700 Phil. 534
LEONARDO-DE CASTRO, J.:
[O]n October 20, 2000, the complainant PAOCTF filed with this Honorable Court two applications for the issuance of search warrant for Violation of Article 308 of the Revised Penal Code for Theft of Telephone Services and for Violation of P.D. 401 for unauthorized installation of telephone communication equipments following the complaint of the Philippine Long Distance Telephone Company or PLDT that they were able to monitor the use of the respondents in their premises of Mabuhay card and equipments capable of receiving and transmitting calls from the USA to the Philippines without these calls passing through the facilities of PLDT.
Complainant’s witnesses Richard Dira and Reuben Hinagdanan testified under oath that Respondents are engaged in the business of International [S]imple Resale or unauthorized sale of international long distance calls. They explained that International Simple Resale (ISR) is an alternative call pattern employed by communication provider outside of the country. This is a method of routing and completing international long distance call using pre-paid card which respondents are selling in the States. These calls are made through access number and by passes the PLDT International Gate Way Facilities and by passes the monitoring system, thus making the international long distance calls appear as local calls, to the damage and prejudice of PLDT which is deprived of revenues as a result thereof.
Complainant’s witnesses Richard Dira and Reuben Hinagdanan testified that they found out that respondents are engaged in the business of International Simple Resale on September 13, 2000 when they conducted a test call using Mabuhay Card. They followed the dialing instructions found at the back of the card and dialed “00” and the access code number 18008595845 of the said Mabuhay Card. They were then prompted by a voice to enter the PIN code to validate and after entering the PIN code number 332 1479224, they were again prompted to dial the country code of the Philippines 011-6332 and then dialed telephone number 2563066. Although the test calls were incoming international calls from the United States, they discovered in the course of their test calls that PLDT telephone lines/numbers were identified as the calling party, specifically 032-3449294 and 032-3449280. They testified that the test calls passing through the Mabuhay Card were being reflected as local calls only and not overseas calls. Upon verification, they discovered that the lines were subscribed by Philip Yap whose address is HPS Software Communication Corporation at Plaridel St., Alang-alang, Mandaue City. They also testified that the lines subscribed by Philip Yap were transferred to HPS Software and Communications Corporation of the same address. They further testified that the respondents committed these crimes by installing telecommunication equipments like multiplexers, lines, cables, computers and other switching equipments in the HPS Building and connected these equipments with PLDT telephone lines which coursed the calls through international privatized lines where the call is unmonitored and coursed through the switch equipments in Cebu particularly in Philip Yap’s line and distributed to the subscribers in Cebu.
Satisfied with the affidavits and sworn testimony of the complainant’s witnesses that they were able to trace the long distance calls that they made on September 13, 2000 from the record of these calls in the PLDT telephone numbers 032 3449280 and 032 3449294 of Philip Yap and/or later on transferred to HPS Software and Communication Corporation using the said Mabuhay Card in conducting said test calls, and that they saw the telephone equipments like lines, cables, antennas, computers, modems, multiplexers and other switching equipments, Cisco 2600/3600, Nokia BB256K (with Bayantel marking) inside the compound of the respondents being used for this purpose, this court issued the questioned search warrants to seize the instruments of the crime.[6]
Wherefore, all the foregoing considered, the undersigned finds the existence of probable cause for the crimes of Theft and Violation of PD 401 against all the respondents herein, excluding Fatima Cimafranca, hence, filing in court of corresponding Informations is hereby duly recommended.[11]
WHEREFORE, premises considered, the motion to quash the search warrants and return the things seized is hereby granted. Search Warrant Nos. 2000-10-467 and 2000-10-468 are ordered quashed. The things seized under the said search warrants are hereby ordered to be immediately returned to respondent HPS Software and Communication Corporation.[20]
WHEREFORE, premises considered, the instant petition is hereby GRANTED. Accordingly, the respondent judge’s May 23, 2001 Joint Order is MODIFIED by SETTING ASIDE that portion directing the immediate return of the seized items to respondent HPS. Consequently, the respondent PNP Special Task Force is directed to retrieve possession and take custody of all the seized items, as enumerated in the inventory a quo, pending the final disposition of the appeal filed by the petitioner on respondent judge’s May 23, 2001 Joint Order.[25]
WHEREFORE, the Joint Order of the Regional Trial Court, Branch 55, Mandaue City, dated May 23, 2001, is hereby AFFIRMED.[27]
IV.1. Whether or not the above-entitled two (2) petitions are already moot and academic with this Honorable Supreme Court’s promulgation of the doctrinal decision for the case of Luis Marcos P. Laurel vs. Hon. Zeus C. Abrogar, People of the Philippines and Philippine Long Distance Telephone Company, G.R. No. 155076, February 27, 2006, declaring that: “x x x the telecommunication services provided by PLDT and its business of providing said services are not personal properties under Article 308 of the Revised Penal Code.
