*

G.R. No. 155076. February 27, 2006.

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.

Actions; Appeals; Certiorari; The general rule is that a petition

for certiorari under Rule 65 of the Rules of Court, as amended, to
nullify an order denying a motion to quash the Information is
inappropriate because the aggrieved party has a remedy of appeal
in the ordinary course of law.On the issue of whether or not the
petition for certiorari instituted by the petitioner in the CA is
proper, the general rule is that a petition for certiorari under Rule
65 of the Rules of Court, as amended, to nullify an order denying
a motion to quash the Information is inappropriate because the
aggrieved party has a remedy of appeal in the ordinary course of
law. Appeal and certiorari are mutually exclusive of each other.
The remedy of the aggrieved party is to continue with the case in
due course and, when an unfavorable judgment is rendered, assail
the order and the decision on appeal. However, if the trial court
issues the order denying the motion to quash the Amended
Information with grave abuse of discretion amounting to excess or
lack of jurisdiction, or if such order is patently erroneous, or null
and void for being contrary to the Constitution, and the remedy of
appeal would not afford adequate and expeditious relief, the
accused may resort to the extraordinary remedy of certiorari. A
special civil action for certiorari is also available where there are
special circumstances clearly demonstrating the inadequacy of an
appeal.
Criminal Law; Criminal Procedure; Information; An
Information or complaint must state explicitly and directly every
act or omission constituting an offense and must allege facts
establishing conduct that a penal statute makes criminal, and
describes the property which is the subject of the theft to advise the
accused with reasonable certainty of the accusation he is called
upon to meet at the trial and to enable him to rely on the judgment
thereunder of a subsequent prose-
_______________

* FIRST DIVISION.

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244 SUPREME COURT REPORTS ANNOTATED

Laurel vs. Abrogar

cution for the same offense.An information or complaint must

state explicitly and directly every act or omission constituting an
offense and must allege facts establishing conduct that a penal
statute makes criminal; and describes the property which is the
subject of theft to advise the accused with reasonable certainty of
the accusation he is called upon to meet at the trial and to enable
him to rely on the judgment thereunder of a subsequent
prosecution for the same offense. It must show, on its face, that if
the alleged facts are true, an offense has been committed. The
rule is rooted on the constitutional right of the accused to be
informed of the nature of the crime or cause of the accusation
against him. He cannot be convicted of an offense even if proven
unless it is alleged or necessarily included in the Information filed
against him.
Same; Same; Motions to Quash; As a general prerequisite, a
motion to quash on the ground that the Information does not
constitute the offense charged, or any offense for that matter,
should be resolved on the basis of said allegations whose truth and
veracity are hypothetically committed, and on additional facts
admitted or not denied by the prosecution.As a general
prerequisite, a motion to quash on the ground that the
Information does not constitute the offense charged, or any
offense for that matter, should be resolved on the basis of said
allegations whose truth and veracity are hypothetically
committed; and on additional facts admitted or not denied by the
prosecution. If the facts alleged in the Information do not
constitute an offense, the complaint or information should be
quashed by the court.
Same; Same; Same; Statutory Construction; The rule is that,
penal laws are to be construed strictly. Such rule is founded on the
tenderness of the law for the rights of individuals and on the plain
principle that the power of punishment is vested in Congress, not
in the judicial department.The rule is that, penal laws are to be
construed strictly. Such rule is founded on the tenderness of the
law for the rights of individuals and on the plain principle that
the power of punishment is vested in Congress, not in the judicial
department. It is Congress, not the Court, which is to define a
crime, and ordain its punishment. Due respect for the prerogative
of Congress in defining crimes/felonies constrains the Court to
refrain from a broad interpretation of penal laws where a narrow
interpretation is appropriate. The Court must take heed to
language, legislative history and purpose, in order to strictly
determine the wrath and

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Laurel vs. Abrogar

breath of the conduct the law forbids. However, when the

congressional purpose is unclear, the court must apply the rule of
lenity, that is, ambiguity concerning the ambit of criminal
statutes should be resolved in favor of lenity.
Same; Same; Same; Penal statutes may not be enlarged by
implication or intent beyond the fair meaning of the language
used; and may not be held to include offenses other than those
which are clearly described.Penal statutes may not be enlarged
by implication or intent beyond the fair meaning of the language
used; and may not be held to include offenses other than those
which are clearly described, notwithstanding that the Court may
think that Congress should have made them more comprehensive.
Words and phrases in a statute are to be construed according to
their common meaning and accepted usage.
Same; Same; Same; When interpreting a criminal statute that
does not explicitly reach the conduct in question, the Court should
not base an expansive reading on the inferences from subjective
and variable understanding.As Chief Justice John Marshall
declared, it would be dangerous, indeed, to carry the principle
that a case which is within the reason or mischief of a statute is
within its provision, so far as to punish a crime not enumerated in
the statute because it is of equal atrocity, or of kindred character
with those which are enumerated. When interpreting a criminal
statute that does not explicitly reach the conduct in question, the
Court should not base an expansive reading on inferences from
subjective and variable understanding.
Same; Theft; For one to be guilty of theft, the accused must
have an intent to steal (animus furandi) personal property,
meaning the intent to deprive another of his ownership/lawful
possession of personal property which intent is apart from and
concurrently with the general criminal intent which is an essential
element of a felony of dolo (dolus malus).For one to be guilty of
theft, the accused must have an intent to steal (animus furandi)
personal property, meaning the intent to deprive another of his
ownership/lawful possession of personal property which intent is
apart from and concurrently with the general criminal intent
which is an essential element of a felony of dolo (dolus malus). An
information or complaint for simple theft must allege the
following elements: (a) the taking of personal property; (b) the
said property belongs to another; (c) the taking be done

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246 SUPREME COURT REPORTS ANNOTATED

Laurel vs. Abrogar

with intent to gain; and (d) the taking be accomplished without

the use of violence or intimidation of person/s or force upon
things.
Same; Same; Words and Phrases; The words personal
property standing alone, covers both tangible and intangible
properties and are subject of theft under the Revised Penal Code.
The statutory definition of taking and movable property
indicates that, clearly, not all personal properties may be the
proper subjects of theft.One is apt to conclude that personal
property standing alone, covers both tangible and intangible
properties and are subject of theft under the Revised Penal Code.
But the words Personal property under the Revised Penal Code
must be considered in tandem with the word take in the law.
The statutory definition of taking and movable property
indicates that, clearly, not all personal properties may be the
proper subjects of theft. The general rule is that, only movable
properties which have physical or material existence and
susceptible of occupation by another are proper objects of theft. As
explained by Cuelo Callon: Cosa juridicamente es toda sustancia
corporal, material, susceptible de ser aprehendida que tenga un
valor cualquiera.
Same; Same; Same; According to Cuello Callon, in the context
of the Penal Code, only those movable properties which can be
taken and carried from the place they are found are proper
subjects of theft. Intangible properties such as rights and ideas are
not subject of theft because the same cannot be taken from the
place it is found and is occupied or appropriated.According to
Cuello Callon, in the context of the Penal Code, only those
movable properties which can be taken and carried from the place
they are found are proper subjects of theft. Intangible properties
such as rights and ideas are not subject of theft because the same
cannot be taken from the place it is found and is occupied or
appropriated. Solamente las cosas muebles y corporales pueden ser
objeto de hurto. La sustraccin de cosas inmuebles y la cosas
incorporales (v. gr., los derechos, las ideas) no puede integrar este
delito, pues no es posible asirlas, tomarlas, para conseguir su
apropiacin. El Codigo emplea la expresin cosas mueble en el
sentido de cosa que es susceptible de ser llevada del lugar donde se
encuentra, como dinero, joyas, ropas, etctera, asi que su concepto
no coincide por completo con el formulado por el Codigo civil (arts.
335 y 336).

