final people v. tan.docx

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Republic of the PhilippinesCOURT OF APPEALS

Manila

Second Division

PEOPLE OF THE PHILIPPINES,Plaintiff-Appellee,

- versus - CA G.R. CR NO. 35023

HENRY TAN,Accused-Appellant.

x------------------------------------------x

BRIEF FOR THE APPELLEE

Appellee PEOPLE, by counsel, to this Honorable Court,respectfully states:

STATEMENT OF THE CASE

In an Information docketed as Criminal Case No. 05-234757,filed with the Regional Trial Court (trial court), National Capital

Judicial Region, Manila, and subsequently raffled to Branch 15thereof, appellant Henry Tan was charged with Estafa under Article315(2) a of the Revised Penal Code, allegedly committed as follows:

The undersigned accuses Henry Tan and HalilZumrut of the crime of ESTAFA under Article 315, Par.2(a)of the Revised Penal Code committed as follows:

That sometime in December 2003, in the City of Manila Philippines, the said accused, conspiring andconfederating together and mutually helping each other, did


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then and there willfully, unlawfuly and feloniously defraudGideon J. Guillen prior to and even simultaneous with thecommission of fraud, to the effect that they falselypretended to possess business or transaction involving theobtainment of Royal Bank of Scotland Bank Guarantee inthe amount of US$1,500,000,000.00 dollar, induced andsucceeded in inducing said Gideon J. Guillen, to give anddeliver, as in fact he gave, and delivered to the said accusedthe total amount of US$43,000.00 or its equivalent inPhilippine Currency amounting to 2,150,000.00 more orless, on the strength of said manifestations andrepresentations and in consideration of promised profit of US$1,740,000.00 and accused well knowing that the samewere false and fraudulent

(Records, p. 1)

Duly arraigned on March 12, 2002, appellant pleaded notguilty to the charge while his co-accused, Halil Zumrut, remainedat large. ( Brief For the Appellant , p. 4) Pre-trial was conducted onMay 2, 2004 and terminated on July 19, 2006 (Id., p. 177). Thecase was referred to mediation but both parties failed to settle. Trialthen ensued.

On May 3, 2012, the trial court promulgated its Decision

dated March 20, 2012 (Id., p. 382), the decretal portion of whichreads: WHEREFORE, this Court finds accuse Henry Tan

GUILTY beyond reasonable doubt of the crime of Estafadefined and penalized under Article 315, paragraph 2(a) of the Revised Penal Code and is hereby sentenced to sufferthe indeterminate sentence of four (4) years two (2) mothsprision correccional as minimum to (20) years reclusiontemporal as maximum and ordered to indemnify privatecomplainant Gideon Guillen the amount of forty-threethousand US dollars (US$43,000.00) plus legal rate of interest from the time of demand.

SO ORDERED.

(Decision p. 8)


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Aggrieved, appellant Henry Tan filed this appeal ascribing thefollowing errors:

I. THE TRIAL COURT ERRED IN CONVICTING THE APPELLANT OF ESTAFA DEFINED ANDPENALIZED UNDER ARTICLE 315, PARAGRAPH2(a) OF THE REVISED PENAL CODE.

II. THE TRIAL COURT ERRED IN HOLDING THAT ACCUSED EMPLOYED FALSE PRETENSES

WHEN HE PRETENDED TO POSSESS POWER,INFLUENCE OR CONNECTION IN SECURINGSTAND-BY LETTER OF CREDIT.

III. THE TRIAL COURT ERRED IN HOLDING THAT THE ACCUSED EMPLOYED FALSEPRETENSES PRIOR TO, AND SIMULTANEOUSLYWITH, THE FRAUDULENT REPRESENTATION

THAT GUILLEN COULD SECURE A STAND-BYLETTER OF CREDIT PROVIDED HE GIVESFORTY-THREE THOUSAND US DOLLARS(US$43,000.00).

IV. THE TRIAL COURT ERRED IN HOLDING THAT GUILLEN RELIED ON FASLE PRETENSESOF ACCUSED HENRY TAN INDUCING HIM TOPART WITH THIS MONEY DUE TO THEMISREPRESENTATIONS EMPLOYED BY THEPERPETRATOR OF THE FRAUD.


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V. THE TRIAL COURT ERRED IN HOLDING THAT PRIVATE COMPLAINANT SUFFERED DAMAGESIN THE AMOUNT OF FORTY-THREE THOUSANDUS DOLLARS (US$43,000.00) AS A RESULT OF

THE FALSE PRETENSES ANDMISREPRESENTATIONS OF THE ACCUSED.

VI. THE TRIAL COURT ERRED IN HOLDING THAT ACCUSED TAN ASSURED GUILLEN THAT HE CAN SECURE A STAND BY LETTER OFCREDIT IF GUILLEN CAN PAY THE RENTAL FEEOF FORTY-THREE THOUSAND US DOLLARS

($43,000.00).

