Balintang Channel Incident report

By: 11 years ago

This is the Executive Summary and full report on the incident that occurred in the Balintang Channel on May 9, 2013, which involved an encounter between members of the Philippine Coast Guard and fishermen from Taiwan. This report was submitted by the Department of Justice.

Source: Official Gazette

Executive Summary

The Incident

On May 9, 2013, a shooting incident took place involving patrolling personnel of the Philippine Coast Guard (PCG) and the Bureau of Fisheries and Aquatic Resources (BFAR) on board BFAR MCS-3001 and a Taiwanese fishing vessel at Balintang Channel near the Batanes group of islands. The incident resulted in the death of a Taiwanese fisherman.

PCG-BFAR Account

Philippine government vessel BFAR MCS-3001, with a complement of 17 PCG personnel and 3 BFAR staff, departed Port Irene, Sta. Ana, Cagayan to conduct a sea-borne monitoring, control and surveillance operation at the vicinity of Balintang Channel en route to Batanes. While on patrol, the PCG-BFAR sighted two (2) typical Taiwanese fishing vessels, one nautical mile apart from each other, bearing no flag of nationality. The PCG-BFAR announced its presence to the smaller of the two Taiwanese fishing vessels and signaled the same to stop for the conduct of proper boarding procedures. The Taiwanese vessel did not comply and instead performed evasive maneuvers.

The PCG-BFAR pursued the Taiwanese vessel, firing warning shots to further alert it to stop. The Taiwanese vessel still did not comply, but instead attempted to ram the PCG patrol craft on several occasions. The PCG then fired at the engine section of said vessel in order to stop its engines and immobilize the vessel. The Taiwanese fishing vessel still did not stop.

The PCG-BFAR then spotted a gray colored vessel approximately eight to ten NM from the north approaching the vicinity of the incident. The PCG-BFAR “radio challenged” the gray vessel but no reply was received. The PCG decided not to verify further the identity of the gray ship for security reasons. With the Taiwanese vessel still resisting pursuit and with an unidentified gray vessel approaching, the PCG-BFAR decided to disengage and abort the mission, returning to Port Irene, Sta. Ana, Cagayan.

Taiwanese Fishermen Account

Taiwanese fishing vessel Guang Da Xing No. 28 (CT2-6519) departed from the port of Liu Qui with four occupants to catch tuna. On May 9, 2013, at 12:00 A.M., they started pulling in and collecting their fishing line. At around 9:30 A.M., as they were about to return to Taiwan while traveling at low speed heading toward the east and within Taiwan territorial waters, the boat captain noticed a Philippine vessel fast approaching to his right side. The said vessel did not make any whistle or warning broadcast.

The fishing vessel was travelling slowly when the Philippine vessel overtook and approached the fishing vessel’s left rear side. The Taiwanese crew then heard gunshots so the boat captain increased speed, put his vessel on autopilot, and placed the throttle at full speed to escape. The crew went down to hide in the engine room located directly underneath the driver’s seat in the middle of the vessel. They just heard intermittent sound of gunshots as the Philippine vessel chased them.

After about 30 minutes of being chased, one of the fishermen stood up, stepped on a piece of wood, and stuck his head out to see the Philippine vessel chasing them. A bullet hit his neck causing his immediate death.

After the attack, the Taiwanese crew noticed that their vessel’s steering rudder hydraulic oil was depleted after it was damaged by a gunshot. The Taiwanese crew radioed for help and a ship came and towed their vessel back to Taiwan.

Philippine Jurisdiction over the Incident

The incident happened approximately 40 nautical miles from the country’s baselines and within its 200 nautical miles EEZ. The incident thus transpired within waters over which the Philippines exercises jurisdiction and sovereign rights.

Philippine domestic penal law is applicable to the incident that had taken place within its EEZ.

Article 2 of the Revised Penal Code also provides for the application of its provisions not only within the Philippine Archipelago, including its atmosphere, its interior waters and maritime zone, but also outside of its jurisdiction, against those who should commit an offense while on a Philippine ship or airship or, while being public officers or employees, should commit an offense in the exercise of their functions.

Ballistics Report

The firearms used in the incident are the following:

Type of Firearm

Serial No.
Browning .30 cal. Machine Gun 489066
Colt M-16 Assault Rifle 9063992
Elisco M-16 Assault Rifle RP15637, RP015498, RP204217RP194339, RP217716, RP018778RP128640
Springfield M-14 rifle 5006
Winchester M-14 rifle 1037894
US M-14 608863, 1362663, 137231613995549

The NBI investigating team went to the Firearms Section of the Criminal Investigation Bureau of Taiwan to conduct “cross-matching examination” of the evidence bullets in the custody of the Taiwanese authorities and the “test bullets” fired from various evidence firearms turned over by the PCG to the NBI.

Taiwanese authorities had in their possession eleven (11) fragments, one (1) ogive and four (4) bullets which were all placed in nine (9) sealed brown envelopes. Examinations on the bullet specimens with markings “2-2” and “52”, the same bullet that killed Taiwanese fisherman HONG SHI-CHENG, gave positive results to one (1) Springfield cal. 7.62 mm, M-14 Rifle with Serial No. 5006. This conclusion was based on the Taiwanese forensic results of the DNA examination conducted on the bullet recovered in the engine room. The DNA from the tissue samples recovered from the said bullet matched that of HONG SHI-CHENG.

The Springfield M-14 rifle, Caliber 7.62 mm with SN-5006 was used by SN1 Edrando Quiapo Aguila of BFAR MCS-3001. SN1 Aguila identified and admitted that he carried and used the long firearm described as M14 Rifle with Butt No. 21, Serial No. 5006 during the shooting incident. He further alleged that he fired the said firearm three (3) times, once at the sea and twice at the hull of the Taiwanese fishing vessel, where the engine room is located.

Forensic Chemistry Report

Microscopic and chemical examinations made on the swabbing obtained from the barrel of six (6) M14 rifles (including SN 5006) four (4) M16 rifles, and one (1) Browning machine gun, gave positive results for the presence of nitrites, nitrates, black particles and soot. Comparative examinations made on the swabbing of the barrels of all the aforesaid firearms after their test firing showed that they could have been fired within one (1) week prior to the date of examinations conducted on May 15, 2013.

Ocular inspection of Taiwanese fishing vessel Guang Da Xing No. 28 showed a total of 45 perforations, with most (21) found on the outside portion of the port side. Examinations made on the swabbing on the areas immediately surrounding the perforations gave negative results for the presence of gunpowder nitrates. Based on these findings, the approximate distance of firing could be beyond 36 inches.

Based on the forensic chemistry examination conducted on Taiwanese fishing vessel Guang Da Xing No. 28, there were no signs of ramming.

Autopsy Report

The NBI Medico-Legal Officer substantially concurs with the findings made by the Forensic Pathologist of Taiwan on the following: [1] cause of death; [2] size and location of the entry and exit wounds sustained by the deceased; [3] the possible firearm that inflicted the injury, considering the size of entry/exit wounds and extent of damage on the body; and [4] the trajectory of the bullet that caused the injury considering the location of entry and exit wounds.

Analysis and Findings

There is inconclusive proof of an imminent or grave threat to the PCG posed by the Taiwanese vessel. This inconclusiveness in the evidence establishes the presumptive culpability of the concerned PCG personnel in the killing of the Taiwanese fisherman.

The PCG Rules of Engagement (ROE) provides that deadly force should only be used when there is imminent or grave threat to life. The use of deadly force is only for self-defense and to disable the target vessel or the offending crew members and not to cause serious bodily harm or death.

The PCG validly considered the Taiwanese fishing vessel a hostile watercraft, as defined in the PCG Rules of Engagement, when it refused to stop, but instead increased speed, and attempted to escape. However, considering a vessel as hostile does not automatically authorize the use of deadly force. There must be imminent or grave threat to life posed by the hostile vessel.

The imminent and grave threat to life allegedly came from several attempts of the Taiwanese vessel to ram the patrol craft. However, this cannot be conclusively established from the evidence gathered, including the video footages. Therefore, justification for the use of deadly force cannot also be conclusively inferred from the evidence.

The statements of the Taiwanese captain do not foreclose the plausibility of the PCG account that he attempted to ram the PCG vessel, given certain factual inconsistencies which indicate his intention to lure the PCG vessel into a cat and mouse chase.

Hong Yu Zhi was not entirely candid in his sworn statements made before the Taiwan Prosecutor’s Office earlier in the investigation, when he knowingly concealed the incident where he stopped his fishing boat and pretended to submit to boarding by the PCG.

Hong Yu Zhi claims that after stopping, he decided to full throttle forward and escape again after getting scared of the gunfire. However, it is clear from the video footage that when the fishing boat decided to stop apparently to allow itself to be boarded, no more shots were being fired by the PCG.

This raises the possibility that Hon Yu Zhi feigned surrender in an effort to trick the patrol craft to get closer to it. For what purpose it is not readily apparent. It could have been for purposes of eventually ramming the patrol craft, as alleged by the PCG.

The finding on the attempted ramming is inconclusive, because the actuations of the Taiwanese captain do not foreclose an intention on his part to ram the patrol craft, given the evasive trick he used of pretending to stop and be boarded, only to suddenly speed off, putting said patrol craft in a compromising, if not dangerous position.

Despite these statements and actuations of the Taiwanese captain which tend to highlight his deceptive maneuvers designed to lure the PCG into a compromising position and therefore raise doubts on his credibility, the same are not still sufficient to establish a clear showing of imminent and grave threat to the PCG which the latter has the burden of proving.

The defenses available to the PCG under the Revised Penal Code are self-defense, obedience to a lawful order, fulfillment of official duty, and mistake of fact. In the absence of categorical and incontrovertible evidence establishing these justifying circumstances during the investigation, the burden of proof is on the PCG to establish the same during the preliminary investigation or trial proper.

There is inconclusive proof of facts establishing the necessity for self-defense. This inconclusiveness therefore cannot exonerate the PCG crew from criminal liability at this early phase of the criminal prosecution process.

The claim of obedience to a lawful order could not be given indisputable credence in the absence of any conclusive proof on the attempted ramming, so as to establish obedience to a lawful order subsequent to a justified act of using deadly force in self-defense.

The justifying circumstance of lawful fulfillment of duty remains disputable because of the absence of clear and categorical evidence that the order to use deadly force was made in accordance with the ROE, and therefore, lawful.

Where doubt exists as to the viability and indisputability of the justifying circumstances, law enforcers and investigators are mandated to file the necessary complaint, as it is not within their authority to either determine probable cause or exonerate the offenders altogether. Both acts are within the authority of either the public prosecutor or the trial court to perform, not of the investigator.

The offense committed by the PCG crew who fired their weapons at the Taiwanese fishing vessel is homicide.

All the elements of homicide are present, to wit: a) a person is killed; b) the person responsible did the killing without any justification; c) the person had the intention to kill, which is presumed; and, d) the killing was not attended by any qualifying circumstances of murder or by that of parricide or infanticide.

The finding of homicide is supported by jurisprudence in Salvador E. Yapyuco, et al. vs. Honorable Sandiganbayan and People of the Philippines (G.R. Nos. 120744-46, 122677 and 122776, June 25, 2012), where PNP personnel in pursuit of an escaping vehicle fired at the tires to disable the vehicle, instead killing an occupant of the vehicle. The Supreme Court, in the Yapyuco case, said that “[i]f the victim dies because of a deliberate act of the malefactors, intent to kill is conclusively presumed.”  While the case of Yapyuco may not appear to be identical in all material aspects with the present case, it is still instructive on the nature of the liability of law enforcers who inflict bodily harm or death on suspected offenders without sufficient evidence of aggression coming from the latter so as to justify the use of deadly force.

Yapyuco states that in “crimes of personal violence, the law looks particularly at the material results following the unlawful act, and therefore holds the aggressor liable for the consequences thereof”, though they may be graver and different from the ones actually intended by the offenders.

The eight (8) PCG personnel who fired their guns are liable for homicide because a) the victim died from a gunshot wound inflicted by the PCG; b) the claim of self-defense raised is unsubstantiated; and c) the absence of self-defense makes the act of firing unlawful.

The following PCG personnel appear to be culpable for the crime of homicide when they fired their weapons at the Taiwanese fishing vessel causing the death of a Taiwanese fisherman:

1.    Commanding Officer ARNOLD DELA CRUZ,

2.    SN1 EDRANDO QUIAPO AGUILA,

3.    SN1 MHELVIN A. BENDO,

4.    SN2 NICKY REYNOLD AURELLO,

5.    SN1 ANDY GIBB RONARIO GOLFO,

6.    SN1 SUNNY GALANG MASANGCAY,

7.    SN1 HENRY BACO SOLOMON, and

8.    PO2 RICHARD FERNANDEZ CORPUZ.

There was conspiracy among the 8 PCG personnel to execute a common design which resulted in homicide. Their collective act of ignoring the ROE makes them equally liable for the death of the Taiwanese fisherman, even if the consequences of their acts are graver than that intended.

The PCG fired more than one hundred rounds of ammunition at the fleeing Taiwanese fishing vessel, inexplicably a high volume of firepower used on an unarmed fishing vessel.

The use of deadly force regressed into indiscriminate firing during the latter part of the chase, when the fishing boat stopped evasive maneuvers in order to escape at full speed.

At the point of the indiscriminate firing, the PCG crew was no longer acting in lawful observation of the ROE. Any sensible and reasonable person is capable of discerning at that point that indiscriminate fire on a small fishing vessel will, in all likelihood, inevitably result not only in the disabling of the watercraft, but also in bodily harm or death of its occupants.

There was an attempt to cover-up the crime when the PCG men submitted a falsified Monthly Gunnery Report and spliced the video footage taken of the incident.

The crime committed is not murder because of the absence of any qualifying circumstance for murder.

In the established facts of the case, only three qualifying circumstances for murder are material: taking advantage of superior strength, evident premeditation, and treachery. All circumstances are not present.

The incident happened within the context of a legitimate maritime law enforcement operation conducted by BFAR MCS-3001, where deadly force just so happened to have been wrongfully applied.

Abuse of superior strength is not present because the PCG crew did not purposely use excessive force out of proportion to the means of defense available to the Taiwanese fishermen. The firing was made intermittently and not fully taken advantage of by the PCG personnel. The force employed was mainly aimed to disable the engine and not to maim or kill the fishermen.

The shooting incident was unplanned and unpremeditated. The enforcement action made by the PCG was part of their mandate to protect Philippine territorial waters. The provisions for firearms and firepower as a necessary tool in maritime law enforcement is unavoidable, given the “harsh” environment that is supposed to be monitored, controlled and subjected to surveillance.

There was no treachery because the attack was not sudden or unexpected. The video footage taken during the incident belied the allegations of the crew of the Taiwanese fishing vessel that they were just fired upon instantaneously and without warning. A reasonable number of continuous announcements made in the PA system and the blowing of horn by the PCG constituted sufficient warning to the Taiwanese fishermen of the eventual attack.

Certain PCG officers and men are also liable for obstruction of justice when they tampered with material evidence in the investigation.

The PCG executive officer of BFAR MCS-3001 ordered the splicing of the video footage taken of the incident. This constitutes destruction and suppression of record or document with intent to impair its verity, authenticity and availability as evidence in the investigation of a criminal case.

The PCG Commander ordered the submission of a falsified monthly gunnery report to the NBI. The PCG submitted conflicting information in the two Monthly Gunnery Reports (both bearing the same date) on the number of ammunition spent by the PCG BFAR MCS-3001 unit. The first report stated that only 36 rounds of ammunition were fired during the incident, when the actual number of rounds used was 108. This constitutes the act of making and presenting a record, document or paper with the knowledge of its falsity, and with intent to affect the course of the investigation.

Recommendations

The NBI as investigating agency on the Balintang Channel incident recommends the filing of criminal complaints for homicide against the afore-named 8 PCG personnel, and obstruction of justice against 4 PCG personnel.

The criminal complaints will be filed with the appropriate public prosecutor for preliminary investigation to determine the existence of probable cause, i.e., whether or not there is sufficient evidence to engender a well-founded belief that a crime has been committed, and that any or all of the PCG personnel are probably guilty thereof.

After determining probable cause, the necessary criminal information will in turn be filed by the prosecutor with the proper court which will conduct the trial and render judgment on the guilt or innocence of the accused.

The NBI also recommends the initiation of the appropriate administrative and disciplinary proceedings against the PCG personnel.

 

EXECUTIVE REPORT [1]

1.    I.             BACKGROUND:

On 09 May 2013, a shooting incident occurred involving patrolling personnel of the Philippine Coast Guard (PCG) and the Bureau of Fisheries and Aquatic Resources (BFAR) on-board BFAR MCS-3001 and a Taiwanese fishing vessel at Balintang Channel in Batanes, which incident resulted in the death of one (1) Taiwanese fisherman, Mr. HONG SHI-CHENG. Said incident brought a state of strained relations between the Philippines and Taiwan.

II.          NAMES OF SUBJECTS/RESPONDENTS:
A.            PCG PERSONNEL

1.    Commanding Officer ARNOLD DELA CRUZ;

2.    Lieutenant Junior Grade (LTJG) MARTIN BERNABE;

3.    Seaman 1st Class (SN1) SONNY MASANGCAY;

4.    Seaman 1st Class (SN1) EDRANDO AGUILA;

5.    Engineering Officer & Supply Officer (ENS) NOEL B. RAMOS;

6.    Seaman 1st Class (SN1) DANNIEL FUNG;

7.    Seaman 1st Class (SN1) CLAR WILFRED REVIL;

8.    Seaman 1st Class (SN1) ARNOLD REYES, JR.;

9.    Seaman 1st Class (SN1) HENRY SOLOMON;

10.  Seaman 1st Class (SN1) ALVIN MAYO;

11.  Seaman 1st Class (SN1) MARVIN RAMIREZ;

12.  Seaman 1st Class (SN1) MHELVIN BENDO II;

13.  Seaman 1st Class (SN1) ANDY GIBB GOLFO;

14.  Seaman 1st Class (SN1) BENJIE AJERA;

15.  Seaman 1st Class (SN1) ROY HAVERIA INFANTE;

16.  Seaman 2nd Class (SN2) NICKY RENOLD D. AURELLO;

17.  Petty Officer 2 RICHARD F. CORPUZ.

Bureau of Fisheries and Aquatic Resources (BFAR):

1.    ARSENIO S. BANARES;

2.    JIMMY VELUYA;

3.    RONLEY ADDUN.

III. VICTIM/COMPLAINANT:

A.  HONG SHI-CHENG, married, 64 years old (at the time of his death), a Taiwanese national and a resident of No. 51-5 Jen Ai Road, Dafu Village, Liouqiu, Pintung County, Taiwan, is the deceased fisherman who died as a result of the shooting incident.

B.  HONG TZU CHIEN, daughter of the deceased who filed a murder complaint in Taiwan, is the probable private complainant in the case/s to be filed in the Philippines, as herein recommended.

IV. PROBE FINDINGS:

A. SCOPE OF THE PROBE

1.    To secure necessary details/object/testimonial/documentary pieces of evidence, in order to shed light on the Balintang channel incident;

2.    To determine probable criminal and administrative liabilities of the PCG-BFAR personnel on board BFAR MCS-3001 involved in the incident; and

3.    To investigate other matters relative to the case.

B.  PHILIPPINE JURISDICTION OVER THE INCIDENT

Historical Perspective of the National Territory Of the Philippines

Article I of the 1987 Constitution states that:

“The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty and jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimension, form part of the internal waters of the Philippines.”

Since the 1935 Constitution, the country has had a definition of its national territory. The 1935 Constitution included the definition to make the U.S. acknowledge the extent of Philippine territory and respect its integrity, and to prevent its dismemberment.

Treaty Limits:

The following treaties provide documentation on the extent of Philippine territory:

1.    Article III of the Treaty of Paris (December 10, 1898) defined the metes and bounds of the archipelago by longitude and latitude. Technical descriptions were made of the scope of the archipelago as this may be found on the surface of the earth;

2.    The US-Spain Treaty (November 7, 1900) ceded Cagayan, Sibutu and Sulu to the United States; and

3.    The US-Great Britain Treaty (January 2, 1930) ceded the Turtle and Mangsee Islands to the United States.

Determining the National Territory:

Before the ratification of the United Nations Convention on the Law of the Sea (UNCLOS), the Philippines already had statutes which governed the determination of its territorial sea as well as the extent of its exclusive economic zone:

1. Republic Act No. 3046 (An Act to Define the Baselines of the Territorial Sea of the Philippines)

This law recognized the straight baseline method in determining Philippine territory. The appropriate points of the outermost islands of the archipelago are connected with straight lines until all islands are surrounded or enclosed by the imaginary straight line. All land masses within the baselines are part of the national territory.

2. Presidential Decree No. 1599 (Establishing an Exclusive Economic Zone and for Other Purposes)

This decree recognized the Two Hundred (200) Miles Exclusive Economic Zone within which states have sovereign rights for exploration of natural resources, utilization of artificial islands, offshore terminals, preservation of marine environment, pollution control and scientific research. It allows other states’ navigation and over flight, as well as the laying of cables and pipelines. Other states are prohibited from using the zone to explore or exploit any resources, carry out search, excavation or drilling operations, conduct any research, construct any artificial islands, off-shore terminal, installation or other structure, and perform any activity contrary to or in derogation of the sovereign rights and jurisdiction as provided. In case of overlapping, common boundaries are to be determined by agreement.

3. Presidential Decree No. 1596 (Declaring Certain Area Part of the Philippine Territory and Providing for their Government and Administration)

This decree formalized the claim of the Philippines over the Kalayaan Group of Islands on the basis of “historic right, indispensable need, effective occupation and control in accordance with international law,” and making it a distinct and separate municipality of the province of Palawan.

4. The United Nations Convention of the Law of the Sea (April 30, 1982, Effective on November 16, 1994)

The UNCLOS was signed on April 30, 1982 and became effective on November 16, 1994, one year after ratification by the sixtieth (60th) state. Many of the Philippines’s proposals related to the adoption of the archipelagic doctrine were incorporated in the final draft.

Some of the significant provisions of the UNCLOS are, as follows[2]:

“Internal Waters” covers all water and waterways on the landward side of the baseline. The coastalstate is free to set laws, regulate use, and use any resource. Foreign vessels have no right of passage within internal waters.

“Territorial Waters” is the 12 nautical miles (22 kilometers; 14 miles) from the baseline, wherein the coastal state is free to set laws, regulate use, and use any resource. Vessels are given the right of innocent passage through any territorial waters, with strategic straits allowing the passage of military craft as transit passage, in that naval vessels are allowed to maintain postures that would be illegal in territorial waters.

“Innocent passage” is defined as passing through waters in an expeditious          and continuous manner, which is not “prejudicial to the peace, good order or the security” of the coastal state.Fishing, polluting, weapons practice, and spying are not “innocent”, and submarines and other underwater vehicles are required to navigate on the surface and to show their flag.

“Archipelagic Waters” are waters inside the baseline. A baseline is drawn between the outermost points of the outermost islands, which points being sufficiently close to one another. The state has full sovereignty over these waters (like internal waters), but foreign vessels have right of innocent passage through archipelagic waters (like territorial waters).

“Contiguous Zone” is the 12 nautical mile zone (22 km) after the 12 nautical miles (22 km) limit from the territorial sea baseline limit, in which a state can continue to enforce laws in four (4) specific areas, namely, customs, taxation, immigration and pollution, if the infringement started within the state’s territory or territorial waters, or if this infringement is about to occur within the state’s territory or territorial waters.  This makes the contiguous zone a hot pursuit area.

“Exclusive Economic Zones” (EEZs) extend from the edge of the territorial sea out to 200 nautical miles (370 kilometers; 230 miles) from the baseline. Within this area, the coastal nation has sole exploitation rights over all natural resources. In casual use, the term may include the territorial sea and even the continental shelf. The EEZs were introduced to halt the increasingly heated clashes over fishing rights, although oil was also becoming important. Foreign nations have the freedom of navigation and over flight, subject to the regulation of the coastal states.

“Continental Shelf” is the natural prolongation of the land territory to the continental margin’s outer edge, or 200 nautical miles (370 km) from the coastal state’s baseline, whichever is greater. A state’s continental shelf may exceed 200 nautical miles (370 km) until the natural prolongation ends. However, it may never exceed 350 nautical miles (650 kilometers; 400 miles) from the baseline; or it may never exceed 100 nautical miles (190 kilometers; 120 miles) beyond the 2,500 meter isobaths (the line connecting the depth of 2,500 meters). Coastal states have the right to harvest mineral and non-living material in the subsoil of its continental shelf, to the exclusion of others. Coastal states also have exclusive control over living resources “attached” to the continental shelf, but not to creatures living in the water column beyond the EEZ.

Based on the map below,[3] the above disquisition is further illustrated:

The second map below would show that the incident transpired within the Philippine’s Two Hundred (200) Nautical Miles Exclusive Economic Zone (EEZ).

5. Republic Act No. 9522 (An Act to Amend Certain Provisions    of Republic Act No. 3046, As Amended By Republic Act No. 5446, To Define The Archipelagic Baseline Of The Philippines And For Other Purposes)

Sections 1 and 2 provide for the baselines of the Philippine archipelago and the extent of its territory. The exercise of sovereignty and jurisdiction over the “Regime of Islands” under the Republic of the Philippines is consistent with Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS):

  1. The Kalayaan Island Group as constituted under Presidential Decree No. 1596; and
  2. Bajo de Masinloc, also known as Scarborough Shoal.

Note:  This recent legislation defining the baselines of the Philippine archipelago is in accordance with the provisions of UNCLOS, which among others had set EEZs of coastal states within 200 nautical miles from its baselines. The above coordinates are in accordance with the world geodetic system (WGS) of 1984.

The main question now, which begs attention, is whether or not Philippine domestic laws can apply on the EEZ?

The Department of Foreign Affairs (DFA), through Atty. HENRY S. BENSURTO, Senior Special Assistant, Office of the Undersecretary for Policy, rendered upon request an opinion[4] dated 24 May 2013, stating that the incident occurred during the law enforcement activity of BFAR MCS-3001within the 200 nautical miles EEZ of the Philippines.[5] Under UNCLOS, the Philippines has the exclusive sovereign rights to explore, exploit, conserve and manage marine resources within the EEZ.[6] The incident happened approximately 40 nautical miles from the country’s baselines.Without a doubt, the incident transpired within the waters over which the Philippines exercises jurisdiction and sovereign rights.

The national or domestic law applicable in terms of enforcement activity is the Philippine Fisheries Code of 1998 (Republic Act No. 8550), specifically Section 87[7] thereof.

The foregoing law is an operationalization of the Philippine policy embodied in the Philippine Constitution and reiterated in the Philippine Fisheries Code, to wit: “The State shall protect the nation’s marine wealth in its exclusive archipelagic waters, territorial sea, and EEZ, and reserve its use and enjoyment exclusively to Filipino citizens.”[8]

The jurisdiction of the PCG in fisheries enforcement is likewise provided for under the Fisheries Code, specifically Section 124 thereof.[9]

Atty. Bensurto further cited several relevant laws regarding law enforcement as an “expression of the sovereignty of the State within its territory and of its sovereign rights and jurisdiction within its contiguous zone, exclusive economic zone and continental shelf.”[10]  “Enforcement” also refers to the process of compelling compliance with rules set out in an international agreement.[11] It aims to compel States to comply with the agreements that the said States entered into.[12]

Moreover, he cited the rights and duties of the coastal state in the EEZ as provided for in Article 56 of the UNCLOS. In sum, the UNCLOS accords a coastal State the sovereign rights to explore and exploit the resources in its EEZ. Jurisdiction in the EEZ applies to: (1) the establishment and use of artificial islands, installations and structures; (2) marine scientific research; and (3) the protection and preservation of the marine environment.[13]The UNCLOS and the corresponding domestic laws provide the basis for the enforcement power of a coastal State with respect to fisheries. However, due regard should also be accorded to the rights and duties of other coastal States.[14]

Article 73 of the UNCLOS identifies “coastal enforcement power”, which consists of boarding, inspection, arrest and judicial proceedings.[15]It also requires States to promptly release vessels and crews upon posting of reasonable bond.[16] It states that imprisonment or any form of corporal punishment should not be considered as sanctions for fisheries violations.[17]

Lastly, it requires arresting States to promptly notify the flag States of the vessels that are apprehended.[18]

In the same vein, PROFESSOR HARRY L. ROQUE, JR., Director for the Institute of International Legal Studies of the University of the Philippines College of Law (UP Law-IILS), opined that THE EEZ IS NOT SUSCEPTIBLE TO ENFORCEMENT BY A COASTAL STATE OF FULL CRIMINAL JURISDICTION UNDER INTERNATIONAL LAW.[19]

According to him, however, a variety of jurisdictions – all involving less than full sovereignty – apply in the contiguous zone and in the EEZ under Art. 56 of the UNCLOS, including sovereign rights over living and non-living marine resources but none of these involve the jurisdiction of a coastal state to prosecute an ordinary crime of murder or homicide occurring in the EEZ and allegedly committed by a properly marked government vessel of which the coastal state is not the Flag State itself.[20]

He further opined that the BFAR vessel and crew are covered by State Immunity. With certain exceptions, Art. 32 of the UNCLOS recognize immunities of warships and other government ships operated for non-commercial purposes.  BFAR MCS-3001, while certainly not a warship, has been recognized by Taiwan itself to be a Philippine government ship operated for non-commercial purposes. As such, it is protected by the principle of state immunity. Being a government vessel, and its crew being agents of the Philippine state, its acts are considered acta jure imperii, or sovereign acts of state, and in pursuance of the Philippine state’s sovereignty. This principle of state immunity, as applied to the Philippine maritime patrol vessel, is a matter of customary international law binding upon all nations.[21]

It is submitted that the enforcement action commenced by the PCG and BFAR is, therefore, in harmony with their mandate to protect the sovereign rights of the country regarding the utilization of the resources within its EEZ.

The BFAR, under the Department of Agriculture (DAR), is mandated under Sec. 14 [22]of R.A. 8550 (Philippine Fisheries Code of 1998) to coordinate with agencies – such as the Philippine Navy, the PCG, Philippine National Police (PNP), PNP-Maritime Command, law enforcement officers of the LGUs and other government enforcement agencies – to ensure that the fisheries and aquatic resources in the Philippine waters[23] are judiciously and wisely utilized and managed on sustainable basis.

To achieve its goal, a nationwide monitoring, control and surveillance is carried out; thus, a partnership (through Memoranda of Agreement [MOAs])[24] was forged with the PCG, an armed and uniformed service, primarily tasked to enforce laws within Philippine waters, conducting maritime security operations, safeguarding life and property at sea, and protecting the marine environment and resources, similar to coast guards around the world having such basic functions as maritime law enforcement and border control[25].

In the conduct of nationwide monitoring, control and surveillance, the BFAR-PCG are enforcing the provisions of Sections 87, 88 and 89 of R.A. 8550, which proscribe poaching in Philippine waters, fishing through explosives, noxious or poisonous substance and/or electricity and use of fine mesh net.

Given the above-cited legal bases, we reach the conclusion that the maritime law enforcement operation conducted against the Taiwanese fishing vessel was validly carried out by the BFAR-PCG MCS-3001 personnel.

On the question of whether domestic laws may be applied against         PCG-BFAR as regards to probable criminal, as well as administrative actions that may be initiated, it is an admitted fact that the vessel in question, BFAR MCS-3001, is a patrol vessel owned by the Philippine BFAR, but manned by PCG personnel. Its crew, who are all agents of the Philippine state, are covered by state immunity and may only be proceeded against in a criminal proceeding by a Philippine court,unless the Philippines has expressly waived such immunity. The Philippine government has not waived its immunity from suit in the case of the BFAR MCS-3001.[26]

Moreover, it is posited that Philippine domestic penal laws should be made applicable to theincident that had taken place in the EEZ.[27]

Under the UNCLOS, in cases of collision or incident on the high seas involving loss of life or serious injury or serious damage, other states may cause an inquiry to be held[28], although penal or disciplinary procedures remain basically under the jurisdiction of the flag state[29], as does also the right to arrest or detain vessels in such cases (e.g., for penal or investigative purposes).[30] The flag state and the other state are to co-operate in the conduct of any inquiry.[31] It should be emphasized that the regulations of the Convention do not affect private law and civil claims and rights[32], e.g., application in court for arrest of a ship arising from a claim for compensation for damages caused by the ship.[33]

Worth mentioning is that Article 2 of the Revised Penal Code, as amended, specifically provides for the application of its provisions not only within the Philippine Archipelago, including its atmosphere, its interior waters and maritime zone, but also outside of its jurisdiction, against those who should commit an offense while on a Philippine ship or airship or, while being public officers or employees, should commit an offense in the exercise of their functions.

On 21 May 2013, a letter-request[34] was made to the National Mapping and Resource Information Authority (NAMRIA)[35] for that office to PLOT on a chart map the following Global Positioning System (GPS) coordinates (i.e. the coordinates given by the PCG on the location of the incident). A digital plotting on the official nautical chart of NAMRIA of the plotted coordinates was made, using the Computer Aided Resource Information System (CARIS) Software, which is compliant with International Hydrographic Organization (IHO) Standard and commonly used in nautical charting.

Witnesses Commander HERBERT L. CATAPANG, Chief of Nautical Charting Division, Hydrography Department, with a rank of Commander, and Petty Officer 3 RAQUEL F. HIPONIA, Section Chief, Chart Compilation Section of the Hydrography Department, Nautical Charting Division, NAMRIA, categorically stated that “xxx as far as their knowledge of the law specifically the United Nations Convention on the Law of the Sea (UNCLOS) concerning our territorial jurisdiction is concerned, these areas mentioned in the coordinates as plotted in the official nautical chart of NAMRIA are within the Exclusive Economic Zone of the Philippines xxx.”[36]

The copy of the official nautical chart[37] of NAMRIA was furnished to the probers.

In a Sworn Affidavit dated 4 June 2013, MS. TITA CRUZ[38], current Chief of Chart Planning Section, NAMRIA, opined that, as far as her knowledge of the law, specifically the United Nations Conventions on the Law of the Sea (UNCLOS), concerning our maritime jurisdiction is concerned, “the areas mentioned in the coordinates as plotted in the official nautical chart of NAMRIA are within the Exclusive Economic Zone of the Philippines.”

Considering the foregoing discussions and considering, further, that the location of where the shooting incident happened (Balintang Channel) was not disputed by the Taiwanese fishermen,there is no doubt that the same is within the territory of the Republic of the Philippines.

C. FINDINGS:

I. THE CASE:

On the morning of May 9, 2013 while voyaging in the vicinity of Balintang Channel, the MCS-3001 crew, combined officers and personnel of the Philippine Coast Guard, hereafter referred to as “PCG”, and Bureau of Fisheries and Aquatic Resources, hereafter referred to as “BFAR”, sighted radio beacon, orange buoy markers, and two (2) suspected Taiwanese fishing vessels (small & larger vessel), without a flag hoisted therein for country identification.

The MCS-3001 crew alleged that MCS-3001 steered towards the larger vessel but the smaller vessel came near their path as if it intended to block their approach to the larger vessel. When near the smaller vessel, MCS-3001 crew presumed it to be a Taiwanese fishing vessel from the visible characters imprinted on its body and fishing paraphernalia onboard. As standard operation procedures, repeated announcements on the Public Announcement (P.A.) system, to wit: “This is the Philippine Coast Guard, Stop your vessel”, and sounding of the ship’s horn were ordered by COMMANDING OFFICER ARNOLD DELA CRUZ. However, the smaller vessel ignored the same.

Furthermore, MCS-3001 COMMANDING OFFICER ARNOLD DELA CRUZ alleged that he assumed that the smaller suspected Taiwanese fishing vessel is a hostile vessel when it maneuvered in a position to ram their vessel MCS-3001. However, MCS-3001 was able to evade this alleged hostile maneuver of the small Taiwanese fishing vessel. Warning shots were made but the smaller vessel put up a chase. COMMANDING OFFICER DELA CRUZ ordered his PCG personnel to aim and shoot their firearms at the back of the smaller vessel to immobilize the engine. If successful, boarding procedures will be conducted by the boarding team (assigned BFAR and PCG personnel). At one point in this incident, the vessel MCS-3001 came close to the suspected Taiwanese fishing vessel (side by side) wherein the MCS-3001 crew was able to ascertain that it was indeed a fishing vessel. However, said suspected Taiwanese fishing vessel maneuvered backward to break away from MCS-3001. Several gunshots were fired at the suspected Taiwanese fishing vessel but the same did not stop and the pursuit ensued which lasted for more than 1 ½ hours. When MCS-3001 crew sighted a non-Philippine vessel colored gray which did not reply to their radio message, MCS-3001 disengaged from their pursuit. The MCS-3001 crew decided to head back to the location of the previously sighted radio beacon and orange buoy markers in order for them to retrieve the same as evidence of illegal fishing activities being conducted by the small suspected Taiwanese fishing vessel. However, those items can no longer be found at their known location.

Hereunder are the names of the PCG and BFAR officers/personnel onboard MCS-3001 on the day of the alleged shooting incident:

Philippine Coast Guard (PCG):

Bureau of Fisheries and Aquatic Resources (BFAR):

Sailing Order No. MCS-65-2103 dated April 29, 2013 and Travel Order No. 1741 dated April 29, 2013, prepared by ALMA C. DICKSON, DFT, Head, MFDC, and approved by Atty. ASIS G.PEREZ, Director, Bureau of Fisheries and Aquatic Resources, specified that the mission of the MCS-3001 crew was to conduct monitoring, control, and surveillance against all forms of illegal fishing activities at Batanes and Cagayan Islands including Babuyan Channel, Balintang Channel, Bashi Channel, and the Philippine Eastern Seaboard from May 1-31, 2013.

The Monitoring, Control, and Surveillance vessel MCS-3001 is a vessel owned by the Bureau of Fisheries and Aquatic Resources and the same belongs to the fourteen (14) vessels acquired by BFAR. By virtue of the Memorandum of Agreement executed between the aforesaid two government agencies dated September 7, 2004, these vessels are jointly manned by officers/personnel from PCG and BFAR for the purpose of joint operations in the enforcement of laws pertaining to management, protection, and conservation of the country’s marine fisheries and aquatic resources. Mentioned therein among others, these vessels shall display the logo of the Bureau of Fisheries and Aquatic Resources (BFAR) and Philippine Coast Guard (PCG) for identification purposes.

Ocular inspection was conducted on the vessel MCS-3001 and it showed no marking/logo of the Philippine Coast Guard (PCG). Said vessel only bore the marking/logo of the Bureau of Fisheries and Aquatic Resources (BFAR), and Department of Agriculture (DA) on both sides of the top of the pilot house. Likewise, there was a damaged portion of the vessel’s hull located at the “starboard stern”. This Bureau’s Forensic Chemist assigned at the Forensic Chemistry Division (FCD) was able to come near the aforesaid damaged part of the vessel MCS-3001 with the use of a rubber boat for the appropriate forensic examination in order to determine as to whether or not said damage was caused by the ramming of another vessel.

(DA BFAR MCS-3001 “No visible logo/marking of the Philippine Coast Guard)

Hereunder are the details of the specifications of MV DA BFAR MCS-3001:

General Particulars

DETAIL

SPECIFICATION

Builder

Rodman Polyships S.A.

Year Built

2003

Place Built

Spain

Hull Material

Fiberglass

Register Dimensions and Tonnages

DETAIL

SPECIFICATION

Length (Meter)

30.00

Breadth

6.00

Depth

3.45

Hull Material

Fiberglass

Draught

1.50

Gross Tons/Net Tons

112.00/76.16

Particulars of Propulsion System

DETAIL

SPECIFICATION

No. of Engine

2

Cycle

4

Horsepower

1200 I 2

No. of Cylinder

12 each

Engine Make

Caterpillar

 (Damaged portion of DA BFAR MCS-3001)

NBI-Firearms Investigation Division received from PCG on May 15, 2013 the long firearms, which were turned over to Ms. HIYASMIN G. ABARRIENTOS, Ballistician II of this Bureau’s Firearms Investigation Division (FID) through LT. ROMMEL S. MENDOZA, the current Officer-in-Charge of MCS-3001, of the Philippine Coast Guard for the necessary Ballistics examination. The details of the said firearms are hereunder enumerated:

  1. Colt Rifle Caliber 5.56mm with Serial No. 9063992;
  2. Seven (7) Elisco Rifle Caliber 5.56mm with Serial Nos. RP015637, RP204217, RP015498, RP194339, 217716, RP018778, and RP128640;
  3. Four (4) US M14 Rifle Caliber 7.62mm with Serial Nos. 608863, 1362663, 1372316, and 1395549;
  4. Springfield M14 Rifle Caliber 7.62mm with Serial No. 5006;
  5. Winchester M14 Rifle Caliber 7.62mm with Serial No. 1037894;
  6. Browning Machine Gun Cal. 30 with Serial No. 489066.

The following are the Philippine Coast Guard (PCG) personnel who fired their respective firearms on 09 May 2013 at the Taiwanese fishing vessel and their respective positions when “General Quarters”(GQ) was announced by the COMMANDING OFFICER ARNOLD DELA CRUZ, to wit:

  1. SN1 ANDY GIBB R. GOLFO – when GQ was announced by their commanding officer, he went to his respective position at the fantail (back of the vessel) and he was part of PCG personnel to board the rubber boat just in case it was launched.  He alleged that he fired six (6) shots using an M-16 rifle every time their commanding officer ordered to fire. He failed to identify the firearm he used during the shooting incident on 09 May 2013.
  2. SN1 MHELVIN A. BENDO – when GQ was announced, he went to his respective position in forward port (front of the vessel). He allegedly fired twice (2) using an M14 rifle. He identified M14 rifle with No. 12 on butt of the rifle and with Serial No. 1037894 as the firearm he used in the shooting incident on 09 May 2013 when it was presented at NBI Forensic Chemistry Division (FCD).
  3. SN1 HENRY B. SOLOMON – when GQ was announced his position was on star board (right side of the vessel). He alleged firing twice (2x) using an M14 rifle. He identified the M14 with No. 05 on butt of the rifle with a loose sling and with Serial No. 1395549 as the firearm he used in the shooting incident on 09 May 2013 when it was presented at NBI-Forensic Chemistry Division (FCD).
  4. SN1 SUNNY G. MASANGCAY – when GQ was announced, his position was at the front of the vessel near the caliber .30 stand.  He alleged firing two warning shots using an M14 rifle and he failed to identify the firearm he used in the shooting incident on 09 May 2013 when it was presented at NBI Forensic Chemistry Division (FCD).
  5. SN1 EDRANDO Q. AGUILA – when GQ was announced, his position was at the port fantail. He identified the M14 with No. 21 on butt of the rifle and with Serial No. 5006 as the firearm he used in the shooting incident on 09 May 2013 when it was presented at NBI Forensic Chemistry Division (FCD).
  6. PO2 RICHARD CORPUZ – when GQ was announced, his position was at the front of the vessel manning the caliber .30 machine gun. He alleged firing more or less 7 shots using the .30 caliber (in his supplemental Sworn Statement, he alleged that he and AURELIO fired more or less 19 shots using the caliber .30). Position- forward manning caliber .30. He identified caliber .30 as the firearm he used in the shooting incident on 09 May 2013.
  7. SN2 NICKY REYNOLD AURELLIO – when GQ was announced, his position was at the front of the vessel manning the caliber .30 machine gun. He alleged firing more or less 9 shots using the caliber .30 and identified it as the same firearm they (he and CORPUZ) used in the shooting incident on 09 May 2013.
  8. COMMANDING OFFICER ARNOLD DELA CRUZ– fired three (3) shots using an M14 rifle used by SN1 MHELVIN A. BENDO II. During presentation of all firearms at NBI Forensic Chemistry Division (FCD), he alleged that the firearm used by SN1 MHELVIN BENDO was the same firearm he used in firing three shots.

On 14 May 2013, the video footages and photographs were secured from Capt. JERRY NIBRE, Coast Guard for Staff Operation (CG-3), Philippine Coast Guard composed of 3 part videos and several photographs of the aforementioned sighted radio beacon, orange buoy markers, two (2) Taiwanese fishing vessels, and GPS/Video Plotter of MCS-3001. These video footages and photographs were transferred by Capt. NIBRE to a USB of Agt. EDUARDO RAMOS, JR. When viewed, it showed broken footages of the procedures and measures undertaken by the MCS-3001 crew in order to signal the small Taiwanese fishing vessel to stop.

On 24 May 2013, probers secured from Commodore DANILO M. UBALDO, Coast Guard Internal Affairs Services (CGIAS), Philippine Coast Guard, two (2) compact discs (CDs), which contained other vital video footages of the aforementioned incident.

Investigation disclosed that SN1 MARVIN RAMIREZ was the crew of MCS-3001 who took the videos and photographs of the aforementioned incident using his personal “NIKON” camera. It was however discovered that several videos were deleted from the memory card (SD Card) of said camera. When interviewed and confronted in the presence of his legal counsel, SN1 MARVIN RAMIREZ alleged that he was ordered by LTJG. MARTIN BERNABE to delete the other video footages. Likewise, LTJG. MARTIN BERNABE alleged that he was commanded by COMMANDING OFFICER ARNOLD DELA CRUZ to delete the same. SN1 RAMIREZ and LTJG. BERNABE executed their respective sworn statements to this effect.

Likewise, it is noteworthy to mention that the video footages presented and secured by this Bureau from the Office of the Coast Guard Internal Affairs Service were the deleted portions of the video taken by SN1 MARVIN RAMIREZ and contained longer footages of the discriminate gunshots fired at the small Taiwanese fishing vessel during the pursuit.

 II. Taking of Sworn Statements of BFAR and PCG Personnel

1. Sworn Statements of PCG and BFAR Personnel:

In PCG COMMANDING OFFICER ARNOLD DELA CRUZ’s sworn statement dated 18 May 2013[39], (assisted by counsel Atty. MAYETTE M. MENDOZA), Dela Cruz averred the following: He is the former Officer-in-Charge of the Department of Agriculture (DA), BFAR Monitoring Control Surveillance vessel 3001 (BFAR MCS-3001). As OIC, he was in charge of the operation of the said sea vessel and administrative supervision of its personnel and these include coastguard functions to provide rescue and assistance and enforcement of BFAR fisheries law.

COMMANDING OFFICER DELA CRUZ further stated that in the morning of 09 May 2013, he conducted regular patrol operations on board PCG vessel MCS-3001 together with the following personnel:

  1. Lieutenant Junior Grade (LTJG) MARTIN BERNABE;
  2. Seaman 1st Class (SN1) SONNY MASANGCAY;
  3. Seaman 1st Class (SN1) EDRANDO AGUILA;
  4. Engineering Officer & Supply Officer (ENS) NOEL B. RAMOS;
  5. Seaman 1st Class (SN1) DANNIEL FUNG;
  6. Seaman 1st Class (SN1) CLAR WILFRED REVIL;
  7. Seaman 1st Class (SN1) ARNOLD REYES, JR.;
  8. Seaman 1st Class (SN1) HENRY SOLOMON;
  9. Seaman 1st Class (SN1) ALVIN MAYO;
  10. Seaman 1st Class (SN1) MARVIN RAMIREZ;
  11. Seaman 1st Class (SN1) MHELVIN BENDO II;
  12. Seaman 1st Class (SN1) ANDY GIBB GOLFO;
  13. Seaman 1st Class (SN1) BENJIE AJERA;
  14. Seaman 1st Class (SN1) ROY HAVERIA INFANTE;
  15. Seaman 2nd Class (SN2) NICKY RENOLD D. AURELLO;
  16. Petty Officer 2 RICHARD F. CORPUZ;
  17. ARSENIO S. BANARES;
  18. JIMMY VELUYA; and
  19. RONLEY ADDUN.

They also had on board and in their possession eight (8) M16 rifles, six (6) M14 rifles and one (1) .30 caliber Light Machine Gun (LMG).

Their vessel was on patrol pursuant to BFAR Sailing Order MCS-65-2013, directing them to proceed to Batanes and Cagayan, including Babuyan Channel, Balintang Channel, Bashi Channel and the Philippine Eastern Seaboard.

At around 9:45 A.M., while at the vicinity of Balintang Channel (19 degrees 54.48 minutes North Latitude 122 degrees 50.08 East at vicinity 39 nautical miles East of Balintang Island), an area which is a part of the Philippines EEZ, they sighted a fishing radio beacon (a cylindrical transmitter designed to be attached as floating device to drifting fishnets in order to allow fishing boats to locate their casted fishing nets by means of radio signal detection). Later, they also sighted two (2) floating orange buoy (or balloon) markers, thus, indicating that fishing activities were being conducted in said area.

They continued patrolling around the said vicinity when they saw two (2) white fishing vessels about six to seven nautical miles from them. The first vessel (“Vessel 1” for brevity) is twice the size of their vessel. After calling and informing BFAR QRT ARSENIO BAÑARES of what they saw, the latter instructed them to conduct boarding procedure on Vessel 1.

Subsequently, while they were approaching vessel 1, a second vessel (“Vessel 2” for brevity) sped towards their vessel and made a stop fifty (50) meters ahead of them, thus, preventing them from approaching Vessel 1. Consequently, COMMANDING OFFICER DELA CRUZ declared “General Quarter” status (imminent danger condition requiring all personnel to man their emergency assigned post) and to prepare for boarding. He then announced twice to Vessel 2 (which he noticed to have no flag and had Chinese markings on its hull) through very high frequency (VHF) radio channel the following words, “White Fishing Vessel in front of me, this is the Philippine Coast Guard. What is your intention?”

