UPDATED
SPECIAL PENAL LAWS
ANTI-MONEY LAUNDERING ACT OF 2001
(Republic Act No. 9160)
Background:
Immediate Impetus for Passage of the Act:
Imposition if a sanction at the behest of the Financial Action Task Force (FATF), the Paris based Money-laundering watchdog of the Group of 7 (OECD):
(a) Isolation of all incoming and outgoing Philippine transaction, including transfer of Philippine transactions from the computerized system to manual process;
(b) Imposition of nearly hefty documentary and regulatory requirements for investments into the Philippines.
WHAT ARE THE TRANSACTIONS COVERED BY ANTI-MONEY LAUNDERING ACT
In excess of P4.0 Million, for single, series, or combination of transactions, within 5 consecutive banking days.
EXCEPT THOSE:
(i) With properly identified client, when amount commensurate with business or financial capacity of such client; and
(ii) Those with an underlying legal or trade obligation, purpose, origin or economic justification.
INSTITUTIONS COVERED BY ANTI-MONEY LAUNDERING ACT
(a) Banks and other entities, their subsidiaries and affiliates, supervised/regulated by BSP;
(b) Insurance companies and other entities supervised regulated by Insurance Commissioner;
(c) SEC supervised/regulated:
- Securities dealers, brokers, salesman, investment houses, and other entities managing securities or rendering services as investment agents, advisor or consultants;
- Mutual funds, closed-end investment companies, common trust funds, pre-need companies, and other similar entities;
- Foreign exchange corporations, money changers, money payment, remittance, and transfer companies, and other similar entities; and
- Other entities administering/dealing in currency, commodities or financial derivatives based thereon, valuable objects, cash substitutes and other similar monetary instruments or property.
OBLIGATIONS OF INSTITUTIONS COVERED BY ANTI-MONEY LAUNDERING ACT
(a) Establish and record, and maintain a system of verifying, the true identities of clients, including the legal existence and organizational structure of a corporate client, and their representative, based on official documents;
(b) Keep records for five (5) years;
(c) Report "covered transactions" to Anti- Money Laundering Council, within five (5) working days from occurrence, without thereby violating Secrecy of Bank Deposit Act, FCDU Law, and the General Banking Law of 2000'
BUT: Cannot otherwise communicate to any person or media, fact of report covered transaction, or the contents of report.
ALSO: Fact of reporting to Anti- Money Laundering Council cannot also be published/aired by mass media, electronic mail, or other similar devices.
(d) Prohibited: Anonymous accounts, accounts under fictitious names and all
other similar accounts.
HOWEVER: numbered accounts allowed.
(e) Bangko Sentral ng Pilipinas may conduct annual testing of banking institutions solely limited to the determination of the existence and true identity of the owners of such account.
MONEY-LAUNDERING CRIME
Committed when the proceeds of an "unlawful activity" are transacted to make them appear to have originated from legitimate sources, by the following acts:
(a) Transacting or attempting to transact, with monetary instrument or
property, knowing it represents/involves/relates to proceeds of any "unlawful
activity."
(b) Facilitating money-laundering referred to in item (a) above, by knowingly
performing or failing to perform an act;
(c) Failing to disclose and file report with Anti-Money Laundering Council of
any monetary instrument or property as required under the law.
UNLAWFUL ACTIVITIES
Any act or omission or series or combination thereof, involving or having relation to the following:
1. Kidnapping for ransom 2. Drug trafficking
3. Graft and corrupt practices 4. Plunder
5. Robbery and extortion 6. Jueteng and masiao 7. Piracy on the high seas 8. Qualified theft
9. Swindling 10. Smuggling
11. Violations of the E-Commerce Act of 2000
12. Hijacking, destructive arson and murder, including acts of terrorism against non-combatant persons and similar targets
13. Fraudulent practices under the Securities Regulation Code of 2000
14. Felonies or offenses of similar nature that are punishable under the penal laws of other countries.
NOTE:
(i) There can be separate convictions for money-laundering offense and unlawful activity constituting it
(ii) Unlawful activity shall be given precedence over money laundering charge, without prejudice to freezing and other remedies provided by Act.
JURISDICTION
(i) "All cases on money laundering" shall be within the jurisdiction of Regional Trial Courts (RTC);
(ii) But those committed by public officers and private persons in conspiracy with such public officers shall be within the jurisdiction of Sandiganbayan.
POLICY AGAINST POLITICAL HARRASSMENT
No money-laundering case can be filed, nor can there freeze of account, against any candidate for public office during an election campaign.
PENALTIES AND OTHER CONSEQUENCES
(a) Fines and imprisonment for conviction of money-laundering offenses; (b) Civil and Criminal forfeiture of money instrument or property for any money laundering offense;
(c) Convicted offender to pay an amount equal to value of monetary instrument or property ordered forfeited when order of forfeiture cannot be effected.
FREEZE OF ACCOUNT
(a) Anti-Money Laundering Council, on determining probable cause that any account is in anyway related to an unlawful activity, any issue order to freeze, effective immediately and for a period not exceeding 15 days;
(b) Freeze order will bring simultaneous notice to depositor, who will have 72 hours to explain why order should be lifted.
(c) Anti-Money Laundering Council has 72 hours to dispose of depositor's explanation, and if it fails within 72 hours to act, freeze order shall automatically be dissolved.
(d) Freeze order may be extended beyond 15 days only with court order, but 15-day period tolled pending the court's decision to extend.
(e) Only Court of Appeals or Supreme Court can issue Temporary Restraining Order or writ of injunction on freeze order
EXAMINATION OF ACCOUNTS
(a) Notwithstanding provisions on secrecy of bank deposit account to the contrary, Anti-Money Laundering Council may seek court order to inquire into or examine a particular deposit or investment with a banking or non-bank financial institution. (b) Basis of Order: Upon probable cause that the deposits or investments are in any
way related to a money-laundering offense.
(c) There can be no examination of deposits or investments made prior to the effectivity of the Act
ANTI-MONEY LAUNDERING COUNCIL
COMPOSITION OF ANTI-MONEY LAUNDERING COUNCIL
. Bangko Sentral ng Pilipinas Governor, as Anti-Money Laundering Chairman
. Insurance Commission Chairman
. Security and Exchange Commission Chairman
POWERS OF ANTI-MONEY LAUNDERING COUNCIL
(a) Require and receive covered transactions reports;
(b) Order appropriate Supervising Authority or covered institution, to determine true identity or owner of money instrument or property subject of a covered transaction, when on basis of substantial evidence, to be the proceeds of unlawful activity.
(c) Institute forfeiture and other remedial proceedings through the Solicitor General;
(d) File complaints with Department of Justice or Ombudsman for prosecution of money-laundering offenses;
(e) Initiate investigation of covered transactions, money-laundering activities and other violations of the Act;
(f) Freeze any monetary instrument or property alleged to be proceeds of any unlawful activity;
(g) Implement measures to counteract money laundering;
(h) To assist foreign governments, and itself seek such assistance anti-money laundering operations;
(i) Develop educational programs on the pernicious effects of money laundering;
(j) Enlist assistance of government agencies and corporations in undertaking anti-money laundering operations;
(k) Seek court order to inquire into or examine any particular deposit with any banking or non-bank financial institution; and
(l) Issue implementing rules and regulations, subject to the review of a congressional oversight committee.
