Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. Nos. L-58674-77 July 11, 1990

PEOPLE OF THE PHILIPPINES, petitioner, vs.HON. DOMINGO PANIS, Presiding Judge of the Court of First Instance of Zambales & Olongapo City, Branch III and SERAPIO ABUG, respondents.

CRUZ, J:The basic issue in this case is the correct interpretation of Article 13(b) of P.D. 442, otherwise known as the Labor Code, reading as follows:

(b) Recruitment and placement' refers to any act of canvassing, enlisting, contracting, transporting, hiring, or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not: Provided, That any person or entity which, in any manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement.

Four informations were filed on January 9, 1981, in the Court of First Instance of Zambales and Olongapo City alleging that Serapio Abug, private respondent herein, "without first securing a license from the Ministry of Labor as a holder of authority to operate a fee-charging employment agency, did then and there wilfully, unlawfully and criminally operate a private fee charging employment agency by charging fees and expenses (from) and promising employment in Saudi Arabia" to four separate individuals named therein, in violation of Article 16 in relation to Article 39 of the Labor Code. 1Abug filed a motion to quash on the ground that the informations did not charge an offense because he was accused of illegally recruiting only one person in each of the four informations. Under the proviso in Article 13(b), he claimed, there would be illegal recruitment only "whenever two or more persons are in any manner promised or offered any employment for a fee. " 2Denied at first, the motion was reconsidered and finally granted in the Orders of the trial court dated June 24 and September 17, 1981. The prosecution is now before us on certiorari. 3The posture of the petitioner is that the private respondent is being prosecuted under Article 39 in relation to Article 16 of the Labor Code; hence, Article 13(b) is not applicable. However, as the first two cited articles penalize acts of recruitment and placement without proper authority, which is the charge embodied in the informations, application of the definition of recruitment and placement in Article 13(b) is unavoidable.

The view of the private respondents is that to constitute recruitment and placement, all the acts mentioned in this article should involve dealings with two or mre persons as an indispensable requirement. On the other hand, the petitioner argues that the requirement of two or more persons is imposed only where the recruitment and placement consists of an offer or promise of employment to such persons and always in consideration of a fee. The other acts mentioned in the body of the article may involve even only one person and are not necessarily for profit.

Neither interpretation is acceptable. We fail to see why the proviso should speak only of an offer or promise of employment if the purpose was to apply the requirement of two or more persons to all the acts mentioned in the basic rule. For its part, the petitioner does not explain why dealings with two or more persons are needed where the recruitment and placement consists of an offer or promise of employment but not when it is done through "canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring (of) workers.

As we see it, the proviso was intended neither to impose a condition on the basic rule nor to provide an exception thereto but merely to create a presumption. The presumption is that the individual or entity is engaged in recruitment and placement whenever he or it is dealing with two or more persons to whom, in consideration of a fee, an offer or promise of employment is made in the course of the "canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring (of) workers. "

The number of persons dealt with is not an essential ingredient of the act of recruitment and placement of workers. Any of the acts mentioned in the basic rule in Article 13(b) win constitute recruitment and placement even if only one prospective worker is involved. The proviso merely lays down a rule of evidence that where a fee is collected in consideration of a promise or offer of employment to two or more prospective workers, the individual or entity dealing with them shall be deemed to be engaged in the act of recruitment and placement. The words "shall be deemed" create that presumption.

This is not unlike the presumption in article 217 of the Revised Penal Code, for example, regarding the failure of a public officer to produce upon lawful demand funds or property entrusted to his custody. Such failure shall be prima facie evidence that he has put them to personal use; in other words, he shall be deemed to have malversed such funds or property. In the instant case, the word "shall be deemed" should by the same token be given the force of a disputable presumption or of prima facie evidence of engaging in recruitment and placement. (Klepp vs. Odin Tp., McHenry County 40 ND N.W. 313, 314.)

It is unfortunate that we can only speculate on the meaning of the questioned provision for lack of records of debates and deliberations that would otherwise have been available if the Labor Code had been enacted as a statute rather than a presidential decree. The trouble with presidential decrees is that they could be, and sometimes were, issued without previous public discussion or consultation, the promulgator heeding only his own counsel or those of his close advisers in their lofty pinnacle of power. The not infrequent results are rejection, intentional or not, of the interest of the greater number and, as in the instant case, certain esoteric provisions that one cannot read against the background facts usually reported in the legislative journals.

At any rate, the interpretation here adopted should give more force to the campaign against illegal recruitment and placement, which has victimized many Filipino workers seeking a better life in a foreign land, and investing hard- earned savings or even borrowed funds in pursuit of their dream, only to be awakened to the reality of a cynical deception at the hands of theirown countrymen.

WHEREFORE, the Orders of June 24, 1981, and September 17, 1981, are set aside and the four informations against the private respondent reinstated. No costs.

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

FIRST DIVISION

G.R. No. 84082 March 13, 1991

HELLENIC PHILIPPINE SHIPPING, INC., petitioner, vs.EPIFANIO C. SIETE and NATIONAL LABOR RELATIONS COMMISSION (NLRC), respondents.Prudencio Cruz for petitioner.

Robiso, Chavez & Romero for private respondent.

CRUZ, J.:pChallenged in this petition is the decision of the respondent NLRC holding Hellenic Philippine Shipping Company liable for the illegal dismissal of Capt. Epifanio Siete, herein private respondent, and awarding him salaries and other benefits corresponding to the unexpired portion of his employment contract. Enforcement of this decision has meanwhile been held in abeyance pursuant to our temporary restraining order dated August 3, 1988.

Siete was employed on May 22, 1985, as Master of M/V Houda G by Sultan Shipping Co., Ltd., through its crewing agent, herein petitioner. He boarded the vessel on May 24, 1985, at Cyprus. From there, it sailed on June 1, 1985, to El Ferrol, Spain, where it loaded cargo that it subsequently discharged at Tripoli, Lebanon, from June 25-29, 1985. It then proceeded back to Cyprus, arriving there on June 30, 1985.

On July 8, 1985, Capt. Wilfredo Lim boarded the vessel and advised Siete that he had instructions from the owners to take over its command. These instructions were confirmed by a telex sent by Sultan Shipping to Siete on July 10, 1985. Neither Lim nor the telex indicated the reason for his relief. The private respondent claims this information was also withheld from him by the petitioner upon his repatriation to Manila.

On July 12, 1985, Siete filed a complaint against the petitioner for illegal dismissal and non-payment of his salary and other benefits under their employment contract. On September 6, 1985, the petitioner alleged in its answer that the complainant had been dismissed because of his failure to complete with the instruction of Sultan Shipping to erase the timber load line on the vessel and for his negligence in the discharge of the cargo at Tripoli that endangered the vessel and stevedores. Siete denied these averments in his reply dated September 23, 1985, and reiterated that he had not earlier been informed of the cause of his dismissal and repatriation, either in Cyprus or later in Manila.

After considering the position papers and documentary evidence of the parties, Administrator Tomas D. Achacoso of the Philippine Overseas Employment Administration (POEA) dismissed the complaint, holding that there was valid cause for Siete's removal. 2 The decision placed much value on the various communications presented by the petitioner to show that Siete was indeed guilty of the charges that justified his separation.

On January 4, 1988, the private respondent appealed to the NLRC, contending that the records presented by the petitioner were prepared long after his dismissal and were especially suspect because they came from persons in the employ of Sultan Shipping. He insisted that he was dismissed without even being informed of the charges against him or given an opportunity to refute them. He added that, even assuming he was negligent in the unloading of the cargo at Tripoli, this shortcoming did not warrant such a severe penalty as his dismissal.

In its decision dated June 27, 1988, 3 the public respondent reversed the POEA Administrator, holding that the dismissal violated due process and that the documents submitted by the petitioner were hearsay, self-serving, and not verified. Accordingly, it disposed as follows:

A new decision is entered finding the dismissal of complainant as illegal. Respondent is hereby ordered to pay to the complainant his salaries, wages and other benefits corresponding to the unexpired portion of his employment contract with Sultan Shipping Company, Ltd., dated May 22, 1985.

The petitioner now faults this decision as having been reached with grave abuse of discretion. It contends that the private respondent had been instructed to erase the timber load line on the vessel; that he had indeed been negligent in supervising the unloading of the cargo at Tripoli, resulting in the replacement of certain damaged equipment; and that he had not been denied due process, considering the summary nature of the proceedings that had to be taken in view of the nature of his position. Moreover, assuming the awards were justified, there was a mistake in their computation because the amount of $400.90 previously collected by Siete had not been deducted.

Certiorari is denied.

The findings of fact of public respondent are conclusive on this Court, there being no showing that they were reached arbitrarily. Substantial evidence has established that the private respondent was indeed not notified of the charges against him and that no investigation was conducted to justify his dismissal. Moreover, the petitioner has failed to prove that Siete had been instructed to erase the timber load lines and that he had been negligent in the cargo unloading at Tripoli.

The Court notes that the reports submitted by the petitioner to prove its charges were all prepared after the fact of Siete's dismissal and were signed by its own employees. 4 Their motives are necessarily suspect. The mere fact that they have made such reports does not itself prove the charges, which were investigated ex parte, if at all. It is not denied that Siete was not informed of the charges beforehand or that he was given an opportunity to refute them. Even after his arrival in Manila, he was kept in the dark about the reason for his dismissal. The excuse of the petitioner that it itself did not know why he was dismissed, being only a crewing agent of Sultan Shipping, deserves no comment.

The Labor Code provides as follows:

Sec. 1. Security of tenure and due process. No worker shall be dismissed except for a just or authorized cause provided by law and after due process.

Sec. 2. Notice of dismissal. Any employer who seeks to dismiss a worker shall furnish him a written notice stating the particular acts or omission constituting the grounds for his dismissal. In cases of abandonment of work, the notice shall be served at the worker's last known address.

xxx xxx xxx

Sec. 5. Answer and hearing. The worker may answer the allegations stated against him in the notice of dismissal within a reasonable period from receipt of such notice. The employer shall afford the worker ample opportunity to be heard and to defend himself with the assistance of his representative, if he so desires.

Sec. 6. Decision to dismiss. The employer shall immediately notify a worker in writing of a decision to dismiss him stating clearly the reasons therefor.

The petitioner argues that whatever defects might have tainted the private respondent's dismissal were subsequently cured when the charges against him were specified and sufficiently discussed in the position papers submitted by the parties to the POEA. That argument is unacceptable. The issue before the POEA was in fact the lack of due process in Siete's dismissal. The law requires that the investigation be conducted before the dismissal, not after. That omission cannot be corrected by the investigation later conducted by the POEA. As the Solicitor General correctly maintained, the due process requirement in the dismissal process is different from the due process requirement in the POEA proceeding. Both requirements must be separately observed.

While it is true that in Wenphil Corp. v. NLRC 5 and Rubberworld (Phils.) v. NLRC 6 the lack of due process before the dismissal of the employee was deemed corrected by the subsequent administrative proceedings where the dismissed employee was given a chance to be heard, those cases involved dismissals that were later proved to be for a valid cause. The doctrine in those cases is not applicable to the case at bar because our findings here is that the dismissal was not justified.

The argument that the afore-quoted provisions are not applicable to the private respondent because he was a managerial employee must also be rejected. It is not correct to say that managerial employees may be arbitrarily dismissed, at any time and without cause as established in an appropriate investigation. Managerial employees, no less than rank-and-file laborers, are entitled to due process. Loss of confidence, which is the usual ground for the removal of the managerial employee, must be established like any other lawful cause. 7 Even if it be assumed that Siete was a managerial employee an issue which, incidentally, was not earlier raised or resolved the petitioner has not satisfactorily proved the reason for its supposed loss of confidence in him.

It is not true that the vessel would be left unattended if the captain were to be placed under investigation because he would not have a ready replacement. The petitioner forgets that under Article 627 of the Code of Commerce:

Art. 627. The sailing mate, as the second chief of the vessel and unless the ship agent does not order otherwise, shall take the place of the captain in case of absence, sickness or death and shall then assume all Ins powers, obligations and liabilities.

let alone the fact that in the particular case of Siete, there was actually a ready replacement for him. This was Capt. Lim who, on instruction of Sultan Shipping, boarded the vessel on July 8, 1985, purposely to take over its command from Capt. Siete.

The Court reiterates the ruling that private employment agencies are jointly and severally liable with the foreign-based employer for any violation of the recruitment agreement or the contract of employment. 8 As a requirement for the issuance to it of a license to operate a private recruiting agency, a verified undertaking was made by the petitioner that it would "assume joint and solidary liability with the employer for all claims and liabilities which (might) arise in connection with the implementation of the contract of employment." It cannot now contend that as a mere crewing agent it cannot be made to answer for the liabilities of Sultan Shipping.

The reason for the above-mentioned requirement is obvious. Were the rule otherwise, employees with legitimate demands against the employer would be helpless to enforce them because the latter has no office or properties in this jurisdiction. Violation of the employment contract would remain unredressed. It was precisely to correct this difficulty that the recruiting agent is now required, as a condition for the issuance to it of a license to operate, to assure the employee that he has remedies available in this country even if the culpable employer is beyond the reach of our courts.

It need only be noted that there was a slight error in the computation of the award due the private respondent which he himself acknowledges. This was the failure to deduct from his total award the amount of $400.90 he admitted having earlier collected in Cyprus. As corrected, the computation of the total award should be as follows:

Monthly Basic Pay US$1,200.00Monthly Allowance 500.00Total Monthly Compensation US$1,700.00

One-Year Salary & Allowance(US$1,700.00 x 12) US$20,400.00Plus: One-Month Leave Pay 1,700.00US$22,100.00

Less: Cash Advances:

Manila US$600.00Spain 64.70Lebanon 500.001,164.70Slapchest 28.36Bal. of shipcash fund 400.90

Total Deductions 1,593.96

Total Amount Due US$20,506.04

We are not persuaded that the NLRC committed grave abuse of discretion in reversing the findings of the POEA sustaining the petitioner and dismissing the private respondent's complaint. On the contrary, we agree that the private respondent was illegally dismissed because, first, he was not accorded a fair investigation as required by law, and second, because the grounds invoked for his separation have not been proved by the petitioner.

WHEREFORE, the challenged decision as above modified is AFFIRMED and the petition DISMISSED, with costs against the petitioner. The temporary restraining order dated August 3,1988, is LIFTED.

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

SECOND DIVISION

G.R. No. 113161 August 29, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.LOMA GOCE y OLALIA, DAN GOCE and NELLY D. AGUSTIN, accused. NELLY D. AGUSTIN, accused-appellant.

REGALADO, J.:On January 12, 1988, an information for illegal recruitment committed by a syndicate and in large scale, punishable under Articles 38 and 39 of the Labor Code (Presidential Decree No. 442) as amended by Section 1(b) of Presidential Decree No. 2018, was filed against spouses Dan and Loma Goce and herein accused-appellant Nelly Agustin in the Regional Trial Court of Manila, Branch 5, alleging

That in or about and during the period comprised between May 1986 and June 25, 1987, both dates inclusive, in the City of Manila, Philippines, the said accused, conspiring and confederating together and helping one another, representing themselves to have the capacity to contract, enlist and transport Filipino workers for employment abroad, did then and there willfully and unlawfully, for a fee, recruit and promise employment/job placement abroad, to (1) Rolando Dalida y Piernas, (2) Ernesto Alvarez y Lubangco, (3) Rogelio Salado y Savillo, (4) Ramona Salado y Alvarez, (5) Dionisio Masaya y de Guzman, (6) Dave Rivera y de Leon, (7) Lorenzo Alvarez y Velayo, and (8) Nelson Trinidad y Santos, without first having secured the required license or authority from the Department of Labor. 1On January 21, 1987, a warrant of arrest was issued against the three accused but not one of them was arrested. 2 Hence, on February 2, 1989, the trial court ordered the case archived but it issued a standing warrant of arrest against the accused. 3Thereafter, on learning of the whereabouts of the accused, one of the offended parties, Rogelio Salado, requested on March 17, 1989 for a copy of the warrant of arrest. 4 Eventually, at around midday of February 26, 1993, Nelly Agustin was apprehended by the Paraaque police. 5 On March 8, 1993, her counsel filed a motion to revive the case and requested that it be set for hearing "for purposes of due process and for the accused to immediately have her day in court" 6 Thus, on April 15, 1993, the trial court reinstated the case and set the arraignment for May 3, 1993, 7 on which date of Agustin pleaded not guilty 8 and the case subsequently went to trial.

Four of the complainants testified for the prosecution. Rogelio Salado was the first to take the witness stand and he declared that sometime in March or April, 1987, he was introduced by Lorenzo Alvarez, his brother-in-law and a co-applicant, to Nelly Agustin in the latter's residence at Factor, Dongalo, Paraaque, Metro Manila. Representing herself as the manager of the Clover Placement Agency, Agustin showed him a job order as proof that he could readily be deployed for overseas employment. Salado learned that he had to pay P5,000.00 as processing fee, which amount he gave sometime in April or May of the same year. He was issued the corresponding receipt. 9Also in April or May, 1987, Salado, accompanied by five other applicants who were his relatives, went to the office of the placement agency at Nakpil Street, Ermita, Manila where he saw Agustin and met the spouses Dan and Loma Goce, owners of the agency. He submitted his bio-data and learned from Loma Goce that he had to give P12,000.00, instead of the original amount of P5,000.00 for the placement fee. Although surprised at the new and higher sum, they subsequently agreed as long as there was an assurance that they could leave for abroad. 10Thereafter, a receipt was issued in the name of the Clover Placement Agency showing that Salado and his aforesaid co-applicants each paid P2,000.00, instead of the P5,000.00 which each of them actually paid. Several months passed but Salado failed to leave for the promised overseas employment. Hence, in October, 1987, along with the other recruits, he decided to go to the Philippine Overseas Employment Administration (POEA) to verify the real status of Clover Placement Agency. They discovered that said agency was not duly licensed to recruit job applicants. Later, upon learning that Agustin had been arrested, Salado decided to see her and to demand the return of the money he had paid, but Agustin could only give him P500.00. 11Ramona Salado, the wife of Rogelio Salado, came to know through her brother, Lorenzo Alvarez, about Nelly Agustin. Accompanied by her husband, Rogelio, Ramona went to see Agustin at the latter's residence. Agustin persuaded her to apply as a cutter/sewer in Oman so that she could join her husband. Encouraged by Agustin's promise that she and her husband could live together while working in Oman, she instructed her husband to give Agustin P2,000.00 for each of them as placement fee, or the total sum of P4,000.00. 12Much later, the Salado couple received a telegram from the placement agency requiring them to report to its office because the "NOC" (visa) had allegedly arrived. Again, around February, or March, 1987, Rogelio gave P2,000.00 as payment for his and his wife's passports. Despite follow-up of their papers twice a week from February to June, 1987, he and his wife failed to leave for abroad. 13Complainant Dionisio Masaya, accompanied by his brother-in-law, Aquiles Ortega, applied for a job in Oman with the Clover Placement Agency at Paraaque, the agency's former office address. There, Masaya met Nelly Agustin, who introduced herself as the manager of the agency, and the Goce spouses, Dan and Loma, as well as the latter's daughter. He submitted several pertinent documents, such as his bio-data and school credentials. 14In May, 1986, Masaya gave Dan Goce P1,900.00 as an initial downpayment for the placement fee, and in September of that same year, he gave an additional P10,000.00. He was issued receipts for said amounts and was advised to go to the placement office once in a while to follow up his application, which he faithfully did. Much to his dismay and chagrin, he failed to leave for abroad as promised. Accordingly, he was forced to demand that his money be refunded but Loma Goce could give him back only P4,000.00 in installments. 15As the prosecution's fourth and last witness, Ernesto Alvarez took the witness stand on June 7, 1993. He testified that in February, 1987, he met appellant Agustin through his cousin, Larry Alvarez, at her residence in Paraaque. She informed him that "madalas siyang nagpapalakad sa Oman" and offered him a job as an ambulance driver at the Royal Hospital in Oman with a monthly salary of about $600.00 to $700.00. 16On March 10, 1987, Alvarez gave an initial amount of P3,000.00 as processing fee to Agustin at the latter's residence. In the same month, he gave another P3,000.00, this time in the office of the placement agency. Agustin assured him that he could leave for abroad before the end of 1987. He returned several times to the placement agency's office to follow up his application but to no avail. Frustrated, he demanded the return of the money he had paid, but Agustin could only give back P500.00. Thereafter, he looked for Agustin about eight times, but he could no longer find her. 17Only herein appellant Agustin testified for the defense. She asserted that Dan and Loma Goce were her neighbors at Tambo, Paraaque and that they were licensed recruiters and owners of the Clover Placement Agency. Previously, the Goce couple was able to send her son, Reynaldo Agustin, to Saudi Arabia. Agustin met the aforementioned complainants through Lorenzo Alvarez who requested her to introduce them to the Goce couple, to which request she acceded. 18Denying any participation in the illegal recruitment and maintaining that the recruitment was perpetrated only by the Goce couple, Agustin denied any knowledge of the receipts presented by the prosecution. She insisted that the complainants included her in the complaint thinking that this would compel her to reveal the whereabouts of the Goce spouses. She failed to do so because in truth, so she claims, she does not know the present address of the couple. All she knew was that they had left their residence in 1987. 19Although she admitted having given P500.00 each to Rogelio Salado and Alvarez, she explained that it was entirely for different reasons. Salado had supposedly asked for a loan, while Alvarez needed money because he was sick at that time. 20On November 19, 1993, the trial court rendered judgment finding herein appellant guilty as a principal in the crime of illegal recruitment in large scale, and sentencing her to serve the penalty of life imprisonment, as well as to pay a fine of P100,000.00. 21In her present appeal, appellant Agustin raises the following arguments: (1) her act of introducing complainants to the Goce couple does not fall within the meaning of illegal recruitment and placement under Article 13(b) in relation to Article 34 of the Labor Code; (2) there is no proof of conspiracy to commit illegal recruitment among appellant and the Goce spouses; and (3) there is no proof that appellant offered or promised overseas employment to the complainants. 22 These three arguments being interrelated, they will be discussed together.

Herein appellant is accused of violating Articles 38 and 39 of the Labor Code. Article 38 of the Labor Code, as amended by Presidential Decree No. 2018, provides that any recruitment activity, including the prohibited practices enumerated in Article 34 of said Code, undertaken by non-licensees or non-holders of authority shall be deemed illegal and punishable under Article 39 thereof. The same article further provides that illegal recruitment shall be considered an offense involving economic sabotage if any of these qualifying circumstances exist, namely, (a) when illegal recruitment is committed by a syndicate, i.e., if it is carried out by a group of three or more persons conspiring and/or confederating with one another; or (b) when illegal recruitment is committed in large scale, i.e., if it is committed against three or more persons individually or as a group.

At the outset, it should be made clear that all the accused in this case were not authorized to engage in any recruitment activity, as evidenced by a certification issued by Cecilia E. Curso, Chief of the Licensing and Regulation Office of the Philippine Overseas Employment Administration, on November 10, 1987. Said certification states that Dan and Loma Goce and Nelly Agustin are neither licensed nor authorized to recruit workers for overseasemployment. 23 Appellant does not dispute this. As a matter of fact her counsel agreed to stipulate that she was neither licensed nor authorized to recruit applicants for overseas employment. Appellant, however, denies that she was in any way guilty of illegal recruitment. 24It is appellant's defensive theory that all she did was to introduce complainants to the Goce spouses. Being a neighbor of said couple, and owing to the fact that her son's overseas job application was processed and facilitated by them, the complainants asked her to introduce them to said spouses. Allegedly out of the goodness of her heart, she complied with their request. Such an act, appellant argues, does not fall within the meaning of "referral" under the Labor Code to make her liable for illegal recruitment.

Under said Code, recruitment and placement refers to any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not; provided, that any person or entity which, in any manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement. 25 On the other hand, referral is the act of passing along or forwarding of an applicant for employment after an initial interview of a selected applicant for employment to a selected employer, placement officer or bureau. 26Hence, the inevitable query is whether or not appellant Agustin merely introduced complainants to the Goce couple or her actions went beyond that. The testimonial evidence hereon show that she indeed further committed acts constitutive of illegal recruitment. All four prosecution witnesses testified that it was Agustin whom they initially approached regarding their plans of working overseas. It was from her that they learned about the fees they had to pay, as well as the papers that they had to submit. It was after they had talked to her that they met the accused spouses who owned the placement agency.

As correctly held by the trial court, being an employee of the Goces, it was therefore logical for appellant to introduce the applicants to said spouses, they being the owners of the agency. As such, appellant was actually making referrals to the agency of which she was a part. She was therefore engaging in recruitment activity. 27Despite Agustin's pretensions that she was but a neighbor of the Goce couple, the testimonies of the prosecution witnesses paint a different picture. Rogelio Salado and Dionisio Masaya testified that appellant represented herself as the manager of the Clover Placement Agency. Ramona Salado was offered a job as a cutter/sewer by Agustin the first time they met, while Ernesto Alvarez remembered that when he first met Agustin, the latter represented herself as "nagpapaalis papunta sa Oman." 28 Indeed, Agustin played a pivotal role in the operations of the recruitment agency, working together with the Goce couple.

There is illegal recruitment when one gives the impression of having the ability to send a worker abroad." 29 It is undisputed that appellant gave complainants the distinct impression that she had the power or ability to send people abroad for work such that the latter were convinced to give her the money she demanded in order to be so employed. 30It cannot be denied that Agustin received from complainants various sums for purpose of their applications. Her act of collecting from each of the complainants payment for their respective passports, training fees, placement fees, medical tests and other sundry expenses unquestionably constitutes an act of recruitment within the meaning of the law. In fact, appellant demanded and received from complainants amounts beyond the allowable limit of P5,000.00 under government regulations. It is true that the mere act of a cashier in receiving money far exceeding the amount allowed by law was not considered per se as "recruitment and placement" in contemplation of law, but that was because the recipient had no other participation in the transactions and did not conspire with her co-accused in defrauding the victims. 31 That is not the case here.

Appellant further argues that "there is no evidence of receipts of collections/payments from complainants to appellant." On the contrary, xerox copies of said receipts/vouchers were presented by the prosecution. For instance, a cash voucher marked as Exhibit D, 32 showing the receipt of P10,000.00 for placement fee and duly signed by appellant, was presented by the prosecution. Another receipt, identified as Exhibit E, 33 was issued and signed by appellant on February 5, 1987 to acknowledge receipt of P4,000.00 from Rogelio and Ramona Salado for "processing of documents for Oman." Still another receipt dated March 10, 1987 and presented in evidence as Exhibit F, shows that appellant received from Ernesto Alvarez P2,000.00 for "processing of documents for Oman." 34Apparently, the original copies of said receipts/vouchers were lost, hence only xerox copies thereof were presented and which, under the circumstances, were admissible in evidence. When the original writing has been lost or destroyed or cannot be produced in court, upon proof of its execution and loss or destruction, or unavailability, its contents may be proved by a copy or a recital of its contents in some authentic document, or by the recollection of witnesses. 35Even assuming arguendo that the xerox copies presented by the prosecution as secondary evidence are not allowable in court, still the absence thereof does not warrant the acquittal of appellant. In People vs. Comia, 36 where this particular issue was involved, the Court held that the complainants' failure to ask for receipts for the fees they paid to the accused therein, as well as their consequent failure to present receipts before the trial court as proof of the said payments, is not fatal to their case. The complainants duly proved by their respective testimonies that said accused was involved in the entire recruitment process. Their testimonies in this regard, being clear and positive, were declared sufficient to establish that factum probandum.

Indeed, the trial court was justified and correct in accepting the version of the prosecution witnesses, their statements being positive and affirmative in nature. This is more worthy of credit than the mere uncorroborated and self-serving denials of appellant. The lame defense consisting of such bare denials by appellant cannot overcome the evidence presented by the prosecution proving her guilt beyond reasonable doubt. 37The presence of documentary evidence notwithstanding, this case essentially involves the credibility of witnesses which is best left to the judgment of the trial court, in the absence of abuse of discretion therein. The findings of fact of a trial court, arrived at only after a hearing and evaluation of what can usually be expected to be conflicting testimonies of witnesses, certainly deserve respect by an appellate court. 38 Generally, the findings of fact of the trial court on the matter of credibility of witnesses will not be disturbed on appeal. 39In a last-ditch effort to exculpate herself from conviction, appellant argues that there is no proof of conspiracy between her and the Goce couple as to make her liable for illegal recruitment. We do not agree. The evidence presented by the prosecution clearly establish that appellant confabulated with the Goces in their plan to deceive the complainants. Although said accused couple have not been tried and convicted, nonetheless there is sufficient basis for appellant's conviction as discussed above.

In People vs. Sendon, 40 we held that the non-prosecution of another suspect therein provided no ground for the appellant concerned to fault the decision of the trial court convicting her. The prosecution of other persons, equally or more culpable than herein appellant, may come later after their true identities and addresses shall have been ascertained and said malefactors duly taken into custody. We see no reason why the same doctrinal rule and course of procedure should not apply in this case.

WHEREFORE, the appealed judgment of the court a quo is hereby AFFIRMED in toto, with costs against accused-appellant Nelly D. Agustin.

SO ORDERED.

SECOND DIVISION

[G.R. No. 115350. September 30, 1996]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RESTITUTO PABALAN y CALILONG, accused-appellant.[G.R. Nos. 117819-21. September 30, 1996]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RESTITUTO PABALAN y CALILONG, accused-appellant.D E C I S I O N

REGALADO, J.:

Accused-Appellant Restituto C. Pabalan was charged with illegal recruitment in large scale and three counts of estafa in separate informations filed before the Regional Trial Court of Valenzuela, Metro Manila, Branch 171.[1]The information in each case reads as follows:

Criminal Case No. 3089-V-93:

That during the period from April up to June 1993 in Valenzuela, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, representing himself to have the capacity to contract, enlist and recruit workers for employment abroad, did then and there wilfully and unlawfully, for a fee, recruit and promise employment/job placement in a large scale to HENRY LUCIANO y PALLASIGUE, JUNE BARRERA Y PINEDA and MANUEL GARCIA Y RAGUA, without said accused having secured first the necessary license or authority to engage in recruitment activity from the Philippine Overseas Employment Administration (POEA), in violation of the aforementioned provision of law.

Contrary to law.

Valenzuela, Metro Manila, August 18, 1993.[2]Criminal Case No. 3090-V-93That sometime in the month of May, 1993 in Valenzuela, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, defrauded and deceived one JUNE D. BARRERA, in the following manner to wit: said accused, by means of false manifestations and fraudulent representation which (he) made to the said complainant to the effect that he has the capacity and power to recruit and employ complainant abroad and facilitate the necessary amount to meet the requirements thereof, knowing said manifestations and representation to be false and fraudulent and w(e)re made only to induce said complainant to give, as in fact, the latter did give and deliver to said accused cash money amounting to P100,000.00, but said accused, once in possession of the same, with intent to defraud and deceive the herein complainant, did then and there wilfully, unlawfully and feloniously misapply, misappropriate and convert to his own personal use and benefit, despite demands made upon him to return the said amount of P100,000.00 said accused failed and refused and still fails and refuses to do so, to the damage and prejudice of the complainant in the aforementioned amount of P100,000.00.

Contrary to law.

Valenzuela, Metro Manila, August 18, 1993.[3]Criminal Case No. 3091-V-93That sometime in the month of April, 1993 in Valenzuela, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, defrauded and deceived one MANUEL R. GARCIA, in the following manner to wit: said accused, by means of false manifestations and fraudulent representation which (he) made to the said complainant to the effect that he has the capacity and power to recruit and employ complainant abroad and facilitate the necessary amount to meet the requirements thereof, knowing said manifestations and representation to be false and fraudulent and w(e)re made only to induce said complainant to give, as in fact, the latter did give and deliver to said accused cash money amounting to P26,000.00 and $1,600.00, said accused failed and refused and still fails and refuses to do so, to the damage and prejudice of the complainant in the aforementioned amount of P26,000.00 and $1,600.00.

Contrary to law.

Valenzuela, Metro Manila, August 18, 1993.[4]Criminal Case No. 3092-V-93That sometime in the month of May, 1993 in Valenzuela, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, defrauded and deceived one HENRY LUCIANO y PALLASIGUE, in the following manner to wit: said accused, by means of false manifestations and fraudulent representation which (he) made to the said complainant to the effect that he has the capacity and power to recruit and employ complainant abroad and facilitate the necessary amount to meet the requirements thereof, knowing said manifestations and representation to be false and fraudulent and w(e)re made only to induce said complainant to give, as in fact, the latter did give and deliver to said accused cash money amounting to P100,000.00, but said accused, once in possession of the same, with intent to defraud and deceive the herein complainant, did then and there wilfully, unlawfully and feloniously misapply, misappropriate and convert to his own personal use and benefit, despite demands made upon him to return the said amount of P100,000.00, said accused failed and refused and still fails and refuses to do so, to the damage and prejudice of the complainant in the aforementioned amount of P100,000.00.

Contrary to law.

Valenzuela, Metro Manila, August 18, 1993.[5]Upon arraignment, appellant pleaded not guilty to the offenses charged. As said indictments are founded on the same facts, the cases were tried jointly. The prosecution presented the three complainants in the criminal cases and they identified appellant as the person who perpetrated the crimes of illegal recruitment and estafa against them.

According to June D. Barrera,[6] he met appellant on May 9, 1993 in Lacmit, Arayat, Pampanga. Appellant told him that he could send him abroad and promised him a job in a construction company in Japan. On that assurance, Barrera gave an initial amount of P2,000.00 on that same day to appellant for the processing of his passport. Thereafter, he gave another P5,000.00 on May 15, 1993. On May 19, 1993, Barrera went to appellants residence in Marulas, Bulacan and gave him P20,000.00 for the airplane ticket for the trip to Japan. These three amounts were covered by a receipt for P27,000.00 breaking down the expenses as follows: services rendered, round-trip plane ticket, travel tax and hotel reservations.[7]Appellant subsequently explained to Barrera that they would have to use Saipan as an entry point to Japan. Accordingly, Barrera gave appellant $500.00 as an additional payment for the plane ticket to Saipan.

Accompanied by appellant, he and other job-seekers were able to reach Saipan where they stayed for six days in a hotel. In Saipan, Barrera gave appellant another $2,000.00, supposedly required as show money attesting to his financial capacity, in order to obtain an airplane ticket to Japan. They were able to reach Japan but were detained immediately upon arrival for want of a job order to work in that country. On the following day, they were sent back to the Philippines.

Back in this country, appellant kept on assuring Barrera that he would send him back to Japan, but nothing materialized from his promises. Barrera disclosed to the court that he only borrowed money and mortgaged his land to raise the necessary amounts demanded by appellant.

Henry Luciano testified[8] that he met appellant on May 9, 1993 in Lacmit, Arayat, Pampanga through his cousin, June Barrera. Appellant told him that he could arrange employment for him abroad for P100,000.00 and once he shall already be working, he should give him an additional P20,000.00. To start the processing of the documents needed for his travel, Luciano gave P3,500.00 to appellant.[9] Then on May 19, 1993, in the company of his cousin, Luciano gave P28,900.00 to appellant for the following expenses services rendered, round-trip plane ticket, travel tax and hotel reservations.[10] Then, on May 27, 1993, he gave P12,000.00 more to appellant as additional payment for his airplane ticket.

