FIRST DIVISION
LUIS MARCOS P. LAUREL, G.R. No. 155076
Petitioner,
Present:
PANGANIBAN,
C.J., Chairperson,
YNARES-SANTIAGO,
- versus - AUSTRIA-MARTINEZ,
CALLEJO,
SR., and
CHICO-NAZARIO,* JJ.
HON. ZEUS C. ABROGAR,
Presiding Judge of the Regional Trial
Court,
PEOPLE OF THE
& PHILIPPINE LONG DISTANCE February 27, 2006
TELEPHONE COMPANY,
Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
D E C I S I O N
CALLEJO, SR., J.:
Before us is a Petition for Review on Certiorari of the Decision[1] of
the Court of Appeals (CA) in CA-G.R. SP No. 68841 affirming the Order issued by
Judge Zeus C. Abrogar, Regional Trial Court (RTC), Makati City, Branch 150,
which denied the “Motion to Quash (With Motion to Defer Arraignment)” in
Criminal Case No. 99-2425 for theft.
Philippine
Long Distance Telephone Company (PLDT) is the holder of a legislative franchise
to render local and international telecommunication services under Republic Act
No. 7082.[2] Under
said law, PLDT is authorized to establish, operate, manage, lease, maintain and
purchase telecommunication systems, including transmitting, receiving and
switching stations, for both domestic and international calls. For this
purpose, it has installed an estimated 1.7 million telephone lines nationwide. PLDT
also offers other services as authorized by Certificates of Public Convenience
and Necessity (CPCN) duly issued by the National Telecommunications Commission
(NTC), and operates and maintains an International Gateway Facility (IGF). The
PLDT network is thus principally composed of the Public Switch Telephone
Network (PSTN), telephone handsets and/or telecommunications equipment used by
its subscribers, the wires and cables linking said telephone handsets and/or
telecommunications equipment, antenna, the IGF, and other telecommunications
equipment which provide interconnections.[3]
PLDT alleges that one of the
alternative calling patterns that constitute network fraud and violate its
network integrity is that which is known as International Simple Resale (ISR). ISR
is a method of routing and completing international long distance calls using International
Private Leased Lines (IPL), cables, antenna or air wave or frequency, which
connect directly to the local or domestic exchange facilities of the
terminating country (the country where the call is destined). The IPL is linked to switching equipment which
is connected to a PLDT telephone line/number.
In the process, the calls bypass the IGF found at the terminating
country, or in some instances, even those from the originating country.[4]
One such alternative calling service
is that offered by Baynet Co., Ltd. (Baynet) which sells “Bay Super Orient
Card” phone cards to people who call their friends and relatives in the
PLDT asserts that Baynet conducts its
ISR activities by utilizing an IPL to course its incoming international long
distance calls from
PLDT pointed out that Baynet utilized
the following equipment for its ISR activities: lines, cables, and antennas or
equipment or device capable of transmitting air waves or frequency, such as an
IPL and telephone lines and equipment; computers or any equipment or device
capable of accepting information applying the prescribed process of the
information and supplying the result of this process; modems or any equipment
or device that enables a data terminal equipment such as computers to
communicate with other data terminal equipment via a telephone line; multiplexers
or any equipment or device that enables two or more signals from different
sources to pass through a common cable or transmission line; switching equipment,
or equipment or device capable of connecting telephone lines; and software,
diskettes, tapes or equipment or device used for recording and storing
information.[7]
PLDT also discovered that Baynet
subscribed to a total of 123 PLDT telephone lines/numbers.[8] Based
on the Traffic Study conducted on the volume of calls passing through Baynet’s ISR
network which bypass the IGF toll center, PLDT incurred an estimated monthly
loss of P10,185,325.96.[9]
Records at the Securities and Exchange Commission (SEC) also revealed that Baynet
was not authorized to provide international or domestic long distance telephone
service in the country. The following are its officers: Yuji Hijioka, a
Japanese national (chairman of the board of directors); Gina C. Mukaida, a Filipina
(board member and president); Luis Marcos P. Laurel, a Filipino (board member
and corporate secretary); Ricky Chan Pe,
a Filipino (board member and treasurer); and Yasushi Ueshima, also a Japanese
national (board member).