INDETERMINATE SENTENCE LAW
(Act No. 4103 as amended by Act No. 4225)
WHEN ACCUSED IS SENTENCED TO RECLUSION PERPETUA, HE IS NOT ENTITLED TO THE APPLICATION FOR INDETERMINATE SENTENCE LAW
Accused-appellant cannot avail of the benefits of the Indeterminate Sentence Law because Indeterminate Sentence Law does not apply to persons convicted of offenses punishable with reclusion perpetua. (People v. Aquino; GR 125906, Jan. 16, ’98)
APPLICATION OF INDETERMINATE SENTENCE LAW EXPLAINED
In the case of People vs. Gabres, the Court has had occasion to so state that —
"Under the Indeterminate Sentence Law, the maximum term of the penalty shall be 'that which, in view of the attending circumstances, could be properly imposed' under the Revised Penal Code, and the minimum shall be within the range of the penalty next lower to that prescribed' for the offense. The penalty next lower should be based on the penalty prescribed by the Code for the offense, without first considering any modifying circumstance attendant to the commission of the crime. The determination of the minimum penalty is left by law to the sound discretion of the court and it can be anywhere within the range of the penalty next lower without any reference to the periods into which it might be subdivided. The modifying circumstances are considered only in the imposition of the maximum term of the indeterminate sentence.
"The fact that the amounts involved in the instant case exceed P22,000.00 should not be considered in the initial determination of the indeterminate penalty; instead, the matter should be so taken as analogous to modifying circumstances in the imposition of the maximum term of the full indeterminate sentence. This interpretation of the law accords with the rule that penal laws should be construed in favor of the accused. Since the penalty prescribed by law for the estafa charge against accused-appellant is prision correccional maximum to prision mayor minimum, the penalty next lower would then be prision correccional minimum to medium. Thus, the minimum term of the indeterminate sentence should be anywhere within six (6) months and one (1) day to four (4) years and two (2) months . . ."
INDETERMINATE SENTENCE LAW; WHEN APPLICABLE.
The final query is whether or not the Indeterminate Sentence Law is applicable to the case now before us. Apparently it does, since drug offenses are not included in nor has appellant committed any act which would put him within the exceptions to said law and the penalty to be imposed does not involve reclusion perpetua or death, provided, of course, that the penalty as ultimately resolved will exceed one year of imprisonment. The more important aspect, however, is how the indeterminate sentence shall be ascertained. It is true that Section 1 of said law, after providing for indeterminate sentence for an offense under the Revised Penal Code, states that "if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same" We hold that this quoted portion of the section indubitably refers to an offense under a special law wherein the penalty imposed was not taken from and is without reference to the Revised Penal Code, as discussed in the preceding illustrations, such that it may be said that the "offense is punished" under that law. There can be no sensible debate that the aforequoted rule on indeterminate sentence for offenses under special laws was necessary because of the nature of the former type of penalties under said laws which were not included or contemplated in the scale of penalties in Article 71 of the Code, hence there could be no minimum "within the range of the penalty next lower to that prescribed by the Code for the offense," as is the rule for felonies therein. In the illustrative examples of penalties in special laws hereinbefore provided, this rule applied, and would still apply, only to the first and last examples. Furthermore, considering the vintage of Act No. 4103 as earlier noted, this holding is but an application and is justified under the rule of contemporanea expositio. Republic Act No. 6425, as now amended by Republic Act No. 7659, has unqualifiedly adopted the penalties under the Revised Penal Code in their technical terms, hence with their technical signification and effects. In fact, for purposes of determining the maximum of said sentence, we have applied the provisions of the amended Section 20 of said law to arrive at prision correccional and Article 64 of the Code to impose the same in the medium period. Such offense, although provided for in a special law, is now in the effect punished by and under the Revised Penal Code. Correlatively, to determine the minimum, we must apply the first part of the aforesaid Section 1 which directs that "in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense." (Emphasis ours.) A divergent pedantic application would not only be out of context but also an admission of the hornbook maxim that qui haeret in litera haeret in cortice. Fortunately, this Court has never gone only skin-deep in its construction of Act No. 4103 by a mere literal appreciation of its provisions. Thus, with regard to the phrase in Section 2 thereof excepting from its coverage "persons convicted of offenses punished with death penalty or life imprisonment," we have held that what is considered is the penalty actually imposed and not the penalty imposable under the law, and that reclusion
perpetua is likewise embraced therein although what the law states is "life imprisonment." What irresistibly emerges from the preceding disquisition, therefore, is that under the concurrence of the principles of literal interpretation, which have been rationalized by comparative decisions of this Court; of historical interpretation, as explicated by the antecedents of the law and related to contemporaneous legislation; and of structural interpretation, considering the interrelation of the penalties in the Code as supplemented by Act No. 4103 in an integrated scheme of penalties, it follows that the minimum of the indeterminate sentence in this case shall be the penalty next lower to that prescribed for the offense. Thereby we shall have interpreted the seeming ambiguity in Section 1 of Act No. 4103 in such a way as to harmonize laws with laws, which is the best mode of interpretation.
(People v Martin Simon)
WHEN INDETERMINATE SENTENCE LAW IS NOT APPLICABLE
a. Offenses punished by death or life imprisonment.
b. Those convicted of treason (Art. 114), conspiracy or proposal to commit treason (Art. 115).
c. Those convicted of misprision of treason (Art. 116), rebellion (Art. 134), sedition (Art. 139), or espionage (Art. 117).
d. Those convicted of piracy (Art. 122). e. Habitual delinquents (Art. 62, par. 5).
f. Those who escaped from confinement or those who evaded sentence.
g. Those granted conditional pardon and who violated the terms of the same (Art. 159). (People v. Corral, 74 Phil. 359).
h. Those whose maximum period of imprisonment does not exceed one year.
i. Those who are already serving final judgment upon the approval of the Indeterminate Sentence Law.
RECIDIVISTS ARE ENTITLED TO INDETERMINATE SENTENCE
Recidivists are entitled to an indeterminate sentence. (People v. Jaramilla, L-28547, Feb. 22, 1974). Offender is not disqualified to avail of the benefits of the law even if the crime is committed while he is on parole.
(People v. Clareon, CA 78 O.G. 6701, Nov. 19, 1982).
(Bacar v. De Guzman)
ACTUAL DETENTION OR LOCKING UP AN ESSENTIAL ELEMENT OF KIDNAPPING
Actual detention or "locking up" is the primary element of kidnapping. If the evidence does not adequately prove this element, the accused cannot be held liable for kidnapping. In the present case, the prosecution merely proved that apellant forcibly dragged the victim toward
a place only he knew. There being no actual detention or confinement, the appellant may be convicted only of grave coercion.
