People vs Bacungay : 125017 : March 12, 2002 : Per Curiam : En Banc

EN BANC

[G.R. No. 125017. March 12, 2002]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GERARDO BACUNGAY Y CAINDOY, ERIC RICAFRANCO Y MALABANA, CRIS IGLESIA Y OGNALA and RENATO MENDEZ Y DE LEON, accused-appellants.

D E C I S I O N

PER CURIAM:

We view with grave concern the proliferation across the country of criminal syndicates and even loose aggroupments fueling an alarming and unprecedented wave of kidnappings in recent years. Preying mostly on affluent members of the Filipino-Chinese community, and even on foreign tourists, they rake in millions of pesos in ransom, virtually transforming kidnapping into a lucrative industry in this part of the world. Despite the determined and intensified efforts of various law enforcement agencies to dismantle and neutralize these outlaws, their illegal activities continue unabated. By any conceivable legal measure, kidnapping for ransom must be contained and its perpetrators dealt with with the full force of the law, not only because by its nature it is despicable, but more importantly, for reasons of maintaining public order, safety and security, so crucial to the social and economic progress of the country. Yet, the enormous burden of repressing this plague is not exclusive to the police and military arms of the State. It requires likewise a coordinated participation of the courts and an uncompromising cooperation of the elements of civil society.

The Decision of the Regional Trial Court of Makati City in Crim. Cases Nos. 95-786, 95-787 and 95-788 finding accused-appellants GERARDO BACUNGAY, ERIC RICAFRANCO, CRIS IGLESIA and RENATO MENDEZ guilty of three (3) counts of kidnapping for ransom and imposing upon them the penalty of death for each count[1] is before us on automatic review.

The inculpatory evidence against the four (4) accused-appellants shows that at around 8:00 o’clock in the evening of 12 March 1995 Ivonne Keh[2] was driving her car along Galaxy Street, Bel-Air Subdivision, Makati City, with her mother Chinya Hwang who was seated beside her and uncle Alberto Drit Chua who was at the back seat. All of a sudden a red car overtook them and blocked their path, forcing Ivonne Keh to stop. Three (3) armed men – two (2) of whom were later identified as accused-appellants Gerardo Bacungay and Eric Ricafranco, while the third remained unknown -alighted from the red car and started banging the windows of the car of Ivonne Keh, ordering her to unlock the doors. Ivonne Keh who was now gripped with fear yielded. One of the men dragged her out of the car and shoved her to the back seat. Eric Ricafranco and his unidentified companion then squeezed themselves at the back seat together with the victims while Gerardo Bacungay took the driver’s seat and drove the car out of Bel-Air Subdivision, followed by the red car.

The victims were ordered to close their eyes as they were divested of their money, jewelry and other personal belongings. But Ivonne Keh would occasionally peek to find out where they were being taken and noticed that they were somewhere in Pasay City, later on, in Bicutan, Taguig. Before long, the cars stopped at a vacant lot in an unknown location. This time all three (3) victims were blindfolded and Alberto Drit Chua was taken out of the car and commanded to make a phone call to his family to produce P5,000,000.00 for their release.[3] It was already daybreak when accused-appellants and the victims left the place. Later, they momentarily stopped at an undetermined gasoline station where Ivonne Keh was separated from her mother and uncle, and then proceeded on their way.

After a long drive, Ivonne Keh sensed that they entered an apartelle where she was reunited with her mother and uncle in one of the rooms.[4] The victims later found out that they were somewhere in Tagaytay. Thereafter, their abductors conferred and deliberated on who should go to Manila to get the money and who should stay. Apparently, it was agreed upon that accused-appellant Eric Ricafranco would stay and guard Ivonne Keh, while the rest of accused-appellants would go to Manila with Ivonne Keh’s mother and uncle to withdraw money from a bank.[5]

As soon as the group left, Ivonne Keh pleaded to Eric Ricafranco to allow her to use the telephone. Eric initially refused but, after repeated entreaties, finally acceded and accompanied Ivonne Keh to the telephone outside the room.[6] The victim then immediately called a friend, conversed with her in Chinese, and informed her of the situation and her whereabouts.

