RULE ON PRECAUTIONARY HOLD DEPARTURE ORDER If the judge finds that probable cause exists and there is a high
se exists and there is a high probability
Section 1. Precautionary Hold Departure Order. – is an order in writing
issued by a court commanding the Bureau of Immigration to prevent any
attempt by a person suspected of a crime to depart from ·the Philippines,
which shall be issued ex-parte in cases involving crimes where the
minimum of the penalty prescribed by law is at least six (6) years and one
(I) day or when the offender is a foreigner regardless of the imposable
penalty.
Section 2. Where filed. – The application for a precautionary hold
departure order may be filed by a prosecutor with any regional trial court
within whose territorial jurisdiction the alleged crime was
committed: Provided, that for compelling reasons, it can be filed with any
regional trial court within the judicial region where the crime was
committed if the place of the commission of the crime is known; Provided,
further, that the regional trial courts in the City of Manila, Quezon City,
Cebu City, Iloilo City, Davao City, and Cagayan de Oro City shall also
have the authority to act on applications filed by the prosecutor based on
complaints instituted by the National Bureau of Investigation, regardless
where the alleged crime was committed.
Section 3. Finding of probable cause. – Upon motion by the
complainant in a criminal complaint filed before the office of the city or
provincial prosecutor, and upon a preliminary determination of probable
cause based on the complaint and attachments, the investigating
prosecutor may file an application in the name of the People of the
Philippines for a precautionary hold order (PHDO) with the proper
regional trial court. The application shall be accompanied by the
complaint-affidavit and its attachments, personal details, passport
number and a photograph of the respondent, if available.
Section 4. Grounds for issuance. – A precautionary hold departure
order shall not issue except upon determination by the judge, in whose
court the application is filed, that probable cause exists, and there is a
high probability that respondent will depart from the Philippines to evade
arrest and prosecution of crime against him or her. The judge shall
personally examine under oath or affirmation, in the form of searching
questions and answers in writing, the applicant and the witnesses he or
she may produce on facts personally known to them and attaching to the
record their sworn statements.
that the respondent will depart, he or she shall issue the PHDO and direct
the Bureau of Immigration to hold and prevent the departure of the
respondent at any Philippine airport or ports. Otherwise, the judge shall
order the dismissal of the application.
Section 5. Preliminary finding of probable cause. – Since the finding
of probable cause by the judge is solely based on the complaint and is
specifically issued for the purpose of issuing the PHDO, the same shall
be without prejudice to the resolution o f the prosecutor of the criminal
complaint considering the complaint-affidavit, counter-affidavit, reply-
affidavit, and the evidence presented by both parties during the
preliminary investigation. If the prosecutor after preliminary investigation
dismisses the criminal complaint for lack of probable cause then the
respondent may use the dismissal as a ground for the lifting of the PHDO
with the regional trial court that issued the order. If the prosecutor finds
probable cause and files the criminal information, the case with the court
that issued the PHDO, on motion of the prosecutor shall be consolidated
with the court where the criminal information is filed.
Section 6. Form and validity of the precautionary hold departure
order. – The precautionary hold departure order shall indicate the name
of the respondent, his or her alleged crime, the time and place of its
commission, and the name of the complainant. (See Annex “A” herein). A
copy of the application, personal details, passport number, photograph of
the respondent, if available, shall be appended to the order. The order
shall be valid until lifted by the issuing court as may be warranted by the
result of the preliminary investigation.
The court shall furnish the Bureau of Immigration with a duly certified
copy of the hold departure order within twenty-four (24) hours from
issuance.
Section 7. Lifting of the Order. – The respondent may file a verified
motion before the issuing court for the temporary lifting of PHDO on
meritorious ground; that, based on the complaint-affidavit and the
evidence that he or she will present, there is doubt that probable cause
exists to issue the PHDO or it is shown that he or she is not a flight
risk: Provided, that the respondent posts a bond; Provided, further, that
the lifting of the PHDO is without prejudice to the resolution of the
preliminary investigation against the respondent.
Section 8. Bond. – Respondent may ask the issuing court to allow him
or her to leave the country upon posting of a bond in an amount to be
determined by the court subject to the conditions set forth in the Order
granting the temporary lifting of the PHDO.
Section 9. Effectivity. – This Rule shall take effect within fifteen (15)
days following its publication in two (2) newspapers of general circulation
in the Philippines.
G.R. No. 216920. January 13, 2016.*
GIRLIE M. QUISAY, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondents.
Criminal Procedure; Pleadings and Practice; Information;
Section 4, Rule 112 of the 2000 Revised Rules on Criminal Procedure
states that the filing of a complaint or information requires a prior
written authority or approval of the named officers therein before a
complaint or information may be filed before the courts.—Section 4,
Rule 112 of the 2000 Revised Rules on Criminal Procedure states
that the filing of a complaint or information requires a prior written
authority or approval of the named officers therein before a
complaint or information may be filed before the courts, viz.:
SECTION 4. Resolution of investigating prosecutor and its review.—
If the investigating prosecutor finds cause to hold the respondent for
trial, he shall prepare the resolution and information. He shall
certify under oath in the information that he, or as shown by the
record, an authorized officer, has personally examined the
complainant and his witnesses; that there is reasonable ground to
believe that a crime has been committed and that the accused is
probably guilty thereof; that the accused was informed of the
complaint and of the evidence submitted against him; and that he
was given an opportunity to submit controverting evidence.
Otherwise, he shall recommend the dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the record
of the case to the provincial or city prosecutor or chief state
prosecutor, or to the Ombudsman or his deputy in cases of offenses
_______________
* FIRST DIVISION.
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Quisay vs. People
cognizable by the Sandiganbayan in the exercise of its original
jurisdiction. They shall act on the resolution within ten (10) days
from their receipt thereof and shall immediately inform the parties
of such action. No complaint or information may be filed or
dismissed by an investigating prosecutor without the prior
written authority or approval of the provincial or city
prosecutor or chief state prosecutor or the Ombudsman or his
deputy. x x x x (Emphases and underscoring supplied) Thus, as a
general rule, complaints or informations filed before the courts
without the prior written authority or approval of the foregoing
authorized officers renders the same defective and, therefore,
subject to quashal pursuant to Section 3(d), Rule 117 of the same
Rules.
Same; Same; Same; People v. Garfin, 426 SCRA 393
(2004), firmly instructs that the filing of an Information by an officer
without the requisite authority to file the same constitutes a
jurisdictional infirmity which cannot be cured by silence, waiver,
acquiescence, or even by express consent.—In this relation, People v.
Garfin, 426 SCRA 393 (2004), firmly instructs that the filing of an
Information by an officer without the requisite authority to file the
same constitutes a jurisdictional infirmity which cannot be cured by
silence, waiver, acquiescence, or even by express consent. Hence,
such ground may be raised at any stage of the proceedings.
