BAR 2017 LAST MINUTE FORESIGHT
IN
SPECIAL PENAL LAWS
By
DEAN GEMY LITO L. FESTIN
PUP COLLEGE OF LAW
Contents
CHAPTER I. PROBATION LAW .................................................................................................................................................. 4
CHAPTER II. INDETERMINATE SENTENCE LAW ..................................................................................................................... 10
CHAPTER III THE ANTI-GRAFT AND CORRUPT PRACTICES ACT ............................................................................................. 17
CHAPTER IV. THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002 ............................................................................. 24
CHAPTER V. ANTI-VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ACT OF 2004 ......................................................... 38
CHAPTER VI BOUNCING CHECKS LAW .................................................................................................................................. 45
CHAPTER VII. THE ANTI-FENCING LAW OF 1979 ................................................................................................................... 59
CHAPTER VIII. ILLEGAL POSSESSION OF FIREARM ................................................................................................................ 61
CHAPTER IX ANTI- MONEY LAUNDERING ACT OF 2001 ........................................................................................................ 65
CHAPTER X ANTI-HAZING ACTS OF 2018" ............................................................................................................................. 70
1.00 WHAT IS A SPECIAL PENAL LAW?
Special penal laws are laws that punishes acts not defined and penalized by the Revised Penal Code.
1.01 IS THE REVISED PENAL CODE APPLICABLE IN SPECIAL LAWS?
The general rule is that Special laws are not subject to the provisions of the Revised Penal Code.
Article 10 of the Revised Penal Code provides:
laws are not subject to the provisions of this Code.
The first sentence provides for the general rule. The second sentence refers to the suppletory effect of the Revised
Penal Code to special laws, unless the latter should specially provide the contrary.
In People vs. Ladonga, G.R. No. 141066, February 17, 2005, the Supreme Court applied the principle of conspiracy
provided under Article 6 of the Revised Penal Code in suppletory character to violation of B.P. 22 case. In Tan vs. Spouses
Tan, G.R. No. G.R. No. 168852, September 30, 2008, in a case involving Violence Against Women and Children or R.A. 9262,
the principle of conspiracy was again applied suppletorily.
Hence, the provisions on stages of execution under Article 6, degree of participation of persons who are criminally
liable under Title Two and the appreciation of the modifying circumstances in the proper imposition of penalties are not
applicable, as a rule, to special penal laws. Consequently, in Noble vs. People, 77 Phil. 1086, plea of guilt as a mitigating
circumstance is not available to offenses punishable under special laws.
However, when the penalties under the special law are different from and are without reference or relation to
those under the Revised Penal Code, there can be no suppletory effect of the rules, for the application of penalties under
the Code or by other relevant statutory provisions are based on or applicable only to said rules for felonies under the Code.
People vs. Simon, 234 SCRA 576
1.02 DIFFERENTIATE CRIMES PUNISHED UNDER THE REVISED PENAL CODE FROM CRIMES PUNISHED UNDER THE SPECIAL
PENAL LAW.
a. In crimes punished under the Revised Penal Code, they are generally regarded as mala in se, the act committed
in inherently wrong or immoral; under a special penal law, crimes are regarded as mala prohibita or the act
is merely prohibited by law;
*Exception:
Plunder is malum in se. Estrada vs. Sandiganbayan, G.R. No. 148560. November 19, 2001.
offense implies that it is a malum in se. For when the acts punished are inherently immoral or inherently wrong, they are
mala in se and it does not matter that such acts are punished in a special law, especially since in the case of plunder the
predicate crimes are mainly mala in se. Indeed, it would be absurd to treat prosecutions for plunder as though they are mere
prosecutions for violations of the Bouncing Check Law (B.P. Blg. 22) or of an ordinance against jaywalking, without regard
to the inherent wrongness of the acts
b. In crimes under the Revised Penal Code, good faith is a proper defense; in a special penal law, good faith is not a
defense;
*Exception:
Plunder being malum in se, criminal intent is required. The elements of mens rea must be proven in a prosecution
for plunder. Estrada vs. Sandiganbayan, G.R. No. 148560. November 19, 2001.
c. Under the Revised Penal Code, the stages of execution (consummated, frustrated or attempted) is considered in
arriving at the proper penalty to be imposed; in a special penal laws, they are not;
d. Under the Revised Penal Code , the degree of participation of the offenders (principals, accomplices, accessories)
is taken into consideration on the penalty imposable; in a special penal law, it is not;
*Exceptions:
1. Under Sections 4 and 5 of the Human Security Act of 2007, there may be accomplices and accessories.
2. Likewise, under Section 13 of or R.A. 7610 or the Anti-Torture Act, there may be principals and accessories.
3. Under Section 2 of R.A. 7080, or otherwise known as the Anti-Plunder Law, as amended by Section 12 of R.A.
7659, it provides that in the imposition of penalties, the degree of participation as provided under the Revised Penal Code,
shall be considered by the Court.
e. Under the Revised Penal Code, the modifying circumstances are appreciated in determining the penalty
imposable; in a special penal law, they are not;
*Exception:
Under Section 2 of R.A. 7080, or otherwise known as the Anti-Plunder Law, as amended by Section 12 of R.A.
7659, it provides that in the imposition of penalties, the attendance of mitigating and extenuating circumstances as
provided by the Revised Penal Code, shall be considered by the Court.
f. The Revised Penal Code uses the nomenclature of penalties provided under the Revised Penal Code, it a special
penal law, it does not;
*Exceptions:
1. Article 6 of the Anti-Child Abuse Law provides for the application of the nomenclature of penalties under the
any person who shall commit any other acts of child abuse,
cruelty or exploitation or to be respo
by Article 59 of the Presidential Decree No. 603, as amended, but not covered by the Revised Penal Code, as amended, shall
suffer the penalty of prision mayor in its
Although R.A. No. 7610 is a special law, the rules in the Revised Penal Code for graduating penalties by degrees
or determining the proper period should be applied. Sanchez vs. People 588 SCRA 747, June 5, 2009.
2. Likewise, under Section 14 of R.A. 7610 or the Anti-Torture Act, it uses again the nomenclature of penalties
under the Revised Penal Code.
.
When the crime is punished by a special law, as a rule, intent to commit the crime is not necessary. It is sufficient
that the offender has the intent to perpetrate the act prohibited by the special law. Intent to commit the crime and intent
to perpetrate the act must be distinguished.
A person may not have consciously intended to commit a crime; but he did intend to commit an act, and that act
is, by the very nature of things, the crime itself.
In intent to commit the crime - there must be criminal intent;
In (intent to perpetrate the act - it is enough that the prohibited act is done freely and consciously.
Elenita C. Fajardo vs. People, G.R. No. 190889, January 10, 2011
1.04 ARE SPECIAL LAWS AMENDING CERTAIN PROVISIONS OF THE REVISED PENAL CODE CONSIDERED MALA PROHIBITA?
No, special laws which are intended merely as amendments to certain provisions of the Revised Penal Code are
mala in se and still subject to its provision.
-oooOOOooo-
CHAPTER I. PROBATION LAW
Presidential Decree No. 968
[BAR Q. 2012, 2010, 2009, 2005, 2004, 2003, 2002, 2001, 1997, 1995, 1994, 1993, 1992, 1990, 1986]
1.00 WHAT ARE THE PURPOSES OF PROBATION? (SEC.2)
[BAR Q.1986, 1989]
The purposes of probation are as follows:
(a) to promote the correction and rehabilitation of an offender by providing him with individualized treatment;
b) to provide an opportunity for the reformation of a penitent offender which might be less probable if he were to
serve a prison sentence; and
(c) to prevent the commission of offenses.
An application for probation must be made within the period for perfecting an appeal. Sable vs. People 584 SCRA
619, April 7, 2009
The Probation Law prohibits a judge from entertaining or granting an application for probation if the defendant has
perfected an appeal from the judgment of conviction. Salvan vs People, 410 SCRA 638
In Sable vs. People, 584 SCRA 619, April 7, 2009, the application for probation was denied. In this case, petitioner
already filed a Notice of Appeal before the RTC before the application was instituted. The law is patently clear: "no
application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of
conviction."
Illustrative cases
1. BAR Q.[2010] Matt was found guilty of drug trafficking while his younger brother Jeff was found guilty of possession
of equipment, instrument, apparatus and other paraphernalia for dangerous drugs under Section 12 of Republic Act No.
9165. Matt filed a petition for probation. Jeff appealed his conviction during the pendency of which he also filed a petition
first time offenders, their petitions for probation should be
Suggested Answer: Both petitions should be denied. Any person found guilty of drug trafficking is disqualified to
avail of the benefits of probation. Hence, Matt petition should be dismissed. Insofar as Jeff is concerned, his act of appealing
his conviction disqualifies him to avail of probation. Probation law expressly states that no application for probation shall
be entertained or granted if the defendant has perfected an appeal from the judgment of conviction.
2. BAR Q.[2001] A, a subdivision developer, was convicted by the RTC of Makati for failure to issue the subdivision title
to a lot buyer despite full payment of the lot, and sentenced to suffer one year imprisonment. A appealed the decision of
the RTC to the Court of Appeals but his appeal was dismissed. May A still apply for probation? Explain.
Suggested Answer: No, A may not apply for probation. The appeal that he filed from the judgment of conviction
disqualifies him to avail of probation. Probation law provides that no application for probation shall be entertained or
granted if the accused has perfected an appeal from the judgment of conviction.
By perfecting their appeal, petitioners ipso facto relinquished the alternative remedy of availing of the Probation
Law, the purpose of which is simply to prevent speculation or opportunism on the part of an accused who, although already
eligible, does not at once apply for probation, but did so only after failing in his appeal. Lagrosa vs People, 405 SCRA 357
BAR Q.[1992] Johnny Gitara was convicted of the crime of estafa by the Regional Trial Court of Manila. He was imposed
the indeterminate penalty of imprisonment of 3 years, 2 months and 1 day as minimum and six years as maximum, both
a prision correctional and was ordered to indemnify the offended party in the amount of P3,000.00. He filed an application
for probation upon the promulgation of the judgment. What is the legal effect of his application for probation on the
judgment of conviction? Does said application interrupt the running of the period of appeal?
Suggested Answer:
effectively waives his right to appeal.
Judgment of conviction had become final and executory upon filing of the said application. The remedy of appeal is
unavailing.
1.05 IS A WAIVER OF THE RIGHT TO APPEAL FROM A JUDGMENT OF CONVICTION LIKEWISE A WAIVER ON THE CIVIL
LIABILITY EX DELICTO?
No. In an appeal from a judgment of conviction, the criminal liability and the civil liability ex delicto should be
considered independently, each with its own corresponding effects.
In People vs. Efren Salvan Y Presenes, G.R. No. 153845 September 11, 2003, the Court reiterated that the law that
bars an appeal of the judgment of conviction, as well as its corresponding criminal liability, should not bar an appeal of the
civil aspect of the same judgment.
1.06 MAY PROBATION BE GRANTED EVEN IF THE SENTENCE IMPOSES A FINE ONLY?
Yes, Section 4 of the same law states:
1.07 IS AN ORDER GRANTING OR DENYING PROBATION APPEALABLE? BAR Q.[2002]
No. An order granting or denying probation shall not be appealable. (Section 4)
1.08 HOW DOES THE PREVAILING JURISPRUDENCE TREAT APPEAL AND PROBATION AS REMEDIES?
Prevailing jurisprudence treats appeal and probation as mutually exclusive remedies because the law is
unmistakable about it and, therefore petitioner cannot avail herself of both.
1.09 WHAT IS THE LEGAL EFFECT OF PROBATION?
A conviction becomes final when the accused applies for probation.
1.10 WHO ARE DISQUALIFIED TO AVAIL OF THE BENEFITS OF PROBATION? (SEC.9)
Probation Law enumerates who are disqualified to avail of the benefits of probation. They are the following:
THE BENEFITS OF THE PROBATION DECREE SHALL NOT BE EXTENDED TO THOSE:
(1)
(2)
(3)
(4)
(5)
(6)
1.11 ILLUSTRATION OF THE DISQUALIFICATIONS OF PROBATION LAW.
(1) Sentenced To Serve A Maximum Term Of Imprisonment Of More Than Six Years.
BAR Q.[2002] A was charged with homicide. After trial, he was found guilty and sentenced to six (6) years and one (1)
day prision mayor, as minimum, to twelve (12) and one (1) day of reclusion temporal, as maximum. Prior to his conviction,
he had been found guilty of vagrancy and imprisoned for ten (10) days of arresto menor and fined fifty pesos (P50.00). Is
he eligible for probation? Why?
Suggested Answer: A is not eligible because his conviction exceeds six years. Probation does not extend to those
sentenced to serve a maximum term of imprisonment of more than six years. His previous convictionin this case has nothing
to do with his ineligibility to avail of probation.
a. Are there exceptions where even if the convict had filed an appeal still he is allowed to file a petition for
probation?
Yes, there are exceptions and they are the following:
1.
1.20 The principle enunciated in the case People vs. Arnel Colinares and now embodied under R.A.10707 amending the
probation law.
RA 10707, Section 4: when a judgment of conviction imposing a non-probationable penalty is appealed or reviewed, and
such judgment is modified through the imposition of a probationable penalty, the defendant shall be allowed to apply for
probation based on the modified decision before such decision becomes final.
ARNEL COLINARES vs. PEOPLE
G.R. No. 182748, December 13, 2011
FACTS: Arnel Colinares was found guilty of frustrated homicide by the RTC and sentenced him to suffer imprisonment from
two years and four months of prision correccional, as minimum, to six years and one day of prision mayor, as
maximum. Since the maximum probationable imprisonment under the law was only up to six years, Arnel did not qualify
for probation.
ISSUE: Whether or not accused may still apply for probation.
RULING: Ordinarily, Arnel would no longer be entitled to apply for probation, he having appealed from the judgment of the
RTC convicting him for frustrated homicide.
Here, however, Arnel did not appeal from a judgment that would have allowed him to apply for probation. He did
not have a choice between appeal and probation. He was not in a position to say, "By taking this appeal, I choose not to
apply for probation." The stiff penalty that the trial court imposed on him denied him that choice. Thus, a ruling that
would allow Arnel to now seek probation under this Court's greatly diminished penalty will not dilute the sound ruling
in Francisco. It remains that those who will appeal from judgments of conviction, when they have the option to try for
probation, forfeit their right to apply for that privilege.
In a real sense, the Court's finding that Arnel was guilty, not of frustrated homicide, but only of attempted
homicide, is an original conviction that for the first time imposes on him a probationable penalty. Had the RTC done him
right from the start, it would have found him guilty of the correct offense and imposed on him the right penalty of two
years and four months maximum. This would have afforded Arnel the right to apply for probation.
The Probation Law never intended to deny an accused his right to probation through no fault of his. The underlying
philosophy of probation is one of liberality towards the accused. Such philosophy is not served by a harsh and stringent
interpretation of the statutory provisions.
This may be true if the trial court meted out to Arnel a correct judgment of conviction. Here, however, it convicted
Arnel of the wrong crime, frustrated homicide that carried a penalty in excess of 6 years. How can the Court expect him to
feel penitent over a crime, which as the Court now finds, he did not commit? He only committed attempted homicide with
its maximum penalty of 2 years and 4 months.
At any rate, what is clear is that, had the RTC done what was right and imposed on Arnel the correct penalty of two
years and four months maximum, he would have had the right to apply for probation. No one could say with certainty
that he would have availed himself of the right had the RTC done right by him. The idea may not even have crossed his
mind precisely since the penalty he got was not probationable.
c.
What does R.A. 10707 provide where an application for probation is filed but the defendant has earlier perfected an
appeal?
Section 4 of P.D. 968, as amended by R.A. No. 10707 provides that NO application for probation shall be entertained or
granted if the defendant has perfected the appeal from the judgment of conviction: Provided, That when a judgment
of conviction imposing a non-probationable penalty is appealed or reviewed, and such judgment is modified through
the imposition of a probationable penalty, the defendant shall be allowed to apply for probation based on the modified
decision before such decision shall becomes final.
d.
taken into account in determining
The law uses the word
and not total term. It is enough that each of the prison term does not
exceed 6 years. The number of offenses is immaterial for as long as the penalties imposed, when taken individually and
separately, are within the probationable period. Francisco vs. CA, 243 SCRA 384
(2) Convicted Of Any Crime Against National Security or the Public Order.
The Crimes against National Security are as follows:
a. Treason
b. Conspiracy and Proposal to Commit Treason
c. Misprision of Treason
d. Espionage
e. Terrorism and Conspiracy to Commit Terrorism under R.A. 9372
The following are classified as Crimes against Public Order:
a. Rebellion, Co
b.
Crimes against Legislative Bodies and Similar Bodies, Violation Of Pariliamentary Immunity
c. Illegal Assemblies and Associations
d. Assault Upon, and Resistance and Disobedience to Persons In Authority and Their Agents
e. Public Disorders
f. Commission of Another Crime During Service of Penalty Imposed for Another Previous Offense
BAR Q. [2012] Under which of the following circumstances is probation not applicable?
a. Probation is not applicable when the accused is sentenced to serve a maximum of six (6) years.
b. Probation is not applicable when the accused has been convicted by final judgment of an offense punished by
imprisonment of less than one (1) month and/or fine of less than P200.00.
c. Probation is not applicable when accused is convicted of indirect assault. (*Indirect assault is a crime against public
order)
d.
Probation is not applicable when accused is convicted of indirect bribery.
(3) Who Have Previously Been 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 Less Than Two Hundred Pesos.
Illustrative case
BAR Q.[2004] PX was convicted and sentenced to imprisonment of thirty days and a fine of one hundred pesos. Previously,
PX was convicted of another crime for which the penalty imposed on him was thirty days only. Is PX entitled to probation?
Suggested Answer: Yes, the penalty imposed upon him does not exceed 6 years. His previous conviction for
another crime with a penalty of thirty days imprisonment or not exceeding one (1) month does not disqualify him from
applying for probation.
(4) Who Have Been Once On Probation Under The Provisions Of This Decree.
(5) Who Are Already Serving Sentence At The Time The Substantive Provisions Of This Decree Became Applicable Pursuant
To Section 33 Hereof.
(6) Who Has Perfected An Appeal From The Judgment Of Conviction (Sec.4, Probation Law. (*See previous discussion)
Probation essentially rejects appeals and encourages an otherwise eligible convict to immediately admit his liability
and save the state the time, effort and expenses to jettison an appeal. Sable vs. People 584 SCRA 619, April 7, 2009
(7) Any Person Convicted Of Drug Trafficking or Pushing Regardless of the Penalty Imposed By The Court. (Sec. 24 of R.A.
9165, The Comprehensive Dangerous Drugs Act Of 2002).
The Supreme Court had the occasion to explain this disqualification in Padua vs. People, 559 SCRA 519, July 23,
2008, where it states that under Section 24 of Rep. Act No. 9165, any person convicted of drug trafficking cannot avail of
the privilege of probation. In this case, the convict was charged and convicted for violation of Section 5, Article II of Rep. Act
No. 9165 for selling dangerous drugs. It is clear under Section 24 of Rep. Act No. 9165 that any person convicted of drug
trafficking cannot avail of the privilege of probation.
1.12 WHAT IS THE PERIOD OF PROBATION IF- (SEC.14)
a. the convict is sentenced to a term of imprisonment of not more than one year?
The period of probation shall not exceed two years.
BAR Q. [2012]The period of probation of the offender sentenced to a term of one (1) year shall not exceed
a. two (2) years;
b. six (6) years;
c. one (1) year;
d.three (3) years;
b. the convict is sentenced to a term of imprisonment of more than one year?
In all other cases, said period shall not exceed six years.
1.13 WHAT IS THE CONSEQUENCE IF THE PROBATIONER VIOLATES ANY OF THE CONDITIONS OF PROBATION? (SEC. 15)
The court may arrest the probationer, hold an informal summary hearing and may revoke his probation in which
case, he has to serve the sentence originally imposed.
1.14 WHEN IS PROBATION DEEMED TERMINATED? (Sec.16).
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.
1.15 WHAT IS THE CONSEQUENCE OF A FINAL DISCHARGE OF THE PROBATIONER? (Sec.16).
The final discharge of the probationer shall operate to restore to him all civil rights lost or suspend 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.
1.16 HOW IS PROBATION LAW CONSTRUED?
It is well-settled that the probation law is not a penal statute; and therefore, the principle of liberal interpretation
is inapplicable. And when the meaning is clearly discernible from the language of the statute, there is no room for
construction or interpretation. People vs. Alejandra Pablo, G.R. No. 12510: August 3, 2000
1.17 IS A PROBATIONER DISQUALIFIED FROM RUNNING FOR A PUBLIC OFFICE DURING THE PERIOD OF HIS PROBATION?
No. In the case of Moreno vs. COMELEC and MEJES, G.R. 168550, August 10, 2006, the Supreme Court emphasized
that during the period of probation, the probationer is not disqualified from running for a public office because the
accessory penalty of suspension from public office is put on hold for the duration of the probation.
The Court went on to state the case of Baclayo vs. Mutia, 129 SCRA 148, where it ruled that an order placing
defendant on probation is not a sentence but is rather in effect a suspension of imposition of sentence.
The grant of probation to petitioner suspended the imposition of the principal penalty of imprisonment, as well as
the accessory penalties of suspension from public office and from the right to follow the profession or calling and that of
perpetual special disqualification from the right of suffrage.
1.18 DOES THE GRANT OF PROBATION AFFECT THE ADMINISTRATIVE ASPECT OF A CASE?
No. Probation affects only the criminal aspect of the case, not its administrative dimension. Samalio vs Court of
Appeals, 454 SCRA 462
1.19 CAN THE PERIOD WITHIN WHICH A PERSON IS UNDER PROBATION BE EQUATED WITH SERVICE OF SENTENCE
ADJUDGED?
No. The period within which a person is under probation cannot be equated with service of sentence adjudged.
Section 4 of the Probation Law specifically provides that in the grant of probation, the probationer does not serve
the penalty imposed upon him by the court but is merely required to comply with all the conditions prescribed by the
probation order. Moreno vs. Comelec and Mejes, G.R. 168550, August 10, 2006
-ooo000ooo-
CHAPTER II. INDETERMINATE SENTENCE LAW
ACT NO. 4103
as amended by Act No. 4225 and Republic Act No. 4203
[BAR Q. 2014, 2010, 2009, 2007, 2005, 2003, 2002, 1999, 1994, 1991, 1990, 1989, 1988]
___________________________________________________
A. IN GENERAL
1.00 CITE THE PURPOSES OF THE INDETERMINATE SENTENCE LAW.
The purposes of Indeterminate Sentence Law are as follow:
1) To uplift and redeem valuable human material and prevent unnecessary and excessive deprivation of personal
liberty and economic usefulness; ur vhm pued pl&eu
2) It is intended to favor the accused particularly to shorten his term of imprisonment, depending upon his behavior
and his physical, mental and moral record as a prisoner to be determined by the Board of Sentence.
1.01 IF A SPECIAL LAW ADOPTS PENALTIES UNDER THE REVISED PENAL CODE, WILL THE INDETERMINATE SENTENCE LAW
APPLY JUST AS IT WOULD IN FELONIES?
Yes, where the special law adopted penalties from the Revised Penal Code, the Indeterminate Sentence Law will
apply just as it would in felonies.
The Supreme Court in Sanchez vs. People 588 SCRA 747, June 5, 2009, stressed that although Republic Act No. 7610
is a special law, the rules in the Revised Penal Code for graduating penalties by degrees or determining the proper period
should be applied.
The penalty for Other Acts of Child Abuse is prision mayor in its minimum period. This penalty is derived from, and
defined in, the Revised Penal Code. Although R.A. No. 7610 is a special law, the rules in the Revised Penal Code for
graduating penalties by degrees or determining the proper period should be applied.
1.02 UNDER WHAT CIRCUMSTANCES IS THE INDETERMINATE SENTENCE LAW NOT APPLICABLE (SEC. 2)?
[*BAR Q: State the application of the Indeterminate Sentence Law/ BAR Q: Under what circumstances is the Indeterminate
Sentence Law not applicable?]
PURSUANT TO SECTION 2 OF THE INDETERMINATE SENTENCE LAW, IT SHALL NOT BE APPLICABLE IN THE
FOLLOWING CASES: dtmphecma
DeathTreasonMisprision PiracyHabitualEscapee ConditionalMaximumAlready
1. Offenses punishable by death 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. Habitual delinquents - who within a period of ten (10) years from the date of his release or last conviction of
the crimes of serious, less serious physical injuries, robbery, theft, estafa or falsification, he is found guilty of
any of said crimes a third time or oftener
6. Those who escaped from confinement or those who evaded sentence.
7.
Those granted with conditional pardon and who violated the terms of the same.
8. Those whose maximum period of imprisonment does not exceed one year.
9. Those already serving final judgment upon the approval of this act.
1.03 EXPLAIN AND ILUSTRATE THE CIRCUMSTANCES WHEN THE INDETERMINATE SENTENCE LAW IS NOT APPLICABLE.
1. Offenses Punishable By Death Or Life Imprisonment.
a. May a person punished with reclusion perpetua be entitled to the benefits of ISLAW?
No, it is deemed included in the disqualification. The Indeterminate Sentence Law does not apply to persons
convicted of offenses punishable with Reclusion Perpetua. People vs. Lab-eo, 373 SCRA 461
The Court has equated the penalty of reclusion perpetua as synonymous to life imprisonment for purposes of the
Indeterminate Sentence Law. People vs. Enriquez G.R. No. 158797 July 29, 2005
b. Query: May the privileged mitigating circumstance of minority be appreciated in fixing the penalty that should be
imposed even if the penalty imposed is originally an indivisible penalty?
Yes. The ISLAW is applicable because the penalty which has been originally an indivisible penalty (reclusion
perpetua to death), where ISLAW is inapplicable, became a divisible penalty (reclusion temporal) by virtue of the presence
of the privileged mitigating circumstance of minority. People vs. Allen Udtojan Mantalaba, G.R. No. 186227: July 20, 2011
2. Those Convicted of Treason, Conspiracy or Proposal to Commit Treason.
a. TREASON
b. CONSPIRACY TO COMMIT TREASON.
Illustrative Case
BAR Q.[2012] AA was convicted of proposal to commit treason. Under Article 115 of the Revised Penal Code, proposal to
commit treason shall be punished by prision correccional and a fine not exceeding P5,000.00. Is the Indeterminate
Sentence Law applicable to AA?
a. Yes. The Indeterminate Sentence Law is applicable to AA because the maximum of prision correccional exceeds one (1)
year.
b. Yes. The Indeterminate Sentence Law is applicable to AA because there is no showing that he is a habitual delinquent.
c. No. The Indeterminate Sentence Law is not applicable to AA considering the penalty imposable for the offense of which
he was convicted.
d. No. The Indeterminate Sentence Law is not applicable considering the offense
for which AA was convicted is proposal to commit treason).
of which he was convicted (*The crime
3. Habitual Delinquents.
Who is a Habitual Delinquent? He is a person who within a period of ten (10) years from the date of his
release or last conviction of the crimes of serious, less serious physical injuries, robbery, theft, estafa or falsification,
he is found guilty of any of said crimes a third time or oftener (Article 62 of the Revised Penal Code as amended).
Illustrative case
4. Those Who Escaped From Confinement or Those Who Evaded Sentence.
[BAR Q.] A convict serving sentence for robbery escaped from the penitentiary and killed a rival gang member. Found guilty
of homicide, he was given a straight prison term. He moved for reconsideration, contending that not being a habitual
delinquent, he was entitled to an indeterminate sentence. Decide with reasons.
Suggested Answer: Motion for reconsideration is denied. While it may true that A is not be a habitual delinquent,
he however, escaped from prison while serving sentence. The Indeterminate Sentence Law provides that it shall not apply
to persons who escaped from confinement or evaded his sentence.
5. Those Whose Maximum Period of Imprisonment Does Not Exceed One Year.
a. Can an indeterminate sentence be imposed if the maximum term of imprisonment is less than 1 year?
The Indeterminate Sentence Law does not apply if the maximum term of imprisonment does not exceed one year
if the trial court opts to impose penalty of imprisonment less than one year, it should not impose indeterminate penalty but
straight penalty of one year or less instead.
An indeterminate sentence may be imposed if the minimum of the penalty is one year or less, and the
maximum exceeds one year. People vs. Lapis, 391 SCRA 131
1.04 WHAT ARE THE REASONS WHY THE MAXIMUM AND THE MINIMUM TERM OF THE INDETERMINATE SENTENCE HAVE
TO BE FIXED BY THE COURT?
The maximum and minimum term of the sentence have to be fixed because of the following reasons:
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 by his training for release, that there is a reasonable probability that
such prisoner will live and remain at liberty without violating the law, and that such release will not be incompatible with
the welfare of society, said Board may authorize the release of such prisoner on parole, upon such terms and conditions as
may be presented by the Board;
2) Whenever any prisoner released on parole shall, during the period of surveillance, violate any of the conditions
of his parole, the Board of Indeterminate Sentence may issue an order for his re-arrest. In such case the prisoner so rearrested shall serve the remaining unexpired portion of the maximum portion of the maximum sentence for which he was
originally committed to prison, unless the Board of indeterminate Sentence shall, in its discretion, grant a new parole to
the said prisoner.
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.
4) The need for specifying the minimum and maximum periods of the indeterminate sentence is to prevent the
unnecessary and excessive deprivation of liberty and to enhance the economic usefulness of the accused, since he may be
exempted from serving the entire sentence, depending upon his behavior and his physical, mental, and moral
record. Batistis vs. People, 608 SCRA 335, December 16, 2009
1.05 IS THE IMPOSITION OF INDETERMINATE SENTENCE MANDATORY IN CRIMINAL CASES?
Yes. The requirement of imposing an indeterminate sentence in all criminal offenses whether punishable by
the Revised Penal Code or by special laws, with definite minimum and maximum terms, as the Court deems proper within
the legal range of the penalty specified by the law must, therefore, be deemed mandatory. Batistis vs. People, 608 SCRA
335, December 16, 2009
In the instant case, the straight penalty the Court of appeals imposed was contrary to the Indeterminate Sentence
Law, whose Section 1 requires that the penalty of imprisonment should be an indeterminate sentence.
1.06 IS THE LAW APPLICABLE IF THE PENALTY IS DESTIERRO?
No, the law does not apply if the penalty is destierro because it does not involve imprisonment.
destierro - Destierro. 1. Banishment or only a prohibition from residing within the radius of 25 kms. from the actual
residence of the accused for a specified length of time. [Uy Chin Hua v. Dinglasan, 86 Phil. 617, 619]. 2. Although destierro
does not constitute imprisonment [which is a typical example of deprivation of liberty], it is nonetheless a deprivation of
liberty. [People v. Abilong, 82 Phil. 172, 174].
B. RULES INVOLVING OFFENSES IN VIOLATION OF SPECIAL LAW
(BAR QUESTION [2012] HOW IS THE INDETERMINATE SENTENCE LAW APPLIED IN IMPOSING A SENTENCE?)
2.00 IN THE IMPOSITION OF SENTENCE INVOLVING VIOLATION OF SPECIAL LAWS, WHAT DOES SECTION 1 OF THE
INDETERMINATE SENTENCE LAW PROVIDE?
The rule
an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum
shall not be less than the minimum
2.01 GIVE THE RULES IN ARRIVING AT THE MAXIMUM AMD MINIMUM TERM OF THE INDETERMINATE SENTENCE UNDER
A SPECIAL LAW.
Section 1 of the Indeterminate Sentence Law provides that when the offense is punished by a law other than the
not exceed the maximum fixed by law and the minimum shall not be less than the minimum term prescribed by the same.
People vs. Bohol, 560 SCRA 232, July 28, 2008
The following rules shall apply:
a) TO GET THE MAXIMUM:
The maximum term shall not exceed the maximum fixed by said law.
b) TO GET THE MINIMUM:
The minimum shall not be less than the minimum term prescribed by the special law.
Illustrative Cases
a. [BAR Q.] A was convicted of illegal possession of grease guns and two Thompson sub-machine guns punishable under
the old law (RA No. 4) with imprisonment of from five (5) to ten (10) years. The trial court sentenced the accused to suffer
imprisonment of five (5) years and one (1) day. Is the penalty thus imposed correct? Explain.
Suggested Answer: No. The penalty imposed by the court is a straight penalty of five (5) years imprisonment and
one (1) day in violation of the express provision of the Indeterminate Sentence Law under Section 1 which requires that the
court in imposing a prison sentence for an offense punishable under a special law, shall sentence the accused to an
indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by the law and the minimum shall
not be less than the minimum term prescribed by the same.
c. THE PRESENCE OF A MITIGATING CIRCUMSTANCE IS IMMATERIAL IN THE IMPOSITION OF PENALTY INVOLVING
VIOLATION OF A SPECIAL LAW.
[BAR Q:]Andres is charged with an offense defined by a special law. The penalty prescribed for the offense is imprisonment
of not less than five (5) years but not more than ten (10) years. Upon arraignment, he entered the plea of guilty. In the
imposition of the proper penalty, should the Indeterminate Sentence Law be applied? If you were the judge trying the case,
what penalty would you impose on Andres?
Suggested Answer: Yes, the Indeterminate Sentence Law should be applied. In a special law, the indeterminate
sentence shall consist of a maximum term which shall not exceed the maximum fixed by the special law and a minimum
term which shall not be less than the minimum term prescribed by the same.
If I were the judge, I would impose a penalty of imprisonment consisting of any duration not less than 5 years as minimum
term of the sentence and any duration not more than 10 years as maximum term of the sentence.
The plea of guilty as a mitigating circumstance cannot be appreciated because the law violated is a special law.
C. RULES INVOLVING CRIMES PUNISHED BY THE REVISED PENAL CODE.
3.00 IN THE IMPOSITION OF SENTENCE INVOLVING VIOLATION OF THE REVISED PENAL CODE, WHAT DOES SECTION 1 OF
THE INDETERMINATE SENTENCE LAW PROVIDE?
Section 1 expressly provides, Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal
Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which
shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and
the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense
3.01 CITE THE RULE IN ARRIVING AT THE MAXIMUM TERM OF THE INDETERMINATE SENTENCE UNDER THE REVISED PENAL
CODE.
To Get The Maximum Term:
(Sec.1, ISLAW)
view of the attending circumstances, could be properly imposed under the Rules of the said Code. Francisco, Jr. vs. People,
579 SCRA 608, February 18, 2009
3.02 ARE THE RULES OF OFFSETTING THE MODIFYING CIRCUMSTANCES APPLICABLE IN DETERMINING THE MAXIMUM
TERM OF THE INDETERMINATE SENTENCE?
The rules of offsetting the modifying circumstances are applicable. The mitigating or aggravating circumstance is
to be considered in the imposition of the maximum term of the indeterminate sentence. As ruled in Jose vs. People, 436
SCRA 294, the modifying circumstances are considered in the imposition of the maximum term of the indeterminate
sentence.
to wit:
Article 64 of the Revised Penal Code governs the rules for the application of penalties which contain three periods,
When there are neither aggravating nor mitigating circumstances, they shall impose the penalty prescribed by law in its
medium period.
2. When only a mitigating circumstance is present in the commission of the act, they shall impose the penalty in its minimum
period.
3. When only an aggravating circumstance is present in the commission of the act, they shall impose the penalty in its
maximum period.
4. When both mitigating and aggravating circumstances are present, the court shall reasonably offset those of one class
against the other according to their relative weight.
5. When there are two or more mitigating circumstances and no aggravating circumstances are present, the court shall
impose the penalty next lower to that prescribed by law, in the period that it may deem applicable, according to the number
3.03 CITE THE RULE IN ARRIVING AT THE MINIMUM TERM OF THE INDETERMINATE SENTENCE UNDER THE REVISED PENAL
CODE.
The law provides that the minimum should be:
thin the range of the penalty next lower to that prescribed by the code (rpc)
(Sec. 1, ISLAW)
The Indeterminate Sentence Law leaves it entirely within the sound discretion of the court to determine the minimum
penalty, as long as it is anywhere within the range of the penalty next lower without any reference to the periods into which
it might be subdivided. People vs.Jarillo, 601 SCRA 236, September 29, 2009
CONSIDER THE FOLLOWING PRINCIPLES-
The court has the discretion to fix as the minimum term any period of imprisonment within the penalty next lower to
that prescribed by the Code for the offense. In determining the minimum term, it is left entirely within the discretion
of the court to fix anywhere within the range of the penalty next lower without reference to the periods into which it
may be subdivided. The trial court is given the widest discretion to fix the minimum of the indeterminate penalty so
long as that penalty is within the range provided in the law. Garcia vs. People, 425 SCRA 221
-
The modifying circumstances are considered only in the imposition of the maximum term of the indeterminate
sentence. Jarillo vs. People 601 SCRA 236, September 29, 2009
Illustrative Case
a. BAR Q. [2009] In a conviction for homicide, the trial court appreciated two (2) mitigating circumstances and one (1)
aggravating circumstance. Homicide under Article 249 of the Revised Penal Code is punishable by reclusion temporal,
an imprisonment term of twelve (12) years and one (1) day to twenty (20) years. Applying the Indeterminate Sentence
Law, determine the appropriate penalty to be imposed. Explain.
Suggested Answer: In order to obtain the maximum term of the indeterminate sentence, the rule of offsetting is
applicable in view of the attending circumstances. Since there are two (2) mitigating circumstances as against one (1)
aggravating circumstance, the period shall be set in its minimum. Hence, the maximum term of the indeterminate sentence
is reclusion temporal in its minimum period. The minimum which shall be within the range of the penalty next lower to that
prescribed by the Code for the offense. Since the penalty next lower in reclusion temporal is prision mayor, the minimum
term of the indeterminate sentence therefore, is prision mayor, the period of which is upon the discretion of the court.
a. Will your answer be the same if it is a conviction for illegal possession of drugs under R.A. 9165 (Dangerous Drugs Act
of 2002), the prescribed penalty of which is also imprisonment for a term of twelve (12) years and one (1) day to twenty
(20) years? Why or why not?
Suggested Answer: No. It is a settle rule that the rule of offsetting is not applicable in crimes punished under a special
penal law as in this case. The presence of any generic aggravating and ordinary mitigating circumstances will not affect the
proper imposition of the penalty.
1. WITH THE PRESENCE OF PRIVILEGED AND ORDINARY MITIGATING CIRCUMSTANCES BUT WITHOUT ANY
AGGRAVATING CIRCUMSTANCES.
Illustrative case
[MODIFIED BAR Q.] Homicide is punishable by reclusion temporal. The accused, 17 years of age, with discernment,
committed the crime of frustrated homicide while under the state of passion and obfuscation and acting in immediate
vindication of a grave offense committed by the deceased against his mother. Accused thereafter surrendered voluntarily
immediately after the commission of the offense, and pleaded guilty at the trial. What is the proper penalty to be imposed
upon him?
a)
The proper penalty is prision mayor in its minimum period as the maximum term of the indeterminate sentence and
prision correccional as its minimum term the period
b) The proper penalty is prision correccional in its minimum period as the maximum term of the indeterminate sentence
and arresto mayor
c) The proper penalty is prision correccional as the maximum term of the indeterminate sentence the period of which is
arresto mayor in its minimum period as its minimum term.
d) The proper penalty is arresto mayor only. The Indeterminate Sentence Law will not apply.
Note: The penalty imposed in consummated homicide is reclusion temporal. Since the accused is convicted only of
frustrated homicide, the penalty will be reduced by one degree, which is prision mayor. The accused who is a minor, is
entitled to a privileged mitigating circumstance of one degree lower since he acted with discernment, hence, the penalty
becomes prision correccional.
There are two or more mitigating circumstances present in this case and no aggravating circumstances present.
Under Article 64 paragraph 5 of the Revised Penal Code, the court shall impose the penalty next lower to that prescribed
by law. The penalty therefore shall be reduced to arresto mayor.
Arresto mayor carries the maximum term of imprisonment of only six months. The Indeterminate Sentence Law
will not apply to those whose maximum term of imprisonment does not exceed one year. Consequently, the proper
penalty to be imposed upon the accused is a straight penalty of arresto mayor.
CASES
1. DELIA D. ROMERO vs. PEOPLE OF THE PHILIPPINES
G.R. No. 171644: November 23, 2011
HELD: It is basic law that the application of the Indeterminate Sentence Law is mandatory where imprisonment exceeds
one (1) year.
2. ROSANA ASIATICO y STA. MARIA vs. PEOPLE OF THE PHILIPPINES
G.R. No. 195005: September 12, 2011
FACTS: Rosana Asiatico was convicted of illegal possession of dangerous drugs penalized under Section 11, Article II of (RA)
9165 or the Comprehensive Dangerous Drugs Act of 2002 and sentenced to suffer of imprisonment of twelve years and one
day.
ISSUE: Whether or not the sentence imposed is proper.
HELD: The courts a quo erred in imposing a straight penalty of "imprisonment of twelve (12) years and one day." Sec. 1 of
the ISL mandates that, in case of a special law, the accused shall be sentenced "to an indeterminate sentence, the maximum
term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term
prescribed by the same."
ADDENDUM:
1. Parole; Section 3 of Republic Act No. 9346 provides that persons convicted of offenses punished with reclusion perpetua,
or whose sentences will be reduced to reclusion perpetua, shall not be eligible for parole under Act No. 4103, otherwise
known as the Indeterminate Sentence Law, as amended. (People of the Philippines vs. Vicente Candellada, 701 SCRA 19,
G.R. No. 189293, July 10, 2013, Leonardo-De Castro, J.)
2. Effect of suspension of death penalty.
Under Article 266-B of the Revised Penal Code, as amended, the imposable penalty for qualified rape is death. With
position of the supreme penalty of death has been prohibited. Pursuant to Section 241 thereof, the
penalty to be meted out to appellant shall be reclusion perpetua. (People vs. Tabayan, G.R. No. 190620, June 18, 2014.Perez,
J.)
-oooOOOooo-
CHAPTER III THE ANTI-GRAFT AND CORRUPT PRACTICES
ACT
Republic Act No. 3019
[BAR Q. 2014, 2012, 2011, 2010, 2009, 2003, 2000, 1999, 1997, 1991, 1990, 1988, 1985]
___________________________________________________
1.00 HOW MUST THE LAW BE CONSTRUED?
ct being
lawful or unlawful, construction should be in favor of its lawfulness. Bustillo, Sumilhig, Jr., and Billedo, Jr., vs. People, May 12, 2010
1.01 WHO MAY BE LIABLE UNDER SECTION 3 OF R.A. 3019?
The law punishes not only 1) public officers who commit prohibited acts enumerated under Section 3 but 2) also those who
induce or cause the public official to commit those offenses. Santillano vs. People, March 03, 2010
1.02 WHO ARE DEEMED INCLUDED AS PUBLIC OFFICER?
A public officer includes elective and appointive officials and employees, permanent or temporary, whether in the classified or
unclassified or exempt service receiving compensation, even nominal, from the government; Under the Anti-Graft Law, the nature of
one's appointment, and whether the compensation one receives from the government is only nominal, is immaterial because the person
so elected or appointed is still considered a public officer.
Thus, in Javier v. Sandiganbayan, First Division, 599 SCRA 324, September 11, 2009, where petitioner was appointed by the
President to the Governing Board of the NDBD and her term is only for a year, such does not make her private person exercising a public
function. The fact that she is not receiving a monthly salary is also of no moment. Section 7, R.A. No. 8047 provides that members of
the Governing Board shall receive per diem and such allowances as may be authorized for every meeting actually attended and subject
to pertinent laws, rules and regulations. The Supreme Court held that the nature of one's appointment, and whether the compensation
one receives from the government is only nominal, is immaterial because the person so elected or appointed is still considered a public
officer.
1.03 WHO MAY BE LIABLE UNDER SECTION 3?
a.
The law punishes not only public officers who commit prohibited acts enumerated under Sec. 3, but also those who induce or
cause the public official to commit those offenses. This is supported by Sec. 9, which includes private persons as liable for
violations under Secs. 3, 4, 5, and 6.
b.
Private persons found acting in conspiracy with public officers may be held liable for the applicable offenses found in Section
3 of the law. People vs.Santillano, 614 SCRA 164, March 3, 2010
Illustrative case
BAR Q.[1985] Cris Vera, an influential member of the Sangguniang Panlunsod of Butuan City and a well-known radio commentator of
the said place, addressed a written communication to Director Jose of Butuan City LTO, asking for the issuance of a temporary permit
for a special trip to Ozamis City of a TPU jeepney belonging to Vera's relative which got involved in a vehicular collision with a private
car in the latter's place. The purpose of the said request is to make it appear that the trip although not within the authorized route of
the TPU jeepney's certificate of convenience, was nevertheless authorized so as to enable the owner to recover on the insurance policy.
