Okabe vs. Gutierrez

A judge must personally determine the existence of probable cause for the issuance of a warrant of arrest based on sufficient supporting documents, and cannot rely solely on the investigating prosecutor's resolution and certification. The posting of bail by the accused does not constitute a waiver of the right to question the validity of the arrest or the legality of the warrant issued therefor, provided the objection is raised before entering a plea.

Cecilia Maruyama filed an affidavit-complaint with the Office of the City Prosecutor of Pasay City charging Lorna Tanghal and petitioner Teresita Tanghal Okabe with estafa. The petitioner was engaged in the business of "door-to-door delivery" from Japan to the Philippines, and the complaint alleged that she failed to deliver money entrusted to her for delivery to the Philippines. The case involved the application of constitutional requirements on the issuance of warrants of arrest under Section 2, Article III of the 1987 Constitution, and the procedural rules under Rule 112 of the Rules of Court governing preliminary investigation and the determination of probable cause by the trial court.

Cecilia Maruyama executed a fifteen-page affidavit-complaint and filed it with the Office of the City Prosecutor of Pasay City on December 29, 1999, charging Lorna Tanghal and petitioner Teresita Tanghal Okabe, a.k.a. Shiela Okabe, with estafa. Maruyama alleged that on December 11, 1998, she entrusted Y11,410,000, with a peso equivalent of P3,993,500, to the petitioner, who was engaged in the business of "door-to-door delivery" from Japan to the Philippines. The petitioner allegedly failed to deliver the money as agreed upon, at first denied receiving the amount, but later returned only US$1,000 through Lorna Tanghal.

During the preliminary investigation, Maruyama submitted the affidavits of her witnesses, namely Hermogena Santiago, Wilma Setsu, and Marilette G. Izumiya, and other documentary evidence. Setsu alleged that the money entrusted to the petitioner belonged to her, her sister Annie Hashimoto, and their mother Hermogena Sanchez-Quicho, who joined Maruyama in the complaint. After the preliminary investigation, 2nd Assistant City Prosecutor Joselito J. Vibandor issued a resolution dated March 30, 2000, finding probable cause for estafa against the petitioner. The city prosecutor approved the resolution and the Information dated March 30, 2000 attached thereto.

On May 15, 2000, an Information against the petitioner was filed in the Regional Trial Court of Pasay City, docketed as Criminal Case No. 00-0749, and raffled to Branch 119 presided by Judge Pedro de Leon Gutierrez. The accusatory portion of the Information alleged that the petitioner received in trust from Cecilia Maruyama the amount of Japanese Yen 1141 (sic) with peso equivalent to P3,839,465.00 under obligation to deliver the money to Conchita Quicho at the NAIA International Airport, Pasay City, but instead misappropriated and converted the amount to her own personal benefit. Appended to the Information were only the affidavit-complaint of Maruyama and the resolution of Investigating Prosecutor Vibandor.

On May 19, 2000, the trial court issued a warrant for the arrest of the petitioner with a recommended bond of P40,000. On June 15, 2000, the petitioner posted a personal bail bond in the said amount, duly approved by Judge Demetrio B. Macapagal of Branch 79, RTC of Quezon City, who recalled the warrant. Upon her request, the petitioner was furnished with a certified copy of the Information, the resolution, and the criminal complaint which formed part of the records of the case. The petitioner left the Philippines for Japan on June 17, 2000 without the trial court's permission, returned on June 28, 2000, left anew on July 1, 2000, and returned on July 12, 2000.

On July 14, 2000, the trial court issued an Order setting the petitioner's arraignment and pre-trial at 2:00 p.m. of July 16, 2000. On the same day, the private prosecutor filed an urgent ex parte motion for the issuance of a hold departure order, alleging that the petitioner had businesses in Japan and would soon exit Japan and enter the Philippines to attend a wedding of her son or daughter, and that given the low bail and the petitioner's financial capability, she would readily post bond and leave for Japan, frustrating the administration of criminal justice. The trial court granted the motion on the same day and ordered the Commission on Immigration and Deportation to hold and prevent any attempt by the petitioner to depart from the Philippines.

