, if tolerated, weakens the foundation of constitutionalism
in this country. "The Constitution is either a superior, paramount law, x x x or it is on a
level with ordinary legislative acts,"20 and if it is superior, as we have professed ever
since the Philippines operated under a Constitution, then "a law repugnant to the
Constitution is void."21
Neither does the ponencia’s claim that Article 354 (and the other provisions in the Code
penalizing libel) "mainly target libel against private persons" furnish justification to let
Article 354 stand. First, it is grossly incorrect to say that Article 354 "mainly target[s]
libel against private persons." Article 354 expressly makes reference to news reports
of "any judicial, legislative or other official proceedings" which necessarily involve public
officers as principal targets of libel. Second, the proposition that this Court ought to
refrain from exercising its power of judicial review because a law is constitutional when
applied to one class of persons but unconstitutional when applied to another class is
fraught with mischief. It stops this Court from performing its duty,22 as the highest court
of the land, to "say what the law is" whenever a law is attacked as repugnant to the
Constitution. Indeed, it is not only the power but also the duty of the Court to declare
such law unconstitutional as to one class, and constitutional as to another, if valid and
substantial class distinctions are present.
Undoubtedly, there is a direct and absolute repugnancy between Article 354, on one
hand, and the actual malice rule under the Free Speech Clause, on the other hand.
Section 4(c)(4) of RA 10175 impliedly re-adopts Article 354 without qualification, giving
rise to a clear and direct conflict between the re-adopted Article 354 and the Free
Speech Clause based on prevailing jurisprudence. It now becomes imperative for this
Court to strike down Article 354, insofar as it applies to public officers and public figures.
The ramifications of thus striking down Article 354 are: (1) for cases filed by public
officers or public figures, civil or criminal liability will lie only if the complainants prove,
through the relevant quantum of proof, that the respondent made the false defamatory
imputation with actual malice, that is, with knowledge that it was false or with reckless
disregard of whether it was false or not; and (2) for cases filed by private individuals,
the respondent cannot raise truth as a defense to avoid liability if there is no good
intention and justifiable motive.
Section 4(c)(1) Fails Strict Scrutiny
Section 4(c)(1) which provides:
Cybercrime Offenses. — The following acts constitute the offense of cybercrime
punishable under this Act:
xxxx
(c) Content-related Offenses:

(1) Cybersex. — The willful engagement, maintenance, control, or operation, directly
or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid
of a computer system, for favor or consideration.
is attacked by petitioners as unconstitutionally overbroad. Petitioners in G.R. No.
203378 contend that Section 4(c)(1) sweeps in protected online speech such as "works
of art that depict sexual activities" which museums make accessible to the public for a
fee.23 Similarly, the petitioner in G.R. No. 203359, joining causes with the petitioner in
G.R. No. 203518, adopts the latter’s argument that the crime penalized by Section
4(c)(1) "encompasses even commercially available cinematic films which feature adult
subject matter and artistic, literary or scientific material and instructional material for
married couples."24
The OSG counters that Section 4(c)(1) does not run afoul with the Free Speech Clause
because it merely "seeks to punish online exhibition of sexual organs and activities or
cyber prostitution and white slave trade for favor or consideration." 25 It adds that
"publication of pornographic materials in the internet [is] punishable under Article 201
of the Revised Penal Code x x x which has not yet been declared
unconstitutional."26 The ponencia agrees, noting that the "subject" of Section 4(c)(1) is
"not novel" as it is allegedly covered by two other penal laws, Article 201 of the Code
and Republic Act No. 9208 (The Anti-Trafficking in Persons Act of 2003 [RA 9208]).
The ponencia rejects the argument that Section 4(c)(1) is overbroad because "it stands
a construction that makes it apply only to persons engaged in the business of
maintaining, controlling, or operating x x x the lascivious exhibition of sexual organs or
sexual activity, with the aid of a computer system."27
The government and the ponencia’s position cannot withstand analysis.
As Section 4(c) of RA 10175 itself states, the crimes defined under that part of RA
10175, including Section 4(c)(1), are "Content-related Offenses," penalizing the content
of categories of online speech or expression. As a content-based regulation, Section
4(c)(1) triggers the most stringent standard of review for speech restrictive laws – strict
scrutiny – to test its validity.28
Under this heightened scrutiny, a regulation will pass muster only if the government
shows (1) a compelling state interest justifying the suppression of speech; and (2) that
the law is narrowly-tailored to further such state interest. On both counts, the
government in this case failed to discharge its burden.
The state interests the OSG appears to advance as bases for Section 4(c)(1) are: (1)
the protection of children "as cybersex operations x x x are most often committed
against children," and (2) the cleansing of cyber traffic by penalizing the online
publication of pornographic images.29 Although legitimate or even substantial, these
interests fail to rise to the level of compelling interests because Section 4(c)(1) is both
(1) overinclusive in its reach of the persons exploited to commit the offense of cybersex,
and (2) underinclusive in its mode of commission. These defects expose a legislative
failure to narrowly tailor Section 4(c)(1) to tightly fit its purposes.
104
As worded, Section 4(c)(1) penalizes the "willful engagement, maintenance, control, or
operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual
activity, with the aid of a computer system, for favor or consideration." On the first
interest identified by the government, the overinclusivity of this provision rests on the
lack of a narrowing clause limiting its application to minors. As a result, Section 4(c)(1)
penalizes the "lascivious exhibition of sexual organs of, or sexual activity" involving
minors and adults, betraying a loose fit between the state interest and the means to
achieve it.
Indeed, the proffered state interest of protecting minors is narrowly advanced not by
Section 4(c)(1) but by the provision immediately following it, Section 4(c)(2), which
penalizes online child pornography. Section 4(c)(2) provides:
(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by
Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed through
a computer system x x x.
Republic Act No. 9775 defines "Child pornography" as referring to –
any representation, whether visual, audio, or written combination thereof, by electronic,
mechanical, digital, optical, magnetic or any other means, of child engaged or involved
in real or simulated explicit sexual activities.30 (Emphasis supplied)
Under Section 3 of that law, the term "explicit sexual activities" is defined as follows:
Section 3. Definition of terms. –
xxxx
(c) "Explicit Sexual Activity" includes actual or simulated –
(1) As to form:
(i) sexual intercourse or lascivious act including, but not limited to, contact involving
genital to genital, oral to genital, anal to genital, or oral to anal, whether between
persons of the same or opposite sex;
xxxx
(5) lascivious exhibition of the genitals, buttocks, breasts, pubic area and/or anus[.]
(Emphasis supplied)
Clearly then, it is Section 4(c)(2), not Section 4(c)(1), that narrowly furthers the state
interest of protecting minors by punishing the "representation x x x by electronic means"
of sexually explicit conduct including the exhibition of sexual organs of, or sexual acts,
involving minors.
Section 4(c)(1) does not advance such state interest narrowly because it is broadly
drawn to cover both minors and adults. Section 4(c)(2) is constitutional because it
narrowly prohibits cybersex acts involving minors only, while Section 4(c)(1) is

unconstitutional because it expands the prohibition to cybersex acts involving both
minors and adults when the justification for the prohibition is to protect minors only.
The overinclusivity of Section 4(c)(1) vis-a-vis the second state interest the government
invokes results from the broad language Congress employed to define "cybersex." As
the petitioners in G.R. No. 203378, G.R. No. 203359 and G.R. No. 203518 correctly
point out, the crime of "lascivious exhibition of sexual organs or sexual activity, with the
aid of a computer system, for favor or consideration" embraces within its ambit "works
of art that depict sexual activities" made accessible to the public for a fee or
"commercially available cinematic films which feature adult subject matter and artistic,
literary or scientific material and instructional material for married couples."31 Congress
could have narrowly tailored Section 4(c)(1) to cover only online pornography by hewing
closely to the Miller test – the prevailing standard for such category of unprotected
speech, namely, "an average person, applying contemporary standards would find
[that] the work, taken as a whole, appeals to the prurient interest by depicting or
describing in a patently offensive way, sexual conduct specifically defined by the
applicable x x x law and x x x, taken as a whole, lacks serious literary, artistic, political,
or scientific value."32
Moreover, Section 4(c)(1) penalizes "any lascivious exhibition of sexual organs or
sexual activity, with the aid of a computer system, for favor or consideration." There are
many fee-based online medical publications that illustrate sexual organs and even
sexual acts. Section 4(c)(1) will now outlaw all these online medical publications which
are needed by doctors in practicing their profession. This again shows the
overinclusiveness of Section 4(c)(1) in violation of the Free Speech Clause.
The loose fit between the government interests of cleansing the Internet channels of
immoral content and of protecting minors, on the one hand, and the means employed
to further such interests, on the other hand, is highlighted by the underincluvisity of
Section 4(c)(1) insofar as the manner by which it regulates content of online speech.
Section 4(c)(1) limits the ambit of its prohibition to fee-based websites exhibiting sexual
organs or sexual activity. In doing so, it leaves outside its scope and unpunished under
Section 4(c)(1) non-fee based porn websites, such as those generating income through
display advertisements. The absence of regulation under Section 4(c)(1) of undeniably
unprotected online speech in free and open porn websites defeats the advancement of
the state interests behind the enactment of Section 4(c)(1) because unlike fee-based
online porn websites where the pool of viewers is narrowed down to credit card-owning
subscribers who affirm they are adults, free and open porn websites are accessible to
all, minors and adults alike. Instead of purging the Internet of pornographic content,
Section 4(c)(1) will trigger the proliferation of free and open porn websites which, unlike
their fee-based counterparts, are not subject to criminal regulation under Section
4(c)(1). What Section 4(c)(1) should have prohibited and penalized are free and open
porn websites which are accessible by minors, and not fee-based porn websites which
are accessible only by credit card-owning adults, unless such fee-based websites cater
to child pornography, in which case they should also be prohibited and penalized.
105
It is doubtful whether Congress, in failing to tailor Section 4(c)(1) to narrowly advance
state interests, foresaw this worrisome and absurd effect. It is, unfortunately, an
altogether common by-product of loosely crafted legislations.
Contrary to the ponencia’s conclusion, Section 4(c)(1) does not cover "the same
subject" as Article 201 of the Code and RA 9208. Article 201penalizes "Immoral
doctrines, obscene publications and exhibitions and indecent shows" as understood
under the Miller test.33 On the other hand, RA 9208 penalizes trafficking in persons (or
its promotion) for illicit purposes (Section 4[a]). The fact that these statutory provisions
remain valid in the statute books has no bearing on the question whether a statutory
provision penalizing the "lascivious exhibition of sexual organs or sexual activity, with
the aid of a computer system, for favor or consideration" offends the Free Speech
Clause.
The majority’s decision to uphold the validity of Section 4(c)(1) reverses, without
explanation, the well-entrenched jurisprudence in this jurisdiction applying the
obscenity test of Miller. Just five years ago in 2009, this Court unanimously applied
Miller in Soriano v. Laguardia34 to test whether the statements aired on late night TV
qualified for protection under the Free Speech Clause. Much earlier in 2006, the Court
also applied Miller to review a conviction for violation of Article 201 of the Code on
obscene publications in Fernando v. Court of Appeals. 35 It was in Pita v. Court of
Appeals,36 however, decided in 1989 over a decade after Miller, where the Court had
first occasion to describe Miller as "the latest word" in the evolution of the obscenity test
in the U.S. jurisdiction. Indeed, as I noted in my separate opinion in Soriano, Miller is
an "expansion" of previous tests on pornography developed in the U.S. and English
jurisdictions, liberalizing the elements of previous tests (Hicklin and Roth):
The leading test for determining what material could be considered obscene was the
famous Regina v. Hicklin case wherein Lord Cockburn enunciated thus:
I think the test of obscenity is this, whether the tendency of the matter charged as
obscenity is to deprave and corrupt those whose minds are open to such immoral
influences, and into whose hands a publication of this sort may fall.
Judge Learned Hand, in United States v. Kennerly, opposed the strictness of the Hicklin
test even as he was obliged to follow the rule. He wrote:
I hope it is not improper for me to say that the rule as laid down, however consonant it
may be with mid-Victorian morals, does not seem to me to answer to the understanding
and morality of the present time.
Roth v. United States laid down the more reasonable and thus, more acceptable test
for obscenity: "whether to the average person, applying contemporary community
standards, the dominant theme of the material taken as a whole appeals to prurient
interest." Such material is defined as that which has "a tendency to excite lustful
thoughts," and "prurient interest" as "a shameful or morbid interest in nudity, sex, or
excretion."

Miller v. California merely expanded the Roth test to include two additional criteria: "the
work depicts or describes, in a patently offensive way, sexual conduct specifically
defined by the applicable state law; and the work, taken as whole, lacks serious literary,
artistic, political, or scientific value." The basic test, as applied in our jurisprudence,
extracts the essence of both Roth and Miller – that is, whether the material appeals to
prurient interest.37 (Italicization supplied; internal citations omitted)
Miller is the modern obscenity test most protective of speech uniformly followed in this
jurisdiction for over two decades. The majority, in upholding Section 4(c)(1) and
rejecting Miller, regresses to less protective frameworks of speech analysis. Because
neither the ponencia nor the concurring opinions devote discussion on this doctrinal
shift, one is left guessing whether the Philippine jurisdiction’s test on pornography has
reverted only up to Roth or reaches as far back as the discredited Hicklin test. Either
way, the lowered protection afforded to works claimed as obscene turns back the clock
of free expression protection to the late 1960s and beyond when prevailing mores of
morality are incongruous to 21st century realities.
Section 4(c)(3) Repugnant to the Free Speech Clause
Section 4(c)(3) of RA 10175 makes criminal the transmission through a computer
system of "electronic communication x x x which seek to advertise, sell, or offer for sale
products and services" unless they fall under three categories of exceptions. These
categories are: (1) the recipient of the commercial message "gave prior affirmative
consent" to do so; (2) the "primary intent" of the commercial message "is for service
and/or administrative announcements from the sender" to its "users, subscribers or
customers"; and (3) the commercial message (a) has an "opt-out" feature; (b) has a
source which is "not purposely disguise[d]"; and (c) "does not purposely include
misleading information x x x to induce the recipient to read the message." According to
the OSG, Congress enacted Section 4(c)(3) to improve the "efficiency of commerce
and technology" and prevent interference with "the owner’s peaceful enjoyment of his
property [computer device]."38
Section 4(c)(3) fails scrutiny. Section 4(c)(3) impermissibly restricts the flow of truthful
and non-misleading commercial speech in cyberspace that does not fall under any of
the exceptions in Section 4(c)(3), lowering the protection it enjoys under the Free
Speech Clause.39 Section 4(c)(3) would be constitutional if it allowed the free
transmission of truthful and non-misleading commercial speech, even though not falling
under any of the exceptions in Section 4(c)(3). There is no legitimate government
interest in criminalizing per se the transmission in cyberspace of truthful and non-
misleading commercial speech.
Under the exception clauses of Section 4(c)(3), commercial speech may be transmitted
online only when (1) the recipient has subscribed to receive it ("opted-in"); or (2) the
commercial speech, directed to its "users, subscribers or customers," contains
announcements; or (3) the undisguised, non-misleading commercial speech has an
"opt-out" feature. The combination of these exceptions results in penalizing the
transmission online (1) of commercial speech with no "opt-out" feature to non-
subscribers, even if truthful and non-misleading; and (2) of commercial speech which
106
does not relay "announcements" to subscribers, even if truthful and non-misleading.
Penalizing the transmission of these protected categories of commercial speech is
devoid of any legitimate government interest and thus violates the Free Speech Clause.
Indeed, the free flow of truthful and non-misleading commercial speech online should
remain unhampered to assure freedom of expression of protected speech. In
cyberspace, the free flow of truthful and non-misleading commercial speech does not
obstruct the public view or degrade the aesthetics of public space in the way that
billboards and poster advertisements mar the streets, highways, parks and other public
places. True, commercial speech does not enjoy the same protection as political
speech in the hierarchy of our constitutional values. However, any regulation of truthful
and non-misleading commercial speech must still have a legitimate government
purpose. Regulating truthful and non-misleading commercial speech does not result in
"efficiency of commerce and technology" in cyberspace.
In fact, the free flow of truthful and non-misleading commercial speech should be
encouraged in cyberspace for the enlightenment of the consuming public, considering
that it is cost-free to the public and almost cost-free to merchants. Instead of using
paper to print and mail truthful and non-misleading commercial speech, online
transmission of the same commercial message will save the earth's dwindling forests
and be more economical, reducing marketing costs and bringing down consumer
prices. If any regulation of truthful and non-misleading commercial speech is to take
place, its terms are best fixed through the interplay of market forces in cyberspace. This
is evident, in fact, in the menu of options currently offered by email service providers to
deal with unwanted or spam email, allowing their account holders to customize
preferences in receiving and rejecting them. Unwanted or spam emails automatically
go to a separate spam folder where all the contents can be deleted by simply checking
the "delete all" box and clicking the delete icon. Here, the account holders are given
the freedom to read, ignore or delete the unwanted or spam email with hardly any
interference to the account holders' peaceful enjoyment of their computer device.
Unless the commercial speech transmitted online is misleading or untruthful, as
determined by courts, government should step aside and let this efficient self-regulatory
market system run its course.
Section 7 of RA 10175 Repugnant to the Double Jeopardy and Free Speech Clauses
The petitioners in G.R. No. 203335 and G.R. No. 203378 attack the constitutionality of
Section 7, which makes conviction under RA 10175 non-prejudicial to "any liability for
violation of any provision of the Revised Penal Code, as amended, or special laws," for
being repugnant to the Double Jeopardy Clause. The OSG sees no merit in the claim,
citing the rule that "a single set of acts may be prosecuted and penalized under two
laws."40
The OSG misapprehends the import of Section 7. Although RA 10175 defines and
punishes a number of offenses to which Section 7 applies, its application to the offense
of online libel under Section 4(c)(4) of RA 10175, in relation to the offense of libel under
Article 353 of the Code, suffices to illustrate its unconstitutionality for trenching the
Double Jeopardy and Free Speech Clauses.

RA 10175 does not define libel. Its definition is found in the Code (Article 353) which
provides:
Definition of libel - A libel is a public and malicious imputation of a crime or of a vice or
defect, real or imaginary, or any act, omission, condition, status or circumstance tending
to cause the dishonor, discredit, or contempt of a natural or juridical person, or to
blacken the memory of one who is dead.
As defined, the medium through which libel is committed is not an element of such
offense. What is required of the prosecution are proof of the (1) statement of a
discreditable act or condition of another person; (2) publication of the charge; (3)
identity of the person defamed; and (4) existence of malice.41 The irrelevance of the
medium of libel in the definition of the crime is evident in Article 355 of the Code which
punishes libel with a uniform penalty42 whether it is committed "by means of writing,
printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition,
cinematographic exhibition, or any similar means."
RA 10175 adopts the Code's definition of libel by describing online libel under Section
4(c)(4) as "[t]he unlawful or prohibited acts as defined in Article 355 of the Revised
Penal Code, as amended, committed through a computer system or any other similar
means which may be devised in the future." By adopting the Code's definition of libel,
Section 4(c)(4) also adopts the elements of libel as defined in Article 353 in relation to
Article 355 of the Code. Section 4(c)(4) merely adds the media of "computer system or
any other similar means which may be devised in the future" to the list of media
enumerated in Article 355. This is understandable because at the time the Code was
enacted in 1930, the Internet was non-existent. In the words of the OSG itself (in
contradiction to its position on the constitutionality of Section 7), Congress enacted
Section 4(c)(4) not to create a new crime, but merely to "ma[ke] express an avenue
already covered by the term 'similar means' under Article 355, to keep up with the
times":
Online libel is not a new crime. Online libel is a crime punishable under x x x Article
353, in relation to Article 355 of the Revised Penal Code. Section 4(c)(4) just made
express an avenue already covered by the term "similar means" under Article 355, to
keep up with the times.43 (Emphasis supplied)
For purposes of double jeopardy analysis, therefore, Section 4(c)(4) of RA 10175
and Article 353 in relation to Article 355 of the Code define and penalize the same
offense of libel. Under the Double Jeopardy Clause, conviction or acquittal under
either Section 4(c)(4) or Article 353 in relation to Article 355 constitutes a bar to another
prosecution for the same offense of libel.
The case of petitioners Ellen Tordesillas, Harry Roque and Romel Bagares in G.R. No.
203378 provides a perfect example for applying the rules on print and online libel in
relation to the Double Jeopardy Clause. These petitioners write columns which are
published online and in print by national and local papers.44 They allege, and
respondents do not disprove, that "their columns see publication in both print and online
versions of the papers they write for."45 Should these petitioners write columns for
which they are prosecuted and found liable under Section 4(c)(4) of RA 10175 for online
107
libel the Double Jeopardy Clause bars their second prosecution for print libel for the
same columns upon which their first conviction rested, under Article 353 in relation to
Article 355 of the Code. Such constitutional guarantee shields them from being twice
put in jeopardy of punishment for the same offense of libel.
The foregoing analysis applies to all other offenses defined and penalized under the
Code or special laws which (1) are penalized as the same offense under RA 10175
committed through the use of a computer system; or (2) are considered aggravated
offenses under RA 10175. Conviction or acquittal under the Code or such special laws
constitutes a bar to the prosecution for the commission of any of the offenses defined
under RA 10175. Thus, for instance, conviction or acquittal under Section 4(a) of RA
9775 (use of a child to create child pornography 46) constitutes a bar to the prosecution
for violation of Section 4(c)(2) of RA 19175 (online child pornography) and vice versa.
This is because the offense of child pornography under RA 9775 is the same offense
of child pornography under RA 10175 committed through the use of a computer system.
Section 7 of RA 10175 also offends the Free Speech Clause by assuring multiple
prosecutions of those who fall under the ambit of Section 4(c)(4). The specter of
multiple trials and sentencing, even after conviction under RA 10175, creates a
significant and not merely incidental chill on online speech. Section 7 stifles speech in
much the same way that excessive prison terms for libel, subpoenas to identify
anonymous online users or high costs of libel litigation do. It has the effect of making
Internet users "steer far wide of the unlawful zone"47 by practicing self-censorship,
putting to naught the democratic and inclusive culture of the Internet where anyone can
be a publisher and everyone can weigh policies and events from anywhere in the world
in real time. Although Section 7, as applied to Section 4(c)(4), purports to strengthen
the protection to private reputation that libel affords, its sweeping ambit deters not only
the online publication of defamatory speech against private individuals but also the
online dissemination of scathing, false, and defamatory statements against public
officials and public figures which, under the actual malice rule, are conditionally
protected. This chilling effect on online communication stifles robust and uninhibited
debate on public issues, the constitutional value lying at the core of the guarantees of
free speech, free expression and free press.
Section 12 of RA 10175 Violative of the Search and Seizure and Privacy of
Communication Clauses
Section 12 of RA 10175 grants authority to the government to record in bulk and in real
time electronic data transmitted by means of a computer system, 48 such as through
mobile phones and Internet-linked devices. The extent of the power granted depends
on the type of electronic data sought to be recorded, that is, whether traffic data or non-
traffic data ("all other data").
For traffic data, which RA 10175 defines as "the communication’s origin, destination,
route, time, date, size, duration, or type of underlying service," the government, for "due
cause" can record them on its own or with the aid of service providers, without need of
a court order. For non-traffic data collection, a "court warrant" is required based on
reasonable grounds that the data to be collected is "essential" for the prosecution or
 108

prevention of violation of any of the crimes defined under RA 10175. The full text of
Section 12 provides:
Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause,
shall be authorized to collect or record by technical or electronic means traffic data in
real-time associated with specified communications transmitted by means of a
computer system.
which applies to all searches of communication and correspondence not falling under
recognized exceptions to the Search and Seizure Clause, such as the search of non-
legal communication sent and received by detainees49 search of electronic data stored
in government issued computers,50 or security searches at airports.51
Scope of Information Subject of Real-Time Extrajudicial Collection and Analysis by
Government

Traffic data refer only to the communication’s origin, destination, route, time, date, size, Section 12’s definition of traffic data – the communication’s origin, destination, route,
duration, or type of underlying service, but not content, nor identities. time, date, size, duration, or type of underlying service – encompasses the following
information for mobile phone, Internet and email communications:
All other data to be collected or seized or disclosed will require a court warrant.
Mobile phone:
Service providers are required to cooperate and assist law enforcement authorities in
the collection or recording of the above-stated information. telephone number of the caller
telephone number of the person called
The court warrant required under this section shall only be issued or granted upon location of the caller
written application and the examination under oath or affirmation of the applicant and location of the person called
the witnesses he may produce and the showing: (1) that there are reasonable grounds the time, date, and duration of the call
to believe that any of the crimes enumerated hereinabove has been committed, or is (For messages sent via the Short Messaging System, the same
being committed, or is about to be committed: (2) that there are reasonable grounds to information are available save for the duration of the communication.)
believe that evidence that will be obtained is essential to the conviction of any person
for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are Email:
no other means readily available for obtaining such evidence.
date
Section 12 of RA 10175 is the statutory basis for intelligence agencies of the time
government to undertake warrantless electronic data surveillance and collection in bulk source
to investigate and prosecute violations of RA 10175. destination and size
attachment/s
Section 12 fails constitutional scrutiny. Collection in bulk of private and personal country of sender and recipient
electronic data transmitted through telephone and the Internet allows the government city of sender and recipient
to create profiles of the surveilled individuals’ close social associations, personal
activities and habits, political and religious interests, and lifestyle choices expressed Internet:
through these media. The intrusion into their private lives is as extensive and thorough
as if their houses, papers and effects are physically searched. As such, collection in search keywords
bulk of such electronic data rises to the level of a search and seizure within the public IP (Internet Protocol) of user
meaning of the Search and Seizure Clause, triggering the requirement for a geolocation of user
judicial warrant grounded on probable cause. By vesting the government with client’s name (for smartphone, PC or desktop)
authority to undertake such highly intrusive search and collection in bulk of personal browser
digital data without benefit of a judicial warrant, Section 12 is unquestionably repugnant OS (Operating System)
to the guarantee under the Search and Seizure Clause against warrantless searches URL (Universal Source Locator)
and seizures. date and time of use

Further, Section 12 allows the use of advanced technology to impermissibly narrow the
right to privacy of communication guaranteed under the Privacy of Communications
Clause. Although such clause exempts from its coverage searches undertaken "when
public safety or order requires otherwise, as prescribed by law," Section 12 is not a
"law" within the contemplation of such exception because it does not advance the
interest of "public safety or order." Nor does it comply with the warrant requirement
Unlike personal information which form part of the public domain (hence, readily
accessible) because their owners have either disclosed them to the government as a
result of employment in that sector or are part of transactions made with regulatory
agencies (such as the land transportation, passport and taxing agencies), the
information indicated above are personal and private. They reveal data on the social
associations, personal activities and habits, political and religious interests, and lifestyle
choices of individuals that are not freely accessible to the public. Because Section 12

