SPECIAL PENAL LAWS

                                                    SPECIAL PENAL LAWS

SUPPLEMENTAL READING MATERIALS

 

ANTI-GRAFT AND CORRUPT PRACTICES ACT (R.A. NO. 3019, AS AMENDED)

 

Q: What s the purpose of the Anti-Graft Law?

 

A: It was enacted under the police power of the State to promote morality in the public service.

 

Q: What is the policy behind the enactment of the Anti-Graft and Corrupt Practices Act?

 

A: It was enacted to deter public officials and employees from committing acts of dishonesty and improve the tone of morality in the public service.  It was declared to be a state policy “in line with principle that a public office is a public trust, to repress certain acts of public officers and private persons alike which constitute graft of corrupt practices or which may lead thereto.

 

Q: Is it necessary that the accused acted for a consideration and had intended to obtain personal gain or advantage?

 

A: In the absence of any allegation or proof that the accused so acted for a consideration, payment or remuneration and that he intended to obtain personal gain, enrichment or advantage, the accused may not be convicted of violating par. (a), Sec. 3 of RA No. 3019.

 

Q: Is a preliminary investigation conducted by a public prosecutor a contract or transaction under Section 3 (b) of RA No. 3019?

 

A: A preliminary investigation of a criminal complaint conducted by a public prosecutor is not a “contract or transaction” so as to bring it within the ambit of Section 3 (b) of RA No. 3019.  A transaction, like a contract, is one which involves some consideration as in credit transactions and the element of consideration is absent in a preliminary investigation of a case.

 

Q: What is the interpretation of the last sentence of section 3 (e) of RA No. 3019?

 

A: Section 3 enumerates the subsections the corrupt practices of any public officer declared unlawful.  Its reference to “any public officer” is without distinction or qualification and it specifies the acts declared unlawful.  We agree with the view adopted by the Solicitor General that the last sentence of paragraph (e) is intended to make clear the inclusion of officers and employees of offices or government corporations which, under the ordinary concept of “public officers” may not come within the term.  It is a strained construction of the provision to read it as applying exclusively to public officers charged with the duty of granting license or permits or other concessions.

 

Q: Who are the persons liable under Sec. 3 (g) of RA No. 3019?

 

A: The person liable under this provision is any public officer who has the duty under the law to enter, on behalf of the Government, into any contract or transaction with any person.

        The act constituting the crime is entering into such contract or transaction manifestly and grossly disadvantageous to the Government.

        It is not necessary that the public officer profited or will profit thereby.

        Under Section 3 (g) of RA No. 3019, it is enough to prove that the accused is a public officer; that he entered into a contract or transaction on behalf of the government; and that such contract or transaction is grossly and manifestly disadvantageous to that government.  In other words, the act treated there under partakes of the nature of a malum prohibitum, it is the commission of that act as defined by law, not the character or effect thereof, that determines whether or not the provision has been violated.

 

Q: What is contemplated in Section 3  of RA No. 3019?

 

A: What is contemplated in Section 3  of the anti-graft law is the actual intervention in the transaction in which one has financial or pecuniary interest in order that liability may attach.  The official need not dispose his shares in the corporation as long as he does not do anything for the firm in its contract with the office.  The law aims to prevent the dominant use of influence, authority and power.

 

Q: What are the exceptions to the provisions of Section 5 of RA No. 3019?

 

A: They are:

1.  Any person who, prior to the assumption of office of any of those officials to whom he is related, has been already dealing with the Government along the same line of business, nor to any transaction, contract or application already existing or pending at the time of such assumption of public office;

2.  Any application filed by him, the approval of which is not discretionary on the part of the official or officials concerned but depends upon compliance with the requisite provided by law, or rules or regulations issued pursuant to law;

3.  Any act lawfully performed in an official capacity or in the exercise of a profession.

 

Q: Are all the penalties prescribed in Section 9 of RA No. 3019 imposable on a private person?

 

A: Section 9 mentions the penalties with which “any public officer or private person” may be punished for committing any of the unlawful acts or omissions enumerated in Sections 3, 4, 5 and 6 of Rep. Act No. 3019.  However, “perpetual disqualification from public office, and confiscation or forfeiture in favour of the government of any prohibited interest and unexplained wealth” can hardly be imposed on a private person.

        It is believed that as regards a private person, only the penalty of imprisonment “for not less than six years and one month or not more than fifteen years” may be imposed.

 

Q: Is the suspension spoken of in Section 13 of RA No. 3019 automatic?

 

A: The suspension spoken of in Section 13 f RA No. 3019 follows the pendency in court of a criminal prosecution under a “valid information”.  Adherence to this rigoristic requirement funnels us down to no other conclusion than that there must, first of all, be a determination that the information filed is valid before suspension can be effected.  This circumstance militates strongly against the notion that suspension under Section 13 is automatic.  Suspension is, however, mandatory.  The word “shall” used in Section 13 is an express index of this conclusion.  In other words, the suspension envisioned in Section 13 of RA No. 3019 is mandatory but is not self-operative.  That is to say, that there must be someone who shall exercise the act of suspension.

 

Q: What is the meaning of the word “acquitted” in Section 13 of RA No. 3019?

 

A: It is obvious that when the statute speaks of the suspended official being “acquitted”, it means that after due hearing and consideration of the evidence against him, the court is of the opinion that his guilt has not been proven beyond reasonable doubt.  Dismissal of the case against the suspended officer will not suffice because dismissal does not amount to acquittal.

 

Q: Are courts bound by the statement of assets (SAL) filed b y the accused?

 

A: No, the courts are not bound by the SAL filed in determining whether there is unexplained wealth.  The statute affords the respondent every opportunity to explain, to the satisfaction of the court, how he had acquired the property in question.

 

Q: Section 3 (e) penalizes any act which causes undue injury to any party, including the Government, or giving any private party any unwarranted benefits in the discharge of his official, administrative or judicial functions, through manifest partiality, evident bad faith or gross inexcusable negligence.  Is bad faith or negligence enough to convict an accused?

 

A: No.  Bad faith per se is not enough; it must be evident.  Bad faith does not simply connote bad moral judgment or negligence.  It partakes of the nature of fraud.  Gross negligence is characterized by the want of even slight care, acting or omitting to act in a wilful or intentional manner displaying a conscious indifference to consequences as far as other persons may be affected.

        It must be stressed that it is good faith, not bad faith, which is presumed, as the chapter on Human Relations of the Civil Code directs every person to observe good faith, which springs from the fountain of good conscience.

 

Q: What are the elements of Sec. 3 (e)?

 

A: The following are the elements:

 

1.  That the accused are public officers or private persons charged in conspiracy with them;

2.  that said public officers committed the prohibited acts during the performance of their official duties or in relation to their public positions;

3.  that they caused undue injury to any party, whether the Government or a private party;

4.  that such injury was caused by giving unwarranted benefits, advantage or preference to such parties; and

5.  that the public officers acted with manifest partiality, evident bad faith or gross inexcusable negligence.

 

Q: Sec. 3  of the Anti-Graft Law punishes a public officer who has financial or pecuniary interest in any business in connection with which he intervenes in his official capacity.  Senator A owns shares in a corporation which was awarded a contract by the government.  Is he required to dispose of his shares so as not to be held liable under this section?

 

A: No.  Senator A need not dispose his shares in the corporation so long as he does not do anything for the firm in its contract with the office.  What the law aims to prevent is the dominant use of influence, authority and power.  Actual intervention is required.

 

Q: What is the maximum duration of the preventive suspension of a public officer charged under this Act?

 

A: Ninety days (P.D. No. 807).

 

Q: A, BIR examiner, was undertaking an examination of the tax liability of X under his 2010 income tax returns.  When X learned that the examiner’s daughter who had just returned Canada was going to be married, he sent through the examiner, a 35-inch HD television set as his wedding gift.  What crime or crimes, if any, did the examiner and/or X commit?

 

A: A and X are both guilty of violating Section 3 (b) of RA No. 3019, “by direct or indirectly requesting or receiving any gift, share, percentage, or benefit for himself or for any other party, wherein the public officer in his capacity has to intervene under the law x x x.” The person giving the gift, present, percentage or benefit referred to in paragraphs (b) and (c) or offering or giving to the public officer the employment, shall together with the offending public officer shall be punished.

 

Q: Teacher A received payments from other teacher for the release of their salary differentials.  He was accused of having committed a violation of RA 3019 specifically Section 3 paragraph (b).  Will the case prosper?

 

A: No.  There is no law which invests A with the power to intervene in the payment of the salary differentials of the complainants or anyone for that matter.  Far from exercising any power, she played the humble role of a supplicant whose mission was to expedite payment of salary differentials.  In his official capacity as assistant principal, he is not required by law to intervene in the payment of salary differentials.  Accordingly, he cannot be said to have violated the law afore-cited although he exerted efforts to facilitate the payment of salary differentials.  Sec. 3 (b) of RA 3019 refers to a public officer whose official intervention is required by law in a contract or transaction.

 

Q: To convict the accused of violating Section 3 (e) of RA 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, the following elements must concur: (1) the accused must be a public officer discharging administrative, judicial or official functions; (2) he must have acted with manifest partiality, evident bad faith or gross inexcusable negligence; and (3) that his action caused undue injury to any party, including the government, or giving any private party unwarranted benefits, advantage or preference in the discharge of his functions.  Can private individuals commit a violation of Section 3 (e) of RA No. 3019?

 

A: Yes.  Private persons, when acting in conspiracy with public officers, may be indicted and, if found guilty, held liable for the pertinent offenses under Sec. 3 of RA 3019.

 

Q: What is undue injury caused to any party defined in Section 3 (e) of RA 3019?

 

A: Undue injury caused to any party, including the government, under Section 3 (e) of RA 3019, could only mean actual injury or damage which must be established by evidence.

 

Q: After his arraignment, the prosecution filed a motion for his suspension pendente lite, to which X filed an opposition claiming that he can no longer be suspended as he is no longer an employee of the PNB but that of the PDIC.  Explain whether he may or may not be suspended.

 

A: X may still be suspended pendente lite despite holding a different public office, the PDIC, when he was charged.  The term “office” in Section 13 or RA No. 3019 applies to any office which the officer might currently be holding and not necessarily the office or position in relation to which he is charged.

 

Q: May a public officer charged under Section 3 (b) of Republic Act No. 3019 (directly or indirectly requesting or receiving any gift, present, share, percentage or benefit, for himself or for any other person, in connection with any contract or transaction between the government and any other party, wherein the public officer in his official capacity has to intervene under the law) also be simultaneously or successively charged with direct bribery under the Revised Penal Code?

 

A: Yes.  The two crimes, though similar in some aspects, are composed of different acts.  Direct bribery is committed when a public officer accepts a gift or promise to either do something contrary to law, do something not contrary to law but unjust all the same, or fail to do something which he should have done, all in connection with his office.  In the crime punished under Sec. 3 (b) of RA 3019, none of these three acts have to be committed for one to be found guilty.  It is enough that he receives a gift or promise in consideration for any transaction in which he intervenes as an official.  He does not have to do anything illegal, unjust, or refrain from doing something he was supposed to do.

 

Q: What is the prescriptive period provided under the new law, Republic Act No. 10910 (An Act Increasing the Prescriptive Period for Violations of RA 3019)?

 

A: Section 11 of the new law provides that all offenses punishable under this Act shall prescribe in 20 years. (NB the old law provided for a prescriptive period of 15 years)

 

Q: Does re-election in public office extinguishes the administrative liability as well as the criminal liability f the offender?

 

A:  Re-election of a public official extinguishes only the administrative, but not the criminal liability incurred by him during his previous term of office.  Thus, “when the people have elected a man to his office it must be assumed that they did this with knowledge of his life and character and that they disregarded or forgave his faults or misconduct if he had been guilty of any” refers only to an action for removal from office and does not apply to criminal case, because a crime is a public wrong more atrocious in character than mere misfeasance or malfeasance committed by a public officer in the discharge of his duties, and is injurious not only to a person or group of persons but to the State as a whole.

