SECOND DIVISION
G.R. No. 202639, November 09, 2016
FEDERATED LPG DEALERS ASSOCIATION, Petitioner, v. MA. CRISTINA L. DEL ROSARIO, CELSO E.ESCOBIDO II, SHIELA M. ESCOBIDO, AND RESTY P. CAPILI, Respondents.
D E C I S I O N
DEL CASTILLO, J.:
This Petition for Review on Certiorari assails the April 27, 2012 Decision1 and July 6, 2012 Resolution2 of the Court of Appeals (CA) in CA-G.R. SP No. 115750, which respectively dismissed the Petition for Certiorari filed therewith by petitioner Federated LPG Dealers Association and denied the motion for reconsideration thereto.
Factual Antecedents
On June 1, 2006, petitioner, through counsel Atty. Genesis M. Adarlo (Atty. Adarlo) of Joaquin Adarlo and Caoile, sought assistance from the Criminal Investigation and Detection Group, Anti-Fraud and Commercial Crimes Division (CIDG-AFCCD) of the Philippine National Police3 in the surveillance, investigation, apprehension, and prosecution of certain persons and establishments within Metro Manila reportedly committing acts violative of Batas Pambansa Blg. 33 (BP 33),4 as amended by Presidential Decree No. 1865 (PD 1865),5 to wit: (1) refilling of Liquefied Petroleum Gas (LPG) cylinders branded as Shellane, Petron Gasul, Caltex, Totalgaz and Superkalan Gaz without any written authorization from the companies which own the said brands in violation of Section 2(a),6 in relation to Sections 37 and 4;8 (2) underfilling of LPG products or possession of underfilled LPG cylinders for the purpose of sale, distribution, transportation, exchange or barter in violation of Section 2(c),9 in relation to Sections 310 and 4; and, (3) refilling LPG cylinders without giving any receipt therefor, or giving out receipts without indicating the brand name, tare weight, gross weight and/or price thereof, among others, again in violation of Section 2(a) in relation to Sections 3(b)11 and 4.
A few days later or on June 8, 2006, Atty. Adarlo again wrote the CIDG-AFCCD informing the latter of its confirmation that ACCS Ideal Gas Corporation (ACCS), which allegedly has been refilling branded LPG cylinders in its refilling plant at 882 G. Araneta Avenue, Quezon City, has no authority to refill per certifications from gas companies owning the branded LPG cylinders.12
Acting on the same, a group composed of P/Supt. Francisco M. Esguerra (P/Supt. Esguerra) and PO2 Joseph R. Faeldonia (PO2 Faeldonia), both of the CIDG-AFCCD, and a team of paralegal investigators having extensive training and experience in LPG matters led by Bernabe C. Alajar (Alajar), mapped out a plan for the surveillance and investigation of ACCS.13 After a series of surveillance, the group observed that various vehicles and individuals carrying branded LPG cylinders have been going in and out of ACCS refilling plant. Hence, on July 15, 2006, they conducted a test-buy operation, the details of which were uniformly narrated by P/Supt. Esguerra, PO2 Faeldonia, and Alajar as follows:
x x x On 15 July 2006, using an investigation pre-text, we went undercover and executed our test-buy operations. In order for us to successfully execute our test-buy operation and avoid suspicion, we decided to separately and successively bring FOUR (4) empty branded LPG cylinders to the ACCS Refilling Plant.
x x x It is worthy to emphasize that while we were bringing with us the FOUR (4) empty branded LPG cylinders, we observed that other individuals were simultaneously bringing in for refilling various empty unbranded and branded LPG cylinders, including Shellane, Petron Gasul, Totalgaz, and Superkalan Gaz LPG cylinders.
