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ANTI-HAZING LAW Yes, the responsible officials of the school or of the
police, military or citizen's army training organization, may impose
the appropriate administrative sanctions on the person or the
1.00 DEFINE HAZING (Sec.1) / BAR Q. [2002] What is persons charged under this provision even before their conviction.
hazing as defined by law?
1.05 WHEN IS THE OWNER OF THE PLACE LIABLE AS
Section 1 defines “hazing” as follows: AN ACCOMPLICE? (Sec.4)

“It is an initiation rite or practice as a prerequisite for He is liable when he has actual knowledge of the hazing
admission into membership in a fraternity, sorority or conducted therein but failed to take any action to prevent the same
organization by placing the recruit, neophyte or applicant in from occurring.
some embarrassing or humiliating situations such as forcing
him to do menial, silly, foolish and other similar tasks or 1.06 WHEN SHALL THE PARENTS BE LIABLE AS
activities or otherwise subjecting him to physical or PRINCIPALS? (Sec.4)
psychological suffering or injury.”
Yes, parents may be liable as principals if:
1.01 WHAT ARE THE REQUISITES BEFORE HAZING OR
INITIATION RITES SHALL BE ALLOWED? (Sec.2) a. The hazing is held in the home of one of the officers or
members of the fraternity, group, or organization;
A prior written notice to the school authorities or head of
organization must be given seven (7) days before the conduct of b. The parents have actual knowledge of the hazing
such initiation. conducted therein but failed to take any action to prevent the same
from occurring.
Section 2 of the law specifically provides for the
requisites: Section 4 expressly states:

“There must be a prior written notice to the school “If the hazing is held in the home of one of the officers or
authorities or head of organization seven (7) days before the members of the fraternity, group, or organization, the parents
conduct of such initiation. shall be held liable as principals when they have actual
knowledge of the hazing conducted therein but failed to take any
The written notice shall indicate: action to prevent the same from occurring.”

1. the period of the initiation activities which shall not exceed 1.07 MAY THE SCHOOL AUTHORITIES AND FACULTY
three (3) days, MEMBERS BE HELD LIABLE AS
2. shall include the names of those to be subjected to such ACCOMPLICES? (Sec.4)
activities, and
3. shall further contain an undertaking that no physical Yes, the school authorities and faculty members may be
violence be employed by anybody during such initiation held liable as accomplices subject to the following conditions:
rites.”
a. they consent to the hazing or who have actual
1.02 WHAT IS THE DUTY OF THE HEAD OF SCHOOL OR knowledge thereof;
ORGANIZATION WHEN THERE IS INITIATION
RITES? (Sec.3)
b. they failed to take any action to prevent the same from
occurring.
Under Section 3, when there is initiation rites, the
following duty is incumbent:
1.08 CAN THE FORMER OFFICERS AND ALUMNI BE
LIABLE AS PRINCIPALS EVEN IF THEY WERE
“The head of the school or organization or their representatives ABSENT DURING THE HAZING? (SEC.4)
must assign at least two (2) representatives of the school or
organization, as the case may be, to be present during the
initiation. Yes, as long as they actually planned the hazing.

It is the duty of such representative to see to it that no physical 1.09 WHEN MAY A FRATERNITY OR SORORITY'S
harm of any kind shall be inflicted upon a recruit, neophyte or ADVISER LIABLE AS PRINCIPAL? (Sec.4)
applicant.”
He is liable when he is present when the acts
1.03 WHO ARE LIABLE IF A PERSON DIES OR SUFFERS constituting the hazing were committed and failed to take action to
PHYSICAL INJURY DURING INITIATION RITES? prevent the same from occurring shall be liable as principal.
(Sec.4)
1.10 WHEN DOES THE PRIMA FACIE EVIDENCE OF
If the person subjected to hazing or other forms of PARTICIPATION AS PRINCIPAL ARISE? (Sec.4)
initiation rites suffers any physical injury or dies as a result thereof,
the officers and members of the fraternity, sorority or organization Section 4 clearly states when the prima facie evidence of
who actually participated in the infliction of physical harm shall be participation as principal arise. It states:
liable as principals.
“The presence of any person during the hazing is prima
1.04 MAY THE RESPONSIBLE OFFICIALS OF THE facie evidence of participation therein as principal unless he
SCHOOL OR OF THE POLICE, MILITARY OR prevented the commission of the acts punishable herein.”
CITIZEN'S ARMY TRAINING ORGANIZATION,
IMPOSE ADMINISTRATIVE SANCTIONS ON 1.11 MAY A PERSON CHARGED UNDER THIS
PERSONS CHARGED? (Sec.4) PROVISION BE ENTITLED TO THE MITIGATING
CIRCUMSTANCE OF NO INTENTION TO COMMIT
SO GRAVE A WRONG? (Sec.4)

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No. Section 4 provides: “Any person charged under NEW ANTI-CARNAPPING ACT OF 2012
this provision shall not be entitled to the mitigating circumstance
that there was no intention to commit so grave a wrong.”
1.00 DEFINE THE FOLLOWING TERMS:
ADDENDUM:
"Motor vehicle" is any vehicle propelled by any power
Dandy L. Dungo and Gregorio A. Sibal, Jr. vs. People of the other than muscular power using the public highways, but
Philippines, G.R. No. 209464, July 1, 2015 excepting road rollers, trolley cars, street-sweepers, sprinklers,
lawn mowers, bulldozers, graders, fork-lifts, amphibian trucks, and
cranes if not used on public highways, vehicles, which run only on
rails or tracks, and tractors, trailers and traction engines of all kinds
used exclusively for agricultural purposes.

Trailers having any number of wheels, when propelled or

intended to be propelled by attachment to a motor vehicle, shall be
classified as separate motor vehicle with no power rating.

1.01 WHAT IS THE CRIME OF CARNAPPING?

It is the taking, with intent to gain, of a motor vehicle

belonging to another without the latter's consent, or by means of
violence against or intimidation of persons, or by using force upon
things.

1.02 WHAT ARE THE ELEMENTS OF CARNAPPING?

The elements of carnapping are as follows:

1. That there is an actual taking of the vehicle;

2. That the offender intends to gain from the taking of the

vehicle;

3. That the vehicle belongs to a person other than the

offender himself;

4. That the taking is without the consent of the owner

thereof; or that the taking was committed by means of
violence against or intimidation of persons, or by using
force upon things. People Vs. Artemio Garcia Y Cruz,
Jr., et al. G.R. No. 138470, April 1, 2003.

1.03 WHEN IS UNLAWFULTAKING DEEMED

COMPLETE?

Unlawful taking is the taking of a vehicle without the

consent of the owner, or by means of violence against or
intimidation of persons, or by using force upon things; it is deemed
complete from the moment the offender gains possession of the
thing, even if he has no opportunity to dispose of the same. People
vs. Artemio Garcia Y Cruz, Jr., et al. G.R. No. 138470, April 1,
2003.

1.04 DOES THE PERSON DIVESTED OF THE MOTOR

VEHICLE NECESSARILY BE THE OWNER
THEREOF?

No. The settled rule is that, in crimes of unlawful taking of

property through intimidation or violence, it is not necessary that
the person unlawfully divested of the personal property be the
owner thereof. What is simply required is that the property taken
does not belong to the offender. Actual possession of the property
by the person dispossessed suffices. People Vs. Artemio Garcia Y
Cruz, Jr., et al. G.R. No. 138470, April 1, 2003.

1.05 DOES THE ELEMENT OF TAKING ABSORB THE

LOSS OF CASH OR OTHER
PERSONALPROPERTY?

No. Although carnapping and robbery have the same element of

taking with intent to gain, the former specifically refers to the
unlawful taking of a motor vehicle.only. People vs. Dela Cruz, GR
No. 174658,February 24, 2009.

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1.06 BAR Q. [2008] While Carlos was approaching his car, he that even if the nature of the appellant’s possession of the motor
saw it being driven away by Paolo, a thief. Carlos tried vehicle was initially lawful nevertheless, the unlawful killing of the
to stop Paolo by shouting at him, but Paolo ignored deceased for the purpose of taking the vehicle radically
him. To prevent his car from being carnapped, Carlos transformed the character of said possession into an unlawful one.
drew his gun, aimed at the rear wheel of the car and It ruled “It does not matter whether the unlawful taking
fired. The shot blew the tire which caused the car to occurred within the period of the lease. What is decisive here is the
veer out of control and collide with an oncoming purpose of appellant and his co-accused in killing the victim. Such
tricycle, killing the tricycle driver. x x x What is the is the vital point on which the crime and the nature thereof is to be
criminal liability of Paolo, if any? Explain. determined In this case. The duration of the lease of the vehicle has
Suggested Answer: Paolo is guilty of no bearing on the culpability of the appellant. x x x The
carnapping. There was an unlawful taking of a motor prosecution was able to establish that appellant and his co-accused
vehicle with intent to gain. Secondly, the car belonged to stabbed the victim to death because he refused to join them in their
another person. Lastly, the taking was without the plan to appropriate the vehicle. This undoubtedly satisfied the
consent of the Carlos, the owner. element of unlawful taking through violence, rendering appellant
liable for the crime charged”.
2.00 ON WHAT FACTORS MUST THE IMPOSITION OF
PENALTY IN CARNAPPING BE DEPENDENT? 3.00 DOCTRINE
(Section 14)
People vs. Arguelles
August 17, 2010
a. As a rule, when the carnapping is committed without
violence or intimidation of persons, or force upon things, R.A. 6539, otherwise known as An Act Preventing and
irrespective of the value of motor vehicle taken, the penalty shall Penalizing Carnapping, defines carnapping as the taking, with
be imprisonment for not less than fourteen years and eight months intent to gain, of a motor vehicle belonging to another without
and not more than seventeen years and four months. the latter’s consent, or by means of violence against or
intimidation of persons, or by using force upon things." More
b. On the other hand, when the carnapping is committed specifically, the elements of the crime are as follows:
by means of violence against or intimidation of any person, or
force upon things, the penalty shall be by imprisonment for not 1 .That there is an actual taking of the vehicle;
less than seventeen years and four months and not more than thirty
years. 2. That the offender intends to gain from the taking of
the vehicle;
2.01 WHEN IS CARNAPPING CONSIDERED QUALIFIED
OR IN AN AGGRAVATED FORM? 3. That the vehicle belongs to a person other than the
offender himself;

When the owner, driver or occupant of the carnapped 1. That the taking is without the consent of the owner
motor vehicle is killed in the commission of the carnapping, the thereof; or that the taking was committed by
penalty of life imprisonment to death shall be imposed *(Sec. 14. means of violence against or intimidation of
The penalty is now life imprisonment with the effectivity of the anti- persons, or by using force upon things.
death penalty law).
A careful examination of the evidence presented would
2.02 BAR Q. [2012] What should be the proper charge against show that all the elements of carnapping were proven in this
an offender who unlawfully took and carried away a case. It cannot be denied that the 1993 Nissan Sentra with plate
motor vehicle belonging to another without the latter's number TKR-837 was unlawfully taken from Agnes without her
consent, killing the driver in the process? consent and by means of force or intimidation, considering that
a. The proper charge against the offender should he and his co-accused
be murder with the use of motor vehicle. alternately poked a gun at Agnes. After shooting her, appellant
b. The proper charge against the offender should also flee with the subject vehicle which shows his intent to gain.
be qualified carnapping or carnapping in an Agnes also positively identified appellant and Gungon as the ones
aggravated form. (*The driver was killed who took the subject vehicle from her.
during the commission of carnapping. A
higher penalty is thus to be imposed).
c. The proper charge against the offender should
be carnapping and homicide.
d. The proper charge against the offender should
be robbery with homicide.

2.03 BAR Q.[1998] Samuel, a tricycle driver, plied his

usual route using a Honda motorcycle with a sidecar.
One evening, Raul rode on the sidecar, poked a knife
at Samuel and instructed him to go near the bridge.
Upon reaching the bridge, Raul alighted from the
motorcycle and suddenly stabbed Samuel several times
until he was dead. Raul fled from the scene taking the
motorcycle with him. What crime or crimes did Raul
commit?
SUGGESTED ANSWER: Raul committed
the crime of carnapping punished under by R.A. No. 6539.
Samuel, the driver of the vehicle, was killed in the course
of the commission of the crime. Under Section 14 thereof,
the killing serves to aggravate the crime by increasing the
penalty to be imposed on the offender.
2.04 CAN THERE BE UNLAWFUL TAKING OF A MOTOR
VEHICLE EVEN IF THE POSSESSION THEREOF IS
COVERED BY A LEASE AGREEMENT?

Yes. In the case of People vs. Artemio Garcia Y Cruz,

Jr., et al. G.R. No. 138470, April 1, 2003, the Supreme Court held

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ANTI-SEXUAL HARASSMENT ANTI=TRAFFICKING IN PERSONS IN ACT
ACT OF 1995

1.00 DEFINE TRAFFICKING IN PERSONS.

1.00 WHO MAY COMMIT SEXUAL HARASSMENT? Trafficking in Persons refers to the recruitment,
transportation, transfer or harboring, or receipt of persons with or
It is committed by an employer, employee, manager, without the victim's consent or knowledge, within or across
supervisor, agent of the employer, teacher, instructor, professor, national borders by means of threat or use of force, or other forms
coach, trainor, or any other person who, having authority, influence of coercion, abduction, fraud, deception, abuse of power or of
or moral ascendancy over another in a work or training or position, taking advantage of the vulnerability of the person, or, the
education environment, demands, requests or otherwise requires giving or receiving of payments or benefits to achieve the consent
any sexual favor from the other, regardless of whether the demand, of a person having control over another person for the purpose of
request or requirement for submission is accepted by the object of exploitation which includes at a minimum, the exploitation or the
said act (Sec.3). prostitution of others or other forms of sexual exploitation, forced
labor or services, slavery, servitude or the removal or sale of
1.01 WHO ELSE MAY BE LIABLE? organs.

Any person who directs or induces another to commit The recruitment, transportation, transfer, harboring or
any act of sexual harassment as herein defined, or who cooperates receipt of a child for the purpose of exploitation shall also be
in the commission thereof by another without which it would not considered as "trafficking in persons" even if it does not involve
have been committed, shall also be held liable under this Act any of the means set forth in the preceding paragraph.
(Sec.3).
1.01 DEFINE A CHILD UNDER THIS ACT.

JURISPRUDENTIAL DOCTRINES A child refers to a person below eighteen (18) years of age
or one who is over eighteen (18) but is unable to fully take care of
1. Dioscoro F. Bacsin vs. Eduardo O. Wahiman or protect himself/herself from abuse, neglect, cruelty, exploitation,
G.R. No. 146053 April 30, 2008 or discrimination because of a physical or mental disability or
condition.
Doctrine:
1.02 WHAT IS PROSTITUTION?
It is not necessary that the demand, request, or
requirement of a sexual favor be articulated in a categorical oral Prostitution refers to any act, transaction, scheme or design
or written statement. It may be discerned, with equal certitude, involving the use of a person by another, for sexual intercourse or
from the acts of the offender. lascivious conduct in exchange for money, profit or any other
consideration.
2. Ma. Lourdes T. Domingo vs.
Rogelio R. Rayala 1.03 WHAT IS FORCED LABOR AND SLAVERY?
G.R. No. 155831 February 18, 2008

Doctrine: They refer to the extraction of work or services from any

person by means of enticement, violence, intimidation or threat,
In prosecuting sexual harassment, it is not essential that the use of force or coercion, including deprivation of freedom, abuse
demand, request or requirement be made as a condition of authority or moral ascendancy, debt-bondage or deception.
for continued employment or for promotion to a higher
position. It is enough that the respondent’s acts result in 1.04 DEFINE SEXUAL EXPLOITATION.
creating an intimidating, hostile or offensive
environment for the employee. It refers to participation by a person in prostitution or the
production of pornographic materials as a result of being subjected
to a threat, deception, coercion, abduction, force, abuse of
authority, debt bondage, fraud or through abuse of a victim's
vulnerability.

1.05 WHAT ACTS CONSTITUTE “QUALIFIED

TRAFFICKING”?

The following are considered as qualified trafficking:

(a) When the trafficked person is a child;

(b) When the adoption is effected through Republic Act

No. 8043, otherwise known as the "Inter-Country Adoption Act of
1995" and said adoption is for the purpose of prostitution,
pornography, sexual exploitation, forced labor, slavery, involuntary
servitude or debt bondage;

1.06 BAR Q. [2012] When the adoption of a child is effected

under the Inter-Country Adoption Act for the purpose
of prostitution, what is the proper charge against the
offender who is a public officer in relation to the
exploitative purpose?
a. acts that promote trafficking in persons;
b. trafficking in persons;
c. qualified trafficking in persons;

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d. use of trafficked person. ANTI-VIOLENCE AGAINST WOMEN AND CHILDREN

(c) When the crime is committed by a syndicate, or in I. IN GENERAL

large scale-

c.1 When is Trafficking deemed committed by a 1.00 WHAT IS THE POLICY OF THE STATE WITH
syndicate? RESPECT TO THE DIGNITY OF WOMEN AND
CHILDREN?
If it carried out by a group of three (3) or more persons
conspiring or confederating with one another. The State values the dignity of women and children and
guarantees full respect for human rights. It also recognizes the need
c.2 When is Trafficking deemed committed in large to protect the family and its members particularly women and
scale? children, from violence and threats to their personal safety and
security.
If it committed against three (3) or more persons,
individually or as a group. PEOPLE VS. CABALQUINTO
G.R. No. 167693, September 19, 2006
(d) When the offender is an ascendant, parent, sibling, RULING: Taking all these opinions into account and in view of
guardian or a person who exercises authority over the trafficked recent enactments which unequivocally express the intention to
person or when the offense is committed by a public officer or maintain the confidentiality of information in cases involving
employee; violence against women and their children, in this case and
henceforth, the Court shall withhold the real name of the victim-
(e) When the trafficked person is recruited to engage in survivor and shall use fictitious initials instead to represent her.
prostitution with any member of the military or law enforcement Likewise, the personal circumstances of the victims-survivors or
agencies; any other information tending to establish or compromise their
identities, as well those of their immediate family or household
(f) When the offender is a member of the military or law members, shall not be disclosed.
enforcement agencies; and 1.01 DEFINE VIOLENCE AGAINST WOMEN AND THEIR
CHILDREN.
Section 3 of R.A. 9262 gives the definition of Violence against
(g) When by reason or on occasion of the act of women and children. It states:
trafficking in persons, the offended party dies, becomes insane,
suffers mutilation or is afflicted with Human Immunodeficiency
Virus (HIV) or the Acquired Immune Deficiency Syndrome “It refers to any act or a series of acts committed by any person
(AIDS).(Sec.6). against a woman who is his wife, former wife, or against a
woman with whom the person has or had a sexual or dating
relationship, or with whom he has a common child, or against
1.07 IS THE USE OF TRAFFICKED PERSONS her child whether legitimate or illegitimate, within or without the
PUNISHABLE? family abode, which result in or is likely to result in physical,
sexual, psychological harm or suffering, or economic abuse
Yes. Any person who buys or engages the services of including threats of such acts, battery, assault, coercion,
trafficked persons for prostitution shall be penalized (Sec.11). harassment or arbitrary deprivation of liberty. “

1.08 WHAT IS THE PRESCRIPTIVE PERIOD IN 1.02 WHAT ARE THE ACTS INCLUDED IN THE TERM
TRAFFICKING CASES? “VIOLENCE AGAINST WOMEN AND THEIR
CHILDREN” UNDER SECTION 3?
Trafficking cases under this Act shall prescribe in ten
(10) years: Provided, however, That trafficking cases committed by Section 3 states that violence against women and children
a syndicate or in a large scale shall prescribe in twenty (20) includes, but is not limited to, the following acts: a) Physical
years.(Sec.12) Violence b) Sexual violence c) Psychological violence d)
Economic abuse.
1.09 BAR Q.[2012] Conspiracy to commit felony is punishable
only in cases in which the law specifically provides a 1.03 WHAT IS "PHYSICAL VIOLENCE"?
penalty therefor. Under which of the following
instances are the conspirators not liable? It refers to acts that include bodily or physical harm;

a. Conspiracy to commit arson. 1.04 WHAT IS “SEXUAL VIOLENCE"?

b. Conspiracy to commit terrorism.
c. Conspiracy to commit child pornography.
d. Conspiracy to commit trafficking in persons. It refers to an act which is sexual in nature, committed
against a woman or her child. It includes, but is not limited to:

a) rape, sexual harassment, acts of lasciviousness,

treating a woman or her child as a sex object, making
demeaning and sexually suggestive remarks, physically
attacking the sexual parts of the victim's body, forcing
her/him to watch obscene publications and indecent
shows or forcing the woman or her child to do indecent
acts and/or make films thereof, forcing the wife and
mistress/lover to live in the conjugal home or sleep
together in the same room with the abuser;

b) acts causing or attempting to cause the victim to

engage in any sexual activity by force, threat of force,
physical or other harm or threat of physical or other harm
or coercion;
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c) Prostituting the woman or child. involved. Rustan Ang Y Pascua vs. Sagud, G.R. No. 182835, April
20, 2010
1.11 WHAT ARE THE ELEMENTS OF THE CRIME OF
1.05 WHAT IS "PSYCHOLOGICAL VIOLENCE"? VIOLENCE AGAINST WOMEN?
The elements of the crime of violence against women through
harassment are:
It refers to acts or omissions causing or likely to cause 1. The offender has or had a sexual or dating relationship
mental or emotional suffering of the victim such as but not limited with the offended woman;
to intimidation, harassment, stalking, damage to property, public 2. The offender, by himself or through another, commits an
ridicule or humiliation, repeated verbal abuse and mental infidelity. act or series of acts of harassment against the woman; and
It includes causing or allowing the victim to witness the physical, 3. The harassment alarms or causes substantial emotional or
sexual or psychological abuse of a member of the family to which psychological distress to her. Rustan Ang Y Pascua vs. Sagud,
the victim belongs, or to witness pornography in any form or to G.R. No. 182835, April 20, 2010
witness abusive injury to pets or to unlawful or unwanted 1.12 DOES A SINGLE ACT OF HARASSMENT ENOUGH
deprivation of the right to custody and/or visitation of common TO CONVICT AN OFFENDER?
children. Yes. Section 3(a) of R.A. 9262 punishes “any act or series of
acts” that constitutes violence against women. This means that a
1.06 WHAT IS "ECONOMIC ABUSE"? single act of harassment, which translates into violence, would be
enough. The object of the law is to protect women and children.
Punishing only violence that is repeatedly committed would license
It refers to acts that make or attempt to make a woman
isolated ones. Rustan Ang Y Pascua vs. Sagud, G.R. No. 182835,
financially dependent which includes, but is not limited to the
April 20, 2010
following:
1.13 MAY A TEMPORARY PROTECTION ORDER (TPO)
BE ISSUED IN FAVOR OF A MAN AGAINST HIS
1. withdrawal of financial support or preventing the WIFE?
victim from engaging in any legitimate profession, A TPO cannot be issued in favor of a man against his wife
occupation, business or activity, except in cases wherein under R.A. No. 9292, known as the Anti-Violence Against Women
the other spouse/partner objects on valid, serious and and Their Children Act of 2004.I
moral grounds as defined in Article 73 of the Family In one case, the judge was found guilty of gross ignorance of
Code; the law for issuing a Temporary Protection Order (TPO) in favor
of a male petitioner. Indeed, as a family court judge, the judge is
2. deprivation or threat of deprivation of financial expected to know the correct implementation of R.A. No. 9292.
resources and the right to the use and enjoyment of the See Sylvia Santo vs. Judge Arcaya-Chua, A.M. No. Rtj-07-2093,
conjugal, community or property owned in common; April 23, 2010
1.14 IS IT INDISPENSABLE THAT THE ACT OF
VIOLENCE BE A CONSEQUENCE OF THE DATING
3. destroying household property;
OR SEXUAL RELATIONSHIP?

