Laurel v. Abrogar

EN BANC

[G.R. No. 155076. January 13, 2009.]

LUIS MARCOS P. LAUREL, petitioner, vs. HON. ZEUS C. ABROGAR, Presiding Judge of the Regional Trial Court, Makati City, Branch 150, PEOPLE OF THE PHILIPPINES & PHILIPPINE LONG DISTANCE TELEPHONE COMPANY, respondents.

R E S O L U T I O N

YNARES-SANTIAGO, J p:

On February 27, 2006, this Court's First Division rendered judgment in this case as follows: aEDCSI

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed Orders of the Regional Trial Court and the Decision of the Court of Appeals are REVERSED and SET ASIDE. The Regional Trial Court is directed to issue an order granting the motion of the petitioner to quash the Amended Information.

SO ORDERED. 1

By way of brief background, petitioner is one of the accused in Criminal Case No. 99-2425, filed with the Regional Trial Court of Makati City, Branch 150. The Amended Information charged the accused with theft under Article 308 of the Revised Penal Code, committed as follows:

On or about September 10-19, 1999, or prior thereto in Makati City, and within the jurisdiction of this Honorable Court, the accused, conspiring and confederating together and all of them mutually helping and aiding one another, with intent to gain and without the knowledge and consent of the Philippine Long Distance Telephone (PLDT), did then and there willfully, unlawfully and feloniously take, steal and use the international long distance calls belonging to PLDT by conducting International Simple Resale (ISR), which is a method of routing and completing international long distance calls using lines, cables, antenae, and/or air wave frequency which connect directly to the local or domestic exchange facilities of the country where the call is destined, effectively stealing this business from PLDT while using its facilities in the estimated amount of P20,370,651.92 to the damage and prejudice of PLDT, in the said amount.

CONTRARY TO LAW. 2

Petitioner filed a "Motion to Quash (with Motion to Defer Arraignment)," on the ground that the factual allegations in the Amended Information do not constitute the felony of theft. The trial court denied the Motion to Quash the Amended Information, as well as petitioner's subsequent Motion for Reconsideration.

Petitioner's special civil action for certiorari was dismissed by the Court of Appeals. Thus, petitioner filed the instant petition for review with this Court.

In the above-quoted Decision, this Court held that the Amended Information does not contain material allegations charging petitioner with theft of personal property since international long distance calls and the business of providing telecommunication or telephone services are not personal properties under Article 308 of the Revised Penal Code.

Respondent Philippine Long Distance Telephone Company (PLDT) filed a Motion for Reconsideration with Motion to Refer the Case to the Supreme Court En Banc. It maintains that the Amended Information charging petitioner with theft is valid and sufficient; that it states the names of all the accused who were specifically charged with the crime of theft of PLDT's international calls and business of providing telecommunication or telephone service on or about September 10 to 19, 1999 in Makati City by conducting ISR or International Simple Resale; that it identifies the international calls and business of providing telecommunication or telephone service of PLDT as the personal properties which were unlawfully taken by the accused; and that it satisfies the test of sufficiency as it enabled a person of common understanding to know the charge against him and the court to render judgment properly. ISHaCD

PLDT further insists that the Revised Penal Code should be interpreted in the context of the Civil Code's definition of real and personal property. The enumeration of real properties in Article 415 of the Civil Code is exclusive such that all those not included therein are personal properties. Since Article 308 of the Revised Penal Code used the words "personal property" without qualification, it follows that all "personal properties" as understood in the context of the Civil Code, may be the subject of theft under Article 308 of the Revised Penal Code. PLDT alleges that the international calls and business of providing telecommunication or telephone service are personal properties capable of appropriation and can be objects of theft.

PLDT also argues that "taking" in relation to theft under the Revised Penal Code does not require "asportation", the sole requisite being that the object should be capable of "appropriation". The element of "taking" referred to in Article 308 of the Revised Penal Code means the act of depriving another of the possession and dominion of a movable coupled with the intention, at the time of the "taking", of withholding it with the character of permanency. There must be intent to appropriate, which means to deprive the lawful owner of the thing. Thus, the term "personal properties" under Article 308 of the Revised Penal Code is not limited to only personal properties which are "susceptible of being severed from a mass or larger quantity and of being transported from place to place."

PLDT likewise alleges that as early as the 1930s, international telephone calls were in existence; hence, there is no basis for this Court's finding that the Legislature could not have contemplated the theft of international telephone calls and the unlawful transmission and routing of electronic voice signals or impulses emanating from such calls by unlawfully tampering with the telephone device as within the coverage of the Revised Penal Code.

According to respondent, the "international phone calls" which are "electric currents or sets of electric impulses transmitted through a medium, and carry a pattern representing the human voice to a receiver," are personal properties which may be subject of theft. Article 416 (3) of the Civil Code deems "forces of nature" (which includes electricity) which are brought under the control by science, as personal property.

