G.R. No.

118533 October 4, 1995

MAYOR PABLO R. OLIVAREZ, petitioner,

vs.
HON. SANDIGANBAYAN (Second Division) and the HON. OMBUDSMAN, Special Prosecutor
ANIANO DESIERTO and Deputy Special Prosecutor JOSE DE G. FERRER, respondents.

REGALADO, J.:

In this original action for certiorari and prohibition, petitioner Mayor Pablo R. Olivarez seeks to annul the
following:

1. Resolution dated February 9, 1994 issued by Special Prosecutor (SP) Aniano Desierto
and approved by Ombudsman Conrado M. Vasquez on February 15, 1994 reversing
Special Prosecution Officer (SPO) I Cornelio Somido's recommendation to dismiss the
case against petitioner; 1

2. Resolution dated December 9, 1994 issued by Deputy Special Prosecutor (DSP) Jose
De G. Ferrer and approved by Ombudsman Conrado Vasquez on December 23, 1994
reversing SPO III Angel Mayoralgo's recommendation to withdraw the case against
petitioner for insufficiency of evidence; 2and

3. Resolution dated January 16, 1995 issued by the Sandiganbayan denying petitioner's
Motion to Strike Out and/or Review Result of Reinvestigation conducted by the Office of
the Ombudsman.3

The facts are succinctly summarized in the Comment4 of the Solicitor General as follows:

1. On December 15, 1992, Baclaran Credit Cooperative, Inc. (BCCI), through its board
member Roger de Leon, charged petitioner Paraaque Mayor Dr. Pablo R. Olivarez with
Violation of the Anti-Graft and Corrupt Practices Act for unreasonably refusing to issue a
mayor's permit despite request and follow-ups to implement Paraaque Sangguniang
Bayan Resolution No. 744, Series of 1992 which petitioner himself approved on October
6, 1992. Resolution No. 744 authorized BCCI to set up a night manufacturer's fair during
the Christmas fiesta celebration of and at Baclaran for 60 days from November 11, 1992
to February 15, 1993 for which they will use a portion of the service road of Roxas
Boulevard from the corner of Opena to Rivera Streets (Annex "D", Petition). Attached to
the affidavit-complaint were: (i) a letter dated October 29, 1992 of Councilor Winnie
Esplana to Arch. Vita of Paraaque Engineering Department;
(ii) four letters all dated November 13, 1992 of BCCI General Manager Mr. Steve Espina
to petitioner, Arch. Vita, Municipal Health Officer
Dr. Oscar de Leon and Municipal Treasurer Silvestre de Leon requesting assistance for
the issuance of a mayor's permit; (iii) Letter dated November 24, 1992 of BCCI counsel
Atty. Renato Dilag to petitioner formally demanding implementation of Res. 744 (Annex
"H"); (iv) petitioner's reply letter dated November 27, 1992 to Atty. Dilag stating among
others that the non-implementation of Res. 744 was due to BCCI's failure to apply for
appropriate permit and license to operate the Night Manufacturer's Fair which was one of
the conditions in the authorization (Annex "I").

2. On March 12, 1993, petitioner filed his counter-affidavit stating that the charge of
violation of Sec. 3(f) of RA 3019 has no legal and factual basis because (a) HCCI, which
actually started operation, never applied for a mayor's permit as evidenced by his letter
reply to
Atty. Dilag and the affidavit dated March 11, 1993 of Business Permit and License Office
Officer-In-Charge Mrs. Elenita T. Paracale (Annex "J"). Moreover, the four letters of Mr.
Steve Espina requesting assistance in the issuance of mayor's permit were not filed with
the municipal office concerned.

3. In his Reply Affidavit dated April 1, 1993, complainant BCCI denied conducting actual
operations but only commenced soliciting participants and would-be sponsors to the fair.
Allegedly, BCCI exerted all possible efforts to secure the necessary permit but petitioner
simply refused to issue the same unless it gives money to petitioner. Attached to the
Reply-Affidavit was a copy of Executive Order dated Nov. 23, 1992 issued by petitioner
granting a group of Baclaran-based organizations/associations of vendors the holding of
"Christmas Agro-Industrial Fair sa Baclaran" from November 28, 1992 to February 28,
1993 using certain portions of the National and Local Government Roads/Streets in
Baclaran for fund raising (Annex "L").

4. Graft Investigation Officer (GIO) III Rogelio A. Ringpis conducted a preliminary

investigation and issued on September 22, 1993 a resolution recommending the
prosecution of petitioner for violation of Sec. 3(f) of R.A. No. 3019 as amended. The
recommendation was approved by EPIB Head Raul Arnau and endorsed by Assistant
Ombudsman Abelardo L. Aportadera to Special Prosecutor (SP) Aniano Desierto for
review and possible preparation of criminal information. The endorsement was duly noted
by Over-all Deputy Ombudsman Francisco A. Villa.

5. On December 22, 1993, Special Prosecutor (SP) II Luz L. Quinones-Marcos, upon

review of the Ringpis resolution, recommended the filing of information against petitioner
for violation of Sec. 3(e) instead of Sec. 3(f) of R.A. 3019. The recommendation was
approved by
Deputy Special Prosecutor (DSP) Jose De G. Ferrer and SP Desierto. On January 11,
1994, Ombudsman Conrado Vasquez approved the report and recommendation and
directed the government prosecutors to file the necessary information against petitioner
with the Sandiganbayan.

6. The Information for Violation of Sec. 3(e) of R.A. 3019 filed on February 16, 1994 and
docketed as Criminal Case No. 20226, reads as follows:

That in or about the month of November, 1992 or for sometime prior

thereto, in the Municipality of Paraaque, Metro Manila, Philippines, and
within the jurisdiction of this Honorable Court, the above-named
accused, a public officer being then the duly elected Municipal Mayor of
Paraaque, Metro Manila, with manifest partiality and evident bad faith in
the exercise of his administrative and official functions, did then and
there wilfully, unlawfully and criminally, without valid reason, refuse to
issue a mayor's permit and/or refuse to act favorably on the application
of the Baclaran Credit Cooperative, Inc. (BCCI) to operate a "night fair"
along the service road of Roxas Boulevard (Baclaran) for a period of
sixty (60) days in accordance with Resolution No. 744 series of 1992 of
the Municipal Council of Paraaque, and that instead the accused issued
and signed an executive order on November 23, 1992 granting an
unknown or unidentified group of Baclaran-based
organizations/associations of vendors the privilege to operate a "night
fair" at certain portions of the national and local roads/streets in
Baclaran, thus, causing undue injury to the Baclaran Credit Cooperative,
Inc.
 CONTRARY TO LAW.

(Annex "P").

7. On January 17, 1994, petitioner filed a Motion for Reconsideration and/or

Reinvestigation allegedly to rectify error of law and on ground of newly discovered
evidence (Annex "O"). Although opposed by the prosecution on January 24, 1994, the
same was granted.

8. On February 7, 1994, Special Prosecu(tion) Officer (SPO) I Cornelio Somido to whorn

the reinvestigation was assigned, issued an order recommending the withdrawal of the
information against petitioner for insufficiency of evidence. This recommendation
approved by DSP de G. Ferrer was however disapproved by SP Desierto noting that:

Respondent does not refute the allegation and evidence that

complainant and representative approached him and he refused to issue
the permit despite follow up. Neither does respondent claim that in
refusing to issue the permit, he advised complainant and representatives
that they had failed to comply with requirements. Bad faith is, therefore,
evident in the respondent's persistent refusal to issue permit.

On February 9, 1994, Ombudsman Vasquez concurred with Special Prosecutor Desierto

and disapproved the recommendation (Annex "A").

9. On February 18, 1994, petitioner voluntarily surrendered and posted a cash bail bond
with the Sandiganbayan for his temporary release.

10. On February 21, 1994, petitioner filed an Omnibus Motion for a re-examination and
re-assessment of the prosecution's report and documentary evidence with a view to set
aside the determination of the existence of probable cause and ultimately the dismissal of
the case (Annex "Q").

11. On March 3, 1994, the Sandiganbayan, after finding that sufficient probable cause
exist(s) against petitioner, denied for lack of merit petitioner's Omnibus Motion in open
court and proceeded to arraign him as scheduled that day. But in view of petitioner's
refusal to enter any plea, the court ordered a plea of "not guilty" entered into his record.

12. On March 8, 1994, the prosecution filed a Motion to suspend Accused Pendente Lite.

13. On March 9, 14 and 15, 1994, petitioner filed a Motion to Set Aside Plea and To
Reduce Denial Order Into Writing (With Entry of Appearance) (Annex "R"), Supplemental
Motion to Set Aside Plea and Opposition to Motion to Suspend Accused and
Supplemental Pleading with Additional Opposition to Motion to Suspend Accused (Annex
"S"), respectively. Petitioner sought the following relief, to wit:

a) to set aside plea of "not guilty" entered for him by the court during the
arraignment on March 3, 1994;

b) to dismiss the case after a re-study of probable cause;

c) to order preliminary investigation for violation of Section 3(e) of R.A.

3019;.
 d) to deny the motion for suspension.

14. On March 23, 1994, the prosecution opposed the supplemental motions and prayed
that the denial of petitioner's Omnibus Motion be maintained.

15. On April 4, 1994, the Sandiganbayan denied petitioner's motion but in the interest of
justice and to avoid further delay in the prompt adjudication of the case due to
technicalities, it set aside the proceedings conducted on March 3, 1994 including
petitioner's arraignment thus revoking the plea of "not guilty" entered in his record. The
arraignment was set to April 7, 1994 but further action on the prosecution's motion to
suspend petitioner pendente lite was deferred, without prejudice to the reiteration or
revival thereof at the proper time and upon notice (Annex "T").

16. On April 20, 1994, petitioner filed a motion for reconsideration which was granted on
May 15, 1994 (Annex "V"). Consequently, the case was remanded to the Office of the
Ombudsman for another reinvestigation to be terminated within 30 days from notice.
Petitioner's arraignment was again reset to July 13, 1994 in the event of adverse
resolution on the re-investigation.

17. During this reinvestigation, petitioner filed a Memorandum with Additional Evidence to
SP(O) III Berbano to whom the case was assigned (Annex "W"). Meantime, several
scheduled arraignments were deferred on the ground that the reinvestigation has not
been terminated and, later, the recommendation has yet to be acted upon by superior
officers.

18. On September 23, 1994, SPO III Roger Berbano, Sr. issued a memorandum
recommending the withdrawal of the Information on the ground that no probable cause
exist(s) to indict petitioner for violation of Section 3(e) of R.A. (3019). He alleged that to
grant an exclusive mayor's permit demanded by BCCI will subject petitioner to liability for
violation of R.A. 3019 for giving unwarranted benefit to BCCI. Moreover, BCCI failed to
show compliance with the requirements of Res. 744, hence petitioner had all the reasons
to refuse issuance of mayor's permit. Also,
the issuance of Executive Order dated November 23, 1992 allowing Baclaran-based
vendors associations to hold a night fair did not in any manner cause injury to BCCI as
the authority given to them under Res. 744 was not exclusive. Petitioner merely
considered the best interest of the municipality.

19. On October 3, 1994, complainant Manuel A. Vizcarra, formally requested the

Ombudsman to disqualify SP(O) Berbano on the ground of lack of confidence, bias and
undue delay in the reinvestigation of the case.

20. The reinvestigation was reassigned to SPO III Angel C. Mayoralgo who on November
3, 1994 recommended the dismissal of the case stating that petitioner "cannot be held
liable for violation of either Section 3(f), the original charge, or Section 3(e), R.A. 3019,
the pending charge against Mayor Olivarez, because he neither neglect[ed]/refuse[d] to
act without sufficient justification on the letter request addressed to him, nor acted
through manifest partiality, evident bad faith or gross inexcusable negligence causing
undue injury to BCCI. If ever the latter sustained injury for the non-implementation of
Council Resolution No. 744, S-92, the same is due to the fault and indiscretion of its
officers."

21. On December 9, 1994, DSP de G. Ferrer reversed the recommendation with the
following observation:
 Even discounting evident bad faith on the part of respondent for the sake
of argument, he is liable under Sec. 3(e) of R.A. 3019 by giving
unwarranted benefit THRU MANIFEST PARTIALITY, to another group
on the flimsy reason that complainant failed to apply for a business
permit.

The merits of respondent's justification (insufficient as it is) should be

passed upon by the court.

(Annex "B")

The reversal was concurred (in) by SP Desierto and approved by Ombudsman Vasquez,
who on December 27, 1994, directed the prosecution to proceed under the existing
information.

22. On January 13, 1995, petitioner filed a Motion for Issuance of Subpoena Duces
Tecum and Ad Testificandum to DSP Jose de G. Ferrer, SPO III Roger Berbano, Sr., and
SPO III Angel Mayoralgo, Jr.

23. On January 16, 1995, petitioner filed a Motion to Strike Out and/or Review Result of
Reinvestigation praying that:

(a) the Ombudsman's Resolution of January 9, 1995 sustaining his

original finding that probable cause (exists) against petitioner be stricken
off the record;

(b) the information be dismissed

(c) or in the alternative, for the court to review Ombudsman's finding of

probable cause against him" (Annex "X").

24. On January 16, 1995, the motion was denied by respondent Sandiganbayan. . . .
(Corrections in parentheses supplied.)

Hence, this petition.

Petitioner assails the discretionary power of the Ombudsman to review the recommendations of the
government prosecutors and to approve or disapprove the same through a mere marginal note, without
conducting another preliminary investigation. Similarly, petitioners fault respondent Sandiganbayan for,
allegedly in grave abuse of discretion, refusing to review the finding of the Ombudsman that there exists
probable cause to hold petitioner liable for violation of Republic Act No. 3019, considering that the
Ombudsman did not comply with the guidelines set forth by respondent court in the conduct of the
reinvestigation.

We shall first deal with the propriety or impropriety of the questioned marginal notes, dated February 9,
1994 and December 9, 1994, issued by then Special Prosecutor Aniano Desierto (now Ombudsman) and
Deputy Special Prosecutor Jose de G. Ferrer, respectively. Petitioner contends that these marginal notes
are null and void on the ground that the same were issued without the benefit of a new preliminary
investigation and that the findings therein were not based on the facts and the evidence presented. It is
likewise averred that the above-named government prosecutors were engaging in a fishing expedition
when they changed theories, that is, from "evident bad faith" to "manifest partiality," but only after the
Sandiganbayan had issued a Resolution declaring that the original finding of bad faith was unwarranted.
After a careful scrutiny of the issues raised in the petition for certiorari, the arguments in support thereof,
as well as the comments of the public respondents thereon, we are not convinced that herein public
respondents acted with grave abuse of discretion or without or in excess of jurisdiction.

The mere fact that the order to file the information against petitioner was contained in a marginal note is
not sufficient to impute arbitrariness or caprice on the part of respondent special prosecutors, absent a
clear showing that they gravely abused their discretion in disapproving the recommendation of the
investigating prosecutors to dismiss or withdraw the case against petitioner. Neither are these marginal
notes tainted with or indicative of vindictiveness or arbitrariness as imputed by petitioner. Public
respondents disapproved the recommendation of the investigating prosecutors because they sincerely
believed that there is sufficient evidence to indict the accused.

The Ombudsman's conformity thereto is but an exercise of his powers based upon constitutional mandate
and the courts should not interfere in such exercise. The rule is based not only upon respect for the
investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but
upon practicality as well. Otherwise, the functions of the courts will be grievously hampered by
innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the
Ombudsman with regard to complaints filed before it, in much the same way that the courts would be
extremely swamped if they could be compelled to review the exercise of discretion on the part of the
fiscals or prosecuting attorneys each time they decide to file an information in court or dismiss a complaint
by a private complainant.5

It may be true that, on the face thereof, the marginal notes seem to lack any factual or evidentiary basis
for failure to specifically spell out the same. However, that is not all there is to it. What is actually involved
here is a situation wherein, on the bases of the same findings of fact of the investigating prosecutors,
respondent special prosecutors were of the opinion that, contrary to the former's recommendation,
petitioner is probably guilty of the offense charged. Obviously, therefore, since it is merely a review of the
conclusions arrived at by the investigating prosecutor, another or a new preliminary investigation is no
longer necessary.

The case of Cruz, Jr. vs. People, et al., 6 which involves substantially the same issues, has ruled on the
matter in this wise:

It may seem that the ratio decidendi for the Ombudsman's order may be wanting but this
is not a case of a total absence of factual and legal bases nor a failure to appreciate the
evidence presented. What is actually involved here is merely a review of the conclusion
arrived at by the investigating prosecutor as a result of his study and analysis of the
complaint, counter-affidavits, and the evidence submitted by the parties during the
preliminary investigation. The Ombudsman here is not conducting anew another
investigation but is merely determining the propriety and correctness of the
recommendation given by the investigating prosecutor, that is, whether probable cause
actually exists or not, on the basis of the findings of the latter. Verily, it is discretionary
upon the Ombudsman if he will rely mainly on the findings of fact of the investigating
prosecutor in making a review of the latter's report and recommendation, as the
Ombudsman can very well make his own findings of fact. There is nothing to prevent him
from acting one way or the other. As a matter of fact, Section 4, Rule 112 of the Rules of
Court provides that "where the investigating assistant fiscal recommends the dismissal of
the case but his findings are reversed by the provincial or city fiscal or the chief state
prosecutor on the ground that a probable cause exists, the latter may, by himself, file the
corresponding information against the respondent or direct any other assistant fiscal or
state prosecutor to do so, without conducting another preliminary investigation."

With more reason may the Ombudsman not be faulted in arriving at a conclusion different
from that of the investigating prosecutor on the basis of the same set of facts. It cannot
be said that the Ombudsman committed a grave abuse of discretion simply because he
 opines contrarily to the prosecutor that, under the facts obtaining in the case, there is
probable cause to believe that herein petitioner is guilty of the offense charged.

. . . (f)rom the tenor of respondent Ombudsman's statement, it is clear that he agreed with
the findings of facts of the investigating prosecutor but disagreed with the latter's
conclusion on the import and significance of said findings. On the basis of the findings of
fact of the investigating prosecutor, which were not disputed by petitioner, respondent
Ombudsman believed that there was sufficient ground to engender a well-founded belief
that a crime had been committed and that petitioner is probably guilty thereof. (Italics in
the original text.)

The alleged shift in theory from "evident bad faith" to "manifest partiality" fails to present a sufficient
indicium that respondent prosecutors gravely abused their discretion. Manifest partiality, evident bad faith
and gross inexcusable negligence are but elements of the offense defined in and punishable under
Section 3(e) of Republic Act No. 3019 for which petitioner stands charged. The presence or absence of
the elements of the crime are evidentiary in nature and are matters of defense, the truth of which can be
best passed upon after a full-blown trial on the merits. Thus, the issue of whether there was bad faith or
manifest partiality on the part of petitioner should best be determined, not in the preliminary investigation,
but during the trial proper.7

It must here be stressed that a preliminary investigation is essentially inquisitorial, and it is often the only
means of discovering the persons who may be seasonably charged with a crime, to enable the
prosecutor to prepare his complaint or information It is not a trial of the case on the merits and has no
purpose except that of determining whether a crime has been committed and whether there is probable
cause to believe that the accused is guilty thereof, and it does not place the persons against whom it is
taken in jeopardy. It is not the occasion for the full and exhaustive display of the parties' evidence; it is for
the presentation of such evidence only as may engender a well-grounded belief that an offense has been
committed and that the accused is probably guilty thereof. 8

Consequently, petitioner's asseveration that the reinvestigation is null and void because the respondent
prosecutors failed to consider all the evidence presented in his defense has no leg to stand on. A perusal
of the records will show that all the documentary evidence, as well as the additional documents submitted
by petitioner during the reinvestigation, were thoroughly examined and fully evaluated in the
determination of probable cause.

Probable cause, as explained in the aforecited case of Pilapil, is

. . . a reasonable ground of presumption that a matter is, or may be, well founded, such a
state of facts in the mind of the prosecutor as would lead a person of ordinary caution
and prudence to believe, or entertain an honest or strong suspicion, that a thing is so.
The term does not mean "actual and positive cause" nor does it import absolute certainty.
It is merely based on opinion and reasonable belief. Thus, a finding of probable cause
does not require an inquiry into whether there is sufficient evidence to procure a
conviction. It is enough that it is believed that the act or omission complained of
constitutes the offense charged. Precisely, there is a trial for the reception of evidence of
the prosecution in support of the charge.

Whether an act was done causing undue injury to the government and whether the same
was done with manifest partiality or evident bad faith can only be made out by proper and
sufficient testimony. Necessarily, a conclusion can be arrived at when the case has
already proceeded on sufficient proof.

. . . the court should not be guided by the rule that accused must be shown to be guilty
beyond a reasonable doubt, but rather whether there is sufficient evidence which inclines
 the mind to believe, without necessarily leaving room for doubt, that accused is guilty
thereof.9

We have meticulously analyzed the arguments raised by the parties in the various pleadings and motions,
together with their documentary evidence, which all formed the basis for the issuance of the questioned
resolutions, and we are convinced that there exists probable cause as to warrant the filing of charges
against herein petitioner for a violation of Section 3(e) of Republic Act
No. 3019.

Petitioner's main defense is that BCCI was not issued a mayor's permit by reason of its failure to apply
therefor and to comply with the conditions set forth in Sangguniang Bayan Resolution No. 744. There are
several flaws to this argument.

First. The purported absence of an application for the issuance of a permit is actually more apparent than
real. Initially, petitioner claims that he could not grant a permit to BCCI, which was allegedly demanding
an exclusive authority to operate, on the pretext that he can be held liable for a violation of Republic Act
No. 3019 for giving unwarranted benefits to BCCI to the detriment of other Baclaran-based vendors'
associations. Subsequently, but in the same vein, petitioner tries to justify the issuance of an executive
order granting a permit to the unidentified Baclaran-based vendors' associations, in that the same did not
cause injury to BCCI since the authority to operate given to the latter is not exclusive.

It would appear, therefore, that petitioner had taken it upon himself to categorize and determine the
exclusivity or non-exclusivity of the authority to operate granted to BCCI, depending on whether or not it
would suit his purpose or predilection. The inconsistent stand taken by petitioner with regard to the true
character of BCCI's authority to operate is indeed quite perplexing and suffices to cast sufficient doubt on
the real motive behind the non-issuance of the required permit.

Second. It is asserted that the executive order granting a permit to the Baclaran-based vendors'
associations was issued by petitioner supposedly in the best interest of the municipality as evidenced by
its earnings from the night fair in the total amount of P13,512,948.00. While the avowed purpose may
prove noble, still it miserably pales in contrast to what appears to be bad faith or manifest partiality on the
part of petitioner in refusing to grant a permit to BCCI. Petitioner could not plausibly demonstrate how the
issuance of a permit to BCCI would so adversely affect public interest as to warrant its denial. On the
contrary, the Sangguniang Bayan of Paraaque had even passed a resolution, which notably was
approved by herein petitioner, expressly allowing BCCI to hold the night fair. This is concrete proof that
the grant of authority to operate in favor of BCCI was not at all contrary to law and public policy, nor was it
prejudicial to public interest.

Petitioner's suspected partiality may be gleaned from the fact that he issued a permit in favor of the
unidentified Baclaran-based vendors' associations by the mere expedient of an executive order, whereas
so many requirements were imposed on BCCI before it could be granted the same permit. Worse,
petitioner failed to show, in apparent disregard of BCCI's right to equal protection, that BCCI and the
unidentified Baclaran-based vendors' associations were not similarly situated as to give at least a
semblance of legality to the apparent haste with which said executive order was issued. It would seem
that if there was any interest served by such executive order, it was that of herein petitioner.

Petitioner likewise submits that no permit could be issued because BCCI never filed an application
therefor with the proper office, that is, the Business Permit and Licensing Office. This is actually begging
the question. It is not denied that on November 13, 1992, BCCI, through its general manager, wrote
petitioner requesting for a permit to operate, but this was rejected outright by him on the theory that the
application should be made with the proper municipal official. The indifference shown by petitioner to
BCCI's application taints his actuations with dubiety.
As the mayor of the municipality, the officials referred to were definitely under his authority and he was
not without recourse to take appropriate action on the letter-application of BCCI although the same was
not strictly in accordance with normal procedure. There was nothing to prevent him from referring said
letter-application to the licensing department, but which paradoxically he refused to do. Whether petitioner
was impelled by any material interest or ulterior motive may be beyond us for the moment since this is a
matter of evidence, but the environmental facts and circumstances are sufficient to create a belief in the
mind of a reasonable man that this would not be completely improbable, absent countervailing
clarification.

Lastly, it may not be amiss to add that petitioner, as a municipal mayor, is expressly authorized and has
the power to issue permits and licenses for the holding of activities for any charitable or welfare purpose,
pursuant to Section 444 (b) (3) (iv and v) of the Local Government Code of 1991 (Republic Act No. 7160).
Hence, he cannot really feign total lack of authority to act on the letter-application of BCCI..

On the basis of the foregoing, we are reasonably convinced that there is enough evidence to warrant the
filing of a formal charge in court against herein petitioner for a violation of Section 3(e) of Republic Act No.
3019.

Considering that the findings of fact by the Office of the Ombudsman are supported by substantial
evidence, the same should be considered conclusive. Furthermore, the Ombudsman's findings are
essentially factual in nature. Accordingly, in assailing said findings on the contention that the Ombudsman
committed a grave abuse of discretion in holding that petitioner is liable for the offense charged, the
petition at bar clearly raises questions of fact. The arguments therein are anchored on the propriety of or
error in the Ombudsman's appreciation of the facts of the case.

Petitioner cannot be unaware of our oft-repeated injunction that this Court is not a trier of facts, more so in
an application for the extraordinary writ of certiorari where neither questions of fact nor even of law are
entertained, since only questions of lack or excess of jurisdiction or grave abuse of discretion are
authorized. 10 On this issue, therefore, we find that no grave abuse of discretion has been committed by
respondents which would warrant the granting of the writ of certiorari, especially where the circumstances
attending the recourse therefor are strongly suggestive of dilatory purposes.

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.
People vs Medel Tangliben

G.R. No. L-63630

April 6, 1990

Facts:

On or about the March 2, 1982, in the municipality of San Fernando, Province of Pampanga,
Philippines, accused MEDEL TANGLIBEN y BERNARDINO, knowing fully well that Marijuana
is a prohibited drug; have in his possession, control and custody one (1) bag of dried
marijuana leaves with an approximate weight of one (1) kilo. He transported to Olongapo City,
without authority of law to do so.

In his defense, the married accused with one child, declared that he was able to meet Nena
Ballon at 6:00 o'clock in the evening and he stayed in Nena's house up to 8:00 o'clock
because he had a drinking spree with Nena's son. He failed to catch the 8:00 o'clock trip to
Manila from Olongapo City but was able to take the bus only by 9:00 o'clock that evening on
a Victory Liner Bus, already tipsy, he did not notice that the bus was only bound for San
Fernando, Pampanga.

Upon alighting at the Victory Liner Compound at San Fernando, Pampanga he crossed the
street to wait for a bus going to Manila. While awaiting for a bus, a man whom he came to
know later as Patrolman Punzalan, approached him and asked him if he has any residence
certificate. When he took out his wallet, Pat. Punzalan got the wallet and took all the money
inside the wallet amounting to P545.00 and told him he'll be taken to the municipal building
for verification as he may be an NPA member. In the police station, Pat. Silverio Quevedo
took the marijuana from him, promised that it shall be returned to him but that it was never
returned to him; thereafter, he was placed under detention and was told to him that he is
being charged with possession of marijuana and if he would like to be bailed out. When his
wife visited him, he told her that Patrolman Silverio Quevedo took away all his money and not
to complain anymore since would be useless.

Issue:

Whether the accused violated Section 4, Article II of the Dangerous Drugs Act of 1972 as
amended?
Held:

No. The appeal from the decision of the Regional Trial Court, Branch 41, Third Judicial
Region at San Fernando, Pampanga, Branch 41, found appellant Tangliben guilty beyond
reasonable doubt of violating Section 4, Article II of Republic Act 6425 (Dangerous Drugs Act
of 1972 as amended) and sentencing him to life imprisonment, to pay a fine of P20,000 and to
pay the costs.

Limited Defense

The appellant chose to limit his defense to his own testimony. He could have availed himself
through compulsory court processes of several witnesses to buttress his defense. Since not
one other witness was presented nor was any justification for the non-appearance given, the
inadequacy of his lone and uncorroborated testimony remains. It cannot prevail vis-a-vis the
positive testimonies given by the prosecution witnesses.

Evidence

The dried marijuana leaves found in the possession of the accused weighs one (1) kilo, more
or less. The intent to transport the same is clear from the testimony of Pat. Silverio Quevedo
who declared, among other things, that when he confronted the accused that night, the latter
told him that he (accused) is bringing the marijuana leaves to Olongapo City. Moreover,
considering the quantity of the marijuana leaves found in the possession of the accused and
the place he was arrested which is at San Fernando, Pampanga, a place where the accused is
not residing, it can be said that the intent to transport the marijuana leaves has been clearly
established.

Conviction of a crime with an extremely severe penalty must be based on evidence which is
clearer and more convincing than the inferences in this case. What was therefore proved
beyond reasonable doubt is not his intent to transport the marijuana leaves but his actual
session
G.R. No. L-63630 April 6, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MEDEL TANGLIBEN Y BERNARDINO, defendant-appellant.

The Office of the Solicitor General for plaintiff-appellee.

Katz N. Tierra for defendant-appellant.

GUTIERREZ, JR., J.:

This is an appeal from the decision of the Regional Trial Court, Branch 41, Third Judicial Region at
San Fernando, Pampanga, Branch 41, finding appellant Medel Tangliben y Bernardino guilty beyond
reasonable doubt of violating Section 4, Article II of Republic Act 6425 (Dangerous Drugs Act of
1972 as amended) and sentencing him to life imprisonment, to pay a fine of P20,000 and to pay the
costs.

The information filed against the appellant alleged:

That on or about the 2nd day of March, 1982, in the municipality of San Fernando, Province
of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused MEDEL TANGLIBEN y BERNARDINO, knowing fully well that Marijuana is
a prohibited drug, did then and there willfully, unlawfully and feloniously have his possession,
control and custody one (1) bag of dried marijuana leaves with an approximate weight of one
(1) kilo and to transport (sic) the same to Olongapo City, without authority of law to do so. (At
p. 6, Rollo)

The prosecution's evidence upon which the finding of guilt beyond reasonable doubt was based is
narrated by the trial court as follows:

It appears from the evidence presented by the prosecution that in the late evening of March
2, 1982, Patrolmen Silverio Quevedo and Romeo L. Punzalan of the San Fernando Police
Station, together with Barangay Tanod Macario Sacdalan, were conducting surveillance
mission at the Victory Liner Terminal compound located at Barangay San Nicolas, San
Fernando, Pampanga; that the surveillance was aimed not only against persons who may
commit misdemeanors at the said place but also on persons who may be engaging in the
traffic of dangerous drugs based on informations supplied by informers; that it was around
9:30 in the evening that said Patrolmen noticed a person caring a traveling bag (Exhibit G)
who was acting suspiciously and they confronted him; that the person was requested by
Patrolmen Quevedo and Punzalan to open the red traveling bag but the person refused, only
to accede later on when the patrolmen identified themselves; that found inside the bag were
marijuana leaves (Exhibit B) wrapped in a plastic wrapper and weighing one kilo, more or
less; that the person was asked of his name and the reason why he was at the said place
and he gave his name as Medel Tangliben and explained that he was waiting for a ride to
Olongapo City to deliver the marijuana leaves; that the accused was taken to the police
headquarters at San Fernando, Pampanga, for further investigation; and that Pat. Silverio
Quevedo submitted to his Station Commander his Investigator's Report (Exhibit F).
 It appears also from the prosecution's evidence that in the following morning or on March 3,
1982, Pat. Silverio Quevedo asked his co-policeman Pat. Roberto Quevedo, who happens to
be his brother and who has had special training on narcotics, to conduct a field test on a little
portion of the marijuana leaves and to have the remaining portion examined by the PCCL at
Camp Olivas, San Fernando, Pampanga; that Pat. Roberto Quevedo conducted a field test
(Exhibit H) on the marijuana leaves and found positive result for marijuana (Exhibit E); that
the remaining bigger quantity of the marijuana leaves were taken to the PCCL at Camp
Olivas by Pat. Roberto Quevedo that same day of March 3, 1982 (Exhibit A and A-1) and
when examined, the same were also found to be marijuana (Exhibit C and C-1). (At pp. 9-
10, Rollo)

Only the accused testified in his defense. His testimony is narrated by the trial court as follows:

The accused declared that he got married on October 25, 1981 and his wife begot a child on
June 10, 1982; that he was formerly employed in the poultry farm of his uncle Alejandro
Caluma in Antipolo, Rizal; that he is engaged in the business of selling poultry medicine and
feeds, including chicks, and used to conduct his business at Taytay, Rizal; that he goes to
Subic at times in connection with his business and whenever he is in Subic, he used to buy
C-rations from one Nena Ballon and dispose the same in Manila; that he never left his
residence at Antipolo, Rizal, on March 2, 1982; that on March 3, 1982, he went to Subic to
collect a balance of P100.00 from a customer thereat and to buy C-rations; that he was able
to meet Nena Ballon at 6:00 o'clock in the evening and he stayed in Nena's house up to 8:00
o'clock because he had a drinking spree with Nena's son; that he tried to catch the 8:00
o'clock trip to Manila from Olongapo City but he failed and was able to take the bus only by
9:00 o'clock that evening that it was a Victory Liner Bus that he rode and because he was
tipsy, he did not notice that the bus was only bound for San Fernando, Pampanga; that upon
alighting at the Victory Liner Compound at San Fernando, Pampanga he crossed the street
to wait for a bus going to Manila; that while thus waiting for a bus, a man whom he came to
know later as Pat. Punzalan, approached him and asked him if he has any residence
certificate; that when he took out his wallet, Pat. Punzalan got the wallet and took all the
money inside the wallet amounting to P545.00; that Pat. Punzalan told him that he'll be taken
to the municipal building for verification as he may be an NPA member; that at the municipal
building, he saw a policeman, identified by him later as Pat. Silverio Quevedo, sleeping but
was awakened when he arrived that Pat. Quevedo took him upstairs and told him to take out
everything from his pocket saying that the prisoners inside the jail may get the same from
him; that inside his pocket was a fifty-peso bill and Pat. Quevedo took the same, telling him
that it shall be returned to him but that it was never returned to him; that he was thereafter
placed under detention and somebody told him that he is being charged with possession of
marijuana and if he would like to be bailed out, somebody is willing to help him; and, that
when he was visited by his wife, he told his wife that Patrolman Silverio Quevedo took away
all his money but he told his wife not to complain anymore as it would be useless. (Rollo, pp.
10-11)

Appellant, through counsel de oficio Atty. Enrique Chan, raised the lone assignment of error in his
appeal:

THE COURT A QUO ERRED IN CONVICTING THE ACCUSED-APPELLANT AND

FINDING HIM GUILTY OF THE CRIME CHARGED ON INSUFFICIENT AND DOUBTFUL
EVIDENCE. (At p. 48, Rollo)

The Solicitor-General likewise filed his brief, basically reiterating ating the lower court's findings.
However, before this Court had the chance to act on appeal, counsel de oficio Atty. Enrique Chan
died. Thereafter, this court appointed a new counsel de oficio, Atty. Katz Tierra and pursuant thereto,
the Deputy Clerk of Court, in behalf of the Clerk of Court, required the new counsel to file her
appellant's brief. The latter complied and, in her brief, raised the following assignment of errors:

THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE THE PACKAGE OF

MARIJUANA ALLEGEDLY SEIZED FROM DEFENDANT-APPELLANT AS IT WAS A
PRODUCT OF AN UNLAWFUL SEARCH WITHOUT A WARRANT.

II

THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE THE ALLEGED PACKAGE

OF MARIJUANA LEAVES AS THE LEAVES SUPPOSEDLY SEIZED FROM ACCUSED
WHEN IT WAS NEVER AUTHENTICATED.

III

THE LOWER COURT ERRED IN NOT RULING THAT THE PROSECUTION FAILED TO
PROVE THE GUILT OF DEFENDANT-APPELLANT. (At pp. 92-93, Rollo)

It is contended that the marijuana allegedly seized from the accused was a product of an unlawful
search without a warrant and is therefore inadmissible in evidence.

This contention is devoid of merit.

One of the exceptions to the general rule requiring a search warrant is a search incident to a lawful
arrest. Thus, Section 12 of Rule 126 of the 1985 Rules on Criminal Procedure provides:

Section 12. Search incident to a lawful arrest. A person lawfully arrested may be searched
for dangerous weapons or anything which may be used as proof of the commission of an
offense, without a search warrant.

Meanwhile, Rule 113, Sec. 5(a) provides:

. . . A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing,
or is attempting to commit an offense.

Accused was caught in flagrante, since he was carrying marijuana at the time of his arrest. This case
therefore falls squarely within the exception. The warrantless search was incident to a lawful arrest
and is consequently valid.

In the case of People v. Claudia, 160 SCRA 646, [1988] this Court, confronted with the same issue,
held that:

Appellant Claudio was caught transporting prohibited drugs. Pat. Daniel did not need a
warrant to arrest Claudio as the latter was caught in flagrante delicto. The warrantless search
 being an incident to a lawful arrest is in itself lawful. (Nolasco V. Pao, 147 SCRA 509).
Therefore, there was no infirmity in the seizure of the 1.1 kilos of marijuana.

We are not unmindful of the decision of this Court in People v. Amininudin, 163 SCRA 402 [1988]. In
that case the PC officers had earlier received a tip from an informer that accused-appellant. was on
board a vessel bound for Iloilo City and was carrying marijuana. Acting on this tip, they waited for
him one evening, approached him as he descended from the gangplank, detained him and
inspected the bag he was carrying. Said bag contained marijuana leaves. The Court held that the
marijuana could not be admitted in evidence since it was seized illegally. The records show,
however, that there were certain facts, not sing in the case before us, which led the Court to declare
the seizure as invalid. As stated therein:

The present case presented no such urgency From the conflicting declarations of the PC
witnesses, it is clear that they had at react two days within which they could have obtained a
warrant of arrest and search Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His
name was known. The vehicle was identified. The date of its arrival was certain. And from
the information they had received, they could have persuaded a judge that there was
probable cause, indeed, to justify the issuance of a warrant. Yet they did nothing. No effort
was made to comply with the law. The Bill of Rights was ignored altogether because the PC
lieutenant who was the head of the arresting team, had determined on his own authority that
a "search warrant was not necessary."

In contrast, the case before us presented urgency. Although the trial court's decision did not mention
it, the transcript of stenographic notes reveals that there was an informer who pointed to the
accused-appellant as carrying marijuana. (TSN, pp. 52-53) Faced with such on-the-spot information,
the police officers had to act quickly. There was not enough time to secure a search warrant. We
cannot therefore apply the ruling in Aminnudin to the case at bar. To require search warrants during
on-the-spot apprehensions of drug pushers, illegal possessors of firearms, jueteng collectors,
smugglers of contraband goods, robbers, etc. would make it extremely difficult, if not impossible to
contain the crimes with which these persons are associated.

Accused-appellant likewise asserts that the package of marijuana leaves supposedly seized from
him was never authenticated and therefore should not have been admitted as evidence. He
capitalizes on the fact that the marijuana package brought by patrolman Roberto Quevedo to the PC
Crime Laboratory for examination did not contain a tag bearing the name of the accused. We rule,
however, that since Patrolman Quevedo testified that he gave the marijuana package together with a
letter-request for examination, and the forensic chemist Marilene Salangad likewise testified that she
received the marijuana together with the letter-request and said letter-request bore the name of the
accused, then the requirements of proper authentication of evidence were sufficiently complied with.
The marijuana package examined by the forensic checklist was satisfactorily identified as the one
seized from accused.

