FACTS:
legislative franchise to render local and international telecommunication
PLDT sued Laurel, for violation of Art 308 RPC (theft), allegedly using
international long distance calls belonging to PLDT, without its knowledge
and consent
Laurel filed motion to quash information, contending "international calls
are not personal property
PLDT: "calls and right to conduct business”, both capable of
appropriation, thus personal property
FIRST DIVISION
G.R. No. 155076             February 27, 2006
LUIS MARCOS P. LAUREL, Petitioner,
vs.
HON. ZEUS C. ABROGAR, Presiding Judge of the Regional Trial
Court, Makati City, Branch 150, PEOPLE OF THE PHILIPPINES&
PHILIPPINE LONG DISTANCE TELEPHONE
COMPANY, Respondents.
DECISION
CALLEJO, SR., J.:
Before us is a Petition for Review on Certiorari of the Decision 1 of the
Court of Appeals (CA) in CA-G.R. SP No. 68841 affirming the Order
issued by Judge Zeus C. Abrogar, Regional Trial Court (RTC), Makati
City, Branch 150, which denied the "Motion to Quash (With Motion to
Defer Arraignment)" in Criminal Case No. 99-2425 for theft.
Philippine Long Distance Telephone Company (PLDT) is the holder of a
services under Republic Act No. 7082. 2 Under said law, PLDT is
authorized to establish, operate, manage, lease, maintain and purchase
telecommunication systems, including transmitting, receiving and
switching stations, for both domestic and international calls. For this
purpose, it has installed an estimated 1.7 million telephone lines
nationwide. PLDT also offers other services as authorized by Certificates
of Public Convenience and Necessity (CPCN) duly issued by the National
Telecommunications Commission (NTC), and operates and maintains an
International Gateway Facility (IGF). The PLDT network is thus principally
composed of the Public Switch Telephone Network (PSTN), telephone
handsets and/or telecommunications equipment used by its subscribers,
the wires and cables linking said telephone handsets and/or
telecommunications equipment, antenna, the IGF, and other
telecommunications equipment which provide interconnections. 3  1avvphil.net
PLDT alleges that one of the alternative calling patterns that constitute
network fraud and violate its network integrity is that which is known as
International Simple Resale (ISR). ISR is a method of routing and
completing international long distance calls using International Private
Leased Lines (IPL), cables, antenna or air wave or frequency, which
connect directly to the local or domestic exchange facilities of the
terminating country (the country where the call is destined). The IPL is
linked to switching equipment which is connected to a PLDT telephone
line/number. In the process, the calls bypass the IGF found at the
terminating country, or in some instances, even those from the originating
country.4
One such alternative calling service is that offered by Baynet Co., Ltd.
(Baynet) which sells "Bay Super Orient Card" phone cards to people who
call their friends and relatives in the Philippines. With said card, one is
entitled to a 27-minute call to the Philippines for about ¥37.03 per minute.
After dialing the ISR access number indicated in the phone card, the ISR
operator requests the subscriber to give the PIN number also indicated in
the phone card. Once the caller’s identity (as purchaser of the phone
card) is confirmed, the ISR operator will then provide a Philippine local
line to the requesting caller via the IPL. According to PLDT, calls made
through the IPL never pass the toll center of IGF operators in the
Philippines. Using the local line, the Baynet card user is able to place a
call to any point in the Philippines, provided the local line is National
Direct Dial (NDD) capable.5
PLDT asserts that Baynet conducts its ISR activities by utilizing an IPL to
course its incoming international long distance calls from Japan. The IPL
is linked to switching equipment, which is then connected to PLDT
telephone lines/numbers and equipment, with Baynet as subscriber.
Through the use of the telephone lines and other auxiliary equipment,
Baynet is able to connect an international long distance call from Japan
to any part of the Philippines, and make it appear as a call originating
from Metro Manila. Consequently, the operator of an ISR is able to evade
payment of access, termination or bypass charges and accounting rates,
as well as compliance with the regulatory requirements of the NTC. Thus,
the ISR operator offers international telecommunication services at a
lower rate, to the damage and prejudice of legitimate operators like
PLDT.6
PLDT pointed out that Baynet utilized the following equipment for its ISR
activities: lines, cables, and antennas or equipment or device capable of
transmitting air waves or frequency, such as an IPL and telephone lines
and equipment; computers or any equipment or device capable of
accepting information applying the prescribed process of the information
and supplying the result of this process; modems or any equipment or
device that enables a data terminal equipment such as computers to
communicate with other data terminal equipment via a telephone line;
multiplexers or any equipment or device that enables two or more signals
from different sources to pass through a common cable or transmission
line; switching equipment, or equipment or device capable of connecting
telephone lines; and software, diskettes, tapes or equipment or device
used for recording and storing information. 7
PLDT also discovered that Baynet subscribed to a total of 123 PLDT
telephone lines/numbers.8 Based on the Traffic Study conducted on the
volume of calls passing through Baynet’s ISR network which bypass the
IGF toll center, PLDT incurred an estimated monthly loss of
P10,185,325.96.9 Records at the Securities and Exchange Commission
(SEC) also revealed that Baynet was not authorized to provide
international or domestic long distance telephone service in the country.
The following are its officers: Yuji Hijioka, a Japanese national (chairman
of the board of directors); Gina C. Mukaida, a Filipina (board member and
president); Luis Marcos P. Laurel, a Filipino (board member and
corporate secretary); Ricky Chan Pe, a Filipino (board member and
treasurer); and Yasushi Ueshima, also a Japanese national (board
member).
Upon complaint of PLDT against Baynet for network fraud, and on the
strength of two search warrants 10 issued by the RTC of Makati, Branch
147, National Bureau of Investigation (NBI) agents searched its office at
the 7th Floor, SJG Building, Kalayaan Avenue, Makati City on November
8, 1999. Atsushi Matsuura, Nobuyoshi Miyake, Edourd D. Lacson and
Rolando J. Villegas were arrested by NBI agents while in the act of
manning the operations of Baynet. Seized in the premises during the
search were numerous equipment and devices used in its ISR activities,
such as multiplexers, modems, computer monitors, CPUs, antenna,
assorted computer peripheral cords and microprocessors, cables/wires,
assorted PLDT statement of accounts, parabolic antennae and voltage
regulators.
State Prosecutor Ofelia L. Calo conducted an inquest investigation and
issued a Resolution11 on January 28, 2000, finding probable cause for
theft under Article 308 of the Revised Penal Code and Presidential
Decree No. 40112 against the respondents therein, including Laurel.
On February 8, 2000, State Prosecutor Calo filed an Information with the
RTC of Makati City charging Matsuura, Miyake, Lacson and Villegas with
theft under Article 308 of the Revised Penal Code. After conducting the
requisite preliminary investigation, the State Prosecutor filed an Amended
Information impleading Laurel (a partner in the law firm of Ingles, Laurel,
Salinas, and, until November 19, 1999, a member of the board of
directors and corporate secretary of Baynet), and the other members of
the board of directors of said corporation, namely, Yuji Hijioka, Yasushi
Ueshima, Mukaida, Lacson and Villegas, as accused for theft under
Article 308 of the Revised Penal Code. The inculpatory portion of the
Amended Information reads:
On or about September 10-19, 1999, or prior thereto, in Makati City, and
within the jurisdiction of this Honorable Court, the accused, conspiring
and confederating together and all of them mutually helping and aiding
one another, with intent to gain and without the knowledge and consent
of the Philippine Long Distance Telephone (PLDT), did then and there
willfully, unlawfully and feloniously take, steal and use the international
long distance calls belonging to PLDT by conducting International Simple
Resale (ISR), which is a method of routing and completing international
long distance calls using lines, cables, antennae, and/or air wave
frequency which connect directly to the local or domestic exchange
facilities of the country where the call is destined, effectively stealing this
business from PLDT while using its facilities in the estimated amount of
P20,370,651.92 to the damage and prejudice of PLDT, in the said
amount.
CONTRARY TO LAW.13
Accused Laurel filed a "Motion to Quash (with Motion to Defer
Arraignment)" on the ground that the factual allegations in the Amended
Information do not constitute the felony of theft under Article 308 of the
Revised Penal Code. He averred that the Revised Penal Code, or any
other special penal law for that matter, does not prohibit ISR operations.
He claimed that telephone calls with the use of PLDT telephone lines,
whether domestic or international, belong to the persons making the call,
not to PLDT. He argued that the caller merely uses the facilities of PLDT,
and what the latter owns are the telecommunication infrastructures or
facilities through which the call is made. He also asserted that PLDT is
compensated for the caller’s use of its facilities by way of rental; for an
outgoing overseas call, PLDT charges the caller per minute, based on
the duration of the call. Thus, no personal property was stolen from
PLDT. According to Laurel, the P20,370,651.92 stated in the Information,
if anything, represents the rental for the use of PLDT facilities, and not
the value of anything owned by it. Finally, he averred that the allegations
in the Amended Information are already subsumed under the Information
for violation of Presidential Decree (P.D.) No. 401 filed and pending in the
Metropolitan Trial Court of Makati City, docketed as Criminal Case No.
276766.
The prosecution, through private complainant PLDT, opposed the
motion,14 contending that the movant unlawfully took personal property
belonging to it, as follows: 1) intangible telephone services that are being
offered by PLDT and other telecommunication companies, i.e., the
connection and interconnection to their telephone lines/facilities; 2) the
use of those facilities over a period of time; and 3) the revenues derived
in connection with the rendition of such services and the use of such
facilities.15
The prosecution asserted that the use of PLDT’s intangible telephone
services/facilities allows electronic voice signals to pass through the
same, and ultimately to the called party’s number. It averred that such
service/facility is akin to electricity which, although an intangible property,
may, nevertheless, be appropriated and be the subject of theft. Such
service over a period of time for a consideration is the business that
PLDT provides to its customers, which enables the latter to send various
messages to installed recipients. The service rendered by PLDT is akin
to merchandise which has specific value, and therefore, capable of
appropriation by another, as in this case, through the ISR operations
conducted by the movant and his co-accused.
The prosecution further alleged that "international business calls and
revenues constitute personal property envisaged in Article 308 of the
Revised Penal Code." Moreover, the intangible telephone
services/facilities belong to PLDT and not to the movant and the other
accused, because they have no telephone services and facilities of their
own duly authorized by the NTC; thus, the taking by the movant and his
co-accused of PLDT services was with intent to gain and without the
latter’s consent.
The prosecution pointed out that the accused, as well as the movant,
were paid in exchange for their illegal appropriation and use of PLDT’s
telephone services and facilities; on the other hand, the accused did not
pay a single centavo for their illegal ISR operations. Thus, the acts of the
accused were akin to the use of a "jumper" by a consumer to deflect the
current from the house electric meter, thereby enabling one to steal
electricity. The prosecution emphasized that its position is fortified by the
Resolutions of the Department of Justice in PLDT v. Tiongson, et al. (I.S.
No. 97-0925) and in PAOCTF-PLDT v. Elton John Tuason, et al. (I.S. No.
2000-370) which were issued on August 14, 2000 finding probable cause
for theft against the respondents therein.
On September 14, 2001, the RTC issued an Order 16 denying the Motion
to Quash the Amended Information. The court declared that, although
there is no law that expressly prohibits the use of ISR, the facts alleged in
the Amended Information "will show how the alleged crime was
committed by conducting ISR," to the damage and prejudice of PLDT.
Laurel filed a Motion for Reconsideration 17 of the Order, alleging that
international long distance calls are not personal property, and are not
capable of appropriation. He maintained that business or revenue is not
considered personal property, and that the prosecution failed to adduce
proof of its existence and the subsequent loss of personal property
belonging to another. Citing the ruling of the Court in United States v. De
Guzman,18 Laurel averred that the case is not one with telephone calls
which originate with a particular caller and terminates with the called
party. He insisted that telephone calls are considered privileged
communications under the Constitution and cannot be considered as "the
property of PLDT." He further argued that there is no kinship between
telephone calls and electricity or gas, as the latter are forms of energy
which are generated and consumable, and may be considered as
personal property because of such characteristic. On the other hand, the
movant argued, the telephone business is not a form of energy but is an
activity.
In its Order19 dated December 11, 2001, the RTC denied the movant’s
Motion for Reconsideration. This time, it ruled that what was stolen from
PLDT was its "business" because, as alleged in the Amended
Information, the international long distance calls made through the
facilities of PLDT formed part of its business. The RTC noted that the
movant was charged with stealing the business of PLDT. To support its
ruling, it cited Strochecker v. Ramirez, 20 where the Court ruled that
interest in business is personal property capable of appropriation. It
further declared that, through their ISR operations, the movant and his
co-accused deprived PLDT of fees for international long distance calls,
and that the ISR used by the movant and his co-accused was no different
from the "jumper" used for stealing electricity.
Laurel then filed a Petition for Certiorari with the CA, assailing the Order
of the RTC. He alleged that the respondent judge gravely abused his
discretion in denying his Motion to Quash the Amended Information. 21 As
gleaned from the material averments of the amended information, he was
charged with stealing the international long distance calls belonging to
PLDT, not its business. Moreover, the RTC failed to distinguish between
the business of PLDT (providing services for international long distance
calls) and the revenues derived therefrom. He opined that a "business" or
its revenues cannot be considered as personal property under Article 308
of the Revised Penal Code, since a "business" is "(1) a commercial or
mercantile activity customarily engaged in as a means of livelihood and
typically involving some independence of judgment and power of
decision; (2) a commercial or industrial enterprise; and (3) refers to
transactions, dealings or intercourse of any nature." On the other hand,
the term "revenue" is defined as "the income that comes back from an
investment (as in real or personal property); the annual or periodical
rents, profits, interests, or issues of any species of real or personal
property."22
Laurel further posited that an electric company’s business is the
production and distribution of electricity; a gas company’s business is the
production and/or distribution of gas (as fuel); while a water company’s
business is the production and distribution of potable water. He argued
that the "business" in all these cases is the commercial activity, while the
goods and merchandise are the products of such activity. Thus, in
prosecutions for theft of certain forms of energy, it is the electricity or gas
which is alleged to be stolen and not the "business" of providing
electricity or gas. However, since a telephone company does not produce
any energy, goods or merchandise and merely renders a service or, in
the words of PLDT, "the connection and interconnection to their
telephone lines/facilities," such service cannot be the subject of theft as
defined in Article 308 of the Revised Penal Code. 23
He further declared that to categorize "business" as personal property
under Article 308 of the Revised Penal Code would lead to absurd
consequences; in prosecutions for theft of gas, electricity or water, it
would then be permissible to allege in the Information that it is the gas
business, the electric business or the water business which has been
stolen, and no longer the merchandise produced by such enterprise. 24
Laurel further cited the Resolution of the Secretary of Justice in Piltel v.
Mendoza,25 where it was ruled that the Revised Penal Code, legislated as
it was before present technological advances were even conceived, is
not adequate to address the novel means of "stealing" airwaves or
airtime. In said resolution, it was noted that the inadequacy prompted the
filing of Senate Bill 2379 (sic) entitled "The Anti-Telecommunications
Fraud of 1997" to deter cloning of cellular phones and other forms of
communications fraud. The said bill "aims to protect in number (ESN)
(sic) or Capcode, mobile identification number (MIN), electronic-
international mobile equipment identity (EMEI/IMEI), or subscriber
identity module" and "any attempt to duplicate the data on another
cellular phone without the consent of a public telecommunications entity
would be punishable by law." 26 Thus, Laurel concluded, "there is no crime
if there is no law punishing the crime."