He further noticed from the said foreign vessel that nobody was manning the bridge, thus, nobody answered his announcements. He presumed that the said vessel is a foreign pirate vessel inside the Philippine EEZ jurisdictional waters as it had no flag and had Chinese characters on it.  Hence, he instructed SNI ROY INFANTE, Quarter Master who was manning the throttle, and Lt. JG MARTIN L. BERNABE, the steersman, to chase Vessel 2.

While chasing Vessel 2 in Philippine jurisdictional waters, he instructed his personnel on the bridge to blow the ship’s horns while he announced through loud speaker: “This is the PCG on patrol; we intend to board your vessel for routine inspection. Please stop, please stop, please stop.” The blowing of ship horns and his announcement were alternately done three times. Instead of complying, Vessel 2 continued to sail away; hence, they gave chase for several minutes, until Vessel 2 slowed down her speed and stopped.

As they approached Vessel 2, COMMANDING OFFICER DELA CRUZ announced, “We are the PCG, you are in Philippine waters. We are going to conduct routine boarding inspection to your vessel. Please stop.”

As their vessel was in a gliding forward motion a little bit ahead on the left side of Vessel 2’s bow, he observed that no one was manning the bridge.  He then monitored on a marine band radio a conversation that sounded like it was being conducted in the Chinese language with one party giving instructions. Then, he heard a sudden revolution sound of Vessel 2’s engine. This prompted him to shout to his men “Babanggain yata tayo”. Immediately, their vessel moved backward to avoid the forward thrust of Vessel 2. After attempting to ram the starboard bow of their vessel, Vessel 2 sped away.

In response, they gave chase while sounding their horns and announcing in a loud speaker, “This is the PCG on patrol, please stop, please stop, please stop”.

As Vessel 2 continued to speed away, COMMANDING OFFICER DELA CRUZ directed his men stationed at the bow to fire warning shots. Then, he saw one of his men at the bow, SUNNY MASANGKAY, fire a warning shot. As they continued chasing Vessel 2 in Philippine waters, they noticed that the latter maneuvered in circling loop motions trying to find an angle for ramming their vessel.

Consequently, they also maneuvered to evade and stay out of the bow of Vessel 2. This situation continued for several minutes.

Thereafter, COMMANDING OFFICER DELA CRUZ observed that Vessel 2 stopped and a man without an upper garment appeared from the backdoor of the superstructure (or room above the hull). While at the back portion (stern) of Vessel 2, the said man signaled to approach their Vessel 2. As they approached Vessel 2 and the said man was about to receive the rope line, they again monitored at the marine band radio a Chinese-sounding language, as if someone was giving instructions to another.

Suddenly, the man ran inside the boat, and Vessel 2 started its engine and moved backward then its engine toned down. Then, Vessel 2’s engine again sounded with more black smoke coming out from her pipe as it prepared to move forward to ram their vessel. Immediately, their vessel moved forward to evade Vessel 2. After doing so, Vessel 2 again sped away. COMMANDING OFFICER DELA CRUZ ordered a hot pursuit on Vessel 2. In the course thereof, Vessel 2 continued to make a circling loop motion to find a better angle for ramming their vessel. To evade the same, their vessel tried to stay at the rear portion of Vessel 2.

After confirming that Vessel 2 is engaged in illegal fishing activities and had intentions to ram their vessel in order to prevent the conduct of on-board inspection, COMMANDING OFFICER DELA CRUZ instructed his personnel manning the bow to fire at the hull where the engine is located to disable the engine of Vessel 2. PCG-SOG, PO2 RICHARD F. CORPUZ and SN2 NICKY RENOLD D. AURELLO manned the caliber 30 light machine gun. COMMANDING OFFICER DELA CRUZ also instructed Lt. JG BERNABE to maneuver close enough as possible to ensure that the gunners could aim well at the target.

He alleged that when they were approximately ten (10) meters away from Vessel 2, it was then that they fired the first shot. He admitted firing three single aimed shots from an M14 at the port quarter stern of Vessel 2. After noticing that the same had no effect on Vessel 2, he ordered the use of the caliber 30 light machine gun (LMG). His men also used M16 rifles.

While the said hot pursuit was happening in Philippine waters, COMMANDING OFFICER DELA CRUZ saw a third color gray vessel about ten (10) nautical miles from them. Also in the said direction was Vessel 1. He then ordered to change course towards Vessel 1. However, Vessel 2 proceeded to their path and again the latter tried to ram them. They again tried to evade Vessel 2 and, every time they got closer, he ordered to fire two shots at the hull of Vessel 2, which shots he noticed were ineffective.

The said chase, run, ram and evade maneuver might have lasted for twenty five (25) minutes, during which, at one instance, Vessel 2 almost succeeded in ramming their starboard bow. On said occasion, he also ordered to fire at the rudder machineries located at the stern of Vessel 2.  However, the same also proved futile.

He then diverted their vessel to a safe distance and tried to contact the color gray vessel through marine band radio, but they received no response.

They asked for guidance from BFAR QRT ARSENIO BAÑARES, who replied, “Kung mahirapan man tayo magboard, huwag na lang”.

He then noticed that the colored gray vessel is not a Philippine vessel and was then approaching them. He also noticed that Vessel 2 is again approaching them. He could not establish any communication with his higher authorities for guidance and assistance. After assessing the situation, COMMANDING OFFICER DELA CRUZ decided to discontinue the hot pursuit and proceeded to the area to recover the radio beacon, but the same can no longer be found.

In the process thereof, they spotted another white fishing vessel. They wanted to go after the said vessel but the visibility at the time was no longer favorable.

Eventually, they sailed towards Port Irene, Sta. Ana, Cagayan and he reported in writing the incident to their higher authorities.

COMMANDING OFFICER DELA CRUZ asserted that Vessel 2 demonstrated actions of a hostile vessel as shown in the following incidents:

  1. Vessel 2 prevented them from pursuing Vessel 1;
  2. Vessel 2 attempted to ram them on different occasions; and
  3. Vessel 2 attempted to ram their vessel during the hot pursuit, during which Vessel 2 continued a run, ram and evade maneuver.

These actions are clear indications of Vessel 2’s intention of preventing them from performing their mandated functions to board and search Vessel 1 and causing serious damage to their vessel. Consequently, pursuant to the PCG Rules of Engagement, the use of force is allowed.

Later, his men informed him that parts of the stern and the bow of their vessel were damaged. He also learned from the news that a Taiwanese national was killed in an incident similar to their encounter, which transpired in a different location.

In a supplemental affidavit dated 21 May 2013, COMMANDING OFFICER DELA CRUZ (assisted by counsel Atty. MAYETTE M. MENDOZA) narrated further that he personally fired three shots from a PCG-issued M14 rifle, aiming at the hull of Vessel 2 where its engine was located from a distance of approximately five (5) to ten (10) meters from the bridge starboard’s door of their vessel. After borrowing the said firearm and firing three shots at the target, he returned the same to MHELVIN BENDO II.  Furthermore, he allegedly aimed the shots at the said target to re-emphasize to his men to shoot at the said target area/point.

LT JG MARTIN BERNABE, PCG, in his counseled statement,[40] declared that he is the Deck Officer 2 and Assistant OIC and Acting Operations Officer of DA BFAR MCS-3001. On May 9, 2013 at 8:52 A.M., while conducting patrol East of Balintang Island, they spotted a radio beacon and an orange buoy, and they plotted it on their electronic video plotter.

While continuing their patrol, an alert was made for possible presence of fishing vessel in the vicinity. After a while, their CO saw a white vessel. Upon verification, it turned out that there were two (2) vessels (one big vessel and one small fishing vessel) located forty-four (44) nautical miles east ofBalintang Island.

When their commanding officer ordered them to approach the big vessel, they noticed that the small vessel was approaching them, so their commanding officer ordered a “General Quarter”. He went to his post as navigator and Talker at the bridge. When the small vessel was near them, their commanding officer announced, “This is the PCG, stop your vessel,” but the small vessel continued in its approach.

They sounded their horn, but still the small vessel continued.  So, to avoid collision, they had to slow down and let the small vessel pass. Their CO then ordered them to follow the small vessel and continued to sound their horn, but the small vessel did not stop.

Later, he heard his commanding officer order “FIRE!” When he looked at the small vessel, it was still continuing its route. Then he heard again another shot, but still the vessel did not stop. Their commanding officer announced again, “This is the PCG, Taiwanese vessel stop!” Then, the vessel slowed down.

A person went out from its fantail and made a hand signal to approach them on their starboard, but they did not heed the signal because they might hit the floating buoy marker with its long lines and they might get their propeller entangled. Instead, they proceeded to approach the vessel on its portside. Once they were ready to board, the small vessel suddenly moved backward, so he caused their vessel to move forward as the small vessel was moving fast forward from their portside.

The commanding officer ordered a chase and, when they were near (around 15 meters), the commanding officer ordered “Fire for effects at the engine”. He then heard gunshots, but did not know who fired the same because, from the bridge, he could only see the .30 Caliber manned by PO2 CORPUZ and SN2 AURELLO. During the chase, there were instances that the small vessel would turn left to aim at their bow, but he slowed down, stopped or moved backward to evade a collision.

When their commanding officer ordered to move forward and go near the vessel, he ordered his steersman to go left and approached the portside of the small vessel. Upon nearing the vessel, their commanding officer ordered “Fire at the Astern”, after which, he heard gunshots.

When asked if the ship was in danger when their commanding officer ordered “Fire at the Astern”, BERNABE said that “The small vessel was positioning itself to ram our bow and when this happens it could damage the ship which is only made of fiber glass.”

During the chase, they also noticed the small vessel creating waves to prevent them from getting near; they also kept their distance to avoid colliding with the small vessel. The small vessel just kept on going round and round until they spotted a gray ship. When they radio challenged the vessel, it did not respond, so their commanding officer ordered them to contact BFAR and HPCG, but they could not get through.

At this point, their commanding officer ordered them to disengage and go back to Port Irene. They then tried to retrieve the radio beacon but it was already gone.

ENS NOEL RAMOS y BANEZ, Engineering Officer and Mess and Supply Officer of MCS-3001, disclosed in his counseled sworn statement[41] that, on May 9, 2013, at around 10:00 a.m., he heard their commanding officer order “General Quarters”, so he proceeded to his crew mess designated area.

Then, he heard their commanding officer order “prepare to launch rubber boat for boarding party, second section provide.”  So he proceeded to the fantail area, where the rubber boat is located. He then went down to check the engine and, upon going up, he noticed the vessel near their ship.

When it began to move backwards, he thought it was going to ram them, so he went down again to check their engine room for any damage. Later, they gave chase to the vessel, but it just went around. While he was at the fantail area, he saw SNI SOLOMON fire his M14 rifle at the vessel at a distance of 20 meters. They also went back to the place where they saw the radio beacon and the long lines to confiscate them but the same were nowhere to be found and they assumed that they might have been taken while they were distracted by the small vessel.

SN2 NICKY REYNOLD D. AURELLO stated that he served as an escort/security in BFAR – Monitoring, Controlling, Surveillance, 3001 (MCS-3001). He sometimes performs duties, as ordered, as rescue diver for underwater inspection. His Mission Order provides that he is a member of the Special Operations Group of the PCG.

On 09 May 2013, they patrolled the Balintang Channel on board BFAR MCS-3001 with fifteen (15) Coast Guard personnel as permanent crew, two (2) PCG-Special Operations Group and three (3) BFAR personnel.

He was instructed by his Commanding Officer, during that May 09, 2013 incident, to shoot at the target vessel’s engine (Taiwanese vessel). He was at that time using a caliber .30 machine gun and allegedly pulled the trigger five (5) times upon orders of his Commanding Officer.

In his supplemental sworn statement, SN2 AURELLO averred that he was duly issued a Mission Order by COMMANDING OFFICER INOCENCIO C. ROSARIO, PCG, Commander of the Coast Guard Special Operations Group. He stated that he manned the caliber .30 light machine gun since he has knowledge of how to handle the said firearm.

He disclosed that 6 to 7 bullets coming from the .30 LMG might have found its target. All the shots were made in accordance with the order to fire given by Commanding Officer ARNOLD DELA CRUZ. However, the vessel failed to stop and, in some instances, maneuvered towards their vessel. This situation continued, and there was one instance where they almost collided with the Taiwanese vessel when they were in front of the said vessel.

He could not recall exactly how many shots were fired from the machine gun. He asserted that the firing was made in intervals of two (2) to three (3) minutes and occasioned at the time when the vessel was near their vessel.[42]

SN1 SUNNY MASANGCAY y GALANG in his counseled statement[43] declared that, on May 9, 2013, at around 9:00 and 10:00 A.M., while patrolling Balintang Channel, their commanding officer ordered a “General Quarters” and when he went out of their ship, he saw four (4) Taiwanese Vessels about four (4) to five (5) nautical miles from them, one small and three large vessels.

When they tried to approach the biggest vessel, they were confronted by the small vessel, so they announced that they were the PCG and ordered the small vessel to stop, but it refused to halt.  Instead, it challenged to give chase.

When the small vessel did not stop, their commanding officer ordered him to fire a warning shot, using his M14; then, a second warning shot after forty-five (45) seconds, both aimed at the sky.

After the warning shot, the small vessel slowed down. They went near and prepared to board, but the small vessel suddenly moved backward and sped off. They then gave chase which lasted for more than 1 hour.

When they were near the small vessel, the commanding officer ordered “Fire for effect”. The coast guard started to fire at the vessel. However, he did not fire anymore because his M14 jammed.

He knew that warning shots are prohibited but it was the order of his commanding officer.

He believed that the small vessel had a steel bulbous bow considering that when fired upon, he could hear the pinging sound of steel. He did not see any incriminating equipment on the vessel except fishing paraphernalia.

SN1 ALVIN INTING MAYO, who worked as an engine man or engine maintenance crew, stated that, while at Balintang Channel, they saw a radio buoy and suspected the presence of fishermen around the area. However, he stated that he did not see anyone who fired at the target vessel, but only heard the shots. He further stated that he only saw HENRY SOLOMON and EDUARDO AGUILA with an M14 rifle and SN2 NICKY REYNOLD manning the caliber .30 machine gun. He stated that he saw the attempt of the target vessel to ram BFAR MCS-3001.[44]

SN1 MHELVIN A. BENDO II is a look-out and performs other duties in BFAR MCS-3001 as “Gunner mate,” and “Administrative operator” and “cook steward” as secondary duties.

He averred that, upon hearing from the PA system the announcement of General Quarters (GQ), he immediately got hold of the key to the armory, took  the firearms and ammunitions one by one, and gave the firearms to his companions.

He stated that during the incident, he manned his battle station at the left side (forward port) of the vessel with an M14 rifle. He fired twice at the target vessel (white vessel with Chinese characters) when his commanding officer ordered, “Fire for Effect to the Engine”.

He further stated that the M-14 he used was the same firearm taken from him by Commanding Officer ARNOLD DELA CRUZ, who fired it three times at the engine area of the target vessel, prior to his turn in firing at the target vessel’s engine.

In his Supplemental Affidavit, he reiterated his previous statements (as contained in his Affidavit dated 17 May 2013) and personally identified the M14 (Butt No. 12 with Serial No. 1037894) which he used at the time of the incident. He allegedly fired twice at the target vessel when it was twenty-five (25) to thirty (30) meters away from BFAR-MCS-3001 and he was positioned at the middle right side of their vessel[45].

SN1 BENJIE VILLANUEVA AJERA, an electrician and Petty officer-in-charge at the mess hall of the vessel, stated that he was told by SN1 RAMIREZ of the radio beacon and floating buoy sighting at “Balintang Channel”.

When they saw the target vessel nearby, their commanding officer ordered “General Quarters” and all crew manned their battle station. He witnessed SN1 MASANGCAY fire a warning shot while they were chasing the target vessel. He further stated that their Commanding Officer ARNOLD DELA CRUZ used the PA system to identify themselves and ordered the target vessel to stop while on hot pursuit.

When the target vessel stopped, it attempted to collide with BFAR-MCS-3001; hence, upon evasive maneuvers their commanding officer ordered “fire for effect”. He saw PO2 CORPUZ and SN1 MASANGCAY fire their rifles.

They chased the target vessel for about thirty (30) minutes, but eventually decided to return to Port Irene before they reached the end of the Philippines Exclusive Economic Zone. Finally, he stated that he heard around twenty-five (25) gunshots during the chase.[46]

SN1 ANDY GIBB RONARIO GOLFO, PCG, in his testimony (assisted by counsel), declared that on May 9, 2013, at around 9:00 A.M., he was alerted by the announcement of their commanding officer for “General Quarters” so he got his gun and went to his assigned position, which was at the back of the ship (fantail).

Their commanding officer then ordered them to prepare the rubber boat for launch.  It was then that he noticed the white vessel in front of their ship. He then heard his commanding officer order “Give warning shot”.  Then, he heard a single shot.

After this, he went starboard forward (right front of ship). While thereat, he saw a man come out of the white vessel signaling not to go to the right side of their boat because of the buoy, and then the white vessel stopped.  They went near to board, but the white vessel moved backward and sped away on the left side of their ship. Their commanding officer then ordered to “give warning shot”. Again he then heard a single shot. The white vessel again sped away and they gave chase. The white vessel then slowed down and crossed the front of their ship, forcing them to stop to avoid the attempted ramming of their ship. The white vessel again sped away and they gave chase. This time, their commanding officer ordered “Fire for Effect” to disable the white vessel and for the security of the ship.

While chasing the white vessel, their commanding officer ordered “Fire for Effect” and each time the order was given, he would fire two (2) single shots. According to him, he fired a total of six (6) shots.

He also declared that there were two (2) SOG of the PCG, namely, PO2 RICHARD CORPUZ andSN2 NICKY REYNOLD AURELLO, who fired shots, but that SN1 SUNNY MASANGCAY’s gun jammed.

In his supplemental affidavit, SN1 GOLFO was asked, in the presence of his counsel, to identify the rifle he used when his commanding officer ordered “fire for effect”, but he failed to identify it. He reasoned that he cannot remember as he just woke up and not fully attentive when “General Quarters” was ordered.

He further reiterated his previous statement that, when they went near to board the target vessel, it moved backward and sped away on the left side of their ship. Their commanding officer then ordered to “give warning shot” and he then heard a single shot. The white vessel again sped away and they gave chase for more than one hour.

When asked what they intended to do, he said that, as a matter of procedure, since the rubber boat could not be used to board the target vessel due to rough sea condition, they attempted to get near the target through the use of rubber fender, but it did not reach the target vessel.[47]

SN1 CLAR WILFRED REVIL y ARTAJO and SN1 DANNIEL FUNG y CARREON,[48] both of the PCG, declared in their joint sworn statement that on May 9, 2013, at around 9:00 or 10:00 A.M., while patrolling East of Balintang Island, they noticed two (2) foreign fishing vessels: one (1) small and the other big. This made their ship to go on General Quarters (GQ), and all stayed alerted and held arms.

When they tried to approach the two (2) vessels to see if they were “poaching” inside Philippine Waters, the small vessel prevented them from reaching the big vessel, so they concentrated on going near the small vessel. When they were near the said vessel, they announced that they were the Coast Guard and ordered them to stop, but, instead of stopping, the small vessel ignored their announcement and sped away.

They then gave chase while their commanding officer ordered to fire two (2) warning shots, which were done by SN1 SUNNY G. MASANGCAY. The small vessel slowed down and as they approached the small vessel, again, it attempted to cross the path of their ship as if trying to ram their ship, which prompted their commanding officer to give orders to disable the small vessel by targeting its engine. However, SN1 REVIL did not fire because he was on standby to launch the rubber boat.  SNI FUNG did not also fire his gun because it was issued to SN2 AURELLO from PCG-SOG and not to the ship.

They saw SN2 NICKY REYNOLD AURELLO and PO2 RICHARD CORPUZ hold and fire the .30 caliber gun, SNI MASANGCAY, his M14 and SN1 GOLFO, his M16. All shots were directed towards the engine except SN1 MASANGCAY, who fired twice only for the warning shot order. During the chase, they later saw three (3) big vessels in the vicinity which forced them to call off the chase.

In his Supplemental Statement[49], SN1 DANNIEL FUNG made the following averments: that he could not identify the firearm he used during the incident, but confirmed that it was an M-16 rifle given to him by SN2 AURELLO, who was then manning the .30 LM gun; that he was not able to fire the gun; that he was at the forward part of the vessel; and that the GQ lasted for more than an hour, but he could not determine the length of time the PA system was used to introduce the presence of the PCG. He also testified that he witnessed once the attempt of the Taiwanese vessel to ram their ship.

When asked whether the MCS-3001 had markings of the PCG, he answered in the negative, but averred that the ship had the Philippine flag and logo of BFAR.

He identified SN1 MASANGCAY who carried an M14 rifle and fired warning shot and SN1 GOLFOwho used an M16 rifle and fired at the engine of the Taiwanese vessel.

SN1 HENRY BACO SOLOMON PCG, in his testimony[50] assisted by counsel, averred that he is the engineman of BFAR-MCS-3001, whose main duty and responsibility is the maintenance of all machineries in the vessel. He declared that on May 9, 2013, at past 9:00 AM, while at BalintangChannel, his commanding officer announced a General Quarter (GQ) order. He then positioned himself as a Rifle Man at the starboard aft or at the right side back position of the boat.

While in said position, he noticed a white vessel approaching in what seemed to be in a ramming position, but the vessel crossed in front of their ship eventually passing their vessel. At the same instance, their commanding officer announced “This is the PCG, stop your Vessel,” but the vessel did not stop and they gave chase.

After a few minutes, he heard a single “warning shot.” Then, a second single shot followed after a few seconds.

The white vessel then stopped and they approached it from its left side, but when they were side by side with the white vessel, the same quickly moved backwards and positioned itself at their back with its front directly pointed at the stern of their ship.  They then moved forward to avoid its front end. The white vessel again attempted to ram their ship from the front.

Their commanding officer then gave orders to “Disable the white vessel” and “Fire for Effect”. At this point, they went on standby to fire, so when they were side-by-side with the left side of the white vessel, about 20-25 meters away, he fired a single shot and another shot but his M14 jammed and he remained in his position.

He also disclosed that SN1 EDRANDO AGUILA, who was beside him, also fired his gun.

In his supplemental sworn statement, he was able to identify the firearm he used during the incident, an M-14 rifle with the number 5 on the butt of the gun with Serial Number 1395549. He averred that the chase lasted for more or less one (1) hour, where the Taiwanese vessel ran in circular path and sometimes a straight path.

PO2 RICHARD CORPUZ y FERNANDEZ SOG-PCG, in his counseled sworn statement, declared that, on May 9, 2013 at around 9:00 A.M., while patrolling Balintang Channel, they encountered two (2) unidentified vessels. Their commanding officer ordered “General Quarters”.

When they tried to go near the big vessel, the small vessel attempted to ram the right side of their ship, but stopped when he fired a warning shot from the .30 caliber as ordered by their commanding officer. When they maneuvered near the portside at the small vessel, it suddenly moved backward and hit the starboard side of their ship and it aimed at their ship’s stern, as if getting enough space to ram them, then it moved forward to the left in a fast speed.

They chased the small vessel and gave another warning shot per order of their commanding officer. When the small vessel did not stop, their commanding officer ordered them to shoot the engine and propeller to stop the small vessel in its intention to ram them. They continued to follow the small vessel in a circular path without stopping so it could not have the position to ram their ship as it could cause their vessel to capsize considering the condition of the sea.

Later, they disengaged per order of their commanding officer when they saw a gray ship, which refused to respond to their radio, for the safety of the crew.

In his Supplemental Sworn Statement, CORPUZ stated that he and SN2 AURELLO were given a Mission Order to carry an M16, but Commanding Officer DELA CRUZ ordered them to use the .30 caliber. They chased the smaller vessel for approximately one to one and a half hours.

The gunshots fired by both CORPUZ and AURELLO were approximated to number between fifteen (15) to nineteen (19).[51]

In his sworn statement, SN1MARVIN GRAFILO RAMIREZ stated among others, that he is presently employed as Seaman 1stClass (SN1) of the PCG, and assigned at the MCS-3001 vessel (stationed at Sta. Ana, Cagayan) of the BFAR, Department of Agriculture.

On 09 May 2013, while on duty and at the bridge of MCS-3001, he saw floating radio beacons at about 500 meters ahead of their vessel after which Mr. BANARES informed their Commander Officer, ARNOLD DELA CRUZ, of the possibility of the presence of a mother ship in the area. They continued patrolling and after the lapse of an estimated forty (40) minutes, they saw colored orange floating buoys.

