SECOND DIVISION
|
SU ZHI SHAN @ Petitioner,
- versus - PEOPLE OF THE PHILIPPINES/SOLICITOR GENERAL, Respondent. |
G.R.
No. 169933 Present: QUISUMBING, J., Chairperson, CARPIO,
CARPIO MORALES,
TINGA, and VELASCO, JR., JJ.
Promulgated: March
9, 2007 |
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D E C I S I O N
CARPIO MORALES, J.:
Two informations
for violation of Republic Act (RA) 6425, as amended by RA 7659 (Dangerous Drugs
Act), against Su Zhi Shan alias Alvin Ching So were
filed before the Regional Trial Court (RTC) of Malabon. The first, docketed as Criminal Case No. 22992-MN,
reads:
x x x x
That on or about May 31, 2000, in Malabon, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent and without license nor authority of law, did then and there, willfully, unlawfully, and feloniously sell and deliver to a poseur-buyer four hundred ninety five point three (495.3) grams of methamphetamine hydrochloride, more or less, and commonly known as shabu, which is a regulated drug.
CONTRARY TO LAW.
x x x x[1]
The second, docketed as Criminal Case
No. 22993-MN, reads:
x x x x
That on or about March 31, 2000, in Barangay Potrero, Malabon, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized to possess or use any regulated drug, did then and there, willfully, unlawfully, and knowingly have in his possession methamphetamine hydrochloride, otherwise known as shabu, a regulated drug with an approximate weight of fifteen thousand seventy six point one (15,076.1) grams, in violation of the aforecited law [Section 16, Article III of RA No. 6425 as amended by RA No. 7659].
CONTRARY TO LAW.
x x x x[2]
From the account of the prosecution,
the following events led to the filing of the cases:
On being informed on March 20, 2000 by
a confidential informant that one Su Zhi Shan alias
Alvin Ching So (the accused) was pushing drugs in Manila, the Philippine
National Police (PNP) Narcotics Group conducted a 10-day surveillance in the
vicinity of the residence of the accused at 19 Yellowbell,
Araneta Village, Potrero, Malabon, Metro Manila.
In the course of the surveillance, a
test-buy operation was conducted by SPO1 Ed Badua
(SPO1 Badua) and the informant during which 1.27 grams of a substance were
obtained. When subjected to laboratory
examination, the substance was found positive for methamphetamine hydrochloride
or shabu.
Another test-buy, which was later to
become a buy-bust operation, was thereafter arranged by SPO1 Badua and the informer to take place on
As scheduled, PO1 Christopher Guste (PO1 Guste), acting as poseur-buyer, and the
informant went to the pre-arranged meeting place at
While the accused was in custody, the
PNP Narcotics Group applied for, and was granted, a search warrant on his residence.[5] During the search, the PNP Narcotics Group
seized a box of 16 transparent plastic bags containing an undetermined quantity
of white crystalline substance, and a digital weighing scale.[6]
The red plastic bag of white
crystalline substance which was obtained during the buy-bust operation on
The PNP Narcotics Group thus brought the
accused to the Office of the National Prosecution Service of the Department of
Justice for inquest proceedings. Finding
probable cause to hale the accused into court, the above-quoted informations were filed against him.
The accused, denying that his name is
“Alvin Ching So” or “Su Zhi Shan,” claimed that he
was a victim of hulidap.[8] He gave the following details of the
circumstances attendant to his arrest:
After he withdrew P500,000 from
Equitable Bank at Blumentritt, Sta. Cruz, P500,000 he had just withdrawn. He was then brought to
The accused
questioned the search warrant as a “general warrant” which is not based on the
applicant’s personal knowledge.[10]
Branch 72 of the RTC of Malabon, by Decision of
WHEREFORE, premises considered, judgment is hereby rendered finding the accused guilty beyond reasonable doubt of the crimes of drug pushing/selling 495.3 grams of methamphetamine hydrochloride and of illegally possessing 15,076.1 grams of said substance, which are penalized under Sections 15 and 16, Art. III, RA 6425, as amended by RA 7659. In view of the attendance of one aggravating circumstance in the commission of these offenses [use of a motor vehicle], which was not offset by any mitigating circumstance, the accused is hereby condemned to suffer the penalty of DEATH and to pay a fine of P10,000,000.00 in each of the two cases.
The Revo Van owned by So as shown in Exhibit Q which is now in the possession of the Special Project Office (SPO), Narcotics Group, Camp Crame, Quezon City is ordered forfeited in favor of the government for being an instrument for the crime to be disposed of under the rules governing the same (Section 20, Article IV, RA 6425, as amended by RA 7659).
The 17 plastic bags of methamphetamine hydrochloride subjects of these cases custody of which was retained by the PNP Crime Laboratory, are also forfeited in favor of the government to be disposed of under rules governing the same.
In both cases, costs against the accused.
SO ORDERED.[11] (Italics in the original; Emphasis and underscoring supplied)
The records of the case were
transmitted to this Court on
By Decision[15] of
The Court of Appeals thus disposed as
follows:
WHEREFORE, this Court renders judgment as follows:
a. The Decision pertaining to Crim. Case No. 22992-MN, for violation of Section 15, RA No. 6425, as amended, is AFFIRMED with the MODIFICATION that appellant is hereby sentenced to suffer the penalty of reclusion perpetua;
b. Appellant is hereby ACQUITTED on reasonable doubt in Crim. Case No. 22993-MN, for violation of Section 16, RA No. 6425, as amended. However, the 15,076.1 grams of “shabu” shall remain in the custody of the PNP Crime Laboratory, for proper disposition in accordance with law; and
c. The van ordered by the trial court to be forfeited in favor of the State shall be returned to him through the regular legal processes.
SO ORDERED.[18] (Italics, emphasis and underscoring in the
original)
His Motion for Reconsideration[19]
having been denied,[20]
the accused, through counsel, filed the instant Petition[21]
for review, assigning 24 errors[22]
which are synthesized in capsule form as follows:
1.
Convicting
the wrong person
2.
Not
finding irregularities in the procurement and service of the search warrant
3.
Considering
documents which were not offered in evidence, thus ignoring Sec. 34, Rule 132
of the Rules of Court
4.
Failing to comply
with standard procedures of drug analysis
5.
Holding
that possessing or selling of any substance, such as tawas, as shabu
is punishable
6.
Failure
to apply the ruling in People v. Ventura[23]
that “it is incredible to buy without the shabu in sight”[24]
7.
Failing
to apply the rule on entertained denial or alibi
8.
Imposing
two outlandish death penalties and imposing P20 million fine
9.
Crediting
the clear hearsay evidence regarding the alleged test-buy and the bizarre story
regarding the alleged buy-bust
10. Holding that the elements of selling
and possessing shabu are present although not proved (specifically the
element that the accused lacked the authority to sell shabu)[25]
11. Finding that there was no withdrawal
of P500,000, and
12. Ignoring non-compliance with
safeguards against illegal buy-bust or with Supreme Court decisions on
buy-bust.
At the outset, this Court declares it
unnecessary to entertain the issues on alleged irregularities in the
procurement and service of the search warrant, the Court of Appeals having acquitted
the accused in the case for illegal possession of shabu. Just as it declares it unnecessary to dwell
on the alleged impropriety in the imposition of the death penalty, the
appellate court having imposed instead reclusion
perpetua, and given that RA 9346 has prohibited the imposition of
death penalty to thus accordingly modify the present provision of RA 7659.[26]
In
support of his plea for acquittal, the accused (hereafter petitioner) submits
that the following grounds dent the credibility of PO1 Guste’s
account on the buy-bust operation:
FIRST – Badua and confidential informant allegedly conducted a test-buy. They never mentioned or arranged a buy-bust operation with Guste or anybody. Instead, Badua and Balolong applied for a search warrant based on the alleged test-buy. They did not participate in the alleged buy-bust. They never coordinated with Guste they never arranged any buy-bust with Guste.
SECOND
– There was no negotiation to sell.
Badua and the confidential informant never negotiated with the accused
to sell along
THIRD – There was no surveillance of the venue of the alleged buy[-]bust operation. Matta testified that what was placed under surveillance was allegedly the residence of the appellant and Ryan Ong for the purpose of securing the search warrant.
FOURTH – The alleged money was not in sight. It was allegedly wrapped.
FIFTH – Alvin Ching So (not Su Jing Yue or So Alvin Cheng) allegedly delivered the shabu without first seeing the money. Guste allegedly delivered the wrapped boodle without seeing the shabu first.
SIXTH – On cross-examination, Guste admitted that his only participation was allegedly as poseur-buyer.
SEVENTH – The testimony of Guste, alleged poseur-buyer was not corroborated; hence, incredible.
EIGHT – The alleged buy-bust is contrary to human experience and ordinary course of things. The boodle is readily detectible, especially only two (2) pieces of genuine money were allegedly placed on top and bottom of the bundles of boodle. The bundles were wrapped with brown envelope folded twice. The boodle was not shown to the alleged seller. How could there be buying and busting under the circumstances? The buyer himself does not believe selling could be made for a boodle appearing as fake; hence the clumsy use of two (2) pieces of genuine money. x x x[27] (Emphasis in the original)
Petitioner’s
submissions do not persuade. PO1 Guste’s testimony was not hearsay. He was the poseur-buyer who participated in
the buy-bust operation. His testimony
was corroborated by Chief Inspector Eleazar Matta who declared that:
He (Matta) was present when the confidential
informer relayed information regarding Alvin Ching So’s drug pushing
activities;[28] he participated in planning and conducting
the surveillance operation in the vicinity of the residence of the accused;[29] after the test-buy was conducted, SPO1 Badua reported to him;[30] and he was the team leader dispatched to
conduct and he was present during the buy-bust operation on March 31, 2000 at Victoneta Avenue, Malabon.[31]
PO1 Guste’s account is likewise complemented by overwhelming
documentary and object evidence, including his request for laboratory
examination of the seized substance,[32]
the laboratory examination reports,[33] the buy-bust money used,[34]
the pre-operational coordination sheet of the PNP Narcotics Group,[35]
the Booking Sheet/Arrest Report,[36] and
the substance obtained during the buy-bust operation[37]
and a photograph thereof.[38]
That the
prosecution failed to present SPO1 Badua and the
confidential informer does not weaken its case as the discretion to choose
witnesses to be presented for the State and to dispense with the testimonies of
witnesses who would only give corroboration rests on the prosecution.[39]
If
petitioner believed that there were witnesses who could have exculpated him, he
could have called for them, even by compulsory process,[40]
but he did not.
That no
evidence was presented on the conduct of the surveillance and of the venue for the
test-bust operation and that the surveillance was for the purpose of procuring
the search warrant do not help petitioner’s case. For even if no prior surveillance were made, the
validity of an entrapment operation, especially when the buy-bust team members
were accompanied to the scene by their informant,[41]
as in the case at bar,[42] is
not affected.
Invoking
People v. Ventura[43] and inviting attention to the fact that the purchase
money presented as evidence of the second buy-bust operation was not visible as
it was wrapped in an envelope, petitioner argues:
In
[People v.
Petitioner’s
argument does not persuade too. It will
be recalled that a test-buy operation had earlier been conducted, facilitated by
the same confidential informant who was undoubtedly known to petitioner. Given the trust accorded to the informant, the
hurried nature of consummating similar transactions and the place of the
transaction – a busy street open to bystanders and passersby, there was nothing unusual about petitioner’s not checking first the contents of
the brown envelope.
Neither
does the contention of petitioner that it would have been improbable for the
buy-bust sale to have taken place because under the circumstances the boodle
money could have been easily detected as fake persuade. This Court has affirmed convictions in cases of
buy-bust operations where the accused actually saw that the “money” was boodle.[45]
Respecting
petitioner’s disclaimer that he is the Su Zhi Shan
alias Alvin Ching So accused in the case, he contends that there is no
scintilla of evidence offered to prove that said accused is the same Su Jing Yue alias So Alvin Cheng
that he is.[46] This contention falls in the face of this
Court’s repeated rulings that the erroneous designation in the Information of
the name of the accused does not vitiate it if it is clearly proven that the
person accused and brought to court is the person who committed the
crime.[47]
As People
v. Navaja[48] holds, whether there lived another
person with the same name as the accused in the area where the buy-bust operation
was conducted is immaterial, the identity of the therein accused as the
person who sold the marijuana to the poseur-buyers having been established,[49] as in the present case.
It bears
noting that the information charging petitioner was prepared after he was
arrested and while he was in custody. There
could, therefore, be no doubt that the person who was arrested and brought to
court is the same person charged in the information. Even PO1
Guste identified petitioner in open court[50]
as the person who sold the shabu to him as the poseur-buyer.
On petitioner’s taking issue with the
manner by which laboratory analysis of the confiscated plastic bags of shabu were examined, thus:
The Chemist allegedly examined only 3% of the confiscated substance. With respect to the 3% specimen, she did not know how and why the 3% represented the entire substance in 16 [sic] packages. She did not get the specimen or sampling in accordance with universally accepted sampling procedure; that is mixing, coning and quartering of 10 packages in accordance with the UN Guideline. Therefore, she could not know that the 3% specimen was the correct representative specimen.[51] (Emphasis in original),
he proffers that a quantitative
examination of the confiscated substance should have been done because
x x x [the] substance sold as shabu
being merely regulated, should be proved beyond reasonable doubt as real
shabu. Hence, the essential requisite
of proper qualitative and quantitative examination to determine the shabu
content of a substance suspected as shabu.
The reason is: The punishable
crime is selling or possessing shabu.
Besides, the penalty is based on the shabu content. For example, we have a 200
grams [sic] of tawas. 99.999% is tawas, .001% is shabu. The 200 grams of tawas cannot be the basis of
[the penalty] because it is only positive of .001% of shabu.[52] (Emphasis
in the original)
Albeit this issue is immaterial in so
far as the charge for illegal possession is concerned, petitioner having been
acquitted by the appellate court, this Court notes, en passant, that petitioner’s position does not likewise persuade.
Laboratory tests confirmed that the
substance confiscated during the operations is shabu.[53] The records of the case reveal that the
forensic chemical officer, Police Inspector Miladenia O. Tapan, who conducted
the laboratory examination took representative samples, by using the quartering
method, from the plastic bag of substance subject of the test-buy transaction,
as well as from that subject of the buy-bust operation.[54]
Case law has it that the forensic chemist is not mandated to examine the entire mass of shabu confiscated by the policemen xxx. It is enough that a sample of the said substance be subjected to qualitative examination. x x x [A] sample taken from one package is logically presumed to be representative of the entire contents of the package unless proven otherwise by the accused himself.[55] (Citations omitted; Emphasis and underscoring supplied)
In the case at bar, the accused failed
to present evidence refuting the presumption that the samples taken from the contents
of the plastic bags are representative of the entire contents thereof. As this
Court observed in People v. Johnson,[56]
“x x x if accused
appellant were not satisfied with the results, it would have been a simple
matter for [him] to ask for an independent examination of the substance by
another chemist. This [he] did not do.”[57]
As for
the contention of the accused that the prosecution failed to prove that he
lacked the authority to sell shabu, this Court, in addressing a similar contention
in People v. Manalo, [58] held:
The general rule is that if a criminal charge is predicated on a negative allegation, or a negative averment is an essential element of a crime, the prosecution has the burden to prove the charge. However, this rule admits of exceptions. Where the negative of an issue does not permit of direct proof, or where the facts are more immediately within the knowledge of the accused, the onus probandi rests upon him. Stated otherwise, it is not incumbent on the prosecution to adduce positive evidence to support a negative averment the truth of which is fairly indicated by established circumstances and which, if untrue, could readily be disproved by the production of documents or other evidence within the defendant’s knowledge or control. For example, where a charge is made that a defendant carried on a certain business without a license (as in the case at bar, where the accused is charged with the sale of a regulated drug without authority), the fact that he has a license is a matter which is peculiarly within his knowledge and he must establish that fact or suffer conviction. x x x[59] (Italics in the original)
As in Manalo, the circumstances surrounding the two occasions
of sale subject of the first case indicate that petitioner had no authority to
sell shabu. Petitioner sold the shabu not in a hospital or pharmacy but at a street
corner.[60] He could have very easily presented a copy of
his license or any other document proving his authority to sell but he did not.[61]
The bare allegation then of petitioner
that his constitutional rights were violated during the
The trial court thus correctly rejected
the defense of hulidap. Indeed, courts generally view with disfavor
this defense, which is commonly raised in drug cases, it being easy to concoct
and difficult to prove.[64]
Exhibits “5” and “6” – the photocopies
of withdrawal slips[65]
presented by the accused to prove that he withdrew money before the supposed hulidap
incident – do not help petitioner’s case.
As the trial court noted,
The
“hulidap” aspect of the defense put up by So will not
hold water in view of Exhibit W, a pass book of Equitable PCI Bank in the name
of Alvin C. So bearing the same account number as those listed in Exhibits 5
and 6. This passbook does not reflect
any withdrawal having been made on
Petitioner nevertheless contends that
the trial court, in appreciating the bank passbook as evidence, violated
Section 34, Rule 132 of the Rules of Evidence which prohibits courts from
considering evidence which has not been formally offered. The records of the case show, however, that
the passbook was formally offered as evidence.
[67]
Finally, on the discrediting of petitioner’s
defenses of denial and/or alibi, these defenses gain strength only if the
prosecution fails to meet the quantum of proof required to overcome the
constitutional presumption of innocence.[68] In the case at bar, however, the prosecution has
proven the guilt of petitioner beyond reasonable doubt.
WHEREFORE, the petition is DENIED and
the challenged decision of the Court of Appeals appealed from is AFFIRMED.
SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice
WE CONCUR:
LEONARDO A.
QUISUMBING
Associate Justice
Chairperson
|
ANTONIO T. CARPIO Associate Justice |
DANTE
O. TINGA Associate
Justice |
PRESBITERO J. VELASCO, JR.
Associate
Justice
ATTESTATION
I attest
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.
LEONARDO
A. QUISUMBING
Associate Justice
Chairperson
CERTIFICATION
Pursuant to
Article VIII, Section 13 of the Constitution, and the Division Chairperson’s
Attestation, 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.
REYNATO S. PUNO
Chief Justice
[1] Records, pp. 1b-2.
[2]
[3] Folder of TSN, pp. 110-114, 349-357.
[4]
[5] Records, pp. 181-182.
[6]
[7]
[8]
[9]
[10]
[11]
[12] CA rollo, p. 2.
[13] G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640, 653-658, where this Court provided for an intermediate review by the CA in cases when the penalty imposed is death, life imprisonment, or reclusion perpetua.
[14] CA rollo, p. 445.
[15]
[16]
[17]
[18]
[19]
[20]
[21] Rollo, pp. 3-65.
[22]
[23] G.R. No. 88670,
[24]
[25] Rollo, pp. 45-46.
[26] Vide RA No. 9346, Section 1.
[27] Rollo, pp.
27-28.
[28] Folder of TSN, p. 351.
[29]
[30]
[31]
[32] Records, pp. 167, 176.
[33]
[34]
[35]
[36]
[37]
[38]
[39] Vide
People v. Bagawe, G.R. Nos. 88515-16,
[40] People v. Sariol, G.R. No. 83809,
June 22, 1989, 174 SCRA 237, 243-244, citing People v.Boholst, G.R. No.
L-73008,
[41] People v. Ganguso, 320 Phil. 324, 340 (1995).
[42] Folder of TSN, pp. 184, 186-187.
[43] Supra note 23.
[44] Rollo, p. 46.
[45] Vide People v. So, 421 Phil. 929, 934,
943-944 (2001); People
v. Co, 315 Phil. 829, 835, 844-850 (1995).
[46] Rollo, p. 8.
[47] Vide
People v.
[48] G.R. No. 104044,
[49]
[50] Folder of TSN, p. 194.
[51] Rollo, p. 18.
[52]
[53] Records, pp. 175-176.
[54] Folder of TSN, pp. 8-9.
[55] People
v. Chiu, G.R. Nos. 142915-16,
[56] 401 Phil. 734 (2000).
[57]
[58] G.R. No.
107623,
[59]
[60] Folder of TSN, pp. 183-197.
[61] Vide
People v. Manalo, supra note
58, at 319.
[62] Rollo, pp. 56-64.
[63] Vide
People v. Gonzales, G.R. No. 105689,
[64] People v. Cheng Ho Chua,
364 Phil. 497, 514 (1999).
[65] Records, pp. 159-160.
[66]
[67]
[68] Vide
Cosep v. People, 352 Phil. 979, 988
(1998); People v. Niño, 352 Phil.
764, 772 (1998); People v. Labarias,
G.R. No. 87165, January 25, 1993, 217 SCRA 483, 488; People v. Bacalzo, G.R. No. 89811,
March 22, 1991, 195 SCRA 557, 563; People
v. Navoa, 227 Phil. 472, 492 (1986).