Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 213847 August 18, 2015
JUAN PONCE ENRILE, Petitioner,
vs.
SANDIGANBAYAN (THIRD DIVISION), AND PEOPLE OF THE
PHILIPPINES, Respondents.
DECISION

BERSAMIN, J.:

The decision whether to detain or release an accused before and

during trial is ultimately an incident of the judicial power to hear
and determine his criminal case. The strength of the Prosecution's
case, albeit a good measure of the accused’s propensity for flight or
for causing harm to the public, is subsidiary to the primary
objective of bail, which is to ensure that the accused appears at
trial.1

The Case

Before the Court is the petition for certiorari filed by Senator Juan
Ponce Enrile to assail and annul the resolutions dated July 14,
20142 and August 8, 20143 issued by the Sandiganbayan (Third
Division) in Case No. SB-14-CRM-0238, where he has been charged
with plunder along with several others. Enrile insists that the
resolutions, which respectively denied his Motion To Fix Bail and
his Motion For Reconsideration, were issued with grave abuse of
discretion amounting to lack or excess of jurisdiction.

Antecedents

On June 5, 2014, the Office of the Ombudsman charged Enrile and

several others with plunder in the Sandiganbayan on the basis of
their purported involvement in the diversion and misuse of
appropriations under the Priority Development Assistance Fund
(PDAF).4 On June 10, 2014 and June 16, 2014, Enrile respectively
filed his Omnibus Motion5 and Supplemental Opposition,6 praying,
among others, that he be allowed to post bail should probable cause
be found against him. The motions were heard by the
Sandiganbayan after the Prosecution filed its Consolidated
Opposition.7

On July 3, 2014, the Sandiganbaya n issued its resolution denying

Enrile’s motion, particularly on the matter of bail, on the ground of
its prematurity considering that Enrile had not yet then voluntarily
surrendered or been placed under the custody of the
law.8 Accordingly, the Sandiganbayan ordered the arrest of Enrile.9

On the same day that the warrant for his arrest was issued, Enrile
voluntarily surrendered to Director Benjamin Magalong of the
Criminal Investigation and Detection Group (CIDG) in Camp Crame,
Quezon City, and was later on confined at the Philippine National
Police (PNP) General Hospital following his medical examination.10

Thereafter, Enrile filed his Motion for Detention at the PNP General
Hospital ,11 and his Motion to Fix Bail ,12 both dated July 7, 2014,
which were heard by the Sandiganbayan on July 8, 2014.13 In
support of the motions, Enrile argued that he should be allowed to
post bail because: (a) the Prosecution had not yet established that
the evidence of his guilt was strong; (b) although he was charged
with plunder, the penalty as to him would only be reclusion
temporal , not reclusion perpetua ; and (c) he was not a flight risk,
and his age and physical condition must further be seriously
considered.

On July 14, 2014, the Sandiganbayan issued its first assailed

resolution denying Enrile’s Motion to Fix Bail, disposing thusly:

x x x [I]t is only after the prosecution shall have presented its

evidence and the Court shall have made a determination that the
evidence of guilt is not strong against accused Enrile can he
demand bail as a matter of right. Then and only then will the Court
be duty-bound to fix the amount of his bail.

To be sure, no such determination has been made by the Court. In

fact, accused Enrile has not filed an application for bail.
Necessarily, no bail hearing can even commence. It is thus
exceedingly premature for accused Enrile to ask the Court to fix his
bail.

Accused Enrile next argues that the Court should grant him bail
because while he is charged with plunder, "the maximum penalty
that may be possibly imposed on him is reclusion temporal, not
reclusion perpetua." He anchors this claim on Section 2 of R.A. No.
7080, as amended, and on the allegation that he is over seventy (70)
years old and that he voluntarily surrendered. "Accordingly, it may
be said that the crime charged against Enrile is not punishable by
reclusion perpetua, and thus bailable."

The argument has no merit.

x x x [F]or purposes of bail, the presence of mitigating

circumstance/s is not taken into consideration. These
circumstances will only be appreciated in the imposition of the
proper penalty after trial should the accused be found guilty of the
offense charged. x x x

Lastly, accused Enrile asserts that the Court should already fix his
bail because he is not a flight risk and his physical condition must
also be seriously considered by the Court.

Admittedly, the accused’s age, physical condition and his being a

flight risk are among the factors that are considered in fixing a
reasonable amount of bail. However, as explained above, it is
premature for the Court to fix the amount of bail without an
anterior showing that the evidence of guilt against accused Enrile is
not strong.
WHEREFORE, premises considered, accused Juan Ponce Enrile’s
Motion to Fix Bail dated July 7, 2014 is DENIED for lack of merit.

SO ORDERED.14

On August 8, 2014, the Sandiganbayan issued it s second assailed

resolution to deny Enrile’s motion for reconsideration filed vis-à-vis
the July 14, 2014 resolution.15

Enrile raises the following grounds in support of his petition for

certiorari , namely:

A. Before judgment of the Sandiganbayan, Enrile is bailable as a

matter of right. Enrile may be deemed to fall within the exception
only upon concurrence of two (2) circumstances: (i) where the
offense is punishable by reclusion perpetua, and (ii) when evidence
of guilt is strong.

B. The prosecution failed to show clearly and conclusively that

Enrile, if ever he would be convicted, is punishable by reclusion
perpetua; hence, Enrile is entitled to bail as a matter of right.

C. The prosecution failed to show clearly and conclusively that

evidence of Enrile’s guilt (if ever) is strong; hence, Enrile is entitled
to bail as a matter of right.

D. At any rate, Enrile may be bailable as he is not a flight risk.16

Enrile claims that before judgment of conviction, an accused is

entitled to bail as matter of right; th at it is the duty and burden of
the Prosecution to show clearly and conclusively that Enrile comes
under the exception and cannot be excluded from enjoying the right
to bail; that the Prosecution has failed to establish that Enrile, if
convicted of plunder, is punishable by reclusion perpetua
considering the presence of two mitigating circumstances – his age
and his voluntary surrender; that the Prosecution has not come
forward with proof showing that his guilt for the crime of plunder is
strong; and that he should not be considered a flight risk taking
into account that he is already over the age of 90, his medical
condition, and his social standing.

In its Comment ,17 the Ombudsman contends that Enrile’s right to

bail is discretionary as he is charged with a capital offense; that to
be granted bail, it is mandatory that a bail hearing be conducted to
determine whether there is strong evidence of his guilt, or the lack
of it; and that entitlement to bail considers the imposable penalty,
regardless of the attendant circumstances.

Ruling of the Court

The petition for certiorari is meritorious.

1.
Bail protects the right of the accused to
due process and to be presumed innocent

In all criminal prosecutions, the accused shall be presumed

innocent until the contrary is proved.18 The presumption of
innocence is rooted in the guarantee of due process, and is
safeguarded by the constitutional right to be released on
bail,19 and further binds the court to wait until after trial to impose
any punishment on the accused.20

It is worthy to note that bail is not granted to prevent the accused

from committing additional crimes.[[21] The purpose of bail is to
guarantee the appearance of the accused at the trial, or whenever
so required by the trial court. The amount of bail should be high
enough to assure the presence of the accused when so required, but
it should be no higher than is reasonably calculated to fulfill this
purpose.22 Thus, bail acts as a reconciling mechanism to
accommodate both the accused’s interest in his provisional liberty
before or during the trial, and the society’s interest in assuring the
accused’s presence at trial.23
2.
Bail may be granted as a
matter of right or of discretion

The right to bail is expressly afforded by Section 13, Article III (Bill
of Rights) of the Constitution, viz.:

x x x All persons, except those charged with offenses punishable by

reclusion perpetua when evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or be released on
recognizance as may be provided by law. The right to bail shall not
be impaired even when the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required.

This constitutional provision is repeated in Section 7, Rule 11424 of

the Rules of Court , as follows:

Section 7. Capital offense or an offense punishable by reclusion

perpetua or life imprisonment, not bailable. — No person charged
with a capital offense, or an offense punishable by reclusion
perpetua or life imprisonment, shall be admitted to bail when
evidence of guilt is strong, regardless of the stage of the criminal
prosecution.

A capital offense in the context of the rule refers to an offense that,

under the law existing at the time of its commission and the
application for admission to bail, may be punished with death.25

The general rule is, therefore, that any person, before being
convicted of any criminal offense, shall be bailable, unless he is
charged with a capital offense, or with an offense punishable with
reclusion perpetua or life imprisonment, and the evidence of his
guilt is strong. Hence, from the moment he is placed under arrest,
or is detained or restrained by the officers of the law, he can claim
the guarantee of his provisional liberty under the Bill of Rights, and
he retains his right to bail unless he is charged with a capital
offense, or with an offense punishable with reclusion perpetua or
life imprisonment, and the evidence of his guilt is strong.26 Once it
has been established that the evidence of guilt is strong, no right to
bail shall be recognized.27

As a result, all criminal cases within the competence of the

Metropolitan Trial Court, Municipal Trial Court, Municipal Trial
Court in Cities, or Municipal Circuit Trial Court are bailable as
matter of right because these courts have no jurisdiction to try
capital offenses, or offenses punishable with reclusion perpetua or
life imprisonment. Likewise, bail is a matter of right prior to
conviction by the Regional Trial Court (RTC) for any offense not
punishable by death, reclusion perpetua , or life imprisonment, or
even prior to conviction for an offense punishable by death,
reclusion perpetua , or life imprisonment when evidence of guilt is
not strong.28

On the other hand, the granting of bail is discretionary: (1) upon

conviction by the RTC of an offense not punishable by death,
reclusion perpetua or life imprisonment;29 or (2) if the RTC has
imposed a penalty of imprisonment exceeding six years, provided
none of the circumstances enumerated under paragraph 3 of
Section 5, Rule 114 is present, as follows:

(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or

has committed the crime aggravated by the circumstance of
reiteration;

(b) That he has previously escaped from legal confinement, evaded

sentence, or violated the conditions of his bail without valid
justification;

(c) That he committed the offense while under probation, parole, or

conditional pardon;

(d) That the circumstances of hi s case indicate the probability of

flight if released on bail; or
(e) That there is undue risk that he may commit another crime
during the pendency of the appeal.

3.
Admission to bail in offenses punished
by death, or life imprisonment, or reclusion
perpetua is subject to judicial discretion

For purposes of admission to bail, the determination of whether or

not evidence of guilt is strong in criminal cases involving capital
offenses, or offenses punishable with reclusion perpetua or life
imprisonment lies within the discretion of the trial court. But, as
the Court has held in Concerned Citizens v. Elma ,30 "such
discretion may be exercised only after the hearing called to
ascertain the degree of guilt of the accused for the purpose of
whether or not he should be granted provisional liberty." It is
axiomatic, therefore, that bail cannot be allowed when its grant is a
matter of discretion on the part of the trial court unless there has
been a hearing with notice to the Prosecution.31 The
indispensability of the hearing with notice has been aptly explained
in Aguirre v. Belmonte, viz. :32

x x x Even before its pronouncement in the Lim case, this Court

already ruled in People vs. Dacudao, etc., et al. that a hearing is
mandatory before bail can be granted to an accused who is charged
with a capital offense, in this wise:

The respondent court acted irregularly in granting bail in a murder

case without any hearing on the motion asking for it, without
bothering to ask the prosecution for its conformity or comment, as
it turned out later, over its strong objections. The court granted bail
on the sole basis of the complaint and the affidavits of three
policemen, not one of whom apparently witnessed the killing.
Whatever the court possessed at the time it issued the questioned
ruling was intended only for prima facie determining whether or not
there is sufficient ground to engender a well-founded belief that the
crime was committed and pinpointing the persons who probably
committed it. Whether or not the evidence of guilt is strong for each
individual accused still has to be established unless the prosecution
submits the issue on whatever it has already presented. To
appreciate the strength or weakness of the evidence of guilt, the
prosecution must be consulted or heard. It is equally entitled as the
accused to due process.

Certain guidelines in the fixing of a bailbond call for the

presentation of evidence and reasonable opportunity for the
prosecution to refute it. Among them are the nature and
circumstances of the crime, character and reputation of the
accused, the weight of the evidence against him, the probability of
the accused appearing at the trial, whether or not the accused is a
fugitive from justice, and whether or not the accused is under bond
in other cases. (Section 6, Rule 114, Rules of Court) It is highly
doubtful if the trial court can appreciate these guidelines in an ex-
parte determination where the Fiscal is neither present nor heard.

The hearing, which may be either summary or otherwise, in the

discretion of the court, should primarily determine whether or not
the evidence of guilt against the accused is strong. For this
purpose, a summary hearing means:

x x x such brief and speedy method of receiving and considering the

evidence of guilt as is practicable and consistent with the purpose
of hearing which is merely to determine the weight of evidence for
purposes of bail. On such hearing, the court does not sit to try the
merits or to enter into any nice inquiry as to the weight that ought
to be allowed to the evidence for or against the accused, nor will it
speculate on the outcome of the trial or on what further evidence
may be therein offered or admitted. The course of inquiry may be
left to the discretion of the court which may confine itself to
receiving such evidence as has reference to substantial matters,
avoiding unnecessary thoroughness in the examination and cross
examination.33

In resolving bail applications of the accused who is charged with a

capital offense, or an offense punishable by reclusion perpetua or
life imprisonment, the trial judge is expected to comply with the
guidelines outlined in Cortes v. Catral,34 to wit:

1. In all cases, whether bail is a matter of right or of discretion,

notify the prosecutor of the hearing of the application for bail or
require him to submit his recommendation (Section 18, Rule 114 of
the Rules of Court, as amended);

2. Where bail is a matter of discretion, conduct a hearing of the

application for bail regardless of whether or not the prosecution
refuses to present evidence to show that the guilt of the accused is
strong for the purpose of enabling the court to exercise its sound
discretion; (Section 7 and 8, supra)

3. Decide whether the guilt of the accused is strong based on the

summary of evidence of the prosecution;

4. If the guilt of the accused is no t strong, discharge the accused

upon the approval of the bailbond (Section 19, supra) Otherwise
petition should be denied.

3.
Enrile’s poor health justifies his admission to bail

We first note that Enrile has averred in his Motion to Fix Bail the
presence of two mitigating circumstances that should be
appreciated in his favor, namely: that he was already over 70 years
at the time of the alleged commission of the offense, and that he
voluntarily surrendered.35

Enrile’s averment has been mainly uncontested by the Prosecution,

whose Opposition to the Motion to Fix Bail has only argued that –
8. As regards the assertion that the maximum possible penalty that
might be imposed upon Enrile is only reclusion temporal due to the
presence of two mitigating circumstances, suffice it to state that the
presence or absence of mitigating circumstances is also not
consideration that the Constitution deemed worthy. The relevant
clause in Section 13 is "charged with an offense punishable by." It
is, therefore, the maximum penalty provided by the offense that has
bearing and not the possibility of mitigating circumstances being
appreciated in the accused’s favor.36

Yet, we do not determine now the question of whether or not

Enrile’s averment on the presence of the two mitigating
circumstances could entitle him to bail despite the crime alleged
against him being punishable with reclusion perpetua ,37 simply
because the determination, being primarily factual in context, is
ideally to be made by the trial court.

Nonetheless, in now granting Enrile’s petition for certiorari, the

Court is guided by the earlier mentioned principal purpose of bail,
which is to guarantee the appearance of the accused at the trial, or
whenever so required by the court. The Court is further mindful of
the Philippines’ responsibility in the international community
arising from the national commitment under the Universal
Declaration of Human Rights to:

x x x uphold the fundamental human rights as well as value the

worth and dignity of every person. This commitment is enshrined in
Section II, Article II of our Constitution which provides: "The State
values the dignity of every human person and guarantees full
respect for human rights." The Philippines, therefore, has the
responsibility of protecting and promoting the right of every person
to liberty and due process, ensuring that those detained or arrested
can participate in the proceedings before a court, to enable it to
decide without delay on the legality of the detention and order their
release if justified. In other words, the Philippine authorities are
under obligation to make available to every person under detention
such remedies which safeguard their fundamental right to liberty.
These remedies include the right to be admitted to bail.38

This national commitment to uphold the fundamental human rights

as well as value the worth and dignity of every person has
authorized the grant of bail not only to those charged in criminal
proceedings but also to extraditees upon a clear and convincing
showing: (1 ) that the detainee will not be a flight risk or a danger to
the community; and (2 ) that there exist special, humanitarian and
compelling circumstances.39

In our view, his social and political standing and his having
immediately surrendered to the authorities upon his being charged
in court indicate that the risk of his flight or escape from this
jurisdiction is highly unlikely. His personal disposition from the
onset of his indictment for plunder, formal or otherwise, has
demonstrated his utter respect for the legal processes of this
country. We also do not ignore that at an earlier time many years
ago when he had been charged with rebellion with murder and
multiple frustrated murder, he already evinced a similar personal
disposition of respect for the legal processes, and was granted bail
during the pendency of his trial because he was not seen as a flight
risk.40 With his solid reputation in both his public and his private
lives, his long years of public service, and history’s judgment of him
being at stake, he should be granted bail.

The currently fragile state of Enrile’s health presents another

compelling justification for his admission to bail, but which the
Sandiganbayan did not recognize.

In his testimony in the Sandiganbayan,41 Dr. Jose C. Gonzales, the

Director of the Philippine General Hospital (PGH), classified Enrile
as a geriatric patient who was found during the medical
examinations conducted at the UP-PGH to be suffering from the
following conditions:
(1) Chronic Hypertension with fluctuating blood pressure levels on
multiple drug therapy; (Annexes 1.1, 1.2, 1.3);

(2) Diffuse atherosclerotic cardiovascular disease composed of the

following :

a. Previous history of cerebrovascular disease with carotid and

vertebral artery disease ; (Annexes 1.4, 4.1)

b. Heavy coronary artery calcifications; (Annex 1.5)

c. Ankle Brachial Index suggestive of arterial calcifications. (Annex

1.6)

(3) Atrial and Ventricular Arrhythmia (irregular heart beat)

documented by Holter monitoring ; (Annexes 1.7.1, 1.7.2)

(4) Asthma-COPD Overlap Syndrom (ACOS) and postnasal drip

syndrome; (Annexes 2.1, 2.2)

(5) Ophthalmology:

a. Age-related mascular degeneration, neovascular s/p laser of the

Retina, s/p Lucentis intra-ocular injections; (Annexes 3.0, 3.1, 3.2)

b. S/p Cataract surgery with posterior chamber intraocular lens.

(Annexes 3.1, 3.2)

(6) Historical diagnoses of the following:

a. High blood sugar/diabetes on medications;

b. High cholesterol levels/dyslipidemia;

c. Alpha thalassemia;

d. Gait/balance disorder;

e. Upper gastrointestinal bleeding (etiology uncertain) in 2014;

f. Benign prostatic hypertrophy (with documented enlarged prostate
on recent ultrasound).42

Dr. Gonzales attested that the following medical conditions, singly

or collectively, could pose significant risk s to the life of Enrile, to
wit: (1) uncontrolled hypertension, because it could lead to brain or
heart complications, including recurrence of stroke; (2) arrhythmia,
because it could lead to fatal or non-fatal cardiovascular events,
especially under stressful conditions; (3) coronary calcifications
associated with coronary artery disease, because they could
indicate a future risk for heart attack under stressful conditions;
and (4) exacerbations of ACOS, because they could be triggered by
certain circumstances (like excessive heat, humidity, dust or
allergen exposure) which could cause a deterioration in patients
with asthma or COPD.43

Based on foregoing, there is no question at all that Enrile’s

advanced age and ill health required special medical attention. His
confinement at the PNP General Hospital, albeit at his own
instance,44 was not even recommended by the officer-in-charge (O
IC) and the internist doctor of that medical facility because of the
limitations in the medical support at that hospital. Their
testimonies ran as follows:

JUSTICE MARTIRES:

The question is, do you feel comfortable with the continued

confinement of Senator Enrile at the Philippine National Police
Hospital?

DR. SERVILLANO:

No, Your Honor.

JUSTICE MARTIRES:

Director, doctor, do you feel comfortable with the continued

confinement of Senator Enrile at the PNP Hospital ?
PSUPT. JOCSON:

No, Your Honor.

JUSTICE MARTIRES:

Why?

PSUPT. JOCSON:

Because during emergency cases, Your Honor, we cannot give him

the best.

JUSTICE MARTIRES:

At present, since you are the attending physician of the accused,

Senator Enrile, are you happy or have any fear in your heart of the
present condition of the accused vis a vis the facilities of the
hospital?

DR. SERVILLANO:

Yes, Your Honor. I have a fear.

JUSTICE MARTIRES:

That you will not be able to address in an emergency situation?

DR. SERVILLANO:

Your Honor, in case of emergency situation we can handle it but

probably if the condition of the patient worsen, we have no facilities
to do those things, Your Honor.45

Bail for the provisional liberty of the accused, regardless of the

crime charged, should be allowed independently of the merits of the
charge, provided his continued incarceration is clearly shown to be
injurious to his health or to endanger his life. Indeed, denying him
bail despite imperiling his health and life would not serve the true
objective of preventive incarceration during the trial.
Granting bail to Enrile on the foregoing reasons is not
unprecedented. The Court has already held in Dela Rama v. The
People’s Court:46

x x x This court, in disposing of the first petition for certiorari, held

the following:

x x x [ U]nless allowance of bail is forbidden by law in the particular

case, the illness of the prisoner,

independently of the merits of the case, is a circumstance, and the

humanity of the law makes it a consideration which should,
regardless of the charge and the stage of the proceeding, influence
the court to exercise its discretion to admit the prisoner to bail ;47

xxx

Considering the report of the Medical Director of the Quezon

Institute to the effect that the petitioner "is actually suffering from
minimal, early, unstable type of pulmonary tuberculosis, and
chronic, granular pharyngitis," and that in said institute they "have
seen similar cases, later progressing into advance stages when the
treatment and medicine are no longer of any avail;" taking into
consideration that the petitioner’s previous petition for bail was
denied by the People’s Court on the ground that the petitioner was
suffering from quiescent and not active tuberculosis, and the
implied purpose of the People’s Court in sending the petitioner to
the Quezon Institute for clinical examination and diagnosis of the
actual condition of his lungs, was evidently to verify whether the
petitioner is suffering from active tuberculosis, in order to act
accordingly in deciding his petition for bail; and considering further
that the said People’s Court has adopted and applied the well-
established doctrine cited in our above-quoted resolution, in several
cases, among them, the cases against Pio Duran (case No. 3324)
and Benigno Aquino (case No. 3527), in which the said defendants
were released on bail on the ground that they were ill and their
continued confinement in New Bilibid Prison would be injurious to
their health or endanger their life; it is evident and we consequently
hold that the People’s Court acted with grave abuse of discretion in
refusing to re lease the petitioner on bail.48

It is relevant to observe that granting provisional liberty to Enrile

will then enable him to have his medical condition be properly
addressed and better attended to by competent physicians in the
hospitals of his choice. This will not only aid in his adequate
preparation of his defense but, more importantly , will guarantee
his appearance in court for the trial.

On the other hand, to mark time in order to wait for the trial to
finish before a meaningful consideration of the application for bail
can be had is to defeat the objective of bail, which is to entitle the
accused to provisional liberty pending the trial. There may be
circumstances decisive of the issue of bail – whose existence is
either admitted by the Prosecution, or is properly the subject of
judicial notice – that the courts can already consider in resolving
the application for bail without awaiting the trial to finish.49 The
Court thus balances the scales of justice by protecting the interest
of the People through ensuring his personal appearance at the trial,
and at the same time realizing for him the guarantees of due
process as well as to be presumed innocent until proven guilty.

