012 Laurel Vs Abrogar

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518 Phil. 409
FIRST DIVISION
[ G.R. NO. 155076, February 27, 2006 ]
LUIS MARCOS P. LAUREL, PETITIONER, VS. HON. ZEUS C.
ABROGAR, PRESIDING JUDGE OF THE REGIONAL TRIAL COURT,
MAKATI CITY, BRANCH 150, PEOPLE OF THE PHILIPPINES &
PHILIPPINE LONG DISTANCE TELEPHONE COMPANY,
RESPONDENTS.
D E C I S I O N
CALLEJO, SR., J.:
Before us is a Petition for Review on Certiorari of the Decision[1] of the Court of
Appeals (CA) in CAG.R. SP No. 68841 affirming the Order issued by Judge Zeus C.
Abrogar, Regional Trial Court (RTC), Makati City, Branch 150, which denied the "Motion
to Quash (With Motion to Defer Arraignment)" in Criminal Case No. 992425 for theft.
Philippine Long Distance Telephone Company (PLDT) is the holder of a legislative
franchise to render local and international telecommunication services under Republic
Act No. 7082.[2] Under said law, PLDT is authorized to establish, operate, manage,
lease, maintain and purchase telecommunication systems, including transmitting,
receiving and switching stations, for both domestic and international calls. For this
purpose, it has installed an estimated 1.7 million telephone lines nationwide. PLDT
also offers other services as authorized by Certificates of Public Convenience and
Necessity (CPCN) duly issued by the National Telecommunications Commission
(NTC), and operates and maintains an International Gateway Facility (IGF). The PLDT
network is thus principally composed of the Public Switch Telephone Network (PSTN),
telephone handsets and/or telecommunications equipment used by its subscribers,
the wires and cables linking said telephone handsets and/or telecommunications
equipment, antenna, the IGF, and other telecommunications equipment which provide
interconnections.[3]
PLDT alleges that one of the alternative calling patterns that constitute network fraud
and violate its network integrity is that which is known as International Simple Resale
(ISR). ISR is a method of routing and completing international long distance calls
using International Private Leased Lines (IPL), cables, antenna or air wave or
frequency, which connect directly to the local or domestic exchange facilities of the
terminating country (the country where the call is destined). The IPL is linked to
switching equipment which is connected to a PLDT telephone line/number. In the
process, the calls bypass the IGF found at the terminating country, or in some
instances, even those from the originating country.[4]
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One such alternative calling service is that offered by Baynet Co., Ltd. (Baynet) which
sells "Bay Super Orient Card" phone cards to people who call their friends and
relatives in the Philippines. With said card, one is entitled to a 27minute call to the
Philippines for about ￥37.03 per minute. After dialing the ISR access number indicated
in the phone card, the ISR operator requests the subscriber to give the PIN number
also indicated in the phone card. Once the caller's identity (as purchaser of the phone
card) is confirmed, the ISR operator will then provide a Philippine local line to the
requesting caller via the IPL. According to PLDT, calls made through the IPL never
pass the toll center of IGF operators in the Philippines. Using the local line, the Baynet
card user is able to place a call to any point in the Philippines, provided the local line
is National Direct Dial (NDD) capable.[5]
PLDT asserts that Baynet conducts its ISR activities by utilizing an IPL to course its
incoming international long distance calls from Japan. The IPL is linked to switching
equipment, which is then connected to PLDT telephone lines/numbers and equipment,
with Baynet as subscriber. Through the use of the telephone lines and other auxiliary
equipment, Baynet is able to connect an international long distance call from Japan to
any part of the Philippines, and make it appear as a call originating from Metro Manila.
Consequently, the operator of an ISR is able to evade payment of access, termination
or bypass charges and accounting rates, as well as compliance with the regulatory
requirements of the NTC. Thus, the ISR operator offers international
telecommunication services at a lower rate, to the damage and prejudice of
legitimate operators like PLDT.[6]
PLDT pointed out that Baynet utilized the following equipment for its ISR activities:
lines, cables, and antennas or equipment or device capable of transmitting air waves
or frequency, such as an IPL and telephone lines and equipment; computers or any
equipment or device capable of accepting information applying the prescribed process
of the information and supplying the result of this process; modems or any equipment
or device that enables a data terminal equipment such as computers to communicate
with other data terminal equipment via a telephone line; multiplexers or any
equipment or device that enables two or more signals from different sources to pass
through a common cable or transmission line; switching equipment, or equipment or
device capable of connecting telephone lines; and software, diskettes, tapes or
equipment or device used for recording and storing information.[7]
PLDT also discovered that Baynet subscribed to a total of 123 PLDT telephone
lines/numbers.[8] Based on the Traffic Study conducted on the volume of calls passing
through Baynet's ISR network which bypass the IGF toll center, PLDT incurred an
estimated monthly loss of P10,185,325.96.[9] Records at the Securities and Exchange
Commission (SEC) also revealed that Baynet was not authorized to provide
international or domestic long distance telephone service in the country. The following
are its officers: Yuji Hijioka, a Japanese national (chairman of the board of directors);
Gina C. Mukaida, a Filipina (board member and president); Luis Marcos P. Laurel, a
Filipino (board member and corporate secretary); Ricky Chan Pe, a Filipino (board
member and treasurer); and Yasushi Ueshima, also a Japanese national (board
member).
Upon complaint of PLDT against Baynet for network fraud, and on the strength of two
search warrants [10] issued by the RTC of Makati, Branch 147, National Bureau of
Investigation (NBI) agents searched its office at the 7th Floor, SJG Building, Kalayaan
Avenue, Makati City on November 8, 1999. Atsushi Matsuura, Nobuyoshi Miyake,
Edourd D. Lacson and Rolando J. Villegas were arrested by NBI agents while in the act
of manning the operations of Baynet. Seized in the premises during the search were
numerous equipment and devices used in its ISR activities, such as multiplexers,
modems, computer monitors, CPUs, antenna, assorted computer peripheral cords and
microprocessors, cables/wires, assorted PLDT statement of accounts, parabolic
antennae and voltage regulators.
State Prosecutor Ofelia L. Calo conducted an inquest investigation and issued a
Resolution[11] on January 28, 2000, finding probable cause for theft under Article 308
of the Revised Penal Code and Presidential Decree No. 401[12] against the
respondents therein, including Laurel.
