Paulino Ungos III

Lawyer | Law Professor | Author

Tag: illegal recruitment

  • Admitted the Due Issuance of the Certification

    The accused here were charged with one (1) count of violation of the Migrant Workers and Overseas Filipinos Act of 1995, alongside ten (10) counts of estafa. With regard to the charge relating to the Migrant Workers and Overseas Filipinos Act of 1995, they were specifically accused of illegal recruitment in large scale when they conspired to

    • represent themselves to have the capacity to contract, enlist and transport workers for employment as factory workers in Korea and Italy;
    • recruit and promise employment/job placement abroad to the complainants in the case; and
    • accordingly collect and receive money from them without first securing the required license and authority from relevant government authorities.

    One of the accused (named Sagisag) countered that he was merely an administrative assistant of the agency, which, in turn, was owned by his co-accused. Sagisag alleged that he met the complainants when they purchased plane tickets for Korea, and he claimed that it was his co-accused who received the payments for the tickets, and that he was merely instructed to issue provisional receipts for the payments. Sagisag further denied conspiring with his co-accused to misrepresent and promise work in South Korea in exchange for money. He said that whenever he accepted money from the complainants, he merely did so in behalf of his co-accused De Guzman, and that in cases when he accepted money on his own behalf, he did so on the understanding that the money was for the payment of the tuition fee for the Korean language classes he conducted.

    After trial, the Regional Trial Court found the accused guilty beyond reasonable doubt of the crime of illegal recruitment in large scale, in addition to the finding of guilt beyond reasonable doubt to three (3) counts of estafa. The trial court ruled that the prosecution sufficiently established that the two elements of illegal recruitment concurred, namely:

    • that Sagisag did not have the required license or authority to engage in the recruitment and placement of workers, and
    • that Sagisag nevertheless undertook a recruitment and placement activity as defined under Article 13 (b) of the Labor Code of the Philippines, or otherwise any prohibited practice under Article 34 of the same Code.

    Specifically, it found that the first element was established by no less than the POEA Certification dated October 7, 2008 that Sagisag and his co-accused were not licensed or otherwise authorized to recruit workers for overseas employment.

    This finding was affirmed by the Court of Appeals. Sagisag went to the Supreme Court.

    The issue that reached the Court was whether the lower courts erred in convicting Sagisag.

    The Court began by stating that an illegal recruiter may be held liable for the crimes of illegal recruitment committed in large scale and estafa without risk of being put in double jeopardy, for as long as the accused has been so charged under separate Informations. Here, record showed that Sagisag was separately charged for illegal recruitment in large scale and estafa. For the Court, Sagisag was properly prosecuted simultaneously for both crimes.

    With regard to illegal recruitment, the Court stated that it is committed by a person who: undertakes any recruitment activity defined under Article 13 (b) or any prohibited practice enumerated under Articles 34 and 38 of the Labor Code of the Philippines; and does not have a license or authority to lawfully engage in the recruitment and placement of workers. It is committed in large scale when it is committed against three or more persons individually or as a group.

    Together with the Migrant Workers and Overseas Filipinos Act of 1995, the law governing illegal recruitment is the Labor Code of the Philippines which, under Article 13 (b) thereof defines recruitment and placement as “any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not x x x.” The same Code also defines and punishes illegal recruitment, under Articles 38 and 39.

    According to the Court, to prove illegal recruitment, two elements must be shown, namely:

    • the person charged with the crime must have undertaken recruitment activities, or any of the activities enumerated in Article 34 of the Labor Code of the Philippines, as amended; and
    • said person does not have a license or authority to do so.

    In this regard, the Court said that it is not the issuance or signing of receipts for the placement fees that makes a case for illegal recruitment, but rather the undertaking of recruitment activities without the necessary license or authority.

    The Court then added that to establish that the offense of illegal recruitment was conducted in a large scale, it must be proven that the accused:

    • engaged in acts of recruitment and placement of workers defined under Article 13 (b) or in any prohibited activities under Article 34 of the Labor Code of the Philippines;
    • has not complied with the guidelines issued by the Secretary of Labor and Employment, particularly with respect to the securing of a license or an authority to recruit and deploy workers, either locally or overseas; and
    • commits the unlawful acts against three or more persons, individually or as a group.

    The Court mentioned that all three elements have been established beyond reasonable doubt.

    In the present case, the Court found that the accused engaged in recruitment and placement activities without the requisite authority, and were therefore properly charged with illegal recruitment.

    The Court considered the attack of Sagisag on the admissibility of the POEA Certification which stated that he had no authority or license to recruit for overseas employment, since said document was not authenticated in court by the signatory thereto. However, such attack was not found to be meritorious, for record showed that the parties, which included Sagisag, had stipulated on the veracity and probative import of the POEA Certification. The Court stated that accused Sagisag may not now turn back on the stipulations and then question the admissibility of a crucial document, the due issuance of which he stipulated and agreed on.

    The Court also found without merit Sagisag’s reliance on the Equipoise Rule, which provides that where the evidence in a criminal case is evenly balanced, the constitutional presumption of innocence tilts the scales in favor of the accused. The Court pointed out that the rule was inapplicable to the case of Sagisag because, contrary to his submission, the evidence submitted and evaluated by both lower courts mounted high against his denial and ineffective and uncorroborated feigning of innocence. The total evidence presented by both parties, said the Court, was asymmetrical, with the prosecution’s submissions indubitably demonstrating Sagisag’s guilt.

    The Court accordingly affirmed the conviction of Sagisag.

    Further reading:

    • People v. Bautista, G.R. No. 218582, September 3, 2020.

  • But One of the Three Witnesses Recanted his Testimony

    The Office of the City Prosecutor of Makati filed an information charging the accused-appellant and her two co-accused with illegal recruitment committed in large scale under the Migrant Workers and Overseas Filipino Act of 1995.1Republic Act No. 8042, as amended by Republic Act No. 10022, Section 6(n) of which provides: “(n) x x x Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group.”

    The State presented four witnesses, namely: Virgilio Caniazares, Reynaldo Dahab, Basilio Miparanum and PO3 Raul Bolido.

    Worthy of note is what happened to Dahab, one of the witnesses. Dahab declared that on 27 January 27 2001, he had met the accused-appellant at the Guadalupe Branch of Jollibee to pay P2,500.00 for his medical examination. A week later, he had undergone the three-day training in Mandaluyong City, for which he paid P2,500.00. The accused-appellant had then demanded from him the placement fee of P25,000.00. When Dahab was unable to raise the amount, the accused-appellant was not seen again. He filed a complaint against the accused-appellant with the police authorities.

    Subsequently, Dahab recanted his testimony, and stated that he had only requested assistance from the accused-appellant regarding his medical examination. He insisted that he had voluntarily paid P5,000.00 to her, and she had then paid the amount to the Medical Center or his medical examination.

    The Regional Trial Court, nonetheless, convicted the accused-appellant for illegal recruitment committed in large scale.

    The accused-appellant asserts that the Regional Trial Court, as well as the Court of Appeals, unreasonably disregarded Dahab’s recantation. The recantation would have rendered her liable only for simple illegal recruitment instead of illegal recruitment committed in large scale.

    The Supreme Court found this assertion untenable. The Court ruled:

    Dahab’s supposed recantation to the effect that he had only sought the assistance of the accused-appellant for his medical examination by no means weakened or diminished the Prosecution’s case against her. Its being made after he had lodged his complaint against her with the PNP-CIDG (in which he supplied the details of his transactions with her) and after he had testified against her in court directly incriminating her rendered it immediately suspect. It should not be more weighty than his first testimony against her which that was replete with details. Its being the later testimony of the Dahab did not necessarily cancel his first testimony on account of the possibility of its being obtained by coercion, intimidation, fraud, or other means to distort or bend the truth.

    Recantation by a witness is nothing new, for it is a frequent occurrence in criminal proceedings. As a general rule, it is not well regarded by the courts due to its nature as the mere afterthought of the witness. To be given any value or weight, it should still be subjected to the same tests for credibility in addition to its being subject of the rule that it be received with caution. The criminal proceedings in which sworn testimony has been given by the recanting witness would be rendered a mockery, and put at the mercy of the unscrupulous witness if such testimony could be easily negated by the witness’s subsequent inconsistent declaration. The result is to leave without value not only the sanctity of the oath taken but also the solemn rituals and safeguards of the judicial trial. If only for emphasis, we reiterate that it is “a dangerous rule to reject the testimony taken before the court of justice simply because the witness who has given it later on changed his mind for one reason or another, for such a rule will make a solemn trial a mockery and place the investigation at the mercy of unscrupulous witnesses.”

