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The Philippines: Prosecutor cannot review court’s determination of probable cause




On March 6 2017, in the case of Forietrans Manufacturing Corp et al (FMC) v Davidoff and Japan Tobacco et al, (GR No 197482) the Supreme Court (SC) affirmed the decision of the Court of Appeals (CA) which reversed the resolutions of the Secretary of Justice (Secretary) finding no probable cause to charge FMC for the crimes of infringement and false designation of origin with reference to the trade marks Davidoff and Mild Seven.

In August, 2004, the Regional Trial Court of San Fernando, Pampanga granted the applications for search warrants against FMC for (1) storing in its premises counterfeit cigarettes with the mark Dageta with the indication "Made in Germany", which was confusingly similar to the Davidoff trade mark, and (2) illegal manufacture and distribution of counterfeit cigarettes bearing the mark Mild Seven of Japan Tobacco (JTI). The raids were conducted by the Criminal Investigation and Detection Group (CIDG), which with the seized articles as evidence filed the complaints for preliminary investigation for trade mark infringement and false designation of origin. The prosecutor dismissed the complaints on the following grounds: (1) the affidavit of the witness submitted to the RTC which issued the search warrant was insufficient to show probable cause, and (2) there was no proof that FMC manufactured fake Mild Seven cigarettes. On appeal, the Secretary affirmed the dismissal of the complaints.

However, on appeal by Davidoff and JTI, the CA found that the Secretary acted with grave abuse of discretion and reversed his resolutions, and ordered the prosecutor to file the complaints with the RTC. The CA said that the Secretary "assumed the function of the trial judge of calibrating the evidence when he ruled that the seizure of the Mild Seven cigarettes did not happen since no arrests were made, and that seizure of the Dageta cigarettes did not prove infringement", which matters are evidentiary in character and best aired during the trial proper. Dissatisfied, FMC appealed to the SC claiming that the CA should not interfere with the valid exercise of executive power by the prosecutor and the Secretary in the determination of probable cause during the preliminary investigation.

The SC denied FMC's petition and found that the Secretary committed grave abuse of discretion when he disregarded the evidence on record. The SC ruled that the "determination of probable cause by the judge should not be confused with the determination of probable cause by the prosecutor. The first is made by the judge to ascertain…whether a search warrant should be issued. The second is made by the prosecutor during preliminary investigation to determine whether a criminal case should be filed in court. The prosecutor has no power or authority to review the determination of probable cause by the judge, just as the latter does not act as the appellate court of the former."

Editha R Hechanova

Hechanova & Co., Inc.
Salustiana D. Ty Tower
104 Paseo de Roxas Avenue
Makati City 1229, Philippines
Tel: (63) 2 812-6561
Fax: (63) 2 888-4290
editharh@hechanova.com.ph    
www.hechanova.com.ph


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