G.R. No.

155076

FIRST DIVISION
G.R. No. 155076 February 27, 2006
LUIS MARCOS P. LAUREL, Petitioner,
vs.
HON. ZEUS C. ABROGAR, Presiding Judge of
the Regional Trial Court, Makati City, Branch
150, PEOPLE OF THE PHILIPPINES&
PHILIPPINE LONG DISTANCE TELEPHONE
COMPANY, Respondents.
DECISION
CALLEJO, SR., J.:
Before us is a Petition for Review on Certiorari of the
Decision1 of the Court of Appeals (CA) in CA-G.R. SP
No. 68841 affirming the Order issued by Judge Zeus
C. Abrogar, Regional Trial Court (RTC), Makati City,
Branch 150, which denied the "Motion to Quash (With
Motion to Defer Arraignment)" in Criminal Case No.
99-2425 for theft.
Philippine Long Distance Telephone Company
(PLDT) is the holder of a legislative franchise to
render local and international telecommunication
services under Republic Act No. 7082.2 Under said
law, PLDT is authorized to establish, operate, manage,
lease, maintain and purchase telecommunication
systems, including transmitting, receiving and
switching stations, for both domestic and
international calls. For this purpose, it has installed
an estimated 1.7 million telephone lines nationwide.
PLDT also offers other services as authorized by
Certificates of Public Convenience and Necessity
(CPCN) duly issued by the National
Telecommunications Commission (NTC), and
operates and maintains an International Gateway
Facility (IGF). The PLDT network is thus principally
composed of the Public Switch Telephone Network
(PSTN), telephone handsets and/or
telecommunications equipment used by its
subscribers, the wires and cables linking said
telephone handsets and/or telecommunications
equipment, antenna, the IGF, and other
telecommunications equipment which provide
interconnections.3 1avvphil.net
PLDT alleges that one of the alternative calling
patterns that constitute network fraud and violate its
network integrity is that which is known as
International Simple Resale (ISR). ISR is a method of
routing and completing international long distance
calls using International Private Leased Lines (IPL),
cables, antenna or air wave or frequency, which
connect directly to the local or domestic exchange
facilities of the terminating country (the country
where the call is destined). The IPL is linked to
switching equipment which is connected to a PLDT
telephone line/number. In the process, the calls
bypass the IGF found at the terminating country, or in
some instances, even those from the originating
country.4
One such alternative calling service is that offered by
Baynet Co., Ltd. (Baynet) which sells "Bay Super
Orient Card" phone cards to people who call their
friends and relatives in the Philippines. With said
card, one is entitled to a 27-minute call to the
Philippines for about ¥37.03 per minute. After dialing
the ISR access number indicated in the phone card,
the ISR operator requests the subscriber to give the
PIN number also indicated in the phone card. Once
the caller’s identity (as purchaser of the phone card) is
confirmed, the ISR operator will then provide a
Philippine local line to the requesting caller via the
IPL. According to PLDT, calls made through the IPL
never pass the toll center of IGF operators in the
Philippines. Using the local line, the Baynet card user
is able to place a call to any point in the Philippines,
provided the local line is National Direct Dial (NDD)
capable.5
PLDT asserts that Baynet conducts its ISR activities
by utilizing an IPL to course its incoming
international long distance calls from Japan. The IPL
is linked to switching equipment, which is then
connected to PLDT telephone lines/numbers and
equipment, with Baynet as subscriber. Through the
use of the telephone lines and other auxiliary
equipment, Baynet is able to connect an international
long distance call from Japan to any part of the
Philippines, and make it appear as a call originating
from Metro Manila. Consequently, the operator of an
ISR is able to evade payment of access, termination or
bypass charges and accounting rates, as well as
compliance with the regulatory requirements of the
NTC. Thus, the ISR operator offers international
telecommunication services at a lower rate, to the
damage and prejudice of legitimate operators like
PLDT.6
PLDT pointed out that Baynet utilized the following
equipment for its ISR activities: lines, cables, and
antennas or equipment or device capable of
transmitting air waves or frequency, such as an IPL
and telephone lines and equipment; computers or any
equipment or device capable of accepting information
applying the prescribed process of the information
and supplying the result of this process; modems or
any equipment or device that enables a data terminal
equipment such as computers to communicate with
other data terminal equipment via a telephone line;
multiplexers or any equipment or device that enables
two or more signals from different sources to pass
through a common cable or transmission line;
switching equipment, or equipment or device capable
of connecting telephone lines; and software, diskettes,
tapes or equipment or device used for recording and
storing information.7
PLDT also discovered that Baynet subscribed to a
total of 123 PLDT telephone lines/numbers.8 Based on
the Traffic Study conducted on the volume of calls
passing through Baynet’s ISR network which bypass
the IGF toll center, PLDT incurred an estimated
monthly loss of P10,185,325.96.9 Records at the
Securities and Exchange Commission (SEC) also
revealed that Baynet was not authorized to provide
international or domestic long distance telephone
service in the country. The following are its officers:
Yuji Hijioka, a Japanese national (chairman of the
board of directors); Gina C. Mukaida, a Filipina
(board member and president); Luis Marcos P.
Laurel, a Filipino (board member and corporate
secretary); Ricky Chan Pe, a Filipino (board member
and treasurer); and Yasushi Ueshima, also a Japanese
national (board member).
Upon complaint of PLDT against Baynet for network
fraud, and on the strength of two search warrants10
issued by the RTC of Makati, Branch 147, National
Bureau of Investigation (NBI) agents searched its
office at the 7th Floor, SJG Building, Kalayaan
Avenue, Makati City on November 8, 1999. Atsushi
Matsuura, Nobuyoshi Miyake, Edourd D. Lacson and
Rolando J. Villegas were arrested by NBI agents while
in the act of manning the operations of Baynet. Seized
in the premises during the search were numerous
equipment and devices used in its ISR activities, such
as multiplexers, modems, computer monitors, CPUs,
antenna, assorted computer peripheral cords and
microprocessors, cables/wires, assorted PLDT
statement of accounts, parabolic antennae and voltage
regulators.
State Prosecutor Ofelia L. Calo conducted an inquest
investigation and issued a Resolution11 on January 28,
2000, finding probable cause for theft under Article
308 of the Revised Penal Code and Presidential
Decree No. 40112 against the respondents therein,
including Laurel.
On February 8, 2000, State Prosecutor Calo filed an
Information with the RTC of Makati City charging
Matsuura, Miyake, Lacson and Villegas with theft
under Article 308 of the Revised Penal Code. After
conducting the requisite preliminary investigation,
the State Prosecutor filed an Amended Information
impleading Laurel (a partner in the law firm of Ingles,
Laurel, Salinas, and, until November 19, 1999, a
member of the board of directors and corporate
secretary of Baynet), and the other members of the
board of directors of said corporation, namely, Yuji
Hijioka, Yasushi Ueshima, Mukaida, Lacson and
Villegas, as accused for theft under Article 308 of the
Revised Penal Code. The inculpatory portion of the
Amended Information reads:
On or about September 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.
CONTRARY TO LAW.13
Accused Laurel filed a "Motion to Quash (with Motion
to Defer Arraignment)" on the ground that the factual
allegations in the Amended Information do not
constitute the felony of theft under Article 308 of the
Revised Penal Code. He averred that the Revised
Penal Code, or any other special penal law for that
matter, does not prohibit ISR operations. He claimed
that telephone calls with the use of PLDT telephone
lines, whether domestic or international, belong to the
persons making the call, not to PLDT. He argued that
the caller merely uses the facilities of PLDT, and what
the latter owns are the telecommunication
infrastructures or facilities through which the call is
made. He also asserted that PLDT is compensated for
the caller’s use of its facilities by way of rental; for an
outgoing overseas call, PLDT charges the caller per
minute, based on the duration of the call. Thus, no
personal property was stolen from PLDT. According
to Laurel, the P20,370,651.92 stated in the
Information, if anything, represents the rental for the
use of PLDT facilities, and not the value of anything
owned by it. Finally, he averred that the allegations in
the Amended Information are already subsumed
under the Information for violation of Presidential
Decree (P.D.) No. 401 filed and pending in the
Metropolitan Trial Court of Makati City, docketed as
Criminal Case No. 276766.
The prosecution, through private complainant PLDT,
opposed the motion,14 contending that the movant
unlawfully took personal property belonging to it, as
follows: 1) intangible telephone services that are being
offered by PLDT and other telecommunication
companies, i.e., the connection and interconnection to
their telephone lines/facilities; 2) the use of those
facilities over a period of time; and 3) the revenues
derived in connection with the rendition of such
services and the use of such facilities. 15
The prosecution asserted that the use of PLDT’s
intangible telephone services/facilities allows
electronic voice signals to pass through the same, and
ultimately to the called party’s number. It averred that
such service/facility is akin to electricity which,
although an intangible property, may, nevertheless, be
appropriated and be the subject of theft. Such service
over a period of time for a consideration is the
business that PLDT provides to its customers, which
enables the latter to send various messages to
installed recipients. The service rendered by PLDT is
akin to merchandise which has specific value, and
therefore, capable of appropriation by another, as in
this case, through the ISR operations conducted by
the movant and his co-accused.
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 latter’s consent.
The prosecution pointed out that the accused, as well
as the movant, were paid in exchange for their illegal
appropriation and use of PLDT’s telephone services
and facilities; on the other hand, the accused did not
pay a single centavo for their illegal ISR operations.
Thus, the acts of the accused were akin to the use of a
"jumper" by a consumer to deflect the current from
the house electric meter, thereby enabling one to steal
electricity. The prosecution emphasized that its
position is fortified by the Resolutions of the
Department of Justice in PLDT v. Tiongson, et al. (I.S.
No. 97-0925) and in PAOCTF-PLDT v. Elton John
Tuason, et al. (I.S. No. 2000-370) which were issued
on August 14, 2000 finding probable cause for theft
against the respondents therein.
On September 14, 2001, the RTC issued an Order16
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 Reconsideration17 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 Order19 dated December 11, 2001, the RTC
denied the movant’s Motion for Reconsideration. This
time, it ruled that what was stolen from PLDT was its
"business" because, as alleged in the Amended
Information, the international long distance calls
made through the facilities of PLDT formed part of its
business. The RTC noted that the movant was charged
with stealing the business of PLDT. To support its
ruling, it cited Strochecker v. Ramirez,20 where the
Court ruled that interest in business is personal
property capable of appropriation. It further declared
that, through their ISR operations, the movant and
his co-accused deprived PLDT of fees for international
long distance calls, and that the ISR used by the
movant and his co-accused was no different from the
"jumper" used for stealing electricity.
Laurel then filed a Petition for Certiorari with the CA,
assailing the Order of the RTC. He alleged that the
respondent judge gravely abused his discretion in
denying his Motion to Quash the Amended
Information.21 As gleaned from the material averments
of the amended information, he was charged with
stealing the international long distance calls
belonging to PLDT, not its business. Moreover, the
RTC failed to distinguish between the business of
PLDT (providing services for international long
distance calls) and the revenues derived therefrom.
He opined that a "business" or its revenues cannot be
considered as personal property under Article 308 of
the Revised Penal Code, since a "business" is "(1) a
commercial or mercantile activity customarily
engaged in as a means of livelihood and typically
involving some independence of judgment and power
of decision; (2) a commercial or industrial enterprise;
and (3) refers to transactions, dealings or intercourse
of any nature." On the other hand, the term "revenue"
is defined as "the income that comes back from an
investment (as in real or personal property); the
annual or periodical rents, profits, interests, or issues
of any species of real or personal property."22
Laurel further posited that an electric company’s
business is the production and distribution of
electricity; a gas company’s business is the production
and/or distribution of gas (as fuel); while a water
company’s business is the production and distribution
of potable water. He argued that the "business" in all
these cases is the commercial activity, while the goods
and merchandise are the products of such activity.
Thus, in prosecutions for theft of certain forms of
energy, it is the electricity or gas which is alleged to be
stolen and not the "business" of providing electricity
or gas. However, since a telephone company does not
produce any energy, goods or merchandise and
merely renders a service or, in the words of PLDT,
"the connection and interconnection to their
telephone lines/facilities," such service cannot be the
subject of theft as defined in Article 308 of the
Revised Penal Code.23
He further declared that to categorize "business" as
personal property under Article 308 of the Revised
Penal Code would lead to absurd consequences; in
prosecutions for theft of gas, electricity or water, it
would then be permissible to allege in the Information
that it is the gas business, the electric business or the
water business which has been stolen, and no longer
the merchandise produced by such enterprise.24
Laurel further cited the Resolution of the Secretary of
Justice in Piltel v. Mendoza,25 where it was ruled that
the Revised Penal Code, legislated as it was before
present technological advances were even conceived,
is not adequate to address the novel means of
"stealing" airwaves or airtime. In said resolution, it
was noted that the inadequacy prompted the filing of
Senate Bill 2379 (sic) entitled "The Anti-
Telecommunications Fraud of 1997" to deter cloning
of cellular phones and other forms of communications
fraud. The said bill "aims to protect in number (ESN)
(sic) or Capcode, mobile identification number (MIN),
electronic-international mobile equipment identity
(EMEI/IMEI), or subscriber identity module" and
"any attempt to duplicate the data on another cellular
phone without the consent of a public
telecommunications entity would be punishable by
law."26 Thus, Laurel concluded, "there is no crime if
there is no law punishing the crime."
On August 30, 2002, the CA rendered judgment
dismissing the petition.27 The appellate court ruled
that a petition for certiorari under Rule 65 of the
Rules of Court was not the proper remedy of the
petitioner. On the merits of the petition, it held that
while business is generally an activity
which is abstract and intangible in form, it is
nevertheless considered "property" under Article 308
of the Revised Penal Code. The CA opined that PLDT’s
business of providing international calls is personal
property which may be the object of theft, and cited
United States v. Carlos28 to support such conclusion.
The tribunal also cited Strochecker v. Ramirez,29
where this Court ruled that one-half interest in a day’s
business is personal property under Section 2 of Act
No. 3952, otherwise known as the Bulk Sales Law. The
appellate court held that the operations of the ISR are
not subsumed in the charge for violation of P.D. No.
401.
Laurel, now the petitioner, assails the decision of the
CA, contending that -
THE COURT OF APPEALS ERRED IN RULING
THAT THE PERSONAL PROPERTY ALLEGEDLY
STOLEN PER THE INFORMATION IS NOT THE
"INTERNATIONAL LONG DISTANCE CALLS" BUT
THE "BUSINESS OF PLDT."
THE COURT OF APPEALS ERRED IN RULING
THAT THE TERM "BUSINESS" IS PERSONAL
PROPERTY WITHIN THE MEANING OF ART. 308
OF THE REVISED PENAL CODE.30
Petitioner avers that the petition for a writ of
certiorari may be filed to nullify an interlocutory order
of the trial court which was issued with grave abuse of
discretion amounting to excess or lack of jurisdiction.
In support of his petition before the Court, he
reiterates the arguments in his pleadings filed before
the CA. He further claims that while the right to carry
on a business or an interest or participation in
business is considered property under the New Civil
Code, the term "business," however, is not. He asserts
that the Philippine Legislature, which approved the
Revised Penal Code way back in January 1, 1932,
could not have contemplated to include international
long distance calls and "business" as personal
property under Article 308 thereof.
In its comment on the petition, the Office of the
Solicitor General (OSG) maintains that the amended
information clearly states all the essential elements of
the crime of theft. Petitioner’s interpretation as to
whether an "international long distance call" is
personal property under the law is inconsequential, as
a reading of the amended information readily reveals
that specific acts and circumstances were alleged
charging Baynet, through its officers, including
petitioner, of feloniously taking, stealing and illegally
using international long distance calls belonging to
respondent PLDT by conducting ISR operations, thus,
"routing and completing international long distance
calls using lines, cables, antenna and/or airwave
frequency which connect directly to the local or
domestic exchange facilities of the country where the
call is destined." The OSG maintains that the
international long distance calls alleged in the
amended information should be construed to mean
"business" of PLDT, which, while abstract and
intangible in form, is personal property susceptible of
appropriation.31 The OSG avers that what was stolen
by petitioner and his co-accused is the business of
PLDT providing international long distance calls
which, though intangible, is personal property of the
PLDT.32
For its part, respondent PLDT asserts that personal
property under Article 308 of the Revised Penal Code
comprehends intangible property such as electricity
and gas which are valuable articles for merchandise,
brought and sold like other personal property, and are
capable of appropriation. It insists that the business of
international calls and revenues constitute personal
property because the same are valuable articles of
merchandise. The respondent reiterates that
international calls involve (a) the intangible telephone
services that are being offered by it, that is, the
connection and interconnection to the telephone
network, lines or facilities; (b) the use of its telephone
network, lines or facilities over a period of time; and
(c) the income derived in connection therewith. 33
PLDT further posits that business revenues or the
income derived in connection with the rendition of
such services and the use of its telephone network,
lines or facilities are personal properties under Article
308 of the Revised Penal Code; so is the use of said
telephone services/telephone network, lines or
facilities which allow electronic voice signals to pass
through the same and ultimately to the called party’s
number. It is akin to electricity which, though
intangible property, may nevertheless be appropriated
and can be the object of theft. The use of respondent
PLDT’s telephone network, lines, or facilities over a
period of time for consideration is the business that it
provides to its customers, which enables the latter to
send various messages to intended recipients. Such
use over a period of time is akin to merchandise which
has value and, therefore, can be appropriated by
another. According to respondent PLDT, this is what
actually happened when petitioner Laurel and the
other accused below conducted illegal ISR
operations.34
The petition is meritorious.
The issues for resolution are as follows: (a) whether or
not the petition for certiorari is the proper remedy of
the petitioner in the Court of Appeals; (b) whether or
not international telephone calls using Bay Super
Orient Cards through the telecommunication services
provided by PLDT for such calls, or, in short, PLDT’s
business of providing said telecommunication
services, are proper subjects of theft under Article 308
of the Revised Penal Code; and (c) whether or not the
trial court committed grave abuse of discretion
amounting to excess or lack of jurisdiction in denying
the motion of the petitioner to quash the amended
information.
On the issue of whether or not the petition for
certiorari instituted by the petitioner in the CA is
proper, the general rule is that a petition for certiorari
under Rule 65 of the Rules of Court, as amended, to
nullify an order denying a motion to quash the
Information is inappropriate because the aggrieved
party has a remedy of appeal in the ordinary course of
law. Appeal and certiorari are mutually exclusive of
each other. The remedy of the aggrieved party is to
continue with the case in due course and, when an
unfavorable judgment is rendered, assail the order
and the decision on appeal. However, if the trial court
issues the order denying the motion to quash the
Amended Information with grave abuse of discretion
amounting to excess or lack of jurisdiction, or if such
order is patently erroneous, or null and void for being
contrary to the Constitution, and the remedy of appeal
would not afford adequate and expeditious relief, the
accused may resort to the extraordinary remedy of
certiorari.35 A special civil action for certiorari is also
available where there are special circumstances
clearly demonstrating the inadequacy of an appeal. As
this Court held in Bristol Myers Squibb (Phils.), Inc. v.
Viloria:36
Nonetheless, the settled rule is that a writ of certiorari
may be granted in cases where, despite availability of
appeal after trial, there is at least a prima facie
showing on the face of the petition and its annexes
that: (a) the trial court issued the order with grave
abuse of discretion amounting to lack of or in excess
of jurisdiction; (b) appeal would not prove to be a
speedy and adequate remedy; (c) where the order is a
patent nullity; (d) the decision in the present case will
arrest future litigations; and (e) for certain
considerations such as public welfare and public
policy.37
In his petition for certiorari in the CA, petitioner
averred that the trial court committed grave abuse of
its discretion amounting to excess or lack of
jurisdiction when it denied his motion to quash the
Amended Information despite his claim that the
material allegations in the Amended Information do
not charge theft under Article 308 of the Revised
Penal Code, or any offense for that matter. By so
doing, the trial court deprived him of his
constitutional right to be informed of the nature of the
charge against him. He further averred that the order
of the trial court is contrary to the constitution and is,
thus, null and void. He insists that he should not be
compelled to undergo the rigors and tribulations of a
protracted trial and incur expenses to defend himself
against a non-existent charge.
Petitioner is correct.
An information or complaint must state explicitly and
directly every act or omission constituting an offense 38
and must allege facts establishing conduct that a
penal statute makes criminal;39 and describes the
property which is the subject of theft to advise the
accused with reasonable certainty of the accusation he
is called upon to meet at the trial and to enable him to
rely on the judgment thereunder of a subsequent
prosecution for the same offense.40 It must show, on
its face, that if the alleged facts are true, an offense
has been committed. The rule is rooted on the
constitutional right of the accused to be informed of
the nature of the crime or cause of the accusation
against him. He cannot be convicted of an offense
even if proven unless it is alleged or necessarily
included in the Information filed against him.
As a general prerequisite, a motion to quash on the
ground that the Information does not constitute the
offense charged, or any offense for that matter, should
be resolved on the basis of said allegations whose
truth and veracity are hypothetically committed;41 and
on additional facts admitted or not denied by the
prosecution.42 If the facts alleged in the Information
do not constitute an offense, the complaint or
information should be quashed by the court.43
We have reviewed the Amended Information and find
that, as mentioned by the petitioner, it does not
contain material allegations charging the petitioner of
theft of personal property under Article 308 of the
Revised Penal Code. It, thus, behooved the trial court
to quash the Amended Information. The Order of the
trial court denying the motion of the petitioner to
quash the Amended Information is a patent nullity.
On the second issue, we find and so hold that the
international telephone calls placed by Bay Super
Orient Card holders, the telecommunication services
provided by PLDT and its business of providing said
services are not personal properties under Article 308
of the Revised Penal Code. The construction by the
respondents of Article 308 of the said Code to include,
within its coverage, the aforesaid international
telephone calls, telecommunication services and
business is contrary to the letter and intent of the law.
The rule is that, penal laws are to be construed
strictly. Such rule is founded on the tenderness of the
law for the rights of individuals and on the plain
principle that the power of punishment is vested in
Congress, not in the judicial department. It is
Congress, not the Court, which is to define a crime,
and ordain its punishment.44 Due respect for the
prerogative of Congress in defining crimes/felonies
constrains the Court to refrain from a broad
interpretation of penal laws where a "narrow
interpretation" is appropriate. The Court must take
heed to language, legislative history and purpose, in
order to strictly determine the wrath and breath of the
conduct the law forbids.45 However, when the
congressional purpose is unclear, the court must
apply the rule of lenity, that is, ambiguity concerning
the ambit of criminal statutes should be resolved in
favor of lenity.46
Penal statutes may not be enlarged by implication or
intent beyond the fair meaning of the language used;
and may not be held to include offenses other than
those which are clearly described, notwithstanding
that the Court may think that Congress should have
made them more comprehensive.47 Words and phrases
in a statute are to be construed according to their
common meaning and accepted usage.
As Chief Justice John Marshall declared, "it would be
dangerous, indeed, to carry the principle that a case
which is within the reason or
mischief of a statute is within its provision, so far as to
punish a crime not enumerated in the statute because
it is of equal atrocity, or of kindred character with
those which are enumerated.48 When interpreting a
criminal statute that does not explicitly reach the
conduct in question, the Court should not base an
expansive reading on inferences from subjective and
variable understanding.49
Article 308 of the Revised Penal Code defines theft as
follows:
Art. 308. Who are liable for theft.– Theft is committed
by any person who, with intent to gain but without
violence, against or intimidation of persons nor force
upon things, shall take personal property of another
without the latter’s consent.
The provision was taken from Article 530 of the
Spanish Penal Code which reads:
1. Los que con ánimo de lucrarse, y sin violencia o
intimidación en las personas ni fuerza en las cosas,
toman las cosas muebles ajenas sin la voluntad de su
dueño.50
For one to be guilty of theft, the accused must have an
intent to steal (animus furandi) personal property,
meaning the intent to deprive another of his
ownership/lawful possession of personal property
which intent is apart from and concurrently with the
general criminal intent which is an essential element
of a felony of dolo (dolus malus).
An information or complaint for simple theft must
allege the following elements: (a) the taking of
personal property; (b) the said property belongs to
another; (c) the taking be done with intent to gain;
and (d) the taking be accomplished without the use of
violence or intimidation of person/s or force upon
things.51
One is apt to conclude that "personal property"
standing alone, covers both tangible and intangible
properties and are subject of theft under the Revised
Penal Code. But the words "Personal property" under
the Revised Penal Code must be considered in tandem
with the word "take" in the law. The statutory
definition of "taking" and movable property indicates
that, clearly, not all personal properties may be the
proper subjects of theft. The general rule is that, only
movable properties which have physical or material
existence and susceptible of occupation by another are
proper objects of theft.52 As explained by Cuelo Callon:
"Cosa juridicamente es toda sustancia corporal,
material, susceptible de ser aprehendida que tenga un
valor cualquiera."53
According to Cuello Callon, in the context of the Penal
Code, only those movable properties which can be
taken and carried from the place they are found are
proper subjects of theft. Intangible properties such as
rights and ideas are not subject of theft because the
same cannot be "taken" from the place it is found and
is occupied or appropriated.
Solamente las cosas muebles y corporales pueden ser
objeto de hurto. La sustracción de cosas inmuebles y
la cosas incorporales (v. gr., los derechos, las ideas) no
puede integrar este delito, pues no es posible asirlas,
tomarlas, para conseguir su apropiación. El Codigo
emplea la expresión "cosas mueble" en el sentido de
cosa que es susceptible de ser llevada del lugar donde
se encuentra, como dinero, joyas, ropas, etcétera, asi
que su concepto no coincide por completo con el
formulado por el Codigo civil (arts. 335 y 336).54
Thus, movable properties under Article 308 of the
Revised Penal Code should be distinguished from the
rights or interests to which they relate. A naked right
existing merely in contemplation of law, although it
may be very valuable to the person who is entitled to
exercise it, is not the subject of theft or larceny. 55 Such
rights or interests are intangible and cannot be
"taken" by another. Thus, right to produce oil, good
will or an interest in business, or the right to engage in
business, credit or franchise are properties. So is the
credit line represented by a credit card. However, they
are not proper subjects of theft or larceny because
they are without form or substance, the mere "breath"
of the Congress. On the other hand, goods, wares and
merchandise of businessmen and credit cards issued
to them are movable properties with physical and
material existence and may be taken by another;
hence, proper subjects of theft.
There is "taking" of personal property, and theft is
consummated when the offender unlawfully acquires
possession of personal property even if for a short
time; or if such property is under the dominion and
control of the thief. The taker, at some particular
amount, must have obtained complete and absolute
possession and control of the property adverse to the
rights of the owner or the lawful possessor thereof. 56 It
is not necessary that the property be actually carried
away out of the physical possession of the lawful
possessor or that he should have made his escape with
it.57 Neither asportation nor actual manual possession
of property is required. Constructive possession of the
thief of the property is enough.58
The essence of the element is the taking of a thing out
of the possession of the owner without his privity and
consent and without animus revertendi.59
Taking may be by the offender’s own hands, by his use
of innocent persons without any felonious intent, as
well as any mechanical device, such as an access
device or card, or any agency, animate or inanimate,
with intent to gain. Intent to gain includes the
unlawful taking of personal property for the purpose
of deriving utility, satisfaction, enjoyment and
pleasure.60
We agree with the contention of the respondents that
intangible properties such as electrical energy and gas
are proper subjects of theft. The reason for this is that,
as explained by this Court in United States v. Carlos 61
and United States v. Tambunting,62 based on decisions
of the Supreme Court of Spain and of the courts in
England and the United States of America, gas or
electricity are capable of appropriation by another
other than the owner. Gas and electrical energy may
be taken, carried away and appropriated. In People v.
Menagas,63 the Illinois State Supreme Court declared
that electricity, like gas, may be seen and felt.
Electricity, the same as gas, is a valuable article of
merchandise, bought and sold like other personal
property and is capable of appropriation by another.
It is a valuable article of merchandise, bought and
sold like other personal property, susceptible of being
severed from a mass or larger quantity and of being
transported from place to place. Electrical energy
may, likewise, be taken and carried away. It is a
valuable commodity, bought and sold like other
personal property. It may be transported from place
to place. There is nothing in the nature of gas used for
illuminating purposes which renders it incapable of
being feloniously taken and carried away.
In People ex rel Brush Electric Illuminating Co. v.
Wemple,64 the Court of Appeals of New York held that
electric energy is manufactured and sold in
determinate quantities at a fixed price, precisely as are
coal, kerosene oil, and gas. It may be conveyed to the
premises of the consumer, stored in cells of different
capacity known as an accumulator; or it may be sent
through a wire, just as gas or oil may be transported
either in a close tank or forced through a pipe. Having
reached the premises of the consumer, it may be used
in any way he may desire, being, like illuminating gas,
capable of being transformed either into heat, light, or
power, at the option of the purchaser. In Woods v.
People,65 the Supreme Court of Illinois declared that
there is nothing in the nature of gas used for
illuminating purposes which renders it incapable of
being feloniously taken and carried away. It is a
valuable article of merchandise, bought and sold like
other personal property, susceptible of being severed
from a mass or larger quantity and of being
transported from place to place.
Gas and electrical energy should not be equated with
business or services provided by business
entrepreneurs to the public. Business does not have
an exact definition. Business is referred as that which
occupies the time, attention and labor of men for the
purpose of livelihood or profit. It embraces everything
that which a person can be employed.66 Business may
also mean employment, occupation or profession.
Business is also defined as a commercial activity for
gain benefit or advantage.67 Business, like services in
business, although are properties, are not proper
subjects of theft under the Revised Penal Code
because the same cannot be "taken" or "occupied." If
it were otherwise, as claimed by the respondents,
there would be no juridical difference between the
taking of the business of a person or the services
provided by him for gain, vis-à-vis, the taking of
goods, wares or merchandise, or equipment
comprising his business.68 If it was its intention to
include "business" as personal property under Article
308 of the Revised Penal Code, the Philippine
Legislature should have spoken in language that is
clear and definite: that business is personal property
under Article 308 of the Revised Penal Code.69
We agree with the contention of the petitioner that, as
gleaned from the material averments of the Amended
Information, he is charged of "stealing the
international long distance calls belonging to PLDT"
and the use thereof, through the ISR. Contrary to the
claims of the OSG and respondent PLDT, the
petitioner is not charged of stealing P20,370,651.95
from said respondent. Said amount of P20,370,651.95
alleged in the Amended Information is the aggregate
amount of access, transmission or termination
charges which the PLDT expected from the
international long distance calls of the callers with the
use of Baynet Super Orient Cards sold by Baynet Co.
Ltd.
In defining theft, under Article 308 of the Revised
Penal Code, as the taking of personal property without
the consent of the owner thereof, the Philippine
legislature could not have contemplated the human
voice which is converted into electronic impulses or
electrical current which are transmitted to the party
called through the PSTN of respondent PLDT and the
ISR of Baynet Card Ltd. within its coverage. When the
Revised Penal Code was approved, on December 8,
1930, international telephone calls and the
transmission and routing of electronic voice signals or
impulses emanating from said calls, through the
PSTN, IPL and ISR, were still non-existent. Case law
is that, where a legislative history fails to evidence
congressional awareness of the scope of the statute
claimed by the respondents, a narrow interpretation
of the law is more consistent with the usual approach
to the construction of the statute. Penal responsibility
cannot be extended beyond the fair scope of the
statutory mandate.70
Respondent PLDT does not acquire possession, much
less, ownership of the voices of the telephone callers
or of the electronic voice signals or current emanating
from said calls. The human voice and the electronic
voice signals or current caused thereby are intangible
and not susceptible of possession, occupation or
appropriation by the respondent PLDT or even the
petitioner, for that matter. PLDT merely transmits the
electronic voice signals through its facilities and
equipment. Baynet Card Ltd., through its operator,
merely intercepts, reroutes the calls and passes them
to its toll center. Indeed, the parties called receive the
telephone calls from Japan.
In this modern age of technology, telecommunications
systems have become so tightly merged with
computer systems that it is difficult to know where
one starts and the other finishes. The telephone set is
highly computerized and allows computers to
communicate across long distances.71 The
instrumentality at issue in this case is not merely a
telephone but a telephone inexplicably linked to a
computerized communications system with the use of
Baynet Cards sold by the Baynet Card Ltd. The
corporation uses computers, modems and software,
among others, for its ISR.72
The conduct complained of by respondent PLDT is
reminiscent of "phreaking" (a slang term for the
action of making a telephone system to do something
that it normally should not allow by "making the
phone company bend over and grab its ankles"). A
"phreaker" is one who engages in the act of
manipulating phones and illegally markets telephone
services.73 Unless the phone company replaces all its
hardware, phreaking would be impossible to stop. The
phone companies in North America were impelled to
replace all their hardware and adopted full digital
switching system known as the Common Channel
Inter Office Signaling. Phreaking occurred only during
the 1960’s and 1970’s, decades after the Revised Penal
Code took effect.
The petitioner is not charged, under the Amended
Information, for theft of telecommunication or
telephone services offered by PLDT. Even if he is, the
term "personal property" under Article 308 of the
Revised Penal Code cannot be interpreted beyond its
seams so as to include "telecommunication or
telephone services" or computer services for that
matter. The word "service" has a variety of meanings
dependent upon the context, or the sense in which it
is used; and, in some instances, it may include a sale.
For instance, the sale of food by restaurants is usually
referred to as "service," although an actual sale is
involved.74 It may also mean the duty or labor to be
rendered by one person to another; performance of
labor for the benefit of another.75 In the case of PLDT,
it is to render local and international
telecommunications services and such other services
as authorized by the CPCA issued by the NTC. Even at
common law, neither time nor services may be taken
and occupied or appropriated.76 A service is generally
not considered property and a theft of service would
not, therefore, constitute theft since there can be no
caption or asportation.77 Neither is the unauthorized
use of the equipment and facilities of PLDT by the
petitioner theft under the aforequoted provision of the
Revised Penal Code.78
If it was the intent of the Philippine Legislature, in
1930, to include services to be the subject of theft, it
should have incorporated the same in Article 308 of
the Revised Penal Code. The Legislature did not. In
fact, the Revised Penal Code does not even contain a
definition of services.
If taking of telecommunication services or the
business of a person, is to be proscribed, it must be by
special statute79 or an amendment of the Revised
Penal Code. Several states in the United States, such
as New York, New Jersey, California and Virginia,
realized that their criminal statutes did not contain
any provisions penalizing the theft of services and
passed laws defining and penalizing theft of telephone
and computer services. The Pennsylvania Criminal
Statute now penalizes theft of services, thus:
(a) Acquisition of services. --
(1) A person is guilty of theft if he intentionally
obtains services for himself or for another which he
knows are available only for compensation, by
deception or threat, by altering or tampering with the
public utility meter or measuring device by which
such services are delivered or by causing or permitting
such altering or tampering, by making or maintaining
any unauthorized connection, whether physically,
electrically or inductively, to a distribution or
transmission line, by attaching or maintaining the
attachment of any unauthorized device to any cable,
wire or other component of an electric, telephone or
cable television system or to a television receiving set
connected to a cable television system, by making or
maintaining any unauthorized modification or
alteration to any device installed by a cable television
system, or by false token or other trick or artifice to
avoid payment for the service.
In the State of Illinois in the United States of America,
theft of labor or services or use of property is
penalized:
(a) A person commits theft when he obtains the
temporary use of property, labor or services of
another which are available only for hire, by means of
threat or deception or knowing that such use is
without the consent of the person providing the
property, labor or services.
In 1980, the drafters of the Model Penal Code in the
United States of America arrived at the conclusion
that labor and services, including professional
services, have not been included within the traditional
scope of the term "property" in ordinary theft statutes.
Hence, they decided to incorporate in the Code
Section 223.7, which defines and penalizes theft of
services, thus:
(1) A person is guilty of theft if he purposely obtains
services which he knows are available only for
compensation, by deception or threat, or by false
token or other means to avoid payment for the
service. "Services" include labor, professional service,
transportation, telephone or other public service,
accommodation in hotels, restaurants or elsewhere,
admission to exhibitions, use of vehicles or other
movable property. Where compensation for service is
ordinarily paid immediately upon the rendering of
such service, as in the case of hotels and restaurants,
refusal to pay or absconding without payment or offer
to pay gives rise to a presumption that the service was
obtained by deception as to intention to pay; (2) A
person commits theft if, having control over the
disposition of services of others, to which he is not
entitled, he knowingly diverts such services to his own
benefit or to the benefit of another not entitled
thereto.
Interestingly, after the State Supreme Court of
Virginia promulgated its decision in Lund v.
Commonwealth,80 declaring that neither time nor
services may be taken and carried away and are not
proper subjects of larceny, the General Assembly of
Virginia enacted Code No. 18-2-98 which reads:
Computer time or services or data processing services
or information or data stored in connection therewith
is hereby defined to be property which may be the
subject of larceny under § § 18.2-95 or 18.2-96, or
embezzlement under § 18.2-111, or false pretenses
under § 18.2-178.
In the State of Alabama, Section 13A-8-10(a)(1) of the
Penal Code of Alabama of 1975 penalizes theft of
services:
"A person commits the crime of theft of services if: (a)
He intentionally obtains services known by him to be
available only for compensation by deception, threat,
false token or other means to avoid payment for the
services …"
In the Philippines, Congress has not amended the
Revised Penal Code to include theft of services or theft
of business as felonies. Instead, it approved a law,
Republic Act No. 8484, otherwise known as the
Access Devices Regulation Act of 1998, on February
11, 1998. Under the law, an access device means any
card, plate, code, account number, electronic serial
number, personal identification number and other
telecommunication services, equipment or
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.
Section 33 of Republic Act No. 8792, Electronic
Commerce Act of 2000 provides:
Sec. 33. Penalties.— The following Acts shall be
penalized by fine and/or imprisonment, as follows:
a) Hacking or cracking which refers to unauthorized
access into or interference in a computer
system/server or information and communication
system; or any access in order to corrupt, alter, steal,
or destroy using a computer or other similar
information and communication devices, without the
knowledge and consent of the owner of the computer
or information and communications system,
including the introduction of computer viruses and
the like, resulting on the corruption, destruction,
alteration, theft or loss of electronic data messages or
electronic documents shall be punished by a
minimum fine of One hundred thousand pesos
(P100,000.00) and a maximum commensurate to the
damage incurred and a mandatory imprisonment of
six (6) months to three (3) years.
IN LIGHT OF ALL THE FOREGOING, the petition is
GRANTED. The assailed Orders of the Regional Trial
Court and the Decision of the Court of Appeals are
REVERSED and SET ASIDE. The Regional Trial
Court is directed to issue an order granting the motion
of the petitioner to quash the Amended Information.
SO ORDERED.
ROMEO J. CALLEJO, SR.
Associate Justice
WE CONCUR:
(No part)
ARTEMIO V. PANGANIBAN
Chief Justice
Chairperson
MA. ALICIA AUSTRIA-
CONSUELO YNARES-SANTIAGO,
MARTINEZ
Associate Justice
Associate Justice
(On leave)
MINITA V. CHICO-NAZARIO*
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, it is hereby certified that the conclusions
in the above decision were reached in consultation
before the case was assigned to the writer of the
opinion of the Court’s Division.
ARTEMIO V. PANGANIBAN
Chief Justice
Footnotes
* On leave.
1
Penned by Associate Justice Bienvenido L. Reyes,
with Associate Justices Roberto A. Barrios and
Edgardo F. Sundiam, concurring.
2
an act further amending act no. 3436, as amended,
"xxx consolidating the terms and conditions of the
franchise granted to [pldt], and extending the said
franchise by twenty-five (25) years from the
expiration thereof xxx."
3
Rollo, pp. 129-130.
4
Id. at 131.
5
Id. at 131, 137.
6
Id.
7
Id. at 138.
8
Id. at 134.
9
Id. at 140.
10
Id. at 142-146.
11
Rollo, pp. 243-246.
12
NOW, THEREFORE, I FERDINAND E. MARCOS,
President of the Philippines, by virtue of the powers
vested in me by the Constitution a Commander-in-
Chief of all the Armed Forces of the Philippines, and
pursuant to Proclamation No. 1081 dated September
21, 1972, and General Order No. 1 dated September
22, 1972, as amended, do hereby order and decree
that any person who installs any water, electrical or
telephone connection without previous authority from
the Metropolitan Waterworks and Sewerage System,
the Manila Electric Company or the Philippine Long
Distance Telephone Company, as the case may be;
tampers and/or uses tampered water or electrical
meters or jumpers or other devices whereby water or
electricity is stolen; steals or pilfers water and/or
electric meters or water, electric and/or telephone
wires; knowingly possesses stolen or pilfered water
and/or electrical meters as well as stolen or pilfered
water, electrical and/or telephone wires, shall, upon
conviction, be punished by prision correccional in its
minimum period or a fine ranging from two thousand
to six thousand pesos, or both. If the violation is
committed with the connivance or permission of an
employee or officer of the Metropolitan Waterworks
and Sewerage System, or the Manila Electric
Company, or the Philippine Long Distance Telephone
Company, such employee or officer shall, upon
conviction, be punished by a penalty one degree lower
than prision correccional in its minimum period and
forthwith be dismissed and perpetually disqualified
from employment in any public or private utility or
service company.
13
Rollo, pp. 57-58. (Underscoring supplied)
14
Id. at 67-76.
15
Id. at 69. (Emphasis supplied)
16
Id. at 77-80.
17
Id. at 81-86.
18
31 Phil. 494 (1915).
19
Rollo, pp. 87-94.
20
44 Phil. 933, 935 (1922).
21
CA rollo, p. 6.
22
Id. at 9-11.
23
Id.
24
Id.
25
Resolution No. 149, Series of 1999 dated April 16,
1999 (I.S. No. 96-3884), rollo, pp. 95-97.
26
Id.
27
Id. at 32-47.
28
21 Phil. 553 (1911).
29
Supra note 20, at 935.
30
Rollo, pp. 18-19.
31
Id. at 689.
32
Id. at 691.
33
Id. at 669-670.
34
Rollo, p. 670.
35
Madarang v. Court of Appeals, G.R. No. 143044,
July 14, 2005, 463 SCRA 318, 327 (2005).
36
G.R. No. 148156, September 27, 2004, 439 SCRA
202 (2000).
37
Id. at 211.
38
Section 9, Rule 110 of the Revised Rules of Criminal
Procedure.
39
People v. Weg, 450 N.Y.S.2d 957 (1982).
40
Clines v. Commonwealth, 298 S.W. 1107 (1927).
41
Santiago v. Garchitorena, G.R. No. 109266,
December 2, 1993, 228 SCRA 214.
42
Garcia v. Court of Appeals, 334 Phil. 621, 634
(1997); People v. Navarro, 75 Phil. 516, 518 (1945).
43
Section 3(a), Rule 117 of the 2000 Rules of Criminal
Procedure.
44
United States v. Wiltberger, 18 U.S. 76 (1820).
45
Dowling v. United States, 473 U.S. 207 (1985).
46
Liparota v. United States, 105 S. Ct. 2084 (1985).
47
Kelley v. State, 119 N.E.2d 322 (1954); State v.
McGraw, 480 N.E.2d 552 (1985).
48
United States v. Wiltberger, supra note 44.
49
Dowling v. United States, supra note 45.
50
Viada, codigo penal reformado de 1870, concordado
y comentado, 219.
The felony has the following elements:
(1) Apoderamiento de una cosa mueble; (2) Que la
cosa mueble sea ajena; (3) Que el apoderamiento se
verifique con intención de lucro; (4) Que se tome la
cosa sin la voluntad de su dueño; (5) Que se realice el
apoderamiento de la cosa sin violencia intimidación
en las personas ni fuerza en las cosas (Viada, 220-
221).
51
People v. Sison, 379 Phil. 363, 384 (2000); People v.
Bustinera, G.R. No. 148233, June 8, 2004, 431 SCRA
284, 291.
52
Cuello Callon, Derecho Penal, Tomo II, p. 724.
53
Id.
54
See note 52, p. 725. (Underscoring supplied)
55
36 C.J.S. 737.
56
People v. Ashworth, 222 N.Y.S. 24 (1927).
57
People v. Salvilla, G.R. No. 86163, April 26, 1990,
184 SCRA 671, 677 (1990).
58
Harris v. State, 14 S.W. 390 (1890).
59
Woods v. People, 78 N.E. 607 (1906).
60
Villacorta v. Insurance Commission, G.R. No. 54171,
October 28, 1980, 100 SCRA 467.
61
Supra note 28.
62
41 Phil. 364 (1921).
63
11 N.E.2d 403 (1937).
64
29 N.E. 808 (1892). (Emphasis supplied)
65
Supra note 59 (Emphasis supplied)
66
Doggett v. Burnet, 65 F.2d 191 (1933).
67
Black’s Law Dictionary, 5th ed., p. 179; Union
League Club v. Johnson, 108 P.2d 487, 490 (1940).
68
United States v. McCraken, 19 C.M.R. 876 (1955).
69
People v. Tansey, 593 N.Y.S. 2d 426 (1992).
70
People v. Case, 42 N.Y.S. 2d 101.
71
Commonwealth v. Gerulis, 616 A.2d 686 (1992).
72
Rollo, p. 138.
73
Commonwealth v. Gerulis, supra note 71.
74
Central Power and Light Co. v. State, 165 S.W. 2d
920 (1942).
75
Black’s Law Dictionary, p. 1227.
76
Lund v. Commonwealth, 232 S.E.2d 745 (1977); 50
Am. Jur. 2d Larceny, p. 83.
77
Imbau, Thomson, Moenssens, Criminal Law, Second
Edition, p. 6247, 2 Wharton Criminal Law, Prodded ,
§ 604:369.
78
Id. at 746; Commonwealth v. Rivera, 583 N.E.2d
867 (1991).
79
People v. Tansey, supra note 69.
80
See note 76.

The Lawphil Project - Arellano Law Foundation

G.R. No. 155076

FIRST DIVISION
G.R. No. 155076 February 27, 2006
LUIS MARCOS P. LAUREL, Petitioner,
vs.
HON. ZEUS C. ABROGAR, Presiding Judge of
the Regional Trial Court, Makati City, Branch
150, PEOPLE OF THE PHILIPPINES&
PHILIPPINE LONG DISTANCE TELEPHONE
COMPANY, Respondents.
DECISION
CALLEJO, SR., J.:
Before us is a Petition for Review on Certiorari of the
Decision1 of the Court of Appeals (CA) in CA-G.R. SP
No. 68841 affirming the Order issued by Judge Zeus
C. Abrogar, Regional Trial Court (RTC), Makati City,
Branch 150, which denied the "Motion to Quash (With
Motion to Defer Arraignment)" in Criminal Case No.
99-2425 for theft.
Philippine Long Distance Telephone Company
(PLDT) is the holder of a legislative franchise to
render local and international telecommunication
services under Republic Act No. 7082.2 Under said
law, PLDT is authorized to establish, operate, manage,
lease, maintain and purchase telecommunication
systems, including transmitting, receiving and
switching stations, for both domestic and
international calls. For this purpose, it has installed
an estimated 1.7 million telephone lines nationwide.
PLDT also offers other services as authorized by
Certificates of Public Convenience and Necessity
(CPCN) duly issued by the National
Telecommunications Commission (NTC), and
operates and maintains an International Gateway
Facility (IGF). The PLDT network is thus principally
composed of the Public Switch Telephone Network
(PSTN), telephone handsets and/or
telecommunications equipment used by its
subscribers, the wires and cables linking said
telephone handsets and/or telecommunications
equipment, antenna, the IGF, and other
telecommunications equipment which provide
interconnections.3 1avvphil.net
PLDT alleges that one of the alternative calling
patterns that constitute network fraud and violate its
network integrity is that which is known as
International Simple Resale (ISR). ISR is a method of
routing and completing international long distance
calls using International Private Leased Lines (IPL),
cables, antenna or air wave or frequency, which
connect directly to the local or domestic exchange
facilities of the terminating country (the country
where the call is destined). The IPL is linked to
switching equipment which is connected to a PLDT
telephone line/number. In the process, the calls
bypass the IGF found at the terminating country, or in
some instances, even those from the originating
country.4
One such alternative calling service is that offered by
Baynet Co., Ltd. (Baynet) which sells "Bay Super
Orient Card" phone cards to people who call their
friends and relatives in the Philippines. With said
card, one is entitled to a 27-minute call to the
Philippines for about ¥37.03 per minute. After dialing
the ISR access number indicated in the phone card,
the ISR operator requests the subscriber to give the
PIN number also indicated in the phone card. Once
the caller’s identity (as purchaser of the phone card) is
confirmed, the ISR operator will then provide a
Philippine local line to the requesting caller via the
IPL. According to PLDT, calls made through the IPL
never pass the toll center of IGF operators in the
Philippines. Using the local line, the Baynet card user
is able to place a call to any point in the Philippines,
provided the local line is National Direct Dial (NDD)
capable.5
PLDT asserts that Baynet conducts its ISR activities
by utilizing an IPL to course its incoming
international long distance calls from Japan. The IPL
is linked to switching equipment, which is then
connected to PLDT telephone lines/numbers and
equipment, with Baynet as subscriber. Through the
use of the telephone lines and other auxiliary
equipment, Baynet is able to connect an international
long distance call from Japan to any part of the
Philippines, and make it appear as a call originating
from Metro Manila. Consequently, the operator of an
ISR is able to evade payment of access, termination or
bypass charges and accounting rates, as well as
compliance with the regulatory requirements of the
NTC. Thus, the ISR operator offers international
telecommunication services at a lower rate, to the
damage and prejudice of legitimate operators like
PLDT.6
PLDT pointed out that Baynet utilized the following
equipment for its ISR activities: lines, cables, and
antennas or equipment or device capable of
transmitting air waves or frequency, such as an IPL
and telephone lines and equipment; computers or any
equipment or device capable of accepting information
applying the prescribed process of the information
and supplying the result of this process; modems or
any equipment or device that enables a data terminal
equipment such as computers to communicate with
other data terminal equipment via a telephone line;
multiplexers or any equipment or device that enables
two or more signals from different sources to pass
through a common cable or transmission line;
switching equipment, or equipment or device capable
of connecting telephone lines; and software, diskettes,
tapes or equipment or device used for recording and
storing information.7
PLDT also discovered that Baynet subscribed to a
total of 123 PLDT telephone lines/numbers.8 Based on
the Traffic Study conducted on the volume of calls
passing through Baynet’s ISR network which bypass
the IGF toll center, PLDT incurred an estimated
monthly loss of P10,185,325.96.9 Records at the
Securities and Exchange Commission (SEC) also
revealed that Baynet was not authorized to provide
international or domestic long distance telephone
service in the country. The following are its officers:
Yuji Hijioka, a Japanese national (chairman of the
board of directors); Gina C. Mukaida, a Filipina
(board member and president); Luis Marcos P.
Laurel, a Filipino (board member and corporate
secretary); Ricky Chan Pe, a Filipino (board member
and treasurer); and Yasushi Ueshima, also a Japanese
national (board member).
Upon complaint of PLDT against Baynet for network
fraud, and on the strength of two search warrants10
issued by the RTC of Makati, Branch 147, National
Bureau of Investigation (NBI) agents searched its
office at the 7th Floor, SJG Building, Kalayaan
Avenue, Makati City on November 8, 1999. Atsushi
Matsuura, Nobuyoshi Miyake, Edourd D. Lacson and
Rolando J. Villegas were arrested by NBI agents while
in the act of manning the operations of Baynet. Seized
in the premises during the search were numerous
equipment and devices used in its ISR activities, such
as multiplexers, modems, computer monitors, CPUs,
antenna, assorted computer peripheral cords and
microprocessors, cables/wires, assorted PLDT
statement of accounts, parabolic antennae and voltage
regulators.
State Prosecutor Ofelia L. Calo conducted an inquest
investigation and issued a Resolution11 on January 28,
2000, finding probable cause for theft under Article
308 of the Revised Penal Code and Presidential
Decree No. 40112 against the respondents therein,
including Laurel.
On February 8, 2000, State Prosecutor Calo filed an
Information with the RTC of Makati City charging
Matsuura, Miyake, Lacson and Villegas with theft
under Article 308 of the Revised Penal Code. After
conducting the requisite preliminary investigation,
the State Prosecutor filed an Amended Information
impleading Laurel (a partner in the law firm of Ingles,
Laurel, Salinas, and, until November 19, 1999, a
member of the board of directors and corporate
secretary of Baynet), and the other members of the
board of directors of said corporation, namely, Yuji
Hijioka, Yasushi Ueshima, Mukaida, Lacson and
Villegas, as accused for theft under Article 308 of the
Revised Penal Code. The inculpatory portion of the
Amended Information reads:
On or about September 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.
CONTRARY TO LAW.13
Accused Laurel filed a "Motion to Quash (with Motion
to Defer Arraignment)" on the ground that the factual
allegations in the Amended Information do not
constitute the felony of theft under Article 308 of the
Revised Penal Code. He averred that the Revised
Penal Code, or any other special penal law for that
matter, does not prohibit ISR operations. He claimed
that telephone calls with the use of PLDT telephone
lines, whether domestic or international, belong to the
persons making the call, not to PLDT. He argued that
the caller merely uses the facilities of PLDT, and what
the latter owns are the telecommunication
infrastructures or facilities through which the call is
made. He also asserted that PLDT is compensated for
the caller’s use of its facilities by way of rental; for an
outgoing overseas call, PLDT charges the caller per
minute, based on the duration of the call. Thus, no
personal property was stolen from PLDT. According
to Laurel, the P20,370,651.92 stated in the
Information, if anything, represents the rental for the
use of PLDT facilities, and not the value of anything
owned by it. Finally, he averred that the allegations in
the Amended Information are already subsumed
under the Information for violation of Presidential
Decree (P.D.) No. 401 filed and pending in the
Metropolitan Trial Court of Makati City, docketed as
Criminal Case No. 276766.
The prosecution, through private complainant PLDT,
opposed the motion,14 contending that the movant
unlawfully took personal property belonging to it, as
follows: 1) intangible telephone services that are being
offered by PLDT and other telecommunication
companies, i.e., the connection and interconnection to
their telephone lines/facilities; 2) the use of those
facilities over a period of time; and 3) the revenues
derived in connection with the rendition of such
services and the use of such facilities. 15
The prosecution asserted that the use of PLDT’s
intangible telephone services/facilities allows
electronic voice signals to pass through the same, and
ultimately to the called party’s number. It averred that
such service/facility is akin to electricity which,
although an intangible property, may, nevertheless, be
appropriated and be the subject of theft. Such service
over a period of time for a consideration is the
business that PLDT provides to its customers, which
enables the latter to send various messages to
installed recipients. The service rendered by PLDT is
akin to merchandise which has specific value, and
therefore, capable of appropriation by another, as in
this case, through the ISR operations conducted by
the movant and his co-accused.
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 latter’s consent.
The prosecution pointed out that the accused, as well
as the movant, were paid in exchange for their illegal
appropriation and use of PLDT’s telephone services
and facilities; on the other hand, the accused did not
pay a single centavo for their illegal ISR operations.
Thus, the acts of the accused were akin to the use of a
"jumper" by a consumer to deflect the current from
the house electric meter, thereby enabling one to steal
electricity. The prosecution emphasized that its
position is fortified by the Resolutions of the
Department of Justice in PLDT v. Tiongson, et al. (I.S.
No. 97-0925) and in PAOCTF-PLDT v. Elton John
Tuason, et al. (I.S. No. 2000-370) which were issued
on August 14, 2000 finding probable cause for theft
against the respondents therein.
On September 14, 2001, the RTC issued an Order16
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 Reconsideration17 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 Order19 dated December 11, 2001, the RTC
denied the movant’s Motion for Reconsideration. This
time, it ruled that what was stolen from PLDT was its
"business" because, as alleged in the Amended
Information, the international long distance calls
made through the facilities of PLDT formed part of its
business. The RTC noted that the movant was charged
with stealing the business of PLDT. To support its
ruling, it cited Strochecker v. Ramirez,20 where the
Court ruled that interest in business is personal
property capable of appropriation. It further declared
that, through their ISR operations, the movant and
his co-accused deprived PLDT of fees for international
long distance calls, and that the ISR used by the
movant and his co-accused was no different from the
"jumper" used for stealing electricity.
Laurel then filed a Petition for Certiorari with the CA,
assailing the Order of the RTC. He alleged that the
respondent judge gravely abused his discretion in
denying his Motion to Quash the Amended
Information.21 As gleaned from the material averments
of the amended information, he was charged with
stealing the international long distance calls
belonging to PLDT, not its business. Moreover, the
RTC failed to distinguish between the business of
PLDT (providing services for international long
distance calls) and the revenues derived therefrom.
He opined that a "business" or its revenues cannot be
considered as personal property under Article 308 of
the Revised Penal Code, since a "business" is "(1) a
commercial or mercantile activity customarily
engaged in as a means of livelihood and typically
involving some independence of judgment and power
of decision; (2) a commercial or industrial enterprise;
and (3) refers to transactions, dealings or intercourse
of any nature." On the other hand, the term "revenue"
is defined as "the income that comes back from an
investment (as in real or personal property); the
annual or periodical rents, profits, interests, or issues
of any species of real or personal property."22
Laurel further posited that an electric company’s
business is the production and distribution of
electricity; a gas company’s business is the production
and/or distribution of gas (as fuel); while a water
company’s business is the production and distribution
of potable water. He argued that the "business" in all
these cases is the commercial activity, while the goods
and merchandise are the products of such activity.
Thus, in prosecutions for theft of certain forms of
energy, it is the electricity or gas which is alleged to be
stolen and not the "business" of providing electricity
or gas. However, since a telephone company does not
produce any energy, goods or merchandise and
merely renders a service or, in the words of PLDT,
"the connection and interconnection to their
telephone lines/facilities," such service cannot be the
subject of theft as defined in Article 308 of the
Revised Penal Code.23
He further declared that to categorize "business" as
personal property under Article 308 of the Revised
Penal Code would lead to absurd consequences; in
prosecutions for theft of gas, electricity or water, it
would then be permissible to allege in the Information
that it is the gas business, the electric business or the
water business which has been stolen, and no longer
the merchandise produced by such enterprise.24
Laurel further cited the Resolution of the Secretary of
Justice in Piltel v. Mendoza,25 where it was ruled that
the Revised Penal Code, legislated as it was before
present technological advances were even conceived,
is not adequate to address the novel means of
"stealing" airwaves or airtime. In said resolution, it
was noted that the inadequacy prompted the filing of
Senate Bill 2379 (sic) entitled "The Anti-
Telecommunications Fraud of 1997" to deter cloning
of cellular phones and other forms of communications
fraud. The said bill "aims to protect in number (ESN)
(sic) or Capcode, mobile identification number (MIN),
electronic-international mobile equipment identity
(EMEI/IMEI), or subscriber identity module" and
"any attempt to duplicate the data on another cellular
phone without the consent of a public
telecommunications entity would be punishable by
law."26 Thus, Laurel concluded, "there is no crime if
there is no law punishing the crime."
On August 30, 2002, the CA rendered judgment
dismissing the petition.27 The appellate court ruled
that a petition for certiorari under Rule 65 of the
Rules of Court was not the proper remedy of the
petitioner. On the merits of the petition, it held that
while business is generally an activity
which is abstract and intangible in form, it is
nevertheless considered "property" under Article 308
of the Revised Penal Code. The CA opined that PLDT’s
business of providing international calls is personal
property which may be the object of theft, and cited
United States v. Carlos28 to support such conclusion.
The tribunal also cited Strochecker v. Ramirez,29
where this Court ruled that one-half interest in a day’s
business is personal property under Section 2 of Act
No. 3952, otherwise known as the Bulk Sales Law. The
appellate court held that the operations of the ISR are
not subsumed in the charge for violation of P.D. No.
401.
Laurel, now the petitioner, assails the decision of the
CA, contending that -
THE COURT OF APPEALS ERRED IN RULING
THAT THE PERSONAL PROPERTY ALLEGEDLY
STOLEN PER THE INFORMATION IS NOT THE
"INTERNATIONAL LONG DISTANCE CALLS" BUT
THE "BUSINESS OF PLDT."
THE COURT OF APPEALS ERRED IN RULING
THAT THE TERM "BUSINESS" IS PERSONAL
PROPERTY WITHIN THE MEANING OF ART. 308
OF THE REVISED PENAL CODE.30
Petitioner avers that the petition for a writ of
certiorari may be filed to nullify an interlocutory order
of the trial court which was issued with grave abuse of
discretion amounting to excess or lack of jurisdiction.
In support of his petition before the Court, he
reiterates the arguments in his pleadings filed before
the CA. He further claims that while the right to carry
on a business or an interest or participation in
business is considered property under the New Civil
Code, the term "business," however, is not. He asserts
that the Philippine Legislature, which approved the
Revised Penal Code way back in January 1, 1932,
could not have contemplated to include international
long distance calls and "business" as personal
property under Article 308 thereof.
In its comment on the petition, the Office of the
Solicitor General (OSG) maintains that the amended
information clearly states all the essential elements of
the crime of theft. Petitioner’s interpretation as to
whether an "international long distance call" is
personal property under the law is inconsequential, as
a reading of the amended information readily reveals
that specific acts and circumstances were alleged
charging Baynet, through its officers, including
petitioner, of feloniously taking, stealing and illegally
using international long distance calls belonging to
respondent PLDT by conducting ISR operations, thus,
"routing and completing international long distance
calls using lines, cables, antenna and/or airwave
frequency which connect directly to the local or
domestic exchange facilities of the country where the
call is destined." The OSG maintains that the
international long distance calls alleged in the
amended information should be construed to mean
"business" of PLDT, which, while abstract and
intangible in form, is personal property susceptible of
appropriation.31 The OSG avers that what was stolen
by petitioner and his co-accused is the business of
PLDT providing international long distance calls
which, though intangible, is personal property of the
PLDT.32
For its part, respondent PLDT asserts that personal
property under Article 308 of the Revised Penal Code
comprehends intangible property such as electricity
and gas which are valuable articles for merchandise,
brought and sold like other personal property, and are
capable of appropriation. It insists that the business of
international calls and revenues constitute personal
property because the same are valuable articles of
merchandise. The respondent reiterates that
international calls involve (a) the intangible telephone
services that are being offered by it, that is, the
connection and interconnection to the telephone
network, lines or facilities; (b) the use of its telephone
network, lines or facilities over a period of time; and
(c) the income derived in connection therewith. 33
PLDT further posits that business revenues or the
income derived in connection with the rendition of
such services and the use of its telephone network,
lines or facilities are personal properties under Article
308 of the Revised Penal Code; so is the use of said
telephone services/telephone network, lines or
facilities which allow electronic voice signals to pass
through the same and ultimately to the called party’s
number. It is akin to electricity which, though
intangible property, may nevertheless be appropriated
and can be the object of theft. The use of respondent
PLDT’s telephone network, lines, or facilities over a
period of time for consideration is the business that it
provides to its customers, which enables the latter to
send various messages to intended recipients. Such
use over a period of time is akin to merchandise which
has value and, therefore, can be appropriated by
another. According to respondent PLDT, this is what
actually happened when petitioner Laurel and the
other accused below conducted illegal ISR
operations.34
The petition is meritorious.
The issues for resolution are as follows: (a) whether or
not the petition for certiorari is the proper remedy of
the petitioner in the Court of Appeals; (b) whether or
not international telephone calls using Bay Super
Orient Cards through the telecommunication services
provided by PLDT for such calls, or, in short, PLDT’s
business of providing said telecommunication
services, are proper subjects of theft under Article 308
of the Revised Penal Code; and (c) whether or not the
trial court committed grave abuse of discretion
amounting to excess or lack of jurisdiction in denying
the motion of the petitioner to quash the amended
information.
On the issue of whether or not the petition for
certiorari instituted by the petitioner in the CA is
proper, the general rule is that a petition for certiorari
under Rule 65 of the Rules of Court, as amended, to
nullify an order denying a motion to quash the
Information is inappropriate because the aggrieved
party has a remedy of appeal in the ordinary course of
law. Appeal and certiorari are mutually exclusive of
each other. The remedy of the aggrieved party is to
continue with the case in due course and, when an
unfavorable judgment is rendered, assail the order
and the decision on appeal. However, if the trial court
issues the order denying the motion to quash the
Amended Information with grave abuse of discretion
amounting to excess or lack of jurisdiction, or if such
order is patently erroneous, or null and void for being
contrary to the Constitution, and the remedy of appeal
would not afford adequate and expeditious relief, the
accused may resort to the extraordinary remedy of
certiorari.35 A special civil action for certiorari is also
available where there are special circumstances
clearly demonstrating the inadequacy of an appeal. As
this Court held in Bristol Myers Squibb (Phils.), Inc. v.
Viloria:36
Nonetheless, the settled rule is that a writ of certiorari
may be granted in cases where, despite availability of
appeal after trial, there is at least a prima facie
showing on the face of the petition and its annexes
that: (a) the trial court issued the order with grave
abuse of discretion amounting to lack of or in excess
of jurisdiction; (b) appeal would not prove to be a
speedy and adequate remedy; (c) where the order is a
patent nullity; (d) the decision in the present case will
arrest future litigations; and (e) for certain
considerations such as public welfare and public
policy.37
In his petition for certiorari in the CA, petitioner
averred that the trial court committed grave abuse of
its discretion amounting to excess or lack of
jurisdiction when it denied his motion to quash the
Amended Information despite his claim that the
material allegations in the Amended Information do
not charge theft under Article 308 of the Revised
Penal Code, or any offense for that matter. By so
doing, the trial court deprived him of his
constitutional right to be informed of the nature of the
charge against him. He further averred that the order
of the trial court is contrary to the constitution and is,
thus, null and void. He insists that he should not be
compelled to undergo the rigors and tribulations of a
protracted trial and incur expenses to defend himself
against a non-existent charge.
Petitioner is correct.
An information or complaint must state explicitly and
directly every act or omission constituting an offense 38
and must allege facts establishing conduct that a
penal statute makes criminal;39 and describes the
property which is the subject of theft to advise the
accused with reasonable certainty of the accusation he
is called upon to meet at the trial and to enable him to
rely on the judgment thereunder of a subsequent
prosecution for the same offense.40 It must show, on
its face, that if the alleged facts are true, an offense
has been committed. The rule is rooted on the
constitutional right of the accused to be informed of
the nature of the crime or cause of the accusation
against him. He cannot be convicted of an offense
even if proven unless it is alleged or necessarily
included in the Information filed against him.
As a general prerequisite, a motion to quash on the
ground that the Information does not constitute the
offense charged, or any offense for that matter, should
be resolved on the basis of said allegations whose
truth and veracity are hypothetically committed;41 and
on additional facts admitted or not denied by the
prosecution.42 If the facts alleged in the Information
do not constitute an offense, the complaint or
information should be quashed by the court.43
We have reviewed the Amended Information and find
that, as mentioned by the petitioner, it does not
contain material allegations charging the petitioner of
theft of personal property under Article 308 of the
Revised Penal Code. It, thus, behooved the trial court
to quash the Amended Information. The Order of the
trial court denying the motion of the petitioner to
quash the Amended Information is a patent nullity.
On the second issue, we find and so hold that the
international telephone calls placed by Bay Super
Orient Card holders, the telecommunication services
provided by PLDT and its business of providing said
services are not personal properties under Article 308
of the Revised Penal Code. The construction by the
respondents of Article 308 of the said Code to include,
within its coverage, the aforesaid international
telephone calls, telecommunication services and
business is contrary to the letter and intent of the law.
The rule is that, penal laws are to be construed
strictly. Such rule is founded on the tenderness of the
law for the rights of individuals and on the plain
principle that the power of punishment is vested in
Congress, not in the judicial department. It is
Congress, not the Court, which is to define a crime,
and ordain its punishment.44 Due respect for the
prerogative of Congress in defining crimes/felonies
constrains the Court to refrain from a broad
interpretation of penal laws where a "narrow
interpretation" is appropriate. The Court must take
heed to language, legislative history and purpose, in
order to strictly determine the wrath and breath of the
conduct the law forbids.45 However, when the
congressional purpose is unclear, the court must
apply the rule of lenity, that is, ambiguity concerning
the ambit of criminal statutes should be resolved in
favor of lenity.46
Penal statutes may not be enlarged by implication or
intent beyond the fair meaning of the language used;
and may not be held to include offenses other than
those which are clearly described, notwithstanding
that the Court may think that Congress should have
made them more comprehensive.47 Words and phrases
in a statute are to be construed according to their
common meaning and accepted usage.