He took pictures of the floating buoys and, after a while, they saw two (2) white vessels (small and big), which he also photographed. Commander Officer DELA CRUZ ordered “General Quarters” and, after a few minutes, he also declared to the crew “Board and Search”.

While they were approaching the big vessel, the small vessel crossed their path, thus, they decided to search first the small vessel, but the latter continuously sailed with high speed and even attempted to ram their vessel. Commanding Officer DELA CRUZ further made instructions to fire two (2) warning shots on the foreign vessel.

The small vessel slowed down and eventually stopped, but, while their vessel (MCS-3001) was about to get closer, the small vessel maneuvered backward and apparently tried to ram the back portion of MCS-3001.  The small vessel then sped-off and they pursued the same.

He also took video footages (three sets) of the incident, which entirely ran about twenty-five (25) minutes; starting from the time they were trying to stop the small vessel until the moment when the said vessel sped-off after trying to ram the back portion of MCS-3001. The battery of his camera had drained-off, prompting him to re-charge the said battery.

In a Supplemental Sworn Statement dated 23 May 2013, he further averred that heerased/deleted a portion of the video coverage that he took during 09 May 2013 incident, particularly the moment when their vessel MCS-3001 was chasing the Taiwanese fishing vessel after the latter maneuvered backward and sped-off.

Said edited video footage/coverage was submitted by him to the NBI investigators.

The erased/deleted portion was about twenty (20) minutes long, and may have shown the following:

  1. The acts of  PO2 CORPUZ  and SN2 AURELLO firing their caliber .30;
  2. The  act of SN1 AGUILA  firing his M-14 rifle; and
  3. The moment when SN1 SOLOMON was about to fire his rifle, but it jammed or malfunctioned.

There was also some short footage that he deleted, pertaining to moments when their vessel was chasing the Taiwanese fishing vessel. On 13 May 2013, at Pier 13 Headquarters Coast Guard Ready Force, while still on-board/inside MCS-3001 viewing his recorded video footages, he was instructed by Ex-O BERNABE to erase the portions stated above.

He gave Ex-O BERNABE an unedited or full-length version of the said video footages when the latter asked him for a copy. He still has a copy of the unedited video footages, but declined to furnish the NBI as he has yet to consult his counsel.[52]

SN1 EDRANDO QUIAPO AGUILA, member of the PCG and Engineman of MCS-3001, in his sworn-statement, stated in substance, among others, that on 09 May 2013, he was on duty at MCS-3001 with Commander Officer ARNOLD E. DELA CRUZ, LTJG MARTIN. L. BERNABE, Engineering Officer NOEL B. RAMOS, SN1 ROY H. INFANTE, SNI SONNY MASANGCAY, SN1 DANNIEL FUNG, SN1 HENRY B. SOLOMON, SN1 CLARK WILFRED REVIL, SN1 MELVIN BENDO, SN1 ALVIN MAYO, SN1 MARVIN RAMIREZ, SN1 ANDY GIBB GOLFO, SN1 ARNOLD REYES, SN1 BENJIE AJERA, PO2 RICHARD F. CORPUZ, SN2 NICKY RENOLD AURELLO and three (3) BFAR personnel named JIMMY F. VELUYA, ARSENIO BANARES and RONLEY ADDUN.

Upon hearing the order “General Quarters” from the P.A. system, he headed to the bridge of MCS-3001, where he was given an M14 rifle. He then went to his position at port fantail.

He admitted firing his rifle once, which was directed at the engine of the small vessel but he missed his target.  Instead, it hit the waters. The order to shoot came from Commanding Officer DELA CRUZ after the small vessel maneuvered backwards, and while said vessel was speeding away.

After a few minutes, he further fired his gun twice, again upon orders from Commanding Officer DELA CRUZ, but instead he hit the hull of the small vessel. He also saw SN1 SOLOMON fire his gun once, directed at the engine room of the small vessel.

On 21 May 2013, SN1 AGUILA voluntarily gave his counseled supplemental sworn statement. He was able to identify the M14 rifle with Serial No. 5006 and marking Butt No. 21 and confirmed that it was the same rifle that he used when he fired upon the water (once) and the engine room of the Taiwanese fishing vessel (twice).

He denied that a female person was also on-board MCS-3001 during the 09 May 2013 incident.

The “General Quarters Order” of Commanding Officer DELA CRUZ lasted for more than an hour. It took about twenty (20) minutes for Commanding Officer DELA CRUZ in making “public announcements” or informing/warning the Taiwanese Fishing Vessel, but the latter only slowed down but never stopped sailing/moving.

When asked why Commanding Officer DELA CRUZ ordered the shooting of the Taiwanese fishing vessel’s engine, he replied that it was because the latter would be ramming their vessel (MCS-3001). He further declared that MCS-3001 had no sign or symbol of the PCG, but it had the Philippine Flag and sign or logo of the BFAR.[53]

SN1 ARNOLD BAESA REYES, JR. is a member of the PCG and assigned to MCS-3001 BFAR Patrol Vessel as cook steward and look-out.  He stated that at about 9:30 A.M., on 09 May 2013, while their vessel was approaching a foreign vessel, he heard a gunshot and followed by another gunshot after an interval of about five (5) to ten (10) seconds. He also heard numerous gunshots while their vessel was chasing/trailing the said fishing vessel.[54]

Mr. JIMMY FULGENCIO VELUYA, Job Order employee of the BFAR, and presently assigned as Engineman of MCS-3001 BFAR Patrol Vessel, stated that, at the time of the incident (09 May 2013), he saw AGUILA, REYES, SOLOMON, BENDO, GOLFO, MASANGCAY, all personnel of PCG and two (2) SOG Personnel holding their respective firearms. He also stated that it was Commanding Officer DELA CRUZ who ordered the shooting of the engine room of the small fishing vessel. He further confirmed that all the afore-mentioned coast guard and SOG personnel fired their guns.[55]

ARSENIO SIBAYAN BANARES, Officer-in-Charge of the Fisheries and Quarantine Division and a Fishery Law Enforcement Officer of Quick Response Team of BFAR, Region 2, Carig, Tuguegarao City, in his Sworn Statement dated 15 May 2013[56], and his Supplemental Statement/Sinumpaang Salaysay dated 16[57] and 22[58] May 2013, respectively, stated that on 08 May 2013, he was aboard BFAR MCS-3001 at Port Irene, Sta. Ana, Cagayan, where he acts as team leader, along with RONLEY ADDUN and JIMMY VELUYA. There were three (3) BFAR crew in BFAR MCS-3001.

Based on their Sailing Order[59], seventeen (17) members were supposed to be with MCS-3001, but because one of them (SN1 MARK LESTER SARNO) was on-leave, only sixteen (16) PCG members were in MCS-3001 during the incident.

On 09 May 2013, while patrolling along Balintang Channel, they noticed radio beacons and buoy markers; and sighted two (2) suspected fishing vessels approximately one (1) mile away apart, both bearing no flag of nationality, located around latitude 19 degrees 58.07 minutes North longitude 122 degrees 57.53 East in 44 NM East of Balintang Island. With the presence of radio beacons and buoy, he surmised that there is an on-going “long line fishing” in the vicinity and the two vessels were actually engaged in fishing – the smaller one was used in setting the “long line” and the other one was used in hauling the “long line”, as the latter has line hauler and larger fish holds (fish containers). He added that he is a lecturer of capture fishing technology and a licensed fishery technologist; hence, he is familiar with fishing vessels.

As shown by Global Positioning System (GPS) of MCS-3001, the two (2) foreign fishing vessels were within Philippine Waters because they were sighted at forty-three (43) nautical miles fromBalintang Island.

He and Commanding Officer ARNOLD DELA CRUZ decided to approach the larger fishing boat that was closer to them and prepared for boarding procedure, but the smaller suspected fishing vessel (small vessel) with Chinese characters and bearing Serial No. 0937320429 maneuvered heading towards their direction. They announced through Public Address (PA) System their authority and blew its siren/horn, so that the team could conduct proper boarding procedures. The small vessel, which they perceived as made of steel, slowed down and nearly stopped, but when they were already near it, the latter again maneuvered to cross the path almost ramming BFAR MCS-3001, they however, managed to evade by maneuvering backward.

He did not see firearms in the suspected foreign fishing vessel, though he saw one male person on-board whose upper torso was bared, fair complexioned, but he could not determine the age.  The said person was not holding anything at that time. Though there were a remarkable number of antennas attached to the vessel, he did not notice any unusual equipment in it.

They tried to stop the smaller vessel when it sped away and they again made several announcements through PA system for the vessel to stop. A warning shot was likewise fired but the small vessel still continuously evaded them.

During the hot pursuit, it slowed down, momentarily stopped and stayed close to BFAR MCS-3001 at around latitude 19 degrees 59 minutes 13.2 seconds North longitude 122 degrees 54 minutes 50.6 seconds East of 43 NM East of Balintang Island. They prepared for boarding procedure, but the suspected fishing vessel suddenly maneuvered backward and travelled at full speed towards them, almost hitting the astern side of BFAR MCS-3001, which, in turn, managed to evade by maneuvering forward. The small vessel attempted to ram BFAR MCS-3001 more than two times.

The said small vessel maneuvered to escape and as the pursuit resumed, he heard a series of warning shots.  The warning shots were all single shots, even if there were successive warning shots.  There was no occasion that there was a rapid fire made. Hot pursuit lasted for approximately one (1) hour and during that time the PCG Commander ordered to shoot at the vessel’s engine. There were instances during the hot pursuit when BFAR MCS-3001 and the suspected foreign fishing vessel almost bumped each other. During that time, he was at the pilot house and occasionally went to the rear part near the rubber boat.

The PCG personnel on board MCS-3001 were the ones who fired the warning shots using their long firearms.  He saw that they were holding Caliber 30, M16 and M14 rifles, but he did not see who fired the warning shot. He added that around five (5) PCG members were holding firearms. The PCG member at the back portion of MCS-3001 and the one holding the caliber .30 were the ones whom he saw fire at the vessel to disable the engine per Commanding Officer DELA CRUZ’s orders. None of the BFAR personnel on board has any firearm.

After around one hour of hot pursuit, they saw/sighted one gray vessel heading towards their direction while hot pursuit was still in progress.  He heard the men of Commanding Officer DELA CRUZ trying to contact the gray vessel through radio, but it did not respond.

He then tried to contact with the use of satellite phone BFAR higher officials (RD JOVITA AYSON, DR. ALMA DICKSON and DR. NILO KATADA) but failed due to poor signal.  Commanding Officer DELA CRUZ decided to disengage from the hot pursuit due to the suspected fishing vessel’s persistence to escape and the approaching gray vessel and the big fishing vessel earlier spotted, which they suspected to be near the vicinity.  They started sailing towards Port Irene, Sta. Ana, Cagayan to get also the radio beacons that they came across earlier, but the radio beacons were no longer there.

They arrived at Port Irene, Sta. Ana, Cagayan at around 7:00 PM of 09 May 2013.

After viewing three (3) video footages showing the operation conducted by the PCG while pursuing the foreign fishing vessel on 09 May 2013, he confirmed that the same show their operation conducted while trying to chase the suspected Taiwanese fishing vessel.  It appeared to him that the suspected Taiwanese fishing vessel’s first attempt to ram MCS-3001 occurred before the PCG fired warning shots. That instance, however, was not captured by the video, but only the occasion when someone from the PCG shouted, “FIRE, FIRE, FIRE, FIRE, FIRE!”. After the shouts, he heard one gun shot that was followed by another after a few seconds. The second attempt to ram appeared to happen when the suspected foreign vessel nearly stopped and they almost got too close to the former. But when they were preparing to board, they noticed the smoke coming out from the suspected fishing vessel, seemingly revving up its engine, then, it maneuvered forward, as if it was trying to ram MCS-3001. This incident may be noticed in the first video footage.

During the first seeming attempt to ram MCS-3001, he was inside the pilot house of MCS-3001, where he could see the suspected foreign fishing vessel.  In the second seeming attempt to ram MCS-3001, he was already outside the pilot house, at the astern part of MCS-3001, where he also had a clear view of the suspected foreign fishing vessel.

He averred that the first seeming attempt to ram that was not captured by the video took place around 10:00 AM, when they spotted the suspected foreign fishing vessel and when it maneuvered crossing the path of MCS-3001.The said suspected Taiwanese fishing vessel came from the left side of MCS-3001. The two vessels never collided though.  The PCG were trying to contact the suspected foreign fishing vessel through radio and later, through the use of a siren/horn.

SN1 ROY INFANTE y HAVERIA in his sworn statement[60] dated 17 May 2013 avers that he is a Seaman First Class (SN1) of PCG and formerly assigned at DA-BFAR MCS-3001 as Quartermaster whose functions were preparing voyage plan and plotting coordinates in nautical chart and reflecting the voyage details in the steaming logbook. He was also in-charge of determining the position in Video Plotter/Electronics Plotting Aid and radar of the vessel.

When BFAR MCS-3001 was sailing at Balintang Channel, he was already asleep, as he was off duty at that time since their tour of duty is only four (4) hours each. He assumed his duty at around 9:45 AM of 09 May 2013 because the GQ (General Quarters) was announced, entailing that they should proceed to their respective stations for emergency and battle ready stations.

He was stationed at the bridge and there, he noticed two (2) suspected Taiwanese vessels. He did not notice what direction said vessels were heading because he was busy plotting the position of BFAR MCS-3001. Then, he noticed that the smaller fishing vessel was getting near BFAR MCS-3001 and the bigger vessel was already far.

Their Commanding Officer, through public address system, announced their identity and their intention to board, but the suspected Taiwanese fishing vessel did not comply. That time, BFAR MCS-3001 was around 44 nautical miles East of Balintang Island and the suspected Taiwanese fishing vessel was within the Exclusive Economic Zone (EEZ) of the Philippines.

During the second PA (Public Address) and siren/horn by the BFAR MCS-3001, the suspected Taiwanese fishing vessel stopped and MCS-3001 was able to stay close to it for boarding and inspection, but it suddenly maneuvered backward, its front heading their direction. It moved further from MCS-3001 and then approached again. MCS-3001, on the other hand, moved forward and made a left turn, and then, the pursuit started.

Then, their Commanding Officer ordered to make a warning shot and their companion obeyed. He then put in the chart the position of their vessel.  Despite the warning shot, the suspected Taiwanese fishing vessel continued to get away while being pursued. Their Commanding Officer ordered, “Fire effect at engine room”. This means “to fire at the astern part of the ship where the engine was assumed to be located”.  Subsequently, he heard MCS-3001 fire a caliber .30 machine gun towards the stern of the suspected Taiwanese fishing vessel. Still, the smaller fishing vessel did not stop and the chase continued. He observed that the vessel was trying to make a circular movement to have good angle in bumping BFAR MCS-3001. The alleged attempted ramming happened several times while he heard occasional single gunshots.

They later observed that the said smaller fishing vessel has a bulbous bow and long pointed frontage. He believed that the bulbous bow and the long pointed frontage could penetrate and destroy MCS-3001 and eventually submerge the latter in the process.

Thereafter, his companion sighted, through a binocular, a big gray vessel heading towards their direction. The Commanding Officer decided to disengage from the pursuit to forestall ramming by the suspected Taiwanese fishing vessel. His companion tried to contact through radio the approaching gray vessel to verify if the same is a Philippine warship vessel, but the call was not acknowledged. Afterward, his companion from BFAR RO2 QRT called their Director, but failed. They also tried to contact the Headquarters, PCG with the use of satellite phone, but failed due, perhaps, to poor signal.

Thus, their Commanding Officer decided to pull out from the area and return to Port Irene, Cagayan. While sailing or traversing along the seas towards Cagayan, they were trying to locate any buoy left by the suspected Taiwanese fishing vessel but they could not find any.  They arrived at Port Irene around 6:55 PM of 09 May 2013.

RONLEY ADDUN y LIBRANDO,[61] in his uncounseled and unsubscribed statement, avers that he is connected with the Law Enforcement Quick Response Team of the BFAR and has been with said office for one year and one month as a job order employee.

On 09 May 2013, he was on board MCS-3001, together with their team leader and officer-in-charge of the Licensing Regulatory and Law Enforcement Division, ARSENIO BANARES, JIMMY VELUYA, BFAR MRG and more than ten (10) members of the PCG.  However, the only ones he could recall were Commanding Officer ARNOLD DELA CRUZ, Ex-O MARTIN BERNABE and NOEL B. RAMOS.

On the night of 08 May 2013 until the following morning, he was sleeping while on board MCS-3001. His companion JIMMY woke him up around 9:00 AM since there were sightings of the radio buoy object used by fishermen; it floats in the sea; orange in color and round in shape; underneath or below it are lines of hooks for fishing.

They then continued on sailing and they saw two (2) fishing vessels, one was small and the other one was a bit bigger, both white in color and the smaller one had Chinese characters on its body.  He heard from his companions that the same were Taiwanese fishing vessels.

Thereafter, they were alerted and they stayed at their respective stations. He stayed at the rear part of MCS-3001, near the rubber boat and watched the positions of the two fishing vessels. They were supposed to go after the bigger fishing vessel but the smaller fishing vessel approached MCS-3001.Hence, they pursued the smaller one. When they were pursuing the smaller fishing vessel, the PCG asked them (occupants of the smaller fishing vessel) to stop but they persisted on escaping. When the smaller vessel did not stop, the members of the PCG fired a warning shot, but, still, the vessel did not stop, so they continued chasing it. The smaller fishing vessel later stopped and they went closer to it, between two to three meters away. At that time, the Boarding Officers (SOG, BFAR Team Leader and Coast Guards) prepared for boarding, which did not, however, happen since the smaller fishing vessel’s engine started revving up. He then prepared to help in taking down the rubber boat, but it did not push through because they noticed the smoke coming out from the top of the smaller vessel, indicating that the same was maneuvering to leave. The smaller vessel suddenly sped away and the pursuit resumed. During the pursuit, which lasted for more than one hour, he heard occasional gun shots.

He added that he could not determine who fired the gunshots while they were pursuing the Taiwanese fishing vessel, though he saw that there were six (6) persons holding rifles. He only knew the one named BENDO.

In his supplemental affidavit, he stated that his duties at BFAR-MCS-3001 are supported by Itinerary of Travel and Certificate of Appearance for Travel Order No. 05-086. He also identified the pictures of the PCG personnel who were with them at BFAR-MCS-3001, namely: [1] PO2 RICHARD FERNANDEZ CORPUZ, [2] SN1 ANDY GIBB R. GOLFO, [3] SN1 MHELVIN A. BENDO II, [4] SN1 HENRY SOLOMON, [5] SN1 DANNIEL C. FUNG, AND [6] SN1 EDUARDO Q. AGUILA.

When asked if there were PCG markings on BFAR-MCS-3001, he answered in the negative.

PCG CAPT RAMON S. LOPEZ[62], states that, on 09 May 2013, he received a phone call from Mr. David Chen of the Taipei Economic and Cultural Office (TECO), seeking for assistance for the Philippine Government to issue an entry permit to the Philippines to the Taiwanese Coast Guard who will rescue a Taiwanese fishing vessel in distress within the Philippine waters.

Allegedly, he requested Mr. Chen to send him a text message on the subject so that he may forward the same to Philippine authorities, who can make the appropriate action.  Immediately thereafter, he accordingly received a text message from Mr. Chen which states:

“Dear captain, Taiwan fishing vessel CT2-6519 was shot by a PI ship at N20 E123 at 10:30 am today. One Taiwan fisherman died, and the ship loses power. It is drifting at N20’8 E123’1. TCG vessel and another fishing vessel are on their way to rescue. TECO would like to seek your assistance in giving entry permit to our rescue ships and finding out the truth. Thank you.”

III. Ballistics Report

NBI’s Firearms Identification Division (FID) conducted the Ballistic Examination (See FID Report Nos. 83-15-5-2013; 99-3-6-2013[63]). The FID REPORT was prepared by HIYASMIN G. ABARRIENTOS, NBI Ballistician II and approved by ISABELO D. SILVESTRE, Jr., Officer-In- Charge, Firearms Investigation Division. Ms. ABARRIENTOS stated in her Sworn Statement[64]the following, among others:

1. She undertook the  following steps:

2. She described the serial numbers of the  evidence firearms/rifles  that  were submitted by  PCG, as follows:

TYPE OF FIREARMS

SERIAL NOS.
Browning .30 cal. Machine Gun

489066
Colt M-16 Assault Rifle

9063992
Elisco M-16 Assault Rifle

RP15637, RP015498, RP204217

RP194339, RP217716, RP018778

RP128640
Springfield M-14 rifle

5006
Winchester M-14 rifle

1037894
US M-14

608863, 1362663, 1372316

13995549

3. Ballistics examinations on the submitted evidence/specimen (firearms and shells) disclosed the following

CG-23

SN. 1362663
CG-21, CG-24 and CG-26

SN. 1037894
CG-19, CG-20, CG-22 and CG-25

SN.  5006

(Springfield)
CG-18 and CG-27

Insufficient Result

4. They (NBI team) went to Taiwan on 27 May 2013 to conduct further investigation;
5. On 28 May 2013, in Pintung City, Taiwan, their team conducted  “trajectory examination”  on the fishing vessel Kuang Ta Hsing No. 28 which resulted to the discovery of  Forty Five (45) entrance bullet holes; (Note: Details were discussed/shown  in  FID REPORT NO. 99-3-6-2013 Re: 83-15-5-2013 dated 31 May 2013 prepared by HIYASMIN G. ABARRIENTOS, NBI Ballistician II and approved by ISABELO D. SILVESTRE, Jr., Officer-In-Charge, Firearms Investigation Division);
6. She and Mr. ELMER NELSON D. PIEDAD marked the said  bullet holes and  photographed by Ms. LIGAYA  BANAWAN;
7. No measurement has been done to the said bullet holes  as there was no basis as the vessel is made of fiber glass;
8. They did not also insert plastic  rod to the  said bullet holes as they were tight and  the team was not allowed by  Taiwanese forensic team;
9. She was able to discover a 7.62 caliber bullet deeply embedded on a metal pipe located at the ceiling of the fish storage of the said vessel but was not allowed by the Taiwanese authorities to extract it. Ms. LIGAYA BANAWAN, however, took pictures of the said bullet;
10. On 30 May 2013, their team went to the Firearms Section  of the  Criminal Investigation Bureau of Taiwan to conduct “cross-matching  examination” of the evidence bullets  in the custody of the Taiwanese authorities and the “test bullets” fired  from various  evidence firearms that were turned over by the PCG to the NBI;
11. Taiwanese authorities had in their possession eleven (11) fragments, one (1) ogive and four  (4) bullets which were all placed in nine (9) sealed brown envelopes;
12. Said envelopes were opened by her, Mr. PIEDAD and Ms. BANAWAN  in the presence of  Taiwanese authorities;
13. She was able to determine the  caliber of the four (4) bullets as coming from 7.62 mm caliber and  the one (1) ogive from a caliber 7.62 mm bullet. She was not able to determine the caliber of the eleven (11) fragments for definite identification;
14. Their team just adopted the markings of the Taiwanese authorities on the said pieces of evidence as they were not allowed to do their own markings. However, the Taiwanese authorities showed them a report  showing the  locations  where  they recovered the bullets;
15. Examinations on the specimens contained in brown envelopes with markings “2-2” and “52” from the bullet that killed HONG SHI-CHENG gave positive results to one (1) Springfield  cal. 7.62 mm, M-14 Rifle with Serial No. 5006. She based this conclusion on the records of the Taiwanese forensic experts, specifically the results of the DNA examination conducted by Taiwanese authorities on the bullet recovered in the engine room. The DNA  from the tissue samples recovered from the  said bullet matched with  that  of HONG SHI-CHENG; and
16. Another bullet contained in a brown envelope with marking “58”  gave positive results from .30 Cal. Machine gun with Serial No. 489066; and one (1) bullet contained in a brown envelop marked  “45” gave  insufficient results.

The NBI Firearms Investigation Report No. 99-3-6-2013 Re: 83-15-5-2013 dated 31 May 2013[65], showed among others, the following findings and conclusions:

“xxx Comparative examinations made on xxx deformed fired bullet, Caliber 7.62mm marked 2-2, 45, 52, xxx and the test bullets fired from xxx Caliber 7.62mm, SN-5006 xxx revealed the following results: a. Evidence deformed Caliber 7.62mm fired bullets marked 2-2 and 52 gave POSITIVE results to SPRINGFIELD M14 Rifle, Caliber 7.62mm with SN-5006; said evidence fired bullets were fired from this particular firearms. xxx”

Probers had established that the firearm (Springfield M14 rifle, Caliber 7.62 mm with SN-5006), which turned positive for FID Comparative examination, was used by SN1 EDRANDO AGUILA.[66]In both statements[67] executed by SN1 AGUILA, he identified and admitted that he carried and used the long firearm described as M14 Rifle with Butt No. 21, Serial No. 5006 during the shooting incident. He further alleged that he fired the said firearm three (3) times, one (1) at sea and the other two (2) at the hull of the said Taiwanese fishing vessel, where the engine room is located.