Upon complaint of PLDT against Baynet
for network fraud, and on the
strength of two search warrants[10]
issued by the RTC of Makati, Branch 147, National Bureau of Investigation (NBI)
agents searched its office at the 7th Floor,
State Prosecutor Ofelia L. Calo
conducted an inquest investigation and issued a Resolution[11] on
On
On or about September 10-19, 1999, or prior thereto,
in Makati City, and within the jurisdiction of this Honorable Court, the
accused, conspiring and confederating together and all of them mutually helping
and aiding one another, with intent to gain and without the knowledge and
consent of the Philippine Long Distance Telephone (PLDT), did then and there
willfully, unlawfully and feloniously take, steal and use the international
long distance calls belonging to PLDT by conducting International Simple
Resale (ISR), which is a method of routing and completing international long
distance calls using lines, cables, antennae, and/or air wave frequency which
connect directly to the local or domestic exchange facilities of the country
where the call is destined, effectively stealing this business from PLDT
while using its facilities in the estimated amount of P20,370,651.92 to
the damage and prejudice of PLDT, in the said amount.
CONTRARY
TO LAW.[13]
Accused P20,370,651.92
stated in the Information, if anything, represents the rental for the use of
PLDT facilities, and not the value of anything owned by it. Finally, he averred that the allegations in
the Amended Information are already subsumed under the Information for
violation of Presidential Decree (P.D.) No. 401 filed and pending in the
The prosecution, through private
complainant PLDT, opposed the motion,[14] contending
that the movant unlawfully took personal property belonging to it, as follows:
1) intangible telephone services that
are being offered by PLDT and other telecommunication companies, i.e.,
the connection and interconnection to their telephone lines/facilities; 2) the use of those facilities over a
period of time; and 3) the revenues
derived in connection with the rendition of such services and the use of
such facilities.[15]
The prosecution asserted that the use
of PLDT’s intangible telephone services/facilities allows electronic voice
signals to pass through the same, and ultimately to the called party’s
number. It averred that such service/facility
is akin to electricity which, although an intangible property, may,
nevertheless, be appropriated and be the subject of theft. Such service over a period of time for a
consideration is the business that PLDT provides to its customers, which enables
the latter to send various messages to installed recipients. The service rendered by PLDT is akin to
merchandise which has specific value, and therefore, capable of appropriation
by another, as in this case, through the ISR operations conducted by the movant
and his co-accused.
The prosecution further alleged that
“international business calls and revenues constitute personal property
envisaged in Article 308 of the Revised Penal Code.” Moreover, the intangible
telephone services/facilities belong to PLDT and not to the movant and the
other accused, because they have no telephone services and facilities of their
own duly authorized by the NTC; thus, the taking by the movant and his co-accused
of PLDT services was with intent to
gain and without the latter’s consent.
The prosecution pointed out that the accused,
as well as the movant, were paid in exchange for their illegal appropriation and
use of PLDT’s telephone services and facilities; on the other hand, the accused
did not pay a single centavo for their illegal ISR operations. Thus, the acts
of the accused were akin to the use of a “jumper” by a consumer to deflect the current
from the house electric meter, thereby enabling one to steal electricity. The prosecution
emphasized that its position is fortified by the Resolutions of the Department
of Justice in PLDT v. Tiongson, et al. (I.S. No. 97-0925) and in PAOCTF-PLDT v. Elton John Tuason, et al. (I.S. No. 2000-370) which were
issued on
On
In its Order[19]
dated
He further declared that to
categorize “business” as personal property under Article 308 of the Revised
Penal Code would lead to absurd consequences; in prosecutions for theft of gas,
electricity or water, it would then be permissible to allege in the Information
that it is the gas business, the electric business or the water business which has
been stolen, and no longer the merchandise produced by such enterprise.[24]
On
which is abstract and intangible in
form, it is nevertheless considered “property” under Article 308 of the Revised
Penal Code. The CA opined that PLDT’s business of providing international calls
is personal property which may be the object of theft, and cited United States v. Carlos[28] to
support such conclusion. The tribunal also cited Strochecker v. Ramirez,[29] where
this Court ruled that one-half interest in a day’s business is personal
property under Section 2 of Act No. 3952, otherwise known as the Bulk Sales
Law. The appellate court held that the operations of the ISR are not subsumed
in the charge for violation of P.D. No. 401.
Laurel, now the petitioner, assails
the decision of the CA, contending that -
THE COURT OF APPEALS ERRED IN RULING THAT THE PERSONAL
PROPERTY ALLEGEDLY STOLEN PER THE INFORMATION IS NOT THE “INTERNATIONAL LONG
DISTANCE CALLS” BUT THE “BUSINESS OF PLDT.”
