G.R. No. 224945, October 11, 2022,

♦ Decision,

Leonen, [J]

♦ Separate Opinion,

Lazaro-Javier, [J]

♦ Separate Opinion,

Zalameda, [J]

EN BANC

[ G.R. No. 224945. October 11, 2022 ]

GIRLIE J. LINGAD, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

SEPARATE OPINION

LAZARO-JAVIER,

J.:

I concur in the conclusion of the esteemed Senior Associate Justice Marvic Mario Victor F. Leonen that petitioner is guilty beyond reasonable doubt of Money Laundering as defined in the

original

version of Section 4 of Republic Act (RA) No. 9160, the

Anti-Money Laundering Act of 2001.

This law was enacted in 2001 and was the law in force at the time the Information was filed in

2002.

RA 9160 was substantially amended several times by these statutes:

RA 11521

entitled "An Act Further Strengthening The Anti-Money Laundering Law, Amending For The Purpose Republic Act No. 9160, Otherwise Known As The 'Anti-Money Laundering Act Of 2001,'" As Amended (approved January 29, 2021);

RA 10927

entitled "An Act Designating Casinos As Covered Persons Under Republic Act No. 9160, Otherwise Known As The "Anti-Money Laundering Act Of 2001," As Amended (approved July 14, 2017);

RA 10365

RA 10167

entitled "An Act To Further Strengthen The Anti-Money Laundering Law, Amending For The Purpose Sections 10 And 11 Of Republic Act No. 9160, Otherwise Known As The 'Anti-Money Laundering Act Of 2001,'" As Amended, And For Other Purposes (approved June 18, 2012); and

RA 9194

entitled "An Act Amending Republic Act No. 9160, Otherwise Known As The 'Anti-Money Laundering Act Of 2001'" (approved March 7, 2003).

Among these subsequent amendatory laws, however, only RA 9194 and RA 10365 amended Section 4 of RA 9160.

As originally enacted, Section 4 of RA 9160 read:

SECTION 4. Money Laundering Offense. Money Laundering Offense. — Money laundering is a crime whereby the proceeds of an unlawful activity are transacted, thereby making them appear to have originated from legitimate sources. It is committed by the following:

(a) Any person knowing that any monetary instrument or property represents, involves, or relates to, the proceeds of any unlawful activity, transacts or attempts to transact said monetary instrument or property.

(b) Any person knowing that any monetary instrument or property involves the proceeds of any unlawful activity, performs or fails to perform any act as a result of which he facilitates the offense of money laundering referred to in paragraph (a) above.

(c) Any person knowing that any monetary instrument or property is required under this Act to be disclosed and filed with the Anti-Money Laundering Council (AMLC), fails to do so.

This was the definition of money laundering until 2003 when RA 9194 was enacted amending Section 4 of RA 9160, in this wise:

"SEC. 4. Money Laundering Offense. — Money laundering is a crime whereby the proceeds of an unlawful activity

as herein defined

are transacted, thereby making them appear to have originated from legitimate sources. It is committed by the following:

"(a) Any person knowing that any monetary instrument or property represents, involves, or relates to, the proceeds of any unlawful activity, transacts or attempts to transact said monetary instrument or property.

"(b) Any person knowing that any monetary instrument or property involves the proceeds of any unlawful activity, performs or fails to perform any act as a result of which he facilitates the offense of money laundering referred to in paragraph (a) above.

"(c) Any person knowing that any monetary instrument or property is required under this Act to be disclosed and filed with the Anti-Money Laundering Council (AMLC), fails to do so."

In 2013, Section 4 was again amended by RA 10365 to read, as follows:

"SEC. 4. Money Laundering Offense. — Money laundering is committed by any person who,

knowing that any monetary instrument or property represents, involves, or relates to the

proceeds of

any unlawful activity:

"(a) transacts said monetary instrument or property;

"(b) converts, transfers, disposes of, moves, acquires, possesses or uses said monetary instrument or property;

"(c) conceals or disguises the true nature, source, location, disposition, movement or ownership of or rights with respect to said monetary instrument or property;

"(d) attempts or conspires to commit money laundering offenses referred to in paragraphs (a), (b) or (c);

"(e) aids, abets, assists in or counsels the commission of the money laundering offenses referred to in paragraphs (a), (b) or (c) above; and

"(f) performs or fails to perform any act as a result of which he facilitates the offense of money laundering referred to in paragraphs (a), (b) or (c) above.

"Money laundering is also committed by any covered person who, knowing that a covered or suspicious transaction is required under this Act to be reported to the Anti-Money Laundering Council (AMLC), fails to do so."