contains no limitation on the quantity of traffic data the government can collect, state
intelligence agencies are free to accumulate and analyze as much data as they want,
anytime they want them.
Randomly considered, traffic data do not reveal much about a person’s relationships,
habits, interests or lifestyle expressed online or through phone. After all, they are mere
bits of electronic footprint tracking a person’s electronic communicative or expressive
activities. When compiled in massive amounts, however, traffic data, analyzed over
time, allows the state to create a virtual profile of the surveilled individuals, revealing
their close relationships, mental habits, political and religious interests, as well as
lifestyle choices – as detailed as if the government had access to the content of their
letters or conversations. Or put differently –
When [traffic] information x x x is combined, it can identify all of our surreptitious
connections with the world, providing powerful evidence of our activities and beliefs.
[L]aw enforcement can construct a "complete mosaic of a person's characteristics"
through this type of x x x surveillance.Under these circumstances, the information the
government accumulates is more akin to content than mere cataloguing.52 (Emphasis
supplied)
The profiling of individuals is not hampered merely because the bulk data relate to
telephone communication. As pointed out in a Report, dated 12 December 2013, by a
government panel of experts53 which reviewed the U.S. government’s electronic
surveillance policy (Panel’s Report) –
[t]he record of every telephone call an individual makes or receives over the course of
several years can reveal an enormous amount about that individual’s private life. x x x.
[T]elephone calling data can reveal x x x an individual’s "familial, political, professional,
religious, and sexual associations." It can reveal calls "to the psychiatrist, the plastic
surgeon, x x x the AIDS treatment center, the strip club, the criminal defense attorney,
the by-the-hour-motel, the union meeting, the mosque, synagogue or church, the gay
bar, and on and on."54
This virtual profiling is possible not only because of software55 which sifts through
telephone and Internet data to locate common patterns but also because, for Internet
"Universal Resource Locators x x x, they are [both] addresses (e.g.,
www.amazon.com/kidneydisease) and [links] x x x allowing access to the website and
thus permit government to ascertain what the user has viewed." 56 The identities of
users of mobile phone numbers can easily be found through Internet search or in public
and private mobile phone directories, calling cards, letterheads and similar documents.
Bulk Data Surveillance Rises to the
Level of a "Search and Seizure" Within
the Meaning of the Search and Seizure
Clause
There is no quarrel that not all state access to personal information amount to a
"search" within the contemplation of the Search and Seizure Clause. Government
collection of data readily available (or exposed) to the public, even when obtained using
109
devices facilitating access to the information, does not implicate constitutional concerns
of privacy infringement.57 It is when government, to obtain private information, intrudes
into domains over which an individual holds legitimate privacy expectation that a
"search" takes place within the meaning of the Search and Seizure Clause.58 To
determine whether the collection of bulk traffic data of telephone and online
communication amounts to a constitutional search, the relevant inquiry, therefore, is
whether individuals using such media hold legitimate expectation that the traffic data
they generate will remain private.
Unlike this Court, the U.S. Supreme Court had weighed such question and answered
in the negative. In Smith v. Maryland,59 promulgated in 1979, that court was confronted
with the issue whether the warrantless monitoring of telephone numbers dialed from a
private home and stored by the telephone company, amounted to a search within the
meaning of the Fourth Amendment. The U.S. High Court’s analysis centered on the
reasoning that a caller has no legitimate privacy expectation over telephone numbers
stored with telephone companies because he "assumed the risk that the company
would reveal to police the numbers he dialed."60
Several reasons undercut not only the persuasive worth of Smith in this jurisdiction but
also the cogency of its holding. First, all three modern Philippine Constitutions, unlike
the U.S. Constitution, explicitly guarantee "privacy of communications and
correspondence."61 This is a constitutional recognition, no less, of the legitimacy of the
expectation of surveilled individuals that their communication and correspondence will
remain private and can be searched by the government only upon compliance with the
warrant requirement under the Search and Seizure Clause. Although such guarantee
readily protects the content of private communication and correspondence, the
guarantee also protects traffic data collected in bulk which enables the government to
construct profiles of individuals’ close social associations, personal activities and
habits, political and religious interests, and lifestyle choices, enabling intrusion into their
lives as extensively as if the government was physically searching their "houses,
papers and effects."62
Second, at the time the U.S. Supreme Court decided Smith in 1979, there were no
cellular phones, no Internet and no emails as we know and use them today. Over the
last 30 years, technological innovations in mass media and electronic surveillance have
radically transformed the way people communicate with each other and government
surveils individuals. These radical changes undergirded the refusal of the District Court
of Columbia to follow Smith in its ruling promulgated last 16 December 2013, striking
down portions of the spying program of the U.S. National Security Agency (NSA).63 The
District Court observed:
[T]he relationship between the police and the phone company in Smith is nothing
compared to the relationship that has apparently evolved over the last seven years
between the Government and telecom companies. x x x x In Smith, the Court
considered a one-time, targeted request for data regarding an individual suspect in a
criminal investigation, x x x which in no way resembles the daily, all-encompassing,
indiscriminate dump of phone metadata that the (NSA) now receives as part of its Bulk
Telephony Metadata Program. It's one thing to say that people expect phone

companies to occasionally provide information to law enforcement; it is quite another
to suggest that our citizens expect all phone companies to operate what is effectively a
joint intelligence-gathering operation with the Government. x x x.64 (Emphasis supplied)
Third, individuals using the telephone and Internet do not freely disclose private
information to the service providers and the latter do not store such information in trust
for the government. Telephone and Internet users divulge private information to service
providers as a matter of necessity to access the telephone and Internet services, and
the service providers store such information (within certain periods) also as a matter of
necessity to enable them to operate their businesses. In what can only be described as
an outright rejection of Smith’s analysis, the Panel’s Report, in arriving at a similar
conclusion, states:65
In modern society, individuals, for practical reasons, have to use banks, credit cards,
e-mail, telephones, the Internet, medical services, and the like. Their decision to reveal
otherwise private information to such third parties does not reflect a lack of concern for
the privacy of the information, but a necessary accommodation to the realities of
modern life. What they want — and reasonably expect — is both the ability to use such
services and the right to maintain their privacy when they do so. 66 (Emphasis supplied)
Clearly then, bulk data surveillance and collection is a "search and seizure" within the
meaning of the Search and Seizure Clause not only because it enables maximum
intrusion into the private lives of the surveilled individuals but also because such
individuals do not forfeit their privacy expectations over the traffic data they generate
by transacting with service providers. Bulk data and content-based surveillance and
collection are functionally identical in their access to personal and private information.
It follows that the distinction Section 12 of RA 10175 draws between content-based and
bulk traffic data surveillance and collection, requiring judicial warrant for the former and
a mere administrative "due cause" for the latter, is unconstitutional. As "searches and
seizures" within the contemplation of Search and Seizure Clause, bulk data and
content-based surveillance and collection are uniformly subject to the constitutional
requirement of a judicial warrant grounded on probable cause.
Section 12 of RA 10175
Impermissibly Narrows the
Right to Privacy of Communication
and Correspondence
The grant under Section 12 of authority to the government to undertake bulk data
surveillance and collection without benefit of a judicial warrant enables the government
to access private and personal details on the surveilled individuals’ close social
associations, personal activities and habits, political and religious interests, and lifestyle
choices. This impermissibly narrows the sphere of privacy afforded by the Privacy of
Communication Clause. It opens a backdoor for government to pry into their private
lives as if it obtained access to their phones, computers, letters, books, and other
papers and effects. Since Section 12 does not require a court warrant for government
to undertake such surveillance and data collection, law enforcement agents can access
110
these information anytime they want to, for whatever purpose they may deem as
amounting to "due cause."
The erosion of the right to privacy of communication that Section 12 sanctions is
pernicious because the telephone and Internet are indispensable tools for
communication and research in this millennium. People use the telephone and go
online to perform tasks, run businesses, close transactions, read the news, search for
information, communicate with friends, relatives and business contacts, and in general
go about their daily lives in the most efficient and convenient manner. Section 12 forces
individuals to make the difficult choice of preserving their communicative privacy but
reverting to non-electronic media, on the one hand, or availing of electronic media while
surrendering their privacy, on the other hand. These choices are inconsistent with the
Constitution’s guarantee to privacy of communication.
Section 12 of RA 10175 not a "law"
Within the Contemplation of the
Exception Clause in Section 3(1),
Article III of the 1987 Constitution
Undoubtedly, the protection afforded by the Constitution under the Privacy of
Communication Clause is not absolute. It exempts from the guarantee intrusions "upon
lawful order of the court, or when public safety or order requires otherwise, as
prescribed by law." Does Section 12 of RA 10175 constitute a "law" within the
contemplation of the Privacy of Communication Clause?
When the members of the 1971 Constitutional Convention deliberated on Article III,
Section 4(1) of the 1973 Constitution, the counterpart provision of Article III, Section
3(1) of the 1987 Constitution, the phrase "public safety or order" was understood by the
convention members to encompass "the security of human lives, liberty and property
against the activities of invaders, insurrectionists and rebels."67 This narrow
understanding of the public safety exception to the guarantee of communicative privacy
is consistent with Congress’ own interpretation of the same exception as provided in
Article III, Section 1(5) of the 1935 Constitution. Thus, when Congress passed the Anti-
Wiretapping Act68 (enacted in 1965), it exempted from the ban on wiretapping
"cases involving the crimes of treason, espionage, provoking war and disloyalty in case
of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit
rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to
sedition, kidnapping as defined by the Revised Penal Code, and violations of
Commonwealth Act No. 616, punishing espionage and other offenses against national
security" (Section 3). In these specific and limited cases where wiretapping has been
allowed, a court warrant is required before the government can record the
conversations of individuals.
Under RA 10175, the categories of crimes defined and penalized relate to (1) offenses
against the confidentiality, integrity and availability of computer data and systems
(Section 4[a]); (2) computer-related offenses (Section 4[b]); (3) content-related offenses
(Section 4[c]); and (4) other offenses (Section 5). None of these categories of crimes
are limited to public safety or public order interests (akin to the crimes exempted from

the coverage of the Anti-Wiretapping Law). They relate to crimes committed in the
cyberspace which have no stated public safety or even national security dimensions.
Such fact takes Section 12 outside of the ambit of the Privacy of Communication
Clause.
In any event, even assuming that Section 12 of RA 10175 is such a "law," such "law"
can never negate the constitutional requirement under the Search and Seizure Clause
that when the intrusion into the privacy of communication and correspondence rises to
the level of a search and seizure of personal effects, then a warrant issued by a judge
becomes mandatory for such search and seizure. Fully cognizant of this fact, Congress,
in enacting exceptions to the ban on wiretapping under the Anti-Wiretapping Act, made
sure that law enforcement authorities obtain a warrant from a court based on probable
cause to undertake wiretapping. Section 3 of the Anti-Wiretapping Act provides:
Nothing contained in this Act, however, shall render it unlawful or punishable for any
peace officer, who is authorized by a written order of the Court, to execute any of the
acts declared to be unlawful in the two preceding Sections in cases involving the crimes
of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in
the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to
rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as
defined by the Revised Penal Code, and violations of Commonwealth Act No. 616,
punishing espionage and other offenses against national security:
Provided, That such written order shall only be issued or granted upon written
application and the examination under oath or affirmation of the applicant and the
witnesses he may produce and a showing: (1) that there are reasonable grounds to
believe that any of the crimes enumerated hereinabove has been committed or is being
committed or is about to be committed: Provided, however, That in cases involving the
offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion,
sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall be
granted only upon prior proof that a rebellion or acts of sedition, as the case may be,
have actually been or are being committed; (2) that there are reasonable grounds to
believe that evidence will be obtained essential to the conviction of any person for, or
to the solution of, or to the prevention of, any such crimes; and (3) that there are no
other means readily available for obtaining such evidence. (Emphasis supplied)
Section 12 of RA 10175 More
Expansive than U.S. Federal Electronic
Surveillance Laws
Under U.S. federal law, authorities are required to obtain a court order to install "a pen
register or trap and trace device" to record in real time or decode electronic
communications.69 Although initially referring to technology to record telephone
numbers only, the term "pen register or trap and trace device" was enlarged by the
Patriot Act to cover devices which record "dialing, routing, addressing, and signaling
information utilized in the processing and transmitting of wire or electronic
communications," including Internet traffic data.70 The court of competent jurisdiction
may issue ex parte the order for the installation of the device "if [it] finds that the State
111
law enforcement or investigative officer has certified to the court that the information
likely to be obtained by such installation and use is relevant to an ongoing criminal
investigation."71
For electronic surveillance relating to foreign intelligence, U.S. federal law requires the
government to obtain ex parte orders from the Foreign Intelligence Surveillance Court
(FISC)72 upon showing that "the target of surveillance was a foreign power or an agent
of a foreign power."73 Under an amendment introduced by the Patriot Act, the
government was further authorized to obtain an ex parte order from the FISC for the
release by third parties of "tangible things" such as books, papers, records, documents
and other items "upon showing that the tangible things sought are relevant to an
authorized investigation x x x to obtain foreign intelligence information not concerning
a United States person or to protect against international terrorism or clandestine
intelligence activities."74 The investigation is further subjected to administrative
oversight by the Attorney General whose prior authorization to undertake such
investigation is required.75
In contrast, Section 12 of RA 10175 authorizes law enforcement officials "to collect or
record by technical or electronic means traffic data in real-time" if, in their judgment,
such is for "due cause."76 Unlike in the Patriot Act, there is no need for a court order to
collect traffic data. RA 10175 does not provide a definition of "due cause" although the
OSG suggests that it is synonymous with "just reason or motive" or "adherence to a
lawful procedure."77 The presence of "due cause" is to be determined solely by law
enforcers.
In comparing the U.S. and Philippine law, what is immediately apparent is that the U.S.
federal law requires judicial oversight for bulk electronic data collection and analysis
while Philippine law leaves such process to the exclusive discretion of law enforcement
officials. The absence of judicial participation under Philippine law precludes
independent neutral assessment by a court on the necessity of the surveillance and
collection of data.78 Because the executive’s assessment of such necessity is
unilateral, Philippine intelligence officials can give the standard of "due cause" in
Section 12 of RA 10175 as broad or as narrow an interpretation as they want.
The world by now is aware of the fallout from the spying scandal in the United States
arising from the disclosure by one of its intelligence computer specialists that the U.S.
government embarked on bulk data mining, in real time or otherwise, of Internet and
telephone communication not only of its citizens but also of foreigners, including heads
of governments of 35 countries.79 The District Court’s observation in Klayman on the
bulk data collection and mining undertaken by the NSA of telephone traffic data is
instructive:
I cannot imagine a more "indiscriminate" and "arbitrary invasion" than this systematic
and high-tech collection and retention of personal data on virtually every single citizen
for purposes of querying and analyzing it without prior judicial approval. Surely, such a
program infringes on "that degree of privacy" that the Founders enshrined in the Fourth
Amendment. Indeed, I have little doubt that the author of our Constitution, James