(People -vs- Astorga; GGR 110097, December 22, 1997)
ELEMENTS OF GRAVE COERCION
Grave Coercion or coaccion grave has three elements:
a. that any person is prevented by another from doing something not prohibited by law, or compelled to do something against his or her will, be it right or wrong;
b. that the prevention or compulsion is effected by violence, either by material force or such a display of it as would produce intimidation and, consequently, control over the will of the offended party; and
c. that the person who restrains the will and liberty of another has no right to do so or, in other words, that the restraint is not made under authority of a law or in the exercise of any lawful right.
(People -vs- Astorga)
A PERSON MAY BE CONVICTED OF GRAVE COERCION ALTHOUGH THE CHARGE IS KIDNAPPING
The Information, dated March 24, 1992, filed against Astorga contains sufficient allegations constituting grave coercion, the elements of which were sufficiently proved by the prosecution. Hence, a conviction for said crime is appropriate under Section 4, Rule 120 of the 1988 Rules on Criminal Procedure.
(People -vs- Astorga)
WHEN THE ACCUSED IS AN ACCOMPLICE AND NOT A PRINCIPAL
The evidence merely points out that Corbes looked for a jeep to be used as getaway vehicle of the robbers and, to that end, he intentionally sought out and convinced Manuel Vergel to act as driver. Moreover, he went with Vergel and Benny to Caloocan City where the Robbery was staged. We have also held that the liability of one whose participation was limited to looking for a banca and providing one to a gang of bank robbers, or one who went with the actual perpetrators of a crime without conspiring with them, is only that of an accomplice. Where the quantum of proof required to established conspiracy is lacking, the doubt created as to whether accused acted as principal or accomplice will always be resolved in favor of the milder form of liability, that of a mere accomplice. Besides, in several cases wherein the Court confirmed the existence of conspiracy, some accused were held liable as mere accomplices only because their role in the commission of the crime was not indispensable; in other words, minor. Courts sometimes draw the inference of guilty participation in the criminal design from concerted acts in the consummation of the criminal act
and from the form and manner in which assistance is rendered. To reiterate, in case of doubt, the courts naturally lean to the milder form of responsibility.
(People -vs- Corbes; GR 113470, Mar. 26, 1997)
WHEN IS DONE IN CASE OF ROBBERY BUT UNKNOWN TO OTHERS ONE MAY NOT BE HELD GUILTY OF ROBBERY WITH HOMICIDE
Furthermore, we reduce appellants' liability to the crime of robbery only. It was not established by the evidence that the other accused, who are at large, had agreed to kill if necessary to carry out successfully the plan to rob. On the contrary, the records show that one of the robbers berated the gunman for having shot the security guard. Therefore, what appellants may be said to have joined was merely the criminal design to rob, which makes them accomplices. Their complicity must accordingly be limited to the robbery, not to the killing of Timoteo Palicpic. Waiting only at the parked jeep at 8th Avenue could not have given them the opportunity to prevent the
killing, as is required of one seeking relief from liability for assaults committed during the robbery. The Court had occasion to rule that the jeep driver, who was unaware of the killing perpetrated inside the building as he stayed always near his jeep, could not be deemed a co-conspirator in the killing of the guards, as the killing was not part of the original plan but arose only during the exigency of the moment.
( People -vs- Corbes)
WHEN A JUDGE IS NOT GUILTY OF UNJUST JUDGMENT
In the absence of any indication 1) that the trial court's conclusion is based entirely on speculations; 2) that there is a grave abuse of discretion; 3) that the court, in making its findings went beyond the issues of the case and the same are contrary to the admissions of both appellant and appellee, or; that the judgment is based on a misapprehension of facts, or; that the presiding judge is blatantly biased, the general rule that the trial court's findings of fact should be given great weight still stands.
(Bacar -vs- De Fuzman; A.M. No. RTC 96-1349, April 8, 1997)
WHEN IGNORANCE OF THE LAW IS PRESENT
This Court has held that when the law is so elementary, not to know it or to act as if one does not know it, constitute gross ignorance of the law. Likewise, that unaware of and unfamiliarity with the application of the Indeterminate Senetence of the law and duration and graduation of penalties merits disciplinary action, from reprimand to removal.
RECLUSION PERPETUA/Life Imprisonment
In "People -vs- Conrado Lucas, 240 SCRA 66, the Supreme Court declared that despite the amendment of Article 27 of the Revised Penal Code, reclusion perpetua remained an indivisible penalty. Hence, the penalty does not have any minimum, medium and maximum period. Hence, there is no such penalty of medium period of reclusion perpetua.
(People versus Tiburcio Baculi, 246 SCRA) Suppose the court imposed a penalty of 25 years of reclusion perpetua for the crime of rape and the accused did not appeal, does the judgment become final and executory? No. such judgment is null and void because it imposed a non-existent penalty. Hence, the court may nevertheless correct the penalty imposed on the accused, that is, reclusion perpetua, it is merely performing a duty inherent in the court.
(People versus Nigel Gatward, GR No. 119772-73, February 7, 1997) The penalty of reclusion perpetua is different from life imprisonment. The former carries with it accessory penalties, whereas life imprisonment does not carry with it any accessory penalties; reclusion perpetua is that provided for under the Revised Penal Code and under crimes defined by special laws using the nomenclature under the Revised Penal Code ; life imprisonment is that provided for violations of the Revised Penal Code. Reclusion Perpetua may be reduced by one or two degrees while life imprisonment cannot be so reduced.
(People -vs- Rolnando Madriaga, GR No. 82293, July 23, 1992.)
Which is more burdensome, life imprisonment or reclusion perpetua? Reclusion perpetua has accessory penalties while life imprisonment does not. However, life imprisonment does not have a fixed duration or extent while reclusion perpetua has a duration of from twenty years and one day to forty years. life imprisonment may span the natural life of the convict.
(People -versus- Rallagan, 247 SCRA 537) Where the law violated provides for the penalty of reclusion perpetua, impose the said penalty and not the penalty of life imprisonment. Where the law imposes the penalty of life imprisonment, do not impose reclusion perpetua.
(People -vs- Rolando Madriaga, 211 SCRA 698) There we also said that "if reclusion perpetua was reclassified as a divisible penalty, then Article 63 of the Revised Penal Code would lose its reason and basis for existence." The imputed duration of thirty (30) years of reclusion perpetua, therefore, only serves as the basis for determining the convict's eligibility for pardon or for the application of the three-fold rule in the service of multiple penalties.
(People -vs- Aspolinar Raganas, et al GR No. 101188, October 12, 1999) Where the accused committed qualified violation of PD 704 (fishing with the use of explosives), the imposable penalty for which is life imprisonment to death. If the accused is entitled to a mitigating circumstance of voluntary surrender, the court should impose life imprisonment applying, in a suppletory character, Articles 13 and 63 of the Revised Penal Code.
If, during the trial, the accused was detained but, after trial, he was meted the penalty of reclusion perpetua, he is still entitled to the full credit of his preventive imprisonment because Article 29 of the Revised Penal Code does not distinguish between divisible and indivisible penalties.
