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.
FACTS:
On or about September 10-19, 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.
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 callers 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 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 co-accused of PLDT services was with intent to gain and without the latters consent.
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 movants 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.
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
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 PLDTs business of providing international calls is
personal property which may be the object of theft.
ISSUES:
Whether or not international telephone calls using Bay Super Orient Cards through the
telecommunication services provided by PLDT for such calls, or, in short, PLDTs business of
providing said telecommunication services, are proper subjects of theft under Article 308 of the
Revised Penal Code;

HELD:
NO. 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

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 latters consent.
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

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

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 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
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.
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.
.