[G.R. NO. 150877 : May 4, 2006]ELIDAD KHO and VIOLETA KHO v.HON. ENRICO LANZANAS, Presiding Judge of the RTC of ManilaCulled from the records are the following antecedent facts:

Shun Yih Chemistry Factory (SYCF), a business existing and operating in Taiwan and engaged in the manufacture and sale of Chin Chun Su Creams/Cosmetics, appointed Young Factor Enterprises in the Philippines, owned and operated by Quintin Cheng also known as Kho Seng Hiok, as its distributor of Chin Chun Su products in the Philippines for a term of two years beginning 1978.1Quintin Cheng registered with the Bureau of Food and Drugs (BFAD) as distributor of Chin Chun Su products. Quintin Cheng subsequently secured a supplemental registration for Chin Chun Su and device.2This supplemental registration was ordered cancelled by the Bureau of Patents, Trademarks and Technology Transfer3on the ground of failure of the registrant to file the required affidavit of non-use as required by Section 12 of Republic Act No. 166, as amended.4Notwithstanding this cancellation, Quintin Cheng executed on 30 January 1990 an Assignment of a Registered Trademark5and a Supplementary Deed of Assignment6dated 25 November 1991 wherein he sold all his right, title, interest and goodwill in the trademark Chin Chun Su and device to petitioner Elidad Kho.

In the meantime, animosity arose between SYCF and Quintin Cheng resulting in the termination of their distributorship agreement on 30 October 1990.7Consequently, on 30 November 1990, SYCF appointed respondent Summerville General Merchandising, represented by Ang Tiam Chay and Victor Chua, as its exclusive importer, re-packer and distributor of Chin Chun Su products in the Philippines8for a period of five years or until May 2005.

SYCF further executed a Special Power of Attorney dated 11 September 1991 in favor of Summerville General Merchandising granting it the authority to file complaints against usurpers of Chin Chun Su trademarks/tradename.9From the foregoing incidents arose several judicial and quasi-judicial proceedings.

1) Civil Case No. Q-91-10926 before the Regional Trial Court (RTC) of Quezon City, Branch 90On 20 December 1991, Elidad Kho/KEC Laboratory filed a Complaint for Injunction and Damages against Ang Tiam Chay and Summerville General Merchandising before the RTC of Quezon City, Branch 90, docketed as Civil Case No. Q-91-10926. Plaintiff therein Elidad Kho/KEC Laboratory sought to enjoin defendants Ang Tiam Chay and Summerville General Merchandising from using the name Chin Chun Su in their cream products.

On 22 January 1993, a decision in Civil Case No. Q-91-10926 was rendered, the dispositive portion of which provides: ACCORDINGLY, judgment is hereby rendered:

1. Declaring that plaintiff is not legally authorized to use the trademark "CHIN CHUN SU" and upholding the right of defendant Summerville General Merchandising & Co. to use said trademark as authorized by Shun Yih Chemistry Factory of Taiwan;

2. Declaring plaintiff to have the right to use the copyright claim on "OVAL FACIAL CREAM CONTAINER/CASE" by virtue of Certificate of Copyright Registration No. 3687 issued by the National Library on May 23, 1991;

3. No award of damages;

4. Counsels for plaintiff and defendants are awarded P75,000.00 each as attorney's fees; andcralawlibrary5. Both parties to pay proportionate fees.10Both parties appealed the RTC decision to the Court of Appeals, docketed as CA-G.R. CV NO. 48043 entitled, "Elidad C. Kho, doing business under the style of KEC Cosmetic Laboratory v. Summerville General Merchandising and Co., et al." In a decision11dated 22 November 1999, the appellate court affirmed in toto the decision of the trial court.12Elidad Kho elevated the case to this Court, docketed as G.R. No. 144100. In a resolution dated 28 August 2000, we denied the petition. We held that:

The issue is who, between petitioner Elidad C. Kho and respondent Summerville General Merchandising and Company has the better right to use the trademark "Chin Chun Su" on their facial cream product?cralawlibraryWe agree with both the Court of Appeals and the trial court that Summerville General Merchandising and Company has the better right to use the trademark "Chin Chun Su" on its facial cream product by virtue of the exclusive importation and distribution rights given to it by Shun Yih Chemistry Factory of Taiwan on November 20, 1990 after the latter cancelled and terminated on October 30, 1990 its Sole Distributorship Agreement with one Quintin Cheng, who assigned and transferred his rights under said agreement to petitioner Elidad C. Kho on January 31, 1990.

As correctly held by the Court of Appeals, petitioner Kho is not the author of the trademark "Chin Chun Su" and his only claim to the use of the trademark is based on the Deed of Agreement executed in his favor by Quintin Cheng. By virtue thereof, he registered the trademark in his name. The registration was a patent nullity because petitioner is not the creator of the trademark "Chin Chun Su" and, therefore, has no right to register the same in his name. Furthermore, the authority of Quintin Cheng to be the sole distributor of Chin Chun Su in the Philippines had already been terminated by Shun Yih Chemistry of Taiwan. Withal, he had no right to assign or to transfer the same to petitioner Kho.

WHEREFORE, the instant petition is hereby denied due course.132) BFAD Cosmetic Case No. CM-040-91At the other end of the spectrum, due to the proliferation of fake Chin Chun Su products, Summerville General Merchandising filed a Complaint14before the BFAD against KEC Cosmetic Laboratory owned by Elidad Kho.

In a resolution of the BFAD dated 4 February 1992, it ruled that:

WHEREFORE, the brand name clearance of CCS in favor of KEC is recalled and cosmetic registration number DR-X6113-78 dtd 11/17/78 is TEMPORARILY CANCELLED until KEC applies to change or amend the brand name CCS it is now using. For this purpose, KEC is hereby ordered to retrieve all locally produced Chin Chun Su Pearl Cream for relabelling as soon as the amendment of its brand name has been approved by this Bureau with the corresponding amended Certificate of Registration.

Summerville's application to register (renew or reinstate) CCS Medicated Cream under DR-X6113-78 in the name of Shun Yih Chemistry Factory is herewith approvedfor processingat BFAD-Product Services Division.153) Criminal Case No. 00-183261 before the RTC of Manila, Branch 1This is the case filed before the RTC of Manila, Branch 1, entitled, "People of the Philippines v. Elidad and Violeta Kho and Roger Kho," pursuant to the DOJ Resolution in I.S. No. 00A-02396 and I.S. No. 00B-10973, ordering the filing of a criminal complaint against Elidad, Roger and Violeta Kho.16Prior to the filing of Criminal Case No. 00-183261 before the RTC of Manila, Branch 1, on 18 January 2000, Victor Chua, representing Summerville General Merchandising, filed a Complaint for Unfair Competition, docketed as I.S. No. 00A-02396 entitled, "Summerville General Merchandising, represented by Victor Chua v. Elidad and Violeta Kho," before the Office of the City Prosecutor of Manila.

Elidad and Violeta Kho filed their counter-affidavit in the Complaint for Unfair Competition which served as their countercharge against Ang Tiam Chay and Victor Chua, likewise for Unfair Competition, docketed as I.S. No. OOB-10973.

On 29 March 2000, the Office of the City Prosecutor granted the consolidation of both I.S. No. 00A-02396 and I.S. No. 00B-10973. On 25 April 2000, Assistant City Prosecutor Rector Macapagal rendered a joint resolution dismissing both the Complaint and countercharge. This resolution of dismissal was reversed by the review resolution17dated 31 May 2000 issued by Assistant City Prosecutor Elmer Calledo who directed the filing of an information against Elidad Kho, Roger Kho and Violeta Kho for violation of Section 168.3(a) in relation to Sections 168 and 170, Republic Act No. 8293 (The Intellectual Property Code).18On 17 August 2000, Department of Justice (DOJ) Undersecretary Regis Puno issued a resolution19dismissing the Petition for Review filed by Elidad and Violeta Kho and upholding the ruling of Assistant City Prosecutor Calledo, directing the filing of charges against the Khos. Elidad and Violeta Kho filed a motion for reconsideration, and in a complete turnabout, on 28 September 2001, a resolution20was issued by then DOJ Secretary Hernando Perez again dismissing the Complaint and countercharge in I.S. No. 00A-02396 and I.S. No. 00B-10973 for lack of merit. Summerville General Merchandising accordingly filed a motion for reconsideration of this DOJ resolution dated 20 September 2001.

In view of the latest DOJ resolution ordering the dismissal of the complaint of Summerville General Merchandising against the Khos, the RTC of Manila, Branch 1, issued an Order dated 24 October 2001 directing the dismissal of the Complaint in Criminal Case No. 00-183261.21Summerville General Merchandising filed with the RTC of Manila, Branch 1, a motion for reconsideration of its Order of dismissal of Criminal Case No. 00-183261. For their part, Elidad and Violeta Kho also filed with the same court a supplemental motion insisting that the Order dismissing Criminal Case No. 00-183261 cannot be set aside because to do so would, in effect, reinstate the said criminal case and would already constitute double jeopardy. Acting on these motions, the RTC of Manila, Branch 1, issued an Order dated 21 August 2002 resolving the motions in the following manner:

The foregoing duly established facts indubitably supports accused's contention that a re-filing [o]f the Information would put them in double jeopardy. As ruled by the Supreme Court in Marcelo v. Court of Appeals, 235 SCRA 39, upon withdrawal of the Information, which is the logical consequence of the grant of the Motion to Withdraw, there no longer remained any case to dismiss.

Accordingly, finding merit in the Motion for Reconsideration, the same is hereby granted.

