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Petitioner Jose Abaca was tried before the Regional Trial Court of Calapan, Oriental Mindoro, for the crime of illegal recruitment under Article 38 and 39 of Presidential Decree No. 442, based on an Information which reads:

"That in the month of November 1988, and for a period prior and/or subsequent thereto, in the Municipality of Calapan, Province of Oriental Mindoro, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused thru false manifestation and fraudulent representation made to ROSELIA JIZ JANEO, ZENAIDA J. SUBANG, RENITA J. JANEO and MELROSE S. PALOMO to the effect that he has the authority to recruit workers for employment in Taipei, Taiwan, and can facilitate the processing of their necessary papers in connection therewith if given the necessary amount of money to cover the costs of such recruitment and by means of other similar deceit when in truth and in fact he is not authorized nor licensed to recruit, did then and there willfully and unlawfully, and feloniously collect from the aforestated applicants the aggregate amount of FOURTEEN THOUSAND PESOS (P 14,000.00), Philippine Currency, the said accused assuring and representing that the same would be used in defraying the necessary expenses of the complainants' application for employment abroad and having been convinced by said misrepresentation the complainants gave the said amount to the herein accused, but the latter far from complying with his obligations, misappropriated and converted to his own personal use and benefit the aforecited amount, to the damage and prejudice of the said ROSELIA JIZ JANEO, ZENAIDA J. SUBANG, RENITA J.JANEO and MELROSE S. PALOMO.

Contrary to Articles 38 and 39 of Presidential Decree No. 442, as amended otherwise known as the Labor Code of the Philippines."^[1]

Arraigned on February 6, 1990, petitioner entered a plea of not guilty. Thereafter, trial ensued.

The prosecution's evidence, as summarized by the trial court, reads as follows:

"The gist of the testimonies of the four complainants revolves on how the accused (petitioner herein) recruited them to work abroad and made them believe that the accused could work out their papers in consideration of a certain sum of money. Specifically, the four complainants similarly testified that the accused was introduced to them by his brothers, Perferio and Guding Abaca, whom they already knew for a long time. Sometime in the month of November 1988, the accused, accompanied by his brothers, misrepresented himself to be a licensed recruiter and convinced the four complainants that for a consideration they could work abroad at Taipei either as a domestic helper or factory worker with a salary ranging from $300 to $500 a month. The accused asked the sum of P14,000.00 each, but the complainants requested if they could pay P6,000.00 first and before departure they will complete the amount as demanded. Thus, the complainants paid partial amount at the office of the accused at Five Ace Philippines located in Manila and all of them gave their own down payment. Each complainant paid the accused P1,500.00 allegedly to be used for the processing of the passport and the following amounts for processing x x x

'All the complainants were able to receive the passport from the accused.

'From the foregoing, the complainants were able to pay the accused the aggregate amount of P14,000.00, excluding the amount of P1,500.00 each for the passport.

'It was agreed between the complainant and the accused that the balance of their obligation would be given on or before they leave for abroad. But since their payment, the accused promised them to leave, first, on or before December, 1988 and then anytime in January of 1989, and then later. When the complainants sensed that they would not leave anymore, they informed the brothers of the accused whom they are familiar with, complaining about the failure of the accused to send them abroad when they have already paid the advance payment. The two brothers could not do otherwise but appeased them and promised to contact their brother, the accused herein. Finally, the complainants were able to confront the accused and demanded the return of their money, but the accused merely promised to do so, until such time that they already filed their complaint with the NBI."

