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[ G.R. No. 237703, October 03, 2018 ]




Before this Court is a petition for certiorari[1] seeking to annul the Resolutions dated November 21, 2017,[2] December 22, 2017,[3] and January 17, 2018[4] of the Sandiganbayan (SB) in SB-17-CRM-2081 on the ground of grave abuse of discretion. Pending the resolution of this case, petitioner Joseph C. Sy (Sy) filed a Motion for an Allow Departure Order[5] dated April 5, 2018, praying that he be permitted to travel abroad for the period from April 23, 2018 to May 23, 2018.

The Facts

On October 13, 2017, an Information[6] dated August 17, 2017 was filed before the SB charging Sy, among others, with violation of Section 3 (e) of Republic Act No. 3019. Immediately upon learning of this development, Sy posted a cash bond amounting to P30,000.00 for his provisional liberty, which was approved by the SB on November 7, 2017.[7] On even date, the SB issued a Hold Departure Order[8] against Sy and his co­ accused to prevent them from leaving the country.

On November 16, 2017, Sy filed a Motion for an Allow Departure Order[9] for the period from November 28 to December 7, 2017 (Motion A) to embark on business trips in Hong Kong, Macau, and Xiamen, China. He stated that such travel was necessary for him to personally attend to important business matters that needed his direct and special attention. To secure the SB's permission, he manifested his willingness to post a bond and to report to the SB within five (5) days upon his return from abroad. He likewise attached a copy of his plane ticket,[10] indicating the time and place of his departure from and return to Manila, Philippines, as well as the cities he will visit.

The prosecution opposed[11] the motion on these grounds: (a) it does not contain any itinerary of travel; (b) it does not indicate the place where Sy would stay; (c) there is no urgency for the desired travel; (d) the probability of flight is great considering that his family name and middle name are Chinese; and (e) he must be amenable at all times to the SB's jurisdiction.[12]

In reply, Sy expressed his willingness to post a bond as may be directed, stating that his strong family and commercial ties will compel him to return to the Philippines.[13] In particular, he cited his functions as the chairperson of a publicly-listed Philippine corporation, Global Ferronickel Holdings, Inc. (FNI),[14] the committee Chairman for Mining of the Philippine Chamber of Commerce and Industry,[15] and the Vice-Chairman of the Philippine International Chamber of Commerce.[16] He also submitted a detailed itinerary and hotel bookings for his trip mentioning the places where he would be staying.[17]

In a Resolution[18] dated November 21, 2017, the SB denied Motion A, explaining that: (i) Sy failed to show the indispensability of his business trip; (ii) the alleged need for the intended travel cannot outweigh the SB's inherent power to preserve the effectiveness of its jurisdiction over his person; and (iii) business interests and ties do not, by themselves, remove the probability of flight.[19]

On December 5, 2017, Sy filed another motion to travel[20] this time to Japan and Hong Kong for the period from December 17, 2017 to January 5, 2018 (Motion B) to accompany his wife and minor son for a family vacation.[21] After hearing, the SB denied the motion in a Resolution[22] dated December 22, 2017, stating that a similar motion was previously denied and there were no new matters to substantially address.[23]

On January 8, 2018, Sy filed the third motion to travel,[24] this time to Hong Kong and China for the period from January 17 to 31, 2018 (Motion C) to attend business meetings. During the hearing, the SB allegedly informed Sy that it conducted a background search on him and doubted his intention to return to the country based on an issue regarding his citizenship.[25] After the hearing, the SB denied Motion C in a Resolution[26] dated January 17, 2018, stating that it has continuously denied Sy's pleas to travel abroad and reiterating the same grounds for which it denied Motion A.[27] The SB added that it remains unconvinced with Sy's assertions relative to his citizenship.[28]

On March 16, 2018, Sy filed the instant certiorari petition assailing the SB's three (3) Resolutions, which denied his motions to allow his foreign travels. He argued that: (a) the purposes of his travels were indispensable to his occupation as chairman of a publicly-listed Philippine corporation, as well as his paternal duty to his family; (b) his strong and established business interests and ties in the Philippines negate the probability of flight; (c) his consent to a conditional arraignment effectively preserved the SB's jurisdiction over his person for the duration of the case; (d) his citizenship is confirmed by public records; and (e) the SB acted with undue interest, partiality, and bias when it motu proprio gathered evidence extraneous to the submission of the parties and used its own findings as basis to question his intent to return to the country.[29] Sy also invoked the Court's ruling in Cojuangco v. Sandiganbayan,[30] citing several instances wherein the SB allowed the accused therein to travel for business purposes. Sy also submitted his travel history[31] from 2014 to 2017 to show that the motions were not contrived for the purpose of absconding.[32]