For her part, the petitioner filed on July 17, 2000 a verified motion for judicial determination of probable cause and to defer proceedings/arraignment, alleging that the only documents appended to the Information were Maruyama's affidavit-complaint and the resolution of the investigating prosecutor, without the affidavits of the complainant's witnesses, the petitioner's counter-affidavit, and other evidence adduced by the parties. On July 19, 2000, the petitioner filed a Very Urgent Motion To Lift/Recall Hold Departure Order and/or allow her to regularly travel to Japan, alleging that she was a widow and the legitimate mother of three children, two of whom were still minors residing in Japan, that she had to attend a Parents Teachers Association meeting at her sons' high school, that her minor children absolutely depended on her for support, and that her only source of income and livelihood was door-to-door delivery from Japan to the Philippines.

The private prosecutor opposed the petitioner's motions during the hearing on July 21, 2000, which was also the date set for her arraignment. The hearing of the motions and the arraignment were reset to July 26, 2000, on which date the petitioner filed a manifestation objecting to her arraignment prior to the resolution of her pending motions. The arraignment was again reset to August 28, 2000. On August 25, 2000, the petitioner filed a motion for postponement of her arraignment, alleging that in case the trial court ruled adversely thereon, she would refuse to enter a plea and seek relief from the appellate court. The court denied the petitioner's motions on the grounds that: (a) based on its personal examination of the Information, the affidavit-complaint, and the resolution of the investigating prosecutor, it found probable cause for the petitioner's arrest, and the motion for determination of probable cause was a mere surplusage since the court had already found probable cause and issued a warrant; (b) by posting bail, the petitioner waived her right to question the court's finding of probable cause and submitted herself to the jurisdiction of the court; and (c) the hold departure order was in accord with Supreme Court Circular No. 39-97 and the ruling in Manotoc, Jr. vs. Court of Appeals.

When the case was called for the petitioner's arraignment at 2:00 p.m. on August 28, 2000, she refused to plead. Her counsel advised her, in open court, not to enter a plea and, with leave of court, left the courtroom. The court then entered a not guilty plea for the petitioner and issued an order setting the pre-trial and initial presentation of the evidence of the prosecution at 8:30 a.m. of September 20, 2000.

The petitioner then filed with the Court of Appeals a petition for certiorari under Rule 65 with a plea for a writ of preliminary injunction, docketed as CA-G.R. SP No. 60732. On January 31, 2001, the CA rendered a Decision partially granting the petition, setting aside the assailed order denying the petitioner's motion to lift/recall the hold departure order, but denying the petition for nullification of the August 25, 2000 Order. The CA ruled that by posting bail and praying for reliefs from the trial court, the petitioner waived her right to assail the respondent judge's finding of probable cause, citing Cojuangco, Jr. vs. Sandiganbayan. The appellate court allowed the petitioner to travel to Japan under conditions, including posting a bond double the amount of her alleged monetary liability, informing the court of her travel itinerary, making periodic reports, and furnishing the court with her addresses. The appellate court did not resolve the issue of whether the trial court had prejudged the case and was partial to the prosecution.

On March 6, 2001, the petitioner filed a motion for partial reconsideration, contending that the appellate court erred in applying Cojuangco, Jr. vs. Court of Appeals instead of Section 26, Rule 114 of the Revised Rules on Criminal Procedure, which took effect on December 1, 2000, before the court rendered its decision. The appellate court held that Section 26, Rule 114 could not be applied retroactively because the petitioner had posted bail on June 15, 2000, before the Revised Rules on Criminal Procedure took effect.

