Title
Kim Liong vs. People
Case
G.R. No. 200630
Decision Date
Jun 4, 2018
Kim Liong charged with estafa for misappropriating $50,955.70 erroneously deposited by a bank; waived cross-examination due to delays, affirmed by courts.
estafa
witness
absence
A

Case Summary (G.R. No. 200630)

Charge and Accusation

Petitioner was charged by Information with estafa for allegedly failing to return US$50,955.70 that had been erroneously credited to his dollar account instead of the account of Wallen Maritime Services, Inc. The Information alleges that petitioner, knowing of the misposting, made withdrawals totaling the misposted amount, thereby misappropriating the funds to his personal use and causing damage to the bank.

Procedural Posture Prior to Appeal

Petitioner was arraigned on January 20, 2003, and pleaded not guilty. Pre-trial terminated July 13, 2004. The prosecution’s initial presentation of evidence was repeatedly reset from the original December 19, 2005 setting and variously continued until the first prosecution witness (Dela Rama) was presented beginning June 8, 2006. After extensive direct examination, cross-examination was scheduled and later repeatedly reset. The trial court issued orders on August 27, 2009 and February 9, 2010 declaring petitioner to have waived his right to cross-examine Dela Rama; these orders were affirmed by the Court of Appeals and subsequently reviewed by the Supreme Court by petition for review on certiorari.

Presentation of Witness Dela Rama and Scheduled Cross-Examinations

Dela Rama’s direct examination concluded January 25, 2007. The initial cross-examination date was set for March 15, 2007, and was reset multiple times thereafter on dates including April 19, 2007; June 28 (or 26), 2007; September 30, 2007; November 22, 2007; January 31, 2008; April 17, 2008; June 26, 2008; July 31, 2008; October 16, 2008; February 5, 2009; May 7, 2009; and August 27, 2009. The record reflects various reasons for these postponements, among them changes of counsel, counsel absences, petitioner’s indisposition, the witness’s hospitalization/stroke, absence of the public prosecutor, and the presiding judge’s leave.

Trial Court Order Declaring Waiver (August 27, 2009)

On August 27, 2009, with petitioner present but his counsel (Atty. Danilo Banares) absent, the private prosecutor moved that petitioner’s right to cross-examine Dela Rama be deemed waived on the ground that the witness’s testimony had been taken long before and had not yet been cross-examined. The trial court granted the motion, deeming that petitioner had waived his right to cross-examine and set the continuation of the prosecution’s evidence.

Motion for Reconsideration and Trial Court’s Denial (February 9, 2010)

Petitioner, through new counsel (Atty. Arnold Burigsay), filed a motion for reconsideration arguing gross negligence by his former counsel and prejudice from being denied the ability to cross-examine an essential witness. The trial court denied reconsideration, finding that delays and repeated changes of counsel were tactics to delay proceedings, that the postponements were largely attributable to petitioner and his counsel, and that the court had no obligation to indefinitely tolerate such delay. The court noted multiple resettings over a period exceeding two years and that the witness continued to appear despite health issues.

Court of Appeals Decision

Petitioner sought certiorari relief from the trial court orders in the Court of Appeals. The CA affirmed the trial court, holding that the essence of the right to cross-examine is the opportunity to do so rather than the exercise of actual cross-examination; when an accused is afforded the opportunity but fails to avail himself of it, the right is waived. The CA also held that ordinary negligence of counsel binds the client and cited petitioner’s pattern of changing counsel and prior admonition as evidence against petitioner.

Issues Presented to the Supreme Court

The Supreme Court framed the questions as: (1) whether the petition should be denied for raising factual issues beyond the scope of a Rule 45 petition, and (2) whether the trial court gravely abused its discretion in declaring that petitioner waived his right to cross-examine Dela Rama.

Legal Framework: Confrontation and Waiver

Under the 1987 Constitution (Article III, Section 14) and the Rules of Court (Rule 115 Section 1(f) cited in the decision), the accused has the right to confront and cross-examine witnesses. Cross-examination must be afforded with sufficient fullness and freedom to test credibility. Testimony procured by direct examination that is not cross-examined may be inadmissible if the failure to cross-examine is attributable to the offering party; yet the right to cross-examine is personal and may be waived expressly or impliedly through conduct that renounces the right. Precedents cited establish that the opportunity to cross-examine, when given and declined, suffices to constitute waiver (e.g., People v. Narca), and that absence or failure to appear when notified can similarly effect waiver (e.g., Gimenez v. Nazareno).

Rule 45 Reviewability and Exceptions for Factual Review

Rule 45 limits Supreme Court review in certiorari petitions to questions of law. The Court reiterated the exceptions allowing review of factual findings only in narrow circumstances (e.g., findings grounded on conjecture, manifestly mistaken inferences, grave abuse of discretion, misapprehension of facts, conflicting findings, and similar enumerated instances). The Court found no applicable exception in this case that would justify reweighing factual determinations made by the trial court and affirmed by the Court of Appeals.

Supreme Court’s Factual Findings and Attribution of Delays

The Supreme Court reviewed the chronology of scheduled hearings and their cancellation reasons as presented in the petition’s record. It identified five postponements directly attributable to petitioner (March 15, 2007 — counsel substitution/appearance of collaborating counsel; April 19, 2007 — termination of counsel and engagement of new counsel; April 17, 2008 — petitioner’s indisposition; February 5, 2009 — absence of counsel; August 27, 2009 — absence of counsel). The Court observed that, despite the witness’s illness (including a stroke), Dela Rama appeared at hearings after his hospitalization, but the hearings were cancelled because petitioner lacked counsel. The Court also referenced an earlier admonition (October 8, 2003) from a prio

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