4. controlling the victims' own money or properties or

This has been answered in this case-
solely controlling the conjugal money or properties.

Dabalos y San Diego vs. Paras Quiambao, et. al.

1.07 DEFINE “STALKING”.
G.R. No. 193960, January 7, 2013

It refers to an intentional act committed by a person ISSUE: Petitioner insists that the act which resulted in physical
who, knowingly and without lawful justification follows the injuries to private respondent is not covered by RA 9262 because
woman or her child or places the woman or her child under its proximate cause was not their dating relationship. Instead, he
surveillance directly or indirectly or a combination thereof. claims that the offense committed was only slight physical injuries
under the Revised Penal Code which falls under the jurisdiction of
1.08 EXPLAIN THE CONCEPT OF “DATING the Municipal Trial Court.
RELATIONSHIP”. RULING: The Court is not persuaded quoting Sec. 3(a) of RA
9262. The law is broad in scope but specifies two limiting
qualifications for any act or series of acts to be considered as a
It refers to a situation wherein the parties live as husband crime of violence against women through physical harm, namely:
and wife without the benefit of marriage or are romantically 1) it is committed against a woman or her child and the woman is
involved over time and on a continuing basis during the course of the offender’s wife, former wife, or with whom he has or had
the relationship. A casual acquaintance or ordinary socialization sexual or dating relationship or with whom he has a common child;
between two individuals in a business or social context is not a and 2) it results in or is likely to result in physical harm or
dating relationship. suffering.
Notably, while it is required that the offender has or had
1.09 EXPLAIN THE CONCEPT OF “SEXUAL RELATIONS”. a sexual or dating relationship with the offended woman, for RA
9262 to be applicable, it is not indispensable that the act of
It refers to a single sexual act which may or may not violence be a consequence of such relationship. Nowhere in the
result in the bearing of a common child. law can such limitation be inferred.
Hence, applying the rule on statutory construction that
when the law does not distinguish, neither should the courts, then,
1.10 DIFFERENTIATE “DATING RELATIONSHIP” FROM clearly, the punishable acts refer to all acts of violence against
“SEXUAL RELATIONS”. women with whom the offender has or had a sexual or dating
Sexual relations refer to a single sexual act which may relationship.
or may not result in the bearing of a common child. As correctly ruled by the RTC, it is immaterial whether
R.A. 9262 provides in Section 3 that “violence against the relationship had ceased for as long as there is sufficient
women x x x refers to any act or a series of acts committed by any evidence showing the past or present existence of such relationship
person against a woman x x x with whom the person has or had a between the offender and the victim when the physical harm was
sexual or dating relationship.” Clearly, the law itself distinguishes a committed. Dabalos Y San Diego vs. Judge Paras Quiambao, et
sexual relationship from a dating relationship. Indeed, Section 3(e) al., G.R. No. 193960, January 7, 2013
above defines “dating relationship” while Section 3(f) defines 1.15 WHAT IS BATTERY?
“sexual relations.” The latter “refers to a single sexual act which
may or may not result in the bearing of a common child.” The
dating relationship that the law contemplates can, therefore, exist It refers to an act of inflicting physical harm upon the woman or
even without a sexual intercourse taking place between those her child resulting to the physical and psychological or emotional

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distress. remember every detail. Her apparent passivity in the face of acute
violence may be rationalized thus: the batterer is almost always
1.16 WHAT IS THE CONCEPT OF A BATTERED WOMAN much stronger physically, and she knows from her past painful
SYNDROME? experience that it is futile to fight back. Acute battering incidents
are often very savage and out of control, such that innocent
bystanders or intervenors are likely to get
It refers to a scientifically defined pattern of hurt.http://sc.judiciary.gov.ph/jurisprudence/2004/jan2004/135981.
psychological and behavioral symptoms found in women living in htm - _ftn30
battering relationships as a result of cumulative abuse.
The final phase of the cycle of violence begins when the
1.17 IS A BATTERED WOMEN SYNDROME A PROPER acute battering incident ends. During this tranquil period, the
DEFENSE? couple experience profound relief. On the one hand, the batterer
may show a tender and nurturing behavior towards his partner. He
knows that he has been viciously cruel and tries to make up for it,
Yes. Battered Women Syndrome is a proper defense.
begging for her forgiveness and promising never to beat her
Section 26 of R.A. 9262 is explicit:
again. On the other hand, the battered woman also tries to
convince herself that the battery will never happen again; that her
“Victim-survivors who are found by the courts to be suffering partner will change for the better; and that this “good, gentle and
from battered woman syndrome do not incur any criminal and caring man” is the real person whom she loves.
civil liability notwithstanding the absence of any of the elements
for justifying circumstances of self-defense under the Revised A battered woman usually believes that she is the sole
Penal Code. anchor of the emotional stability of the batterer. Sensing his
isolation and despair, she feels responsible for his well-being. The
In the determination of the state of mind of the woman who was truth, though, is that the chances of his reforming, or seeking or
suffering from battered woman syndrome at the time of the receiving professional help, are very slim, especially if she remains
commission of the crime, the courts shall be assisted by expert with him. Generally, only after she leaves him does he seek
psychiatrists/ psychologists.” professional help as a way of getting her back. Yet, it is in this
phase of remorseful reconciliation that she is most thoroughly
tormented psychologically.
People vs. Genosa
G.R. No. 135981, January 15, 2004
Illustrative Cases
RULING:
1. BAR Q. [2011] A battered woman claiming self-defense
A battered woman has been defined as a woman “who is under the Anti-Violence against Women and Children must
repeatedly subjected to any forceful physical or psychological prove that the final acute battering episode was preceded by
behavior by a man in order to coerce her to do something he wants
her to do without concern for her rights. Battered women include A. 3 battering episodes.
wives or women in any form of intimate relationship with B. 4 battering episodes.
men. Furthermore, in order to be classified as a battered woman, C. 5 battering episodes.
the couple must go through the battering cycle at least twice. Any D. 2 battering episodes
woman may find herself in an abusive relationship with a man
once. If it occurs a second time, and she remains in the situation, 2. BAR Q. [2010] Jack and Jill have been married for seven
she is defined as a battered woman.” years. One night, Jack came home drunk. Finding no food on
the table, Jack started hitting Jill only to apologize the
Battered women exhibit common personality traits, such following day. A week later, the same episode occurred – Jack
as low self-esteem, traditional beliefs about the home, the family came home drunk and started hitting Jill. Fearing for her life,
and the female sex role; emotional dependence upon the dominant Jill left and stayed with her sister. To woo Jill back, Jack sent
male; the tendency to accept responsibility for the batterer’s actions; her floral arrangements of spotted lilies and confectioneries.
and false hopes that the relationship will Two days later, Jill returned home and decided to give Jack
improve.http://sc.judiciary.gov.ph/jurisprudence/2004/jan2004/135 another chance. After several days, however, Jack again came
981.htm - _ftn26 home drunk. The following day, he was found dead. Jill was
charged with parricide but raised the defense of “battered
More graphically, the battered woman syndrome is woman syndrome.”
characterized by the so-called “cycle of violence,” which has three
phases: (1) the tension-building phase; (2) the acute battering
A. Define “Battered Woman Syndrome.”
incident; and (3) the tranquil, loving (or, at least, nonviolent) phase.

During the tension-building phase, minor battering Suggested Answer: It refers to a scientifically defined
occurs -- it could be verbal or slight physical abuse or another form pattern of psychological and behavioral symptoms found in
of hostile behavior. The woman usually tries to pacify the batterer women living in battering relationships as a result of cumulative
through a show of kind, nurturing behavior; or by simply staying abuse.
out of his way. What actually happens is that she allows herself to
be abused in ways that, to her, are comparatively minor. All she B. What are the three phases of the “Battered Woman
wants is to prevent the escalation of the violence exhibited by the Syndrome”?
batterer. This wish, however, proves to be double-edged, because
her “placatory” and passive behavior legitimizes his belief that he
has the right to abuse her in the first place. Suggested Answer: The three phases are the following:
a) tension-building phase b) acute battering incident c) tranquil
The acute battering incident is said to be characterized and loving phase.
by brutality, destructiveness and, sometimes, death. The battered
woman deems this incident as unpredictable, yet also C. Would the defense prosper despite the absence of any of the
inevitable. During this phase, she has no control; only the batterer elements for justifying circumstances of self-defense under the
may put an end to the violence. Its nature can be as unpredictable Revised Penal Code?
as the time of its explosion, and so are his reasons for ending
it. The battered woman usually realizes that she cannot reason Suggested Answer:Yes, R.A. 9262 expressly states that
with him, and that resistance would only exacerbate her condition. victim-survivors who are found by the courts to be suffering from
battered woman syndrome do not incur any criminal and civil
At this stage, she has a sense of detachment from the liability notwithstanding the absence of any of the elements for
attack and the terrible pain, although she may later clearly
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justifying circumstances of self-defense under the Revised Penal the woman or her child. This shall include, but not be
Code. limited to, the following acts:

1.18 HOW MUST THE LAW BE CONSTRUED? (1) Stalking or following the woman or her child in
public or private places;
It shall be liberally construed to promote the protection and
safety of victims of violence against women and their children. (2) Peering in the window or lingering outside the
residence of the woman or her child;
1.19 UNDER SECTION 5 OF THE ACT, HOW IS THE
CRIME OF VIOLENCE AGAINST WOMEN AND (3) Entering or remaining in the dwelling or on the
CHILDREN COMMITTED? property of the woman or her child against her/his
will;
The acts constituting the crime of violence against women and
children are anumerated under Section 5 of R.A. 9262 which (4) Destroying the property and personal belongings
provides: or inflicting harm to animals or pets of the woman or
her child; and
“The crime of violence against women and their
children is committed through any of the following acts: (5) Engaging in any form of harassment or violence x
x x.”
(a) Causing physical harm to the woman or her child;
1.20 DIFFERENTIATE SECTION 3 (A) FROM SECTION 5
(b) Threatening to cause the woman or her child OF R.A. 9262.
physical harm; Section 3 (a) of R.A. 9262 provides that violence against
women includes an act or acts of a person against a woman with
whom he has or had a sexual or dating relationship while Section 5
(c) Attempting to cause the woman or her child physical identifies the act or acts that constitute violence against women and
harm; these include any form of harassment that causes substantial
emotional or psychological distress to a woman.
(d) Placing the woman or her child in fear of imminent 1.21 MAY THE ABUSES BE COMMITTED BY ANOTHER
physical harm; THRU CONSPIRACY?

(e) Attempting to compel or compelling the woman or Yes the principle of conspiracy is applicable.This is
her child to engage in conduct which the woman or her enunciated in the case of-
child has the right to desist from or desist from conduct
which the woman or her child has the right to engage Sharica Mari L. Go-Tan vs. Spouses Tan
in, or attempting to restrict or restricting the woman's or G.R. No. 168852: September 30, 2008
her child's freedom of movement or conduct by force or
threat of force, physical or other harm or threat of
physical or other harm, or intimidation directed against FACTS: Sharica Go-Tan, married to Steven Tan, filed a Petition
the woman or child. This shall include, but not limited with Prayer for the Issuance of a Temporary Protective Order
to, the following acts committed with the purpose or against Steven and her parents-in-law, Spouses Perfecto C. Tan and
effect of controlling or restricting the woman's or her Juanita L. Tan. She alleged that Steven, in conspiracy with her
child's movement or conduct: parents-in-law, was causing verbal, psychological and economic
abuses upon her.

(1) Threatening to deprive or actually depriving the

woman or her child of custody to her/his family; ISSUE: Whether or not Sharica’s parents-in-law may be included
in the petition for the issuance of a protection order.

(2) Depriving or threatening to deprive the woman or

her children of financial support legally due her or her RULING: While the said provision provides that the offender be
family, or deliberately providing the woman's children related or connected to the victim by marriage, former marriage, or
insufficient financial support; a sexual or dating relationship, it does not preclude the application
of the principle of conspiracy under the RPC.

(3) Depriving or threatening to deprive the woman or In Ladonga v. People, the Court applied suppletorily the
her child of a legal right; principle of conspiracy under Article 8 of the RPC to B.P. Blg. 22
in the absence of a contrary provision therein. With more reason,
(4) Preventing the woman in engaging in any therefore, the principle of conspiracy under Article 8 of the RPC
legitimate profession, occupation, business or activity may be applied suppletorily to R.A. No. 9262 because of the
or controlling the victim's own mon4ey or properties, express provision of Section 47 that the RPC shall be
or solely controlling the conjugal or common money, supplementary to said law. Thus, general provisions of the RPC,
or properties; which by their nature, are necessarily applicable, may be applied
suppletorily. Thus, the principle of conspiracy may be applied to
R.A. No. 9262. For once conspiracy or action in concert to achieve
(f) Inflicting or threatening to inflict physical harm on
a criminal design is shown, the act of one is the act of all the
oneself for the purpose of controlling her actions or
conspirators, and the precise extent or modality of participation of
decisions;
each of them becomes secondary, since all the conspirators are
principals.
(g) Causing or attempting to cause the woman or her It must be further noted that Section 5 of R.A. No. 9262
child to engage in any sexual activity which does not expressly recognizes that the acts of violence against women and
constitute rape, by force or threat of force, physical their children may be committed by an offender through another,
harm, or through intimidation directed against the thus: SEC. 5. Acts of Violence Against Women and
woman or her child or her/his immediate family; Their Children. - The crime of violence against women and their
children is committed through any of the following acts: x x x (h)
(h) Engaging in purposeful, knowing, or reckless Engaging in purposeful, knowing, or reckless conduct, personally
conduct, personally or through another that alarms or or through another, that alarms or causes substantial emotional or
causes substantial emotional or psychological distress to psychological distress to the woman or her child. This shall

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include, but not be limited to, the following acts: (1) Stalking or (a) Prohibition of the respondent from threatening to commit or
following the woman or her child in public or private places; (2) committing, personally or through another, any of the acts
Peering in the window or lingering outside the residence of the mentioned in Section 5 of this Act;
woman or her child; (3) Entering or remaining in the dwelling or
on the property of the woman or her child against her/his will; (4) (b) Prohibition of the respondent from harassing, annoying,
Destroying the property and personal belongings or inflicting harm telephoning, contacting or otherwise communicating with
to animals or pets of the woman or her child; and (5) Engaging in the petitioner, directly or indirectly;
any form of harassment or violence; x x x. (Emphasis supplied)
(i) Causing mental or emotional anguish, public ridicule or
humiliation to the woman or her child, including, but not limited (c) Removal and exclusion of the respondent from the residence
to, repeated verbal and emotional abuse, and denial of financial of the petitioner, regardless of ownership of the residence,
support or custody of minor children of access to the woman's either temporarily for the purpose of protecting the
child/children. petitioner, or permanently where no property rights are
violated, and if respondent must remove personal effects
from the residence, the court shall direct a law enforcement
1.22 WHAT ARE THE PRESCRIPTIVE PERIODS OF ACTS agent to accompany the respondent has gathered his things
PUNISHABLE UNDER THIS LAW? and escort respondent from the residence;

Acts falling under Sections 5(a) to 5(f) shall prescribe in twenty (d) Directing the respondent to stay away from petitioner and
(20) years. Acts falling under Sections 5(g) to 5(I) shall prescribe designated family or household member at a distance
in ten (10) years. specified by the court, and to stay away from the residence,
school, place of employment, or any specified place
1.23 HOW IS THE CRIME OF VIOLENCE AGAINST frequented by the petitioner and any designated family or
WOMEN AND CHILDREN CLASSIFIED? household member;

Violence against women and their children shall be considered (e) Directing lawful possession and use by petitioner of an
a public offense which may be prosecuted upon the filing of a automobile and other essential personal effects, regardless
complaint by any citizen having personal knowledge of the of ownership, and directing the appropriate law
circumstances involving the commission of the crime. enforcement officer to accompany the petitioner to the
residence of the parties to ensure that the petitioner is safely
1.24 IS BEING UNDER THE INFLUENCE OF ALCOHOL restored to the possession of the automobile and other
OR ANY ILLICIT DRUG A PROPER DEFENSE IN essential personal effects, or to supervise the petitioner's or
THE PROSECUTION OF THE OFFENSE? respondent's removal of personal belongings;

Under express provision of Section 27 thereof, being under the (f) Granting a temporary or permanent custody of a
influence of alcohol, any illicit drug, or any other mind-altering child/children to the petitioner;
substance shall not be a defense under this Act.
(g) Directing the respondent to provide support to the woman
1.25 DOES THE REVISED PENAL CODE HAVE and/or her child if entitled to legal support. Notwithstanding
SUPPLETORY APPLICATION UNDER THIS ACT? other laws to the contrary, the court shall order an appropriate
percentage of the income or salary of the respondent to be
withheld regularly by the respondent's employer for the same to
Yes. For purposes of this Act, the Revised Penal Code and other be automatically remitted directly to the woman. Failure to remit
applicable laws, shall have suppletory application. and/or withhold or any delay in the remittance of support to the
woman and/or her child without justifiable cause shall render
II. PROTECTION ORDERS the respondent or his employer liable for indirect contempt of
court;
3.00 DEFINE PROTECTION ORDER UNDER THIS ACT.
(h) Prohibition of the respondent from any use or possession of
any firearm or deadly weapon and order him to surrender the
A protection order is an order issued under this act for the
same to the court for appropriate disposition by the court,
purpose of preventing further acts of violence against a woman or
including revocation of license and disqualification to apply for
her child specified in Section 5 of this Act and granting other
any license to use or possess a firearm. If the offender is a law
necessary relief.
enforcement agent, the court shall order the offender to
surrender his firearm and shall direct the appropriate authority
3.01 WHAT IS THE IMPORTANCE OF THE PROTECTION to investigate on the offender and take appropriate action on
ORDER? matter;

The relief granted under a protection order serve the purpose of (i) Restitution for actual damages caused by the violence
safeguarding the victim from further harm, minimizing any inflicted, including, but not limited to, property damage, medical
disruption in the victim's daily life, and facilitating the opportunity expenses, childcare expenses and loss of income;
and ability of the victim to independently regain control over her
life. The provisions of the protection order shall be enforced by law
(j) Directing the DSWD or any appropriate agency to provide
enforcement agencies.
petitioner may need; and

3.02 ENUMERATE THE PROTECTION ORDERS THAT

(k) Provision of such other forms of relief as the court deems
MAY BE ISSUED UNDER THIS LAW.
necessary to protect and provide for the safety of the petitioner
and any designated family or household member, provided
The protection orders that may be issued are the barangay petitioner and any designated family or household member
protection order (BPO), temporary protection order (TPO) and consents to such relief.
permanent protection order (PPO).
Any of the reliefs provided under this section shall be granted
Section 8 provides: even in the absence of a decree of legal separation or annulment
or declaration of absolute nullity of marriage.
“The protection orders that may be issued under this Act shall
include any, some or all of the following reliefs: The issuance of a BPO or the pendency of an application for
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BPO shall not preclude a petitioner from applying for, or the (k) Requiring the respondent to receive professional
court from granting a TPO or PPO.” counseling from agencies or persons who have
demonstrated expertise and experience in anger
3.03 WHAT ARE THE RELIEFS AVAILABLE TO THE control, management of alcohol, substance abuse and
OFFENDED PARTY? (SEC.11) other forms of intervention to stop violence. The
program of intervention for offenders must be
approved by the court. The agency or person is
Section 11 of R.A. 9262 provides for the reliefs available
required to provide the court with regular reports of
to the offended party. It states:
the progress and result of professional counseling, for
which the respondent may be ordered to pay; and
“The protection order shall include any, some or all of the (l) Awarding the offended party actual damages caused by
following reliefs: the violence inflicted, including, but not limited to,
property damage, medical expanses, childcare
(a) Prohibiting the respondent from threatening to commit expenses and loss of income; and compensatory,
or committing, personally or through another, acts of moral, and exemplary damages, subject to Sections 26a
violence against the offended party; and 35 of this Rule.
(b) Prohibiting the respondent from harassing, annoying,
telephoning, contacting or otherwise communicating in The court may grant such other forms of relief to
any form with the offended party, either directly or protect the offended party and any designated family or
indirectly; household member who consents to such relief.”
(c) Removing and excluding the respondent from the
residence of the offended party, regardless of A] BARANGAY PROTECTION ORDER
ownership of the residence, either temporally for the
purpose of protecting the offended party, or 4.00 DISCUSS BARANGAY PROTECTION ORDERS (BPOs)
permanently where no property rights are violated. If
the respondent must remove personal effects from the
residence, the court shall direct a law enforcement Barangay Protection Orders (BPOs) refer to the
agent to accompany the respondent to the residence, protection order issued by the Punong Barangay ordering the
remain there until the respondent has gathered his perpetrator to desist from committing acts under Section 5 (a) and
things and escort him from the residence; (b) of this Act.”
(d) Requiring the respondent to stay away from the
offended party and any designated family or household 5.00 DISCUSS TEMPORARY PROTECTION ORDERS (TPOs)
member at a distance specified by the court;
(e) Requiring the respondent to stay away from the Temporary Protection Orders (TPOs) refer to the protection
residence, school, place of employment or any specified order issued by the court on the date of filing of the application
place frequented regularly by the offended party and after ex parte determination that such order should be issued. A
any designated family or household member; court may grant in a TPO any, some or all of the reliefs mentioned
(f) Directing lawful possession and use by the offended in this Act and shall be effective for thirty (30) days.
party of an automobile and other essential personal
effects, regardless of ownership, and directing the
appropriate law enforcement officer to accompany the 5.01 DISCUSS PERMANENT PROTECTION ORDERS (PPOs)
offended party to the residence of the parties to ensure
that the offended party is safely restored to the Permanent Protection Order (PPO) refers to protection
possession of the automobile and other essential order issued by the court after notice and hearing.
personal effects;
(g) Ordering temporary or permanent custody of the
5.02 WHAT ARE THE PROHIBITED ACTS IN THE
child/children with the offended party, taking into
APPLICATION FOR A PROTECTION ORDER?
consideration the best interests of the child. An
offended party who is suffering from Battered Woman
Syndrome shall not be disqualified from having “A Punong Barangay, Barangay Kagawad or the court hearing
custody of her children. In no case shall custody of an application for a protection order shall not order, direct, force
minor children be given to the batterer of a woman or in any way unduly influence the applicant for a protection
who is suffering from Battered Woman Syndrome; order to compromise or abandon any of the reliefs sought in the
(h) Directing the respondent to provide support to the application for protection under this Act. Section 7 of the Family
woman and/or her child, if entitled to legal import. Courts Act of 1997 and Sections 410, 411, 412 and 413 of the
Notwithstanding other laws to the contrary, the court Local Government Code of 1991 shall not apply in proceedings
shall order an appropriate percentage of the income or where relief is sought under this Act.
salary of the respondent to be withheld regularly by his
employer and to automatically remit it directly to the Failure to comply with this Section shall render the official or
offended party. Failure to withhold, remit or any delay judge administratively liable.”
in the remittance of support to the offended party
without justifiable cause shall render the respondent or
his employer liable for indirect contempt of court;
(i) Prohibiting the respondent from carrying or possessing
any firearm or deadly weapon and ordering him to
surrender the same to the court for appropriate
disposition, including revocation of license and
disqualification to apply for any license to carry or
possess a firearm. If the respondent is .a law
enforcement agent, the court shall order him to
surrender his firearm and shall direct the appropriate
authority to investigate him and take appropriate
action thereon;
(j) Directing the DSWD or any appropriate agency to
prepare a program of intervention for the offended
party that provides advocacy, temporary shelter, crisis
intervention, treatment, therapy, counseling,
education, training and other social services that the
offended party may need;

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ANTI-CHILD AND PORNOGRAPHY ACT activities. What is Mr. P's criminal liability, if
any?
1.00 DEFINE "CHILD PORNOGRAPHY".
A. Corruption of minors under the Penal Code
B. Violation of the Child Pornography Act
It refers to any representation, whether visual, audio, or C. Violation of the Child Abuse Law
written combination thereof, by electronic, mechanical, digital, D. None
optical, magnetic or any other means, of child engaged or involved
in real or simulated explicit sexual activities.
1.04 WHEN IS A CRIME CONSIDERED AS “SYNDICATED
CHILD PORNOGRAPHY”? (Sec.5)
1.01 DEFINE "INTERNET ADDRESS".
The crime of child pornography is deemed committed by
It refers to a website, bulletin board service, internet chat a syndicate if carried out by a group of three (3) or more persons
room or news group, or any other internet or shared network conspiring or confederating with one another.
protocol address.
-oooOOOooo-
1.02 WHAT ARE THE UNLAWFUL OR PROHIBITED
ACTS ENUMERATED UNDER THE LAW? (Sec.4) CHAPTER IX. THE ANTI-PHOTO AND VIDEO
VOYEURISM ACT OF 2009
The following are the unlawful or prohibited acts: Republic Act No. 9995
___________________________________________________
(a) To hire, employ, use, persuade, induce or coerce a
child to perform in the creation or production of any 1.00 DEFINE "BROADCAST".
form of child pornography;
It means to make public, by any means, a visual image
(b) To produce, direct, manufacture or create any form of with the intent that it be viewed by a person or persons.
child pornography;
1.01 DEFINE "CAPTURE".
(c) To publish offer, transmit, sell, distribute, broadcast,
advertise, promote, export or import any form of child With respect to an image, it means to videotape,
pornography; photograph, film, record by any means, or broadcast.