 

Cases:

1.  Morfe v. Mutuc, 22 SCRA 424

2.  Soriano v. Sandiganbayan, 131 SCRA 184

3.  Mejorda v. Sandiganbayan, 151 SCRA 399

4.  Luciano v. Estrella, 34 SCRA 769

5.  Trieste, Sr. v. Sandiganbayan, 145 SCRA 508

6.  Republic v. Intermediate Appellate Court, 172 SCRA 296

7.  Luciano v. Provincial Governor, 28 SCRA 517

8.  Noromor v. Mun. of Oras, Samar, 7 SCRA 405

9.  People v. Albano, 163 SCRA 511

10. Deloso v. Sandigaanbayan, 173 SCRA 409

11. Malanyaon v. Lising, 106 SCRA 237

12. Almeda, Sr. v. Perez, etc., 5 SCRA 970

13. Cabal v. Kapunan, Jr., 6 SCRA 1059

14. Katigbak v. Solicitor General, 180 SCRA 540 

 

 

 

ANTI-FENCING LAW OF 1979 (PRESIDENTIAL DECREE NO. 1612)

 

Sec. 2. Definition of Terms. – The following terms shall mean as follows:

a.   “Fencing” is the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft.

b.  “Fence” includes any person, firm, association, corporation or partnership or other organization who/which commits the act of fencing.

 

Sec. 3. Penalties. – Any person guilty of fencing shall be punished as hereunder indicated:

a.   The penalty of prision mayor, if the value of the property involved is more than P12,000 but not exceeding P22,000; if the value of such property exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one (1) year for each additional P10,000, but the total penalty which may be imposed shall not exceed twenty years.  In such cases, the penalty shall be termed reclusion temporal and the accessory penalty pertaining thereto provided in the Revised Penal Code shall also be imposed.

b.  The penalty of prision correccional in it medium and maximum periods, if the value of the property robbed or stolen is more than P6,000 but not exceeding P12,000.

c.   The penalty of prision correccional in its minimum and medium periods, if the value of the property involved is more than P200 but not exceeding P6000.

d.  The penalty of arresto mayor in its medium period to prision correccional in its minimum period, if the value of property involved is over P60 but not exceeding P200.

e.   The penalty of arresto mayor in its medium period if such value is over P5 but not exceeding P50.

f.    The penalty of arresto mayor in its minimum period, if such value does not exceed P5.

 

Sec. 4. Liability of Officials of Juridical Persons. – If the fence is a partnership, firm, corporation or association, the president or the manager or any officer thereof who knows or should have known the commission of the offense shall be liable.

 

Sec. 5. Presumption of Fencing. – Mere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing.

 

Sec. 6. Clearance/Permit to Sell Secondhand Articles. – For purposes of this Act, all stores, establishments or entities dealing in the buy and sell of any good, article, item, object or 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 (now Philippine 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 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 there under shall upon conviction be punished as fence.

 

Q: What is fencing?

 

A: Fencing is the act of any person who, with intent to gain for himself or another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell or in any other manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft.

 

Q: What are the elements of the crime of fencing?

 

A: They are:

1.  The crime of robbery or theft has been committed.

2.  The accused, who is not a principal or accomplice in the commission of the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which has been derived from the proceeds of the said crime.

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.

4.  There is, on the part of the accused, intent to gain for himself or another.

 

Q: What is the presumption on the crime of fencing?

 

A: Mere possession of any good, article, item, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing.

 

N.B. The crimes of robbery and theft, on the one hand, and fencing, on the other, are separate and distinct offenses.

 

        Before P.D. No. 1612, a fence could only be prosecuted for and held liable as an accessory, as the term is defined in Article 19 of the Revised Penal Code.  The penalty applicable to an accessory is obviously light under the rules prescribed in Articles 53, 55 and 57 of the Revised Penal Code, subject to the qualification set forth in Article 60 thereof.  Noting, however, the reports from law enforcement agencies that “there is rampant robbery and thievery of government and private properties and that such robbery and thievery have become profitable on the part of the lawless elements because of the existence of ready buyers, commonly known as fence, of stolen properties.”  P.D. No. 1612 was enacted to “impose heavy penalties on persons who profit by the effects of the crimes of robbery and theft”.  Evidently, the accessory in the crimes of robbery and theft could be prosecuted as such under the Revised Penal Code or under P.D. No. 1612.  However, in the latter case, he ceases to be a mere accessory but becomes a principal in the crime of fencing.  Else wise stated, the crimes of robbery and theft, on the one hand, and fencing, on the other, is separate and distinct offenses.  The state may thus choose to prosecute him either under the Revised Penal Code or P.D. No.1612, although the preference for the latter would seem inevitable considering that fencing is a malum prohibitum, and P.D. No. 1612 creates a presumption of fencing and prescribes a higher penalty based on the value of the property (Dizon-Pamintuan v. People, 234 SCRA 63).

 

 

SPECIAL PROTECTION OF CHILDREN AGAINST CHILD ABUSE, EXPLOITATION AND DISCRIMINATION ACT (R.A. NO. 7610)

 

 

Q: Define child abuse?

 

A: 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 by deeds or words 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.

 

Q: What are the elements of committing a violation of Section 5 (b) of R.A. No. 7610?

 

A: The following are the elements of said violation: (1) the accused commits the act of sexual intercourse or lascivious conduct; (2) the said act is performed with a child exploited in prostitution or subjected to other sexual abuse; (3) the child, whether male or female, is below 18 years of age.

        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.”

        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 (People v. Larin, October 7, 1998).

 

Q: Who are deemed to be children exploited in prostitution and other sexual abuse?

 

A: Those 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.

 

Q: Can children be employed as models for all kinds of commercials or advertisements?

 

A: No.  According to Section 14, no person shall employ child models n all commercials or advertisements promoting alcoholic beverages, intoxicating drinks, tobacco and its by-products and violence.

 

Q: Alden, of legal age, was a handsome man coming from a well-off family.  One night, during a house warming party of a family friend, he saw Menggay, a beautiful dalagita, about 15 years old.  Alden having his eyes on Menggay, approached the latter and with lewd designs, took the girl to a vacant lot, about 100 meters away from the house of his friend.  There in that vacant lot, he had sexual intercourse with Menggay.  The girl offered no resistance because she was smitten by the looks of Alden and she knew that the latter was from a known and well-off family.  Did Alden commit a crime?

 

A: Yes, Alden committed “child abuse” under R.A. No. 7610.  As defined under paragraph (b) subparagraph (2) of Section 5 of said law, “Child Abuse” is any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as human being.  Menggay is considered a child under paragraph (a) of the same section since she is a person below eighteen years of age.

 

Q: Mrs. Gabriela was a teacher and was known to be a strict one in Mababang Paaralan ng Borongan.  One pupil in her Grade 5 class, Sara, was apparently a slow-learner.  Sara consistently gets the lowest marks in her class and after the scores are announced,  Mrs. Gabriela would advise the class not to be like Sara who is “mahina sa klase” and “itlog sa mga quiz”.  Because of her remarks, Sara’s classmates made fun of her.  Sara told her parents about it and the latter filed a complaint against Mrs. Gabriela for child abuse.  However, Mrs. Gabriela contended that she only held those remarks once or twice and for it to be considered “child abuse”, it must be habitual.  Is Mrs. Gabriela correct?

 

A: Mrs. Gabriela is not correct.  According to Section 3 (b) of R.A. No. 7610, “Child Abuse” refers to a maltreatment, whether habitual or not x x x.”  Moreover, Mrs. Gabriela is guilty of child abuse based on (1) psychological and physical abuse x x x and emotional maltreatment” and (b) any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being”.

 

Q: Mr. and Mrs. Mamalas had been married for 10 years but despite trying every method available, could not conceive a child.  Desperate and longing for a child to call their own, they approached Marimar, a single mother who just recently gave birth to a baby boy.  The couple proposed that in exchange for P20,000.00, Marimar will bear the child and give the baby to them.  Marimar agreed as she herself admitted she cannot raise the baby.  Thereafter, Mr. and Mrs. Mamalas caused their names to be stated in the birth certificate of the baby as his parents.  Decide whether or not Mr. and Mrs. Mamalas and Marimar are criminally liable.

 

A: Yes, the childless couple, Mr. and Mrs. Mamalas, and the single mother, Marimar, being all involved in the simulation of birth of the newborn child, had violated R.A. No. 7610.  Their acts constituted child trafficking which are penalized under Article IV of said law.  Under Section 7 of said law, child trafficking refers to any person who shall engage in trading and dealing with children including, but not limited to, the act of buying and selling of a child for money, or for any other consideration, or barter.  In the present case, Marimar traded her son in exchange for P20,000.00 from Mr. and Mrs. Mamalas.

 

Q: C, a 4-year old child, disappeared while playing with other children in their neighbourhood in a subdivision in Quezon City.  The other children told E, C’s mother, that a woman (later identified to be D) took C (who resisted) and boarded a jeepney.  Several days later, E got information that a child was sold to a doctor in Rizal.  According to the doctor, D told her that the child (C) was her daughter and she had to give her away because she was already widowed and cannot take care of her four children.  D asked for P1,500 as a donation to enable her to open a small sari-sari store?  What crime was committed?

 

A: The crime committed is child trafficking under R.A. No. 7610 defined as engaging in trade and dealing with children including, but not limited to, the act of buying and selling of a child for money, or for any other consideration, or barter.

N.B. D can also be held liable for the crime of kidnapping.

 

 

BOUNCING CHECKS LAW (Batas Pambansa Bilang 22)

 

 

Q: Who is liable for bouncing checks?

 

A: One who draws or issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds or credit for payment of check in full and the check was dishonoured or drawer orders bank to stop payment without valid reason.

        A person has sufficient funds when he makes or draws check but fails to keep or maintain a credit to cover full amount within 90 days from date, and then the check was dishonoured.

 

Q: What are the significant periods in BP Blg. 22?

 

A: They are as follows:

1.  5 days – the maker must make arrangements to make good the checks to escape criminal liability.

2.  90 days – sufficient funds must be maintained to destroy prima facie presumption of knowledge of insufficiency of funds.

3.  180 days – the check becomes stale; no criminal action can arise.

 

Q: What is the gravamen of BP Blg. 22?

 

A: The gravamen of BP Blg. 22 is the issuance of a check, not the non-payment of the obligation.  The law has made the mere act of issuing a bum check a malum prohibitum.

 

Q: XYZ Bank granted a loan line of P5,000,000.00 to ABC Corporation.  Thereafter, ABC Corporation, through John, the Chief Finance Officer, issued five checks for the payment of its loan obligation.  When XYZ bank presented the checks, they were dishonoured for being “drawn against insufficient funds”.  The bank then sent notice of dishonour but despite demands, ABC Corporation refused to pay.  Can John, the one who signed the checks on behalf of the corporation, be held liable for violation of BP Blg. 22?  Explain.

 

A: Yes.  The fact that John signed the subject checks in behalf of ABC Corporation cannot exculpate him from civil or criminal liability.  Section of BP Blg. 22 provides that where the check was drawn by a corporation, company or entity, the person or persons, who actually signed the check in behalf of such drawer shall be liable.  When a corporate officer issues a worthless check in the corporate name, he may be held personally liable for violating a penal statute.  The statute imposes criminal penalties on anyone who draws or issues a check on any bank with knowledge that the funds are not sufficient in such bank to meet the check upon presentment (Navarra v. People, June 6, 2016).