Accordingly, we conclude that the Sandiganbayan arbitrarily

ignored the objective of bail to ensure the appearance of the
accused during the trial; and unwarrantedly disregarded the clear
showing of the fragile health and advanced age of Enrile. As such,
the Sandiganbayan gravely abused its discretion in denying Enrile’s
Motion To Fix Bail. Grave abuse of discretion, as the ground for the
issuance of the writ of certiorari , connotes whimsical and
capricious exercise of judgment as is equivalent to excess, or lack of
jurisdiction.50 The abuse must be so patent and gross as to
amount to an evasion of a positive duty or to a virtual refusal to
perform a duty enjoined by law, or to act at all in contemplation of
law as where the power is exercised in an arbitrary and despotic
manner by reason of passion or hostility.51 WHEREFORE, the
Court GRANTS the petition for certiorari ; ISSUES the writ of
certiorari ANNULING and SETTING ASIDE the Resolutions issued
by the Sandiganbayan (Third Division) in Case No. SB-14 CRM-
0238 on July 14, 2014 and August 8, 2014; ORDERS the
PROVISIONAL RELEASE of petitioner Juan Ponce Enrile in Case
No. SB-14-CRM-0238 upon posting of a cash bond
of P1,000,000.00 in the Sandiganbayan; and DIRECTS the
immediate release of petitioner Juan Ponce Enrile from custody
unless he is being detained for some other lawful cause.

No pronouncement on costs of suit.

SO ORDERED.

BLOGGER'S COMMENTS

The majority opinion and the dissent both make for a very
interesting treatise on Criminal Procedure.These will likely be
quoted again and again in bail hearings and in classrooms.

The majority opinion is very strained, it had to rely on “motherhood

statements” regarding a person's right to liberty and right to bail.
The decision used no compelling legal reasoning apart from our
commitment to international laws.

Here comes Associate Justice Marvic Leonen, seeing himself as CJ

Claudio Teehankee reborn, comes to the rescue claiming that the
decision will:
will usher in an era of truly selective justice not based on their legal
provisions, but one that is unpredictable, partial and solely
grounded on the presence or absence of human compassion.

Factual Milieu is Important

We must note however the factual milieu. At the time Senators

Enrile, Revilla and Estrada were charged with plunder, the public
perception was that these Senators were the target of a campaign to
eliminate the Administration's political enemies.

The perception of some circles critical of the current administration

that these three senators, (the trio known colloquially as “Pogi”,
“Tanda” and “Sexy”) were hastily charged and unfairly detained. The
accusation that the administration was quick to charge its enemies
while defending its allies is a valid one. No discussion of the grant of
bail will overlook the highly politicized nature of the 3 Senator's
incarceration.

That is not to say that this trio and particularly Enrile are innocent.
Indeed, the Supreme Court's decision drew a slew of criticism and a
few defenders. Below are just a few links to articles criticizing or
defending the decision.

Am I comfortable with the decision? Justice Bersamin - Author of

the main decision
Yes. The decision re-emphasizes the right of people to bail from an
ideological standpoint – politically well connected or otherwise – it
serves to remind courts and prosecutors to establish probability of
guilt for heinous crimes early on. For the innocent languishing in
detention centers, this decision is a Godsend and can potentially
speed up criminal justice.

Courts and prosecutors will have to take steps to adapt to this new
environment. Needless to say, I argue that the requisites of 1. Flight
risk and, 2. Strong evidence of guilt are fairly simple and reliable
guidelines for the lower courts to follow. The dissent's warning of
courts getting swamped with requests of accused to be released on
bail and lack of guidance to lower courts is unwarranted fear-
mongering.

I am uncomfortable with the dissenting opinion. While I think its

arguments as to the finer points of procedure is warranted, it
nevertheless casts the Supreme Court in a bad light and can serve
to weaken it as an institution.

G.R. No. 101837 February 11, 1992

ROLITO GO y TAMBUNTING, petitioner,

vs.
THE COURT OF APPEALS, THE HON. BENJAMIN V. PELAYO,
Presiding Judge, Branch 168, Regional Trial Court, NCJR Pasig,
M.M., and PEOPLE OF THE PHILIPPINES, respondents.

FELICIANO, J.:
According to the findings of the San Juan Police in their
Investigation Report, 1 on 2 July 1991, Eldon Maguan was driving
his car along Wilson St., San Juan, Metro Manila, heading towards
P. Guevarra St. Petitioner entered Wilson St., where it is a one-way
street and started travelling in the opposite or "wrong" direction. At
the corner of Wilson and J. Abad Santos Sts., petitioner's and
Maguan's cars nearly bumped each other. Petitioner alighted from
his car, walked over and shot Maguan inside his car. Petitioner then
boarded his car and left the scene. A security guard at a nearby
restaurant was able to take down petitioner's car plate number. The
police arrived shortly thereafter at the scene of the shooting and
there retrieved an empty shell and one round of live ammunition for
a 9 mm caliber pistol. Verification at the Land Transportation Office
showed that the car was registered to one Elsa Ang Go.

The following day, the police returned to the scene of the shooting
to find out where the suspect had come from; they were informed
that petitioner had dined at Cravings Bake Shop shortly before the
shooting. The police obtained a facsimile or impression of the credit
card used by petitioner from the cashier of the bake shop. The
security guard of the bake shop was shown a picture of petitioner
and he positively identified him as the same person who had shot
Maguan. Having established that the assailant was probably the
petitioner, the police launched a manhunt for petitioner.

On 8 July 1991, petitioner presented himself before the San Juan

Police Station to verify news reports that he was being hunted by
the police; he was accompanied by two (2) lawyers. The police
forthwith detained him. An eyewitness to the shooting, who was at
the police station at that time, positively identified petitioner as the
gunman. That same day, the police promptly filed a complaint for
frustrated homicide 2 against petitioner with the Office of the
Provincial Prosecutor of Rizal. First Assistant Provincial Prosecutor
Dennis Villa Ignacio ("Prosecutor") informed petitioner, in the
presence of his lawyers, that he could avail himself of his right to
preliminary investigation but that he must first sign a waiver of the
provisions of Article 125 of the Revised Penal Code. Petitioner
refused to execute any such waiver.

On 9 July 1991, while the complaint was still with the Prosecutor,
and before an information could be filed in court, the victim, Eldon
Maguan, died of his gunshot wound(s).

Accordingly, on 11 July 1991, the Prosecutor, instead of filing an

information for frustrated homicide, filed an information for
murder 3 before the Regional Trial Court. No bail was
recommended. At the bottom of the information, the Prosecutor
certified that no preliminary investigation had been conducted
because the accused did not execute and sign a waiver of the
provisions of Article 125 of the Revised Penal Code.

In the afternoon of the same day, 11 July 1991, counsel for

petitioner filed with the Prosecutor an omnibus motion for
immediate release and proper preliminary investigation, 4 alleging
that the warrantless arrest of petitioner was unlawful and that no
preliminary investigation had been conducted before the
information was filed. Petitioner also prayed that he be released on
recognizance or on bail. Provincial Prosecutor Mauro Castro, acting
on the omnibus motion, wrote on the last page of the motion itself
that he interposed no objection to petitioner being granted
provisional liberty on a cash bond of P100,000.00.

On 12 July 1991, petitioner filed an urgent ex-parte motion for

special raffle 5 in order to expedite action on the Prosecutor's bail
recommendation. The case was raffled to the sala of respondent
Judge, who, on the same date, approved the cash bond 6 posted by
petitioner and ordered his release. 7 Petitioner was in fact released
that same day.

On 16 July 1991, the Prosecutor filed with the Regional Trial Court
a motion for leave to conduct preliminary investigation 8 and
prayed that in the meantime all proceedings in the court be
suspended. He stated that petitioner had filed before the Office of
the Provincial Prosecutor of Rizal an omnibus motion for immediate
release and preliminary investigation, which motion had been
granted by Provincial Prosecutor Mauro Castro, who also agreed to
recommend cash bail of P100,000.00. The Prosecutor attached to
the motion for leave a copy of petitioner's omnibus motion of 11
July 1991.

Also on 16 July 1991, the trial court issued an Order 9 granting

leave to conduct preliminary investigation and cancelling the
arraignment set for 15 August 1991 until after the prosecution shall
have concluded its preliminary investigation.

On 17 July 1991, however, respondent Judge motu proprio issued

an Order, 10 embodying the following: (1) the 12 July 1991 Order
which granted bail was recalled; petitioner was given 48 hours from
receipt of the Order to surrender himself; (2) the 16 July 1991
Order which granted leave to the prosecutor to conduct preliminary
investigation was recalled and cancelled; (3) petitioner's omnibus
motion for immediate release and preliminary investigation dated
11 July 1991 was treated as a petition for bail and set for hearing
on 23 July 1991.

On 19 July 1991, petitioner filed a petition for certiorari, prohibition

and mandamus before the Supreme Court assailing the 17 July
1991 Order, contending that the information was null and void
because no preliminary investigation had been previously
conducted, in violation of his right to due process. Petitioner also
moved for suspension of all proceedings in the case pending
resolution by the Supreme Court of his petition; this motion was,
however, denied by respondent Judge.

On 23 July 1991, petitioner surrendered to the police.

By a Resolution dated 24 July 1991, this Court remanded the
petition for certiorari, prohibition and mandamus to the Court of
Appeals.

On 16 August 1991, respondent Judge issued an order in open

court setting the arraignment of petitioner on 23 August 1991.

On 19 August 1991, petitioner filed with the Court of Appeals a

motion to restrain his arraignment.

On 23 August 1991, respondent judge issued a Commitment Order

directing the Provincial Warden of Rizal to admit petitioner into his
custody at the Rizal Provincial Jail. On the same date, petitioner
was arraigned. In view, however, of his refusal to enter a plea, the
trial court entered for him a plea of not guilty. The Trial court then
set the criminal case for continuous hearings on 19, 24 and 26
September; on 2, 3, 11 and 17 October; and on 7, 8, 14, 15, 21 and
22 November 1991. 11

On 27 August 1991, petitioner filed a petition for habeas

corpus 12 in the Court of Appeals. He alleged that in view of public
respondent's failure to join issues in the petition
for certiorari earlier filed by him, after the lapse of more than a
month, thus prolonging his detention, he was entitled to be released
on habeas corpus.

On 30 August 1991, the Court of Appeals issued the writ of habeas

corpus. 13 The petition for certiorari, prohibition
and mandamus, on the one hand, and the petition for habeas
corpus, upon the other, were subsequently consolidated in the
Court of Appeals.

The Court of Appeals, on 2 September 1991, issued a resolution

denying petitioner's motion to restrain his arraignment on the
ground that that motion had become moot and academic.
On 19 September 1991, trial of the criminal case commenced and
the prosecution presented its first witness.

On 23 September 1991, the Court of Appeals rendered a

consolidated decision 14 dismissing the two (2) petitions, on the
following grounds:

a. Petitioner's warrantless arrest was valid because the offense for

which he was arrested and charged had been "freshly committed."
His identity had been established through investigation. At the time
he showed up at the police station, there had been an existing
manhunt for him. During the confrontation at the San Juan Police
Station, one witness positively identified petitioner as the culprit.

b. Petitioner's act of posting bail constituted waiver of any

irregularity attending his arrest. He waived his right to preliminary
investigation by not invoking it properly and seasonably under the
Rules.

c. The trial court did not abuse its discretion when it issued the 17
July 1991 Order because the trial court had the inherent power to
amend and control its processes so as to make them conformable to
law and justice.

d. Since there was a valid information for murder against petitioner

and a valid commitment order (issued by the trial judge after
petitioner surrendered to the authorities whereby petitioner was
given to the custody of the Provincial Warden), the petition
for habeas corpus could not be granted.

On 3 October 1991, the prosecution presented three (3) more

witnesses at the trial. Counsel for petitioner also filed a "Withdrawal
of Appearance" 15 with the trial court, with petitioner's conformity.

On 4 October 1991, the present Petition for Review

on Certiorari was filed. On 14 October 1991, the Court issued a
Resolution directing respondent Judge to hold in abeyance the
hearing of the criminal case below until further orders from this
Court.

In this Petition for Review, two (2) principal issues need to be

addressed: first, whether or not a lawful warrantless arrest had
been effected by the San Juan Police in respect of petitioner Go; and
second, whether petitioner had effectively waived his right to
preliminary investigation. We consider these issues seriatim.

In respect of the first issue, the Solicitor General argues that under
the facts of the case, petitioner had been validly arrested without
warrant. Since petitioner's identity as the gunman who had shot
Eldon Maguan on 2 July 1991 had been sufficiently established by
police work, petitioner was validly arrested six (6) days later at the
San Juan Police Station. The Solicitor General invokes Nazareno
v. Station Commander, etc., et al., 16 one of the seven (7) cases
consolidated with In the Matter of the Petition for Habeas Corpus of
Roberto Umil, etc., v. Ramos, et al. 17 where a majority of the Court
upheld a warrantees arrest as valid although effected fourteen (14)
days after the killing in connection with which Nazareno had been
arrested. Accordingly, in the view of the Solicitor General, the
provisions of Section 7, Rule 112 of the Rules of Court were
applicable and because petitioner had declined to waive the
provisions of Article 125 of the Revised Penal Code, the Prosecutor
was legally justified in filing the information for murder even
without preliminary investigation.

On the other hand, petitioner argues that he was not lawfully

arrested without warrant because he went to the police station six
(6) days after the shooting which he had allegedly perpetrated.
Thus, petitioner argues, the crime had not been "just committed" at
the time that he was arrested. Moreover, none of the police officers
who arrested him had been an eyewitness to the shooting of
Maguan and accordingly none had the "personal knowledge"
required for the lawfulness of a warrantees arrest. Since there had
been no lawful warrantless arrest. Section 7, Rule 112 of the Rules
of Court which establishes the only exception to the right to
preliminary investigation, could not apply in respect of petitioner.

The reliance of both petitioner and the Solicitor General upon Umil
v. Ramos is, in the circumstances of this case, misplaced. In Umil
v. Ramos, by an eight-to-six vote, the Court sustained the legality of
the warrantless arrests of petitioners made from one (1) to fourteen
days after the actual commission of the offenses, upon the ground
that such offenses constituted "continuing crimes." Those offenses
were subversion, membership in an outlawed organization like the
New People's Army, etc. In the instant case, the offense for which
petitioner was arrested was murder, an offense which was obviously
commenced and completed at one definite location in time and
space. No one had pretended that the fatal shooting of Maguan was
a "continuing crime."

Secondly, we do not believe that the warrantees "arrest" or

detention of petitioner in the instant case falls within the terms of
Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure
which provides as follows:

Sec. 5 Arrest without warrant; when lawful. — A peace officer or a

private person may, without warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed,

is actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be
arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped

from a penal establishment or place where he is serving final
judgment or temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person
arrested without a warrant shall be forthwith delivered to the
nearest police station or jail, and he shall be proceed against in
accordance with Rule 112, Section 7.

Petitioner's "arrest" took place six (6) days after the shooting of
Maguan. The "arresting" officers obviously were not present, within
the meaning of Section 5(a), at the time petitioner had allegedly shot
Maguan. Neither could the "arrest" effected six (6) days after the
shooting be reasonably regarded as effected "when [the shooting
had] in fact just been committed" within the meaning of Section
5(b). Moreover, none of the "arresting" officers had any "personal
knowledge" of facts indicating that petitioner was the gunman who
had shot Maguan. The information upon which the police acted had
been derived from statements made by alleged eyewitnesses to the
shooting — one stated that petitioner was the gunman; another was
able to take down the alleged gunman's car's plate number which
turned out to be registered in petitioner's wife's name. That
information did not, however, constitute "personal knowledge." 18

It is thus clear to the Court that there was no lawful warrantless

arrest of petitioner within the meaning of Section 5 of Rule 113. It is
clear too that Section 7 of Rule 112, which provides:

Sec. 7 When accused lawfully arrested without warrant. — When a

person is lawfully arrested without a warrant for an offense
cognizable by the Regional Trial Court the complaint or information
may be filed by the offended party, peace officer or fiscal without a
preliminary investigation having been first conducted, on the basis
of the affidavit of the offended party or arresting office or person

However, before the filing of such complaint or information, the

person arrested may ask for a preliminary investigation by a proper
officer in accordance with this Rule, but he must sign a waiver of
the provisions of Article 125 of the Revised Penal Code, as
amended, with the assistance of a lawyer and in case of non-
availability of a lawyer, a responsible person of his
choice. Notwithstanding such waiver, he may apply for bail as
provided in the corresponding rule and the investigation must be
terminated within fifteen (15) days from its inception.

If the case has been filed in court without a preliminary

investigation having been first conducted, the accused may within
five (5) days from the time he learns of the filing of the
information, ask for a preliminary investigation with the same right
to adduce evidence in his favor in the manner prescribed in this
Rule. (Emphasis supplied)

is also not applicable. Indeed, petitioner was not arrested at all.

When he walked into San Juan Police Station, accompanied by two
(2) lawyers, he in fact placed himself at the disposal of the police
authorities. He did not state that he was "surrendering" himself, in
all probability to avoid the implication he was admitting that he had
slain Eldon Maguan or that he was otherwise guilty of a crime.
When the police filed a complaint for frustrated homicide with the
Prosecutor, the latter should have immediately scheduled a
preliminary investigation to determine whether there was probable
cause for charging petitioner in court for the killing of Eldon
Maguan. Instead, as noted earlier, the Prosecutor proceed under
the erroneous supposition that Section 7 of Rule 112 was applicable
and required petitioner to waive the provisions of Article 125 of the
Revised Penal Code as a condition for carrying out a preliminary
investigation. This was substantive error, for petitioner was entitled
to a preliminary investigation and that right should have been
accorded him without any conditions. Moreover, since petitioner
had not been arrested, with or without a warrant, he was also
entitled to be released forthwith subject only to his appearing at the
preliminary investigation.

Turning to the second issue of whether or not petitioner had waived

his right to preliminary investigation, we note that petitioner had
from the very beginning demanded that a preliminary investigation
be conducted. As earlier pointed out, on the same day that the
information for murder was filed with the Regional Trial Court,
petitioner filed with the Prosecutor an omnibus motion for
immediate release and preliminary investigation. The Solicitor
General contends that that omnibus motion should have been filed
with the trial court and not with the Prosecutor, and that the
petitioner should accordingly be held to have waived his right to
preliminary investigation. We do not believe that waiver of
petitioner's statutory right to preliminary investigation may be
predicated on such a slim basis. The preliminary investigation was
to be conducted by the Prosecutor, not by the Regional Trial Court.
It is true that at the time of filing of petitioner's omnibus motion,
the information for murder had already been filed with the Regional
Trial Court: it is not clear from the record whether petitioner was
aware of this fact at the time his omnibus motion was actually filed
with the Prosecutor. In Crespo v. Mogul, 19 this Court held:

The preliminary investigation conducted by the fiscal for the

purpose of determining whether a prima facie case exists to
warranting the prosecution of the accused is terminated upon the
filing of the information in the proper court. In turn, as above
stated, the filing of said information sets in motion the criminal
action against the accused in Court. Should the fiscal find it proper
to conduct a reinvestigation of the case, at such stage, the
permission of the Court must be secured. After such reinvestigation
the finding and recommendations of the fiscal should be submitted
to the Court for appropriate action. While it is true that the fiscal
has the quasi-judicial discretion to determine whether or not a
criminal case should be filed in court or not, once the case had
already been brought to Court whatever disposition the fiscal may
feel should be proper in the case thereafter should be addressed for
the consideration of the Court. The only qualification is that the
action of the Court must not impair the substantial rights of the
accused., or the right of the People to due process of law.

xxx xxx xxx

The rule therefore in this jurisdiction is that once a complaint or

information is filed in Court any disposition of the case [such] as its
dismissal or the conviction or acquittal of the accused rests in the
sound discretion of the Court. Although the fiscal retains the
direction and control of the prosecution of criminal cases even while
the case is already in Court he cannot impose his opinion on the
trial court. The Court is the best and sole judge on what to do with
the case before it. . . . 20 (Citations omitted; emphasis supplied)

Nonetheless, since petitioner in his omnibus motion was asking for

preliminary investigation and not for a re-investigation (Crespo v.
Mogul involved a re-investigation), and since the Prosecutor himself
did file with the trial court, on the 5th day after filing the
information for murder, a motion for leave to conduct preliminary
investigation (attaching to his motion a copy of petitioner's omnibus
motion), we conclude that petitioner's omnibus motion was in effect
filed with the trial court. What was crystal clear was that petitioner
did ask for a preliminary investigation on the very day that the
information was filed without such preliminary investigation, and
that the trial court was five (5) days later apprised of the desire of
the petitioner for such preliminary investigation. Finally, the trial
court did in fact grant the Prosecutor's prayer for leave to conduct
preliminary investigation. Thus, even on the (mistaken) supposition
apparently made by the Prosecutor that Section 7 of Rule 112 of the
Revised Court was applicable, the 5-day reglementary period in
Section 7, Rule 112 must be held to have been substantially
complied with.

We believe and so hold that petitioner did not waive his right to a
preliminary investigation. While that right is statutory rather than
constitutional in its fundament, since it has in fact been established
by statute, it is a component part of due process in criminal
justice. 21 The right to have a preliminary investigation conducted
before being bound over to trial for a criminal offense and hence
formally at risk of incarceration or some other penalty, is not a
mere formal or technical right; it is a substantive right. The accused
in a criminal trial is inevitably exposed to prolonged anxiety,
aggravation, humiliation, not to speak of expense; the right to an
opportunity to avoid a process painful to any one save, perhaps, to
hardened criminals, is a valuable right. To deny petitioner's claim to
a preliminary investigation would be to deprive him the full
measure of his right to due process.

The question may be raised whether petitioner still retains his right
to a preliminary investigation in the instant case considering that
he was already arraigned on 23 August 1991. The rule is that the
right to preliminary investigation is waived when the accused fails
to invoke it before or at the time of entering a plea at
arraignment. 22 In the instant case, petitioner Go had vigorously
insisted on his right to preliminary investigation before his
arraignment.At the time of his arraignment, petitioner was already
before the Court of Appeals on certiorari, prohibition
and mandamusprecisely asking for a preliminary investigation
before being forced to stand trial.

Again, in the circumstances of this case, we do not believe that by

posting bail petitioner had waived his right to preliminary
investigation. In People v. Selfaison, 23 we did hold that appellants
there had waived their right to preliminary investigation because
immediately after their arrest, they filed bail and proceeded to trial
"without previously claiming that they did not have the benefit of a
preliminary investigation." 24 In the instant case, petitioner Go
asked for release on recognizance or on bail and for preliminary
investigation in one omnibus motion. He had thus claimed his right
to preliminary investigation before respondent Judge approved the
cash bond posted by petitioner and ordered his release on 12 July
1991. Accordingly, we cannot reasonably imply waiver of
preliminary investigation on the part of petitioner. In fact, when the
Prosecutor filed a motion in court asking for leave to conduct
preliminary investigation, he clearly if impliedly recognized that
petitioner's claim to preliminary investigation was a legitimate one.

We would clarify, however, that contrary to petitioner's contention

the failure to accord preliminary investigation, while constituting a
denial of the appropriate and full measure of the statutory process
of criminal justice, did not impair the validity of the information for
murder nor affect the jurisdiction of the trial court. 25

It must also be recalled that the Prosecutor had actually agreed that
petitioner was entitled to bail. This was equivalent to an
acknowledgment on the part of the Prosecutor that the evidence of
guilt then in his hands was not strong. Accordingly, we consider
that the 17 July 1991 order of respondent Judge recalling his own
order granting bail and requiring petitioner to surrender himself
within forty-eight (48) hours from notice, was plainly arbitrary
considering that no evidence at all — and certainly
no new or additional evidence — had been submitted to respondent
Judge that could have justified the recall of his order issued just
five (5) days before. It follows that petitioner was entitled to be
released on bail as a matter of right.

The final question which the Court must face is this: how does the
fact that, in the instant case, trial on the merits has already
commenced, the Prosecutor having already presented four (4)
witnesses, impact upon, firstly, petitioner's right to a preliminary
investigation and, secondly, petitioner's right to be released on bail?
Does he continue to be entitled to have a preliminary investigation
conducted in respect of the charge against him? Does petitioner
remain entitled to be released on bail?