On the other hand, petitioner’s version of the case is likewise capsulized by the trial court in this wise, viz:

"In trying to absolve himself from criminal liability, the accused shifted the blame to a certain Mr. Reynaldo Tan to whom he alleges to have remitted the sums of money he received from the complainants. To corroborate his version of the incident, the accused presented one Alberto Tolentino, an employee of the Department of Public Works and Highways who also was recruited by Mr. Abaca and who was also referred to Mr. Reynaldo Tan.

xxx xxx xxx

When asked if he recruited complainants as they testified in Court, the accused denied the truth of such statement. The accused stated that he did not recruit them and the truth was he happened to be at the establishment of complainants in Calapan and they were able to talk with the Janeo sisters who told them of their problems wherein they were notified to vacate the establishment, and thus asked the accused to assist them in going abroad. The accused told them that they were recruiting workers in the Middle East but he is discouraging female to work there because of the horrible experiences others have undergone. The accused also told them that he was referring them to somebody whom he knows are sending people to Taipei in the person of Mr. Reynaldo Tan. The complainants agreed, after which the accused left for Manila where he was working. Then, one morning, the two girls in the name of Melrose Paloma and Zenaida Subang called the accused by phone and told him that they are interested in joining the Janeo sister to go to Taipei and they said that they came across the calling card of the accused marked as Exhibit "G". He admitted that the Five Ace Philippines is only engaged in trading and not as recruitment agency. He informed the Court that he was connected with the recruitment agency called WORK Incorporated-a licensed company."

After trial, judgment was rendered finding petitioner guilty of the crime charged, the dispositive portion of which reads:

"WHEREFORE, finding the accused guilty beyond reasonable doubt of the crime of illegal recruitment under Art. 39 ( c ) of P.D. 442, he is hereby sentenced to suffer imprisonment of four (4 ) years straight and to indemnify the complainants the aggregate amount of P14, 000.00 by way of civil liability, with the legal rate of interest from 1988 up to the time of payment.

SO ORDERED."

On appeal, the respondent Court of Appeals affirmed with modification the decision of the trial court. It found petitioner guilty of illegal recruitment on a large-scale and sentenced him to life imprisonment and a fine of P100,000.00.^[2]

Petitioner moved for reconsideration but the same was denied on November 7, 1996.^[3]

Petitioner now comes to us alleging that the respondent court committed grave and reversible errors of law and/or acted with grave abuse of discretion-

1. In not considering the certification (Exh. 1) issued by the POEA stating, among others, that WORK, Inc. was a duly licensed private recruitment agency prior to August 20,1989, and that petitioner was then a manager and PDOS (Pre-Departure Orientation Seminar) Trainor in said recruitment agency, and that, therefore, by virtue of his position as manager and PDOS trainor of WORK, Inc. , he had the authority to undertake recruitment activities.


2. In not finding that petitioner, being a holder of authority, may not be validly charged of illegal recruitment as defined by law in force at the time of the alleged commission of the offense charged, much less, convicted and sentenced to life imprisonment.


3. In declaring petitioner guilty of illegal recruitment in large scale and sentencing him to a penalty of life imprisonment and to pay a fine of P100,000.00


4. In finding that herein petitioner undertook recruitment activities, there being a grave misapprehension of the facts.

The petition must be dismissed.

The crime of illegal recruitment is committed when two elements concur, namely: (1) the offender has no valid license or authority required by law to enable one to lawfully engage in recruitment and placement of workers; and (2) he undertakes either any activity within the meaning of "recruitment and placement" defined under Article 13(b), or any prohibited practices enumerated under Article 34 of the Labor Code. ^[4]

Under the first element, a nonlicensee or nonholder of authority is any person, corporation or entity which has not been issued a valid license or authority to engage in recruitment and placement by the Secretary of Labor, or whose license or authority has been suspended, revoked or canceled by the Philippine Overseas Employment Administration (POEA) or the Secretary.^[5] Agents or representatives appointed by a licensee or a holder of authority but whose appointments are not previously authorized by POEA are within the meaning of the term nonlicensee or nonholder of authority.^[6]

The record shows that petitioner is not a licensed recruiter as evidenced by the Certification^[7] issued by Mr. Hermogenes C. Mateo, Chief of the Licensing Branch, POEA. Testifying on the aforesaid certification, Mr. Mateo said:

"Q Now, how about a person by the name of Jose Abaca alias "Joe" or Jose "Joe" Abaca listed in that particular list as one among those authorized by the Philippine Overseas Employment Administration to recruit workers for employment abroad?

