Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 169933 March 9, 2007
SU ZHI SHAN @ ALVIN CHING SO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES/SOLICITOR GENERAL, Respondent.
D E C I S I O N
CARPIO MORALES, J.:
Two informations for violation of Republic Act (RA) 6425, as amended by RA 7659 (Dangerous Drugs Act), against Su Zhi Shan alias Alvin Ching So were filed before the Regional Trial Court (RTC) of Malabon. The first, docketed as Criminal Case No. 22992-MN, reads:
x x x x
That on or about May 31, 2000, in Malabon, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent and without license nor authority of law, did then and there, willfully, unlawfully, and feloniously sell and deliver to a poseur-buyer four hundred ninety five point three (495.3) grams of methamphetamine hydrochloride, more or less, and commonly known as shabu, which is a regulated drug.
CONTRARY TO LAW.
x x x x1
The second, docketed as Criminal Case No. 22993-MN, reads:
x x x x
That on or about March 31, 2000, in Barangay Potrero, Malabon, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized to possess or use any regulated drug, did then and there, willfully, unlawfully, and knowingly have in his possession methamphetamine hydrochloride, otherwise known as shabu, a regulated drug with an approximate weight of fifteen thousand seventy six point one (15,076.1) grams, in violation of the aforecited law [Section 16, Article III of RA No. 6425 as amended by RA No. 7659].
CONTRARY TO LAW.
x x x x2
From the account of the prosecution, the following events led to the filing of the cases:
On being informed on March 20, 2000 by a confidential informant that one Su Zhi Shan alias Alvin Ching So (the accused) was pushing drugs in Manila, the Philippine National Police (PNP) Narcotics Group conducted a 10-day surveillance in the vicinity of the residence of the accused at 19 Yellowbell, Araneta Village, Potrero, Malabon, Metro Manila.
In the course of the surveillance, a test-buy operation was conducted by SPO1 Ed Badua (SPO1 Badua) and the informant during which 1.27 grams of a substance were obtained. When subjected to laboratory examination, the substance was found positive for methamphetamine hydrochloride or shabu.
Another test-buy, which was later to become a buy-bust operation, was thereafter arranged by SPO1 Badua and the informer to take place on March 31, 2000.3
As scheduled, PO1 Christopher Guste (PO1 Guste), acting as poseur-buyer, and the informant went to the pre-arranged meeting place at 31 McArthur Highway corner Victoneta Avenue in Malabon, Metro Manila on March 31, 2000. As the accused arrived, the confidential informant spoke to him in Chinese and pointed to PO1 Guste as the buyer. When the accused asked PO1 Guste for the purchase money, the latter brought out a folded long brown envelope containing marked money and two bundles of boodle money. The accused soon went inside his car and returned after a few seconds, carrying a red plastic bag which he handed to PO1 Guste and which the latter found to contain a white crystalline substance. PO1 Guste then placed the plastic bag in his car through an open window and handed the envelope of marked money to the accused as he (PO1 Guste) scratched his head, a pre-arranged signal that the sale was consummated. Policemen at once arrested the accused and brought him to Camp Crame.4
While the accused was in custody, the PNP Narcotics Group applied for, and was granted, a search warrant on his residence.5 During the search, the PNP Narcotics Group seized a box of 16 transparent plastic bags containing an undetermined quantity of white crystalline substance, and a digital weighing scale.6
The red plastic bag of white crystalline substance which was obtained during the buy-bust operation on March 31, 2000 and those seized during the raid on the residence of the accused tested positive for methamphetamine hydrochloride or shabu.7
The PNP Narcotics Group thus brought the accused to the Office of the National Prosecution Service of the Department of Justice for inquest proceedings. Finding probable cause to hale the accused into court, the above-quoted informations were filed against him.
