People vs. Li Ka Kim

A buy-bust sale of shabu is established by the poseur-buyer’s positive identification and the exchange of the drug for buy-bust money; prior surveillance, a test buy, and the informant’s presentation are not indispensable. The death penalty cannot be imposed on the basis of an aggravating circumstance, such as use of a motor vehicle, that is not alleged in the Information.

Li Ka Kim alias Ed was prosecuted for violation of Section 15, Article III, of Republic Act No. 6425, as amended by Republic Act No. 7659, for selling methamphetamine hydrochloride. The penalty provision invoked was Section 16, in relation to Section 17, of Republic Act No. 7659, which authorized reclusion perpetua to death and a fine depending on the quantity of the drug.

At six o’clock on the morning of 19 September 1999, the Regional Intelligence and Investigation Division of the Philippine National Police, Region IV Office at Camp Vicente Lim, Calamba, Laguna, received a report from an informer named “Boy” that a certain alias “Ed,” known to be a drug dealer operating in the southern part of Metro Manila, was looking for a buyer of shabu. At seven-thirty that morning, PO2 Christian Trambulo made initial contact with Ed through a phone call using Boy’s cellular phone, and Boy introduced PO2 Trambulo to Ed as “Rollie,” a buyer of shabu. The parties agreed to meet at the parking space of “McDonald’s” at Uniwide Coastal Mall in Parañaque City between four o’clock and five-thirty in the afternoon, where Ed was supposed to give PO2 Trambulo a kilo of shabu and the latter to pay P400,000.00. After the phone call, PO2 Trambulo was instructed by P/Chief Inspector Julius Caesar Mana to be the poseur-buyer and was given P4,000.00 in four P1,000.00 genuine bills arranged to make it appear as the agreed P400,000.00 in boodle money.

At the agreed time and place, PO2 Trambulo, together with sixteen other RIID officers, waited for appellant. PO2 Trambulo noticed a red Honda Civic car passing several times in front of him, and finally a Chinese-looking man alighted from the driver’s side. Boy introduced PO2 Trambulo to appellant, who introduced himself as Ed using “broken” Tagalog. Ed then gave Rollie a brown paper bag containing a white crystalline substance wrapped in a Christmas wrapper. After looking at the contents and pinching the substance, Rollie gave Ed the buy-bust money. When Ed reached for the money, Rollie informed him that he was a police officer; Police Inspector Emerito Estrada came and informed Ed of his constitutional rights. Appellant was arrested and the boodle money was recovered.

At the trial, PO2 Trambulo pointed to appellant as the seller of the confiscated shabu and positively identified the brown paper bag given to him by appellant, which he marked “CVT,” his initials. Appellant had a different story. Testifying through an interpreter, he claimed to be a Chinese, jobless, born in Fookien, China, unable to speak English or Filipino, who came to the Philippines on a tourist visa on 13 May 1999 upon the invitation of his friend Tan Eng Hong. According to appellant, he stayed with Tan Eng Hong at Room 1003 Gotesco Building, Manila, until 19 September 1999, and denied having been in Southern Tagalog. About two to three o’clock in the afternoon of 19 September 1999, he and Tan Eng Hong went out and took a ride going to the airport; upon arrival, Tan Eng Hong alighted and went inside the mall. While waiting and smoking a cigarette, five persons accosted him, forced him into the car at gunpoint, brought him to a gasoline station where he was frisked but nothing was found on him except a pack of cigarettes, and one of them slapped him after saying “wala.” He was later brought to the police station, where a Chinese woman approached him and, in the presence of three or four police officers, told him that if he could produce P1,000,000.00 for the police officers, he would be allowed to go home. He denied that Trambulo was introduced to him by Boy, whom he did not know.

The trial court debunked appellant’s defense of denial. The trial court found it hard to believe that appellant would be singled out by the police officers from scores of people at the mall where he was arrested and later indicted for selling shabu. Strangely, the trial court observed, appellant’s friend Tan Eng Hong did not appear in court to corroborate his testimony. The trial court likewise noted that the car, as well as the license plate, used by appellant had been stolen, and that appellant was an undocumented alien as shown by the letter dated 13 October 2000 of then Commissioner on Immigration and Deportation Rufus B. Rodriguez to State Prosecutor Reynaldo J. Lugtu.

• Sufficiency of Evidence: Appellant argued that the trial court erred in finding him guilty beyond reasonable doubt of the crime charged.
• Penalty: Appellant argued that, assuming arguendo he was guilty, the trial court nonetheless erred in imposing the supreme penalty of death.
• New Trial / Newly Discovered Evidence: Appellant filed a motion to remand for new trial under Section 14, Rule 121, citing newly discovered evidence, his passport, to establish his true identity as Huang Xiao Wei, a Chinese national who entered the Philippines as a tourist, and invoking his constitutional right to effective counsel because his former counsel failed to secure and present his travel documents.
• Surveillance and Test Buy: Appellant argued that a surveillance or a test buy should have first been conducted.

• Sufficiency of Evidence / Illegal Sale: Whether the prosecution established beyond reasonable doubt all the elements of illegal sale of shabu, despite appellant’s denial and his claim that surveillance or a test buy was necessary.
• New Trial: Whether appellant is entitled to new trial based on newly discovered evidence, his passport, and the alleged failure of his former counsel to present it.
• Penalty: Whether the trial court correctly imposed death based on the use of a motor vehicle as an aggravating circumstance that was not alleged in the Information.

• Sufficiency of Evidence / Illegal Sale: Yes. The SC affirmed the conviction; PO2 Trambulo positively identified appellant as the seller, the buy-bust evidence established the sale, and prior surveillance, a test buy, and the informant’s presentation are not indispensable.
• New Trial: No. The passport was not newly discovered because it could have been produced at trial, and it was immaterial given the positive identification; the SC was not convinced by the ineffective-counsel claim.
• Penalty: No. Death cannot be imposed because the use of a motor vehicle was not alleged in the Information; with no aggravating or mitigating circumstance, Article 63 required the lesser penalty of reclusion perpetua.

• Sufficiency of Evidence / Illegal Sale: The SC found the totality of the evidence convincing and pointed to appellant as a person engaged in the sale of illegal drugs. The testimony of the prosecution witnesses identifying appellant as the seller appeared categorical and unfabricated, and no ill motive was shown to tarnish their testimony. Positive evidence prevailed over mere denial and alibi, which, if not substantiated by clear and convincing evidence, are negative and self-serving. The SC held that prior surveillance and the presentation of the informant are not indispensable requirements in a drug prosecution, and that appellant was caught in flagrante delicto selling 994.773 grams of shabu to the poseur-buyer: he handed over the bag containing shabu in exchange for the buy-bust money and was promptly arrested after being informed of his constitutional rights. The SC also respected the trial court’s credibility findings absent any fact or circumstance of weight and substance that had been overlooked or misinterpreted.

• New Trial: The SC applied the requisites for newly discovered evidence: the evidence must be discovered after trial; it could not have been discovered and produced at the trial even with reasonable diligence; and it must be material, not merely cumulative, corroborative, or impeaching, and of such weight that, if admitted, would likely change the judgment. None of the requisites was attendant. Appellant’s passport could have easily been presented and produced during the trial. Its presentation would hardly be material to the outcome because appellant was positively identified by the prosecution witnesses. Most importantly, appellant identified himself as Li Ka Kim at the trial and not as Huang Xiao Wei, which bolstered the conclusion that he deliberately concealed his true identity.

• Penalty: The SC held that Rule 110 of the Rules on Criminal Procedure requires the recitation in the Information of aggravating or qualifying circumstances in order to be appreciated as such. Sections 8 and 9 require the acts or omissions constituting the offense and the qualifying and aggravating circumstances to be stated in ordinary and concise language. The requirements are mandatory not only to afford the accused the right to object to evidence of aggravating circumstances not alleged, but also to preclude the court from taking them into account. The use of a motor vehicle, which the trial court considered in decreeing death, was inappropriate because it was not alleged in the Information. The SC also held that the Revised Rules on Criminal Procedure, particularly Section 8, Rule 110, must be given retroactive effect to pending actions. The quantity of 994.773 grams of shabu warranted the penalty under Section 16, in relation to Section 17, of Republic Act No. 7659, which ranges from reclusion perpetua to death and a fine from P500,000.00 to P10,000,000.00. Applying Article 63 of the Revised Penal Code, the lesser penalty was imposed because there were neither mitigating nor aggravating circumstances.