Turning first to the matter of preliminary investigation, we consider

that petitioner remains entitled to a preliminary investigation
although trial on the merits has already began. Trial on the merits
should be suspended or held in abeyance and a preliminary
investigation forthwith accorded to petitioner. 26 It is true that the
Prosecutor might, in view of the evidence that he may at this time
have on hand, conclude that probable cause exists; upon the other
hand, the Prosecutor conceivably could reach the conclusion that
the evidence on hand does not warrant a finding of probable cause.
In any event, the constitutional point is that petitioner
was not accorded what he was entitled to by way of procedural due
process. 27 Petitioner was forced to undergo arraignment and
literally pushed to trial without preliminary investigation, with
extraordinary haste, to the applause from the audience that filled
the courtroom. If he submitted to arraignment at trial, petitioner
did so "kicking and screaming," in a manner of speaking . During
the proceedings held before the trial court on 23 August 1991, the
date set for arraignment of petitioner, and just before arraignment,
counsel made very clear petitioner's vigorous protest and objection
to the arraignment precisely because of the denial of preliminary
investigation. 28 So energetic and determined were petitioner's
counsel's protests and objections that an obviously angered court
and prosecutor dared him to withdraw or walkout, promising to
replace him with counsel de oficio. During the trial, before the
prosecution called its first witness, petitioner through counsel once
again reiterated his objection to going to trial without preliminary
investigation: petitioner's counsel made of record his "continuing
objection." 29 Petitioner had promptly gone to the appellate court
on certiorari and prohibition to challenge the lawfulness of the
procedure he was being forced to undergo and the lawfulness of his
detention. 30 If he did not walk out on the trial, and if he cross-
examined the prosecution's witnesses, it was because he was
extremely loath to be represented by counsel de oficio selected by
the trial judge, and to run the risk of being held to have waived also
his right to use what is frequently the only test of truth in the
judicial process.
In respect of the matter of bail, we similarly believe and so hold that
petitioner remains entitled to be released on bail as a matter of
right. Should the evidence already of record concerning petitioner's
guilt be, in the reasonable belief of the Prosecutor, strong, the
Prosecutor may move in the trial court for cancellation of
petitioner's bail. It would then be up to the trial court, after a
careful and objective assessment of the evidence on record, to grant
or deny the motion for cancellation of bail.

To reach any other conclusions here, that is, to hold that

petitioner's rights to a preliminary investigation and to bail were
effectively obliterated by evidence subsequently admitted into the
record would be to legitimize the deprivation of due process and to
permit the Government to benefit from its own wrong or culpable
omission and effectively to dilute important rights of accused
persons well-nigh to the vanishing point. It may be that to require
the State to accord petitioner his rights to a preliminary
investigation and to bail at this point, could turn out ultimately to
be largely a ceremonial exercise. But the Court is not compelled to
speculate. And, in any case, it would not be idle ceremony; rather, it
would be a celebration by the State of the rights and liberties of its
own people and a re-affirmation of its obligation and determination
to respect those rights and liberties.

ACCORDINGLY, the Court resolved to GRANT the Petition for

Review on Certiorari. The Order of the trial court dated 17 July
1991 is hereby SET ASIDE and NULLIFIED, and the Decision of the
Court of Appeals dated 23 September 1991 hereby REVERSED.

The Office of the Provincial Prosecutor is hereby ORDERED to

conduct forthwith a preliminary investigation of the charge of
murder against petitioner Go, and to complete such preliminary
investigation within a period of fifteen (15) days from
commencement thereof. The trial on the merits of the criminal case
in the Regional Trial Court shall be SUSPENDED to await the
conclusion of the preliminary investigation.

Meantime, petitioner is hereby ORDERED released forthwith upon

posting of a cash bail bond of One Hundred Thousand Pesos
(P100,000.00). This release shall be without prejudice to any lawful
order that the trial court may issue, should the Office of the
Provincial Prosecutor move for cancellation of bail at the conclusion
of the preliminary investigation.

No pronouncement as to costs. This Decision is immediately

executory.

SO ORDERED.

[A.M. No. RTJ-03-1817. June 8, 2005]

P/SR. SUPT. ORLANDO M. MABUTAS, Regional Director, Philippine

Drug Enforcement Agency, Metro Manila Regional
Office, complainant, vs. JUDGE NORMA C. PERELLO, Presiding
Judge, Regional Trial Court, Branch 276, Muntinlupa
City, respondent.

[A.M. No. RTJ-04-1820. June 8, 2005]

CITY PROSECUTOR EDWARD M. TOGONONON, complainant, vs.

JUDGE NORMA C. PERELLO, respondent.

RESOLUTION

AUSTRIA-MARTINEZ, J.:

Subject matters of the present administrative cases are two

complaints against respondent Judge Norma C. Perello, Presiding
Judge of the Regional Trial Court (Branch 276) of Muntinlupa City.

Admin. Matter No. RTJ-03-1817

This case originated from a letter of Police Senior Supt. Orlando M.
Mabutas, Regional Director of the Philippine Drug Enforcement
Agency, Metro Manila Regional Office. P/Sr. Supt. Mabutas
complained of certain irregularities committed by respondent Judge
in the grant of bail to accused Aiza Chona Omadan in Criminal
Case No. 03-265. Omadan was charged in an Information, dated
April 21, 2003, with Violation of Section 11 of Republic Act No.
9165, or the Comprehensive Dangerous Drugs Act of 2002, for the
possession, custody and control of 57.78 grams of
Methamphetamine Hydrochloride (shabu), with no bail
recommended.

P/Sr. Supt. Mabutass complaint was based on the memorandum

submitted by Police Inspector Darwin S. Butuyan, who stated in his
report, as follows:

In the evening of May 5, 2003, a colleague notified him of a

scheduled preliminary investigation of Omadans case on the
following day (May 6). When P/Insp. Butuyan, together with PO2
Saturnino Mayonte and PO2 Allan Lising, went to the Office of the
City Prosecutor, Assistant City Prosecutor (ACP) Florante E. Tuy
merely asked them to sign the minutes of the preliminary
investigation. Omadan and her counsel were not around, and the
police officers were not furnished with a copy of Omadans counter-
affidavit.

On May 8, 2003, someone handed P/Insp. Butuyan a subpoena for

the arraignment of Omadan on May 9, 2003. During the scheduled
arraignment, they were surprised when ACP Vicente Francisco
called PO2 Mayonte to the witness stand. Apparently, Omadan filed
a petition for bail and it was being heard on the same day. PO2
Mayonte and PO2 Lising asked ACP Francisco for a rescheduling of
the hearing because they were not prepared to testify but the former
declined, saying that it is just a motion for bail. After PO2 Mayonte
testified, PO2 Lising asked ACP Francisco to present him as witness
but again, the former declined since his testimony would only be
corroborative. ACP Francisco also presented two (2) barangay
tanods.

On May 12, 2003, P/Insp. Butuyan went to deliver a communiqu to

ACP Francisco from P/Sr. Supt. Mabutas requesting that in the
event bail was granted, its implementation be held in abeyance so
that the police authorities may file the necessary motion, and in
order to prevent Omadan from escaping. Since ACP Francisco was
not around, they went to Branch 276 to secure a copy of the motion
for bail. However, the police officers were shocked to learn that
Omadan has already been released on a P1,000,000.00 bail on May
9, 2003, which was a Friday. Court personnel also informed them
that they spent overtime work for the processing of the release
papers. They asked for a copy of the transcript of stenographic
notes of the hearing held on May 9, 2003, but it was not available.

Respondent Judges Order dated May 9, 2003, granting Omadans

petition for bail, reads in part:

Clearly, the evidence of guilt is not very strong for the denial of the
bail. It was not proven that the object that SPO1 Mayonte allegedly
saw wrapped in a tissue paper was indeed methamphetamine
hydrochloride. He is not very sure if the specimen was in fact
subjected to an analysis to determine what it was. There is also no
specifying the quantity of the item.

There also seem to be an irregularity in the service of the search

warrant for it was NOT witnessed by two disinterested persons.
Admittedly two Barangay Tanods were brought to the residence of
accused, but they never witnessed the search because when they
arrived the search had already been completed. The wife of the
owner of the residence was allegedly found in the house but she
was not made to go with the searching team to witness the search.
An evaluation of the record of the search, it appears also the search
warrant, showed some material defect, because no witness who
appeared to have personal knowledge of the illegal activities of the
accused and husband, executed an Affidavit before the officer who
issued the search warrant. In fact the searching questions were
conducted on the applicant but not on the confidential informant,
who alone had the personal knowledge of the alleged illegal
activities in the vicinity. No deposition was taken of the applicant.
Only the applying officers executed an affidavit, yet had no personal
knowledge of the crime as they were only told by his confidential
informant. No copy of the deposition is attached to the application.
Although this court has no jurisdiction to hear the MOTION TO
QUASH the search warrant however this fact are [sic] taken into
consideration for the petition to bail if only to show the strength or
weakness of the prosecution evidence, to ascertain if Prosecution
have [sic] a witness who has personal knowledge of the alleged
illegal activities of the accused in her home. There is none. Even the
Barangay policemen Arturo Villarin, cannot tell with certainty if
drugs were indeed found in the residence of the accused.

Bail is therefore allowed in the sum of ONE MILLION PESOS (Php

1,000,000.00) which accused AIZA CHONA OMADAN may post in
cash, by property or thru a reputable bonding company, and under
the additional condition that her counsel, Atty. GENE CASTILLO
QUILAS guarantees her appearance in court whenever so required.

It is SO ORDERED.[1]

Admin. Matter No. RTJ-04-1820

This case proceeded from a letter of Prosecutor Edward M.

Togononon of Muntinlupa City, accusing respondent Judge of
partiality, serious misconduct in office and gross ignorance of the
law, concerning the latters grant of bail in four criminal cases for
Violations of R.A. No. 9165 pending before her.

In Criminal Case No. 03-065, entitled, People of the Philippines vs.

Rosemarie Pascual y Mozo @ Rosema, for Violation of Section 5 of
R.A. No. 9165, accused Pascual was charged with selling, trading,
delivering and giving away to another 0.20 grams of
Methamphetamine Hydrochloride (shabu), with no bail
recommended.[2] Pascual filed, on February 5, 2003, a motion for
bail on the grounds that the quantity of shabu involved is minimal
and the imposable penalty is likewise minimal in degree; and that
she is nine months pregnant and due to give birth anytime.[3]

On the day of arraignment, February 7, 2003, respondent Judge

issued an order granting Pascuals motion for bail without hearing,
which reads:

The MOTION FOR BAIL filed by Accused through counsel is granted

on the reason cited thereat.

Accordingly, Accused ROSEMARIE PASCUAL Y MOZO may post her

bail in the amount of P200,000.00 in cash or thru a reputable
bonding company, or by property bond for her provisional liberty.

It is SO ORDERED.[4]

ACP Francisco filed a motion for reconsideration, arguing that since

the crime charged against Pascual is a capital offense, bail is not
allowed as a matter of right, and a hearing is indispensable.
Respondent Judge denied the motion in her Order dated March 12,
2003, which reads, in part:

...

This Court is immediately appalled and shocked by the thirst for

blood of these officials, were selling shabu in the quantity of 0.20
gram, they would put the accused to DEATH. It seems that, to these
officials LIFE IMPRISONMENT and DEATH is the only solution to
this problem, without considering the intended provision of the law,
and the possible dislocation that the death of the accused will cause
to his family and even to society itself. The prosecution and some
City Officials have distorted the provision of the law by considering
shabu as a dangerous drug, in the category of opium puppy (sic) or
morphine. They cannot be more wrong!

In the 1961 Single Convention on Narcotic Drugs, as amended by

the 1972 Protocol, Methamphetamine Hydrochloride is NEVER
considered as dangerous drugs to come under the provision of the
first paragraph of Sec. 5, Republic Act No. 9165. The definition of
dangerous drugs under Sec. 3, letter J of the said law, specifies
those considered as dangerous drugs. Instead Methamphetamine
Hydrochloride is considered as a controlled precursor or essential
chemical, which is found and listed in No. 7, LIST OF
SUBSTANCES in SCHEDULE NO. 111 of the 1971 United Nations
Single Convention on Psychotropic Substances. Therefore,
Methamphetamine Hydrochloride is a chemical substance or
psychotropic substance and NOT a dangerous drug.!

Since the quantity is very much less than a gram of this essential
chemical, is punishable with imprisonment of only 12 years, as
paragraph 2 of Sec. 5, R.A. 9165 provides. There is no law, statute,
or jurisprudence that classifies 12 years imprisonment as a capital
punishment, and non-bailable. Only bloodsuckers who thirst for
blood will consider death for these offenders for this kind of offense!

Prosecution will probably argue that this drug is considered

dangerous under Sec. 11, R.A. 9165, but this section does not
define what are dangerous drugs, and the term is used generally to
encompass all drugs. Still, this section only shows that for
possession of certain quantities of shabu, is punishable with 12
years imprisonment only, NEVER DEATH!

This Court has no quarrel with the Prosecutors if the drugs accused
is pushing or found in the custody of accused are of large volume,
for then they would really deserve to DIE! Then be richer by several
millions, and foster a society of drug abusers yet! But this Court
cannot agree with Prosecutors when the quantity that is peddled is
not even enough to put body and soul together of accused. Foisting
death on these kind of offenders, is death itself to him who imposes
such a penalty! This court cannot be that unjust and unfeeling,
specially as the law itself does not so allow!

The prosecutors are also reminded that the grant of bail to all
offenses is constitutionally guaranteed. Even those punishable with
death or capital offenses, only the EXCEPTIONS! It is never the
rule.

...

Perhaps if these questioning individuals will provide employment to

their constituents, the latter will not engage in this kind of trade to
survive.[5]

In Criminal Case No. 03-082, entitled, People of the Philippines vs.

Rolando Uy y Manata @ Nono, for Violation of Section 5, paragraph
1 of R.A. No. 9165, accused Uy was charged with selling, trading,
delivering and giving away to Philippine National Police (PNP)
operatives after a buy-bust operation 0.12 grams of
Methamphetamine Hydrochloride (shabu). ACP Romeo B. Senson
recommended no bail. Uy filed a petition for bail cum motion to
suppress prosecution evidence on February 18, 2003, alleging,
among others, that the arrest was illegal as no buy-bust operation
happened, and the shabu confiscated was planted on him. Without
hearing, respondent Judge granted Uys petition for bail since the
quantity of drug allegedly pushed is only 0.12 grams[6] Uy was
released on a P200,000.00 bail. The motion for reconsideration filed
by ACP Francisco remains unresolved.

The antecedents of Criminal Case No. 03-265 entitled People of the

Philippines vs. Aiza Chona Omadan y Chua and John Doe, for
Violation of Section 11 of R.A. No. 9165, are set forth and dealt with
in Admin. Matter No. RTJ-03-1817.

In Criminal Case No. 03-288 entitled People of the Philippines vs.

Mary Jane Regencia y Mozo @ Grace, for Violation of Section 5 of
R.A. No. 9165, accused Regencia was charged with selling,
delivering, trading and giving away to another 0.07 grams of
Methamphetamine Hydrochloride (shabu). Respondent Judge
likewise granted Regencias motion for bail without hearing, on the
ground that the quantity of shabu involved is minimal and the
imposable penalty is also minimal.[7]

Respondent Judge was required to comment on these two

complaints.

In Admin. Matter No. RTJ-03-1817, respondent Judge contends

that P/Sr. Supt. Mabutass charges against her are baseless; that
the preliminary investigation conducted on Omadans case was
outside her jurisdiction; that she did not have any hand or
influence in ACP Franciscos handling of the hearing on the petition
for bail as it is within the latters control and supervision; that she
denies that there was undue haste in the grant of bail in Omadans
favor; and that bail was granted because the prosecutions evidence
of Omadans guilt was not strong.[8]

In Admin. Matter No. RTJ-04-1820, respondent Judge explains that

she did not conduct any hearings on the motions/petitions for bail
filed in the criminal cases subject of the complaint because the
crimes charged are not capital offenses as the quantity
of shabu involved therein was minimal. Criminal Case Nos. 03-065,
03-082, and 03-288 all involve selling of less than 5 grams
of shabu. Respondent Judge believes that under R.A. No.
9165, shabu is not a dangerous drug but merely a controlled
precursor, in which the selling of less than 5 grams is punishable
only with imprisonment of 12 years to 20 years. Such being the
case, respondent Judge maintains that bail is a matter of right and
a hearing is not required.[9]

The two complaints were consolidated and referred to Court of

Appeals Associate Justice Jose C. Reyes, Jr. for investigation,
report, and recommendation.
After due proceedings, the Investigating Justice submitted his
Report and Recommendation, with the following findings and
conclusion:

The charges arose out of the same set of facts and are interrelated
and will be discussed together.

Before proceeding further, the investigating justice will first dispose

respondent judges assertion that the complaints should be
dismissed outright claiming that where sufficient judicial remedy
exists, the filing of administrative complaint is not the proper
remedy to correct actions of a judge citing the case of Barbers vs.
Laguio, Jr. (351 SCRA 606 [2001])

Anent the charge of partiality and serious misconduct, the

investigating justice notes that these particular charges were not
touched upon in the testimony of any of the witnesses presented by
the complainants. Therefore, the investigating justice finds that no
evidence as to partiality nor serious misconduct exists and these
charges should be dismissed for lack of evidence.

The investigating justice will now therefore tackle only the charge of
gross ignorance of the law against respondent judge.

A close scrutiny of the said Barbers case shows that it is not

applicable in the present administrative complaints because in the
said case it was clear that complainants-petitioners were not merely
concerned with the alleged act of the judge of rendering an unjust
judgment but was also seeking the reversal of the judgment of
acquittal. They had even filed an appeal from the judgment therein
of respondent judge. Thus, the Supreme Court held:

It has been held that the pendency of an appeal from a questioned

judgment renders the filing of administrative charges premature.
Where a sufficient judicial remedy exists, the filing of an
administrative complaint is not the proper remedy to correct the
actions of a judge.
In the present administrative complaints, it was not shown that an
appeal or any other proceeding had been filed to reverse the
respondent judges orders granting bail. It had not been shown that
the present administrative complaints had any purpose other then
seeking administrative sanctions against respondent judge.

Turning now to the merits of the administrative complaints, the

primordial issue is: Whether or not there is an ambiguity in the law
as to the classification of methamphetamine hydrochloride.

Under Section 3(x) of the R.A. No. 9165 the substance was defined
as:

Methamphetamine Hydrochloride or commonly known as Shabu,

Ice, Meth, or by its any other name. Refers to the drug having such
chemical composition, including any of its isomers or derivatives in
any form.

It can be noted that nothing in this provision indicates the

classification of the substance either as a dangerous or regulated
drug.

It is respondent judges position that shabu is not expressly

classified as a dangerous drug under Section 5 of R.A. No. 9165
and should therefore be considered merely as a chemical precursor,
to wit:

...

For clarity, the UN Single Convention was referred to in Section 3 of

R.A. No. 9165 in relation to the definitions of dangerous drugs and
controlled precursors, to wit:

(h) Controlled Precursors and Essential Chemicals. Include those

listed in Tables I and II of the 1988 UN Convention Against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances as
enumerated in the attached annex, which is an integral part of this
Act.
...

(j) Dangerous Drugs. Include those listed in the Schedules annexed

to the 1961 Single Convention on Narcotic Drugs, as amended by
the 1972 Protocol, and in the Schedules annexed to the 1971 Single
Convention on Psychotropic Substances as enumerated in the
attached annex which is an integral part of this Act.

It should be noted, however, that by the plain wordings of R.A. No.

9165 dangerous drugs are not limited to those substances listed in
the schedules attached to the 1961 United Nations Single
Convention on Narcotic Drugs because of the use of the word
include. That is, there are other substances which may be
considered dangerous drugs even if not listed in the above-
mentioned schedules.

It is also worth noting that under Section 11 of R.A. No. 9165,

Methamphetamine Hydrochloride was specifically mentioned as a
dangerous drug, to wit:

...

(5) 50 grams or more of methamphetamine hydrochloride or shabu;

...

It is clear, therefore, that the lawmakers intended to classify

Methamphetamine Hydrochloride or shabu as a dangerous drug.
Moreover, it would be absurd to consider methamphetamine
hydrochloride a dangerous drug under Section 11 of R.A. No. 9165
and merely a precursor under Section 5 of the same law.

In fine, there is no question that methamphetamine hydrochloride

is classified as a dangerous drug.

Having made the foregoing findings, the next issue that calls for
resolution is the penalty imposable to the criminal cases under
consideration. This is necessary in order to determine if the accused
are entitled to bail. Under Section 13 of Article III of the 1987
Constitution, an accused shall be entitled to bail as a matter of
right unless charged with an offense punishable with a capital
penalty.

The Court notes that the criminal cases under consideration can be
grouped into two (2): A) Crim. Case No. 03-065 (against Rosemarie
Pascual, Crim. Case No. 03-082 (against Rolando Uy), and Crim.
Case No. 03-288 (against Mary Jane Regencia), which involve
selling, trading, delivering or giving away Methamphetamine
Hydrochloride; and B) Crim. Case No. 03-265 (against Aiza Chona
Omadan) which involve possession of the said substance.

The investigating justice would first discuss Crim. Case No. 03-265
where the accused was charged with possession of 57.78 grams of
Methemphetamine Hydrochloride. Section 11 of R.A. No. 9165
provides that the penalty imposable is life imprisonment to death.
Therefore, in the Crim. Case No. 03-265 accused therein is not
entitled to bail as a matter of right. Rightly so, a hearing was
conducted before the bail was granted.

The investigating justice, after a careful consideration of the

evidence presented by the complainants, opines that there is
insufficient evidence to support the allegation that bail was hastily
granted to accused Aiza Chona Omadan. Therefore, the charge of
gross ignorance in relation to this case should be dismissed for lack
of factual basis.

The investigating justice will now tackle the other set of cases
(Crim. Case No. 03-065; Crim. Case No. 03-082; Crim. Case No. 03-
288). Under the law, these are punishable with penalty ranging
from life imprisonment to death. Pertinent portions of Section 5 of
R.A. No. 9165 reads:

...
As held in Managuelod vs. Paclibon, et al. (A.M. No. RTJ-02-1726,
March 29, 2004).

It is imperative that judges be conversant with basic legal principles

and possess sufficient proficiency in the law. In offenses punishable
by reclusion perpetua or death, the accused has no right to bail
when the evidence of guilt is strong. Respondent Judge Go should
have known the procedure to be followed when a motion for
admission to bail is filed by the accused. Extreme care, not to
mention the highest sense of personal integrity, is required of him
in granting bail, specially in case where bail is not a matter of right.
The fact that the provincial prosecutor interposed no objection to
the application for bail by the accused did not relieve respondent
judge of the duty to set the motion for bail for hearing. A hearing is
of utmost necessity because certain guidelines in fixing bail (the
nature of the crime, character and reputation of the accused,
weight of evidence against him, the probability of the accused
appearing at the trial, among other things) call for the presentation
of evidence. It was impossible for respondent judge to determine the
application of these guidelines in an ex-parte determination of the
propriety of Palacols motion for bail. Thus, for his failure to conduct
any hearing on the application for bail, we hold respondent Judge
Go guilty of gross ignorance of the law justifying the imposition of
the severest disciplinary sanction on him. (Emphasis supplied)

It is clear, therefore, that as to said criminal cases the accused were

likewise not entitled to bail as a matter of right, hence, a hearing for
the grant of bail should have been conducted. However, in this last
instance, no such hearing was conducted.

In fine, respondent judge erred in granting bail to the accused in

Crim. Case No. 03-065, Crim. Case No. 03-082, and Crim. Case No.
03-288 without hearing because the crime charge carries with it
capital penalty.
As to Crim. Case No. 03-065, Crim. Case No. 03-082, and Crim.
Case No. 03-288, the next issue to be resolved is: whether or not
the mistake amounted to gross ignorance of the law which would
justify an administrative sanction against respondent judge.

Respondent judge, naturally, argued that she cannot be held liable

asserting that to be held guilty of gross ignorance, the error must
have been gross, deliberate and malicious (Rollo, RTJ-04-1820, p.
74) and in absence of fraud, dishonesty, or corruption that judge
cannot be held liable (Rollo, RTJ-04-1820, p. 75).

However, the Supreme Court does not always require the presence
of malice to find erring judges liable for gross ignorance.

