J.A.B. Bulao & Associates

ARNEL U. TY, MARIE ANTONETTE TY, JASON ONG, WILLY DY, AND ALVIN TY VS. NBI SUPERVISING AGENT MARVIN E. DE JEMIL, PETRON GASUL DEALERS ASSOCIATION, AND TOTALGAZ DEALERS ASSOCIATION (G.R. NO. 182147, 15 DECEMBER 2010) SUBJECTS: REVIEW OF DOJ RESOLUTION BY CA; PROBABLE CAUSE; CRIMINAL LIABILITY OF BOARD OF DIRECTORS; EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS.

DOCTRINES:

DETERMINATION OF PROBABLE CAUSE SUBJECT TO JUDICIAL REVIEW

For one, while it is the consistent principle in this jurisdiction that the determination of probable cause is a function that belongs to the public prosecutor^[1][48] and, ultimately, to the Secretary of Justice, who may direct the filing of the corresponding information or move for the dismissal of the case;^[2][49] such determination is subject to judicial review where it is established that grave abuse of discretion tainted the determination. 

Finding of probable cause by the DOJ can be appealed to Office of the president. Resolution of DOJ SECRETARY IS PRESUMABLY THAT OF THE PRESIDENT UNLESS DISAPPROVED BY HIM. BUT IN CASE THERE IS GRAVE ABUSE OF DISCRETION DOJ RESOLUTION CAN BE BROUGHT ON CERTIORARI AT  C.A.

For another, there is no question that the Secretary of Justice is an alter ego of the President who may opt to exercise or not to exercise his or her power of review over the former’s determination in criminal investigation cases.  As aptly noted by Agent De Jemil, the determination of probable cause by the Secretary of Justice is, under the doctrine of qualified political agency, presumably that of the Chief Executive unless disapproved or reprobated by the latter.

 Chan v. Secretary of Justice^[3][50] delineated the proper remedy from the determination of the Secretary of Justice.  Therein, the Court, after expounding on the policy of non-interference in the determination of the existence of probable cause absent any showing of arbitrariness on the part of the public prosecutor and the Secretary of Justice, however, concluded, citing Alcaraz v. Gonzalez^[4][51] and Preferred Home Specialties, Inc. v. Court of Appeals,^[5][52] that an aggrieved party from the resolution of the Secretary of Justice may directly resort to judicial review on the ground of grave abuse of discretion, thus:

x x x [T]he findings of the Justice Secretary may be reviewed through a petition for certiorari under Rule 65 based on the allegation that he acted with grave abuse of discretion.  This remedy is available to the aggrieved party.^[6][53]  (Emphasis supplied.)

DEFINITION OF PROBABLE CAUSE: IT REQUIRES MORE THAN BARE SUSPICION BUT LESS THAN EVIDENCE WHICH WOULD JUSTIFY A CONVICTION

“. .  Probable cause has been defined as the existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.^[7][66]  After all, probable cause need not be based on clear and convincing evidence of guilt, as the investigating officer acts upon reasonable belief—probable cause implies probability of guilt and requires more than bare suspicion but less than evidence which would justify a conviction.^[8][67]”

LIABILITY OF BOARD OF DIRECTORS FOR CRIMINAL ACT

“It may be noted that Sec. 4 above enumerates the persons who may be held liable for violations of the law, viz:  (1) the president, (2) general manager, (3) managing partner, (4) such other officer charged with the management of the business affairs of the corporation or juridical entity, or (5) the employee responsible for such violation.  A common thread of the first four enumerated officers is the fact that they manage the business affairs of the corporation or juridical entity.  In short, they are operating officers of a business concern, while the last in the list is self-explanatory. 

It is undisputed that petitioners are members of the board of directors of Omni at the time pertinent.  There can be no quibble that the enumeration of persons who may be held liable for corporate violators of BP 33, as amended, excludes the members of the board of directors.  This stands to reason for the board of directors of a corporation is generally a policy making body.  Even if the corporate powers of a corporation are reposed in the board of directors under the first paragraph of Sec. 23^[9][72] of the Corporation Code, it is of common knowledge and practice that the board of directors is not directly engaged or charged with the running of the recurring business affairs of the corporation.  Depending on the powers granted to them by the Articles of Incorporation, the members of the board generally do not concern themselves with the day-to-day affairs of the corporation, except those corporate officers who are charged with running the business of the corporation and are concomitantly members of the board, like the President.  Section 25^[10][73] of the Corporation Code requires the president of a corporation to be also a member of the board of directors. 

EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS

Thus, the application of the legal maxim expressio unius est exclusio alterius, which means the mention of one thing implies the exclusion of another thing not mentioned.  If a statute enumerates the thing upon which it is to operate, everything else must necessarily and by implication be excluded from its operation and effect.^[11][74]  The fourth officer in the enumerated list is the catch-all “such other officer charged with the management of the business affairs” of the corporation or juridical entity which is a factual issue which must be alleged and supported by evidence.

A scrutiny of the GIS reveals that among the petitioners who are members of the board of directors are the following who are likewise elected as corporate officers of Omni:  (1) Petitioner Arnel U. Ty (Arnel) as President; (2) petitioner Mari Antonette Ty as Treasurer; and (3) petitioner Jason Ong as Corporate Secretary.  Sec. 4 of BP 33, as amended, clearly indicated firstly the president of a corporation or juridical entity to be criminally liable for violations of BP 33, as amended. 

Evidently, petitioner Arnel, as President, who manages the business affairs of Omni, can be held liable for probable violations by Omni of BP 33, as amended.  The fact that petitioner Arnel is ostensibly the operations manager of Multi-Gas Corporation, a family owned business, does not deter him from managing Omni as well.  It is well-settled that where the language of the law is clear and unequivocal, it must be taken to mean exactly what it says.^[12][75]  As to the other petitioners, unless otherwise shown that they are situated under the catch-all “such other officer charged with the management of the business affairs,” they may not be held liable under BP 33, as amended, for probable violations.  Consequently, with the exception of petitioner Arnel, the charges against other petitioners must perforce be dismissed or dropped. 

x———————————————————————————–x

D E C I S I O N

VELASCO, JR., J.:

The Case

In this Petition for Review on Certiorari under Rule 45, petitioners seek the reversal of the Decision^[13][1] dated September 28, 2007 of the Court of Appeals (CA) in CA-G.R. SP No. 98054, which reversed and set aside the Resolutions dated October 9, 2006^[14][2] and December 14, 2006^[15][3] of the Secretary of Justice, and reinstated the November 7, 2005 Joint Resolution^[16][4] of the Office of the Chief State Prosecutor.  Petitioners assail also the CA Resolution^[17][5] dated March 14, 2008, denying their motion for reconsideration.

The Facts

Petitioners are stockholders of Omni Gas Corporation (Omni) as per Omni’s General Information Sheet^[18][6] (GIS) dated March 6, 2004 submitted to the Securities and Exchange Commission (SEC).  Omni is in the business of trading and refilling of Liquefied Petroleum Gas (LPG) cylinders and holds Pasig City Mayor’s Permit No. RET-04-001256 dated February 3, 2004. 

The case all started when Joaquin Guevara Adarlo & Caoile Law Offices (JGAC Law Offices) sent a letter dated March 22, 2004^[19][7] to the NBI requesting, on behalf of their clients Shellane Dealers Association, Inc., Petron Gasul Dealers Association, Inc., and Totalgaz Dealers Association, Inc., for the surveillance, investigation, and apprehension of persons or establishments in Pasig City that are engaged in alleged illegal trading of petroleum products and underfilling of branded LPG cylinders in violation of Batas Pambansa Blg. (BP) 33,^[20][8] as amended by Presidential Decree No. (PD) 1865.^[21][9]

Earlier, the JGAC Law Offices was furnished by several petroleum producers/brand owners their respective certifications on the dealers/plants authorized to refill their respective branded LPG cylinders, to wit: (1) On October 3, 2003, Pilipinas Shell Petroleum Corporation (Pilipinas Shell) issued a certification^[22][10] of the list of entities duly authorized to refill Shellane LPG cylinders; (2) on December 4, 2003, Petron Corporation (Petron) issued a certification^[23][11] of their dealers in Luzon, Visayas, and Mindanao authorized to refill Petron Gasul LPG cylinders; and (3) on January 5, 2004, Total (Philippines) Corporation (Total) issued two certifications^[24][12] of the refilling stations and plants authorized to refill their Totalgaz and Superkalan Gaz LPG cylinders.

Agents De Jemil and Kawada attested to conducting surveillance of Omni in the months of March and April 2004 and doing a test-buy on April 15, 2004.  They brought eight branded LPG cylinders of Shellane, Petron Gasul, Totalgaz, and Superkalan Gaz to Omni for refilling.  The branded LPG cylinders were refilled, for which the National Bureau of Investigation (NBI) agents paid PhP 1,582 as evidenced by Sales Invoice No. 90040^[25][13] issued by Omni on April 15, 2004.  The refilled LPG cylinders were without LPG valve seals and one of the cylinders was actually underfilled, as found by LPG Inspector Noel N. Navio of the Liquefied Petroleum Gas Industry Association (LPGIA) who inspected the eight branded LPG cylinders on April 23, 2004 which were properly marked by the NBI after the test-buy.

The NBI’s test-buy yielded positive results for violations of BP 33, Section 2(a) in relation to Secs. 3(c) and 4, i.e., refilling branded LPG cylinders without authority; and Sec. 2(c) in relation to Sec. 4, i.e., underdelivery or underfilling of LPG cylinders.  Thus, on April 28, 2004, Agent De Jemil filed an Application for Search Warrant (With Request for Temporary Custody of the Seized Items)^[26][14] before the Regional Trial Court (RTC) in Pasig City, attaching, among others, his affidavit^[27][15] and the affidavit of Edgardo C. Kawada,^[28][16] an NBI confidential agent. 