Madison, who cautioned us to beware "the abridgment of freedom of the people by
gradual and silent encroachments by those in power," would be aghast. 80
Equally important was that court’s finding on the efficacy of the bulk surveillance
program of the U.S. government: "the Government does not cite a single instance in
which analysis of the NSA's bulk metadata collection actually stopped an imminent
attack, or otherwise aided the Government in achieving any objective that was time-
sensitive in nature."81
To stem the ensuing backlash, legislative and executive leaders of the U.S. government
committed to re-writing current legislation to curb the power of its surveillance
agencies.82 The pressure for reforms increased with the recent release of an
unprecedented statement by the eight largest Internet service providers in America
calling on the U.S. government to "limit surveillance to specific, known users for lawful
purposes, and x x x not undertake bulk data collection of Internet
communications."83 Along the same lines, the Panel’s Report recommended, among
others that, "the government should not be permitted to collect and store all mass,
undigested, non-public personal information about individuals to enable future queries
and data-mining for foreign intelligence purposes" 84 as such poses a threat to privacy
rights, individual liberty and public trust. The Panel’s Report elaborated:
Because international terrorists inevitably leave footprints when they recruit, train,
finance, and plan their operations, government acquisition and analysis of such
personal information might provide useful clues about their transactions, movements,
behavior, identities and plans. It might, in other words, help the government find the
proverbial needles in the haystack. But because such information overwhelmingly
concerns the behavior of ordinary, law-abiding individuals, there is a substantial risk of
serious invasions of privacy.
As a report of the National Academy of Sciences (NAS) has observed, the mass
collection of such personal information by the government would raise serious
"concerns about the misuse and abuse of data, about the accuracy of the data and the
manner in which the data are aggregated, and about the possibility that the government
could, through its collection and analysis of data, inappropriately influence individuals’
conduct."
According to the NAS report, "data and communication streams" are ubiquitous:
[They] concern financial transactions, medical records, travel, communications, legal
proceedings, consumer preferences, Web searches, and, increasingly, behavior and
biological information. This is the essence of the information age — x x x everyone
leaves personal digital tracks in these systems whenever he or she makes a purchase,
takes a trip, uses a bank account, makes a phone call, walks past a security camera,
obtains a prescription, sends or receives a package, files income tax forms, applies for
a loan, e-mails a friend, sends a fax, rents a video, or engages in just about any other
activity x x x x Gathering and analyzing [such data] can play major roles in the
prevention, detection, and mitigation of terrorist attacks x x x x [But even] under the
pressures of threats as serious as terrorism, the privacy rights and civil liberties that are
cherished core values of our nation must not be destroyed x x x x One x x x concern is
112
that law-abiding citizens who come to believe that their behavior is watched too closely
by government agencies x x x may be unduly inhibited from participating in the
democratic process, may be inhibited from contributing fully to the social and cultural
life of their communities, and may even alter their purely private and perfectly legal
behavior for fear that discovery of intimate details of their lives will be revealed and
used against them in some manner.85 (Emphasis supplied)
In lieu of data collection in bulk and data mining, the Panel’s Report recommended that
such data be held by "private providers or by a private third party,"86 accessible by
American intelligence officials only by order of the FISC, upon showing that the
requested information is "relevant to an authorized investigation intended to protect
‘against international terrorism or clandestine intelligence activities,’" 87 a more stringent
standard than what is required under current federal law.
Finding merit in the core of the Panel’s Report’s proposal, President Obama ordered a
two-step "transition away from the existing program" of telephone data collection in bulk
and analysis, first, by increasing the threshold for querying the data and requiring
judicial oversight to do so (save in emergency cases), and second, by relinquishing
government’s possession of the bulk data:
[I]’ve ordered that the transition away from the existing program will proceed in two
steps
Effective immediately, we will only pursue phone calls that are two steps removed from
a number associated with a terrorist organization, instead of the current three, and I
have directed the attorney general to work with the Foreign Intelligence Surveillance
Court so that during this transition period, the database can be queried only after a
judicial finding or in the case of a true emergency.
Next, step two: I have instructed the intelligence community and the attorney general
to use this transition period to develop options for a new approach that can match the
capabilities and fill the gaps that the Section 215 program was designed to address,
without the government holding this metadata itself. x x x.88 (Emphasis supplied)
The U.S. spying fiasco offers a cautionary tale on the real danger to privacy of
communication caused by the grant of broad powers to the state to place anyone under
electronic surveillance without or with minimal judicial oversight. If judicial intervention
under U.S. law for real time surveillance of electronic communication did not rein in
U.S. spies, the total absence of such intervention under Section 12 of RA 10175 is a
blanket legislative authorization for data surveillance and collection in bulk to take place
in this country.
Section 12 Tilts the Balance in Favor
of Broad State Surveillance Over
Privacy of Communications Data
As large parts of the world become increasingly connected, with communications
carried on wired or wirelessly and stored electronically, the need to balance the state’s
national security and public safety interest, on the one hand, with the protection of the
 113

privacy of communication, on the other hand, has never been more acute. Allowing the
state to undertake extrajudicial, unilateral surveillance and collection of electronic data
in bulk which, in the aggregate, is just as revealing of a person’s mind as the content of
his communication, impermissibly tilts the balance in favor of state surveillance at the
expense of communicative and expressive privacy. More than an imbalance in the
treatment of equally important societal values, however, such government policy gives
rise to fundamental questions on the place of human dignity in civilized society. This
concern was succinctly articulated by writers from all over the world protesting the
policy of mass surveillance and collection of data in bulk:
With a few clicks of the mouse, the state can access your mobile device, your email,
your social networking and Internet searches.1âwphi1 It can follow your political
leanings and activities and, in partnership with Internet corporations, it collects and
stores your data.
system of prior restraint on all categories of speech, Section 19 is glaringly
unconstitutional.
ACCORDINGLY, I vote to DECLARE UNCONSTITUTIONAL Article 354 of the Revised
Penal Code, insofar as it applies to public officers and public figures, and the following
provisions of Republic Act No. 10175, namely: Section 4( c )(1 ), Section 4( c )(3-),
Section 7, Section 12, and Section 19, for being violative of Section 2, Section 3(1)
Section 4, and Section 21, Article III of the Constitution.
ANTONIO T. CARPIO
Associate Justice

The basic pillar of democracy is the inviolable integrity of the individual. x x x [A]ll
humans have a right to remain unobserved and unmolested. x x x.

A person under surveillance is no longer free; a society under surveillance is no longer

a democracy. [O]ur democratic rights must apply in virtual as in real space.89

The Government must maintain fidelity to the 1987 Constitution’s guarantee against
warrantless searches and seizures, as well as the guarantee of privacy of
communication and correspondence. Thus, the Government, consistent with its
national security needs, may enact legislation allowing surveillance and data collection
in bulk only if based on individualized suspicion and subject to meaningful judicial
oversight.

Section 19 of RA 10175 Violative of the

Free Speech, Free Press, Privacy of Communication
and Search and Seizure Clauses

The OSG concedes the unconstitutionality of Section 19 which authorizes the

Department of Justice (DOJ) to "issue an order to restrict or block access" to computer
data, that is, "any representation of facts, information, or concepts in a form suitable for
processing in a computer system,"90 whenever the DOJ finds such data prima facie
violative of RA 10175. The OSG's stance on this "take down" clause is unavoidable.
Section 19 allows the government to search without warrant the content of private
electronic data and administratively censor all categories of speech. Although
censorship or prior restraint is permitted on speech which is pornographic,
commercially misleading or dangerous to national security, 91 only pornographic speech
is covered by RA 10175 (under Section 4(c)(2) on online child pornography). Moreover,
a court order is required to censor or effect prior restraint on protected speech. 92 By
allowing the government to electronically search without warrant and administratively
censor all categories of speech, specifically speech which is non-pornographic, not
commercially misleading and not a danger to national security, which cannot be
subjected to censorship or prior restraint, Section 19 is unquestionably repugnant to
the guarantees of free speech, free expression and free press and the rights to privacy
of communication and against unreasonable searches and seizures. Indeed, as a

PEOPLE VS. REYNALDO SANTOS, JR., MARIA ANGELITA RESSA AND
RAPPLER, RE ONLINE LIBEL
Before this Court is an Information charging accused REYNALDO SANTOS,
JR. and MARIA ANGELITA RESSA for Violation of Section 4 (c)(4) of Republic Act
No. 10175or the Cybercrime Prevention Act of 2012, which alleges:
“That on or about 19 February 2014, the above named accused, did then and there
willfully, unlawfully and knowingly re-publish an article entitled “CJ Using SUVs of
Controversial Businessman” quoted hereunder:
“Shady past?
At the time we were tracing the registered owner of the Chevrolet in early 2011, we got
hold of an intelligence report that detailed Keng’s past. Prepared in 2002, it described
Keng as a “naturalized Filipino citizen” whose exact birthdate is unknown. In the report,
he was also identified as bearing the alias “Willy,” using a surname also spelled as
“Kheng.”
The report stated that Keng had been under surveillance by the National Security
Council for alleged involvement in illegal activities, namely “human trafficking and drug
smuggling.” He is supposedly close to lawmakers and had contacts with the US
embassy at the time.
The document also said Keng was involved in a murder case for which he was “never
jailed.” It could be referring to the death of Manila Councilor Chika Go in 2002 where
Keng had been identified as a mastermind. Go was also the architect of Keng’s Reina
Regente condominium residence in Binondo, Manila.
According to a 2002 Philippine Star report, Keng was also accused of smuggling fake
cigarettes and granting special investors residence visas to Chinese nationals for a fee.
Keng has denied his involvement in this illegal transaction, saying it’s easy to get visas
to the Philippines.”
in the website of Rappler, Inc. with malicious intent and evil motive of attacking, injuring
and impeaching the reputation of one Wilfredo D. Keng, with residence at Carriedo
Street, Manila, within the jurisdiction of this Honorable Court, as a businessman, and
as a private citizen, thereby exposing him to public hatred, contempt, ridicule, discredit
and dishonor.
CONTRARY TO LAW.”
On 14 May 2019, both Accused Reynaldo Santos, Jr. and Maria Angelita Ressa were
arraigned, assisted by their counsel de parte, Atty. Theodore O. Te of the Free Legal
Assistance Group. Both accused refused to enter a plea. Thus, the Court entered
separate pleas of not guilty for each of the accused.
On even date, the case was referred to the Philippine Mediation Center for appropriate
mediation proceedings. The same resulted to unsuccessful mediation as per Mediator’s
Report dated 4 June 2019.
114
On 21 June 2019, pre-trial ensued wherein the prosecution and the defense stipulated
on the following:
1. The identity of both accused as the persons named in the Criminal Information;
2. Territorial jurisdiction of the Court;
3. That accused Maria Angelita Ressa is the Chief Executive Officer and Executive
Editor of Rappler Inc.;
4. That Accused Reynaldo Santos, Jr. is a Researcher/Reporter of Rappler, Inc. from
May 29, 2012 until his separation on mid-August 2016;
5. That the Article specified in the Information was published on the website of Rappler,
Inc. on May 29, 2012;
6. That the said Article was updated on February 9, 2014;
7. That the said Article is still available in the website of Rappler,
8. That Rappler, Inc. is a juridical entity registered with Securities and Exchange
Commission;
9. That the Criminal Information and the Resolution issued by the Department of Justice
dated January 10, 2019 do not bear any amount on pecuniary damage;
10. That as appearing on the last paragraph of page 7 of the Resolution dated January
10, 2019, said Resolution recommended the filing of charges against both accused in
this case, but dismissed the charges against seven (7) others;
11.The Complaint which was made through referral by the National Bureau of
Investigation on March 1, 2018 was received by the DOJ Prosecution Docket Section
on March 2, 2018.
Thereafter, trial proceeded.
EVIDENCE FOR THE PROSECUTION
The prosecution presented Marcelino Malonzo, Senior Agent Christopher M. Paz, Ma.
Florina G. Cureg, Atty. Leonard De Vera, Katerina Francisco and the private
complainant Wilfredo Keng as its witnesses.
When MARCELINO MALONZO was presented, both the prosecution and the defense
stipulated that: (1) the witness read the article subject matter of the present criminal
information; and (2) that he executed and submitted the affidavit before the Department
of Justice during the preliminary investigation of the case.
Malonzo is a retired pensioner. Prior to his retirement in 1997, he worked as a bank
manager with Security Bank and Bank of Commerce. He joined the Rural Bank of
Norzagaray, thereafter, until he reached the age of sixty (60).

Private complainant, Wilfredo Keng was known to him personally because the former
was his client at the Bank of Commerce, Port Area Branch in Manila for the year 1994-
1997.
Malonzo testified that he personally read and perused the subject article and he
immediately surmised that, as the title clearly suggests, the late Chief Justice Corona
had used a vehicle belonging to a certain Wilfredo Keng. Also, he gathered that based
on what is written in the article, this Wilfredo Keng had been accused of smuggling fake
cigarettes and was alleged to have been involved in human trafficking and drug
smuggling. He stated that he immediately made prejudices against Wilfredo Keng
because of the Rappler article.
He testified that he read the subject article on January 2018 at lunch time. Then he
read it again on 4 July 2018 when he executed his Affidavit of Reader, using his
daughter’s laptop. He personally prepared the said affidavit but the same was encoded
by his daughter.
When Malonzo saw a news item on television particularly TV Patrol in ABS-CBN, that
prompted him to read Rappler. When he heard the name Mr. Keng, he recalled a client
of his from 1997. He tried to reach him but Keng was not available. He called up Patty
Keng, private complainant’s daughter, because he wanted to confirm whether the
person in the news referred to as Willy Keng is his father. Patty Keng confirmed that it
was in fact his father.
The witness further testified that he had another conversation with Patty Keng when
she called him and asked if he can be a witness, to issue an affidavit stating that he
have read the Rappler article. He consented to testify. He met Atty. Steve Cabales,
who introduced himself as the lawyer of Keng at his office in Alabang. Then, he was
accompanied by the said lawyer to the Department of Justice on 5 July 2018 where he
took an oath before a prosecutor, whose name he cannot recall.
The prosecution and the defense entered into stipulation on the supposed testimony of
SA CHRISTOPHER M. PAZ, Chief, Digital Forensics Laboratory of the National Bureau
of Investigations that: (1) the witness conducted a forensic examination on the article
subject matter of the information; and (2) he confirmed that the report came from the
Rappler’s website.
The prosecution next presented MA. FLORINA G. CUREG of the Philippine Drug
Enforcement Agency (PDEA). She is an Information Systems Analysts in the
Intelligence and Investigation Services of PDEA. She testified that she knows Director
Randy R. Pedroso because he used to be their director prior to his transfer to Region
10, Regional Office. She worked with him for almost about five (5) years.
She identified two letters issued by PDEA, one is dated 15 August 2016 signed by
Director Randy G. Pedrozo and the other one is dated 20 May 2019 signed by Director
General Aaron N. Aquino.
115
She testified that she was the one who drafted the May 20, 2019 letter, however she
does not know personally the person referred to therein and in the August 15, 2016
letter.
She further testified that the verification she referred to in the letter dated 20 May 2019
consisted simply of checking PDEA’s system and the documents available. Their
system consists of all the information that they gathered from their counterparts, i.e.,
AFP, PNP, NICA and from other law enforcement agencies in general and some of the
data are from the information that were gathered by their drug enforcement officers or
intelligence officers nationwide.
The prosecution next presented ATTY. LEONARD DE VERA and he testified that
Willie D. Keng became his client in 2005. He is still his counsel on other cases but not
in the instant case. When Atty. De Vera learned that Keng has already filed this case
in 2016, through another counsel, he told Keng that he cannot be a counsel in this case
because he had tried to negotiate with Rappler, through Marites Vitug, to publish a
clarification or retraction of what then appeared to be in his opinion, libelous,
defamatory allegations against him, contained in the 2014 article.
Atty. De Vera testified that Keng previously consulted him about the allegedly libelous
article. He advised him to try to talk to Rappler, to look for a mediator so that instead of
going to court, a possible negotiation can be made for the purpose of taking down the
defamatory allegations in the article or at least a clarification, if not a total retraction.
Atty. De Vera was discouraging litigation because he always gave the same advice to
most of his clients that if it can be resolved through negotiation specially in dealing with
the media, it is better to negotiate because it is very hard to make and pick-up a fight
with them. They always have the last say.
Thereafter, Mr. Keng asked him if he could help him find a mediator. Atty. De Vera
suggested to him that he happened to know Marites Vitug, exactly what was her
position at that time with Rappler he was not aware of, but he heard from some of their
mutual friends that Vitug was then connected in some way, some form, some manner
with Rappler. He called Marites Vitug, sometime in August 2016, after he obtained from
the PDEA a certification that Mr. Keng had no derogatory record with respect to the
drugs allegations.
He sent that letter to Marites Vitug through email. She responded and told him that she
would assign a writer, in the person of Katerina Francisco, to contact him.
Atty. De Vera and Francisco were able to contact each other. He told her that there
were many errors in the Article that appeared under Rappler’s publication. Among
which was, the drug smuggling of Keng. He said that he has a PDEA record showing
that Keng has no derogatory record on drugs. He further told her that the other
allegations are defamatory, namely, the alleged murder or killing of former councilor,
Manila Councilor Chika Go, the alleged involvement of Keng in human trafficking as he
was neither investigated nor there is any record in any government agency of his
involvement. The same holds true for the allegations on cigarette smuggling and tax
evasion. He told her to at least publish their side if she does not want to take down the

