Case Analysis Tile: Laurel v. Abrogar (483 SCRA 243) G.R. No. 155076, February 27, 2006 2006 I-PARTIES Philippine Long Distance Telephone Company (PLDT)-Private respondent(the petitioner in the initial proceeding) HON. ZEUS C. ABROGAR, Presiding Judge of the Regional Trial Trial Court, Makati City, Ci ty, Branch 150 whose decision is sought to be reversed in the case. -Respondent Luis Marcos P. Laurel board member and corporate secretary secretary of Baynet Co., Ltd. (Baynet)now Petitioner(one of the respondent or co-accused in the case filed by PLDT)
II-PRIOR PROCEEDINGS An information was filed by the state prosecutor impleading Laurel and other respondents of theft under Article 308 of RPC. Accused Laurel filed a "Motion to Quash (with Motion to Defer Arraignment)". The RTC issued an Order denying the Motion to Quash the Amended Information. RTC also denied his Motion for Reconsideration. Laurel then filed a Petition for Certiorari with the CA, assailing the Order of the RTC. The CA dismissed the petition. Laurel, now the petitioner, assails the decision of the CA before the SC.
III-THEORIES OF THE PARTIES PLDT claims that herein herein petitioner petitioner together with his co-accused co-accused conspired conspired together in order to steal and use the international long distance calls belonging to PLDT by conducting International Simple Resale Resale (ISR), which is a method of routing routing and completing completing international international long distance 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 with out the priors consent. Laurel Laurel however however alleged alleged that the teleph telephone one calls with the use of PLDT PLDT teleph telephone one lines, whether domestic or international, belong to the persons making the call, not to PLDT. He argued that that the the calle allerr mer merely ely uses ses the the faci facili liti ties es of PLDT, LDT, and and what what the the latt latter er owns owns are are the 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 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, anything, represents represents the rental for the use of PLDT facilities, facilities, and not the value of anything owned by it.
IV-OBJECTIVE OF THE PARTIES PLDT wishes for the petitioner to be impleaded for committing theft and the loss they've suffered be respectively reimbursed or returned to them. Laurel Laurel on the other hand, prays that the motion to quash be granted as the factual factual basis of herein private repondent as stated in their complaint does not fall within the ambit of Art. 308 of the RPC.
V-KEY FACTS >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. Under said law, law, PLDT PLDT is auth author oriz ized ed to esta establ blis ish, h, oper operat ate, e, mana manage ge,, leas lease, e, main mainta tain in and and pur purchas chase e teleco telecommun mmunica ication tion systems systems,, includi including ng transmi transmitti tting, ng, recei receiving ving and switchi switching ng stations stations,, for both both domestic and international calls. >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 >One such alternative alternative calling service is that offered by Baynet Co., Ltd. (Baynet) (Baynet) which sells "Bay Super uper Ori Orient ent Car Card" phon phone e car cards to peo people ple who who call call thei theirr frie friend nds s and and relat elativ ive es in the the Philippines.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, whic which h is then then conne connect cted ed to PLDT PLDT tele telepho phone ne lines lines/n /num umbe bers rs and equi equipme pment nt,, with with Bayne Baynett 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 evad evade e paym paymen entt of acce access, ss, term termina inatio tion n or bypas bypass s char charge ges s and and acco account untin ing g rate rates, s, as well 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. >After conducting the requisite preliminary investigation, the State Prosecutor filed an Amended Inform Informatio ation n impleadi impleading ng Laure Laurell (a partne partnerr in the law firm firm of Ingles Ingles,, Laure Laurel, l, Salinas, Salinas, and, until until November 19, 1999, a member of the board of directors and corporate secretary of Baynet), and the other other member members s of the board board of direct directors ors of said corporatio corporation, n, namely namely,, Yuji Hijioka Hijioka,, Yasushi asushi Ueshima, Mukaida, Lacson and Villegas, as accused for theft under Article 308 of the Revised Penal Code. >Laurel moved to quash said complaint as the property (service/business)contemplated by herein private respondent is not the one embraced in ART 308 of RPC nor any special law for that matter. Laurel further cited the Resolution of the Secretary of Justice in Piltel v. Mendoza,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 identification number (MIN), electronic-int electronic-internati ernational onal mobile equipment equipment identity identity (EMEI/IMEI (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." Thus, Laurel concluded, "there is no crime if there is no law punishing the crime." >The RTC as well as the CA however dismissed his motion. Thus he filed a motion for certiorari before the SC alleging the following: the respondent judge gravely abused his discretion in denying his Motion to Quash the Amended Information. 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." property."
VI-ISSUE WHETHER OR NOT THE PROPERTY CONTeMPLATED BY HEREIN PRIVATE RESPONDENT FALLS WITHIN THE AMBIT OF ART. ART. 308 OF RPC, thus no network fraud exist.
VII-HOLDING NO, THE KIND OF PERSONAL PROPERTY CONTEMPLATED BY SAID ARTICLE DOES NOT COVER THE 'BUSINESS OR SERVICE' SERVICE' RENDERED BY BY PRIVA PRIVATE RESPONDENT. RESPONDENT.
VIII-RATIODECIDENDI The court finds that the international telephone calls placed by Bay Super Orient Card holder holders, s, the teleco telecommu mmunic nicatio ation n servic services es provid provided ed by PLDT PLDT and its busine business ss of provid providing ing said services services are not personal personal properties properties under Article Article 308 of the Revised Revised Penal Code. The rule is that, penal laws are to be construed strictly. It is Congress, not the Court, which is to define a crime,
and and orda ordain in its its puni punish shme ment nt.. Due Due resp respec ectt for for the the prer prerog ogat ativ ive e of Cong Congre ress ss in defi defini ning ng crimes/felonies crimes/felonies constrains the Court to refrain from a broad interpretation interpretation of penal laws where a "narrow interpretation" is appropriate. And only when the congressional purpose is unclear that court my rule on its lenity. 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. For one to be guilty of theft, the accused must have an intent to steal (animus furandi)
personal property, 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 informa information tion or complai complaint nt for simple theft theft must allege allege the following following elements: 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. One is apt to conclude that "personal property" standing alone, covers both tangible and intangi intangible ble proper propertie ties s and are are subjec subjectt of theft theft under under the Revised Revised Penal Penal Code. 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. According to Cuello Callon, in the context context of the Penal Code, only those movable properties 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. 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. 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. 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.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.Neither asportation nor actual manual possession of property is required. Constructive possession of the thief of the property is enough. Taking 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.
Gas Gas an and d elec electr tric ical al ener energy gy shoul should d not not be equa equate ted d with with bu busi sine ness ss or serv servic ices es 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 employ employed. ed. Busine Business ss ma may y also also mean mean emplo employm yment ent,, occupa occupatio tion n or profes professio sion. n. Busi Bu sine ness ss is also also defi define ned d as a comm commer erci cial al ac acti tivi vity ty for for ga gain in bene benefi fitt or ad adva vant ntag age. e. 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 were othe otherw rwis ise, e, as clai claime med d by the the resp respon onde dent nts, s, ther there e woul would d be no juri juridi dica call difference between the taking of the business of a person or the services provided by him him for for ga gain in,, visvis-àà-vi vis, s, the the taki taking ng of good goods, s, wa ware res s or merc merchan handi dise se,, or equi equipm pmen entt comp compri risi sing ng his his bu busi sine ness. ss. If it wa was s its its inte intent ntio ion n to incl includ ude e "bus "busin ines ess" s" as pers person onal al 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. 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 occupation or appropriatio appropriation n by the respondent respondent PLDT or even the petitioner, for that PLDT merel merely y transm transmits its the electr electroni onic c voice voice signal signals s throug through h its facili facilitie ties s and matter. PLDT
equipment. Baynet Card Ltd., through its operator, merely intercepts, reroutes the calls and passes them to its toll center. Examini ning ng fore foreig ign n statut statutes es,, the the cour courts ts foun found d that that other other state states s OBITERDICTUM? In Exami specif specifical ically ly includ included ed “busine “business/ ss/ser servic vices” es” to be one of a “perso “personal nal proper property” ty” as impleme implemente nted d therein. In the Philippines, Congress has not amended the Revised Penal Code to include theft of servic services es or theft theft of busine business ss as felonie felonies. s. Instead Instead,, it approv approved ed a law, Republi Republic c Act Act No. No. 8484, 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, pers person onal al iden identi tifi fica cati tion on numb number er and and othe otherr tele teleco comm mmun unic icat atio ion n serv servic ices es,, equi equipm pmen entt or instrumentalities-identifier 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 fleeing thereafter; thereafter; and of effecting effecting transactions 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.
IX-DISPOSITION Petition is granted. The assailed decision of RTC and CA is hereby reversed and ser aside. The Regional Trial Trial Court is directed to issue an order granting the motion of the petitioner to t o quash the Amended Information.