Same; Same; Same; Section 9 of Republic Act (RA) No. 10071,
gave the City Prosecutor the power to “[i]nvestigate and/or cause to
be investigated all charges of crimes, misdemeanors and violations
of penal laws and ordinances within their respective jurisdictions,
and have the necessary information or complaint prepared or made
and filed against the persons accused,” he may indeed delegate his
power to his subordinates as he may deem necessary in the interest
of the prosecution service.—The CA correctly held that based on the
wordings of Section 9 of RA 10071, which gave the City Prosecutor
the power to “[i]nvestigate and/or cause to be investigated all
charges of crimes, misdemeanors and violations of penal laws and
ordinances within their respective jurisdictions, and have the
necessary information or complaint prepared or made and
filed against the persons accused,” he may indeed delegate his
power to his subordinates as he may deem necessary in the interest
of the prosecution service. The CA also correctly stressed that it is
under the auspice of this provision that the City Prosecutor of
Makati issued OCP-Makati
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100 SUPREME COURT REPORTS ANNOTATED
Quisay vs. People
Office Order No. 32, which gave division chiefs or review
prosecutors “authority to approve or act on any resolution, order,
issuance, other action, and any information recommended by any
prosecutor for approval,” without necessarily diminishing the City
Prosecutor’s authority to act directly in appropriate cases. By virtue
of the foregoing issuances, the City Prosecutor validly designated
SACP Hirang, Deputy City Prosecutor Emmanuel D. Medina, and
Senior Assistant City Prosecutor William Celestino T. Uy as review
prosecutors for the OCP-Makati.
PETITION for review on certiorari of the decision and
resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
Public Attorney’s Office for petitioner.
The Solicitor General for respondent.
PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari1 are the
Decision2 dated October 10, 2014 and the Resolution3 dated
January 30, 2015 of the Court of Appeals (CA) in C.A.-G.R.
S.P. No. 131968, which affirmed the denial of petitioner Girlie
M. Quisay’s (petitioner) Motion to Quash before the Regional
Trial Court of Makati, Branch 144 (RTC).
The Facts
On December 28, 2012, the Office of the City Prosecutor of
Makati City (OCP-Makati) issued a Pasiya4 or Resolution
_______________
1 Rollo, pp. 23-41.
2 Id., at pp. 126-134. Penned by Associate Justice Rebecca De Guia-
Salvador, with Associate Justices Ricardo R. Rosario and Leoncia R. Dimagiba,
concurring.
3 Id., at pp. 149-150.
4 Id., at pp. 69-71. Penned by Assistant City Prosecutor Estefano H. De La
Cruz and approved by Senior Assistant City Prosecutor Edgardo G. Hirang.
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Quisay vs. People
finding probable cause against petitioner for violation of
Section 10 of Republic Act No. (RA) 7610,5 otherwise known as
the “Special Protection of Children Against Abuse,
Exploitation and Discrimination Act.” Consequently,
a Pabatid Sakdal6 or Information was filed before the RTC on
January 11, 2013 charging petitioner of such crime.
On April 12, 2013, petitioner moved for the quashal of the
Information against her on the ground of lack of authority of
the person who filed the same before the RTC. In support of
her motion, petitioner pointed out that the Pasiya issued by
the OCP-Makati was penned by Assistant City Prosecutor
Estefano H. De La Cruz (ACP De La Cruz) and approved by
Senior Assistant City Prosecutor Edgardo G. Hirang (SACP
Hirang), while the Pabatid Sakdal was penned by ACP De La
Cruz, without any approval from any higher authority, albeit
with a Certification claiming that ACP De La Cruz has prior
written authority or approval from the City Prosecutor in
filing the said Information. In this regard, petitioner claimed
that nothing in the aforesaid Pasiya and Pabatid
Sakdal would show that ACP De La Cruz and/or SACP Hirang
had prior written authority or approval from the City
Prosecutor to file or approve the filing of the Information
against her. As such, the Information must be quashed for
being tainted with a jurisdictional defect that cannot be cured.7
In its Comment and Opposition,8 the OCP-Makati
countered that the review prosecutor, SACP Hirang, was
authorized to approve the Pasiya pursuant to OCP-Makati
Office
_______________
5 Entitled “An Act Providing for Stronger Deterrence and Special
Protection Against Child Abuse, Exploitation and Discrimination, Providing
Penalties for its Violation, and for Other Purposes” (approved on June 17,
1992).
6 Rollo, pp. 72-73. Signed by Assistant City Prosecutor Estefano H. De La
Cruz.
7 See Motion to Quash dated April 12, 2013; id., at pp. 74-76.
8 Id., at p. 77.
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102 SUPREME COURT REPORTS ANNOTATED
Quisay vs. People
Order No. 32.9 Further, it maintained that the Pabatid
Sakdal was filed with the prior approval of the City Prosecutor
as shown in the Certification in the Information itself.10
The RTC’s Ruling
In an Order11 dated May 8, 2013, the RTC denied
petitioner’s motion to quash for lack of merit. It found the
Certification attached to the Pabatid Sakdal to have
sufficiently complied with Section 4, Rule 112 of the Rules of
Court which requires the prior written authority or approval
by, among others, the City Prosecutor, in the filing of
Informations.12
Petitioner moved for reconsideration,13 which was, however,
denied in an Order14 dated July 10, 2013. Aggrieved, petitioner
elevated the matter to the CA via a petition for certiorari.15
The CA’s Ruling
In a Decision16 dated October 10, 2014, the CA affirmed the
RTC ruling. It held that pursuant to Section 9 of RA
10071,17 otherwise known as the “Prosecution Service Act of
2010,” as well as OCP-Makati Office Order No. 32, the City
Prosecutor of Makati authorized SACP Hirang to approve the
issuance of, inter alia, resolutions finding probable cause and
the filing
_______________
9 Issued on July 29, 2011. Id., at p. 78.
10 Id., at p. 77.
11 Id., at p. 79. Penned by Presiding Judge Liza Marie R. Picardal-Tecson.
12 Id.
13 See motion for reconsideration dated May 20, 2013; id., at pp. 80-81.
14 Id., at p. 82.
15 Id., at pp. 47-65.
16 Id., at pp. 126-134.
17 Entitled “An Act Strengthening and Rationalizing the National
Prosecution Service” (approved on April 8, 2010).
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Quisay vs. People
of Informations before the courts. As such, SACP Hirang
may, on behalf of the City Prosecutor, approve
the Pasiya which found probable cause to indict petitioner of
violation of Section 10 of RA 7610.18
Further, it held that the Certification made by ACP De La
Cruz in the Pabatid Sakdal clearly indicated that the same
was filed after the requisite preliminary investigation and
with the prior written authority or approval of the City
Prosecutor. In this regard, the CA opined that such
Certification enjoys the presumption of regularity accorded to
a public officer’s performance of official functions, in the
absence of convincing evidence to the contrary.19
 Undaunted, petitioner moved for reconsideration,20 but was
denied in a Resolution21 dated January 30, 2015; hence, this
petition.
The Issue Before the Court
The core issue for the Court’s resolution is whether or not
the CA correctly held that the RTC did not gravely abuse its
discretion in dismissing petitioner’s motion to quash.
The Court’s Ruling
The petition is meritorious.
Section 4, Rule 112 of the 2000 Revised Rules on Criminal
Procedure states that the filing of a complaint or information
requires a prior written authority or approval of the named
officers therein before a complaint or information may be filed
before the courts, viz.:
_______________
18 Id., at pp. 128-131.
19 Id., at pp. 132-133.
20 See motion for reconsideration dated November 18, 2014; id., at pp.
135-143.
21 Id., at pp. 149-150.
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104 SUPREME COURT REPORTS ANNOTATED
Quisay vs. People
SECTION 4. Resolution of investigating prosecutor
and its review.—If the investigating prosecutor finds
cause to hold the respondent for trial, he shall prepare
the resolution and information. He shall certify under
oath in the information that he, or as shown by the
record, an authorized officer, has personally examined
the complainant and his witnesses; that there is
reasonable ground to believe that a crime has been
committed and that the accused is probably guilty
thereof; that the accused was informed of the complaint
and of the evidence submitted against him; and that he
was given an opportunity to submit controverting
evidence. Otherwise, he shall recommend the dismissal
of the complaint.