The definition in the amended Section 4 of RA 10365 is the prevailing definition of Money Laundering to date.

Note the permutations of the definition of money laundering in Section 4:

RA 9160

RA 9194

RA 10365

proceeds of an unlawful activity are transacted

proceeds of an unlawful activity

as herein defined

are transacted

any monetary instrument or property represents, involves, or relates

to the proceeds of

any

unlawful activity

"(a) transacts said monetary instrument or property;

"(b) converts, transfers, disposes of, moves, acquires, possesses or uses said monetary instrument or property;

"(c) conceals or disguises the true nature, source, location, disposition, movement or ownership of or rights with respect to said monetary instrument or property;

The

Implementing Rules and Regulations

of RA 9160 and its amendments also went through several revisions – 2018, 2016, 2012, 2003.

The 2018 and 2016 versions of the

Implementing Rules and Regulations

are identical in their provisions on the

Prosecution of Money Laundering Cases:

SECTION 4. Prosecution of Money Laundering Cases. —

4.1. Independent Proceedings.

The prosecutions of ML and the associated unlawful activity shall proceed independently. Any person may be charged with and convicted of both ML and the associated unlawful activity.

4.2. Separate and Distinct Elements.

The elements of ML are separate and distinct from the elements of the associated unlawful activity. The elements of the unlawful activity, including the identity of the perpetrators and the details of the commission of the unlawful activity, need not be established by proof beyond reasonable doubt in the case for ML.

4.3. Knowledge.

he element of knowledge may be established by direct or circumstantial evidence. The deliberate non-performance of the preventive measures under the AMLA, this IRR, AMLC issuances, and SA's guidelines by a covered person's responsible directors, officers and employees shall be considered in determining knowledge of the commission of ML offenses.

(emphasis supplied)

The 2012 version of the

Implementing Rules and Regulations

on the foregoing provisions was slightly different in form from the 2016 and 2018 versions, but the substance of the provisions is the same:

RULE 6

Prosecution of Money Laundering

RULE 6.a. Prosecution of Money Laundering. —

(1) Any person may be charged with and convicted of both the offense of money laundering and the unlawful activity as defined under Section 3.i of the AMLA, as amended.

(2) Any proceeding relating to the unlawful activity shall be given precedence over the prosecution of any offense or violation under the AMLA, as amended, without prejudice to the

ex-parte

application by the AMLC with the Court of Appeals for a freeze order with respect to the monetary instrument or property involved therein and resort to other remedies provided under the AMLA, as amended, the Rules of Court and other pertinent laws and rules.

. . . .

RULE 6.d. Trial for the money laundering offense shall proceed in accordance with the Code of Criminal Procedure or the Rules of Procedure of the Sandiganbayan, as the case may be.

RULE 6.e. Knowledge of the offender that any monetary instrument or property represents, involves, or relates to the proceeds of an unlawful activity or that any monetary instrument or property is required under the AMLA, as amended, to be disclosed and filed with the AMLC, may be established by direct evidence or inferred from the attendant circumstances.

RULE 6.f. All the elements of every money laundering offense under Section 4 of the AMLA, as amended, must be proved by evidence beyond reasonable doubt, including the element of knowledge that the monetary instrument or property represents, involves or relates to the proceeds of any unlawful activity.

RULE 6.g. No element of the unlawful activity, however, including the identity of the perpetrators and the details of the actual commission of the unlawful activity need be established by proof beyond reasonable doubt. The elements of the offense of money laundering are separate and distinct from the elements of the felony or offense constituting the unlawful activity.

(emphasis supplied)

The

Implementing Rules and Regulations

was revised twice in 2003 but both 2003 versions contained identical provisions as those above:

RULE 6

Prosecution of Money Laundering

RULE 6.1. Prosecution of Money Laundering. —

RULE 6.1.a. Any person may be charged with and convicted of both the offense of money laundering and the unlawful activity as defined under Rule 3(i) of the AMLA.

. . . .

RULE 6.3. After due notice and hearing in the preliminary investigation proceedings before the Department of Justice, or the Ombudsman, as the case may be, and the latter should find probable cause of a money laundering offense, it shall file the necessary information before the Regional Trial Courts or the Sandiganbayan.

RULE 6.4. Trial for the money laundering offense shall proceed in accordance with the Code of Criminal Procedure or the Rules of Procedure of the Sandiganbayan, as the case may be.

RULE 6.5. Knowledge of the offender that any monetary instrument or property represents, involves, or relates to the proceeds of an unlawful activity or that any monetary instrument or property is required under the AMLA to be disclosed and filed with the AMLC, may be established by direct evidence or inferred from the attendant circumstances.

