542 SUPREME COURT REPORTS ANNOTATED

Cuevas vs. Muñoz

*
G.R. No. 140520. December 18, 2000.

JUSTICE SERAFIN R. CUEVAS, substituted by

ARTEMIO G. TUQUERO in his capacity as Secretary of
Justice, petitioner, vs. JUAN ANTONIO MUÑOZ,
respondent.

International Law; Extradition; Principle of Double

Criminality; The issue of whether or not the rule of double
criminality applies is not for the Court of Appeals to decide in the
first place·the trial court in which the petition for extradition is
filed is vested with jurisdiction to determine whether or not the
offenses mentioned in the petition are extraditable based on the
application of the dual criminality rule and other conditions
mentioned in the applicable treaty.·However, the issue of whether
or not the rule of double criminality applies was not for the Court of
Appeals to decide in the first place. The trial court in which the
petition for extradition is filed is vested with jurisdiction to
determine whether or not the offenses mentioned in the petition are
extraditable based on the application of the dual criminality rule
and other conditions mentioned in the applicable treaty. In this
case, the presiding Judge of Branch 10 of the RTC of Manila has yet
to rule on the extraditability of the offenses for which the
respondent is wanted in Hong Kong. Therefore, respondent has
prematurely raised this issue before the Court of Appeals and now,
before this Court.

_______________

* SECOND DIVISION.

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VOL. 348, DECEMBER 18, 2000 543

Cuevas vs. Muñoz

 Same; Same; Provisional Arrests; Words and Phrases;
„Urgency‰ Construed.·Nothing in existing treaties or Philippine
legislation defines the meaning of „urgency‰ as used in the context
of a request for provisional arrest. Using reasonable standards of
interpretation, however, we believe that „urgency‰ connotes such
conditions relating to the nature of the offense charged and the
personality of the prospective extraditee which would make him
susceptible to the inclination to flee or escape from the jurisdiction
if he were to learn about the impending request for his extradition
and/or likely to destroy the evidence pertinent to the said request or
his eventual prosecution and without which the latter could not
proceed.
Same; Same; Same; The gravity of the imposable penalty upon
an accused is a factor to consider in determining the likelihood that
the accused will abscond if allowed provisional liberty.·There is
also the fact that respondent is charged with seven (7) counts of
accepting an advantage as an agent and seven (7) counts of
conspiracy to defraud, for each count of which, if found guilty, he
may be punished with seven (7) and fourteen (14) years
imprisonment, respectively. Undoubtedly, the gravity of the
imposable penalty upon an accused is a factor to consider in
determining the likelihood that the accused will abscond if allowed
provisional liberty. It is, after all, but human to fear a lengthy, if not
a lifetime, incarceration. Furthermore, it has also not escaped the
attention of this Court that respondent appears to be affluent and
possessed of sufficient resources to facilitate an escape from this
jurisdiction.
Same; Same; Same; For the provisional arrest of an accused to
continue, the formal request for extradition is not required to be filed
in court·it only needs to be received by the requested state within
the period provided by P.D. No. 1069 and the RP-Hong Kong
Extradition Agreement.·Likewise, respondentÊs contention in his
motion for release pending appeal, that his incarceration cannot
continue beyond the twenty (20) day period without a petition for
his extradition having been filed in court, is simply bereft of merit.
It is clear from the above-cited provisions, that for the provisional
arrest of an accused to continue, the formal request for extradition
is not required to be filed in court. It only need be received by the
requested state within the periods provided for by P.D. No. 1069
and the RP-Hong Kong Extradition Agreement. By no stretch of
imagination may we infer from the required receipt of the request
for extradition and its accompanying documents, the additional
requisite that the same be filed in the court within the same
periods.

544
544 SUPREME COURT REPORTS ANNOTATED

Cuevas vs. Muñoz

Same; Same; Same; Evidence; Authentication of Documents;

There is no requirement for the authentication of a request for
provisional arrest and its accompanying documents.·The request
for provisional arrest of respondent and its accompanying
documents are valid despite lack of authentication. The language of
the provisions of Section 20(b) of P.D. 1069 and Article 11(1) of the
RP-Hong Kong Extradition Agreement is clear. There is no
requirement for the authentication of a request for provisional
arrest and its accompanying documents.
Same; Same; Same; Same; Same; Authentication is required for
the request for surrender or extradition but not for the request for
provisional arrest.·Furthermore, the pertinent provision of the RP-
Hong Kong Extradition Agreement enumerates the documents that
must accompany the request, as follows: (1) an indication of the
intention to request the surrender of the person sought; (2) the text
of a warrant of arrest or judgment of conviction against that person;
(3) a statement of penalty for that offense; and (4) such further
information as would justify the issue of a warrant of arrest had the
offense been committed, or the person convicted, within the
jurisdiction of the requested party. That the enumeration does not
specify that these documents must be authenticated copies, is not a
mere omission of law. This may be gleaned from the fact that while
Article 11(1) does not require the accompanying documents of a
request for provisional arrest to be authenticated, Article 9 of the
same Extradition Agreement makes authentication a requisite for
admission in evidence of any document accompanying a request for
surrender or extradition. In other words, authentication is required
for the request for surrender or extradition but not for the request
for provisional arrest.
Same; Same; Same; Same; Same; Facsimile Copies; The process
of preparing a formal request for extradition and its accompanying
documents, and transmitting them through diplomatic channels, is
not only time-consuming but also leakage-prone·thus, it is an
accepted practice for the requesting state to rush its request in the
form of a telex or diplomatic cable, the practicality of the use of
which is conceded; In the advent of modern technology, the telegraph
or cable have been conveniently replaced by the facsimile machine,
therefore, the transmission of the request for an extraditeeÊs
provisional arrest and the accompanying documents by fax machine
more than serves the purpose.·The process of preparing a formal
request for extradition and its accompanying documents, and
transmitting them through diplomatic channels, is not only time-
consuming but also leakage-prone. There is naturally a great
likelihood of flight by criminals who get an intimation of the
pending request for their extradition. To

545

VOL. 348, DECEMBER 18, 2000 545

Cuevas vs. Muñoz

solve this problem, speedier initial steps in the form of treaty

stipulations for provisional arrest were formulated. Thus, it is an
accepted practice for the requesting state to rush its request in the
form of a telex or diplomatic cable, the practicality of the use of
which is conceded. Even our own Extradition Law (P.D. No. 1069)
allows the transmission of a request for provisional arrest via
telegraph. In the advent of modern technology, the telegraph or
cable have been conveniently replaced by the facsimile machine.
Therefore, the transmission by the Hong Kong DOJ of the request
for respondentÊs provisional arrest and the accompanying
documents, namely, a copy of the warrant of arrest against
respondent, a summary of the facts of the case against him,
particulars of his birth and address, a statement of the intention to
request his provisional arrest and the reason therefor, by fax
machine, more than serves this purpose of expediency.
Same; Same; Same; Same; Same; Same; P.D. No. 1069 and the
RP Hong Kong Extradition Agreement do not prohibit the
transmission of a request for provisional arrest by means of a fax
machine.·RespondentÊs reliance on Garvida v. Sales, Jr. is
misplaced. The proscription against the admission of a pleading
that has been transmitted by facsimile machine has no application
in the case at bar for obvious reasons. First, the instant case does
not involve a pleading; and second, unlike the COMELEC Rules of
Procedure which do not sanction the filing of a pleading by means of
a facsimile machine, P.D. No. 1069 and the RP Hong Kong
Extradition Agreement do not prohibit the transmission of a
request for provisional arrest by means of a fax machine.
Same; Same; Same; There is sufficient compliance with the
provisions of P.D. 1069 and the RP-Hong Kong Extradition
Agreement if the request for provisional arrest is made by an official
who is authorized by the government of the requesting state to make
such a request and the authorization is communicated to the
requested state.·Respondent also contends that the request for his
provisional arrest was rendered defective by the fact that the
person who made the request was not a foreign diplomat as
provided for in Section 4 (2) of P.D. No. 1069, to wit: SEC. 4.
Request: By Whom Made: Requirements.·(1) Any foreign state or
government with which the Republic of the Philippines has entered
into extradition treaty or convention, and only when the relevant
treaty or convention, remains in force, may request for the
extradition of any accused who is suspected of being in the
territorial jurisdiction of the Philippines; (2) The request shall be
made by the Foreign Diplomat of the requesting state or
government, addressed to the Secretary of Foreign Affairs, x x x.
This contention deserves scant consideration. The foregoing refers
to the re-

546

546 SUPREME COURT REPORTS ANNOTATED

Cuevas vs. Muñoz

quirements for a request for extradition and not for a request for
provisional arrest. The pertinent provisions are Article 11(2) which
states: An application for provisional arrest may be forwarded
through the same channels as a request for surrender or through
the International Criminal Police Organization (INTERPOL); and
Article 8(1) which provides: Requests for surrender and related
documents shall be conveyed through the appropriate authority as
may be notified from time to time by one party to another. Hence,
there is sufficient compliance with the foregoing if the request for
provisional arrest is made by an official who Ts authorized by the
government of the requesting state to make such a request and the
authorization is communicated to the requested state.
Same; Same; Same; Arrests; Words and Phrases; „Probable
Cause,‰ Explained.·We have defined probable cause for the
issuance of a warrant of arrest as „the existence of such facts and
circumstances that would lead a reasonably discreet and prudent
person to believe that an offense has been committed by the person
sought to be arrested.‰ The determination of probable cause is a
function of the Judge, Such is the mandate of our Constitution
which provides that a warrant of arrest shall issue only upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce. In the case of Allado v. Diokno, we
stated that personal determination by the Judge of the existence of
probable cause means that he·(a) shall personally evaluate the
report and the supporting documents submitted by the fiscal
regarding the existence of probable cause and, on the basis thereof,
issue a warrant of arrest; or, (b) if on the basis thereof he finds no
probable cause, may disregard the fiscalÊs report and require the
submission of supporting affidavits of witnesses to aid him in
arriving at a conclusion on the existence of probable cause.
Same; Same; Same; Same; A judge issuing a warrant for the
provisional arrest of an extraditee may rely on the request for
provisional arrest accompanied by facsimile copies of the
outstanding warrant of arrest issued by the requesting government,
a summary of the facts of the case against the extraditee, particulars
of his birth and address, an intention to request his provisional
arrest and the reason therefor.·The Judge cannot, therefore,
merely rely on the certification issued by the prosecutor. He is,
however, not required to personally examine ipso facto the
complainant and his witnesses. He sufficiently complies with the
requirement of personal determination if he reviews the
information and the documents attached thereto, and on the basis
thereof forms a belief that the accused is probably guilty of the
crime with which he is being charged. The Judge deter-

547

VOL. 348, DECEMBER 18, 2000 547

Cuevas vs. Muñoz

mines the existence of probable cause to pass upon whether a

warrant of arrest should be issued against the accused, that is,
whether there is a necessity for placing him under immediate
custody in order not to frustrate the ends of justice. The request for
the respondentÊs provisional arrest was accompanied by facsimile
copies of the outstanding warrant of arrest issued by the Hong
Kong government, a summary of the facts of the case against
respondent, particulars of his birth and address, an intention to
request his provisional arrest and the reason therefor. The said
documents were appended to the application for respondentÊs
provisional arrest filed in the RTC, and formed the basis of the
judgeÊs finding of probable cause for the issuance of the warrant of
arrest against respondent.

PETITION for review on certiorari of a decision of the

Court of Appeals.

The facts are stated in the opinion of the Court.

Assistant Chief State Counsel for petitioner.
Cesar G. David for J.A. Muñoz.

DE LEON, JR., J.,:

Before us
1
is a petition for review on certiorari of the
Decision of the Court of Appeals, dated November 9, 1999,
directing the immediate release of respondent Juan
Antonio
2
Muñoz from the custody of law upon finding the
Order of provisional arrest dated September 20, 1999
issued by Branch 19 of the Regional Trial Court of Manila
to be null and void.
The antecedent facts:
On August 23, 1997, the Hong Kong MagistrateÊs Court
at Eastern Magistracy issued a warrant for the arrest of
respondent for seven (7) counts of accepting an advantage
as an agent contrary to Section 9(l)(a) of the Prevention of
Bribery Ordinance, Cap. 201 of

_______________

1 Penned by Associate Justice Bernardo LI. Salas and concurred in by

Associate Justices Cancio C. Garcia and Candido V. Rivera, Third
Division, in CA-G.R. SP No. 55343, Rollo, pp. 32-51.
2 Penned by Judge Zenaida R. Daguna in Case No. 99-176691, Id., pp.
80-81.

548

548 SUPREME COURT REPORTS ANNOTATED

Cuevas vs. Muñoz

Hong Kong, and seven (7) counts of conspiracy 3

to defraud,
contrary to the common law of Hong Kong. Said warrant 4
remains in full force and effect up to the present time.
On September 13, 1999, the Philippine Department of
Justice (hereafter, „Philippine DOJ‰) received a request for
the provisional arrest of the respondent from the Mutual
Legal Assistance Unit, International Law Division of the
Hong 5Kong Department of Justice (hereafter, „Hong Kong
DOJ‰) pursuant to Article 11(1) of the „Agreement
Between The Government Of The Republic Of The
Philippines And The Government Of Hong Kong For The
Surrender Of Accused And Convicted Persons‰ 6
(hereafter,
„RP-Hong Kong Extradition Agreement‰). The Philippine
DOJ forwarded the request for provisional arrest to the
Anti-Graft Division of the National Bureau of Investigation
(NBI).
On September 17, 1999, for and in behalf of the
government of Hong Kong, the NBI filed an application for
the provisional arrest of respondent with the Regional Trial
Court (RTC) of Manila.
On September 20, 1999, Branch 19 of the RTC of Manila
issued an Order granting the application for provisional7
arrest and issuing the corresponding Order of Arrest.
 On September 23, 1999, respondent was arrested
pursuant to the said8
order, and is currently detained at the
NBI detention cell.
On October 14, 1999, respondent filed with the Court of
Appeals, a petition for certiorari, prohibition and
mandamus with application for preliminary mandatory
injunction and/or writ of habeas corpus assailing the
validity of the Order of Arrest. The Court of Appeals
rendered a decision declaring the Order of Arrest null and
void on the following grounds:

_______________

3 Rollo, p. 55.
4 Id., p. 54.
5 Id., p. 8.
6 Id., p. 72.
7 See Note 3, supra, at p. 9.
8 Ibid.

549

VOL. 348, DECEMBER 18, 2000 549

Cuevas vs. Muñoz

(1) that there was no urgency to warrant the request

for provisional arrest under Article 911(1) of the RP-
Hong Kong Extradition Agreement;
(2) that the request for provisional arrest and the
accompanying warrant of arrest and summary of
facts were unauthenticated and mere facsimile
copies which are insufficient to10form a basis for the
issuance of the Order of Arrest;
(3) that the twenty (20) day period for provisional
arrest under Section 20(d) of Presidential Decree
No. 1069 otherwise known as the Philippine
Extradition Law, was not amended by Article 11(3)
of the RP-Hong Kong Extradition Agreement which
provides for a 11 forty-five (45) day period for
provisional arrest;
(4) that the Order of Arrest was issued without the
Judge having personally
12
determined the existence
of probable cause; and
(5) that the requirement of dual criminality under
Section 3(a) of P.D. No. 1069 has not been satisfied
as the crimes for which respondent is wanted in
Hong Kong, namely accepting an advantage as an
 agent and conspiracy to commit13
fraud, are not
punishable by Philippine laws.

Thus, petitioner Justice Serafin R. Cuevas, in his capacity

as the Secretary of the Department
14
of Justice, lost no time
in filing the instant petition.
On November 17, 1999, respondent filed an Urgent
Motion For Release Pending Appeal. He primarily
contended that, since Section 20(d) of P.D. No. 1069 sets the
maximum period of provisional arrest at twenty (20) days,
and he has been detained beyond the said period, without
both a request for extradition having been received by the
Philippine DOJ and the corresponding petition for
extradition having been filed15
in the proper RTC, he should
be released from detention.

_______________

9 Rollo, p. 38.
10 Id., p. 42.
11 Id., p. 41.
12 Id., p. 48.
13 Id., p. 49.
14 See Note No. 3, supra at p. 4.
15 RespondentÊs Urgent Motion For Release Pending Appeal, Rollo, p.
94.

550

550 SUPREME COURT REPORTS ANNOTATED

Cuevas vs. Muñoz

On December 16, 1999, petetioner filed a Manifestation

with thisf Court stressing the fact that as early as
November 5, 1999, the Philippine DOJ had already
received from the Hong Kong DOJ, a formal request for the
surrender of respondent. Petitioner also informed this
Court that pursuant to the said request for extradition, the
Philippine DOJ, representing the Government of Hong
Kong, filed on November 22, 1999, a verified petition for
the extra-. dition of respondent docketed as Case No. 99-
95733 and
16
currently pending in Branch 10 of the RTC of
Manila.
Petitioner submits that the Court of Appeals erred in
nullifying the Order of provisional arrest against
respondent.
Petitioner imputes the following errors in the subject
Decision of the Court of Appeals, to wit:
 I

The Court of Appeals gravely erred in holding that:

A. there was no urgency for the provisional arrest of

respondent;
B. the municipal law (P.D. No. 1069) subordinates an
international agreement (RP-Hongkong Agreement);
C. the supporting documents for a request for provisional
arrest have to be authenticated;
D. there was lack of factual and legal bases in the
determination of probable cause; and
E. the offense of accepting an advantage as an agent is not an
offense under the Anti-Graft and Corrupt Practices Act, as
amended.

II

The Court of Appeals seriously erred in declaring as null and

void the trial courtÊs Order of Arrest dated September 20, 1999
despite that (sic) respondent waived the right to assail the order of
arrest by filing in the trial court a motion for release on
recognizance, that (sic) the issue of legality of the order of arrest
was being determined by the trial court, and

_______________

16 PetitionerÊs Manifestation dated December 15, 1999, Rollo, p. 110.

551

VOL. 348, DECEMBER 18, 2000 551

Cuevas vs. Muñoz

respondent mocked the established rules of procedure intended for

17
an orderly administration of justice.

Petitioner takes exception to the finding of the Court of

Appeals that the offense of accepting an advantage as an
agent is not punishable under Republic Act (R.A.) No. 3019
otherwise known as the Anti-Graft and Corrupt Practices 18
Act, thus, obviating the application of P.D. No. 1069 that
requires the offense to be punishable under the laws both
of the requesting19
state or government and the Republic of
the Philippines.
However, the issue of whether or not the rule of double
criminality applies was not for the Court of Appeals to
decide in the first place. The trial court in which the
petition for extradition is filed is vested with jurisdiction to
determine whether or not the offenses mentioned in the
petition are extraditable based on the application of the
dual criminality rule and other conditions mentioned in the
applicable treaty. In this case, the presiding Judge of
Branch 10 of the RTC of Manila has yet to rule on the
extraditability of the offenses for which the respondent is
wanted in Hong Kong. Therefore, respondent has
prematurely raised this issue before the Court of Appeals
and now, before this Court.
PetitionerÊs other arguments, however, are impressed
with merit.
First. There was urgency for the provisional arrest of the
respondent.
Section 20(a) of P.D. No. 1069 reads as follows:

_______________

17 See Note No. 3, supra at p. 13.

18 See Note No. 3, supra at p. 22.
19 Section 3(a), P.D. No. 1069 provides, viz.:

„A criminal investigation instituted by authorities of the requesting state or

government charging the accused with an offense punishable under the laws
both of the requesting state or government and the Republic of the Philippines
by imprisonment or other form of deprivation of liberty for a period stipulated
in the relevant extradition treaty or convention.‰

552

552 SUPREME COURT REPORTS ANNOTATED

Cuevas vs. Muñoz

Provisional Arrest.·(a) In case of urgency, the requesting state

may, pursuant to the relevant treaty or convention and while the
same remains in force, request for the provisional arrest of the
accused, pending receipt of the request for extradition made in
accordance with Section 4 of this Decree;

and Article 11 of the Extradition Agreement between the

Philippines and Hong Kong provides in part that:

(1) In urgent cases, the person sought may, in accordance with the
law of the requested Party, be provisionally arrested on the
application of the requesting Party, x x x.

Nothing in existing treaties or Philippine legislation

defines the meaning of „urgency‰ as used in the context of a
request for provisional arrest. Using reasonable standards
of interpretation, however, we believe that „urgency‰
connotes such conditions relating to the nature of the
offense charged and the personality of the prospective
extraditee which would make him susceptible to the
inclination to flee or escape from the jurisdiction if he were
to learn about the impending request for his extradition
and/or likely to destroy the evidence pertinent to the said
request or his eventual 20prosecution and without which the
latter could not proceed.
We find that such conditions exist in respondentÊs case.
First. It should be noted that at the time the request for
provisional arrest was made, respondentÊs pending
application for the discharge of a restraint order over
certain assets held in relation to the offenses with which he
is being charged, was set to be heard by the Court of First
Instance of Hong Kong on September 17, 1999. The Hong
Kong DOJ was concerned that the pending request for the
extradition of the respondent would be disclosed to the
latter during the said proceedings, and would motivate
respondent to flee the Philippines
21
before the request for
extradition could be made.
There is also the fact that respondent is charged with
seven (7) counts of accepting an advantage as an agent and
seven (7) counts

_______________

20 Bassiouni, International Extradition United States Law and

Practice, Vol. II, 1987 ed., p. 526.
21 See Note No. 1, supra at p. 52.

553

VOL. 348, DECEMBER 18, 2000 553

Cuevas vs. Muñoz

of conspiracy to defraud, for each count of which, if found

guilty, he may be punished with seven (7) and fourteen (14)
years imprisonment, respectively. Undoubtedly, the gravity
of the imposable penalty upon an accused is a factor to
consider in determining the likelihood that the accused will
abscond if allowed provisional liberty. It is, after all, but
human to fear a lengthy, if not a lifetime, incarceration.
Furthermore, it has also not escaped the attention of this
Court that respondent appears to be affluent and possessed
of sufficient22 resources to facilitate an escape from this
jurisdiction.
The arguments raised by the respondent in support of
his allegation that he is not a flight risk, are, to wit:
 a) He did not flee or hide when the Central Bank and
the NBI investigated the matter alleged in the
request for extradition of the Hongkong
Government during the second half of 1994; he has
since been cleared by the Central Bank;
b) He did not flee or hide when the Hongkong
GovernmentÊs Independent Commission Against
Corruption (ICAC) issued a warrant for his arrest
in August 1997; he has in fact filed a case in
Hongkong against the Hongkong Government for
the release of his frozen assets;
c) He never changed his address nor his identity, and
has sought vindication of his rights before the
courts in Hongkong and in the Philippines;
d) He has never evaded arrest by any lawful authority,
and certainly will never 23 fly away now that his
mother is on her death bed.

do not convince this Court. That respondent did not flee

despite the investigation conducted by the Central Bank
and the NBI way back in 1994, nor when the warrant for
his arrest was issued by the Hong Kong ICAC in August
1997, is not a guarantee that he will not flee now that
proceedings for his extradition are well on the way.
Respondent is about to leave the protective sanctuary of his
mother state to face criminal charges in another
jurisdiction. It cannot be denied that this is sufficient
impetus for him to flee the country as soon as the
opportunity to do so arises.

_______________

22 People v. Berg, 79 Phil. 842 (1947).

23 See Note No. 13, supra at pp. 96-97.

554

554 SUPREME COURT REPORTS ANNOTATED

Cuevas vs. Muñoz

Respondent also avers that his motherÊs impending death

makes it impossible for him to leave the country. However,
by respondentÊs own admission, his mother finally expired
at the Cardinal Santos
24
Hospital in Mandaluyong City last
December 5, 1999.
Second. Twelve (12) days after respondent was
provisionally arrested, the Philippine DOJ received from
the Hong Kong DOJ, a request for the surrender or
extradition of respondent.
On one hand, Section 20(d) of P.D. No. 1069 reads as
follows:

(d) If within a period of twenty (20) days after the provisional arrest
the Secretary of Foreign Affairs has not received the request for
extradition and the documents mentioned in Section 4 of this
Decree, the accused shall be released from custody.

On the other hand, Article 11(3) of the RP-Hong Kong

Extradition Agreement provides that:

(3) The provisional arrest of the person sought shall be terminated

upon the expiration of forty-five days from the date of arrest if the
request for surrender has not been received, unless the requesting
Party can justify continued provisional arrest of the person sought
in which case the period of provisional arrest shall be terminated
upon the expiration of a reasonable time not being more than a
further fifteen days. This provision shall not prevent the re-arrest
or surrender of the person sought if the request for the personÊs
surrender is received subsequently.

Petitioner contends that Article 11(3) of the RP-Hong Kong

Extradition Agreement which allows a period of forty-five
(45) days for provisional arrest absent a formal request for
extradition has amended Section 20(d) of P.D. No. 1069 25
which provides only a twenty (20) day period for the same.
PetitionerÊs argument on this point, however, has been
rendered moot and academic by the fact that as early as
November 5, 1999 or twelve (12) days after respondentÊs
arrest on September 23, 1999, the Philippine DOJ already
received from the Hong Kong

_______________

24 RespondentÊs Urgent Manifestation/Motion dated December 6, 1999,

Rollo, p. 108.
25 See Note No. 3, supra at pp. 16-17.

555

VOL. 348, DECEMBER 18, 2000 555

Cuevas vs. Muñoz

DOJ, a request for the surrender of respondent. The crucial

event, after all, which tolls the provisional detention period
is the transmittal of the request for the extradition or
surrender of the extraditee. Hence, the question as to
whether the period for provisional arrest stands at twenty
(20) days, as provided for in PD. No. 1069, or has been
extended to forty-five (45) days under the Extradition
Agreement between Hong Kong and the Philippines is
rendered irrelevant by the actual request made by the
Hong Kong DOJ for the extradition of respondent twelve
(12) days after the request for the latterÊs provisional
arrest.
Likewise, respondentÊs contention in his motion for
release pending appeal, that his incarceration cannot
continue beyond the twenty (20) day period without a
petition for his extradition having been filed in court, is
simply bereft of merit. It is clear from the above-cited
provisions, that for the provisional arrest of an accused to
continue, the formal request for extradition is not required
to be filed in court. It only need be received by the
requested state within the periods provided for by P.D. No.
1069 and the RP-Hong Kong Extradition Agreement. By no
stretch of imagination may we infer from the required
receipt of the request for extradition and its accompanying
documents, the additional requisite that the same be filed
in the court within the same periods.
Third. The request for provisional arrest of respondent
and its accompanying documents are valid despite lack of
authentication.
Section 20(b) of P.D. No. 1069 reads as follows:

(b) A request for provisional arrest shall be sent to the Director of

the National Bureau of Investigation, Manila, either through the
diplomatic channels or direct by post or telegraph.

and Article 11(1) of the RP-Hong Kong Extradition

Agreement provides in part that:

x x x. The application for provisional arrest shall contain an

indication of intention to request the surrender of the person sought
and the text of a warrant of arrest or a judgment of conviction
against that person, a statement of the penalty for that offense, and
such further information, if any, as would be necessary to justify the
issue of a warrant of arrest had the offense been committed, or the
person convicted, within the jurisdiction of the requested Party.

556

556 SUPREME COURT REPORTS ANNOTATED

Cuevas vs. Muñoz

The language of the abovequoted provisions is clear. There

is no requirement for the authentication of a request for
provisional arrest and its accompanying documents.
We also note that under Section 20(d) of P.D. No. 1069,
viz.:

(d) If within a period of 20 days after the request for provisional

arrest the Secretary of Foreign Affairs has not received the request
for extradition and the documents mentioned in Section 4 of this
26 27
Decree, the accused shall be released from custody.

_______________

26 SEC. 4. Request: By Whom Made: Requirements.·

(1) Any foreign state or government with which the Republic of the
Philippines has entered into extradition treaty or convention, and
only when the relevant treaty or convention, remains in force,
may request for the extradition of any accused who is or
suspected of being in the territorial jurisdiction of the
Philippines.
(2) The request shall be made by the Foreign Diplomat of the
requesting state or government, addressed to the Secretary of
Foreign Affairs, and shall be accompanied by:

(a) The original or authentic copy of either·

(1) the decision or sentence imposed upon the accused by the court of
the requesting state or government: or
(2) the criminal charge and the warrant of arrest issued by the
authority of the requesting state or government or having
jurisdiction of the matter or some other instruments having the
equivalent legal force.

(b) A recital of the acts for which extradition is requested, with the
fullest particulars as to the name and identity of the accused, his
whereabouts in the Philippines, if known, the acts or omissions
complained of, and the time and place of the commission of these
acts;
(c) The text of the applicable law or a statement of the contents of
said law, and the designation or description of the offense by the
law, sufficient for evaluation of the request; and
(d) Such other documents or information in support of the request.
(Underscoring supplied.)

27 Underscoring supplied.

557

VOL. 348, DECEMBER 18, 2000 557

 Cuevas vs. Muñoz

The original or authenticated copies of the decision or

sentence imposed upon the accused by the requesting state
or the criminal charge and the warrant of arrest issued by
the authority of the requesting state, need not accompany
the request for provisional arrest and may, in fact, be
transmitted after the said request has already been
received by the requested state.
Furthermore, the pertinent provision of the RP-Hong
Kong Extradition Agreement enumerates the documents
that must accompany the request, as follows: (1) an
indication of the intention to request the surrender of the
person sought; (2) the text of a warrant of arrest or
judgment of conviction against that person; (3) a statement
of penalty for that offense; and (4) such further information
as would justify the issue of a warrant of arrest had the
offense been committed, or the person28
convicted, within the
jurisdiction of the requested party. That the enumeration
does hot specify that these documents must be
authenticated copies, is not a mere omission of law. This
may be gleaned from the fact that while Article 11(1) does
not require the accompanying documents of a request for
provisional arrest to be authenticated, Article 9 of the same
Extradition Agreement makes authentication a requisite
for admission in evidence of any document 29
accompanying a
request for surrender or extradition. In other words,
authentication is required for the request for surrender or
extradition but not for the request for provisional arrest.
We must also state that the above mentioned provisions
of P.D. No. 1069 and the RP-Hong Kong Extradition
Agreement, as they are worded, serve the purpose sought
to be achieved by treaty stipulations for provisional arrest.
The process of preparing a formal request for extradition
and its accompanying documents, and transmitting them
through diplo-

_______________

28 Article 11(1) of the RP-Hong Kong Extradition Agreement.

29 Article 9(1) of the RP-Hong Kong Extradition Agreement provides,
viz.:

„Any document that, in accordance with Article 8 of this Agreement,

accompanies a request for surrender shall be admitted in evidence, if
authenticated, in any proceedings in the jurisdiction of the requested party.‰

558
558 SUPREME COURT REPORTS ANNOTATED
Cuevas vs. Muñoz

matic channels, is not only time-consuming but also

leakage-prone. There is naturally a great likelihood of
flight by criminals who get an intimation of the pending
request for their extradition. To solve this problem,
speedier initial steps in the form of treaty
30
stipulations for
provisional arrest were formulated. Thus, it is an
accepted practice for the requesting state to rush its
request in the form of a telex or diplomatic 31
cable, the
practicality of the use of which is conceded. Even our own
Extradition Law (P.D. No. 1069) allows the transmission
32
of
a request for provisional arrest via telegraph. In the
advent of modern technology, the telegraph or cable have
been conveniently replaced by the facsimile machine.
Therefore, the transmission by the Hong Kong DOJ of the
request for respondentÊs provisional arrest and the
accompanying documents, namely, a copy of the warrant of
arrest against respondent, a summary of the facts of the
case against him, particulars of his birth and address, a
statement of the intention to request his provisional arrest
and the reason therefor, by fax machine, more than serves
this purpose of expediency. 33
RespondentÊs reliance on Garvida v. Sales, Jr. is
misplaced. The proscription against the admission of a
pleading that has been transmitted by facsimile machine
has no application in the case at bar for obvious reasons.
First, the instant case does not involve a pleading; and
second, unlike the COMELEC Rules of Procedure which do
not sanction the filing of a pleading by means of a facsimile
machine, P.D. No. 1069 and the RP-Hong Kong Extradition
Agreement do not prohibit the transmission of a request for
provisional arrest by means of a fax machine.
In a futile attempt to convince this Court, respondent
cites our ruling in the recent case of Secretary of Justice v.
Hon. Lantion, et

_______________

30 Shearer, Extradition in International Law, 1971 Ed., p. 200.

31 See Note 19, supra at p. 526.
32 Section 20(b) of P.D. No. 1069 provides, viz.:

„A request for provisional arrest shall be sent to the Director of the National
Bureau of Investigation, Manila, either through the diplomatic channels or
direct by post or telegraph.‰

33 271 SCRA 767 (1997).

 559

VOL. 348, DECEMBER 18, 2000 559

Cuevas vs. Muñoz
34
al., where we held that the right of an extraditee to due
process necessarily includes the right to be furnished with
copies of the extradition request and supporting papers,
and to file a comment thereto during the evaluation stage
of the extradition proceedings.
Respondent posits that, in the same vein, the admission
by the RTC of the request for provisional arrest and its
supporting documents despite lack of authentication is a
violation of the respondentÊs right to due process. This
contention fails to impress us.
RespondentÊs contention is now a non-issue, in view of
our Resolution dated October 17, 2000 in the said case of
Secretary of Justice v. Hon. Lantion, et al. reconsidering
and reversing our earlier decision therein. Acting on
therein petitionerÊs Motion for Reconsideration, we held
that therein respondent is bereft of the right to notice and
hearing 35during the evaluation stage of the extradition
process. Worthy to reiterate is the following 36
concluding
pronouncement of this Court in the said case:

In tilting the balance in favor of the interests of the State, the Court
stresses that it is not ruling that the private respondent has no right
to due process at all throughout the length and breath of the
extrajudicial proceedings. Procedural due process requires a
determination of what process is due, when it is due and the degree
of what is due. Stated otherwise, a prior determination should be
made as to whether procedural protections are at all due and when
they are due, which in turn depends on the extent to which an
37
individual will be Âcondemned to suffer grievous loss.Ê We have
explained why an extraditee has no right to notice and hearing
during the evaluation stage of the extradition process. As aforesaid,
P.D. 1069 x x x affords an extraditee sufficient opportunity to meet
the evidence against him once the petition is filed in court. The time
for the extraditee to know the basis of the request for his
extradition is merely moved to the filing in court of the formal
petition for extradition. The extraditeeÊs right to know is
momentarily withheld during the evaluation stage of the extra-

_______________

34 Decision, G.R. No. 139465, January 18, 2000, 322 SCRA 160.
35 Resolution, G R. No. 139465, October 17, 2000, 343 SCRA 377.
36 Id., at pp. 14-15.
 37 Morrisey v. Brewer, 408 U.S. 471, 481 (1972), citing Joint AntiFascist
Refugee Committee v. McGrath, 341 U.S. 123, 168, 95 L. Ed. 817, 852, 71 S. Ct.
624 (1951) (Frankfurter, J., Concurring) quoted in (Goldberg v. Kelly, 397 U.S.
254, 263, 25 L. Ed. 287, 296, 90 S. Ct. 1011 (1970).

560

560 SUPREME COURT REPORTS ANNOTATED

Cuevas vs. Muñoz

dition process to accommodate the more compelling interest of the

State to prevent escape of potential extraditees which can be
precipitated by premature information of the basis of the request
for his extradition. No less compelling at that stage of the
extradition proceedings is the need to be more deferential to the
judgment of a co-equal branch of the government, the Executive,
which has been endowed by our Constitution with greater power
over matters involving our foreign relations. Needless to state, this
balance of interests is not a static but a moving balance which can
be adjusted as the extradition process moves from the
administrative stage to the judicial stage and to the execution stage
depending on factors that will come into play. In sum, we rule that
the temporary hold on private respondentÊs privilege of notice and
hearing is a soft restraint on his right to due process which will not
deprive him of fundamental fairness should he decide to resist the
request for his extradition to the United States. There is no denial
of due process as long as fundamental fairness is assured a party.

Respondent also contends that the request for his

provisional arrest was rendered defective by the fact that
the person who made the request was not a foreign
diplomat as provided for in Section 4 (2) of P.D. No. 1069, to
wit:

SEC. 4. Request; By Whom Made; Requirements.·

(1) Any foreign state or government with which the Republic of

the Philippines has entered into extradition treaty or
convention, and only when the relevant treaty or
convention, remains in force, may request for the extradition
of any accused who is suspected of being in the territorial
jurisdiction of the Philippines.
(2) The request shall be made by the Foreign Diplomat of the
requesting state or government, addressed to the Secretary
of Foreign Affairs, x x x.

This contention deserves scant consideration. The foregoing

refers to the requirements for a request for extradition and
not for a request for provisional arrest. The pertinent
provisions are Article 11(2) which states:

561

VOL. 348, DECEMBER 18, 2000 561

Cuevas vs. Muñoz

An application for provisional arrest may be forwarded through the

same channels as a request for surrender or through the
38
International Criminal Police Organization (INTERPOL);

and Article 8(1) which provides:

Requests for surrender and related documents shall be conveyed

through the appropriate authority as may be notified from time to
39
time by one party to another.

Hence, there is sufficient compliance with the foregoing if

the request for provisional arrest is made by an official who
is authorized by the government of the requesting state to
make such a request and the authorization is
communicated to the requested state.
The request for provisional arrest of respondent was
signed by Wayne Walsh, Senior Government Counsel of the
Mutual Legal Assistance Unit, International Law Division
of the Hong Kong DO J who stated in categorical terms
that:

The Department of Justice (Mutual Legal Assistance Unit) of the

HKSAR is the appropriate authority under the Agreement to make
requests for provisional arrest and surrender. I confirm that as a
member of the Mutual Legal Assistance Unit, I am authorized (sic)
40
to make this request for provisional arrest.

Last. There was sufficient factual and legal basis for the
determination of probable cause 41
as a requisite for the
issuance of the Order of Arrest.
We have defined probable cause for the issuance of a
warrant of arrest as „the existence of such facts and
circumstances that would lead a reasonably discreet and
prudent person to believe that an offense42 has been
committed by the person sought to be arrested.‰

_______________

38 Underscoring supplied.
39 Underscoring supplied.
40 See Note No. 4, supra at p. 73.
41 See Note No. 3, supra at p. 21.
 42 Allado v. Diokno, 232 SCRA 191, 199-200 (1994); Ho v. People, 280
SCRA 365, 377 (1997).

562

562 SUPREME COURT REPORTS ANNOTATED

Cuevas vs. Muñoz

The determination of probable cause is a function of the

Judge. Such is the mandate of our Constitution which
provides that a warrant of arrest shall issue only upon
probable cause to be determined personally by the judge
after examination under oath or affirmation43 of the
complainant and the witnesses
44
he may produce. In the
case of Allado v. Diokno, we stated that personal
determination by the Judge of the existence of probable
cause means that he·

(a) shall personally evaluate the report and the supporting

documents submitted by the fiscal regarding the existence of
probable cause and, on the basis thereof, issue a warrant of arrest;
or, (b) if on the basis thereof he finds no probable cause, may
disregard the fiscalÊs report and require the submission of
supporting affidavits of witnesses to aid him in arriving at a
45
conclusion on the existence of probable cause.