(d) To possess any form of child pornography with the 1.02 DEFINE "PHOTO OR VIDEO VOYEURISM ".
intent to sell, distribute, publish, or broadcast: Provided.
That possession of three (3) or more articles of child
pornography of the same form shall be prima facie It means the act of taking photo or video coverage of a
evidence of the intent to sell, distribute, publish or person or group of persons performing sexual act or any similar
broadcast; activity or of capturing an image of the private area of a person or
persons without the latter's consent, under circumstances in which
such person/s has/have a reasonable expectation of privacy, or the
(e) To knowingly, willfully and intentionally provide a act of selling, copying, reproducing, broadcasting, sharing,
venue for the commission of prohibited acts as, but not showing or exhibiting the photo or video coverage or recordings of
limited to, dens, private rooms, cubicles, cinemas, houses such sexual act or similar activity through VCD/DVD, internet,
or in establishments purporting to be a legitimate cellular phones and similar means or device without the written
business; consent of the person/s involved, notwithstanding that consent to
record or take photo or video coverage of same was given by such
(f) For film distributors, theaters and telecommunication person.
companies, by themselves or in cooperation with other
entities, to distribute any form of child pornography; 1.03 DEFINE "UNDER CIRCUMSTANCES IN WHICH A
PERSON HAS A REASONABLE EXPECTATION OF
(g) For a parent, legal guardian or person having custody PRIVACY".
or control of a child to knowingly permit the child to
engage, participate or assist in any form of child It means believe that he/she could disrobe in privacy,
pornography; without being concerned that an image or a private area of the
person was being captured; or circumstances in which a reasonable
(h) To engage in the luring or grooming of a child; person would believe that a private area of the person would not be
visible to the public, regardless of whether that person is in a public
(i) To engage in pandering of any form of child or private place.
pornography;
1.04 WHAT ARE THE PROHIBITED ACTS ENUMERATED
(j) To willfully access any form of child pornography; UNDER SECTION 4?

(k) To conspire to commit any of the prohibited acts It is prohibited and declared unlawful for any person:
stated in this section. Conspiracy to commit any form of
child pornography shall be committed when two (2) or (a) To take photo or video coverage of a person
more persons come to an agreement concerning the or group of persons performing sexual act or any similar
commission of any of the said prohibited acts and decide activity or to capture an image of the private area of a
to commit it; and person/s such as the naked or undergarment clad genitals,
public area, buttocks or female breast without the consent
(l) To possess any form of child pornography. of the person/s involved and under circumstances in
which the person/s has/have a reasonable expectation of
privacy;
1.03 BAR Q. [2011] Mr. P owns a boarding house
where he knowingly allowed children to be
videotaped while simulating explicit sexual (b) To copy or reproduce, or to cause to be
copied or reproduced, such photo or video or recording

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of sexual act or any similar activity with or without ANTI-CHILD ABUSE LAW
consideration;
1.00 DEFINE CHILDREN UNDER THIS ACT. (Section 3)
(c) To sell or distribute, or cause to be sold or
distributed, such photo or video or recording of sexual "Children" refers to person below eighteen (18) years of
act, whether it be the original copy or reproduction age or those over but are unable to fully take care of themselves or
thereof; or protect themselves from abuse, neglect, cruelty, exploitation or
discrimination because of a physical or mental disability or
(d) To publish or broadcast, or cause to be condition.
published or broadcast, whether in print or broadcast
media, or show or exhibit the photo or video coverage or 1.01 WHAT IS THE DEFINITION OF A “CHILD” UNDER
recordings of such sexual act or any similar activity THE IMPLEMENTING RULES OF THIS LAW?
through VCD/DVD, internet, cellular phones and other A mere allegation that the children are unable to fully
similar means or device. take care of themselves or protect themselves from abuse, neglect,
cruelty, exploitation or discrimination because of a physical or
1.05 IS CONSENT TO RECORD OR TAKE PHOTO OR mental disability or condition is not sufficient.
VIDEO COVERAGE CONSTITUTES AS AN The implementing rules elaborated on this definition
EXCEPTION TO THE PROHIBITION UNDER when it defined a "child" as one who is below 18 years of age or
PARAGRAPHS (B), (C) AND (D)? over said age who, upon evaluation of a qualified physician,
psychologist or psychiatrist, is found to be incapable of taking
No. The prohibition shall apply notwithstanding that care of herself fully because of a physical or mental disability or
consent to record or take photo or video coverage of the same was condition or of protecting herself from abuse. People v. Abello, 582
given by such person/s. Any person who violates this provision SCRA 378, March 25, 2009
shall be liable (Sec.4).
1.02 DEFINE “CHILD ABUSE”.
1.06 WHO IS EXEMPTED FROM THE COVERAGE OF
THE LAW? Child abuse is defined under Section 3 (b) of R. A. 7610
as:
Any peace officer, who is authorized by a written order
of the court, to use the record or any copy thereof as evidence in "Child abuse" refers to the maltreatment, whether
any civil, criminal investigation or trial of the crime of photo or habitual or not, of the child which includes any of the
video voyeurism. following:

1.07 IF ANY RECORD, PHOTO OR VIDEO, OR COPY (1) Psychological and physical abuse, neglect, cruelty,
THEREOF IS OBTAINED IN VIOLATION OF THIS sexual abuse and emotional maltreatment;
LAW, WILL IT BE ADMISSIBLE IN EVIDENCE?
(2) Any act by deeds or words which debases,
No. It is inadmissible in any judicial, quasi-judicial, degrades or demeans the intrinsic worth and dignity of a child
legislative or administrative hearing or investigation (Sec.7). as a human being;

1.08 MODIFIED BAR Q. [2010] A widower of ten years, (3) Unreasonable deprivation of his basic needs for
septuagenarian Canuto felt that he had license to survival, such as food and shelter; or
engage in voyeurism. If not peeping into his neighbors’
rooms through his powerful single-cylinder telescope, (4) Failure to immediately give medical treatment to
he would trail young, shapely damsels along the an injured child resulting in serious impairment of his growth
hallways of shopping malls. While going up the and development or in his permanent incapacity or death.
escalator, he stayed a step behind a mini-skirted one,
and in a moment of excitement, put his hand on her left
hip and massaged it. The damsel screamed and hollered 1.03 MUST SEXUAL ABUSE BE HABITUAL?
for help. Canuto was apprehended and brought up on No, it is inconsequential that the sexual abuse occurred
inquest. May he be liable for violation of R.A. 9995? only once. As expressly provided in Section 3(b) of R.A. 7610, the
abuse may be habitual or not. It must be observed that Article III of
R.A. 7610 is captioned as “Child Prostitution and Other Sexual
Suggested Answer: No, the acts committed by Canuto do Abuse” because Congress really intended to cover a situation
not fall under the definition of voyeurism nor under the prohibited where the minor may have been coerced or intimidated into
acts enumerated under Section 4 of the Anti- Photo and Video lascivious conduct, not necessarily for money or profit. The law
Voyeurism Act of 2009. covers not only child prostitution but also other forms of sexual
abuse.
There was no taking photo or video coverage of a
person performing sexual act or any similar activity or of 1.04 MUST PHYSICAL ABUSE BE HABITUAL?
capturing an image of the private area of a person under
circumstances in which such person has a reasonable expectation No. As defined in the law, child abuse includes physical
of privacy, nor there was an act of selling, copying, reproducing, abuse of the child, whether the same is habitual or not. 588 SCRA
broadcasting, sharing, showing or exhibiting the photo or video 747, June 5, 2009
coverage or recordings of sexual act or similar activity through
internet, cellular phones and similar means or device. 1.05 WHAT DOES THE PHRASE "CIRCUMSTANCES
WHICH GRAVELY THREATEN OR ENDANGER
If at all, he committed acts of lasciviousness, as THE SURVIVAL AND NORMAL DEVELOPMENT OF
obviously, the element of lewdness is present in this case. CHILDREN" INCLUDE?

Circumstances which gravely threaten or endanger the

survival and normal development of children" include, but are not
limited to, the following;

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(1) Being in a community where there is armed conflict or being (3) Taking advantage of influence or relationship to
affected by armed conflict-related activities; procure a child as prostitute;

(2) Working under conditions hazardous to life, safety and normal (4) Threatening or using violence towards a child to
which unduly interfere with their normal development; engage him as a prostitute; or

(3) Living in or fending for themselves in the streets of urban or (5) Giving monetary consideration goods or other
rural areas without the care of parents or a guardian or basic pecuniary benefit to a child with intent to engage such child in
services needed for a good quality of life; prostitution.”

(4) Being a member of a indigenous cultural community and/or 2.02 ACTS ARE ESSENTIALLY PUNISHED UNDER
living under conditions of extreme poverty or in an area which is PARAGRAPH 5 (A) OF RA NO. 7610?
underdeveloped and/or lacks or has inadequate access to basic
services needed for a good quality of life; Said paragraph essentially punishes acts pertaining to or
connected with child prostitution. In other words, under paragraph
(5) Being a victim of a man-made or natural disaster or calamity; (a), the child is abused primarily for profit.
or In the aforesaid case, the act of appellant in convincing
AAA, who was 12 years old at that time, to go with her and
thereafter, offer her for sex to a man in exchange for money makes
(6) Circumstances analogous to those abovestated which endanger her liable under paragraph 5(a) of R.A. No. 7610. People vs.
the life, safety or normal development of children. Dulay, 681 SCRA 638(2012)

1.06 WHAT DOES “COMPREHENSIVE PROGRAM 2.03 WHAT ARE THE ELEMENTS OF PARAGRAPH 5 (a)
AGAINST CHILD ABUSE, EXPLOITATION AND of RA 7610?
DISCRIMINATION" REFER TO? The elements of paragraph 5 (a) of R.A. 7610 are the
following:
Comprehensive program against child abuse, exploitation 1. the accused engages in, promotes, facilitates or induces
and discrimination" refers to the coordinated program of services child prostitution;
and facilities to protected children against: 2. the act is done through, but not limited to, the following
means:
a. acting as a procurer of a child prostitute;
(1) Child Prostitution and other sexual abuse; b. inducing a person to be a client of a child prostitute by
means of written or oral advertisements or other similar
(2) Child trafficking; means;
c. taking advantage of influence or relationship to
procure a child as a prostitute;
(3) Obscene publications and indecent shows;
d. threatening or using violence towards a child to
engage him as a prostitute; or
(4) Other acts of abuses; and e. giving monetary consideration, goods or other
pecuniary benefit to a child with intent to engage such
(5) Circumstances which threaten or endanger child in prostitution;
the survival and normal development of 3. the child is exploited or intended to be exploited in
children. prostitution; and
4. the child, whether male or female, is below 18 years of
age. People vs. Dulay, 681 SCRA 638(2012)
2.00 DEFINE CHILD PROSTITUTION AND OTHER
SEXUAL ABUSE.
2.04 ON THE OTHER HAND, WHAT ACTS ARE
PUNISHED UNDER SECTION 5 (B) OF R.A.
Article III Section 5 defines Child Prostitution and Other
7610?
Sexual Abuse as:

Section 5 (b) of Article III of R.A. 7610

“Children, whether male or female, who for money,
punishes:
profit, or any other consideration or due to the coercion or
influence of any adult, syndicate or group, indulge in sexual
intercourse or lascivious conduct, are deemed to be children “(b) Those who commit the act of sexual intercourse of
exploited in prostitution and other sexual abuse. lascivious conduct with a child exploited in prostitution or
subject to other sexual abuse; Provided, That when the victims is
under twelve (12) years of age, the perpetrators shall be
2.01 WHAT ACTS ARE PUNISHED UNDER
prosecuted under Article 335, paragraph 3, for rape and Article
SECTION 5(A) OF ARTICLE III, CHILD
336 of Act No. 3815, as amended, the Revised Penal Code, for
PROSTITUTION AND OTHER SEXUAL
rape or lascivious conduct, as the case may be: Provided, That
ABUSE UNDER R.A. 7610?
the penalty for lascivious conduct when the victim is under
twelve (12) years of age shall be reclusion temporal in its
Section 5 (a) of Article III provides: medium period x x x”

“The penalty of reclusion temporal in its medium 2.05 WHAT ARE THE ELEMENTS OF SEXUAL ABUSE
period to reclusion perpetua shall be imposed upon the DEFINED UNDER SECTION 5(B) OF THIS LAW?
following: The Court in Navarrete v. People, 513 SCRA 509 (2007),
held that sexual abuse under Section 5(b) has three elements:
(a) Those who engage in or promote, facilitate or induce child (1) the accused commits an act of sexual intercourse or
prostitution which include, but are not limited to, the following: lascivious conduct;
(2) the said act is performed with a child exploited in
prostitution or subjected to other sexual abuse; and
(1) Acting as a procurer of a child prostitute; (3) the child is below 18 years old.
2.06 THE LAW USES THE TERM A CHILD “SUBJECT TO
(2) Inducing a person to be a client of a child prostitute SEXUAL ABUSE”. WHEN IS A CHILD DEEMED
by means of written or oral advertisements or other similar SUBJECTED TO “OTHER SEXUAL ABUSE”?
means;
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1. A child is deemed subjected to other sexual abuse subject of a separate information. Lavides vs. Court of Appeals,
when the child indulges in lascivious conduct under 324 SCRA 321 [2001]
the coercion or influence of any adult. R.A. 7610
2.09 IN A CASE WHERE A CHILD IS EXPLOITED IN
covers not only child prostitution but also other
PROSTITUTION, IS A MERE ALLEGATION THAT
forms of sexual abuse. Olivarez vs. Court of COMPLAINANT HAD GIVEN “CONSENT”, A
Appeals, 465 SCRA 465(2005) PROPER DEFENSE?
No. In People vs. Dulay, 681 SC,RA 638(2012), the
2. The Court has ruled that a child is deemed subject to Court held that a child exploited in prostitution may seem to
other sexual abuse when the child is the victim of “consent” to what is being done to her or him and may appear not
lascivious conduct under the coercion or influence to complain.
of any adult. In lascivious conduct under the However, it further emphasized that a child who is “a
person below eighteen years of age or those unable to fully take
coercion or influence of any adult, there must be
care of themselves or protect themselves from abuse, neglect,
some form of compulsion equivalent to intimidation cruelty, exploitation or discrimination because of their age or
which subdues the free exercise of the offended mental disability or condition” is incapable of giving rational
party’s free will. Jojit Garingarao vs. People, G.R. consent to any lascivious act or sexual intercourse.
No. 192760, July 20, 2011
2.10 ON THE OTHER HAND, FOR CONSENSUAL SEXUAL
3. In the case of Navarrete vs. People, 513 SCRA INTERCOURSE OR LASCIVIOUS CONDUCT
509(2007), the Supreme Court ruled that petitioner’s WITH A MINOR, WHO IS NOT EXPLOITED IN
PROSTITUTION, TO FALL WITHIN THE
argument is untenable. The Court emphasized the
PURVIEW OF SECTION 5(B) OF R.A. NO. 7610,
principle In People v. Larin (and reiterated in WHAT MUST BE PRESENT?
several subsequent cases), that the law covers not
only a situation in which a child is abused for profit In People v. Court of Appeals, 562 SCRA 619, August 20,
but also one in which a child, through coercion or 2008, the Supreme Court succinctly held:
intimidation, engages in any lascivious conduct. It “For consensual sexual intercourse or lascivious conduct with a
went on to say that he very title of Section 5, Article minor, who is not exploited in prostitution, to thus fall within the
purview of Section 5(b) of R.A. No. 7610, “persuasion,
III (Child Prostitution and Other Sexual Abuse) of
inducement, enticement or coercion” of the child must be
RA 7610 shows that it applies not only to a child present.”
subjected to prostitution but also to a child subjected In the case at bar, even if the accused were charged under
to other sexual abuse. A child is deemed subjected Section 5(b), instead of Section 10(a), he would just the same have
to “other sexual abuse” when he or she indulges in been acquitted as there was no allegation that an element of the
lascivious conduct under the coercion or influence offense – coercion or influence or intimidation – attended its
of any adult. Here, BBB was sexually abused commission.
because she was coerced or intimidated by 2.11 CAN A PERSON BE CHARGED OF COMMITTING AN
petitioner (who poked her neck with a knife) to ACT PUNISHED UNDER SECTION 5(B) AND RAPE
indulge in lascivious conduct. AT THE SAME TIME?
Under Section 5(b), Article III of Republic Act (RA) 7610
4. In addition, such “other sexual abuse” could fall in relation to RA 8353, if the victim of sexual abuse is below 12
under acts encompassing “[O]bscene publications years of age, the offender should not be prosecuted for sexual
and indecent shows” mentioned in Section 3(d)(3) abuse but for statutory rape under Article 266-A(1)(d) of the
Revised Penal Code and penalized with reclusion perpetua.
of RA 7610. Thus, a child performing in indecent
On the other hand, if the victim is 12 years or older, the
shows in a cabaret is a child subjected to “other offender should be charged with either sexual abuse under Section
sexual abuse.” A customer in such cabaret who 5(b) of RA 7610 or rape under Article 266-A (except paragraph
commits acts of lasciviousness on the child is liable 1[d]) of the Revised Penal Code. However, the offender cannot be
for violation of Section 5 of RA 7610. Also, a accused of both crimes for the same act because his right against
photographer who commits acts of lasciviousness double jeopardy will be prejudiced. A person cannot be subjected
on a child he is shooting for an obscene publication twice to criminal liability for a single criminal act. People vs. Abay,
580 SCRA 235(2009)
is liable for violation of Section 5 of RA 7610. The
penalty for such acts of lasciviousness is more 2.12 CAN RAPE INSTEAD BE COMPLEXED WITH A
severe than if the acts are committed without the VIOLATION OF SECTION 5 (B) OF RA 7610?
special circumstances of the child’s subjection to The answer is in the negative. Likewise, rape cannot be
“other sexual abuse.” [Olivarez vs. Court of complexed with a violation of Section 5(b) of RA 7610. Under
Appeals, 465 SCRA 465(2005)] Section 48 of the Revised Penal Code (on complex crimes), a
felony under the Revised Penal Code (such as rape) cannot be
2.07 DEFINE “SEXUAL ABUSE” UNDER THE complexed with an offense penalized by a special law. People v.
IMPLEMENTING RULES. Abay 580 SCRA 235, February 24, 2009
Section 2(g) of the Rules and Regulations on the
Reporting and Investigation of Child Abuse Cases, promulgated to 2.13 CAN AN ACCUSED BE CONVICTED OF ACTS OF
implement R.A. No. 7610, defines “sexual abuse” as including LASCIVIOUSNESS PUNISH UNDER THE REVISED
“the employment, use, persuasion, inducement, PENAL CODE INSTEAD OF VIOLATION OF
enticement or coercion of a child to engage in, or assist another SECTION 5 (B) OF RA 7610?
person to engage in, sexual intercourse or lascivious conduct or the The answer is in the affirmative. The special
molestation, prostitution, or incest with children.” People v. circumstance that the child is “subjected to other sexual abuse” is
Court of Appeals, 562 SCRA 619, August 20, 2008 not an element in the crime of acts of lasciviousness under Article
336 of the Revised Penal Code.
2.08 MUST SEXUAL INTERCOURSE AND LASCIVIOUS In Olivarez vs. Court of Appeals, 465 SCRA 465(2005),
ACT BE HABITUAL? since the Information failed to allege the second essential element
No, each incident of sexual intercourse and lascivious act of the crime as defined in Section 5 of RA 7610, accused Olivarez
with a child under the circumstances mentioned in Art. III, §5 of cannot be convicted for violation of RA 7610. The Information is
R.A. No. 7160 is a separate and distinct offense. The offense is void to charge Olivarez for violation of Section 5 of RA 7610.
similar to rape or act of lasciviousness under the Revised Penal Otherwise, Olivarez’s would be deprived of his constitutional right
Code in which each act of rape or lascivious conduct should be the to be informed of the charge against him. However, the