THE COURT OF APPEALS ERRED IN RULING THAT THE TERM “BUSINESS”
IS PERSONAL PROPERTY WITHIN THE MEANING OF ART. 308 OF THE REVISED PENAL CODE.[30]
Petitioner avers that the petition
for a writ of certiorari may be filed
to nullify an interlocutory order of the trial court which was issued with
grave abuse of discretion amounting to excess or lack of jurisdiction. In support of his petition before the Court, he
reiterates the arguments in his pleadings filed before the CA. He further
claims that while the right to carry on a business or an interest or participation in
business is considered property under the New Civil Code, the term “business,” however,
is not. He asserts that the Philippine
Legislature, which approved the Revised Penal Code way back in
In its comment on the petition, the Office
of the Solicitor General (OSG) maintains that the amended information clearly
states all the essential elements of the crime of theft. Petitioner’s interpretation as to whether an “international
long distance call” is personal property under the law is inconsequential, as a
reading of the amended information readily reveals that specific acts and
circumstances were alleged charging Baynet, through its officers, including petitioner,
of feloniously taking, stealing and illegally using international long distance
calls belonging to respondent PLDT by conducting ISR operations, thus, “routing
and completing international long distance calls using lines, cables, antenna and/or
airwave frequency which connect directly to the local or domestic exchange facilities
of the country where the call is destined.”
The OSG maintains that the international long distance calls alleged in
the amended information should be construed to mean “business” of PLDT, which, while
abstract and intangible in form, is personal property susceptible of
appropriation.[31] The OSG avers that what was stolen by
petitioner and his co-accused is the business of PLDT providing international
long distance calls which, though intangible, is personal property of the PLDT.[32]
For its part, respondent PLDT asserts
that personal property under Article 308 of the Revised Penal Code comprehends intangible
property such as electricity and gas which are valuable articles for merchandise,
brought and sold like other personal property, and are capable of
appropriation. It insists that the
business of international calls and revenues constitute personal property
because the same are valuable articles of merchandise. The respondent reiterates
that international calls involve (a) the intangible telephone services that are
being offered by it, that is, the connection and interconnection to the
telephone network, lines or facilities; (b) the use of its telephone network,
lines or facilities over a period of time; and (c) the income derived in
connection therewith.[33]
PLDT further posits that business
revenues or the income derived in connection with the rendition of such
services and the use of its telephone network, lines or facilities are personal
properties under Article 308 of the Revised Penal Code; so is the use of said
telephone services/telephone network, lines or facilities which allow
electronic voice signals to pass through the same and ultimately to the called
party’s number. It is akin to electricity which, though intangible property,
may nevertheless be appropriated and can be the object of theft. The use of respondent PLDT’s telephone
network, lines, or facilities over a period of time for consideration is the
business that it provides to its customers, which enables the latter to send
various messages to intended recipients. Such use over a period of time is akin
to merchandise which has value and, therefore, can be appropriated by another. According
to respondent PLDT, this is what actually happened when petitioner Laurel and
the other accused below conducted illegal ISR operations.[34]
The petition is meritorious.
The issues for resolution are as
follows: (a) whether or not the petition for certiorari is the proper remedy of the petitioner in the Court of
Appeals; (b) whether or not international telephone calls using Bay Super
Orient Cards through the telecommunication services provided by PLDT for such
calls, or, in short, PLDT’s business of providing said telecommunication services,
are proper subjects of theft under Article 308 of the Revised Penal Code; and
(c) whether or not the trial court committed grave abuse of discretion
amounting to excess or lack of jurisdiction in denying the motion of the
petitioner to quash the amended information.
On the issue of whether or not the petition for certiorari instituted by the petitioner in the CA is proper, the
general rule is that a petition for certiorari
under Rule 65 of the Rules of Court, as amended, to nullify an order denying a
motion to quash the Information is inappropriate because the aggrieved party
has a remedy of appeal in the ordinary course of law. Appeal and certiorari are mutually exclusive of each other. The remedy of the aggrieved party is to
continue with the case in due course and, when an unfavorable judgment is
rendered, assail the order and the decision on appeal. However, if the trial court issues the order
denying the motion to quash the Amended Information with grave abuse of
discretion amounting to excess or lack of jurisdiction, or if such order is
patently erroneous, or null and void for being contrary to the Constitution,
and the remedy of appeal would not afford adequate and expeditious relief, the
accused may resort to the extraordinary remedy of certiorari.[35] A special civil action for certiorari is also available where there
are special circumstances clearly demonstrating the inadequacy of an appeal. As this Court held in
Nonetheless, the settled rule is that a writ of certiorari may be granted in cases
where, despite availability of appeal after trial, there is at least a prima facie showing on the face of the petition and its
annexes that: (a) the trial court issued the order with grave abuse of
discretion amounting to lack of or in excess of jurisdiction; (b) appeal would
not prove to be a speedy and adequate remedy; (c) where the order is a patent
nullity; (d) the decision in the present case will arrest future litigations;
and (e) for certain considerations such as public welfare and public policy.[37]
In his petition for certiorari in the CA, petitioner averred
that the trial court committed grave abuse of its discretion amounting to
excess or lack of jurisdiction when it denied his motion to quash the Amended
Information despite his claim that the material allegations in the Amended
Information do not charge theft under Article 308 of the Revised Penal Code, or
any offense for that matter. By so
doing, the trial court deprived him of his constitutional right to be informed
of the nature of the charge against him.