The accused, denying that his name is "Alvin Ching So" or "Su Zhi Shan," claimed that he was a victim of hulidap.8 He gave the following details of the circumstances attendant to his arrest:
After he withdrew ₱500,000 from Equitable Bank at Blumentritt, Sta. Cruz, Manila on March 31, 2000, he was intercepted by unidentified men somewhere along Blumentritt Street. He was immediately blindfolded, forced into another car, and divested of his clutch bag containing the ₱500,000 he had just withdrawn. He was then brought to Camp Crame after which he was forced by his captors to repair to his apartment and, over his protest, his room was searched.9
The accused questioned the search warrant as a "general warrant" which is not based on the applicant’s personal knowledge.10
Branch 72 of the RTC of Malabon, by Decision of April 3, 2001, found the accused guilty beyond reasonable doubt of both drug pushing/selling and of possession. Thus the trial court disposed:
WHEREFORE, premises considered, judgment is hereby rendered finding the accused guilty beyond reasonable doubt of the crimes of drug pushing/selling 495.3 grams of methamphetamine hydrochloride and of illegally possessing 15,076.1 grams of said substance, which are penalized under Sections 15 and 16, Art. III, RA 6425, as amended by RA 7659. In view of the attendance of one aggravating circumstance in the commission of these offenses [use of a motor vehicle], which was not offset by any mitigating circumstance, the accused is hereby condemned to suffer the penalty of DEATH and to pay a fine of P10,000,000.00 in each of the two cases.
The Revo Van owned by So as shown in Exhibit Q which is now in the possession of the Special Project Office (SPO), Narcotics Group, Camp Crame, Quezon City is ordered forfeited in favor of the government for being an instrument for the crime to be disposed of under the rules governing the same (Section 20, Article IV, RA 6425, as amended by RA 7659).
The 17 plastic bags of methamphetamine hydrochloride subjects of these cases custody of which was retained by the PNP Crime Laboratory, are also forfeited in favor of the government to be disposed of under rules governing the same.
In both cases, costs against the accused.
SO ORDERED.11 (Italics in the original; Emphasis and underscoring supplied)
The records of the case were transmitted to this Court on August 1, 2001 for automatic review.12 In view, however, of the ruling in People v. Mateo,13 this Court transferred the case to the Court of Appeals on October 19, 2004.14
By Decision15 of June 29, 2005, the Court of Appeals affirmed the conviction of the accused for drug pushing/selling but reduced the penalty to reclusion perpetua on the ground that the trial court erred in appreciating the aggravating circumstance of "use of motor vehicle."16 Noting the presence of irregularities in the procurement of the search warrant and the ensuing search and seizure of evidence which was presented in the case for illegal possession of shabu, the Court of Appeals acquitted the accused therefor.17
The Court of Appeals thus disposed as follows:
WHEREFORE, this Court renders judgment as follows:
a. The Decision pertaining to Crim. Case No. 22992-MN, for violation of Section 15, RA No. 6425, as amended, is AFFIRMED with the MODIFICATION that appellant is hereby sentenced to suffer the penalty of reclusion perpetua;
b. Appellant is hereby ACQUITTED on reasonable doubt in Crim. Case No. 22993-MN, for violation of Section 16, RA No. 6425, as amended. However, the 15,076.1 grams of "shabu" shall remain in the custody of the PNP Crime Laboratory, for proper disposition in accordance with law; and
c. The van ordered by the trial court to be forfeited in favor of the State shall be returned to him through the regular legal processes.
SO ORDERED.18 (Italics, emphasis and underscoring in the original)
His Motion for Reconsideration19 having been denied,20 the accused, through counsel, filed the instant Petition21 for review, assigning 24 errors22 which are synthesized in capsule form as follows:
1. Convicting the wrong person
2. Not finding irregularities in the procurement and service of the search warrant
3. Considering documents which were not offered in evidence, thus ignoring Sec. 34, Rule 132 of the Rules of Court
4. Failing to comply with standard procedures of drug analysis
5. Holding that possessing or selling of any substance, such as tawas, as shabu is punishable
6. Failure to apply the ruling in People v. Ventura[23] that "it is incredible to buy without the shabu in sight"24
7. Failing to apply the rule on entertained denial or alibi
8. Imposing two outlandish death penalties and imposing ₱20 million fine
9. Crediting the clear hearsay evidence regarding the alleged test-buy and the bizarre story regarding the alleged buy-bust
10. Holding that the elements of selling and possessing shabu are present although not proved (specifically the element that the accused lacked the authority to sell shabu)25
11. Finding that there was no withdrawal of ₱500,000, and
12. Ignoring non-compliance with safeguards against illegal buy-bust or with Supreme Court decisions on buy-bust.
At the outset, this Court declares it unnecessary to entertain the issues on alleged irregularities in the procurement and service of the search warrant, the Court of Appeals having acquitted the accused in the case for illegal possession of shabu. Just as it declares it unnecessary to dwell on the alleged impropriety in the imposition of the death penalty, the appellate court having imposed instead reclusion perpetua, and given that RA 9346 has prohibited the imposition of death penalty to thus accordingly modify the present provision of RA 7659.26
In support of his plea for acquittal, the accused (hereafter petitioner) submits that the following grounds dent the credibility of PO1 Guste’s account on the buy-bust operation:
FIRST – Badua and confidential informant allegedly conducted a test-buy. They never mentioned or arranged a buy-bust operation with Guste or anybody. Instead, Badua and Balolong applied for a search warrant based on the alleged test-buy. They did not participate in the alleged buy-bust. They never coordinated with Guste they never arranged any buy-bust with Guste.
SECOND – There was no negotiation to sell. Badua and the confidential informant never negotiated with the accused to sell along MacArthur Highway cor. Victoneta Avenue where the alleged buy-bust was conducted. Badua, Balolong and the alleged confidential informant were not presented during the trial.
THIRD – There was no surveillance of the venue of the alleged buy[-]bust operation. Matta testified that what was placed under surveillance was allegedly the residence of the appellant and Ryan Ong for the purpose of securing the search warrant.
FOURTH – The alleged money was not in sight. It was allegedly wrapped.
FIFTH – Alvin Ching So (not Su Jing Yue or So Alvin Cheng) allegedly delivered the shabu without first seeing the money. Guste allegedly delivered the wrapped boodle without seeing the shabu first.
SIXTH – On cross-examination, Guste admitted that his only participation was allegedly as poseur-buyer.
SEVENTH – The testimony of Guste, alleged poseur-buyer was not corroborated; hence, incredible.
EIGHT – The alleged buy-bust is contrary to human experience and ordinary course of things. The boodle is readily detectible, especially only two (2) pieces of genuine money were allegedly placed on top and bottom of the bundles of boodle. The bundles were wrapped with brown envelope folded twice. The boodle was not shown to the alleged seller. How could there be buying and busting under the circumstances? The buyer himself does not believe selling could be made for a boodle appearing as fake; hence the clumsy use of two (2) pieces of genuine money. x x x27 (Emphasis in the original)
Petitioner’s submissions do not persuade. PO1 Guste’s testimony was not hearsay. He was the poseur-buyer who participated in the buy-bust operation. His testimony was corroborated by Chief Inspector Eleazar Matta who declared that: He (Matta) was present when the confidential informer relayed information regarding Alvin Ching So’s drug pushing activities;28 he participated in planning and conducting the surveillance operation in the vicinity of the residence of the accused;29 after the test-buy was conducted, SPO1 Badua reported to him;30 and he was the team leader dispatched to conduct and he was present during the buy-bust operation on March 31, 2000 at Victoneta Avenue, Malabon.31
PO1 Guste’s account is likewise complemented by overwhelming documentary and object evidence, including his request for laboratory examination of the seized substance,32 the laboratory examination reports,33 the buy-bust money used,34 the pre-operational coordination sheet of the PNP Narcotics Group,35 the Booking Sheet/Arrest Report,36 and the substance obtained during the buy-bust operation37 and a photograph thereof.38
That the prosecution failed to present SPO1 Badua and the confidential informer does not weaken its case as the discretion to choose witnesses to be presented for the State and to dispense with the testimonies of witnesses who would only give corroboration rests on the prosecution.39
If petitioner believed that there were witnesses who could have exculpated him, he could have called for them, even by compulsory process,40 but he did not.