article. And Francisco said that she already wrote an article and the same was already
with her editors.
The witness made numerous follow-ups within the period of seven (7) months from
August 2016 until February 2017 with Vitug and Francisco regarding the publication of
the article written by the latter
On 9 September 2019, the prosecution and the defense entered into stipulations and
admissions as to the supposed testimony of KATERINA SABELINA
FRANCISCO that: (1) she was a former researcher writer for Rappler, Inc., specifically
for the duration where there was communication between her and Atty. Leonard De
Vera from September 14, 2016 up to February 18, 2017; (2) that she would be testifying
on the same matters testified to by Atty. De Vera relating to their communication as
reflected on Exhibits “S” to “S-23-A”; (3) that she would testify that there was a story
drafted already and that it was referred to her editors but there was no action thereafter;
(4) that as of last follow-up text made by Atty. De Vera on 18 February 2017, there’s
still no clarificatory article that was published; (5) that as of 1 November 2017, she is
no longer connected with Rappler, Inc.
The last witness for the prosecution is the private complainant WILFREDO D. KENG,
who is a businessman, with interests in several companies based in the Philippines and
in China, i.e., Century Peak Metals Holdings Corporation, Colony Investors (SPV-
AMC), Inc., Good Earth Plaza and U-Need Shopping Center, among others. These
companies are involved in various industries, including mining, leasing, property
development, land investment, manufacturing, production and merchandising, among
others.
Keng testified that in his line of work, he has been recognized as a diligent and self-
made entrepreneur in his business circles and with his employees. Even if he did not
seek it, Forbes ranked him as one of the Philippines’ Top 40 Richest individuals in the
country, and was described by the Daily Tribune as a “low-key figure in business with
a massive fortune.” He has also been commended for his contributions to the
community, in particular, for his donations for scholarships and sports amounting to
about Php2,000,000.00 each year, over several years, to different colleges and
universities, such as the University of the Philippines.
He described himself as “low-key” because he is a very private person and intentionally
stays out of the limelight. Hence, before Rappler and the accused published their
malicious article against him, people who are outside of his business circles ordinarily
were not aware of him
He testified that the Wilfredo Dy Keng being referred to in the subject article is him.45
He justified that the article identifies Wilfredo Dy Keng as the president of Century Peak
Metals Holdings Corp., Century Hua Guang Smelting, Inc., Colony Investors (SPV-
AMC), Inc., Good Earth Plaza, U-Need Shopping Center, Carriedo Plaza, and
Balikbayan Shopping Mall, among others. He is or was, at some point, president of
these companies. Except for wrongly describing him as a “naturalized Filipino,” when
he is actually a natural-born Filipino, the article clearly refers to him by stating the above
credentials.
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Upon reading the subject article, Keng averred that he was completely shocked. He
was angry and upset because he did not commit the crimes imputed to him in the article
or any other crime. He has never been questioned or investigated by any law
enforcement agency regarding any involvement in a crime, especially as regards the
murder of a certain Chika Go. He has never even received summons in any criminal
case. Yet, in the article, he was identified as a person with a shady past.
The witness identified his NBI Clearance dated 17 September 2019 showing that he
has no derogatory record on file. He, likewise, identified two (2) PDEA letters dated 15
August 2016 and 20 May 2019, which state that he has no derogatory record on file
with PDEA for violation of Republic Act No. 9165.
In relation to Rappler’s republication of the article, Keng sought the advice of his lawyer,
Atty. Leonard De Vera. He was advised to notify Rappler that the allegations in its article
are false, and asked its officers to take down or retract the article. Also, to demand from
Rappler to present a fair and well-balanced news report by also publishing his side of
the story. He requested Atty. De Vera to contact Rappler on his behalf to carry out his
recommended courses of action. Accordingly, Atty. De Vera contacted Rappler,
through its editor-at-large, Marites Vitug and requested her to take down the article from
the website and publish his side of the story.
Atty. De Vera, likewise, secured the certifications by PDEA and sent the letter from
PDEA dated 15 August 2016 to Rappler, through Vitug. The latter referred Atty. De
Vera to one of Rappler’s writers, Katerina Francisco. After interviewing Atty. De Vera,
Francisco informed him that she already wrote an article, which she submitted to her
editors at Rappler. Rappler, however, never published the article despite Atty. De
Vera’s continuous follow up with Vitug and Francisco from August 2016 to February
2017.
Because of the said non-publication of Francisco’s article, Keng felt humiliated and
defamed about Rappler’s unfair treatment towards him. Rappler never bothered to ask
for his side of the story regarding the imputations of crimes against him before
publishing the article. Someone who identified himself as a reporter, called him once
during the closing stages of former Chief Justice Renato C. Corona’s impeachment trial
in 2012, only to ask whether his vehicle with plate number ZWK 111 was the vehicle
being used by then CJ Corona during the impeachment trial, to which he answered in
the negative. He remembers lending CJ Corona one of his vehicles but he returned it
to him before the impeachment trial began.
Because of Rappler’s refusal to either take down the article or publish Francisco’s
article, he obtained the legal services of Andres Padernal & Paras Law Offices, which
helped him file a criminal complaint for cyberlibel with the National Bureau of
Investigation against the persons responsible for the publication of the malicious article,
namely (a) Santos; (b) Ressa, Rappler’s Editor-in-Chief; and (c) Benjamin Bitanga,
Rappler’s chairman. He later secured the legal services of Villa and Cruz Law Offices
for the proceedings in the Department of Justice.
Keng explained that he only filed a case against Santos, Ressa and Bitanga in 2017
instead of in 2012 when the article was first published because his lawyer advised him
 117

against it. His lawyer explained to him that it is difficult to make an enemy out of the EVIDENCE FOR THE DEFENSE
media. As a businessman, he did not want to be exposed to more bad publicity, so he
decided to just endure it, thinking that it will eventually fade. However, despite his The defense presented Atty. Leo Edwin D. Leuterio and Ma. Rosario F. Hofileña.
silence and the absence of any provocation on his part, Rappler and the accused
ATTY. LEO EDWIN D. LEUTERIO is presently assigned at the Legal Service of the
republished the article in 2014. This made him realize that Rappler and the accused
National Bureau of Investigation as the deputy director. He identified the
were out to attack him. At that point, he strongly felt that he had to do something
Memorandum61 addressed to the Director of NBI, Atty. Dante Gierran, Deputy Director
because he was not the only one affected by their malicious imputations. His wife and
for Investigation Jun de Guzman and Chief of the Cybercrime Division containing the
daughters also felt humiliated and deeply bothered by the false image that Rappler and
legal opinion issued by the Legal Service Division of the NBI.
the accused painted of him. He feared that even his own daughters would doubt his
character if he did nothing to clear his name or to stand up for himself. The defense next presented MA. ROSARIO F. HOFILEÑA and she testified that she is
currently connected with Rappler as journalist since 2012, in fact, she is one of the
Keng further testified that because of Rappler’s publication of the subject article, his
founders. She is one of the Senior Editors at Rappler and heads one section which is
wife and his two (2) daughters have been ridiculed and judged by friends and
called Newsbreak, which handles in-depth and investigative stories of Rappler.
acquaintances and labeled as associated with drug lords and smugglers. He and his
family can no longer fully enjoy their lives since he has been thrust into the limelight as Hofileña explained that as editor of Newsbreak, she has to generate story ideas, so,
an alleged criminal, if not a peddler of crime. she work very closely with reporters, as well as section editors. Her work involves a lot
of shepherding and editing of stories and seeing to it that the section is sustainable,
He feels sorry that his daughters are also going through the public humiliation that he
that she is within budget and that stories are delivered on deadline. She is also in-
is suffering.
charge of the training that involves mentoring of reporters, training the new hires and
Keng’s daughters were approached by different persons to comment upon the seeing to it that they follow the standards of Rappler.
malicious allegations against him in the article. Their own reputations have been
When asked about her responsibilities as a senior editor for Rappler she explained that
severely misjudged and injured. In fact, his eldest daughter, Patricia, who ran as a
there is a pool of editors. They have what they call a central desk which has seven (7)
nominee of the Wow Pilipinas Partylist in this year’s elections, lost the contest by a
or eight (8) editors and it is the central desk that processes all stories that go, to what
narrow margin. Since they were previously confident that she would win, due to the
they call the Nation section. But for Newsbreak, she works with the senior editors
massive support of her followers, he believes her loss was due to the statements the
especially when they deal with sensitive stories, they see to it that there are at least two
accused published against him in the article.
(2) or three (3) editors to review a story before it is published.
With respect to his business, Keng asserted that the article has had a negative impact
She described the current organizational structure of Rappler as a news organization.
on his occupation as a businessman. As the president of a publicly-listed corporation,
She explained that Accused Ressa is the CEO and Executive Editor. As such, Ressa
he cannot afford to have the image that he is connected to murderers, human
oversees the entire organization. She looks at the big picture and worries about the
traffickers, drug dealers and smugglers. Based on his personal business experience, it
financials. She is not involved in day to day operations. She does not dip her fingers
is customary when doing business with other persons and entities, especially for
into stories because her obsession is disinformation and terrorism. She is accountable
important projects, that these corporations conduct due diligence on their prospective
and reports to the board of trustees and she sees that they remain competitive and that
partners before entering contracts with them. Based on human nature and experience,
she is aware of global trends.
a rational businessman would not choose to work or transact with someone who has
been accused of such malevolent crimes, and instead pick other individuals, who have Hofileña explained that the executive editor position in Rappler is not the equivalent of
clean records, to engage in business with. the editor-in-chief in the newspaper. Rappler has no editor-in-chief. As executive editor,
Accused Ressa does not edit stories. Below her would be the managing editor in the
With respect to his peers’ reaction after reading the subject article, he testified that while
person of Glenda Gloria. In the absence of Ressa, who always travels, Gloria then
some have hesitantly touched upon the subject of the article, they did not ask him
heads the newsroom, oversees all sections in Rappler. All the managers report to her,
whether accused’s defamatory statements are true, for fear of offending him. He also
in the same way that they report to Ressa. Both of them oversee the financials of
noticed a slight difference in the way he has been treated since then. Due to the
Rappler. Under Gloria would be the section heads who are really editors.
accused’s publication of the article, not only in 2012, but again in 2014, he has gained
notoriety. The witness explained that if an article involves a controversial story, Ressa would
normally consult with the other editors. Rappler is not the typical newspaper hierarchical
Keng prayed that moral damages and exemplary damages be awarded to him in the
organization, it is a flat organization, consultative and democratic. If it will involve a
amount of Php25,000,000.00, respectively. He, likewise, prayed for an award of Php
decision that will affect the entire organization and its image, it is automatic that they
719,000.00 as attorney’s fees.