 

Q: X asked financial support from Y who accommodated her by issuing in her favour a post-dated check in the sum of P90,000.00.  Both of them knew that the check would not be honoured because Y’s account had just been closed.  The two then approached trader Z whom they asked to change the check with case, even agreeing that the exchange be discounted at P85,000.00 with the assurance that the check shall be funded upon maturity.  Upon Z’s presentment of the check for payment on due date, it was dishonoured because the account had already been closed.  What is Z’s remedy?  Explain.

 

A: Y can be sued for violation of BP Blg. 22, otherwise known as the Bouncing Checks Law.  He knowingly drew a check which would be dishonoured because of his closed account, and this check was issued for value, since Z paid for it.  X cannot be held liable for the same act however, as BP Blg. 22 does not apply to endorsers of checks, but only drawers.

 

Q: A borrowed P500,000.00 from B.  A issued a post-dated check, to be presented for payment 30 days after the loan transaction.  Two days before maturity, A called B and told him not to deposit the check on the date stated on the face thereof as A has yet to deposit in the drawee bank the amount needed to cover the check.  B still deposited the check, which was dishonoured.  A failed to settle the amount covered by the check.  Is A guilty of violating BP Blg. 22?  Explain.

 

A: Yes.  What the law prohibits is the issuance of a check that is unsupported by funds.  Issuance is malum prohibitum.  The payee’s knowledge of insufficiency of funds is immaterial because deceit is not an element of BP Blg. 22, except when there was no intention to apply the check for account or for value.

 

Cases:

1.  Lozano v. Martinez, 146 SCRA 323

2.  People v. Laggui, 171 SCRA 305

3.  People v. Manzanilla, 156 SCRA 279

4.  Que v. People, 154 SCRA 160

5.  Eduardo Vaca v. Court of Appeals, 298 SCRA 656

6.  Rosa Lim v. People, September 18, 2000

7.  U.S. v. Capurro, et al., 7 Phil. 24

 

 

 

ANTI-VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ACT OF 2004 (Republic Act No. 9262)

 

Q: what is a protection order?

 

A: A protection order is an order issued for the purpose of preventing further acts of violence against a woman or her child and granting other necessary relief.  The relief serves the purpose of safeguarding the victim from further harm, minimizing any disruption in the victim’s daily life, and facilitating the opportunity and ability of the victim to independently regain control over her life.

 

Q: What are the different kinds of protection orders?

 

A: The protection orders that may be issued are the barangay protection order (BPO), temporary protection order (TPO) and permanent protection order (PPO).

 

Q: Explain Battered Woman Syndrome as a defense?

 

A: Victim-survivors who are found by the courts to be suffering from BWS do not incur any criminal and civil liability notwithstanding the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code.

        A victim who is suffering from battered woman syndrome shall not be disqualified from having custody of her children.

 

Q: Mr. Dimacabayad faces a criminal complaint for Violence Against Women and Children filed against him by Mrs. Dimacabayad in 2015.  The complaint alleges that the last time Mr. Dimacabayad provided financial support for their child was in 1994, thus making him liable under Section 5 (e) (2) and (i) of RA No. 9262.  Mr. Dimacabayad argues that the action cannot prosper because the crime has prescribed pursuant to Section 24 of RA No. 9262.  Is Mr. Dimacabayad correct?

 

A: No.  The offense of failing to provide financial support is a continuing crime.  In this case, it began in 1994 but is still and remained ongoing.  Thus, Mr. Macabayad can still be held liable for violence against women and children.

 

Q: Jack asked Rose to marry him, but the latter refused.  He threatened to kill himself if Rose would continue to reject him.

 

(1)What offense can Jack be charged, if any?

 

A: Jack can be charged with an act of violence against Rose.  Inflicting or threatening to inflict physical harm on oneself for the purpose of controlling a woman’s actions or decisions is considered an act of violence under Section 5 of RA No. 9262.

 

(2)Who can file the criminal complaint against Jack?

 

A: Any citizen having personal knowledge of the circumstances involving the commission of the crime may file a complaint.  Violence against women and their children is considered a public offense.

 

Q: What is meant by “dating relationship” under RA No. 9262?

 

A: It refers to a situation wherein the parties live as husband and wife without the benefit of marriage or are romantically involved over time and on a continuing basis during the course of the relationship.  A casual acquaintance or ordinary socialization between two individuals in a business or social context is not a dating relationship.

 

Q: Pedro and Petra were married but their marriage was subsequently annulled.  After a year of being separated and having assured that they had no ill-feelings towards each other, Petra started dating Juan.  Pedro, still having feelings toward his ex-wife got jealous when he learned that Petra was dating Juan, his friend.  Thereafter, Pedro went to the residence of Petra.  Under the impression that Pedro was just checking up on her, Petra entertained and accommodated her former husband.  Surprisingly, after serving him iced tea and snacks, Pedro grabbed the hand of Petra followed by several kicks and punches.  Pedro left Petra who sustained bruises all over her body.  Petra filed a complaint, charging Pedro of violation of RA No. 9262.  Pedro however, countered that said law is inapplicable since Petra was no longer his wife.  Decide.

 

A: Petra is correct in charging Pedro of violation of RA No. 9262.  Under Section 3 (a) of RA No. 9262, one of the elements of physical violence is that the woman is either the wife or former wife of the offender, or is a woman with whom the offender has or had a sexual or dating relationship, or is a woman with whom such offender Hs a common child.

 

Q: According to the law, violence against women and their children is committed by “any person against a woman who is his wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child” the persons liable for said Act so as to exclude all other persons therefrom.

 

A: No.  In the case of Sharica Mari Go-Tan v. Spouses Perfecto and Juanita Tan (September 30, 2008), the Supreme Court held that parents in law may likewise be held liable for violation of RA No. 9262 under the principle of conspiracy.  While the said provision provides that the offender must be related to the victim by marriage, former marriage, or a sexual dating relationship, it does not preclude the application of the principle of conspiracy under the RPC.

 

Q: Dr. Kayden Ho, a young and handsome plastic surgeon, has a habit of videotaping his torrid and wild “sexcapades” with different women.  Unfortunately, these videos were uploaded deliberately in the internet.  Dr. Ho denied strongly having spread the footages and insisted that they were stolen from his laptop he kept inside the condominium unit where he stayed.  Kaye, one of the women seen in said videos and a TV personality, sued him.  Is Dr. Ho liable for any crime?

 

A: Yes.  Dr. Ho can be held liable for violation of Section 5  and (i) of RA No. 9262.  These provisions refer to the “psychological abuse” caused on a woman with whom the offender had a sexual or dating relationship.  By reason of his reckless conduct, Dr. Ho caused substantial emotional and psychological distress to Kaye as she was exposed to public ridicule and humiliation.

 

 

INDETERMINATE SENTENCE LAW (Act No. 4103 as amended by Act No. 4225)

 

Q: What are the penalties that a court must determine?

 

A: The court must, instead of a single fixed penalty, determine two penalties, referred to in the Indeterminate Sentence Act as the “maximum” and “minimum” terms.

        The law should be applied in imposing a prison sentence for a crime punishable either by a special or by the Revised Penal Code.

 

When the crime is punished by a special law –

 

        If the offense is punished by a special law, the court shall sentence the accused to an indeterminate penalty, the maximum term of which shall not exceed the maximum fixed by aid law and the minimum term shall not be less than the minimum prescribed by the same.

 

When the crime is punished by the Revised Penal Code –

 

        If the offense is punished by the Revised Penal Code, the court shall sentence the accused to an indeterminate penalty, the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the Revised Penal Code, and the minimum term of which shall be within the range of the penalty next lower to that prescribed by the Revised Penal Code for the offense.

 

       

        The court cannot put the minimum penalty in the same period and the same degree as the maximum penalty, because the minimum penalty “shall be within the range of the penalty next lower to that prescribed by the Revised Penal Code for the offense”.

 

        The penalty next lower must be based on the penalty prescribed by the Revised Penal Code for the offense, without considering in the meantime the modifying circumstances, such as, the mitigating or aggravating circumstances.

 

        In determining the “minimum” penalty, Act No. 4103, as amended, confers upon the courts in fixing the penalties the widest discretion that the courts have ever had.

 

        In determining the minimum term, it is entirely left within the discretion of the court to fix it anywhere within the range of the penalty next lower without reference to the periods into which it may be subdivided.

 

        Under the Indeterminate Sentence law, if the offense is punishable under the Revised Penal Code, the minimum penalty should be within any of the periods of the penalty next lower in degree to that prescribed by law, and the maximum thereof should be within the proper period of the penalty that may be imposed were the sentence a straight penalty.

 

        The mitigating or aggravating circumstance is required to be considered only in the imposition of the maximum term of the indeterminate sentence.

 

        Hence, if the minimum term of the indeterminate sentence is arresto mayor in its minimum and medium periods, which has a duration of 2 months and 1 day to 4 months, the court may impose 4 months of imprisonment, even if there is no aggravating circumstance.

 

        For the same reason, the court may impose 2 months and 1 day, even if there is an aggravating circumstance, it being discretionary to the court to impose the minimum term anywhere within its range.

 

        Where there is a privileged mitigating circumstance, so that the penalty has to be lowered by one degree, the starting point for determining the minimum term of the indeterminate penalty is the penalty next lower from that prescribed by the Revised Penal Code for the offense.

 

Q: Give examples of the application of the provisions of the Indeterminate Sentence Law.

 

A:

        Under Special Law:

        A is convicted of illegal possession of firearm punishable by imprisonment from 1 year and 1 day to 5 years.

        The court can impose an indeterminate sentence from 2 years and 1 day, as the minimum term, to 4 years, as the maximum term; 2 years and 1 day to 3 years; or 3 years and 1 day to 5 years.

        The maximum term of each of the different examples does not exceed the maximum of 5 years prescribed by the law, and the minimum term is not less than the minimum of 1 year and 1 day prescribed by the said law.

 

        Under the Revised Penal Code:

        A is convicted of falsification of official document committed by a public officer penalized by prision mayor.  There is one mitigating circumstance of plea of guilt.

        To determine the penalty next lower, disregard first the mitigating circumstance of plea of guilt.  Hence, prision mayor in its full extent, the penalty prescribed by the Revised Penal Code for the offense, should be the basis, and not prision mayor minimum, because it is not penalty “prescribed by the Revised Penal Code for the offense”.

        Prision mayor minimum becomes the proper penalty only because of the presence of the mitigating circumstance of plea of guilt.  The penalty next lower is prision correccional.

        Therefore, the indeterminate sentence will be:

 

        MAXIMUM – prision mayor (in it proper period after considering the mitigating circumstance).

        MINIMUM – prision correccional, in any of its periods or anywhere within the range of prision correccional without reference to any of its periods.

 

 

Q: In what cases is the Indeterminate Sentence law not applicable?

 

A: ISLaw is not applicable to the following:

1.  Persons convicted of offenses punished with death penalty or life imprisonment.

2.  Those convicted of treason, conspiracy or proposal to commit treason.

3.  Those convicted of misprision of treason, rebellion, sedition or espionage.

4.  Those convicted of piracy.

5.  Those who are habitual delinquents.

6.  Those who shall have escaped from confinement or evaded sentence.

7.  Those who have violated the terms of conditional pardon granted to them by the Chief Executive.

8.  Those whose maximum term of imprisonment does not exceed one year.

9.  Those who, upon approval of the law (December 5, 1933), had been sentenced by final judgment (Sec. 2, Act No. 4103).

10.              Those sentenced to the penalty of destierro or suspension.

 

Q: What is the purpose of the Indeterminate Sentence Law?

 

A: The purpose of the ISLaw is “to uplift and redeem valuable human material, and prevent unnecessary and excessive deprivation of personal liberty and economic usefulness.”  It aims to individualize the administration of our criminal law.

 

Q: What are the factors to be taken into consideration by the court in fixing the minimum penalty?