That no evidence was presented on the conduct of the surveillance and of the venue for the test-bust operation and that the surveillance was for the purpose of procuring the search warrant do not help petitioner’s case. For even if no prior surveillance were made, the validity of an entrapment operation, especially when the buy-bust team members were accompanied to the scene by their informant,41 as in the case at bar,42 is not affected.
Invoking People v. Ventura43 and inviting attention to the fact that the purchase money presented as evidence of the second buy-bust operation was not visible as it was wrapped in an envelope, petitioner argues:
In [People v. Ventura], the Supreme Court ruled that it is "incredible to buy without the shabu in sight." Logically, it is incredible to sell without the money in sight. To sell without the seeing and counting the money is contrary to human nature, habit and ordinary course of things.44 (Italics and emphasis in the original)
Petitioner’s argument does not persuade too. It will be recalled that a test-buy operation had earlier been conducted, facilitated by the same confidential informant who was undoubtedly known to petitioner. Given the trust accorded to the informant, the hurried nature of consummating similar transactions and the place of the transaction – a busy street open to bystanders and passersby, there was nothing unusual about petitioner’s not checking first the contents of the brown envelope.
Neither does the contention of petitioner that it would have been improbable for the buy-bust sale to have taken place because under the circumstances the boodle money could have been easily detected as fake persuade. This Court has affirmed convictions in cases of buy-bust operations where the accused actually saw that the "money" was boodle.45
Respecting petitioner’s disclaimer that he is the Su Zhi Shan alias Alvin Ching So accused in the case, he contends that there is no scintilla of evidence offered to prove that said accused is the same Su Jing Yue alias So Alvin Cheng that he is.46 This contention falls in the face of this Court’s repeated rulings that the erroneous designation in the Information of the name of the accused does not vitiate it if it is clearly proven that the person accused and brought to court is the person who committed the crime.47
As People v. Navaja48 holds, whether there lived another person with the same name as the accused in the area where the buy-bust operation was conducted is immaterial, the identity of the therein accused as the person who sold the marijuana to the poseur-buyers having been established,49 as in the present case.
It bears noting that the information charging petitioner was prepared after he was arrested and while he was in custody. There could, therefore, be no doubt that the person who was arrested and brought to court is the same person charged in the information. Even PO1 Guste identified petitioner in open court50 as the person who sold the shabu to him as the poseur-buyer.
On petitioner’s taking issue with the manner by which laboratory analysis of the confiscated plastic bags of shabu were examined, thus:
The Chemist allegedly examined only 3% of the confiscated substance. With respect to the 3% specimen, she did not know how and why the 3% represented the entire substance in 16 [sic] packages. She did not get the specimen or sampling in accordance with universally accepted sampling procedure; that is mixing, coning and quartering of 10 packages in accordance with the UN Guideline. Therefore, she could not know that the 3% specimen was the correct representative specimen.51 (Emphasis in original),
he proffers that a quantitative examination of the confiscated substance should have been done because
x x x [the] substance sold as shabu being merely regulated, should be proved beyond reasonable doubt as real shabu. Hence, the essential requisite of proper qualitative and quantitative examination to determine the shabu content of a substance suspected as shabu. The reason is: The punishable crime is selling or possessing shabu. Besides, the penalty is based on the shabu content. For example, we have a 200 grams [sic] of tawas. 99.999% is tawas, .001% is shabu. The 200 grams of tawas cannot be the basis of [the penalty] because it is only positive of .001% of shabu.52 (Emphasis in the original)
Albeit this issue is immaterial in so far as the charge for illegal possession is concerned, petitioner having been acquitted by the appellate court, this Court notes, en passant, that petitioner’s position does not likewise persuade.
