Monday, May 23, 2011

Cat in the Act (Landmark conviction under the Animal Welfare Act)

By Siesta-friendly

There are 2 cats involved in this story. One is Tengteng, a month-old feline residing presumably within the UP campus and cared for by someone as evidenced by his leash and a few photos taken of him[1].  

And the other, Joseph Carlo Candare, a UP Physics student who tortured and killed Tengteng.  In the interest of fair exposure, below are pictures of Mr. Candare[2]

The 2 fatefully met under gruesome details provided none other than by Mr. Candare himself in a blog entry aptly titled “I killed Schrödinger’s cat”.  The blog has been deleted but a snapshot of his blog entry reveals the relevant details below[3]

That was in 2009.  PAWS (Philippine Animal Welfare Society) promptly filed a criminal complaint against Mr. Candare under the Animal Welfare Act (R.A. 8485, February 1998).

In a further show of remorselessness, Mr. Candare failed to show up at trial until a warrant of arrest was issued against him.

Anyway, below are the pertinent sections of RA 8485 pursuant to which Mr. Candare was charged -

Sec. 6. It shall be unlawful for any person to torture any animal, to neglect to provide adequate care, sustenance or shelter, or maltreat any animal or to subject any dog or horse to dogfights or horsefights, kill or cause or procure to be tortured or deprived of adequate care, sustenance or shelter, or maltreat or use the same in research or experiments not expressly authorized by the Committee on Animal Welfare.
The killing of any animal other than cattle pigs, goats, sheep, poultry, rabbits, carabaos, horses, deer and crocodiles is likewise hereby declared unlawful except in the following instances:

(1)   When it is done as part of the religious rituals of an established religion or sect or a ritual required by tribal or ethnic custom of indigenous cultural communities; however, leaders shall keep records in cooperation with the Committee on Animal Welfare;

(2)   When the pet animal is afflicted with an incurable communicable disease as determined and certified by a duly licensed veterinarian;

(3)   When the killing is deemed necessary to put an end to the misery suffered by the animal as determined and certified by a duly licensed veterinarian;

(4)   When it is done to prevent an imminent danger to the life or limb of a human being;

(5)   When done for the purpose of animal population control;

(6)   When the animal is killed after it has been used in authorized research or experiments; and

(7)   Any other ground analogous to the foregoing as determined and certified licensed veterinarian.

In all the above mentioned cases, including those of cattle, pigs, goats, sheep, poultry, rabbits, carabaos, horses, deer and crocodiles the killing of the animals shall be done through humane procedures at all times.
For this purpose, humane procedures shall mean the use of the most scientific methods available as may be determined and approved by the committee.
Only those procedures approved by the Committee shall be used in the killing of animals.

Sec. 8. Any person who violates any of the provisions of this Act shall, upon conviction by final judgment, be punished by imprisonment of not less than six (6) months nor more than two (2) years or a fine of not less than One thousand pesos (P1,000.00) nor more than Five thousand pesos (P5,000.00) or both at the discretion of the Court. If the violation is committed by a juridical person, the officer responsible therefor shall serve the imprisonment when imposed. If the violation is committed by an alien, he or she shall be immediately deported after service of sentence without any further proceedings.

Its now 2011 and, finally, there’s a conviction against an animal torturer not engaged in the trade of animals or animal meat.  Mr. Candare is just a college student, albeit with what appears to be psychopathic tendencies.

In lieu of imprisonment, Mr. Candare was ordered to pay a P1,000 fine and to do 6 months of community service for PAWS.  Pretty light it seems considering his self-confessed serial killing, the gruesomeness of his work and his lack of empathy. 

Mr. Candare got all of Tengteng’s nine lives while he has the chance to start a new one for himself.  We look forward to the psychiatric help he is reported to be getting as a result of his crime.  Studies have long been made on the link of animal cruelty and full-blown psychopathy.  No one wants another landmark case, this time of a serial killer of a more advanced animal.  

Monday, May 16, 2011

FOR YOUR EYES ONLY: Anti- Photo and Video Voyeurism

By Obiter07

No longer can voyeurs and peeping toms with a penchant for recording what they see claim that no law prohibits their activities.  Republic Act No. 9995 is “AN ACT DEFINING AND PENALIZING THE CRIME OF PHOTO AND VIDEO VOYEURISM, PRESCRIBING PENALTIES THEREFOR, AND FOR OTHER PURPOSES” (July 2009).   With the prevalence of cellphone and other small cameras, Congress has seen fit to punish those who violate the privacy of others through these means.