In its Comment,[33] the Office of the Special Prosecutor (OSP) insisted that the SB acted within the scope of its jurisdiction when it denied Sy's motions for travel abroad based on reasonable and valid grounds. It also contended that, as disclosed during the hearing on Motion C, a complaint before the National Bureau of Investigation attacking Sy's citizenship is still pending resolution. The OSP further argued that Sy failed to convince the SB that he is not a flight risk, especially since he acknowledged his strong business connections in China and his Chinese lineage.[34]

On April 5, 2018, pending the resolution of the petition, Sy filed before the Court a Motion for an Allow Departure Order[35] for the period from April 23, 2018 to May 23, 2018 to attend business meetings with Baiyin International Investment Ltd. in Hong Kong and several places in China.[36] He justified the filing of the motion with this Court by vigorously contending that the SB is "bent on the absolute deprivation of [his] right to travel on the same basis set forth in the Assailed Resolutions."[37] He reiterated that his business trips are indispensable to the companies he represents because foreign suppliers and buyers prefer to deal exclusively with him due to his experience, reputation, and acumen in business and the years he has spent developing and forging strong ties and relationships. He also stressed that his business interests and ties in the Philippines are well-established to remove the probability of his flight and to ensure his presence when required by the SB.[38]

In its Comment[39] to the motion, the OSP contended that the motion is already moot because the period of Sy's intended travel had already lapsed.[40] At any rate, the OSP vehemently opposed the motion on the grounds that: (a) Sy is a flight risk, which is further highlighted by the uncertainty of his assertion on his citizenship; and (b) there is no urgent necessity for the business trip; and (c) as held by the SB, the alleged need for the intended travel cannot outweigh the SB's inherent power to preserve and maintain the effectiveness of its jurisdiction over Sy's person by making himself available whenever it requires.[41]

The Issues Before the Court

The issues before the Court are whether or not: (a) the petition for certiorari assailing the SB's denial of Sy's motions for the issuance of allow departure orders should be granted; and (b) the Motion for an Allow Departure Order dated April 5, 2018 filed before the Court should be granted.

The Court's Ruling


The petition for certiorari is partly granted.

Procedurally, Section 4, Rule 65 of the Rules of Court states that a petition for certiorari must be filed "not later than sixty (60) days from notice" of the assailed resolution. In this case, Sy received the first assailed Resolution on November 29, 2017[42] and the second assailed Resolution on January 9, 2018[43] but filed the instant petition only on March 16, 2018 or beyond the sixty (60)-day reglementary period to assail the aforementioned Resolutions. Thus, as the petition was filed out of time in these respects, petitioner cannot validly assail these two (2) SB Resolutions.

On the other hand, records show that the petition was timely filed within sixty (60) days from Sy's receipt[44] of the third SB Resolution dated January 17, 2018 which denied Motion C. However, it has been argued that the petition is already moot[45] because the travel period for which Sy requested an allow departure order (i.e., January 17 to 31, 2018) had already lapsed. While the assertion is indeed true, the Court nonetheless deems it proper to take cognizance of this case because it falls under certain exceptions [46] to the mootness doctrine. In particular, the issue of whether Sy should be issued an allow departure order is clearly capable of repetition given the frequency of his requests for travel and the likelihood of him making similar requests in the future in view of his personal and professional engagements. Moreover, the Court's resolution in this case would also serve to guide the bar and especially the bench in deciding similar cases wherein they are called upon to rule on whether to issue, upon motion, an allow departure order without unduly restricting an accused's constitutional right to travel. That being said, the Court proceeds to resolve the substantive issues raised in Sy's certiorari petition.