On August 30, 2002, the CA rendered judgment dismissing the
petition.27 The appellate court ruled that a petition for certiorari under Rule
65 of the Rules of Court was not the proper remedy of the petitioner. On
the merits of the petition, it held that while business is generally an
activity
which is abstract and intangible in form, it is nevertheless considered
"property" under Article 308 of the Revised Penal Code. The CA opined
that PLDT’s business of providing international calls is personal property
which may be the object of theft, and cited United States v. Carlos 28 to
support such conclusion. The tribunal also cited Strochecker v.
Ramirez,29 where this Court ruled that one-half interest in a day’s
business is personal property under Section 2 of Act No. 3952, otherwise
known as the Bulk Sales Law. The appellate court held that the
operations of the ISR are not subsumed in the charge for violation of P.D.
No. 401.
Laurel, now the petitioner, assails the decision of the CA, contending that
-
 THE COURT OF APPEALS ERRED IN RULING THAT THE
PERSONAL PROPERTY ALLEGEDLY STOLEN PER THE
INFORMATION IS NOT THE "INTERNATIONAL LONG
DISTANCE CALLS" BUT THE "BUSINESS OF PLDT."
THE COURT OF APPEALS ERRED IN RULING THAT THE
TERM "BUSINESS" IS PERSONAL PROPERTY WITHIN THE
MEANING OF ART. 308 OF THE REVISED PENAL CODE.30
Petitioner avers that the petition for a writ of certiorari may be filed to
nullify an interlocutory order of the trial court which was issued with grave
abuse of discretion amounting to excess or lack of jurisdiction. In support
of his petition before the Court, he reiterates the arguments in his
pleadings filed before the CA. He further claims that while the right to
carry on a business or an interest or participation in business is
considered property under the New Civil Code, the term "business,"
however, is not. He asserts that the Philippine Legislature, which
approved the Revised Penal Code way back in January 1, 1932, could
not have contemplated to include international long distance calls and
"business" as personal property under Article 308 thereof.
In its comment on the petition, the Office of the Solicitor General (OSG)
maintains that the amended information clearly states all the essential
elements of the crime of theft. Petitioner’s interpretation as to whether an
"international long distance call" is personal property under the law is
inconsequential, as a reading of the amended information readily reveals
that specific acts and circumstances were alleged charging Baynet,
through its officers, including petitioner, of feloniously taking, stealing and
illegally using international long distance calls belonging to respondent
PLDT by conducting ISR operations, thus, "routing and completing
international long distance calls using lines, cables, antenna and/or
airwave frequency which connect directly to the local or domestic
exchange facilities of the country where the call is destined." The OSG
maintains that the international long distance calls alleged in the
amended information should be construed to mean "business" of PLDT,
which, while abstract and intangible in form, is personal property
susceptible of appropriation. 31 The OSG avers that what was stolen by
petitioner and his co-accused is the business of PLDT providing
international long distance calls which, though intangible, is personal
property of the PLDT.32
For its part, respondent PLDT asserts that personal property under
Article 308 of the Revised Penal Code comprehends intangible property
such as electricity and gas which are valuable articles for merchandise,
brought and sold like other personal property, and are capable of
appropriation. It insists that the business of international calls and
revenues constitute personal property because the same are valuable
articles of merchandise. The respondent reiterates that international calls
involve (a) the intangible telephone services that are being offered by it,
that is, the connection and interconnection to the telephone network,
lines or facilities; (b) the use of its telephone network, lines or facilities
over a period of time; and (c) the income derived in connection
therewith.33
PLDT further posits that business revenues or the income derived in
connection with the rendition of such services and the use of its
telephone network, lines or facilities are personal properties under Article
308 of the Revised Penal Code; so is the use of said telephone
services/telephone network, lines or facilities which allow electronic voice
signals to pass through the same and ultimately to the called party’s
number. It is akin to electricity which, though intangible property, may
nevertheless be appropriated and can be the object of theft. The use of
respondent PLDT’s telephone network, lines, or facilities over a period of
time for consideration is the business that it provides to its customers,
which enables the latter to send various messages to intended recipients.
Such use over a period of time is akin to merchandise which has value
and, therefore, can be appropriated by another. According to respondent
PLDT, this is what actually happened when petitioner Laurel and the
other accused below conducted illegal ISR operations. 34
The petition is meritorious.
The issues for resolution are as follows: (a) whether or not the petition for
certiorari is the proper remedy of the petitioner in the Court of Appeals;
(b) whether or not international telephone calls using Bay Super Orient
Cards through the telecommunication services provided by PLDT for
such calls, or, in short, PLDT’s business of providing said
telecommunication services, are proper subjects of theft under Article
308 of the Revised Penal Code; and (c) whether or not the trial court
committed grave abuse of discretion amounting to excess or lack of
jurisdiction in denying the motion of the petitioner to quash the amended
information.
On the issue of whether or not the petition for certiorari instituted by the
petitioner in the CA is proper, the general rule is that a petition for
certiorari under Rule 65 of the Rules of Court, as amended, to nullify an
order denying a motion to quash the Information is inappropriate because
the aggrieved party has a remedy of appeal in the ordinary course of law.
