HIRD DIVISION

G.R. No. 200630, June 04, 2018

KIM LIONG, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

LEONEN, J.:

The right to confront and cross-examine an adverse witness is a basic fundamental constitutional right.
However, this is personal to the accused, who can waive the right.

This resolves the Petition for Review on Certiorari1 assailing the October 7, 2011 Decision2 and February 20,
2012 Resolution3 of the Court of Appeals in CA-G.R. SP No. 113152. The Court of Appeals found no grave
abuse of discretion in the issuance of the Orders dated August 27, 20094 and February 9, 20105 of Branch
44, Regional Trial Court, Manila declaring Kim Liong (Liong) to have waived his right to cross-examine
prosecution witness Antonio Dela Rama (Dela Rama).

In an Information6 dated January 28, 2002, Liong was charged with estafa for allegedly failing to return to
Equitable PCI Bank, despite demand, a total of US$50,955.70, which was erroneously deposited in his dollar
account. The accusatory portion of this Information read:

That on or about March 16, 2000, and for sometime subsequent thereto, in the City of Manila, Philippines,
the said accused did then and there wilfully, unlawfully and feloniously defraud the EQUITABLE PCI BANK,
Roxas Blvd. Branch, this City, a banking institution duly organized and existing under and by virtue of the
Philippine laws, with place of business located at the corner of Padre Faura and Roxas Boulevard, Ermita,
this City, represented by its Branch Manager, ERMELINDA V. CONTRERAS, in the following manner, to
wit: the said accused, being then a depositor of the said bank, with Dollar Savings Account Deposit No.
5265-00761-9, well knowing that a mistake has been inadvertently committed by the said bank in posting
and crediting to his said account the following amounts in U.S. dollars, to wit:

$ 11,989.70
14,565.30
8,610.40
15,790.30

or all in the total amount of US$50,955.70 which amount should have been instead credited and posted to
the account of WALLEN (sic) MARITIME SERVICES, INC. under Account No. 5265-00431-8, and by
reason of said misposting and crediting of the said amount to the accused's account, his dollar deposit
balance with the said bank had increased by US$50,955.70 of which, accused is under obligation to inform
the said bank as regards to the excess amount unduly posted and/or credited in his said account but instead
of doing so, did then and there make and/or cause the series of withdrawals until the full amount of said
US$50,955.70 was withdrawn from the said bank, and once in possession of the same, in serious breach of
his legal obligation to return the said amount of US$50,955.70, failed and refused and still fails and refuses
to do so despite repeated demands made upon him, and instead, with intent to defraud, with unfaithfulness
and grave abuse of trust and confidence, misappropriated, misapplied and converted the said amount of
US$50,955.70 to his own personal use and benefit, to the damage and prejudice of the said EQUITABLE PCI
BANK, Roxas Blvd. Branch, in the aforesaid amount of US$50,955.70, or its equivalent in Philippine
Currency.

Contrary to law.7

Liong was arraigned on January 20, 2003, pleading not guilty to the charge.8 The pre-trial conference was
terminated on July 13, 2004.9
The initial presentation of the prosecution's evidence was set on December 19, 2005. However, on that day,
private prosecutor Atty. Aceray Pacheco (Atty. Pacheco) requested a resetting, which was granted by the
trial court. The December 19, 2005 hearing was reset to January 26, 2006.10

On January 26, 2006, the hearing was again reset to March 30, 2006. The March 30, 2006 hearing was
likewise reset, this time, on the instance of a certain Atty. Villaflor, also one of the private prosecutors. The
initial presentation of the prosecution's evidence was, thus, moved to June 8, 2006.11

The first prosecution witness, Antonio Dela Rama (Dela Rama), was finally presented as scheduled on June
8, 2006. His direct examination was terminated on January 25, 2007, and the initial date for his cross-
examination was set on March 15, 2007. On March 15, 2007, Atty. Danilo Banares (Atty. Banares) appeared
as collaborating counsel of Atty. Jovit Ponon (Atty. Ponon), Liong's counsel of record. Atty. Banares then
moved for the resetting of the hearing to Apri119, 2007.12