In the above-cited Managuelod case the Supreme Court held that

failure to hold a hearing before granting bail in crimes involving
capital punishment constitutes gross ignorance of the law, thus:

. . . Thus, for his failure to conduct any hearing on the application

for bail, we hold respondent Judge Go guilty of gross ignorance of
the law justifying the imposition of the severest disciplinary
sanction on him.

The same should hold true in the present administrative cases

considering that the criminal cases involved drugs, a major problem
of the country today.

In conclusion, the investigating justice finds respondent judge

guilty of gross ignorance of the law in relation to the granting of bail
without hearing in Crim. Case Nos. 03-065, 03-082 and 03-288 and
exonerate her as to the charge in relation to Criminal Case No. 03-
265.

...

The next issue then is the penalty imposable on respondent judge.

In Mupas vs. Espanol (A.M. No. RTJ-04-185014, July 14, 2004) the
Supreme Court enumerated the proper penalty for gross negligence
(sic), thus:

Under Section 8 of A.M. No. 01-8-10-SC amending Rule 140 of the

Rules of Court on the Discipline of Justices and Judges, which took
effect on October 1, 2001, gross ignorance of the law is classified as
a serious charge which carries with it a penalty of either dismissal
from service, suspension or a fine of more than P20,000.00 but not
exceeding P40,000.00.[10]

Based on the foregoing, the Investigating Justice made the following

recommendation:

WHEREFORE, in view of the foregoing, it is respectfully

recommended that respondent Judge Norma C. Perello be
DISMISSED on the ground of gross ignorance of law in relation to
the grant of bail in Criminal Case No. 03-065, Criminal Case No.
03-082, Criminal Case No. 03-288.[11]

The issue in these administrative cases is whether respondent

Judge may be administratively held liable for the grant of bail in the
particular criminal cases subject of the complaints. As earlier
stated, the criminal cases subject of the present administrative
complaints all involve violations of R.A. No. 9165, or the
Comprehensive Dangerous Drugs Act of 2002.

Admin. Matter No. RTJ-03-1817 particularly relates to Criminal

Case No. 03-265 (People of the Philippines vs. Aiza Chona Omadan),
involving the possession, custody, and control of 57.78 grams
of shabu, punishable under Section 11 thereof, which reads:

SEC. 11. Possession of Dangerous Drugs.-- The penalty of life

imprisonment to death and a fine ranging from Five Hundred
Thousand Pesos (P500,000.00) to Ten Million Pesos
(P10,000,000.00) shall be imposed upon any person, who unless
authorized by law, shall possess any dangerous drug in the
following quantities, regardless of the degree of purity thereof:
...

(5) 50 grams or more of methamphetamine hydrochloride or

shabu; (Emphasis supplied)

...

Under the foregoing provision, possession of 50 grams or more of

methamphetamine hydrochloride or shabu is punishable by life
imprisonment to death; hence, a capital offense.[12] As such, bail
becomes a matter of discretion. In this regard, Rule 114, Sec. 7 of
the Rules of Court states:

No person charged with the capital offense, or an offense

punishable by reclusion perpetua or life imprisonment, shall be
admitted to bail when the evidence of guilt is strong, regardless of
the stage of the criminal prosecution.

This provision is based on Section 13, Article III of the 1987

Constitution, which reads:

All persons, except those charged with offenses punishable

by reclusion perpetua when evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or be released on
recognizance as may be provided by law. The right to bail shall not
be impaired even when the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required.

The matter of determining whether or not the evidence is strong is a

matter of judicial discretion that remains with the judge.[13] Such
discretion must be sound and exercised within reasonable
bounds.[14]

Under the present rules, a hearing on an application for bail is

mandatory.[15] Whether bail is a matter of right or of discretion,
the prosecutor should be given reasonable notice of hearing, or at
least his recommendation on the matter must be sought. In case
an application for bail is filed, the judge is entrusted to observe the
following duties:

1. In all cases, whether bail is a matter of right or discretion, notify

the prosecutor of the hearing of the application for bail or require
him to submit his recommendation;

2. Where bail is a matter of discretion, conduct a hearing of the

application for bail regardless of whether or not the prosecution
refuses to present evidence to show that the guilt of the accused is
strong for the purpose of enabling the court to exercise its sound
discretion;

3. Decide whether the guilt of the accused is strong based on the

summary of evidence of the prosecution; and

4. If the guilt of the accused is not strong, discharge the accused

upon the approval of the bail bond. Otherwise the bail should be
denied.[16]

Based on the above-cited procedure and requirements, after the

hearing, the courts order granting or refusing bail must contain a
summary of the evidence for the prosecution. A summary is defined
as a comprehensive and usually brief abstract or digest of a text or
statement. Based on the summary of evidence, the judge formulates
his own conclusion on whether such evidence is strong enough to
indicate the guilt of the accused.[17]

In this case, respondent Judge complied with the foregoing duties.

A hearing was held on the petition; the prosecution was given the
opportunity to present its evidence in support of its stance;
respondent Judge based her findings on the prosecutions evidence,
namely, the testimonies of P02 Saturnino Mayonte and Arturo
Villarin; respondent Judges Order dated May 9, 2003 granting the
accuseds petition for bail contained a summary of the prosecutions
evidence; and since it was her conclusion that the evidence of
accused Omadans guilt is not strong, the petition for bail was
granted.[18] Respondent Judge did not violate procedural
requirements. Records show that respondent Judge afforded the
prosecution ample opportunity to present all the evidence it had
and there was no protest from the prosecution that it had been
deprived of its right to present against the accused. Thus, the Court
does not find any irregularity in the grant of bail in Criminal Case
No. 03-265 that would render respondent Judge administratively
liable.

It is noted that the other circumstances, complained of in this case,

do not relate solely to respondent Judges acts, but to the
prosecutions conduct in handling the case. Thus, P/Insp. Darwin S.
Butuyan stated in his report that there is something wrong in the
procedures and circumstances adopted by the Office of the City
Prosecutor of Muntinlupa City and Branch 276, RTC, Muntinlupa
City in handling the case leading to the granting of bail to accused
Aiza Chona Omadan y Chua.[19]

The Court recognizes that the manner in which the strength of an

accuseds guilt is proven still primarily rests on the prosecution. The
prosecutor has the right to control the quantum of evidence and the
order of presentation of the witnesses, in support of the denial of
bail. After all, all criminal actions are prosecuted under the
direction and control of the public prosecutor.[20] It was the
prosecutions judgment to limit the presentation of evidence to two
witnesses, as it felt that the testimonies of the other witnesses
would be merely corroborative. It is beyond respondent Judges
authority to compel the public prosecutor to exercise its discretion
in a way respondent Judge deems fit, so long as such exercise of
discretion will not defeat the purpose for which the hearing was
held, i.e., to determine whether strong evidence of guilt exists such
that the accused may not be entitled to bail.

In any event, the complainant in this case had also filed a letter-
complaint with the Department of Justice against the concerned
public prosecutors.[21] Such matter is best left handled by the
Department, and the Court will not interfere on the matter.

Admin. Matter No. RTJ-04-1820, however, portrays an entirely

different picture.

In this case, respondent Judge granted bail in Criminal Cases Nos.

03-065, 03-082, and 03-288 without the requisite hearing. In so
doing, it was respondent Judges defense that under R.A. No.
9165, shabu is not a dangerous drug but merely a controlled
precursor, in which the selling of less than 5 grams is punishable
only with imprisonment of 12 years to 20 years, and as such, bail is
a matter of right and a hearing is not required. Respondent Judge
argued that:

In determining whether methamphetamine hydrochloride or shabu

is indeed classified as a dangerous drug under the said Republic
Act, undersigned exhaustively studied the provision of this law and
found that in Letter H, Art. 1, Section 3: Definition of Terms,
Methamphetamine Hydrochloride is listed in Table II, No. 12 of the
1988 UN Convention Against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances, which list is attached annex, an integral
part of this Act, Methamphetamine and is listed as a CONTROLLED
PRECURSOR or ESSENTIAL CHEMICAL. This is more imperatively
classified as a chemical, in Letter X of the Definition, Sec. 3, Art. 1,
where shabu is considered as such chemical. Therefore, under the
definition by law itself, shabu or methamphetamine hydrochloride
is classified as a controlled precursor or essential chemical.

The definition of what are considered as DANGEROUS DRUGS, is

(sic) those in Letter J, Sec. 3, Art. 1 of R.A. 9165, listed in 1961
Singled Convention on Narcotic Drugs, as amended by the 1972
Protocol, which list is again an integral part of this Act.
Methamphetamine is NOT one of the enumerations of dangerous
drugs. Therefore, the selling or trading of this substance in a
quantity less than a gram is punishable with an imprisonment of
only twelve (12) years as provided by the second paragraph of
Section 5, Article II, is not on capital offense punishable with death
or life imprisonment, is bailable.

Section 11, Art. II, of the same Act, treats of POSSESSION NOT
SELLING, where possession of this substance is considered as a
capital offense, punishable with death or life imprisonment, only if
the accused is in possession of it in the quantity of 50 GRAMS (50
grams), irrespective of the purity of the substance. It becomes a
capital offense only if it is in the quantity of fifty grams (50 GRAMS)
under No. 5 of Section 11, Art. II. Corollarilly, if it is less than this
quantity, possession of methamphetamine hydrochloride is NOT
punishable with a capital penalty, hence, bailable! To stress
POSSESSION of Methamphetamine Hydrochloride is considered as
capital offense punishable with capital penalty if the quantity is 50
GRAMS (50 GRAMS), (Sec. 11, Art. II) while PUSHING of
methamphetamine hydrochloride (Paragraph 2, Sec. 5) to be
punishable with capital penalty must be in the quantity of FIVE
GRAMS (5 GRAMS), (Guidelines for RA 9165).[22]

To justify her granting bail in the three criminal cases, respondent

Judge insists that she did so because of her belief that
methamphetamine hydrochloride or shabu is merely a precursor
and therefore the sale thereof is not a capital offense. This opinion
is blatantly erroneous. One need not even go beyond the four
corners of R.A. No. 9165 to see respondent Judges palpable error in
the application of the law.

Respondent Judge need not exhaustively study R.A. No. 9165, as

she asserted, to determine the nature of methamphetamine
hydrochloride. A plain reading of the law would immediately show
that methamphetamine hydrochloride is a dangerous drug and not
a controlled precursor. If only respondent Judge prudently went
over the pertinent provisions of R.A. No. 9165, particularly Section
3, items (h) and (j), and properly made the corresponding reference
to the schedules and tables annexed thereto, she would have easily
ascertained that methamphetamine hydrochloride is listed in the
1971 UN Single Convention on Psychotropic Substances, which are
considered dangerous drugs. It is not listed in the 1988 UN
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, as respondent Judge stated.[23]

Dangerous Drugs are defined by Section 3, paragraph (j) of R.A. No.

9165, as including those in the Schedules listed annexed to the
1961 Single Convention on Narcotic Drugs, as amended by the
1972 Protocol, and in the Schedules annexed to the 1971 UN Single
Convention on Psychotropic Substances, which were made an
integral part of R.A. No. 9165.

Under the foregoing section, dangerous drugs are classified into:

(1) narcotic drugs, as listed in the 1961 Single Convention on
Narcotic Drugs, as amended by the 1972 Protocol; and
(2) psychotropic substances, as listed in the 1971 UN Single
Convention on Psychotropic Substances.

For purposes of this case, the list of substances in Schedule II of

the 1971 UN Single Convention of Psychotropic Substances is
hereby reproduced, to wit:

LIST OF SUBSTANCES IN SCHEDULE II

1. AMFETAMINE (AMPHETAMINE)

2. DEXAMFETAMINE (DEXAMPHETAMINE)

3. FENETYLLINE DRONABINOL

4. LEVAMFETAMINE

5. LEVOMETHAMPHETAMINE

6. MECLOQUALONE
7. METAMFETAMINE

(METHAMPHETAMINE)

8. METAMFETAMINE RACEMATE

9. METHAQUALONE

10. METHYLPHE NIDATE

11. PHENCYCLIDINE (PCP)

12. PHENMETRAZINE

13. SECOBARBITAL

14. DRONABINOL (delta-9-tetrahydro-cannabinol

and its stereochemical variants)

15. ZIPEPROL

16. 2C-B (4-bromo-2,5-dimethoxyphenethylamine)

It clearly shows that methamphetamine is a psychotropic

substance, or a dangerous drug.

On the other hand, under Section 3, paragraph (h) of R.A. No.

9165, controlled precursors and essential chemicals, refer to those
listed in Tables I and II of the 1988 UN Convention Against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances, which were
likewise made integral part of R.A. No. 9165, to wit:

TABLE I TABLE II

1. ACETIC ANHYDRIDE 1. ACETONE

2. N-ACETYLANTHRANILIC 2. ANTHRANILIC ACID

ACID

3. EPHEDRIN 3. ETHYL ETHER

4. ERGOMETRINE 4. HYDROCHLORIC
ACID

5. ERGOTAMINE 5. METHYL ETHYL

KETONE

6. ISOSAFROLE 6. PHENYLACETIC
ACID

7. LYSERGIC ACID 7. PIPERIDINE

8. 3,4- 8. SULPHURIC ACID

METHYLENEDIOXYPHENYL-
2 PROPANONE

9. NOREPHEDRINE 9. TOLUENE

10. 1-PHENYL-2-
PROPANONE

11. PIPERONAL

12. POTASSIUM
PERMANGANATE

13. PSEUDOEPHEDRINE

14. SAFROLE

It readily reveals that methamphetamine is not one of those listed

as controlled precursor or essential chemical.

Given the foregoing, methamphetamine hydrochloride is a

dangerous drug, and not a controlled precursor or essential
chemical. That methamphetamine and not methamphetamine
hydrochloride is the term specifically listed in Schedule II of the
1971 UN Single Convention of Psychotropic Substances does not
detract from the fact that it is a dangerous drug. Section 3,
paragraph (x) of R.A. No. 9165, states that methamphetamine
hydrochloride is a drug having such chemical composition,
including any of its isomers or derivatives in any form.

This is further strongly manifest in Section 11 of R.A. No. 9165,

wherein it is specifically provided that the possession of dangerous
drugs, such as methamphetamine hydrochloride or shabu, is
punishable with life imprisonment to death and a fine ranging from
Five Hundred Thousand Pesos (P500,000.00) to Ten Million Pesos
(P10,000,000.00), if the quantity thereof is 50 grams or more. It
would be absurd, to say the least, that Section 11 of R.A. No. 9165
would qualify methamphetamine hydrochloride as a dangerous
drug, while Section 5 of the same law, penalizing the sale thereof,
would treat it as a controlled precursor.

Had respondent Judge been more circumspect in going over the

pertinent provisions of R.A. No. 9165, she would certainly arrive at
the same conclusion. It does not even take an interpretation of the
law but a plain and simple reading thereof. Furthermore, had
respondent judge kept herself abreast of jurisprudence and
decisions of the Court,[24]she would have been apprised that in all
the hundreds and hundreds of cases[25] decided by the Court,
methamphetamine hydrochloride or shabu had always been
considered as a dangerous drug.

Given that methamphetamine hydrochloride is a dangerous drug,

the applicable provision in Criminal Case Nos. 03-065, 03-082, and
03-288 subject of Admin. Matter No. RTJ-04-1820, is Section 5,
paragraph 1 of R.A. No. 9165, which reads:

SECTION 5. Sale, Trading, Administration, Dispensation, Delivery,

Distribution and Transportation of Dangerous Drugs and/or
Controlled Precursors and Essential Chemicals. The penalty of life
imprisonment to death and fine ranging from Five hundred
thousand pesos (P500,000.00) to Ten million pesos
(P10,000,000.00) shall be imposed upon any person, who, unless
authorized by law, shall sell, trade, administer, dispense, deliver,
give away to another, distribute, dispatch in transit or transport
any dangerous drug, including any and all species of opium poppy
regardless of the quantity and purity involved, or shall act as a
broker in any of such transactions.

Regardless of quantity, the sale, trade, administration,

dispensation, delivery, distribution and transportation of shabu is
punishable by life imprisonment to death. Being a capital offense, it
is incumbent upon respondent Judge to hold a hearing on the
petitions/motions for bail filed by the accused therein to determine
whether evidence of guilt is strong. To grant an application for bail
and fix the amount thereof without a hearing duly called for the
purpose of determining whether the evidence of guilt is strong
constitutes gross ignorance or incompetence whose grossness
cannot be excused by a claim of good faith or excusable
negligence.[26]

In Gallardo vs. Tabamo,[27] the Court rejected the defense that the
judges failure to apply the clear provisions of the law is merely an
error of judgment, and the judge was held administratively liable for
gross ignorance of the law where the applicable legal provisions are
crystal clear and need no interpretation.

Moreover, such gross ignorance of law is in violation of Rule 3.01 of

the Code of Judicial Conduct, which states that a judge shall be
faithful to the law and maintain professional competence.

The indispensable nature of a bail hearing in petitions for bail has

always been ardently and indefatigably stressed by the Court. The
Code of Judicial Conduct enjoins judges to be faithful to the law
and maintain professional competence. A judge is called upon to
exhibit more than just a cursory acquaintance with statutes and
procedural rules; it is imperative that he be conversant with basic
legal principles and be aware of well-settled authoritative doctrines.
He should strive for excellence exceeded only by his passion for
truth, to the end that he be the personification of justice and the
Rule of Law.[28]

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.[29]

Even if a judge acted in good faith but his ignorance is so gross, he

should be held administratively liable.[30]

Under Rule 140 of the Rules of Court, as amended by A.M. No. 01-
8-10-SC, which took effect on October 1, 2001, gross ignorance of
the law is classified as a serious charge and is now punishable with
severe sanctions, to wit:

Sec. 11. Sanctions. A. If the respondent is guilty of a serious

charge, any of the following sanctions may be imposed:

1. Dismissal from the service, forfeiture of all or part of the benefits

as the Court may determine, and disqualification from
reinstatement or appointment to any public office, including
government-owned or controlled corporations. Provided, however,
that the forfeiture of benefits shall in no case include accrued leave
credits.

2. Suspension from office without salary and other benefits for more
than three (3) but not exceeding six (6) months; or

3. A fine of more than P20,000.00 but not exceeding P40,000.00.

In this case, the Investigating Justice recommended that

respondent Judge be dismissed from the service. The Court finds
such penalty to be too harsh. In similar cases,[31]the Court
imposed a fine on the respondents therein for gross ignorance of the
law for having granted bail to the accused without notice and
hearing. However, the Court takes judicial notice that this is not the
first time that respondent Judge was administratively fined. In A.M.
No. RTJ-02-1686,[32] a fine of P5,000.00 and a reprimand was
imposed on respondent Judge for dereliction of duty for her failure
to act on Civil Case No. 9-138 for three years. In A.M. No. RTJ-04-
1846,[33] respondent Judge was held administratively liable for
gross ignorance of the law, grave misconduct and oppression for the
delay of almost nine (9) months in the transmittal of the records of
Civil Case No. 01-268 to the Court of Appeals, and was
fined P20,000.00. Thus, the Court is imposing a penalty more
severe than a fine. Suspension from office for six (6) months
in Admin. Matter No. RTJ-04-1820, excluding Criminal Case No.
03-265 (People of the Philippines vs. Aiza Chona Omadan), is
sufficient and reasonable.

The Office of the Court Administrator (OCA) also notes, in its

Memorandum dated November 22, 2002, that respondent Judge
caused the release from the National Bilibid Prison of several
persons convicted of violation of the drugs law by granting the
petitions for habeas corpus filed in her court, i.e., Spl. Proc. Nos.
02-002, 02-008, 02-10, 98-023 and 98-048. The OCA further stated
that in Spl. Proc. Nos. 98-023 and 98-048, respondent Judge
granted the petitions without determining the veracity of the
allegations therein; without any material evidence in support of her
findings and conclusion; and that at the time the petitions were
granted, an appeal from the convictions in these two cases is
pending before the Court (G. R. Nos. 131622-23). Thus, the OCA
recommends that an investigation, report, and recommendation on
these two cases be made, and that it be authorized to conduct an
audit on all the petitions for habeas corpus in all the courts of the
Regional Trial Court of Muntinlupa City from 1998 to the
present.[34]

WHEREFORE, judgment is hereby rendered:

(1) In Admin. Matter No. RTJ-03-1817, DISMISSING the complaint
against respondent Judge; and,

(2) In Admin. Matter No. RTJ-04-1820, finding respondent Judge

Norma C. Perello, Presiding Judge of the Regional Trial Court
(Branch 276) of Muntinlupa City GUILTY of gross ignorance of law,
and she is hereby SUSPENDED for Six (6) Months, with warning
that a repetition of similar acts shall be dealt with more severely.

AS TO OTHER MATTERS:

(a) The Court ORDERS the Office of the Court Administrator to

initiate the appropriate complaint for grave misconduct and/or
gross ignorance of the law against respondent Judge, insofar as Spl.
Proc. Nos. 02-002, 02-008, 02-10, 98-023 and 98-048 are
concerned; and to conduct preliminary investigation and submit
report thereon within ninety (90) days from notice hereof.

(b) The Office of the Court Administrator is AUTHORIZED to

conduct an audit and submit a report within ninety (90) days from
notice hereof, on all the petitions for habeas corpus in all the courts
of the Regional Trial Court of Muntinlupa City from 1998 to
present.

SO ORDERED.
G.R. No. 197293 April 21, 2014

ALFREDO C. MENDOZA, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES AND JUNO CARS,
INC., Respondents.

DECISION

LEONEN, J.:

While the determination of probable cause to charge a person of a

crime is the sole function of the. prosecutor, the trial court may, in
the protection of one's fundamental right to liberty, dismiss the case
if, upon a personal assessment of the evidence, it finds that the
evidence does not establish probable cause.

This is a petition for review on certiorari1 assailing the Court of

Appeals' decision2 dated January 14, 2011, which reversed the
Regional Trial Court's dismissal of the complaint against petitioner
Alfredo C. Mendoza for qualified theft and estafa.

This case stems from a complaint-affidavit filed by Juno Cars, Inc.

through its representative, Raul C. Evangelista, on January 8, 2008
for qualified theft and estafa against Alfredo.3

In the complaint-affidavit, Juno Cars alleged that on June 2, 2007,

it hired Alfredo as Trade-In/Used Car Supervisor. On November 19,
2007, its Dealer/Operator, Rolando Garcia, conducted a partial
audit of the used cars and discovered that five (5) cars had been
sold and released by Alfredo without Rolando’s or the finance
manager’s permission.4

The partial audit showed that the buyers of the five cars made
payments, but Alfredo failed to remit the payments
totalling P886,000.00. It was further alleged that while there were
20 cars under Alfredo’s custody, only 18 were accounted for.
Further investigation revealed that Alfredo failed to turn over the
files of a 2001 Hyundai Starex and a Honda City 1.5 LXI. Juno Cars
alleged that taking into account the unremitted amounts and the
acquisition cost of the Honda City, Alfredo pilfered a total amount
of P1,046,000.00 to its prejudice and damage.5

In his counter-affidavit, Alfredo raised, among others, Juno Cars’

supposed failure to prove ownership over the five (5) cars or its right
to possess them with the purported unremitted payments. Hence, it
could not have suffered damage.6

On March 4, 2008, Provincial Prosecutor Rey F. Delgado issued a

Resolution7 finding probable cause and recommending the filing of
an information against Alfredo for qualified theft and estafa.

Alfredo moved for reconsideration, but the motion was denied.8 He

then filed a petition for review with the Department of Justice on
May 16, 2008.9

While Alfredo’s motion for reconsideration was still pending before

the Office of the City Prosecutor of Mandaluyong, two informations
for qualified theft10 and estafa11 were filed before the Regional
Trial Court, Branch 212, Mandaluyong City. On March 31, 2008,
Alfredo filed a motion for determination of probable cause12 before
the trial court. On April 28, 2008, he also filed a motion to defer
arraignment.