Director Jose refused, fearful of the disastrous consequences. Thereafter, he was the subject of unsavory comments and
furious attack by Cris Vera in his program. Director Jose then countered with a criminal complaint for violation of the Anti-Graft Law
with the Tanodbayan against Cris Vera. Will the complaint prosper? Discuss with reasons.
Suggested Answer: No, the complaint against Cris Vera will not prosper. His act does not constitute persuading, inducing or
influencing under Sec. 3 (a) of Republic Act 3019. To induce, persuade or influence connotes the giving of a price, reward or promise.
Cris Vera
a. ELEMENTS UNDER SECTION 3 (B) OF R.A. NO. 3019.
To be convicted of violation of Section 3(b) of R.A. No. 3019, the prosecution has the burden of proving the following elements:
1) the offender is a public officer;
2) who requested or received a gift, a present, a share, a percentage, or benefit;
3) on behalf of the offender or any other person;
4) in connection with a contract or transaction with the government;
5) in which the public officer, in an official capacity under the law, has the right to intervene. Cadiao-Palacios vs. People, 582
SCRA 713, March 31, 2009
b.
It is very clear from Section 3 (b) of RA No. 3019 that the requesting or receiving of any gift, present, share, percentage, or benefit
nder the law.
What is required is that the transaction involved should at least be described with particularity and proven.
In Garcia vs. Sandiganbayan, G.R. No. 155574, November 20, 2006, the Supreme Court agreed with petitioner that the prosecution
miserably failed to prove the existence of the fourth element. It is very clear from Section 3 (b) of RA No. 3019 that the requesting or
receiving of any gift, present, share, percentage, or benefit must be in connection with
wherein the public
officer in his official capacity has to intervene under the law.
In this case, the prosecution did not specify what transactions the Company had with the LTO that petitioner intervened in when
he allegedly borrowed the vehicles from the Company. It is insufficient that petitioner admitted that Company has continually transacted
with his office. What is required is that transaction involved should at least be described with particularly and proven.
To establish existence of the fourth element, the relation of the fact requesting and/or receiving transacts with petitione
Office for the registration of its motor vehicles, in the reporting of its engine and chassis number, as well as the submission of its vehicle
the link between the 56 alleged
borrowings with their corresponding transactions.
c. What are the 3 distinct acts punished under this paragraph?
3 (b) penalizes three distinct acts:
1) demanding or requesting;
2) receiving; or
3) demanding, requesting and receiving any gift, present, share, percentage, or benefit for oneself or for any other
person, in connection with any contract or transaction between the government and any other party, wherein a public officer in an
official capacity has to intervene under the law.
Each of these modes of committing the offense is distinct and different from one another. Proof of existence of any of them suffices
to warrant conviction. Cadiao-Palacios vs. People, 582 SCRA 713, March 31, 2009
d. Must the demand be made by the accused from the contractor himself?
No. It is irrelevant from whom the accused demanded her percentage share of the project cost. As held in Preclaro v.
Sandiganbayan, 247 SCRA 454 (1995), it is irrelevant from whom petitioner demanded her percentage share of the project cost
quired by
Section 3(b) of R.A. No. 3019.
(D) Accepting or having any member of his family accept employment in a private enterprise which has pending official
business with him during the pendency thereof or within one year after its termination.
brother in law
family Valera case
To be found guilty under said provision, the following elements must concur:
(1) the offender is a public officer;
udicial functions;
(3) the act was done through manifest partiality, evident bad faith, or gross inexcusable negligence; and
(4) the public officer caused any undue injury to any party, including the Government, or gave any unwarranted benefits, advantage or
preference. Sison vs. People, 614 SCRA 670, March 9, 2010
People vs. Ong
G. R. NO. 176546, September 25, 2009
FACTS: Ong as Mayor of Angadana, Isabela, bought an Isuzu dump truck for P750,000.00 from Ching for the use of the municipality. A
letter-complaint was filed against petitioner by her successor, Siquian and several other Sangguniang Bayan members accusing her of
malversation of public funds and property
The Graft Investigation Officer found no probable cause for the charges but she was indicted for violation of Sec. 3 (e) of RA
No. 3019, as amended. During trial, the sales manager of Christian Motor Sales in Cabanatuan City testified that the cost ranged from
P190,000.00 P490,000.00. Complainants testified that the dump truck was bought without conducting a public bidding or a resolution
by the Sangguniang Bayan. The Sandiganbayan rendered its Decision finding petitioner guilty beyond reasonable doubt of violation of
Sec. 3 (e) of RA No. 3019.
ISSUE: Whether the act complained of constitutes a violation of sec 3 (e) of RA No. 3019.
HELD: The Supreme Court finds that all the elements of the offense charged have been duly established beyond reasonable
doubt. Petitioner, being then the Mayor of Angandaan, Isabela is a public officer discharging administrative and official functions. The
act of purchasing the subject truck without the requisite public bidding and authority from the Sangguniang Bayan displays gross and
inexcusable negligence. Undue injury was caused to the Government because said truck could have been purchased at a much lower
price.
The Sandiganbayan correctly ruled that by procuring the subject truck through a negotiated purchase without public bidding,
petitioner failed to comply with the procedure. Indeed, as the local chief executive, petitioner is not only expected to know the proper
procedure in the procurement of supplies, she is also duty bound to follow the same and her failure to discharge this duty constitutes
gross and inexcusable negligence.
Price quotations obtained from several suppliers as well as the testimonies of Ramon de Guzman Sevilla, Ruben Lappay and
Mirasol Lappay proved that the dump truck purchased by petitioner was over-priced, hence, had petitioner observed the proper
procurement procedure, the municipality of Angandaan could have acquired a dump truck similar to, if not better than the one originally
government while at the same time gave unwarsnted benefits to Josephine Ching.
2. With Respect To the 3rd Element, In order to be held guilty of violating Section 3 (e) of Republic Act No. 3019, the provision itself
explicitly requires that the accused caused undue injury for having acted with manifest partiality, evident bad faith, or with gross
inexcusable negligence, in the discharge of his official administrative or judicial function.
a. Must All of these Circumstances be Present in Order to Convict the Accused?
No. Proof of any of these three in connection with the prohibited acts mentioned in Section 3 (e) of RA 3019 is enough to convict.
Sison vs. People, March 09, 2010
b.
Define Manifest Partiality.
han as they
Sison vs. People, March 09, 2010
Manifest partiality exists when the accused has a clear, notorious, or plain inclination or predilection to favor one side or one
person rather than another. It is synonymous with bias, which excites a disposition to see and report matters as they are wished for
rather than as they are. Reyes vs. People, August 04, 2010
c. Define Evident Bad Faith.
Bad faith does not simply connote bad judgment or negligence; it imputes a dishonest purpose or some moral obliquity and
conscious doing of wrong; a breach of sworn duty through some motive or intent or ill will; it partakes of the nature of fraud. Sison vs.
People, March 09, 2010
Evident bad faith connotes a manifest deliberate intent on the part of the accused to do wrong or to cause damage. It
contemplates a breach of sworn duty through some perverse motive or ill will. Reyes vs. People, August 04, 2010
d.
Define Gross Negligence.
Gross negligence has been so defined as negligence characterized by the want of even slight care acting or omitting to act in a
situation where there is a duty to act, not inadvertently but willfully and intentionally with a conscious indifference to consequences in
so far as other persons may be affected. It is the omission of that care which even inattentive and thoughtless men never fail to take on
their own property. Sison vs. People, March 09, 2010
Gross inexcusable negligence does not signify mere omission of duties nor plainly the exercise of less than the standard degree of
prudence it refers to negligence characterized by the want of even the slightest case, acting or omitting to act in a situation where there
is a duty to act, not inadvertently but willfully and intentionally, with conscious indifference to consequences in so far as other persons
may be affected. Sistoza vs. Desierto, 388 SCRA 307
3. Under the 4th element, may an accused be charged under either mode or both?
There are two ways by which Section 3(e) of RA 3019 may be violated
a.
the first mode: by causing undue injury to any party, including the government, or
b.
the second mode: by giving any private party any unwarranted benefit, advantage or preference
Although neither mode constitutes a distinct offense, an accused may be charged under either mode or both. The use of the
disjunctive "or" connotes that the two modes need not be present at the same time. In other words, the presence of one would suffice
for conviction. Ibid.
Undue injury caused to any party, including the government, under Section 3 (e) of Republic Act No. 3019, could only mean actual
injury or material damage which must be established by evidence. People vs. Sandiganbayan, August 23, 2010
5.
Under the Second Mode, will it suffice that the accused has given unjustified favor or benefit to another, in the exercise of his
official, administrative or judicial functions?
Yes, in order to be found guilty under the second mode, it suffices that the accused has given unjustified favor or benefit to another,
in the exercise of his official, administrative or judicial functions.
As an example, in Sison vs. People 614 SCRA 670, March 9, 2010, petitioner did just that. The fact that he repeatedly failed to
follow the requirements of RA 7160 on personal canvass proves that unwarranted benefit, advantage or preference was given to the
winning suppliers. These suppliers were awarded the procurement contract without the benefit of a fair system in determining the
best possible price for the government. The private suppliers, which were all personally chosen by respondent, were able to profit
from the transactions without showing proof that their prices were the most beneficial to the government.
6. Application of par (3) to public bidding.
( f ) Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable
time on any matter pending before him for the purpose of obtaining, directly or indirectly, from any person
interested in the matter some pecuniary or material benefit or advantage, or for the purpose of favoring his own
interest or giving undue advantage in favor of or discriminating against any other interested party.
1.
What are the elements under Section 3(G) of R.A. No. 3019?
To be indicted of the offense under Section 3(G) of R.A. No. 3019, the following elements must be present:
a. that the accused is a public officer;
b. that he entered into a contract or transaction on behalf of the government; and
c. that such contract or transaction is grossly and manifestly disadvantageous to the government. Guy vs. People, 582 SCRA 108,
March 20, 2009
2.
If there is an allegation of conspiracy, may a private person be held liable together with the public officer?
Yes, if there is an allegation of conspiracy, a private person may be held liable together with the public officer, in consonance with
the avowed policy of the Antialike which may constitute graft or corrupt practices or which may lead thereto. Guy vs. People, 582 SCRA 108, March 20, 2009
3.
Would the lack of public bidding automatically equate to a manifest and gross disadvantage to the government?
No. The lack of public bidding alone does not automatically equate to a manifest and gross disadvantage to the government.
Caunan vs. People, 597 SCRA 538, September 2, 2009.
As the Supreme Court had declared in Nava v. Palattao (499 SCRA 745 [2006]), the absence of a public bidding may mean that
the government was not able to secure the lowest bargain in its favor and may open the door to graft and corruption. However, this
does not satisfy the third element of the offense charged, because the law requires that the disadvantage must be manifest and gross.
People vs. Caunan
G. R. NO. 181999, September 2, 2009
FACTS: Marquez and Caunan, along with four (4) other local government officials of Parañaque City and Antonio Razo were charged of
violation of the Anti-Graft and Corrupt Practices Act. The Informations were filed based on the findings of the COA that there was
overpricing in certain purchase transactions of Parañaque City.
To ascertain the prevailing price of walis tingting for the years 1996 to 1998, the audit team made a canvass of the purchase
prices of the different merchandise dealers of Parañaque City. The audit team attempted to purchase walis tingting from the name
suppliers of Parañaque City but when the audit team went to the listed addresses of the suppliers, they were occupied by other business
establishments. Thereafter, the audit team urchased from a supplier that sold walis tingting.in Las Pinas City.
The Sandiganbayan rendered judgment finding petitioners Caunan and Marquez, along with Silvester de Leon and Marilou
Tanael, guilty of violating Section 3 (g) of R. A. No. 3019.
ISSUE: Whether or not petitioners are guilty of violation of Section 3 (g) of R.A. No. 3019.
HELD: The prosecution was not able to demonstrate the requisite burden of proof beyond reasonable doubt where what was only
shown was that the audit team reached a conclusion of gross overpricing based on the documents which, at best, would merely
indicate the present market price of walis tingting of a different specification, purchased from a non-supplier of Parañaque City, and
the price of walis tingting purchases in Las Piñas City the prosecution should have presented evidence of the actual price of the
particular walis tingting purchased at the time of the audited transaction or, at the least, an approximation thereof. Failing in these,
there is no basis to declare that there was a glaring overprice resulting in gross and manifest disadvantage to the government.
The audit team reached a conclusion of gross overpricing based on documents which, at best, would merely indicate the
present market price of walis tingting of a different specification, purchased from a non-supplier of Parañaque City, and the price
of walis tingting purchases in Las Piñas City.
Effectively, the prosecution was unable to demonstrate the requisite burden of proof. Most obvious would be the market price
of walis tingting in Las Piñas City which was used as proof of overpricing in Parañaque City. For a charge under Section 3 (g) to prosper,
the following elements must be present: (1) that the accused is a public officer; (2) that he entered into a contract or transaction on
behalf of the government; and (3) that such contract or transaction is grossly and manifestly disadvantageous to the government.
The Supreme Court agrees with petitioners that the fact of overpricing is embedded in the third criminal element of Section 3
(g) of R.A. No. 3019. Given the factual milieu of this case, the subject contracts would be grossly and manifestly disadvantageous to the
government if characterized by an overpriced procurement. However, the gross and manifest disadvantage to the government was not
sufficiently shown because the conclusion of overpricing was not also adequately proven.
1.
THE ESSENTIAL ELEMENTS UNDER SECTION 3(H) OF R.A NO. 3019
The essential elements of the violation of said provision are as follows:
1) The accused is a public officer;
2) he has a direct or indirect financial or pecuniary interest in any business, contract or tran saction;
3. He either:
a) intervenes or takes part in his official capacity in connection with such interest, or
b) is prohibited from having such interest by the Constitution or by law. Teves vs. The Commission on Elections, 587 SCRA 1,
April 28, 2009.
To illustrate, in Teves v. Sandiganbayan, 447 SCRA 309 (2004), petitioner was convicted under the second mode for having
pecuniary or financial interest in a cockpit which is prohibited under Sec. 89(2) of the Local Government Code of 1991.
View that under Section 3(h) of Republic Act No. 3019, the element of "financial or pecuniary interest" contemplated under the
Second Mode of violating Sec. 3(h) is one prohibited by law, a qualification not present in the First Mode Teves vs. Sandiganbavan, 447
SCRA 309.
3. What are the two (2) modes by which a public officer may violate paragraph 3(H) of R.A. 3019?
There are two modes by which a public officer who has a direct or indirect financial or pecuniary interest in any business, contract, or
transaction may violate Section 3(h) of R.A. 30191.
The first mode is when the public officer intervenes or takes part in his official capacity in connection with his financial or pecuniary
interest in any business, contract, or transaction.
2.
The second mode is when he is prohibited from having such an interest by the Constitution or by law.
(i) Directly or indirectly becoming interested, for personal gain, or having a material interest in any transaction or act requiring the
approval of a board, panel or group of which he is a member, and which exercises discretion in such approval, even if he votes against
the same or does not participate in the action of the board, committee, panel or group.
Interest for personal gain shall be presumed against those public officers responsible for the approval of manifestly unlawful,
inequitable, or irregular transactions or acts by the board, panel or group to which they belong.
( j) Knowingly approving or granting any license, permit, privilege or benefit in favor of any person not qualified for or not legally
entitled to such license, permit, privilege or advantage, or of a mere representative or dummy of one who is not so qualified or entitled.
(k) Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to
unauthorized persons, or releasing such information in advance of its authorized release date. ex. clerk of court releases in advance
the judgment result
The person giving the gift, present, share, percentage or benefit referred to in subparagraphs (b) and (c); or offering or giving to the
public officer the employment mentioned in subparagraph (d); or urging the divulging or untimely release of the confidential
information referred to in subparagraph (k) of this section shall, together with the offending public officer, be punished under Section
nine of this Act and shall be permanently or temporarily disqualified in the discretion of the Court, from transacting business in any
form with the Government.
It is a settled doctrine that R.A. No. 3019 should be read to protect the State from fraud by its own officials. Section 13 of R.A.
No. 3019 covers two types of offenses; (1) any offense involving fraud on the government; and (2) any offense involving public funds or
property.
Illustrative case
BAR Q. [2000] A month after the arraignment of Brad Kit, Commissioner of the Housing and Land Use Regulatory Board, who was
charged with violation of Section 3(h) of republic Act 3019. (Anti-Graft and Corrupt Practices Act before the Sandiganbayan, the Office
of the Special Prosecutor filed a Motion to Suspend Accused Pendete Lite pursuant to Section 13 of the Anti-Graft Law. The Court
granted the motion and suspended accused Brad Kit. The court granted the and suspended accused Brad Kit for a period of 90 days.
Accused assailed the constitutional validity of the suspension order on the ground that it partakes of a penalty before judgment of
conviction is reached and is thus violative of his constitutional right to be presumed innocent. He also claimed that this provision of
the law on suspension pendente lite applies only to elective officials and not to appointed ones like him. Rule with reasons.
Suggested Answer: The suspension order does not partake of a penalty and in no way violative of Brad Kit's constitutional right
to be presumed innocent. Under the law, suspension pendente lite applies to all public officials indicted upon a valid information under
RA No. 3019, the purpose is to prevent said official from hampering or influencing the normal course of the investigation.
1. Private person may be liable.
It bears to reiterate the settled rule that private persons, when acting in conspiracy with public officers, may be indicted and,
if found guilty, held liable for the pertinent offenses under Section 3 (e) of R.A. 3019, in consonance with the avowed policy of the antigraft law to repress certain acts of public officers and private persons alike constituting graft or corrupt practices act or which may lead
thereto. This is the controlling doctrine as enunciated by the Court in previous cases.(Edelbert C. Uyboco vs. People, G.R. No. 211703,
December 10, 2014, Velasco Jr., J.)
2. Good faith of heads of offices in signing a document.
The good faith of heads of offices in signing a document will only be appreciated if they, with trust and confidence, have relied
on their subordinates in whom the duty is primarily lodged. (Sanchez vs. People, 703 SCRA 586, G.R. No. 187340, August 14, 2013,Sereno,
CJ.)
3. Manifest partiality, Evident bad faith and Gross inexcusable negligence explained.
In Uriarte vs. People, the Court explained that Section 3(e) of RA 3019 may be committed either by dolo, as when the accused
acted with evident bad faith or manifest partiality, or by culpa, as when the accused committed gross inexcusable negligence. There is
inclination or predilection to favor one side or person rather than another.
-interest or ill
acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with conscious
indifference to consequences insofar as other persons may be affected. (Jovito C. Plameras vs. People of the Philippines, G.R. No. 187268,
September 4,2013, Perez, J.)
4. When can private persons be charged.
However, private persons may likewise be charged with violation of Section 3(g) of RA 3019 if they conspired with the public
officer. (Gregorio Sing Ian, Jr. vs. Sandiganbayan (3rd division), The People of the Philippines, G.R. Nos.195011-19, September 30,
2013,Del Castillo, J.)
5. Contract and transaction explained.
A transaction, like a contract, is one which involves some consideration as in credit transactions and this element
(consideration) is absent in the investigation conducted by the petitioner. In the light of the foregoing, the Court agrees with the
petitioner that it was error for the Sandiganbayan to have convicted him of violating Sec. 3 (b) of R.A. No. 3019. (People vs.
Sandiganbayan, G.R. No. 188165/G.R. No. 189063 December 11, 2013, Bersamin, J.)
Notably, the offense defined under Section 3 (e) of R.A. No. 3019 may be committed even if bad faith is not attendant.
Thus, even assuming for the sake of argument that Coloma did not act in bad faith in rendering his report, his negligence under
the circumstances was not only gross but also inexcusable. (Coloma vs. Sandiganbayan, G.R. No. 205561, September 24, 2014,
Mendoza, J.)
-ooOOOooo-
CHAPTER IV. THE COMPREHENSIVE DANGEROUS DRUGS
ACT OF 2002
Republic Act No. 9165
Illustrative case
BAR Q.[2006]After receiving a reliable
information that Dante Ong, a notorious drug smuggler, was arriving on PAL Flight No. PR181, PNP Chief Inspector Samuel
Gamboa formed a group of anti-drug agents. When Ong arrived at the airport, the group arrested him and seized his
attache case. Upon inspection inside the Immigration holding area, the attache case yielded 5 plastic bags of heroin
weighing 500 grams. Chief Inspector Gamboa took the attache case and boarded him in an unmarked car driven by P03
Pepito Lorbes. On the way to Camp Crame and upon nearing White Plains corner Edsa, Chief Inspector Gamboa ordered
P03 Lorbes to stop the car. They brought out the drugs from the case in the trunk and got 3 plastic sacks of heroin. They
then told Ong to alight from the car. Ong left with the 2 remaining plastic sacks of heroin. Chief Inspector Gamboa advised
him to keep silent and go home which the latter did. Unknown to them, an NBI team of agents has been following them
and witnessed the transaction. They arrested Chief Inspector Gamboa and P03 Lorbes. Meanwhile, another NBI team
followed Ong and likewise arrested him. All of them were later charged.
What are their respective criminal liabilities?
Suggested Answer: Chief Inspector Samuel Gamboa and P03 Pepito Lorbes are liable as protector/coddler to the
illegal importation of the dangerous drugs into the Philippines. They knew Mr. Ong violated the Comprehensive Drugs Act
yet, they used their position to facilitate his escape with a view to prevent his arrest, prosecution and conviction .
The police officers are guilty of misappropriation and failure to account for seized dangerous drugs punished under Sec 27
of R.A. 91165. On the other hand, Dante Ong is guilty of illegal importation of dangerous drugs under Art II Sec. 4, RA 9165.
a. What is a BUY- BUST OPERATION?
A buy-bust operation is a form of entrapment which had repeatedly been accepted to be a valid means of arresting
violators of the Dangerous Drugs Law; In every prosecution for Illegal sale of prohibited or regulated drugs, the following
elements must be established (1) the identity of the buyer and seller, the object and the consideration; and (2) the delivery
of the thing sold and the payment thereof. People vs.Suson and Fortich, G.R. No. 152848, July 12, 2006
b. Principles in Buy-Bust Operation.
ey is not indispensable for the conviction of an accused provided
that the sale of marijuana is adequately proven by the prosecution. People vs. Pascual, 208 SCRA 393
2. It is not surprising for a police officer to use his own money during the buy-bust operation-- such use of money does not
adversely affect the case against the accused. There is no requirement that the police must apply fluorescent powder to
the buy-bust money (BUT IT IS BETTER FOR PROSECUTION TO HAVE/PRESENT POWDER DUSTING RESULT) to prove the
commission of the offense; there is no law or rule of evidence requiring the use of fluorescent powder or the taking of the
culprit's fingerprints from the bag containing the shabu.
3. What is material is the delivery of the prohibited drug to the buyer which in this case, was sufficiently proved by the
prosecution through the testimony of the poseur-buyer( OR THE POLICE OFFICER WHO ACTS AS BUYER) and the
presentation of the articles itself before the court. Besides, the money was already marked by the poseur buyer with his
initials . Neither is fingerprints a requirement in buy-bust operations. There is no law or rule of evidence requiring the use
of fluorescent powder or the taking of the culprits fingerprints from the bag containing the shabu. People vs. Saidmin
Macabalang GR No. 168694; Novemeber 27, 2006
4. Mission order, court order and surveillance progress report are not required in buy-bust operation. People vs. Ong Co,
245 SCRA 733
5. There is no fixed procedure for conducting buy- bust operations. People vs. Cruda, 212 SCRA 125
reason: because police are not acting on the same circumstances, always case to case basis.
6.
sale but seeing the accused selling the prohibited drugs. People vs. Fernandez, 228 SCRA 301
c. Is non-
of the
NO
Coordination with the Philippine Drug Enforcement Agency (PDEA) is not an indispensable requirement before
police authorities may carry out a buy-bust operation a buy-bust operation is not invalidated by mere non-coordination
with the PDEA. People vs. Roa
d. ELEMENTS NECESSARY FOR THE PROSECUTION OF ILLEGAL SALE OF DRUGS.
The elements necessary for the prosecution of illegal sale of drugs are:
(1) the identity of the buyer and the seller, the object, and consideration; and
(2) the delivery of the thing sold and the payment thereof.
What is material to the prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale
actually took place, coupled with the presentation in court of evidence of corpus delicti. People vs. Macatingag, G.R. No.
181037, January 19, 2009
e. DIFFERENTIATE THE ELEMENTS OF ILLEGAL SALE FROM ILLEGAL POSSESSION OF DANGEROUS DRUGS.
In a prosecution for illegal sale of dangerous drugs, the following elements must first be established: (1) proof that
the transaction or sale took place and (2) the presentation in court of the corpus delicti or the illicit drug as evidence.
In a prosecution for illegal possession of a dangerous drug, it must be shown that (1) the accused was in possession
of an item or an object identified to be a prohibited or regulated drug, (2) such possession is not authorized by law, and (3)
the accused was freely and consciously aware of being in possession of the drug. People vs. Darisan, G.R. No. 176151,
January 30, 2009
Section 7
visitor
employee liable if aware of nature of the place
visit knowing as the drug den
section 8, 9, 10
a. Does RA6425 prescribe a single punishment for illegal possession of shabu and marijuana committed at the
same time and in the same place?
RA 6425 does not prescribe a single punishment for the various offenses enumerated in the law; RA 6425
enumerates the punishable acts and its corresponding penalty; it also specifies the particular drugs and corresponding
quality in the imposition of penalty.
The prosecution was correct in filing two separate Informations for the crimes of illegal possession of shabu and
illegal possession of marijuana. Clearly, the legislature did not intend to lump these two separate crimes into just one crime
of possession of dangerous drugs. Otherwise there would be no need to specify the different kinds of drugs and
corresponding quantity in the application of the appropriate penalty. Multiple offenses can be committed under RA 6425
even if the crimes are committed in the same place, at the same time, and by the same person. Thus, this Court has upheld
rulings of the lower courts convicting an accused charged with two separate crimes of illegal possession of shabu and illegal
possession of marijuana, even if the crimes were committed at the same time and in the same place.
As ruled in People vs Tira, 430 SCRA 134 (2004), illegal possession of shabu and marijuana constitutes two separate
crimes and therefore two informations should be filed. People vs. Hon Marcial Empleo, In His Capacity As Presiding Judge
Of Branch 9, Regional Trial Court, Dipolog City, Dante Mah Y Cabilin
b. Enumerate the ELEMENTS OF THE CRIME OF ILLEGAL POSSESSION OF DANGEROUS DRUGS.
The elements of the crime of illegal possession of dangerous drugs are as follow:
(a) the accused was in possession of the regulated drugs;
(b) the accused was fully and consciously aware of being in possession of the regulated drug; and
(c) the accused had no legal authority to possess the regulated drug. Possession may actual or constructive.
People vs. Eliza Buan, G.R. No. 168773, OCT. 27, 200
c. What is the concept of POSSESSION ?
The court in People vs Tira, 430 SCRA 134 (2004), ruminated on the juridical concept of possession and the
evidence necessary to prove the said crime. Since the crime charged is mala prohibita, criminal intent is not essential
element. However the prosecution must prove that the accused had the intent to possess (animus posidendi) the drugs.
Possession, under the law, includes not only actual possession, but also constructive possession. Constructive possession
exists when the drug is under the dominion and control of the accused or when he has the right to exercise dominion and
control over the place where it is found. Exclusive possession or control is not necessary. The accused cannot avoid
conviction if his right to exercise control and dominion over the place where the contraband is located, is shared with
another. Thus conviction need not be predicated upon exclusive possession, and the showing of non-exclusive and any
reasonable inference drawn therefrom. 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.
The fact that the appellant was not in the residence when it was searched nor caught in flagrante delicto
possessing the illicit drugs and paraphernalia does not dent the case of the prosecution. As a matter of law, when
prohibited and regulated drugs (under the old law) are found in a house or other building belonging to and occupied by
a particular person, the presumption arises that such person is in possession of such drugs in violation of law, and the fact
of finding the same is sufficient to convict. Otherwise stated, the finding of the illicit drugs and paraphernalia in the house
owned by the appellant raised the presumption of knowledge and, standing alone, was sufficient to convict. People vs.
Torres, G.R. No. 170837, September 12, 2006
d. When will the PRIMA FACIE EVIDENCE OF KNOWLEDGE or ANIMUS POSSIDENDI arise?
Mere possession of a regulated drug per se constitutes prima facie evidence of knowledge or animus possidendi
sufficient to convict an accused absent a satisfactory explanation of such possession- the onus probandi is shifted to the
accused, to explain the
it was his duty to explain his innocence on the regulated drug seized from his person. People vs. Gomez, G.R. No. 175319,
January 15, 2010
e. What must be proved to establish CONSTRUCTIVE POSSESSION?
In order to establish constructive possession, the People must prove that petitioner has dominion or control on
either the substance or the premises where found. The state must prove adequate nexus (connection) between the
accused and the prohibited substance. Possession of dangerous drugs constitutes prima facie evidence of knowledge or
animus possidendi sufficient to convict an accused in the absence of any satisfactory explanation of such possession. The
burden of evidence is shifted to petitioner to explain the absence of animus possidendi. People vs .Buan, G.R. No. 168773,
OCT. 27, 2006
Illustrative case
BAR Q. [2002] A and his fiancée B were walking in the plaza when they met a group of policemen who had been tipped off
that A was in possession of prohibited drugs. Upon seeing the policemen and sensing that they were after him, A handed
a sachet containing shabu to his fiancée B, telling her to hide it her handbag. The policemen saw B placing the sachet inside
her handbag. If B was unaware that A was a drug user or pusher or that what was inside the sachet given to her was shabu,
is she nonetheless liable under the Dangerous Drugs Act?
Suggested Answer: B is not criminally liable. The facts clearly show the absence of animus possidendi or intent to
possess which is an element of the crime of illegal possession of drugs. The accused was not fully and consciously aware of
being in possession of the dangerous drug.
7. Section 12
- possess any equipment, unless authorized by law
presumption : prima facie evidence that you have consumed to have used dangerous drugs using the instrument
Illustrative case
BAR Q. [2005] Obie Juan is suspected to have in his possession an unspecified amount of methamphetamine hydrochloride
100 grams of the said dangerous drug in his possession. He was subjected to a drug test and was found positive for the
use of marijuana, another dangerous drug. He was subsequently charged with two crimes: Violation of Section 11, Article
Are the charges proper?
Explain.
Suggested Answer: The charge of possession of shabu under Section 11, Article II of RA 9165 is proper. The
entrapment operation yielded the discovery of 100 grams of the said dangerous drug in his possession. However, the charge
of use of marijuana is not proper. Section 15 of Rep Act 9165 is explicit. It excludes penalties for use of dangerous drugs
ection 11 of
9. Section 16. Cultivation or Culture of Plants Classified as Dangerous Drugs or are Sources Thereof
10. Section 18. Unnecessary Prescription of Dangerous Drugs.
11. Section 19. Unlawful Prescription of Dangerous Drugs.
duly recorded authorized movements and custody of seized drugs or controlled
chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation
to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Such record of movements and
custody of seized item shall include the identity and signature of the person who held temporary custody of the seized item,
the date and time when such transfer of custody were made in the course of safekeeping and used in court as evidence,
and the final disposition.
Ruiz Garcia, G.R. No.173480 February 25, 2009
c. Is strict compliance with the prescribed procedure essential?
Yes. Section 21, paragraph 1, Article II of R.A. No. 9165 and Section 21(a), Article II of the Implementing Rules
and Regulations (IRR) of RA No. 9165 give us the procedures that the apprehending team should observe in the handling
of seized illegal drugs in order to preserve their identity and integrity as evidence. As indicated by their mandatory terms,
strict compliance with the prescribed procedure is essential and the prosecution must show compliance in every case.
People vs. Alejandro, G.R. No. 176350, August 10, 2011
rendering it indistinct, not readily identifiable, and easily open to tampering, alteration or substitution either by accident or
otherwise. Hence, the rules on the measures to be observed during and after the seizure, during the custody and transfer
of the drugs for examination, and at all times up to their presentation in court. The Court recognized the following links
that must be established in the chain of custody in a buy-bust situation:
first, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending
officer;
second, the turnover of the illegal drug seized by the apprehending officer to the investigating officer;
third, the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination;
and
fourth, the turnover and submission of the marked illegal drug seized from the forensic chemist to the court. People
vs. Kamad, G.R. No. 174198, January 19, 2010
d. Would non-compliance with the prescribed procedural requirements render the seizure void?
No. Mere lapses in procedures need not invalidate a seizure if the integrity and evidentiary value of the seized items
can be shown to have been preserved.
As held in the case of People vs. Alejandro, G.R. No. 176350, August 10, 2011, the Supreme Court pronounced that
non-compliance with the prescribed procedural requirements does not necessarily render the seizure and custody of the
items void and invalid; the seizure may still be held to be valid, provided that (a) there is a justifiableground for the noncompliance, and (b) the integrity and evidentiary value of the seized items are shown to have been properly preserved.
Further, in another case, the Court stressed that the failure on the part of the police officers to take photographs
and make an inventory of the drugs seized from the appellant was not fatal because the prosecution was able to preserve
the integrity and evidentiary value of the said illegal drugs. People vs. Llamado, G.R. No. 185278 March 13, 2009
However, the failure to follow the procedure mandated under R.A. No. 9165 and its IRR must be adequately
explained. The justifiable ground for non-compliance must be proven as a fact. The court cannot presume what these
grounds are or that they even exist. People vs. De Guzman, G.R. No. 186498, March 26, 2010
e. Is the presumption of regular performance of duty conclusive in chain of custody cases?
No. this presumption is not conclusive and cannot, by itself, overcome the constitutional presumption of
innocence. The presumption of regularity, it must be emphasized, obtains only when there is no deviation from the
regular performance of duty.
Where the official act in question is irregular on its face, no presumption of regularity can arise. In the present
case, the procedural lapses by the apprehending team in the handling of the seized items from their failure to mark it
immediately upon confiscation, to their failure to inventory and photograph it in the presence of the accused, or his
representative or counsel, a representative from the media and the DOJ, and any elected public official, without offering
any justifiable ground effectively negated the presumption of regularity. People vs. Alejandro, G.R. No. 176350, August
10, 2011
sufficient?
No. The stipulation ref
for shabu is not sufficient. There is no certainty that what was submitted and subjected for chemical examination was the
specimen obtained from appellant. The fai
case. People vs. Balagat, G.R. No. 177163, April 24, 2000
g. Cite certain important doctrines under the Chain of Custody.
1. The chain of custody requirement is essential to ensure that doubts regarding the identity of the evidence are
removed through the monitoring and tracking of the movements of the seized drugs from the accused, to the police, to the
forensic chemist, and finally to the court. People v. Sitco, May 14, 2010
2. The duty to prove the guilt of an accused is reposed in the State. Law enforcers and public officers have the duty
to preserve the chain of custody over the seized drugs. This guarantee of the integrity of the evidence to be used against
an accused goes to the very heart of his fundamental rights. People vs .De Guzman, G.R. No. 186498, March 26, 2010
3. Given the foregoing perspective, it is fairly evident that the police operatives trifled with the procedures in the
custody of seized prohibited drugs in a buy-bust operation, as embodied in Sec. 21(1), Art. II of RA 9165, i.e., the
apprehending officer/team having initial custody and control of the drug shall:
immediately after seizure and confiscation, physically inventory and photograph the [drug] in the presence
of the accused or the person/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the Department of Justice (DOJ), and any
elected public official who shall be required to sign the copies of the inventory and be given a copy thereof.
In this case, no physical inventory was made and no photograph taken nor markings made on the seized articles at
the crime scene there is no reasonable assurance that no tampering or substitution occurred between the time the police
seized the black bag in P. Ocampo St. in Manila until its contents were tested in the laboratory of the PNP R-IV headquarters
in Canlubang, Laguna. In net effect, a heavy cloud of doubt hangs over the integrity and necessarily the evidentiary value
of the seized items. People vs. Cervantes, G.R. No. 181494, March 17, 2009
4. It cannot be over-emphasized that pertinent provisions of RA 9165 require that the seized illegal items shall,
after their inventory, be photographed in the presence of the drug dealer, representatives of media, the Department of
Justice, or any elected public official who participated in the operation. The records do not yield an indication that this
particular requirement has been complied with.To reiterate, the chain of custody requirement is necessary in order to
remove doubts as to the identity of the evidence, by monitoring and tracking custody of the seized drugs from the accused,
until they reach the court. A failure to comply with the aforequoted Sec. 21 (1) of RA 9165 implies a concomitant failure on
the part of the prosecution to establish the identity of the seized illegal items as part of the corpus delicti. People v. Sitco,
May 14, 2010
5. As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be
preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It
would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered in
evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received,
wh
condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken
to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to
have possession of the same. Indeed, it is from the testimony of every witness who handled the evidence that a reliable
assurance can be derived that the evidence presented in court and that seized from the accused are one and the same.
People v. De Guzman, March 26, 2010
6. The chain of custody requirement is essential to ensure that doubts regarding the identity of the evidence are
removed through the monitoring and tracking of the movements of the seized drugs from the accused, to the police, to the
forensic chemist, and finally to the court. People v. Sitco, May 14, 2010
7. The duty to prove the guilt of an accused is reposed in the State. Law enforcers and public officers have the duty
to preserve the chain of custody over the seized drugs. This guarantee of the integrity of the evidence to be used against
an accused goes to the very heart of his fundamental rights. People vs .De Guzman, G.R. No. 186498, March 26, 2010
2.01 IS PLEA BARGAINING ALLLOWED UNDER THIS LAW? (SEC. 23)
Illustrative case
BAR Q. [2005] Obie Juan is suspected to have in his possession an unspecified amount of methamphetamine hydrochloride
100 grams of the said dangerous drug in his possession. He was subjected to a drug test and was found positive for the
use of marijuana, another dangerous drug. He was subsequently charged with two crimes: Violation of Section 11, Article
So as not to be
sentenced to death, Obie Juan offers to plead guilty to a lesser offense. Can he do so? Why?
Suggested Answer: No, Obie Juan cannot plead guilty to a lesser offense since this is explicitly prohibited under
Section 23 of R.A. 9165. The law provides that any person charged under any provision of this Act regardless of the
imposable penalty shall not be allowed to avail of the provisions on plea bargaining.
Illustrative case
BAR Q. [2005] Candido stabbed an innocent bystander who accidentally bumped him. The innocent bystander died as a
result of the stabbing. Candido was arrested and was tested to be positive for the use of shabu at the time he committed
the stabbing.
What should be the proper charge against Candido?
Suggested Answer: Candido is guilty of homicide only. The act of stabbing was not consciously adopted but only
accidental and therefore, negates treachery. However, since the crime was committed when he was under the influence
of dangerous drugs, such act becomes a qualifying circumstance pursuant to Section 25, R.A. 9165.
ADDENDUM:
1. The identity of the prohibited drug must be established.
Proof of the chain of custody from the time of seizure to the time such evidence is presented in court ensures the
absence of doubt concerning the integrity of such vital evidence. This requires as a minimum that the police mark the seized
item (1) in the presence of the apprehended violator and (2) immediately upon confiscation. (People vs. Palomares, G.R.
No. 200915, February 12, 2014)
2. Essential elements of illegal sale.
In this case, the prosecution failed to prove that each and every element that constitutes an illegal sale of dangerous
drug was present to convict the accused. Upon evaluation of the testimonies of PO1 Familara and PO1 Mendoza, it is
apparent that there is an inconsistency on the identity and number of plastic sachets bought from the accused. In his
statement, PO1 Familara recalled that upon arrival at the place of arrest, PO1 Mendoza told him that he was able to buy
one plastic sachet of shabu from Guinto. On the other hand, PO1 Mendoza recalled that he was able to buy two plastic
sachets instead of one. The pointed inconsistency is not a minor one that can be brushed aside as the discrepancy taints
the very corpus delicti of the crime of illegal sale.
doubt the identification of the dangerous drug that was presented in court. (People vs. Guinto, G.R. No. 198314, September
24, 2014, Perez, J.)
In order to overcome the presumption of regularity, there must be clear and convincing evidence that the police
officers did not properly perform their duties or that they were prompted with ill motive, none of which exists in this case.
(People of the Philippines vs. Mercidita Resurreccion y Torres, G.R. No. 188310 June 13, 2013, Leonardo-De Castro, J.)
The Court has held that prior surveillance is not necessary to render a buy-bust operation legitimate, especially
when the buy-bust team is accompanied at the target area by the informant. Similarly, the presentation of an informant as
a witness is not regarded as indispensable to the success in prosecuting drug-related cases. In this case, the informant had
actively participated in the buy-bust operation and her testimony, if presented, would merely corroborate the testimonies
of the members of the buy-bust team. (People vs. Monceda, G.R. No. 176269, November 13, 2013, Brion, J.)
to truly
ensure that they are the same items that enter the chain and are eventually the ones offered in evidence should be done
(1) in the presence of the apprehended violator (2) immediately upon confiscation. (People vs. Somoza, 701 SCRA 525, G.R.
No. 197250, July 17, 2013, Leonardo-De Castro, J.)
4. Chain of custody and objective test.
To establish the chain of custody in a buy-bust operation, the prosecution must establish the following links, namely:
First, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer;
Second, the turnover of the illegal drug seized by the apprehending officer to the investigating officer; Third, the turnover
by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and Fourth, the turnover
and submission of the marked illegal drug seized by the forensic chemist to the court.
the duty of the prosecution to present a complete picture detailing the buy-bust operation
from the initial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the
consideration, until the consummation of the sale by the delivery of the illegal subject of sale. (People vs. Clara, 702 SCRA
273, G.R. No. 195528, July 24, 2013, Perez, J.)
6. Effect of Gaps or Lapses in the Chain of Custody of Illegal Drugs.
The discussion in People v. Lim is apropos: x xx [A]ny apprehending team having initial custody and control of said
drugs and/or paraphernalia, should immediately after seizure and confiscation, have the same physically inventoried and
photographed in the presence of the accused, if there be any, and or his representative, who shall be required to sign the
copies of the inventory and be given a copy thereof. The failure of the agents to comply with such a requirement raises a
doubt whether what was submitted for laboratory examination and presented in court was actually recovered from the
appellants. It negates the presumption that official duties have been regularly performed by the PAOC-TF agents. (People
vs. Balibay, G.R. No. 202701, September 10, 2014, Perez, J.)
First, it is not clear from the evidence that the marking, which was done in the police station, was made in the
presence of the accused or his representative. Although the Court has previously rule
confiscation of the prohibited items contemplates even that which was done at the nearest police station or office of the
apprehending team, the same must always be done in the presence of the accused or his representative.
Second, the prosecution failed to duly accomplish the Certificate of Inventory and to take photos of the seized items
pursuant to the above-stated provision.
Third, the Court finds conflicting testimony and glaring inconsistencies that would cast doubt on the integrity of the
handling of the seized drugs. (People of the Philippines vs. Freddy Salonga y Afiado, G. R. No. 194948, September 2, 2013,
Sereno, CJ.)
The following are the links that must be established in the chain of custody in a buy-bust situation: First, the seizure
and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; Second, the turnover
of the illegal drug seized by the apprehending officer to the investigating officer; Third, the turnover by the investigating
officer of the illegal drug to the forensic chemist for laboratory examination; and Fourth, the turnover and submission of
the marked illegal drug seized from the forensic chemist to the court.
The first crucial link in the chain of custody starts with the seizure from Enriquez of the dangerous drugs and its
subsequent marking. Nowhere in the documentary and testimonial evidence of the prosecution can it be found when these
items were actually marked and if they were marked in the presence of Enriquez or at least his representative.
The second link in the chain of custody is the turnover of the illegal drug by the apprehending officer to the
investigating officer. However, they both failed to identify the person to whom they turned over the seized items. There is
no evidence to show that he was the person who received the seized items from the apprehending officers.
As for the third and the last links, although records show that Chief of Police Erese signed the request for laboratory
examination, he was not presented in court to testify as such. The testimony of Chief of Police Erese is indispensable because
he could have provided the critical link between the testimony of SPO2 David, and the tenor of the testimony of P/Insp.
Dizon, which the parties have stipulated on. Moreover, no one testified as to how the confiscated items were handled and
cared for after the laboratory examination. (People of the Philippines vs. Arturo Enriquez De los Reyes, G.R. No. 197550,
September 25,2013, Leonardo-De Castro, J.)
In the case at bar, instead of immediately marking the subject drug upon its confiscation, PO2 Tuzon marked it with
only upon arrival at the police station. While the failure of arresting officers to mark the seized items at
the place of arrest does not, by itself, impair the integrity of the chain of custody and render the confiscated items
inadmissible in evidence, such circumstance, when taken in light of the several other lapses in the chain of custody that
attend the present case, forms part of a gross, systematic, or deliberate disregard of the safeguards that are drawn by the
law, sufficient to create reasonable doubt as to the culpability of the accused.
