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HAROLD V. TAMARGO, Petitioner,vs.ROMULO AWINGAN, LLOYD ANTIPORDA and LICERIO ANTIPORDA,JR., Respondents.

D E C I S I O N

CORONA, J.:

This is a petition for review on certiorari1 of the November 10, 2006 decision2 and May18, 2007 resolution3 of the Court of Appeals (CA) in CA-G.R. SP No. 93610.

Atty. Franklin V. Tamargo and his eight-year-old daughter, Gail Franzielle, were shotand killed at around 5:15 p.m. of August 15, 2003 along Nueva Street corner EscoltaStreet, Binondo, Manila. The police had no leads on the perpetrators of the crime untila certain Reynaldo Geron surfaced and executed an affidavit dated September 12,2003. He stated that a certain Lucio Columna told him during a drinking spree thatAtty. Tamargo was ordered killed by respondent Lloyd Antiporda and that he

(Columna) was one of those who killed Atty. Tamargo. He added that he told theTamargo family what he knew and that the sketch of the suspect closely resembledColumna.4

After conducting a preliminary investigation and on the strength of Gerons affidavit,the investigating prosecutor5issued a resolution dated December 5, 2003 findingprobable cause against Columna and three John Does.6 On February 2, 2004, thecorresponding Informations for murder were filed against them in the Regional TrialCourt (RTC) of Manila, one assigned to Branch 27 for the death of Atty. Franklin

Tamargo, and the other to Branch 29 for the death of the minor GailFranzielle.7 Columna was arrested in the province of Cagayan on February 17, 2004and brought to Manila for detention and trial.8

On March 8, 2004, Columna (whose real name was Manuel, Jr.) executed an affidavitwherein he admitted his participation as "look out" during the shooting andimplicated respondent Romulo Awingan (alias "Mumoy") as the gunman and oneRichard Mecate. He also tagged as masterminds respondent Licerio Antiporda, Jr. andhis son, respondent Lloyd Antiporda.9 The former was the ex-mayor and the latter themayor of Buguey, Cagayan at that time. When the killing took place, Licerio Antipordawas in detention for a kidnapping case in which Atty. Tamargo was acting as privateprosecutor.

Pursuant to this affidavit, petitioner Harold V. Tamargo (brother of Atty. Tamargo)

filed a complaint against those implicated by Columna in the Office of the CityProsecutor of Manila.10

On April 19, 2004, Columna affirmed his affidavit before the investigatingprosecutor11 who subjected him to clarificatory questions.12

Respondents denied any involvement in the killings. They alleged that Licerio was acandidate for mayor in Buguey, Cagayan during the May 2004 elections and that thecase was instituted by his political opponents in order to derail his candidacy. TheAntipordas admitted that Atty. Tamargo was their political rival for the mayoralty postof Buguey. Atty. Tamargo had been defeated twice by Lloyd and once by Licerio.

Before the killing, Atty. Tamargo filed an election case against Lloyd and a kidnappingcase in the Sandiganbayan against Licerio. However, they claimed that both cases

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Consequently, respondent Awingan filed a special civil action for certiorari andprohibition in the CA docketed as CA-G.R. SP No. 93610. The Antipordas separatelyfiled another certiorari case docketed as CA-G.R. SP No. 94188.

In a decision dated November 10, 2006 in CA-G.R. SP No. 93610, the CA ruled thatthe RTC judge gravely abused her discretion because she arbitrarily left out of herassessment and evaluation the substantial matters that the DOJ Secretary had fully

taken into account in concluding that there was no probable cause against all theaccused. It also held that Columnas extrajudicial confession was not admissibleagainst the respondents because, aside from the recanted confession, there was noother piece of evidence presented to establish the existence of the conspiracy.Additionally, the confession was made only after Columna was arrested and not whilethe conspirators were engaged in carrying out the conspiracy.

After this decision was promulgated, CA-G.R. SP No. 93610 was consolidated with CA-G.R. SP No. 94188. The CA denied reconsideration in a resolution dated May 18,2007. In a decision dated August 24, 2007, the CA likewise granted the petition forcertiorari of respondents Antiporda.24

Petitioner filed this petition assailing the decision in CA-G.R. SP No. 93610. Later on,he filed an amended petition impleading respondents Antiporda and likewise assailingthe CA decision in CA-G.R. SP No. 94188. The Court treated this as a supplementalpetition.

The main issue for our resolution is whether or not the CA erred in finding that JudgeDaguna had committed grave abuse of discretion in denying the withdrawal of theInformations for murder against respondents.

Petitioner argues that, based on the independent assessment of Judge Daguna, therewas probable cause based on the earlier affidavit of Columna. She considered all thepieces of evidence but did not give credit to Columnas recantation.

Respondents counter that Judge Daguna committed grave abuse of discretion bylimiting her evaluation and assessment only to evidence that supported probablecause while completely disregarding contradicting evidence. They also contend thatColumnas extrajudicial confession was inadmissible against respondents because ofthe rule on res inter alios acta.

We find no merit in the petition.

It is settled that, when confronted with a motion to withdraw an Information (on the

ground of lack of probable cause to hold the accused for trial based on a resolution ofthe DOJ Secretary), the trial court has the duty to make an independent assessmentof the merits of the motion.25 It may either agree or disagree with therecommendation of the Secretary. Reliance alone on the resolution of the Secretarywould be an abdication of the trial courts duty and jurisdiction to determine aprimafacie case.26 The court must itself be convinced that there is indeed no sufficientevidence against the accused.27

We agree with the CA that Judge Daguna limited herself only to the following: (1)Columnas affidavit dated March 8, 2004 wherein he implicated the respondents inthe murders; (2) his affirmation of this affidavit during the April 19, 2004 clarificatory

hearing; (3) his letter dated October 29, 2004 and (4) the May 30, 2005 DOJresolution upholding the prosecutors recommendation to file the murder charges.28

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She completely ignored other relevant pieces of evidence such as: (1) Columnas May3, 2004 letter to respondent Lloyd Antiporda narrating the torture he suffered to forcehim to admit his participation in the crimes and to implicate the respondents; (2) hisMay 25, 2004 affidavit where he stated that neither he nor the respondents had anyinvolvement in the murders and (3) his testimony during the October 22, 2004clarificatory hearing wherein he categorically affirmed his May 3, 2004 letter and May25, 2004 affidavit.

We declared inJimenez v. Jimenez29 that

[although] there is no general formula or fixed rule for the determinationof probable cause since the same must be decided in the light of theconditions obtaining in given situations and its existence depends to alarge degree upon the finding or opinion of the judge conducting theexamination, such a finding should not disregard the facts beforethe judge nor run counter to the clear dictates of reason. Thejudge or fiscal, therefore, should not go on with the prosecutionin the hope that some credible evidence might later turn up

during trial for this would be a flagrant violation of a basic rightwhich the courts are created to uphold.30 (Emphasis supplied)

Had Judge Daguna reviewed the entire records of the investigation, shewould have seen that, aside from the pieces of evidence she relied on,there were others which cast doubt on them. We quote with approvalthe reflections of the CA on this point:

The selectivity of respondent RTC Judge for purposes of resolving the motion towithdraw the informationseffectively sidetracked the guidelines for an independentassessment and evaluation of the merits of the case. Respondent RTC Judge thusimpaired the substantial rights of the accused. Instead, she should have made a

circumspect evaluation by looking at everything made available to her at that point ofthe cases. No less than that was expected and required of her as a judicial officer.According to Santos v. Orda, Jr., the trial judge may make an independentassessment of the merits of the case based on the affidavits and counter-affidavits,documents, or evidence appended to the Information; the records of the publicprosecutor which the court may order the latter to produce before the court; or anyevidence already adduced before the court by the accused at the time the motion isfiled by the public prosecutor.31

Moreover, Judge Daguna failed to consider that Columnas extrajudicial confession inhis March 8, 2004 affidavit was not admissible as evidence against respondents in

view of the rule on res inter alios acta.