(People -vs- Rolando Corpuz, 231 SCRA 480)
QUALIFIED THEFT
Under Article 309 of the Revised Penal Code, the maximum of the penalty for qualified theft is prision mayor to reclusion temporal. However, under Article 310 of the Revised Penal Code, the penalty for the crime shall be two (2) degrees higher than the specified in Article 309 of the Code. Under Article 74 of the Revised Penal Code, the penalty higher by one degree than another given penalty, and if such higher penalty is death, the penalty shall be reclusion perpetua of forty (40) years with the accessory penalties of death under Article 40 of the Revised Penal Code. The accused shall not be entitled to pardon before the lapse of forty (40) years.
(People -vs- Fernando Canales, 297 SCRA 667)
COMPARE: The Supreme Court affirmed the judgment convicting the
accused of qualified theft in the amount of P6,000,000.00 and the imposition of the penalty of reclusion perpetua together with the accessory penalties provided by law.
(People -vs- Ruben Sison, January 19, 2000)
Presidential Decree 818
It is different situation, however, where the penalty imposed on the accused is dependent upon the number of years for every specific amount subject of the felony as in estafa under Article 315 (2)(d) of the Revised Penal Code, as amended by PD 818. Where the accused was found guilty of estafa under the aforesaid laws, involving the aggregate amount of P100,000.00, the accused may be meted the penalty of twenty-seven (27) years of reclusion perpetua.
(People -vs- Roberto Tongko, GR NO. 123567, June 5, 1998) PD 818 provides:
"Sec. 1 - Any person who shall defraud another by means of false pretenses or fraudulent acts as defined in paragraph 2 (d) of Article 315 of the Revised Penal Code, as amended by Republic Act No. 4885, shall be punished by:
1st. The penalty of reclusion temporal if the amount
of the fraud is over P12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos but the total penalty which may be imposed shall in no case exceed thirty years. in such cases, and in connection with the accessory penalties which may be
imposed under the Revised Penal Code, the penalty shall be termed reclusion perpetua;
Here, the complainant was defrauded in the amount of seven hundred thousand (P700,000.00) pesos. The fact that the amount involved in the instant case exceeds P22,000.00 should not be considered in the initial determination of the indeterminate penalty; instead the matter would be so taken as analogous to modifying circumstances in the imposition of the maximum term of the full indeterminate sentence. This accords with the rule that penal laws are construed in favor of the accused.
Applying the above-cited provision, accused shall be meted an indeterminate sentence, the maximum of which shall be taken from the maximum period of the basic penalty, that is, reclusion temporal, to be imposed in its maximum period, plus one (1) year for each additional P10,000.00 of the amount of the fraud, but the total penalty shall not exceed thirty (30) years.
On the other hand, the minimum of the indeterminate sentence shall be within the range of the penalty next lower in degree to that prescribed by the code for the offense, without first considering any modifying circumstance nor the incremental penalty for the amount in excess of twenty two thousand (P22,000.00) pesos. Such penalty is prision mayor with a duration of six (6) years and one (1) day to twelve (12) years. Hence, the accused should be meted and indeterminate penalty of twelve (12) years of prision mayor, as minimum, to thirty (30) years of reclusion perpetua, as maximum, and to indemnify complainant Johnny Sy in the amount of P700,000.00.
(People -vs- Elpidio Hernando, et al., 317 SCRA 617, pages 629-631)
THE PROBATION LAW (P.D. 968)
and its AMENDMENTS
PROBATION
A disposition under which a defendant, after conviction and sentence, is subject to conditions imposed by the Court and under the supervision of a probation officer.
PURPOSES OF PROBATION:
a. to promote the correction and rehabilitation of an offender by providing him with personalized community based treatment;
b. to provide an opportunity for his reformation and reintegration into the community;
c. to prevent the commission of offenses.
SUBMISSION OF PETITION AND TIME OF FILING OF PETITION
The petition or application for probation must be filed directly with the Court which sentenced the accused within 15 days from date of promulgation of the decision convicting the accused, or in short within the period to appeal otherwise the judgment shall become final and the accused shall be deemed to have waived his right to probation.
EFFECT OF FILING OF PETITION
Upon filing of petition for probation, the court shall suspend the execution of sentence.
Likewise, the filing of a petition for probation shall be deemed a waiver of the right to appeal and in case an appeal is made immediately after conviction, a filing of petition for probation still within the period to appeal, that is within fifteen days from date of promulgation shall be deemed a withdrawal of the appeal.
PENDING RESOLUTION OF PETITION,
WHAT HAPPENS TO THE ACCUSED-PETITIONER.
1. if the accused, prior to the promulgation of decision of conviction is out on bail, he may be allowed on temporary liberty under his bail filed in said case;
2. if he is under detention, upon motion, he may be allowed temporary liberty, if he cannot post a bond, on a recognizance of a responsible member of a community who shall guarantee his appearance whenever required by the court.
IN CASE PETITIONER FOR PROBATION CANNOT BE PRODUCED BY THE CUSTODIAN ON
RECOGNIZANCE, WHAT HAPPENS?
The custodian must be asked to explain why he should not be cited for contempt for failing to produce the probationer when required by the court; Summary hearing will be held for indirect contempt, and if custodian cannot produce the petitioner, nor to explain his failure to produce the petitioner, the custodian on recognizance shall be held in contempt of court.
WHAT IS A POST SENTENCE INVESTIGATION REPORT?
It is a report of the Parole and Probation Officer after conducting post sentence investigation and interviews containing the circumstances surrounding the offense for which the petitioner was convicted. The findings should be drawn from the court records, police records, statement of defendants, the aggrieved party and other persons who may know the petitioner and all other matters material to the petition.
It will also include the psychological and social information regarding the probationer; evaluation of the petitioner; suitability for probation; his potential for rehabilitation; and may include the program for supervision and suggested terms of conditions of probation and a recommendation either to deny or grant the probation.
WHAT ARE THE MANDATORY CONDITIONS OF PROBATION?
a. to present himself to the probation officer concerned for supervision within 72 hours from receipt of said order and
b. to report to the probation officer at least once a month during the period of probation.
WHAT ARE THE OTHER
CONDITIONS OF PROBATION?
a. cooperate with a program of supervision; b. meet his family responsibilities;
c. devote himself to a specific employment and not to charge said employment without prior written approval of the probation officer;
d. comply with a program of payment of civil liability to the victim of his heirs;
e. undergo medical, psychological or psychiatric examination and treatment and/or enter and remain in a specific institution, when required for that purposes;
f. pursue a prescribed secular study or vocational training;
g. attend or reside in a facility established for instruction or recreation of persons on probation;
h. refrain from visiting houses of ill-repute;
i. abstain from drinking intoxicating beverages to excess;
j. permit the probation officer or an authorized social worker to visit his home and place of work;
k. reside at premises approved by the court and not to change his residence w/o prior written approval; and
l. satisfy any other condition related to the rehabilitation of the probationer and not unduly restrictive of his liberty or incompatible with his freedom of conscience.
