EN BANC

[G.R. No. 207342. August 16, 2016.]

GOVERNMENT OF HONGKONG SPECIAL ADMINISTRATIVE REGION,

represented by the PHILIPPINE DEPARTMENT OF JUSTICE ,
petitioner, vs. JUAN ANTONIO MUÑOZ , respondent.

DECISION

BERSAMIN , J : p

This case is the third in the trilogy of cases that started with the 2000 case of
Cuevas v. Muñoz , 1 which dealt with respondent Juan Antonio Muñoz's provisional
arrest as an extraditee, and the 2007 case of Government of Hong Kong Special
Administrative Region v. Olalia, Jr. , 2 which resolved the question of Muñoz's right to
bail as a potential extraditee. Both rulings dealt with and resolved incidents arising
during the process of having Muñoz extradited to Hong Kong under and pursuant to the
Agreement Between the Government of the Republic of the Philippines and the
Government of Hong Kong for the Surrender of Accused and Convicted Persons (RP-
HK Agreement).
Up for our consideration and resolution in the current case is whether or not the
extradition request of the Government of Hong Kong Special Administrative Region
(HKSAR) suf ciently complied with the RP-HK Agreement and Presidential Decree No.
1069 (Philippine Extradition Law). On November 28, 2006, the Regional Trial Court
(RTC), Branch 8, in Manila granted the request for the extradition of Muñoz. 3 Although
the CA at rst ruled that Muñoz could be tried in Hong Kong for the crimes of
conspiracy to defraud and accepting an advantage as an agent, it granted his motion
for reconsideration and promulgated the now assailed amended decision on March 1,
2013 in CA-G.R. CV No. 88610, 4 in which it pronounced that the crime of accepting an
advantage as an agent should be excluded from the charges for which he would be
tried in Hong Kong due to non-compliance with the double criminality rule. Also being
challenged is the resolution promulgated on May 29, 2013 by the CA (denying the
motion for reconsideration of the petitioner). 5
Antecedents
As factual antecedents, the CA narrated the following:
Bared to its essentials, the record shows that in late 1991, respondent-
appellant, as Head of the Treasury Department of the Central Bank of the
Philippines (CBP), was instructed by its Governor to raise Seven Hundred Million
US Dollars (US$700M) in order to fund the buyback of Philippine debts and the
purchase of zero coupon US Treasury Bonds. To this end, respondent-appellant
recommended that the amount be obtained through gold loans/swaps, for
which, seven (7) contracts of about One Hundred Million US Dollars (US$100M)
each were to be awarded to certain accredited parties. Two (2) of these
contracts were granted to Mocatta, London. These in turn were rolled over as
they matured, hence, totaling ve (5) gold loan/swap agreements in Mocatta,
London's favor. CAIHTE

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 In relation to this, petitioner-appellee narrates:
xxx xxx xxx
2. At all material times, Mr. Juan Antonio E. MUÑOZ
("MUÑOZ") was the Head of the Treasury Department of the
Central Bank of the Philippines ("CBP"). In July 1993, CBP
changed its name to the Bangko Sentral ng Pilipinas.
3. At all material times, Mr. Ho CHI ("CHI") was the
Chief Executive of Standard Chartered Bank-The Mocatta Group
(Hong Kong) ("MHK"). MHK was a branch of the Mocatta Group in
London ("Mocatta London") which was a division of the Standard
Chartered Bank.
4. CBP and MHK had been dealing in small gold
transactions for several years prior to 1991. During the latter part
of 1991, MUÑOZ and CHI began negotiating larger deals up to
US$100 M. CBP were (sic) reluctant to deal with MHK for such
large amounts and wanted to deal directly with Mocatta (London).
5. CHI approached Philip WILSON ("WILSON"), the then
Chief Dealer of Mocatta (London) about the proposed deals. CHI
indicated that to get business it would be necessary for Mocatta
(London) to pay rebates to an unnamed group of people at CBP.
WILSON told CHI that that was wrong in principal (sic) . CHI,
however, approached Keith SMITH, the then Managing Director of
Mocatta (London), who approved the payments.
xxx xxx xxx
6. Between February 1992 to March 1993, there were a
series of "gold swaps" and gold backed loans between CBP (sic)
and Mocatta (London) through MHK in Hong Kong. The
transactions were a means for CBP to raise finance.
xxx xxx xxx
9. As a result of these transactions, Mocatta (London)
paid out rebates of US$1,703,304.87 to an account ("the Sundry
Creditors Account") held with MHK for onward transmission by
MHK to destinations as instructed by CHI. Funds from this Sundry
Creditors Account were subsequently disbursed to the bene t of
CHI and MUÑOZ personally (. . .).
xxx xxx xxx
10. In addition to the gold swaps and the gold backed
loans referred to above, there were option agreements created
between CBP and MHK. Under an option agreement, CBP granted
a right to MHK to exercise (or not to exercise) the option to buy
gold at a fixed price on a fixed date.
11. As a result, between 27 July 1992 and 6 May 1993,
MHK paid US$4,026,000 into the Sundry Creditors Account,
ostensibly for CBP, as premiums for these options. . . .
xxx xxx xxx
13. CHI operated an account at Mocatta Hong Kong,
called the MHK No. 3 Account, purportedly on behalf of CBP, for
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 trading in gold. Pro ts from the trading were accrued to the
amount of US$1,625,000. The trading and the pro ts were
unknown to CBP.
14. On 12 October 1993, this US$1,625,000 was
transferred to the Sundry Creditors Account. Funds from this
Sundry Creditors Account were subsequently disbursed to the
benefit of CHI and MUÑOZ personally (. . .).
xxx xxx xxx
15. Apart from the aforesaid, there were other
payments made by MHK to the Sundry Creditors Account,
ostensibly for CBP, namely:
commission on gold location swaps US$227,086.18
commission on silver location swaps US$47,524.69
commission on options US$9,750.00
interest US$32,889.61
16. None of the above payments were known to CBP
and none of them ever reached CBP. Funds from this Sundry
Creditors Account were subsequently disbursed to the bene t of
CHI and MUÑOZ personally (. . .).
xxx xxx xxx
On the other hand, respondent-appellant gives his version, thus:
. . . the Central Bank executed all these gold loan/swap
agreements with the same counter party, namely, Mocatta
London. Muñoz signed in behalf of the Central Bank while Phil
Wilson signed for Mocatta London. DETACa

