LIBEL CASE

ROLANDO GUYUD,

Complainant,

A.M. No. MTJ-03-1469

January 13, 2003 -versus-

JUDGE RENATO P. PINE, MUNICIPAL TRIAL COURT,

ECHAGUE, ISABELA,

Respondent.

D E C I S I O N

MENDOZA, J.,

This is a complaint against Judge Renato P. Pine of the Municipal Trial Court of Echague, Isabela for misconduct due to gross

ignorance of the law.

Complainant Rolando Guyud, together with eight other accused, all residents of Barangay Gumbaoan, Echague, Isabela, were

charged with libel [1] by a certain Jeffrey Iloreta, also a resident of Barangay Gumbaoan, Echague, Isabela. The criminal

complaint [2] against complainant and the other accused alleged: chan robles virtual law library

That on or about July 2, 2001 at Barangay Gumbaoan, Echague, Isabela and within the preliminary jurisdiction of this Honorable

Court, the said accused conspired and confederated [and] made certification as barangay officials of this barangay, did then and

there, willfully, unlawfully and feloniously wrote "THAT UNDERSIGNED IS NOT A LAW ABIDING MEMBER OF THIS BARANGAY AND

[HAS] MANY BAD RECORDS AND [IS] FACING PENDING CASES IN COURT" and which words tend to cause dishonor, discredit or

contempt over the person of the undersigned and his family to the damage and prejudice of the same.cralaw

CONTRARY TO LAW. chan robles virtual law library

Echague, Isabela, July 12, 2001.

(original signed)

JEFFREY ILORETA

Complainant

On August 14, 2001, Atty. Marcelino J. Alzate, Branch Clerk of Court of MTC of Echague, issued a subpoena [3] requiring complainant

and his co-accused to appear before the court on September 5, 2001, at 8:30 in the morning, for preliminary investigation. On

August 28, 2001, the accused moved for the dismissal of the case on the ground that in cases of libel, except for the Office of the

Provincial Prosecutor, only a municipal trial court judge in the capital town of the province can conduct a preliminary investigation.

Since Echague is not the capital town of Isabela, respondent had no authority to conduct a preliminary investigation in this case. [4]

Respondent denied the accused’s motion and, on September 5, 2001, proceeded with the preliminary investigation. On the same

day, he issued a warrant for their arrest, fixing the bail bond of each at P8,000.00. [5] The accused, including herein complainant,

were arrested while they were attending the hearing of a case in court. The following day, September 6, 2001, they filed a motion

for the reduction of their bail to P4,000.00, which respondent granted on the same day. After posting their bail bond in the reduced

amount, the accused were ordered released. In his affidavit dated September 12, 2001, complainant alleged that he suffered anxiety

and was deeply prejudiced because of his arrest. chan robles virtual law library

On September 19, 2001, respondent issued an order recalling the warrant of arrest he had issued and remanded the records of the

case to the Office of the Provincial Prosecutor for the holding of a preliminary investigation. In his order, respondent stated: [6]

The accused stand charged of the crime of Libel by means of writings defined and penalized under Article 355 of the Revised Penal

Code which carries a penalty of prision correccional in its minimum and medium periods, hence within the jurisdiction of first level

courts pursuant to [B.P. Blg.] 129, as amended.cralaw

Moreover, pursuant to Article 360 of the Revised Penal Code on General Provisions relative to the crime of Libel, jurisdiction to try

Libel cases rests with the Regional Trial Court and the preliminary investigation to be conducted by the Provincial or City Fiscal of the

province or city, or by the Municipal Court of the City or Capital of the Province where such action may be instituted. chan robles

virtual law library

WHEREFORE, premises considered, let the Records of the case be forwarded to the Office of the Provincial Prosecutor for the

conduct of the Preliminary Investigation.cralaw

The Warrant Of Arrest earlier issued by this Court and the bailbonds posted by all of the accused are hereby set aside and/or

cancelled having been issued/ordered beyond the Court’s jurisdiction.cralaw

SO ORDERED.cralaw

Echague, Isabela, September 19, 2001.

(original signed)

RENATO P. PINE

Acting Judge

In his comment [7] on the complaint, respondent admitted the foregoing facts. He explains that he is saddled with work and,

therefore, is liable to make mistakes. He claims that as soon as he realized his error, he lost no time to correct it by remanding the

case to the Prosecutor’s Office, which has jurisdiction to conduct preliminary investigations in libel cases, and ordering the release of

the accused. His comment reads: chan robles virtual law library

I humbly admit having conducted a preliminary examination in Criminal Case No. 5807 entitled "People of the Philippines vs.

Rolando Guyud, et al." for "Libel By Means of Writings Or Similar Means" for the purpose of determining a probable cause for the

issuance of a Warrant of Arrest considering that the penalty for the crime is only prision correccional in its minimum and medium

periods hence, within the jurisdiction of first level courts pursuant to [B.P. Blg.] 129, as amended. The corresponding Warrant of

Arrest was subsequently issued on September 5, 2001. The following day, September 6, 2001, five (5) of the [nine (9)] accused,

namely: Rolando Guyud, Leon Saet [Jr.], Gil Rivera, Bonifacio Anchola, Sr. and Efren Morada came to Court and filed a Motion To

Reduce bail bond by virtue of which the Court lowered the bail bond from P8,000.00 to P4,000.00 On that same day, the

aforenamed accused filed their bail bond[s] and were ordered released. On September 19, 2001, after the Court realized having

acted beyond its jurisdiction, an Order was issued setting aside the Warrant of Arrest and canceling the bail bonds posted by the

accused, copy of the said Order is hereto attached as Annex "A." The Court then forwarded the Records of the Case to the Office of

the Provincial Prosecutor for the conduct of the Preliminary Investigation pursuant to Art. 360 of the RPC, as amended. Meanwhile,

the bailbonds of the accused were correspondingly returned to each of them by the Clerk of Court. chan robles virtual law library

Your Honor, I only have Wednesdays and Thursdays of every week to attend to cases before the MTC of Echague, Isabela. I conduct

preliminary examinations/investigations in the morning of every Wednesdays and make Resolutions and/or Decisions in the

afternoon. I hear Civil Cases in the morning of every Thursdays and hear Criminal Cases in the afternoon. Considering the number of

cases (which were already considerably reduced) pending with this Court which I have to attend to, plus the cases pending before

the MCTC of Jones-San Agustin and the MCTC of Ramon-San Isidro which I also handle, not to mention four (4) special cases

assigned to me before the MTC of Cordon, Isabela. I am vulnerable to committing lapses and/or mistakes. At any rate, the mistake

has already been corrected with the issuance of the Order dated September 19, 2001, Annex "A" hereof. Practically, the complaint

has become moot and academic and the complainant was not damaged because he was ordered released on the same day he

submitted himself to the Court and posted his reduced bail which was later returned to him. chan robles virtual law library

Your Honor, I humbly beg for leniency and understanding even as I promise to be more vigilant next time.cralaw

Very respectfully yours,

(original signed)

RENATO P. PINE

Acting Judge

In its report, dated August 9, 2002, the Office of the Court Administrator (OCA) recommends that the case be re-docketed as a

regular administrative matter and that respondent judge be fined in the amount of five thousand (P5,000.00) pesos for gross

ignorance of the law for conducting a preliminary investigation on the case. Citing the legal maxim "ignorance of the law excuses no

one," the OCA rejects respondent’s explanation and notes that the fact that the accused moved to dismiss the case should have put

him on guard that the said case was erroneously filed in his sala.cralaw

The recommendation is well taken.cralaw

Art. 360 of the Revised Penal Code indeed provides that preliminary investigations of libel cases shall be conducted by the provincial

or city prosecutor of the province or city or by the municipal court of the city or capital of the province in which the criminal action

may be filed. In this case, the MTC of Echague, over which respondent presides, is not a municipal trial court of the city or of the

capital of the province and, therefore, has no jurisdiction to conduct the preliminary investigation of Criminal Case No. 5807. This is a

matter which respondent, as presiding judge, ought to know. In Dumo v. Perez, [8] this Court said that although judges cannot be

held to account or answer criminally, civilly or administratively for every erroneous judgment or decision rendered by him in good

faith, it is imperative that they should have basic knowledge of the law. The jurisdiction of the court over which one presides is such

basic matter. To be able to render justice and to maintain public confidence in the legal system, judges must keep abreast of the

laws and jurisprudence. Rule 1.01, Canon 1 of the Code of Judicial Conduct provides that judges must be the embodiment of

competence, integrity and independence. Obviously, they cannot live up to this expectation if they act in a case without jurisdiction

through ignorance. chan robles virtual law library

In Cacayoren v. Suller, [9] the respondent judge was fined P3,000.00 in each case filed against him for misapplying the rulings of the