He further averred that the order of the trial court is contrary to the
constitution and is, thus, null and void.
He insists that he should not be compelled to undergo the rigors and tribulations
of a protracted trial and incur expenses to defend himself against a
non-existent charge.
Petitioner is correct.
An information or complaint must
state explicitly and directly every act or omission constituting an offense[38] and
must allege facts establishing conduct that a penal statute makes criminal;[39]
and describes the property which is the subject of theft to advise the accused
with reasonable certainty of the accusation he is called upon to meet at the
trial and to enable him to rely on the judgment thereunder of a subsequent
prosecution for the same offense.[40] It must show, on its face, that if the
alleged facts are true, an offense has been committed. The rule is rooted on the constitutional right
of the accused to be informed of the nature of the crime or cause of the
accusation against him. He cannot be
convicted of an offense even if proven unless it is alleged or necessarily
included in the Information filed against him.
As a general prerequisite, a motion
to quash on the ground that the Information does not constitute the offense charged,
or any offense for that matter, should be resolved on the basis of said
allegations whose truth and veracity are hypothetically committed;[41]
and on additional facts admitted or not denied by the prosecution.[42] If the facts alleged in the Information do
not constitute an offense, the complaint or information should be quashed by
the court.[43]
We have reviewed the Amended
Information and find that, as mentioned by the petitioner, it does not contain
material allegations charging the petitioner of theft of personal property
under Article 308 of the Revised Penal Code.
It, thus, behooved the trial court to quash the Amended
Information. The Order of the trial
court denying the motion of the petitioner to quash the Amended Information is
a patent nullity.
On the second issue, we find and so
hold that the international telephone calls placed by Bay Super Orient Card
holders, the telecommunication services provided by PLDT and its business of
providing said services are not personal properties under Article 308 of the
Revised Penal Code. The construction by
the respondents of Article 308 of the said Code to include, within its coverage,
the aforesaid international telephone calls, telecommunication services and
business is contrary to the letter and intent of the law.
The rule is that, penal laws are to
be construed strictly. Such rule is
founded on the tenderness of the law for the rights of individuals and on the
plain principle that the power of punishment is vested in Congress, not in the
judicial department. It is Congress, not
the Court, which is to define a crime, and ordain its punishment.[44] Due respect for the prerogative of Congress
in defining crimes/felonies constrains the Court to refrain from a broad
interpretation of penal laws where a “narrow interpretation” is
appropriate. The Court must take heed to
language, legislative history and purpose, in order to strictly determine the
wrath and breath of the conduct the law forbids.[45] However,
when the congressional purpose is unclear, the court must apply the rule of
lenity, that is, ambiguity concerning the ambit of criminal statutes should be
resolved in favor of lenity.[46]
Penal statutes may not be enlarged by
implication or intent beyond the fair meaning of the language used; and may not
be held to include offenses other than those which are clearly described,
notwithstanding that the Court may think that Congress should have made them
more comprehensive.[47] Words and phrases in a statute are to be
construed according to their common meaning and accepted usage.
As Chief Justice John Marshall
declared, “it would be dangerous, indeed, to carry
the principle that a case which
is within the
reason or
mischief of a statute is within its
provision, so far as to punish a crime not enumerated in the statute because it
is of equal atrocity, or of kindred character with those which are enumerated.[48] When interpreting a criminal statute that
does not explicitly reach the conduct in question, the Court should not base an
expansive reading on inferences from subjective and variable understanding.[49]
Article 308 of the Revised Penal Code
defines theft as follows:
Art. 308. Who
are liable for theft.– Theft is committed by any person who, with intent to
gain but without violence, against or intimidation of persons nor force upon
things, shall take personal property of another without the latter’s consent.
The provision was taken from Article
530 of the Spanish Penal Code which reads:
1. Los
que con ánimo de lucrarse, y sin violencia o intimidación en las personas ni
fuerza en las cosas, toman las cosas muebles ajenas sin la voluntad de su dueńo.[50]
For one to be guilty of theft, the
accused must have an intent to steal (animus
furandi) personal property, meaning the intent to deprive another of his
ownership/lawful possession of personal property which intent is apart from and
concurrently with the general criminal intent which is an essential element of
a felony of dolo (dolus malus).