x x x In the Philippines, Congress has not amended the Revised Penal Code to include theft of services or theft of business as felonies. Instead, it approved a law, Republic Act No. 8484, otherwise known as the Access Devices Regulation Act of 1998, on February 11, 1998. x x x.”?
In the most unlikely event that the above-entitled two (2) petitions have not yet been rendered moot by the doctrinal decision in the said Laurel case, HPS respectfully submit that the following are the other issues:
IV.2. Whether or not the Court of Appeals committed grave abuse of discretion when it declared that the subject warrants are general warrants?
IV.3. Whether or not the factual findings of the trial court in its May 23, 2001 Order that there was no probable cause in issuing the subject warrants is already conclusive, when the said factual findings are duly supported with evidence; were confirmed by the Court of Appeals; and, PLDT did not refute the damning evidence against it when it still had all the opportunity to do so?
IV.4. Whether or not the trial court committed grave abuse of discretion amounting to lack or in excess of jurisdiction when it stated in its May 23, 2001 Joint Order that:“WHEREFORE, premises considered, the motion to quash the search warrants and return the things seized is hereby granted. Search Warrant Nos. 2000-10-467 and 2000-10-468 are ordered quashed. The things seized under the said search warrants are hereby ordered to be immediately returned to respondent HPS Software and Communications Corporation.”
IV.5. Whether or not PLDT’s memorandum was necessary before a decision can be rendered by the trial court?
IV.6. Whether or not there was a need for PLDT to first file a Motion for Reconsideration before filing its petition for certiorari in the subject case?
IV.7. Whether or not a Petition for Certiorari was the appropriate remedy for PLDT when it had recourse to other plain remedy other than the Petition for Certiorari?
IV.8. Whether or not PLDT has the legal interest and personality to file the present petition when the complainant PAOCTF has already voluntarily complied with or satisfied the Joint Order.
IV.9. Whether or not the Court of Appeals can, in a petition for certiorari, nullify a litigant’s or the Search Warrants Applicant’s exercise of its prerogative of accepting and complying with the said May 23, 2001 Joint Order of the trial court?
IV.10. Whether or not there was forum shopping when PLDT filed an appeal and a petition for certiorari on the same May 23, 2001 Joint Order issued by the trial court?
IV.11. Whether or not the Court of Appeals gravely abused its discretion when it upheld the trial court’s decision to disallow the testimony of Engr. Policarpio Tolentino during the hearings of the motion to quash the subject search warrants when the said Engr. Tolentino was not even presented as witness during the hearing for the application of the subject search warrants; and, as the Court of Appeals had declared: “. . . We cannot but entertain serious doubts as to the regularity of the performance of his official function”?
IV.12. Whether or not PLDT’s counsel can sue its own client, the applicant of the subject search warrant?[31]
I
THE COURT OF APPEALS GRAVELY MISAPPREHENDED THE FACTS WHEN IT SUSTAINED THE QUASHAL OF THE SEARCH WARRANTS DESPITE THE CLEAR AND SUFFICIENT EVIDENCE ON RECORD ESTABLISHING PROBABLE CAUSE FOR THE ISSUANCE THEREOF.II
THE COURT OF APPEALS GRAVELY ERRED IN INDISCRIMINATELY RELYING UPON RULINGS OF THIS HONORABLE COURT THAT ARE NOT APPLICABLE TO THIS CASE.