Court by taking cognizance of an action for damages based on malicious prosecution even if there was as yet no acquittal nor final

dismissal rendered by the court in the criminal cases. In Ubando-Paras v. Fernandez, [10] the respondent judge was fined P5,000.00

for ordering the release of an accused in a criminal case even though he had paid the bail bond merely by means of a check and did

not post a cash bond. In Bajet v. Areola, [11] the respondent judge issued an order authorizing demolition of the improvements on

the subject property without first conducting a hearing. He was found guilty of gross ignorance of the law and ordered to pay a fine

of P3,000.00.cralaw

In other cases, the Court considered the absence of bad faith, or the willful intention to prejudice a party litigant, or any showing

that an erring judge was impelled by some ulterior ends or ill motives and, accordingly, mitigated the imposable penalty. In Re: Cases

Left Undecided by Judge Narciso M. Bumanglag, Jr., [12] serious illness justified the inability of the respondent judge to decide

before his retirement from the service seven (7) criminal cases and three (3) civil cases within the 90-day reglementary period. The

OCA recommended a fine of P5,000.00 to be imposed on the respondent but the Court lowered it to P2,000.00. In Office of the

Court Administrator v. Quizon, [13] the Court considered the attenuating circumstances of the respondent judge’s serious illness and

his heavy caseload and lowered OCA’s recommended fine of P20,000.00 to P5,000.00. In Chavez v. Escañan, [14] respondent judge

was fined P5,000.00 for gross ignorance of the law for issuing orders impleading the owners of the motor vehicle as the accused in a

criminal case for reckless imprudence instituted as a result of a vehicular accident involving the said vehicle. chan robles virtual law

library

In the case at bar, respondent’s liability is somewhat mitigated by his candor in admitting his mistake and promptly correcting it.

Apparently, he did not appreciate the point of law raised when his authority to conduct the preliminary investigation in the libel case

was first questioned. But, as soon as he realized his mistake, he lost no time in declaring himself without jurisdiction to continue

acting in the case and immediately ordered the release of complainant and his co-accused. A fine of P5,000.00, as recommended by

the Office of the Court Administrator, would thus appear to be an appropriate sanction to impose on respondent.cralaw

WHEREFORE, respondent Judge Renato P. Pine of the Municipal Trial Court of Echague, Isabela, is found GUILTY of gross ignorance

of the law and is hereby ordered to pay a FINE in the amount of five thousand pesos (P5,000.00) with ADMONITION to be more

assiduous in the study of cases and the applicable statute and jurisprudence.cralaw

SO ORDERED.cralaw

PIRACY

PEOPLE OF THE PHILIPPINES,

Plaintiff-Appellee,

G.R. No. 139670

January 21, 2002

-versus-

AHMAD LANGALEN Y DEMALEN A.K.A. "KUMANDER KAMLON,"

HASIM UPAM Y ABUBACAR, SAMSUDIN TALIB Y LIMBA, AND

ABUBAKAR DAGADAS y ANGGUBALA,

Accused-Appellants.

chanroblesvirtualawlibrary

D E C I S I O N

DAVIDE, JR., C.J.:

Under automatic review is the decision [1] of the Regional Trial Court (RTC) of Manila, Branch 18, in Criminal Case No. 95-145780,

finding accused-appellants Ahmad Langalen y Demalen (hereafter AHMAD), Hasim Upam y Abubacar (hereafter HASIM), Samsudin

Talib y Limba (hereafter SAMSUDIN) and Abubakar Dagadas y Anggubala (hereafter ABUBAKAR) guilty of violation of Presidential

Decree No. 532, otherwise known as the Anti-Piracy and Anti-Highway Robbery Law of 1974, and sentencing them to suffer the

penalty of death. chan robles virtual law library

The accusatory portion of the information [2] in Criminal Case No. 95-145780, under which accused-appellants were tried and

convicted, reads as follows:

That at about 3:15 o'clock [sic] in the afternoon of September 8, 1995 along Palacio and Orosa Streets, Intramuros, Manila, a street

or road used by persons or vehicles for movement, circulation or transportation of persons, goods or articles, and within the

jurisdiction of this Honorable Court, the above-named accused, together with MOHAMAD MAMISON whose case is still pending

preliminary investigation with the Department of Justice, and other persons whose identities are still unknown and are at large,

conspiring, confederating and mutually helping one another, with intent to gain, did then and there, willfully, unlawfully and

feloniously attack with firearms the four (4) vehicles convoy which were then traveling towards the general direction of Ermita,

Manila and which occupants were then carrying money owned by proprietors/owners of VMG Money Changer amounting to

Fourteen Million Seven Hundred Thousand (P14,700,000.00) Pesos, more or less, (Philippine Currency) and thereafter carted away

said money contained in two (2) duffle [sic] bags and one (1) paper bag and on the occasion of such robbery, three (3) persons were

killed and several others injured.cralaw

No bail was recommended for the temporary liberty of accused-appellants.cralaw

Upon their arraignment on 25 October 1995, accused-appellants entered a plea of not guilty and waived their right to a pre-trial. On

even date, they filed a motion for bail on the ground that the evidence against them was weak. No action thereon was taken by the

trial court. Trial on the merits proceeded on various dates.cralaw

The trial court summarized the evidence for the prosecution as follows: chan robles virtual law library

The record shows that on September 8, 1995, at around 3:00 p.m. a convoy of nine male employees and/or private security guards

of VMG Money Changer, which holds office in Ermita, Manila, together with two police escorts, SPO2 Romeo and SPO3 Ricardo

Gonzales, were on board four cars travelling southward along Palacio Street. Loaded in the lead car driven by Zeny Santillan with

Dante Castro and Gilbert Yu as passengers were two leather bags and one paper bag of money in the total sum [sic] of

P13,600,000.00. The money was earlier withdrawn from the Metrobank (P7,000,000.00) and the Equitable Bank (P6,600,000.00) in

Binondo, Manila. Of the three occupants of the lead car, only Castro was armed with a .45 cal. pistol.cralaw

On nearing the intersection of P. Burgos and Gen. Luna Streets, the convoy stopped, because the traffic lights [sic] turned red. At this

point, several men in fatigue uniform with bonnets covering their faces, (only their eyes and noses were exposed) and armed with

rifles and handguns, suddenly appeared and fired at the convoy. Castro was able to return fire and so did the two police escorts.

Later, Castro and his companion jumped from their car to seek cover across the street, but while running, Castro sustained gunshot

wounds in his right thigh and left buttock, which rendered him unconscious for a few minutes. SPO3 Gonzales, who was inside the

last car of the convoy, died on the spot due to gunshot wounds, while SPO2 Romeo suffered gunshot wounds in his right thigh, right

leg and right armpit. Two other members of the convoy, Tiborcio Tomas and Tony Diquit also suffered gunshot wounds. The gunmen

swiped the P13,600,000.00 from the lead car of the ambushed convoy and drove away in their vehicles. chan robles virtual law

library

[National Bureau of Investigation] Agent Moises Tamayo was assigned to investigate the robbery. On September 10, 1995, Hasam

Mohammad was introduced to Agent Tamayo by the latter's friend, Allan Sulaybar. Mohammad revealed that his common-law wife,

Halina Gulam, knew some of the people involved in the robbery. On September 15, Agent Tamayo met Gulam, who confided to him

that Mohammad Mamison was one of those involved in the robbery and she executed a written statement on the matter, Exhibit

"1". On the basis of this information, the NBI procured a search warrant from Hon. Executive Judge William Bayhon of the RTC of

Manila, against Mamison and raided his house on No. 158 24th Avenue, Rembo Fort Bonifacio, Makati, on the early morning of

September 19, 1995. The NBI operatives led by Atty. Artemio Sacaging did not find any illegal firearms in the house of Mamison, but

nevertheless invited the latter to their office for investigation. And after about three hours of questioning and friendly persuasion by

Agent Tamayo, Senior Agents Serafin Gil and NBI Special Investigators Gregorio Tumagan and Rene Sagun, Mamison finally admitted

in the presence of his lawyer, Atty. Perfecto Caparas, and wife, Normina Kamid, his participation in the robbery and implicated the

four accused as among those involved. And the declaration of Mamison was reduced into writing, Exhibit "B".cralaw

On September 22, 1995, the NBI operatives armed with a search warrant, raided the house of Accused Ahmad Langalen on RIN,

Maharlika, Taguig, Metro Manila, where the operatives found and confiscated one .38 cal. revolver; one .45 cal. pistol, (both

unlicensed), and live ammunitions for the two handguns. The four accused, Langalen, Upam, Talib and Daganas, who were all in the

house of accused Langalen at the time of the raid, were arrested for illegal possession of firearms. At the NBI Headquarters, the four

accused were positively identified in a police line- up by Mamison as participants in the robbery, and in connection therewith,

Mamison executed a supplemental sworn statement, Exhibit "C".cralaw

In the trial of the case, Mamison, who is in the custody of the NBI under the witness protection program, was presented as a

prosecution witness. He affirmed the truthfulness of the two sworn statements he had given to the NBI, Exhibits "B" and "C", and he

declared that he is from Cotabato City, Mindanao, where he was a farmer before he took up residence in Metro Manila. From his

testimony, the court has gathered that on September 8, 1995, at around 8:00 a.m., Mamison visited Accused Langalen (alias

Kumander Kamlon) at the latter's house in Taguig, Metro Manila. The two have known each other for a long time when they were

both residing in Cotabato. Mamison asked Accused Langalen for a loan of P100.00, but he rejoined that he has [sic] no money and

suggested that Mamison instead go with his (Langalen's) men who were about to leave. Mamison asked Accused Langalen where his

men were going, but he was told by the latter to just go with his men and he (Mamison), would later know their destination.