On the same day of the filing of the application for search warrants on April 28, 2004, the RTC, Branch 167 in Pasig City issued Search Warrants No. 2624^[29][17] and 2625.^[30][18]  The NBI served the warrants the next day or on April 29, 2004 resulting in the seizure of several items from Omni’s premises duly itemized in the NBI’s Receipt/Inventory of Property/Item Seized.^[31][19]  On May 25, 2004, Agent De Jemil filed his Consolidated Return of Search Warrants with Ex-Parte Motion to Retain Custody of the Seized Items^[32][20] before the RTC Pasig City.

Subsequently, Agent De Jemil filed before the Department of Justice (DOJ) his Complaint-Affidavits against petitioners for:  (1) Violation of Section 2(a), in relation to Sections 3(c) and 4, of B.P. Blg. 33, as amended by P.D. 1865;^[33][21] and (2) Violation of Section 2(c), in relation to Section 4, of B.P. Blg. 33, as amended by P.D. 1865,^[34][22] docketed as I.S. Nos. 2004-616 and 2004-618, respectively.

During the preliminary investigation, petitioners submitted their Joint Counter-Affidavit,^[35][23] which was replied^[36][24] to by Agent De Jemil with a corresponding rejoinder^[37][25] from petitioners.

The Ruling of the Office of the Chief State Prosecutor

in I.S. No. 2004-616 and I.S. No. 2004-618

On November 7, 2005, the 3^rd Assistant City Prosecutor Leandro C. Catalo of Manila issued a Joint Resolution,^[38][26] later approved by the Chief State Prosecutor Jovencito R. Zuño upon the recommendation of the Head of the Task Force on Anti-Intellectual Property Piracy (TFAIPP), Assistant Chief State Prosecutor Leah C. Tanodra-Armamento, finding probable cause to charge petitioners with violations of pertinent sections of BP 33, as amended, resolving as follows: 

WHEREFORE, premises considered, it is hereby recommended that two (2) Informations for violations of Section 2 [a] (illegal trading in petroleum and/or petroleum products) and Section 2 [c] (underfilling of LPG cylinders), both of Batas Pambansa Bilang 33, as amended, be filed against respondents [herein petitioners] ARNEL TY, MARIE ANTONETTE TY, JASON ONG, WILLY DY and ALVIN TY.^[39][27]

Assistant City Prosecutor Catalo found the existence of probable cause based on the evidence submitted by Agent De Jemil establishing the fact that Omni is not an authorized refiller of Shellane, Petron Gasul, Totalgaz and Superkalan Gaz LPG cylinders.  Debunking petitioners’ contention that the branded LPG cylinders are already owned by consumers who are free to do with them as they please, the law is clear that the stamped markings on the LPG cylinders show who are the real owners thereof and they cannot be refilled sans authority from Pilipinas Shell, Petron or Total, as the case may be.  On the underfilling of one LPG cylinder, the findings of LPG Inspector Navio of the LPGIA were uncontroverted by petitioners.  

Petitioners’ motion for reconsideration,^[40][28] was denied through a Resolution^[41][29] by the Office of the Chief State Prosecutor issued on May 3, 2006.

In time, petitioners appealed to the Office of the Secretary of Justice.^[42][30]

The Ruling of the DOJ Secretary

in I.S. No. 2004-616 and I.S. No. 2004-618

On October 9, 2006, the Office of the Secretary of Justice issued a Resolution^[43][31] reversing and setting aside the November 7, 2005 Joint Resolution of the Office of the Chief State Prosecutor, the dispositive portion of which reads:

WHEREFORE, the assailed resolution is hereby REVERSED and SET ASIDE.  The Chief State Prosecutor is directed to cause the withdrawal of the informations for violations of Sections 2(a) and 2(c) of B.P. Blg. 33, as amended by P.D. 1865, against respondents Arnel Ty, Mari Antonette Ty, Jason Ong, Willy Dy and Alvin Ty and report the action taken within ten (10) days from receipt hereof.

SO ORDERED.^[44][32]

The Office of the Secretary of Justice viewed, first, that the underfilling of one of the eight LPG cylinders was an isolated incident and cannot give rise to a conclusion of underfilling, as the phenomenon may have been caused by human error, oversight or technical error.  Being an isolated case, it ruled that there was no showing of a clear pattern of deliberate underfilling.  Second, on the alleged violation of refilling branded LPG cylinders sans written authority, it found no sufficient basis to hold petitioners responsible for violation of Sec. 2 (c) of BP 33, as amended, since there was no proof that the branded LPG cylinders seized from Omni belong to another company or firm, holding that the simple fact that the LPG cylinders with markings or stamps of other petroleum producers cannot by itself prove ownership by said firms or companies as the consumers who take them to Omni fully owned them having purchased or acquired them beforehand.

Agent De Jemil moved but was denied reconsideration^[45][33] through another Resolution^[46][34] dated December 14, 2006 prompting him to repair to the CA via a petition for certiorari^[47][35] under Rule 65 of the Rules of Court, docketed as CA-G.R. SP No. 98054.

The Ruling of the CA

The Office of the Solicitor General (OSG), in its Comment^[48][36] on Agent De Jemil’s appeal, sought the dismissal of the latter’s petition viewing that the determination by the Office of the Secretary of Justice of probable cause is entitled to respect owing to the exercise of his prerogative to prosecute or not.

On August 31, 2007, Petron filed a Motion to Intervene and to Admit Attached Petition-in-Intervention^[49][37] and Petition-in-Intervention^[50][38] before the CA in CA-G.R. SP No. 98054.  And much earlier, the Nationwide Association of Consumers, Inc. (NACI) also filed a similar motion.

On September 28, 2007, the appellate court rendered the assailed Decision^[51][39] revoking the resolutions of the Office of the Secretary of Justice and reinstated the November 7, 2005 Joint Resolution of the Office of the Chief State Prosecutor. The fallo reads:

WHEREFORE, the instant petition is GRANTED.  The assailed resolutions dated October 9, 2006 and December 14, 2006 are hereby REVERSED and SET ASIDE.  The Joint Resolution dated November 7, 2005 of the Office of the Chief State Prosecutor finding probable cause against private respondents Arnel Ty, Marie Antonette Ty, Jason Ong, Willy Dy, and Alvin Ty is hereby REINSTATED.

SO ORDERED.^[52][40]

Citing Sec. 1 (1) and (3) of BP 33, as amended, which provide for the presumption of underfilling, the CA held that the actual underfilling of an LPG cylinder falls under the prohibition of the law which does not require for the underfilling to be substantial and deliberate. 

Moreover, the CA found strong probable violation of “refilling of another company’s or firm’s cylinders without such company’s or firm’s written authorization” under Sec. 3 (c) of BP 33, as amended.  The CA relied on the affidavits of Agents De Jemil and Kawada, the certifications from various LPG producers that Omni is not authorized to refill their branded LPG cylinders, the results of the test-buy operation as attested to by the NBI agents and confirmed by the examination of LPG Inspector Navio of the LPGIA, the letter-opinion^[53][41] of the Department of Energy (DOE) to Pilipinas Shell confirming that branded LPG cylinders are properties of the companies whose stamp markings appear thereon, and Department Circular No. 2000-05-007^[54][42] of the DOE on the required stamps or markings by the manufacturers of LPG cylinders.

After granting the appeal of Agent De Jemil, however, the motions to intervene filed by Petron and NACI were simply noted by the appellate court. 

Petitioners’ motion for reconsideration was rebuffed by the CA through the equally assailed March 14, 2008 Resolution.^[55][43]

Thus, the instant petition.

The Issues

I.       WHETHER OR NOT RESPONDENTS WERE ENTITLED TO THE SPECIAL CIVIL ACTION OF CERTIORARI IN THE COURT OF APPEALS.

II.      WHETHER OR NOT UNDER THE CIRCUMSTANCES THERE WAS PROBABLE CAUSE TO BELIEVE THAT PETITIONERS VIOLATED SECTION 2(A) OF BATAS PAMBANSA BLG. 33, AS AMENDED.

III.    WHETHER OR NOT UNDER THE CIRCUMSTANCES THERE WAS PROBABLE CAUSE TO BELIEVE THAT PETITIONERS VIOLATED SECTION 2(C) OF BATAS PAMBANSA BLG. 33, AS AMENDED.

IV.    WHETHER OR NOT PETITIONERS CAN BE HELD LIABLE UNDER BATAS PAMBANSA BLG. 33, AS AMENDED, FOR BEING MERE DIRECTORS, NOT ACTUALLY IN CHARGE OF THE MANAGEMENT OF THE BUSINESS AFFAIRS OF THE CORPORATION.^[56][44]

The foregoing issues can be summarized into two core issues:  first, whether probable cause exists against petitioners for violations of Sec. 2 (a) and (c) of BP 33, as amended; and second, whether petitioners can be held liable therefor.  We, however, will tackle at the outset the sole procedural issue raised:  the propriety of the petition for certiorari under Rule 65 availed of by public respondent Agent De Jemil to assail the resolutions of the Office of the Secretary of Justice.

Petron’s Comment-in-Intervention

On April 14, 2009, Petron entered its appearance by filing a Motion for Leave to Intervene and to Admit Comment-in-Intervention^[57][45] and its Comment-in-Intervention [To petition for Review on Certiorari dated 13 May 2008].^[58][46]  It asserted vested interest in the seizure of several Gasul LPG cylinders and the right to prosecute petitioners for unauthorized refilling of its branded LPG cylinders by Omni.  Petitioners duly filed their Comment/Opposition^[59][47] to Petron’s motion to intervene.  It is clear, however, that Petron has substantial interest to protect in so far as its business relative to the sale and refilling of Petron Gasul LPG cylinders is concerned, and therefore its intervention in the instant case is proper.

The Court’s Ruling

We partially grant the petition.