In his Comment to PLDT's motion for reconsideration, petitioner Laurel claims that a telephone call is a conversation on the phone or a communication carried out using the telephone. It is not synonymous to electric current or impulses. Hence, it may not be considered as personal property susceptible of appropriation. Petitioner claims that the analogy between generated electricity and telephone calls is misplaced. PLDT does not produce or generate telephone calls. It only provides the facilities or services for the transmission and switching of the calls. He also insists that "business" is not personal property. It is not the "business" that is protected but the "right to carry on a business". This right is what is considered as property. Since the services of PLDT cannot be considered as "property", the same may not be subject of theft. AaHDSI

The Office of the Solicitor General (OSG) agrees with respondent PLDT that "international phone calls and the business or service of providing international phone calls" are subsumed in the enumeration and definition of personal property under the Civil Code hence, may be proper subjects of theft. It noted that the cases of United States v. Genato, 3 United States v. Carlos 4 and United States v. Tambunting, 5 which recognized intangible properties like gas and electricity as personal properties, are deemed incorporated in our penal laws. Moreover, the theft provision in the Revised Penal Code was deliberately couched in broad terms precisely to be all-encompassing and embracing even such scenario that could not have been easily anticipated.

According to the OSG, prosecution under Republic Act (RA) No. 8484 or the Access Device Regulations Act of 1998 and RA 8792 or the Electronic Commerce Act of 2000 does not preclude prosecution under the Revised Penal Code for the crime of theft. The latter embraces unauthorized appropriation or use of PLDT's international calls, service and business, for personal profit or gain, to the prejudice of PLDT as owner thereof. On the other hand, the special laws punish the surreptitious and advanced technical means employed to illegally obtain the subject service and business. Even assuming that the correct indictment should have been under RA 8484, the quashal of the information would still not be proper. The charge of theft as alleged in the Information should be taken in relation to RA 8484 because it is the elements, and not the designation of the crime, that control.

Considering the gravity and complexity of the novel questions of law involved in this case, the Special First Division resolved to refer the same to the Banc.

We resolve to grant the Motion for Reconsideration but remand the case to the trial court for proper clarification of the Amended Information.

Article 308 of the Revised Penal Code provides:

Art. 308. Who are liable for theft. — Theft is committed by any person who, with intent to gain but without violence against, or intimidation of persons nor force upon things, shall take personal property of another without the latter's consent.

The elements of theft under Article 308 of the Revised Penal Code are as follows: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished without the use of violence against or intimidation of persons or force upon things. SDHETI

Prior to the passage of the Revised Penal Code on December 8, 1930, the definition of the term "personal property" in the penal code provision on theft had been established in Philippine jurisprudence. This Court, in United States v. Genato, United States v. Carlos, and United States v. Tambunting, consistently ruled that any personal property, tangible or intangible, corporeal or incorporeal, capable of appropriation can be the object of theft.

Moreover, since the passage of the Revised Penal Code on December 8, 1930, the term "personal property" has had a generally accepted definition in civil law. In Article 335 of the Civil Code of Spain, "personal property" is defined as "anything susceptible of appropriation and not included in the foregoing chapter (not real property)". Thus, the term "personal property" in the Revised Penal Code should be interpreted in the context of the Civil Code provisions in accordance with the rule on statutory construction that where words have been long used in a technical sense and have been judicially construed to have a certain meaning, and have been adopted by the legislature as having a certain meaning prior to a particular statute, in which they are used, the words used in such statute should be construed according to the sense in which they have been previously used. 6 In fact, this Court used the Civil Code definition of "personal property" in interpreting the theft provision of the penal code in United States v. Carlos.

Cognizant of the definition given by jurisprudence and the Civil Code of Spain to the term "personal property" at the time the old Penal Code was being revised, still the legislature did not limit or qualify the definition of "personal property" in the Revised Penal Code. Neither did it provide a restrictive definition or an exclusive enumeration of "personal property" in the Revised Penal Code, thereby showing its intent to retain for the term an extensive and unqualified interpretation. Consequently, any property which is not included in the enumeration of real properties under the Civil Code and capable of appropriation can be the subject of theft under the Revised Penal Code.