A He is not included among those authorized to recruit in their personal capacity like single proprietorship, sir."^[8]

Petitioner's theory that he has the authority to recruit by reason of his position as manager and Pre-Departure Orientation Seminar Trainor (PDOS) of the WORKERS FOR OVERSEAS RECRUITMENT KEY CENTER, INC. (WORK, Inc.), a licensed private recruitment agency is devoid of merit. The Certification^[9] issued by Mr. Mateo, which was relied upon by petitioner is nothing but an affirmation that he is an officer of WORK, Inc. It does not, in any way, prove that petitioner has a license or authority to undertake recruitment activities. Moreover, his employment with a licensed placement agency does not ipso facto authorize him to recruit workers. This was clarified by Mr. Mateo when he testified that:

"Q Now, will you please tell this Court if the employees of WORK, Incorporated in particular or any agency for that matter which are license to recruit workers for overseas employment authorized or licensed to recruit workers for employment abroad?

xxx xxx xxx

A That will depend on the designation of the person concerned, sir.

FISCAL SENOREN:

Q What do you mean by it depends upon the designation of a person?

A Well, if the designation states for example that he is only authorized to market for overseas principal, that is the only function that he could do so in representing the company. For example, if he is trainor, it so states that he is authorized to serve as trainor in the conduct of pre-departure orientation seminar, sir.

xxx xxx xxx

Q When a person is trainor or only a personnel manager, do you mean to say that he cannot recruit for his agency?

A As far as the POEA is concerned, we only recognize the appointment submitted to our office in his capacity as that, Your Honor." ^[10]

Even assuming that WORK, Inc. had authorized petitioner, by reason of his position in the company, to recruit workers, still, such authority was not previously approved by the POEA.^[11]

Again, Mr. Mateo explained that a licensee or holder of authority may authorize their employees to recruit for the agency. However, said authority must be submitted to and approved by the POEA.^[12] The provision of Article 29 of the Labor Code is very clear on this:

"Art. 29. Non-transferability of license or authority.- No license or authority shall be used directly or indirectly by any person other than the one in whose favor it was issued or at any place other than stated in the license or authority, nor may such license or authority be transferred, conveyed or assigned to any other person or entity. Any transfer of business address, appointment or designation of any agent or representative including the establishment of additional officers anywhere shall be subject to the prior approval of the Department of Labor." (Underlining Ours)

Moreover, there is nothing from the record which would show even by implication that petitioner was acting for and in behalf of WORK, Inc. when he was dealing with the complainants. Petitioner gave his calling card ^[13] and met with private complainants at his office at Five Ace, Phil., Malate, City of Manila.

Thus, complainant Roselia Janeo testified:

"Q Where did you give the amount of P 1,500.00 for your passport?

A I give (sic) the amount of P1,500.00 to Jose Abaca in Manila because he instructed us to follow him in Manila.

Q Where in Manila did you give that P1,500.00?

A At Five Ace Philippines and this Five Ace Philippines is the agency which according to Jose Abaca he is handling"^[14]

Complainant Reneta Janeo also testified:

"Q Miss witness, where did you give the amount of P6,000.00 to Mr. Jose Abaca?

A At Five Ace Philippines, sir.

Q What is this Five Ace Philippines?

A It is an office, sir.

Q And where is this Five Ace Philippines located?

A At Guerero corner J. Nakpil St., Malate, sir. "^[15]

Petitioner's testimony that he referred the private complainants to a certain Reynaldo Tan because WORK, Inc. is deploying workers to the Middle East and other countries with bilateral agreements with the Philippines undisputably show that he was not representing WORK, Inc. when he dealt with private complainants. Petitioner recounted:

"Q If that is so, Mr. Witness, why do you have to refer the complainants to other company represented by Mr. Reynaldo Tan, if according to you, the WORK Incorporated was duly licensed to engage in recruitment business?

A Well, as I have said that I did not want them to be deployed to the Middle East wherein we have authority to deploy to the Middle East. Now, the fact that we do not have a bilateral agreement with Taipei but the Taipei government is accepting employees from the Philippines on a tourist visa and a tourist passport and visitors visa and as matter of fact, we have no less than two hundred thousand Filipino workers in Taipei right now under a visitor's visa on a tourist passport.