Procedural Issue:  Petition for Certiorari under Rule 65 Proper

Petitioners raise the sole procedural issue of the propriety of the legal remedy availed of by public respondent Agent De Jemil.  They strongly maintain that the Office of the Secretary of Justice properly assumed jurisdiction and did not gravely abuse its discretion in its determination of lack of probable cause—the exercise thereof being its sole prerogative—which, they lament, the appellate court did not accord proper latitude.  Besides, they assail the non-exhaustion of administrative remedies when Agent De Jemil immediately resorted to court action through a special civil action for certiorari under Rule 65 before the CA without first appealing the resolutions of the Office of the Secretary of Justice to the Office of the President (OP).

We cannot agree with petitioners. 

For one, while it is the consistent principle in this jurisdiction that the determination of probable cause is a function that belongs to the public prosecutor^[60][48] and, ultimately, to the Secretary of Justice, who may direct the filing of the corresponding information or move for the dismissal of the case;^[61][49] such determination is subject to judicial review where it is established that grave abuse of discretion tainted the determination. 

For another, there is no question that the Secretary of Justice is an alter ego of the President who may opt to exercise or not to exercise his or her power of review over the former’s determination in criminal investigation cases.  As aptly noted by Agent De Jemil, the determination of probable cause by the Secretary of Justice is, under the doctrine of qualified political agency, presumably that of the Chief Executive unless disapproved or reprobated by the latter.

 Chan v. Secretary of Justice^[62][50] delineated the proper remedy from the determination of the Secretary of Justice.  Therein, the Court, after expounding on the policy of non-interference in the determination of the existence of probable cause absent any showing of arbitrariness on the part of the public prosecutor and the Secretary of Justice, however, concluded, citing Alcaraz v. Gonzalez^[63][51] and Preferred Home Specialties, Inc. v. Court of Appeals,^[64][52] that an aggrieved party from the resolution of the Secretary of Justice may directly resort to judicial review on the ground of grave abuse of discretion, thus:

x x x [T]he findings of the Justice Secretary may be reviewed through a petition for certiorari under Rule 65 based on the allegation that he acted with grave abuse of discretion.  This remedy is available to the aggrieved party.^[65][53]  (Emphasis supplied.)

It is thus clear that Agent De Jemil, the aggrieved party in the assailed resolutions of the Office of the Secretary of Justice, availed of and pursued the proper legal remedy of a judicial review through a petition for certiorari under Rule 65 in assailing the latter’s finding of lack of probable cause on the ground of grave abuse of discretion. 

First Core Issue:  Existence of Probable Cause

Petitioners contend that there is no probable cause that Omni violated Sec. 2 (a), in relation to Secs. 3 (c) and 4 of BP 33, as amended, prohibiting the refilling of another company’s or firm’s LPG cylinders without its written authorization.  First, the branded LPG cylinders seized were not traded by Omni as its representative annotated in the NBI receipt of seized items that the filled LPG cylinders came from customers’ trucks and the empty ones were taken from the warehouse or swapping section of the refilling plant and not from the refilling section.  Second, the branded LPG cylinders are owned by end-user customers and not by the major petroleum companies, i.e., Petron, Pilipinas Shell and Total.  And even granting arguendo that Omni is selling these LPG cylinders, still there cannot be a prima facie case of violation since there is no proof that the refilled branded LPG cylinders are owned by another company or firm.

Third, granting that Petron, Total and Pilipinas Shell still own their respective branded LPG cylinders already sold to consumers, still such fact will not bind third persons, like Omni, who is not privy to the agreement between the buying consumers and said major petroleum companies.  Thus, a subsequent transfer by the customers of Petron, Total and Pilipinas Shell of the duly marked or stamped LPG cylinders through swapping, for example, will effectively transfer ownership of the LPG cylinders to the transferee, like Omni.

Fourth, LPG cylinder exchange or swapping is a common industry practice that the DOE recognizes.  They point to a series of meetings conducted by the DOE for institutionalizing the validity of swapping of all and any kind of LPG cylinders among the industry players.  The meetings resulted in a draft Memorandum of Agreement (MOA) which unfortunately was not signed due to the withdrawal of petroleum major players Petron, Total and Pilipinas Shell.  Nonetheless, the non-signing of the MOA does not diminish the fact of the recognized industry practice of cylinder exchange or swapping.  Relying on Republic Act No. (RA) 8479,^[66][54] petitioners maintain that said law promotes and encourages the entry of new participants in the petroleum industry such as Omni.  And in furtherance of this mandate is the valid practice of cylinder exchange or swapping in the LPG industry.

We are not persuaded by petitioners’ strained rationalizations.

Probable violation of Sec. 2 (a) of BP 33, amended

First.  The test-buy conducted on April 15, 2004 by the NBI agents, as attested to by their respective affidavits, tends to show that Omni illegally refilled the eight branded LPG cylinders for PhP 1,582.  This is a clear violation of Sec. 2 (a), in relation to Secs. 3 (c) and 4 of BP 33, as amended.  It must be noted that the criminal complaints, as clearly shown in the complaint-affidavits of Agent De Jemil, are not based solely on the seized items pursuant to the search warrants but also on the test-buy earlier conducted by the NBI agents.

Second.  The written certifications from Pilipinas Shell, Petron and Total show that Omni has no written authority to refill LPG cylinders, embossed, marked or stamped Shellane, Petron Gasul, Totalgaz and Superkalan Gaz.  In fact, petitioners neither dispute this nor claim that Omni has authority to refill these branded LPG cylinders.

Third.  Belying petitioners’ contention, the seized items during the service of the search warrants tend to show that Omni illegally refilled branded LPG cylinders without authority. 

On April 29, 2004, the NBI agents who served the search warrants on Omni seized the following:

Quantity/Unit                            Description

7 LPG cylinders                        Totalgaz, 11.0 kg [filled]

1 LPG cylinder             Petron Gasul, 11.0 kg [filled]

1 LPG cylinder             Shellane, 11.0 kg [filled]

29 LPG cylinders                      Superkalan Gaz, 2.7 kg [empty]

17 LPG cylinders                      Petron Gasul, 11.0 kg [emptly]

8 LPG cylinders                        Marked as Omnigas with Shell emboss,

                                                11.0 kg [empty]

5 LPG cylinders                        Marked as Omnigas with Totalgaz emboss,

                                                11.0 kg [empty]

23 LPG cylinders                      Shellane, 11.0 kg [empty]

3 LPG cylinders                        Marked as Omnigas with Gasul emboss,

                                                11.0 kg [empty]

21 LPG cylinders                      Totalgaz, 11.0 kg [empty]

The foregoing list is embodied in the NBI’s Receipt/Inventory of Property/Item Seized^[67][55] signed by NBI Agent Edwin J. Roble who served and implemented the search warrants.  And a copy thereof was duly received by Atty. Allan U. Ty, representative of Omni, who signed the same “under protest” and made the annotation at the bottom part thereon:  “The above items/cylinders were taken at customers’ trucks and the empty cylinders taken at the warehouse (swapping section) of the company.”^[68][56]

Even considering that the filled LPG cylinders were indeed already loaded on customers’ trucks when confiscated, yet the fact that these refilled LPG cylinders consisting of nine branded LPG cylinders, specifically Totalgaz, Petron Gasul and Shellane, tends to show that Omni indeed refilled these branded LPG cylinders without authorization from Total, Petron and Pilipinas Shell.  Such a fact is bolstered by the test-buy conducted by Agent De Jemil and NBI confidential agent Kawada:  Omni’s unauthorized refilling of branded LPG cylinders, contrary to Sec. 2 (a) in relation to Sec. 3 (c) of BP 33, as amended.  Said provisos provide:

Sec. 2.    Prohibited Acts.—The following acts are prohibited and penalized:
(a)    Illegal trading in petroleum and/or petroleum products;

x x x x

Sec. 3.    Definition of terms.—For the purpose of this Act, the following terms shall be construed to mean:
Illegal trading in petroleum and/or petroleum products—
x x x x
            (c)        Refilling of liquefied petroleum gas cylinders without authority from said Bureau, or refilling of another company’s or firm’s cylinders without such company’s or firm’s written authorization;  (Emphasis supplied.)

As petitioners strongly argue, even if the branded LPG cylinders were indeed owned by customers, such fact does not authorize Omni to refill these branded LPG cylinders without written authorization from the brand owners Pilipinas Shell, Petron and Total.  In Yao, Sr. v. People,^[69][57] a case involving criminal infringement of property rights under Sec. 155 of RA 8293,^[70][58] in affirming the courts a quo’s determination of the presence of probable cause, this Court held that from Sec. 155.1^[71][59] of RA 8293 can be gleaned that “mere unauthorized use of a container bearing a registered trademark in connection with the sale, distribution or advertising of goods or services which is likely to cause confusion, mistake or deception among the buyers/consumers can be considered as trademark infringement.”^[72][60]  The Court affirmed the presence of infringement involving the unauthorized sale of Gasul and Shellane LPG cylinders and the unauthorized refilling of the same by Masagana Gas Corporation as duly attested to and witnessed by NBI agents who conducted the surveillance and test-buys. 

Similarly, in the instant case, the fact that Omni refilled various branded LPG cylinders even if owned by its customers but without authority from brand owners Petron, Pilipinas Shell and Total shows palpable violation of BP 33, as amended.  As aptly noted by the Court in Yao, Sr. v. People, only the duly authorized dealers and refillers of Shellane, Petron Gasul and, by extension, Total may refill these branded LPG cylinders.  Our laws sought to deter the pernicious practices of unscrupulous businessmen.

Fourth.  The issue of ownership of the seized branded LPG cylinders is irrelevant and hence need no belaboring.  BP 33, as amended, does not require ownership of the branded LPG cylinders as a condition sine qua non for the commission of offenses involving petroleum and petroleum products.  Verily, the offense of refilling a branded LPG cylinder without the written consent of the brand owner constitutes the offense regardless of the buyer or possessor of the branded LPG cylinder.