Wanting to earn some money, Mamison accepted the offer of Accused Langalen and boarded an owner type jeep together with

Accused Upan, Langalen and Daganas, and two other men, Nortin Ismael and Ibrahim Usman. Mamison saw Accused Talib board an

L-300 Van together with [the] other men of accused Langalen. Except (for) Mamison who is [sic] to act as look out, the men in the

jeep were all equipped with firearms. chan robles virtual law library

On reaching Intramuros, Mamison was made to get off from the jeep at a street corner near the Round Table Restaurant on Gen.

Luna Street. Accused Upam instructed Mamison to inform them if he would see [sic] any policeman. Thereupon the jeep parked 20

meters away where the L300 Van later followed and also parked. Mamison saw the occupants of the jeep and the L-300 Van get off

from the vehicles armed with handguns and rifles. Then suddenly he heard rapid gunfire and he saw his companions shooting at the

occupants of the convoy of four cars that were on standstill. Alarmed and scared, Mamison ran to the direction of the City Hall,

where he boarded a passenger jeepney and went home. [3]

The trial court did not recount the testimonies of the other witnesses for the prosecution, nor did it consider the testimonies of

some defense witnesses. This decision, consisting of slightly more than four (4) pages, is perhaps one of the shortest ponencias we

have reviewed where the death penalty has been imposed. This is rather lamentable in light of the gravity of the offense charged

and the number of witnesses presented by the prosecution and the defense.cralaw

We are thus constrained to painstakingly examine and assess the evidence the parties presented and offered. In the process, and for

moral certainty, we deem it necessary to summarize the testimonies of the other witnesses in the case at bar.cralaw

Witness Luis Gelvez was a bank representative of Montes Moveo Corporation. Among his duties was to withdraw money from the

bank. In the afternoon of 8 September 1995, he was with his co-worker Bong Canapi, and he was instructed to withdraw P7,000,000

from the Metropolitan Bank & Trust Company (Metrobank) and P1,000,000 from the Citytrust Banking Corporation, both at the

Plaza Lorenzo Ruiz branch in Binondo, Manila. Canapi was tasked to withdraw P6,600,000 from the nearby Equitable Bank & Trust

Company (Equitable Bank). After these transactions, Gelvez informed his office that the money was ready for pick-up at Metrobank.

He eventually turned over the P8,000,000 to Dante Castro and Gilbert Chua, his co-employees who met him at the bank. He

remained in the bank to settle the balance of the office account. In the meantime, Canapi confirmed that the P1,000,000 he

withdrew from Equitable Bank had also been handed to Castro and Chua. The entire collection was to be delivered to the VMG

Money Changer branches at M.H. del Pilar Street, Ermita, Manila and Dian Street, Makati. [4] chan robles virtual law library

Gelvez called up his wife, the cashier of VMG Money Changer, to inquire if Castro had already arrived. Instead, she asked where he

was since she heard from the office's two-way radio that there were fatalities. He and Canapi immediately proceeded to the VMG

Money Changer. On the way, they encountered heavy traffic near the city hall. He told Canapi to check the situation while he opted

to park the car and walk toward Intramuros. There he saw the convoy of four cars used by Castro. All four vehicles were riddled with

bullets and the police were already at the scene of the incident. He immediately checked the compartment of each car and

discovered that all the money was gone. He also saw the dead body of their police escort inside a vehicle. There were five others

who were wounded, all members of the convoy team. From there, he went back to the VMV Money Changer. [5]

Witness Dante Castro, a member of the security force of the VMG Money Changer, testified that he was at their office in the

afternoon of 8 September 1995 when he received a call from Luis Gelvez, who instructed him to fetch the money the latter had just

withdrawn. Along with ten companions in a convoy of four cars, they proceeded to Metrobank, Binondo branch, where Gelvez was

waiting. He received the money contained in a knapsack and a brown paper bag and kept it inside the car compartment, before

proceeding to the Equitable Bank to get the money withdrawn by Bong Canapi. On their way back to the office, while waiting for a

green light at the corner of P. Burgos and Palacio Streets in Intramuros, he saw at least four men in green and brown fatigue

uniforms who suddenly fired at them with their rifles. He immediately took cover under the dashboard of the car, opened the door,

and returned fire, hitting one of their assailants. Before he ran out of bullets, he saw three other men in fatigue uniform and wearing

bonnets. He reloaded his gun then jumped out of the car to seek cover, but he was hit in the right thigh, which rendered him

unconscious.[6]

The money Castro collected from Gelvez and Canapi allegedly amounted to P15,000,000, which were stored in two bags and a paper

bag. The two bags were kept in the car's compartment while the paper bag was hidden under his seat. The entire collection was

taken by their assailants. He also learned that their police escort, SPO3 Ricardo Gonzales, died on the spot, while another police

escort received three gunshots wounds. One of their drivers was also injured. He categorically denied that any of their assailants

were inside the courtroom. Neither could he identify them as their faces were concealed. [7] chan robles virtual law library

Witness Senen Santillan, a driver at the Montes Moveo Corporation, recalled that in the afternoon of 8 September 1995, he was

assigned to drive for Castro and his companion to Binondo. A convoy of four cars left the office and proceeded to Metrobank,

Binondo branch. Castro and his companion alighted to go inside the bank and they returned after a couple of minutes with Castro

toting a bag. He was told to open the compartment of the car, where Castro placed the bag. They proceeded to Equitable Bank,

where the two obtained another bag, which was also placed in the car's compartment. Before boarding the car, Castro also received

from a bank representative a paper bag which he placed beside his leg. On their way to Ermita, they were ambushed. He saw four

men get off a green car in front of them. The men, wearing green fatigue uniforms and bonnets, immediately fired at them. He dove

for cover, alighted from the car, and crawled under it. The gunfire went on for about five minutes. After the shootout, he saw that

some of his companions had been wounded. He also discovered that the money was gone. However, he denied if he could still

identify the malefactors.[8]

Witness PO3 Rodolfo de Castro was in the vicinity of the incident when he heard the gunshots. At the scene of the shootout, he saw

a man in a long-sleeved brown barong tagalog armed with a baby armalite. They exchanged fire. He described the suspect as

between 40 and 45 years old, about 5'6" and 150 pounds, with fair complexion and chinky eyes. The suspect escaped in a red car,

which he chased in vain. He was certain that there was no owner-type jeep or L-300 van involved in the shootout. [9]

Witness SPO3 Pio Inocencio was another policeman who arrived at the crime scene after the incident. He saw four cars parked one

after the other, all with multiple bullet holes. In the last car was an unidentified person, who apparently died on the spot. His team

made an ocular inspection, took pictures and gathered available evidence for laboratory analysis. Investigation revealed that the

suspects used four cars. He prepared a police report and a sketch [10] of the crime scene. Altogether, he submitted five progress

reports [11] on the case. [12]

The gist of the testimony of Mohammad Mamison is contained in the factual findings of the trial court which was earlier

quoted.cralaw

Witness Moises Tamayo was the National Bureau of Investigation (NBI) agent who took the statement of Mohammad Mamison in

relation to the incident of 8 September 1995, after the NBI assumed jurisdiction over the investigation of the case and Mamison's

involvement therein was determined. Tamayo was able to persuade Mamison to give a statement with the assistance of counsel,

whom Tamayo recommended. Mamison eventually signed two sworn statements which also bore counsel's signature, where he

identified accused-appellants as the perpetrators of the crime under investigation. Subsequently, AHMAD's home was raided,

resulting in the confiscation of unlicensed .38 and .45 revolvers and ammunition. Accused-appellants were eventually arrested and

were properly identified by Mamison. [13] chan robles virtual law library

On cross-examination, Tamayo admitted investigating a certain Halima Gulam a week after the shootout. She had informed him that

the participants of the crime were Mamison, Datu Jimmy and Datu Aries. Accused-appellants were apparently never mentioned by

her. She had also disclosed that on the day after the shootout, Mamison returned to his residence carrying a large brown envelope.