Within five (5) days from his resolution, he shall
forward the record of the case to the provincial or city
prosecutor or chief state prosecutor, or to the
Ombudsman or his deputy in cases of offenses cognizable
by the Sandiganbayan in the exercise of its original
jurisdiction. They shall act on the resolution within ten
(10) days from their receipt thereof and shall
immediately inform the parties of such action.
No complaint or information may be filed or
dismissed by an investigating prosecutor without the
prior written authority or approval of
the provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy.
x x x x (Emphases and underscoring supplied)
Thus, as a general rule, complaints or informations filed
before the courts without the prior written authority or
approval of the foregoing authorized officers renders the same
defective and, therefore, subject to quashal pursuant to
Section 3(d), Rule 117 of the same Rules, to wit:
SECTION 3. Grounds.—The accused may move to
quash the complaint or information on any of the
following grounds:
xxxx
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Quisay vs. People
 (d) That the officer who filed the information
had no authority to do so.
x x x x (Emphasis and underscoring supplied)
In this relation, People v. Garfin firmly instructs that the
22
filing of an Information by an officer without the requisite
authority to file the same constitutes a jurisdictional infirmity
which cannot be cured by silence, waiver, acquiescence, or
even by express consent. Hence, such ground may be raised at
any stage of the proceedings.23
In the case at bar, the CA affirmed the denial of petitioner’s
motion to quash on the grounds that: (a) the City Prosecutor
of Makati may delegate its authority to approve the filing of
the Pabatid Sakdal pursuant to Section 9 of RA 10071, as well
as OCP-Makati Office Order No. 32; and (b) the Pabatid
Sakdal contained a Certification stating that its filing before
the RTC was with the prior written authority or approval from
the City Prosecutor.
The CA correctly held that based on the wordings of Section
9 of RA 10071, which gave the City Prosecutor the power to
“[i]nvestigate and/or cause to be investigated all charges of
crimes, misdemeanors and violations of penal laws and
ordinances within their respective jurisdictions, and have
the necessary information or complaint prepared or
made and filed against the persons accused,”24 he may in-
_______________
22 G.R. No. 153176, March 29, 2004, 426 SCRA 393.
23 Id., at p. 407, citing Villa v. Ibañez, 88 Phil. 402 (1951).
24 Section 9 of RA 10071 states in full:
Section 9. Powers and Functions of the Provincial Prosecutor or City
Prosecutor.—The provincial prosecutor shall:
(a) Be the law officer of the province or city, as the case may be;
(b) Investigate and/or cause to be investigated all charges of crimes,
misdemeanors and violations of penal laws and ordinances within their
respective jurisdictions, and have the necessary information or complaint
prepared or made and filed
106
106 SUPREME COURT REPORTS ANNOTATED
Quisay vs. People
deed delegate his power to his subordinates as he may deem
necessary in the interest of the prosecution service. The CA
also correctly stressed that it is under the auspice of this
provision that the City Prosecutor of Makati issued OCP-
Makati Office Order No. 32, which gave division chiefs or
review prosecutors “authority to approve or act on any
resolution, order, issuance, other action, and any information
recommended by any prosecutor for approval,”25 without
necessarily diminishing the City Prosecutor’s authority to act
directly in appropriate cases.26 By virtue of the foregoing issu-
_______________
against the persons accused. In the conduct of such investigations he or any
of his/her assistants shall receive the statements under oath or take oral
evidence of witnesses, and for this purpose may by subpoena summon
witnesses to appear and testify under oath before him/her, and the attendance
or evidence of an absent or recalcitrant witness may be enforced by application
to any trial court;
(c) Have charge of the prosecution of all crimes, misdemeanors and
violations of city or municipal ordinances in the courts at the province or city
and therein discharge all the duties incident to the institution of criminal
actions, subject to the provisions of second paragraph of Section 5 hereof.
25 See Section 2 of OCP-Makati Office Order No. 32 (Rollo, p. 78), which
provides:
SEC. 2. Approval of Resolution, issuance, action, and motion and filing
of information.—Subject to Section 4 hereof, a division chief or review
prosecutor shall have authority to approve or act on any resolution, order,
issuance, other action, and any information recommended by any prosecutor
for approval and assigned to him or her for review, unless in the assignment it
is indicated that the same is subject to the approval of the City Prosecutor.
26 See Section 4 of OCP-Makati Office Order No. 32 (id.), which reads:
SEC. 4. Authority of City Prosecutor to act directly.—Nothing in this
Order shall diminish the authority of the City Prosecutor to act directly on any
resolution or order disposing of complaints or cases, and motions pending in
the Office of the City
107
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 Quisay vs. People
ances, the City Prosecutor validly designated SACP Hirang,
Deputy City Prosecutor Emmanuel D. Medina, and Senior
Assistant City Prosecutor William Celestino T. Uy as review
prosecutors for the OCP-Makati.27
In this light, the Pasiya or Resolution finding probable
cause to indict petitioner of the crime charged, was validly
made as it bore the approval of one of the designated review
prosecutors for OCP-Makati, SACP Hirang, as evidenced by
his signature therein.
Unfortunately, the same could not be said of the Pabatid
Sakdal or Information filed before the RTC, as there was no
showing that it was approved by either the City Prosecutor of
Makati or any of the OCP-Makati’s division chiefs or review
prosecutors. All it contained was a Certification from ACP De
La Cruz which stated, among others, that “DAGDAG KO
PANG PINATUTUNAYAN na ang paghahain ng sakdal na ito
ay may nakasulat na naunang pahintulot o pagpapatibay ng
Panlunsod na Taga-Usig”28 — which translates to “and that
the filing of the Information is with the prior authority and
approval of the City Prosecutor.”
In the cases of People v. Garfin,29 Turingan v.
Garfin,30 and Tolentino v. Paqueo, Jr.,31 the Court had already
rejected similarly-worded certifications, uniformly holding
that despite such certifications, the Informations were
defective as it was shown that the officers filing the same in
court either lacked the authority to do so or failed to show that
they obtained prior written authority from any of those
authorized
_______________
Prosecutor for Makati and on any pleading, motion or any other action to
be filed by the Office in courts or other office.
27 See OCP-Makati Administrative Order Nos. 10-038, 11-030, and 12-
007; id., at pp. 95-97.
28 Id., at p. 73.
29 People v. Garfin, supra note 22.
30 549 Phil. 903; 521 SCRA 389 (2007).
31 551 Phil. 355; 523 SCRA 377 (2007).
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108 SUPREME COURT REPORTS ANNOTATED
Quisay vs. People
officers enumerated in Section 4, Rule 112 of the 2000
Revised Rules of Criminal Procedure.
Here, aside from the bare and self-serving Certification,
there was no proof that ACP De La Cruz was authorized to file
the Pabatid Sakdal or Information before the RTC by himself.
Records are bereft of any showing that the City Prosecutor of
Makati had authorized ACP De La Cruz to do so by giving him
prior written authority or by designating him as a division
chief or review prosecutor of OCP-Makati. There is likewise
nothing that would indicate that ACP De La Cruz sought the
approval of either the City Prosecutor or any of those
authorized pursuant to OCP-Makati Office Order No. 32 in
filing the Pabatid Sakdal. Quite frankly, it is simply baffling
how ACP De La Cruz was able to have the Pasiya approved by
designated review prosecutor SACP Hirang but failed to have
the Pabatid Sakdal approved by the same person or any other
authorized officer in the OCP-Makati.