- THE RULING IN LAGON V. HOOVEN COMALCO INDUSTRIES, INC. THAT LITIGATIONS SHOULD NOT BE RESOLVED ON THE BASIS OF SUPPOSITIONS, DEDUCTIONS IS NOT PROPER IN THIS CASE CONSIDERING THAT:
1. The Search Warrant Case is merely a step preparatory to the filing of criminal cases against the Respondents. Thus, the applicant needed only to establish probable cause for the issuance of the search warrants and not proof beyond reasonable doubt.
2. Even assuming arguendo that there is some controversy as to the value remaining in the Mabuhay card, the totality of evidence submitted during the applications for the Search Warrant is more than sufficient to establish probable cause.- THE RULING IN DAYONOT V. NATIONAL LABOR RELATIONS COMMISSION THAT AN ADVERSE INFERENCE ARISES FROM A PARTY’S FAILURE TO REBUT AN ASSERTION THAT WOULD HAVE NATURALLY INVITED AN IMMEDIATE AND PERVASIVE OPPOSITION IS INAPPLICABLE IN THIS CASE CONSIDERING THAT:
1. PLDT sufficiently rebutted Respondents’ claim that PLDT has no cause to complain because of its prior knowledge of HPS’s internet services.
2. Assuming arguendo that PLDT had knowledge of HPS’s internet services, such fact is immaterial in the determination of the propriety of the Search Warrants issued in this case. The Search Warrants were issued because the evidence presented by PAOCTF overwhelmingly established the existence of probable cause that Respondents were probably committing a crime and the objects used for the crime are in the premises to be searched.III
THE COURT OF APPEALS GRAVELY ERRED IN SUSTAINING THE DISALLOWANCE OF A PORTION OF ENGR. TOLENTINO’S TESTIMONY AND OF THE INTRODUCTION OF THE MABUHAY CARD AND HIS INVESTIGATION REPORT IN VIOLATION OF THE PRESUMPTION THAT OFFICIAL DUTY HAS BEEN REGULARLY PERFORMED.IV
THE COURT OF APPEALS GRAVELY ERRED IN SUSTAINING THE TRIAL COURT’S JOINT ORDER WHICH WAS ISSUED WITH UNDUE HASTE. THE COURT OF APPEALS OVERLOOKED FACTS WHICH CLEARLY DEMONSTRATED THE TRIAL COURT’S PREJUDGMENT OF THE CASE IN FAVOR OF RESPONDENTS, IN VIOLATION OF PLDT’S RIGHT TO DUE PROCESS.V
THE COURT OF APPEALS GRAVELY ERRED IN DECLARING THAT THE CONTESTED SEARCH WARRANTS ARE IN THE NATURE OF GENERAL WARRANTS CONSIDERING THAT:
- THE ISSUE OF WHETHER THE SEARCH WARRANTS ARE GENERAL WARRANTS WAS NEVER RAISED IN THE APPEAL BEFORE IT.
- IN ANY CASE, THE SEARCH WARRANTS STATED WITH SUFFICIENT PARTICULARITY THE PLACE TO BE SEARCHED AND THE OBJECTS TO BE SEIZED, IN CONFORMITY WITH THE CONSTITUTIONAL AND JURISPRUDENTIAL REQUIREMENTS IN THE ISSUANCE OF SEARCH WARRANTS.
VI
RESPONDENTS’ ALLEGATION THAT PLDT FAILED TO COMPLY WITH THE REQUIREMENTS OF SECTION 3, RULE 45 AND SECTION 4, RULE 7 OF THE RULES OF COURT IS COMPLETELY BASELESS CONSIDERING THAT:
- PLDT COMPLIED WITH THE RULES ON PROOF OF SERVICE.