The information against accused is hereby dismissed.

The Clerk of Court is hereby directed to return to the accused the cash bonds posted by the latter for their provisional liberty upon presentation of the requisite receipts.

The ruling renders the remaining incidents moot and academic.22Thereafter, on 17 September 2002, the DOJ Secretary, Hernando B. Perez, granted the pending motion of Summerville General Merchandising for reconsideration of the DOJ resolution23dated 28 September 2001, which dismissed the Complaint of movant Summerville General Merchandising in I.S. No. 00A-02396, and accordingly issued another resolution vacating the questioned 28 September 2001 resolution and directing the City Prosecutor of Manila to continue with the criminal prosecution of the Khos for Unfair Competition.

Elidad and Violeta Kho filed a motion for reconsideration of the resolution dated 17 September 2002 before the DOJ. The DOJ,24thru the new Secretary Simeon A. Datumanong denied that double jeopardy lies, in a resolution dated 17 July 2003, declared that:

After an evaluation of the record, we resolve to deny the motion for reconsideration. For double jeopardy to attach, the following requirements must be present: (1) upon a valid indictment; (2) before a competent court; (3) after arraignment; (4) when a valid plea has been entered; and (5) when the defendant was convicted, acquitted, or the case was dismissed or otherwise terminated without the express consent of the accused. (People v. Court of Appeals, 308 SCRA 687). In the instant case, it appears that the case was terminated with the express consent of the respondent, as the criminal case was dismissed upon the express application of the accused. Her action in having the case dismissed constitutes a waiver of her constitutional prerogative against double jeopardy as she thereby prevented the court from proceeding to trial on the merits and rendering a judgment of conviction against her.25At odds with the final DOJ resolution, the RTC of Manila, Branch 1, handling Criminal Case No. 00-183261, held in its Order dated 2 April 2003 that:

Considering the tenors of the orders of dismissal, whatever maybe the merits of the Motion for Reconsideration, revival of the case is now barred by the impregnable wall of double jeopardy.

ACCORDINGLY, the Motion for Reconsideration dated September 10, 2002 filed by the private prosecutor and subject of the Motion to Resolve is hereby denied with finality.

The Clerk of Court is hereby directed to return to the accused the cash bond posted by them for their provisional liberty upon presentation of the required receipts.26Thus, Summerville General Merchandising raised its case to the Court of Appeals, docketed as CA-G.R. SP No. 77180, assailing the Order dated 24 October 2001 of the RTC of Manila, Branch 1, dismissing Criminal Case No. 00-183261, as well as the Orders dated 21 August 2002 and 2 April 2003 of the same court affirming its previous order of dismissal.

In a decision of the Court of Appeals dated 26 May 2004 in CA-G.R. SP No. 77180,27the Court denied due course to the petition of Summerville General Merchandising and affirmed the ruling of the trial court that, indeed, double jeopardy has set in.

The decision of the Court of Appeals in CA-G.R. SP No. 77180 is now the subject of a Petition for Review before this Court, docketed as G.R. No. 163741 entitled, Summerville General Merchandising and Co., Inc. v. Elidad Kho."284) Search Warrant No. 99-1520 before the RTC of Manila, Branch 7Shortly before instituting Criminal Case No. 00-183261 against the Khos, or on 7 January 2000, Summerville General Merchandising applied for the issuance of a search warrant against the Spouses Elidad and Violeta Kho and Roger Kho, since they persisted in manufacturing and selling Chin Chun Su products despite the BFAD order directing them to refrain from doing so. The application was docketed as Search Warrant No. 99-1520 before the RTC of Manila, Branch 7, which was presided over by respondent herein, Judge Enrico A. Lanzanas. A hearing on the application was held on 10 January 200029and the search warrant was issued against Elidad, Violeta and Roger Kho on the same day.30Its enforcement led to the seizure of several Chin Chun Su products.31rbl rl l lbrrOn 17 January 2000, Elidad, Violeta and Roger Kho filed before the RTC of Manila, Branch 7, a motion to quash the search warrant and for the return of the items unlawfully seized. The motion was opposed by Summerville General Merchandising.

In an Order32dated 3 April 2000, the RTC of Manila, Branch 7, denied Elidad and Violeta Kho's motion to quash and to return the seized articles for lack of merit.33Elidad and Violeta Kho filed a motion for reconsideration and motion to transfer the proceedings in RTC of Manila, Branch 7, to RTC of Manila, Branch 1, citing Supreme Court Administrative Order 113-9534designating the RTC of Manila, Branch 1, as an Intellectual Property Court. The RTC of Manila, Branch 7, denied these motions in an Order dated 5 June 2000,35explaining that:

Anent the Motion to Compel this Branch to transfer the case to Branch 1 of this Court, suffice it to say that the cases for violation of Arts. 188 and 189 of the Revised Penal Code (now under the Intellectual Property Law) are those that are already filed in court after the proper preliminary investigation and not cases for application for search warrant involving probable violation of said law. Supreme Court Administrative Circular No. 113-95 itself designates the alluded court or branch thereof to try and decide which clearly excludes cases/applications for search warrant which obviously does not involve trying and deciding case for violation of the Intellectual Property law.

On respondent's Motion for Reconsideration, the Court finds their arguments therein a rehash of the issues and arguments raised in their Motion to Quash.

WHEREFORE, for lack of merit, respondents' Motion for Reconsideration and Motion to Transfer, are hereby DENIED.36Elidad and Violeta Kho filed a Petition forCertiorariand Preliminary Mandatory Injunction,37docketed as CA-G.R. SP No. 60084, before the Court of Appeals questioning the aforementioned Orders of the RTC of Manila, Branch 7. A decision dated 6 August 200138was rendered by the Court of Appeals denying the petition. It upheld Search Warrant No. 99-1520 as having been validly issued and properly executed and, thus, there is no basis for the return of the goods seized. A motion for reconsideration filed by the Khos was denied by the Court of Appeals in an Order dated 16 November 2001.39Elidad and Violeta Kho filed a supplement to their Motion for Reconsideration dated 20 November 200140before the Court of Appeals in CA-G.R. SP No. 60084, reiterating their prayer for the quashal of Search Warrant No. 99-1520 and the return of the seized items. The Court of Appeals, in a resolution dated 4 December 2001,41merely noted the motion in view of its earlier resolution rendered on 16 November 2001 already denying Elidad and Violeta Kho's Motion for Reconsideration.

Pained by the decisions and orders of the trial court and appellate court, petitioners Elidad and Violeta Kho filed the present petition praying that the decision of the Court of Appeals in CA-G.R. SP No. 60084 dated 6 August 2001 be reversed and set aside, and a new decision be issued granting the quashal of Search Warrant No. 99-1520 and ordering the return of the items unlawfully seized.42In their Memorandum, petitioners raise the following issues for resolution:

WHETHER OR NOT THE COURT OF APPEALS ERRED IN DISREGARDING THE WITHDRAWAL OF THE INFORMATION FOR UNFAIR COMPETITION AGAINST THE PETITIONERS IN BRANCH 1 OF RTC-MANILA AS A RESULT OF THE RESOLUTION OF THE DEPARTMENT OF JUSTICE FINDING NO PROBABLE CAUSE.

WHETHER OR NOT THE COURT OF APPEALS ERRED IN FINDING THAT NO GRAVE ABUSE OF DISCRETION WAS COMMITTED BY HONORABLE JUDGE ENRICO LANZANAS IN FINDING THAT PROBABLE CAUSE EXISTED AGAINST THE PETITIONERS FOR THE ISSUANCE OF SEARCH WARRANT NO. 99-1520.

WHETHER OR NOT THE COURT OF APPEALS ERRED IN FINDING THAT BRANCH 7 OF THE REGIONAL TRIAL COURT OF MANILA HAD JURISDICTION TO ISSUE SEARCH WARRANT NO. 99-1520.

WHETHER OR NOT THE COURT OF APPEALS ERRED IN FINDING THAT NO GRAVE ABUSE OF DISCRETION WAS COMMITTED BY HONORABLE JUDGE ENRICO LANZANAS IN RULING THAT SEARCH WARRANT NO. 99-1520 WAS LAWFULLY EXECUTED.

WHETHER OR NOT THE COURT OF APPEALS ERRED IN FINDING THAT NO GRAVE ABUSE OF DISCRETION WAS COMMITTED BY HONORABLE JUDGE ENRICO LANZANAS IN NOT ORDERING THE RETURN OF THE ITEMS SEIZED UNDER SEARCH WARRANT NO. 99-1520.43The petition is devoid of merit.

As to the first issue, it must be noted that the dismissal of Criminal Case No. 00-183261 by the RTC of Manila, Branch 1, was initially by virtue of the resolution of the DOJ dated 28 September 200144ordering the dismissal of the criminal case for unfair competition.

This order of dismissal, however, was again set aside by the DOJ in its resolution dated 17 September 200245directing that appropriate information for Unfair Competition be filed against the Khos. The motion for reconsideration of Elidad and Violeta Kho was denied by the DOJ in its resolution dated 17 July 2003.46This is the latest existing resolution of the DOJ on the matter, dated 17 July 2003, which affirmed the resolution of the then DOJ Secretary Hernando B. Perez directing the City Prosecutor of Manila to file the appropriate information against Elidad and Violeta Kho for Unfair Competition as defined and penalized under Section 168.3(a), in relation to Sections 168 and 170 of Rep. Act No. 8293 or The Intellectual Property Code of the Philippines. Therefore, at the time of the dismissal of Criminal Case No. 00-183261 by the RTC of Manila, Branch 1, on 24 October 2001, the DOJ resolution on I.S. No. 00A-02396 on which Criminal Case No. 00-183261 is based has not been writtenfinisas yet.