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Laurel vs. Abrogar

Same; Same; Same; Movable properties under Article 308 of

the Revised Penal Code should be distinguished from the rights or
interests to which they relate. A naked right existing merely in
contemplation of law, although it may be very valuable to the
person who is entitled to exercise it, is not the subject of theft or
larceny.Movable properties under Article 308 of the Revised
Penal Code should be distinguished from the rights or interests to
which they relate. A naked right existing merely in contemplation
of law, although it may be very valuable to the person who is
entitled to exercise it, is not the subject of theft or larceny. Such
rights or interests are intangible and cannot be taken by
another. Thus, right to produce oil, good will or an interest in
business, or the right to engage in business, credit or franchise
are properties. So is the credit line represented by a credit card.
However, they are not proper subjects of theft or larceny because
they are without form or substance, the mere breath of the
Congress. On the other hand, goods, wares and merchandise of
businessmen and credit cards issued to them are movable
properties with physical and material existence and may be taken
by another; hence, proper subjects of theft.
Same; Same; Same; There is taking of personal property,
and theft is consummated when the offender unlawfully acquires
possession of personal property even if for a short time; or if such
property is under the dominion and control of the thief.There is
taking of personal property, and theft is consummated when the
offender unlawfully acquires possession of personal property even
if for a short time; or if such property is under the dominion and
control of the thief. The taker, at some particular amount, must
have obtained complete and absolute possession and control of the
property adverse to the rights of the owner or the lawful possessor
thereof. It is not necessary that the property be actually carried
away out of the physical possession of the lawful possessor or that
he should have made his escape with it. Neither asportation nor
actual manual possession of property is required. Constructive
possession of the thief of the property is enough.
Same; Same; Same; The essence of the element is the taking of
a thing out of the possession of the owner without his privity and
consent and without animus revertendi.The essence of the
element is the taking of a thing out of the possession of the owner
without his privity and consent and without animus revertendi.
Taking may be by the offenders own hands, by his use of innocent
persons without

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248 SUPREME COURT REPORTS ANNOTATED

Laurel vs. Abrogar

any felonious intent, as well as any mechanical device, such as an

access device or card, or any agency, animate or inanimate, with
intent to gain. Intent to gain includes the unlawful taking of
personal property for the purpose of deriving utility, satisfaction,
enjoyment and pleasure.
Same; Same; Same; 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 ISR of
Baynet Card Ltd. within its coverage.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.
Words and Phrases; A phreaker is one who engages in the
act of manipulating phones and illegally markets telephone
services. Unless the phone company replaces all its hardware,
phreaking would be impossible to stop.The conduct complained
of by respondent PLDT is reminiscent of phreaking (a slang
term for the action of making a telephone system to do something
that it normally should not allow by making the phone company
bend over and grab its ankles). A phreaker is one who engages
in the act of manipulating phones and illegally markets telephone
services. Unless the phone company replaces all its hardware,
phreaking would be impossible to stop. The phone companies in
North America were impelled to replace all their hardware and
adopted full digital switching system known as the Common
Channel Inter Office Signaling.

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Laurel vs. Abrogar

Phreaking occurred only during the 1960s and 1970s, decades

after the Revised Penal Code took effect.
Criminal Law; Information; Theft; The petitioner is not
charged, under the Amended Information, for theft of
telecommunication or telephone services offered by PLDT. Even if
he is, the term personal property under Article 308 of the Revised
Penal Code cannot be interpreted beyond its seams so as to include
telecommunication or telephone services or computer services for
that matter.The petitioner is not charged, under the Amended
Information, for theft of telecommunication or telephone services
offered by PLDT. Even if he is, the term personal property
under Article 308 of the Revised Penal Code cannot be interpreted
beyond its seams so as to include telecommunication or telephone
services or computer services for that matter. The word service
has a variety of meanings dependent upon the context, or the
sense in which it is used; and, in some instances, it may include a
sale. For instance, the sale of food by restaurants is usually
referred to as service, although an actual sale is involved. It may
also mean the duty or labor to be rendered by one person to
another; performance of labor for the benefit of another. In the
case of PLDT, it is to render local and international
telecommunications services and such other services as
authorized by the CPCA issued by the NTC. Even at common law,
neither time nor services may be taken and occupied or
appropriated. A service is generally not considered property and a
theft of service would not, therefore, constitute theft since there
can be no caption or asportation. Neither is the unauthorized use
of the equipment and facilities of PLDT by the petitioner theft
under the aforequoted provision of the Revised Penal Code.
Same; Same; Republic Act 8484 (Access Devices Regulation
Act of 1998); Among the prohibited acts enumerated in Section 9 of
Republic Act 8484 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.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

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250 SUPREME COURT REPORTS ANNOTATED

Laurel vs. Abrogar

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.

PETITION for review on certiorari of a decision of the

Court of Appeals.

The facts are stated in the opinion of the Court.

Salonga, Hernandez & Mendoza for petitioner.
 Angara, Abello, Concepcion, Regala & Cruz for
Philippine Long Distance Telephone Company.

CALLEJO, SR., J.:

Before us1
is a Petition for Review on Certiorari of the
Decision of the Court of Appeals (CA) in CA-G.R. SP No.
68841 affirming the Order issued by Judge Zeus C.
Abrogar, Regional Trial Court (RTC), Makati City, Branch
150, which denied the Motion to Quash (With Motion to
Defer Arraignment) in Criminal Case No. 99-2425 for
theft.
Philippine Long Distance Telephone Company (PLDT) is
the holder of a legislative franchise to render local and
international telecommunication services under Republic
Act No.

_______________

1 Penned by Associate Justice Bienvenido L. Reyes, with Associate

Justices Roberto A. Barrios and Edgardo F. Sundiam, concurring.

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VOL. 483, FEBRUARY 27, 2006 251

Laurel vs. Abrogar
2
7082. Under said law, PLDT is authorized to establish,
operate, manage, lease, maintain and purchase
telecommunication systems, including transmitting,
receiving and switching stations, for both domestic and
international calls. For this purpose, it has installed an
estimated 1.7 million telephone lines nationwide. PLDT
also offers other services as authorized by Certificates of
Public Convenience and Necessity (CPCN) duly issued by
the National Telecommunications Commission (NTC), and
operates and maintains an International Gateway Facility
(IGF). The PLDT network is thus principally composed of
the Public Switch Telephone Network (PSTN), telephone
handsets and/or telecommunications equipment used by its
subscribers, the wires and cables linking said telephone
handsets and/or telecommunications equipment, antenna,
the IGF, and other telecommunications
3
equipment which
provide interconnections.
PLDT alleges that one of the alternative calling patterns
that constitute network fraud and violate its network
integrity is that which is known as International Simple
Resale (ISR). ISR is a method of routing and completing
international long distance calls using International
Private Leased Lines (IPL), cables, antenna or air wave or
frequency, which connect directly to the local or domestic
exchange facilities of the terminating country (the country
where the call is destined). The IPL is linked to switching
equipment which is connected to a PLDT telephone
line/number. In the process, the calls bypass the IGF found
at the terminating country, or in4 some instances, even
those from the originating country.

_______________

2 AN ACT FURTHER AMENDING ACT NO. 3436, AS AMENDED, X

X X CONSOLIDATING THE TERMS AND CONDITIONS OF THE
FRANCHISE GRANTED TO [PLDT], AND EXTENDING THE SAID
FRANCHISE BY TWENTY-FIVE (25) YEARS FROM THE EXPIRATION
THEREOF X X X.
3 Rollo, pp. 129-130.
4 Id., at p. 131.

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252 SUPREME COURT REPORTS ANNOTATED

Laurel vs. Abrogar

One such alternative calling service is that offered by

Baynet Co., Ltd. (Baynet) which sells Bay Super Orient
Card phone cards to people who call their friends and
relatives in the Philippines. With said card, one is entitled
to a 27-minute call to the Philippines for about 37.03 per
minute. After dialing the ISR access number indicated in
the phone card, the ISR operator requests the subscriber to
give the PIN number also indicated in the phone card.
Once the callers identity (as purchaser of the phone card)
is confirmed, the ISR operator will then provide a
Philippine local line to the requesting caller via the IPL.
According to PLDT, calls made through the IPL never pass
the toll center of IGF operators in the Philippines. Using
the local line, the Baynet card user is able to place a call to
any point in the Philippines, provided
5
the local line is
National Direct Dial (NDD) capable.
PLDT asserts that Baynet conducts its ISR activities by
utilizing an IPL to course its incoming international long
distance calls from Japan. The IPL is linked to switching
equipment, which is then connected to PLDT telephone
lines/ numbers and equipment, with Baynet as subscriber.
Through the use of the telephone lines and other auxiliary
equipment, Baynet is able to connect an international long
distance call from Japan to any part of the Philippines, and
make it appear as a call originating from Metro Manila.
Consequently, the operator of an ISR is able to evade
payment of access, termination or bypass charges and
accounting rates, as well as compliance with the regulatory
requirements of the NTC. Thus, the ISR operator offers
international telecommunication services at a lower rate, to
the damage
6
and prejudice of legitimate operators like
PLDT.
PLDT pointed out that Baynet utilized the following
equipment for its ISR activities: lines, cables, and antennas
or equipment or device capable of transmitting air waves or

_______________

5 Id., at pp. 131, 137.

6 Id.

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VOL. 483, FEBRUARY 27, 2006 253

Laurel vs. Abrogar

frequency, such as an IPL and telephone lines and

equipment; computers or any equipment or device capable
of accepting information applying the prescribed process of
the information and supplying the result of this process;
modems or any equipment or device that enables a data
terminal equipment such as computers to communicate
with 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; and software, diskettes, tapes or equipment
7
or device
used for recording and storing information.
PLDT also discovered that Baynet 8subscribed to a total
of 123 PLDT telephone lines/numbers. Based on the Traffic
Study conducted on the volume of calls passing through
Baynets ISR network which bypass the IGF toll center,
PLDT incurred 9
an estimated monthly loss of
P10,185,325.96. Records at the Securities and Exchange
Commission (SEC) also revealed that Baynet was not
authorized to provide international or domestic long
distance telephone service in the country. The following are
its officers: Yuji Hijioka, a Japanese national (chairman of
the board of directors); Gina C. Mukaida, a Filipina (board
member and president); Luis Marcos P. Laurel, a Filipino
(board member and corporate secretary); Ricky Chan Pe, a
Filipino (board member and treasurer); and Yasushi
Ueshima, also a Japanese national (board member).
Upon complaint of PLDT against Baynet for 10network
fraud, and on the strength of two search warrants issued
by the RTC of Makati, Branch 147, National Bureau of
Investigation (NBI) agents searched its office at the 7th
Floor, SJG Building, Kalayaan Avenue, Makati City on
November 8, 1999.

_______________

7 Id., at p. 138.
8 Id., at p. 134.
9 Id., at p. 140.
10 Id., at pp. 142-146.

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254 SUPREME COURT REPORTS ANNOTATED

Laurel vs. Abrogar

Atsushi Matsuura, Nobuyoshi Miyake, Edourd D. Lacson

and Rolando J. Villegas were arrested by NBI agents while
in the act of manning the operations of Baynet. Seized in
the premises during the search were numerous equipment
and devices used in its ISR activities, such as multiplexers,
modems, computer monitors, CPUs, antenna, assorted
computer peripheral cords and microprocessors,
cables/wires, assorted PLDT statement of accounts,
parabolic antennae and voltage regulators.
State Prosecutor Ofelia L. Calo conducted
11
an inquest
investigation and issued a Resolution on January 28,
2000, finding probable cause for theft under Article 308 of12
the Revised Penal Code and Presidential Decree No. 401
against the respondents therein, including Laurel.

_______________

11 Rollo, pp. 243-246.

12 NOW, THEREFORE, I FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested in me by the Constitution as
Commander-in-Chief of all the Armed Forces of the Philippines, and
pursuant to Proclamation No. 1081 dated September 21, 1972, and
General Order No. 1 dated September 22, 1972, as amended, do hereby
order and decree that any person who installs any water, electrical or
telephone connection without previous authority from the Metropolitan
Waterworks and Sewerage System, the Manila Electric Company or the
Philippine Long Distance Telephone Company, as the case may be;
tampers and/or uses tampered water or electrical meters or jumpers or
other devices whereby water or electricity is stolen; steals or pilfers water
and/or electric meters or water, electric and/or telephone wires; knowingly
possesses stolen or pilfered water and/or electrical meters as well as stolen
or pilfered water, electrical and/or telephone wires, shall, upon conviction,
be punished by prision correccional in its minimum period or a fine
ranging from two thousand to six thousand pesos, or both. If the violation
is committed with the connivance or permission of an employee or officer
of the Metropolitan Waterworks and Sewerage System, or the Manila
Electric Company, or the Philippine Long Distance Telephone Company,
such employee or officer shall, upon conviction, be punished by a penalty
one degree lower than prision correccional in its minimum period and
forthwith be dismissed and

255

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Laurel vs. Abrogar

On February 8, 2000, State Prosecutor Calo filed an

Information with the RTC of Makati City charging
Matsuura, Miyake, Lacson and Villegas with theft under
Article 308 of the Revised Penal Code. After conducting the
requisite preliminary investigation, the State Prosecutor
filed an Amended Information impleading Laurel (a
partner in the law firm of Ingles, Laurel, Salinas, and,
until November 19, 1999, a member of the board of
directors and corporate secretary of Baynet), and the other
members of the board of directors of said corporation,
namely, Yuji Hijioka, Yasushi Ueshima, Mukaida, Lacson
and Villegas, as accused for theft under Article 308 of the
Revised Penal Code. The inculpatory portion of the
Amended Information reads:

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,
13
in the said amount.
CONTRARY TO LAW.

Accused Laurel 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 under Article 308 of the Revised Penal
Code. He

_______________

perpetually disqualified from employment in any public or private

utility or service company.
13 Rollo, pp. 57-58 (Italics supplied).