xxx xxx xxx

In late 1992 (around November or December), Muñoz
received a note from Mocatta London requesting that their
accreditation as of cial counter party of the Central Bank be
transferred to Standard Chartered Bank (SCB) in view of an
ongoing reorganization which will result in Mocatta London being
a mere division of SCB. Before such reorganization, both Mocatta
London and Mocatta Hong Kong operated as independent
subsidiaries of SCB.
xxx xxx xxx
As mentioned earlier, the Monetary Board approved the
transfer of the accreditation of Mocatta London as authorized
counter party of the bank to SCB sometime in February or March
of 1993. Mocatta London became known as SCB-The Mocatta
Group, or SCB-The Mocatta Group (sic) , or SCB-The Mocatta
Group London, while Mocatta became known as SCB-the Mocatta
Group Hong Kong. Phil Wilson was the Chief Executive Of cer for
London, while Ho Chi was the Chief Executive for Hong Kong. The
Group Chief Executive Officer was Ron Altringham.
As can be seen in Annex 'C' , even with the SCB
reorganization, the gold [loan]/swap agreements continued to be
contracted with Mocatta London. As shown, both the gold
loan/swap agreements dated March 25, 1993 and June 30, 1993
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 were signed by Phil Wilson for Mocatta London (SCB-The Mocatta
Group London). With the accreditation of SCB as the of cial
counter party of the bank, however, CB did allow the dealers to
transact minor trading transactions with Mocatta Hong Kong. CB
also allowed Mocatta Hong Kong to quote on the gold and silver
location swaps CB periodically did to decongest its vaults at the
gold plant in Quezon City. The gold swap/loan agreements,
however, as shown in the Annex, continued to be rolled over with
Mocatta London.
During Muñoz's stay in Treasury at the bank as its Head, he
did not involve himself in the details of work done by the Dealing
Group, Treasury Service Group (TSG) and Accounting which were
all headed by either Director or a Deputy Director who could clarify
any issue that may arise, and who consult with him on matters
they were unsure. The department had been operational over 6
years when Muñoz joined, and the Treasury transactions had
already become routine for majority of the staff. Muñoz meet (sic)
weekly with senior of cers to inform of development and discuss
problems of the department.
In respect to the ve gold loan/swap agreements with
Mocatta London (as well as the agreements contracted with other
of cial counter parties), upon the signing of each agreement, a
copy of the agreement was forwarded to the Dealing Group for
proper implementation. The Treasury dealers usually coordinated
with dealers of the counter party involved in effecting the
necessary transactions.
These agreements are the subject of ten (10) criminal cases led against
respondent-appellant in Hong Kong — i.e., three (3) counts of accepting an
advantage as an agent, contrary to Section 9(1) (a) of the Prevention of Bribery
Ordinance, Cap. 201 and seven (7) counts of conspiracy to defraud, contrary to
the common law of HKSAR. 6
Invoking the Agreement Between the Government of the Republic of the
Philippines and the Government of Hong Kong for the Surrender of Accused and
Convicted Persons (RP-HK Agreement), which was signed in Hong Kong on January 30,
1995, the Hong Kong Special Administrative Region (HKSAR) sent Note No. SBCR
11/1/2716/80 dated July 9, 1997 to the Philippine Consulate General in Hong Kong to
inquire on which agency of the Philippine Government should handle a request for
extradition under the RP-HK Agreement. The Philippine Consulate General replied
through Note No. 78-97 dated October 16, 1997 that the proper agency was the
Department of Justice (DOJ). 7 On September 13, 1999, therefore, the DOJ received the
request for the provisional arrest of Muñoz pursuant to Article 11 (1) of the RP-HK
Agreement. On September 17, 1999, the National Bureau of Investigation (NBI), acting
for and in behalf of HKSAR, initiated the proceedings for his arrest in the RTC, whose
Branch 19 then issued on September 3, 1999 the order granting the application for the
provisional arrest of Muñoz. Branch 19 consequently issued the corresponding order of
arrest. On October 14, 1999, Muñoz challenged through certiorari, prohibition and
mandamus the validity of the order for his arrest in the CA, which declared the order of
arrest null and void in its judgment promulgated on November 9, 1999. DOJ Secretary
Sera n R. Cuevas consequently appealed the decision of the CA to this Court, which
reversed the CA on December 18, 2000 in Cuevas v. Muñoz, 8 disposing:
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 WHEREFORE, the petition is GRANTED, and the assailed Decision of the
Court of Appeals, dated November 9, 1999, in CA-G.R. SP No. 55343 is hereby
REVERSED and SET ASIDE. Respondent's "Urgent Motion for Release Pending
Appeal" is hereby DENIED.
SO ORDERED.
Meantime, on November 22, 1999, 9 the DOJ, representing the HKSAR, led a
petition in the RTC for the surrender of Muñoz to the HKSAR to face the criminal
charges against him in Hong Kong. He led a petition for bail. Initially, on October 8,
2001, the RTC, through Presiding Judge Ricardo Bernardo, Jr. of Branch 10, denied the
petition for bail after hearing on the ground that there was no Philippine law that
allowed bail in extradition cases, and that he was a high " ight risk." But after the case
was re-assigned to Branch 8, presided by Judge Felixberto T. Olalia, Jr., following the
inhibition of Judge Bernardo, Jr., Muñoz led his motion for reconsideration against the
denial of his petition for bail. Granting the motion for reconsideration on December 20,
2001, 10 Judge Olalia, Jr. allowed bail to Muñoz under the conditions stated in the order
of that date. Not satis ed, the DOJ assailed the granting of bail to Muñoz as a potential
extraditee by petition for certiorari directly led in this Court. The matter of bail for
Muñoz was ultimately settled by the Court in Government of Hong Kong Special
Administrative Region v. Olalia, Jr., 11 viz.: aDSIHc

