Monday, March 21, 2011

Hold-departure motion vs. motion for judicial determination of probable cause; sample opposition.

Republic of the Philippines
National Capital Judicial Region
 X x x City
Branch  x x x

     Crim. Case No.  x x x
- versus -                               
     For: x x x
X x x,




The Accused x x x, by counsel and to this Honorable Court, hereby vehemently opposes the private prosecution’s “Motion for Issuance of Hold Departure Order”, dated  x x x, a copy of which was received by his undersigned lead counsel on x x x , and which has been set by the private prosecutor for hearing on  x x x at x x x AM , thus::      

1.      The motion for hold-departure order (HDO) is premised on (a) the argument that the accused has failed to surrender despite the issuance of a warrant of arrest and (b) the allegation of probability of flight. 

2.    The motion for HDO fails to state that the accused has a pending motion for judicial determination of probable cause, which is a prejudicial procedural antecedent to the motion for issuance of hold-departure order in that if the accused’s aforecited pending motion were granted then the warrant of arrest, upon which the private prosecution’s pending motion for issuance of hold-departure order is predicated, would be ipso facto set aside, if not rendered moot and academic.

3.    The accused humbly submits that his pending motion for judicial determination of probable cause must first be resolved, the same being a procedural antecedent of senior legal importance.

Note:  For the record, the accused reserves the right to present evidence to prove the allegations in his pending motion for judicial determination of probable cause.

4.    Further, there is no proof, other than the bare allegations in the motion for HDO, that the accused would abscond pendente lite or that he is a flight risk or that he is a person of bad and notorious moral character or that he is a recidivist or a repeat offender or has been convicted of any crime. 

4.1.          The allegations in the motion for issuance of HDO that the accused is a fugitive from justice, that the accused refuses to submit himself to the jurisdiction of the Court, that the accused is an immigrant to America or a naturalized American citizen, and that the family members of the accused are residents of America or China are most unfair and unsupported by evidence.

5.     Furthermore, to give due course to the motion for HDO would be a violation of accused’s constitutional right to travel.

5.1.          A citizen’s constitutional right to travel and constitutional due-process and equal-protection right for judicial determination of probable cause prevail in terms of the hierarchy of constitutional and legal significance over and as against a simple and routine motion for HDO.

6.    Finally, it will be noted that the motion for issuance of HDO is not signed, endorsed and conformed to by the Public Prosecutor, who, under the Rules of Criminal Procedure, represents the State and controls and directs the entirety of the management of the instant criminal case, for which reason the said motion must be denied outright and must be deemed as a mere scrap of paper and an unauthorized and improper pleading that has been filed without a proper locus standi. ON THIS PROCEDURAL BASIS ALONE, THE SAID MOTION DOES NOT DESERVE THE OFFICIAL ATTENTION OF THE HONORABLE COURT, with all due respect to the private prosecutor.

          WHEREFORE, in light of the foregoing, it is most respectfully prayed of this Honorable Court that the private prosecution’s motion for hold-departure order be DENIED, for lack of merit and for being an unauthorized and improper pleading.
          Further, the accused respectfully prays for such and other reliefs as may be deemed just and equitable in the premises.
            X x x City, x x x.


Collaborating Counsel for Accused
x x x
                                                            Roll No. 33640, 4/27/85
IBP Lifetime Member No. 1907
IBP Leyte Chapter
MCLE Compliance No. 2280, 2/16/09
PTR No. 10118909, 1/7/11, Las Piñas

Copy Furnished:
Office of the City Prosecutor
Pubic Prosecutor
City Hall
X x x City
          (personal delivery)

X x x
X x x  Law Offices
Private Prosecutor
X x x
          Reg. Rec. No.
          Date                     PO 


          A copy hereof is served on opposing counsel via registered mail due to the lack of field staff of undersigned co-counsel at this time.

                                              Manuel J. Laserna Jr.
                                               Collaborating Counsel for Accused