Taking into consideration these circumstances, the Court of Appeals did not err in affirming the Order of the RTC of Manila, Branch 7, denying the motion to quash filed by the herein petitioners because, subsequently, the DOJ still ordered the filing of charges against Elidad and Violeta Kho.

As to whether the RTC of Manila, Branch 1, properly dismissed the criminal case against the Khos despite the resolution of the DOJ ordering their criminal prosecution, we cannot dwell more on the issue because it is already the subject of G.R. No. 163741 before another division of this Court.

Issues two, three and four, on the other hand, boil down to the central issue of whether or not the Court of Appeals erred in upholding the RTC of Manila, Branch 7, in its findings of probable cause to issue a search warrant. Also resting on how we shall resolve the foregoing issue is the fifth and last issue in the Petition at bar which questions the refusal by both the Court of Appeals and the RTC of Manila, Branch 7, to return the seized items.

The issuance of Search Warrants is governed by Rule 126 of the Revised Rules of Court reproduced below:

SECTION 1. Search warrant defined. - A search warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court.

SEC. 2.Court where application for search warrant shall be filed.- An application for search warrant shall be filed with the following:

a) Any court within whose territorial jurisdiction a crime was committed.

b) For compelling reasons stated in the application, any court within the judicial region where the crime was committed if the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be enforced.

However, if the criminal action has already been filed, the application shall only be made in the court where the criminal action is pending.

SEC. 3. Personal property to be seized. - A search warrant may be issued for the search and seizure of personal property:

(a) Subject of the offense;

(b) Stolen or embezzled and other proceeds or fruits of the offense; or

(c) Used or intended to be used as the means of committing an offense.

SEC. 4. Requisites for issuing search warrant. - A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines.

SEC.5. Examination of complainant; record. - The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements together with the affidavits submitted.

SEC. 6. Issuance and form of search warrant. - If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed by these Rules.

What constitutes "probable cause" is well settled. In Microsoft Corporation v. Maxicorp, Inc.,47we defined probable cause as follows:

Probable cause means "such reasons, supported by facts and circumstances as will warrant a cautious man in the belief that his action and the means taken in prosecuting it are legally just and proper." Thus, probable cause for a search warrant requires such facts and circumstances that would lead a reasonably prudent man to believe that an offense has been committed and the objects sought in connection with that offense are in the place to be searched.

The determination of probable cause does not call for the application of rules and standards of proof that a judgment of conviction requires after trial on the merits. As implied by the words themselves, "probable cause" is concerned with probability, not absolute or even moral certainty. The prosecution need not present at this stage proof beyond reasonable doubt. The standards of judgment are those of a reasonably prudent man, not the exacting calibrations of a judge after a full-blown trial.

No law or rule states that probable cause requires a specific kind of evidence. No formula or fixed rule for its determination exists. Probable cause is determined in the light of conditions obtaining in a given situation. xxx

In Columbia Pictures, Inc. v. Court of Appeals,48we explained further that:

Although the term "probable cause" has been said to have a well-defined meaning in the law, the term is exceedingly difficult to define, in this case, with any degree of precision; indeed, no definition of it which would justify the issuance of a search warrant can be formulated which would cover every state of facts which might arise, and no formula or standard, or hard and fast rule, may be laid down which may be applied to the facts of every situation. As to what acts constitute probable cause seem incapable of definition. There is, of necessity, no exact test.

At best, the term "probable cause" has been understood to mean a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged; or the existence of such facts and circumstances as would excite an honest belief in a reasonable mind acting on all the facts and circumstances within the knowledge of the magistrate that the charge made by the applicant for the warrant is true.

Probable cause does not mean actual and positive cause, nor does it import absolute certainty. The determination of the existence of probable cause is not concerned with the question of whether the offense charged has been or is being committed in fact, or whether the accused is guilty or innocent, but only whether the affiant has reasonable grounds for his belief. The requirement is less than certainty or proof, but more than suspicion or possibility.

In Philippine jurisprudence, probable cause has been uniformly defined as such facts and circumstances which would lead a reasonable, discreet and prudent man to believe that an offense has been committed, and that the objects sought in connection with the offense are in the place sought to be searched. It being the duty of the issuing officer to issue, or refuse to issue, the warrant as soon as practicable after the application therefor is filed, the facts warranting the conclusion of probable cause must be assessed at the time of such judicial determination by necessarily using legal standards then set forth in law and jurisprudence, and not those that have yet to be crafted thereafter.

We also declared in People v. Chiu,49citingMalaloan v. Court of Appeals,50that a search warrant is merely a judicial process designed by the Rules to respond only to an incident in the main case, if one has already been instituted, or in anticipation thereof.

It bears repeating that the proceedings before the RTC of Manila, Branch 7, was solely for the issuance of Search Warrant No. 99-1520, while the main case against Elidad and Violeta Kho for violation of The Intellectual Property Code was instituted only later on as Criminal Case No. 00-183261 before the RTC of Manila, Branch 1. What is before us in the Petition at bar is the validity of the search warrant issued in the proceedings in Search Warrant No. 99-1520.

A perspicacious examination of the records reveal that the RTC of Manila, Branch 7, followed the prescribed procedure for the issuance of Search Warrant No. 99-1520, namely, (1) the examination under oath or affirmation of the Complainant and his witnesses and, in this case, Judge Enrico A. Lanzanas personally examined complainant-policewoman SPO4 Nedita Alvario Balagbis, and Mr. Victor Chua, the representative/officer of Summerville General Merchandising, at the hearing on the application for Search Warrant No. 99-1520 held on 10 January 2000; (2) an examination personally conducted by then Presiding Judge Lanzanas, in the form of searching questions and answers, in writing and under oath, of the complainant and witnesses on facts personally known to them; and (3) the taking of sworn statements, together with the affidavits submitted, which were duly attached to the records.51In determining probable cause in the issuance of a search warrant, the oath required must refer to the truth of the facts within the personal knowledge of the applicant or his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause.52From the affidavit dated 7 January 2000 of SPO4 Nedita Balagbis, in support of the application for search warrant, she stated that Summerville General Merchandising represented by Mr. Victor Chua sought the assistance of their police station in connection with the proliferation of fake Chin Chun Su products. With Victor Chua, they made a surveillance of two places, namely 2407 Topacio Street and 2412 Raymundo Street both in San Andres, Manila. Through this, they were able to verify that plastic containers were being labeled with Chin Chun Su stickers filled with cream at 2407 Topacio Street. On the other hand, in the affidavit dated 7 January 2000 of Victor Chua, he stated that Summerville General Merchandising, being the exclusive importer, distributor and dealer of Chin Chun Su products received reliable information that persons going by the name of Elidad, Violeta and Roger Kho were engaged in the illegal manufacture and sale of these products. From the surveillance conducted with the help of SPO4 Balagbis, they saw a tricycle full of containers taken to a house at 2412 Raymundo Street, San Andres, Manila. It was at this address that Chin Chun Su stickers were being affixed. The containers were thereafter taken to 2407 Topacio Street to be filled with the cream product.

Clearly, probable cause existed for the issuance of the warrant as shown by the affidavits of the above affiants who had personal knowledge of facts indicating that an offense involving violation of intellectual property rights was being committed and that the objects sought in connection with the offense are in the place sought to be searched. The surveillance conducted by SPO4 Nedita Balagbis on the basis of reliable information that Elidad, Violeta and Roger Kho were engaged in the illegal manufacture and sale of fake Chin Chun Su products enabled her to gain personal knowledge of the illegal activities of the Khos.53This fact was sufficient justification for the examining judge, in this case Judge Lanzanas, to conclude that there was probable cause for the issuance of the search warrant.

At the hearing conducted by Judge Lanzanas, SPO4 Nedita Balagbis and Victor Chua testified on the affidavits they separately executed, and essentially stated therein upon inquiry by Judge Lanzanas that indeed several fake Chin Chun Su products were loaded to a tricycle and brought to a warehouse in Topacio Street.

In People v. Tee,54this Court held that:

It is presumed that a judicial function has been regularly performed, absent a showing to the contrary.A magistrate's determination of probable cause for the issuance of a search warrant is paid great deference by a reviewing court, as long as there was substantial basis for that determination. Substantial basis means that the questions of the examining judge brought out such facts and circumstances as would lead a reasonably discreet and prudent man to believe that an offense has been committed, and the objects in connection with the offense sought to be seized are in the place sought to be searched.

We cannot find any irregularity or abuse of discretion on the part of Judge Lanzanas for issuing the assailed search warrant. On the contrary, we find that he had complied with the procedural and substantive requirements for issuing a search warrant. We are, therefore, bound to respect his finding of probable cause for issuing Search Warrant No. 99-1520.

After declaring that Search Warrant No. 99-1520 was validly issued by the RTC of Manila, Branch 7, then there is no reason for us to order the return of the articles seized by virtue thereof.

WHEREFORE, the Decision of the Court of Appeals dated 6 August 2001 and Resolution dated 16 November 2001, denying the quashal of Search Warrant No. 99-1520 and the return of the seized items, are hereby AFFIRMED. Costs against petitioners.