An information or complaint for
simple theft must allege the following elements: (a) the taking of personal
property; (b) the said property belongs to another; (c) the taking be done with
intent to gain; and (d) the taking be accomplished without the use of violence
or intimidation of person/s or force upon things.[51]
One is apt to conclude that “personal
property” standing alone, covers both tangible and intangible properties and
are subject of theft under the Revised Penal Code. But the words “Personal property” under the
Revised Penal Code must be considered in tandem with the word “take” in the
law. The statutory definition of
“taking” and movable property indicates that, clearly, not all personal
properties may be the proper subjects of theft. The general rule is that, only movable
properties which have physical or material existence and susceptible of
occupation by another are proper objects of theft.[52] As
explained by Cuelo Callon: “Cosa
juridicamente es toda sustancia corporal, material, susceptible de ser
aprehendida que tenga un valor cualquiera.”[53]
According to Cuello Callon, in the
context of the Penal Code, only those movable properties which can be taken and
carried from the place they are found are proper subjects of theft. Intangible properties such as rights and
ideas are not subject of theft because the same cannot be “taken” from the
place it is found and is occupied or appropriated.
Solamente las cosas muebles y corporales pueden ser
objeto de hurto. La sustracción de cosas inmuebles y la cosas incorporales (v.
gr., los derechos, las ideas) no puede integrar este delito, pues no es posible
asirlas, tomarlas, para conseguir su apropiación. El Codigo emplea la expresión “cosas mueble” en el
sentido de cosa que es susceptible de ser llevada del lugar donde se encuentra,
como dinero, joyas, ropas, etcétera, asi
que su concepto no coincide por completo con el formulado por el Codigo civil
(arts. 335 y 336).[54]
Thus, movable properties under
Article 308 of the Revised Penal Code should be distinguished from the rights
or interests to which they relate. A naked right existing merely in
contemplation of law, although it may be very valuable to the person who is
entitled to exercise it, is not the subject of theft or larceny.[55] Such rights or interests are intangible and
cannot be “taken” by another. Thus, right to produce oil, good will or an
interest in business, or the right to engage in business, credit or franchise
are properties. So is the credit line represented by a credit card. However, they are not proper subjects of theft
or larceny because they are without form or substance, the mere “breath” of the
Congress. On the other hand, goods,
wares and merchandise of businessmen and credit cards issued to them are
movable properties with physical and material existence and may be taken by
another; hence, proper subjects of theft.
There is “taking” of personal
property, and theft is consummated when the offender unlawfully acquires
possession of personal property even if for a short time; or if such property
is under the dominion and control of the thief. The taker, at some particular amount, must
have obtained complete and absolute possession and control of the property
adverse to the rights of the owner or the lawful possessor thereof.[56] It is not necessary that the property be
actually carried away out of the physical possession of the lawful possessor or
that he should have made his escape with it.[57]
Neither asportation nor actual manual possession of property is required. Constructive possession of the thief of the
property is enough.[58]
The essence of the element is the
taking of a thing out of the possession of the owner without his privity and
consent and without animus revertendi.[59]
Taking may be by the offender’s own
hands, by his use of innocent persons without any felonious intent, as well as
any mechanical device, such as an access device or card, or any agency, animate
or inanimate, with intent to gain.
Intent to gain includes the unlawful taking of personal property for the
purpose of deriving utility, satisfaction, enjoyment and pleasure.[60]
We agree with the contention of the
respondents that intangible properties such as electrical energy and gas are
proper subjects of theft. The reason for this is that, as explained by this
Court in United States v. Carlos[61]
and United States v. Tambunting,[62] based
on decisions of the Supreme Court of Spain and of the courts in
In People ex rel Brush Electric Illuminating Co. v. Wemple,[64]
the Court of Appeals of
Gas and electrical energy should not
be equated with business or services provided by business entrepreneurs to the
public. Business does not have an exact
definition. Business is referred as that which occupies the time, attention and
labor of men for the purpose of livelihood or profit. It embraces everything that which a person
can be employed.[66] Business
may also mean employment, occupation or profession. Business is also defined as a commercial
activity for gain benefit or advantage.[67] Business,
like services in business, although are properties, are not proper subjects of
theft under the Revised Penal Code because the same cannot be “taken” or “occupied.” If it were otherwise, as claimed by the
respondents, there would be no juridical difference between the taking of the
business of a person or the services provided by him for gain, vis-ŕ-vis, the taking of goods, wares or
merchandise, or equipment comprising his business.[68] If it was its intention to include “business”
as personal property under Article 308 of the Revised Penal Code, the
Philippine Legislature should have spoken in language that is clear and
definite: that business is personal property under Article 308 of the Revised
Penal Code.[69]
We agree with the contention of the
petitioner that, as gleaned from the material averments of the Amended
Information, he is charged of “stealing the international long distance calls belonging
to PLDT” and the use thereof, through the ISR. Contrary to the claims of the
OSG and respondent PLDT, the petitioner is not charged of stealing P20,370,651.95
from said respondent. Said amount of P20,370,651.95 alleged in the Amended
Information is the aggregate amount of access, transmission or termination
charges which the PLDT expected from the international long distance calls of the
callers with the use of Baynet Super Orient Cards sold by Baynet Co. Ltd.