VII. THE TRIAL COURT ERRED IN HOLDING THAT THE PROSECUTION WAS ABLE TOESTABLISHED THE ELEMENTS OF DECEIT ANDDAMGE FOR THE FORM OF ESTAFA CHARGEDIN THIS CASE.

VIII. THE TRIAL COURT ERRED IN HOLDING THAT THE DOCUMENTARY EVIDENCESCORROBORATE THE TESTIMONY OFPROSECUTION THAT INDEED ACCUSED TANDEFRAUDED GUILLEN BY PRETENDING THAT HE CAN SECURE A STAND-BY LETTER OFCREDIT.

IX. THE TRIAL COURT ERRED IN HOLDING THAT THE PROSECUTION WITNESSES ARECREDIBLE WITNESSES, OWING TO THEIRCATEGORICAL, STRAIGHTFORWARD,


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SPONTANEOUS, FRANK MANNER ANDCONSISTENCY IN THEIR TESTIMONIES.

(Brief for the Appellant , pp. 1-2)

COUNTERSTATEMENT OF FACTS

The established facts as summarized by the trial court are asfollows:

GIDEON JAVIER GUILLEN testified that accused Tanwas introduced to him by a friend when he was trying tosecure a stand-by letter of credit to be used in putting up abusiness in Cavite. A stand-by letter of credit is a sort of bank guarantee used in business transactions to get somesort of cash from a bank. Sometime in March 203, when hevisited accused Tans office at Roxas Boulevard, he askedthe accused if the latter can secure him a stand-by letter of credit. Accused answered that as long as Guillen can paythe rental fee amounting to forty-three thousand US dollars(US$43,000.00) he can secure such letter of credit. OnDecember 4, 2003, together with Romeo Camaho andAmado Magno, he met accused Tan and gave him theamount of forty-three thousand dollars (US$43,000.00) inone hundred US dollar bills. The accused signed a verifiedundertaking and acknowledgment receipt. Guillen identifiedthe document and the signatures appearing therein.Subsequently, accused issued an Export and IndustryBank check number 0002572577 (EIB check) with facevalue of two million four hundred fourteen thousand andfour hundred fifty pesos (P2,414,450.00). The check wasgiven to him by accused Tan though the signatory in saidcheck was allegedly accused Halil Zumrut. Accused Tantold him that it will take two weeks to one month before hecan receive the stand-by-letter of credit.


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Further, Guillen mentioned that the serial numbersof the $100 bills were witten in a bond paper. On the saidocument he identified the signature appearing therein asthat of accused Tan. He claimed that the accused affixedthe signature in his presence. The original copy of the saiddocument was with Deutsche Bank. He identified anotherdocument given to him by the accused which was a letter,with a topic of Bank Guarantee issued by Royal Bank of Scotland, London, U.K. He also identifie a documentdenominated as receipt. According to the accused thesignature appearing therein belongs to accused Zumrut. Helikewise acknowledged a letter dated December 2, 2003handed by accused Tan who teold him to sign so that theletter can be given to accused Zumrut. He admitted that thesignature appearing therein belongs to him. The documentshe mentioned were all photocopies because the originals arein the possession of accused Tan.

The stand-by-letter of credit as promised by accused Tn did not materialize. He demanded for the return of hismoney but accused kept on telling him to wait but no letterof credit was delivered. When he decided to encash thecheck it bounced for reason account closed.Subsequently, he filed the instant case against accused Tanand accused Zumrut. He spent one hundred thousandpesos (P100,000) for services of a counsel and three (3)thousand pesos per appearance. He was emotionally,mentally, physically and financially stressed because of what happened.He admitted having transacted business with accused

Zumrut despite the fact that he has not personally met thelatter. Accused Tan claimed that he is the partner of accused Zumrut. He paid accused Tan forty-three thousandUS dollars (US$43,000) for stand by letter of credit and wasnot intended for the services rendered by accused Tan.

(Records, pp.374-375)

ISSUE

The sole and most basic issue in this case is:

Whether appellants guilt for estafawas proven beyond reasonable doubt.


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ARGUMENT

The trial court correctlyconvicted appellant of Estafa.

Appellant contends that his conviction is erroneous becausehis guilt for estafa was not proven beyond reasonable doubt.Hence, he must be acquitted.

Appellants conten tion lacks merit.

To secure a conviction for estafa under Article 315, paragraph2 (a) of the Revised Penal Code (RPC), the following requisites mustconcur:

(1) The accused made false pretenses orfraudulent representations as to his [her] power, influence,qualifications, property, credit, agency, business orimaginary transactions;

(2) The false pretenses or fraudulentrepresentations were made prior to or simultaneous withthe commission of the fraud;

(3) The false pretenses or fraudulentrepresentations constitute the very cause which inducedthe offended party to part with his money or property;

(4) That as a result thereof, the offended partysuffered damage (Gonzaludo v. People, 481 SCRA 569[2006]; Ansaldo v. People, 616 SCRA 556 [2010]).