Several clarificatory hearings were scheduled but were not

conducted.13 On February 4, 2009, the parties agreed to submit all
pending incidents, including the clarificatory hearing, for
resolution.14

On March 3, 2009, the trial court, through Presiding Judge Rizalina

Capco-Umali, issued an order15 dismissing the complaint, stating
that:

After conducting an independent assessment of the evidence on

record which includes the assailed Resolution dated 04 March
2008, the court holds that the evidence adduced does not support a
finding of probable cause for the offenses of qualified theft and
estafa. x x x.16

Juno Cars filed a motion for reconsideration, which the trial court
denied on July 3, 2009.17

Juno Cars then filed a petition for certiorari with the Court of
Appeals, arguing that the trial court acted without or in excess of
its jurisdiction and with grave abuse of discretion when it dismissed
the complaint. It argued that "the determination of probable cause
and the decision whether or not to file a criminal case in court,
rightfully belongs to the public prosecutor."18

On January 14, 2011, the Court of Appeals rendered a

decision,19 reversed the trial court, and reinstated the case. In its
decision, the appellate court ruled that the trial court acted without
or in excess of its jurisdiction "in supplanting the public
prosecutor’s findings of probable cause with her own findings of
insufficiency of evidence and lack of probable cause."20

Aggrieved, Alfredo filed a petition for review under Rule 45 before

this court. In essence, he argued that the trial court was correct in
finding that there was no probable cause as shown by the evidence
on record. He argued that "judicial determination of probable cause
is broader than [the] executive determination of probable
cause"21and that "[i]t is not correct to say that the determination of
probable cause is exclusively vested on the prosecutor x x x."22

In its comment,23 Juno Cars argued that Alfredo presented

questions, issues, and arguments that were a mere rehash of those
already considered and passed upon by the appellate court.

The Office of the Solicitor General, arguing for public respondent,

stated in its comment24 that the appellate court correctly sustained
the public prosecutor in his findings of probable cause against
Alfredo. Since there was no showing of grave abuse of discretion on
the part of Prosecutor Rey F. Delgado, the trial court should respect
his determination of probable cause.

In his reply,25 Alfredo reiterated that "judicial determination of

probable cause[,] while not a superior faculty[,] covers a broader
encompassing perspective in the disposition of the issue on the
existence of probable cause."26He argued that the findings of the
trial court should be accorded greater weight than the appellate
court’s. It merely reviewed the findings of the trial court.

The primordial issue is whether the trial court may dismiss an

information filed by the prosecutor on the basis of its own
independent finding of lack of probable cause.

Time and again, this court has been confronted with the issue of
the difference between the determination of probable cause by the
prosecutor on one hand and the determination of probable cause by
the judge on the other. We examine these two concepts again.

Juno Cars filed a complaint against Alfredo for qualified theft27 and
estafa under Article 315, fourth paragraph, no. 3(c)28 of the
Revised Penal Code. Since qualified theft is punishable by reclusion
perpetua, a preliminary investigation must first be conducted "to
determine whether there is sufficient ground to engender a well-
founded belief that a crime has been committed and the respondent
is probably guilty thereof, and should be held for trial," in
accordance with Rule 112, Section 1 of the Rules on Criminal
Procedure.

At this stage, the conduct of the preliminary investigation and the

subsequent determination of the existence of probable cause lie
solely within the discretion of the public prosecutor.29 If upon
evaluation of the evidence, the prosecutor finds sufficient basis to
find probable cause, he or she shall then cause the filing of the
information with the court.
Once the information has been filed, the judge shall then
"personally evaluate the resolution of the prosecutor and its
supporting evidence"30 to determine whether there is probable
cause to issue a warrant of arrest. At this stage, a judicial
determination of probable cause exists.

In People v. Castillo and Mejia,31 this court has stated:

There are two kinds of determination of probable cause: executive

and judicial. The executive determination of probable cause is one
made during preliminary investigation. It is a function that properly
pertains to the public prosecutor who is given a broad discretion to
determine whether probable cause exists and to charge those whom
he believes to have committed the crime as defined by law and thus
should be held for trial. Otherwise stated, such official has the
quasi-judicial authority to determine whether or not a criminal case
must be filed in court. Whether or not that function has been
correctly discharged by the public prosecutor, i.e., whether or not
he has made a correct ascertainment of the existence of probable
cause in a case, is a matter that the trial court itself does not and
may not be compelled to pass upon.

The judicial determination of probable cause, on the other hand, is

one made by the judge to ascertain whether a warrant of arrest
should be issued against the accused. The judge must satisfy
himself that based on the evidence submitted, there is necessity for
placing the accused under custody in order not to frustrate the
ends of justice. If the judge finds no probable cause, the judge
cannot be forced to issue the arrest warrant.32

The difference is clear: The executive determination of probable

cause concerns itself with whether there is enough evidence to
support an Information being filed. The judicial determination of
probable cause, on the other hand, determines whether a warrant
of arrest should be issued. In People v. Inting:33
x x x Judges and Prosecutors alike should distinguish the
preliminary inquiry which determines probable cause for the
issuance of a warrant of arrest from the preliminary investigation
proper which ascertains whether the offender should be held for
trial or released. Even if the two inquiries are conducted in the
course of one and the same proceeding, there should be no
confusion about the objectives. The determination of probable cause
for the warrant of arrest is made by the Judge. The preliminary
investigation proper—whether or not there is reasonable ground to
believe that the accused is guilty of the offense charged and,
therefore, whether or not he should be subjected to the expense,
rigors and embarrassment of trial—is the function of the
Prosecutor.34 (Emphasis supplied)

While it is within the trial court’s discretion to make an

independent assessment of the evidence on hand, it is only for the
purpose of determining whether a warrant of arrest should be
issued. The judge does not act as an appellate court of the
prosecutor and has no capacity to review the prosecutor’s
determination of probable cause; rather, the judge makes a
determination of probable cause independent of the prosecutor’s
finding.

People v. Court of Appeals and Jonathan Cerbo35 discussed the

rationale. In that case, Jonathan Cerbo allegedly shot Rosalinda Dy
in the presence of his father, Billy Cerbo. An information for murder
was filed against Jonathan Cerbo. The daughter of Rosalinda Dy, as
private complainant, executed a complaint-affidavit charging Billy
Cerbo with conspiracy. The prosecutor then filed a motion to amend
the information, which was granted by the court. The information
was then amended to include Billy Cerbo as one of the accused, and
a warrant of arrest was issued against him.

Billy Cerbo filed a motion to quash the warrant arguing that it was
issued without probable cause. The trial court granted this motion,
recalled the warrant, and dismissed the case against him. The
Court of Appeals affirmed this dismissal. This court, however,
reversed the Court of Appeals and ordered the reinstatement of the
amended information against Billy Cerbo, stating that:

In granting this petition, we are not prejudging the criminal case or

the guilt or innocence of Private Respondent Billy Cerbo. We are
simply saying that, as a general rule, if the information is valid on
its face and there is no showing of manifest error, grave abuse of
discretion or prejudice on the part of the public prosecutor, courts
should not dismiss it for ‘want of evidence,’ because evidentiary
matters should be presented and heard during the trial. The
functions and duties of both the trial court and the public
prosecutor in "the proper scheme of things" in our criminal justice
system should be clearly understood.

The rights of the people from what could sometimes be an

"oppressive" exercise of government prosecutorial powers do need to
be protected when circumstances so require. But just as we
recognize this need, we also acknowledge that the State must
likewise be accorded due process. Thus, when there is no showing
of nefarious irregularity or manifest error in the performance of a
public prosecutor’s duties, courts ought to refrain from interfering
with such lawfully and judicially mandated duties.

In any case, if there was palpable error or grave abuse of discretion

in the public prosecutor’s finding of probable cause, the accused
can appeal such finding to the justice secretary and move for the
deferment or suspension of the proceedings until such appeal is
resolved.36 (Emphasis supplied)

In this case, the resolution dated March 4, 2008 of Prosecutor Rey

F. Delgado found that the facts and evidence were "sufficient to
warrant the indictment of [petitioner] x x x."37 There was nothing in
his resolution which showed that he issued it beyond the discretion
granted to him by law and jurisprudence.
While the information filed by Prosecutor Delgado was valid, Judge
Capco-Umali still had the discretion to make her own finding of
whether probable cause existed to order the arrest of the accused
and proceed with trial.

Jurisdiction over an accused is acquired when the warrant of arrest

is served. Absent this, the court cannot hold the accused for
arraignment and trial.

Article III, Section 2 of the Constitution states:

The right of the people to be secure in their persons, houses,

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

The Constitution prohibits the issuance of search warrants or

warrants of arrest where the judge has not personally determined
the existence of probable cause. The phrase "upon probable cause
to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may
produce" allows a determination of probable cause by the judge ex
parte.

For this reason, Section 6, paragraph (a) of Rule 112 of the Rules on
Criminal Procedure mandates the judge to "immediately dismiss the
case if the evidence on record fails to establish probable cause."
Section 6, paragraph (a) of Rule 112 reads:

Section 6. When warrant of arrest may issue. — (a) By the Regional

Trial Court. — Within ten (10) days from the filing of the complaint
or information, the judge shall personally evaluate the resolution of
the prosecutor and its supporting evidence. He may immediately
dismiss the case if the evidence on record clearly fails to establish
probable cause. If he finds probable cause, he shall issue a warrant
of arrest, or a commitment order if the accused has already been
arrested pursuant to a warrant issued by the judge who conducted
the preliminary investigation or when the complaint or information
was filed pursuant to section 7 of this Rule. In case of doubt on the
existence of probable cause, the judge may order the prosecutor to
present additional evidence within five (5) days from notice and the
issue must be resolved by the court within thirty (30) days from the
filing of the complaint of information.

In People v. Hon. Yadao:38

Section 6, Rule 112 of the Rules of Court gives the trial court three
options upon the filing of the criminal information: (1) dismiss the
case if the evidence on record clearly failed to establish probable
cause; (2) issue a warrant of arrest if it finds probable cause; and
(3) order the prosecutor to present additional evidence within five
days from notice in case of doubt as to the existence of probable
cause.

But the option to order the prosecutor to present additional

evidence is not mandatory.1âwphi1 The court’s first option under
the above is for it to "immediately dismiss the case if the evidence
on record clearly fails to establish probable cause." That is the
situation here: the evidence on record clearly fails to establish
probable cause against the respondents.39 (Emphasis supplied)

It is also settled that "once a complaint or information is filed in

court, any disposition of the case, whether as to its dismissal or the
conviction or the acquittal of the accused, rests in the sound
discretion of the court."40

In this case, Judge Capco-Umali made an independent assessment

of the evidence on record and concluded that "the evidence adduced
does not support a finding of probable cause for the offenses of
qualified theft and estafa."41 Specifically, she found that Juno Cars
"failed to prove by competent evidence"42 that the vehicles alleged
to have been pilfered by Alfredo were lawfully possessed or owned
by them, or that these vehicles were received by Alfredo, to be able
to substantiate the charge of qualified theft. She also found that the
complaint "[did] not state with particularity the exact value of the
alleged office files or their valuation purportedly have been removed,
concealed or destroyed by the accused,"43 which she found crucial
to the prosecution of the crime of estafa under Article 315, fourth
paragraph, no. 3(c) of the Revised Penal Code. She also noted that:

x x x As a matter of fact, this court had even ordered that this case
be set for clarificatory hearing to clear out essential matters
pertinent to the offense charged and even directed the private
complainant to bring documents relative to the same/payment as
well as affidavit of witnesses/buyers with the end view of satisfying
itself that indeed probable cause exists to commit the present case
which private complainant failed to do.44

Accordingly, with the present laws and jurisprudence on the matter,

Judge Capco-Umali correctly dismissed the case against Alfredo.

Although jurisprudence and procedural rules allow it, a judge must

always proceed with caution in dismissing cases due to lack of
probable cause, considering the preliminary nature of the evidence
before it. It is only when he or she finds that the evidence on hand
absolutely fails to support a finding of probable cause that he or
she can dismiss the case. On the other hand, if a judge finds
probable cause, he or she must not hesitate to proceed with
arraignment and trial in order that justice may be served.

WHEREFORE, the petition is GRANTED. The decision dated

January 14, 2011 of the Court of Appeals in CA-G.R. SP. No.
110774 is REVERSED and SET ASIDE. Criminal Case Nos. MC08-
11604-05 against Alfredo C. Mendoza are DISMISSED.
SO ORDERED.

G.R. No. 183345, September 17, 2014

MA. GRACIA HAO AND DANNY HAO, Petitioners, v. PEOPLE OF

THE PHILIPPINES, Respondent.

DECISION

BRION, J.:

Before this Court is the petition for review on certiorari1 under Rule
45 of the Rules of Court, filed by Ma. Gracia Hao and Danny Hao
(petitioners). They seek the reversal of the Court of Appeals’ (CA)
decision2 dated February 28, 2006 and resolution3 dated June 13,
2008 in CA-G.R. SP No. 86289. These CA rulings affirmed the
February 26, 20044 and July 26, 20045 orders of the Regional Trial
Court (RTC) of Manila, which respectively denied the petitioners’
motion to defer arraignment and motion to lift warrant of
arrest.6cralawlawlibrary

Factual Antecedents

On July 11, 2003 private complainant Manuel Dy y Awiten (Dy)

filed a criminal complaint against the petitioners and Victor Ngo
(Ngo) for syndicated estafa penalized under Article 315(2)(a) of the
Revised Penal Code (RPC), as amended, in relation with Presidential
Decree (PD) No. 1689.7cralawlawlibrary

Dy alleged that he was a long-time client of Asiatrust Bank,

Binondo Branch where Ngo was the manager. Because of their good
business relationship, Dy took Ngo’s advice to deposit his money in
an investment house that will give a higher rate of return. Ngo then
introduced him to Ma. Gracia Hao (Gracia), also known as Mina
Tan Hao, who presented herself as an officer of various reputable
companies and an incorporator of State Resources Development
Corporation (State Resources), the recommended company that can
give Dy his higher investment return.8cralawlawlibrary

Relying on Ngo and Gracia’s assurances, Dy initially invested in

State Resources the approximate amount of Ten Million Pesos
(P10,000,000.00). This initial investment earned the promised
interests, leading Dy, at the urging of Gracia, to increase his
investment to almost One Hundred Million Pesos
(P100,000,000.00). Dy increased his investments through several
checks he issued in the name of State Resources.9 In return,
Gracia also issued several checks to Dy representing his earnings
for his investment. Gracia issued checks in the total amount of One
Hundred Fourteen Million, Two Hundred Eighty Six Thousand,
Eighty Six Pesos and Fourteen Centavos (P114,286,086.14). All
these checks10were subsequently dishonored when Dy deposited
them.

Dy sought the assistance of Ngo for the recovery of the amount of

the dishonored checks. Ngo promised assistance, but after a few
months, Dy found out that Ngo already resigned from Asiatrust
Bank and could no longer be located. Hence, he confronted Gracia
regarding the dishonored checks. He eventually learned that Gracia
invested his money in the construction and realty business of
Gracia’s husband, Danny Hao (Danny). Despite their promises to
pay, the petitioners never returned Dy’s money.

On July 17, 2003, Dy filed a supplemental affidavit to include in the

criminal complaint Chester De Joya, Allan Roxas, Samantha Roxas,
Geraldine Chiong, and Lyn Ansuas – all incorporators and/or
directors of State Resources.11cralawlawlibrary

On the basis of Dy’s complaint12 and supplemental affidavit,13 the

public prosecutor filed an information14 for
syndicated estafa against the petitioners and their six co-accused.
The case was docketed as Criminal Case No. 03-219952 and was
raffled to respondent RTC of Manila, Branch 40.

Judge Placido Marquez issued warrants of arrest against the

petitioners and the other accused. Consequently, petitioners
immediately filed a motion to defer arraignment and motion to lift
warrant of arrest. In their twin motions, they invoked the absence of
probable cause against them and the pendency of their petition for
review with the Department of Justice (DOJ).15cralawlawlibrary

In its February 26, 2004 order, the trial court denied the
petitioners’ twin motions.16 The petitioners moved for
reconsideration but the trial court also denied this in its July 26,
2004 order.

Consequently, the petitioners filed a petition for certiorari under

Rule 65 of the Rules of Court with the CA.

The CA’s Ruling

The CA affirmed the denial of the petitioners’ motion to defer

arraignment and motion to lift warrant of arrest.

In determining probable cause for the issuance of a warrant of

arrest, a judge is mandated to personally evaluate the resolution of
the prosecutor and its supporting evidence.17 The CA noted that
Judge Marquez only issued the warrants of arrest after his personal
examination of the facts and circumstances of the case. Since the
judge complied with the Rules, the CA concluded that no grave
abuse of discretion could be attributed to him.18cralawlawlibrary

In its decision, however, the CA opined that the evidence on record

and the assertions in Dy’s affidavits only show probable cause for
the crime of simple estafa, not syndicated estafa. Under PD No.
1689, in order for syndicated estafa to exist, the swindling must
have been committed by five or more persons, and the fraud must
be against the general public or at least a group of persons. In his
complaint-affidavit, Dy merely stated that he relied on the
petitioners’ false representations and was defrauded into parting
with his money, causing him damage.19 Since there was no
evidence that State Resources was formed to defraud the public in
general or that it was used to solicit money from other persons
aside from Dy, then the offense charged should only be for
simple estafa.20cralawlawlibrary

Nevertheless, the CA found that the trial court did not commit grave
abuse of discretion in issuing the warrants of arrest against the
petitioners as there was still probable cause to believe that the
petitioners committed the crime of simple estafa.21cralawlawlibrary

The Petition

The petitioners submit that an examination of Dy’s affidavits shows

inconsistencies in his cited factual circumstances. These
inconsistencies, according to the petitioners, negate the existence of
probable cause against them for the crime charged.

The petitioners also contend that it was only Ngo who enticed Dy to
invest his money. As early as August 1995, State Resources had
already been dissolved, thus negating the assertion that Dy
advanced funds for this corporation.22 They question the fact that
it took Dy almost five years to file his complaint despite his
allegation that he lost almost P100,000,000.00.23cralawlawlibrary

Lastly, the petitioners claim that the warrants of arrest issued

against them were null and void. Contrary to the trial court’s
findings, the CA noted in the body of its decision, that PD 1689 was
inapplicable to their case. There was no evidence to show that
State Resources was formed to solicit funds not only from Dy but
also from the general public. Since simple estafa and
syndicated estafa are two distinct offenses, then the warrants of
arrest issued to petitioners were erroneous because these warrants
pertained to two different crimes.24cralawlawlibrary

The Court’s Ruling

We resolve to DENY the petition.

Procedural Consideration

We note that the present petition questions the CA’s decision and
resolution on the petition for certiorari the petitioners filed with that
court. At the CA, the petitioners imputed grave abuse of discretion
against the trial court for the denial of their twin motions to defer
arraignment and to lift warrant of arrest.

This situation is similar to the procedural issue we addressed in the

case of Montoya v. Transmed Manila Corporation25 where we faced
the question of how to review a Rule 45 petition before us, a CA
decision made under Rule 65. We clarified in this cited case the
kind of review that this Court should undertake given the
distinctions between the two remedies. In Rule 45, we consider the
correctness of the decision made by an inferior court. In contrast, a
Rule 65 review focuses on jurisdictional errors.

As in Montoya, we need to scrutinize the CA decision in the same

context that the petition for certiorari it ruled upon was presented
to it. Thus, we need to examine the CA decision from the prism
of whether it correctly determined the presence or absence of grave
abuse of discretion on the part of the trial court and not on the
basis of whether the trial court’s denial of petitioners’ motions was
strictly legally correct. In question form, the question to ask is: did
the CA correctly determine whether the trial court committed grave
abuse of discretion in denying petitioners’ motions to defer
arraignment and lift warrant of arrest?

Probable Cause for the Issuance

of a Warrant of Arrest

Under the Constitution26 and the Revised Rules of Criminal

Procedure,27 a judge is mandated to personally determine the
existence of probable cause after his personal evaluation of the
prosecutor’s resolution and the supporting evidence for the crime
charged. These provisions command the judge to refrain from
making a mindless acquiescence to the prosecutor’s findings and to
conduct his own examination of the facts and circumstances
presented by both parties.

Section 5(a) of Rule 112, grants the trial court three options upon
the filing of the criminal complaint or information. He may: a)
dismiss the case if the evidence on record clearly failed to establish
probable cause; b) issue a warrant of arrest if it finds probable
cause; or c) order the prosecutor to present additional evidence
within five days from notice in case of doubt on the existence of
probable cause.28cralawlawlibrary

In the present case, the trial court chose to issue warrants of arrest
to the petitioners and their co-accused. To be valid, these warrants
must have been issued after compliance with the requirement that
probable cause be personally determined by the judge. Notably at
this stage, the judge is tasked to merely determine the probability,
not the certainty, of guilt of the accused. In doing so, he need not
conduct a de novo hearing; he only needs to personally review the
prosecutor's initial determination and see if it is supported by
substantial evidence.29cralawlawlibrary
The records showed that Judge Marquez made a personal
determination of the existence of probable cause to support the
issuance of the warrants. The petitioners, in fact, did not present
any evidence to controvert this. As the trial court ruled in its
February 26, 2004 order:chanRoblesvirtualLawlibrary

The non-arrest of all the accused or their refusal to surrender

practically resulted in the suspension of arraignment exceeding the
sixty (60) days counted from the filing of co-accused De Joya’s
motions, which may be considered a petition for review, and that of
co-accused Spouses Hao’s own petition for review. This is not to
mention the delay in the resolution by the Department of
Justice. On the other hand, co-accused De Joya’s motion to
determine probable cause and co-accused Spouses Hao’s motion to
lift warrant of arrest have been rendered moot and academic with
the issuance of warrants of arrest by this presiding judge after his
personal examination of the facts and circumstances strong enough
in themselves to support the belief that they are guilty of the crime
that in fact happened.30 [Emphasis ours]

Under this situation, we conclude that Judge Marquez did not

arbitrarily issue the warrants of arrest against the petitioners. As
stated by him, the warrants were only issued after his personal
evaluation of the factual circumstances that led him to believe that
there was probable cause to apprehend the petitioners for their
commission of a criminal offense.

Distinction between Executive and

Judicial Determination of Probable
Cause

In a criminal prosecution, probable cause is determined at two

stages. The first is at the executive level, where determination is
made by the prosecutor during the preliminary investigation, before
the filing of the criminal information. The second is at the judicial
level, undertaken by the judge before the issuance of a warrant of
arrest.

In the case at hand, the question before us relates to the judicial

determination of probable cause. In order to properly resolve if the
CA erred in affirming the trial court’s issuance of the warrants of
arrest against the petitioners, it is necessary to scrutinize the crime
of estafa, whether committed as a simple offense or through a
syndicate.

The crime of swindling or estafa is covered by Articles 315-316 of

the RPC. In these provisions, the different modes by
which estafa may be committed, as well as the corresponding
penalties for each are outlined. One of these modes is estafa by
means of deceit. Article 315(2)(a) of the RPC defines how this
particular crime is perpetrated:chanRoblesvirtualLawlibrary

2. By means of any of the following false pretenses or fraudulent

acts executed prior to or simultaneously with the commission of the
fraud:chanroblesvirtuallawlibrary

(a) By using fictitious name, or falsely pretending to possess

power, influence, qualifications, property, credit, agency, business
or imaginary transactions, or by means of other similar deceits.

Under this provision, estafa has the following elements: 1) the

existence of a false pretense, fraudulent act or fraudulent means; 2)
the execution of the false pretense, fraudulent act or fraudulent
means prior to or simultaneously with the commission of the fraud;
3) the reliance by the offended party on the false pretense,
fraudulent act or fraudulent means, which induced him to part with
his money or property; and 4) as a result, the offended party
suffered damage.31cralawlawlibrary
As Dy alleged in his complaint-affidavit, Ngo and Gracia induced
him to invest with State Resources and promised him a higher rate
of return.32 Because of his good business relationship with Ngo
and relying on Gracia’s attractive financial representations, Dy
initially invested the approximate amount of P10,000,000.00.