After all, once a consumer buys a branded LPG cylinder from the brand owner or its authorized dealer, said consumer is practically free to do what he pleases with the branded LPG cylinder.  He can simply store the cylinder once it is empty or he can even destroy it since he has paid a deposit for it which answers for the loss or cost of the empty branded LPG cylinder.  Given such fact, what the law manifestly prohibits is the refilling of a branded LPG cylinder by a refiller who has no written authority from the brand owner.  Apropos, a refiller cannot and ought not to refill branded LPG cylinders if it has no written authority from the brand owner.

Besides, persuasive are the opinions and pronouncements by the DOE:  brand owners are deemed owners of their duly embossed, stamped and marked LPG cylinders even if these are possessed by customers or consumers.  The Court recognizes this right pursuant to our laws, i.e., Intellectual Property Code of the Philippines.  Thus the issuance by the DOE Circular No. 2000-05-007,^[73][61] the letter-opinion^[74][62] dated December 9, 2004 of then DOE Secretary Vincent S. Perez addressed to Pilipinas Shell, the June 6, 2007 letter^[75][63] of then DOE Secretary Raphael P.M. Lotilla to the LPGIA, and DOE Department Circular No. 2007-10-0007^[76][64] on LPG Cylinder Ownership and Obligations Related Thereto issued on October 13, 2007 by DOE Secretary Angelo T. Reyes.

Fifth.  The ownership of the seized branded LPG cylinders, allegedly owned by Omni customers as petitioners adamantly profess, is of no consequence. 

The law does not require that the property to be seized should be owned by the person against whom the search warrants is directed. Ownership, therefore, is of no consequence, and it is sufficient that the person against whom the warrant is directed has control or possession of the property sought to be seized.^[77][65]  Petitioners cannot deny that the seized LPG cylinders were in the possession of Omni, found as they were inside the Omni compound.

In fine, we also note that among those seized by the NBI are 16 LPG cylinders bearing the embossed brand names of Shellane, Gasul and Totalgaz but were marked as Omnigas.  Evidently, this pernicious practice of tampering or changing the appearance of a branded LPG cylinder to look like another brand violates the brand owners’ property rights as infringement under Sec. 155.1 of RA 8293.  Moreover, tampering of LPG cylinders is a mode of perpetrating the criminal offenses under BP 33, as amended, and clearly enunciated under DOE Circular No. 2000-06-010 which provided penalties on a per cylinder basis for each violation.

Foregoing considered, in the backdrop of the quantum of evidence required to support a finding of probable cause, we agree with the appellate court and the Office of the Chief State Prosecutor, which conducted the preliminary investigation, that there exists probable cause for the violation of Sec. 2 (a) in relation to Sec. 3 (c) of BP 33, as amended.  Probable cause has been defined as the existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.^[78][66]  After all, probable cause need not be based on clear and convincing evidence of guilt, as the investigating officer acts upon reasonable belief—probable cause implies probability of guilt and requires more than bare suspicion but less than evidence which would justify a conviction.^[79][67]

Probable violation of Sec. 2 (c) of BP 33, as amended

Anent the alleged violation of Sec. 2 (c) in relation to Sec. 4 of BP 33, as amended, petitioners strongly argue that there is no probable cause for said violation based upon an underfilling of a lone cylinder of the eight branded LPG cylinders refilled during the test-buy.  Besides, they point out that there was no finding of underfilling in any of the filled LPG cylinders seized during the service of the search warrants.  Citing DOE’s Bureau of Energy Utilization Circular No. 85-3-348, they maintain that some deviation is allowed from the exact filled weight.  Considering the fact that an isolated underfilling happened in so many LPG cylinders filled, petitioners are of the view that such is due to human or equipment error and does not in any way constitute deliberate underfilling within the contemplation of the law.

Moreover, petitioners cast aspersion on the report and findings of LPG Inspector Navio of the LPGIA by assailing his independence for being a representative of the major petroleum companies and that the inspection he conducted was made without the presence of any DOE representative or any independent body having technical expertise in determining LPG cylinder underfilling beyond the authorized quantity. 

Again, we are not persuaded.

Contrary to petitioners’ arguments, a single underfilling constitutes an offense under BP 33, as amended by PD 1865, which clearly criminalizes these offenses.  In Perez v. LPG Refillers Association of the Philippines, Inc.,^[80][68] the Court affirmed the validity of DOE Circular No. 2000-06-010 which provided penalties on a per cylinder basis for each violation, thus:

B.P. Blg. 33, as amended, criminalizes illegal trading, adulteration, underfilling, hoarding, and overpricing of petroleum products.  Under this general description of what constitutes criminal acts involving petroleum products, the Circular merely lists the various modes by which the said criminal acts may be perpetrated, namely: no price display board, no weighing scale, no tare weight or incorrect tare weight markings, no authorized LPG seal, no trade name, unbranded LPG cylinders, no serial number, no distinguishing color, no embossed identifying markings on cylinder, underfilling LPG cylinders, tampering LPG cylinders, and unauthorized decanting of LPG cylinders.  These specific acts and omissions are obviously within the contemplation of the law, which seeks to curb the pernicious practices of some petroleum merchants.^[81][69]  (Emphasis supplied.)

Moreover, in denying the motion for reconsideration of the LPG Refillers Association of the Philippines, Inc., the Court upheld the basis of said DOE Circular No. 2000-06-010 on the imposition of penalties on a per cylinder basis, thus:  

Respondent’s position is untenable.  The Circular is not confiscatory in providing penalties on a per cylinder basis.  Those penalties do not exceed the ceiling prescribed in Section 4 of B.P. Blg. 33, as amended, which penalizes “any person who commits any act [t]herein prohibited.”  Thus, violation on a per cylinder basis falls within the phrase “any act” as mandated in Section 4.  To provide the same penalty for one who violates a prohibited act in B.P. Blg. 33, as amended, regardless of the number of cylinders involved would result in an indiscriminate, oppressive and impractical operation of B.P. Blg. 33, as amended.  The equal protection clause demands that “all persons subject to such legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed.”^[82][70]

The Court made it clear that a violation, like underfilling, on a per cylinder basis falls within the phrase of any act as mandated under Sec. 4 of BP 33, as amended.  Ineluctably, the underfilling of one LPG cylinder constitutes a clear violation of BP 33, as amended.  The finding of underfilling by LPG Inspector Navio of the LPGIA, as aptly noted by Manila Assistant City Prosecutor Catalo who conducted the preliminary investigation, was indeed not controverted by petitioners. 

On the issue of manifest bias and partiality, suffice it to say that aside from the allegation by petitioners, they have not shown that LPG Inspector Navio is neither an expert nor qualified to determine underfilling.  Besides, it must be noted that the inspection by LPG Inspector Navio was conducted in the presence of NBI agents on April 23, 2004 who attested to that fact through their affidavits.  Moreover, no rules require and petitioners have not cited any that the inspection be conducted in the presence of DOE representatives. 

Second Core Issue:  Petitioners’ Liability for Violations

Sec. 4 of BP 33, as amended, provides for the penalties and persons who are criminally liable, thus:

Sec. 4.    Penalties. — Any person who commits any act herein prohibited shall, upon conviction, be punished with a fine of not less than twenty thousand pesos (P20,000) but not more than fifty thousand pesos  (P50,000), or imprisonment of at least two (2) years but not more than five (5) years, or both, in the discretion of the court.  In cases of second and subsequent conviction under this Act, the penalty shall be both fine and imprisonment as provided herein.  Furthermore, the petroleum and/or petroleum products, subject matter of the illegal trading, adulteration, shortselling, hoarding, overpricing or misuse, shall be forfeited in favor of the Government: Provided, That if the petroleum and/or petroleum products have already been delivered and paid for, the offended party shall be indemnified twice the amount paid, and if the seller who has not yet delivered has been fully paid, the price received shall be returned to the buyer with an additional amount equivalent to such price; and in addition, if the offender is an oil company, marketer, distributor, refiller, dealer, sub-dealer and other retail outlets, or hauler, the cancellation of his license. 
Trials of cases arising from this Act shall be terminated within thirty (30) days after arraignment.
When the offender is a corporation, partnership, or other juridical person, the president, the general manager, managing partner, or such other officer charged with the management of the business affairs thereof, or employee responsible for the violation shall be criminally liable; in case the offender is an alien, he shall be subject to deportation after serving the sentence. 

If the offender is a government official or employee, he shall be perpetually disqualified from office.  (Emphasis supplied.)

Relying on the third paragraph of the above statutory proviso, petitioners argue that they cannot be held liable for any perceived violations of BP 33, as amended, since they are mere directors of Omni who are not in charge of the management of its business affairs.  Reasoning that criminal liability is personal, liability attaches to a person from his personal act or omission but not from the criminal act or negligence of another.  Since Sec. 4 of BP 33, as amended, clearly provides and enumerates who are criminally liable, which do not include members of the board of directors of a corporation, petitioners, as mere members of the board of directors who are not in charge of Omni’s business affairs, maintain that they cannot be held liable for any perceived violations of BP 33, as amended.  To bolster their position, they attest to being full-time employees of various firms as shown by the Certificates of Employment^[83][71] they submitted tending to show that they are neither involved in the day-to-day business of Omni nor managing it.  Consequently, they posit that even if BP 33, as amended, had been violated by Omni they cannot be held criminally liable thereof not being in any way connected with the commission of the alleged violations, and, consequently, the criminal complaints filed against them based solely on their being members of the board of directors as per the GIS submitted by Omni to SEC are grossly discriminatory.

On this point, we agree with petitioners except as to petitioner Arnel U. Ty who is indisputably the President of Omni.

It may be noted that Sec. 4 above enumerates the persons who may be held liable for violations of the law, viz:  (1) the president, (2) general manager, (3) managing partner, (4) such other officer charged with the management of the business affairs of the corporation or juridical entity, or (5) the employee responsible for such violation.  A common thread of the first four enumerated officers is the fact that they manage the business affairs of the corporation or juridical entity.  In short, they are operating officers of a business concern, while the last in the list is self-explanatory. 

