Reviewer-bp 22-amla-plunder.docx

ANTI-MONEY LAUNDERING ACT (RA 9160), AS AMENDED BY RA 9194 Approved on September 29, 2001

What is the purpose of this Act? To protect and preserve the integrity and confidentiality of bank accounts and to ensure that the Philippines shall not be used as a money laundering site for the proceeds of any unlawful activity. Consistent with its foreign policy, the State shall extend cooperation in transnational investigations and prosecutions of persons involved in money laundering activities wherever committed.

(a) Any person knowing that any monetary instrument or property represents, involves, or relates to, the proceeds of any unlawful activity, transacts or attempts to transacts said monetary instrument or property.

(b) Any person knowing that any monetary instrument or property involves the proceeds of any unlawful activity, performs or fails to perform any act as a result of which he falicitates the offense of money laundering referred to in paragraph (a) above.

What will govern the restitution for the aggrieved party? The provisions of the New Civil Code.

(c) Any person knowing that any monetary instrument or property is required under this Act to be disclosed and filed with the Anti-Money Laundering Council (AMLC), fails to do so. What is a Money Laundering offense? It is a crime whereby the proceeds of an unlawful activity as herein defined are transacted, thereby making them appear to have originated from legitimate sources.

No case for money laundering may be filed against and no assets shall be frozen, attached or forfeited to the prejudice of a candidate for an electoral office during an election period.

What court has competent jurisdiction over a money laundering offense?

Penalty: (a) Penalties for the Crime of Money Laundering. - The penalty of imprisonment ranging from seven (7) to fourteen (14) years and a fine of not less than Three Million Philippine pesos (PhP3,000,000.00) but not more than twice the value of the monetary instrument or property involved in the offense, shall be imposed upon a person convicted under Section 4(a) of this Act.

The regional trial courts shall have jurisdiction to try all cases on money laundering. Those committed by public officers and private persons who are in conspiracy with such public officers shall be under the jurisdiction of the Sandiganbayan. What are Unlawful Activities? Any act or omission or series or combination thereof involving or having direct relation to following:

May a person be charged with and convicted of both the offense of money laundering and the unlawful activity as herein defined?

The penalty of imprisonment from four (4) to seven (7) years and a fine of not less than One million five hundred thousand Philippine pesos (PhP1,500,000.00) but not more than Three million Philippine pesos (PhP3,000,000.00), shall be imposed upon a person convicted under Section 4(b) of this Act.

(1) Kidnapping for ransom Yes. (2) Violations under the Comprehensive Dangerous Act of 2002 (3) Violations under Anti-Graft and Corrupt Practices Act (4) Plunder (5) Robbery and extortion (6) Jueteng and Masiao (7) Piracy on the high seas

Suppose that any monetary instrument or property is in any way related to an unlawful activity? The Court of Appeals, upon application ex parte by the AMLC and after determination that probable cause exists may issue a freeze order which shall be effective immediately. The freeze order shall be for a period of 20 days unless extended by the court.

(8) Qualified theft (9) Swindling (10) Smuggling (11) Violations under the E-Commerce Act of 2000; (12) Hijacking and other violations under Republic Act No. 6235; destructive arson and murder, including those perpetrated by terrorists against non-combatant persons and similar targets; (13) Fraudulent practices and other violations under Securities Regulation Code of 2000 (14) Felonies or offenses of a similar nature that are punishable under the penal laws of other countries.

Who can be guilty of money laundering offense?

The penalty of imprisonment from six (6) months to four (4) years or a fine of not less than One hundred thousand Philippine pesos (PhP100,000.00) but not more than Five hundred thousand Philippine pesos (PhP500,000.00), or both, shall be imposed on a person convicted under Section 4(c) of this Act.

(b) Penalties for Failure to Keep Records. - The penalty of imprisonment from six (6) months to one (1) year or a fine of not less than One hundred thousand Philippine pesos (PhP100,000.00) but not more than Five hundred thousand Philippine pesos (PhP500,000.00), or both, shall be imposed on a person convicted under Section 9(b) of this Act.