The Prohibited Acts are as follows:

“(a) To take photo or video coverage of a person or group of persons performing sexual act or any similar activity or to capture an image of the private area of a person/s such as the naked or undergarment clad genitals, public[1] (sic) area, buttocks or female breast without the consent of the person/s involved and under circumstances in which the person/s has/have a reasonable expectation of privacy;

(b) To copy or reproduce, or to cause to be copied or reproduced, such photo or video or recording of sexual act or any similar activity with or without consideration;

(c) To sell or distribute, or cause to be sold or distributed, such photo or video or recording of sexual act, whether it be the original copy or reproduction thereof; or

(d) To publish or broadcast, or cause to be published or broadcast, whether in print or broadcast media, or show or exhibit the photo or video coverage or recordings of such sexual act or any similar activity through VCD/DVD, internet, cellular phones and other similar means or device.

The prohibition under paragraphs (b), (c) and (d) shall apply notwithstanding that consent to record or take photo or video coverage of the same was given by such person/s. Any person who violates this provision shall be liable for photo or video voyeurism as defined herein. (Section 4)” [Emphasis supplied]

The act of taking video or photo coverage of sexual acts and of private parts without consent has been made a crime.  So is copying, selling, distributing, publishing or broadcasting the same.  And this is still punishable even if the ostensible victim has consented to the coverage:

(d) "Photo or video voyeurism" means the act of taking photo or video coverage of a person or group of persons performing sexual act or any similar activity or of capturing an image of the private area of a person or persons without the latter's consent, under circumstances in which such person/s has/have a reasonable expectation of privacy, or the act of selling, copying, reproducing, broadcasting, sharing, showing or exhibiting the photo or video coverage or recordings of such sexual act or similar activity through VCD/DVD, internet, cellular phones and similar means or device without the written consent of the person/s involved, notwithstanding that consent to record or take photo or video coverage of same was given by such person/s.”(Section 3, Definition of Terms) [Emphasis supplied]

Consent to the coverage and written consent to its further distribution or showing is required in order to stay clear of this law.  But it is another matter whether consent can be a defense to charges of pornography or indecency. This would be covered by the Revised Penal Code, specifically ARTICLE 201 which covers “Immoral doctrines, obscene publications and exhibitions, and indecent shows.”[2]

There is a reasonable expectation of privacy where a person believes “that he/she could disrobe in privacy, without being concerned that an image or a private area of the person was being captured; or circumstances in which a reasonable person would believe that a private area of the person would not be visible to the public, regardless of whether that person is in a public or private place” (Section 3 (f)).  Hence, it doesn’t matter whether you go naked in a motel, in your backyard or even a secluded spot in a public area, you may be “covered” (pun intended) by the law.  The paparazzi will have to behave accordingly.

A violator faces the “penalty of imprisonment of not less than three (3) years but not more than seven (7) years and a fine of not less than One hundred thousand pesos (P100,000.00) but not more than Five hundred thousand pesos (P500,000.00), or both, at the discretion of the court xxx.”   If the “violator is a juridical person, its license or franchise shall be automatically be deemed revoked and the persons liable shall be the officers thereof including the editor and reporter in the case of print media, and the station manager, editor and broadcaster in the case of a broadcast media. If the offender is a public officer or employee, or a professional, he/she shall be administratively liable. If the offender is an alien, he/she shall be subject to deportation proceedings after serving his/her sentence and payment of fines. (Section 5)”

The only exception is given to peace officers “authorized by a written order of the court, to use the record or any copy thereof as evidence in any civil, criminal investigation or trial of the crime of photo or video voyeurism: Provided, That such written order shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he/she may produce, and upon showing that there are reasonable grounds to believe that photo or video voyeurism has been committed or is about to be committed, and that the evidence to be obtained is essential to the conviction of any person for, or to the solution or prevention of such, crime  (Section 6).”   Any record, photo or video in violation of the foregoing shall be inadmissible in evidence in any proceeding (Section 7).