Luciano, appellant and other job-seekers left Manila for Saipan on June 2, 1993 and stayed in said territory for six days. In Saipan, Luciano again gave $2,000.00 to appellant for his airplane ticket to Japan. However, upon reaching Japan, they were detained by the immigration officers at the airport in Narita because they had no working visas. After staying overnight in a detention house, they were deported to the Philippines.

Just like his cousin, Luciano declared that he had borrowed money and mortgaged his land just to raise the amount needed for his placement overseas.

Manuel Garcia testified[11] December 3, 1993, 2-10.11 that he was introduced by a friend to appellant sometime in March, 1993. Appellant promised him in that meeting that he could get him a job abroad. On April 3, 1993, Garcia gave P26,000.00 to appellant as payment for the latters services in finding him employment overseas.

Together with Barrera, Luciano, one Emerito Isip, one Aquilino Espino, Jr., and appellant himself, Garcia left the Philippines for Saipan sometime in June of that year. In Saipan, he gave an additional $1,600.00 to appellant as requested by the latter. Thereafter, upon instructions of appellant, he and Espino left one day ahead of the group in going to Japan. Just like the misfortune that would befall their other companions, the two were apprehended upon reaching the airport in Japan and were later deported to the Philippines.

It is undisputed that appellant was not qualified to recruit workers. He admitted the authenticity and due execution of the certification issued by the Philippine Overseas Employment Administration (POEA) to the effect that he was not licensed or authorized by the Administration to recruit workers for overseas employment.[12]However, he anchored his defense on a total denial of the illegal acts imputed to him. Appellant contended that he was never engaged in illegal recruitment when he dealt with Barrera and Luciano, and that he had no transaction whatsoever with Garcia.

In his testimony in the lower court,[13] appellant claimed that he first met Barrera and Luciano in the last week of April, 1993 when the duo came to his house with a letter from a former mayor of Arayat requesting him to help them get tourist visas for Japan. They told him that they wanted to go to Japan as tourists.

Knowing that it was hard to get a tourist visa at the Japanese Embassy, he advised them to first go to Saipan and then proceed from there to Japan. He explained that it was easy to go to Japan through Saipan because foreigners who stay in Saipan for one week can enter Japan as transit passengers for seventy-two hours and secure short pass visas for their use.

After the two had gotten their passports, appellant accompanied them to the Philippine Travel Agency at Ermita, Manila to buy their round-trip airplane tickets for Saipan. Appellant also bought a ticket for himself because he allegedly had a friend in Japan whom he wanted to visit.

In Saipan, they stayed at the MMF Hotel for seven days and paid for their own expenses. It was also in Saipan where they bought their tickets for Japan. Upon entering Japan, however, they were brought to the Narita rest house immigration jail. They were denied short pass visas because of tight security in connection with the preparations for the wedding of the Emperors son. Subsequently, they were expatriated from Japan.

Appellant, on the other hand, claimed that it was only in Saipan that he met Garcia and disclaimed having promised a job to the latter. He further denied having received any money from complainants, but admitted that the signatures in the receipts are his. After joint trial duly conducted, the lower court found appellant guilty of all the charges and rendered the following judgment:

WHEREFORE, finding accused Restituto Pabalan y Calilong:

CRIMINAL CASE NO. 3089-V-93Guilty beyond reasonable doubt of Illegal Recruitment (in) large scale, he is hereby sentenced to suffer the penalty of RECLUSION PERPETUA and to pay a fine of ONE HUNDRED THOUSAND PESOS (P100,000.00) and the costs of suit.

CRIMINAL CASE NO. 3090-V-93Guilty beyond reasonable doubt of Estafa defined and punished under Article 315 (2) (a) of the Revised Penal Code, he is hereby sentenced to suffer an indeterminate imprisonment from EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor, as minimum, to FOURTEEN (14) YEARS of Reclusion Temporal, as maximum, with the accessory penalties prescribed by law and to pay the costs.

The accused is hereby ordered to pay the offended party the sum of P89,000.00.

CRIMINAL CASE NO. 3091-V-93Guilty beyond reasonable doubt of Estafa defined and punished under Article 315 (2) (a) of the Revised Penal Code, he is hereby sentenced to suffer an indeterminate imprisonment from SIX (6) YEARS of Prision Correccional, as minimum, to TWELVE (12) YEARS of Prision Mayor, as maximum, with the accessory penalties prescribed by law and to pay the costs.

The accused is ordered to pay the offended party the sum of P66,000.00

CRIMINAL CASE NO. 3092-V-93Guilty beyond reasonable doubt of Estafa defined and punished under Article 315 (2) (a) of the Revised Penal Code, he is hereby sentenced to suffer an indeterminate imprisonment from EIGHT (8) YEARS and ONE (10) DAY of Prision Mayor, as minimum, to FIFTEEN (15) YEARS of Reclusion Temporal, as maximum, with the accessory penalties prescribed by law and to pay the costs.

The accused is ordered to pay the offended party the sum of P94,400.00.

SO ORDERED.[14]Hence, this appeal, on the ground that the trial court erred in convicting appellant of the crimes of illegal recruitment in large scale and estafa despite the absence of evidence showing his guilt beyond reasonable doubt.[15] Upon motion of appellant, the First Division of this Court ordered the consolidation of G.R. Nos. 117819-21 (the appeal in Criminal Case Nos. 3090-V-93, 3091-V-93 and 3092-V-93) with G.R. No. 115350 (the appeal in Criminal Case No. 3089-V-93).[16] His brief filed thereafter presents a slew of arguments seeking to overturn his conviction in the aforementioned cases.

Firstly, appellant posits that he cannot be convicted of illegal recruitment because of the absence of receipts indicating that complainants did pay him fees in consideration of his services.[17]Although not all of the amounts testified to by complainants were covered by receipts, the fact that there were no receipts for some of the amounts delivered to him does not mean that appellant did not accept or receive such payments. This Court has ruled in several cases that the absence of receipts in a criminal case for illegal recruitment does not warrant the acquittal of the accused and is not fatal to the case of the prosecution.[18] As long as the witnesses had positively shown through their respective testimonies that the accused is the one involved in the prohibited recruitment, he may be convicted of the offense despite the want of receipts.

The Statute of Frauds and the rules of evidence do not require the presentation of receipts in order to prove the existence of a recruitment agreement and the procurement of fees in illegal recruitment cases. The amounts may consequently be proved by the testimony of witnesses.

The finding of illegal recruitment in large scale is justified whenever the following elements are present: (1) that the offender engages in the recruitment and placement of workers as defined in Article 13(b) of the Labor Code or in any prohibited activities under Article 34 of the same code; (2) that the offender does not have a license or authority to recruit and deploy workers, either locally or overseas; and (3) that the offender commits the same against three (3) or more persons, individually or as a group.[19] Article 13(b) characterizes recruitment and placement as any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not.

It will readily be noted, as earlier explained, that the exhibition of receipts is not necessary for the successful prosecution of the offense of illegal recruitment in large scale. Since all of the above elements were satisfactorily proven by the prosecution before the court a quo through the testimonies of its witnesses and by competent documents, then the non-presentation of receipts should not in any way hinder the conviction of appellant.

Secondly, appellant faults the lower court for giving credence to the testimony of complainant Garcia. He claims that aside from the testimony of Garcia, there is no other evidence presented by the prosecution to show that there was a recruitment agreement between them and that money was received by appellant. His alleged companion in Saipan, Aquilino Espino, was not even presented to corroborate his story.[20]The fact that no additional evidence was presented, aside from the testimony of Garcia, will not militate against his credibility. Corroborative evidence is necessary only when there are reasons to warrant the suspicion that the witness falsified the truth or that his observations are incorrect.[21] Complainant Garcias straightforward and clear testimony renders unnecessary the presentation of documents and other evidence to prove that appellant was the one who engaged him to work abroad.

Neither will the failure of the prosecution to present Espino diminish the credibility of Garcia. It has been held that the non-presentation of certain witnesses by the prosecution is not a plausible defense and the matter of whom to present as witnesses for the prosecution lies in the sound discretion of the prosecutor handling the case.[22] Thus no adverse inference against the case of the People can be deduced from the failure of the prosecution to present Espino. Besides, if the prosecution had opted to present Espino, his testimony would merely be corroborative and can thus be dispensed with.[23]Appellant further attacks the credibility of Garcia by theorizing that it was preposterous to buy the latters airplane ticket on March 29, 1993 when, according to his own testimony, he met appellant only on April 3, 1993.[24] It is, however, well settled that minor discrepancies in the testimony of a prosecution witness do not affect his credibility.[25]The alleged inconsistencies are too insignificant to adversely affect the testimony of witness Garcia. Given the natural frailties of the human mind and its incapacity to assimilate all material details of a given incident, slight inconsistencies and variances in the declarations of a witness hardly weaken their probative value.[26]Lastly, appellant asserts that his version should have been believed by the court below since the fact that complainants reached Japan indicates that he did not recruit them.[27] It will be observed therefrom that appellants arguments seeking to disprove the conclusion on illegal recruitment actually assail the stamp of confidence placed by the court a quo upon the testimonies of the prosecution witnesses.