Meanwhile, the abduction was reported to the Philippine National Police. At about 7:00 o’clock in the morning of 13 March 1995 Police Inspector Rolando Bijasa of Camp Gen. Ricardo Papa, Bicutan, Taguig, Metro Manila, received orders from then Police Chief Superintendent Jewel Canson to conduct a search and rescue operation.

Two (2) teams were organized and deployed to Tagaytay City, the last known whereabout of victim Ivonne Keh. The police operatives scoured the vicinity and eventually tracked down the victim inside the apartelle. They stormed the room where the victim was detained and rescued her from one of her abductors, Eric Ricafranco, who was then apprehended while watching television. When subjected to a tactical interrogation, he disclosed to the police that his co-accused Gerardo Bacungay would be back at the apartelle as soon as he secured the ransom.[7]

Consequently, the police rescue teams set up a dragnet for the returning kidnappers. At about 6:30 in the evening police “spotters” positioned outside the building radioed the rescue teams inside about two (2) men on board a white car, later identified as accused-appellants Cris Iglesia and Renato Mendez, entering the apartelle compound. The two (2) men went to the front desk of the hotel and, after inquiring from the attendant, proceeded to the room of Ivonne Keh and Eric Ricafranco. The waiting policemen immediately nabbed the two (2) as soon as they entered the room. Cris Iglesia and Renato Mendez vehemently denied any knowledge of the kidnapping, claiming that they were simply hired by Bacungay to pick-up an “eloping couple” in Tagaytay City who turned out to be kidnap victim Ivonne Keh and Eric Ricafranco who was guarding her.

Gerardo Bacungay was apprehended when another police team headed by a certain Capt. Agbayalde arrived at his place in Better Living, Parañaque, Metro Manila, and effected his arrest.[8] The third member of the kidnap group eluded arrest and remained at large to date. No evidence exists on record as to how the other victims, Chinya Hwang and Alberto Drit Chua, were rescued or whether ransom had in fact been paid, since after the incident these two (2) victims hurriedly left the country and decided to settle in Canada, and thus failed to testify during the trial.

Accused-appellants were charged with kidnapping for the purpose of extorting ransom under three (3) separate Informations. They pleaded innocent to the charges. Gerardo Bacungay and Eric Ricafranco proffered a general denial; while Cris Iglesia and Renato Mendez banked heavily on the lack of positive identification by complaining witness Ivonne Keh. As earlier stated, the trial court convicted accused-appellants as charged, and sentenced all of them to death. In rejecting their defenses, the trial court held in the main -

The Court rejects the defense of accused Renato Mendez and Cris Iglesia as ridiculous and without factual basis. In the first place, there was no couple that eloped. Ivonne Keh did not elope with Eric Ricafranco. The latter was arrested in a room of an apartelle in Tagaytay City guarding Ivonne Keh. Besides, common sense will tell us that relatives of an eloping couple will not hire any person to fetch them specially when they were not known to the couple. On the other hand, the evidence clearly shows that kidnap victims Ivonne Keh, Alberto Chua and Chinya Hwang pointed to the accused during the police investigation and by Ivonne Keh during the hearing as one among those who kidnapped them.[9]

Accused Eric Ricafranco was also positively identified by kidnap victims Ivonne Keh during the trial and by Alberto Chua and Chinya Hwang during the police identification line-up as among those who kidnapped them x x x x Finally, accused Gerardo Bacungay was also positively identified by the victims Ivonne Keh, Chinya Hwang and Alberto Chua during the police identification line-up at the police station and by Ivonne Keh during the trial as one of those who kidnapped them x x x x From the recitation of findings of facts of the Court, there is sufficient evidence on record to prove that the purpose of kidnapping was for “extorting ransom from the victims.”[10]

In the present recourse, accused-appellants insist on the reversal of the judgment of conviction and impute the following errors to the court below: (a) The trial court erred in convicting accused-appellants Gerardo Bacungay and Eric Ricafranco on the basis of the doubtful identification by complainant Ivonne Keh, who was blindfolded at the time of the purported kidnapping, and given the poor lighting condition of the area where she was allegedly abducted; and, (b) The trial court erred in convicting Cris Iglesia and Renato Mendez in the absence of a real and direct evidence linking them to the kidnapping.