OUTSIDE TRAVEL OF PROBATIONER
A probationer who desires to travel outside the jurisdiction of the city or provincial probation officer for not more than 30 days, the permission of the parole and probation officer must be sought. If for more than thirty days, aside from the permission of the parole and probation officer, the permission of the court must likewise be sought.
EFFECT OF APPEAL BY THE ACCUSED OF HIS CONVICTION
a. If the accused appeals his conviction for the purpose of totally reversing his conviction, he is deemed to have waived his right to probation. b. The rule that if the accused appeals his conviction only with respect to the penalty, as he believes the penalty is excessive or wrong, as the penalty is probationable, and the appellate court sustains the accused may still apply
for probation, has already been abandoned. An appeal therefore, irrespective of its purpose, to overturn the entire decision or only with respect to penalty is a waiver to probation, has already been abandoned. An appeal therefore, irrespective of its purpose, to overturn the entire decision or only with respect to penalty is a waiver to probation.
CONFIDENTIALITY OF RECORDS OF PROBATION
The investigation report and the supervision and history of a probationer obtained under PD No. 968 and under these rules shall be privileged and shall not be disclosed directly or indirectly to anyone other than the probation administration or the court concerned the court which granted the probation or where the probation was transferred may allow the probationer to inspect the aforesaid documents or his lawyer, whenever such disclosure may be desirable or helpful to them.
Any government office may ask for the records of probation from the court for its official use or from the administrator.
Sec. 29, PD 968: VIOLATION OF CONFIDENTIAL NATURE OF PROBATION RECORDS. The penalty of imprisonment ranging from six months and one day to six years and a fine ranging from hundred to six thousand pesos shall be imposed upon any person who violates Section 17 hereof.
MODIFICATION OF CONDITION OR PERIOD OF PROBATION
The court, on motion, or motu propio may modify the conditions of probation or modify the period of probation as circumstances may warrant.
WHO ARE DISQUALIFIED TO UNDERGO PROBATION
1. Those sentenced to serve a maximum term of imprisonment of more than six years.
2. Those convicted of any offense against the security of the state;
3. Those who have been previously convicted by final judgment of an offense punished by imprisonment of not less than one moth and one day and/or a fine of not less than P200.00;
4. Those who have been once on probation under the provisions of this decree.
PERIOD OF PROBATION
1. if the probationer has been sentenced to an imprisonment of not more than one year, the probation shall not exceed two years;
2. in all other cases, not to exceed six years;
3. in case the penalty is fine, the probation shall not be less than the period of subsidiary imprisonment nor more than twice of the subsidiary imprisonment.
AMENDMENT TO SECTION 4 OF PD 968:
"Sec. 4. Grant of Probation. - Subject to the provisions of this Decree, the trial court may, after it shall have convicted and sentenced a defendant, and upon application by said defendant within the period for perfecting an appeal, suspend the execution of the sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best; Provided, That no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction.
"Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An application for probation shall be filed with the trial court. The filing of the application shall be deemed a waiver of the right to appeal.
"An order granting or denying probation shall not be appealable."
Thus, a person who was sentenced to destierro cannot apply for probation. (PD 1990)
JURISPRUDENCE
PROBATION IS NOT A RIGHT BUT A PRIVILEGE
Probation is a mere privilege and its grant rests solely upon the discretion of the court. As aptly noted in U.S. vs. Durken, this discretion is to be exercised primarily for the benefit of organized society and only incidentally for the benefit of the accused. (Tolentino v. Alconcel, G.R. No. 63400, 3/18/83). Even if a convicted person is not included in the list of offenders disqualified from the benefits of a decree, the grant of probation is nevertheless not automatic or ministerial, (Pablo Bernardo v. Balagot, 215 SCRA 526) therefore a petition for probation may be denied by the Court.
UNDERLYING PHILOSOPHY OF PROBATION
The underlying philosophy of probation is indeed one of liberality towards the accused. It is not served by a harsh and stringent interpretation of the statutory provisions. Probation is a major step taken by our Government towards the deterrence and minimizing of crime and the humanization of criminal justice. In line with the public policy behind probation, the right of appeal should not be irrevocably lost from the moment a convicted accused files an application for probation. Appeal and probation spring from the same policy considerations of justice, humanity, and compassion. (Yusi v Morales, 4/28/83)
WHO MAY BE GRANTED PROBATION.
The main criterion laid down by the Probation law in determining who may be granted probation is based on the penalty imposed and not on the nature of the crime. By the relative lightness of the offense, as measured by the penalty imposed, more than by its nature, as the law so ordains the offender is not such a serious menace to society as to be wrested away therefrom, as the more dangerous type of criminals should be. Hence, in the case at bar, the first reason given by the respondent judge for his denial of the petition for probation that, "probation will depreciate the seriousness of the offense committed" would thus be writing into the law a new ground for disqualifying a first-offender from the benefits of probation. (Santos v. Cruz-Pano, 1/17/83)
TIMELINESS OF FILING APPLICATION FOR PROBATION
The accused must file a Petition for Probation within the period for appeal. If the decision of conviction has become final and executory, the accused is barred from filing a Petition for Probation (Pablo Francisco v. C.A., 4/6/95).
ORDER DENYING PROBATION NOT APPEALABLE, REMEDY CERTIORARI
Although an order denying probation is not appealable, the accused may file a motion for Certiorari from said order (Heirs of Francisco Abueg v. C.A., 219 SCRA 78)
EFFECT OF FILING PETITION FOR PROBATION, WAIVER OF RIGHT TO APPEAL AND FINALITY OF JUDGEMENT
A judgement of conviction becomes final when the accused files a petition for probation. However, the judgement is not executory until the petition for probation is resolved. The filing of the petition for probation is a waiver by the accused of his right to appeal the judgement of conviction (Heirs of Francisco Abueg v. C.A., supra).
MULTIPLE CONVICTIONS IN SEVERAL CASES PROBATIONABLE IF PENALTY FOR EACH CONVICTION IS PROBATIONABLE
." Evidently, the law does not intend to sum up the penalties imposed but to take each penalty, separately and distinctly with the others. Consequently, even if petitioner was supposed to have served his prison term of one (1) year and one (1) day to one (1) year and eight (8) months of prision correccional sixteen (16) times as he was sentenced to serve the prison term for "each crime committed on each date of each case, as alleged in the information(s)," and in each of the four (4) informations, he was charged
with having defamed the four (4) private complainants on four (4) different, separate days, he was still eligible for probation, as each prison term imposed on petitioner was probationable. (Francisco v. CA; 4/16/95)
WHY FIXING CUT OFF POINT AT A MAXIMUM OF SIX YEARS IS ALLOWED.