On February 8, 2000, State Prosecutor Calo filed an Information with the RTC of
Makati City charging Matsuura, Miyake, Lacson and Villegas with theft under Article
308 of the Revised Penal Code. After conducting the requisite preliminary
investigation, the State Prosecutor filed an Amended Information impleading Laurel (a
partner in the law firm of Ingles, Laurel, Salinas, and, until November 19, 1999, a
member of the board of directors and corporate secretary of Baynet), and the other
members of the board of directors of said corporation, namely, Yuji Hijioka, Yasushi
Ueshima, Mukaida, Lacson and Villegas, as accused for theft under Article 308 of the
Revised Penal Code. The inculpatory portion of the Amended Information reads:
On or about September 1019, 1999, or prior thereto, in Makati City, and
within the jurisdiction of this Honorable Court, the accused, conspiring and
confederating together and all of them mutually helping and aiding one
another, with intent to gain and without the knowledge and consent of the
Philippine Long Distance Telephone (PLDT), did then and there willfully,
unlawfully and feloniously take, steal and use the international long
distance calls belonging to PLDT by conducting International Simple Resale
(ISR), which is a method of routing and completing international long
distance calls using lines, cables, antennae, and/or air wave frequency
which connect directly to the local or domestic exchange facilities of the
country where the call is destined, effectively stealing this business from
PLDT while using its facilities in the estimated amount of P20,370,651.92 to
the damage and prejudice of PLDT, in the said amount.
CONTRARY TO LAW.[13]
Accused Laurel filed a "Motion to Quash (with Motion to Defer Arraignment)" on the
ground that the factual allegations in the Amended Information do not constitute the
felony of theft under Article 308 of the Revised Penal Code. He averred that the
Revised Penal Code, or any other special penal law for that matter, does not prohibit
ISR operations. He claimed that telephone calls with the use of PLDT telephone lines,
whether domestic or international, belong to the persons making the call, not to PLDT.
He argued that the caller merely uses the facilities of PLDT, and what the latter owns
are the telecommunication infrastructures or facilities through which the call is made.
He also asserted that PLDT is compensated for the caller's use of its facilities by way
of rental; for an outgoing overseas call, PLDT charges the caller per minute, based on
the duration of the call. Thus, no personal property was stolen from PLDT. According
to Laurel, the P20,370,651.92 stated in the Information, if anything, represents the
rental for the use of PLDT facilities, and not the value of anything owned by it. Finally,
he averred that the allegations in the Amended Information are already subsumed
under the Information for violation of Presidential Decree (P.D.) No. 401 filed and
pending in the Metropolitan Trial Court of Makati City, docketed as Criminal Case No.
276766.
The prosecution, through private complainant PLDT, opposed the motion,[14]

contending that the movant unlawfully took personal property belonging to it, as
follows: 1) intangible telephone services that are being offered by PLDT and other
telecommunication companies, i.e., the connection and interconnection to their
telephone lines/facilities; 2) the use of those facilities over a period of time; and 3)
the revenues derived in connection with the rendition of such services and the use of
such facilities.[15]
The prosecution asserted that the use of PLDT's intangible telephone
services/facilities allows electronic voice signals to pass through the same, and
ultimately to the called party's number. It averred that such service/facility is akin to
electricity which, although an intangible property, may, nevertheless, be appropriated
and be the subject of theft. Such service over a period of time for a consideration is
the business that PLDT provides to its customers, which enables the latter to send
various messages to installed recipients. The service rendered by PLDT is akin to
merchandise which has specific value, and therefore, capable of appropriation by
another, as in this case, through the ISR operations conducted by the movant and his
coaccused.
The prosecution further alleged that "international business calls and revenues
constitute personal property envisaged in Article 308 of the Revised Penal Code."
Moreover, the intangible telephone services/facilities belong to PLDT and not to the
movant and the other accused, because they have no telephone services and
facilities of their own duly authorized by the NTC; thus, the taking by the movant and
his coaccused of PLDT services was with intent to gain and without the latter's
consent.
The prosecution pointed out that the accused, as well as the movant, were paid in
exchange for their illegal appropriation and use of PLDT's telephone services and
facilities; on the other hand, the accused did not pay a single centavo for their illegal
ISR operations. Thus, the acts of the accused were akin to the use of a "jumper" by a
consumer to deflect the current from the house electric meter, thereby enabling one
to steal electricity. The prosecution emphasized that its position is fortified by the
Resolutions of the Department of Justice in PLDT v. Tiongson, et al. (I.S. No. 97
0925) and in PAOCTFPLDT v. Elton John Tuason, et al. (I.S. No. 2000370) which
were issued on August 14, 2000 finding probable cause for theft against the
respondents therein.
On September 14, 2001, the RTC issued an Order[16] denying the Motion to Quash the
Amended Information. The court declared that, although there is no law that
expressly prohibits the use of ISR, the facts alleged in the Amended Information "will
show how the alleged crime was committed by conducting ISR," to the damage and
prejudice of PLDT.
Laurel filed a Motion for Reconsideration[17] of the Order, alleging that international
long distance calls are not personal property, and are not capable of appropriation. He
maintained that business or revenue is not considered personal property, and that the
prosecution failed to adduce proof of its existence and the subsequent loss of
personal property belonging to another. Citing the ruling of the Court in United States
v. De Guzman,[18] Laurel averred that the case is not one with telephone calls which
originate with a particular caller and terminates with the called party. He insisted that
telephone calls are considered privileged communications under the Constitution and
cannot be considered as "the property of PLDT." He further argued that there is no
kinship between telephone calls and electricity or gas, as the latter are forms of
energy which are generated and consumable, and may be considered as personal
property because of such characteristic. On the other hand, the movant argued, the
telephone business is not a form of energy but is an activity.
In its Order[19] dated December 11, 2001, the RTC denied the movant's Motion for
Reconsideration. This time, it ruled that what was stolen from PLDT was its "business"
because, as alleged in the Amended Information, the international long distance calls
made through the facilities of PLDT formed part of its business. The RTC noted that
the movant was charged with stealing the business of PLDT. To support its ruling, it
cited Strochecker v. Ramirez,[20] where the Court ruled that interest in business is
personal property capable of appropriation. It further declared that, through their ISR
operations, the movant and his coaccused deprived PLDT of fees for international
long distance calls, and that the ISR used by the movant and his coaccused was no
different from the "jumper" used for stealing electricity.