- THE PETITION WAS PROPERLY VERIFIED. ASSUMING ARGUENDO THAT THE ORIGINAL VERIFICATION SUBMITTED WAS DEFICIENT, THE SAME WAS PROMPTLY CORRECTED BY PLDT, IN FULL COMPLIANCE WITH THE DIRECTIVE OF THIS HONORABLE COURT.
- PLDT DID NOT ENGAGE IN FORUM-SHOPPING.
1. The issues, subject matter and reliefs prayed for in the Appeal Case and the Certiorari Case are distinct and separate from one another.
2. Assuming arguendo that the Appeal Case involves the same parties, subject matter and reliefs in the Certiorari Case, then Respondents are equally guilty of forum-shopping when they elevated the Decision of the Court of Appeals in the Certiorari Case to this Honorable Court.VII
RESPONDENTS’ RELIANCE ON THE CASE OF LAUREL V. ABROGAR IS ERRONEOUS AND MISLEADING. LAUREL V. ABROGAR IS NOT YET FINAL AND EXECUTORY, HENCE, CANNOT BIND EVEN THE PARTIES THERETO, MUCH LESS RESPONDENTS HEREIN.[33] (Citations omitted.)
IN A RESOLUTION DATED 13 JANUARY 2009, THIS HONORABLE COURT EN BANC SET ASIDE THE 27 FEBRUARY 2006 DECISION IN LAUREL V. ABROGAR. THEREFORE, THE PREVAILING DOCTRINE WITH RESPECT TO THE ACT OF CONDUCTING ISR OPERATIONS IS THAT IT IS AN ACT OF SUBTRACTION COVERED BY THE PROVISIONS ON THEFT, AND THAT THE BUSINESS OF PROVIDING TELECOMMUNICATION OR TELEPHONE SERVICE IS CONSIDERED PERSONAL PROPERTY WHICH CAN BE THE OBJECT OF THEFT UNDER ARTICLE 308 OF THE REVISED PENAL CODE. THUS, RESPONDENTS CAN NO LONGER RELY ON THE 27 FEBRUARY 2006 DECISION OF THIS HONORABLE COURT IN LAUREL V. ABROGAR.[36]
I
WHETHER OR NOT PLDT HAS LEGAL PERSONALITY TO FILE THE PETITION FOR SPECIAL CIVIL ACTION OF CERTIORARI IN CA-G.R. SP No. 65682 AND, SUBSEQUENTLY, THE PETITION FOR REVIEW IN G.R. NO. 170694 WITHOUT THE CONSENT OR APPROVAL OF THE SOLICITOR GENERAL.II
WHETHER OR NOT PLDT’S PETITION FOR CERTIORARI SHOULD HAVE BEEN DISMISSED OUTRIGHT BY THE COURT OF APPEALS SINCE NO MOTION FOR RECONSIDERATION WAS FILED BY PLDT FROM THE ASSAILED MAY 23, 2001 JOINT ORDER OF THE TRIAL COURT.III
WHETHER OR NOT PLDT COMMITTED FORUM-SHOPPING.IV
WHETHER OR NOT THE TWO (2) SEARCH WARRANTS WERE IMPROPERLY QUASHED.V
WHETHER OR NOT THE SUBJECT SEARCH WARRANTS ARE IN THE NATURE OF GENERAL WARRANTS.VI
WHETHER OR NOT THE RELEASE OF THE ITEMS SEIZED BY VIRTUE OF THE SUBJECT SEARCH WARRANTS WAS PROPER.
