SC favors PLDT, upholds theft on int?l calls

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The Supreme Court has granted the petition of telco giant PLDT to reverse and set aside the rulings of the Court of Appeals (CA) that upheld a trial court?s joint order quashing two search warrants and ordering the return of seized equipment to a company allegedly involved in International Simple Resale (ISR) or unauthorized sale of international long distance calls.

In a 39-page consolidated decision, the SC agreed with the former 4th Division of CA which had ruled that there was indeed grave abuse of discretion on the part of the trial court in the premature haste attending the release of the items seized.

The search warrants were sought by the Presidential Anti-Organized Crime Task Force (PAOCTF) in 2000 against HPS Corporation for violation of Art. 308 of the Revised Penal Code (RPC) and PD 401 (unauthorized installation of telephone communication equipment) following PLDT?s complaint that they were able to monitor the use of HPS Corporation?s in their premises of Mabuhay card and equipment capable of receiving and transmitting calls from the United States of America to the Philippines without these calls passing through PLDT?s facilities.

HPS Corporation were engaged in the business of ISR. An alternative call pattern employed by communication provider outside of the country, ISR is a method of routing and completing international long distance calls using lines, cables, antennae, and/or air wave frequency which connect directly to the local or domestic exchange facilities of the country where the call is destined.

The High Court ruled that the two search warrants were improperly quashed. It found merit in PLDT?s arguments that the CA?s 18th Division erroneously appreciated the facts of the case and the significance of the evidence on record when it sustained the quashal of the subject search warrants by the trial court mainly on the basis of test calls using a Mabuhay card with PIN code number 332 1479224, which was the same Mabuhay card that was presented by PLDT to support its application for a search warrant against HPS Corporation.

The SC refused to subscribe to the conclusion that the determination of whether or not test calls were indeed made by PLDT on the Mabuhay card with PIN code number 332 1479224 cannot be ascertained solely by checking the value reflected on the said Mabuhay card.

It noted that PLDT never represented that the Mabuhay card had an accurate recording system that would automatically deduct the value of a call from the value of the card at the time the call was made.

The court also held that since the value of the subject Mabuhay card may be susceptible to tampering, it would have been more prudent for the trial court and the CA to weigh the other evidence on record.

The SC found that the pieces of evidence presented by PLDT, when taken together, were more than sufficient to support a finding that test calls were indeed made by PLDT?s witnesses using Mabuhay card with PIN code number 332 1479224 and, more importantly, that probable cause necessary to engender a belief that HPS Corporation had probably committed the crime of theft through illegal ISR activities exists.

These pieces of evidence include affidavits of PLDT people, call detail records, results of a traffic study conducted by PLDT on 20 direct telephone lines subscribed by HPS, among others.

The court also found that the subject search warrants were not general warrants because the items to be seized were sufficiently identified physically and were also specifically identified by stating their relation to the offenses charged which are theft and violation of PD 401 through the conduct of illegal ISR activities.

According to the court, a search warrant issued must particularly describe the place to be searched and persons or things to be seized in order for it to be valid, otherwise, it is considered as a general warrant which is proscribed by both jurisprudence and the 1987 Constitution.

The court held that PLDT had legal personality to file the petition saying that the case at bar does not involve an ordinary criminal action which requires the participation and conformity of the City Prosecutor or the Solicitor General when raised before appellate courts.

The court further held that PLDT?s petition before the CA was properly given due course despite the non-fulfillment of the requirement of the filing of a motion of reconsideration (of the May 23, 2001 Joint Order) due to the peculiar circumstances obtaining in this case.

It said that the said rule is not absolute and that jurisprudence has laid down exceptions, which include where petitioner was deprived of due process, when the filing of a petition for certiorari is proper notwithstanding the failure to file a motion for reconsideration.

In the case at bar, the court stressed that it was ?apparent that PLDT was deprived of due process when the trial court expeditiously released the items seized by virtue of the subject search warrants without waiting for PLDT to file its memorandum and despite the fact that no motion for execution was filed by respondents which is required in this case.?

The court also held that PLDT did not commit forum shopping because the appeal that PLDT elevated to the CA was an examination of the validity of the trial court?s action of quashing the search warrants that it initially issued while, on the other hand, the petition for certiorari was an inquiry on whether or not the trial court judge committed grave abuse of discretion when he ordered the release of the seized items subject of the search warrants despite the fact that its May 23, 2001 Joint Order had not yet become final and executory.

The court reversed Laurel vs. Abrogar which had ruled that ISR activity does not constitute the crime of theft under Art. 308 of the RPC since international long distance calls and the business of providing telecommunication or telephone services are not personal properties under Art. 308 of the RPC when it granted PLDT?s motion for reconsideration.

Here, the court categorically stated that an ISR activity is an act of subtraction covered by the provisions on Theft, and that the business of providing telecommunication or telephone service is personal property, which can be object of theft under Article 308 of the Revised Penal Code (RPC).

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