GR L 7428; (November, 1912)

EN BANC

G.R. No. L-7428; November 12, 1912

THE UNITED STATES, plaintiff-appellee,

vs.
LIM SING alias LIM SIN, defendant-appellant.

Amando Avanceña, for appellant.
Office of the Solicitor-General Harvey, for appellee.

CARSON, J.:

The evidence of record conclusively establishes the guilt of the appellant smoking opium in violation of the provisions of Act No. 1761; and further that he is s recidivist, in that on a former occasion he was convicted of a similar violation of the Opium Law.

The trial judge found him guilty as charged in the information, and ordered his deportation from the Philippine Islands under the provisions of section 32 of Act No. 1761, as amended by section 4 of Act No. 1910, which is as follows:

On and after March first, nineteen hundred and eight, it shall be unlawful for any person in the Philippine Islands to inhale, smoke, chew, swallow, inject, or otherwise use or permit to be use in or on his body any opium prescription of a duly licensed and practicing physician.

Any person violating any of the provisions of this section shall be punished by a fine not exceeding ten thousand pesos nor less than three hundred pesos, or by imprisonment for not exceeding five years, nor less than three months, or by both such a fine and imprisonment, in the discretion of the court: Provided, however, That in the case of the commission of a second offense under the provisions of this section, any person so convicted, if other than a citizen of the United States or a citizen of the Philippine Islands, may, by order of the court, be deported.

The Solicitor-General, in his brief, invites the attention of the court to the fact that the evidence discloses that the appellant has a native wife and child living in the Province of Iloilo, with whom he was living at the time of his arrest, and suggests that under all the circumstances of this case the penalty of deportation would appear to be excessive. In this we agree with the Solicitor-General.

An exceptionally wide range of discretion is conferred upon the courts in the imposition of the penalties prescribed for violations of the penalized provisions of the Opium Law. But this discretion should not be exercised arbitrarily, and in imposing the prescribed penalties the courts should always have in mind the purpose and object of the statute as a whole. We think that a review of the legislation having for its object the regulation of the use and sale of opium, its derivatives and compounds, as such legislation has been adopted in this as well as in many foreign jurisdictions, justifies the conclusion that the primary object of the statute now in force in these Islands is the protection of the body politic from the evils which are believed to be incident to the widespread use of this habit forming drug other than as a medicine or for scientific purposes. With this object in view all unauthorized use of or traffic in the drug is penalized, the prescribed penalties to be imposed by the courts in their discretion within very wide limits.

The exceptionally wide extent of discretion conferred upon the courts under the statute clearly indicates the intention of the legislator that in applying these penalties the courts should have in mind, at all times, the primary object of the law, that is to say the suppression of the vice, as a widespread evil threatening the public welfare; and further, the particular circumstances of each case, and the degree of criminality involved in the particular violation of the statute of which the accused person has been convicted.

Accordingly we have heretofore held that —

Upon a person who is convicted only of the crime of smoking opium, or of having in his possession such a small quantity of the drug as to justify the inference that it was intended merely for his own personal use, this court has always readily affirmed the imposition of the minimum penalty; but upon those who attempt to `exploit the vice’ and violate the provisions of the Opium Law for gain, it is deemed proper that, within the discretionary limits prescribed by law, a higher and more severe penalty should be imposed. (U. S. vs. Castañeda, 18 Phil. Rep., 58.)

In accord with the views thus set forth we have affirmed a large number of sentences imposing heavy fines and prison sentences upon persons convicted of violation of the Opium Law, in cases wherein it appeared from the evidence that such persons had been engaged in its illegal importation or sale, or in the keeping of opium dens or the unlawful handling of the drug for profit, in any form. Indeed we have adopted the practice in such cases of adding a prison sentence where the court below has imposed a fine without imprisonment. Mere fines, however large, do not seem to serve as a sufficient deterrent to offenders of this class, doubtless because the illicit gains from the traffic in the drug are so great, while the chances of detection and punishment are in most instances so few, as a result of the comparatively small bulk of the contrabond article.

The following cases illustrate quite clearly our practice in this regard, and also our uniform practice of sustaining the courts below in cases wherein they have held that the unexplained illegal possession of the drug, in quantities considerably in excess of an amount which would appear to be reasonably sufficient for the personal use of a victim of the opium habit, justifies the inferences that the possessor is engaged in handling the drug for profit.

In the case of U. S. vs. Chia-Tua (12 Phil. Rep., 605), a fine of P500 and two months’ imprisonment was imposed on conviction of sale of opium without license.

In the case of U. S. vs. Lao Lock Hing (14 Phil. Rep., 86), a penalty of two years’ imprisonment and a fine of P3,000 was imposed upon conviction of an attempt to smuggle seventy tins of opium into the Islands.

In the case of U.S. vs. Villano (18 Phil. Rep., 359), a sentence of one year and two months’ imprisonment and the payment of a fine of P2,500, upon conviction of an attempt to smuggle a hundred tins of opium into the Islands, was affirmed.