The law defines the private area of a person to mean “the naked or undergarment clad genitals, public (sic) area, buttocks or female breast of an individual.” With respect to breasts, it includes “any portion of the female breast.”

It would be interesting to see whether wardrobe malfunctions would be covered by this law.  All the elements would still be present, since there would be video coverage of private parts without consent, albeit accidental, and the broadcast of the same. 

The law speaks of “any portion of the female breast.”  Would a televised shot of a starlet’s cleavage and nothing more be punishable under the law?    It would seem so and this renders the statute vulnerable to Constitutional attack for being vague or too broad. 

The actual application of this law should not take long in coming. There has been one incident where a man was able to record through his cellphone the intimate acts of a couple in a Manila mall’s comfort room.  He thereafter sought ransom in exchange for not posting the video on the net.[3]  And a gym instructor was recently apprehended for “filming upskirt videos in a Quezon City supermarket” using his mobile phone.[4]

It looks like you may stop and look, provided you don’t record anything for posterity or notoriety, as the case may be, if you have no wish to run afoul of this law.  In fine, this Act says that whatever you get to see is for your eyes only, no one else’s.  Yet there is still no escape as you may still be charged with the offense of “unjust vexation”[5] under the Revised Penal Code, the standard complaint against peeping toms.[6]

[1] All copies thus far on the net use the word “public” when it can be inferred that the correct term is “pubic.”

[2] ARTICLE 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows. — The penalty of prision mayor or a fine ranging from six thousand to twelve thousand pesos, or both such imprisonment and fine, shall be imposed upon:
(1) Those who shall publicly expound or proclaim doctrines openly contrary to public morals;
(2) (a) The authors of obscene literature, published with their knowledge in any form; the editors publishing such literature; and the owners/operators of the establishment selling the same;
(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent or immoral plays, scenes, acts or shows, it being understood that the obscene literature or indecent or immoral plays, scenes, acts or shows, whether live or in film, which are prescribed by virtue hereof, shall include those which (1) glorify criminals or condone crimes; (2) serve no other purpose but to satisfy the market for violence, lust or pornography; (3) offend any race or religion; (4) tend to abet traffic in and use of prohibited drugs; and (5) are contrary to law, public order, morals, and good customs, established policies, lawful orders, decrees and edicts;
(3) Those who shall sell, give away or exhibit films, prints, engravings, sculptures or literature which are offensive to morals. (As amended by Presidential Decree Nos. 960 and 969,
July 24, 1976.)

[3] Javier, Journal Online 2008-09-15 as cited in

[4]Fitness instructor arrested for capturing upskirt videos, SPOT – Thu, May 5, 2011

[5] ARTICLE 287. Light coercions. — Any person who, by means of violence, shall seize anything belonging to his debtor for the purpose of applying the same to the payment of the debt, shall suffer the penalty of arresto mayor in its minimum period and a fine equivalent to the value of the thing, but in no case less than 75 pesos.
Any other coercions or unjust vexations
shall be punished by arresto menor or a fine ranging
from 5 to 200 pesos, or both.

[6] Manila clamps down on peeping toms By Sandy Araneta (The Philippine Star) Updated June 05, 2010


Tuesday, May 10, 2011

PARK AND PAY: Liability of hotels for guest’s vehicle

By Obiter07

In “DURBAN APARTMENTS CORPORATION doing business under the name and style of City Garden Hotel vs. PIONEER INSURANCE AND SURETY  CORPORATION,” G.R. No. 179419  (January 12, 2011),  the Supreme Court passed upon the liability of hotels for providing valet parking to guests.

This arose after a hotel guest, and Pioneer’s insured, checked into the City Garden hotel in Makati. The hotel’s parking attendant and co-defendant got the keys to the guest’s vehicle and parked it an adjacent lot owned by a third party.  The guest was subsequently awakened so as to be advised that his car had been taken. The guest made the necessary reports and thereafter filed a claim for insurance with Pioneer which paid the same as indemnity for the vehicle’s loss.  Pioneer alleged that the loss was an offshoot of the hotel’s negligence and accordingly filed a claim by means of subrogation, against the hotel and its parking valet. It was established that there was a previous similar incident and yet no “no necessary precautions were taken to prevent its repetition xxx”.  Pioneer argued that the hotel was “was wanting in due diligence in the selection and supervision of its employees particularly its parking valet.”