[G.R. No. 132389. November 19, 2002.]PEDRO CUPCUPIN,Petitioner, v. PEOPLE OF THE PHILIPPINES,Respondent.This is a petition for review oncertiorari, seeking to set aside the November 27, 1997 decision of the Court of Appeals, 1 in CA-G.R. CR No. 17334, which affirmed with modification the November 18, 1994 decision 2 of the Regional Trial Court of Malabon, Branch 170, wherein petitioner Pedro Cupcupin was found guilty of the crimes of violation of Section 16, Article III, Republic Act 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended, and of violation of Section 1, Presidential Decree 1866, otherwise known as the Unlawful Possession of Firearms and Ammunition, in Criminal Case No. 13374-MN and Criminal Case No. 13375-MN 5784, respectively.

The Informations filed against petitioner read:chanrob1es virtual 1aw library

In Criminal Case No. 13374-MN for violation of Section 16, Article III, Republic Act 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended:chanrob1es virtua1 1aw 1ibrary

That on 05 March 1993 in Malabon and within the jurisdiction of this Honorable Court, the above-named accused did then and there wilfully, unlawfully and feloniously possess approximately 38.2085 grams of methamphetamine hydrochloride, popularly known as "shabu", a regulated drug, without the corresponding license or prescription therefor.

CONTRARY TO LAW. 3

In Criminal Case No. 13375-MN for violation of Section 1, Presidential Decree 1866, otherwise known as the Unlawful Possession of Firearms and Ammunition:chanrob1es virtual 1aw library

That on 05 March 1993 in Malabon and within the jurisdiction of this Honorable Court, the above-named accused did then and there wilfully, unlawfully and feloniously have custody, control and possession of:chanrob1es virtual 1aw library

one (1) M16 Baby Armalite rifle with defaced serial no. and fully loaded magazineone (1) Browning pistol without serial no. with fully loaded magazinetwo (2) empty magazine for Armalite without lawful authority therefore.

CONTRARY TO LAW. 4

Upon arraignment on August 5, 1993, petitioner pleaded not guilty. Trial on the merits thereafter ensued. 5

The version of the prosecution can be synthesized as follows: Based on a confidential information that petitioner, Pedro Cupcupin is engaged in selling methamphetamine hydrochloride (shabu), and in possession of firearms and ammunitions without the necessary license, NBI Agent Timoteo Rejano of the National Capital Region, conducted a surveillance on the vicinity of petitioners residence at Int. David Santos, C. Arellano Streets, Malabon, Metro Manila. After confirming said confidential information, Agent Rejano applied for the issuance of search warrants before Judge Romeo J. Callejo, 6 of the Regional Trial Court of Manila, Branch 49. 7

On March 3, 1993, Judge Romeo J. Callejo issued the following search warrants:chanrob1es virtual 1aw library

PEOPLE OF THE PHILIPPINES, Plaintiff, SEARCH WARRANT NO. 56-93

- versus -

FOR: VIOLATION OF SECTION 16PEDRO CUPCUPIN ARTICLE III, of REPUBLIC

Int. David Santos, C. Arellano ACT 6425, AS AMENDEDStreet, Malabon, MetroManila

Accused.x ------------------------------------- xSEARCH WARRANT

TO ANY PEACE OFFICER:chanrob1es virtual 1aw library

Upon sufficient showing of the existence of probable cause, after determination personally by the Judge on examination under oath of the applicant and his witness by means of searching questions and answers thereto, based on the facts personally known to them that Respondent Pedro Cupcupin residing at said address, had been and still is using the said premises, for the possession and/or use of regulated substance known as methamphetamine hydrochloride (SHABU) in violation of section 16 of Republic Act 6425, as amended.

WHEREFORE, the Court commands you to conduct an immediate search, at any time of the day or night, including Saturdays and Sundays, on the premises at the above address, including the rooms located therein, and seize the following:jgc:chanrobles.com.ph

"UNDETERMINED QUANTITY OF METAMPHETAMINE HYDROCHLORIDE (SHABU)"and to bring the same before the Court for proper disposition in accordance with law. You shall make a return of the warrant to the Court within ten (10) days from today. SO ORDERED. 8

PEOPLE OF THE PHILIPPINESPlaintiff, SEARCH WARRANT NO. 57-93- versus -FOR: VIOLATION OFPEDRO CUPCUPIN PRESIDENTIAL DECREE 1866

Int. David Santos, C. Arellano (SECTION 1)Street, Malabon, MetroManila

Accused.x ------------------------------------- x

SEARCH WARRANT

TO ANY PEACE OFFICER:chanrob1es virtual 1aw library

Upon sufficient showing of the existence of probable cause, after determination personally by the Judge on examination under oath of the applicant and his witness by means of searching questions, and answers thereto, based on the facts personally known to them, that Accused Pedro Cupcupin residing at said address, had been and still in possession of assorted firearms herein below listed, without the requisite license therefore, in violation of Presidential Decree No. 1866.

WHEREFORE, the Court commands you to conduct an immediate search, at any time of the day and night, including Saturdays, on the premises at the above address including the rooms located therein and seize the following:chanrob1es virtual 1aw library

a) Two (2) .45 cal. pistols;b) One (1) .38 cal. revolver;c) One (1) .9 mm. pistol;d) Two (2) M-16 armalite rifles; ande) One (1) .22 cal. pistol

and bring the same before the Court for proper disposition in accordance with law.

You shall make a return of the warrant to the Court within ten (10) days from today. SO ORDERED.

On March 5, 1993, at about 7 a.m., the team composed of Supervising Agent Eduard Villarta, NBI agents Timoteo Rejano, Ruel Lasala, Narciso Pea, Jr., Joel Consador, Ceres Delapa-Cabrera, Ernesto Cabrera and Special Investigators Arthur Oliveros and Ariel Nuez and SPO1 Olazo, raided the house of petitioner located at Int. David Santos and C. Arellano Streets, Malabon, Metro Manila, 10 which consisted of a 2-storey house made up of strong materials and a workshop room at the ground floor made up of light materials. 11

The NBI agents presented the search warrants and introduced themselves to the petitioner and his wife, Adelfa Cupcupin. Upon their request, the NBI agents waited for petitioners mother, Iluminada Cupcupin and in their presence, the team searched the bedroom at the second floor and found a fully-loaded M16 armalite rifle underneath the bed. They likewise found a semi-automatic browning pistol and two empty magazines of armalite inside a drawer of a table found in the same bedroom. Agents Rejano and Consador inscribed their respective initials and date on the handle of the rifle and the pistol. 12 An Inventory of the items seized was thereafter signed by Adelfa Cupcupin, Elumina Cupcupin, and the petitioner. 13

Thereafter, the team searched the workshop room, again in the presence of petitioner, his wife, and his mother. 14 Seized from petitioners workshop room were the following: "1) nine (9) plastic packs of white crystalline substance found inside a box [of] ETERNITY; 2) one improvised water pipe; 3) one (1) improvised burner; 4) one (1) weighing scale marked `TAVITA; 5) three (3) small tooters; 6) one pack of plastic pouches; 7) one electric resealer; 8) aluminum foils; 9) five (5) assorted magazines for pistols; 10) one (1) rifle grenade; 11) assorted bullets for M16, .45 cal and 9 mm." 15 An inventory of the items seized was prepared and thereafter signed and acknowledged by Adelfa Cupcupin, Elumina Cupcupin, and the petitioner. 16

Upon examination by NBI Forensic Chemist Aida R. Viloria-Magsipoc, the nine plastic packs of white crystalline substance seized from the workshop room of petitioner, turned out to be 38.0201 grams of Methamphetamine Hydrochloride, popularly known as shabu. 17

Petitioner, on the other hand, raised the defense of frame-up. He alleged that between 6:00 to 7:00 in the morning of March 5, 1993, while he was resting at the ground floor of his house in the company of his wife, Adelfa Cupcupin and their two children, the team of NBI agents arrived. They searched his house and detained him and his family at the ground floor. He denied ownership and possession of the illegal items allegedly seized from his house but admitted ownership of the automatic browning pistol found in his bedroom. He produced a Certification from the PNP Firearms and Explosive Division showing that said browning, cal. 9mm pistol with Serial No. 245PZ84617 is registered in his name. 18 After the search and while in handcuffs, he was forced to sign some documents which turned out to be an inventory receipt and a search warrant. 19

Petitioner further declared that the charges against him are purely harassment because in 1991 he had been previously charged, but was subsequently acquitted of illegal possession of regulated drugs and firearms in Criminal Case Nos. 10108-MN and 10109-MN, respectively, before Branch 72, of the Regional Trial Court of Malabon. 20

On November 18, 1994, a decision was rendered by the trial court convicting petitioner, to wit:chanrob1es virtual 1aw library

WHEREFORE, in view of all the foregoing, judgment is hereby rendered as follows:chanrob1es virtual 1aw library

1. In Criminal Case No. 13374, finding accused Pedro Cucupin guilty beyond reasonable doubt of Violation of Section 16, Article III, Republic Act 6425, as further amended by Republic Act 7659 and considering the quantity of the Methamphetamine Hydrochloride involved in this case, hereby sentences him to suffer an indeterminate penalty of One (1) Year, Eight (8) Months and Twenty (20) Days as minimum, to Four (4) Years, Two (2) Months and One (1) Day as maximum, & to pay the cost;

2. In Criminal Case No. 13375, finding accused Pedro Cupcupin guilty beyond reasonable doubt of Violation of Presidential Decree No. 1866, hereby sentences him to suffer an indeterminate penalty of Seventeen (17) Years, Four (4) Months and One (1) Day as minimum, to Eighteen (18) Years, Eight (8) Months and One (1) Day as maximum, and to pay the cost of this suit.