In defining theft, under Article 308
of the Revised Penal Code, as the taking of personal property without the
consent of the owner thereof, the Philippine legislature could not have
contemplated the human voice which is converted into electronic impulses or
electrical current which are transmitted to the party called through the PSTN
of respondent PLDT and the ISR of Baynet Card Ltd. within its coverage. When the
Revised Penal Code was approved, on
Respondent PLDT does not acquire
possession, much less, ownership of the voices of the telephone callers or of
the electronic voice signals or current emanating from said calls. The human voice and the electronic voice
signals or current caused thereby are intangible and not susceptible of possession,
occupation or appropriation by the respondent PLDT or even the petitioner, for
that matter. PLDT merely transmits the electronic voice signals through its
facilities and equipment. Baynet Card Ltd., through its operator, merely
intercepts, reroutes the calls and passes them to its toll center. Indeed, the parties called receive the
telephone calls from
In
this modern age of technology, telecommunications systems have become so
tightly merged with computer systems that it is difficult to know where one
starts and the other finishes. The
telephone set is highly computerized and allows computers to communicate across
long distances.[71] The
instrumentality at issue in this case is not merely a telephone but a telephone
inexplicably linked to a computerized communications system with the use of
Baynet Cards sold by the Baynet Card Ltd. The corporation uses computers, modems and software, among
others, for its ISR.[72]
The
conduct complained of by respondent PLDT is reminiscent of “phreaking” (a slang
term for the action of making a telephone system to do something that it
normally should not allow by “making the phone company bend over and grab its
ankles”). A “phreaker” is one who engages in the act of
manipulating phones and illegally markets telephone services.[73]
Unless the phone company replaces all its hardware, phreaking would be
impossible to stop. The phone companies
in
The petitioner is not charged, under
the Amended Information, for theft of telecommunication or telephone services
offered by PLDT. Even if he is, the term
“personal property” under Article 308 of the Revised Penal Code cannot be
interpreted beyond its seams so as to include “telecommunication or telephone services”
or computer services for that matter. The word “service” has a variety of
meanings dependent upon the context, or the sense in which it is used; and, in
some instances, it may include a sale.
For instance, the sale of food by restaurants is usually referred to as
“service,” although an actual sale is involved.[74] It may also mean the duty or labor to be
rendered by one person to another; performance of labor for the benefit of
another.[75] In the case of PLDT, it is to render local
and international telecommunications services and such other services as
authorized by the CPCA issued by the NTC.
Even at common law, neither time nor services may be taken and occupied
or appropriated.[76] A service is generally not considered
property and a theft of service would not, therefore, constitute theft since
there can be no caption or asportation.[77] Neither is the unauthorized use of the
equipment and facilities of PLDT by the petitioner theft under the aforequoted
provision of the Revised Penal Code.[78]
If it was the intent of the Philippine
Legislature, in 1930, to include services to be the subject of theft, it should
have incorporated the same in Article 308 of the Revised Penal Code. The Legislature did not. In fact, the Revised Penal Code does not even
contain a definition of services.
If taking of telecommunication
services or the business of a person, is to be proscribed, it must be by
special statute[79] or an
amendment of the Revised Penal Code. Several states in the
(a) Acquisition of services. --
(1) A person is guilty of theft if he intentionally
obtains services for himself or for another which
he knows are available only for compensation, by deception or threat, by
altering or tampering with the public utility meter or measuring device by
which such services are delivered or by causing or permitting such altering or
tampering, by making or maintaining any unauthorized connection, whether
physically, electrically or inductively, to a distribution or transmission
line, by attaching or maintaining the attachment of any unauthorized device to
any cable, wire or other component of an electric, telephone or cable
television system or to a television receiving set connected to a cable
television system, by making or maintaining any unauthorized modification or
alteration to any device installed by a cable television system, or by false
token or other trick or artifice to avoid
payment for the service.
In the State of
(a) A person commits theft when he obtains the
temporary use of property, labor or services of another which are available
only for hire, by means of threat or deception or knowing that such use is
without the consent of the person providing the property, labor or services.