Accordingly, Gulam overheard Mamison and his companions discussing the division of their loot. He also confirmed that during his

investigation, Mamison never mentioned the names of accused-appellants. [14]

In the course of the trial, accused-appellants moved for the inhibition of Presiding Judge Perfecto A. S. Laguio, Jr., whom they

accused of being biased against people charged with theft and robbery. They alleged that the questions he addressed to the

witnesses were primarily aimed at assisting the prosecution and securing the accused-appellants' conviction. Under the

circumstances they could not be afforded a fair trial. The trial court, however, denied the motion for lack of merit.cralaw

After the presentation of the evidence for the prosecution, accused-appellants filed their demurrer to evidence, arguing that the

prosecution failed to establish the identity of the perpetrators of the crime and that the testimony of state witness Mohammad

Mamison was not credible as to warrant their conviction. The trial court likewise denied the same for lack of merit.cralaw

On the other hand, accused-appellants all raised the defense of alibi and established the following facts:

AHMAD was the administrator of a mosque in Bicutan, Taguig. In the afternoon of 8 September 1995, he went to Union Bank, United

Nations Avenue branch, Manila, to deposit P40,000, representing the church collection. He arrived at 2:30 p.m. and stayed until 3:20

p.m. He presented the bank's copy of the deposit slip [15] made in his name and under Savings Account No. 002-103895-8. The

lower portion of the deposit slip bore the bank's machine validation imprint "08SEP95 14:38:09." After making the deposit, he

exchanged pleasantries with Reynaldo Bandali, Union Bank Assistant Vice-President, as was his habit whenever he visits the bank.

Thereafter, he went home, arriving thereat at 5:00 p.m. [16]

AHMAD acknowledged that HASIM and ABUBAKAR are his relatives, whereas SAMSUDIN was a complete stranger to him. On 22

September 1995, he, HASIM and ABUBAKAR were arrested at his home and brought to the NBI for investigation. It was there that he

first met Mamison, who identified them as the perpetrators of a robbery committed in Intramuros, Manila, on 8 September 1995.

His second and last confrontation with Mamison was on the day the latter testified against them in court. He did not know Mamison

and he had no misunderstanding with him, so there was no reason why Mamison would implicate them in the crime. [17] chan

robles virtual law library

AHMAD's testimony was corroborated by Reynaldo Bandali, Assistant Vice President of Union Bank. Bandali joined the bank in 1990

as the bank's overseas remittance manager. In the afternoon of 8 September 1995, he was in the bank's United Nations Avenue

branch, Manila. He had just come from a meeting at about 2:30 p.m. when he saw AHMAD waiting by his office. AHMAD sought his

assistance in making a deposit since the queue was long. He accommodated AHMAD's request and even entertained him in his

office. AHMAD left the bank at about 3:20 p.m. He confirmed the bank's copy of the deposit slip [18] for that particular transaction.

He gave said copy to AHMAD's nephew upon learning that AHMAD was accused of the robbery that occurred that same afternoon.

He knew that it could help AHMAD prove his innocence. [19]

Accused-appellant HASIM was a security guard employed by the Action Force Security Agency. From 1993 to 1995 he was assigned

at the Manila Galleria Suites, located at the Ortigas Center, Pasig City. On the day of the incident in question, he was on duty, signing

in at 6:00 a.m. and only leaving at 7:30 p.m. Officer-in-Charge Pepito Alapatin, Chief Security Conrad Banal, Security Inspector Harold

Garcia as well, as his co-security guard Nicanor Armisa saw, him on duty that whole day. He acknowledged that AHMAD is his uncle,

with whom he lived. As to state witness Mamison, he admitted that he had known him for about a year since Mamison used to live

with his uncle. They never had any misunderstanding with him, so he cannot explain why he was linking them to the robbery. [20]

The testimony of HASIM was confirmed by Pepito Alapatin, Harold Garcia and Nicanor Armisa.cralaw

In the afternoon of 8 September 1995, Alapatin was at the Manila Galleria Suites to inspect the security force of which HASIM was a

member. He was certain that HASIM was at his post of assignment as his duty was from 7:00 a.m. to 7:00 p.m. on 8 September 1995.

It was routine for the security force to assemble 30 minutes prior to the assumption of their duty to verify their attendance. On the

date in question, HASIM was present for the assembly. [21]

As Internal Security Officer of the Manila Galleria Suites, Harold Garcia was tasked to inspect every two hours if the guards were at

their posts. HASIM was among the guards detailed at the hotel. Garcia attested that on 8 September 1995, HASIM arrived at the

hotel before 7:00 a.m. in time for the assembly briefing of the security force. He was certain that between 3 and 4 in the afternoon,

HASIM was at his post at the guest floor level after conducting his routine inspection. HASIM left the hotel only after 7:00 p.m. He

distinctly recalled that day because when he learned from the news that HASIM had been arrested, he knew it was impossible for

him to have been involved in the crime because HASIM was on duty the whole day of 8 September 1995. HASIM continued reporting

for work until the time of his arrest on the third week of September. [22]

On cross-examination, Garcia declared that it was impossible for HASIM to have left his post without the knowledge of hotel

personnel. He explained that apart from the two-hour routine inspection he conducted, each guard was required to make a personal

call every fifteen to thirty minutes to the security office. A missed call would alert the security office for an immediate investigation.

In addition, roving guards of the hotel conducted supplementary inspection. [23] chan robles virtual law library

Nicanor Armisa, a house detective of the Manila Galleria Suites, affirmed that HASIM was in Levels 23 and 24 of the hotel the whole

day of 8 September 1995.[24]

Accused-appellant ABUBAKAR, a resident of Taguig, was a water delivery boy for the mosque in their neighborhood. He lived with

his uncle AHMAD. HASIM is also his uncle. At about the time of the shootout in Intramuros, he was in the mosque with other

churchgoers. On 22 September, he was arrested by NBI agents for his alleged involvement in a recent hold-up. At the NBI

headquarters, he was identified as one of the perpetrators of the crime by Mamison, a stranger as far as he was concerned. He could

not offer any reason why Mamison would accuse him of a crime. He denied the accusation but he later opted to keep quiet after he

saw one of his companions being kicked by the agents. [25] He recalled that AHMAD left the house at around 2:00 that afternoon

and returned only at about 6:00 p.m. [26]

The defense presented Mosaydin Mamalangakay, Abdul Sisay and Kutin Gudal, barangay officials and neighbors of ABUBAKAR, to

corroborate the latter's alibi.[27]

On the other hand, accused-appellant SAMSUDIN testified that he was playing basketball in his hometown in Maguindanao in the

afternoon of 8 September 1995. Among the spectators were Barangay Captain Oti Lumpaw and a teacher, Zainudin Ampang. On 17

September 1995, he made his first trip to Manila. He presented an Aboitiz Superferry ticket [28] issued in his name and dated 17

September 1995. The ship left in the morning of said date and arrived in Manila on 19 September. Five days later, he was arrested in

his aunt's home in Taguig and brought to the NBI for his alleged participation in a robbery committed on 8 September 1995 in

Intramuros, Manila. It was there that he first met the rest of accused-appellants. [29]

Zainudin Ampang, [30] a public high school teacher and resident of Maguindanao, corroborated SAMSUDIN's testimony. SAMSUDIN

was his neighbor. In the afternoon of 8 September 1995, he saw SAMSUDIN playing basketball at the plaza. There were about a

hundred spectators then. Even in the succeeding days he would see SAMSUDIN playing basketball at the plaza. He denied knowing

the other accused-appellants. [31]

After the defense rested its case, the trial court rendered its decision [32] on 4 August 1999, the decretal portion of which reads as

follows:

WHEREFORE, this Court finds the accused, Ahmad Langalen y Demalen, Hasim Upam y Abubacar, Samsudin Talib y Limba and

Abubakar Daganas y Anggubala, guilty beyond reasonable doubt of the crime of highway robbery under PD 532 and are hereby

sentenced to suffer the penalty of death by lethal injection. The four accused are also ordered to pay the legal heirs of SPO3 Ricardo

Gonzales death compensation and moral damages in the respective sums of P50,000.00 and P500,000.00, and P13,600,000.00 actual

damages to the owner/s of VMG Money Changer with interest thereon at the legal rate from the filing of this case on October 16,

1995 until fully paid.cralaw

SO ORDERED. chan robles virtual law library

The trial court gave credence to the testimony of prosecution witness Mamison, who testified in a "straightforward, positive and

credible" manner. It further held that no improper motive could be ascribed to him to falsely testify against accused-appellants. On

the other hand, it rejected the latter's defense of alibi because it could not prevail over the positive testimony of Mamison. Finally,

the trial court opined that conspiracy among accused-appellants was properly established when they left together in Taguig and

proceeded to Manila to commit the heist.cralaw

The case is now before this Court for automatic review, pursuant to Article 47 of the Revised Penal Code, as amended by Section 22

of Republic Act No. 7659.cralaw

In their Appellants' Brief, accused-appellants raise the following errors allegedly committed by the trial court:

I. IN FINDING THAT THE TESTIMONY OF PROSECUTION'S SOLE "EYE-WITNESS" MAMISON, AS BEING STRAIGHT-FORWARD, POSITIVE

AND CREDIBLE; AND, THAT, MAMISON HAD NO IMPROPER MOTIVE TO FALSELY IMPLICATE THE FOUR (4) ACCUSED-APPELLANTS IN

THE CRIME CHARGED, OR HATCH UP THE STORY HE NARRATED TO THE COURT; chan robles virtual law library

II. IN NOT APPRECIATING THE TESTIMONY OF NBI AGENT MOISES B. TAMAYO AND THE AMBUSHED GUARDS WHICH CLEARLY

CONTRADICTS THE TESTIMONY OF THE PROSECUTION'S "EYE-WITNESS" MAMISON; and

III. IN NOT APPRECIATING THE EVIDENCE PRESENTED BY THE ACCUSED-APPELLANTS, CONSISTING OF NUMEROUS CREDIBLE

WITNESSES WHO ARE OF GOOD REPUTATION, UNQUESTIONED PROBITY, UNBIASED AND DISINTERESTED.cralaw

Accused-appellants assail the testimony of state witness as being inconsistent with the testimonies of the other witnesses for the

prosecution. In fact, it was Mamison who had a motive in implicating them to the crime. Mamison admitted that he acted as a look-

out. NBI Agent Tamayo, however, testified that based on his investigation, Mamison was among the plotters of the robbery along

with other named conspirators, none of whom included any of the accused-appellants. He also found out that after the shootout,

Mamison fled his residence, and an informant told him (Tamayo) that Mamison and his cohorts were discussing in Quiapo the

division of some loot. Accused-appellants argue that Mamison had to concoct a story and offer himself as a state witness to extricate

himself from being charged for the offense.cralaw

Accused-appellants further assert that there were other details Mamison mentioned in his testimony that were in conflict with the

testimony of the victims. Mamison claimed that the vehicles used by the malefactors were an owner-type jeep and an L-300 van;

that they were armed with hand guns and one rifle; and that they were wearing long-sleeved shirts and denim pants. [33]On the

other hand, the victims testified that there were about seven assailants who wore black bonnets and fatigue uniforms, all armed

with rifles. A red car and a green car were used as getaway vehicles. One witness even positively declared that none of the assailants

was in the courtroom. Another witness particularly described a suspect as in his early forties, with a huge belly, about 150 pounds,

with fair complexion and chinky eyes. He categorically denied in the presence of accused-appellants that said suspect was in the

courtroom. chan robles virtual law library

Thus, accused-appellants conclude that the glaring inconsistencies between the testimonies of the victims and that of Mamison put

the latter's credibility in question. It was only Mamison who alluded to them as the alleged perpetrators of the crime. Other than his

testimony, no other link was established by the prosecution to pin the crime on them. Therefore, accused-appellants invoke an

urgent need to reexamine the factual findings of the trial court, especially considering the penalty imposed.cralaw

Finally, accused-appellants maintain that their defense of alibi was sufficiently established by the testimonies of disinterested

persons of good reputation and unquestioned probity, as well as by the documentary evidence. The inevitable conclusion is that the

prosecution failed to prove their guilt beyond reasonable doubt. They must, therefore, be accorded their constitutional right to be

presumed innocent until the contrary is proved beyond moral certainty.cralaw

After a meticulous review of the records of this case and the evidence presented by the parties, we are convinced that the

prosecution, indeed, failed to prove by the required quantum of evidence the guilt of accused-appellants. Thus, we reverse the

challenged judgment and accordingly acquit them.cralaw

It bears emphasis that of the seven witnesses for the prosecution, only Mohammad Mamison implicated accused-appellants to the

crime charged. It has long been settled that when the issue is one of credibility of the witnesses, the appellate courts will generally

not disturb the findings of the trial court, which is in a better position to resolve the question after actually hearing the witnesses

and observing their deportment during the trial. This rule, however, admits of exceptions, such as when the evaluation was reached

arbitrarily or when the trial court ignored or failed to appreciate certain facts or circumstances of weight and substance which could

affect the result of the case. [34]

The exception exists in this case, and a scrutiny of Mamison's testimony easily confirms it. He was not a party in the plotting of the

heist; he only allegedly chanced upon accused-appellants as they were on their way to commit the crime. He was casually invited by

AHMAD to join them although he had no idea what they were up to. He was instructed to warn AHMAD of the presence of any

police from where he was dropped off. It was only later he realized that accused-appellants waylaid a convoy of vehicles. However,

he did not see the actual robbery as he immediately fled after hearing the gunshots. He was not heard from nor seen again until he

was called to an investigation. Yet, although he was the first to be investigated of those whom the law enforcers believed to be the

authors of the crime, the information in this case, which was filed on 16 October 1995, states that the cases against "MOHAMAD

MAMISON … is still pending preliminary investigation with the Department of Justice." The records fail to disclose that Mamison was

ever accused of the crime and later discharged as such on account of his utilization as a state witness.cralaw

Among Mamison's observations was that only two vehicles were used by accused-appellants, an owner-type jeep driven by AHMAD

and an L-300 van. But prosecution witness Senen Santillan declared that the four men who ambushed them got off from a green car.

Also prosecution witness Dante Castro described the assailants as wearing green fatigue uniforms with their faces concealed by

bonnets. Prosecution witness SPO3 Pio Inocencio was certain that no owner-type jeep or L-300 van was used in the heist. Finally,

Castro and Santillan candidly testified that none of those who ambushed them and ran away with the money were in the courtroom.

When they testified, all accused-appellants were inside the courtroom.cralaw

The foregoing observations strengthen the defense of alibi put up by accused-appellants. chan robles virtual law library

We have time and again ruled that alibi is the weakest defense as it is easy to fabricate and difficult to disprove. For alibi to prosper,

the accused must demonstrate by clear and convincing evidence that it was physically impossible for him to have been at the scene

of the crime at the time the same was committed. Moreover, it cannot prevail over the positive identification of the accused. [35]

In the case before us, accused-appellants, particularly AHMAD and HASIM, had sufficiently established that it was impossible for

them to have been at the scene of the crime at the time of its occurrence. Their alibi was corroborated by credible witnesses. Very

revealing is AHMAD's alibi that he was at the bank at the time of the robbery and shootout. He had the bank's deposit

slip [36]indicating the date and time the deposit was made, which was strengthened by the testimony of Union Bank Assistant Vice

President Reynaldo Bandali. We see no cogent reason why a high-ranking bank official would falsely testify in favor of an accused.

Moreover, no improper motive could be attributed to Banaldi.cralaw

The same can be said of HASIM, who was in his work station on the day of the robbery and shootout. His superiors attested to such

fact. Again, these are disinterested witnesses to whom no improper motive could be imputed.cralaw

Based on the testimony of Mamison, it was AHMAD who was the mastermind of and a direct participant in the robbery. Yet, based

on the evidence on record it is crystal clear that the alibi of AHMAD has been sufficiently established. This raises doubt on the

credibility of Mamison. His implication of AHMAD is definitely disputable.cralaw

Other than MAMISON's testimony, no other evidence was offered to further demonstrate the culpability of accused-appellants.

Indeed, we cannot affirm the conviction of accused-appellants when their guilt has not been established beyond reasonable

doubt. chan robles virtual law library

On a final note, we deplore some of the trial court's procedural omissions. There is an inexplicable neglect in accounting a thorough

summary of the versions of the evidence for the prosecution and the defense. The prosecution had seven witnesses while the

defense had eleven witnesses. Yet, the gist of its appreciation of facts of the shootout was primarily dependent on the testimony of

state witness Mamison. It disregarded certain details declared by the victims of the shootout which cast doubt on the accuracy of

Mamison's account. Moreover, the trial court peremptorily dismissed the defense of alibi of accused-appellants without disclosing

that their alibi was corroborated by several disinterested witnesses. In this regard, the trial court was either neglectful of its duty or

evidently lackadaisical or unmindful of the gravity of the offense. The trial court should have been more diligent and circumspect in

judging this case and meting out the death penalty.cralaw

WHEREFORE, the decision of 4 August 1999 of the Regional Trial Court of Manila, Branch 18, in Criminal Case No. 95-145780,

convicting accused-appellants AHMAD LANGALEN y DEMALEN a.k.a. "Kumander Kamlon," HASIM UPAM y ABUBACAR, SAMSUDIN

TALIB y LIMBA and ABUBAKAR DAGANAS y ANGGUBALA of violation of Presidential Decree No. 532, otherwise known as Anti-Piracy

and Anti-Highway Robbery Law of 1974, is hereby REVERSED and SET ASIDE. They are hereby ACQUITTED of the crime charged and

ORDERED immediately released from confinement unless their further detention is warranted by virtue of any lawful cause. The

Director of Bureau of Corrections is directed to submit a report of such release within five (5) days from notice hereof. chan robles

virtual law library

Costs de oficio.cralaw

SO ORDERED.cralaw

PORNOGRAPHY

D E C I S I O N

MENDOZA, J.:

At bench is a petition for certiorari under Rule 65 of the Rules of Court filed by petitioners Fredrik Felix P. Nogales, Giancarlo

P. Nogales, Rogelio P. Nogales, Melinda P. Nogales, Priscila B. Cabrera, Phil-Pacific Outsourcing Services Corp. and 3 x 8 Internet,

represented by its proprietor Michael Christopher A. Nogales (petitioners) against respondents People of the Philippines and

Presiding Judge Tita Bughao Alisuag (Judge Alisuag) of Branch 1, Regional Trial Court, Manila (RTC).