May the AMLC inquire into or examine any particular deposit or investment? Yes. But only upon order of any competent court in cases of violation of this Act, when it has been established that there is probable cause that the deposits or investments are related to an unlawful activities or a money laundering offense. Exceptions: Unlawful activities defined in numbers (1), (2) and (12).

(c) Malicious Reporting. - Any person who, with malice, or in bad faith, reports or files a completely unwarranted or false information relative to money laundering transaction against any person shall be subject to a penalty of six (6) months to four (4) years imprisonment and a fine of not less than One hundred thousand Philippine pesos (PhP100,000.00) but not more than Five hundred thousand Philippine pesos (PhP500,000.00), at the discretion of the court: Provided, That the offender is not entitled to avail the benefits of the Probation Law.

May the BSP do the same inquiry and examination of any deposit or investment? Yes. When the examination is made in the course of a periodic or special examination, in accordance with the rules of examination of the BSP.

May this Act be used as a means of political harassment? Of course not. This Act shall not be used for political persecution or harassment or as an instrument to hamper competition in trade and commerce.

If the offender is a corporation, association, partnership or any juridical person, the penalty shall be imposed upon the responsible officers, as the case may be, who participated in the commission of the crime or who shall have knowingly permitted or failed to prevent its commission. If the offender is a juridical person, the court may suspend or revoke its license. If the offender is an alien, he shall, in addition to the penalties herein prescribed, be deported without further proceedings after serving the penalties herein prescribed. If the offender is a public official or employee, he shall, in addition to the penalties prescribed herein, suffer perpetual or temporary absolute disqualification from office, as the case may be.

Any public official or employee who is called upon to testify and refuses to do the same or purposely fails to testify shall suffer the same penalties prescribed herein.

What must be the total value or aggregate amount of ill-gotten wealth?

Yes. Any public officer against whom any criminal prosecution under a valid information under this Act in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office.

At least P50 Million. What happens if he is convicted by final judgment? (d) Breach of Confidentiality. - The punishment of imprisonment ranging from three (3) to eight (8) years and a fine of not less than Five hundred thousand Philippine pesos (PhP500,000.00) but not more than One million Philippine pesos (PhP1,000,000.00), shall be imposed on a person convicted for a violation under Section 9(c).

What is the penalty?

He shall lose all retirement or gratuity benefits under any law.

Reclusion perpetua to death. If acquitted? How is the penalty determined?

PLUNDER (RA 7080) Approved on July 12, 1991

In the imposition of penalties, the degree of participation and the attendance of mitigating circumstances shall be considered by the court.

He shall be entitled to reinstatement and to the salaries and other benefits which he failed to receive during suspension, unless in the meantime, administrative proceedings have been filed against him.

Is plunder prescriptible? Who can be guilty of Plunder?

What shall happen to the ill-gotten wealth?

1) Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt criminal acts in the aggregate amount or total value of at least P50 million.

Any or all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stocks derived from the deposit or investment thereof shall be forfeited in favor of the State.

2) Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense.

Who is a Public Officer?

Yes. It shall prescribe in 20 years. However, the right of the State to recover properties unlawfully acquired by public officers from them or from their nominees or transferees shall not be barred by prescription, laches, or estoppel.

BOUNCING CHECKS LAW Batas Pambansa Blg. 22 Any person holding any public office in the Philippine Government by virtue of an appointment, election or contract. BP.22 DOES NOT COVER MANAGER’S CHECK AND CASHIER’S CHECK. It is as good as the money it represents and is therefore deemed as cash.

What is Ill-gotten wealth? Any asset, property, business enterprise or material possession of any person, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of specific or similar criminal means or schemes.

What is the scope of the Government?

How is ill-gotten wealth acquired?

What is a Person?

1) Misappropriation, conversion, misuse, or malversation : Public funds or raids on the public treasury

It includes any natural or juridical person, unless the context indicates otherwise.

2) Receive (directly or indirectly) in connection with any government contract or project or by reason of the office or position : Commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity

BP.22 COVERS ACCOMODATION OR GUARANTEE CHECK. It includes the National Government, and any of its subdivisions, agencies or instrumentalities, including GOCCs and their subsidiaries.

Which court has competent jurisdiction over plunder cases?

5) Establishing the ff. to benefit particular persons or special interests : Agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders 6) Taking undue advantage of the ff. to unjustly enrich himself at the expense and to the damage and prejudice of the country and its citizens : Official position, authority, relationship, connection or influence

The Supreme Court ruled that BP. 22 considers the mere act of issuing an unfunded check as an offense not only against property but also against public order to stem the harm caused by these bouncing checks to the community. (Mitra vs. People, July 05, 2010) THE PRINCIPLE OF CONSPIRACY UNDER THE REVISED PENAL CODE IS APPLICABLE IN BP.22 WHICH IS A SPECIAL LAW.

The Sandiganbayan in its original jurisdiction, until otherwise provided by law. A. WAYS BY WHICH VIOLATION OF BP. 22 ARE COMMITTED.

3) Illegal or fraudulent conveyance or disposition : Assets of the Government or any of its subdivisions, agencies or instrumentalities or GOCCs and their subsidiaries 4) Obtaining, receiving or accepting (directly or indirectly) in any business enterprise or undertaking : Shares of stock, equity or any other form of interest or participation including promise of future employment

BP.22 COVERS CROSSED CHECK since it is a negotiable instrument. It falls within the coverage of BP. 22.

How is the crime of plunder established by means of evidence? It shall not be necessary to prove each and every criminal act done by the accused. It is sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy.

Will the public officer accused of plunder be suspended from office?

The gravamen of the offense punished by Batas Pambansa (B.P.) Blg. 22 is the act of making or issuing a worthless check or a check that is dishonored upon its presentation for payment – It is not the nonpayment of the obligation which the law punishes. The mere act of issuing a worthless check – whether as a deposit, as a guarantee or even as evidence of pre-existing debt – is malum prohibitum.

THE ELEMENTS OF THE FIRST PARAGRAPH OF SECTION 1 OF BP.22 ARE AS FOLLOWS: 1. The accused makes, draws or issues any check to apply to account or for value;

2. The accused knows at the time of the issuance that he or she does not have sufficient funds in, or credit with, the drawee bank for the payment of the check in full upon its presentment .

There is a prima facie evidence of knowledge of insufficiency of funds when the check was presented within 90 days from the date appearing on the check and was dishonored unless: a. such maker or drawer pays the holder thereof the amount due thereon within 5 banking days after receiving notice that such check has not been paid by the drawee, or b. makes arrangements for payment in full by the drawee of such check within (5) banking days after receiving notice of non-payment.

For violation of the “Bouncing Check Law”, deceit and damage are not essential or required. The essential element of the offense is knowledge on the part of the maker or drawer of the check of the insufficiency of his funds. The gravamen of the offense is the issuance of a bad check, not the non-payment of an obligation.

Second, Article 315, Par.2 (d) is a crime against property because the issuance of the check is used as a means to obtain a valuable consideration from the payee. On the other hand, in BP. 22, the mere act of issuing an unfunded check is an offense against public order to stem the harm caused by these bouncing checks to the community. (Mitra vs. People, July 05, 2010).

Third, in estafa, the failure of the drawer to deposit the amount necessary to secure payment of the check within 3 days from receipt of notice from the bank and or the payee or holder that said check has been dishonored for lack or insufficiency of funds is prima facie evidence of deceit constituting false pretense or fraudulent act.

the accused in this case obtain nothing when he issued the check, his debt for the payment thereof had been contracted prior to its issuance.

There is deceit when one is misled -- by guile, trickery or by other means - to believe as true what is really false. (Dy vs. People, 571 SCRA 59, November 14, 2008)

Damage as an element of estafa may consist in (1) the offended party being deprived of his money or property as a result of the defraudation; (2) disturbance in property right; or (3) temporary prejudice. (Nagrampa vs. People, 386 SCRA 412). To constitute estafa, the act of postdating or issuing a check in payment of obligation must be the efficient cause of defraudation and, as such, it should be either prior to, or simultaneous with, the act of fraud. (Nagrampa vs. People, 386 SCRA 412)

Is the 90 day-period to deposit the check an element of BP 22? No. That the check must be deposited within ninety (90) days is simply one of the conditions for the prima facie presumption of knowledge of lack of funds to arise, but it is not an element of the offense, and neither does it discharge the accused from his duty to maintain sufficient funds in the account within a reasonable time thereof. (Nagrarnpa vs. People, 386 SCRA 412). The notice of dishonor of a check may be sent to the drawer or maker, by the drawee bank, the

In B.P. 22, the failure of the drawer to pay in full the payee or holder within 5 banking days after receiving notice that the check has been rejected by the drawee bank gives rise to presumption of knowledge of insufficiency of funds or credit.

A PERSON MAY BE BOTH LIABLE FOR VIOLATION OF B.P. 22 AND ANOTHER PROVISION OF THE REVISED PENAL CODE. The filing of a criminal case under B.P. 22 shall not prejudice any liability arising from a felony committed under the Revised Penal Code.

Fourth, in estafa, the check is issued in payment of a simultaneous obligation to defraud the creditor.

B. DEFENSES IN BP. 22

In B.P. 22, the check is issued in payment of a pre-existing obligation.

WHAT ARE THE POSSIBLE DEFENSES IN B.P. 22?

Fifth, in estafa, an endorser who is with knowledge that the check is worthless and had acted with deceit is liable.

1. The presentation of the registry card, with an unauthorized signature, does not meet the required proof beyond reasonable doubt that the petitioner received such noticed, especially considering that he denied receiving it. (Suarez v. People 555, SCRA 238, June 19, 2008)

holder of the check, or the offended party. (Ambito vs. People, 579 SCRA 68, February 13, 2009)

ELEMENTS OF THE SECOND PARAGRAPH OF SECTION 1 OF BP.22. This way of violating B.P.22 suggests that at the time the check was issued, the issuer had sufficient funds in or credit with the drawee bank. However, the check was dishonored when presented for payment within 90 days from its date for failure to maintain sufficient funds or credit to cover the amount. The elements are as follows: a) any person, makes or draws and issues a check;

In B.P. 22, the persons liable are the maker, drawer and the issuer but not an endorser.

b) such person has sufficient funds in or credit with the drawee bank; c) failure to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon;

Lastly, since estafa is mala in se, good faith is a proper defense.

d) for which reason it is dishonored by the drawee bank.

B.P. 22 is mala prohibitum, it is punished by a special law and therefore, good faith is not a defense.

COMPARISON OF VIOLATION OF BP 22 FROM ESTAFA UNDER PAR. 2 [D], ARTICLE 315, OF THE REVISED PENAL CODE.

“SIMULTANEOUS OBLIGATION” FROM “PRE-EXISTING” OBLIGATION.

First, the elements of estafa under paragraph 2(d), Article 315 of the RPC are (1) the postdating or issuance of a check in payment of an obligation contracted at the time the check was issued; (2) lack of sufficiency of funds to cover the check; and (3) damage to the payee. (Cajigas vs. People, 580 SCRA 54, February 23, 2009)

“Simultaneous obligation” as an element of estafa connotes that the issuance of a check is used as a means to obtain valuable consideration from the payee. Deceit is the efficient cause for defraudation. To defraud is to deprive some right, interest, or property by deceitful devise. (People vs.Quesada, 60 Phil. 515) In the issuance of a check in payment of a “pre-existing obligation”, the drawer derives no material benefit in return as its consideration had long been delivered to him before the check was issued. Since an obligation has already been contracted,