The only requirement for a personal property to be the object of theft under the penal code is that it be capable of appropriation. It need not be capable of "asportation", which is defined as "carrying away". 7 Jurisprudence is settled that to "take" under the theft provision of the penal code does not require asportation or carrying away. 8

To appropriate means to deprive the lawful owner of the thing. 9 The word "take" in the Revised Penal Code includes any act intended to transfer possession which, as held in the assailed Decision, may be committed through the use of the offenders' own hands, as well as any mechanical device, such as an access device or card as in the instant case. This includes controlling the destination of the property stolen to deprive the owner of the property, such as the use of a meter tampering, as held in Natividad v. Court of Appeals, 10 use of a device to fraudulently obtain gas, as held in United States v. Tambunting, and the use of a jumper to divert electricity, as held in the cases of United States v. Genato, United States v. Carlos, and United States v. Menagas. 11 cDCaTH

As illustrated in the above cases, appropriation of forces of nature which are brought under control by science such as electrical energy can be achieved by tampering with any apparatus used for generating or measuring such forces of nature, wrongfully redirecting such forces of nature from such apparatus, or using any device to fraudulently obtain such forces of nature. In the instant case, petitioner was charged with engaging in International Simple Resale (ISR) or the unauthorized routing and completing of international long distance calls using lines, cables, antennae, and/or air wave frequency and connecting these calls directly to the local or domestic exchange facilities of the country where destined.

As early as 1910, the Court declared in Genato that ownership over electricity (which an international long distance call consists of), as well as telephone service, is protected by the provisions on theft of the Penal Code. The pertinent provision of the Revised Ordinance of the City of Manila, which was involved in the said case, reads as follows:

Injury to electric apparatus; Tapping current; Evidence. — No person shall destroy, mutilate, deface, or otherwise injure or tamper with any wire, meter, or other apparatus installed or used for generating, containing, conducting, or measuring electricity, telegraph or telephone service, nor tap or otherwise wrongfully deflect or take any electric current from such wire, meter, or other apparatus.

No person shall, for any purpose whatsoever, use or enjoy the benefits of any device by means of which he may fraudulently obtain any current of electricity or any telegraph or telephone service; and the existence in any building premises of any such device shall, in the absence of satisfactory explanation, be deemed sufficient evidence of such use by the persons benefiting thereby.

It was further ruled that even without the above ordinance, the acts of subtraction punished therein are covered by the provisions on theft of the Penal Code then in force, thus:

Even without them (ordinance), the right of the ownership of electric current is secured by articles 517 and 518 of the Penal Code; the application of these articles in cases of subtraction of gas, a fluid used for lighting, and in some respects resembling electricity, is confirmed by the rule laid down in the decisions of the supreme court of Spain of January 20, 1887, and April 1, 1897, construing and enforcing the provisions of articles 530 and 531 of the Penal Code of that country, articles 517 and 518 of the code in force in these islands.

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. HAaECD

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 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. . . . .

In Strochecker v. Ramirez, 12 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. 13 aSTcCE

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. In this regard, the Amended Information inaccurately describes the offense by making it appear that what petitioner took were the international long distance telephone calls, rather than respondent PLDT's business.

A perusal of the records of this case readily reveals that petitioner and respondent PLDT extensively discussed the issue of ownership of telephone calls. The prosecution has taken the position that said telephone calls belong to respondent PLDT. This is evident from its Comment where it defined the issue of this case as whether or not "the unauthorized use or appropriation of PLDT international telephone calls, service and facilities, for the purpose of generating personal profit or gain that should have otherwise belonged to PLDT, constitutes theft." 14

In discussing the issue of ownership, petitioner and respondent PLDT gave their respective explanations on how a telephone call is generated. 15 For its part, respondent PLDT explains the process of generating a telephone call as follows:

38. The role of telecommunication companies is not limited to merely providing the medium (i.e., the electric current) through which the human voice/voice signal of the caller is transmitted. Before the human voice/voice signal can be so transmitted, a telecommunication company, using its facilities, must first break down or decode the human voice/voice signal into electronic impulses and subject the same to further augmentation and enhancements. Only after such process of conversion will the resulting electronic impulses be transmitted by a telecommunication company, again, through the use of its facilities. Upon reaching the destination of the call, the telecommunication company will again break down or decode the electronic impulses back to human voice/voice signal before the called party receives the same. In other words, a telecommunication company both converts/reconverts the human voice/voice signal and provides the medium for transmitting the same.

39. Moreover, in the case of an international telephone call, once the electronic impulses originating from a foreign telecommunication company country (i.e., Japan) reaches the Philippines through a local telecommunication company (i.e., private respondent PLDT), it is the latter which decodes, augments and enhances the electronic impulses back to the human voice/voice signal and provides the medium (i.e., electric current) to enable the called party to receive the call. Thus, it is not true that the foreign telecommunication company provides (1) the electric current which transmits the human voice/voice signal of the caller and (2) the electric current for the called party to receive said human voice/voice signal. HIEAcC