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256 SUPREME COURT REPORTS ANNOTATED

Laurel vs. Abrogar

averred that the Revised Penal Code, or any other special

penal law for that matter, does not prohibit ISR operations.
He claimed that telephone calls with the use of PLDT
telephone lines, whether domestic or international, belong
to the persons making the call, not to PLDT. He argued
that the caller merely uses the facilities of PLDT, and what
the latter owns are the telecommunication infrastructures
or facilities through which the call is made. He also
asserted that PLDT is compensated for the callers use of
its facilities by way of rental; for an outgoing overseas call,
PLDT charges the caller per minute, based on the duration
of the call. Thus, no personal property was stolen from
PLDT. According to Laurel, the P20,370,651.92 stated in
the Information, if anything, represents the rental for the
use of PLDT facilities, and not the value of anything owned
by it. Finally, he averred that the allegations in the
Amended Information are already subsumed under the
Information for violation of Presidential Decree (P.D.) No.
401 filed and pending in the Metropolitan Trial Court of
Makati City, docketed as Criminal Case No. 276766.
The prosecution, through
14
private complainant PLDT,
opposed the motion, contending that the movant
unlawfully took personal property belonging to it, as
follows: 1) intangible telephone services that are being
offered by PLDT and other telecommunication companies,
i.e., the connection and interconnection to their telephone
lines/facilities; 2) the use of those facilities over a period of
time; and 3) the revenues derived in connection with15 the
rendition of such services and the use of such facilities.
The prosecution asserted that the use of PLDTs
intangible telephone services/facilities allows electronic
voice signals to pass through the same, and ultimately to
the called partys number. It averred that such
service/facility is akin to elec-

_______________

14 Id., at pp. 67-76.

15 Id., at p. 69 (Emphasis supplied).

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tricity which, although an intangible property, may,

nevertheless, be appropriated and be the subject of theft.
Such service over a period of time for a consideration is the
business that PLDT provides to its customers, which
enables the latter to send various messages to installed
recipients. The service rendered by PLDT is akin to
merchandise which has specific value, and therefore,
capable of appropriation by another, as in this case,
through the ISR operations conducted by the movant and
his co-accused.
The prosecution further alleged that international
business calls and revenues constitute personal property
envisaged in Article 308 of the Revised Penal Code.
Moreover, the intangible telephone services/facilities
belong to PLDT and not to the movant and the other
accused, because they have no telephone services and
facilities of their own duly authorized by the NTC; thus,
the taking by the movant and his co-accused of PLDT
services was with intent to gain and without the latters
consent.
The prosecution pointed out that the accused, as well as
the movant, were paid in exchange for their illegal
appropriation and use of PLDTs telephone services and
facilities; on the other hand, the accused did not pay a
single centavo for their illegal ISR operations. Thus, the
acts of the accused were akin to the use of a jumper by a
consumer to deflect the current from the house electric
meter, thereby enabling one to steal electricity. The
prosecution emphasized that its position is fortified by the
Resolutions of the Department of Justice in PLDT v.
Tiongson, et al. (I.S. No. 97-0925) and in PAOCTF-PLDT v.
Elton John Tuason, et al. (I.S. No. 2000-370) which were
issued on August 14, 2000 finding probable cause for theft
against the respondents therein. 16
On September 14, 2001, the RTC issued an Order
denying the Motion to Quash the Amended Information.
The court declared that, although there is no law that
expressly prohib-

_______________

16 Id., at pp. 77-80.

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258 SUPREME COURT REPORTS ANNOTATED

Laurel vs. Abrogar

its the use of ISR, the facts alleged in the Amended

Information will show how the alleged crime was
committed by conducting ISR, to the damage and
prejudice of PLDT. 17
Laurel filed a Motion for Reconsideration of the Order,
alleging that international long distance calls are not
personal property, and are not capable of appropriation. He
maintained that business or revenue is not considered
personal property, and that the prosecution failed to
adduce proof of its existence and the subsequent loss of
personal property belonging to another. Citing
18
the ruling of
the Court in United States v. De Guzman, Laurel averred
that the case is not one with telephone calls which
originate with a particular caller and terminates with the
called party. He insisted that telephone calls are
considered privileged communications under the
Constitution and cannot be considered as the property of
PLDT. He further argued that there is no kinship between
telephone calls and electricity or gas, as the latter are
forms of energy which are generated and consumable, and
may be considered as personal property because of such
characteristic. On the other hand, the movant argued, the
telephone business is not a form of energy but is an
activity. 19
In its Order dated December 11, 2001, the RTC denied
the movants Motion for Reconsideration. This time, it
ruled that what was stolen from PLDT was its business
because, as alleged in the Amended Information, the
international long distance calls made through the
facilities of PLDT formed part of its business. The RTC
noted that the movant was charged with stealing the
business of PLDT. To 20 support its ruling, it cited
Strochecker v. Ramirez, where the Court ruled that
interest in business is personal property capable of
appropriation. It further declared that, through their ISR
operations, the movant and his co-accused deprived PLDT
of

_______________

17 Id., at pp. 81-86.

18 31 Phil. 494 (1915).
19 Rollo, pp. 87-94.
20 44 Phil. 933, 935 (1922).

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Laurel vs. Abrogar

fees for international long distance calls, and that the ISR
used by the movant and his co-accused was no different
from the jumper used for stealing electricity.
Laurel then filed a Petition for Certiorari with the CA,
assailing the Order of the RTC. He alleged that the
respondent judge gravely abused his discretion in denying
21
his Motion to Quash the Amended Information. As
gleaned from the material averments of the amended
information, he was charged with stealing the
international long distance calls belonging to PLDT, not its
business. Moreover, the RTC failed to distinguish between
the business of PLDT (providing services for international
long distance calls) and the revenues derived therefrom. He
opined that a business or its revenues cannot be
considered as personal property under Article 308 of the
Revised Penal Code, since a business is (1) a commercial
or mercantile activity customarily engaged in as a means of
livelihood and typically involving some independence of
judgment and power of decision; (2) a commercial or
industrial enterprise; and (3) refers to transactions,
dealings or intercourse of any nature. On the other hand,
the term revenue is defined as the income that comes
back from an investment (as in real or personal property);
the annual or periodical rents, profits, interests,
22
or issues
of any species of real or personal property.
Laurel further posited that an electric companys
business is the production and distribution of electricity; a
gas companys business is the production and/or
distribution of gas (as fuel); while a water companys
business is the production and distribution of potable
water. He argued that the business in all these cases is
the commercial activity, while the goods and merchandise
are the products of such activity. Thus, in prosecutions for
theft of certain forms of energy, it is the electricity or gas
which is alleged to be stolen and not the business of
providing electricity or gas. However, since a

_______________

21 CA Rollo, p. 6.
22 Id., at pp. 9-11.

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260 SUPREME COURT REPORTS ANNOTATED

Laurel vs. Abrogar

telephone company does not produce any energy, goods or

merchandise and merely renders a service or, in the words
of PLDT, the connection and interconnection to their
telephone lines/facilities, such service cannot be the
subject of theft
23
as defined in Article 308 of the Revised
Penal Code.
He further declared that to categorize business as
personal property under Article 308 of the Revised Penal
Code would lead to absurd consequences; in prosecutions
for theft of gas, electricity or water, it would then be
permissible to allege in the Information that it is the gas
business, the electric business or the water business which
has been stolen, and24
no longer the merchandise produced
by such enterprise.
Laurel further cited the Resolution
25
of the Secretary of
Justice in Piltel v. Mendoza, where it was ruled that the
Revised Penal Code, legislated as it was before present
technological advances were even conceived, is not
adequate to address the novel means of stealing airwaves
or airtime. In said resolution, it was noted that the
inadequacy prompted the filing of Senate Bill 2379 (sic)
entitled The Anti-Telecommunications Fraud of 1997 to
deter cloning of cellular phones and other forms of
communications fraud. The said bill aims to protect in
number (ESN) (sic) or Capcode, mobile identification
number (MIN), electronic-international mobile equipment
identity (EMEI/IMEI), or subscriber identity module and
any attempt to duplicate the data on another cellular
phone without the consent of a public telecommunications
26
entity would be punishable by law. Thus, Laurel
 26
entity would be punishable by law. Thus, Laurel
concluded, there is no crime if there is no law punishing
the crime.
On August 30, 2002, 27
the CA rendered judgment
dismissing the petition. The appellate court ruled that a
petition for

_______________

23 Id.
24 Id.
25 Resolution No. 149, Series of 1999 dated April 16, 1999 (I.S. No. 96-
3884), Rollo, pp. 95-97.
26 Id.
27 Id., at pp. 32-47.