Fixing the cut-off point at a maximum term of six (6) years imprisonment for probation is based on the assumption that those sentenced to higher penalties pose too great a risk to society, not just because of their demonstrated capability for serious wrongdoing but because of the gravity and serious consequences of the offense they might further commit. The Probation Law, as amended, disqualifies only those who have been convicted of grave felonies as defined in Art. 9 in relation to Art. 25 of The Revised Penal Code, and not necessarily those who have been convicted of multiple offenses in a single proceeding who are deemed to be less perverse. Hence, the basis of the disqualification is principally the gravity of the offense committed and the concomitant degree of penalty imposed. Those sentenced to a maximum term not exceeding six (6) years are not generally considered callous, hard core criminals, and thus may avail of probation
VIOLATION OF RA 6425,
A VALID CAUSE FOR DISMISSAL IN SERVICE DESPITE PROBATION
Drug-pushing, as a crime, has been variously condemned as "an especially vicious crime," "one of the most pernicious evils that has ever crept into our society." For those who become addicted to it "not only slide into the ranks of the living dead, what is worse, they become a grave menace to the safety of law-abiding members of society," while "peddlers of drugs are actually agents of destruction. The deserve no less than the maximum penalty [of death]."
There is no doubt that drug-pushing is a crime which involves moral turpitude and implies "every thing which is done contrary to justice, honesty, modesty or good morals" including "acts of baseness, vileness, or depravity in the private and social duties which a man owes to his fellowmen or to society in general, contrary to the accepted rule of right and duty between man and man." Indeed nothing is more depraved than for anyone to be a merchant of death by selling prohibited drugs, an act which, as this Court said in one case,
"often breeds other crimes. It is not what we might call a 'contained' crime whose consequences are limited to that crime alone, like swindling and bigamy. Court and police records show that a significant number of murders, rapes, and similar offenses have been committed by persons under the influence of dangerous drugs, or while they are 'high.' While spreading such drugs, the drug-pusher is also abetting, through his agreed and irresponsibility, the commission of other crimes."
The image of the judiciary is tarnished by conduct, which involves moral turpitude. While indeed the purpose of the Probation Law (P.D. No. 968, as amended) is to save valuable human material, it must not be forgotten that
unlike pardon probation does not obliterate the crime of which the person under probation has been convicted. The reform and rehabilitation of the probationer cannot justify his retention in the government service. He may seek to reenter government service, but only after he has shown that he is fit to serve once again. It cannot be repeated too often that a public office is a public trust, which demands of those in its service the highest degree of morality. (OCA v. Librado; 8/22/96)
PETITIONER MAY STILL EXHORT OFFENDER TO PERFORM CERTAIN ACTS DESPITE
DISCHARGE FROM PROBATION IN CERTAIN CASES
Petitioner Arthur M. Cuevas, Jr.'s discharge from probation without any infraction of the attendant conditions therefor and the various certifications attesting to his righteous, peaceful and civic-oriented character prove that he has taken decisive steps to purge himself of his deficiency in moral character and atone for the unfortunate death of Raul I. Camaligan. The Court is prepared to give him the benefit of the doubt, taking judicial notice of the general tendency of the youth to be rash, temerarious and uncalculating. Let it be stressed to herein petitioner that the lawyer's oath is not a mere formality recited for a few minutes in the glare of flashing cameras and before the presence of select witnesses. Petitioner is exhorted to conduct himself beyond reproach at all times and to live strictly according to his oath and the Code of Professional Responsibility. And, to paraphrase Mr. Justice Padilla's comment in the sister case of Re: Petition of Al Argosino To Take The Lawyer's Oath, Bar Matter No. 712, March 19, 1997, "[t]he Court sincerely hopes that" Mr. Cuevas, Jr., "will continue with the assistance he has been giving to his community. As a lawyer he will now be in a better position to render legal and other services to the more unfortunate members of society". (In Re: Cuevas, Jr.; 1/27/98)
EXPIRATION OF PERIOD OF PROBATION IS NOT TERMINATION, ORDER OF COURT REQUIRED
The mere expiration of the period for probation does not, ipso facto, terminate the probation. Probation is not co-terminus with its period, there must be an order from the Court of final discharge, terminating the probation. If the accused violates the condition of the probation before the issuance of said order, the probation may be revoked by the Court (Manuel Bala v. Martinez, 181 SCRA 459).
ANTI-FENCING LAW
OF 1979 (PD NO. 1612)
Fencing as defined in Sec. 2 of PD No. 1612 (Anti-Fencing Law) is “the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any manner deal in any article, item, object or anything of value which he knows or should be known to him, or to have been derived from the proceeds of the crime of robbery or theft. (Dizon-Pamintuan vs. People, GR 111426, 11 July 94).
Presidential Decree No. 1612 or commonly known as the Anti-Fencing Law of 1979 was enacted under the authority of therein President Ferdinand Marcos. The law took effect on March 2, 1979. The Implementing Rules and Regulations of the Anti-Fencing Law were subsequently formulated and it took effect on June 15, 1979.
The Anti-Fencing Law was made to curtail and put an end to the rampant robbery of government and private properties. With the existence of "ready buyers", the "business" of robbing and stealing have become profitable. Hence, a law was enacted to also punish those who buy stolen properties. For if there are no buyers then the malefactors could not profit from their wrong doings.
WHAT IS FENCING LAW AND HOW IT CAN BE COMMITTED
"Fencing" is the act of any person who, with intent to gain for himself or for another, shall buy receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft. A "Fence" includes any person, firm, association corporation or partnership or other organization who/ which commits the act of fencing.
WHO ARE MADE THEN LIABLE FOR THE CRIME OF FENCING
The person liable is the one buying, keeping, concealing and selling the stolen items. If the fence is a corporation, partnership, association or firm, the one liable is the president or the manager or the officer who knows or should have know the fact that the offense was committed.
The law provide for penalty range for persons convicted of the crime of fencing. Their penalty depends on the value of the goods or items stolen or bought:
a. The penalty of prision mayor, if the value of the property involved is more than 12,000 pesos but not exceeding 22,000 pesos; if the value of such property exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such cases, the penalty shall be termed reclusion temporal and the accessory penalty pertaining thereto provided in the Revised Penal Code shall also be imposed.
b. The penalty of prision correccional in its medium and maximum periods, if the value of the property robbed or stolen is more than 6,000 pesos but not exceeding 12, 000 pesos;
c. The penalty of prision correccional in its minimum and medium periods, if the value of the property involved is more than 200 pesos but not exceeding 6,000 pesos;
d. The penalty of arresto mayor in its medium period to prision correccional in its minimum period, if the value of the property involved is over 50 but not exceeding 200 pesos;
e. The penalty of arresto mayor in its medium period if such value is over five (5) pesos but not exceeding 50 pesos. f. The penalty of arresto mayor in its minimum period if such value does not exceed 5 pesos.
The law requires the establishment engaged in the buy and sell of goods to obtain a clearance or permit to sell "used second hand items", to give effect to the purpose of the law in putting an end to buying and selling stolen items. Failure of which makes the owner or manager liable as a fence.
The Implementing Rules provides for the guidelines of issuance of clearances or permits to sell used or secondhand items. It provided for the definition of the following terms:
1. "Used secondhand article" shall refer to any goods, article, items, object or anything of value obtained from an unlicensed dealer or supplier, regardless of whether the same has actually or in fact been used.