    Further reading:

    • People v. Bayker, G.R. No. 170192, February 10, 2016.

  • Only an Applicant; Not a Recruiter

    Recruitment and Placement

    The Labor Code of the Philippines1Under Article 13 (b) defines recruitment and placement as

    “any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers; and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not.”

    Illegal Recruitment

    On the other hand, the Labor Code of the Philippines2Under Article 38 defines illegal recruitment as

    “any recruitment activities, including the prohibited practices enumerated under Article 34, to be undertaken by non-licensees or non-holders of authority.”

    Illegal recruitment under the Labor Code of the Philippines3Article 38 encompasses recruitment activities for both local and overseas employment undertaken by non-licensees or non-holders of authority.

    Illegal recruitment is thus committed by persons who, without authority from the government, give the impression that they have the power to send workers abroad for employment purposes.

    Illegal Recruitment in Large Scale

    The crime of illegal recruitment in large scale is committed when the following elements concur:

    • the offender has no valid license or authority required by law to enable one to engage lawfully in recruitment and placement of workers;
    • he or she undertakes either any activity within the meaning of “recruitment and placement” defined under Article 13, paragraph b, or any prohibited practices enumerated under Article 34 of the Labor Code; and
    • that the accused commits the acts against three or more persons, individually or as a group.

    The Migrant Workers and Overseas Filipinos Act of 1995

    Notably, the Migrant Workers and Overseas Filipinos Act of 1995 broadened the concept of illegal recruitment under the Labor Code of the Philippines and provided stiffer penalties, especially for those that constitute economic sabotage, i.e., Illegal Recruitment Committed by a Syndicate and Illegal Recruitment in Large Scale.

    Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise, or scheme. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group.

    Part II of the Migrant Workers and Overseas Filipinos Act of 1995 defines and penalizes illegal recruitment for employment abroad, whether undertaken by a non-licensee or non-holder of authority or by a licensee or holder of authority.

    The situation in People v. Dela Cruz4G.R. No. 197808 (Notice), January 25, 2016. was that the complainants all positively identified the appellant as the person who:

    • promised them employment abroad;
    • explained the nature of their work and their corresponding salaries;
    • asked for documentary requirements such as resumés, photos, and medical certificates;
    • asked for their placement fees;
    • and either directly or ultimately received the placement fees they paid.

    Nonetheless, the appellant raised the defense that she was a mere applicant for overseas work at a travel agency, and not a recruiter.

    The Court was not convinced of said defense.

    It held that to prove illegal recruitment, it must be shown that the appellant gave complainants the distinct impression that she had the power or ability to send complainants abroad for work such that the latter were convinced to part with their money in order to be employed. The Court found the testimonies of these witnesses credible and convincing.

    It also noted that the appellant failed to present any evidence to substantiate her claim that she was recruited by the supposed owners of the agency as a domestic helper in Brunei. Record even showed that she signed some of the petty cash vouchers issued to the complainants. It thus ruled that the appellant’s mere denial failed over the positive and categorical testimonies of the complainants.

    Appellant was found guilty of committing illegal recruitment in large scale.

    Further reading:

    • People v. Dela Cruz, G.R. No. 197808 (Notice), January 25, 2016.

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  • A Mere Employee; Not the Owner

    To constitute illegal recruitment in large scale, three elements must concur:

    • The offender has no valid license or authority required by law to enable him to lawfully engage in recruitment placement of workers;
    • The offender undertakes any of the activities within the meaning of “recruitment and placement” under the Labor Code of the Philippines, or any of the prohibited practices enumerated under the Migrant Workers and Overseas Filipinos Act of 1995; and
    • The offender committed the same against three or more persons, individually or as a group.

    The Labor Code of the Philippines1Under Article 13 (b) defines “recruitment and placement” as

    “any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not.”

    It also provides that

    “any person or entity which, in any manner, offers or promises for a fee, employment to two or more persons shall be deemed engaged in recruitment and placement.”

    The Migrant Workers and Overseas Filipinos Act of 1995,2Under Section 6 in turn, provides:

    SEC. 6. Definition. — For purposes of this Act, illegal recruitment shall mean any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referring, contract services, promising or advertising for employment abroad, whether for profit or not, when undertaken by a non-licensee or non-holder of authority contemplated under Article 13(f) of Presidential Decree No, 442, as amended, otherwise known as the Labor Code of the Philippines: Provided, That any such non-licensee or non-holder who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. It shall likewise include the following acts, whether committed by any person, whether a non-licensee, non-holder, licensee or holder of authority:

    x x x

    (m) Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the worker’s fault. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage.

    Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group. (Emphases supplied.)

    The accused in this case contended that the prosecution failed to prove her guilt beyond reasonable doubt as the first element of illegal recruitment in large scale, i.e., she undertook a recruitment activity as contemplated under the law. She pointed out that:

    • She was incapable of deploying workers to Istanbul, Turkey, for she only worked as a cashier at the agency. She issued vouchers for payments made by its clients and subsequently turned over such payments to the true owner of the agency;
    • She did not entice the private complainants to apply for work overseas. The private complainants themselves testified that they learned about the job opportunities abroad from the travel agency’s employees. The accused posits that these persons were so persuasive that private complainants traveled from their respective provinces to Manila just to meet her;
    • If it were true that she received money from private complainants, she would have already fled after getting private complainants’ money so as to evade arrest; and
    • The prosecution presented a mere photocopy of the handwritten agreement that she supposedly executed. Considering that the contents of such agreement are in issue in this case, the Court wrongfully accorded much weight to such evidence.

    The Supreme Court did not agree.

    First, the accused’s allegations lacked corroborative evidence. The accused failed to present her appointment papers, identification card, payslips or other pieces of evidence to establish her employment. Record shows that the vouchers for the placement fees paid by private complainants were issued and signed by the accused herself, without any indication that she issued and signed the same on behalf of the purported true owner of RBC. The accused was even unable to substantiate the claim that the said owner received the amounts paid by the private complainants.

    Second, there was no showing that agency was licensed as a recruitment agency. On the other hand, record revealed that the Philippine Overseas Employment Administration issued a certification on May 17, 2005 stating that the accused, in her personal capacity, and the agency were not licensed to recruit workers for overseas employment.

    Third, record established that the accused had engaged in recruitment activities. Employees of the agency brought private complainants to the former’s office and introduced them to the accused. It was the accused herself who offered and promised private complainants jobs in Istanbul, Turkey, in consideration of placement fees.

    Finally, the non-presentation of the original copy of the handwritten agreement was not fatal to the prosecution’s case. A private complainant personally testified before the Regional Trial Court as to the circumstances of her recruitment by the accused, who made verbal, and not only written, promises to the said complainant of employment abroad. According to the Court, the handwritten agreement merely substantiated the private complainant’s testimony at best.

    Further reading:

    • People v. Abella y Buhain, G.R. No. 195666, January 20, 2016.

  • Penalty for Illegal Recruitment of Migrant Workers

    In a case of illegal recruitment in large scale, the trial court found the appellant guilty beyond reasonable doubt of the crime and sentenced her to suffer the indeterminate penalty of six (6) years and one (1) day as minimum to eight (8) years as maximum, and to pay a fine in the amount of P200,000.00 with subsidiary liability in case of insolvency.

    Was the penalty imposed correct?

    No.

    The Migrant Workers and Overseas Filipinos Act of 19951SEC. 6. Definition. – x x x (m) Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the worker’s fault. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage; and (n) To allow a non-Filipino citizen to head or manage a licensed recruitment/manning agency. Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group. provides that illegal recruitment shall be considered an offense involving economic sabotage if committed in large scale, viz., committed against three or more persons individually or as a group.

    Under the same law,2SEC. 7. Penalties. – x x x (b) The penalty of life imprisonment and a fine of not less than Two million pesos (P2,000,000.00) nor more than Five million pesos (P5,000,000.00) shall be imposed if illegal recruitment constitutes economic sabotage as defined therein. (as amended by Republic Act No. 10022) the penalty of life imprisonment and a fine of not less than Two Million Pesos (P2,000,000.00) nor more than Five Million Pesos (P5,000,000.00) shall be imposed if illegal recruitment constitutes economic sabotage.

    In the present case, six (6) private complainants testified against appellant’s acts of illegal recruitment, thereby rendering her acts tantamount to economic sabotage.

    For the crime of illegal recruitment in large scale, the penalty of life imprisonment and a fine of not less than Two Million Pesos (P2,000,000.00) nor more than Five Million Pesos (P5,000,000.00) with subsidiary liability in case of insolvency ought to have been imposed against the appellant.

    Further reading:

    • People v. Solina, G.R. No. 196784, January 13, 2016.