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VOL. 483, FEBRUARY 27, 2006 261

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certiorari under Rule 65 of the Rules of Court was not the

proper remedy of the petitioner. On the merits of the
petition, it held that while business is generally an activity
which is abstract and intangible in form, it is nevertheless
considered property under Article 308 of the Revised
Penal Code. The CA opined that PLDTs business of
providing international calls is personal property which
may be 28
the object of theft, and cited United States v.
Carlos to support such29conclusion. The tribunal also cited
Strochecker v. Ramirez, where this Court ruled that one-
half interest in a days business is personal property under
Section 2 of Act No. 3952, otherwise known as the Bulk
Sales Law. The appellate court held that the operations of
the ISR are not subsumed in the charge for violation of
P.D. No. 401.
Laurel, now the petitioner, assails the decision of the
CA, contending that

THE COURT OF APPEALS ERRED IN RULING THAT THE

PERSONAL PROPERTY ALLEGEDLY STOLEN PER THE
INFORMATION IS NOT THE INTERNATIONAL LONG
DISTANCE CALLS BUT THE BUSINESS OF PLDT.
THE COURT OF APPEALS ERRED IN RULING THAT THE
TERM BUSINESS IS PERSONAL PROPERTY WITHIN 30THE
MEANING OF ART. 308 OF THE REVISED PENAL CODE.
Petitioner avers that the petition for a writ of certiorari
may be filed to nullify an interlocutory order of the trial
court which was issued with grave abuse of discretion
amounting to excess or lack of jurisdiction. In support of
his petition before the Court, he reiterates the arguments
in his pleadings filed before the CA. He further claims that
while the right to carry on a business or an interest or
participation in business is considered property under the
New Civil Code, the term business, however, is not. He
asserts that the Philippine

_______________

28 21 Phil. 553 (1911).

29 Supra note 20, at p. 935.
30 Rollo, pp. 18-19.

262

262 SUPREME COURT REPORTS ANNOTATED

Laurel vs. Abrogar

Legislature, which approved the Revised Penal Code way

back in January 1, 1932, could not have contemplated to
include international long distance calls and business as
personal property under Article 308 thereof.
In its comment on the petition, the Office of the Solicitor
General (OSG) maintains that the amended information
clearly states all the essential elements of the crime of
theft. Petitioners interpretation as to whether an
international long distance call is personal property
under the law is inconsequential, as a reading of the
amended information readily reveals that specific acts and
circumstances were alleged charging Baynet, through its
officers, including petitioner, of feloniously taking, stealing
and illegally using international long distance calls
belonging to respondent PLDT by conducting ISR
operations, thus, routing and completing international
long distance calls using lines, cables, antenna and/or
airwave frequency which connect directly to the local or
domestic exchange facilities of the country where the call is
destined. The OSG maintains that the international long
distance calls alleged in the amended information should
be construed to mean business of PLDT, which, while
abstract and intangible in 31form, is personal property
susceptible of appropriation. The OSG avers that what
was stolen by petitioner and his co-accused is the business
of PLDT providing international long distance calls 32which,
though intangible, is personal property of the PLDT.
For its part, respondent PLDT asserts that personal
property under Article 308 of the Revised Penal Code
comprehends intangible property such as electricity and
gas which are valuable articles for merchandise, brought
and sold like other personal property, and are capable of
appropriation. It insists that the business of international
calls and revenues constitute personal property because the
same are valuable articles of merchandise. The respondent
reiterates that inter-

_______________

31 Id., at p. 689.
32 Id., at p. 691.

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Laurel vs. Abrogar

national calls involve (a) the intangible telephone services

that are being offered by it, that is, the connection and
interconnection to the telephone network, lines or facilities;
(b) the use of its telephone network, lines or facilities over a
period of time;
33
and (c) the income derived in connection
therewith.
PLDT further posits that business revenues or the
income derived in connection with the rendition of such
services and the use of its telephone network, lines or
facilities are personal properties under Article 308 of the
Revised Penal Code; so is the use of said telephone
services/telephone network, lines or facilities which allow
electronic voice signals to pass through the same and
ultimately to the called partys number. It is akin to
electricity which, though intangible property, may
nevertheless be appropriated and can be the object of theft.
The use of respondent PLDTs telephone network, lines, or
facilities over a period of time for consideration is the
business that it provides to its customers, which enables
the latter to send various messages to intended recipients.
Such use over a period of time is akin to merchandise
which has value and, therefore, can be appropriated by
another. According to respondent PLDT, this is what
actually happened when petitioner Laurel and 34
the other
accused below conducted illegal ISR operations.
The petition is meritorious.
 The issues for resolution are as follows: (a) whether or
not the petition for certiorari is the proper remedy of the
petitioner in the Court of Appeals; (b) whether or not
international telephone calls using Bay Super Orient Cards
through the telecommunication services provided by PLDT
for such calls, or, in short, PLDTs business of providing
said telecommunication services, are proper subjects of
theft under Article 308 of the Revised Penal Code; and (c)
whether or not the trial court committed grave abuse of
discretion amounting to

_______________

33 Id., at pp. 669-670.

34 Rollo, p. 670.

264

264 SUPREME COURT REPORTS ANNOTATED

Laurel vs. Abrogar

excess or lack of jurisdiction in denying the motion of the

petitioner to quash the amended information.
On the issue of whether or not the petition for certiorari
instituted by the petitioner in the CA is proper, the general
rule is that a petition for certiorari under Rule 65 of the
Rules of Court, as amended, to nullify an order denying a
motion to quash the Information is inappropriate because
the aggrieved party has a remedy of appeal in the ordinary
course of law. Appeal and certiorari are mutually exclusive
of each other. The remedy of the aggrieved party is to
continue with the case in due course and, when an
unfavorable judgment is rendered, assail the order and the
decision on appeal. However, if the trial court issues the
order denying the motion to quash the Amended
Information with grave abuse of discretion amounting to
excess or lack of jurisdiction, or if such order is patently
erroneous, or null and void for being contrary to the
Constitution, and the remedy of appeal would not afford
adequate and expeditious relief, the accused35
may resort to
the extraordinary remedy of certiorari. A special civil
action for certiorari is also available where there are
special circumstances clearly demonstrating the
inadequacy of an appeal. As this 36 Court held in Bristol
Myers Squibb (Phils.), Inc. v. Viloria:

Nonetheless, the settled rule is that a writ of certiorari may be

granted in cases where, despite availability of appeal after trial,
there is at least a prima facie showing on the face of the petition
and its annexes that: (a) the trial court issued the order with
grave abuse of discretion amounting to lack of or in excess of
jurisdiction; (b) appeal would not prove to be a speedy and
adequate remedy; (c) where the order is a patent nullity; (d) the
decision in the present case will arrest future litigations; and (e)
for certain considerations such as public welfare and public
37
policy.

_______________

35 Madarang v. Court of Appeals, G.R. No. 143044, July 14, 2005, 463
SCRA 318, 327 (2005).
36 G.R. No. 148156, September 27, 2004, 439 SCRA 202 (2004).
37 Id., at p. 211.