In view of the foregoing circumstances, the CA erred in
according the Pabatid Sakdal the presumption of regularity in
the performance of official functions solely on the basis of the
Certification made by ACP De La Cruz considering the
absence of any evidence on record clearly showing that ACP
De La Cruz: (a) had any authority to file the same on his own;
or (b) did seek the prior written approval from those
authorized to do so before filing the Information before the
RTC.
In conclusion, the CA erred in affirming the RTC’s
dismissal of petitioner’s motion to quash as the Pabatid
Sakdal or Information suffers from an incurable infirmity —
that the officer who filed the same before the RTC had no
authority to do so. Hence, the Pabatid Sakdal must be
quashed, resulting in the dismissal of the criminal case Sereno (CJ., Chairperson), Leonardo-De Castro,
against petitioner. Bersamin and Perez, JJ., concur.
As a final note, it must be stressed that “[t]he Rules of Court
Petition granted, judgment and resolution reversed and set
governs the pleading, practice, and procedure in all courts of
aside.
the Philippines. For the orderly administration of justice, the
provisions contained therein should be followed by Notes.—Since the date of commission of the offense is not
required with exactitude, the allegation in an information of a
date of commission different from the one eventually
109 established during the trial would not, as a rule, be considered
VOL. 781, JANUARY 13, 2016 109 as an error fatal to prosecution. (People vs. Delfin, 729
Quisay vs. People SCRA 617 [2014])
all litigants, but especially by the prosecution arm of the Under Section 6, Rule 110 of the Rules of Court, the
Government.”32 information is sufficient if it states the name of the accused;
WHEREFORE, the petition is GRANTED. The Decision the designation of the offense given by the statute; the acts or
dated October 10, 2014 and the Resolution dated January 30, omissions complained of as constituting the offense; the name
2015 of the Court of Appeals in C.A.-G.R. S.P. No. 131968 are of the offended party; the proximate date of the commission of
hereby REVERSED and SET ASIDE. Accordingly, the the offense; and the place where the offense was committed.
Information against petitioner Girlie M. Quisay (Rosaldes vs. People, 737 SCRA 592 [2014])
is QUASHED and the criminal case against her
is DISMISSED.
SO ORDERED. ——o0o——
G.R. No. 183345. September 17, 2014.* of Rule 112, grants the trial court three options upon the filing of
the criminal complaint or information. He may: a) dismiss the case
MA. GRACIA HAO and DANNY HAO, if the evidence on record clearly failed to establish probable cause;
petitioners, vs. PEOPLE OF THE PHILIPPINES, respondent. b) issue a warrant of arrest if it finds probable cause; or c) order the
prosecutor to present additional evidence within five days from
Constitutional Law; Criminal Procedure; Under the notice in case of doubt on the existence of probable cause. In the
Constitution and the Revised Rules of Criminal Procedure, a judge present case, the trial court chose to issue warrants of arrest to the
is mandated to personally determine the existence of probable cause petitioners and their co-accused. To be valid, these warrants must
after his personal evaluation of the prosecutor’s resolution and the have been issued after compliance with the requirement that
supporting evidence for the crime charged.—Under the Constitution probable cause be personally determined by the judge. Notably at
and the Revised Rules of Criminal Procedure, a judge is mandated this stage, the judge is tasked to merely determine the
to personally determine the existence of probable cause after probability, not the certainty, of guilt of the accused. In doing
his personal evaluation of the prosecutor’s resolution and the so, he need not conduct a de novo hearing; he only needs to
supporting evidence for the crime charged. These provisions personally review the prosecutor’s initial determination and see if it
command the judge to refrain from making a mindless acquiescence is supported by substantial evidence.
to the prosecutor’s findings and to conduct his own examination of Same; Same; In a criminal prosecution, probable cause is
the facts and circumstances presented by both parties. Section 5(a) determined at two (2) stages. The first is at the executive level, where
determination is made by the prosecutor during the preliminary circumstances all serve as indicators of the petitioners’ deceit.
investigation, before the filing of the criminal information. The “Deceit is the false representation of a matter of fact, whether by
second is at the judicial level, undertaken by the judge before the issu- words or conduct, by false or misleading allegations, or by
_______________ concealment of that which should have been disclosed, which
deceives or is intended to deceive another, so that he shall act upon
* SECOND DIVISION. it to his legal injury.” Thus, had it not been for the petitioners’ false
313
representations and promises, Dy would not have placed his money
in State Resources, to his damage. These allegations cannot but lead
VOL. 735, SEPTEMBER 17, 2014 313 us to the conclusion that
Hao vs. People 314

ance of a warrant of arrest.—In a criminal prosecution, 314 SUPREME COURT REPORTS ANNOTATED
probable cause is determined at two stages. The first is at the Hao vs. People
executive level, where determination is made by the prosecutor
probable cause existed as basis to arrest the petitioners for the
during the preliminary investigation, before the filing of the
crime of estafa by means of deceit.
criminal information. The second is at the judicial level, undertaken
Same; Same; Syndicated Estafa; Elements of.—Under Section
by the judge before the issuance of a warrant of arrest.
1 of PD No. 1689, there is syndicated estafa if the following elements
Criminal Law; Estafa; Estafa by Means of Deceit; Estafa Under
are present: 1) estafa or other forms of swindling as defined in
Article 315(2)(a); Elements of.—The crime of swindling or estafa is
Articles 315 and 316 of the RPC was committed; 2) the estafa or
covered by Articles 315-316 of the RPC. In these provisions, the
swindling was committed by a syndicate of five or more persons; and
different modes by which estafa may be committed, as well as the
3) the fraud resulted in the misappropriation of moneys contributed
corresponding penalties for each are outlined. One of these modes
by stockholders, or members of rural banks, cooperatives,
is estafa by means of deceit. Article 315(2)(a) of the RPC defines how
“samahang nayon[s],” or farmers associations or of funds solicited
this particular crime is perpetrated: 2. By means of any of the
by corporations/associations from the general public. The
following false pretenses or fraudulent acts executed prior to or
factual circumstances of the present case show that the first and
simultaneously with the commission of the fraud: (a) By using
second elements of syndicated estafa are present; there is probable
fictitious name, or falsely pretending to possess power, influence,
cause for violation of Article 315(2)(a) of the RPC against the
qualifications, property, credit, agency, business or imaginary
petitioners. Moreover, in Dy’s supplemental complaint-affidavit, he
transactions, or by means of other similar deceits. Under this
alleged that the fraud perpetrated against him was committed, not
provision, estafa has the following elements: 1) the existence of a
only by Ngo and the petitioners, but also by the other officers and
false pretense, fraudulent act or fraudulent means; 2) the execution
directors of State Resources. The number of the accused who
of the false pretense, fraudulent act or fraudulent means prior to or
allegedly participated in defrauding Dy exceeded five, thus
simultaneously with the commission of the fraud; 3) the reliance by
satisfying the requirement for the existence of a syndicate. However,
the offended party on the false pretense, fraudulent act or
the third element of the crime is patently lacking. The funds
fraudulent means, which induced him to part with his money or
fraudulently solicited by the corporation must come from the
property; and 4) as a result, the offended party suffered damage.
general public. In the present case, no evidence was presented to
Same; Same; Same; Deceit; Words and Phrases; Deceit is the
show that aside from Dy, the petitioners, through State Resources,
false representation of a matter of fact, whether by words or conduct,
also sought investments from other people. Dy had no co-
by false or misleading allegations, or by concealment of that which
complainants alleging that they were also deceived to entrust their
should have been disclosed, which deceives or is intended to deceive
money to State Resources. The general public element was not
another, so that he shall act upon it to his legal injury.—These
complied with. Thus, no syndicated estafa allegedly took place, only
simple estafa by means of deceit.