The unlicensed M16 baby armalite, magazines, assorted ammunitions, methamphetamine hydrochloride and the paraphernalia presented as evidence are all forfeited in favor of the government, and the Branch Clerk of Court is directed to turn over the same to the PNP Firearms and Explosive Office and Dangerous Drugs Board for proper disposition.

The 9mm automatic pistol is hereby ordered returned to accused Pedro Cupcupin. SO ORDERED. 21

On appeal, the judgment of conviction was affirmed, but modified as to the penalties, to wit:chanrob1es virtual 1aw library

WHEREFORE, the decision subject of this appeal is AFFIRMED with modifications as to the penalties imposed:chanrob1es virtual 1aw library

(1) In Criminal Case No. 13374-MN for violation of R.A. No. 6425,Accused-appellant is sentenced to suffer the indeterminate penalty of imprisonment of Six (6) Months of arresto mayor, as minimum, to Four (4) Years and Two (2) Months of prision correccional, as minimum.

(2) In Criminal Case No. 13375-MN for violation of P.D. No. 1866,Accused-appellant shall suffer an indeterminate penalty of imprisonment of Six (6) Years of prision correccional, as minimum, to Eight (8) Years of prision mayor, as maximum, and to pay a fine of thirty thousand pesos (P30,000.00). SO ORDERED. 22

Hence, the instant petition raising the following errors:chanrob1es virtual 1aw libraryITHE HON. COURT OF APPEALS SERIOUSLY ERRED IN NOT HOLDING THAT THE SEARCH WARRANTS WERE LEGALLY AND CONSTITUTIONALLY INFIRM, INVALID AND VOID, THEY NOT HAVING COMPLIED WITH THE INDISPENSABLE REQUIREMENTS FOR THE ISSUANCE THEREOF.IITHE HON. COURT OF APPEALS GRAVELY ERRED IN GIVING FULL FAITH AND CREDENCE TO THE WITNESSES OF THE PROSECUTION DESPITE THE FACT THAT THE WITNESSES, WHO WERE NBI AGENTS, WERE ACTUATED WITH MALICE, IMPROPER MOTIVE AND COMMITTED IRREGULAR ACTS IN SECURING AND IMPLEMENTING THE AFOREMENTIONED SEARCH WARRANTS.IIITHE HON. COURT OF APPEALS GRAVELY ERRED IN NOT GIVING WEIGHT AND PROBATIVE VALUE TO THE EARLIER JOINT DECISION OF THE TRIAL COURT ACQUITTING THE ACCUSED FOR THE OFFENSES OF VIOLATION OF SEC. 15 OF THE DANGEROUS DRUGS ACT AND VIOLATION OF P.D. 1866, WHICH ARE THE SAME OFFENSES NOW SUBJECT OF THE INSTANT CASES AND WHEREIN THE PETITIONER HAD BEEN CONVICTED BY THE TRIAL COURT AND AFFIRMED BY THE HON. COURT OF APPEALS.IVTHE HON. COURT OF APPEALS SERIOUSLY ERRED IN NOT ACQUITTING THE ACCUSED-PETITIONER OF THE OFFENSES CHARGED, THE SAME NOT HAVING BEEN PROVED BEYOND REASONABLE DOUBT. 23

Petitioner contends that the items allegedly seized from his residence are inadmissible as evidence because the search warrants issued against him failed to comply with the constitutional and statutory requirements for the issuance of a valid search warrant. Specifically, petitioner claims that said warrants were defective on the grounds that: (1) NBI Agent Timoteo Rejano who applied for the issuance thereof had no personal knowledge of the facts on which the warrants were based; and (2) subject warrants failed to particularly describe the place to be searched because there are two houses located in the address stated in the said warrants.

The contentions are without merit.

Sections 2 and 3 (2), Article III, of the Constitution state:chanrob1es virtual 1aw library

SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

SEC. 3. . . .(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

Under Sections 4 and 5, Rule 126, of the Revised Rules on Criminal Procedure, the requisites for the issuance of a valid search warrant are as follows:chanrob1es virtual 1aw library

SEC. 4. Requisites for issuing search warrant. A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witness he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines. (3a)

SEC. 5. Examination of complainant, record. The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted. (4a)

In determining probable cause in the issuance of a search warrant, the oath required must refer to the truth of the facts within the personal knowledge of the applicant or his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual, making the affidavit and seeking the issuance of the warrant, of the existence of probable cause. Search warrants are not issued on loose, vague or doubtful basis of fact, nor on mere suspicion or belief. 24

In the case at bar, NBI Agent Timoteo Rejano who applied for the issuance of Search Warrant Nos. 56-93 and 57-93, had personal knowledge of the circumstances on which the warrants were based. Admittedly, Rejanos knowledge of petitioners illegal possession of firearms and prohibited drugs came from a confidential informant, and therefore, initially hearsay. Nevertheless, the surveillance and investigation he conducted on the basis of said confidential information enabled him to gain personal knowledge of the illegal activities of petitioner. 25 Hence, his testimony was sufficient justification for the examining judge to conclude that there was probable cause for the issuance of a search warrant.

Contrary to the claim of petitioner, the records show that there is only one house located in the address to be searched. The residence of petitioner consisted of a structure with two floors, made up of strong materials and a workshop room at the ground floor made up of light materials. The unrebutted testimony of the prosecution witnesses reveal that inside the main house is an alley connected to the door of the workshop room. Pertinent portion of the testimony of NBI Agent Consador, one of the members of the raiding team, reads:chanrob1es virtual 1aw library

Court (witness)

Q Where is the house of the accused located?A It is located at the corner of Arellano St., Your Honor.Q Malabon?A Yes, Your Honor.Q Is there a number in the house of the accused?A I cannot recall, Your Honor.Q How many structures are there in the premises of Pedro Cupcupin?A As I remember, there are two structures but it looks like they are adjacent, one big and the other one like nipa hut but they are adjacent, Your Honor.Q What do you mean adjacent?A The small structure is connected to the big structure, Your Honor.Q When you say connected, will you tell the court what do you mean.A When you enter the structure, there is a door that can be opened at the small structure, Your Honor.Q Without going outside of the house?A Yes, Your Honor.Q Do we understand from you that there is a connecting alley inside the bigger structure going to the small structure?A Yes, Your Honor.Q These two structures belong to Pedro Cupcupin?A Yes, Your Honor.Likewise relevant is the testimony of Agent Rejano, thus:chanrob1es virtual 1aw libraryA We go back now to the two buildings which you said in your own opinion is only one. I am showing to you the picture which was taken by your photographer, is this the scenario of the place where [the] two buildings depicted in the picture marked as Exhibit "N" ? A two stor[e]y house is depicted at the left hand portion of Exhibit "M" that would be the house you are alluding to as the house which you first entered the second floor despite the fact that you will pass the ground floor that is the building you are alluding in that statement of yours or testimony of yours a while ago?

A Yes, sir.Q How about a structure depicted at the right hand portion in between the two vehicles, is it part also of the residence of Cupcupin?A It is part of the residence and while inside the edifice there is no divider, sir.Q You will agree with me Mr. witness that despite the fact that there is no division, two vehicles were parked in between the two structures, one jeep and a passenger jeep. My question is, you will agree with me that despite the fact [that] there was no division, two structures were clearly depicted in Exhibit "N" ?A As I have said in my observation, there is only one structure because in between seemingly two structures, there is a corridor connecting the two structures. While inside the said edifice, there is only one structure, sir.

It is clear from the foregoing that the workshop room where the packs of shabu were found is actually an integral part of petitioners residence. Hence, it cannot be argued that there are two houses in the address stated in the warrants and that the same failed to particularly describe the place to be searched. The rule is that a description of the place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended to be searched. Tested against the foregoing rule, the Court finds that the residence of petitioner stated in the warrants as "Int. David Santos, C. Arellano Street, Malabon, Metro Manila," can with reasonable effort be ascertained and identified by the NBI agents who were ordered to search the." . . above address, including the rooms located therein." 28

It must be stressed that petitioner does not deny ownership, access to and more importantly, immediate physical occupancy and control over said workshop room and his entire residence. As a matter of law, when prohibited and regulated drugs 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 drugs in the building owned by petitioner raised the presumption of knowledge and, standing alone, was sufficient to convict. 29

It may be argued that in the cases of illegal possession of regulated drugs and firearms filed against petitioner in 1991, in Criminal Case Nos. 10108-MN and 10109-MN, respectively, before Branch 72, of the Regional Trial Court of Malabon, the trial court found that the "nipa hut" near the house of petitioner is owned by a certain Benjamin Santos. 30 But since it was not shown that said "nipa hut" is the same workshop room referred to in the present case, and that the factual circumstances on which the finding that subject "nipa hut" is not owned by petitioner, still holds true in the instant case, the Court cannot rule that there are indeed two houses in the address stated in the search warrants issued against petitioner. At any rate, it is not the ownership of the place where the illegal items were seized that matters. What is decisive is that, it is the petitioner who had access to and control over said workshop room being an integral part of his house.