40. Thus, contrary to petitioner Laurel's assertion, once the electronic impulses or electric current originating from a foreign telecommunication company (i.e., Japan) reaches private respondent PLDT's network, it is private respondent PLDT which decodes, augments and enhances the electronic impulses back to the human voice/voice signal and provides the medium (i.e., electric current) to enable the called party to receive the call. Without private respondent PLDT's network, the human voice/voice signal of the calling party will never reach the called party. 16

In the assailed Decision, it was conceded that in making the international phone calls, the human voice is converted into electrical impulses or electric current which are transmitted to the party called. A telephone call, therefore, is electrical energy. It was also held in the assailed Decision that intangible property such as electrical energy is capable of appropriation because it may be taken and carried away. Electricity is personal property under Article 416 (3) of the Civil Code, which enumerates "forces of nature which are brought under control by science." 17

Indeed, while it may be conceded that "international long distance calls", the matter alleged to be stolen in the instant case, take the form of electrical energy, it cannot be said that such international long distance calls were personal properties belonging to PLDT since the latter could not have acquired ownership over such calls. PLDT merely encodes, augments, enhances, decodes and transmits said calls using its complex communications infrastructure and facilities. PLDT not being the owner of said telephone calls, then it could not validly claim that such telephone calls were taken without its consent. It is the use of these communications facilities without the consent of PLDT that constitutes the crime of theft, which is the unlawful taking of the telephone services and business.

Therefore, the business of providing telecommunication and the telephone service are personal property under Article 308 of the Revised Penal Code, and the act of engaging in ISR is an act of "subtraction" penalized under said article. However, the Amended Information describes the thing taken as, "international long distance calls", and only later mentions "stealing the business from PLDT" as the manner by which the gain was derived by the accused. In order to correct this inaccuracy of description, this case must be remanded to the trial court and the prosecution directed to amend the Amended Information, to clearly state that the property subject of the theft are the services and business of respondent PLDT. Parenthetically, this amendment is not necessitated by a mistake in charging the proper offense, which would have called for the dismissal of the information under Rule 110, Section 14 and Rule 119, Section 19 of the Revised Rules on Criminal Procedure. To be sure, the crime is properly designated as one of theft. The purpose of the amendment is simply to ensure that the accused is fully and sufficiently apprised of the nature and cause of the charge against him, and thus guaranteed of his rights under the Constitution.

ACCORDINGLY, the motion for reconsideration is GRANTED. The assailed Decision dated February 27, 2006 is RECONSIDERED and SET ASIDE. The Decision of the Court of Appeals in CA-G.R. SP No. 68841 affirming the Order issued by Judge Zeus C. Abrogar of the Regional Trial Court of Makati City, Branch 150, which denied the Motion to Quash (With Motion to Defer Arraignment) in Criminal Case No. 99-2425 for theft, is AFFIRMED. The case is remanded to the trial court and the Public Prosecutor of Makati City is hereby DIRECTED to amend the Amended Information to show that the property subject of the theft were services and business of the private offended party.

SO ORDERED.

Puno, C.J., Quisumbing, Carpio, Austria-Martinez, Carpio-Morales, Azcuna, Chico-Nazario, Velasco, Jr., Nachura, Leonardo-de Castro and Brion, JJ., concur.

Corona, J., see separate opinion.

Tinga, J., please see concurring opinion.

Separate Opinions

CORONA, J.,:

The bone of contention in this case is: who owns the telephone calls that we make? If respondent Philippine Long Distance Telephone Company (PLDT) can claim ownership over them, then petitioner Luis Marcos P. Laurel (Laurel) can be charged with theft of such telephone calls under Article 308 of the Revised Penal Code. If PLDT does not own them, then the crime of theft was not committed and Laurel cannot be charged with this crime. aHTCIc

One view is that PLDT owns the telephone calls because it is responsible for creating such calls. The opposing view is that it is the caller who owns the phone calls and PLDT merely encodes and transmits them.

The question of whether PLDT creates the phone calls or merely encodes and transmits them is a question of fact that can be answered by science. I agree with Justice Consuelo Ynares-Santiago that, while telephone calls "take the form of electrical energy, it cannot be said that such [telephone] calls were personal properties belonging to PLDT since the latter could not have acquired ownership over such calls. PLDT merely encodes, augments, enhances, decodes and transmits said calls using its complex infrastructure and facilities."

In my view, it is essential to differentiate between the conversation of a caller and recipient of the call, and the telephone service that made the call possible. Undoubtedly, any conversation between or among individuals is theirs alone. For example, if two children use two empty cans and a string as a makeshift play phone, they themselves create their "phone call". However, if individuals separated by long distances use the telephone and have a conversation through the telephone lines of the PLDT, then the latter owns the service which made possible the resulting call. The conversation, however, remains protected by our privacy laws.

Accordingly, I vote to GRANT the motion for reconsideration.