Laurel then filed a Petition for Certiorari with the CA, assailing the Order of the RTC.
He alleged that the respondent judge gravely abused his discretion in denying his
Motion to Quash the Amended Information.[21] As gleaned from the material
averments of the amended information, he was charged with stealing the
international long distance calls belonging to PLDT, not its business. Moreover, the
RTC failed to distinguish between the business of PLDT (providing services for
international long distance calls) and the revenues derived therefrom. He opined that
a "business" or its revenues cannot be considered as personal property under Article
308 of the Revised Penal Code, since a "business" is "(1) a commercial or mercantile
activity customarily engaged in as a means of livelihood and typically involving some
independence of judgment and power of decision; (2) a commercial or industrial
enterprise; and (3) refers to transactions, dealings or intercourse of any nature." On
the other hand, the term "revenue" is defined as "the income that comes back from
an investment (as in real or personal property); the annual or periodical rents,
profits, interests, or issues of any species of real or personal property."[22]
Laurel further posited that an electric company's business is the production and
distribution of electricity; a gas company's business is the production and/or
distribution of gas (as fuel); while a water company's business is the production and
distribution of potable water. He argued that the "business" in all these cases is the
commercial activity, while the goods and merchandise are the products of such
activity. Thus, in prosecutions for theft of certain forms of energy, it is the electricity
or gas which is alleged to be stolen and not the "business" of providing electricity or
gas. However, since a telephone company does not produce any energy, goods or
merchandise and merely renders a service or, in the words of PLDT, "the connection
and interconnection to their telephone lines/facilities," such service cannot be the
subject of theft as defined in Article 308 of the Revised Penal Code.[23]
He further declared that to categorize "business" as personal property under Article
308 of the Revised Penal Code would lead to absurd consequences; in prosecutions
for theft of gas, electricity or water, it would then be permissible to allege in the
Information that it is the gas business, the electric business or the water business
which has been stolen, and no longer the merchandise produced by such enterprise.
[24]
Laurel further cited the Resolution of the Secretary of Justice in Piltel v. Mendoza,[25]
where it was ruled that the Revised Penal Code, legislated as it was before present
technological advances were even conceived, is not adequate to address the novel
means of "stealing" airwaves or airtime. In said resolution, it was noted that the
inadequacy prompted the filing of Senate Bill 2379 (sic) entitled "The Anti
Telecommunications Fraud of 1997" to deter cloning of cellular phones and other
forms of communications fraud. The said bill "aims to protect in number (ESN) (sic) or
Capcode, mobile identification number (MIN), electronicinternational mobile
equipment identity (EMEI/IMEI), or subscriber identity module" and "any attempt to
duplicate the data on another cellular phone without the consent of a public
telecommunications entity would be punishable by law."[26] Thus, Laurel concluded,
"there is no crime if there is no law punishing the crime."
On August 30, 2002, the CA rendered judgment dismissing the petition.[27] The
appellate court ruled that a petition for certiorari under Rule 65 of the Rules of Court
was not the proper remedy of the petitioner. On the merits of the petition, it held that
while business is generally an activity which is abstract and intangible in form, it is
nevertheless considered "property" under Article 308 of the Revised Penal Code. The
CA opined that PLDT"s business of providing international calls is personal property
which may be the object of theft, and cited United States v. Carlos [28] to support
such conclusion. The tribunal also cited Strochecker v. Ramirez,[29] where this Court
ruled that onehalf interest in a day's business is personal property under Section 2 of
Act No. 3952, otherwise known as the Bulk Sales Law. The appellate court held that
the operations of the ISR are not subsumed in the charge for violation of P.D. No. 401.
Laurel, now the petitioner, assails the decision of the CA, contending that
THE COURT OF APPEALS ERRED IN RULING THAT THE PERSONAL PROPERTY
ALLEGEDLY STOLEN PER THE INFORMATION IS NOT THE "INTERNATIONAL
LONG DISTANCE CALLS" BUT THE "BUSINESS OF PLDT."
THE COURT OF APPEALS ERRED IN RULING THAT THE TERM "BUSINESS" IS
PERSONAL PROPERTY WITHIN THE MEANING OF ART. 308 OF THE REVISED
PENAL CODE.[30]
Petitioner avers that the petition for a writ of certiorari may be filed to nullify an
interlocutory order of the trial court which was issued with grave abuse of discretion
amounting to excess or lack of jurisdiction. In support of his petition before the Court,
he reiterates the arguments in his pleadings filed before the CA. He further claims
that while the right to carry on a business or an interest or participation in business is
considered property under the New Civil Code, the term "business," however, is not.
He asserts that the Philippine Legislature, which approved the Revised Penal Code
way back in January 1, 1932, could not have contemplated to include international
long distance calls and "business" as personal property under Article 308 thereof.
In its comment on the petition, the Office of the Solicitor General (OSG) maintains
that the amended information clearly states all the essential elements of the crime of
theft. Petitioner's interpretation as to whether an "international long distance call" is
personal property under the law is inconsequential, as a reading of the amended
information readily reveals that specific acts and circumstances were alleged charging
Baynet, through its officers, including petitioner, of feloniously taking, stealing and
illegally using international long distance calls belonging to respondent PLDT by
conducting ISR operations, thus, "routing and completing international long distance
calls using lines, cables, antenna and/or airwave frequency which connect directly to
the local or domestic exchange facilities of the country where the call is destined."
