571 Phil. 73
The undersigned Prosecutor II hereby accuses ZEDRIC SAYCO Y VILLANUEVA of the crime of Illegal Possession of Firearm and Ammunitions penalized and defined under Section 1 of Presidential Decree Number 1866 as amended by Republic Act Number 8294, committed as follows:Upon arraignment, petitioner entered a plea of “Not Guilty”.
That on or about January 3, 1999, at Bais City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did, then and there willfully, unlawfully and feloniously possess and carry away one (1) caliber 9MM marked “SIGSAUER P229” with fourteen (14) live ammunitions and with Serial Number AE 25171, without first having obtained the proper license or authority to possess the same.
An act contrary.
WHEREFORE, premises considered, the Court finds that the evidence presented has sufficiently established the guilt of the accused beyond reasonable doubt. The accused Zedric V. Sayco is convicted for violation of Section 1 of Presidential Decree No. 1866, as amended by Republic Act No. 8294. There being no modifying circumstances, and applying the Indeterminate Sentence Law, the Court sentences the accused to a prison term ranging from THREE YEARS, SIX MONTHS AND TWENTY DAYS of Prision Correccional Medium as minimum, to FIVE YEARS, FOUR MONTHS and TWENTY DAYS of Prision Correccional Maximum as maximum, and to pay a fine of FIFTEEN THOUSAND PESOS. The firearm (Exhibit A) and the ammunitions (Exhibit B) are forfeited in favor of the government, to be disposed of in accordance with law.On appeal, the Regional Trial Court (RTC), Bais City issued a Decision dated March 14, 2003, affirming the conviction of petitioner but lowering his penalty as follows:
IT IS SO ORDERED.
WHEREFORE, premises considered, the Judgment dated August 2, 2002 rendered by the Municipal Trial Court in Cities, Bais City in Criminal Case No. 99-001 is hereby affirmed in all respects subject only to the modification with respect to the penalty imposed by the trial court. The herein accused-appellant is hereby sentenced to the indeterminate penalty of four (4) months of arresto mayor as maximum [sic] to two (2) years, four (4) months and one (1) day of prision correccional as maximum [sic].Petitioner filed with the CA a Petition for Review but the same was denied in the May 23, 2003 CA Resolution assailed herein. Petitioner’s Motion for Reconsideration was also denied by the CA in its August 7, 2003 Resolution.
As summarized by the RTC and MTCC, the evidence for the prosecution consisted of the following:
Whether the lower court erred in convicting the petitioner for violation of P.D. 1866, as amended by RA 8294, despite the latter’s proof of authority to possess the subject firearm.
Whether the prosecution’s evidence proved the petitioner’s guilt beyond reasonable doubt.
For his defense, petitioner does not deny that he was in possession of the subject firearm and ammunitions when he was apprehended on January 3, 1999 in Bais City, but he insists that he had the requisite permits to carry the same, specifically:
EVIDENCE OF THE PROSECUTION
The first prosecution witness in the person of PO3 Mariano Labe testified on January 17, 2002. He declared that on or about 3:35 in the afternoon of January 3, 1999, while they were at the Police Station, they received a telephone call from a concerned citizen from Tavera Street, Bais City, informing them that one unidentified person was inside Abueva’s Repair Shop located at Tavera Street, tucking a handgun on his waist. They immediately went to the aforementioned place, and upon their arrival thereat, they saw one unidentified person tucking a handgun on his right side waistline. They approached the unidentified person and asked him if he had a license to possess said firearm, but the answer was in the negative. At this juncture, they immediately effected the arrest, and confiscated from his possession and custody a Caliber 9MM marked “SIGSAUER P299” with 14 live ammunitions with Serial No. AE 25171. The arrested person was identified as Zedric Sayco y Villanueva, a resident of Binalbagan, Negros Occidental.
SPO2 VALENTINO ZAMORA, member of the PNP Bais City, testified on February 26, 2002. He was presented to corroborate the testimony of Mariano Labe. He further declared that during the incident, they talked to the accused in Cebuano, but they found out then that the latter is an Ilonggo, so they spoke to him in English.
SPO2 VICENTE DORADO also testified on February 26, 2002. He corroborated the testimony of SPO2 Valentino Zamora and PO2 Mariano Labe.
The following exhibits were admitted as part of the evidence of the prosecution:
Exhibit A - one (1) 9 mm pistol with serial no. 25171.
Exhibit B - fourteen (14) pieces live ammunition and one (1) magazine placed in a black plastic bag.
