[G.R. No. 148586.
PEOPLE OF THE PHILIPPINES, appellee, vs. LI KA KIM alias ED, appellant.
D E C I S I O N
Faced with the grim scenario of having to suffer the extreme penalty of death, appellant is now before this Court urging to overturn his conviction for violation of Section 15, Article III, of Republic Act No. 6425, as so amended by Republic Act 7659.
The Information filed against appellant was to the following effect; viz:
That on or about September 19, 1999, in Paranaque City, Philippines, and within the jurisdiction of this Honorable Court, accused Li Ka Kim alias Ed, for the amount of Four Hundred Thousand (P400,000.00) Pesos, Philippine currency, did then and there, willfully, unlawfully and feloniously, sell, deliver and give away to a poseur-buyer, NINE HUNDRED NINETY FOUR POINT SEVEN SEVEN THREE (994.773) grams of Methamphetamine Hydrochloride commonly know as `Shabu, a regulated drug without authority of law or the corresponding license therefor.
Appellant, acting upon advice of counsel, did not enter any plea during his arraignment; the court was thus constrained to enter a plea of not guilty in his behalf.
The prosecution presented its evidence.
At six oclock on the morning of 19 September 1999, the Regional
Intelligence and Investigation Division (RIID) 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, an
officer of RIID, made initial contact with Ed through
a phone call using Boys cellular phone.
Boy introduced PO2 Trambulo to Ed as Rollie, a buyer of shabu.
The parties agreed to meet at the parking space of McDonalds at Uniwide Coastal Mall in
At the agreed time and place of the transaction, PO2 Trambulo, together with sixteen (16) other officers of the RIID, waited for appellant. PO2 Trambulo noticed a red Honda Civic car passing several times in front of him. Finally, a Chinese-looking man alighted from the drivers side of the vehicle. Boy introduced PO2 Trambulo (a.k.a. Rollie) to appellant (a.k.a. Ed) who also introduced himself to Rollie, using broken Tagalog language. Ed then gave Rollie a brown paper bag containing a white crystalline substance wrapped in a Christmas wrapper. After looking at the contents of the wrapper and pinching it to test the crispiness of the substance, Rollie gave Ed the buy-bust money. When Ed reached for the money with his hands, Rollie informed Ed 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 being the seller of the confiscated shabu and positively identified the brown paper bag given to him by appellant containing the prohibited drug which he marked CVT, his initials (Christian Ventura Trambulo).
Appellant had a different story to tell.
Testifying through an interpreter, appellant claimed to be a
Chinese, jobless, and born in
The court a quo adjudged the case for the prosecution.
The trial court debunked appellants defense of denial. The 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 court observed, appellants friend, a certain Tan Eng Hong, did not appear in court to corroborate his testimony. The 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 so shown by the letter, dated 13 October 2000, of then Commissioner on Immigration and Deportation Rufus B. Rodriguez, to State Prosecutor Reynaldo J. Lugtu.
Finding the prosecutions evidence far more credible than that of the defense and to have overwhelmingly established the elements of the crime charged, the trial court convicted appellant and decreed the penalty of death. In arriving at that penalty, the trial court considered the use of a motor vehicle to be an aggravating circumstance.
Appellant assigned the following errors supposedly committed by the court a quo:
THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED.
ASSUMING ARGUENDO THAT ACCUSED-APPELLANT IS GUILTY OF THE CRIME CHARGED, NONETHELESS, THE TRIAL COURT ERRED IN IMPOSING UPON HIM THE SUPREME PENALTY OF DEATH.
Initially, appellant, in this appeal, was represented by Atty. Eldorado Lim, who filed a brief for the defense. On 04 October 2002, Fernandez, Pacheco &
Dizon Law Offices filed its entry of
appearance as being the new counsel for appellant only to be substituted later
by Guzman, Tanedo, & Acain
Law Offices. On
The Court is not convinced.
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.
