7th Judicial Region

                                           Plaintiff,                                                CRIM. CASES NOS. CBU-45303
                                                                                                                                   and CBU-45304
            - versus -                                                                              FOR: KIDNAPPING & SERIOUS
                                                                                                                        ILLEGAL DETENTION  
@"PACO", ET.AL.,


           For consideration of the Court are several motions, to wit: 

          1. Notices of Appeal filed by Atty. Eric S. Carin on behalf of the convicts James Andrew and James Anthony S. Uy, and by Atty. Sisinio M. Andales, on behalf of convict Josman Aznar, appealing to the Honorable Supreme Court the Judgment of this Court in these cases. 

          2. Motion filed by Atty. Alfonso dela Cerna - on behalf of Simplicio Paghinayan, the registered owner of the motor vehicle (van) allegedly used in the commission of the crimes in these cases - for the release of said vehicle. 

          3. Motions to transfer their respective convicted clients to the New Bilibid Prisons in Muntilupa, Rizal, and include them among the prisoners to be transferred from the BBRC to the National Penitentiary on Friday, May 14, 1999, filed by Attys. Teodoro C. Villarmia, Jr., Eric S. Carin, and Atty. Anacleto G. Debalucos for the Public Attorney's Office. 

          4. Motion for Partial Reconsideration of the Judgment in these cases filed by Private Prosecutors Attys. Honorato D. Hermosisima, Jr. and Joshua N. Dacunos with the written conformity of Cebu City Prosecutor Primo C. Miro, praying that said Judgment "be reconsidered and another one be issued sentencing the accused to two death penalties each." 

     The Court shall now resolve these pending motions in seriatim as follows: 

          1. The aforesaid Notices of Appeal - having been filed within the reglementary period, are hereby given due course.

          2. The Motion to release motor vehicle filed by Atty. de la Cerna is hereby referred to the Cebu City Prosecutor's Office for comment and recommendation.

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          3. On the aforesaid Motions to transfer the convicts in these cases - the same being requested by all the convicts (we understand that Josman Aznar is also requesting such transfer) - and being unopposed by the Prosecution - are hereby granted. The Bureau of Jail Management and Penology is, therefore, hereby ordered to effect such transfer of the convicts in these cases from the Bagong Buhay Rehabilitation Center (New Life Rehabilitation Center) in Cebu City (BBRC) to the New Bilibid Prisons in Muntinlupa - as soon as possible and by the fastest means available.

          4. As regards the Motion for Partial Reconsideration filed by the Prosecution, Rule 120, Section 7, of the Rules on Criminal Procedure pertinently provides: 

                    "Modification of Judgment - A judgment of conviction may, upon motion of the accused, be modified or set aside by the court rendering it before the judgment has become final or appeal has been perfected. A judgment in a criminal case becomes final after the lapse of the period for perfecting the appeal, or when the sentence has been partiality or totally satisfied or served, or the accused expressly waived in writing his right to appeal, or the accused has applied for probation."


          According to the above cited Rule, only the accused may move for the modification of a judgment of conviction before it becomes final or before appeal is perfected. The subject Motion was filed by the Prosecution, hence, the Court does not see how its Judgment could still be modified - so as to impose the Death Penalty on the accused instead of Reclusiones Perpetua. That would clearly be violative of the above cited provision, and the rule of law must perforce be observed.

          Moreover, this Court is now even more convinced of the righteousness of its ruling that the death penalty should not be imposed in these cases - because there are very serious doubts in the mind of this Court as to the identity of the corpse found at Sitio Tan-awan, Carcar, Cebu. 

          In the view of the Court, there appears to have been deliberate intent on the part of the Police and the Prosecution not to present frontal, close-up pictures of the face of the said corpse - which surely must have been taken or photographed both at the ravine were the corpse was found at about 10 A.M. of July 18, 1997 (per the testimony of Policemen Arturo Unabia of the Carcar Police) and at the Tupaz Funeral Parlor where the corpse was immediately brought thereafter. That woman had been dead for only about 30 hours and her face was perfectly intact and recognizable - as shown by the distant, angular photos of said corpse submitted to the Court. It is unthinkable and unbelievable that the Police had not taken frontal, close-up photos of the face

(NOTE: For the benefit of our foreign readers, blue wordings is our translation from English to Tagalog (Philippine language). ....the webmaster)

of that still undecomposed corpse - which is the most logical thing to do in cases of unidentified dead bodies. But, lo, the Police took photographs (or they submitted only photographs) of that corpse in different positions but excluding the frontal of her face. There is a frontal, close-up photo of her face - but then her face appears to be covered with a towel or something - so that her face is not visible - as if the Police did not want people especially friends of Marijoy to see the face of that corpse. WHY?

          Why did the Police and the Prosecution deliberately not present frontal, close-up photos of the face of that corpse? Which any person with average intelligence would assume must surely have been taken by the police investigators? Why did they decide to not present or in effect suppress such facial photos? Because the pictures would show that the dead woman was not Marijoy? There is legal presumption "that evidence willfully suppressed would be adverse if produced" (Rule 131, Sec. 3.e).   

          Further, a July 20, 1997 clipping of the Sun-Star Daily was identified in open court, submitted by Atty. Fidel Gonzales, reporting "that the Homicide Section Chief Florencio Diaz declared that the body of a girl found at Sitio Tan-awan does not belong to one of the missing Chiong girls." (TSN Aug. 19, 1998, p. 122). Is this the reason why the Police chose not to present the frontal close-up photos of the face of that corpse? - because the face photographed does not belong to one of the missing Chiong girls? 

          Further, in her testimony before this Court, Mrs. Thelma Chiong herself admitted that she did not actually see that corpse after it was retrieved from the ravine at Carcar. 

          "COURT STENOGRAPHER: (Repeating the question)
               Did you actually see the corpse when it was retrieved in that ravine in Carcar, Cebu ? 

               A     No, sir. 

          ATTY. TELERON:
               Q     So that at that time the only basis that you have in concluding that it was your daughter Marijoy was through the pictures? Is that correct?

               A     No, sir.

               Q     Why? What was the basis for concluding? 

               A     Because when my husband showed me the pictures, deep in my heart I knew it was my daughter Marijoy. But I just refused to accept that my daughter will be handcuffed,masking tape on her face, raped and brutally killed and dropped in a deep ravine and I just refused to accept that thing happened to my daughter. My beloved daughter will be just like that and I asked my husband if the fingerprint of that girl in Carcar will match the fingerprint of my daughter then I will accept that she is the one. But one (1) Thursday morning, I could not forget it was July 24, one (1) week, after a policemen came at lunch when we were taking our lunch and the policemen told me by saying: "Mam, that was really your daughter in Carcar because her fingerprint matched." And so, I said, "How sure are you that the fingerprint matched?" And then the policemen said to me "Mam, you pity your daughter because we had to split the fingers of your daughter because her fingers could not be fingerprinted anymore."
                    (Witness is crying)" 

     The question that thus mystifies the Court is: Is it normal and logical for the mother of girl - who was reportedly kidnapped, raped and murdered - not to even want to see the face of her dead daughter two days after, she was allegedly dumped into a ravine in order to verify if it was really her daughter? It was already July 24 (8 days after the kidnapping and 5 days after Mrs. Chiong learned from her relatives that the corpse was Marijoy) that Mrs. Chiong finally came to accept the identify of the corpse as Marijoy's - because the police then allegedly told her that the fingerprint matched. But why would a mother not even want to see if the body recovered was that of her kidnapped daughter - immediately after recovery or at least a reasonable time thereafter? (TSN Aug. 19, 1998, p. 60). 

     According to her testimony, it was on July 19, 1997 that Mrs. Chiong learned from her son Dennis and her two (2) brothers and auntie that the girl found at the bottom of the ravine at Tan-awan - whom they saw lying at the Tupaz Funeral Parlor - was Marijoy. Inspite of this knowledge, Mrs. Chiong did not think of going to that Funeral Parlor herself to look at the face and

remains of her daughter. (TSN Aug. 18, 1998 p. 62). In her recent statement to the press (Sun-Star May 12, 1999) Mrs. Thelma Chiong is reported to have said: "What frontal view is he (Judge Ocampo) asking when her (Marijoy's) body had decomposed, her face was black and blue, her body bloated. Her face was not recognizable." But Marijoy was allegedly pushed off that cliff on July 17, 1997 - her body was found at about 10 A.M. of July 18 and immediately brought to the Funeral Parlor. And the Chiongs learned that the body was Marijoy and already in the Funeral Parlor on July 19, 1997. Contrary to what Mrs. Chiong now says, the distant angular photographs submitted to the Court show that the face of that corpse was perfectly recognizable. How could a body decompose in just a matter of about 30 hours? If it was truly decomposed as Mrs. Chiong now says, then that only further proves that the corpse was not Marijoy's. 

     Further, the following portions of the testimony of Mrs. Chiong are self-explanatory: 

          ATTY. TELERON:
               Q     You read newspaper, Mrs. Chiong. Is that correct? 

               A     Yes, sir. 

               Q     Did you happen to read the SunStar newspaper dated July 23, 1997, wherein they quoted your son Dennis by saying that the corpse found in Carcar was not that of that of Marijoy because the corpse had long hair? 

               A     Yes, May I explain why he said that? 

                       She wants to explain.

          ATTY. TELERON:
                       Yes, Your Honor, by all means. 

                       Go ahead. 

               A     When I told my brother and my son if it is not Marijoy I could not accept that my daughter Marijoy will be just thrown into a deep ravine. And I told my son by saying: "You, you just believe that she is your sister? And that you just want that your sister will die that way."   
               Q     Which son you are referring to? 

               A     Dennis, Your Honor. 

                       So, she told that to Dennis.  

               Q     You mean that is the reason why Dennis denied before the  media that body was Marijoy because of what you told him? 

               A     Yes, Your Honor". (TSN Aug. 19, 1998, p. 57).  

      The Court finds Mrs. Chiong's above testimony intriguing because - if even Marijoy's brother, Dennis, himself who actually saw that corpse in the funeral parlor was doubtful that it was his sister's "because the corpse has long hair" - how much more doubtful is this Court which was never shown even a photo of the face of the corpse? 

      The Court cannot just rely blindly on the testimony of P/Insp. Edgardo Lenizo that he found the skin tissues that had been sliced off the right and left thumbs of that corpse "perfectly matched" the thumb prints of Marijoy as appearing in her Voters Registration. Because if the police wanted to make the public accept that the corpse was Marijoy's (as the Court suspects) then Police Inspector Lenizo may be regarded as a biased and interested witness. How come the members of Chiong family who allegedly saw that corpse were not made to testify in Court and identify it as Marijoy? It was only Thelma Chiong who testified that her husband Dionisio and her son Dennis had told her that they were convinced that the corpse was Marijoy's - but that was hearsay. Why
did the identification by the Chiongs of that corpse as Marijoy's have to be hearsay? Why did the Prosecution not call on Dionisio and Dennis Chiong to testify? – since they were the ones who actually saw that corpse at the funeral parlor?
          The foregoing facts brought out at the trial are the reasons why this Court still seriously doubts that the corpse found at Sitio Tan-awan, Carcar was that

of Marijoy. While there is no doubt that said corpse had been raped (according to the medico-legal) and no doubt killed (since it is a corpse) - the serious doubt is whether that corpse was Marijoy Chiong. The Court, now seriously doubts such identity, hence, it has not been proven beyond reasonable doubt that Marijoy Chiong had been raped and killed by the accused. Without such proof beyond reasonable doubt that the accused - aside from kidnapping and seriously detaining Marijoy - had also raped and/or killed her this Court cannot in conscience impose the death penalty upon said accused.  

          As for "dehumanizing treatment" the Court is not inclined to regard the act of the accused of making Jacqueline dance while they sat around her in a circle (absent sufficient proof of rape and/or homicide) - as "dehumanizing treatment" - enough to warrant imposition of the death penalty.          

     WHEREOF, the aforesaid Motion for Partial Reconsideration is hereby DENIED. 

     Given in open court this 13th day of May 1999 at Cebu City , Philippines .

                                                  signed:   MARTIN A. OCAMPO
                                                                            J u d g e


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