Res inter alios acta alteri nocere non debet. The rule on res inter alios acta providesthat the rights of a party cannot be prejudiced by an act, declaration, or omission ofanother.32 Consequently, an extrajudicial confession is binding only on theconfessant, is not admissible against his or her co-accused33 and is considered ashearsay against them.34 The reason for this rule is that:on a principle of good faith and mutual convenience, a mans own acts are bindingupon himself, and are evidence against him. So are his conduct and declarations. Yetit would not only be rightly inconvenient, but also manifestly unjust, that a manshould be bound by the acts of mere unauthorized strangers; and if a party ought notto be bound by the acts of strangers, neither ought their acts or conduct be used as

evidence against him.35

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An exception to the res inter alios acta rule is an admission made by a conspiratorunder Section 30, Rule 130 of the Rules of Court:Admission by conspirator. The act or declaration of a conspirator relating to theconspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act ordeclaration.1avvphi1

This rule prescribes that the act or declaration of the conspirator relating to the

conspiracy and during its existence may be given in evidence against co-conspiratorsprovided that the conspiracy is shown by independent evidence aside from theextrajudicial confession.36 Thus, in order that the admission of a conspirator may bereceived against his or her co-conspirators, it is necessary that (a) the conspiracy befirst proved by evidence other than the admission itself (b) the admission relates tothe common object and (c) it has been made while the declarant was engaged incarrying out the conspiracy.37 Otherwise, it cannot be used against the alleged co-conspirators without violating their constitutional right to be confronted with thewitnesses against them and to cross-examine them.38

Here, aside from the extrajudicial confession, which was later on recanted, no otherpiece of evidence was presented to prove the alleged conspiracy. There was no otherprosecution evidence, direct or circumstantial, which the extrajudicial confessioncould corroborate. Therefore, the recanted confession of Columna, which was the soleevidence against respondents, had no probative value and was inadmissible asevidence against them.

Considering the paucity and inadmissibility of the evidence presented against therespondents, it would be unfair to hold them for trial. Once it is ascertained that noprobable cause exists to form a sufficient belief as to the guilt of the accused, theyshould be relieved from the pain of going through a full blown court case.39 When, atthe outset, the evidence offered during the preliminary investigation is nothing morethan an uncorroborated extrajudicial confession of an alleged conspirator, the

criminal complaint should not prosper so that the system would be spared from theunnecessary expense of such useless and expensive litigation.40 The rule is all themore significant here since respondent Licerio Antiporda remains in detention for themurder charges pursuant to the warrant of arrest issued by Judge Daguna.41

Indeed, at that stage of the proceedings, the duty of Judge Daguna was only to satisfyherself whether there was probable cause or sufficient ground to hold respondents fortrial as co-conspirators. Given that she had no sufficient basis for a finding ofprobable cause against respondents, her orders denying the withdrawal of theInformations for murder against them were issued with grave abuse of discretion.Hence, we hold that the CA committed no reversible error in granting the petitions forcertiorari of respondents.

WHEREFORE, the petition is hereby DENIED.No pronouncement as to costs.

SO ORDERED.---

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,vs.ZAIDA KAMAD y AMBING, Accused-Appellant.

D E C I S I O N

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BRION, J.:

We review the decision1 of the Court of Appeals2 (CA) in CA-G.R. CR-H.C. No. 00505which affirmed in toto the decision3 of the Regional Trial Court (RTC), Branch 259,Paraaque City4 in Criminal Case Nos. 02-1236-7 finding Zaida5 Kamad y Ambing(accused-appellant) guilty beyond reasonable doubt of illegal sale of shabu underSection 5, Article II of Republic Act No. 9165 (RA 9165) or the Comprehensive

Dangerous Drugs Act of 2002.

Along with her boyfriend Leo Ramirez y Acosta (Leo) who was charged for illegalpossession of shabu, the accused-appellant was charged under an Information6 thatreads:

The above-named accused, not being lawfully authorized to possess or otherwise useany dangerous drug and without the corresponding license or prescription, did thenand there willfully, unlawfully and feloniously give away, distribute and sell to acustomer for P300.00 pesos one (1) small heat sealed transparent plastic sachetcontaining crystalline substance (shabu) weighing 0.20 gram, which when examined

were found positive for Methamphetamine Hydrochloride (shabu), a dangerous drug,in violation of the above-cited law.

CONTRARY TO LAW.

The accused-appellant pleaded not guilty on arraignment. Trial on the meritsthereafter ensued.

The prosecutions version of events is summarized below.

On October 16, 2002, the Philippine National Police (PNP) Drug Enforcement Unit of

the Southern Police District, Fort Bonifacio, Taguig (Taguig police) receivedinformation from an asset that a certain "Zaida" was engaged in the illegal sale ofshabu at Purok IV, Silverio Compound in Paraaque City. The Taguig police formed abuy-bust team composed of P/Insp. Antonio Parillas,7 PO3 Christopher Maulit8 (PO3Maulit), PO1 Manfoste,9 SPO2 Arthur Velasco, and SPO2 Ernesto Sanchez10 (SPO2Sanchez), as members. SPO2 Sanchez acted as poseur-buyer and received three (3)one hundred peso bills for use as marked money.

After surveillance of the area, the buy-bust team and their asset proceeded at around10:00 p.m. of October 16, 2002 to the target area where they immediately saw theaccused-appellant and Leo. The asset and SPO2 Sanchez approached the two whilethe rest of the buy-bust team watched from a distance. The asset introduced SPO2

Sanchez as a buyer of shabu and the accused-appellant asked him how much hewould buy. SPO2 Sanchez asked for P300.00 worth of shabu and gave the markedmoney; the accused-appellant thereafter handed him a plastic sachet containing asubstance suspected to be shabu. SPO2 Sanchez lighted a cigarette to give the pre-arranged signal for the buy-bust team to approach. SPO2 Sanchez arrested theaccused-appellant and recovered from her the P300.00 marked money. The buy-bustteam arrested Leo who was found in possession of one (1) plastic sachet alsosuspected to contain shabu.

The buy-bust team took the accused-appellant and Leo and the recovered plasticsachets to their office for investigation. The recovered plastic sachets, marked as "ES-

1-161009" and "ES-2-161002," were then brought to the PNP Crime Laboratory forqualitative examination; the tests yielded positive results for methamphetaminehydrochloride.11

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The defense expectedly presented a different version of events.

The accused-appellant12 denied the charge and claimed that she and Leo wereframed-up. At around 2:30 p.m. of October 16, 2002, the accused-appellant and Leowent to Leos cousins house. Since Leos cousin was not yet at home, she and Leowaited. After waiting for an hour, four (4) men wearing civilian clothes and carryingfirearms entered the house and introduced themselves as police officers. The

accused-appellant and Leo were frisked, but nothing was found in their possession.The police officers asked the accused-appellant where she kept the shabu; shereplied that she was not selling shabu. Afterwards, she and Leo were taken to thepolice headquarters where they were again frisked and asked the same question towhich they gave the same response. The police detained Leo and the accused-appellant for about a day and later brought them to the Prosecutors Office forinquest without showing them any shabu.