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Information is sufficient to charge Olivarez for violation of Article "Acts of child abuse" under Section 10 (a) of R.A.
336 of the RPC. The special circumstance that the child is 7610 refers to those acts listed under Sec. 3 (b) of R.A. 7610,
“subjected to other sexual abuse” is not an element in the crime of which reads as follows:
acts of lasciviousness under Article 336 of the RPC. Thus, the
Information remains valid to charge Olivarez with acts of Sec. 3. Definition of Terms –
lasciviousness, not under Section 5 of RA 7610, but under Article
336 of the RPC.
(a) x x x
2.14 WHAT ACTS ARE PUNISHED UNDER SECTION 5 (C)
OF R.A. 7610? (b) "Child Abuse" refers to maltreatment, whether
habitual or not, of the child which includes any of the following:
Section 5 (c) of Article III of R.A. 7610 punishes:
1) Psychological and physical abuse, neglect,
cruelty, sexual abuse and emotional maltreatment;
“Those who derive profit or advantage therefrom,
whether as manager or owner of the establishment where the
prostitution takes place, or of the sauna, disco, bar, resort, place 2) Any act or deeds or words which debases, degrades or
of entertainment or establishment serving as a cover or which demeans the intrinsic worth and dignity of a child as a human
engages in prostitution in addition to the activity for which the being;
license has been issued to said establishment.”
3) Unreasonable deprivation of his basic needs for
3.00 WHEN IS THERE AN ATTEMPT TO COMMIT CHILD survival, such as food and shelter; or
PROSTITUTION? (Section 6)
4) Failure to immediately give medical treatment to an
R.A. 7610 Section 6 on Attempt To Commit Child injured child resulting in serious impairment of his growth and
Prostitution provides: development or in his permanent incapacity or death. PEOPLE vs.
OLAYON, G.R. No. 171863 August 20, 2008
“There is an attempt to commit child prostitution under In Araneta vs. People, G.R. No. 174205, June 27, 2008,
Section 5, paragraph (a) hereof when any person who, not being 556 SCRA 323(2008), the Court said that Section 10, Article VI of
a relative of a child, is found alone with the said child inside the R.A. 7610 enumerates the “other acts of abuse.” The provision
room or cubicle of a house, an inn, hotel, motel, pension house, punishes not only those enumerated under Article 59 of
apartelle or other similar establishments, vessel, vehicle or any Presidential Decree No. 603, but also four distinct acts, i.e., (a)
other hidden or secluded area under circumstances which would child abuse, (b) child cruelty, (c) child exploitation and (d) being
lead a reasonable person to believe that the child is about to be responsible for conditions prejudicial to the child’s development.
exploited in prostitution and other sexual abuse.
3.03 HOW IS THE WORD “OR” BETWEEN
There is also an attempt to commit child prostitution, “EXPLOITATION” AND “BE RESPONSIBE FOR
under paragraph (b) of Section 5 hereof when any person is OTHER CONDITIONS PREJUDICIAL TO THE
receiving services from a child in a sauna parlor or bath, CHILD’S DEVELOPMENT” BE CONSTRUED?
massage clinic, health club and other similar establishments. It is a rule in statutory construction that the word “or” is
a disjunctive term signifying dissociation and Section 10(a) of
A penalty lower by two (2) degrees than that prescribed Republic Act No. 7610 before the phrase “be responsible for other
for the consummated felony under Section 5 hereof shall be conditions prejudicial to the child’s development” supposes that
imposed upon the principals of the attempt to commit the crime there are four punishable acts therein.
of child prostitution under this Act, or, in the proper case, under First, the act of child abuse;
the Revised Penal Code.” second, child cruelty;
third, child exploitation; and
fourth, being responsible for conditions prejudicial to the
3.01 WHO IS GUILTY OF CHILD TRAFFICKING? (Section child’s development.
7) The fourth penalized act cannot be interpreted, as
petitioner suggests, as a qualifying condition for the three other
Any person who shall engage in trading and dealing with acts, because an analysis of the entire context of the questioned
children including, but not limited to, the act of buying and selling provision does not warrant such construal. Araneta v. People 556
of a child for money, or for any other consideration, or barter, shall SCRA 323, June 27, 2008
suffer the penalty of reclusion temporal to reclusion perpetua. The
penalty shall be imposed in its maximum period when the victim is 3.04 MUST THE PROSECUTION NEED TO PROVE THAT
under twelve (12) years of age. THE ACTS OF CHILD ABUSE, CHILD CRUELTY
AND CHILD EXPLOITATION HAVE RESULTED IN
The law provides: THE PREJUDICE OF THE CHILD’S
DEVELOPMENT?
No. The prosecution need not prove that the acts of child
“Section 10. Other Acts of Neglect, Abuse, Cruelty or abuse, child cruelty and child exploitation have resulted in the
Exploitation and Other Conditions Prejudicial to the Child's prejudice of the child because an act prejudicial to the development
Development. – of the child is different from the former acts.
The Rules and Regulations of the questioned statute
(a) Any person who shall commit any other acts of child distinctly and separately defined child abuse, cruelty and
abuse, cruelty or exploitation or to be responsible for other exploitation just to show that these three acts are different from one
conditions prejudicial to the child's development including another and from the act prejudicial to the child’s development.
those covered by Article 59 of Presidential Decree No. 603, Contrary to petitioner’s assertion, an accused can be prosecuted
as amended, but not covered by the Revised Penal Code, as and be convicted under Section 10(a), Article VI of Republic Act
amended, shall suffer the penalty of prision mayor in its No. 7610 if he commits any of the four acts therein. Araneta v.
minimum period.” People 556 SCRA 323, June 27, 2008

3.05 IS “SEXUAL ABUSE” DEFINED UNDER SECTION 5

3.02 WHAT ACTS FALL UNDER THE TERM “ANY OTHER
OF R.A. NO. 7610 THE SAME AS “CHILD ABUSE”
ACTS OF CHILD ABUSE”?
UNDER SECTION 10?

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No. Sexual Abuse defined under Section 5 of R.A. No.
7610 is a completely distinct and separate offense from “child CHAPTER XV. THE LAW ON ARSON AS AMENDED
abuse” as defined under Section 10 thereof.
In People v. Court of Appeals, 562 SCRA 619, August 20,
2008, the Supreme Court declared that inasmuch as Section 10 Presidential Decree No. 1613
refers to acts of child abuse prejudicial to the child’s ___________________________________________________
development other than child prostitution and other sexual abuse
under Section 5, attempt to commit child prostitution, child 1.00 WHAT IS ARSON?
trafficking, attempt to commit child trafficking, and obscene
publications and indecent shows, the Court of Appeals did not It is a crime committed by any person who burns or sets
commit grave abuse of discretion in holding that “x x x ‘sexual fire to the property of another or when a person sets fire to his
abuse’ [as defined under Section 5] x x x is a completely distinct own property under circumstances which expose to danger the
and separate offense from ‘child abuse’ [as defined under Section life or property of another. (Sec.1)
10].” 1.01 WHAT CONSTITUTES DESTRUCTIVE ARSON?

3.06 ARE THE RULES OF OFFSETTING THE MODIFYING It is destructive arson when the property is burned in any
CIRCUMSTANCES APPLICABLE IN R.A. 7610, IT of the following:
BEING A SPECIAL LAW?
1. Any ammunition factory and other establishment
Notwithstanding that R.A. 7610 is a special law, where explosives, inflammable or combustible materials
appellant may enjoy the benefits of the Indeterminate Sentence are stored.
Law. Since the penalty provided in R.A. 7610 is taken from the
range of penalties in the Revised Penal Code, it is covered by the 2. Any archive, museum, whether public or private, or
first clause of Section 1 of the Indeterminate Sentence Law. any edifice devoted to culture, education or social
Anent the penalty, for violation of the provisions of services.
Section 5, Article III of R.A. 7610, the penalty prescribed is
reclusion temporal in its medium period to reclusion perpetua.
Therefore, in the absence of any mitigating or aggravating 3. Any church or place of worship or other building
circumstance, the proper imposable penalty is reclusion temporal in where people usually assemble.
its maximum period, the medium of the penalty prescribed by the
law. People vs. Dulay, 681 SCRA 638(2012) 4. Any train, airplane or any aircraft, vessel or watercraft,
or conveyance for transportation of persons or property
ADDENDUM:
5. Any building where evidence is kept for use in any
1. Elements of sexual abuse.
legislative, judicial, administrative or other official
proceedings.
In People v. Espinoza, it was held that healed lacerations
do not negate rape. In fact, lacerations, whether healed or fresh, are
the best physical evidence of forcible defloration. x x x Moreover, 6. Any hospital, hotel, dormitory, lodging house, housing
in the present case, Dr.Orais clarified to the court that even if the tenement, shopping center, public or private market,
alleged sexual assault took place in the year 2005 or a year after theater or movie house or any similar place or building.
AAA was examined, the old healed lacerations could still be found.
(People vs. Sanico, G.R. No. 208469, August 13, 2014, Reyes, J.) 7. Any building, whether used as a dwelling or not,
situated in a populated or congested area (Sec.2).
2. Higher penalty when victim is a child.
1.02 ENUMERATE THE SPECIAL AGGRAVATING
The slightest penetration into one’s sexual organ CIRCUMSTANCES IN ARSON
distinguishes an act of lasciviousness from the crime of
rape. People v. Bonaagua discussed this distinction: It must be The following are the special aggravating circumstances
emphasized, however, that like in the crime of rape whereby the in Arson: (Sec.4)
slightest penetration of the male organ or even its slightest contact
with the outer lip or the labia majora of the vagina already
consummates the crime, in like manner, if the tongue, in an act of 1. If committed with intent to gain;
cunnilingus, touches the outer lip of the vagina, the act should also
be considered as already consummating the crime of rape through 2. If committed for the benefit of another;
sexual assault, not the crime of acts of
lasciviousness. Notwithstanding, in the present case, such logical
3. If the offender is motivated by spite or hatred towards
interpretation could not be applied. It must be pointed out that the
the owner or occupant of the property burned;
victim testified that Ireno only touched her private part and licked
it, but did not insert his finger in her vagina. This testimony of the
victim, however, is open to various interpretation, since it cannot 4. If committed by a syndicate.
be identified what specific part of the vagina was defiled by
Ireno. Thus, in conformity with the principle that the guilt of an 1.03 WHEN IS ARSON COMMITTED BY A SYNDICATE?
accused must be proven beyond reasonable doubt, the statement (Sec.4)
cannot be the basis for convicting Ireno with the crime of rape
through sexual assault.
The offense is committed by a syndicate if it is planned
or carried out by a group of three (3) or more persons.

1.04 WHAT IS THE CONSEQUENCE IF BY REASON OF

OR ON THE OCCASION OF THE ARSON DEATH
RESULTS?

A higher penalty shall be imposed.

1.05 WHAT CIRCUMSTANCES CONSTITUTE PRIMA

FACIE EVIDENCE OF ARSON? (Section 6)

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Any of the following circumstances shall constitute HOUSE WAS SET ON FIRE, WHAT CRIME WAS
prima facie evidence of arson: COMMITTED?

1. If the fire started simultaneously in more than one part If the offender knew that the victim was in the house
of the building or establishment. when it was set on fire, the crime committed, instead of arson,
would be murder. The fire constitutes as a qualifying
circumstance.
2. If substantial amount of flammable substances or
materials are stored within the building note necessary in 2.03(a) BAR Q. [2012] With intent to kill, GGG burned the
the business of the offender nor for household us. house where F and D were staying. F and D died as a
consequence. What is the proper charge against GGG?
3. If gasoline, kerosene, petroleum or other flammable or
combustible substances or materials soaked therewith or a. GGG should be charged with two (2)
containers thereof, or any mechanical, electrical, counts of murder.
chemical, or electronic contrivance designed to start a b. GGG should be charged with arson.
fire, or ashes or traces of any of the foregoing are found c. GGG should be charged with complex
in the ruins or premises of the burned building or crime of arson with double murder.
property. d. GGG should be charged with complex
crime of double murder (*Fire was used
4. If the building or property is insured for substantially to commit the killing.It serves as a
more than its actual value at the time of the issuance of qualifying circumstance to the crime of
the policy. murder. It is a complex crime under
Article 48 of the RPC because the single
act of burning the house constitutes 2
5. If during the lifetime of the corresponding fire grave felonies).
insurance policy more than two fires have occurred in the
same or other premises owned or under the control of the 2.04 SUPPOSE BEFORE SETTING THE HOUSE ON FIRE,
offender and/or insured. THE OFFENDER ENTERED IN AND KILLED THE
VICTIM, THEN HE SET IT ON FIRE TO CONCEAL
6. If shortly before the fire, a substantial portion of the THE BODY OF THE LATTER, WHAT CRIME WAS
effects insured and stored in a building or property had COMMITTED?
been withdrawn from the premises except in the ordinary
course of business. If the offender killed the victim before the house was set on
fire, two crimes are committed, murder and arson. The burning of
the house to hide the killing is a separate crime. Arson was
7. If a demand for money or other valuable consideration
committed to conceal the crime of murder.
was made before the fire in exchange for the desistance
of the offender or for the safety of the person or property
2.05(a) BAR Q.[2011] Dagami concealed Bugna’s body and
of the victim.
the fact that he killed him by setting Bugna’s house on
fire. What crime or crimes did Dagami commit?
1.06 IS THERE A CRIME OF CONSPIRACY TO COMMIT
ARSON? a. Murder, the arson being absorbed already
b. Separate crimes of murder and arson
Yes. Mere conspiracy to commit arson is punishable. c. Arson, the homicide being absorbed already
d. Arson with murder as a compound crime
2.00 SUPPOSE THE OFFENDER SET THE HOUSE OF THE
3.00 WHEN IS A CRIME INVOLVING DESTRUCTION AN
VICTIM ON FIRE BY WAY OF REVENGE AGAINST
ACT OF TERRORISM?
THE LATTER. HE WAS NOT AWARE THAT THE
VICTIM WAS INSIDE AND CONSEQUENTLY, THE
Under R.A. No. 9372, otherwise known as the Human
LATTER DIED BECAUSE OF THE FIRE. WHAT
Security Act of 2007, a person who commits an act punishable
CRIME WAS COMMITTED?
under Art. 324 (Crimes Involving Destruction) and thereby sowing
and creating condition of widespread and extraordinary fear and
The crime is mere arson. There is no complex crime of
panic among the populace, in order to coerce the government to
arson with homicide. The crime of homicide is absorbed. The
give in to an unlawful demand shall be guilty of the crime of
consequence, if by reason of or on the occasion of the arson death
terrorism and shall suffer the penalty of forty (40) years of
results, is the imposition of a higher penalty.
imprisonment without the benefit of parole.
2.01 (a) BAR Q. [2012] With intent to cause damage, AAA
deliberately set fire upon the two-storey residential OTHER MATTERS TO CONSIDER
house of his employer, mostly made of wooden
materials. The blaze spread and gutted down seven The building which is the object of arson including the land
neighboring houses. On the occasion of the fire, six (6) on which it is situated shall be confiscated and escheated to the
persons sustained burn injuries which were the direct State, unless the owner thereof can prove that he has no
cause of their death. What crime was committed by participation in nor knowledge of such arson despite the exercise of
AAA? due diligence on his part. (Sec.8)
a. AAA committed the complex crime of
arson with multiple homicide.
b. AAA committed arson and multiple
homicide.
c. AAA committed simple arson (*There is
no complex crime of arson with
homicide. Homicide is absorbed in
arson).
d. AAA committed arson and multiple
murder.

2.02 SUPPOSE THE OFFENDER KNEW THAT THE

VICTIM WAS INSIDE THE HOUSE BEFORE THE

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CHAPTER III. THE ANTI- TORTURE ACT (10) Pulling out of fingernails;
Republic Act 9745
(11) Harmful exposure to the elements such as
sunlight and extreme cold;
1.00 WHAT IS REPUBLIC ACT No. 9745?
(12) The use of plastic bag and other materials
It is an act penalizing torture and other cruel, inhuman placed over the head to the point of asphyxiation;
and degrading treatment or punishment and prescribing penalties
therefore. The act is known as the "Anti-Torture Act of 2009". (13) The use of psychoactive drugs to change
1.01 DEFINE "TORTURE". the perception, memory. alertness or will of a person,
such as:
It refers to an act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person (i) The administration or drugs to induce
for such purposes as obtaining from him/her or a third person confession and/or reduce mental competency;
information or a confession; punishing him/her for an act he/she or or
a third person has committed or is suspected of having committed;
or intimidating or coercing him/her or a third person; or for any (ii) The use of drugs to induce extreme pain or
reason based on discrimination of any kind, when such pain or certain symptoms of a disease; and
suffering is inflicted by or at the instigation of or with the consent
or acquiescence of a person in authority or agent of a person in (14) Other analogous acts of physical torture;
authority. It does not include pain or Buffering arising only from,
inherent in or incidental to lawful sanctions. (*same definition 1.04 EXPLAIN THE MEANING AND SCOPE OF
under IRR) "MENTAL/PSYCHOLOGICAL TORTURE".

1.02 WHAT DOES THE TERM "OTHER CRUEL, INHUMAN It refers to acts committed by a person in authority or
AND DEGRADING TREATMENT OR agent of a person in authority which are calculated to affect or
PUNISHMENT" MEAN? confuse the mind and/or undermine a person's dignity and morale,
such as:
It refers to a deliberate and aggravated treatment or
punishment not enumerated under Section 4 (Acts of torture) of (1) Blindfolding;
this Act, inflicted by a person in authority or agent of a person in
authority against a person under his/her custody, which attains a (2) Threatening a person(s) or his/her
level of severity causing suffering, gross humiliation or relative(s) with bodily harm, execution or other wrongful
debasement to the latter. acts;

1.03 ENUMERATE THE ACTS OF TORTURE PROVIDED (3) Confinement in solitary cells or secret
UNDER SECTION 4. detention places;

For purposes of this Act, torture shall include, but not be (4) Prolonged interrogation;
limited to, the following:
(5) Preparing a prisoner for a "show trial",
(a) Physical torture is a form of treatment or public display or public humiliation of a detainee or
punishment inflicted by a person in authority or agent of prisoner;
a person in authority upon another in his/her custody that
causes severe pain, exhaustion, disability or dysfunction (6) Causing unscheduled transfer of a person
of one or more parts of the body, such as: deprived of liberty from one place to another, creating
the belief that he/she shall be summarily executed;
(1) Systematic beating, headbanging, punching,
kicking, striking with truncheon or rifle butt or other (7) Maltreating a member/s of a person's
similar objects, and jumping on the stomach; family;

(2) Food deprivation or forcible feeding with (8) Causing the torture sessions to be witnessed
spoiled food, animal or human excreta and other stuff or by the person's family, relatives or any third party;
substances not normally eaten;
(9) Denial of sleep/rest;
(3) Electric shock;
(10) Shame infliction such as stripping the
(4) Cigarette burning; burning by electrically person naked, parading him/her in public places, shaving
heated rods, hot oil, acid; by the rubbing of pepper or the victim's head or putting marks on his/her body
other chemical substances on mucous membranes, or against his/her will;
acids or spices directly on the wound(s);
(11) Deliberately prohibiting the victim to
(5) The submersion of the head in water or communicate with any member of his/her family; and
water polluted with excrement, urine, vomit and/or blood
until the brink of suffocation; (12) Other analogous acts of
mental/psychological torture.
(6) Being tied or forced to assume fixed and
stressful bodily position; 1.05 UNDER SECTION 5, WHAT IS THE MEANING OF
THE TERM”OTHER CRUEL, INHUMAN AND
(7) Rape and sexual abuse, including the DEGRADING TREATMENT OR PUNISHMENT”?
insertion of foreign objects into the sex organ or rectum,
or electrical torture of the genitals; It refers to a deliberate and aggravated treatment or
punishment not enumerated under Section 4 of this Act, inflicted
(8) Mutilation or amputation of the essential by a person in authority or agent of a person in authority against
parts of the body such as the genitalia, ear, tongue, etc.; another person in custody, which attains a level of severity
sufficient to cause suffering, gross humiliation or debasement to
(9) Dental torture or the forced extraction of the latter.
the teeth;

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The assessment of the level of severity shall depend on and Z, police trainees, beat up and tortured W to get
all the circumstances of the case, including the duration of the his confession. X is liable as
treatment or punishment, its physical and mental effects and, in
some cases, the sex, religion, age and state of health of the victim. A. as accomplice in violation of the Anti-Torture Act.
B. a principal in violation of the Anti-Torture Act.
1.06 UNDER SECTION 6, IS FREEDOM FROM TORTURE C. a principal in violation of the Anti-Hazing Law.
AND OTHER CRUEL, INHUMAN AND D. an accomplice in violation of the Anti-Hazing Law.
DEGRADING TREATMENT OR PUNISHMENT AN
ABSOLUTE BIGHT? 1.10 WHO ARE LIABLE AS ACCOMPLICES?