On April 19, 2007, the hearing was again reset on the instance of Liong because Atty. Ponon was allegedly a
fraternity brother of the private prosecutor, Atty. Pacheco. Thus, Liong terminated the services of Atty.
Ponon and the hearing was reset to June 28, 2007.13

On July 31, 2008, the hearing was again reset to October 16, 2008 because Dela Rama had suffered a
stroke.14

On February 5, 2009, Atty. Banares failed to appear in court. Liong subsequently filed a Motion to Suspend
Proceedings and, eventually, a Motion to Dismiss.15 The hearing was reset to May 7, 2009, which seems to
have been cancelled again.16

On August 27, 2009, Atty. Banares again failed to appear in court. Thus, private prosecutor Atty. Ma. Julpha
Maningas moved that Liong be declared to have waived his right to cross-examine Dela Rama.17 The Motion
was granted by the trial court in its August 27, 2009 Order,18 hereby reproduced below, thus:

ORDER

When this case was called for hearing, accused Kim Liong appeared. However, his counsel, Atty. Dan
Banares, failed to appear.

Private prosecutor, Atty. Ma. Julpha Maningas, is present in court. She moved that the right of the accused
to cross-examine prosecution's witness, Antonio dela Rama, be deemed waived considering that his
testimony was given way back November 2006 and up to now he has not yet been cross-examined by the
defense. The same is granted.

Meanwhile, set the continuation of the presentation of prosecution's evidence on October 29, 2009 at 8:30
in the morning.

Notify Atty. Banares.

SO ORDERED.19

Liang, through a new counsel, Atty. Arnold Burigsay, filed an Entry of Appearance with Motion for
Reconsideration.20 Liang argued that his former counsel, Atty. Banares, was grossly negligent in handling his
case as he repeatedly failed to attend hearings, including the August 27, 2009 hearing where Liang was
declared to have waived his right to cross-examine Dela Rama. He did not even file a motion for
reconsideration of the August 27, 2009 Order. According to Liang, Del a Rama was a vital witness, and to
allow his testimony to remain on record without Liang having to cross-examine him would be extremely
damaging to the defense. Thus, Liong prayed that the trial court reconsider its August 27, 2009 Order and
grant him another chance to cross-examine Dela Rama.21
The trial court, however, found that Liang's abuse of his right by changing his counsels repeatedly was a
tactic to delay the proceedings. Thus, it denied Liang's Motion for Reconsideration in its February 9, 2010
Order,22 which stated:

ORDER

Accused thru his new counsel, Atty. Arnold M. Burigsay filed on October 26, 2009 an Entry of Appearance
with Motion for Reconsideration of the order of this court dated August 27, 2009 declaring the accused to
have waived his right to cross examine prosecution witness, Antonio dela Rama.

Accused admitted that the failure to cross examine prosecution witness was due to the negligence of his
counsel who failed to appear and perform his task as counsel for the accused. Accused should not be
punished for the negligence of his counsel.

In opposition to the motion, the private prosecutor thru Atty. Ma. Julpha P. Maningas averred that the cross
examination of witness Antonio dela Rama had been reset a number of times due to the fault of the accused
who kept on changing his counsel; that accused was given more than sufficient opportunities to cross
examine the said witness but simply delayed the proceedings of this case until it lapsed two (2) years.

The records will show that this case has been filed on February 12, 2002. Accused was arraigned on January
20, 2003. Pre-trial was terminated on July 13, 2004. The first witness for the prosecution in the person of
Antonio dela Rama was presented on June 8, 2006, August 3, 2006, November 9, 2006 and January 25,
2007. Because of the lengthy testimony of the witness on direct examination, the cross examination was
deferred and reset to March 15, 2007. The cross examination was reset several times upon motion of the
accused who engaged the services of the new counsel (March 15, 2007 and April 19, 2007).