While our extradition law does not provide for the grant of bail to an
extraditee, however, there is no provision prohibiting him or her from ling a
motion for bail, a right to due process under the Constitution.
The applicable standard of due process, however, should not be the
same as that in criminal proceedings. In the latter, the standard of due process
is premised on the presumption of innocence of the accused. As Purganan
correctly points out, it is from this major premise that the ancillary presumption
in favor of admitting to bail arises. Bearing in mind the purpose of extradition
proceedings, the premise behind the issuance of the arrest warrant and the
"temporary detention" is the possibility of ight of the potential extraditee. This
is based on the assumption that such extraditee is a fugitive from justice. Given
the foregoing, the prospective extraditee thus bears the onus probandi of
showing that he or she is not a flight risk and should be granted bail.
The time-honored principle of pacta sunt servanda demands that the
Philippines honor its obligations under the Extradition Treaty it entered into with
the Hong Kong Special Administrative Region. Failure to comply with these
obligations is a setback in our foreign relations and defeats the purpose of
extradition. However, it does not necessarily mean that in keeping with its treaty
obligations, the Philippines should diminish a potential extraditee's rights to life,
liberty, and due process. More so, where these rights are guaranteed, not only by
our Constitution, but also by international conventions, to which the Philippines
is a party. We should not, therefore, deprive an extraditee of his right to apply for
bail, provided that a certain standard for the grant is satisfactorily met.
An extradition proceeding being sui generis, the standard of proof
required in granting or denying bail can neither be the proof beyond reasonable
doubt in criminal cases nor the standard of proof of preponderance of evidence
in civil cases. While administrative in character, the standard of substantial
evidence used in administrative cases cannot likewise apply given the object of
extradition law which is to prevent the prospective extraditee from eeing our
jurisdiction. In his Separate Opinion in Purganan, then Associate Justice, now
Chief Justice Reynato S. Puno, proposed that a new standard which he termed
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 "clear and convincing evidence" should be used in granting bail in
extradition cases. According to him, this standard should be lower than proof
beyond reasonable doubt but higher than preponderance of evidence. The
potential extraditee must prove by "clear and convincing evidence" that he is not
a ight risk and will abide with all the orders and processes of the extradition
court.
In this case, there is no showing that private respondent presented
evidence to show that he is not a flight risk. Consequently, this case should be
remanded to the trial court to determine whether private respondent may be
granted bail on the basis of "clear and convincing evidence."
WHEREFORE, we DISMISS the petition. This case is REMANDED to the
trial court to determine whether private respondent is entitled to bail on the basis
of "clear and convincing evidence." If not, the trial court should order the
cancellation of his bail bond and his immediate detention; and thereafter,
conduct the extradition proceedings with dispatch.
SO ORDERED. 12
Eventually, on November 28, 2006, the RTC ruled on the main case of extradition
by holding that the extradition request suf ciently complied with the RP-HK Agreement
and Presidential Decree No. 1069. 13
In due course, Muñoz elevated the adverse decision of November 28, 2006 to the
CA upon the following issues, namely: (1) the enforceability of the RP-HK Agreement,
including the HKSAR's personality to institute the petition under its current status as a
special administrative region; (2) the DOJ's authority to receive the request for
extradition and to le the petition despite Presidential Decree No. 1069 naming the
Secretary of Foreign Affairs for that purpose; (3) the extraditability of the offense,
considering the nature of the crimes charged and the pieces of evidence presented in
support of the petition; and (4) the limits of the jurisdiction of the extradition court, i.e.,
whether or not it included passing upon the defenses of the person to be extradited. 14
In its decision promulgated on August 30, 2012, 15 the CA opined that although
the People's Republic of China resumed the exercise of jurisdiction over the HKSAR,
Article 96 16 of the latter's Basic Law still empowered it to enter into international
agreements in its own name, including extradition treaties; 17 that despite the exception
made in the Joint Declaration of the Government of the United Kingdom of Great Britain
and Northern Ireland and the Government of the People's Republic of China on the
Question of Hong Kong to the effect that the HKSAR would enjoy a high degree of
autonomy, except in foreign and defense affairs that were the responsibilities of the
Central People's Government, there was a status quo as regards the laws currently in
force in Hong Kong; that Article 153 of the Basic Law explicitly provided that
international agreements to which the People's Republic of China was not a party but
which were implemented in Hong Kong could continue to be implemented in the
HKSAR; that an Exchange of Notes between the Governments of China and the
Philippines con rmed the continuous enforceability of the RP-HK Agreement; 18 that
the DOJ had the authority to receive the request for extradition by the HKSAR because
the RP-Hong Kong Agreement referred to the "appropriate authority" as would be
identi ed from time to time by one party to the other; 19 and that, as such, the reliance
by Muñoz on the provision of Presidential Decree No. 1069 that only the Secretary of
Foreign Affairs had the authority to receive requests for extradition should be rejected.
ETHIDa

The CA af rmed the RTC's conclusion that the crimes of conspiracy to defraud
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 and accepting an advantage as an agent were extraditable offenses; that not only was
conspiracy to defraud explicitly included in the offenses covered by the RP-HK
Agreement, but also that both crimes satis ed the double criminality rule, or the
principle to the effect that extradition was available only when the act was an offense in
the jurisdictions of both parties; and that it was not for the Philippine court to
determine the extent of the criminal jurisdiction of the foreign court because entering
into questions that were the prerogative of that other jurisdiction was the function of
the assisting authorities. 20
On September 14, 2012, 21 Muñoz sought the reconsideration of the August 30,
2012 decision.
On March 1, 2013, 22 the CA promulgated its assailed amended decision by
partially granting Muñoz's motion for reconsideration. Although af rming its previous
ruling, it concluded that the crime of accepting an advantage as an agent should be
excluded from the charges under which Muñoz would be tried due to non-compliance
with the double criminality rule.
After the HKSAR's motion for reconsideration was denied on May 29, 2013, 23 it
has appealed by petition for review on certiorari.
Issue
The sole issue raised by the HKSAR relates to the propriety of the CA's
conclusion that the crime of accepting an advantage as an agent did not comply with
the double criminality rule. 24
Ruling of the Court
Upon thorough consideration, we DENY the petition for review.
Extradition is "the surrender by one nation to another of an individual accused or
convicted of an offense outside of its own territory, and within the territorial jurisdiction
of the other, which, being competent to try and to punish him, demands the surrender."
25 It is not part of customary international law, although the duty to extradite exists only
for some international crimes. 26 Thus, a state must extradite only when obliged by
treaty to do so. 27 The right of a state to successfully request the extradition of a
criminal offender arises from a treaty with the requested state. 28 Absent the treaty, the
duty to surrender a person who has sought asylum within its boundaries does not
inhere in the state, which, if it so wishes, can extend to him a refuge and protection even
from the state that he has ed. Indeed, in granting him asylum, the state commits no
breach of international law. But by concluding the treaty, the asylum state imposes
limitations on itself, because it thereby agrees to do something it was free not to do. 29
The extradition treaty creates the reciprocal obligation to surrender persons from the
requested state's jurisdiction charged or convicted of certain crimes committed within
the requesting state's territory, and is of the same level as a law passed by the
Legislatures of the respective parties.
Presidential Decree No. 1069 de nes the general procedure for the extradition of
persons who have committed crimes in a foreign country, and lays down the rules to
guide the Executive Department and the courts of the Philippines on the proper
implementation of the extradition treaties to which the country is a signatory.
Nevertheless, the particular treaties entered into by the Philippine Government with
other countries primarily govern the relationship between the parties.
The RP-HK Agreement is still in full force and effect as an extradition treaty. The
procedures therein delineated regulate the rights and obligations of the Republic of the
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 Philippines and the HKSAR under the treaty in the handling of extradition requests.
For purposes of the extradition of Muñoz, the HKSAR as the requesting state
must establish the following six elements, 30 namely: (1) there must be an extradition
treaty in force between the HKSAR and the Philippines; (2) the criminal charges that are
pending in the HKSAR against the person to be extradited; 31 (3) the crimes for which
the person to be extradited is charged are extraditable within the terms of the treaty; 32
(4) the individual before the court is the same person charged in the HKSAR; 33 (5) the
evidence submitted establishes probable cause to believe that the person to be
extradited committed the offenses charged; 34 and (6) the offenses are criminal in both
the HKSAR and the Philippines (double criminality rule).
The rst ve of the elements inarguably obtain herein, as both the RTC and the
CA found. To start with, the RP-Hong Kong Agreement subsists and has not been
revoked or terminated by either parties. Secondly, there have been 10 criminal cases
led against Muñoz in Hong Kong, speci cally: three counts of accepting an advantage
as an agent and seven counts of conspiracy to defraud. 35 Thirdly, the crimes of
accepting an advantage as an agent and of conspiracy to defraud were extraditable
under the terms of the RP-Hong Kong Agreement. Fourthly, Muñoz was the very same
person charged with such offenses based on the documents relied upon by the DOJ,
and the examination and determination of probable cause by the RTC that led to the
issuance of the order for the arrest of Muñoz. And, lastly, there is probable cause to
believe that Muñoz committed the offenses charged. cSEDTC

However, it was as to the sixth element that the CA took exception as not having
been established. Although the crime of conspiracy to defraud was included among the
offenses covered by the RP-Hong Kong Agreement, and the RTC and the CA have
agreed that the crime was analogous to the felony of estafa through false pretense as
de ned and penalized under Article 315 (2) 36 of the Revised Penal Code, it was
disputed whether or not the other crime of accepting an advantage as an agent was
also punished as a crime in the Philippines. As such, the applicability of the double
criminality rule became the issue.
Under the double criminality rule, the extraditable offense must be criminal under
the laws of both the requesting and the requested states. 37 This simply means that the
requested state comes under no obligation to surrender the person if its laws do not
regard the conduct covered by the request for extradition as criminal. 38
The HKSAR de nes the crime of accepting an advantage as an agent under
Section 9 (1) (a) of the Prevention of Bribery Ordinance (POBO), Cap. 201, 39 to wit:
Section 9. Corrupt transactions with agents. —
(1) Any agent who, without lawful authority or reasonable excuse,
solicits or accepts any advantage as an inducement to or reward for or
otherwise on account of his —
(a) doing or forbearing to do, or having done or forborne to do, any
act in relation to his principal's affairs or business; or
xxx xxx xxx
A perusal of the decision of the RTC and the original decision of the CA show that
said courts determined that the crime of accepting an advantage as an agent was
analogous to the crime of corrupt practices of public of cers as de ned under Section
3 40 of Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act). In its assailed
amended decision, however, the CA reversed itself, and agreed with Muñoz to the effect
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 that Section 9 (1) (a) of the POBO referred only to private individuals, not to persons
belonging to the public sector. It revised its determination by taking into consideration
the expert opinions on the nature and attributes of the crime of accepting an advantage
as an agent tendered by Clive Stephen Grossman, Senior Counsel of the Hong Kong Bar
Association, in behalf of Muñoz, and Ian Charles McWalters, Senior Assistant Director
of Public Prosecutions in the Department of Justice of the HKSAR, testifying on behalf
of the HKSAR. Said experts shared the opinion that the POBO was a two-part statute
concerned with corruption by public of cials and corruption in the private sector. 41
However, McWalters gave the following explanation regarding the nature of the
offenses enumerated in Section 9 of the POBO, to wit:
8. A person can be guilty of a POBO bribery offense if he offers an
advantage to an agent, or being an agent, he solicits or accepts an advantage.
However, there is no mention of the word corruption, or variants of it, in these
offences. Proof of corruption comes from establishing that the advantage was
offered, solicited or accepted "as an inducement to, reward for or otherwise on
account of" the agent doing inter alia "an act in his capacity as a public servant"
(public sector bribery) or "an act in relation to his principal's affairs or business"
(private sector bribery). The private sector bribery offence is section 9 of
the POBO and its language is derived from section 1 of the United
Kingdom's Prevention of Corruption Act of 1906. 42
Based on the foregoing, the CA ultimately concluded that the crime of accepting
an advantage as an agent did not have an equivalent in this jurisdiction considering that
when the unauthorized giving and receiving of bene ts happened in the private sector,
the same was not a crime because there was no law that de ned and punished such
act as criminal in this jurisdiction. 43
We uphold the conclusion and observation by the CA.
A careful reading shows that the foreign law subject-matter of this controversy
deals with bribery in both public and private sectors. However, it is also quite evident
that the particular provision of the POBO allegedly violated by Muñoz, i.e., Section 9 (1)
(a), deals with private sector bribery — this, despite the interpretation under Section 2
of the POBO that an "agent includes a public servant and any person employed by or
acting for another." The POBO clearly states that the interpretation shall apply unless
the context otherwise requires.
It cannot be argued that Section 9 (1) (a) of the POBO encompasses both private
individuals and public servants. A Section 9 (1) (a) offense has a parallel POBO
provision applicable to public servants, to wit: 44
Private Sector Bribery Public Sector Bribery
Section 9. Corrupt transactions with Section 4. BRIBERY. — . . . .
agents. —

(1) Any agent who, without lawful
authority or reasonable excuse, solicits or
accepts any advantage as an inducement
to or reward for or otherwise on account
of his —
(a) doing or forbearing to do, or
having done or forborne to do, any
act in relation to his principal's
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(2) Any public servant who, whether in
Hong Kong or elsewhere, without lawful
authority or reasonable excuse, solicits or
accepts any advantage as an inducement
to or reward for or otherwise on account
of his — (Amended 28 of 1980 s. 3)
a. performing or abstaining from
performing, or having performed or
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 affairs or business; or abstained from performing, any act in
his capacity as a public servant;
....
shall be guilty of an offence.
Considering that the transactions were entered into by and in behalf of the
Central Bank of the Philippines, an instrumentality of the Philippine Government, Muñoz
should be charged for the offenses not as a regular agent or one representing a private
entity but as a public servant or employee of the Philippine Government. Yet, because
the offense of accepting an advantage as an agent charged against him in the HKSAR is
one that deals with private sector bribery, the conditions for the application of the
double criminality rule are obviously not met. Accordingly, the crime of accepting an
advantage as an agent must be dropped from the request for extradition. Conformably
with the principle of specialty embodied in Article 17 of the RP-HK Agreement, Muñoz
should be proceeded against only for the seven counts of conspiracy to defraud. As
such, the HKSAR shall hereafter arrange for Muñoz's surrender within the period
provided under Article 15 of the RP-HK Agreement. SDAaTC

WHEREFORE, the Court DENIES the petition for review on certiorari; and
AFFIRMS the amended decision promulgated on March 1, 2013 in CA-G.R. SP No.
88610.
No pronouncement on costs of suit.
SO ORDERED.
Velasco, Jr., Leonardo-de Castro, Peralta, Del Castillo, Perez, Mendoza, Reyes,
Perlas-Bernabe, Jardeleza and Caguioa, JJ., concur.
Sereno, C.J., I join the Dissent of J. Leonen.
Carpio, J., I join the Dissenting Opinion of J. Leonen.
Brion, * J., is on leave.
Leonen, J., I dissent. See separate opinion.
Separate Opinions
LEONEN , J., dissenting :

Respectfully, I dissent.
Under Presidential Decree No. 1069, 1 otherwise known as the Philippine
Extradition Law, extradition may be granted only under a treaty or convention. 2 In this
case, the relevant treaty is the Agreement Between the Government of the Republic of
the Philippines and the Government of Hong Kong for the Surrender of Accused and
Convicted Persons (RP-HK Agreement), which provides:
ARTICLE 2
OFFENCES
(1) Surrender shall be granted for an offence coming within any of the
following descriptions of offences insofar as it is according to the laws of both
Parties punishable by imprisonment or other form of detention for more than
one year, or by a more severe penalty;
xxx xxx xxx
(3) For the purpose of this Article, in determining whether an offence is an
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 offence punishable under the laws of both Parties, the totality of the acts or
omissions alleged against the person whose surrender is sought shall
be taken into account, without reference to the elements of the
offence prescribed by the law of the requesting Party.
(4) For the purpose of paragraph (1) of this Article, an offence shall be an
offence according to the laws of both Parties if the conduct constituting the
offence was an offence against the law of the requesting Party at the time it
was committed and an offence against the law of the requested Party at the
time the request for surrender is received. (Emphasis supplied)
Thus, a request for extradition shall be granted for certain offenses, provided that
according to the laws of both the Philippines and Hong Kong, the offense is punishable
by imprisonment or other form of detention for the duration of more than one (1) year,
or by a more severe penalty. Further, to determine whether the offense is punishable
under the laws of the Philippines and Hong Kong, the RP-HK Agreement states that "the
totality of the acts or omissions alleged against the person whose surrender is sought
shall be taken into account without reference to the elements of the offence prescribed
by the law of the requesting Party." 3
In this case, respondent is wanted for three (3) counts of the offense of
"accepting an advantage as an agent" 4 (punished by Section 9 (1) (a) of the Prevention
of Bribery Ordinance, Cap. 201) and for seven (7) counts of the offense of "conspiracy
to defraud" 5 (contrary to the Common Law of Hong Kong). 6 The three (3) charges
read substantially the same. The first charge reads:
Statement of Offence
Accepting advantage as an agent, contrary to section 9(1)(a) of the Prevention
of Bribery Ordinance, Cap. 201.
Particulars of Offence
Juan Antonio E. MUÑOZ, being an agent, namely an employee of the Bangko
Sentral ng Pilipinas, on or about the 12th day of October 1993, in Hong Kong,
without lawful authority or reasonable excuse, accepted from Ho CHI, also
known as CHI Ho, an advantage, namely a gift, loan, fee, reward or commission
consisting of a deposit of $1,020,000 United States currency into the Citiplus
Account Number 89409787 with Citibank, N.A. held in the name of the said
Juan Antonio E. MUÑOZ, as an inducement to or reward for or otherwise on
account of the said Juan Antonio E. MUÑOZ doing or having done an act in
relation to his principal's affairs or business, namely concealing the payments
relating to gold or silver dealings which were otherwise payable to or on account
of the said Bangko Sentral ng Pilipinas by Mocatta Hong Kong Limited. 7 acEHCD

The RP-HK Agreement speci cally mandates the consideration of the totality of
t h e acts or omissions alleged against the person , and further mandates not
referring to the elements of the offense prescribed by the law of the requesting party.
This is to create the greatest comity between the Philippines and Hong Kong, which, in
turn, would allow for the RP-HK Agreement to be more effective.
The rst charge against respondent alleges the following: first, that Juan Antonio
Muñoz was an employee of the Bangko Sentral ng Pilipinas; second, that he accepted
the amount of US$1,020,000.00 as a gift, loan, fee, reward, or commission; third, that
the gift was an inducement or reward for doing or having done an act in relation to the
Bangko Sentral ng Pilipinas' affairs or business; and fourth, that the act consisted of
concealing payments relating to gold or silver dealings payable to or on account of the
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 Bangko Sentral ng Pilipinas, by Mocatta Hong Kong Limited. 8
The RP-HK Agreement requires us to ask, without reference to the elements
of the offense prescribed by the law of the requesting party , whether the
totality of the acts or omissions alleged against respondent constitutes an offense
against the laws of Hong Kong. It likewise requires us to ask whether the totality of the
acts or omissions alleged against respondent constitutes an offense against the laws
of the Philippines.
Respondent's acts are corrupt practices under Section 3 (b) of Republic Act No.
3019: 9
Section 3. Corrupt practices of public of cers. — In addition to
acts or omissions of public of cers already penalized by existing law, the
following shall constitute corrupt practices of any public of cer and are hereby
declared to be unlawful:
xxx xxx xxx
(b) Directly or indirectly requesting or receiving any gift, present,
share, percentage, or bene t, for himself or for any other person, in connection
with any contract or transaction between the Government and any other party,
wherein the public officer in his official capacity has to intervene under the law.
They also appear to be an offense under Section 3 (h):
Section 3. Corrupt practices of public officers. —
xxx xxx xxx
(h) Directly or indirectly having nancial or pecuniary interest in any
business, contract or transaction in connection with which he intervenes or
takes part in his of cial capacity, or in which he is prohibited by the Constitution
or by any law from having any interest.
Thus, the totality of the acts or omissions alleged against respondent
constitutes an offense against Philippine laws.
Respondent's acts likewise constitute an offense under Section 9 (1) (a) of the
Prevention of Bribery Ordinance, Cap. 201, which punishes:
(1) Any agent who, without lawful authority or reasonable excuse, solicits or
accepts any advantage as an inducement to or reward for or otherwise on
account of his —
(a) doing or forbearing to do, or having done or forborne to do, any act
in relation to his principal's affairs or business[.]
The intent of both statutes is the same. Corruption is accepted as a bane to
good governance. Its eradication is not merely desirable; it is a necessity. Corruption
undermines the totality of government. The fair but decisive prosecution of those
responsible for the acts contributes to its effective deterrence.
Every act of corruption involves both a public of cer and a private individual or
entity. The private individual may have actively participated in conspiracy or as the
principal by inducement. It may likewise be the bene ciary of decisions made by public
of cers, and may be done primarily or solely for motives that do not redound to the
public's welfare.
The treaty clearly commands both jurisdictions not to frustrate the ends of
justice by unnecessarily truncating the acts being punished through resort to
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 conjectural technical possibilities. The letter and intent of both the treaty and our
criminal laws should be respected.
Thus, as the totality of the acts alleged against respondent is punishable under
the laws of both the Philippines and Hong Kong and is punishable by imprisonment of
more than one (1) year, surrender should be granted under Article 2 of the RP-HK
Agreement.
When the Court of Appeals dropped the charge of accepting an advantage as an
agent instead of looking at the totality of the acts alleged, it delved into the provisions
of Hong Kong law, as well as the intent behind it:
Clive Stephen Grossman, Senior Counsel of the Hong Kong Bar
Association, in behalf of respondent-appellant, explains the legislative intent
behind the enactment of the Prevention of Bribery (POB) Ordinance, which
defines the aforesaid offense, to wit:
1. The POB (Prevention of Bribery Ordinance) was promulgated in
1971 in Hong Kong to combat corruption which was then rife in the
territory. Unlike many other statutes at the time, this was not
borrowed or copied from an English statute but was created
specifically to deal with problems that then existed locally. SDHTEC

2. It is essentially a two-part statute, concerned not only with

corruption by public of cials but also with corruption in the private
sector. Both forms of corruption attract severe penalties which were
intended to eliminate, or at least reduce, endemic corruption in Hong
Kong. For that reason, many new offences were created, including
Section 9(1)(a) but, I emphasize, that this was a peculiarly home-
grown statute designed for Hong Kong conditions.
xxx xxx xxx
6. The essential elements of the offence can be gleaned from the
above. In short they are that an advantage (as de ned) must have
been accepted, without lawful authority or reasonable excuse, and it
must have been solicited or accepted as an inducement or reward
for doing any of the matters in sub-section (a) of 9(1). The offence
hits both the asker of the bribe and the giver of the bribe. . . .
xxx xxx xxx
8. I believe some countries have enacted statutes based on our POB
but apart from those, I am unaware of any countries which have
statutory provisions which mirror Section 9(1)(a).
Speaking for petitioner-appellee, on the other hand, Ian Charles
McWalters, Senior Assistant Director of Public Prosecutions in the Department
of Justice of the HKSAR, explains the nature of the offenses enumerated in
Section 9 of the POB, viz.:
8. A person can be guilty of a POBO bribery offence if he
offers an advantage to an agent, or being an agent, he solicits or
accepts an advantage. However there is no mention[ ]of the word
corruption, or variants of it, in these offences. Proof of corruption
comes from establishing that the advantage was offered, solicited
or accepted "as an inducement to, reward for or otherwise on
account of" the agent doing inter alia "an act in his capacity as a
public servant" (public sector bribery) or "an act in relation to his
principal's affairs or business" (private sector bribery). The private
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 sector bribery offence is section 9 of the POBO and its language is
derived from section 1 of the United Kingdom's Prevention of
Corruption Act of 1906.
Clearly then, both parties are in congruence that the crime of accepting
an advantage as an agent in Section 9 of HKSAR's POB penalizes the
unauthorized giving and receiving of bribes or other bene ts as a result of
acting in behalf of one's principal. In our jurisdiction, when such happens in the
private sector as is alleged in the instant case, the same is not a crime as no law
de nes and punishes such act. Nullum crimen nulla poena sine lege. There is
no crime where there is no law punishing it. Hence, this crime does not satisfy
the double criminality requirement in extradition proceedings. 10 (Emphasis in
the original)
However, there is no question that Hong Kong law punishes the acts alleged
against respondent. Consequently, under the RP-HK Agreement, the legislative intent
behind the enactment of the Prevention of Bribery Ordinance is irrelevant in determining
whether the offense is extraditable.
Further, although the Court of Appeals maintained that the unauthorized giving
and receiving of bribes was "alleged" to have happened in the private sector, a close
reading of the acts alleged in the rst charge reveals no mention of the private sector.
Thus, the Court of Appeals went inappropriately beyond the allegations in the charges
and proceeded to go into the merits of the case led in Hong Kong. In essence, it
predicted the evidence, weighed it as a conjecture, and rendered a judgment of fact for
Hong Kong.
This violates the basic principles of international comity and due process.
Therefore, the Court of Appeals gravely abused its discretion.
However, the ponencia, in light of the testimony of the Senior Assistant Director
of Public Prosecutions of the Hong Kong Department of Justice, ruled that the law used
to charge respondent only applies to private sector bribery. It expressly declared that
Section 9 of the Prevention of Bribery Ordinance of Hong Kong applies solely to private
sector bribery, thus:
It cannot be argued that Section 9(1)(a) of the [Prevention of Bribery
Ordinance] encompasses both private individuals and public servants. A Section
9(1)(a) offense has a parallel [Prevention of Bribery Ordinance] provision
applicable to public servants, to wit:
xxx xxx xxx
Considering that the transactions were entered into by and in behalf of
the Central Bank of the Philippines, an instrumentality of the Philippine
Government, Muñoz should be charged for the offenses not as a regular agent
or one representing a private entity but as a public servant or employee of the
Philippine Government. Yet, because the offense of accepting an advantage as
an agent charged against him in HKSAR is one that deals with private sector
bribery, the conditions for the application of the double criminality rule are
obviously not met[.] 11
To repeat, under treaty, this Court should not analyze the elements of the offense
prescribed by Hong Kong law. It is enough that the acts alleged against respondent
constitute an offense against the laws of the Philippines and the laws of Hong Kong.
Nonetheless, in light of the ponencia, we point out that the Hong Kong Court of Final
Appeal has already settled that the term "agent" in Section 9 of the Prevention of
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 Bribery Ordinance also covers public servants in another jurisdiction. In B v. The
Commissioner of the Independent Commission Against Corruption, 12 the Hong Kong
court explains: AScHCD

2. This appeal is concerned with what the legal position would be if a bribe
is offered in Hong Kong to a public of cial of a place outside Hong Kong.
Before turning to the questions of law which arise, it is necessary to note the
terms of the relevant statutory provisions, mainly of the Prevention of Bribery
Ordinance, Cap. 201 ("the POBO").
xxx xxx xxx
5. Then one turns to what it is provided that the expressions "public body"
and "public servant" mean. And it will be seen that they are con ned to Hong
Kong public bodies and Hong Kong public servants. It is to be noted, however,
that s.2(1) does not say what the words "agent" and "principal" mean. Rather
does it say what they include. So their de nitions are inclusive and not
exhaustive.
xxx xxx xxx
8. Three questions of law arise. They may be stated thus:
(1) Where an advantage is offered in Hong Kong, does s.9(2)
of the POBO apply even if the offeree is a public of cial of a place
outside Hong Kong and the act or forbearance concerned is in
relation to his public duties in that place outside Hong Kong?
xxx xxx xxx
First question answered in the affirmative
xxx xxx xxx
19. On an ordinary reading, a public of cial of a place outside Hong Kong
comes within the phrase "any person employed by or acting for another" in the
de nition of "agent" provided by s.2(1) of the POBO. Also on an ordinary
reading, his public duties in that place come within the phrase "in relation to his
principal's affairs" to be found in s.9(2) of the POBO. So on an ordinary reading
of the relevant statutory provisions, the answer to the rst question of law is
"Yes". In other words, where an advantage is offered in Hong Kong, s.9(2) of the
POBO does apply even if the offeree is a public of cial of a place outside Hong
Kong and the act or forbearance concerned is in relation to his public duties in
that place outside Hong Kong.
xxx xxx xxx
22. So I answer the rst question in the af rmative. In other words, I hold
where an advantage is offered in Hong Kong, s.9(2) of the POBO applies even if
the offeree is a public of cial of a place outside Hong Kong and the act or
forbearance concerned is in relation to his public duties in that place outside
Hong Kong. 13
Another reason why an extradition treaty requires that courts take into
consideration the totality of circumstances, and not the elements of the offense, is that
courts cannot be expected to be experts in the other jurisdiction's jurisprudence. A
misinterpretation of Hong Kong's laws by a Philippine court will, indeed, be fraught with
danger that could have been avoided.
ACCORDINGLY , I vote to GRANT the Petition.

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 Footnotes
* On leave.

1. G.R. No. 140520, December 18, 2000, 348 SCRA 542.

2. G.R. No. 153675, April 19, 2007, 521 SCRA 470.

3. CA rollo, pp. 97-120.

4. Rollo, pp. 20-26; penned by Associate Justice Hakim S. Abdulwahid (retired), and concurred
in by Associate Marlene Gonzales-Sison and Associate Justice Edwin D. Sorongon.
5. Id. at 28-30.

6. CA rollo, pp. 224-228.

7. Id. at 228.

8. Supra note 1.

9. Rollo, p. 10.
10. Id.

11. Supra note 2.

12. Id. at 486-488.

13. CA rollo, p. 230.

14. Id. at 234.

15. Id. at 223-253.

16. Basic Law, Article 96 — With the assistance or authorization of the Central People's
Government, the Government of the Hong Kong Special Administrative Region may
make appropriate arrangements with foreign states for reciprocal juridical
assistance.
17. CA rollo, p. 238.

18. Id. at 238-239.

19. Article 8. THE REQUEST AND SUPPORTING DOCUMENTS. (1) Requests for surrender and
related documents shall be conveyed through the appropriate authority as may be
notified from time to time by one Party to the other.

20. CA rollo, pp. 252-253.

21. Rollo, p. 11.

22. Supra note 4.

23. Supra note 5.

24. Id. at 11.

25. Terlinden v. Ames, 184 U.S. 270, 289 (1902).

26. Bassiouni, International Extradition: United States Law and Practice, 2d Rev. Ed. (1987), p.
319.
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 27. Factor v. Laubenheimer, 290 U.S. 276, 287 (1933).

28. See United States v. Rauscher , 119 U.S. 407, 411-412 (1886), where the Supreme Court of
the United States of America, per J. Miller, observed:
. . . It is only in modern times that the nations of the earth have imposed upon
themselves the obligation of delivering up these fugitives from justice to
the states where their crimes were committed for trial and punishment.
This has been done generally by treaties made by one independent
government with another. Prior to these treaties and apart from them, it may be
stated as the general result of the writers upon international law that there was no
well de ned obligation on one country to deliver up such fugitives to another, and
within the discretion of the government whose action was invoked, and it has never
been recognized as among those obligations of one government toward another
which rest upon established principles of international law. (bold underscoring
supplied for emphasis)
29. United States v. Mulligan, 74 F. 2d 220 (2d Cir. 1934).

30. See Offending Of cials: Former Government Actors and the Political Offense Exception to
Extradition, 94 Calif. L. Rev. 423 (March 2006).

31. Article 1. OBLIGATION TO SURRENDER. The Parties agree to surrender to each other,
subject to the provisions laid down in this Agreement, any person who is found in the
jurisdiction of the requested Party and who is wanted by the requesting Party for
prosecution or for the imposition or enforcement of a sentence in respect of an
offence described in Article 2 of this Agreement.

32. Article 2. OFFENCES. (1) Surrender shall be granted for an offence coming within any of
the following descriptions of offences insofar as it is according to the laws of both
Parties punishable by imprisonment or other form of detention for more than one
year, or by a more severe penalty;

xxx xxx xxx

(xiii) offences against the laws relating to fraudulent activities; obtaining property, money,
valuable securities or pecuniary advantage by false pretenses or deception;
embezzlement; conspiracy to defraud ; false accounting;

xxx xxx xxx

(3) For the purpose of this Article, in determining whether an offence is an offence
punishable under the laws of both Parties, the totality of the acts or omissions
alleged against the person whose surrender is sought shall be taken into account,
without reference to the elements of the offence prescribed by the law of the
requesting Party.
(4) For the purpose of paragraph (1) of this Article, an offence shall be an offence according
to the laws of both Parties if the conduct constituting the offence was an offence
against the law of the requesting Party at the time it was committed and an offence
against the law of the requested Party at the time the request for surrender is
received. (italics supplied for emphasis)
33. Article 8. THE REQUEST AND SUPPORTING DOCUMENTS. . . .

(2) The request shall be accompanied by:

(a) as accurate a description as possible of the person sought, together with any other
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 information which would help to establish that person's identity, nationality and
location;

xxx xxx xxx

34. Article 4. BASIS FOR SURRENDER. A person shall be surrendered only if the evidence be
found suf cient according to the law of the requested Party either to justify the
committal for trial of the person sought if the offence of which that person is
accused had been committed in the territory of the requested Party or to prove that
the person sought is the person convicted by the courts of the requesting Party.

35. Rollo, p. 10.

36. Art. 315. Swindling (estafa). . . .

2. By means of any of the following false pretenses or fraudulent acts executed prior to or
simultaneously with the commission of the fraud:
(a) By using ctitious name, or falsely pretending to possess power, in uence,
quali cations, property, credit, agency, business or imaginary transactions, or by
means of other similar deceits. (emphasis ours)
xxx xxx xxx
37. Bassiouni, note 26, at 324.

38. Id. at 325-326.

39. http://www.legislation.gov.hk/09/eng/pdf.htm. Last accessed on August 16, 2016, 3:50

p.m.

40. Section 3. Corrupt practices of public officers. — In addition to acts or omissions of public
of cers already penalized by existing law, the following shall constitute corrupt
practices of any public of cer and are hereby declared to be unlawful: (emphasis
ours)
xxx xxx xxx

(b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or
bene t, for himself or for any other person, in connection with any contract or
transaction between the Government and any other party, wherein the public of cer
in his official capacity has to intervene under the law.

xxx xxx xxx

(h) Directly or indirectly having nancial or pecuniary interest in any business, contract
or transaction in connection with which he intervenes or takes part in his of cial
capacity, or in which he is prohibited by the Constitution or by any law from having
any interest.

xxx xxx xxx

41. Rollo, p. 24.

42. Id.

43. Id. at 25.

44. Supra note 39.

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 LEONEN, J., dissenting:

1. Prescribing the Procedure for the Extradition of Persons Who Have Committed Crimes in a
Foreign Country (1977).

2. Pres. Decree No. 1069 (1977), sec. 3.

3. Pres. Decree No. 1069 (1977), art. 2.

4. Rollo, p. 11, Petition.

5. Id.
6. Id.

7. Id. at 15.

8. Id. at 11.
9. Anti-Graft and Corrupt Practices Act (1960).

10. Rollo, pp. 23-25, Court of Appeals Decision.

11. Ponencia, p. 14.

12. B v. Comm. of the Independent Commission Against Corruption, [2010] 13H.K.C.F.A.R. 1
<http://legalref.judiciary.gov.hk/lrs/common/search/search_result_detail_frame.jsp?
DIS=69505&QS=%2B&TP=JU> (visited April 1, 2016).
13. Id.

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