Ballistic Examination conducted by the Taiwan Criminal Investigation Bureau – Forensic Science Section (LAB Case No. G102051100100)[68]

The ballistic examination was conducted by senior examiner YENG TING CHEN, supervised by HSIEH CHANG LEE using the “TOOLMARK IDENTIFICATION UNDER COMPARISON MICROSCOPE”. The bullet specimens recovered from the vessel are currently kept at the laboratory of the Taiwan Forensic Science Section.

The bullets specimens examined are detailed as follows:

ITEM

DESCRIPTION

QUANTITY

1

 Exhibit No. 2-1, collected from the engine room

1

2

 Exhibit No. 2-2, collected from the engine room

1

3

 Exhibit No. 11, collected from the left side of the portside

1

4

 Exhibit No. 14, collected from the left side of the portside

1

5

 Exhibit No. 45, collected from the plastic bucket at the stern

1

6

 Exhibit No. 46, collected from the canvass in the plastic bucket which was at the stern

1

7

 Exhibit No. 52, collected from the plastic basket on top of the cockpit

1

8

 Exhibit A, handed over by Taiwan Coast Guard

1

EXAMINATION RESULTS:

  1. Exhibit No. 2-1 was fragmented lead core extruded from a full metal jacketed (FMJ) bullet. (Photo 1)
  2. Exhibit 2-2 was a deformed spent bullet tip broken from a 7.62 mm caliber full metal jacketed bullet. Four sets of rifling marks with right-hand twist were observed on the exhibit. (Photo 2)
  3. Exhibit No. 11 was a piece of metal jacket stripped from a full metal jacketed bullet. (Photo 3)
  4. Exhibit No. 14 were four fragments of lead bullet core. (Photo 4)
  5. Exhibit No. 45 was a piece of deformed spent FMJ bullet fragment. Four sets of rifling marks were observed on the surface. However, the direction of twist could not be determined because the fragment was severely deformed. (Photo 5)
  6. Exhibit No. 46 was the tip of a metal jacket stripped from a spent FMJ bullet. (Photo 6)
  7. Exhibit No. 52 was a deformed 7.62 mm caliber spent FMJ bullet. Four sets of rifling marks with right-hand twist were observed on the surface. (Photo 7)
  8. Exhibit A was a metal jacket fragment and lead core fragments from a spent FMJ bullet. (Photo 8)

In all the bullets/specimen subject of examination, Exhibits No. “2-2” and No. “52” were identified to be fired from the same gun barrel. On the other hand, Exhibits No. “45” and “A” were determined to be inconclusive with Exhibits No. “2-2” and No. “52”. Finally, Exhibits No. “2-1”, “11”, “14”, and “46” were found unsuitable for microscopic examination.

IV. Forensic Chemistry Report

Mr. GEORGE J. DE LARA and Ms. FELICISIMA M. FRANCISCO, both of Forensic Chemistry Division, NBI, Taft Ave., Manila, submitted their Chemistry Reports Nos. C-13-107 to C-13-121[69] dated 24 May 2013, pursuant to the request of Mr., ISABELO D. SILVESTRE, JR. todetermine the approximate date of last “discharge” of firearms that were turned-over by the PCG to the NBI. These are the results/findings of the chemistry examinations:

A. Microscopic and chemical examinations made on the swabbing obtained from the barrel of the following firearms gave POSITIVE RESULTS  for the presence of nitrites, nitrates, black particles and soot:

  1. One (1) SPRINGFIELD  M-14 Rifle Cal. 7.62 mm  with serial  no. 5006;
  2. One (1) COLT  Rifle, Cal. 5.56 mm with serial no. 9063992;
  3. One (1) ELISCO Rifle, Cal. 5.56 mm with serial no. RP015637;
  4. One (1) ELISCO Rifle, Cal. 5.56 mm with serial no. RP015498;
  5. One (1) ELISCO Rifle, Cal. 5.56 mm with serial no. RP018778;
  6. One (1) US M-14 Rifle, Cal. 7.62 mm with serial no. 608863;
  7. One (1) US M-14 Rifle, Cal. 7.62 mm with serial no. 1362663;
  8. One (1) US M-14 Rifle, Cal. 7.62 mm with serial no. 1372316;
  9. One (1) US M-14 Rifle, Cal. 7.62 mm with serial no. 1395549;
  10. One (1) WINCHESTER M-14 Rifle, Cal. 7.62 mm with serial no. 1037894;
  11. One (1) Browning machine gun, Cal.30 with serial no. 489066.

Comparative examinations made on the swabbing of the barrels of all the aforesaid firearms after their tests firing showed that they could have been fired within one (1) week prior to the date of examinations on May 15, 2013.

B. Microscopic and chemical examinations made on the swabbing obtained from the barrel of the following firearms gave NEGATIVE RESULTS for the presence of nitrites, nitrates, black particles and soot:

  1. One (1) ELISCO Rifle Cal. 5.56 mm with serial no. RP 204217;
  2. One (1) ELISCO Rifle Cal. 5.56 mm with serial no. RP 194339;
  3. One (1) ELISCO Rifle Cal. 5.56 mm with serial no. RP 217716;  and
  4. One (1) ELISCO Rifle Cal. 5.56 mm with serial no. RP 128640.

Chemistry Report No. C-13-124[70] conducted (ocular examination) on PCG vessel “DA BFAR MCS-3001” to determine the approximate distance of firing did not reveal any perforation.

Chemistry Report No. C-13-125[71] showed the following findings on the forensic chemistry examination conducted on Taiwanese fishing Vessel ‘KUANG TA HSING No. 28” to determine any signs of ramming:

  1. Presence of black sticky particles and linear, slight scratches on the starboard side extending through the starboard bow marked;
  2. Presence of scratches on the port beam near the stern;
  3. Presence of scratches on the port beam near the port bow;
  4. No indication of dents, crams, displacement of the bow and deformation of the deck.

REMARKS: based on the above findings there are no signs of ramming.

Chemistry Report No. C-13-123[72] showed the following findings on the forensic chemistry examination conducted on Taiwanese fishing Vessel ‘Kuang Ta Hsing No. 28” to determine the distance of firing. Ocular examination made showed several perforations located as follows:

MARKINGS

LOCATION

NUMBER OF PERFORATIONS
NBI-FCD-1 to 6 Front portion of stern

6
NBI-FCD-7 and 8 Wooden stool placed inside the port beam

2
NBI-FCD-9 Metallic lining on the portside of the port beam

1
NBI-FCD-10 Lower portion of the port side

1
NBI-FCD-11-31 Outside portion of the port side

21
NBI-FCD-32-34 Starboard beam

3
NBI-FCD-35-39 Back of the cockpit

5
NBI-FCD-40 Cabinet in the bow deck

1
NBI-FCD-41 Inside cockpit, right side

1
NBI-FCD-42 Plastic ware on top of Cabinet behind cockpit

1
NBI-FCD-43 Rice cooker on top of the Cabinet behind the cockpit

1
NBI-FCD-44 Wooden bar on the rooftop

1
NBI-FCD-45 Compressor on the rooftop

1

Examinations made on the swabbing on the areas immediately surrounding the perforations gaveNEGATIVE RESULTS for the presence of gunpowder nitrates.

REMARKS: Based on the above findings, the approximate distance of firing could be beyond thirty-six (36) inches.

V. Autopsy Report

Dr. RUPERTO J. SOMBILON, JR., Medico-Legal Officer of the NBI, a member of the investigation team sent to Taiwan, stated in his June 4, 2013 sworn statement[73] that he substantially concurs with the findings made by the Forensic Pathologist of Taiwan, Dr. PAN ZHI-XIN, as contained in the latter’s Forensic Report. He agreed with the findings of Dr. PAN relative to the: [1] cause of death; [2] size and location of the entry and exit wounds sustained by the deceased; [3] possible firearm that inflicted the injury, considering the size of entry/exit wounds and extent of damage on the body; and [4] trajectory of the bullet that caused the injury considering the location of entry and exit wounds.

During the conference with the Manila Economic and Cultural Office (MECO) personnel, Minister of Justice, Taiwanese Prosecutors, and their counterparts in Taiwan, Dr. SOMBILON requested for re-autopsy of the deceased fisherman. The said request was denied by the lead Taiwanese prosecutor, reasoning that the same could not be made under Taiwanese laws, but they agreed to have the Forensic Pathologist, who examined the deceased, testify in court when required.

A copy of the Autopsy Report and Death Certificate of the deceased fisherman was requested by DR. SOMBILON. However, instead of granting the request, the Taiwanese officials handed a document, entitled: “Institute of Forensic Medicine, Ministry of Justice Report of Examination No. 1021101517, case No. 325, Series of 2013, Yu Court Division, Office of the Prosecutor Pintung District Taiwan” (Forensic Report for brevity). The said documents contained a narration of the [1] Identity of the deceased, [2] Physical injuries sustained by the deceased and [3] Cause of death, among others, relative to the examination of the deceased fisherman.

Furthermore, four (4) copies of CD and DVD (two CDs and two DVDs) containing, among others, [1] the power point presentation that Dr. PAN prepared for the conference, [2] details of his report, [3] photographs of the external and internal examinations done on the deceased fisherman, [4] video coverage of the autopsy made inside a morgue, [5] and other relevant matters were given. Copies of the aforementioned Forensic Report including the copies of the CD and DVD re autopsy conducted were turned-over to the Investigator-on-case, Agent EDUARDO F. RAMOS, JR.

Examination Report by theTaiwan Institute of Forensic Medicine[74]

HONG SHI-CHENG (deceased) is 64 years old (born on 18 March 1949) male. He reportedly died on 9 May 2013 at around 1:00 p.m. in the sea located at N 20° 08” Latitude, E 123° 01” Longitude (around 170 nautical miles southeast of Oluanpi, Taiwan). Victim was on board fishing vessel “GUANG DA XING” when he died.

Deceased was allegedly shot to death during a shooting incident involving a Philippine Government vessel. As a result, the said fishing vessel lost power. The Executive Yuan, Coast Guard Administration, Coastal Patrol Headquarters, dispatched the Taiwan frigate to the reported site of the incident and, together with the “10032 boat” and the Tungkang Fishermen Association’s assistance, towed the fishing vessel back to Taiwan.

On 11 May 2013, victim’s body was autopsied in “Kaohsiung Funeral Parlor” at around 8:20 a.m. Post-Mortem findings (Autopsy Report No. 1021101517) show that the deceased died due to a high velocity, through and through gunshot wound in the lower neck area passing through the neck artery, trachea, esophagus, breaking out and crossing the 2nd – 6th vertebra, the aortic arc, upper lobe of the left lung, rupturing the upper right and lower right lobes of the lungs, causing hemorrhage in the “pneumothorax” and “hemothorax”, “hypovolemic” shock and respiratory failure.

No bullet or bullet fragment was found during the autopsy procedure, although some tiny bullet fragments were discovered on the digital X-ray. Nonetheless, a distorted “spitzer” type of fully copper-jacked bullet fragment, and a piece of lead bullet fragment were found at the scene (at the engine area of the vessel) were the deceased died.  The deceased had multiple superficial scratch wounds, scrape wounds and bruises, detailed as follows:

A. High velocity gunshot (through and through) wound:

  1. Shot wound entry location: Lower left area of the neck which is at the point of intersection between the 26 cm level below the topmost area of the head and the 2.8cm left side vertical midline of the front of the body.
  2. Description of the entry wound: A round broken wound about 0.8cm with marginal abrasion with widest width of 0.4cm shot at 2 o’clock direction. There were no muzzle imprint, soot or gunpowder stippling found in the wound opening.
  3. Path of the gunshot: Following the entry wound, the bullet penetrated the lower left area of the neck passing through the left neck artery, trachea, middle section of esophagus, the 2nd – 6thvertebrae, the aortic arc area, upper lobe of the left lung, rupturing the upper right and lower lobes of the lungs, rear portion of the sixth rib, and exiting through the upper left back scapula.
  4. Exit wound location: The bullet exited the upper left back scapula, formed in two adjacent irregularly shaped broken holes. One was in the intersecting area at 35 cm level line below the tip of the head and 5.5 cm vertical line along the back right middle line. The other was located at the intersecting area at 36.5 cm level line below the tip of the head and 6.5 cm back right middle line.
  5. Description of exit wound: The exit wound was formed in two adjacent locations characterized by irregularly shaped broken holes measuring 2.0 cm x 1.2 cm and 1.5 cm x .05 cm.
  6. Organ and organization damages of gunshot wound: bullet went through the lower left neck artery, trachea, esophagus, severely shattering and crossing the 2nd – 6th vertebrae, the aortic arc, upper lobe of the lungs, resulting to profuse hemorrhage in the “pneumothorax” and “hemothorax” (the right and left lungs caved in and, during the autopsy of the blood in the chest cavity, it was found that a lot of blood has been lost. Only 50 milliliters was inside the chest cavity).
  7. Gunshot wound path direction: From front to back and from top to bottom, then from left to right (determined based on human anatomy autopsy positions).
  8. Gunshot wound path angle: The gunshot wound path was at a body midline vertical angle downwards about 25 degrees.
  9. Gunshot wound path retrieved bullet head and fragments: None (the gunshot wound went through and through)
  10. Degree of Fatality: fatal wound

B. Scratch wounds: The base of the nose right area has two (2) scratch wounds, classified in the length as 1.5cm and 0.6cm.
C. Scraped wounds: The back area of the right shoulder has two (2) scrape wounds where skin was blistered, classified as 1.8 cm x 1.8cm and 1.1cm x 1.0cm. Lower back right area has one (1) scrape wound measuring 4.5cm x 3.5cm
D. Bruises: The front area of the right thigh has two (2) bruises classified as 4.0cm x 2.3cm and 1.0cm x 1.0cm.
E. Furthermore, the toxicology report showed that the blood specimen and urine sample from the deceased yielded negative results for alcohol, opiate, amphetamine, tranquilizers, and other common toxic substances.
It was concluded that because of the breaking out and crossing of the 2nd – 6th vertebra, a high velocity gun or machine gun caused the gunshot wound. The death of the deceased was considered by the Taiwanese examiner as “Homicide”.

Result of the DNA Profiling done by the Criminal Investigation Bureau – Forensic Biology Office (Lab Case No. 1020512001065)[75]

On 12 May 2013, Senior Examiner CHU SHENG YU with his Supervisor, LIU KUO LAN, conducted the DNA profiling of swab, collected from bullet/specimen No. 2-1 and 2-2, using the technology and amplification system, thus:

1)             DNA was quantified by real time PCR Technique using the Quantifiler™ Human DNA Quantification Kit and Quantifiler™ Y Human Male DNA Quantification Kit;

2)             Polymerase Chain Reaction was performed with AmpFLSTR® Identifiler™ PCR Amplification Kit (15 loci);

3)             Genetic loci were analyzed by capillary electrophoresis.

The reference sample of the victim (deceased) was analyzed by the Institute of Forensic Medicine, Ministry of Justice, Taiwan. The results of the analysis (DNA profile of victim) are as follows:

LOCUS

BONE OF VICTIM

(SHI CHEN HONG)

SWAB No. 2-1

SWAB No. 2-2

D8S1179

14,14

14,14

14,14

D21S11

30,31.2

30,31.2

30,31.2

D7S820

10,12

NR

10,12

CSF1PO

12,12

NR

12,12

D3S1358

14,16

14,16

14,16

TH01

6,9

6,9

6,9

D13S317

10,10

10,10

10,10

D16S539

12,12

12,12

12,12

D2S1338

18,24

18,24

18,24

D19S433

13,15.2

13,15.2

13,15.2

VWA

19,19

19,19

19,19

TPOX

8,11

8,11

8,11

D18S51

15,15

NR

15,15

Amelogenin

X,Y

X,Y

X,Y

D5S818

10,13

10,13

10,13

FGA

23,24

NR

23,24
Instruction: NR – no result

The results showed that the DNA profile of the swab, collected from bullet No. 2-1 was found to match the DNA profile of victim (deceased) at 11 genetic loci. While the DNA profile of theswab collected from bullet No. 2-1 was found to match the DNA profile of victim (deceased) at fifteen (15) genetic loci.

The probability of a randomly selected person from the Chinese in Taiwan having the same DNA profile in fifteen (15) genetic loci is estimated to be 4.75 x 10-20.

VI. Documents Secured from PCG and BFAR

VII. Photographs[91]

VIII. Summary of the statements given by the Taiwanese crew before Head Prosecutor CHEN-MING HSIEH at Taiwan Pingtung District Prosecutor’s Office (2:00 p.m. to 11:30 p.m.) on 27 May 2013.

There were four (4) male passengers on board Vessel 2, described as fishing vessel Kuang Ta Hsing No. 28 (CT2-6519). They were identified as:

  1. HONG YU ZHI – 38 y/o Ship Captain
  2. HONG JIE SHANG – 41 y/o crew/fisherman, brother-in-law of ship captain ZHI.
  3. HONG SHI-CHENG – 64 y/o crew/fisherman, father of ship captain ZHI.
  4. IMAN BUCHAEN’ – 35 y/o Indonesian fisherman.

HONG YU ZHI’s Testimony[92]:

On 09 May 2013, 12:00 A.M. on board their vessel, they started pulling in and collect their fishing line. It was their second time this year to catch fish in the said area.

At around 9:30 A.M., as they were about to return to Taiwan, their vessel was heading toward the east, within Taiwan territorial waters, when he noticed the Philippine vessel fast approaching to his right side. The said vessel did not make any whistle or warning broadcast so he continued moving forward. He woke up his brother-in-law SHANG, who was then sleeping, along with his father and an Indonesian fisherman. He continued slowly traveling, when at about 20 to 30 meters, the Philippine vessel overtook and approached their left rear side. He heard gunshots, and then he quickly left (speed up his vessel) to escape to avoid paying money to the PCG.

He then went to the cabin and put the vessel on autopilot and placed the throttle at full speed. He saw his brother-in-law, SHANG, make a call using their satellite phone in the cabin and, then, all of them hid in the engine room located directly underneath the driver’s seat in the middle of the vessel.

The sound of gunshots was intermittent, as he heard the shots hit their vessel.

After half an hour after the attack, as they were then crouching at different areas of the engine room, his father, HONG SHI-CHENG, stood up and looked at the entrance of the engine room, at which time he was shot. After the attack, at around 11:33 A.M., he noticed that their vessel’s steering rudder hydraulic oil was depleted. They then radioed for help to the fishery station. They floated until a ship came and towed their boat. He denied ramming the Philippine vessel, as the latter’s vessel is big. He denied owning the floating buoy in the said area and wishes to file a murder case relative to the said incident.

In his additional statement dated 29 May 2013,[93] ZHI stated that, while the boat was moving, they move backward/in reverse, and then they heard gunshot; after which, they move forward toward northeast direction to escape the gunshots; they heard no warning horn from the PCG; and although they plan to allow the PCG to check their vessel, they decided to run, as they are scared after hearing the gunshots. He denied bumping the PCG vessel, neither did they feel hitting them after they hid at the engine room. He was in the cockpit getting the remote to manually pilot the boat after the rudder box was broken when he heard his father cry. Then his brother-in-law informed him that his father was shot.[94]

HONG JIE SHANG’s (crew/fisherman and brother-in-law of ship captain ZHI) testimony[95]:

At around 5 or 6 in the morning, while their vessel was closer to the north of Taiwan, and after packing away all the fishing lines as they ran out of bait, he, together with HONG SHI-CHENG and one overseas worker, went to sleep. Their ship captain ZHI rested for a while and put their vessel on autopilot towards the direction of Taiwan.

Before the incident, ship captain ZHI woke him up and told him to look and determine the approaching vessel about forty (40) to fifty (50) meters from their left side.

Without hearing any warning or whistle sound/broadcast from the said approaching vessel, he eventually identified the same as a Philippine vessel, which was apparently trying to board their vessel. He then called his wife to inform her about the Philippine vessel, as he believed that the latter may detain them so his wife would know in advance.

While at the cabin and continuing their travel, he heard two gunshots from the Philippine vessel, which was then at the left rear side of their vessel. Their vessel stopped and, when the PCG wanted to board, they maneuvered a reverse backward motion to prevent hitting the Philippine vessel and then sped up towards north east direction. The Philippine vessel then chased them.

They all went hiding down at the engine room. They were sitting at the engine room when they heard the intermittent sound of gunfire. His father-in-law, HONG SHI-CHENG, stood up, stepped on a taller piece of wood and stuck his head out to see if the Philippine vessel had already left, when a bullet struck him. CHEN screamed and fell down. He told the latter that he was bleeding.

They came up later after noticing that the vessel’s steering wheel was broken and no vessel was following them. He also noticed that CHEN was shot at the neck and has one hole at the back. At 3:00 P.M., another vessel assisted them until they reached Liu Chou Island. He denied ramming the Philippine vessel. They want justice done.

IMAN BUCHAEN’s Testimony[96]:

Buchaen started working in Vessel 2 for a week. At the time of the incident, he was then sleeping and was awakened by the ship captain HONG YU ZHI. When he got up, he saw the Coast Guard on another vessel fire their guns at their boat. ZHI asked him to hide down the engine room and, eventually, all of them hid.

He then heard gunshot while the Coast Guard vessel proceeded in chasing them. He also heard no sound of a horn being sounded by the other vessel. From the machine room, HONG SHI-CHENG checked the vessel chasing them then the latter was shot in the neck and the bullet came out of his back. When he came out of the machine room, he no longer saw the other vessel.

Allegation that the members of the PCG were laughing during the shooting incident

Several published news articles reported that some members of the PCG on-board BFAR MCS-3001 were allegedly laughing while shooting at the Taiwanese fishing vessel.

The Pambansang Lakas ng Kilusang Mamamalakaya ng Pilipinas (Pamalakaya) reportedly called on the DOJ to be objective in the conduct of its investigation of the shooting-to-death of a Taiwanese fisherman by members of the PCG near Balintang Channel early last month. The group saidmembers of the PCG, who were reportedly caught on video laughing as they fired upon the Taiwanese fishing boat, killing HONG SHI-CHENG, 64, the father of the boat’s skipper, should be charged. The source of the group, who allegedly had seen the video of the PCG shooting, said the PCG acted unprofessionally and they were laughing while they were shooting the Taiwanese fishing boat, Kuang Ta Hsing No. 28. The article further stated that said video showed the fishing boat taunting the PCG. After sailing side-by-side with the MCS-3001, a patrol boat owned by the BFAR but manned by the PCG, the fishing boat peeled away and moved in “circles, as if daring the Coast Guard vessel to come after it.”  Members of the PCG fired shots at the Taiwanese fishing boat and killed a 64-year-old fisherman, and apparently, not in self-defense.[97]

An investigation into these allegations, including a viewing of the video footage submitted for examination by the PCG, negates allegation of laughing by the PCG personnel while they were shooting at the Taiwanese fishing vessel.

There is, however, an identified scene in the aforesaid video footage where one Coast Guard personnel appears to be smiling. The Coast Guard personnel was later identified as SN1 SUNNY MASANGKAY Y GALANG. When asked why he was smiling, he explained during the “clarificatory conference” held at the NBI Conference Room on 24 May 2013 that he smiled when his rifle jammed and cannot be used at the moment the “fire for effect the engine” order was given. The said jamming incident was stated by SN1 MASANGKAY in his sworn statement dated 17 May 2013.

V. DISCUSSION/ANALYSIS:

The right of the state to protect itself against unwarranted intrusion in its territory is a recognized right among nations of the world.

The Philippines, as a signatory to relevant treaties, had incessantly made known to the world its intention to respect the similar right of other states.

On the other hand, enforcement of Philippine maritime laws had been religiously imposed to such extent as the law may allow with the utmost observance of the rights of individuals being respected. The incident in Balintang Channel does not, in fact, detract from the government’s unwavering commitment to balance the State’s rights and the individual’s rights, whether a Filipino citizen or foreign national.

The Balintang Channel incident has raised awareness on the observance of established rules of Maritime Law Enforcement (MARLEN) operations in territorial waters within the exclusive jurisdiction of the Philippines. The question raised, however, is whether such MARLEN operation should have resulted in the death of an individual, given the circumstances obtaining in the present case, as revealed by the probe thus conducted.

At the outset, it may be stressed that there are enough safeguards to prevent the occurrence of such incident.  To name a few, these are:  UNCLOS 1982, Rules of Engagement (ROE) used in the conduct of Maritime Law Enforcement (MARLEN) Operations 2012, USCG Boarding Officer’s Manual, etc.