TINGA, J., concurring:

I do not have any substantive disagreements with the ponencia. I write separately to flesh out one of the key issues behind the Court's present disposition — whether the Philippine Long Distance Company (PLDT) can validly claim ownership over the telephone calls made using its telephone services. As the subject Amended Information had alleged that petitioners had "unlawfully and feloniously take, steal and use the international long distance calls belonging to PLDT", said information could have been sustained only if its premise were accepted that PLDT indeed owned those phone calls.

I.

It is best to begin with an overview of the facts that precede this case. Among many other services, PLDT operates an International Gateway Facility (IGF), 1 through which pass phone calls originating from overseas to local PLDT phones. However, there exists a method of routing and completing international long distance calls called International Simple Resale (ISR), which makes use of International Private Leased Lines (IPL). Because IPL lines may be linked to switching equipment connected to a PLDT phone line, it becomes possible to make an overseas phone call to the Philippines without having to pass through the IGF. 2

Petitioner Laurel was, until November of 1999, the Corporate Secretary of Baynet Co., Ltd. (Baynet), as well as a member of its Board of Directors. 3 Baynet was in the business of selling phone cards to people who wished to call people in the Philippines. Each phone card, which apparently was sold in Japan, contained an ISR telephone number and a PIN. For the caller to use the phone card, he or she would dial the ISR number indicated, and would be connected to an ISR operator. The caller would then supply the ISR operator with the PIN, and the operator would then connect the caller with the recipient of the call in the Philippines through the IPL lines. Because the IPL Lines bypass the IGF, PLDT as operator of the IGF would have no way of knowing that the long-distance call was being made. 4

Apparently, the coursing of long distance calls through ISR is not per se illegal. For example, the Federal Communications Commission of the United States is authorized by statute to approve long-distance calling through ISR for calls made to certain countries, as it has done so with nations such as Australia, France and Japan. 5 However, as indicated by the Office of the Solicitor General's support for the subject prosecution, there was no authority yet for the practice during the time of the subject incidents.

Taking issue with this scheme, PLDT filed a complaint against Baynet "for network fraud". 6 A search warrant issued caused the seizure of various equipment used in Baynet's operations. However, after the inquest investigation, the State Prosecutor, on 28 January 2000, issued a Resolution finding probable cause "for theft under Article 308" of the RPC and for violating Presidential Decree No. 401, a law which criminalizes the installation of a telephone connection without the prior authority from the PLDT, or the tampering of its lines. 7 However, when the Information was filed against petitioner with the Regional Trial Court (RTC) of Makati on 8 February 2000, the Information charged petitioner only with theft under Article 308 of the RPC. The accusatory portion of the Amended Information reads as follows: HCTEDa

On or about September 10-19, 1999, or prior thereto, in Makati City, and within the jurisdiction of this Honorable Court, the accused, conspiring and confederating together and all of them mutually helping and aiding one another, with intent to gain and without the knowledge and consent of the Philippine Long Distance Telephone (PLDT), did then and there willfully, unlawfully and feloniously take, steal and use the international long distance calls belonging to PLDT by conducting International Simple Resale (ISR), which 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, effectively stealing this business from PLDT while using its facilities in the estimated amount of P20,370,651.92 to the damage and prejudice of PLDT, in the said amount. 8

Prior to arraignment, petitioner filed a Motion to Quash on the ground that the factual allegations in the Amended Information do not constitute the felony of theft under Article 308 of the Revised Penal Code. He claimed, among others, that telephone calls with the use of PLDT telephone lines, whether domestic or international, belong to the persons making the call, not to PLDT. The RTC denied the Motion to Quash, and the Court of Appeals affirmed the denial of the motion. However, in its Decision now sought to be reconsidered the Court reversed the lower courts and directed the quashal of the Amended Information.

II.

Preliminarily, it should be noted that among the myriad possible crimes with which petitioner could have been charged, he was charged with theft, as defined in the RPC provision which has remained in its vestal 1930 form. Even our earlier Decision now assailed pointed out that petitioner could have been charged instead with estafa under the RPC, or with violation of the Access Devices Regulation Act of 1998. 9 Moreover, it appears that PLDT's original complaint was for "network fraud", and that the State Prosecutor had initially recommended prosecution as well under P.D. 401, a law specifically designed against tampering with the phone service operations of PLDT. Facially, it would appear that prosecution of petitioner under any of these other laws would have been eminently more appropriate than the present recourse, which utilizes the same provision used to penalize pickpockets.