Appeal and certiorari are mutually exclusive of each other. The remedy of
the aggrieved party is to continue with the case in due course and, when
an unfavorable judgment is rendered, assail the order and the decision
on appeal. However, if the trial court issues the order denying the motion
to quash the Amended Information with grave abuse of discretion
amounting to excess or lack of jurisdiction, or if such order is patently
erroneous, or null and void for being contrary to the Constitution, and the
remedy of appeal would not afford adequate and expeditious relief, the
accused may resort to the extraordinary remedy of certiorari. 35 A special
civil action for certiorari is also available where there are special
circumstances clearly demonstrating the inadequacy of an appeal. As
this Court held in Bristol Myers Squibb (Phils.), Inc. v. Viloria: 36
Nonetheless, the settled rule is that a writ of certiorari may be granted in
cases where, despite availability of appeal after trial, there is at least a
prima facie showing on the face of the petition and its annexes that: (a)
the trial court issued the order with grave abuse of discretion amounting
to lack of or in excess of jurisdiction; (b) appeal would not prove to be a
speedy and adequate remedy; (c) where the order is a patent nullity; (d)
the decision in the present case will arrest future litigations; and (e) for
certain considerations such as public welfare and public policy.37
In his petition for certiorari in the CA, petitioner averred that the trial court
committed grave abuse of its discretion amounting to excess or lack of
jurisdiction when it denied his motion to quash the Amended Information
despite his claim that the material allegations in the Amended Information
do not charge theft under Article 308 of the Revised Penal Code, or any
offense for that matter. By so doing, the trial court deprived him of his
constitutional right to be informed of the nature of the charge against him.
He further averred that the order of the trial court is contrary to the
constitution and is, thus, null and void. He insists that he should not be
compelled to undergo the rigors and tribulations of a protracted trial and
incur expenses to defend himself against a non-existent charge.
Petitioner is correct.
An information or complaint must state explicitly and directly every act or
omission constituting an offense38 and must allege facts establishing
conduct that a penal statute makes criminal; 39 and describes the property
which is the subject of theft to advise the accused with reasonable
certainty of the accusation he is called upon to meet at the trial and to
enable him to rely on the judgment thereunder of a subsequent
prosecution for the same offense. 40 It must show, on its face, that if the
alleged facts are true, an offense has been committed. The rule is rooted
on the constitutional right of the accused to be informed of the nature of
the crime or cause of the accusation against him. He cannot be convicted
of an offense even if proven unless it is alleged or necessarily included in
the Information filed against him.
As a general prerequisite, a motion to quash on the ground that the
Information does not constitute the offense charged, or any offense for
that matter, should be resolved on the basis of said allegations whose
truth and veracity are hypothetically committed; 41 and on additional facts
admitted or not denied by the prosecution. 42 If the facts alleged in the
Information do not constitute an offense, the complaint or information
should be quashed by the court.43
We have reviewed the Amended Information and find that, as mentioned
by the petitioner, it does not contain material allegations charging the
petitioner of theft of personal property under Article 308 of the Revised
Penal Code. It, thus, behooved the trial court to quash the Amended
Information. The Order of the trial court denying the motion of the
petitioner to quash the Amended Information is a patent nullity.
On the second issue, we find and so hold that the international telephone
calls placed by Bay Super Orient Card holders, the telecommunication
services provided by PLDT and its business of providing said services
are not personal properties under Article 308 of the Revised Penal Code.
The construction by the respondents of Article 308 of the said Code to
include, within its coverage, the aforesaid international telephone calls,
telecommunication services and business is contrary to the letter and
intent of the law.
The rule is that, penal laws are to be construed strictly. Such rule is
founded on the tenderness of the law for the rights of individuals and on
the plain principle that the power of punishment is vested in Congress,
not in the judicial department. It is Congress, not the Court, which is to
define a crime, and ordain its punishment.44 Due respect for the
prerogative of Congress in defining crimes/felonies constrains the Court
to refrain from a broad interpretation of penal laws where a "narrow
interpretation" is appropriate. The Court must take heed to language,
legislative history and purpose, in order to strictly determine the wrath
and breath of the conduct the law forbids. 45 However, when the
congressional purpose is unclear, the court must apply the rule of lenity,
that is, ambiguity concerning the ambit of criminal statutes should be
resolved in favor of lenity.46
Penal statutes may not be enlarged by implication or intent beyond the
fair meaning of the language used; and may not be held to include
offenses other than those which are clearly described, notwithstanding
that the Court may think that Congress should have made them more
comprehensive.47 Words and phrases in a statute are to be construed
according to their common meaning and accepted usage.
As Chief Justice John Marshall declared, "it would be dangerous, indeed,
to carry the principle that a case which is within the reason or
mischief of a statute is within its provision, so far as to punish a crime not
enumerated in the statute because it is of equal atrocity, or of kindred
character with those which are enumerated. 48 When interpreting a
criminal statute that does not explicitly reach the conduct in question, the
Court should not base an expansive reading on inferences from
subjective and variable understanding. 49
Article 308 of the Revised Penal Code defines theft as follows:
Art. 308. Who are liable for theft.– Theft is committed by any person who,
with intent to gain but without violence, against or intimidation of persons
nor force upon things, shall take personal property of another without the
latter’s consent.
The provision was taken from Article 530 of the Spanish Penal Code
which reads:
1. Los que con ánimo de lucrarse, y sin violencia o intimidación en las
personas ni fuerza en las cosas, toman las cosas muebles ajenas sin la
voluntad de su dueño.50
For one to be guilty of theft, the accused must have an intent to steal
(animus furandi) personal property, meaning the intent to deprive another
of his ownership/lawful possession of personal property which intent is
apart from and concurrently with the general criminal intent which is an
essential element of a felony of dolo (dolus malus).
An information or complaint for simple theft must allege the following
elements: (a) the taking of personal property; (b) the said property
belongs to another; (c) the taking be done with intent to gain; and (d) the
taking be accomplished without the use of violence or intimidation of
person/s or force upon things.51
One is apt to conclude that "personal property" standing alone, covers
both tangible and intangible properties and are subject of theft under the
Revised Penal Code. But the words "Personal property" under the
Revised Penal Code must be considered in tandem with the word "take"
in the law. The statutory definition of "taking" and movable property
indicates that, clearly, not all personal properties may be the proper
subjects of theft. The general rule is that, only movable properties which
have physical or material existence and susceptible of occupation by
another are proper objects of theft. 52 As explained by Cuelo Callon: "Cosa
juridicamente es toda sustancia corporal, material, susceptible de ser
aprehendida que tenga un valor cualquiera." 53
According to Cuello Callon, in the context of the Penal Code, only those
movable properties which can be taken and carried from the place they
are found are proper subjects of theft. Intangible properties such as rights
and ideas are not subject of theft because the same cannot be "taken"
from the place it is found and is occupied or appropriated.
Solamente las cosas muebles y corporales pueden ser objeto de hurto.
La sustracción de cosas inmuebles y la cosas incorporales (v. gr., los
derechos, las ideas) no puede integrar este delito, pues no es posible
asirlas, tomarlas, para conseguir su apropiación. El Codigo emplea la
expresión "cosas mueble" en el sentido de cosa que es susceptible de
ser llevada del lugar donde se encuentra, como dinero, joyas, ropas,
etcétera, asi que su concepto no coincide por completo con el formulado
por el Codigo civil (arts. 335 y 336).54
Thus, movable properties under Article 308 of the Revised Penal Code
should be distinguished from the rights or interests to which they relate. A
naked right existing merely in contemplation of law, although it may be
very valuable to the person who is entitled to exercise it, is not the
subject of theft or larceny. 55 Such rights or interests are intangible and
cannot be "taken" by another. Thus, right to produce oil, good will or an
interest in business, or the right to engage in business, credit or franchise
are properties. So is the credit line represented by a credit card.
However, they are not proper subjects of theft or larceny because they
are without form or substance, the mere "breath" of the Congress. On the
other hand, goods, wares and merchandise of businessmen and credit
cards issued to them are movable properties with physical and material
existence and may be taken by another; hence, proper subjects of theft.
There is "taking" of personal property, and theft is consummated when
the offender unlawfully acquires possession of personal property even if
for a short time; or if such property is under the dominion and control of
the thief. The taker, at some particular amount, must have obtained
complete and absolute possession and control of the property adverse to
the rights of the owner or the lawful possessor thereof. 56 It is not
necessary that the property be actually carried away out of the physical
possession of the lawful possessor or that he should have made his
escape with it.57 Neither asportation nor actual manual possession of
property is required. Constructive possession of the thief of the property
is enough.58
The essence of the element is the taking of a thing out of the possession
of the owner without his privity and consent and without animus
revertendi.59
Taking may be by the offender’s own hands, by his use of innocent
persons without any felonious intent, as well as any mechanical device,
such as an access device or card, or any agency, animate or inanimate,
with intent to gain. Intent to gain includes the unlawful taking of personal
property for the purpose of deriving utility, satisfaction, enjoyment and
pleasure.60
We agree with the contention of the respondents that intangible
properties such as electrical energy and gas are proper subjects of theft.
The reason for this is that, as explained by this Court in United States v.
Carlos61 and United States v. Tambunting, 62 based on decisions of the
Supreme Court of Spain and of the courts in England and the United
States of America, gas or electricity are capable of appropriation by
another other than the owner. Gas and electrical energy may be taken,
carried away and appropriated. In People v. Menagas, 63 the Illinois State
Supreme Court declared that electricity, like gas, may be seen and felt.
Electricity, the same as gas, is a valuable article of merchandise, bought
and sold like other personal property and is capable of appropriation by
another. It is a valuable article of merchandise, bought and sold like other
personal property, susceptible of being severed from a mass or larger
quantity and of being transported from place to place. Electrical energy
may, likewise, be taken and carried away. It is a valuable commodity,
bought and sold like other personal property. It may be transported from
place to place. There is nothing in the nature of gas used for illuminating
purposes which renders it incapable of being feloniously taken and
carried away.
In People ex rel Brush Electric Illuminating Co. v. Wemple, 64 the Court of
Appeals of New York held that electric energy is manufactured and sold
in determinate quantities at a fixed price, precisely as are coal, kerosene
oil, and gas. It may be conveyed to the premises of the consumer, stored
in cells of different capacity known as an accumulator; or it may be sent
through a wire, just as gas or oil may be transported either in a close tank
or forced through a pipe. Having reached the premises of the consumer,
it may be used in any way he may desire, being, like illuminating gas,
capable of being transformed either into heat, light, or power, at the
option of the purchaser. In Woods v. People, 65 the Supreme Court of
Illinois declared that there is nothing in the nature of gas used for
illuminating purposes which renders it incapable of being feloniously
taken and carried away. It is a valuable article of merchandise, bought
and sold like other personal property, susceptible of being severed from a
mass or larger quantity and of being transported from place to place.
