Republic of the Philippines

REGIONAL TRIAL COURT

SIXTH JUDICIAL REGION
Branch 46, Bacolod City

PEOPLE OF THE PHILIPPINES,

Complainant,

- versus - Criminal Case No. ________

XXX, ET AL.,
Accused.
x------------------------x

URGENT MOTION TO REOPEN BAIL HEARING

ACCUSED-MOVANTS, by Counsel and to this Honorable

Court, most respectfully avers:

1. The right to bail of an accused springs from the

constitutional presumption of innocence1, and prior to
conviction even when its grant is discretionary upon the
trial court, such right to bail is never curtailed and
necessarily continues especially when grave errors distinctly
mark the order of the trial court denying the application for
bail.

2. Accused-movants most respectfully beg the indulgence of

this Honorable Court and invite its attention to the utter
absence of any evidence hinting at least to the existence of
conspiracy between and among the accused-movants as
would qualify the alleged offense of illegal recruitment to
syndicated illegal recruitment.

3. It may be noted that the elements of syndicated illegal

recruitment2 are:

1 Gelacio vs. Flores, A.M. No. RTJ-99-1488. June 20, 2000

2 People vs. Lalli. et al., G.R. No. 195419, October 12, 2011
 a. the offender undertakes either any activity within
the meaning of recruitment and placement defined
under Article 13(b), or any of the prohibited
practices enumerated under Art. 34 of the Labor
Code;

b. he has no valid license or authority required by law

to enable one to lawfully engage in recruitment and
placement of workers; and

c. the illegal recruitment is committed by a group of

three (3) or more persons conspiring or
confederating with one another.

4. In determining the existence of the essential element of

conspiracy, this Honorable Court in its Order dated
January 21, 2015 denying the bail application of the
accused-movants ratiocinated on this wise:

“In this case, the articles of incorporation of XXX

are three (3) of the five (5) directors of the corporation
(Exhibit ‘AA-2’). Section 1, Article I of XXX’s by-laws
provide that the Board of Directors ‘shall conduct
all the business’ of the corporation (Exhibit ‘AA-7’).
Clearly then, the prosecution evidence and the law
(Section 23, B.P. 68 as amended) establish that
these three (3) other detained co-accused are liable
as co-conspirators in the illegal recruitment
activities of YYY, elevating the nature of their
common offense to syndicated illegal recruitment:
a crime of economic sabotage.

“Co-accused XXX had necessarily laid down the

customer relations procedure followed by YYY in
their dealings with customers like the private
complainant. They authorized the placement of the
enticing XXX internet advertisement of available
nursing jobs in Germany that hooked the private
complainant; they authorized the online
assessment conducted by accused YYY upon
private complainant; enabling YYY to learn of her
desperate financial situation which was not really
 relevant in showing her job credentials as a
registered nurse; but nonetheless showed to YYY
that she is vulnerable to manipulation by a
tempting job offer; they authorized accused YYY to
cause the private complainant’s execution of the
exculpatory MOA and sworn statement, after they
had first convinced the lady to part with her
money and can no longer afford to back out of the
transaction, and finally, they authorized accused
YYY to assist private complainant in taking the
German language exam (at private complainant’s
expense) in order to lay the basis for a subsequent
plausible explanation for her non-deployment
abroad. The private complainant testified, without
contradiction by the defense, that had she passed the
German language exam, it was just the start of a
series of progressively difficult language examinations
which she still had to take (TSN, October 30, 2015,
p.15). In other words, XXX had already stacked the
deck against her. There was really no chance that she
could be deployed abroad, but XXX had already gotten
her money. The visa and language exam
“assistance” extended by the accused to the
private complainant through the internet was
nothing more than an elaborate scheme, conceived
by the accused directors of XXX, to cover and
conceal the illegal recruitment activities of their
agency.” (Emphasis ours)

5. Accused-movants most respectfully beg to differ with the

Honorable Court’s determination of the existence of the vital
element conspiracy as there is simply no iota of evidence to
support such a finding. Thus, they humbly implore and
pray for some judicial leniency in this case if they would
once more ask this Honorable Court to carefully review the
record of this case.