But since the State has preferred to pursue this more cumbersome theory of the case, we are now belabored to analyze whether the facts as alleged in the Amended Information could somehow align with the statutory elements of theft under the RPC. cCSDTI

The crime of theft is penalized under Article 308 of the RPC. From that provision, we have long recognized the following as the elements of theft: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished without the use of violence against or intimidation of persons or force upon things. 10

In analyzing whether the crime of theft had been committed given the allegations in this case, it is against these five elements that the facts must be tested. We can agree outright that the "taking" alleged in this case was accomplished without the use of violence against or intimidation of persons or force upon things. It can also be conceded for now that the element of animo lucrandi, or intent to gain, does not bear materiality to our present discussion and its existence may be presumed for the moment.

Let us discuss the remaining elements of theft as they relate to the Amended Information, and its contentious allegation that petitioner did "unlawfully and feloniously take, steal and use the international long distance calls belonging to PLDT."

Are "international long distance calls" personal property? The assailed Decision did not believe so, but I agree with the present Resolution that they are. The Court now equates telephone calls to electrical energy. To be clear, telephone calls are not exactly alike as pure electricity. They are sound waves (created by the human voice) which are carried by electrical currents to the recipient on the other line. 11 While electricity is merely the medium through which the telephone calls are carried, it is sufficiently analogous to allow the courts to consider such calls as possessing similar physical characteristics as electricity.

The assailed Decision conceded that when a telephone call was made, "the human voice [is] converted into electronic impulses or electrical current." 12 As the Resolution now correctly points out, electricity or electronic energy may be the subject of theft, as it is personal property capable of appropriation. Since physically a telephone call is in the form of an electric signal, our jurisprudence acknowledging that electricity is personal property which may be stolen through theft is applicable.

III.

I now turn to the issue of the legal ownership of the "international long distance calls", or telephone calls in general for that matter. An examination of the physical characteristics of telephone calls is useful for our purposes. ISTHED

As earlier stated, telephone calls take on the form of electrical current, though they are distinguished from ordinary electricity in that they are augmented by the human voice which is transmitted from one phone to another. A material inquiry is how these calls are generated in the first place?

It bears significance that neither the RTC nor the Court of Appeals concluded that PLDT owns the telephone calls. Instead, they concluded that PLDT owns the telephone service, a position that is intellectually plausible, unlike the contention that PLDT owns the actual calls themselves. Yet PLDT is willing to make the highly controversial claim that it owns the phone calls, despite the absence of any reliable or neutral evidence to that effect.

PLDT argues that it does not merely transmit the telephone calls but "actually creates them". The claim should beggar belief, if only for the underlying implication that if PLDT "creates" telephone calls, such calls can come into existence without the participation of a caller, or a human voice for that matter.

Let us examine the analysis of the American law professors Benjamin, Lichtman and Shelanski in their textbook Telecommunications Law and Policy. In illustrating the "telephone system vocabulary", they offer the following discussion:

Consumers have in their homes standard equipment (like telephones) capable of encoding and receiving voice communications. Businesses have similar basic equipment. This equipment is what insiders call customer premises equipment, which is abbreviated "CPE". The Telecommunications Act of 1996 defines CPE as "equipment employed on the premises of a person (other than a carrier) to originate, route or terminate telecommunications." 47 U.S.C. §153(14). This category, as implemented by the FCC, includes not only basic telephones but also answering machines, fax machines, modems, and even private branch exchange (PBX) equipment (in which a large entity maintains, in effect, its own switchboard to various internal extensions). 13

It has been suggested that PLDT owns the phone calls because it is the entity that encodes or decodes such calls even as they originate from a human voice. Yet it is apparent from the above discussion that the device that encodes or decodes telephone calls is the CPE, more particularly the telephone receiver. It is the telephone receiver, which is in the possession of the telephone user, which generates the telephone call at the initiative of the user. Now it is known from experience that while PLDT does offer its subscribers the use of telephone receivers marked with the PLDT logo, subscribers are free to go to Abenson and purchase a telephone receiver manufactured by an entity other than PLDT, such as Sony or Bell Siemens or Panasonic. Since such is the case, it cannot be accurately said that the encoding or decoding of Philippine telephone calls is done through the exclusive use of PLDT equipment, because the telephone receivers we use are invariably purchased directly by the very same people who call or receive the phone calls. IESDCH

It likewise appears from the particular facts of this case that some, if not many of the phone calls alleged to have been stolen from PLDT were generated by calls originating not from the Philippines, but from Japan. Assuming that the telephone company exclusively generates the phone calls, those calls originating from Japan were not generated by PLDT, but by KDDI, NTT, Japan Telecom, Verizon Japan, and all the other long distance telephone service providers in Japan.