The constitutional right to travel is part of liberty, which a citizen cannot be deprived of without due process of law.[47] However, this right is not absolute, as it is subject to constitutional, statutory, and inherent limitations.[48] One of the inherent limitations is the power of courts to prohibit persons charged with a crime from leaving the country.[49] In one case, the Court held that the court's power to prohibit a person admitted to bail from leaving the Philippines is a necessary consequence of the nature and function of a bail bond.[50] As a result, a person with a pending criminal case and provisionally released on bail does not have an unrestricted right to travel.[51]

In People v. Uy Tuising,[52] the Court explained that an accused is prohibited from leaving the Philippine jurisdiction "because, otherwise, [the court's] orders and processes would be nugatory; and inasmuch as the jurisdiction of the court from which they issued does not extend beyond that of the Philippines, they would have no binding force outside of said jurisdiction."[53] This situation became extant in Silverio v. Court of Appeals[54] wherein the accused, who was released on bail, went abroad several times without court approval resulting in postponements of the arraignment and scheduled hearings. In ruling that the trial court correctly directed the Commission on Immigration to prevent the accused from leaving the country again, the Court pronounced thus:

Petitioner x x x has posted bail but has violated the conditions thereof by failing to appear before the [c]ourt when required. Warrants for his arrest have been issued. Those orders and processes would be rendered nugatory if an accused were to be allowed to leave or to remain, at his pleasure, outside the territorial confines of the country. Holding an accused in a criminal case within the reach of the [c]ourts by preventing his departure from the Philippines must be considered as a valid restriction on his right to travel so that he may be dealt with in accordance with law. The offended party in any criminal proceeding is the People of the Philippines. It is to their best interest that criminal prosecution should run their course and proceed to finality without undue delay, with an accused holding himself amenable at all times to [c]ourt [o]rders and processes.[55] (Emphasis supplied)

Verily, the purpose of the restriction on an accused's right to travel is to ensure that courts can effectively exercise their jurisdiction over such person.[56] As such, courts are authorized to issue hold departure orders against the accused in criminal cases, and accordingly, the court's permission is required before an accused can travel abroad.[57]

In this case, the SB issued a hold departure order restricting Sy's right to travel abroad. Respecting such order, he filed motions to be allowed to travel abroad for business and personal errands, but all of his motions were denied by the SB. The question now before the Court is whether the SB gravely abused its discretion amounting to lack or excess of jurisdiction when it denied Sy's request to be allowed to travel abroad.

Grave abuse of discretion refers to such capricious and whimsical exercise of judgment equivalent to lack of jurisdiction, as when the act amounts to an evasion of a positive duty or to a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law.[58]

Indeed, whether the accused should be permitted to leave the jurisdiction is a matter addressed to the court's sound discretion.[59] Nevertheless, such discretion must not be arbitrarily exercised. In deciding the matter, the court must delicately balance, on the one hand, the right of the accused to the presumption of his innocence and the exercise of his fundamental rights, and on the other hand, the interest of the State to ensure that the accused will be ready to serve or suffer the penalty should he be eventually found liable for the crime charged.[60]

Based on this premise, the Court finds that the SB committed grave abuse of discretion when it denied Sy's third request to travel abroad on the grounds that he failed to "show the indispensability of the business travel," that his "business interests and ties do not, by themselves, remove the probability of flight," and that the SB remains unconvinced with Sy's assertions relative to his citizenship.[61]

While an accused requesting for permission to travel abroad has the burden to show the need for his travel,[62] such permission must not be unduly withheld if it is sufficiently shown that allowing his travel would not deprive the court of its exercise of jurisdiction over his person, as in this case. In making such assessment, courts should act judiciously, and thus, base their findings on concrete variables, such as the purpose of the travel, the need for similar travels before the criminal case was instituted, the ties of the accused in the Philippines, as well as in the destination country, the availability of extradition, the accused's reputation, his travel itinerary including confirmed tickets to return to the Philippines, the possibility of reporting to the Philippine embassy in the foreign country, and other similar factors. While said requests should be resolved on a case-to case basis, it may not be amiss to state that courts should always be mindful that an accused is afforded the constitutional presumption of innocence,[63] and hence, entitled to the entire gamut of his rights, subject only to reasonable restrictions that are based on concrete facts, and not mere speculation.