The RTC Ruling

After consideration of the evidence, the RTC decreed:

WHEREFORE, PREMISES CONSIDERED, finding both accused GUILTY beyondreasonable doubt, this Court hereby sentences Zaida Kamad to life imprisonment andto pay a fine of P500,000.00 for Violation of Section 5, Art. II, RA 9165

x x x x

SO ORDERED.13

The accused-appellant appealed the RTC decision to the CA, attacking the RTCsreliance on the presumption of regularity that the RTC found to have attended the

conduct of the buy-bust operation by the police. She argued that no presumption ofregularity could arise considering that the police violated NAPOLCOM rules by usingan asset; the rules prohibit the deputation of private persons as PNP civilianagents.14 The accused-appellant also pointed out the material inconsistencies in thetestimony of the prosecution witnesses that cast doubt on their credibility, namely:(a) the uncertainty of SPO2 Sanchez regarding the time the buy-bust team wasdispatched to the target area; (b) the confusion of PO3 Maulit on the identity of theteam leader of the buy-bust team; (c) the admitted mistake of PO3 Maulit that onlythe recovered plastic sachet was marked "ES" (standing for the initials of SPO2Sanchez), while the marked money was marked "MF" (standing for the initials ofP/Insp. Mariano F. Fegarido as commanding officer); and (d) the contradictorystatements of PO3 Maulit who testified that it was Leo who sold the shabu and that of

SPO2 Sanchez who testified that it was the accused-appellant who sold him theshabu.

The CA Ruling

The CA rejected the defense arguments and affirmed in toto the RTC findings. The CAruled that the prosecution satisfactorily established the accused-appellants guiltbased on the positive testimony of SPO2 Sanchez on the conduct of the buy-bustoperation; his testimony bore badges of truth. Accordingly, the CA found the accused-appellants uncorroborated denial undeserving of any weight. The CA brushed asideas a minor inconsistency the uncertainty in the testimony of SPO2 Sanchez on the

time the buy-bust operation took place. The CA also brushed aside the violation of theNAPOLCOM rules on the ground that the accused-appellant was arrested in flagrantedelicto for illegal sale of shabu committed in the presence of the prosecution

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witnesses who were police officers. Moreover, the CA held that the use of assets toaid police officers in buy-bust operations has been judicially recognized. The CA foundthat while the asset brokered the shabu transaction, he had no role in theapprehension of the accused-appellant and in the search and seizure of the shabufrom the accused-appellant.

The Issue

The only issue in this case is whether the accused-appellant is guilty beyondreasonable doubt of violation of Section 5, Article II of RA 9165 for the illegal sale of0.20 gram of shabu.

The Courts Ruling

We draw attention at the outset to the unique nature of an appeal in a criminal case;the appeal throws the whole case open for review and it is the duty of the appellatecourt to correct, cite and appreciate errors in the appealed judgment whether theyare assigned or unassigned.15 We find the present appeal meritorious on the basis of

such review.

As a general rule, the trial court's findings of fact, especially when affirmed by the CA,are entitled to great weight and will not be disturbed on appeal. This rule, however,admits of exceptions and does not apply where facts of weight and substance withdirect and material bearing on the final outcome of the case have been overlooked,misapprehended or misapplied.16 After due consideration of the records of this case,the evidence adduced, and the applicable law and jurisprudence, we hold that adeviation from the general rule is warranted.

In a prosecution for illegal sale of dangerous drugs, the following elements must beduly established: (1) proof that the transaction or sale took place; and (2) thepresentation in court of the corpus delicti or the illicit drug as evidence.17 Proof of thecorpus delicti in a buy-bust situation requires evidence, not only that the transacteddrugs actually exist, but evidence as well that the drugs seized and examined are thesame drugs presented in court. This is a condition sine qua non for conviction as thedrugs are the main subject of the illegal sale constituting the crime and theirexistence and identification must be proven for the crime to exist. As we discussbelow, the special characteristics of prohibited drugs necessitate their strictidentification by the prosecution.18

Our examination of the records shows that while the prosecution established throughthe testimony of SPO2 Sanchez that the sale of the prohibited drug by the accused-

appellant took place, we find that both the RTC and the CA failed to consider thefollowing infirmities in the prosecutions case: (1) the serious lapses in the RA 9165procedure committed by the buy-bust team in handling the seized shabu; and (2) thefailure of the police to comply with the chain of custody rule in handling the seizedshabu, resulting in the prosecutions failure to properly identify the shabu offered incourt as the same shabu seized from the accused-appellant on October 16, 2002.

Non-compliance with the prescribed procedureunder Section 21, Article II of RA 9165

In People v. Garcia,19 we emphasized the prosecutions duty to adduce evidence

proving compliance by the buy-bust team with the prescribed procedure laid downunder paragraph 1, Section 21, Article II of RA 9165. This provision reads:

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1) The apprehending team having initial custody and control of the drugs shall,immediately after seizure and confiscation, physically inventory and photographthe same in the presence of the accused or the person/s from whom suchitems were confiscated and/or seized, or his/her representative or counsel,a representative from the media and the Department of Justice (DOJ), andany elected public official who shall be required to sign the copies of theinventory and be given a copy thereof. [emphasis supplied]

The Implementing Rules and Regulations of RA 9165 under its Section 21(a) providesfurther details on how RA 9165 is to be applied, and provides too for a savingmechanism in case no strict compliance with the requirements took place. Section21(a) states:

(a) The apprehending office/team having initial custody and control of the drugs shall,immediately after seizure and confiscation, physically inventory and photograph thesame in the presence of the accused or the person/s from whom such items wereconfiscated and/or seized, or his/her representative or counsel, a representative fromthe media and the Department of Justice (DOJ), and any elected public official who

shall be required to sign the copies of the inventory and be given a copythereof: Provided, further that non-compliance with these requirementsunder justifiable grounds, as long as the integrity and the evidentiary valueof the seized items are properly preserved by the apprehendingofficer/team, shall not render void and invalid such seizures of and custodyover said items.[Emphasis supplied.]

Strict compliance with the prescribed procedure is required because of the illegaldrugs unique characteristic rendering it indistinct, not readily identifiable, and easilyopen to tampering, alteration or substitution either by accident or otherwise.20 Hence,the rules on the measures to be observed during and after the seizure, during thecustody and transfer of the drugs for examination, and at all times up to their

presentation in court.

In this case, SPO2 Sanchez testified on the seizure and the handling of the seizedshabu. The records show that his testimony and the identification he made in courtconstitute the totality of the prosecutions evidence on how the police handled andpreserved the integrity of the seized shabu. Significantly, SPO2 Sanchez merelystated in his testimony that:

Q: What else transpired when Zaida gave something to you and you, being theposeur buyer, gave the money to Zaida?

A: We brought them to our office.

x x x x

Q: What did you do with those plastic sachets containing white crystallinesubstance?

A: We brought them to the SPD Crime Lab for examination.21

Thus, he failed to provide specific details on how the seized shabu was markedalthough the evidence shows that the shabu was marked as "ES-1-161009" before it

was sent to a forensic laboratory. His testimony also failed to state whether themarking of the shabu was done immediately after its seizure (as Section 21 of RA

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9165 requires) or during the investigation. His testimony likewise failed to disclose ifa physical inventory and photography of the seized items had taken place, or if theyhad, whether these were undertaken in the presence of the accused or his counsel, ora representative from the media and the Department of Justice, and of an electiveofficial.

In sum, his testimony failed to show how the integrity and evidentiary value

of the item seized had been preserved; no explanation was ever given bySPO2 Sanchez to justify the non-compliance by the buy-bust team with theprescribed procedures. In fact, the records clearly reveal that theprosecution did not even acknowledge the procedural lapses committed bythe buy-bust team in the handling of the seized shabu.

The consequences of the above omissions must necessarily be grave for theprosecution under the rule that penal laws, such as RA 9165, are strictly construedagainst the government and liberally in favor of the accused.22 One consequence is toproduce doubts on the origins of the illegal drug presented in court,23 thus leading tothe prosecutions failure to establish the corpus delicti.24 Unless excused by the

saving mechanism, the acquittal of the accused must follow.

The non-compliance with thechain of custody rule

Separately from Section 21 violations, we also find the prosecution fatally remiss inestablishing an unbroken link in the chain of custody of the seized shabu; its evidenceis simply incomplete in establishing the necessary links in the handling of the seizedprohibited drug from the time of its seizure until its presentation in court.