If PLDT were indeed the owner of the telephone calls, then it should be able to demonstrate by which mode did it acquire ownership under the Civil Code. Under that Code, ownership may be acquired by occupation, by intellectual creation, by law, by donation, by testate and intestate succession, by prescription, and in consequence of certain contracts, by tradition. 14 Under which mode of acquisition could PLDT deemed as acquiring ownership over the telephone calls? We can exclude outright, without need of discussion, such modes as testate and intestate succession, prescription, and tradition. Neither can the case be made that telephone calls are susceptible to intellectual creation. Donation should also be ruled out, since a donation must be accepted in writing by the donee in order to become valid, and that obviously cannot apply as to telephone calls.

Can telephone calls be acquired by "occupation"? According to Article 713, properties which are acquired by occupation are "things appropriable by nature which are without an owner, such as animals that are the object of hunting and fishing, hidden treasure and abandoned movables". It is not possible to establish a plausible analogy between telephone calls and "animals that are the object of hunting or fishing", or of "hidden treasure" and of "abandoned movables".

Is it possible that PLDT somehow acquired ownership over the phone calls by reason of law? No law vesting ownership over the phone calls to PLDT or any other local telephone service provider is in existence.

All these points demonstrate the strained reasoning behind the claim that PLDT owns the international long distance calls. Indeed, applying the traditional legal paradigm that governs the regulation of telecommunications companies, it becomes even clearer that PLDT cannot validly assert such ownership. Telephone companies have historically been regulated as common carriers. 15 The 1936 Public Service Act classifies wire or wireless communications systems as a "public service", along with other common carriers. 16 In the United States, telephone providers were expressly decreed to operate as common carriers in the Mann-Elkins Act of 1910, 17 utilizing an analogy typically akin to the regulation of railroads. 18 CAIHaE

Under the Public Service Act, a telephone communication system is classified as a "public service", not a "common carrier". That fact might seem to imply that the two phrases are mutually exclusive, despite the fact that the Public Service Act does categorize as belonging to "public service", "any common carrier, railroad, street railway, subway motor vehicle, either for freight or passenger, or both, with or without fixed route and whatever may be its classification, freight or carrier service of any class, express service, steamboat, or steamship, or steamship line, pontines, ferries and water craft, engaged in the transportation of passengers or freight or both." 19

It may be correct to say that under the Civil Code, a telephone system is not a common carrier, the civil law definition of such term limited to "persons, corporations, firms or associations engaged in the business of carrying or transporting passengers or goods or both, by land, water or air. . ." 20 Still, it cannot be denied that the weight of authorities have accepted that the traditional regulation regime of telephone service providers has been akin to common carriers, both in the United States and the Philippines. 21

The legal paradigm that treats PLDT as akin to a common carrier should alert against any notion that it is the owner of the "long distance overseas calls" alleged as having been stolen in the Amended Information. More precisely, it merely transmits these calls, owned by another, to the intended recipient. Applying the common carrier paradigm, when a public transport system is contracted to transport goods or persons to a destination, the transport company does not acquire ownership over such goods or such persons, even though it is in custody of the same for the duration of the trip. Just because the phone calls are transmitted using the facilities and services of PLDT, it does not follow that PLDT is the owner of such calls.

On this score, the distinction must be made between a telephone company such as PLDT, and a power company such as Meralco. Both companies are engaged in the business of distributing electrical energy to end-users. In the case of Meralco, it is pure electricity, while in PLDT's case, it is an electronic signal converted out of an indispensable element which is the human voice and transformed back to the original voice at the point of reception. Neither Meralco nor PLDT created the electronic energy it transmits. But in Meralco's case, it purchases the electricity from a generating company such as the National Power Corporation, and it may thus be considered as the owner of such electricity by reason of the sale. PLDT's case is different, as it does not purchase the electronic signals it transmits. These signals are created by the interaction between the human voice and the electrical current.

Indeed, the logical consequences should it be held that PLDT owns these "long distance overseas calls" are quite perilous. PLDT, as owner of these calls (or any telephone calls made for that matter), would have in theory, the right to record these calls and sell them. 22 That is a circumstance not one of us wants to contemplate. aAcDSC

At the very least, it is clear that the caller or the recipient of the phone call has a better right to assert ownership thereof than the telephone company. And critically, the subject Amended Information does not allege that the "international long distance calls" were taken without the consent of either the caller or the recipient.

I am thus hard pressed to conclude that the Amended Information as it stands was able to allege one of the essential elements of the crime of theft, that the personal property belonging to another was taken without the latter's consent. All the Amended Information alleged was that the taking was without PLDT's consent, a moot point considering that PLDT is most definitely not the owner of the phone calls.

The consensus of the majority has been to direct the amendment of the subject Amended Information to sustain the current prosecution of the petitioners without suggesting in any way that PLDT is the owner of those "international long distance calls". Said result is acceptable to me, and I concur therein.

 

Footnotes

1. Rollo, p. 728. EaCDAT

2. Id. at 57-58.

3. 15 Phil. 170 (1910).