The OSG maintains that the international long distance calls alleged in the amended
information should be construed to mean "business" of PLDT, which, while abstract
and intangible in form, is personal property susceptible of appropriation.[31] The OSG
avers that what was stolen by petitioner and his coaccused is the business of PLDT
providing international long distance calls which, though intangible, is personal
property of the PLDT.[32]
For its part, respondent PLDT asserts that personal property under Article 308 of the
Revised Penal Code comprehends intangible property such as electricity and gas
which are valuable articles for merchandise, brought and sold like other personal
property, and are capable of appropriation. It insists that the business of international
calls and revenues constitute personal property because the same are valuable
articles of merchandise. The respondent reiterates that international calls involve (a)
the intangible telephone services that are being offered by it, that is, the connection
and interconnection to the telephone network, lines or facilities; (b) the use of its
telephone network, lines or facilities over a period of time; and (c) the income
derived in connection therewith.[33]
PLDT further posits that business revenues or the income derived in connection with
the rendition of such services and the use of its telephone network, lines or facilities
are personal properties under Article 308 of the Revised Penal Code; so is the use of
said telephone services/telephone network, lines or facilities which allow electronic
voice signals to pass through the same and ultimately to the called party's number. It
is akin to electricity which, though intangible property, may nevertheless be
appropriated and can be the object of theft. The use of respondent PLDT's telephone
network, lines, or facilities over a period of time for consideration is the business that
it provides to its customers, which enables the latter to send various messages to
intended recipients. Such use over a period of time is akin to merchandise which has
value and, therefore, can be appropriated by another. According to respondent PLDT,
this is what actually happened when petitioner Laurel and the other accused below
conducted illegal ISR operations.[34]
The petition is meritorious.
The issues for resolution are as follows: (a) whether or not the petition for certiorari
is the proper remedy of the petitioner in the Court of Appeals; (b) whether or not
international telephone calls using Bay Super Orient Cards through the
telecommunication services provided by PLDT for such calls, or, in short, PLDT's
business of providing said telecommunication services, are proper subjects of theft
under Article 308 of the Revised Penal Code; and (c) whether or not the trial court
committed grave abuse of discretion amounting to excess or lack of jurisdiction in
denying the motion of the petitioner to quash the amended information.
On the issue of whether or not the petition for certiorari instituted by the petitioner in
the CA is proper, the general rule is that a petition for certiorari under Rule 65 of the
Rules of Court, as amended, to nullify an order denying a motion to quash the
Information is inappropriate because the aggrieved party has a remedy of appeal in
the ordinary course of law. Appeal and certiorari are mutually exclusive of each other.
The remedy of the aggrieved party is to continue with the case in due course and,
when an unfavorable judgment is rendered, assail the order and the decision on
appeal. However, if the trial court issues the order denying the motion to quash the
Amended Information with grave abuse of discretion amounting to excess or lack of
jurisdiction, or if such order is patently erroneous, or null and void for being contrary
to the Constitution, and the remedy of appeal would not afford adequate and
expeditious relief, the accused may resort to the extraordinary remedy of certiorari.
[35] A special civil action for certiorari is also available where there are special
circumstances clearly demonstrating the inadequacy of an appeal. As this Court held
in Bristol Myers Squibb (Phils.), Inc. v. Viloria: [36]
Nonetheless, the settled rule is that a writ of certiorari may be granted in
cases where, despite availability of appeal after trial, there is at least a
prima facie showing on the face of the petition and its annexes that: (a)
the trial court issued the order with grave abuse of discretion amounting to
lack of or in excess of jurisdiction; (b) appeal would not prove to be a
speedy and adequate remedy; (c) where the order is a patent nullity; (d)
the decision in the present case will arrest future litigations; and (e) for
certain considerations such as public welfare and public policy.[37]
In his petition for certiorari in the CA, petitioner averred that the trial court committed
grave abuse of its discretion amounting to excess or lack of jurisdiction when it
denied his motion to quash the Amended Information despite his claim that the
material allegations in the Amended Information do not charge theft under Article 308
of the Revised Penal Code, or any offense for that matter. By so doing, the trial court
deprived him of his constitutional right to be informed of the nature of the charge
against him. He further averred that the order of the trial court is contrary to the
constitution and is, thus, null and void. He insists that he should not be compelled to
undergo the rigors and tribulations of a protracted trial and incur expenses to defend
himself against a nonexistent charge.
Petitioner is correct.
An information or complaint must state explicitly and directly every act or omission
constituting an offense[38] and must allege facts establishing conduct that a penal
statute makes criminal; [39] and describes the property which is the subject of theft to
advise the accused with reasonable certainty of the accusation he is called upon to
meet at the trial and to enable him to rely on the judgment thereunder of a
subsequent prosecution for the same offense.[40] It must show, on its face, that if the
alleged facts are true, an offense has been committed. The rule is rooted on the
constitutional right of the accused to be informed of the nature of the crime or cause
of the accusation against him. He cannot be convicted of an offense even if proven
unless it is alleged or necessarily included in the Information filed against him.
As a general prerequisite, a motion to quash on the ground that the Information does
not constitute the offense charged, or any offense for that matter, should be resolved
on the basis of said allegations whose truth and veracity are hypothetically
committed; [41] and on additional facts admitted or not denied by the prosecution.[42]
If the facts alleged in the Information do not constitute an offense, the complaint or
information should be quashed by the court. [43]
We have reviewed the Amended Information and find that, as mentioned by the
petitioner, it does not contain material allegations charging the petitioner of theft of
personal property under Article 308 of the Revised Penal Code. It, thus, behooved the
trial court to quash the Amended Information. The Order of the trial court denying the
motion of the petitioner to quash the Amended Information is a patent nullity.
On the second issue, we find and so hold that the international telephone calls placed
by Bay Super Orient Card holders, the telecommunication services provided by PLDT
and its business of providing said services are not personal properties under Article
308 of the Revised Penal Code. The construction by the respondents of Article 308 of
the said Code to include, within its coverage, the aforesaid international telephone
calls, telecommunication services and business is contrary to the letter and intent of
the law.
The rule is that, penal laws are to be construed strictly. Such rule is founded on the
tenderness of the law for the rights of individuals and on the plain principle that the
power of punishment is vested in Congress, not in the judicial department. It is
Congress, not the Court, which is to define a crime, and ordain its punishment.[44]
Due respect for the prerogative of Congress in defining crimes/felonies constrains the
Court to refrain from a broad interpretation of penal laws where a "narrow
interpretation" is appropriate. The Court must take heed to language, legislative
history and purpose, in order to strictly determine the wrath and breath of the
conduct the law forbids.[45] However, when the congressional purpose is unclear, the
court must apply the rule of lenity, that is, ambiguity concerning the ambit of criminal
statutes should be resolved in favor of lenity. [46]
Penal statutes may not be enlarged by implication or intent beyond the fair meaning
of the language used; and may not be held to include offenses other than those which
are clearly described, notwithstanding that the Court may think that Congress should
have made them more comprehensive.[47] Words and phrases in a statute are to be
construed according to their common meaning and accepted usage.