Exhibit C - Joint Affidavit of the police officers. (Emphasis supplied)
Hqs Field Station 743, 7ISU, ISG, PA, Camp Montelibano Sr., Bacolod City, Philippines, 01 January 1999. I acknowledge to have received from MAJOR RICARDO B. BAYHON (INF) PA, Commanding Officer, FS743, 7ISU, ISG, PA the following property for which I am responsible, subject to the provision of the accounting law and which will be used in the office of FS 7431.and 2) Mission Order dated January 1, 1999, thus:
QTY UNIT NAME OF DESCRIPTION CLASSI-FICATION UNIT TOTAL PRICE 1 ea Cal 9mm (SIG SAUER)
SN: AE 25171
Pistol 2 ea Mags for Cal 9mm pistol 24 ea Ctgs for 9mm Ammo
Basis: For use of subject EP in connection with his official duties/mission in the AOR.
Nolasco B. James (SGD)
SSg (Inf) PA
FS Supply NCO
RICARDO B BAYHON (SGD)
Major (INF) PA
CA Zedric V. Zayco (SGD)
The RTC and MTCC gave no significance to the foregoing documents. The MTCC held that the Memorandum Receipt and Mission Order do not constitute the license required by law because “they were not issued by the Philippine National Police (PNP) Firearms and Explosives Unit, but by the Commanding Officer of the Philippine Army who is not authorized by law to issue licenses to civilians to possess firearms and ammunitions.” The RTC added that, as held in Pastrano v. Court of Appeals and Belga v. Buban, said documents cannot take the place of the requisite license.
TO: CA Cedric V. Zayco
I. DESTINATION Negros Island II. PURPOSE C O N F I D E N T I A L III. DURATION 01 January 1999 to 31 March 1999 IV. AUTHORIZED ATTIRE/UNIFORM GOA ( ) BDA ( ) Civilian (x) V. AUTHORIZED TO CARRY FIREARMS: (x) Yes ( ) No.
Caliber Make Kind Serial Nr MR/License Nr Nr Ammo 9mm Sig Sauer Pistol AE25171 ISG Prop 24 rds VI. SPECIFIC INSTRUCTIONS: a. For personnel in uniform, the firearms shall be placed in holster securely attached to the belt. Personnel in uniform without holster and personnel in civilian attire will ensure that their firearms are concealed unless in actual and lawful use. x x x x RICARDO B. BAYHON (SGD)
Major (INF) PA
FS 743 Commander
Section 6. The Insular Chief shall prescribe for the Insular Constabulary suitable arms, uniform, and equipment and shall report to the Commission, through the Civil Governor, his action in this regard, together with a statement of the cost, to the end that appropriation may be made to defray the cost thereof. The guns, revolvers, and ammunitions needed to equip the insular and municipal police shall be purchased by the Insular Purchasing Agent on the order of the Chief of Insular Constabulary, by whom they shall be distributed to the provinces and municipalities as they may be needed. The Chief of the Insular Constabulary shall keep a record of the guns and revolvers distributed, by their numbers, to municipalities and provinces x x x. (Emphasis supplied)Firearms owned by the government may therefore be distributed by the Chief of the Insular Constabulary to the members of the insular and municipal police, with merely a record of the distribution being required.
Section 1. It shall be unlawful for any person, firm, or corporation, for purposes of sale, to import, buy or otherwise acquire, dispose of, possess, or have the custody of any rifle, musket, carbine, shotgun, revolver, pistol, or air rifle, except air rifles of small caliber and limited range used as toys, or any other deadly weapon x x x unless and until such person, firm, or corporation shall secure a license, pay the license fee, and execute a bond and otherwise comply with the requirements of this Act and the rules and regulations issued in executive orders by the Governor-General pursuant to the provisions of this Act x x x. (Emphasis supplied)but exempted therefrom the following government-owned firearms:
Section 16. The foregoing provisions of this Act shall not apply to firearms and ammunition therefor regularly and lawfully issued to officers, soldiers, sailors, or marines of the United States Army and Navy, the Constabulary, guards in the employ of the Bureau of Prisons, the police force of the City of Manila, provincial prisoners and jails when such firearms are in possession of such officials and public servants for use in the performance of their official duties. (Emphasis supplied)The 1917 Revised Administrative Code retained the foregoing exemption:
Section 879. Exemption as to firearms and ammunition used by military and naval forces or by peace officers. - This article shall not apply to firearms and ammunition regularly and lawfully issued to officers, soldiers, sailors, or marines of the Unites States Army and Navy, the Philippine Constabulary, guards in the employment of the Bureau of Prisons, municipal police, provincial governors, lieutenant governors, provincial treasurers, municipal police, provincial governors, lieutenant governors, provincial treasurers, municipal treasurers, municipal presidents, and guards of provincial prisoners and jails, when such firearms are in possession of such officials and public servants for use in the performance of their official duties. (Emphasis supplied)In People of the Philippines v. Macarandang, we interpreted Section 879 of the 1917 Revised Administrative Code as applicable to a secret agent appointed by a governor as said agent holds a position equivalent to that of peace officer or member of the municipal police. We reiterated this ruling in People of the Philippines v. Licera.