6. Failure to immediately mark the seized drugs.
To be able to create a first link in the chain of custody, then, what is required is that the marking be made in the
presence of the accused and upon
People v. Gum-Oyen, testimony that included the marking of the seized items at the police station and in the presence of
the accused was sufficient in showing compliance with the rules on chain of custody. Marking upon immediate confiscation
contemplates even marking at the nearest police station or office of the apprehending team. (People of the Philippines vs.
Giovanni Ocfemia y Chavez, G.R. No. 185383, September 25, 2013 , Leonardo-De Castro.)
7. Crime of illegal sale of dangerous drugs necessarily includes the crime of illegal possession.
Well-settled in jurisprudence that the crime of illegal sale of dangerous drugs necessarily includes the crime of
illegal possession of dangerous drugs.
as it is
done in the presence of the accused and that what is of utmost importance is the preservation of its integrity and evidentiary
value. (People of the Philippines vs. Michael Maongco y Yumonda, G.R. No. 196966, October 23,2013, Leonardo-De Castro,
J.)
8. Failure to make an inventory and to take photographs of the subject drug.
Contrary to the argument of the defense, even the buyphotographs of the subject drug did not adversely affect the prose
evidentiary value of the seized items which would be utilized in the determination of the guilt or innocence of the accused
are preserved. (People vs. Loks, G.R. No. 203433, November 27, 2013, Reyes, J.)
grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending
officer/team, sha
preservation of the integrity and evidentiary value of the seized items which must be proven to establish the corpus delicti.
(People vs. Cerdon, G.R. No. 201111, August 6, 2014, Perez, J.)
Coordination with the PDEA is not an indispensable element of a proper buy-bust operation. A buy-bust operation
is not invalidated by mere non-coordination with the PDEA. (People vs. Montevirgen, G.R. No. 189840 December 11, 2013,
Del Castillo, J.)
9. What does marking upon immediate confiscation mean?
reasonably cover marking done at the nearest police station or office of the apprehending team, especially when the place
of seizure is volatile and could draw unpredictable reactions from its surroundings. (People vs. Bautista, G.R. No. 198113
December 11, 2013, Abad, J.)
10. Testimony of poseur-buyer not indispensable.
The testimony of the poseur-buyer was not therefore indispensable or necessary; it would have been cumulative
merely, or corroborative at best." His testimony can therefore be dispensed with since the illicit transaction was actually
witnessed and adequately proved by the prosecution witnesses. (People vs. Marcelo, G.R. No. 181541, August 18, 2014, Del
Castillo, J.)
11. Failure to present the buy-bust money.
Failure to present the buyle in drug cases
since it is merely corroborative evidence, and the absence thereof does not create a hiatus in the evidence for the
prosecution provided the sale of dangerous drugs is adequately proven and the drug subject of the transaction is presented
before the court. (People vs. Bayan, G.R. No. 200987, August 20, 2014, Perez, J.)
12. Actual and constructive possession distinguished.
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. (People vs. De La Trinidad,G.R. No.
199898, September 03, 2014,Perez, J.)
13. Effect of failure to offer in evidence the Certificate of Inventory and the formal request for examination of the
confiscated substance.
It is true that the prosecution did not formally offer in evidence the Certificate of Inventory and the formal request
for examination of the confiscated substance. Be that as it may, the Court has previously held that even if an exhibit is not
ny
duly recorded and, second, it has itself been incorporated in the records of the case. PO3 Velasquez categorically testified
that an inventory of the seized drugs was performed, a corresponding certificate was prepared, and a formal request for
examination was made. He further narrated that together with the formal request, he submitted and delivered the
confiscated drugs to the crime laboratory. On the basis of the said formal request, P/Insp. Roderos examined the specimen
documents. Considering the said testimonies and the fact that the documents were incorporated in the records of the case,
they are therefore admissible against appellant. (People vs. Baturi, G.R. No. 189812, September 01, 2014, Del Castillo, J.)
14. Presentation of confidential informant.
The non-presentation of the confidential informant as a witness does not ordinarily weaken the State's case against
the accused. However, if the arresting lawmen arrested the accused based on the pre-arranged signal from the confidential
informant who acted as the poseur buyer, his non-presentation must be credibly explained and the transaction established
by other ways in order to satisfy the quantum of proof beyond reasonable doubt because the arresting lawmen did not
themselves participate in the buy-bust transaction with the accused.
In People vs. Lopez (214 SCRA 323), it was held that there was no need for the prosecution to present the
confidential informer as the poseur-buyer himself positively identified the accused as the one who sold to him one deck of
methamphetamine hydrochloride or "shabu." The trial court then properly relied on the testimonies of the police officers
despite the decision of the prosecution not to present the informer. (People vs. Andaya, G.R. No. 183700, October 13, 2014,
Bersamin, J.)
Records have established that both the arrest and the search were made without a warrant. While the accused
has already waived his right to contest the legality of his arrest, he is not deemed to have equally waived his right to contest
the legality of the search. (Danilo Villanueva y Alcaraz vs. People, G.R. No. 199042, November 17, 2014, Sereno, CJ. )
16. Plain view doctrine and its requisites.
The plain view doctrine applies when the following requisites concur: (1) the law enforcement officer in search of
the evidence has a prior justification for an intrusion or is in a position from which he can view a particular area; (2) the
discovery of the evidence in a plain view is inadvertent; and (3) it is immediately apparent to the officer that the item he
observes may be evidence of a crime, contraband or otherwise subject to seizure. (Rizaldy Sanchez y Cajili vs. People, G.R.
No. 204589, November 19, 2014, Mendoza, J.)
17. With reference to the importation and possession of blasting caps, it seems plain beyond argument that the latter is
inherent in the former so as to make them juridically identical. There can hardly be importation without possession. When
one brings something or causes something to be brought into the country, he necessarily has the possession of it. The
possession ensuing from the importation may not be actual, but legal, or constructive, but whatever its character, the
importer, in our opinion, is a possessor in the juristic sense and he is liable to criminal prosecution.
Applying the aforequoted ruling, this Court finds that while appellants cannot be held liable for the offense of illegal
importation charged in the information, their criminal liability for illegal possession, if proven beyond reasonable doubt,
may nevertheless be sustained. As previously mentioned, the crime of importation of regulated drugs is committed by
importing or bringing any regulated drug into the Philippines without being authorized by law. Indeed, when one brings
something or causes something to be brought into the country, he necessarily has possession of the same. Necessarily,
therefore, importation can never be proven without first establishing possession, affirming the fact that possession is a
condition sine qua non for it would rather be unjust to convict one of illegal importation of regulated drugs when he is not
proven to be in possession thereof.
In a similar manner, considering that illegal possession is likewise an element of and is necessarily included in illegal
importation of dangerous drugs, convicting appellants of the former, if duly established beyond reasonable doubt, does not
amount to a violation of their right to be informed of the nature and cause of accusation against them. Indeed, where an
accused is charged with a specific crime, he is duly informed not only of such specific crime but also of lesser crimes or
offenses included therein.
The elements of illegal possession of regulated drugs are as follows: (a) the accused is in possession of an item or
object which is identified to be a regulated drug; (b) such possession is not authorized by law; and (c) the accused freely
and consciously possessed the regulated drug. The evidence on record clearly established that appellants were in
possession of the bags containing the regulated drugs without the requisite authority. As mentioned previously, on the
ficers were conducting a surveillance of the coast of Ambil Island in the
looking boat was within the vicinity. Not long after, they spotted two (2) boats anchored side by side, the persons on which
were transferring cargo from one to the other. Interestingly, as they moved closer to the area, one of the boats hurriedly
sped away. Upon reaching the other boat, the police officers found the appellants with several transparent plastic bags
containing what appeared to be shabu which were plainly exposed to the view of the officers. Clearly, appellants were
found to be in possession of the subject regulated drugs. (People vs. Chi Chan Liu and Hui Lao Chung, G.R. No. 189272,
January 21, 2015, Peralta, J.)
18. Decoy Solicitation.
The chain of custody is not established solely by compliance with the prescribed physical inventory and
photographing of the seized drugs in the presence of the enumerated persons. The Implementing Rules and Regulations of
R. A. No. 9165 on the handling and disposition of seized dangerous drugs states: x x x Provided, further, that non-compliance
with these requirements under justifiable grounds, as long as the integrity and evidentiary value of the seized items are
properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over
said items. (People vs. Rosauro, G.R. No. 209588, February 18, 2015, Perez, J.)
19. Wha
To establish the guilt of an accused for the illegal delivery of a
the accused passed on possession of a dangerous drug to another, personally or otherwise, and by any means; (2) such
r without consideration.
The presentation of the marked money is immaterial in this case since the crime of illegal delivery of a dangerous
drug can be committed even without consideration or payment. (People vs. Reyes, G.R. No. 194606, February 18, 2015, Del
Castillo, J.)
20. Chain of Custody.
In the prosecution of illegal possession of dangerous drugs, the dangerous drug itself constitutes the very corpus
delicti of the offense and, in sustaining a conviction therefor, the identity and integrity of the corpus delicti must definitely
12. Actual and constructive possession distinguished.
In both cases of illegal sale and illegal possession of dangerous drugs, the prosecution must show the chain of
custody over the dangerous drug in order to establish the corpus delicti, which is the dangerous drug itself. The chain of
custody rule comes into play as a mode of authenticating the seized illegal drug as evidence.
A substantial gap in the chain of custody renders the identity and integrity of the corpus delicti dubious. (Lopez vs.
People,G.R. No. 188653, January 29, 2014,Perez, J.)
First link of the chain, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the
apprehending officer.
officer.
Second link of the chain, the turnover of the illegal drug seized by the apprehending officer to the investigating
Third link of the chain, the turnover by the investigating officer of the illegal drug to the forensic chemist for
laboratory examination.
Fourth link of the chain, the turnover and submission of the marked illegal drug seized by the forensic chemist to
the court. (People vs. Dahil and Castro, G.R. No. 212196, January 12, 2015, Mendoza, J.)
the so-called Miranda rights render inadmissible only the
his alleged uncounseled confession or admission but on the testimony of the prosecution witness. (People vs. Bio, G.R. No.
195850, February 16, 2015, Del Castillo, J.)
CHAPTER V. ANTI-VIOLENCE AGAINST WOMEN AND THEIR
CHILDREN ACT OF 2004
Republic Act No. 9262
[BAR 2011, 2010]
___________________________________________________
against women and their children for anti vawc to apply, violence must be against their children, if not their children
another special law
PEOPLE VS. CABALQUINTO
G.R. No. 167693, September 19, 2006
RULING: Taking all these opinions into account and in view of recent enactments which unequivocally express the intention
to maintain the confidentiality of information in cases involving violence against women and their children, in this case and
henceforth, the Court shall withhold the real name of the victim-survivor and shall use fictitious initials instead to represent
her. Likewise, the personal circumstances of the victims-survivors or any other information tending to establish or
compromise their identities, as well those of their immediate family or household members, shall not be disclosed.
1.01 DEFINE VIOLENCE AGAINST WOMEN AND THEIR CHILDREN.
.
It refers to an intentional act committed by a person who, knowingly and without lawful justification follows the
woman or her child or places the woman or her child under surveillance directly or indirectly or a combination thereof.
1.08 EXPLAIN THE CONCEPT OF
.
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.
1.09 EXPLAIN THE CONCEPT OF
It refers to a single sexual act which may or may not result in the bearing of a common child.
FROM
Sexual relations refer to a single sexual act which may or may not result in the bearing of a common child.
x x refers to any act or a series of acts committed
by any person against a woman x x
e
taking place between those involved. Rustan Ang Y Pascua vs. Sagud, G.R. No. 182835, April 20, 2010
1.11 WHAT ARE THE ELEMENTS OF THE CRIME OF VIOLENCE AGAINST WOMEN?
The elements of the crime of violence against women through harassment are:
1. The offender has or had a sexual or dating relationship with the offended woman;
2. The offender, by himself or through another, commits an act or series of acts of harassment against the woman; and
3. The harassment alarms or causes substantial emotional or psychological distress to her. Rustan Ang Y Pascua vs.
Sagud, G.R. No. 182835, April 20, 2010
1.12 DOES A SINGLE ACT OF HARASSMENT ENOUGH TO CONVICT AN OFFENDER?
that a single act of harassment, which translates into violence, would be enough. The object of the law is to protect women
and children. Punishing only violence that is repeatedly committed would license isolated ones. Rustan Ang Y Pascua vs.
Sagud, G.R. No. 182835, April 20, 2010
1.13 MAY A TEMPORARY PROTECTION ORDER (TPO) BE ISSUED IN FAVOR OF A MAN AGAINST HIS WIFE?
A TPO cannot be issued in favor of a man against his wife under R.A. No. 9292, known as the Anti-Violence Against
Women and Their Children Act of 2004.I
In one case, the judge was found guilty of gross ignorance of the law for issuing a Temporary Protection Order (TPO) in
favor of a male petitioner. Indeed, as a family court judge, the judge is expected to know the correct implementation of
R.A. No. 9292. See Sylvia Santo vs. Judge Arcaya-Chua, A.M. No. Rtj-07-2093, April 23, 2010
Dabalos y San Diego vs. Paras Quiambao, et. al.
G.R. No. 193960, January 7, 2013
ISSUE: Petitioner insists that the act which resulted in physical injuries to private respondent is not covered by RA 9262 because its
proximate cause was not their dating relationship. Instead, he claims that the offense committed was only slight physical injuries under
the Revised Penal Code which falls under the jurisdiction of the Municipal Trial Court.
RULING: The Court is not persuaded quoting Sec. 3(a) of RA 9262. The law is broad in scope but specifies two limiting qualifications for
any act or series of acts to be considered as a crime of violence against women through physical harm, namely: 1) it is committed against
with whom he has or had sexual or dating relationship or
with whom he has a common child; and 2) it results in or is likely to result in physical harm or suffering.
Notably, while it is required that the offender has or had a sexual or dating relationship with the offended woman, for RA 9262
to be applicable, it is not indispensable that the act of violence be a consequence of such relationship. Nowhere in the law can such
limitation be inferred.
Hence, applying the rule on statutory construction that when the law does not distinguish, neither should the courts, then,
clearly, the punishable acts refer to all acts of violence against women with whom the offender has or had a sexual or dating relationship.
As correctly ruled by the RTC, it is immaterial whether the relationship had ceased for as long as there is sufficient evidence
showing the past or present existence of such relationship between the offender and the victim when the physical harm was committed.
Dabalos Y San Diego vs. Judge Paras Quiambao, et al., G.R. No. 193960, January 7, 2013
People vs. Genosa
G.R. No. 135981, January 15, 2004
RULING:
psychological behavior by a man in order to coerce her to do something he wants her to do without concern for her
rights. Battered women include wives or women in any form of intimate relationship with men. Furthermore, in order to
be classified as a battered woman, the couple must go through the battering cycle at least twice. Any woman may find
herself in an abusive relationship with a man once. If it occurs a second time, and she remains in the situation, she is defined
Battered women exhibit common personality traits, such as low self-esteem, traditional beliefs about the home,
the family and the female sex role; emotional dependence upon the dominant male; the tendency to accept responsibility
More graphically, the battered woman syndrome is characterized by the sothree phases: (1) the tension-building phase; (2) the acute battering incident; and (3) the tranquil, loving (or, at least,
nonviolent) phase.
During the tension-building phase, minor battering occurs -- it could be verbal or slight physical abuse or another
form of hostile behavior. The woman usually tries to pacify the batterer through a show of kind, nurturing behavior; or by
simply staying out of his way. What actually happens is that she allows herself to be abused in ways that, to her, are
comparatively minor. All she wants is to prevent the escalation of the violence exhibited by the batterer. This wish,
however, proves to be doubleright to abuse her in the first place.
The acute battering incident is said to be characterized by brutality, destructiveness and, sometimes, death. The
battered woman deems this incident as unpredictable, yet also inevitable. During this phase, she has no control; only the
batterer may put an end to the violence. Its nature can be as unpredictable as the time of its explosion, and so are his
reasons for ending it. The battered woman usually realizes that she cannot reason with him, and that resistance would only
exacerbate her condition.
At this stage, she has a sense of detachment from the attack and the terrible pain, although she may later clearly
remember every detail. Her apparent passivity in the face of acute violence may be rationalized thus: the batterer is almost
always much stronger physically, and she knows from her past painful experience that it is futile to fight back. Acute
battering incidents are often very savage and out of control, such that innocent bystanders or intervenors are likely to get
hurt.
The final phase of the cycle of violence begins when the acute battering incident ends. During this tranquil period,
the couple experience profound relief. On the one hand, the batterer may show a tender and nurturing behavior towards
his partner. He knows that he has been viciously cruel and tries to make up for it, begging for her forgiveness and promising
never to beat her again. On the other hand, the battered woman also tries to convince herself that the battery will never
whom she loves.
A battered woman usually believes that she is the sole anchor of the emotional stability of the batterer. Sensing
his isolation and despair, she feels responsible for his well-being. The truth, though, is that the chances of his reforming, or
seeking or receiving professional help, are very slim, especially if she remains with him. Generally, only after she leaves him
does he seek professional help as a way of getting her back. Yet, it is in this phase of remorseful reconciliation that she is
most thoroughly tormented psychologically.
1. BAR Q. [2011] A battered woman claiming self-defense under the Anti-Violence against Women and Children must
prove that the final acute battering episode was preceded by
A. 3 battering episodes.
B. 4 battering episodes.
C. 5 battering episodes.
2. BAR Q. [2010] Jack and Jill have been married for seven years. One night, Jack came home drunk. Finding no food on the
table, Jack started hitting Jill only to apologize the following day. A week later, the same episode occurred Jack came
home drunk and started hitting Jill. Fearing for her life, Jill left and stayed with her sister. To woo Jill back, Jack sent her
floral arrangements of spotted lilies and confectioneries. Two days later, Jill returned home and decided to give Jack
another chance. After several days, however, Jack again came home drunk. The following day, he was found dead. Jill was
Suggested Answer: It refers to a scientifically defined pattern of psychological and behavioral symptoms found in
women living in battering relationships as a result of cumulative abuse.
Suggested Answer:
tranquil and loving phase.
The three phases are the following: a) tension-building phase b) acute battering incident c)
C. Would the defense prosper despite the absence of any of the elements for justifying circumstances of self-defense under
the Revised Penal Code?
Suggested Answer:Yes, R.A. 9262 expressly states that victim-survivors who are found by the courts to be suffering
from battered woman syndrome 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.
1.20 DIFFERENTIATE SECTION 3 (A) FROM SECTION 5 OF R.A. 9262.
Section 3 (a) of R.A. 9262 provides that violence against women includes an act or acts of a person against a woman
with whom he has or had a sexual or dating relationship while Section 5 identifies the act or acts that constitute violence
against women and these include any form of harassment that causes substantial emotional or psychological distress to a
woman.
Sharica Mari L. Go-Tan vs. Spouses Tan
G.R. No. 168852: September 30, 2008
FACTS: Sharica Go-Tan, married to Steven Tan, filed a Petition with Prayer for the Issuance of a Temporary Protective Order
against Steven and her parents-in-law, Spouses Perfecto C. Tan and Juanita L. Tan. She alleged that Steven, in conspiracy
with her parents-in-law, was causing verbal, psychological and economic abuses upon her.
-in-law may be included in the petition for the issuance of a protection order.
RULING: While the said provision provides that the offender be related or connected to the victim by marriage, former
marriage, or a sexual or dating relationship, it does not preclude the application of the principle of conspiracy under the
RPC.
In Ladonga v. People, the Court applied suppletorily the principle of conspiracy under Article 8 of the RPC to B.P.
Blg. 22 in the absence of a contrary provision therein. With more reason, therefore, the principle of conspiracy under Article
8 of the RPC may be applied suppletorily to R.A. No. 9262 because of the express provision of Section 47 that the RPC shall
be supplementary to said law. Thus, general provisions of the RPC, which by their nature, are necessarily applicable, may
be applied suppletorily. Thus, the principle of conspiracy may be applied to R.A. No. 9262. For once conspiracy or action in
concert to achieve a criminal design is shown, the act of one is the act of all the conspirators, and the precise extent or
modality of participation of each of them becomes secondary, since all the conspirators are principals.
It must be further noted that Section 5 of R.A. No. 9262 expressly recognizes that the acts of violence against
women and their children may be committed by an offender through another,
thus: SEC. 5. Acts of Violence Against Women and Their Children. - The crime of violence against women and their
children is committed through any of the following acts: x x x (h) Engaging in purposeful, knowing, or reckless conduct,
personally or through another, that alarms or causes substantial emotional or psychological distress to the woman or her
child. This shall include, but not be limited to, the following acts: (1) Stalking or following the woman or her child in public
or private places; (2) Peering in the window or lingering outside the residence of the woman or her child; (3) Entering or
remaining in the dwelling or on the property of the woman or her child against her/his will; (4) Destroying the property and
personal belongings or inflicting harm to animals or pets of the woman or her child; and (5) Engaging in any form of
harassment or violence; x x x. (Emphasis supplied)
II. PROTECTION ORDERS
3.00 DEFINE PROTECTION ORDER UNDER THIS ACT.
A protection order is an order issued under this act for the purpose of preventing further acts of violence against a woman or her
child specified in Section 5 of this Act and granting other necessary relief.
3.01 WHAT IS THE IMPORTANCE OF THE PROTECTION ORDER?
The relief granted under a protection order serve 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. The provisions of the protection order shall be enforced by law enforcement agencies.
3.02 ENUMERATE THE PROTECTION ORDERS THAT MAY BE ISSUED UNDER THIS LAW.
The protection orders that may be issued are the barangay protection order (BPO), temporary protection order (TPO) and
permanent protection order (PPO).
A] BARANGAY PROTECTION ORDER
4.00 DISCUSS BARANGAY PROTECTION ORDERS (BPOs)
Barangay Protection Orders (BPOs) refer to the protection order issued by the Punong Barangay ordering the perpetrator to desist
5.00 DISCUSS TEMPORARY PROTECTION ORDERS (TPOs)
Temporary Protection Orders (TPOs) refer to the protection order issued by the court on the date of filing of the application after
ex parte determination that such order should be issued. A court may grant in a TPO any, some or all of the reliefs mentioned in this
Act and shall be effective for thirty (30) days.
5.01 DISCUSS PERMANENT PROTECTION ORDERS (PPOs)
Permanent Protection Order (PPO) refers to protection order issued by the court after notice and hearing.
5.02 WHAT ARE THE PROHIBITED ACTS IN THE APPLICATION FOR A PROTECTION ORDER?
shall not order, direct, force or in
any way unduly influence the applicant for a protection order to compromise or abandon any of the reliefs sought in the application
for protection under this Act. Section 7 of the Family Courts Act of 1997 and Sections 410, 411, 412 and 413 of the Local Government
Code of 1991 shall not apply in proceedings where relief is sought under this Act.