Not one of the requisites mentioned is attendant. Appellants passport could have easily been presented and produced during the trial. Then, too, the presentation of appellants passport, would hardly be material to the outcome of the case. Appellant was positively identified by the prosecution witnesses as being the perpetrator of the crime. Most importantly, appellant even identified himself as Li Ka Kim at the trial and not as Huang Xiao Wei, that bolsters the conclusion that appellant deliberately concealed his true identity in the nefarious enterprise.
Now to the merits.
The totality of evidence presented is convincing and points to appellant as being a person engaged in the sale of illegal drugs. The testimony of the prosecution witnesses identifying appellant to be a seller of illegal drugs appears to be categorical and unfabricated. No ill motive on the part of the witnesses has been shown to tarnish their testimony. Such positive evidence certainly prevails over mere denial and alibi which, if not substantiated by clear and convincing evidence, are negative and self-serving unworthy of credible weight in law.
Appellants argument that a surveillance or a test buy should have first been conducted deserves scant consideration. In a prosecution for illegal possession of dangerous drugs, it is enough to show that - (1) the accused is in possession of an item or an object identified to be a prohibited or a regulated drug; (2) such possession is not authorized by law; and (3) the accused has freely and consciously possessed the prohibited drug. 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.
Appellant was caught in flagrante delicto
selling 994.773 grams of shabu to the poseur buyer on the morning of
The Court has great respect for the judgment of the trial court in passing upon the credibility of witnesses. It is often said that, unless there appears in the record some fact or circumstance of weight and substance, and there is none, which has been overlooked or the significance of which has been misinterpreted, an appellate court will not interfere in the factual findings of the trial court.
There is merit, however, in appellants contention that the court a quo erred in imposing the penalty of death. 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. 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 pertinent provisions of the rules read:
Sec. 8 Designation of the offense. - The complaint of information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it.
Sec. 9 Cause of the accusation. The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment. (underscoring supplied.)
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.
Quite recently, the Court has held that the provisions of the Revised Rules on Criminal Procedure, particularly Section 8, Rule 110, thereof, must be given retroactive effect in the light of the well-settled rule that statutes or rules regulating the procedure of the court will be construed as being applicable to actions pending and undetermined at the time of their passage.
The quantity of the drugs seized from appellant, which is 994.773 grams of shabu, warrants the application of the penalty under Section 16, in relation to Section 17, of Republic Act No. 7659, otherwise also known as An Act to Impose the Death Penalty on Certain Heinous Crimes, of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos. Applying the provisions of Article 63 of the Revised Penal Code, the lesser penalty should be imposed, there being neither mitigating nor aggravating circumstances that can be considered, for the commission of the offense.
WHEREFORE, the judgment of conviction against appellant Li Ka Kim, a.k.a. Ed, is AFFIRMED with modification in that the penalty of DEATH imposed by the trial court is hereby reduced to RECLUSION PERPETUA. In other respects, the judgment of the court a quo is sustained. Costs de oficio.
Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.
Davide, Jr., C.J., and Puno, J., on official leave.
 Rollo, p. 8.
 Ibid, pp. 9-11.
 Ibid, pp. 13-16.
 Ibid, pp.17-18, Exhibit C-7.
 Exhibit M-Rebuttal.
 Rollo, p. 76.
 People vs.
Tirona, G.R. No. 128907,
 People vs. Naguita, G.R. No. 130091, 30 August 1999 (313 SCRA 292); People vs. Hillado, G.R. No. 122838, 24 May 1999 (307 SCRA 535); People vs. Mores, G.R. No. 107746, 28 July 1999 (311 SCRA 342); People vs. Acuno, G.R. No. 130964, 03 September 1999 (313 SCRA 667); People vs. Arlee, G.R. No. 113518, 25 January 2000 (323 SCRA 201); People vs. Suelto, G.R. No. 126097, 08 February 2000 (325 SCRA 41).
 Ruben E. Agpalo, Handbook on Criminal Procedure, 2001 Edition, p. 54.
 People vs. Arrojado,
G.R. No. 130492,