consult each other. But the witness clarified that when there is a stalemate, that the
organization cannot arrive at a categorical decision and the corporation has to make a
decision, Accused Ressa is the one to ultimately break the tie.
Hofileña testified that she first met Ressa when she was with ABS CBN and when she
was still with Newsbreak, when it was a magazine then. They did the story with ABS
and she interviewed Ressa. When Ressa decided to put up Rappler after she left ABS,
she asked her if she wants to join and without hesitation, she said yes, because it is an
organization that is going to be run by journalists and not big business unlike other
existing media organizations.
Accused Santos, on the other hand, was her colleague at Newsbreak magazine and
he was one of the researchers and writers. When Rappler was created, Santos was
among those they hired as their researchers.
Since Rappler started in 2012, they only have three (3) libel suits, including the present
case. The other two (2) cases were dismissed at the level of prosecution.
Rappler has a policy on how to deal with libel suits. They are very careful with their
stories. They have standards and they stress to their reporters the importance of
journalistic core values which include accuracy, truth telling, fairness, and balance.
When they say fairness and balance that would include having to get the other side
whenever there is derogatory information that is reported about it.
She explained the meaning of the two (2) dates appearing on the subject article. The
first date which says “Published 7:39 A.M. May 29, 2012” is when the editor or editors
have edited the story and it’s published on the site. The second notation which states
“Updated 5:42 P.M. February 19, 2014” means that whenever there are changes made
on the previous republished story, that would be recorded. So, anyone who touches
the story or reads the story again and closes the story in their system and saves the
story, it would be recorded and it would indicate an update. In the subject article, there
was a typographical error that was identified, that was seen by one of their reporters
and she pointed it out to the editors and the latter gave her the go signal to correct the
said error.
On the last portion of the article, there is a notation at the very end: “With reports from
Aries Rufo/Rappler.com” which means that the story itself is not just the product of
Accused Santos. It had inputs from Aries Rufo, who was a consultant with Rappler,
who already passed away.
The witness confirmed the testimony of Atty. De Vera that he contacted Rappler
regarding the subject article and got in touch with Marites Vitug. The witness assigned
Katerina Francisco to interview Atty. De Vera and she wrote a story and that draft is in
their system but the same was not posted because it was buried by more urgent news.
The defense opted not to present Accused Reynaldo Santos, Jr and Maria Angelita
Ressa.
RULING OF THE COURT
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After a careful evaluation of the evidence presented by both the prosecution and the
defense, the Court finds the prosecution’s evidence sufficient in establishing the guilt
of both Accused Reynaldo Santos, Jr. and Maria Ressa beyond reasonable doubt for
Violation of Section 4(c)(4) of Republic Act No. 10175.
Cyberlibel is punishable under Section 4 (C)(4) of Republic Act No. 10175, otherwise
known as Cybercrime Prevention Act of 2012, which provides:
Section 4. Cybercrime Offenses. – The following acts constitute the offense of
cybercrime punishable under this Act:
xxx xxx
(c) Content-related Offenses:
xxx xxx xxx
(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the
Revised Penal Code, as amended, committed through a computer system or any other
similar means which may be devised in the future.
xxx xxx xxx
Libel is defined as “a public and malicious imputation of a crime, or of a vice or defect,
real or imaginary, or any act, omission, condition, status, or circumstance tending to
cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken
the memory of one who is dead.”
By adopting the definition of libel as embodied in the Revised Penal Code, Section 4
(c)(4) also adopts the elements of libel as defined in Article 353 in relation to Article 355
of the Code. Thus, the elements of libel are: (a) the allegation of a discreditable act or
condition concerning another; (b) publication of the charge; (c) identity of the person
defamed; and (d) existence of malice. In addition to the aforementioned four (4)
elements, the act must be committed through the use of a computer system or any
similar means which may be devised in the future, so that said act may constitute
cyberlibel.
In this case, the prosecution was able to establish the presence of all the elements of
cyberlibel.
FIRST ELEMENT: Discreditable act or condition concerning another
As to the first requisite, the Court finds the subject article defamatory. An allegation is
considered defamatory if it ascribes to a person the commission of a crime, the
possession of a vice or defect, real or imaginary, or any act, omission, condition, status
or circumstance which tends to dishonor or discredit or put him in contempt or which
tends to blacken the memory of one who is dead. In determining whether a statement
is defamatory, the words used are to be construed in their entirety and should be taken
in their plain, natural and ordinary meaning as they would naturally be understood by
persons reading them, unless it appears that they were used and understood in another

sense. Moreover, a charge is sufficient if the words are calculated to induce the hearers
to suppose and understand that the person or persons against whom they were uttered
were guilty of certain offenses, or are sufficient to impeach their honesty, virtue, or
reputation, or to hold the person or persons up to public ridicule.
A thorough reading of the subject article reveals that, clearly, there were several crimes
imputed upon the person of Keng. Human trafficking and drug smuggling were the first
illegal activities attributed to Keng, as quoted hereunder:
” xxx xxx xxx The report stated that Keng had been under surveillance by the National
Security Council for alleged involvement in illegal activities, namely “human trafficking
and drug smuggling. xxx xxx xxx”
In the next paragraph of the subject article, another imputation of crime was made
against Keng, namely, murder, to wit:
“The document also said Keng was involved in a murder case for which he was “never
jailed.” It could be referring to the death of Manila Councilor Chika Go in 2002 where
Keng had been identified as a mastermind. xxx xxx xxx”
Another crime is the smuggling of fake cigarettes and the alleged involvement of Keng
in the illegal transaction of granting special investors residence visas to Chinese
nationals for a fee, as the quoted portion of the article shows:
“According to a 2002 Philippine Star report, Keng was also accused of smuggling fake
cigarettes and granting special investors residence visas to Chinese nationals for a fee.
Keng has denied his involvement in this illegal transation, saying it’s easy to get visas
to the Philippines.”
A reading of the above-quoted portions of the subject article, leads to no other
conclusion except that in writing said article, Accused Santos, Jr., ascribes unto Keng
commissions of crimes such as drug smuggling, human trafficking and murder which
tends to dishonor, discredit or put him in ridicule. The article has created in the minds
of ordinary readers that Keng has a disgraceful reputation. In fact, prosecution’s
witness, Malonzo stated categorically that he immediately made prejudices against
Wilfredo Keng because of the subject article. He averred that after reading the same,
he gathered that Wilfredo Keng had been accused of smuggling fake cigarettes and
was alleged to have been involved in human trafficking and drug smuggling.
In refuting all those imputations, the prosecution presented two (2) letters from PDEA
dated 15 August 2016 and 20 May 2019 stating that Keng has no derogatory record on
file at PDEA for violation of RA 9165 and that Keng has no pending drug case in court
and his name is not reflected in the PDEA National Drug Information System,
respectively.
Likewise, the prosecution submitted the NBI Clearance of Keng dated 17 September
2019 showing that he has no criminal record.
SECOND ELEMENT: Publication of the charge
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The element of publication is likewise established in this case. In libel, publication
means making the defamatory matter, after it is written, known to someone other than
the person against whom it has been written. In this case, both the prosecution and the
defense stipulated that the subject article was published in the website of Rappler, Inc.
on 29 May 2012 and was updated on 19 February 2014.
The publication involved in this case dated 19 February 2014 is actually a republication.
The Supreme Court already settled in the case of Brillante v. CA that a single
defamatory statement, if published several times, gives rise to as many offenses as
there are publications. This is the “multiple publication rule” which is followed in our
jurisdiction, as pronounced by the Supreme Court as early as in the case of Soriano v.
IAC. Up to this date, the High Court has not overturned said ruling, thus, applying the
principle and legal maxim stare decisis et non quieta movere under Statutory
Construction, which means one should follow past precedents and should not disturb
what has been settled, this Court is required to apply the same.
Bearing in mind that, as above-discussed, cyberlibel constitutes prohibited acts of libel
under Revised Penal Code (RPC), the doctrines applicable to ordinary libel is, likewise,
applicable to cyberlibel. In view thereof, the doctrine of republication is applicable in
this case.
A plain reading of the subject article shows that it was originally published on Rappler’s
website on 29 May 2012 and was updated on 19 February 2014. The Court considers
the update a republication of the article. An update connotes that a change was made
to the article. Said updated version was the one published and still available on the
website of Rappler, Inc. The Court is of the conclusion that the original version was
replaced by the updated one considering that it is no longer accessible in the Rappler’s
website. In other words, the original article published on 29 May 2012 can no longer be
found. Only the 19 February 2014 version presently exists and accessible on the
internet. Clearly, there was republication of the updated version of the subject article.
Malonzo, in fact, testified to have read the 2014 republication of the subject article.
The defense, in its attempt to contest that there was republication of the article,
maintained that the same was merely updated because there was a correction of an
alleged typographical error. Hofileña, however, failed to adduce evidence indicating the
error she was referring to. She failed to substantiate her testimony with documentary
evidence, making it self-serving and deserving of scant consideration from this Court.
In any case, the testimony of Hofileña regarding said typographical error is hearsay. It
is striking that the defense did not present Accused Santos, Jr., being the author of the
subject article, to confirm the existence of the typographical error. They also did not
present the reporter who allegedly corrected such error.
In presenting witness Hofileña, the defense did not adduce any evidence to establish
her personal involvement in the writing of the article or in updating it. This makes her
testimony on the correction of the typographical error and updating of the article
hearsay. As such, said testimony is inadmissible.

The Court wants to stress that in the above-mentioned case of Brillante v. CA, the
Supreme Court ruled that each publication constitutes one offense of libel without
qualification as to whether it was modified or not. Applying the said ruling, as long as
the defamatory statement is published several times, it gives rise to as many offenses
as there are publications. In this case, the fact remains that in the republished article
dated 19 February 2014 the defamatory statements can still be found giving rise to the
present indictment.
THIRD ELEMENT: Identity of the person defamed
With respect to the third element, there is no doubt that the article was referring to
Wilfredo Keng as he was particularly named therein. Moreover, the corporations
mentioned in the article (i.e., Century Peak Metals Holdings Corp, Century Hua Guang
Smelting Inc., and Colony Investors Inc., among others) were the same corporations to
which keng is or became the president. Thus, there is no doubt that the identity of the
Keng was established in this case.
FOURTH ELEMENT: Existence of malice
The element of malice is, likewise, present in this case. Malice connotes ill will or spite
and speaks not in response to duty but merely to injure the reputation of the person
defamed, and implies an intention to do ulterior and unjustifiable harm. It is present
when it is shown that the author of the libelous remarks made such remarks with
knowledge that it was false or with reckless disregard as to the truth or falsity thereof.
Malice, however, does not necessarily have to be proven. There are two types of malice
— malice in law and malice in fact. Malice in law is a presumption of law. The Supreme
Court, in the case of Disini, Jr. v. The Secretary of Justice, already settled that there
is malice in law in case the offended party is a private individual, thus:
“But, where the offended party is a private individual, the prosecution need not prove
the presence of malice. The law explicitly presumes its existence (malice in law) from
the defamatory character of the assailed statement.”
Here, the prosecution sufficiently established that Keng is a private person being a
businessman, with interests in several companies based in the Philippines and China.
Thus, the prosecution is discharged of its burden in proving actual malice. Considering
that Keng is neither a public official nor a public figure, the law explicitly presumes the
existence of malice from the defamatory character of the assailed statement. For their
defense, the accused must show that they have a justifiable reason for the defamatory
statements even if it were in fact true. Lamentably, the defense miserably failed in this
regard.
The Revised Penal Code and the Cybercrime Law, on the other hand, impose a stricter
standard on malice to convict the author of the defamatory statement where the
offended party is a public figure. The Supreme Court held in the case of Disini v.
Secretary of Justice that:
“The defense of absence of actual malice, even when the statement turns out to be
false, is available where the offended party is a public official or a public figure, as in
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the cases of Vasquez (a barangay official) and Borjal (the Executive Director, First
National Conference on Land Transportation). Since the penal code and implicitly, the
cybercrime law, mainly target libel against private persons, the Court recognizes that
these laws imply a stricter standard of “malice” to convict the author of a defamatory
statement where the offended party is a public figure. Society’s interest and the
maintenance of good government demand a full discussion of public affairs.”
Unlike in the afore-quoted case, the person involved here is a private individual and not
a public figure.
In any case, the Court finds that malice in fact is obtaining in this case. There is “actual
malice” or malice in fact when the offender makes the defamatory statement with the
knowledge that it is false or with reckless disregard of whether it was false or not. The
reckless disregard standard used here requires a high degree of awareness of probable
falsity. There must be sufficient evidence to permit the conclusion that the accused in
fact entertained serious doubts as to the truth of the statement he published.
In the present case, Accused Santos, Jr. wrote the subject article sans verification as
to the veracity of the allegations stated therein. The article imputes various crimes upon
the person of Keng which was sufficiently proven during trial to be untrue. Thus, the
Court is of the conclusion that accused Santos, Jr. did not bother to verify with any law
enforcement agency whether Keng is actually involved in any of the aforementioned
crimes before publishing the subject article.
This utter lack of verification is contrary to the standard maintained by Rappler, as
testified to by Hofileña, stressing the importance of journalistic core values that is
accuracy, truth telling, fairness and balance. She emphasized that fairness and
balance is all about getting the other side of the story. The circumstances surrounding
the publication of the article however, are not in accordance with these purported core
values.
It was well-established in the testimony of Atty. De Vera, and even bolstered by no less
than Rappler writer Francisco and senior editor Hofileña, that Keng, through the former,
requested Rappler to publish Keng’s story. Vitug, in fact, assigned a reporter, in the
person of Francisco, to interview Atty. De Vera. However, Rappler, Inc., despite
numerous follow-ups made by Atty. De Vera, did not publish the same, as admitted by
Hofileña, on the ground that there were more urgent news at the time. In fact, several
follow-ups were made by Atty. De Vera from August 2016 to February 2017 or close to
a period of seven (7) months, giving them all the opportunity to verify, issue a
clarificatory article, or at least, publish the side of Keng. They did not. If it is true that
Rappler, Inc. and the individuals composing it are after fairness and balance, they will
publish Keng’s side of the story for clarification despite the existence of more urgent
news.
It is noteworthy that after the first publication of the subject article in Rappler’s website,
Keng did not immediately pursue any legal action against both accused. Instead, he
asked his lawyer to notify Rappler that the allegations in its article are false and to
demand for a presentation of a fair and well-balanced report by also publishing his side
of the story. Keng gave Rappler and the accused a chance to publish a clarificatory