Q So your company is not engaged in sending workers for Taipei, Taiwan" I am referring to WORK Incorporated?

A Yes, sir.

Q Because, according to you, our government has no diplomatic relation.

A Bilateral agreement, sir.

Q Bilateral agreement with said country?

A Because the papers to be processed by the POEA, that cannot be processed because our government has no bilateral agreement with the said country.

Q And you want to impress upon this Court that all workers going to Taipei, Taiwan work there unofficially without the sanction of our government but on shall we say, unofficial capacity, am I right?

A Yes, unofficially in our country because they are working there on a tourist visa. And that is not the problem of our country. This is the problem of the once accepting these people. Even a tourist visa, a tourist passport.

Q So that is the reason , according to you, why you do not utilize your company, the WORK Incorporated in connection with this particular application of the complainants in going to Taipei, Taiwan?

A Yes, sir."^[16] (Underlining Ours)

It is clear therefore that petitioner never acted for and in behalf of WORK, Inc. when he recruited the private complainants.

Going now to the second element of the crime charged, that is, the offender undertakes either any activity within the meaning of recruitment and placement, Article 13(b) of the Labor Code defines "recruitment and placement," as follows:

"Recruitment and placement refers to any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not; Provided, that any person or entity which in any manner offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement."(Underscoring Supplied)

Petitioner's acts of (1) representing to the private complainants that he can help them work in Taipei with a monthly salary of $300 to $500; (2) requiring them to submit their ID pictures, birth certificates and bio-data for their employment abroad; (3) demanding from them P12,000.00 as processing fee; and (4) receiving from them certain amounts for the processing of their passports and other papers, are all recruitment activities within the contemplation of the law.

The finding of the trial court in this regard is worth noting:

"It has already been shown by the prosecution that accused was not licensed or authorized by the POEA to recruit workers for abroad. And yet, despite such fact, accused, thru false manifestation and fraudulent representation, made the complainants believe that he could help them work abroad as household helper or factory worker at Taipei at a salary ranging from $300 to $500, alleging that he has a friend who could help them work abroad. Relying on this representation, complainants were constrained to pay the aggregate amount of P14,000.00 as demanded by the accused besides the P1,500.00 each for passport, and the accused issued a private receipt (not official or printed receipt) evidencing such payment. With these receipts marked as Exhibits "A" to "E", "H" and "I" and the issuance of the passport, ID pictures, birth certificate, bio-data and other personal papers, the complainants were led to believe that accused could really help them work abroad. Thus, after payment, accused assured complainants that they might be able to leave in December of 1988. Come December 1988 and yet complainants were not able to leave and was again promised by accused that they could leave the following month of January, 1989. Again, complainants failed to leave, thus, they demanded from the accused to return the money, otherwise, they would file a case against the accused in court."^[17]

Petitioner further asserted that he did not recruit private complainants but only tried to help them by referring them to one Reynaldo Tan who was allegedly licensed to recruit workers to Taiwan. This posture, unfortunately will not exculpate him. Petitioner's act of referring private complainants to Tan is, under the law, also considered a recruitment activity.

Finally, petitioner faults respondent court in finding him guilty of illegal recruitment in large scale which has a higher penalty. He argues that he cannot be convicted of illegal recruitment in large scale because the information charged him only with simple illegal recruitment. Having been sentenced by the respondent court to a graver offense, petitioner claims that he was deprived of his constitutional right to be informed of the true nature and cause of the accusation against him.

We do not agree.