Laboratory tests confirmed that the substance confiscated during the operations is shabu.53 The records of the case reveal that the forensic chemical officer, Police Inspector Miladenia O. Tapan, who conducted the laboratory examination took representative samples, by using the quartering method, from the plastic bag of substance subject of the test-buy transaction, as well as from that subject of the buy-bust operation.54
Case law has it that the forensic chemist is not mandated to examine the entire mass of shabu confiscated by the policemen xxx. It is enough that a sample of the said substance be subjected to qualitative examination. x x x [A] sample taken from one package is logically presumed to be representative of the entire contents of the package unless proven otherwise by the accused himself.55 (Citations omitted; Emphasis and underscoring supplied)
In the case at bar, the accused failed to present evidence refuting the presumption that the samples taken from the contents of the plastic bags are representative of the entire contents thereof. As this Court observed in People v. Johnson,56 "x x x if accused appellant were not satisfied with the results, it would have been a simple matter for [him] to ask for an independent examination of the substance by another chemist. This [he] did not do."57
As for the contention of the accused that the prosecution failed to prove that he lacked the authority to sell shabu, this Court, in addressing a similar contention in People v. Manalo, 58 held:
The general rule is that if a criminal charge is predicated on a negative allegation, or a negative averment is an essential element of a crime, the prosecution has the burden to prove the charge. However, this rule admits of exceptions. Where the negative of an issue does not permit of direct proof, or where the facts are more immediately within the knowledge of the accused, the onus probandi rests upon him. Stated otherwise, it is not incumbent on the prosecution to adduce positive evidence to support a negative averment the truth of which is fairly indicated by established circumstances and which, if untrue, could readily be disproved by the production of documents or other evidence within the defendant’s knowledge or control. For example, where a charge is made that a defendant carried on a certain business without a license (as in the case at bar, where the accused is charged with the sale of a regulated drug without authority), the fact that he has a license is a matter which is peculiarly within his knowledge and he must establish that fact or suffer conviction. x x x59 (Italics in the original)
As in Manalo, the circumstances surrounding the two occasions of sale subject of the first case indicate that petitioner had no authority to sell shabu. Petitioner sold the shabu not in a hospital or pharmacy but at a street corner.60 He could have very easily presented a copy of his license or any other document proving his authority to sell but he did not.61
The bare allegation then of petitioner that his constitutional rights were violated during the March 31, 2000 buy-bust operation62 cannot overcome the presumption of regularity in the performance of official duties enjoyed by the officers tasked to enforce the law.63
The trial court thus correctly rejected the defense of hulidap. Indeed, courts generally view with disfavor this defense, which is commonly raised in drug cases, it being easy to concoct and difficult to prove.64
Exhibits "5" and "6" – the photocopies of withdrawal slips65 presented by the accused to prove that he withdrew money before the supposed hulidap incident – do not help petitioner’s case. As the trial court noted,
The "hulidap" aspect of the defense put up by So will not hold water in view of Exhibit W, a pass book of Equitable PCI Bank in the name of Alvin C. So bearing the same account number as those listed in Exhibits 5 and 6. This passbook does not reflect any withdrawal having been made on March 31, 2000 in the total amount of P606,000.00. As a matter of fact, no withdrawals in said total amount could have been made at all on said date because the outstanding balance of the deposit as of March 29, 2000 was only P25, 256.14 and this is the last entry in the said pass book, thus showing that on March 31, 2000, no withdrawal at all was made from said account.66 (Emphasis and underscoring supplied)
Petitioner nevertheless contends that the trial court, in appreciating the bank passbook as evidence, violated Section 34, Rule 132 of the Rules of Evidence which prohibits courts from considering evidence which has not been formally offered. The records of the case show, however, that the passbook was formally offered as evidence. 67
Finally, on the discrediting of petitioner’s defenses of denial and/or alibi, these defenses gain strength only if the prosecution fails to meet the quantum of proof required to overcome the constitutional presumption of innocence.68 In the case at bar, however, the prosecution has proven the guilt of petitioner beyond reasonable doubt.
WHEREFORE, the petition is DENIED and the challenged decision of the Court of Appeals appealed from is AFFIRMED.
SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
ANTONIO T. CARPIO
Associate Justice |
DANTE O. TINGA
Asscociate Justice |
PRESBITERO J. VELASCO, JR.