In this case, a perusal of Sy's travel records[64] for the period 2014 to 2017 from the Bureau of Immigration reveals that he frequently travelled to and from the Philippines even before the filing of the criminal case. This supports his contention that his requested travels were not contrived for him to abscond from criminal prosecution. Moreover, contrary to the prosecution's stance, Sy's Chinese-sounding surname and middle name do not serve to increase the probability of his flight but, at most, merely points to his lineage. Besides, restricting Sy's right to travel based on his surname would be tantamount to unduly faulting him for a status natural to his person (i.e., his surname), which he did not choose for himself and for which he was not responsible for.

Likewise, the Court finds that the SB unduly relied on the unresolved claims against Sy's citizenship before other governmental bodies[65] to justify the denial of his travel request, especially considering that his birth certificate clearly indicates his Filipino citizenship. Settled is the rule that public documents, such as birth certificates, are prima facie evidence of the facts contained therein such as on citizenship.[66] No evidence was even presented to counter Sy's status as a Filipino citizen or show that he is a citizen of his destination country that would enable him to have a prolonged stay therein. For these reasons, the SB should have given more weight to Sy's birth certificate stating that he is a Filipino citizen rather than the unresolved claims to the contrary, which were not even presented by the prosecution before the SB.

Furthermore, Sy's pivotal roles as Chairman of FNI, as Committee Chairman for Mining of the Philippine Chamber of Commerce and Industry, and Vice-Chairman of the Philippine International Chamber of Commerce render his foreign travels necessary for him to effectively execute his corporate duties. In Cojuangco v. Sandiganbayan,[67] the Court allowed petitioner therein to travel abroad, noting that the risk of flight is diminished by his recent reinstatement as Chairman and Chief Executive Officer of San Miguel Corporation, giving him more reason to travel to oversee the operations of the company abroad.[68] In this case, Sy has shown his critical function in the strategic cooperation between FNI and China's Baiyin Nonferrous Group Co., Ltd. to improve the nickel value chain in the Philippines[69] and has argued that the restriction on his business travels overseas economically threatens the companies he represent.[70]

All these considered, there appears to be no sufficient justification for the SB's refusal to grant Sy's motion to travel abroad. Accordingly, the instant certiorari petition should be partly granted insofar as it timely assails the third SB Resolution, which is heretofore declared null and void.


Meanwhile, Sy's Motion for an Allow Departure Order dated April 5, 2018 is denied as the same should have been filed before the SB, which has jurisdiction over the main case. It is fundamental that all ancillary incidents, such as this motion, should be resolved by the court handling the main case. It should be emphasized that the Court in this case only acts as a reviewing tribunal and only for the limited purpose of determining whether the SB gravely abused its discretion. Besides, as above-discussed, the impetus behind restricting the right to travel is for the court to maintain its jurisdiction over the person of the accused; undoubtedly, it is the SB who is necessarily interested in preserving its jurisdiction over the accused.[71] Aside from this, Sy's averred circumstances to permit him to travel pertain to questions of fact that should be determined in the first instance by the SB.[72]

As a final point, it goes without saying that if Sy subsequently requests for permission to travel, the SB should be guided by the considerations discussed in this Decision. Notably, should there remain doubts on whether he would abscond, the SB is not precluded from imposing travel restrictions to ensure his return, such as the deposit of a travel bond, submission of a detailed and confirmed flight and travel itinerary, specification of a limited area and duration of travel, appearance before a Philippine consul upon arrival in the destination country, designation of a personal agent with authority to act in his behalf, as well as personal appearance or written advice to the court upon his return to the Philippines,[73] or, ultimately, if the doubts are serious enough, the SB may opt not to allow him to travel based on the standards set herein. After all, while the right to travel is indeed a constitutional right, it nevertheless remains subject to reasonable restrictions that on the other end, further the State's compelling interest in criminal prosecution.

WHEREFORE, the Court resolves as follows:

The petition for certiorari is PARTLY GRANTED. Accordingly, the Resolution dated January 17, 2018 of the Sandiganbayan in SB-17-CRM-2081 is NULLIFIED and SET ASIDE.
The Motion for an Allow Departure Order dated April 5, 2018 is DENIED for being improperly filed before the Court and not to the Sandiganbayan as discussed in this Decision.


Carpio (Chairperson), A. Reyes, Jr., and J. Reyes, Jr.,[*] JJ., concur.
Caguioa, J., on leave.