The probe, therefore, tried to elicit vital information on whether such mandatory standard operating procedures were observed when the PCG personnel on board DA-BFAR MCS-3001 conducted MARLEN operation against the Taiwanese fishing boat Kuang Ta Hsing No. 28, which was at the time suspected of being engaged in illegal fishing within the country’s territorial waters, eventually leading to the death of HONG SHI-CHENG, a Taiwanese national.

A.   COMPLIANCE WITH THE RULES OF ENGAGEMENT

Maritime Law Enforcement (MARLEN) Operations generally connotes PCG operationsconducted against specific violations of penal laws (i.e., customs, fisheries, forestry, dangerous drugs, firearms, piracy, human smuggling and environmental laws) and other maritime violations committed within the maritime jurisdiction of the Philippines.

The probers, therefore, considered inquiring into the enforcement actions taken by the PCG personnel on board DA-BFAR MCS-3001.

The provisions of the Rules of Engagement (ROE) in the Conduct of Maritime Law Enforcement (MARLEN) operations are contained in HPCG Circular No. 01-12 dated 20 January 2012, which provides for the standard procedures to be observed for all MARLEN operations. The same delineates the limitations and circumstances under which PCG personnel may initiate and prosecute engagement through the use of well-defined appropriate force over vessels and their crew during such operations. The guidelines and procedures issued also aim to ensure that the conduct of MARLEN operations is within the bounds of law.

Is the use of deadly force allowed under the circumstances? Can the PCG crew be held liable for the resultant death of the Taiwanese fisherman? Can PCG personnel on board DA-BFAR MCS-3001 validly claim self-defense?

At the outset, it must be borne in mind that Sec. 87 of RA 8550, or the Philippine Fisheries Code of 1998, provides that the mere entry of any foreign fishing vessel (FFV) in Philippine waters already constitutes prima facie evidence that the vessel is engaged in fishing or poaching in Philippine waters. Furthermore, Department of Agriculture Fisheries Administrative Order (DA-FAO) 200, s. 2000 provides the following insofar as the entry of an FFV is concerned:

SECTION 3.Prima facie Evidence of Poaching.– The entry of any foreign fishing vessel in the Philippine waters shall constitute a prima facie evidence that the vessel is engaged in poaching in Philippine waters under the following circumstances:

(a) Entry of an FFV into Philippine waters under the following circumstances:
(i) Navigating with its fishing gear deployed and/or not stowed;
(ii) Navigating with an irregular track or route;
(iii) Navigating through Philippine territorial waters without prior notice to, clearance of, or permission from the appropriate Philippine authority;
(iv) Navigating in a manner that does not qualify as innocent passage or navigating outside traditional routes or in identified fishing grounds;
(v) Navigating without flying its national flag.

On the other hand, the Rules of Engagement (ROE) in the conduct of maritime law enforcement operations (HPCG Circular No. 01-12 dated 20 January 2012) cite instances where the use of deadly force may be justified, viz:

VII. GUIDELINES:

  1. The conduct of MARLEN operations should always be in accordance with the rule of law xxx
  2. Peaceful and persuasive efforts to demand obedience from target vessels/craft should always take precedence over the use of force.
  3. Safety and the preservation of life and property should be at all times, the primary consideration during the conduct of MARLEN operations.
  4. The use of deadly force should be the last resort and should only be resorted in self-defense or in defense of others against imminent threat of death or serious injury, to prevent perpetration of a particular serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives is present. xxx (underscoring supplied)

As provided in the ROE, in such instances where the use of force is allowed, the same must bereasonable in intensity, duration, magnitude and based on facts known at the time, (in accordance with the principle of proportionality).Further, the level of force must be limited to that which is reasonably necessary to counter the threat.

This provision on the use of deadly force is further elaborated by Guidelines VII.i of the ROE when it deals on circumstances authorizing the firing of warning shots and targeted firing at a hostile vessel or its crew. This portion of the ROE provides:

  1. In the event that it is necessary to use deadly force (firearms) to prevent hostile vessel/craft or its crew members from inflicting injury or harm to patrol vessel/craft crew or boarding team members, necessary warning shot(s) should be fired first prior to directly firing at the hostile vessel/craft or its crew members. In such case, the intention for the use of deadly force should only be primarily for self-defense and to disable the target vessel or the offending crewmembers and not cause serious bodily harm or death.

This part of the ROE, in turn, is premised on the definition of a hostile watercraft as provided inDefinition of Terms V.c.iii of the ROE, to wit:

iii. Hostile watercraft – a target vessel/craft is considered hostile if it manifests the following overt hostile actions:

  1. Increase speed, refuses to stop or conduct evasive action when challenged or signaled to stop;
  2. Perform a tactical maneuver towards or to a position with an unmistakable intention to attack or ram the patrol vessel/craft;
  3. Attacks or fires back with the use of any firearm or any other violent method at the patrol vessel/craft;
  4. The crew showing antagonism towards the boarding team and attempts to resist or fight back when being boarded.

As such, Guidelines VII.i of the ROE authorizing the firing of warning shots and directed or targeted shots to disable the hostile watercraft or offending crewmen presupposes the concurrence of the following conditions:

  1. The vessel is already considered a hostile watercraft under the definition of Hostile Watercraftunder Definition of Terms V.c.iii of the ROE;
  2. The use of deadly force is to prevent the hostile watercraft or its crew from inflicting injury or harm to the patrol craft or its crew;
  3. The use of deadly force should be primarily for self-defense and to disable the target vessel and not to cause serious bodily harm or death.

Taking all these provisions of the ROE together, viz., Definition of Terms V.c.iii on the definition of aHostile Watercraft, Guidelines VII.d on the presence of imminent and grave threat to life before deadly force can be used, and Guidelines VII.i on the application of deadly force in the form of warning and targeted shots to disable a hostile vessel or its crew, it is clear that considering the subject vessel a hostile craft IS NOT, by itself, sufficient justification for the use of deadly force. The use of deadly force on a hostile watercraft further requires the presence of imminent and grave threat to life coming from the watercraft. After these conditions are met, it is only then that the use of deadly force is authorized, but still, even then, only for purposes of preventing the infliction of injury or harm in self-defense by disabling the vessel or its crew, and while avoiding serious bodily injury or death to the crew of the hostile craft.

As culled from the sworn statements of the PCG and BFAR crew of BFAR MCS-3001, at the time of the discovery of the Taiwanese fishing vessel, the same can already be presumed to be poaching in Philippine waters per DA FAO 200, s. 2000 due to the following conditions:

  1. It was navigating in Philippine waters without prior notice to, clearance of, or permission from the appropriate Philippine authority;
  2. It was navigating in a manner that does not qualify as innocent passage or navigating outside traditional routes or in identified fishing grounds; and
  3. It was navigating without flying its national flag.

At the same time, pursuant to the PCG ROE, the commander of the PCG considered the Taiwanese fishing vessel a hostile watercraft as early as upon initial contact, when the fishing vessel, which was not flying any flag of nationality, sped towards the patrol craft and placed itself directly between the patrol craft and the larger fishing vessel, as if preventing the patrol craft from approaching the larger fishing vessel. Immediately after considering the fishing vessel a hostile watercraft, the PCG commander declared “General Quarters”. Clearly, from the very beginning of contact, the PCG commander already considered the vessel hostile and made this fact known to the rest of the crew when he ordered general quarters.

Thereafter, several other incidents arose which made the PCG commander not only consider the Taiwanese vessel as a hostile watercraft, but also as one presenting an imminent or grave threat to the lives of his crew. According to the PCG commander, what followed were three specific incidents when the fishing vessel attempted to ram the patrol craft:

  1. After initial contact and order of “General Quarters”, the PCG commander started initiating audible warnings to the Taiwanese vessel with the use of the PA system and boat horn/siren. After a while, the Taiwanese vessel slowed down its speed and appeared to comply with the announced orders of the PCG. However, upon approach of the PCG, the Taiwanese vessel full throttled forward and attempted to ram the patrol craft’s bow at starboard.
  2. This was followed by another chase, prompting the PCG commander to now order warning shots. After the firing of warning shots, the Taiwanese vessel again slowed down and finally came to a full stop. However, when the patrol craft was already next to the fishing vessel and while the PCG prepared for boarding, the Taiwanese vessel suddenly reversed and then full throttled forward, this time attempting to ram the stern of the PCG craft.
  3. Again, another chase ensued, during which the PCG commander finally gave the orders to shoot at the fishing boat for the purpose of disabling its engine. All the while, the Taiwanese vessel continued with its evasive maneuvers, then made a final attempt to ram the PCG craft’s bow at starboard. It is after this incident that the PCG commander ordered the shots to be directed at the rudder of the fishing vessel, the shooting at the hull or engine compartment appearing to be ineffective.

From the foregoing accounts of the PCG crew and other evidence at hand, the following can be considered as having been established:

1.  Taiwanese vessel was validly classified a hostile watercraft by the PCG Commander under the first classification of the ROE, where the vessel increases speed, refuses to stop, or conducts evasive action when challenged or signaled to stop. This is supported by almost all the material evidence at hand, viz.:

2. The PCG crew fired at the Taiwanese fishing vessel at intermittent intervals during the pursuit, but only after the occurrence of the specific incident where the fishing vessel stopped then full throttled to escape the PCG who were already preparing for boarding. This is shown in the following evidence:

3. The Taiwanese fishing vessel crew were not armed, and therefore did not present such kind of armed threat to the PCG-BFAR crew or patrol craft. This is shown in the following evidence:

While it is clear that the Taiwanese vessel was validly considered a hostile craft by the PCG Commander in accordance with the ROE, and validly presumed to be poaching in Philippine waters, this classification and presumption alone did not justify the employment of deadly force, as provided in the same ROE. In order to justify the use of deadly force, there must be an imminent or grave threat to life coming from the Taiwanese vessel. However, as stated, the Taiwanese fishermen have been found to be not equipped with any kind of firearm, whether pistols or rifles, and if they were, these were not fired or used against the PCG or their craft at any point of the encounter.

The only way, therefore, that the Taiwanese vessel could have posed a threat to the lives of the PCG crew and their craft is if indeed the Taiwanese vessel attempted to ram the patrol craft. In the first place, this is the alleged threat that was present in the mind of the PCG Commander when he finally gave the order to fire warning shots first, then eventually targeted shots on the hull of the fishing vessel, purportedly in accordance with Guidelines VII.i of the ROE.

Two questions arise from this allegation of attempted ramming made by the PCG Commander and his crew in their sworn statements:

  1. Was there an actual attempted ramming of the PCG-BFAR patrol craft made by the Taiwanese fishing vessel?
  2. If, indeed, there was an actual attempted ramming, did this constitute the kind of immediate and grave threat to the lives of the PCG-BFAR crew, so as to justify the operation of Guidelines VII.iof the ROE, authorizing the firing of warning shots and targeted shots to disable the fishing vessel?

Obviously, in order to answer the legal issue presented by the second question, we must first answer the factual issue presented in the first question. IN ORDER TO JUSTIFY THE USE OF DEADLY FORCE BY THE PCG ON THE TAIWANESE FISHING VESSEL AND ITS CREW, BOTH QUESTIONS MUST BE ANSWERED IN THE AFFIRMATIVE.

Based on the evidence gathered by the probers, there can be no definitive or indisputable factual finding that indeed there was an attempt on the part of the Taiwanese fishing vessel to ram BFAR MCS-3001. Because of this, there can also be no finding as to the question of whether the attempted ramming was of such kind as to constitute an immediate or grave threat to the lives of the PCG and BFAR crew. This being the case, the probers thereforecannot also conclusively infer from the evidence gathered any justification for the use of deadly force in order to affirm the valid application of Guidelines VII.d and VII.i of the ROE in the Balintang Channel incident.

The probers had tried to verify the allegations of attempted ramming based on several sources of information given to them. Among such sources are the video footages taken of the incident. The video footages do not categorically and indubitably show any ramming incident, whether attempted or consummated, so as to allow the probers to make a conclusive finding that indeed the Taiwanese fishing vessel attempted to ram the PCG-BFAR patrol craft.

As previously stated, the PCG Commander recalled that there were three particular instances when the fishing boat attempted to ram the patrol craft. The first attempt was made at the start of the encounter and before the firing of the warning shots, when the fishing boat slowed down as if to comply to boarding by the PCG, only to speed off and attempt to ram the starboard bow of the patrol craft. The second attempt was after the firing of warning shots, when the fishing boat fully stopped and the PCG patrol craft was able to get side by side in preparation for boarding, but the fishing boat suddenly reversed then full throttled forward, almost ramming the stern of the patrol craft. The third attempt was made after shots were already fired at the hull of the fishing boat, with the latter attempting to ram the patrol craft again on its starboard side.

No video footage indicates or shows the occurrence of the first and third attempts. With regard the second attempt, the video footages indicate the event as described by the PCG Commander, except the part on the attempted ramming. The segment of the video footage showing the PCG and BFAR personnel nearly boarding the Taiwanese fishing vessel for the conduct of inspection does not conclusively show, in the minds of the probers, the attempted maneuver of the Taiwanese vessel to reverse and full throttle for the specific purpose of ramming the stern of the PCG-BFAR patrol craft, as alleged by the PCG personnel in their sworn statements. The intent to ram is not clear, given the perspective offered by the video, and the fact that such maneuver could have been intended merely to escape, but not to ram, the Philippine patrol craft. As such, the probers cannot make any conclusive finding whether or not this portion of the footage is evidence of the attempted ramming. It is at best a disputable proof of the alleged ramming, and nothing more.

Absent any indisputable showing in the video footages of the alleged attempted ramming, the only available proof supporting the PCG claim are the bare allegations made in their sworn statements.

Whether or not the sworn statements of the PCG are more credible and deserve more credit than the testimonies of the Taiwanese fishermen with regard the presence or absence of any attempted ramming is not for this investigation to decide, in the absence of any positive corroborative evidence that would tilt the balance for or against the other side. Although it may be argued that credibility tilts in favor of the Taiwanese fishermen, in light of the fact that the video footage does not categorically show any attempted ramming, the fact remains that a video footage is essentially evidence of what happened while the video recorder was running, but not of what was happening during the considerable amount of time when it was not recording.

On the other hand, the Taiwanese fishermen themselves and their statements cannot be entirely relied upon because of questions on the truthfulness of some portions of their accounts. For example, their claim that the PCG never issued audible warnings, such as through the PA system and horn/siren, to call their attention, is highly incredible, given the clear evidence in the video footage that the PCG did issue such warnings a few times throughout the encounter. This claim is also inconsistent with their account because of its consequent implication, that if only such warnings were issued, the Taiwanese fishermen would have complied with the same. This is inconsistent with their admission that from start to finish of the encounter, the fishermen were intent on doing one thing only, escape and evade the Philippine patrol craft.

Another example is the incident where the fishing vessel stopped entirely, giving the impression that it was finally allowing itself to submit to the authority of the PCG and be boarded, only to full throttle suddenly in order to escape, if not to ram, the PCG vessel. The Taiwanese fishermen denied entirely that such an incident happened, even when the video footage categorically and undoubtedly show that such incident happened as claimed by the PCG crew, up to the point that the fishing vessel full throttled to escape. The only disputable portion of this account of the PCG is that in escaping, the fishing vessel likewise attempted to ram BFAR MCS-3001.

In the investigation interview conducted by the Taiwan District Court Prosecutor’s Office on May 22, 2013, the Captain of the fishing boat, Hong Yu Zhi, specifically denied that the above-described incident ever happened even when pointed out to him:

Question: According to newspaper reports, the other side said that you stopped the boat at the time, backed off a little then continued to move forward with the intention of ramming the vessel of the other side – did this happen?

Answer: No. I was coasting the waters; the Philippine vessel overtook my boat from the left rear side. At that time, I heard gun shots, it is not possible that I would ram them as their vessel is big, my vessel is small. I heard gun shots after they overtook us, my brother-in-law Hong Jie Shang thinks he heard a gunshot when they were in the process of overtaking us.[98]

It was only on May 29, 2013, through an additional statement, that Hong Yu Zhi finally admitted the occurrence of the above-described incident, i.e., that while the boat was moving, they move backward/ in reverse, and then they heard gunshot; after which, they move forward toward northeast direction to escape the gunshots; they heard no warning horn from the PCG; and although they plan to allow the PCG to check their vessel, they decided to run, as they are scared after hearing the gunshots. He denied bumping the PCG vessel, neither did they feel hitting them after they hid at the engine room. He was in the cockpit getting the remote to manually pilot the boat after the rudder box was broken when he heard his father cry. Then his brother-in-law informed him that his father was shot. [99]

It is most likely that the boat captain was forced to admit the occurrence of the described incident only after having been confronted with the fact of the existence of a video footage clearly showing the same. This shows that Hong Yu Zhi was not entirely candid in his sworn statements made before the Taiwan Prosecutor’s Office earlier in the investigation, when he knowingly concealed a crucial account of the incident, an account which he might not have eventually disclosed if it were not for the existence of the video footage showing the same to have actually taken place.

At the same time, the May 29, 2013 statement of the boat captain is also patently inconsistent with his previous statements. In the May 29 statement, Hong Yu Zhi claims that the fishing boat stopped because he actually intended to allow the PCG to check their vessel, but got scared after hearing the gun shots. This statement was made in an effort to explain his action of stopping the boat, only to reverse and full throttle forward to evade the patrol craft. In his earlier statements, he made it clear that he had no other intention from the very beginning other than to escape the PCG patrol craft because he did not want to pay any money to the PCG.

It is highly possible that this seeming duplicity reflected in the account of the Taiwanese captain is an attempt to mask his true intention all throughout the chase. It is apparent that in the face of hard evidence as shown in the video footage that he fully stopped as if to allow his boat to be boarded, he changed his story from one where they were intent on escaping to one where they were willing to be boarded.

But even this change in the Taiwanese captain’s story is not credible. Hong Yu Zhi claims that after stopping, he decided to full throttle forward and escape again after getting scared of the gunfire. However, it is clear from the video footage that when the fishing boat decided to stop apparently to allow itself to be boarded, no more shots were being fired by the PCG. Hence, there was no longer any reason for Hong Yu Zhi to get scared at this point. Yet, despite the cessation of gunfire at the time he fully stopped side by side with the patrol craft, he still decided to full throttle and escape allegedly because shots where fired. However, the video footage clearly shows that the PCG already ceased firing at this point.

This only raises the possibility that after all, Hong Yu Zhi feigned surrender in an effort to trick the patrol craft to get closer to it. For what purpose it is not readily apparent. At the minimum, it was merely to slow down the patrol craft for it to have a harder time to catch up with the fishing boat. At the maximum, it could have been for purposes of eventually ramming the patrol craft, as alleged by the PCG. This is why the finding on the attempted ramming is inconclusive, because the account of the Taiwanese captain himself does not foreclose an intention on his part to ram the patrol craft, given the evasive trick he employed of making it appear that he was complying to be boarded, only to suddenly speed off once the patrol craft was already very near it, as to put said patrol craft in a compromising, if not dangerous position.

Finally, the earlier statements of the Taiwanese captain that they were merely escaping is also inconsistent with the fact that the fishing boat never left the area of encounter all throughout the incident, indicating that the fishing boat was apparently luring the PCG into a cat and mouse game, taunting the PCG to chase them around the area, without the fishing boat entirely leaving the scene and heading towards the safety of Taiwanese territorial waters at full speed.

All told, the inconsistencies in the statements of the Taiwanese captain, coupled with the segment of the video footage showing his boat feigning compliance to be boarded, only to speed off at the last moment, makes the PCG claim of an attempted ramming not entirely implausible.

Be that as it may, despite these statements and actuations of the Taiwanese captain which tend to highlight his deceptive maneuvers designed to lure the PCG into a compromising position and therefore raise doubts on his credibility, the same are not still sufficient to establish a clear showing of imminent and grave threat to the PCG which the latter has the burden of proving. What is clearly shown in the video footages, however, is the Taiwanese fishing vessel pretending to stop for boarding, and thereafter being unrelentingly pursued by the PCG-BFAR patrol craft, presumably because the former has been trying to escape or evade the latter. Thus, insofar as this investigation is concerned, no conclusion can be made that the Taiwanese vessel and its occupants posed an imminent or actual peril to the lives, limbs or personal security of the occupants of MCS-3001, so as to justify the act of firing at the Taiwanese fishing vessel.

Given this inconclusive finding on the fact of ramming, the probers deem it best to leave the appreciation of the credibility of the testimonies of the witnesses, both of the PCG and the Taiwanese fishermen, to the office authorized by law to weigh the evidence in the determination of probable cause, i.e., the public prosecutor who will conduct the preliminary investigation of the case, or ultimately, the trial court if the case transcends the preliminary investigation stage.

In summary, therefore, the video footage taken of the incident merely elicited the following information:

a) The PCG allegation of an attempt to “ram” BFAR MCS-3001 turned out inconclusive in the video;

b) The PCG personnel fired warning shots to alert the Taiwanese fishing vessel, after previous signals using the patrol craft siren and PA system were made; and

c) The intermittent firing directed at the vessel was made while it was pursued by the PCG-BFAR patrol craft.

In conclusion, the foregoing observations rather show inconclusive proof of an actual and imminent threat to the lives of the PCG personnel so as to authorize the use of deadly force, thus establishing the presumptive lack of sufficient provocation and unlawful aggression to justify the use of firearms in self-defense. This inconclusiveness in the evidence in order to justify self-defense, on the other hand, establishes the presumptive culpability of the concerned PCG personnel in the killing of the Taiwanese fisherman for purposes of filing a case for preliminary investigation.

Thus, insofar as the implementation of the ROE is concerned, the PCG was shown to be compliant with the following mandates of the ROE:

  1. Valid categorization of the fishing vessel as hostile watercraft;
  2. Use of audible warnings such as challenges using voice radio communication, ship’s siren, public address system, flashing light and hand signal to get the attention of the target vessel; and
  3. Hot pursuit of the fishing vessel while the latter increased speed to escape and evade the Philippine patrol craft.

However, due to the dearth of evidence positively and categorically showing an attempted ramming by the Taiwanese vessel, the investigation showed that that PCG failed to comply with the ROE and on the requirement of the use of deadly force, i.e., imminent and grave threat to the lives of the PCG-BFAR crew posed by the hostile watercraft.

B.   DEFENSES AVAILABLE

It is admitted that the PCG commander ordered the firing of direct and targeted shots at the Taiwanese fishing vessel, which resulted in the death of the Taiwanese fisherman. Thus, where it is admitted that one is the author of the death of the deceased, it is incumbent upon said person, in order to avoid criminal prosecution, to conclusively prove any justifying circumstance to the satisfaction of the investigator. To do so, he must rely on the strength of his own evidence, and not on the weakness of the complainant’s evidence.

The following justifying circumstances under Article 11 of the Revised Penal Code and related legal principles are available to the PCG crew, given the context of the Balintang Channel incident:

  1. Self-defense;
  2. Fulfillment of duty or lawful exercise of office;
  3. Obedience to a lawful order issued by a superior; and
  4. Mistake of fact.

Self-defense

Under Section 1, Article 11 of the Revised Penal Code of the Philippines, the following does not incur any criminal liability:

“Anyone who acts in defense of his person or rights provided that the following circumstances concur;

“First. Unlawful aggression.

“Second. Reasonable necessity of the means employed to prevent or repel it.

“Third. Lack of sufficient provocation on the part of the person defending himself.”

The justifying circumstance of self-defense “is an affirmative allegation that must be proven with certainty by sufficient, satisfactory and convincing evidence that excludes any vestige of criminal aggression on the part of the person invoking it.” (People v. Nacuspag, 115 SCRA 172).

In the instant case, there is inconclusive proof of facts establishing the necessity for self-defense. This inconclusiveness, therefore, cannot exonerate the PCG crew from criminal liability at this early phase of the criminal prosecution process.

Unlawful aggression presupposes an actual or imminent danger on the life or limb of a person.  It is “actual” if there exists an attack with physical force or with a weapon. It presupposes an act positively strong, showing the wrongful intent of the aggressor, which is not merely a threatening or intimidating attitude, but a material attack (People vs. Incierto, 44 O.G. 2774). “Imminent unlawful aggression” means an attack that is impending or at the point of happening. It must not consist in a mere threatening attitude nor must it be merely imaginary.

As may be reiterated, the video recording of the incident as well as physical evidence secured raises questions and disputable allegations on the ramming incident, rather than settle this factual issue once and for all. There is no conclusive and indubitable proof of an actual or imminent unlawful aggression posed by the occupants (including the victim) of the Taiwanese fishing vessel that would risk the lives, limbs or personal security of the PCG members when the latter fired warning and directed shots at the former. At this stage, the evidence does not show unlawful aggression coming from the Taiwanese vessel at the time PCG-BFAR personnel tried to accost it.