As Chief Justice John Marshall declared, "it would be dangerous, indeed, to carry the
principle that a case which is within the reason or mischief of a statute is within its
provision, so far as to punish a crime not enumerated in the statute because it is of
equal atrocity, or of kindred character with those which are enumerated.[48] When
interpreting a criminal statute that does not explicitly reach the conduct in question,
the Court should not base an expansive reading on inferences from subjective and
variable understanding.[49]
Article 308 of the Revised Penal Code defines theft as follows:
Art. 308. Who are liable for theft." – Theft is committed by any person who,
with intent to gain but without violence, against or intimidation of persons
nor force upon things, shall take personal property of another without the
latter's consent.
The provision was taken from Article 530 of the Spanish Penal Code which reads:
1. Los que con ánimo de lucrarse, y sin violencia o intimidación en las
personas ni fuerza en las cosas, toman las cosas muebles ajenas sin la
voluntad de su dueño.[50]
For one to be guilty of theft, the accused must have an intent to steal (animus
furandi) personal property, meaning the intent to deprive another of his
ownership/lawful possession of personal property which intent is apart from and
concurrently with the general criminal intent which is an essential element of a felony
of dolo (dolus malus).
An information or complaint for simple theft must allege the following elements: (a)
the taking of personal property; (b) the said property belongs to another; (c) the
taking be done with intent to gain; and (d) the taking be accomplished without the
use of violence or intimidation of person/s or force upon things.[51]
One is apt to conclude that "personal property" standing alone, covers both tangible
and intangible properties and are subject of theft under the Revised Penal Code. But
the words "Personal property" under the Revised Penal Code must be considered in
tandem with the word "take" in the law. The statutory definition of "taking" and
movable property indicates that, clearly, not all personal properties may be the
proper subjects of theft. The general rule is that, only movable properties which have
physical or material existence and susceptible of occupation by another are proper
objects of theft.[52] As explained by Cuelo Callon: "Cosa juridicamente es toda
sustancia corporal, material, susceptible de ser aprehendida que tenga un valor
cualquiera."[53]
According to Cuello Callon, in the context of the Penal Code, only those movable
properties which can be taken and carried from the place they are found are proper
subjects of theft. Intangible properties such as rights and ideas are not subject of
theft because the same cannot be "taken" from the place it is found and is occupied
or appropriated.
Solamente las cosas muebles y corporales pueden ser objeto de hurto. La
sustracción de cosas inmuebles y la cosas incorporales (v. gr., los
derechos, las ideas) no puede integrar este delito, pues no es posible
asirlas, tomarlas, para conseguir su apropiación. El Codigo emplea la
expresión "cosas mueble" en el sentido de cosa que es susceptible de ser
llevada del lugar donde se encuentra, como dinero, joyas, ropas, etcétera,
asi que su concepto no coincide por completo con el formulado por el
Codigo civil (arts. 335 y 336).[54]
Thus, movable properties under Article 308 of the Revised Penal Code should be
distinguished from the rights or interests to which they relate. A naked right existing
merely in contemplation of law, although it may be very valuable to the person who is
entitled to exercise it, is not the subject of theft or larceny.[55] Such rights or
interests are intangible and cannot be "taken" by another. Thus, right to produce oil,
good will or an interest in business, or the right to engage in business, credit or
franchise are properties. So is the credit line represented by a credit card. However,
they are not proper subjects of theft or larceny because they are without form or
substance, the mere "breath" of the Congress. On the other hand, goods, wares and
merchandise of businessmen and credit cards issued to them are movable properties
with physical and material existence and may be taken by another; hence, proper
subjects of theft.
There is "taking" of personal property, and theft is consummated when the offender
unlawfully acquires possession of personal property even if for a short time; or if such
property is under the dominion and control of the thief. The taker, at some particular
amount, must have obtained complete and absolute possession and control of the
property adverse to the rights of the owner or the lawful possessor thereof.[56] It is
not necessary that the property be actually carried away out of the physical
possession of the lawful possessor or that he should have made his escape with it.[57]
Neither asportation nor actual manual possession of property is required.
Constructive possession of the thief of the property is enough.[58]
The essence of the element is the taking of a thing out of the possession of the owner
without his privity and consent and without animus revertendi.[59]
Taking may be by the offender's own hands, by his use of innocent persons without
any felonious intent, as well as any mechanical device, such as an access device or
card, or any agency, animate or inanimate, with intent to gain. Intent to gain includes
the unlawful taking of personal property for the purpose of deriving utility,
satisfaction, enjoyment and pleasure.[60]
We agree with the contention of the respondents that intangible properties such as
electrical energy and gas are proper subjects of theft. The reason for this is that, as
explained by this Court in United States v. Carlos [61] and United States v.
Tambunting,[62] based on decisions of the Supreme Court of Spain and of the courts
in England and the United States of America, gas or electricity are capable of
appropriation by another other than the owner. Gas and electrical energy may be
taken, carried away and appropriated. In People v. Menagas,[63] the Illinois State
Supreme Court declared that electricity, like gas, may be seen and felt. Electricity, the
same as gas, is a valuable article of merchandise, bought and sold like other personal
property and is capable of appropriation by another. It is a valuable article of
merchandise, bought and sold like other personal property, susceptible of being
severed from a mass or larger quantity and of being transported from place
to place. Electrical energy may, likewise, be taken and carried away. It is a valuable
commodity, bought and sold like other personal property. It may be transported
from place to place. There is nothing in the nature of gas used for illuminating
purposes which renders it incapable of being feloniously taken and carried away.