• Application of Section 26, Rule 114: Petitioner argued that the Court of Appeals committed reversible error in disregarding the application of Section 26, Rule 114 of the Revised Rules on Criminal Procedure, which took effect on December 1, 2000, and which is favorable to the accused, and that the appellate court should have applied the same retroactively as it rendered the ruling in Cojuangco, Jr. obsolete.
• Waiver by Posting Bail: Petitioner argued that the appellate court erred in ruling that whatever infirmity there was in the issuance of the warrant of arrest was cured when she voluntarily submitted to the trial court's jurisdiction by posting bail and filing motions seeking affirmative relief, as there must be clear and convincing proof of an actual intention to relinquish the right to question the existence of probable cause.
• Insufficient Basis for Probable Cause: Petitioner argued that the respondent judge could not have determined the existence of probable cause for her arrest solely on the resolution of the investigating prosecutor and the undated affidavit-complaint of Maruyama, and that the judge should have ordered the investigating prosecutor to submit the affidavits of the witnesses, the counter-affidavit of the petitioner, and the transcripts of stenographic notes, conformably to the rulings in Lim vs. Felix, Roberts, Jr. vs. Court of Appeals, and Ho vs. People.
• Grave Abuse of Discretion: Petitioner argued that the respondent judge acted with grave abuse of discretion amounting to excess or lack of jurisdiction in denying her motion for a determination of probable cause and the alternative motion for dismissal of the case for lack of probable cause.
• Partiality and Due Process: Petitioner argued that the appellate court erred in failing to rule on the partiality of the respondent judge in handling the case below, which is violative of her right to due process.
• Non-Forum Shopping: Petitioner argued that the filing of Criminal Case No. 4297 (MTC, Angat, Bulacan), Civil Case No. 331-M-98 (RTC, Malolos, Bulacan), and Criminal Case No. 00-07-19 (RTC, Pasay City, Branch 119) constituted a violation of the rule on non-forum shopping.

• Application of Section 26, Rule 114: The Office of the Solicitor General contended that the Court of Appeals did not commit a reversible error in not applying Section 26, Rule 114 of the Revised Rules on Criminal Procedure.
• Waiver by Posting Bail: The OSG contended that the appellate court did not commit a reversible error in ruling that the infirmity, if any, in the issuance of the warrant of arrest was cured when the petitioner voluntarily submitted to the trial court's jurisdiction by posting bail and filing motions seeking affirmative reliefs.
• Applicability of Cojuangco: The OSG contended that the appellate court did not commit a reversible error in applying the ruling in the Cojuangco case.
• Compliance with Constitutional Requirements: The OSG contended that the respondent judge complied with the constitutional requirements on the issuance of a warrant of arrest, having personally determined the existence of probable cause independently of the certification of the investigating prosecutor, and after examining the Information, the resolution of the investigating prosecutor, and the affidavit-complaint of the private complainant, which documents are sufficient on which to anchor a finding of probable cause.
• Failure to Rule on Partiality: The OSG contended that the appellate court did not commit a reversible error when it did not rule on the partiality of the respondent judge.
• Non-Forum Shopping: The OSG contended that the appellate court did not commit a reversible error when it did not rule on the petitioner's claim of forum shopping.

• Application of Section 26, Rule 114: Whether the Court of Appeals erred in not applying Section 26, Rule 114 of the Revised Rules on Criminal Procedure, which took effect on December 1, 2000, to the petitioner's case.
• Waiver by Posting Bail: Whether the petitioner's posting of bail and filing of motions seeking affirmative relief constituted a waiver of her right to question the validity of her arrest and the legality of the warrant issued therefor.
• Sufficiency of Basis for Probable Cause: Whether the respondent judge committed grave abuse of discretion amounting to excess or lack of jurisdiction in finding probable cause for the petitioner's arrest based solely on the investigating prosecutor's resolution and the affidavit-complaint of the private complainant, without the supporting documents required by Section 8(a), Rule 112 of the Revised Rules on Criminal Procedure.
• Partiality and Due Process: Whether the respondent judge exhibited partiality towards the prosecution and against the petitioner, violative of her right to due process.
• Non-Forum Shopping: Whether the filing of multiple cases against the petitioner constituted a violation of the rule on non-forum shopping.

