Dear PAO,

I am a victim of illegal recruitment. This happened when Gina claimed she could secure a job abroad for me as a nanny in exchange for a certain amount as a processing and placement fee. I trusted her because she was a former OFW for a long time, and she claimed to have connections with her previous employers. I paid the required fees to secure a job abroad. However, several months have passed and Gina failed to provide a plane ticket or an employment contract. I demanded a refund of my payment but the same proved futile. I told her I would file a case for illegal recruitment and estafa against her, but she just laughed and claimed that those two crimes were the same. Is she correct?

Isay

Dear Isay,

Illegal recruitment and estafa are two distinct offenses. Illegal Recruitment is defined under Section 6 of Republic Act (RA) 8042, as amended by RA 10022, otherwise known as the Migrant Workers and Overseas Filipinos Act of 1995. The law provides that:

“SEC. 6. Definition. – For purposes of this Act, illegal recruitment shall mean any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referring, contract services, promising or advertising for employment abroad, whether for profit or not, when undertaken by non-licensee or non-holder of authority contemplated under Article 13(f) of Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines: Provided, That any such non-licensee or non-holder who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. xxx”

Whereas estafa is a crime punishable under Article 315 of the Revised Penal Code of the Philippines, as amended by the RA 10951, which is committed by any person who shall defraud another through unfaithfulness or abuse of confidence, using false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud, or employing other fraudulent means.

For better understanding, the distinctions between the afore-cited crimes or offenses were expounded in the case of People of the Philippines v. Valle, GR 235010, Aug. 7, 2024, where the Supreme Court, through Associate Justice Alfredo Benjamin Caguioa, stated:

“The crimes of illegal recruitment and estafa, while intertwined in many cases of recruitment, have different elements. The penal law on illegal recruitment was enacted specifically as a deterrent to those who conduct recruitment activities without having been previously vetted by the government. It is the commission of acts considered by the law as recruitment activities without possessing the necessary government license or permit, which is the essence of the crime. Thus, in previous cases, the Court classified illegal recruitment as malum prohibitum, where intent to deceive, for instance, is immaterial. As a result, even those who are actually capable of sending workers abroad for employment if their licenses or permits have already expired may still be liable for illegal recruitment.

“On the other hand, the thrust of estafa under Article 315(2)( a) of the Revised Penal Code is broadly to punish those who use deceit, such as false pretenses, in order to gain something and to cause damage to another. Thus, the elements of the crime of estafa are as follows:

“(a) there must be a false pretense, fraudulent act or fraudulent means;

“(b) such false pretense, fraudulent act or fraudulent means must be made or executed prior to or simultaneously with the commission of the fraud;

“(c) the offended party must have relied on the false pretense, fraudulent act or fraudulent means; that is, he or she was induced to part with his or her money or property because of the false pretense, fraudulent act or fraudulent means; and

“(d) as a result thereof, the offended party suffered damage.”

Applying the above-quoted decision to your situation, Gina is incorrect in her claim that illegal recruitment and estafa are the same. Illegal recruitment is malum prohibitum and the offender is being punished for simply committing those prohibited practices enumerated under Section 6 of RA 8042, as amended, without the necessary license. On the other hand, in estafa, by means of false pretenses, the offender employs deceit, such as falsely pretending to possess power, influence, or agency, among others, to gain something or cause damage to the victim. It is malum in se, that is to say, the intent is material to prove the criminal liability of the offender. Considering the different nature and elements of the crimes of illegal recruitment and estafa, Gina may be held liable for both crimes if all the elements of the two crimes are present and can be proven in court.

We hope that we are able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Thank you for your continued trust and support.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected]