BAR SQUAD

Est. 2002

Essence of Penalties

UTILITARIAN THEORY OR PROTECTIVE THEORY: The primary purpose of the punishment under
criminal law is the protection of society from actual and potential wrongdoers.

Corollary to the view is the application of the theory that "criminal law is founded upon that moral
disapprobation of actions which are immoral, i.e., which are detrimental (or dangerous) to those
conditions upon which depend the existence and progress of human society. This disappropriation is
inevitable to the extent that morality is generally founded and built upon a certain concurrence in the
moral opinions of all. That which we call punishment is only an external means of emphasizing moral
disapprobation the method of punishment is in reality the amount of punishment," (Ibid., P.
11, citing People v. Roldan Zaballero, CA 54 O.G. 6904, Note also Justice Pablo's view in People v.
Piosca and Peremne, 86 Phil. 31).

Conditional Pardon Effects of Violation/ Liabilities

Conditional Pardon refers to the exemption of an individual, within certain limits or conditions, from
the punishment which the law inflicts for the offense he had committed resulting in the partial
extinction of his criminal liability (Revised Rules and Regulations of the Board of Pardons and Parole)

Any violation of the terms and conditions appearing in his Release Document or any serious
deviation or non-observance of the obligations set forth in the parole supervision program shall be
immediately reported by his Probation and Parole Officer to the Board. The report shall be called
Infraction Report when the client has been subsequently convicted of another crime. The Board may
recommend the cancellation of the pardon of a client if it finds that material information given by
said client to the Board, either before and after release, was false, or incomplete or that the client had
willfully or maliciously concealed material information from the Board. The Board may consider the
case of a recommitted parolee for the grant of a new parole after the latter shall have served one-
fourth (1/4) of the unserved portion of his maximum sentence. (Sec. 39, Sec. 42, Sec. 43 of the
Revised Rules and Regulations of the Board of Pardons and Parole)

LIABILITY. One who violates the condition of his pardon may be prosecuted and sentenced to
suffer prision correccional (Art. 159, RPC) in its minimum period without prejudice to the authority
conferred upon the President by section 64 (i) of the Revised Administrative Code to recommit him to
serve the unexpired portion of his original sentence, unless such unexpired portion exceeds 6 years,
in which case the penalty of prision correccional in its minimum period provided by article 159 of the
Revised Penal Code shall no longer be imposed. (Sales V. Director of Prisons)

Risos-Vidal vs. Lim

The pardoning power of the President cannot be limited by legislative action. The statement “is hereby
restored to his civil and political rights” is an absolute pardon granted. It was not only unconditional, it
was unrestricted in scope, complete and plenary in character, as the term "political rights" adverted to
has a settled meaning in law and jurisprudence.

Mosanto vs. Factoran

A pardon, albeit full and plenary, cannot preclude the appointing power from refusing appointment to
anyone deemed to be of bad character, a poor moral risk, or who is unsuitable by reason of the
pardoned conviction.

Civil liability arising from crime is governed by the Revised Penal Code. It subsists notwithstanding
service of sentence, or for any reason the sentence is not served by pardon, amnesty or commutation
of sentence. Civil liability may only be extinguished by the same causes recognized in the Civil Code,
namely: payment, loss of the thing due, remission of the debt, merger of the rights of creditor and
debtor, compensation and novation.

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De Castro vs. People of the Philippines

According to Article 48 of the Revised Penal Code, the penalty for a complex crime is that
corresponding to the most serious crime, the same to be applied in its maximum period. Otherwise,
the penalty will be void and ineffectual, and will not attain finality.

Zafra vs. People of the Philippines

All trial and appellate courts to avoid omitting reliefs that the parties are properly entitled to by law or in
equity under the established facts. Their judgments will not be worthy of the name unless they thereby
fully determine the rights and obligations of the litigants. It cannot be otherwise, for only by a full
determination of such rights and obligations would they betrue to the judicial office of administering
justice and equity for all. Courts should then be alert and cautious in their rendition of judgments of
conviction in criminal cases. They should prescribe the legal penalties, which is what the Constitution
and the law require and expect them to do. Their prescription of the wrong penalties will be invalid and
ineffectual for being done without jurisdiction or in manifest grave abuse of discretion amounting to
lack of jurisdiction. They should also determine and set the civil liability ex delicto of the accused, in
order to do justice to the complaining victims who are always entitled to them. The Rules of Court
mandates them to do so unless the enforcement of the civil liability by separate actions has been
reserved or waived.

Distinguish Takbobo Principle vs Nang Kay Principle

Takbobo Principle Nang Kay Principle

in a parricide case, the trial court imposed the Where the application of the law on
penalty next lower, which is reclusion temporal, indeterminate sentence would be unfavorable
applying paragraph 5 of Article 64 since the to the accused, resulting in the lengthening of
crime was attended by two mitigating his prison sentence, said law on indeterminate
circumstances without any aggravating sentence should not be applied.
circumstance. In reversing the decision of the
lower court, we ruled that the penalty imposed
was not correct since the rule applicable in said
case is found in Article 63, and not in Article 64,
of the Code.

Article 63. Rules for the application of indivisible penalties. - In all cases in which the law
prescribes a single indivisible penalty, it shall be applied by the courts regardless of any mitigating or
aggravating circumstances that may have attended the commission of the deed.

In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following
rules shall be observed in the application thereof:
1. When in the commission of the deed there is present only one aggravating circumstance,
the greater penalty shall be applied.
2. When there are neither mitigating nor aggravating circumstances and there is no
aggravating circumstance, the lesser penalty shall be applied.
3. When the commission of the act is attended by some mitigating circumstances and there is
no aggravating circumstance, the lesser penalty shall be applied.
4. When both mitigating and aggravating circumstances attended the commission of the act,
the court shall reasonably allow them to offset one another in consideration of their number
and importance, for the purpose of applying the penalty in accordance with the preceding
rules, according to the result of such compensation.

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Applying Article 63, when the penalty is composed of two indivisible penalties, the penalty
cannot be lowered by one degree, no matter how many mitigating circumstances are present.

Article 64. Rules for the application of penalties which contain three periods. - In cases in which
the penalties prescribed by law contain three periods, whether it be a single divisible penalty or
composed of three different penalties, each one of which forms a period in accordance with the
provisions of Articles 76 and 77, the court shall observe for the application of the penalty the following
rules, according to whether there are or are not mitigating or aggravating circumstances:

1. When there are neither aggravating nor mitigating circumstances, they shall impose the
penalty prescribed by law in its medium period.
2. When only a mitigating circumstances is present in the commission of the act, they shall
impose the penalty in its minimum period.
3. When an aggravating circumstance is present in the commission of the act, they shall
impose the penalty in its maximum period.
4. When both mitigating and aggravating circumstances are present, the court shall reasonably
offset those of one class against the other according to their relative weight.
5. When there are two or more mitigating circumstances and no aggravating circumstances are
present, the court shall impose the penalty next lower to that prescribed by law, in the period
that it may deem applicable, according to the number and nature of such circumstances.
6. Whatever may be the number and nature of the aggravating circumstances, the courts shall
not impose a greater penalty than that prescribed by law, in its maximum period.
7. Within the limits of each period, the court shall determine the extent of the penalty according
to the number and nature of the aggravating and mitigating circumstances and the greater and
lesser extent of the evil produced by the crime.

Probation Law

Section 4 of Presidential Decree No. 968, as amended, is hereby further amended to read as follows:

SEC. 4. Grant of Probation. — Subject to the provisions of this Decree, the trial court may, after it
shall have convicted and sentenced a defendant for a probationable penalty and upon application by
said defendant within the period for perfecting an appeal, suspend the execution of the sentence and
place the defendant on probation for such period and upon such terms and conditions as it may deem
best. No application for probation shall be entertained or granted if the defendant has perfected the
appeal from the judgment of conviction: Provided, That when a judgment of conviction imposing a
non-probationable penalty is appealed or reviewed, and such judgment is modified through the
imposition of a probationable penalty, the defendant shall be allowed to apply for probation based on
the modified decision before such decision becomes final. The application for probation based on the
modified decision shall be filed in the trial court where the judgment of conviction imposing a non-
probationable penalty was rendered, or in the trial court where such case has since been re-raffled. In
a case involving several defendants where some have taken further appeal, the other defendants may
apply for probation by submitting a written application and attaching thereto a certified true copy of the
judgment of conviction.

The trial court shall, upon receipt of the application filed, suspend the execution of the sentence
imposed in the judgment.

This notwithstanding, the accused shall lose the benefit of probation should he seek a review of the
modified decision which already imposes a probationable penalty.

Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. The
filing of the application shall be deemed a waiver of the right to appeal.

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An order granting or denying probation shall not be appealable.

SEC. 9. Disqualified Offenders. — The benefits of Probation Law shall not be extended to those:
a. sentenced to serve a maximum term of imprisonment of more than six (6) years;
b. convicted of any crime against the national security;
c. who have previously been convicted by final judgment of an offense punished by
imprisonment of more than six (6) months and one (1) day and/or a fine of more than one
thousand pesos (P1,000.00);
d. who have been once on probation under the provisions of this Decree; and
e. who are already serving sentence at the time the substantive provisions of this Decree
became applicable pursuant to Section 33 hereof.

Section 14. Period of Probation.

(a) The period of probation of a defendant sentenced to a term of imprisonment of not more than one
year shall not exceed two years, and in all other cases, said period shall not exceed six years.
(b) When the sentence imposes a fine only and the offender is made to serve subsidiary imprisonment
in case of insolvency, the period of probation shall not be less than nor to be more than twice the total
number of days of subsidiary imprisonment as computed at the rate established, in Article thirty-nine of
the Revised Penal Code, as amended.

Sec 16. The final discharge of the probationer shall operate to restore to him all civil rights lost or
suspended as a result of his conviction and to totally extinguish his criminal liability as to the offense
for which probation was granted.

Martin Simon Case

An overlapping error in the provisions on the penalty of reclusion perpetua by reason of its dual
imposition, that is, as the maximum of the penalty where the marijuana is less than 750 grams, and
also as the minimum of the penalty where the marijuana involved is 750 grams or more. The same
error has been committed with respect to the other prohibited and regulated drugs provided in said
Section 20. To harmonize such conflicting provisions in order to give effect to the whole law,57 we
hereby hold that the penalty to be imposed where the quantity of the drugs involved is less than the
quantities stated in the first paragraph shall range from prision correccional to reclusion temporal, and
not reclusion perpetua. This is also concordant with the fundamental rule in criminal law that all doubts
should be construed in a manner favorable to the accused.

The peculiarity of the second paragraph of Section 20, however, is its specific mandate, above quoted,
that the penalty shall instead depend upon the quantity of the drug subject of the criminal transaction.
59 Accordingly, by way of exception to Article 77 of the Code and to subserve the purpose of Section
20 of Republic Act No. 7659, each of the aforesaid component penalties shall be considered as a
principal imposable penalty depending on the quantity of the drug involved. Thereby, the modifying
circumstances will not altogether be disregarded. Since each component penalty of the total complex
penalty will have to be imposed separately as determined by the quantity of the drug involved, then
the modifying circumstances can be used to fix the proper period of that component penalty, as shall
hereafter be explained.

Human Security Act

SEC. 3. Terrorism.- Any person who commits an act punishable under any of the following provisions
of the Revised Penal Code:
1. Article 122 (Piracy in General and Mutiny in the High Seas or in the Philippine Waters)
2. Article 134 (Rebellion or Insurrection);
3. Article 134-a (Coup d' Etat), including acts committed by private persons;
4. Article 248 (Murder);

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5. Article 267 (Kidnapping and Serious Illegal Detention);

6. Article 324 (Crimes Involving Destruction), or under
7. Presidential Decree No. 1613 (The Law on Arson);
8. Republic Act No. 6969 (Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990);
9. Republic Act No. 5207, (Atomic Energy Regulatory and Liability Act of 1968);
10. Republic Act No. 6235 (Anti-Hijacking Law);
11. Presidential Decree No. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974); and,
12. Presidential Decree No. 1866, as amended (Decree Codifying the Laws on Illegal and Unlawful
Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions or
Explosives)

thereby sowing and creating a condition of widespread and extraordinary fear and panic among the
populace, in order to coerce the government to give in to an unlawful demand shall be guilty of the
crime of terrorism and shall suffer the penalty of forty (40) years of imprisonment, without the benefit of
parole as provided for under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as
amended.

Estafa in illegal recruitment

It is well-established in jurisprudence that a person may be charged and convicted for both illegal
recruitment and estafa. The reason therefor is not hard to discern: illegal recruitment is malum
prohibitum, while estafa is mala in se. In the first, the criminal intent of the accused is not necessary
for conviction. In the second, such intent is imperative. Estafa under Article 315, paragraph 2(a) of the
Revised Penal Code is committed by any person who defrauds another by using fictitious name, or
falsely pretends to possess power, influence, qualifications, property, credit, agency, business or
imaginary transactions, or by means of similar deceits executed prior to or simultaneously with the
commission of fraud.27(Ppl V Chua)

Cybercrime Law R.A. 10175

Ethical Hackers: Ethical hackers evaluate the target system’s security and report back to the
owners the vulnerabilities they found in it and give instructions for how these can be remedied.

Overbreadth Doctrine; Section 4(a)(3) of R.A. No. 10175 punishes what essentially is a form of
vandalism, the act of willfully destroying without right the things that belong to others, in this case their
computer data, electronic document, or electronic data message.—Under the overbreadth doctrine, a
proper governmental purpose, constitutionally subject to state regulation, may not be achieved by
means that unnecessarily sweep its subject broadly, thereby invading the area of protected freedoms.
But Section 4(a)(3) does not encroach on these freedoms at all. It simply punishes what essentially is
a form of vandalism, the act of willfully destroying without right the things that belong to others, in this
case their computer data, electronic document, or electronic data message. Such act has no
connection to guaranteed freedoms. There is no freedom to destroy other people’s computer systems
and private documents.

All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in
terrorem effect or the fear of possible prosecution that hangs on the heads of citizens who are minded
to step beyond the boundaries of what is proper.—All penal laws, like the cybercrime law, have of
course an inherent chilling effect, an in terrorem effect or the fear of possible prosecution that hangs
on the heads of citizens who are minded to step beyond the boundaries of what is proper. But to
prevent the State from legislating criminal laws because they instill such kind of fear is to render the
state powerless in addressing and penalizing socially harmful conduct. Here, the chilling effect that
results in paralysis is an illusion since Section 4(a)(3) clearly describes the evil that it seeks to punish
and creates no tendency to intimidate the free exercise of one’s constitutional rights.

The theft of identity information must be intended for an illegitimate purpose.—Petitioners fear
that Section 4(b)(3) violates the freedom of the press in that journalists would be hindered from

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accessing the unrestricted user account of a person in the news to secure information about him that
could be published. But this is not the essence of identity theft that the law seeks to prohibit and
punish. Evidently, the theft of identity information must be intended for an illegitimate purpose.
Moreover, acquiring and disseminating information made public by the user himself cannot be
regarded as a form of theft.

Cyberlibel is actually not a new crime since Article 353, in relation to Article 355 of the penal
code, already punishes it. In effect, Section 4(c)(4) above merely affirms that online defamation
constitutes “similar means” for committing libel.—The UNHRC did not actually enjoin the Philippines,
as petitioners urge, to decriminalize libel. It simply suggested that defamation laws be crafted with
care to ensure that they do not stifle freedom of expression. Indeed, the ICCPR states that although
everyone should enjoy freedom of expression, its exercise carries with it special duties and
responsibilities. Free speech is not absolute. It is subject to certain restrictions, as may be necessary
and as may be provided by law. The Court agrees with the Solicitor General that libel is not a
constitutionally protected speech and that the government has an obligation to protect private
individuals from defamation. Indeed, cyberlibel is actually not a new crime since Article 353, in relation
to Article 355 of the penal code, already punishes it. In effect, Section 4(c)(4) above merely affirms that
online defamation constitutes “similar means” for committing libel.

Cybersecurity refers to the collection of tools, policies, risk management approaches, actions,
training, best practices, assurance and technologies that can be used to protect cyber environment
and organization and user’s assets. This definition serves as the parameters within which CICC
should work in formulating the cybersecurity plan.