6. Conspiracy exists when two or more persons come to an

agreement concerning the commission of a felony and decide to
commit it and that its elements, like the physical acts
constituting the crime itself, must be proved beyond reasonable
doubt. Thus, it has been held that conspiracy must be proved
 as clearly and convincingly as the commission of the offense
itself for it is a facile device by which an accused may be
ensnared and kept within the penal fold. In case of reasonable
doubt as to its existence, the balance tips in favor of the milder
form of criminal liability as what is at stake is the accused’s
liberty3.

7. In finding against the accused-movants, the Honorable

Court gravely erred when it presumed each individual
accused-movant’s participation in the alleged offense from
their mere membership in the board of directors of XXX.
Such sweeping generalization of the individual accused-
movant’s participation in the alleged offense, absent any
evidence that accused-movants had indeed come to an
agreement concerning the commission of the charged
offense and that they had decided to commit it, cannot be
countenanced. As held by the Honorable Supreme Court4,
conspiracy is not a product of negligence but of
intentionality on the part of the malefactors and for
conspiracy to exist, it is essential that there must be a
conscious design to commit an offense.

8. To elucidate, the following conspiratorials acts were

allegedly committed by the accused-movants XXX:

a. Co-accused XXX had “necessarily” laid down the

customer relations procedure followed by co-
accused YYY in their dealings with private
complainant.

b. Co-accused XXX “authorized” the placement of the

enticing XXX internet advertisement” of available
nursing jobs in Germany.

c. Co-accused XXX “authorized” the online assessment

conducted by co-accused YYY on private
complainant.

3 Quidet vs. People, G.R. No. 170289, April 8, 2010

4Sargasso Const. & Dev’t. Corp. vs. NLRC and Gorgonio Mongcal, G.R. No. 164118,
February 9, 2010
 d. Co-accused XXX “authorized” co-accused YYY to
have private complainant execute the MOA and
sworn statement after first convincing private
complainant to part with her money.

e. Co-accused XXX “authorized” co-accused YYY to

assist private complainant in taking the German
language exam (at private complainant’s expense) in
order to lay the basis for a subsequent plausible
explanation for her non-deployment abroad.

9. However, it is evident from the Order of January 21, 2015

and from a review of the case record that the prosecution
had not adduced evidence to adequately and clearly show
such acts that allegedly authorized co-accused YYY to
commit the offense of illegal recruitment against private
complainant. Verily, the Honorable Court’s conclusion of
the existence of conspiracy hinged upon the prosecution’s
theory that being corporate directors co-accused XXX had
performed specific acts with such closeness and
coordination as to unmistakably indicate a common
purpose or design to commit the alleged act of illegal
recruitment against private complainant.

10. Accused-movants most respectfully invites the attention

of this Honorable Court to such erroneous conclusion in its
Order of January 21, 2015 that because of the exchange of
email correspondences and the alleged telephone
conversations had between private complainant and that of
either the co-accused YYY, there is therefore evidence
linking such alleged acts of co-accused YYY to that of the
other three (3) other co-accused, XXX.

11. In a case5, the Honorable Supreme Court ruled that

“while conspiracy may be deduced from the mode and the
manner in which the offense was perpetrated, it must, like
the crime itself, be proven beyond reasonable doubt. Thus,
mere knowledge, acquiescence or approval of the act –
without the cooperation and the agreement to
cooperate – is not enough to establish conspiracy. Even
5 People vs. Mandao , et al., G.R. No. 135048. December 3, 2002
 if the accused were present and agreed to cooperate with
the main perpetrators of the crime, their mere presence
does not make them parties to it, absent any active
participation in the furtherance of the common design or
purpose.”

12. Sec. 6, RA 8042, as amended provides that the persons

criminally liable for the offense of illegal recruitment are the
principals, accomplices and accessories and that in case of
juridical persons, the officers having control,
management or direction of their business shall be
liable.

13. Accused-movants respectfully contends that the above-

mentioned provision of law should be read in consonance
with the general rule in criminal law that a corporate
director or other officer of a corporation can only be held
liable only for his/her acts or omissions, but never for the
acts or omissions of the other officers or agents of the
corporation6. It has been held that when a corporation
commits an act which constitutes a punishable offense
under the law, it is the responsible officers thereof,
acting for the corporation, who would be punished for
the crime7.