In the case of U. S. vs. Look Chaw (19 Phil. Rep., 343), sentence of six months’ imprisonment and a fine of P1,000 was imposed for a violation of section 15 of the Opium Law.

In the case of U. S. vs. Lee See (20 Phil. Rep., 398), penalty of six months’ imprisonment and P1,000 fine for an attempt to smuggle twenty-eight tins of opium into the Philippines was affirmed.

See also U. S. vs. Petallio (15 Phil. Rep., 642), wherein a penalty of one year and one day was imposed; U. S. vs. Ana (15 Phil. Rep., 648), wherein a penalty of six months’ imprisonment and P300 fine was imposed; U. S. vs. Lim Tioco (15 Phil. Rep., 650), wherein imprisonment and a fine of P500 was imposed; U. S. vs. Tan-Quimyung (15 Phil. Rep., 678) wherein imprisonment for one year and a fine of P2,000 was imposed; U. S. vs. Lee (20 Phil. Rep., 596), wherein one year’s imprisonment was imposed; and a number of others of like tenor and effect.

On the other hand, the following cases illustrate the practice of this court in affirming sentences imposing lighter penalties in cases where the conviction was for a first offense, and the violation of the law consisted of smoking opium, or the illegal possession of small quantities of the drug or of smoking utensils, under circumstances which would not justify the inference that the convict was engaged in “exploiting the vice” for gain. (U. S. vs. Yu-Taco 15 Phil., Rep., 669; U. S. vs. Que-Latt, 15 Phil. Rep., 680; U. S. vs. Hong Kong, 16 Phil. Rep., 678; U. S. vs. Go Chin, 16 Phil. Rep., 680; U.S. vs. Lim Chu, 16 Phil. Rep., 681; U. S. vs. Fariñas Go Juanco, 16 Phil. Rep., 684; U. S. vs. Uy Tico, 16 Phil. Rep., 685; U. S. vs. Go Tianco, 16 Phil. Rep., 686; U. S. vs. Yu Chang Co, 17 Phil. Rep., 603; U. S. vs. Ng Se, 17 Phil. Rep., 607; U. S., vs. Phee, 17 Phil. Rep., 610; Go-Dingco, 17 Phil Rep., 611; U. S. vs. Yap Chincian, 17 Phil. Rep., 617; U. S. vs. Radam, 17 Phil Rep., 626; U. S. vs. Tam Bun, 17 Phil. Rep., 630; U. S. vs. Lim Tan Co, 17 Phil. Rep., 637; U. S. vs. Ang Lu, 17 Phil Rep., 637; U. S. vs. Ang Kan, 17 Phil. Rep., 638; U. S. vs. Yuen Chue, 17 Phil. Rep., 638; U. S. vs. Sy Yh Co, 17 Phil Rep., 639; U. S. vs. Tan Nga Hui, 17 Phil. Rep., 640; U. S. vs. Lim Chin, 17 Phil. Rep., 645; U.S. vs. Bautista, 17 Phil. Rep., 646; U. S. vs. Sy Wah, 17 Phil. Rep., 646; U. S. vs. Chua Co, 17 Phil Rep., 647; U. S. vs. Vijunco, 17 Phil. Rep., 658; U. S. vs. Ing Tong, 18 Phil. Rep., 597; U. S. vs. Tan Chuco and Hao Chat Quiat, 18 Phil. Rep., 597; U. S. vs. Si hong Ki, 18 Phil. Rep., 607; U. S. vs. Tan Pang, 18 Phil. Rep., 607; U. S. vs. Co Su, 18 Phil Rep., 615; U. S. vs. Yap, 18 Phil. Rep., 617; U. S. vs. Bañares and Go-Paya, 18 Phil. Rep., 619; U. S. vs. Chua Hun Hi, 18 Phil. Rep., 620; U. S. vs. Go Siong Huy, 18 Phil. Rep., 620; U. S. vs. Tan Hong Ki, 18 Phil. Rep., 621; U. S. vs. Wui Co, 18 Phil. Rep., 622; U. S. vs, Guillen Co Cuebo, 18 Phil. Rep., 622; U. S. vs. Chua Ting, 18 Phil. Rep., 630; U. S. vs. Hu Bu, 18 Phil. Rep., 631; U. S. vs. Zapa and Marquez 18 Phil. Rep., 633; U. S. vs. Go Lean, 20 Phil. Rep., 593; U. S. vs. Bertran, 20 Phil. Rep., 594; U. S. vs. Co Ba, 20 Phil. Rep., 595; U. S. vs. Yap Tiongco, 20 Phil. Rep., 602; U. S. vs. Poh Chi, 20 Phil. Rep., 607; U. S. vs. Ly Juat Co, 20 Phil. Rep., 625; U. S. vs. Teves, 20 Phil Rep., 635.)lawph!l.net