In defining theft, under Article 308 of the Revised Penal Code, as the taking of personal property without the consent of the owner thereof, the Philippine Legislature could not have contemplated the human voice which is converted into electronic impulses or electrical current which are transmitted to the party called through the PSTN of respondent PLDT and the ISR of Baynet Card Ltd. within its coverage. When the Revised Penal Code was approved, on December 8, 1930, international telephone calls and the transmission and routing of electronic voice signals or impulses emanating from said calls, through the PSTN, IPL and ISR, were still non- existent. Case law is that, where a legislative history fails to evidence congressional awareness of the scope of the statute claimed by the respondents, a narrow interpretation of the law is more consistent with the usual approach to the construction of the statute. Penal responsibility cannot be extended beyond the fair scope of the statutory mandate.[38]
The acts of “subtraction” include: (a) tampering with any wire, meter, or other apparatus installed or used for generating, containing, conducting, or measuring electricity, telegraph or telephone service; (b) tapping or otherwise wrongfully deflecting or taking any electric current from such wire, meter, or other apparatus; and (c) using or enjoying the benefits of any device by means of which one may fraudulently obtain any current of electricity or any telegraph or telephone service.
In the instant case, the act of conducting ISR operations by illegally connecting various equipment or apparatus to private respondent PLDT’s telephone system, through which petitioner is able to resell or re- route international long distance calls using respondent PLDT’s facilities constitutes all three acts of subtraction mentioned above.
The business of providing telecommunication or telephone service is likewise personal property which can be the object of theft under Article 308 of the Revised Penal Code. Business may be appropriated under Section 2 of Act No. 3952 (Bulk Sales Law), hence, could be the object of theft:“Section 2. Any sale, transfer, mortgage, or assignment of a stock of goods, wares, merchandise, provisions, or materials otherwise than in the ordinary course of trade and the regular prosecution of the business of the vendor, mortgagor, transferor, or assignor, or any sale, transfer, mortgage, or assignment of all, or substantially all, of the business or trade theretofore conducted by the vendor, mortgagor, transferor or assignor, or all, or substantially all, of the fixtures and equipment used in and about the business of the vendor, mortgagor, transferor, or assignor, shall be deemed to be a sale and transfer in bulk, in contemplation of the Act. x x x.”
In Strocheker v. Ramirez, this Court stated:“With regard to the nature of the property thus mortgaged, which is one- half interest in the business above described, such interest is a personal property capable of appropriation and not included in the enumeration of real properties in Article 335 of the Civil Code, and may be the subject of mortgage.”
Interest in business was not specifically enumerated as personal property in the Civil Code in force at the time the above decision was rendered. Yet, interest in business was declared to be personal property since it is capable of appropriation and not included in the enumeration of real properties. Article 414 of the Civil Code provides that all things which are or may be the object of appropriation are considered either real property or personal property. Business is likewise not enumerated as personal property under the Civil Code. Just like interest in business, however, it may be appropriated. Following the ruling in Strochecker v. Ramirez, business should also be classified as personal property. Since it is not included in the exclusive enumeration of real properties under Article 415, it is therefore personal property.
As can be clearly gleaned from the above disquisitions, petitioner’s acts constitute theft of respondent PLDT’s business and service, committed by means of the unlawful use of the latter’s facilities. x x x.[40] (Citations omitted.)
The basic flaw in this reasoning is in erroneously equating the application for and the obtention of a search warrant with the institution and prosecution of a criminal action in a trial court. It would thus categorize what is only a special criminal process, the power to issue which is inherent in all courts, as equivalent to a criminal action, jurisdiction over which is reposed in specific courts of indicated competence. It ignores the fact that the requisites, procedure and purpose for the issuance of a search warrant are completely different from those for the institution of a criminal action.
For, indeed, a warrant, such as a warrant of arrest or a search warrant, merely constitutes process. A search warrant is defined in our jurisdiction as an order in writing issued in the name of the People of the Philippines signed by a judge and directed to a peace officer, commanding him to search for personal property and bring it before the court. A search warrant is in the nature of a criminal process akin to a writ of discovery. It is a special and peculiar remedy, drastic in its nature, and made necessary because of a public necessity.
In American jurisdictions, from which we have taken our jural concept and provisions on search warrants, such warrant is definitively considered merely as a process, generally issued by a court in the exercise of its ancillary jurisdiction, and not a criminal action to be entertained by a court pursuant to its original jurisdiction. We emphasize this fact for purposes of both issues as formulated in this opinion, with the catalogue of authorities herein.