• Application of Section 26, Rule 114: Yes. The Court of Appeals erred in not applying Section 26, Rule 114 of the Revised Rules on Criminal Procedure. The new rule is curative in nature and procedural rules generally operate retroactively to cases pending at the time of their effectivity, including actions yet undetermined at the time of their effectivity.
• Waiver by Posting Bail: No. The posting of bail by the petitioner was a matter of imperative necessity to avert her incarceration and should not be deemed a waiver of her right to assail her arrest. There must be clear and convincing proof of an actual intention to relinquish the right to question the existence of probable cause.
• Sufficiency of Basis for Probable Cause: Yes. The respondent judge committed grave abuse of discretion amounting to excess or lack of jurisdiction in finding probable cause for the petitioner's arrest in the absence of copies of the affidavits of the witnesses of the private complainant, her reply affidavit, the counter-affidavit of the petitioner, and the evidence adduced during the preliminary investigation, as required by Section 8(a), Rule 112 of the Revised Rules on Criminal Procedure.
• Partiality and Due Process: N/A. The Court found no need to resolve the other issues raised by the petitioner in view of the foregoing disquisitions.
• Non-Forum Shopping: N/A. The Court found no need to resolve the other issues raised by the petitioner in view of the foregoing disquisitions.

• Application of Section 26, Rule 114: Section 26, Rule 114 of the Revised Rules on Criminal Procedure provides that an application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefor, or from assailing the regularity or questioning the absence of a preliminary investigation, provided that he raises them before entering his plea. The Court noted that this new rule was intended to modify previous rulings that an application for bail or admission to bail by the accused shall be considered a waiver of his right to assail the warrant issued for his arrest. The new rule reverted to the ruling in People vs. Red. The Court held that the new rule is curative in nature because it was designed to supply defects and curb evils in procedural rules, and curative statutes are by their essence retroactive in application. Procedural rules, as a general rule, operate retroactively even without express provisions to that effect, to cases pending at the time of their effectivity. Since the Revised Rules on Criminal Procedure was already in effect before the appellate court rendered its decision on January 31, 2001, it behooved the appellate court to have applied the same in resolving the petitioner's petition for certiorari and her motion for partial reconsideration.

• Waiver by Posting Bail: The Court held that considering the conduct of the petitioner after posting her personal bail bond, it cannot be argued that she waived her right to question the finding of probable cause and to assail the warrant of arrest. There must be clear and convincing proof that the petitioner had an actual intention to relinquish her right to question the existence of probable cause. When the only proof of intention rests on what a party does, his act should be so manifestly consistent with, and indicative of, an intent to voluntarily and unequivocally relinquish the particular right that no other explanation of his conduct is possible. The records show that a warrant was issued by the respondent judge in Pasay City for the arrest of the petitioner, a resident of Guiguinto, Bulacan. When the petitioner learned of the issuance of the warrant, she posted a personal bail bond to avert her arrest and secure her provisional liberty. The posting of a personal bail bond was a matter of imperative necessity to avert her incarceration; it should not be deemed as a waiver of her right to assail her arrest, as ruled in People vs. Red. Moreover, the next day after receiving certified true copies of the Information, the resolution, and the affidavit-complaint, the petitioner filed a verified motion for judicial determination of probable cause and to defer the proceedings and her arraignment. All the foregoing are inconsistent with a waiver of her right to assail the validity of her arrest. Neither can the petitioner's filing of a motion for the lifting of the hold departure order and for leave to go to Japan be considered a waiver, as her motion for a determination of probable cause was still unresolved when she filed the motion to lift the hold departure order.