In Mallillin v. People,25 we explained the chain of custody rule and what constitutessufficient compliance with this rule:

As a method of authenticating evidence, the chain of custody rule requires that theadmission of an exhibit be preceded by evidence sufficient to support a finding thatthe matter in question is what the proponent claims it to be. It would includetestimony about every link in the chain, from the moment the item was picked up tothe time it is offered into evidence, in such a way that every person who touched theexhibit would describe how and from whom it was received, where it was and whathappened to it while in the witnesses' possession, the condition in which it wasreceived and the condition in which it was delivered to the next link in the chain.

These witnesses would then describe the precautions taken to ensure that there hadbeen no change in the condition of the item and no opportunity for someone not in

the chain to have possession of the same. [emphasis supplied]26

We applied this ruling in People v. Garcia,27 People v. Gum-Oyen,28 People v.Denoman29 and People v. Coreche30 where we recognized the following links thatmust be established in the chain of custody in a buy-bust situation: first, the seizureand marking, if practicable, of the illegal drug recovered from the accused by theapprehending officer; second, the turnover of the illegal drug seized by theapprehending officer to the investigating officer; third, the turnover by theinvestigating officer of the illegal drug to the forensic chemist for laboratoryexamination; and fourth, the turnover and submission of the marked illegal drugseized from the forensic chemist to the court.

(a) The first link in the chain of custody

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We observe that SPO2 Sanchez testimony lacks specifics on how the seized shabuwas handled immediately after the accused-appellants arrest. Although the recordsshow that SPO2 Sanchez testified that he actually seized the shabu when he arrestedthe accused-appellant, he never disclosed the identity of the person/s who hadcustody and possession of the shabu after its seizure, nor that he retained possessionof the shabu from the place of the arrest until they reached the police station.

SPO2 Sanchez also failed to state the time and place as well as the identity of theperson/s who made the markings on the two (2) plastic sachets containing therecovered shabu seized from the accused-appellant and Leo on October 16, 2002.

(b) The second link in the chain of custody

We also observe that SPO2 Sanchez testimony regarding the post-arrest policeinvestigation failed to provide particulars on whether the shabu was turned over tothe investigator. The records only identify the name of the investigator as one SPO1Nuestro before whom SPO2 Sanchez and PO3 Maulit executed a Joint Affidavit ofArrest dated October 17, 2002.31 Thus, a big gap exists on who had custody and

possession of the shabu prior to, during and immediately after the policeinvestigation, and how the shabu was stored, preserved, labeled and recorded fromthe time of its seizure up to its receipt by the forensic laboratory.

(c) The third link in the chain of custody

The third link in the chain is represented by two (2) pieces of documentary evidenceadduced by the prosecution consisting of the letter-request dated October 17,200232 of Police Superintendent Mariano F. Fegarido as Chief of the Southern PoliceDistrict Drug Enforcement Group and the Physical Science Report No. D-1502-02prepared by Engr. Richard Allan B. Mangalip as the forensic chemist.33

These documents reveal that the recovered plastic sachets of shabu bearing themarkings "ES-1-161002" and "ES-2-161002" were sent to the forensic laboratorysealed in one (1) small brown envelope bearing unidentified signatures. On the sameday, the PNP Crime Laboratory received this letter-request along with the submittedspecimens. The specimens were then subjected to qualitative examination whichyielded positive for methylamphetamine hydrochloride.

These pieces of evidence notably fail to identify the person who personally broughtthe seized shabu to the PNP Crime Laboratory. They also fail to clearly identify theperson who received the shabu at the forensic laboratory pursuant to the letter-request dated October 17, 2002, and who exercised custody and possession of the

shabu after it was examined and before it was presented in court. Neither was thereany evidence adduced showing how the seized shabu was handled, stored andsafeguarded pending its presentation in court.

(d) The fourth link in the chain of custody

The fourth link presents a very strange and unusual twist in the prosecutionsevidence in this case. Although the forensic chemist was presented in court, we findthat his offered testimony related to a shabu specimen other than that seized in thebuy-bust operation of October 16, 2002. Specifically, his testimony pertained toshabu seized by the police on October 12, 2002. This is borne by the following

exchanges:

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FISCAL UY: The testimony of the witness is being offered to prove . . . that he isthe one who cause [sic] the examination of the physical evidence subject ofthis case containing with white crystalline substance placed inside the plasticsachet weighing 0.20 grams and 0.30 grams with markings of EBC and EBC-1that I reduced findings after the examination conducted.

x x x x

Q And with the cause of the performance of your duties, were you able toreceive a letter request relevant to this case specifically a drug test request,dated October 12, 2002 from PS/Insp. Wilfredo Calderon. Do you have theletter request with you?

A Yes, sir.

Q The witness presented to this representation the letter request datedOctober 12, 2002 for purposes of identification, respectfully request that it bemarked in evidence as Exhibit A. In this Exhibit A Mr. Officer, were you able to

receive the evidence submitted specifically a small brown stapled wireenvelope with signature containing with white crystalline substance inside andwith markings EBC- 12/10/02 and EBC-1 12/10/02. After you received thisspecimen what action did you take or do?

A Upon receiving, I read and understand the content of the letter request afterwhich, I stamped and marked the letter request and then record it on thelogbook and after recording it on the logbook, I performed the test fordetermination of the presence of dangerous drug on the specimen.

x x x x

Q Now, after those tests conducted what was the result of the examination?

A It gives positive result for Methamphetamine Hydrochloride or otherwiseknown as shabu, a dangerous drug.

x x x x

Q At this juncture your Honor, the witness handed with this representation abrown envelope with markings D-1487-02, and the signature and the date 12October 02, now Mr. Witness tell us who placed these markings on this brownenvelope?

A I am the one who personally made the markings, sir.

Q And in the face of this brown envelope there is a printed name PO1 EdwinPlopinio and the signature and the date 12 October 2002. Do you know whoplaced who placed those markings?

A I have no idea.

Q At this juncture your Honor, this representation proceeded to open the brownenvelope. May I respectfully request that this brown envelope be marked in

evidence as Exhibit B. And inside this brown envelope are three pieces ofplastic sachets inside which are white crystalline substance with markings EPC

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12 October 02 and EPC-1 12 October 02. May I respectfully request that theseplastic sachets with white substance inside be marked in evidence as Exhibit B-1 and B-2. And in these plastic sachets with white crystalline inside is amasking tape with the signature and letters are RAM, do you know who placedthose letters?

A I am the one who placed that markings sir.

Q And what RAM stands for?

A That stands for my name Richard Allan Mangalip sir.

Q You mentioned that you reduced your findings in writing, do you have theofficial finding with you?

A Yes, sir.

Q At this juncture the witness handed to this representation the physical

science report no. D-1487-2 for purposes of identification respectfully requestthat this specimen be marked in evidence as Exhibit C. And in this Exhibit C,there is a signature above the typewritten name Engineer Richard Allan B.Mangalip, do you whose signature is this Mr. Witness? 34 [Emphasis supplied]

A That is my signature sir.

Q Respectfully request that the signature appearing in Exhibit C be marked inevidence as Exhibit C-1. You stated earlier that you cause the weight of thewhite crystalline substance in this plastic sachet, what the weights of this whitecrystalline substance?

A For the specimen A, it is .20 grams and the specimen B, it is .30 gram.

