Ty Vs NBI

Case Name ARNEL U.
TY, MARIE ANTONETTE TY, JASON ONG, WILLY DY, and

ALVIN TY, Petitioners,
vs.
NBI SUPERVISING AGENT MARVIN E. DE JEMIL, PETRON GASUL
DEALERS ASSOCIATION, and TOTALGAZ DEALERS
ASSOCIATION, Respondents.
Topic Criminal Liability
Case No. | G.R. No. 182147 December 15, 2010
Date
Ponente VELASCO, JR., J.:
RELEVANT FACTS
Petitioners are stockholders of Omni Gas Corporation (Omni) as per Omni’s General
Information Sheet (GIS) dated March 6, 2004 submitted to the Securities and Exchange
Commission (SEC). Omni is in the business of trading and refilling of Liquefied Petroleum Gas
(LPG) cylinders and holds Pasig City Mayor’s Permit No. RET-04-001256 dated February 3,
2004.
The case all started when Joaquin Guevara Adarlo & Caoile Law Offices (JGAC Law Offices) sent
a letter dated March 22, 2004 to the NBI requesting, on behalf of their clients Shellane Dealers
Association, Inc., Petron Gasul Dealers Association, Inc., and Totalgaz Dealers Association, Inc.,
for the surveillance, investigation, and apprehension of persons or establishments in Pasig City
that are engaged in alleged illegal trading of petroleum products and underfilling of
branded LPG cylinders in violation of Batas Pambansa Blg. (BP) 33, as amended by
Presidential Decree No. (PD) 1865.
Agents De Jemil and Kawada attested to conducting surveillance of Omni in the months of
March and April 2004 and doing a test-buy on April 15, 2004. They brought eight branded LPG
cylinders of Shellane, Petron Gasul, Totalgaz, and Superkalan Gaz to Omni for refilling. The
branded LPG cylinders were refilled, for which the National Bureau of Investigation (NBI)
agents paid PhP 1,582 as evidenced by Sales Invoice No. 90040 issued by Omni on April 15,
2004. The refilled LPG cylinders were without LPG valve seals and one of the
cylinders was actually underfilled, as found by LPG Inspector Noel N. Navio of the
Liquefied Petroleum Gas Industry Association (LPGIA) who inspected the eight branded LPG
cylinders on April 23, 2004 which were properly marked by the NBI after the test-buy.
The NBI’s test-buy yielded positive results for violations of BP 33, Section 2(a) in
relation to Secs. 3(c) and 4, i.e., refilling branded LPG cylinders without authority; and Sec. 2(c)
in relation to Sec. 4, i.e., underdelivery or underfilling of LPG cylinders. Thus, on April 28, 2004,
Agent De Jemil filed an Application for Search Warrant (With Request for Temporary Custody
of the Seized Items) before the Regional Trial Court (RTC) in Pasig City, attaching, among
others, his affidavit and the affidavit of Edgardo C. Kawada, an NBI confidential agent.
On 28 April 2004, Agent De Jemil obtained a search warrant from Pasig RTC branch 167. The
NBI seized several items from Omni's premises. Subsequently, Agent De Jemil filed his
Complaint-Affidavit before the DOJ. The Assistant City Prosecutor of Pasig found probable
cause for violation of BP 33. This was later approved by Chief State Prosecutor Jovencito Zuno.
In time, petitioners appealed to the Office of the Secretary of Justice.
On October 9, 2006, the Office of the Secretary of Justice issued a

Resolution reversing and setting aside the November 7, 2005 Joint Resolution of
the Office of the Chief State Prosecutor.
Agent De Jemil moved but was denied reconsideration through another Resolution dated
December 14, 2006 prompting him to repair to the CA via a petition for certiorari under Rule 65
of the Rules of Court.
The CA revoked the resolutions of the Office of the Secretary of Justice and
reinstated the November 7, 2005 Joint Resolution of the Office of the Chief State Prosecutor.
Petitioners’ motion for reconsideration was rebuffed by the CA. Thus, the instant petition.
RATIO DECIDENDI
Issue Ratio
W/N petitioners Only Arnel U. Ty – because he is the President of Omni which is

can be held liable specifically enumerated below.
for violations of
Sec. 2 (a) and (c) Sec. 4 of BP 33, as amended, provides for the penalties and persons who are
of BP 33, as criminally liable, thus:
amended.
Sec. 4. Penalties. — Any person who commits any act herein prohibited
shall, upon conviction, be punished with a fine of not less than twenty
thousand pesos (P20,000) but not more than fifty thousand pesos
(P50,000), or imprisonment of at least two (2) years but not more than five
(5) years, or both, in the discretion of the court. In cases of second and
subsequent conviction under this Act, the penalty shall be both fine and
imprisonment as provided herein. Furthermore, the petroleum and/or
petroleum products, subject matter of the illegal trading, adulteration,
shortselling, hoarding, overpricing or misuse, shall be forfeited in favor of
the Government: Provided, That if the petroleum and/or petroleum
products have already been delivered and paid for, the offended party shall
be indemnified twice the amount paid, and if the seller who has not yet
delivered has been fully paid, the price received shall be returned to the
buyer with an additional amount equivalent to such price; and in addition,
if the offender is an oil company, marketer, distributor, refiller, dealer,
sub-dealer and other retail outlets, or hauler, the cancellation of his license.
Trials of cases arising under this Act shall be terminated within thirty (30)
days after arraignment.
When the offender is a corporation, partnership, or other juridical

person, the president, the general manager, managing partner, or such
other officer charged with the management of the business affairs thereof,
or employee responsible for the violation shall be criminally liable; in case
the offender is an alien, he shall be subject to deportation after serving the
sentence.
If the offender is a government official or employee, he shall perpetually be

disqualified from office.
Relying on the third paragraph of the above statutory proviso, petitioners

argue that they cannot be held liable for any perceived violations of BP 33,
as amended, since they are mere directors of Omni who are not in charge of
the management of its business affairs. Reasoning that criminal liability is
personal, liability attaches to a person from his personal act or omission but
not from the criminal act or negligence of another. Since Sec. 4 of BP 33, as
amended, clearly provides and enumerates who are criminally liable, which
do not include members of the board of directors of a corporation,
petitioners, as mere members of the board of directors who are not in charge
of Omni’s business affairs, maintain that they cannot be held liable for any
perceived violations of BP 33, as amended. To bolster their position, they
attest to being full-time employees of various firms as shown by the
Certificates of Employment they submitted tending to show that they are
neither involved in the day-to-day business of Omni nor managing it.
Consequently, they posit that even if BP 33, as amended, had been violated
by Omni they cannot be held criminally liable thereof not being in any way
connected with the commission of the alleged violations, and, consequently,
the criminal complaints filed against them based solely on their being
members of the board of directors as per the GIS submitted by Omni to SEC
are grossly discriminatory.
On this point, we agree with petitioners except as to petitioner Arnel U. Ty

who is indisputably the President of Omni.
It may be noted that Sec. 4 above enumerates the persons who may be held
liable for violations of the law, viz: (1) the president, (2) general manager,
(3) managing partner, (4) such other officer charged with the management
of the business affairs of the corporation or juridical entity, or (5) the
employee responsible for such violation. A common thread of the first four
enumerated officers is the fact that they manage the business affairs of the
corporation or juridical entity. In short, they are operating officers of a
business concern, while the last in the list is self-explanatory.
It is undisputed that petitioners are members of the board of directors of

Omni at the time pertinent. There can be no quibble that the enumeration of
persons who may be held liable for corporate violators of BP 33, as
amended, excludes the members of the board of directors. This stands to
reason for the board of directors of a corporation is generally a policy
making body. Even if the corporate powers of a corporation are reposed in
the board of directors under the first paragraph of Sec. 23 of the Corporation
Code, it is of common knowledge and practice that the board of directors is
not directly engaged or charged with the running of the recurring business
affairs of the corporation. Depending on the powers granted to them by the
Articles of Incorporation, the members of the board generally do not
concern themselves with the day-to-day affairs of the corporation, except
those corporate officers who are charged with running the business of the
corporation and are concomitantly members of the board, like the President.
Section 25 of the Corporation Code requires the president of a corporation
to be also a member of the board of directors.
Evidently, petitioner Arnel, as President, who manages the business affairs

of Omni, can be held liable for probable violations by Omni of BP 33, as
amended. The fact that petitioner Arnel is ostensibly the operations
manager of Multi-Gas Corporation, a family owned business, does not deter
him from managing Omni as well. It is well-settled that where the language
of the law is clear and unequivocal, it must be taken to mean exactly what it
says.
RULING
WHEREFORE, premises considered, we PARTIALLY GRANT the instant petition.

Accordingly, the assailed September 28, 2007 Decision and March 14, 2008
Resolution of the Court of Appeals in CA-G.R. SP No. 98054
are AFFIRMED with MODIFICATION that petitioners Mari Antonette Ty, Jason
Ong, Willy Dy and Alvin Ty are excluded from the two Informations charging
probable violations of Batas Pambansa Bilang 33, as amended. The Joint
Resolution dated November 7, 2005 of the Office of the Chief State Prosecutor is
modified accordingly.

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Case Name ARNEL U.

TY, MARIE ANTONETTE TY, JASON ONG, WILLY DY, and

In time, petitioners appealed to the Office of the Secretary of Justice.

On October 9, 2006, the Office of the Secretary of Justice issued a

W/N petitioners Only Arnel U. Ty – because he is the President of Omni which is

When the offender is a corporation, partnership, or other juridical

If the offender is a government official or employee, he shall perpetually be

Relying on the third paragraph of the above statutory proviso, petitioners

On this point, we agree with petitioners except as to petitioner Arnel U. Ty

It is undisputed that petitioners are members of the board of directors of

Evidently, petitioner Arnel, as President, who manages the business affairs

WHEREFORE, premises considered, we PARTIALLY GRANT the instant petition.

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