• Sufficiency of Basis for Probable Cause: The Court held that before the RTC judge issues a warrant of arrest under Section 6, Rule 112 of the Rules of Court in relation to Section 2, Article III of the 1987 Constitution, the judge must make a personal determination of the existence or non-existence of probable cause for the arrest of the accused. The duty to make such determination is personal and exclusive to the issuing judge. He cannot abdicate his duty and rely on the certification of the investigating prosecutor. The certification of the investigating prosecutor is, by itself, ineffective and not binding on the trial court. In determining the existence or non-existence of probable cause, the judge should not rely solely on the report of the investigating prosecutor, but should consider not only the report but also the affidavits and documentary evidence of the parties, the counter-affidavit of the accused and his witnesses, as well as the transcript of stenographic notes taken during the preliminary investigation, if any, submitted to the court by the investigating prosecutor upon the filing of the Information. The Court cited Ho vs. People, which held that the judge must have sufficient supporting documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcripts of stenographic notes, if any) upon which to make his independent judgment or, at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause. These rulings are now embedded in Section 8(a), Rule 112 of the Revised Rules on Criminal Procedure, which provides that an Information or complaint filed in court shall be supported by the affidavits and counter-affidavits of the parties and their witnesses, together with the other supporting evidence and the resolution on the case. In this case, the investigating prosecutor submitted to the respondent judge only his resolution and the affidavit-complaint of the private complainant, and failed to include the affidavits of the witnesses of the private complainant, her reply affidavit, the counter-affidavit of the petitioner, and the evidence adduced by the private complainant. The Court enumerated several matters showing the vital importance of these documents: (1) Maruyama did not require the petitioner to sign a document acknowledging receipt of the money; (2) the affidavit of Hermogena Santiago was based on information relayed to her by Lorna Tanghal, who failed to submit any counter-affidavit; (3) the affidavit of Marilette G. Izumiya was based on information relayed to her by Thelma Barbiran, who did not execute any affidavit; (4) there was no indication in the resolution that the petitioner received the fax message of Lorna Tanghal; (5) the document evidencing the remittance of US$1,000 was signed by Lorna Tanghal, not by the petitioner; (6) the petitioner alleged that Maruyama had no case against her because the crime charged was the same as that filed against her in the Metropolitan Trial Court of Bulacan, which was withdrawn; and (7) the investigating prosecutor stated that the private complainant established the element of deceit, but the crime charged in the Information is estafa with abuse of confidence. The Court found and declared that the respondent judge committed grave abuse of discretion amounting to excess or lack of jurisdiction in finding probable cause for the petitioner's arrest in the absence of these documents.

• Personal determination of probable cause by the judge — The duty of the judge to determine the existence of probable cause for the issuance of a warrant of arrest is personal and exclusive to the issuing judge. He cannot abdicate this duty and rely solely on the certification of the investigating prosecutor. The judge must have sufficient supporting documents upon which to make his independent judgment or, at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause. In this case, the respondent judge committed grave abuse of discretion in finding probable cause based solely on the investigating prosecutor's resolution and the affidavit-complaint, without the supporting affidavits and evidence required by Section 8(a), Rule 112 of the Revised Rules on Criminal Procedure.

• Bail not a bar to objections on illegal arrest — Under Section 26, Rule 114 of the Revised Rules on Criminal Procedure, an application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefor, or from assailing the regularity or questioning the absence of a preliminary investigation, provided that he raises them before entering his plea. This new rule modified previous rulings that application for bail or admission to bail constitutes a waiver of the right to assail the warrant. The Court applied this rule retroactively, as it is curative in nature and procedural rules generally operate retroactively to cases pending at the time of their effectivity.

• Waiver requires clear and convincing proof — There must be clear and convincing proof that the accused had an actual intention to relinquish the right to question the existence of probable cause. When the only proof of intention rests on what a party does, his act should be so manifestly consistent with, and indicative of, an intent to voluntarily and unequivocally relinquish the particular right that no other explanation of his conduct is possible. The posting of bail to avert incarceration is a matter of imperative necessity and should not be deemed a waiver of the right to assail the arrest.

• "The duty to make such determination is personal and exclusive to the issuing judge. He cannot abdicate his duty and rely on the certification of the investigating prosecutor that he had conducted a preliminary investigation in accordance with law and the Rules of Court, as amended, and found probable cause for the filing of the Information." — This passage articulates the core constitutional duty of the judge in determining probable cause for the issuance of a warrant of arrest, which is the central ratio decidendi of the case.

• "What is required, rather, is that the judge must have sufficient supporting documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcripts of stenographic notes, if any) upon which to make his independent judgment or, at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause. The point is: he cannot rely solely and entirely on the prosecutor's recommendation, as Respondent Court did in this case." — This quotation from Ho vs. People, adopted by the Court, defines the standard for what documents the judge must examine in determining probable cause, and is frequently cited in subsequent jurisprudence on warrants of arrest.