The petition challenges the August 19, 2009 Decision[1]

of the Court of Appeals (CA), in CA-G.R. SP No. 105968, which

affirmed with modification the August 6, 2008 Order[2]

of Judge Alisuag of the RTC; and its January 25, 2010 Resolution,[3]

which

denied petitioners’ motion for reconsideration.

THE FACTS:

On July 30, 2007, Special Investigator Garry Meñez (SI Meñez) of the National Bureau of Investigation (NBI) applied for a

search warrant before the RTC to authorize him and his fellow NBI agents or any peace officer to search the premises of petitioner

Phil-Pacific Outsourcing Services Corporation (Phil-Pacific) and to seize/confiscate and take into custody the items/articles/objects

enumerated in his application. The sworn application, docketed as Search Warrant Proceedings No. 07-11685,[4]

partially reads:

SWORN APPLICATION FOR A SEARCH WARRANT x x x x x x x x x That he has been informed, verily believes and personally verified that JUN NICOLAS, LOREN NUESTRA, FREDRICK FELIX P. NOGALES, MELINDA P. NOGALES, PRISCILA B. CABRERA and/or occupants PHIL-PACIFIC OUTSOURCING SERVICES CORP. located at Mezzanine Flr., Glorietta De Manila Building, 776 San Sebastian St., University Belt, Manila have in their possession/control and are concealed in the above-mentioned premises various material[s] used in the creation and selling of pornographic internet website, to wit:

1. Computer Sets 2. Television Sets 3. Internet Servers 4. Fax Machines 5. Pornographic Films and other Pornographic Materials 6. Web Cameras 7. Telephone Sets 8. Photocopying Machines 9. List of clients and 10. Other tools and materials used or intended to be used in the commission of the crime.

The application for Search Warrant No. 07-11685 of SI Meñez was acted upon by Judge Alisuag. On August 3, 2007, a

hearing was conducted wherein Judge Alisuag personally examined SI Meñez and two other witnesses in the form of searching

questions and their answers thereto were duly recorded by the court. The witnesses’ affidavits were also submitted and marked as

supporting evidence to the application for the issuance of a search warrant. On the same date of the hearing, the application was

granted and the corresponding Search Warrant,[5]

issued. The said search warrant is quoted as follows:

SEARCH WARRANT

TO: ANY PEACE OFFICER

It appearing to the satisfaction of the undersigned, after examining under oath applicant SI III GARY I. MEÑEZ of the Special Task Force Division, National Bureau of Investigation, and his witnesses, ISABEL CORTEZ y ANDRADE of 167 5

th Avenue, Caloocan City and MARK ANTHONY C. SEBASTIAN of No. 32 Arlegui Street, San Miguel

Quiapo, Manila that there are good reasons to believe that VIOLATION OF ARTICLE 201 OF THE REVISED PENAL CODE, AS AMENDED IN RELATION TO R.A. 8792 (ELECTRONIC COMMERCE ACT) has been committed and that JUN NICOLAS, LOREN NUESTRA, FREDERICK (sic) FELIX P. NOGALES, GIAN CARLO P. NOGALES, ROGELIO P. NOGALES, MELINDA P. NOGALES, PRISCILA B. CABRERA and/or OCCUPANTS OF PHIL. PACIFIC OUTSOURCING SERVICES CORPORATION located at Mezzanine Floor, Glorietta De Manila Building, 776 San Sebastian St., University Belt, Manila, have in their possession and control of the following:

1. Computer Sets 2. Television Sets 3. Internet Servers 4. Fax Machines 5. Pornographic Films and other Pornographic Materials 6. Web Cameras 7. Telephone Sets 8. Photocopying Machines 9. List of clients and 10. Other tools and materials used or intended to be used in the commission of the crime.

You are hereby commanded to make an immediate search any time of the DAY of the premises mentioned above

which is Mezzanine Floor, Glorietta De Manila Building, 776 San Sebastian St., University Belt, Manila and take possession of the following:

1. Computer Sets 2. Television Sets 3. Internet Servers 4. Fax Machines 5. Pornographic Films and other Pornographic Materials 6. Web Cameras 7. Telephone Sets 8. Photocopying Machines 9. List of clients and 10. Other tools and materials used or intended to be used in the commission of the crime.

and bring to this Court the said properties and persons to be dealt with as the law may direct. You are further directed to submit a return within ten (10) days from today.

On August 8, 2007, SI Meñez submitted a Return of Search Warrant[6]

to the RTC manifesting that in the morning of August

7, 2007, the operatives of the Special Task Force of the NBI implemented the said search warrant in an orderly and peaceful manner

in the presence of the occupants of the described premises and that the seized items were properly inventoried in the

Receipt/Inventory of Property Seized. The items seized were the following:

1. Ten (10) units of Central Processing Units (CPUs); 2. Ten (10) units of monitors; 3. Ten (10) units of keyboard; 4. Ten (10) units of mouse; and 5. Ten (10) units of AVRs.

The RTC then issued an order granting the prayer of SI Meñez to keep the seized items in the NBI evidence room and under

his custody with the undertaking to make said confiscated items available whenever the court would require them.

Aggrieved by the issuance of the said order, the named persons in the search warrant filed a Motion to Quash Search

Warrant and Return Seized Properties.[7]

In the said motion, petitioners cited the following grounds:

A. Respondents do not have programmers making, designing, maintaining, editing, storing, circulating, distributing, or selling said websites or the contents thereof;

B. Respondents do not have any website servers;

C. Respondents do not own the websites imputed to them, which are actually located outside

the Philippines, in foreign countries, and are owned by foreign companies in those countries;

D. The testimony of the witnesses presented by the NBI are contradicted by the facts of the case as

established by documentary evidence;

E. The NBI withheld verifiable information from the Honorable Court and took advantage of the

limited knowledge of courts in general in order to obtain the search warrant for their personal intentions;

F. The NBI raided the wrong establishment; and

G. The element of publicity is absent.

On December 26, 2007, the RTC denied the motion[8]

stating, among others, that:

1.) It cannot be said that publicity is not present. The Phil-Pacific Outsourcing Services Corp., is actually persuading its clients, thru its agents (call center agents), to log-on to the pornographic sites listed in its web page. In that manner, Phil-Pacific Outsourcing Services Corporation is advertising these pornographic web sites, and such advertisement is a form of publicity.

2.) Even if some of the listed items intended to be seized were not recovered from the place where the

search was made, it does not mean that there was no really crime being committed. As in fact, pornographic materials were found in some of the computers which were seized.

3.) In the same way that the names listed in the Search Warrant were not arrested or not in the premises subject of the search, it does not mean that there are no such persons existing nor there is no crime being committed.

4.) As a rule, Search Warrant may be issued upon existence of probable cause. “Probable cause for a

search is defined as such fact 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 reached.” Hence, in implementing a Search Warrant, what matters most is the presence of the items ought to be seized in the place to be searched, even in the absence of the authors of the crime committed.

5.) The Search Warrant was issued in accordance with Secs. 3 to 6, Rule 126 of the Revised Rules of

Court. Search Warrant may be quashed or invalidated if there is an impropriety in its issuance or irregularity in its enforcement. Absent such impropriety or irregularity, quashal is not warranted.

Undaunted, petitioners moved for the reconsideration of the said order on the following grounds: (a) the trial court erred

in holding that there was no impropriety or irregularity in the issuance of the search warrant; (b) the trial court erred in holding that

there was no irregularity in its enforcement; and (c) the trial court erred in holding that publicity was present.

On February 19, 2008, petitioners requested the RTC to issue a subpoena duces tecum ad testificandum to SI Meñez and the

witnesses Isabel Cortez and Mark Anthony Sebastian directing them to appear, bring the records evidencing publicity of

pornographic materials and testify in the hearing set on March 7, 2008.

Meanwhile, in a resolution dated February 21, 2008,[9]

the 3rd

Assistant City Prosecutor recommended that the complaint for

violation of Article 201[10]

of the Revised Penal Code (RPC) against petitioners be dismissed due to insufficiency of evidence and the

same was approved by the City Prosecutor. Hence, on May 6, 2008, petitioners filed a Supplemental Motion to Release Seized

Properties[11]

manifesting that the complaint against them was dismissed, and that, for said reason, the State had no more use of the

seized properties.