The best arbiter on the issue of the credibility of the prosecution witnesses and of appellant is the trial court. When the inquiry is one of credibility of witnesses, appellate courts will generally not disturb the findings of the trial court, considering that the latter is in a better position to decide the question, having heard the witnesses themselves and observed their deportment and manner of testifying during the trial, unless it plainly overlooked certain facts of substance and value which, if considered, might affect the result of the case.[28]After a thorough and painstaking review, the Court is satisfied that there is nothing in the records of these cases which signify that the trial court might have ignored or misappreciated substantial facts as would warrant a reversal of its findings and conclusions.

All the witnesses for the prosecution categorically testified that it was appellant who promised them that he could arrange for and facilitate their employment abroad. We quote with approval the conclusion of the lower court that x x x the narration of the prosecution witnesses Henry Luciano, June Barrera and Manuel Garcia are the more believable story. Their testimonies appeared credible. There is no reason not to believe or discard their testimonies. There is no sign that they testified falsely against the accused.[29]Denials of an accused cannot be given greater evidentiary weight than the positive declarations of credible witnesses who testify on affirmative matters.[30] Verily, the trial court was correct in accepting the version of the prosecution witnesses as their statements are positive and affirmative in nature. Their testimonies are more worthy of credit that the uncorroborated[31] and self-serving denials of appellant.

Just like the lower court, we find it hard to believe the story presented by appellant that he merely helped Barrera and Luciano in going to Japan as tourists. Barrera was without gainful work and Luciano was merely a farmer[32] at the time they met appellant. It is incompatible with human behaviour and contrary to ordinary experience that people already in dire financial straits will make their lives more miserable by borrowing money and mortgaging their properties just so they can visit and tour a foreign land.

Appellant finally stresses that if indeed he was guilty of illegal recruitment, he could have simply changed his residence to evade prosecution.[33] This argument is, unfortunately, purely hypothetical and clearly non sequitur. It cannot, by itself, strengthen his credibility or weaken those of the prosecutions witnesses. We have already ruled that non-flight is not a conclusive proof of innocence because such inaction may be due to several factors.[34]We now come to appellants supporting arguments on his supposed innocence in the estafa cases. On these charges, appellant claims that the evidence and circumstances on record do not show any act of deceit on his part, and that the money received from Barrera and Luciano were utilized in procuring their passports and were therefore not misappropriated.[35]Appellant was charged with and convicted for violating Article 315(2)(a) of the Revised Penal Code which provides for one of the modes of committing estafa, thus:

2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud:

(a) By using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits.

Deceit in the instant cases is shown by the false pretenses by which appellant deluded complainants into believing that he had the power and qualifications to send people abroad for employment.[36] Through this hoax, he was able to convince complainants to surrender their money to him in the vain hope, as it turned out, of securing employment abroad.

The reliance of appellant on the absence of the element of misappropriation is sorely misplaced and decidedly off-tangent. A reading of the law on estafa will readily show that misappropriation or conversion is referred to and is applicable in estafa under Article 315 (1)(b), and not to that in Article 315(2)(a).

He also avers that his conviction in the second estafa case was without legal basis because there was no other evidence, documentary or testimonial, establishing the crime of estafa except for the testimony of Garcia.[37]Although this contention has already been disposed of in the discussions above, it also bears mention that the testimony of a single prosecution witness, where credible and positive, is sufficient to prove beyond reasonable doubt the guilt of the accused.[38] There is no law which requires that the testimony of a single witness has to be corroborated, except where expressly mandated in determining the value and credibility of evidence. Witnesses are to be weighed, not numbered.[39]A final observation and reminder on the penalties imposed by the lower court.

When the offense of illegal recruitment constitutes economic sabotage, as in the present case of illegal recruitment in large scale, the penalty provided by law is life imprisonment and a fine of one hundred thousand pesos (P100,000.00).[40] Reclusion perpetua was never prescribed by the law as the punishment for such crime. This Court has repeatedly emphasized the differences between the penalty of reclusion perpetua and life imprisonment in numerous decisions and administrative circulars. We do not wish to again belabor such distinctions in this decision, but we do expect all judges to take note of the difference and impose the proper penalty with the correct nomenclature.

On the imposable penalty for the particular felony of estafa in the present cases, we are constrained to discuss the pertinent provision of Article 315 of the Revised Penal Code. Under the said article, an accused found guilty of estafa shall suffer:

1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos, but the total penalty which may be imposed shall not exceed twenty years. In such case and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be.[41]The amount of the fraud in Criminal Case No. 3090-V-93 is P88,500.00;[42] Criminal Case No. 3091-V-93, P66,000.00; and in Criminal Case No. 3092-V-93, P94,400.00. Subtracting P22,000.00 from each of the aforesaid amounts will leave P66,500.00 P44,000.00 and P72,400.00 in the respective criminal cases. To determine the additional years of imprisonment prescribed in the above article, each of the latter amounts shall be divided by P10,000.00, disregarding any amount below P10,000.00. Thus, in the foregoing estafa cases, the incremental penalties of six (6) years, four (4) years and seven (7) years should be correspondingly added to the maximum period of the basic penalty provided in the aforequoted paragraph of Article 315.

Applying the mandate of the Indeterminate Sentence Law, the maximum penalty shall therefore be taken from the maximum period of said basic penalty in Article 315 as augmented by the additional years of imprisonment, while the minimum term of the indeterminate sentence shall be within the range of the penalty next lower in degree to that provided by law without considering the incremental penalty for the amounts in excess of P22,000.00. That penalty immediately lower in degree is prision correccional in its minimum and medium periods,[43] with a duration of six (6) months and one (1) day to four (4) years and two (2) months.

Based on the foregoing considerations, the lower court incorrectly imposed the penalty of reclusion perpetua in the illegal recruitment case, and likewise erred in fixing the minimum terms of the indeterminate sentences in the estafa cases.

WHEREFORE, the judgment of the court a quo finding accused-appellant Restituto Pabalan guilty beyond reasonable doubt of the crimes of illegal recruitment in large scale (Criminal Cases No. 3089-V-93) and estafa (Criminal Cases Nos. 3090-V-93, 3091-V-93 and 3092-V-93) is hereby AFFIRMED, but the respective penalties in said cases are hereby MODIFIED, to wit:

1. In Criminal Case No. 3089-V-93, the penalty of life imprisonment is imposed on accused-appellant, instead of reclusion perpetua which is deleted by amendment.

2. In Criminal Case No. 3090-V-93, the award of P89,000.00 is reduced to P88,500.00. Accused-appellant shall serve an indeterminate sentence of four (4) years and two (2) months of prision correccional, as minimum, to fourteen (14) years of reclusion temporal, as maximum.

3. In Criminal Case No. 3091-V-93, accused-appellant shall serve an indeterminate sentence of four (4) years and two (2) months of prision correccional, as minimum, to twelve (12) years of prision mayor, as maximum.

4. In Criminal Case No. 3092-V-93, accused-appellant shall serve an indeterminate sentence of four (4) years and two (2) months of prision correccional, as minimum, to fifteen (15) years of reclusion temporal, as maximum.

In the service of the aforementioned sentences, the provisions of Article 70 of the Revised Penal Code shall be observed.

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

SECOND DIVISION

G.R. No. 109583 September 5, 1997

TRANS ACTION OVERSEAS CORPORATION, petitioner, vs.THE HONORABLE SECRETARY OF LABOR, ROSELLE CASTIGADOR, JOSEFINA MAMON, JENELYN CASA, PEACHY LANIOG, VERDELINA BELGIRA, ELMA FLORES, RAMONA LITURCO, GRACE SABANDO, GLORIA PALMA, AVELYN ALVAREZ, CANDELARIA NONO, NITA BUSTAMANTE, CYNTHIA ARANDILLO, SANDIE AGUILAR, DIGNA PANAGUITON, VERONICA BAYOGOS, JULIANITA ARANADOR, LEONORA CABALLERO, NANCY BOLIVAR, NIMFA BUCOL, ZITA GALINDO, ESTELITA BIOCOS, MARJORIE MACATE, RUBY SEPULVIDA, ROSALIE SONDIA, NORA MAQUILING, PAULINA CORDERO, LENIROSE ABANGAN, SELFA PALMA, ANTONIA NAVARRO, ELSIE PENARUBIA, IRMA SOBREQUIL, SONY JAMUAT, CLETA MAYO, respondents.

ROMERO, J.:The issue presented in the case at bar is whether or not the Secretary of Labor and Employment has jurisdiction to cancel or revoke the license of a private fee-charging employment agency.

From July 24 to September 9, 1987, petitioner Trans Action Overseas Corporation, a private fee-charging employment agency, scoured Iloilo City for possible recruits for alleged job vacancies in Hongkong. Private respondents sought employment as domestic helpers through petitioner's employees, Luzviminda Aragon, Ben Hur Domincil and his wife Cecille. The applicants paid placement fees ranging from P1,000.00 to P14,000.00, but petitioner failed to deploy them. Their demands for refund proved unavailing; thus, they were constrained to institute complaints against petitioner for violation of Articles 32 and 34(a) 1 of the Labor Code, as amended.

Petitioner denied having received the amounts allegedly collected from respondents, and averred that Aragon, whose only duty was to pre-screen and interview applicants, and the spouses Domincil were not authorized to collect fees from the applicants. Accordingly, it cannot be held liable for the money claimed by respondents. Petitioner maintains that it even warned respondents not to give any money to unauthorized individuals.

POEA Regional Extension Unit Coordinator Edgar Somes testified that although he was aware that petitioner collected fees from respondents, the latter insisted that they be allowed to make the payments on the assumption that it could hasten their deployment abroad. He added that Mrs. Honorata Manliclic, a representative of petitioner tasked to oversee the conduct of the interviews, told him that she was leaving behind presigned receipts to Aragon as she cannot stay in Iloilo City for the screening of the applicants. Manliclic, however, denied this version and argued that it was Somes who instructed her to leave the receipts behind as it was perfectly alright to collect fees.

On April 5, 1991, then Labor Undersecretary Nieves R. Confesor rendered the assailed order, the dispositive portion of which reads:

WHEREFORE, respondents are hereby ordered to pay, jointly and severally, the following claims:

1. Rosele Castigador P14,000.00

2. Josefina Mamon 3,000.00

3. Jenelyn Casa 3,000.00

4. Peachy Laniog 13,500.00

5. Verdelina Belgira 2,000.00

6. Elma Flores 2,500.00

7. Ramona Liturco 2,500.00

8. Grace Sabando 3,500.00

9. Gloria Palma 1,500.00

10. Avelyn Alvarez 1,500.00

11. Candelaria Nono 1,000.00

12. Nita Bustamante 5,000.00

13. Cynthia Arandillo 1,000.00

14. Sandie Aguilar 3,000.00

15. Digna Panaguiton 2,500.00

16. Veronica Bayogos 2,000.00

17. Sony Jamuat 4,500.00

18. Irma Sobrequil 2,000.00

19. Elsie Penarubia 2,000.00

20. Antonia Navarro 2,000.00

21. Selfa Palma 3,000.00

22. Lenirose Abangan 13,300.00

23. Paulina Cordero 1,400.00

24. Nora Maquiling 2,000.00

25. Rosalie Sondia 2,000.00

26. Ruby Sepulvida 3,500.00

27. Marjorie Macate 1,500.00

28. Estelita Biocos 3,000.00

29. Zita Galindo 3,500.00

30. Nimfa Bucol 1,000.00

31. Nancy Bolivar 2,000.00

32. Leonora Caballero 13,900.00

33. Julianita Aranador 14,000.00

The complaints of Ma. Luz Alingasa, Nimfa Perez, and Cleta Mayo are hereby dismissed in view of their desistance.

The following complaints are hereby dismissed for failure to appear/prosecute:

1. Jiyasmin Bantillo 6. Edna Salvante

2. Rosa de Luna Senail 7. Thelma Beltiar

3. Elnor Bandojo 8. Cynthia Cepe

4. Teresa Caldeo 9. Rosie Pavillon

5. Virginia Castroverde

The complaints filed by the following are hereby dismissed for lack of evidence:

1. Aleth Palomaria 5. Mary Ann Beboso

2. Emely Padrones 6. Josefina Tejero

3. Marybeth Aparri 7. Bernadita Aprong

4. Lenia Biona 8. Joji Lull

Respondent agency is liable for twenty eight (28) counts of violation of Article 32 and five (5) counts of Article 34 (a) with a corresponding suspension in the aggregate period of sixty six (66) months. Considering however, that under the schedule of penalties, any suspension amounting to a period of 12 months merits the imposition of the penalty of cancellation, the license of respondent TRANS ACTION OVERSEAS CORPORATION to participate in the overseas placement and recruitment of workers is hereby ordered CANCELLED, effective immediately.

SO ORDERED. 2 (Emphasis supplied)On April 29, 1991, petitioner filed its Motion for Temporary Lifting of Order of Cancellation alleging, among other things, that to deny it the authority to engage in placement and recruitment activities would jeopardize not only its contractual relations with its foreign principals, but also the welfare, interests, and livelihood of recruited workers scheduled to leave for their respective assignments. Finally, it manifested its willingness to post a bond to insure payment of the claims to be awarded, should its appeal or motion be denied.

Finding the motion to be well taken, Undersecretary Confesor provisionally lifted the cancellation of petitioner's license pending resolution of its Motion for Reconsideration filed on May 6, 1991. On January 30, 1992, however, petitioner's motion for reconsideration was eventually denied for lack of merit, and the April 5, 1991, order revoking its license was reinstated.

Petitioner contends that Secretary; Confesor acted with grave abuse of discretion in rendering the assailed orders on alternative grounds, viz.: (1) it is the Philippine Overseas Employment Administration (POEA) which has the exclusive and original jurisdiction to hear and decide illegal recruitment cases, including the authority to cancel recruitment licenses, or (2) the cancellation order based on the 1987 POEA Schedule of Penalties is not valid for non-compliance with the Revised Administrative Code of 1987 regarding its registration with the U.P. Law Center.

Under Executive Order No. 797 3 (E.O. No. 797) and Executive Order No. 247 (E.O. No. 247), 4 the POEA was established and mandated to assume the functions of the Overseas Employment Development Board (OEDB), the National Seamen Board (NSB), and the overseas employment function of the Bureau of Employment Services (BES). Petitioner theorizes that when POEA absorbed the powers of these agencies, Article 35 of the Labor Code, as amended, was rendered ineffective.

The power to suspend or cancel any license or authority to recruit employees for overseas employment is vested upon the Secretary of Labor and Employment. Article 35 of the Labor Code, as amended, which provides:

Art. 5. Suspension and/or Cancellation of License or Authority The Minister of Labor shall have the power to suspend or cancel any license or authority to recruit employees for overseas employment for violation of rules and regulations issued by the Ministry of Labor, the Overseas Employment Development Board, and the National Seamen Board, or for violation of the provisions of this and other applicable laws, General Orders and Letters of Instructions.

In the case of Eastern Assurance and Surety Corp. v. Secretary of Labor, 5 we held that:

The penalties of suspension and cancellation of license or authority are prescribed for violations of the above quoted provisions, among others. And the Secretary of Labor has the power under Section 35 of the law to apply these sanctions, as well as the authority, conferred by Section 36, not only to "restrict and regulate the recruitment and placement activities of all agencies," but also to "promulgate rules and regulations to carry out the objectives and implement the provisions" governing said activities. Pursuant to this rule-making power thus granted, the Secretary of Labor gave the POEA, 6 "on its own initiative or upon filing of a complaint or report or upon request for investigation by any aggrieved person, . . (authority to) conduct the necessary proceedings for the suspension or cancellation of the license or authority of any agency or entity" for certain enumerated offenses including 1) the imposition or acceptance, directly or indirectly, of any amount of money, goods or services, or any fee or bond in excess of what is prescribed by the Administration, and

2) any other violation of pertinent provisions of the Labor Code and other relevant laws, rules and regulations. 7The Administrator was also given the power to "order the dismissal of the case of the suspension of the license or authority of the respondent agency or contractor or recommend to the Minister the cancellation thereof." 8 (Emphasis supplied)

This power conferred upon the Secretary of Labor and Employment was echoed in People v. Diaz, 9 viz.:

A non-licensee or non-holder of authority means any person, corporation or entity which has not been issued a valid license or authority to engage in recruitment and placement by the Secretary of Labor, or whose license or authority has been suspended, revoked or cancelled by the POEA or the Secretary. (Emphasis supplied)

In view of the Court's disposition on the matter, we rule that the power to suspend or cancel any license or authority to recruit employees for overseas employment is concurrently vested with the POEA and the Secretary of Labor.

As regards petitioner's alternative argument that the non-filing of the 1987 POEA Schedule of Penalties with the UP Law Center rendered it ineffective and, hence, cannot be utilized as basis for penalizing them, we agree with Secretary Confesor's explanation, to wit:

On the other hand, the POEA Revised Rules on the Schedule of Penalties was issued pursuant to Article 34 of the Labor Code, as amended. The same merely amplified and particularized the various violations of the rules and regulations of the POEA and clarified and specified the penalties therefore (sic). Indeed, the questioned schedule of penalties contains only a listing of offenses. It does not prescribe additional rules and regulations governing overseas employment but only detailed the administrative sanctions imposable by this Office for some enumerated prohibited acts.

Under the circumstances, the license of the respondent agency was cancelled on the authority of Article 35 of the Labor Code, as amended, and not pursuant to the 1987 POEA Revised Rules on Schedule of Penalties. 10WHEREFORE, in view of the foregoing, the instant petition is hereby DISMISSED. Accordingly, the decision of the Secretary of Labor dated April 5, 1991, is AFFIRMED. No costs.

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

THIRD DIVISION

G.R. No. 125044 July 13, 1998

IMELDA DARVIN, petitioner,

vs.