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In his petition for certiorari in the CA, petitioner averred

that the trial court committed grave abuse of its discretion
amounting to excess or lack of jurisdiction when it denied
his motion to quash the Amended Information despite his
claim that the material allegations in the Amended
Information do not charge theft under Article 308 of the
Revised Penal Code, or any offense for that matter. By so
doing, the trial court deprived him of his constitutional
right to be informed of the nature of the charge against
him. He further averred that the order of the trial court is
contrary to the constitution and is, thus, null and void. He
insists that he should not be compelled to undergo the
rigors and tribulations of a protracted trial and incur
expenses to defend himself against a nonexistent charge.
Petitioner is correct.
An information or complaint must state explicitly38 and
directly every act or omission constituting an offense and
must allege facts39 establishing conduct that a penal statute
makes criminal; and describes the property which is the
subject of theft to advise the accused with reasonable
certainty of the accusation he is called upon to meet at the
trial and to enable him to rely on the judgment thereunder
40
of a subsequent prosecution for the same offense. It must
show, on its face, that if the alleged facts are true, an
offense has been committed. The rule is rooted on the
constitutional right of the accused to be informed of the
nature of the crime or cause of the accusation against him.
He cannot be convicted of an offense even if proven unless
it is alleged or necessarily included in the Information filed
against him.
As a general prerequisite, a motion to quash on the
ground that the Information does not constitute the offense
charged,

_______________

38 Section 9, Rule 110 of the Revised Rules of Criminal Procedure.

39 People v. Weg, 450 N.Y.S.2d 957 (1982).
40 Clines v. Commonwealth, 298 S.W. 1107 (1927).

266

266 SUPREME COURT REPORTS ANNOTATED

Laurel vs. Abrogar

or any offense for that matter, should be resolved on the

basis of said allegations whose
41
truth and veracity are
hypothetically committed; and on additional
42
facts
admitted or not denied by the prosecution. If the facts
alleged in the Information do not constitute an offense, the
43
complaint or information should be quashed by the court.
We have reviewed the Amended Information and find
that, as mentioned by the petitioner, it does not contain
material allegations charging the petitioner of theft of
personal property under Article 308 of the Revised Penal
Code. It, thus, behooved the trial court to quash the
Amended Information. The Order of the trial court denying
the motion of the petitioner to quash the Amended
Information is a patent nullity.
On the second issue, we find and so hold that the
international telephone calls placed by Bay Super Orient
Card holders, 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. The construction by the respondents of Article 308 of
the said Code to include, within its coverage, the aforesaid
international telephone calls, telecommunication services
and business is contrary to the letter and intent of the law.
The rule is that, penal laws are to be construed strictly.
Such rule is founded on the tenderness of the law for the
rights of individuals and on the plain principle that the
power of punishment is vested in Congress, not in the
judicial department. It is Congress, not the Court,
44
which is
to define a crime, and ordain its punishment. Due respect
for the prerogative of Congress in defining crimes/felonies
constrains the

_______________

41 Santiago v. Garchitorena, G.R. No. 109266, December 2, 1993, 228

SCRA 214.
42 Garcia v. Court of Appeals, 334 Phil. 621, 634; 266 SCRA 678 (1997);
People v. Navarro, 75 Phil. 516, 518 (1945).
43 Section 3(a), Rule 117 of the 2000 Rules of Criminal Procedure.
44 United States v. Wiltberger, 18 U.S. 76 (1820).

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Court to refrain from a broad interpretation of penal laws

where a narrow interpretation is appropriate. The Court
must take heed to language, legislative history and
purpose, in order to strictly determine
45
the wrath and
breath of the conduct the law forbids. However, when the
congressional purpose is unclear, the court must apply the
rule of lenity, that is, ambiguity concerning the ambit 46
of
criminal statutes should be resolved in favor of lenity.
Penal statutes may not be enlarged by implication or
intent beyond the fair meaning of the language used; and
may not be held to include offenses other than those which
are clearly described, notwithstanding that the Court may
think that Congress
47
should have made them more
comprehensive. Words and phrases in a statute are to be
construed according to their common meaning and
accepted usage.
As Chief Justice John Marshall declared, it would be
dangerous, indeed, to carry the principle that a case which
is within the reason or mischief of a statute is within its
provision, so far as to punish a crime not enumerated in
the statute because it is of equal atrocity, or of48kindred
character with those which are enumerated. When
interpreting a criminal statute that does not explicitly
reach the conduct in question, the Court should not base an
expansive reading on 49 inferences from subjective and
variable understanding.
Article 308 of the Revised Penal Code defines theft as
follows:

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 latters consent.

_______________

45 Dowling v. United States, 473 U.S. 207 (1985).

46 Liparota v. United States, 105 S. Ct. 2084 (1985).
47 Kelley v. State, 119 N.E.2d 322 (1954); State v. McGraw, 480 N.E.2d
552 (1985).
48 United States v. Wiltberger, supra note 44.
49 Dowling v. United States, supra note 45.

268

268 SUPREME COURT REPORTS ANNOTATED

Laurel vs. Abrogar

The provision was taken from Article 530 of the Spanish

Penal Code which reads:

1. Los que con nimo de lucrarse, y sin violencia o intimidacin en

las personas ni fuerza en las cosas,
50
toman las cosas muebles
ajenas sin la voluntad de su dueo.

For one to be guilty of theft, the accused must have an

intent to steal (animus furandi) personal property,
meaning the intent to deprive another of his
ownership/lawful possession of personal property which
intent is apart from and concurrently with the general
criminal intent which is an essential element of a felony of
dolo (dolus malus).
An information or complaint for simple theft must allege
the following elements: (a) the taking of personal property;
(b) the said property belongs to another; (c) the taking be
done with intent to gain; and (d) the taking be
accomplished without the use51of violence or intimidation of
person/s or force upon things.
One is apt to conclude that personal property standing
alone, covers both tangible and intangible properties and
are subject of theft under the Revised Penal Code. But the
words Personal property under the Revised Penal Code
must be considered in tandem with the word take in the
law. The statutory definition of taking and movable
property indi-

_______________
 50 Viada, CODIGO PENAL REFORMADO DE 1870, CONCORDADO Y
COMENTADO, 219.

The felony has the following elements:

(1) Apoderamiento de una cosa mueble; (2) Que la cosa mueble sea ajena; (3) Que
el apoderamiento se verifique con intencin de lucro; (4) Que se tome la cosa sin la
voluntad de su dueo; (5) Que se realice el apoderamiento de la cosa sin violencia
intimidacin en las personas ni fuerza en las cosas (Viada, 220-221).

51 People v. Sison, 379 Phil. 363, 384; 322 SCRA 345 (2000); People v.
Bustinera, G.R. No. 148233, June 8, 2004, 431 SCRA 284, 291.

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VOL. 483, FEBRUARY 27, 2006 269

Laurel vs. Abrogar

cates that, clearly, not all personal properties may be the

proper subjects of theft. The general rule is that, only
movable properties which have physical or material
existence and susceptible52
of occupation by another are
proper objects of theft. As explained by Cuelo Callon:
Cosa juridicamente es toda sustancia corporal, material,
susceptible 53de ser aprehendida que tenga un valor
cualquiera.
According to Cuello Callon, in the context of the Penal
Code, only those movable properties which can be taken
and carried from the place they are found are proper
subjects of theft. Intangible properties such as rights and
ideas are not subject of theft because the same cannot be
taken from the place it is found and is occupied or
appropriated.

Solamente las cosas muebles y corporales pueden ser objeto de

hurto. La sustraccin de cosas inmuebles y la cosas incorporales
(v. gr., los derechos, las ideas) no puede integrar este delito, pues
no es posible asirlas, tomarlas, para conseguir su apropiacin. El
Codigo emplea la expresin cosas mueble en el sentido de cosa
que es susceptible de ser llevada del lugar donde se encuentra,
como dinero, joyas, ropas, etctera, asi que su concepto no coincide
por completo
54
con el formulado por el Codigo civil (arts. 335 y
336).