Yes. Torture and other cruel, inhuman and degrading Any person who, not being included in Section 26 hereof,
treatment or punishment as criminal acts shall apply to all cooperate in the execution of torture or other cruel, inhuman and
circumstances. degrading treatment or punishment by previous or simultaneous
acts is an accomplice. (Sec. 27, IRR)
The Implementing Rules and regulations provide:
1.11 WHO ARE LIABLE AS ACCESSORIES?
Section 8. Freedom from Torture and Other Cruel,
Inhuman and Degrading Treatment or Punishment, An Any public officer or employee shall be liable as an
Absolute Right. - Torture and other cruel, inhuman and accessory if he/she has knowledge that torture or other cruel,
degrading treatment or punishment as criminal acts shall inhuman and degrading treatment or punishment is being
apply to all circumstances. A state of war or a threat of committed and without having participated therein, either as
war, internal political instability, or any other public principal or accomplice, takes part subsequent to its commission in
emergency, or a document or any determination any of the following manner:
comprising an "order of battle" shall not and can never
be invoked as a justification for torture and other cruel, (a) By themselves profiting from or assisting the offender
inhuman and degrading treatment or punishment. to profit from the effects of the act of torture or other
cruel, inhuman and degrading treatment or punishment;
1.07 WHO ARE THE PERSONS CRIMINALLY LIABLE
UNDER SECTION 13? (b) By concealing the act of torture or other cruel,
inhuman and degrading treatment or punishment and/or
The law adopted the classification of persons criminally destroying the effects or instruments thereof in order to
liable under the Revised Penal Code, to wit: principals, prevent its discovery; or
accomplices and accessories.
(c) By harboring, concealing or assisting m the escape of
1.08 WHO ARE LIABLE AS PRINCIPALS? the principal/s in the act of torture or other cruel,
inhuman and degrading treatment or punishment:
1. Any person who actually participated or induced another in the Provided, That the accessory acts are done with the abuse
commission of torture or other cruel, inhuman and degrading of the official's public functions.
treatment or punishment or who cooperated in the execution of
the act of torture or other cruel, inhuman and degrading 1.12 CAN TORTURE AS A CRIME ABSORB OR BE
treatment or punishment by previous or simultaneous acts shall ABSORBED BY ANY OTHER CRIME?
be liable as principal.
No. Torture should be treated as a separate and
2. Any superior military, police or law enforcement officer or independent crime under the law.
senior government official who issued an order to any lower
ranking personnel to commit torture for whatever purpose shall Section 15 is clear. Torture as a crime shall not absorb or
be held equally liable as principals. shall not be absorbed by any other crime or felony committed as a
consequence, or as a means in the conduct or commission thereof.
3. The immediate commanding officer of the unit concerned of In which case, torture shall be treated as a separate and
the AFP or the immediate senior public official of the PNP and independent criminal act whose penalties shall be imposable
other law enforcement agencies shall be held liable as a without prejudice to any other criminal liability provided for by
principal to the crime of torture or other cruel or inhuman and domestic and international laws.
degrading treatment or punishment- for any act or omission, or
negligence committed by him/her that shall have led, assisted,
abetted or allowed, whether directly or indirectly, the 1.13 WHAT IS THE PENALTY IF ANY OF THE CRIMES
commission thereof by his/her subordinates. AGAINST PERSONS OR AGAINST PERSONAL
LIBERTY AND SECURITY IS ATTENDED BY
Requisites: TORTURE AND SIMILAR ACTS?

a. If he/she has knowledge of or, owing to the circumstances at If the commission of any crime punishable under Title
the time, should have known that acts of torture or other cruel, Eight (Crimes Against Persons) and/or Title Nine (Crimes Against
inhuman and degrading treatment or punishment shall be Personal Liberty and Security) of the Revised Penal Code is
committed, is being committed, or has been committed by attended by any of the acts constituting torture and other cruel,
his/her subordinates or by others within his/her area of inhuman and degrading treatment or punishment as defined herein,
responsibility and, the penalty to be imposed shall be in its maximum period.

b. despite such knowledge, did not take preventive or corrective 1.14 MAY A PERSON WHO IS FOUND TO HAVE
action either before, during or immediately after its COMMITTED THE CRIME OF TORTURE BE
commission, when he/she has the authority to prevent or BENEFITED FROM ANY SUBSEQUENT SPECIAL
investigate allegations of t;orture or other cruel, inhuman and AMNESTY LAW?
degrading treatment or punishment
No. They are excluded from the coverage of special
c. failed to prevent or investigate allegations of such act, amnesty law.
whether deliberately or due to negligence shall also be liable
as principals. 1.15 CAN A PERSON BE EXTRADITED EVEN IF HE IS IN
DANGER OF BEING SUBJECTED TO TORTURE ?
1.09 BAR Q. [2011] X, a police officer, placed a hood on the
head of W, a suspected drug pusher, and watched as Y No. Section 17 is clear. No person shall be expelled,
returned or extradited to another State where there are substantial

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grounds to believe that such person shall be in danger of being CHAPTER I. HUMAN SECURITY ACT OF 2007
subjected to torture. (THE ANTI-TERRORISM LAW)
Republic Act No. 9372
1.16 WHAT IS THE PRESCRIPTIVE PERIOD OF THE ___________________________________________________
CRIME OF TORTURE?
1.00 WHAT ARE THE ELEMENTS OF THE CRIME OF
It has no prescriptive period. Under Section 45 of the TERRORISM? (Sec.3)
Implementing Rules and Regulations, torture is a non-prescriptible
offense. The statute of limitation or prescription period shall not
apply to torture cases. 1. First, any person who commits an act punishable
under any of the following provisions of the Revised Penal
1.17 IS THE REVISED PENAL CODE APPLICABLE IN Code:
THIS ACT?
a. Article 122 (Piracy in General and Mutiny in the High
Yes, Section 22 clearly provides for the applicability of Seas or in the Philippine Waters);
the Revised Penal Code. It states that the provisions of the Revised
Penal Code insofar as they are applicable shall be suppletory to this b. Article 134 (Rebellion or Insurrection);
Act.

c. Article 134-a (Coup d' Etat), including acts committed

by private persons;

d. Article 248 (Murder);

e. Article 267 (Kidnapping and Serious Illegal

Detention);

f. Article 324 (Crimes Involving Destruction), or under

1. Presidential Decree No. 1613 (The Law on

Arson);

2. Republic Act No. 6969 (Toxic Substances

and Hazardous and Nuclear Waste Control Act
of 1990);

3. Republic Act No. 5207, (Atomic Energy

Regulatory and Liability Act of 1968);

4. Republic Act No. 6235 (Anti-Hijacking

Law);

5. Presidential Decree No. 532 (Anti-Piracy

and Anti-Highway Robbery Law of 1974); and,

6. Presidential Decree No. 1866, as amended

(Decree Codifying the Laws on Illegal and
Unlawful Possession, Manufacture, Dealing in,
Acquisition or Disposition of Firearms,
Ammunitions or Explosives)

2. Second, the commission of the predicate crime sows

and creates a condition of widespread and extraordinary fear
and panic among the populace.

3. Third, the purpose is in order to coerce the

government to give in to an unlawful demand.

1.01 WILL THE BENEFIT OF PAROLE UNDER THE

INDETERMINATE SENTENCE LAW APPLY?

No. Any person guilty of the crime of terrorism and shall

suffer the penalty of forty (40) years of imprisonment, without the
benefit of parole as provided for under Act No. 4103, otherwise
known as the Indeterminate Sentence Law, as amended.

1.02 EXPLAIN THE ELEMENTS OF THE CRIME OF

TERRORISM.
From the definition of the crime of terrorism in the
earlier cited Section 3 of RA 9372, the following elements may be
culled:

(1) the offender commits an act punishable under any of

the cited provisions of the Revised Penal Code, or under
any of the enumerated special penal laws;
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legitimate, natural, and adopted brothers and sisters, or relatives by
(2) the commission of the predicate crime sows and affinity within the same degrees, with the single exception of
creates a condition of widespread and extraordinary fear accessories falling within the provisions of subparagraph (a).
and panic among the populace; and
1.08 WHEN MAY SURVEILLANCE OF SUSPECTS AND
(3) the offender is actuated by the desire to coerce the INTERCEPTION AND RECORDING OF
government to give in to an unlawful demand. COMMUNICATIONS ALLOWED? (Section 7)
Before a charge for terrorism may be filed under RA
9372, there must first be a predicate crime actually committed to The provisions of Republic Act No. 4200 (Anti-Wire
trigger the operation of the key qualifying phrases in the other Tapping Law) to the contrary notwithstanding, a police or law
elements of the crime, including the coercion of the government to enforcement official and the members of his team may listen to,
accede to an “unlawful demand.” Southern Hemisphere intercept and record communication upon a written order of the
Engagement Network, Inc. vs. Anti-Terrorism Council G.R. Court of Appeals.
No. 178552, October 5, 2010.
1.09 WHAT IS THE PERIOD OF DETENTION WITHOUT
1.03 WHEN IS THERE A CONSPIRACY TO COMMIT JUDICIAL WARRANT OF ARREST?
TERRORISM?
Section 18 of the law provides:
There is conspiracy when two or more persons come to
an agreement concerning the commission of the crime of terrorism “The provisions of Article 125 of the Revised Penal
as defined in Section 3 of R.A.9372 and decide to commit the Code to the contrary notwithstanding, any police or law
same. enforcement personnel, who, having been duly authorized in
writing by the Anti-Terrorism Council has taken custody of a
1.04 IS MERE CONSPIRACY TO COMMIT TERRORISM A person charged with or suspected of the crime of terrorism or the
CRIME? crime of conspiracy to commit terrorism shall, without incurring
any criminal liability for delay in the delivery of detained persons
to the proper judicial authorities, deliver said charged or
Yes, under Section 4 thereof, mere conspiracy to commit suspected person to the proper judicial authority within a period
terrorism is punishable. It provides: of three days counted from the moment the said charged or
suspected person has been apprehended or arrested, detained,
“Persons who conspire to commit the crime of terrorism shall and taken into custody by the said police, or law enforcement
suffer the penalty of forty (40) years of imprisonment.” personnel: Provided, That the arrest of those suspected of the
crime of terrorism or conspiracy to commit terrorism must result
1.05 WHO IS AN ACCOMPLICE? from the surveillance under Section 7 and examination of bank
deposits under Section 27 of this Act.
An accomplice is defined under Section 5. It provides:
1.10 WHAT IS THE CONSEQUENCE FOR FAILURE TO
DELIVER SUSPECT TO THE PROPER JUDICIAL
“Any person who, not being a principal under Article 17 of the AUTHORITY WITHIN THREE DAYS? (Section 20)
Revised Penal Code or a conspirator as defined in Section 4
hereof, cooperates in the execution of either the crime of
terrorism or conspiracy to commit terrorism by previous or Any police or law enforcement personnel who has
simultaneous acts shall suffer the penalty of from seventeen apprehended or arrested, detained and taken custody of a person
(17) years, four months one day to twenty (20) years of charged with or suspected of the crime of terrorism or conspiracy
imprisonment.” to commit terrorism and fails to deliver such charged or suspected
person to the proper judicial authority within the period of three (3)
days shall be criminally liable.
1.06 WHO IS AN ACCESSORY?
1.11 IS A PUBLIC OFFICER LIABLE UNDER THIS ACT
An accessory is defined under Section 6. It provides: FOR INFIDELITY IN THE CUSTODY OF
DETAINED PERSONS? (Section 44)
“Any person who, having knowledge of the
commission of the crime of terrorism or conspiracy to commit Yes, the law provides that any public officer who has
terrorism, and without having participated therein, either as direct custody of a detained person or under the provisions of this
principal or accomplice under Articles 17 and 18 of the Revised Act and who by his deliberate act, misconduct, or inexcusable
Penal Code, takes part subsequent to its commission in any of negligence causes or allows the escape of such detained person
the following manner: shall be guilty of an

(a) by profiting himself or assisting the offender to 1.12 DOES PROSECUTION UNDER THIS ACT BAR
profit by the effects of the crime; ANOTHER PROSECUTION UNDER THE REVISED
PENAL CODE OR ANY SPECIAL PENAL LAWS?
(b) by concealing or destroying the body of the crime,
or the effects, or instruments thereof, in order to prevent its Yes, the acquittal of the accused shall be a bar to another
discovery; prosecution for any offense or felony which is necessarily included
in the offense charged. Section 49 states:
(c) by harboring, concealing, or assisting in the escape
of the principal or conspirator of the crime, shall suffer the “When a person has been prosecuted under a provision
penalty of ten (10) years and one day to twelve (12) years of of this Act, upon a valid complaint or information or other
imprisonment.” formal charge sufficient in form and substance to sustain a
conviction and after the accused had pleaded to the charge, the
1.07 WHO ARE EXEMPTED FROM BEING AN acquittal of the accused or the dismissal of the case shall be a
ACCESSORY? bar to another prosecution for any offense or felony which is
necessarily included in the offense charged under this Act.”
Notwithstanding the above paragraph, the penalties
prescribed for accessories shall not be imposed upon those who
are such with respect to their spouses, ascendants, descendants,
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1.13 IS THE ACCUSED ENTITLED TO DAMAGES FOR (6) to individual persons who, although physically outside the
UNPROVEN CHARGE OF TERRORISM? (Section territorial limits of the Philippines, commit said crimes directly
50) against the Philippine government.”

Yes, R.A. 9372 provides that upon acquittal, any person

who is accused of terrorism shall be entitled to the payment of
damages in the amount of Five hundred thousand pesos
(P500,000.00) for every day that he or she has been detained or
deprived of liberty or arrested without a warrant as a result of such
an accusation.

The award of damages mentioned above shall be without

prejudice to the right of the acquitted accused to file criminal or
administrative charges against those responsible for charging him
with the case of terrorism.

1.14 ARE THE PROVISIONS OF BOOK I OF THE

REVISED PENAL CODE APPLICABLE TO R.A.
9372? (Section 52)

Yes, Section 52 explicitly provides that the provisions of

Book I of the Revised Penal Code shall be applicable to this Act.

1.15 DOES R.A. 9372 ALLOW EXTRAORDINARY

RENDITION? (Section 57)

No, there is a ban on extraordinary rendition. No person

suspected or convicted of the crime of terrorism shall be subjected
to extraordinary rendition to any country unless his or her
testimony is needed for terrorist related police investigations or
judicial trials in the said country and unless his or her human
rights, including the right against torture, and right to counsel, are
officially assured by the requesting country and transmitted
accordingly and approved by the Department of Justice.

1.16 CAN AN INDIVIDUAL PERSON, ALTHOUGH

PHYSICALLY OUTSIDE THE TERRITORIAL
LIMITS OF THE PHILIPPINES BE HELD
CRIMINALLY LIABLE FOR ACTS OF
TERRORISM?

Yes, the law has extra-territorial application. Section 58

constitute as an exception to the territoriality rule. It provides:

“Extra-Territorial Application of this Act. - Subject to

the provision of an existing treaty of which the Philippines is a
signatory and to any contrary provision of any law of
preferential application, the provisions of this Act shall apply:

(1) to individual persons who commit any of the crimes defined

and punished in this Act within the terrestrial domain, interior
waters, maritime zone, and airspace of the Philippines;

(2) to individual persons who, although physically outside the

territorial limits of the Philippines, commit, conspire or plot to
commit any of the crimes defined and punished in this Act inside
the territorial limits of the Philippines;

(3) to individual persons who, although physically outside the

territorial limits of the Philippines, commit any of the said
crimes on board Philippine ship or Philippine airship;

(4) to individual persons who commit any of said crimes within

any embassy, consulate, or diplomatic premises belonging to or
occupied by the Philippine government in an official capacity;

(5) to individual persons who, although physically outside the

territorial limits of the Philippines, commit said crimes against
Philippine citizens or persons of Philippines descent, where their
citizenship or ethnicity was a factor in the commission of the
crime; and

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CHAPTER IV. THE COMPREHENSIVE DANGEROUS 3. What is material is the delivery of the prohibited drug to the
DRUGS ACT OF 2002 Republic Act No. 9165 buyer which in this case, was sufficiently proved by the
prosecution through the testimony of the poseur-buyer and the
[BAR Q. 2014, 2010, 2009, 2007, 2006, 2005, 2004, 2002, 2000, presentation of the articles itself before th court. Besides, the
1998, 1996, 1992] money was already marked by the poseur buyer with his initials
CG. Neither is fingerprints a requirement in buy-bust operations.
__________________________________________________ There is no law or rule of evidence requiring the use of fluorescent
powder or the taking of the culprits fingerprints from the bag
containing the shabu. People vs. Saidmin Macabalang GR No.
168694; Novemeber 27, 2006
1.00 ENUMERATE THE UNLAWFUL ACTS UNDER THE 4. Mission order, court order and surveillance progress report are
LAW. (*bar topic) not required in buy-bust operation. People vs. Ong Co, 245 SCRA
733
The unlawful acts are as follows: 5. There is no fixed procedure for conducting buy- bust operations.
People vs. Cruda, 212 SCRA 125
6. In a “buy-bust” operation, the important aspect of police
1. Importation of Dangerous Drugs and/or Controlled
operatives in their modus operandi is not the hearing but seeing
Precursors and Essential Chemicals (Sec. 4)
the accused selling the prohibited drugs. People vs. Fernandez,
228 SCRA 301
Illustrative case c. Is non-coordination with PDEA fatal to the prosecution’s
cause?
BAR Q.[2006]After receiving a reliable
information that Dante Ong, a notorious drug smuggler, was Coordination with the Philippine Drug Enforcement
arriving on PAL Flight No. PR181, PNP Chief Inspector Agency (PDEA) is not an indispensable requirement before police
Samuel Gamboa formed a group of anti-drug agents. When authorities may carry out a buy-bust operation – a buy-bust
Ong arrived at the airport, the group arrested him and seized operation is not invalidated by mere non-coordination with the
his attache case. Upon inspection inside the Immigration PDEA. People vs. Roa
holding area, the attache case yielded 5 plastic bags of heroin
weighing 500 grams. Chief Inspector Gamboa took the d. ELEMENTS NECESSARY FOR THE PROSECUTION OF
attache case and boarded him in an unmarked car driven by ILLEGAL SALE OF DRUGS.
P03 Pepito Lorbes. On the way to Camp Crame and upon The elements necessary for the prosecution of illegal sale
nearing White Plains corner Edsa, Chief Inspector Gamboa of drugs are:
ordered P03 Lorbes to stop the car. They brought out the
drugs from the case in the trunk and got 3 plastic sacks of (1) the identity of the buyer and the seller, the object,
heroin. They then told Ong to alight from the car. Ong left and consideration; and
with the 2 remaining plastic sacks of heroin. Chief Inspector
Gamboa advised him to keep silent and go home which the (2) the delivery of the thing sold and the payment thereof.
latter did. Unknown to them, an NBI team of agents has been
following them and witnessed the transaction. They arrested What is material to the prosecution for illegal sale of
Chief Inspector Gamboa and P03 Lorbes. Meanwhile, dangerous drugs is the proof that the transaction or sale actually
another NBI team followed Ong and likewise arrested him. took place, coupled with the presentation in court of evidence of
All of them were later charged. corpus delicti. People vs. Macatingag, G.R. No. 181037, January
What are their respective criminal liabilities? 19, 2009
Suggested Answer: Chief Inspector Samuel Gamboa
and P03 Pepito Lorbes are liable as protector/coddler to the e. DIFFERENTIATE THE ELEMENTS OF ILLEGAL SALE
illegal importation of the dangerous drugs into the Philippines. FROM ILLEGAL POSSESSION OF DANGEROUS DRUGS.
They knew Mr. Ong violated the Comprehensive Drugs Act yet,
they used their position to facilitate his escape with a view to In a prosecution for illegal sale of dangerous drugs, the
prevent his arrest, prosecution and conviction . following elements must first be established: (1) proof that the
The police officers are guilty of misappropriation and failure to transaction or sale took place and (2) the presentation in court of
account for seized dangerous drugs punished under Sec 27 of the corpus delicti or the illicit drug as evidence.
R.A. 91165. On the other hand, Dante Ong is guilty of illegal
importation of dangerous drugs under Art II Sec. 4, RA 9165. In a prosecution for illegal possession of a dangerous
2. Sale, Trading, Administration, Dispensation, Delivery, drug, it must be shown that (1) the accused was in possession of an
Distribution and Transportation of Dangerous Drugs and/or item or an object identified to be a prohibited or regulated drug, (2)
Controlled Precursors and Essential (Sec. 5) such possession is not authorized by law, and (3) the accused was
freely and consciously aware of being in possession of the drug.
a. What is a BUY- BUST OPERATION? People vs. Darisan, G.R. No. 176151, January 30, 2009
A buy-bust operation is a form of entrapment which
had repeatedly been accepted to be a valid means of arresting 3. Possession of Dangerous Drugs. (Sec.11)
violators of the Dangerous Drugs Law; In every prosecution for
Illegal sale of prohibited or regulated drugs, the following a. Does RA6425 prescribe a single punishment for
elements must be established (1) the identity of the buyer and illegal possession of shabu and marijuana committed at the
seller, the object and the consideration; and (2) the delivery of the same time and in the same place?
thing sold and the payment thereof. People vs.Suson and Fortich, RA 6425 does not prescribe a single punishment for
G.R. No. 152848, July 12, 2006 the various offenses enumerated in the law; RA 6425 enumerates
b. Principles in Buy-Bust Operation. the punishable acts and its corresponding penalty; it also
1. The presentation in evidence of the “buy-bust” money is not specifies the particular drugs and corresponding quality in the
indispensable for the conviction of an accused provided that the imposition of penalty.
sale of marijuana is adequately proven by the prosecution. People The prosecution was correct in filing two separate
vs. Pascual, 208 SCRA 393 Informations for the crimes of illegal possession of shabu and
2. It is not surprising for a police officer to use his own money illegal possession of marijuana. Clearly, the legislature did not
during the buy-bust operation-- such use of money does not intend to lump these two separate crimes into just one crime of
adversely affect the case against the accused. There is no possession of dangerous drugs. Otherwise there would be no need
requirement that the police must apply fluorescent powder to the to specify the different kinds of drugs and corresponding quantity
buy-bust money to prove the commission of the offense; there is in the application of the appropriate penalty. Multiple offenses
no law or rule of evidence requiring the use of fluorescent powder can be committed under RA 6425 even if the crimes are
or the taking of the culprit's fingerprints from the bag containing committed in the same place, at the same time, and by the same
the shabu. person. Thus, this Court has upheld rulings of the lower courts
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convicting an accused charged with two separate crimes of illegal BAR Q. [2002] A and his fiancée B were walking in the plaza
possession of shabu and illegal possession of marijuana, even if when they met a group of policemen who had been tipped off
the crimes were committed at the same time and in the same place. that A was in possession of prohibited drugs. Upon seeing the
As ruled in People vs Tira, 430 SCRA 134 (2004), policemen and sensing that they were after him, A handed a
illegal possession of shabu and marijuana constitutes two separate sachet containing shabu to his fiancée B, telling her to hide it
crimes and therefore two informations should be filed. People vs. her handbag. The policemen saw B placing the sachet inside
Hon Marcial Empleo, In His Capacity As Presiding Judge Of her handbag. If B was unaware that A was a drug user or
Branch 9, Regional Trial Court, Dipolog City, Dante Mah Y pusher or that what was inside the sachet given to her was
Cabilin shabu, is she nonetheless liable under the Dangerous Drugs
b. Enumerate the ELEMENTS OF THE CRIME OF Act?
ILLEGAL POSSESSION OF DANGEROUS DRUGS. Suggested Answer: B is not criminally liable. The facts
The elements of the crime of illegal possession of clearly show the absence of animus possidendi or intent to possess
dangerous drugs are as follow: which is an element of the crime of illegal possession of drugs.
(a) the accused was in possession of the regulated The accused was not fully and consciously aware of being in
drugs; possession of the dangerous drug.
(b) the accused was fully and consciously aware of 4. Use of Dangerous Drugs. (Sec.15)
being in possession of the regulated drug; and
(c) the accused had no legal authority to possess the a. What is the rule with respect to the use of dangerous drugs?
regulated drug. Possession may actual or constructive.
People vs. Eliza Buan, G.R. No. 168773, OCT. 27, 200
c. What is the concept of “POSSESSION”? A person apprehended or arrested, who is found to be
The court in People vs Tira, 430 SCRA 134 (2004), positive for use of any dangerous drug, after a confirmatory
ruminated on the juridical concept of possession and the test, shall be imposed a penalty of a minimum of six (6) months
evidence necessary to prove the said crime. Since the crime rehabilitation in a government center for the first offense, subject to
charged is mala prohibita, criminal intent is not essential the provisions of Article VIII of this Act. If apprehended using any
element. However the prosecution must prove that the accused dangerous drug for the second time, he/she shall suffer the penalty
had the intent to possess (animus posidendi) the drugs. of imprisonment ranging from six (6) years and one (1) day to
Possession, under the law, includes not only actual possession, twelve (12) years and a fine ranging from Fifty thousand pesos
but also constructive possession. Constructive possession exists (P50,000.00) to Two hundred thousand pesos (P200,000.00).
when the drug is under the dominion and control of the accused
or when he has the right to exercise dominion and control over b. Is there an exception to this rule?
the place where it is found. Exclusive possession or control is
not necessary. The accused cannot avoid conviction if his right
Yes, Section 15 of R.A. expressly excludes penalties for
to exercise control and dominion over the place where the
the use of dangerous drugs when the person is found to have in his
contraband is located, is shared with another. Thus conviction
possession quantity of any dangerous drug under Section 11. It
need not be predicated upon exclusive possession, and the
states:
showing of non-exclusive and any reasonable inference drawn
therefrom. However, the prosecution must prove that the
accused had knowledge of the existence and presence of the “That this Section shall not be applicable where the person
drug in the place under his control and dominion and the tested is also found to have in his/her possession such quantity of
character of the drug. any dangerous drug provided for under Section 11 of this Act, in
The fact that the appellant was not in the residence which case the provisions stated therein shall apply.”
when it was searched nor caught in flagrante delicto possessing
the illicit drugs and paraphernalia does not dent the case of the Illustrative case
prosecution. As a matter of law, when prohibited and regulated BAR Q. [2005] Obie Juan is suspected to have in his possession
drugs (under the old law) are found in a house or other building an unspecified amount of methamphetamine hydrochloride or
belonging to and occupied by a particular person, the “shabu”. An entrapment operation was conducted by police
presumption arises that such person is in possession of such officers, resulting in his arrest following the discovery of 100
drugs in violation of law, and the fact of finding the same is grams of the said dangerous drug in his possession. He was
sufficient to convict. Otherwise stated, the finding of the illicit subjected to a drug test and was found positive for the use of
drugs and paraphernalia in the house owned by the appellant marijuana, another dangerous drug. He was subsequently
raised the presumption of knowledge and, standing alone, was charged with two crimes: Violation of Section 11, Article II of
sufficient to convict. People vs. Torres, G.R. No. 170837, RA 9165 for the possession of “shabu” and violation of Section
September 12, 2006 15 for the use of marijuana. Are the charges proper? Explain.
d. When will the PRIMA FACIE EVIDENCE OF KNOWLEDGE or Suggested Answer: The charge of possession of
ANIMUS POSSIDENDI arise? shabu under Section 11, Article II of RA 9165 is proper. The
entrapment operation yielded the discovery of 100 grams of the
Mere possession of a regulated drug per se constitutes said dangerous drug in his possession. However, the charge of
prima facie evidence of knowledge or animus possidendi sufficient use of marijuana is not proper. Section 15 of Rep Act 9165 is
to convict an accused absent a satisfactory explanation of such explicit. It excludes penalties for use of dangerous drugs when
possession- the onus probandi is shifted to the accused, to explain “the person tested is also found to have in possession such
the absence of knowledge or animus possidendi”. With the burden quantity of any dangerous drug” provided in Section 11 of such
of evidence shifted to the appellant, it was his duty to explain his Act”.
innocence on the regulated drug seized from his person. People vs. 2.00 CHAIN OF CUSTODY (SEC. 21)
Gomez, G.R. No. 175319, January 15, 2010