Even assuming arguendo that the marijuana sent to the PC Crime Laboratory was not properly
authenticated, still, we cannot discount the separate field test conducted by witness Roberto
Quevedo which yielded positive results for marijuana.

Lastly, the appellant claims that the evidence upon which he was convicted was insufficient and
doubtful and that the prosecution failed to prove his guilt.

In attacking the sufficiency of evidence, the appellant avers that the informer should have been
presented before the lower court. We discard this argument as a futile attempt to revive an already
settled issue. This Court has ruled in several cases that non-presentation of the informer, where his
testimony would be merely corroborative or cumulative, is not fatal to the prosecution's case.
(People v. Asio, G.R. No. 84960, September 1, 1989; (People v. Viola, G.R. No. 64262, March 16,
1989; People v. Capulong, 160 SCRA 533 [1988]; People v. Cerelegia, 147 SCRA 538).

As to doubtfulness of evidence, well-settled is the rule that findings of the trial court on the issue of
credibility of witnesses and their testimonies are entitled to great respect and accorded the highest
consideration by the appellate court. Since credibility is a matter that is peculiarly within the province
of the trial judge, who had first hand opportunity to watch and observe the demeanor and behavior of
witnesses both for the prosecution and the defense at the time of their testimony (People v. Tejada,
G.R. No. 81520, February 21, 1989; People v. Turla, 167 SCRA 278), we find no reason to disturb
the following findings:

The testimony of prosecution witnesses Patrolmen Silverio Quevedo and Romeo Punzalan
are positive and sufficiently clean to show the commission by the accused of the offense
herein chatted. These prosecution witnesses have no motive to fabricate the facts and to
foist a very serious offense against the accused. The knowledge on what these witnesses
testified to were (sic) acquired by them in the official performance of their duties and then,
(sic) being no showing that they are prejudiced against the accused, their testimonies
deserve full credit.

The testimonies of the afore-mentioned petitioner that what they found in the possession of
the accused were marijuana leaves were corroborated by the examination findings
conducted by Pat. October to Salangad of the PCCL, with station at camp Olivas, San
Fernando, Pampanga (Exhibits C and C-1). (Rollo, p. 11)

Moreover, if there is truth in the testimony of the accused to the effect that Pat. Punzalan got
all the money from his wallet when he was accosted at the Victory Liner Terminal and was
told just to keep quiet otherwise he will be "salvaged" why will Pat. Punzalan still bring the
accused to the municipal Building for interrogation and/or verification? Would not Pat.
Punzalan be exposing his identity to the accused? This is unnatural. And this is also true on
the testimony to the accused that Pat. Silverio Quevedo got his fifty-peso bill arid never
returned the same to him. If the policemen really got any money from the accused and that
the marijuana leaves do not belong to the accused, why will the two policemen still produce
in Court as evidence that expensive-looking traveling red bag (Exhibit G) taken from the
accused and which contained the marijuana in question if the instant case is a mere
fabrication?

As already stated, all the evidence, oral and documentary, presented by the prosecution in
this case were all based on personal knowledge acquired by the prosecution witnesses in
the regular performance of their official duties and there is nothing in their testimonies to
show that they are bias (sic) or that they have any prejudice against the herein accused.
Between the testimonies of these prosecution witnesses and that of the uncorroborated and
self-serving testimony of the accused, the former should prevail. (Rollo, p. 13)

Likewise, the appellant chose to limit his defense to his own testimony. He could have availed
himself through compulsory court processes of several witnesses to buttress his defense. Since not
one other witness was presented nor was any justification for the non-appearance given, the
inadequacy of his lone and uncorroborated testimony remains. It cannot prevail vis-a-vis the positive
testimonies given by the prosecution witnesses.

Moreover, the appellant's having jumped bail is akin to flight which, as correctly observed by the
lower court, is an added circumstance tending to establish his guilt.
We take exception, however, to the trial court's finding that:

The dried marijuana leaves found in the possession of the accused weighs one (1) kilo, more
or less. The intent to transport the same is clear from the testimony of Pat. Silverio Quevedo
who declared, among other things, that when he confronted the accused that night, the latter
told him that he (accused) is bringing the marijuana leaves to Olongapo City. Moreover,
considering the quantity of the marijuana leaves found in the possession of the accused and
the place he was arrested which is at San Fernando, Pampanga, a place where the accused
is not residing, it can be said that the intent to transport the marijuana leaves has been
clearly established. (Rollo, pp. 13-14)

The alleged extrajudicial confession of the accused which, on the other hand, he categorically
denied in court, that he is transporting the marijuana leaves to Olongapo City cannot be relied upon.
Even assuming it to be true, the extrajudicial confession cannot be admitted because it does not
appear in the records that the accused, during custodial investigation, was apprised of his rights to
remain silent and to counsel and to be informed of such rights. In People v. Duero 104 SCRA 379
[1981], the Court pronounced that "inasmuch as the prosecution failed to prove that before Duero
made his alleged oral confession he was informed of his rights to remain silent and to have counsel
and because there is no proof that he knowingly and intelligently waived those rights, his confession
is inadmissible in evidence. This ruling was reiterated in People v. Tolentino, 145 SCRA 597 [1986],
where the Court added that:

In effect, the Court not only abrogated the rule on presumption of regularity of official acts
relative to admissibility of statements taken during in-custody interrogation but likewise
dispelled any doubt as to the full adoption of the Miranda doctrine in this jurisdiction. It is now
incumbent upon the prosecution to prove during a trial that prior to questioning, the
confessant was warned of his constitutionally protected rights.

The trial judge likewise found the marijuana to weigh one kilo, more or less, and from this finding
extracted a clear intent to transport the marijuana leaves. It may be pointed out, however, that
although the information stated the weight to be approximately one kilo, the forensic chemist who
examined the marijuana leaves testified that the marijuana weighed only 600 grams Such amount is
not a considerable quantity as to conclusively confer upon the accused an intent to transport the
marijuana leaves.

Nor can it be said that the intent to transport is clearly established from the fact that the accused was
arrested at San Fernando, Pampanga, a place which is not his residence. Conviction of a crime with
an extremely severe penalty must be based on evidence which is clearer and more convincing than
the inferences in this case.

What was therefore proved beyond reasonable doubt is not his intent to transport the marijuana
leaves but his actual session.

The offense committed by the appellant is possession of marijuana under Section 8 of Republic Act
No. 6425 (Dangerous Drugs Act of 1972 as amended).

WHEREFORE, the judgment of conviction by the trial court is hereby AFFIRMED but MODIFIED.
The appellant is sentenced to suffer the penalty of imprisonment ranging from six (6) years and one
(1) day to twelve (12) years and fine of Six Thousand (P6,000.00) Pesos.

SO ORDERED.
PEOPLE V. CHE CHUN TING
G.R. Nos. 130568-69. March 21, 2000
Warrantles searches and seizures
Fruit of the poisonous tree doctrine

Accused-appellant was charged and convicted for dispatching in transit and having in his
possession large amounts of shabu. He contends that the shabu is inadmissible in evidence as it
was seized without a valid search warrant.

Held:

The lawful arrest being the sole justification for the validity of the warrantless search under the
exception, the same must be limited to and circumscribed by the subject, time and place of the
arrest. As to subject, the warrantless search is sanctioned only with respect to the person of the
suspect, and things that may be seized from him are limited to dangerous weapons or anything
which may be used as proof of the commission of the offense. With respect to the time and place
of the warrantless search, it must be contemporaneous with the lawful arrest. Stated otherwise,
to be valid, the search must have been conducted at about the time of the arrest or immediately
thereafter and only at the place where the suspect was arrested, or the premises or surroundings
under his immediate control.

It must be stressed that the purposes of the exception are only to protect the arresting officer
against physical harm from the person being arrested who might be armed with a concealed
weapon, and also to prevent the person arrested from destroying the evidence within his reach.
The exception therefore should not be strained beyond what is needed in order to serve its
purposes.