4. 21 Phil. 553 (1911).

5. 41 Phil. 364 (1921).

6. Krivenko v. Register of Deeds, 79 Phil. 461 (1947).

7. People v. Mercado, 65 Phil. 665 (1938).

8. Id.; Duran v. Tan, 85 Phil. 476 (1950).

9. Regalado, Criminal Law Conspectus (2000 ed.), p. 520.

10. G.R. No. L-14887, January 31, 1961, 1 SCRA 380.

11. 11 N.E. 2d 403 (1937).

12. 44 Phil. 933 (1922).

13. II Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines 26 (1992 ed.).

14. Rollo, p. 902.

15. Id. at 781-783; 832-837; 872, 874-877.

16. Id. at 875-877.

17. Supra note 13.

TINGA, J., concurring:

1. Other telecommunication companies authorized to operate an IGF are Globe Telecommunications (Globe), Eastern Telecoms (ETPI), Digitel Communications (Digitel) and Bayan Telecommunications Company (Bayantel). ECcaDT

2. Supra note 1 at 251.

3. Id., at 255.

4. Id., at 252.

5. See International Bureau International Simple Resale, http://www.fcc.gov/ib/pd/pf/isr.html (Last visited, 6 September 2007).

6. Supra note 1, at 253.

7. Id. at 254.

8. Id. at 255. Emphasis not mine.

9. "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. Under the law, an access device means any card, plate, code, account number, electronic serial number, personal identification number and other telecommunication services, equipment or instrumentalities-identifier or other means of account access that can be used to obtain money, goods, services or any other thing of value or to initiate a transfer of funds other than a transfer originated solely by paper instrument. Among the prohibited acts enumerated in Section 9 of the law are the acts of obtaining money or anything of value through the use of an access device, with intent to defraud or intent to gain and fleeing thereafter: and of effecting transactions with one or more access devices issued to another person or persons to receive payment or any other thing of value. Under Section 11 of the law, conspiracy to commit access devices fraud is a crime. However, the petitioner is not charged of violation of R.A. 8484.

Significantly, a prosecution under the law shall be without prejudice to any liability for violation of any provisions of the Revised Penal Code inclusive of theft under Rule 308 of the Revised Penal Code and estafa under Article 315 of the Revised Penal Code. Thus, if an individual steals a credit card and uses the same to obtain services, he is liable of the following: theft of the credit card under Article 308 of the Revised Penal Code; violation of Republic Act No. 8484; and estafa under Article 315 (2) (a) of the Revised Penal Code with the service provider as the private complainant. The petitioner is not charged of estafa before the RTC in the Amended Information." Laurel v. Abrogar, G.R. 155706, 27 February 2006, 483 SCRA 243.

10. See e.g., People v. Bustinera, G.R. No. 148233, 8 June 2004, 431 SCRA 284, 291; citing People v. Sison, 322 SCRA 345, 363-364 (2000).

11. "When a person speaks into a telephone, the sound waves created by his voice enter the mouthpiece. An electric current carries the sound to the telephone of the person he is talking to." See How the Telephone Works, at http://atcaonline.com/phone/telworks.html.

12. Id. at 273.

13. S. Benjamin, D. Lichtman & H. Shelanski, Telecommunications Law and Policy (2001 ed.), at 613.

14. See Article 712, Civil Code.

15. See Globe Telecom v. National Telecommunication Communications, G.R. No. 143964, 26 July 2004, 435 SCRA 110, 121; citing K. MIDDLETON, R. TRAGER & B. CHAMBERLIN, THE LAW OF PUBLIC COMMUNICATION (5th ed., 2001), at 578; in turn citing 47 U.S.C. Secs. 201, 202. CTHDcS

16. See Sec. 13 (b), Public Service Act, as amended (1936).

17. See H. ZUCKMAN, R. CORN-REVERE, R. FRIEDEN, C. KENNEDY, MODERN COMMUNICATIONS LAW (1999 ed.), at 911.

18. Id., at 912.

19. See also De Guzman v. Court of Appeals, 168 SCRA 612, "So understood, the concept of 'common carrier' under Article 1732 [of the Civil Code] may be seen to coincide neatly with the notion of 'public service', under the Public Service Act (Commonwealth Act No. 1416, as amended) which at least partially supplements the law on common carriers set forth in the Civil Code."

20. See Article 1732, Civil Code.

21. See Globe Telecom v. National Telecommunication Communications, G.R. No. 143964, 26 July 2004, 435 SCRA 110, 121; citing K. MIDDLETON, R. TRAGER & B. CHAMBERLIN, THE LAW OF PUBLIC COMMUNICATION (5th ed., 2001), at 578, in turn citing 47 U.S.C. Secs. 201, 202.

22. See Art. 428, Civil Code.