A criminal examination of these cases will disclose that in the earlier appeals, while we favored the imposition of lighter penalties, we were at first inclined to leave undisturbed sentences of the lower courts imposing fines somewhat in excess of three hundred pesos, even prison sentences, when such penalties were not much in excess of the minimum penalties prescribed by law, that is to say a fine of P300 or three months’ imprisonment. But, as will appear from the later cases, a wider experience in the review of cases originating in the various courts throughout the Islands, and more practical working of the law have convinced us that, as a rule in such cases, in the absence of some sufficient reason, made to appear of record in a particular case, all prison sentences and fines in excess of P300 should be modified by the substitution therefor of a fine of P300. We have been brought to this conclusion not merely by the marked inequality in the application of penalties in such cases in the different courts in the Islands, and even in the same court on different occasions; but also because of the vicious consequences flowing from the uncertainty as to the severity of the penalties to be imposed upon convicts in such cases. The provisions of the law touching awards for informers carry with them a very real danger of abuses even under the most careful and painstaking administration of justice. With the fact that the danger of such abuses is a necessary incident of the law, the courts have nothing to do. That is a question for the Legislature, and it is the duty and prerogative of the Legislator to determine whether the advantages derived from these provisions outweigh the danger of the abuses incident to them. But it is the duty of the courts to guard against such abuses to the full extent of their power, and to administer the law so as to reduce them to the minimum. In our opinion the imposition of unequal and at times arbitrarily severe penalties, on persons convicted of smoking opium of having small quantities of the drug in their possession, is calculated to increase enormously the danger of such abuses, by greatly increasing the facility with which evilly disposed innocent with threats of prosecution for violations of the law of this nature. The fear that the courts may impose along prison sentence, or even an extremely heavy fine on conviction upon a charge of smoking opium, places one who is conscious of guilt practically at the mercy of an informer who demands large sums as the price of silence; and the peculiar difficulties confronting an accused person in an attempt to overcome a well laid conspiracy to secure his conviction on such a charge, combined with the fear of such severe penalties may, and we are convinced not infrequently do induce innocent persons, especially those of the Chinese race, to pay tribute to blackmailers, who prey upon their ignorance or their fears.

Our remarks in this connection should not be construed as an attempt to limit or prescribe the discretion of the courts below to impose more severe penalties upon opium smokers than that just indicated, where the evidence discloses strong or compelling reasons therefor. Indeed, in a case very recently decided, we affirmed a prison sentence (reduced to three months) imposed upon one convicted of smoking opium, where the evidence of disclosed that at the time when he was found making use of the drug, others were smoking in his house at his invitation, or at least with his permission, though we gathered from all the surrounding circumstances that the permission to make use of his house for that purpose was not granted for profit or in an attempt to exploit the vice for gain. And in cases where it affirmatively appears that the convict, because of inability to pay a fine of P300, would suffer subsidiary imprisonment of more than three months for his failure so to do, we can see no objection to the imposition of three months’ imprisonment rather than the fine.

In this connection it is proper to add that if provision were made by law for the detention and hospital treatment of persons convicted of opium smoking or the use of the drug in any form, with a view to their permanent reform rather than as a punishment for the offense committed, it might be and doubtless would be our duty to adopt a different practice in an attempt to give effect to the intent of the legislator. The practice actually adopted is based on conditions as they actually exist, under the law as it now stands on the statute book.

From what has been said, we think it must be very clear that the penalty of banishment upon a domiciled alien upon second conviction of smoking opium, should not be sustained, in the absence of exceptionally strong and compelling reasons for the imposition of so extraordinarily severe a penalty. Of course, if the facts disclosed a bold and contumacious defiance of the law of the land by a foreigner who is permitted to reside in the Islands, or if it appeared that an alien, himself a confirmed victim of the habit, was engaged in fomenting the vice and encouraging or inducing others to smoke, his deportation would be clearly justified under the law. But the mere fact that a domiciled alien, a habitual user of the drug, has been twice convicted of its use, does not, in our opinion, necessitate the imposition of a penalty which would utterly ruin his business, separate him from his wife and children in a case such as that at bar, and expose him to loss and suffering far in excess of those entailed by the sentence which would be imposed upon a citizen for a like offense. We do not believe that the legislator intended or anticipated that the discretion vested in the courts in cases of this character would be exercised so as to produce such unjust and inequitable consequences. (U.S. vs. Yu Quico, 17 Phil. Rep., 625; U.S. vs. Lim Chit, 17 Phil. Rep., 647.)

We think that this being the second offense, the penalty to be imposed should be somewhat more severe than that which should be imposed upon a first offender; and that, in this case, the convict should be sentenced to a prison sentence in addition to a fine.

The judgment conviction of the lower court is affirmed, but the sentence of deportation is hereby sentenced to three months’ imprisonment and to the payment of a fine of P300, with subsidiary imprisonment to law in the event of insolvency and nonpayment of the fine, and to the payment of the costs in both instances. So ordered.

Arellano, C.J., Torres, Mapa, Johnson and Trent, JJ., concur.

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