After a careful review of the records and the arguments of the prosecution and defense, we are satisfied with the finding of the court a quo that all four (4) accused-appellants are indeed guilty of the crimes charged for which they must be punished accordingly.

We deal first with the merits of the appeal of Gerardo Bacungay and Eric Ricafranco.

Complaining witness Ivonne Keh positively identified accused-appellants Gerardo Bacungay and Eric Ricafranco as two (2) of those who abducted them on 12 March 1995. In the police line-up conducted during the criminal investigation of the case, and more significantly during the trial, she pointed to accused-appellants Bacungay and Ricafranco as part of the group of men who kidnapped them, thus -

ATTY. FERNANDEZ: Now you stated that three (3) persons approached you from the car that blocked yours, could you remember the faces of those three (3) persons who drove the car?

WITNESS: Yes, two of them are here, sir.

COURT: (To the witness) And?

WITNESS: The third one is not here.

COURT: You said that two (2) of them are here?

WITNESS: Yes and the other one is not here, your Honor.

COURT: Yes, is not here because he was able to escape. Can you point out who are those two, who among the three (3) blocked your way?

WITNESS: Yes your Honor, there.

COURT: (To the accused) What is your name?

WITNESS: Eric Ricafranco, your Honor.

COURT: And the other one?

ATTY. FERNANDEZ: (Butted in to the witness) You said two, how about the other one? x x x x[11]

COURT: (To the witness) The whole duration, that is what you mean. The whole duration that you were brought and held in that apartelle, can you identify the people who were there?

WITNESS: Yes, sir.

COURT: Who are they?

WITNESS: Him and him and the other one is not here, your Honor.

COURT: (To both accused) Your name?

ACCUSED: Eric Ricafranco, sir.

COURT: How about you?

ACCUSED: Gerardo Bacungay, sir x x x x[12]

In the face of the positive identification by the complaining witness, accused-appellants’ denial vanishes into thin air. Indeed, denial, like alibi, is an insipid and weak defense, being easy to fabricate and difficult to disprove. A positive identification of the accused, when categorical, consistent and straightforward, and without any showing of ill motive on the part of the eyewitness testifying on the matter, prevails over this defense. When there is no evidence to show any dubious reason or improper motive why a prosecution witness would testify falsely against an accused or falsely implicate him in a heinous crime, the testimony is worthy of full faith and credit.[13]

Accused-appellants made much of the following testimony on cross-examination of complaining witness Ivonne Keh:

ATTY. ELEVASO: Ms. Witness will you tell this Honorable Court again at what time were you blocked by the kidnappers?

WITNESS: At 8:00 o’clock, sir.

Q: In the evening?

A: Yes, in the evening, sir x x x x

Q: And how would you say was the lighting at the place?

A: It was dark, sir.

Q: And these three (3) persons who came banging at the window of your car and then you said later that one of them sat at the driver’s seat and two (2) of them sat beside you and your uncle?

A: Two of them sat at the back with us, sir.

Q: Yes, one of them was beside your uncle and one was beside you, could you tell this Honorable Court who was driving the car?

A: He, sir.

COURT: Witness pointing to accused Gerry Bacungay.

Q: And who was seated beside your uncle?

A: There, sir.

COURT: Witness pointing to accused Eric Ricafranco.[14]

Q: This skin mask, how was it placed over the head of the driver?

A: I was shocked, sir. I did not notice that anymore, I did not mind it, sir.

Q: So you did not notice what was he wearing?

A: No, sir.

Q: How about the other one seated beside you, what was he wearing at that time?