x x x In particular, we were able to conduct our test-buy operation in the following manner:(a) We first brought one (1) empty Petron Gasul 11 kg. LPG cylinder and one (1) empty Shellane 11 kg. LPG cylinder for refilling. An employee of the ACCS Refilling Plant got our empty branded LPG cylinders, brought them to the refilling platform inside, and refilled them. From our location, we witnessed the actual refilling of our empty branded LPG cylinders. We were thereafter required to pay the total amount of NINE HUNDERED FIFTY-FOUR PESOS (Php954.00) for the refilled branded LPG cylinders. We made the necessary payment and, in turn, we were issued ACCS Control Receipt No. 12119 doted 15 July 2006 x x x.cralawlawlibrary
(b) Lastly, we brought on (1) empty Totalgaz 11 kg. LPG cylinder and on (1) Superkalan Gaz 2.7 kg. LPG cylinder for refilling. An employee of the ACCS Refilling Plant got our empty branded LPG Cylinders, brought them to the refilling platform inside, and refilled them. Again, from our location, we witnessed the actual refilling of our empty branded LPG cylinders. We were thereafter required to pay the amount of FIVE HUNDRED NINETY PESOS (Php590.00). We made the necessary payment, and in turn, we were issued ACCS Control No. 12120 dated 15 July 2006 x x x
x x x Thereafter, we left the premises of ACCS Refilling Plant and brought with us the abovementioned refilled branded LPG Cylinders, which all did not have any LPG valve seals. Immediately, we proceeded to the CIDG-AFCCD Headquarters and made the proper identification markings on the branded LPG cylinders, such as the name of ACCS Refilling Plant where they were refilled and the date when they were refilled. x x x14
The pieces of documentary evidence on record, notably the receipts issued to the operatives of the PNP, CIDG, who conducted the 'test-buy' operations on 15 July 2006, and the inventory of the items they seized pursuant to the search warrant issued by the Regional Trial Court of Manila, tend to suggest that ACCS Ideal Gas Corporation did engage in refilling LPG cylinders bearing the brands Shellane, Petron Gasul, Totalgaz, and Superkalan Gas. There is no dispute that ACCS Ideal Gas was not duly authorized by Pilipinas Shell, Petron, and Total (Philippines) Inc. to refill their respective LPG cylinders with LPG. Consequently, the act of ACCS Ideal Gas in refilling the LPG cylinders constitutes 'illegal trading in petroleum and/or petroleum products' under Section 2(a) of Batas Pambansa Bilang 33 as amended by Presidential Decree No. 1986, for which respondent Antonio G. Del Rosario, the general manager of ACCS Ideal Gas Corporation, should be prosecuted. The offense of underfilling of LPG cylinders under Section 2(c) may not be considered a distinct offense, the very same act being involved. We hold that underfilling of LPG cylinders under Section 2(c) presupposes that the person or entity who committed it is duly authorized to refill LPG cylinders.chanroblesvirtuallawlibrary
The other respondents may not be prosecuted for the offense. The law specifies the persons to be charged in case where violations of B.P. Blg. 33 are committed by a corporation, to wit, the president, general manager, officer charged with the management of the business affairs thereof, or employee responsible therefor (Section 4, B.P. Blg. 33). The record fails to disclose who among the respondents was the president, officer charged with the management of the business affairs of ACCS Ideal Gas, or the employee responsible for the commission of the offense. It is simply improper to charge all respondents for the offense based so1ely on the met that they were the directors of ACCS Ideal Gas at the time the alleged violation was committed. A member of the board of directors of a corporation is not necessarily an 'officer charged with the management of the business affairs thereof.'
VHEREFORE, it is respectfully recommended that Antonio G. Del Rosario be charged with illegal refilling of LPG cylinders penalized under Section 2(a) of Batas Pambansa Bilang 33 as amended by Presidential Decree No. 1865 and that the complaints as against Ma. Cristina L. Del Rosario, Celso E. Escobido II, Sheila M. Escobido, and Resty P. Capili be dismissed.
SO RESOLVED.27
WHEREFORE, premises considered, judgment is hereby rendered DISMISSING the petition. The assailed Resolutions are hereby AFFIRMED. No costs.
SO ORDERED.34
Essentially at fore in this Petition are the following questions:
- Can respondents, as members of the Board of Directors of ACCS, be criminally prosecuted for the latter's alleged violation/s of BP 33 as amended?
- Are the offenses of illegal trading of petroleum products under Section 2(a) and underfilling under Section 2(c), both of BP 33 as amended, distinct offenses?
When the offender is a corporation, partnership, or other juridical person, the president, the general manager, managing partner, or such other officer charged with the management of the business affairs thereof, or employee responsible for the violation shall be criminally liable. x x xchanroblesvirtuallawlibrary
Sec. 4 of BP 33. as amended. provides for x x x persons who are criminally liable, thus:chanroblesvirtuallawlibrary
x x x xWhen the offender is a corporation, partnership, or other juridical person, the president, the general manager, managing partner, or such other officer charged with the management of the business affairs thereof or employee responsible for the violation shall be criminally liable; x x xcralawlawlibrary
x x x x
Relying on the x x x above statutory proviso, petitioners argue that they cannot be held liable for any perceived violations of BP 33. as amended, since they are mere directors of Omni who are not in charge of the management of its business affairs. Reasoning that criminal liability is personal, liability attaches to a person from his personal act or omission but not from the criminal act or negligence of another. Since Sec. 4 of BP 33, as amended, clearly provides and enumerates who are criminally liable, which do not include members of the board of directors of a corporation, petitioners, mere members of the board of directors who are not in charge of Omni's business affairs, maintain that they cannot be held liable for any perceived violations of BP 33, as amended. To bolster their position, they attest to being full-time employees of various firms as shown by the Certificates of Employment they submitted tending to show that they are neither involved in the day-to-day business of Omni nor managing it. Consequently, they posit that even if BP 33, as amended, had been violated by Omni they cannot be held criminally liable [therefor, they] not being in any way connected with the commission of the alleged violations, and, consequently, the criminal complaints filed against them based solely on their being members of the board of directors as per the [General Information Sheet (GIS)] submitted by Onmi to SEC are grossly discriminatory.