Q May I respectfully request that this weight indicated in this physical sciencereport now mark in evidence as Exhibit C-2. I have no further questions to thewitness your Honor.

x x x x

Aside from the different dates of seizure, we note that the shabu identified andpresented in court as evidence through the testimony of the forensic chemist,showed characteristics distinct from the shabu from the buy-bust sale of October 16,2002:

First, there were different markings made on the plastic sachets of the shaburecovered on October 12, 2002. As testified to, one plastic sachet of shabu wasmarked, "EBC 12 October 02," while the other plastic sachet of shabu wasmarked, "EBC-1 12 October 02";35

Second, there was a different sealed brown envelope used where a printedname and signature of one "PO1 Edwin Plopino" and the date "12 October2002" were written; 36

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Third, the examination of the shabu by the PNP Crime Laboratory was madepursuant to a different letter-request for examination dated October 12, 2002written by one P/Insp. Wilfredo Calderon;37 and

Fourth, the results of the shabu testified to by the forensic chemist in court wascontained in a different forensic laboratory report known as Physical ScienceReport No. D-1487-2.38

We highlight these characteristics because they are different from the documentaryevidence the prosecution formally offered39 consisting of the letter-request datedOctober 17, 200240 and the Physical Science Report No. D-1502-02.41 The testimoniesof SPO2 Sanchez and PO3 Maulit as well as the submitted documentary evidencereferred to the plastic sachets of shabu through their markings of "ES-1-161002" and"ES-2-161002."42

From all these, we find it obvious that some mistake must have been made in thepresentation of the prosecutions evidence. The prosecution, however, left thediscrepancies fully unexplained. To reiterate, the forensic chemist testified to a

specimen dated October 12, 2002, or one secured way before the buy-bust ofOctober 16, 2002, but marked as evidence documents relating to the specimen ofOctober 16, 2002. Strangely, even the defense disregarded the discrepancies. In hiscomment on the offer of evidence, the defense simply stated, among others, by wayof stipulation, that "the forensic chemical officer only conducted a qualitativeexamination of the specimen he examined and not the quantitativeexamination."43 Coming immediately after the offer of evidence that mentioned theplastic sachets containing white crystalline substances with markings "ES-1 16/10/02"and "ES-2 16/10/02," and the Physical Science Report No. D-1502-02,44 the defensewas clearly sleeping on its feet when it reacted to the prosecutions offer of evidence.

But the defense was not alone in glossing over the discrepancies between the

testimony for the prosecution and the offered evidence, as both the RTC and CA alsofailed to notice the glaring flaws in the prosecutions evidence. Apparently, becausethe parties did not point out these discrepancies while the appellate court did notclosely review the records of the proceedings, the discrepancies were not taken intoaccount in the decision now under review.

These observations bring us full circle to our opening statement under the Courtsruling on the kind and extent of review that an appellate court undertakes in acriminal case; the appeal opens the whole case for review, with the appellate courtcharged with the duty to cite and appreciate the errors it may find in the appealed

judgment, whether these errors are assigned or unassigned. This is one such instance

where we are duty bound to rectify errors that, although unnoticed below andunassigned by the parties, are clearly reflected in the records of the case.

The Conclusion

Given the flagrant procedural lapses the police committed in handling the seizedshabu and the obvious evidentiary gaps in the chain of its custody, a presumption ofregularity in the performance of duties cannot be made in this case. A presumption ofregularity in the performance of official duty is made in the context of an existing ruleof law or statute authorizing the performance of an act or duty or prescribing aprocedure in the performance thereof. The presumption applies when nothing in therecord suggests that the law enforcers deviated from the standard conduct of officialduty required by law; where the official act is irregular on its face, the presumptioncannot arise.45 In light of the flagrant lapses we noted, the lower courts were

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obviously wrong when they relied on the presumption of regularity in theperformance of official duty.

We rule, too, that the discrepancy in the prosecution evidence on the identity of theseized and examined shabu and that formally offered in court cannot but lead toserious doubts regarding the origins of the shabu presented in court. This discrepancyand the gap in the chain of custody immediately affect proof of the corpus delicti

without which the accused must be acquitted.1avvphi1

From the constitutional law point of view, the prosecutions failure to establish withmoral certainty all the elements of the crime and to identify the accused as theperpetrator signify that it failed to overturn the constitutional presumption ofinnocence that every accused enjoys in a criminal prosecution. When this happens, asin this case, the courts need not even consider the case for the defense in decidingthe case; a ruling for acquittal must forthwith issue.

WHEREFORE, premises considered, we hereby REVERSE and SET ASIDE the March28, 2006 decision of the Court of Appeals in CA-G.R. CR-H.C. No. 00505 affirming the

decision of conviction dated October 27, 2004 of the Regional Trial Court, Branch259, Paraaque City in Criminal Case Nos. 02-1236-7 for illegal sale of shabu underSection 5, Article II of Republic Act No. 9165. Accused-appellant ZAIDA KAMAD yAMBING is hereby declaredACQUITTED and ordered immediately RELEASED fromdetention, unless she is confined for any other lawful cause.

The Director of the Bureau of Corrections is DIRECTED to IMPLEMENT this Decisionand to report to this Court the action taken hereon within five (5) days from receipt.

SO ORDERED.

---

PEOPLE OF THE PHILIPPINES, Appellee,vs.MICHAEL A. HIPONA, Appellant.

D E C I S I O N

CARPIO MORALES, J.:

Michael A. Hipona (appellant) was convicted by Decision of September 10, 20021 ofthe Regional Trial Court of Cagayan de Oro City, Branch 18 with "Rape with Homicide

(and Robbery)" [sic]. His conviction was affirmed by the Court of Appeals by Decisionof January 28, 2008.2

The Second Amended Information charged appellant together with Romulo Seva, Jr.and one John Doe withRobbery with Rape and Homicide as follows:

That on or about June 12, 2000 at 1:00 oclock dawn at District 3, Isla Copa,Consolation, Cagayan de Oro City, Philippines, and within the jurisdiction of thisHonorable Court, the above-named accused, conspiring, confederating together, andmutually helping one another, by means of force and intimidation, did then and therewillfully, unlawfully and feloniously have carnal knowledge with the offended party

(AAA) who is the Aunt of accused Michael A. Hipona, she being the younger sister ofthe accuseds mother and against her will, that on occasion of the said rape, accused,

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with evident premeditation, treachery and abuse of superior strength, and dwelling,with intent to kill and pursuant to their conspiracy, choked and strangulated said AAAwhich strangulation resulted to the victims untimely death. That on the saidoccasion the victims brown bag worth P3,800.00; cash money in the amount of noless than P5,000.00; and gold necklace were stolen by all accused but the goldnecklace was later on recovered and confiscated in the person of accused Michael A.Hipona.3 (emphasis and underscoring in the original)

The following facts are not disputed.

AAA4 was found dead on the morning of June 12, 2000 in her house in Isla Copa,Consolation, Cagayan de Oro City. She was raped, physically manhandled andstrangled, which eventually led to her death. Her furniture and belongings were foundstrewn on the floor. AAAs necklace with two heart-shaped pendants bearing herinitials and handbag were likewise missing.

Upon investigation, the local police discovered a hole bored into the lawanitwall ofthe comfort room inside AAAs house, big enough for a person of medium build to

enter. The main electrical switch behind a "shower curtain" located at the "backroom" was turned off, drawing the police to infer that the perpetrator is familiar withthe layout of AAAs house.

SPO1 Bladimir Agbalog of the local police thus called for a meeting of AAAs relativesduring which AAAs sister BBB, who is appellants mother, declared that her son-appellant had told her that "Mama, Im sorry, I did it because I did not have themoney," and he was thus apologizing for AAAs death. BBB executed an affidavitaffirming appellants confession.5

On the basis of BBBs information, the police arrested appellant on June 13, 2000 orthe day after the commission of the crime. He was at the time wearing AAAs missingnecklace. When on even date he was presented to the media and his relatives,appellant apologized but qualified his participation in the crime, claiming that he onlyacted as a look-out, and attributed the crime to his co-accused Romulo B. Seva, Jr.(Seva) alias "Gerpacs" and a certain "Reypacs."

