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[G.R. No. 2358. August 22, 1906. ]

THE UNITED STATES, Complainant-Appellee, v. The Chinaman ANG KAN KO, Defendant-Appellant.

Pillsbury & Sutro, for Appellant.

Solicitor-General Araneta, for Appellee.


1. CUSTOMS ADMINISTRATIVE ACT, INFRINGEMENT OF. — Act No. 653 of the Philippine Commission relates exclusively to fines imposed by administrative officers.

2. ID.; ID.; EX POST FACTO LAW; SUBSIDIARY IMPRISONMENT. — Act No. 864, if it relates to fines imposed by a court, increase the subsidiary imprisonment authorized by section 291 of Act No. 355, and is therefore void as to a crime committed prior to its passage, being as to such crime an ex post facto law.

3. ID.; ID.; SUBSIDIARY IMPRISONMENT. — At the time the crime in this case was committed the only providing for subsidiary imprisonment for nonpayment of a fine imposed by the court was said section 291. This was repealed after the crime was committed by said Act No. 864, without any saving clause as to pending cases. Held, That no subsidiary imprisonment could be imposed under section 291.



The Chinese firm of Hieng Cheong Shing was organized for the purpose of fraudulently importing goods into the Philippine Islands without payment of the lawful duties thereon. The defendant was a member of that firm from the date of its organization. On the 25th of August, 1903, he made the declaration required by law at the custom-house for the entry of certain goods imported by the firm of which he was a member. The invoice which he presented with the declaration stated that three packages contained imitation butter. This statement was false, the packages in question containing aniseed oil and pearl buttons. The entry was allowed, the duties were paid on the goods as imitation butter, and they were delivered to the defendant’s firm. The duties on aniseed oil and buttons were much higher at the time than on imitation butter. The principal claim of the defendant is that he did not know that the declaration which he signed and the invoice which she presented were false, and that he supposed that the invoice and declaration correctly stated the character of the goods. The evidence upon this point is in our opinion, sufficient to sustain the conviction. That the firm was engaged in the business of fraudulently importing goods in violation of the customs laws was conclusively proved, and it was also proved that the defendant, when arrested, pointed out to the officers the place where the buttons were to be found.

The defendant was prosecuted for a violation of section 317 of Act No. 355. That section is in part as follows:jgc:chanrobles.com.ph

"If any owner, importer, consignee, agent, or other person shall make or attempt to make any entry of imported . . . merchandise by means of any false or fraudulent invoice, affidavit, letter, paper, or by means of any false statement practice or appliance whatsoever, or shall be guilty of any willful act or omission by means whereof the Government of the Philippine Islands shall be deprived of the lawful duties, or any portion thereof, embraced or referred to in such invoice, affidavit, letter, paper, or statement, or affected by such act or omission, . . . such person shall, upon conviction, be fined for each offense a sum not exceeding two years, or both, in the discretion of the court."cralaw virtua1aw library

The complaint in this case charged the defendant with the crime of making and entry of imported dutiable merchandise by means of a false and fraudulent invoice. It then alleged that the defendant imported from Hongkong certain merchandise, a part of which was declared as imitation butter, and that the said declaration was false and fraudulent. It is claimed by the defendant that the crime of which the defendant is accused is that of the importation of goods by means of a false invoice, whereas the complaint itself declares that the declaration was false and fraudulent. There was evidence in the case to show that the invoice always accompanied the declaration; that the declaration would not be received without invoice, and that they were parts of one document. This claim of the defendant can not, therefore, be sustained.

The court below sentenced the defendant to confinement in the prison of Bilibid for six months and to pay a fine of 1,000 pesos, it being provided in the judgment that if the fine was not paid the defendant should suffer corresponding additional imprisonment until the fine was satisfied at the rate of one day for each 1 1/2 pesos.

The Solicitor-General in his brief suggest that the subsidiary imprisonment is not justified by the law. The Customs Administrative Act, No. 355, took effect in Manila on February 7, 1902. Section 291 of that act authorized subsidiary imprisonment on nonpayment of fines imposed in criminal prosecutions under the act, such imprisonment to be regulated by the provisions of the Penal Code. Act No. 653 took effect on March 4, 1903. This act provided for subsidiary imprisonment on the nonpayment of fines at the rate of not less than 20 cents, United States money, per day, the rate to be fixed in the judgment. This act was in force when the offense in this case was committed on the 25th of August, 1903. As we construe this act, it related exclusively to fines imposed by the administrative officers, either by the collectors of the various ports throughout the Islands or by the Insular Collector, and did not in any way relate to fines imposed by the courts for violation of the criminal features of the law. It did not repeal section 291 of Act No. 355, expressly, and we hold that it was not repealed by implication; so that at the time the criminal act in this case was committed the subsidiary imprisonment which could be imposed for nonpayment of a fine was regulated by the Penal Code.

Article 50 of the Penal Code provides, in part, as follows:jgc:chanrobles.com.ph

"ART. 50. If the person sentenced should not have property to satisfy the pecuniary liabilities included in numbers one, three, and five of the preceding article, he shall be subject to a subsidiary personal liability at the rate of one day for every twelve and one-half pesetas, according to the following rules:jgc:chanrobles.com.ph

"(1) If the principal penalty imposed is to be undergone by the criminal confined in a penal institution, he shall continue therein, although said detention can not exceed one-third of the term of the sentence, and in no case can it exceed one year."cralaw virtua1aw library

Act No. 864 took effect on September 2, 1903, after the offense in this case had been committed. This act expressly repealed section 291 of Act No. 355 and in other parts of the act subsidiary imprisonment was provided for in the case of the nonpayment of fines, at the rate of not less than 40 centavos a day, the exact rate to be fixed in the decision of the court.

It is not necessary to decide, and we do not decide, whether the fines referred to in this act are administrative fines or whether they include also fines like the one in question in this case imposed by the court as a punishment for a crime, for in no event can the act be made applicable to this offense which was committed before its passage. The imprisonment imposed by this act as is seen is much more severe than that provided for in the Penal Code. In accordance with the provisions of the Penal code, and section 291, above quoted, the rate must have been 2
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