The law is explicit that except as thereafter specially allowed, "it shall be unlawful for any person to x x x possess any firearm, detached parts of firearms or ammunition therefor, or any instrument or implement used or intended to be used in the manufacture of firearms, parts of firearms, or ammunition." The next section provides that "firearms and ammunition regularly and lawfully issued to officers, soldiers, sailors, or marines [of the Armed Forces of the Philippines], the Philippine Constabulary, guards in the employment of the Bureau of Prisons, municipal police, provincial governors, lieutenant governors, provincial treasurers, municipal treasurers, municipal mayors, and guards of provincial prisoners and jails," are not covered "when such firearms are in possession of such officials and public servants for use in the performance of their official duties."We also abandoned the view that good faith is a defense against a prosecution for illegal possession of firearms.
The law cannot be any clearer. No provision is made for a secret agent. As such he is not exempt. Our task is equally clear. The first and fundamental duty of courts is to apply the law. "Construction and interpretation come only after it has been demonstrated that application is impossible or inadequate without them." The conviction of the accused must stand. It cannot be set aside.
Accused however would rely on People v. Macarandang, where a secret agent was acquitted on appeal on the assumption that the appointment "of the accused as a secret agent to assist in the maintenance of peace and order campaigns and detection of crimes, sufficiently put him within the category of a "peace officer" equivalent even to a member of the municipal police expressly covered by section 879." Such reliance is misplaced. It is not within the power of this Court to set aside the clear and explicit mandate of a statutory provision. To the extent therefore that this decision conflicts with what was held in People v. Macarandang, it no longer speaks with authority. (Emphasis supplied)
Section 1. Unlawful manufacture, sale, acquisition, disposition or possession of firearms and ammunition or implements used or intended to be used in the manufacture of firearms or ammunition. - x x x The penalty of prision mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor.P.D. No. 1866 was later amended by R.A. No. 8294, which lowered the imposable penalties for illegal possession of firearm when no other crime is committed. However, neither law amended or repealed Section 879 of the 1917 Revised Administrative Code. Even Executive Order No. 292, otherwise known as the 1987 Administrative Code, left Section 879 untouched.
x x x x
Section 7. Unauthorized issuance of authority to carry firearms and/or ammunition outside of residence. - The penalty of prision correccional shall be imposed upon any person, civilian or military, who shall issue authority to carry firearm and/or ammunition outside of residence without authority therefor.
Section 1. Definition of terms. - For purposes of Presidential Decree No. 1866, the following terms shall mean and be interpreted as hereinafter defined:Section 6 (a) of the Implementing Rules and Regulations was later amended to read as follows:
x x x x
d. “Mission Order” - is a written directive or order issued by government authority as enumerated in Section 5 hereof to persons who are under his supervision and control for a definite purpose or objective during a specified period and to such place or places as therein mentioned which may entitle the bearer thereof to carry his duly issued or licensed firearm outside of his residence when so specified therein.
e. “Permit to Carry Firearm Outside of Residence” - is a written authority issued to any person by the Chief of Constabulary which entitles such person to carry his licensed or lawfully issued firearms outside of residence for the duration and purpose specified therein.
f. “Residence” - refers to that place where the firearm and ammunition are being permanently kept. It includes the office or house where they are kept and the premises of the house enclosed by walls and gates separating said premises from adjacent properties. For firearms covered by a regular license or special permit, their residence shall be that specified in the license or permit; and those covered by a Certificate of Registration or a Memorandum Receipt, their residence in the office/station to which the grantee belongs.
x x x x
Section 5. Authority to issue mission order involving the carrying of firearm. - The following are authorized to issue mission orders with provisions which may entitle the bearer thereof to carry his issued/licensed firearm and ammunition for the duration of such mission:
a. For officers, men and regular civilian agents of the Ministry of National Defense (MOND)/Armed Forces of the Philippines (AFP) including members of the ICHDF:
x x x x
(8) Provincial commanders, METRODISCOM commanders, company commanders and their equivalent in the Philippine Air Force and Philippine Navy.