This first investment earned profits. Thus, Dy was enticed by Gracia

to invest more so that he eventually advanced almost
P100,000,000.0033 with State Resources. Gracia’s succeeding
checks representing the earnings of his investments, however, were
all dishonored upon deposit.34 He subsequently learned that the
petitioners used his money for Danny’s construction and realty
business.35 Despite repeated demands and the petitioners’
constant assurances to pay, they never returned Dy’s invested
money and its supposed earnings.36cralawlawlibrary

These cited factual circumstances show the elements of estafa by

means of deceit. The petitioners induced Dy to invest in State
Resources promising higher returns. But unknown to Dy, what
occurred was merely a ruse to secure his money to be used in
Danny’s construction and realty business. The petitioners’ deceit
became more blatant when they admitted in their petition that as
early as August 1995, State Resources had already been
dissolved.37 This admission strengthens the conclusion that the
petitioners misrepresented facts regarding themselves and State
Resources in order to persuade Dy to part with his money for
investment with an inexistent corporation.

These circumstances all serve as indicators of the petitioners’

deceit. “Deceit is the false representation of a matter of fact,
whether by words or conduct, by false or misleading allegations, or
by concealment of that which should have been disclosed, which
deceives or is intended to deceive another, so that he shall act upon
it to his legal injury.”38cralawlawlibrary

Thus, had it not been for the petitioners’ false representations and
promises, Dy would not have placed his money in State Resources,
to his damage. These allegations cannot but lead us to the
conclusion that probable cause existed as basis to arrest the
petitioners for the crime of estafa by means of deceit.

We now address the issue of whether estafa in this case was

committed through a syndicate.

Under Section 1 of PD No. 1689,39 there is syndicated estafa if the

following elements are present: 1) estafa or other forms of swindling
as defined in Articles 315 and 316 of the RPC was committed; 2)
the estafa or swindling was committed by a syndicate of five or more
persons; and 3) the fraud resulted in the misappropriation of
moneys contributed by stockholders, or members of rural banks,
cooperatives, “samahang nayon[s],” or farmers associations or of
funds solicited by corporations/associations from the general
public.40cralawlawlibrary

The factual circumstances of the present case show that the first
and second elements of syndicated estafa are present; there is
probable cause for violation of Article 315(2)(a) of the RPC against
the petitioners. Moreover, in Dy’s supplemental complaint-affidavit,
he alleged that the fraud perpetrated against him was committed,
not only by Ngo and the petitioners, but also by the other officers
and directors of State Resources. The number of the accused who
allegedly participated in defrauding Dy exceeded five, thus
satisfying the requirement for the existence of a syndicate.

However, the third element of the crime is patently lacking. The

funds fraudulently solicited by the corporation must come from the
general public. In the present case, no evidence was presented to
show that aside from Dy, the petitioners, through State Resources,
also sought investments from other people. Dy had no co-
complainants alleging that they were also deceived to entrust their
money to State Resources. The general public element was not
complied with. Thus, no syndicated estafa allegedly took place, only
simple estafa by means of deceit.

Despite this conclusion, we still hold that the CA did not err in
affirming the trial court’s denial of the petitioners’ motion to lift
warrant of arrest.

A warrant of arrest should be issued if the judge after personal

evaluation of the facts and circumstances is convinced that
probable cause exists that an offense was committed.

Probable cause for the issuance of a warrant of arrest is the

existence of such facts and circumstances that would lead a
reasonably discreet and prudent person to believe that an offense
was committed by the person sought to be arrested.41 This must be
distinguished from the prosecutor’s finding of probable cause which
is for the filing of the proper criminal information. Probable cause
for warrant of arrest is determined to address the necessity
of placing the accused under custody in order not to frustrate the
ends of justice.42cralawlawlibrary

In People v. Castillo and Mejia,43 we explained the distinction

between the two kinds of probable cause
determination:chanRoblesvirtualLawlibrary

There are two kinds of determination of probable cause: executive

and judicial. The executive determination of probable cause is one
made during preliminary investigation. It is a function that
properly pertains to the public prosecutor who is given a broad
discretion to determine whether probable cause exists and to
charge those whom he believes to have committed the crime as
defined by law and thus should be held for trial. Otherwise stated,
such official has the quasi-judicial authority to determine whether
or not a criminal case must be filed in court. Whether or not that
function has been correctly discharged by the public
prosecutor, i.e., whether or not he has made a correct
ascertainment of the existence of probable cause in a case, is a
matter that the trial court itself does not and may not be compelled
to pass upon.

The judicial determination of probable cause, on the other hand, is

one made by the judge to ascertain whether a warrant of arrest
should be issued against the accused. The judge must satisfy
himself that based on the evidence submitted, there is necessity for
placing the accused under custody in order not to frustrate the
ends of justice. If the judge finds no probable cause, the judge
cannot be forced to issue the arrest warrant.44 [Emphasis ours]

With our conclusion that probable cause existed for the crime of
simple estafa and that the petitioners have probably committed it, it
follows that the issuance of the warrants of arrest against the
petitioners remains to be valid and proper. To allow them to go scot-
free would defeat rather than promote the purpose of a warrant of
arrest, which is to put the accused in the court’s custody to avoid
his flight from the clutches of justice.

Moreover, we note that simple estafa and syndicated estafa are not
two entirely different crimes. Simple estafa is a crime necessarily
included in syndicated estafa. An offense is necessarily included in
another offense when the essential ingredients of the former
constitute or form a part of those constituting the
latter.45cralawlawlibrary
Under this legal situation, only a formal amendment of the filed
information under Section 14, Rule 110 of the Rules of Court46 is
necessary; the warrants of arrest issued against the petitioners
should not be nullified since probable cause exists for simple estafa.

Suspension of Arraignment

Under Section 11(c), Rule 116 of the Rules of Court, an arraignment

may be suspended if there is a petition for review of the resolution
of the prosecutor pending at either the DOJ, or the Office of the
President. However, such period of suspension should not exceed
sixty (60) days counted from the filing of the petition with the
reviewing office.

As the petitioners alleged, they filed a petition for review with the
DOJ on November 21, 2003. Since this petition had not been
resolved yet, they claimed that their arraignment should be
suspended indefinitely.

We emphasize that the right of an accused to have his arraignment

suspended is not an unqualified right. In Spouses Trinidad v.
Ang,47 we explained that while the pendency of a petition for review
is a ground for suspension of the arraignment, the Rules limit the
deferment of the arraignment to a period of 60 days reckoned from
the filing of the petition with the reviewing office. It follows,
therefore, that after the expiration of the 60-day period, the trial
court is bound to arraign the accused or to deny the motion to defer
arraignment.48cralawlawlibrary

As the trial court found in its February 26, 2004 order, the DOJ’s
delay in resolving the petitioners’ petition for review had already
exceeded 60 days. Since the suspension of the petitioners’
arraignment was already beyond the period allowed by the Rules,
the petitioners’ motion to suspend completely lacks any legal basis.
As a final note, we observe that the resolution of this case had long
been delayed because of the petitioners’ refusal to submit to the
trial court’s jurisdiction and their erroneous invocation of the Rules
in their favor. As there is probable cause for the petitioners’
commission of a crime, their arrest and arraignment should now
ensue so that this case may properly proceed to trial, where the
merits of both the parties’ evidence and allegations may be weighed.

WHEREFORE, premises considered, we hereby DENY the petition

and AFFIRM WITH MODIFICATION the February 28, 2006 decision
and June 13, 2008 resolution of the Court of Appeals in CA-G.R. SP
No. 86289. We hereby order that petitioners Ma. Gracia Hao and
Danny Hao be charged for simple estafa under Article 315(2)(a) of
the Revised Penal Code, as amended and be arraigned for this
charge. The warrants of arrest issued stand.

SO ORDERED.cralawred
G.R. No. 182601 November 10, 2014

JOEY M. PESTILOS, DWIGHT MACAPANAS, MIGUEL GACES,

JERRY FERNANDEZ and RONALD MUNOZ,Petitioners,
vs.
MORENO GENEROSO and PEOPLE OF THE
PHILIPPINES, Respondents.

DECISION

BRION, J.:

We resolve the petition for review on certiorari under Rule 45 of the

Rules of Court challenging the decision1dated January 21, 2008
and the resolution2 dated April 17, 2008 of the Court of Appeals
(CA) in CAG.R. SP No. 91541.

The appealed decision affirmed the Order dated March 16, 2005 of
the Regional Trial Court (RTC), Branch 96, Quezon City, denying
Joey M. Pestilos, Dwight Macapanas, Miguel Gaces, Jerry
Fernandez, and Ronald Munoz's (petitioners) Urgent Motion for
Regular Preliminary Investigation, as well as their subsequent
motion for reconsideration.

The Antecedent Facts

The records of the case reveal that on February 20, 2005, at around
3: 15 in the morning, an altercation ensued between the petitioners
and Atty. Moreno Generoso (Atty. Generoso) at Kasiyahan Street,
Barangay Holy Spirit, Quezon City where the petitioners and Atty.
Generoso reside.3

Atty. Generoso called the Central Police District, Station 6 (Batas an

Hills Police Station) to report the incident.4Acting on this report,
Desk Officer SPOl Primitivo Monsalve (SPOJ Monsalve) dispatched
SP02 Dominador Javier (SP02 Javier) to go to the scene of the crime
and to render assistance.5 SP02 Javier, together with augmentation
personnel from the Airforce, A2C Alano Sayson and Airman Ruel
Galvez, arrived at the scene of the crime less than one hour after
the alleged altercation6 and they saw Atty. Generoso badly beaten.7

Atty. Generoso then pointed to the petitioners as those who mauled

him. This prompted the police officers to "invite" the petitioners to
go to Batasan Hills Police Station for investigation.8 The petitioners
went with the police officers to Batasan Hills Police Station.9 At the
inquest proceeding, the City Prosecutor of Quezon City found that
the petitioners stabbed Atty. Generoso with a bladed weapon. Atty.
Generoso fortunately survived the attack.10

In an Information dated February 22, 2005, the petitioners were

indicted for attempted murder allegedly committed as follows:

That on or about the 20th h day of February, 2005, in Quezon City,

Philippines, the said accused, conspiring together, confederating
with and mutually helping one another, with intent to kill, qualified
with evident premeditation, treachery and taking advantage of
superior strength, did then and there, willfully, unlawfully and
feloniously commence the commission of the crime of Murder
directly by overt acts, by then and there stabbing one Atty.
MORENO GENEROSO y FRANCO, with a bladed weapon, but said
accused were not able to perform all the acts of execution which
would produce the crime of Murder by reason of some cause/s or
accident other than their own spontaneous desistance, that is, said
complainant was able to parry the attack, to his damage and
prejudice.

CONTRARY TO LAW.11

On March 7, 2005, the petitioners filed an Urgent Motion for

Regular Preliminary Investigation12 on the ground that they had
not been lawfully arrested. They alleged that no valid warrantless
arrest took place since the police officers had no personal
knowledge that they were the perpetrators of the crime. They also
claimed that they were just "invited" to the police station. Thus, the
inquest proceeding was improper, and a regular procedure for
preliminary investigation should have been performed pursuant to
Rule 112 of the Rules of Court.13

On March 16, 2005, the RTC issued its order denying the
petitioners' Urgent Motion for Regular Preliminary
Investigation.14 The court likewise denied the petitioners' motion
for reconsideration.15

The petitioners challenged the lower court's ruling before the CA on

a Rule 65 petition for certiorari. They attributed grave abuse of
discretion, amounting to lack or excess of jurisdiction, on the R TC
for the denial of their motion for preliminary investigation.16

The Assailed CA Decision

On January 21, 2008, the CA issued its decision dismissing the

petition for lack of merit.17 The CA ruled that the word "invited" in
the Affidavit of Arrest executed by SP02 Javier carried the meaning
of a command. The arresting officer clearly meant to arrest the
petitioners to answer for the mauling of Atty. Generoso. The CA also
recognized that the arrest was pursuant to a valid warrantless
arrest so that an inquest proceeding was called for as a
consequence. Thus, the R TC did not commit any grave abuse of
discretion in denying the Urgent Motion for Regular Preliminary
Investigation.

The CA saw no merit in the petitioners' argument that the order

denying the Urgent Motion for Regular Preliminary Investigation is
void for failure to clearly state the facts and the law upon which it
was based, pursuant to Rule 16, Section 3 of the Revised Rules of
Court. The CA found that the RTC had sufficiently explained the
grounds for the denial of the motion.

The petitioners moved for reconsideration, but the CA denied the

motion in its Resolution of April 17, 2008;18hence, the present
petition.
The Issues

The petitioners cited the following assignment of errors:

I.

WHETHER OR NOT THE PETITIONERS WERE VALIDLY ARRESTED

WITHOUT A WARRANT.

II.

WHETHER OR NOT THE PETITIONERS WERE LAWFULLY

ARRESTED WHEN THEY WERE MERELY INVITED TO THE POLICE
PRECINCT.

III.

WHETHER OR NOT THE ORDER DENYING THE MOTION FOR

PRELIMINARY INVESTIGATION IS VOID FOR FAILURE TO STATE
THE FACTS AND THE LAW UPON WHICH IT WAS BASED.

The petitioners primarily argue that they were not lawfully arrested.
No arrest warrant was ever issued; they went to the police station
only as a response to the arresting officers' invitation. They even
cited the Affidavit of Arrest, which actually used the word "invited. "

The petitioners also claim that no valid warrantless arrest took

place under the terms of Rule 112, Section 7 of the Revised Rules of
Court. The incident happened two (2) hours before the police
officers actually arrived at the crime scene. The police officers could
not have undertaken a valid warrantless arrest as they had no
personal knowledge that the petitioners were the authors of the
crime.

The petitioners additionally argue that the R TC' s Order denying

the Urgent Motion for Regular Preliminary Investigation is void
because it was not properly issued.

The Court's Ruling

We find the petition unmeritorious and thus uphold the RTC Order.
The criminal proceedings against the petitioners should now
proceed.

It is unfortunate that the kind of motion that the petitioners filed

has to reach this Court for its resolution. The thought is very
tempting that the motion was employed simply to delay the
proceedings and that the use of Rule 65 petition has been abused.

But accepting things as they are, this delay can be more than
compensated by fully examining in this case the legalities
surrounding warrantless warrants and establishing the proper
interpretation of the Rules for the guidance of the bench and the
bar. These Rules have evolved over time, and the present case
presents to us the opportunity to re-trace their origins, development
and the current applicable interpretation.

I. Brief history on warrantless arrests

The organic laws of the Philippines, specifically, the Philippine Bill

of 1902,19 and the 1935,20 197321 and 198722Constitutions all
protect the right of the people to be secure in their persons against
unreasonable searches and seizures. Arrest falls under the term
"seizure. "23

This constitutional mandate is identical with the Fourth

Amendment of the Constitution of the United States. The Fourth
Amendment traces its origins to the writings of Sir Edward
Coke24 and The Great Charter of the Liberties of England (Magna
Carta Libertatum), sealed under oath by King John on the bank of
the River Thames near Windsor, England on June 15, 1215.25 The
Magna Carta Libertatum limited the King of England's powers and
required the Crown to proclaim certain liberties26 under the feudal
vassals' threat of civil war.27 The declarations in Chapter 29 of the
Magna Carta Libertatum later became the foundational component
of the Fourth Amendment of the United States Constitution.28 It
provides:

No freeman shall be taken, or imprisoned, or be disseised29 of his

Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or
any otherwise destroyed; nor will we not pass upon him, nor
condemn him, but by lawful Judgment of his Peers, or by the Law
of the Land, We will sell to no man, we will not deny or defer to any
man either Justice or Right.30 [Emphasis supplied]

In United States v. Snyder,31 the United States Supreme Court

held that this constitutional provision does not prohibit arrests,
searches and seizures without judicial warrant, but only those that
are unreasonable.32 With regard to an arrest, it is considered a
seizure, which must also satisfy the test of reasonableness.33

In our jurisdiction, early rulings of the Court have acknowledged

the validity of warrantless arrests. The Court based these rulings on
the common law of America and England that, according to the
Court, were not different from the Spanish laws.34 These court
rulings likewise justified warrantless arrests based on the
provisions of separate laws then existing in the Philippines.35

In 1905, the Court held in The United States v. Wilson36 that

Section 3737 of Act No. 183, or the Charter of Manila, defined the
arresting officer's power to arrest without a warrant, at least insofar
as the City of Manila was concerned.

In The United States v. Vallejo, et al.,38 the Court held that in the
absence of any provisions under statutes or local ordinances, a
police officer who held similar functions as those of the officers
established under the common law of England and America, also
had the power to arrest without a warrant in the Philippines.

The Court also ruled in The United States v. Santos39 that the
rules on warrantless arrest were based on common sense and
reason.40 It further held that warrantless arrest found support
under the then Administrative Code41which directed municipal
policemen to exercise vigilance in the prevention of public offenses.

In The United States v. Fortaleza,42 the Court applied Rules 27, 28,
29 and 3043 of the Provisional Law for the Application of the Penal
Code which were provisions taken from the Spanish Law.

These rules were subsequently established and incorporated in our

Rules of Court and jurisprudence. Presently, the requirements of a
warrantless arrest are now summarized in Rule 113, Section 5
which states that: Section 5. Arrest without warrant; when lawful. -
A peace officer or a private person may, without a warrant, arrest a
person:

(a) When, in his presence, the person to be arrested has committed,

is actually committing, or is attempting to commit an offense;

(b) When an offense has just been committed, and he has probable
cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped

from a penal establishment or place where he is serving final
judgment or is temporarily confined while his case is pending, or
has escaped while being transferred from one confinement to
another.

In cases falling under paragraph (a) and (b) above, the person
arrested without a warrant shall be forth with delivered to the
nearest police station or jail and shall be proceeded against in
accordance with section 7 of Rule 112.

A warrantless arrest under the circumstances contemplated under

Section 5(a) above has been denominated as one "in flagrante
delicto," while that under Section 5(b) has been described as a "hot
pursuit" arrest.44
For purposes of this case, we shall focus on Section 5(b) – the
provision applicable in the present case. This provision has
undergone changes through the years not just in its phraseology
but also in its interpretation in our jurisprudence.

We shall first trace the evolution of Section 5(b) and examine the
applicable American and Philippine jurisprudence to fully
understand its roots and its appropriate present application.

II. Evolution of Section 5(b), Rule 113

A. Prior to the 1940 Rules of Court

Prior to 1940, the Court based its rulings not just on American and
English common law principle on warrantless arrests but also on
laws then existing in the Philippines. In Fortaleza,45 the Court cited
Rule 28 of the Provisional Law for the Application of the Penal Code
which provided that:

Judicial and administrative authorities have power to detain, or to

cause to be detained, persons whom there is reasonable ground to
believe guilty of some offense. It will be the duty of the authorities,
as well as of their agents, to arrest:

First. Such persons as may be arrested under the provisions of rule

27.

Second. A person charged with a crime for which the code provides
a penalty greater than that of confinamiento.

Third. A person charged with a crime for which the code provides a
penalty less than that of confinamiento, if his antecedents or the
circumstances of the case would warrant the presumption that he
would fail to appear when summoned by the judicial authorities.

The provisions of the preceding paragraph shall not apply, however,

to a defendant who gives sufficient bond, to the satisfaction of the
authority or agent who may arrest him, and who it may reasonably
be presumed will appear whenever summoned by the judge or court
competent to try him.

Fourth. A person coining under the provisions of the preceding

paragraph may be arrested, although no formal complaint has been
filed against him, provided the following circumstances are present:

First. That the authority or agent had reasonable cause to believe

that an unlawful act, amounting to a crime had been committed.

Second. That the authority or agent had sufficient reason to believe

that the person arrested participated in the commission of such
unlawful act or crime." [Emphasis and underscoring supplied]

In the same decision, the Court likewise cited Section 3 7 of the

Charter of Manila, which provided that certain officials, including
police officers may, within the territory defined in the law, pursue
and arrest without warrant, any person found in suspicious places
or under suspicious circumstances, reasonably tending to show
that such person has committed, or is about to commit any crime
or breach of the peace.

In Santos,46 the Court cited Miles v. Weston,47 which ruled that a

peace officer may arrest persons walking in the street at night when
there is reasonable ground to suspect the commission of a crime,
although there is no proof of a felony having been committed.

The Court ruled in Santos that the arresting officer must justify
that there was a probable cause for an arrest without a warrant.
The Court defined probable cause as a reasonable ground of
suspicion, supported by circumstances sufficiently strong in
themselves as to warrant a reasonable man in believing that the
accused is guilty. Besides reasonable ground of suspicion, action in
good faith is another requirement. Once these conditions are
complied with, the peace officer is not liable even if the arrested
person turned out to be innocent.
Based on these discussions, it appears clear that prior to the 1940
Rules of Court, it was not necessary for the arresting officer to first
have knowledge that a crime was actually committed. What was
necessary was the presence of reasonably sufficient grounds to
believe the existence of an act having the characteristics of a crime;
and that the same grounds exist to believe that the person sought
to be detained participated in it. In addition, it was also established
under the old court rulings that the phrase "reasonable suspicion"
was tantamount to probable cause without which, the warrantless
arrest would be invalid and the arresting officer may be held liable
for its breach.48

In The US. v. Hachaw,49 the Court invalidated the warrantless

arrest of a Chinaman because the arresting person did not state in
what way the Chinaman was acting suspiciously or the particular
act or circumstance which aroused the arresting person's curiosity.

It appears, therefore, that prior to the establishment in our Rules of

Court of the rules on warrantless arrests, the gauge for a valid
warrantless arrest was the arresting officer's reasonable suspicion
(probable cause) that a crime was committed and the person sought
to be arrested has participated in its commission. This principle left
so much discretion and leeway on the part of the arresting officer.
However, the 1940 Rules of Court has limited this discretion.

B. The 1940 Rules of Court

(Restricting the arresting
officer's determination of
probable cause)

Rules 27 and 28 of the Provisional Law for the Application of the

Penal Code were substantially incorporated in Section 6, Rule 109
of the 1940 Rules of Court as follows:50

SEC. 6. Arrest without warrant - When lawful. - A peace officer or a

private person may, without a warrant, arrest a person:
(a) When the person to be arrested has committed, is actually
committing, or is about to commit an offense in his presence;

(b) When an offense has in fact been committed, and he has

reasonable ground to believe that the person to be arrested has
committed it;

(c) When the person to be arrested is a prisoner who has escaped

from a penal establishment or place where he is serving final
judgment or temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another.
[Emphasis and underscoring supplied]

These provisions were adopted in toto in Section 6, Rule 113 of the

1964 Rules of Court. Notably, the 1940 and 1964 Rules have
deviated from the old rulings of the Court. Prior to the 1940 Rules,
the actual commission of the offense was not necessary in
determining the validity of the warrantless arrest. Too, the arresting
officer's determination of probable cause (or reasonable suspicion)
applied both as to whether a crime has been committed and
whether the person to be arrested has committed it.

However, under the 1940 and the 1964 Rules of Court, the Rules
required that there should be actual commission of an offense,
thus, removing the element of the arresting officer's "reasonable
suspicion of the commission of an offense." Additionally, the
determination of probable cause, or reasonable suspicion, was
limited only to the determination of whether the person to be
arrested has committed the offense. In other words, the 1940 and
1964 Rules of Court restricted the arresting officer's discretion in
warrantless arrests under Section 6(b), Rule 113 of the 1964 Rules
of Court.

C. The more restrictive 1985 Rules of Criminal Procedure

Section 6, Rule 113 of the 1964 Rules of Court again underwent

substantial changes and was re-worded and re-numbered when it
became Section 5, Rule 113 of the 1985 Rules of Criminal
Procedure, to wit:

Sec. 5. Arrest without warrant; when. lawful. - A peace officer or a

private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed,

is actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be
arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped

from a penal establishment or place where he is serving final
judgment or temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person
arrested without a warrant shall be forthwith delivered to the
nearest police station or jail, and he shall be proceeded against in
accordance with Rule 112, Section 7. [Emphasis and underscoring
supplied]

As amended, Section 5(b ), Rule 113 of the 1985 Rules of Court

retained the restrictions introduced under the 1964 Rules of Court.
More importantly, however, it added a qualification that the
commission of the offense should not only have been "committed"
but should have been "just committed." This limited the arresting
officer's time frame for conducting an investigation for purposes of
gathering information indicating that the person sought to be
arrested has committed the crime.