2. Presumption of knowledge of insufficiency of funds is not conclusive as it may be rebutted by full payment. (Tan vs. Philippine Commercial International Bank 552 SCRA 532, April 23, 2008) 3. Under B.P. Blg. 22, the prosecution must prove not only that the accused issued a check that was subsequently dishonored. It must also establish that the accused was actually notified that the check was dishonored, and that he or she failed, within five (5) banking days from receipt of the notice, to pay the holder of the check the amount due thereon or to make arrangement for its payment. 4. Prescription is a proper defense. The prescriptive period is 4 years reckoned from the lapse of the five (5) banking days from notice of dishonor within which to make good the check. 5. Forgery of the signature appearing on the check (Ilusorio vs. Court of Appeals, 353 SCRA 89)

An agreement surrounding the issuance of dishonored checks is irrelevant to the prosecution for violation of Batas Pambansa Blg. 22. (Dreamwork Construction, Inc. v. Janiola 591 SCRA 466, June 30, 2009)

LACK OF VALUABLE CONSIDERATION is not A PROPER DEFENSE IN VIOLATION OF B.P. 22.

1. Administrative Circular 12-2000 does not remove imprisonment as an alternative penalty for violations of B.P. Blg. 22;

(Dreamwork Construction, Inc. v. Janiola 591 SCRA 466, June 30, 2009) NOVATION is not A PROPER DEFENSE IN B.P. 22.

2. The Judges concerned may, in the exercise of sound discretion, and taking into consideration the peculiar circumstances of each case, determine whether the imposition of a fine alone would best serve the interests of justice or whether forbearing to impose imprisonment would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the

IS “STOP PAYMENT” A PROPER DEFENSE IN BP. 22? PAYMENT” or countermand, yet if it was clear from the statement of account that the check bounced due to insufficiency of funds, the drawer of the check is still liable.Chang vs. IAC, 146 SCRA 46 BAR Q. [2002]

C. CORPORATION IN RELATION TO BP. 22 Section 1 of the law provides: “Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the check in behalf of such drawer shall be liable The officer who is accused of signing the check must receive the notice of dishonor. Constructive notice to the corporation, who has a separate personality from its officer, is not enough.

ADMINISTRATIVE CIRCULAR NO. 12-2000 refers to the imposition of penalties for violation of B.P. 22. It provides: Court has not decriminalized B.P. 22 violations, nor have removed imprisonment as an alternative penalty. Needless to say, the determination of whether the circumstances warrant the imposition of a fine alone rests solely upon the judge. Should the judge decide that imprisonment is the more appropriate penalty, Administrative Circular No. 12-2000 ought not to be deemed a hindrance. (Lunaria vs. People, 5701 SCRA 572, November 11, 2008).

ADMINISTRATIVE CIRCULAR NO. 13-2001 is a circular addressed to all judges which clarifies Administrative Circular No. 12-2000 on the penalty for violation of Batas Pambansa Blg. 22. It provides: The clear tenor and intention of Administrative Circular No. 12-2000 is not to remove imprisonment as an alternative penalty, but to lay down a rule of preference in the application of the penalties provided for in B.P. Blg. 22. The pursuit of this purpose clearly does not foreclose the possibility of imprisonment for violations of B.P. 22. Neither does it defeat the legislative intent behind the law.

Thus, Administrative Circular No. 12-2000 establishes a rule of preference in the application of the penal provisions of B.P. Blg. 22 such that where the circumstances of both the offense and the offender clearly indicate good faith or a clear mistake of fact without taint of negligence, the imposition of a fine alone should be considered as the more appropriate penalty. It is, therefore, understood that:

imperatives of justice; 3. Should only a fine be imposed and the accused be unable to pay the fine, there is no to the application of the Revised Penal Code provisions on subsidiary imprisonment.