On this point, we agree with petitioners except as to petitioner Arnel U. Ty who is undisputably the President of Omni.
It may be noted that Sec. 4 above enumerates the persons who may be held liable for violations of the law, viz[.]: (1) the president, (2) general manager, (3) managing partner, (4) such other officer charged with the management of the business affairs of the corporation or juridical entity, or (5) the employee responsible for such violation. A common thread of the first four enumerated officers is the fact that they manage the business affairs of the corporation or juridical entity. In short, they are operating officers of a business concern, while the last in the list is self-explanatory.
It is undisputed that petitioners are members of the board of directors of Omni at the time pertinent. There can be no quibble that the enumeration of persons who may be held liable for corporate violators of BP 33, as amended, excludes the members of the board of directors. This stands to reason for the board of directors of a corporation is generally a policy making body. Even if the corporate powers of a corporation are reposed in the board of directors under the first paragraph of Sec. 23 of the Corporation Code, it is of common knowledge and practice that the board of directors is not directly engaged or charged with the running of the recurring business affairs of the corporation. Depending on the powers granted to them by the Articles of Incorporation, the members of the board generally do not concern themselves with the day-to-day affairs of the corporation, except those corporate officers who are charged with running the business of the corporation and are concomitantly members of the board, like the President. Section 25 of the Corporation Code requires the president of a corporation to be also a member of the board of directors.
Thus, the application of the legal maxim expressio unius est exclusio alterius, which means the mention of one thing implies the exclusion of another thing not mentioned. If a statute enumerates the thing upon which it is to operate, everything else must necessarily and by implication be excluded from its operation and effect. The fourth officer in the enumerated list is the catch-all 'such other officer charged with the management of the business affairs' of the corporation or juridical entity which is a factual issue which must be alleged and supported by evidence.
A scrutiny of the GIS reveals that among the petitioners who are members of the board of directors are the following who are likewise elected as corporate officers of Omni: (1) Petitioner Arnel U. Ty (Arnel) as President; (2) petitioner Mari Antonette Ty as Treasurer; and (3) petitioner Jason Ong as Corporate Secretary. Sec. 4 of BP 33, as amended, clearly indicated firstly the president of a corporation or juridical entity to be criminally liable for violations of BP 33, as amended.
Evidently, petitioner Arnel, as President, who manages the business affairs of Omni, can be held liable for probable violations by Omni of BP 33, as amended. The fact that petitioner Arnel is ostensibly the operations manager of Multi-Gas Corporation, a family owned business, does not deter him from managing Omni as well. It is well-settled that where the language of the law is clear and unequivocal, it must be taken to mean exactly what it says. As to the other petitioners, unless otherwise shown that they are situated under the catch-all 'such other officer charged with the management of the business affairs' they may not be held liable under BP 33, as amended, for probable violations. Consequently, with the exception of petitioner Arnel, the charges against other petitioners must perforce be dismissed or dropped.38
Endnotes:
1CA rollo, pp. 454-467; penned by Associate Justice Socorro B. Inting and concurred in by Associate Justices Fernanda Lampas Peralta and Mario V. Lopez.
2 Id. at 483-484.
3 Id. at 72-73.
4 An Act Defining and Penalizing Certain Prohibited Acts Inimical to the Public Interest and National Security Involving Petroleum and/or Petroleum Product, Prescribing Penalties Therefor and for Other Purposes. Penalties Therefor and for Other Purposes", by Including Short-Selling and Adulteration of Petroleum and Petroleum Products and Other Acts in the Definition of Prohibited Acts, Increasing the Penalties therein, and For Other Purposes"
6 Sec. 2. Prohibited Acts. – The following acts are prohibited and penalized:(a) Illegal trading in petroleum and/or petroleum products;7 Sec. 3. Definition of terms. – For the purpose of this Act, the following shall be construed to mean:
x x x xIllegal trading in petroleum and/or petroleum products –cralawlawlibrary
x x x x
(e) Refilling of liquefied petroleum gas cylinders without authority from said Bureau, or refilling of another company's or firm's cylinders without such company's or firm's written authorization;
x x x x
8 Sec. 4. Penalties. – Any person who commits any act herein prohibited shall, upon conviction, be punished with a fine of not less than TWENTY thousand pesos (P20,000.00) but not more than FIFTY thousand pesos (P50,000.00) or imprisonment of at least TWO (2) YEARS but not more than FIVE (5) YEARS, or both, in the discretion of the court. In cases of second and subsequent conviction under this act, the penalty shall be both fine and imprisonment as provided herein. Furthermore, the petroleum and/or petroleum products, subject matter of the illegal trading, adulteration, shortselling, hoarding, overpricing or misuse, shall be forfeited in favor of the Government: Provided, that if the petroleum and/or petroleum products have already been delivered and paid for, the offended party shall be indemnified twice the amount paid, and if the seller who has not yet delivered has been fully paid, the price received shall be returned to the buyer with an additional amount equivalent to such price; and in addition, if the offender is an oil company, marketer, distributor, refiller, dealer, sub-dealer and other retails outlet, or hauler, the cancellation of his license.