Gas and electrical energy should not be equated with business or
services provided by business entrepreneurs to the public. Business
does not have an exact definition. Business is referred as that which
occupies the time, attention and labor of men for the purpose of livelihood
or profit. It embraces everything that which a person can be
employed.66 Business may also mean employment, occupation or
profession. Business is also defined as a commercial activity for gain
benefit or advantage.67 Business, like services in business, although are
properties, are not proper subjects of theft under the Revised Penal Code
because the same cannot be "taken" or "occupied." If it were otherwise,
as claimed by the respondents, there would be no juridical difference
between the taking of the business of a person or the services provided
by him for gain, vis-à-vis, the taking of goods, wares or merchandise, or
equipment comprising his business.68 If it was its intention to include
"business" as personal property under Article 308 of the Revised Penal
Code, the Philippine Legislature should have spoken in language that is
clear and definite: that business is personal property under Article 308 of
the Revised Penal Code.69
We agree with the contention of the petitioner that, as gleaned from the
material averments of the Amended Information, he is charged of
"stealing the international long distance calls belonging to PLDT" and the
use thereof, through the ISR. Contrary to the claims of the OSG and
respondent PLDT, the petitioner is not charged of stealing
P20,370,651.95 from said respondent. Said amount of P20,370,651.95
alleged in the Amended Information is the aggregate amount of access,
transmission or termination charges which the PLDT expected from the
international long distance calls of the callers with the use of Baynet
Super Orient Cards sold by Baynet Co. Ltd.
In defining theft, under Article 308 of the Revised Penal Code, as the
taking of personal property without the consent of the owner thereof, the
Philippine legislature could not have contemplated the human voice
which is converted into electronic impulses or electrical current which are
transmitted to the party called through the PSTN of respondent PLDT
and the ISR of Baynet Card Ltd. within its coverage. When the Revised
Penal Code was approved, on December 8, 1930, international
telephone calls and the transmission and routing of electronic voice
signals or impulses emanating from said calls, through the PSTN, IPL
and ISR, were still non-existent. Case law is that, where a legislative
history fails to evidence congressional awareness of the scope of the
statute claimed by the respondents, a narrow interpretation of the law is
more consistent with the usual approach to the construction of the
statute. Penal responsibility cannot be extended beyond the fair scope of
the statutory mandate.70
Respondent PLDT does not acquire possession, much less, ownership of
the voices of the telephone callers or of the electronic voice signals or
current emanating from said calls. The human voice and the electronic
voice signals or current caused thereby are intangible and not
susceptible of possession, occupation or appropriation by the respondent
PLDT or even the petitioner, for that matter. PLDT merely transmits the
electronic voice signals through its facilities and equipment. Baynet Card
Ltd., through its operator, merely intercepts, reroutes the calls and
passes them to its toll center. Indeed, the parties called receive the
telephone calls from Japan.
In this modern age of technology, telecommunications systems have
become so tightly merged with computer systems that it is difficult to
know where one starts and the other finishes. The telephone set is highly
computerized and allows computers to communicate across long
distances.71 The instrumentality at issue in this case is not merely a
telephone but a telephone inexplicably linked to a computerized
communications system with the use of Baynet Cards sold by the Baynet
Card Ltd. The corporation uses computers, modems and software,
among others, for its ISR.72
The conduct complained of by respondent PLDT is reminiscent of
"phreaking" (a slang term for the action of making a telephone system to
do something that it normally should not allow by "making the phone
company bend over and grab its ankles"). A "phreaker" is one who
engages in the act of manipulating phones and illegally markets
telephone services.73 Unless the phone company replaces all its
hardware, phreaking would be impossible to stop. The phone companies
in North America were impelled to replace all their hardware and adopted
full digital switching system known as the Common Channel Inter Office
Signaling. Phreaking occurred only during the 1960’s and 1970’s,
decades after the Revised Penal Code took effect.
The petitioner is not charged, under the Amended Information, for theft of
telecommunication or telephone services offered by PLDT. Even if he is,
the term "personal property" under Article 308 of the Revised Penal Code
cannot be interpreted beyond its seams so as to include
"telecommunication or telephone services" or computer services for that
matter. The word "service" has a variety of meanings dependent upon the
context, or the sense in which it is used; and, in some instances, it may
include a sale. For instance, the sale of food by restaurants is usually
referred to as "service," although an actual sale is involved. 74 It may also
mean the duty or labor to be rendered by one person to another;
performance of labor for the benefit of another. 75 In the case of PLDT, it is
to render local and international telecommunications services and such
other services as authorized by the CPCA issued by the NTC. Even at
common law, neither time nor services may be taken and occupied or
appropriated.76 A service is generally not considered property and a theft
of service would not, therefore, constitute theft since there can be no
caption or asportation.77 Neither is the unauthorized use of the equipment
and facilities of PLDT by the petitioner theft under the aforequoted
provision of the Revised Penal Code.78
If it was the intent of the Philippine Legislature, in 1930, to include
services to be the subject of theft, it should have incorporated the same
in Article 308 of the Revised Penal Code. The Legislature did not. In fact,
the Revised Penal Code does not even contain a definition of services.