On January 31, 2008[,] witness Antonio dela Rama was hospitalized. Accused also got sick on April 17,
2008. On February 5, 2009[,] accused['s] counsel, Atty. Banares[,] failed to appear. Accused likewise filed
several motions, Motion to Suspend Proceedings on February 5, 2009 and Motion to Dismiss on July 30,
2009. Again[,] on August 27, 2009[,] counsel for the accused failed to appear. No motion has been filed for
his non-appearance, hence, the court upon motion of private prosecutor, Atty. Maningas[,] in conformity of
Prosecutor Meneses, declared accused to have waived his right to cross examine the witness Antonio dela
Rama.

The direct examination of said witness was concluded on January 25, 2007. The delay in the cross
examination of the witness was due to the fault of the accused and counsel. The court has noted the ploy
employed by the accused like the tiling of baseless motions and the changing of his counsel to delay the
proceedings of this case. More than two (2) years has lapsed and still accused has not started his cross
examination. Witness has been coming to court despite his condition (after his hospitalization) only to be
reset due to the unpreparedness of accused['s] counsel or his non-appearance. The court has to put end to
this unreasonable delay.

WHEREFORE, in view of the foregoing considerations, the Motion for Reconsideration is hereby denied due
course.

SO ORDERED.23

Alleging grave abuse of discretion on the part of Presiding Judge Jose P. Morallos (Presiding Judge Morallos)
in declaring him to have waived his right to cross-examine Dela Rama, Liong filed a Petition for Certiorari
before the Court of Appeals.24

The Court of Appeals agreed with the trial court judge and denied Liang's Petition. It held that what is
essential is for an accused to be granted the opportunity to confront and cross-examine the witnesses
against him, not to actually cross-examine them. In other words, when an accused fails to avail himself or
herself of this right, he or she is deemed to have waived it.25

The Court of Appeals found that Liong repeatedly delayed his cross examination of Dela Rama specifically on
March 15, 2007, April 19, 2007, February 5, 2009, and August 27, 2009. On those dates, Liong's counsel
was either unprepared or absent. While there were hearings that were reset on the instance of witness Dela
Rama, those were caused by his then hospitalization due to stroke. The Court of Appeals likewise said that
Liong could not use in his favor the cancelled hearings on June 28, 2007, September 30, 2007, November
22, 2007, and October 16, 2008. The allegations that the hearings on these dates were cancelled due to the
absence of the public prosecutor or the trial court judge were not substantiated.26

On Liong's claim that his former counsel was grossly negligent, the Court of Appeals nevertheless said that
the negligence of counsel binds the client and, in this case, Liong was not blameless. The Court of Appeals
cited an Order dated October 8, 2003 of the former presiding judge trying the case, Presiding Judge
Edelwina Catubig Pastoral (Judge Pastoral), where Liong was admonished because he frequently changed
counsels.27

The dispositive portion of the Court of Appeals October 7, 2011 Decision28 read:

WHEREFORE, premises considered, the present petition is DENIED. Accordingly, the assailed Orders of the
Regional Trial Court dated August 27, 2009 and February 9, 2010 are hereby AFFIRMED.

SO ORDERED.29

Liong filed a Motion for Reconsideration, which the Court of Appeals denied in its February 20, 2012
Resolution,30 thus:

An assiduous evaluation of the said Motion for Reconsideration led US to conclude that there exists no
compelling and justifiable reason for US to veer away from OUR earlier pronouncement. The arguments
presented by petitioner had already been traversed and ruled upon by US. There is no need to belabor the
issues one more time.

WHEREFORE, on account of the foregoing, WE deny the said Motion for Reconsideration.

SO ORDERED.31

On March 26, 2012, Liong tiled his Petition for Review on Certiorari32 before this Court. The Office of the
Solicitor General, on behalf of the People of the Philippines, filed a Comment33 to which petitioner filed his
Reply.34

Petitioner alleges that the cross-examination of Dela Rama was reset 13 times. However, out of those 13
resettings, only four (4) are attributable to him while the rest are due to reasons beyond his control, such as
witness Dela Rama's stroke and the absence of the public prosecutor.35 He adds that the order of waiver was
made in open court and at a time when his counsel was absent; thus, he was not able to oppose the
declaration.36 Therefore, he argues that the trial court judge, Presiding Judge Morallos, gravely abused his
discretion in depriving him of the rights to confront and cross-examine prosecution witness Dela Rama.37

Respondent People of the Philippines counters that petitioner raises a question of fact, specifically on which
of the resettings are not attributable to him. It contends that questions of facts are not allowed in a Rule 45
Petition, and therefore, this Court is "not duty-bound to analyze again and weigh the evidence introduced in
and considered by the [trial court and the Court of Appeals]."38

On the supposed negligence of petitioner's former counsel, respondent argues that this was not gross so as
to discharge petitioner from any liability. Respondent alleges that petitioner benefited from the absences of
his former counsel and his other dilatory tactics such as frequently changing counsels.39 For these reasons,
the trial court judge, Presiding Judge Morallos, correctly deemed petitioner's right to cross-examine Dela
Rama as waived.

The issues for this Court's resolution are:

First, whether or not this Petition for Review on Certiorari should be denied for raising factual issues; and
Second, whether or not the trial court gravely abused its discretion in declaring as waived petitioner Kim
Liong's right to cross-examine prosecution witness Antonio Dela Rama.

This Petition must be denied.

The fundamental rights of the accused are provided in Article III, Section 14 of the Constitution:

Section 14. (1) No person shall be held to answer for a criminal offense without due process of law.

(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and
shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the
accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and
to have compulsory process to secure the attendance of witnesses and the production of evidence in his
behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided
that he has been duly notified and his failure to appear is unjustifiable. (Underscoring supplied)

"To meet the witnesses face to face" is the right of confrontation. Subsumed in this right to confront is the
right of an accused to cross-examine the witnesses against him or her, i.e., to propound questions on
matters stated during direct examination, or connected with it.40 The cross-examination may be done "with
sufficient fullness and freedom to test [the witness'] accuracy and truthfulness and freedom from interest or
bias, or the reverse, and to elicit all important facts bearing upon the issue."41

Rule 115 of the Rules of Court with its lone section is devoted entirely to the rights of the accused during
trial. Rule 115, Section 1(f) on the right to cross-examine provides:

Section 1. Rights of accused at the trial. — In all criminal prosecutions, the accused shall be entitled to the
following rights:

....

(f) To confront and cross-examine the witnesses against him at the trial.
Either party may utilize as part of its evidence the testimony of a
witness who is deceased, out of or can not with due diligence be
found in the Philippines, unavailable, or otherwise unable to testify,
given in another case or proceeding, judicial or administrative,
involving the same parties and subject matter, the adverse party
having the opportunity to cross-examine him.

Denying an accused the right to cross-examine will render the testimony of the witness incomplete and
inadmissible in evidence. "[W]hen cross-examination is not and cannot be done or completed due to causes
attributable to the party offering the witness, the uncompleted testimony is thereby rendered
incompetent."42

However, like any right, the right to cross-examine may be waived.43 It "is a personal one which may be
waived expressly or impliedly by conduct amounting to a renunciation of the right of cross-
examination."44 When an accused is given the opportunity to cross-examine a witness but fails to avail of it,
the accused shall be deemed to have waived this right.45 The witness' testimony given during direct
examination will remain on record.46 If this testimony is used against the accused, there will be no violation
of the right of confrontation.
In People v. Narca,47 the trial court deferred to another date the cross examination of the prosecution
witness on the instance of the accused. However, in the interim, the prosecution witness was murdered.
Thus, the accused moved that the testimony of the prosecution witness be stricken off the record for lack of
cross-examination. This Court rejected the argument, finding that the accused waived their right to cross-
examine the prosecution witness when they moved for postponement. It said that "mere opportunity and
not actual cross-examination is the essence of the right to cross-examine."48