article or accurate statements but they chose to disregard the same. Atty. De Vera
testified that he sent the PDEA certification, stating that Keng had no derogatory record
with respect to the drugs allegations, to Marites Vitug. And Hofileña testified that the
story drafted by Francisco was not posted on their website because they have to verify
first the said PDEA certification. She justified their action by stating that they have to
countercheck and see whether there is a basis for that certification and just because a
document is sent by anyone from the government, it does not mean that they have to
take it as a truth.
The Court is convinced that both accused are aware of the probable falsity of the
subject article considering the fact that Atty. De Vera pointed out to Francisco the
inaccuracies in the subject article and the receipt by Vitug of the said PDEA certification.
Despite such awareness, however, both accused did not bother to publish the
clarificatory article and they just let the libelous article remain in their website. A news
organization who claims to adhere to accuracy, fairness and balance in terms of
reporting, would have retracted, or at the very least, issued a clarificatory article if there
have been some indications of falsity to its previous article. Both accused, however, did
not. The Court finds that the subject article was republished with reckless disregard of
whether it was false or not. This clearly shows actual malice.
FIFTH ELEMENT: Committed through a computer system
Section 4 (c) (4) establishes the computer system as another means of publication.
Computer system, as defined under Section 3
(g) of RA 10175, refers to:
“any device or group of interconnected or related devices, one or more of which,
pursuant to a program, performs automated processing of data. It covers any type of
device with data processing capabilities including, but not limited to, computers and
mobile phones. The device consisting of hardware and software may include input,
output and storage components which may stand alone or be connected in a network
or other similar devices. It also includes computer data storage devices or media.”
Evidently, the libelous act was committed through a computer system considering that
during pre-trial, it was admitted as a fact, by both the prosecution and the defense, that
the subject article was published at Rappler’s website.
THE OFFENSE HAS NOT YET PRESCRIBED
Among the theories advanced by the defense is that the present action filed by Keng
against both accused has already prescribed. In support thereto, it presented as
evidence the NBI Memorandum dated 5 February 2018. However, said evidence does
not bear weight in this case.
A close perusal of the said memorandum reveals that it emanated from the Legal
Service of the National Bureau of Investigation and is addressed to their director. Thus,
it is merely an internal memorandum containing the legal opinion on the cyberlibel case
filed by Keng against the accused before the said agency. It is not relevant and does
not bind the Court
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It is worthy to note that NBI is a government agency under the Department of Justice
which belongs to the Executive Branch of the Government. As part of the said branch,
its main task is to implement the law, considering especially that NBI is a law
enforcement agency. The interpretation of the law is a task that belongs to the
courts.com
As above-discussed, republication is present in this case, thus, the reckoning period
for the determination whether the offense already prescribed or not is on the date of
the republication which is 19 February 2014.
The Supreme Court already ruled in the case of Panaguiton, Jr. v. Department of
Justice that Act No. 3326 applies to offenses punishable by special laws which do not
provide for their own prescriptive periods, to wit:
“There is no question that Act No. 3326, appropriately entitled An Act to Establish
Prescription for Violations of Special Acts and Municipal Ordinances and to provide
When Prescription Shall Begin, is the law applicable to offenses under special laws
which do not provide their own prescriptive periods.”
A painstaking review of RA No. 10175 reveals that it does not provide for its own
prescriptive period, thus the provisions of Act No. 3326 is controlling. Section 1 of the
same provides that:
“SECTION 1. Violations penalized by special acts shall, unless otherwise provided in
such acts, prescribe in accordance with the following rules: (a) after a year for offences
punished only by a fine or by imprisonment for not more than one month, or both; (b)
after four years for those punished by imprisonment for more than one month, but less
than two years; (c) after eight years for those punished by imprisonment for two years
or more, but less than six years, and (d) after twelve years for any other offence
punished by imprisonment for six years or more, except the crime of treason, which
shall prescribe after twenty years. Violations penalized by municipal ordinances shall
prescribe after two months.”
Since R.A. 10175 did not specifically provide for a penalty for cyberlibel, the penalty
under Section 6 of said act must be referred to which is one degree higher than that
prescribed under the Revised Penal Code for ordinary libel as provided under the
above-mentioned provision which states, to wit:
“SECTION 6. All crimes defined and penalized by the Revised Penal Code, as
amended, and special laws, if committed by. and with the use of information and
communications technologies shall be covered by the relevant provisions of this Act:
Provided, That the penalty to be imposed shall be one (1) degree higher than that
provided for by the Revised Penal Code, as amended, and special laws, as the case
may be.”
Article 355 of the Revised Penal Code provides for the imposable penalty for libel:
“Art. 355. Libel by means of writings or similar means. – A libel committed by means of
writing, printing, lithography, engraving, radio, phonograph, painting, theatrical
exhibition, cinematographic exhibition, or any similar means, shall be punished by

prision correccional in its minimum and medium periods or a fine ranging from 200 to
6,000 pesos, or both, in addition to the civil action which may be brought by the offended
party.”
As validated by the Implementing Rules and Regulation of RA No. 10175, the
penalty for cyberlibel is prision correccional in its maximum period to prision mayor in
its minimum period, as quoted hereunder:
“Libel — The unlawful or prohibited acts of libel, as defined in Article 355 of the Revised
Penal Code, as amended, committed through a computer system or any other similar
means which may be devised in the future shall be punished with prision correccional
in its maximum period to prision mayor in its minimum period or a fine ranging
from Six Thousand Pesos (P6,000.00) up to the maximum amount determined by
Court, or both, in addition to the civil action which may be brought by the offended party.
xxx xxx xxx” (emphasis supplied)
Considering that prision correccional in its maximum period and prision mayor in its
minimum period is 4 years, 2 months and 1 day to 8 years, the offense shall prescribe
after TWELVE (12) YEARS following the provision of Section 1 of Article 3326.
The instant case was filed in Court on 5 February 2019, which is well within the period
of twelve (12) years and clearly, prescription has not yet set in.
It is worth stressing that this case is one for Cyberlibel punished under Section 4(c) (4)
of R.A. 10175, an offense separate and distinct from the ordinary libel punished under
Article 355 of the Revised Penal Code. R.A. 10175 provides for a higher and distinct
penalty as well. And precisely because a higher penalty is prescribed, cyberlibel is
considered as a more serious offense than ordinary libel. Thus the one year prescriptive
period for ordinary libel does not apply. The only reference made by R.A. 10175 to the
Revised Penal Code is in so far as the elements of libel are concerned.
LIABILITY OF ACCUSED RESSA AND SANTOS, JR.
Considering that cyberlibel constitutes prohibited acts of libel under the Revised Penal
Code, the persons responsible under Article 360 of the same are the very same
persons to be held liable for cyberlibel, thus:
Article 360. Persons responsible. – Any person who shall publish, exhibit, or cause the
publication or exhibition of any defamation in writing or by similar means, shall be
responsible for the same.
The author or editor of a book or pamphlet, or the editor or business manager of a daily
newspaper, magazine or serial publication, shall be responsible for the defamations
contained therein to the same extent as if he were the author thereof.
xxx xxx xxx
From the foregoing, not only the person who published, exhibited or caused the
publication or exhibition of any defamation in writing shall be responsible for the same,
all other persons who participated in its publication are liable, including the editor or
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business manager of a daily newspaper, magazine or serial publication, who shall be
equally responsible for the defamations contained therein to the same extent as if he
were the author thereof. An editor or manager of a newspaper, who has active charge
and control over the publication, is held equally liable with the author of the libelous
article, this is because it is the duty of the editor or manager to know and control the
contents of the paper, and interposing the defense of lack of knowledge or consent as
to the contents of the articles or publication definitely will not prosper. The liability,
therefore, of both accused is statutory in nature, as clearly provided in Article 360 of
the RPC, in relation to RA 10175.
A perusal of the article dated 19 February 2014 will show the name of Accused Santos,
Jr. as the author of the said article. And during pre-trial, both the prosecution and the
defense admitted that Accused Ressa is the chief executive officer and executive editor
of Rappler, Inc. Having identified Santos, Jr. as author of the subject article and Ressa
as editor of the corporation which published the same, the criminal liability of both
accused on the republication of the subject article cannot be denied.
During the presentation of their evidence, the defense, through its witness Hofileña,
explained that accused Ressa, though she is the executive editor of Rappler, does not
edit stories and her position is not equivalent to that of an editor-in-chief in newspaper,
However, in explaining that Rappler is a flat organization, Hofileña testified that in
instances wherein an article involves a controversial story, Ressa consults with other
editors. In the testimony of Hofileña, it was admitted that it is Accused Ressa who
ultimately makes the decision when the organization reaches an impasse. Through this
declaration, it is evident that she controls and approves the articles that are to be posted
on Rappler’s website.
To the mind of the Court, Rappler’s scheme of not using the term “editor-in-chief” in its
organizational structure is a clever ruse to avoid liability of the officers of a news
organization who can be held responsible for libel under Article 360 of the Revised
Penal Code, in relation to RA 10175. They used the nomenclature “executive editor”
instead, although clearly the nature of the functions she discharges is still that of an
editor as contemplated by law.
In addition, the defense theory that Accused Ressa has no participation is untenable.
It should be stressed that neither the publisher nor the editor can disclaim liability for
libelous articles that appear on their paper by simply saying that they had no
participation in the preparation of the same.
In fact, in the case of Fermin v. People, the Supreme Court already settled that when
the accused has already been identified to be the editor, proof of participation in the
publication of the article is no longer required, thus:
“xxx xxx xxx proof of knowledge of and participation in the publication of the offending
article is not required, if the accused has been specifically identified as “author, editor,
or proprietor” or “printer/publisher” of the publication xxx xxx xxx”
Aside from being an editor, their witness Hofileña admitted that Accused Ressa is,
likewise, liable in her capacity as the business manager of Rappler, Inc. It is worth

mentioning that Ressa is not only the executive editor of Rappler, but also its chief
executive officer, as admitted during pre-trial. Hofileña explained that, as such, Ressa
oversees the entire organization and takes care of its financials. Ressa, clearly, has the
absolute management responsibility over Rappler, Inc.
In the case of State v. Mason, which the Supreme Court has cited in multiple libel
cases, the question of the responsibility of the manager or proprietor of a newspaper
was discussed, to wit:
“The question then recurs as to whether the manager or proprietor of a newspaper can
escape criminal responsibility solely on the ground that the libelous article was
published without his knowledge or consent. When a libel is published in a newspaper,
such fact alone is sufficient evidence prima facie to charge the manager or proprietor
with the guilt of its publication.
The manager and proprietor of a newspaper, we think ought to be held prima facie
criminally for whatever appears in his paper, and it should be no defense that the
publication was made without his knowledge or consent xxx xxx xxx
One who furnishes the means for carrying on the publication of a newspaper and
entrusts its management to servants or employees whom he selects and controls may
be said to cause to be published what actualy appears, and should be held responsible
therefore, whether he was individually concerned in the publication or not xxx xxx xxx
We think, therefore, the mere fact that the libelous article was published in the
newspaper without the knowledge or consent of its proprietor or manager is no defense
to a criminal prosecution against such proprietor or manager.”
In Tulfo v. People citing the case of Commonwealth v. Morgan, the Supreme Court
held that it devolves upon the proprietor that no libelous articles are published in the
conduct of his business, thus:
“It is the duty of the proprietor of a public paper, which may be used for the publication
of improper communications, to use reasonable caution in the conduct of his business
that no libels be published.”
Being the editor and business manager of Rappler, Inc., the claim that Ressa had no
participation in the subject article does not shield her from liability. In ordinary libel,
absence of participation is not a defense because the provision in the Revised Penal
Code plainly and specifically states the responsibility of those involved in publishing
newspaper and other periodicals. The same principle also applies in this case. It is not
a matter of whether she was actually involved in preparing or editing the subject article,
because the law simply states that she, as editor and business manager, is liable “AS
IF” she was the author, in accordance with Article 360 of the Revised Penal Code, in
relation to RA 10175.
The defendant in a libel case, however, shall be acquitted if there is proof that the
libelous statement is true and that the article was published with good motives and for
justifiable ends, as provided under Article 361 of the Revised Penal Code, to wit:
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Article 361. Proof of the truth. – In every criminal prosecution for libel, the truth may be
given in evidence to the court and if it appears that the matter charged as libelous is
true, and moreover, that it was published with good motives and for justifiable ends, the
defendant shall be acquitted.
xxx xxx xxx
In such cases, if the defendant proves the truth of the imputation made by him, he shall
be acquitted.
It is notable that the defense did not present both Accused Santos, Jr. and Ressa to
refute the charge against them. Being the author of the subject article, Accused Santos,
Jr. could have proven the veracity of the imputations he made upon the person of Keng
by testifying on the basis of the allegations he made on the article. Santos, Jr. and
Ressa, the latter being the executive editor of Rappler, Inc., are both in the best position
to testify that the article was published with good motives and for justifiable ends. But
as the records of this case show, both accused did not take the witness stand.
Nonetheless, it has been a long standing rule that the silence of an accused should not
be taken against him. But such rule is not without exception. In the early case of People
v. Resano, the Supreme Court explained that when the prosecution has established a
prima facie case, it may be necessary for the accused to take the stand to make a
complete destruction of the prosecution’s prima facie case, thus:
“But as herein earlier stated, he did not take the witness stand to personally refute the
charge and accusation against him. He, of course, has a right not to do so and his
failure and or refusal to testify shall not in any manner prejudice or be taken against
him. But where the prosecution has already established a prima facie case, more so
when the offense charged is grave and sufficient enough to send accused behind bars
for life or may even warrant the imposition of the supreme penalty of death, then in
order to meet and destroy the effects of said prima facie case and so as to shift the
burden of producing further evidence to the prosecution, the party making the denial
must produce evidence tending to negate the blame asserted to such a point that, if no
more evidence is given, his adversary cannot win the case beyond a reasonable doubt.
In such situation, it may be necessary for the accused to have a complete destruction
of the prosecution’s prima facie case, that he take the stand since no hardship will in
any way be imposed upon him nor advantage be taken of him. If he fails to meet the
obligation which he owes to himself, when to meet it is the easiest of easy things he
has to do, then he is hardy indeed, if he demands and expects that same full and wide
consideration which the state voluntarily gives to those who, by reasonable effort seek
to help themselves.”
It is crucial to emphasize that the Court, in its Order dated 15 November 2019 denying
the Demurrer to the Prosecution’s Evidence filed by all the accused, already ruled that
the evidence for the prosecution was able to establish a prima facie case against herein
accused. Notwithstanding such ruling, both Santos, Jr. and Ressa did not testify to
rebut the prosecution’s evidence.
CORPORATE LIABILITY OF RAPPLER, INC.