14. As consistently guided by jurisprudence on this matter,

two (2) requisites must concur in order to hold a director or
officer personally liable for corporate obligations8:

a. complainant must allege in the complaint that the

director or officer assented to patently unlawful acts
of the corporation, or that the officer was guilty of
gross negligence or bad faith; and
6See Reyes, Luis B., The Revised Penal Code Book One (2012 Ed.), pg. 506-507 citing
People vs. Campos, C.A., 40 O.G., Sup. 12,7 and West Coast Life Ins. Co. vs. Hurd, 27
Phil. 401

7Ching vs. Secretary of Justice, G.R. No. 164317, February 6, 2006; Sia vs. People, G.R.
No. L-30896, April 28, 1993; See also Sec. 31, B.P. 68

8Francisco vs. Mallen, G.R. No. 173169, September 22, 2010 citing Sec. 31, BP 68;
Ramoso vs. Court of Appeals, 400 Phil. 1260 (2000); Carag vs. NLRC, G.R. No. 147590,
April 2, 2007 (520 SCRA 28); McLeod vs. NLRC, G.R. No. 146667, January 23, 2007 (512
SCRA 222); David vs. NLRC, G.R. Nos. 148263 and 148271-72, April 21, 2009 (586 SCRA
100 and )Lowe, Inc. vs. Court of Appeals, G.R. Nos. 164813 and 174590, August 14,
2009 (596 SCRA 140)
 b. complainant must clearly and convincingly prove
such unlawful acts, negligence or bad faith.

15. It may be stressed at this juncture that in all criminal

prosecutions, the existence of criminal liability for which the
accused-movant is made answerable must be clear and
certain. The maxim that all doubts must be resolved in
favor of the accused is always of compelling force in the
prosecution of offenses9.

16. The record is likewise bereft of evidence to show whence

the impression of private complainant that XXX was offering
her a nursing job in Germany originated from. It may be
noted that private complainant admitted to seeing an
internet advertisement of XXX in Facebook that encouraged
her to inquire about such job offer, and yet no evidence of
said internet advertisement was ever adduced by the
prosecution. Evidently, such internet advertisement is
crucial in determining how and why private complainant
came to such a false impression of the services being offered
by XXX to its clients, especially since had admitted to
reading and understanding first the MOA before she
voluntarily signed it. Moreover, no evidence was adduced
showing that co-accused XXX had “authorized” the placing
of such questioned internet advertisement.

17. Accused-movants finally would respectfully take

exception against the unfounded conclusion of the
Honorable Court that “the visa and language exam
“assistance” extended by the accused to the private
complainant through the internet was nothing more than an
elaborate scheme, conceived by the accused directors of XXX
to cover and conceal the illegal recruitment activities of their
agency.” (Pg. 9, Order dated January 21, 2015)

18. The Honorable Supreme Court held that fraud cannot be

the basis of imposing personal liability upon a corporate
officer on mere allegation, for fraud is an allegation of fact
that demands clear and convincing evidence10. Clearly, this
9 Supra, note 4
10 Hi-Cement Corp. vs. Insular Bank of Asia and America, 534 SCRA 169 (2007)
 burden of proving such “elaborate scheme” of the XXX in
illegally recruiting private complainant, as well as the
participation of each individual accused-movant in said
“elaborate scheme”, was not overcome by the prosecution.

19. Accused-movants again beg the indulgence of this

Honorable Court if they would at this time earnestly seek a
review of the grounds for denying their bail application. The
demands of substantial justice and the interest of the
accused-movants to their provisional liberty pending trial
may far outweigh considerations of the prosecution of
securing the presence of the accused-movants in the trial.

20. This motion is not intended for delay, but solely for the
reasons aforestated.

WHEREFORE, it is respectfully prayed of the Honorable Court

to GRANT the instant urgent motion and ORDER the re-opening of
the bail hearing.

Other just and equitable reliefs which accused-movants have

proven to be deserving are likewise prayed for.

Manila City for Bacolod City, ________________.