Thus, movable properties under Article 308 of the Revised

Penal Code should be distinguished from the rights or
interests to which they relate. A naked right existing
merely in contemplation of law, although it may be very
valuable to the person who is55entitled to exercise it, is not
the subject of theft or larceny. Such rights or interests are
intangible and cannot be taken by another. Thus, right to
produce oil, good will or an interest in business, or the right
to engage in business, credit or franchise are properties. So
is the credit line represented by a credit card. However,
they are not proper subjects

_______________

52 Cuello Callon, Derecho Penal, Tomo II, p. 724.

53 Id.
54 See note 52, p. 725 (Italics supplied).
55 36 C.J.S. 737.

270

270 SUPREME COURT REPORTS ANNOTATED

Laurel vs. Abrogar

of theft or larceny because they are without form or

substance, the mere breath of the Congress. On the other
hand, goods, wares and merchandise of businessmen and
credit cards issued to them are movable properties with
physical and material existence and may be taken by
another; hence, proper subjects of theft.
There is taking of personal property, and theft is
consummated when the offender unlawfully acquires
possession of personal property even if for a short time; or
if such property is under the dominion and control of the
thief. The taker, at some particular amount, must have
obtained complete and absolute possession and control of
the property adverse to 56the rights of the owner or the
lawful possessor thereof. It is not necessary that the
property be actually carried away out of the physical
possession of the lawful possessor
57
or that he should have
made his escape with it. Neither asportation nor actual
manual possession of property is required. Constructive
58
possession of the thief of the property is enough.
The essence of the element is the taking of a thing out of
the possession of the owner without59
his privity and consent
and without animus revertendi.
Taking may be by the offenders own hands, by his use of
innocent persons without any felonious intent, as well as
any mechanical device, such as an access device or card, or
any agency, animate or inanimate, with intent to gain.
Intent to gain includes the unlawful taking of personal
property for the purpose 60
of deriving utility, satisfaction,
enjoyment and pleasure.
_______________

56 People v. Ashworth, 222 N.Y.S. 24 (1927).

57 People v. Salvilla, G.R. No. 86163, April 26, 1990, 184 SCRA 671, 677
(1990).
58 Harris v. State, 14 S.W. 390 (1890).
59 Woods v. People, 78 N.E. 607 (1906).
60 Villacorta v. Insurance Commission, G.R. No. 54171, October 28,
1980, 100 SCRA 467.

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We agree with the contention of the respondents that

intangible properties such as electrical energy and gas are
proper subjects of theft. The reason for this is that, 61
as
explained by this Court in United
62
States v. Carlos and
United States v. Tambunting, based on decisions of the
Supreme Court of Spain and of the courts in England and
the United States of America, gas or electricity are capable
of appropriation by another other than the owner. Gas and
electrical energy may be taken, 63carried away and
appropriated. In People v. Menagas, the Illinois State
Supreme Court declared that electricity, like gas, may be
seen and felt. Electricity, the same as gas, is a valuable
article of merchandise, bought and sold like other personal
property and is capable of appropriation by another. It is a
valuable article of merchandise, bought and sold like other
personal property, susceptible of being severed from a mass
or larger quantity and of being transported from place to
place. Electrical energy may, likewise, be taken and carried
away. It is a valuable commodity, bought and sold like
other personal property. It may be transported from place to
place. There is nothing in the nature of gas used for
illuminating purposes which renders it incapable of being
feloniously taken and carried away.
In People
64
ex rel Brush Electric Illuminating Co. v.
Wemple, the Court of Appeals of New York held that
electric energy is manufactured and sold in determinate
quantities at a fixed price, precisely as are coal, kerosene
oil, and gas. It may be conveyed to the premises of the
consumer, stored in cells of different capacity known as an
accumulator; or it may be sent through a wire, just as gas
or oil may be transported either in a close tank or forced
through a pipe. Having reached the premises of the
consumer, it may be used in any way he may desire, being,
like illuminating gas, capable of

_______________

61 Supra note 28.

62 41 Phil. 364 (1921).
63 11 N.E.2d 403 (1937).
64 29 N.E. 808 (1892) (Emphasis supplied).

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272 SUPREME COURT REPORTS ANNOTATED

Laurel vs. Abrogar

being transformed either into heat, light, or65 power, at the

option of the purchaser. In Woods v. People, the Supreme
Court of Illinois declared that there is nothing in the
nature of gas used for illuminating purposes which renders
it incapable of being feloniously taken and carried away. It
is a valuable article of merchandise, bought and sold like
other personal property, susceptible of being severed from a
mass or larger quantity and of being transported from place
to place.
Gas and electrical energy should not be equated with
business or services provided by business entrepreneurs to
the public. Business does not have an exact definition.
Business is referred as that which occupies the time,
attention and labor of men for the purpose of livelihood or
profit. It embraces
66
everything that which a person can be
employed. Business may also mean employment,
occupation or profession. Business is also defined as a 67
commercial activity for gain benefit or advantage.
Business, like services in business, although are properties,
are not proper subjects of theft under the Revised Penal
Code because the same cannot be taken or occupied. If it
were otherwise, as claimed by the respondents, there would
be no juridical difference between the taking of the
business of a person or the services provided by him for
gain, vis--vis, the taking of goods, wares68or merchandise,
or equipment comprising his business. If it was its
intention to include business as personal property under
Article 308 of the Revised Penal Code, the Philippine
Legislature should have spoken in language that is clear
and definite: that business is personal 69
property under
Article 308 of the Revised Penal Code.

_______________
 65 Supra note 59 (Emphasis supplied).
66 Doggett v. Burnet, 65 F.2d 191 (1933).
67 Blacks Law Dictionary, 5th ed., p. 179; Union League Club v.
Johnson, 108 P.2d 487, 490 (1940).
68 United States v. McCraken, 19 C.M.R. 876 (1955).
69 People v. Tansey, 593 N.Y.S. 2d 426 (1992).

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Laurel vs. Abrogar

We agree with the contention of the petitioner that, as

gleaned from the material averments of the Amended
Information, he is charged of stealing the international
long distance calls belonging to PLDT and the use thereof,
through the ISR. Contrary to the claims of the OSG and
respondent PLDT, the petitioner is not charged of stealing
P20,370,651.95 from said respondent. Said amount of
P20,370,651.95 alleged in the Amended Information is the
aggregate amount of access, transmission or termination
charges which the PLDT expected from the international
long distance calls of the callers with the use of Baynet
Super Orient Cards sold by Baynet Co. Ltd.
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 nonexistent. 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 70be
extended beyond the fair scope of the statutory mandate.
Respondent PLDT does not acquire possession, much
less, ownership of the voices of the telephone callers or of
the electronic voice signals or current emanating from said
calls. The human voice and the electronic voice signals or
current caused thereby are intangible and not susceptible
of posses-

_______________

70 People v. Case, 42 N.Y.S. 2d 101.

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274 SUPREME COURT REPORTS ANNOTATED

Laurel vs. Abrogar

sion, occupation or appropriation by the respondent PLDT

or even the petitioner, for that matter. PLDT merely
transmits the electronic voice signals through its facilities
and equipment. Baynet Card Ltd., through its operator,
merely intercepts, reroutes the calls and passes them to its
toll center. Indeed, the parties called receive the telephone
calls from Japan.
In this modern age of technology, telecommunications
systems have become so tightly merged with computer
systems that it is difficult to know where one starts and the
other finishes. The telephone set is highly computerized
and allows 71
computers to communicate across long
distances. The instrumentality at issue in this case is not
merely a telephone but a telephone inexplicably linked to a
computerized communications system with the use of
Baynet Cards sold by the Baynet Card Ltd. The corporation
uses computers,
72
modems and software, among others, for
its ISR.
The conduct complained of by respondent PLDT is
reminiscent of phreaking (a slang term for the action of
making a telephone system to do something that it
normally should not allow by making the phone company
bend over and grab its ankles). A phreaker is one who
engages in the act of manipulating
73
phones and illegally
markets telephone services. Unless the phone company
replaces all its hardware, phreaking would be impossible to
stop. The phone companies in North America were impelled
to replace all their hardware and adopted full digital
switching system known as the Common Channel Inter
Office Signaling. Phreaking occurred only during the 1960s
and 1970s, decades after the Revised Penal Code took
effect.
The petitioner is not charged, under the Amended
Information, for theft of telecommunication or telephone
services
_______________

