G.R. No. 210266. June 7, 2017. Anthony de Silva Cruz, Petitioner, vs. People of The PHILIPPINES, Respondent

11/13/2019 SUPREME COURT REPORTS ANNOTATED 826
G.R. No. 210266. June 7, 2017.*

ANTHONY DE SILVA CRUZ, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
Access Devices Regulation Act of 1998; Access Devices; Credit Cards;

Words and Phrases; Since a credit card is “any card, plate, coupon book, or
other credit device existing for the purpose of obtaining money, goods,
property, labor or services or anything of value on credit,” it is considered
an access device.—Republic Act No. 8484, otherwise known as the Access
Devices Regulation Act of 1998, defines an access device as: any card,
plate, code, account number, electronic serial number, personal
identification number, or other telecommunications service, equipment, or
instrumental identifier, or other means of account access that can be used to
obtain money, good, services, or any other thing of value or to initiate a
transfer of funds (other than a transfer originated solely by paper
instrument). Since a credit card is “any card, plate, coupon book, or other
credit device existing for the purpose of obtaining money, goods, property,
labor or services or anything of value on credit,” it is considered an access
device.
Same; Same; Same; Under Section 9(a) and (e) of Republic Act (RA)
No. 8484, the possession and use of an access device is not illegal. Rather,
what is prohibited is the possession and use of a counterfeit access device.
—Section 9(a) and (e) make the possession and use of a counterfeit access
device as “access device fraud” that is punishable by law: SECTION 9.
Prohibited Acts.—The following acts shall constitute access device fraud
and are hereby declared to be unlawful: (a) producing, using, trafficking in
one or more counterfeit access devices; . . . . (e) possessing one or more
counterfeit access devices or access devices fraudulently applied for[.] A
counterfeit access device is “any access device that is counterfeit, fictitious,
altered, or forged, or an identifiable component of an access device or
counterfeit access device.” Under Section 9(a) and (e) of Republic Act No.
8484, the possession and use of an access device is not illegal. Rather, what
is prohibited is the possession and use of a counterfeit access device.
_______________
central.com.ph/sfsreader/session/0000016e637328c01e1b2a06003600fb002c009e/t/?o=False 1/23
* SECOND DIVISION.

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562 SUPREME COURT REPORTS ANNOTATED

Cruz vs. People
Therefore, the corpus delicti of the crime is not merely the access
device, but also any evidence that proves that it is counterfeit.
Criminal Law; Access Devices; Credit Cards; Possession of a
Counterfeit Access Device; Use of a Counterfeit Access Device; Penalties;
Possession of a counterfeit access device is punishable by imprisonment of
not less than six (6) years and not more than ten (10) years and a fine of ten
thousand pesos (P10,000.00) or twice the value obtained by the offense,
whichever is higher. On the other hand, use of a counterfeit access device is
punishable by imprisonment of not less than 10 years but not more than
twelve (12) years and a fine of P10,000.00 or twice the value obtained by
the offense, whichever is higher.—Possession of a counterfeit access device
is punishable by imprisonment of not less than six (6) years and not more
than 10 years and a fine of P10,000.00 or twice the value obtained by the
offense, whichever is higher. On the other hand, use of a counterfeit access
device is punishable by imprisonment of not less than 10 years but not more
than 12 years and a fine of P10,000.00 or twice the value obtained by the
offense, whichever is higher.
Remedial Law; Evidence; The rule is that no evidence shall be allowed
during trial if it was not identified and pre-marked during trial.—The rule is
that no evidence shall be allowed during trial if it was not identified and pre-
marked during trial. This provision, however, allows for an exception: when
allowed by the court for good cause shown. There is no hard and fast rule to
determine what may constitute “good cause,” though this Court has
previously defined it as any substantial reason “that affords a legal excuse.”
The trial court retains its discretion to allow any evidence to be presented at
trial even if not previously marked during pretrial. Here, the trial court
allowed the presentation of the counterfeit credit card at trial due to the
prosecution’s explanation that during pretrial, the counterfeit credit card was
still in the Criminal Investigation and Detective Group’s custody.
Same; Same; Witnesses; Credibility of Witnesses; The determination of
the credibility of witnesses is a question of fact that should not be reviewed
by this Court in a petition for review on certiorari under Rule 45 of the
Rules of Court.—The determination of the credibility of witnesses is a
question of fact that should not be reviewed by this Court in a petition for
review on certiorari under Rule

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Cruz vs. People
45 of the Rules of Court. There are exceptions to this rule; however,

none of those exceptions are present here. Even if we were to review the
witnesses’ testimonies, petitioner’s argument would still be unmeritorious.
Two (2) transactions took place on the night of April 18, 2006: the purchase
of perfumes at Counter 15 and the purchase of shoes at Counter 12. Lim, the
cashier for Counter 12, and Wong, the cashier for Counter 15, were called to
testify on two (2) different transactions. There can be no inconsistency
between two witnesses testifying on two different occurrences.
Same; Same; Flight; The flight of an accused discloses a guilty
conscience.—“[T]he flight of an accused discloses a guilty conscience.”
Petitioner does not deny that he tried to escape from Duty Free Fiesta Mall
when the police arrived. Taken together with the prosecution’s evidence, it
is enough to convince this Court that petitioner is guilty beyond reasonable
doubt of possession and use of a counterfeit access device.
Attorney-Client Relationships; The rule is that negligence of a counsel
binds the client except: when counsel exhibits reckless or gross negligence
that deprives the client of due process; when the outright application of the
rule results in the deprivation of liberty and property through a technicality;
or when it serves the interests of justice.—The rule is that negligence of a
counsel binds the client except: when counsel exhibits reckless or gross
negligence that deprives the client of due process; when the outright
application of the rule results in the deprivation of liberty and property
through a technicality; or when it serves the interests of justice. Petitioner
alleges that Atty. Musico negligently failed to attend scheduled hearings
before the trial court, conduct cross-examination of the witnesses, and
present evidence on his behalf. Records, however, show that petitioner’s
counsel was not prevented from objecting to the presentation of the
counterfeit credit card during trial, which he repeatedly did and even offered
continuing objection. Atty. Musico was also able to cross-examine Lim and
Redentor Quejada, the two witnesses petitioner claimed had inconsistent
testimonies. Atty. Musico even filed a Demurrer to Evidence after the
prosecution made its formal offer.
PETITION for review on certiorari of the decision and resolution of

the Court of Appeals.

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Cruz vs. People
The facts are stated in the opinion of the Court.

Duran & Duran-Schulze Law for petitioner.
Office of the Solicitor General for respondent.
LEONEN, J.:

The possession and use of a counterfeit credit card is considered
access device fraud and is punishable by law. To successfully sustain
a conviction for possession and use of a counterfeit access device,
the prosecution must present not only the access device but also any
evidence that proves that the access device is counterfeit.
This resolves a Petition1 for Review on Certiorari assailing the
Decision2 dated July 4, 2013 and Resolution3 dated
November 26, 2013 of the Court of Appeals, which affirmed the
conviction of petitioner Anthony De Silva Cruz (Cruz) by the
Regional Trial Court4 for violation of Republic Act No. 8484,
otherwise known as the Access Devices Regulation Act of 1998.
Cruz was charged with violation of Section 9(a) and (e) of
Republic Act No. 8484, which provides:
SECTION 9. Prohibited Acts.—The following acts shall constitute access

device fraud and are hereby declared to be unlawful:
(a) producing, using, trafficking in one or more counterfeit access devices;
....
(e) possessing one or more counterfeit access devices or access devices
fraudulently applied for[.]
_______________
1 Rollo, pp. 9-27.

2 Id., at pp. 28-41.
3 Id., at pp. 42-43.
4 Id., at pp. 46-56.

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Cruz vs. People
The Informations against him read:
Under Criminal Case No. 06-0479

That on or about the 18th day of April 2006, in the City of Parañaque,
Philippines and within the jurisdiction of this Honorable Court, the above
named accused, did then and there willfully, unlawfully and feloniously
have in his possession and control a counterfeit access device (Citibank Visa
Card with No. 4539 7207 8677 7008) in violation of the aforecited law.
CONTRARY TO LAW.
....
named accused, did then and there willfully, unlawfully and feloniously use
a counterfeit Citibank Visa Card with No. 4539 7207 8677 7008, an access
device, in buying from complainant Duty Free Philippines herein
represented by Redentor M. Quejada, one (1) pair of Ferragamo shoes worth
US$363.00, to the damage and prejudice of the complainant in the
aforementioned amount of US$363.00 or P18,876.00 more or less.
CONTRARY TO LAW.
....
named accused, did then and there willfully, unlawfully and feloniously use
a counterfeit Citibank Visa Card with No. 4539 7207 8677 7008, an access
device, in buying from complainant Duty Free Philippines herein
represented by Redentor M. Quejada, two (2) bottles of perfume worth
US$96.00, to

566

Cruz vs. People
the damage and prejudice of the complainant in the aforementioned amount

of US$96.00 or P4,992.00 more or less.
CONTRARY TO LAW.5

Cruz was arraigned on October 17, 2006, where he pleaded not
guilty for each charge.6 Trial on the merits ensued.7
According to the prosecution, on April 18, 2006, at around 7:30
p.m., Cruz allegedly tried to purchase two (2) bottles of Calvin Klein
perfume worth US$96.00 from Duty Free Philippines Fiesta Mall.
Danilo Wong (Wong), the cashier at the Perfume Section, testified
that Cruz paid for the purchase using a Citibank Visa credit card.8
The transaction was
approved, although Wong doubted the validity of the credit card
since the number at the back was not aligned.9
At around 8:00 p.m., Cruz allegedly tried to purchase a pair of
Ferragamo shoes worth US$363.00.10 Ana Margarita Lim (Lim), the
cashier on duty, facilitated the sales transaction.11 Cruz paid for the
purchase using a Citibank Visa credit card bearing the name “Gerry
Santos,” with credit card number 4539 7207 8677 7008.12 When
Lim asked for Cruz’s Duty Free shopping card, Cruz presented a
shopping card with the name of “Rodolfo Garcia.”13 Lim asked for
another identification card, and Cruz gave her a driver’s license
bearing the name “Gerry Santos.”14
_______________
5 Id., at pp. 46-47, Regional Trial Court Decision.

6 Id., at p. 47.
7 Id.
8 Id., at pp. 49 and 55.
9 Id.
10 Id., at pp. 48 and 55.
11 Id.
12 Id., at p. 55.
13 Id., at p. 30.
14 Id., at p. 48.

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Cruz vs. People
Lim proceeded to the mall’s Electronic Section to swipe the

credit card for approval.15 The card was approved, but she noticed
that the last four (4) digits of the card were not properly embossed
and its validity date started in November 2006.16 She called Citibank
to verify the credit card.17
Upon verification, Citibank informed Lim that the credit card was
counterfeit and that the real Gerry Santos was the Head of Citibank’s
Fraud Risk Management Division.18 Lim was advised to transfer the
matter to the Security Department.19
Redentor Quejada, Security Supervisor of Duty Free Philippines,
testified that he and two (2) other guards held Cruz and his
companion, Rodolfo De Silva Cruz, at the security office until the
representative from Citibank arrived. At around 9:00 p.m. to 10:00
p.m., Gerardo T. Santos, Head of Citibank’s Fraud Risk
Management Division, arrived with members of the Philippine
National Police-Criminal Investigation Detective Group, together
with a certain Atty. Abad Santos, who was allegedly Cruz’s
lawyer.20 Before Redentor Quejada could turn Cruz over to the
police, Cruz tried to escape with the help of Atty. Abad Santos. The
security officers, however, were able to close the mall’s main gate,
which prevented their escape.21
Cruz and Rodolfo De Silva Cruz were turned over to the
Criminal Investigation Detective Group and brought to Camp Crame
for questioning.22 Citibank Visa credit card number 4539 7207 8677
7008 was also turned over to the Criminal Investigation Detective
Group.23
_______________
15 Id.
16 Id.
17 Id.
18 Id.
19 Id.
20 Id., at p. 50.
21 Id., at p. 31.
22 Id., at p. 51.
23 Id., at pp. 50-51.

568
Cruz vs. People
Gerardo T. Santos (Santos) testified that he first heard of Cruz’s

name in May 2004.24 Cruz and his wife Aileen were then managing
Antonely’s Fabric Warehouse and were involved in incidents related
to credit card fraud. Santos did not file a case against them for lack
of basis. He came across Cruz’s name again in 2005, with regard to
a fraudulent transaction with a Thai restaurant in Shoemart
Megamall.25 He also testified that the credit card number was validly
issued to a certain Jessamine Bongat, and that the counterfeit credit
card had been previously used on several fraudulent occasions.26
After the prosecution formally offered their evidence, Cruz filed
a Demurrer to Evidence asserting that the credit card was
inadmissible since it was presented and offered by the prosecution in
violation of A.M. No. 03-1-09-SC.27
On August 6, 2009, Branch 274 of the Regional Trial Court of
Parañaque City denied the Demurrer to Evidence and stated that the
credit card receipts were properly identified by the witnesses.28 The
trial court also stated that the alleged counterfeit credit card was
offered in evidence by the prosecution.29
Despite notice, Cruz and his counsel did not appear during the
scheduled hearings for the presentation of his defense. Later, Cruz
manifested to the trial court that he was waiving his right to present
evidence.30
_______________
24 Id., at p. 49.
25 Id.
26 Id., at p. 53.
27 Id., at p. 31. A.M. No. 03-1-09-SC (2004), Proposed Rule on Guidelines to be
Observed by Trial Court Judges and Clerks of Court in the Conduct of Pre-Trial and
Use of Deposition-Discovery Measures.
28 Id., at pp. 31-32.
29 Id., at p. 31.
30 Id., at p. 32.

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Cruz vs. People
On May 5, 2010, the trial court rendered its Judgment31 finding

Cruz guilty beyond reasonable doubt of violation of Section 9(a) and
(e) of Republic Act No. 8484 in Criminal Case Nos. 06-0479 and
06-0480, when he used a counterfeit access device to purchase a pair
of shoes worth US$363.00. However, it acquitted Cruz in Criminal
Case No. 06-0481 upon finding that the prosecution failed to prove
his guilt beyond reasonable doubt of using a counterfeit access
device to purchase two (2) bottles of perfume worth US$96.00.32
The dispositive portion of the Judgment reads:
WHEREFORE, all the foregoing considered, the Court finds the accused
ANTHONY DE SILVA CRUZ as follows:
(1) Under Criminal Case No. 06-0479, GUILTY beyond reasonable
doubt of the offense of Violation of Section 9, par. (a) of Republic Act No.
8484, as stated in the Information, and accordingly hereby penalizes the said
accused to suffer indeterminate sentence of fine of Ten Thousand Pesos
(P10,000.00) and imprisonment of six (6) years prisión correccional as
minimum, to ten (10) years prisión mayor as maximum.
(2) Under Criminal Case No. 06-0480, GUILTY beyond reasonable
doubt of the offense of Violation of Section 9, par. (a) of Republic Act No.
8484 as stated in the Information, and accordingly hereby sentences the said
accused to suffer indeterminate sentence of fine of Ten Thousand Pesos
(P10,000.00) and imprisonment often (10) years prisión mayor as minimum
to twelve (12) years prisión mayor as maximum.
(3) Under Criminal Case No. 06-0481, NOT GUILTY of the offense of
Violation of Section 9, par. (a) of Repub-
_______________
31 Id., at pp. 46-56. The Decision, docketed as Criminal Case No. 06-0479, was
penned by Presiding Judge Fortunito L. Madrona of Branch 274 of the Regional Trial
Court, Parañaque.
32 Id., at p. 55.

570

Cruz vs. People
lic Act No. 8484 as charged in the Information, and accordingly hereby
acquits the said accused therefrom.
SO ORDERED.33

Aggrieved, Cruz appealed to the Court of Appeals. On July 4,
2013, the Court of Appeals rendered the Decision34 denying the
appeal and upholding Cruz’s conviction.
According to the Court of Appeals, the prosecution was able to
establish that Cruz had in his possession a counterfeit access
device.35 It also held that A.M. No. 03-1-09-SC does not absolutely
preclude the admission of evidence that has not been pre-marked
during pretrial since courts may, in its discretion and “for good cause
shown,” still admit the evidence.36
However, the Court of Appeals modified the penalties to delete
the words “prisión correccional” and “prisión mayor” as the law
itself37 provides the penalties to be imposed.38 The dispositive
portion of the Decision reads:
_______________
33 Id., at p. 56.
34 Id., at pp. 28-41. The Decision, docketed as C.A.-G.R. CR No. 33756, was
penned by Associate Justice Angelita A. Gacutan and concurred in by Associate
Justices Fernanda Lampas-Peralta (Chair) and Francisco P. Acosta of the Tenth
Division, Court of Appeals, Manila.
35 Id., at p. 35.
36 Id., at p. 36.
37 Rep. Act No. 8484 (1998), Sec. 10 provides:
SECTION 10. Penalties.—Any person committing any of the acts
constituting access device fraud enumerated in the immediately preceding
section shall be punished with:
(a) a fine of Ten Thousand Pesos (P10,000.00) or twice the value obtained
by the offense, whichever is greater and imprisonment for not less than six (6)
years and not more than ten (10) years, in the case of an offense under Section
9(b)-(e), and (g)-(p) which does not occur after a conviction for another
offense under Section 9;
(b) a fine of Ten Thousand Pesos (P10,000.00) or twice the value obtained
by the offense, and imprisonment for not less than ten (10) years and for not

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Cruz vs. People
WHEREFORE, the appeal is DISMISSED. The Judgment of the

Regional Trial Court of Parañaque City in Criminal Case Nos. 06-0479 &
06-0480 are AFFIRMED with MODIFICATIONS.
In Criminal Case Nos. 06-0479, accused-appellant ANTHONY DE
SILVA CRUZ is found guilty beyond reasonable doubt of violation of
Section 9(e) of R.A. No. 8484 and is sentenced to a prison term of six (6)
years, as minimum, to ten (10) years, as maximum, and to pay a fine of Ten
Thousand Pesos (P10,000.00).
In Criminal Case No. 06-0480, accused-appellant ANTHONY DE
SILVA CRUZ is found guilty beyond
reasonable doubt of violation of Section 9(a) of the R.A. No. 8484 and is
sentenced to a prison term of ten (10) years, as minimum, to twelve (12)
years, as maximum, and to pay a fine of US$726.00 or P37,752.00.
SO ORDERED.39 (Emphasis in the original)

Cruz moved for reconsideration, but the Motion was denied in
the Resolution40 dated November 26, 2013.
_______________
more than twelve (12) years, in the case of an offense under Section 9(a), and
(f) of the foregoing section, which does not occur after a conviction for
another offense under Section 9; and
(c) a fine of Ten thousand pesos (P10,000.00) or twice the value obtained
by the offense, or imprisonment for not less than twelve (12) years and not
more than twenty (20) years, or both, in the case of any offense under Section
9, which occurs after a conviction for another offense under said subsection,
or an attempt to commit the same.
38 Rollo, p. 39.
39 Id., at p. 40.
40 Id., at pp. 42-43. The Resolution was penned by Associate Justice Angelita A.
Gacutan and concurred in by Associate Justices Fernanda Lampas-Peralta and
Francisco P. Acosta of the Former Tenth Division, Court of Appeals, Manila.

572

Cruz vs. People
Hence, petitioner Anthony De Silva Cruz filed before this Court a

Petition for Review on Certiorari.41
Petitioner argues that according to A.M. No. 03-1-09-SC, the

corpus delicti or the alleged counterfeit credit card is inadmissible
since it was not marked and identified during pretrial.42 He alleges
that the testimonies of the prosecution’s witnesses were inconsistent
as to the identification of the credit card and its eventual turnover to
the police.43 Petitioner asserts that the trial court and the Court of
Appeals disregarded the constitutional presumption of innocence by
making an inference of guilt based on his silence during trial.44
The Office of the Solicitor General, on the other hand, maintains
that the counterfeit credit card is admissible as evidence since A.M.
No. 03-1-09-SC allows the trial court to admit the evidence, if, in its
discretion, there was “good cause shown” for its admission.45 It also
notes that there was no inconsistency between Lim’s and Wong’s
testimonies, since they were testifying on two different situations
they witnessed.46
The Office of the Solicitor General further argues that “the
unexplained failure of the accused to testify . . . gives rise to an
inference that he did not want to testify because he did not want to
betray himself.”47 It points out that petitioner’s attempt to flee the
premises is an implied admission of guilt.48
While the case was pending before this Court, petitioner’s
counsel withdrew49 and another counsel entered an appearance
_______________
41 Id., at pp. 9-27.

42 Id., at p. 19.
43 Id., at pp. 20-23.
44 Id., at pp. 23-24.
45 Id., at p. 92, Comment.
46 Id., at p. 94.
47 Id., at p. 95.
48 Id., at pp. 95-96.
49 Id., at p. 107.