x x x x
Section 6. Specific guidelines in the carrying of firearms outside of residence. - The following specific guidelines shall be strictly observed in the carrying of firearm outside of residence:
a. Lawful Holders of Firearm – Lawful holders of firearm (regular licenses, special permit, certificate of registration or M/R) are prohibited from carrying their firearms outside of residence except when they have been issued by the Chief of Constabulary a permit to carry firearm outside of their residence as provided for in Section hereof or in actual performance of duty or official mission under Section 4 and 5 hereof. (Emphasis supplied.)
a-1. Mission Order. - x x x No Mission Order shall be issued to any civilian agent authorizing the same to carry firearms outside of residence unless he/she is included in the regular plantilla of the government agency involved in law enforcement and is receiving regular compensation for the services he/she is rendering in the agency. Further, the civilian agent must be included in a specific law enforcement/police/intelligence project proposal or special project which specifically requires the use of firearm(s) to insure its accomplishment and that the project is duly approved at the PC Regional Command level or its equivalent level in other major services of the AFP, INP and NBI, or at higher level of command. (Emphasis supplied)The Ministry of Justice also issued Memorandum Circular No. 8 dated October 16, 1986, further strengthening the foregoing Implementing Rules and Regulations, to wit:
x x x It is unlawful for any person or office to issue a mission order authorizing the carrying of firearms by any person unless the following conditions are met:Earlier, a Letter Directive dated May 19, 1984 was issued to the Chief of Staff of the AFP, prohibiting the issuance of government-owned firearms to civilians, viz:
- That the AFP officer is authorized by the law to issue the mission order.
- That the recipient or addressee of the mission order is also authorized by the law to have a mission order, i.e., he must be an organic member of the command/unit of the AFP officer issuing the mission order. If mission orders are issued to civilians (not members of the uniformed service), they must be civilian agents included in the regular plantilla of the government agency involved in law enforcement and are receiving regular compensation for services they are rendering. (Emphasis supplied)
It is noted that the Implementing Rules and Regulations of P.D. No. 1866, as amended, allude to “memorandum receipts” covering government-owned firearms. While said rules do not define the term, we can derive its meaning from Section 492 of the Government Auditing and Accounting Manual (Volume I: Government Auditing Rules and Regulations) to wit:
x x x x
- The Implementing Rules and Regulations of P.D. 1866 which codifies all the laws on firearms and explosives clarify the following:
b. Section 5 identifies the officials/officers of the MOND/AFP who are authorized to issue Mission Orders to enable AFP officers, men and regular civilian agents carry their firearms in the performance of their duties. Regular civilian agents are those who are covered by Permanent or Temporary Civil Service attested appointments in the plantilla of civilian employees. Special or confidential civilian agents or the like are not regular civilian agents and are therefore violating the law when they carry firearms (personal-owned or government-issued) with Mission Orders.
c. There are no other laws or AFP regulations authorizing the loan of AFP-owned firearms to private firms and individuals. (Emphasis supplied)
Section 492. Issues of equipment to officers and employees. - Equipment issued by the property officer for official use of officials and employees shall be covered by Memorandum Receipt for Equipment (MR) which shall be renewed every January of the third year after issue. MRs not renewed after three years shall not be considered in making physical count of the equipment. (Emphasis supplied)From the foregoing discussion, therefore, the rules governing memorandum receipts and mission orders covering the issuance to and the possession and/or carrying of government-owned firearms by special or confidential civilian agents may be synthesized as follows:
Section 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same. (Emphasis supplied)P.D. No. 1866 imposed the penalty of reclusion temporal in its maximum period to reclusion perpetua for illegal possession of firearms. R.A. No. 8294 lowered the penalty, as follows:
Section 1. Section 1 of Presidential Decree No. 1866, as amended, is hereby further amended to read as follows:Under Article 27 of the Revised Penal Code, prision correccional in its maximum period ranges from four (4) years, two (2) months and one (1) day, to six (6) years. As prescribed under Section 1 of the Indeterminate Sentence Law, the appropriate penalty that can be imposed on petitioner should keep within said range. Thus, there being no attendant mitigating or aggravating circumstance, and considering that petitioner accepted the subject firearm and ammunitions from the government under the erroneous notion that the memorandum receipt and mission order issued to him legitimized his possession thereof, the appropriate indeterminate penalty is four (4) years, two (2) months and one (1) day as minimum to five (5) years, four (4) months and twenty-one (21) days as maximum.Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. - The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed. (Emphasis supplied.)