It may also be worth to mention that the PCG and BFAR personnel claim that the threat from the Taiwanese vessel existed due to a “bulbous bow” (supposedly made of metal attached to the ship’s bow) that may be used to ram their vessel. An inspection conducted by the NBI team on the Taiwanese vessel, however, revealed that the same was made of fiber glass (including the hull of the vessel) and was installed to stabilize the vessel during strong waves or currents. Considering the relative disparity in size and mass of the two (2) vessels, any attempt to ram the Kuang Ta Tsing No. 28 into BFAR MCS-3001 vessel appears to be irrational as it would definitely cause serious damage to both vessels, if not more seriously on Kuang Ta Tsing No. 28, the latter being a smaller and lighter vessel.

In any case, the nature and purpose of a “bulbous bow”, whether for ramming or ship stability, is immaterial in the absence of evidence of an attempted ramming incident. The supposed nature of a “bulbous bow” as one for ramming is only relevant if there was an attempted ramming. An imminent or grave threat cannot come from a mere supposition, even if correct, that the target vessel is made for ramming and is constructed of steel material. There still has to be an actual, imminent and grave threat to life coming from an attempted or actual ramming of such serious nature as to threaten to inflict injury or harm on the patrol craft and crew, in turn justifying an act of self-defense through the use of deadly force.

Moreover, forensic chemistry examinations conducted on both Kuang Ta Tsing No. 28 and BFAR-MCS-3001 vessels revealed the absence of physical evidence on the alleged ramming. This, of course, does not likewise conclusively prove the absence of any attempted ramming, but only shows that insofar as the available physical evidence is concerned, the same do not support the allegation of an attempted ramming.

The reasonableness of means employed will depend on the existence of the first element, which is unlawful aggression; the absence of such circumstance will make such force employed as unreasonable.

The disquisition made by the DFA on the matter of “degree of the force” to be used against vessels that refuse to be boarded is enlightening:

The case is about the arrest of a trawler “Red Crusader” due to alleged illegal fishing.[106] After the Red Crusader was arrested and ordered to follow the Danish patrol vessel, the Skipper attempted to escape and secluded the boarding team of the Danish patrol vessel during a certain period. A lengthy chase ensued in which the Danish vessel fired repeated warning shots. Finally, shots were fired at the bridge and into the hull of the trawler, despite which the trawler succeeded in escaping.[107] The United Kingdom claimed that the force used had been excessive. The arbitral tribunal decided that the force used was “without proved necessity.”[108]It held that “other means should have been attempted, which, if duly persisted in, might have finally persuaded Skipper Wood to stop and revert to normal procedures.”[109]

The M/V Saiga served as a bunkering vessel supplying fuel oil to fishing vessels and other vessel operating off the coast of Guinea. It was arrested by Guinean Customs patrol boats the day after it supplied gas oil to three fishing vessels. The arrest took place at a point south of the maritime boundary of the exclusive economic zone of Guinea. In the course of action, at least two crew members were injured. On the same day, the vessel was brought into Conakry, Guinea, where the vessel and its crew were detained. Subsequently, two injured crew members were allowed to leave and the cargo was discharged in Conakry upon the orders of local authorities. No bond or other financial security was requested by Guinean authorities for the release of the vessel and its crew or offered by Saint Vincent and the Grenadines thus Saint Vincent and the Grenadines instituted the proceedings.

In its decision, the ITLOS stated:

“In considering the force used by Guinea in the arrest of the Saiga, the Tribunal must take into account the circumstances of the arrest in the context of the applicable rules of international law. Although the Convention does not contain express provisions on the use of force in the arrest of ships, international law, which is applicable by virtue of article 293 of the Convention, requires that the use of force must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances. Considerations of humanity must apply in the law of the sea, as they do in other areas of international law…These principles have been followed over the years in law enforcement operations at sea.

The normal practice used to stop a ship at sea is first to give an auditory or visual signal to stop, using internationally recognized signals. Where this does not succeed, a variety of actions may be taken, including the firing of shots across the bows of the ship. It is only after the appropriate actions fail that the pursuing vessel may, as a last resort, use force. Even then, appropriate warning must be issued to the ship and all efforts should be made to ensure that life is not endangered.”[111]

ITLOS further stated that:

“The basic principle concerning the use of force in the arrest of a ship at sea has been reaffirmed by the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982, Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks. Article 22, paragraph 1(f), of the Agreement states:[112]

“1. The inspecting States shall ensure that it’s duly authorized inspectors:

… (f) Avoid the use of force except when and to the degree necessary to ensure the safety of the inspectors and where the inspectors are obstructed in the execution of their duties. The degree of force used shall not exceed that reasonably required in the circumstances.”

xxx

“The Tribunal accepts the argument that in international law force may be used in law enforcement activities provided that such force is unavoidable, reasonable and necessary.” (Underscoring supplied)

These principles laid both in international law and jurisprudence show that law enforcement operation at sea requires avoidance of the use of force as far as possible and where force is unavoidable. It must not go beyond what is reasonable and necessary in the circumstances. Moreover, the force used should be “strictly necessary to achieve the legitimate objective and is proportionate and reasonable in all the circumstances”.

In the absence of conclusive proof of an actual or imminent threat to the PCG and BFAR personnel or their patrol craft, there appears to be no necessity for the degree of force applied by the PCG on the Taiwanese vessel.

Based on the Monthly Gunnery Report dated 11 May 2013[113] submitted by SN1 MHELVIN A. BENDO, the PCG personnel used 108 rounds of ammunition using various high powered firearms to compel Kuang Ta Hsing No. 28 to submit to the BFAR-PCG vessel.

Ballistic and Trajectory examinations of the Taiwanese vessel conducted by the NBI Team indicated that the vessel sustained forty-five (45) bullet entry holes and 12 exit holes located at ­deck, forecastle and stern (back) of the vessel.[114]

The Rules of Engagement on Maritime Law Enforcement operation require that the force applied be reasonable in intensity, duration and magnitude and based on facts known at the time, following theprinciple of proportionality.

In the absence of conclusive proof of an actual or imminent threat, it cannot be determined at this stage that the hail of bullets fired directly at the Taiwanese vessel to compel its submission was unavoidable and necessary, less so, as reasonable. The PCG personnel have known that their actuation had put at risk the lives of those on board and, in fact, resulted in the death of one of the vessel’s crew, given the inaccuracy of hitting the supposed target area due to several factors such as wind, swell of the wave, and movement of the vessels. In such situation, PCG personnel are prohibited to resort to shooting, as it will endanger the lives of the fishermen. Thus, in the absence of conclusive proof of actual aggression on the part of the Taiwanese vessel, the force employed (use of firearms) could not be admitted as reasonable or justified.

The last element of lack of sufficient provocation necessarily will be absent, considering that it comes hand-in-hand with the existence of unlawful aggression.

Thus, where the accused has admitted that he is the author of the death of the deceased, it is incumbent upon him, in order to avoid criminal prosecution, to conclusively prove this justifying circumstance (self-defense) to the satisfaction of the investigator. To do so, he must rely on the strength of his own evidence, and not on the weakness of the complainant’s evidence, for even if it were weak, it could not be disbelieved after the accused admitted the killing. The following Supreme Court decisions are worth mentioning:

“By invoking self-defense, appellant admitted committing the felonies for which he was charged albeit under circumstances which, if proven, would justify his commission of the crimes.”– (People vs. Mondigo, 543 SCRA 384; People vs. Paycana, Jr., 551 SCA 657, cited in page 1353, Supreme Court Reports Annotated Quick Index Digest, Part 2, 2008)

“In self-defense, whether complete or incomplete, the onus probandi is shifted to the accused to prove by clear and convincing evidence all elements of justifying circumstance.” – (People vs. Tabuelog, 542 SCRA 301; David, Jr. vs. People, 562 SCRA 22; Tarapen vs. People, 563 SCRA 577; People vs. Cuasay, 569 SCRA 870, cited in page 1353, Supreme Court Reports Annotated Quick Index Digest, Part 2, 2008).

With these procedural precepts, the burden of evidence is now upon CDR DELA CRUZ, et al. to prove the existence of self-defense during the subsequent phases of the criminal prosecution process, i.e., either during the preliminary investigation, to dispute probable cause, or during the trial proper, to dispute guilt beyond reasonable doubt.

Obedience to Lawful Order

In their given statement, PCG personnel claim that their act of directly firing at the Taiwanese vessel was only made upon orders of their Commanding Officer. Yet, to validly claim the defense of obedience to an order by a superior, the following elements must be present: a) an order has been issued by a superior; b) the order is for a legal purpose; and, c) the means used to carry out said order is lawful.

As a rule, for such circumstance to exist, both the person who gives the order and the persons who execute it must be acting within the limitations prescribed by law (People vs. Wilson and Dolores, 52 Phil. 919). In the instant case, the PCG was unable to show by sufficient evidence that the order to fire was lawful. They were not able to establish by convincing evidence the existence of aggression needed to justify the use of deadly force in accordance with the PCG rules of engagement (ROE). In fact, in the testimony given by SN1 MASANGCAY, he averred that he knew that warning shots (or even directly at the vessel) are prohibited but still fired his firearm due to the order of his Commanding Officer.

Thus, any claim of obedience to a lawful order could not be given indisputable credence in the absence of any conclusive proof on the attempted ramming, so as to establish obedience to a lawful order subsequent to a justified act of using deadly force in self-defense.

Lawful Fulfillment of Official Duty

The justifying circumstance of lawful fulfillment of duty is fully discussed in the case of Yapyuco v. Sandiganbayan (G.R. Nos. 120744-46, June 25, 2012). The circumstances to establish the defense of lawful fulfillment of duty, as discussed in Yapyuco, are as follows:

“The availability of the justifying circumstance of fulfillment of duty or lawful exercise of a right or office under Article 11 (5) of the Revised Penal Code rests on proof that (a) the accused acted in the performance of his duty or in the lawful exercise of his right or office, and (b) the injury caused or the offense committed is the necessary consequence of the due performance of such duty or the lawful exercise of such right or office. The justification is based on the complete absence of intent and negligence on the part of the accused, inasmuch as guilt of a felony connotes that it was committed with criminal intent or with fault or negligence. Where invoked, this ground for non-liability amounts to an acknowledgment that the accused has caused the injury or has committed the offense charged for which, however, he may not be penalized because the resulting injury or offense is a necessary consequence of the due performance of his duty or the lawful exercise of his right or office. Thus, it must be shown that the acts of the accused relative to the crime charged were indeed lawfully or duly performed; the burden necessarily shifts on him to prove such hypothesis.

xxx             xxx             xxx

“xxx [E]ven assuming that they were as the accused believed them to be, the actuations of these responding law enforcers must inevitably be ranged against reasonable expectations that arise in the legitimate course of performance of policing duties. The rules of engagement, of which every law enforcer must be thoroughly knowledgeable and for which he must always exercise the highest caution, do not require that he should immediately draw or fire his weapon if the person to be accosted does not heed his call. Pursuit without danger should be his next move, and not vengeance for personal feelings or a damaged pride. Police work requires nothing more than the lawful apprehension of suspects, since the completion of the process pertains to other government officers or agencies.

“A law enforcer in the performance of duty is justified in using such force as is reasonably necessary to secure and detain the offender, overcome his resistance, prevent his escape, recapture him if he escapes, and protect himself from bodily harm. United States v. Campo has laid down the rule thatin the performance of his duty, an agent of the authorities is not authorized to use force, except in an extreme case when he is attacked or is the subject of resistance, and finds no other means to comply with his duty or cause himself to be respected and obeyed by the offender. In case injury or death results from the exercise of such force, the same could be justified in inflicting the injury or causing the death of the offender if the officer had used necessary force. He is, however, never justified in using unnecessary force or in treating the offender with wanton violence, or in resorting to dangerous means when the arrest could be effected otherwise.  People v. Ulep teaches that –

‘The right to kill an offender is not absolute, and may be used only as a last resort, and under circumstances indicating that the offender cannot otherwise be taken without bloodshed. The law does not clothe police officers with authority to arbitrarily judge the necessity to kill. It may be true that police officers sometimes find themselves in a dilemma when pressured by a situation where an immediate and decisive, but legal, action is needed. However, it must be stressed that the judgment and discretion of police officers in the performance of their duties must be exercised neither capriciously nor oppressively, but within reasonable limits. In the absence of a clear and legal provision to the contrary, they must act in conformity with the dictates of a sound discretion, and within the spirit and purpose of the law. We cannot countenance trigger-happy law enforcement officers who indiscriminately employ force and violence upon the persons they are apprehending. They must always bear in mind that although they are dealing with criminal elements against whom society must be protected, these criminals are also human beings with human rights.’

“Lawlessness is to be dealt with according to the law. Only absolute necessity justifies the use of force, and it is incumbent on herein petitioners to prove such necessity. We find, however, that petitioners failed in that respect. Although the employment of powerful firearms does not necessarily connote unnecessary force, petitioners in this case do not seem to have been confronted with the rational necessity to open fire at the moving jeepney occupied by the victims. No explanation is offered why they, in that instant, were inclined for a violent attack at their suspects except perhaps their over-anxiety or impatience or simply their careless disposition to take no chances. Clearly, they exceeded the fulfillment of police duties the moment they actualized such resolve, thereby inflicting Licup with a mortal bullet wound, causing injury to Villanueva and exposing the rest of the passengers of the jeepney to grave danger to life and limb – all of which could not have been the necessary consequence of the fulfillment of their duties.” (Emphasis added)

In the instant case, the justifying circumstance of lawful fulfillment of duty remains disputable because of the absence of clear and categorical evidence that the order to use deadly force was made in accordance with the ROE. If the use of deadly force was made in violation of the ROE, i.e., even when there was no imminent or grave threat to the lives of the PCG-BFAR crew, then the same was unlawful, and cannot be successfully invoked as a justifying circumstance to exonerate the responsible PCG personnel from being charged with the offense committed. As previously discussed, all evidence gathered by the probers indicate the absence of positive and categorical proof of the existence of a lawful cause for the employment of deadly force.

Mistake of Fact

The defense of mistake of fact as discussed in Yapyuco is as follows:

“xxx In the context of criminal law, a ’mistake of fact’ is a misapprehension of a fact which, if true, would have justified the act or omission which is the subject of the prosecution. Generally, a reasonable mistake of fact is a defense to a charge of crime where it negates the intent component of the crime. It may be a defense even if the offense charged requires proof of only general intent. The inquiry is into the mistaken belief of the defendant, and it does not look at all to the belief or state of mind of any other person. A proper invocation of this defense requires (a) that the mistake be honest and reasonable; (b) that it be a matter of fact; and (c) that it negate the culpability required to commit the crime or the existence of the mental state which the statute prescribes with respect to an element of the offense.”

A mistake of fact defense also cannot be used if the defense is invoked in bad faith or assumed without due care and prudence. As such, mistake of fact as a defense is also incompatible and inconsistent if there is attendant negligence. Mistake of fact, by definition, connotes that the actor exercised the necessary degree of diligence in ascertaining the facts as they appeared to him, and therefore implies the absence of negligence.

The PCG can claim several mistakes of fact that led them to use deadly force against the fishing vessel. These are the following:

  1. The subject Taiwanese vessel featured a characteristic “bulbous bow”, or an elongated oblong-shaped protrusion at the front of the boat intended for ramming;
  2. The subject fishing vessel appeared to be made of steel, compared with the fiber-glass construction of BFAR MCS-3001; and
  3. The subject fishing vessel appeared to perform tactical maneuvers for ramming the PCG patrol craft.

Whether or not the above impressions claimed by the PCG in their sworn statements are sufficient to establish the justifying circumstance of mistake of fact at this fact-finding stage of the criminal investigation is not for the probers to decide, especially considering that such a defense is not even invoked by the PCG. Mistake of fact defenses, when invoked, are most properly ventilated in subsequent proceedings, not during a fact-finding investigation.

Generally, therefore, all the above discussed justifying circumstances being matters of defense, the same are best fully ventilated in the preliminary investigation stage or trial of the case, definitely not in the investigation phase, where the investigator is not even required to consider the defense of the suspects especially when there is already an admission that the suspects have committed the deliberate act which resulted in the killing of a victim, and where the justifying circumstance is disputable considering the limited evidence at hand. Matters of defense establishing justifying circumstances, where they are not clear and categorical in the facts of the case during the criminal investigation stage, are always best left for determination in the preliminary investigation, where the respondent is required and expected to submit all evidence available to it, including additional witnesses, which were not made available during the investigation, or in the trial of the case, in the event that the public prosecutor still finds probable cause.

It is not the office of a mere investigator to rule on the merits of justifying circumstances advanced by a party, especially if the same are not categorical, indisputable and uncontroverted with the evidence available during the investigation. Where doubt exists as to the viability and indisputability of the justifying circumstance, law enforcers and investigators are mandated to file the necessary complaint, as it is not within their authority to either determine probable cause or exonerate the offenders altogether. Both acts are within the authority of either the public prosecutor or the trial court to perform, not of the investigator.

C. OFFENSES COMMITTED

From the discussion above, several facts can be established so as to ascertain the persons liable for the consequences of the incident and the nature of their liability, in the absence of categorical and indisputable proof of any justifying circumstance. These are the following:

  1. The operation conducted by BFAR MCS-3001 at Balintang channel on May 9, 2013 was a valid law enforcement activity within the territorial jurisdiction of the Philippines;
  2. During the conduct of the operation, the Philippine patrol craft encountered a Taiwanese fishing vessel that indisputably increased speed, refused to stop, and conducted evasive action when challenged or signaled to stop;
  3. Because of these actuations, the PCG Commander of the Philippine patrol craft validly classified the Taiwanese fishing vessel as a hostile watercraft in accordance with the ROE;
  4. In preparation for boarding, the PCG used harmless audible warnings such as announcing their presence and intention through the PA system and blowing of the ship’s siren;
  5. After the warning shots, the Taiwanese fishing vessel slowed down and feigned to comply with the PCG orders by stopping and seemingly allowing itself to be boarded, only to full throttle and increase speed again in order to escape the PCG;
  6. At this point after the feigned surrender, the PCG commander gave the order to fire at the engine compartment of the vessel. Thus, the Taiwanese fishing vessel was directly shot at in intermittent intervals by the PCG crew using rifles and a machine gun;
  7. The direct and targeted shooting of the fishing vessel does not conclusively appear to have been preceded by an actual, imminent, and grave threat to the lives of the PCG crew; and
  8. The direct and targeted shooting resulted in the killing of a Taiwanese fisherman on board the fishing vessel, caused by a single bullet identified to have been fired from a specific weapon used by the PCG crew.

Homicide

Where the offender, at the outset, admits to committing the deliberate act which resulted in the killing of the victim, the burden of proving to show that the same was justified shifts to the offender. As stated in People v. Gemoya (G.R. No. 132633, October 4, 2000):

When an accused admits having killed the victim, the burden of proving his innocence is shifted to him. We ruled in People vs. Manlulu (231 SCRA 701 [1994]) that “by invoking self-defense, the accused admit killing Alfaro. The burden of proof is thus shifted to them. Their duty now is to establish by clear and convincing evidence the lawful justification for the killing.” xxx The intent to kill is likewise presumed from the fact of death, unless the accused proves by convincing evidence that any of the justifying circumstances in Article 11 or any of the exempting circumstances in Article 12, both of the Revised Penal Code, is present.

In the absence of conclusive and uncontroverted evidence of the existence of justifying circumstances, the act of firing at the vessel by PCG personnel violates the rules of engagement on maritime law enforcement operation and therefore unlawful. Any death as a result of such unlawful act will, therefore, make the doer liable for an intentional felony of Murder or Homicide.

An essential element of murder and homicide, whether in their consummated, frustrated or attempted stage, is intent of the offender to kill the victim immediately before or simultaneously with the infliction of injuries. Intent to kill is a specific intent which the prosecution must prove by direct or circumstantial evidence, while general criminal intent is presumed from the commission of a felony by dolo.

Murder is defined as the unlawful killing of any person (which is not parricide or infanticide) when qualified by any of the circumstances listed under Article 248 of the Revised Penal Code.

The elements of Murder are: 1) that a person was killed; 2) that the accused killed him; and 3) that the killing was attended by any of the qualifying circumstances mentioned in Art. 248, to wit:

The killing, to constitute Murder as distinguished from Homicide, must have been attended by any of the qualifying circumstances thus enumerated. In the absence thereof, the killing would constitute Homicide, Parricide, or Infanticide, as the case maybe.

In the established facts of the case, only three qualifying circumstances for murder appear to be material: taking advantage of superior strength, evident premeditation, and treachery. All circumstances are not present.

First and foremost, the attending circumstances, as shown by the pieces of evidence secured, would readily show that the incident happened while the BFAR-MCS-3001 was conducting legitimate maritime law enforcement, where deadly force (firearms) was wrongfully applied.

The Revised Penal Code provides for “abuse of superior strength”, as a qualifying circumstance for murder.[115] In order, however, that the same may be appreciated, there must be proof that the PCG personnel had purposely used excessive force out of proportion to the means of defense available to the person attacked (People vs. Cabiling, 74 SCRA 285; People vs. Sarabia, 96 SCRA 714; People vs. Cabato 160 SCRA 96; People vs. Carpio, 191 SCRA 108; People vs. Moka, 196 SCRA 378).

Abuse of superior strength is present whenever there is a notorious inequality of the forces between the victim and aggressor, assuming a superiority of strength notoriously advantageous for the aggressor selected or taken advantage of him in the commission of the crime. There must be evidence that they purposely sought the advantage or that they had deliberate intent to use this advantage.

Abuse of superior strength is not present in the instant case because the PCG crew did not purposely use excessive force out of proportion to the means of defense available to the Taiwanese fishermen. The firing was made intermittently, and even when made indiscriminately, it was not fully taken advantage of by the PCG personnel. The force employed was mainly aimed to disable the engine and not to maim or kill the fishermen.

At the same time, the incident between BFAR MCS-3001 and Kuang Ta Hsing No. 28 was unplanned and unpremeditated, which dispels the presence of such circumstance. The enforcement action made by the PCG was part of their mandate to protect the territorial waters of the Philippines against a fishing vessel already presumed under the law to be poaching in Philippine waters. It just so happened that in the process of enforcing Philippine fisheries law, the PCG personnel exceeded the lawful imposition of authority against the Taiwanese vessel. The provisions for firearms cannot also be considered as indicative of premeditation, as the firearms were regularly issued to the PCG crew as part of the official business of law enforcement, where firearms are an unavoidable and necessary tool given the nature of such business.

With regards to treachery, the PCG personnel admittedly directly fired at the vessel but that was after repeated warning shots and reasonable number of continuous announcement made in the PA system and the blowing of horn, establishing sufficient warning to the Taiwanese fishermen. The video footage taken during the incident belied the allegations of the crew of the Taiwanese fishing vessel that they were just fired upon instantaneously and without warning. The subsequent use of firearms (shooting) could not, therefore, qualify as “sudden and unexpected”, less so as having been consciously adopted as means or method to ensure the execution of the purpose of killing the victim and prevent probable defense that may be put up. The requisite of suddenness and unexpectedness of the attack to weaken the defense of the victim and ensure the execution of the killing is clearly absent to support treachery. In addition, the Supreme Court ruled that “xxx to constitute treachery, the means and methods of attack must be consciously adopted by the offender xxx.” [116]

In the absence of all the qualifying circumstances for murder, the primary offense that appears to be have been committed in the instant case is homicide, as all the elements to constitute its commission are present, to wit:  a) a person is killed; b) the person responsible did the killing without any justification; c) the person had the intention to kill, which is presumed; and, d) the killing was not attended by any qualifying circumstances of murder or by that of parricide or infanticide. When death resulted, the crime is homicide because with respect to crimes of personal violence, the penal law looks particularly to the material results following the unlawful act and holds the aggressor liable for the consequences thereof.[117]

It is worthy to note that the factual milieu in the instant case has similarities to the case of Salvador E. Yapyuco, et al. vs. Honorable Sandiganbayan and People of the Philippines[118] decided by the Supreme Court, in the following aspects:

First, both involved law enforcement agencies. In Yapyuco, the accused were members of the Integrated National Police (now Philippine National Police), Barangay Captains and Civil Home Defense Force, while the present case involves members of the PCG;

Second, in both cases they have a lawful ground to be in the vicinity. In the case of Yapyuco, they received information of reported presence of armed NPA in the area. In the Balintang Incident, PCG was patrolling the area on the basis of BFAR Sailing Order MCS-65-2013;

Third, in both cases, the law enforcement agents were carrying long firearms, specifically M-16 rifles and a .30 caliber light machine gun;

Fourth, in both cases, the law enforcement agents believed that the vehicles used by the victims made evasive maneuvers to avoid the law enforcement agents, although in the instant case, there are indications that the fishing boat in fact taunted the PCG patrol craft into a cat and mouse chase;

Fifth, both cases narrated that the law enforcement agents fired warning shots on the vehicles for them to stop;

Sixth, in both cases, the law enforcement agents shot at the vehicles used by the victims to disable the same. On the part of Yapyuco, they tried to shoot at the tires of the car, while in the present case, the PCG were aiming at the engine of the ship;

Seventh, in both cases, the law enforcement agents were of the impression that the victims were the aggressors and not the other way around. The victims did not heed warning shots but instead tried to escape the law enforcers; and

Lastly, in both cases, the law enforcers’ act of shooting the vehicle resulted in the death of the victim.