Invariably, a judicial process is defined as a writ, warrant, subpoena, or other formal writing issued by authority of law; also the means of accomplishing an end, including judicial proceedings, or all writs, warrants, summonses, and orders of courts of justice or judicial officers. It is likewise held to include a writ, summons, or order issued in a judicial proceeding to acquire jurisdiction of a person or his property, to expedite the cause or enforce the judgment, or a writ, warrant, mandate, or other process issuing from a court of justice.[42] (Citations omitted.)
The threshold issue that must first be determined is whether or not petitioners have the legal personality and standing to file the appeal.
Private respondent asserts that the proceedings for the issuance and/or quashal of a search warrant are criminal in nature. Thus, the parties in such a case are the “People” as offended party and the accused. A private complainant is relegated to the role of a witness who does not have the right to appeal except where the civil aspect is deemed instituted with the criminal case.
Petitioners, on the other hand, argue that as the offended parties in the criminal case, they have the right to institute an appeal from the questioned order.
From the records it is clear that, as complainants, petitioners were involved in the proceedings which led to the issuance of Search Warrant No. 23. In People v. Nano, the Court declared that while the general rule is that it is only the Solicitor General who is authorized to bring or defend actions on behalf of the People or the Republic of the Philippines once the case is brought before this Court or the Court of Appeals, if there appears to be grave error committed by the judge or a lack of due process, the petition will be deemed filed by the private complainants therein as if it were filed by the Solicitor General. In line with this ruling, the Court gives this petition due course and will allow petitioners to argue their case against the questioned order in lieu of the Solicitor General. (Citation omitted.)
The issue of whether a private complainant, like SCEI, has the right to participate in search warrant proceedings was addressed in the affirmative in United Laboratories, Inc. v. Isip:. . . [A] private individual or a private corporation complaining to the NBI or to a government agency charged with the enforcement of special penal laws, such as the BFAD, may appear, participate and file pleadings in the search warrant proceedings to maintain, inter alia, the validity of the search warrant issued by the court and the admissibility of the properties seized in anticipation of a criminal case to be filed; such private party may do so in collaboration with the NBI or such government agency. The party may file an opposition to a motion to quash the search warrant issued by the court, or a motion for the reconsideration of the court order granting such motion to quash.[45]
(a) where the order is a patent nullity, as where the court a quo has no jurisdiction;
(b) where the questions raised in the certiorari proceedings have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court;
(c) where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the Government or of the petitioner or the subject matter of the petition is perishable;
(d) where, under the circumstances, a motion for reconsideration would be useless;
(e) where petitioner was deprived of due process and there is extreme urgency for relief;
(f) where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable;
(g) where the proceedings in the lower court are a nullity for lack of due process;
(h) where the proceeding was ex parte or in which the petitioner had no opportunity to object; and,
(i) where the issue raised is one purely of law or public interest is involved.[47]
Forum shopping has been defined as an act of a party, against whom an adverse judgment has been rendered in one forum, of seeking and possibly getting a favorable opinion in another forum, other than by appeal or a special civil action for certiorari, or the institution of two or more actions or proceedings grounded on the same cause on the supposition that one or the other court would make a favorable disposition. (Citation omitted.)
The determination of probable cause does not call for the application of rules and standards of proof that a judgment of conviction requires after trial on the merits. As implied by the words themselves, “probable cause” is concerned with probability, not absolute or even moral certainty. The prosecution need not present at this stage proof beyond reasonable doubt. The standards of judgment are those of a reasonably prudent man, not the exacting calibrations of a judge after a full-blown trial.[54] (Citation omitted.)
As a giant in the telecommunications industry, PLDT’s declaration in page 21 of its appellant’s brief that it would “take sometime, or after a certain number of minutes is consumed, before the true value of the card is correspondingly reflected”, by way of further explaining the nature of the subject Mabuhay Card as not being a “smart” card, is conceded with much alacrity.