D. The Present Revised Rules of Criminal Procedure

Section 5(b ), Rule 113 of the 1985 Rules of Criminal Procedure was
further amended with the incorporation of the word "probable
cause" as the basis of the arresting officer's determination on
whether the person to be arrested has committed the crime.

Hence, as presently worded, Section 5(b), Rule 113 of the Revised

Rules of Criminal Procedure provides that:

When an offense has just been committed, and he has probable

cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it.

From the current phraseology of the rules on warrantless arrest, it

appears that for purposes of Section S(b ), the following are the
notable changes: first, the contemplated offense was qualified by
the word "just," connoting immediacy; and second, the warrantless
arrest of a person sought to be arrested should be based on
probable cause to be determined by the arresting officer based on
his personal knowledge of facts and circumstances that the person
to be arrested has committed it.

It is clear that the present rules have "objectified" the previously

subjective determination of the arresting officer as to the (1)
commission of the crime; and (2) whether the person sought to be
arrested committed the crime. According to Feria, these changes
were adopted to minimize arrests based on mere suspicion or
hearsay.51

As presently worded, the elements under Section 5(b), Rule 113 of

the Revised Rules of Criminal Procedure are: first, an offense has
just been committed; and second, the arresting officer has probable
cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it.

For purposes of this case, we shall discuss these elements

separately below, starting with the element of probable cause,
followed by the elements that the offense has just been committed,
and the arresting officer's personal knowledge of facts or
circumstances that the person to be arrested has committed the
crime.

i) First Element of Section 5(b), Rule 113 of the Revised Rules of

Criminal Procedure: Probable cause

The existence of "probable cause" is now the "objectifier" or the

determinant on how the arresting officer shall proceed on the facts
and circumstances, within his personal knowledge, for purposes of
determining whether the person to be arrested has committed the
crime.

i.a) U.S. jurisprudence on probable cause in warrantless arrests

In Payton v. New York,52 the U.S. Supreme Court held that the
Fourth Amendment of the Federal Constitution does not prohibit
arrests without a warrant although such arrests must be
reasonable. According to State v. Quinn,53 the warrantless arrest of
a person who was discovered in the act of violating the law is not a
violation of due process.

The U.S. Supreme Court, however indicated in Henry v. United

States54 that the Fourth Amendment limited the circumstances
under which warrantless arrests may be made. The necessary
inquiry is not whether there was a warrant or whether there was
time to get one, but whether at the time of the arrest probable
cause existed. The term probable cause is synonymous to
"reasonable cause" and "reasonable grounds."55

In determining the existence of probable cause, the arresting officer

should make a thorough investigation and exercise reasonable
judgment. The standards for evaluating the factual basis supporting
a probable cause assessment are not less stringent in warrantless
arrest situation than in a case where a warrant is sought from a
judicial officer. The probable cause determination of a warrantless
arrest is based on information that the arresting officer possesses at
the time of the arrest and not on the information acquired later.56
In evaluating probable cause, probability and not certainty is the
determinant of reasonableness under the Fourth Amendment.
Probable cause involves probabilities similar to the factual and
practical questions of everyday life upon which reasonable and
prudent persons act. It is a pragmatic question to be determined in
each case in light of the particular circumstances and the particular
offense involved.57

In determining probable cause, the arresting officer may rely on all

the information in his possession, his fair inferences therefrom,
including his observations. Mere suspicion does not meet the
requirements of showing probable cause to arrest without warrant
especially if it is a mere general suspicion. Probable cause may rest
on reasonably trustworthy information as well as personal
knowledge. Thus, the arresting officer may rely on information
supplied by a witness or a victim of a crime; and under the
circumstances, the arresting officer need not verify such
information.58

In our jurisdiction, the Court has likewise defined probable cause in

the context of Section 5(b), Rule 113 of the Revised Rules of
Criminal Procedure.

In Abelita Ill v. Doria et al.,59 the Court held that personal

knowledge of facts must be based on probable cause, which means
an actual belief or reasonable grounds of suspicion. The grounds of
suspicion are reasonable when, in the absence of actual belief of the
arresting officers, the suspicion that the person to be arrested is
probably guilty of committing the offense is based on actual facts,
i.e., supported by circumstances sufficiently strong in themselves to
create the probable cause of guilt of the person to be arrested. A
reasonable suspicion, therefore, must be founded on probable
cause, coupled with good faith on the part of the peace officers
making the arrest.
i.b) Probable cause under Section 5(b), Rule 113 of the Revised
Rules of Criminal Procedure, distinguished from probable cause in
preliminary investigations and the judicial proceeding for the
issuance of a warrant of arrest

The purpose of a preliminary investigation is to determine whether

a crime has been committed and whether there is probable cause to
believe that the accused is guilty of the crime and should be held
for triat.60 In Buchanan v. Viuda de Esteban,61 we defined
probable cause as the existence of facts and circumstances as
would excite the belief in a reasonable mind, acting on the facts
within the knowledge of the prosecutor, that the person charged
was guilty of the crime for which he was prosecuted.

In this particular proceeding, the finding of the existence of

probable cause as to the guilt of the respondent was based on the
submitted documents of the complainant, the respondent and his
witnesses.62

On the other hand, probable cause in judicial proceedings for the

issuance of a warrant of arrest is defined as the existence of such
facts and circumstances that would lead a reasonably discreet and
prudent person to believe that an offense has been committed by
the person sought to be arrested.

Hence, before issuing a warrant of arrest, the judge must be

satisfied that based on the evidence submitted, there is sufficient
proof that a crime has been committed and that the person to be
arrested is probably guilty thereof. At this stage of the criminal
proceeding, the judge is not yet tasked to review in detail the
evidence submitted during the preliminary investigation. It is
sufficient that he personally evaluates the evidence in determining
probable cause63 to issue a warrant of arrest.

In contrast, the arresting officer's determination of probable cause

under Section 5(b), Rule 113 of the Revised Rules of Criminal
Procedure is based on his personal knowledge of facts or
circumstances that the person sought to be arrested has committed
the crime. These facts or circumstances pertain to actual facts or
raw evidence, i.e., supported by circumstances sufficiently strong in
themselves to create the probable cause of guilt of the person to be
arrested. A reasonable suspicion therefore must be founded on
probable cause, coupled with good faith on the part of the peace
officers making.the arrest.

The probable cause to justify warrantless arrest ordinarily signifies

a reasonable ground of suspicion supported by circumstances
sufficiently strong in themselves to warrant a cautious man to
believe that the person accused is guilty of the offense with which
he is charged,64 or an actual belief or reasonable ground of
suspicion, based on actual facts.65

It is clear therefore that the standard for determining "probable

cause" is invariable for the officer arresting without a warrant, the
public prosecutor, and the judge issuing a warrant of arrest. It is
the existence of such facts and circumstances that would lead a
reasonably discreet and prudent person to believe that an offense
has been committed by the person sought to be arrested or held for
trial, as the case may be.

However, while the arresting officer, the public prosecutor and the
judge all determine "probable cause," within the spheres of their
respective functions, its existence is influenced heavily by the
available facts and circumstance within their possession. In short,
although these officers use the same standard of a reasonable man,
they possess dissimilar quantity of facts or circumstances, as set by
the rules, upon which they must determine probable cause.

Thus, under the present rules and jurisprudence, the arresting

officer should base his determination of probable cause on his
personal knowledge of facts and circumstances that the person
sought to be arrested has committed the crime; the public
prosecutor and the judge must base their determination on the
evidence submitted by the parties.

In other words, the arresting officer operates on the basis of more

limited facts, evidence or available information that he must
personally gather within a limited time frame.

Hence, in Santos,66 the Court acknowledged the inherent

limitations of determining probable cause in warrantless arrests
due to the urgency of its determination in these instances. The
Court held that one should not expect too much of an ordinary
policeman. He is not presumed to exercise the subtle reasoning of a
judicial officer. Oftentimes, he has no opportunity to make proper
investigation but must act in haste on his own belief to prevent the
escape of the criminal.67

ii) Second and Third Elements of Section 5(b), Rule 113:

The crime has just been committed/personal
knowledge of facts or circumstances that the person
to be arrested has committed it

We deem it necessary to combine the discussions of these two

elements as our jurisprudence shows that these were usually taken
together in the Court's determination of the validity of the
warrantless arrests that were made pursuant to Section 5(b), Rule
113 of the Revised Rules of Criminal Procedure.

In Posadas v. Ombudsman,68 the killing of Dennis Venturina

happened on December 8, 1994. It was only on December 11, 1994
that Chancellor Posadas requested the NBI's assistance. On the
basis of the supposed identification of two (2) witnesses, the NBI
attempted to arrest Francis Carlo Taparan and Raymundo Narag
three (3) days after the commission of the crime. With this set of
facts, it cannot be said that the officers have personal knowledge of
facts or circumstances that the persons sought to be arrested
committed the crime. Hence, the Court invalidated the warrantless
arrest.

Similarly, in People v. Burgos,69 one Cesar Masamlok personally

and voluntarily surrendered to the authorities, stating that Ruben
Burgos forcibly recruited him to become a member of the NPA, with
a threat of physical harm. Upon receipt of this information, a joint
team of PC-INP units was dispatched to arrest Burgos who was
then plowing the field. Indeed, the arrest was invalid considering
that the only information that the police officers had in effecting the
arrest was the information from a third person. It cannot be also
said in this case that there was certainty as regards the commission
of a crime.

In People v. del Rosario,70 the Court held that the requirement that
an offense has just been committed means that there must be a
large measure of immediacy between the time the offense was
committed and the time of the arrest. If there was an appreciable
lapse of time between the arrest and the commission of the crime, a
warrant of arrest must be secured.

The Court held that the arrest of del Rosario did not comply with
these requirements because he was arrested only a day after the
commission of the crime and not immediately thereafter.
Additionally, the arresting officers were not present and were not
actual eyewitnesses to the crime. Hence, they had no personal
knowledge of facts indicating that the person to be arrested had
committed the offense. They became aware of del Rosario's identity
as the driver of the getaway tricycle only during the custodial
investigation.

In People v. Cendana,71 the accused was arrested one (1) day after
the killing of the victim and only on the basis of information
obtained from unnamed sources. The unlawful arrest was held
invalid.
In Rolito Go v. CA,72 the arrest of the accused six ( 6) days after the
commission of the crime was held invalid because the crime had
not just been committed. Moreover, the "arresting" officers had no
"personal knowledge" of facts indicating that the accused was the
gunman who had shot the victim. The information upon which the
police acted came from statements made by alleged eyewitnesses to
the shooting; one stated that the accused was the gunman; another
was able to take down the alleged gunman's car's plate number
which turned out to be registered in the name of the accused's wife.
That information did not constitute "personal knowledge."

In People v. Tonog, Jr.,73 the warrantless arrest which was done on

the same day was held valid. In this case, the arresting officer had
knowledge of facts which he personally gathered in the course of his
investigation, indicating that the accused was one of the
perpetrators.

In People v. Gerente,74 the policemen arrested Gerente only about

three (3) hours after Gerente and his companions had killed the
victim. The Court held that the policemen had personal knowledge
of the violent death of the victim and of facts indicating that
Gerente and two others had killed him. The warrantless arrest was
held valid.

In People v. Alvario,75 the warrantless arrest came immediately

after the arresting officers received information from the victim of
the crime. The Court held that the personal knowledge of the
arresting officers was derived from the information supplied by the
victim herself who pointed to Alvario as the man who raped her at
the time of his arrest. The Court upheld the warrantless arrest. In
People v. Jayson,76 there was a shooting incident. The policemen
who were summoned to the scene of the crime found the victim. The
informants pointed to the accused as the assailant only moments
after the shooting. The Court held that the arresting officers acted
on the basis of personal knowledge of the death of the victim and of
facts indicating that the accused was the assailant. Thus, the
warrantless arrest was held valid.

In People v. Acol,77 a group held up the passengers in a jeepney

and the policemen immediately responded to the report of the
crime. One of the victims saw four persons walking towards Fort
Bonifacio, one of whom was wearing his jacket. The victim pointed
them to the policemen. When the group saw the policemen coming,
they ran in different directions. The Court held that the arrest was
valid.

In Cadua v. CA,78 there was an initial report to the police

concerning a robbery. A radio dispatch was then given to the
arresting officers, who proceeded to Alden Street to verify the
authenticity of the radio message. When they reached the place,
they met with the complainants who initiated the report about the
robbery. Upon the officers' invitation, the victims joined them in
conducting a search of the nearby area where the accused was
spotted in the vicinity. Based on the reported statements of the
complainants, he was identified as a logical suspect in the offense
just committed. Hence, the arrest was held valid.

In Doria,79 the Court held that Section S(b ), Rule 113 of the 1985
Rules of Criminal Procedure does not require the arresting officers
to personally witness the commission of the offense.

In this case, P/Supt. Doria alleged that his office received a

telephone call from a relative of Rosa Sia about a shooting incident.
He dispatched a team headed by SP03 Ramirez to investigate the
incident. SP03 Ramirez later reported that a certain William Sia was
wounded while Judge Abelita III, who was implicated in the
incident, and his wife just left the place of the incident. P/Supt.
Doria looked for Abelita III and when he found him, he informed
him of the incident report. P/Supt. Doria requested Abelita III to go
with him to the police headquarters as he had been reported to be
involved in the incident. Abelita III agreed but suddenly sped up his
vehicle and proceeded to his residence where P/Supt. Doria caught
him up as he was about to run towards his house.

The police officers saw a gun in the front seat of the vehicle beside
the driver's seat as Abelita III opened the door. They also saw a
shotgun at the back of the driver's seat. The police officers
confiscated the firearms and arrested Abelita III. The Court held
that the petitioner's act of trying to get away, coupled with the
incident report which they investigated, were enough to raise a
reasonable suspicion on the part of the police authorities as to the
existence of probable cause. Based on these discussions, it appears
that the Court's appreciation of the elements that "the offense has
just been committed" and ''personal knowledge of facts and
circumstances that the person to be arrested committed it"
depended on the particular circumstances of the case. However, we
note that the element of ''personal knowledge of facts or
circumstances" under Section S(b ), Rule 113 of the Revised Rules
of Criminal Procedure requires clarification.

The phrase covers facts or, in the alternative, circumstances.

According to the Black's Law Dictionary,80"circumstances are
attendant or accompanying facts, events or conditions. "
Circumstances may pertain to events or actions within the actual
perception, personal evaluation or observation of the police officer
at the scene of the crime. Thus, even though the police officer has
not seen someone actually fleeing, he could still make a warrantless
arrest if, based on his personal evaluation of the circumstances at
the scene of the crime, he could determine the existence of probable
cause that the person sought to be arrested has committed the
crime. However, the determination of probable cause and the
gathering of facts or circumstances should be made immediately
after the commission of the crime in order to comply with the
element of immediacy.
In other words, the clincher in the element of ''personal knowledge
of facts or circumstances" is the required element of immediacy
within which these facts or circumstances should be gathered. This
required time element acts as a safeguard to ensure that the police
officers have gathered the facts or perceived the circumstances
within a very limited time frame. This guarantees that the police
officers would have no time to base their probable cause finding on
facts or circumstances obtained after an exhaustive investigation.

The reason for the element of the immediacy is this - as the time
gap from the commission of the crime to the arrest widens, the
pieces of information gathered are prone to become contaminated
and subjected to external factors, interpretations and hearsay. On
the other hand, with the element of immediacy imposed under
Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure,
the police officer's determination of probable cause would
necessarily be limited to raw or uncontaminated facts or
circumstances, gathered as they were within a very limited period of
time. The same provision adds another safeguard with the
requirement of probable cause as the standard for evaluating these
facts of circumstances before the police officer could effect a valid
warrantless arrest.

In light of the discussion above on the developments of Section 5(b),

Rule 113 of the Revised Rules of Criminal Procedure and our
jurisprudence on the matter, we hold that the following must be
present for a valid warrantless arrest: 1) the crime should have
been just committed; and 2) the arresting officer's exercise of
discretion is limited by the standard of probable cause to be
determined from the facts and circumstances within his personal
knowledge. The requirement of the existence of probable cause
objectifies the reasonableness of the warrantless arrest for purposes
of compliance with the Constitutional mandate against
unreasonable arrests.
Hence, for purposes of resolving the issue on the validity of the
warrantless arrest of the present petitioners, the question to be
resolved is whether the requirements for a valid warrantless arrest
under Section 5(b), Rule 113 of the Revised Rules of Criminal
Procedure were complied with, namely: 1) has the crime just been
committed when they were arrested? 2) did the arresting officer
have personal knowledge of facts and circumstances that the
petitioners committed the crime? and 3) based on these facts and
circumstances that the arresting officer possessed at the time of the
petitioners' arrest, would a reasonably discreet and prudent person
believe that the attempted murder of Atty. Generoso was committed
by the petitioners? We rule in the affirmative.

III. Application of Section S(b), Rule 113 of the Revised Rules

of Criminal Procedure in the present case: there was a
valid warrantless arrest

We deem it necessary to review the records of the CA because it has

misapprehended the facts in its decision.81From a review of the
records, we conclude that the police officers had personal
knowledge of facts or circumstances upon which they had properly
determined probable cause in effecting a warrantless arrest against
the petitioners. We note, however, that the determination of the
facts in the present case is purely limited to the resolution of the
issue on the validity of the warrantless arrests of the petitioners.

Based on the police blotter82 entry taken at 4:15 a.m. on February

20, 2005, the date that the alleged crime was committed, the
petitioners were brought in for investigation at the Batasan Hills
Police Station. The police blotter stated that the alleged crime was
committed at 3:15 a.m. on February 20, 2005, along Kasiyahan St.,
Brgy. Holy Spirit, Quezon City.

The time of the entry of the complaint in the police blotter at 4:15
a.m., with Atty. Generoso and the petitioners already inside the
police station, would connote that the arrest took place less than
one hour from the time of the occurrence of the crime. Hence, the
CA finding that the arrest took place two (2) hours after the
commission of the crime is unfounded.

The arresting officers' personal observation of Atty. Generoso's

bruises when they arrived at the scene of the crime is corroborated
by the petitioners' admissions that Atty: Generoso indeed suffered
blows from petitioner Macapanas and his brother Joseph
Macapanas,83 although they asserted that they did it in self-
defense against Atty. Generoso.

Atty. Generoso's bruises were also corroborated by the Medico-Legal

Certificate84 that was issued by East Avenue Medical Center on the
same date of the alleged mauling. The medical check-up of Atty.
Generoso that was made about 8:10 a.m. on the date of the
incident, showed the following findings: "Contusion Hematoma, Left
Frontal Area; Abrasion, T6 area, right midclavicular line periorbital
hematoma, left eye; Abrasion, distal 3rd posterolateral aspect of
right forearm; Abrasion, 4th and fifth digit, right hand; Abrasion on
area of ih rib (L ant. Chest wall), tenderness on L peripheral area,
no visible abrasion. In addition, the attending physician, Dr. Eva P.
Javier, diagnosed Atty. Generoso of contusion hematoma,
periorbital L., and traumatic conjunctivitis, o.s.

To summarize, the arresting officers went to the scene of the crime

upon the complaint of Atty. Generoso of his alleged mauling; the
police officers responded to the scene of the crime less than one (1)
hour after the alleged mauling; the alleged crime transpired in a
community where Atty. Generoso and the petitioners reside; Atty.
Generoso positively identified the petitioners as those responsible
for his mauling and, notably, the petitioners85and Atty.
Generoso86 lived almost in the same neighborhood; more
importantly, when the petitioners were confronted by the arresting
officers, they did not deny their participation in the incident with
Atty. Generoso, although they narrated a different version of what
transpired.87

With these facts and circumstances that the police officers gathered
and which they have personally observed less than one hour from
the time that they have arrived at the scene of the crime until the
time of the arrest of the petitioners, we deem it reasonable to
conclude that the police officers had personal knowledge of facts or
circumstances justifying the petitioners' warrantless arrests. These
circumstances were well within the police officers' observation,
perception and evaluation at the time of the arrest. These
circumstances qualify as the police officers' personal observation,
which are within their personal knowledge, prompting them to
make the warrantless arrests.

Similar to the factual antecedents in Jayson,88 the police officers in

the present case saw Atty. Generoso in his sorry bloodied state. As
the victim, he positively identified the petitioners as the persons
who mauled him; however, instead of fleeing like what happened in
Jayson, the petitioners agreed to go with the police officers.

This is also similar to what happened in People v. Tonog,

Jr.89 where Tonog did not flee but voluntarily went with the police
officers. More than this, the petitioners in the present case even
admitted to have been involved in the incident with Atty. Generoso,
although they had another version of what transpired.

In determining the reasonableness of the warrantless arrests, it is

incumbent upon the courts to consider if the police officers have
complied with the requirements set under Section 5(b), Rule 113 of
the Revised Rules of Criminal Procedure, specifically, the
requirement of immediacy; the police officer's personal knowledge of
facts or circumstances; and lastly, the propriety of the
determination of probable cause that the person sought to be
arrested committed the crime.
The records show that soon after the report of the incident
occurred, SPOl Monsalve immediately dispatched the arresting
officer, SP02 Javier, to render personal assistance to the
victim.90 This fact alone negates the petitioners' argument that the
police officers did not have personal knowledge that a crime had
been committed - the police immediately responded and had
personal knowledge that a crime had been committed.1âwphi1

To reiterate, personal knowledge of a crime just committed under

the terms of the above-cited provision, does not require actual
presence at the scene while a crime was being committed; it is
enough that evidence of the recent commission of the crime is
patent (as in this case) and the police officer has probable cause to
believe based on personal knowledge of facts or circumstances, that
the person to be arrested has recently committed the crime.

Considering the circumstances of the stabbing, particularly the

locality where it took place, its occasion, the personal
circumstances of the parties, and the immediate on-the-spot
investigation that took place, the immediate and warrantless arrests
of the perpetrators were proper. Consequently, the inquest
proceeding that the City Prosecutor conducted was appropriate
under the circumstances.

IV. The term "invited" in the Affidavit of Arrest is construed to

mean as an authoritative command

After the resolution of the validity of the warrantless arrest, the

discussion of the petitioners' second issue is largely academic.
Arrest is defined as the taking of a person into custody in order that
he may be bound to answer for the commission of an offense. An
arrest is made by an actual restraint of the person to be arrested, or
by his submission to the custody of the person making the
arrest.91 Thus, application of actual force, manual touching of the
body, physical restraint or a formal declaration of arrest is not
required. It is enough that there be an intention on the part of one
of the parties to arrest the other and the intent of the other to
submit, under the belief and impression that submission is
necessary.92

Notwithstanding the term "invited" in the Affidavit of Arrest,93 SP02

Javier could not but have the intention of arresting the petitioners
following Atty. Generoso' s account. SP02 Javier did not need to
apply violent physical restraint when a simple directive to the
petitioners to follow him to the police station would produce a
similar effect. In other words, the application of actual force would
only be an alternative if the petitioners had exhibited resistance.

To be sure, after a crime had just been committed and the

attending policemen have acquired personal knowledge of the
incidents of the crime, including the alleged perpetrators, the arrest
of the petitioners as the perpetrators pointed to by the victim, was
not a mere random act but was in connection with a particular
offense. Furthermore, SP02 Javier had informed the petitioners, at
the time of their arrest, of the charges against them before taking
them to Batasan Hills Police Station for investigation.94

V. The Order denying the motion for preliminary

investigation is valid

In their last ditch attempt at avoidance, the petitioners attack the R

TC Order denying the petitioners' urgent motion for regular
preliminary investigation for allegedly having been issued in
violation of Article VIII, Section 14 of the 1987 Constitution95 and
Rule 16, Section 3 of the Revised Rules of Court.96

The RTC, in its Order dismissing the motion, clearly states that the
Court is not persuaded by the evidentiary nature of the allegations
in the said motion of the accused. Aside from lack of clear and
convincing proof, the Court, in the exercise of its sound discretion
on the matter, is legally bound to pursue and hereby gives
preference to the speedy disposition of the case."
We do not see any taint of impropriety or grave abuse of discretion
in this Order. The RTC, in resolving the motion, is not required to
state all the facts found in the record of the case. Detailed
evidentiary matters, as the RTC decreed, is best reserved for the
full-blown trial of the case, not in the preliminary incidents leading
up to the trial.