In criminal cases involving prohibited drugs, there can be no conviction unless the prosecution shows that the accused knowingly possessed the prohibited articles in his person, or that animus possidendi is shown to be present together with his possession or control of such article. 31 Animus possidendi is only prima facie. It is subject to contrary proof and may be rebutted by evidence that the accused did not in fact exercise power and control over the thing in question, and did not intend to do so. The burden of evidence is thus shifted to the possessor to explain absence of animus possidendi. 32

In the instant case, petitioner failed to present any evidence to rebut the existence of animus possidendi over the armalite rifle and the packs of shabu found in his residence. The mere uncorroborated statement that he was not aware of the existence of said illegal items in his house is insufficient. 33 Moreover, the defense of "frame-up" raised by petitioner is a common and standard line of defense which is invariably, viewed by this Court with disfavor, it being capable of easy concoction and difficult to prove. Considering that no clear and convincing evidence was presented to prove that he was really framed up, the presumption of regularity in the performance of official duty, as well as the principle that findings of the trial court on the credibility of witnesses are entitled to great respect, must prevail over the petitioners imputation of ill-motive and harassment on the part of the NBI Agents who conducted the search. 34

For the crime of illegal possession of regulated drugs, the Court of Appeals correctly deleted the excess of 1 day in the maximum penalty imposed by the trial court, i.e., four (4) years, two (2) months, and one (1) day of prision correctional. In People v. Medenilla, 35 the Court held that if the regulated drug weighs less than 66.67 grams, then the penalty is prision correctional, if 66.67 grams or more but less than 133.33 grams, then the penalty is prision mayor, and if 133.33 grams or more, but less than 200 grams, then the penalty is reclusion temporal. Considering that, 38.0201 grams of Methamphetamine Hydrochloride, or shabu is involved in the case at bar, the proper penalty is prision correctional. There being no attendant modifying circumstance the maximum period of the imposable penalty, cannot exceed two (2) years, four (4) months and one (1) day to four (4) years and two (2) months, the medium period of prision correctional. Applying the Indeterminate Sentence Law, the minimum period of the imposable penalty shall be within the range of arresto mayor (1 month and 1 day to 6 months), the penalty next lower in degree to prision correctional.

Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act 2002, increased the penalty for illegal possession of 10 grams or more but less than 50 grams of methamphetamine hydrochloride or "shabu" to life imprisonment and a fine ranging from four hundred thousand pesos (P400,000.00) to five hundred thousand pesos (P500,000.00). However, said law not being favorable to the accused, cannot be given retroactive application in the instant case.

Under Republic Act 8294, amending P.D. No. 1866, the penalty for illegal possession of firearms classified as high powered, like an M16 armalite rifle, 36 is prision mayor minimum and a fine of P30,000.00. No modifying circumstance having been proven, the penalty shall be imposed in its medium period. 37 Applying the Indeterminate Sentence Law, the maximum period of the imposable penalty cannot exceed the medium period of prision mayor minimum, i.e., six (6) years, eight (8) months and one (1) day to seven (7) years and four (4) months. The Court of Appeals therefore erred in fixing the maximum period of the imposable penalty to eight (8) years of prision mayor. The minimum period shall be within the range of prision correccional in its maximum period (4 years, 2 months and 1 day to 6 years), the penalty next lower in degree to prision mayor minimum.

WHEREFORE, in view of all the foregoing, the November 27, 1997 decision of the Court of Appeals in CA-G.R. CR No. 17334, finding petitioner Pedro Cupcupin guilty beyond reasonable doubt of the crimes of illegal possession of regulated drugs and illegal possession of firearm is AFFIRMED with MODIFICATIONS. As modified, petitioner is sentenced to suffer: (1) the indeterminate penalty of imprisonment ranging from six (6) months of arresto mayor, as minimum, to four (4) years and two (2) months, of prision correccional, as maximum in Criminal Case No. 13374-MN, for illegal possession of regulated drugs under Section 16, of R.A. No. 6425, as amended by R.A. No. 7659; and (2) the indeterminate penalty of imprisonment ranging from six (6) years of prision correccional, as minimum, to seven (7) years and four (4) months of prision mayor, as maximum, and to pay a fine of P30,000.00 for illegal possession of firearm under Section 1, of P.D. No. 1866, as amended by R.A. No. 8294, in Criminal Case No. 13375-MN.

[G.R. NO. 139301 : September 29, 2004]PEOPLE OF THE PHILIPPINES,Appellee,v.HUANG ZHEN HUA and JOGY LEE,Appellants.

This is an appeal from the Decision1of the Regional Trial Court (RTC) of Paraaque City, Metro Manila, Branch 259, convicting the appellants of violation of Section 16, Article III of Republic Act No. 6425, as amended.

The Case for the ProsecutionPolice operatives of the Public Assistance and Reaction Against Crime (PARAC) under the Department of Interior and Local Government received word from their confidential informant that Peter Chan and Henry Lao,2and appellants Jogy Lee and Huang Zhen Hua were engaged in illegal drug trafficking. The policemen also learned that appellant Lee was handling the payments and accounting of the proceeds of the illegal drug trafficking activities of Lao and Chan.3PO3 Belliardo Anciro, Jr. and other police operatives conducted surveillance operations and were able to verify that Lao and appellant Lee were living together as husband and wife. They once spotted Chan, Lao, the appellants and two others, in a seafood restaurant in Bocobo Street, Ermita, Manila, late in the evening. On another occasion, the policemen saw Chan, Lao, and the appellants, at the Celicious Restaurant along R. Sanchez Street, Ermita, Manila, at about 8:30 p.m. They were spotted the third time at the Midtown Hotel at about 7:00 p.m. to 8:00 p.m.4The police operatives also verified that Chan and Lao resided at Room Nos. 1245 and 1247, Cityland Condominium, De la Rosa Street, Makati City, and in a two-storey condominium unit at No. 19 Atlantic Drive, Pacific Grand Villa, Sto. Nio, Paraaque, Metro Manila.5On October 25, 1996, SPO2 Cesar N. Teneros of the PARAC secured Search Warrant No. 96-801 for violation of Presidential Decree (P.D.) No. 1866 (illegal possession of firearms and explosives) and Search Warrant No. 96-802, for violation of Sections 12, 14 and 16 of Rep. Act No. 6425, as amended, from Judge William M. Bayhon, Executive Judge of the RTC of Manila.6Senior Police Inspector Lucio Margallo supervised the enforcement of Search Warrant No. 96-801 at the Cityland Condominium at about 11:00 p.m. on October 29, 1996. With him were PO3 Anciro, Jr., PO3 Wilhelm Castillo, SPO3 Roger Ferias and seven other policemen of the PARAC, who were all in uniform, as well as a Cantonese interpreter by the name of Chuang. While no persons were found inside, the policemen found two kilos of methamphetamine hydrochloride, popularly known as shabu, paraphernalia for its production, and machines and tools apparently used for the production of fake credit cards.7Thereafter, the police operatives received information that Lao and Chan would be delivering shabu at the Furama Laser Karaoke Restaurant at the corner of Dasmarias and Mancha Streets, Manila. The policemen rushed to the area on board their vehicles. It was 2:00 a.m. of October 26, 1996. The policemen saw Chan and Lao on board the latter's Honda Civic car. As the two men alighted, one of the men approached them and introduced himself, but Chan and Lao fired shots. Thus, a shoot-out ensued between the members of the raiding team and the two suspects. Chan and Lao were shot to death during the encounter. The policemen found two plastic bags, each containing one kilo of shabu, in Lao's car.

The policemen then proceeded to No. 19 Atlantic Drive, Pacific Grand Villa, to enforce Search Warrant No. 96-802. When the policemen arrived at the place, they coordinated with Antonio Pangan, the officer in charge of security in the building.8The men found that the Condominium Unit No. 19 was leased to Lao under the name Henry Kao Tsung. The policemen, Pangan and two security guards of the Pacific Grand Villa proceeded to the condominium unit. Anciro, Jr. knocked repeatedly on the front door, but no one responded. Pangan, likewise, knocked on the door.9Appellant Lee peeped through the window beside the front door.10The men introduced themselves as policemen,11but the appellant could not understand them as she could not speak English.12The policemen allowed Pangan to communicate with appellant Lee by sign language and pointed their uniforms to her to show that they were policemen. The appellant then opened the door and allowed the policemen, Pangan and the security guards into the condominium unit.13The policemen brought appellant Lee to the second floor where there were three bedrooms - a master's bedroom and two other rooms. When asked where she and Lao slept, appellant Lee pointed to the master's bedroom.14Anciro, Jr., Margallo and PO3 Wilhelm Castillo then searched the master's bedroom, while Ferias and Pangan went to the other bedroom where appellant Zhen Hua was sleeping.15Ferias awakened appellant Zhen Hua and identified himself as a policeman. Appellant Zhen Hua was surprised.16Anciro, Jr. saw a small cabinet inside the master's bedroom about six feet high. He stood on a chair, opened the cabinet and found two transparent plastic bags each containing one kilo of shabu,17a feeding bottle, a plastic canister18and assorted paraphernalia.19Inside the drawer of the bed's headboard, Anciro, Jr. also found assorted documents, pictures, bank passbooks issued by the Allied Banking Corporation, credit cards, passports and identification cards of Lao and Lee.20Anciro, Jr. asked appellant Lee who was the owner of the crystalline substance, but the latter did not respond because she did not know English.21Anciro, Jr. asked Margallo for instructions on what to do with the things he had found, and the latter told him to keep the same for future reference,22and as evidence against any other suspect for illegal drug transactions.23Anciro, Jr., Pangan and Margallo later showed the seized articles to the other members of the team.24Anciro, Jr. told appellant Lee to bring some of her clothes because they were bringing her to the PARAC headquarters. Appellant Lee did as she was told and took some clothes from the cabinet in the master's bedroom where Anciro, Jr. had earlier found the shabu.25The policemen brought the appellants to the PARAC headquarters. The following articles were found and confiscated by the policemen in the condominium unit:

A. TWO (2) Big Transparent Plastic Bags containing about one (1) Kiloeachof white crystalline granules later tested to be Methamphetamine Hydrochloride or Shabu, a regulated drug;

b. ONE (1) Transparent Plastic Baby Feeding Bottle containing an undetermined quantity of suspected Shabu;

c. ONE (1) Small Plastic Cannister also containing undetermined amount of suspected Shabu '.

d. Assorted Pieces of Shabu Paraphernalia consisting of Improvised Tooters used for sniffing shabu, Improvised Burners used for burning Shabu, aluminum foils, etc.;26Anciro, Jr. placed the articles he found in the cabinet inside a box.27The appellants were then brought to the PARAC headquarters where they were detained. Pangan signed a Certification28that the search conducted by the policemen had been orderly and peaceful. Anciro, Jr. affixed his initials on the transparent plastic bags and their contents, the transparent baby feeding bottle and the plastic cannister and their contents. On October 26, 1996, he and Ferias29brought the seized items to the PNP Crime Laboratory for laboratory examination30along with the letter-request31thereon.