CHAPTER VI BOUNCING CHECKS LAW
BATAS PAMBANSA BLG. 22
An Act Penalizing the Making Or Drawing And Issuance Of A Check Without Sufficient Funds Or Credit And For Other
Purposes.
________________________________________________
IN GENERAL
1.00 WHAT IS A CHECK?
In Mitra vs. People, July 05, 2010, the Supreme Court had the occasion to explain what a check is. It held that a check is
a negotiable instrument that serves as a substitute for money and as a convenient form of payment in financial transactions
and obligations.
The use of checks as payment allows commercial and banking transactions to proceed without the actual handling of
money, thus, doing away with the need to physically count bills and coins whenever payment is made.
More particularly, a check is a bill of exchange drawn on a bank payable on demand. (Negotiable Instruments Law,
Section 185).
1.01 EXPLAIN A
CHECK?
than the funds available in a particular account.
1.02 EXPLAIN A
CHECK?
DAUD means drawn against uncollected deposit. It is a banking phrase connoting a check with insufficient funds.
1.03 WHAT IS AN INDORSED CHECK?
It is one which the present holder acquires possession of the check from the payee or another holder after the
payee had indorsed it.
No. As enunciated in the case of New Pacific Timber and Supply Company, Inc. vs. Seneres, 101 SCRA 686, by its
peculiar character and general use in the commercial world, it is as good as the money it represents and is therefore deemed
as cash.
1.05 WHAT IS AN ACCOMODATION CHECK?
1.06 WHAT IS A GUARANTEE CHECK?
It may either be an accommodation or any other kind of check drawn and delivered to guarantee the performance
of a principal obligation.
1.07 DOES BP.22 COVER ACCOMODATION OR GUARANTEE CHECK?
Yes. It is covered by BP. 22 because the issuance of the check to cover the account and its subsequent dishonor are
the only facts required for prosecution under the law. Creeg vs. CA, 233 SCRA 301. In People vs. Que, G.R. 73217-18,
September 21, 1987, it was held that BP 22 does not make any distinction as to whether the bad check is issued in payment
of an obligation or to guarantee an obligation.
1.08 WHAT IS A CROSSED CHECK?
The reason for the issuance of a check is to ensure that the check is encashed only by the rightful payee. In usual
practice, crossing of a check is done by placing two parallel lines diagonally on the left portion of the check.
A cross check has the following effects:
a) that the check may not be encashed but only deposited in the bank;
b) that the check may be negotiated only once to one who has an account with a bank;
c) that the act of crossing the check serves as a warning to the holder that the check has been issued for a definite
purpose so that he must inquire if he has secured the check pursuant to that purpose. State Investment House vs.
IAC, 175 SCRA 316
1.09 DOES BP.22 COVER CROSSED CHECK?
Yes, since it is a negotiable instrument, it falls within the coverage of BP. 22.
1.10 WHAT DOES
MEAN?
The word "credit" as used herein shall be construed to mean an arrangement or understanding with the bank for the
payment of such check. (Sec .4)
1.11 WHICH COURT HAS JURISDICTION OVER VIOLATION OF BP. 22?
The MTC has exclusive original jurisdiction in the prosecution of BP. 22 cases regardless of amount. A.M. No. 0011-01-SC, March 25, 2003
1.12 CITE THE REASON BEHIND THE ENACTMENT OF BP 22.
In the case of Mitra vs. People, July 05, 2010, the Supreme Court ruled that BP. 22 considers the mere act of issuing an
unfunded check as an offense not only against property but also against public order to stem the harm caused by these
bouncing checks to the community.
The purpose of BP. 22 in declaring the mere issuance of a bouncing check as malum prohibitum is to punish the offender
in order to deter him and others from committing the offense, to isolate him from society, to reform and rehabilitate him,
and to maintain social order.
1.13 IS THE PRINCIPLE OF CONSPIRACY UNDER THE REVISED PENAL CODE APPLICABLE IN BP.22 WHICH IS A SPECIAL LAW?
Yes. This issue was clarified by the Supreme Court in the case of Ladonga vs. People, 451 SCRA 673 when it
expressly ruled that In the absence of contrary provision in Batas Pambansa Blg. 22, the general provisions of the Revised
Penal Code which, by their nature, are necessarily applicable, may be applied suppletorily, including the provisions on
conspiracy.
A. WAYS BY WHICH VIOLATION OF BP. 22 ARE COMMITTED.
2.00 WHAT IS THE GRAVAMEN OF BP. 22?
The gravamen of the offense punished by Batas Pambansa (B.P.) Blg. 22 is that act of making or issuing a worthless
check or a check that is dishonored upon its presentation for payment It is not the nonpayment of the obligation which
the law punishes. The mere act of issuing a worthless check whether as a deposit, as a guarantee or even as evidence of
pre-existing debt is malum prohibitum.
1. The law punishes the act not as an offense against property, but an offense against public order. Thus, the mere
act of issuing a worthless check whether as a deposit, as a guarantee or even as evidence of pre-existing debt
is malum prohibitum. Ambito vs. People, 579 SCRA 68, February 13, 2009
2. The act effectively declares the offense to be one of malum prohibitum. The only valid query then is whether the
law has been breached, i.e., by the mere act of issuing a bad check, without so much regard as to the criminal intent
of the issuer. Jose vs. Suarez, 556 SCRA 772, June 30, 2008
3. What the law punishes is the issuance and/or drawing of a check and upon presentment for deposit or encashment,
it was dishonored due to insufficient funds [or] account closed. Jose v. Suarez, 556 SCRA 772, June 30, 2008
BATAS PAMBANSA BLG. 22
AN ACT PENALIZING THE MAKING OR DRAWING AND ISSUANCE OF A CHECK WITHOUT SUFFICIENT
FUNDS OR CREDIT AND FOR OTHER PURPOSES.
Section 1. Checks without sufficient funds. 1ST WAY Any person who makes or draws and issues any check to
apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the
drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by
the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the
drawer, without any valid reason, ordered the bank to stop payment, shall be punished by imprisonment of not less
than thirty days but not more than one (1) year or by a fine of not less than but not more than double the amount of
the check which fine shall in no case exceed Two Hundred Thousand Pesos, or both such fine and imprisonment at
the discretion of the court.
The same penalty shall be imposed upon any person who, having sufficient funds in or credit with the drawee bank
when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the
full amount of the check if presented within a period of ninety (90) days from the date appearing thereon, for which
reason it is dishonored by the drawee bank.
Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the check
in behalf of such drawer shall be liable under this Act.
2.01 GIVE THE ELEMENTS OF THE FIRST PARAGRAPH OF SECTION 1 OF BP.22.
Liability for violation of B.P. 22 attaches when the prosecution establishes proof beyond reasonable doubt of the
existence of the following elements:
first way
1. The accused makes, draws or issues any check to apply to account or for value;
2. The accused knows at the time of the issuance that he or she does not have sufficient funds in, or credit with, the
drawee bank for the payment of the check in full upon its presentment .
This element is emphasized in the case of Vergara vs. People, 450 SCRA 495, where the Supreme Court held:
be liable for violation of Batas Pambansa Blg. 22, it is not enough that the check was subsequently dishonored for
insufficiency of funds. It must be shown also beyond reasonable doubt that petitioner knew of the insufficiency of funds
3. The check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or it would have been
dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment.
Azarcon vs. People, June 29, 2010
2.02 WHAT DOES THE TERM
MEAN?
Section 191 of the Negotiable Instruments Law defines "issue" as the first delivery of an instrument, complete in
form, to a person who takes it as a holder.
Significantly, delivery is the final act essential to the negotiability of an instrument.
Delivery denotes physical transfer of the instrument by the maker or drawer coupled with an intention to convey
title to the payee and recognize him as a holder. Dy vs. People, 571 SCRA 59, November 14, 2008
2.03 PRIMA FACIE EVIDENCE OF KNOWLEDGE OF INSUFFICIENT FUNDS.
a. When does a prima facie evidence of knowledge of insufficient funds arise? (SEC.2)
There is a prima facie evidence of knowledge of insufficiency of funds when the check was presented within 90
days from the date appearing on the check and was dishonored unless:
a. such maker or drawer pays the holder thereof the amount due thereon within 5 banking days after receiving
notice that such check has not been paid by the drawee , or
b.
makes arrangements for payment in full by the drawee of such check within (5) banking days after receiving
notice of non-payment.
Respecting the second element of the crime, the Supreme Court ruled in Tan v. Philippine Commercial International
Bank 552 SCRA 532, April 23, 2008 that the prosecution must prove the accused knew, at the time of issuance, that he does
not have sufficient funds or credit for the full payment of the check upon its presentment. The element of "knowledge"
involves a state of mind that obviously would be difficult to establish, hence, the statute creates a prima facie presumption
of knowledge on the insufficiency of funds or credit coincidental with the attendance of the two other elements.
b. Is the 90 day-period to deposit the check an element of BP 22?
No. That the check must be deposited within ninety (90) days is simply one of the conditions for the prima facie
presumption of knowledge of lack of funds to arise, but it is not an element of the offense, and neither does it discharge the
accused from his duty to maintain sufficient funds in the account within a reasonable time thereof. Nagrarnpa vs. People,
386 SCRA 412
c. What is the consequence if there is failure to deposit the check within the 90 day-period?
The only consequence of the failure to present the check for payment within the 90-day period is that there arises no
prima facie presumption of knowledge of insufficiency of funds. Nagrarnpa vs. People, 386 SCRA 412
d. Cite the importance of notice of dishonor to establish a prima facie evidence of knowledge of insufficiency of funds.
The presumption is brought into existence only upon credible proof that the issuer had received a notice of dishonor
and that within five days from receipt thereof, he failed to pay the amount of the check or to make arrangements for its
payment.
The presumption or prima facie evidence as provided in this section cannot arise, if such notice of nonpayment by
the drawee bank is not sent to the maker or drawer, or if there is no proof as to when such notice was received by the
drawer, since there would simply be no way of reckoning the crucial 5-day period. Azarcon vs. Gonzales, G.R. No. 185906,
June 29, 2010
e. Cite prevailing doctrines on notice of dishonor.
1. Procedural due process clearly enjoins that a notice of dishonor of a check be given the signatory the absence of
a notice of dishonor necessarily deprives an accused an opportunity to preclude a criminal prosecution. Marigomen
vs. People, 459 SCRA 169
2. Receipts for registered letters and return receipts do not by themselves prove receipt they must be properly
authenticated to serve as proof of receipt of the letters, claimed to be a noticed of dishonor. Rico vs. People, 392
SCRA 61
3. It is not enough for the prosecution to prove that a notice of dishonor was sent to the drawee of the check. The
prosecution must also prove actual receipt of said notice because the fact of service provided for in the law is
reckoned from receipt of such notice of dishonor by the drawee of the check. Cabrera v. People, 407 SCRA 247
4. Possibilities cannot replace proof beyond reasonable doubt. When there is insufficient proof of receipt of notice
of dishonor, as in this case, the presumption of knowledge of insufficiency of funds cannot arise. A notice of
dishonor personally sent to and received by the accused is necessary before one can be held liable under B.P. Blg.
22. The failure of the prosecution to prove the receipt by petitioner of the requisite written notice of dishonor
and that she was given at least five banking days within which to settle her account constitutes sufficient ground
for her acquittal. Ting v. Court of Appeals, 344 SCRA 551
5. Registry return cards must be authenticated to serve as proof of receipt of letters sent through registered mail.
as served on the addressee or a duly authorized agent of the
SCRA 238, June 19, 2008
f.
e the authorized agent must write
Suarez vs. People, 555
Can the notice of dishonor be done orally?
No. the law requires that the insufficiency of funds in or credit shall be explicitly stated in the dishonor, hence, a
mere oral notice or demand to pay is insufficient for conviction under BP. 22. Domagsang vs. CA, G.R. 139292, 5 December
2000
The notice must be in writing. A mere oral notice to pay a dishonored check will not suffice. The lack of a written
notice is fatal for the prosecution. Azarcon vs. Gonzales, G.R. No. 185906, June 29, 2010
g. Who may send the notice of dishonor?
The notice of dishonor of a check may be sent to the drawer or maker, by the drawee bank, the holder of the check, or
the offended party. Ambito vs. People, 579 SCRA 68, February 13, 2009
2.04 GIVE THE ELEMENTS OF THE SECOND PARAGRAPH OF SECTION 1 OF BP.22.
This way of committing BP.22 suggests that at the time the check was issued, the issuer had sufficient funds in or
credit with the drawee bank. However, the check was dishonored when presented for payment within 90 days from its date
for failure to maintain sufficient funds or credit to cover the amount.
The elements are as follows:
a) any person, makes or draws and issues a check;
b) such person has sufficient funds in or credit with the drawee bank;
c) failure to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a
period of ninety (90) days from the date appearing thereon;
d) for which reason it is dishonored by the drawee bank.
Illustrative case
BAR Q. [1996]The accused was convicted under BP Blg. 22 for having issued several checks which were dishonored by the
drawee bank on their due date because the accused closed her account after the issuance of checks. On appeal, she
argued that she could not be convicted under BP Blg. 22 by reason of the closing of her account because said law applies
solely to checks dishonored by reason of insufficiency of funds and that at the time she issued the checks concerned, she
had adequate funds in the bank. While she admits that she may be held liable for estafa under Article 215 of the Revised
Penal Code, she cannot however be found guilty of having violated BP 22.
Is her contention correct? Explain.
Suggested Answer: No. BP. 22 does not limit its application to insufficiency of funds in the account at the time of
the issuance of the check. It likewise punishes under Section 1, 2nd paragraph any person who may have sufficient funds in
the drawee bank when he issued the check, but fails to keep sufficient funds to cover the full amount of the check when
presented to the drawee bank within ninety (90) days from the date appearing thereon.
It bears stressing that if a check the checks was issued to apply on account or for value, and was subsequently
dishonored, for lack of insufficient funds on their due date, such act violates BP 22.
2.05 COMPARE VIOLATION OF BP 22 FROM ESTAFA UNDER PAR. 2 [D], ARTICLE 315, OF THE REVISED PENAL CODE.
First, the elements of estafa under paragraph 2(d), Article 315 of the RPC are (1) the postdating or issuance of a
check in payment of an obligation contracted at the time the check was issued; (2) lack of sufficiency of funds to cover the
check; and (3) damage to the payee. Cajigas vs. People, 580 SCRA 54, February 23, 2009
deceit and damage are not essential or required. The essential element
of that offense is knowledge on the part of the maker or drawer of the check of the insufficiency of his funds. The gravamen
of the offense is the issuance of a bad check, not the non-payment of an obligation. in estafa gravamen of the offense is
deceit.
Second, Article 315, Par.2 (d) is a crime against property because the issuance of the check is used as a means to
obtain a valuable consideration from the payee.
On the other hand, in BP. 22, the mere act of issuing an unfunded check is an offense against public order to stem
the harm caused by these bouncing checks to the community. Mitra vs. People, July 05, 2010
Third, in estafa, the failure of the drawer to deposit the amount necessary to secure payment of the check within 3
days from receipt of notice from the bank and or the payee or holder that said check has been dishonored for lack or
insufficiency of funds is prima facie evidence of deceit constituting false pretense or fraudulent act.
In BP. 22, the failure of the drawer to pay in full the payee or holder within 5 banking days after receiving notice
that the check has been rejected by the drawee bank gives rise to presumption of knowledge of insufficiency of funds or
credit.
MOST IMPT DISTINCTION Fourth, in estafa, the check is issued in payment of a simultaneous obligation to defraud
the creditor.
In BP. 22, the check is issued in payment of a pre-existing obligation.
Fifth, in estafa, an endorser who with knowledge that the check is worthless and had acted with deceit, is liable IF
PROSECUTION CAN PROVE CONSPIRACY
In BP. 22, the persons liable are the maker, drawer and the issuer but not an endorser.
Lastly, since estafa is mala in se, good faith is a proper defense.
BP 22 is mala prohibitum, it is punished by a special law and therefore, good faith is not a defense.
PREas an element of estafa connotes that the issuance of a check is used as a means to
obtain valuable consideration from the payee. Deceit is the efficient cause for defraudation. To defraud is to deprive some
right, interest, or property by deceitful devise. People vs.Quesada, 60 Phil. 515
In the issuance of a check in payment of a
-existing obligation
as its consideration had long been delivered to him before the check was issued.Since an obligation has already been
contracted, it cannot be said that the payee parted with his property or that the drawer has obtained something of value
as a result of the postdating or issuance of the bad check in payment of a pre-existing obligation. People vs. Lilius, 59 Phil.
339
Unlike in estafa, the accused in this case obtain nothing when he issued the check, his debt for the payment thereof
had been contracted prior to its issuance.
2.07 EXPLAIN DECEIT AS AN ELEMENT OF ESTAFA.
Deceit as an element of estafa is a specie of fraud. It is actual fraud which consists in any misrepresentation or
contrivance where a person deludes another, to his hurt. There is deceit when one is misled -- by guile, trickery or by other
means - to believe as true what is really false. Dy vs. People, 571 SCRA 59, November 14, 2008
2.08 EXPLAIN DAMAGE AS AN ELEMENT OF ESTAFA.
Damage as an element of estafa may consist in (1) the offended party being deprived of his money or property as a
result of the defraudation; (2) disturbance in property right; or (3) temporary prejudice. Nagrampa vs. People, 386 SCRA 412
2.09 EXPLAIN ESTAFA THRU THE ISSUANCE OF A CHECK.
To constitute estafa, the act of postdating .or issuing a check in payment of obligation must be the efficient cause
of defraudation and, as such, it should be either prior to, or simultaneous with, the act of fraud. Nagrampa vs. People, 386
SCRA 412
2.10 CAN A PERSON BE BOTH LIABLE FOR VIOLATION OF BP 22 AND ANOTHER PROVISION OF THE REVISED PENAL CODE?
(SEC.5)
Yes, the filing of a criminal case under B.P. 22 shall not prejudice any liability arising from a felony committed under
the Revised Penal Code. Section 5 is explicit:
Penal
2.11 prima facie evidence of the making or issuance of said check, SEC 3
In all prosecutions under this Act, the introduction in evidence of any unpaid and dishonored check, having the
drawee's refusal to pay stamped or written thereon or attached thereto, with the reason therefor as aforesaid, shall
be prima facie evidence of the making or issuance of said check, and the due presentment to the drawee for
payment and the dishonor thereof, and that the same was properly dishonored for the reason written, stamped or
attached by the drawee on such dishonored check.
Not with standing receipt of an order to stop payment, the drawee shall state in the notice that there were no
sufficient funds in or credit with such bank for the payment in full of such check, if such be the fact.
B. DEFENSES IN BP. 22
3.00 WHAT ARE THE POSSIBLE DEFENSES IN BP 22?
a. Checks issued to person who was not authorized to collect and receive the same are without valuable
consideration and are also considered issued for a non-existing account. Cariño v. De Castro, 553 SCRA 688,
April 30, 2008
b. The presentation of the registry card, with an unauthorized signature, does not meet therequired proof beyond
reasonable doubt that the petitioner received such noticed, especially considering that he denied receiving it.
As there is insufficient proof that the petitioner received notice of dishonor, the presumption that he had
knowledge of insufficiency of funds cannot arise. Suarez v. People 555, SCRA 238, June 19, 2008
c. Presumption of knowledge of insufficiency of funds is not conclusive as it may be rebutted by full payment.
Payment is a complete defense that would lie regardless of the strength of the evidence presented by the
prosecution. Tan vs. Philippine Commercial International Bank 552 SCRA 532, April 23, 2008
d. Only a full payment at the time of its presentment or during the five-day grace period could exonerate one
from criminal liability under B.P. Blg. 22 and that subsequent payments can only affect the civil, but not the
criminal, liability. Tan sv. Philippine Commercial International Bank 552 SCRA 532, April 23, 2008
e. Under B.P. Blg. 22, the prosecution must prove not only that the accused issued a check that was subsequently
dishonored. It must also establish that the accused was actually notified that the check was dishonored, and
that he or she failed, within five (5) banking days from receipt of the notice, to pay the holder of the check the
amount due thereon or to make arrangement for its payment. Absent proof that the accused received such
notice, a prosecution for violation of the Bouncing Checks Law cannot prosper.
In the case of Ambito vs. People and CA, G.R. No. 127327, 13 February 2009, there being no proof that he
was given any written notice informing him of the fact that his checks were dishonored and giving him five (5)
banking days within which to make arrangements for payment of the said checks, the rebuttable presumption
that he had knowledge of the insufficiency of his funds has no application in the present case.
f.
To be liable under Section 1 of B.P. Blg. 22, the check must be dishonored by the drawee bank for insufficiency
of funds or credit or dishonored for the same reason had not the drawer, without any valid cause, ordered the
bank to stop payment.
In Tan vs. People, 349 SCRA 777, 2001, the Court acquitted the petitioner therein who was indicted under B.P. Blg.
22, upon a check which was dishonored for the reason DAUD, among others. Even without relying on the credit line,
petitioner's bank account covered the check she issued because even though there were some deposits that were still
uncollected the deposits became "good" and the bank certified that the check was "funded."
To be liable under Section 1of B.P. Blg. 22, the check must be dishonored by the drawee bank for insufficiency of
funds or credit or dishonored for the same reason had not the drawer, without any valid cause, ordered the bank to stop
payment.
g.
Blg. 22 speaks only of insufficiency of funds and does not treat of uncollected deposits.
In Dy vs. People, 571 SCRA 59, November 14, 2008, the High Court declared that the law cannot be interpreted in
such a way as to expand its provision to encompass the situation of uncollected deposits because it would make the law
more onerous on the part of the accused. Again, criminal statutes are strictly construed against the Government and
liberally in favor of the accused.
h. Prescription is a proper defense. The prescriptive period is 4 years reckoned from the lapse of the 5 banking
days from notice of dishonor within which to make good the check.
i.
Forgery of the signature appearing on the check. When a signature is forged or made without the authority of
the person whose signature it purports to be the check is wholly inoperative unless the party against whom it
is sought to enforce such right is precluded from setting up the forgery or want of authority. Ilusorio vs. Court
of Appeals, 353 SCRA 89
3.01 IS AN AGREEMENT SURROUNDING THE ISSUANCE OF DISHONORED CHECKS RELEVANT TO THE PROSECUTION FOR
VIOLATION OF BATAS PAMBANSA 22?