Additionally, no less than the Constitution itself provides that it is

the decision that should state clearly and distinctly the facts and
the law on which it is based. In resolving a motion, the court is only
required to state clearly and distinctly the reasons therefor. A
contrary system would only prolong the proceedings, which was
precisely what happened to this case. Hence, we uphold the validity
of the RTC's order as it correctly stated the reason for its denial of
the petitioners' Urgent Motion for Regular Preliminary Investigation.
WHEREFORE, premises considered, we hereby DENY the petition,
and hereby AFFIRM the decision dated January 21, 2008 and the
resolution dated April 17, 2008 of the Court of Appeals in CA-G.R.
SP No. 91541. The City Prosecutor of Quezon City is hereby
ORDERED to proceed with the criminal proceedings against the
petitioners.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 191532 August 15, 2012

MARGARITA AMBRE Y CAYUNI, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES Respondent.

PEREZ,*

REYES,**

DECISION

MENDOZA, J.:

This is a petition for review on certiorari seeking to reverse and set

aside the November 26, 2009 Decision 1 and the March 9, 2010
Resolution2 of the Court of Appeals (CA) in CA-G.R. CR No. 31957,
which affirmed the September 1, 2008 Decision3 of the Regional
Trial Court, Branch 123, Caloocan City, (RTC) in Criminal Case No
.. C-73029, finding petitioner Margarita Ambre y
Cayuni (Ambre) guilty beyond reasonable doubt of the crime of
violation of Section 15, Article II of Republic Act (R.A.) No. 9165.

THE FACTS

Two separate Informations were filed against Ambre, and co-

accused, Bernie Castro (Castro) and Kaycee Mendoza (Mendoza),
before the RTC charging them with illegal possession of drug
paraphernalia docketed as Criminal Case No. C-73028, and illegal
use of methylamphetamine hydrochloride, otherwise known as
shabu, docketed as Criminal Case No. C-73029. The Informations
indicting the accused read:

Criminal Case No. C-73028

That on or about 20th day of April 2005 in Caloocan City, Metro
Manila and within the jurisdiction of this Honorable Court, the
above-named accused, without being authorized by law, did then
and there willfully, unlawfully and feloniously have in his
possession, custody and control one (1) unsealed transparent
plastic sachet containing traces of white crystalline substance,
(METHYLAMPHETAMINE HYDROCHLORIDE), one (1) rolled
aluminum foil strip containing traces of white crystalline substance,
(METHYLAMPHETAMINE HYDROCHLORIDE), one (1) folded
aluminum foil strip containing traces of white crystalline substance,
(METHYLAMPHETAMINE HYDROCHLORIDE) and two (2)
disposable plastic lighters, knowing the same are paraphernalias
instruments apparatus fit or intended for smoking, consuming,
administering, ingesting or introducing dangerous drug
(METHYLAMPHETAMINE HYDROCHLORIDE) into the body.

Contrary to law.4

Criminal Case No. C-73029

That on or about the 20th of April 2005 in Caloocan City, Metro

Manila and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring together and mutually helping
with one another, without being authorized by law, did then and
there willfully, unlawfully and feloniously use and sniff
Methylamphetamine Hydrochloride (Shabu), knowing the same to
be a dangerous drug under the provisions of the above-cited law.

Contrary to law.5

When arraigned, Castro and Mendoza pleaded guilty to both

charges. Consequently, they were meted the penalty of
imprisonment of six (6) months and one (1) day to one (1) year and
eight (8) months and a fine of P25,000.00 in Criminal Case No. C-
73028. For their conviction in Criminal Case No. C-73029, the RTC
ordered their confinement at the Center for the Ultimate
Rehabilitation of Drug Dependents (CUREDD) for a period of six (6)
months.6
Ambre, on the other hand, entered a plea of not guilty to the
charges.7 Trial on the merits ensued.

The Version of the Prosecution

From the testimonies of prosecution witnesses PO3 Fernando

Moran (PO3 Moran), PO1 Ronald Allan Mateo (PO1 Mateo), PO2
Randulfo Hipolito (PO2 Hipolito), and P/Insp. Jessie dela Rosa
(P/Insp. dela Rosa), it appeared that on April 20, 2005, the
Caloocan Police Station Anti-Illegal Drug-Special Operation Unit
conducted a buy-bust operation pursuant to a tip from a police
informant that a certain Abdulah Sultan (Sultan) and his wife Ina
Aderp(Aderp) were engaged in the selling of dangerous drugs at a
residential compound in Caloocan City; that the buy-bust operation
resulted in the arrest of Aderp and a certain Moctar
Tagoranao (Tagoranao); that Sultan ran away from the scene of the
entrapment operation and PO3 Moran, PO2 Masi and PO1 Mateo,
pursued him; that in the course of the chase, Sultan led the said
police officers to his house; that inside the house, the police
operatives found Ambre, Castro and Mendoza having a pot session;
that Ambre, in particular, was caught sniffing what was suspected
to be shabu in a rolled up aluminum foil; and that PO3 Moran ran
after Sultan while PO2 Masi and PO1 Mateo arrested Ambre, Castro
and Mendoza for illegal use of shabu.

The items confiscated from the three were marked and, thereafter,
submitted for laboratory examination. Physical Science Report No.
DT-041-05 to DT-043-05 stated that the urine samples taken from
Ambre and her coaccused were positive for the presence of shabu
while Physical Science Report No. D-149-05 showed that the items
seized from them were all found positive for traces of shabu.8

The Version of the Defense

Ambre vehemently denied the charges against her. Through the

testimonies of Ambre, Mendoza and Lily Rosete(Rosete), the defense
claimed that on the afternoon of April 20, 2005, Ambre was inside
the residential compound in Caloocan to buy malong; that her
mother asked Rosete to accompany her because Rosete’s daughter-
in-law, Nancy Buban (Buban), was a resident of Phase 12, Caloocan
City, an area inhabited by Muslims; that when they failed to buy
malong, Rosete and Buban left her inside the residential compound
to look for other vendors; that ten minutes later, the policemen
barged inside the compound and arrested her; that she was
detained at the Caloocan City Jail where she met Castro, Mendoza
and Tagoranao; and that she was not brought to the Philippine
National Police (PNP) Crime Laboratory for drug testing.

Rosete further testified that after she had left Ambre inside the
compound to find other malong vendors, she returned fifteen
minutes later and learned that the policemen had arrested people
inside the compound including Ambre.

Mendoza, who was convicted in Criminal Case No. C-73029,

claimed that no pot session took place on the afternoon of April 20,
2005. She averred that she and Ambre were merely inside the
residential compound, when policemen suddenly came in and
pointed guns at them.9

The Ruling of the Regional Trial Court

On September 1, 2008, the RTC rendered its decision declaring that

the prosecution was able to establish with certitude the guilt of
Ambre for illegal use of methylamphetamine hydrochloride or
violation of Section 15, Article II of R.A. No. 9165. The RTC,
however, acquitted her of the crime of violation of Section 12, Article
II of R.A. No. 9165 for failure of the prosecution to prove with
particularity the drug paraphernalia found in her possession. The
trial court adjudged:

WHEREFORE, premises considered, judgment is hereby rendered

as follows:

1) In Crim. Case No. C- 73028, finding accused MARGARITA

AMBRE Y CAYUNI not guilty of the crime of Violation of Section 12,
Article II, RA 9165;

2)In Crim. Case No. C-73029, finding accused MARGARITA AMBRE

Y CAYUNI guilty beyond reasonable doubt of the crime of Violation
of Sec. 15, Art. II RA 9165 and hereby sentences her to be confined
and rehabilitated at the government rehabilitation center in
Bicutan, Taguig, Metro Manila for a period of six (6) months. The six
(6) month period of rehabilitation shall commence only from the
time that she is brought inside the rehabilitation center and its
promulgation by this court for which the accused shall be notified.

The shabu subject of these cases is hereby confiscated in favor of

the government to be disposed of in accordance with the rules
governing the same.

Costs against the accused.

SO ORDERED.10

The Decision of the Court of Appeals

Undaunted, Ambre appealed the judgment of conviction before the

CA professing her innocence of the crime. On November 26, 2009,
the CA rendered the assailed decision, the dispositive portion of
which reads:

WHEREFORE, premises considered, the appeal is hereby DENIED.

The Decision dated September 1, 2008 of the Regional Trial Court,
Branch 123, Caloocan City is AFFIRMED.

SO ORDERED.11

Ambre's motion for reconsideration was denied by the CA in its

March 9, 2010 Resolution. Hence, she filed this petition

THE ISSUES

Ambre raised the following issues:

1. WHETHER OR NOT THE ARREST OF AND THE SEARCH DONE

AGAINST THE PETITIONER ON APRIL 20, 2005 (THAT YIELDED
ALLEGED DRUG PARAPHERNALIA) CONFORMED WITH THE
MANDATED LEGAL PROCEDURES IN CONDUCTING A BUY-BUST
OPERATION.
2. WHETHER OR NOT THE ARREST OF AND THE SEARCH DONE
AGAINST THE PETITIONER WERE PART AND PARCEL OF THE
DISMISSED AND DISCREDITED BUY-BUST OPERATIONS OF THE
POLICE AND/OR "FRUITS OF THE POISONOUS TREE" AND
HENCE, WERE ILLEGAL.

3. WHETHER OR NOT THE PROSECUTION'S EVIDENCE THAT

WERE SEIZED DURING THE ILLEGAL BUY-BUST OPERATION ARE
ADMISSIBLE AS EVIDENCE.

4. WHETHER OR NOT THE EXCLUSION OR DISREGARD OF THE

FAVORABLE TESTIMONY OF PETITIONER'S WITNESS, HER CO-
ACCUSED, KAYCEE MENDOZA, ON THE GROUND THAT THE
LATTER EARLIER PLED GUILTY TO SUCH ILLEGAL USE, HAD
VIOLATED THE RULE ON INTER ALIOS ACTA UNDER SECTION
26, RULE 130 OF THE RULES OF COURT.

5. WHETHER OR NOT THE PETITIONER'S PENALTY OF SIX (6)

MONTHS REHABILITATION IN A GOVERNMENT CENTER IS A
NULLITY GIVEN THE LACK OF CONFIRMATORY TEST AS
REQUIRED UNDER R.A. 9165 ("COMPREHENSIVE DANGEROUS
DRUGS ACT OF 2002").12

A perusal of the pleadings filed by the parties leads the Court to

conclude that the case revolves on the following core issues:

1.) Whether the warrantless arrest of Ambre and the search of

her person was valid; and

2.) Whether the items seized are inadmissible in evidence.

Essentially, Ambre insists that the warrantless arrest and search

made against her were illegal because no offense was being
committed at the time and the police operatives were not authorized
by a judicial order to enter the dwelling of Sultan. She argues that
the alleged "hot pursuit" on Sultan which ended in the latter's
house, where she, Mendoza and Castro were supposedly found
having a pot session, was more imaginary than real. In this regard,
Ambre cites the April 29, 2005 Resolution of the Prosecutor's Office
of Caloocan City dismissing the case against Aderp and Sultan for
insufficiency of evidence because the April 20, 2005 buy-bust
operation was highly suspicious and doubtful. She posits that the
items allegedly seized from her were inadmissible in evidence being
fruits of a poisonous tree. She claims that the omission of the
apprehending team to observe the procedure outlined in R.A. No.
9165 for the seizure of evidence in drugs cases significantly impairs
the prosecution’s case. Lastly, Ambre maintains that she was not
subjected to a confirmatory test and, hence, the imposition of the
penalty of six months rehabilitation was not justified.

For the State, the Office of the Solicitor General (OSG) urges this
Court to affirm the challenged decision for failure of Ambre to show
that the RTC committed any error in convicting her of illegal use of
shabu. The OSG insists that Ambre was lawfully arrested in
accordance with Section 5, Rule 113 of the Rules of Court. It is of
the opinion that the credible and compelling evidence of the
prosecution could not be displaced by the empty denial offered by
Ambre.

THE COURT'S RULING

The conviction of Ambre stands.

Section 2, Article III13 of the Constitution mandates that a search

and seizure must be carried out through or on the strength of a
judicial warrant predicated upon the existence of probable cause,
absent which such search and seizure becomes "unreasonable"
within the meaning of said constitutional provision. Evidence
obtained and confiscated on the occasion of such an unreasonable
search and seizure is tainted and should be excluded for being the
proverbial fruit of a poisonous tree. In the language of the
fundamental law, it shall be inadmissible in evidence for any
purpose in any proceeding.14

This exclusionary rule is not, however, an absolute and rigid

proscription. One of the recognized exception established by
jurisprudence is search incident to a lawful arrest.15 In this
exception, the law requires that a lawful arrest must precede the
search of a person and his belongings. As a rule, an arrest is
considered legitimate if effected with a valid warrant of arrest.
Section 5, Rule 113 of the Rules of Criminal Procedure, however,
recognizes permissible warrantless arrests:

"Sec. 5. Arrest without warrant; when lawful. - A peace officer or a

private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed,

is actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be
arrested has committed it; and

(c) When the person to be arrested is a prisoner who escaped from a

penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped
while being transferred from one confinement to another.
(Emphasis supplied)

Section 5, above, provides three (3) instances when warrantless

arrest may be lawfully effected: (a) arrest of a suspect in flagrante
delicto; (b) arrest of a suspect where, based on personal knowledge
of the arresting officer, there is probable cause that said suspect
was the perpetrator of a crime which had just been committed; (c)
arrest of a prisoner who has escaped from custody serving final
judgment or temporarily confined during the pendency of his case
or has escaped while being transferred from one confinement to
another.

In arrest in flagrante delicto, the accused is apprehended at the

very moment he is committing or attempting to commit or has just
committed an offense in the presence of the arresting officer.
Clearly, to constitute a valid in flagrante delicto arrest, two
requisites must concur: (1) the person to be arrested must execute
an overt act indicating that he has just committed, is actually
committing, or is attempting to commit a crime; and (2) such overt
act is done in the presence or within the view of the arresting
officer.16
In the case at bench, there is no gainsaying that Ambre was caught
by the police officers in the act of using shabu and, thus, can be
lawfully arrested without a warrant. PO1 Mateo positively identified
Ambre sniffing suspected shabu from an aluminum foil being held
by Castro.17 Ambre, however, made much of the fact that there was
no prior valid intrusion in the residence of Sultan. The argument is
specious.

Suffice it to state that prior justification for intrusion or prior lawful

intrusion is not an element of an arrest in flagrante delicto. Thus,
even granting arguendo that the apprehending officers had no legal
right to be present in the dwelling of Sultan, it would not render
unlawful the arrest of Ambre, who was seen sniffing shabu with
Castro and Mendoza in a pot session by the police officers.
Accordingly, PO2 Masi and PO1 Mateo were not only authorized but
were also duty-bound to arrest Ambre together with Castro and
Mendoza for illegal use of methamphetamine hydrochloride in
violation of Section 15, Article II of R.A. No. 9165.

To write finis to the issue of validity and irregularity in her

warrantless arrest, the Court holds that Ambre is deemed to have
waived her objections to her arrest for not raising them before
entering her plea.18

Considering that the warrantless arrest of Ambre was valid, the

subsequent search and seizure done on her person was likewise
lawful. After all, a legitimate warrantless arrest necessarily cloaks
the arresting police officer with authority to validly search and seize
from the offender (1) dangerous weapons, and (2) those that may be
used as proof of the commission of an offense.19

Further, the physical evidence corroborates the testimonies of the

prosecution witnesses that Ambre, together with Castro and
Mendoza, were illegally using shabu. The urine samples taken from
them were found positive for the presence of shabu, as indicated in
Physical Science Report No. DT-041-05 to DT-043-05. It was
likewise found that the items seized from the three were all positive
for traces of shabu as contained in Physical Science Report No. D-
149-05 dated April 21, 2005. These findings were unrebutted.
Ambre's assertion that her conviction was incorrect, because the
evidence against her was obtained in violation of the procedure laid
down in R.A. No. 9165, is untenable.

While ideally the procedure on the chain of custody should be

perfect and unbroken, in reality, it is not as it is almost always
impossible to obtain an unbroken chain.20 This Court, however,
has consistently held that the most important factor is the
preservation of the integrity and evidentiary value of the seized
items.21 In this case, the prosecution was able to demonstrate that
the integrity and evidentiary value of the confiscated drug
paraphernalia had not been compromised. Hence, even though the
prosecution failed to submit in evidence the physical inventory and
photograph of the drug paraphernalia with traces of shabu, this will
not render Ambre's arrest illegal or the items seized from her
inadmissible.

Records bear out that after the arrest of Ambre with Castro and
Mendoza, the following items were confiscated from them: one (1)
unsealed sachet with traces of suspected shabu; one (1) strip of
rolled up aluminum foil with traces of suspected shabu; one (1)
folded piece of aluminum foil with traces of white crystalline
substance also believed to be shabu; and two (2) yellow disposable
lighters. Upon arrival at the police station, PO3 Moran turned over
the seized items to PO2 Hipolito who immediately marked them in
the presence of the former. All the pieces of evidence were placed
inside an improvised envelope marked as "SAID-SOU EVIDENCE
04-20-05." With the Request for Laboratory Examination, PO2
Hipolito brought the confiscated items to the PNP Crime Laboratory
and delivered them to P/Insp. dela Rosa, a forensic chemist, who
found all the items, except the disposable lighters, positive for
traces of shabu. Verily, the prosecution had adduced ample
evidence to account for the crucial links in the chain of custody of
the seized items.

Even if the Court strikes down the seized drug paraphernalia with
traces of shabu as inadmissible, Ambre will not be exculpated from
criminal liability. First, let it be underscored that proof of the
existence and possession by the accused of drug paraphernalia is
not a condition sine qua non for conviction of illegal use of
dangerous drugs. The law merely considers possession of drug
paraphernalia as prima facie evidence that the possessor has
smoked, ingested or used a dangerous drug and creates a
presumption that he has violated Section 15 of R.A. No. 9165.22

Secondly, the testimonies of the police officers have adequately

established with moral certainty the commission of the crime
charged in the information and the identity of Ambre as the
perpetrator. At this juncture, the Court affirms the RTC's finding
that the police officers' testimonies deserve full faith and credit.
Appellate courts, generally, will not disturb the trial court's
assessment of a witness' credibility unless certain material facts
and circumstances have been overlooked or arbitrarily
disregarded.23 The Court finds no reason to deviate from this rule
in this case.

Likewise, the Court upholds the presumption of regularity in the

performance of official duties. The presumption remains because
the defense failed to present clear and convincing evidence that the
police officers did not properly perform their duty or that they were
inspired by an improper motive. The presumption was not overcome
as there was no showing that PO3 Moran, PO1 Mateo, PO2 Hipolito,
and P/Insp. dela Rosa were impelled with improper motive to falsely
impute such offense against Ambre.

As against the positive testimonies of the prosecution witnesses, the

defense of denial offered by Ambre must simply fail. Bare denials
cannot prevail over positive identification made by the prosecution
witnesses.24 Besides, this Court has held in a catena of cases that
the defense of denial or frame-up has been viewed with disfavor for
it can just as easily be concocted and is a common and standard
ploy in most prosecutions for violation of the Dangerous Drugs
Act.25

Finally, Ambre contends that the penalty of six months of

rehabilitation in a government center imposed on her was a nullity,
in view of the alleged lack of confirmatory test. The Court is not
persuaded.
It must be emphasized that in no instance did Ambre challenge, at
the RTC, the supposed absence of confirmatory drug test conducted
on her. Ambre only questioned the alleged omission when she
appealed he·r conviction before the CA. It was too late in the day for
her to do so. Wellentrenched is the rule that litigants cannot raise
an issue for the first time on appeal as this would contravene the
basic rules of fair play and justice.26

WHEREFORE, the petition is DENIED. The assailed November 26,

2009 Decision and the March 9, 2010 Resolution of the Court of
Appeals in CA-G.R. CR No. 31957 are hereby AFFIRMED.

SO ORDERED.

Doctrine:

A hearing on an application for bail is mandatory. In case an application for

bail is filed, the judge is entrusted to observe the following duties:

1. In all cases, whether bail is a matter of right or discretion, notify the

prosecutor of the hearing of the application for bail or require him to
submit his recommendation;
2. Where bail is a matter of discretion, conduct a hearing of the application
for bail regardless of whether or not the prosecution refuses to present
evidence to show that the guilt of the accused is strong for the purpose of
enabling the court to exercise its sound discretion;
3. Decide whether the guilt of the accused is strong based on the summary
of evidence of the prosecution; and
4. If the guilt of the accused is not strong, discharge the accused upon the
approval of the bail bond. Otherwise the bail should be denied.

ER:

 This case involves 2 admin complaints against Judge Perello by Supt.

Mabutas and City Prosec. Togononon regarding the Judge’s gross
ignorance of the law in granting bail in dangerous drugs cases. In Admin
Case 1, Mabutas complains about the granting of bail to accused
Omadan who was charged with possession of 57.78 grams of shabu, with
no bail recommended. However, Judge Perello, in her order, stated that
 the evidence of guilt was not strong for her to deny bail. Additionally,
there may have been lapses in carrying out the arrest and preliminary
investigation of Omadan (no witness during search of Omadan’s house;
no witness who has personal knowledge of Omadan’s illegal activities).
Thus, Judge Perello allowed bail in the amount of P1M. In Admin Case
2, the Prosecutor likewise complains of Judge Perello’s granting of bail to
4 drug cases. These were done without hearing. Judge Perello reasons
out that since the shabu is not a dangerous drug but merely a controlled
precursor (according to her reading of the Dangerous Drugs Act) and that
the amounts of shabu involved in the cases were mostly less than 1
gram, these were not punishable by a capital offense and thus bail
should be a matter of right without need for a hearing.
 Issue: Whether the judge can be administratively liable for the granting
of bail in the drug cases? No for Admin case 1 but yes for Admin case 2.
 Admin case 1 is dismissed as the SC found that Judge Perello complied
with her duty. The Dangerous Drugs Act punishes possession of 50
grams or more of shabu with life imprisonment to death, hence a capital
offense. As such, bail is a matter of discretion pursuant to Rule 114, sec.
7, which states that, “No person charged with the capital offense, or an
offense punishable by reclusion perpetua or life imprisonment, shall be
admitted to bail when the evidence of guilt is strong, regardless of the
stage of the criminal prosecution.”
 A hearing on an application for bail is mandatory. In case an application
for bail is filed, the judge is entrusted to observe the following duties:
o In all cases, notify the prosecutor of the hearing of the application
for bail or require him to submit his recommendation;
o Where bail is a matter of discretion, conduct a hearing regardless
of whether or not the prosecution refuses to present evidence
o Decide whether the guilt of the accused is strong based on the
summary of evidence of the prosecution; and
o If the guilt of the accused is not strong, discharge the accused
upon the approval of the bail bond. Otherwise the bail should be
denied.
 In this case, Judge Perello complied with the foregoing duties. A hearing
was held on the petition; the prosecution was given the opportunity to
present its evidence in support of its stance; Judge based her findings on
the prosecution’s evidence; Judge’s Order granting the accused’s petition
for bail contained a summary of the prosecution’s evidence; and since it
was her conclusion that the evidence of accused Omadan’s guilt is not
strong, the petition for bail was granted.
 For Admin case 2, the SC found Judge Perello for failing to understand
that shabu is a dangerous drug and not merely a controlled precursor as
she ardently submits. The Dangerous Drugs Act is clear that shabu is a
dangerous drug as it is listed among those drugs considered as
dangerous. If only she kept abreast with jurisprudence holding that
 shabu is a dangerous drug, she would not have committed such mistake.
For such mistake, she is found guilty of gross ignorance of the law and is
suspended for 6 months.
(Long case, focus on the ratio on Admin Case 1 because the doctrines re: bail
are there.)