71 Commonwealth v. Gerulis, 616 A.2d 686 (1992).

72 Rollo, p. 138.
73 Commonwealth v. Gerulis, supra note 71.

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VOL. 483, FEBRUARY 27, 2006 275

Laurel vs. Abrogar

offered by PLDT. Even if he is, the term personal

property under Article 308 of the Revised Penal Code
cannot be interpreted beyond its seams so as to include
telecommunication or telephone services or computer
services for that matter. The word service has a variety of
meanings dependent upon the context, or the sense in
which it is used; and, in some instances, it may include a
sale. For instance, the sale of food by restaurants is usually
referred 74to as service, although an actual sale is
involved. It may also mean the duty or labor to be
rendered by one person75 to another; performance of labor for
the benefit of another. In the case of PLDT, it is to render
local and international telecommunications services and
such other services as authorized by the CPCA issued by
the NTC. Even at common law, neither time76 nor services
may be taken and occupied or appropriated. A service is
generally not considered property and a theft of service
would not, therefore, constitute
77
theft since there can be no
caption or asportation. Neither is the unauthorized use of
the equipment and facilities of PLDT by the petitioner theft
under78 the aforequoted provision of the Revised Penal
Code.
If it was the intent of the Philippine Legislature, in
1930, to include services to be the subject of theft, it should
have incorporated the same in Article 308 of the Revised
Penal Code. The Legislature did not. In fact, the Revised
Penal Code does not even contain a definition of services.
If taking of telecommunication services or the business
of a person,
79
is to be proscribed, it must be by special
statute or

_______________

74 Central Power and Light Co. v. State, 165 S.W. 2d 920 (1942).
75 Blacks Law Dictionary, p. 1227.
76 Lund v. Commonwealth, 232 S.E.2d 745 (1977); 50 Am. Jur. 2d
Larceny, p. 83.
 77 Imbau, Thomson, Moenssens, Criminal Law, Second Edition, p.
6247, 2 Wharton Criminal Law, Prodded, 604:369.
78 Id., at p. 746; Commonwealth v. Rivera, 583 N.E.2d 867 (1991).
79 People v. Tansey, supra note 69.

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276 SUPREME COURT REPORTS ANNOTATED

Laurel vs. Abrogar

an amendment of the Revised Penal Code. Several states in

the United States, such as New York, New Jersey,
California and Virginia, realized that their criminal
statutes did not contain any provisions penalizing the theft
of services and passed laws defining and penalizing theft of
telephone and computer services. The Pennsylvania
Criminal Statute now penalizes theft of services, thus:

(a) Acquisition of services.

(1) A person is guilty of theft if he intentionally obtains
services for himself or for another which he knows are available
only for compensation, by deception or threat, by altering or
tampering with the public utility meter or measuring device by
which such services are delivered or by causing or permitting
such altering or tampering, by making or maintaining any
unauthorized connection, whether physically, electrically or
inductively, to a distribution or transmission line, by attaching or
maintaining the attachment of any unauthorized device to any
cable, wire or other component of an electric, telephone or cable
television system or to a television receiving set connected to a
cable television system, by making or maintaining any
unauthorized modification or alteration to any device installed by
a cable television system, or by false token or other trick or
artifice to avoid payment for the service.

In the State of Illinois in the United States of America,

theft of labor or services or use of property is penalized:

(a) A person commits theft when he obtains the temporary use of

property, labor or services of another which are available only for
hire, by means of threat or deception or knowing that such use is
without the consent of the person providing the property, labor or
services.

In 1980, the drafters of the Model Penal Code in the United

States of America arrived at the conclusion that labor and
services, including professional services, have not been
included within the traditional scope of the term property
in ordinary theft statutes. Hence, they decided to
incorporate in the Code Section 223.7, which defines and
penalizes theft of services, thus:
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VOL. 483, FEBRUARY 27, 2006 277

Laurel vs. Abrogar

(1) A person is guilty of theft if he purposely obtains services

which he knows are available only for compensation, by deception
or threat, or by false token or other means to avoid payment for
the service. Services include labor, professional service,
transportation, telephone or other public service, accommodation
in hotels, restaurants or elsewhere, admission to exhibitions, use
of vehicles or other movable property. Where compensation for
service is ordinarily paid immediately upon the rendering of such
service, as in the case of hotels and restaurants, refusal to pay or
absconding without payment or offer to pay gives rise to a
presumption that the service was obtained by deception as to
intention to pay; (2) A person commits theft if, having control over
the disposition of services of others, to which he is not entitled, he
knowingly diverts such services to his own benefit or to the
benefit of another not entitled thereto.

Interestingly, after the State Supreme Court of Virginia80

promulgated its decision in Lund v. Commonwealth,
declaring that neither time nor services may be taken and
carried away and are not proper subjects of larceny, the
General Assembly of Virginia enacted Code No. 18-2-98
which reads:

Computer time or services or data processing services or

information or data stored in connection therewith is hereby
defined to be property which may be the subject of larceny under
18.2-95 or 18.2-96, or embezzlement under 18.2-111, or false
pretenses under 18.2-178.

In the State of Alabama, Section 13A-8-10(a)(1) of the

Penal Code of Alabama of 1975 penalizes theft of services:
A person commits the crime of theft of services if: (a) He
intentionally obtains services known by him to be available
only for compensation by deception, threat, false token or
other means to avoid payment for the services . . .
In the Philippines, Congress has not amended the
Revised Penal Code to include theft of services or theft of
business as

_______________
 80 See note 76.

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278 SUPREME COURT REPORTS ANNOTATED

Laurel vs. Abrogar

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.
Section 33 of Republic Act No. 8792, Electronic
Commerce Act of 2000 provides:

Sec. 33. Penalties.The following Acts shall be penalized by fine

and/or imprisonment, as follows:
a) Hacking or cracking which refers to unauthorized access into
or interference in a computer system/server or information and

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 VOL. 483, FEBRUARY 27, 2006 279
Laurel vs. Abrogar

communication system; or any access in order to corrupt, alter,

steal, or destroy using a computer or other similar information
and communication devices, without the knowledge and consent
of the owner of the computer or information and communications
system, including the introduction of computer viruses and the
like, resulting on the corruption, destruction, alteration, theft or
loss of electronic data messages or electronic documents shall be
punished by a minimum fine of One hundred thousand pesos
(P100,000.00) and a maximum commensurate to the damage
incurred and a mandatory imprisonment of six (6) months to
three (3) years.

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.

Ynares-Santiago and Austria-Martinez, JJ., concur.

Panganiban (C.J., Chairperson), No part. Former
counsel of a party.
Chico-Nazario, J., On Leave.

Petition granted, orders reversed and set aside.

Note.The elements of theft are: (1) personal property

of another person must be taken without the latters
consent; (2) the act of taking the personal property of
another must be done without the use of violence against or
intimidation of persons nor force upon things, and (3) there
must be an intention to gain from the taking of another
persons personal property. (Lucas vs. Court of Appeals, 389
SCRA 749 [2002])

o0o

280

280 SUPREME COURT REPORTS ANNOTATED

Rivera vs. David
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