On August 6, 2008, the RTC issued the assailed second order,[12]

which denied the motion for reconsideration filed by

petitioners. The RTC, however, partially granted the prayer of petitioners. Judge Alisuag wrote:

Be it noted that the proceedings held by this Court when it heard the Application for Search Warrant by

NBI Special Investigator Meñez is very much different [from] the case resolved by the Office of the City Prosecutor. The case before the Office of the City Prosecutor, while the same [was] dismissed cannot be the ground to release the seized properties subject of the Search Warrant issued by the Court. When the Court issued the Search Warrant, indeed, it found probable cause in the issuance of the same, which is the only reason wherein Search Warrant may be issued.

On the case heard by the Office of the City Prosecutor, the Resolution has its own ground and reason to

dismiss it. x x x x x x x x x

That the subject of the Search Warrant which is now under the custody of the NBI [was] made subject of

the case and as well as the witnesses for that case which was resolved by the Office of the City Prosecutor is of no moment.

WHEREFORE, the Motion for Reconsideration is Denied.

The Motion to Release Seized Properties is partially granted.

Accordingly therefore, let the computer sets be hereby returned to the respondents. The CPU and all the

rest of the softwares containing obscene materials which were seized during the implementation of the valid Search Warrant are hereby retained in the possession of the National Bureau of Investigation thru applicant Special Investigator Garry J. Meñez.

SO ORDERED.

[13]

Not in conformity, petitioners sought relief with the CA via a special civil action for certiorari alleging that Judge Alisuag

committed grave abuse of discretion amounting to lack or excess of jurisdiction when she partially granted the motion of petitioners

for the release of the seized properties such that only the monitor sets were released but the CPUs and the softwares were retained

under the custody of the NBI.

The CA affirmed with modification the assailed August 6, 2008 Order of the RTC. Thus:

WHEREFORE, in view of all the foregoing premises, the assailed order issued by the respondent Judge on

August 6, 2008 is AFFIRMED with the MODIFICATION that the CPUs and softwares which were ordered to be retained by the NBI through SI Meñez shall be released in favor of the petitioners herein with the condition that the hard disk be removed from the CPUs and be destroyed. If the softwares are determined to be unlicensed or pirated copies, they shall be destroyed in the manner allowed by law.

SO ORDERED.

[14] [Underscoring supplied]

The CA explained:

1.) It is undisputed that the seized computer units contained obscene materials or pornographic files. The hard disk technically contains them but these files are susceptible to modification or limitation of status; thus, they can be erased or permanently deleted from the storage disk. In this peculiar case, the obscene materials or pornographic files are stored in such a way that they can be erased or deleted by formatting the hard disk without the necessity of destroying or burning the disk that contains them. By structure, the hard drive contains the hard disk and the hard drive can be found in the CPU. These obscene materials or pornographic files are only stored files of the CPU and do not permanently form part of the CPU which would call for the destruction or much less retention of the same.

2.) Notwithstanding, with the advancement of technology, there are means developed to retrieve files

from a formatted hard disk, thus, the removal of the hard disk from the CPU is the reliable manner to permanently remove the obscene or pornographic files. With regard to the softwares confiscated and also ordered to be retained by the NBI, nothing in the evidence presented by the respondents shows that these softwares are pornographic tools or program customized just for creating obscene materials. There are softwares which may be used for licit activities like photograph enhancing or video editing and there are thousands of softwares that have legitimate uses. It would be different if the confiscated softwares are pirated softwares contained in compact discs or the pre-installed softwares have no license or not registered; then, the NBI may retain them. In the particular circumstances of this case, the return of the CPUs and softwares would better serve the purposes of justice and expediency.

3.) The responsibilities of the magistrate do not end with the granting of the warrant but extend to the

custody of the articles seized. In exercising custody over these articles, the property rights of the owner should be balanced with the social need to preserve evidence which will be used in the prosecution of a case. In the instant case, the complaint had been dismissed by the prosecutor for insufficiency of evidence. Thus, the court had been left with the custody of highly depreciable merchandise. More importantly, these highly depreciable articles would have been superfluous to be retained for the following reasons: (1) it was found by the prosecutor that there was no sufficient evidence to prove that the petitioners violated Article 201 of the Revised Penal Code in relation to

R.A. 8792 (Electronic Commerce Act); (2) the obscene materials or pornographic files can be deleted by formatting or removing the hard disk from the CPUs without destroying the entire CPU; and (3) the petitioners did not dispute that the files found in the seized items were obscene or pornographic but the said devices are not obscene or illegal per se. Hence, where the purpose of presenting as evidence the articles seized is no longer served, there is no justification for severely curtailing the rights of a person to his property.

Petitioners filed a motion for reconsideration but it was denied in a resolution dated January 25, 2010.[15]

Undeterred, petitioners filed a petition for certiorari[16]

with this Court anchored on the following:

GROUNDS:

6.1. The decision by the Court of Appeals affirming the decision of the respondent trial judge constitutes grave abuse of discretion amounting to lack or excess of jurisdiction, as it violates the constitutional proscription against confiscation of property without due process of law, and there is no appeal nor any plain, speedy or adequate remedy in the ordinary course of law.

6.2. Since the case involves pornography accessible in the internet, this is a case of first impression and

current importance.[17]

[Emphases ours]

ISSUE

Whether or not there was grave abuse of discretion on the part of the CA in ordering the removal and destruction of the

hard disks containing the pornographic and obscene materials.

THE COURT’S RULING

Petitioners argue that there is no evidence showing that they were the source of pornographic printouts presented by the NBI

to the RTC or to the City Prosecutor of Manila in I.S. No. 07H-13530. Since the hard disks in their computers are not illegal per

se unlike shabu, opium, counterfeit money, or pornographic magazines, said merchandise are lawful as they are being used in the

ordinary course of business, the destruction of which would violate not only procedural, but substantive due process. [18]

The argument of petitioners is totally misplaced considering the undisputed fact that the seized computer units contained

obscene materials or pornographic files. Had it been otherwise, then, petitioners’ argument would have been meritorious as there

could be no basis for destroying the hard disks of petitioners’ computer units.

While it may be true that the criminal case for violation of Article 201 of the Revised Penal Code was dismissed as there was

no concrete and strong evidence pointing to them as the direct source of the subject pornographic materials, it cannot be used as

basis to recover the confiscated hard disks. At the risk of being repetitious, it appearsundisputed that the seized computer units

belonging to them contained obscene materials or pornographic files. Clearly, petitioners had no legitimate expectation of

protection of their supposed property rights.

The CA is correct in stating that the removal of the hard disk from the CPU is a reliable way of permanently removing the

obscene or pornographic files. Significantly, Presidential Decree (PD) No. 969 is explicit. Thus: Sec. 2. Disposition of the Prohibited Articles. The disposition of the literature, films, prints, engravings, sculptures, paintings, or other materials involved in the violation referred to in Section 1 hereof shall be governed by the following rules:

a. Upon conviction of the offender, to be forfeited in favor of the government to be destroyed.

b. Where the criminal case against any violator of this decree results in an acquittal, the obscene/immoral literature, films, prints, engravings, sculpture, paintings or other materials and other articles involved in the violation referred to in Section 1 hereof shall nevertheless be forfeited in favor of the government to be destroyed, after forfeiture proceedings conducted by the Chief of Constabulary. [Emphasis and underscoring supplied]

Clearly, the provision directs the forfeiture of all materials involved in violation of the subject law. The CA was lenient with

petitioners in modifying the ruling of the RTC in that the CPUs and softwares, which were initially ordered to be retained by the NBI,

should be released in their favor with only the hard disk removed from the CPUs and destroyed. If the softwares are determined to

be violative of Article 201 of the RPC, unlicensed or pirated, they should also be forfeited and destroyed in the manner allowed by

law. The law is clear. Only licensed softwares that can be used for legitimate purposes should be returned to petitioners.

To stress, P.D. No. 969 mandates the forfeiture and destruction of pornographic materials involved in the violation of

Article 201 of the Revised Penal Code, even if the accused was acquitted.

Taking into account all the circumstances of this case, the Court holds that the destruction of the hard disks and the

softwares used in any way in the violation of the subject law addresses the purpose of minimizing if not totally eradicating

pornography. This will serve as a lesson for those engaged in any way in the proliferation of pornography or obscenity in this country.

The Court is not unmindful of the concerns of petitioners but their supposed property rights must be balanced with the welfare of the

public in general.

WHEREFORE, the petition is DENIED. The August 19, 2009 Court of Appeals Decision is AFFIRMED WITH

MODIFICATION in that only the CPUs and those softwares determined to be licensed and used for legitimate purposes shall be

returned in favor of the petitioners. The hard disk drives containing the pornographic materials and the softwares used in any way in

violation of Article 201 of the Revised Penal Code, unlicensed or pirated shall be forfeited in favor of the Government and destroyed.

SO ORDERED.