The Judge cannot, therefore, merely rely on the

certification issued by the prosecutor. He is, however, not
required to personally examine ipso facto the complainant
and his witnesses. He sufficiently complies with the
requirement of personal determination if he reviews the
information and the documents attached thereto, and on
the basis thereof forms a belief that the accused is probably
46
guilty of the crime with which he is being charged. The
Judge determines the existence of probable cause to pass
upon whether a warrant of arrest should be issued against
the accused, that is, whether there is a necessity for placing
him under immediate
47
custody in order not to frustrate the
ends of justice.
The request for the respondentÊs provisional arrest was
accompanied by facsimile copies of the outstanding warrant
of arrest issued by the Hong Kong government, a summary
of the facts of the case against respondent, particulars of
his birth and address, an intention to request his
provisional arrest and the reason therefor. The said
documents were appended to the application for re-

_______________
 43 Section 2, Article III of the 1987 Philippine Constitution.
44 Supra.
45 Id., p. 205.
46 Ho v. People, supra at p. 381.
47 Id., p. 380.

563

VOL. 348, DECEMBER 18, 2000 563

Cuevas vs. Muñoz

48
spondents provisional arrest filed in the RTC, and formed
the basis of the judgeÊs finding of probable cause for the
issuance of the warrant of arrest against respondent.
Respondent alleges the contrary and surmises that all
that the trial judge did was to interview NBI agent Saunar
who filed the application for the issuance of the warrant of
provisional arrest, and that „her honor did not probably
even notice that 49
the supporting documents were not
authenticated.‰ The allegation, baseless and purely
speculative, is one which we cannot countenance in view of
the legal presumption
50
that official duty has been regularly
performed.
That the Presiding Judge of RTC Manila, Branch 19,
made a personal determination of the existence of probable
cause on the basis of the documents forwarded by the Hong
Kong DOJ is further supported by the Order of Arrest
against respondent which states:

ORDER

This treats of the Application For Provisional Arrest of Juan

Antonio Muñoz, for the purpose of extradition from the Republic of
the Philippines.
This application was filed in behalf of the Government of Hong
Kong Special Administrative Region for the provisional arrest of
Juan Antonio Munoz, pursuant to Section 20 of Presidential Decree
No. 1069, in relation to paragraph 1, Article 11 of the Agreement for
the Surrender of Accused and Convicted Persons between the
Republic of the Philippines and Hong Kong on provisional arrest.
The application alleged that Juan Antonio Munoz is wanted in
Hong Kong for seven (7) counts of the offense of „accepting an
advantage as an agent,‰ contrary to Section 9(1) (9) of the Prevention
of Bribery Ordinance Cap. 201 of Hong Kong and seven (7) counts of
the offense of „conspiracy to defraud,‰ contrary to the Common Law
of Hong Kong.
That a warrant of arrest was issued by the MagistrateÊs Court at
Eastern Magistracy, Hong Kong on August 23, 1997, pursuant to
the 14 charges filed against him before the issuing Court, Juan
Antonio Muñoz is

_______________

48 See Note No. 3, supra at p. 21.

49 RespondentÊs Comment, p. 23.
50 Factoran v. Court of Appeals, G.R. No. 93540, December 13, 1999, p. 12,
320 SCRA 530, citing Beautifont, Inc. v. Court of Appeals, et al., 157 SCRA 481,
493 (1988).

564

564 SUPREME COURT REPORTS ANNOTATED

Cuevas vs. Muñoz

now alleged to be in the Philippines. He was born on June 24, 1941,

a holder of Philippines Passport No. 2K 934808, formerly an
employee of the Central Bank of the Philippines and with address
at Phase 3, BF Homes, No. 26 D C Chuan Street, Metro Manila.

That there is an urgency in the issuance of the provisional arrest warrant

for the reason that the application to discharge the restraint over the
funds, subject of the offenses, in his Citibank Account in Hong Kong was
set for hearing on September 17, 1999 and that his lawyer in Hong Kong
will be notified of the request of the Hong Kong Government for his
provisional arrest (sic) and Juan Antonio E. Muñoz upon knowledge of
the request.

Considering that the Extradition treaty referred to is part of our

systems of laws and recognized by Presidential Decree No. 1069 and
the Constitution itself by the adoption of international laws,
treaties and conventions as parts (sic) of the law of the land, the
application for provisional arrest of Juan Antonio Munoz is hereby
GRANTED. Let a warrant for his provisional arrest therefore issue.
51
SO ORDERED. (Underscoring supplied.)

Finally, petitioner also avers that the respondent has

waived his right to assail the validity of his provisional
arrest when he filed a motion for release on recognizance.
Considering that we find petitionerÊs other contentions to
be impressed with merit, there is no need to delve further
into this particular issue.
WHEREFORE, the petition is GRANTED, and the
assailed Decision of the Court of Appeals, dated November
9, 1999, in CA-G.R. SP No. 55343 is hereby REVERSED
and SET ASIDE. RespondentÊs „Urgent Motion For Release
Pending Appeal‰ is hereby DENIED.
SO ORDERED.
 Bellosillo (Chairman), Mendoza, Quisumbing and
Buena, JJ., concur.

Petition granted, judgment reversed and set aside.

Urgent Motion for Release Pending Appeal denied.

_______________

51 Rollo, pp. 80-81.

565

VOL. 348, DECEMBER 18, 2000 565

Telefunken Semiconductors Employees Union-FFW vs.
Court of Appeals

Notes.·Constitutional rights that are only relevant to

determine the guilt or innocence of an accused cannot be
invoked by an extraditee. (Secretary of Justice vs. Lantion,
322 SCRA 160 [2000])
The Supreme Court now holds that an extraditee is
bereft of the right to notice and hearing during the
evaluation stage of the extradition process. (Secretary of
Justice vs. Lantion, Ibid.)

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