RULE 6.6. All the elements of every money laundering offense under Section 4 of the AMLA must be proved by evidence beyond reasonable doubt, including the element of knowledge that the monetary instrument or property represents, involves or relates to the proceeds of any unlawful activity.

RULE 6.7. No element of the unlawful activity, however, including the identity of the perpetrators and the details of the actual commission of the unlawful activity need be established by proof beyond reasonable doubt. The elements of the offense of money laundering are separate and distinct from the elements of the felony or offense constituting the unlawful activity.

(emphasis supplied)

The 2002

Implementing Rules and Regulations

conceived the template that was carried over through to the latest version of these regulations:

RULE 6

Prosecution of Money Laundering

RULE 6.1. Prosecution of Money Laundering. —

RULE 6.1.a. Any person may be charged with and convicted of both the offense of money laundering and the unlawful activity as defined under Rule 3(i) of the AMLA.

RULE 6.1.b. Any proceeding relating to the unlawful activity shall be given precedence over the prosecution of any offense or violation under the AMLA without prejudice to the issuance by the AMLC of a freeze order with respect to the deposit, investment or similar account involved therein and resort to other remedies provided under the AMLA.

. . . .

RULE 6.4. Trial for the money laundering offense shall proceed in accordance with the Code of Criminal Procedure or the Rules of Procedure of the Sandiganbayan, as the case may be.

Given the above-noted

permutations in the definition

of Section 4 of RA 9160 and the

identical guidelines

in the

Implementing Rules and Regulations

of RA 9160 on the prosecution of money laundering,

I most respectfully disagree

with the

ponencia

some

of the elements of money laundering that it has identified:

1. There is an unlawful activity – any act or omission, or a series or combination of acts or omissions, involving or directly related to offenses enumerated under Section 3 of the law;

2. The proceeds of the unlawful activity are transacted by the accused;

3. The accused knows that the proceeds involve or relate to the unlawful activity; and

4. The proceeds are made to appear to have originated from legitimate sources.

Actus reus

The

actus reus

or criminal act of money laundering requires an unlawful activity that must

ultimately

be one of the crimes identified in Section 3(i) of RA 9160, whether of the original or amended versions. To be criminal, the act must refer to the

proceeds

any

unlawful activity. By proceeds, this would mean the

amount derived

realized from any

of the unlawful activities mentioned in Section 3(i).

Obviously, the

proceeds

are not invisible. The

proceeds

must have physical representations whether electronically or digitally or as physical objects. The law refers to the physical representations as either

monetary instrument or property.

The monetary instrument of property is not just any monetary instrument or property – it must

represent, involve,

relate

to,

the proceeds

of any unlawful activity.

Lastly, there must have been a

transaction

or an

attempt to transact.

This act must pertain to the

monetary instrument

property

that represents, involves, or relates to the proceeds of any unlawful activity. A

transaction

pertaining to the monetary instrument or property would be any act

establishing any right or obligation

giving rise to any contractual or legal relationship

between the parties thereto, in relation to or involving or representing the monetary instrument or property. A

transaction

also includes

any movement of funds

(

i.e.,

not any funds

but

funds

that are the

monetary instrument

property

that represents, involves, or relates to the proceeds of any unlawful activity) by any means with a covered institution.

I respectfully emphasize the use of the articles

and

any

in referring to the unlawful activity. It is

not

the

unlawful activity

, but

unlawful activity or

any

unlawful activity. This is

important

because the

use of these articles in the law itself

in defining money laundering will identify the essential allegations in the

Information

for money laundering

and

the elements that the prosecution will have to prove beyond reasonable doubt.

In this regard, it is

enough

that the prosecution alleges in the

Information

that the accused transacted or attempted to transact monetary instrument or property that represents, involves, or relates to the proceeds of

any of the unlawful activities

mentioned in Section 3(i),

without necessarily mentioning what this particular unlawful activity is.

Of course, there is the prosecutorial discretion to identify the

specific unlawful activity

, with specific reference to the name of the crime as referenced in Section 3(i), but this allegation and proof are

not necessary

to obtain a conviction for money laundering. This is

because

all the prosecution has to prove beyond reasonable doubt as the

actus reus

is that the accused

transacted

with the

monetary instrument

property

that

represents, involves,

relate to

the proceeds of an unlawful activity that falls under any of the named crimes in Section 3(i).

Whatever

crime may be

ultimately

proven is

superfluous

so long as it is

an unlawful activity

that by definition falls within Section 3(i).