Constitutional Law; Remedial Law; Criminal Procedure;
Warrant of Arrest; Probable Cause; A warrant of arrest should be
issued if the judge after personal evaluation of the facts and
circumstances is convinced that probable cause exists that an offense
was committed.—A warrant of arrest should be issued if the judge
after personal evaluation of the facts and circumstances is convinced
that probable cause exists that an offense was committed. Probable
cause for the issuance of a warrant of arrest is the existence of such
facts and circumstances that would lead a reasonably discreet and
prudent person to believe that an offense was committed by the
person sought to be arrested. This must be distinguished from the
prosecu-
315
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Hao vs. People
tor’s finding of probable cause which is for the filing of the
proper criminal information. Probable cause for warrant of arrest is
determined to address the necessity of placing the accused
under custody in order not to frustrate the ends of justice.
Criminal Law; Estafa; Simple Estafa; Syndicated Estafa;
Simple estafa and syndicated estafa are not two entirely different
crimes. Simple estafa is a crime necessarily included in syndicated
estafa.—We note that simple estafa and syndicated estafa are not
two entirely different crimes. Simple estafa is a crime necessarily
included in syndicated estafa. An offense is necessarily included in
another offense when the essential ingredients of the former
constitute or form a part of those constituting the latter. Under this
legal situation, only a formal amendment of the filed information
under Section 14, Rule 110 of the Rules of Court is necessary; the
warrants of arrest issued against the petitioners should not be
nullified since probable cause exists for simple estafa.
Remedial Law; Criminal Procedure; Arraignment; Under
Section 11(c), Rule 116 of the Rules of Court, an arraignment may be
suspended if there is a petition for review of the resolution of the
prosecutor pending at either the Department of Justice (DOJ), or the
Office of the President (OP). However, such period of suspension
should not exceed sixty (60) days counted from the filing of the
petition with the reviewing office.—Under Section 11(c), Rule 116 of
the Rules of Court, an arraignment may be suspended if there is a
petition for review of the resolution of the prosecutor pending at
either the DOJ, or the Office of the President. However, such period
of suspension should not exceed sixty (60) days counted from
the filing of the petition with the reviewing office. As the
petitioners alleged, they filed a petition for review with the DOJ on
November 21, 2003. Since this petition had not been resolved yet,
they claimed that their arraignment should be suspended
indefinitely. We emphasize that the right of an accused to have his
arraignment suspended is not an unqualified right. In Spouses
Trinidad v. Ang, 641 SCRA 214 (2011), we explained that while the
pendency of a petition for review is a ground for suspension of the
arraignment, the Rules limit the deferment of the arraignment to a
period of 60 days reckoned from the filing of the petition with the
reviewing office. It follows, therefore, that after the expiration of
the 60-day pe-
316
316 SUPREME COURT REPORTS ANNOTATED
Hao vs. People
riod, the trial court is bound to arraign the accused or
to deny the motion to defer arraignment.
PETITION for review on certiorari of the decision and
resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
The Law Office of Edgar Allan Calinagan Estrebillo for
petitioners Ma. Gracia Hao and Danny Hao.
Office of the Solicitor General for respondent.
BRION, J.:
Before this Court is the petition for review
on certiorari1 under Rule 45 of the Rules of Court, filed by Ma.
Gracia Hao and Danny Hao (petitioners). They seek the
reversal of the Court of Appeals’ (CA) decision2 dated February
28, 2006 and resolution3 dated June 13, 2008 in C.A.-G.R. S.P.
No. 86289. These CA rulings affirmed the February 26,
20044 and July 26, 20045 orders of the Regional Trial Court
(RTC) of Manila, which respectively denied the petitioners’
motion to defer arraignment and motion to lift warrant of
arrest.6
Factual Antecedents
On July 11, 2003 private complainant Manuel Dy y Awiten
(Dy) filed a criminal complaint against the petitioners and
Victor Ngo (Ngo) for syndicated estafa penalized under Article
_______________
1 Rollo, pp. 3-41.
2 Penned by Associate Justice Amelita G. Tolentino, and concurred in by
Associate Justices Portia Aliño-Hormachuelos and Vicente S.E. Veloso; id., at
pp. 45-59.
3 Id., at pp. 61-63.
4 Id., at pp. 172-176.
5 Id., at pp. 186-187.
6 Id., at pp. 160-171.
317
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Hao vs. People
315(2)(a) of the Revised Penal Code (RPC), as amended, in
relation with Presidential Decree (PD) No. 1689.7
Dy alleged that he was a long-time client of Asiatrust Bank,
Binondo Branch where Ngo was the manager. Because of their
good business relationship, Dy took Ngo’s advice to deposit his
money in an investment house that will give a higher rate of
return. Ngo then introduced him to Ma. Gracia Hao (Gracia),
also known as Mina Tan Hao, who presented herself as an
officer of various reputable companies and an incorporator of
State Resources Development Corporation (State Resources),
the recommended company that can give Dy his higher
investment return.8
Relying on Ngo and Gracia’s assurances, Dy initially
invested in State Resources the approximate amount of Ten
Million Pesos (P10,000,000.00). This initial investment earned
the promised interests, leading Dy, at the urging of Gracia, to
increase his investment to almost One Hundred Million Pesos
(P100,000,000.00). Dy increased his investments through
several checks he issued in the name of State Resources.9 In
return, Gracia also issued several checks to Dy representing
his earnings for his investment. Gracia issued checks in the
total amount of One Hundred Fourteen Million, Two Hundred
Eighty-Six Thousand, Eighty-Six Pesos and Fourteen
Centavos (P114,286,086.14). All these checks10 were
subsequently dishonored when Dy deposited them.
Dy sought the assistance of Ngo for the recovery of the
amount of the dishonored checks. Ngo promised assistance,
but after a few months, Dy found out that Ngo already
resigned from Asiatrust Bank and could no longer be located.
Hence, he confronted Gracia regarding the dishonored checks.
_______________
7 Increasing the Penalty for Certain Forms of Swindling or Estafa.
8 Rollo, p. 64.
9 Id., at pp. 68-70.
10 Id., at pp. 71-84.
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318 SUPREME COURT REPORTS ANNOTATED
Hao vs. People
He eventually learned that Gracia invested his money in the
construction and realty business of Gracia’s husband, Danny
Hao (Danny). Despite their promises to pay, the petitioners
never returned Dy’s money.
On July 17, 2003, Dy filed a supplemental affidavit to
include in the criminal complaint Chester De Joya, Allan
Roxas, Samantha Roxas, Geraldine Chiong, and Lyn Ansuas
— all incorporators and/or directors of State Resources.11
On the basis of Dy’s complaint12 and supplemental
affidavit,13 the public prosecutor filed an information14 for
syndicated estafa against the petitioners and their six co-
accused. The case was docketed as Criminal Case No. 03-
219952 and was raffled to respondent RTC of Manila, Branch
40.