It is undisputed that petitioners are members of the board of directors of Omni at the time pertinent.  There can be no quibble that the enumeration of persons who may be held liable for corporate violators of BP 33, as amended, excludes the members of the board of directors.  This stands to reason for the board of directors of a corporation is generally a policy making body.  Even if the corporate powers of a corporation are reposed in the board of directors under the first paragraph of Sec. 23^[84][72] of the Corporation Code, it is of common knowledge and practice that the board of directors is not directly engaged or charged with the running of the recurring business affairs of the corporation.  Depending on the powers granted to them by the Articles of Incorporation, the members of the board generally do not concern themselves with the day-to-day affairs of the corporation, except those corporate officers who are charged with running the business of the corporation and are concomitantly members of the board, like the President.  Section 25^[85][73] of the Corporation Code requires the president of a corporation to be also a member of the board of directors. 

Thus, the application of the legal maxim expressio unius est exclusio alterius, which means the mention of one thing implies the exclusion of another thing not mentioned.  If a statute enumerates the thing upon which it is to operate, everything else must necessarily and by implication be excluded from its operation and effect.^[86][74]  The fourth officer in the enumerated list is the catch-all “such other officer charged with the management of the business affairs” of the corporation or juridical entity which is a factual issue which must be alleged and supported by evidence.

A scrutiny of the GIS reveals that among the petitioners who are members of the board of directors are the following who are likewise elected as corporate officers of Omni:  (1) Petitioner Arnel U. Ty (Arnel) as President; (2) petitioner Mari Antonette Ty as Treasurer; and (3) petitioner Jason Ong as Corporate Secretary.  Sec. 4 of BP 33, as amended, clearly indicated firstly the president of a corporation or juridical entity to be criminally liable for violations of BP 33, as amended. 

Evidently, petitioner Arnel, as President, who manages the business affairs of Omni, can be held liable for probable violations by Omni of BP 33, as amended.  The fact that petitioner Arnel is ostensibly the operations manager of Multi-Gas Corporation, a family owned business, does not deter him from managing Omni as well.  It is well-settled that where the language of the law is clear and unequivocal, it must be taken to mean exactly what it says.^[87][75]  As to the other petitioners, unless otherwise shown that they are situated under the catch-all “such other officer charged with the management of the business affairs,” they may not be held liable under BP 33, as amended, for probable violations.  Consequently, with the exception of petitioner Arnel, the charges against other petitioners must perforce be dismissed or dropped. 

WHEREFORE, premises considered, we PARTIALLY GRANT the instant petition.  Accordingly, the assailed September 28, 2007 Decision and March 14, 2008 Resolution of the Court of Appeals in CA-G.R. SP No. 98054 are AFFIRMED with MODIFICATION that petitioners Mari Antonette Ty, Jason Ong, Willy Dy and Alvin Ty are excluded from the two Informations charging probable violations of Batas Pambansa Bilang 33, as amended.  The Joint Resolution dated November 7, 2005 of the Office of the Chief State Prosecutor is modified accordingly.

No pronouncement as to costs.

SO ORDERED.

                                                          PRESBITERO J. VELASCO, JR.

                                                                        Associate Justice

WE CONCUR:

RENATO C. CORONA

Chief Justice

Chairperson

TERESITA J. LEONARDO-DE CASTRO     MARIANO C. DEL CASTILLO

                  Associate Justice                                    Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

C E R T I F I C A T I O N

                Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

                                                                          RENATO C. CORONA

                                                                                                                                      Chief Justice

PEOPLE OF THE PHILIPPINES VS. RICKY ALFREDO Y NORMAN (G.R. NO. 188560, 15 DECEMBER 2010). SUBJECTS: DAMAGES IN RAPE CASE; DECISION OF JUDGE WHO DID NOT HEAR THE CASE; ALIBI.

DOCTRINES:

REQUIREMENTS TO PROVE ALIBI:

It should be noted that for alibi to prosper, it is not enough for the accused to prove that he was in another place when the crime was committed. He must likewise prove that it was physically impossible for him to be present at the crime scene or its immediate vicinity at the time of its commission.^[1][40]

XXXXXXXXXXXX

Moreover, it has been held, time and again, that alibi, as a defense, is inherently weak and crumbles in light of positive identification by truthful witnesses.^[2][41]  It is evidence negative in nature and self-serving and cannot attain more credibility than the testimonies of prosecution witnesses who testify on clear and positive evidence.^[3][42]  Thus, there being no strong and credible evidence adduced to overcome the testimony of AAA, no weight can be given to the alibi of accused-appellant.

In addition, even if the alibi of accused-appellant appears to have been corroborated by his mother, Remina, and his sister, Margaret, said defense is unworthy of belief not only because accused-appellant was positively identified by AAA, but also because it has been held that alibi becomes more unworthy of merit where it is established mainly by the accused himself and his or her relatives, friends, and comrades-in-arms,^[4][43] and not by credible persons.^[5][44]

TESTIMONY IN OPEN COURT HAS GREATER WEIGHT IN AFFIDAVIT.

Nevertheless, discrepancies do not necessarily impair the credibility of a witness, for affidavits, being taken ex parte, are almost always incomplete and often inaccurate for lack of searching inquiries by the investigating officer or due to partial suggestions, and are, thus, generally considered to be inferior to the testimony given in open court.^[6][50]

THE VALIDITY OF CONVICTION IS NOT ADVERSELY AFFECTED BY THE FACT THAT THE JUDGE WHO RENDERED JUDGMENT WAS NOT THE ONE WHO HEARD THE WITNESSES

Accused-appellant contends further that the judge who penned the appealed decision is different from the judge who heard the testimonies of the witnesses and was, thus, in no position to render a judgment, as he did not observe firsthand their demeanor during trial.

We do not agree. The fact that the trial judge who rendered judgment was not the one who had the occasion to observe the demeanor of the witnesses during trial, but merely relied on the records of the case, does not render the judgment erroneous, especially where the evidence on record is sufficient to support its conclusion.^[7][51] As this Court held in People v. Competente:

The circumstance that the Judge who rendered the judgment was not the one who heard the witnesses, does not detract from the validity of the verdict of conviction. Even a cursory perusal of the Decision would show that it was based on the evidence presented during trial and that it was carefully studied, with testimonies on direct and cross examination as well as questions from the Court carefully passed upon.^[8][52] (Emphasis supplied.)

Further, the transcripts of stenographic notes taken during the trial were extant and complete. Hence, there was no impediment for the judge to decide the case.

AWARD  CIVIL INDEMNITY,  MORAL DAMAGES AND EXEMPLARY DAMAGES  IN RAPE CASES

The decision of the CA as to the damages awarded must be modified.  For rape under Art. 266-A, par. 1(d) of the Revised Penal Code, the CA was correct in awarding PhP 50,000 as civil indemnity and PhP 50,000 as moral damages.  However, for rape through sexual assault under Art. 266-A, par. 2 of the Code, the award of damages should be PhP 30,000 as civil indemnity and PhP 30,000 as moral damages.^[9][62]

We explained in People v. Cristobal that “for sexually assaulting a pregnant married woman, the accused has shown moral corruption, perversity, and wickedness. He has grievously wronged the institution of marriage. The imposition then of exemplary damages by way of example to deter others from committing similar acts or for correction for the public good is warranted.”^[10][63] Notably, there were instances wherein exemplary damages were awarded despite the absence of an aggravating circumstance. As we held in People v. Dalisay:

Prior to the effectivity of the Revised Rules of Criminal Procedure, courts generally awarded exemplary damages in criminal cases when an aggravating circumstance, whether ordinary or qualifying, had been proven to have attended the commission of the crime, even if the same was not alleged in the information. This is in accordance with the aforesaid Article 2230. However, with the promulgation of the Revised Rules, courts no longer consider the aggravating circumstances not alleged and proven in the determination of the penalty and in the award of damages. Thus, even if an aggravating circumstance has been proven, but was not alleged, courts will not award exemplary damages. x x x

x x x x

Nevertheless, People v. Catubig laid down the principle that courts may still award exemplary damages based on the aforementioned Article 2230, even if the aggravating circumstance has not been alleged, so long as it has been proven, in criminal cases instituted before the effectivity of the Revised Rules which remained pending thereafter. Catubig reasoned that the retroactive application of the Revised Rules should not adversely affect the vested rights of the private offended party.

Thus, we find, in our body of jurisprudence, criminal cases, especially those involving rape, dichotomized: one awarding exemplary damages, even if an aggravating circumstance attending the commission of the crime had not been sufficiently alleged but was consequently proven in the light of Catubig; and another awarding exemplary damages only if an aggravating circumstance has both been alleged and proven following the Revised Rules. Among those in the first set are People v. Laciste, People v. Victor, People v. Orilla, People v. Calongui, People v. Magbanua, People of the Philippines v. Heracleo Abello y Fortada, People of the Philippines v. Jaime Cadag Jimenez, and People of the Philippines v. Julio Manalili. And in the second set are People v. Llave, People of the Philippines v. Dante Gragasin y Par, and People of the Philippines v. Edwin Mejia. Again, the difference between the two sets rests on when the criminal case was instituted, either before or after the effectivity of the Revised Rules.

x x x x

Nevertheless, by focusing only on Article 2230 as the legal basis for the grant of exemplary damages — taking into account simply the attendance of an aggravating circumstance in the commission of a crime, courts have lost sight of the very reason why exemplary damages are awarded. Catubig is enlightening on this point, thus —

Also known as “punitive” or “vindictive” damages, exemplary or corrective damages are intended to serve as a deterrent to serious wrong doings, and as a vindication of undue sufferings and wanton invasion of the rights of an injured or a punishment for those guilty of outrageous conduct. These terms are generally, but not always, used interchangeably. In common law, there is preference in the use of exemplary damages when the award is to account for injury to feelings and for the sense of indignity and humiliation suffered by a person as a result of an injury that has been maliciously and wantonly inflicted, the theory being that there should be compensation for the hurt caused by the highly reprehensible conduct of the defendant — associated with such circumstances as willfulness, wantonness, malice, gross negligence or recklessness, oppression, insult or fraud or gross fraud — that intensifies the injury. The terms punitive or vindictive damages are often used to refer to those species of damages that may be awarded against a person to punish him for his outrageous conduct. In either case, these damages are intended in good measure to deter the wrongdoer and others like him from similar conduct in the future.

Being corrective in nature, exemplary damages, therefore, can be awarded, not only in the presence of an aggravating circumstance, but also where the circumstances of the case show the highly reprehensible or outrageous conduct of the offender. In much the same way as Article 2230 prescribes an instance when exemplary damages may be awarded, Article 2229, the main provision, lays down the very basis of the award. Thus, in People v. Matrimonio, the Court imposed exemplary damages to deter other fathers with perverse tendencies or aberrant sexual behavior from sexually abusing their own daughters. Also, in People v. Cristobal, the Court awarded exemplary damages on account of the moral corruption, perversity and wickedness of the accused in sexually assaulting a pregnant married woman. Recently, in People of the Philippines v. Cristino Cañada, People of the Philippines v. Pepito Neverio and The People of the Philippines v. Lorenzo Layco, Sr., the Court awarded exemplary damages to set a public example, to serve as deterrent to elders who abuse and corrupt the youth, and to protect the latter from sexual abuse.  

It must be noted that, in the said cases, the Court used as basis Article 2229, rather than Article 2230, to justify the award of exemplary damages. Indeed, to borrow Justice Carpio Morales’ words in her separate opinion in People of the Philippines v. Dante Gragasin y Par, “[t]he application of Article 2230 of the Civil Code strictissimi juris in such cases, as in the present one, defeats the underlying public policy behind the award of exemplary damages — to set a public example or correction for the public good.”^[11][64] (Emphasis supplied.)

Concomitantly, exemplary damages in the amount of PhP 30,000 should be awarded for each count of rape, in line with prevailing jurisprudence.^[12][65]”

x———————————————————————————x

D E C I S I O N

VELASCO, JR., J.:

The Case

This is an appeal from the September 30, 2008 Decision^[13][1] of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 02135 entitled People of the Philippines v. Ricky Alfredo y Norman, which affirmed an earlier decision^[14][2] in Criminal Case Nos. 01-CR-4213 and 01-CR-4214of the Regional Trial Court (RTC), Branch 62 in La Trinidad, Benguet.  The RTC found accused-appellant Ricky Alfredo y Norman guilty beyond reasonable doubt of two counts of rape.

The Facts

Accused-appellant was charged in two (2) separate Informations, the accusatory portions of which read:

Criminal Case No. 01-CR-4213

That sometime in the period from April 28-29, 2001, at Cadian, Topdac, Municipality of Atok, Province of Benguet, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by means of force, intimidation and threats, did then and there willfully, unlawfully and feloniously have carnal knowledge with one [AAA],^[15][3] a thirty six (36) year old woman, against her will and consent, to her damage and prejudice.

CONTRARY TO LAW.^[16][4]

Criminal Case No. 01-CR-4214 

That sometime in the period from April 28-29, 2001, at Cadian, Topdac, Municipality of Atok, Province of Benguet, Philippines, and within the jurisdiction of the Honorable Court, the above-named accused, by means of force, intimidation and threats, did then and there willfully, unlawfully and feloniously commit an act of sexual assault by inserting a flashlight into the vagina of one [AAA], a thirty six (36) year old woman, against her will and consent, to her damage and prejudice.

CONTRARY TO LAW.^[17][5]

On June 21, 2001, accused-appellant, with the assistance of counsel, pleaded not guilty to both charges. Thereafter, trial on the merits ensued.

During the trial, the prosecution offered the oral testimonies of the victim, AAA; her 10-year old son, BBB; Ernesto dela Cruz; Police Officer 3 James Ruadap; and Dr. Alma Ged-ang.  On the other hand, the defense presented as its witnesses accused-appellant himself; his mother, Remina; his sister, Margaret; Hover Cotdi; Jona Canuto; and Pina Mendoza.^[18][6]

The Prosecution’s Version of Facts

In March 2001, AAA, who was six months pregnant, went home to Butiyao, Benguet, along with her family, to harvest the peppers planted in their garden. On April 27, 2001, AAA and her son, BBB, returned to their sayote plantation in Cadian, Topdac, Atok, Benguet to harvest sayote. The following day, or on April 28, 2001, AAA had the harvested sayote transported to Baguio City. Later that night, she and her son stayed at their rented shack and retired early to bed.^[19][7]

In the middle of the night, AAA was awakened by a beam of light coming from the gaps in the walls of the shack directly illuminating her face. She then inquired who the person was, but nobody answered. Instead, the light was switched off. After a few minutes, the light was switched on again.^[20][8]  Thereafter, a male voice shouted, “Rumwar kayo ditta no saan kayo nga rumwar paletpeten kayo iti bala!”^[21][9] AAA remained seated. Then, the male voice uttered, “Lukatam daytoy no saan mo nga lukatan bilangan ka, maysa, duwa…”^[22][10] AAA immediately woke BBB up.  Just then, the male voice said, “Pabitaken kayo iti bala.”^[23][11] AAA cried out of fear.^[24][12]

Anxious that the person outside would kill her and her son, AAA lit the gas lamp placed on top of the table, and opened the door while her son stood beside it.  As the door opened, she saw accused-appellant directly in front of her holding a flashlight.  AAA did not immediately recognize accused-appellant, as his hair was long and was covering his face.  She invited him to come inside the shack, but the latter immediately held her hair and ordered her to walk uphill.^[25][13]  Helpless and terrified, AAA obeyed him. All the while, accused-appellant was behind her.^[26][14]

Upon reaching a sloping ground, accused-appellant ordered AAA to stop.  Thereafter, accused-appellant placed the lit flashlight in his pocket and ordered AAA to remove her clothes.  When she refused, accused-appellant boxed her left eye and removed her clothes.  When she also attempted to stop accused-appellant, the latter angrily slapped her face.  Completely naked, AAA was again ordered to walk uphill.^[27][15]

Upon reaching a grassy portion and a stump about one foot high, accused-appellant ordered AAA to stop and lie on top of the stump, after accused-appellant boxed her thighs.  Accused-appellant then bent down and spread open AAA’s legs. After directing the beam of the flashlight on AAA’s naked body, accused-appellant removed his pants, lowered his brief to his knees, went on top of her, and inserted his penis into her vagina. Accused-appellant threatened to box her if she moves.^[28][16]

Accused-appellant also held AAA’s breast, as well as the other parts of her body.  He shifted the flashlight from one hand to another while he moved his buttocks up and down.  AAA cried as she felt severe pain in her lower abdomen.  Accused-appellant stood up and directed the beam of the flashlight on her after he was satisfied.^[29][17]

Ten minutes later, accused-appellant went on top of AAA again and inserted his penis into her vagina and moved his buttocks up and down. After being satisfied, accused-appellant stood up and lit a cigarette.^[30][18]

Afterwards, accused-appellant went on top of AAA again and tried to insert his penis in the latter’s vagina. His penis, however, has already softened.  Frustrated, accused-appellant knelt and inserted his fingers in her vagina.  After removing his fingers, accused-appellant held a twig about 10 inches long and the size of a small finger in diameter which he used to pierce her vagina.  Dissatisfied, accused-appellant removed the twig and inserted the flashlight in her vagina.^[31][19]

After accused-appellant removed the flashlight from AAA’s vagina, he went on top of her again, pressing his elbows on her upper breasts and boxing her shoulders and thighs.  Subsequently, accused-appellant stood up and warned her not to report the incident to the authorities.  Immediately after, he left her at the scene.^[32][20]

Since she was too weak to walk, AAA rested for about 15 minutes before she got up and went back to the shack where she immediately woke her son up. Thereafter, they proceeded to the highway and boarded a jeep to Camp 30, Atok, Benguet.  She also went to Sayangan, Atok, Benguet the following day to report the incident to the police authorities.^[33][21]

Upon medical examination, Dr. Ged-ang found that AAA had a subconjunctival hemorrhage on the right eye and multiple head injuries, which may have been caused by force such as a blow, a punch, or a hard object hitting the eye.  There was also tenderness on the upper part of the back of AAA, as well as on her left infraclavicular area below the left clavicle, left flank area or at the left side of the waist, and medial aspect on the inner part of the thigh. Moreover, there were also multiple linear abrasions, or minor straight open wounds on the skin of her forearms and legs caused by sharp objects with rough surface.^[34][22]

Apart from the external examination, Dr. Ged-ang also conducted an internal examination of the genitalia of AAA.  Dr. Ged-ang found that there was confluent abrasion on the left and medial aspects of her labia minora about five centimeters long and a confluent circular abrasion caused by a blunt, rough object that has been forcibly introduced into the genitalia.^[35][23]

Version of the Defense

In the morning of April 28, 2001, accused-appellant was allegedly working in the sayote plantation near his house.  At noontime, he went home to eat his lunch.  After having lunch, his mother told him to bring the pile of sayote she harvested to the edge of the road.  Accused-appellant went to the place where the pile of harvested sayote was placed. However, when he reached that place, he claimed that he saw AAA gathering the sayote harvested by his mother and placing them in a sack.^[36][24]

Upon seeing what AAA was doing, accused-appellant shouted at her, prompting AAA to run away with her son and leave the sack of sayote. When they left, accused-appellant started placing the harvested sayote in the sack.  He was able to fill eight sacks. Remembering that his mother told him that he would be able to fill 10 sacks all in all, accused-appellant went to the shack of AAA after bringing the eight sacks near the road.  He suspected that she and her son were the ones who took the two missing sacks of sayote.^[37][25]

When he arrived at the place where AAA and her son were staying, accused-appellant allegedly saw them packing sayote, and he also supposedly saw a sack of sayote with the name of his father printed on it. For this reason, accused-appellant got mad and told AAA to go away and leave the place because what they were doing was wrong. AAA replied by saying that she would wait for Hover Cotdi, the owner of the sayote plantation and the shack, to ask for permission to leave. All this time, accused-appellant was allegedly speaking in an angry but non-threatening voice.  Nonetheless, while he was confronting AAA, her son ran into the shack and stayed there.^[38][26]