In 1980, the drafters of the Model
Penal Code in the
(1) A person is guilty of theft if he purposely
obtains services which he knows are available only for compensation, by deception
or threat, or by false token or other means to avoid payment for the service.
“Services” include labor, professional service, transportation, telephone or
other public service, accommodation in hotels, restaurants or elsewhere,
admission to exhibitions, use of vehicles or other movable property. Where compensation for service is ordinarily
paid immediately upon the rendering of such service, as in the case of hotels
and restaurants, refusal to pay or absconding without payment or offer to pay
gives rise to a presumption that the service was obtained by deception as to
intention to pay; (2) A person commits theft if, having control over the
disposition of services of others, to which he is not entitled, he knowingly
diverts such services to his own benefit or to the benefit of another not
entitled thereto.
Interestingly, after the State
Supreme Court of Virginia promulgated its decision in Lund v. Commonwealth,[80]
declaring that neither time nor services may be taken and carried away and are
not proper subjects of larceny, the General Assembly of Virginia enacted Code
No.
Computer time or services or data processing services
or information or data stored in connection therewith is hereby defined to be
property which may be the subject of larceny under § § 18.2-95 or 18.2-96, or
embezzlement under § 18.2-111, or false pretenses under § 18.2-178.
In the State of
“A person commits the crime of theft of services if:
(a) He intentionally obtains services known by him to be available only for
compensation by deception, threat, false token or other means to avoid payment
for the services …”
In the
Significantly, a prosecution under
the law shall be without prejudice to any liability for violation of any
provisions of the Revised Penal Code inclusive of theft under Rule 308 of the
Revised Penal Code and estafa under
Article 315 of the Revised Penal Code. Thus, if an individual steals a credit card
and uses the same to obtain services, he is liable of the following: theft of the
credit card under Article 308 of the Revised Penal Code; violation of Republic Act No. 8484; and estafa under Article 315(2)(a) of the
Revised Penal Code with the service provider as the private complainant. The petitioner is not charged of estafa before the RTC in the Amended
Information.
Section 33 of Republic Act No.
8792, Electronic Commerce Act of 2000 provides:
Sec. 33. Penalties.—
The following Acts shall be penalized by fine and/or imprisonment, as follows:
a) Hacking or cracking which refers to unauthorized
access into or interference in a computer system/server or information and
communication system; or any access in order to corrupt, alter, steal, or
destroy using a computer or other similar information and communication
devices, without the knowledge and consent of the owner of the computer or
information and communications system, including the introduction of computer
viruses and the like, resulting on the corruption, destruction, alteration,
theft or loss of electronic data messages or electronic documents shall be
punished by a minimum fine of One hundred thousand pesos (P100,000.00)
and a maximum commensurate to the damage incurred and a mandatory imprisonment
of six (6) months to three (3) years.
IN LIGHT OF ALL THE FOREGOING, the
petition is GRANTED. The assailed Orders of the Regional Trial
Court and the Decision of the Court of Appeals are REVERSED and SET ASIDE. The Regional Trial Court is directed to
issue an order granting the motion of the petitioner to quash the Amended
Information.
SO ORDERED.
ROMEO J. CALLEJO, SR.
Associate Justice
WE CONCUR:
(No part)
ARTEMIO V. PANGANIBAN
Chief Justice
Chairperson
CONSUELO YNARES-
Associate Justice Associate Justice
(On
leave)
MINITA V. CHICO-NAZARIO
Associate
Justice
C E R T I F I C A T I O N
Pursuant to Section 13,
Article VIII of the Constitution, it is hereby certified that the conclusions
in the above decision were reached in consultation before the case was assigned
to the writer of the opinion of the Court’s Division.
ARTEMIO V. PANGANIBAN
Chief
Justice
* On leave.
[1] Penned by Associate Justice Bienvenido L. Reyes, with Associate Justices Roberto A. Barrios and Edgardo F. Sundiam, concurring.
[2] an act further amending act no. 3436, as
amended, “xxx consolidating the
terms and conditions of the franchise granted to [pldt], and extending the said
franchise by twenty-five (25) years from the expiration thereof xxx.”
[3] Rollo, pp. 129-130.
[4]
[5]
[6]
[7]
[8]
[9]
[10]
[11] Rollo, pp. 243-246.