The real nature of the criminal charge is determined not from the technical name given by the fiscal appearing in the title of the information but by the actual recital of facts appearing in the complaint or information.^[18]

Thus, where the allegations in the information clearly sets forth the essential elements of the crime charged, the constitutional right of the accused to be informed of the nature and cause of his accusations is not violated.^[19]

The information against petitioner has clearly recited all the elements of the crime of illegal recruitment at large scale, namely:

1. the offender is a non-licensee or non-holder of authority to engage in recruitment and placement activity,


2. the offender undertakes recruitment and placement activity defined under Article 13 (b), or any prohibited practices enumerated under Article 34, and


3. illegal recruitment is committed against three or more persons individually or as a group.^[20]

All these elements were duly proven by the prosecution. Petitioner, as discussed earlier, is not licensed or authorized to recruit overseas workers; he undertook recruitment activities defined under Article 34 under the Labor Code and he recruited the four (4) complainant-workers, thus making the crime illegal recruitment in large scale. The imposable penalty is life imprisonment and a fine of One Hundred Thousand Pesos (P100,000.00) pursuant to Article 38 (b)^[21] and Article 39 (a)^[22] of the Labor Code.

WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED.

SO ORDERED.

Regalado (Chairman), Puno, and Mendoza, JJ., concur.

Melo, J., on leave.

---

^[1] Information, pp. 1-2, Record.

^[2] Court of Appeals Decision dated April 22, 1996 in CA-G.R. CR No. 12005

^[3] See p. 46, Rollo.

^[4] People of the Philippines vs. Naparan, 225 SCRA 715, Aug. 30, 1993.

^[5] Sec. 1(d) of the Rules Implementing P.D. 1920 promulgated on July 12, 1984.

^[6] Sec. I, Rule V, Book II of the POEA Rules and Regulation on Overseas Employment promulgated on May 21, 1985 .

^[7] Exh. "L", p. 13, Record;

"This is to certify that per available records of this Office, JOSE P. ABACA, alias 'JOE' of FIVE ACE PHILIPPINES, INC., is neither licensed nor authorized by this Department to recruit workers for overseas employment."

^[8] TSN, July 11, 1990, p. 13.

^[9] Exhibit. "1", p. 105, Record

"This is to certify that per available records of this office, WORKERS FOR OVERSEAS RECRUITMENT KEY CENTER, INC. (WORK, INC.), with office address at Rms. 6-8 Don Santiago Bldg., 1344 Taft Avenue, Manila, represented by Mr. Emilio M. Capati, Chairman/President, is a licensed private employment agency whose license is valid until February 11,1990 but was suspended on August 20,1989 for failure to pay garnished cash bond.

“Our records show that Mr. Jose P. Abaca is connected with said agency as Manager and PDOS Trainor since December 31, 1989 list of personnel and up to present. "

^[10] TSN, July 11, 1990, pp. 32-35

^[11] Sec. 1, 2nd par, Rule V, Bk. II, POEA rules and Regulations on Overseas Employment provides that: Recruitment and Placement activities of agents or representatives appointed by a licensee or authority holder whose appointments were not previously authorized by the Administration (POEA) shall likewise constitute illegal recruitment.

^[12] Ibid., p. 37.

^[13] Exhibit "G", p. 89, Records.

^[14] TSN, April 19, 1990, p. 4..

^[15] TSN, May 21, 1990, p. 5.

^[16] TSN, October 3, 1990, pp. 55-57.

^[17] Decision, Regional Trial Court, p. 12.

^[18] People vs. Labado, 98 SCRA 730, 732, 733, July 24, 1980; Reyes vs. Judge Camilon, 192 SCRA 445, December 20, 1990; People vs. Aspili, 191 SCRA 530, November 21, 1990.

^[19] People vs. Angelina Mendoza, 175 SCRA 743, July 31, 1989.

^[20] People vs. Bautista, 241 SCRA 216, February 9, 1995; People vs. Coronacion, 237 SCRA 227, September 29, 1994; cited in People vs Diaz, 259 SCRA 441, July 26, 1996.

^[21] Art. 38 (b) Illegal recruitment when committed by a syndicate or in large scale shall e considered an offense involving economic sabotage and shall be penalized in accordance with Article 39 hereof.

^[22] Art. 39. Penalties- (a) the penalty of life imprisonment and a fine of One Hundred Thousand Pesos (P100,000.00) shall be imposed if illegal recruitment constitute economic sabotage as defined herein.