A: They were normal, what color, I do not remember.

Q: How about the other person?

A: I do not remember, sir. It was really dark inside the car.

Q: And when you arrived at the... You said you were taken to a village area and at that place, were you able to see the person inside the car?

A: No, sir it was dark and I couldn’t see their faces.

Q: When you were at that dark area you said you were blindfolded?

A: Yes, correct x x x x

Q: You stated repeatedly that the place was dark and that you were blindfolded, could you tell this court why were you able to identify the four (4) accused here?

A: Because my blindfold was really lose, I saw Eric.

Q: How about the others?

A: I also saw them when I went to the apartelle, Gerardo Bacungay.

COURT: Are you referring to him?

A: Yes, sir. I was still blindfolded at that time (underscoring supplied).[15]

Accused-appellants postulated that the darkness of the place where the victims were intercepted and kidnapped, coupled by the fact that the victims were blindfolded, rendered their identification of accused-appellants open to serious doubt.

We are not persuaded. It must be stressed that those conditions did not perdure throughout the duration of the victims’ captivity as to effectively render impossible the positive identification of accused-appellants. The records bear out that: (a) The victims were transported by accused-appellants from one place to another, and in such instance the lighting condition on the road inevitably improved as to permit the victims to see the faces of their kidnappers; (b) The victims, moreover, were not blindfolded at the time they were spirited out of Bel-Air Village, Makati City, as they were merely instructed to close their eyes.[16] In fact, Ivonne Keh was even able to determine, by occasionally opening her eyes, the directions they were heading to - Pasay City and Bicutan. It was only when they finally stopped at an undetermined vacant lot that accused-appellants placed the blindfolds on them;[17] and, (c) Ivonne Keh was locked for several hours in one of the rooms of an apartelle in Tagaytay City with Eric Ricafranco, during which time she undoubtedly had a clear picture of accused-appellant’s face.

Certainly, the identification of accused-appellants by Ivonne Keh, who had ample opportunity to see and imprint their faces in her memory, more than satisfies the judicial mind and conscience. In People v. Candelario[18] we ruled that it is the most natural reaction for victims of crimes to strive to remember the faces of their assailants and the manner in which they committed the crime. Hence, there is no reason for us to disbelieve her testimony or to suspect her motives.

As in all criminal prosecutions where conviction or acquittal depends almost entirely on the victim’s positive identification of the culprits, the arguments presented by accused-appellants in their individual appeal briefs go into the credibility of the complaining witness.[19] As we have held in a legion of cases, the assessment by the trial court of the witness’ credibility is accorded the highest degree of respect from the appellate courts which do not deal with live witnesses but rely solely on the cold pages of a written record.[20] We do not have the least doubt that the court a quo in the instant case prudently fulfilled its obligation as a factual assessor and legal adjudicator.

Article 267 of The Revised Penal Code, as amended by RA 7659, defines the crime of kidnapping thus -

Art. 267. Kidnapping and serious illegal detention. - Any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death;

1. If the kidnapping or detention shall have lasted more than three days.

2. If it shall have been committed simulating public authority.

3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; or if threats to kill him shall have been made.

4. If the person kidnapped or detained shall be a minor, except when the accused is any of the parents, female or a public officer.

The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances abovementioned were present in the commission of the offense.

When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to torture or dehumanizing acts, the maximum penalty shall be imposed (Sec. 8, RA 7659).

The essence of the crime is the actual deprivation of the victim’s liberty coupled with an indubitable proof of intent of the accused to effect the same. In the instant case, there is no mistaking the clear, overwhelming evidence that accused-appellants Gerardo Bacungay and Eric Ricafranco abducted Ivonne Keh and the other victims at gunpoint and deprived them of their freedom. They were blindfolded to prevent them from knowing the place where they were transported and, in order to prevent Ivonne Keh from escaping, she was assigned an armed guard inside the room of the apartelle where she was detained. All these facts more than satisfy the elements necessary to constitute kidnapping.

