THIRD
DIVISION
|
RENE M.
FRANCISCO, [1]
Petitioner, - versus - PEOPLE OF
THE
Respondent. x - - - - - - - - - - - - - - - - - - - - - - - x OSCAR A. OJEDA,
Petitioner, -
versus – PEOPLE OF
THE Respondent.
|
|
G.
R. No. 177430 G.R. No. 178935 Present: YNARES-SANTIAGO, J., Chairperson, CHICO-NAZARIO, VELASCO, JR., NACHURA, and PERALTA, JJ. Promulgated: July 14, 2009 |
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - x
D E C
I S I O N
CHICO-NAZARIO, J.:
Assailed
before Us is the Decision[2] of
the Court of Appeals dated 13 April 2007 in CA-G.R. CR No. 28025 which affirmed
in toto the Decision[3] dated
16 July 2003 of the Regional Trial Court (RTC) of Manila, Branch 21, in Criminal
Case No. 00-186411, and its Resolution[4]
dated 6 July 2007 denying petitioner Oscar A. Ojeda’s Motion for
Reconsideration.
In
an Information dated
That on or about November 18, 1999,
in the City of Manila and within the jurisdiction of this Honorable Court, all
the above-named accused, with evident intent to defraud the government of
legitimate taxes accruing to it from imported articles, did then and there,
willfully, unlawfully and knowingly participate in and facilitate the
transportation, concealment, and possession of dutiable electronic equipment
and accessories with a domestic market value of P20,000,000.00 contained
in container van no. TTNU9201241, but which were declared in Formal Entry and
Revenue Declaration No. 118302 as assorted men’s and ladies’ accessories, all
of said accused knowing the same to have been imported contrary to law, to the damage
and prejudice of the Philippine Government.[5]
On
On
The
pre-trial conference was conducted and terminated on
The
prosecution presented the following witnesses: (1) Lt. Julius Agdeppa,[10] member
of Presidential Anti-Smuggling Task Force (PASTF) Aduana; (2) Atty. Eden Dandal,[11]
Special Assistant to the Director of Customs Intelligence and Investigation
Service (CIIS); and (3) Zenaida Lanaria,[12]
Acting Chief, Liquidation and Billing Division, Bureau of Customs (BOC).
The evidence for the prosecution
shows:
On
On
|
QUANTITY |
DESCRIPTION |
UNIT PRICE |
AMOUNT |
|
|
|
|
|
|
51 grs. |
Shirt |
@US$0.20/grs. |
US$10.20 |
|
50 grs. |
Blouse |
0.20/grs. |
10.00 |
|
100 sets |
Television |
0.30/set |
30.00 |
|
29 grs. |
Dress |
0.40/grs. |
11.60 |
|
30 grs. |
Jacket |
0.50/grs. |
15.00 |
|
80 sets |
Vcd |
0.20/set |
16.00 |
|
30 grs. |
Jumper |
0.50/grs. |
15.00 |
|
150 sets |
Vhs |
0.238/set |
35.70 |
|
30 grs. |
Skirt |
0.40/grs. |
12.00 |
|
1000 grs. |
blank tape |
0.05/grs. |
50.00 |
|
40 grs. |
Sandals |
0.20/grs. |
8.00 |
|
20 grs. |
Bags |
0.50/grs. |
10.00 |
|
30 sets |
Components |
0.40/grs. |
12.00 |
|
40 grs. |
Tights |
0.30/grs. |
12.00 |
|
100 sets |
Fishing rods |
2.50/set |
250.00 US$497.50[20] |
The Formal Entry and Internal Revenue
Declaration contained, among other things, the following entries: Exporter: PAWA Brothers Trading PTE, Ltd.; Importer:
Loxon Phils., Inc. P158,768.57;
Total assessment: P81,939.00.[21] The itemized contents of the container van were
enumerated in the inventory sheet[22]
prepared by PO1 Nestor Marvida, to which Atty. Eden Dandal and Lt. Agdeppa
agreed.
Per certification issued by Stanley
N. Villavicencio of the Valuation and Classification Division of the Bureau of
Customs, the domestic market value of the assorted electronic equipment
contained in the container van consigned to Loxon Phil., Inc. is P20,000,000.00.[23] Formal Entry and Internal Revenue Declaration
No. 118302 was assigned by Customs Operations Officer 5 (COO5) Oscar Ojeda to Customs
Operations Officer 3 (COO3) Rene Francisco for examination. Francisco recommended its continuous
processing without actual examination of the cargo, which Oscar Ojeda concurred
in. The entry with the attached
clearance from the CIIS monitoring team headed by Danilo Lintag was forwarded
to the cash division for payment. For
allegedly facilitating the release of said cargo, the three customs personnel
were charged with violation of Section 3601 of the Tariff and Customs Code of
the
Atty. Dandal testified that he knew
Oscar Ojeda, Danilo J. Lintag and Rene M. Francisco, they being his co-workers
at the Bureau of Customs. He did not
know PO3 Roberto Nadora. He disclosed that
he received a call from Gen. Calimlim of the PASTF Aduana requesting him to
witness the 100% examination of apprehended goods covered by Formal Entry and
Internal Revenue Declaration No. 118302 and consigned to Loxon Phils., Inc. He revealed that cargoes described as general
merchandise, those with alert orders and those coming from China, Hongkong,
Thailand and Singapore were usually subjected to 100% examination. He said the persons authorized to issue alert
orders and orders for 100% examination were the Director of CIIS, the Director
of Enforcement and Security Service, and the District Collector. With respect to the cargo involved in this
case which came from
Atty. Dandal explained that the
Bureau of Customs adopted a selectivity system called the ASYCUDA (Automated
System for Customs Data) Program to determine if the cargo was to be subjected
to 100% examination. In said program,
entries are classified into three lanes: (1) the green color lane, where the
entry is forwarded to the cash division for payment and immediate release of
cargo; (2) the yellow color lane, where only verification of documents is done
by the examiner; and (3) the red color lane, where the goods are subjected to
100% examination. He said that the cargo
involved was categorized as yellow, which means that document-only verification
is required. It is the Assessment
Section that reviews documents falling on the yellow lane. He explained that there are instances when
entries classified as yellow are subjected to 100% examination, such as (1)
when there is an Alert Order; or (2) when the value of the particular shipment
is “hit,” which means that the valuation is under question, and when the
declarations on the entry and the supporting documents themselves contradict
each other.[24] In these instances, the appraiser may either
increase the valuation or conduct a re-computation of the duties and taxes to
be paid or secure sample for valuation purposes. He added that it is impossible for a
fraudulent entry to pass the bureau without passing the intelligence detachment
assigned to each district, unless there is some sort of conspiracy. He revealed that Oscar Ojeda belonged to the
Assessment Office where importation documents mandatorily passed.
Atty. Dandal said he found “striking”
and “peculiar” the entries made in the documents regarding the subject
cargo. The Formal Entry and Internal
Revenue Declaration No. 118302 merely described the cargo as 450 cartons of
assorted men’s and ladies’ accessories.
It did not state the weight as is normally indicated in the Bill of
Lading, invoice and packing list. He
said that the weight of the shipment mentioned in the Bill of Lading (3,500 kg
or 3.5 tons) was excessive for 450 cartons of men’s and ladies’
accessories. He likewise said that the
quantity and valuation in the import declaration was very peculiar. He explained that there was no way to
determine the number of pieces of each men’s and ladies’ accessories and the
unit price of each. He found it almost
impossible also that the value of the containerized importation was only US$500.00. With all the electronic equipment and
appliances (30 sets of components worth only US$12.00, 150 sets of VHS worth only
US$35.00, and 100 sets of TV worth only US$30.00) declared in the invoice, the
importation should not only be subjected to 100% examination, but should be
alerted and the processing stopped by the examiners. The persons who acted on the particular entry
were COO3 R.M. Francisco, COO5 A. Ojeda, and Felicitacion de Luz, Acting
District Collector.
Atty. Dandal explained that Oscar Ojeda,
as COO5, received the findings of the examiner/appraiser. The COO5 or the principal examiner may also
request a 100% examination of the cargo.
In the cargo subject of this case, the assessment was based merely on
the documents, because when the entry was transmitted to the P39,000.00
to P159,000.00. He said Danilo
Lintag, who was assigned with the Office of the Deputy Commissioner, had no
authority to conduct 100% examination.
The goods, subject matter of the case, were, according to him,
absolutely misdeclared and claimed to be men’s and ladies’ accessories.
Zenaida Lanaria testified that in
November 1999, she was the Assistant Chief of the Liquidation and Billing
Division of the BOC. She explained that
the Liquidation and Billing Division was part of the processing of
importations. She said that importation
documents should pass her office. As
regards Formal Entry and Internal Revenue Declaration No. 118302, she said that
this document only passed the Collection Division and never reached her
division. She did not know why this
happened. It was only when she was subpoenaed
by the court that she learned of it.
For the defense, the following took
the stand: (1) PO3 Roberto Nadora,[25] assigned
at Jose Abad Santos Avenue Police Station 7, Western Police District; (2) Danilo
J. Lintag, Customs Agent, BOC;[26]
(3) Oscar Ojeda, Customs Examiner, BOC;[27]
(4) Ruel Tolentino, businessman and resident of Taguig, Metro Manila;[28]
(5) Atty. Domingo Leguiab, Assistant Chief, Appellate Division, Legal Service,
Office of the Commissioner, BOC;[29]
(6) Manuel Oktubre, businessman and resident of Malabon, Metro Manila;[30]
and (7) Renato M. Francisco, Acting Customs Operations Officer 3 (COO3),
Special Warehousing Assessment Unit, BOC.[31]
PO3 Nadora denied the charge against
him. He testified that on
Mr. Lintag denied participating in
the crime charged. He testified that as
a Customs Agent, it was his duty to supervise and review all port entries made
by agents, to submit a report with proper recommendation, and to analyze
reports of agents regarding violations of the Tariff and Customs Code and the rules
and regulations pertaining thereto. It
was also his duty to conduct and witness a 100% examination of shipments consigned
to or handled by certain individuals regardless of whether they were classified
as green, yellow or red under the ASYCUDA Program.[32]
At around
Oscar Ojeda, denying the charge
against him, testified that on
As a former examiner/appraiser for
thirteen years prior to his appointment as principal appraiser, Ojeda said he
was very familiar with the duties of an examiner. It is part of an examiner’s job to examine
documents covering importations and the actual objects imported. Even without the superior’s permission, an examiner
can conduct actual or physical examination.
It is the initiative of the examiner to perform actual examination if he
finds it necessary in the face of the document, even if there is no alert
order. Ojeda claimed that the principal
examiner could not perform an actual examination unlike the examiner. He further explained that once the principal
examiner affixed his signature approving all the documents that had been
recommended by the examiner, the responsibility for the documents would be
assumed by the principal examiner.
Ojeda said he found the contents and
their values, as well as the total worth of the importation, to be
unusual. Despite all these, he did not
conduct 100% examination because there was a voluntary upgrading by the
importer. The value of the invoice was
upgraded by 1,350%.
When confronted with his
counter-affidavit, he admitted that the following was stated therein: “In fact,
Mr. Danilo Lintag even affixed his signature on his report and attached the
same to the other pertinent documents as a sign of clearance on his part.” He said that when the clearance reached his
table, the signatures of his examiner and of Lintag were already there.
Mr. Ruel Tolentino denied any
participation in the alleged smuggling and said that he had no intention to
defraud the government. He testified
that he was a licensed cargo forwarder (Jara Cargo Forwarders). As such, he hauled cargo from any place in
Metro Manila to any point in
Mr. Tolentino explained that his only
evidence that Loxon Phils., Inc. was existing was what Paolo Gonzales told
him. He added that if the cargo would be
released, Paolo Gonzales would give him 2% of the redemption value.
Atty. Domingo Leguiab testified on
the events that happened involving the supposed shipment of Loxon Phils.,
Inc. He said the shipment was placed
under Warrant of Seizure and Detention on
Atty. Leguiab said that on record Loxon
Phils., Inc. was the importer/consignee.
The Law Division did not go to the extent of determining whether said
corporation was a registered importer or not.
He had no knowledge that the President of Loxon Phils., Inc. had brought
a disclaimer that it was the importer of the forfeited goods. He recalled that the goods were auctioned off
and the redemption did not push through.
Manuel Oktubre testified that he knew
Ruel Tolentino. He often saw the latter
at the MICP, which was a cargo forwarder.
He said he saw Tolentino on
Renato M. Francisco testified that as
COO3, the equivalent of customs examiner or appraiser, he was tasked to examine,
classify and appraise importations assigned to him at the Formal Entry Division,
BOC. On
The usual procedure, he claimed, when
an entry was assigned to him, began with the consignee/owner of the importation
paying the bank the duties and taxes on the importation based on the invoice. Thereafter, what followed was the filing of
the entry at the encoding center (ASYCUDA), which was manned by non-customs
employees. When he received the entry,
he examined the entry and all its supporting documents (Bill of Lading, Invoice
and Packing List). He evaluated the
entry to check whether there were discrepancies or unnecessary documents
attached. In the subject importation, he
found that the invoice was voluntarily upgraded to 1,350%, presumably by the
consignee that was approved by the bank.
He found the entry and the documents in order. He did not find the name of Ruel Tolentino on
the face of the entry. The description
of the entry was 450 cartons of assorted men’s and ladies’ accessories. Upon document examination, he went to the
computer to “trigger” the entry. From
the computer, he found out that the entry under the ASYCUDA was categorized as
“yellow.” He explained that there were
three classifications under the ASYCUDA – green, yellow and red. Green meant that the entry went direct to the
cash division for payment; yellow meant document-only examination was required;
red meant that 100% physical examination of the entry was required. One hundred (100%) percent examination meant
that the contents of the importation must be opened. This entry consigned to Loxon Phils., Inc. was
classified as “yellow.” After consulting
the computer, he made his findings at the back of the entry.
He said it was the first time he
encountered a voluntary upgrading of 1,350% and found the same irregular. However, since the bank approved the entry
and was accepted by the Entry Encoding System, he considered it regular. He based his action on the approval of the
bank. He merely made a documentary
examination of the entry because there was no alert order or hold order on the
entry. He added that the entry fell on
the yellow lane, and there was no derogatory information regarding the
same. He claimed that it was not
required of him to conduct physical examination, because the entry was
classified as yellow. He recommended the
continuous processing of the entry and the release of the shipment. Under the entry, the customs duties and taxes
paid amounted to P7,213.75. His
findings with respect to the duties and taxes amounted to P81,781.00. After writing his findings at the back of the
entry, he forwarded or gave it to his superior, Oscar Ojeda. The former’s responsibility ended there. Ojeda consulted the computer and triggered
the entry. The latter then stamped the
word “yellow” at the back of the entry and signed it together with the final
assessment notice. The entry was
forwarded to the Cash Division.
Francisco said he had no knowledge of
or participation in the crime charged.
His only participation as regards the entry was performing the usual
procedures in the processing of documents.
It was only in court that he came to know of Ruel Tolentino and PO3
Nadora.
He admitted that his recommendation
for the continuous processing of the entry was contained in an Officer on Case
Report dated
On
WHEREFORE,
premises considered, the Court finds accused RUEL “JAYAR” TOLENTINO, OSCAR
OJEDA, RENE M. FRANCISCO, DANILO LINTAG and PO3 ROBERTO NADORA GUILTY beyond
reasonable doubt of the crime charged and are hereby sentenced to suffer the
penalty of FOUR (4) YEARS and ONE (1) DAY as minimum to SIX (6) YEARS of
prision correccional as maximum and to pay fine of P8,000.00 each
without subsidiary imprisonment in case of insolvency and to pay the costs.
Accordingly, the bonds posted for the provisional liberty of the accused are hereby CANCELLED.
It appearing that accused ANTONIO CAAMIC, MICHAEL UMAGAT and AMADO GONZALES have not been apprehended to date, let warrant be issued for their arrest and let the case against them be ARCHIVED to be reinstated upon their apprehension.[36]
The trial court gave credence to the
testimonies of the prosecution witnesses, especially the testimony of Lt.
Julius Agdeppa, vis-ŕ-vis the denials
of all the accused. No improper motive
to testify falsely against the accused was found on the part of the prosecution
witnesses.
The trial court convicted Ruel
Toletino for being the owner of the cargo subject of this case. As to PO3 Roberto Nadora, he was found guilty
of escorting the shipment while in transit to the supposed consignee. His defense that his assistance was merely
sought by Umagat and Gonzales to look for the container van was not given
weight because of the declaration of Lt. Agdeppa that Francisco was pointed to
as the escort of the cargo truck and was present when the same was apprehended
in Manila.
Renato Francisco, Oscar Ojeda and
Danilo Lintag were held responsible for omitting certain procedural steps in
the processing of importation subject of this case. According to Zenaida Lanaria, Acting Chief,
Liquidation and Billing Division, BOC, importation documents should pass through
her office. In this case, Formal Entry
and Internal Revenue Declaration No. 118302 only passed the Collection Division
and never reached her division.
Francisco’s and Ojeda’s claims that they merely followed procedure when
they subjected the cargo involved to documentary examination and not to 100%
actual physical examination were not accepted by the trial court in view of the
presence of discrepancies and irregularities on the face of the documents
relative to Formal Entry and Internal Revenue Declaration No. 118302. Lintag’s contention that the documents
involved did not pass through his office was not believed by the trial
court. This contention, the trial court
said, was belied by the Memorandum for the District Collector of Customs dated
The trial court expounded:
This court need not be a computer expert as to clearly detect whether or not a kind of manipulation must have intervened into the procedure. It may not be mere suspicion but simple curiosity that would drive anyone to ask and find out whether the invoice is credible or not. To the plain understanding of the Court, it is basic in any computer system, which is Asy[c]uda program being adopted by the Bureau of Customs as mentioned in their testimonies pertaining to certain documents covering importations. Common sense also would dictate that the computer can not think and act like the operator. It is still the user who could possibly make it operate in the manner said user would like to produce the desired result. If you feed it garbage facts or data it will in turn emit the same input/output following the “garbage in, garbage out” principle in computerization. If the user wants the document to fall under a certain color code like yellow, red or green, it is possible because the user knows to come about it.
If the entry and invoice stated items at random (mostly men’s and ladies’ accessories) inserting some electronics appliances and devices such as TV, blank tape, components VCD and VHS among them, the user can command the color code desired for it in the computer as mere yellow (code indicating the items in the document which does not require 100% examination) without even regard for the pricing, quantifying, etc. The examiners stressed in all the procedures corresponding to each and every phase of their duties and responsibilities that, they have no hand in deviation or omission that would occur in the course of the performance of each task or work assigned to persons involved in this case. Any error or defect along this line of function can easily be attributed by them to the computer, to the program or system adopted. What they wish to actually show to this Court is that the Bureau of Customs procedure have been computerized so it is following a system that could facilitate matters without much meticulous and rigid inspection or physical examination as it used to be when the system was not yet computerized.
Mere browsing of the documents in question if common sense is employed vice the computer, the listed items considered men’s and ladies’ accessories therein could have aroused the BOC officials and personnel thinking why there were insertions of items other then men’s and ladies’ accessories and the quantities and pricing of which could also raise their eyebrows over the pieces of declared items for being not commensurate to more realistic unit price? How about the real men’s and ladies’ accessories? Are they relief goods or items for charity or donation that the pricing thereof are so low or cheap? Is the importer intending to re-s[ell] these goods?
Now what about the computer if they really rely on it in the Bureau of Customs? Does it totally replace layman’s visual determination of assessing such goods or items? Would not accused be but tempted to make even a mere glance of them to find out what the cartons or packages contain as to even accidentally discovering that contrary to what had been declared in the invoice. They are not mere men’s and ladies’ accessories but appliances and electronic items. Had the accused been more prudent and attentive enough in the course of their assigned task no other work force or imported goods, being transported for delivery to the consignee without being assessed of the corresponding duties and taxes.
The irregular transaction could not have been possible without any form of collusion among the accused who handled the processing of the documents. x x x. Had they efficiently checked/verified the entry and invoice, the shipment could not have been released without payment of correct duties and taxes.[38]
The trial court found that the
accused participated directly and constructively in the act charged for which they
were held criminally liable.
On
During the pendency of the appeal
with the Court of Appeals, Lintag died.[41]
On
Petitioners Francisco and Ojeda are
now before us via petitions for review respectively docketed as G.R. No. 177430 and No. 178935. Per resolution of the Court, the cases were
ordered consolidated.[43]
Petitioner
Francisco cites the following grounds:
I
WHETHER OR NOT CONSPIRACY IS ALLEGED IN THE
INFORMATION OR PROVED DURING TRIAL.
II
WHETHER OR NOT THE GUILT OF ACCUSED-APELLANT
RENE M. FRANCISCO WAS PROVED BEYOND REASONABLE DOUBT.
III
THE DECISION OF BOTH THE COURT OF APPEALS AND
THE REGIONAL TRIAL COURT VIOLATED SECTION 14, ARTICLE VIII OF THE 1987
CONSTITUTION.
Petitioner Ojeda raises the following
issues:
WHETHER OR NOT THE COURT OF APPEALS ERRED IN
FINDING PETITIONER OJEDA AND HIS CO-ACCUSED LIABLE FOR CONSPIRACY IN THE
COMMISSION OF THE OFFENSE CHARGED DESPITE THE ABSENCE OF ANY ALLEGATION OF
CONSPIRACY IN THE INFORMATION;
WHETHER OR NOT, IN THE ABSENCE OF CONSPIRACY
AND/OR ANY ALLEGATION OF CONSPIRACY IN THE INFORMATION, THE COURT OF APPEALS
ERRED IN FINDING PETITIONER GUILTY BEYOND REASONABLE DOUBT OF THE OFFENSE
CHARGED; and
WHETHER OR NOT THE COURT OF APPEALS ERRED IN
FINDING CONSPIRACY IN THE COMMISSION OF THE OFFENSE CHARGED.
The issues raised by petitioners can
be limited to:
(1) Was conspiracy properly alleged in
the information?
(2) If properly alleged, was
conspiracy proven beyond reasonable doubt?
(3) Was the guilt of petitioners proven
beyond reasonable doubt?
A conspiracy exists when two or more
persons come to an agreement concerning the commission of a felony and decide
to commit it.[44] In our jurisdiction, conspiracy can be
alleged in the Information as a mode of committing a crime or it may be alleged
as constitutive of the crime itself.[45]
When conspiracy is alleged as a crime
in itself,[46]
the sufficiency of the allegations in the Information charging the offense is
governed by Section 6,[47]
Rule 110 of the Revised Rules of Criminal Procedure. In other words, the act of conspiring and all
the elements of said crime must be set forth in the complaint or information.[48] The requirement of alleging the elements of a
crime in the information is to inform the accused of the nature of the
accusation against him so as to enable him to suitably prepare his defense.[49]
The requirements on sufficiency of
allegations are different when conspiracy is not charged as a crime in itself
but only as the mode of committing the crime.
There is less necessity of reciting its particularities in the
Information, because conspiracy is not the gravamen of the offense
charged. Conspiracy is significant only
because it changes the criminal liability of all the accused and makes them
answerable as co-principals regardless of the degree of their participation in
the crime. The liability of the
conspirators is collective, and each participant will be equally responsible
for the acts of others, for the act of one is the act of all.[50]
The Court in Estrada v. Sandiganbayan,[51]
citing People v. Quitlong,[52]described
how conspiracy as the mode of committing the offense should be alleged in the
information, viz:
In embodying the essential elements of the crime charged, the information must set forth the facts and circumstances that have a bearing on the culpability and liability of the accused so that the accused can properly prepare for and undertake his defense. One such fact or circumstance in a complaint against two or more accused persons is that of conspiracy. Quite unlike the omission of an ordinary recital of fact which, if not excepted from or objected to during trial, may be corrected or supplied by competent proof, an allegation, however, of conspiracy, or one that would impute criminal liability to an accused for the act of another or others, is indispensable in order to hold such person, regardless of the nature and extent of his own participation, equally guilty with the other or others in the commission of the crime. Where conspiracy exists and can rightly be appreciated, the individual acts done to perpetrate the felony becomes of secondary importance, the act of one being imputable to all the others [People v. Ilano, 313 SCRA 442]. Verily, an accused must know from the information whether he faces a criminal responsibility not only for his acts but also for the acts of his co-accused as well.
A conspiracy indictment need not, of course, aver all the components of conspiracy or allege all the details thereof, like the part that each of the parties therein have performed, the evidence proving the common design or the facts connecting all the accused with one another in the web of the conspiracy. Neither is it necessary to describe conspiracy with the same degree of particularity required in describing a substantive offense. It is enough that the indictment contains a statement of the facts relied upon to be constitutive of the offense in ordinary and concise language, with as much certainty as the nature of the case will admit, in a manner that can enable a person of common understanding to know what is intended, and with such precision that the accused may plead his acquittal or conviction to a subsequent indictment based on the same facts. It is said, generally, that an indictment may be held sufficient "if it follows the words of the statute and reasonably informs the accused of the character of the offense he is charged with conspiring to commit, or, following the language of the statute, contains a sufficient statement of an overt act to effect the object of the conspiracy, or alleges both the conspiracy and the contemplated crime in the language of the respective statutes defining them [15A C.J.S. 842-844].
x x x x
x x x Conspiracy arises when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Conspiracy comes to life at the very instant the plotters agree, expressly or impliedly, to commit the felony and forthwith to actually pursue it. Verily, the information must state that the accused have confederated to commit the crime or that there has been a community of design, a unity of purpose or an agreement to commit the felony among the accused. Such an allegation, in the absence of the usual usage of the words "conspired" or "confederated" or the phrase "acting in conspiracy," must aptly appear in the information in the form of definitive acts constituting conspiracy. In fine, the agreement to commit the crime, the unity of purpose or the community of design among the accused must be conveyed such as either by the use of the term "conspire" or its derivatives and synonyms or by allegations of basic facts constituting the conspiracy. Conspiracy must be alleged, not just inferred, in the information on which basis an accused can aptly enter his plea, a matter that is not to be confused with or likened to the adequacy of evidence that may be required to prove it. In establishing conspiracy when properly alleged, the evidence to support it need not necessarily be shown by direct proof but may be inferred from shown acts and conduct of the accused. (Emphases supplied.)
From the foregoing discussion, it is sufficient
to allege conspiracy as a mode of the commission of an offense in either of the
following manners: (1) by the use of the word "conspire," or its
derivatives or synonyms, such as confederate, connive, collude, etc; or (2) by
allegations of basic facts constituting the conspiracy in a manner that a
person of common understanding would know what is intended, and with such
precision as would enable the accused to competently enter a plea to a
subsequent indictment based on the same facts.[53]
In the case before us, petitioners
contend that the information did not contain any allegation of conspiracy,
either by the use of the words conspire or its derivatives and synonyms, or by
allegations of basic facts constituting conspiracy that will make them liable
for the acts of their co-accused.
We find this contention untenable.
It is settled that conspiracy must be
alleged, not merely inferred, in the information.[54] A look at the information readily shows that
the words “conspiracy,” “conspired” or “in conspiracy with” does not appear in
the information. This, however, does not
necessarily mean that the absence of these words would signify that conspiracy
was not alleged in the information. After carefully reading the information, we
find that conspiracy was properly alleged in the information. The accusatory portion reads in part: “all
the above-named accused, with evident intent to defraud the government of
legitimate taxes accruing to it from imported articles, did then and there,
willfully, unlawfully and knowingly participate in and facilitate the
transportation, concealment, and possession of dutiable electronic equipment
and accessories with a domestic market value of P20,000,000.00
contained in container van no. TTNU9201241, but which were declared in Formal
Entry and Revenue Declaration No. 118302 as assorted men’s and ladies’
accessories x x x.” We find the phrase
“participate in and facilitate” to be a clear and definite allegation of
conspiracy sufficient for those being accused to competently enter a plea and
to make a proper defense.
Both Rene Francisco and Oscar Ojeda were
charged because they assisted in and facilitated the release of the subject
cargo without the payment of the proper duties and taxes due the government by
omitting certain acts in light of glaring discrepancies and suspicious entries
present in the documents involved in the subject importation (Formal Entry and
Internal Revenue Declaration No. 118302, invoice, bill of lading and packing
list).
Francisco stresses that his guilt has
not been proved beyond reasonable. He contends
that he faithfully, carefully and regularly exercised his official duties as
customs examiner in accordance with the applicable processes and procedure of
his office. He further contends that the
prosecution’s principal witness, Lt. Agdeppa, absolved him of any involvement
in the crime charged by saying that the former was not present when the cargo
was apprehended, and that he did not know how Francisco’s name was written in Formal
Entry and Internal Revenue Declaration No. 118302. He adds that the decisions of both lower
courts violated Section 14, Article VIII[55]
of the 1987 Constitution, when they failed to name or identify who among the
accused allegedly manipulated the computer system.
We are not persuaded that Francisco
faithfully and regularly performed his duties as examiner as regards Formal
Entry and Internal Revenue Declaration No. 118302. His total reliance on the ASYCUDA (Automated
System for Customs Data) Program employed at the BOC to determine if a cargo is
to be subjected to 100% physical examination will not exonerate him. The fact that the subject importation was
classified as “yellow” (examination of documents only) did not mean he could not
and should not conduct 100% physical examination of the cargo in view of the
glaring discrepancies and suspicious entries in the documents involved. The glaring discrepancies and suspicious
entries include:
1. the Bill of Lading shows that the weight of the shipment is 3,500 kg. or 3.5 tons while the declared quantity of the importation was 450 cartons of assorted men’s and ladies’ accessories. According to Atty. Dandal, 3.5 tons is too heavy for 450 cartons of men’s and ladies’ accessories;
2. the declaration of the quantity in the invoice – the unit of measurement is gross but the invoice does not specify the number of items per gross;
3. the declaration of the prices in the invoice has no basis, e.g., the declaration of 20 centavos per gross has no basis for the valuation, it does not say how many pieces of t-shirts or blouses are worth 20 centavos;
4. the amount of the importation which was merely $500 is unusually low for a containerized importation;
5. the voluntary upgrading by 1350% is unusually high.[56]
By merely looking at Formal Entry and
Internal Revenue Declaration No. 118302 and the invoice, one can readily see
the discrepancy between what are declared in the former and in the latter. In Formal Entry and Internal Revenue
Declaration No. 118302, what were mentioned were men’s and ladies’ accessories.
However, in the invoice, electronic equipment and appliances such as VHS, Betamax,
television and the like were stated.
Despite all these questionable entries, Francisco recommended the
continuous processing of the importation documents, conducting merely a
document examination and not a 100% actual physical examination of the cargo. How can he turn a blind eye to all these
obvious discrepancies? His failure to
perform a 100% physical examination of the cargo, under the circumstances, is
inexcusable and illicit, amounting to non-performance of his duty.
Francisco’s
contention that Lt. Agdeppa cleared him by saying that the former was not
present when the cargo was apprehended, and that the latter did not know how Francisco’s
name was written in Formal Entry and Internal Revenue Declaration No. 118302
deserves scant consideration. Francisco
was included in the charge, not because he was present when the container van
was apprehended, but because he recommended the continuous processing of the
subject importation without subjecting the same to 100% actual physical
examination despite the clear disagreement of the entries in the importation
documents. The lack of knowledge on the
part of Lt. Agdeppa as to how Francisco’s name was written in Formal Entry and
Internal Revenue Declaration No. 118302 is so trivial and does not mean that the
latter did not participate in the anomalous processing of the subject
importation. From the testimonies of
Atty. Dandal, Ojeda and from Francisco’s own testimony, it was shown that the latter
took part in the processing of the subject importation and that his name
appeared on the dorsal portion of Formal Entry and Internal Revenue Declaration
No. 118302.
We
did not find any violation of Section 14, Article VIII of the 1987
Constitution. Crucial here were the
actions of the accused Customs employees when they did not perform a 100%
physical examination of the cargo despite the glaring discrepancies and
suspicious entries in the documents involved.
In fact, they issued a Memorandum for the District Collector of Customs
dated
Ojeda argues that he cannot he held
responsible for affixing his signature to the documents involved and for not
ordering the 100% physical examination of the cargo because he relied on the
recommendation of his subordinate. In
support thereof, he alleges (1) that Francisco failed to report the alleged
glaring irregularities on the documents, hence, he did not examine the
documents and relied on the recommendation of Francisco; (2) that he performed
his duties in good faith; (3) that the suspicion of irregularity was
obliterated by the voluntary upgrading of the value of the importation to 1,350%;
and (4) that a clearance was issued by Lintag for the release of the cargo.
His arguments fail to convince us.
We find it surprising why he raises
as his defense the alleged failure of Francisco to report the glaring
irregularities on the documents. The
very same documents checked by Francisco are in Ojeda’s hands. Why is there a need to report any discrepancy
if the latter himself can easily see the glaring discrepancies? From the entry and the invoice alone, one can
definitely see something strange and irregular.
His claim of good faith will not stand.
As principal examiner and the superior of Francisco, his duty was to carefully
review the evaluation made by his subordinate.
This, he miserably failed to do.
On the face of the documents, there were admittedly glaring
discrepancies and suspicious entries that should have alerted him. But despite all these, he claims he merely
approved what was recommended by Francisco – only document verification without
100% actual physical examination.
His contention that the suspicion of
irregularity was obliterated by the voluntary upgrading of the price (of the
importation) by 1350% is tenuous. The
upgrading by 1350% did not obliterate but heightened plenty-fold the suspicion of
irregularity. As an examiner for thirteen
years before becoming a principal examiner, it is not believable for a person
having so much experience not to know that there was something wrong with the
importation. We agree with the Court of
Appeals when it says:
Regardless of the alleged voluntary upgrading, the verity alone that the prices of the declared items were grossly low indicated by itself, an irregularity. Verily, the high voluntary upgrading should have put the Appellants on inquiry. Even Appellant RENE M. FRANCISCO (hereinafter Appellant FRANCISCO) admitted in his testimony that it was his first time to come across such a high voluntary upgrading and that it was unusual and irregular. Appellant FRANCISCO conceded that the bank merely accepts payment. In view of this admission, the fact that the voluntary upgrading was approved by the bank is irrelevant and immaterial to the question of the regularity or lack of it of the valuation of the cargo.
Moreover, it was not just the prices which rendered the invoice as suspect and incredible on its face. The presence of electronic items in the list of what was supposed to be just 450 cartons of men’s and ladies’ accessories, inter alia, should have alerted the examiner of the existence of an irregularity.[57]
The
approval/signature of Lintag (in the Memorandum for the District Collector of
Customs dated
Ojeda
cites Macadangdang v. Sandiganbayan,[58] Arias
v. Sandiganbayan,[59] De
la Peńa v. Sandiganbayan[60]
and Magsuci v. Sandiganbayan[61]
to justify his reliance on the recommendation of his subordinate and on the
“yellow” classification of the ASYCUDA (Automated System for Customs Data)
Program.
The
cited cases do not apply to the instant case.
The circumstances obtaining therein are different from the facts of the
present case. In Macadangdang,
the petitioner had no authority or duty to go beyond what appeared on the face
of the documents. In the case before us,
Ojeda has the authority to go beyond the documents if on the face thereof
appear irregularities. Ojeda cannot also
invoke Arias because his participation in the instant case is not
limited to affixing his signature to a transaction. In Arias,
the participation of the petitioner therein was limited to his signing on the
document. In the instant case, Ojeda consulted
the computer and he himself stamped the word “yellow” at the dorsal portion of Formal
Entry and Internal Revenue Declaration No. 118302. De la Pena and Magsuci cannot apply
because in said cases, this Court found the accused therein negligent of their
duties. In the case before us, we find
that the action or inaction of Francisco, Ojeda and Lintag was not the result
of negligence, but was intentionally or deliberately done.
Conspiracy as a basis for conviction
must rest on nothing less than a moral certainty.[62] While conspiracy need not be established by
direct evidence, it is, nonetheless, required that to be proved by clear and
convincing evidence by showing a series of acts done by each of the accused in
concert and in pursuance of a common unlawful purpose.[63]
There was no direct evidence showing
that all the accused came together and planned the crime charged. However, it is clear that their acts were in
pursuance of one common criminal objective.
They wanted to evade the payment of correct duties and taxes due the
government. The failure of Francisco,
Ojeda and Lintag to order a 100% examination of the subject importation, in
spite of the glaring discrepancies and suspicious entries in the documents
involved, without any doubt, facilitated the release of the importation
involved by making it appear that said importation was legally done. Allowing the subject cargo to pass through
Customs without a hitch clearly points to a conspiracy between and among all
the accused. Their individual
participation has been duly established.
Since conspiracy has been proved beyond reasonable doubt, all the
conspirators, regardless of their degree of participation, are criminally
liable for the crime charged and proved – the act of one is the act of all.[64]
Was the crime of smuggling committed
in this case?
Smuggling is committed by any person
who (1) fraudulently imports or brings into the Philippines any article
contrary to law; (2) assists in so doing any article contrary to law; or (3)
receives, conceals, buys, sells or in any manner facilitates the
transportation, concealment or sale of such goods after importation, knowing
the same to have been imported contrary to law.[65]
Article 3601 of the Tariff and
Customs Code of the
SECTION 3601. Unlawful Importation. — Any person who shall fraudulently import or bring into the Philippines, or assist in so doing, any article, contrary to law, or shall receive, conceal, buy, sell, or in any manner facilitate the transportation, concealment, or sale of such article after importation, knowing the same to have been imported contrary to law, shall be guilty of smuggling and shall be punished with:
1. A fine of not less than fifty pesos nor more than two hundred pesos and imprisonment of not less than five days nor more than twenty days, if the appraised value, to be determined in the manner prescribed under this Code, including duties and taxes, of the article unlawfully imported does not exceed twenty-five pesos;
2. A fine of not less than eight hundred pesos nor more than five thousand pesos and imprisonment of not less than six months and one day nor more than four years, if the appraised value, to be determined in the manner prescribed under this Code, including duties and taxes, of the article unlawfully imported exceeds twenty-five pesos but does not exceed fifty thousand pesos;
3. A fine of not less than six thousand pesos nor more than eight thousand pesos and imprisonment of not less than five years and one day nor more than eight years, if the appraised value, to be determined in the manner prescribed under this Code, including duties and taxes, of the article unlawfully imported is more than fifty thousand pesos but does not exceed one hundred fifty thousand pesos;
4. A fine of not less than eight thousand pesos nor more than ten thousand pesos and imprisonment of not less than eight years and one day nor more than twelve years, if the appraised value, to be determined in the manner prescribed under this Code, including duties and taxes, of the article unlawfully imported exceeds one hundred fifty thousand pesos;
5. The penalty of prison may or shall be imposed when the crime of serious physical injuries shall have been committed and the penalty of reclusion perpetua to death shall be imposed when the crime of homicide shall have been committed by reason or on the occasion of the unlawful importation.
In applying the above scale of penalties, if the offender is an alien and the prescribed penalty is not death, he shall be deported after serving the sentence without further proceedings for deportation; if the offender is a government official or employee, the penalty shall be the maximum as hereinabove prescribed and the offender shall suffer an additional penalty of perpetual disqualification from public office, to vote and to participate in any public election.
When, upon trial for violation of this section, the defendant is shown to have had possession of the article in question, possession shall be deemed sufficient evidence to authorize conviction unless the defendant shall explain the possession to the satisfaction of the court: Provided, however, That payment of the tax due after apprehension shall not constitute a valid defense in any prosecution under this section.
There
is no doubt that smuggling was committed in this case. The collective evidence on record shows that
the Francisco, Ojeda and Lintag assisted in the unlawful importation of
dutiable articles by facilitating their release from the Bureau of Customs without
payment of proper duties and taxes. Having
the power to order the physical examination of the subject importation, they
intentionally did not do so despite the glaring irregularities found on the
face of the documents (Formal Entry and Internal Revenue Declaration No. 118302,
Invoice No. LPI/99-500 and Bill of Lading).
They helped conceal the true nature of the cargo. Thereafter, the cargo, which had the appearance
of having been legally imported through their help, was removed from customs
premises and was being transported to an undisclosed location. Unfortunately for all the accused, said cargo,
which was being guarded and escorted by PO3 Nadora, was intercepted by Presidential
Anti-Smuggling Task Force (PASTF) Aduana.
We
agree with the Court of Appeals when it says:
In the instant case, the web of conspiracy covered the acts of the Appellants who facilitated the release of the subject importation without subjecting it to 100% physical examination, thus, preventing the discovery of the illegal importation. The other accused i.e. PO3 ROBERTO NADORA, ROEL TOLENTINO as well as ANTONIO CAAMIC, MICHAEL UMAGAT and AMADO GONZALES participated in the transportation of the subject importation and helped secure the same.[66]
The
Court notes that accused Danilo J. Lintag died during the pendency of his
appeal before the Court of Appeals.
Thus, pursuant to People v.
Bayotas,[67] wherein
we ruled that the death of the accused pending appeal of his conviction
extinguishes his criminal liability as well as the civil liability based solely
thereon, the appeal of the late Danilo J. Lintag before the Court of Appeals is
dismissed.
We
now go to the penalties imposed on Francisco and Ojeda. The trial court, as affirmed by the Court of
Appeals, imposed on each of them a fine of P8,000.00 and an imprisonment
of four (4) years and one (1) day, as minimum to six (6) years as maximum.
Under
Number 4 of Article 3601 of the TCCP, if the appraised value, including the duties
and taxes, of the article illegally imported exceeds one hundred fifty thousand
pesos, the person liable shall be punished with a fine of not less than eight
thousand pesos nor more than ten thousand pesos and imprisonment of not less
than eight (8) years and one (1) day nor more than twelve (12) years. In the instant case, the domestic value of
the subject importation is P20,000,000.00.[68]
Under
the Indeterminate Sentence Law, if the offense is punished by a special law, the
court shall sentence the accused to an indeterminate sentence, the maximum term
of which shall not exceed the maximum fixed by law and the minimum shall not be
less than the minimum term prescribed by the same.[69] Applying said provision of law, the trial
court failed to impose the correct penalty of imprisonment. It imposed a penalty of imprisonment the
minimum of which was below that prescribed by the law. To correct this error, we therefore increase
the same to eight (8) years and one (1) day, as minimum, to twelve (12) years,
as maximum. This applies only to petitioners
Francisco and Ojeda. As to accused
Tolentino and PO3 Nadora, we can no longer modify the penalty imposed on them
because the decision of the trial court is already final.
WHEREFORE, premises considered, the
decision of the Court of Appeals dated 13 April 2007 in CA-G.R. CR No. 28025 is
hereby AFFIRMED with the MODIFICATION that Rene M. Francisco and
Oscar A. Ojeda are each sentenced to suffer the indeterminate penalty of eight
(8) years and one (1) day, as minimum, to twelve (12) years, as maximum.
As
to accused Danilo J. Lintag, his criminal liability and the civil liability
based solely on the act complained of, are extinguished. His appeal before the Court of Appeals is
dismissed.
SO ORDERED.
|
|
MINITA V. CHICO-NAZARIOAssociate Justice |
WE
CONCUR:
Associate Justice
Chairperson
PRESBITERO J. VELASCO, JR.
Associate Justice |
ANTONIO
EDUARDO B. NACHURA Associate Justice |
|
|
|
DIOSDADO M. PERALTAAssociate
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.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson,
Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII
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’s Division.
REYNATO S.
PUNO
Chief Justice
[1] Mentioned as Renato M. Francisco in the TSN.
[2] Penned by Associate Justice Myrna Dimaranan Vidal with Associate Justices Jose L. Sabio, Jr. and Jose C. Reyes, Jr., concurring. CA rollo, pp. 325-344.
[3] Records, Vol. 2, pp. 138-140.
[4] CA rollo, pp. 417-418.
[5] Records, Vol. 1, p. 2.
[6]
[7]
[8]
[9]
[10] TSN,
[11] TSN,
[12] TSN,
[13] Exh. A.
[14] Exh. B.
[15] TSN,
[16]
[17]
[18] Exh. A; Records, Vol. 1, pp. 35-36; Vol. 2, p. 458.
[19] Records, Vol. 1, p. 37.
[20]
[21] Exh. A; Records, Vol. 1, p. 35.
[22] Exhs. D-D-3; Records, Vol. 2, pp. 513-516.
[23] Records, Vol. 1, p. 5.
[24] TSN,
[25] TSN,
[26] TSN, 20 May 2002.
[27] TSN,
[28] TSN,
[29] TSN,
[30] TSN,
[31] TSN,
[32] Memorandum dated
[33] Exh. A.
[34] See Exh. N, pars. 5 and 7.
[35] Exh. M; Records, p. 32.
[36] CA rollo, p. 64.
[37] Exh. M; Records, p. pp. 32 and 77.
[38] CA rollo, pp. 60-61.
[39] Records, Vol. 2, pp. 754-755.
[40]
[41] Certificate of Death; CA rollo, p. 322.
[42] CA rollo, pp. 378-393.
[43] Rollo (G.R. No. 177430), p. 114.
[44] Article 8, Revised Penal Code.
[45] Estrada v. Sandiganbayan, 427 Phil. 820, 854 (2002).
[46] Examples of conspiracies constituting the crime itself under the Revised Penal Code are: conspiracy to commit treason (Art. 115), coup d’etat, rebellion or insurrection (Art. 136) and sedition (Article 141).
[47] Sec. 6. Sufficiency of complaint or information. – A complaint or information is sufficient if it states the name of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed.
[48] Estrada v. Sandiganbayan, supra note 45.
[49] People
v. Dimaano, G.R. No. 168168,
[50] Estrada v. Sandiganbayan, supra note 45.
[51] Id.
[52] 354
Phil. 372, 388-390 (1998).
[53] Id.
[54] Garcia v. Court of Appeals, 420 Phil. 25, 35 (2001).
[55] Section 14. No decision shall be rendered by any court without expressing therein clearly the facts and the law on which it is based.
[56] CA rollo, p. 335.
[57]
[58] G.R. Nos. 75440-43,
[59] G.R. No. 81563,
[60] 374 Phil. 368 (1999).
[61] 310 Phil. 14 (1995).
[62] People
v. Mapalo, G.R. No. 172608,
[63] People
v. Barcenal, G.R. No. 175925,
[64] People
v. Bulan, G.R. No. 143404,
[65] Jardeleza
v. People, G.R. No. 165265,
[66] CA rollo, p. 343.
[67] G.R. No. 102007,
[68] Certification issued by Stanley N. Villanueva, Valuation and Classification Division, Bureau of Customs. Records, Vol. 1, p. 5.
[69] Section 1, Act No. 4103, as amended.