HON. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

ROMERO, J.:Before us is a petition for review of the decision of the Court of Appeals in C.A.-G.R. No. 15624 dated January 31, 1996, 1 which affirmed in toto the judgment of the Regional Trial Court, Branch 19, Bacoor, Cavite, convicting accused-appellant, Imelda Darvin for simple illegal recruitment under Article 38 and Article 39, in relation to Article 13 (b) and (c), of the Labor Code as amended.

Accused-appellant was charged under the following information:

That on our about the 13th day of April 1992, in the Municipality of Bacoor, Province of Cavite, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, through fraudulent representation to one Macaria Toledo to the effect that she has the authority to recruit workers and employees for abroad and can facilitate the necessary papers in connection thereof, did, then and there, wilfully, unlawfully and feloniously, hire, recruit and promise a job abroad to one Macaria Toledo, without first securing the necessary license and permit from the Philippine Overseas Employment Administration to do so, thereby causing damage and prejudice to the aforesaid Macaria Toledo.

Contrary to law. 2The evidence for the prosecution, based on the testimony of private respondent, Macaria Toledo, shows that sometime in March, 1992, she met accused-appellant Darvin in the latter's residence at Dimasalang, Imus, Cavite, through the introduction of their common friends, Florencio Jake Rivera and Leonila Rivera. In said meeting, accused-appellant allegedly convinced Toledo that by giving her P150,000.00, the latter can immediately leave for the United States without any appearance before the U.S. embassy. 3 Thus, on April 13, 1992, Toledo gave Darvin the amount of P150,000.00, as evidenced by a receipt stating that the "amount of P150,000.00 was for U.S. Visa and Air fare." 4 After receiving the money, Darvin assured Toledo that she can leave within one week. However, when after a week, there was no word from Darvin, Toledo went to her residence to inquire about any development, but could not find Darvin. Thereafter, on May 7, 1992, Toledo filed a complaint with the Bacoor Police Station against Imelda Darvin. Upon further investigation, a certification was issued by the Philippine Overseas Employment Administration (POEA) stating that Imelda Darvin is neither licensed nor authorized to recruit workers for overseas employment. 5 Accused-appellant was then charged for estafa and illegal recruitment by the Office of the Provincial Prosecutor of Cavite.

Accused-appellant, on the other hand, testified that she used to be connected with Dale Travel Agency and that in 1992, or thereabouts, she was assisting individuals in securing passports, visa, and airline tickets. She came to know Toledo through Florencio Jake Rivera, Jr. and Leonila Rivera, alleging that Toledo sought her help to secure a passport, US visa and airline tickets to the States. She claims that she did not promise any employment in the U.S. to Toledo. She, however, admits receiving the amount of P150,000.00 from the latter on April 13, 1992 but contends that it was used for necessary expenses of an intended trip to the United States of Toledo and her friend, Florencio Rivera 6 as follows. P45,000.00 for plane fare for one person; P1,500.00 for passport, documentation and other incidental expenses for each person; P20,000.00 for visa application cost for each person; and P17,000.00 for services. 7 After receiving the money, she allegedly told Toledo that the papers will be released within 45 days. She likewise testified that she was able to secure Toledo's passport on April 20, 1992 and even set up a date for an interview with the US embassy. Accused alleged that she was not engaged in illegal recruitment but merely acted as a travel agent in assisting individuals to secure passports and visa.

In its judgment rendered on June 17, 1993, the Bacoor, Cavite RTC found accused-appellant guilty of the crime of simple illegal recruitment but acquitted her of the crime of estafa. The dispositive portion of the judgment reads as follows:

WHEREFORE, premises considered, accused Imelda Darvin is hereby found guilty beyond reasonable doubt of the crime of Simple Illegal Recruitment for having committed the prohibited practice as defined by paragraph (b) of Article 34 and punished by paragraph (c) of Article 39 of the Labor Code, as amended by PD 2018.

Accused Imelda Darvin is hereby ordered to suffer the prison term of Four (4) years, as minimum, to Eight (8) years, as maximum; and to pay the fine of P25,000.00.

Regarding her civil liability, she is hereby ordered to reimburse the private complainant the sum of P150,000.00 and attorney's fees of P10,000.00.

She is hereby acquitted of the crime of Estafa.

SO ORDERED. 8On appeal, the Court of Appeals affirmed the decision of the trial court in toto, hence this petition.

Before this Court, accused-appellant assails the decision of the trial and appellate courts in convicting her of the crime of simple illegal recruitment. She contends that based on the evidence presented by the prosecution, her guilt was not proven beyond reasonable doubt.

We find the appeal impressed with merit.

Art. 13 of the Labor Code, as amended, provides the definition of recruitment and placement as:

. . .; b) any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers, and includes referrals, contract services, promising or advertising for employment locally or abroad, whether for profit or not: Provided, that any person or entity which, in any manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement.

On the other hand, Article 38 of the Labor Code provides:

a) Any recruitment activities, including the prohibited practices enumerated under Article 34 of this Code, to be undertaken by non-licensees or non-holders of authority shall be deemed illegal and punishable under Article 39 of this Code. The Ministry of Labor and Employment or any law enforcement officer may initiate complaints under this Article.

xxx xxx xxx

Applied to the present case, to uphold the conviction of accused-appellant, two elements need to be shown: (1) the person charged with the crime must have undertaken recruitment activities; and (2) the said person does not have a license or authority to do so. 9In this case, private respondent, Macaria Toledo alleged that she was offered a job in the United States as nursing aide 10 by accused-appellant. In her direct examination, she testified as follows:

Atty. Alejandro:

Q : How did you come to know the accused?

Witness : I was introduced by my two friends. One of whom is my best friend. That according to them, this accused has connections and authorizations, that she can make people leave for abroad, sir.

Court : What connections?

Witness : That she has connections with the Embassy and with people whom she can approach regarding work abroad, your Honor.

xxx xxx xxx

Q : When you came to meet for the first time in Imus, Cavite, what transpired in that meeting of yours?

A : When I came to her house, the accused convinced me that by means of P150,000.00, I will be able to leave immediately without any appearance to any embassy, non-appearance, Sir.

Q : When you mentioned non-appearance, as told to you by the accused, precisely, what do you mean by that?

A : I was told by the accused that non-appearance, means without working personally for my papers and through her efforts considering that she is capacitated as according to her I will be able to leave the country, Sir.

xxx xxx xxx

Atty. Alejandro : What transpired after the accused told you all these things that you will be able to secure all the documents without appearing to anybody or to any embassy and that you will be able to work abroad?

Witness : She told me to get ready with my P150,000.00, that is if I want to leave immediately, Sir.

Atty. Alejandro : When you mentioned kaagad, how many days or week?

Witness : She said that if I will able to part with my P150,000.00. I will be able to leave in just one week time, Sir.

xxx xxx xxx 11The prosecution, as evidence, presented the certification issued by the POEA that accused-appellant Imelda Darvin is not licensed to recruit workers abroad.

It is not disputed that accused-appellant does not have a license or authority to engage in recruitment activities. The pivotal issue to be determined, therefore, is whether the accused-appellant indeed engaged in recruitment activities, as defined under the Labor Code. Applying the rule laid down in the case of People v. Goce, 12 to prove that accused-appellant was engaged in recruitment activities as to commit the crime of illegal recruitment, it must be shown that the accused appellant gave private respondent the distinct impression that she had the power or ability to send the private respondent abroad for work such that the latter was convinced to part with her money in order to be so employed.

In this case, we find no sufficient evidence to prove that accused-ppellant offered a job to private respondent. It is not clear that accused gave the impression that she was capable of providing the private respondent work abroad. What is established, however, is that the private respondent gave accused-appellant P150,000.00. The claim of the accused that the P150,000.00 was for payment of private respondent's air fare and US visa and other expenses cannot be ignored because the receipt for the P150,000.00, which was presented by both parties during the trial of the case, stated that it was "for Air Fare and Visa to USA." 13 Had the amount been for something else in addition to air fare and visa expenses, such as work placement abroad, the receipt should have so stated.

By themselves, procuring a passport, airline tickets and foreign visa for another individual, without more, can hardly qualify as recruitment activities. Aside from the testimony of private respondent, there is nothing to show that accused-appellant engaged in recruitment activities. We also note that the prosecution did not present the testimonies of witnesses who could have corroborated the charge of illegal recruitment, such as Florencio Rivera, and Leonila Rivera, when it had the opportunity to do so. As it stands, the claim of private respondent that accused-appellant promised her employment abroad is uncorroborated. All these, taken collectively, cast reasonable doubt on the guilt of the accused.

This Court can hardly rely on the bare allegations of private respondent that she was offered by accused-appellant employment abroad, nor on mere presumptions and conjectures, to convict the latter. No sufficient evidence was shown to sustain the conviction, as the burden of proof lies with the prosecution to establish that accused-appellant indeed engaged in recruitment activities, thus committing the crime of illegal recruitment.

In criminal cases, the burden is on the prosecution to prove, beyond reasonable doubt, the essential elements of the offense with which the accused i