Trial of case arising under this Act shall be terminated within thirty (30) days after arraignment.
When the offender is a corporation, partnership, or other juridical person, the president, the general manager, managing partner, or such other officer charged with the management of the business affairs thereof, or employee responsible for the violation shall be criminally liable. In case the offender is an alien, he shall be subject to deportation after serving the sentence.
If the offender is a government official or employee, he shall be perpetually disqualified from office.
9 Sec. 2. Prohibited Acts. – The following acts are prohibited and penalized:x x x xcralawlawlibrary
(c) Underdelivery or underfilling beyond authorized limits in the sale of petroleum products or possession of underfilled liquefied petroleum gas cylinder for the purpose of sale distribution, transportation, exchange or barter;
x x x x
10 Sec. 3. Definition of terms. – For the purpose of this Act, the following shall be construed to mean:x x x xcralawlawlibrary
Underfilling or Underdelivery - Refers to a sale, transfer, delivery or filling of petroleum products of a quantity that is actually beyond authorized limits than the quantity indicated or registered on the metering device of container. This refers, among others, to the quantity of petroleum retail outlets or to liquefied petroleum gas in cylinder or to lube oils in packages.
11 Sec. 3. Definition of terms. For the purpose of this Act, the following shall be construed to mean:Illegal trading in petroleum and/or petroleum products –cralawlawlibrary
x x x x
(b) Non-issuance of receipts by licensed [traders] oil companies, marketers, distributors, dealers, subdealers and other retail outlets, to final consumers: provided: That such receipts, in the case of gas cylinders, shall indicate therein the brand name, tare weight, gross weight, and price thereof;
x x x x
12 CA rollo, pp. 95-99.
13 See respective Affidavits of P/Supt. Esguerra, id. at 128-130; PO2 Joseph Faeldonia, id. at 134-136; and Alajar, id. 131-133.
14 Id. at 129-130
15 See Inspection/Evalution Reports, id. at 114-117.
16 One for alleged violation of Section 2(a), in relation to Sections 3 (c) and 4 of BP 33 as amended, id. at 150-154, and another for alleged violation of Section 2(c), in relation to Sections 3 and 4 of the same law, id. at 155-159.
17 See Receipt of Property Seized, id. at 160.
18 As alleged in the Complaint-Affidavit for Underfilling, id. at 169-173.
19 Docketed as I.S. No. 2006-1173 and I.S. No. 2006-1174. However, only a copy of the Complaint-Affidavit in I.S. No. 2206-1173 (for underfilling) is found in the records, id.
20 Id. at 210-211.
21 Id. at 214.
22 Id. at 216-225.
23 Sec. 23. The board of directors or trustees. - Unless otherwise provided in this Code, the corporate powers of all corporations formed under this Code shall be exercised, all business conducted and all property of such corporations controlled and held by the board of directors or trustees to be elected from among the holders of stocks, or where there is no stock, from among the members of the corporation, who shall hold office for one (1) year until their successors are elected and qualified.
24 CA rollo, pp. 236-240.
25cralawred Id. at 241-251.
26 Id. at 252-255.
27 Id. at 253-254.
28 Id. at 274-275.
29 Id. at 277-308.
30 Id. at 48-49; signed by Undersecretary Ernesto L. Pineda for the Secretary of Justice.
31 Id. at 53-71.
32 Id. at 50-51; signed by Acting Secretary Alberto C. Agra.
33 Id. at 454-467.
34 Id. at 466.
35 Id. at 468-480.
36 Id. at 483-484.
37 653 Phil. 356 (2010).
38 Id. at 381-385; emphases and italics in the original; citations omitted.
39 For Violation of Section 2(c), in relation to sections 3 and 4, of BP 33 as amended.
40 CA rollo, pp. 88-89.
41 Id. at 90-91.
42Philippine British Assurance Co., Inc. v. Intermediate Appellate Court, 234 Phil. 512, 519 (1987); italics and underscoring in the original.