Before leaving the place, accused-appellant told AAA that the sacks of sayote belonged to his family, although he decided not to take them back anymore.  He supposedly left after five o’clock in the afternoon and arrived at their house at around seven o’clock in the evening.  During this time, all his family members were watching television on Channel 3. Accused-appellant joined them in watching a Tagalog movie.  He then allegedly went to bed at 10 o’clock in the evening, while his parents continued to watch television until 11 o’clock in the evening.^[39][27]

The following morning, on April 29, 2001, accused-appellant woke up between six to seven o’clock in the morning. After having breakfast, he helped his mother clean the sayote farm. At around eight o’clock in the morning, he saw AAA by the road waiting for a ride with a baggage placed in a carton box.  His mother then went down the road and talked to AAA, leaving accused-appellant behind.  He claimed to pity AAA upon seeing her but could not do anything.^[40][28]

Ruling of the Trial Court

Between the two conflicting versions of the incident, the trial court gave credence to the version of the prosecution and rendered its Decision dated February 17, 2006, finding accused-appellant guilty of two counts of rape.  The decretal portion reads:

WHEREFORE, in view of the foregoing, the Court finds RICKY ALFREDO y NORMAN guilty beyond reasonable doubt of the crime of Rape in Criminal Case No. 01-CR-4213 and sentences him to suffer the penalty of reclusion perpetua including all the accessory penalties imposed by law.

The Court, likewise, finds him guilty beyond reasonable doubt of the crime of Rape in Criminal Case No. 01-CR-4214 and sentences him to suffer the indeterminate penalty of imprisonment of three (3) years, two (2) months and one (1) day of prision correccional, as minimum, and eight (8) years, two (2) months and one (1) day of prision mayor, as maximum.

For each count of rape, he shall pay [AAA] the sum of Fifty Thousand Pesos (Php50,000.00) by way of civil indemnity and the sum of Fifty Thousand Pesos (P50,000.00) by way of moral damages.

Pursuant to Administrative Circular No. 4-92-A of the Court Administrator, the Provincial Jail Warden of Benguet Province is directed to immediately transfer the said accused, Ricky Alfredo y Norman to the custody of the Bureau of Corrections, Muntinlupa City, Metro Manila after the expiration of fifteen (15) days from date of promulgation unless otherwise ordered by the court.

Let a copy of this Judgment be furnished the Provincial Jail Warden of Benguet Province for his information, guidance and compliance.

SO ORDERED.^[41][29]

Pursuant to our pronouncement in People v. Mateo,^[42][30] modifying the pertinent provisions of the Revised Rules on Criminal Procedure insofar as they provide for direct appeals from the Regional Trial Court to this Court in cases in which the penalty imposed by the trial court is death, reclusion perpetua, or life imprisonment, the case was transferred, for appropriate action and disposition, to the CA.

On August 17, 2006, accused-appellant filed his Brief for Accused-Appellant,^[43][31] while the People of the Philippines, through the Office of the Solicitor General, filed its Brief for the Plaintiff-Appellee^[44][32] on January 18, 2007.

Ruling of the Appellate Court

As stated above, the CA, in its Decision dated September 30, 2008, affirmed the judgment of conviction by the trial court.^[45][33]

Undaunted, accused-appellant filed a motion for reconsideration, which was denied by the CA in its Resolution dated March 19, 2009.^[46][34]

On April 21, 2009, accused-appellant filed his Notice of Appeal^[47][35] from the CA Decision dated September 30, 2008.

In our Resolution dated September 14, 2009,^[48][36] we notified the parties that they may file their respective supplemental briefs if they so desired.  On November 9, 2009, the People of the Philippines manifested that it is no longer filing a supplemental brief, as it believed that all the issues involved in the present controversy have been succinctly discussed in the Brief for the Appellee.^[49][37] On the other hand, on January 26, 2010, accused-appellant filed his supplemental brief.

The Issues

Accused-appellant contends in his supplemental brief that:

I.

BY THE NATURE OF THE OFFENSE IN THE TWO (2) INFORMATIONS FILED AGAINST ACCUSED-APPELLANT, THE LATTER HAS NO OTHER PLAUSIBLE DEFENSE EXCEPT ALIBI THAT SHOULD NOT JUST BE BRUSHED ASIDE IF THERE ARE MATERIAL INCONSISTENSIES IN THE CLAIMS OF THE WITNESSES FOR THE PROSECUTION;

II.

THE DECISION CONVICTING ACCUSED-APPELLANT HEAVILY RELIED ON THE DEMEANOR OF THE WITNESSES FOR THE PROSECUTION DURING THE TRIAL WHEN THE PONENTE OF THE DECISION DID NOT HAVE ANY OPPORTUNITY TO HEAR THE WITNESSES;

III.

THE THEN AND THERE CONDUCT OF ACCUSED-APPELLANT IS UNLIKELY TO YIELD A GUILTY VERDICT.^[50][38]

The Court’s Ruling

We sustain accused-appellant’s conviction.

Alibi is an inherently weak defense

In his supplemental brief, accused-appellant contends that he could not offer any other defense except denial and alibi, as he could not distort the truth that he was in his house at the time of the alleged rape in the evening of April 28, 2001 up to the wee hours of April 29, 2001.  He contends that although denial and alibi are the weakest defenses in criminal cases, consideration should also be given to the fact that denial becomes the most plausible line of defense considering the nature of the crime of rape where normally only two persons are involved.^[51][39]

It should be noted that for alibi to prosper, it is not enough for the accused to prove that he was in another place when the crime was committed. He must likewise prove that it was physically impossible for him to be present at the crime scene or its immediate vicinity at the time of its commission.^[52][40]

A review of the records in the instant case would reveal that accused-appellant failed to present convincing evidence that he did not leave his house, which is only about 150 meters away from the shack of AAA, in the evening of April 28, 2001. Significantly, it was also not physically impossible for accused-appellant to be present on the mountain where he allegedly raped AAA at the time it was said to have been committed.

Moreover, it has been held, time and again, that alibi, as a defense, is inherently weak and crumbles in light of positive identification by truthful witnesses.^[53][41]  It is evidence negative in nature and self-serving and cannot attain more credibility than the testimonies of prosecution witnesses who testify on clear and positive evidence.^[54][42]  Thus, there being no strong and credible evidence adduced to overcome the testimony of AAA, no weight can be given to the alibi of accused-appellant.

In addition, even if the alibi of accused-appellant appears to have been corroborated by his mother, Remina, and his sister, Margaret, said defense is unworthy of belief not only because accused-appellant was positively identified by AAA, but also because it has been held that alibi becomes more unworthy of merit where it is established mainly by the accused himself and his or her relatives, friends, and comrades-in-arms,^[55][43] and not by credible persons.^[56][44]

As between the statement made in an affidavit and that given in open court, the latter is superior

Accused-appellant contends also that there were material inconsistencies in the testimonies of the prosecution witnesses and in the latter’s respective affidavits, to wit: (1) whether accused-appellant’s penis was erect or not; and (2) whether AAA indeed recognized accused-appellant when they were already on the mountain or while they were still in the shack.^[57][45]

AAA testified in open court that accused-appellant tried to insert his penis into her vagina several times but was unable to do so since his penis has already softened.^[58][46] On the other hand, AAA stated in her affidavit that “the suspect ordered me to lay [sic] flatly on the ground and there he started to light and view my whole naked body while removing his pant [sic] and tried to insert his pennis [sic] on [sic] my vagina but I wonder it does not errect [sic].”^[59][47]  There is no inconsistency between AAA’s testimony and her affidavit. The only difference is that she failed to state in her affidavit that before accused-appellant unsuccessfully tried to insert his penis into AAA’s vagina, he had already succeeded twice in penetrating her private organ.

There is likewise no incompatibility between AAA’s affidavit stating that she came to know of accused-appellant as the culprit when they were on the mountain and his flashlight illuminated his face as he lay on top of her, and her testimony that while they were still in the shack, AAA was “not then sure” but already suspected that her rapist was accused-appellant “because of his hair.”^[60][48] In other words, AAA was not yet sure whether accused-appellant was the culprit while they were still in the shack, as she only became positively certain that it was him when the flashlight illuminated his face while they were on the mountain.^[61][49]

Nevertheless, discrepancies do not necessarily impair the credibility of a witness, for affidavits, being taken ex parte, are almost always incomplete and often inaccurate for lack of searching inquiries by the investigating officer or due to partial suggestions, and are, thus, generally considered to be inferior to the testimony given in open court.^[62][50]

The validity of conviction is not adversely affected by the fact that the judge who rendered judgment was not the one who heard the witnesses

Accused-appellant contends further that the judge who penned the appealed decision is different from the judge who heard the testimonies of the witnesses and was, thus, in no position to render a judgment, as he did not observe firsthand their demeanor during trial.

We do not agree. The fact that the trial judge who rendered judgment was not the one who had the occasion to observe the demeanor of the witnesses during trial, but merely relied on the records of the case, does not render the judgment erroneous, especially where the evidence on record is sufficient to support its conclusion.^[63][51] As this Court held in People v. Competente:

The circumstance that the Judge who rendered the judgment was not the one who heard the witnesses, does not detract from the validity of the verdict of conviction. Even a cursory perusal of the Decision would show that it was based on the evidence presented during trial and that it was carefully studied, with testimonies on direct and cross examination as well as questions from the Court carefully passed upon.^[64][52] (Emphasis supplied.)

Further, the transcripts of stenographic notes taken during the trial were extant and complete. Hence, there was no impediment for the judge to decide the case.

The guilt of accused-appellant has been established beyond reasonable doubt

After a careful examination of the records of this case, this Court is satisfied that the prosecution’s evidence established the guilt of accused-appellant beyond reasonable doubt.

