Reviewer BP 22 AMLA Plunder PDF

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

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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. 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. What are Unlawful Activities? Any act or omission or series or combination thereof involving or having direct relation to following: (1) Kidnapping for ransom (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 (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? (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. (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 court has competent jurisdiction over a money laundering offense? 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. May a person be charged with and convicted of both the offense of money laundering and the unlawful activity as herein defined? Yes. 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. 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). 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. 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 will govern the restitution for the aggrieved party? The provisions of the New Civil Code. 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 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. 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. (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. 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. (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). PLUNDER (RA 7080) Approved on July 12, 1991 Who can be guilty of Plunder? 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. 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. 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. How is ill-gotten wealth acquired? 1) Misappropriation, conversion, misuse, or malversation : Public funds or raids on the public treasury 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 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 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 What must be the total value or aggregate amount of ill-gotten wealth? At least P50 Million. What is the penalty? Reclusion perpetua to death. How is the penalty determined? In the imposition of penalties, the degree of participation and the attendance of mitigating circumstances shall be considered by the court. What shall happen to the ill-gotten wealth? 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. Who is a Public Officer? Any person holding any public office in the Philippine Government by virtue of an appointment, election or contract. What is the scope of the Government? It includes the National Government, and any of its subdivisions, agencies or instrumentalities, including GOCCs and their subsidiaries. What is a Person? It includes any natural or juridical person, unless the context indicates otherwise.

Which court has competent jurisdiction over plunder cases? The Sandiganbayan in its original jurisdiction, until otherwise provided by law. 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? 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. What happens if he is convicted by final judgment? He shall lose all retirement or gratuity benefits under any law. If acquitted? 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? 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 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. BP.22 COVERS ACCOMODATION OR GUARANTEE CHECK. BP.22 COVERS CROSSED CHECK since it is a negotiable instrument. It falls within the coverage of BP. 22. 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. A. WAYS BY WHICH VIOLATION OF BP. 22 ARE COMMITTED. 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. 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 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; 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; d) for which reason it is dishonored by the drawee bank. COMPARISON OF VIOLATION OF BP 22 FROM ESTAFA UNDER PAR. 2 [D], ARTICLE 315, OF THE REVISED PENAL CODE. 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) 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. 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. Fourth, in estafa, the check is issued in payment of a simultaneous obligation to defraud the creditor. In B.P. 22, the check is issued in payment of a pre-existing obligation. Fifth, in estafa, an endorser who is with knowledge that the check is worthless and had acted with deceit is liable. In B.P. 22, the persons liable are the maker, drawer and the issuer but not an endorser. Lastly, since estafa is mala in se, good faith is a proper defense. B.P. 22 is mala prohibitum, it is punished by a special law and therefore, good faith is not a defense. “SIMULTANEOUS OBLIGATION” FROM “PRE-EXISTING” OBLIGATION. “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, 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) 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. B. DEFENSES IN BP. 22 WHAT ARE THE POSSIBLE DEFENSES IN B.P. 22? 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) 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. (Dreamwo...