We likewise find abundant evidence that the kidnapping was committed “for the purpose of extorting ransom” from the victims, as to warrant the mandatory imposition of the death penalty. Complaining witness Ivonne Keh testified -

WITNESS: I stayed in the car, he took my uncle in and I and my Mom were left in the car. They ordered my uncle to call and send money.

ASST. PROSECUTOR DE JOYA: Why were they asking money?

WITNESS: They were asking for 5 Million, sir.

ASST. PROSECUTOR DE JOYA: For what?

WITNESS: That is for our release, sir x x x x[21]

ATTY. ELEVASO: When you said they were asking for ransom, how did you know that they were asking for ransom?

WITNESS: They were asking only money to (sic) us, sir.

ATTY. ELEVASO: From whom?

WITNESS: From my mom, sir.[22]

Prosecution witness P/Supt. Arthur Castillo, one of the arresting officers, confirmed that accused-appellants demanded ransom from the victims -

ATTY. FERNANDEZ: And you also asked Eric Ricafranco about his companion?

WITNESS: Well, he confirmed what Ivonne told us. That Gerry (Bacungay) brought them there and the instruction was just to wait because they were coming back as soon as they got the ransom money (underscoring supplied).[23]

It is immaterial that no direct evidence exists on record on the actual payment of the ransom money. After all, actual payment of ransom is not necessary for the crime to be committed, it being enough that there be at least an overt act of demanding ransom from the victim or any other person as in this case.[24] Our pronouncement in People v. Salimbago[25] is relevant -

Neither actual demand for nor actual payment of ransom is necessary for the crime to be committed. It is enough if the crime was committed “for the purpose of extorting ransom.” Considering therefore that the kidnapping was committed for such purpose, it is not necessary that one or any of the four circumstances be present x x x x

As regards the appeal of accused-appellants Cris Iglesia and Renato Mendez, the Solicitor General suggests that they be acquitted on the ground that there is no clear-cut evidence on how they became part of the criminal conspiracy. Evidently, the Solicitor General believed accused-appellants’ story that they had no knowledge of the kidnapping of the victims, and they merely went to Tagaytay City on an errand, for a fee, from Gerardo Bacungay purportedly to pick up a couple who “eloped,” and bring them back to Bicutan -

In this case, appellants Cris Iglesia and Gerardo Bacungay, due to sheer promise of money in the amount of P1,000.00 once they fetch two (2) lovers in Tagaytay City, proved themselves to be at the wrong place and at the wrong time x x x x it would appear nonetheless that it is appellant Cris Iglesia and Renato De Leon’s (sic) incidental acquaintance to appellant Gerardo Bacungay that plunged them deeper into the assumed conspiracy. What initially appeared to them as an errand for a fee was intertwined to a conspiracy which they immediately denied any knowledge of. An assumed intimacy, or in this case, acquaintance, however, has no legal bearing to the charge of conspiracy as conspiracy transcends companionship.

In this case, however, there is a gnawing dearth of evidence that should satisfactorily show that appellants Cris Iglesia and Renato De Leon (Mendez?) agreed to the kidnapping scheme. Without evidence as to how appellants Cris Iglesia and Renato Mendez participated in its perpetration, conspiracy cannot be, appreciated against them. Evidence of intentional participation is indispensable, as appellants’ mere presence at the scene of the crime cannot be considered as proof of conspiracy.[26]

We disagree with the conclusions of the Solicitor General. Indeed, it is difficult to accept accused-appellants’ feeble and anemic excuse that they had nothing to do with the kidnapping of Ivonne Keh, her mother Chinya Hwang and uncle Alberto Drit Chua. As observed by the trial court to which we agree, “common sense will tell us that relatives of an eloping couple will not hire any person to fetch them especially when they were not known to the couple.”[27] Moreover, it is inconceivable that members of a kidnapping syndicate would entrust the performance of an essential and sensitive phase of their well-planned criminal scheme to people not in cahoots with them, and who had no knowledge whatsoever of the details of their nefarious plan. Obviously, Cris Iglesia and Renato Mendez’ mission in going to Tagaytay City was not as innocent as they claimed it to be; instead, it was part and parcel of the elaborate plot to kidnap the victims and extort ransom from them. In fact, they virtually admitted their participation in the crime, i.e., to fetch Ivonne from her place of detention in Tagaytay City and transfer her to another place in Bicutan, although they were dissociating themselves therefrom by proclaiming lack of knowledge of the criminal design. It would therefore be putting too much strain on the imagination that they were not privy to the plot of Gerardo Bacungay and Eric Ricafranco and that they did not participate in carrying out the criminal conspiracy.