As Chief Justice John Marshall declared, "it would be
dangerous, indeed, to carry the principle that a case
which is within the reason or
mischief of a statute is within its provision, so far as to
punish a crime not enumerated in the statute because
it is of equal atrocity, or of kindred character with
those which are enumerated.48 When interpreting a
criminal statute that does not explicitly reach the
conduct in question, the Court should not base an
expansive reading on inferences from subjective and
variable understanding.49
Article 308 of the Revised Penal Code defines theft as
follows:
Art. 308. Who are liable for theft.– Theft is committed
by any person who, with intent to gain but without
violence, against or intimidation of persons nor force
upon things, shall take personal property of another
without the latter’s consent.
The provision was taken from Article 530 of the
Spanish Penal Code which reads:
1. Los que con ánimo de lucrarse, y sin violencia o
intimidación en las personas ni fuerza en las cosas,
toman las cosas muebles ajenas sin la voluntad de su
dueño.50
For one to be guilty of theft, the accused must have an
intent to steal (animus furandi) personal property,
meaning the intent to deprive another of his
ownership/lawful possession of personal property
which intent is apart from and concurrently with the
general criminal intent which is an essential element
of a felony of dolo (dolus malus).
An information or complaint for simple theft must
allege the following elements: (a) the taking of
personal property; (b) the said property belongs to
another; (c) the taking be done with intent to gain;
and (d) the taking be accomplished without the use of
violence or intimidation of person/s or force upon
things.51
One is apt to conclude that "personal property"
standing alone, covers both tangible and intangible
properties and are subject of theft under the Revised
Penal Code. But the words "Personal property" under
the Revised Penal Code must be considered in tandem
with the word "take" in the law. The statutory
definition of "taking" and movable property indicates
that, clearly, not all personal properties may be the
proper subjects of theft. The general rule is that, only
movable properties which have physical or material
existence and susceptible of occupation by another are
proper objects of theft.52 As explained by Cuelo Callon:
"Cosa juridicamente es toda sustancia corporal,
material, susceptible de ser aprehendida que tenga un
valor cualquiera."53
According to Cuello Callon, in the context of the Penal
Code, only those movable properties which can be
taken and carried from the place they are found are
proper subjects of theft. Intangible properties such as
rights and ideas are not subject of theft because the
same cannot be "taken" from the place it is found and
is occupied or appropriated.
Solamente las cosas muebles y corporales pueden ser
objeto de hurto. La sustracción de cosas inmuebles y
la cosas incorporales (v. gr., los derechos, las ideas) no
puede integrar este delito, pues no es posible asirlas,
tomarlas, para conseguir su apropiación. El Codigo
emplea la expresión "cosas mueble" en el sentido de
cosa que es susceptible de ser llevada del lugar donde
se encuentra, como dinero, joyas, ropas, etcétera, asi
que su concepto no coincide por completo con el
formulado por el Codigo civil (arts. 335 y 336).54
Thus, movable properties under Article 308 of the
Revised Penal Code should be distinguished from the
rights or interests to which they relate. A naked right
existing merely in contemplation of law, although it
may be very valuable to the person who is entitled to
exercise it, is not the subject of theft or larceny. 55 Such
rights or interests are intangible and cannot be
"taken" by another. Thus, right to produce oil, good
will or an interest in business, or the right to engage in
business, credit or franchise are properties. So is the
credit line represented by a credit card. However, they
are not proper subjects of theft or larceny because
they are without form or substance, the mere "breath"
of the Congress. On the other hand, goods, wares and
merchandise of businessmen and credit cards issued
to them are movable properties with physical and
material existence and may be taken by another;
hence, proper subjects of theft.
There is "taking" of personal property, and theft is
consummated when the offender unlawfully acquires
possession of personal property even if for a short
time; or if such property is under the dominion and
control of the thief. The taker, at some particular
amount, must have obtained complete and absolute
possession and control of the property adverse to the
rights of the owner or the lawful possessor thereof. 56 It
is not necessary that the property be actually carried
away out of the physical possession of the lawful
possessor or that he should have made his escape with
it.57 Neither asportation nor actual manual possession
of property is required. Constructive possession of the
thief of the property is enough.58
The essence of the element is the taking of a thing out
of the possession of the owner without his privity and
consent and without animus revertendi.59
Taking may be by the offender’s own hands, by his use
of innocent persons without any felonious intent, as
well as any mechanical device, such as an access
device or card, or any agency, animate or inanimate,
with intent to gain. Intent to gain includes the
unlawful taking of personal property for the purpose
of deriving utility, satisfaction, enjoyment and
pleasure.60
We agree with the contention of the respondents that
intangible properties such as electrical energy and gas
are proper subjects of theft. The reason for this is that,
as explained by this Court in United States v. Carlos 61
and United States v. Tambunting,62 based on decisions
of the Supreme Court of Spain and of the courts in
England and the United States of America, gas or
electricity are capable of appropriation by another
other than the owner. Gas and electrical energy may
be taken, carried away and appropriated. In People v.
Menagas,63 the Illinois State Supreme Court declared
that electricity, like gas, may be seen and felt.
Electricity, the same as gas, is a valuable article of
merchandise, bought and sold like other personal
property and is capable of appropriation by another.
It is a valuable article of merchandise, bought and
sold like other personal property, susceptible of being
severed from a mass or larger quantity and of being
transported from place to place. Electrical energy
may, likewise, be taken and carried away. It is a
valuable commodity, bought and sold like other
personal property. It may be transported from place
to place. There is nothing in the nature of gas used for
illuminating purposes which renders it incapable of
being feloniously taken and carried away.
In People ex rel Brush Electric Illuminating Co. v.
Wemple,64 the Court of Appeals of New York held that
electric energy is manufactured and sold in
determinate quantities at a fixed price, precisely as are
coal, kerosene oil, and gas. It may be conveyed to the
premises of the consumer, stored in cells of different
capacity known as an accumulator; or it may be sent
through a wire, just as gas or oil may be transported
either in a close tank or forced through a pipe. Having
reached the premises of the consumer, it may be used
in any way he may desire, being, like illuminating gas,
capable of being transformed either into heat, light, or
power, at the option of the purchaser. In Woods v.
People,65 the Supreme Court of Illinois declared that
there is nothing in the nature of gas used for
illuminating purposes which renders it incapable of
being feloniously taken and carried away. It is a
valuable article of merchandise, bought and sold like
other personal property, susceptible of being severed
from a mass or larger quantity and of being
transported from place to place.
Gas and electrical energy should not be equated with
business or services provided by business
entrepreneurs to the public. Business does not have
an exact definition. Business is referred as that which
occupies the time, attention and labor of men for the
purpose of livelihood or profit. It embraces everything
that which a person can be employed.66 Business may
also mean employment, occupation or profession.
Business is also defined as a commercial activity for
gain benefit or advantage.67 Business, like services in
business, although are properties, are not proper
subjects of theft under the Revised Penal Code
because the same cannot be "taken" or "occupied." If
it were otherwise, as claimed by the respondents,
there would be no juridical difference between the
taking of the business of a person or the services
provided by him for gain, vis-à-vis, the taking of
goods, wares or merchandise, or equipment
comprising his business.68 If it was its intention to
include "business" as personal property under Article
308 of the Revised Penal Code, the Philippine
Legislature should have spoken in language that is
clear and definite: that business is personal property
under Article 308 of the Revised Penal Code.69
We agree with the contention of the petitioner that, as
gleaned from the material averments of the Amended
Information, he is charged of "stealing the
international long distance calls belonging to PLDT"
and the use thereof, through the ISR. Contrary to the
claims of the OSG and respondent PLDT, the
petitioner is not charged of stealing P20,370,651.95
from said respondent. Said amount of P20,370,651.95
alleged in the Amended Information is the aggregate
amount of access, transmission or termination
charges which the PLDT expected from the
international long distance calls of the callers with the
use of Baynet Super Orient Cards sold by Baynet Co.
Ltd.
In defining theft, under Article 308 of the Revised
Penal Code, as the taking of personal property without
the consent of the owner thereof, the Philippine
legislature could not have contemplated the human
voice which is converted into electronic impulses or
electrical current which are transmitted to the party
called through the PSTN of respondent PLDT and the
ISR of Baynet Card Ltd. within its coverage. When the
Revised Penal Code was approved, on December 8,
1930, international telephone calls and the
transmission and routing of electronic voice signals or
impulses emanating from said calls, through the
PSTN, IPL and ISR, were still non-existent. Case law
is that, where a legislative history fails to evidence
congressional awareness of the scope of the statute
claimed by the respondents, a narrow interpretation
of the law is more consistent with the usual approach
to the construction of the statute. Penal responsibility
cannot be extended beyond the fair scope of the
statutory mandate.70
Respondent PLDT does not acquire possession, much
less, ownership of the voices of the telephone callers
or of the electronic voice signals or current emanating
from said calls. The human voice and the electronic
voice signals or current caused thereby are intangible
and not susceptible of possession, occupation or
appropriation by the respondent PLDT or even the
petitioner, for that matter. PLDT merely transmits the
electronic voice signals through its facilities and
equipment. Baynet Card Ltd., through its operator,
merely intercepts, reroutes the calls and passes them
to its toll center. Indeed, the parties called receive the
telephone calls from Japan.
In this modern age of technology, telecommunications
systems have become so tightly merged with
computer systems that it is difficult to know where
one starts and the other finishes. The telephone set is
highly computerized and allows computers to
communicate across long distances.71 The
instrumentality at issue in this case is not merely a
telephone but a telephone inexplicably linked to a
computerized communications system with the use of
Baynet Cards sold by the Baynet Card Ltd. The
corporation uses computers, modems and software,
among others, for its ISR.72
The conduct complained of by respondent PLDT is
reminiscent of "phreaking" (a slang term for the
action of making a telephone system to do something
that it normally should not allow by "making the
phone company bend over and grab its ankles"). A
"phreaker" is one who engages in the act of
manipulating phones and illegally markets telephone
services.73 Unless the phone company replaces all its
hardware, phreaking would be impossible to stop. The
phone companies in North America were impelled to
replace all their hardware and adopted full digital
switching system known as the Common Channel
Inter Office Signaling. Phreaking occurred only during
the 1960’s and 1970’s, decades after the Revised Penal
Code took effect.
The petitioner is not charged, under the Amended
Information, for theft of telecommunication or
telephone services offered by PLDT. Even if he is, the
term "personal property" under Article 308 of the
Revised Penal Code cannot be interpreted beyond its
seams so as to include "telecommunication or
telephone services" or computer services for that
matter. The word "service" has a variety of meanings
dependent upon the context, or the sense in which it
is used; and, in some instances, it may include a sale.
For instance, the sale of food by restaurants is usually
referred to as "service," although an actual sale is
involved.74 It may also mean the duty or labor to be
rendered by one person to another; performance of
labor for the benefit of another.75 In the case of PLDT,
it is to render local and international
telecommunications services and such other services
as authorized by the CPCA issued by the NTC. Even at
common law, neither time nor services may be taken
and occupied or appropriated.76 A service is generally
not considered property and a theft of service would
not, therefore, constitute theft since there can be no
caption or asportation.77 Neither is the unauthorized
use of the equipment and facilities of PLDT by the
petitioner theft under the aforequoted provision of the
Revised Penal Code.78
If it was the intent of the Philippine Legislature, in
1930, to include services to be the subject of theft, it
should have incorporated the same in Article 308 of
the Revised Penal Code. The Legislature did not. In
fact, the Revised Penal Code does not even contain a
definition of services.