We are not, however, prepared to subscribe to the theory that the twenty (20) minutes deducted from the balance of the subject Mabuhay Card after a couple of test calls were completed in open court on January 10, 2001 already included the time earlier consumed by the PLDT personnel in conducting their test calls prior to the application for the questioned warrants but belatedly deducted only during the test calls conducted by the court a quo. It is beyond cavil that litigations cannot be properly resolved by suppositions, deductions, or even presumptions, with no basis in evidence, for the truth must have to be determined by the hard rules of admissibility and proof. This Court cannot quite fathom why PLDT, with all the resources available to it, failed to substantiate this particular supposition before the court a quo, when it could have helped their case immensely. We note that at the hearing held on January 10, 2001, the trial judge allowed the conduct of test calls in open court in order to determine if the subject Mabuhay Card had in fact been used, as alleged by PLDT. However, it was proven that the Card retained its original value of $10 despite several test calls already conducted in the past using the same. PLDT should have refuted this damning evidence while it still had all the opportunity to do so, but it did not.
Moreover, if we go by the gauge set by PLDT itself that it would take a certain number of minutes before the true value of the card is reflected accordingly, then we fail to see how the test calls conducted by its personnel on September 13, 2000 could only be deducted on January 10, 2001, after almost four (4) months.
PLDT cannot likewise capitalize on the fact that, despite the series of test calls made by Engr. Jesus Laureno at the NTC, Region VII office on November 3, 2000, the subject Mabuhay Card still had $10 worth of calls. Had PLDT closely examined the testimony of Engr. Laureno in open court, it would have realized that not one of said calls ever got connected to a destination number. Thus:“Q You said that after you heard that female voice which says that you still have ten (10) dollars and you entered your call at the country of destination, you did not proceed that call. Will you please tell the Court of the six test calls that were conducted, how many calls were up to that particular portion?
A Five (5).
Q Will you please tell the Court who… since that were five (5) test calls, how many calls did you personally make up to that particular portion?
A Only one (1).
Q In whose presence?
A In the presence of Director Butaslac, Engr. Miguel, Engr. Yeban, Engr. Hinaut and three (3) PNP personnel, Atty. Muntuerto and Atty. Paloma.
Q What about the other four (4)? You mentioned of five (5) test calls and you made only one, who did the other four (4) test calls which give the said results?
A The third call was done by Engr. Yeban using the same procedure and then followed by the PNP personnel. Actually, the first one who dial or demonstrate is Atty. Muntuerto, me is the second; third is Engr. Yeban; the fourth is the PNP personnel and also the fifth; and the sixth test calls was Engr. Yeban and with that call, we already proceeded to the dialing the destination number which we call one of the numbers of our office.
Q What number of the office was called following the instruction that you have ten (10) dollars and that you enter your destination number now?
A 346-06-87.
Q What happened? You said that, that was done on the sixth test calls, what happened after that destination number was entered?
A The call is not completed and the female voice said to retry again.” (TSN, January 10, 2001, pp. 45-48)
In fine, PLDT cannot argue that the court a quo should not have relied heavily upon the result of the test calls made by the NTC- Regional Office as well as those done in open court on January 10, 2001, as there are other convincing evidence such as the testimonies of its personnel showing that, in fact, test calls and ocular inspections had been conducted yielding positive results. Precisely, the trial court anchored its determination of probable cause for the issuance of the questioned warrants on the sworn statements of the PLDT personnel that test calls had been made using the subject Mabuhay Card. However, said statements were later proven to be wanting in factual basis.[55]
[A] search warrant should particularly describe the place to be searched and the things to be seized. The evident purpose and intent of this requirement is to limit the things to be seized to those, and only those, particularly described in the search warrant – x x x what articles they shall seize, to the end that “unreasonable searches and seizures” may not be made, - that abuses may not be committed. x x x
A search warrant may be said to particularly describe the things to be seized when the description therein is as specific as the circumstances will ordinarily allow; or when the description expresses a conclusion of fact – not of law - by which the warrant officer may be guided in making the search and seizure; or when the things described are limited to those which bear direct relation to the offense for which the warrant is being issued. x x x. (Citations omitted.)
