HPS SOFTWARE V.

PLDT
(G.R. No. 170217, December 10, 2012)
Access Devices Regulation Act of 1998
FACTS:

This case involves a complaint for an issuance of search warrant to HPS Corporation for Violation of Article
308 of the Revised Penal Code and Theft of Telephone Services and violation of P.D. 401 for unauthorized
installation of telephone communication equipment. The witnesses testified that the Mabuhay Card (used
for international outgoing calls) were being reflected only as local calls and upon verification the card was
registered to Philip Yap whose address is the HPS Software Corporation. After evidence was presented,
the trial court issued two search warrants for violation of Art. 308 of the RPC and P.D. 401, which were
immediately carried out by the police. The Joint Order directs the PNP-Special Task Force Group-Visayas
to retrieve possession and custody of all seized items pending to PLDT.

Philip Yap then filed a Motion to Squash and suppressed the seized evidence on the basis that they did not
have any probable cause and were served as general warrants. The same court granted Motion to Quash
that directed to return the seized items at once to HPS Corporation.

PLDT filed a petition for certiorari under Rule 65 with the CA assailing the decision of the release of
equipment despite the fact that the Joint Order was not yet final. The court granted said petition insofar as
it released the item seized.

ISSUE:
(1) Whether the activity referred to as "international simple resale" (ISR) is considered a criminal act of
Theft in this jurisdiction.
(2) Whether PLDT has the legal personality to file the petition for certiorari without the consent or
approval of the Solicitor General.
(3) Whether PLDT’s petition for certiorari should have been dismissed since no motion for reconsideration
was filed by PLDT from the assailed joint order.
(4) Whether PLDT committed forum shopping.
(5) Whether two (2) search warrants were improperly squashed.
(6) Whether the subject search warrants are in the nature of general warrants.
(7) Whether the release of items seized by virtue of the subject search warrants was proper.

RULING:
(1) YES
(2) YES
(3) NO
(4) NO
(5) NO
(6) NO
(7) NO
RATIO:
(1) In Laurel v. Abrogar, the SC en banc ruled that telecommunication or telephone service could be an
object of theft. The SC said:

The acts of "subtraction" include: (a) tampering with any wire, meter, or other apparatus installed or
used for generating, containing, conducting, or measuring electricity, telegraph or telephone
service; (b) tapping or otherwise wrongfully deflecting or taking any electric current from such wire,
meter, or other apparatus; and (c) using or enjoying the benefits of any device by means of which
one may fraudulently obtain any current of electricity or any telegraph or telephone service.

In the Laurel case, the act of conducting ISR operations by illegally connecting various equipment
or apparatus to private respondent PLDT’s telephone system, through which petitioner is able to
resell or reroute international long distance calls using respondent PLDT’s facilities constitutes all
three acts of subtraction mentioned above.

The business of providing telecommunication or telephone service is likewise personal property

which can be the object of theft under Article 308 of the Revised Penal Code. Business may be
appropriated under Section 2 of Act No. 3952 (Bulk Sales Law), hence, could be the object of theft.

Moreover, although Business is not enumerated as personal property under the civil code, it may be
appropriated since it is not expressly enumerated under Art. 415, real properties, and following past rulings,
(Strochecker vs. Ramirez) business should be classified under personal property.

Plainly, from the aforementioned doctrinal pronouncement, this Court had categorically stated and still
maintains that an ISR activity is an act of subtraction covered by the provisions on Theft, and that the
business of providing telecommunication or telephone service is personal property , which can be the object
of Theft under Article 308 of the Revised Penal Code.

(2) Unlike an ordinary criminal action, what is involved in this case is a search warrant proceeding, which is
not a criminal action but a special criminal proceeding. In ordinary criminal action, the participation and
conformity of the City Prosecutor is required. The case Malaloan v. Court of Appeals, warrants are
considered by the court as a process, issued by the court in its ancillary jurisdiction and not a criminal
action to be entertained by the court. With all these, we can say that Section 5, Rule 110 of the Rules on
Criminal Procedure that requires the direction and control of a public prosecutor does not apply.

(3) The court considers that there was proper filing of the petition because of the peculiar circumstances
obtained in this case despite the non-fulfillment of the requirement of the filing of a motion for
reconsideration. The general rule is that a motion for reconsideration is a condition sine qua non before a
petition for certiorari may lie but such rule is not absolute as jurisprudence shows. One of which is when the
petitioner was deprived of due process and there is extreme urgency for relief, apparent in the PLDT’s
situation. This is when the trial court expeditiously released the items without waiting for PLDT to file its
memorandum.
(4) There is forum shopping when, between an action pending before the court and another one, there
exists (1) identity of parties, or at least such parties as represent the same interests in both actions; (2)
identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (3) the
identity of the two preceding particulars is such that any judgment rendered in the other action will,
regardless of which party is successful, amount to res judicata in the action under consideration; said
requisites also constitutive of the requisites for auter action pendant or lis pendens. In this case forum
shopping cannot be considered because the appeal that PLDT elevated to the CA examines the validity of
the trial court’s action on quashing the search warrant while the other is a petition for certiorari is an inquiry
whether the trial court committed grave abuse when he ordered the release seized items.

(5) The court is impressed with the merit of the argument of PLDT that stresses that probable cause is the
requisite in holding a search warrant valid. Probable cause requires facts and circumstances that would
lead a reasonably prudent man to believe that an offense has been committed. In the case of Microsoft
Corporation v. Maxicorp, Inc., the court held that the quantum of evidence needed to establish probable
and proof beyond reasonable doubt is different—as the former is concerned with probability, not absolute
or even moral certainty. The pieces of evidence are more than sufficient to support a finding were indeed
made by PLDT’s witness using Mabuhay card and the probable cause necessary to engender a belief that
HPS Corporation had probably committed the crime of Theft.

(6) A search warrant must particularly describe the place to be searched and persons or things to be seized
otherwise it is considered to be general and of no effect. In certain cases, it is only required that it be
specific as far as the circumstances allow. The search warrants served were not general warrants as it
sufficiently identified physically and specifically the violations and the offenses charged.

(7) Clearly in this case the release of the seized items was enforced prematurely and without any previous
motion for execution on record since it should be done upon the expiration of the period to appeal and if no
appeal has been duly perfected. In this case, the Joint Order dated May 23, 2001 was not yet final and
executory when it was implemented and a motion for execution filed by the interested party (HPS) was
clearly lacking.