On a procedural note, Pioneer was allowed to present evidence ex parte in view of the hotel’s failure to file a pre-trial brief and to appear at pre-trial.

The Hotel argued that the insured was not a guest of the hotel but a visitor therein, that its valet did not get his keys but it was the insured who requested him to find a space wherever one was available, that valet parking was provided for convenience of its customers and that it was a special privilege that was given to the insured.  The vehicle was taken without using the key which was even turned over to the owner. Its valet even tried to run after the carnappers to no avail.

 The guest testified that he drove his vehicle in front of the hotel where the parking attendant approached and asked him for his key, and issued a “valet parking customer’s claim stub.”  He then checked in at the hotel with a companion.  At around 1 a.m., he was advised of the carnapping incident.   An adjuster testified that based on his investigation, the hotel would assist guests in parking, and with only 12 parking slots, entered into an agreement with an adjacent bank to use the latter’s space at night. He discovered that a van had been carnapped from the same lot barely a month before.

The lower court ruled in favor of Pioneer and ordered Durban to pay the “sum of P1,163,250.00 with legal interest thereon from July 22, 2003 until the obligation is fully paid and attorney’s fees and litigation expenses amounting to P120,000.00.”   This was affirmed by the Court of Appeals.

The High Court upheld the ruling that the hotel was in “default for failure to appear at the pre-trial conference and to file a pre-trial brief, and thus, correctly allowed respondent to present evidence ex-parte.”  It also affirmed the finding that it was liable for the loss of the vehicle. The procedural aspect will not be dealt with in detail here.

Despite the finding of default, the Supreme Court emphasized that “defendant’s (petitioner’s) preclusion from presenting evidence during trial does not automatically result in a judgment in favor of plaintiff (respondent). The plaintiff must still substantiate the allegations in its complaint. 

It found that the allegations of Pioneer in the complaint were substantiated, “i.e., a contract of necessary deposit existed between the insured xxx and petitioner. On this score, we find no error in the following disquisition of the appellate court:

[The] records also reveal that upon arrival at the City Garden Hotel, See gave notice to the doorman and parking attendant of the said hotel, x x x Justimbaste, about his Vitara when he entrusted its ignition key to the latter. x x x Justimbaste issued a valet parking customer claim stub to See, parked the Vitara at the Equitable PCI Bank parking area, and placed the ignition key inside a safety key box while See proceeded to the hotel lobby to check in. The Equitable PCI Bank parking area became an annex of City Garden Hotel when the management of the said bank allowed the parking of the vehicles of hotel guests thereat in the evening after banking hours.
Interesting is the finding that the bank’s parking area was deemed an “annex” to the hotel.  A hotel’s use of an adjacent lot appears to subject the same to its control.  

The Court cited Article 1962, in relation to Article 1998, of the Civil Code:
“Art. 1962. A deposit is constituted from the moment a person receives a thing belonging to another, with the obligation of safely keeping it and returning the same. If the safekeeping of the thing delivered is not the principal purpose of the contract, there is no deposit but some other contract.

Art. 1998. The deposit of effects made by travelers in hotels or inns shall also be regarded as necessary. The keepers of hotels or inns shall be responsible for them as depositaries, provided that notice was given to them, or to their employees, of the effects brought by the guests and that, on the part of the latter, they take the precautions which said hotel-keepers or their substitutes advised relative to the care and vigilance of their effects.”

The insured deposited the vehicle for safekeeping with the hotel, through its employee.  This employee issued a claim stub to the insured. The contract of deposit was perfected from the delivery of the vehicle, when the keys were handed over to the hotel’s employee, and which he “received with the obligation of safely keeping and returning it.”   

This could conceivably be used as basis for users of mall and other public parking lots to claim indemnity for loss or damage to their vehicles.  It would be interesting to see if the practice of placing disclaimers of liability in the parking stub, as well as in signages, would be upheld by the courts as binding on the users. It does stand to reason that when you are made to park and pay, parking lot providers owe a degree of care to insure your vehicle is kept safe and sound.  And if they fail to adhere to this standard, then they should be sorry they didn’t, as in this case.