On the same day, Forensic Chemist Officer Isidro L. Cario signed Chemistry Report No. D-1243-96 which contained his findings on the laboratory examination of the items which were marked as Exhibits "A" to "A-4," viz:

SPECIMEN SUBMITTED:

Exh. "A" - One (1) "must de Cartier Paris" carton containing the following:

Exh. "A-1" - One (1) heat-sealed transparent plastic bag containing 1,000.40 grams of white crystalline substance.

Exh. "A-2" - One (1) heat-sealed transparent plastic bag containing 998.10 grams of white crystalline substance.

Exh. "A-3" - One (1) transparent plastic "Babyflo Nurser" feeding bottle with pink cover containing 18.52 grams of white crystalline substance.

Exh. "A-4" - One (1) transparent plastic container with white cover containing 3.28 grams of white crystalline substance.

NOTE: The above-stated specimen were allegedly taken from the residence of the above-named subjects. xxx

PURPOSE OF LABORATORY EXAMINATION:

To determine the presence of prohibited and/or regulated drug.

FINDINGS:

Qualitative examination conducted on the above-stated specimens, Exhs. "A-1" through "A-4" gave POSITIVE result to the test for Methamphetamine hydrochloride, a regulated drug. xxx32The police officers executed an affidavit of arrest.33Pangan and the two security guards signed a certification stating that nothing was destroyed in the condominium unit and that the search was orderly and peaceful.34The policemen also accomplished an inventory of the articles seized during the search.35The appellants were charged of violation of Section 16, Rep. Act No. 6425, as amended, in an Information filed in the RTC of Paraaque, Metro Manila, the accusatory portion of which reads:

That on or about the 26th day of October 1996, in the Municipality of Paraaque, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and both of them mutually helping and aiding one another, not being lawfully authorized to possess or otherwise use any regulated drug and without the corresponding license or prescription, did then and there willfully, unlawfully and feloniously have, in their possession and under their control and custody, the following to wit:

A. One (1) heat-sealed transparent plastic bag containing 1,000.40 grams of white crystalline substance;

B. One (1) heat-sealed transparent plastic bag containing 998.1 grams of white crystalline substance;

C. One (1) transparent plastic "Babyflo Nurser" feeding bottle with pink cover containing 18.52 grams of white crystalline substance;

D. One (1) transparent plastic container with white cover containing 3.28 grams of white crystalline substance

which when examined were found to be positive for Methamphetamine Hydrochloride (Shabu), a regulated drug.

CONTRARY TO LAW.36Both appellants, assisted by counsel, were duly arraigned on November 29, 1992, and pleaded not guilty to the charge.

The Case for the Appellants

Appellant Jogy Lee denied the charge. She testified that she was a resident of Kwantong, China, a college graduate who could not speak nor understand English. She was once employed in a real estate firm. One of her co-employees was Huang Zhen Hua.37She met Henry Lao in China sometime in 1995,38and he brought her to Belgium that same year. Lao also helped her procure a Belguim passport, for he explained that if she only had a Chinese passport, it would be difficult to secure visas from countries she wanted to go to and visit; whereas many countries did not require a Belgian passport holder to secure visas before allowing entry therein. In the process, he and Lao fell in love and became lovers.

Upon Lao's invitation, appellant Lee visited the Philippines as a tourist for the first time in April 1996. Lao met her at the airport, and she was, thereafter, brought to a hotel in Manila where she stayed for less than a month.39She returned to the Philippines a second time and was again billeted in a hotel in Manila. All her expenses were shouldered by Lao, who was engaged in the garlic business.40As far as she knew, Lao was not engaged in any other business.41In June 1996, she invited her friend, appellant Huang Zhen Hua to visit the Philippines to enjoy the tourist spots.42They were then in China.

In the evening of October 1, 1996, appellant Lee returned to the Philippines on a tourist visa. She was fetched by Lao, and she was brought to his condominium unit at No. 19, Atlantic Drive, Pacific Grand Villa, Sto. Nio, Paraaque. She had been residing there since then. She and Lao used to go to the shopping malls43and she even saw Chan once when he cleaned his Nissan car in Lao's garage.

On October 22, 1996, appellant Zhen Hua arrived from China at the NAIA and was met by Lao at the airport. He tried to check in at the Diamond Hotel but Lee told him that he could stay in the condominium unit. Zhen Hua was brought to the Villa where he had been staying since then. The appellants had made plans to visit Cebu.

At about 6:00 a.m. on October 26, 1996, appellant Lee was sleeping in the master's bedroom at the condominium unit. She had closed all the windows because she had turned the air conditioning unit on. Zhen Hua was sleeping in the other bedroom in the second floor beside the master's bedroom. Lao's Honda Civic car and Chan's Nissan car were in the garage beside the condominium unit. Momentarily, Lee heard someone knocking on the bedroom door. When she opened it, three (3) policemen barged into the bedroom and at the room where appellant Zhen Hua was sleeping. Anciro, Jr. was not among the men. Lee did not hear the policemen knock at the main door before they entered.44The policemen were accompanied by Chuang, a Cantonese interpreter, who told her that the policemen were going to search the house.45Appellant Lee saw a policeman holding two papers, but no search warrant was shown to her.46She was so frightened.

The policemen placed two plastic bags on the bed before they searched the master's bedroom. Appellant Lee went to the room of appellant Zhen Hua and when she returned to the master's bedroom, she saw shabu on the bed.47The policemen took her ring, watch and theP600,000 owned by Lao which had earlier been placed in the cabinet, her papers and documents, and those of Lao's as well. She had never seen any shabu in the room before the incident. Thereafter, she and appellant Zhen Hua were brought to the PARAC headquarters where they were detained. Chuang, the cantonese interpreter, informed her that shabu had been found in the condominium unit and that the policemen were demandingP5,000,000 for her release. She was also told that if she did not pay the amount, she would be charged with drug trafficking, and that the leader of the group who arrested her would be promoted. However, she told Chuang that she had no money. Since she could not pay the amount, she was boarded on a PARAC owner-type jeep and returned to the condominium unit where the policemen took all the household appliances, such as the television, compact discs, washing machine, including laundry detergent. Only the sofa and the bed were not taken. About ten (10) days later, the appellants secured the services of counsel.

Antonio Pangan testified that he and the policemen knocked on the door to the condominium unit but that no one responded. He shouted, "Sir Henry," referring to Lao, but there was no response from inside the condominium. After about three (3) to five (5) minutes, a policeman kicked the door open and they entered the house. They went to the second floor and saw the appellants sleeping.

Pangan testified that he did not see any shabu that was seized by the policemen. He learned that shabu had been found and taken from the condominium unit only when he saw someone holding up the substance on television during the daily news program TV Patrol.48Appellant Zhen Hua also denied the charge. He corroborated the testimony of appellant Lee that upon her invitation, he arrived in the Philippines on a tourist visa on October 22, 1996. He claimed that he did not see Anciro, Jr. in the condominium unit when policemen arrived and searched the house. He testified that aside from the PARAC policemen, he was also investigated by policemen from Taiwan.

After trial, the court rendered judgment on January 10, 1999, convicting both appellants of the crime charged. The decretal portion of the decision reads:

WHEREFORE, PREMISES CONSIDERED, finding accused Jogy Lee and Huang Zhen Hua GUILTY beyond reasonable doubt for violation of Sec. 16, Art. III, RA 6425, as amended by RA 7659, and considering the absence of any aggravating circumstances, this Court hereby sentences both accused to suffer the penalty of Reclusion Perpetua and to pay a fine ofP500,000.00 each. The properties seized in accordance with the search warrants issued relative to this case are hereby ordered confiscated in favor of the government and the Clerk of Court of this Court is directed to turn over to the Dangerous Drugs Board, the drugs and paraphernalia subject hereof for proper disposition.

The Clerk of Court is also directed to prepare the Mittimus for the immediate transfer of both accused Jogy Lee and Huang Zhen Hua from the Paraaque City Jail to the Bureau of Correccions (sic) in Muntinlupa City.