As to the liability of Rappler, Inc., Section 9 of RA No. 10175 provides for instances
when a corporation may be held liable for purposes of paying a fine, thus:
SECTION 9. Corporate Liability. — When any of the punishable acts herein defined are
knowingly committed on behalf of or for the benefit of a juridical person, by a natural
person acting either individually or as part of an organ of the juridical person, who has
a leading position within, based on: (a) a power of representation of the juridical person
provided the act committed falls within the scope of such authority; (b) an authority to
take decisions on behalf of the juridical person: Provided, That the act committed falls
within the scope of such authority; or (c) an authority to exercise control within the
juridical person, the juridical person shall be held liable for a fine equivalent to at least
double the fines imposable in Section 7 up to a maximum of Ten million pesos
(PhP10,000,000.00).
If the commission of any of the punishable acts herein defined was made possible due
to the lack of supervision or control by a natural person referred to and described in the
preceding paragraph, for the benefit of that juridical person by a natural person acting
under its authority, the juridical person shall be held liable for a fine equivalent to at
least double the fines imposable in Section 7 up to a maximum of Five million pesos
(PhP5,000,000.00).
The liability imposed on the juridical person shall be without prejudice to the criminal
liability of the natural person who has committed the offense.
Based on the foregoing provision, a corporation may be held liable for purposes of fine
if the following concur:
1. When any of the punishable acts are knowingly committed on behalf of or for the
benefit of a juridical person;
2. Said act is committed by a natural person acting individually or as part of an organ
of the juridical person, who has a leading position within; and
3. The position of the natural person is based on (a) the power of representation of the
juridical person provided the act committed falls within the scope of such authority; (b)
an authority to take decisions on behalf of the juridical person; or (c) an authority to
exercise control within the juridical person.
The prosecution, in this regard, failed to prove the corporate liability of Rappler, Inc.
under Section 9 of R.A. 10175. The prosecution failed to establish the above-
enumerated elements.
Aside from the fact that it was not alleged in the information, the prosecution never
attempted to adduce evidence to impute any corporate liability on Rappler, Inc.; thus,
Rappler, Inc. cannot be held liable for payment of a fine under the Cybercrime
Prevention Act of 2012.
AS TO THE AWARD OF DAMAGES
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The fact that there is no allegation of damages in the information is of no legal
consequence. Every person criminally liable for a felony is also civilly liable. It has,
therefore, been held that even if the information is silent as to damages, the offender is
still liable for them, unless a waiver or the reservation of the civil action is made.
Here, Keng did not waive or reserve his right to file a separate civil action but he actually
intervened in the instant criminal action by securing the services of three (3) private
prosecutors, which was not objected to by the defense. It is elementary that where the
civil action for recovery of civil liability is instituted in the criminal action pursuant to Rule
111, the offended party may intervene by counsel in prosecution of the offense.
Generally, a criminal case has two aspects, the civil and the criminal. This notion is
rooted in the fundamental theory that when a criminal act is committed, two (2) different
entities are offended: (1) the State, whose law has been violated; and (2) the person
directly injured by the offender’s act or omission.
While an act or omission is felonious because it is punishable by law, it gives rise to
civil liability not so much because it is a crime but because it caused damage to another.
Viewing things pragmatically, we can readily see that what gives rise to the civil liability
is really the obligation and the moral duty of everyone to repair or make whole the
damage caused to another by reason of his own act or omission, done intentionally or
negligently, whether or not the same be punishable by law. In other words, criminal
liability will give rise to civil liability only if the same felonious act or omission results in
damage or injury to another and is the direct and proximate cause thereof.
MORAL DAMAGES
Moral damages is the amount awarded to a person who have experienced physical
suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded
feelings, moral shock, social humiliation, and similar injury. It is given to ease the
victim’s grief and suffering, and should reasonably approximate the extent of the hurt
caused and the gravity of the wrong done.
The amount of moral damages that courts may award depends upon the set of
circumstances for each case. There is no fixed standard to determine the amount of
moral damages to be given. Courts are given the discretion to fix the amount to be
awarded in favor of the injured party, so long as there is sufficient basis for awarding
such amount.
In the case at hand, Keng maintains that he is entitled to moral damages in the amount
of Php25,000,000.00. He avers that he suffered serious anxiety, sleepless nights and
mental anguish because Rappler and the accused ruined his reputation. He and his
family have been publicly ridiculed and judged, and his reputation as a businessman
has been unjustly tarnished. Also, he argues that the loss of his eldest daughter in the
election was due to the statements published by the accused. Moreover, since the
article was published, he can feel a lingering doubt among his colleagues and
associates on whether said article was true. He claims that he also noticed a slight
difference in the way he has been treated since then and he gained notoriety.

This Court recognizes the pain and suffering of Keng and finds his testimony credible.
The Court acknowledges the injury inflicted on his reputation as a businessman. As a
president of publicly-listed corporations it may create a negative impact on his image if
he has been regarded as murderer, human trafficker, drug-dealer and smuggler. It
could discourage other businessmen to conduct business with him.
The Court also gives weight and credibility on the testimony of Keng on the suffering
inflicted by the publication dated 19 February 2014 on his family especially his
daughters. Considering the imputations made upon the person of Keng, his wife and
his two (2) daughters have been ridiculed and judged by friends and acquaintances
and labelled as associated with drug lords and smugglers.
In the case of Tulfo v. People, the Court finds that the sense of kinship runs deeply in
a typical Filipino family, thus:
“The Court can perhaps take judicial notice that the sense of kinship runs deeply in a
typical Filipino family, such that the whole family usually suffers or rejoices at the
misfortune or good fortune, as the case may be, of any of its member. Accordingly, any
attempt to dishonor or besmirch the name and reputation of the head of the family, as
here, invariably puts the other members in a state of disrepute, distress, or anxiety.
This reality adds an imperative dimension to the award of moral damages to the
defamed party.”
As such, an award Php200,000.00 as moral damages is only proper and should be
awarded to Keng.
EXEMPLARY DAMAGES
Exemplary damages should also be awarded to Keng.
Exemplary or corrective damages are imposed, by way of example or correction for the
public good, in addition to the moral, temperate, liquidated or compensatory damages.
It is imposed as a punishment for highly reprehensible conduct and serves as a notice
to prevent the public from the repetition of socially deleterious actions. Such damages
are required by public policy, for wanton acts must be suppressed. They are an antidote
so that the poison of wickedness may not run through the body politic.
As above-discussed, both accused published the libelous article without first verifying
the truth of the allegations therein. Despite the fact that Atty. De Vera pointed out the
inaccuracies in the statements contained in the article and the receipt by Vitug of the
PDEA certification showing that Keng has no derogatory records relating to drugs,
which would have raised doubts as to the veracity of the statements in the article, both
accused did not bother to publish the clarificatory article drafted by Francisco.
Thus, to ensure that this conduct will no longer be repeated, an award of
Php200,000.00 as exemplary damages is warranted.
ATTORNEY’S FEES
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The Court cannot award attorney’s fees in favor of Keng for lack of factual basis,
considering that the prosecution failed to offer any proof of expenses incurred by Keng
in securing the services of lawyers.
A FINAL NOTE
The right of every person to freedom of speech is a right guaranteed by our
Constitution. It is a right to speak freely without fear of retribution or retaliation. The right
of the press to freely report news and opinion without undue restraint is guaranteed no
less. These rights are imbued with vast powers to advance the COMMON GOOD, TO
EFFECT change and influence the minds of others IN THE HOPE OF BUILDING A
SOCIETY where every person can be free. But when abused, THIS FREEDOM can
SOW animosity and ENGENDER divisiveness and resentment THAT MAY LEAD TO
disorder and chaos.
In the case of Tulfo v. People, no less than our Supreme Court has acknowledged the
influence the press has in our community and society when it declared that:
“The press wields enormous power. Through its widespread reach and the information
it imparts, it can mold and shape thoughts and opinions of the people. It can turn the
tide of public opinion for or against someone, it can build up heroes or create villains.
It is in the interest of society to have a free press, to have liberal discussion and
dissemination of ideas, and to encourage people to engage in healthy debate. It is
through this that society can progress and develop.”
In the same decision, the Supreme Court recognized the responsibility that comes with
a free press by declaring that:
“Those who would publish under the aegis of freedom of the press must also
acknowledge the corollary duty to publish responsibly. To show that they have
exercised their freedom responsibly, they must go beyond merely relying on unfounded
rumors or shadowy anonymous sources. There must be further investigation
conducted, some shred of proof found to support allegations of misconduct or even
criminal activity. It is in fact too easy for journalists to destroy the reputation and honor
of public officials, if they are not required to make the slightest effort to verify
their accusations. Journalists are supposed to be reporters of facts, not fiction, and
must be able to back up their stories with solid research. The power of the press and
the corresponding duty to exercise that power judiciously cannot be understated.”
With the evolution of government and society, it has been accepted and established
that the exercise of the right to free speech and of the press is not absolute as it comes
with enormous responsibility to ensure that another person’s right is respected.
Today we live in an age of technology providing limitless avenues in the exercise of this
right to free speech. The internet has allowed us to express our ideas and opinions to
an audience way beyond our borders. With a single click of a button or touch of a screen
a post, blog, opinion or article written on the internet can be seen by hundreds or
thousands in just a few minutes or even seconds. Technology has empowered speech
in ways we never imagined before.

With technology, the pressing question of whether the exercise of the right to free
speech is absolute once more comes to fore. Time and again this issue has been put
at the center of heated debates and endless discussions. Can a person speak freely or
write an article or opinion without being held accountable for what he or she has written
or said? Can this right be invoked at all times even if a person has trampled upon the
rights of another?
In the recent case of Tulfo v. People, the Supreme Court emphasized:
“Among the advantages brought by modern technology is the ease by which news can
be shared and disseminated through different social media outlets. News matters are
now simultaneously cascaded in real-time. Society is swamped with a myriad of
information involving a wide array of topics. News dissemination has always been in a
constant state of flux. Occurrences across the globe, or the lack thereof, are
immediately subject of the news written by journalists.
More often than not, journalists are at the forefront of information publication and
dissemination. Owing to the nature of their work, they have the prerogative to shape
the news as they see fit. This Court does not turn a blind eye to some of them who twist
the news to give an ambiguous interpretation that is in reckless disregard of the truth.
In the same case, the Supreme Court stressed that:
“Crafting inaccurate and misleading news is a blatant violation of the Society of
Professional Journalists Code of Ethics. The Society of Professional Journalists is a
journalism organization dedicated toward stimulating high standards of ethical
behavior, promoting the free flow of information vital to a well-informed citizenry, and
inspiring and educating current and future journalists through professional
development. Its Code of Ethics espouses the practice that journalism should be
accurate and fair, and mandates accountability and transparency in the profession.
As such, journalists should observe high standards expected from their profession.
They must take responsibility for the accuracy of their work, careful never to deliberately
distort facts or context by verifying information before releasing it for public
consumption.
This case comes at a time when the credibility of journalists is needed more than ever,
when their tried-and-tested practice of adhering to their own code of ethics becomes
more necessary, so that truth may provide a stronger bulwark against the recklessness
in social media. Respondents, then, should have been more circumspect in what they
published.”
Indeed, the Constitution guarantees freedom of expression and of the press. But this is
a freedom burdened with responsibility for even the Journalists’ Code of Ethics exhorts
all journalists to “recognize the duty to air the other side and the duty to correct
substantive errors promptly.”
Here, Rappler and both accused did not offer a scintilla of proof that they verified the
imputations of various crimes in the disputed Article upon the person of Keng apart
from a sweeping and unexplained reference to a purported “intelligence report” and a
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“2002 Philippine Star Report”. They did not verify the veracity of these alleged reports
at all. They just simply published them as news in their online publication in reckless
disregard of whether they are false or not and with sheer indifference of its impact upon
the reputation of Keng.
What further militates against the defense of both accused is that Keng pleaded to them
to publish a clarificatory article, or at the very least, to air his side of the story. As stated
earlier, they did not.
Let it be noted that Keng did not just peremptorily institute this criminal case against
both accused. He reached out to the news organization and asked them to air his side
of the story in accordance with the ethics of their profession as journalists. For close to
seven (7) months, private complainant Keng, thru his lawyer Atty. De Vera, negotiated
with Rappler which culminated in the preparation of a clarificatory article by one of their
writers. Yet again, both accused did nothing
Having exhausted all avenues to reach an acceptable resolution of this dispute, Keng
had no other recourse but to protect and vindicate his rights and reputation by filing the
instant criminal action before the courts of justice. After the prosecution established a
prima facie case for online libel against both accused, both accused opted not to testify
so their side can be heard.
Thus, the court is mandated to decide solely on the basis of the evidence presented by
the parties and to apply the law. No more, no less.
The right to free speech and freedom of the press cannot and should not be used as a
shield against accountability. The law sets out parameters for this accountability. If a
person is found violating this law in accordance with the parameters it provides, then
he or she is penalized and will be held accountable.
The Courts are tasked to strike a balance between the enforcement of one’s right to
speak his mind and the protection of another’s right against defamation of his honor
and reputation without regard to the stature of the personalities involved. This is what
happened here.
As this Court is mandated to dispense justice, it shall do so not only to protect the Fourth
Estate’s freedom of expression and of the press, but also equally to protect the rights
of private individuals, such as Keng.
This case is not one involving the government or any of its officials as complainant. It
is simply a case filed by a private individual against a prominent online news
organization for malicious and defamatory imputations upon his person. He pleaded for
justice after being maliciously and publicly branded in the worldwide web as a human
trafficker, a drug and contraband smuggler, and worst, a murderer.
With the internet and social media pervading this day and age, it can be said that the
keyboard is now mightier than the pen and thus mightier than the sword. The proverbial
admonition “to think before you click” becomes even more relevant when it comes to
online news organizations with a vast plantilla of journalists under its employ.
 127

If a private individual, a so-called “netizen”, can be held accountable for any defamatory
posts or comments in the internet, so too must accountability and journalistic
responsibility be brought to bear upon online news organizations since the extent of its
influence, as powered by the internet, goes beyond the physical limitation of printed
publications.

THERE IS NO CURTAILMENT OF THE RIGHT TO FREEDOM OF SPEECH AND OF

THE PRESS. Each person, journalist or not has that constitutionally guaranteed right
to freely express, write and make known his opinion. But with the highest ideals in mind
what society expects is a RESPONSIBLE FREE PRESS. It is in ACTING
RESPONSIBLY that freedom is given its true meaning.

The exercise of a freedom should and must be used with due regard to the freedom of
others. As Nelson Mandela said “for to be free is not merely to cast off one’s chains but
to live in a way that respects and enhances the freedom of others.”

WHEREFORE, premises considered, judgment is hereby rendered finding

accused REYNALDO SANTOS, JR. and MARIA ANGELITA RESSA GUILTY beyond
reasonable doubt for Violation of Section 4 (C)(4) of Republic Act No. 10175 or the
Cybercrime Prevention Act of 2012 and are each hereby sentenced to suffer the
indeterminate penalty of imprisonment ranging from SIX (6) MONTHS and ONE (1)
DAY of prision correccional as MINIMUM to SIX (6) YEARS of prision correccional
as MAXIMUM.

Both accused REYNALDO SANTOS, JR. and MARIA ANGELITA RESSA are,
likewise, ordered to pay private complainant Wilfredo Keng, jointly and severally, the
following:

1. TWO HUNDRED THOUSAND PESOS (Php200,000.00) as

and by way of MORAL DAMAGES

2. TWO HUNDRED THOUSAND PESOS (Php200,000.00) as

and by way of EXEMPLARY DAMAGES.

As to the corporate liability of RAPPLER INCORPORATED, the Court hereby finds NO

CORPORATE LIABILITY under Section 9 of Republic Act No. 10175.

The Motion of the United Nations Special Rapporteur on the Promotion and Protection
of the Right to Freedom of Opinion and Expression for Leave to File Amicus Curiae
Brief filed by David Kaye, thru Felix J. Mariñas, Jr. is only NOTED.

SO ORDERED

Promulgated on June 15, 2020 Manila, Philippines.

RAINELDA H. ESTACIO-MONTESA, Presiding Judge