[*] Designated Additional Member per Special Order No. 2587 dated August 28, 2018.

[1] Dated March 15, 2018. Rollo, pp. 3-37.

[2] See Minute Resolution dated November 21, 2017; id. at 43.

[3] See Minute Resolution dated December 22, 2017; id. at 44.

[4] Id. at 45-46. Penned by Associate Justice Bernelito R. Fernandez with Associate Justices Amparo M. Cabotaje-Tang and Zaldy V. Trespeses, concurring.

[5] Id. at 318-338.

[6] Id. at 216-221.

[7] Id. at 7. See also Order dated November 7, 2017; id. at 222.

[8] Id. at 47.

[9] Id. at 224-226.

[10] See Ticket Receipt issued on November 11, 2017; id. at 229.

[11] See Order dated November 20, 2017; id. at 231-232.

[12] Id. at 232.

[13] See id.

[14] Id. at 10. See also Manifestation dated November 22, 2017; id. at 233-234.

[15] See Certification dated December 1, 2017 issued .by Secretary General Crisanto S. Frianeza stating that Sy is a member of the Philippine Chamber of Commerce and Industry; id. at 81.

[16] Id. at 10.

[17] Id. at 9-10. See also id. at 233-234.

[18] Id. at 43.

[19] Id.

[20] See Entry of Appearance as Collaborating Counsel with Motion for Leave to Allow Travel Abroad dated December 5, 2017 (id. at 48-55) and Supplement to Motion for Leave to Allow Travel Abroad dated December 8, 2017 (id. at 84-86).

[21] Without any action from the SB and since the original proposed departure date had lapsed, Sy filed a motion to amend the date of departure from December 17, 2017 to December 23, 2017 (id. at 4). See also Very Urgent Manifestation and Motion to Amend dated December 21, 2017; id. at 114-116.

[22] Id. at 44.

[23] See id.

[24] See 3rd Motion for an Allow Departure Order dated January 5, 2018; id. at 120-130.

[25] Id. at 31-33. See also Transcript of Stenographic Notes dated January 11, 2018; id. at 256.

[26] Id. at 45-46.

[27] See id.

[28] Id. at 46. The SB stated thus: "Additionally, this Court, after its own queries made during the hearing on the Motion on January 11, 2018, continues to remain unconvinced with the assertions of [Sy] relative to his citizenship."

[29] See id. at 14-36.

[30] 360 Phil. 559 (1998).

[31] See Certification issued by Bureau of Immigration's Acting Chief of the Certification and Clearance Section Rodelio A. Siapian dated December 7, 2017; rollo, pp. 109-113.

[32] Id. at 27.

[33] Dated August 7, 2018. Id. at 383-395.

[34] See id. at 388-394.

[35] Id. at 318-337.

[36] See id. at 319-320.

[37] Id. at 319.

[38] See id. at 331-334.

[39] Dated June 8, 2018. Id. at 358-362.

[40] See id. at 358.

[41] Id. at 358-360.

[42] Id. at 4.

[43] Id.

[44] Sy alleged that he received the Resolution dated January 17, 2018 on January 18, 2018 and filed the certiorari petition on March 16, 2018 or within the sixty (60)-day reglementary period (id. at 5).

[45] In Carpio v. Court of Appeals, 705 Phil. 153, 163 (2013), citing Osmeña III v. Social Security System, 559 Phil. 723, 735 (2007), the Court held that "[a] case or issue is considered moot when it ceases to present a justiciable controversy due to supervening events, such that an adjudication of the case or a declaration on the issue would be of no practical value or use."

[46] The Court generally declines jurisdiction over moot cases, subject to these recognized exceptions: (1) there was a grave violation of the Constitution; (2) the case involved a situation of exceptional character and was of paramount public interest; (3) the issues raised required the formulation of controlling principles to guide the Bench, the Bar and the public; and (4) the case was capable of repetition yet evading review (Timbol v. Commission on Elections, 754 Phil. 578, 585 [2015]).

[47] See Marcos v. Sandiganbayan, 317 Phil. 149, 167 (1995).

[48] See Genuino v. De Lima, G.R. Nos. 197930, 199034, 199046, April 17, 2018. See also Leave Division, Office of Administrative Services - Office of the Court Administrator v. Heusdens, 678 Phil. 328, 340 (2011).