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VALID AND CONSTITUTIONAL VOID for being UNCONSTITUTIONAL

a. Section 4(a)(1) that penalizes accessing a a. Section 4(c)(3) of Republic Act 10175 that
computer system without right; penalizes posting of unsolicited commercial
b. Section 4(a)(3) that penalizes data communications;
interference, including transmission of viruses; b. Section 12 that authorizes the collection or
c. Section 4(a)(6) that penalizes cyber-squatting recording of traffic data in real-time; and
or acquiring domain name over the internet in c. Section 19 of the same Act that authorizes the
bad faith to the prejudice of others; Department of Justice to restrict or block access
d. Section 4(b)(3) that penalizes identity theft or to suspected Computer Data.
the use or misuse of identifying information
belonging to another;
e. Section 4(c)(1) that penalizes cybersex or the
lascivious exhibition of sexual organs or sexual
activity for favor or consideration;
f. Section 4(c)(2) that penalizes the production
of child pornography;
g. Section 6 that imposes penalties one degree
higher when crimes defined under the Revised
Penal Code are committed with the use of
information and communications technologies;
h. Section 8 that prescribes the penalties for
cybercrimes;
i. Section 13 that permits law enforcement
authorities to require service providers to
preserve traffic data and subscriber information
as well as specified content data for six months;
j. Section 14 that authorizes the disclosure of
computer data under a court-issued warrant;
k. Section 15 that authorizes the search,
seizure, and examination of computer data
under a court-issued warrant;
l. Section 17 that authorizes the destruction of
previously preserved computer data after the
expiration of the prescribed holding periods;
m. Section 20 that penalizes obstruction of
justice in relation to cybercrime investigations;
n. Section 24 that establishes a Cybercrime
Investigation and Coordinating Center (CICC);
o. Section 26(a) that defines the CICC’s Powers
and Functions; and
p. Articles 353, 354, 361, and 362 of the
Revised Penal Code that penalizes libel.

Further, the Court DECLARES:

1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with respect to the
original author of the post; but VOID and UNCONSTITUTIONAL with respect to others who simply
receive the post and react to it; and
2. Section 5 that penalizes aiding or abetting and attempt in the commission of cybercrimes as VA L I
D and CONSTITUTIONAL only in relation to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on
Illegal Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System

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Death by Hazing

HAZING as used in this Act is an initiation rite or practice as a prerequisite for admission into
membership in a fraternity, sorority or organization by placing the recruit, neophyte or applicant in
some embarrassing or humiliating situations such as forcing him/her to do menial, silly, foolish and
similar tasks or activities or otherwise subjecting him/her to physical or psychological suffering or
injury.

Sec. 4 If the person subjected to hazing or other forms of initiation rites suffers any physical injury or
dies as a result thereof, the officers and members of the fraternity, sorority or organization who actually
participated in the infliction of physical harm shall be liable as principals.

PENALITIES: The person or persons who participated in the hazing shall suffer.
a.) RP: if death, rape, sodomy or mutilation results therefrom.
b.) RT: in its maximum period if in consequence of the hazing the victim shall become insane,
imbecile, impotent or blind.
c.) RT: in its maximum period if in consequence of the hazing the victim shall have lost the use
of speech or the power to hear or to smell, or shall have lost an eye, a hand, a foot, an arm or
a leg shall have lost the use of nay such member shall have become incapacitated for the
activity or work in which he/she was habitually engaged.
d.) RT: in its minimum period if in consequence of the hazing the victim shall become
deformed or shall have lost any other part of his/her body, or shall have lost the use thereof or
shall have been ill or incapacitated for the performance of the activity or work in which he/she
has habitually engaged for a period of more than ninety (90) days.
e.) PMayor in its maximum period if in consequence of the hazing the victim shall have been ill
or incapacitated for the performance of the activity or work in which he was habitually engaged
for more than thirty (30) days.
f.) PMayor in its medium period if in consequence of the hazing the victim shall have been ill or
capacitated for the performance of the activity or work in which he was habitually engaged for
ten (10) days or more, or that the injury sustained shall require medical attendance for the
same period.
g.) PMayor in its period if in consequence of the hazing the victim shall have been ill or
incapacitated for the performance of the activity or work in which he was habitually engaged
from one (1) to nine (9) days, or that the injury sustained shall require medical attendance for
the same period.
h.) PCorrectional in its maximum period if in consequence of the hazing the victim shall sustain
physical injuries, which do not prevent him/her from engaging in his habitual activity, or work
nor require medical attendance.