• Requisites for newly discovered evidence — To justify a new trial, the evidence must be: (a) discovered after trial; (b) such that it could not have been discovered and produced at the trial even with reasonable diligence; and (c) material, not merely cumulative, corroborative, or impeaching, and of such weight that, if admitted, would likely change the judgment. The SC applied this to deny appellant’s passport-based motion because the passport could have been produced at trial and was immaterial given his positive identification.
• Non-indispensability of surveillance, test buy, and informant — Prior surveillance, a test buy, and the presentation of the informant are not indispensable to a successful drug prosecution. The SC rejected appellant’s contrary argument.
• Positive identification prevails over denial and alibi — Positive testimony of prosecution witnesses, with no shown ill motive, prevails over unsubstantiated denial and alibi. The SC relied on PO2 Trambulo’s identification of appellant.
• Credibility findings of the trial court — An appellate court will not interfere with the trial court’s factual findings absent a fact or circumstance of weight and substance that has been overlooked or misinterpreted. The SC respected the trial court’s credibility assessment.
• Aggravating circumstances must be alleged in the Information — Under Sections 8 and 9, Rule 110, qualifying and aggravating circumstances must be stated in ordinary and concise language; the requirement is mandatory and precludes the court from considering an unalleged aggravating circumstance. The SC thus disregarded the use of a motor vehicle in imposing death.
• Retroactivity of procedural rules — The Revised Rules on Criminal Procedure, particularly Section 8, Rule 110, apply retroactively to pending actions. The SC applied the rule to appellant’s pending appeal.
• Article 63, Revised Penal Code, lesser penalty — When neither mitigating nor aggravating circumstances are present, the lesser penalty is imposed. The SC applied this to reduce death to reclusion perpetua.
• Penalty based on quantity of drugs — The quantity of 994.773 grams of shabu warranted the penalty under Section 16, in relation to Section 17, of Republic Act No. 7659, which ranges from reclusion perpetua to death and a fine from P500,000.00 to P10,000,000.00. The SC used this range and then applied Article 63.

• “The requisites of newly discovered evidence in order to justify a new trial are that - (a) the evidence is discovered after trial; (b) such evidence could not have been discovered and produced at the trial even with the exercise of reasonable diligence; and (c) the evidence is material, not merely cumulative, corroborative, or impeaching, and of such weight that, if admitted, would likely change the judgment.” — The SC stated the requisites for new trial before denying appellant’s passport-based motion.
• “Neither a prior surveillance of the suspected offender nor the presentation of the informant would be an indispensable requirement to the successful prosecution of a drug case.” — The SC rejected appellant’s argument that surveillance or a test buy was required.
• “The use of a motor vehicle considered by the trial court in decreeing the death penalty is inappropriate, that aggravating circumstance not having been aptly alleged in the Information.” — The SC invalidated the death penalty because the aggravating circumstance was not alleged.
• “The requirements are mandatory not only to afford the accused the right to object to the presentation of evidence showing such aggravating circumstances not so alleged but also to preclude the court from even taking such aggravating circumstances into account.” — The SC explained why an unalleged aggravating circumstance cannot be considered.

• People vs. Tirona, G.R. No. 128907, 22 December 1998, 300 SCRA 431 — Cited for the requisites of newly discovered evidence.
• People vs. Lacbanes, G.R. No. 88684, 20 March 1997, 270 SCRA 193 — Cited for the rule that prior surveillance is not indispensable in a drug prosecution.
• People vs. Cheng Ho Chua, G.R. No. 127542, 18 March 1999, 305 SCRA 28 — Cited for the rule that presentation of the informant is not indispensable.
• People vs. Enolva, G.R. Nos. 131633-34, 25 January 2000, 323 SCRA 295 — Cited for deference to the trial court’s credibility findings absent overlooked facts.
• People vs. Arrojado, G.R. No. 130492, 31 January 2001, 350 SCRA 679 — Cited for retroactive application of the Revised Rules on Criminal Procedure to pending cases.
• People vs. Atop, G.R. Nos. 124303-05, 10 February 1998, 286 SCRA 157 — Cited for applying Article 63, Revised Penal Code, to impose the lesser penalty when no mitigating or aggravating circumstances are present.
• People vs. Naguita, G.R. No. 130091, 30 August 1999, 313 SCRA 292 — Cited for the rule that positive evidence prevails over denial and alibi.
• People vs. Chen Tiz Chang, G.R. Nos. 131872-73, 17 February 2000, 325 SCRA 776 — Cited for the elements stated in the text regarding illegal possession of dangerous drugs.

• Section 15, Article III, Republic Act No. 6425, as amended by Republic Act No. 7659 — The Information charged violation of this provision for selling 994.773 grams of methamphetamine hydrochloride; the SC affirmed the conviction under it.
• Section 16, in relation to Section 17, Republic Act No. 7659 — The SC applied this penalty provision because the quantity seized was 994.773 grams, authorizing reclusion perpetua to death and a fine from P500,000.00 to P10,000,000.00.
• Article 63, Revised Penal Code — With neither mitigating nor aggravating circumstances, the lesser penalty was imposed, reducing death to reclusion perpetua.
• Section 14, Rule 121, Rules on Criminal Procedure — Appellant invoked this for new trial based on newly discovered evidence; the SC denied it for failure to satisfy the requisites.
• Sections 8 and 9, Rule 110, Rules on Criminal Procedure — These require the Information to state qualifying and aggravating circumstances in ordinary and concise language; the SC held the use of a motor vehicle could not be appreciated because it was not alleged.