No, an agreement surrounding the issuance of dishonored checks is irrelevant to the prosecution for violation of Batas
Pambansa Blg. 22. Dreamwork Construction, Inc. v. Janiola 591 SCRA 466, June 30, 2009
It has been consistently declared that the cause or reason for the issuance of a check is inconsequential in determining
criminal culpability under B.P. Blg. 22.
As held in the case of Jose v. Suarez 556 SCRA 772, June 30, 2008, the cause or reason for the issuance of a check is
inconsequential in determining criminal culpability under B.P. Blg. 22. The mere act of issuing a worthless check is malum
prohibitum provided the other elements of the offense are properly proved.
Noteworthy to cite to illustrate this point is the case ofDreamwork Construction, Inc. vs. Janiola and Hon. Famini
G.R. No. 184861, 30 June 2009
FACTS: On October 18, 2004, petitioner Dreamwork Construction Inc., through its President, filed a case for violation of
Batas Pambansa Bilang 22 (BP 22) against private respondent. Correspondingly, petitioner filed a criminal information for
violation of BP 22 against private respondent. On September 20, 2006, private respondent, joined by her husband, instituted
a civil complaint against petitioner by filing a Complaint for the rescission of an alleged construction agreement between
the parties, as well as for damages. Notably, the checks, subject of the criminal cases before the MTC, were issued in
consideration of the construction agreement.
Thereafter, on July 25, 2007, private respondent filed a Motion to Suspend Proceedings alleging that the civil case
posed a prejudicial question as against the criminal cases.
Petitioner opposed the suspension of the proceedings in the criminal cases as the rescission of the contract upon
which the bouncing checks were issued is a separate and distinct issue from the issue of whether private respondent
violated BP 22. The MTC granted the Motion to Suspend Proceedings.
ISSUE: Whether the resolution of the civil case for rescission of construction agreement between the parties determinative
of the prosecution of the criminal action for violation of BP 22.
RULING: Prejudicial question is inapplicable in this case. The fact that there exists a valid contract or agreement to support
the issuance of the check/s or that the checks were issued for valuable consideration does not make up the elements of the
crime. Thus, the Court has held in a long line of cases that the agreement surrounding the issuance of dishonored checks is
irrelevant to the prosecution for violation of BP 22. It must be emphasized that the gravamen of the offense charge is the
issuance of a bad check. The purpose for which the check was issued, the terms and conditions relating to its issuance, or
any agreement surrounding such issuance are irrelevant to the prosecution and conviction of petitioner.
To determine the reason for which checks are issued, or the terms and conditions for their issuance, will greatly
erode the faith the public reposes in the stability and commercial value of checks as currency substitutes, and bring havoc
in trade and in banking communities. The clear intention of the framers of B.P. 22 is to make the mere act of issuing a
worthless check malum prohibitum.
3.02
IS LACK OF VALUABLE CONSIDERATION A PROPER DEFENSE IN VIOLATION OF BP 22?
No. The issue of lack of valuable consideration for the issuance of checks which were later on dishonored for
insufficient funds is immaterial to the success of a prosecution for violation of BP 22. Dreamwork Construction, Inc. v.
Janiola 591 SCRA 466, June 30, 2009
In Lunaria vs. People, 5701 SCRA 572, November 11, 2008, the Supreme Court stated that even in cases where there
had been payment, through compensation or some other means, there could still be prosecution for violation of B.P. 22.
The gravamen of the offense under this law is the act of issuing a worthless check or a check that is dishonored upon its
presentment for payment, not the nonpayment of the obligation.
3.03
a.
NOVATION IN BP. 22
IS NOVATION A PROPER DEFENSE IN BP.22?
as the said special law punishes the act of issuing a worthless check and not the purpose for which the check was issued or
the terms and conditions relating to its issuance. Thus, even if it be subsequently declared that novation took place,
respondent is not exempt from prosecution for violation of B.P. 22 for the dishonored checks. Land Bank of the Philippines
vs. Jacinto, G.R. No. 154622, August 3, 2010
It is well settled that the mere act of issuing a worthless check, even if merely as an accommodation, is covered by
B.P. 22. The Court has held that the agreement surrounding the issuance of dishonored checks is irrelevant to the
prosecution for violation of B.P. 22.
3.04
STOP PAYMENT IN BP. 22
a. IS
A PROPER DEFENSE IN BP. 22?
of account that the check bounced due to insufficiency of funds, the drawer of the check is still liable.Chang vs. IAC, 146
SCRA 464
C. CORPORATION IN RELATION TO BP. 22
4.00 DIFFERENTIATE CORPORATE CHECK FROM A PERSONAL CHECK.
A corporate check is one signed by a natural person in the name of the corporation. The drawer, in effect, is the
corporation or juridical entity while personal check is one drawn by a natural person in his name.
4.01 WHO IS LIABLE IF THE CHECK IS DRAWN BY A CORPORATION, COMPANY OR ENTITY?
Section 1 of the law provides:
In explaining this afore-quoted rule, the Supreme Court in Mitra vs. People, G.R. No. 191404, July 5, 2010 held:
is unequivocal and mandatory that the person who actually signed the corporate check shall be held liable for a
It went on to elucidate:
e Court ruled that the accused was liable on the unfunded corporate
check which he signed as treasurer of the corporation. He could not invoke his lack of involvement in the negotiation for the
transaction as a defense because BP 22 punishes the mere issuance of a bouncing check, not the purpose for which the check
was issued or in consideration of the terms and conditions relating to its issuance. In this case, Mitra signed the LNCC checks
as treasurer. Following Llamado, she must then be held liable for v
4.02 EXPLAIN WHY A CORPORATE OFFICER WHO ISSUED A DISHONORED CHECK IS PERSONALLY LIABLE.
The personal liability of the corporate officer is predicated on the principle that he cannot shield himself from
liability from his own acts on the ground that it was a corporate act and not his personal act. Gosiaco vs. Ching and Casta,
G.R. 173807, 16 April 2009
4.03 WHO MUST RECEIVE THE NOTICE OF DISHONOR IF THE BOUNCED CHECK IS DRAWN BY A CORPORATION, COMPANY
OR ENTITY?
The officer who is accused of signing the check must receive the notice of dishonor. Constructive notice to the
corporation, who has a separate personality from its officer, is not enough. The Court stated its importance when it held in
Marigomen vs. People, 459 SCRA 169, that if the drawer or maker is an officer of a corporation, the notice of dishonor to
the said corporation is not notice to the employee or officer who drew or issued the check for and in its behalf.
4.04 MAY A MEMBER OF THE BOARD OF DIRECTORS OF A CORPORATION FILE A CASE OF BP 22?
Yes, provided he is authorized to sue for and on behalf of the corporation. Under Section 36 of the Corporation
Code, read in relation to Section 23, it is clear that where a corporation is an injured party, its power to sue is lodged with
its board of directors or trustees.
In Muñoz vs. People, 548 SCRA 473, March 14, 2008, Concord, a domestic corporation, was the payee of the bum
check, not petitioner. Therefore, it is Concord, as payee of the bounced check, which is the injured party. Since petitioner
was neither a payee nor a holder of the bad check, he had neither the personality to sue nor a cause of action against the
accused. Petitioner failed to show any proof that he was authorized or deputized or granted specific powers by Concord's
board of director to sue for and on behalf of the firm. Clearly, petitioner as a minority stockholder and member of the board
of directors had no such power or authority to sue on Concord's behalf.
D. CIVIL LIABILITY VERY IMPT
5.00 CITE CERTAIN PRINCIPLES ON CIVIL LIABILITY.
a. An acquittal based on reasonable doubt does not preclude the award of civil damages.
b. The possible single civil liability arising from the act of issuing a bouncing check can be the subject of both civil
actions deemed instituted with the estafa case and the prosecution for violation of Batas Pambansa Blg. 22,
simultaneously available to the complaining party, without traversing the prohibition against forum shopping.
Under the present revised Rules, the criminal action for violation of BP Blg. 22 includes the corresponding civil
action to recover the amount of the checks. It should be stressed, this policy is intended to discourage the separate filing
of the civil action. In fact, the Rules even prohibits the reservation of a separate civil action, i.e., one can no longer file a
separate civil case after the criminal complaint is filed in court.
The only instance when separate proceedings are allowed is when the civil action is filed ahead of the criminal
be fully adjudicated in the proceedings before the court trying the BP Blg. 22 cases, resort to a separate action to recover
civil liability is clearly unwarranted on account of res judicata, for failure of petitioner to appeal the civil aspect of the
cases. In view of this special rule governing actions for violation of BP Blg. 22, Article 31 of the Civil Code is not applicable.
Cheng v. Sy 592, SCRA 155, July 7, 2009
c. The rule is that upon filing of the estafa and Batas Pambansa Blg. 222 cases against respondents, where the
petitioner has not made any waiver, express reservation to litigate separately, or has not instituted the
corresponding civil action to collect the amount involved and damages prior to the criminal action, the civil
action is deemed instituted with the criminal cases. Cheng v. Sy 592 SCRA 155, July 7, 2009
5.01
AFTER THE BP. 22 CASES WERE DISMISSED?
No. Under the present revised Rules, the criminal action for violation of BP Blg. 22 includes the corresponding civil
action to recover the amount of the checks. This policy is intended to discourage the separate filing of the civil action.
The Rules even prohibits the reservation of a separate civil action, i.e., one can no longer file a separate civil case
after the criminal complaint is filed in court. The only instance when separate proceedings are allowed is when the civil
action is filed ahead of the criminal case. Even then, the Rules encourage the consolidation of the civil and criminal cases.
IS THERE AN EXCEPTION?
Yes, if there is a finding of gross mistake committed by a prosecutor in handling BP Blg. 22 cases as enunciated in
the landmark case of Cheng vs. Sy, G. R. No. 174238, July 7, 2009.
In this case, petitioner filed two cases of estafa before the RTC and two cases for violation of B. P. Blg. 22 before
the MTC against the respondents for issuing to her PBC checks in payment of their loan, both of which were dishonored for
having been drawn against a closed account. The estafa cases were dismissed for failure of the prosecution to prove the
elements of the crime, while the B. P. Blg. 22 cases were dismissed, on demurrer, on account of the failure of petitioner to
identify the accused respondents in open court. Petitioner indirectly faulted the prosecutor for failure to protect her
interest.
The Supreme Court finds that petitioner would be left without a remedy to recover from respondents the allegedly
loaned from her. It ruled:
proceedings critical. Petitioner indirectly protests that the public prosecutor failed to protect and prosecute her cause when
he failed to have her establish the identities of the accused during the trial and when he failed to appeal the civil action
deemed impliedly instituted with the BP Blg. 22 cases. On this ground, we agree with petitioner.
Faced with the dismissal of the BP Blg.
would have been to appeal the civil action to recover the amount loaned to respondents corresponding to the bounced
checks. Hence, the said civil action may proceed requiring only a preponderance of evidence on the part of petitioner. Her
failure to appeal within the reglementary period was tantamount to a waiver altogether of the remedy to recover the civil
liability of respondents. However, due to the gross mistake of the prosecutor in the BP Blg. 22 cases, we are constrained to
digress from this rule.
5.02 CIVIL LIABILITY WHEN A CORPORATION IS INVOLVEDa. Under the amended rules on bouncing checks, the previous option to directly pursue the civil liability against the
corporation that incurred the obligation is no longer that clear.
B.P. Blg. 22 imposes a distinct civil liability on the signatory of the check which is distinct from the civil liability of the
corporation for the amount represented from the check. The civil liability attaching to the signatory arises from the
wrongful act of signing the check despite the insufficiency of funds in the account, while the civil liability attaching to the
corporation is itself the very obligation covered by the check or the consideration for its execution. Yet these civil liabilities
are mistaken to be indistinct. The confusion is traceable to the singularity of the amount of each. Gosiaco vs. Ching, 585
SCRA 471, April 16, 2009
b. The civil action impliedly instituted in the Batas Pambansa Blg 22 action is only the civil liability of the signatory
and not that of the corporation.
It follows that the actions involving these liabilities should be adjudged according to their respective standards and
merits. In the B.P. Blg. 22 case, what the trial court should determine whether or not the signatory had signed the check
with knowledge of the insufficiency of funds or credit in the bank account, while in the civil case the trial court should
ascertain whether or not the obligation itself is valid and demandable. The litigation of both questions could, in theory,
proceed independently and simultaneously without being ultimately conclusive on one or the other. Gosiaco vs. Ching 585
SCRA 471, April 16, 2009
5.03 CAN A COURT IMPOSE SUBSIDIARY CIVIL LIABILITY AGAINST A CORPORATION IN BP. 22 CASE?
No. In Gosiaco vs. Ching And Casta, G.R. No. 173807, 16 April 2009, the Supreme Court had the occasion to explain
the reason why. It held that nowhere in B.P. Blg. 22 is it provided that a juridical person may be impleaded as an accused or
defendant in the prosecution for violations of that law, even in the litigation of the civil aspect thereof.
It might be argued that under the current rules, if the signatory were made liable for the amount of the check by
reason of the B.P. Blg. 22 case, such signatory would have the option of recovering the same amount from the corporation.
If the signatory does not have sufficient assets to answer for the amount of the check a distinct possibility considering
the occasional large-scale transactions engaged in by corporations the corporation would not be subsidiarily liable to the
complainant, even if it in truth the controversy, of which the criminal case is just a part, is traceable to the original obligation
of the corporation.
While the Revised Penal Code imposes subsidiary civil liability to corporations for criminal acts engaged in by their
employees in the discharge of their duties, said subsidiary liability applies only to felonies, and not to crimes penalized by
special laws such as B.P. Blg. 22. And nothing in B.P. Blg. 22 imposes such subsidiary liability to the corporation in whose
name the check is actually issued.
F. ADMINISTRATIVE CIRCULAR NO. 12-2000 AND ADMINISTRATIVE CIRCULAR NO. 13-2001
6.00 WHAT IS ADMINISTRATIVE CIRCULAR NO. 12-2000? READ RE: PREFERENCE IN IMPOSING PENALTY IN CASES OF
CONVICTION
It is a circular which refers to the imposition of penalties for violation of B.P. 22. It provides:
B.P. Blg. 22 (An Act Penalizing the Making or Drawing and Issuance of a Check Without Sufficient Funds for
Credit and for Other Purposes) imposes the penalty of imprisonment of not less than thirty (30) days but not more than one
(1) year or a fine of not less than but not more than double the amount of the check, which fine shall in no case exceed
P200,000, or both such fine and imprisonment at the discretion of the court.
In its decision in Eduardo Vaca vs. Court of Appeals (G.R. No. 131714, 16 November 1998; 298 SCRA 656, 664) the
Supreme Court (Second Division) per Mr. Justice V. Mendoza, modified the sentence imposed for violation of B.P. Blg. 22 by
deleting the penalty of imprisonment and imposing only the penalty of fine in an amount double the amount of the check. In
justification thereof, the Court said:
Petitioners are first-time offenders. They are Filipino entrepreneurs who presumably contribute to the national
economy. Apparently, they brought this appeal, believing in all good faith, although mistakenly that they had not committed
a violation of B.P. Blg. 22. Otherwise, they could simply have accepted the judgment of the trial court and applied for probation
to evade a prison term. It would best serve the ends of criminal justice if in fixing the penalty within the range of discretion
allowed by Section 1, par. 1, the same philosophy underlying the Indeterminate Sentence Law is observed, namely, that of
redeeming valuable human material and preventing unnecessary deprivation of personal liberty and economic usefulness with
due regard to the protection of the social order. In this case, we believe that a fine in an amount equal to double the amount
of the check involved is an appropriate penalty to impose on each of the petitioners.
In the recent case of Rosa Lim vs. People(G. R. No. 130038, 18 September 2000), the Supreme Court en banc,
applying Vaca also deleted the penalty of imprisonment and sentenced the drawer of the bounced check to the maximum
of the fine allowed by B.P. Blg. 22, i.e.
All courts and judges concerned should henceforth take note of the foregoing policy of the Supreme Court on the
matter of the imposition of penalties for violations of B.P. Blg. 22.
The Court Administrator shall cause the immediate dissemination of this Administrative Circular to all courts and
judges concerned.
This Administrative Circular, referred to and approved by the Supreme Court en banc, shall take effect upon its
issuance.
Issued this 21st day of November 2000. X x
Court has not discriminalized B.P. 22 violations, nor have removed imprisonment as an alternative penalty.
Since 1998, this Court has held that it would best serve the ends of criminal justice if, in fixing the penalty to be
imposed for violation of B.P. 22, the same philosophy underlying the Indeterminate Sentence Law be observed, i.e., that
of redeeming valuable human material and preventing unnecessary deprivation of personal liberty and economic
usefulness with due regard to the protection of the social order. This policy was embodied in Supreme Court Administrative
Circular No. 12-2000, authorizing the non-imposition of the penalty of imprisonment in B.P. 22 cases. We also clarified in
Administrative Circular No. 13-2001, as explained in Tan v. Mendez, 383 SCRA 202 (2002), that we are not decriminalizing
B.P. 22 violations, nor have we removed imprisonment as an alternative penalty. Needless to say, the determination of
whether the circumstances warrant the imposition of a fine alone rests solely upon the judge. Should the judge decide that
imprisonment is the more appropriate penalty, Administrative Circular No. 12-2000 ought not to be deemed a hindrance.
Lunaria vs. People, 5701 SCRA 572, November 11, 2008.
6.01 ON THE OTHER HAND ,WHAT IS ADMINISTRATIVE CIRCULAR NO. 13-2001? - READ RE: PREFERENCE IN IMPOSING
PENALTY IN CASES OF CONVICTION
It is a circular addressed to all judges which clarifies Administrative Circular No. 12-2000 on the penalty for violation
of Batas Pambansa blg. 22. It provides:
Administrative Circular 122000 issued on 21 November 2000. In particular, queries have been made regarding the authority of Judges to:
1. Impose the penalty of imprisonment for violations of Batas Pambansa Blg. 22; and
2. Impose subsidiary imprisonment in the event that the accused who is found guilty of violating the provisions of B.P. Blg.
22, is unable to pay the fine which he is sentenced to pay considering that Administrative Circular No. 12-2000 adopted the
rulings in Eduardo Vaca v. Court of Appeals (G.R. No. 131714, 16 November 1998, 298 SCRA 656) and Rosa Lim v. People of
the Philippines (G.R. No. 130038, 18 September 2000) as a policy of the Supreme Court on the matter of the imposition of
penalties for violations of B.P. Blg. 22, without mentioning whether subsidiary imprisonment could be resorted to in case of
the accused's inability to pay the fine.
The clear tenor and intention of Administrative Circular No. 12-2000 is not to remove imprisonment as an alternative
penalty, but to lay down a rule of preference in the application of the penalties provided for in B.P. Blg. 22.
PREFERENCE PAYMENT OF FINE
IF CANNOT PAY FINE - IMPRISONMENT
The pursuit of this purpose clearly does not foreclose the possibility of imprisonment for violations of B.P. Blg. 22.
Neither does it defeat the legislative intent behind the law.
Thus, Administrative Circular No. 12-2000 establishes a rule of preference in the application of the penal provisions
of B.P. Blg. 22 such that where the circumstances of both the offense and the offender clearly indicate good faith or a clear
mistake of fact without taint of negligence, the imposition of a fine alone should be considered as the more appropriate
penalty. Needless to say, the determination of whether the circumstances warrant the imposition of a fine alone rests solely
upon the Judge. Should the Judge decide that imprisonment is the more appropriate penalty, Administrative Circular No.
12-2000 ought not be deemed a hindrance.
It is, therefore, understood that:
1. Administrative Circular 12-2000 does not remove imprisonment as an alternative penalty for violations of B.P. Blg. 22;
2. The Judges concerned may, in the exercise of sound discretion, and taking into consideration the peculiar circumstances
of each case, determine whether the imposition of a fine alone would best serve the interests of justice or whether forbearing
to impose imprisonment would depreciate the seriousness of the offense, work violence on the social order, or otherwise be
contrary to the imperatives of justice;
3. Should only a fine be imposed and the accused be unable to pay the fine, there is no legal obstacle to the application of
the Revised Penal Code provisions on subsidiary imprisonment.
The issuance of this Administrative Circular was authorized by the Court En Banc in A.M. No. 00-11-01-SC at its
session of 13 February 2001.
The Clerk of Court of the Supreme Court and the Court Administrator shall immediately cause the implementation
of this Administrative Circular.
This Administrative Circular shall be published in a newspaper of general circulation not later than 20 February
2001.
6.02 DOES ADMINISTRATIVE CIRCULAR N0. 13- 2001 DECRIMINALIZE VIOLATIONS OF BP. 22?
No. The Supreme Court pronounced in Lunaria vs. People, 5701 SCRA 572, November 11, 2008, that it has not
decriminalized B.P. 22 violations, nor have removed imprisonment as an alternative penalty.
The Court clarified that the determination of whether the circumstances warrant the imposition of a fine alone
rests solely upon the judge. Should the judge decide that imprisonment is the more appropriate penalty, Administrative
Circular No. 12-2000 ought not to be deemed a hindrance.
G. OTHER POINTS TO CONSIDER IN BP. 22
1. Each act of drawing and issuing a bouncing check constitutes a violation of B.P. Blg. 22.
2. If the drawer has a valid reason for stopping payment, he cannot be held liable under B.P. Blg. 22.
3. Cross checks are negotiable instruments, and therefore, come within the coverage of B.P. Blg. 22.
4.
If the bouncing check was issued to pay a pre-existing obligation, the drawer is liable only for violation of B.P. Blg.
22.
5. If the payee (the one receiving the payment) is aware of the insufficiency or lack of fund in the bank to cover the
check at the time it was issued, the drawer may be held liable for violation of B. P. Blg. 22. Knowledge of the payee
of the insufficiency or lack of funds of the drawer with the drawee bank is immaterial as deceit is not an essential
element of an offense penalized by BP Blg. 22
6. Even if a bad check is issued as a guarantee, Batas 22 is violated.
ADDENDUM:
Payment even beyond the 5-day period extinguishes criminal liability.
Although payment of the value of the bounced check, if made beyond the 5-day period provided for in B.P. Blg. 22,
would normally not extinguish criminal liability, the aforementioned cases show that the Court acknowledges the existence
of extraordinary cases where, even if all the elements of the crime of offense are present, the conviction of the accused
Griffith and in Tan, petitioner should not be penalized
although all the elements of violation of B.P. Blg. 22 are proven to be present. The fact that the issuer of the check had
already paid the value of the dishonored check after having received the subpoena from the Office of the Prosecutor should
have forestalled the filing of the Information in court. The spirit of the law which, for B.P. Blg. 22, is the protection of the
credibility and stability of the banking system, would not be served by penalizing people who have evidently made amends
for their mistakes and made restitution for damages even before charges have been filed against them. In effect, the
payment of the checks before the filing of the information has already attained the purpose of the law. (Ariel T. Lim vs
People, G.R. No. 190834, November 26, 2014, Peralta, J.)