• "There must be clear and convincing proof that the petitioner had an actual intention to relinquish her right to question the existence of probable cause. When the only proof of intention rests on what a party does, his act should be so manifestly consistent with, and indicative of, an intent to voluntarily and unequivocally relinquish the particular right that no other explanation of his conduct is possible." — This passage establishes the standard for determining whether an accused has waived the right to question the existence of probable cause, and was applied to hold that posting bail to avert incarceration does not constitute such waiver.

• "The new rule is curative in nature because precisely, it was designed to supply defects and curb evils in procedural rules. Hence, the rules governing curative statutes are applicable. Curative statutes are by their essence retroactive in application." — This passage explains why Section 26, Rule 114 of the Revised Rules on Criminal Procedure should be applied retroactively to cases pending at the time of its effectivity, including the petitioner's case.

• People vs. Red, 55 Phil. 706 (1931) — Controlling precedent reverted to by Section 26, Rule 114 of the Revised Rules on Criminal Procedure. The Court quoted this case to support the ruling that the furnishing of a bond prompted by the sheer necessity of not remaining in detention does not imply a waiver of any right, such as the summary examination of the case before detention.

• Ho vs. People, 280 SCRA 365 (1997) — Followed. The Court quoted extensively from this case to define the standard that the judge must have sufficient supporting documents upon which to make his independent judgment or to verify the findings of the prosecutor as to the existence of probable cause, and that the judge cannot rely solely and entirely on the prosecutor's recommendation.

• Cojuangco, Jr. vs. Sandiganbayan, 300 SCRA 367 (1998) — Distinguished. The Court of Appeals relied on this case in ruling that posting bail constituted a waiver of the right to assail the finding of probable cause. The Supreme Court held that Section 26, Rule 114 of the Revised Rules on Criminal Procedure had modified previous rulings, including the Cojuangco case, and that the appellate court should have applied the new rule.

• Webb vs. De Leon, 247 SCRA 652 (1995) — Cited to define probable cause as such set of facts and circumstances which would lead a reasonably discreet and prudent man to believe that the offense charged has been committed by the person sought to be arrested, and to support the ruling that the judge just personally reviews the initial determination of the investigating prosecutor to see if it is supported by substantial evidence.

• Soliven vs. Makasiar — Cited as one of the cases whose rulings are now embodied in Section 6, Rule 112 of the Revised Rules on Criminal Procedure, regarding the judge's duty to personally evaluate the resolution of the prosecutor and its supporting evidence.

• Lim vs. Felix, 194 SCRA 292 (1991) — Cited to support the ruling that the judge may even call the complainant and his witnesses to answer the court's probing questions to determine the existence of probable cause.

• Roberts, Jr. vs. Court of Appeals, 254 SCRA 307 (1996) — Cited by the petitioner to support her argument that the investigating prosecutor should have submitted the affidavits of the witnesses, the counter-affidavit, and the transcripts of stenographic notes to the trial court.

• Section 2, Article III, 1987 Constitution — The constitutional provision requiring that no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce. The Court held that the respondent judge failed in his bounden duty by relying merely on the certification or report of the investigating officer.

• Section 6, Rule 112, Revised Rules on Criminal Procedure — Provides that within ten days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence, and may immediately dismiss the case if the evidence on record clearly fails to establish probable cause, or issue a warrant of arrest if he finds probable cause. The Court noted that the rulings in Soliven vs. Makasiar and Lim vs. Felix are now embodied in this section.

• Section 8(a), Rule 112, Revised Rules on Criminal Procedure — Provides that an Information or complaint filed in court shall be supported by the affidavits and counter-affidavits of the parties and their witnesses, together with the other supporting evidence and the resolution on the case. The Court held that the investigating prosecutor failed to comply with this requirement, and the respondent judge committed grave abuse of discretion in finding probable cause without these documents.

• Section 26, Rule 114, Revised Rules on Criminal Procedure — Provides that an application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefor, or from assailing the regularity or questioning the absence of a preliminary investigation, provided that he raises them before entering his plea. The Court held that this new rule is curative in nature and should be applied retroactively.

• Quisumbing, J. (Acting Chairman)
• Austria-Martinez, J.
• Tinga, J.