Dungo & Sibal vs People of the Philippines

Excessive intake of alcohol in the fraternity initiations can be considered as hazing. In Oja v. Grand
Chapter of Theta Chi Fraternity Inc., a 17-year old college freshman died as a result of aspirating his
own vomit after consuming excessive amounts of alcohol in a fraternity initiation ritual. The defendants
in the said case contended that they only furnished the alcohol drinks to the victim. The court denied
the defense because such acts of the fraternity effectively contributed to the death of the victim as part
of their hazing.

From the said definition, the elements of the crime of hazing can be determined:
1. That there is an initiation rite or practice as a prerequisite for admission into membership in a
fraternity, sorority or organization;
2. That there must be a recruit, neophyte or applicant of the fraternity, sorority or organization;
and

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3. That the recruit, neophyte or applicant is placed in some embarrassing or humiliating situations
such as forcing him to do menial, silly, foolish and other similar tasks or activities or otherwise
subjecting him to physical or psychological suffering or injury.

Recognizing the malum prohibitum characteristic of hazing, the law provides that any person charged
with the said crime shall not be entitled to the mitigating circumstance that there was no intention to
commit so grave a wrong. Also, the framers of the law intended that the consent of the victim shall not
be a defense in hazing.

Anti-Money Laundering Act of 2001 as Amended by RA 10365

Two Conditions When Applying for Civil Forfeiture:(1) when there is a suspicious transaction
report or a covered transaction report deemed suspicious after investigation by the AMLC and (2) the
court has, in a petition filed for the purpose, ordered the seizure of any monetary instrument or
property, in whole or in part, directly or indirectly, related to said report.

It is the preliminary seizure of the property in question which brings it within the reach of the judicial
process. It is actually within the court’s possession when it is submitted to the process of the court.
The injunctive writ issued on August 8, 2003 removed account no. CA-005-10-000121-5 from the
effective control of either Glasgow or CSBI or their representatives or agents and subjected it to the
process of the court.

REPUBLIC OF THE PHILIPPINES vs. GLASGOW CREDIT AND COLLECTION SERVICES, INC.
and CITYSTATE SAVINGS BANK, INC.
Anti-Money Laundering Act of 2001 (R.A. No. 9160); Civil Forfeiture; Actions; Venue; Motions to
Dismiss; The motu proprio dismissal of a complaint by the trial court on the ground of improper venue
is plain error.—Inasmuch as Glasgow never questioned the venue of the Republic’s complaint for civil
forfeiture against it, how could the trial court have dismissed the complaint for improper venue? In
Dacoycoy v. Intermediate Appellate Court, 195 SCRA 641 (1991), this Court ruled: The motu proprio
dismissal of petitioner’s complaint by [the] trial court on the ground of improper venue is plain error… .

GSIS vs. COURT OF APPEALS and INDUSTRIAL BANK OF KOREA, TONG YANG MERCHANT
BANK, HANAREUM BANKING CORP., LAND BANK OF THE PHILIPPINES, WESTMONT BANK
and DOMSAT HOLDINGS, INC.

Secrecy of Bank Deposits: Exceptions when records of deposits may be disclosed under R.A. No.
1405 and R.A. 6246:

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R.A. 1405 R.A. 6426

Republic Act No. 1405 provides for four (4) On the other hand, the only exception to the
exceptions when records of deposits may be non-disclosure of foreign currency deposits,
disclosed. These are under any of the following under R.A. 6426, is disclosure upon the written
instances: permission of the depositor.

(a) upon written permission of the depositor,

(b) in cases of impeachment,
(c) upon order of a competent court in the case
of bribery or dereliction of duty of public officials
or, when the money deposited or invested is the
subject matter of the litigation, and
(d) in cases of violation of the Anti-Money
Laundering Act (AMLA), the Anti-Money
Laundering Council (AMLC) may inquire into a
bank account upon order of any competent
court.

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