In People ex rel Brush Electric Illuminating Co. v. Wemple,[64] the Court of Appeals of
New York held that electric energy is manufactured and sold in determinate quantities
at a fixed price, precisely as are coal, kerosene oil, and gas. It may be conveyed to
the premises of the consumer, stored in cells of different capacity known as an
accumulator; or it may be sent through a wire, just as gas or oil may be transported
either in a close tank or forced through a pipe. Having reached the premises of the
consumer, it may be used in any way he may desire, being, like illuminating gas,
capable of being transformed either into heat, light, or power, at the option of the
purchaser. In Woods v. People,[65] the Supreme Court of Illinois declared that there is
nothing in the nature of gas used for illuminating purposes which renders it incapable
of being feloniously taken and carried away. It is a valuable article of
merchandise, bought and sold like other personal property, susceptible of
being severed from a mass or larger quantity and of being transported from
place to place.
Gas and electrical energy should not be equated with business or services provided
by business entrepreneurs to the public. Business does not have an exact definition.
Business is referred as that which occupies the time, attention and labor of men for
the purpose of livelihood or profit. It embraces everything that which a person can be
employed.[66] Business may also mean employment, occupation or profession.
Business is also defined as a commercial activity for gain benefit or advantage.[67]
Business, like services in business, although are properties, are not proper subjects of
theft under the Revised Penal Code because the same cannot be "taken" or
"occupied." If it were otherwise, as claimed by the respondents, there would be no
juridical difference between the taking of the business of a person or the services
provided by him for gain, visávis, the taking of goods, wares or merchandise, or
equipment comprising his business.[68] If it was its intention to include "business" as
personal property under Article 308 of the Revised Penal Code, the Philippine
Legislature should have spoken in language that is clear and definite: that business is
personal property under Article 308 of the Revised Penal Code.[69]
We agree with the contention of the petitioner that, as gleaned from the material
averments of the Amended Information, he is charged of "stealing the international
long distance calls belonging to PLDT" and the use thereof, through the ISR. Contrary
to the claims of the OSG and respondent PLDT, the petitioner is not charged of
stealing P20,370,651.95 from said respondent. Said amount of P20,370,651.95 alleged
in the Amended Information is the aggregate amount of access, transmission or
termination charges which the PLDT expected from the international long distance
calls of the callers with the use of Baynet Super Orient Cards sold by Baynet Co. Ltd.
In defining theft, under Article 308 of the Revised Penal Code, as the taking of
personal property without the consent of the owner thereof, the Philippine legislature
could not have contemplated the human voice which is converted into electronic
impulses or electrical current which are transmitted to the party called through the
PSTN of respondent PLDT and the ISR of Baynet Card Ltd. within its coverage. When
the Revised Penal Code was approved, on December 8, 1930, international telephone
calls and the transmission and routing of electronic voice signals or impulses
emanating from said calls, through the PSTN, IPL and ISR, were still nonexistent.
Case law is that, where a legislative history fails to evidence congressional awareness
of the scope of the statute claimed by the respondents, a narrow interpretation of the
law is more consistent with the usual approach to the construction of the statute.
Penal responsibility cannot be extended beyond the fair scope of the statutory
mandate.[70]
Respondent PLDT does not acquire possession, much less, ownership of the voices of
the telephone callers or of the electronic voice signals or current emanating from said
calls. The human voice and the electronic voice signals or current caused thereby are
intangible and not susceptible of possession, occupation or appropriation by the
respondent PLDT or even the petitioner, for that matter. PLDT merely transmits the
electronic voice signals through its facilities and equipment. Baynet Card Ltd., through
its operator, merely intercepts, reroutes the calls and passes them to its toll center.
Indeed, the parties called receive the telephone calls from Japan.
In this modern age of technology, telecommunications systems have become so
tightly merged with computer systems that it is difficult to know where one starts and
the other finishes. The telephone set is highly computerized and allows computers to
communicate across long distances.[71] The instrumentality at issue in this case is
not merely a telephone but a telephone inexplicably linked to a computerized
communications system with the use of Baynet Cards sold by the Baynet Card Ltd.
The corporation uses computers, modems and software, among others, for its ISR.[72]
The conduct complained of by respondent PLDT is reminiscent of "phreaking" (a slang
term for the action of making a telephone system to do something that it normally
should not allow by "making the phone company bend over and grab its ankles"). A
"phreaker" is one who engages in the act of manipulating phones and illegally
markets telephone services.[73] Unless the phone company replaces all its hardware,
phreaking would be impossible to stop. The phone companies in North America were
impelled to replace all their hardware and adopted full digital switching system known
as the Common Channel Inter Office Signaling. Phreaking occurred only during the
1960's and 1970's, decades after the Revised Penal Code took effect.
The petitioner is not charged, under the Amended Information, for theft of
telecommunication or telephone services offered by PLDT. Even if he is, the term
"personal property" under Article 308 of the Revised Penal Code cannot be interpreted
beyond its seams so as to include "telecommunication or telephone services" or
computer services for that matter. The word "service" has a variety of meanings
dependent upon the context, or the sense in which it is used; and, in some instances,
it may include a sale. For instance, the sale of food by restaurants is usually referred
to as "service," although an actual sale is involved.[74] It may also mean the duty or
labor to be rendered by one person to another; performance of labor for the benefit of
another.[75] In the case of PLDT, it is to render local and international
telecommunications services and such other services as authorized by the CPCA
issued by the NTC. Even at common law, neither time nor services may be taken and
occupied or appropriated.[76] A service is generally not considered property and a
theft of service would not, therefore, constitute theft since there can be no caption or
asportation.[77] Neither is the unauthorized use of the equipment and facilities of
PLDT by the petitioner theft under the aforequoted provision of the Revised Penal
Code.[78]
If it was the intent of the Philippine Legislature, in 1930, to include services to be the
subject of theft, it should have incorporated the same in Article 308 of the Revised
Penal Code. The Legislature did not. In fact, the Revised Penal Code does not even
contain a definition of services.
If taking of telecommunication services or the business of a person, is to be
proscribed, it must be by special statute[79] or an amendment of the Revised Penal
Code. Several states in the United States, such as New York, New Jersey, California
and Virginia, realized that their criminal statutes did not contain any provisions
penalizing the theft of services and passed laws defining and penalizing theft of
telephone and computer services. The Pennsylvania Criminal Statute now penalizes
theft of services, thus:
(a) Acquisition of services.
(1) A person is guilty of theft if he intentionally obtains services for himself
or for another which he knows are available only for compensation, by
deception or threat, by altering or tampering with the public utility meter
or measuring device by which such services are delivered or by causing or
permitting such altering or tampering, by making or maintaining any
unauthorized connection, whether physically, electrically or inductively, to
a distribution or transmission line, by attaching or maintaining the
attachment of any unauthorized device to any cable, wire or other
component of an electric, telephone or cable television system or to a
television receiving set connected to a cable television system, by making
or maintaining any unauthorized modification or alteration to any device
installed by a cable television system, or by false token or other trick or
artifice to avoid payment for the service.
In the State of Illinois in the United States of America, theft of labor or services or
use of property is penalized:
(a) A person commits theft when he obtains the temporary use of
property, labor or services of another which are available only for hire, by
means of threat or deception or knowing that such use is without the
consent of the person providing the property, labor or services.
In 1980, the drafters of the Model Penal Code in the United States of America arrived
at the conclusion that labor and services, including professional services, have not
been included within the traditional scope of the term "property" in ordinary theft
statutes. Hence, they decided to incorporate in the Code Section 223.7, which defines
and penalizes theft of services, thus:
(1) A person is guilty of theft if he purposely obtains services which he
knows are available only for compensation, by deception or threat, or by
false token or other means to avoid payment for the service. "Services"
include labor, professional service, transportation, telephone or other public
service, accommodation in hotels, restaurants or elsewhere, admission to
exhibitions, use of vehicles or other movable property. Where
compensation for service is ordinarily paid immediately upon the rendering
of such service, as in the case of hotels and restaurants, refusal to pay or
absconding without payment or offer to pay gives rise to a presumption
that the service was obtained by deception as to intention to pay; (2) A
person commits theft if, having control over the disposition of services of
others, to which he is not entitled, he knowingly diverts such services to
his own benefit or to the benefit of another not entitled thereto.
Interestingly, after the State Supreme Court of Virginia promulgated its decision in
Lund v. Commonwealth,[80] declaring that neither time nor services may be taken and
carried away and are not proper subjects of larceny, the General Assembly of Virginia
enacted Code No. 18298 which reads:
Computer time or services or data processing services or information or
data stored in connection therewith is hereby defined to be property which
may be the subject of larceny under §§18.295 or 18.296, or
embezzlement under §§18.2111, or false pretenses under § 18.2178.
In the State of Alabama, Section 13A810(a)(1) of the Penal Code of Alabama of
1975 penalizes theft of services:
"A person commits the crime of theft of services if: (a) He intentionally
obtains services known by him to be available only for compensation by
deception, threat, false token or other means to avoid payment for the
services ..."
In the Philippines, Congress has not amended the Revised Penal Code to include theft
of services or theft of business as felonies. Instead, it approved a law, Republic Act
No. 8484, otherwise known as the Access Devices Regulation Act of 1998, on
February 11, 1998. Under the law, an access device means any card, plate, code,
account number, electronic serial number, personal identification number and other
telecommunication services, equipment or instrumentalitiesidentifier or other
means of account access that can be used to obtain money, goods, services or any
other thing of value or to initiate a transfer of funds other than a transfer originated
solely by paper instrument. Among the prohibited acts enumerated in Section 9 of the
law are the acts of obtaining money or anything of value through the use of an access
device, with intent to defraud or intent to gain and fleeing thereafter; and of effecting
transactions with one or more access devices issued to another person or persons to
receive payment or any other thing of value. Under Section 11 of the law, conspiracy
to commit access devices fraud is a crime. However, the petitioner is not charged of
violation of R.A. 8484.
Significantly, a prosecution under the law shall be without prejudice to any liability for
violation of any provisions of the Revised Penal Code inclusive of theft under Rule 308
of the Revised Penal Code and estafa under Article 315 of the Revised Penal Code.
Thus, if an individual steals a credit card and uses the same to obtain services, he is
liable of the following: theft of the credit card under Article 308 of the Revised Penal
Code; violation of Republic Act No. 8484; and estafa under Article 315(2)(a) of the
Revised Penal Code with the service provider as the private complainant. The
petitioner is not charged of estafa before the RTC in the Amended Information.
Section 33 of Republic Act No. 8792, Electronic Commerce Act of 2000 provides:
Sec. 33. Penalties.— The following Acts shall be penalized by fine and/or
imprisonment, as follows:
a) Hacking or cracking which refers to unauthorized access into or
interference in a computer system/server or information and
communication system; or any access in order to corrupt, alter, steal, or
destroy using a computer or other similar information and communication
devices, without the knowledge and consent of the owner of the computer
or information and communications system, including the introduction of
computer viruses and the like, resulting on the corruption, destruction,
alteration, theft or loss of electronic data messages or electronic
documents shall be punished by a minimum fine of One hundred thousand
pesos (P100,000.00) and a maximum commensurate to the damage
incurred and a mandatory imprisonment of six (6) months to three (3)
years.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed Orders
of the Regional Trial Court and the Decision of the Court of Appeals are REVERSED
and SET ASIDE. The Regional Trial Court is directed to issue an order granting the
motion of the petitioner to quash the Amended Information.
SO ORDERED.
YnaresSantiago and AustriaMartinez, JJ., concur.
Panganiban, C. J., (Chairman), No part. Former council of a party.
ChicoNazario, J., on leave.
[1] Penned by Associate Justice Bienvenido L. Reyes, with Associate Justices Roberto
A. Barrios and Edgardo F. Sundiam, concurring.
[2] AN ACT FURTHER AMENDING ACT NO. 3436, AS AMENDED, "xxx CONSOLIDATING
THE TERMS AND CONDITIONS OF THE FRANCHISE GRANTED TO [PLDT], AND
EXTENDING THE SAID FRANCHISE BY TWENTYFIVE (25) YEARS FROM THE
EXPIRATION THEREOF xxx."
[3] Rollo, pp. 129130.
[4] Id. at 131.
[5] Id. at 131, 137.
[6] Id.
[7] Id. at 138.
[8] Id. at 134.
[9] Id. at 140.
[10] Id. at 142146.
[11] Rollo, pp. 243246.