[12] NOW, THEREFORE, I FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution a Commander-in-Chief of all the Armed Forces of the Philippines, and pursuant to Proclamation No. 1081 dated September 21, 1972, and General Order No. 1 dated September 22, 1972, as amended, do hereby order and decree that any person who installs any water, electrical or telephone connection without previous authority from the Metropolitan Waterworks and Sewerage System, the Manila Electric Company or the Philippine Long Distance Telephone Company, as the case may be; tampers and/or uses tampered water or electrical meters or jumpers or other devices whereby water or electricity is stolen; steals or pilfers water and/or electric meters or water, electric and/or telephone wires; knowingly possesses stolen or pilfered water and/or electrical meters as well as stolen or pilfered water, electrical and/or telephone wires, shall, upon conviction, be punished by prision correccional in its minimum period or a fine ranging from two thousand to six thousand pesos, or both. If the violation is committed with the connivance or permission of an employee or officer of the Metropolitan Waterworks and Sewerage System, or the Manila Electric Company, or the Philippine Long Distance Telephone Company, such employee or officer shall, upon conviction, be punished by a penalty one degree lower than prision correccional in its minimum period and forthwith be dismissed and perpetually disqualified from employment in any public or private utility or service company.
[13] Rollo, pp. 57-58. (Underscoring
supplied)
[14]
[15]
[16]
[17]
[18] 31 Phil. 494 (1915).
[19] Rollo, pp. 87-94.
[20] 44 Phil. 933, 935 (1922).
[21] CA rollo, p. 6.
[22]
[23] Id.
[24]
[25]
Resolution No. 149, Series of 1999 dated
[26]
[27]
[28] 21 Phil. 553 (1911).
[29] Supra note 20, at 935.
[30] Rollo, pp. 18-19.
[31]
[32]
[33]
[34] Rollo, p. 670.
[35] Madarang v. Court of Appeals, G.R. No.
143044,
[36] G.R.
No. 148156,
[37]
[38] Section 9, Rule 110 of the Revised Rules of Criminal Procedure.
[39] People v. Weg, 450 N.Y.S.2d 957 (1982).
[40] Clines v. Commonwealth, 298 S.W. 1107
(1927).
[41]
[42] Garcia v. Court of Appeals, 334 Phil.
621, 634 (1997); People v. Navarro,
75 Phil. 516, 518 (1945).
[43] Section 3(a), Rule 117 of the 2000 Rules of Criminal Procedure.
[44]
[45] Dowling v.
[46] Liparota v.
[47] Kelley v. State, 119 N.E.2d 322 (1954); State v. McGraw, 480 N.E.2d 552 (1985).
[48] United States v. Wiltberger, supra note
44.
[49] Dowling v.
[50]
Viada, codigo penal reformado de 1870, concordado y comentado, 219.
The felony has the following elements:
(1) Apoderamiento de una cosa mueble; (2) Que la cosa mueble sea ajena; (3) Que el apoderamiento se verifique con intención de lucro; (4) Que se tome la cosa sin la voluntad de su
dueńo; (5) Que se realice el apoderamiento
de la cosa sin violencia intimidación en las personas ni fuerza en las cosas
(Viada, 220-221).
[51] People v. Sison, 379 Phil. 363, 384
(2000); People v. Bustinera, G.R. No.
148233,
[52] Cuello Callon, Derecho Penal, Tomo II, p. 724.
[53]
[54] See
note 52, p. 725. (Underscoring supplied)
[55] 36 C.J.S. 737.
[56] People v. Ashworth, 222 N.Y.S. 24 (1927).
[57] People v. Salvilla, G.R. No. 86163,
[58] Harris v. State, 14 S.W. 390 (1890).
[59] Woods v. People, 78 N.E. 607 (1906).
[60] Villacorta v. Insurance Commission, G.R. No.
54171, October 28, 1980, 100 SCRA 467.
[61] Supra note 28.
[62] 41 Phil. 364 (1921).
[63] 11 N.E.2d 403 (1937).
[64] 29 N.E. 808 (1892). (Emphasis supplied)
[65] Supra note 59 (Emphasis supplied)
[66] Doggett v. Burnet, 65 F.2d 191 (1933).
[67] Black’s Law Dictionary, 5th ed., p. 179; Union League Club v. Johnson, 108 P.2d 487, 490 (1940).
[68]
[69] People v. Tansey, 593 N.Y.S. 2d 426 (1992).
[70] People v. Case, 42 N.Y.S. 2d 101.
[71] Commonwealth v. Gerulis, 616 A.2d 686
(1992).
[72] Rollo, p. 138.
[73] Commonwealth
v. Gerulis, supra note 71.
[74] Central Power and Light Co. v. State, 165
S.W. 2d 920 (1942).
[75] Black’s Law Dictionary, p. 1227.
[76]
[77] Imbau, Thomson, Moenssens, Criminal Law, Second Edition, p. 6247, 2 Wharton Criminal Law, Prodded , § 604:369.
[78]
[79] People v. Tansey, supra note 69.
[80] See note 76.