As a consequence of the illegal search, the things seized on the occasion thereof are inadmissible
in evidence under the exclusionary rule. They are regarded as having been obtained from a
polluted source, the fruit of a poisonous tree. However, objects and properties the possession
of which is prohibited by law cannot be returned to their owners notwithstanding the illegality of
their seizure. Thus, the shabu seized by the NARCOM operatives, which cannot legally be
possessed by the accused under the law, can and must be retained by the government to be
disposed of in accordance with law.
G.R. Nos. 130568-69 March 21, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CHE CHUN TING alias "DICK," accused-appellant.

BELLOSILLO, J.:

CHE CHUN TING alias "DICK," a Hong Kong national, was found guilty by the trial court on 22
August 1997 of delivering, distributing and dispatching in transit 999.43 grams of shabu; 1 and,
having in his custody, possession and control 5,578.68 grams of the same regulated drug. 2 He was
meted two (2) death sentences, one for violation of Sec. 15 and the other for violation of Sec. 16,
both of Art. III, of RA 6425 (The Dangerous Drugs Act of 1972, as amended). 3 He was likewise
ordered to pay a fine of P1,000,000.00 in the first case, and P12,000,000.00 in the second. 4 He is
now before us on automatic review.

The antecedent facts: Following a series of buy-bust operations, the elements of the Special
Operation Unit, Narcotics Command, apprehended a suspected drug courier, Mabel Cheung Mei Po,
after she delivered a transparent plastic bag containing a white crystalline substance to an informant,
in full view of NARCOM agents. When questioned, Mabel Cheung Mei Po cooperated with the
government agents and revealed the name of accused Che Chun Ting as the source of the drugs.

On 27 June 1996 the Narcotics Command Deployed a team of agents for the entrapment and arrest
of Che Chun Ting. The team was composed of Major Marcelo Garbo, a certain Captain
Campos, 5 P/Insp. Raymond Santiago, SPO3 Renato Campanilla, and a civilian interpreter. The
member of the NARCOM team were in two (2) vehicles: a Nissan Sentra Super Saloon driven by
Mabel with P/Insp. Santiago, SPO3 Campanilla as passengers; and the other vehicle, with Major
Garbo, Captain Campos and the civilian interpreter on board. At around 7 o'clock in the morning they
proceeded to the Roxas Seafront Garden in Pasay City where Che Chun Ting was and had the
place under surveillance. Later, they moved to the McDonald's parking lot where the civilian
interpreter transferred to the Nissan car. Mabel then called Che Chun Ting through her cellular
phone and spoke to him in Chinese. According to the interpreter, who translated to the NARCOM
agents the conversation between Mabel and Che Chun Ting, Mabel ordered one (1) kilo of shabu.

At around 10:30 o'clock in the morning of the same day, Mabel received a call from the accused that
he was ready to deliver the stuff. She immediately relayed the message to the NARCOM agents.
After receiving the go-signal from Major Garbo, P/Insp. Santiago, SPO3 Campanilla and Mabel
proceeded to the Roxas Seafront Garden. The other vehicle followed but trailed behind within
reasonable distance to serve as a blocking force.

Upon arriving at the Roxas Seafront Garden, Mabel honked twice and went to Unit 122. The two (2)
NARCOM agents, who waited inside the car parked two (2) meters away, saw the door of the unit
open as a man went out to hand Mabel a transparent plastic bag containing a white crystalline
substance. The NARCOM agents immediately alighted and arrested the surprised man who was
positively identified by Mabel as Che Chun Ting. Then the agents radioed their superiors in the other
car and coordinated with the security guard on duty at the Roxas Seafront Garden to make a search
of Unit 122. During the search SPO3 Campanilla seized a black bag with several plastic bags
containing a white crystalline substance in an open cabinet at the second floor. The bag was
examined in the presence of Major Garbo, the accused himself, and his girlfriend Nimfa Ortiz. The
accused together with the evidence was then brought to Camp Crame where Forensic Chemist P/Sr.
Inspector Julita T. de Villa after conducting laboratory tests found the white crystalline substance to
be positive for methylamphetamine hydrochloride or shabu. 6
The defense has a different version. Nimfa Ortiz narrated that she sent her brother Noli Ortiz to meet
Mabel Cheung Mei Po in front of the Allied Bank at the EDSA Extension to help the latter find a
lawyer and at the same time get the laser disc she lent to Mabel. Noli testified that when he go inside
the car of Mabel a policeman sitting at the back of the car suddenly hit him on the head. The car
then proceeded to McDonald's at Roxas Boulevard near the Roxas Seafront Garden where he was
moved to another car, a green Nissan Sentra, with Major Garbo, Captain Lukban, and a certain
Palma (perceived to be the civilian interpreter) on board. Mabel stayed behind at Mcdonald's until
she was brought back to Camp Crame.

Noli Ortiz, Major Garbo, Captain Lukban and Palma went to the Roxas Seafront Garden where they
parked the car five (5) to seven (7) meters away from Unit 122. Noli rang the doorbell of the unit.
When Nimfa opened the door, two (2) NARCOM officers suddenly forced their way inside and
searched the premises. Noli denied having seen any black bag seized by SPO3 Campanilla;
instead, what he saw was his sister's video camera being carted away by the NARCOM agents. He
further testified that when his sister was made to sign a certification on the conduct of the search on
Unit 122 she was frightened and crying. He claimed that accused Che Chun Ting was then asleep at
the second floor of the unit.

The defense presented documents showing that the owner of the Unit 122 was Nimfa Ortiz and not
the accused Che Chun Ting who lived at 1001 Domingo Poblete St., BF Homes Paranaque. 7 This
information, according to the defense, was vital for purposes of ascertaining the legality of the
search on Unit 122 as well as the seizure therein of a black bag containing several plastic bags of
shabu. Finally, the defense assailed the lower court for relying on the testimony of Mabel who turned
hostile witness in the course of the trial. 8

Accused Che Chun Ting now contends that the trial court erred: (a) in convicting him on the basis of
the shabu seized inside Unit 122, which was constitutionally inadmissible as evidence since it was
seized without a search warrant; (b) in failing to recognize that the testimony of Mabel Cheung Mei
Po, who turned hostile witness in the course of the trial, has discredited the prosecution case and
cast doubt on the testimonies of P/Insp. Santiago and SPO3 Campanilla; and, (c) in assuming that
the entire white crystalline substance seized is positive methylamphetamine hydrochloride.

We resolve. The 1987 Constitution ordains that no arrest, search or seizure can be made without a
valid warrant issued by a competent judicial authority. Thus

The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose, shall be
inviolable, and no search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination under oath or affirmation
of the complainant and the witnesses he may produce, and particularly describing the place
to be searched and the persons or things to be seized. 9

It further mandates that any evidence obtained in violation thereof shall be inadmissible for any
purpose in any proceeding. 10

The right is not absolute and admits of certain well-recognized exceptions. For instance, a person
lawfully arrested searched for dangerous weapons or anything which may be used as proof of the
commission of the offense, without a search warrant. 11 The search may extend beyond the person of
the one arrested to include the permissible area or surroundings within his immediate control. 12

The issue is whether this case falls within the exception.

The accused was admittedly outside unit 22 and in the act of delivering to Mabel Cheung Mei Po a
bag of shabu when he was arrested by the NARCOM operatives. Moreover, it is borne by the
records that Unit 122 was not even his residence but that of his girlfriend Nimfa Ortiz, and that he
was merely a sojourner therein. Hence, it can hardly be said that the inner portion of the house
constituted a permissible area within his reach or immediate control,13 to justify a warrantless search
therein.

The lawful arrest being the sole justification for the validity of the warrantless search under the
exception, the same must be limited to and circumscribed by the subject, time and place of the
arrest. As to subject, the warrantless search is sanctioned only with respect to the person of the
suspect, and things that may be seized from him are limited to "dangerous weapons" or ''anything
which may be used as proof of the commission of the offense." With respect to the time and place of
the warrantless search, it must be contemporaneous with the lawful arrest. Stated otherwise, to be
valid, the search must have been conducted at about the time of the arrest or immediately thereafter
and only at the place where the suspect was arrested, 14 or the premises or surroundings under his
immediate control.