[12] NOW, THEREFORE, I FERDINAND E. MARCOS, President of the Philippines, by
virtue of the powers vested in me by the Constitution a CommanderinChief of all the
Armed Forces of the Philippines, and pursuant to Proclamation No. 1081 dated
September 21, 1972, and General Order No. 1 dated September 22, 1972, as
amended, do hereby order and decree that any person who installs any water,
electrical or telephone connection without previous authority from the Metropolitan
Waterworks and Sewerage System, the Manila Electric Company or the Philippine
Long Distance Telephone Company, as the case may be; tampers and/or uses
tampered water or electrical meters or jumpers or other devices whereby water or
electricity is stolen; steals or pilfers water and/or electric meters or water, electric
and/or telephone wires; knowingly possesses stolen or pilfered water and/or
electrical meters as well as stolen or pilfered water, electrical and/or telephone wires,
shall, upon conviction, be punished by prision correccional in its minimum period or a
fine ranging from two thousand to six thousand pesos, or both. If the violation is
committed with the connivance or permission of an employee or officer of the
Metropolitan Waterworks and Sewerage System, or the Manila Electric Company, or
the Philippine Long Distance Telephone Company, such employee or officer shall, upon
conviction, be punished by a penalty one degree lower than prision correccional in its
minimum period and forthwith be dismissed and perpetually disqualified from
employment in any public or private utility or service company.
[13] Rollo, pp. 5758. (Underscoring supplied)
[14] Id. at 6776.
[15] Id. at 69. (Emphasis supplied)
[16] Id. at 7780.
[17] Id. at 8186.
[18] 31 Phil. 494 (1915).
[19] Rollo, pp. 8794.
[20] 44 Phil. 933, 935 (1922).
[21] CA rollo, p. 6.
[22] Id. at 911.
[23] Id.
[24] Id.
[25] Resolution No. 149, Series of 1999 dated April 16, 1999 (I.S. No. 963884), rollo,
pp. 9597.
[26] Id.
[27] Id. at 3247.
[28] 21 Phil. 553 (1911).
[29] Supra note 20, at 935.
[30] Rollo, pp. 1819.
[31] Id. at 689.
[32] Id. at 691.
[33] Id. at 669670.
[34] Rollo, p. 670.
[35] Madarang v. Court of Appeals, G.R. No. 143044, July 14, 2005, 463 SCRA 318, 327
(2005).
[36] G.R. No. 148156, September 27, 2004, 439 SCRA 202 (2000).
[37] Id. at 211.
[38] Section 9, Rule 110 of the Revised Rules of Criminal Procedure.
[39] People v. Weg, 450 N.Y.S.2d 957 (1982).
[40] Clines v. Commonwealth, 298 S.W. 1107 (1927).
[41] Santiago v. Garchitorena, G.R. No. 109266, December 2, 1993, 228 SCRA 214.
[42] Garcia v. Court of Appeals, 334 Phil. 621, 634 (1997); People v. Navarro, 75 Phil.
516, 518 (1945).
[43] Section 3(a), Rule 117 of the 2000 Rules of Criminal Procedure.
[44] United States v. Wiltberger, 18 U.S. 76 (1820).
[45] Dowling v. United States, 473 U.S. 207 (1985).
[46] Liparota v. United States, 105 S. Ct. 2084 (1985).
[47] Kelley v. State, 119 N.E.2d 322 (1954); State v. McGraw, 480 N.E.2d 552 (1985).
[48] United States v. Wiltberger, supra note 44.
[49] Dowling v. United States, supra note 45.
[50] Viada, CODIGO PENAL REFORMADO DE 1870, CONCORDADO Y COMENTADO, 219.
The felony has the following elements:
(1) Apoderamiento de una cosa mueble; (2) Que la cosa mueble sea ajena; (3) Que
el apoderamiento se verifique con intención de lucro; (4) Que se tome la cosa sin la
voluntad de su dueño; (5) Que se realice el apoderamiento de la cosa sin violencia
intimidación en las personas ni fuerza en las cosas (Viada, 220221).
[51] People v. Sison, 379 Phil. 363, 384 (2000); People v. Bustinera, G.R. No. 148233,
June 8, 2004, 431 SCRA 284, 291.
[52] Cuello Callon, Derecho Penal, Tomo II, p. 724.
[53] Id.
[54] See note 52, p. 725. (Underscoring supplied)
[55] 36 C.J.S. 737.
[56] People v. Ashworth, 222 N.Y.S. 24 (1927).
[57] People v. Salvilla, G.R. No. 86163, April 26, 1990, 184 SCRA 671, 677 (1990).
[58] Harris v. State, 14 S.W. 390 (1890).
[59] Woods v. People, 78 N.E. 607 (1906).
[60] Villacorta v. Insurance Commission, G.R. No. 54171, October 28, 1980, 100 SCRA
467.
[61] Supra note 28.
[62] 41 Phil. 364 (1921).
[63] 11 N.E.2d 403 (1937).
[64] 29 N.E. 808 (1892). (Emphasis supplied)
[65] Supra note 59 (Emphasis supplied)
[66] Doggett v. Burnet, 65 F.2d 191 (1933).
[67] Black's Law Dictionary, 5th ed., p. 179; Union League Club v. Johnson, 108 P.2d
487, 490 (1940).
[68] United States v. McCraken, 19 C.M.R. 876 (1955).
[69] People v. Tansey, 593 N.Y.S. 2d 426 (1992).
[70] People v. Case, 42 N.Y.S. 2d 101.
[71] Commonwealth v. Gerulis, 616 A.2d 686 (1992).
[72] Rollo, p. 138.
[73] Commonwealth v. Gerulis, supra note 71.
[74] Central Power and Light Co. v. State, 165 S.W. 2d 920 (1942).
[75] Black's Law Dictionary, p. 1227.
[76] Lund v. Commonwealth, 232 S.E.2d 745 (1977); 50 Am. Jur. 2d Larceny, p. 83.
[77] Imbau, Thomson, Moenssens, Criminal Law, Second Edition, p. 6247, 2 Wharton
Criminal Law, Prodded , §604:369.
[78] Id. at 746; Commonwealth v. Rivera, 583 N.E.2d 867 (1991).
[79] People v. Tansey, supra note 69.
[80] See note 76.

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[67] Black's Law Dictionary, 5th ed., p. 179; Union League Club v. Johnson, 108 P.2d

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