 

A: It is necessary to consider the criminal, first, as an individual and, second, as member of society.

        Considering the criminal as an individual, some of the factors that should be considered are: (1) his age, especially with reference to extreme youth or old age; (2) his general health and physical conditions; (3) his mentality, heredity and personal habits; (4) his previous conduct, environment and mode of life (and criminal record, if any); (5) his previous education, both intellectual and moral; (6) his proclivities and aptitudes for usefulness or injury to society; (7) his demeanour during trial and his attitude with regard to the crime committed; (8) the manner and circumstances in which the crime was committed; (9) the gravity of the offense.

        In considering the criminal as a member of society, his relationship, first, toward his dependents, family and associates and their relationship with him, and second, his relationship towards society at large and the State, are important factors.  The State is concerned not only in the imperative necessity of protecting the social organization against the criminal acts of destructive individuals but also in redeeming the individual for economic usefulness and other social ends.  In a word, the Indeterminate Sentence Law aims to individualize the administration of our criminal law to a degree not heretofore known in this country.  With the foregoing principles in mind as guides, the courts can give full effect to the beneficient intention of the Legislature.

 

Q: What is the reason for fixing the MINIMUM and MAXIMUM penalties in the indeterminate sentence?

 

A: They are as follows:

1.  Whenever any prisoner shall have served the minimum penalty imposed on him, and it shall appear to the Board of Indeterminate Sentence that such prisoner is fitted for release, said Board may authorize the release of such prisoner on parole, upon such terms and conditions as may be prescribed by the Board.

2.  Whenever such prisoner released on parole shall, during period of surveillance, violate any of the conditions of his parole, the Board may issue an order for his arrest.  In such case, the prisoner so rearrested shall serve the remaining unexpired portion of the maximum sentence.

3.  Even if a prisoner has already served the minimum, but he is not fitted for release on parole, he shall continue to serve imprisonment until the end of the maximum.

 

 

Cases:

1.  People v. Gonzales, 73 Phil. 549

2.  Basan v. People, 61 SCRA 275 

3.  People v. Ducosin, 59 Phil. 109

4.  People v. De Joya, 98 Phil. 238

5.  People v. Fulgencio, 92 Phil. 1069

6.  People v. Cesar, 22 SCRA 1024

7.  People v. Ong Ta, 70 Phil. 553

8.  People v. Jaurigue, 76 Phil. 174

9.  People v. De Lara, 98 Phil. 584

10.              People v. Colman, 103 Phil. 6

11.              People v. Cempron, 187 SCRA 248

12.              People v. Lee, Jr., 132 SCRA 66

13.              People v. Moises, 66 SCRA 151

 

PROBATION LAW (Presidential Decree No. 968, as amended)

 

Q: Define probation

 

A: Probation is a disposition under which a defendant, after conviction and sentence, is released and subject to conditions imposed by the court and to the supervision of a probation officer.

 

Q: When should an application for probation filed?  What is its purpose and effect?

 

A: What the law requires is that the application for probation must be filed within the period of perfecting an appeal.  The need to file it within such period was intended to encourage offenders, who are willing to be reformed and rehabilitated, to avail of probation at the first opportunity.  Such provision was never intended to suspend the period for the perfection of an appeal, and the filing of the application for probation operates as a waiver of the right to appeal.

        In sharp contrast with Section 4 as amended by P.D. No. 1257, in its present form, Section 4 establishes a much narrower period during which an application for probation may be filed with the trial court: after [the trial court] shall have convicted and sentenced a defendant and – “within the period for perfecting an appeal.”  As if to provide emphasis, a new proviso was appended to the first paragraph of Section 4 that expressly prohibits the grant of an application for probation “if the defendant has perfected an appeal from the judgment of conviction.”  It is worthy to note too that Section 4 in its present form, i.e., as amended by P.D. No. 1990, has dropped the phrase which said that the filing of an application for probation means “the automatic withdrawal of a pending appeal.”

 

        N.B. The convict is not immediately placed on probation, for no person shall be placed on probation except upon prior investigation by the probation officer and a determination by the court.

 

Q: Where should an application for probation filed?

 

A: An application for probation shall be filed with the trial court.

 

Q: What is the nature of an order granting probation?

 

A: An order placing defendant on “probation” is not a “sentence” but is rather in effect a suspension of the imposition of sentence.  It is not a final judgement but is rather an “interlocutory judgment” in the nature of a conditional order placing the convicted defendant under the supervision of the court for his reformation, to be followed by a final judgment of discharge, if the conditions of the probation are complied with, or by a final judgment of sentence if the conditions are violated.

 

Q: What are the criteria for placing an offender on probation?

 

A: The court shall consider (1) all information relative to the – character, antecedents, environment, mental and physical condition of the offender, and (2) available institutional and community resources.

 

Q: When probation shall be denied?

 

A: Probation shall be denied if the court finds that: (a) the offender is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or (b) there is undue an risk that during the period of probation, the offender will commit another crime; or (c) probation will depreciate the seriousness of the offense committed.

        The grant or denial of an application for probation does not rest solely on the offender’s potentiality to reform but also on the observance of demands of justice and public interest.  These are expressed in statutes enacted by the lawmaker.

 

Q: Who are the offenders disqualified from being placed on probation?

 

A: The benefits of the Decree shall not be extended to –

(a)  those sentenced to serve a maximum term of more than six years;

(b) those convicted of subversion or any crime against the national security or public order;

(c)  those who were previously convicted by final judgment of an offense punished by imprisonment of not less than one month and one day and/or a fine of not more than two hundred pesos;

(d) those who have once on probation under the provisions of the Decree; and

(e)  those who are already serving sentence at the time the substantive provisions of the Decree became applicable pursuant to Section 33 thereof.

 

Q: What are the conditions of probation?

 

A: Every probation order issued by the court shall contain conditions requiring the probationer to:

(a)  Present himself to the probation officer designated to undertake his supervision at such place as may be specified in the order within 72 hours from receipt of the order;

(b) Report to the probation officer at least once a month at such time and place as specified by said officer.

 

The court may also require the probationer to do any of those enumerated in sub-paragraphs (a) to (k) of Section 10 of the Decree.

The conditions which trial courts may impose on a probationer may be classified into general or mandatory and special or discretionary.  The mandatory conditions, enumerated in Section 10 of the Probation Law, require that the probationer should (a) present himself to the probation officer designated to undertake his supervision at such place as may be specified in the order within 72 hours from receipt of said order, and (b) report to the probation officer at least once a month at such time and place as specified by said officer.  Special or discretionary conditions are those additional conditions, listed in same Section 10 of the Probation Law, which the courts may additionally impose on the probationer towards his correction and rehabilitation outside of prison.  The enumeration, however, is not inclusive.  Probation statutes are liberal in character and enable courts to designate practically any term it chooses as long as the probationer’s constitutional rights are not jeopardized.  There are innumerable conditions which may be relevant to the rehabilitation of the probationer when viewed in their specific individual context.  It should, however, be borne in mind that the special or discretionary conditions of probation should be realistic, purposive and geared to help the probationer develop into a law-abiding and self-respecting individual.  Conditions should be interpreted with flexibility in their application and each case should be judged on its own merits – on the basis of the problems, needs and capacity of the probationer.  The very liberality of the probation should not be made a tool by trial courts to stipulate instead unrealistic terms.

 

Q: For how long may a convict be placed on probation?

 

A:

(1)If the convict is sentenced to a term of imprisonment of not more than one year, the period of probation shall not exceed two years.

(2)In all other cases, if he is sentenced to more than one year, said period shall not exceed six years.

(3)When the sentence imposes a fine only and the offender is made to serve subsidiary imprisonment, the period of probation shall be twice the total number of days of subsidiary imprisonment.

 

Q: When and how probation is terminated, and what are the effects of the termination?

 

A: After the period of probation and upon consideration of the report and recommendation of the probation officer, the court may order the final discharge of the probationer upon finding that he has fulfilled the terms and conditions of his probation and thereupon the case is deemed terminated.

        The final discharge of the probationer shall operate to restore to him all civil rights lost or suspended as a result of his conviction and to fully discharge his liability for any fine imposed as to the offense for which probation was granted.

        The expiration of the probation period alone does not automatically terminate probation.  Probation is not coterminous with its period.  There must first be issued by the court, an order of final discharge based on the report and recommendation of the probation officer.  Only from such issuance can the case of the probationer be deemed terminated.

 

Cases:

1.  Palo v. Militante, 184 SCRA 395

2.  Llamado v. Court of Appeals, 174 SCRA 566

3.  Baclayon v. Mutia, 129 SCRA 148

4.  Amandy v. People, 161 SCRA 436

5.  Salgado v. Court of Appeals, 189 SCRA 304

6.  Bala v. Martinez, 181 SCRA 459

7.  Budlong v. Apalisok, 122 SCRA 935

8.  People v. Disimban, 88 Phil. 120

9.  People v. Salazar, 105 Phil. 1058

 

 

COMPREHENSIVE DANGEROUS DRUG ACT (Republic Act No. 9165)

 

Q: May a person charged with violation of the provisions of the Dangerous Drugs Act of 2002 avail of probation?

 

A: It depends.  Convicted drug traffickers and pushers cannot avail of probation, regardless of the penalty imposed.  However, those guilty of other violations, such as possession of dangerous drugs, may apply for probation, provided the requisites of probation are complied with, that is, the penalty imposed must NOT exceed 6 years.  In the case of a first-time minor offender, the court in its discretion may place the accused under probation if the sentence provided is higher than that provided under the existing law on probation, or impose community service in lieu of imprisonment.

 

Q: In a buy-bust operation, a police officer acted as a poseur-buyer of shabu from John, a suspected drug pusher.  Upon receipt of the pack of shabu, the police officer gave the signal to his fellow police officers, who immediately caused the arrest of John.  He was charged for violation of the Dangerous Drugs Act of 2002 for the sale of dangerous drugs.  John argued that he cannot be charged for the consummated crime of illegal selling of dangerous drugs because there was no exchange of money, hence there was no consummation of sale.  Is John correct?

 

A: No.  The consummation of the crime of illegal sale of drugs may be sufficiently established even in the absence of an exchange of money.  The crime of illegal sale of drugs is committed as soon as the sale transaction is consummated.  The payment could precede or follow delivery of the drug sold.  In a “buy-bust” operation, what is important is the fact that the poseur-buyer received the shabu from the offender and that the same was presented as evidence in court.  In short, proof of the transaction suffices.  Settled is the rule that as long as the police officer went through the operation as a buyer and his offer was accepted by the offender and the dangerous drugs delivered to the former, the crime is considered consummated by the delivery of the goods.

 

Q: What is the chain of custody requirement in drug offenses?  What is its rationale?  What is the effect of failure to observe the requirement?

 

A: “Chain of custody” requirement in drug offenses refers to the duly recorded, authorized movement and custody of seized dangerous drugs, controlled chemicals, plant sources of dangerous drugs, laboratory equipment for dangerous drugs from the time of confiscation/seizure thereof from the offender, to its turn-over and receipt in the forensic laboratory for examination, to its safekeeping and eventual presentation/offer in court as evidence of the criminal violation, and for destruction.

        Its rationale is to preserve the authenticity of the corpus delicti or the body of the crime by rendering it that the original item seized/confiscated in the violation has not been exchanged or substituted with another or tampered with or contaminated.  It is the method of authenticating the evidence as would support a finding beyond reasonable doubt that the matter is what the prosecution claims it to be.

        Failure to observe the “chain of custody” requirement renders the evidence questionable, not trustworthy and insufficient to prove the corpus delicti beyond reasonable doubt.

 

Q: Who are required to undergo mandatory drug testing?

 

A: They are the following:

1.  Applicants for driver’s license

2.  Applicants for firearm’s license and for permit to carry outside of residence

3.  Students of secondary and tertiary schools

4.  Officers and employees of public and private offices

5.  Officers and members of the military, police and law enforcement agencies

 

Q: Is strict compliance in the method of the custody and disposition of confiscated, seized, and/or surrendered dangerous provided in Section 21 of the Comprehensive Dangerous Act needed?

 

A: No, non-compliance with Section 21 of R.A. No. 9165 under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the  apprehending officer, shall not render void and invalid such seizures of  and custody of said items.

 

Q: Does the belated submission of pre-operation report to PDEA violate R.A. No. 9165?

 

A: No.  In the case of People v. Abedin, the Court held that coordination with the PDEA is not indispensable requirement before police authorities may carry out a buy-bust operation; that in fact, even the absence of coordination with the PDEA will not invalidate a buy-bust operation.

 

Q: PO1 Ramos and PO1 Santos were conducting anti-drug surveillance at Cherry Street in Barangay San Juan.  While the said officers were in front of a sari-sari store, Paeng approached them and asked them if they wanted to buy shabu.  PO1 Ramos asked if Paeng had some.  Paeng nodded and told them that a sachet costs P200.00.  Upon hearing this, PO1 Ramos and PO1 Santos introduced themselves as cops and arrested Paeng.  Was there a consummated illegal sale of drugs?

 

A: No.  The elements necessary for the prosecution of illegal drugs are: (1) the identity of the buyer and seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment.  In the present case, the sale was interrupted when the police officers introduced themselves as cops and immediately made the arrest.  Thus, the sale was not consummated but merely attempted. 

 

Q: The two accused were caught in a buy-bust operation.  During trial, the police officer Buan identified accused-appellants, the four Php500-bill marked money used, and the drugs confiscated from both accused-appellants.  The police officer Buan explained during his testimony that the boodle money placed in-between the genuine marked money the buy-bust team used was unavailable as it has been confiscated by a policeman named Barlin when he himself (Buan) was arrested for violating Section 27 of the Dangerous Drugs Act.  Is conviction proper?

 

A: No.  Conviction is not proper.  There are gaps or missing links in the chain of custody of evidence, raising doubt as to the identity of the seized items and necessarily their evidentiary value.  This broken chain of custody is especially significant given that what are involved are fungible items that may be easily altered of tampered with.  Given the prosecution’s failure to abide by the rules on the chain of custody, the evidentiary presumption that official duties have been regularly performed cannot apply to this case.  This presumption, it must be emphasized, is not conclusive.  Not only is it rebutted by contrary proof, as here, but it is also inferior to the constitutional presumption of innocence.

 

Q: During a buy-bust operation, the asset approached accused-appellant Melchor and introduced PO2 Vicente as customer.  Melchor informed PO2 Vicente that the shabu was with his brother, accused-appellant Teddy.  He then asked the money from PO2 Vicente and the latter gave him the marked Php500 bill money.  Thereafter, Melchor approached Teddy, who was about 10 meters away from them.  He handed the marked money to Teddy, who, in turn, gave Melchor a sachet.  Melchor returned to where PO2 Vicente was and handed him the sachet.  Can Melchor be convicted for possession of prohibited drugs?

 

A: Yes.  Possession under the law, includes not only actual possession, but also constructive possession.  Actual possession exists when the drugs is in the immediate physical possession or control of the accused.  On the other hand, constructive possession exists when the drug is under dominion and control of the accused or when he has the right to exercise dominion and control over the place where it is found.  Exclusive possession or control is not necessary.  The accused cannot avoid conviction if his right to exercise control and dominion over the place where the contraband is located, is shared with another

        Thus, conviction need not be predicated upon exclusive possession, and a showing of non-exclusive possession would not exonerate the accused.  However, the prosecution must prove that the accused had knowledge of the existence and presence of the drug in the place under his control and dominion and the character of the drug.

 

Q: Define a drug syndicate.

 

A: A drug syndicate is any organized group of two (2) or more person forming or joining together with the intention of committing any offense prescriber under R.A. No. 9165. 

 

Q: Accused-appellant Monongan was a minor or 17 years old at the time of the commission of the offense.  Should minority be considered a mitigating circumstance in determining the penalty for violation of R.A. No. 9165?

 

A: Yes.  Pursuant to Sec. 98 of R.A. No. 9165, the penalty for acts punishable by life imprisonment to death provided in the same law shall be reclusion perpetua to death when the offender is a minor; and that the penalty should be graduated since the said provision adopted the technical nomenclature of penalties provided for in the Revised Penal Code.

        The privilege mitigating circumstance of minority can now be appreciated in fixing the penalty that should be imposed.  Thus, applying the said rules, the penalty should be one degree lower than reclusion perpetua, which is reclusion temporal, the privileged mitigating circumstance of minority having been appreciated.

 

Q: Is the failure of the buy-bust team to immediately mark the seized drugs casts doubt as to the identity of the shabu allegedly confiscated?

 

A: No.  The failure to strictly comply with Sec. 21 (1), Art. II of R.A. No. 9165 does not necessarily render the arrest of the accused illegal or the items seized or confiscated from him inadmissible.  What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as these would be utilized in the determination of the guilt or innocence of the accused.

 

Q: What is the effect of the finding of drugs in the offender in the commission of a crime?

 

A: A positive finding for the use of dangerous drugs shall be a qualifying aggravating circumstance in the commission of a crime by the offender.  The application of the penalty provided for in the Revised Penal Code shall be applicable.

 

Q: What are the presumptions in R.A. No. 9165?

 

A: Possession of equipment, instruments, apparatus or other paraphernalia or dangerous drugs fit or intended for smoking, consuming, administering, injecting, ingesting or introducing any dangerous drug in the body shall be prima facie evidence that the possessor has smoked, consumed, etc., to himself the said dangerous drug.

 

Cases:

1.  People v. Yang, February 16, 2004

2.  Social Justice Society v. Dangerous Drugs Board and Phil. Drug Enforcement Agency, November 3, 2008

3.  People v. Ros, April 15, 2015

4.  People v. Havana, January 11, 2016

5.  Dela Cruz v. People, July 23, 2014

6.  People v. Morilla, February 5, 2014

7.  People v. Laylo, July 6, 2011

8.  People v. Batoon, November 24, 2010

9.  People v. Barba, July 23, 2009

 

 

OBSTRUCTION OF JUSTICE (Presidential Decree No. 1829)

 

Q: Do the benefits under Art. 20 (accessories who are exempt from liability) of the Revised Penal Code apply to one prosecuted under P.D. No. 1829?

 

A: No.  P.D. No. 1829 penalizes the act of any person who knowingly or wilfully obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases.  The benefits of Article 20 do not apply to P.D. No. 1829.

 

Q: If a person can be charged as an accessory under the Revised Penal Code and under P.D. No. 1829, how many cases do you file?

 

A: Only one.  But if you file under P.D. No. 1829 and the offense is likewise punishable under a different law, the higher penalty between the two will be imposed.

 

Q: Who is punishable under P.D. No. 1829?

 

A: Any person who knowingly obstructs, impeded, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases by harbouring or concealing, or facilitating the escape of, any person he knows, or has reasonable ground to believe or suspect, has committed any offense under existing penal laws in order to prevent his arrest, prosecution and conviction will be punished under P.D. No. 1829.

 

Q: If a person is charged with rebellion and with a violation under P.D. No. 1829, is it necessary that the two offenses be separately filed against the offender?

 

A: A person charged with rebellion should not be separately charged under P.D. No. 1829.  The theory of absorption must not confine itself to common crimes but also to offenses punished under special laws which are perpetrated in furtherance of the political offense.

 

Q: Is public office an essential element of the offense of obstruction of justice?

 

A: No.  The offenses defined in P.D. No. 1829 may be committed by any person whether a public officer or a private citizen, and accordingly public office is not an element of the offense.

 

ANTI-PIRACY AND ANTI-HIGHWAY ROBBERY LAW OF 1974 (Presidential Decree No. 532)

 

Q: Who is an accomplice under the Act?

 

A: Any person who knowingly and in any manner ids or protects pirates or highway robbers/brigands, such as giving them information about the movement of police or other peace officers of the government, or acquires or receives property taken by such pirates or brigands or in any manner derives any benefit therefrom; or any person who directly or indirectly abets the commission of piracy or highway robbery or brigandage.

 

Q: Can Robbery co-exist with Piracy?

 

A: No.  Considering that the essence of piracy is one of robbery, any taking in a vessel with force upon things or with violence or intimidation against person is always piracy.  It cannot co-exist with the crime of robbery.  Robbery therefore, cannot be committed on board a vessel.  But if the taking is without violence or intimidation on persons or force upon things, the crime of piracy cannot be committed, but only theft.

 

ANTI-HIJACKING LAW (Republic Act. No. 6235)

 

Q: What are the punishable acts under the Anti-Hijacking Law?

 

A: It shall be unlawful for any person to compel a change in the course or destination of an aircraft of Philippine registry, or to seize or usurp the control thereof, while it is in flight.  It shall likewise be unlawful for any person to compel an aircraft of foreign registry to land in Philippine territory or to seize or usurp the control thereof while it is within the said territory.

 

Q: What are the aggravating circumstances?

 

A: Any person committing such violation under any of the following circumstances:

a.   Whenever he has fired upon the pilot, member of the crew or passenger of the aircraft;

b.  Whenever he has exploded or attempted to explode any bomb or explosive to destroy the aircraft; or

c.   Whenever the crime is accompanied by murder, homicide, serious physical injuries or rape.

 

Q: When is an aircraft considered in flight?

 

A: According to the law, an aircraft is in flight from the moment all its external doors are closed following embarkation until any such doors is opened for disembarkation.

 

Q: The pilots of an aircraft of Saudia Airlines were accosted by some armed men and were told to proceed to the aircraft to fly it to Syria.  The armed men walked with the pilots and went on board the aircraft.  But before they could do anything on the aircraft, the armed men were arrested by the Armed Forces of the Philippines.  What crime was committed?

 

A: The Anti-Hijacking Law is applicable in this case.  There is intent to take control of the aircraft, which constitutes hijacking.  Even if the aircraft is not yet about to fly, the requirement that it be in flight does not hold true when it comes to aircraft of foreign registry.  Even if the problem does not say that all exterior doors are closed, the crime is hijacking.  Since the aircraft is of foreign registry, under the law, simply usurping or seizing control is enough as long as the aircraft is within Philippine territory, without the requirement that it be in fight.

 

 

ANTI-PLUNDER LAW (Republic Act No. 7080)

 

Q: what is ill-gotten wealth?

 

A: Ill-gotten wealth means any asset, property, business enterprise or material possession of any person within the purview of Section Two hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes:

a.   Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury;

b.  By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned;

c.   By the illegal or fraudulent conveyance or disposition of asset belonging to the National Government or any of its subdivision, agencies or instrumentalities or government-owned or controlled corporations and their subsidiaries;

d.  By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including promises of future employment in any business enterprise undertaking;

e.   By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or

f.    By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines.

 

 

ANTI-MONEY LAUDERING ACT (Republic Act No. 9160)

 

Q: What is money laundering?

 

A: Money laundering is a crime whereby the proceeds of an unlawful activity defined under the Anti-Money Laundering Act of 2001 are transacted thereby, making them appear to have originated from legitimate sources.

 

Q: Who are liable for money laundering?

 

A: The following are liable:

1.  Any person knowing that any monetary instrument or property represents, involves or relates to the proceeds of any unlawful activity, transacts or attempts to transact said monetary instrument or property.

2.  Any person knowing that any monetary instrument or property involves the proceeds of any unlawful activity, performs or fails o perform any act as a result of which he facilitates the offense of money laundering referred to in the above paragraph.

3.  Any person knowing that any monetary instrument or property is required under AMLA to be disclosed and filed with the Anti-Money Laundering Council fails to do so.

 

Q: What is malicious reporting under R.A. No. 9160?

 

A: Any person who, with malice, or in bad faith, reports or files completely unwarranted or false information relative to money laundering transaction against any person shall be subject to a penalty of imprisonment and fine.  Provided, that the offender is not entitled to avail the benefits of the Probation Law.

 

Q: A series of investigations concerning the award of the Cebu Airport contracts were undertaken by the Ombudsman and the Compliance and Investigation Staff (‘CIS’) of the Anti-Money Laundering Council (‘AMLC’).  The Office of the Solicitor General (‘OSG’) wrote AMLC requesting AMLC’s assistance in obtaining more evidence to completely reveal the financial trail of corruption surrounding the Cebu Airport Project.  The CIS conducted an intelligence database search on the financial transactions of certain individuals involved in the award.  By this time, a certain Valdez had already been charged by the Ombudsman with violation of Section 3 (j) of the Anti-Graft and Corrupt Practices Act.  The search revealed that Valdez maintained 8 bank accounts with 6 different banks.  After several motions, manifestations, orders and resolutions the case went up to the SC.  Valdez’s position was the AMLA, being a substantive penal statute, has no retroactive effect and the bank inquiry order could not apply to deposits or investments opened prior to the effectivity of the AMLA.  The subject bank accounts, opened in 1989 to 1990, could not be the subject of the bank inquiry order without violating the constitutional prohibition against ex post facto laws.  Whether or not the proscription against ex post facto laws applies to Section 11 of the AMLA, a provision which does not provide a penal sanction but which merely authorizes the inspection of suspect accounts and deposits?

 

A: YES, it applies.  It is clear that no person may be prosecuted under the penal provisions of the AMLA for acts committed prior to the enactment of the law (October 17, 2001).  The argument that the prohibition against ex post facto laws goes as far as to prohibit any inquiry into deposits in bank accounts opened prior to the effectivity of the AMLA even if the transactions were entered into when the law had already taken effect cannot be sustained.  This argument will create a loophole in the AMLA that would result to further money laundering.  It is hard to presume that Congress intended t enact a self-defeating law in the first place, and the courts are inhibited from such a construction by the cardinal rule that “a law should be interpreted with a view to upholding rather than destroying it”. (Republic v. Eugenio)

 

Q: What are the covered institutions under the AMLA?

 

A: All those supervised and regulated by the Bangko Sentral ng Pilipinas (BSP), the Securities and Exchange Commission (SEC) and the Insurance Commission (IC).

 

Q: Define covered transaction.

 

A: A transaction in cash or other equivalent monetary instrument involving a total amount in excess of five hundred thousand pesos (Php500,000.00) within one (1) banking day.

 

Q: What are suspicious transactions?

 

A: Transactions with covered institutions, regardless of the amounts involved, where any of the following exist:

1.  There is no underlying legal or trade obligation, purpose or economic justification;

2.  The client is not properly identified;

3.  The amount involved is not commensurate with the business or financial capacity of the client;

4.  The client’s transaction is structured in order to avoid being the subject of reporting requirements under the Act;

5.  Any circumstance relating to the transaction which is observed to deviate from the profile of the client and/or the client’s past transactions with the covered institution;

6.  The transactions is in a way related to an unlawful activity or offense under this Act that is about to be, is being or has been committed; or

7.  Any transactions that is similar or analogous.

 

Q: What are unlawful activities under AMLA?

 

A: They are the following:

1.  Kidnapping for ransom

2.  Drug offenses

3.  Graft and Corrupt Practices

4.  Plunder

5.  Robbery and extortion

6.  Jueteng and Masiao

7.  Piracy on the High Seas

8.  Qualified theft

9.  Swindling

10.              Smuggling

11.              Violations of the Electronic Commerce Act

12.              Hijacking, Destructive Arson, Murder

13.              Fraudulent practices and violations of the SRC

14.              Felonies of similar nature under penal laws of other countries

 

Q: What are the three stages in money laundering?

 

A: The three stages are (1) placement/infusion or the physical disposal of the criminal proceeds, (2) layering or the separation of the criminal proceeds from their source by creating layers of financial transactions to disguise such proceeds as legitimate and avoid the audit trail and (3) integration or the provision of apparent legitimacy to the criminal proceeds (R.A. 9160 as amended by R.A. 9194).

 

FEATURES OF R.A. NO. 10167 (2012 amendments to AMLA)

 

Q: Who has the power to issue a freeze order?  What is the effective life of a freeze order?

 

A: The Court f Appeals has the power to issue a freeze order.  It is effective immediately after its issuance and 20 days thereafter, unless extended by the court.  Before the 2012 amendment, it was the AMLC who had the power to issue freeze orders, and they were effective for 15 days.

 

Q: May another court issue a temporary restraining order or writ of injunction against any freeze order?

 

A: Yes.  Only the Supreme Court may issue such orders.

 

Q: What is needed before a court can order an inquiry into suspected bank deposits or investments?  Is a court order always necessary before the AMLC may inquire into bank deposits or investments?

 

A: The prosecution must establish probable cause that the accounts sought to be subjected to inquiry are related to unlawful activities. They must also file an ex parte application, before a court order is issued.

 

N.B. A court order is not needed when the unlawful activities are violations of the Dangerous Drugs Act, Kidnapping for Ransom, Hijacking, and other violations of R.A. No. 6325, destructive arson, and murder.  Neither is a court order needed when the unlawful activities involve similar crimes to the above mentioned, punishable under the laws of other countries, or when they involve violations of the Human Security Act.

 

FEATURES OF R.A. NO. 10365 (2013 Amendments to AMLA)

 

Q: Who are the entities newly covered by the 2013 amendments to the AMLA?

 

A:

1.  Jewelry dealers in precious metals, who, a  business, trade in precious metals, for transactions in excess of one million pesos (Php1,000,000.00);

2.  Jewelry dealers in precious stones, who, as a business, trade in precious stones, for transactions in excess of one million pesos (Php1,000,000.00);

3.  Company service providers which, as a business, provide any of the following services to third parties:

a.   Acting as a formation agent of judicial persons;

b.  Acting as (or arranging for another person to act as) a director or corporate secretary of a company, a partner of a partnership, or a similar position in relation to other judicial persons;

c.   Providing a registered office, business address or accommodation, correspondence or administrative address for a company, a partnership or any other legal person or arrangement; and (iv) acting as (or arranging for another person to act as) a nominee shareholder for another person; and

4.  Persons who provide any of the following services:

a.   Managing of client money, securities or other assets;

b.  Management of bank, savings or securities accounts;

c.   Organizations of contributions for the creation, operation or management of companies; and

d.  Creation, operation or management of judicial persons or arrangements, and buying and selling business entities.

 

Q: What are the additional ways by which money laundering can be committed under the 2013 amendments?

 

A: Money laundering can now be committed by any person who, knowing that any monetary instrument or property represents, involves, or relates to the proceeds of any unlawful activity:

1.  Converts, transfers, disposes of, moves, acquires, possesses or uses said monetary instrument or property;

2.  Conceals or disguises the true nature, source, location, disposition, movement or ownership of or rights with respect to said monetary instrument or property;

3.  Attempts or conspires to commit money laundering offenses referred to in paragraphs (a), (b) or (c);

4.  Aids, abets, assist in or counsels the commission of the money laundering offenses referred to in paragraphs (a), (b) or (c) above.

 

LAW ON ILLEGAL/UNLAWFUL POSSESSION, MANUFACTURE, DEALING OF FIREARMS, AMMUNITIONS AND EXPLOSIVES (Republic Act No. 8294)

 

Q: When can a person be held liable for illegal possession of firearms or explosives?

 

A: The accused can be convicted of simple illegal possession of firearms or explosives, provided that no other crime was committed.

 

Q: What is/are the crime(s) committed if A kills B using an unlicensed firearm?

 

A: The crime is homicide OR murder only.  If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered an aggravating circumstance (Sec. 1).

 

Q: What is the effect of illegally using an explosive to commit any crime under the Revised Penal Code or any special law which results to death of any person?

 

A: When a person commits any crime under the Revised Penal Code or special laws with the use of illegal explosives, etc, which results in death of any person, the use of explosives shall be considered as an aggravating circumstance.  EXCEPT: When the crime committed is rebellion, insurrection, sedition or attempted coup d’état, the illegal/unlawful use of explosives is absorbed (Sec. 3).

 

Q: Mel was convicted of direct assault with attempted homicide.  Can he be also charged for a separate offense of illegal possession of firearms used during the said crime?

 

A: If an unlicensed firearm is used in the commission of any crime, there can be no separate offense of simple illegal possession of firearms.  If the other crime is murder or homicide, illegal possession of firearms becomes merely an aggravating circumstance.  Since the crime is direct assault with homicide, Mel cannot be held liable for illegal possession of firearms (see People v. Ladjaalam, September 19, 2000).

 

Q: Is ownership necessary to charge one of illegal possession?

 

A: Ownership is not an essential element of illegal possession of firearms and ammunition.  What the law requires is merely possession which includes not only actual physical possession but also constructive possession or the subjection of the thing to one’s control and management.

 

N.B. Under the latest amendment of the firearms law, Section 29 of Republic Act No. 10591 provides that “the use of a loose firearm, when inherent in the commission of a crime is punishable under the Revised Penal Code or other special laws, shall be considered as aggravating circumstance . . .”

 

 

COMPRERHENSIVE FIREARMS AND AMMUNITION REGULATION ACT (Republic Act No. 10591)

 

Q: What are the conditions in order for a juridical entity which is maintaining its own security force to own and possess firearms and ammunitions?

 

A: The following are the conditions under R.A. No. 10591:

a.   It must be Filipino-owned and duly registered with the Securities and Exchange Commission;

b.  It is current, operational and a continuing concern;

c.   It has completed and submitted all its reportorial requirements to the SEC; and

d.  It has paid all its income taxes for the year, as duly certified by the Bureau of Internal Revenue.

 

Q: When shall a license be renewed?

 

A: The law provides that all types of licenses to possess a firearm shall be renewed every two years.  Failure to renew the license on or before the date of its expiration shall cause the revocation of the license and of the registration of the firearm(s) under said licensee.

 

 

 

JUVENILE JUSTICE AND WELFARE ACT (Republic Act No. 9344)

 

Q: What is a diversion program?

 

A: According to paragraph (j) of Section 4, it refers to the program that the child in conflict with the law is required to undergo after he/she is found responsible for an offense, without resorting to formal court proceedings.  Basically, it is a contract between the parties.  The diversion program shall be effective and binding if accepted by the parties concerned.  The acceptance shall be in writing and signed by the parties concerned and the appropriate authorities (Sec. 26).

 

Q: Seventeen year-old Angelito raped Yna.  Being a minor, he was exculpated from civil liability.  However, the family of Yna claims for damages but Angelo and his counsel asserted that since there is no criminal liability it follows that there is no civil liability either.  May Yna claim for damages?

 

A: Yes. R.A. No. 9344 does not relieve him from civil liability arising from the offense.  Once the child in conflict with the law is found guilty of the offense charged, the court, instead of pronouncing judgment of conviction, shall place him under suspended sentence, without need of application.  But the court shall determine and ascertain any civil liability which may have resulted from the offense committed (Section 38).  In other words, the suspension of sentence does not extend to the civil aspect of the case.  If the child in conflict with the law is found innocent or exempt from criminal liability the pronouncement of judgment of acquittal shall not be suspended.

 

Q: What is being suspended when there is suspension of sentence of a minor?  How about in probation?  In parole?

 

A: In suspension of sentence of a minor, what is being suspended is the pronouncement of sentence or promulgation of judgment of conviction.  In probation, what is being suspended is the service of sentence.  In parole, what is being suspended is the service of the unserved portion of the sentence.

 

Q: Miguel, despite his young age, was already considered a juvenile offender.  Ultimately, he is already a recidivist.  Can Miguel validly ask for suspension of sentence?

 

A: Yes, so long as the offender is still a minor at the time of the promulgation of the sentence.  The law establishing Family Courts, R.A. No. 8369, provides to this effect: if the minor is found guilty, the court should promulgate the sentence and ascertain any civil liability which the accused may have incurred.

 

Q: Ricardo committed a crime when he was still 17 years old.  He was charged of the same offense on the day he turned 18.  However, Ricardo was already 21 when he was finally convicted and sentenced.  He is now seeking a suspension of the sentence as he claims he was a juvenile offender.  Is Ricardo still entitled to such suspension?

 

A: No.  Ricardo is not entitled to a suspension of the sentence because he is no longer a minor at the time of the promulgation of the sentence.  For purposes of suspension of sentence, the offender’s age at the time of the promulgation of the sentence is the one considered, not his age when he committed the crime.

 

 

ACT ESTABLISHING PRESCRIPTIVE PERIODS FOR VIOLATIONS OF SPECIAL LAWS AND MUNICIAPL ORDINANCES (Act No. 3326)

 

Q: Will the prescription be interrupted by the institution of proceedings against the guilty person?

 

A: No.  According to Section 2, par. 2 of Act No. 3326, it provides that the prescription shall be interrupted when proceedings are instituted against the guilty person, and shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy.

 

Q: Ten years ago, Frank stabbed Connor and threw the latter’s body into a ravine.  Oliver saw this happened but he never told anyone what he had witnessed and the body was never found.  Wanting to be a good and conscientious man, Oliver reported to the authorities what he had seen 25 years ago.  Can Frank still be prosecuted for murder despite the lapse of 10 years.

 

A: Yes, Frank can still be prosecuted for murder despite the lapse of 10 years because the crime had not yet prescribed and legally, its prescriptive period has not yet even commenced to run.  The period of prescription of a crime shall commence to run only from the day on which the crime has been discovered by the offended party, the authorities or their agents (Art. 91, RPC).  Oliver, a private person who saw the killing but never disclosed it, is not the offended party nor has the crime been discovered by the authorities of their agents.

 

Q: When shall the violations prescribe?

 

A: The law provides that violations penalized by municipal ordinances shall prescribe after two months.

 

 

ANTI-PHOTO AND VIDEO VOYEURISM ACT OF 2009 (R.A. No. 9995)

 

Q: What is “photo or video voyeurism”?

 

A: It is the act of taking photo or video coverage of a person or group of persons performing sexual act or any similar activity or of capturing an image of the private area of a person or persons without the latter’s consent, under circumstances in which such person/s has/have a reasonable expectation of privacy, or the act of selling, copying, reproducing, broadcasting, sharing, showing or exhibiting the photo or video coverage or recordings of such sexual act or similar activity through VCD/DVD, internet, cellular phones and similar means or device without the written consent of the person/s involved, notwithstanding that consent to record or take photo or video coverage of the same was given by such persons.

 

Q: What are the acts punishable under this law?  Are there any exceptions?

 

A:

1.  To take photo or video coverage of a person or group of persons performing sexual act or any similar activity or to capture an image of the private area of a person/s such as the naked or undergarment clad genitals, pubic area, buttocks or any portion of the female breast WITHOUT the consent of the person/s involved and under circumstances in which the person/s has/have a reasonable expectation of privacy;

2.  To copy or reproduce, or to cause to be copied or reproduce items under par. (1) above with or without consideration;

3.  To sell or distribute, or to cause to be sold or distributed, items under pars. (1) and (2) above;

4.  To publish or broadcast, or cause to be published or broadcast, whether in print or broadcast media, or show or exhibit the photo or video coverage or recordings of such sexual act or any similar activity through VCD/DVD, internet, cellular phones and other similar means or device (Sec. 4).

 

The above acts are not punishable if a peace officer authorized by a written order of the court uses the record or any copy thereof as evidence in any civil, criminal investigation or trial of the crime of photo or video voyeurism (Sec. 6).

 

 

AN ACT REGULATING HAZING AND OTHER FORMS OF INITIATION RITES IN FRATERNITIES, SORORITIES, & OTHER ORGANIZATIONS & PROVIDING PENALTIES THEREFOR (R.A. NO. 8049)

 

Q: Define hazing.

 

A: Hazing as used in this Act is an initiation rite or practice as a prerequisite for admission into membership in a fraternity, sorority or organization by placing the recruit, neophyte or applicant in some embarrassing or humiliating situations such as forcing him to do mental, silly, foolish and similar tasks or activities or otherwise subjecting him to physical and psychological suffering or injury.

 

Q: What is the liability of the owner of the place where the hazing is conducted?

 

A: As provided in Section 4 of RA No. 8049, the owner of the place where hazing is conducted shall be liable as an accomplice, when he has actual knowledge of the hazing conducted therein but failed to take any action to prevent the same from occurring.  If the hazing is held in the home of one of the officers or members of the fraternity, group or organization, the parents shall be held liable as principals when they have actual knowledge of the hazing conducted therein but failed to take any action to prevent the same from occurring.

 

Q: When is initiation rites allowed?

 

A: For initiation rite to be allowed –

a.   There must be a prior written notice to the school authorities or head of organization;

b.  The notice must be 7 days before the initiation;

c.   It will indicate the period of the initiation activities which shall not exceed 3 days, the names of those to be subjected to initiation and it must include an undertaking that no physical violence be employed by anybody during initiation rites;

d.  The head of the school/organization or their representatives must assign at least 2 representatives to be present during the initiation;

e.   The representative will ensure that no physical harm will be inflicted during initiation.

 

Q: Who are liable for the punishable acts?

 

A:

1.  The officers and members of the fraternity, sorority or organization who actually participated in the infliction of physical harm as principals if neophyte dies or suffers physical injuries.

2.  Owner of the place where hazing is conducted shall be liable as an accomplice if he has actual knowledge of initiation rites and he failed to take action to prevent hazing.

3.  Parents liable as principals if the hazing is held in the home of one of the officers or members of the fraternity, group, or organization, if they have actual knowledge of initiation rites and failed to take action to prevent hazing.

4.  School authorities/faculty as accomplices who consented or have actual knowledge and failed to take action to prevent hazing.

5.  Officers, former officers, or alumni of the organization, group, fraternity or sorority as principals who actually planned the hazing although not present when the acts constituting the hazing were committed during initiation.

6.  Fraternity or sorority’s adviser as principal who is present when the acts constituting the hazing were committed and failed to take action to prevent hazing.

 

Q: What constitutes prima facie evidence of participation as principal in hazing?  Any exceptions?

 

A: Mere presence of any person during the hazing constitutes prima facie evidence of participation as principal except if the person prevented the commission of the acts punishable.

 

 

ANTI-WIRE TAPPING ACT (R.A No. 4200)

 

Q: Is an extension line covered in the phrase “any other device or arrangement in R.A. No. 4200?

 

A: No.  An extension telephone cannot be placed in the same category as a Dictaphone, dictograph or other devices enumerated in Section 1 or R.A. No. 4200 as the use thereof cannot be considered as “tapping” the wire or cable of a telephone line (Ganaan v. Intermediate Appellate Court, 145 SCRA 112).

 

Q: When is wiretapping allowed?

 

A: Under Section 3 of R.A. No. 4200, a peace officer, who is authorized by a written order of the Court, may execute any of the acts declared to be unlawful in the two preceding sections in cases involving 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 in the Revised Penal Code, and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security.

 

 

NEW ANTI-CARNAPPING ACT OF 2016 (R.A. No. 10883)

 

Q: Is carnapping a bailable offense?

 

A: No. Any person found guilty of carnapping shall be punished by imprisonment for not less than 20 years and one day but not more than 30 years.  The new law provides stiffer penalties for carnapping and considers it as a non-bailable offense especially if the evidence of guilt is strong. [N.B. The old law only provided for a penalty of imprisonment for 14 years and 8 months to 17 years and 4 months]

 

 

HEINOUS CRIMES ACT OF 1993 (R.A. No. 7659) IN RELATION TO ACT PROHIBITING THE IMPOSITION OF DEATH PENALTY (R.A. No. 9346)

 

Q: What is the effect of the suspension of death penalty by R.A. No. 9346?

 

A: Death penalty is not abolished.  It is merely suspended.  If the crime is punishable by death, the penalty to be imposed will be reclusion perpetua and not death.  However, with regard to civil indemnity or award of moral damages, the amount would depend on imposable penalty.  Thus, if proper penalty is death, even if the penalty to be served is reclusion perpetua, the civil indemnity or award of moral damages would be that proper for death penalty.  Consequently, the civil indemnity for the victim is still Php75,000.00, without need of proof, while moral damages is Php75,000.00

        Automatic appeal in cases when the trial court imposes the death penalty will not apply, since its imposition is now prohibited, so that there is a need to perfect an appeal, if appeal is desired, from a judgment of conviction for an offense where the penalty imposed is reclusion perpetua in lieu of the death penalty pursuant to the new law prohibiting its imposition (People v. Salome, August 31, 2006).

 

Q: Does R.A. No. 9346 change the nature of heinous crimes to non-heinous crimes?

 

A: No, the amendatory effects of R.A. No. 9346 extend only to the application of the death penalty but not to the definition or classification of crimes.  While the penalties for heinous crimes have been downgraded, what remains extant is the recognition by law that such crimes, by their abhorrent nature, constitute a special category by themselves.  Accordingly, R.A. No. 9346 does not serve as basis for the reduction of civil indemnity and other damages that adhere to heinous crimes (Bon v. Court of Appeals, October 30, 2006).

 

ANTI-TORTURE ACT (R.A. No. 9745)

 

Q: What is torture?

 

A: Act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him/her or a third person information or a confession; punishing him/her for an act he/she or a third person has committed or is suspected of having committed; or intimidating or coercing him/her or a third person; or for any reason based on discrimination of any kind, when such pan or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a person in authority or his agent (Section 3).

 

Q: Define other cruel, inhuman and degrading treatment or punishment.

 

A: A deliberate and aggravated treatment or punishment not enumerated under Section 4 of this Act, inflicted by a person in authority or agent of a person in authority against a person under his/her custody, which attains a level of severity causing suffering, gross humiliation or debasement to the latter (Section 3).

 

Q: What are the acts punishable under this law?

 

A:

(a)  Physical torture is a form of treatment or punishment inflicted by a person in authority or agent of a person in authority upon another in his/her custody that causes severe pain, exhaustion, disability or dysfunction of one or more parts of the body.

(b) “Mental/Psychological Torture” refers to acts committed by a person in authority or agent of a person in authority which are calculated to affect or confuse the mind and/or undermine a person’s dignity and morale (includes blindfolding, denial of sleep and rest) (Section 4).

(c)  Other rue, inhuman and degrading treatment or punishment (Section 5).

 

Q: Is the right to be free from torture absolute?

 

A: YES.  Even in a state of war or emergency, it is not allowed.

 

Q: X, a police officer, placed a hood on the head of W, a suspected drug pusher, and watched as Y and Z, police trainees, beat up and tortured W to get his confession.  What is X’s participation?

 

A: X’s act makes him liable as principal violation of the Anti-Torture Act (R.A. No. 9745).

 

Q: Annalise was arrested for committing a bailable offense and detained in solitary confinement.  Through the help of her sons, she was able to post bail after two weeks of detention.  During the period of detention, she was not given any food.  Such deprivation caused her physical discomfort.  What crime, if any, was committed, in connection with the solitary confinement and food deprivation of Annalise?

 

A: According to Section 4, subsection (a), paragraph 4 of R.A. No. 9745, food deprivation or forcible feeding with spoiled food, animal or human excreta and other stuff or substances not normally eaten is considered as a physical torture.

 

HUMAN SECURITY ACT (R.A. No. 9372)

 

Q: Should there be an actual or imminent terrorist attack, may terrorist be detained for more than 3 days even without the approval of the Commission of Human Rights?

 

A: No.  According to Section 19 of R.A. No. 9372, in the event of an actual or imminent terrorist attack, suspects may not be detained for more than 3 days without the written approval of a municipal, city, provincial or regional official of a Human Rights Commission or judge of the municipal, regional trial court, the Sandiganbayan or a justice of the Court of Appeals nearest the place of the arrest.  If the arrest is made during Saturdays, Sundays, holidays or after office hours, the arresting police or law enforcement personnel shall bring the person thus arrested to the residence of any of the officials mentioned above that is nearest the place where the accused was arrested.  The approval in writing of any of the said officials shall be secured by the police or law enforcement personnel concerned within 5 days after the date of the detention of the persons concerned: Provided, however, that within 3 days after the detention of the suspects, whose connection with the terror attack or threat is not established, shall be released immediately.

 

Q: What are the rights of a Person under Custodial Detention?

 

A: The moment a person is charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism is apprehended or arrested and detained, he shall forthwith be informed, by the arresting police or law enforcement officers or by the police or law enforcement officers to whose custody the person concerned is brought, of his or her right:

a.   To be informed of the nature and cause of his arrest, to remain silent and to have competent and independent counsel preferably of his choice.

b.  Informed of the cause or causes of his detention in the presence of his legal counsel.

c.   Allowed to communicate freely with is legal counsel and to confer with them at any time without restriction.

d.  Allowed to communicate freely and privately without restrictions with the members of his family or with his nearest relatives and to be visited by them.

e.   Allowed freely to avail of the service of a physician or physicians of choice.

 

Q: Can a person charged with terrorism be placed under house arrest?

 

A: A person charged with the crime of terrorism or conspiracy to commit terrorism may also be placed under house arrest by order of the court at his or her usual place of residence.  While under house arrest, he or she may not use telephones, cell phones, e-mails, computers, the internet or other means of communications with people outside the residence until otherwise ordered by the court (Section 26).

 

Q: What are the elements of terrorism and the crimes which can be considered as acts of terrorism?

 

A: (1) Any person who commits an act punishable under any of the following:

a.   Piracy in general and Mutiny in the High Seas or in the Philippine Waters (Art. 122);

b.  Rebellion or Insurrection (Art. 134); 

c.   Coup d’état, including acts committed by private persons (Art. 134-A);

d.  Murder (Art. 248);

e.   Kidnapping and Serious Illegal Detention (Art. 267);

f.    Crimes involving Destruction or under the law on Arson (P.D. No. 1613);

g.   Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990 (R.A. No. 6969);

h.  Atomic Energy Regulatory and Liability Act of 1968 (R.A. No. 5207);

i.    Anti-Hijacking Law (P.D. No. 6235);

j.    Anti-Piracy and Anti-Highway Robbery Law of 1974 (P.D. No. 532);

k.  Decree Codifying the Laws on Illegal and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions or Explosives (P.D. No. 1866).

2. Thereby sowing and creating widespread and extraordinary fear and panic among the populace;

3. To coerce the government to give in to an unlawful demand.

 

Q: Explain the absorption principle under the Human Security Act?

 

A: Other crimes committed as a means necessary for its commission or as an unintended effect of terrorism are absorbed and cannot be prosecuted separately.

 

Q: Is dismissal or acquittal for a crime charged under the Human Security Act a bar from prosecuting a crime necessarily included in the offense charged under the Human Security Act?

 

A: YES.  When a person has been prosecuted under a provision of this Act, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for any offense or felony which is necessarily included in the offense charged (Section 49).

 

Q: Does the Human Security Act provide a different period for delivery of suspect to the proper judicial authority from those set in the RPC?

 

A: YES.  Any law enforcement personnel authorized in writing by the Anti-Terrorism Council who has taken custody of a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism shall deliver said person to the proper judicial authority within a period of three (3) days counted from the moment said charged or suspected person has been apprehended or arrested, detained, and taken into custody.  This will apply to arrests resulting from the surveillance under Section 7 and examination of bank deposits under Section 27 of the Act (Section 18).

        Also, in the event of an actual or imminent terrorist attack, suspects may be detained for more than three (3) days if with the written approval of a municipal, city, provincial or regional official of a Human Rights Commission or judge of the MTC or RTC, the Sandiganbayan of a Justice of the Court of Appeals nearest the place of the arrest.  If the arrest is made during Saturdays, Sundays, holidays or after office hours, the arresting police or law enforcement officer shall bring the person thus arrested to the residence of any of the officials mentioned nearest the place of arrest.  The approval in writing of any of the said officials shall be secured by the police or law enforcement personnel concerned within five (5) days after the date of the detention of the persons concerned: Provided, however, that within three (3) days after the detention the suspects, whose connection with the terror attack or threat is not established, shall be released immediately (Section 19).

 

Q: X, policeman, wants to intercept communication/conversation on matters of terrorism.  Where should X get permission to do so?

 

A: X should secure a written order from the Court of Appeals to listen to, intercept and record, with the use of any mode, form, kind or type of electronic or other surveillance equipment or intercepting and tracking devices, or with the use of any suitable ways and means for that purpose, any communication, message, conversation, discussion, or spoken or written words between members of a judicially declared and outlawed terrorist organization, association, or group of persons or of any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism.

 

        Exception: Communications between lawyers and clients, doctors and patients, journalists and their sources and confidential business correspondence shall not be authorized.

 

Q: Can travel ne restricted under the Human Security Act?

 

A: Yes.  In cases where evidence of guilt is not strong, and the person charged with the crime of terrorism or conspiracy to commit terrorism is entitled to bail and is granted the same, the court, upon application by the prosecutor, shall limit the right of travel of the accused to within the municipality or city where he resides or where the case is pending.  The court must authorize travel outside the city/municipality.  If without authorization, it is a violation of conditions of bail.  The suspect may be place under house arrest by order of the court.

 

Q: What are the rules on examination of bank deposits under the Human Security Act?

 

A: Court of Appeals justices will be designated as a special court to handle anti-terrorism cases.  In a hearing, they will determine probable cause that there is:

1.  A person charged with or suspected of the crime of terrorism or conspiracy to omit terrorism,

2.  Of a judicially declared and outlawed terrorist organization, association, or group of persons, and

3.  Of a member of such judicially declared and outlawed organization, association, or group of persons,

Said Court of Appeals justices may authorize in writing any law enforcement officer authorized in writing by the Anti-Terrorism Council to:

a.   Examine, or cause the examination of, the deposits, placements, trust accounts, assets and records in a bank or financial institution; and

b.  Gather or cause the gathering of any relevant information about such deposits, placements, trust accounts, assets, and records from a bank or financial institution.

The bank or financial institution concerned shall not refuse to allow such examination or to provide the desired information, when so ordered by and served with the written order of the Court of Appeals.

 

ANTI-CHILD PORNOGRAPHY ACT (R.A. No. 9775)

 

Q: How does R.A. No. 9775 define a child?

 

A: The definition includes:

a.   A person below eighteen (18) years of age or over, but is unable to fully take care of himself/herself from abuse, neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or condition.

b.  A person regardless of age who is presented, depicted or portrayed as a child.

c.   Computer generated, digitally or manually crafted images or graphics of a person who is represented or who is made to appear to be a child.

 

Q: What is child pornography?

 

A: It refers 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.

 

Q: When is the crime of child pornography deemed committed by a syndicate?

 

A: The crime of child pornography is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another.

 

ANTI-TRAFFICKING IN PERSONS ACT (R.A. No. 9208)

 

Q: What are the acts punishable under this law?

 

A: Acts of trafficking in persons:

a.   To recruit, transport, transfer, harbour, provide or receive a person by any means, including under the pretext of domestic or oversees employment/training/apprenticeship for the purpose of prostitution, pornography, sexual exploitation, forced labour, slavery, involuntary servitude or debt bondage (PPSSFID).

b.  To introduce or match for money, profit, or material, economic or other consideration, any person or, as provided for under Republic Act No. 6955, any Filipino woman to a foreign national for the purpose of PPSSFID.

c.   To offer or contract marriage, real or simulated for the purpose of PPSSFID.

d.  To undertake/organize tours and travel plans consisting of tourism packages or activities for the purpose of PPSSFID.

e.   To maintain or hire a person for the purpose of PPSSFID.

f.    To adopt or facilitate the adoption of persons for the purpose of PPSSFID.

g.   To recruit, hire, adopt, transport or abduct a person, by means of threat or use of force, fraud, deceit, violence, coercion, intimidation for the purpose of removal/sale of organs of said person; and

h.  To recruit, transport or adopt a child to engage in armed activities in the Philippines or abroad (Section 4).

 

Acts that promote trafficking in persons (Section 5)

 

Qualified trafficking:

1.  When the trafficked person is a child;

2.  Adoption is effected through “Inter Country Adoption Act” and is for the purpose of PPSSFID;

3.  When the crime is committed by a  syndicate (carried out by a group of 3 or more persons), or in large scale (committed against 3 or more persons);

4.  When the offender is an ascendant, parent, sibling, guardian or a person who exercises authority over the trafficked person or is a member of the military or law enforcement agencies; when the offense is committed by a public officer or employee;

5.  When the trafficked person is recruited to engage in prostitution with any member of the military or law enforcement agencies;

6.  When by reason or on occasion of the act of trafficking in persons, the offended party dies, becomes insane, suffers mutilation of is afflicted with HIV or AIDS.

 

Q: Who can file a complaint for the prosecution of cases under R.A. No. 9208?

 

A: Any person who has personal knowledge of the commission of any offense under this Act, the trafficked person, the parents, spouse, siblings, children or legal guardian may file a complaint for trafficking.

 

CYBERCRIME PREVENTION ACT OF 2012 (R.A. No. 10175)

 

Q: What are the punishable acts under the Cybercrime Prevention Act?

 

A: Section 4 punishes the following acts:

a.   Offenses against confidentiality, integrity and availability of computer data systems.  The act also includes the following: illegal access (par. a. 1); illegal interception (par. a. 2); data interference (par. a. 3); system interference (par. a. 4); misuse of devices (par. a. 5) and; cyber-squatting (par. a. 6).

b.  Computer-related offenses, such as computer-related forgery (par. b. 1); computer-related fraud (par. b. 2); and computer-related identity theft (par. b. 3).

c.   Content-related offense such as: cyber-sex (par. c. 1); child pornography (par. c. 2) and; unsolicited commercial communications (par. c. 3).

 

Section 5 provides for additional offenses punishable:

(a)  Aiding or Abetting in the commission of Cybercrime

(b) Attempt in the commission of Cybercrime

 

Section provides, “All crimes defines and defined in the RPC, 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”.  the penalty “shall be one (1) degree higher than that provided for by the RPC and the special law, as the case may be.”

 

Q: What is cyber-squatting?

 

A: Cyber-squatting the acquisition of a domain name over the internet in bad faith to profit, mislead, destroy reputation, and deprive other from registering the same, if such domain is:

i.    Similar, identical or confusingly similar to an existing trademark registered with the appropriate government agency at the time of the domain name registration;

ii. Identical or in any way similar with the name of a person other than the registrant, in case of a personal name; and

iii. Acquired without the right or with intellectual property interests in it.

 

Cases:

1.  Disini v. Sandignbayan, G.R. No. 203335, February 08, 2014

2.  Estrada v. Sandiganbayan, November 21, 2001

3.  Ganaan v. Intermediate Appellate Court, 145 SCRA 112

4.  People v. Salome, August 31, 2006

5.  Bon v. Court of Appeals, October 30, 2006