GOVERENMENT OF HONG KONG V MUNOZ In this case, there is no showing that private respondent presented evidence to show that he is

not a flight risk. Consequently, this case should be remanded to the trial court to determine whether
PETITIONER: GOVERNMENT OF HONGKONG SPECIAL ADMINISTRATIVE REGION, private respondent may be granted bail on the basis of "clear and convincing evidence."
REPRESENTED BY THE PHILIPPINE DEPARTMENT OF JUSTICE
RESPONDENT: JUAN ANTONIO MUNOZ, As to the main case of extradition:
DATE: August 16, 2016  CA affirmed the RTC's conclusion that the crimes of conspiracy to defraud and
PONENTE: BERSAMIN accepting an advantage as an agent were extraditable offenses;
TOPIC: EXTRADITION o that not only was conspiracy to defraud explicitly included in the offenses
covered by the RP-HK Agreement, but also that both crimes satisfied the
FACTS: double criminality rule, or the principle to the effect that extradition was
 1991, respondent-appellant, as Head of the Treasury Department of the Central Bank available only when the act was an offense in the jurisdictions of both parties;
of the Philippines. o It was not for the Philippine court to determine the extent of the criminal
o Was instructed by its Governor to raise 700M Dollars in order to fund the jurisdiction of the foreign court because entering into questions that were the
buyback of Philippine debts and the purchase of zero coupon US Treasury prerogative of that other jurisdiction was the function of the assisting
Bonds. authorities.
 Rspondent-appellant recommended that the amount be obtained through gold
loans/swaps, for which, seven (7) contracts of $100M each were to be awarded to CA, affirming its previous ruling, it concluded that the crime of accepting an advantage as an agent
certain accredited parties. should be excluded from the charges under which Muñoz would be tried due to non-compliance
o Two (2) of these contracts were granted to Mocatta, London. with the double criminality rule.
o These in turn were rolled over as they matured, hence, totaling five (5) gold
loan/swap agreements in Mocatta, London's favor. ISSUE: WON crime of accepting an advantage as an agent did not comply with the double
criminality rule.
 Between February 1992 to March 1993, there were a series of "gold swaps" and gold
backed loans between CBP (sic) and Mocatta (London) through MHK in Hong Kong. HELD: NO
The transactions were a means for CBP to raise finance.
o Mocatta (London) paid out rebates of US$1,703,304.87 to an account ("the For purposes of the extradition of Munoz, the HKSAR as the requesting state must establish the
Sundry Creditors Account") which were subsequently disbursed to the benefit following six elements
of CHI and MUÑOZ personally (1) there must be an extradition treaty in force between the HKSAR and the Philippines;
(2) the criminal charges that are pending in the HKSAR against the person to be extradited;
 None of the above payments were known to CBP and none of them ever reached CBP. (3) the crimes for which the person to be extradited is charged are extraditable within the terms of
the treaty;
Invoking the Agreement Between the Government of the Republic of the Philippines and the (4) the individual before the court is the same person charged in the HKSAR;
Government of Hong Kong for the Surrender of Accused and Convicted Persons (5) the evidence submitted establishes probable cause to believe that the person to be extradited
 Hong Kong Special Administrative Region (HKSAR) sent Note to inquire on which committed the offenses charged; and
agency of the Philippine Government should handle a request for extradition under the (6) the offenses are criminal in both the HKSAR and the Philippines (double criminality rule)
RP-HK Agreement.
 The first five of the elements inarguably obtain herein, as both the RTC and the CA
DOJ, received the request for the provisional arrest of Muñoz found.
 NBI initiated the proceedings for his arrest in the RTC – GRANTED, issued the
corresponding order of arrest. However, it was as to the sixth element that the CA took exception as not having been established.

Muñoz challenged through certiorari, prohibition and mandamus the validity of the order for his Under the double criminality rule, the extraditable offense must be criminal under the laws of
arrest both the requesting and the requested states".

CA, declared the order of arrest null and void The HKS AR defines the crime of accepting an advantage as an agent under Section 9(1)(a) of
the Prevention of Bribery Ordinance (POBO)
 For the meantime, DOJ, representing the HKSAR, filed a petition in the RTC for the
surrender of Munoz to the HKSAR to face the criminal charges against him in Hong  A perusal of the decision of the RTC and the original decision of the CA show that said
Kong. courts determined that the crime of accepting an advantage as an agent was analogous
to the crime of corrupt practices of public officers as defined under Section 3 of Republic
Munoz filed a petition for bail. Act No. 3019 (Anti-Graft and Corrupt Practices Act)
o however, the CA reversed itself, and agreed with Muñoz to the effect that
RTC, denied petition for bail after hearing on the ground that there was no Philippine law that Section 9(1)(a) of the POBO referred only to private individuals, not to
allowed bail in extradition cases, and that he was a high "flight risk." persons belonging to the public sector.
 Subsequently, Judge Olalia, Jr. allowed bail to Muñoz under the conditions stated in the
order of that date – which was challenged by DOJ A careful reading shows that the foreign law subject-matter of this controversy deals with bribery
in both public and private sectors.
However, it is also quite evident that the particular provision of the POBO allegedly violated by
Muñoz, i.e., Section 9(1 )(a), deals with private sector bribery -this, despite the interpretation
under Section 2 of the POBO that an "agent includes a public servant and any person employed
by or acting for another."

 It cannot be argued that Section 9(1)(a) of the POBO encompasses both private
individuals and public servants

Considering that the transactions were entered into by and in behalf of the Central Bank of the
Philippines, an instrumentality of the Philippine Government, Munoz should be charged for the
offenses not as a regular agent or one representing a private entity but as a public servant or
employee of the Philippine Government.

Yet, because the offense of accepting an advantage as an agent charged against him in the
HKSAR is one that deals with private sector bribery, the conditions for the application of
the double criminality rule are obviously not met.
 Accordingly, the crime of accepting an advantage as an agent must be dropped from
the request for extradition.
 Muñoz should be proceeded against only for the seven counts of conspiracy to defraud.
As such, the HKSAR shall hereafter arrange for Muñoz's surrender within the period
provided under Article 15 of the RP-HK Agreement.