-oooOOOooo-
CHAPTER VII. THE ANTI-FENCING LAW OF 1979
Presidential Decree No. 1612
______________________________________________
1.01 BAR Q. [1995] WHAT ARE THE ELEMENTS OF FENCING?
The elements of fencing are:
(a) a crime of robbery or theft has been committed;
(b) accused, who is not a principal or accomplice in the crime, buys, receives, possess, keeps, acquires, conceals, 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 said crime;
(c) the accused knows or should have known that said article, item, object or anything of value has been derived from the
proceeds of the crime of robbery or theft; and
(d) there is, on the part of the accused, intent to gain for himself or for another.
as accessory in theft/robbery
IF THIS ELEMENT IS ABSENT, prosecute
1.03 EXPLAIN THE DIFFERENCE AND SIMILARITY BETWEEN A FENCE AND AN ACCESSORY TO THEFT OR ROBBERY?
a. A fence is punished as a principal under PD, No 1612 and the penalty is higher, whereas an accessory to robbery
or theft under the Revised Penal Code is punished two degrees lower than the principal as a general rule.
b. Fencing is a malum prohibitum and therefore there is no need to prove criminal intent of the accused. Good faith
is not a defense. In accessory to robbery or theft under the Revised Penal Code, intent is an element of the crime and
therefore, good faith is a proper defense.
c. All the acts of one who is an accessory to the crimes of robbery or theft are included in the acts defined as
fencing. Corollarily, the accessory in the crimes of robbery or theft could be prosecuted as such under the Revised Penal
Code or as a fence under PD No. 1612.
prudence and intelligence would ascertain
the fact in performance of his duty to another or would govern his conduct upon assumption that such fact exists.
Knowledge refers to a mental state of awareness about a fact. Since the court cannot penetrate the mind of an
accused and state with certainty what is contained therein, it must determine such knowledge with care from the overt
acts of that person. And given two equally plausible states of cognition or mental awareness, the court should choose
the one which sustains the constitutional presumption of innocence. Dizon-Pamintuan vs. People, 234 SCRA 63(1994)
1.07 MUST INTENT TO GAIN BE PROVED?
Intent to gain need not be proved in crimes punishable by a special law such as P.D. 1612.
1.08 MUST PURCHASE OF THE STOLEN ARTICLES BE PROVED?
The law does not require proof of purchase of the stolen articles by petitioner, as mere possession thereof is
enough to give rise to a presumption of fencing. Dunlao, Sr. vs. Court of Appeals, 260 SCRA 788(1996)
Section 5 provides for the presumption of fencing:
does this presumption violate constitutional presumption of innocence? No
1.12 WHAT IS THE PRESUMPTION WHEN A STOREOWNER DISPLAYS ARTICLES?
When a storeowner displays articles, it is assumed that he is doing so with the intention of selling them.
1.13 DISCUSS THE NECESSITY OF SECURING A CLEARANCE OR PERMIT. (SEC. 6)
Section 6 underscores the importance of securing a clearance or permit in dealing with the buy and sell activities.
1.14 UNDER THE SAID RULES AND REGULATIONS, TO WHAT ITEMS DOES THE TERM "USED SECONDHAND ARTICLE"
REFER TO?
It shall refer to any goods, article, item, object or anything of value obtained from an unlicensed dealer or supplier,
regardless of whether the same has actually or in fact been used.
-oooOOOooo-
CHAPTER IX ANTI- MONEY LAUNDERING ACT OF 2001
R.A. No. 9160 as amended
by R.A. 9194, R.A. 10167, R.A. 10168 and
R.A. 10365, also known as An Act Further Strengthening
The Anti-Money Laundering Law
[BAR 2010, 2009, 2005]
___________________________________________________
1.03 AS AMENDED, DO
INCLUDE LAWYERS AND ACCOUNTANTS?
relation to information concerning their clients or where disclosure of information would compromise client confidences
or the attorney-client relationship: Provided, That these lawyers and accountants are authorized to practice in the
Philippines and shall continue to be subject to the provisions of their respective codes of conduct and/or professional
responsibility or any of its amendments.
1.04 WHAT IS THE DUTY OF
Covered persons shall report to the AMLC all covered transactions and suspicious transactions within five (5)
working days from occurrence thereof, unless the AMLC prescribes a different period not exceeding fifteen (15) working
days.
1.05 ARE LAWYERS AND ACCOUNTANTS REQUIRED TO REPORT COVERED AND SUSPICIOUS TRANSACTIONS?
Lawyers and accountants acting as independent legal professionals are not required to report covered and
suspicious transactions if the relevant information was obtained in circumstances where they are subject to professional
secrecy or legal professional privilege.
1.06
REFER TO?
involving or having direct relation to the following:
(1) Kidnapping for ransom under Article 267 of Act No. 3815, otherwise known as the Revised Penal Code, as amended;
(2) Sections 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15 and 16 of Republic Act No. 9165, otherwise known as the Comprehensive
Dangerous Drugs Act of 2002;
(3) Section 3 paragraphs B, C, E, G, H and I of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and
Corrupt Practices Act;
(4) Plunder under Republic Act No. 7080, as amended;
(5) Robbery and extortion under Articles 294, 295, 296, 299, 300, 301 and 302 of the Revised Penal Code, as amended;
(6) Jueteng and Masiao punished as illegal gambling under Presidential Decree No. 1602;
(7) Piracy on the high seas under the Revised Penal Code, as amended and Presidential Decree No. 532;
(8) Qualified theft under Article 310 of the Revised Penal Code, as amended;
(9) Swindling under Article 315 and Other Forms of Swindling under Article 316 of the Revised Penal Code, as amended;
(10) Smuggling under Republic Act Nos. 455 and 1937;
(11) Violations of Republic Act No. 8792, otherwise known as the Electronic Commerce Act of 2000;
(12) Hijacking and other violations under Republic Act No. 6235; destructive arson and murder, as defined under the Revised
Penal Code, as amended;
(13) Terrorism and conspiracy to commit terrorism as defined and penalized under Sections 3 and 4 of Republic Act No.
9372;
(14) Financing of terrorism under Section 4 and offenses punishable under Sections 5, 6, 7 and 8 of Republic Act No. 10168,
otherwise known as the Terrorism Financing Prevention and Suppression Act of 2012:
(15) Bribery under Articles 210, 211 and 211-A of the Revised Penal Code, as amended, and Corruption of Public Officers
under Article 212 of the Revised Penal Code, as amended;
(16) Frauds and Illegal Exactions and Transactions under Articles 213, 214, 215 and 216 of the Revised Penal Code, as
amended;
(17) Malversation of Public Funds and Property under Articles 217 and 222 of the Revised Penal Code, as amended;
(18) Forgeries and Counterfeiting under Articles 163, 166, 167, 168, 169 and 176 of the Revised Penal Code, as amended;
(19) Violations of Sections 4 to 6 of Republic Act No. 9208, otherwise known as the Anti-Trafficking in Persons Act of 2003;
(20) Violations of Sections 78 to 79 of Chapter IV, of Presidential Decree No. 705, otherwise known as the Revised Forestry
Code of the Philippines, as amended;
(21) Violations of Sections 86 to 106 of Chapter VI, of Republic Act No. 8550, otherwise known as the Philippine Fisheries
Code of 1998;
(22) Violations of Sections 101 to 107, and 110 of Republic Act No. 7942, otherwise known as the Philippine Mining Act of
1995;
(23) Violations of Section 27(c), (e), (f), (g) and (i), of Republic Act No. 9147, otherwise known as the Wildlife Resources
Conservation and Protection Act;
(24) Violation of Section 7(b) of Republic Act No. 9072, otherwise known as the National Caves and Cave Resources
Management Protection Act;
(25) Violation of Republic Act No. 6539, otherwise known as the Anti-Carnapping Act of 2002, as amended;
(26) Violations of Sections 1, 3 and 5 of Presidential Decree No. 1866, as amended, otherwise known as the decree Codifying
the Laws on Illegal/Unlawful Possession, Manufacture, Dealing In, Acquisition or Disposition of Firearms, Ammunition or
Explosives;
(27) Violation of Presidential Decree No. 1612, otherwise known as the Anti-Fencing Law;
(28) Violation of Section 6 of Republic Act No. 8042, otherwise known as the Migrant Workers and Overseas Filipinos Act
of 1995, as amended by Republic Act No. 10022;
(29) Violation of Republic Act No. 8293, otherwise known as the Intellectual Property Code of the Philippines;
(30) Violation of Section 4 of Republic Act No. 9995, otherwise known as the Anti-Photo and Video Voyeurism Act of 2009;
(31) Violation of Section 4 of Republic Act No. 9775, otherwise known as the Anti-Child Pornography Act of 2009;
(32) Violations of Sections 5, 7, 8, 9, 10(c), (d) and (e), 11, 12 and 14 of Republic Act No. 7610, otherwise known as the
Special Protection of Children Against Abuse, Exploitation and Discrimination;
(33) Fraudulent practices and other violations under Republic Act No. 8799, otherwise known as the Securities Regulation
Code of 2000; and
(34) Felonies or offenses of a similar nature that are punishable under the penal laws of
1.08 AS AMENDED BY RA 10365, HOW IS THE MONEY LAUNDERING OFFENSE COMMITTED UNDER SEC.4?
Section 4 provides the ways by which money laundering is committed. R.A. 10365 reads as follows:
Money laundering is committed by any person who, knowing that any monetary instrument or property
represents, involves, or relates to the proceeds of any unlawful activity:
(a) transacts said monetary instrument or property;
(b) converts, transfers, disposes of, moves, acquires, possesses or uses said monetary instrument or property;
(c) conceals or disguises the true nature, source, location, disposition, movement or ownership of or rights with respect to
said monetary instrument or property;
(d) attempts or conspires to commit money laundering offenses referred to in paragraphs (a), (b) or (c);
(e) aids, abets, assists in or counsels the commission of the money laundering offenses referred to in paragraphs (a), (b) or
(c) above; and
(f) performs or fails to perform any act as a result of which he facilitates the offense of money laundering referred to in
1.09 IS MONEY LAUNDERING COMMITTED WHEN THERE IS FAILURE TO REPORT A COVERED OR SUSPICIOUS TRANSACTION?
Yes, money laundering is also committed by any covered person who, knowing that a covered or suspicious
transaction is required under this Act to be reported to the Anti-Money Laundering Council (AMLC), fails to do so.
1.10 AS AMENDED BY RA 10365, WHAT ARE THE OTHER POWERS OF THE ANTI-MONEY LAUNDERING COUNCIL (AMLC)?
The Anti-Money Laundering Council has the power to:
1.
to apply before the Court of Appeals, ex parte, for the freezing of any monetary instrument or property alleged
to be laundered, proceeds from, or instrumentalities used in or intended for use in any unlawful activity as
defined in Section 3(i) hereof;
2.
to require the Land Registration Authority and all its Registries of Deeds to submit to the AMLC, reports on all
real estate transactions involving an amount in excess of Five hundred thousand pesos (P500,000.00) within
fifteen (15) days from the date of registration of the transaction, in a form to be prescribed by the AMLC. The
AMLC may also require the Land Registration Authority and all its Registries of Deeds to submit copies of
relevant documents of all real estate transactions.
1.12 MAY A PERSON BE CHARGED OF BOTH THE OFFENSE OF MONEY LAUNDERING AND THE UNLAWFUL ACTIVITY?
Yes. As amended by RA 10365, Section 6(a) provides that any person may be charged with and convicted of both
the offense of money laundering and the unlawful activity as herein defined. In fact, under par(b), it further states that the
prosecution of any offense or violation under this Act shall proceed independently of any proceeding relating to the unlawful
activity.
R.A. No. 10167 further amended Section 10 to read as follows:
ex parte petition by the AMLC and after determination that probable cause exists that any
monetary instrument or property is in any way related to an unlawful activity as defined in Section 3(i) hereof, the Court of
Appeals may issue a freeze order which shall be effective immediately, and which shall not exceed six (6) months depending
upon the circumstances of the case: Provided, That if there is no case filed against a person whose account has been frozen
within the period determined by the court, the freeze order shall be deemed ipso facto lifted: Provided, further, That this
new rule shall not apply to pending cases in the courts. In any case, the court should act on the petition to freeze within
twenty-four (24) hours from filing of the petition. If the application is filed a day before a nonworking day, the computation
of the twenty-four (24)-
1.15 WHAT IS THE REMEDY OF A PERSON WHOSE ACCOUNT HAS BEEN FROZEN?
A person whose account has been frozen may file a motion to lift the freeze order and the court must resolve this
motion before the expiration of the freeze order.
1.16 CAN A COURT ISSUE A TRO OR INJUNCTION AGAINST THE FREEZE ORDER?
No court shall issue a temporary restraining order or a writ of injunction against any freeze order, except the
Supreme Court.
Authority to Inquire into Bank Deposits. -- Notwithstanding the provisions of Republic Act No. 1405, as amended,
Republic Act No. 6426, as amended, Republic Act No. 8791, and other laws, the AMLC may inquire into or examine any
particular deposit or investment with any banking institution or non1.18 UNDER WHAT CIRCUMSTANCES IS AMLC AUTHORIZED TO INQUIRE INTO BANK DEPOSITS?
Only upon order of any competent court in cases of violation of this Act, when it has been established that there is
probable cause that the deposits or investments are related to an unlawful activities as defined in Section 3(I) hereof or a
money laundering offense under Section 4 hereof except:
that no court order shall be required
1.19 DOES SECTION 11 AUTHORIZE AN EX-PARTE ISSUANCE OF A BANK INQUIRY ORDER?
No. In the instances where a court order is required for the issuance of the bank inquiry order, nothing in Section
11 specifically authorizes that such order may be issued ex parte. Republic vs. Eugenio, Jr., 545 SCRA 384(2008)
1.20 DIFFERENTIATE SECTION 10 FROM SECTION 11.
1.21 IS CRIMINAL CONVICTION A PREREQUISITE FOR CIVIL FORFEITURE?
No. A criminal conviction for an unlawful activity is not a prerequisite for the institution of a civil forfeiture
proceeding. Stated otherwise, a finding of guilt for an unlawful activity is not an essential element of civil forfeiture.
Republic v. Glasgow Credit and Collection Services, Inc., 542 SCRA 95, January 18, 2008.
1.22 WHAT ARE THE TWO CONDITIONS WHEN APPLYING FOR CIVIL FORFEITURE?
RA 9160, as amended, and its implementing rules and regulations lay down two conditions when applying for civil
forfeiture: (1) when there is a suspicious transaction report or a covered transaction report deemed suspicious after
investigation by the AMLC and (2) the court has, in a petition filed for the purpose, ordered the seizure of any monetary
instrument or property, in whole or in part, directly or indirectly, related to said report. It is the preliminary seizure of the
property in question which brings it within the reach of the judicial process. Republic v. Glasgow Credit and Collection
Services, Inc. , 542 SCRA 95, January 18, 2008
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CHAPTER X ANTI-HAZING ACTS OF 2018"
REPUBLIC ACT No. 11053 Anti-Hazing Act of 2018"
[BAR Q. 2002]
___________________________________________________
1.00 DEFINE HAZING (Sec.1) / BAR Q. [2002] What is hazing as defined by law?
(RA No. 11053 Anti-Hazing Act of 2018) Hazing refers to any act that results in physical or psychological suffering,
harm, or injury inflicted on a recruit, neophyte, applicant, or member as part of an initiation rite or practice made
as a prerequisite for admission or a requirement for continuing membership in a fraternity, sorority, or organization
including, but not limited to paddling, whipping, beating, branding, forced calisthenics, exposure to the weather,
forced consumption of any food, liquor, beverage, drug or other substance, or any other brutal treatment or forced
physical activity which is likely to adversely affect the physical and psychological health of such recruit, neophyte,
applicant, or member.
This shall also include any activity, intentionally made or otherwise, by one person alone or acting with others, that tends
to humiliate or embarrass, degrade, abuse, or endanger, by requiring a recruit, neophyte, applicant, or member to do
menial, silly, or foolish tasks.
1.01 WHAT ARE THE REQUISITES BEFORE HAZING OR INITIATION RITES SHALL BE ALLOWED?
RA 11053 Sec. 4. Regulation of SchooL-Based Initiation Rites. Only initiation rites or practices that do not constitute
hazing shall be allowed: Provided, That:
"(a) A written application to conduct initiation rites shall be made to the proper authorities of the school not later than seven
(7) days prior to scheduled initiation date;
"(b) The written application shall indicate the place and date of the initiation rites and the names of the recruits, neophytes,
or applicants to be initiated and the manner by which they will conduct the initiation rites;
"(d) The initiation rites shall not last more than three (3) days;
"(e) The application shall contain the names of the incumbent officers of the fraternity, sorority, or organization and any
person or persons who will take charge in the conduct of the initiation rites;
"(f) The application shall be under oath with a declaration that it has been posted in the official school bulletin board, the
bulletin board of the office of the fraternity, sorority, or organization, and two(2) other conspicuous places in the
school or in the premises of the organization; and
"(g) The application shall be posted from the time of submission of the written notice to the school authorities or head of
organization and shall only be removed from its posting three (3) days after the conduct of the initiation rites.
1.02 WHAT IS THE DUTY OF THE HEAD OF SCHOOL OR ORGANIZATION WHEN THERE IS INITIATION RITES?
Sec. 5. Monitoring of Initiation Rites.- The head of the school or an authorized representative must assign at least two (2)
representatives of the school to be present during the initiation. It is the duty of the school representatives to see to it that
no hazing is conducted during the initiation rites and to document the entire proceedings. Thereafter, said representatives
who were present during the initiation shall make a report of the initiation rites to the appropriate officials of the school
regarding the conduct of the said initiation: Provided, That if hazing is still committed despite their presence, no liability
shall attach to them unless it is proven that they failed to perform an overt act to prevent or stop the commission thereof."
1.03 WHO ARE LIABLE IF A PERSON DIES OR SUFFERS PHYSICAL INJURY DURING INITIATION RITES?
Section 14 "(a) The penalty of reclusion perpetua and a fine of Three million pesos (P3,000,000.00) shall be imposed upon
those who actually planned or participated in the hazing if, as a consequence of the hazing, death, rape, sodomy, or
mutilation results therefrom;
1.04 MAY THE RESPONSIBLE OFFICIALS OF THE SCHOOL OR OF THE POLICE, MILITARY OR CITIZEN'S ARMY TRAINING ORGANIZATION,
IMPOSE ADMINISTRATIVE SANCTIONS ON PERSONS CHARGED?
"Sec. 13 Administrative Sanctions. - The responsible officials of the school, the uniformed learning institutions, the AFP or
the PNP may impose the appropriate administrative sanctions, after due notice and summary hearing, on the person
or the persons charged under this Act even before their conviction."
Yes, the responsible officials of the school or of the police, military or citizen's army training organization, may impose the
appropriate administrative sanctions on the person or the persons charged under this provision even before their conviction.
1.05 WHEN IS THE OWNER OF THE PLACE LIABLE AS AN ACCOMPLICE?
section 14 "The owner or lessee of the place where hazing is conducted shall be liable as principal and penalized under
paragraphs (a) or (b) of this section, when such owner or lessee has actual knowledge of the hazing conducted
therein but failed to take any action to prevent the same from occurring or failed to promptly report the same to the
law enforcement authorities if they can do so without peril to their person or their family
1.06 WHEN SHALL THE PARENTS BE LIABLE AS PRINCIPALS?
section 14 If the hazing is held in the home of one of the officers or members of the fraternity, sorority, or organization, the
parents shall be held liable as principals and penalized under paragraphs (a) or (b) hereof when they have actual
knowledge of the hazing conducted therein but failed to take any action to prevent the same from occurring or failed
to promptly report the same to the law enforcement authorities if such parents can do so without peril to their person
or their family.
1.07 MAY THE SCHOOL AUTHORITIES AND FACULTY MEMBERS BE HELD LIABLE AS ACCOMPLICES?
Section 14 "The school authorities including faculty members as well as barangay, municipal, or city officials shall
be liable as an accomplice and likewise be held administratively accountable for hazing conducted by the fraternities,
sororities, other organizations, if it can be shown that the school or barangay, municipal, or city officials allowed or consented
to the conduct of hazing, but such officials failed to take anby action to prevent the same from occurring or failed to promptly
report to the law enforcement authorities if the same can be done without peril to their person or their family.
1.08 CAN THE FORMER OFFICERS AND ALUMNI BE LIABLE AS PRINCIPALS EVEN IF THEY WERE ABSENT DURING THE HAZING?
Section 14 (b) The penalty of reclusion perpetua and a fine of Two million pesos (P2,000,000.00) shall be imposed upon:
(4) All former officers, nonresident members, or alumni of the fraternity, sorority, or organization
who are also present during the hazing
(d) The penalty of reclusion temporal and fine of One million pesos (P1,000,000.00) shall be imposed upon former officers,
nonresident member, alumni of the fraternity, sorority, or organization who, after the commission of any of the
prohibited acts proscribed herein, will perform any act to hide, conceal, or otherwise hamper or obstruct any
investigation that will be conducted thereafter:
1.09 WHEN MAY A FRATERNITY OR SORORITY'S ADVISER LIABLE AS PRINCIPAL?
Section 14 "(b) The penalty of reclusion perpetua and a fine of Two million pesos (P2,000,000.00) shall be imposed upon:
"(3) The adviser of a fraternity, sorority, or organization who is present when the acts constituting the hazing were committed
and failed to take action to prevent the same from occurring or failed to promptly report the same to the law
enforcement authorities if such adviser or adviser or advisers can do so without peril to their person or their family;
1.10 WHEN DOES THE PRIMA FACIE EVIDENCE OF PARTICIPATION AS PRINCIPAL ARISE?
Section 14 "The presence of any person, even if such person is not a member of the fraternity, sorority, or organization,
during the hazing is prima facie evidence of participation therein as a principal unless such person or persons
prevented the commission of the acts punishable herein or promptly reported the same to the law enforcement
authorities if they can do so without peril, to their person or their family.
1.11 MAY A PERSON CHARGED UNDER THIS PROVISION BE ENTITLED TO THE MITIGATING CIRCUMSTANCE OF NO INTENTION TO
COMMIT SO GRAVE A WRONG?
Section 14 "Any person charged under this Act shall not be entitled to the mitigating circumstances that there was no
intention to commit so grave a wrong.
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