In the case at bar, the prosecution successfully proved the guiltof the accused beyond reasonable doubt.

First , accused Tan falsely represented to private complainantGuillen that he could secure a stand-by letter of credit for as longas Guillen can give him forty-three thousand US dollars($43,000,00) allegedly as rental fee for processing the said stand-byletter of credit. DEFINE STAND-BY letter of credit. Arguably, thesuccess of a stand-by letter of credit is subject to the approval of bank, but Appellant Tan promised a successful procurement of a


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stand-by letter of credit without saying more. Thus, appellantfalsely represented that he possessed the power, influence, orconnection to secure a standby letter of credit in favor of Guillen onthe sole condition that the latter shall give him $43,000.00. This

false representation can be easily gleaned from the direct testimonyof private complainant Gideon Guillen, thus:

COURT

Q Why do you want to secure a standby letter of credit?

A We are trying to put up a business somewhere in Cavite.We are securing a commercial place, Your Honor.

Q Are you engaged in any business?

A Yes Your Honor, trading business.

Q And do you operate under what is it a corporation or underpartnership or sole proprietorship?

A Sole proprietorship, Your Honor.

Q Do you have any name?

A Yes, You Honor.

A Guillen Traiding.

COURT

Proceed.

ATTY. MOLDEZ

Q After Henry Tan was introduced to you what did you do if anu? [sic]

A I called him at his office and then we made an appointmentso that I can see him personally.

ATTY. MOLDEZ

Q Where did you meet him?

A Yes, sir I went to his office located at Roxas Blvd. infront[sic] of the US Embassy.


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Q Do you still recall the building?

A I cannot but I still remember the place.

Q When did you first meet this Henry Tan?

A Sometime in March 2003

Q And what was your meeting all about?

A It was about a standby letter of credit

Q And aside from that what did you talk about during thatmeeting?

a I was asking him if he can secure my a standby letter of credit and then he told me that he can give me one andpromise that he can secure me as long as I can pay therental fee.

Q What is rental fee?

A It is a payment for the standby letter of credit for theduration of one year and one day.

Q And how much was this rental fee?

A He was asking me for $43,000.00.

Q And what did you say when you found out the amountof the rental fee?

A I told him I will try to raise the money first.

Q And when you said that you will try to raise the moneyfirst what did Henry Tan say if any?

ATTY MOLDEZ

A He told me if I can raise the money I would call him andmeet again. 1

Xxx

(Emphasis supplied)

1 TSN, May 28, 2007, pp 4-.6.


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Second , prior to the date when private complainant paid thesum of $43,000.00 in favor of appellant Tan, the two met atdifferent places to discuss the acquisition of the standby-letter of credit. It was at these meetings were appellant Tan informed

Guillen on the possibility of securing the said standby-letter of credit from different banks such as Hongkong & Shanghai Bank,Union Bank and I Bank. This makes up for the second element inthat the false pretenses or fraudulent representations were madeprior to or simultaneous with the commission of the fraud. Thedirect testimony of the private complainant reveals, thus:

ATTY MOLDEZ:xxx

Q Now aside from that initial meeting were there anyother/subsequent meeting you have?

A Yes, sir we always meet besides his office we meet atthe Robinsons Mall in Malate.

Q In Carls . .

Q And what is this meeting all about?

A It is about the standby letter of credit on differentbanks that can accommodate me.

Q And what were the different banks which Henry Tantell you that can/accommodate your standby lettersof credit.

A As far as I remember Hendry Tan told me Hongkong& Shanghai Bank, Union Bank and I Bank.

Q Now in the subsequent meetings who was with Henry Tan if you can recall?

A Mostly just the two of us

Q So you were able to aise the amount of $43,000.00?

A Yes, sir.

Q How were you able to raise the amount of $43,000.00?


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A From my savings and loans from my friends andrelatives.

Q When were you able to raise that amount?

A Sometime in December 2004.

ATTY. MOLDEZ

Q And after you were able to raise that amount whatstep if any did you take?

A I called Henry Tan I told him I am ready and I havethe amount already.

Q And where was this appointment?

A He gave the appointment we went to Deutsch bankin Makati it is a german bank.

Q Where in Makati?

A At the Philippine Stocks Exchange Bldg.

Q Did you in fact meet with Henry Tan?

A Yes, sir.

Q What is the date you met Henry Tan after you raise d

that amount of $43,000.00?A December 4, 2003.

Q When you met Henry Tan on you place of appointment who were with you if any?

A I was with my two friends.

Q And what is the name of your friends?

A Romeo Camacho and Amado Magno.

Q How about Henry Tan?

A He was with another friend onato Ramil.

Q What happen when you met with Henry Tan after you raised that amount of $43,000.00?


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A I gave him personally that amount of $43,000.00 in$100.00 bills. 2

xxx

2 TSN, May 28, 2007, pp. 6-8

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