G.R. No. L-48456; November 12, 1941
EL PUEBLO DE FILIPINAS, querellante y apelado, vs. NGO CHAY (alias GO CHAY), acusado y apelante.

FACTS

The accused, Ngo Chay (alias Go Chay), pleaded guilty and was subsequently convicted for being a third-time offender of the provisions of Article 190 of the Revised Penal Code, for having in his possession one opium pill weighing 0.370 grams. The Court of First Instance of Manila sentenced him to an indeterminate penalty of two months and one day of arresto mayor to one year, eight months, and twenty-one days of prision correccional, and to pay a fine of P1,000, plus the costs of the proceedings. He appealed his sentence despite having admitted his guilt, believing the imposed penalty was excessive and arguing that since he would likely be deported afterward, it would be best to shorten his prison term. The allegations in the complaint, which the appellant admitted without attempting to refute in the slightest, establish that the offense committed is his third, making him a recidivist.

ISSUE

Whether the penalty imposed by the trial court on the accused-appellant is correct and proper under the circumstances.

RULING

The Supreme Court modified the appealed judgment. Article 190 of the Revised Penal Code punishes offenses like the one imputed to the appellant with arresto mayor in its medium degree to prision correccional in its minimum degree, i.e., from two months and one day of arresto mayor to two years, four months, and one day of prision correccional, plus a fine of P300 to P10,000 and costs. Two circumstances were proven in the appellant’s case: the mitigating circumstance of voluntary confession and the aggravating circumstance of recidivism. In such cases, the penalty to be imposed is the medium period of that prescribed by law, pursuant to Article 64, Rule 4, of the Revised Penal Code. The medium period of the indicated penalty is from four months and one day to six months. The Court deemed it proper to impose the minimum of that degree, or four months and one day of arresto mayor.
Regarding the fine, the records show the appellant is solvent; this is precisely why he is currently detained in jail, unable to post bail for his provisional liberty. The law provides that when imposing a fine, the possibilities or solvency of the accused must be primarily considered (Article 66, Revised Penal Code). Furthermore, when an insolvent accused fails to pay his fine, the subsidiary imprisonment he must suffer cannot exceed one-third of his principal prison penalty. This means that if a fine of P1,000 were imposed on the appellant, his subsidiary imprisonment could not exceed one-third of four months.
As to the appellant’s claim that he might be deported, the Court declared that the only authority that can order the appellant’s deportation is the President of the Commonwealth, by virtue of the power granted by Section 69 of the Administrative Code. The President is free to take such action at any time deemed opportune, whether or not the subject to be deported is serving a sentence by judicial order.
DISPOSITIVE PORTION:
For the reasons stated, the appealed sentence is modified, sentencing the appellant to suffer the penalty of four months and one day of arresto mayor, plus a fine of P400, suffering in case of insolvency the corresponding subsidiary imprisonment. Costs in both instances are taxed against the appellant. So ordered.