Judge Placido Marquez issued warrants of arrest against
the petitioners and the other accused. Consequently,
petitioners immediately filed a motion to defer arraignment
and motion to lift warrant of arrest. In their twin motions, they
invoked the absence of probable cause against them and the
pendency of their petition for review with the Department of
Justice (DOJ).15
In its February 26, 2004 order, the trial court denied the
petitioners’ twin motions.16 The petitioners moved for
reconsideration but the trial court also denied this in its July
26, 2004 order.
Consequently, the petitioners filed a petition
for certiorari under Rule 65 of the Rules of Court with the CA.
_______________
swindling must have been committed by five or more persons,
and the fraud must be against the general public or at least a
group of persons. In his complaint-affidavit, Dy merely stated
that he relied on the petitioners’ false representations and was
defrauded into parting with his money, causing him
damage.19 Since there was no evidence that State Resources
was formed to defraud the public in general or that it was used
to solicit money from other persons aside from Dy, then the
offense charged should only be for simple estafa.20
Nevertheless, the CA found that the trial court did not
commit grave abuse of discretion in issuing the warrants of
arrest against the petitioners as there was still probable
_______________

11 Id., at p. 87. 17 Id.

12 Id., at pp. 64-66. 18 Id., at p. 51.
13 Id., at pp. 87-90. 19 Id., at pp. 55-56.
14 Id., at pp. 157-159. 20 Id., at p. 58.
15 Id., at p. 47.
16 Id., at p. 48. 320
320 SUPREME COURT REPORTS ANNOTATED
319
Hao vs. People
VOL. 735, SEPTEMBER 17, 2014 319
cause to believe that the petitioners committed the crime of
Hao vs. People
simple estafa.21
The CA’s Ruling The Petition
The CA affirmed the denial of the petitioners’ motion to The petitioners submit that an examination of Dy’s
defer arraignment and motion to lift warrant of arrest. affidavits shows inconsistencies in his cited factual
In determining probable cause for the issuance of a warrant circumstances. These inconsistencies, according to the
of arrest, a judge is mandated to personally evaluate the petitioners, negate the existence of probable cause against
resolution of the prosecutor and its supporting evidence.17 The them for the crime charged.
CA noted that Judge Marquez only issued the warrants of The petitioners also contend that it was only Ngo who
arrest after his personal examination of the facts and enticed Dy to invest his money. As early as August 1995, State
circumstances of the case. Since the judge complied with the Resources had already been dissolved, thus negating the
Rules, the CA concluded that no grave abuse of discretion assertion that Dy advanced funds for this corporation.22 They
could be attributed to him.18 question the fact that it took Dy almost five years to file his
In its decision, however, the CA opined that the evidence on complaint despite his allegation that he lost almost
record and the assertions in Dy’s affidavits only show probable P100,000,000.00.23
cause for the crime of simple estafa, not syndicated estafa. Lastly, the petitioners claim that the warrants of arrest
Under PD No. 1689, in order for syndicated estafa to exist, the issued against them were null and void. Contrary to the trial
court’s findings, the CA noted in the body of its decision, that
PD No. 1689 was inapplicable to their case. There was no
evidence to show that State Resources was formed to solicit
funds not only from Dy but also from the general public. Since
simple estafa and syndicated estafa are two distinct offenses,
then the warrants of arrest issued to petitioners were
erroneous because these warrants pertained to two different
crimes.24
The Court’s Ruling
We resolve to DENY the petition.
_______________
21 Id., at p. 50.
22 Id., at pp. 29-30.
23 Id., at p. 36.
24 Id., at pp. 37-40.
321
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Hao vs. People
Procedural Consideration
We note that the present petition questions the CA’s
decision and resolution on the petition for certiorari the
petitioners filed with that court. At the CA, the petitioners
imputed grave abuse of discretion against the trial court for
the denial of their twin motions to defer arraignment and to
lift warrant of arrest.
This situation is similar to the procedural issue we
addressed in the case of Montoya v. Transmed Manila
Corporation25 where we faced the question of how to review a
Rule 45 petition before us, a CA decision made under Rule 65.
We clarified in this cited case the kind of review that this
Court should undertake given the distinctions between the
two remedies. In Rule 45, we consider the correctness of the
decision made by an inferior court. In contrast, a Rule 65
review focuses on jurisdictional errors.
As in Montoya, we need to scrutinize the CA decision in the
same context that the petition for certiorari it ruled upon was
presented to it. Thus, we need to examine the CA decision from
the prism of whether it correctly determined the
presence or absence of grave abuse of discretion on the
part of the trial court and not on the basis of whether
the trial court’s denial of petitioners’ motions was
strictly legally correct. In question form, the question to ask
is: did the CA correctly determine whether the trial court
committed grave abuse of discretion in denying petitioners’
motions to defer arraignment and lift warrant of arrest?
_______________
25 G.R. No. 183329, August 27, 2009, 597 SCRA 334.
322
322 SUPREME COURT REPORTS ANNOTATED
Hao vs. People
Probable Cause for the Issuance
of a Warrant of Arrest
Under the Constitution26 and the Revised Rules of
Criminal Procedure,27 a judge is mandated to personally
determine the existence of probable cause after his personal
evaluation of the prosecutor’s resolution and the supporting
evidence for the crime charged. These provisions command the
judge to refrain from making a mindless acquiescence to the
prosecutor’s findings and to conduct his own examination of
the facts and circumstances presented by both parties.
Section 5(a) of Rule 112, grants the trial court three options
upon the filing of the criminal complaint or information. He
may: a) dismiss the case if the evidence on record clearly failed
to establish probable cause; b) issue a warrant of arrest if it
finds probable cause; or c) order the prosecutor to present
_______________
26 Article III, Section 2. The right of the people to be secure in their
persons, houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to
be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be
seized.
27 Rule 112, Section 5. When warrant of arrest may issue.—(a) By the
Regional Trial Court.—Within ten (10) days from the filing of the complaint or
information, the judge shall personally evaluate the resolution of the
prosecutor and its supporting evidence. He may immediately dismiss the case
if the evidence on record clearly fails to establish probable cause. If he finds
probable cause, he shall issue a warrant of arrest, or a commitment order if the
accused has already been arrested pursuant to a warrant issued by the judge
who conducted the preliminary investigation or when the complaint or
information was filed pursuant to Section 6 of this Rule. In case of doubt on the
existence of probable cause, the judge may order the prosecutor to present
additional evidence within five (5) days from notice and the issue must be
resolved by the court within thirty (30) days from the filing of the complaint or
information.
323
VOL. 735, SEPTEMBER 17, 2014 323
Hao vs. People
additional evidence within five days from notice in case of
doubt on the existence of probable cause.28
In the present case, the trial court chose to issue warrants
of arrest to the petitioners and their co-accused. To be valid,
these warrants must have been issued after compliance with
the requirement that probable cause be personally determined
by the judge. Notably at this stage, the judge is tasked to
merely determine the probability, not the certainty, of
guilt of the accused. In doing so, he need not conduct a de
novo hearing; he only needs to personally review the
prosecutor’s initial determination and see if it is supported by
substantial evidence.29
The records showed that Judge Marquez made a personal
determination of the existence of probable cause to support the
issuance of the warrants. The petitioners, in fact, did not
present any evidence to controvert this. As the trial court ruled
in its February 26, 2004 order:
The non-arrest of all the accused or their refusal to surrender
practically resulted in the suspension of arraignment exceeding the
sixty (60) days counted from the filing of co-accused De Joya’s
motions, which may be considered a petition for review, and that of
co-accused Spouses Hao’s own petition for review. This is not to
mention the delay in the resolution by the Department of
Justice. On the other hand, co-accused De Joya’s motion to
determine probable cause and co-accused Spouses Hao’s
motion to lift warrant of arrest have been rendered moot and
academic with the issuance of warrants of arrest by this
presiding judge after his personal examination of the facts
and circumstances strong enough in themselves to
_______________
28 People v. Hon. Dela Torre-Yadao, G.R. Nos. 162144-54, November 13, 2012,
685 SCRA 264, 287.
29 People v. Court of Appeals, G.R. No. 126005, January 21, 1999, 301 SCRA
475, 486.