[49] Leave Division, Office of Administrative Services - Office of the Court Administrator v. Heusdens, id., citing Silverio v. Court of Appeals, 273 Phil. 128, 133-134 (1991 ).

[50] See Manotoc, Jr. v. Court of Appeals, 226 Phil. 75, 82 (1986).

[51] See Marcos v. Sandiganbayan, supra note 47.

[52] 61 Phil. 404 (1935).

[53] Id. at 408.

[54] Supra note 49.

[55] Id. at 134-135,

[56] See Manotoc, Jr. v. Court of Appeals, supra note 50, at 82. "The condition imposed upon petitioner to make himself available at all times whenever the court requires his presence operates as a valid restriction on his right to travel." (Id.)

[57] The Court held that "this inherent right of the court is recognized by petitioner himself, notwithstanding his allegation that he is at total liberty to leave the country, for he would not have filed the motion for permission to leave the country in the first place, if it were otherwise." (Id. at 83.) See also Defensor-Santiago v. Vasquez, 291 Phil. 664, 684 (1993), wherein the Court stated that where a hold departure order has been issued, "the party concerned must first exhaust the appropriate remedies therein, through a motion for reconsideration or other proper submissions, or by the filing of the requisite application for travel abroad." (Italics supplied)

[58] See Padilla v. Congress of the Philippines, G.R. Nos. 231671 & 231694, July 25, 2017 and Republic v. Caguioa, 704 Phil 315, 333 (2013).

[59] See Marcos v. Sandiganbayan, supra note 47, at 167. In Leave Division, Office of Administrative Services Office of the Court Administrator v. Heusdens, supra note 48, the Court held that "[i]n such cases, the permission of the court is necessary." See also Gutierrez v. People, G.R. No. 193728, April 4, 2018, citing Enrile v. Sandiganbayan, 767 Phil. 147, 161, stating: "Worthy to mention is that the grant of temporary liberty to an accused is an incident of judicial power."

[60] See Gutierrez v. People, id.

[61] Rollo, pp. 45-46.

[62] See Manotoc, Jr. v. Court of Appeals, supra note 50, at 82, wherein the Court stated that "[i]ndeed, if the accused is allowed to leave the country without sufficient reason, he may be placed beyond the reach of courts." (Italics supplied). See also Marcos v. Sandiganbayan, supra note 47.

[63] See Section 14 (2), Article III of the 1987 CONSTITUTION.

[64] Rollo, pp. 109-113.

[65] Before the Securities and Exchange Commission, the Bureau of Immigration, and the National Bureau of Investigation (See Transcript of Stenographic Notes during the hearing dated January 11, 2018; rollo, pp. 256-258).

[66] See Republic v. Harp, 787 Phil. 33, 53 (2016). See also Article 410 of the Civil Code and Section 44, Rule 130 of the Rules of Court.

[67] 360 Phil. 559 (1998).

[68] Id. at 590.

[69] See rollo, pp. 71-73. Sy signed the Memorandum of Cooperation between FNI and Baiyin Nonferrous Group Co. Ltd. during the Philippine President's state visit in China. The partnership is intended to promote closer industrial and commercial cooperation between the two (2) companies and Sy appears personally involved in that venture.

[70] See id. at 125-126.

[71] Section 6, Rule 135 of the Rules of Court states:

Section 6. Means to carry jurisdiction into effect. - When by law jurisdiction is conferred on a court or judicial officer, all auxiliary writs, processes[,] and other means necessary to carry it into effect may be employed by such court or officer x x x."

[72] See Marcos v. Sandiganbayan, supra note 47, at 167-168.

[73] See the Court's various resolutions allowing the accused to travel abroad in these cases: Gutierrez v. People, G.R. No. 193728, April 4, 2018; Minute Resolution in Macairan v. People, G.R. No. 215104, October 9, 2017; Minute Resolution in Valera v. People, G.R. Nos. 209099-100, May 18, 2017; Minute Resolution in Amposta-Martel v. People, G.R. No. 220500, June 6, 2016, November 21, 2016, June 7, 2017, November 29, 2017; and People v. Sandiganbayan, Devanadera, G.R. Nos. 212706-13, May 4, 2016.

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