A day after his arrest or on June 14, 2000, appellant in an interview which wasbroadcasted, when asked by a radio reporter "Why did you do it to your aunt?,"answered "Because of my friends and peers." When pressed if he was intoxicated orwas on drugs when he "did it," appellant answered that he did it because of hisfriends and of poverty.

Appellants co-accused Seva was later arrested on July 9, 2000, while "Reypacs"remained at large.

Appellant entered a plea of not guilty while Seva refused to enter a plea, hence, thetrial court entered a "not guilty" plea on his behalf.

Post mortem examination of AAA revealed the following findings:

Rigor mortis, generalized, Livor mortis, back, buttocks, flanks, posterioraspect of neck and extremities (violaceous).

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Face, markedly livid. Nailbeds, cyanotic. With extensive bilateralsubconjunctival hemorrhages and injections. Petecchial hemorrhagesare likewise, noted on the face and upper parts of neck.

ABRASIONS, with fibrin: curvilinear; three (3) in number; measuring1.1x0.4 cms., 0.8x0.3 cms., and 0.6x0.1 cm.; within an area of 2.8x1.1cms. at the left side of the neck, antero-lateral aspect.

HEMATOMAS, violaceous; hemispherical in shapes, highly characteristicof bite marks: 3.5 x 0.4 cms. and 4.1x1.4 cms.; located at the right lowerbuccal region, lateral and medial aspects, respectively.

SOFT TISSUE DEFECT, with irregular edges; 2.5 x 2.7 cms.; left thigh,distal 3rd, medial aspect; involving only the skin and underlying adiposetissues; with an approximate depth of 1.6 cms.

ABRASIONS, with fibrin, curvilinear in shapes; 0.6x0.3 cm. and0.5x0.3cm., right upper eyelid; 0.4x0.2 cms. and 0.3x 0.2 cms, right

upper arm, distal 3rd, medial aspect; 0.5x0.3 cm., right forearm,proximal 3rd, medial aspect; 0.7x0.3 cm., left elbow; 0.5x0.2 cm., leftforearm, middle 3rd, posterior aspect.

HEMATOMA, violaceous: 2.2x2.5 cms., right upper arm, middle 3rd,medial aspect

DEPRESSED FRACTURE, body of thyroid cartilage, lateral aspects,bilateral.

PETECCHIAL HEMORRHAGES, subpleural, bilateral, and sub-epicardial.

x x x x

GENITAL FINDINGS:

Subject is menstruating. Pubic hairs, fully grown, abundant. Labiaemajora and minora, both coaptated. Vestibular mucosa, pinkish, smooth.Hymen, short, thin with COMPLETE, FRESH HYMENAL LACERATION (withfibrin and fresh reddish soft blood clot) at 6:00 oclock position, andextending to the posterior aspect of vestibular mucosa up to the area offourchette. Hymenal orifice originally annular, admits a glass tube of 2.5cms. diameter with moderate resistance. Vaginal rugosities, prominent.

Cervix, firm. Uterus, small.

VVVVVVVVVVV

CAUSE OF DEATH: Asphyxia by strangulation (manual).

REMARKS: Genital injury noted, age of which is compatible with sexualintercourse(s) with man/menon or about June 11-122000.6 (underscoring supplied)

Albeit appellants mother BBB refused to take the witness stand, SPO1 Agbalog and

Consuelo Maravilla, another relative of appellant, testified on BBBs declaration givenduring the meeting of relatives.

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Appellant refused to present evidence on his behalf while Seva presented evidence tocontrovert the evidence on his alleged participation in the crime.

By Decision of September 10, 2002, the trial court, after considering circumstantialevidence, viz:Based on the foregoing circumstances, specially of his failure to explain why he was

in possession of victims stolen necklace with pendants, plus his confession to themedia in the presence of his relatives, and to another radio reporter "live-on-the-air"about a day after his arrest, sealed his destiny to perdition and points to a conclusionbeyond moral certainty that his hands were soiled and sullied by blood of his ownAunt.7 (underscoring supplied), found appellant guilty beyond reasonable doubt of"Rape with Homicide (and Robbery)." [sic]. It acquitted Seva. Thus the trial courtdisposed:

WHEREFORE, in view of all the foregoing, the Court finds accused MICHAEL HIPONAGUILTY beyond reasonable doubt of a special complex crime of Rape withHomicide (and Robbery) punishable under Articles 266-A and 266-B, of the RevisedPenal Code, as amended by R.A. 8353, and after taking into account the genericaggravating circumstance of dwelling, without a mitigating circumstance,accused MICHAEL HIPONA is hereby sentenced and SO ORDERED to sufferthe supreme penalty of DEATH by lethal injection, plus the accessory penalties.He is hereby SO ORDERED to pay the heirs the sum of One Hundred Thousand(P100,000.00) Pesos, as indemnity. Another One Hundred Thousand (P100,000.00)Pesos, as moral damages. In order to further give accused Michael Hipona a lessonthat would serve as a warning to others, he is also directed and SO ORDERED to payanother Fifty Thousand (P50,000.00) Pesos, as exemplary damages.

For failure on the part of the prosecution to prove the guilt of the accused RomuloSeva, Jr., beyond reasonable doubt, it is SO ORDERED that he should be acquitted

and it is hereby ACQUITTED of the crime charged, and is hereby released fromcustody unless detained for other legal ground.

Pursuant to Section 22 of R.A. 7659, and Section 10 of Rule 122 of the Rules of Court,let the entire record be forwarded to the Supreme Court for automaticreview."8 (emphasis in the original; underscoring supplied)

On elevation of the records of the case, the Court, following People v.Mateo,9 referred the same to the Court of Appeals.

Appellant maintains that his guilt was not proven beyond reasonable doubt.10

As stated early on, the Court of Appeals sustained appellants conviction. It, however,

modified the penalty11imposed, and the amount of damages awarded by the trialcourt. Thus the appellate court, by the challenged Decision of January 28, 2008,disposed:

WHEREFORE, the Decision of the lower court is hereby AFFIRMED with the followingMODIFICATIONS:

1. That the penalty imposed is reclusion perpetua;2. That appellant is hereby ordered to pay the heirs of AAA the following: thesum of P100,000.00 as civil indemnity; P75,000.00 as moral damages;and P100,000.00 as exemplary damages.

SO ORDERED.12

(underscoring supplied)

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The records of the case were elevated to this Court in view of the Notice of Appealfiled by appellant. Both the People and appellant manifested that they were no longerfiling any supplemental briefs.

The appeal is bereft of merit.

For circumstantial evidence to suffice to convict an accused, the following requisitesmust concur: (1) there is more than one circumstance; (2) the facts from which the

inferences are derived are proven; and (3) the combination of all the circumstances issuch as to produce a conviction beyond reasonable doubt.13

The confluence of the following established facts and circumstances sustains theappellate courts affirmance of appellants conviction: First, appellant was frequentlyvisiting AAA prior to her death, hence, his familiarity with the layout of thehouse; second, appellant admitted to his relatives and the media that he was presentduring commission of the crime, albeit only as a look-out; third, appellant was inpossession of AAAs necklace at the time he was arrested; and fourth, appellantextrajudicially confessed to the radio reporter that he committed the crime due to hispeers and because of poverty.

Appellant argues that he should only be held liable for robbery and not for thecomplex crime of "Rape with Homicide (and Robbery)" [sic]. He cites the testimony ofprosecution witness Aida Viloria-Magsipoc, DNA expert of the National Bureau ofInvestigation, that she found the vaginal smears taken from AAA to be negative ofappellants DNA.

Appellants argument fails. Presence of spermatozoa is not essential in finding thatrape was committed, the important consideration being not the emission of semenbut the penetration of the female genitalia by the male organ.14 As underlined above,the post-mortem examination of AAAs body revealed fresh hymenal lacerationswhich are consistent with findings of rape.