2. "Unlicensed dealer/supplier" shall refer to any persons, partnership, firm, corporation, association or any other entity or establishment not licensed by the government to engage in the business of dealing in or of supplying the articles defined in the preceding paragraph; 3. "Store", "establishment" or "entity" shall be construed to include any individual dealing in the buying and selling used secondhand articles, as defined in paragraph hereof;
4. "Buy and Sell" refer to the transaction whereby one purchases used secondhand articles for the purpose of resale to third persons;
5. "Station Commander" shall refer to the Station Commander of the Integrated National Police within the territorial limits of the town or city district where the store, establishment or entity dealing in the buying and selling of used secondhand articles is located.
The Implementing Rules provided for the method of obtaining clearance or permit. No fee will be charged for the issuance of the clearance/permit. Failure to secure clearance/permit shall be punished as a fence, that may result to the cancellation of business license.
1. The Station Commander shall require the owner of a store or the President, manager or responsible officer in having in stock used secondhand articles, to submit an initial affidavit within thirty (30) days from receipt of notice for the purpose thereof and subsequent affidavits once every fifteen (15) days within five (5) days after the period covered, which shall contain:
a. complete inventory of such articles including the names and addresses from whom the articles were acquired.
b. Full list of articles to be sold or offered for sale including the time and place of sale
c. Place where the articles are presently deposited.
The Station Commander may, require the submission of an affidavit accompanied by other documents showing proof of legitimacy of acquisition.
2. Those who wish to secure the permit/clearance, shall file an application with the Station Commander concerned, which states:
a. name, address and other pertinent circumstances
b. article to be sold or offered for sale to the public and the name and address of the unlicensed dealer or supplier from whom such article was acquired.
c. Include the receipt or document showing proof of legitimacy of acquisition.
3. The Station Commander shall examine the documents attached to the application and may require the presentation of other additional documents, if necessary, to show satisfactory proof of the legitimacy of acquisition of the article, subject to the following conditions:
a. if the Station Commander is not satisfied with the proof of legitimacy of acquisition, he shall cause the publication of the notice, at the expense of the one seeking clearance/permit, in a newspaper of general circulation for two consecutive days, stating:
> articles acquired from unlicensed dealer or supplier
> the names and addresses of the persons from whom they were acquired
> that such articles are to be sold or offered for sale to the public at the address of the store, establishment or other entity seeking the clearance/permit.
4. If there are no newspapers in general circulation, the party seeking the clearance/permit shall, post a notice daily for one week on the bulletin board of the municipal building of the town where the store, firm, establishment or entity is located or, in the case of an individual, where the articles in his possession are to be sold or offered for sale.
5. If after 15 days, upon expiration of the period of publication or of the notice, no claim is made to any of the articles enumerated in the notice, the Station Commander shall issue the clearance or permit sought.
6. If before expiration of the same period for the publication of the notice or its posting, it shall appear that any of the articles in question is stolen property, the Station Commander shall hold the article in restraint as evidence in any appropriate case to be filed.
Articles held in restraint shall kept and disposed of as the circumstances of each case permit. In any case it shall be the duty of the Station Commander concerned to advise/notify the Commission
on Audit of the case and comply with such procedure as may be proper under applicable existing laws, rules and regulations.
7. The Station Commander shall, within seventy-two (72) hours from receipt of the application, act thereon by either issuing the clearance/permit requested or denying the same. Denial of an application shall be in writing and shall state in brief the reason/s thereof.
8. Any party not satisfied with the decision of the Station Commander may appeal the same within 10 days to the proper INP (now PNP) District Superintendent and further to the INP (now PNP) Director. The decision of the Director can still be appealed top the Director-General, within 10 days, whose decision may be appealed with the Minister (now Secretary) of National Defense, within 15 days, which decision is final.
PRESUMPTION
Mere possession of any good, article, item, object or anything fo value which has been the subject of robbery or thievery, shall be prima facie evidence of fencing.
ELEMENTS
1. A crime of robbery or theft has been committed;
2. The accused, who is not a principal or accomplice in the commission of the crime of robbery or theft, buys, receives, possess, keeps, acquires, conceals, sells, or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which has been derived from the proceeds of the said crime;
3. The accused knows or should have known that the said article, item, or object or anything of value has been derived from the proceeds of the crime of robbery or theft; and
4. There is, on the part of the accused, intent to gain for himself or for another. (Dizon-Pamintuan vs People, GR 111426, 11 July 94)
As regards the first element, the crime of robbery or theft should have been committed before crime of fencing can be committed. The person committing the crime of robbery or theft, may or may not be the same person committing the crime of fencing. As in the case of D.M. Consunji, Inc., vs. Esguerra, quantities of phelonic plywood were stolen and the Court held that qualified theft had been committed. In People vs. Lucero there was first a snatching incident, where the bag of Mrs. Maripaz Bernard Ramolete was snatch in the public market of Carbon, Cebu City, where she lost a Chinese Gold Necklace and pendant worth some P4,000.00 to snatchers Manuel Elardo and Zacarias Pateras. The snatchers sold the items to Manuel Lucero. Consequently, Lucero was charged with violation of the Anti-Fencing Law. however, in this case, no eyewitness pointed to Lucero as the perpetrator and the evidence of the prosecution was not strong enough to convict him.
The second element speaks of the overt act of keepipng, buying, receiving, possessing, acquiring, concealing, selling or disposing or in any manner deals with stolen items. It is thus illustrated in the case of Lim vs. Court of Appeals, where the accused, Juanito Lim stored and kept in his
bodega and subsequently bought or disposed of the nine (9) pieces of stolen tires with rims owned by Loui Anton Bond.
The accused known or should have known that the goods were stolen. As pointed out in the case of People vs. Adriatico, the court in convicting Norma Adriatico, stated that it was impossible for her to know that the jewelry were stolen because of the fact that Crisilita was willing to part with a considerable number of jewelry at measly sum, and this should have apprised Norma of the possibility that they were stolen goods. The approximate total value of the jewelry were held to be at P20,000.00, and Norma having bought it from Crisilita for only P2,700. The court also considered the fact that Norma engage in the business of buying and selling gold and silver, which business is very well exposed to the practice of fencing. This requires more than ordinary case and caution in dealing with customers. As noted by the trial court:
". . . the Court is not inclined to accept the accused's theory of buying in good faith and disclaimer of ever seeing, much more, buying the other articles. Human experience belies her allegations as no businessman or woman at that, would let go of such opportunities for a clean profit at the expense of innocent owners.’’
The Court in convicting Ernesto Dunlao Sr., noted that the stolen articles composed of farrowing crates and G.I. pipes were found displayed on petitioner's shelves inside his compound. (Dunalao, Sr. v. CA, 08/22/96)
In the case of People v. Muere (G.R.12902, 10/18/94), the third element was not proven. This case involves the selling of alleged stolen Kenwood Stereo Unit in the store Danvir Trading, owned by the spouses Muere. The store is engaged in buying and selling of second hand merchandise located at Pasay Road, Makati. The said stereo was bought from Wynn's Audio, an existing establishment. The court held that there is no proof that the spouses Muere, had knowledge of the fact that the stereo was stolen. The spouses Muere purchased the stereo from a known merchant and the unit is displayed for sale in their store. These actions are not indicative of a conduct of a guilty person.