Although the Prosecutor’s Office filed an Information for Murder under Article 248 of the Revised Penal Code, the Supreme Court however downgraded the charges to Homicide, ruling in this wise:

xxxIn homicide (by dolo) as well as in murder cases, the prosecution must prove: (a) the death of the party alleged to be dead; (b) that the death was produced by the criminal act of some other than the deceased and was not the result of accident, natural cause or suicide; and (c) that defendant committed the criminal act or was in some way criminally responsible for the act which produced the death.  In other words, proof of homicide or murder requires incontrovertible evidence, direct or circumstantial, that the victim was deliberately killed (with malice), that is, with intent to kill.  Such evidence may consist in the use of weapons by the malefactors, the nature, location and number of wounds sustained by the victim and the words uttered by the malefactors before, at the time or immediately after the killing of the victim. If the victim dies because of a deliberate act of the malefactors, intent to kill is conclusively presumed.[138] In such case, even if there is no intent to kill, the crime is homicide because with respect to crimes of personal violence, the penal law looks particularly to the material results following the unlawful act and holds the aggressor responsible for all the consequences thereof. [139]  Evidence of intent to kill is crucial only to a finding of frustrated and attempted homicide, as the same is an essential element of these offenses, and thus must be proved with the same degree of certainty as that required of the other elements of said offenses.

xxxThe allegation of evident premeditation has not been proved beyond reasonable doubt because the evidence is consistent with the fact that the urge to kill had materialized in the minds of petitioners as instantaneously as they perceived their suspects to be attempting flight and evading arrest. The same is true with treachery, inasmuch as there is no clear and indubitable proof that the mode of attack was consciously and deliberately adopted by petitioners’xxx” (Emphasis added)

While the case of Yapyuco may not appear to be identical in all material aspects with the present case, it is still instructive on the nature of the liability of law enforcers who inflict bodily harm or death on suspected offenders without sufficient evidence of aggression coming from the latter so as to justify the use of deadly force. In the present case, there are indications which point to the plausibility of the PCG theory that the Taiwanese vessel was not merely attempting to escape, but was instead taunting the patrol craft into a cat and mouse chase. The evidence may not show categorical proof of an attempted ramming, but it also does not preclude the possibility that the intention of the Taiwanese vessel in using deceptive maneuvers was to ram the PCG patrol craft as perceived by the PCG commander.

However, despite the difference in some factual settings between Yapyuco and the instant case, the actual and imminent threat to the law enforcers to justify the use of deadly force remained uproven in both cases. In Yapyuco, the unjustified shooting was aggravated by the lack of any attempt to verify if the occupants of the vehicle were indeed armed NPA members. In the instant case, the unjustified use of deadly force was aggravated by the later indiscriminate firing, when the PCG appeared to have fired upon other portions of the side of the hull, instead of concentrated fire on the stern of the fishing boat. With death resulting from the deliberate acts of the law enforcers in both cases, the only offense that can be charged against them in accordance with the Revised Penal Code is homicide.

The following PCG personnel admitted, OR were shown to have involvement, in the shooting of the Taiwanese fishing vessel, to wit:

  1. Commanding Officer ARNOLD DELA CRUZ
  2. SN1 EDRANDO QUIAPO AGUILA;
  3. SN1 MHELVIN A. BENDO;
  4. SN1 ANDY GIBB RONARIO GOLFO;
  5. SN1 SUNNY GALANG MASANGCAY;
  6. SN1 HENRY BACO SOLOMON;
  7. PO2 RICHARD FERNANDEZ CORPUZ; and
  8. SN2 NICKY REYNOLD AURELLO.

The above-named PCG personnel appear to be culpable for the crime of Homicide based on the following findings:

  1. Taiwanese HONG SHI-CHENG died of a gunshot that came from one of the firearms used in shooting at the Taiwanese fishing vessel. The fact of death raises also the presumption, albeit disputable, of their intent to kill.
  2. The PCG personnel’s claim of self-defense[119] to justify the killing remains inconclusive, in light of the available evidence, more particularly the video footages of the incident as well as testimonies of surviving witnesses including forensic chemistry findings.
  3. In the absence of conclusive evidence to justify self-defense, the PCG personnel presumptively violated the Rules of Engagement (in the Conduct of Maritime Law Enforcement Operation, ROE-MARLEN) when they opened fire at the Taiwanese fishing vessel despite initial lawful interdiction made against the Taiwanese vessel.
  4. The PCG personnel were no longer performing their lawful mandate when they continuously fired at the Taiwanese fishing vessel, resulting in the death of a Taiwanese fisherman which, according to jurisprudence, automatically raises the presumption of an intent to kill.

Evidence to prove intent to kill in crimes against persons may consist, inter alia, in the means used by the malefactors, the nature, location and number of wounds sustained by the victim, the conduct of the malefactors before, at the time, or immediately after the killing of the victim, the circumstances under which the crime was committed and the motives of the accused. If the victim dies as a result of a deliberate act of the malefactors, intent to kill is presumed.[120]

Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. The elements of conspiracy are the following: (1) two or more persons came to an agreement, (2) the agreement concerned the commission of a felony, and (3) the execution of the felony was decided upon.

Proof of the conspiracy need not be based on direct evidence, because it may be inferred from the parties’ conduct indicating a common understanding among themselves with respect to the commission of the crime. The conspiracy may be deduced from the mode or manner in which the crime was perpetrated; it may also be inferred from the acts of the accused evidencing a joint or common purpose and design, concerted action and community of interest (People v. Fegidero, GR No. 113446, August 4, 2000; People v. Francisco, GR Nos. 118573-74, May 31, 2000). “While conspiracy need not be established by direct evidence, it is, nonetheless, required that it be proved by clear and convincing evidence by showing a series of acts done by each of the accused in concert and in pursuance of the common unlawful purpose.” (People vs. Barcenal, 530 SCRA 706; Go vs. Sandiganbayan, 521 SCRA 270)

The following circumstances had been taken in consideration to assess the PCG personnel’s probable liability. At the outset, it may be stated that the PCG personnel had acted with a similar purpose, as shown by the following:

  1. They fired more than one hundred rounds of ammunition at the fleeing Taiwanese fishing vessel, inexplicably a high volume of firepower used on an unarmed fishing vessel even when expended intermittently.
  2. There was a unity of objective to stop or prevent the escape of the vessel at all cost, resulting into indiscriminate firing during the latter part of the pursuit operations.
  3. One PCG member fired at the Taiwanese fishing vessel despite visibility of one of its occupants outside the cabin signaling the crew of the PCG to proceed to the starboard side of the Taiwanese fishing vessel, and no one among the PCG crew prevented the shooter from doing so or showed disapproval of such action.
  4. The intermittent and discriminate firing on a specific portion of the fishing boat regressed into indiscriminate firing on the side of the hull of the fishing boat during the latter part of the chase, even when the fishing boat appeared to have given up on its evasive maneuvers and decided to simply get as far away as possible from the patrol craft.
  5. Even assuming that the use of deadly force was justified at the beginning, the later indiscriminate firing showed that their common design was no longer to strictly follow the ROE by disabling the fishing boat while avoiding bodily harm on its occupants, but to disable the same regardless of the fact that the indiscriminate shooting would most probably cause serious bodily harm or death to those inside.
  6. There was an attempt to cover-up what actually transpired in the Balintang Incident as shown by the conflicting Monthly Gunnery Reports, bearing the same date, including the attempt to erase portions of the video footage taken during the incident.

COMMANDING OFFICER DELA CRUZ and his personnel were initially motivated by a legitimate law enforcement objective to prevent the escape of a hostile watercraft. However, in the course of pursuing such a legitimate objective, their collective act of firing at the fishing boat regressed into indiscriminate firing which disregarded a primary directive in the ROE, that the use of deadly force should not be for the purpose of causing bodily harm or death, but merely to disable the hostile watercraft. At the point of the indiscriminate firing, the PCG crew were no longer acting in lawful observation of the ROE, as any sensible and reasonable person is capable of discerning at that point that indiscriminate firing at a small fishing vessel will, in all likelihood, inevitably result not only in the disabling of the watercraft, but also in bodily harm or death of its occupants. Because of this, the collective act of the PCG personnel of indiscriminately firing at the fishing boat in disregard ofGuidelines VII.i of the ROE that deadly force in the given context should primarily be for the purpose of disabling the hostile watercraft and not to cause bodily harm or death, makes the PCG men equally liable for the resulting death of Hong Shi Cheng.

Obstruction of Justice

Finally, separate acts committed after the incident by identified members of the PCG crew also make them liable for obstruction of justice as penalized under PD 1829 (Decree Penalizing Obstruction of Apprehension and Prosecution of Criminal Offenders).

During the investigation, the video footages taken by SN1 Marvin Ramirez were submitted to the probers. Later on, as the investigation progressed, it turned out that what Ramirez submitted were spliced versions of the original footages taken of the incident. Ramirez did not submit the complete recording of the incident. What were originally submitted instead were selected portions, as Ramirez claims that he was instructed by the PCG Executive Officer, LTJG Martin Bernabe, to splice the portions of the video footages that tended to incriminate the PCG crew, viz., the portions which showed the crew firing at the Taiwanese vessel. LTJG Bernabe, in turn, told the probers that CO Dela Cruz ordered him to remove certain portions of the video.

Although the deleted portions were eventually submitted to the probers by the Coast Guard Internal Affairs Service contained in two compact discs, by then, the tampering of the evidence has already been done. And the fact that the original complete recordings were eventually submitted does not absolve Ramirez and Bernabe from liability in the commission of this offense. The act alone already constitutes destruction and suppression of record or document with intent to impair its verity, authenticity and availability as evidence in the investigation of a criminal case, regardless of the eventual submission of the complete versions thereafter.

Another attempt to tamper the evidence was made when SN1 Mhelvin Bendo, upon the orders of the PCG Commander, prepared a falsified monthly gunnery report of the PCG BFAR MCS-3001 crew which purportedly reflects the amount of ammunition expended by the PCG crew in the Balintang Channel incident. Consequently, two versions of the report were submitted to the investigation, both indicating the same date of 11 May 2013 or two days after the Balintang Channel Incident. The first report submitted to the investigation stated that only 36 rounds of ammunition were fired during the encounter, consisting of 18 rounds of .30 cal. used in the Browning machine gun, 6 rounds of 5.56 mm used in the M16 rifles, and 12 rounds of 7.62 mm used in the M14 rifles.

It was eventually discovered that the actual number of rounds used was 108.

This constitutes the act of making and presenting a record, document or paper with the knowledge of its falsity, and with intent to affect the course of the investigation. The misleading report was made apparently to give the impression during the investigation that the PCG crew spent a lesser amount of ammunition than what was actually used. This likewise constitutes tampering of material evidence in the investigation.

Both acts of splicing the video footages and submitting a falsified monthly gunnery report constitute the crime of obstruction of justice, for which the concerned officers and men should be held liable.

In connection with this, a continuing probe is being conducted to determine complicity of BFAR personnel, namely: ATTY. SAM AGALOOS, MR. ARSENIO BANARES, MS. ROWENA PASCUA and MR. ROMMEL DICIANO, who were reported to have conspired to mislead the probe. His Excellency will be informed as soon as all the pieces of evidence had been secured.

VI. RECOMMENDATIONS

We are, therefore, recommending the following actions:

1. The filing of criminal charges against:

for Homicide, defined and penalized under Article 249 of the Revised Penal Code, as amended.

  1. Commanding Officer ARNOLD E. DELA CRUZ, SN1 MARVIN RAMIREZ, LTJG MARTIN. L. BERNABE, and SNI MELVIN BENDO be charged for Obstruction of Justice under P.D. 1829.
  2. That appropriate administrative actions/proceedings be initiated against above-named PCG personnel in accordance with Sec. 16 of R.A. No. 9993 (An Act establishing the PCG as an Armed and Uniformed Service attached to DOTC).

[1]     Pursuant to the 14 May 2013 Memorandum from the Honorable Secretary of Justice, Re: directive of HIS EXCELLENCY, BENIGNO S. AQUINO III  for the NBI to conduct a probe into the 09 May 2013 shooting incident that resulted in the death of a Taiwanese fisherman, copy herein attached as Annex “A”.

[2]     https://en.wikipedia.org/wiki/UNCLOS.

[3] https://www.google.com.ph/search?q=philippine+territory+with+exclusive+economic+zone&biw=1366&bih=667&bav=on.2,or.r_cp.r_qf.&um=1&ie=UTF8&hl=en&tbm=isch&source=og&sa=N&tab=wi&ei=I6fUayKEsrprQf5YDYAg#facrc=_&imgrc=JIv4FNQSJbYsOM%3A%3B0FrfUGK_ekQW8M%3Bhttp%253A%252F%252Fi167.photobucket.com%252Falbums%252Fu157%252Fjibrael_2007%252FJibrael%2525202008%252Fmap4_projectedregimes.jpg%3Bhttp%253A%252F%252Fwww.timawa.net%252Fforum%252Findex.php%253Ftopic%253D12286.0%3B800%3B605.

[4]     Hereto attached as Annex “B”.

[5]     The exclusive economic zone is an area beyond and adjacent to the territorial sea, extending up to 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.See Articles 55 and 57 of United Nations United Nations Convention on the Law of the Sea, Montego Bay, Jamaica, 10 December 1982.

[6]     UNCLOS Article 56.

[7]     Section 87 of the Philippine Fisheries Code states, as follows:

 

“SEC. 87 Poaching in Philippine Waters – It shall be unlawful for any foreign person, corporation or entity to fish or operate any fishing vessel in Philippine waters.

“The entry of any foreign fishing vessel in Philippine waters shall constitute a prima facie evidence that the vessel is engaged in fishing in Philippine waters.

“Violation of the above shall be punished by a fine of One Hundred Thousand U.S. Dollar (US$100,000.00), in addition to the confiscation of its catch, fishing equipment and fishing vessel: Provided, that the Department is empowered to impose an administrative fine of not less than Fifty Thousand U.S. Dollar (US$50,000.00) but not more than Two Hundred Thousand U.S. Dollar (US$200,000.00) or its equivalent in the Philippine Currency.”

[8]     “SEC.  2. Declaration of Policy. – It is hereby declared the policy of the State

“a. xxx

“b. to limit access to the fishery and aquatic resources of the Philippines for the exclusive use and enjoyment of Filipino citizens’ xxx” (Sections 2, par. 2, Philippine Constitution).

[9]     “SEC.  124.  Persons and Deputies Authorized to Enforce this Code and Other Fishery Laws, Rules and Regulations. -The law enforcement officers of the Department, the Philippine Navy, the Philippine Coast Guard, Philippine National Police (PNP), PNP- Maritime Command, law enforcement officers of the LGUs and other government enforcement agencies, are hereby authorized to enforce this Code and other fishery laws, rules and regulations. Other competent government officials and employees, punong barangays and officers and members of fisher folk associations who have undergone training on law enforcement may be designated in writing by the Department as deputy fish wardens on the enforcement of this Code and other fishery laws, rules and regulations.”

[10]   Irini Papanicolopulu, “Enforcement Actions in Contested Waters.”

[11]   Young, 1979 as cited in Joyner, Christopher C. (1998).“Compliance and Enforcement in new international fisheries law.”Temp. Int’l & Compl.L.J. 271.

[12]   Mitchell, 1994 as cited in Joyner, C.C. (1998).

[13]   UNCLOS, Part V, Article 56 par 1(b).

[14]   UNCLOS, Part V, Article 56 (2). For example, a coastal State is required to provide access to its marine and fisheries under Article 62, if it has excess resources. Related to this is the neighboring developing States, geographically advantaged States, etc.

[15]   UNCLOS, Part V, Article 73 (1).

[16]   UNCLOS, Part V, Article 73 (2).

[17]   UNCLOS, Part V, Article 73 (3).

[18]   UNCLOS, Part V, Article 73 (4).

[19]   Legal Opinion of Prof. Harry Roque, Director of Institute of International Legal Studies of the University of the Philippine’s College of Law, hereto attached as Annex “C”.

[20]   See opinion, supra.

[21]   Indeed, it has been “adopted as a general rule of customary international law solidly rooted in the current practice of States” 147 Yearbook of the International Law Commission (1980, Vol. II (2), para. 26.

[22]     “SEC.14 Monitoring, Control and Surveillance of Philippine Waters. – A monitoring, control and surveillance system shall be established by the Department in coordination with LGUs, FARMCs, the private sector and other agencies concerned to ensure that the fisheries and aquatic resources in Philippine waters are judiciously and wisely utilized and managed on a sustainable basis and conserved for the benefit and enjoyment exclusively of Filipino citizens.”

[23]   Philippine waters – include all bodies of water within the Philippine territory such as lakes, rivers streams, creeks, brooks, ponds, swamps, lagoons, gulfs, bays and seas and other bodies of water now existing or which may hereafter exist in the provinces, cities, municipalities, and barangays and the waters around, between and connecting the islands of the archipelago regardless of their breadth and dimensions, the territorial sea, the sea beds, the insular shelves, and all other waters over which the Philippines has sovereignty and jurisdiction including the 200-nautical miles Exclusive Economic Zone and the continental shelf.

[24]   See MOAs between BFAR and PCG, herein attached as Annexes “D” and “D-1”.

[25]   See also Sec. 124 of R.A. 8550; Ibid.

[26]   Please see opinion of Prof. Harry Roque, supra.

[27]   First, Part VII, Section 1, Article 97(1) of UNCLOS.

[28]   Art. 94, Para. 7.

[29]   Art. 97, Para. 1-2.

[30]   Art. 97, Para. 3.

[31]   Art. 94, Para. 7.

[32]   Art. 304(e.g. Pollution 229); Preamble, last paragraph.

[33]   Bernaerts’ Guide to The 1982 United Nations Convention On The Law Of The Sea.

[34]   Letter dated 21 May 2013 addressed to NAMRIA, Annex “E”.

[35]   The National Mapping and Resource Information Authority (NAMRIA), is an agency that surveys and maps the land and water resources of the Philippines including the mandate to make available to both the public and private sectors with mapmaking services as well as geographic and resource information. NAMRIA is also responsible for the surveying and charting of the Philippines’ maritime zones/areas which are the archipelagic waters, contiguous zone, Exclusive Economic Zone (EEZ), Extended Continental Shelf (ECS), and territorial sea. The agency regularly conducts hydrographic, bathymetric, oceanographic, and geophysical surveys wherein marine geographic information are presented in the form of nautical charts, bathymetric maps, thematic maps, tide and current tables, and special maritime publications. These are basic requisites for safe and efficient maritime travel and trade, marine environmental protection, infrastructure engineering, military defense, and scientific studies and researches. In addition, a vital function of NAMRIA involves the delineation of the national maritime jurisdiction in accordance with the provisions of the United Nations Convention on the Law of the Sea (UNCLOS).

[36]   Joint Affidavit marked as Annex “F”.

[37]   Annex “G”.

[38]   Annex “H”.

[39]   Annex “I”.

[40]   Annex “J”.

[41]   Annex “K”.

[42]   Annex “L” and “L-1”.

[43]   Annex “M”.

[44]   Annex “N”.

[45]   Annexes “O” & “O-1”.

[46]   Annex “P”.

[47]   Annex  “Q”.

[48]   Annex “R”.

[49]   Supplemental Statement marked as Annex  “S”.

[50]   Annex “T”.

[51]   Annexes “U”& “U-1”.

[52]   Annexes “V” & ”V-1”.

[53]   Annexes “W” & “W-1”.

[54]   Annex “X”.

[55]   Annex “Y”.

[56]   Annex “Z”.

[57]   Annex “AA”.

[58]   Annex “BB”.

[59]   Annex “CC”.

[60]   Annex “DD”.

[61]   Annex “EE”.

[62]   Annex “FF”.

[63]   FID REPORT NO. 83-15-5-2013[63] dated 24 May 2012 submitted by Ms. HIYASMIN G. ABARRIENTOS, NBI Ballistician; and FID REPORT NO. 99-3-6-2013 Re: 83-15-5-2013 dated 31 May 2013 prepared by HIYASMIN G. ABARRIENTOS, NBI Ballistician II and approved byISABELO D. SILVESTRE, Jr., Officer-In-Charge, Firearms Investigation Division (“Annex GG”).

[64]   Annex “HH”.

[65]   Annex “II”.

[66]   Affidavit dated 04 June 2013, Special Investigator GARY P. RUIZ of the NBI National Capital Region Command (NCR).

[67]   See sworn statements of SN1 AGUILA, supra.

[68]   Annex “JJ”.

[69]   Annex “KK”.

[70]   Annex “LL”.

[71]   Annex “MM”.

[72]   Annex “NN”.

[73]   Annex “OO”.

[74]   Annex “PP”.

[75]   Annex “QQ”.

[76]   Annex “RR”.

[77]   Annex “SS”.

[78]   Annex “TT”.

[79]   Annex “UU”.

[80]   Annex “VV”.

[81]   Annex “WW”.

[82]   Annex “XX”.

[83]   Annex “YY”.

[84]   Annex “ZZ”.

[85]   Annex “AAA”.

[86]   Annex “BBB”.

[87]   Annex “CCC”.

[88]   Annex “DDD”.

[89]   Annex “EEE”.

[90]   Annex “FFF”.

[91]   Annex “GGG”.

[92]   Annex “HHH”.

[93]     Annex “III”.

[94]      Annex “III-1”.

[95]   Annex “JJJ”.

[96]   Annex “KKK”.

[97]   News Article in Business Mirror, Published on Sunday, 02 June 2013 18:55, written by Joel R. San Juan / Reporter.

[98]    Annex “III-2”.

[99]     Annex “III-1”.

[100] UNCLOS, Article 225 states: In the exercise under this Convention of their powers of enforcement against foreign vessels, States shall not endanger the safety of navigation or otherwise create any hazard to a vessel, or bring it to an unsafe port or anchorage, or expose the marine environment to an unreasonable risk.”

[101] Evan Shear, “The Development of International Law with respect to Law Enforcement of Navies and Coast Guards in Peace Time,” International Law Studies 71, (1998).

[102] Ibid.

[103] Ibid. See also Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Adopted by the Eight United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990, athttps://www.unrol.org/files/BASICP-3.PDF.

[104]  Ibid.

[105] Reports of International Arbitral Awards, Investigation of certain by the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of Denmark on 15 November, 196123 March 1962, vol. XXIX, pp.521-539.

[106] The Commission which decided on the case found “no proof of fishing inside the blue line has been established” despite the fact that the trawler was within the waters inside the “blue line” wherein UK, per Exchange of Notes of April 27th, 1959, between the Danish and United Kingdom Governments relating to the temporary regulations of fishing around the Faroe Islands, was excluded from fishing inside the blue line.

[107] Shearer.

[108]  According to the Commission, “the escape of the “Red Crusader” in flagrant violation of the order received and obeyed, the seclusion on board the trawler of an officer and rating of the crew of “Niels Ebbesen”, and Skipper Wood’s refusal to stop may explain some resentment on the part of Captain Solling. Those circumstances, however, cannot justify such a violent action.” Supranote 21, at 538.

[109] Ibid.

[110] International Tribunal for the Law of the Sea Year, The M/V “Saiga” (No.2) Case (Saint Vincent And The Grenadines V. Guinea) Judgment 1999.

[111] Ibid, para 155.

[112] Ibid, para 156.

[113] Note however that there are two (2) conflicting Monthly Gunnery Reports both dated 11 May 2013.

[114] See Sketch and Photographs marked as Annex “GGG”; see also Ballistic and Trajectory Examination conducted by the NBI as well as Taiwanese Forensic Examination Report.

[115] See. Art. 14, par. 15 of Revised Penal Code, as amended.

[116] People vs. Valerio, 112 SCRA 231.

[117] U.S. vs. Gloria, 3 Phil 333.

[118] G.R. Nos. 120744-46, 122677 and 122776, June 25, 2012.

[119] See previous discussions regarding self-defense.

[120] People v. Delim, G.R. No. 142773, January 28, 2003; see also Esmeraldo Rivera, Ismael Rivera, Edgardo Rivera vs. People of the Philippines, G.R. No. 166326 January 25, 2006.

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