e. What must be proved to establish CONSTRUCTIVE a. CITE THE PROPER CUSTODY AND DISPOSITION OF
POSSESSION? CONFISCATED, SEIZED, AND/OR SURRENDERED
In order to establish constructive possession, the DANGEROUS DRUGS, PLANT SOURCES OF
DANGEROUS DRUGS, CONTROLLED PRECURSORS
People must prove that petitioner has dominion or control on
AND ESSENTIAL CHEMICALS,
either the substance or the premises where found. The state
INSTRUMENTS/PARAPHERNALIA AND/OR
must prove adequate nexus between the accused and the
LABORATORY EQUIPMENT UNDER SEC. 21 OF R.A.9165.
prohibited substance. Possession of dangerous drugs constitutes
prima facie evidence of knowledge or animus possidendi
sufficient to convict an accused in the absence of any Sec. 21 of R.A. 9165 expressly provides that:
satisfactory explanation of such possession. The burden of
evidence is shifted to petitioner to explain the absence of animus “The PDEA shall take charge and have custody of all dangerous
possidendi. People vs .Buan, G.R. No. 168773, OCT. 27, 2006 drugs, plant sources of dangerous drugs, controlled precursors
Illustrative case and essential chemicals, as well as instruments/paraphernalia

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and/or laboratory equipment so confiscated, seized and/or (8) Transitory Provision: a) Within twenty-four (24) hours from
surrendered, for proper disposition in the following manner: the effectivity of this Act, dangerous drugs defined herein which
are presently in possession of law enforcement agencies shall,
(1) The apprehending team having initial custody and control of with leave of court, be burned or destroyed, in the presence of
the drugs shall, immediately after seizure and confiscation, representatives of the Court, DOJ, Department of Health (DOH)
physically inventory and photograph the same in the presence of and the accused/and or his/her counsel, and, b) Pending the
the accused or the person/s from whom such items were organization of the PDEA, the custody, disposition, and burning
confiscated and/or seized, or his/her representative or counsel, a or destruction of seized/surrendered dangerous drugs provided
representative from the media and the Department of Justice under this Section shall be implemented by the DOH.”
(DOJ), and any elected public official who shall be required to
sign the copies of the inventory and be given a copy thereof; b. What does “CHAIN OF CUSTODY” mean?
“Chain of Custody” means the duly recorded authorized
(2) Within twenty-four (24) hours upon confiscation/seizure of movements and custody of seized drugs or controlled chemicals or
dangerous drugs, plant sources of dangerous drugs, controlled plant sources of dangerous drugs or laboratory equipment of each
precursors and essential chemicals, as well as stage, from the time of seizure/confiscation to receipt in the
instruments/paraphernalia and/or laboratory equipment, the forensic laboratory to safekeeping to presentation in court for
same shall be submitted to the PDEA Forensic Laboratory for a destruction. Such record of movements and custody of seized item
qualitative and quantitative examination; shall include the identity and signature of the person who held
temporary custody of the seized item, the date and time when such
transfer of custody were made in the course of safekeeping and
(3) A certification of the forensic laboratory examination results, used in court as evidence, and the final disposition. People vs. Ruiz
which shall be done under oath by the forensic laboratory Garcia, G.R. No.173480 February 25, 2009
examiner, shall be issued within twenty-four (24) hours after the c. Is strict compliance with the prescribed procedure essential?
receipt of the subject item/s: Provided, That when the volume of
the dangerous drugs, plant sources of dangerous drugs, and Yes. Section 21, paragraph 1, Article II of R.A. No.
controlled precursors and essential chemicals does not allow the 9165 and Section 21(a), Article II of the Implementing Rules
completion of testing within the time frame, a partial laboratory and Regulations (IRR) of RA No. 9165 give us the procedures
examination report shall be provisionally issued stating therein that the apprehending team should observe in the handling of
the quantities of dangerous drugs still to be examined by the seized illegal drugs in order to preserve their identity and
forensic laboratory: Provided, however, That a final certification integrity as evidence. As indicated by their mandatory terms,
shall be issued on the completed forensic laboratory examination strict compliance with the prescribed procedure is essential and
on the same within the next twenty-four (24) hours; the prosecution must show compliance in every case. People vs.
Alejandro, G.R. No. 176350, August 10, 2011
(4) After the filing of the criminal case, the Court shall, within
seventy-two (72) hours, conduct an ocular inspection of the Strict compliance with the prescribed procedure is
confiscated, seized and/or surrendered dangerous drugs, plant required because of the illegal drug’s unique characteristic
sources of dangerous drugs, and controlled precursors and rendering it indistinct, not readily identifiable, and easily open to
essential chemicals, including the instruments/paraphernalia tampering, alteration or substitution either by accident or
and/or laboratory equipment, and through the PDEA shall otherwise. Hence, the rules on the measures to be observed during
within twenty-four (24) hours thereafter proceed with the and after the seizure, during the custody and transfer of the drugs
destruction or burning of the same, in the presence of the for examination, and at all times up to their presentation in court.
accused or the person/s from whom such items were confiscated The Court recognized the following links that must be established
and/or seized, or his/her representative or counsel, a in the chain of custody in a buy-bust situation:
representative from the media and the DOJ, civil society groups first, the seizure and marking, if practicable, of the illegal
and any elected public official. The Board shall draw up the drug recovered from the accused by the apprehending
guidelines on the manner of proper disposition and destruction officer;
of such item/s which shall be borne by the offender: Provided,
That those item/s of lawful commerce, as determined by the second, the turnover of the illegal drug seized by the
Board, shall be donated, used or recycled for legitimate apprehending officer to the investigating officer;
purposes: Provided, further, That a representative sample, duly
weighed and recorded is retained; third, the turnover by the investigating officer of the
illegal drug to the forensic chemist for laboratory
examination; and
(5) The Board shall then issue a sworn certification as to the fact
of destruction or burning of the subject item/s which, together
fourth, the turnover and submission of the marked
with the representative sample/s in the custody of the PDEA,
illegal drug seized from the forensic chemist to the court.
shall be submitted to the court having jurisdiction over the case.
People vs. Kamad, G.R. No. 174198, January 19, 2010
In all instances, the representative sample/s shall be kept to a
minimum quantity as determined by the Board;
d. Would non-compliance with the prescribed procedural
requirements render the seizure void?
(6) The alleged offender or his/her representative or counsel No. Mere lapses in procedures need not invalidate a
shall be allowed to personally observe all of the above seizure if the integrity and evidentiary value of the seized items can
proceedings and his/her presence shall not constitute an be shown to have been preserved.
admission of guilt. In case the said offender or accused refuses
or fails to appoint a representative after due notice in writing to As held in the case of People vs. Alejandro, G.R. No.
the accused or his/her counsel within seventy-two (72) hours 176350, August 10, 2011, the Supreme Court pronounced that
before the actual burning or destruction of the evidence in non-compliance with the prescribed procedural requirements does
question, the Secretary of Justice shall appoint a member of the not necessarily render the seizure and custody of the items void
public attorney's office to represent the former; and invalid; the seizure may still be held to be valid, provided that
(a) there is a justifiableground for the non-compliance, and (b)
(7) After the promulgation and judgment in the criminal case the integrity and evidentiary value of the seized items are shown
wherein the representative sample/s was presented as evidence in to have been properly preserved.
court, the trial prosecutor shall inform the Board of the final Further, in another case, the Court stressed that the
termination of the case and, in turn, shall request the court for failure on the part of the police officers to take photographs and
leave to turn over the said representative sample/s to the PDEA make an inventory of the drugs seized from the appellant was not
for proper disposition and destruction within twenty-four (24) fatal because the prosecution was able to preserve the integrity and
hours from receipt of the same; and evidentiary value of the said illegal drugs. People vs. Llamado, G.R.
No. 185278 March 13, 2009

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However, the failure to follow the procedure mandated 4. It cannot be over-emphasized that pertinent provisions
under R.A. No. 9165 and its IRR must be adequately explained. of RA 9165 require that the seized illegal items shall, after their
The justifiable ground for non-compliance must be proven as a inventory, be photographed in the presence of the drug dealer,
fact. The court cannot presume what these grounds are or that they representatives of media, the Department of Justice, or any elected
even exist. People vs. De Guzman, G.R. No. 186498, March 26, public official who participated in the operation. The records do
2010 not yield an indication that this particular requirement has been
complied with.To reiterate, the chain of custody requirement is
e. Is the presumption of regular performance of duty necessary in order to remove doubts as to the identity of the
conclusive in chain of custody cases? evidence, by monitoring and tracking custody of the seized drugs
from the accused, until they reach the court. A failure to comply
No. this presumption is not conclusive and cannot, by with the aforequoted Sec. 21 (1) of RA 9165 implies a concomitant
itself, overcome the constitutional presumption of innocence. failure on the part of the prosecution to establish the identity of the
The presumption of regularity, it must be emphasized, obtains seized illegal items as part of the corpus delicti. People v. Sitco,
only when there is no deviation from the regular performance May 14, 2010
of duty. 5. As a method of authenticating evidence, the chain of
custody rule requires that the admission of an exhibit be preceded
Where the official act in question is irregular on its by evidence sufficient to support a finding that the matter in
face, no presumption of regularity can arise. In the present case, question is what the proponent claims it to be. It would include
the procedural lapses by the apprehending team in the handling testimony about every link in the chain, from the moment the item
of the seized items – from their failure to mark it immediately was picked up to the time it is offered in evidence, in such a way
upon confiscation, to their failure to inventory and photograph that every person who touched the exhibit would describe how and
it in the presence of the accused, or his representative or from whom it was received, where it was and what happened to it
counsel, a representative from the media and the DOJ, and any while in the witness’ possession, the condition in which it was
elected public official, without offering any justifiable ground – received and the condition in which it was delivered to the next
effectively negated the presumption of regularity. People vs. link in the chain. These witnesses would then describe the
Alejandro, G.R. No. 176350, August 10, 2011 precautions taken to ensure that there had been no change in the
condition of the item and no opportunity for someone not in the
f. Does the stipulation to the chemist’s receipt of an “allegedly” chain to have possession of the same. Indeed, it is from the
confiscated specimen which tested positive for shabu sufficient? testimony of every witness who handled the evidence that a
reliable assurance can be derived that the evidence presented in
No. The stipulation referred to the chemist’s receipt of court and that seized from the accused are one and the same.
an “allegedly” confiscated specimen which tested positive for shabu People v. De Guzman, March 26, 2010
is not sufficient. There is no certainty that what was submitted and 6. The chain of custody requirement is essential to ensure
subjected for chemical examination was the specimen obtained from that doubts regarding the identity of the evidence are removed
appellant. The failure to establish the evidence’s chain of custody is through the monitoring and tracking of the movements of the
damaging to the prosecution’s case. People vs. Balagat, G.R. No. seized drugs from the accused, to the police, to the forensic
177163, April 24, 2000 chemist, and finally to the court. People v. Sitco, May 14, 2010
7. The duty to prove the guilt of an accused is reposed in
g. Cite certain important doctrines under the Chain of the State. Law enforcers and public officers have the duty to
Custody. preserve the chain of custody over the seized drugs. This guarantee
of the integrity of the evidence to be used against an accused goes
1. The chain of custody requirement is essential to ensure to the very heart of his fundamental rights. People vs .De Guzman,
that doubts regarding the identity of the evidence are removed G.R. No. 186498, March 26, 2010
through the monitoring and tracking of the movements of the 2.01 IS PLEA BARGAINING ALLLOWED UNDER THIS
seized drugs from the accused, to the police, to the forensic LAW? (SEC. 23)
chemist, and finally to the court. People v. Sitco, May 14, 2010
2. The duty to prove the guilt of an accused is reposed in Any person charged under any provision of this Act regardless
the State. Law enforcers and public officers have the duty to of the imposable penalty shall not be allowed to avail of the
preserve the chain of custody over the seized drugs. This guarantee provision on plea-bargaining.
of the integrity of the evidence to be used against an accused goes
to the very heart of his fundamental rights. People vs .De Guzman, Illustrative case
G.R. No. 186498, March 26, 2010 BAR Q. [2005] Obie Juan is suspected to have in his possession
3. Given the foregoing perspective, it is fairly evident that an unspecified amount of methamphetamine hydrochloride or
the police operatives trifled with the procedures in the custody of “shabu”. An entrapment operation was conducted by police
seized prohibited drugs in a buy-bust operation, as embodied in officers, resulting in his arrest following the discovery of 100
Sec. 21(1), Art. II of RA 9165, i.e., the apprehending officer/team grams of the said dangerous drug in his possession. He was
having initial custody and control of the drug shall: subjected to a drug test and was found positive for the use of
marijuana, another dangerous drug. He was subsequently
immediately after seizure and confiscation, charged with two crimes: Violation of Section 11, Article II of
physically inventory and photograph the [drug] RA 9165 for the possession of “shabu” and violation of Section
in the presence of the accused or the person/s 15 for the use of marijuana. X X X So as not to be sentenced to
from whom such items were confiscated and/or death, Obie Juan offers to plead guilty to a lesser offense. Can
seized, or his/her representative or counsel, a he do so? Why?
representative from the media and the Suggested Answer: No, Obie Juan cannot plead guilty to
Department of Justice (DOJ), and any elected a lesser offense since this is explicitly prohibited under Section 23
public official who shall be required to sign the of R.A. 9165. The law provides that any person charged under
copies of the inventory and be given a copy any provision of this Act regardless of the imposable penalty shall
thereof. not be allowed to avail of the provisions on plea bargaining.
2.02 CAN A PERSON CONVICTED OF DRUG
In this case, no physical inventory was made and no TRAFFICKING OR PUSHING AVAIL OF THE
photograph taken nor markings made on the seized articles at the BENEFITS UNDER THE PROBATION LAW? (SEC.
crime scene there is no reasonable assurance that no tampering or 24)
substitution occurred between the time the police seized the black
bag in P. Ocampo St. in Manila until its contents were tested in the
laboratory of the PNP R-IV headquarters in Canlubang, Laguna. No, a person convicted of either drug trafficking or
In net effect, a heavy cloud of doubt hangs over the integrity and pushing cannot avail of the benefits of probation. Under the
necessarily the evidentiary value of the seized items. People vs. express provision of Section 24, it provides:
Cervantes, G.R. No. 181494, March 17, 2009
“Any person convicted for drug trafficking or pushing under this

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Act, regardless of the penalty imposed by the Court, cannot avail 3.01 WHAT IS THE CONSEQUENCE AFTER
of the privilege granted by the Probation Law or Presidential COMPLIANCE WITH CONDITIONS OF
Decree No. 968, as amended.” SUSPENDED SENTENCE BY A FIRST-TIME MINOR
OFFENDER?
2.03 CITE THE SIGNIFICANCE IF A POSITIVE FINDING
FOR THE USE OF DANGEROUS DRUGS IS If the accused first time minor offender under suspended
FOUND IN THE COMMISSION OF A CRIME. sentence complies with the applicable rules and regulations of the
(SEC. 25) Board, including confinement in a Center, the court, upon a
favorable recommendation of the Board for the final discharge of
It shall constitute as a Qualifying Aggravating Circumstance the accused, shall discharge the accused and dismiss all
in the commission of the crime. Republic Act 9165 expressly reads: proceedings.

“ x x x a positive finding for the use of dangerous drugs shall be Upon the dismissal of the proceedings against the
a qualifying aggravating circumstance in the commission of a accused, the court shall enter an order to expunge all official
crime by an offender, and the application of the penalty provided records, other than the confidential record to be retained by the
for in the Revised Penal Code shall be applicable.” DOJ relating to the case. Such an order, which shall be kept
confidential, shall restore the accused to his/her status prior to the
case. He/she shall not be held thereafter to be guilty of perjury or
Illustrative case of concealment or misrepresentation by reason of his/her failure to
BAR Q. [2005] Candido stabbed an innocent bystander who acknowledge the case or recite any fact related thereto in response
accidentally bumped him. The innocent bystander died as a to any inquiry made of him for any purpose.
result of the stabbing. Candido was arrested and was tested to
be positive for the use of shabu at the time he committed the
stabbing. 3.02 CAN THE PRIVILEGE OF SUSPENDED SENTENCE
What should be the proper charge against Candido? BE AVAILED OF MORE THAN ONCE BY A FIRST-
Suggested Answer: Candido is guilty of homicide only. TIME MINOR OFFENDER?
The act of stabbing was not consciously adopted but only
accidental and therefore, negates treachery. However, since the No. The privilege of suspended sentence shall be availed
crime was committed when he was under the influence of of only once by an accused drug dependent who is a first-time
dangerous drugs, such act becomes a qualifying circumstance offender over fifteen (15) years of age at the time of the
pursuant to Section 25, R.A. 9165. commission of the violation of Section 15 of this Act but not more
2.04 UNDER THE LAW, THERE ARE ACTS WHERE than eighteen (18) years of age at the time when judgment should
MERE ATTEMPT OR CONSPIRACY TO COMMIT have been promulgated.
THE SAME IS ALREADY PUNISHABLE. CITE
THE UNLAWFUL ACTS. (SEC.26) 3.03 WHAT IS THE CONSEQUENCE IF THE ACCUSED
FIRST-TIME MINOR OFFENDER VIOLATES ANY
Sec. 26 enumerates the acts where mere attempt or OF THE CONDITIONS OF HIS/HER SUSPENDED
conspiracy to commit the following unlawful acts are punished. It SENTENCE?
states:
The court shall pronounce judgment of conviction and
“Any attempt or conspiracy to commit the following unlawful he/she shall serve sentence as any other convicted person.
acts shall be penalized:
3.04 CAN THE COURT PLACE THE ACCUSED UNDER
(a) Importation of any dangerous drug and/or controlled PROBATION OR COMMUNITY SERVICE IN LIEU
precursor and essential chemical; OF IMPRISONMENT?

(b) Sale, trading, administration, dispensation, delivery, Yes, Section 70 allows the court, in its discretion to
distribution and transportation of any dangerous drug place the accused under probation or imposed community service
and/or controlled precursor and essential chemical; in lieu of imprisonment.

(c) Maintenance of a den, dive or resort where any dangerous LIMITED APPLICABILITY OF THE REVISED PENAL
drug is used in any form; CODE

(d) Manufacture of any dangerous drug and/or controlled 4.00 ARE THE PROVISIONS OF THE REVISED PENAL
precursor and essential chemical; and CODE APPLICABLE TO R.A. 9165?

(e) Cultivation or culture of plants which are sources of The provisions of the Revised Penal Code have limited
dangerous drugs” applicability. The law provides that notwithstanding any law, rule
or regulation to the contrary, the provisions of the Revised Penal
MINOR OFFENDERS Code (Act No. 3814), as amended, shall not apply to the provisions
of this Act, except in the case of minor offenders. Where the
offender is a minor, the penalty for acts punishable by life
3.00 WHO MAY AVAIL OF SUSPENSION OF SENTENCE? imprisonment to death provided herein shall be reclusion perpetua
to death.
A first-time minor offender who is over 15 years of age at the
time he committed an offense punished under Sec. 11 but not more ADDENDUM:
than 18 years at the time judgment of conviction had been rendered
may avail of suspension of sentence. According to R.A. 9265: 1. The identity of the prohibited drug must be established.