Undoubtedly, conspiracy exists among accused-appellants in perpetrating the kidnapping for ransom. Their individual participation, viewed in its totality, points to a joint purpose and criminal design. Thus, Gerardo Bacungay and Eric Ricafranco snatched the victims from Bel-Air Village, Makati, Metro Manila, and transported and detained them in an apartelle in Tagaytay City; Eric Ricafranco guarded Ivonne Keh to prevent her from escaping, while Gerardo Bacungay and his unidentified companion were busy securing the ransom money in Manila; and, Cris Iglesia and Renato Mendez were designated to pick up Ivonne Keh in Tagaytay City and transfer her to Bicutan to avoid early detection until the payment of ransom money and her eventual release. These acts were complementary to one another and geared toward the attainment of a common ultimate objective: to extort a ransom of P5 million in exchange for the victims’ freedom.

There is conspiracy when two (2) or more persons come to an agreement concerning the commission of a felony and decide to commit it. Proof of agreement to commit a felony, in view of the secrecy by which it is usually hatched, need not rest on direct evidence as the agreement itself may be inferred from the conduct of the accused, disclosing a common understanding among them with respect to the commission of the offense. Thus, if it is proved that two (2) or more persons aimed their acts toward the accomplishment of the same unlawful object, each doing a part so that their acts, though apparently independent, were in fact connected and cooperative, indicating closeness of personal association and a concurrence of sentiment, then conspiracy may be inferred though no actual meeting among them to concert means is proved.[28] Consequently, in the instant case, accused-appellants Cris Iglesia and Renato Mendez are equally liable for the crime and they should not be allowed to escape the full force of the rule that “in a conspiracy the act of one is the act of all.”

Finally, in what perhaps is his final bid at exoneration, accused-appellant Renato Mendez enumerated in his brief his alleged numerous religious activities and accomplishments, suggesting thereby that he was not capable of committing the crime imputed to him. However, the fact that accused-appellant is endowed with sterling qualities hardly justifies the conclusion that he is innocent of the charges against him or that he is incapable of committing them. Manifestations of devotion or piety supposedly equated with religious fervor are not always emblems of good conduct and do not guarantee that an accused cannot commit a crime. An accused is not entitled to an acquittal simply because of his previous, or even present, good moral character and exemplary conduct. The affirmance or reversal of his conviction must be resolved on the basic issue of whether his guilt has been proved beyond any peradventure of doubt.

WHEREFORE, the Decision of the court a quo finding accused-appellants GERARDO BACUNGAY Y CAINDOY, ERIC RICAFRANCO Y MALABANA, CRIS IGLESIA Y OGNALA and RENATO MENDEZ Y DE LEON guilty beyond reasonable doubt of kidnapping for ransom defined and penalized under Art. 267 of The Revised Penal Code, as amended by RA 7659, and imposing upon each of them the supreme penalty of death, is AFFIRMED.

Three (3) Justices of the Court maintain their position that RA 7659 is unconstitutional insofar as it prescribes the death penalty; nevertheless, they submit to the ruling of the majority that the law is constitutional and the death penalty can lawfully be imposed in the instant case.

Upon finality of this Decision and pursuant to Art. 83 of The Revised Penal Code as amended by Sec. 25 of RA 7659, let the records of this case be forthwith forwarded to Her Excellency, the President of the Philippines, for the possible exercise of her pardoning power.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Buena, Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur.