Republic
of the
SUPREME
COURT
FIRST DIVISION
|
ARNEL
U. TY, MARIE ANTONETTE TY, JASON ONG, WILLY DY, and ALVIN TY, Petitioners, - versus - NBI
SUPERVISING AGENT MARVIN E. DE JEMIL, PETRON GASUL DEALERS ASSOCIATION, and TOTALGAZ
DEALERS ASSOCIATION, Respondents. |
|
G.R. No. 182147 Present: VELASCO,
JR., LEONARDO-DE
CASTRO, PEREZ,
JJ. Promulgated: December
15, 2010 |
x-----------------------------------------------------------------------------------------x
D E C I S I O N
VELASCO, JR., J.:
The Case
In
this Petition for Review on Certiorari under Rule 45, petitioners seek the reversal
of the Decision[1] dated September
28, 2007 of the Court of Appeals (CA) in CA-G.R. SP No. 98054, which reversed
and set aside the Resolutions dated October 9, 2006[2]
and December 14, 2006[3] of
the Secretary of Justice, and reinstated the November 7, 2005 Joint Resolution[4] of
the Office of the Chief State Prosecutor.
Petitioners assail also the CA Resolution[5]
dated
The Facts
Petitioners
are stockholders of Omni Gas Corporation (Omni) as per Omni’s General
Information Sheet[6] (GIS)
dated
The
case all started when Joaquin Guevara Adarlo & Caoile Law Offices (JGAC Law
Offices) sent a letter dated March 22, 2004[7] to
the NBI requesting, on behalf of their clients Shellane Dealers Association,
Inc., Petron Gasul Dealers Association, Inc., and Totalgaz Dealers Association,
Inc., for the surveillance, investigation, and apprehension of persons or
establishments in Pasig City that are engaged in alleged illegal trading of
petroleum products and underfilling of branded LPG cylinders in violation of Batas Pambansa Blg. (BP) 33,[8] as
amended by Presidential Decree No. (PD) 1865.[9]
Earlier,
the JGAC Law Offices was furnished by several petroleum producers/brand owners their
respective certifications on the dealers/plants authorized to refill their
respective branded LPG cylinders, to wit: (1) On October 3, 2003, Pilipinas
Shell Petroleum Corporation (Pilipinas Shell) issued a certification[10]
of the list of entities duly authorized to refill Shellane LPG
cylinders; (2) on December 4, 2003, Petron Corporation (Petron) issued a certification[11]
of their dealers in Luzon, Visayas, and Mindanao authorized to refill Petron
Gasul LPG cylinders; and (3) on January 5, 2004, Total (Philippines)
Corporation (Total) issued two certifications[12] of
the refilling stations and plants authorized to refill their Totalgaz
and Superkalan Gaz LPG cylinders.
Agents
De Jemil and Kawada attested to conducting surveillance of Omni in the months
of March and April 2004 and doing a test-buy on
The
NBI’s test-buy yielded positive results for violations of BP 33, Section 2(a) in
relation to Secs. 3(c) and 4, i.e.,
refilling branded LPG cylinders without authority; and Sec. 2(c) in relation to
Sec. 4, i.e., underdelivery or
underfilling of LPG cylinders. Thus, on
On
the same day of the filing of the application for search warrants on
Subsequently,
Agent De Jemil filed before the Department of Justice (DOJ) his
Complaint-Affidavits against petitioners for:
(1) Violation of Section 2(a), in relation to Sections 3(c) and 4, of
B.P. Blg. 33, as amended by P.D. 1865;[21]
and (2) Violation of Section 2(c), in relation to Section 4, of B.P. Blg.
33, as amended by P.D. 1865,[22]
docketed as I.S. Nos. 2004-616 and 2004-618, respectively.
During
the preliminary investigation, petitioners submitted their Joint
Counter-Affidavit,[23]
which was replied[24]
to by Agent De Jemil with a corresponding rejoinder[25]
from petitioners.
The Ruling of the Office of the
Chief State Prosecutor
in I.S. No. 2004-616 and
I.S. No. 2004-618
On
WHEREFORE,
premises considered, it is hereby recommended that two (2) Informations for
violations of Section 2 [a] (illegal trading in petroleum and/or petroleum
products) and Section 2 [c] (underfilling of LPG cylinders), both of Batas
Pambansa Bilang 33, as amended, be filed against respondents [herein
petitioners] ARNEL TY, MARIE ANTONETTE TY, JASON ONG, WILLY DY and ALVIN TY.[27]
Petitioners’
motion for reconsideration,[28] was
denied through a Resolution[29]
by the Office of the Chief State Prosecutor issued on
In
time, petitioners appealed to the Office of the Secretary of Justice.[30]
The
Ruling of the DOJ Secretary
in
I.S. No. 2004-616 and I.S. No. 2004-618
On
WHEREFORE,
the assailed resolution is hereby REVERSED and SET ASIDE. The Chief State Prosecutor is directed to
cause the withdrawal of the informations for violations of Sections 2(a) and
2(c) of B.P. Blg. 33, as amended by P.D. 1865, against respondents Arnel Ty,
Mari Antonette Ty, Jason Ong, Willy Dy and Alvin Ty and report the action taken
within ten (10) days from receipt hereof.
SO
ORDERED.[32]
The
Office of the Secretary of Justice viewed, first, that the underfilling
of one of the eight LPG cylinders was an isolated incident and cannot give rise
to a conclusion of underfilling, as the phenomenon may have been caused by human
error, oversight or technical error.
Being an isolated case, it ruled that there was no showing of a clear
pattern of deliberate underfilling. Second,
on the alleged violation of refilling branded LPG cylinders sans written
authority, it found no sufficient basis to hold petitioners responsible for
violation of Sec. 2 (c) of BP 33, as amended, since there was no proof that the
branded LPG cylinders seized from Omni belong to another company or firm,
holding that the simple fact that the LPG cylinders with markings or stamps of
other petroleum producers cannot by itself prove ownership by said firms or
companies as the consumers who take them to Omni fully owned them having
purchased or acquired them beforehand.
Agent
De Jemil moved but was denied reconsideration[33] through
another Resolution[34]
dated
The Ruling
of the CA
The
Office of the Solicitor General (OSG), in its Comment[36] on
Agent De Jemil’s appeal, sought the dismissal of the latter’s petition viewing
that the determination by the Office of the Secretary of Justice of probable
cause is entitled to respect owing to the exercise of his prerogative to
prosecute or not.
On
On
September 28, 2007, the appellate court rendered the assailed Decision[39] revoking
the resolutions of the Office of the Secretary of Justice and reinstated the November
7, 2005 Joint Resolution of the Office of the Chief State Prosecutor. The fallo
reads:
WHEREFORE, the
instant petition is GRANTED. The
assailed resolutions dated
SO
ORDERED.[40]
Citing
Sec. 1 (1) and (3) of BP 33, as amended, which provide for the presumption of
underfilling, the CA held that the actual underfilling of an LPG cylinder falls
under the prohibition of the law which does not require for the underfilling to
be substantial and deliberate.
Moreover,
the CA found strong probable violation of “refilling of another company’s or
firm’s cylinders without such company’s or firm’s written authorization” under
Sec. 3 (c) of BP 33, as amended. The CA
relied on the affidavits of Agents De Jemil and Kawada, the certifications from
various LPG producers that Omni is not authorized to refill their branded LPG cylinders,
the results of the test-buy operation as attested to by the NBI agents and confirmed
by the examination of LPG Inspector Navio of the LPGIA, the letter-opinion[41] of
the Department of Energy (DOE) to Pilipinas Shell confirming that branded LPG
cylinders are properties of the companies whose stamp markings appear thereon,
and Department Circular No. 2000-05-007[42] of
the DOE on the required stamps or markings by the manufacturers of LPG
cylinders.
After
granting the appeal of Agent De Jemil, however, the motions to intervene filed
by Petron and NACI were simply noted by the appellate court.
Petitioners’
motion for reconsideration was rebuffed by the CA through the equally assailed
Thus,
the instant petition.
The Issues
I. WHETHER OR NOT RESPONDENTS WERE ENTITLED
TO THE SPECIAL CIVIL ACTION OF CERTIORARI IN THE COURT OF APPEALS.
II. WHETHER OR NOT UNDER THE CIRCUMSTANCES
THERE WAS PROBABLE CAUSE TO BELIEVE THAT PETITIONERS VIOLATED SECTION 2(A) OF
BATAS PAMBANSA BLG. 33, AS AMENDED.
III. WHETHER OR NOT UNDER THE CIRCUMSTANCES THERE
WAS PROBABLE CAUSE TO BELIEVE THAT PETITIONERS VIOLATED SECTION 2(C) OF BATAS
PAMBANSA BLG. 33, AS AMENDED.
IV. WHETHER OR NOT PETITIONERS CAN BE HELD
LIABLE UNDER BATAS PAMBANSA BLG. 33, AS AMENDED, FOR BEING MERE DIRECTORS, NOT
ACTUALLY IN CHARGE OF THE MANAGEMENT OF THE BUSINESS AFFAIRS OF THE
CORPORATION.[44]
The
foregoing issues can be summarized into two core issues: first, whether probable cause exists
against petitioners for violations of Sec. 2 (a) and (c) of BP 33, as amended;
and second, whether petitioners can be held liable therefor. We, however, will tackle at the outset the
sole procedural issue raised: the
propriety of the petition for certiorari under Rule 65 availed of by public
respondent Agent De Jemil to assail the resolutions of the Office of the
Secretary of Justice.
Petron’s
Comment-in-Intervention
On
The
Court’s Ruling
We
partially grant the petition.
Procedural
Issue: Petition for Certiorari under Rule
65 Proper
Petitioners
raise the sole procedural issue of the propriety of the legal remedy availed of
by public respondent Agent De Jemil. They strongly maintain that the Office of the
Secretary of Justice properly assumed jurisdiction and did not gravely abuse its
discretion in its determination of lack of probable cause—the exercise thereof
being its sole prerogative—which, they lament, the appellate court did not
accord proper latitude. Besides, they
assail the non-exhaustion of administrative remedies when Agent De Jemil immediately
resorted to court action through a special civil action for certiorari under
Rule 65 before the CA without first appealing the resolutions of the Office of
the Secretary of Justice to the Office of the President (OP).
We
cannot agree with petitioners.
For
one, while it is the consistent principle in this jurisdiction that the
determination of probable cause is a function that belongs to the public
prosecutor[48] and,
ultimately, to the Secretary of Justice, who may direct the filing of the
corresponding information or move for the dismissal of the case;[49] such
determination is subject to judicial review where it is established that grave
abuse of discretion tainted the determination.
For
another, there is no question that the Secretary of Justice is an alter ego of
the President who may opt to exercise or not to exercise his or her power of
review over the former’s determination in criminal investigation cases. As aptly noted by Agent De Jemil, the
determination of probable cause by the Secretary of Justice is, under the
doctrine of qualified political agency, presumably that of the Chief Executive
unless disapproved or reprobated by the latter.
Chan v. Secretary of Justice[50]
delineated the proper remedy from the determination of the Secretary of
Justice. Therein, the Court, after expounding
on the policy of non-interference in the determination of the existence of probable
cause absent any showing of arbitrariness on the part of the public prosecutor
and the Secretary of Justice, however, concluded, citing Alcaraz v. Gonzalez[51] and
Preferred Home Specialties, Inc. v. Court of Appeals,[52]
that an aggrieved party from the resolution of the Secretary of Justice may
directly resort to judicial review on the ground of grave abuse of discretion,
thus:
x x x
[T]he findings of the Justice Secretary
may be reviewed through a petition for certiorari under Rule 65
based on the allegation that he acted with grave abuse of discretion. This
remedy is available to the aggrieved party.[53] (Emphasis supplied.)
It
is thus clear that Agent De Jemil, the aggrieved party in the assailed resolutions
of the Office of the Secretary of Justice, availed of and pursued the proper
legal remedy of a judicial review through a petition for certiorari under Rule
65 in assailing the latter’s finding of lack of probable cause on the ground of
grave abuse of discretion.
First
Core Issue: Existence of Probable Cause
Petitioners
contend that there is no probable cause that Omni violated Sec. 2 (a), in relation
to Secs. 3 (c) and 4 of BP 33, as amended, prohibiting the refilling of another
company’s or firm’s LPG cylinders without its written authorization. First,
the branded LPG cylinders seized were not traded by Omni as its representative annotated
in the NBI receipt of seized items that the filled LPG cylinders came from
customers’ trucks and the empty ones were taken from the warehouse or swapping
section of the refilling plant and not from the refilling section. Second,
the branded LPG cylinders are owned by end-user customers and not by the major
petroleum companies, i.e.,
Petron, Pilipinas Shell and Total. And
even granting arguendo that Omni is selling these LPG cylinders, still there
cannot be a prima facie case of violation since there is no proof that
the refilled branded LPG cylinders are owned by another company or firm.
Third,
granting that Petron, Total and Pilipinas Shell still own their respective branded
LPG cylinders already sold to consumers, still such fact will not bind third
persons, like Omni, who is not privy to the agreement between the buying
consumers and said major petroleum companies.
Thus, a subsequent transfer by the customers of Petron, Total and
Pilipinas Shell of the duly marked or stamped LPG cylinders through swapping,
for example, will effectively transfer ownership of the LPG cylinders to the
transferee, like Omni.
Fourth,
LPG cylinder exchange or swapping is a common industry practice that the DOE
recognizes. They point to a series of
meetings conducted by the DOE for institutionalizing the validity of swapping
of all and any kind of LPG cylinders among the industry players. The meetings resulted in a draft Memorandum
of Agreement (MOA) which unfortunately was not signed due to the withdrawal of
petroleum major players Petron, Total and Pilipinas Shell. Nonetheless, the non-signing of the MOA does
not diminish the fact of the recognized industry practice of cylinder exchange
or swapping. Relying on Republic Act No.
(RA) 8479,[54]
petitioners maintain that said law promotes and encourages the entry of new
participants in the petroleum industry such as Omni. And in furtherance of this mandate is the
valid practice of cylinder exchange or swapping in the LPG industry.
We
are not persuaded by petitioners’ strained rationalizations.
Probable violation of
Sec. 2 (a) of BP 33, amended
First. The test-buy conducted on
Second. The written certifications from Pilipinas
Shell, Petron and Total show that Omni has no written authority to refill LPG
cylinders, embossed, marked or stamped Shellane, Petron Gasul, Totalgaz
and Superkalan Gaz. In fact,
petitioners neither dispute this nor claim that Omni has authority to refill
these branded LPG cylinders.
Third. Belying petitioners’ contention, the seized
items during the service of the search warrants tend to show that Omni
illegally refilled branded LPG cylinders without authority.
On
Quantity/Unit Description
7 LPG cylinders Totalgaz, 11.0 kg
[filled]
1 LPG cylinder Petron Gasul, 11.0
kg [filled]
1 LPG cylinder Shellane, 11.0 kg
[filled]
29 LPG cylinders Superkalan Gaz, 2.7
kg [empty]
17 LPG cylinders Petron Gasul, 11.0 kg
[emptly]
8 LPG cylinders Marked as Omnigas with
Shell emboss,
11.0
kg [empty]
5 LPG cylinders Marked as Omnigas
with Totalgaz emboss,
11.0
kg [empty]
23 LPG cylinders Shellane, 11.0 kg
[empty]
3 LPG cylinders Marked as Omnigas
with Gasul emboss,
11.0
kg [empty]
21 LPG cylinders Totalgaz, 11.0 kg
[empty]
The
foregoing list is embodied in the NBI’s Receipt/Inventory of Property/Item
Seized[55] signed
by NBI Agent Edwin J. Roble who served and implemented the search warrants. And a copy thereof was duly received by Atty.
Allan U. Ty, representative of Omni, who signed the same “under protest” and
made the annotation at the bottom part thereon:
“The above items/cylinders were taken at customers’ trucks and the empty
cylinders taken at the warehouse (swapping section) of the company.”[56]
Even
considering that the filled LPG cylinders were indeed already loaded on
customers’ trucks when confiscated, yet the fact that these refilled LPG cylinders
consisting of nine branded LPG cylinders, specifically Totalgaz, Petron
Gasul and Shellane, tends to show that Omni indeed refilled these
branded LPG cylinders without authorization from Total, Petron and Pilipinas
Shell. Such a fact is bolstered by the
test-buy conducted by Agent De Jemil and NBI confidential agent Kawada: Omni’s unauthorized refilling of branded LPG
cylinders, contrary to Sec. 2 (a) in relation to Sec. 3 (c) of BP 33, as
amended. Said provisos provide:
Sec. 2. Prohibited Acts.—The
following acts are prohibited and penalized:
(a) Illegal trading in petroleum and/or petroleum products;
x x x x
Sec. 3. Definition of terms.—For the
purpose of this Act, the following terms shall be construed to mean:
Illegal trading in petroleum and/or petroleum products—
x x x x
(c) Refilling of liquefied petroleum gas cylinders without
authority from said Bureau, or refilling of another company’s or firm’s
cylinders without such company’s or firm’s written authorization; (Emphasis supplied.)
As
petitioners strongly argue, even if the branded LPG cylinders were indeed owned
by customers, such fact does not authorize Omni to refill these branded LPG
cylinders without written authorization from the brand owners Pilipinas Shell,
Petron and Total. In
Similarly,
in the instant case, the fact that Omni refilled various branded LPG cylinders
even if owned by its customers but without authority from brand owners Petron,
Pilipinas Shell and Total shows palpable violation of BP 33, as amended. As aptly noted by the Court in
Fourth. The issue of ownership of the seized branded
LPG cylinders is irrelevant and hence need no belaboring. BP 33, as amended, does not require ownership
of the branded LPG cylinders as a condition
sine qua non for the commission of offenses involving petroleum
and petroleum products. Verily, the
offense of refilling a branded LPG cylinder without the written consent of the brand
owner constitutes the offense regardless of the buyer or possessor of the branded
LPG cylinder.
After
all, once a consumer buys a branded LPG cylinder from the brand owner or its
authorized dealer, said consumer is practically free to do what he pleases with
the branded LPG cylinder. He can simply
store the cylinder once it is empty or he can even destroy it since he has paid
a deposit for it which answers for the loss or cost of the empty branded LPG
cylinder. Given such fact, what the law
manifestly prohibits is the refilling of a branded LPG cylinder by a refiller
who has no written authority from the brand owner. Apropos, a refiller cannot and ought not to
refill branded LPG cylinders if it has no written authority from the brand
owner.
Besides,
persuasive are the opinions and pronouncements by the DOE: brand owners are deemed owners of their duly
embossed, stamped and marked LPG cylinders even if these are possessed by
customers or consumers. The Court
recognizes this right pursuant to our laws, i.e., Intellectual Property
Code of the
Fifth. The ownership of the seized branded LPG
cylinders, allegedly owned by Omni customers as petitioners adamantly profess,
is of no consequence.
The
law does not require that the property to be seized should be owned by the
person against whom the search warrants is directed. Ownership, therefore, is
of no consequence, and it is sufficient that the person against whom the
warrant is directed has control or possession of the property sought to be
seized.[65] Petitioners cannot deny that the seized LPG
cylinders were in the possession of Omni, found as they were inside the Omni
compound.
In
fine, we also note that among those seized by the NBI are 16 LPG cylinders bearing
the embossed brand names of Shellane, Gasul and Totalgaz
but were marked as Omnigas. Evidently,
this pernicious practice of tampering or changing the appearance of a branded
LPG cylinder to look like another brand violates the brand owners’ property
rights as infringement under Sec. 155.1 of RA 8293. Moreover, tampering of LPG cylinders is a mode
of perpetrating the criminal offenses under BP 33, as amended, and clearly
enunciated under DOE Circular No. 2000-06-010 which provided penalties on a per
cylinder basis for each violation.
Foregoing
considered, in the backdrop of the quantum of evidence required to support a
finding of probable cause, we agree with the appellate court and the Office of
the Chief State Prosecutor, which conducted the preliminary investigation, that
there exists probable cause for the violation of Sec. 2 (a) in relation to Sec.
3 (c) of BP 33, as amended. Probable
cause has been defined as the existence of such facts and circumstances as
would excite belief in a reasonable mind, acting on the facts within the
knowledge of the prosecutor, that the person charged was guilty of the crime
for which he was prosecuted.[66] After all, probable cause need not be based
on clear and convincing evidence of guilt, as the investigating officer acts
upon reasonable belief—probable cause implies probability of guilt and requires
more than bare suspicion but less than evidence which would justify a
conviction.[67]
Probable violation of
Sec. 2 (c) of BP 33, as amended
Anent
the alleged violation of Sec. 2 (c) in relation to Sec. 4 of BP 33, as amended,
petitioners strongly argue that there is no probable cause for said violation
based upon an underfilling of a lone cylinder of the eight branded LPG
cylinders refilled during the test-buy. Besides,
they point out that there was no finding of underfilling in any of the filled
LPG cylinders seized during the service of the search warrants. Citing DOE’s Bureau of Energy Utilization
Circular No. 85-3-348, they maintain that some deviation is allowed from the
exact filled weight. Considering the
fact that an isolated underfilling happened in so many LPG cylinders filled,
petitioners are of the view that such is due to human or equipment error and
does not in any way constitute deliberate underfilling within the contemplation
of the law.
Moreover,
petitioners cast aspersion on the report and findings of LPG Inspector Navio of
the LPGIA by assailing his independence for being a representative of the major
petroleum companies and that the inspection he conducted was made without the presence
of any DOE representative or any independent body having technical expertise in
determining LPG cylinder underfilling beyond the authorized quantity.
Again,
we are not persuaded.
Contrary
to petitioners’ arguments, a single underfilling constitutes an offense under BP
33, as amended by PD 1865, which clearly criminalizes these offenses. In Perez v. LPG Refillers Association of
the Philippines, Inc.,[68] the
Court affirmed the validity of DOE Circular No. 2000-06-010 which provided penalties on a per cylinder basis
for each violation, thus:
B.P.
Blg. 33, as amended, criminalizes illegal trading, adulteration, underfilling,
hoarding, and overpricing of petroleum products. Under this general description of what
constitutes criminal acts involving petroleum products, the Circular merely
lists the various modes by which the said criminal acts may be perpetrated,
namely: no price display board, no weighing scale, no tare weight or incorrect
tare weight markings, no authorized LPG seal, no trade name, unbranded LPG cylinders, no serial number, no
distinguishing color, no embossed identifying markings on cylinder, underfilling
LPG cylinders, tampering LPG cylinders, and unauthorized decanting
of LPG cylinders. These specific acts and omissions are obviously
within the contemplation of the law, which seeks to curb the pernicious
practices of some petroleum merchants.[69] (Emphasis supplied.)
Moreover,
in denying the motion for reconsideration of the LPG Refillers Association of
the Philippines, Inc., the Court upheld the basis of said DOE Circular No.
2000-06-010 on the imposition of
penalties on a per cylinder basis, thus:
Respondent’s
position is untenable. The Circular is
not confiscatory in providing penalties on a per cylinder basis. Those penalties do not exceed the ceiling
prescribed in Section 4 of B.P. Blg. 33, as amended, which penalizes “any
person who commits any act [t]herein prohibited.” Thus, violation on a per cylinder basis falls
within the phrase “any act” as mandated in Section 4. To
provide the same penalty for one who violates a prohibited act in B.P. Blg. 33,
as amended, regardless of the number of cylinders involved would result in an
indiscriminate, oppressive and impractical operation of B.P. Blg. 33, as
amended. The equal protection
clause demands that “all persons subject to such legislation shall be
treated alike, under like circumstances and conditions, both in the
privileges conferred and in the liabilities imposed.”[70]
The
Court made it clear that a violation, like underfilling, on a per cylinder
basis falls within the phrase of any act as mandated under Sec. 4 of BP
33, as amended. Ineluctably, the
underfilling of one LPG cylinder constitutes a clear violation of BP 33, as
amended. The finding of underfilling by LPG
Inspector Navio of the LPGIA, as aptly noted by Manila Assistant City
Prosecutor Catalo who conducted the preliminary investigation, was indeed not
controverted by petitioners.
On
the issue of manifest bias and partiality, suffice it to say that aside from the
allegation by petitioners, they have not shown that LPG Inspector Navio is neither
an expert nor qualified to determine underfilling. Besides, it must be noted that the inspection
by LPG Inspector Navio was conducted in the presence of NBI agents on
Second
Core Issue: Petitioners’ Liability for
Violations
Sec.
4 of BP 33, as amended, provides for the penalties and persons who are criminally
liable, thus:
Sec. 4. Penalties. — Any person who
commits any act herein prohibited shall, upon conviction, be punished with a
fine of not less than twenty thousand pesos (P20,000) but not more than fifty
thousand pesos (P50,000), or
imprisonment of at least two (2) years but not more than five (5) years, or
both, in the discretion of the court. In
cases of second and subsequent conviction under this Act, the penalty shall be
both fine and imprisonment as provided herein. Furthermore, the petroleum and/or petroleum
products, subject matter of the illegal trading, adulteration, shortselling,
hoarding, overpricing or misuse, shall be forfeited in favor of the Government:
Provided, That if the petroleum and/or petroleum products have already been
delivered and paid for, the offended party shall be indemnified twice the
amount paid, and if the seller who has not yet delivered has been fully paid,
the price received shall be returned to the buyer with an additional amount
equivalent to such price; and in addition, if the offender is an oil company, marketer,
distributor, refiller, dealer, sub-dealer and other retail outlets, or hauler,
the cancellation of his license.
Trials of cases arising from this Act shall be terminated within thirty (30)
days after arraignment.
When the offender is a corporation, partnership, or other juridical
person, the president, the general
manager, managing partner, or such other officer charged with the management of the business affairs thereof,
or employee responsible for the
violation shall be criminally liable; in case the offender is an alien, he
shall be subject to deportation after serving the sentence.
If
the offender is a government official or employee, he shall be perpetually
disqualified from office. (Emphasis
supplied.)
Relying
on the third paragraph of the above statutory proviso, petitioners argue that they
cannot be held liable for any perceived violations of BP 33, as amended, since
they are mere directors of Omni who are not in charge of the management of its
business affairs. Reasoning that criminal
liability is personal, liability attaches to a person from his personal act or
omission but not from the criminal act or negligence of another. Since Sec. 4 of BP 33, as amended, clearly
provides and enumerates who are criminally liable, which do not include members
of the board of directors of a corporation, petitioners, as mere members of the
board of directors who are not in charge of Omni’s business affairs, maintain
that they cannot be held liable for any perceived violations of BP 33, as
amended. To bolster their position, they
attest to being full-time employees of various firms as shown by the
Certificates of Employment[71]
they submitted tending to show that they are neither involved in the day-to-day
business of Omni nor managing it. Consequently,
they posit that even if BP 33, as amended, had been violated by Omni they
cannot be held criminally liable thereof not being in any way connected with
the commission of the alleged violations, and, consequently, the criminal
complaints filed against them based solely on their being members of the board
of directors as per the GIS submitted by Omni to SEC are grossly discriminatory.
On
this point, we agree with petitioners except as to petitioner Arnel U. Ty who
is indisputably the President of Omni.
It
may be noted that Sec. 4 above enumerates the persons who may be held liable
for violations of the law, viz: (1) the
president, (2) general manager, (3) managing partner, (4) such other officer
charged with the management of the business affairs of the corporation or
juridical entity, or (5) the employee responsible for such violation. A common thread of the first four enumerated
officers is the fact that they manage the business affairs of the corporation
or juridical entity. In short, they are
operating officers of a business concern, while the last in the list is
self-explanatory.
It
is undisputed that petitioners are members of the board of directors of Omni at
the time pertinent. There can be no
quibble that the enumeration of persons who may be held liable for corporate
violators of BP 33, as amended, excludes the members of the board of
directors. This stands to reason for the
board of directors of a corporation is generally a policy making body. Even if the corporate powers of a corporation
are reposed in the board of directors under the first paragraph of Sec. 23[72]
of the Corporation Code, it is of common knowledge and practice that the board
of directors is not directly engaged or charged with the running of the recurring
business affairs of the corporation.
Depending on the powers granted to them by the Articles of
Incorporation, the members of the board generally do not concern themselves
with the day-to-day affairs of the corporation, except those corporate officers
who are charged with running the business of the corporation and are
concomitantly members of the board, like the President. Section 25[73]
of the Corporation Code requires the president of a corporation to be also a
member of the board of directors.
Thus,
the application of the legal maxim expressio unius est exclusio alterius,
which means the mention of one thing implies the exclusion of another thing not
mentioned. If a statute enumerates the
thing upon which it is to operate, everything else must necessarily and by
implication be excluded from its operation and effect.[74] The fourth officer in the enumerated list is
the catch-all “such other officer charged with the management of the business
affairs” of the corporation or juridical entity which is a factual issue which
must be alleged and supported by evidence.
A
scrutiny of the GIS reveals that among the petitioners who are members of the board
of directors are the following who are likewise elected as corporate officers
of Omni: (1) Petitioner Arnel U. Ty
(Arnel) as President; (2) petitioner Mari
Antonette Ty as Treasurer; and (3) petitioner Jason Ong as Corporate Secretary. Sec. 4 of BP 33, as amended, clearly indicated
firstly the president of a corporation or juridical entity to be criminally
liable for violations of BP 33, as amended.
Evidently,
petitioner Arnel, as President, who manages the business affairs of Omni, can
be held liable for probable violations by Omni of BP 33, as amended. The fact that petitioner Arnel is ostensibly
the operations manager of Multi-Gas Corporation, a family owned business, does
not deter him from managing Omni as well.
It is well-settled that where the language of the law is clear and
unequivocal, it must be taken to mean exactly what it says.[75] As to the other petitioners, unless otherwise
shown that they are situated under the catch-all “such other officer charged
with the management of the business affairs,” they may not be held liable under
BP 33, as amended, for probable violations.
Consequently, with the exception of petitioner Arnel, the charges
against other petitioners must perforce be dismissed or dropped.
WHEREFORE, premises
considered, we PARTIALLY GRANT the instant petition. Accordingly, the assailed September 28, 2007 Decision
and March 14, 2008 Resolution of the Court of Appeals in CA-G.R. SP No. 98054
are AFFIRMED with
MODIFICATION that petitioners Mari Antonette Ty, Jason Ong, Willy Dy
and Alvin Ty are excluded from the two Informations charging probable
violations of Batas Pambansa Bilang 33, as amended. The Joint Resolution dated
No pronouncement as to costs.
SO ORDERED.
PRESBITERO
J. VELASCO, JR.
Associate Justice
WE CONCUR:
Chief Justice
Chairperson
TERESITA J. LEONARDO-DE CASTRO MARIANO C.
Associate Justice Associate Justice
JOSE
Associate Justice
Pursuant to Section 13,
Article VIII of the Constitution, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the
writer of the opinion of the Court’s Division.
RENATO
C. CORONA
Chief Justice
[1] Rollo, pp. 72-92. Penned by Associate Justice Ramon M. Bato, Jr. and concurred in by Associate Justices Andres B. Reyes and Arcangelita Romilla Lontok.
[2]
[3]
[4]
[5]
[6]
[7]
[8]
“An Act Defining and Penalizing certain Prohibited Acts Inimical to the Public
Interest and National Security Involving Petroleum and/or Petroleum Products,
Prescribing Penalties therefor and for Other Purposes,” promulgated on
[9] “Amending Batas Pambansa Blg. 33, x x x, by Including Short-Selling and Adulteration of Petroleum and Petroleum Products and Other Acts in the Definition of Prohibited Acts, Increasing the Penalties therein, and for Other Purposes,” issued on May 25, 1983.
[10] Rollo, p. 117.
[11]
[12]
[13]
[14]
[15]
[16]
[17]
[18]
[19]
[20]
[21]
[22]
[23]
[24]
[25]
[26] Supra note 4.
[27] Rollo, p. 273.
[28]
[29]
[30]
[31] Supra note 2.
[32] Rollo, p. 379.
[33]
[34] Supra note 3.
[35] Rollo, pp. 419-459.
[36]
[37]
[38]
[39] Supra note 1.
[40] Rollo, pp. 91-92.
[41]
[42]
[43] Supra note 5.
[44] Rollo, p. 44.
[45]
[46]
[47]
[48] Baltazar
v. People, G.R. No. 174016,
[49] Reyes v. Pearlbank Securities, Inc., G.R. No. 171435, July 30, 2008, 560 SCRA 518, 535; citing Advincula v. Court of Appeals, G.R. No. 131144, October 18, 2000, 343 SCRA 583, 589-290 and Punzalan v. Dela Peña, G.R. No. 158543, July 21, 2004, 434 SCRA 601.
[50]
G.R. No. 147065,
[51]
G.R. No. 164715,
[52]
G.R. No. 163593,
[53] Chan v. Secretary of Justice, supra note 50, at 350.
[54] Downstream Oil Industry Deregulation Act of 1998.
[55] Supra note 19.
[56] Rollo, p. 140.
[57]
G.R. No. 168306,
[58]
Intellectual Property Code of the
[59]
Sec. 155. Remedies; Infringement. - Any person who shall, without the
consent of the owner of the registered mark:
155.1. Use in
commerce any reproduction, counterfeit, copy, or colorable imitation of a
registered mark or the same container or a dominant feature thereof in
connection with the sale, offering for sale, distribution, advertising of any
goods or services including other preparatory steps necessary to carry out the
sale of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; x x x (Emphasis supplied.)
[60]
[61] Supra note 42, DOE Department Circular No. 2000-05-07 provides:
Embossed
Identifying Mark on LPG Cylinders and Installation of Collars with Distinctive
Design or Markings on Existing LP Cylinders During Requalification
FOR:
LPG REFILLERS ASSOCIATION (LPGRA) PHILIPPINE LPG ASSOCIATION (PLPGA) LPG
INSTITUTE OF THE PHILIPPINES (LPGIP) SOUTHERN ISLANDS TASK FORCE (SILTF)
LIQUIGAS PHILIPPINES CORPORATION (LPC) PETRONAS ENERGY PHILIPPINES, INC. (PEPI)
PRYCE GASES INCORPORATED (PGI) NATION GAS (NATION) TOTAL LPG PHILIPPINES
(TOTAL) PETRON CORPORATION (PETRON) PILIPINAS SHELL PETROLEUM CORP. (PSPC)
CALTEX TRADING CORP. (CATGAS) MANILA GAS CORPORATION (MGC) PHILIPPINE
ASSOCIATION OF LPG CYLINDERS MANUFACTURERS, INC. (PALCMI) ALL OTHERS CONCERNED
WHEREAS, pursuant to Section 2 and
Section 5 (k) of Chapter 1 of RA No. 7638, the DEPARTMENT OF ENERGY (DOE) shall
formulate rules and regulations as may be necessary to guide the operations of
both government and private entities involved in energy resource supply and
distribution.
WHEREAS, it has come to the attention of
his Office that there is a substantial number of LPG cylinders circulating
without appropriate distinguishing marks to identify the owner or source for
purposes of pinpointing responsibility in cases of underfilling and other
violations related to said cylinders;
WHEREAS, with the intensified drive
against violators in the conduct of the downstream LPG industry the DOE finds
that there is a need to address this problem of proper identification;
WHEREAS, premises considered, all
concerned LPG industry players are hereby directed to strictly comply with the
following:
In the manufacture of new LPG
cylinders the body shall be embossed with clear markings or signs indicating
ownership. New and locally
manufactured cylinders shall conform to the required Product Standard (PS) mark. For imported cylinders the same shall be
marked with the appropriate Import Commodity Clearance (ICC) prior to local
circulation. For existing LPG cylinders
without the embossed markings or signs, including all imported cylinders,
distinctive collars or collars with distinctive designs or markings of
permanent character shall be installed upon requalification or prior to local
circulation, as the case may be. The
installation of the required collar or distinctive markings of permanent
character shall be made only by government accredited cylinders manufacturers
or requalifiers with the date of installation properly indicated thereon.
This Department Circular shall take
effect one (1) month after its complete Publication in two (2) newspaper [sic]
of general circulation.
MARIO V. TIAOQUI
Secretary
(Emphasis supplied.)
[62] Supra note 41.
[63] Rollo, pp. 563-564.
[64]
LPG CYLINDER
OWNERSHIP
AND OBLIGATIONS
RELATED THERETO
WHEREAS, pursuant
to Republic Act Nos. 7368 (Department of Energy Act of 1992) and 8479
(Downstream Oil Industry Deregulation Act of 1998), Batas Pambansa Blg. 33 as
amended by Presidential Decree 1865 (Defining and penalizing certain prohibited
acts involving petroleum/petroleum products), and under pertinent rules and
regulations, the DOE has the power to monitor, supervise and regulate the
petroleum industry and impose corresponding administrative penalties for
violations thereof;
WHEREAS,
disputes and disagreements among industry players have increased in the recent
years regarding generally, the ownership of liquefied petroleum gas (LPG)
cylinders, owing to the absence of clear guidelines defining such ownership,
misunderstanding by consumers and dealers alike, and the inordinate
indifference of industry players to address this particular concern amongst
themselves;
WHEREAS, the DOE
has already issued Department Circular No. DC2000-05-07, requiring among others
that the owners or sources of LPG cylinders to emboss their brand and
ownership markings on the LPG cylinders, in an attempt to identify the owners
thereof for purposes of accountability;
WHEREAS, illegal
practices in LPG industry are escalating, more particularly in the refilling
LPG cylinders without the prior approval of consent of the owner of the LPG
cylinders, in the process depriving the latter of reasonable business return,
fomenting unsafe handling practice, and thus increasing risk and danger to the
consuming public;
WHEREAS, there
is now a pressing need to establish clear directives in order to diminish, if
not totally eliminate, illegal practices and abuses such as above, to prevent
evasion of liability on the part of LPG industry players, and to provide clear
guidelines and reference on the ownership of LPG cylinders, to enable the
Department to identify the proper liable persons and impose the appropriate
penalty thereof;
WHEREAS, in
consideration of the foregoing, the following guidelines are hereby promulgated
to govern these concerns:
SECTION 1. The brand owner whose permanent
mark/markings appear/s on the LPG cylinder shall be presumed the owner thereof,
irrespective of the party in custody or possession of the cylinder, and
regardless of whether such cylinder is, or continues to be, properly marked,
stamped or identified to contain its LPG brand, or whether such cylinder is in
compliance, or continues to comply with any other product or quality standard
prescribed under law, by the DOE or by the Department of Trade and Industry
(DTI), unless there is any unequivocal proof or indication that such
cylinder was sold, alienated, or otherwise disposed of by the brand owner to an
unrelated third party under a written instrument.
SECTION 2. The brand owner shall have the obligation to
ensure that its cylinders comply with all required product quality, quantity
and safety standards and specifications before they are released for
sale/distribution and while they are in circulation; Provided that receipt by
the DOE of a verified notice or report from the brand owner regarding any loss,
stolen or missing LPG cylinders shall prima facie relieve the cylinder
owner of the obligation to ensure the quality, safety and exact net content of
such LPG cylinders. Such report may be
rebutted by contrary evidence.
SECTION 3. The brand owner shall issue authorization
to entity/firm authorized to refill their LPG cylinders. Consequently, an entity/firm who shall refill
LPG cylinders without authority from the brand owner shall be charged with
“Illegal Refilling” and corresponding sanctions shall be applied;
SECTION 4. Upon notice of this Circular, all brand
owners shall immediately commence LPG cylinder audit and recovery program for a
period not exceeding six (6) months from effectivity of this Circular; and report
the same to OIMB.
Provisions to
complement this definition may be issued subsequently, as necessary.
Penalties and
sanctions for violations of this Circular shall take effect immediately upon
its publication in two (2) newspapers of general circulation.
ANGELO
T. REYES
Secretary
Department
of Energy
(Emphasis supplied.)
[65]
[66] Aguirre
v. Secretary, Department of Justice, G.R. No. 170723, March 3, 2008, 547
SCRA 431, 452; Tan v. Ballena, G.R. No. 168111, July 4, 2008, 557 SCRA
229, 251, citing Cruz v. People, G.R. No. 110436,
[67] Chan v. Secretary of Justice, supra note 50, at 352; citing Ching v. The Secretary of Justice, G.R. No. 164317, February 6, 2006, 481 SCRA 609, 629; The Presidential Ad Hoc Fact-Finding Committee on Behest Loans (FFCBL) v. Desierto, G.R. No. 136225, April 23, 2008, 552 SCRA 513, 528.
[69]
[70] Perez v. LPG Refillers Association of the Philippines, Inc., G.R. No. 159149, August 28, 2007, 531 SCRA 431, 435.
[71] Rollo, pp. 241-243.
[72] Sec. 23. The board of directors or trustees.—Unless otherwise provided in this Code, the corporate powers of all corporations formed under this Code shall be exercised, all business conducted and all property of such corporations controlled and held by the board of directors or trustees to be elected from among the holders of stocks, or where there is no stock, from among the members of the corporation, who shall hold office for one (1) year until their successors are elected and qualified. (Emphasis supplied.)
[73]
Sec. 25. Corporate officers, quorum.—Immediately
after their election, the directors of a corporation must formally organize by
the election of a president, who shall
be a director, a treasurer who may or may not be a director, a secretary
who shall be a resident and citizen of the
[74]
[75] Yu v. Orchard Golf & Country Club, Inc., G.R. No. 150335, March 1, 2007, 517 SCRA 169, 177 (citations omitted).