324
324 SUPREME COURT REPORTS ANNOTATED
Hao vs. People
support the belief that they are guilty of the crime that in
fact happened.30 [Emphasis ours]
Under this situation, we conclude that Judge Marquez did
not arbitrarily issue the warrants of arrest against the
petitioners. As stated by him, the warrants were only issued
after his personal evaluation of the factual circumstances that
led him to believe that there was probable cause to apprehend
the petitioners for their commission of a criminal offense.
Distinction between Executive and
Judicial Determination of Probable
Cause
In a criminal prosecution, probable cause is determined at
two stages. The first is at the executive level, where
determination is made by the prosecutor during the
preliminary investigation, before the filing of the criminal
information. The second is at the judicial level, undertaken by
the judge before the issuance of a warrant of arrest.
In the case at hand, the question before us relates to the
judicial determination of probable cause. In order to properly
resolve if the CA erred in affirming the trial court’s issuance
of the warrants of arrest against the petitioners, it is necessary
to scrutinize the crime of estafa, whether committed as a
simple offense or through a syndicate.
The crime of swindling or estafa is covered by Articles 315-
316 of the RPC. In these provisions, the different modes by
which estafa may be committed, as well as the corresponding
penalties for each are outlined. One of these modes is estafa by
means of deceit. Article 315(2)(a) of the RPC defines how this
particular crime is perpetrated:
_______________
30 Rollo, p. 175.
325
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Hao vs. People
2. By means of any of the following false pretenses or fraudulent
acts executed prior to or simultaneously with the commission of the
fraud:
(a) By using fictitious name, or falsely pretending to possess
power, influence, qualifications, property, credit, agency, business
or imaginary transactions, or by means of other similar deceits.
Under this provision, estafa has the following elements: 1)
the existence of a false pretense, fraudulent act or fraudulent
means; 2) the execution of the false pretense, fraudulent act or
fraudulent means prior to or simultaneously with the
commission of the fraud; 3) the reliance by the offended party
on the false pretense, fraudulent act or fraudulent means,
which induced him to part with his money or property; and 4)
as a result, the offended party suffered damage.31
As Dy alleged in his complaint-affidavit, Ngo and Gracia
induced him to invest with State Resources and promised him
a higher rate of return.32 Because of his good business
relationship with Ngo and relying on Gracia’s attractive
financial representations, Dy initially invested the
approximate amount of P10,000,000.00.
This first investment earned profits. Thus, Dy was enticed
by Gracia to invest more so that he eventually advanced
almost P100,000,000.0033 with State Resources. Gracia’s
succeeding checks representing the earnings of his
investments, however, were all dishonored upon deposit.34 He
subsequently learned that the petitioners used his money for
Danny’s construction and realty business.35 Despite repeated
demands
_______________
31 RCL Feeders Pte., Ltd. v. Hon. Perez, 487 Phil. 211, 220-221; 445 SCRA
696, 703 (2004).
32 Rollo, p. 64.
33 Id.
34 Id.
35 Id., at p. 65.
326
326 SUPREME COURT REPORTS ANNOTATED
Hao vs. People
and the petitioners’ constant assurances to pay, they never
returned Dy’s invested money and its supposed earnings.36
These cited factual circumstances show the elements
of estafa by means of deceit. The petitioners induced Dy to
invest in State Resources promising higher returns. But
unknown to Dy, what occurred was merely a ruse to secure his
money to be used in Danny’s construction and realty business.
The petitioners’ deceit became more blatant when they ad-
mitted in their petition that as early as August 1995, State
Resources had already been dissolved.37 This admission
strengthens the conclusion that the petitioners
misrepresented facts regarding themselves and State
Resources in order to persuade Dy to part with his money for
investment with an inexistent corporation.
These circumstances all serve as indicators of the
petitioners’ deceit. “Deceit is the false representation of a
matter of fact, whether by words or conduct, by false or
misleading allegations, or by concealment of that which should
have been disclosed, which deceives or is intended to deceive
another, so that he shall act upon it to his legal injury.”38
Thus, had it not been for the petitioners’ false
representations and promises, Dy would not have placed his
money in State Resources, to his damage. These allegations
cannot but lead us to the conclusion that probable cause
existed as basis to arrest the petitioners for the crime
of estafa by means of deceit.
We now address the issue of whether estafa in this case was
committed through a syndicate.
_______________
36 Id.
37 Id., at p. 30.
38 Galvez v. Court of Appeals, G.R. Nos. 187919, 187979, 188030, April 25,
2012, 671 SCRA 222, 232.
327
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Hao vs. People
Under Section 1 of PD No. 1689,39 there is
syndicated estafa if the following elements are present:
1) estafa or other forms
of swindling as defined in Articles 315 and 316 of the RPC was
committed; 2) the estafa or swindling was committed by a
syndicate of five or more persons; and 3) the fraud resulted in
the misappropriation of moneys contributed by stockholders,
or members of rural banks, cooperatives, “samahang
nayon[s],” or farmers associations or of funds solicited by
corporations/associations from the general public.40
The factual circumstances of the present case show that the
first and second elements of syndicated estafa are present;
there is probable cause for violation of Article 315(2)(a) of the
RPC against the petitioners. Moreover, in Dy’s supplemental
complaint-affidavit, he alleged that the fraud perpetrated
against him was committed, not only by Ngo and the
petitioners, but also by the other officers and directors of State
Resources. The number of the accused who allegedly
participated in defrauding Dy exceeded five, thus satisfying
the requirement for the existence of a syndicate.
However, the third element of the crime is patently lacking.
The funds fraudulently solicited by the corporation must come
from the general public. In the present case, no evidence was
presented to show that aside from Dy, the petitioners, through
State Resources, also sought investments from other
_______________
39 Section 1. Any person or persons who shall commit estafa or other
forms of swindling as defined in Articles 315 and 316 of the Revised Penal
Code, as amended, shall be punished by life imprisonment to death if the
swindling (estafa) is committed by a syndicate consisting of five or more
persons formed with the intention of carrying out the unlawful or illegal act,
transaction, enterprise or scheme, and the defraudation results in the
misappropriation of money contributed by stockholders, or members of rural
banks, cooperative, “samahang nayon(s),” or farmers association, or of funds
solicited by corporations/associations from the general public.
40 People v. Balasa, 356 Phil. 362, 395-396; 295 SCRA 49, 84 (1998).
328
328 SUPREME COURT REPORTS ANNOTATED
Hao vs. People
people. Dy had no co-complainants alleging that they were also
deceived to entrust their money to State Resources. The
general public element was not complied with. Thus, no
syndicated estafa allegedly took place, only simple estafa by
means of deceit.