In reviewing the evidence in rape cases, the following considerations should be made: (1) an accusation for rape can be made with facility, it is difficult to prove but more difficult for the person, though innocent, to disprove; (2) in view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; and (3) the evidence for the prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness of the evidence for the defense.^[65][53]  Nonetheless, it is also worth noting that rape is essentially committed in relative isolation or secrecy; thus, it is most often only the victim who can testify with regard to the fact of forced coitus.^[66][54]

In the instant case, accused-appellant is charged with two counts of rape¾one under paragraph 1(a) of Article 266-A of the Revised Penal Code and the other under par. 2 of Art. 266-A.

Pertinently, the elements of rape under par. 1(a) of Art. 266-A of the Code are the following: (1) that the offender is a man; (2) that the offender had carnal knowledge of a woman; and (3) that such act is accomplished by using force or intimidation.^[67][55]

On the other hand, the elements of rape under par. 2 of Art. 266-A of the Code are as follows: (1) that the offender commits an act of sexual assault; (2) that the act of sexual assault is committed by inserting his penis into another person’s mouth or anal orifice or by inserting any instrument or object into the genital or anal orifice of another person; and that the act of sexual assault is accomplished by using force or intimidation, among others.^[68][56]

Notably, the prosecution has sufficiently established the existence of the foregoing elements. When AAA was called to the witness stand, she gave a detailed narration of the incident that transpired in the evening of April 28, 2001 and early morning of April 29, 2001. AAA categorically asserted that accused-appellant had carnal knowledge of her and even sexually assaulted her against her will with the use of force, threat, or intimidation.

Particularly, AAA testified that accused-appellant threatened to riddle her and her son with bullets if they do not open the door of their shack. Accused-appellant thereafter forcibly pulled her hair and dragged her to the mountains. AAA pleaded for her life.  Nonetheless, accused-appellant boxed her every time she did not yield to his demands.  He boxed her thighs forcing AAA to sit, and he threatened to box her if she moves while he carried out his bestial desires.^[69][57]

AAA testified further that after accused-appellant satisfied his lust, he sexually assaulted her.  He inserted his fingers into her vagina and then he tried to pierce the same with a twig.  Subsequently, he inserted his flashlight into her vagina.^[70][58]  AAA was too weak to stop him. She had struggled to free herself from accused-appellant from the moment she was dragged from the shack until they reached the mountains.  However, accused-appellant still prevailed over her.  Notably, AAA was six months pregnant at that time.  She was frightened and hopeless.^[71][59]

Also, it should be noted that the findings in the medical examination of Dr. Ged-ang corroborated the testimony of AAA. While a medical examination of the victim is not indispensable in the prosecution of a rape case, and no law requires a medical examination for the successful prosecution of the case, the medical examination conducted and the medical certificate issued are veritable corroborative pieces of evidence, which strongly bolster AAA’s testimony.^[72][60]

Moreover, the police found the red t-shirt and blue shorts of AAA in the place where accused-appellant was said to have removed her clothes. In addition, AAA’s son, BBB, testified as to how accused-appellant threatened them in the evening of April 28, 2001, how he was able to identify accused-appellant as the perpetrator, and what his mother looked like when she returned home in the early morning of April 29, 2001. According to BBB, his mother was naked except for a dirty white jacket she was wearing. He also noticed that his mother had wounds and blood all over her body. All these are consistent with the testimony of AAA.^[73][61]

All told, we accordingly sustain accused-appellant’s conviction.

Award of Damages

The decision of the CA as to the damages awarded must be modified.  For rape under Art. 266-A, par. 1(d) of the Revised Penal Code, the CA was correct in awarding PhP 50,000 as civil indemnity and PhP 50,000 as moral damages.  However, for rape through sexual assault under Art. 266-A, par. 2 of the Code, the award of damages should be PhP 30,000 as civil indemnity and PhP 30,000 as moral damages.^[74][62]

We explained in People v. Cristobal that “for sexually assaulting a pregnant married woman, the accused has shown moral corruption, perversity, and wickedness. He has grievously wronged the institution of marriage. The imposition then of exemplary damages by way of example to deter others from committing similar acts or for correction for the public good is warranted.”^[75][63] Notably, there were instances wherein exemplary damages were awarded despite the absence of an aggravating circumstance. As we held in People v. Dalisay:

Prior to the effectivity of the Revised Rules of Criminal Procedure, courts generally awarded exemplary damages in criminal cases when an aggravating circumstance, whether ordinary or qualifying, had been proven to have attended the commission of the crime, even if the same was not alleged in the information. This is in accordance with the aforesaid Article 2230. However, with the promulgation of the Revised Rules, courts no longer consider the aggravating circumstances not alleged and proven in the determination of the penalty and in the award of damages. Thus, even if an aggravating circumstance has been proven, but was not alleged, courts will not award exemplary damages. x x x

x x x x

Nevertheless, People v. Catubig laid down the principle that courts may still award exemplary damages based on the aforementioned Article 2230, even if the aggravating circumstance has not been alleged, so long as it has been proven, in criminal cases instituted before the effectivity of the Revised Rules which remained pending thereafter. Catubig reasoned that the retroactive application of the Revised Rules should not adversely affect the vested rights of the private offended party.

Thus, we find, in our body of jurisprudence, criminal cases, especially those involving rape, dichotomized: one awarding exemplary damages, even if an aggravating circumstance attending the commission of the crime had not been sufficiently alleged but was consequently proven in the light of Catubig; and another awarding exemplary damages only if an aggravating circumstance has both been alleged and proven following the Revised Rules. Among those in the first set are People v. Laciste, People v. Victor, People v. Orilla, People v. Calongui, People v. Magbanua, People of the Philippines v. Heracleo Abello y Fortada, People of the Philippines v. Jaime Cadag Jimenez, and People of the Philippines v. Julio Manalili. And in the second set are People v. Llave, People of the Philippines v. Dante Gragasin y Par, and People of the Philippines v. Edwin Mejia. Again, the difference between the two sets rests on when the criminal case was instituted, either before or after the effectivity of the Revised Rules.

x x x x

Nevertheless, by focusing only on Article 2230 as the legal basis for the grant of exemplary damages — taking into account simply the attendance of an aggravating circumstance in the commission of a crime, courts have lost sight of the very reason why exemplary damages are awarded. Catubig is enlightening on this point, thus —

Also known as “punitive” or “vindictive” damages, exemplary or corrective damages are intended to serve as a deterrent to serious wrong doings, and as a vindication of undue sufferings and wanton invasion of the rights of an injured or a punishment for those guilty of outrageous conduct. These terms are generally, but not always, used interchangeably. In common law, there is preference in the use of exemplary damages when the award is to account for injury to feelings and for the sense of indignity and humiliation suffered by a person as a result of an injury that has been maliciously and wantonly inflicted, the theory being that there should be compensation for the hurt caused by the highly reprehensible conduct of the defendant — associated with such circumstances as willfulness, wantonness, malice, gross negligence or recklessness, oppression, insult or fraud or gross fraud — that intensifies the injury. The terms punitive or vindictive damages are often used to refer to those species of damages that may be awarded against a person to punish him for his outrageous conduct. In either case, these damages are intended in good measure to deter the wrongdoer and others like him from similar conduct in the future.

Being corrective in nature, exemplary damages, therefore, can be awarded, not only in the presence of an aggravating circumstance, but also where the circumstances of the case show the highly reprehensible or outrageous conduct of the offender. In much the same way as Article 2230 prescribes an instance when exemplary damages may be awarded, Article 2229, the main provision, lays down the very basis of the award. Thus, in People v. Matrimonio, the Court imposed exemplary damages to deter other fathers with perverse tendencies or aberrant sexual behavior from sexually abusing their own daughters. Also, in People v. Cristobal, the Court awarded exemplary damages on account of the moral corruption, perversity and wickedness of the accused in sexually assaulting a pregnant married woman. Recently, in People of the Philippines v. Cristino Cañada, People of the Philippines v. Pepito Neverio and The People of the Philippines v. Lorenzo Layco, Sr., the Court awarded exemplary damages to set a public example, to serve as deterrent to elders who abuse and corrupt the youth, and to protect the latter from sexual abuse.  

It must be noted that, in the said cases, the Court used as basis Article 2229, rather than Article 2230, to justify the award of exemplary damages. Indeed, to borrow Justice Carpio Morales’ words in her separate opinion in People of the Philippines v. Dante Gragasin y Par, “[t]he application of Article 2230 of the Civil Code strictissimi juris in such cases, as in the present one, defeats the underlying public policy behind the award of exemplary damages — to set a public example or correction for the public good.”^[76][64] (Emphasis supplied.)

Concomitantly, exemplary damages in the amount of PhP 30,000 should be awarded for each count of rape, in line with prevailing jurisprudence.^[77][65]

WHEREFORE, the appeal is DENIED.  The CA Decision dated September 30, 2008 in CA-G.R. CR-H.C. No. 02135 finding accused-appellant Ricky Alfredo guilty of rape is AFFIRMED with MODIFICATIONS.  As thus modified, accused-appellant in Criminal Case No. 01-CR-4213 is ordered to pay PhP 50,000 as civil indemnity, PhP 50,000 as moral damages, and PhP 30,000 as exemplary damages. In Criminal Case No. 01-CR-4214, accused-appellant is likewise ordered to pay PhP 30,000 as civil indemnity, PhP 30,000 as moral damages, and PhP 30,000 as exemplary damages.

SO ORDERED.

                                                          PRESBITERO J. VELASCO, JR.

                                                                        Associate Justice

WE CONCUR:

RENATO C. CORONA

Chief Justice

Chairperson

TERESITA J. LEONARDO-DE CASTRO        MARIANO C. DEL CASTILLO 

  Associate Justice                                                Associate Justice

JOSE PORTUGAL PEREZ

                                       Associate Justice

C E R T I F I C A T I O N

          Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

                                                                   RENATO C. CORONA

                                                                             Chief Justice