My understanding of the

actus reus

of money laundering jibes with the text of any of the versions of Section 4. To repeat:

RA 9160

RA 9194

RA 10365

proceeds of an unlawful activity are transacted

proceeds of an unlawful activity

as herein defined

are transacted

any monetary instrument or property represents, involves, or relates to the

proceeds of any unlawful activity

"(a) transacts said monetary instrument or property;

"(b) converts, transfers, disposes of, moves, acquires, possesses or uses said monetary instrument or property;

"(c) conceals or disguises the true nature, source, location, disposition, movement or ownership of or rights with respect to said monetary instrument or property;

My understanding also

jibes perfectly

with the

contemporaneous construction

made by our

financing authorities

and

justice officials

how to prosecute money laundering cases.

To repeat what they said in the

Implementing Rules and Regulations:

No element

the

unlawful activity,

however, including the

identity of the perpetrators and the details of the actual commission of the unlawful activity

need be established by proof beyond reasonable doubt. The elements of the offense of money laundering are separate and distinct from the elements of the felony or offense constituting the unlawful activity. (emphasis and underscoring supplied)

All that the prosecution has to allege and prove is that the monetary instrument or property relates to, involves, or represents the proceeds of an or any unlawful activity, and not the unlawful activity, which means a crime or any of the crimes listed in Section 3(i).

This understanding of the

actus reus

of money laundering, I humbly submit, is consistent with the language of Section 4, the contemporaneous construction given to it by the chief implementors of RA 9160, the avoidance of an acquittal on the basis of a strained and gratuitous burden imposed upon the prosecution, and the avoidance of duplicative and potentially conflicting trials of the same offense when the predicate crime is prosecuted separately and independently from the money laundering case.

It is enough that there is allegation and proof beyond reasonable doubt that the monetary instrument or property in question has a criminal origin which ultimately is linked to or can be characterized by any of the predicate crimes under Section 3(i). Also, to avoid the anomaly of one trial court (i.e., the trial court hearing the money laundering prosecution) from prejudging the guilt or innocence of the accused (whether the same individual as the alleged money launderer or some other person) in the prosecution for the predicate crime, it is enough that the prosecution prove beyond a reasonable doubt, and the trial court in the money laundering case declare, that the monetary instrument or property was derived or realized from an unlawful activity found in Section 3(i).

Thus, there is

no need to establish proof that would obtain conviction

for a

specific

predicate crime. There is also

no need to allege

specific

predicate crime and

be bound

to prove it beyond a reasonable doubt, to the

exclusion of any other unlawful activity

as listed in Section 3(i). It is

enough

that the

unlawfulness

of the source of the proceeds is shown beyond reasonable doubt, that is, the

criminal act

and

criminal mind

involved in an unlawful activity.

Let me respectfully illustrate. Accused A is prosecuted for money laundering of the proceeds of an unlawful activity perpetrated by Accused B. The unlawful activity is

not mentioned

in the

Information,

but since

unlawful activity as defined in Section 3(i)

is alleged in the

Information,

the prosecution can present evidence to prove what this unlawful activity is. The thrust of the prosecution evidence in the money laundering case is

unlawful activity arising from

selling illegal drugs.

Meantime, Accused B is prosecuted for the sale of illegal drugs under Section 5 of RA 9165 as amended. The prosecution for this crime falters. This is because of the requirement that the

statutory witnesses under Section 21 of RA 9165 were not present

to witness the buy-bust operation itself and the photo-taking and inventory of the drugs. Accused B is

acquitted.

In the money laundering case, it is

enough

that the prosecution proves beyond a reasonable doubt that the proceeds were derived or realized from

unlawful activity. Since the selling of drugs is unlawful, the

actus reus

is established, though this predicate crime itself was not proven beyond reasonable doubt to obtain a conviction in the criminal case against Accused B.

The focus therefore is on the

unlawfulness

of the

activity

from which the proceeds were derived or realized.

To respectfully illustrate further - Accused A is charged with money laundering. The proceeds were realized from

unlawful activity involving the

siphoning of money

from the bank's customers. Accused A and Accused B were charged with

qualified theft.

Eventually, the trial court

acquitted

them of

qualified theft

but found them

guilty

estafa

. The trial court in the money laundering prosecution

cannot acquit

them of this crime simply because there is no proof beyond a reasonable doubt of qualified theft. It is enough that Accused A is proven guilty of deriving or realizing proceeds from

an unlawful activity

that is

listed in Section 3(i)

, i.e., fraud. It does not matter that it is qualified theft or

estafa

. What is important is that the proceeds were

from an unlawful activity

that was proven beyond reasonable doubt.

Thus said, my understanding of the

actus reus

of money laundering unfortunately

conflicts

with the

ponencia

’s position that "the

particular

elements of

that unlawful activity

must still be proven beyond a reasonable doubt."

1âшphi1

As I have stressed, what the law requires as money laundering is that there was a transaction involving the

proceeds

an unlawful activity

any unlawful activity

as listed in Section 3(i),

whatever unlawful activity could ultimately be found against the accused.

The prosecution is

not tied

to allege and prove a

particular

unlawful activity,

so as to be burdened to prove the elements of

that

particular unlawful activity.

What the prosecution is duty-bound to allege and prove is an unlawful activity from any of the unlawful activities in Section 3(i), so long as in the end, the prosecution discharges its burden to prove an unlawful activity from the menu of unlawful activities.

The proof also has

nothing to do with proof that must amount to a conviction

had this predicate crime been tried alongside money laundering. It is enough that there is

proof beyond a reasonable doubt

of the

unlawfulness

of the source of the proceeds, that is, the

criminal act

and

criminal mind

involved in an unlawful activity, though for some reason, a judgment of

conviction cannot be obtained

for such unlawful activity.

Mens rea

I also humbly submit that there is only one criminal mental element or mens rea in a money laundering prosecution. This is the

scienter

, or criminal

knowledge

of the

unlawfulness

of the source of the proceeds. This requisite knowledge does not require the accused to have been a participant in an unlawful activity or any of the unlawful activities. The accused does not have to share in or be responsible for the criminal act and mental elements of an unlawful activity. The only knowledge demanded of the prosecution to prove is the accused's

knowledge

that any monetary instrument or property represents, involves, or relates to the proceeds of an

unlawful

activity.

In this regard, there is no need to prove that the

proceeds are made to appear to have originated from legitimate sources.

For this is not even required by any of the versions of Section 4 of RA 9160. So long as the accused

knows

that any monetary instrument or property represents, involves, or relates to the proceeds of an

unlawful

activity, that is

enough.

The

transactions

the accused does involving the monetary instrument or property do

not have to be characterized

as evincing the

specific intent

of the accused to

make

the monetary instrument or property

appear

to be clean. If the accused has engaged in

transactions

as defined by RA 9160, and

intended

to do these acts in the sense of

voluntarily

executing them,

even without the specific intention

to achieve the particular result of making the proceeds look clean, provided the other elements are present, the accused has committed money laundering.

Application to the present case

The

ponencia

correctly affirmed the conviction of petitioner for money laundering. She

derived proceeds

from

an unlawful activity

that under Section 3(i) could either be qualified theft or fraud. The prosecution theorized its case on the basis of qualified theft, a particular criminal activity listed in Section 3(i). That is all right. The choice is part of its prosecutorial discretion. But, as I have explained, this is unnecessary. In any event, it is clear that the proceeds were realized from an unlawful activity. Petitioner

transacted monetary instruments

relating to the proceeds of her unlawful activity. She

knew

of course that the monetary instruments related to the proceeds of her unlawful activity. She was after all the sole perpetrator of her unlawful activity.

transacting

the monetary instruments, did she

specifically intend

to clean the proceeds? Or was she transacting to elude detection until such time that she was able to put the proceeds under her control, regardless of whether the proceeds would appear clean or remain obviously dirty? Was she sophisticated enough to harbor the

specific intention

of making the proceeds come out clean? What motivation did she have to make the proceeds appear clean when she was ready to fly to the United States?

None of these concerns, however, should matter. Whether she

specifically intended

to make the proceeds appear to be clean is

irrelevant.

It is

not an element

of money laundering.

To conclude, the prosecution need not be required to prove to a moral certainty the

particular

elements of that

unlawful activity.

As I have stressed, the proof is to the

unlawfulness

of the origin of the proceeds, and therefore,

any unlawful activity

under Section 3(i) will do, no specific reference to an unlawful activity at the outset is necessary, and any unlawful

activity

to which the proceeds have been derived as determined at the end of the trial would

suffice.

Additionally, the proof does not have to amount to a conviction for a specified unlawful activity. It is enough that the

unlawfulness

of the origin of the proceeds is established beyond reasonable doubt by proving the criminal act and mental elements constituting the unlawfulness, regardless of the presence of circumstances or defenses meriting an acquittal if the unlawful activity were being tried on its own.

Too, there is no need for the prosecution to establish that

the proceeds are made to appear to have originated from legitimate sources.

This imposes a burden upon the prosecution that the law does not require. It is therefore unfair as it is unnecessary.

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