Associate Justice
A T T E S T A T I O N
I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
C E R T I F I C A T I O N
Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairperson’s Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice
Footnotes
1 Records, pp. 1b-2.
2 Id. at 62.
3 Folder of TSN, pp. 110-114, 349-357.
4 Id. at 115-202.
5 Records, pp. 181-182.
6 Id. at 183-184.
7 Id. at 174-176; Folder of TSN, pp. 5-19.
8 Id. at 156.
9 Id. at 4-6, 156-157; Folder of TSN, pp. 785-789.
10 Id. at 18-19, 34-41.
11 Id. at 227-228.
12 CA rollo, p. 2.
13 G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640, 653-658, where this Court provided for an intermediate review by the CA in cases when the penalty imposed is death, life imprisonment, or reclusion perpetua.
14 CA rollo, p. 445.
15 Id. at 560-575. Penned by Associate Justice Magdangal M. de Leon, with the concurrences of Associate Justices Salvador J. Valdez, Jr. and Mariano C. Del Castillo.
16 Id. at 571, 574.
17 Id. at 461.
18 Id. at 460-461.
19 Id. at 463-484.
20 Id. at 493-495.
21 Rollo, pp. 3-65.
22 Id. at 6-7.
23 G.R. No. 88670, November 19, 1992, 215 SCRA 789.
24 Id. at 793.
25 Rollo, pp. 45-46.
26 Vide RA No. 9346, Section 1.
27 Rollo, pp. 27-28.
28 Folder of TSN, p. 351.
29 Id. at 352-355.
30 Id. at 356-357.
31 Id. at 361-362.
32 Records, pp. 167, 176.
33 Id. at 168, 175-176.
34 Id. at 168-169, 177; Folder of TSN, pp. 117-120.
35 Id. at 169, 178.
36 Id. at 170, 185.
37 Id. at 170-171; Folder of TSN, pp. 526-528.
38 Id. at 171-172.
39 Vide People v. Bagawe, G.R. Nos. 88515-16, April 7, 1992, 207 SCRA 761, 763-764; People v. Co, G.R. No. 94369, October 28, 1991, 203 SCRA 252, 254; People v. Ramos, G.R. No. 88301, October 28, 1991, 203 SCRA 237, 243.
40 People v. Sariol, G.R. No. 83809, June 22, 1989, 174 SCRA 237, 243-244, citing People v.Boholst, G.R. No. L-73008, July 23, 1987, 152 SCRA 263, 269.
41 People v. Ganguso, 320 Phil. 324, 340 (1995).
42 Folder of TSN, pp. 184, 186-187.
43 Supra note 23.
44 Rollo, p. 46.
45 Vide People v. So, 421 Phil. 929, 934, 943-944 (2001); People v. Co, 315 Phil. 829, 835, 844-850 (1995).
46 Rollo, p. 8.
47 Vide People v. Martinez, G.R. Nos. 105376-77, August 5, 1994, 235 SCRA 171, 182; People v. Cagadas, Jr., G.R. No. 88044, January 23, 1991, 193 SCRA 216, 222.
48 G.R. No. 104044, March 10, 1993, 220 SCRA 624.
49 Id. at 637.
50 Folder of TSN, p. 194.
51 Rollo, p. 18.
52 Id. at 21-22.
53 Records, pp. 175-176.
54 Folder of TSN, pp. 8-9.
55 People v. Chiu, G.R. Nos. 142915-16, February 27, 2004, 424 SCRA 72, 73.
56 401 Phil. 734 (2000).
57 Id. at 748.
58 G.R. No. 107623, February 23, 1994, 230 SCRA 309.
59 Id. at 318-319.
60 Folder of TSN, pp. 183-197.
61 Vide People v. Manalo, supra note 58, at 319.
62 Rollo, pp. 56-64.
63 Vide People v. Gonzales, G.R. No. 105689, February 23, 1994, 230 SCRA 291, 296-297.
64 People v. Cheng Ho Chua, 364 Phil. 497, 514 (1999).
65 Records, pp. 159-160.
66 Id. at 224.
67 Id. at 172.
68 Vide Cosep v. People, 352 Phil. 979, 988 (1998); People v. Niño, 352 Phil. 764, 772 (1998); People v. Labarias, G.R. No. 87165, January 25, 1993, 217 SCRA 483, 488; People v. Bacalzo, G.R. No. 89811, March 22, 1991, 195 SCRA 557, 563; People v. Navoa, 227 Phil. 472, 492 (1986).
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