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By: Alexander Llanes Acain, Jr.
Just this afternoon, 93 Chinese nationals were arrested at the Ortigas Techno Point Building 2 in Pasig City after an operation against illegal online gambling was conducted. The PNP Regional Special Operations Unit (RSOU) raided the Finasia Tech Inc. office by the search warrant issued by the Regional Trial Court, Branch 146 of Makati City.
Inquest proceedings at the Prosecutors’ Office
Individuals who are arrested in this operation will have to undergo inquest proceedings at the prosecutors' office in Pasig City. The purpose of the inquest proceedings is to determine whether the evidence against the persons arrested in this operation is sufficient that they should remain under police custody and correspondingly charged in court for violation of Section 6 (Committing crimes through communication technology) of R.A.10175 or the Cybercrime Prevention Act of 2012, and P.D. 1602 or the Stiffer Penalties on Illegal Gambling.
The prosecutor assigned in the case has to resolve the complaint within 18 hours because the penalty imposable on the offense for illegal gambling through communication technology is a correctional penalty. But this is only true in so far as the employees are concerned. Those who are officers and Directors who are directly involved in the operation of this alleged illegal gambling operation will have a higher penalty of prision mayor which is afflictive. This means that the prosecutor may resolve the case within 36 hours for those persons charged where the penalty imposable is an afflictive penalty. The persons arrested have the right to be released for further investigation if the prosecutor shall fail to resolve the case within the prescribed period or whenever there is an insufficiency or lack of evidence.
The right of preliminary investigation, Right to Bail, and waiver under Article 125
The persons arrested, most probably the ordinary employees who are arrested in this Police operation may ask for a preliminary investigation where they can submit their Counter-Affidavits stating their innocence, lack of knowledge and non-participation of any illegal gambling activities, as alleged. But they may have to sign a waiver of their rights under Article 125 of the Revised Penal Code in the presence of their legal counsel. This means that the prosecutor will have a longer period to resolve the complaint. In the meantime, the arrested persons can apply for bail while their case is pending before the prosecutors’ office. A waiver under Article 125 of the Revised Penal Code simply states that you are waiving your right against illegal detention and you are consenting to be detained more than the prescribed periods - 18 and 36 hours, respectively in this case, subject of course to your right to bail.
In the alternative, the arrested persons may opt to proceed with the inquest proceedings and ask for a preliminary investigation within five (5) days from their knowledge that an Indictment or Information has been filed against them in Court. In some instances, this may be a good option if the offense for which you have been charged is a bailable offense and you wanted to get out of jail immediately because the prosecutor will file the case immediately with the Court and you take your application for bail from there. More often than not, the Court will count the 5 days period for purposes of your request for preliminary investigation from the date when you apply for bail. Please see here the related article on how to post bail.
The Custodial Investigation Report
The Police Officer will have to prepare a custodial investigation report when there are persons arrested during a warrantless arrest. In order to safeguard the rights of the persons arrested during a warrantless arrest, the custodial investigation report shall be: (1) reduced to writing, signed or thumb-marked by the person arrested; (2) adequately explained to the person arrested or by assisting counsel in the language or dialect known to him prior to signing or thumb-marked thereto; and (3) for alien nationals, an interpreter will have to explain the contents of the Custodial Investigation Report. The Custodial Investigation Report is null and void if these guidelines are not followed to the letter.
Immigration issue related to the arrest
I have been handling various high profile criminal cases where initially, the Bureau Immigration does not intervene no matter how controversial and widely publicized the cases. The Bureau of Immigration normally intervenes and will look into the possible immigration violation if requested by the Law Enforcement Agency on case.
Deportation Proceedings at the Bureau of Immigration
The Bureau of Immigration will normally charge the aliens who are arrested in a Police Operation as undesirable aliens and therefore candidates for deportation. For instance, the Bureau of Immigration also has the power to arrest the Chinese nationals who are arrested in this operation, concerning the deportation charges against them even if Bail has been previously granted by the Court for their temporary liberty. The legal remedies that are available when you are arrested by the immigration operatives are also available here such as applying for another bail at the Bureau of Immigration or request for voluntary deportation if you wanted to be deported to your country immediately. But please take note that you should have no criminal cases pending before the Courts so your request for voluntary deportation will be granted. In this case, your case for violation of Section 6 (Committing crimes through communication technology) of R.A.10175 or the Cybercrime Prevention Act of 2012, and P.D. 1602 or the Stiffer Penalties on Illegal Gambling should be resolved with finality as a pre-condition for your immediate deportation.
ABOUT THE AUTHOR
Alexander Llanes Acain, Jr. is an immigration and criminal lawyer with more than 20 years of experience in immigration and criminal law practice. He has been giving legal advise and providing legal representation to aliens who have been criminally charged before Philippine Courts and are also facing deportation charges before the Bureau of Immigration. He can easily be reached by email at email@example.com or Mobile/WhatsApp +639175002878.