If taking of telecommunication services or the
business of a person, is to be proscribed, it must be by
special statute79 or an amendment of the Revised
Penal Code. Several states in the United States, such
as New York, New Jersey, California and Virginia,
realized that their criminal statutes did not contain
any provisions penalizing the theft of services and
passed laws defining and penalizing theft of telephone
and computer services. The Pennsylvania Criminal
Statute now penalizes theft of services, thus:
(a) Acquisition of services. --
(1) A person is guilty of theft if he intentionally
obtains services for himself or for another which he
knows are available only for compensation, by
deception or threat, by altering or tampering with the
public utility meter or measuring device by which
such services are delivered or by causing or permitting
such altering or tampering, by making or maintaining
any unauthorized connection, whether physically,
electrically or inductively, to a distribution or
transmission line, by attaching or maintaining the
attachment of any unauthorized device to any cable,
wire or other component of an electric, telephone or
cable television system or to a television receiving set
connected to a cable television system, by making or
maintaining any unauthorized modification or
alteration to any device installed by a cable television
system, or by false token or other trick or artifice to
avoid payment for the service.
In the State of Illinois in the United States of America,
theft of labor or services or use of property is
penalized:
(a) A person commits theft when he obtains the
temporary use of property, labor or services of
another which are available only for hire, by means of
threat or deception or knowing that such use is
without the consent of the person providing the
property, labor or services.
In 1980, the drafters of the Model Penal Code in the
United States of America arrived at the conclusion
that labor and services, including professional
services, have not been included within the traditional
scope of the term "property" in ordinary theft statutes.
Hence, they decided to incorporate in the Code
Section 223.7, which defines and penalizes theft of
services, thus:
(1) A person is guilty of theft if he purposely obtains
services which he knows are available only for
compensation, by deception or threat, or by false
token or other means to avoid payment for the
service. "Services" include labor, professional service,
transportation, telephone or other public service,
accommodation in hotels, restaurants or elsewhere,
admission to exhibitions, use of vehicles or other
movable property. Where compensation for service is
ordinarily paid immediately upon the rendering of
such service, as in the case of hotels and restaurants,
refusal to pay or absconding without payment or offer
to pay gives rise to a presumption that the service was
obtained by deception as to intention to pay; (2) A
person commits theft if, having control over the
disposition of services of others, to which he is not
entitled, he knowingly diverts such services to his own
benefit or to the benefit of another not entitled
thereto.
Interestingly, after the State Supreme Court of
Virginia promulgated its decision in Lund v.
Commonwealth,80 declaring that neither time nor
services may be taken and carried away and are not
proper subjects of larceny, the General Assembly of
Virginia enacted Code No. 18-2-98 which reads:
Computer time or services or data processing services
or information or data stored in connection therewith
is hereby defined to be property which may be the
subject of larceny under § § 18.2-95 or 18.2-96, or
embezzlement under § 18.2-111, or false pretenses
under § 18.2-178.
In the State of Alabama, Section 13A-8-10(a)(1) of the
Penal Code of Alabama of 1975 penalizes theft of
services:
"A person commits the crime of theft of services if: (a)
He intentionally obtains services known by him to be
available only for compensation by deception, threat,
false token or other means to avoid payment for the
services …"
In the Philippines, Congress has not amended the
Revised Penal Code to include theft of services or theft
of business as felonies. Instead, it approved a law,
Republic Act No. 8484, otherwise known as the
Access Devices Regulation Act of 1998, on February
11, 1998. Under the law, an access device means any
card, plate, code, account number, electronic serial
number, personal identification number and other
telecommunication services, equipment or
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.
Section 33 of Republic Act No. 8792, Electronic
Commerce Act of 2000 provides:
Sec. 33. Penalties.— The following Acts shall be
penalized by fine and/or imprisonment, as follows:
a) Hacking or cracking which refers to unauthorized
access into or interference in a computer
system/server or information and communication
system; or any access in order to corrupt, alter, steal,
or destroy using a computer or other similar
information and communication devices, without the
knowledge and consent of the owner of the computer
or information and communications system,
including the introduction of computer viruses and
the like, resulting on the corruption, destruction,
alteration, theft or loss of electronic data messages or
electronic documents shall be punished by a
minimum fine of One hundred thousand pesos
(P100,000.00) and a maximum commensurate to the
damage incurred and a mandatory imprisonment of
six (6) months to three (3) years.
IN LIGHT OF ALL THE FOREGOING, the petition is
GRANTED. The assailed Orders of the Regional Trial
Court and the Decision of the Court of Appeals are
REVERSED and SET ASIDE. The Regional Trial
Court is directed to issue an order granting the motion
of the petitioner to quash the Amended Information.
SO ORDERED.
ROMEO J. CALLEJO, SR.
Associate Justice
WE CONCUR:
(No part)
ARTEMIO V. PANGANIBAN
Chief Justice
Chairperson
MA. ALICIA AUSTRIA-
CONSUELO YNARES-SANTIAGO,
MARTINEZ
Associate Justice
Associate Justice
(On leave)
MINITA V. CHICO-NAZARIO*
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, it is hereby certified that the conclusions
in the above decision were reached in consultation
before the case was assigned to the writer of the
opinion of the Court’s Division.
ARTEMIO V. PANGANIBAN
Chief Justice
Footnotes
* On leave.
1
Penned by Associate Justice Bienvenido L. Reyes,
with Associate Justices Roberto A. Barrios and
Edgardo F. Sundiam, concurring.
2
an act further amending act no. 3436, as amended,
"xxx consolidating the terms and conditions of the
franchise granted to [pldt], and extending the said
franchise by twenty-five (25) years from the
expiration thereof xxx."
3
Rollo, pp. 129-130.
4
Id. at 131.
5
Id. at 131, 137.
6
Id.
7
Id. at 138.
8
Id. at 134.
9
Id. at 140.
10
Id. at 142-146.
11
Rollo, pp. 243-246.
12
NOW, THEREFORE, I FERDINAND E. MARCOS,
President of the Philippines, by virtue of the powers
vested in me by the Constitution a Commander-in-
Chief of all the Armed Forces of the Philippines, and
pursuant to Proclamation No. 1081 dated September
21, 1972, and General Order No. 1 dated September
22, 1972, as amended, do hereby order and decree
that any person who installs any water, electrical or
telephone connection without previous authority from
the Metropolitan Waterworks and Sewerage System,
the Manila Electric Company or the Philippine Long
Distance Telephone Company, as the case may be;
tampers and/or uses tampered water or electrical
meters or jumpers or other devices whereby water or
electricity is stolen; steals or pilfers water and/or
electric meters or water, electric and/or telephone
wires; knowingly possesses stolen or pilfered water
and/or electrical meters as well as stolen or pilfered
water, electrical and/or telephone wires, shall, upon
conviction, be punished by prision correccional in its
minimum period or a fine ranging from two thousand
to six thousand pesos, or both. If the violation is
committed with the connivance or permission of an
employee or officer of the Metropolitan Waterworks
and Sewerage System, or the Manila Electric
Company, or the Philippine Long Distance Telephone
Company, such employee or officer shall, upon
conviction, be punished by a penalty one degree lower
than prision correccional in its minimum period and
forthwith be dismissed and perpetually disqualified
from employment in any public or private utility or
service company.
13
Rollo, pp. 57-58. (Underscoring supplied)
14
Id. at 67-76.
15
Id. at 69. (Emphasis supplied)
16
Id. at 77-80.
17
Id. at 81-86.
18
31 Phil. 494 (1915).
19
Rollo, pp. 87-94.
20
44 Phil. 933, 935 (1922).
21
CA rollo, p. 6.
22
Id. at 9-11.
23
Id.
24
Id.
25
Resolution No. 149, Series of 1999 dated April 16,
1999 (I.S. No. 96-3884), rollo, pp. 95-97.
26
Id.
27
Id. at 32-47.
28
21 Phil. 553 (1911).
29
Supra note 20, at 935.
30
Rollo, pp. 18-19.
31
Id. at 689.
32
Id. at 691.
33
Id. at 669-670.
34
Rollo, p. 670.
35
Madarang v. Court of Appeals, G.R. No. 143044,
July 14, 2005, 463 SCRA 318, 327 (2005).
36
G.R. No. 148156, September 27, 2004, 439 SCRA
202 (2000).
37
Id. at 211.
38
Section 9, Rule 110 of the Revised Rules of Criminal
Procedure.
39
People v. Weg, 450 N.Y.S.2d 957 (1982).
40
Clines v. Commonwealth, 298 S.W. 1107 (1927).
41
Santiago v. Garchitorena, G.R. No. 109266,
December 2, 1993, 228 SCRA 214.
42
Garcia v. Court of Appeals, 334 Phil. 621, 634
(1997); People v. Navarro, 75 Phil. 516, 518 (1945).
43
Section 3(a), Rule 117 of the 2000 Rules of Criminal
Procedure.
44
United States v. Wiltberger, 18 U.S. 76 (1820).
45
Dowling v. United States, 473 U.S. 207 (1985).
46
Liparota v. United States, 105 S. Ct. 2084 (1985).
47
Kelley v. State, 119 N.E.2d 322 (1954); State v.
McGraw, 480 N.E.2d 552 (1985).
48
United States v. Wiltberger, supra note 44.
49
Dowling v. United States, supra note 45.
50
Viada, codigo penal reformado de 1870, concordado
y comentado, 219.
The felony has the following elements:
(1) Apoderamiento de una cosa mueble; (2) Que la
cosa mueble sea ajena; (3) Que el apoderamiento se
verifique con intención de lucro; (4) Que se tome la
cosa sin la voluntad de su dueño; (5) Que se realice el
apoderamiento de la cosa sin violencia intimidación
en las personas ni fuerza en las cosas (Viada, 220-
221).
51
People v. Sison, 379 Phil. 363, 384 (2000); People v.
Bustinera, G.R. No. 148233, June 8, 2004, 431 SCRA
284, 291.
52
Cuello Callon, Derecho Penal, Tomo II, p. 724.
53
Id.
54
See note 52, p. 725. (Underscoring supplied)
55
36 C.J.S. 737.
56
People v. Ashworth, 222 N.Y.S. 24 (1927).
57
People v. Salvilla, G.R. No. 86163, April 26, 1990,
184 SCRA 671, 677 (1990).
58
Harris v. State, 14 S.W. 390 (1890).
59
Woods v. People, 78 N.E. 607 (1906).
60
Villacorta v. Insurance Commission, G.R. No. 54171,
October 28, 1980, 100 SCRA 467.
61
Supra note 28.
62
41 Phil. 364 (1921).
63
11 N.E.2d 403 (1937).
64
29 N.E. 808 (1892). (Emphasis supplied)
65
Supra note 59 (Emphasis supplied)
66
Doggett v. Burnet, 65 F.2d 191 (1933).
67
Black’s Law Dictionary, 5th ed., p. 179; Union
League Club v. Johnson, 108 P.2d 487, 490 (1940).
68
United States v. McCraken, 19 C.M.R. 876 (1955).
69
People v. Tansey, 593 N.Y.S. 2d 426 (1992).
70
People v. Case, 42 N.Y.S. 2d 101.
71
Commonwealth v. Gerulis, 616 A.2d 686 (1992).
72
Rollo, p. 138.
73
Commonwealth v. Gerulis, supra note 71.
74
Central Power and Light Co. v. State, 165 S.W. 2d
920 (1942).
75
Black’s Law Dictionary, p. 1227.
76
Lund v. Commonwealth, 232 S.E.2d 745 (1977); 50
Am. Jur. 2d Larceny, p. 83.
77
Imbau, Thomson, Moenssens, Criminal Law, Second
Edition, p. 6247, 2 Wharton Criminal Law, Prodded ,
§ 604:369.
78
Id. at 746; Commonwealth v. Rivera, 583 N.E.2d
867 (1991).
79
People v. Tansey, supra note 69.
80
See note 76.

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