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Cruz vs. People
on his behalf. A Motion for Leave of Court to File Supplemental

Petition for Review was filed together with the Entry of Appearance
50
of his new counsel.
Aside from reiterating that the prosecution witnesses’ testimonies
were inconsistent with each other,51 petitioner insists that his former
counsel negligently defended his cause by failing to present
evidence on his behalf and failing to cross-examine the
prosecution’s witnesses.52 Petitioner adds that Redentor Quejada
was not duly authorized by Duty Free Philippines to file the
complaint on its behalf based on an invalid Special Power of
Attorney.53 Thus, he prays that the July 4, 2013 Decision and
November 26, 2013 Resolution be reversed, or in the alternative, the
case be remanded to the trial court for the presentation of his
evidence.54
The issues for resolution are:
First, whether the prosecution was able to prove beyond
reasonable doubt that petitioner was guilty of violating Section 9(a)
and (e) of Republic Act No. 8484. Corollary to this is whether the
counterfeit access device can still be presented in trial despite not
having been presented and marked during pretrial; and
Second, whether the negligence of petitioner’s former counsel
binds petitioner.

I

Republic Act No. 8484, otherwise known as the Access Devices
Regulation Act of 1998, defines an access device as:
_______________
50 Id., at pp. 110-127. The Entry of Appearance was noted by this Court in a
Resolution dated August 31, 2016.
51 Id., at p. 118.
52 Id., at pp. 121-123.
53 Id., at pp. 115-118.
54 Id., at p. 124.

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Cruz vs. People
any card, plate, code, account number, electronic serial number, personal
identification number, or other telecommunications service, equipment, or
instrumental identifier, or other means of account access that can be used to

obtain money, good, services, or any other thing of value or to initiate a
transfer of funds (other than a transfer originated solely by paper
instrument).55

Since a credit card is “any card, plate, coupon book, or other
credit device existing for the purpose of obtaining money, goods,
property, labor or services or anything of value on credit,”56 it is
considered an access device.
Section 9(a) and (e) make the possession and use of a counterfeit
access device as “access device fraud” that is punishable by law:
SECTION 9. Prohibited Acts.—The following acts shall constitute access

device fraud and are hereby declared to be unlawful:
(a) producing, using, trafficking in one or more counterfeit access
devices;
....
(e) possessing one or more counterfeit access devices or access
devices fraudulently applied for[.]

A counterfeit access device is “any access device that is
counterfeit, fictitious, altered, or forged, or an identifiable
component of an access device or counterfeit access device.”57
Under Section 9(a) and (e) of Republic Act No. 8484, the possession
and use of an access device is not illegal. Rather, what is prohibited
is the possession and use of a counterfeit access device. Therefore,
the corpus delicti of the crime is not merely
_______________
55 Rep. Act No. 8484 (1998), Sec. 3(a).

56 Id., Sec. 3(f).
57 Id., Sec. 3(b).

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Cruz vs. People
the access device, but also any evidence that proves that it is
counterfeit.
Petitioner was found in possession of Citibank Visa credit card

number 4539 7207 8677 7008, which bore the name “Gerry
Santos.”58 He used the same credit card to purchase Ferragamo
shoes worth US$363.00 at Duty Free Fiesta Mall.59 Citibank Visa
credit card number 4539 7207 8677 7008 was later proven to be a
counterfeit access device.60
Possession of a counterfeit access device is punishable by
imprisonment of not less than six (6) years and not more than 10
years and a fine of P10,000.00 or twice the value obtained by the
offense, whichever is higher. On the other hand, use of a counterfeit
access device is punishable by imprisonment of not less than 10
years but not more than 12 years and a fine of P10,000.00 or twice
the value obtained by the offense, whichever is higher:
SECTION 10. Penalties.—Any person committing any of the acts

constituting access device fraud enumerated in the immediately preceding
section shall be punished with:
(a) a fine of Ten Thousand Pesos (P10,000.00) or twice the value
obtained by the offense, whichever is greater and imprisonment for
not less than six (6) years and not more than ten (10) years, in the
case of an offense under Section 9(b)-(e), and (g)-(p) which does not
occur after a conviction for another offense under Section 9;
(b) a fine of Ten Thousand Pesos (P10,000.00) or twice the value
obtained by the offense, and imprisonment for not less than ten (10)
years and for not more than twelve (12) years, in
_______________
58 Rollo, pp. 35 and 55.

59 Id.
60 Id.

576

Cruz vs. People
the case of an offense under Section 9(a) and (f) of the foregoing
section, which does not occur after a conviction for another offense
under Section 9[.]61
Petitioner, having been found guilty beyond reasonable doubt,

was sentenced to suffer the penalty of imprisonment of 10 years as
minimum to 12 years as maximum and a fine of US$726.00 for
violation of Section 9(a) of Republic Act No. 8484. He was also
sentenced to suffer the penalty of imprisonment of six (6) years as
minimum to 10 years as maximum and a fine of P10,000.00 for
violation of Section 9(e) of Republic Act No. 8484.62

II
Petitioner argues that according to A.M. No. 03-1-09-SC,63 the
alleged counterfeit credit card should not have been admitted as
evidence because it was not pre-marked during pretrial.64
A.M. No. 03-1-09-SC, Sec. I(A)(2) provides that:
2. The parties shall submit, at least three (3) days before the pretrial,
pretrial briefs containing the following:
....
d. The documents or exhibits to be presented, stating the purpose
thereof. (No evidence shall be allowed to be presented and offered
during the trial in support of a party’s evidence-in-chief other than
those that had been earlier identi-
_______________
61 Rep. Act No. 8484 (1998), Sec. 10.

62 Rollo, p. 40.
63 Re: Proposed Rule on Guidelines to be Observed by Trial Court Judges and
Clerks of Court in the Conduct of Pre-Trial and Use of Deposition-Discovery
Measures (2004).
64 Rollo, p. 16.

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Cruz vs. People
fied and pre-marked during the pretrial, except if allowed by the

court for good cause shown)[.]

The rule is that no evidence shall be allowed during trial if it was
not identified and pre-marked during trial. This provision, however,
allows for an exception: when allowed by the court for good cause
shown. There is no hard and fast rule to determine what may

constitute “good cause,” though this Court has previously defined it
as any substantial reason “that affords a legal excuse.”65
The trial court retains its discretion to allow any evidence to be
presented at trial even if not previously marked during pretrial. Here,
the trial court allowed the presentation of the counterfeit credit card
at trial due to the prosecution’s explanation that during pretrial, the
counterfeit credit card was still in the Criminal Investigation and
Detective Group’s custody:
Court: Additional direct?

Pros. Rodriguez: Yes, additional direct. For identification only of the credit
card. The credit card is already here.
Atty. De Guia: Your Honor, we would like to put our continuing objection to
the presentation of the credit card because it was not presented during
pretrial.
Pros. Rodriguez: This credit card, Your Honor, is part of Exhibit “F,” Your
Honor.
Atty. De Guia: In fact, Your Honor, if I am not mistaken, this is supposed to
be the cross-examination already of the . . .
_______________
65 Fortune Corporation v. Court of Appeals, G.R. No. 108119, January 19, 1994,
229 SCRA 355, 371 [Per J. Regalado, Second Division].

578

Cruz vs. People
Pros. Rodriguez: We made a reservation considering that this document was

not available during pretrial, Your Honor.
Atty. De Guia: Precisely, Your Honor, that’s our objection.
Pros. Rodriguez: But it forms part of Exhibit F, Your Honor, the
Certification that this card is not a genuine card of the Citibank.
Atty. De Guia: But then precisely, Your Honor, the prosecutor is alleging
that this credit card is actually the document, their failure to present them
during pretrial and mark properly, this is the consequence of their
omission, Your Honor, with due respect.
Pros. Rodriguez: During the pretrial, this card was not available at that time.
At that time this card was not yet available, it was in the custody of the
police. The police never turned over this card to us.

Atty. De Guia: That’s precisely the reason, Your Honor, that the prosecution
had ample time to present their case, make their case before filing this
complaint, this information. And their failure should be taken against
them, Your Honor. The rule on pretrial order is mandatory, Your Honor.
Any other evidence not presented in the pretrial shall be excluded.
Pros. Rodriguez: The defense is very desperate, Your Honor, on
technicalities, but then this card forms part of Exhibit F where it is
specifically mentioned.
Court: It should form part of exhibit?

579
VOL. 826, JUNE 7, 2017 579

Cruz vs. People
Pros. Rodriguez: Exhibit F, Your Honor, the Certification that this card is not
the . . .
Court: The certification of Citibank?
Pros. Rodriguez: Yes, that this card is not a genuine card. So this is F-1.
Court: How come that it will be certification? That card?
Pros. Rodriguez: No, that this card is not the — because this is a . . .
Court: What is the certification of the Citibank Exhibit F? Does it mention
that that card is part?
Pros. Rodriguez: Yes, Your Honor. At this point, exhibiting to this
Honorable Court Exhibit “F” reads that, “Citibank Visa Card with
embossed account number 4539-7207-8677-7008,” which is the physical
evidence in this case presented to this Court, is a counterfeit, Your
Honor. So, this is only part of Exhibit F.
Court: Okay, the Court will allow that.
Atty. De Guia: We will just put our continuing objection on record, Your
Honor.66 (Emphasis supplied)

The prosecution was able to present and mark during pretrial
Citibank’s certification that the access device used was counterfeit. It
is this certification that makes the possession and use of the access
device illegal. Therefore, the trial court determined that the access
device could still be presented at trial since it merely formed part of
an exhibit that had already been presented and marked during
pretrial.
_______________
66 Rollo, pp. 57-61, TSN dated August 1, 2007.

580

Cruz vs. People
III

Petitioner points out the alleged inconsistencies in the
testimonies of Ana Margarita Lim and Danilo Wong.67 Wong
testified that the credit card presented in trial was not the same credit
card that petitioner used in purchasing the Calvin Klein perfumes
worth US$96.00.68
The determination of the credibility of witnesses is a question of
fact that should not be reviewed by this Court in a petition for
review on certiorari under Rule 45 of the Rules of Court.69 There
are exceptions to this rule;70 however, none of those exceptions are
present here. Even if we were to review the witnesses’ testimonies,
petitioner’s argument would still be unmeritorious.
_______________
67 Id., at pp. 20-21.

68 Id., at p. 49.
69 See Caluag v. People, 599 Phil. 717, 724-725; 580 SCRA 575, 583 (2009) [Per
J. Quisumbing, Second Division], citing Lamis v. Ong, 504 Phil. 84, 90; 466 SCRA
510, 517 (2005) [Per J. Sandoval-Gutierrez, Third Division].
70 See Medina v. Asistio, Jr., 269 Phil. 225, 232; 191 SCRA 218, 223-224 (1990)
[Per J. Bidin, Third Division]: “(1) When the conclusion is a finding grounded
entirely on speculation, surmises or conjectures; (2) When the inference made is
manifestly mistaken, absurd or impossible; (3) Where there is a grave abuse of
discretion; (4) When the judgment is based on a misapprehension of facts; (5) When
the findings of fact are conflicting; (6) When the Court of Appeals, in making its
findings, went beyond the issues of the case and the same is contrary to the
admissions of both appellant and appellee; (7) The findings of the Court of Appeals
are contrary to those of the trial court; (8) When the findings of fact are conclusions
without citation of specific evidence on which they are based; (9) When the facts set
forth in the petition as well as in the petitioner’s main and reply briefs are not
disputed by the respondents; and (10) The finding of fact of the Court of Appeals is
premised on the supposed absence of evidence and is contradicted by the evidence on

record.”

581
VOL. 826, JUNE 7, 2017 581

Cruz vs. People
Two (2) transactions took place on the night of April 18, 2006:
the purchase of perfumes at Counter 1571 and the purchase of shoes
at Counter 12.72 Lim, the cashier for Counter 12, and Wong, the
cashier for Counter 15, were called to testify on two (2) different
transactions. There can be no inconsistency between two witnesses
testifying on two different occurrences.
Petitioner also points out other inconsistencies in the prosecution
witnesses’ testimonies, such as whom among Lim and Redentor
Quejada turned over the credit card to the
police;73 whether petitioner introduced himself;74 and why Lim did
not bother to make a copy of petitioner’s driver’s license.75
These alleged inconsistencies are minor and do not detract from
the conclusion that petitioner used a counterfeit access device in the
purchase of goods.
In any case, the trial court found these witnesses credible. Its
assessment on the credibility of the witnesses is entitled to great
weight and respect, especially if it is affirmed by the Court of
Appeals.76
_______________
71 Rollo, p. 49.
72 Id., at p. 48.
73 Id., at pp. 21-22.
74 Id., at p. 22.
75 Id.
76 See People v. Diu, 708 Phil. 218, 232; 695 SCRA 229, 243 (2013) [Per J.
Leonardo-De Castro, First Division]: “Thus, it has been an established rule in
appellate review that the trial court’s factual findings — including its assessment of
the credibility of the witnesses, the probative weight of their testimonies, and the
conclusions drawn from the factual findings — are accorded great respect and even
conclusive effect. These factual findings and conclusions assume greater weight if
they are affirmed by the Court of Appeals.”

582

Cruz vs. People
“[T]he flight of an accused discloses a guilty conscience.”77

Petitioner does not deny that he tried to escape from Duty Free
Fiesta Mall when the police arrived. Taken together with the
prosecution’s evidence, it is enough to convince this Court that
petitioner is guilty beyond reasonable doubt of possession and use of
a counterfeit access device.

IV

Petitioner, now grasping at straws, argues that his previous
counsel, Atty. Edwin Michael P. Musico (Atty. Musico), negligently
defended his cause.78
The rule is that negligence of a counsel binds the client except:
when counsel exhibits reckless or gross negligence that deprives the
client of due process; when the outright application of the rule
results in the deprivation of liberty and property through a
technicality; or when it serves the interests of justice.79
Petitioner alleges that Atty. Musico negligently failed to attend
scheduled hearings before the trial court, conduct cross-examination
of the witnesses, and present evidence on his behalf.80
Records, however, show that petitioner’s counsel was not
prevented from objecting to the presentation of the counterfeit credit
card during trial, which he repeatedly did and even offered
continuing objection.81 Atty. Musico was also able to
77 People v. Dalinog, 262 Phil. 98, 111; 183 SCRA 88, 100 (1990) [Per CJ.
Fernan, Third Division], citing People v. Anquillano, 233 Phil. 456, 460-461; 149
SCRA 442, 446 (1987) [Per J. Cruz, En Banc].
78 Rollo, pp. 121-122.
79 See Dimarucot v. People, 645 Phil. 218, 227; 630 SCRA 659, 668 (2010) [Per
J. Villarama, Jr., Third Division].
80 Rollo, pp. 121-122.
81 Id., at pp. 57-61, TSN dated August 1, 2007. Petitioner’s counsel on record for
this hearing is a certain Atty. De Guia, al-

583
VOL. 826, JUNE 7, 2017 583

Cruz vs. People
cross-examine Lim and Redentor Quejada,82 the two witnesses

petitioner claimed had inconsistent testimonies. Atty. Musico even
filed a Demurrer to Evidence after the prosecution made its formal
offer.83
Although there were, indeed, instances where Atty. Musico failed
to attend the scheduled hearings,84 petitioner was never deprived of
due process. The Order85 dated February 8, 2010 of the trial court
shows it was petitioner’s decision to forego the presentation of
evidence on his behalf:

In today’s hearing, the accused through counsel manifested that
despite the resolution of the Demurrer to Evidence, the defense will
not be presenting evidence. In view whereof [sic], the defense
having considered as waiving the right to present evidence, this case
is now submitted for decision.86

The burden of proof was on the prosecution. Petitioner did not
even need to present evidence. To successfully sustain a conviction,
the prosecution must rely on the strength of its evidence, and not on
the weakness of the defense.87 The prosecution’s evidence in this
case was enough to overcome the presumption of innocence.
We will no longer discuss petitioner’s allegation that Redentor
Quejada was not authorized by Duty Free Philippines to file the
criminal complaint since petitioner failed to attach any proof to
substantiate this allegation.
_______________
though the pretrial order (id., at pp. 44-45) states that petitioner’s counsel is Atty.
Edwin Michael P. Musico.
82 Id., at pp. 49 and 51.
83 Id., at p. 31.
84 Id., at pp. 128-132.
85 Id., at p. 133.
86 Id.
87 See People v. Magallanes, 231 Phil. 89, 98; 147 SCRA 92, 101 (1987) [Per J.
Paras, Second Division].

584

Cruz vs. People
WHEREFORE, the Petition is DENIED for lack of merit. The

Decision dated July 4, 2013 and Resolution dated November 26,
2013 of the Court of Appeals in C.A.-G.R. CR No. 33756 are
AFFIRMED.
The Motion for Leave of Court to File Supplemental Petition for
Review on Certiorari dated November 30, 2015 is DENIED in view
of the denial of the Petition.
SO ORDERED.
Carpio (Chairperson) and Velasco, Jr.,** JJ., concur.

Mendoza and Martires, JJ., On Official Leave.
Petition denied, judgment and resolution affirmed.
Notes.—Evaluation of the credibility of witnesses and their

testimonies is a matter best undertaken by the trial court; it had the
unique opportunity to observe the witnesses and their demeanor,
conduct, and attitude, especially under cross-examination. (People
vs. Rayon, Sr., 689 SCRA 745 [2013])
The relationship between the credit card issuer and the credit card
holder is a contractual one that is governed by the terms and
conditions found in the card membership agreement. (BPI Express
Card Corporation vs. Armovit, 737 SCRA 542 [2014])

——o0o——
_______________
** Designated additional member per Raffle dated May 29, 2017.
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11/13/2019 SUPREME COURT REPORTS ANNOTATED 826

G.R. No. 210266. June 7, 2017.*

Access Devices Regulation Act of 1998; Access Devices; Credit Cards;

562 SUPREME COURT REPORTS ANNOTATED

VOL. 826, JUNE 7, 2017 563

45 of the Rules of Court. There are exceptions to this rule; however,

PETITION for review on certiorari of the decision and resolution of

564 SUPREME COURT REPORTS ANNOTATED

The facts are stated in the opinion of the Court.

SECTION 9. Prohibited Acts.—The following acts shall constitute access

1 Rollo, pp. 9-27.

VOL. 826, JUNE 7, 2017 565

The Informations against him read:

Under Criminal Case No. 06-0479

566 SUPREME COURT REPORTS ANNOTATED

the damage and prejudice of the complainant in the aforementioned amount

5 Id., at pp. 46-47, Regional Trial Court Decision.

VOL. 826, JUNE 7, 2017 567

Lim proceeded to the mall’s Electronic Section to swipe the

568 SUPREME COURT REPORTS ANNOTATED

Cruz vs. People

Gerardo T. Santos (Santos) testiﬁed that he ﬁrst heard of Cruz’s

VOL. 826, JUNE 7, 2017 569

On May 5, 2010, the trial court rendered its Judgment31 ﬁnding

570 SUPREME COURT REPORTS ANNOTATED

VOL. 826, JUNE 7, 2017 571

WHEREFORE, the appeal is DISMISSED. The Judgment of the

572 SUPREME COURT REPORTS ANNOTATED

Hence, petitioner Anthony De Silva Cruz ﬁled before this Court a

Petitioner argues that according to A.M. No. 03-1-09-SC, the

41 Id., at pp. 9-27.

VOL. 826, JUNE 7, 2017 573

on his behalf. A Motion for Leave of Court to File Supplemental

574 SUPREME COURT REPORTS ANNOTATED

instrumental identiﬁer, or other means of account access that can be used to

SECTION 9. Prohibited Acts.—The following acts shall constitute access

55 Rep. Act No. 8484 (1998), Sec. 3(a).

VOL. 826, JUNE 7, 2017 575

Petitioner was found in possession of Citibank Visa credit card

SECTION 10. Penalties.—Any person committing any of the acts

58 Rollo, pp. 35 and 55.

576 SUPREME COURT REPORTS ANNOTATED

Petitioner, having been found guilty beyond reasonable doubt,

61 Rep. Act No. 8484 (1998), Sec. 10.

VOL. 826, JUNE 7, 2017 577

ﬁed and pre-marked during the pretrial, except if allowed by the

shown. There is no hard and fast rule to determine what may

Court: Additional direct?

578 SUPREME COURT REPORTS ANNOTATED

Pros. Rodriguez: We made a reservation considering that this document was

police. The police never turned over this card to us.

VOL. 826, JUNE 7, 2017 579

66 Rollo, pp. 57-61, TSN dated August 1, 2007.

580 SUPREME COURT REPORTS ANNOTATED

67 Id., at pp. 20-21.

premised on the supposed absence of evidence and is contradicted by the evidence on

VOL. 826, JUNE 7, 2017 581

582 SUPREME COURT REPORTS ANNOTATED

“[T]he ﬂight of an accused discloses a guilty conscience.”77