If taking of telecommunication services or the business of a person, is to
be proscribed, it must be by special statute 79 or an amendment of the
Revised Penal Code. Several states in the United States, such as New
York, New Jersey, California and Virginia, realized that their criminal
statutes did not contain any provisions penalizing the theft of services
and passed laws defining and penalizing theft of telephone and computer
services. The Pennsylvania Criminal Statute now penalizes theft of
services, thus:
(a) Acquisition of services. --
(1) A person is guilty of theft if he intentionally obtains services for himself
or for another which he knows are available only for compensation, by
deception or threat, by altering or tampering with the public utility meter
or measuring device by which such services are delivered or by causing
or permitting such altering or tampering, by making or maintaining any
unauthorized connection, whether physically, electrically or inductively, to
a distribution or transmission line, by attaching or maintaining the
attachment of any unauthorized device to any cable, wire or other
component of an electric, telephone or cable television system or to a
television receiving set connected to a cable television system, by
making or maintaining any unauthorized modification or alteration to any
device installed by a cable television system, or by false token or other
trick or artifice to avoid payment for the service.
In the State of Illinois in the United States of America, theft of labor or
services or use of property is penalized:
(a) A person commits theft when he obtains the temporary use of
property, labor or services of another which are available only for hire, by
means of threat or deception or knowing that such use is without the
consent of the person providing the property, labor or services.
In 1980, the drafters of the Model Penal Code in the United States of
America arrived at the conclusion that labor and services, including
professional services, have not been included within the traditional scope
of the term "property" in ordinary theft statutes. Hence, they decided to
incorporate in the Code Section 223.7, which defines and penalizes theft
of services, thus:
(1) A person is guilty of theft if he purposely obtains services which he
knows are available only for compensation, by deception or threat, or by
false token or other means to avoid payment for the service. "Services"
include labor, professional service, transportation, telephone or other
public service, accommodation in hotels, restaurants or elsewhere,
admission to exhibitions, use of vehicles or other movable property.
Where compensation for service is ordinarily paid immediately upon the
rendering of such service, as in the case of hotels and restaurants,
refusal to pay or absconding without payment or offer to pay gives rise to
a presumption that the service was obtained by deception as to intention
to pay; (2) A person commits theft if, having control over the disposition
of services of others, to which he is not entitled, he knowingly diverts
such services to his own benefit or to the benefit of another not entitled
thereto.
Interestingly, after the State Supreme Court of Virginia promulgated its
decision in Lund v. Commonwealth, 80 declaring that neither time nor
services may be taken and carried away and are not proper subjects of
larceny, the General Assembly of Virginia enacted Code No. 18-2-98
which reads:
Computer time or services or data processing services or information or
data stored in connection therewith is hereby defined to be property
which may be the subject of larceny under § § 18.2-95 or 18.2-96, or
embezzlement under § 18.2-111, or false pretenses under § 18.2-178.
In the State of Alabama, Section 13A-8-10(a)(1) of the Penal Code of
Alabama of 1975 penalizes theft of services:
"A person commits the crime of theft of services if: (a) He intentionally
obtains services known by him to be available only for compensation by
deception, threat, false token or other means to avoid payment for the
services …"
In the Philippines, Congress has not amended the Revised Penal Code
to include theft of services or theft of business as felonies. Instead, it
approved a law, Republic Act No. 8484, otherwise known as the Access
Devices Regulation Act of 1998, on February 11, 1998. Under the law, an
access device means any card, plate, code, account number, electronic
serial number, personal identification number and other
telecommunication services, equipment or instrumentalities-identifier or
other means of account access that can be used to obtain money, goods,
services or any other thing of value or to initiate a transfer of funds other
than a transfer originated solely by paper instrument. Among the
prohibited acts enumerated in Section 9 of the law are the acts of
obtaining money or anything of value through the use of an access
device, with intent to defraud or intent to gain and fleeing thereafter; and
of effecting transactions with one or more access devices issued to
another person or persons to receive payment or any other thing of
value. Under Section 11 of the law, conspiracy to commit access devices
fraud is a crime. However, the petitioner is not charged of violation of
R.A. 8484.
Significantly, a prosecution under the law shall be without prejudice to
any liability for violation of any provisions of the Revised Penal Code
inclusive of theft under Rule 308 of the Revised Penal Code and estafa
under Article 315 of the Revised Penal Code. Thus, if an individual steals
a credit card and uses the same to obtain services, he is liable of the
following: theft of the credit card under Article 308 of the Revised Penal
Code; violation of Republic Act No. 8484; and estafa under Article 315(2)
(a) of the Revised Penal Code with the service provider as the private
complainant. The petitioner is not charged of estafa before the RTC in
the Amended Information.

Section 33 of Republic Act No. 8792, Electronic Commerce Act of 2000

provides:

Sec. 33. Penalties.— The following Acts shall be penalized by fine and/or
imprisonment, as follows:

a) Hacking or cracking which refers to unauthorized access into or

interference in a computer system/server or information and
communication system; or any access in order to corrupt, alter, steal, or
destroy using a computer or other similar information and communication
devices, without the knowledge and consent of the owner of the
computer or information and communications system, including the
introduction of computer viruses and the like, resulting on the corruption,
destruction, alteration, theft or loss of electronic data messages or
electronic documents shall be punished by a minimum fine of One
hundred thousand pesos (P100,000.00) and a maximum commensurate
to the damage incurred and a mandatory imprisonment of six (6) months
to three (3) years.

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The

assailed Orders of the Regional Trial Court and the Decision of the Court
of Appeals are REVERSED and SET ASIDE. The Regional Trial Court is
directed to issue an order granting the motion of the petitioner to quash
the Amended Information. SO ORDERED.