- LINES, CABLES AND ANTENNAS or equipment or device capable of transmitting air waves or frequency, such as an IPL and telephone lines and equipment;
- COMPUTERS or any equipment or device capable of accepting information applying the described process of the information and supplying the result of this processes;
- MODEMS or any equipment or device that enables data terminal equipment such as computers to communicate with each other data- terminal equipment via a telephone line;
- MULTIPLEXERS or any equipment or device that enables two or more signals from different sources to pass through a common cable or transmission line;
- SWITCHING EQUIPMENT or equipment or device capable of connecting telephone lines;
- SOFTWARE, DISKETTES, TAPES, OR EQUIPMENT, or device used for recording and storing information; and
- Manuals, phone cards, access codes, billing statements, receipts, contracts, checks, orders, communications, and documents, lease and/or subscription agreements or contracts, communications and documents pertaining to securing and using telephone lines and or equipment in relation to Mr. Yap/HPS’ ISR Operations.
Although there was no separate order from the respondent judge directing the immediate release of the seized items, such directive was already contained in the Joint Order dated May 23, 2001. The dispositive portion of the assailed Joint Order reads:“WHEREFORE, premises considered, the motion to quash the search warrants and return the things seized is hereby granted. Search Warrant Nos. 2000-10-467 and 2000-10-468 are ordered quashed. The things seized under the said search warrants are hereby ordered to be immediately returned to the respondent HPS Software and Communication Corporation.
SO ORDERED.”
As properly pointed out by the petitioner PLDT, the May 23, 2001
Joint Order of the respondent judge is not “immediately executory”. It is a final order which disposes of the action or proceeding and which may be the subject of an appeal. Section 1, Rule 39 of the 1997 Rules of Civil Procedure provides:“Section 1. Execution upon judgments or final orders – Execution shall issue as a matter of right, on motion, upon judgment or order that disposes of the action or proceeding upon the expiration of the period to appeal therefrom, if no appeal has been duly perfected.
x x x x
From the foregoing, it is clear that execution may issue only upon motion by a party and only upon the expiration of the period to appeal, if no appeal has been perfected. Otherwise, if an appeal has been duly perfected, the parties would have to wait for the final resolution of the appeal before it may execute the judgment or final order – except for instances where an execution pending appeal is granted by the proper court of law.
It would appear that despite the absence of any motion for execution, the respondent judge enforced his Joint Order by directing the release of the seized items from the physical custody of the PNP Special Task Force on June 5, 2001 – less than the fifteen-day prescribed period within which an aggrieved party may file an appeal or for such Joint Order to become final and executory in the absence of an appeal. Clearly the release of the seized items was enforced prematurely and without any previous motion for execution on record.
We cannot give weight to the argument that the seized items were voluntarily released by the PNP Special Task Force, and thus, with such voluntary implementation of the May 23, 2001 Joint Order, the latter is already final and executed.
We take note that the PNP Special Task Force only retained physical custody of the seized items. However, it was clearly the respondent judge who ordered and released said seized items with his directive in the May 23, 2001 Joint Order. The PNP Special Task Force could not release the said items without the directive and authority of the court a quo. Hence, such compliance cannot be deemed voluntary at all.
From the foregoing discussion, it is apparent that the respondent judge’s directive in the May 23, 2001 Joint Order for the immediate return of the seized items to the respondent HPS was enforced prematurely and in grave abuse of discretion. Clearly, the Joint Order dated May 23, 2001 was not yet final and executory when it was implemented on June 5, 2001. Moreover, a motion for execution filed by the interested party is obviously lacking. Thus, this Court concludes that there is no legal basis for the implementation of the May 23, 2001 Joint Order when the seized items were released on June 5, 2001.[68]