“An accused who is over fifteen (15) years of age at the time of Proof of the chain of custody from the time of seizure to
the commission of the offense mentioned in Section 11 of this the time such evidence is presented in court ensures the absence of
Act, but not more than eighteen (18) years of age at the time doubt concerning the integrity of such vital evidence. This requires
when judgment should have been promulgated after having been as a minimum that the police mark the seized item (1) in the
found guilty of said offense, may be given the benefits of a presence of the apprehended violator and (2) immediately upon
suspended sentence.” confiscation. (People vs. Palomares, G.R. No. 200915, February
12, 2014)
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his representative, who shall be required to sign the copies of the
2. Essential elements of illegal sale. inventory and be given a copy thereof. The failure of the agents
to comply with such a requirement raises a doubt whether
In this case, the prosecution failed to prove that each and what was submitted for laboratory examination and presented
every element that constitutes an illegal sale of dangerous drug was in court was actually recovered from the appellants. It negates
present to convict the accused. Upon evaluation of the testimonies the presumption that official duties have been regularly
of PO1 Familara and PO1 Mendoza, it is apparent that there is an performed by the PAOC-TF agents. (People vs. Balibay, G.R.
inconsistency on the identity and number of plastic sachets bought No. 202701, September 10, 2014, Perez, J.)
from the accused. In his statement, PO1 Familara recalled that
upon arrival at the place of arrest, PO1 Mendoza told him that he First, it is not clear from the evidence that the marking,
was able to buy one plastic sachet of shabu from Guinto. On the which was done in the police station, was made in the presence of
other hand, PO1 Mendoza recalled that he was able to buy two the accused or his representative. Although the Court has
plastic sachets instead of one. The pointed inconsistency is not a previously ruled that the marking upon “immediate” confiscation
minor one that can be brushed aside as the discrepancy taints the of the prohibited items contemplates even that which was done at
very corpus delicti of the crime of illegal sale. A vital point of the nearest police station or office of the apprehending team, the
contention, the prosecution’s evidence places in reasonable doubt same must always be done in the presence of the accused or his
the identification of the dangerous drug that was presented in court. representative.
(People vs. Guinto, G.R. No. 198314, September 24, 2014, Perez,
J.) Second, the prosecution failed to duly accomplish the
Certificate of Inventory and to take photos of the seized items
In order to overcome the presumption of regularity, there pursuant to the above-stated provision.
must be clear and convincing evidence that the police officers did
not properly perform their duties or that they were prompted with Third, the Court finds conflicting testimony and glaring
ill motive, none of which exists in this case. (People of the inconsistencies that would cast doubt on the integrity of the
Philippines vs. Mercidita Resurreccion y Torres, G.R. No. 188310 handling of the seized drugs. (People of the Philippines vs. Freddy
June 13, 2013, Leonardo-De Castro, J.) Salonga y Afiado, G. R. No. 194948, September 2, 2013, Sereno,
CJ.)
The Court has held that prior surveillance is not
necessary to render a buy-bust operation legitimate, especially The following are the links that must be established in
when the buy-bust team is accompanied at the target area by the the chain of custody in a buy-bust situation: First, the seizure and
informant. Similarly, the presentation of an informant as a witness marking, if practicable, of the illegal drug recovered from the
is not regarded as indispensable to the success in prosecuting drug- accused by the apprehending officer; Second, the turnover of the
related cases. In this case, the informant had actively participated illegal drug seized by the apprehending officer to the investigating
in the buy-bust operation and her testimony, if presented, would officer; Third, the turnover by the investigating officer of the
merely corroborate the testimonies of the members of the buy-bust illegal drug to the forensic chemist for laboratory examination; and
team. (People vs. Monceda, G.R. No. 176269, November 13, 2013, Fourth, the turnover and submission of the marked illegal drug
Brion, J.) seized from the forensic chemist to the court.

3. What is “Marking” The first crucial link in the chain of custody starts with
the seizure from Enriquez of the dangerous drugs and its
“Marking” is the placing by the apprehending officer of subsequent marking. Nowhere in the documentary and testimonial
some distinguishing signs with his/her initials and signature on the evidence of the prosecution can it be found when these items were
items seized. Consistency with the “chain of custody” rule requires actually marked and if they were marked in the presence of
that the “marking” of the seized items — to truly ensure that they Enriquez or at least his representative.
are the same items that enter the chain and are eventually the ones
offered in evidence — should be done (1) in the presence of the The second link in the chain of custody is the turnover of
apprehended violator (2) immediately upon confiscation. (People the illegal drug by the apprehending officer to the investigating
vs. Somoza, 701 SCRA 525, G.R. No. 197250, July 17, 2013, officer. However, they both failed to identify the person to whom
Leonardo-De Castro, J.) they turned over the seized items. There is no evidence to show
that he was the person who received the seized items from the
4. Chain of custody and objective test. apprehending officers.

To establish the chain of custody in a buy-bust operation, As for the third and the last links, although records show
the prosecution must establish the following links, namely: First, that Chief of Police Erese signed the request for laboratory
the seizure and marking, if practicable, of the illegal drug examination, he was not presented in court to testify as such. The
recovered from the accused by the apprehending officer; Second, testimony of Chief of Police Erese is indispensable because he
the turnover of the illegal drug seized by the apprehending officer could have provided the critical link between the testimony of
to the investigating officer; Third, the turnover by the investigating SPO2 David, and the tenor of the testimony of P/Insp. Dizon,
officer of the illegal drug to the forensic chemist for laboratory which the parties have stipulated on. Moreover, no one testified as
examination; and Fourth, the turnover and submission of the to how the confiscated items were handled and cared for after the
marked illegal drug seized by the forensic chemist to the court. laboratory examination. (People of the Philippines vs. Arturo
Enriquez De los Reyes, G.R. No. 197550, September 25,2013,
The “objective test” is the duty of the prosecution to Leonardo-De Castro, J.)
present a complete picture detailing the buy-bust operation — from
the initial contact between the poseur-buyer and the pusher, the In the case at bar, instead of immediately marking the
offer to purchase, the promise or payment of the consideration, subject drug upon its confiscation, PO2 Tuzon marked it with his
until the consummation of the sale by the delivery of the illegal initials “EAT” only upon arrival at the police station. While the
subject of sale. (People vs. Clara, 702 SCRA 273, G.R. No. failure of arresting officers to mark the seized items at the place of
195528, July 24, 2013, Perez, J.) arrest does not, by itself, impair the integrity of the chain of
custody and render the confiscated items inadmissible in evidence,
6. Effect of Gaps or Lapses in the Chain of Custody of Illegal such circumstance, when taken in light of the several other lapses
Drugs. in the chain of custody that attend the present case, forms part of a
gross, systematic, or deliberate disregard of the safeguards that are
drawn by the law, sufficient to create reasonable doubt as to the
The discussion in People v. Lim is apropos: x xx [A]ny culpability of the accused.
apprehending team having initial custody and control of said drugs
and/or paraphernalia, should immediately after seizure and 6. Failure to immediately mark the seized drugs.
confiscation, have the same physically inventoried and
photographed in the presence of the accused, if there be any, and or

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To be able to create a first link in the chain of custody, merely corroborative evidence, and the absence thereof does not
then, what is required is that the marking be made in the presence create a hiatus in the evidence for the prosecution provided the sale
of the accused and upon immediate confiscation. “Immediate of dangerous drugs is adequately proven and the drug subject of the
confiscation” has no exact definition. Thus, in People v. Gum- transaction is presented before the court. (People vs. Bayan, G.R.
Oyen, testimony that included the marking of the seized items at No. 200987, August 20, 2014, Perez, J.)
the police station and in the presence of the accused was sufficient
in showing compliance with the rules on chain of custody. Marking 12. Actual and constructive possession distinguished.
upon immediate confiscation contemplates even marking at the
nearest police station or office of the apprehending team. (People
of the Philippines vs. Giovanni Ocfemia y Chavez, G.R. No. Exclusive possession or control is not necessary. The
185383, September 25, 2013 , Leonardo-De Castro.) accused cannot avoid conviction if his right to exercise control and
dominion over the place where the contraband is located, is shared
7. Crime of illegal sale of dangerous drugs necessarily includes with another. (People vs. De La Trinidad,G.R. No. 199898,
the crime of illegal possession. September 03, 2014,Perez, J.)

Well-settled in jurisprudence that the crime of illegal sale 13. Effect of failure to offer in evidence the Certificate of
of dangerous drugs necessarily includes the crime of illegal Inventory and the formal request for examination of the
possession of dangerous drugs. confiscated substance.

The Court had further clarified, in relation to the It is true that the prosecution did not formally offer in
requirement of marking the drugs “immediately after seizure and evidence the Certificate of Inventory and the formal request for
confiscation,” that the marking may be undertaken at the police examination of the confiscated substance. Be that as it may, the
station rather than at the place of arrest for as long as it is done in Court has previously held that even if an exhibit is not formally
the presence of the accused and that what is of utmost importance offered, the same “may still be admitted against the adverse party
is the preservation of its integrity and evidentiary value. (People of if, first, it has been duly identified by testimony duly recorded and,
the Philippines vs. Michael Maongco y Yumonda, G.R. No. second, it has itself been incorporated in the records of the
196966, October 23,2013, Leonardo-De Castro, J.) case.” PO3 Velasquez categorically testified that an inventory of
the seized drugs was performed, a corresponding certificate was
8. Failure to make an inventory and to take photographs of the prepared, and a formal request for examination was made. He
subject drug. further narrated that together with the formal request, he submitted
and delivered the confiscated drugs to the crime laboratory. On the
Contrary to the argument of the defense, even the buy- basis of the said formal request, P/Insp. Roderos examined the
bust team’s failure to make an inventory and to take photographs of specimen and she likewise testified on this. Appellant’s counsel
the subject drug did not adversely affect the prosecution’s case. even asked the said prosecution witnesses regarding these
What is essential is that the integrity and evidentiary value of the documents. Considering the said testimonies and the fact that the
seized items which would be utilized in the determination of the documents were incorporated in the records of the case, they are
guilt or innocence of the accused are preserved. (People vs. Loks, therefore admissible against appellant. (People vs. Baturi, G.R.
G.R. No. 203433, November 27, 2013, Reyes, J.) No. 189812, September 01, 2014, Del Castillo, J.)

A proviso was added in the implementing rules that 14. Presentation of confidential informant.
“noncompliance with these requirements under justifiable grounds,
as long as the integrity and the evidentiary value of the seized The non-presentation of the confidential informant as a
items are properly preserved by the apprehending officer/team, witness does not ordinarily weaken the State's case against the
shall not render void and invalid such seizures of and custody over accused. However, if the arresting lawmen arrested the accused
said items.” Pertinently, it is the preservation of the integrity and based on the pre-arranged signal from the confidential informant
evidentiary value of the seized items which must be proven to who acted as the poseur buyer, his non-presentation must be
establish the corpus delicti. (People vs. Cerdon, G.R. No. 201111, credibly explained and the transaction established by other ways in
August 6, 2014, Perez, J.) order to satisfy the quantum of proof beyond reasonable doubt
because the arresting lawmen did not themselves participate in the
Coordination with the PDEA is not an indispensable buy-bust transaction with the accused.
element of a proper buy-bust operation. A buy-bust operation is not
invalidated by mere non-coordination with the PDEA. (People vs. In People vs. Lopez (214 SCRA 323), it was held that
Montevirgen, G.R. No. 189840 December 11, 2013, Del Castillo, there was no need for the prosecution to present the confidential
J.) informer as the poseur-buyer himself positively identified the
accused as the one who sold to him one deck of methamphetamine
9. What does marking upon immediate confiscation mean? hydrochloride or "shabu." The trial court then properly relied on
the testimonies of the police officers despite the decision of the
It begins with the marking of the seized objects to fix its prosecution not to present the informer. (People vs. Andaya, G.R.
identity; Marking upon “immediate” confiscation can reasonably No. 183700, October 13, 2014, Bersamin, J.)
cover marking done at the nearest police station or office of the
apprehending team, especially when the place of seizure is volatile 15. When seized item is “fruit of the poisonous tree”.
and could draw unpredictable reactions from its surroundings.
(People vs. Bautista, G.R. No. 198113 December 11, 2013, Abad, Records have established that both the arrest and the
J.) search were made without a warrant. While the accused has
already waived his right to contest the legality of his arrest, he is
10. Testimony of poseur-buyer not indispensable. not deemed to have equally waived his right to contest the legality
of the search. (Danilo Villanueva y Alcaraz vs. People, G.R. No.
The testimony of the poseur-buyer was not therefore 199042, November 17, 2014, Sereno, CJ. )
indispensable or necessary; it would have been cumulative merely,
or corroborative at best." His testimony can therefore be dispensed 16. Plain view doctrine and its requisites.
with since the illicit transaction was actually witnessed and
adequately proved by the prosecution witnesses. (People vs. The plain view doctrine applies when the following
Marcelo, G.R. No. 181541, August 18, 2014, Del Castillo, J.) requisites concur: (1) the law enforcement officer in search of the
evidence has a prior justification for an intrusion or is in a position
from which he can view a particular area; (2) the discovery of the
11. Failure to present the buy-bust money. evidence in a plain view is inadvertent; and (3) it is immediately
apparent to the officer that the item he observes may be evidence
Failure to present the buy-bust money is not fatal to the of a crime, contraband or otherwise subject to seizure. (Rizaldy
prosecution’s cause. It is not indispensable in drug cases since it is

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Sanchez y Cajili vs. People, G.R. No. 204589, November 19, Under Article I, Section 3(k) of the same statute, the term
2014, Mendoza, J.) “deliver” means “any act of knowingly passing a dangerous drug to
another, personally or otherwise, and by any means, with or
17. With reference to the importation and possession of without consideration.” On the other hand, “sell” as defined in
blasting caps, it seems plain beyond argument that the latter is Section 3(ii) refers to “any act of giving away any dangerous drug
inherent in the former so as to make them juridically identical. and/or controlled precursor and essential chemical whether for
There can hardly be importation without possession. When one money or any other consideration.”
brings something or causes something to be brought into the
country, he necessarily has the possession of it. The possession To establish the guilt of an accused for the illegal
ensuing from the importation may not be actual, but legal, or delivery of a dangerous drug, there must be evidence that “(1) the
constructive, but whatever its character, the importer, in our accused passed on possession of a dangerous drug to another,
opinion, is a possessor in the juristic sense and he is liable to personally or otherwise, and by any means; (2) such delivery” is
criminal prosecution. not authorized by law; and (3) the accused knowingly made the
delivery with or without consideration.
Applying the aforequoted ruling, this Court finds that
while appellants cannot be held liable for the offense of illegal The presentation of the marked money is immaterial in
importation charged in the information, their criminal liability for this case since the crime of illegal delivery of a dangerous drug can
illegal possession, if proven beyond reasonable doubt, may be committed even without consideration or payment. (People vs.
nevertheless be sustained. As previously mentioned, the crime of Reyes, G.R. No. 194606, February 18, 2015, Del Castillo, J.)
importation of regulated drugs is committed by importing or
bringing any regulated drug into the Philippines without being
authorized by law. Indeed, when one brings something or causes
something to be brought into the country, he necessarily has 20. Chain of Custody.
possession of the same. Necessarily, therefore, importation can
never be proven without first establishing possession, affirming the In the prosecution of illegal possession of dangerous
fact that possession is a condition sine qua non for it would rather drugs, the dangerous drug itself constitutes the very corpus delicti
be unjust to convict one of illegal importation of regulated drugs of the offense and, in sustaining a conviction therefor, the identity
when he is not proven to be in possession thereof. and integrity of the corpus delicti must definitely 12. Actual and
constructive possession distinguished.
In a similar manner, considering that illegal possession is
likewise an element of and is necessarily included in illegal
importation of dangerous drugs, convicting appellants of the In both cases of illegal sale and illegal possession of
former, if duly established beyond reasonable doubt, does not dangerous drugs, the prosecution must show the chain of custody
amount to a violation of their right to be informed of the nature and over the dangerous drug in order to establish the corpus delicti,
cause of accusation against them. Indeed, where an accused is which is the dangerous drug itself. The chain of custody rule comes
charged with a specific crime, he is duly informed not only of such into play as a mode of authenticating the seized illegal drug as
specific crime but also of lesser crimes or offenses included evidence.
therein.
A substantial gap in the chain of custody renders the
The elements of illegal possession of regulated drugs are identity and integrity of the corpus delicti dubious. (Lopez vs.
as follows: (a) the accused is in possession of an item or object People,G.R. No. 188653, January 29, 2014,Perez, J.)
which is identified to be a regulated drug; (b) such possession is
not authorized by law; and (c) the accused freely and consciously First link of the chain, the seizure and marking, if
possessed the regulated drug. The evidence on record clearly practicable, of the illegal drug recovered from the accused by the
established that appellants were in possession of the bags apprehending officer.
containing the regulated drugs without the requisite authority. As
mentioned previously, on the date of appellants’ arrest, the Second link of the chain, the turnover of the illegal drug
apprehending officers were conducting a surveillance of the coast seized by the apprehending officer to the investigating officer.
of Ambil Island in the Municipality of Looc, Occidental Mindoro,
upon being informed by the Municipality’s Barangay Captain that Third link of the chain, the turnover by the investigating
a suspicious-looking boat was within the vicinity. Not long after, officer of the illegal drug to the forensic chemist for laboratory
they spotted two (2) boats anchored side by side, the persons on examination.
which were transferring cargo from one to the other. Interestingly,
as they moved closer to the area, one of the boats hurriedly sped Fourth link of the chain, the turnover and submission of
away. Upon reaching the other boat, the police officers found the the marked illegal drug seized by the forensic chemist to the court.
appellants with several transparent plastic bags containing what (People vs. Dahil and Castro, G.R. No. 212196, January 12,
appeared to be shabu which were plainly exposed to the view of 2015, Mendoza, J.)
the officers. Clearly, appellants were found to be in possession of
the subject regulated drugs. (People vs. Chi Chan Liu and Hui It has already been held that “the infractions of the so-
Lao Chung, G.R. No. 189272, January 21, 2015, Peralta, J.) called Miranda rights render inadmissible only the extrajudicial
confession or admission made during custodial investigation.”
18. Decoy Solicitation. Here, appellant’s conviction was based not on his alleged
uncounseled confession or admission but on the testimony of the
The chain of custody is not established solely by prosecution witness. (People vs. Bio, G.R. No. 195850, February
compliance with the prescribed physical inventory and 16, 2015, Del Castillo, J.)
photographing of the seized drugs in the presence of the
enumerated persons. The Implementing Rules and Regulations of
R. A. No. 9165 on the handling and disposition of seized
dangerous drugs states: x x x Provided, further, that non-
compliance with these requirements under justifiable grounds, as
long as the integrity and evidentiary value of the seized items are
properly preserved by the apprehending officer/team, shall not
render void and invalid such seizures of and custody over said
items. (People vs. Rosauro, G.R. No. 209588, February 18, 2015,
Perez, J.)

19. What does “deliver” mean?

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CHAPTER VIII. ILLEGAL POSSESSION OF FIREARM Possession of firearm and ammunition without the
PD 1866 as amended by R.A. 8294 requisite authority or license, coupled with animus possidendi, is a
violation of PD 1866. People vs. Lian, 255 SCRA 532
[BAR Q. 2011, 2002, 2000, 1998]
A temporary, incidental, casual, or harmless possession
or control of a firearm cannot be considered a violation of a statute
prohibiting the possession of this kind of weapon. People vs. De
Gracia, 233 SCRA 716
1.00 WHAT ARE THE ELEMENTS OF THE CRIME OF
ILLEGAL POSSESSION OF FIREARM AND To be guilty of the crime of illegal possession of firearms
AMMUNITION? and ammunition, one does not have to be in actual physical
In illegal possession of firearm and ammunition, the prosecution possession thereof. The law does not punish physical possession
has the burden of proving the twin elements of: alone but possession in general, which includes constructive
(1) the existence of the subject firearm and ammunition, and possession or the subjection of the thing to the owner’s control.
(2) the fact that the accused who possessed or owned the Evangelista vs. People, G.R. No. 163267, May 5, 2010
same does not have the corresponding license for it.
Valeroso vs. People, 546 SCRA 450, February 22, 2008 1.03 DIFFERENTIATE CRIMINAL INTENT FROM INTENT
TO POSSESS.
Illustrative case
BAR Q. [2011] X, Y and Z agreed among themselves to attack A distinction should be made between criminal intent
and kill A, a police officer,but they left their home-made guns and intent to possess. While mere possession, without criminal
in their vehicle before approaching him. What crime have they intent, is sufficient to convict a person for illegal possession of a
committed? firearm, it must still be shown that there was animus possidendi or
an intent to possess on the part of the accused. Such intent to
A. Conspiracy to commit indirect assault. possess is, however, without regard to any other criminal or
B. Attempted direct assault. felonious intent which the accused may have harbored in
C. Conspiracy to commit direct assault. possessing the firearm. Criminal intent here refers to the intention
D. Illegal possession of firearms. of the accused to commit an offense with the use of an unlicensed
firearm. This is not important in convicting a person under
1.01 IS OWNERSHIP AN ELEMENT OF THIS CRIME? Presidential Decree No. 1866. Hence, in order that one may be
No. Ownership is not an essential element of illegal found guilty of a violation of the decree, it is sufficient that the
possession of firearm. What the law requires is merely possession accused had no authority or license to possess a firearm, and that
which includes not only physical possession but also constructive he intended to possess the same, even if such possession was made
possession or the subjection of the thing to one’s control and in good faith and without criminal intent. Elenita C. Fajardo vs.
management. People vs.De Gracia, 233 SCRA 716 People, G.R. No. 190889, January 10, 2011

Illustrative case 1.04 ASIDE FROM A FIREARM WITHOUT A LICENSE,

WHAT DOES UNLICENSED FIREARM INCLUDE?
BAR Q. [2000] A has long been wanted by the police
authorities for various crimes committed by him. Acting on
The term unlicensed firearm shall include:
an information by a tipster, the police proceeded to an
apartment where A was often seen. The tipster also warned
the policeman that A was always armed. At the given address, 1) firearms with expired license; or
a lady who introduced herself as the elder sister of A, opened
the door and let the policeman in. inside the team found A 2) unauthorized use of licensed firearm in the
sleeping on the floor. Immediately beside him was a clutch commission of the crime.
bag which when opened, contained a .38 caliber paltic revolver
and a hand grenade. After verification, the authorities
Unlicensed firearm no longer simply means a firearm
discovered that A was not a licensed holder of the .38 caliber
without a license duly issued by lawful authority. The scope of the
paltik revolver. As for the hand grenade, it was established
term has been expanded in Section 5 of Republic Act No. 8294 as:
that only military personnel are authorized to carry hand
(1) firearm with expired license, or (2) unauthorized use of licensed
grenades. Subsequently, A was charged with the crime of
firearm in the commission of the crime. People vs. Molina, 292
illegal possession of firearms and ammunition. During trial, A
SCRA 742
maintained that the bag containing the unlicensed firearm and
hand grenade belonged to A, his friend, and that he was not in
It follows therefore that unauthorized use of weapon
actual possession thereof at the time he was arrested. Are the
which has been duly licensed in the name of its owner/possessor
allegations meritorious? Explain.
may still aggravate the resultant/crime. People vs. Moliva, 292
Suggested Answer: No, A's allegation that he does not
SCRA 742
own the firearm is of no significance. It is a settled rule that
ownership is not an essential element in the crime of illegal
possession. 1.05 IS PROOF OF UNLICENSED FIREARM AN
Further, his defense that he was not in possession of the ESSENTIAL ELEMENT OF PD 1866?
same at that time he was arrested has no leg to stand on.
Possession includes not only actual physical possession but also Yes. The lack of a license to possess firearm is an
constructive possession where the firearm and explosives are essential element of the crime of PD 1866 as amended by RA 8294
subject to one's control and management. As long as intent to whether as an independent crime or as an aggravating circumstance
possess is proved, A can be held liable. in murder or homicide. People vs. Perez, G.R. No. 134485,
October 23, 2003
1.02 EXPLAIN THE CONCEPT OF POSSESSION.
The kind of possession punishable under PD 1866 is one
where the accused possessed a firearm either physically or It is settled that the lack or absence of a license is an
constructively with animus possidendi or intention to possess. It is essential ingredient of the crime of illegal possession of firearm.
not enough that the firearm was found in the possession of the Sasot vs. Yuson, 592 SCRA 368, July 13, 2009
1.06 WHAT IS THE CORPUS DELICTI IN ILLEGAL
accused who held the same temporarily and casually or for the
purpose of surrendering the same. People vs. Dela Rosa, 90 SCAD POSSESSION OF FIREARM?
143 The corpus delicti in the crime of illegal possession of
firearms is the accused's lack of license or permit to possess or
carry the firearm, as possession itself is not prohibited by law. To
establish the corpus delicti, the prosecution has the burden of

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proving that the firearm exists and that the accused who owned or committed by the person arrested.” Sison vs. People, 666 SCRA
possessed it does not have the corresponding license or permit to 645(2012)
possess or carry the same. Sayco vs. People, 547 SRA 368, March Again, if the “other crime” is murder or homicide, illegal
3, 2008 possession of firearms becomes merely an aggravating
circumstance, not a separate offense.
1.07 HOW IS THE SECOND ELEMENT OF THE CRIME
PROVEN? BAR Q. [2009] TRUE or FALSE. Answer TRUE if the
statement is true, or FALSE if the statement is false. Explain
It can be proven by the testimony or certification of a your answer in not more than two (2) sentences.
representative of the PNP Firearms and Explosive Unit that the
accused was not a licensee of the firearm in question. People vs. The use of an unlicensed firearm in homicide is
Narvasa, 298 SCRA 638 considered a generic aggravating circumstance which can be
offset by an ordinary mitigating circumstance.
In Valeroso vs. People, 546 SCRA 450, February 22,
2008, the Supreme Court ruled that either the testimony of a Suggested Answer: No, the use of an unlicensed
representative of, or a certification from, the Philippine National firearm in murder or homicide constitutes as a special
Police (PNP) Firearms and Explosive Office attesting that a person aggravating circumstance which may not be offset by an ordinary
is not a licensee of any firearm would suffice to prove beyond mitigating circumstances. (People vs. Palaganas, G.R. No.
reasonable doubt the second element of possession of illegal 165483; People vs. Castillo, G.R.No. 131592-93, February 15,
firearms. 2000).