It must be stressed that the purposes of the exception are only to protect the arresting officer against
physical harm from the person being arrested who might be armed with a concealed weapon, and
also to prevent the person arrested from destroying the evidence within his reach. 15 The exception
therefore should not be strained beyond what is needed in order to serve its purposes, as what the
Solicitor General would want us to do.

We therefore hold that the search in Unit 122 and the seizure therein of some 5,578.68 grams of
shabu do not fall within the exception, hence, were illegal for being violative of one's basic
constitutional right and guarantee against unreasonable searches and seizures.

As a consequence of the illegal search, the things seized on the occasion thereof are inadmissible in
evidence under the exclusionary rule. They are regarded as having been obtained from a polluted
source, the "fruit of a poisonous tree." However, objects and properties the possession of which is
prohibited by law cannot be returned to their owners notwithstanding the illegality of their seizure.
Thus, the shabu seized by the NARCOM operatives which cannot legally be possessed by the
accused under the law, can and must be retained by the government to be disposed of in
accordance with law.

Be that as it may, the inadmissibility of the 5,578.68 grams of shabu in evidence does not totally
exonerate the accused. The illegal search in Unit 122 was preceded by a valid arrest. The accused
was caught in flagrante delicto as a result of an entrapment conducted by NARCOM operatives on
the basis of the information provided by Mabel Cheung Mei Po regarding the accused's illegal trade.
NARCOM agents P/Insp. Santiago and SPO3 Campanilla saw him handing over a bag of white
crystalline substance to Mabel Cheung Mei Po. His arrest was lawful and the seized bag of shabu
weighing 999.43 grams was admissible in evidence, being the fruit of the crime.

The second assigned error hinges on the credibility of witnesses. As we have consistently stressed
in the majority of appeals in criminal cases, appellate courts give weight, and at times even finality,
to the findings of the trial judge who is in a better position to determine the credibility of witnesses, as
he can observe firsthand their demeanor and deportment while testifying. Appellate courts have
none of the judge's advantageous position; they rely merely on the cold records of the case and on
the judge's discretion.

As mentioned earlier, Mabel Cheung Mei Po turned hostile witness in the course of the trial. The
defense capitalized on such fact and hammered the prosecution on this point, arguing that Mabel's
testimony during her cross-examination virtually belied the prosecution's factual theory of the case
and the cast doubt on the testimony of the NARCOM agents.

But we are not persuaded. Mabel Cheung Mei Po turned hostile witness understandably because of
her adverse interest in the case. She was separately charged for violation of Sec. 15, Art. III, RA
6425, 16 although she was subsequently acquitted by the trial court on reasonable doubt. 17 It is
therefore to be expected that she would be extremely cautious in giving her testimony as it might
incriminate her. At any rate, the testimony of the police informant in an illegal drug case is not
essential for the conviction of the accused since that testimony would merely be corroborative and
cumulative. 18 Hence, even if we concede that Mabel Cheung Mei Po's testimony was discredited on
account of the dismissal of the criminal case against her, the prosecution could still rely on the
testimonies of the arresting officers and secure a conviction on the basis thereof.

Further, the attempt of the accused to downgrade the testimonies of the NARCOM agents is bereft
of substantial basis since it has not been shown that they had an improper motive for testifying as
they did. It would not be amiss to point out that NARCOM agents are not just ordinary witnesses but
are law enforcers. As compared to the baseless disclaimers of the witnesses for the defense, the
narration of the incident of the police officers is far more worthy of belief coming as it does from law
enforcers who are presumed to have regularly performed their duty in the absence of proof to the
contrary. 19 From the evidence at hand, we find no reason to denigrate their declarations.

Indeed, there is no doubt from the records that the accused was caught in flagrante delicto, i.e., in
the act of delivering shabu. The evidence for the prosecution is both substantial and convincing. at
its core is the testimony of P/Ins. Santiago and SPO3 Campanilla who categorically pointed to the
accused as the person who handed to Mabel a plastic bag of white crystalline substance which,
upon forensic examination, was found positive for methylamphetamine hydrochloride or shabu. As
can be gleaned from the assailed decision of the trial court, the narration of events by the police
officers is positive, credible and entirely in accord with human experience. It bears all the earmarks
of truth that it is extremely difficult for a rational mind not to give credence to it. They testified in a
clear, precise and straightforward manner, and even the rigid cross-examination by the defense
could not dent the essence of their testimonies.

As regards the third assigned error, the accused questions the accuracy of the laboratory tests
conducted by the forensic chemist on the seized articles. He contends that the PNP Crime
Laboratory should have subjected the entire 999.43 grams and 5,578.66 grams of white crystalline
substance taken from him, to laboratory examination and not merely representative samples thereof
in milligrams.

The argument is untenable. Primarily, there is no law or rule of evidence requiring the forensic
chemist to test the entire quantity of seized drugs to determine whether the whole lot is really
prohibited or regulated drugs as suspected. On the contrary, it has always been the standard
procedure in the PNP Crime Laboratory to test only samples of the drugs submitted for laboratory
examination. A sample taken from a package may be logically presumed to be representative of the
whole contents of the package. 20

Moreover, we held in one case that chemical analysis is not an indispensable prerequisite to
establish whether a certain substance offered in evidence is a prohibited drug. The ability to
recognize these drugs can be acquired without any knowledge of chemistry to such an extent that
the testimony of a witness on the point may be entitled to great weight. Such technical knowledge is
not required, and the degree of familiarity of a witness with such drugs only affects the weight and
not the competency of his testimony. 21 1wphi1
At any rate, it was up to the defense to prove by clear and convincing evidence that the findings of
the forensic chemist were erroneous. In the absence of such evidence, the positive results of the
tests conducted by the chemist should be accepted as conclusive. After all, she has in her favor the
presumption that she regularly performed her official duty, which was to carry out those tests in
accordance with the accepted standard procedure. 22

All told, this Court is satisfied that the prosecution has established the guilt of the accused beyond
reasonable doubt in Crim. Case No. 96-8932. Accordingly, he must suffer for his serious crime of
poisoning the health and future of this nation. However, we refrain from imposing the capital
punishment. As amended by RA 7659, Sec. 20, Art. IV of The Dangerous Drugs Act now provides in
part that the penalty in Sec. 15, Art. III, shall be applied if the dangerous drug involved is, in the case
of shabu or methylamphetamine hydrochloride 200 grams or more and the delivery united efforts to
stem the surging tide of drug-trafficking in this country, the police force is not only expected to be
well-trained and well-equipped in the detection and apprehension of drug pushers, but more
importantly, it must also be aware that arrest, searches and seizures should at all times and in all
instances be done within the context of the Constitution. While we encourage an active and vigorous
law enforcement, we nevertheless deter to and uphold the sacredness of constitutional rights. In the
instant case, while the penalty of reclusion perpetua imposed by this Court on the accused may be
sufficient to put him away for good, it is nonetheless lamentable that he will walk away unpunished in
the other case of possession of more than 5,000 grams of illegal narcotics on account of a blunder
which could have easily been avoided had the NARCOM officers faithfully adhered to the
requirements of the Constitution.

WHEREFORE, the Decision of the trial court in Crim. Case No. 96-8932 convicting accused CHE
CHUN TING alias "DICK" for violation of Sec. 15, Art. III, of RA 6425 (The Dangerous Drugs Act of
1972, as amended) is AFFIRMED, subject to the modification that the penalty imposed by the trial
court is reduced to reclusion perpetua. The accused is ordered to pay a fine in the increased amount
of P2,000,000.00, and the cost.

In Crim. Case No. 96-8933, accused CHE CHUN TING alias "DICK" is ACQUITTED for failure of the
prosecution to prove his guilt beyond reasonable doubt the evidence against him being inadmissible.

The 999.43 grams and 5,578.68 grams of shabu, subject of Crim. Case Nos. 96-8932 and 96-8933
are FORFEITED in favor of the government to be turned over immediately to the Dangerous Drugs
Board and the National Bureau of Investigation for proper disposition.

SO ORDERED. 1