In Gimenez v. Nazareno,49 the accused, after arraignment but before trial, escaped from his detention
center. Trial ensued despite his absence and the accused was subsequently convicted of murder. On appeal,
the accused contended that the testimonies against him should be stricken off the record because he failed
to exercise his right to cross-examine the witnesses against him. Rejecting this contention, this Court held
that an escapee who has been tried in absentia does not retain the rights to confront and cross-examine the
witnesses against him. These rights are personal and "by his failure to appear during the trial of which he
had notice," this Court said that the accused "virtually waived these rights."50

II

Petitioner maintains that he did not waive his right to cross-examine witness Dela Rama, attributing the
successive cancellation of hearings on the absence either of the witness, the public prosecutor, or the trial
court judge. He adds that his counsel was grossly negligent in handling the case.

However, as pointed out by respondent, the matters raised in this Petition are questions of fact not proper in
a Rule 45 petition. This Court is not a trier of facts,51 and rightfully so. This Court, as the court of last resort,
should focus more on performing "the functions assigned to it by the fundamental charter and immemorial
tradition."52 The rule, therefore, is that petitions for review on certiorari may only raise questions of law.
Rule 45, Section 1 of the Rules of Court provides:

Section 1. Filing of petition with Supreme Court. — A party desiring to appeal by certiorari from a judgment,
final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional
Trial Court or other courts, whenever authorized by law, may file with the Supreme Court a verified petition
for review on certiorari. The petition may include an application for a writ of preliminary injunction or other
provisional remedies and shall raise only questions of law, which must be distinctly set forth. The petitioner
may seek the same provisional remedies by verified motion filed in the same action or proceeding at any
time during its pendency.

It is true that this rule is subject to exceptions. This Court may review factual issues if any of the following is
present:

(1) [W]hen the findings are grounded entirely on speculation, surmises or conjectures; (2) when the
inference made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of discretion;
(4) when the judgment is based on a misapprehension of facts; (5) when the findings of facts are
conflicting; (6) when in making its findings the Court of Appeals went beyond the issues of the case, or its
findings are contrary to the admissions of both the appellant and the appellee; (7) when the findings are
contrary to the trial court; (8) when the findings 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 respondent; (10) when the findings of fact are premised on the
supposed absence of evidence and contradicted by the evidence on record; and (11) when the Court of
Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if properly
considered, would justify a different conclusion.53

Nevertheless, this Court finds that none of the exceptions applies in this case. Even if this Court considers
the facts as alleged by petitioner, it will still arrive at the conclusion that the trial court judge did not gravely
abuse his discretion in deeming petitioner's right to cross-examination as waived. Therefore, the Court of
Appeals did not err in denying petitioner's Petition for Certiorari.

The table below is a summary of the hearing dates set for the cross-examination of Dela Rama and the
reasons for their cancellation. It is based on the dates as alleged in the Petition.54
 Hearing
Reasons for Cancellation
Dates

March 15,
Atty. Banares appeared as collaborating counsel for
2007
accused's counsel of record, Atty. Ponon.

April 19,
Petitioner terminated the services of Atty. Ponon. who
2007
was allegedly a fraternity brother of private prosecutor,
Atty. Pacheco.

June 28,
No reason indicated.
2007

September
No reason indicated.
30, 2007

November
Public prosecutor was absent.
22, 2007

January 31,
Witness Dela Rama was absent.
2008

April 17,
Petitioner was indisposed, and therefore absent.
2008

June 26,
Witness Dela Rama was absent.
2008

July 31, 2008

October 16,
Presiding Judge Morallos was on leave.
2008

February 5,
Petitioner's counsel was absent.
2009

May 7, 2009
No reason indicated.

August 27,
Petitioner's counsel was absent and, on motion by the
2009
private prosecutor, Presiding Judge Morallos deemed
 petitioner's right to cross-examine witness Dela Rama as
waived.

The table shows that petitioner was given more than enough opportunity to cross-examine witness Dela
Rama. Contrary to his allegation, five (5) of the cancellations are attributable to him. For instance, the
March 15, 2007 hearing was cancelled on petitioner's motion because Atty. Banares appeared as
collaborating counsel for his counsel of record, Atty. Ponon. The next hearing set on April 19, 2007 was
again cancelled because petitioner terminated the services of Atty. Ponon who was allegedly a fraternity
brother of one of the private prosecutors, Atty. Pacheco. On April 17, 2008, petitioner was allegedly
indisposed and did not attend the hearing. On February 5, 2009, petitioner had no counsel. Finally, on
August 27, 2009, petitioner again had no counsel and Presiding Judge Morallos deemed petitioner's right to
cross-examine Dela Rama as waived.

Of course, there were cancellations due to the absence of either the prosecutor or witness Dela Rama
himself. There was even one hearing, which was cancelled because Presiding Judge Morallos was on leave.
However, even after Dela Rama suffered a stroke, he attended the hearings on February 5, 2009 and August
27, 2009, with the hearings only to be cancelled because petitioner did not have his counsel with him. These
show that petitioner failed to aggressively exercise his rights to confront and cross-examine witness Dela
Rama. The absence of counsel during the February 5, 2009 and August 27, 2009 hearings was never
explained.

Petitioner had the habit of frequently changing counsels. In an Order issued as early as October 8, 2003,
former Presiding Judge Pastoral admonished petitioner for "again" changing his counsel during pre-trial,
thus, delaying the proceedings:

The accused again has engaged another lawyer and he asked for a resetting.

Atty. Ponon is the new counsel for the accused and he asked for a last resetting.

The court warned the accused not to hire another lawyer only for the purpose of delaying this case.

For the last time[,] reset the pre-trial to December 11[,] 2003, at 8:30 o'clock in the morning.

Notify the bonding company and the accused is duly notified in open court of the resetting.

SO ORDERED.55

No gross negligence is attributable to petitioner's counsel. Ordinary diligence and prudence could have
prevented the cancellation of the hearings. If there is any negligence in this case, it is that of petitioner
himself. For failure to avail himself of the several opportunities given to him, he is deemed to have waived
his right to confront and cross-examine witness Dela Rama.

The right to confront and cross-examine witnesses is a basic, fundamental human right vested inalienably to
an accused. This right ensures that courts can confidently ferret out the facts on the basis of which they can
determine whether a crime occurred and the level of culpability of the accused. It is a basic requirement of
criminal justice.

However, this right does not exist in isolation. The State, representing the people that may have been
wronged by a crime, also has the right to due process. This means that the prosecution must not be denied
unreasonably of its ability to be able to prove its case through machinations by the accused.

When the accused abuses its option to choose his counsel as in this case, he can be deemed to have waived
his right to confrontation and cross-examination. The pattern of postponements and changes of counsel in
this case is so obvious and patent. Petitioner should have been dissuaded by any of the lawyers, unless
they, too, connived in such an amateurish strategy, which wastes the time and resources of our judicial
system.

All told, Presiding Judge Morallos did not gravely abuse his discretion in deeming as waived petitioner's right
to cross-examine prosecution witness Dela Rama. The Court of Appeals correctly denied petitioner's Petition
for Certiorari. Dela Rama's testimony given during direct examination shall remain on record. We sustain
both courts.

WHEREFORE, the Petition for Review on Certiorari is DENIED. The October 7, 2011 Decision and February
20, 2012 Resolutions of the Court of Appeals in CA-G.R. SP No. 113152 are AFFIRMED.

SO ORDERED.

Velasco, Jr., (Chairperson), Bersamin, Martires, and Gesmundo, JJ., concur.