1.08 IS THE NON-PRESENTATION OF THE SUBJECT However, in People vs. Dela Cruz, December 2000, the
FIREARM FATAL TO THE PROSECUTION’S Supreme Court ruled that the aggravating circumstance of the use
CAUSE? of firearm is effectively offset by the mitigating circumstance of
No because the existence of the firearm can be voluntary surrender.
established by testimony even without the presentation of the said
firearm. People vs. Narvasa, 100 SCAD 745
1.11 WHAT IS THE CONSEQUENCE IF ILLEGAL
POSSESSION OF FIREARM IS IN FURTHERANCE
1.09 WHAT IS THE CONSEQUENCE IF HOMICIDE OR OF OR INCIDENT TO, OR IN CONNECTION WITH
MURDER IS COMMITTED WITH THE USE OF AN THE CRIME OF REBELLION OR INSURRECTION,
UNLICENSED FIREARM? (SEC.1) SEDITION, OR ATTEMPTED COUP D'ETAT?
(SEC.1)
1. Where the murder or homicide results from the use of
an unlicensed firearm, the crime is no longer qualified illegal The use of an unlicensed firearm shall be absorbed. Section 1
possession, but murder or homicide, as the case may be, and the of Presidential Decree No. 1866 as amended by Republic Act No.
use of the unlicensed firearm shall be appreciated as a mere 8294 expressly states:
aggravating circumstance. People vs. Avecilla, 351 SCRA 462
"If the violation of this Section is in furtherance of or
2. The use of an unlicensed firearm shall be considered incident to, or in connection with the crime of rebellion or
as an aggravating circumstance only. There can be no separate insurrection, sedition, or attempted coup d'etat, such violation
conviction of illegal possession of firearm. Section 1 of shall be absorbed as an element of the crime of rebellion, or
Presidential Decree No. 1866 as amended by Republic Act No. insurrection, sedition, or attempted coup d'etat.”
8294 expressly provides: "If homicide or murder is committed with
the use of an unlicensed firearm, such use of an unlicensed firearm
shall be considered as an aggravating circumstance. 1.12 EXPLAIN PRESUMPTION OF ILLEGAL
MANUFACTURE OF FIREARMS OR AMMUNITION
3. In People vs. Macoy Jr., 338 SCRA 217, the Supreme (SEC.2).
Court enunciated that in the light of the enactment of Republic Act
No. 8294, amending Presidential Decree No. 1866, there can be no The presumption of illegal manufacture of firearms or
separate conviction of the crime of illegal possession of firearm if ammunition is embodied in section 2. It provides:
homicide or murder is committed with the use of an unlicensed
firearm. “The possession of any machinery, tool or instrument
used directly in the manufacture of firearms or ammunition, by
4. In another case, the Court held that there can be no any person whose business or employment does not lawfully deal
separate offense of simple illegal possession of firearms where with the manufacture of firearms or ammunition, shall be prima
direct assault with multiple attempted homicide was committed. facie evidence that such article is intended to be used in the
People vs. Ladjaalam, 340 SCRA 617 unlawful/illegal manufacture of firearms or ammunition.”
5. However, it is necessary that said fact is charged in the
information. The accused cannot be convicted of homicide or 1.13 WHEN IS THE USE OF EXPLOSIVES, DETONATION
murder with “the use of the unlicensed firearm as aggravating” AGENTS OR INCENDIARY DEVICES
where said felonies are not charged in the information but merely CONSIDERED AS AN AGGRAVATING
mentioned as the result of the use of the unlicensed firearm. People CIRCUMSTANCE? (SEC.3)
vs. Avecilla, 351 SCRA 462
When a person commits any of the crimes defined in the
1.10 IF AN UNLICENSED FIREARM IS USED IN THE Revised Penal Code or special laws with the use of the explosives
COMMISSION OF ANY CRIME, CAN THERE BE A (mentioned in Sec.3), detonation agents or incendiary devices,
SEPARATE OFFENSE OF SIMPLE ILLEGAL which results in the death of any person or persons, the use of such
POSSESSION OF FIREARMS? explosives, detonation agents or incendiary devices shall be
considered as an aggravating circumstance.
No. In People v. Ladjaalam, 340 SCRA 617 (2000), the
Supreme Court laid down the correct interpretation of the law and
1.14 EXPLAIN PRESUMPTION OF UNLAWFUL
ruled: “x x x A simple reading thereof shows that if an unlicensed
MANUFACTURE (SEC.4).
firearm is used in the commission of any crime, there can be no
separate offense of simple illegal possession of firearms.”
The law is clear: the accused can be convicted of simple Section 4 provides the presumption of unlawful
illegal possession of firearms, provided that “no other crime was manufacture. It reads:

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“The possession of any machinery, tool or instrument OBSTRUCTION OF JUSTICE
directly used in the manufacture of explosives, by any person Presidential Decree No. 1829
whose business or employment does not lawfully deal with the [BAR 2010, 2005]
manufacture of explosives shall be prima facie evidence that ___________________________________________________
such article is intended to be used in the unlawful/illegal
manufacture of explosives.” 1.00 WHO MAY BE LIABLE FOR OBSTRUCTION OF
JUSTICE ?( SEC.1)
ADDENDUM:
“Loose firearm” refers to an unregistered firearm, an Any person who knowingly or willfully obstructs,
obliterated or altered firearm, firearm which has been lost or impedes, frustrates or delays the apprehension of suspects and
stolen, illegally manufactured firearms, registered firearms in the investigation and prosecution of criminal cases.
the possession of an individual other than the licensee and
those with revoked licenses in accordance with the rules and
regulations. (R.A. No. 10591) 1.01 WHAT DOES SECTION 1 OF P.D. 1829 PROVIDE?
USE OF LOOSE FIREARM IN THE COMMISSION OF A
CRIME (Sec. 29 of R.A. No. 10591) Section 1 of P.D. 1829 reads:
The use of loose firearm, when inherent in the commission of a
crime punishable under the Revised Penal Code or other “The acts punishable therein are as follows:
special laws, shall be considered as an aggravating
circumstance. Provided that:
-If the crime committed with the use of a loose firearm is (a) preventing witnesses from testifying in any criminal
penalized by the law with a maximum penalty which is lower proceeding or from reporting the commission of any offense or
than that prescribed in Sec. 28 of R.A. No. 10591, the penalty the identity of any offender/s by means of bribery,
for illegal possession of firearm shall be imposed in lieu of the misrepresentation, deceit, intimidation, force or threats;
penalty for the crime charged.
-If the crime committed with the use of loose firearm is (b) altering, destroying, suppressing or concealing any paper,
penalized by the law with a maximum penalty which is equal to record, document, or object, with intent to impair its verity,
that imposed under Sec. 28 of R.A. No. 10591, the penalty of authenticity, legibility, availability, or admissibility as evidence
prision mayor in its minimum period shall be imposed in in any investigation of or official proceedings in, criminal
addition to the penalty for the crime punishable under the cases, or to be used in the investigation of, or official
Revised Penal Code or other special laws of which he/she is proceedings in, criminal cases;
found guilty.
(c) harboring or concealing, or facilitating the escape of, any
person he knows, or has reasonable ground to believe or
suspect, has committed any offense under existing penal laws
in order to prevent his arrest prosecution and conviction;

(d) publicly using a fictitious name for the purpose of

concealing a crime, evading prosecution or the execution of a
judgment, or concealing his true name and other personal
circumstances for the same purpose or purposes;

(e) delaying the prosecution of criminal cases by obstructing

the service of process or court orders or disturbing
proceedings in the fiscal's offices, in Tanodbayan, or in the
courts;

(f) making, presenting or using any record, document, paper

or object with knowledge of its falsity and with intent to affect
the course or outcome of the investigation of, or official
proceedings in, criminal cases;

(g) soliciting, accepting, or agreeing to accept any benefit in

consideration of abstaining from, discounting, or impeding the
prosecution of a criminal offender;

(h) threatening directly or indirectly another with the

infliction of any wrong upon his person, honor or property or
that of any immediate member or members of his family in
order to prevent such person from appearing in the
investigation of, or official proceedings in, criminal cases, or
imposing a condition, whether lawful or unlawful, in order to
prevent a person from appearing in the investigation of or in
official proceedings in, criminal cases;

(i) giving of false or fabricated information to mislead or

prevent the law enforcement agencies from apprehending the
offender or from protecting the life or property of the victim;
or fabricating information from the data gathered in
confidence by investigating authorities for purposes of
background information and not for publication and
publishing or disseminating the same to mislead the
investigator or to the court.”

1.02 GIVE AND EXPLAIN THE ACTS PUNISHABLE

UNDER SECTION 1.

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Specifically, the acts punishable therein are as follows: proceedings in, criminal cases, or imposing a condition, whether
lawful or unlawful, in order to prevent a person from appearing in
(a) preventing witnesses from testifying in any criminal the investigation of or in official proceedings in, criminal cases;
proceeding or from reporting the commission of any
offense or the identity of any offender/s by means of (i) giving of false or fabricated information to mislead or prevent
bribery, misrepresentation, deceit, intimidation, force or the law enforcement agencies from apprehending the offender or
threats; from protecting the life or property of the victim; or fabricating
information from the data gathered in confidence by investigating
(b) altering, destroying, suppressing or concealing any authorities for purposes of background information and not for
paper, record, document, or object, with intent to impair publication and publishing or disseminating the same to mislead
its verity, authenticity, legibility, availability, or the investigator or to the court.
admissibility as evidence in any investigation of or
official proceedings in, criminal cases, or to be used in 1.05 WHAT IS THE EFFECT IF THERE IS ANOTHER LAW
the investigation of, or official proceedings in, criminal WHICH PUNISHES THE ACT WITH A HIGHER
cases; PENALTY?(SEC.1)

1.03 Illustrative case of 1(b). If any of the acts mentioned herein is penalized by any
other law with a higher penalty, the higher penalty shall be
BAR Q. [2005] During a PNP buy-bust operation, Cao Shih imposed.
was arrested for selling 20 grams of methamphetamine
hydrochloride (shabu) to a poseur-buyer. Cao Shih, through 1.06 IF A PERSON IS NOT FOUND LIABLE AS AN
an intermediary, paid Patrick, the Evidence Custodian of the ACCESSORY, MAY HE INSTEAD BE LIABLE
PNP Forensic Chemistry Section, the amount of ₱50,000.00 in UNDER PD 1829?
consideration for the destruction by Patrick of the drug.
Patrick managed to destroy the drug. State with reasons
whether Patrick committed the following crimes. X X X Yes, he may be liable. Even if a person is found not
Obstruction of Justice under PD 1829. criminally liable as an accessory under Article 20 of the Revised
Penal Code, he may, however, be liable for acts punished under PD
Suggested Answer: Patrick is liable for obstruction of 1829.
justice under Section 1 (b) of PD 1829 because he destroyed the
evidence intended to be used in in the criminal proceeding. 1.07 DIFFERENTIATE AN ACCESSORY FROM A
Query: Is a public office an essential element under Sec.1(b)? PRINCIPAL IN PD 1829.
While public office is not an essential element of the
offense of obstruction of justice under Sec. 1(b) of P.D.1829, the An accessory under Article 20 of the Revised Penal Code
circumstances surrounding the commission of the offense alleged is exempt from criminal liability when the principal is his a) spouse
to have been committed by accused official are such, however, that b) ascendant c) descendant d) legitimate, natural or adopted brother
the offense may not have been committed had said accused not sister or relative by affinity within the same degree. These benefits
held the office of mayor. are not available in PD 1829.

(a) harboring or concealing, or facilitating the escape of, any

person he knows, or has reasonable ground to believe or
suspect, has committed any offense under existing penal
laws in order to prevent his arrest prosecution and
conviction;

1.04 Illustrative case of 1(c).

BAR Q. [2011] A private person who assists the escape of a
person who committed robbery shall be liable-

A. as a principal to the crime of robbery.

B. as an accessory to the crime of robbery.
C. as a principal to the crime of obstruction of justice.
D. as an accessory to the crime of obstruction of justice.

(d) publicly using a fictitious name for the purpose of concealing a

crime, evading prosecution or the execution of a judgment, or
concealing his true name and other personal circumstances for the
same purpose or purposes;

(e) delaying the prosecution of criminal cases by obstructing the

service of process or court orders or disturbing proceedings in the
fiscal's offices, in Tanodbayan, or in the courts;

(f) making, presenting or using any record, document, paper or

object with knowledge of its falsity and with intent to affect the
course or outcome of the investigation of, or official proceedings
in, criminal cases;

(g) soliciting, accepting, or agreeing to accept any benefit in

consideration of abstaining from, discounting, or impeding the
prosecution of a criminal offender;

(h) threatening directly or indirectly another with the infliction of

any wrong upon his person, honor or property or that of any
immediate member or members of his family in order to prevent
such person from appearing in the investigation of, or official
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CHAPTER VII. THE ANTI WIRE-TAPPING ACT CHAPTER VII. THE ANTI-FENCING LAW OF 1979
Republic Act No. 4200 Presidential Decree No. 1612
___________________________________________________
[BAR 2010, 2009, ’95, 1993, 1990,
1.00 WHAT ACTS ARE PUNISHED UNDER THIS ACT? 1987, 1985]
(Sec. 1) ______________________________________________

It shall be unlawful for any person, not being authorized

by all the parties to any private communication or spoken word, to 1.00 WHAT IS THE CRIME OF "FENCING". (Sec. 2)
tap any wire or cable, or by using any other device or arrangement,
to secretly overhear, intercept, or record such communication or Section 2 of this Act defines fencing as:
spoken word by using a device commonly known as a dictaphone
or dictagraph or dictaphone or walkie-talkie or tape recorder, or “It is the act of any person who, with intent to gain for
however otherwise described: himself or for another, shall buy, receive, possess, keep, acquire,
conceal, sell or dispose of, or shall buy and sell, or in any other
It shall also be unlawful for any person, be he a manner deal in any article, item, object or anything of value
participant or not in the act or acts penalized in the next preceding which he knows, or should be known to him, to have been
sentence, to knowingly possess any tape record, wire record, disc derived from the proceeds of the crime of robbery or theft.”
record, or any other such record, or copies thereof, of any
communication or spoken word secured either before or after the 1.01 BAR Q. [1995] WHAT ARE THE ELEMENTS OF
effective date of this Act in the manner prohibited by this law; or to FENCING?
replay the same for any other person or persons; or to communicate The elements of fencing are:
the contents thereof, either verbally or in writing, or to furnish (a) a crime of robbery or theft has been committed;
transcriptions thereof, whether complete or partial, to any other (b) accused, who is not a principal or accomplice in the crime,
person: buys, receives, possess, keeps, acquires, conceals, or disposes or
buys and sells or in any manner deals in any article, item object
Provided, That the use of such record or any copies or anything of value, which has been derived from the proceeds
thereof as evidence in any civil, criminal investigation or trial of of said crime;
offenses mentioned in section 3 hereof, shall not (c) the accused knows or should have known that said article,
item, object or anything of value has been derived from the
1.02 WHEN IS THE COMMISSION OF SUCH ACTS proceeds of the crime of robbery or theft; and
DEEMED LAWFUL? (Sec.3) (d) there is, on the part of the accused, intent to gain for himself
or for another.
It is deemed lawful when committed by any peace 1.02 ARE THE CRIMES OF ROBBERY AND THEFT
officer, who is authorized by a written order of the Court, to SEPARATE AND DISTINCT FROM FENCING?
execute any of the acts declared to be unlawful in the two
preceding sections in cases involving the crimes of treason,
espionage, provoking war and disloyalty in case of war, piracy, No, the crimes of robbery and theft, on the one hand, and
mutiny in the high seas, rebellion, conspiracy and proposal to fencing, on the other, are separate and distinct offenses. Before P.D.
commit rebellion, inciting to rebellion, sedition, conspiracy to No. 1612, a fence could only be prosecuted for and held liable as
commit sedition, inciting to sedition, kidnapping as defined by the an accessory, as the term is defined in Article 19 of the Revised
Revised Penal Code, and violations of Commonwealth Act No. Penal Code. The penalty applicable to an accessory is obviously
616, punishing espionage and other offenses against national light under the rules prescribed in Articles 53, 55, and 57 of the
security. Revised Penal Code, subject to the qualification set forth in Article
60 thereof.
1.03 IS THE COMMUNICATION OR INFORMATION
OBTAINED IN VIOLATION OF THIS ACT Evidently, the accessory in the crimes of robbery and
ADMISSIBLE IN EVIDENCE? (Sec.4) theft could be prosecuted as such under the Revised Penal Code or
under P.D. No. 1612. However, in the latter case, he ceases to be a
mere accessory but becomes a principal in the crime of fencing.
No. It shall not be admissible in evidence in any judicial, Elsewise stated, the crimes of robbery and theft, on the one hand,
quasi-judicial, legislative or administrative hearing or and fencing, on the other, are separate and distinct offenses.
investigation.

The state may thus choose to prosecute him either under

the Revised Penal Code or P.D. No. 1612, although the preference
for the latter would seem inevitable considering that fencing is a
malum prohibitum, and P.D. No. 1612 creates a presumption of
fencing and prescribes a higher penalty based on the value of the
property. Dizon-Pamintuan vs. People, 234 SCRA 63(1994)

1.03 EXPLAIN THE DIFFERENCE AND SIMILARITY

BETWEEN A FENCE AND AN ACCESSORY TO
THEFT OR ROBBERY?
a. A fence is punished as a principal under PD, No 1612
and the penalty is higher, whereas an accessory to robbery or theft
under the Revised Penal Code is punished two degrees lower than
the principal as a general rule.
b. Fencing is a malum prohibitum and therefore there is
no need to prove criminal intent of the accused. Good faith is not a
defense. In accessory to robbery or theft under the Revised Penal
Code, intent is an element of the crime and therefore, good faith is
a proper defense.
C. All the acts of one who is an accessory to the crimes
of robbery or theft are included in the acts defined as fencing.
Corollarily, the accessory in the crimes of robbery or theft could be

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prosecuted as such under the Revised Penal Code or as a fence
under PD No. 1612. 1.12 WHAT IS THE PRESUMPTION WHEN A
STOREOWNER DISPLAYS ARTICLES?
1.04 EXPLAIN THE ELEMENT OF KNOWLEDGE OF A When a storeowner displays articles, it is assumed that he
PARTICULAR FACT. is doing so with the intention of selling them.

When knowledge of the existence of a particular fact is 1.13 DISCUSS THE NECESSITY OF SECURING A
an element of an offense, such knowledge is established if a person CLEARANCE OR PERMIT. (SEC. 6)
is aware of a high probability of its existence unless he actually
believes that it does not exist. Dizon-Pamintuan vs. People, 234 Section 6 underscores the importance of securing a
SCRA 63(1994) clearance or permit in dealing with the buy and sell activities.

1.05 WHAT DO THE WORDS “SHOULD KNOW” 1.14 UNDER THE SAID RULES AND REGULATIONS, TO
DENOTE? WHAT ITEMS DOES THE TERM " USED
SECONDHAND ARTICLE"REFER TO?
The words “should know” denote the fact that person of
reasonable prudence and intelligence would ascertain the fact in It shall refer to any goods, article, item, object or anything of
performance of his duty to another or would govern his conduct value obtained from an unlicensed dealer or supplier, regardless of
upon assumption that such fact exists. whether the same has actually or in fact been used.

Knowledge refers to a mental state of awareness about a

fact. Since the court cannot penetrate the mind of an accused and
state with certainty what is contained therein, it must determine
such knowledge with care from the overt acts of that person. And
given two equally plausible states of cognition or mental
awareness, the court should choose the one which sustains the
constitutional presumption of innocence. Dizon-Pamintuan vs.
People, 234 SCRA 63(1994)

1.06 IS THE STOLEN PROPERTY INDISPENSABLE TO

PROVE FENCING?

No. The stolen property subject of the charge is not

indispensable to prove fencing.

Fencing is malum prohibitum, and P.D. No. 1612 creates

a prima facie presumption of fencing from evidence of possession
by the accused of any good, article, item, object or anything of
value which has been the subject of robbery or theft, and prescribes
a higher penalty based on the value of the property. The stolen
property subject of the charge is not indispensable to prove
fencing. It is merely corroborative of the testimonies and other
evidence adduced by the prosecution to prove the crime of fencing.
Francisco vs. People, 434 SCRA 122(2004)

1.07 MUST INTENT TO GAIN BE PROVED?

Intent to gain need not be proved in crimes punishable
by a special law such as P.D. 1612.

1.08 MUST PURCHASE OF THE STOLEN ARTICLES BE

PROVED?
The law does not require proof of purchase of the stolen
articles by petitioner, as mere possession thereof is enough to give
rise to a presumption of fencing. Dunlao, Sr. vs. Court of Appeals,
260 SCRA 788(1996)

1.09 WHAT DOES THE TERM "FENCE" INCLUDE? (Sec. 2)

It includes any person, firm, association, corporation or

partnership or other organization who/which commits the act of
fencing.

1.10 IF THE FENCE IS A JURIDICAL PERSON, WHO

SHOULD BE LIABLE? (SEC. 4)

If the fence is a partnership, firm, corporation or association,

the president or the manager or any officer thereof who knows or
should have known the commission of the offense shall be liable.

1.11 WHAT IS THE PRESUMPTION OF FENCING? (SEC. 5)

Section 5 provides for the presumption of fencing:

“Mere possession of any good, article, item, object, or anything
of value which has been the subject of robbery or thievery shall
be prima facie evidence of fencing”
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