PLAGIARISM

The newest member of the Supreme Court has criticized her colleagues for exonerating Associate Justice Mariano del Castillo from allegations that he plagiarized portions of a ruling on World War II comfort women. In a strongly-worded dissenting opinion made public on Monday, Supreme Court Associate Justice Maria Lourdes Sereno said the court will be remembered for saying Del Castillo did not commit plagiarism because there was "no malicious intent" to pass off someone else's works as his own. Sereno added that the ruling of the court's majority has caused "unimaginable problems" for the Philippine academe. She explained decisions on future cases of plagiarism committed by students will be based on the court's ruling that malicious intent must be present to constitute plagiarism. "Unless reconsidered, this Court would unfortunately be remembered as the Court that made 'malicious intent' an indispensable element of plagiarism and that made computer-keying errors an exculpatory fact in charges of plagiarism, without clarifying whether its ruling applies only to situations of judicial decision-making or to other written intellectual activity," said Sereno. "It will also weaken this Court’s disciplinary authority ─ the essence of which proceeds from its moral authority ─ over the bench and bar. In a real sense, this Court has rendered tenuous its ability to positively educate and influence the future of intellectual and academic discourse," she added. Sereno is the youngest member of the high tribunal and is the first appointee of President Benigno Aquino III, who assumed office June 30 this year, to the high court. Majority's ruling

Ten of the Supreme Court's 15-member bench voted to clear Del Castillo.

Those who voted to absolve Del Castillo were Chief Justice Renato Corona, Associate Justices Presbitero Velasco Jr., Eduardo

Nachura, Teresita Leonardo-de Castro, Arturo Brion, Lucas Bersamin, Roberto Abad, Martin Villarama Jr., Jose Perez, and Jose

Mendoza.

Only Sereno and Associate Justice Conchita Carpio-Morales dissented, with the latter joining in the former's dissenting opinion.

Associate Justices Antonio Carpio and Diosdado Peralta did not participate in the voting because they were on official leave.

" It's not Microsoft Word's fault"

The sources from where Del Castillo allegedly borrowed without proper attribution were “A Fiduciary of Theory of Jus Cogens" by

Evan Criddle and Evan Fox-Decent, "Breaking the Silence on Rape as an International Crime" by Mark Ellis, and "Enforcing Erga

Omnes Obligations in International Law" by Christian Tams.

In the decision, the majority also said Del Castillo cannot be faulted because the attributions for the allegedly plagiarized material

were merely “accidentally deleted" by the magistrate's court researcher.

The court also said it was not Del Castillo's or his researcher's fault that Miscrosoft Word, the program used in writing the decision,

cannot detect "copied" research material without the proper attributions.

"Microsoft Word program does not have a function that raises an alarm when original materials are cut up or pruned. The portions

that remain simply blend in with the rest of the manuscript, adjusting the footnote number and removing any clue that what should

stick together had just been severed," the Supreme Court said.

But the court's findings did not sit well with Sereno.

In her dissenting opinion, Sereno said there is no software that will input the quotation marks at the beginning and end of passages

lifted verbatim. "Neither is there a built-in software alarm that sounds every time attribution marks or citations are deleted," she

said.

Not hypocrites

Sereno likewise castigated her colleagues who said Del Castillo's critics were "hypocrites who believe that the courts should be as

error-free as they themselves are."

For her, it is not hypocrisy to point out plagiarism in promoting honesty, especially in the judiciary.

"To conclude [it as hypocrisy] is to condemn wholesale all the academic thesis committees, student disciplinary tribunals and

editorial boards who have made it their business to ensure that no plagiarism is tolerated in their institutions and industry," said

Sereno.

Sereno: Plagiarism was committed

The magistrate then cited Section 184 of the Intellectual Property Code of the Philippines, which provides that there is no

infringement of copyright in the use of another's work "provided that the source and the name of the author, if appearing on the

work, are mentioned."

Sereno said Del Castillo committed plagiarism because of the outright fact that the borrowed material were not properly attributed

to their sources.

"Plagiarism thus does not consist solely of using the work of others in one's own work, but of the former in conjunction with the

failure to attribute said work to its rightful owner and thereby, as in the case of written work, misrepresenting the work of another

as one's own," she said.

She also said any claim of a lack of malicious intent does not "change the characterization of the act as plagiarism.

Sereno then urged Del Castillo to admit he committed plagiarism and to apologize to the foreign authors whose words he borrowed

in his ruling. She also said the court should issue a corrected ruling on comfort women in the form of a "corrigendum." - KBK,

GMANews.TVThe newest member of the Supreme Court has criticized her colleagues for exonerating Associate Justice Mariano del

Castillo from allegations that he plagiarized portions of a ruling on World War II comfort women.

In a strongly-worded dissenting opinion made public on Monday, Supreme Court Associate Justice Maria Lourdes Sereno said the

court will be remembered for saying Del Castillo did not commit plagiarism because there was "no malicious intent" to pass off

someone else's works as his own.

Sereno added that the ruling of the court's majority has caused "unimaginable problems" for the Philippine academe. She explained

decisions on future cases of plagiarism committed by students will be based on the court's ruling that malicious intent must be

present to constitute plagiarism.

"Unless reconsidered, this Court would unfortunately be remembered as the Court that made 'malicious intent' an indispensable

element of plagiarism and that made computer-keying errors an exculpatory fact in charges of plagiarism, without clarifying whether

its ruling applies only to situations of judicial decision-making or to other written intellectual activity," said Sereno.

"It will also weaken this Court’s disciplinary authority ─ the essence of which proceeds from its moral authority ─ over the bench and

bar. In a real sense, this Court has rendered tenuous its ability to positively educate and influence the future of intellectual and

academic discourse," she added.

Sereno is the youngest member of the high tribunal and is the first appointee of President Benigno Aquino III, who assumed office

June 30 this year, to the high court.

Majority's ruling

Ten of the Supreme Court's 15-member bench voted to clear Del Castillo.

Those who voted to absolve Del Castillo were Chief Justice Renato Corona, Associate Justices Presbitero Velasco Jr., Eduardo

Nachura, Teresita Leonardo-de Castro, Arturo Brion, Lucas Bersamin, Roberto Abad, Martin Villarama Jr., Jose Perez, and Jose

Mendoza.

Only Sereno and Associate Justice Conchita Carpio-Morales dissented, with the latter joining in the former's dissenting opinion.

Associate Justices Antonio Carpio and Diosdado Peralta did not participate in the voting because they were on official leave.

" It's not Microsoft Word's fault"

The sources from where Del Castillo allegedly borrowed without proper attribution were “A Fiduciary of Theory of Jus Cogens" by

Evan Criddle and Evan Fox-Decent, "Breaking the Silence on Rape as an International Crime" by Mark Ellis, and "Enforcing Erga

Omnes Obligations in International Law" by Christian Tams.

In the decision, the majority also said Del Castillo cannot be faulted because the attributions for the allegedly plagiarized material

were merely “accidentally deleted" by the magistrate's court researcher.

The court also said it was not Del Castillo's or his researcher's fault that Miscrosoft Word, the program used in writing the decision,

cannot detect "copied" research material without the proper attributions.

"Microsoft Word program does not have a function that raises an alarm when original materials are cut up or pruned. The portions

that remain simply blend in with the rest of the manuscript, adjusting the footnote number and removing any clue that what should

stick together had just been severed," the Supreme Court said.

But the court's findings did not sit well with Sereno.

In her dissenting opinion, Sereno said there is no software that will input the quotation marks at the beginning and end of passages

lifted verbatim. "Neither is there a built-in software alarm that sounds every time attribution marks or citations are deleted," she

said.

Not hypocrites

Sereno likewise castigated her colleagues who said Del Castillo's critics were "hypocrites who believe that the courts should be as

error-free as they themselves are."

For her, it is not hypocrisy to point out plagiarism in promoting honesty, especially in the judiciary.

"To conclude [it as hypocrisy] is to condemn wholesale all the academic thesis committees, student disciplinary tribunals and

editorial boards who have made it their business to ensure that no plagiarism is tolerated in their institutions and industry," said

Sereno.

Sereno: Plagiarism was committed

The magistrate then cited Section 184 of the Intellectual Property Code of the Philippines, which provides that there is no

infringement of copyright in the use of another's work "provided that the source and the name of the author, if appearing on the

work, are mentioned."

Sereno said Del Castillo committed plagiarism because of the outright fact that the borrowed material were not properly attributed

to their sources.

"Plagiarism thus does not consist solely of using the work of others in one's own work, but of the former in conjunction with the

failure to attribute said work to its rightful owner and thereby, as in the case of written work, misrepresenting the work of another

as one's own," she said.

She also said any claim of a lack of malicious intent does not "change the characterization of the act as plagiarism.

Sereno then urged Del Castillo to admit he committed plagiarism and to apologize to the foreign authors whose words he borrowed

in his ruling. She also said the court should issue a corrected ruling on comfort women in the form of a "corrigendum." - KBK,

GMANews.TV