On the same vein, the third element did not exist in the case of D.M. Consunji, Inc. (Consunji v. Esguerra, 07/30/96) where the subject of the court action are the alleged stolen phelonic plywood owned by D.M. Consunji, Inc., later found to be in the premises of MC Industrial Sales and Seato trading Company, owned respectively by Eduardo Ching and the spouses Sy. Respondents presented sales receipts covering their purchase of the items from Paramount Industrial, which is a known hardware store in Caloocan, thus they had no reason to suspect that the said items were products of theft.
The last element is that there is intent to gain for himself or for another. However, intent to gain need not be proven in crimes punishable by a special law such as the Anti-Fencing Law. The crimes punishable by special laws are called "acts mala prohibita". The rule on the subject is that in acts mala prohibita, the only inquiry is that, has the law been violated? (in Gatdner v. People, as cited in US v. Go Chico, 14 Phils. 134) When the act is prohibited by law, intent is immaterial.
Likewise, dolo or deceit is immaterial in crimes punishable by special statute like the Anti-Fencing Law. It is the act itself which
constitutes the offense and not the motive or intent. Intent to gain is a mental state, the existence if which is demonstrated by the overt acts of the person. The mental state is presumed from the commission of an unlawful act. (Dunlao v. CA) again, intent to gain is a mental state, the existence of which is demonstrated by the overt acts of person, as the keeping of stolen items for subsequent selling.
A FENCE MAY BE PROSECUTED UNDER THE RPC OR PD 1612
The state may thus choose to prosecute him either under the RPC or PD NO. 1612 although the preference for the latter would seem inevitable considering that fencing is a malum prohibitum, and PD No. 1612 creates a presumption of fencing and prescribes a higher penalty based on the value of the property. (supra)
MERE POSSESSION OF STOLEN ARTICLE PRIMA FACIE EVIDENCE OF FENCING
Since Sec. 5 of PD NO. 1612 expressly provides that “mere possession of any good, article, item, object or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing” it follows that the accused is presumed to have knowledge of the fact that the items found in her possession were the proceeds of robbery or theft. The presumption does not offend the presumption of innocence enshrined in the fundamental law.
DISTINCTION BETWEEN FENCING AND ROBBERY
The law on fencing does not require the accused to have participation in the criminal design to commit or to have been in any wise involved in the commission of the crime of robbery or theft. Neither is the crime of robbery or theft made to depend on an act of fencing in order that it can be consummated. (People v De Guzman, GR 77368).
Robbery is the taking of personal property belonging to another, with intent to gain, by means of violence against or intimidation of any person, or using force upon anything.
On the other hand, fencing is the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object or anything of value which he knows, or shall be known to him, to have been derived from the proceeds of the crime of robbery or theft.
FENCING AS A CRIME INVOLVING MORAL TURPITUDE.
In violation of the Anti-Fencing Law, actual knowledge by the "fence" of the fact that property received is stolen displays the same degree of malicious deprivation of one's rightful property as that which animated the robbery or theft which by their very nature are crimes of moral turpitude. (Dela Torre v. COMELEC 07/05/96)
Moral turpitude can be derived from the third element - accused knows or should have known that the items were stolen. Participation of each felon, one being the robber or the thief or the actual perpetrators, and the other as the fence, differs in point in time and degree but both invaded one's peaceful dominion for gain. (Supra) Both crimes negated the principle of each person's duty to his fellowmen not to appropriate things that they do not own or return something acquired by mistake or with malice. This signifies moral turpitude with moral unfitness.
In the case of Dela Torre, he was declared disqualified from running the position of Mayor in Cavinti, Laguna in the last May 8, 1995 elections because of the fact of the disqualification under Sec. 40 of the Local Government Code, of persons running for elective position -"Sec. 40 Disqualifications - (a) Those sentenced by final judgement for an offense involving moral turpitude..."
Dela Torre was disqualified because of his prior conviction of the crime of fencing wherein he admitted all the elements of the crime of fencing.
ESSENCE OF VIOLATION OF PD 1612, SEC. 2 OR ANTI-FENCING
PD 1612, Section 2 thereof requires that the offender buys or otherwise acquires and then sells or disposes of any object of value which he knows or should he known to him to have been derived from the proceeds of the crime of robbery or theft. (Caoili v CA; GR 128369, 12/22/97)
PROOF OF PURCHASE WHEN GOODS ARE IN POSSESSION OF OFFENDER NOT NECESSARY IN ANTI-FENCING
The law does not require proof of purchase of the stolen articles by petitioner, as mere possession thereof is enough to give rise to a presumption of fencing.
It was incumbent upon petitioner to overthrow this presumption by sufficient and convincing evidence. (Caoili v. CA; GR 128369, 12/22/97)
BATAS PAMBANSA BLG. 22
BOUNCING CHECKS LAW
ACTS PUNISHABLE:
a. any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank, for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds, or credit, or would have been
dishonored for the same reason had not the drawee, without any valid reason, ordered the bank to stop payment.
b. Any person who having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety days from date appearing thereon, for which reason, it is dishonored by the drawee bank.
HOW TO ESTABLISH GUILT OF ACCUSED IN BP 22
To establish her guilt, it is indispensable that the checks she issued for which she was subsequently charged, be offered in evidence because the gravamen of the offense charged is the act of knowingly issuing a check with insufficient funds. Clearly, it was error to convict complainant on the basis of her letter alone. Nevertheless, despite this incorrect interpretation of a rule on evidence, we do not find the same as sufficiently constitutive of the charges of gross ignorance of the law and of knowingly rendering an unjust decision. Rather, it is at most an error in judgment, for which, as a general rule, he cannot be held administratively liable. In this regard, we reiterate the prevailing rule in our jurisdiction as established by current jurisprudence. (Gutierrez v Pallatao; 8/8/98)
NOTICE, AN INDISPENSABLE REQUISITE FOR PROSECUTION
Section 3 of BP 22 requires that the holder of the check or the drawee bank, must notify the drawer of the check that the same was dishonored, if the same is presented within ninety days from date of issuance, and upon notice the drawer has five days within which to make arrangements for the payment of the check or pay the same in full.
DUTY OF THE DRAWEE BANK
The drawee bank has the duty to cause to be written, printed or stamped in plain language thereon, or attached thereto the reason for the drawee’s dishonor or refusal to pay the same. If the drawee bank fails to do so, prosecution for violation of BP 22 may not prosper.
RULE IN CASE OF DISHONOR DUE TO STOP PAYMENT
The drawee bank has not only the duty to indicate that the drawer stopped the payment and the reason for the stop payment. The drawee bank is further obligated to state whether the drawer of the check has sufficient funds in the bank or not.
AGREEMENT OF PARTIES REGARDING THE CHECK IS NOT A DEFENSE