Despite this conclusion, we still hold that the CA did not err
in affirming the trial court’s denial of the petitioners’ motion
to lift warrant of arrest.
A warrant of arrest should be issued if the judge after
personal evaluation of the facts and circumstances is
convinced that probable cause exists that an offense was
committed.
Probable cause for the issuance of a warrant of arrest is the
existence of such facts and circumstances that would lead a
reasonably discreet and prudent person to believe that an
offense was committed by the person sought to be
arrested.41 This must be distinguished from the prosecutor’s
finding of probable cause which is for the filing of the proper
criminal information. Probable cause for warrant of arrest is
determined to address the necessity of placing the accused
under custody in order not to frustrate the ends of
justice.42
 In People v. Castillo and Mejia,43 we explained the
distinction between the two kinds of probable cause
determination:
There are two kinds of determination of probable cause:
executive and judicial. The executive determination of probable
cause is one made during preliminary investigation. It is a
function that properly pertains to the public prosecutor who
is given a broad discretion to determine whether probable
cause exists and to charge those whom he believes to have
committed the crime as defined by law and thus should be
_______________
41 Allado v. Diokno, G.R. No. 113630, May 5, 1994, 232 SCRA 192, 199-200.
42 Mendoza v. People, G.R. No. 197293, April 21, 2014, 722 SCRA 647.
43 G.R. No. 171188, June 19, 2009, 590 SCRA 95.
329
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Hao vs. People
held for trial. Otherwise stated, such official has the quasi-judicial
authority to determine whether or not a criminal case must be filed
in court. Whether or not that function has been correctly discharged
by the public prosecutor, i.e., whether or not he has made a correct
ascertainment of the existence of probable cause in a case, is a
matter that the trial court itself does not and may not be compelled
to pass upon.
The judicial determination of probable cause, on the
other hand, is one made by the judge to ascertain whether a
warrant of arrest should be issued against the accused. The
judge must satisfy himself that based on the evidence submitted,
there is necessity for placing the accused under custody in order not
to frustrate the ends of justice. If the judge finds no probable cause,
the judge cannot be forced to issue the arrest warrant.44 [Emphasis
ours]
With our conclusion that probable cause existed for the
crime of simple estafa and that the petitioners have probably
committed it, it follows that the issuance of the warrants of
arrest against the petitioners remains to be valid and proper.
To allow them to go scot-free would defeat rather than promote
the purpose of a warrant of arrest, which is to put the accused
in the court’s custody to avoid his flight from the clutches of
justice.
Moreover, we note that simple estafa and
syndicated estafa are not two entirely different crimes.
Simple estafa is a crime necessarily included in
syndicated estafa. An offense is necessarily included in
another offense when the essential ingredients of the former
constitute or form a part of those constituting the latter.45
_______________
44 Id., at pp. 105-106.
45 Pacoy v. Cajigal, 560 Phil. 598, 609; 534 SCRA 338, 349 (2007).
330
330 SUPREME COURT REPORTS ANNOTATED
Hao vs. People
329
Under this legal situation, only a formal amendment of the
filed information under Section 14, Rule 110 of the Rules of
Court46 is necessary; the warrants of arrest issued against the
petitioners should not be nullified since probable cause exists
for simple estafa.
Suspension of Arraignment
Under Section 11(c), Rule 116 of the Rules of Court, an
arraignment may be suspended if there is a petition for review
of the resolution of the prosecutor pending at either the DOJ,
or the Office of the President. However, such period of
suspension should not exceed sixty (60) days counted
from the filing of the petition with the reviewing office.
As the petitioners alleged, they filed a petition for review
with the DOJ on November 21, 2003. Since this petition had
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46 Section 14. Amendment or substitution.—A complaint or information
may be amended, in form or in substance, without leave of court, at any time
before the accused enters his plea. After the plea and during the trial, a formal
amendment may only be made with leave of court and when it can be done
without causing prejudice to the rights of the accused.
 However, any amendment before plea, which downgrades the nature of the
offense charged in or excludes any accused from the complaint or information,
can be made only upon motion by the prosecutor, with notice to the offended
party and with leave of court. The court shall state its reasons in resolving the
motion and copies of its order shall be furnished all parties, especially the
offended party. (n)
If it appears at any time before judgment that a mistake has been made in
charging the proper offense, the court shall dismiss the original complaint or
information upon the filing of a new one charging the proper offense in
accordance with Section 19, Rule 119, provided the accused would not be placed
in double jeopardy. The court may require the witnesses to give bail for their
appearance at the trial. (14a)
331
VOL. 735, SEPTEMBER 17, 2014 331
Hao vs. People
not been resolved yet, they claimed that their arraignment
should be suspended indefinitely.
We emphasize that the right of an accused to have his
arraignment suspended is not an unqualified right. In Spouses
Trinidad v. Ang,47 we explained that while the pendency of a
petition for review is a ground for suspension of the
arraignment, the Rules limit the deferment of the
arraignment to a period of 60 days reckoned from the filing of
the petition with the reviewing office. It follows,
therefore, that after the expiration of the 60-day period,
the trial court is bound to arraign the accused or to
deny the motion to defer arraignment.48
As the trial court found in its February 26, 2004 order, the
DOJ’s delay in resolving the petitioners’ petition for review
had already exceeded 60 days. Since the suspension of the
petitioners’ arraignment was already beyond the period
allowed by the Rules, the petitioners’ motion to suspend
completely lacks any legal basis.
As a final note, we observe that the resolution of this case
had long been delayed because of the petitioners’ refusal to
submit to the trial court’s jurisdiction and their erroneous
invocation of the Rules in their favor. As there is probable
cause for the petitioners’ commission of a crime, their arrest
and arraignment should now ensue so that this case may
properly proceed to trial, where the merits of both the parties’
evidence and allegations may be weighed.
WHEREFORE, premises considered, we
hereby DENY the petition and AFFIRM WITH
MODIFICATION the February 28, 2006 decision and June
13, 2008 resolution of the Court of Appeals in C.A.-G.R. S.P.
No. 86289. We hereby order that petitioners Ma. Gracia Hao
and Danny Hao be charged for simple estafa under Article
315(2)(a) of the Re-
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47 G.R. No. 192898, January 31, 2011, 641 SCRA 214.
48 Id., at p. 218.
332
332 SUPREME COURT REPORTS ANNOTATED
Hao vs. People
vised Penal Code, as amended and be arraigned for this
charge. The warrants of arrest issued stand.
SO ORDERED.
Carpio (Chairperson), Del Castillo, Villarama, Jr.** and
Leonen, JJ., concur.
Petition denied, judgment and resolution affirmed with
modification.
Notes.—An accused may be convicted for estafa if the
deceit of false pretense is committed prior to or simultaneous
with fraud and is the efficient cause or primary consideration
which induced the offended party to part with his money or
property. (Galvez vs. Court of Appeals, 671 SCRA 222 [2012])
The elements of syndicated estafa are: (a) estafa or other
forms of swindling as defined in Articles 315 and 316 of the
Revised Penal Code is committed; (b) the estafa or swindling
is committed by a syndicate of five or more persons; and (c)
defraudation results in the misappropriation of moneys
contributed by stockholders, or members of rural banks,
cooperatives, “samahang nayon(s),” or farmers’ associations or
of funds solicited by corporations/associations from the general ——o0o——
public. (Galvez vs. Court of Appeals, 691 SCRA 455 [2013])