Dear PAO,

My sister was a carpark cashier at a mall parking lot. Last year, she was accused and later on charged with qualified theft after she was allegedly caught in possession of cash amounting to P800 during the routine frisking and bag inspection after duty. Her employer claimed that since employees were not allowed to carry any personal items, such as a wallet, inside the cashier’s booth, and that she had undergone frisking and was cleared to start her duty, the cash found in her possession was likely taken from the cash register. We were told that, because my sister was a cashier, she could not have committed the crime without using and abusing her position. Hence, they claim she is automatically liable for qualified theft, which carries a substantially higher penalty than simple theft. Is that true?

Max

Dear Max,

Preliminarily, it is the duty of the prosecution to establish the guilt of the accused beyond reasonable doubt for the offense charged. This means that the prosecution has the duty to prove each and every element of the crime charged in the Information to warrant a finding of guilt for that crime or for any other crime necessarily included therein.

The essential elements of the crime of Qualified Theft punishable under Article 310 in relation to Article 308 of the Revised Penal Code (RPC) are as follows: (1) there was a taking of personal property; (2) the said property belongs to another; (3) the taking was done without the consent of the owner; (4) the taking was done with intent to gain; (5) the taking was accomplished without violence or intimidation against person, or force upon things; and (6) the taking was done under any of the circumstances enumerated in Article 310 of the RPC, i.e., with grave abuse of confidence. (Joy Batislaon Balicbalic v. People, GR 256624, July 26, 2023, Ponente: Associate Justice Mario Lopez)

It is important to note that “[t]he taking in qualified theft must be the result of a relation by reason of dependence, guardianship, or vigilance, between the accused and the offended party that has created a high degree of confidence between them. Thus, grave abuse of confidence by a thieving employee should be contextualized not only by the relationship between the employer and employee, but also by the purpose for which the employee was given the employer’s trust.” (Ibid.)

In the same case, the Supreme Court already made a pronouncement that being regarded as a cashier does not automatically open a criminal liability for qualified theft, absent convincing evidence of grave abuse of discretion anchored on the betrayal of special trust or high degree of confidence.

This means that the prosecution cannot rely solely on your sister’s job description as a carpark cashier to support the allegation that she could not have committed the crime had she not used and abused her position as such, or that the taking was done with grave abuse of confidence.

Notwithstanding the foregoing, from your narration of facts, it may not be amiss to state that the relationship between your sister and her employer can be argued as one that does not entail a high degree of confidence. First, it is quite evident that your sister had not been granted a wide array of discretion in the performance of her functions as carpark cashier, for she was made to follow a specific set of instructions and was subjected to strict compliance with standard operating procedures such as frisking before and after duty, bag inspection, and prohibition on bringing personal items to the booth. These circumstances, when taken altogether, may discount the existence of a high degree of confidence between your sister and her employer.

Ultimately, the prosecution has the duty to prove beyond reasonable doubt that your sister’s employer had special trust or high degree of confidence in her, and that your sister betrayed such trust and confidence to facilitate the taking of the money. If this exploitation of trust is not proven, your sister may only be convicted of simple theft and the abuse of confidence shall merely be treated as a generic aggravating circumstance.

We hope that we were able to answer your queries. This advice was 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.

We appreciate your 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]