SO ORDERED.49The Present AppealOn appeal to this Court, appellant Zhen Hua, asserts that:

First. The evidence for the prosecution, as a whole, is so far as self-contradictory, inherently improbable and palpably false to be accepted as a faithful reflection of the true facts of the case;

Second. Appellant Huang Zhen Hua's conviction was based merely on the trial court's conclusion that he "is not an epitome of first class tourist and that he appeared nonchalant throughout the proceedings;"

Third. In convicting said appellant, the court below completely disregarded the glaring facts and admissions of the prosecution's principal witnesses that no regulated drug was ever found in his possession;

Fourth. The trial court, likewise, ignored the fact that the appellant's arrest was illegal and in violation of his constitutional and basic rights against arrest without probable cause as determined by a Judge and that his arraignment did not constitute a waiver of such right;

Fifth. The trial court failed to consider the fact that the presumption of regularity of performance of the police officers who took part in the search had been overcome by prosecution's own evidence, thereby wrongly giving such presumption substance over and above the constitutional presumption of innocence of the appellant.50For her part, appellant Lee contends that:

1.01 THE ALLEGED TWO KILOS OF SHABU FOUND INSIDE ONE OF THE ROOMS IN THE TOWNHOUSE RENTED BY HENRY LAU WERE MERELY PLANTED BY PARAC OPERATIVES;

1.02 THE IMPLEMENTATION OF THE SEARCH WARRANT WAS HIGHLY IRREGULAR, DUBIOUS AND UNREASONABLE AS THE SEARCH WARRANT DID NOT CONTAIN ANY PARTICULAR DESCRIPTION OF THE ROOM TO BE SEARCHED, NOR WAS THERE ANY INTERPRETER TO ASSIST AND GUIDE JOGY LEE, WHO NEITHER KNEW NOR UNDERSTAND THE ENGLISH LANGUAGE, DURING THE SEARCH AND EVEN DURING THE TRIAL;

2. THE LOWER COURT ERRED IN NOT ACQUITTING ACCUSED JOGY LEE UPON THE GROUND THAT HER GUILT WAS NOT ESTABLISHED BY PROOF BEYOND REASONABLE DOUBT.51For its part, the Office of the Solicitor General (OSG) posits that appellant Zhen Hua should be acquitted on the ground of reasonable doubt, but that the conviction of appellant Lee should be affirmed.

The Court's RulingWe shall delve into and resolve the assigned errors of the appellants Huang Zhen Hua and Jogy Lee sequentially.

On Appellant Zhen HuaThe OSG contends that the prosecution failed to muster the requisite quantum of evidence to prove appellant Zhen Hua's guilt beyond reasonable doubt for the crime charged, thus:

Huang Zhen Hua denies having anything to do with the bags of "shabu" found in the townhouse unit of Henry Lau. He claims that he arrived in the Philippines as a tourist on October 22, 1996, upon the invitation of Jogy Lee. Allegedly, at the time of his arrest, he had been in the Philippines for barely four days. He claims that he was just temporarily billeted as a guest at the townhouse where Jogy Lee was staying. And that he had no control whatsoever over said townhouse. He puts emphasis on the fact that the search of his room turned out to be "negative" and that the raiding team failed to seize or confiscate any prohibited or regulated drug in his person or possession. He, therefore, prays for his acquittal.

The People submits that Huang Zhen Hua is entitled to acquittal. The prosecution's evidence fails to meet the quantum of evidence required to overcome the constitutional presumption of innocence; thus, regardless of the supposed weakness of his defense, and his innocence may be doubted, he is nonetheless entitled to an acquittal (Natividad v. Court of Appeals, 98 SCRA 335 (1980), cited in People v. Fronda, G.R. No. 130602, March 15, 2000). The constitutional presumption of innocence guaranteed to every individual is of primary importance, and the conviction of the accused must rest not on the weakness of the defense but on the strength of the evidence for the prosecution.

In the instant case, as pointed out by appellant Huang Zhen Hua, the trial court erred when it did not give much weight to the admission made by the prosecution witnesses that no regulated drug was found in his person. No regulated drug was also found inside his room or in his other belongings such as suitcases, etc. Thus, he had no actual or constructive possession of the confiscated "shabu."

Moreover, it is not disputed that Huang Zhen Hua had only been in the country for barely four (4) days at the time when he was arrested. The prosecution was unable to show that in these four (4) days Huang Zhen Hua committed acts which showed that he was in cahoots with the drug syndicate Henry Lau and Peter Chan. It was not even shown that he was together with Henry Lau and Peter Chan on any occasion. As for Huang Zhen Hua, therefore, there is no direct evidence of any culpability. Nor is there any circumstantial evidence from which any culpability may be inferred.52We agree with the OSG. In a case of recent vintage, this Court, in People v. Tira,53ruminated and expostulated on the juridical concept of "possession" under Section 16, Article III of Rep. Act No. 6425, as amended, and the evidence necessary to prove the said crime, thus:

The essential elements of the crime of possession of regulated drugs are the following: (a) the accused is found in possession of a regulated drug; (b) the person is not authorized by law or by duly constituted authorities; and, (c) the accused has knowledge that the said drug is a regulated drug. This crime is mala prohibita, and, as such, criminal intent is not an essential element. However, the prosecution must prove that the accused had the intent to possess (animus posidende) the drugs. Possession, under the law, includes not only actual possession, but also constructive possession. Actual possession exists when the drug is in the immediate physical possession or control of the accused. On the other hand, constructive possession exits 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 a showing of non-exclusive possession would not exonerate the accused. Such fact of possession may be proved by direct or circumstantial evidence 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. Since knowledge by the accused of the existence and character of the drugs in the place where he exercises dominion and control is an internal act, the same may be presumed from the fact that the dangerous drug is in the house or place over which the accused has control or dominion, or within such premises in the absence of any satisfactory explanation.54In this case, the prosecution failed to prove that the appellant, at any time, had actual or constructive possession of the regulated drug found in the master's bedroom where appellant Lee was sleeping; or that the appellant had accessed the said room at any given time; or that he had knowledge of the existence of shabu in appellant Lee's bedroom. Appellant Zhen Hua had arrived in the Philippines upon the invitation of appellant Lee only on October 22, 1996 or barely four (4) days before the arrival of the policemen and the search conducted in the condominium unit leased by Henry Lao. He was a mere visitor of appellant Lee. There is no evidence that appellant Zhen Hua was aware of the alleged illegal drug activities and/or transactions of Henry Lao, Peter Chan and appellant Lee. The policemen did not find any regulated drug in the room where appellant Zhen Hua was sleeping when they made their search.

The evidence of the prosecution against appellant Zhen Hua falls short of the requisite quantum of evidence to prove conspiracy between him, appellant Lee and Chan or Lao.

There is conspiracy when two or more persons agree to commit a crime and decide to commit it.55Conspiracy cannot be presumed.56Conspiracy must be proved beyond reasonable doubt like the crime subject of the conspiracy.57Conspiracy may be proved by direct evidence or by proof of the overt acts of the accused, before, during and after the commission of the crime charged indicative of a common design.58The bare fact that on two or three occasions after the arrival of appellant Zhen Hua from China, and before the search conducted in Lao's condominium unit, appellant Zhen Hua had been seen with Lao, Chan and appellant Lee. Having dinner or lunch at a restaurant does not constitute sufficient proof that he had conspired with them or with any of them to possess the subject-regulated drug. Mere association with the principals by direct participation or mere knowledge of conspiracy, without more, does not suffice.59Anciro, Jr. even admitted that during his surveillance, he could have mistaken appellant Zhen Hua for another group of Chinese persons who were also being watched.60Appellant Zhen Hua should, thus, be acquitted.

On Appellant LeeAppellant Lee avers that certain irregularities were attendant in the issuance and implementation of Search Warrant No. 96-802, as follows: (a) the policemen who implemented the search warrant failed in their duty to show to her the said warrant, inform her of their authority and explain their presence in the condominium unit; (b) the policemen gained entry into the condominium unit by force while she was sleeping; and (c) articles and personal effects owned by her and Lao were taken and confiscated by the policemen, although not specified in the search warrant.

The appellant concludes that the articles procured by the policemen on the occasion of the search of the condominium unit are inadmissible in evidence.

Appellant Lee, likewise, contends that she was a victim of a frame-up because the policemen planted the regulated drug on her bed even before they searched the bedroom. She went to the room of appellant Zhen Hua to find out if he was already awake, and when she returned to the bedroom, she noticed shabu on her bed. She avers that the sole testimony of Anciro, Jr., that he found the regulated drug in the master's bedroom, is incredible because he was not with the policemen who barged into the bedroom. She notes that even Pangan, the caretaker of the Villa, testified that he did not see any illegal drug confiscated by the policemen.

According to appellant Lee, the trial court erred in convicting her of the crime charged, considering that Lao and Chan were the suspects identified in the search warrants, not her. She avers that she had no knowledge of the alleged illegal drug transactions of her lover Lao. She contends that there was no probable cause for her arrest as her mere presence in the condominium unit does not render her liable for the shabu found in the master's bedroom of the condominium unit leased by Lao. She further avers that the testimonies of the witnesses for the prosecution are inconsistent; hence, barren of probative weight. The appellant also asserts that she was deprived of her right to due process when the trial court conducted a trial without a Chinese interpreter to assist her.

The OSG, for its part, avers that the police officers are presumed to have performed their duties. Based on the testimony of Anciro, Jr., appellant Lee was shown the search warrant, through the window, and the policemen identified themselves through their uniforms. The security guards of the condominium also explained the search warrant to the appellant. Although she was, at first, reluctant to open the door, appellant Lee later voluntarily opened the door and allowed them entry into the unit. There was no evidence of forcible entry into the unit and no breakage of any door. The OSG further avers that the appellant had been in the country for quite sometime already and could not have gotten around without understanding English. In fact, the OSG argues that when Anciro, Jr. told the appellant to get some of her clothes since she would be brought to the police headquarters in Quezon City, she did as she was told and took her clothes from the cabinet where the shabu were found by the policemen.

The OSG further points out that Pangan, the chief of secur