Not only does appellants conviction rest on an unbroken chain of circumstantialevidence. It rests also on his unbridled admission to the media. People v.

Andan instructs:Appellants confessions to the media were likewise properly admitted. Theconfessions were made in response to questions by news reporters, not by the policeor any other investigating officer. We have held that statements spontaneously madeby a suspect to news reporters on a televised interview are deemed voluntary andare admissible in evidence.15 (underscoring supplied)

Appellant argues, however, that the questions posed to him by the radio broadcasterwere vague for the latter did not specify what crime was being referred to when he

questioned appellant. But, as the appellate court posited, appellant should havequalified his answer during the interview if indeed there was a need. Besides, he hadthe opportunity to clarify his answer to the interview during the trial. But, as statedearlier, he opted not to take the witness stand.1avvphi1

The Court gathers, however, that from the evidence for the prosecution, robberywas the main intent of appellant, and AAAs death resulted by reason of or on theoccasion thereof. Following Article 294(1)16 and Article 62(1)117of the Revised PenalCode, rape should have been appreciated as an aggravating circumstance instead.18

A word on the amount of exemplary damages awarded. As the Court finds the awardof P100,000 exemplary damages excessive, it reduces it to P25,000, in consonance

with prevailing jurisprudence.19

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WHEREFORE, the Decision of January 28, 2008 of the Court of Appeals ishereby AFFIRMED withMODIFICATION. Appellant, Michael A. Hipona is found guiltybeyond reasonable doubt of Robbery with Homicide under Article 294(1) of theRevised Penal Code. He is accordingly sentenced to reclusion perpetua. And theaward of exemplary damages is reduced to P25,000. In all other respects, theDecision is affirmed.

SO ORDERED.

---

IN RE: PETITION FOR CANCELLATION AND CORRECTION OF ENTRIES IN THERECORD OF BIRTH,

EMMA K. LEE, Petitioner,vs.COURT OF APPEALS, RITA K. LEE, LEONCIO K. LEE, LUCIA K. LEE-ONG, JULIANK. LEE, MARTIN K. LEE, ROSA LEE-VANDERLEK, MELODY LEE-CHIN, HENRY K.

LEE, NATIVIDAD LEE-MIGUEL, VICTORIANO K. LEE, and THOMAS K. LEE,represented by RITA K. LEE, as Attorney-in-Fact, Respondents.

D E C I S I O N

ABAD, J.:

This case is about the grounds for quashing a subpoena ad testificandum and aparents right not to testify in a case against his children.

The Facts and the Case

Spouses Lee Tek Sheng (Lee) and Keh Shiok Cheng (Keh) entered the Philippines inthe 1930s as immigrants from China. They had 11 children, namely, Rita K. Lee,Leoncio K. Lee, Lucia K. Lee-Ong, Julian K. Lee, Martin K. Lee, Rosa Lee-Vanderlek,Melody Lee-Chin, Henry K. Lee, Natividad Lee-Miguel, Victoriano K. Lee, and ThomasK. Lee (collectively, the Lee-Keh children).

In 1948, Lee brought from China a young woman named Tiu Chuan (Tiu), supposedlyto serve as housemaid. The respondent Lee-Keh children believe that Tiu left the Lee-Keh household, moved into another property of Lee nearby, and had a relation withhim.

Shortly after Keh died in 1989, the Lee-Keh children learned that Tius children withLee (collectively, the Lees other children) claimed that they, too, were children of Leeand Keh. This prompted the Lee-Keh children to request the National Bureau ofInvestigation (NBI) to investigate the matter. After conducting such an investigation,the NBI concluded in its report:

[I]t is very obvious that the mother of these 8 children is certainly not KEH SHIOKCHENG, but a much younger woman, most probably TIU CHUAN. Upon furtherevaluation and analysis by these Agents, LEE TEK SHENG is in a quandary in fixingthe age of KEH SHIOK CHENG possibly to conform with his grand design of making his8 children as their own legitimate children, consequently elevating the status of his

second family and secure their future. The doctor lamented that this complaint would

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not have been necessary had not the father and his second family kept on insistingthat the 8 children are the legitimate children of KEH SHIOK CHENG.1

The NBI found, for example, that in the hospital records, the eldest of the Lees otherchildren, Marcelo Lee (who was recorded as the 12th child of Lee and Keh), was bornof a 17-year-old mother, when Keh was already 38 years old at the time. Another ofthe Lees other children, Mariano Lee, was born of a 23-year-old mother, when Keh

was then already 40 years old, and so forth. In other words, by the hospital records ofthe Lees other children, Kehs declared age did not coincide with her actual agewhen she supposedly gave birth to such other children, numbering eight.

On the basis of this report, the respondent Lee-Keh children filed two separatepetitions, one of them before the Regional Trial Court (RTC) of Caloocan City2 inSpecial Proceeding C-1674 for the deletion from the certificate of live birth of thepetitioner Emma Lee, one of Lees other children, the name Keh and replace thesame with the name Tiu to indicate her true mothers name.

In April 2005 the Lee-Keh children filed with the RTC an ex parte request for the

issuance of a subpoena ad testificandum to compel Tiu, Emma Lees presumedmother, to testify in the case. The RTC granted the motion but Tiu moved to quashthe subpoena, claiming that it was oppressive and violated Section 25, Rule 130 ofthe Rules of Court, the rule on parental privilege, she being Emma Leesstepmother.3 On August 5, 2005 the RTC quashed the subpoena it issued for beingunreasonable and oppressive considering that Tiu was already very old and that theobvious object of the subpoena was to badger her into admitting that she was EmmaLees mother.

Because the RTC denied the Lee-Keh childrens motion for reconsideration, they fileda special civil action of certiorari before the Court of Appeals (CA) in CA-G.R. SP92555. On December 29, 2006 the CA rendered a decision,4 setting aside the RTCs

August 5, 2005 Order. The CA ruled that only a subpoena duces tecum, not asubpoena ad testificandum, may be quashed for being oppressive or unreasonableunder Section 4, Rule 21 of the Rules of Civil Procedure. The CA also held that Tiusadvanced age alone does not render her incapable of testifying. The party seeking toquash the subpoena for that reason must prove that she would be unable towithstand the rigors of trial, something that petitioner Emma Lee failed to do.

Since the CA denied Emma Lees motion for reconsideration by resolution of May 8,2007,5 she filed the present petition with this Court.

The Question Presented

The only question presented in this case is whether or not the CA erred in ruling thatthe trial court may compel Tiu to testify in the correction of entry case thatrespondent Lee-Keh children filed for the correction of the certificate of birth ofpetitioner Emma Lee to show that she is not Kehs daughter.

The Ruling of the Court

Petitioner Emma Lee claims that the RTC correctly quashed the subpoena adtestificandum it issued against Tiu on the ground that it was unreasonable andoppressive, given the likelihood that the latter would be badgered on oral

examination concerning the Lee-Keh childrens theory that she had illicit relation withLee and gave birth to the other Lee children.

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But, as the CA correctly ruled, the grounds citedunreasonable and oppressiveareproper for subpoena ad duces tecum or for the production of documents and things inthe possession of the witness, a command that has a tendency to infringe on the rightagainst invasion of privacy. Section 4, Rule 21 of the Rules of Civil Procedure, thusprovides:

SECTION 4. Quashing a subpoena. The court may quash a subpoena duces tecum

upon motion promptly made and, in any event, at or before the time specified thereinif it is unreasonable and oppressive, or the relevancy of the books, documents orthings does not appear, or if the person in whose behalf the subpoena is issued failsto advance the reasonable cost of the production thereof.

Notably, the Court previously decided in the related case ofLee v. Court ofAppeals6 that the Lee-Keh children have the right to file the action for correction ofentries in the certificates of birth of Lees other children, Emma Lee included. TheCourt recognized that the ultimate object of the suit was to establish the fact thatLees other children were not children of Keh. Thus:

It is precisely the province of a special proceeding such as the one outlined underRule 108 of the Revised Rules of Court to establish the status or right of a party, or aparticular fact. The petitions filed by private respondents for the correction ofentries in the petitioners' records of birth were intended to establish thatfor physical and/or biological reasons it was impossible for Keh Shiok Chengto have conceived and given birth to the petitioners as shown in their birthrecords. Contrary to petitioners' contention that the petitions before thelower courts were actually actions to impugn legitimacy, the prayer thereinis not to declare that petitioners are illegitimate children of Keh ShiokCheng, but to establish that the former are not the latter's children. Thereis nothing to impugn as there is no blood relation at all between Keh ShiokCheng and petitioners.7(Underscoring supplied)

Taking in mind the ultimate purpose of the Lee-Keh childrens action, obviously, theywould want Tiu to testify or admit that she is the mother of Lees other children,including petitioner Emma Lee. Keh had died and so could not give testimony thatLees other children were not hers. The Lee-Keh children have, therefore, a legitimatereason for seeking Tius testimony and, normally, the RTC cannot deprive them oftheir right to compel the attendance of such a material witness.

But petitioner Emma Lee raises two other objections to requiring Tiu to come to courtand testify: a) considering her advance age, testifying in court would subject her toharsh physical and emotional stresses; and b) it would violate her parental right not

to be compelled to testify against her stepdaughter.

1. Regarding the physical and emotional punishment that would be inflicted onTiu if she were compelled at her age and condition to come to court to testify,petitioner Emma Lee must establish this claim to the satisfaction of the trialcourt. About five years have passed from the time the Lee-Keh children soughtthe issuance of a subpoena for Tiu to appear before the trial court. The RTCwould have to update itself and determine if Tius current physical conditionmakes her fit to undergo the ordeal of coming to court and being questioned. Ifshe is fit, she must obey the subpoena issued to her.

Tiu has no need to worry that the oral examination might subject her tobadgering by adverse counsel. The trial courts duty is to protect every witness

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against oppressive behavior of an examiner and this is especially true wherethe witness is of advanced age.8

2. Tiu claimed before the trial court the right not to testify against herstepdaughter, petitioner Emma Lee, invoking Section 25, Rule 130 of the Rulesof Evidence, which reads:

SECTION 25. Parental and filial privilege.- No person may be compelled to testifyagainst his parents, other direct ascendants, children or other direct descendants.

The above is an adaptation from a similar provision in Article 315 of the Civil Codethat applies only in criminal cases. But those who revised the Rules of Civil Procedurechose to extend the prohibition to all kinds of actions, whether civil, criminal, oradministrative, filed against parents and other direct ascendants or descendants.

But here Tiu, who invokes the filial privilege, claims that she is the stepmother ofpetitioner Emma Lee. The privilege cannot apply to them because the rule appliesonly to "direct" ascendants and descendants, a family tie connected by a common

ancestry.1avvphi1 A stepdaughter has no common ancestry by her stepmother.Article 965 thus provides:

Art. 965. The direct line is either descending or ascending. The former unites thehead of the family with those who descend from him. The latter binds a person withthose from whom he descends.

Consequently, Tiu can be compelled to testify against petitioner Emma Lee.

WHEREFORE, the Court DENIES the petition and AFFIRMS the decision and resolutionof the Court of Appeals in CA-G.R. SP 92555.

SO ORDERED.

---

Spouses MANUEL and FLORENTINA DEL ROSARIO, Petitioners,vs.GERRY ROXAS FOUNDATION, Inc., Respondent.

D E C I S I O N

DEL CASTILLO, J.:

The allegations in the complaint and the reliefs prayed for are the determinants ofthe nature of the action1 and of which court has jurisdiction over the action.2

This Petition for Review on Certiorari assails the April 26, 2005 Decision3 of the Courtof Appeals (CA) in CA-G.R. SP No. 87784 which dismissed the Petition for Reviewbefore it. Also assailed is the CA Resolution4 dated November 15, 2005 denying theMotion for Reconsideration thereto.

Factual Antecedents

The controversy between petitioners Manuel and Florentina Del Rosario

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and respondent Gerry Roxas Foundation Inc. emanated from a Complaint for UnlawfulDetainer filed by the former against the latter, the surrounding circumstances relativethereto as summarized by the CA in its assailed Decision are as follows:

The petitioner Manuel del Rosario appears to be the registered owner of Lot 3-A ofPsd-301974 located in Roxas City which is described in and covered by TransferCertificate of Title No. T-18397 of the Registry of Deeds for the City of Roxas.

Sometime in 1991, the respondent, as a legitimate foundation, took possession andoccupancy of said land by virtue of a memorandum of agreement entered into by andbetween it and the City of Roxas. Its possession and occupancy of said land is in thecharacter of being lessee thereof.

In February and March 2003, the petitioners served notices upon the respondent tovacate the premises of said land. The respondent did not heed such notices becauseit still has the legal right to continue its possession and occupancy of said land.5

On July 7, 2003, petitioners filed a Complaint6 for Unlawful Detainer against the

respondent before the Municipal Trial Court in Cities (MTCC) of Roxas City, docketedas Civil Case No. V-2391. Said complaint contains, among others, the followingsignificant allegations:

3. Plaintiffs are the true, absolute and registered owner[s] of a parcel of land,situated at Dayao, Roxas City and covered by and described in TransferCertificate of Title No. 18397 issued to the plaintiffs by the Register of Deedsfor Roxas City as evidenced by a xerox copy thereof which is hereto attachedas Annex "A".

4. Sometime in 1991, without the consent and authority of the plaintiffs,defendant took full control and possession of the subject property, developedthe same and use[d] it for commercial purposes.

x x x x

7. Plaintiffs have allowed the defendant for several years, to make use of theland without any contractual or legal basis. Hence, defendants possession ofthe subject property is only by tolerance.

8. But [plaintiffs] patience has come to its limits. Hence, sometime in the lastquarter of 2002, plaintiffs made several demands upon said defendant to settleand/or pay rentals for the use of the property.

x x x x

10. Notwithstanding receipt of the demand letters, defendant failed andrefused, as it continues to fail and refuse to pay reasonable monthly rentals forthe use and occupancy of the land, and to vacate the subject premises despitethe lapse of the fifteen-day period specified in the said demand letters.Consequently, defendant is unlawfully withholding possession of the subjectproperty from the plaintiffs, who are the owners thereof.7

Upon service of summons, respondent filed its Answer8 dated July 31, 2003

where it averred that:

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3. The defendant ADMITS the allegations set forth in paragraph 4 of theComplaint to the effect that the defendant "took full control and possession ofthe subject property, developed the same" and has been using the premises inaccordance with its agreements with the City of Roxas and the purposes of thedefendant corporation without any objection or opposition of any kind on thepart of the plaintiffs for over twenty-two long years; the defendant specificallyDENIES the allegations contained in the last part of this paragraph 4 of the

Complaint that the defendant has used the property leased for commercialpurposes, the truth of the matter being that the defendant has used and [is]still using the property only for civic non-profit endeavors hewing closely topurposes of the defendant Gerry Roxas Foundation Inc., inter alia, devoted togeneral welfare, protection, and upliftment of the people of Roxas City, Capiz,and in Panay Island, and elsewhere in the Philippines; that the Foundation hasspent out of its own funds for the compliance of its avowed aims and purposes,up to the present, more than P25M, and that all the improvements, including abeautiful auditorium built in the leased premises of the Foundation "shallaccrue to the CITY (of Roxas), free from any compensation whatsoever, uponthe expiration of this Lease" (Memorandum of Agreement, Annex "2" hereof),eighteen (18) years hence;

x x x x

5. The defendant specifically DENIES the allegations set forth in paragraph 7 oft

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