Liong vs. People

The right to confront and cross-examine witnesses is a personal constitutional right that may be waived by the accused through conduct amounting to a renunciation of the right, such as repeatedly failing to avail of opportunities to cross-examine through frequent changes of counsel and causing unwarranted delays; mere opportunity, rather than actual cross-examination, constitutes the essence of this right.

Kim Liong was charged with estafa for allegedly defrauding Equitable PCI Bank by failing to return US$50,955.70 that the bank had erroneously deposited into his dollar savings account. Instead of informing the bank of the error, Liong allegedly withdrew the full amount and misappropriated it for his personal use despite repeated demands for its return.

• Kim Liong was charged with estafa under an Information dated January 28, 2002, for allegedly defrauding Equitable PCI Bank of US$50,955.70, which was erroneously credited to his dollar account, by withdrawing the amount and refusing to return it despite demand.
• Liong was arraigned on January 20, 2003, pleading not guilty, and pre-trial was terminated on July 13, 2004.
• The prosecution's first witness, Antonio Dela Rama, was presented on June 8, 2006, and his direct examination was terminated on January 25, 2007.
• The initial date for cross-examination was set for March 15, 2007, but was reset when Atty. Danilo Banares appeared as collaborating counsel for Liong's counsel of record, Atty. Jovit Ponon.
• On April 19, 2007, the hearing was reset because Liong terminated the services of Atty. Ponon, alleging he was a fraternity brother of the private prosecutor.
• Subsequent hearings were reset due to various reasons: witness Dela Rama suffered a stroke (July 31, 2008), Liong was indisposed (April 17, 2008), and counsel Atty. Banares failed to appear (February 5, 2009 and August 27, 2009).
• On August 27, 2009, the trial court granted the private prosecutor's motion and declared Liong to have waived his right to cross-examine Dela Rama due to counsel's absence and the repeated delays.
• Liong had a history of frequently changing counsel, having been previously admonished by the trial court in an October 8, 2003 Order for this practice.

• The petitioner argued that only four out of thirteen resettings of the cross-examination were attributable to him, while the rest were due to reasons beyond his control, such as witness Dela Rama's stroke, the absence of the public prosecutor, or the trial judge's leave.
• He claimed that his former counsel, Atty. Banares, was grossly negligent for repeatedly failing to attend hearings, and that such negligence should not bind him.
• He contended that the waiver order was made in open court when his counsel was absent, depriving him of the opportunity to oppose the motion.
• He asserted that Dela Rama was a vital witness for the prosecution, and allowing his testimony to remain on record without cross-examination would violate petitioner's constitutional right to confrontation and cause extreme prejudice to the defense.

• The respondent argued that the petition raised questions of fact regarding which resettings were attributable to the petitioner, which are not allowed in a Rule 45 Petition for Review on Certiorari as the Supreme Court is not a trier of facts.
• It contended that the negligence of counsel was not gross but rather part of a pattern of dilatory tactics, including the frequent changing of counsels, which benefited the petitioner.
• It maintained that the trial court correctly declared the right to cross-examine waived because the petitioner was given more than sufficient opportunity but failed to avail of it through his own conduct and that of his counsel.

• Procedural:
  • Whether the Petition for Review on Certiorari should be denied for raising factual issues regarding the attribution of hearing cancellations.
• Substantive Issues:
  • Whether the trial court gravely abused its discretion in declaring as waived petitioner Kim Liong's right to cross-examine prosecution witness Antonio Dela Rama.

• Procedural:
  • The Supreme Court held that while Rule 45 petitions generally raise only questions of law, it may review factual issues if specific exceptions apply (e.g., grave abuse of discretion, findings grounded on speculation, etc.).
  • The Court found that none of the exceptions applied; however, even if the factual allegations of the petitioner were considered, the result would be the same, thus the petition must be denied.
• Substantive:
  • The Court affirmed that the right to confront and cross-examine witnesses is a fundamental constitutional right under Article III, Section 14(2) of the Constitution and Rule 115, Section 1(f) of the Rules of Court.
  • The Court ruled that this right is personal to the accused and may be waived expressly or impliedly by conduct amounting to a renunciation of the right.
  • The Court held that the essence of the right is the opportunity to cross-examine, not the actual cross-examination itself; when an accused fails to avail himself of this opportunity, he is deemed to have waived it.
  • The Court found that the trial court did not gravely abuse its discretion, as the records showed a pattern of delays caused by the petitioner's frequent changes of counsel and counsel's absences, constituting an implied waiver.
  • The Court emphasized that the State also has a right to due process and should not be denied the ability to prove its case through the accused's machinations and dilatory tactics.

• Waiver of the Right to Cross-Examination — The right to confront and cross-examine is personal to the accused and may be waived expressly or impliedly by conduct amounting to a renunciation of the right; the witness's direct examination testimony remains admissible if the accused had the opportunity to cross-examine but failed to avail of it.
• Essence of the Right to Cross-Examine — Mere opportunity and not actual cross-examination is the essence of the right to cross-examine; the right is satisfied when the accused is given the chance to cross-examine but chooses not to or fails to do so.
• Negligence of Counsel Binds the Client — The negligence of counsel binds the client, and only gross negligence of counsel excusing the client from the effects of such negligence would warrant relief; in this case, the Court found the delay was attributable to the accused's own conduct, not gross negligence.
• State's Right to Due Process — The right of the accused to confrontation does not exist in isolation; the State, representing the people, also has the right to due process and must not be unreasonably denied the ability to prove its case through the accused's dilatory tactics.

• "The right to confront and cross-examine an adverse witness is a basic fundamental constitutional right. However, this is personal to the accused, who can waive the right."
• "Mere opportunity and not actual cross-examination is the essence of the right to cross-examine."
• "When an accused is given the opportunity to cross-examine a witness but fails to avail of it, the accused shall be deemed to have waived this right."
• "The right to confront and cross-examine witnesses is a basic, fundamental human right vested inalienably to an accused... However, this right does not exist in isolation. The State, representing the people that may have been wronged by a crime, also has the right to due process."
• "When the accused abuses its option to choose his counsel as in this case, he can be deemed to have waived his right to confrontation and cross-examination."

• People v. Narca, 341 Phil. 696 (1997) — Cited for the doctrine that mere opportunity, not actual cross-examination, is the essence of the right to cross-examine, and that waiver occurs when the accused moves for postponement causing the delay.
• Gimenez v. Nazareno, 243 Phil. 274 (1988) — Cited for the principle that an escapee who is tried in absentia waives the rights to confront and cross-examine witnesses.
• People v. Givera, 402 Phil. 547 (2001) — Cited for the rule that uncompleted testimony is rendered incompetent if cross-examination cannot be done due to causes attributable to the party offering the witness.
• Savory Luncheonette v. Lakas ng Manggagawang Pilipino, 159 Phil. 310 (1975) — Cited regarding the waiver of the right to cross-examine.
• Carbonell v. Carbonell-Mendes, 762 Phil. 529 (2015) — Cited to emphasize that the Supreme Court is not a trier of facts.

• 1987 Constitution, Article III, Section 14(2) — Guarantees the right of the accused in criminal prosecutions to meet the witnesses face to face (confrontation clause).
• Rules of Court, Rule 115, Section 1(f) — Entitles the accused to confront and cross-examine the witnesses against him at the trial.
• Rules of Court, Rule 132, Section 6 — Defines the scope and purpose of cross-examination.
• Rules of Court, Rule 45, Section 1 — Provides that petitions for review on certiorari shall raise only questions of law.